عقود الإذعان في الفقه الإسلامي والقانون الماليزي : دراسة تحليلية نقدية مقارنة

Abstract

Nowadays, life is a constant evolution that encounters new conditions and orders. The economic field is also witnessing the arrival of new forms and types of contracts, and among the new ones is adhesion contract, a type of contract that is favourable to merely one party of the contract while the other party is restricted in making any bargains and altering any terms and conditions of the contract. Obviously, the nature of such contract is questionable, due to its difference from other types of contracts that are based on equality and free discussion. The objective of the research is to identify the position of the contract in Islamic Law by addressing the opinions of Islamic jurists. The research also identifies the original ruling of the contract that is based on modern law and analyzes the methods applied by modern law in protecting the unfavourred parties. The methodology of the research is a library research which gathered primary data from authentic sources and analyzed them in order to get the preferred opinions of the Islamic jurists and the nature of the contract that based in Malaysian law. The study discovers that the contract of adhesion is a new form and type of contract that is different from other contracts mentioned by scholars. Generally, adhesion contract is permissible in Islamic jurisprudence as a new contract, but it depends on whether the pillars and conditions of the contract in compliant with Islamic jurisprudence or not. This research discovers that the adhesion contract has two basic concepts, one with a narrow meaning and another with a broad meaning. The research identifies that the scope of the contract has to be widened in accordance with the progress of economic activities that involves various business entities, whether in the public or private sector. Based on the original principe of a contract, it is permissible, provided it is in compliant with the pillars and conditions of a normal contract and free from any elements of defects that cause the contract invalid and void. Even though the adhesion contract is based on modern law, it must fulfill the requirements of Islamic Jurisprudence based on equality and avoidance of oppression. In Malaysia, before 2010 there was no specific law or provision in any acts on contract, as the law in Malaysia consider a contract must be equivalent to the contract based on free willingness. However, in 2010, the government amended the Law of Consumer Protection Act 1999 by inserting the matter of unfair contract terms in the standard contract. However, this research views that it is important to review all of the provisions of contracts in the Law Of Contract Act 1950.