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Contract and Aqd, are they functionally different?

Mohammad Rasmi Al-Umari Department of Private Law, Mutah University, Karak, Jordan, and

Mutasim Ahmad Alqudah Department of Private Law, United Arab Emirates University,

Al Ain, United Arab Emirates

Abstract Purpose – The purpose of this paper is to determine whether there is any fundamental difference in the meaning of contract in these two legal systems by analysing some of the essential principles of contract particularly parties’ agreement and consideration. Design/methodology/approach – This paper seeks to investigate the degree of equivalency of the term contract and its Islamic law counterpart “Aqd”. To implement this task, it applies some comparative law techniques to examine certain contractual elements under common law and Islamic law. Findings – The argument that “contract” and “Aqd” are not equivalent is superficial, and it is not well- supported by concrete evidence. The examples used to build this argument are merely limited exceptions to the general principles of contract, and some of them even exist under both legal systems in a similar manner such as “deed” and “Hibah”. Practical implications – The paper is of interest to legal practitioners and professionals working in cross-cultural or international contexts, as understanding points of conformity and disconformity between “contract” and “Aqd” can help in multiple ways. These may include negotiating international transactions, contract drafting and dispute-resolution processes involving parties from Western and Islamic law-based jurisdictions. It may also aid policymaking and lawmaking processes aiming to harmonize contract principles across different jurisdictions. Social implications – The research paper is important for public attitude, as understanding similarities and differences between “contract” and “Aqd” fosters mutual respect, tolerance and cooperation between individuals and communities adhering to different legal systems. Originality/value – There is a common belief that the term “contract” substantially differs from “Aqd”, and it is by no means safe to presume that every “Aqd” qualifies as a contract. The current research introduces a new point view on the degree of conceptual equivalency of the two terms by showing resemblances in aspects relating to some contractual elements which have always been viewed as an area of divergence rather than convergence.

Keywords Islamic law, Equivalency, Common law, Contract, Aqd, Parties’ agreement, Consideration, Unilateral contract

Paper type Viewpoint

1. Introduction Contract is usually defined as an agreement between two or more parties that creates mutual obligations enforceable by law. However, there has been considerable debate on whether the term contract and its Islamic law counterpart “Aqd” are really equivalent. There is a common belief that the term “contract” substantially differs from “Aqd”, and it is by no means safe to assume that every “Aqd” qualifies as a contract.

This article seeks to investigate the degree of equivalency of the term contract under both Western law and Islamic law. The researchers’ purpose is to determine whether there is any

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Received 6March 2023 Revised 4 June 2023

Accepted 27 July 2023

International Journal of Law and Management

Vol. 66 No. 1, 2024 pp. 11-22

© EmeraldPublishingLimited 1754-243X

DOI 10.1108/IJLMA-03-2023-0040

The current issue and full text archive of this journal is available on Emerald Insight at: https://www.emerald.com/insight/1754-243X.htm

fundamental difference in the meaning of contract in these two legal systems by analysing some of the essential principles of contract.

It should be noted that the term “Western law” in this research only refers to the common law system. There are two main reasons for this: firstly, most North African and Middle Eastern countries have pluralistic legal systems based on sharia and civil law. Therefore, there is a huge body of literature on themeaning of contract under both Islamic law and the civil law system.

Secondly, including otherWestern legal systems, for example, the civil law system, in the study will make the scope of the study too wide to cover in a journal article.

It should also be noted that a complete analysis of all points of controversy over the meaning of contract under Islamic law andWestern law is outside the scope of this article. It will therefore focus on some key issues in the debate, such as the role of parties’ agreement as an essential element of the contract and the role of consideration in creating a legally binding contract.

The main contribution of this paper is investigating aspects of the equivalency of “contract” and “Aqd” in Western law and Islamic law. It may be of interest to legal practitioners and professionals working in cross-cultural or international contexts, as understanding points of conformity and disconformity between “contract” and “Aqd” can help in multiple ways. These may include negotiating international transactions, contract drafting and dispute-resolution processes involving parties from Western and Islamic law- based jurisdictions. It may also aid policymaking and lawmaking processes aiming to harmonize contract principles across different jurisdictions.

