Formation of Life Insurance/Family Takaful Contracts

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1 Formation of Life Insurance/Family Takaful Contracts Abstract Yusuf Sani Abubakar* * PhD candidate at Faculty of Law Universiti Kebangsaan Malaysia. This is a doctrinal and comparative research between the traditional law and the Shariah with regard to formation of life insurance/family takaful contracts. It has been found that under both the traditional law and the Shariah in order to have a valid contract of life insurance and family takaful, there must be separate and definite parties thereto; these parties must be in agreement that is consensus; and offer and acceptance. Again, under both systems, writing contract is not compulsory, but it is strongly encouraged. Also, offer under both systems must be definite, and the offer must be communicated. Moreover, it is allowed under both systems to revoke the offer. Furthermore, acceptance of offer must be communicated which must be absolute. In addition, if there is a prescribed mode of acceptance, it must be complied with. It is also a requirement that communication of acceptance must correspond with the offer. Keywords: Contract, offer, acceptance, takaful, insurance, parties 1. Introduction This research would look into the formation life insurance/family takaful contracts insurance and draw a comparison between them. The research covers requirements; parties; specified event; writing contract; enforceability of the contract; and offer and acceptance (which includes Requirements of a valid offer, Communication of offer, Revocation of offer, Acceptance of offer, Mode of acceptance and Communication of acceptance must correspond with the offer). 2. Requirements Under life insurance, to constitute a valid contract there must be separate and definite parties thereto; these parties must be in agreement that is consensus; those parties must intend to create

2 legal relations in the sense that the promises of each side are to be enforceable simply because they are contractual promises and promises of each party must be supported by consideration. 1 Specifically, a life insurance contract has been defined as a contract whereby the insurer undertakes for a consideration (which is the premium) to pay money (the sum insured) to or for the benefit of the insured when a specified event happens, where the aim of the insured is to make available for himself or others at some date in the future, or for others when he dies. 2 Under family takaful, based on the Shariah, it is a requirement that in order for a contract to be valid, there must be an offer and acceptance from the contracting parties. Thus, it is very significant to identify who are these contracting parties that exchange offer and acceptance in family takaful operation. Essentially, after the creation of the takaful portfolio and placement of participation, an implied exchange of offer and acceptance will then arise between the members of the takaful participants regarding the management. The operator will then arrange contracts, agreements and agree on the amount of contribution and indemnity on the participants behalf. As a result of the offer and acceptance, the operator has been empowered to invest the amount of contribution in line with the adopted model by the operator. 3 Usually the offer and acceptance are forms which are normally filled by the participants. This is acceptable from the shari ah perspective because it does not go against the principles of shari ah and most importantly it serves the interest of the contracting parties. 4 And Contribution paid by the participant in a family takaful contract is considered as a monetary consideration 5. Therefore, both the Shariah and the traditional law agree with each other pertaining to the requirements of life insurance and family takaful contracts. 1 V.C. George J. In Sri Kajang Rock Products Sdn Bhd v Maybank Finance Bhd [1992] 1 CLJ Houseman & Davis, the Law of Life Assurance 11 th ed. P. 1 3 Dr. M.B. Arbouna cited from Hassan, Hussain Hamid, al-ta min Ala al-hayat, Hawliah Albaraka, December 2000, pp Dr. M. B. Arbouna, Regulation of Takaful Business: A Shari ah Overview of Contractual Aspects of Takaful Models, In Dr. Mohd Daud Bakar & Dr. Engku Rabi ah Adawiah Engku Ali (ed.) Essential Readings in Islamic Finance, CERT Publications Sdn Bhd, Kuala Lumpur, 2008, p Musa, Mohamad Yusuf, The Liberty of the Individual in Contracts and Conditions According to Islamic Law, Islamic Quarterly, 2:1, 1955,p

