Classification of Contractual Agreements in Comparative and Islamic Jurisdictions: Does it Make Any Sense?
Abstract Comparative legal systems differ in the organization of the manifestation of parties’ expressions when making legal transactions where an external action does not reflect the real intention of this party. Most jurisdictions, including Islamic law, follow the objective theory of agreements while the Conterminal legal system adopts the subjective approach. Despite the fact that many scholars spent much efforts to clarify this classification, the importance of this classification may be modest; these legal systems organize some basic doctrines, with regard to the formation of a contract (namely: the revocability of offer, the need for communication of acceptance and the rules of interoperation), in a manner that may contradict with its general theory of making agreement. In other words, the organization of these doctrines has very little significant differences in result between these legal systems. Islamic law has the same result as well. This article aims at explaining these doctrines and differences.
The Origins of the Objective Theory of Contract Formation and Interpretation
Most contracts scholars have come to believe that the Subjective Theory of contract formation and interpretation dominated the nineteenth century. This article demonstrates that the objective approach to formation and interpretation of contracts has been dominant since the origins of the common law. There was, indeed, a flirtation with the subjective approach in the mid nineteenth century. This flirtation had few practical consequences because the rules of evidence did not permit parties or other interested persons to testify and the parol evidence rule was vigorously applied. Soon after the bar of party testimony was lifted, the courts altered the rules of relevancy to create a new objective approach. The ultimate root of objectivity is the legal profession's distrust of party testimony. Oliver Wendell Holmes, Jr. is often credited with creating the modern objective theory. His role, however, was to propagate what the courts had already created. Despite the defeat of the Subjective Theory, some remnants survive, particularly in cases of duress and other grounds for avoidance of contracts.
Introduction and experience with the primary mail services based on their names for students
Kyushu University provided mail service based on student IDs such as "1AB10123X" to the university students for many years. Using this model, we had problems communicating with the students who graduated from the University and enrolled in the graduate school. The students received new mail addresses based on their new student IDs such as "2AB12789Y". Faculty members were forced to change the student mail addresses in the mailing lists and in their mail client address book. Furthermore, students were forced to notify the e-mail address change to all of their existing contacts. We introduced a new mail system to provide addresses based on the student name, as well as student ID in April 2011. The new naming convention uses the following format: lastname.firstname.999 where 999 is a random number of 3 digits. Students can select some combination patterns of their first and last names for Japanese. We also consider the middle names for foreign students. In the system implementation, we did not have the formal information of alphabetical names for students. We generated alphabetical names from Japanese Katakana names. It is not easy for us to get the appropriate name in this manner. We implemented a confirmation stage of the alphabetical name at first use, and then students can select their mail addresses for their convenience. We paid much attention to the user interface in the system. Since April 2011, the number of users who use the mail address based on their own name has been increasing gradually. This paper will detail the usage status of the new system.