The first part of the article explains the meaning of contract under both western and Islamic law systems. The second part explains the approach taken to the interpretation of the term “Aqd”, through studying the major difference in the basic elements of contract under both Western and Islamic law, mainly parties’ agreement and consideration. To dig deeper for the similarities and differences between the two systems, the third part pays special attention to the enforceability of uniliteral contracts under western law and Islamic law.

2. Meaning of contract underWestern law and Islamic law Creation of a valid binding contract under Western law requires the following essentials: offer and acceptance, intention, consideration, legal capacity, genuine consent and legality of object (Turner and Trone, 2019). These essentials are similar to those required by the Jordanian Civil Code (JCC), which is based on Islamic jurisprudence, to create a legally bindingAqd (Razali, 2010).

Article 87 of the JCC defines Aqd as:

[T]he coming together of an offer made by one of the contracting parties with the acceptance of the other in such a manner as to determine the effect thereof on the subject matter of the contract and from which results obligations upon each of them with regard to that which each is bound to do for the other.

This definition makes it obvious that every Aqd must involve an offer and an acceptance, both made with free will and by persons who enjoy legal capacity [1]; otherwise, the aqd is void [2]. The intention to create a legal relationship is understood and is studied in Islamic jurisprudence under consent (Sadiq, 1998). Moreover, the subject matter of a contract must be legal [3]. The requirements for creating a valid Aqd under Jordanian law (as an example of a country that applies Islamic contract principles) have profound similarities that could pass as being identical to those required by Australian law (used as an example of a legal system that adoptsWestern contract theory).

However, the argument for similarity did not pass without opposition. As mentioned above, there is common believe among some scholars that there are major differences in the basic elements of contract under both common law and Islamic law, mainly with regard to

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the role of parties’ agreement and the role of consideration. This will be discussed in the following two sections.

3. Approach to the interpretation of the termAqd The term contract is usually translated into the Arabic term Aqd (plural Uqud), a noun derived from the root Aqda, which literally means “bond” or “tie”. Some Western scholars argue that Aqd and contract are not functionally equivalent (MacMillan and Stone, 2012). To support this claim, Coulson argued that the essential elements needed to create a valid Aqd vary from those required to create a legally binding contract in Western countries. He observed that:

[W]hile uqud may be translated as ‘contracts’, because the term normally refers to legal transactions which are concluded by an offer from one party and acceptance from the other, it must be emphasised that an Aqd or ‘contract’ in Islamic jurisprudence means no more and no less than a legal undertaking, the essential of which are very different from ‘the binding promise’ which constitutes a contract in Western law. (Coulson, 1984)

It is quite clear that Coulson relies on the role of agreement as an essential contractual element in deciding the meaning of a contract. His argument means that a legally binding contract, particularly in common law countries, requires an agreement, while this element is not necessary for creating a valid Aqd in Islamic jurisprudence. He also extends his argument by concluding that Western and Islamic contract principles are fundamentally different because consideration is not required to create a legally binding Aqd (Childress, 1990).

The next two sub-sections will examine the approach of interpretation that led to these conclusions, with regard to the role of parties’ agreement and the role of consideration as contractual elements.

3.1 Approach to the interpretation of the role of parties’ agreement The claim that Aqd does not require agreement seems to be an inaccurate interpretation of Islamic Aqd principles and of the meaning of Aqd as a legal term (Shimizu, 1989). Agreement is not only essential to create a valid Aqd but the Aqd itself is defined as an agreement. In Islamic jurisprudence – the historical source of contract law in many Middle Eastern jurisdictions – it has been claimed that Aqd is a metaphor for the parties who choose to voluntarily tie themselves to an agreement (Husain, 1998). Muslim scholars have argued that every Aqd is an agreement, whereas the opposite is not necessarily true (Vohrah, 2000). For example, international conventions are agreements between countries, but they are not contracts (Majid, 1956). Hence, it is inaccurate to claim that an Aqd does not involve agreement.

