Professional Documents
Culture Documents
(ECON 3510)
TITLE:
APPLICATION OF THE LEGAL MAXIMS IN
ISLAMIC COMMERCIAL TRANSACTION
SECTION: 05
LECTURER: SOUFIANE BOUREGA
STUDENTS NAME
MATRICS NO.
1321976
1320546
1320096
1320890
1320676
TABLE OF CONTENTS
NO.
CONTENT
1. Introduction
2. Legal Maxims And Its Application In Islamic
3.
4.
PAGES
3-4
Commercial Transations:
1) Matters Are Determined According To Intention
2) Certainty Cannot Be Removed By Doubt
3) Hardship Begets Facility
4) Necessity
Renders
Prohibited
Things
5-8
9 - 13
13 - 15
16 - 19
Permissible
5) Harm Should Be Eliminated
Conclusion
References
19 - 21
22
23
INTRODUCTION
Maxim is defined by the jurists as a general rule which applies to all its particulars. Legal
maxims are generally the applicable principles which relate to transactions (muamalat) and
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extraction (takhrij) of guidelines from the detailed literature of fiqh that were contributed during
the first three centuries of Islamic scholarship.4
5 See also Kamali.M(n.d), Principles of Islamic jurisprudence, Islamic Text society, Cambridge
6Ibid (Karamali 2007)
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direction or the place that one intends to go, or the meaning that one intends to deliver. In Islamic
terminology, An-niyyah is widely used to decribe the intention of the heart to perform an action
for the sake of Allah. 9
Taking intention into consideration in whatever things that we are doing is important
since it affects the outcome of the actions. A good action can turn to evil if it is performed with
evil motives and bad. Meaning that, intention differentiates between good deeds and evils as well
as distinguishes the habitual actions from an act of worship.
In transactions, a mere inward intention does not have any legal consequences as it is not
known to others. Intention only becomes important of it comes with action. In this case, the
action will be judged according to its real intention. For example, if a person finds a certain
property and takes it with the intention to return it back to its owner, his action is considered as a
good deed. However, if his intention of taking the property is to keep the property as his own, he
is considered as violating the right of ownership and is doing an evil. The physical act; finds a
property and takes it, is identical in both cases but the consequences/effect is different according
to the intention.
Similarly, a certain transaction is judged based on intention. When the intention and the
wordings of the agreement are contradicting to each other, the consideration should be given to
the intention, not to the literal meaning of the words. According to the Majelle, in contracts, the
effect is given to the intention and meaning of doing the contact, not to the words and forms of
the contract. For instance, in a contact of lease (ijarah), the rental fee is charged while in the
9 http://www.agc.gov.my/index.php?option=com_content&view=article&id=882:matters-aredetermines-according-to-intention&catid=71:admin%20ag&Itemid=91&lang=bm
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contract of borrowing (iarah), there is no rental fee charged. If two person concluded a contract
as the contract of borrowing (iarah) but the borrower needs to pay some amount of money as
the rental fee, the agreement will be regarded as a contract of lease (ijarah) since the intention of
the parties and the real meaning of the contract indicate indicate that it is a contract of lease
(ijarah) even though the wording said that it is a contract of borrowing (iarah).10
A contract is considered as valid and gives effect to both parties if there is an existence of
intentions when the words are given. For example, if there are two people who do a contract by
giving a word to give a good with payment in the return and to received a good before the price
is fixed, the contract is concluded as a contract of sales and purchases. This is because the final
contract to buy or sell was intended by them and not just a meaningless verbal contract.
Therefore, all words spoken by a person who has no intention to deed, as spoken by a madman, a
drunken man or by the one who was asleep, did not give any effect and the contract will not
exist.11
However, if the intention could not be ascertained, the effect should be given to the literal
meaning of the words. The rule states, We give judgement on the basis of the apparent, God
takes care of the inward intention. In this case, the intention is judged based on the words that
are used in the agreement. The Mejelle also states, in hidden matters, about which it is hard to
ascertain the truth, judgement is formed by the apparent evidence about them.12
10 Dr. Muhammad Yusuf Saleem, An Introduction to The Theoretical Foundations of Islamic
Transactions (p. 36)
11 http://www.agc.gov.my/index.php?option=com_content&view=article&id=882:matters-aredetermines-according-to-intention&catid=71:admin%20ag&Itemid=91&lang=bm
12 Dr. Muhammad Yusuf Saleem, An Introduction to The Theoretical Foundations of Islamic
Transactions (p. 37)
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successful
and
whatever
they
follow
will
never
lead
them
to
the
right
path.
The prophet (S.A.W) said: "if anyone of you feels anything in his or her stomach then he is
confused of whether anything has come out of it or not, he should not go out of the masjid unless
he hears a sound or gets a smell". Imam Al-Nawawi explained that this Hadith remarked that it is
a great maxim of Islamic law that is the affairs should be judged to be on their original condition
unless the opposite is certainly proved.
