The Stipulation Inherent in the Nature of the Sale Contract (al-Shart al-ladhi Yaqtadih al-Aqd)
Questions have been raised as to how valid an E-contract is especially bearing in mind the Islamic school rules. There have been changes on terms of contracts and these changes have actually helped modernize business and worldwide acceptance of internet transactions. The progressions of computers, telecommunication and information have certainly brought change to the commerce world. There has been integration electronic operation worldwide. Electronic trading entails the selling and buying of products, services and information by means of a computer network (internet). By E-commerce we imply at least two entities transacting via the internet and those agreements engaging two lawful entities via the internet stand there as media even if there is no awareness of its personal ownership. E-agreements must be carefully drafted to particularly meet agreement specifications.
Sometime it is not important to stipulate conditions on the sale contract and therefore to append a phrase to a sale agreement saying that the acquired item becomes the assets of the purchase is tautological. This requirement is in accordance with the definition of distinctiveness of sale by itself. On top to this sale contract and comparable standard uniqueness of sale for instance price payment and subsequent ownership of the purchased item- the Shafi’i and Hanafi schools comprises of this group of conditions that branch from the particular character of the sale in question. But any sale conditions that are in accordance with the sale agreement do not nullify the sale agreement. In reference to this sale stipulation, if a person or an entity purchases an item on the provision that he becomes the owner, or if the seller conditions a price be paid on the object, or if it is a garment and the buyer wants to wear it, then the sale is permissible. This is because there is no breach of the sale agreement as stipulated in sale clauses and therefore the citing of these clauses is basically recognizing the nature of the agreement. In this case there will be no quashing of the sale.1
The Stipulation Appropriate to the Sale Contract (al-Shart al-Mula’im li al-Aqd)
There are two types of clauses appended to the sale contract even though not as a necessity to the main terms of sale agreement, these clauses make it easy to comply with sale basic demands. They are the suretyship clause (Kafala) and the pledge clause (rahan), whose characteristic entails the reasons of transaction and the legal structure of that particular sale transaction. For that reason, suretyship and pledge are acceptable terms under the entire Sunni Islamic Schools. Any requirement that is applicable to the agreement but not intrinsic in nature as far as transaction is concerned does not nullify the sale agreement. We see that in such situations it is in accordance with its vital connotation and validates it; consequently it commands the prerequisite which is mandatory to the transaction.[1] This applies to the scenario where an individual sells an item on demands that the buyer vows collateral (rahan) as an equal value to the price of the object. Alternatively, on the provision that the purchaser provides a guarantor (Kafil) who provides security for the object’s price: in such circumstances the transaction is legally acceptable by the good feature of juristic liking.
Analogical conclusions (Qiyas) do not allow the transaction for the reason that as a subject of rule, any condition which varies from the main contract cancels it. Suretyship and pledge clauses, being unrelated to the principal terms of the transaction, have accordingly a nullifying effect on the agreement. On the other hand we have clauses allowing sale of objects based on the vow of collateral the same as a counter-value of the price of the object and the same argument applies to suretyship. All above specifications emphasize the right of the seller and thus do not nullify the sale agreement. Since the main reason of pledge is to get reimbursement, a lawful permit depends on its proof of the right to reimbursement, which corroboration is a condition suitable to the sale agreement.[2] Provided that the above is obeyed the sale contract is legal and therefore cannot be quashed.
The Stipulation that is Customary Practice (al-Shart al-ladhi fih Ta’amul)
The Sunni Islamic schools decided that the allowed type of specification called “the conventional stipulation” [3]those clauses are elements of local tradition or custom (Urf). These conventional conditions are permissible to be lawfully binding regardless of the fact that they are outside the fundamental stipulations of the sale agreement. We note that editorial 321 of Murshid al-Hayran has permitted this kind of requirement, so a condition which is not stated in the main contract nor proper to it, however which is general practice, is allowed. For example is an individual purchase a sole on provision that the seller attaches the sole to the shoe. On contrary, analogy preferences (Qiyas) Hanafi jurists do not allow such a demand as the supplementary phrase is not compulsory by the principal agreement and is of profit to barely one of the involved. Therefore, the clause cancels the transaction as a result on one entity benefiting at the expense of the other.
The Stipulation of Benefit to One of the Parties
Sometime we have contract stipulations that may benefit only one entity and therefore invalidate the transaction. The Hanbali and Maliki ruling deals with sale agreement conditions and were drafted in mindful disagreement to the Hanafi is evident from Ibn Qudama’s[4] dismissal of the Hanafi ruling out against extra clauses that profit one of the constricting parties. Thus Hanbali and Maliki jurisprudence legalize the incredibly same sale agreements whose appended clauses or sections were reviewed by Hanafi jurisprudence as quashing the entire agreement.[5] We have de-legitimization of Hanafi School’s Hadith[6] in two phases namely it is not there in the plausible hadith collections and secondly by stick on to a different description of the hadith in subject in which only transaction with two appended clauses are not allowed, the transaction agreements with one supplementary provision – different to the Hanafi verdict – are deemed lawfully binding.[7] Hanafi conservatism concerning sale agreement stipulation were answered by Hanbali namely transaction with appended stipulations and addition of profitable condition under illegitimate gain (riba).
