Contract drafting
The term “contract” (ʿaqd) in language refers to joining the ends of something and binding them together, and its opposite is dissolution (untying). It is also used to mean strengthening and tightening something. From the physical meaning of tying the two ends of a rope, the word was transferred to the metaphorical meaning of linking speech or connecting two statements. From the meaning of strengthening and tightening something physically, the term was adopted to mean a covenant. Thus, a contract came to mean a binding covenant, a guarantee, and everything that creates an obligation.
Accordingly, in linguistic usage, a contract is anything that implies commitment to something—whether an act or omission—by one party or two parties, due to the meaning of binding and documentation it contains.
Elements (Pillars) of a Contract
The “pillars” (arkān) is the plural of “pillar” (rukn), meaning the strong side of something upon which its existence depends as part of its essence, such as the opening takbīr in prayer or the formula in a contract.
The pillar of a thing is its essential component from which it is formed and by which its existence is realized; if it is absent, the thing ceases to exist.
The pillars of a contract are: consent (mutual agreement), subject matter, and cause.
First: Consent (Mutual Agreement)
Consent means the conformity of two wills. “Will” here refers to the intention directed toward producing a specific legal effect, such as creating, transferring, modifying, or terminating an obligation.
Consent is therefore the agreement of two wills to produce a specific legal effect. It is the essential pillar of a contract; if it is absent, no contract is formed.
Means of expressing will:
Will is an internal matter that cannot produce legal effect unless it is expressed externally and declared by its holder.
Expression of will may be through words, writing, commonly understood gestures, or even conduct that, according to circumstances, leaves no doubt about its meaning. That is, the expression must correspond to the true intention.
Expression of will may also be implicit if the law does not require, or the parties do not agree on, explicit expression. For example, acceptance may be implied by an agent’s execution of the mandate, which indicates acceptance.
Classification of Contracts (including administrative contracts)
Contracts are divided into: civil contracts, commercial contracts, and administrative contracts.
1. Civil contracts:
The original rule is that contracts are civil, where the obligation concerns a civil act. They are formed by the agreement of two or more wills to produce a legal effect, such as sale, lease, gift, will, etc.
2. Commercial contracts:
These are contracts where the obligation concerns a commercial act, such as purchasing movable goods for resale, contracting, supply agreements, brokerage, and banking operations (see Article 2 of the Commercial Courts Law).
3. Administrative contracts:
An administrative contract is one concluded by a public legal entity for the purpose of organizing or managing a public utility, and it includes exceptional conditions not found in other types of contracts.
Types of Contracts:
- Named contracts (e.g., sale, contracting)
- Unnamed contracts (e.g., hotel room stay)
- Consensual contracts (e.g., marriage, sale)
- Formal contracts (e.g., maritime and air transport contracts)
- Bilateral binding contracts (e.g., sale, contracting)
- Unilateral binding contracts (e.g., gift, will)
- Exchange contracts (e.g., sale, contracting)
- Gratuitous contracts (e.g., will, loan for use)
- Definite contracts (e.g., sale, lease)
- Aleatory (risk-based) contracts (e.g., insurance, pledge/mortgage)