FQ 5133: ISLAMIC LAW OF CONTRACT

Review Article
The Theory of Promise (Wad) in Islamic Law: A critical review from Islamic
Law of Contract Perspectives

Submitted by
MD AKTHER UDDIN
MSc Islamic Finance
Student ID: 1400225

Submitted to
Prof. Dr. Zainal Azam Abd. Rahman

INCEIF
The Global University of Islamic Finance

November 24, 201

Article Review

The Theory of Promise (Wad) in Islamic Law1

Application of wad (promise) in several Islamic financial transactions, for example, in sale
and purchase, murabahah, syirkah mutanaqisah, ijarah, and takaful has raised several issues not only
among practitioners but also academicians. In the recent past, importance of wad which has become
an innovative tool in structuring many forward contracts that require flexibility with full commitment
of the parties involved without jeopardising the basic principles and maqasid-Al-Shariah. The article
provides the most detailed presentation of wad from Islamic law perspectives. A number of research
have been carried out in the recent past to understand the theory of wad from Islamic law and its
contemporary application in financial transactions (Al-Masri, 2002; Razali, 2008; Laldin, 2009;
Abdullah, 2010; Muhammad, Yaacob and Hasan, 2011; Ginena and Truby, 2013). Abdullah and
Rahman (2015) marks one of the latest scholarly articles, published in Arab Law Quarterly in 2015.
Even though previous papers have thoroughly discussed the concept of wad from Islamic law of
contracts, Islamic jurisprudence, application in Islamic banking practices and development of
innovative Islamic financial products. In this article, authors narrowly focused on the theory of wad
and argued its obligatory nature from authentic Shariah sources, the Quran, Hadiths of the Prophet (
) , classical and contemporary jurists and resolutions from regulatory organizations.
Authors are associated with the Department of Shariah and Economics, Academy of Islamic Studies,
University of Malaya, Kuala Lumpur, Malaysia.
The Quran and Sunnah: the theory of promise
Allah ( ) says in As-Saff:

O you who believe! Why do you say that which you do not do?2
In the following verse Allah () says:

Most hateful it is with Allah "that you say that which you do3
1 F. Abdullah & A. A. Rahman. "The Theory of Promise(Wad) in Islamic Law." Arab Law Quarterly 29(2)
(2015): 168-189.
2 The Quran 61:2
3 The Quran 61:3

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In Surah Maidah Allah ( ) says again:

veOh you who belie"! Fulfill your obligations (contracts)4
Abu Huraira reported: The Prophet, peace and blessings be upon him, said, The signs of a hypocrite
are three: when he speaks he lies, when he promises he breaks his promise, and when he is trusted he
betrays his trust.5
The above Quranic verses and Hadith of Prophet ( ) amplify the importance a
promise for a true believing Muslim, whether this promise is to Almighty Allah ( ) or
promise to fellow human beings in everyday activity and transactions.
Structure of the article
The article is well organized and divided into eight sections, beginning with a concise
introduction, authors define the concept of wad and questions whether a promise, albeit personal or
transactional, is by nature binding on the promisor under Shariah law. Consequently, the term wad
is also discussed in relation to other concepts involving promise: i.e., aqd (contract), ahd (covenant
or binding agreement), nudhur (vows), and jualah (payment for performing a service). In the section
six, they discussed status of wad in Shariah followed by use of Wad in exchange contracts. In the
main body part of the article authors extensively analyze three different views: firstly, wad is
Recommended but not compulsory; secondly, wad is always obligatory on the promisor; and finally,
wad is binding but with conditions and exceptions. In the section seven, the study discusses
arguments presented by various scholars and jurists. After reviewing the opinions of a number of
classical Islamic scholars, this study concludes that under Shariah law all promises are generally
binding on the promisor, except in light of valid excuses or mitigating circumstances.
In the following section, a brief overview of the article will be discussed by sections. In order
to critically analyze the article, first of all, we need to understand the concept of wad (promise) and
difference between contract (aqd) and promise.
4 The Quran 5:1
5 Shahi Al-Bukhari 33 and Sahih Muslim 59

