(2008) 16 IIUMLJ 51

ONLINE CONTRACT AND THE ISSUES

OF GHARAR AND UNCERTAINTY

Siti Salwani Razali*

ABSTRACT

The use of internet as a medium of communication

has widened the scope of contract formation. Sale
and purchase activities are held online either for
performance of contract through the internet itself
or to be performed outside the cyber world. Under
Islamic Law there are several areas of uncertainty
which will have significant impacts on electronic
contracting according to Shariah. This is considered
as a very fundamental issue especially in the online
contract which implies the non physical presence of
the parties. In fact if certain fundamental issues in
the online contract are not resolved, then the
dominant entry of the principles of gharar
(uncertainty) arises, and this will make online
contracts in Islamic Shariah not feasible. This article
seeks to examine what is actually meant by gharar
and how it affects the enforceability of the electronic
contract in the Shariah. It also discusses the issue
of uncertainty under Common Law with a view to
ascertain its implications.

*
Assistant Professor, Kulliyyah of Economics and Management
Sciences, International Islamic University Malaysia.
52 IIUM LAW JOURNAL VOL. 16 NO. 1, 2008

GHARAR AND ITS IMPLICATIONS ON CONTRACT

UNDER THE SHARI’AH

Literally, gharar implies hazard or risk (khaÏar or mukhÉÏarah),

chance or stake.1 In Islamic legal terminology, this is the sale of an article
of goods which is not present at hand; or sale of an article of goods, the
consequence (‘aqibah) or outcome of which is not yet known; or a sale
involving risk or hazard where one does not know whether the commodity
will later come out to be or otherwise.2 The term means that such
transactions, which are prohibited in Islam in form, are apparently no
different from those prohibited in Islam for deceiving when in reality the
nature of the object is not known and therefore risk is involved.
Gharar in contract means the element of uncertainty in the
subject matter of a contract or as regards the price of the goods, or any
speculative risk.3 The presence of gharar in a commercial transaction
or in the related contract enables one party to earn material gain at the
expense of the other party. There is no agreement among scholars as to
the degree of gharar that renders the contract void. Scholars distinguish:
a) trifling gharar (gharar al-yasÊr), element of uncertainty that is
acceptable from the point of view of Shariah; b) average gharar (gharar
al-mutawassiÏ), the contract can be valid if certain conditions are met;
and c) excessive gharar (gharar al-kathÊr), the presence of which
invalidates the contract.
Malik defines bay al-gharar, explicitly as an aleatory transaction.
Bay al-gharar, according to him, can be defined as a sale of an object
which is not present so that the quality being good or bad is not known to
the buyer. These are sales where there is an element of chance. Aleatory
sales are common in pre-Islamic times. Eventually, the transaction of al-
gharar is reported to have been banned by the Prophet.

1
According to Schacht, Arabic mukhÉÏarah was attested by medieval
Latin as mohatra.
2
Gharar also means risk, peril and uncertainty. The gharar sale is a kind
of sale which involves giving an undertaking which the seller is not
certain to fulfil.
3
For instance, gharar is present when the seller sells goods that he
does not currently possess (fish in water etc.), or if the performance of
obligations under an agreement is conditional on the occurrence or
non-occurrence of a certain event (fall in currency exchange rate etc).
Online Contract and the Issues of Gharar and Uncertainty 53

Whereas according to Ibn ManÐËr, gharar literally means danger

whereby according to al-QurÉfÊ in his book gharar also means khadÊÑah
that is cheating.4
In a contract of sale, gharar often refers to uncertainty and
ignorance of one or both of the parties over the substance or attributes
of the object of contract or of doubt over its existence at the time of the
contract. Muslim jurists have differed widely over the definition of gharar.
There are various definitions and interpretations of gharar by various
prominent Muslim scholars, among them are:

1. According to SarakhsÊ: gharar takes place where the

consequences (of transaction) remain unknown.5

2. According to Ibn Hazm: gharar in sales occur where the

purchaser does not know what he has bought and the seller
does not know what he has sold.6

3. Ibn ÑÓbidÊn7 defines gharar in the following words: gharar is

uncertainty about the existence of the subject-matter of sale.8

4. Ibn Qayyim has described gharar as being the subject matter,

the vendor is not in a position to hand over to the buyer whether
the subject matter exists or not.9

