COMPARATIVE CONCEPT OF MEETING OF MINDS UNDER COMMON LAW AND MAJLIS UNDER ISLAMIC SHARIAH IN ECOMMERCE

Shaik Mohd Noor Alam S.M. Husain, Faculty of Economics and Management, University Putra Malaysia, Serdang, Selangor ,Malaysia Shaik@putra.upm.edu.my Siti Salwani Razali, Faculty of Economics and Management Sciences, International Islamic University, Jalan Gombak,53100,Kuala Lumpur, Malaysia Salwani@iiu.edu.my

Abstract The use of internet as a medium of communication or the trend of cyberspace contracting has widened the scope of contract formation. Many types of transactions are held online as they are claimed to be more speedy, less cost and time saving.As the world of electronic commerce expands there is an increasing demand for clarity in the rules which apply to the participants and their transactions not only in Common Law but also in Shariah Law. .Uncertainty exists on many legal issue arose out of the online contract such as when or when the offer(ijab) and acceptance (qabul) is made , when the contract is concluded whether agreements entered into electronically are enforceable

and etc. However one of the most important legal issues in how do we determine the meeting of minds of both parties in the online contract not only under common law but also under Shariah Law. In common law traditions, the usual if not the conclusive method of discovering the existence of agreement is by identifying the time and manner of the convergence of offer and acceptance The absoluteness of the acceptance brings the minds of the offeror and the offeree together in a convergence of complete agreement. This, in common law language is called consensus ad idem or meeting of the minds. The common law notion of meeting of the minds rather of the bodies emphasises the cornerstone of the common law of contract in that an agreement is a fact that can be achieved by whatever means in whatever

manner and through whatever agency. The formation of contract in Islam generally does not require fix formality. What is required ,as in any other legal system is the fundamental proof of consent by each parties. Consent is discovered by the use of offer and acceptance methodology. The offer or ijab and acceptance or qabul must meet at the same time and meeting or majlis. The existence of majlis can be easily determined if the contract is made inter presente or face to face basis whereby the parties meet physically at the same place. However the issue arose as to how do we determine the existence of majlis if the contract is made inter absente or without the physical presence of the parties for instance in the online contract. And if it is not there then does this will affect

the validity of the online contract under Islamic Law. Therefore this paper is aimed at analyzing the concept and the issue of meeting of minds under common law and Majlis Aqad under Shariah in ecommerce. FULL PAPER In common law traditions, the usual if not the conclusive method of discovering the existence of agreement is by identifying the time and manner of the convergence of offer and acceptance. The offer and acceptance tool has provided a reliable insight into the mental process of contracting parties when negotiating towards an agreement. That parties must agree on the same thing in the same sense to arrive at a consensus is underlined by the trite rule that an acceptance must be unequivocal and absolute.

The absoluteness of the acceptance brings the minds of the offeror and the offeree together in a convergence of complete agreement. This, in common law language is called consensus ad idem or meeting of the minds. The common law notion of meeting of the minds rather of the bodies emphasises the cornerstone of the common law of contract in that an agreement is a fact that can be achieved by whatever means in whatever manner and through whatever agency. The House of Lords in Gibson v Manchester City Council1 has affirmed this approach, despite the radical departure from this approach proposed by Lord Denning in the Court of Appeal. Lord Denning explicitly argued, To my mind it is a mistake to think that all contracts can be
1

[1979] 1 All ER 972

analysed into the form of offer and acceptance. I know in some of the textbooks it has been the custom to do so; but as I understand the law, there is no need to look for a strict offer and acceptance2 Lord Dennings reference to some of the textbooks is of course a matter of deference to Cheshire, et al who have clearly warned against treating it as a sort of magic talisman. The writers caution, the phrase offer and acceptance though hallowed by a century and a half of judicial usage, is not to be applied as a talisman, revealing by a specie of
2

Corbin seems to share Lord Denning concern for a dogmatic adherence to offer and acceptance methodology; Corbin, Offer and Acceptance and some of the Resulting Legal Relation , 26 Yale LJ p. 182.

esoteric art, the presence of a contract.3 The law is concerned with consensus as a matter of fact, not procedure nor means. Hence meeting of minds can take place even when bodies are physically separated both in time and space as in the case in contracts inter absente. More emphatically so discovering consensus becomes less difficult when bodies are mutually present in inter presente contracts. The means of arriving at the requisite consensus is similarly open. Consensus may even be achieved trough the agency of machine.4 Basically, the common law rules as to the determination of consensus between the contracting parties were formulated during the period
3

Cheshire, et al Law of Contract 11th ed 4 In Cooke v Oxley ( 1790) 3 TR 653, 100 ER 785, the Court appeared to insist on face to face contract.