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According to Islamic Law it can be defined as being an expression of the matching between
a positive proposal made by one of the contractors and the acceptance of the other contractor in a
way which has an impact on the subject of the contract. 6 On the other hand, in Islamic
jurisprudence, the Arabic term wad literally means promise. Kharofa defines promise (wad) as
one individuals oral promise to do something good, but not necessarily in the future, for the welfare
of another individual.7 In addition, the term wad might also be used for transactions to be carried
out in the future. In the recent past, wad has emerged as an important instrument for the
development of Islamic financial products because it provides an alternative tool for use in contract
law. Whereas a contract (aqd) contains a number of tenets and conditions by which the contracting
parties must abide, wad is a more flexible promise that poses no such restrictions.
Summary of the article on section wise
Authors mentioned that under common law, the concept of wad does not always resemble a
simple promise. For example, the Malaysian Contracts Act 1950 defines a promise as: when the
person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted:
a proposal, when accepted, becomes a promise. This definition presupposes that contracts are drawn
up based upon promises, because once a proposal has been accepted by the other party (promisee),
then it becomes a binding contractual promise. When speaking of wad, acceptance by the promisee
is not required.
Authors identified and discussed important distinguishing features that apply to the concept of
wad. First, unlike a contract ( aqd) that communicates mutual agreement, wad is a voluntary offer
by a promisor for a promisee. Second, under normal circumstances, a promisor will receive no
remuneration for his/her action. Third, whether the deed is good or bad, the promisor must carry out
wad with another person (promisee) in mind. The deed must not be intended to benefit oneself.
Fourth, wad can be either an oral or written promise. Fifth, there is no consensus between modern or
contemporary scholars about the bindingness or obligatory nature of wad. Sixth, generally scholars
can be placed in one of two categories: those who agree that wad refers (a) to beneficial deeds only
or (b) to both honourable/ dishonourable actions that can take place immediately or at some later
point in time.
6 Ala al-Din Kharofa, Transactions in Islamic Law (Kuala Lumpur: A.S. Noordeen, 1997), 11.
7 Supra note 6

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From section two to five, authors briefly discussed the important differences between wad
and aqd, wad and ahd, wad and nudhur, and wad and jualah.8
According to the Majallah al-ah km al-adliyyah, aqd means: what the parties bind
themselves and undertake to do with reference to a particular matter. It is composed of the
combination of offer and acceptance. According to majority jurists, aqd must have at least three
fundamentals: 1) offer and acceptance, 2) subject matter and 3) contracting parties. On the other
hand, Kharofa says that the terms wad and aqd obviously differ, namely, that the former is a
promise and the latter an origination. Therefore, wad refers to a unilateral declaration to perform an
action in the future, aqd refers to a bilateral contract, agreed upon by the contracting parties before
signing to act on a particular matter in the present or future. Wad is a voluntary offer that should not
benefit the promisor, but aqd is a mutual agreement whereby all parties expect to gain some reward
or benefit.
Ahd (pl. uhud) literally means strict adherence to keeping a promise or vow, and is related to
having guardianship over something and making a covenant on it. Al-Jurjani initially stated that ahd
was used to mean preserving or maintaining something for a period of time, after which it became a
covenant upon which one was obliged to adhere. While discussing the difference between wad and
Ahd authors gave Quranic evidence from Surah At-Tawbah (9:75-77) but only referred Al-Jurjani,
there might be other opinions from classical and contemporary scholars regarding this issue.
According to the Shariah, nudhur (sg. nadhr) are vows to perform a good deed in the future
or obligations on oneself to act in a way that will please Allah() . Ibrahim Fadil al-Dibu
says that, despite their differences, wad and nudhur are also similar in that both terms are promises
to do something good in the future. However, wad does not imply any particular intention to draw
nearer or seek Allahs pleasure. Moreover, although kaffarah (atonement) is compulsory for anyone
failing to fulfil nudhur, this does not apply to wad.
Jualah (pl. jaail) is a noun which means pay, reward, or prize. It differs from wad because
it involves a payment for specific services rendered, although the final outcome is not necessarily
certain, during a period of time that has/ has not already been designated. In jualah, the individual
whose action will benefit someone else is entitled to a certain reward declared in advance. This is not
the case for wad, where fulfilment of a voluntary promise need not be compensated by the promise.

