Online Financial Dealings - Appendix B (The Shariah Basis for the Standard)

Transcription

1. Shari ’ah Standard No. (38): Online Financial Dealings Appendix (B) The Shari’ah Basis for the Standard ■ The basis for permissibility of launching commercial websites if such sites are free from impermissible practices is the fact that in principle, transactions in any form are allowed, unless they lead to commitment of an impermissible act. Moreover, launching of such sites serves the interests of a large number of people in this era, and thus, conforms to the underlying mission of Shari’ah. ■ Permissibility of concluding online financial contracts is due to the fact that such contracts do not involve any impermissible aspect. They carry no difference from traditional contracts except in that the means used for their conclusion is different. If, in principle, contracts as such are allowed as long as they observe the rules of transactions in Shari’ah, it is only natural that the means whereby these contracts are concluded become allowed as long as they conform to permissible rules of contracting. ■ Concluding online contracts through audio or audiovisual communication between the two parties is classified under the category of contracts concluded in the presence of the two parties, because in such online contracts both parties are in fact present at the same time, although not in the same place. Therefore, simultaneous presence of the two parties in terms of time, which constitutes the prerequisite meant by coincidence of presence,(2) is fulfilled at the time of exchanging offer and acceptance. In this connection the International Islamic Fiqh Academy issued a resolution about the Shari’ah ruling on concluding contracts through the modern means of communication. The text of the resolution is as follows: “If any two parties enter into a contract at the same time while they are in different places – this includes contracting through (2) See: “Fath Al-Qadir” [3: 190–192]; “Hashiyat Al-Dusuqi ’Ala Al-Sharh Al-Kabir” [3: 5]; “Mughni Al-Muhtaj” [2: 5]; “Al-Mughni” [3: 481]; and see “Al-Madkhal Al-Fiqhi Al-’Am” [1: 348]. 958
2. Shari ’ah Standard No. (38): Online Financial Dealings telephone and wireless devices – contracting between these two parties is considered as contracting between two present parties”.(3) Needless to say, there is no difference between contracting through a telephone call, and contracting through online voice communication. ■ When the contract is concluded through written communication, by e-mail, or through access to site, it shall be classified as a contract signed in the absence of the two parties. This ruling is based on the fact that exchange of offer and acceptance in this case takes place without simultaneous presence of the two parties. In this regard the Al Baraka Seminar on Islamic Economics issued a resolution stating that “According to Shari’ah, when an online contract is signed between two parties who are not in the same place, it is considered as a contract between two absent parties if neither of the two parties can hear the voice of the other. Consequently such contract should become subject to the Shari’ah rulings on message contracting”.(4) ■ The ruling that the offering party does not have the right to retreat from his offer within the period specified by the seller for validity of the offer is based on the viewpoint of some Maliki scholars who believe that if an offer is announced to be valid for a specific period it should remain valid throughout that period. This viewpoint has been emphasized by AlHattab quoting Abu Bakar Al-Arabi.(5) In this regard also The International Islamic Fiqh Academy issued a resolution emphasizing the following: “When the offering party issues a term-offer through these devices, he is committed to keep his offer during the specified period. He does not have the right to retreat from it.”(6) ■ When the offering party sends the electronic message through website or e-mail without indicating all the rights and commitments relating to the contract in question, or when he stipulates a condition that he should have the right of withdrawal even if the message is accepted, the (3) Resolution No. 52 (3/6). (4) The 19th Al Baraka Seminar on Islamic Economics, held in Makkah Al-Mukarramah, on 6–7 Ramadan 1420 A.H., corresponding to 2-3 December 2000 A.D. (5) See: “Mawahib Al-Jalil” by Al-Hattab [4: 241]. This viewpoint has been adopted by a number of civil laws, and is known as “Term Offer”. See article (98) of the Jordanian Civil Law and article (93) of the Syrian Civil Law. (6) Resolution No. 52 (3/6). 959
