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Islamic Contract Law – Does Agency Eliminate Risk in Murābaḥah?
1. What agency is supposed to do (in theory)
  • The customer acts as the bank’s agent to purchase the asset.
  • Once purchased:
    • Title passes to the bank
    • The bank becomes owner (even if briefly)
👉 In principle:
  • The bank should bear ownership risk during that period.


2. When agency DOES eliminate risk (problematic structure)
Agency becomes an issue when it’s combined with protections that leave the bank exposed to no real loss.
Common features:
  • Customer signs a binding promise to buy before the bank purchases
  • Bank buys only after being fully protected
  • Immediate back-to-back sale
  • Clauses shifting loss to customer
Example (problematic):
  • Customer (as agent) buys a car for the bank
  • Customer has already signed a binding undertaking to buy it
  • If the car is damaged or the deal fails:
    • Customer still must pay
👉 Result:
  • Bank’s ownership = purely technical
  • Risk = effectively zero
❌ This is what critics mean by “form without substance”


3. When agency does NOT eliminate risk (acceptable structure)
Agency can still be valid if real exposure remains with the bank.
Key conditions:
  • Customer’s promise is not absolutely binding (or limited)
  • There is a genuine gap between purchase and resale
  • Bank bears risk during ownership:
    • Damage
    • Price fluctuation
    • Customer default
Example (better structure):
  • Customer (agent) buys a house for the bank
  • Ownership passes to the bank
  • Before resale:
    • Customer decides not to proceed
👉 Result:
  • Bank must:
    • Find another buyer
    • Possibly sell at a loss
✅ Real market risk exists


4. The real issue: Legal vs Economic Risk
  • Legal position
    • Yes, the bank owns the asset
  • But Islamic law asks:
    • Did the bank face a real chance of loss?
👉 If NOT:
  • Then:
    • Profit becomes questionable


5. Core Principle
  • “Al-ghunm bil-ghurm”
    (Profit comes with risk)
👉 If agency structure removes:
  • Risk
    Then:
  • It undermines the justification for profit


Final Judgment (Balanced View)
  • ✔ Agency itself is not the problem
  • ❌ The problem is when agency is used to:
    • Eliminate all meaningful risk


One-Line Answer
  • Agency can eliminate risk if abused,
    but it is acceptable if the bank still bears real ownership risk in substance, not just on paper.







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Islamic Contract Law – Expanded Reasons Why Conventional Hire Purchase Is Not Shariah-Compliant


1. Combines Lease and Sale in One Contract
  • In conventional hire purchase:
    • The agreement is structured as one single contract that includes:
      • Use of the asset (lease)
      • Transfer of ownership (sale)
  • Why this is problematic:
    • Islamic law requires:
      • Each contract to be separate and independent
    • Combining them creates:
      • Uncertainty (gharar) about the nature of payments
  • Example:
    • Monthly instalments:
      • Are they rent?
      • Or part of purchase price?
    • The ambiguity makes the contract legally problematic in Shariah


2. Guarantees Ownership Transfer
  • In hire purchase:
    • Ownership automatically transfers at the end
    • No new agreement is required
  • Why this is problematic:
    • In Islamic law:
      • Ownership transfer must be:
        • A separate, conscious act
    • A sale cannot be:
      • Embedded or predetermined within a lease
  • Example:
    • “After 5 years, the car becomes yours automatically”
👉 This removes:
  • The independence of the sale contract


3. Resembles Interest-Based Financing (Ribā Concern)
  • Instalments are calculated to include:
    • Cost of financing
    • Fixed profit margin
  • Why this is problematic:
    • The transaction resembles:
      • Loan + interest, but disguised as rent
  • Example:
    • Customer pays RM1,000 monthly
    • Total payment far exceeds asset price
    • Extra amount reflects:
      • Time value of money (interest-like)
👉 Substance:
  • Similar to conventional lending


4. Lacks Real Ownership Risk for Financier
  • In conventional hire purchase:
    • Financier:
      • Retains legal title
    • BUT:
      • Does not bear real risk
  • Customer typically bears:
    • Maintenance
    • Damage
    • Insurance
    • Loss
  • Why this is problematic:
    • Islamic law requires:
      • Ownership risk must follow ownership
  • Example:
    • Car is damaged during contract
    • Customer still must pay
👉 Financier:
  • Earns profit
  • Without exposure to loss


