The Principle of Mutual Consent in Present-Day Commercial Practices: An Islamic Jurisprudential Analysis

Abstract

The rapid evolution of digital commerce has transformed the nature of contractual engagement, redefining how consent is formed, expressed, and validated in contemporary trade. Click-wrap agreements, automated approvals, algorithmic recommendations, and data-driven decision architectures increasingly mediate the user’s willingness to transact, raising critical questions regarding the authenticity of consent within Sharīʿah. This study offers a comprehensive Sharīʿah-based analysis of modern consent mechanisms through the conceptual frameworks of tarāḍī, gharar, disclosure, fairness, and the objectives of Sharīʿah (maqāṣid al-Sharīʿah). Drawing on Qur’ānic injunctions, Prophetic traditions, and classical jurisprudence—while engaging contemporary scholarship on digital contract law, behavioral economics, and fintech ethics—the article examines how information asymmetry, manipulative interface design, automated systems, and complex terms and conditions affect the moral-legal validity of mutual consent. It also evaluates emerging business models such as ride-sharing, AI-assisted contracting, BNPL services, cryptocurrencies, and P2P financing to determine their compatibility with Sharīʿah requirements for volitional, informed, and non-exploitative agreement. The study ultimately proposes Sharīʿah-guided reforms to enhance transparency, ensure meaningful digital consent, strengthen consumer protection, and align state-level regulatory frameworks with ethical Islamic principles. This analysis contributes to the broader effort of harmonizing Islamic commercial jurisprudence with the realities of increasingly digitalized global markets.