Islamic Contract Law – Sanctity of Contract (ʿUqūd) in Islam 


1. Qurʾānic Foundation

• Principle based on the verse:
  • “O you who have believed! Fulfil your undertakings”
• The term used:
  • ʿUqūd (plural of ʿaqd = contracts/commitments)

👉 Meaning:

• All binding commitments must be honoured

2. Meaning of Sanctity of Contract

• Contracts are:
  • Sacred and binding
• Parties must:
  • Fulfil obligations faithfully
• Not just legal duty, but also:
  • Moral and religious duty

3. Scope of the Principle (Very Important)

• Applies broadly to:
  • Commercial contracts
  • Personal promises
  • Social obligations
  • Religious commitments

👉 Not limited to business transactions


4. Application in Different Contexts (with Examples)
a. Commercial Contracts

• Example:
  • Sale agreement → must deliver goods and pay price
• Obligation:
  • Both parties must honour the terms

b. Personal Agreements

• Example:
  • “I promise to repay you next week”
• Obligation:
  • Must fulfil the promise

c. Social Commitments

• Example:
  • Agreement to sponsor a student
• Obligation:
  • Expected to honour the commitment

d. Religious Covenant (ʿAhd with God)

• Example:
  • Performing prayers, fasting
• Seen as:
  • A covenant between الإنسان and God

👉 This is not a commercial contract but still falls under ʿuqūd


5. Link to ʿAqd al-ʿAhd

• The concept of ʿahd (covenant):
  • Extends the idea of contract to:
    • Spiritual and moral obligations
• Example:
  • Commitment to obey God
  • Fulfilling religious duties

6. Key Principle

• In Islamic law:
  • Breaking a contract = breach of legal + moral duty
• Emphasis on:
  • Honesty
  • Trustworthiness
  • Accountability

Final Summary

• ʿUqūd (contracts/commitments) must be fulfilled
• The sanctity of contract:
  • Applies to all types of obligations
  • Not limited to commercial dealings

👉 Includes:

• Legal contracts
• Promises
• Covenants with God

One-Line Understanding

• In Islam:
  “Every valid commitment—legal, social, or spiritual—must be honoured.”​

Islamic Contract Law – Sanctity of Contract (ʿUqūd) in Islam 

1. Qurʾānic Foundation

• Principle based on the verse:
  • “O you who have believed! Fulfil your undertakings”
• The term used:
  • ʿUqūd (plural of ʿaqd = contracts/commitments)

👉 Meaning:

• All binding commitments must be honoured

2. Meaning of Sanctity of Contract

• Contracts are:
  • Sacred and binding
• Parties must:
  • Fulfil obligations faithfully
• Not just legal duty, but also:
  • Moral and religious duty

3. Scope of the Principle (Very Important)

• Applies broadly to:
  • Commercial contracts
  • Personal promises
  • Social obligations
  • Religious commitments

👉 Not limited to business transactions


4. Application in Different Contexts (with Examples)
a. Commercial Contracts

• Example:
  • Sale agreement → must deliver goods and pay price
• Obligation:
  • Both parties must honour the terms

b. Personal Agreements

• Example:
  • “I promise to repay you next week”
• Obligation:
  • Must fulfil the promise

c. Social Commitments

• Example:
  • Agreement to sponsor a student
• Obligation:
  • Expected to honour the commitment

d. Religious Covenant (ʿAhd with God)

• Example:
  • Performing prayers, fasting
• Seen as:
  • A covenant between الإنسان and God

👉 This is not a commercial contract but still falls under ʿuqūd


5. Link to ʿAqd al-ʿAhd

• The concept of ʿahd (covenant):
  • Extends the idea of contract to:
    • Spiritual and moral obligations
• Example:
  • Commitment to obey God
  • Fulfilling religious duties

6. Key Principle

• In Islamic law:
  • Breaking a contract = breach of legal + moral duty
• Emphasis on:
  • Honesty
  • Trustworthiness
  • Accountability

Final Summary

• ʿUqūd (contracts/commitments) must be fulfilled
• The sanctity of contract:
  • Applies to all types of obligations
  • Not limited to commercial dealings

👉 Includes:

• Legal contracts
• Promises
• Covenants with God

One-Line Understanding

• In Islam:
  “Every valid commitment—legal, social, or spiritual—must be honoured 

Islamic Contract Law – Development of Contract Theory (Notes)


1. Nature of Early Islamic Jurisprudence

• Early Muslim jurists focused on:
  • Practical interpretation of law
  • Not abstract theorising
• Legal principles were developed through:
  • Interpretation of sources (Qurʾān, Sunnah)
  • Real-life cases

👉 Result:

• Law evolved as a practical system, not a theoretical model

2. Absence of a Formal Contract Theory

• Early jurists:
  • Did not formally define “contract” (ʿaqd)
  • Did not develop a systematic theory of contract law
• Instead:
  • Focused on:
    • Rules of specific transactions (sale, lease, etc.)

