Its comprehensiveness and validity for every time and place.
It is from God’s grace, generosity, and bounty of giving that he facilitated for people in this age the ways of life and made devices and machines for them to serve them, and bestowed upon them His outward and inward blessings.
{And if you count the grace of God, you will not be able to count it, for God is Oft-Forgiving, Most Merciful.}
We would not be mistaken in truth if we called our age the age of speed, because this label has become a common feature in most of the discoveries and innovations, such as computers, satellites, the information revolution, means of transportation and communication, and others.
Dreams have become realities, ideas become realities, inventions are almost daily and in all fields, and devices of all kinds sometimes run people’s daily work and control them at other times.
And development is not limited to material life only, but also goes beyond that to include economic life, social systems, customs and traditions in a way that human life on this earth has not witnessed in any era.
This change in the lives of individuals and societies due to the tremendous scientific progress, the latest issues and developments that Islamic jurisprudence did not know about, such as medical calamities (such as artificial insemination, cloning and organ donation) and economic calamities (such as the work of banks, stock markets, stock exchanges, and investment funds) and others, which required contemporary scholars to strive to explain Street view.
Among the calamities that need to be researched, rooted, and expressed the opinion of the Lawgiver is what is related to financial transactions in electronic networks or electronic commerce.
After seeking the help of God Almighty and consulting the people of knowledge, I chose the topic (electronic commerce and its rulings in Islamic jurisprudence) as a thesis to obtain a doctorate.
This subject deserves a thorough study, in order to clarify its controls, remove its ambiguities, and clarify its facts.
Despite the rugged road and the lack of references, and the complexity of investigations and issues in various sciences, I went armed with patience and before him, seeking the help of God Almighty.
Reasons for choosing the topic
1- The importance of electronic transactions in our time. The number of those who practice e-commerce via the Internet has reached more than 800 million people, and the total amount spent until the year 2006 AD is about 800 billion dollars, and it is expected that this amount will double in the coming years. For this it was necessary to explain its provisions a clear statement.
2- The absence of a scientific jurisprudential study on this subject, and I did not find - according to what I have seen - a specialized jurisprudence study in the field of electronic commerce.
3- Attempting to highlight the supremacy of Islamic Sharia and its validity for application in every time and place and in every age and time, and that it is capable of judging changes and dealing with developments, whatever they may be, as it is an eternal divine law (Does he not know who is created, and He is the Kind and the Expert) ().
4- This topic includes contemporary jurisprudence topics that have not been previously discussed, such as: buying and selling websites, electronic auctions, and the legal rules for dealing in shares via the Internet, electronic money and electronic checks.
All these issues and others that arise during the research need to be rooted and legalized.
5- This topic (electronic commerce) opens the way for more studies and future research to be written about it - God Almighty willing - because of its ability to develop and judge new developments.
Objectives of the topic
1- Familiarity with the concept of electronic commerce, its types and fields, and the relevant jurisprudence rulings.
2- Explanation of the Sharia ruling on issues related to electronic commerce.
3- Strengthening the role of Islamic jurisprudence in the lives of contemporary people, and its ability to deal with emerging issues.
4- Establishing legal controls for electronic commerce that are free of legal prohibitions, so that it is a starting point for electronic commerce in accordance with the provisions of Islamic Sharia.
Research and studies related to the topic:
First: Jurisprudence Research: Some contemporary researchers have exposed some of the legal rulings for electronic commerce through two papers presented to the nineteenth Dallah Al-Baraka Symposium on Economics and Islam held in Makkah Al-Mukarramah: 6-7 Ramadan 1421 AH corresponding to 2-3 December 2000 AD, entitled: Fiqh rulings for dealing with the Internet (electronic network ) .
The first research: by Sheikh Dr. Nizam Yaqubi
The second research: by Dr. Muhammad Daoud Bakr
I will give a brief presentation of these two studies:
The first research: Fiqh rulings for dealing with the Internet (electronic network) by Sheikh Dr. Nizam Yaqubi.
The research that I reviewed is handwritten because the researcher arrived at the symposium late and was unable to print the research. It contains 29 pages, and did not divide it into chapters and sections, but divided it into several points, and here is its statement:
1- After the introduction, the researcher was exposed to the widespread use of the Internet, where the researcher indicated that the Internet users - daily, are no less than 200 million people, and their purposes vary. And bonds, or the purchase of various goods and services, which is known as (electronic commerce).
2- The volume of electronic commerce: where the researcher indicated that the volume of electronic commerce through the Internet has increased to about 300 billion US dollars by the year 2001 AD, and it is expected that it will jump to more than that in the coming years, as it is a huge market unprecedented in human history .
