Browsing by Department "Department of Islamic Law"

This study addresses a very critical issue in the area of contracts, particularly on the framework of the administrative supply contracts in the Sultanate of Oman in light of Islamic law. The research discusses several major themes including the definition of supply contracts, their provisions and their respective Islamic law and legal characterization and the governing principles applicable to such contracts and any exceptions thereof. Additional concerns discussed were the performance bonds, penalties, the arbitration clause and as well as the force majeure – when to resort to it and when it becomes applicable. This is in addition to the cases of unjustifiable termination of the supply contracts whether at the sole discretion of the management or termination for gross error on the part of the management. Moreover, the study also reviews the latest developments in the Omani legislation which may affect the supply contracts and their role in protecting and safeguarding the public fund and, hence, stimulating the national economy by supporting small and medium sized enterprises (SMEs). The problem identified by the study is the lack of legally defined rules and an inclusive reference for the clauses of supply contracts. This is in addition to the divergent rules resulting from addressing the various contractual issues through the application of the law. The study aims to alert the administrative, security and military entities to adhere to the legal principles in their contractual matters. The research used the inductive, analytical and applied approaches enabling the researcher to come up with critical findings including the countless methods available for the creation of the supply contracts to ensure the proper approach suitable for each contract according to its scope of supply, the financial threshold and the exceptions to the enforceability of the contract. This requires that parties to the contract to introduce the necessary measures to maintain a balanced contractual relation between the contracting parties. The study concluded with recommendations to ensure the legal framework of the supply contracts is to put into action in terms of oversight and measures to maintain the financial balance of these contracts.

The study addresses the issue of legal regulation of the rights of real estate financing parties in Islamic banks in the Sultanate of Oman, as real estate financing is one of the most important ways to solve the problems of the housing crisis that most countries suffer from. Therefore, countries paid attention to real estate financing activity and regulated all its aspects with special, peremptory laws related to public order to protect the rights of its parties and to maintain the social and economic security of the state. The problem of the study lies in the absence of a special legal text in Omani legislation that regulates the rights of parties to real estate financing in general and Islamic financing in particular. Which resulted in conflicting judicial rulings and differing opinions about protecting the rights of parties and penalties for violating them. Therefore, the study seeks to address this shortcoming and find realistic solutions to the shortcomings by studying the rights of real estate financing parties in Islamic banks in the Sultanate of Oman and demonstrating the comprehensiveness and shortcomings of the general legal rules in Omani legislation to protect these rights. And the extent to which it keeps pace with modern and rapid developments in this field. The study touched on the concept of real estate financing, its characteristics and aspects, and the reality of Islamic real estate financing in the Sultanate of Oman. Then, it explained the rights of the financier (the bank), the penalty for violating them, and the necessary guarantees to fulfill these rights. Then I moved on to explain the rights of the financing applicant (the client), whether before or after concluding the contract, and the penalty for violating these rights. The study also explained the judicial protection of the rights of real estate financing parties. It first explained the judicial protection of the rights of the financier and then moved on to explaining the foundations of judicial protection of the client’s rights. To achieve the objectives of the study, the study followed the descriptive and comparative analytical approach. The study concluded several results, the most important of which is that the Omani legislator did not regulate the issue of real estate financing in general and Islamic financing in particular in a separate law. Which resulted in legal loopholes that led to judicial rulings that were not compatible with the provisions of Islamic Sharia, And The study recommended the necessity of issuing a special law for real estate financing, provided that its provisions do not contravene the provisions of Islamic Sharia and the opinions of jurisprudential academies, in order to resolve disputes and conflicting judicial rulings.

