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CONTRACTING PARTIES
AND SUBJECT MATTER
CHAPTER 07
Contracting in contract with emphasis
on the capacity of execution, the
acquisition of rights, deficient capacity
for execution and the natural causes of
impediments, the conditions of subject
matter, legality and the existence of
subject matter, certainty of delivery
and the legality of objects as well as
the underlying causes.
7.1 EXPLAIN CONTRACTING PARTIES
7.1.1 Define the capacity of execution (ahliyah)
7.1.2 Describe the capacity for acquisition of
rights (ahliyyah al-wujub) and deficient capacity
for execution (ahliyyah al-ada al-Naqisah)
7.1.3 Identify the natural causes of Impediments
a. Sighar (Minority)
b. Junun (Insanity)
c. Atah (Partial insanity)
d. Forgetfulness
e. Safah (Folly)
f. Murad al Maut (Death-illness)
g. Intoxication
h. Ikrah (Duress)
“Make trial of orphans until they reach the age of marriage; if then you find
sound judgment in them, release their property to them; but consume it not wastefully.”
(4:6)
• The principal elements for the complete active capacity are
the puberty and the intellectual standard that a person has
attained. This enables him to distinguish between useful and
harmful, profitable and unprofitable things or transactions.
• Signs of puberty and prudence:
-Puberty and Prudence is a hidden phenomena.
-The scholars, therefore, rely on age as a determining,factor,
which could establish them:
:According to the Hanafis, the age of majority is 18 for
males and 17 for females.
:Other scholars , it is 15 for both male and female. Every
person who has reached the age of majority may enter
into contracts of sale and purchase, rent, wakalah,
partnership....
Ahliyyah al-Ada’ al-Naqisah
Ahliyyah al-Ada al-Naqisah is assigned to a child who possess
some discretion or to a Ma’tuh who has attained puberty,
but yet LACKS COMPLETE MENTAL DEVELOPMENT. The person
who possesses deficient capacity cannot be held criminally
liable.
HANAFI SCHOOL OF LAW CATEGORIES DEFICIENT CAPACITY FOR
EXECUTION INTO THREE CATEGORIES;
1.Purely beneficial transactions
•The transactions falling under this category are the acceptance of a
gift of Sadaqah (charity). These are allowed for a person who has
attained puberty but who can discriminate and has been permitted by
his guardian (Wali) to exercise such acceptance.
2.Purely harmful transactions
•The granting of divorce, manummising (‘Itq), charity (Sadaqah), loan
(Qard) and gift (Hibah) as well as making a trust (Waqf) and bequest
(Wasiyyah) are considered transactions resulting in pure financial loss.
3.Transaction vacillating between profit and loss
•Sale, hire partnership and other such commercial transactions are
considered valid provided that the transactions are ratified by the
guardian and also produce a significant result for the parties
concerned.
• Incomplete active capacity: a child between the age of
eight and the age of puberty (age of puberty is 15
according to majority)
- He has a incomplete capacity to attain rights and responsibility.
- A child in this age group is called sabi al-mumaiyz or a child who
could distinguish between good and bad.
• According to the Shafie and Hanbali a distinguishing child
does not have the requisite capacity and therefore, he cannot
enter into any contract with or without the permission of his
guardian. His guardian instead may conclude contracts on his
behalf.
Samawiyyah (Natural causes of
impediments)
a. Sighar (Minority)
b. Junun (Insanity)
c. Atah (Partial insanity)
d. Forgetfulness
e. Safah (Folly)
f. Murad al Maut (Death-illness)
g. Intoxication
h. Ikrah (Duress)
Obstacles to Capacity:
Sighah ijab
Pillars of
Majority contract qabul
Contracting Parties
Subject Matter
MAAQUDALAIH (AL-MABI’)-
SUBJECT MATTER
Subject matter known as mahal al
aqad or al-mabi’.
According to Islamic Jurisprudence,
the subject matter of a contract
could be corporeal property, as in
granting, sale and mortgage,
privilege or benefit, as in rent or a
human being as in the marriage
contract which has as its subject the
woman herself.
THE CONDITIONS FOR THE
SUBJECT MATTER
RELATE
LEGALITY TO
THE EXISTENCE
OF SUBJECT
MATTER
1.The subject matter must exist
Islamic law requires that subject matter must be in
existence at the time when an ‘aqd is concluded.
Otherwise an ‘aqd is void, even if the subject matter
would exist in the future.
The wisdom behind this prohibition is the
possibility of gharar or risk that is associated with
the sale of the subject, which is not in existence.
Therefore the sale of the animal fetus yet to be born
while it is still in the mother’s womb is void if the
mother is not part of the sale.
Exception is given to bay al-salam (forwarding
contract) , bay al-istisna (contract of manufacture),
ijarah (contract of hire) based on necessity and
customs.
2. The subject matter can be delivered.
Islamic law requires that subject matter must be
able to be delivered to the contracting parties.
Otherwise an ‘aqd is void.
Hence, it is void to sell a bird on the sky, fish in
the sea or runaway horse.
3. The subject matter should be precisely
determined
Islamic law requires that subject matter must be
precisely determined and known to contracting
parties. Sufficient knowledge about the subject
matter is necessary to avoid future disputes.
For instance: The genus, species, quality, and
quantity should be clearly described.
