Principles of Islamic Jurisprudence by MH kamali

Custom has also found its way into the shariah

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Unformatted text preview: number of people within a large community will not be authoritative, nor would a usage of this nature be upheld as the basis of a judicial decision in Shari'ah courts. The substance of this condition is incorporated in the Majallah al-Ahkam al-`Adliyyah where it is provided that `effect is only given to custom which is of regular occurrence' (Art. 14). To give an example, when a person buys a house or a car, the question as to what is to be included in either of these is largely determined by custom, if this is not otherwise specified in the terms of the agreement. More specifically, one would need to refer to the common practice among estate agents or car dealers respectively. But if no custom could be established as such, or there are disparate practices of various sorts, no custom could be said to exist and no judicial order may be based on it. Custom, in order to be upheld, must not only be consistent but also dominant in the sense that it is observed in all or most of the cases to which it can apply. If it is observed only in some cases but not in others, it is not authoritative. Similarly, if there are two distinct customary practices on one and the same matter, the one which is dominant is to be upheld. If, for example, a sale is concluded in a city where two or three currencies are commonly accepted and the contract in question Principles of Islamic Jurisprudence ~ Kamali 250 [9. Mahmassani, does not specify any, the one which is the more dominant and common will be deemed to apply. Mahmassani, Falsafah, pp. 133-134; Sabuni, Madkhal, pp. 139-140; Isma'il, Adillah, pp. 398-399.] 2) Custom must also be in existence at the time a transaction is concluded. In contracts and commercial transactions, effect is given only to customs which are prevalent at the time the transaction is concluded, and not to customs of subsequent origin. This condition is particularly relevant to the interpretation of documents, which are to be understood in the light of the custom that prevailed at the time they were written. Consequently, a rule of custom which is prevalent at the time the interpretation is attempted will not be relevant if it only became prevalent after the document was concluded. For it is generally assumed that documents which are not self-evident and require clarification can only convey concepts that were common at the time they were written. [11. Mahmassani, Falsafah, p.134; Sabuni, Madkhal, p. 143.] 3) Custom must not contravene the clear stipulation of an agreement. The general rule is that contractual agreements prevail over custom, and recourse to custom is only valid in the absence of an agreement. Since contractual agreements are stronger than custom, should there arise a conflict between them it will normally be determined in favour, of the former. If for example the prevailing custom in regard to the provision of dower (mahr) in marriage requires the payment of one-half at the time of the conclusion of the contract and the remainder at a later date, but the contract clearly stipulates the prompt payment of the whole of the dowe...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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