This study aims to address the legal protection of the insured against specific penalties in both commercial insurance and Takaful insurance under Omani law, and compare it with Jordanian and Egyptian laws. The problem in this study lies in the fact that the insured party in the insurance contract is a weak party (given that the insurance contract is an adhesion contract). Accordingly, the insurer often solely drafts the contract and frequently includes harsh penalties that violate the general theory of contractual liability, which makes it likely to be unjust and inequitable, leading to a disruption of the intended contractual balance, as is the case with what is called penalty of nullity, penalty of lapse, or insurance suspension penalty. The study employed the inductive, analytical, and comparative methods. The study concluded that the Omani legislator's abandonment to regulate insurance contracts has left ample room for insurers to include harsh penalties in their contracts. In contrast, it can be noticed that the Egyptian and Jordanian legislators' regulation of the insurance contract has significantly curtailed the insurer's powers to include such penalties in the contracts he undertakes. The study concluded with several recommendations, the most important of which is that the legislator of the studied jurisdiction should enact a special law to regulate insurance contracts, given its significant economic and social importance, and its unique provisions distinct from other contracts. Also, a special recommendation to the Omani legislature is to follow the Egyptian and Jordanian legislators in combating insurance penalties by imposing additional substantive and procedural restrictions on the legitimacy of these penalties. It is also suggested that the Omani legislature impose restrictions on insurance companies to ensure that the insured are fully informed about the terms and conditions of insurance documents.

This research discusses the provisions of maritime cargo transportation in Islamic jurisprudence and their application in Yemeni maritime law. The study elucidates the nature and characteristics of maritime transport contracts, identifying the obligations imposed on the carrier and the shipper. It also delves into the provisions of the bill of lading which is the document that contains the details of the transported goods and the terms of transport, playing a crucial role in commercial exchanges. Additionally, the research addresses the liability of the maritime carrier in cases where the transported goods are damaged. The study further explores the application of Islamic legal principles related to maritime cargo transportation in Yemeni maritime law. This research aims to collect the jurisprudential rulings that address the issue of transporting goods that spread across various chapters of jurisprudence and then applying them to Yemeni maritime law. The research concludes that Islamic jurisprudence is rich with rules and provisions that regulate contractual transactions between shipowners on one hand and cargo owners on the other, encompassing various aspects of maritime transportation. These provisions are distinguished by their ability to safeguard the rights of both the carrier and the shipper by ensuring a balance and equity between their rights and obligations and avoiding the potential abuse of power by the stronger party in the maritime transport contract. Moreover, these provisions guarantee fair compensation to the injured party in cases of loss, damage, or delay of goods without stipulating exemption from liability or setting a predetermined amount. The maritime carrier's liability is established based on a presumed responsibility, from which the carrier cannot disclaim unless proving an external cause. Keywords: maritime cargo transportation, provisions of Islamic jurisprudence, goods, Yemeni maritime law.

This study deals with The Application of the legal maxim, "Custom is a Basis for Judgement" (al-'Adah Muhakkamah) 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.

This research aims to shed light on the formulation of the legal framework for free and fair election to the Shura Council in the Sultanate of Oman in a comprehensive and precise manner. This is achieved through studying the general legal jurisprudential foundations of their elections, historical trajectory, types, methods, and conditions. It also involves investigating the principles, foundations, and legal guarantees of free and fair elections, by discussing the electoral system of the Shura Council in the Sultanate of Oman by specifying the relevant committees, their levels, and jurisdictions. This study also examines the rules of electoral campaigning, electoral participation procedures, counting, and announcement of results. Additionally, it also takes into consideration the challenges faced in conducting free and fair elections for the Shura Council in the Sultanate of Oman, identifying electoral crimes, their consequences, and the requirements and possibilities for ensuring free and fair elections. The research problem lies in the need to ascertain the extent to which the legal frameworks for electing members of the Shura Council contribute to achieving the freedom and integrity of elections in the Sultanate of Oman. This research aims to identify the legal frameworks for electing members of the Shura Council and to elucidate their contribution to ensuring the freedom and integrity of elections. It also seeks to examine the electoral system employed for electing members of the Shura Council in the Sultanate of Oman from all its legal and legislative dimensions. This is done to uncover the most significant difficulties that ensure freedom and integrity in the elections of the Shura Council members in the Sultanate of Oman, and to identify the necessary requirements to warrant the achievement of freedom and integrity. This is carried out in order to formulate the legal framework for free and fair elections to the Shura Council in the Sultanate of Oman. The researcher has employed and applied the descriptive-analytical method, the inductive method, and the applied method. This research concluded with a series of findings and recommendations, the most prominent of which is highlighting the shortcomings in current legislative texts and proposing alternative provisions. Additionally, it suggests the codification of certain procedures and the introduction of specific guidelines to ensure the realisation of freedom and integrity in elections.