THE ESSENCE OF THE CONTRACT IN JURISPRUDENTIAL AND LEGAL PERSPECTIVE A STUDY IN LIGHT OF ISLAMIC JURISPRUDENCE, EGYPTIAN CIVIL LAW, AND THE SAUDI CIVIL TRANSACTIONS LAW

Abstract

This research addresses a topic of utmost importance: "The Essence of the Contract in Jurisprudential and Legal Perspectives." The importance of defining this essence arises from the significant role that contracts play in practical life, as they are the primary voluntary source of obligations. This has led to extensive attention from Islamic jurists in defining it, resulting in wide-ranging disagreements. Similarly, jurists and commentators of Egyptian civil law and Saudi civil transactions Law have engaged in this discussion, as both legal Laws explicitly define the essence of the contract, focusing instead on its provisions. In response to this approach, jurists and commentators have taken on the task of defining this essence.

The research concludes with several findings, including:

In the terminology of jurists, the contract has two meanings: a general meaning, which refers to any action that results in a legal ruling, whether it is issued by one party or multiple parties; and a specific meaning, which refers to the connection between an offer issued by one party and the acceptance of the other, in a manner that establishes its effect on the subject matter (i.e., the object of the contract). In other words, it is the mutual connection between the offer and acceptance in a lawful manner that manifests its effect on the subject.

The specific meaning of the contract is the most commonly used among jurists, and it is the one preferred by most contemporary jurists. This is because it is more precise than the general definition, which makes the action broader than the contract. The specific definition of the contract includes precise criteria and standards that provide the correct legal characterization for every action without ambiguity. This specific definition is the prevalent and well-known usage among jurists, to the extent that it almost exclusively represents the term. It is the meaning that comes to mind when the term "contract" is mentioned, and it does not refer to the general meaning unless indicated by context. This is evident in the works of jurists when discussing contracts.

In Egyptian civil law and Saudi civil transactions Law, jurists and commentators have defined the contract as: "The agreement of two or more wills to create a legal effect, whether this effect is the creation, transfer, modification, or termination of an obligation."

This is the prevailing definition in Egyptian and Saudi legal jurisprudence, although the wording or phrasing may differ from one jurist to another.

The definition of the contract in Islamic jurisprudence, Egyptian civil law, and Saudi civil transactions Law is almost identical or consistent, particularly with regard to the specific meaning in Islamic jurisprudence. This is because this meaning does not consider actions performed by a single will as a contract, which is also the position taken by Egyptian civil law and Saudi civil transactions Law. Both Laws consider unilateral will as a source of obligation, not a contract, due to the differences in their characteristics, essence, and rulings compared to those of a contract. Therefore, all three—Islamic jurisprudence, Egyptian civil law, and Saudi civil transactions Law—restrict the concept of a contract to actions performed by two wills, while actions performed by a single will are not considered contracts but rather unilateral actions that result in a one-sided obligation.

Despite this agreement, the definition in Islamic jurisprudence is more logically sound and precise than that in Egyptian civil law and Saudi civil transactions Law.