Contract and Aqd, are they functionally different?

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.

Citation

Al-Umari, M.R. and Alqudah, M.A. (2024), "Contract and Aqd, are they functionally different?", International Journal of Law and Management, Vol. 66 No. 1, pp. 11-22. https://doi.org/10.1108/IJLMA-03-2023-0040