5. Profit Not Linked to Real Risk
  • Financier earns:
    • Fixed and guaranteed return
  • Why this is problematic:
    • Islamic principle:
      • “Al-ghunm bil-ghurm” (profit comes with risk)
  • In hire purchase:
    • Profit is:
      • Pre-determined
      • Not affected by asset performance
  • Example:
    • Even if asset:
      • Loses value
      • Becomes unusable
👉 Financier still:
  • Receives full payment


Final Insight
  • The issue is not the concept of:
    • Leasing followed by ownership
  • The issue lies in:
    • Structure and economic reality


One-Line Understanding
  • Conventional hire purchase is non-compliant because:
    👉 “It removes risk, guarantees profit, and merges contracts in a way that mimics interest-based financing.”​
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​Islamic Contract Law – Relevance of Express & Implied Contracts in E-Commerce


1. Modern Context: Electronic Contracts
  • Today, many contracts are formed through:
    • Online platforms
    • Mobile apps
    • Digital transactions
  • Examples:
    • Buying items on Shopee/Lazada
    • Subscribing to online services
    • Booking flights or hotels
👉 These are electronic contracts


2. Continuous Formation of Contracts
  • In e-commerce:
    • Offers and acceptances happen constantly
  • Example:
    • Seller lists product → offer
    • Buyer clicks “Buy Now” → acceptance
👉 Millions of contracts are concluded every second


3. Validity in Islamic Contract Law
  • Modern Muslim jurists accept electronic contracts based on:
A. Principle of Permissibility
  • General rule:
    • All commercial transactions are permissible unless prohibited
👉 Since:
  • No clear prohibition against e-contracts
  • Therefore:
    • ✅ They are valid


B. Public Interest (Maṣlaḥah)
  • E-commerce provides:
    • Convenience
    • Speed
    • Global access
👉 Considered:
  • Beneficial to society
  • Therefore:
    • Supports validity of electronic contracts


4. Role of Express and Implied Contracts in E-Commerce
  • Express Contract
    • Clicking:
      • “I agree to terms and conditions”
    • Clear acceptance
 
  • Implied Contract
    • Conduct:
      • Adding items to cart and paying
    • No verbal agreement, but:
      • Intention is clear
👉 E-commerce heavily relies on:
  • Conduct-based (implied) contracts


5. Electronic Platform = Means, Not Substance
  • The internet is:
    • Just a tool (means to conclude contracts)
👉 Important:
  • It does NOT change:
    • Core principles of contract law


6. Application of Islamic Contract Principles
  • Even in e-commerce, contracts must:
    • Have consent
    • Avoid:
      • Ribā (interest)
      • Gharar (uncertainty)
    • Be lawful


7. Key Insight
  • Traditional forms (oral/written) are expanded to include:
    • Digital conduct and communication
👉 Islamic law adapts through:
  • Flexibility + general principles


Final Summary
  • Electronic contracts are:
    • Valid in Islamic law
  • Based on:
    • Permissibility principle
    • Public interest (maṣlaḥah)
  • Express & implied classification explains:
    • How online contracts are formed


One-Line Understanding
  • E-commerce contracts are valid in Islamic law because:
    “Digital actions = valid consent, as long as no prohibition exists.”



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​Islamic Contract Law – Murābaḥah and the Issue of Risk (Notes)


1. Basic Structure of Murābaḥah
  • A cost-plus sale contract
  • Steps:
    • Bank buys an asset
    • Bank sells it to customer at:
      • Cost + profit (markup)
    • Customer pays later (deferred payment)
👉 Key principle:
  • Must be a genuine sale, not a loan


2. Core Requirement: Bank Must Bear Risk
  • In Islamic law:
    • Profit is justified only if risk is borne
👉 Therefore:
  • Bank must:
    • Take ownership of the asset
    • Bear ownership risk (even if briefly)


3. Types of Risk the Bank Should Bear
  • Asset Risk
    • Damage or loss before sale
  • Ownership Risk
    • Liability as owner
  • Market Risk
    • Price fluctuation before resale
👉 These risks justify:
  • The bank’s profit (markup)


4. The Practical Problem (Modern Practice)
  • In many cases:
    • Bank tries to avoid all risk


How this happens
  • Asset is:
    • Never physically held by bank
  • Customer:
    • Acts as agent to buy asset
  • Ownership:
    • Exists only on paper
👉 Result:
  • Bank bears:
    • Little or no real risk