3. Shari ’ah Standard No. (38): Online Financial Dealings message is not considered as an offer, because from a Shari’ah point of view an offer should be categorically obvious and cannot bear any other meaning.(7) ■ The ruling that irrespective of the method of contracting an online contract is considered to be valid since the time when the other party accepts the offer and whether the offering party has come to know that or not, is based on the fact that Shari’ah scholars define contract as “the concordance of two wills”. Therefore as soon as the accepting party declares his consent concordance between the two wills takes place and the contract becomes valid.(8) A resolution issued in this regard by the International Islamic Fiqh Academy states: “When a contract is to be signed, through a written message or a messenger, between two absent parties who are not in the same place and neither of them can see or hear the other - a case which includes contracting through telex, fax and PC screens - the validity of such contract starts as soon as the concerned party receives and accepts the offer”.(9) ■ The ruling that possession in the strict Shari’ah sense takes place when the purchaser, after signing the contract, downloads the computer software or the data or any other good of this type from the website to his pc, is based on the fact that possession takes place actually and constructively when the sold object is released and disposition is facilitated for the buyer. Possession of objects differs according to the type of the object in question and how its possession is normally perceived. In this respect a resolution has been issued by the International Islamic Fiqh Academy regarding possession and its forms, especially the recent ones.(10) ■ Prohibition of trespassing commercial websites and data theft is derived from prohibition of all forms of encroaching upon rights of others because Allah, the Almighty, says: {“…but transgress not the limits. Truly, Allah likes not the transgressors.”}. } (11) Moreover, websites have financial worth, and are considered as private rights of their owners. Trespassing of such (7) See: “Fath Al-Qadir” [3: 190-92]; “Hashiyat Al-Dusuqi ’Ala Al-Sharh Al-Kabir” [3: 5]; “Mughni Al-Muhtaj” [2: 5]; and “Al-Mughni” [3: 481]. (8) See: “Bada`i’ Al-Sana`i’” [6: 2994] and “Hashiyat Ibn ’Abidin” [7: 26]. (9) Resolution No. 52 (3/6). (10) Resolution No. 53 (4/6). (11) [Al-Baqarah (The Cow):190]. 960
4. Shari ’ah Standard No. (38): Online Financial Dealings sites may result in financial harm for their owners. In this regard the International Islamic Fiqh Academy issued a resolution emphasizing prohibition of transgression against trade name, trade address, trademark and all other similar rights.(12) ■ Acceptability of adopting the electronic signature as a means of verifying the identities of dealers if such means is recognizable by the prevailing rules and regulations is based on the need to avoid the harm that could arise from online forgery in the dealers’ identities. In addition to that, adopting electronic signature does not constitute an impermissible practice. In fact Shari’ah encourages the use of technological means to preserve peoples’ wealth, because preservation of wealth constitutes one of the main five aims ((Maqasid Maqasid)) of Shari’ah. ■ The ruling that when forgery or an error is committed with regard to the personality or characteristics of one of the two parties, the other party has the right to terminate the contract is based on the fact that such an incident can influence the consent of the deceived party. According to Shari’ah the consent of the two parties is the fundamental prerequisite of contracting. This fact has been emphasized by the majority of Shari’ah scholars.(13) ■ The ruling that the state has to assume control upon online adhesion contracts - which are characterized with launching of public offers, uniform details, imposed terms and conditions, provision of indispensible commodities or usufructs and monopoly of supply - is based on the general texts of Shari’ah which instruct people to avoid harm and achieve justice. ■ If a contract is concluded on the basis of describing the object sold, or depending on the fact that the buyer has previously seen the object, or on presentation of a model resembling the object; whereas at the time of delivery the sold object is found to be different, the buyer should have the option of terminating the contract for false description. This ruling is based on the need for preservation of the rights of the two parties of the contract, as has been emphasized by the majority of Fiqh scholars. (12) Resolution No. (5), 5th Session 1408 A.H. – 1988 A.D. (13) See: “Al-Mawsu’ah Al-Fiqhiyyah”, Al-Fiqhiyyah”, the term Rida Rida,, Vol. (22). 961