KEDUDUKAN JANJI DALAM UNDANG-UNDANG ISLAM DAN AKTA KONTRAK 1950

Status of Promise in Shariah Law and Contract Act 1950

Abstract

This paper examines the status of promise in the contracts of Islamic banking and finance in comparison with Malaysia Contract Act 1950. It is accepted that the law applicable to all commercial contracts in Malaysia is governed by Federal law. No doubt that Islamic banking contracts are based on the principles of Shariah. However certain aspects of the Shariah may not be consistent with the Contract Act. Using qualitative analysis on the reading materials available and judgement of the case law, the authors conclude that there is a different between Islamic Shariah and Contract Act in respect of promise, where the former considers it as non-binding and the latter binding. Using juridical methods of Islamic jurisprudence the modern scholars of Shariah have proposed that promise in the modern Islamic banking contracts is also binding as this would protect the interest of the parties. By doing this the status of promise in both legal system is binding and thus avoiding any conflicts of law between Islamic Shariah and Malaysia Contract Act 1950.