تطبيق قاعدة " العادة محكمة " في قانون المعاملات المدنية العماني لسنة 2013

Abstract

This study deals with The Application of the legal maxim, "Custom is a Basis for Judgement" (al-?A?dah Muh?akkamah) in the Sultanate of Oman. Custom has been incorporated in the civil legislation of many Arab and Islamic countries. One example is the Omani Civil Transactions Law 2013 (CTL). The main question that this study addresses is to what extent the Omani CTL adheres to this maxim in terms of application and disregard. The thesis finds that Omani law has applied custom in many areas. However, it is noticed that Omani law disregarded the use of the custom in other subjects. The study aims to discuss the effect of the rule of "Custom is a Basis for Judgement" and its consideration by jurists and legalists to assess the extent of the application of this maxim in the Omani CTL. This thesis also discusses the aspects of implementing this maxim to indicate the impact of disregard. Additionally, the study has formulated and proposed solutions and suggestions to address this deficiency and disregard. The study relied on descriptive, analytical, and critical approaches to analyse articles, legal texts, and judicial rulings. It also employed the inductive method in researching and extrapolating the scattered details on the topic from various sources, references, laws, and judicial rulings. Additionally, it utilised a comparative approach with the Egyptian and Jordanian civil law. The study includes outcomes from interviewing judges and those with experience and expertise in the legislative and judicial fields. The main finding of this study includes that the Omani laws were affected by the use of the legal maxims in general and by the maxim " Custom is a Basis for Judgement " in particular. The influence has also been reflected in the Omani judicial rulings, as the judiciary has applied this maxim in its judgements. Hence, this maxim has impacted the rulings of the judiciary and the principles of the Supreme Court of Oman. The Omani legislator has applied custom in more than thirty instances, including the implementation of custom in determining the measure of arbitrariness in the use of the right, the implementation of custom in allowing conditions in contracts, and the implementation of custom concerning guaranteeing hidden defects. On the other hand, the Omani legislator did not apply the custom in over twenty instances compared to the Egyptian and Jordanian legislations, including the disregard of the rules for interpreting the contract emanating from the legal maxim following the Egyptian legislator's approach, whereas the Jordanian legislator has outlined more than twenty such rules. Additionally, custom in sharecropping has been overlooked despite its need, aligning with the Jordanian legislator and diverging from the Egyptian legislator's approach. Moreover, customs related to Aflaj (traditional irrigation systems) have been ignored, despite their prevalence and the reliance of Omani judicial rulings on them, following the Egyptian and Jordanian legislations. The study recommends some suggestions to address and reform the problem, as mentioned in the conclusion of this thesis.