5. Why This is a Problem (Substance Issue)
  • If bank does NOT bear risk:
    • Profit becomes:
      • Unjustified in Islamic law
👉 Because:
  • It resembles:
    • Interest (riba)


6. Example (Clear Illustration)
  • Proper Murābaḥah
    • Bank buys a car
    • Car is damaged before sale
    • Bank bears loss
👉 Valid:
  • Risk → Profit justified
 
  • Problematic Murābaḥah
    • Customer selects car
    • Bank never truly owns it
    • Customer bears all risk
👉 Substance:
  • Looks like:
    • Loan with fixed return


7. Key Criticism
  • Critics argue:
    • Many murābaḥah transactions:
      • Only comply in form
      • Not in substance


8. Key Principle to Remember
  • Islamic law rule:
    • “Al-ghunm bil-ghurm”
    • (Profit comes with risk)
👉 No risk = questionable profit


Final Summary
  • Murābaḥah is valid only if:
    • Bank genuinely owns and bears risk
  • If risk is eliminated:
    • Contract may:
      • Become formally valid but substantively problematic


One-Line Understanding
  • No real risk → no real sale → possible riba in disguise










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Islamic Contract Law – Form vs Substance in Ijārah Muntahiya bi al-Tamlīk (Lease-to-Own)


1. Basic Structure of the Contract
  • Ijārah muntahiya bi al-tamlīk = lease that ends with ownership
  • Consists of two main phases:
    • Phase 1: Lease (ijārah)
      • Lessor rents asset to lessee
      • Lessee pays periodic rent
    • Phase 2: Transfer of ownership
      • Asset is transferred to lessee at the end


2. Supporting Mechanism (Waʿd – Promise)
  • The structure usually includes:
    • Promise by lessor:
      • To transfer ownership at end
    • Promise by lessee:
      • To acquire the asset


Methods of Ownership Transfer
  • Through:
    • Sale at nominal/token price
    • Sale at market value
    • Gift (hibah)
    • Gradual transfer via rental payments


3. Form-Based Analysis (Form over Substance)
  • Transaction is treated as:
    • Two separate contracts
      • Lease contract (ijārah)
      • Sale contract (bayʿ)
  • Each contract:
    • Has its own rules
  • In accounting/legal documentation:
    • Recognised as separate transactions
👉 Focus:
  • Legal structure and classification


4. Substance-Based Analysis (Substance over Form)
  • Entire arrangement seen as:
    • One single transaction
      • Rent-to-own (hire purchase–like structure)
👉 Economic reality:
  • Lessee is effectively:
    • Paying to own the asset over time


5. Core Debate
Form Approach
  • Emphasises:
    • Compliance with:
      • Classical contract structures
  • Keeps:
    • Lease and sale distinct


Substance Approach
  • Emphasises:
    • Economic reality and intention
  • Sees:
    • One integrated financing arrangement


6. Practical Tension
  • Form-based view
    • Ensures:
      • Technical Shariah compliance
    • But may ignore:
      • Real economic effect
 
  • Substance-based view
    • Reflects:
      • True nature of transaction
    • But may resemble:
      • Conventional hire-purchase system


7. Key Insight
  • The same transaction can be:
    • Two contracts (form)
    • OR
    • One contract (substance)
👉 This creates:
  • Ongoing debate in Islamic finance


Final Summary
  • Ijārah muntahiya bi al-tamlīk illustrates:
    • The tension between:
      • Legal form
      • Economic substance
  • Form approach:
    • Treats contracts separately
  • Substance approach:
    • Treats transaction as a unified whole


One-Line Understanding
  • Form = “lease + sale separately”
  • Substance = “one rent-to-

​
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​Islamic Contract Law – Primary Sources: Qurʾān and Sunnah 

1. Core Primary Sources
  • The primary sources of Islamic law are:
    • Qurʾān
    • Sunnah
👉 These form the foundation of all legal rulings (aḥkām), including contract law


2. The Qurʾān
Nature
  • Considered:
    • The word of Allah


Role in Contract Law
  • Provides:
    • General principles and guidelines


Examples
  • Obligation to:
    • Fulfil contracts
  • Prohibition of:
    • Ribā (interest)
    • Unjust consumption of wealth