3 2.1 Parties Parties refer to those involved in an insurance or takaful contract. The parties in insurance are insurer and insured, whereas in takaful they are operator and participant. Generally, the parties under insurance and takaful are governed by the principles of contract under both the traditional law and Shariah. Thus, the discussion in this part will be mainly on the law of contracts under both the traditional law and the Shariah Insurer/operator Virtually, an insurer is the entity that carries out insurance business and insures the insured in case of occurrence of any risk of injury or loss. Just like other businesses, for the insurer to operate legally, registration is required. 6 Similarly, section 4 (2) of the Takaful Act requires that any person who wants to carry on family solidarity business general business or both in Malaysia as an operator to be registered. According to the Islamic Financial Services Act 2013, no person shall carry on any authorized business unless it is licensed by the Minister, on the recommendation of the Bank, under section 10 to carry on Islamic banking business, takaful business, international Islamic banking business or international takaful business. 8 According to Arbouna, the operator under takaful obtains legal capacity by virtue of its authorization license to carry on the takaful business. 9 However, the operator s duty is not insuring as takaful is different from insurance in the sense that the participants are not insured, but they enter into the agreement between themselves to help each other at the time of difficulty. In the contract, the rights and obligations of the parties to 6 See ss 9(1) (a) and 10 of the Insurance Act S 4 (2) of the Takaful Act Part III, Paragraph 8. (1) of the Islamic Financial Services Act Dr. M. B. Arbouna, Regulation of Takaful Business: A Shari ah Overview of Contractual Aspects of Takaful Models, In Dr. Mohd Daud Bakar & Dr. Engku Rabi ah Adawiah Engku Ali (ed.) Essential Readings in Islamic Finance, Kuala Lumpur: CERT Publications Sdn Bhd, 2008, p. 215

4 the contract are clearly spelled out. 10 Therefore, it is observed that the traditional and the Shariah agree with each other with regards to the issue of registration before operating the business of insurance/takaful. Furthermore, under the traditional law, as a consequence for contravening the law, any insurer found operating without license shall be punished with imprisonment for ten years or a fine of ten million ringgit or both together with default penalty if convicted. 11 The Takaful Act 1984 mentions that an operator that carries out takaful business without license shall be liable to a fine not exceeding eighty thousand ringgit or to imprisonment for a term not exceeding twelve months or both. 12 According to the Islamic Financial Services Act 2013, any person who operates without license commits an offence and shall, on conviction, be liable to imprisonment for a term not exceeding ten years or to a fine not exceeding fifty million ringgit or to both. 13 It is observed that the punishment provided under the Islamic Financial Services Act 2013 pertaining to operating without license is harsher than that which was provided under the Takaful Act This is actually a big development as there was no basis for making the punishment for failure to obtain license before practicing insurance harsher than that of takaful. Again, under the traditional law, an insurance contract by an unlicensed insurer is void and unenforceable 14 and the policyowner can claim for return of the premiums if he was not aware of the illegality at the time of entering into the contract, 15 or claim for compensation if he incurred 10 M. Billah, Applied Takaful and Modern Insurance Law and Practice, 3 rd Ed., Sweet & Maxwell Asia, Malaysia, 2007, pg Section 9 of the Insurance Act Section 4 (5) of the Takaful Act Part III, Paragraph 8. (3) of the Islamic Financial Services Act Phoenix General Insurance Co. of Greece SA v Administratia Asigurarilor de Sat [1987] 2 All E.R ; Fuji Finance v Aetna Universal Life [1996] 4 All E.R. 608; Section 2 (1) of the Insurance Companies Act 1974 (U.K) (now 1982); section 9 of the Insurance Act Section 66 of the Contracts Act 1950; Section 65 of the Indian Contracts Act 1872; Ng Siew V Menaka [1973] 2 MLJ 154; Sivaramakrishnaiah v Narahari Rao [1960] AIR Andh. Pra. 186

5 any loss or considers the contract as enforceable if he so wishes. 16 This issue arose in the case of Phoenix General Insurance Co. of Greece SA v Administratia Asigurarilor de Sat 17 where it was decided that contracts that are concluded by unauthorized insurers are prohibited because of contravening the law and ought to be held void. It has been suggested that the decision in Phoenix s case would be relevant in Malaysia since Section 2 (1) of the Insurance Companies Act 1974 (U.K) (now 1982) is similar to section 9 of the Insurance Act Hence, in Malaysia any insurance contracts entered into by unlicensed insurers should prohibited, void and unenforceable 18 and the insurer should be punished based on the provisions of the law. It is submitted that under takaful, the contract should also be void and unenforceable because it has been induced by an unauthorized person. This is because Islamic government based siyasah shar iyyah (Public policy) 19 may decide that a contract would be held void and illegal if the operator carries out the takaful business without license. However, remedies for breach of contract are restricted to direct and actual damages. The courts under Islamic law do not recognize economic loss of chance, interest, potential profits and other speculative awards that normally might be given. 20 Thus, the position of the traditional law and the Shariah are the same as both parties may claim the return of the premiums/contributions, but the Shariah does not recognize economic loss of chance, interest, potential profits and other speculative awards. Moreover, in the UK, the policyowner in the life insurance which is held as void and illegal has the right to consider the contract as enforceable or not. Where he decides to treat the 16 Section 132 of the Financial Services Act 1986 (U.K.) 17 [1987] 2 All E.R ; Fuji Finance v Aetna Universal Life [1996] 4 All E.R S. S. Dass, Law of Life Insurance in Malaysia, Alpha Sigma Sdn Bhd, Malaysia, 2000, p M. H. Kamali, Siyasah Shar iyah or the Policies of the Islamic Government, The American Journal of Islamic Social Sciences, Vol. 6, No. 1, Gayle E. Hanlon 2009, International Business Negotiations in Saudi Arabia, in James R Silkenat, Jeffrey M. Aresty & Jacqueline Klosek eds., The ABA Guide to International Business Negotiations, Chicago, Illinois: American Bar Association

