Online Financial Dealings - Scope of the Standard

Transcription

1. Shari ’ah Standard No. (38): Online Financial Dealings Statement of the Standard 1. Scope of the Standard This standard covers the Shari’ah rulings relating to conclusion of financial contracts online, either by launching commercial websites, or by provision of online access services. The standard aims to indicate the various aspects pertaining to this subject such as the Shari’ah status of the contracts concluded in this manner, determination of the time of contract inception, permissible procedures of possession after signing the contract, and Shari’ah rulings relating to protection of online financial dealings. 2. Launching Commercial Websites for Contractual Dealings 2/1 It is permissible in Shari’ah to launch commercial websites, provided that such sites do not involve any impermissible act, such as promotion of impermissible goods and services, or using impermissible means to promote pemissible goods and services. 2/2 It is permissible in Shari’ah to conclude online contracts, provided that the contracts thus concluded between the institution and its clients observe the general rules of financial transactions as prescribed by the Shari’ah, regarding for instance, opening of the accounts, performing remittances and signing commercial contracts. 3. Provision of Online Access Services 3/1 Shari’ah permits institutions to provide online access services to users on the basis of subscription contracts or any other similar arrangement, and against a specific fee. 3/2 The contract for provision of online access service by the institution is a shared-hiring contract “Ijarah “Ijarah Mushtarakah” Mushtarakah” signed between the institution and the beneficiary. Therefore, it should become subject to the conditions and rulings of the contract for hiring of persons in general, and those of the contract for hiring of a shared employee in 948
2. Shari ’ah Standard No. (38): Online Financial Dealings particular. [see Shari’ah Standard No. (34) on Hiring of Persons and Shari’ah Standard No. (9) on Ijarah and Ijarah Muntahia Bittamleek] 3/3 The institution which provides such service should take all necessary precautions and measures to prevent impermissible use of the internet by the beneficiaries to whom the Institution provides the access service. 4. Contract Signing Session (Majlis (Majlis al-’Aqd al-’Aqd)) for Concluding Online Financial Contracts 4/1 When the contract is concluded through audio or audiovisual communication between the two parties, it should become subject to the same Shari’ah rulings on contracts signed in the presence of the two parties. Consequently it should satisfy the rulings relating to this type of contracts which include, for instance: simultaneous presence of the two parties (Itihad (Itihad al-Majlis al-Majlis), ), non-existence of any indication of disinterest from any of the two parties, succession of offer and acceptance (as per normal practice), and all the other rulings. 4/1/1 The contract signing session in this case is the time of communication between the two parties if the conversation relates to the contract. If the conversation is over or disconnected, or the two parties shifted to another subject, the contract signing session is considered to have stopped (unless disconnection of the conversation is for a reasonably short while). 4/2 When the contract is concluded through written communication, by e-mail, or through access to site, it shall become subject to the rulings applicable to contracts signed in the absence of the two parties, because such deal is similar to message contracting. 4/2/1 The contract signing session in the case indicated in item 4/2 above starts from the moment of communicating the offer to the concerned party up to issuance of acceptance. The contract signing session may also be discontinued when the offering party retreats from his offer before an acceptance decision is made by the other party. 949
3. Shari ’ah Standard No. (38): Online Financial Dealings 4/2/2 When the offering party specifies a certain period for validity of his offer, the time allowed for acceptance should cover the whole period. The offering party has no right to withdraw from his offer during that period. 4/3 When the contract is concluded through online bidding the highest bidder should not retreat from his bid until the bidding process is over. The highest bidder should also not retreat from his offer after finalization of the bidding process if the seller had made a condition that the offer should remain binding for a certain period, or if the normal practice necessitates validity of the offer for such period. 5. Expressing Offer and Acceptance in Online Financial Contracts 5/1 Expression of offer and acceptance in online contracts can be in any form that indicates the consent of the two parties to conclude the contract. 5/2 When the offering party sends through website or e-mail a message containing all the rights and commitments pertaining to the contract in question without retaining the right of withdrawal if the message is accepted, that message is considered as an offer. 5/3 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 message is considered to be an announcement or an invitation for contracting rather than an offer. In this case a process of offer and acceptance has to be done. 5/4 When the contract is concluded through website, clicking on the acceptance icon is considered as acceptance in the strict Shari’ah sense if the system in the website does not require confirmation of acceptance. If the system in the website requires confirmation of acceptance in any way, acceptance does not take place without making such confirmation. 950