👉 Key Feature:
  • Broad and principle-based
  • Not detailed rules


3. The Sunnah
Nature
  • Comprises:
    • Sayings
    • Actions
    • Approvals of Prophet Muhammad


Role in Contract Law
  • Provides:
    • Explanation and practical application of Qurʾānic principles


Examples
  • Clarifies:
    • Types of valid and invalid sales
  • Prohibits:
    • Gharar (uncertainty)
  • Regulates:
    • Fair dealings


4. Relationship Between Qurʾān and Sunnah
  • They are:
    • Complementary sources


Function Together
  • Qurʾān
    • Lays down:
      • General rules
  • Sunnah
    • Explains:
      • How to apply those rules


👉 Example:
  • Qurʾān:
    • Commands fulfilment of contracts
  • Sunnah:
    • Shows:
      • How contracts should be conducted fairly


5. Role During the Time of Prophet Muhammad
  • All legal rulings were derived from:
    • Qurʾān
    • Sunnah


How it worked
  • Qurʾān:
    • Revealed principles
  • Prophet:
    • Interpreted and applied them
    • Guided companions


👉 Covered areas such as:
  • Faith
  • Family law
  • Criminal law
  • Commercial law (including contracts)


6. Relevance for Future Generations
  • Principles were presented in:
    • Flexible and general form
👉 This allows:
  • Adaptation to:
    • Changing times and contexts


7. Key Insight
  • Islamic contract law is:
    • Rooted in:
      • Divine guidance
    • Applied through:
      • Practical interpretation


Final Summary
  • Qurʾān
    • Provides general legal principles
  • Sunnah
    • Provides explanation and application
  • Together:
    • Form a complete and complementary legal framework


One-Line Understanding
  • Qurʾān = principles
  • Sunnah = practical application of those principles










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Islamic Contract Law – Sources of Islamic Contract Law

1. Overview
  • Islamic contract law is derived from:
    • Primary sources
    • Secondary sources
    • Tertiary sources (modern development)
👉 These sources together:
  • Form the foundation and evolution of Islamic contract law


2. Primary Sources (Core Foundation)
A. Qurʾān
  • Main source of law
  • Provides:
    • General principles, not detailed rules


Examples
  • Obligation to:
    • Fulfil contracts
  • Prohibition of:
    • Ribā (interest)
    • Unjust enrichment


B. Sunnah (Prophetic Traditions)
  • Explains and supplements the Qurʾān
  • Provides:
    • Practical applications


Examples
  • Prohibition of:
    • Uncertainty (gharar)
  • Rules on:
    • Sale, fairness, and honesty


3. Key Feature of Primary Sources
  • Provide:
    • General principles
👉 Not:
  • Detailed contract rules


Implication
  • Allows:
    • Flexibility
    • Adaptation to:
      • Modern transactions


4. Role of Muslim Jurists
  • After the Prophet’s time:
    • Scholars developed:
      • Detailed contract rules
👉 Based on:
  • Qurʾān
  • Sunnah


Result
  • Development of:
    • Contract types
    • Conditions
    • Legal doctrines


5. Secondary Sources (Development Tools)
  • Used to:
    • Interpret and expand primary sources


Examples of Secondary Sources
  • Ijmāʿ (Consensus)
    • Agreement of scholars


  • Qiyās (Analogical reasoning)
    • Applying rules to new situations


  • ʿUrf (Custom)
    • Accepted practices in society


👉 These help:
  • Adapt law to:
    • New commercial realities


6. Tertiary Sources (Modern Perspective)
  • Includes:
    • Positive laws and regulations


Meaning
  • Laws enacted by:
    • Governments
    • Courts


👉 Condition:
  • Must NOT:
    • Contradict Islamic principles


Example
  • Modern banking regulations
  • Contract laws in countries


7. Relationship Between Sources
  • Primary sources
    • Provide:
      • Core principles


  • Secondary sources
    • Provide:
      • Interpretation and expansion


  • Tertiary sources
    • Provide:
      • Practical implementation in modern context


8. Key Insight (Very Important)
  • Islamic contract law is:
    • Flexible and adaptable
👉 Because:
  • Primary sources are:
    • Principle-based, not rigid


Final Summary
  • Islamic contract law is derived from:
    • Qurʾān and Sunnah (primary)
    • Juristic tools like ijmāʿ, qiyās, ʿurf (secondary)
    • Modern legal systems (tertiary, if compliant)


One-Line Understanding
  • Islamic contract law =
    👉 “Divine principles applied through juristic reasoning and adapted to modern practice.”

