Options That Impair the Binding Effect of Contract and Their Role in Protecting Contractual Consent:

An Analysis of How Arab Civil Laws are Influenced by the Islamic Jurisprudence

Adnan Ibrahim Sarhan

 

Abstract: The Arab Civil Laws that are mostly influenced by Islamic jurisprudence are the Iraqi and Jordanian Civil Codes as well as the UAE and Omani Civil Transaction Laws. These laws have adopted the contract hierarchy as stipulated by Islamic jurisprudence, includes the non-binding contract according to which any of the two parties can terminate the contract unilaterally without the consent of the other party. Such a contract is deemed non-compulsory due to the options enforced on the contract. Some of these options are consensual and established with a condition stated in the contract. Others, however, are implied and legally enforced without express condition, i.e., by the force of law. Comparing the laws of selected jurisprudence and placing those laws within the purview of Islamic jurisprudence, this article argues that these options play an essential role in protecting the consent of the contracting parties as they enable the option holder to carefully investigate the terms and conditions before being permanently obligated to the contract. The article finds that the implied option is similar to that of a consumer who can quit the contract within a specific period after its formation without bearing any condition or extra expense, exactly as determined and applied by modern laws.