4. Shari ’ah Standard No. (38): Online Financial Dealings 5/4/1 The Institution which provides its services on website should include in the system a step for acceptance confirmation as a precautionary measure against dealers’ mistakes. 6. Time of Commencement of an Online Contract 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. 7. Possession (Qabd) in Online Financial Contracts 7/1 Regarding online contracts, possession in the strict Shari’ah sense takes place through all accepted methods of actual and constructive possession. [see Shari’ah Standard No. (18) on Possession (Qabd), items 3 and 5] 7/2 If the sold commodity is computer software or the like, possession in the strict Shari’ah sense takes place when the purchaser, after signing the contract, downloads the software or the data or any good of this type from the website to his personal computer. 7/3 When the sold commodity is a currency, gold, silver or any other commodity in which instant exchange (Taqabud) is required, instant exchange of the two objects of the contract should be ascertained during the contract’s signing session. 8. Protection of Online Financial Dealings 8/1 Protection of commercial sites and dealers data against being trespassed 8/1/1 Commercial websites are considered as private properties of their owners, and therefore their trespassing could necessitate compensation. 8/1/2 The institution should use all possible measures of website protection, so as to safeguard its own rights as well as the rights of its clients. 8/1/3 Trespassing of dealers’ online data is impermissible. It is strictly prohibited to sell such data or transmit it to others without the permission of its owners. 951
5. Shari ’ah Standard No. (38): Online Financial Dealings 8/1/4 Verification of trespassing of commercial sites and data stealing should be done by referring to the prevailing traditions and regulating rules which do not encounter the rules and principles of Shari’ah. 8/1/5 The compensation due in case of trespassing should comprise direct financial loss as well as actual loss of earnings. Expert advice for assessment of compensation can also be sought when need arises. 8/1/6 Compensation shall become due only when it is claimed, whereas claiming compensation does not have a specific time limit after the incident of trespassing is known. In this regard relevant rules and regulations should be observed provided that they do not contradict with the rules and principles of Shari’ah. 8/1/7 In case of stealing money or confidential data from a protected website the responsibility should rest with the person who committed the theft directly. If it is not possible, for a permissible reason, to charge the person who committed the act of theft directly, the responsibility should rest with the one who facilitated the act. The owner of the site is by no means chargeable for such act, if he has taken all possible measures to protect his site, and unless he has pledged to shoulder such responsibility under all circumstances. 8/2 Verification of dealers’ identities 8/2/1 In order to safeguard its own interests, the Institution should take all possible precautions and measures to verify the identities of its website dealers, and make sure that they are legally competent for concluding valid contracts. 8/2/2 It is acceptable in Shari’ah to adopt the electronic signature as a means of verifying the identities of dealers, provided that such means is adoptable by virtue of the prevailing rules and regulations. 952
6. Shari ’ah Standard No. (38): Online Financial Dealings 8/2/3 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. 8/2/4 For verification of forgery or error recourse should be to the general rules of evidence. 8/3 Protection of dealers from adhesion contracts ((’Uqud ’Uqud al-Iz’an al-Iz’an) 8/3/1 It can be noticed that in a big part of the online contracts the offer is addressed to the public in general and the contract has uniform details. In such contracts also the offering party alone has the right of stipulating the terms and conditions of the contract, while the other party does not have the right to change such terms and conditions. A contract of this type is considered as an “adhesion contract” when it relates to a commodity or usufruct that nobody can do without, and the offering party assumes actual and legal monopoly or face only meager degree of competition in its supplying. 8/3/2 According to Shari’ah, online adhesion contracts should be subject to state control so as to protect dealers by endorsement of what is equitable and elimination of what is inequitable in these contracts, before launching them to dealers. 8/3/3 If the price in the online adhesion contract is fair, and the terms and conditions of the contract do not entail any injustice for the adhering party, the contract is considered to be permissible and binding to its two parties. 8/3/4 If the price in the online adhesion contract is unfair (comprises excessive injustice), or the contract includes an unjust condition for the adhering party, the latter has the right to resort to law for nullification of the contract or amending its conditions for the sake of relieving him from the consequent injustice. 8/4 If the online contract is concluded on the basis of describing the sold object, or depending on the fact that the buyer has previously seen the object, or on presentation of a model resembling the object, 953
7. Shari ’ah Standard No. (38): Online Financial Dealings whereas at the time of delivery the sold object is found to be different, the buyer should have the choice between concluding the contract, terminating it, or negotiating with the seller appropriate means of settlement. 9. Date of Issuance of the Standard This Standard was issued 17 Rabi’ I, 1430 A.H., corresponding to 15 March 2009 A.D. 954