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Islamic Contract Law – Express and Implied Contracts (Notes with Examples)


1. Recognition in Islamic Law
  • Islamic law recognises:
    • Express contracts
    • Implied contracts
  • Similar to:
    • Common law (contracts by conduct also recognised)


2. Express Contract (ʿAqd Ṣarīḥ)
Meaning
  • A contract where:
    • Terms are clearly stated
  • Can be made:
    • Orally
    • In writing


Examples
  • Oral:
    • A says: “I sell you this phone for RM500”
    • B says: “I accept”
  • Written:
    • Signing a tenancy agreement
    • Written sale contract
👉 Clear offer + acceptance = express contract


3. Implied Contract (ʿAqd Ḍimnī)
Meaning
  • A contract formed through:
    • Conduct (actions)
    • Customary practice (ʿurf)
  • No explicit words needed


Examples
  • By Conduct
    • Taking goods from a shop and paying at the counter
    • Boarding a bus and paying fare
👉 No words spoken, but agreement is understood


  • By Custom (ʿUrf)
    • Hiring a taxi:
      • Fare is understood based on normal practice
    • Restaurant service:
      • Customer eats → expected to pay
👉 Based on social/customary understanding


4. Forms of Offer and Acceptance in Islamic Law
  • Can be expressed through:
    • Oral communication
    • Written agreement
    • Conduct/actions
👉 All are valid as long as:
  • Consent is present


5. Key Requirement for Valid Contract
  • Legal Capacity (Ahliyyah)
    • Parties must:
      • Be legally competent
      • Understand the transaction


Examples
  • Valid:
    • Adult entering a sale contract
  • Invalid:
    • Minor without capacity entering a complex contract


6. Principle of Freedom of Contract
  • Islamic law recognises:
    • Party autonomy
  • Parties are free to:
    • Enter contracts
    • Choose terms
👉 BUT:
  • Subject to:
    • Shariah limitations (no riba, no gharar, etc.)


7. Key Insight
  • Islamic contract law is:
    • Flexible in form (oral, written, conduct)
  • But strict on:
    • Consent and capacity


Final Summary
  • Express contract
    • Clear terms (oral or written)
  • Implied contract
    • Based on conduct or custom
  • Both are valid if:
    • Parties have legal capacity
    • There is consent


One-Line Understanding
  • Islamic law recognises contracts:
    • “By words, by writing, or by actions—so long as parties understand and consent.”




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