The problem behind this interpretation lies in the methodological approach that led to this assumption. Scholars who adopt this view usually focus on old Islamic jurisprudence rather than contract law in Islamic countries. For example, Coulson mentioned classical jurisprudence schools and books, such as “al-Mughni of Ibn Qudama” and the “Maliki fiqh” (Coulson, 1984). Al-Mughni is the name of the book (it means “the adequate”), and Ibn Qudama is the author, who died in 1323; Maliki fiqh is a series of books, fiqh means jurisprudence and Maliki is an adjective, which is derived from the name of a well-known scholar in Islamic history called Malik Ibn Anas, who died in 795 (Pearson et al., 1979).

There is no doubt that there is a fundamental relationship between these books as a source of Islamic jurisprudence and the modern Aqd principles in terms of the structure and the interpretation of its key terms. It is almost impossible to understand modern Islamic

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Aqd principles accurately without referring to classical Islamic jurisprudence on Aqd The classical jurisprudence on contract is the foundation of the modern principles and links it back to religion.

However, the fact that old Islamic jurisprudence can be used to interpret Aqd principles does not mean that “Aqd” does not requires agreement. As mentioned before, agreement is the essence of “Aqd” under Islamic jurisprudence, and any undertaking that qualifies as a contract without a need for both parties’ agreement is basically an exception with very limited influence. Such an exception cannot be taken as a general rule in construing general principles of contract under classical Islamic jurisprudence and contemporary Islamic law.

Another methodological problem is the limited reference to the civil codes of Islamic law- based jurisdictions which reflects the modern Islamic perspective of contract principles that developed over time [4]. Such a reference when made can clarify how crucial is the parties’ agreement, and it appears that Coulson ignored this issue. Many Muslim writers have adopted a similar approach (Mohammed, 1988).

Evidently, a major source of the problem is the comparison of classical Islamic contract principles, which were applied between the eighth and fourteenth centuries, with the contract theory of the twentieth century in common law systems. The validity of the outcomes of such comparison to make general assumptions about the meaning of contract under Islamic law seems to be questionable. There is a huge time difference between the two systems that ignores massive legal developments that the Muslim world witnessed during the codification movement that started in the 19th century.

Historically, the law was not divided as it is currently. The classical school of Islamic jurisprudence did not distinguish between commercial and civil law and did not have codes. Moreover, classical jurisprudence considered family law side-by-side with transactions (uqud) which is not currently the case as both areas are considered separate domains of law governed by different legislation, and transactions (uqud) are subjugated to the civil code.

Aqd is used in Islamic jurisprudence to describe every agreement to create, amend, cancel or end an obligation. In this sense, Aqd was used in its etymological meaning of “tying up”, rather than as a technical term (Hassan, 2002). Marriage is an Aqd (Shimizu, 1989). However, as marriage is subjugated to family law, it is an Aqd that differs from the Aqd regulated by the provisions of the civil code. Likewise, divorce is an Aqd because it ends the marriage Aqd. Divorce is also governed by the provisions of family law. This is to say that Aqd must be studied, analysed and understood in the context of the legal domain to which it belongs.

Accordingly, the divorce example given by Coulson to demonstrate that Aqd does not necessarily involve agreement, in support of his claim that Aqd and contract are different, was misleading because contractual and family relationships belong to different legal domains. The assumption that contract and Aqd are fundamentally different because divorce does not require agreement is too general. By using the divorce example to compare Aqd and contract, Coulson compared the provisions of family law in the legal history of one jurisdiction with contract law in another.

Although agreement is important when creating Aqd , Muslim scholars have not listed it under the essentials of a valid Aqd. Therefore, if one wants to translate the essentials of creating a valid Aqd under Islamic contract principles, one cannot find “agreement” (“itfiaq” in Arabic) among them. The latter means no more and no less than the coming together of an offer made by one of the contracting parties with the acceptance of the other (Jalil and Rahman, 2010). According to Muslim scholars, agreement is not a separate requirement to create a valid Aqd, but a title that describes the meeting of two intentions. The essential elements are the offer and the acceptance. The agreement (itfiaq) is only a term

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that summarises what has occurred between the parties, and there is no need to mention agreement if onementions an offer and an acceptance.

