RULES OF SILENCE IN ELECTRONIC TRANSACTIONS-A COMPARATIVE STUDY

Abstract

The rules concerning silence are governed by two conflicting principles. The first considers silence as a purely passive stance, the opposite of acceptance, and not an expression of intent, essentially equating it to non-existence. This is reflected in the rule "Silence does not imply speech." This issue is contentious in both positive law and Islamic law, which views silence as a neutral stance that does not indicate anything. Therefore, silence is never considered an offer but may be regarded as acceptance in certain cases. The second rule considers silence as an indication of consent, directly contradicting the first. Silence, in this context, expresses acceptance, as articulated in Article (81), paragraph (1) of the Iraqi Civil Code: "Silence in a situation requiring a statement is considered as acceptance." Thus, the interpretation of silence depends on the context. In some cases, the first principle applies, while in others, the second is more appropriate, such as in situations involving silent acquiescence or silent agreement. It is important to note that the issue of silence is inherently connected to acceptance, and it is not applicable when discussing offers. An offer requires a clear, positive expression indicating key aspects of a legal action or proposed transaction, regardless of whether the offer is made through traditional or electronic means. The question raised in this research is whether silence can exist in electronic transactions in the same way as in traditional dealings, and this is addressed through the study.