3. Underlying Principle (Core Idea)

• The foundation of Islamic contract law is:
  • Fulfilment of obligations

👉 Key idea:

• Once a commitment is made → it must be honoured

4. Moral Basis of the Theory

• Initially based on:
  • Moral and ethical persuasion
• Emphasis on:
  • Honesty
  • Trust
  • Accountability
• Example:
  • A promise to repay a debt is binding because:
    • It is morally wrong to break it

5. Later Development (Textual Support)

• Muslim jurists later reinforced this principle using:
  • Qurʾānic evidence (e.g., fulfil your contracts)
  • Prophetic teachings

👉 This gave:

• Legal authority to what began as moral principles

6. Key Features of Islamic Contract Theory

• Not abstract or theoretical in origin
• Built on:
  • Practical rulings + moral values
• Focus on:
  • Obligation and fulfilment, not just formation

Final Summary

• Islamic contract law did not start as a formal theory
• It developed from:
  • Practical legal interpretation
  • Strong moral emphasis on fulfilling obligations
• Later:
  • Supported by textual evidence, making it legally binding

One-Line Understanding

• Islamic contract law =
  “A practical system built on the moral and legal duty to fulfil obligations.”​

​KembaraXtra- Case Law-Wan and Chan (1994) - Procurement and Scope of Authority
Case Name: Wan and Chan (1994)
Key Legal Issue: Procurement of grievous bodily harm (GBH) and the scope of authority of those carrying out the act.
Facts of the Case:

• Wan (W) and Chan (C) suspected V of stealing C's valuable watch.
• W and C allegedly arranged for V to be assaulted.
• V was severely beaten, sustaining grievous bodily harm.

Court Decision (Held):

• W and C were found not guilty of procuring the infliction of grievous bodily harm.

Reasoning for the Decision:

1. Exceeding Scope of Instructions: The attackers went beyond the scope of what W and C had asked them to do. This implies that W and C's instructions likely involved a lesser degree of harm, not GBH.
2. Lack of Consideration for Foreseeability: The jury never considered whether W and C had foreseen that the infliction of grievous bodily harm by the attackers was a substantial risk.

Key Legal Principle Illustrated (Referencing Chan Wing-Siu):
This case highlights the importance of the principle from Chan Wing-Siu regarding foreseeability in cases of procurement. For an individual to be guilty of procuring a more serious offense (like GBH) when they only intended a lesser offense, it must be established that:

• They foresaw the more serious offense (GBH) as a substantial risk of the actions they procured.

Study Questions/Points to Consider:

1. What is the legal definition of "procurement" in the context of criminal law?
2. How does the "scope of authority" or "exceeding instructions" play a role in determining liability for procured acts?
3. Why is "foreseeability of substantial risk" a crucial element when assessing liability for a more serious crime than originally intended by the procurer?
4. If W and C had explicitly instructed the attackers to inflict GBH, would the outcome of this case likely have been different? Explain your reasoning.
5. What lesson does Wan and Chan (1994) teach us about the responsibility of those who arrange for others to commit unlawful acts?

​KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Difference Between Section 26(b) and Section 28
1. Core Distinction👉 The key difference lies in:

• Availability of the maker of the entry, and
• Evidentiary value of the entry

2. Section 26(b) – Statements of Persons Who Cannot Be Called as Witnesses

• Applies when:
  • The person who made the entry is:
    • Dead, or
    • Cannot be found, or
    • Incapable of giving evidence

Evidentiary Value

• ✔ Entries are:
  • Substantive evidence
• ✔ Can be:
  • Sufficient by themselves
  • No strict need for corroboration

👉 Reason:

• Maker is not available for examination

3. Section 28 – Entries in Books of Account

• Applies when:
  • Entries are made in books of account regularly kept in business

Evidentiary Value

• ✔ Entries are:
  • Relevant evidence
• ❌ Not sufficient alone:
  • Require corroboration

👉 Cannot by themselves:

• Charge a person with liability

4. Key Differences (Note Form)(i) Availability of Maker

• Section 26(b):
  • Maker is not available
• Section 28:
  • Maker may be available as witness

(ii) Nature of Evidence

• Section 26(b):
  • Substantive evidence
• Section 28:
  • Corroborative evidence only

