CAUSES OF DEFECTIVE LEGAL

CAPACITY
 Natural Causes of Defective Capacity

There are causes that are beyond the control of the subject

(Mukallaf). Mukallaf is a person who possesses ahliyah (legal

capacity), whether he acts directly or through delegated
authority.
When a person has a perfect ability, sometimes occurs also

barriers to reduce or eliminate their ability.

The jurist divide the causes of defective capacity into two kinds :

1. Samawiyyah : Natural Causes

2. Muktasabah : Acquired causes
1. Samawiyah (Natural Causes)

1.1 Minority (Sighar)

Sighar (minority) is the state or condition of a human being after birth and before puberty.

The minor is not liable for the ibadat, for financial transactions and for punishments.

The sabiyy (minor) is liable for compensation of property destroyed by him, for goods and services bought, for maintenance of relatives and also for zakat.
1.2 Insanity (junun)

 The insane person who is insane lacks aql.

 Junun has no effect on ahliyyat al-wujub because rights are against an

insane person, who is liable for destruction of property and payment of
diyah.
 The insane person has no liability for ibadat or punishments and all his
transactions are void.
1.3 Idiocy (‘Atah)
 It is a state in which a person at times speaks like a sane and normal
person, while at others he is like a madman.
 The capacity of an idiot is deemed equivalent to that of a sabiyy
mumayyiz (the discriminating minor), who can be permitted by his
guardian to undertake some transactions.

1.4 Sleep and Fits of Fainting (Nawm wa Ighma’)

 Sleep and fits do not effect ahliyah al-wujub,because the attribute of
insaniyyah is intact.
 There is no liability for punishments and transactions.
1.5 Foregetfulness (Nisyan)
o This is a state in which a person is not very careful about things.

o Forgetfulness does not affect ahliyah al-wujub nor does it affect the

capacity for execution.

1.6 Death-illness (Marad al-mawt)

 This is a condition in which the mind of a sick person is dominated by
the fact that he will die because of his illness.
 Maradh al-maut has no effect on the capacity for acquisition and the
capacity for execution.
 ACQUIRED CAUSES OF DEFECTIVE
CAPACITY
• Created by man or in which human will and choice are the basic factors.

1. Ignorance (Jahl)

2. Intoxication (Sukr)

3. Jest ( Hazl)

4. Indiscreation (Safah)

5. Journey ( Safar )

6. Mistake (Khata’, Shubbah)

7. Coercion (Ikrah)
 Intoxication ( SUKR )
o Drunkenness is a state caused in a human being due to the use of an
intoxicant, which temporarily suspends the proper functioning of mental
faculty.
o Intoxication did not cause changes in the capacity for acquisition.
Drunken person has dhimmah (legal personality) and ability for the
acquisition and is responsible for life and property, the obligation,
maintenance and Zakat.
o Aql (reason) and rushd(discreation) is the basis of the capacity for
execution. Khitab (al-Quran) is not addressed to them who drunken
because they do not understand. The situation worse than a drunk is more
severe than the person who falls asleep and awake, and worse than idiot,
but understand what is said by another person to him.
o The jurists agree unanimously that the kitab is not directed toward the

intoxicated person if such intoxication has been caused by the legal use
of intoxicants.
o Muslim jurist disagree with those who drunk on the way that illegal
because they ignore responsibilities worship as well as sinful.
o “ o ye believers, approach not prayer when you are intoxicated, until you

know what you say,” [ Quran 4:43].

o Some jurists are of the opinion that an intoxicated person has no
capacity for execution, because his aql(reason) is completely impaired by
the state of intaxication.
 Jest (Hazl)
 When a person uses words without intending to convey either their
primary or their secondary meanings, that is, their denonations or their
connotations, he is said to speak in jest ( hazl ).
 It has no effect on the capacity for acquisition and cannot negate the
capacity for execution. In other words, the legal exists when there is
consent and willingness.
 The Hanafi’s is considering a matters may not be valid but for the case
of marriage, divorce, manumission, ruju(retraction) and the like are valid.
 Indiscreation(safah)

 This defect concerns financial transactions, that is, transactions

undertaken carelessly and in a manner that a prudent person is likely to
avoid.
 Effect :: foolish waste and squandering of property.

 Official restrictions imposed on persons who have not reached puberty.

 Abu Hanifah consider official restrictions will expire when the individual
reaches the age of 25 years and after that can own property.
 Coercion and Duress (ikrah)
 Ikrah is a situation in which one is forced to do something without his
willingness.
 It has no effect either on the capacity for acquisition or the capacity for
execution, because this state does not affect life or reason and
discreation.
 Effect on free will :

 The jurists disagree about the extent to which ikrah can effect free will
and may be classified into two opinion :
1. Ikrah is an obstacles in the way of taklif (creation of an obligation ) :
• Justified coercion
• Unjustified coercion
- acts committed are legally permissible under coercion
- acts that are legally prohibited ( example : murder and rape)
2. The second opinion is held by the Hanafis, who divide ikrah into three
types :
i. Coercion that negates free will or choice.
ii. Coercion that negates consent, but makes free will irregular or fasid.
iii. Ikrah that does not negate consent nor does it make free will fasid.
• Effect of coercion on legal capacity
 The Hanafi’s maintain that the condition of taklif is the existence of the
right to choose and not its validity(sihhah). Irregular or fasid free will,
they say, is sufficient for the existence of taklif.
 Free will is not invalid ( batil) though it may be irregular and taklif may
accompany ikrah.
 Hanafi’s divide it into three types :
a. Transaction. These are divided into two kinds, on the basis of the effect
of ikrah
i. Transactions that do not accept rescission and do not depend upon
consent
ii. Transaction that accept rescission or revocation and depend upon
consent.
b. Admissions and confessions
c. Acts in general. Divided into two kinds by the Hanafi jurists :

1. When the coerced is a mere instrument in the hands of another, like a

person picking up another and throwing him upon another thereby
causing death or hurt, or causing damage to property.
2. When the coered cannot become an instrument in the hands of
another, for example, in the commission of zina or eating of food.
 Mistake and Ignorance
(khata’, shubhah, and jahl)

 shubhah is usually translated as doubt, hudud penalties are to be waived

in case of shubhah.
 According to jurist, deals with doubts in the mind of the subject at the time
of commission or omission of an act.
These are several types :
i. Shubhah fi al-dalil (mistake of law)
ii. Shubhah fi al-milk (mistake as to ownership)
iii. Shubhah fi al-fil (mistake in the commission of the act)
iv. Shubhah fi al-aqd (mistake as to the governing law in contract)