4
Some jurists like QÉÌÊ ÑAyyad said originally gharar is something that
superficially shows what you like but actually you hate it. That is why
it is said that al dunyÉ mata’ al ghurËr (the worldly life is mere illusion.
manipulated without actual awareness of the property being implicated.
Taken from the book Al-QurÉfÊ, al-FurËq, 3 Beirut, DÉr al Fikr (1973) p.
266.
5
Al-Sarakhsi, MuÍammad al-MabsËÏ b. AÍmad, MaÏbaÑah SaÑÉdah,
Egypt 1372.
6
Ibn Hazm, al-AÍkÉm fi UÎËl al-AÍkÉm, Egypt, MaÏbaÑah SaÑÉdah,
1348.
7
Ibn ÑÓbidÊn, Radd al-MukhtÉr Ñala Durar al-MukhtÉr, Egypt, Bulaq.
8
Sarakhsi, Al-KÉsÉni, Ibn ×azm and Ibn ÑÓbidÊn, all of them belong to
×anafÊ school, as regards to the definitions given by them what Ibn
ÑÓbidÊn focused on in his definition is suspicion but Sarakhsi and
KÉsÉni emphasize more on the uncertainty of the outcome.
9
Ibn Qayyim, IÑlam al-MuwaqqiÑin, 1 Beirut, DÉr al Kutub al-ÑIlmiyyah,
358.
54 IIUM LAW JOURNAL VOL. 16 NO. 1, 2008

5. According to Ibn Rushd, gharar is to be found in contracts of

sale when the seller suffers a disadvantage as a result of his
ignorance, with regard to price of the article or the indispensable
criteria relating to the contract or its object or quality or time of
delivery.10

6. SanhËrÊ,11 an eminent modern jurist is of the view that lack of

knowledge about the material terms of the contract is the distinct
feature of a gharar contract. He says that gharar takes place
in the following circumstances:

a. when it is not known whether the subject matter exists;

b. if it exists at all, whether it can be handed over to the
buyer;
c. when want of knowledge affects the identification of
the genus or species of subject matter;
d. when it affects its quantum, identity or necessary
conditions; and
e. when it relates to the date of a future performance.

Ibn Taymiyyah makes a clear cut definition and category of

gharar when he said that it is of three types. First, baiÑ ma’dËm that is
a sale of non existing contract, second baiÑ sinÊn, that is the sale of
something where the seller can never deliver; and third, baiÑ majhËl
that is the sale of unknown object. In other words he is saying that gharar
is similar to jahÉlah (lack of knowledge).12
Whereas according to MÉlikÊ, gharar in the view of Malik bin
Anas is a business contract of not knowing exactly what will be the
outcome.13 This is quite near to the meaning of gharar according to
ShÉfiÑi whereby the majority of jurists from ShÉfiÑÊ define gharar as a
contract of unknown outcome.14

10
Ibn Rushd, BidÉyat al-Mujtahid, MuÎÏafÉ al-BÉbÊ al-×alabÊ, Cairo 1370.
11
SanhËri, MasÉdir al-×aq, vol. 4, p. 270.
12
Ibn Taymiyyah, NaÐariyyÉt al-‘Aqd, Beirut, DÉr al-ÑIlm.
13
ImÉm MÉlik, Al-MuwaÏÏa’, Vol. 5, Cairo, MaÏbaÑah Al-SaÑÉdah (1332) H,
42.
14
Al-ShÊrÉzÊ, Al-Muhadhdhab, Vol. 1, Cairo, ÑÔsa ×alabÊ, 263.
Online Contract and the Issues of Gharar and Uncertainty 55

From these definitions we can say that gharar revolves around

the issue of a business contract of uncertain outcome, or uncertainty
regarding the knowledge of the subject matter of the contract and also
the element of jahÉlah (lack of knowledge) and uncertain end of a
contract. In other words, gharar thus includes both ignorance over the
material attributes of the subject matter and also uncertainty over its
availability and existence. These are the types of gharar which will
affect the application of online contracts under the SharÊÑah.

THE RULE FOR PROHIBITION

In general the Qur’Én explicitly forbids all commercial

transactions that involve injustice.15 The Prophet has clearly forbidden
gharar and jahÉlah (lack of knowledge) 16 which in contract is
characterized by an unspecified element of quality, quantity or price.
The general principle to avoid gharar in transactions can be
concluded from the Traditions, as reported to have been laid down by the
Prophet; a contract must not be doubtful or uncertain as far as right and
obligations of the parties are concerned. The object of a legal contract,
res in commercio must be precisely determined and terms must be clear
and known.
In this case the Prophet is reported to have said: “Do not sell a
thing which is not with you.”17 The sale of non-existent and undeliverable
goods was common in pre-Islamic times.
Concerning this matter, ÑAbdullah ibn ÑAbbas prohibited the selling
of dates on a palm tree before harvesting them. This means that the
transaction was not valid, unless the goods were ready to be delivered.18
Zayd ibn ThÉbit and Zubayr ibn ÑAwwÉm, on the other hand, allowed
such transactions. It could be suggested that this second opinion was
based on the assumption that the purchaser knew of the existence of the
goods and that the vendor would be able to deliver them on the agreed

