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Compatibility of Laws Governing Contracts of Sale in Pakistan: An Analytical Study in the Light of Shari’Ah and Law
This paper attempts to analyze the Shari’Ah compatibility of laws governing the ‘contracts of sale’ in Pakistan. The Transfer of Property Act, 1882 deals with the contracts of sale for immoveable property while the Sale of Goods Act, 1930 regulates the sale transactions involving goods or moveable property. This paper investigates the Shari’Ah compatibility of the provisions of two statutes. Three core transactions under the above mentioned legal regime have been identified to be incompatible with the Shari’Ah rules. The study finds that (i) sections 54 and 56 of Transfer of Property , 1882; and (ii) sections 5 and 6(2) of the Sale of Goods Act, 1930 to be incompatible with Shari’Ah rules and need to be amended accordingly to bring the ‘sale contract’ in conformity with Shari’Ah principles. This study further finds the Marshalling of mortgaged property to be inconsonant with Shari’ah principles as it does not require the consent of mortgager to sell the mortgaged property and needs to be brought in conformity with Shari’Ah principles.
Dr. Naureen Akhtar
Assistant Professor, University Gillani Law College, Bahauddin Zakariya University, Multan, Pakistan
Prof. Dr. Muhammad Tahir Mansoori
Ex-Dean, Faculty of Shariah & Law, International Islamic University, Islamabad, Pakistan
Analytical Study, Shari’Ah And Law, Shari’Ah Issues, Statutory Law and Contract of Sale