If any doubt arises later this doubt would not hamper the certainty that had been
originally established for those affairs. The prophet (S.A.W) said: "if forgetfulness arises to
anyone of you in his or her Salah or prayers and he or she has doubt or not certain of whether he
or she has prayed one Rak'ah or two , he or she should consider that they have performed one
Rak'ah. Likewise if a person is not certain of whether they have actually performed three Rak'ahs
or four , he or she should consider that they have performed three , a person should prostrate
twice before he or she completed his prayer by saying the greeting ( Salam ) . This Hadith
provided the basis that certainty cannot be removed by doubt.
In the case of performing specific Ibadah that is prayer for instance , a person shall accept
that he has prayed at least one Rak'ah in the event where they are not sure or having doubt
whether they have actually performed the prayer either one rak'ah or two during the prayer. The
certainty of having prayed one Rak'ah, therefore cannot be removed by doubt that has arisen
regarding the second Rak'ah. In second case it is certain that this person has at least prayed
completed two Rak'ah of his prayer. The certainty of praying two Rak'ah is therefore cannot be
removed by the doubt that arose for the third. This Hadith essentially highlighted that there is no
room for doubt and if a person is in doubt of anything then he should disregard the doubt and be
affirmed on certainties in the matters under consideration.
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The second proof according to Abbad bin Tamim who said: My uncle asked Allahs
messenger about a person who imagined to have passed something during the prayer. Allahs
messenger replied: Do not leave (from the prayer) until or unless he hears a sound or smells
something.
Whispering from the devils (waswasa):
We should mention here, the issue regarding insinuating whispers from the devils, known
as waswasa in Arabic. Many people suffer from this illness unknowing. A person may start to
have doubt in everything: in matters of ritual purification, daily prayers, purification of the body,
purity of garments, menstruation cycles and other things. However, if this simple rule of
fiqh, certainty is not removed by doubt was applied, the confusions and all the unnecessary
actions, which stems from the insinuating whispers could be avoided. If a person is suffering
from insinuating whispers unrestrictedly in matters of belief, the cure for this is to totally ignore
these thoughts as indicated by the Prophet. However, if a person is suffering from doubts
pertaining to worship, applying this rule of fiqh would save the person from a great deal of
trouble and it would put ones heart at ease.
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it , you must get a evidences to say that companys activities is illegal. If you do not get
any prove , you may proceed with your invest.
f) If the situation is like you change supplier of your product .you must make sure you do
not have any doubt where they get the raw material and produce it . for example , food.
You want to buy raw material such as chocolate , flour to make a chocolate cake. You
must buy the raw material from halal supplier. If you certain about that suppliers product
, you can proceed to buy it. If you have any doubt later , doubt it is not counted as long as
you have prove that the company is halal company.
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Allah does not give anyone legal responsibility for anything except what is
within his capacity (2:286)
Hadith :
You have not been sent like those who have been given hardship. Rather,
you have been sent as those who have been given ease or facility
(Narrated by Bukhari and Muslim)
Aishah r.a said: Whenever the Prophet (s.a.w) was given a choice between
two things he chose the easier one unless it was a sin
(Narrated by Bukhari and Muslim)
Surely Allah (s.w.t) introduced the din as easy, full with kindness, and
wide. He did not make it narrow
(Narrated by Tabarani)
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If someone enters into a rental contract (ijarah) and later on he has to travel for certain
reasons, he is allowed to cancel the rental contract. Under a normal circumstance, a person is not
allowed to cancel this type of contract unless it is agreed between the contracting parties
beforehand. However, forcing a person to continue paying the rental when he is not occupying
the premise, will amount to hardship, therefore the Shariah is allowed the cancellation under
specific circumstances in order to avoid hardship. So, in this case also, this principle can be
implemented.
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First of all, literally this principle of legal maxim means necessities that allowed haram
things. It also can be defined as necessities that give guidelines or justifies which is unlawful or
prohibited according to Shariah. Moreover, The Mejelle states Necessity makes forbidden things
canonically harmful. It can be derived from mention definitions stated that unlawful things no
matter regarding aqidahor transaction are allowed under extreme situations (darura) given that
there are no other permissible alternative.
Guidelines
Furthermore, there are some listed guidelines (dabit) or certain restricted interpretation to the
extent that when this maxim is actually required. Technically, one of the guidelines is verify what
kind of case that constitutes an extreme circumstance (darura). Literally, darura means necessity
or emergency. It shows that a certain situation which is aspects of the Shariah may be suspended
in order to protectlife,religion,property,mind or offspring. It can be said that darura is
indispensable for the safeguard of the five essentials values that are mentioned earlier such as
religion, life and etc. Basically, when darura exist, it would give the believer or the follower of
Islam a legal excuse to commit the unlawful, provided that it necessary to indispensable for his
survival physically and spiritually.