(iii) Sufficiency

• Section 26(b):
  • ✔ Can be sufficient on its own
• Section 28:
  • ❌ Not sufficient alone

(iv) Requirement of Corroboration

• Section 26(b):
  • ❌ Not mandatory
• Section 28:
  • ✔ Mandatory

5. Reason for the Difference

• Under Section 26(b):
  • Law relaxes rules because:
    • Witness is unavailable
• Under Section 28:
  • Law is stricter because:
    • Entries may be:
      • Self-serving
      • Made by interested party

6. Key Principle👉 Entries made by unavailable persons (Section 26(b)) may be relied upon independently, whereas business account entries (Section 28) require corroboration due to possibility of self-interest.

One-Line Summary👉 Entries under Section 26(b) can be sufficient evidence due to unavailability of the maker, while entries under Section 28 are only corroborative and cannot alone establish liability.

​KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Relevancy of Certain Evidence for Proving, in a Subsequent Proceeding, the Truth of Facts Therein Stated (Section 27)
1. Basic Principle of Section 27
Under Section 27 of the Bharatiya Sakshya Adhiniyam, the law provides that:
Evidence given by a witness in a previous judicial proceeding is relevant in a subsequent proceeding (or later stage of the same proceeding) to prove the truth of the facts stated, if the witness is unavailable.

2. When Such Evidence Becomes Relevant
Previous testimony can be used when the witness:

• Is dead
• Cannot be found
• Is incapable of giving evidence
• Is kept out of the way by the adverse party
• Cannot be produced without unreasonable delay or expense

3. Conditions for Admissibility
All the following must be satisfied:

• ✔ Same Parties
  • Proceedings must be between:
    • Same parties, or
    • Their representatives
• ✔ Right to Cross-Examine
  • Adverse party must have had:
    • Right and opportunity to cross-examine
• ✔ Same Issues
  • Questions in issue must be:
    • Substantially the same

4. Explanation (Important Point)

• A criminal proceeding is deemed to be:
  • Between:
    • Prosecutor and accused

👉 This allows:

• Use of evidence from criminal case in civil proceedings
• Even if parties appear different on record

5. Scope of the Provision

• Exception to general rule:
  👉 Evidence must be direct and given in court
• Allows:
  • Use of previous deposition when witness unavailable

👉 Based on:

• Necessity and convenience

6. Evidentiary Value

• ✔ Previous deposition becomes:
  • Substantive evidence
• Can also be used:
  • As admission
  • For contradiction in later testimony

7. Illustration Explained

• Victim injured in accident
• Criminal case filed against driver
• Later victim files civil suit

👉 If witnesses from criminal case:

• Are now dead or unavailable

✔ Their earlier testimony:

• Can be used in civil case

👉 Explanation removes objection:

• That parties are different

8. Important Case Principle
​In Sukhpal Singh v NCT of Delhi:

• Witness statements recorded earlier:
  • Were admitted as substantive evidence
• When:
  • Witness could not be traced later

👉 Court held:

• Such evidence is admissible if:
  • Conditions are strictly satisfied

9. Key Legal Principle👉 Previous testimony is admissible as substantive evidence when the witness is unavailable, provided fairness is ensured through prior opportunity of cross-examination.

10. Key Takeaways

• Section 27 allows:
  • Use of previous evidence
• Conditions:
  • Witness unavailable
  • Same parties
  • Same issues
  • Right to cross-examine
• Nature:
  • ✔ Substantive evidence

One-Line Summary👉 Previous testimony of an unavailable witness is admissible as substantive evidence if the earlier proceeding involved the same parties, issues, and opportunity for cross-examination.

​KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Relevancy of Entry in the Public Record or an Electronic Record Made in the Performance of Duty (Section 29)
1. Basic Principle of Section 29Under Section 29 of the Bharatiya Sakshya Adhiniyam, the law provides that:
An entry in any public or official book, register, record, or electronic record, stating a fact in issue or relevant fact, is relevant if it is made:

• By a public servant in discharge of official duty, OR
  
• By any person legally bound to make such entry
  

2. Scope of the Provision

• Applies to:
  
  • Public registers
    
  • Official records
    
  • सरकारी documents
    
  • Electronic/digital records
    

👉 Principle:

• Entries are considered reliable because:
  
  • They are made in discharge of official or legal duty
    
  • The maker has a duty to ensure correctness
    

3. Underlying Principle👉 A person making an official entry is expected to verify its truth, as it is part of his legal duty.

