The Problem of Offer and Acceptance: A Study of Implied-in-Fact Contracts in Islamic Law and the Common Law

Every student of Islamic law is familiar with the formation of contract by offer (jdb) and acceptance (qabud). Of the rules of jdb and qabul one can quote Karl Llewellyn\u27s statement about their common law counterparts: they have been worked over; they have been written over; they have been shaped and rubbed smooth with pumice, they wear the rich deep polish of a thousand classrooms. \u27 The apparent prominence of offer and acceptance in the two legal systems, however, should not mislead one into seeing similarity where there is significant difference. Some of these differences are the subject of this paper. This paper will argue two things: one that offer and acceptance play a vastly more important role in the Islamic than in the common law of contract, the other that the Islamic law of contract bears a more significant resemblance to the medieval action of debt than to our modern law of contract. For reasons that will become apparent, this paper will focus on the implied-in-fact contract, that is, the contract formed without an express verbal exchange of offer and acceptance