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1. Introduction
Misrepresentation is an important branch of study in contract law. Generally, misrepresentation is known as an incorrect, wrong, untrue, distorted or false statement of a fact made by one party simply to coax another party to enter a contract. Thus, the result of a misrepresentation renders the contract voidable and provides the affected party a chance to cancel the contract and/or claim compensation or restitution (Law Teacher, 2016). In common law, several vitiating factors of misrepresentation include falsity of statement, inducement of that statement to enter a contract and direction of statement toward aggrieved party. Of the various kinds of misrepresentation, fraudulence, negligence and innocence are most recurrent. Intriguingly, the common praxis of jurisprudential treatment of misrepresentation omits silence as a nullifying factor. Silence is, however, in some jurisdictions (e.g. Malaysia and several former British colonies) treated as misrepresentation in contract – unlike the general rule under English common law practices whereby mere silence of one party does not amount to misrepresentation. This is not discounting an array of exceptions available against this general rule as well as various case decisions and legal precedents used to establish a number of vital points where silence may amount to a fraudulent misrepresentation. In Islamic legal traditions, per contra, a contract is constructed on the basis of mutual acceptance of both the parties according to the Islamic law. Thus, in general, silence is not construed as an expression of affirmative will in Islamic legal practice, and the general Islamic principle is that “No statement is attributable to a silent person” (Stoval, 2014). In fact, it is usually more natural to assume that silence is an indication of rejection rather than acceptance. Thus, according to the Islamic law principle, a seller in a contract of sale must have to disclose everything about his good. He cannot remain silent about the defects of his goods – contrary to the common law system which tolerates the contingency of seller’s choice to exercise silence in disclosure of defects of his good unless/until probed by the buyer. This contradictory approach to treatment of silence in contracts is both interesting to study from an academic point of view as well as of practical import for legal reform. Throughout this paper, we...