when contracts were inter presente. The advent of new communication technology, starting which the postal services and now the electronic mail has necessitated the adaptation of the original rules to new circumstances. Be that as it may, the fundamental legal requirement of consensus has not changed: technology merely brings new methods of arriving at the consensus,without altering the fundamental rule which requires it.Islamic contractual jurisprudence demostrates a similar emphasis on, if not a similar preoccupation with discovering consensus between the contracting parties. The offer (ijab) and acceptance (Qabul) machinery is employed to establish a convergence of minds called Majlis. This notion of majlis which evolved during the period of inter presente contract and prior to the advance of new communication

technology that made distant contracting possible is now being revisited to see whether, like the common law, it too can accommodate new contracting method brought by the fast changing communication technology. Majlis has been described as an expression of Ijab and Qabul made in one time and space. Hence when A makes an offer to B and when B leaves the Majlis or ignores the offer or turns his attention to something else, this means the offer lapses.5 Here Majlis invariably implies the physical presence of both contracting parties and Majlis as an occasion of the meeting of both minds and bodies continue to dominate the Islamic contractual jurisprudence for quite sometime. According to Article 103-104 of Mejelle6 the conclusion of contract consists
5

Alkassani, Badal Sanal Fii Tartib As-Syarat, Beirut, Lebonon, 1997.p 6 The Mejelle is the Turkish Ottoman codification enacted in 1877 of the Hanafi law of obligations.

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of connecting offer and acceptance together legally. The question to be asked here is precisely how offer and acceptance are to be connected together legally. In other words how long is the life of the offer and at what point does acceptance of it become out of time so that the connection between them necessary to constitute mutual agreement does not exist? Islamic contract law answers these questions through its contract concept of the majlis7.According to Coulson essentially the majlis signifies physical proximity . The parties sit down (Arabic;jalasa) together to conclude their bargain. The Majlis therefore begins when the parties so come together and ends only when they separate physically.

Noel J. Coulson, Commercial alw in Gulf states, p40

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Another definition of Majlis Aqad is explained by some other fuqaha is that majlis refer to the unity of time and it does not specify that both parties have to be in one place . In fact if one party is in one place and the other is in another the contract is concluded . This is due to the fact that majlis aqad here refers to the unity of time or the time when the offer and acceptance take place.8 This is similar to the view of Abdul Rahman who has argued that majlis is the period of time when an offer remains capable of acceptance: hence that period has no relevance to the physical presence or absence of the parties.9 Majlis is deemed spatiotemporal and not
8

Jabir Abd. Hadi SalimAs-Shafie, Majlis Aqdi fil fiqhi Islami Wal Qanun Al-Wadhie,2001, Iskandariayah, p91 9 Abdul Rahman, Hasbullah, Offer and Acceptance in Islamic Law of Contract Jurnal Syariah, 8:2, 2000, p.23

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restricted to mere physical presence. Abdul Rahman was referring to contract inter absente made through an agent (Rasul) or by a written document (Kitab). While in his opinion Majlis refers to the offer during its currency, the rules of acceptance dictate that that offer is to be accepted, if it is accepted at all, at the place where the offer is communicated. That apart, majlis here must surely convey the period during which the minds are capable of meeting to produce a consensus. The spatiotemporal significance of Majlis is further reiterated by Wahbah AzZuhayli who states that Majlis does not imply the imperative physical presence of both parties in the same place. He adds that both parties may be in different places as long as there is a medium of communication which can connect them10.
10

Wahbah Az-Zuhayli (1984), AlFiqhul Islami Waadillatuhu, Al-Juzu

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While physical presence in contracts inter presente may require simultaneous exchange of offer and acceptance at the same meeting or Majlis, contracts through letters (risalah or kitabah) may be treated in analogous manner. Sheikh Islam Ahmad Ibn Taymiyyah11 believes that if the letter of acceptance reaches the offeror, a contract is concluded because it is analogous to the offeree being present at that time. Under Islamic law when the parties are not contracting in the presence of each other ( contracting inter absentee), the contract is communicated either by letter (Kitab) or through messenger (rasul). Regarding to the issue of session of meeting or Majlis Aqad, when the parties are contracting inter absentes, the majlis become constructive majlis. The Majlis begins when
Rabi pg. 2947, Darul Fikr, Damsyiq 11 Majmu Fatawa, Al-Mausuah AlFiqhiah(1994), Vol:30 pg.218, Kuwait

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the letter of offer is open and will continue for so long as it is not terminated by the conduct of the offeree such as from the messenger who delivered the offer letter. Essentially therefore the majlis is equivalent to the period of time for which an offer remains capable of acceptance( Abd. Rahman, Hasbullah,200012). In his writing we can see that the writer has proposed that the meeting place or the majlis was regarded as one unit of time and the offer is deemed to be in existence as long as the meeting continues. Whereas for acceptance the offeree has to declare his acceptance in the very place or time where the offerwas communicated to him. If he did not accept until the meeting or majlis breaks up it will render as he has not accepted the offer.

