The compatibility of Saudi domestic law with the Seller's Obligations under the Vienna Convention (CISG)

Abstract

This thesis seeks to determine the degree of compatibility between the United Nations Convention on the International Sale of Goods (CISG) and the relevant principles and practices in operation in Saudi Arabia which are derived from Islam's Shari'ah law. The prospects for the harmonization of international sales will be enhanced considerably if no fundamental conflicts can be shown to exist. Furthermore, given its success in gaining worldwide acceptance, compatibility of the CISG with Shari'ah law would have significant implications for individual businessmen and women, companies, banks and arbitrators in commercial disputes who desire their transactions to be governed by recognised international standards as well as Islamic rules. A comparative study is therefore undertaken of the CISG and Saudi law concerning two crucial elements of sales contracts: the seller's obligations and the buyer's remedies. The contexts and backgrounds of the two legal systems and their approaches to contractual agreements are first described, revealing strongly contrasting origins, structures and procedures but nevertheless demonstrating encouraging underlying similarities in general aims and principles. The main body of the thesis then discusses in detail questions of the delivery of goods, their conformity to the contract and the law, protection against third party rights, and remedies for failure to perform in conformity. Key issues include the nature and timing of control of the goods, the identification of defects and the passage of risk associated with them, protection against third parties, recognition of the main buyer's remedies (specific performance, avoidance and reduction in price) and the role of customary usage within particular business spheres. Widely divergent forms of expression are found to produce many of the apparent differences found in the analysis, which are rendered eminently reconcilable when the deeper guiding intentions of the two legal frameworks are taken into account. Potentially obstacles to compatibility are explained in terms of the sources of Western traditions in civil and common law whereas schools of thought in Saudi jurisprudence vary in interpretations of Islamic primary texts. Nonetheless the rights of the parties to freedom of contract, the role of custom and the encouragement of certainty surrounding their expectations are common driving principles in Saudi and Islamic law, and adoption of the prevailing international norms would, in fact, help make this more explicit in contemporary Saudi practice. In addition the impact of different interpretations of the primary texts provides certain flexibility in Saudi law to recognise and accept the provision of the CISG particularly when the CISG's rules have already been suggested by one of the representatives school of thought. A final summary of the research findings thus concludes that no substantial barriers are found with respect to the specific comparisons made. Given the many benefits that would accrue, and subject to the outcome of further work examining other aspects of the CISG including the rule of interest, it is provisionally recommended that the Saudi Arabian government should consider signing the Convention.