If the seller describes goods to be sold as being of
a certain quality, and the goods upon inspection
proves to be of inferior quality or value, the law
allows the purchaser an option whether to cancel
the sale under the “option of misrepresentation”
or to accept the goods.
4. The subject matter must be legal.
Islamic law requires that subject matter must be
of commercial value, otherwise an ‘aqd is void.
Therefore the sale of the wine, blood, pork is void
even if these articles are of value to others or
according to civil law.
Similarly, the sale of items that can not be
secured or possessed, such as fish in the sea, bird
in the air, etc, But once possessed, it can become
the subject matter of transaction.
SHORT SUMMARY OF RELATED
LEGALITY TO SUBJECT MATTER
1)The subject matter of sale must exist at the time of the
transaction.
2)The Subject matter should be in the ownership of the seller at
the time of the transaction.
3)The subject matter must be in the actual or constructive
possession of the seller at the time of the transaction.
Constructive possession is where the risk and reward is
transferred to the seller.
4)The subject matter should be a property having value.
5)The subject of sale should not be a thing used for an un-Islamic
purpose.
6)The subject of sale must be specifically known and identified by
the buyer.
7) The delivery of the subject matter to the buyer must be
certain.
8)The certainty of price is a necessary condition for the validity of
the sale.
9)The sale must be unconditional.
Exception is given to bay al-salam (forwarding
contract), bay al-istisna (contract of manufacture) for
the legality of subject matter.
Condition of al-Salam
1) The jurists from various schools of thought agreed that al-
Salam is permissible as long as it observes (4Ps + 2Qs):
- Product: Types of goods are clearly stated
- Period: The duration is clearly stated
- Price: The amount of capital/price is clearly stated
- Place: The delivery place is clearly stated
- Quality: The characteristics/specifications are clearly
stated
- Quantity: is clearly stated
4) The price of Salam is normally lower than the cash & deferred
payment. The jurists agreed upon full payment by the purchaser,
so he should be given a discount price.
6) Must not involve ribawi items from the same category (Currency with Gold /
sugar with salt). These items must be effected on the spot basis. Paper money can
be used only in payment of a price, it cannot serve as a commodity to be sold.
7) Availability of commodity –
Hanafi: The commodity remains available in the market right from the
day of contract up to the date of delivery. Unavailable commodity – salam cannot
be effected though it is expected will be available at the date of delivery.
Others: Availability is not a condition for the validity of salam. What is
necessary, should be available at the time of delivery.
8)Time of delivery –
Hanafi/Hanbali: The time of delivery is, at least, 1 month from
the date of agreement. Earlier than 1 month, salam is not effected. Argument:
Salam is allowed for the needs of farmers/traders, then should be given enough
opportunity to acquire the commodity; less than 1 month does not normally effect
the lower price than the price in spot sales.
Imam Malik: Should not be less than 15 days – because the rates
of the market may change within a fortnight.
Imam Shafie: The Prophet has not specified a minimum period
for the validity of salam. The expediency may differ from time to time and from
place to place. (Taqi Usmani, 2005).
49
Legal Evidence
A) Quran:
1) “Allah has permitted trade and forbidden
interest”. (Al-Baqarah, 2: 275).
نم طنا ُ شاَطْي ناَ
ط ُهم ال َّ
مم اَّلي يِذ يم ناَيناَتخناََّب ُ منام ناَي ُقمو ُ نم إ ي يَِّلم ناَك ناَ نم الَبِّرناَبنام ناَلم ناَي ُقمو ُممو ناَ نم ناَياَطْأ ُك ُلمو ناَ
اَّلي يِذي ناَ
عم
لم الَّلُهـ ُهم ااَطْلناَباَطْي ناَ
ح َّ لم الَبِّرناَبناو وۗ ناَوأناَ ناَ
عم ي يِماَطْث ُ
منام ااَطْلناَباَطْي ُ مم ناَقنا ُلموام إي يَِّن ناَ
كم ي يِبناَأَّن ُه اَطْ
ِسو وَ ذۚ ناََٰذي يِل ناَ
م َبّ نم ااَطْل ناَ ي يِم ناَ
مم الَبِّرناَبناوَ ذۚ حَِّر ناَ ناَو ناَ
B) Hadith:
1) Jabir bin Abdullah reported that a woman
had said: “O Rasulullah! Would you like me to make
something for you to sit on it (during the khutbah)
since I have a slave who is a carpenter. The Prophet
replied: You can if you want. So the woman made the
rostrum (minbar) for Him”.
عنم جنابِرم بنم عبدم ام أنم امِرأةم قنالتم ينام رسمولم
ام ألم أجعلم لكم شيئنام تقعدم عليهم فناءنم ليم
غلمنام نجنارام قنالم انم شئتم فعملتم المتنبِر
54
Conditions of Istisna`
1) Detailed specifications: Category, quantity and
characteristics of products. To avoid ignorance
(jahalah).
Asset risk Asset risk is transferred to Asset risk remains with the
the purchaser soon after owner (lessor) and the
delivery of the item to him lessee has to give rental
and he has to pay the price only if the asset is capable
irrespective of what of being used as per normal
happens to the asset. market practice.
والحمد ل رب العالمين
جزاكم ا خيِر
الجزاء
THANK YOU