You are on page 1of 12

c  c c

c

c c c 

?
V  
?????????????????????????????????V
  
?
V  

??????????????????????????????????› 
??????????????????????????????????????????????????????
?

 
„ 
„ „ 

  

„ „
 „
!"#$%&$'( $))$%*)%*('%












„ „ 


Ñ? ? ?
 ?  ?? ??
?
?
 ? ?? ??  ?
Ñ???
?? ?
?  ? ??
  ? ? !!?  ?
Ñ?????? ? ??  ???
" ? ? #  $? ? ? ? ?
?
??

?
?  !?$? ?    ? ?
?
%???
?&????? ?
Ñ' !!?( ???! ! ? ? ?
 ? ? ?
"?)? ? ?
 ? ? ?  ? ?*?
! ?
+ *?? ! ? ? ?*)!??
?
 ??? ? ?? ??? ??  ? ?
?!?
! ??* ??? ?
 ??
 ? ? ?
 ??? ??*?
 ?   Aqd literally means tying tightly, as tying a rope.
'Aqd carries the meanings of u 


, as we
read in the Quran surah Al Maidah:?

?
?

??? 
?  ??? ? ? ? ? ???
  ?????? ?? ???
? ?????? ?!????? ?
"?????#?$??!6?

cn another verse of Quran (An Nahl verse 91), we read Allah's


command to the faithful to keep the obligations, which He had
imposed on them when they embraced belief:?
????????????

?
?
?
 ??% ? ?"??? ?????&??
 ?? ?? ? ???? ??"? ?
 '? ?"?&??? ?ë?
?
?,  ??-?! ? ??.*!??
? ? ?- ?
?! ?? ? ??!?*?
? ? ??
?! ??- ?? ? ?? ?? ? ? ?? ? ?
 ?
+ !? ???? ??
?
?
 ????!!  ? !*? ? ??*! ??
 ? ?? ? ? ?!!  ??  ? ???
?

! ? ?? !? ? ?*)!?? ? ?! !?


?
?
 ? ??* ? ?
? ?!  ? ? ??!?

?? 
/?
?????????????????????????????????????????????????????????????
0
?surah Al Maidah verse 1:?
1
?(An Nahl verse 91)?
'??* ?2* /??? ?
? 3?' ?*? *??
 ? ? ? ? ? ? ?? ?
 ? ? ?  *?Õ?
4 ? ?   ? ?" ?"56,?7 ? ? ?/?
8*?? * ?? ?!   ?9 ??5* ?3?
7! ?!   ? ??
*?
??*
*? ? ??*
*?

??
*? ?? ?! *!? ? ??   ??
?
?

ÊÊ Ê ? ?%?"()?


According to Hanafi, the elements of µAqd include anything that manifests
the meeting of two intentions either through conduct, gesture or writing.
Therefore the elements of contract include only c ab & Qabul. Some other
matters are not considered as elements of a contract however their
existence is necessary. For example it is necessary that there must be
contracting parties in order to have i ab & qabul. Similarly there must be the
sub ect matter upon which the parties have the agreement to indicate that
there is the meeting of two intentions.

|uu     .


Elements of µAqd is:
Sighah (c ab &Qabul)
   
Elements of µAqd is:
Sighah (c ab &Qabul)
Contracting Parties (aqidan)
Sub ect Matter (ma¶qud alayh)
|uu    .

Sanhuri an eminent contemporary Muslim urist has cited seven component


elements in a contract these are:
1. The concurrence of offer and acceptance
2. Unity of the ma ilis of the contract.
3. Plurality of contracting parties
?????????????????????????????????????????????????????????????
:
?* ?2* ?;/<?
Ô. Reason aqul or the power of distinction tameez of the contracting
parties.
5. That the sub ect mahal is susceptible to delivery.
6. The sub ect mahal defined and,
7. The beneficial nature of the sub ect in that it is permitted for trade in.
We have however, followed here this scheme of the earliest urists.

? ? ???? x |?


??????????

Mutual consent of parties is the basis for formation of a contract.


Sighah is a method to manifest the intention to contract. ct consists of c ab &
Qabul.
Sighah is defined as the utterances that indicate the between the
contracting parties.

x || 


The contracting parties are the parties who exercise the Sighah of i ab &
qabul. cn order to conclude a valid contract, the contracting parties must
have legal capacity.

?
? ? x ???!"# | 
????????