15
SËrah Al-NisÉ’ 4:29.
16
Reported by Muslim, ØaÍÊÍ Muslim, vol. 3, p. 56.
17
Reported by Muslim, ØaÍÊÍ Muslim, vol. 3, p. 56.
18
Ibn MÉjah, Sunan Ibn MÉjah, vol. 1, 1372.
56 IIUM LAW JOURNAL VOL. 16 NO. 1, 2008

terms and at the agreed time. In this case, the purchaser would be aware
of the condition of the goods.
It may also be understood that the commodity must be defined
and determined and clearly known to the contracting parties. This rule
applies to any commodity which can be weighed and measured. A sold
commodity is deemed to be sufficiently known to the two parties if they
have inspected it, a commodity which is not there cannot be sold, unless
both parties have previously seen it. The purchaser has the right of option
to refuse to buy it after inspection.
In principle there is no difference of opinion among Muslim jurists
about the prohibition of gharar. They prohibit gharar because it affects
the subject matter and the price, which can generate unearned profit or
an unacceptable loss to the parties to a contract. Hence the motive behind
the prohibition of gharar is avoidance of risk in sale.19
It is also obvious that with regards to sale transactions, the rational
behind the prohibition of gharar is not the existence or non existence of
the goods but it is the vendor’s obligation to deliver the subject matter of
the sale. If he is not in a position to do so, the transaction will be void
according to the degree of gharar involved.20 For instance the rules laid
down to prevent uncertainty in the contract of sale have been applied by
analogy to the sale of salam (a sale with advance payment for future
delivery) istiÎnÉÑ (contract of manufacture) and ijÉrah (lease contract).
These contracts ought to be considered as invalid but because of economic
needs and the public interest these contracts are treated as legitimate
transactions in that they fulfil certain specifications despite the non
existence of the goods at the time of delivery.21
Several reasons were given for the prohibition of bay’ al-gharar.
Some of them are related to fraud since such a sale amounts to obtaining
property of others by selling unavailable goods and the contract may
lead to disputes and disagreements between the parties in the contract,
or stipulating an agreement to agree, or an agreement in future.

19
Amin S. Hasan, Islamic Law in the Contemporary World, Royston
Ltd. U.K, 1985, p. 72.
20
Salih, Nabil, Unlawful Gain and Legitimate Profit in Islamic Law,
Cambridge University Press, 1986, p. 554.
21
Salih, Nabil, Unlawful Gain and Legitimate Profit in Islamic Law,
Cambridge University Press, 1986, p. 554.
Online Contract and the Issues of Gharar and Uncertainty 57

THE OPTION OF SIGHT (KHIYÓR AL-RU’YAH) AND

BAIÑ AL-GHÓ’IB

The ×anafis are the vanguards of promoting the permissibility

of the option of sight in a sale contract. They claimed that the expedient
was provided by a ÍadÊth reported from Al-ZurqÉni that the Prophet
decreed that if a person bought a material which he had not seen, he had
the option whether to rescind or endorse the contract upon sighting that
material.22
Based on this ÍadÊth the ×anafis maintain that the sale of an
absent subject matter is valid even though the buyer has not been informed
by the seller on its character provided that the buyer has this right of
option. The ×anafi’s furthermore argue that want of knowledge in this
particular transaction is trivial (yasÊra). For example when one says to
another “I sell to you all my property which is in this house”, the sale is
valid because want of knowledge in the sale is trivial and not substantial.23

EFFECT OF GHARAR ON CONTRACTS

Depending on its scale and magnitude gharar may render a

contract totally null and void or it may constitute the basis of indemnity
and compensation. A slight gharar may on the other hand be deemed to
be tolerable in which case its presence would not affect the basic validity
of a contract.24
However gharar primarily affects commutative contracts meant
for alienation of property for consideration such as sale and hire. The
effect of gharar on hire is the same as on sale contract. Some points of
similarity between the two contracts with regard to the effects of gharar
are as follows:

i) ÑUrbËn (earnest money) is impermissible in hire as it is unlawful

in a sale contract.

