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Laesio enormis in Muhammadan Law1
Published online by Cambridge University Press: 24 December 2009
Extract
Muhammadan Law, like many other legal systems, leaves it entirely to the parties to make their own bargain. They can fix any price they like; there is no rule demanding its fairness or adequacy. Consequently there is also no remedy against a bargain solely on the ground that the one party has suffered a loss by reason of disproportion between his own and the other party's prestations (Arts. 356, 441 Mejelle, Art. 221 O.H.).
Yet inadequacy of price is not without importance in the Laws of Sale and Hire. In its desire to protect minors, Waqfs, and the State Treasury (Bait al-Māl) from unprofitable transactions, Muhammadan Law has made inadequacy of price a ground for relief when the bargain has been made on behalf of such persons or institutions.
- Type
- Papers Contributed
- Information
- Bulletin of the School of Oriental and African Studies , Volume 10 , Issue 4 , February 1942 , pp. 877 - 884
- Copyright
- Copyright © School of Oriental and African Studies 1942
References
page 877 note 2 Art. 394 Mej. is no exception to this statement. The heirs of a person who has sold an article during mortal sickness under its value have the right to cancel the sale if his generosity amounted to more than a third of his property and the purchaser does not make good the deficiency up to this mark. The criterion for the existence of the right of cancellation is the amount of the inheritance, not the value of the thing.
page 877 note 3 SirTyser, Charles, The Mejelle, Nicosia, 1901, Arts. 165, 356Google Scholar.
page 877 note 4 Hooper, C. A., The Civil Law of Palestine and Iraq, Part I Mejelle, Jerusalem, 1933, Arts. 165, 356Google Scholar.
page 877 note 5 Dr. V. FitzGerald.
page 877 note 6 Art. 357 Mejelle, see also Art. 164.
page 878 note 1 DrGrigsby, E., The Mejelle, Nicosia, 1901, Arts. 165Google Scholar.
page 878 note 2 Omar Hilmi (translated by Tyser, Sir Charles and Demetriades, G. D.), A gift to posterity on the Law of Evqaf, 2nd ed., Nicosia, 1922 (quoted as O.H.), Art. 389Google Scholar.
page 878 note 3 Young, , Corps de droit ottoman, vol. vi, 2, Oxford, 1906, Arts. 165, 356Google Scholar.
page 878 note 4 Hamilton, C., The Hedaya or Commentary on the Mussulman Laws, 2nd ed. by Grady, S. G., London, 1870, p. 388Google Scholar.
page 878 note 5 Hamilton-Grady, , Hedaya, p. 388Google Scholar.
page 878 note 6 Ibid.
page 879 note 1 Ijāratain (double rent) is in theory a lease of Waqf property granted against payment of a premium and successive yearly rents with a right of perpetual renewal. In fact it is “a perpetual beneficial interest” (Goadby-Doukhan, , The Land Law of Palestine, Tel Aviv, 1935, pp. 9 ffGoogle Scholar.) which is assignable and inheritable, though not according to the sacred law of inheritance.
page 879 note 2 Mej. Art. 356.
page 879 note 3 Grigsby, Mej. Art. 356.
page 879 note 4 Muhammadan Law according to its various Schools, Oxford, 1931, p. 110Google Scholar.
page 879 note 5 Hammishpat Ha‘ivri (The Jewish Law), Book I, Tel Aviv, 1926, p. 31Google Scholar. This, according to Dickstein, seems to be the view of the Turkish interpreters of the Mejelle.
page 879 note 6 This reference comes from Dr. V. FitzGerald and has been translated by Professor H. A. B. Gibb.
page 879 note 7 Cf. Baillie, N. B. E., The Moohammadan Law of Sale according to the Huneefeea Code from the Futawa Alumgeeree, London, 1850, p. 246Google Scholar, distinguishing between such a sale to a stranger (lawful) or to the guardian (lawful only if clearly advantageous). Both in the case of Waqf and in the case of minors the rule of ghabn fāhish is only one of the safeguards which the law imposes for the protection of the helpless against the possible misconduct or negligence of their legal protectors.
page 880 note 1 The Holy Quran. Arabic Text with Engl. Translation and Commentary by Ali, Maulvi Muhammad, Woking, Surrey, 1917, pt. ii, 220; iv, 6; iv, 10; viii, 153; iv, 2Google Scholar: “And give to the orphans their property, and do not substitute worthless (things) for their good (ones) and do not devour their property (as an addition) to your own property. This is surely a great crime.”
page 880 note 2 Hamilton-Grady, , Hedaya, p. 387Google Scholar; cf. as to dower p. 41.
page 880 note 3 Fatāwa Qāḍi-Khān, a work contemporary with but probably slightly older than the Hidāya. The author's absence on military duty unfortunately prevents exact reference.
page 880 note 4 Aghnides, N. P., Móhammadan Theories of Finance, with an introduction to Mohammadan Jurisprudence, New York, 1916, p. 434Google Scholar.
page 880 note 5 Hamilton-Grady, p. 41, 387Google Scholar; Aghnides, , p. 434Google Scholar.
page 880 note 6 Hamilton-Grady, , Hedaya, p. 387Google Scholar.
page 881 note 1 “Bi-manzalat ul uakīl.” See note on preceding page.
page 881 note 2 Art. 364 Mej. does not apply to our question. It concerns Arts. 237 ff.
page 882 note 1 Hamilton-Grady, , p. 387Google Scholar; cf. as to dower p. 41.
page 882 note 2 Hamilton-Grady, , Hedaya, p. 387Google Scholar.
page 882 note 3 Ibid., p. 388.
page 882 note 4 Ibid., loc. cit.
page 882 note 5 7 Cyp. 102.
page 882 note 6 Apparently similar rules apply also to the Tapu fee of MM property. See Art. 87 Ottoman Land Code, 1858. Goadby-Doukhan, loc. cit., pp. 26 ff.
page 883 note 1 Grigsby, loc. cit., and Tyser, loc. cit., Art. 441 “Imperfect”. Young, loc. cit., “annulable.”
page 883 note 2 i.e. 20 per cent Art. 165 Mej., Art. 390 O.H.
page 883 note 3 There is no authority that this applies also to the letting of property of minors.
page 884 note 1 (1917) 44 I.A. 147; 40 M. 700; 39 I.C. 722 (1917) A. PC. 33.
page 884 note 2 Baillie, N. B. E., A Digest of Moohammadan Law, 2nd ed., London, 1875, p. 607Google Scholar.
page 884 note 3 The rent is excessive if it is 20 per cent or more higher than the renting value of such thing (Art. 391 O.H.).
page 884 note 4 Hamilton, (Grady), Hedaya, pp. 41, 387 ffGoogle Scholar.