Conversely, a group of common law scholars have argued that agreement is not essential for the creation of a valid contract. Some textbooks have defined contract as “an enforceable agreement” (Turner and Trone, 2019; Jenkins, 2011). Fifoot et al. (1986) claim that this definition is inaccurate because “deeds” do not depend on agreement, yet they constitute contracts. However, this argument is weak because no legal system will enforce any transaction with deeds as a contract without the acceptance of the other party. Murray contended that “[g]ivers are free to give or not; recipients are free to accept or not” (Murray, 2002). Perhaps what those scholars Cheshire, Fifoot and Furmston had in mind when making their point is the case in which the grantor makes a deed without discussing it with the grantee. However, the acceptance of the grantee must occur at some point before the deed is enforceable. If the grantee refuses the deed, no legal system will force an acceptance of it (Jennings, 2007). However, if “agreement” here is used in the sense of negotiation (bargain), that is a misuse of legal terms, as “negotiation” and “agreement” are not synonymous. Many contracts are made on the basis of “take it or leave it” (i.e. contract of adhesion) (Tutt, 2013).

Islamic and Western contract principles agree that agreement is essential when creating a valid (i.e. legally binding) contract, although they discuss the concept in different contexts. For example, Jalil and Rahman argued that “to make a contract in the Islamic law, there must be an agreement between two parties” (Jalil and Rahman, 2010). Accordingly, the difference between the two systems regarding agreement is not that an agreement is not necessary to create an Aqd, but is in the way jurisprudence explains it in both systems.

3.2 Approach to the interpretation of the role of consideration The claim that consideration is not necessary for the creation of a valid Aqd, while it is essential for a legally binding contract, is not based on a solid comparative foundation. Although this might be surprising to many, consideration is equally important in both common law systems and Islamic contract principles.

If “essentials” refers to the elements whose non-availability results in nullification of the contract, consideration is not essential, even in common law systems. Deeds do not require consideration, yet they are considered to be contracts. The general principle in common law countries is that no contract is enforceable in the absence of consideration unless it is a deed [5], whichmeans that consideration is relevant only when a contract is bilateral.

In Jordan – as an example of countries that adopt Islamic contract principles – this type of contract is known as uqud almwawada, which can be translated as “synallagmatic contract” (Carter et al., 2006). A typical example of these contracts is a contract of sale, in which one party promises to pay the price of something and the other party promises to deliver the goods. Consideration is expressly provided for in Article 87 of the JCC which defines Aqd as:

The coming together of an offer made by one of the contracting parties (ijab) with the acceptance of the other (qbool), together with the agreement of both of them in such a manner as to determine the effect thereof on the subject matter of the contract and from which results obligations upon each of them with regard to that which each is bound to do for the other [6].

The key phrase to focus on in this article is “from which results obligations upon each of them with regard to that which each is bound to do for the other”. This is referred to in Islamic jurisprudence as “mutual obligation”, which is referred to in common law system as “consideration”. According to Turner and Trone, consideration “means that a promise can

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only be legally enforced by promise [. . .] if the promise can show that they have given or promised to give something in return for the promise” (Turner and Trone, 2019). Jenkins defined consideration as “something of value that is exchanged by the parties to a contract to secure their respective promises. It is the thing that someone does in exchange for the promise of another party” (Jenkins, 2011). As a rule, “[u]nder the Islamic law of contract there must be a consideration in a contract. If there is no consideration, the agreement will not be valid as it is not enforceable by law” (Jalil and Rahman, 2010).

In light of the above, it is difficult to understand the logic upon which the assumption that Aqd does not necessarily require consideration is based. It raises the question of where this assumption originated. One possible answer may be that material was poorly translated. To illustrate, if one translates the legal requirements to create a valid Aqd under the Islamic contract principles into English, one cannot find consideration among them because consideration is not essential to every Aqd. Muslim scholars have discussed consideration only in the context of the contracts to which it was relevant (Laluddin et al., 2012).