12

Taken from his article Offer and Acceptance in Islamic Law of Contract from Jurnal Syariah, 8:2 (2000) pg 23

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Whereas according to Coulson when the contract is made by letter or messenger, the majlis opens when the letter is received by or the oral offer is communicated through the messenger to the offeree. Termination of this constructive majlis will occur if the offeree does not respond to the letter or the messenger after uninterrupted consideration of its term. He added that the notion of majlis of the parties actual when the contract is inter presente and constructive when it is inter absentes relieved the jurists of any need to elaborate a doctrine concerning offer and acceptance . According to him by definition the majlis means that the offer is communicated to the offeree and when it ends acceptance has either been communicated to the offeror or it has not. If it has not then the offer has lapsed. In the cases of contracts being formed inter absentes by

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means of representatives or by letter, the jurists have extended the theory of majlis by construction13. The majlis was held to open upon communication of the offer to the offeree and to take place where the offeree receives the offer. The majlis inter absente terminates after the reasonable lapse of time during which the offeree failed to respond, or upon the declaration of acceptance by the offeree.14 By analogy with contracts formed inter presente it would follow that the contract is concluded upon communication of acceptance reaching the offeror. However this is not opinion of fuqaha and contract between the absent parties are in fact concluded at the time and the place of acceptance, and therefore before the communication of acceptance

13 14

Kasani, Badai Sana, vol 5,p138 Ibn Hummam, Fath Al-Qadir, vol 5, p462

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reaching has reached the offeror15. Parviz Owsia16 in his book entitled Formation of Contract , a Comparative Study under English, French and Iranian Law stated that eminent post classical jurists believe that the sequence of offer and acceptance is to be left to the custom or uruf. This is somewhat similar to the opinion of Wahbah Az-Zuhayli which further emphasized that majority of jurists unanimously argue that to explain further regarding the session of contract depends on the uruf and custom of that specific community.He further added that meeting or Majlis here does not mean that both parties have to be in one place. They can be in any place as long as there is a medium of
15

S.E Rayner, The theory of Contracts in Islamic Law,p 111 16 in his book entitled Formation of Contract , a Comparative Study under English, French and Iranian Law

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communication which can connect them.Here we can see that the meaning of Majlis Aqad is not taken literally but constructively. Similarly to the view of Sheikh Islam Ahmad Ibnu Taymiyyah17 whereby he stated that in the contract inter absente, the letters or messengers can be used as a medium of communication which constitute the contract as enforceable. Here it implies as if the meaning of majlis aqad is not taken literally only but other means of communication besides face to face can also be used. He also added that in the issue of the contract inter absente the general rule is that the ijab and qabul has to be made simultaneously at the same majlis. However if the contract is made through writing (risalah/kitabah) when the letter
17

Majmu Fatawa, Al-Mausuah AlFiqhiah

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of acceptance reached the offeror the contract is concluded because it implies as if the offeree himself is present during that time.Therefore from the view here we can conclude that the Majlis does not means the physical presence only but other mode of communication can be used as long as it can meet the intention an the objective of the contracting parties. Whether this can be applied in the online contract or not is yet to be proved. Another view is raised by Aznan Hasan18 which holds that there was no provisions in Quran as regards to Majlis Aqad in the online contract. Therefore it is included in the ijtihadiyyah matters which can change according to circumstances of the case.As long as this can
18

in his article entitled , Kerangka ndang-undang Transaksi Maya (Online Transaction) Menurut Pers[ektif Islam presented in seminar Undang-undang dan Teknologi dalam era Baru, KRU UKM, 7 April 2004

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provide for the betterment of the people19. In this case he adopted this view after have taken into consideration for the maslahah (betterment) of both parties. Furthermore, the view is also in line with the writings and views of the conventional and contemporary Islamic scholars. Another interesting point is raised by Ad-Duktur Jabir Abdul Hadi Salim As-Shafie20 when he discussed regarding the conditions for Majlis Aqad.. The most fundamental issue he says irrespective of whether contracts are inter absentee or inter presente, is the presence of intention to contract. That meeting or convergence of intention is the convergence of self, as intention represents the will emanating from a person and therefore the presence of the will implies the presence of the
19

In this case he adopted the view of Dr. Fathi Durayni 20 Majlis Aqad FilFiqhi Islami WalQanun Al-Wadhie

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person.21Therefore from this point we can presume that the presence of the person is not important as long as the intention is there. Thus the meeting of physical is not important but the meeting of minds is prevail in the case of Majlis Aqad. This is supported by Hasbullah Abd. Rahman when he said that the machinery of offer and acceptance brings about the meeting of minds between the parties. He further added that the approach of the courts in attempting to discover whether an agreement has been reached by the parties usually takes the form of interpreting the transactions between the parties into the ready mould of offer and acceptance. Islamic legal jurisprudence allows several
21

