REPORT OF THE COMMISSION APPOINTED TO DRAFT THE
The science of Mohammedan jurisprudence in its relation to temporal matters is divided into sections dealing with domestic relations, civil obligations and punishments. The fundamental laws, of civilized Nations are also divided into these three sections, the section dealing with civil obligations being called civil law. In recent times, however, commercial transactions have extended considerably, and for this reason a large number of exceptions to the original law have been created, such as bills of exchange and bankruptcy, and a separate Commercial Code has been drawn up containing these exceptions. This Code is applied in commercial matters, but in other respects recourse must be had to the civil law. For example, in a case dealt with in the Commercial Court in accordance with the terms of the Commercial Code, recourse must be had to the original law in respect to such various matters as pledge, guarantee and agency. Similar procedure is adopted in actions brought in respect to civil rights arising out of criminal offences. Many laws and regulations corresponding to the civil law have been promulgated both in former times and recently in the Ottoman Empire; but although these laws and regulations are not sufficient for the settlement of all civil obligations, that branch of Mohammedan jurisprudence relating to civil obligations is amply sufficient for such purpose. It is true that the reference of actions to Sharia and civil law is the cause of certain difficulties. Sharia matters, however, are settled in accordance with Islamic Law by the Civil Courts of Cassation presided over by Sharia judges, who also deal with civil matters, the difficulty being overcome in this manner, since the science of Islamic jurisprudence is the origin and source of the civil laws and regulations, a number of subsidiary matters dealt with by the Civil Courts being settled by applying the rules of Islamic jurisprudence. The members of the Courts of Cassation, however, have no knowledge of these rules, and this has given rise to a considerable amount of suspicion and gossip that the Sharia judges, when dealing with matters other than those comprised within the laws and regulations promulgated by the State, conduct the proceedings in whatever way they wish.
The Commercial Code is also applied in the Commercial Courts of the Ottoman Empire, but the various matters which have no relation to commercial actions are a source of great difficulty. If recourse is had to the laws of Europe, no judgment can be based thereon in the Courts of the Ottoman Empire, since these laws have not been promulgated by Royal Irada. If they are referred to the Sharia, however, the Sharia Courts are bound to treat such various matters on the basis of an original action. The rules of procedure of the two Courts, in fact, are fundamentally divergent and for this reason confusion is bound to occur. The result is that no reference can be made from the Commercial Courts to the Sharia Courts. If it is argued that the members of the Commercial Courts should refer to the treatises on Islamic Law, such argument is untenable, since these per. sons are in the same position in matters relating to Islamic jurisprudence as members of the Courts of Cassation.
The resources of the science of Islamic jurisprudence, however, are inexhaustible and it is possible to find therein the answer to all questions necessary to solve the difficulties which are dependent upon expert knowledge thereof. In particular, a large number of interpreters of all ranks of the Hanifite school have arisen, the result being a large number of divergences of opinion. In spite of this fact, however, the Hanifite school did not crystallize as was the case of the Shaft school, but on the contrary has split up into innumerable sections and opposing sub-divisions. The result is that great difficulty has been occasioned in distinguishing the truth among these conflicting views, and applying the same to any given set of facts.
At the same time, questions of Islamic jurisprudence which were based upon custom have changed with the change in the times. For example, Islamic jurists in former times held that it was sufficient to inspect one room of a house which it was proposed to buy. Subsequent jurists, however, have held that it is necessary to inspect every room. This, however, is not a fundamental change in regard to evidence, but has arisen out of custom regarding building construction, the effect of which was that in former times every room of a house was built to a standard pattern and the inspection of one room was equivalent to an inspection of all. In later times, however, it became the custom to construct houses with rooms differing from each other, and consequently it became necessary to inspect each room. In fact, the essential point was to obtain sufficient knowledge with regard to the contemplated purchase. Consequently, the Original rule of Islamic jurisprudence has not been changed, but the method of applying this rule to any given set of facts has changed with the change in the times. A great deal of attention is also required to distinguish between the change in the times in such matters and a change in respect to proof.
It is a matter of great difficulty to obtain a knowledge of the principles of Islamic jurisprudence, and although at one period the jurists and learned men of the time assembled together and compiled treatises such as the Tatarkhanieh and the Fatavai Jihangerieh embracing the questions of Islamic jurisprudence according to the Hanifite school, they were not able to deal with the whole of the details thereof, nor of the divergences of the school.
By Fatwa books is meant those compilations which contain fatwas issued regarding the application of the rules of Islamic jurisprudence to any given set of facts. There is, perhaps, no necessity to state how difficult it is to collect together the fatwas which have been issued by Hanifite jurists in respect to such matters during the course of the centuries. For this reason, Ibn Nujaim collected together a number of rules and questions and included there under in compendious form the details of Islamic jurisprudence. Succeeding centuries, however, were not so favorable to studies in Islamic jurisprudence as was formerly the case. People were content with the labors of Ibn Nujaim and no attempt was made to work on the ground which he had prepared.