Hanbali and Maliki law elevates the concerned parties’ permission to the position of adequate stipulation for the legality of the sale agreement. While the Hanafis regulation that mutual approval by the buyer and seller to the terms of the agreement is merely a basic stipulation of legitimacy and not enough to legalize the sale, the Ibn Taymiyya[8] views things in a different way. Ibn Taymiyya’s justification of the sale agreement based wholly on the concurrence of the buyer and seller marks a considerable progress for independence of business in Islamic law. The parties have freedom lawfully to lay down whatever conditions they think are in their line of interest, free of customs, similar limitations put forward by Hanafi rule and norms. It is from these truisms that Ibn Taymiyya comes up with extensive conclusions about Islamic legality on agreements and sale of epochs and non-Islamic culture.
We have other matter that hampers the freedom of prerequisite in Islamic sale agreements – that is, the occurrence of usury exclusion on stipulation legalization – the Hanbali and Maliki persistence on the one lawful consequence of motivational and subjective and motivational for example the parties’ approval and their correct intention (niyya) gives way for the acknowledgment of clauses giving advantage to a contracting entity in excess of that included in the main stipulations of the sale agreement. Hanbalis’ and Maliky’s policies are determined by their elementary doctrine concerning the real intention (niyya) or latent motive in accordance with authorized acts. Therefore we see that the legitimacy of a sale is closely linked with the motivations or intentions of either the buyer or the seller under Hanbali jurisprudence. Thus, Ibn Taymiyya’s well-known adherent emphasizes on the illicit/licit personality of the real intentions behind lawful dealings, which personality is critical for the legality of the business deal. It comes out that a transaction is cancelled if the intention of a specific condition in an agreement is profit or interest-charging with no equal value. In simple terms, a transaction is deemed invalid if only one party profits of the business deal. Contrasting the Hanafi school rule, we see that Hanbali School does not decree that non-traditional sections which are of advantage to any one of the concerned parties are generally unacceptable. On condition that the objective of the entities is not baseless gain – an issue that might be judged from the situation and details of the business deal – the appended clauses are acceptable, and therefore the whole agreement is permitted.
The Invalid Stipulation
Islamic schools conform to a lawful act that depends on the object of compulsion (Mahall al-Aqd) stays put whether when appended as a section or in isolation to the main legal act. When put to practice to agreement terms, the rule implies that a stipulation is not the objective of a particular banning established in the Sunnah or Qu’an. This accommodating spirit accepts open formulation as a broad code in Ibn Taymiyya. He limits unacceptable circumstances (al-shurut al-fasida) to two scenarios namely: any section of the term that counteract the lawful principle of the agreement for instance when the seller demands that the purchaser ought not to trade or rent the sold item and secondly, any clause that breach prophetic injunction or an open Qur’anic, for example prohibiting the accepting of interest. Transactions in which we have two sales in just sale were not allowed since it is a form of usury.[9] A scenario of multiple conditions in one agreement, two stipulations in one transaction agreement(Shartan fi Bay’), is where the vendor sells items to the purchaser for 10(ten) dollars in hard cash and for 15 (fifteen) dollars under credit payment mode. Perhaps the may have vendor made two stipulations on sale agreement since this kind of business dealing was prohibited by the Prophet.[10] While on the other hand these boundaries on the number of permissible clauses on sale contract do not matter in Ibn Taymiyya way of thinking and therefore allows such transaction to go ahead.
Based on the above illustrations, it emerges that proof of progress toward bigger opportunity for entity will in lawful acts irrespective of whether is among schools or within one school calls for conditions. We might have schools that allow greater independence in appending terms to agreements in general and transaction agreements in specific are found to be more conventional in terms of restriction on interest or profit on non-fungible property. Any traditional lawful mechanism that focuses on trying to avoid usury prohibition is criticized by Hanbali jurists[11]. On the other hand, the Shafi’i’ school does not consider the inherent objective of such business deals and merely takes into account their clauses and assumes them as completely acceptable.[12] Such dealings of charging interest is a feature of Hanbali rule. On the other hand, Maliki and Shafi’i’ do not agree to this stipulation..
