Formation of Contract in the Internet Under Islamic Law
The use of internet as a medium of communication or the trend of cyberspace contracting has widened the scope of contract formation. 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. Uncertai...
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| Main Author: | |
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| Format: | Thesis |
| Language: | English English |
| Published: |
2007
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| Subjects: | |
| Online Access: | http://psasir.upm.edu.my/id/eprint/6913/1/GSM_2007_13.pdf |
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| Summary: | The use of internet as a medium of communication or the trend of
cyberspace contracting has widened the scope of contract formation. 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.
Uncertainties that exist on many legal issues arise out of the online contract
such as when or where the offer and acceptance is made, when the contract
is concluded, whether agreements entered into electronically are enforceable
and whether the display of goods in the web is considered as offer or not etc.
Under Common law itself even though there are established rules regarding
the online contract there are still a few unsettled issues regarding the online
contract mainly because a standard international law governing the online
contract is yet to be found. This is due to the fact that online contracts revolve
around cross border transactions or the contract is beyond the jurisdictions of the respective countries. Therefore there is a great need for a standard
international law.
Under lslamic Law there are several areas of uncertainty which will havesignificant
impacts on electronic contracting according to Shariah. The main
areas are the issues of Majlis Aqad (Unity of Session). This is considered as
a very fundamental issue especially in the online contract which implies the
non physical presence of the parties. Similarly, Khiyar (Options) which is
available to parties contracting inter presente will be an issue in the online
contract. In fact if certain fundamental issues in the online contract are not
resolved, then the dominance entry of the principles of gharar (uncertainty)
will apply which will make online contracts-in lslamic Shariah not feasible . All
other relevant areas to the online contract are discussed such as the issue of
capacity and the doctrine of mistake (ghalaf).
Therefore the study aims to review some of these fundamental notions and
the formation of online contracts not only in Shariah law but also in Common
Law, to achieve an acceptable degree of certainty that will enable the
practice of online contract especially in Shariah. Furthermore, it is hoped that
more practical principles of law governing the online contract can be
established and be made applicable to all parties to the online contract |
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