At the present time, owing to the scarcity in any given locality of persons versed in Islamic jurisprudence, it is a matter of difficulty to find even a sufficient number of judges in the Sharia Courts of the Ottoman Empire, not to mention the question of finding members of the Civil Courts who, in case of need, could refer to the treatises on Islamic jurisprudence for the solution of any doubtful question. Consequently, if a work were compiled devoid of divergences and including only accepted opinion with regard to civil obligations in Islamic Law and which is easy to refer to, all persons could easily study the same and apply the contents thereof to civil obligations. In the event of a book being in existence compiled in this manner, it would be of immense value to the judges of the Sharia Courts, members of the Civil Courts, and administrative officials who, by studying the same, could, if necessary, conduct their business in accordance with the precepts of Islamic jurisprudence. Such a book would be in force in the Sharia Courts and there would be no need to enact a law for civil actions in the Civil Courts. These are considerations which, for some time past, has made it desirable to produce an authoritative work of this nature. With this object in view, a Committee of jurists was set up in the office of the Legislative Council and a large number of questions were dealt with. The labors of this Committee, unfortunately, did not reach fruition, which, like many other beneficial matters, had to be adjourned until the time of His Majesty the present Sultan.
In accordance with the orders of His Majesty the Sultan to produce a work of this nature, sufficient for the application of the doctrines of Islamic jurisprudence to the daily civil obligations of the people, we met in the office of the High Court and collected together those matters of Islamic jurisprudence, according to the Hanifite school, which relate to civil obligations and are of frequent occurrence and of the greatest necessity at the present day. We then began to arrange them in the form of a Code, divided into Books and called Ahkam-iAdlieh (rules of justice). When the Introduction and Book 1 were finished, we sent a copy to the Sheikh-al-Islam. Copies were also sent to persons skilled and learned in Islamic jurisprudence, and modifications were incorporated therein according to their recommendations, whereupon a corrected copy was sent to the Grand Vizier. The translation of this work into Arabic was put in hand, and the other books are being composed.
Upon a perusal of the Introduction you will see that the second section thereof consists of the rules of Islamic jurisprudence collected together by Ibn Nujaim and jurists of his school. Although these rules alone are not sufficient to enable, the Sharia judges to give a judgment in the absence of any more explicit authority, they are, nevertheless, of great value in connecting together the various questions of Islamic jurisprudence; and persons who have studied these questions are able to settle them by means of proofs. In addition, other officials can refer to them in any matter whatsoever. By means of them a man can make his conduct conform to the Sharia law as far as possible. For this reason they have been included in an Introduction and not given the title of Book or Chapter. Although in treatises on Islamic jurisprudence details are mixed with principles, in this Code the terms of Islamic jurisprudence relating to each Book have been set forth in an Introduction to that Book and the details have been arranged in sequence. In order to explain the fundamental points, however, a large number of que3tions have been added by way of illustration taken from the fatwa books.
Commercial transactions at the present day are generally carried on subject to certain conditions. The most important part of the Book on Sale is the Section relating to sale subject to a condition. Owing to the Hanifite school holding that the majority of the conditions stipulated upon the conclusion of a contract of sale subject to a condition render the sale invalid, your Committee have examined the question with great care and have thought fit to set forth a summary of their discussions below.
The majority of the interpreters of Islamic law express conflicting opinions regarding sale subject to a condition. According to the Malikite School the vendor can stipulate to have some special advantage for himself in the thing sold for a limited period; and according to the Hanbalite school for an unlimited period. It seems, however, that to give the vendor this option and not to give it to the purchaser is contrary to opinion and to legal analogy. The Great lmam and the two interpreters of Islamic law, Ibn Abu Leila and Ibn Shibrüna, who lived during the same period, and whose followers subsequently disappeared, are also completely opposed to one another in this respect. Thus, according to Ibn Abu Leila, in every case both sale and condition are voidable; but in the opinion of Ibn Shibrima both sale and condition are absolutely valid.
The school of Ibn Abu Leila seems to be contrary to the tradition of the Prophet which states “let the Muslims keep to their conditions”. The school of Ibn Shibrirna is in entire agreement with the doctrine of the Prophet: but should vendor or purchaser make any condition, whether legal or illegal, or whether capable of execution or not, it is a point agreed upon by all Islamic jurists that the observance of a condition shall only take place so far as that is possible.
