Explanation of Article 1

Explanation of Article 1

The first paragraph of the article stipulates that the provisions of the system apply to all matters it addresses, which are originally civil transactions in their narrow sense. However, they generally include, as previously mentioned in the introduction to the explanation, all commercial, personal status, labor issues, evidence matters, and others where there is no specific provision in the special systems, provided that it does not conflict with their nature.

Whether the texts' treatment of the issues is clear from the wording of the article or its context, all are considered in indicating the derived ruling, using the rules of language, logic, principles of jurisprudence, and rules of interpreting system texts.

Based on that, deriving meaning from the texts is done through its wording and expressions, or through indication, or through implication, to reach the legislator's intent. Deriving meaning through wording refers to what is understood from the text's expression, which is immediately understood from its formulation and is intended from its context. It is noted that if some of the text's words have both a linguistic and a technical meaning, the default is to carry it on its technical meaning. Deriving meaning through indication refers to what is understood from the text's indication, which may not be understood from its words but is necessary for a meaning immediately understood from its words. It is noted that if the meaning derived from the indication of one text conflicts with a meaning derived from the wording of another text, the meaning of the wording must be given precedence over the meaning of the indication. Deriving meaning through implication refers to what is understood through the concept of agreement or the concept of disagreement. The first assumes the existence of a text whose expression indicates a ruling in an incident due to a reason that necessitated this ruling, and the existence of another incident equal to this incident in the reason for the ruling or more deserving of it, so the ruling of the text is established for the other incident through the concept of agreement. The second, which is the concept of disagreement, assumes the existence of a text on a ruling restricted by a condition or subject to a condition, so the text's wording and ruling are what the condition or restriction applies to, and the opposite ruling applies to what the condition or restriction does not apply to, which is the concept of disagreement.

It is noted that deriving meaning through wording or indication takes precedence over deriving it through implication, as stated by the general rule in the final provisions of this system, which is: there is no consideration for implication in the face of explicitness.

Among the important issues in the indications of texts on meanings is what relates to the concept of mandatory rules and supplementary rules in system texts, and their connection to the concept of public order. Mandatory rules are those that individuals are not allowed to violate because they are established to preserve public order. In contrast, supplementary or interpretative rules complement and interpret the will of the contracting parties in case of ambiguity. Both types of rules are binding, but they differ in the degree of obligation. Mandatory rules cannot be violated, while supplementary rules can be violated or amended by the parties involved. If they follow them and do not violate them, they are binding on them. What distinguishes between the two types is their connection or lack thereof to public order.

Public order is a concept that has been the subject of extensive research and discussion. One of its definitions is that it is everything related to a public interest that affects the higher order of society, whether this interest is political, social, economic, or moral. It is difficult to enumerate the forms of these elements, including many personal status issues, which are outlined in their system, as well as the rules of the subject in financial transactions in general, the prohibition of agreeing to commit a crime against another person for a sum of money, specific jurisdictions in courts, cases preventing a judge from hearing certain lawsuits, and the idea of public order being relative, varying with different countries and times, which makes leaving its assessment to the judiciary in matters not explicitly stated the most appropriate and closest to achieving individuals' interests.

As for civil financial matters, including the subject of this system, the default in its provisions is that they are supplementary interpretative rules that the parties can agree to violate, as the issuance of the system originally came as an expression of the collective will of the parties involved. When contracting, individuals usually mention the essential issues in their contracts, such as the sale and the price, leaving the details of the contract regarding the place of fulfillment and its execution rules to the system.

Based on that, the articles in this system and the provisions and rules they contain are considered, in principle, supplementary rules that the parties can agree to deviate from, except for two types of rules that are of public order. The first type is those explicitly stated in the system as such, with a declaration that it is not permissible to agree to violate them or that the act, condition, or transaction is void. The second type is when the article's ruling is included in the concept of public order previously mentioned, such as rules related to the subject of obligation, rules on waiving capacity, or issues related to the acts of those lacking capacity, and the like.

It is noteworthy that the legislator did not commit to stating the mandatory or supplementary rules in its texts, but in some places, it explicitly stated that the ruling could be violated, and in others that it could not be violated, in matters it wanted to emphasize either due to their importance or to remove ambiguity. The ruling of this paragraph establishes an important principle, which is that it is not permissible to exercise discretion in the presence of a text; judges, let alone others, are not allowed to violate the text's indication and deviate from it in pursuit of understanding the wisdom and reasons behind the legislation. This has been explicitly stated in the general rule in the final provisions: there is no room for discretion in the presence of a text.

The paragraph stipulates that if there is no text according to the above, the general rules in the final provisions of this system apply, as they are part of the system's texts, but they come after the preceding texts in the system because the latter are specific texts in their chapter, and the general rules take precedence over the overall provisions derived from Islamic Shariah; this is because they are general rules and fundamental principles agreed upon by jurists in general.

