Roman law was the legal system of Ancient Rome, which operated in the Roman state. Islamic law is a collection of rules and regulations derived from the divine discovery that a believing Muslim must be guided for adequately fulfilling his religious duty. This paper aims to discuss the similarities and differences between Roman commercial law and Islamic commercial law.
In Roman law, the contract of sale is defined as an agreement whereby one party – the seller – undertakes to present things, goods and other valuables to the other party, and the buyer commits to pay to the seller for the sold products (Johnson, 2015). In Islamic contract law, the contract is also understood as an agreement concluded based on a proposal by one party and its adoption by another. According to the Islamic legal doctrine, the sale (bay) is defined as the exchange of one type of goods to another between two or more persons with their consent (Zahraa & Mahmor, 2001).
The Roman law defines the following conditions for the validity of the treaty: the consent of the parties and the expression of will; availability of the subject of the contract; the purpose of the contract; the ability of subjects to conclude an agreement (Johnson, 2015). Besides, the contract must be concluded, that is, the parties must make specific legally meaningful actions that attest to the conclusion of the contract (Johnson, 2015). Such actions were an offer – the announcement of the party wishing to conclude a particular contract, of its intention to another person or persons, and acceptance of the proposal to conclude a contract. In many deals, for their conclusion, certain formalities were required, for example, the transfer of a thing (Johnson, 2015).
According to the Islamic legal doctrine, there are the following requirements for the terms of the purchase and sale transaction: the expression of a mutual agreement; the age and soundness of the minds of the contracting parties; ownership of the item being sold; legitimacy of the subject of trade; exact designation of the object, quantity and quality of the goods; accurate price determination; transfer of the sold goods to the buyer; receipt at-were from sale; determination of the term in the event that the money for the products will be paid later or if the terms of the transaction provide the delivery of goods not immediately, but after a particular time (Zahraa & Mahmor, 2001). One of the main rules of sale is the exact designation of the subject of sale. The quantity must be calculated, measured or weighed, and the quality is defined and indicated in detail (Najeeb, 2014). Therefore, an agreement on the sale of a whole grain barn or hay cart is invalid, unless the exact weight of the product has been established.
However, the sharia establishes certain restrictions in trade. Therefore, the subject of the transaction cannot be substances and objects banned for Muslims (Najeeb, 2014). For instance, pork, alcohol, and other haram items such as dogs, items of other religions, etc. Also, a ban on transactions with a high percentage of risk is set, so-called gharar (Zahraa & Mahmor, 2001). These include the prohibition on the sale of goods, which the seller does not own at the time of the transaction, the ban on the sale of goods without specifying a fixed price, the sale of goods without its detailed description. Purchases will also not be deemed valid if, at the conclusion of an agreement, there was pressure, fraud, deliberate deception of one of the parties (Najeeb, 2014).
Summarizing, there are some similarities and differences between the commercial law in Roman and Islamic law doctrines. The similarity in the structure of Roman and Islamic law is most vividly expressed in such an institution of commercial law as an institution of the treaty. Distinctions in the institution of a treaty in Roman and Islamic law are expressed primarily in the requirements for sales contracts.
- Johnston, D. (2015). The Cambridge companion to Roman law. Cambridge: Cambridge University Press
- Najeeb, S. F. (2014). Trading in Islam: Shari’ah rules and contemporary applications in Islamic financial transactions. Journal of Emerging Economies and Islamic Research 2014, 2(2).
- Zahraa, M., & Mahmor, S. M. (2001). Definition and Scope of the Islamic Concept of sale of goods. Arab LQ, 16, 215.