3- Benefits and advantages of e-commerce: The researcher pointed out several advantages, including the ease of concluding deals and the ease of the transaction process...etc.
4- Sharia and legal provisions of the Internet: The researcher referred to the symposium that was held at the College of Sharia and Law in the United Arab Emirates from 1-3 May in Al-Ain, and mentioned the most important legal issues that can be discussed in the subject of legal provisions for the Internet, which are complex, such as the preservation and confidentiality of information, and information encryption e-commerce and others.
5- Some of the problems of contracts in international trade via the Internet: He defined electronic commerce legally and the advantages of the most correct definition in his view, such as the absence of a physical contract board between the parties at the moment of mutual consent, and that its parties are located in different countries and implement their commitment electronically across the borders of those countries, and the problems they face.
6- Provisions of electronic contract contract The researcher exposes some of the important peculiarities of this contract that distinguish it from others, such as offer and acceptance and what is related to them, and the eligibility of the contracting party, as he indicated that the nature of the Internet makes it very difficult to know the eligibility of the contracting party, his age, and so on.
He also referred to the subject of the contract, which was signed by the contract and its conditions according to the jurists.
Then he referred to the requirement that the shop be known to the contracting parties and the extent of its applicability on the Internet.
7- Some collective jurisprudence: The researcher referred to the scientific symposium that was held at the Saleh Kamel Center for Islamic Economics at Al-Azhar University on March 23, 2000 AD to study the dimensions of electronic commerce and the position of Islamic Sharia regarding it, where I concluded that this type of trade is fully compatible with the principles and rules of the noble Islamic Sharia. The researchers in this symposium examined the legality of electronic commerce by returning it to the fundamental principles and universal rules in Islamic Sharia.
The second research: Fiqh rulings for dealing with the Internet (electronic network) prepared by: Muhammad Dawood Bakr. It is the second research presented to the nineteenth Dallah Al-Baraka Symposium on Islamic Economics. Dr. Muhammad Dawood Bakr is the Dean of Graduate Studies at the Islamic University of Malaysia. The research is printed in 21 sheets.
The most important issues addressed in this research are:
1- He referred in the introduction to the importance of dealing with electronic commerce in this era, and the progress of modern technological discoveries that facilitated the ways in conducting commercial transactions, and he drew attention to the importance of clarifying the legitimate vision on electronic commerce.
2- The legal structure of contracts via the Internet: where the researcher indicated that Islamic Sharia does not require a specific method in itself to express the offer and acceptance, so the conclusion of any contract takes place when an element of the offer and acceptance is achieved through any method.
3- The offer in contracts for the Internet: The researcher referred to the definition of the Judicial Judgment Journal of the offer, and his opinion about the application of this definition to contracts via the Internet, how acceptance is achieved, the place and time of the meeting of the seller and buyer and the jurisprudential trend that can be compatible with electronic contracts or contracts via the Internet.
4- Acceptance in electronic contracts: The researcher explained the method of acceptance through electronic contracts such as e-mail, fax, or regular mail, and the seller should explain to his customers how they accept any offer.
5- The choice of the council in contracts according to those who say it: where the researcher indicated that the choice of the council in contracts concluded via the Internet does not end with the arrival of the notification message, nor with the arrival of the acceptance message from the acceptor to the electronic party of the offeror, but it ends when the offeror opens and reads the electronic message and does not respond by acceptance.
6- The subject of the contract via the Internet with a focus on financial tools in Islamic banks: The researcher indicated that there are no legitimate obstacles to the process of depositing via the Internet or dealing with speculation via the Internet, or participation, or leasing, or other contracts conducted by Islamic banks.
7- Consideration or price in online contracts: The researcher explained that payment of the price is usually done by credit card, electronic payment or electronic transfer, as the case may be. Immediate and urgent.
8- The eligibility of the contracting parties in contracts via the Internet: The researcher indicated that it is not possible to identify the customers easily, and it is legally established that the lack of visibility has nothing to do with the validity or absence of contracts.
9- Choosing the law on which contracts are conducted over the Internet: This issue is one of the most important issues. On which law resolves the dispute, the law of the seller or the buyer? Plaintiff or Defendant?
10- Ways to pay the price: The researcher indicated that there are several ways to pay the price via the Internet, such as credit card, instant payment, wire transfer and so on.
These are the most important themes in these two research papers, and they are apparently very brief because they were written for a specific occasion and did not focus on many e-commerce issues.
Second: Legal books and studies:
A- books:
1- The subscription contract in the databases via the Internet "An applied study of international trade contracts". Written by: Dr. Farouk Ahmed Al-Abasiri, I, New University House, Alexandria.