!"#$%&$'( $))$%*)%*('%
?
The second essential element is its sub ect matter, which includes a
number of things: namely, commodity, performance, consideration and
sub ect of the contract.
The term ³sub ect matter ³is applied the all of things. cslamic law does not
hold consideration as independent elements of contract. The reason is that
the contractual obligation of one party according to cslamic law is
consideration for the contractual obligation of the party. cn contract of sale,
for instance, the commodity is the consideration for the purchaser and price
is the consideration for the seller. The sub ect of the contract is also
covered under sub ect matter.
Muslim urists had laid down four conditions for the sub ect matter:

1. ct must be in existence at the time of the contract


2. ct can be delivered
3. ct can be ascertained
Ô. ct must be suitable for transactions according to Shari¶ah.?
? ?5.?pegality of ob ect and underlying cause?
?
?
1.  $u   % .
The sub ect matter should either been actual existence at the time of
contract or it should be capable of being accrued and delivered to a
prospective buyer in the future. Transactions which involved an element of
uncertainty and risk with regard to the existence and acquisition of the
sub ect matter forbidden in cslamic law.

‡ cslamic law requires that sub ect matter must be in existence at the time
when an µAqd is concluded. Otherwise an µAqd is void, even if the sub ect
matter would exist in the future.
‡ 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 (ale by advance payment for the future
delivery), bay al-istisna (contract of manufacture), iradah (contract of hire)
and musaqat (contract of irrigation) based on necessity and customs.
For instance:
1. Fruits on tree at the beginning of the season when their quality is yet
to be established:
2. Sale of fish still in water:
3. Milk in the udders of an animal.
Ô. Sale of standing crops (which are not free from getting spoiled) and:
5. Feotes yet in the mother¶s womb.

Commenting of the practice of selling fruits tree¶s before they begin


blossom. Anwar iqbal qureshi writes.
³ct is unfortunately a custom with us that fruit trees are sold before they
begin to have blossom¶s upon them. This is known as spring sale. This
spring sale, for instance, of mangoes is affected before trees begin to have
blossoms. The natural consequence of this is definite loss to one of the
party of the transaction. what happens usually in such transaction is that
people make a general estimate of the fruits in produced, but no one can
be aware of the unknown in which case this amount of a form of gambling
The 
& &   (s.a.w.w) says:
'

 (   )

x$* 
explains the view of the fuqaha on this issue in the
following words.
³The ob ect of contract must be present during the contracts session
contracting over a non-existence ob ect is invalid, like selling crops before it
is visible, on the assumption that the crops might not appeared equally
prohibited involving what is known as the fear of non-existence khaddar al-
Adam like the assumption of that fetus might not survive upon birth. This
requirement is mandatory in the hanafi & Shafi School, regardless of
whether the transactions involved commutative m¶uawadat or gratuitous
tabarraut contract.
Any transaction involving madum is void whether the case is sale-bay gift
hiba or pledge rahn. This view is based on a tradition of the prophet
(s.a.w.w) where he is reported to have prohibited the sale of fetus of an
animal bay-habal al hablah as well as the sale of embryo al madamn and
sperm al amalaqih .he is also report to have prohibited people from dealing
in transaction where the seller did not possess the sub ect. This is because
sub ect was treated as ma¶dum during the contract. they have establish an
exception to this general rule,i.e.,the prohibition o0f bay µ al-ma µdam in
cases pertaining to sale by advance (salam ), contract of manufacturing (
istisna ).these transactions are approved, despite the absence of the
ob ect of contract, by way of istisna ( uristic preference ) in order to cater
for the needs of mankind´.
?

2.  $u  u$


 .

