Author: Mahmoud Fayyad

Abstract

Comparative legal systems differ in the organization of the manifestation of parties’ expressions when making legal transactions where an external action does not reflect the real intention of this party. Most jurisdictions, including Islamic law, follow the objective theory of agreements while the Conterminal legal system adopts the subjective approach. Despite the fact that many scholars spent much efforts to clarify this classification, the importance of this classification may be modest; these legal systems organize some basic doctrines, with regard to the formation of a contract (namely: the revocability of offer, the need for communication of acceptance and the rules of interoperation), in a manner that may contradict with its general theory of making agreement. In other words, the organization of these doctrines has very little significant differences in result between these legal systems. Islamic law has the same result as well. This article aims at explaining these doctrines and differences.

In: Arab Law Quarterly
Author: Mahmoud Fayyad

Evaluation of the success of consumer protection regulations in many Islamic states reflects defeated outcomes with regard to the application of many declared rights and objectives; it requires the fair implementation of the principle of good faith where clear and specific measures are required. It would be better for Muslim lawmakers to benefit from the European practice and Islamic guidelines; those criteria and measures are provided in the European Proposal of Consumer Rights (the Proposal). The Proposal provides that “A term is off in conjunction with this principle since it creates a significant imbalance of rights and obligations between the contracting parties”. Clear common used terms are provided in the lists of the Proposal. This voice is also well known in Islamic law; contracts of honesty (amāna) and rules of disproportion between the contradictable interests indicate this implementation.

In: Arab Law Quarterly
Author: Mahmoud Fayyad

The aim of this paper is to recommend the transposition of the European Directive 1985/374/EEC on product liability into the Palestinian and Jordanian legal systems. The application of this Directive concurs with many general objectives and consumer rights declared in both of the latter regimes; neither of these two legal systems provide for how those objectives and rights would be accomplished, so there are executive tools putting into practice the declared objectives. This is to say that neither jurisdiction makes any sense with regard to the subject of product liability. The transposition of the European measures into both regimes must take into consideration the general principles of civil law applicable in local legal systems in order to avoid legislative disharmony between imported and local rules. Islamic law represents the basis of civil codes applicable in both regimes; the Othman Justice Rules Record (El-Majalla), which dates back to 1876 and was the first attempt to codify Islamic rules of treatment is still applicable. To recommend the implementation of the European measures in the Palestinian and Jordanian legal systems, it is important to identify the supporting and contradicting points in Islamic jurisprudence. The main question of this paper is, how and to what extent is European Directive 1958/374/EEC applicable in Palestine and Jordan.

In: Global Journal of Comparative Law
Author: Mahmoud Fayyad

Abstract

Only a few years after their enactment in several Arab states, consumer protection regulations were already demonstrating their inability to attain their objectives, with regard to the use of misleading commercial advertising in market transactions. Because the regulations are not equivalent to specific rules and prohibitions to address the use of misleading advertisements, many local parties have demanded that the regulations be amended. Although Islamic law also prohibits the use of misleading advertising, its guidelines do not provide specific prohibitions with which to control deceptive practices. In 2005, European legislators regulated Directive 2005/29/EC in an attempt to combat the use of unfair commercial practices, including the use of misleading advertising in market transactions. This Directive provides clear and specific measures enabling control to be carried out. This article will address how Arab lawmakers can benefit from this European experience.

In: Arab Law Quarterly
Author: Mahmoud Fayyad

Abstract

The UAE launched its National Vision 2021 in 2010, which ‘sets the key themes for the socio-economic development of the UAE’ and calls for ‘a shift to a diversified and knowledge-based economy’. It focuses on the UAE becoming the economic and commercial capital for more than two billion people by transitioning to a knowledge-based economy. The success of the vision requires the State to join the United National Convention of Trade in Goods, which is the most important convention in this field. Until now, the national lawmaker has refrained from joining the Convention, believing that the Convention prevails to the interests of the seller party. As fundamental breach is a momentous concept of the terms of the Convention, this article will attempt to draw similarities and distinctions between national law and the United Nations Convention for the International Sales of Goods (CISG) in terms of the principle of fundamental breach.

In: Arab Law Quarterly