8 Supra note 1 at p. 172-175

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Although, it is necessary to differentiate various concepts in the previous section, concept of

wad and aqd seems quite relevant and the rest of conceptual differences are evident from Shariah
law perspective. More importantly, one third of the article focused on introduction and conceptual
differentiation of various similar concepts to wad. Authors could have reduced the length of the
paper significantly and got into the main research interest immediately, however, this initial
discussion helps clarifying concepts for readers who do not have extensive background in Shariah
law.
In the section six, the status of wad in the Shariah, authors intensively discuss and argue
whether wad is binding or non-binding in nature from Shariah sources.9 Most importantly, the
objective of the study is to explore two functions of wad: namely, as a more flexible, transactional
promise and, as a unilateral, voluntary promise. They further argue that Scholars have not yet reached
an agreement whether wad can function in exchange contracts, e.g., to buy, lease, etc., nor whether a
promise is legally binding on the promisor. In contrast, when referring to wad as a voluntary
promise, we can say that wad is permissible (mubah ) when the intention of the promisor to do a
good deed in the future is sincere. However, if the promisor knows in his heart that his promise is
deceptive, then wad is forbidden (h aram) under Shariah law. Then, authors got into detailed
analysis of these two functions.
Even though some jurists (Ahmad b. Muhammad Alish and Al-Islambuli) argue that wad is
only binding for tabarruat but not for other commutative contracts, authors are convinced with the
argument provided by Ibn Shubarmah and Al-Qardawi, according to whom, wad is compulsory or
binding in both transactional and voluntary contracts. It can be added here that, authentic sources
from Quran and Hadith clearly support this view.
In the following subsection (6.2.1-6.2.3) authors discuss the opinions of classical and
contemporary scholars on the binding nature of wad, and attempt to unearth the most preferred
opinion amongst the three categories: (1) wad is recommended (mustah abb) but not compulsory
(wajb), (2) wad is always obligatory (wajb), and (3) wad is binding but with conditions and
exceptions.
Wad is recommended (mustahabb) but not compulsory (wajib)

9 Supra note 1 at p. 175-184

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The majority of scholars from the Hanafi, Shafi and Hanbali schools of jurisprudence
conclude that wad is not compulsory (wajib) on the promisor nor is breach of promise a sin.
However, the importance of keeping ones promise is praised as noble in various Quranic verses.
Authors discussed many evidences from Hadiths of the Prophet ( ) and opinions of
classical jurists (Badr al-Dn al-Ayn, Al-Sarkhas, Ibn bidn, al-Buht, Ibn Haz m) and
contemporary scholars (Rafic Yunus al-Masri).
Wad is always obligatory (wajb)
There are notable classical and contemporary scholars who hold that wad is always
obligatory. Authors discussed view of scholars like Ibn Shubarmah, Ibn Hajar al-Asqalani, Ishaq bin
Ibrahim who confirm that wad is compulsory. In his commentary on al-Furq, Ibn al-Sht t resolves
that most evidence found in Shariah sources speaks out against breach of promise, which would be
considered errant behaviour except under mitigating circumstances. Al-Ghazl concludes that once
someone comprehends that wad is by nature binding, then he/she will not revoke a promise except if
there is a valid excuse (udhr). Al-Qardawi, a contemporary scholar tends to argue in favor of binding
nature of wad and further argues that whatever is considered compulsory from a religious point of
view must also be legally binding. Authors summarized various views as follows: (1) that wad is
both religiously and legally binding on the promisor, (2) that breach of promise is prohibited except
in mitigating circumstances (udhr), (3) that breaking a promise is a sin against Allah () ,
and (4) that in some cases a promisor will be forced to oblige in a court of law.
Wad is binding but with conditions and exceptions
A third group of Islamic scholars opine that wad is binding although subject to two
conditions: namely, the promisee has already or has not yet undertaken an action based on what was
promised. Compared to other two views, there are not many scholars who support this view, but
authors discussed resolution of Islamic Fiqh Academy.
Ibn Nujaym, Asbagh and others put forward that wad is binding when linked to a cause
(illah). Also, An Hanaf maxim states: the promise which is attached to a cause is compulsory.
Contrarily, Maliki school is of the opinion that promise becomes compulsory when attached to a
cause. Imm Mlik, Sahnun, al-Lakhm and others are proponents of this opinion. The Islamic Fiqh
Academy resolves that:

