Motivating Cause and Intention in Contract Law: A Comparative Study of Islamic and Common Law

Abstract

This study presents a comparative analysis of motivating cause and intention in Islamic and Common law systems, examining their theoretical foundations and practical applications in commercial contracts. The research employs doctrinal analysis of primary legal sources and contemporary banking practices to investigate how these legal traditions conceptualize and apply principles of intention in contract formation and validation. The findings reveal that while Islamic law emphasizes both explicit and implicit intentions through its various schools of thought (Hanafī, Mālikī, Shāfi'ī, and Hanbalī), Common law has evolved from subjective to objective theory of contract interpretation. The study identifies significant divergences in theoretical approaches, particularly in the treatment of underlying motives and their effect on contract validity. However, it also uncovers notable convergences in practical applications, especially in modern commercial transactions. This research contributes to the understanding of cross-system legal harmonization and has important implications for international commercial law practice, particularly in jurisdictions where Islamic and Common law principles intersect. The findings suggest that while maintaining distinct theoretical frameworks, both systems demonstrate adaptability in addressing contemporary commercial needs while preserving their fundamental principles.