Doktrin Caveat Emptor: Penilaian terhadap Akta Kontrak 1950 dan perundangan Islam

Norhoneydayatie Abdul Manap;  ; Mat Noor Mat Zain

doi:10.37052/kanun.33(2)no5

Doktrin Caveat Emptor: Penilaian terhadap Akta Kontrak 1950 dan perundangan Islam

Kanun: Jurnal Undang-undang Malaysia ◽

10.37052/kanun.33(2)no5 ◽

2021 ◽

Vol 33 (2) ◽

pp. 287-304

Author(s):

Norhoneydayatie Abdul Manap ◽

◽

Mat Noor Mat Zain

Keyword(s):

Common Law ◽

Caveat Emptor

Amalan caveat emptor yang menyerahkan sepenuhnya tanggungjawab kepada pembeli agar berhati-hati ketika melakukan transaksi merupakan satu doktrin yang telah diperkenalkan oleh common law sejak abad ke-13 lagi. Menerusi amalan ini, pihak penjual tidak bertanggungjawab untuk mendedahkan segala maklumat yang diketahuinya kepada pembeli. Di Malaysia, doktrin ini tidak jelas dalam mana-mana peruntukan undang-undang. Oleh itu, kajian ini bertujuan untuk menganalisis pemakaian doktrin caveat emptor ini dalam Akta Kontrak 1950. Selain itu, kajian ini juga melihat pandangan perundangan Islam berkaitan dengan amalan doktrin ini. Reka bentuk kajian bersifat kualitatif dengan menggunakan pendekatan analisis dokumen. Data dianalisis secara analisis kandungan. Hasil kajian mendapati terdapat beberapa peruntukan dalam Akta Kontrak 1950 yang mengamalkan doktrin caveat emptor, walaupun tidak diperuntukkan secara jelas dalam akta tersebut. Berdasarkan perundangan Islam pula, doktrin ini tidak sesuai dilaksanakan kerana bertentangan dengan prinsip yang terdapat dalam perundangan Islam. Oleh yang demikian, kajian mencadangkan agar pindaan dibuat terhadap peruntukan berkaitan dengan amalan caveat emptor yang terdapat dalam Akta Kontrak 1950.

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A History of Cutoff Rules as a Form of Caveat Emptor: Part II-From Roman Law to the Modern Civil and Common Law

The American Journal of Comparative Law ◽

10.2307/840169 ◽

1989 ◽

Vol 37 (2) ◽

pp. 247

Author(s):

John C. Reitz

Keyword(s):

Common Law ◽

Roman Law ◽

Caveat Emptor ◽

History Of

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The Application of Caveat Emptor and Caveat Venditor Doctrines from Civil and Islamic Perspectives

Jurnal Undang-Undang dan Masyarakat ◽

10.17576/juum-2021-28-09 ◽

2021 ◽

Vol 28 (2021) ◽

pp. 92-103

Author(s):

Muhammad Hafiz Mohd. Shukri ◽

Rahmah Ismail ◽

Ruzian Markom

Keyword(s):

Negative Impact ◽

Common Law ◽

Court Cases ◽

Legal Research ◽

Caveat Emptor ◽

Consumer Law ◽

Depth Analysis ◽

Long Time ◽

Research Findings ◽

The Common

Since a long time ago, consumers have never been completely safe from exposure to the risk of purchasing defective products, which may cause an adverse effect on them. The introduction of the doctrines of caveat emptor and caveat venditor became a part of the common law to resolve disputes between manufacturers, sellers, and consumers. This study therefore aims to analyze the application of the caveat emptor and caveat venditor doctrines according to civil and Islamic perspectives to see how far the application of both doctrines can provide justice to consumers. Utilizing doctrinal approach based on the methodology of qualitative legal research, this study involves in-depth analysis of statutory provisions, court cases, Quranic texts, hadiths, and the opinions of Muslim scholars. The research findings were analyzed through content analysis and critical analysis methods. This study has proven that there are legal problems with regards to the application of the caveat emptor doctrine and its resulting negative impact on consumers, thus leading to the formation of the caveat venditor doctrine. Although the term “caveat venditor” and its definition are not expressly mentioned in the Qur’an and the hadiths, the application of the doctrine is seen to have a strong foundation in Islam. The results of this study are expected to contribute significant new knowledge in the field of consumer law since a comparative analysis of the application of both doctrines according to civil and Islamic perspectives is still lacking, especially in cases involving the selling of defective products.