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​KembaraXtra-Case Law -Reardon (1999) CA
This study guide summarizes the key facts, legal principles, and court's decision in the case of Reardon (1999) CA. It is designed to help you understand and recall the important aspects of this case for academic purposes.

Case Name: Reardon (1999) CA
Area of Law: Criminal Law – Joint Enterprise / Complicity / Secondary Liability

I. Factual Background
  • Setting: Defendant (D) was in a bar with others, including M.
  • Initial Incident: M shot two individuals.
    • Victim 1 (V1) died instantly.
    • Victim 2 (V2) did not die instantly.
  • Subsequent Events:
    • Bodies were dragged outside.
    • M discovered V2 was still alive.
    • M requested a knife from D.
    • D provided the knife to M.
    • M then went outside and fatally stabbed V2.
II. Charges & Initial Verdict
  • Charges: D was charged with the murder of both V1 and V2.
  • Jury Direction: The jury was instructed that D would be responsible for the consequences if he handed over the knife:
    • Realizing OR
    • Contemplating
    • That M would kill or cause really serious injury.
  • Verdict: D was convicted of both murders.
III. Grounds for Appeal
  • D's Argument: D appealed the conviction, claiming that M's actions with the knife were:
    • Outside his (D's) contemplation.
    • Therefore, not part of any common purpose between D and M.
IV. Court of Appeal's Decision (Held)
  • Key Legal Test Applied: The test for D's responsibility was whether, when D handed over the knife to M, he could reasonably foresee acts of the type that M did in fact carry out.
  • Application to Facts:
    • The Court found it clear that the fatal stabbing of at least V2 was contemplated by D when he handed over the knife.
    • D must have realized that if V1 was found still breathing, M would have fatally stabbed him too (implying a general intent by M to ensure death).
  • Conclusion: M's act of fatally stabbing V2 was an act foreseen by D, even if D did not specifically intend the knife to be used in that exact manner.
V. Key Takeaways & Principles for Study
  • Foreseeability in Joint Enterprise: This case highlights the importance of foreseeability in determining secondary liability (joint enterprise). A secondary party (D) can be liable for actions carried out by the primary offender (M) if those actions were reasonably foreseeable by the secondary party.
  • "Acts of the type": The test focuses on whether acts "of the type" carried out were foreseeable, not necessarily the precise method or timing.
  • Contemplation vs. Intention: D does not need to intend the specific fatal act to occur, but merely to contemplate or foresee that such an act (like fatal stabbing) might occur given the circumstances and M's known disposition.
  • Scope of Common Purpose: Even if M's actions went beyond D's exact wishes, if they were within the reasonably foreseeable scope of their common criminal purpose (e.g., ensuring victims were dead), D can still be held liable.
  • Causation and Responsibility: D's action of providing the weapon, coupled with the foreseeability of its use for lethal force, established his responsibility for M's subsequent actions.​
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KembaraXtra- Case Law -Uddin (1999) CA: Joint Enterprise Liability for Murder
Case Summary:
  • Facts: A victim (V) was attacked by a group of youths (initially four, then six). Some youths used billiard cues as weapons. V died three days later from injuries, including a fatal stab wound near the base of the skull. D, one of the youths, was convicted of murder.
  • Appeal Basis: D appealed, arguing he did not foresee the use of a knife during the joint enterprise.
Legal Principle (Held by the Court of Appeal):
This case clarifies the liability of participants in a joint enterprise where a fatal injury occurs.
  1. General Rule for Joint Liability for Murder:
    • If multiple individuals participate in an attack with the intent to inflict serious harm, and this attack results in the victim's death, all participants are jointly liable for murder.
  2. Exception to Joint Liability (Sole Actor and Unforeseen Action):
    • If the fatal injury, intended to cause serious harm, was solely caused by the actions of one participant, AND
    • These actions were of a type entirely different from actions the others foresaw as part of the attack, THEN
    • Only that sole participant is guilty of murder. The others are not.
  3. Key Factor: Use of a Weapon and its Character:
    • To determine if actions are "of such a different type," the use of a weapon by the sole actor is a significant factor.
    • Scenario A: Unforeseen Weapon:
      • If the character (propensity to cause death) of the weapon used by the sole actor is different from any weapon used or contemplated by the other participants, AND
      • It was used with a specific intent to kill, THEN
      • The other participants are not responsible for the death, UNLESS it is proven that they foresaw the likelihood of such a weapon being used.
    • Scenario B: Similar Propensity Weapon:
      • If other participants in the joint enterprise were using a weapon that could be regarded as equally likely to inflict a fatal injury (even if a different specific weapon was used by the sole actor), then the mere fact that a different weapon was used is immaterial for establishing their liability.
Key Takeaways for Study:
  • Intent to Cause Serious Harm: This is a crucial element for establishing joint liability for murder in a joint enterprise.
  • Foresight: The concept of "foresight" is central to determining whether participants are liable for an unforeseen act by another. It's not about foreseeing the exact mechanism of death, but the likelihood of the type of action/weapon used.
  • "Entirely Different" Action: This phrase implies a significant departure from the common plan or understanding of the joint enterprise. The nature and lethality of the weapon are key indicators.
  • Propensity to Cause Death: The court emphasizes the character of the weapon – its inherent danger and likelihood of causing death – rather than just its specific type.
  • Burden of Proof: Note the phrase "unless it is proved that they foresaw the likelihood." This indicates where the burden of proof lies regarding foresight.