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According to Shariah, a promise [made unilaterally by the one who orders the purchase or
the seller] is morally binding on the promisor, unless there is a valid excuse. It is however
legally binding if made conditional upon the fulfilment of an obligation, and the promisee has
already incurred expenses on the basis of such a promise. The binding nature of the promise
means that it should either be fulfilled or compensation paid for damages caused due to
unjustifiable non-fulfilment.
Authors state that evidence from the Quran and Sunnah with which to support the positions of
these scholars is contradictory and must be harmonize among the different types of evidences.
Therefore, al-Qarf states that to resolve the problem of conflicting evidence which does/ does not
necessitate the fulfillment of a promise, one must consider whether the promisee has undertaken any
activities based on the promise made to him; if so, wad becomes compulsory.70 Some contemporary
scholars add that this opinion is based on the following Hadith: There should be neither harm nor
reciprocation of harm.
In the section seven, authors discussed and argued various views provided in favour of above
three different opinions.10 Authors critically analyzed the Hadith narrated by Safwan bin Sulaym, in
which a man asks the Prophet ( ) about a promise to his wife, that provides evidence
for the first group of scholars, who claim that wad is recommended (mustah abb) but not compulsory
(wajb). Authors argue that the man does not clearly admit to the Prophet that he knows with certainty
that he will be unable to fulfil his promise; rather his question is general about making promises to
his wife, which he may/may not be able to carry out in the future. In the first part of this Hadith, the
Prophet ( ) forbids the man to tell an outright lie, i.e., a deceitful promise, just to please
his wife. However, promising to do something for her in the future which may later prove impossible
due to unforeseen difficulties is not sinful because, on the other hand, his promise might equally
prove feasible. In that case, he has not sinned. Authors argued because of that Hadith doesnt allow
breaking a promise.
Authors discussed about the Hadith which tells us that someone who cannot fulfil a promise
that was made with a sincere heart is not considered sinful. They argued that anyone whose pledge is
sincere will naturally do his utmost to carry out his promise and will probably only fail to do so when
restricted by hardship. This Hadith does not permit breach of promise when the promisor has made
no true effort to succeed.
10 Supra note 1 at p. 184-187

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Authors gave a detailed discussion on relating promise to hibah, Muhallab, according to alAsqaln, argues that there is consensus among all scholars that a promisee, unlike a creditor, cannot
claim that a promise is compulsory as in a bequest. Al-Nawaw argues that a promise resembles a
donation (hibah), the fulfilment of which, like assets, is not generally immediate. Ibn Rushd
comments that any analogy with a hibah, pending transfer of assets to a beneficiary, is neither
appropriate nor relevant. While some scholars, such as Ab Hanifah and al-Shfi, agree that
transferral of assets is a condition to complete the contract, Imm Ah mad and Ab Thawr opine that
transferral is not necessary. However, the majority but not all scholars hold the view that a donation
(hibah) is not binding until assets have been transferred to the beneficiary. Al-Amur cites several
compelling conditions that must be valid before wad can be carried out: e.g., the promisor must be
alive, solvent, etc. Death of the promisor will nullify wad. However, if the promisor is alive, then it
remains not only commendable (mandb) but also obligatory that his promise be fulfilled.
Authors stated that Ibn Haz ms argument for comparing nudhur (vows) with wad (promise)
is unclear because both terms hold essentially different connotations. Nudhur (vows) are intended to
draw someone nearer to Allah () , and anyone who breaks a vow must repent for his/her
grave error and seek reconciliation with Allah through atonement (kaffarah). In contrast, wad can
relate to both religious and worldly matters involving mankind. However, some scholars view that,
while nudhur is absolutely compulsory, hardship can in fact thwart someones sincere and
conscientious efforts to prevail.
Authors tend to favor more with the second opinion, wad is always obligatory (wajb) on the
promisor. By interpreting the first and second verse of Surah As-Saf, authors stated Ibn Hazims
saying one can conclude that this verse not only criticizes people who fail to perform their religious
duties, such as jihd, but also those who fail to carry through on voluntary promises, such as donation
(sadaqah).
Authors concluded that this verse provides strong evidence to support the bindingness of