6 contract as enforceable, he has the right to claim for the return of the premium, and can also claim for compensation if he incurred any loss as a result. 21 In Malaysia, the insured in a life policy has the right to claim for the return of the premium provided that at the time of entering into the contract, he was not aware of the illegality. This is because only parties that are unaware of the illegality at the time of concluding the contract can seek restitution 22 but where both parties are aware of the illegality at the time of entering into the contract, none of them can claim for relief. 23 Under the family takaful, it is submitted that in all situations, the participant where the contract is held as illegal and void shall have the right to claim the return of the contributions he paid because the operator is not entitled to hold the paid contributions for its own benefit, but the contribution is for the participant and ought to be returned to him Insured/participant Under life insurance, an insured is the person whose life is insured by life insurance, after whose death the benefits go to others. 24 As per as legal capacity of the insured to enter into a contract is concerned, though according to the general rule of contract only a person who reaches the age of majority can enter into a contract 25 there is an exception with regard to insurance contracts. Generally, a person is said to have reached the age of majority when he reaches eighteen years of age. 26 For insurance contracts, a minor of sixteen years has been empowered to enter into a contract of life insurance for his own life or another. He may also assign the policy on his own life. 27 Furthermore, a minor who reached the age of ten years but below the age of sixteen, with of the Financial Services Act 1986 (U.K.) 22 Section 66 of the Contracts Act; Ng Siew V Menaka [1973] 2 MLJ Soh Eng Keng v Lim Chin Wah [1979] 2 MLJ 91; Wong Yoon Chai v Lee Ah Chin [1981] 1 MLJ Section 11 Contracts Act Section 2 of the Age of Majority Act Section 153 (2) of the Insurance Act 1996

7 the written consent of his parent or guardian, he can conclude a life insurance contract on his own life or the life of another. He may also assign the life policy on his own life. 28 Under family takaful, Participants are persons that participate in any family takaful contract. 29 According to the Shariah, the contracting parties are one of the important elements of a contract. Islamic laws presume that people have capability to decide on their own by evaluating, negotiating and trading on that capacity. Generally, the Shariah only allows a minor to manage his own property after reaching the age of rushd. 30 Majority of the Islamic Jurists are of the opinion that a minor reaches the age of rushd at the age of However, Islam also recognizes people without such capabilities and handicaps in nature therefore it provides appropriate rules in respect of the protection of such group of people. They may conclude the contract by appointing someone as his agent to perform the contract on his behalf. For a minor who has not attained full legal capacity, a guardian may conclude the contract on his behalf. 31 According to the Islamic Financial Services Act 2013, a minor who has attained the age of ten but has not attained the age of sixteen years, with the consent in writing of his parent or guardian may participate in a family takaful arrangement in respect of a family takaful certificate upon his life or upon the life of another person in which he has a permissible takaful interest. And a minor who has attained the age of sixteen years may participate in a family takaful arrangement in respect of a family takaful certificate upon his life or upon the life of another person in which he has a permissible takaful interest. 32 Thus, the traditional law and the Shariah are in harmony 28 Section 153 (1) of the Insurance Act M. Billah, Applied Takaful and Modern Insurance Law and Practice, p O Sullivan, J. and Hilliard, J The Law of Contract, New York: Oxford University Press; also Kool, Chin Nam A comparative study of Islamic law and civil law in Malaysia on contract, arbitration, banking principles and documentation. Petaling Jaya, Kuala Lumpur: International Islamic University Malaysia. 31 Zuhaily, Wahbah Al-Fiqhul Islamiy Wa Adillatuhu, p. 122; Sanhuri, Abdul Razak Ahmad Syarh Qanun Al-Madaniy, p Schedule 8, Section 140, Paragraph 4(1) &(2) of the Islamic Financial Services Act 2013