22
Al ZurqÉnÊ, SharÍ al-ZurqÉnÊ, Egypt, MaÏbaÑah SaÑÉdah, 1379.
23
QÉÌÊ KhÉn, FatÉwa Al-KhÉniyya, Egypt, 1865, vol. 2, p. 114.
24
Hashim Kamali, “Uncertainty and Risk Taking (gharar) in Islamic Law,”
IIUM Law Journal,1999, vol. 7, Number 2, p. 200.
58 IIUM LAW JOURNAL VOL. 16 NO. 1, 2008

ii) Both the sale and hiring contracts are not allowed to be made
contingent upon some uncertain future event.
The rented utility in a hiring contract should be known and
specified in the same way as price and commodity should be
known in a sale contract.

iii) It is a condition of a valid sale that its subject-matter should be

deliverable. The same rule applies to a hiring contract. As such,
the ijÉrah of a stray animal is not permissible.

iv) The time of ijÉrah should be fixed. In a deferred payment sale,

the time of payment of price should be also fixed.

For example, if in the contract the fixed date for payment is not
stated this means that there is uncertainty in the terms of the contract
and this will amount to gharar.
The Muslim jurists differ on the effects of gharar on gratuitous
contracts. To MÉlikÊ jurists, gharar has no effect on donations. Thus, it
is valid to donate escaped animals, or fruits before they ripen. But
according to ShÉfiÑÊ, ×anafÊ and ×anbalÊ jurists, the subject matter of
donation should be known and determined. They do not allow the donation
of an unborn animal or milk in the udders. As regards to a will, all the
jurists are unanimous that it is valid even if the subject matter is non-
existent, undetermined and outside the control of the testator or
beneficiary. It is, therefore, permissible to bequest what an animal or a
tree will produce. It is also valid to bequest an undetermined portion of
property. This testament is treated valid and it is the duty of the heirs to
specify that portion.

UNCERTAINTY UNDER COMMON LAW

Generally under Common Law there are two aspects to the issue
of uncertainty. First the language used may be too vague in which case
the court is likely to hold that there is no concluded agreement i.e the
contract is void for uncertainty. The court needs to be convinced that the
alleged contract is expressed in language so obscure and so incapable of
Online Contract and the Issues of Gharar and Uncertainty 59

any definite or precise meaning that it is unable to attribute to the parties

any particular contractual intention.25
The second aspect is that of failure to reach agreement on a
vital or fundamental term of an agreement. In that event the contract
also fails for incompleteness though there is no problem with the clarity
of the language. An agreement that is unclear and that which is incomplete
can shade into one another and brings into misunderstanding between
the parties.
The two categories of uncertainty at common law are best
summed up in this judicial statement:

“It is a first principle of the law of contract that there

can be no binding and enforceable obligation unless the
terms of the bargain or at least its essential or critical
terms have been agreed upon. So there is no concluded
contract where an essential or critical term is expressly
left to be settled by future agreement of the parties.
Again there is no binding contract where the language
used is so obscure and incapable of any precise or
definite meaning that the court is unable to attribute to
the parties any particular contractual intention”26

From here we may understand that under Common Law

uncertainty will arise if there is uncertainty as regards the terms of the
contract and also uncertainty regarding the language and the meaning of
the terms of the contract.
The Malaysian Law in section 30 of the Contracts Act 1950
provides that:

“Agreements, the meaning of which is not certain or

capable of being made certain are void.”

If A agrees to sell to B ‘a hundred tons of oil’ there is nothing

whatever to show what kind of oil was intended and thus the agreement
is void for uncertainty.27

25
See G. Scammel & Nephew Limited v. Ouston (1941) AC 251 at 268.
26
Menzies J. quoting Sugerman J. from the N.S.W. Supreme Court, Thorby
v. Goldberg (1964) CLR 597 at 607.
27
Section 30, Contracts Act, 1950, illustration c.
60 IIUM LAW JOURNAL VOL. 16 NO. 1, 2008

But if A is a dealer in coconut oil only, agrees to sell to B one

hundred tons of oil, the agreement is not void for uncertainty because the
nature of A’s trade affords an indication of the meaning of the words.
The contract will be construed as one for the sale of one hundred tons of
coconut oil.28
However if the meaning is unclear but it is capable of being
made certain, the agreement is not void for uncertainty. The example
can be seen from the illustration below i.e.

“A agrees to sell to B one thousand kilos of rice at a

price to be fixed by C. As the price is capable of being
made certain, there is no uncertainty here to make the
agreement void.”