promise. They further argued that authentic Hadith regarding sign of munafiq is also strong proof to
establish bindingness of wad. However, authors refuted that Hadiths narrated by Zayd bin Aslam
and Ibn Abbas have a weak chain of narration.
Moreover, authors stated that t is generally accepted among the scholars that weak h a dths
may be taken into consideration as supporting tools to the authentic h adths to strengthen a position
but didnt give any references.

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Regarding the third views, wad is binding but with conditions and exceptions, authors argued
that one cannot adequately argue that harmonizing contradictory evidence from the Shariah makes a
promise binding when it is attached to a cause because it might be possible to resolve conflicting
evidence by taking a different stance, such as promises are compulsory except when there is a valid
excuse. Moreover, Ibn Haz m comments that the opinion of the Mliks is not founded on evidence
from the Qurn or Sunnah. At the same time, authors stated that although some contemporary
scholars relate the Hadith about eliminating harm to the Mlik position, it is important to recall that
the basic principle of the Shariah requires that justice be afforded to each individual whatever the
situation. By stating ayat 58 of Surah an-Nisa, authors argued that harm must be eliminated for both
the promisor and promisee. Compelling a promisor to fulfill his promise might place insurmountable
difficulties on his shoulders and cause him harm. Therefore, a promise should not be binding in the
face of hardship.
Authors also brought another interesting dimension in discussion regarding differentiation in
religious and legal promise. Authors argued that those who support this view do not provide any
references from classical scholars that declare a promise to be binding under religious law only.
Authors mentioned al-Qardawi who agrees, along with all classical scholars, that what is binding
under religious law should also be legally binding in a court of law.
In the section eight, they discussed about the substantial opinion by considering Quranic
evidences, authentic Hadiths of the Prophet () , scholarly arguments from classical and
contemporary scholars given.11 Al-Ghazl cites that when the bindingness of wad is comprehended,
then it must be fulfilled except when there is a valid excuse. After analyzing various arguments
provided by the authors, it can be said that they tend to agree more with the second group of scholars
who think wad is binding on the promisor, but included that legitimate execuse (udhr) or mitigating
circumstances should be taken into consideration. . Furthermore, the Malikis argue that wad is
obligatory on the promisor, if attached to a cause, and that the promisee will experience difficulties or
harm if the promisor revokes his promise. Therefore, when we implement that the promise is binding
on the promisor, then the promisee will be shielded from harm.
In conclusion, authors reiterated that wad is a binding promise, both in transactional and
voluntary, in Islamic and there exist sufficient evidence from Quran and Sunnah of our beloved
Prophet () . Moreover, wad is different from aqd (contract) in that a promise is made
11 Supra note 1 at p. 187-188

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by one party only for an action to be carried out at a later time. Authors argued that opinions of
Mlik scholars, which are accepted by most modern jurists, are not strongly supported by Qurnic
texts and the Prophets Sunnah. In some ways they have attempted to resolve the conflicts involving
juristic opinions by taking a middle position. The study concludes that the weightiest opinion is that
wad is binding on the promisor unless there is a lawful, mitigating excuse.
Critical analysis from current literature review
In this section, a recent review of literature on selected papers is going to be discussed and
tried to connect with the article reviewed.
A good number of researches have been conducted on this topic since the last decade and so.
Emergence of Islamic finance is the pivotal to this growing interest in this theory. Theory of wad has
played an instrumental role in the development of the Islamic financial services industry. Criticised
by many Industry observers for bringing a number of (undesired) Western financial solutions to
Islamic banking and finance, promises have, nevertheless, proven to be an effective tool for
structuring innovative Islamic financial products.12
Akram Laldin conducted a comprehensive study on theory of promise and bilateral promise in
financial contracts from fiqhi perspective.13 In this 42 pages research paper published from
International Shariah Research Academy for Islamic Finance (ISRA), the author provided a clear
understanding of promise from Shariah perspective and compared with bilateral promise. Unlike
Abdullah and Rahman, the paper discussed various decisions, resolutions and fatwas regarding both
promise and bilateral promise. The author argued that promises should not be used indiscriminately,
rather parameters must be laid down for their use and identified nine parameters.
Ginena and Truby discussed the use of promise in Islamic finance contracts and its
application in one of the leading bank in Germany, Deutsche Bank. 14 They stated that the prominence
of promises in Islamic finance has increased ever since Sami Hamoud's contemporary discovery of
murabah ah for the purchase orderer as a financing technique. They discussed promise from religious
12 H. Dar, Promises, promises, (New Horizon, 2010): 1-4.
13M. A. Laldin, The Concept of Promise and Bilateral Promise in Financial Contracts: A Fiqhi Perspective,
International Shariah Research Academy for Islamic Finance (ISRA), (2009): 1-33.

