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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

Shaik@putra.upm.edu.my

Siti Salwani Razali,Faculty of Economics and

Management Sciences,

International IslamicUniversity, Jalan

Gombak,53100,Kuala Lumpur,

MalaysiaSalwani@iiu.edu.my

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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.

26

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7/31/2019 2006 Bai 6163

28/29

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

28

7/31/2019 2006 Bai 6163

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(Vol. 4). Damascus: Dar

al-Fikr.