العرف التجاري و إشكالية تطبيقه و فقأ للنظام السعودي

الملخص EN

Commercial custom and the problematic of its application according to the Saudi system
Randa Mustafa Hassan Suliman
Regulations Department, College of Sharia and Regulations, Tabuk University.

E-mail: rsliman@ut.

edu.

sa
:
The study dealt with the pillars of custom, which centered on the meeting of the material and moral pillars, it touched on the advantages and advantages of custom and did not overlook the flaws and disadvantages, and also its stood on the differences between custom and habit in terms of the lack of the moral pillar of the habit, It showed the difference between them in practice, whether in terms of evidence, application to the parties, or the oversight of the Supreme Court.

The study reviewed some of the statutory texts in which the regulator directed the judge to use custom in various commercial matters, It also clarified the position of the Saudi regime regarding proof by commercial custom, the party on whom the burden of proof falls, and the issue of custom being subject to the oversight of the Supreme Court.

In order to reach scientific results that contribute to the enrichment of legal thought and to draw attention to some organizational shortcomings with regard to the subject, the study relied on collecting and extracting information from its main sources.

Such as references, main books, scientific papers, articles and national legislation.

The study followed the descriptive analytical approach in dealing with topics and extrapolating the various legal texts in the Saudi system.

The study reached several results, including that the issue of attributing the proof of custom to the party claiming it may lead to conflicting judicial rulings that are based on the same customary rule.

This is if the litigant succeeded in proving a customary rule in a particular lawsuit, while another in a similar lawsuit failed to prove the same rule, which contradicts the generality and ion of the legal rule.

The main recommendations of the study are to work on appointing judges from the same region “as much as possible” so that they have familiarity with the prevailing local customs, while working on rehabilitating them, The codification of general commercial norms and the assignment of chambers of commerce and industry to codify local norms within the scope of their geographical jurisdiction.