14 K., Ginena & J. Truby, Deutsche Bank and the Use of Promises in Islamic Finance Contracts, Va. L. & Bus. Rev., 7
(619) (2012).

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binding and legal binding. They discussed about abstract and non-abstract promises, unlike nonabstract contracts which are enforceable, both in transactional and voluntary contract, in a court of
Islamic law, abstract contracts are considered enforceable by as scholars like Ibn Shubrumah,
however, many scholars disagree with that and Abdullah and Rahman mentioned those who discuss
about differences in promise from religious and legal point of view do not provide enough evidence
from Shariah sources and opinions of classical jurists. They also provided detailed differences in
non-binding and binding bilateral contract. More importantly, it was revealed that the latter category
takes the constructive ruling of a contract (f h ukm al-aqd) and demonstrated that contracts can be
added to a future time or made contingent upon the fulfillment of a condition so long as they meet
some general guidelines. In addition to that, OIC and AAOIFI resolutions have been discussed quite
intensively.
However, Al-Marsi argues that there is no difference between unilateral promise and bilateral
promise and concluded that it is inadmissible for the unilateral promise ( wad) as an alternative to a
proscribed contract, such as selling goods that are not in ones possession, to be binding, because a
binding unilateral promise ( wad) is analogous to a contract.15
Abdullah studied the status and implications of promise (wad) in Islamic banking practices
and the extent of its enforceability in the court of law.16 The analysis highlights the concept of wad,
its application and limitation in the present practices. The study reveals the usage of wad is allowed
by contemporary jurists as a necessity for the interest of the contracting parties. The paper admits the
importance of wad which has become an innovative tool in structuring many forward contracts that
require flexibility with full commitment of the parties involved without jeopardising the basic
principles and maqasid-Al-Shariah. The paper also highlights that the right of promissee is well
protected in both Shariah and civil law, and also enforceable in the court of law.
Muhammad and others conducted a comprehensive analysis of the bindingness and
enforceability of a unilateral promise from both the Islamic law and legal perspectives. 17 They stated
that wadan is a relatively new term introduced by modern scholars as a legal trick (hilah) to avoid
two promises on the same subject matter becoming a binding muwaadah, which is not allowed by
15R. Y. Al-Masri, The Binding Unilateral Promise (wad) in Islamic Banking Operations: Is it Permissible for a
Unilateral Promise (wad) to be Binding as an Alternative to a Proscribed Contract?, Journal of King Abdulaziz
University: Islamic Economics, 15(1) (2002): 29-33.

16 I. N. Abdullah, Status and implications of promise (wad) in contemporary Islamic banking, Humanomics, 26(2)
(2010): 84-98.

