THE INFLUENCE OF MALIKI JURISPRUDENCE ON THE FRENCH CIVIL LAW IN TERMS OF THE OPPOSABILITY OF THE RELATIVE EFFECT OF CONTRACT TO THIRD PARTIES: A COMPARATIVE STUDY

Abstract

This paper presents a comparative study of the stances of Maliki jurisprudence and French civil law regarding the opposability of the effects of contracts on non-contracting parties. The study focuses on three central claims that serve as exceptions to the principle of the relativity of contract effects: the indirect action, the Paulian action, and the action for declaration of simulation. This paper employs a qualitative methodology that combines analytical and inductive approaches. It draws on primary sources of Maliki jurisprudence, French legal codes, and contemporary legal studies to examine the historical trends and practical applications of these mechanisms in law. The paper demonstrates how Maliki jurisprudence, despite its origins in a distinct historical context, has offered a sophisticated approach to these issues through the application of flexible and comprehensive rules that fundamentally comply with the established tenets of modern French civil law, particularly in protecting creditors’ rights and regulating the effects of contracts on third parties. The study highlights a significant convergence between Maliki jurisprudence and French civil law regarding sources, foundational principles, and legal structures. While Maliki jurisprudence relies on general and flexible principles, French civil law establishes more precise and codified rules. Despite these differences, their substantial overlap offers a valuable opportunity to integrate elements of Maliki jurisprudence into French civil laws. Such an integration could enhance transactional fairness and strengthen the protection of contracting parties' interests.

Keywords: contracts, indirect action, Islamic Shariah, Maliki school; Paul’s case