Next, when a person is permit to commit prohibited in the cause of darura, he or she can
never oppose, deny or forget about the original ruling of its prohibition. Besides, another
guidelines need to be particularly taken serious consideration is when a certain cause or necessity
situation that renders the prohibited things permissible ceases to exist, return to original principle
is required. Further explanation from The Mejelle states A thing permitted on account of an
excuse becomes unlawful on the cessation of the excuse. For instance in order to have better
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understanding, consume pork in the darura situation no longer valid or permissible in Islam
when there is existence of other halal foods.
Evidences
Quranic ayat:
He (Allah) has forbidden dead meat or carrion, blood, the flesh of swine, and that which is
slaughtered on which Allah's name is not mentioned, but if someone is forced by necessity
without willfull disobedience nor transgressing due to limits then there is no sin on him
( Al- Baqarah : 173 )
Anyone who (after believing) utters unbelief except under compulsion, his heart still remains
firm in his belief, but who so ever's chest is open to unbelief, on them falls the wrath of Allah,
and there awaits them severe chastisement. ( Surah An-Nahlu:106)
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Applications
Technically, there are some examples where this legal maxim principle would be applied in
certain circumstances. Firstly,example like in the case where there were 2 persons travelling
together far away from their hometown, which suddenly one of the traveller die due to sickness
in a place where no judge can be found and left with the living traveller some valuable properties
owns by died traveller. Unfortunately, later the living traveller met with the evil thief force him
to give money in cash and threaten his life. He is allowed to sell or make any type of transactions
of the property of his companion without any legal power or instruction given by died traveller
before, as long would generate the cash money. However, under normal circumstances none is
allowed to sell the property of a dead man who is neither related to him, nor has issued any legal
power for selling the property, but in this case, if the above living person does not sell the
property of his companion it would be cause danger to his life (darura).
Another example of situation or its application in Islamic commercial transaction is Bay AlWafa. Literally, it means sale with right of redemption. Basically, can be defined in situation
when there is a person in need of cash but owns certain property. He decided to sell that property
to the buyer in a condition that the he will be allowed to get the property back upon completed
paying the property price. However, this type of sale contract are condemn by majority of the
jurists due to the hidden reality of this sale is that a loan that may involve riba and additional
benefits upon payment of repurchasing the property. Nevertheless, Hanafis argued based on this
maxim on its validity because of to help people that deeply in need and there are no other
alternative to help him survive or continue his life without harm or starvation. Need to be
highlighted that even though its permissible, yet this rule is not absolute but it is limited by
certain restrictions, by the extent of the necessity and by the time of the necessity.
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This maxim is taken from the Prophets hadith which is (la dararawa la dirar) and it is
stated harm should neither be inflicted nor received. It means that all kind of injury should be
removed or eliminated. Islam does not allow us to harm people or to let others harm us. The
word haram in this maxim is general and it includes all kinds of harm that involves individual,
society, environment or any other matters. As in Islamic commercial transaction, a firm is
prohibited from impose injury or causing grief to others while dealing with economies and
business activities. Besides, this maxim provides a guideline to regulate the entire financial
system in such a way that prohibits harm imposition and discourages retaliation.
There are four sub-maxims are included under this maxim which:
1) A particular harm could be accepted to repel a common harm
A private injury is tolerated in order to ward off the public injury which means
that to repel a public damage, private damage is preferred and warding off public injury is
given preference over personnel injury. For example, under the normal condition,
Shariah allows free market operation. But in case traders manipulate the market for large
profits in a manner that harm the interest of the consumers or general public, the
government may take action to regulate the price to protect the interest of the consumers.
By doing so, the government will be preventing the general harm by tolerating a
particular harm. Another example is when dealing with bankruptcy case, it is allowed to
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sell the bankruptcy debtors asset who is under custody for the interest of the creditors
because the injury of selling the asset of the debtor is a private injury, and by not selling
the asset of the debtor we prevent the creditors from getting their right which is
publicinjury.
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Shariah, that the buyer concluded the contract on condition that the object of sale was
not defective. Another example is that if anyone sells anything that could rot quickly,
such as fruits, and the buyer disappears before the payment of the price and before
receiving the sold items, the seller in this case is allowed to revoke the sale contract and
sold the said item to another person, if he fears that the sold item will be spoiled. This is
to prevent loss to the seller which will harm his business.
CONCLUSION
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Practices of commercial transaction are permissible in Islam and must avoid in such
activities that is prohibited. Islamic legal maxims are very important to the economic and
business activities to the Muslim people since even when they are conducting their business
activities they should behave according to the Shariah and with a good intention to please Allah.
Besides, it is also important for the Muslim these legal maxims in order to protect the right
between two parties.By applying these legal maxims, a Muslim society is controlled and
governed by the set of laws of the Shariah. Other than that, it provides the means to find the way
out of conflicts among the members of society.
REFERENCES
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