In the above example if C refuses or is unable to fix the price

only then will the agreement become void.
In Karuppan Chetty v. Suah Thian29 the contract was declared
void for uncertainty because the parties agreed to a lease of $35 per
month for ‘as long as he likes.’
The court is often in an unenviable position when it is called
upon to construe an agreement whose terms are somewhat uncertain.
On the one hand it does not wish to impose terms not intended by the
parties and on the other it tries to imply certain terms to uphold a loosely
worded agreement, bearing in mind that people do not always work out
the terms of their agreements in meticulous detail.30

THE ISSUE OF GHARAR IN THE ONLINE CONTRACT

One important issue regarding online contracts under ShariÑah

is the issue of gharar .The juristic debate over gharar revolves around
the question whether it consists mainly of uncertainty over the existence

28
Ibid.
29
(1916) 1 F.M.S.L.R. 300.
30
Beatrix Vohrah, Wu Min Aun, The Commercial Law of Malaysia, 2001
at 47.
Online Contract and the Issues of Gharar and Uncertainty 61

of the subject matter of contract or whether gharar basically consists of

ignorance of the material attributes of the contract.31
As the online contract is considered as an inter absente contract
and the parties are contracting without seeing each other and without
knowing the real existence of the subject matter and its attributes then
the question of gharar will be an issue.
In online contracts, the issue of gharar will arise as there are
times whereby we do not know whether the subject matter exists or not,
deliverable or not and sometimes the subject matter is presented in
description only without being given the true picture of its genus and
attributes. Hence it is still necessary to revive the issue to know whether
this can affect the validity of the online contract.
After a thorough examination, the types of gharar which are
relevant to the online contract are gharar as regards to the existence of
the subject matter, and also gharar as regards to the attributes of the
subject matter.
According to Hashim Kamali32 with reference to a sale of the
unseen or sale of what is not visible (baÊÑ ghÉib), the schools of law
have held different views on the ground basically of their respective
perceptions of gharar. Whereas ShÉfiÑÊ33 considered gharar in baiÑ al-
ghÉÑib to be fatal, ImÉm MÉlik34 viewed it to be negligible. AbË ×anÊfah35
on the other hand held that there was no issue over gharar as long as
the buyer was granted the option of viewing (khiyÉr ru’yah).
This is somewhat different from the views of Ibn Qayyim36 and
al-SanhËrÊ37 when they further categorized the sale of non existent goods
into four categories:

31
Hashim Kamali, 1999, “Uncertainty and Risk Taking (Gharar) in Islamic
Law,” International Conference on Takaful Insurance, Kuala Lumpur,
Hilton, June 2, 1999.
32
Ibid.
33
Al-ShÉfiÑÊ, MuÍammad Ibn IdrÊs, al-Umm, Egypt, al-MaÏbaÑah al-
Amiriyyah.
34
ImÉm MÉlik, Al-MuwaÏÏÉ’, Vol. 5, Cairo, MaÏbaÑah Al-SaÑÉdah (1332) H,
42.
35
AbË ×anÊfah, Musnad al-ImÉm AbÊ ×anÊfah, 1327.
36
Ibn Qayyim, IÑlÉm al-MuwaqqiÑÊn, vol. 3, p. 237.
37
SanhËrÊ, MaÎÉdir Al-×aqq, vol. 4, p. 270.
62 IIUM LAW JOURNAL VOL. 16 NO. 1, 2008

Firstly, when the object existed in the essence but came into
completion thereafter; secondly, when the object although non existent
at the time of the contract was certain to exist in the future; thirdly, when
the object was non existent at the time of the contract, but whose existence
in the future was uncertain and fourthly, when the object was non existent
at the time of the contract and could not be expected to exist in the
future.
Of these four types, only the last two varieties presented situations
in which gharar was deemed fatal and therefore invalidated the contract.
As for the first two they have both concluded that gharar in them was
negligible and the sale in both cases was consequently valid.
This is supported by MoÍammad Øiddiq Al-DhorÊr38 when he
holds a similar view in saying that a sale of the non existent is unlawful if
its future prospects are totally unknown but that sale is valid if it is certain
that they will exist in the future.
This situation is basically consistent with the common law rules
of Sale of Goods. In fact in section 6 of Malaysian Sale of Goods Act
1957, it provides for the categories of goods which is existing or future
goods which become a valid subject matter to a contract.
Section 6(1) provides that:

