An analysis of Consensus Ad Idem: The Malaysian Contract Law and Shari’ah Perspective

Nik Mahmod, Nik Ahmad Kamal and Abdul Ghani Azmi, Ida Madieha and Engku Ali, Engku Rabiah Adawiah and Wan Ismail, Wan Abdul Fattah and Daud, Mahyuddin and Mohd. Napiah, Mohammad Deen (2017) An analysis of Consensus Ad Idem: The Malaysian Contract Law and Shari’ah Perspective. Pertanika Journal of Social Science and Humanities, 25 (S) (October). pp. 73-84. ISSN 0128-7702 E-ISSN 2231-8534

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Abstract

Consensus ad idem (meeting of the mind), is a common law doctrine that requires all parties to the contract to understand and accept the commitments and terms outlined in the agreement. Under the Contracts Act 1950 coercion, undue influence, fraud, misrepresentation and mistake vitiate consent. Equally, under the Shariah, consent or redha constitutes the primary element of a contract. A contract entered into without the consent of contracting parties is either void or can be invalidated; depending on the extent of which such consent is vitiated. This paper discusses factors that vitiate consent under the Contract Act 1950 and compare them with the Shari’ah principles. The objective of this article is to identify whether there is a divergence regarding the understanding of the concept of consensus ad-idem under the Malaysian law and the Shari’ah with the intention of identifying the degree of harmony between the two. Analysis was based on secondary data, namely contract law doctrines, statues and comparing different schools of thoughts in defining Shari’ah principles related to this issue.

Item Type:	Article (Journal)
Additional Information:	417/64047
Uncontrolled Keywords:	Consensus Ad idem, Contracts Act 1975, redha, shariah
Subjects:	K Law > K Law (General)
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button):	Ahmad Ibrahim Kulliyyah of Laws Institute of Islamic Banking & Finance (IIiBF)
Depositing User:	Prof. Dr Ida Madieha Abdul Ghani Azmi
Date Deposited:	11 Jun 2018 12:07
Last Modified:	11 Jun 2018 12:07
URI:	http://irep.iium.edu.my/id/eprint/64047

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