8 pertaining to the capacity to contract as both systems allow a minor to enter into a contract of insurance/takaful. Again, under life insurance, persons of unsound mind are not allowed to enter into a contract because they lack the competence to do that. 33 Under the Shariah, persons of unsound mind cannot enter into a contract and any contract entered by such persons is void 34 and hence persons of unsound mind shall not be allowed to enter into a contract of family takaful. Moreover, a drunken person who is not capable of understanding the terms of a contract, or cannot form a rational judgment regarding its effect to his interest has no capacity to enter into a contract of life insurance while at the state of the drunkenness. 35 The position of a drunken person with regard to contractual capacity is the same with that of mentally-disordered person. A contracts entered by a drunken person can be ratified when he becomes sober. Under the Shariah, according to Hanafi School of Law, a contract concluded by a drunken person is valid and enforceable. However, according to the Shafi i School of law, such contract is not valid because reason is a condition in transactions and a drunken person has lost the faculties of reasoning at the time of concluding the contract. 36 Moreover, under life insurance, a seriously ill person is not allowed to conclude a contract. 37 Similarly, under family takaful, it has been submitted that a person will also be deprived from entering into a contract if he is found to be seriously ill. However, the ill person can be permitted to buy a policy if he is under the care of natural guardians (especially parents). 38 Also, under life insurance, a bankrupt can enter into contract of life insurance and enjoy its benefit 33 section 12 of the Contracts of Act A. Kharofa, Transaction in Islamic Law, pp Illustration (b) of Section 12 of the Contracts Act A. Kharofa, Transaction in Islamic Law, p Illustration (b) to section 12 of the Contracts Act M. Billah, Applied Takaful and Modern Insurance Law and Practice, p. 110

9 but provided the insurers are dealing with the bankrupt bona fide before the intervention of the Official Assignee, because after the intervention, the policy money will be payable to the Official Assignee. However, if the Official Assignee does not intervene, the policy and its benefits will continue to be in favour of the bankrupt. 39 Under family takaful, it has been suggested that a bankrupt should be banned from entering into a contract as he is not capable of giving contributions regularly due to his bankruptcy Specified event Under life insurance, it is a requirement that the specified event, which is death, must carry some element of risk or uncertainty at the time of the conclusion of the contract. 41 The contract in conventional insurance is based on the principles of exchange of mutual interest. The relationship is formed in a way where the insured will pay premiums and in exchange the insurer provides protection against the insured risk. This appears to be a form of sale contract on uncertain event and this is not in line with Islamic principles of exchange contracts. Under family takaful, the contract is based on the principles of donation where elements of gharar and uncertainty are tolerated because they do not affect contract of charity. The donation idea has changed the relationship of the operator and the participants from mere paying premium in exchange for indemnity to investment and management relationship. 42 Therefore, the Shariah differs with the traditional law as although, it allows uncertainty but it is because the contract is based on donation where gharar is tolerated Writing contract 39 S. S. Dass, Law of Life Insurance in Malaysia, p M. Billah, Applied Takaful and Modern Insurance Law and Practice,, p Prudential Insurance Co v IRC [1904] 2 K.B 42 Dr. M. B. Arbouna, Regulation of Takaful Business: A Shari ah Overview of Contractual Aspects of Takaful Models, In Dr. Mohd Daud Bakar & Dr. Engku Rabi ah Adawiah Engku Ali (ed.) Essential Readings in Islamic Finance, CERT Publications Sdn Bhd, Kuala Lumpur, 2008, p. 222