Consideration in the sense of “a payment or reward” is regarded by Muslim scholars as an obligation, not as being essential to creating a legally binding bilateral contract (Atiyah,1990). The reason why a party is obligated to do something is because they made an agreement with the other party, who is obligated to do something in return. Smith claimed that “[t]he rule’s ultimate purpose, in the realist view, is to function as a residual category; it allows judges to rely on reasons that have not been and in some cases, arguably cannot be, incorporated explicitly into the law” (Smith, 2004).

Therefore, the obligation of one party is the right of the other party (Islam, 1998). As each party has the right to waive their right and exempt the other party from their obligation, the consideration is not regarded as essential to the creation of a valid Aqd. If it is classified as being essential to a contract, this would mean that the law restricts the parties’ freedom. In other words, classifying consideration as an essential element of a legally binding contract could mean, according to Muslim scholars’ understanding of obligation theory, that if one of the contracting parties have voluntarily chosen to absolve the other party from his/her obligation, this will make the transaction void and null. This is simply because, if one of the essentials is missing, the transaction is void and has no legal effect (Miller and Cross, 2012). Evidently, no legal system considers such a transaction to be void.

Another possible reason for not mentioning consideration as an essential element of a legally binding Aqd is that Aqd has two forms in Islamic jurisprudence: unilateral contracts and bilateral contracts. Muslim scholars have classified contracts in various ways depending on the nature of the classification (Coulson, 1984). For example, contracts can be classified, based on whether they are explicitly mentioned in the law, into nominate and innominate contracts. Examples of nominate contracts in Jordan include the sale contract, hire contract and contract of agency (wakala), hibah and ariyya [7]. Another way to classify contracts is by reference to whether they contain executory promises by one or both parties; if only one party is obligated in a contract, it is unilateral; otherwise it is bilateral [8]. However, classifying contracts is not part of the Islamic contract principle, but rather an academic approach is used to explain contracts according to their classification.

According to Carter, the distinction between unilateral and bilateral contracts was abandoned in Australia, as an example of the common law system, “because of doubts as to its utility” (Carter et al., 2006), given that unilateral obligations do not have consideration and cannot constitute a contract. However, this contradicts the fact that a deed is enforceable as a contract, although it does not involve consideration (Turner and Trone, 2019). Even the

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common law system gives effect to some types of obligations in which only one party is obligated to do something without receiving anything in return.

One of the most important points used to compare the common law system and the civil law system regarding the matter of consideration is that in the common law system, it is not necessary for consideration to be monetarily fair, which is not the case in most civil law countries. However, this is not the case under the Islamic contract principles. Jalil and Rahman claim that:

A consideration needs not be adequate as an inadequate consideration is enough to validate a contract as long as the parties give consent freely to the agreement upon which they are satisfied. If a contract is not caused by a misrepresentation, fraud, coercion, undue influence and other attendant legal ambiguities then the contract is valid even though its consideration is not adequate (Jalil and Rahman, 2010).

According to the JCC, a contract may not be cancelled on the basis of a gross cheat (i.e. unfair consideration) in the absence of misrepresentation, save in respect of the property of a person under restriction, waqf property (i.e. an endowment made by a Muslim to a religious, educational or charitable cause) and property of the State [9]. Accordingly, in regard to consideration, there is no huge difference between the Western contract theory and Islamic contract principles. It is a matter of how and in which context it is explained. To shed more light on the role of consideration under both systems, the next section explains the enforceability of unilateral contracts underWestern and Islamic law.

4. Enforceability of unilateral contracts underWestern law and Islamic law In Islamic jurisprudence, there are a few unilateral contracts enforceable by law in the lack of consideration. The most important of them are hibah and ariyya. Hibah can be defined as the passing of property, or a right in property, to another person during the period of the lifetime of the owner, without consideration [10]. Ariyya is the conferment of ownership upon another, of the use of an item of property, without consideration, for a specified period or purpose [11]. There is a common assumption that such transactions are not enforceable as contracts in common law countries (Coulson, 1984), which has played an important role in shaping the claim that contract and Aqd are different. In this section, the accuracy of this assumption is examined by comparing the functionality of hiba and deeds. Ariyya is a non-binding contract that either party can terminate at any time regardless of the time agreed upon; therefore, it will not be discussed [12].

