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COMPARATIVE
CONCEPT OF
MEETING OF MINDS
UNDER COMMON
LAW AND MAJLIS
UNDER ISLAMIC
SHARIAH IN E-COMMERCE
Shaik Mohd Noor Alam S.M.
Husain,Faculty of Economics and
Management, University Putra
Malaysia, Serdang, Selangor,Malaysia
Siti Salwani Razali,Faculty of Economics and
Management Sciences,
International IslamicUniversity, Jalan
Gombak,53100,Kuala Lumpur,
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and etc. However one of the
most important legal issues in
how do we determine the
meeting of minds of both partiesin the online contract not only
under common law but also
under Shariah Law.
In common law traditions, theusual if not the conclusivemethod of discovering the
existence of agreement is by
identifying the time and mannerof the convergence of offer and
acceptance The absoluteness of
the acceptance brings the minds
of the offeror and the offereetogether in a convergence of
complete agreement. This, in
common law language is calledconsensus 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 lawof contract in that an agreement
is a fact that can be achieved by
whatever means in whatever
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manner and through whatever
agency.
The formation of contract inIslam generally does not require
fix formality.
What is required ,as in any otherlegal system is the fundamental
proof of consent by each parties.Consent is discovered by the useof offer and acceptance
methodology. The offer or ijab
and acceptance or qabul mustmeet at the same time and
meeting ormajlis. The existence
ofmajlis can be easily
determined if the contract ismade inter presente or face to
face basis whereby the parties
meet physically at the sameplace.
However the issue arose as tohow do we determine the
existence ofmajlis if the
contract is made inter absente
or without the physical presenceof the parties for instance in the
online contract. And if it is not
there then does this will affect
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the validity of the online
contract under Islamic Law.
Therefore this paper isaimed at analyzing the concept
and the issue of meeting of
minds under common law andMajlis Aqad under Shariah in e-
commerce.
FULL PAPER
In common lawtraditions, the usual if not the
conclusive method of
discovering the existence of
agreement is by identifying thetime and manner of the
convergence of offer and
acceptance. The offer andacceptance tool has provided a
reliable insight into the mental
process of contracting partieswhen negotiating towards an
agreement. That parties must
agree on the same thing in the
same sense to arrive at aconsensus is underlined by the
trite rule that an acceptance must
be unequivocal and absolute.
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The absoluteness of the
acceptance brings the minds of
the offeror and the offeree
together in a convergence ofcomplete agreement. This, in
common law language is called
consensus ad idem or meetingof the minds.
The common law notionof meeting of the minds rather
of the bodies emphasises the
cornerstone of the common lawof contract in that an agreement
is a fact that can be achieved by
whatever means in whatever
manner and through whateveragency.
The House of Lords in Gibson vManchester City Council1has
affirmed this approach, despite
the radical departure from thisapproach 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
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analysed into the form of
offer and acceptance. I
know in some of thetextbooks it has been the
custom to do so; but as I
understand the law,
there is no need to lookfor a strict offer and
acceptance
2
Lord Dennings
reference to some of the
textbooks is of course a matterof 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 centuryand 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 tooffer and acceptance methodology;
Corbin, Offer and Acceptance andsome of the Resulting Legal Relation ,
26 Yale LJ p. 182.
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esoteric art, the presence
of a contract.3
The law is concernedwith consensus as a matter of
fact, not procedure nor means.
Hence meeting of minds cantake place even when bodies are
physically separated both in timeand space as in the case incontracts inter absente. More
emphatically so discovering
consensus becomes less difficultwhen bodies are mutually
present in inter presente
contracts. The means of arriving
at the requisite consensus issimilarly open. Consensus may
even be achieved trough the
agency of machine.
4
Basically, the common
law rules as to the determinationof consensus between the
contracting parties were
formulated during the period
3 Cheshire, et al Law of Contract
11th ed4 In Cooke v Oxley ( 1790) 3 TR 653,
100 ER 785, the Court appeared to
insist on face to face contract.
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when contracts were inter
presente. The advent of new
communication technology,
starting which the postalservices and now the electronic
mail has necessitated the
adaptation of the original rulesto new circumstances. Be that
as it may, the fundamental legalrequirement of consensus hasnot changed: technology merely
brings new methods of arriving
at the consensus,without alteringthe fundamental rule which
requires it.Islamic contractual
jurisprudence demostrates a
similar emphasis on, if not asimilar preoccupation with
discovering consensus between
the contracting parties. The offer(ijab) and acceptance (Qabul)
machinery is employed to
establish a convergence ofminds called Majlis.