10 Under life insurance, in common law there is no requirement that the contract of life insurance must be in writing or evidenced in writing. 43 Moreover, under the Act Insurance Act 1996, a contract of insurance must not be in writing; also it is not a pre-requisite for the validity of the insurance contract the issuance of the policy. Once the policy is issued it is then considered that a contract has taken place between the parties. Moreover, there can also be a contract even if the policy is not issued. Hence, even oral contract of insurance is within the definition of an insurance policy. 44 Under family takaful, it is suggested that it should depend on agreement between the participants and the operator. If the agreement states that the contract must be in writing then it has to be. Moreover, if the contract is considered to commence after the issuance of the policy, then the policy has to be issued before the contract can come into force. This is because of the Maxim that says The Contract is the Law of the Parties. This means that parties to a contract are free to agree on the terms of the contract so long as these terms are not against established principles of Islamic law. Moreover, in Islam the origin of everything is lawful unless an authority proves one unlawful 45 and Muslims are bound by their conditions except the one which prohibits the permitted one or permits the prohibited one 46. This means that parties to a contract are free to agree on the terms of the contract so long as these terms are not against established principles of Islamic law. An offer and acceptance can be verbal where an the contract is for an immediate sale; but where the sale is taking place in a future time; it is advisable that the terms of the offer and acceptance should be in written in order to avoid any 43 S. S. Dass, Law of Life Insurance in Malaysia, p Ibid, p Suyuti, Al-Imam Jalaluddin Abd. Rahman, Al-Ashbah Wa-al-Nazair, Darul Kutub al-alamiyyah, Lebanon, 1983, p At Tirmizi, as quoted by Shaikh Jad al-haq Ali Jad al-haq, al-tameen alal Hayati Gairu zaizin, in al- Iqtisadul Islami, p. 60.

11 ambiguity and it is the best way of making offer and acceptance. 47 Therefore, the Shariah agrees with the traditional law in that a writing contract is not a requirement but is strongly encouraged. 2.3 Enforceability of the contract Under life insurance, the contract is enforceable if premiums are paid. However, if the premiums are not paid the insurer cannot sue the policyowner for non-performance of contract. 48 Under family takaful, also if the participant in a family takaful contract is unable to settle the payment of the agreed contributions in the contract, the operator should neither penalize the participant nor forfeit the policy, but the operator should give the participant a reasonable time extension in order to be able to settle the unpaid contributions, and the contract should remain enforceable, based on the agreed terms and conditions. 49 Thus, like life insurance under family takaful the operator cannot sue the participant for non-performance of contract if contributions are not paid. 2.5 Offer and Acceptance Based on the Shariah, just like the traditional law, it is a requirement that in order for a contract to be valid, there must be an offer and acceptance from the contracting parties. Essentially, after the creation of the takaful portfolio and placement of participation, an implied exchange of offer and acceptance will then arise between the members of the takaful participants regarding the management. The operator will then arrange contracts, agreements and agree on the amount of contribution and indemnity on the participants behalf. As a result of the offer and acceptance, the operator has been empowered to invest the amount of contribution in line with the adopted model by the operator. 50 Usually the offer and acceptance are forms which are normally filled by the 47 A. Kharofa, Transaction in Islamic Law; also Dr. Md. Abdul Jalil, Islamic Law of Contract is Getting Momentum, International Journal of Business and Social Science, Vol. 1 No. 2, November S. S. Dass, Law of Life Insurance in Malaysia,, p M. Billah, Applied Takaful and Modern Insurance Law and Practice, p Dr. M.B. Arbouna cited from Hassan, Hussain Hamid, al-ta min Ala al-hayat, Hawliah Albaraka, December 2000, pp

12 participants. This is acceptable from the shari ah perspective because it does not go against the principles of shari ah and most importantly it serves the interest of the contracting parties Requirements of a valid offer Under life insurance, in order to have a valid offer the following requirements must be available: it is an important requirement of a legally binding contract that it must be definite. Accordingly, if an offer is such indefinite in that the promise is not easily ascertained, the offer cannot be said to be legally binding. 52 Under family takaful, a valid contract requires that the subject matter should be defined clearly. The subject- matter of contract might be tangible goods, usufructs and services. In takaful operation, the subject-matter depends on the different relationships. With regard to contributions and participants, the subject-matter is considered as cooperation between a group of people who carry common risk and are aiming to minimise the effect of the risk. Here the explanation of the subject-matter may be as follows: (a) the mutual cooperation between the participants is the amount of contribution paid by each participant. The participants can pay the contribution in a lump sum or by installment and the payment is done only once during the period of takaful. By paying the contribution, a participant will be qualified to become a member. By this, the participant impliedly understands to accept some procedures regarding donation to other members in case of occurrence of risk. Hence, the participants enter into contract with the operator who is the representative of the takaful fund to become members. (b) The payment made by the operator on behalf of the participants to a member who happens to suffer from risks. 53 (c) As for the operator and the underwriting, the subject-matter is payment of fees and providing services. On 51 Dr. M. B. Arbouna, Regulation of Takaful Business: A Shari ah Overview of Contractual Aspects of Takaful Models, In Dr. Mohd Daud Bakar & Dr. Engku Rabi ah Adawiah Engku Ali (ed.) Essential Readings in Islamic Finance, CERT Publications Sdn Bhd, Kuala Lumpur, 2008, p S. S. Dass, Law of Life Insurance in Malaysia, p Dr. M. B. Arbouna, Regulation of Takaful Business: A Shari ah Overview of Contractual Aspects of Takaful Models, In Dr. Mohd Daud Bakar & Dr. Engku Rabi ah Adawiah Engku Ali (ed.) Essential Readings in Islamic Finance, CERT Publications Sdn Bhd, Kuala Lumpur, 2008, p. 216