The ability or capacity to deliver the sub ect matter of the contract at the
time of conclusion of a contract is an essential condition to make a valid
contract. cf such a capacity is lacking, the contract is void and this position
is not altered by the fact that the seller was able to deliver the goods after
the time of contract. This condition is applicable to contracts of sale as well
as mortgages and pledges. The condition is dictated by the nature of the
contract and the purpose, which such contract is supposed to serve. The
Muslim urists therefore, prohibit the sale of stray animal, whose
whereabouts are not known, or fish in the sea or birds in the air.
‡ cslamic law requires that sub ect matter must be able to be delivered to
the contracting parties. Otherwise an µAqd is void. Furthermore the delivery
must be possible without causing any damage to the sub ect matter,
otherwise the µAqd becomes voidable.
cf the parties tolerate the damage, then the contract is valid.
‡ Hence, it is void to sell a bird on the sky, fish in the sea or runaway horse.
?
3.  $u   $u  $
.
The general principle in cslamic law is that the sub ect matter must be
precisely determined as regards its essence, quantity and value. Similarly,
if the sub ect matter is an obligation or performance, it must be precisely
determined at the time of the contract otherwise the contract will be invalid.
An example of indetermination with regard to genus is where a seller was
to sale ³c m selling you an ewe from this flock or a dress from this bundle´
Such sale is irregular (fasid), because the particular ewe or dress has not
been indicated. The sub ect matter is ascertained by the acquisition of the
knowledge that does away with all uncertainty and vagueness likely to lead
to dispute among contracting parties.
Some urist allows a sale even if the goods have not been examined or
described; this is achieved by granting to the buyer to the option of the site
or examination after their contract.
‡ cslamic law requires that sub ect matter must be ascertainable and known
to contracting parties. Sufficient knowledge about the sub ect matter is
necessary to avoid future disputes.
‡ cf the sub ect matter of the µAqd is of different kinds or articles, it is
necessary to determine individually. But if it is of similar articles, it is
sufficient to determine one to here article in order to attain knowledge of the
sub ect matter.
?
? ???????????Ô.  $u   $

.

The commodity service or performance must not include things prohibited


by the Shari¶ah like wine, pork, intoxicants and prostitution. ct is forbidden
for a Muslim to acquire or transfer through contract ant thing that the
Shari¶ah has declared haram. Since adultery, obscenity and immorality are
prohibited by the Shari¶ah any contract or transaction that entails these
evils or promotes them in any way is also forbidden. From this it is
established that the sub ect matter of a contract must be such in which
transactions are legally permissible. The list of things prohibited by the
Shari¶ah has been affirmed the Quran and the Sunnah.This includes wine,
flesh of swine, blood or animals, which have died naturally or have not
been slaughtered according to cslamic teachings.
The legality of sub ect matter further requires that the commodity should be
owned by someone. Thus, public property is excluded and cannot be the
sub ect matter of a contract. The same applies to the other things, which
are yet to be owned like fish in the sea etc. As regards public property,
however, the state in nowadays considered similar to person capable of
owning property.
pegality of sub ect matter also requires that there should be no
encumbrance or right attached to it. An example in this regard is sale of
mortgaged or right attached to it. An example in this regard is sale of
mortgaged property to which the rights of the creditor/mortgagee are linked.

‡ cslamic law requires that sub ect matter must be of commercial value,
otherwise an µAqd 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 be acquired gratuitously without
purchase, such as fish in the sea, bird in the air, etc, but once acquired, it
can become the sub ect matter of transaction.? ? ? ? ? ?
? ? ? ? ? ? ? ? ? ? ? ? ?
? =? ? ?
 ? ?  ? ?

The validity of the contract requires that the ob ect and the underlying
cause must be legal, thus a contract made for a use of property in
commission of an offense, when the parties know this fact is unlawful.
Similarly, selling weapon at a person who will kill an innocent man with it is
illegal, if the seller has inn knowledge of this fact.

ct means that the intended ob ectives if the contract should not oppose the
will and intention of the law giver.

cn this regard the eminent urist cmam cbn Ap Qayyim writes.


³The proves and rules of the shari¶ah indicates that intentions are taken into
accounts in contract that affect their validity and invalidity, and lawfulness
and unlawfulness of a contract, but more seriously that it effects the action
which is not a contract with respect to making it lawful and unlawful the
same items becomes lawful sometime is and unlawful at other times
depending on variation of intention and intended ob ectives. ? ?
? ? ? ? ? ? ? ? ? ? ? ? ?
? ? ? ? ? ?

? ?
„ „  ?
?
???
 ?
?   ? ?? ????
?
? ??

?  ??  ?
? ? ?
?   ? ?
? ?
 ? ? ?
? ??  ?
?
?
?
?
?
?
?
?



















"+*,'-.
?
 -//+&%01*'+ 2($/$%*(*&%/%*('%2&
?
??? ? 
?
?
   
?
?
1112+&%"(3$'2%*&/+&%0%*('%0+12&+?
?
?? ?
 ?
?
? 
 
?
?? ? ?
 ?
?
?
?
?
?
?
?

Related Interests