“The goods which form the subject of the contract of

sale may be either existing goods , owned or possessed
by the seller or future goods”

According to Ibn ÑÓbidÊn, the opinion of Muslim Jurists are

divided regarding the requirement of the description of the subject matter.
×anafÊ Jurists are of the view that the description of subject-matter is
not necessary as long as it is present and visible for the buyer. But if the
subject matter is not visible, its description is necessary. Some ×anafÊ
jurists disagree with this view and hold that description is not necessary
as long as the right of inspection is established for the buyer. By exercising
this right he can reject the object if it does not correspond with the
description. But the proponents of description do not accept this argument.
They say that the right of inspection is given to the buyer only to remove
trivial uncertainty, not the excessive one resulting from leaving a thing

38
ØiddÊq Al-DhorÊr , Al-Gharar fi al-ÑUqËd, vol. 3, Beirut.
Online Contract and the Issues of Gharar and Uncertainty 63

undescribed. An invisible object, therefore, should be described at the

time of the contract, and if some uncertainty still remains, it may be
removed by the exercise of the right of inspection.39
MÉlikÊ jurists regard description of subject-matter obligatory irrespective
of the fact that it is present or absent, visible or invisible.40
Three opinions are attributed to ShÉfiÑÊ jurists: First: the sale is
not valid until a detailed description is given as in a salam sale. Second,
the sale is not valid until relevant attributes are mentioned. Third, the sale
is valid even without mentioning the attributes of the object as long as the
buyer has a right of inspection.
The ×anbalÊ jurists maintain that the sale of an object with
unknown attributes is not permissible.
Regarding this issue, Ahmad Hidayat Buang41 further stressed
that gharar occurs in the sale contract when the seller fails to describe
the character of the subject matter. This non description of the character
of the subject matter normally occurs when it is absent (ghÉ’ib) in the
session of the contract (majlis al-Ñaqd) as the need for the seller to
describe the character of the subject matter mainly arises in this situation.
It can also occur if the buyer has no fair opportunity to see and inspect
the subject matter, even if the subject matter is present in the session of
the contract. For if the sale is concluded in the darkness of night where
the buyer has no opportunity to see and inspect the character of the
object, such a contract is said to be void for want of knowledge in its
character.
Under Common Law, the sale by description is also valid provided
that the goods delivered later must correspond with the description given
earlier. This is stated in section 15 of Malaysian Sale of Goods Act 1957
which provides that:

“Where there is a contract for the sale of goods by

description there is an implied condition that the goods
shall correspond with the description and if the sale is

39
Ibn ÑÓbidÊn, Radd al-MukhtÉr Ñala Durar al-MukhtÉr, vol. 4, p. 29.
40
ImÉm MÉlik, Al-MuwaÏÏÉ’, Vol. 5, Cairo, MaÏbaÑah Al-SaÑÉdah (1332) H,
42.
41
Ahmad Hidayat Buang (2000), Studies in the Islamic Law of Contracts
– The Prohibition of Gharar, p. 117, ILBS, Kuala Lumpur.
64 IIUM LAW JOURNAL VOL. 16 NO. 1, 2008

by sample as well as by description it is not sufficient

that the bulk of the goods corresponds with the sample
if the goods do not also correspond with the description.”

After looking through the various opinions and views from the
Madhhabs and the contemporary jurists it is best to adopt the views from
Ibn Qayyim and Al-SanhËrÊ who have made a systematic category for
the sale of the non existent goods. In this case the issue of gharar can
be finally identified and those two categories which are considered as
fatal only will affect the legality of the online contract.
In online contracts it is best if we can hold that three conditions
must be fulfilled as regards to the subject matter prior to the conclusion
of the contract, to reduce and eliminate gharar. Firstly, the goods must
be viewed through the screen of the computer and if this is not met then
there must be a detailed description of the subject matter which can be
read and understood clearly by the contracting parties Then, if this is
also not met, the buyer should be given the right of KhiyÉr al-Ru’yah
(option of viewing or inspection).
If the requirements are met, then only the possibility of gharar
will be reduced or even eliminated totally especially with the right of
KhiyÉr al-Ru’yah or inspection. Adopting ×anafÊ school as regards to
this three requirements would result in the issue of gharar not becoming
a major issue anymore especially in online contracts. In fact, we can see
that there is not much difference with the rules under Islamic law as
regards to these requirements compared to the position of the subject
matter under the Common law rules on sale of goods. Both laws provide
the right for inspection to the contracting parties in order to avoid future
disputes or in other words to eliminate the element of gharar in the
online contract.