13 the other hand, the subject-matter with regard to investment is the work and percentage of profit or payment of fees and providing services. Determining the kind of relationship depends on the model adopted by the takaful operator in investing the takaful fund. 54 Hence, it could be concluded that both the Shariah and the traditional law require that a legally binding contract must be definite Communication of offer Under life insurance, the offer must also be communicated. The offeree must understand that the offer has been made before it can be accepted. This requires that the offeror intentionally brings to the attention of the offeree his willingness to enter into the contract. 55 The communication of the offer and acceptance can be made via telephone, fax, etc. Under family takaful, it is also a requirement under Islamic law of contract that offer and acceptance must be communicated. In Islamic contract law offer and acceptance can be expressed in a various ways such as by words, writing, gesture or indication and by conduct. 56 Islamic law also allows the use of modern technology such as telephone, fax, etc. for communication of offer and acceptance as long as it is beneficial to the public and not contradictory to the Shariah. 57 Again, under life insurance, the offeror is free to specify the duration upon which the offer remains opened or expired. If the offer is silent on the expiry date, the presumption is that it remains opened for a reasonable lengthy of time. The question of a reasonable length of time depends on the circumstances of each case. 58 Under family takaful, by virtue of the Maxim The 54 Ibid 55 S. S. Dass, Law of Life Insurance in Malaysia, p Arzim Associates Chartered Accountants & Chartered Islamic Finance Professionals, The Islamic Commercial Law Principle, Kuala Lumpur, Bakar, Mohd Daud, Contracts in Islamic Commercial Transactions and Their Application in Modern Islamic Financial System. p S. S. Dass, Law of Life Insurance in Malaysia, p. 31

14 Contract is the Law of the Parties. Moreover, in Islam the origin of everything is lawful unless an authority proves one unlawful 59 and Muslims are bound by their conditions except the one which prohibits the permitted one or permits the prohibited one 60, this means that parties to a contract are free to agree on the terms of the contract so long as these terms are not against established principles of Islamic law. Thus, the offeror can also specify the duration upon which the offer should remain opened. Hence, the Shariah and the traditional law do not differ with regard to communication of offer Revocation of offer Under life insurance, the offeror is entitled to revoke the offer before the communication of the acceptance. According to the general contractual principles, mere silence cannot be considered as an acceptance. 61 Silence cannot amount to consent, thus no any binding contract can take place until the offeree performs something to indicate his acceptance of the offer. Delay in communicating an answer cannot amount to acceptance, because prima facie, acceptance ought to be communicated. 62 However, if according to practice, the insurer has imposed an obligation on itself to notify the insured of acceptance or rejection within a given period of time, then silence will be regarded as acceptance. 63 Under family takaful, based on the Islamic law of contract, an acceptance ought to be communicated to the offeror. The communication of acceptance is considered complete once it comes to the knowledge of the offeror. 64 But, if the acceptance does not reach the offeror, it would not be a valid acceptance and it may be revoked. 59 Suyuti, Al-Imam Jalaluddin Abd. Rahman, Al-Ashbah Wa-al-Nazair, Darul Kutub al-alamiyyah, Lebanon, 1983, p At Tirmizi, as quoted by Shaikh Jad al-haq Ali Jad al-haq, al-tameen alal Hayati Gairu zaizin, in al- Iqtisadul Islami, op. cit. p Felthouse v Bindley [1862] 11 CBNS 869; Life Insurance Corporation of India v Raja Vasireddy Komalavalli Kamba & Ors [1984] AIR SC S.S. Dass quoted from McGillivray & Parkington on Insurance Law 7 th ed. p S. S. Dass, Law of Life Insurance in Malaysia, p Niazi, Liaquat Ali Khan Islamic Law of Contract. p. 67