The book is divided into two parts: The first part: Existence of the contract
In the first topic, he spoke about the role of consent in the legal existence of the contract and the sufficiency of consent, the concept of consent in international contracts, how to exchange consent over the Internet, the inadequacy of consent for the existence of an electronic arbitration clause and the extent to which an electronic document is considered as writing for the existence of electronic arbitration.
He dealt with resorting to framework agreements to confront problems related to the technical nature of the Internet, and the researcher dealt with technical and legal conditions, rules for exchanging messages and establishing an electronic archive, and resorting to electronic signature to face problems.
The second topic: protecting the existence of the contract in the face of problems related to the technical nature of the Internet.
Section Two: Execution of the contract and dealing with the obligations of the supplier, the obligations of the customer, characteristics of electronic payment, types of electronic payment, the Internet and methods of private international law, defining the law of the contract, the role of international electronic rules in resolving disputes related to the subscription contract in the electronic information base, protection of personal information, and the application of Dispatch Act for copyright protection.
2- Criminal protection of commerce (electronic comparative study)
Written by: Medhat Abdel Halim Ramadan. Faculty of Law, Cairo University, I, Dar Al-Nahda Al-Arabiya - Cairo
The book includes an introduction, a preface and three chapters: In the introduction, the researcher talked about the definition of e-commerce in European laws.
Chapter One: Criminal Protection of E-Commerce Websites on the Internet and its Contents, and it contains three chapters.
Chapter One: Criminalization of Unlawful Access to Internet Sites.
Chapter Two: Protecting the contents of e-commerce websites in light of intellectual property protection laws.
Chapter Three: Criminalization of E-Commerce Attack.
Chapter Two: Criminal Protection of Personal Data, which includes two chapters:
Chapter one: Criminal protection of data in French law.
Chapter Two: Criminal Protection of Data in Egyptian Law.
Chapter Three: Criminal Protection for Financial Transactions by Electronic Commerce.
Chapter One: Criminal Responsibility of Internet Intermediate Service Providers
Chapter Two: Crimes of assault on money and electronic commerce.
B - Legal Investigations: They are many and varied, such as the UNCITRAL Law of the United Nations Al-Sadr in 1996 AD, the Italian E-Commerce Law issued in 1999 AD and the Irish Electronic Trade Law issued in 2000 AD.
C - Dozens of articles on Internet sites such as: Yahoo, Aina, Islam Online... and others.
D - Researches of the symposium "Law, Computer and the Internet" held at the College of Sharia and Law in the United Arab Emirates from 1-3 May 2000 in Al-Ain.
His research has been collected in two huge volumes, the most important of which are:
1- International electronic commerce via the Internet: its concept, the legal rules that govern it and the extent of the authenticity of the outputs in proof. Dr. Mohammed Al-Sayed Arafa.
2- The Internet and Private International Law: Separation or Convergence? Doctor: Ahmed Abdel Karim Salameh.
3- The privacy of contracting through the Internet, Dr. Osama Abul-Hassan Mujahid.
Research Methodology :
My approach to research is summarized in the following points:
1- Describe the issue to be discussed in a precise way before explaining its ruling, so that the purpose of studying it becomes clear.
2- If the issue is one of the areas of agreement, then mention its ruling with its evidence, while documenting the agreement from its considered considerations.
3- If the issue is one of the issues of disagreement, then follow the following:
A - Editing the subject matter of the dispute, if some forms of the issue are in dispute and some are subject to agreement.
B - Mentioning the sayings on the issue, and clarifying those who said them from among the scholars, and the presentation of the dispute is according to the jurisprudential trends.
C - Restriction to the reputable schools of jurisprudence, while taking care to mention what is easy to find from the sayings of the righteous predecessors.
D - Documenting the sayings from the books of the same sect.
E - Exploring the evidence of the statements, explaining the significance, and mentioning the discussions that come to it, and the answers to it, if any.
F- The graduation, with an explanation of its reason, and the fruit of the dispute, if any.
4- Relying on the mothers of the original sources and references in editing, documenting, extracting and collecting.
5- Focus on the topic of research and avoid digression.
6 - Paying attention to examples: especially realism.
7- Avoid mentioning abnormal sayings.
8- Paying attention to the study of the major issues that are clearly related to the research.
9 - Numbering the verses and clarifying their surahs.
10 - Graduation of hadiths and a statement of what the people of concern mentioned in their degree - if they are not in the two Sahihs or one of them - if they are like that, then it is sufficient to extract them.
