Legal Commentary

Islamic Agreements in Civil Courts

By Eugene Volokh

Obaidi v. Qayoum (Wash. Ct. App. Feb. 23, 2010) is a good example of what has long struck me as the right way of dealing with this problem: If possible, treat the agreements as normal agreements, without regard to their Islamic character, and then enforce them ? or not ? as normal agreements. Here?s an excerpt from the decision:

A mahr is a prenuptial agreement based on Islamic law that provides an immediate and long-term dowry to the wife. Husna Obaidi and Khalid Qayoum, both children of Afghan immigrants, signed a mahr agreement written in Farsi during an engagement ceremony known as a Nikkah ceremony. Mr. Qayoum, who does not speak, read, or write Farsi, did not know about the mahr until 15 minutes before he signed it. An uncle explained the mahr to Mr. Qayoum after he had signed it. After a 13-month marriage, Ms. Obaidi filed a petition for dissolution of the marriage. Ms. Obaidi asserts that the mahr requires Mr. Qayoum to pay her $20,000 upon divorce....

[W]e can resolve this case by using these neutral principles of law, not Islamic beliefs or policies....

Mr. Qayoum asserts the mahr agreement was invalid under contract law. We agree. ... For a valid contract to exist, there must be mutual assent, offer, acceptance, and consideration. Here, there was no meeting of the minds on the essential terms of the agreement. There were only two terms in the written mahr:

Short term marriage portion: One hundred Canadian Dollars
Long term marriage portion: 20,000.00 Dollars

There was no term promising to pay and no term explaining why or when the $20,000 would be paid.

A valid contract requires a meeting of the minds on the essential terms. Mr. Qayoum was not told that he would be required to participate in a ceremony that would include the signing of a mahr until 15 minutes before he signed the mahr. Here, Mr. Qayoum was unaware of the terms of the agreement until they were explained to him by an uncle after the mahr had been signed....

Makes sense to me.

UPDATE: I expanded the block quote a bit, to mention the terms of the mahr and the court?s discussion of the absence of a term promising to pay.

Full post as published by The Volokh Conspiracy on February 25, 2010 (boomark / email).