15 This is the view of majority of the classical Muslim jurists. 65 Therefore, the Shariah and the traditional law agree with each other pertaining to revocation of offer of life insurance and family takaful Acceptance of offer Under life insurance, a proposal is said to be accepted, when a person to whom consent is required indicates his consent to it. 66 Any actions performed or words said on the part of the offeree showing his approval to the offer will amount to acceptance. Generally acceptance has to be absolute as it must signify an understandable assent to all the terms of the offer. Therefore, acceptance should be unqualified. If the acceptance is qualified by the addition of new conditions, it will be deemed as a counter offer instead of acceptance. 67 Under family takaful, under Islamic law of contract, offer and acceptance by conduct is recognized. 68 Therefore, the offeree can accept the offer by conduct. Also, under Islamic law, it is a requirement also that the offeree must accept the offer from the offeror absolutely and without any qualification. 69 Therefore, the Shariah and the traditional law agree with each other pertaining to acceptance of offer Mode of acceptance Under life insurance, if the proposer prescribes a particular mode of acceptance, it has to be complied with. But if that was not mentioned, the acceptance has to be expressed in some reasonable or usual manner. 70 In a situation where the acceptor deviates 71 from the agreed mode of 65 Ibid.; Rayner. Theory of Contracts under Islamic Law. p. 66 Section 2 (b) of the Contracts Act S. S. Dass, Law of Life Insurance in Malaysia, Alpha Sigma Sdn Bhd, 2000, p. 34 Hall. 68 Abdullah, N. I. & Razali, S.S Commercial Law in Malaysia. Kuala Lumpur: Pearson, Prentice 69 O Sullivan, J. and Hilliard, J The Law of Contract. Oxford, New York: Oxford University Press. pp Section 6 (b) Contracts Act Macon Works & Trading Sdn Bhd v Phang Hon Chin & Anor. [1976] 2 MLJ 177

16 acceptance mentioned in the proposal, the proposer has to act and need not to keep silent. The proposer has the right to be firm on the agreed mode. If he fails to do so, he is believed to have accepted in the modified manner. 72 And if the offer stipulates that acceptance is to be in writing and the acceptor accepts by telephone, the proposer must insist on the writing mode, but if he continues to keep silent he will be considered as accepting the oral acceptance. 73 Under family takaful, it is suggested that this also should depend on the agreement between the operator and the participants because of the Maxim the contract is the law of the parties. This means that parties to a contract are free to agree on the terms of the contract so long as these terms are not against established principles of Islamic law. Therefore, if a mode of acceptance has been prescribed in the family takaful contract, it has to be complied with. Therefore, the Shariah and the traditional law are in harmony regarding the mode of acceptance in life insurance and family takaful contract Communication of acceptance must correspond with the offer Under life insurance, communication of the acceptance has to match up with the offer; otherwise it will not result in a binding contract. This is very important because there may be times when the insured and the insurer may have a mutual-mistake. 74 In Johnston v Prudential Assurance Co. 75 one, Alice Grant, agreed to effect a life endowment policy on her son specifically for her benefit. The agent instead of doing as intended got the son to sign a proposal for his own life endowment policy. After the acceptance of the proposal, the policy was delivered to Mrs. Grant and she paid the premiums. On the death of the son, dispute arose between the mother (Mrs. Grant) and the son s widow, where both claimed. It was decided that there was no contract between Mrs. Grant and the company because the policy was not the one she asked for. As for the son s widow, it was decided that there was no contract between the company and the son because he did not intend to effect a life insurance on his own life, hence both claims were dismissed. However, Mrs. Grant got 72 Section 7 (b) Contracts Act S. S. Dass, Law of Life Insurance in Malaysia, p S. S. Dass, Law of Life Insurance in Malaysia, p [1946] I.A.C Rep. [ ] 59