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CAVEAT EMPTOR VERSUS KHIYAR AL-'AYB

American Journal of Islam and Society ◽

10.35632/ajis.v14i2.2250 ◽

1997 ◽

Vol 14 (2) ◽

pp. 208-230

Author(s):

Muhammad Ma'sum Billah

Keyword(s):

Islamic Law ◽

Common Law ◽

Commercial Law ◽

Caveat Emptor ◽

Actual Agreement

It is an obligation in any commercial (sale-purchase) transaction thatprior to entering into an agreement, the seller is to allow the buyer toinspect the goods, in order to ensure that they are free from any unknowndefect. Such an obligation on the seller is known in common law ascaveat emptor.' The doctrine, in other words, gives the buyer a right todetermine whether the goods to be purchased are free from any defectbefore the actual agreement is completed, so as to protect him from anyfuture risk from a defective product. Thus, this doctrine implies that thebuyer, after such inspection or investigation of the fitness of such goods,will shoulder the responsibility of any risk on the goods after the conclusionof the said sale and purchase agreement. Jowitt's Dictionary ofEnglish Law explains that a buyer must be on the alert, for he has no rightto remain in ignorance of the fact that what he is buying belongs to someoneother than the vendor and that any buyer who fails to investigate thevendor's title does so at his own risk.However, caveat emptor does not imply any obligation on the seller topoint out a defect in the goods to be sold.3 He is, therefore, only obligedto allow the buyer or purchaser to investigate the goods himself andnothing more. The buyer, in h s case, can decide before any sale andpurchase agreement whether to carry out such an inspection on the goodsto be sold. The buyer is then at liberty whether to exercise this means ofprotection against any defective goods! Islamic law also provides sucha safeguard against any defective products or goods in a sale and purchaseagreement. The Islamic doctrine which allows such safeguard iscalled in Islamic commercial terminology khiyur al-'ayh. Thus, underIslamic commercial law, the seller, in a sale and purchase agreement, is ...

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Doctrine of Caveat Emptor (Buyer be aware) in Common Law and the Doctrine of Khiyar al aib (Option of defect) in Islamic Law: A Comparative Study

IIUC Studies ◽

10.3329/iiucs.v10i0.27436 ◽

2016 ◽

pp. 201-216

Author(s):

Abdul Malek ◽

Anju Man Ara Begum ◽

Kazi Arshadul Hoque

Keyword(s):

Comparative Study ◽

Islamic Law ◽

Common Law ◽

General Rule ◽

Caveat Emptor ◽

The World ◽

Problems And Solutions

The Sale of Goods Act, 1930 deals with one of the important branches of contract especially the moveable goods with which the general people in the world deal every day. In dealing with the goods proposed for sale must be free from any known or unknown defect of either party of the contract of sale. Regarding the sale of defective goods the buyer has some remedies against the default seller in both common law and Islamic law. In common law it is known as Caveat Emptor (Buyer be aware) and in Islamic law it is known as Khiyar al aib (Option of defect). It is the general rule that the buyer should have an opportunity to satisfy himself as to the quality of the goods for his particular purpose and in absence of any query or unskilled test by the buyer, the seller is not to be liable for anything. In this article efforts have been made to examine the rights and duties of buyer and seller in Common law and Islamic Law. An attempt has also been made to find out similarities and dissimilarities of both laws regarding caveat emptor. Thus the paper, through the analysis of both laws, tries to address the problems and solutions related to caveat emptor.IIUC Studies Vol.10 & 11 December 2014: 201-216

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remains substantially intact with the result that, except in a small number of cases, there is no duty to disclose facts peculiarly within the knowledge of one of the parties, due in part to the historical strength of the common law rule of caveat emptor. Whilst there is a well established rule that a contracting party must not actively mislead the other by means of an actionable misrepresentation, English law has not gone down the road requiring contracting parties to reveal to the other all facts relevant to the contract which is being negotiated. DISCLOSURE OF MATERIAL FACTS AND THE REQUIREMENT OF GOOD FAITH

Sourcebook on Contract Law ◽

10.4324/9781843141518-82 ◽

1995 ◽

pp. 217-219

Keyword(s):

Common Law ◽

Good Faith ◽

The Other ◽

Caveat Emptor ◽

The Road ◽

The Common ◽

English Law

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15. Statutory implied terms and statutory rights

Commercial Law ◽

10.1093/he/9780198825975.003.0015 ◽

2019 ◽

pp. 340-396

Author(s):

Eric Baskind ◽

Greg Osborne ◽

Lee Roach

Keyword(s):

Common Law ◽

Fitness For Purpose ◽

Caveat Emptor ◽

Consumer Rights ◽

The Common ◽

Made In

This chapter discusses the common law rule of caveat emptor, which today has been largely eroded by the original Sale of Goods Act 1893 (SGA 1893) that introduced the statutory implied terms of quality and fitness for purpose. It is shown here that the principle of caveat emptor is still alive and well in relation to purely private sales because the terms implied by the Sale of Goods Act 1979 (SGA 1979) in relation to the quality and fitness for purpose of the goods only apply to sales made in the course of a business. Sale of goods contracts are still, therefore, governed by the principle of caveat emptor to some extent, although this is subject to other enactments. This chapter also discusses the Consumer Rights Act 2015 (CRA 2015) which came into force on 1 October 2015.

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