Implementation of Sharia Trade Contract in the Development of the Indonesian E-Commerce Market

By Suparman, Prof Dr Eman; Pranadita, Nugraha | Journal of Legal, Ethical and Regulatory Issues, January 1, 2018 | Go to article overview

Implementation of Sharia Trade Contract in the Development of the Indonesian E-Commerce Market


Suparman, Prof Dr Eman, Pranadita, Nugraha, Journal of Legal, Ethical and Regulatory Issues


INTRODUCTION

This research is related to the legality of Sharia trade contract (akad) in everyday commercial activities, including e-commerce, one of the ten major trends of future economic innovation (James, Penerjemah & Inyiak, 2010). A Sharia trade contract is an agreement between two or more parties to follow or not to follow a particular law in doing business. The driving force behind this is information technology. The development of information technology is attributable to the fact that today more than one billion people use the internet, including social media. In such a rapid growth of information technology, religion, especially Islam has a crucial role to play. Islamic law has entered the Indonesian legal system through the assimilation and harmonization processes of laws. The enactment of the Law No. 1/1974 on Marriage and the Presidential Decree No. 1/1991 on the Compilation of Islamic Law (KHI), the Supreme Court Regulation No. 02/2008 on the Compilation of Sharia Economic Law (KHES) and the Indonesian Council of Religious Scholars (MUI) Instruction No. 1/MUNAS VII/MUI/5/2005 on the Protection of Intellectual Property Rights (IPR) are milestones of the existence of Islamic Law within the national law. Two major elements justify the presence of Sharia principles within the Indonesia law i.e., the philosophical concept Pancasila; "the belief in the one and only God" and the dominance of Islam. The compilation of Sharia Economic Law is a product of Indonesian jurisprudence (zanni) in the field economic. It does not bind every Muslim, but is often referred to in Sharia business transactions. Therefore, Islamic Law plays a crucial role in Ecommerce in particular and within the Indonesia legal system in general. The implement of Sharia trade contract in E-commerce and the prospects of Sharia contract in the development of E-commerce market are the main focuses of this paper.

Understanding of Sharia Trade Contract Agreement

The Arabic word for contract is uqud, the plural form of aqd, which means to 'bind', 'join', 'lock', 'hold' or in other words make a covenant. In Islamic Law, aqd means the combination of offer (Ijab) and acceptance (qabul) which is lawful in accordance with Islamic law. The Ijab is the bidding of the first party, while qabul is the acceptance of the offer mentioned by the first party. To be lawful and legitimate, a Sharia trade contract must meet three conditions namely: 1) Sighah, the statement of ijab and qabul from both parties. This could be written or oral. A sighah must be in harmony with the ijab and qabul; 2) Aqidan: The contracting parties must have reached the legal age (akil-baligh) set by the national law, they must be in a sane state (not crazy) or have reasonable health and must be responsible in acting; and 3) Mahal al-aqd or object of contract such as information, services and products which are not prohibited (Halal) by Sharia. Objects prohibited (haram) by Islamic Law include alcohol, blood, carcasses, pornography and pork. There two bases of the legality of a Sharia trade contract: First, Sahih or legitimacy, which means that all conditions are met, second, batil, which implies that if one of the conditions is not fulfilled then the contract becomes null and void. Effective Sharia contracts are divided into two, namely: Lazim-binding and ghayr al-lazim-not binding. A lazim contract is a contract that cannot be cancelled by one of the parties without the consent of the other while ghayr al-lazim may be cancelled by one party without the consent of the other (INCEIF, 2006). A Sharia trade contract is performed based on the following principles: a) khtiyari/voluntary; every contract is done on the will of the stakeholders to prevent one party from pressuring the other; b) trust/promise keeping; each contract must be executed by the parties in accordance with the agreement established by the parties; c) ikhtiyati/caution; every contract is done with a thorough consideration and executed precisely and carefully; d) uzum/fixed; each contract is done with clear goals and careful calculations, thus avoiding the practice of speculation or analysis; e) win-win solution; each contract is made to meet the interests of the parties so as to prevent the practice of manipulation and harming one party; f) taswiyah/equality; the parties in each contract have equal positions, rights and obligations; g) transparency; each contract is done with the responsibility of the parties openly; h) ability; each contract is done in accordance with the ability of the parties, so it does not become an excessive burden for the concerned; i) aisir/amenity; each contract is done by mutual convenience to each party; j) good intention; contract is done in order to enforce the benefits and does not contain traps or bad deeds; k) in accordance with the national law. …

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