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most scholars. The legal trick works through having different conditions that will eventually lead to
the exclusive execution of one binding wad the future. They found that the majority of Muslim
scholars recognize wad in Islamic financial transactions to be binding on the promisor if it is
contingent and related to cause. However, Malaysian legal provisions, especially the Contract Act
1950, are silent on the enforceability of wad in a court of law. Therefore, the study proposes that a
separate clause on wad, defining its meaning and outlining the main characteristics or conditions of
binding wad, should be incorporated in the Act.
Wad in Common law
Ginena and Truby discussed Islamic jurists have permitted the enforceability of unilateral
promises based on the principle that a promise can be made enforceable at a time of need. 18
However the situation differs in English common law, where a promissee cannot enforce a promisors
promise if no consideration has been provided by the promisee. This requirement for some exchange
therefore precludes a type of unilateral contract where the promissee has not proven acceptance with
some positive act. Since wad contracts are traditionally unilateral, such promises will not normally
be enforceable. Wad can be treated as a promise in the common law if the promissee has provided
some consideration.
Razali stated that contract law rarely forces a party to fulfil contractual promises but what it
does is try to compensate innocent party who might suffer as a result of the breach of promise. This
has the double the function of helping parties to know what they can expect if the contract is not
performed and encouraging performance by ensuring that those who fail to perform cannot simply
breach their promise.19
In the U.S., a contract is described as a legally enforceable promise which means that to make
a contract, one must make a promise. The moral rules of promise typically require that one keep a
unilateral promise, even if nothing is received in exchange. However, contract law only regards as
17 M. Muhammad, H. Yaacob & S. Hasan, "The Bindingness and Enforceability of a Unilateral Promise (Wa d): an
Analysis from Islamic Law and Legal Perspectives." Kuala Lumpur: International Shariah Research Academy for
Islamic Finance (ISRA), Research paper 30 (2011).

18 Supra note 14
19 S. S. Razali, The concept of Waad in Islamic financial contract (Islamic Banking, Accounting and Finance
Conference, 2008), 1-12.

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enforceable promises that are exchanged for something on or which the promisee has reasonably
relied to her loss. When breach occurs, the legal doctrine of mitigation, unlike morality, places the
burden on the promisee to make positive efforts to find alternative providers instead of presumptively
locating that burden on the promisee to make positive efforts to find alternative providers instead of
presumptively locating that burden fully on the breaching promisor.20
A further possibility is wad within the common law concept of promissory estoppel. When a
promissee has not provided consideration but has relied on a clear and unambiguous promise, the
common law concept of promissory estoppel can prevent the promisor from reneging on the promise
where it would cause the promisee to suffer a loss to the extent of being inequitable (Ginena and
Truby, 2013). However, it is argued by Muhammad, Yaacob, and Hasan that promissory estoppel
differs from wad mainly due to the concept of silence. Since wad promises must be explicit, it is
thought that they do not meet all the criteria of being promissory estoppel. Where there is no silence
therefore, wad may be capable of falling within the defence of promissory estoppel. As such, it is
possible that wad promises can fall within the ambit of the common law, but do not do so in every
case.
Conclusion
With the emergence of Islamic finance, the application of wad in financial transactions has
been increased significantly. Now a days, many banking and capital market products are based on
wad principles. The article presented a comprehensive view of wad from Islamic Law perspectives,
more specifically, reasoning behind three different views, namely, wad is non-obligatory, wad is
obligatory and wad is obligatory when lead to a cause. Authors gave ample evidence from the
primary sources of Shariah: the Quran and the Sunnah. Moreover, they brought in many convincing
arguments from classical Jurists and scholars and compared with contemporary ones. Even though a
great number of research have been carried out in the recent past on wad and its application in
modern Islamic finance, this article discussed theory behind the wad convincingly. A selected
literature review has been carried out to find the missing links in the article. The review shows that
Jurists are still divided in their opinions regarding difference between promise being morally binding
and legally binding. Majority contemporary scholars and Jurists tend to agree with the opinions of
Maliki scholars as mentioned by F. Abdullah & A. A. Rahman. In common law, the concept of wad
differs from Islamic law. Authors conclude that wad in Islamic law is a voluntary, unilateral offer
20 Ibid.,

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from one party to perform an act for other party in the future. Notably, wad is different from aqad in
that a promise is made by one party only for an action to be carried out a later time. There are
different opinions among classical jurists regarding bindingness of a wad based on evidence in the
Quran and Hadiths. They found that the opinions of Maliki scholars, which are accepted by most
modern jurists, are not strongly supported by Quranic texts and the Prophets Sunnah. They took this
middle ground to avoid conflict based on Istihsan (juristic opinions). Wad is binding on the promisor
unless there is a lawful, mitigating excuse seems to be the most convincing opinion.