Syaria commercial contract principles in United Nations Conventional Contract for International Sales of Goods (CISG)

JATI, Irawan, Prof. M. Hawin, S.H., LL.M

2008 | Tesis | S2 Magister Hukum

The recent development of international trade is involving a complex system of regulations. These regulations absorbed common trade practices (customs and usages) of merchants. Their trade interaction was the interaction of different legal system; the Civil law Common law and Islamic law where each system has its own stipulation on international commercial contracts. This difference became a challenge for the traders and the lawyers when they dealt with the breach of contract dispute. Thus, there were efforts to create a unified international sales contract regulation. One of the results was the United Nations Convention on Contract for International Sales of Goods (CISG) in 1980. In its application, CISG becomes international sales of contract regulations accepted by the traders. For Moslem, there is no other alternative except to apply CISG in their sales contract with foreigners. As the intensive development of Islamic economic system (the Syari’a) which was provoked by the banking sectors, it is interesting to study Syari’a commercial contract concept, specifically its general principles in CISG. The general principles in Syari’a commercial contract include Al Hurriyah (freedom), Al Musawah (equality), Al ‘Adalah (fairness/justify), Al Ridha (voluntary consent), Ash Shidq (honesty), Al Kitabah (written). Besides those six principles, Syari’a commercial contract applies the general principle or norm (ushul fiqh) in social aspect (muammalah) which stated that “parties are free to determine the consent, unless there is a rule against the consent”. Therefore, this thesis tries to analyze the formulation of Syari’a commercial contract, the existence of rules in CISG that are in accordance with Syari’a commercial contract principles and to look for their differences and similarities. Based on the analysis some differences are on the limitation of objects in contact where CISG limits the objects as in Article 2, Syari’a prohibits to transact illegal objects, second is the application of interest, where permitted by CISG but not for Syari’a. The similarities such as the obligation of seller and buyer and the right to inspect the goods.

Kata Kunci : Kontrak,Syariah aqad,Prinsip , prinsip umum,CISG,Syari’a, aqad (contract), general principles