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KembaraXtra-Case Law-Powell and English (1997) HL: Joint Enterprise Liability in Murder
I. Case Summaries & Key Facts:
  • Powell, A, B, C:
    • A, B, and C went to purchase drugs from V.
    • V was shot dead.
    • The Crown could not prove who fired the gun.
    • All three knew Powell was armed.
    • Held: A and B were found guilty of murder.
  • English, D, E:
    • D and E were assaulting a police officer with a wooden post.
    • E (English) stabbed and killed the officer.
    • Held: D was found not guilty of murder.
II. Core Legal Principles (Per Lord Hutton):
  1. Joint Enterprise Liability:
    • When two parties engage in a joint enterprise to commit a crime, and one party (the secondary party) foresees that, in the course of the enterprise, the other party (the primary party) may commit another crime with the requisite mens rea, the secondary party is liable for that other crime if committed by the primary party during the enterprise.
  2. Mens Rea for Murder in Joint Enterprise:
    • For a secondary party to be convicted of murder, it is sufficient that they realized the primary party might kill with intent to do so OR with intent to cause grievous bodily harm during the joint enterprise.
  3. Unforeseen Acts:
    • If the jury believes the primary party's act (e.g., E's use of a knife) was not foreseen by the secondary party (e.g., D), then the secondary party is not guilty of murder.
    • Crucially, an unforeseen act takes the killing outside the scope of the joint venture. In such cases, the jury should also be directed that the secondary party should not be found guilty of manslaughter either.
III. Dissenting Opinion/Call for Reform (Per Lord Steyn, Lord Mustill concurring):
  • Lord Steyn suggested that Parliament should reform the law of murder.
  • He proposed that a killing should be classified as murder if there is:
    • An intention to kill, OR
    • An intention to cause really serious bodily harm,
    • Combined with an awareness of the risk of death.
IV. Study Notes & Key Takeaways:
  • Distinguish between the two cases: Powell illustrates a scenario where secondary parties were found guilty (foreseeability of being armed and potential for fatal force was likely inferred). English highlights the exception where an unforeseen act by the primary party negates liability for the secondary party.
  • Focus on the "foreseeability" element: This is central to joint enterprise liability for murder. It's not about certainty, but about the realization that the act "might" occur.
  • Mens Rea for Murder: Remember the two limbs: intent to kill OR intent to cause grievous bodily harm. The secondary party must have foreseen the possibility of one of these occurring.
  • Scope of Joint Enterprise: An unforeseen and fundamentally different act by the primary party takes the killing outside the scope of the original joint venture, absolving the secondary party of liability for murder and manslaughter.
  • Lord Steyn's point is a reform proposal, not current law: While important for critical analysis, understand that his suggestion about "awareness of the risk of death" was a call for legislative change, not a statement of the existing legal standard at the time of the judgment. The existing law focuses on foresight of intent to kill or cause GBH.
  • Application: When analyzing scenarios, ask:
    1. Was there a joint enterprise?
    2. What was the original crime intended?
    3. Did the secondary party foresee that the primary party might commit murder (with intent to kill or cause GBH) during that enterprise?
    4. Was the fatal act within the scope of what was foreseen, or was it a fundamentally unforeseen act?








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