11- Extracting antiquities from their original sources, and judging them.
12- Defining the terms and explaining the strange.
13- Taking care of Arabic grammar, spelling and punctuation marks.
14- The conclusion is a summary of the thesis, giving a clear idea of the contents of the thesis, highlighting the most important results.
15 - A translation of the famous flags.
16- Following the thesis with the generally accepted technical indexes, which are:
■ Index of Quranic verses.
■ Index of hadiths and antiquities.
■ Index of references and issued.
■ Index of Topics.
■ Index of flags.
research plan
The research plan consists of an introduction, a preface, five chapters, and a conclusion.
The introduction includes: the importance of the topic, the reasons for choosing it, previous studies, and the research method and plan.
Introduction: Presentation of contemporary trade methods and methods.
It contains two topics:
The first topic: the importance of contemporary trade.
The second topic: the changes that have occurred.
The first Door
Introducing networks and e-commerce, its types and fields
It has two chapters:-
Chapter one: Defining the electron and electronic networks and their types.
It contains two topics:
The first topic: the definition of the electron.
The second topic: types of electronic networks.
It has four requirements:
The first requirement: local networks.
The second requirement: city networks.
The third requirement: wide area networks.
Fourth requirement: Definition of the World Wide Web (Internet) and the date of its inception and the services provided on it.
Chapter Two: Defining e-commerce, its types and fields.
It contains four topics:
The first topic: the definition of e-commerce and the history of its inception.
It has two requirements:
The first requirement: the definition of e-commerce.
The second requirement: the history of its inception and development.
The second topic: the characteristics of e-commerce.
The third topic: the elements of electronic commerce.
Fourth topic: E-commerce fields.
Chapter Two
Ruling on electronic contracting and its form
It has four chapters:-
Chapter one: the rule of electronic contracting.
Chapter Two: Electronic Contract Form.
It contains six topics:
The first topic: How to conduct contracts electronically and write the offer and acceptance in them.
The second topic: matching the acceptance with the offer.
The third topic: the acceptance of the offer.
The fourth topic: the ruling on the conditional connection of acceptance with the offer.
The fifth topic: the beginning and end of the contract council.
The sixth topic: electronic signature and its impact on the contract.
Chapter Three: Electronic Auctions.
It contains four topics:
The first topic: her image.
The second topic: inspection of the commodity.
The third topic: the ruling on taking fees for auctions electronically.
It has two requirements:
The first requirement: fees for listing in electronic auctions.
The second requirement: the final value fee.
Fourth topic: Sharia controls in electronic auctions.
the fourth chapter
Sales attribute, types of options and their application in electronic contracting
It contains nine topics:
The first topic: the option to return from the affirmative
The second topic: the option of acceptance
The third topic: the choice of the council
The fourth topic: the option of the condition
The fifth topic: the option of vision
The sixth topic: the option of the defect
The seventh topic: A choice behind the adjective
The eighth topic: the option of fraud
The ninth topic: the presence and absence of the sale in electronic contracting
Chapter Three
The two contractors in electronic contracting
It contains three chapters:-
Chapter One: Eligibility.
It contains two topics:
The first topic: the requirement of eligibility in the two contracting parties.
It has three requirements:
The first requirement: the rule of the contract of the minor.
The second requirement: the rule of the unknown contract.
The third requirement: the rule of the automatic contract.
The second topic: How to verify eligibility.
Chapter Two: Obligations of Contractors.
It contains two topics:
The first topic: the obligations of the seller electronically.
The second topic: the obligations of the buyer electronically.
Chapter Three: Disagreement between the electronic contracting parties and the method for settling disputes.
It contains three topics:
The first topic: Pictures of the dispute between the two parties electronically.
The second topic: the place of litigation and its reference.
The third topic: How to resolve the dispute.
Chapter Four
Contracted in electronic contracting.
It contains three chapters:-
Chapter One: The Appraiser.
It contains five topics:
The first topic: the definition of the appraiser, its conditions, and the types of goods in electronic contracting.
It has three requirements:
The first requirement: the definition of the appraiser.
The second requirement: the conditions of the appraiser.
The third requirement: types of goods in electronic contracting.
The second topic: movable goods and real estate.
It has two requirements:
The first requirement: transported goods.
The second requirement: real estate.
The third topic: electronic goods.
It has four requirements:
The first requirement: What is meant by electronic goods and their types.
The second requirement: buying and selling personal names, trademarks, and domains.
It has two issues:
The first issue: his image.
The second issue: his ruling.
The third requirement: buying and selling web pages
It has two issues:
The first issue: its image.
The second issue: its ruling.
