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CONTRACT
2. SUBJECT-MATTER
The second essential of a contract after sighah is its subjectmatter.
Meaning of subject-matter
The term subject-matter applies to commodity,
consideration, performance and object of contract.
CONDITIONS OF SUBJECTMATTER
Islamic law has laid down the following conditions
for the subject-matter.
1. Legality of subject-matter
Subject-matter of contract must be legal or halal. It
is forbidden for a Muslim to acquire or transfer
through contract any thing that Shariah has
declared haram. Like wine, pig, blood or animals
which have died naturally or have not been
slaughtered according to Islamic teachings,
intoxicants and prostitution.
Muslim jurists in general, hold the view that the sale of nonexistent object is invalid. They based their opinion on the
tradition of Holly Prophet(P.B.U.H):
Sell not what you do not have
The only exception to this rule is Salam Sale. Where the
purchaser pays the price in advance while delivery of the
subject matter is postponed to a specified future date. The
commodity of salam sale must be those things which can
be determined in terms of quality and quantity.
3. Certainty of Delivery
The ability or capacity to deliver the subject matter of the
contract at the time of entering into the contract, is an
essential condition to make a valid contract. If such
capacity is lacking then the contract is void. This
condition is applicable to contract of sale, mortgages and
pledges. Thus, in a contract of sale the purpose is that the
buyer should be able to exercise the authority and benefits
of an owner. If such a capacity is missing the purpose of
contract fails. Therefore, the Muslim jurists prohibit the
sale of fish which is still in the water or bird in the air.
The
5. Legality of object
A valid contract requires that the object and underlying
cause must be legal. Any agreement for commission of
illegal activity or which promotes immorality or is against
public policy or harmful to a person or property or which
is forbidden by law, is also illegal or unlawful and deemed
void and of no legal effect. Such as
A contract for the use of property in commission of an
offence.
Selling a weapon with the knowledge that the buyer will
use it for killing innocent people.
Sale of grapes to a person, who will extract wine from
them. Such contract of sale is invalid because the intention
and motivating cause is unlawful.
CAPACITY OF EXECUTION OR
AHLIYYAT AL-ADA
Definition
The capacity for execution is capacity of a human being for
the issuance of words and performance of deeds to which
the lawgiver has assigned certain legal effects.
There are three kinds of capacity of execution.
DEFICIENT CAPACITY OF
EXECUTION
Deficient capacity is assigned
To a non-pubert who possesses some discretion, and
To the lunatic, who has attained puberty but lacks
complete mental development.
A person who possesses a deficient capacity is not subject to
kitab al-jinai. He cannot be held criminally liable.
COMPLETE CAPACITY
Complete capacity is established for a human being
when he attains full mental development and
acquires the ability to discriminate.
The requirement of this capacity is
Reason (aql)
Discretion (rushd)
Such a capacity has been associated with an external
standard of puberty.
CIRCUMSTANCES WHICH
AFFECT THE LEGAL
CAPACITY OF A PERSON
There are certain factors, which impairs legal capacity of a
person and prevent him from concluding contracts and
making dispositions in his property.
1. Junun (Insanity)
Junun is the mental derangement, prevents a person from
entering into transactions .
3. Forgetfulness
Forgetfulness is defined as a circumstance that befalls a
man without his volition causing loss of remembrance of
something.
According to majority of jurists a contract concluded by
mistake or forgetfulness is not a contract at all. According
to the Hadith of Prophet (PBUH):
My Ummah is forgiven for that which they have done
through mistake or forgetfulness or under coercion.
6. Intoxication
Intoxication is a condition which overtakes a man on
account of taking an intoxicant and along with it his
intelligence remains suspended, being neither lost nor
diminished.
The drunken person is one who is in a state of
intoxication due to the consumption of liquor and
does not know what he is saying.
According to majority of jurists a contract is
established by a drunken person is valid and give rise
to all kinds of rights and duties because he became
intoxicated out of his own choice and he knew that
drinking is prohibited .
7. Taflis (Bankruptcy)
A person is considered bankrupt when his debt exceed
his assets, and court on the demand of his creditors
passes a prohibitory order restraining all alienation by
him, and direct the sale of his property for the benefit
of his creditors.
The purpose of al-hajr is to restrict al-muflis (bankrupt)
in the right of disposal of his property, is to safeguard
and protect the right of creditors and to prevent him
from caring out transactions detrimental to his
creditors.
8. Coercion/Use of power
Coercion is to compel a person, without having such a
right, to do a thing without his consent or through
fear.
Contracts made under coercion are not valid
according to majority of jurists.
According to Hanafis, contract under coercion is valid
but is suspended, on the extinction of coercion.
Mukrah (coerced person) has right to ratify it or to
revoke it.