Consequently, the question of observance of a condition is a rule which admits of limitation and exception. For this reason a middle course has been adopted in the Hanifite school and conditions have been divided into three categories: a valid condition, a voidable condition and a condition which is null and void. Thus, any condition stipulated in favor of one of the contracting parties and which is not of the very essence of the contract, or which does not serve to assure one of the essential elements thereof, is voidable and renders the sale voidable. A condition which brings no advantage to either of the parties, is regarded as. null and void, the sale being valid, since the object of buying and selling is to confer and obtain ownership, that is to say, to enable the purchaser to obtain ownership of the thing sold and the vendor to obtain ownership of the price, without any let or hindrance. But if a condition existed in favor of one of the contracting parties alone, who insisted on the execution of such condition, and the other party sought to escape there from, such conduct would give rise to disputes, and it could not be claimed in such circumstances that the sale was complete. Sale subject to a condition of this nature, however, is permissible when it is allowed by custom, because in such a case the dispute itself would be finally settled by custom.
Commercial transactions in themselves are exceptional, as has been stated above. The majority of trade guilds have decided upon a procedure which is sanctioned by custom. There is consequently no need to deal with them, subject, however, to those conditions made without reference to custom, by persons undertaking some special piece of business. These are not numerous, however, and do not justify special treatment. It has consequently not been thought right to depart from the Hanifite school in their favor and to adopt the school of Ibn Shibrima. For this reason we have contented ourselves with mentioning in Section IV of Chapter I, the conditions which do not make a sale voidable according to the Hanifite school, a procedure adopted in the other Sections. Finally, in view of the fact that the majority of the matters dealt with in this Code do not depart from the doctrines of the Hanifite school and are applied in the Fatwakhana at the present day, there is no need to discuss them here. But since the opinions of certain of the jurists of the Hanifite school who are accepted as authoritative owing to their being convenient for the people and suitable to the affairs of the moment are included, the sources of these persons and the reasons therefore are set out below.
In accordance with the terms of Articles 197 and 205 the sale of a thing not in existence is invalid. In view of the fact, however, that the produce of flowers such as roses and artichokes and of vegetables and fruits appear in succession, certain parts thereof maturing before the other parts, it has become the custom generally to sell the produce of such things which have appeared and which have yet to appear en bloc. The lmam Muhammad Ibn Hassan al Shaibani has, by applying the Islamic doctrine of equity, authorized the sale en bloc of things not yet in existence, together with the produce of things already in existence. Moreover, the Imam Fasli, al-Haiwani and Abu Bekr Ibn Fazi have issued fatwas in conformity with this opinion. Consequently, the terms of Article 207 have been drawn up in conformity with the opinion of Muhammad, which is preferred in this Code, since it is not possible to disregard customs of this nature and since it is preferable to facilitate civil transactions as far as possible rather than to hinder them.
As regards sale en bloc such as the sale of a heap of corn at so much per kilé, the Great Imam holds that the sale of one kilé only is valid. The two Imams, however, hold that the price must be paid according to the total number of kilés comprised in that heap when it has been entirely sold. The terms of Article 220 have been drawn up in accordance with this opinion with a view to facilitating the transaction of civil business, more particularly since this view is shared by a large number of Muslim jurists such as the author of the Hedaya.
According to the Great Imam, the period of an option conferred by contract may not exceed three days. According to the two Imams, however, the contract is valid, according to the number of days agreed upon in the contract. In view of this fact, the opinion of the latter has been deemed to be more in accordance with the needs of the people and an unlimited period has been inserted in Article 300.
These divergences of opinion are also apparent as regards the option as to payment. The Imam Muhammad is alone in prescribing an unlimited period for the exercise of this option. Nevertheless, since this option is deemed to be most suitable to the needs of the people, the period was left to the contracting parties when drafting the terms of Article
According to the Great Imam, when a contract for manufacture and sale is concluded, the contractor for manufacture can go back on the sale. According to the lmam Abu Yusif however, he may not go back on the sale if the manufactured article is up to description. In these days, however, a large number of manufactories have been established and among other things guns, rifles and steamships are built to contract to such an extent that the contract for manufacture and sale has now become of very great importance. Consequently, if the contractor for sale had an option to denounce the contract for manufacture and sale, a large number of important interests would be ruined. Moreover, the contract for manufacture and sale, which is based upon the custom of the people, has a close resemblance to sale by immediate payment against future delivery, which is sanctioned by Islamic equity, although the latter is contrary to legal analogy. Therefore, in view of the needs of the time, it has been deemed essential to prefer the view of the Imam Abu Yusif and the terms of Article 392 have been drafted accordingly.
In questions which have been the subject of legal interpretation it has been found necessary to act in accordance with whatever order has been issued by the Sultan. If you approve, we request you to obtain Imperial sanction for this Code.
