Treatment of Silence as Misrepresentation in Contracts: A Critical Comparative Analysis of Common Law and Islamic Jurisprudence

Treatment of Silence as Misrepresentation in Contracts: A Critical Comparative Analysis of Common Law and Islamic Jurisprudence

SCImago Journal & Country Rank

Abstract

This paper provides a comparative discussion on silence as a misrepresentation in contractual obligations between common law and Islamic law. The objective of this paper is to—from a legal pluralism point of view—highlight the contrasts between the two traditions and provide recommendations for best practices to achieve fairness and equity among the contracting parties. While common law does not treat silence as conscious misrepresentation, in Islamic law silence does not constitute affirmative will. This has repercussions for the contracting parties because if future disputes arise the aggrieved party in Islamic law reserves the option to rescind or nullify the contract—an opportunity not afforded by common law. We discuss and analyze the implementations of the different contractual terms, such as, fraud, misrepresentation, trickery and deception in relation with Islamic law principles and Common law practices. The research is an effort to draw the attention for further development in both Islamic Law and Common Law practices on contractual obligation. The notion of misrepresentation—subset of a broader gamut of fraud—is arguably nebulous in Islamic literature as well. We delve into these nuances and provide examples both from common law and Islamic law precedents and provide recommendations for reform in both traditions.