One of the noteworthy things regarding hibah is that it is usually translated as “donation” or “gift” (Laluddin et al., 2012; Kureshi and Hayat, 2015), a transaction generally not enforceable by law in common law countries (Siems, 2018). Therefore, it is necessary to determine whether “donation” is an accurate translation of hibah. This is important because translation is one of the most influential factors in determining the success of studies that compare legal systems that do not use the same language (Reitz, 1998). The translation of legal terminology is not an easy task owing to cultural reasons (Rudden, 1991).

Sacco argued that comparative lawyers should learn “not to translate” (Sacco, 1992). However, when translating, it is not also enough for comparatists to understand legal terms in the original language, they must also be familiar with the function of the legal terms within the legal systems being compared.

4.1 The problem of translating hibah into donation or gift The Arabic term hibah means to give something without receiving anything in return (Al-Mawsu’a Al-Fighiyya, 1983). This is similar to the meaning of two English terms:

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gift and donation. The former is “[t]he transference of property in a thing by one person to another, voluntarily and without any valuable consideration” [13], whereas the latter refers to “[t]he action or contract by which a person transfers the ownership of a thing from himself to another, as a free gift” [14]. Hibah is frequently translated as gift or donation. However, when applied in practice, hibah does not mean donation or gift. To find the Western law equivalent term for the Arabic term hibah, it is important to determine the accurate meaning of hibah as a legal term.

Muslim scholars have extracted four requirements for hibah as a legally enforceable transaction: offer and acceptance, the object must be property, hibah must occur during the lifetime of the donor and there must be no consideration (Yusof and Ahmad, 2013). This is known as unconditional hiba. However, hibah can also be conditional when subject to certain conditions.

The effectiveness of a hibah must be dependent on any procedure required by law for the transfer of ownership of property [15]. If the subject matter of a hibah is movable property, there is no need to register it as long as the given property is delivered [16]. However, neither a promise to make a hibah nor a hibah of future property is valid [17]. If the subject matter of a hibah contract is immovable property, it must be in writing, signed and registered before the relevant authority [18]. Briefly, a hibah contract is a contract whereby the donor passes the ownership of property to another person without consideration, and its subject matter must be in writing, signed and registered if the subject matter is immovable property.

The common law system does have an equivalent term of hibah for immovable property. It is deed and it is defined in the Oxford English Dictionary as “[a]n instrument in writing [. . .] purporting to effect some legal disposition and sealed and delivered by the disposing party or parties” [19]. A deed is a “written document that must make it clear on its face that it is intended to be a deed and validly executed as such” (Goldsworth, 2011). As a rule, a deed must be written, signed, sealed and delivered (Turner and Trone, 2019). A deed of a gift is “a deed conveying property from one person, the donor, to another, the donee, where the donee gives no consideration in return” [19]. This definition matches the definition of the unconditional hibah contract.

One of the most common types of deeds is an escrow, which was explained by Lord DenningMR, inKingston v.Ambrian Investment Co Ltd:

When a party executes a deed of transfer as an escrow, it means that he executes it subject to a condition, express or implied, which is thereafter to be fulfilled. As soon as the condition is fulfilled the transfer becomes complete. The deed operates to transfer the title to the transferee. If, however, the condition is not fulfilled, the deed is not effective to make the transfer [20].

It is evident that an escrow is functionally similar to the conditional hibah under Jordanian law. For the purpose of comparison, hibah must be translated as deed and not into donation or gift.

The claim that Aqd and “contract” are fundamentally different because hibah is enforceable under Islamic contract principles, while “donation” is unenforceable as contract under the common law system, has not been based on sound comparative grounds and is therefore unreliable. “Deed” and hibah are similar and serve the same purpose. Therefore, theoretically, it can be claimed that common law contract theory and Islamic contract principles, as applied in Jordan, agree that no contract is enforceable in the absence of consideration, unless it is a gift that meets certain legal requirements. The legal document necessary to implement this gift is known in the common law system as “deed” and under Islamic law as a hibah contract.