17 refund of the premiums she paid because they were paid by mistake believing that there was a contract of insurance. Under family takaful, based on the Shariah, the acceptance must be made to correspond with the proposal. It is compulsory that the acceptance must conform to the offer in all its details irrespective of whether such conformity is express or implied. If this conformity does not exist, there will be no consent. This conformity could either be explicit or implicit. 76 Moreover, where a mistake occurs with regard to the subject matter of the contract, the contract would be considered as null and void. 77 Thus, if there is a mistake in relation to the offer and acceptance with regard to the subject matter of the family takaful contract, that would render the contract as null and void. Therefore, both the Shariah and the traditional law affirm that communication of acceptance must correspond with the offer. 3. Conclusion With regard to parties, both insurance and takaful require the insurer and operator to have a valid license before operating, and failure to do as required will make them face a severe punishment. On the other hand, both insured and participant are allowed to enter into a contract of life insurance and family takaful before reaching the age of majority as it is a contract that is advantageous to them. Furthermore, just like other contracts, there are certain impediments that may prevent someone from entering into insurance or takaful contract. Under both the Shariah and the traditional law, persons of unsound mind, a seriously ill person (without the consent of parent or guardian), drunken person; and bankrupt are not allowed to enter into a contract. 76 Arzim Associates Chartered Accountants & Chartered Islamic Finance Professionals, The Islamic Commercial Law Principle, Kuala Lumpur, Dr. M. B. Arbouna, Regulation of Takaful Business: A Shari ah Overview of Contractual Aspects of Takaful Models, In Dr. Mohd Daud Bakar & Dr. Engku Rabi ah Adawiah Engku Ali (ed.) Essential Readings in Islamic Finance, CERT Publications Sdn Bhd, Kuala Lumpur, 2008, p. 215

18 Regarding, Formation of life insurance/family takaful contracts and found that both the traditional law and the Shariah in order to have a valid contract of life insurance and family takaful contract, there must be separate and definite parties thereto; these parties must be in agreement that is consensus; and offer and acceptance. Again, under both systems, writing contract is not compulsory, but it is strongly encouraged. Also, offer under both systems must be definite, and the offer must be communicated. Moreover, it is allowed under both systems to revoke the offer. Furthermore, acceptance of offer must be communicated which must be absolute. In addition, if there is a prescribed mode of acceptance, it must be complied with. It is also a requirement that communication of acceptance must correspond with the offer. 4. Bibliography Abdullah, N. I. & Razali, S.S Commercial Law in Malaysia. Kuala Lumpur: Pearson, Prentice Hall Age of Majority Act 1971 Arbouna, M. B. Dr Regulation of Takaful Business: A Shari ah Overview of Contractual Aspects of Takaful Models. In Dr. Mohd Daud Bakar & Dr. Engku Rabi ah Adawiah Engku Ali (ed.) Essential Readings in Islamic Finance. Kuala Lumpur: CERT Publications Sdn Bhd Arzim Associates Chartered Accountants & Chartered Islamic Finance Professionals, The Islamic Commercial Law Principle, Kuala Lumpur Bakar, Mohd Daud Contracts in Islamic Commercial Transactions and Their Application in Modern Islamic Financial System Billah. M Applied Takaful and Modern Insurance Law and Practice. 3 rd Ed. Malaysia: Sweet & Maxwell Asia Contracts Act 1950 Dass, S. S Law of Life Insurance in Malaysia. Malaysia: Alpha Sigma Sdn Bhd

19 Gayle E. H International Business Negotiations in Saudi Arabia, in James R Silkenat, Jeffrey M. Aresty & Jacqueline Klosek eds., The ABA Guide to International Business Negotiations, Chicago, Illinois: American Bar Association Houseman and Davis, Law of Life Assurance, LexisNexis UK Insurance Act 1996 Islamic Financial Services Act 2013 Kamali, M.H Siyasah Shar iyah or the Policies of the Islamic Government, The American Journal of Islamic Social Sciences, Vol. 6, No. 1 Kharofa, A Transaction in Islamic Law. Kuala Lumpur: A.S. Nordeen Kool, Chin Nam A comparative study of Islamic law and civil law in Malaysia on contract, arbitration, banking principles and documentation. Petaling Jaya, Kuala Lumpur: International Islamic University Malaysia. Md. Abdul Jalil Islamic Law of Contract is Getting Momentum, International Journal of Business and Social Science, Vol. 1 No. 2 Niazi, Liaquat Ali Khan Islamic Law of Contract. Lahore: Research Cell, Dyal Sing Trust Library. O Sullivan, J. and Hilliard, J The Law of Contract. New York: Oxford University Press Shaikh Jad al-haq Ali Jad al-haq al-tameen alal Hayati Gairu zaizin, in al-iqtisadul Islami Susan E. Rayner Theory of Contracts under Islamic Law. London: Graham & Trotman Suyuti, Al-Imam Jalaluddin Abd. Rahman, Al-Ashbah Wa-al-Nazair, Darul Kutub al-alamiyyah, Lebanon, 1983, p. 60 Takaful Act 1984 Zuhaily, W Al-fiqh al-islami wa adillatuhu. Damascus: Dar al-fikr

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