• Ensures:
  
  • Authenticity
    
  • Accuracy
    

👉 Important:

• Entry need not always be made by a public servant
  
• It is sufficient if:
  
  • The person is under a legal duty to make it
    

4. Essential Conditions (Note Form)For admissibility under Section 29:

• ✔ Entry must be in:
  
  • Public or official book, register, or record
    
• ✔ It must state:
  
  • Fact in issue OR relevant fact
    
• ✔ It must be made:
  
  • By public servant in official duty, OR
    
  • By person legally required to make such entry
    

👉 If entry is made without such duty:
❌ It is not admissible

5. Important Limitation

• Only the entry itself is relevant
  
• Not:
  
  • Secondary communication
    
  • Derived information
    

👉 The court requires:

• Original record entry, not summaries or letters based on it
  

6. Illustration Explained

• A applies for death record
  
• Receives a letter from administrator stating date of death
  

👉 This letter is:
❌ Not admissible
✔ Reason:

• It is not the actual entry in the register
  
• Only information derived from it
  

👉 The correct evidence:

• The death register entry itself
  

7. Evidentiary Value

• ✔ Entries are relevant evidence
  
• ❌ Not automatically conclusive proof
  

👉 Court may:

• Accept or require further verification
  

8. Key Legal Principle👉 Only entries made in official records in the performance of legal duty are admissible, not mere statements or communications based on such entries.

9. Purpose of Section 29

• Facilitates:
  
  • Proof of facts through official records
    
• Avoids:
  
  • Calling multiple witnesses
    
• Ensures:
  
  • Reliability of documentary evidence
    

10. Key Takeaways

• Section 29 deals with:
  
  • Entries in official/public records
    
• Requirements:
  
  • Must be made in discharge of duty
    
• Only:
  
  • Original entries are admissible
    
• Not:
  
  • Derived or secondary information
    

One-Line Summary👉 Entries in public or official records made in the performance of legal duty are relevant facts, but only the original entry—not secondary information—is admissible as evidence.

​KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Entries in Books of Account When Relevant (Section 28)
1. Basic Principle of Section 28Under Section 28 of the Bharatiya Sakshya Adhiniyam, the law provides that:
Entries in books of account, including those maintained in electronic form, are relevant facts if they are regularly kept in the course of business, and relate to a matter under inquiry.
However:
👉 Such entries alone are not sufficient to charge any person with liability.

2. Scope of the Provision

• The section has two parts:
  • ✔ First part → Deals with relevancy
  • ❌ Second part → Limits evidentiary value

👉 Principle:

• Business records are generally trustworthy, but:
  • Cannot be the sole basis of liability

3. Example Explained

• A sues B for ₹1000
• Produces account books showing B owes money

👉 Result:

• ✔ Entries are relevant
• ❌ Not sufficient alone to prove debt

👉 Additional evidence is required

4. Essential Conditions (Note Form)To make entries admissible:

• ✔ Must be in:
  • A book of account
• ✔ Book must be:
  • Regularly kept
• ✔ Must be maintained:
  • In the course of business

👉 Even after this:

• ❌ Cannot alone impose liability

5. Meaning of “Book”

• A “book” means:
  • A bound collection of sheets

✔ Includes:

• Properly bound registers
• Spiral notebooks

❌ Does NOT include:

• Loose sheets
• Scraps of paper
• Extracts from accounts

👉 Reason:

• Loose papers are easily altered or manipulated

6. Regularly Kept in Course of Business

• Entries need not be:
  • Made daily or immediately

✔ Acceptable if:

• Recorded:
  • Periodically
  • In order of transactions

👉 Test:

• Whether there is:
  • Systematic and consistent practice

7. Evidentiary Value

• ✔ Entries are:
  • Relevant evidence
• ❌ But:
  • Only corroborative
  • Not independent proof of liability

👉 Must be supported by:

• Oral evidence
• Other documents

8. Key Judicial PrinciplesIn CBI v V.C. Shukla, the Court laid down:

• “Account” requires:
  • Systematic recording and balancing
• “Business” means:
  • Continuous and organized activity
• “Regularly kept” means:
  • Maintained through consistent practice

👉 Each case depends on:

• Nature of business
• Mode of record keeping

9. Key Legal Principle👉 Entries in books of account are admissible as relevant evidence, but they cannot by themselves create liability without independent corroboration.

10. Key Takeaways

• Section 28 deals with:
  • Business account entries
• Requirements:
  • Proper books
  • Regular maintenance
• Value:
  • ✔ Relevant
  • ❌ Not sufficient alone

One-Line Summary👉 Entries in books of account regularly kept in the course of business are relevant, but cannot alone be used to impose liability without supporting evidence.