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5. Conclusion There is obvious disagreement over the equivalency of “contract” and “Aqd” that rises from the controversy over the role of parties’ agreement and consideration as contractual elements. It has been argued that an “Aqd” does not necessarily requires parties’ agreement to be valid. The same also applies to consideration. This contention relies mainly on the fact that old Islamic jurisprudence recognized the validity of very few contracts that do not require both parties’ agreement, such as divorce, or do not require mutual obligations of the parties such as “Hibah”.

Reliance on special types of contracts limited in number and influence does not seem to be enough foundation to claim that parties’ agreement and consideration are not essential contractual elements under Islamic law. The old literature on Islamic jurisprudence makes it clear that “Aqd” is basically an offer and acceptance, and this is the essence of parties’ agreement. Islamic contract principles have developed over time until reached the stage of codification. Modern contract principles in Islamic law-based jurisdiction do treat parties’ agreement as the most essential contractual element. This is something that needs to be taken inconsideration when making judgments about Islamic contract principles.

Both common law and Islamic law systems recognize special types of unilateral obligations that can be enforced as contracts. In Islamic law-based jurisdictions, these obligations are referred to as hibah, and as “deeds” in Western law systems. In Western legal systems, no contract is enforceable in the lack of consideration unless it is a deed, and in Islamic law, no contract is enforceable with a lack of “mutual obligations” unless it is a hibah.

To sum up, the argument that “contract” and “Aqd” are not equivalent is superficial, and it is not well-supported by concrete evidence. The examples used to build this argument are merely limited exceptions to the general principles of contract, and some of them even exist under both legal systems in a similar manner, such as “deed” and “Hibah”.

Further research could be done to examine more aspects of equivalency in the area of contract law betweenWestern law and Islamic law. As mentioned earlier, such research can be advantageous to the legal community, especially with regard to matters that take place across jurisdictions. It could also prove useful to policy making and legal education, as well as the public attitude, since understanding similarities and differences between “contract” and “Aqd” fosters mutual respect, tolerance, and cooperation between individuals and communities adhering to different legal systems.

Notes

1. The JCC No 43 of 1976, Art 90 states that: “A contract shall be made by virtue solely of the confluence of offer and acceptance, subject to the specific provisions laid down for the making of the contract by law”.

2. The JCC No 43 of 1976, Art 90 states that: “A contract shall be made by virtue solely of the confluence of offer and acceptance, subject to the specific provisions laid down for the making of the contract by law”, Art 168.

3. The JCC No 43 of 1976, Art 90 states that: “A contract shall be made by virtue solely of the confluence of offer and acceptance, subject to the specific provisions laid down for the making of the contract by law”, Art 88/4.

4. For example, the JCC was enacted in 1976, the UAE Civil Code was enacted in 1985 and the Egyptian Civil code was enacted in 1948.

5. Moschi v. Lep Air Services Ltd [1973] AC 331 at 346.

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6. JCC, Art 87.

7. JCC, Art 465, Art 658, Art 833, Art 567. Art 763,

8. JCC, Arts 557–760.

9. JCC, Art 189.

10. JCC, Art 557.

11. JCC, Art 760.

12. JCC, Art 763.

13. Oxford Dictionary of English, meaning of gift.

14. Oxford Dictionary of English, meaning of donation.

15. JCC, Art 566/1.

16. JCC art 566/2.

17. JCC art 563.

18. JCC art 566/1.

19. Oxford Dictionary of English, definition of deed.

20. Kingston v. Ambrian Investment Co Ltd [1975] 1 WLR 161 at 166.

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About the authors Dr Mohammad Rasmi Al-Umari is an Assistant Professor of law at Mutah University-Jordan and the Director of the in-house law office of the university. Dr. Alumari graduated with a PhD of Law from the University of Western Australia 2020.

Dr Mutasim Ahmad Alqudah is an Associate Professor of law and an Attorney at Law, previously was the General Counsel of the Hashemite University in Jordan (2012–2014) and the General Counsel of the United Arab Emirates University (2019–2020). Dr. Alqudah graduated with a PhD of Law from the University of Leicester-UK in 2009 and LLM in International Commercial Law from the University of Kent-UK 2004. Mutasim Ahmad Alqudah is the corresponding author and can be contacted at: [email protected]

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