This notion of
majliswhich evolved duringthe period ofinter presente
contract and prior to the advance
of new communication
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technology that made distant
contracting possible is now
being revisited to see whether,
like the common law, it too canaccommodate new contracting
method brought by the fast
changing communicationtechnology. Majlis has been
described as an expression ofIjab and Qabulmade in one timeand space. Hence when A makes
an offer to B and when B leaves
the Majlis or ignores the offeror turns his attention to
something else, this means the
offer lapses.5 Here Majlis
invariably implies the physicalpresence of both contracting
parties and Majlis as an
occasion of the meeting of bothminds and bodies continue to
dominate the Islamic contractual
jurisprudence for quitesometime. According to Article
103-104 of Mejelle6 the
conclusion of contract consists
5 Alkassani, Badal Sanal Fii Tartib
As-Syarat, Beirut, Lebonon, 1997.p6 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 askedhere is precisely how offer and
acceptance are to be connected
together legally. In other wordshow long is the life of the offer
and at what point doesacceptance of it become out oftime so that the connection
between them necessary to
constitute mutual agreementdoes not exist? Islamic contract
law answers these questions
through its contract concept of
the majlis7.According toCoulson essentially the majlis
signifies physical proximity .
The parties sit down(Arabic;jalasa) together to
conclude their bargain. The
Majlis therefore begins when theparties so come together and
ends only when they separate
physically.
7 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 itdoes not specify that both parties
have to be in one place . In fact
if one party is in one place andthe other is in another the
contract is concluded . This isdue to the fact that majlis aqadhere 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 periodof time when an offer remains
capable of acceptance: hence
that period has no relevance tothe 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, p919 Abdul Rahman, Hasbullah, Offerand 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 interabsente made through an agent
(Rasul) or by a written
document (Kitab). While in his
opinionMajlis refers to the offerduring its currency, the rules of
acceptance dictate that that offeris to be accepted, if it is acceptedat all, at the place where the
offer is communicated. That
apart, majlis here must surelyconvey the period during which
the minds are capable of
meeting to produce a consensus.
The spatiotemporal
significance ofMajlis is further
reiterated by Wahbah Az-Zuhayli who states that Majlis
does not imply the imperative
physical presence of both partiesin the same place. He adds that
both parties may be in different
places as long as there is a
medium of communicationwhich can connect them10.
10 Wahbah Az-Zuhayli (1984), Al-
Fiqhul Islami Waadillatuhu, Al-Juzu
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While physical presence in
contracts inter presente may
require simultaneous exchange
of offer and acceptance at thesame meeting orMajlis,
contracts through letters (risalah
or kitabah) may be treated inanalogous manner. Sheikh Islam
Ahmad Ibn Taymiyyah
11
believes that if the letter ofacceptance reaches the offeror, a
contract is concluded because it
is analogous to the offeree beingpresent at that time.
Under Islamic law when
the parties are not contracting inthe presence of each other
( contracting inter absentee), the
contract is communicated eitherby letter (Kitab) or through
messenger (rasul). Regarding to
the issue of session of meetingorMajlis Aqad, when the parties
are contracting inter absentes,
the majlis become constructive
majlis. The Majlis begins when
Rabi pg. 2947, Darul Fikr, Damsyiq11Majmu Fatawa, Al-Mausuah Al-Fiqhiah(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 themessenger who delivered the
offer letter. Essentially therefore
the majlis is equivalent to theperiod of time for which an offer
remains capable ofacceptance( Abd. Rahman,Hasbullah,200012). In his writing
we can see that the writer has
proposed that the meeting placeor 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 ortime where the offerwas
communicated to him. If he did
not accept until the meeting ormajlis breaks up it will render as
he has not accepted the offer.
12 Taken from his article Offer andAcceptance 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 isreceived by or the oral offer is
communicated through the
messenger to the offeree.Termination of this constructive
majlis will occur if the offereedoes not respond to the letter orthe messenger after
uninterrupted consideration of
its term. He added that thenotion of majlis of the parties
actual when the contract is inter
presente and constructive when
it is inter absentes relieved thejurists of any need to elaborate a
doctrine concerning offer and
acceptance . According to himby definition the majlis means
that the offer is communicated
to the offeree and when it endsacceptance 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 washeld to open upon
communication of the offer to
the offeree and to take placewhere the offeree receives the
offer. The majlis inter absenteterminates after the reasonablelapse of time during which the
offeree failed to respond, or
upon the declaration ofacceptance by the offeree.14By
analogy with contracts formed
inter presente it would follow
that the contract is concludedupon communication of
acceptance reaching the offeror.
However this is not opinion offuqaha and contract between
the absent parties are in fact
concluded at the time and theplace of acceptance, and
therefore before the
communication of acceptance
13 Kasani, Badai Sana, vol 5,p13814 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 Studyunder English, French and
Iranian Law stated that eminentpost classical jurists believe thatthe sequence of offer and
acceptance is to be left to the
custom oruruf. This issomewhat similar to the opinion
of Wahbah Az-Zuhayli which
further emphasized that majority
of jurists unanimously argue thatto explain further regarding the
session of contract depends on
the urufand custom of thatspecific community.He further
added that meeting or Majlis
here does not mean that bothparties 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 11116 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 ofMajlis Aqad
is not taken literally butconstructively.
Similarly to the view ofSheikh Islam Ahmad Ibnu
Taymiyyah
17
whereby he statedthat in the contract inter absente,the letters or messengers can be
used as a medium of
communication which constitutethe contract as enforceable. Here
it implies as if the meaning of
majlis aqad is not taken literally
only but other means ofcommunication besides face to
face can also be used.
