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Islamic Contract Law – Express vs Implied Contracts (Comparison with English & Malaysian Law)


1. Recognition of Contracts
  • Islamic Contract Law
    • Recognises:
      • Express contracts
      • Implied contracts (by conduct and custom – ʿurf)


  • English Law
    • Recognises:
      • Express contracts
      • Implied contracts (by conduct, facts, or law)


  • Malaysian Law
    • Based on Contracts Act 1950
    • Also recognises:
      • Express contracts
      • Implied contracts (similar to English law)


2. Express Contracts
Definition
  • Terms are clearly stated


Examples (All Systems)
  • Oral:
    • “I sell you this for RM500”
  • Written:
    • Signing a lease agreement


Key Point
  • All three systems:
    • ✅ Fully recognise express contracts


3. Implied Contracts
Islamic Contract Law
  • Based on:
    • Conduct (actions)
    • Custom (ʿurf)
  • Example:
    • Taking goods in a shop → paying at counter


English Law
  • Implied through:
    • Conduct
    • Circumstances
    • Court implication
  • Example:
    • Boarding a bus → obligation to pay fare


Malaysian Law
  • Follows English law approach
  • Implied from:
    • Conduct and surrounding facts


4. Formation (Offer & Acceptance)
  • Islamic Contract Law
    • Can be:
      • Oral
      • Written
      • By conduct


  • English Law
    • Same:
      • Offer + acceptance may be implied


  • Malaysian Law
    • Same principle applies


5. Key Requirement for Validity
  • Islamic Contract Law
    • Requires:
      • Legal capacity (ahliyyah)
      • Consent


  • English Law
    • Requires:
      • Capacity
      • Consideration
      • Intention


  • Malaysian Law
    • Requires:
      • Capacity
      • Consideration
      • Intention


6. Role of Custom (Important Difference)
  • Islamic Contract Law
    • Custom (ʿurf) plays a major role
    • Can determine:
      • Terms of contract


  • English Law
    • Custom plays:
      • Limited role


  • Malaysian Law
    • Custom recognised but:
      • Less central than Islamic law


7. Freedom of Contract
  • Islamic Contract Law
    • Allows freedom:
      • BUT limited by Shariah


  • English Law
    • Strong freedom of contract


  • Malaysian Law
    • Similar to English law


Final Summary
  • All three systems recognise:
    • Express contracts
    • Implied contracts
  • Key differences:
    • Islamic law emphasises:
      • Custom (ʿurf) and moral framework
    • English & Malaysian law emphasise:
      • Consideration and legal structure


One-Line Comparison
  • Islamic law = flexible (words, conduct, custom)
  • English & Malaysian law = similar structure, but more legal-technical





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