Majlis Aqad Fil fighi Islami WalQanun Al-Wadhie,(2001), Darul jamiah Al-Jadidah LilNasyr, Eskandariah

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methods of rule creation and rule validation. The Quran and Sunnah are two primary sources of rule identification and validation. Intellectual discourse to discover new rules beyond what are explicitly enacted in the Quran and passed down as traditions in the Hadiths is permitted through the process of consensus among jurists, Ijtihad or by the way of Qias or analogy. The guiding rule is that both Ijtihad and Qias must remain consistent with or not contrary to the essence of faith or Aqidah. It has been pointed out that the meaning of Majlis Aqad in contract absente such as online contracts must be found in Ijtihad or by way of Qias.22 The English common law experience in dealing with new situation beyond the original design of the law may
22

Aznan Hassan, Kerangka Undang Undang Transaksi Maya Menurut Perspektif Islam presented at the seminar Undang-Undang dan Teknologi Dalam Era Baru UKM 7th April 2004

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help understand how Qias in Islamic jurisprudence can perform similar function. In Cooke v Oxley23 quoted earlier, the courts in the late eighteenth century appeared to the dogmatically inclined to insisting that contracts could may be valid if they were made face to face.24 In that case, the Court ruled that the offeree could not accept an offer some hours after it had been made. Obviously lapse of time renders the offer no longer capable of acceptance and hence purported acceptance of that offer must not bring about the necessary convergence of the minds. The common law courts were able to overcome this inevitable lapse of time involving offer and communication through the mail by treating an offer though the post as being remade each
23 24

(1790) 3 TR 653, 100 ER 785 Swan, J and Reiter, Barry J. Contract, Cases, Notes and Materials. 1985, Canada, Edmond

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moment it goes through the entire postal process.25 It is not entirely untenable for Islamic Legal jurisprudence to adopt a similar approach. Majlis Aqad must therefore refer to the moment, the instance the offer which remains a valid expression of the will of the offeror is met by an acceptance which unequivocally represents the will of the offeree. Abdul Rahmans view that Majlis is the period of time during which an offer remains capable of acceptance likewise can be viewed from the perspective ofoffer being remade during the entire journey through the post. Conclusion Having seen that the concept of Majlis Aqad can accommodate varying methods
25

Such was the view taken in Adams v Lindell, ( 1818) IB & Ald. 681, 106 ER 250

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of contracting, it is now possible to state that on-line contracts like any other inter absente contracts are permissible under the Syariah. Both the common law and the Syariah do not advocate the dogmatic adherence to the offer and acceptance rules in discovering consensus. Departure from these rules may be necessary if others evidence of consensus can be more readily established, such as when intentions to be bound are reciprocal.

REFERENCES

Corbin, A. L. 1917. Offer and Acceptance and Some of the Resulting Legal Relation. Yale Law Journal, 26. Coulson, N. J. 1984. Commercial Law in the Gulf States The Islamic Legal Tradition.

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London: Graham & Trotman Al-Kaasani, I.A. b. A. B. b. M. u. 1997. Badi'u Sana'i fi Tartibi Al-Shara' (Vol. 6th). Bairut: Dar'ul Kutub Al-llmiah. Hassan, D. A. B. 2004, 7 April 2004). Kerangka Undang-Undang Transaksi Maya (Online Transaction) Menurut Perspektif Islam. Paper presented at the Seminar Undang-Undang & Teknologi: Pembangunan UndangUndang dan Teknologi dalam Era Baru, Universiti Kebangsaan Malaysia Leong, A. P. B. 1998. Cheshire, Fifoot and Furmston Law of Contract First Singapore and Malaysian. Singapore: Butterworths. Mausu'ah Fikhiyah. 1994. Kuwait: Wazirah Auqaf Wasyuunu Islami

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Owsia, P. 1994. Formation of Contract A comparative study under English, French Islamic and Iranian Law. London: Graham & Trotman. Rahman, H. H. A.(2000. Offer and Acceptance in Islamic Law of Contract. Jurnal Syariah, 8(2), 1532. Rayner, S. E. 1991. The Theory of Contracts in Islamic Law: A Comparative Analysis With Particular Reference To The Modern Legislation In Kuwait, Bahrain and The United Arab Emirates (1st ed.). London: Graham & Trotman Ltd. Shafi'i, J. a. h. s.2001. Majlis akad Fi Fiqh Islami Wa Qanun wad'i. Iskandariah: Darul Jamiah Jadidah Lilnusyri. Zuhayliy, W. 1997. Al-Fiqh AlIslami Wa Adillatuhu

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(Vol. 4). Damascus: Dar al-Fikr.

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