The Feasibility of Incorporating the Islamic Law of Contract Principles in Current Common Law System.

Introduction

Kharofa stated that the word ‘aqd (contract) in Arabic language means tying tightly, as in tying a rope. Arabs used the word to speak about firm belief or willpower. They used to say ‘aqd al ‘ahd to mean ‘make a covenant’ and ‘aqd al yamin to mean ‘give an oath’. Al'Aqd carries the meanings of covenant and fulfillment, as we read in the Quran surah Al Maidah verse 1 the meaning:

“Ye who believe! Fulfill (all) obligations. Lawful unto you (for food) are all four-footed animals, with the exceptions named: but animals of the chase are forbidden while ye are in the Sacred Precincts or in pilgrim grab: for Allah doth command according to His Will and Plan.”

In Islamic jurisprudence the word contract is used to mean an engagement and agreement between two persons in a legally accepted, impactful and binding manner. Moreover, the definition of Islamic law of contract also means a connection of the words of one party (ijab) to the words of the other party (qabul) which constitutes legal implication on the subject matter.

Under Common law, a contract is an agreement having a lawful subject matter entered into voluntarily by two or more parties, both parties intends to create one or more legal obligations between them. The elements of a contract are offer and acceptance by proficient persons having legal capacity who exchanges consideration to create mutuality of obligation. Stoljar was described, a contract as when there are mutual promises between two parties to the contract, each party being both a promisor and a promise.

As we see that ‘Adq definition has the equivalent of the technical term of ‘contract’ in Western Jurisprudence. However, ‘aqd does not necessarily involve agreement (which is a necessary element in a conventional contract) because the term is also used to describe a unilateral juridical act which is binding and effective without the consent of the other party. For example: Talaq. Furthermore, in Western Jurisprudence a contract is...