The last paragraph states that if there is no system text applicable to the issue, nor a general rule applicable, the provisions derived from Islamic Shariah are applied, with a broad understanding to include its objectives, rules, and principles. The system chose the expression "provisions of Islamic Shariah" instead of "provisions of Islamic jurisprudence" because the first term is broader in indicating the intended meaning, and it is the more common expression in the Kingdom's systems, as in Article 48 of the Basic Law of Governance, Article 1 of the Judiciary Law, and Article 1 of the Law of Shariah Procedures.

It is established that this includes all its provisions from any of the recognized jurisprudential schools, without commitment to a specific school as long as the choice aligns with what the article has established, which is to be the most suitable for this system.

Because one of the system's goals and purposes is to unify judicial discretion and prevent conflict and contradiction in rulings, the paragraph has established a condition when deriving from the provisions of Islamic Shariah in silent matters, which is being the most suitable for this system. It means that the ruling chosen from among the jurisprudential discretion derived from Shariah provisions should be the most suitable with what the legislator has chosen in this system's provisions, as both - the stipulated ruling and the silent ruling - are derived from Shariah; thus, what is chosen from what is silent should be suitable for what is stipulated to avoid conflict in rulings. This suitability is not limited to what the system has chosen in specific matters; it also includes general theories and rules, such as contract descriptions, their pillars, defects of consent, rules of annulment, the pillars of a harmful act, and the like.

It goes without saying that the court's discretion in deriving the Shariah ruling in the issues it considers according to this paragraph is subject to the Supreme Court's oversight, based on its jurisdiction to oversee the proper application of systems by the courts.

The reference to the provisions of Islamic Shariah in this article emphasizes that the system's texts are derived from it, so where there is no text in the system, it refers back to it as it is the source from which the system's provisions are derived.

In summary, according to what the paragraph has established, the order of applying texts to incidents is as follows:

1. The texts of this system with all its provisions, whether these provisions are known from the text's wording or its context.

2. If there is no ruling according to paragraph (First), the general rules in the final provisions of this system apply.

3. If there is no ruling according to paragraphs (First) and (Second), the provisions derived from Islamic Shariah that are most suitable for this system apply, according to what has been previously established in the concept of suitability.

It is important to note that the need to apply paragraphs (Second) and (Third) requires verifying the absence of a text for the issue in this system, whether in the general theory of obligations or in its specific chapter, as well as in other systems.

Regarding the application of the general rules in the final provisions, it is restricted by what Article (720) has established, which is to apply them to the extent that they do not conflict with the system texts, considering their nature and the specific conditions and exceptions for each.

The legislator chose to state these rules because they are general texts that encompass the general principles and basic rules in Islamic Shariah, and on the other hand, their provisions are generally agreed upon by jurists.

Related to the article at hand from those rules is the rule "custom is authoritative," and custom in that rule is the norm. Since it is a rule stated in the system, it is a source of obligations in the absence of a system text on the incident; thus, the legislator did not find the need to state the norm to derive the ruling of the issue in the absence of a system text - as is the case in many similar laws - sufficing with that rule.

Custom and norm are generally synonymous, but the system differentiates between them; it refers to custom when indicating the source, except for what relates to the general rule "custom is authoritative," as it adhered to the more common formulations of the rules, and refers to norm when it means the prevailing practice between the parties involved, also known as "contractual norm," and the system combined these two terms with the concept mentioned in the second paragraph of Article (104), which states: "If there is a place for interpreting the contract, the common will of the contracting parties must be sought without merely relying on the literal meaning of the words, guided by the custom, the circumstances of the contract, the nature of the transaction, the prevailing practice in dealings between the contracting parties, their situation, and what should prevail in terms of honesty and trust between them."

The following results arise from this differentiation between custom and the prevailing practice between two parties:

1. The court can apply custom on its own initiative, even if neither party invokes it, whereas the prevailing practice between two parties is not applied by the court unless one of the parties invokes it.
2. The court must investigate the custom as it investigates the applicable texts, whereas the prevailing practice between two parties places the burden of proof on the claimant.
3. Custom binds both parties even if they are unaware of it, whereas the prevailing practice between two parties does not bind them unless they are aware of it and intend to refer to it.

The second paragraph of the article clarifies that applying the texts of this system does not preclude the application of specific system texts on the issue, as the specific system text takes precedence over the general text, whether it was issued before or after it. For example, if a system text in a specific contract stipulates that it is only valid in a certain form, it is not permissible to argue that this system's provision that contracts are generally consensual validates the contract if that form is not met.

Related To

Article 1

1. The provisions of this Law shall apply to all matters addressed thereby in letter and spirit. In cases where none of the provisions of this Law can be applied, the General Rules provided for in the Concluding Provisions shall apply, and in the absence of a relevant general rule, the provisions derived from Sharia that are most consistent with this Law shall apply.

2. The application of the provisions of this Law shall not prejudice any specific legal provision.