Contract Stipulations (Shurūṭ) in Islamic Law: The Ottoman Majalla and Ibn Taymiyya

Abstract

With the generalization of production for exchange in modern times and the corresponding expansion of monetary and commercial transactions, the issue of contractual freedom has become a major concern for Muslim jurists and legislators, instigating a reconsideration of the classical doctrines of Islamic law on the subject. Due partly to its religious character and partly to the historical circumstances presiding over its formation in the first three centuries of the Hijra, Islamic law does not permit freedom of contract. Broadly speaking, three kinds of considerations intervene to restrict freedom of contract in classical fiqh: (a) those arising from the prohibition of usury (ribā); (b) those delimiting the licit object of legal obligation (maḥall alʿaqd); and (c) those concerning the stipulations attached to the contract (shurūṭ). In the present article, I investigate the third category of restrictions and touch on usury and the licit object of obligation insofar as the latter affect shurūṭ (sing., sharṭ), namely the conditions attached to a contract.