He also added that in the
issue of the contract inter
absente the general rule is thatthe 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
17Majmu Fatawa, Al-Mausuah Al-Fiqhiah
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of acceptance reached the
offeror the contract is
concluded because it implies as
if the offeree himself is presentduring that time.Therefore from
the view here we can conclude
that the Majlis does not meansthe physical presence only but
other mode of communicationcan be used as long as it canmeet the intention an the
objective of the contracting
parties. Whether this can beapplied in the online contract or
not is yet to be proved.
Another view is raisedby Aznan Hasan18 which holds
that there was no provisions in
Quran as regards toMajlis Aqadin the online contract. Therefore
it is included in the ijtihadiyyah
matters which can changeaccording to circumstances of
the case.As long as this can
18 in his article entitled , Kerangkandang-undang Transaksi Maya
(Online Transaction) MenurutPers[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 viewsof the conventional and
contemporary Islamic scholars.
Another interesting point
is raised byAd-Duktur JabirAbdul Hadi Salim As-Shafie20
when he discussed regarding the
conditions forMajlis Aqad.. The
most fundamental issue he saysirrespective of whether contracts
are inter absentee or inter
presente, is the presence ofintention to contract. That
meeting or convergence of
intention is the convergence ofself, as intention represents the
will emanating from a person
and therefore the presence of the
will implies the presence of the
19In this case he adopted the viewof Dr. Fathi Durayni20Majlis Aqad FilFiqhi Islami Wal-Qanun 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 theintention is there. Thus the
meeting of physical is not
important but the meeting ofminds is prevail in the case of
Majlis Aqad.
This is supported by
Hasbullah Abd. Rahman when
he said that the machinery ofoffer and acceptance brings
about the meeting of minds
between the parties. He further
added that the approach of thecourts in attempting to discover
whether an agreement has been
reached by the parties usuallytakes the form of interpreting the
transactions between the parties
into the ready mould of offerand acceptance.
Islamic legal
jurisprudence allows several
21 Majlis Aqad Fil fighi Islami Wal-Qanun 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 andvalidation. Intellectual discourse
to discover new rules beyond
what are explicitly enacted inthe Quran and passed down as
traditions in the Hadiths ispermitted through the process ofconsensus among jurists,
Ijtihad or by the way of Qias
or analogy. The guiding rule isthat bothIjtihadand Qias must
remain consistent with or not
contrary to the essence of faith
orAqidah. It has been pointedout that the meaning ofMajlis
Aqadin contract absente such as
online contracts must be foundinIjtihador by way ofQias.22
The English common
law experience in dealing withnew situation beyond the
original design of the law may
22 Aznan Hassan, Kerangka Undang Undang Transaksi Maya Menurut
Perspektif Islam presented at theseminar Undang-Undang dan
Teknologi Dalam Era Baru UKM 7th
April 2004
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help understand how Qiasin
Islamic jurisprudence can
perform similar function. In
Cooke v Oxley23 quoted earlier,the courts in the late eighteenth
century appeared to the
dogmatically inclined toinsisting that contracts could
may be valid if they were madeface to face.24
In that case, the Court
ruled that the offeree could notaccept an offer some hours after
it had been made. Obviously
lapse of time renders the offer
no longer capable of acceptanceand hence purported acceptance
of that offer must not bring
about the necessary convergenceof the minds. The common law
courts were able to overcome
this inevitable lapse of timeinvolving offer and
communication through the mail
by treating an offer though the
post as being remade each
23 (1790) 3 TR 653, 100 ER 78524 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 Legaljurisprudence to adopt a similar
approach. Majlis Aqad must
therefore refer to the moment,the instance the offer which
remains a valid expression of thewill of the offeror is met by anacceptance which unequivocally
represents the will of the offeree.
Abdul Rahmans view thatMajlis is the period of time
during which an offer remains
capable of acceptance likewise
can be viewed from theperspective 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 otherinterabsente contracts are
permissible under the Syariah.
Both the common law and the
Syariah do not advocate thedogmatic adherence to the offer
and acceptance rules indiscovering consensus.Departure from these rules may
be necessary if others evidence
of consensus can be morereadily established, such as
when intentions to be bound are
reciprocal.
REFERENCES
Corbin, A. L. 1917. Offer and
Acceptance and Some ofthe Resulting Legal
Relation. Yale Law
Journal, 26.Coulson, N. J. 1984.
Commercial Law in the
Gulf States The IslamicLegal Tradition.
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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. Offerand Acceptance in
Islamic Law of Contract.Jurnal Syariah, 8(2), 15-32.
Rayner, S. E. 1991. The Theory
of Contracts in IslamicLaw: A Comparative
Analysis With Particular
Reference To The
Modern Legislation InKuwait, Bahrain and
The United Arab
Emirates (1st ed.).London: Graham &
Trotman Ltd.
Shafi'i, J. a. h. s.2001. Majlisakad Fi Fiqh Islami Wa
Qanun wad'i.
Iskandariah: Darul
Jamiah JadidahLilnusyri.
Zuhayliy, W. 1997. Al-Fiqh Al-
Islami Wa Adillatuhu
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(Vol. 4). Damascus: Dar
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