On the theory where should be no transaction without condition, the Hanafis deduces this prophetic restriction as connecting to usury where we have profit without counter-value. Indeed, unfair profit (shabih al-riba) is enough evidence to cancel any agreement having appended clauses or clauses not constituent of custom and is of gain to one of the entities. It appears that this restriction of liberty of business deal (al-shart al-fasid) may the main reason as to why Hanafi school law was removed from the fundamental Mejella al-Ahkam al-Adliyyeh.[13] However any rule comes with its own challenges for instance Mejella al-Ahkam al-Adliyyeh clause is at contracts with Ottoman state jurists: where we have business deal which one entity benefits yet the agreement is valid.[14] According to Hanbali amendments, this kind of sale is unacceptable since it consists of appended stipulation in favour of an entity to the business deal and is definitely in contrary to prerequisites of modern commerce. With its significant restriction of contractual freedom, the Hanafi School’s prohibition of this kind of condition creates a challenge for current Ottoman jurists. A solution is however offered by Hanbali jurisprudence. Under Hanbali jurisprudence we have less strict laws especially where one party benefits as long as there is no breach of their agreement none of the parties complains, such transaction cannot be invalidated.
There has been an evolution of Islamic agreement rule as seen for three schools namely Hanafi, Hanbali and Maliki in which there have true doctrinal transformations in Islamic agreement law. Those advances are clear indications of freedom that is both diachronic and doctrinal and explain why Hanbali School (Ibn Taymiyya and Ibn Qudama) has thrived as compared to Hanafi School. Ibn Taymiyya and Ibn Qudama initiated freedom of stipulation in the transaction agreements which eventually gained popularity in Islamic rule or law. Any appended term is permitted provided that the clauses are not of open prohibition in the Sunnah and Qur’an. Accordingly, Islamic laws concerning business transaction agreements have gained freedom courtesy of late Hanbali school law.
The Formation of a Valid E-Sale Contract
The progressions of computers, telecommunication and information have certainly brought change to the commerce world. There has been integration electronic operation worldwide. Electronic trading entails the selling and buying of products, services and information by means of computer network (internet). By E-commerce we imply at least two entities transacting via the internet and those agreements engaging two lawful entities via the internet stands there as an media even if there is no awareness of its personal ownership. E-agreements must be carefully drafted to particularly meet agreement specifications. For electronic trading, the seller displays products and the prices appending the terms to potential buyers. If the buyer agrees, they make order and arrange to pay. These forms of actually concluding an agreement are now commonly applied. Such a ‘click wrap’ agreement can be for instance the one offered by amazon.com for buying books which have proved to be a secure order.
As far E-contract is concerned, we have forms which are filled and these forms offer contractual stipulations of utilization concerning the website involved. On this form we have terms of engagement which the buyer must read and understand before deciding to buy those services or products.
For HTML-based agreements, e-mails are not employed as a form of communication and all rules applied to e-mail form of communication based contracts apply here. Under click wrap agreements the web clients and servers’ communication is instantaneous as compared to e-mail based contract which is not. In addition if the seller or buyer is not logged on to the internet, the other party will immediately know this. We have an integral self-checking device known as a checksum that constantly checks the transfer of messages between the server and the clients. Should the checksum fail to turn up, then the server or the client will be acquainted with immediate collapse of communication. The checksum device for computer is the same as somebody saying ‘okay?’ in response to question posed via the telephone. The lawful implication of this technological advancement is that click wrap agreements exhibit the features of a telephone talk as compared to a mail communication or message. Once there has been receipt (offeree) of the message, the sender knows immediately, the writing regulations (inter absentes) provided under the umbrella of Islamic rule with consequently not be applicable since there is no need for this. To validate this agreement, click wrap receipt must be acknowledged to be in effect.
An offer is can be defined as a set of conditions that are if successful form the foundation of an agreement or contract. The main characteristic of this suggested set of stipulations is that there a high chance of being accepted since the terms contemplates acceptance. In some cases the offer may be declined based on the terms stipulated if the statements do not reflect acceptance. Such statements which are declined are known as invitations as they open doors to alleged offeree to create an offer, in so doing giving an opportunity to negotiation until agreement is reached. The different between true offers and invitation to treat is that we have a finished contract under true offer while on the other hand the other is simply an offer which needs further negotiations. Different authorities have come up with assumptions to determine whether given stipulations or statements or deeds add up to an offer or simply treat invitation. As a result, we can conclude that shops exhibits are provocation to treat provocation to treat as are revealing objects for transaction at advertisements and auctions.
When these underlying principles are applied actual situation, it is found out that websites advertisements are no different from other cases where display of objects. In fact Web-advertisement is almost the same as shop exhibit as compared to television or magazine advertisements which not interactive. Just to demonstrate how website transaction is interactive, on internet some items such as software can be sampled and once the buyer decides to buy, it can be done with no departure of the store. In most cases internet-advertisements lead to treating invitation except if the web-advertiser points towards intending to accept and be bound by it. Hence, the bond among the contracting entities for closing an agreement tackled in the negotiation procedure comprises an offer or tender provided it is adequately specific and specifies the purpose of the offeror to be held accountable
should acceptance occurs. An offer is satisfactorily definite provided that it shows the items and specifically provides stipulations for a buyer to know the price, the quantity, delivery mode and the parties. Similarly, the procedure of agreement negotiation via the internet or E-commerce is just identical with real reality: where we have to treat invitation, then an offer and counter-tender or counter-offer, and lastly acceptance. As seen earlier, we have three main forms of communication employed in the agreement formation stage namely: web page, chat rooms and electronic mail. Baring in mind that all agreements start with objective negotiations and any of the three above forms of communication can employ, we see that all agreements can be handled easily. The only challenge here is the technological complexities that the internet poses which is merely a way of communication and this technical problem can be solved by hiring computer literate staff for easy facilitation of this transaction.
Conclusion
Having done analysis of Islamic laws concerning sale contracts and the formation of acceptable E-commerce contracts we see that there has been changing in the law to suit the modern world. Those advances are clear indications of freedom that is both diachronic and doctrinal and explain why Hanbali School (Ibn Taymiyya and Ibn Qudama) has thrived as compared to Hanafi School. Ibn Taymiyya and Ibn Qudama initiated freedom of stipulation in the transaction agreements which eventually gained popularity in Islamic rule or law. Any appended term is permitted provided that the clauses are not of open prohibition in the Sunnah and Qur’an. Accordingly, Islamic laws concerning business transaction agreements have gained freedom courtesy of late Hanbali. It is because of these flexing of Islamic trade laws that paved way for E-commerce and therefore all electronic transaction are acceptable as long as they follow the terms of contract and all parties agree. Any breach the stipulated terms will lead to cancellation of the E-sale transaction and possibly open doors for negotiation or end of business.
To cut a long story short, we recommend that the electronic signature or electronic documents be accepted confirmation of approval in an e-sale agreement. Since E-sale is interactive in which both concerned parties communicate and agree based on the stipulations, this contracts are legally binding and therefore the buyer and the seller will be bound by the terms and conditions of the contract. Though, from earlier discussion, owing to the common nature of these personal or subjective criteria in earlier discussion on Islamic law, it is essential to highlight other further objective criteria. The Islamic law initially never allowed this kind of transaction nut later accepted it. Objective criteria have actually been proposed by Islamic doctrine and jurisprudence for example: confirmation of contractual stipulations prior to contracting, checking the intelligibility of the clauses used in the contract, common contract procedure, visual space management and acceptance of the involved buyer. The advantage of these objective criteria is that an opportunity is created in which the buyer subjectively understands the attempt put forward by the vendor to make the details of the agreement recognized. All these criteria put together let us represent a tentative structure in accordance to Islamic law for applications in a field that is in really requires an enhanced harmonization.
To have a valid E-sale contract, it is vital that the buyer is in a position to access the contract terms and understands them. The vendor should make it not possible to access the services or goods before the buy sees the agreement clauses. Moreover, agreement clauses be in simple terms and easy to read; proposing that hyperlinks usage be decided on cautiously and e-sale contract be printable. Right of entry to the e-sale agreement must be possible after the agreement has been “signed” to ensure that all parties are aware of the contract. Contractual clauses must be arranged properly and be of high quality, be tailored to the applicable medium and obey official prerequisites for example those governing signatures and writing. Furthermore for security purposes, steps must be taken to ensure that there are no loopholes that may lead to fabrication of signatures and other vital clauses of the sale contract.
Contract consent ought to be open and all this be attained by use of icons “I accept” and “I refuse” next to each other with a click option so that the buy choose accordingly. Access to services and goods will be denied should the buyer click the icon “I refuse” and the other icon “I accept” will give access. Once more, it is very crucial that the procedure employed to show one’s will must be unambiguous and not look like behaviour usually employed to “surf” a given website. To eliminate all dangers involved, it is recommended that buyer indicates approval by filling out a textbox with the buyer’s name or other identifiers. There must be provisions where the buyer can cancel the contract like in situations where there is an error or if the buyer decides to cancel buying goods and services for any other reason. Additional this cancellation should be in favour of both the buyer and the seller because it might be an expense process for the seller in terms of time and other immaterial looses. A mechanism must be developed to determine whether the buyer or seller is serious about the business deal as some may turn out to be jokers. For permanent proof of the E-sale agreement, the buyer should print the stipulations of transaction or the vendor can print and send them to the buyer and keep the same for future reference. If all these terms and conditions are followed to the letter, then E-sale contract is deemed valid so long as there is no breach of these stipulations by either the seller or the buyer.