Munir Mansuri

Terms used for Contract

Mithaq )(: A firm determination on the part of parties to fulfill their contractual obligation. Used in Quran in the sense of covenant, treaty or mutual alliance.
Ahd-Unilateral promise or undertaking, Aqd ) (-Implies obligation arising out of mutual agreement. A legal relationship created by the conjunction of two declarations, from which flow legal consequences with respect to subject matter
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Permissibility
What is not prohibited is permissible, Every contract is permissible unless it contradict Shariah injunctions and rules given in Quran and (Sunnah) explained by the Holy Prophet ()
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Quran about contracts

Nay.- Those that keep their plighted faith and act aright,-verily Allah loves those who act aright. (3:76) O ye who believe! fulfil (all) obligations (5:1) and fulfil (every) engagement, for (every) engagement will be enquired into (on the Day of Reckoning) (17:34).

Types of sale
1. 2. 3.

Valid sale ( Bai Sahih)

Void/Non effective / existing Sale ( Bai Baatil ) Existing sale but void due to any defect ( Bai Fasid )

4.

Valid but disliked sale ( Bai Makrooh )

Bai Sahih
A sale is valid if all elements together

with their conditions are present; Elements of valid sale are Contract with Offer & acceptance Subject matter ( Mabee) Price ( Thaman ) Possession or delivery ( Qabza )

Mabi
Existing / Existable Valuable Usable Capable of ownership/title Capable of delivery/possession Specific & Quantified Seller must have title & risk

Gharar
Sale of debt Assignment of debt

Bai Batil
Major conditions are not met. These relate to:
conditions of offer and acceptance conditions for Buyer and Seller: Sane AND Mature conditions for Sold Goods, goods should be:

Existable, Valuable, Usable, Capable of ownership/title and Capable of delivery/possession

Bai Fasid
Sale will exist but will be void due to defect because of

non compliance of conditions of contract; it needs to be cancelled or defect removed

If the defect is rectified the sale becomes valid

Some void contracts

Forbidden and void contracts which involve gambling are:

gharar, riba and

- Bai al-Mulamasah - Bai al-Munabazah - Bai al-Hisat - Bai Habl-il-Hablah - Bai al-Madhamin - Bai al-Malaqih - Bai al-Gharar - Lending and borrowing with interest - Betting

Legal Elements of a Contract

There are three factors necessary to create a contract:
1) Offer and

acceptance 2) The Contracting Parties and 3) Consideration (The Subject matter).

One party makes an offer, the second party must accept the offer and there must be consideration exchanged. Consideration has to be something of value.

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Ijab and Qubool

Ijab-what does it mean Signifies the willingness of a party to perform some function Does it include willingness of a party to abstain from doing something? The Contract Act 1972 says: When one person signifies to other person his willingness to do or to abstain from doing something, with a view to obtaining assent of the other person to such an act or abstinence, he is said to make a proposal
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Form (Sighah)
The basis to be considered in contract is the meaning

and not words and forms. That is why jurists have not fixed particular words for the formation of particular contract. Tense: To avoid Gharar, the words must be in past tense. The Jurists (except Humabalies) are of the view that contracts can only be concluded by writing.

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Conditions for Sigha

Conformity of offer and acceptance on the same

subject matter, Issuance of offer and acceptance in same majlis (same session). The Prophet SAS) said :
The contracting parties have the right of option until

they separate (Bukhari)

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Lapse of offer
The contract Act of Pakistan does not fix any time or

place during which or till when the offer remains effective. However, Section 5 and 6 deals with the question of revocation of offer.

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Causes of cancelation of offer

Withdrawal of offer by the initiator,
Death of a party, Refusal of the offer by other party, Termination of Majlis (session), Destruction of subject matter.

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Condition relating to Subject Matter (SM)

Legality (Halal) of SM, No haram can be a SM of a

contract, Existence of SM, Certainty of delivery, SM must be Precisely determined, Legality of Object and Underlying cause.

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Capacity of Contracting parties

Capacity of execution (Ahliyat ul Ada) Complete capacity: When a person attains full mental development and becomes able to discriminate,

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Factors
affecting legal capacity of a person
Junun, (Insanity), 2. Atah (Partial Insanity), 3. lack of memory (Majority do not allow such contracts while Ahnaf say that statements made by mistake or forgetfulness are valid for formation of contracts) 4. Safah (Weak intellect),
1.

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Marad ul Mawt, 2. Intoxication, 3. Bankruptcy, 4. Coercion (a person compeled to sign a contract (contracts made under coercion are not valid to majority of Jurists except the Ahnaf)
1.

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Bankruptcy
A person whose debts are more than his assets. Muaad bin jabal was always in debt. He requested Prophet (SAWS) to ask his creditors to withdraw their claims but they refused. The Prophet (SAWS) sold his property to pay the debts,
(RA)

The rule: To restrict al-Muflis (bankrupt) in the right of disposal of his property for the benefit of creditors

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Broad Principles
Free Mutual Consent
Prohibition of Riba Prohibition of Gharar

Prohibition of gambling (Qimar and Maisir)

Prohibition of fraud and Deception Prohibition of two Mutually Inconsistent or

Contingent Contracts Conformity of Contracts with Maqasid us Shariah

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cntd
Liability for Loss and Entitlement to Gain
Permissibility of everything except that which is

Prohibited

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Free Mutual Consent

Free mutual consent of contracting parties is a prerequisite for validity of a contract Contract made through compulsion, fraud, misrepresentation or an illegal mean or in state of intoxication, by way of joke or by mistake is an invalid contract

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Prohibitions
Prohibition of Riba,
Prohibition of Gharar Prohibition of Qimar (Gambling):Every

form of gain or money acquisition of which purely depends upon luck or chance, Prohibition of Fraud and Deception

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Prohibition of Gharar
That whose consequences are hidden (Hanafi)

"that whose nature and consequences are hidden" (Shafai) "that whose consequences are unknown" or "that

which is undeliverable, whether it exists or not." (Hambali) Mustafa Al-Zarqa: "Gharar is the sale of probable items whose existence or characteristics are not certain, due to the risky nature that makes the trade similar to gambling

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Prohibition of two Mutually Inconsistent or Contingent Contracts

Holy Prophet (s) prohibited from two

sales in one sale: Sale/purchase of an article on the condition of anothers sale/purchase, Contingent sale, Sale of single item for two prices

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Conformity of Contracts with Maqasid us Shariah

Any contract jeopardize the following

Objectives is invalid:
Preservation of Faith or religion (Din) Life, Nasl (Progeny)

Aql (Intellect),and
Mal (Property
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Liability for Loss and Entitlement to Profit

A person is entitled to profit only when

he bears the risk of loss

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Other Types
Lazim (Irrevokable): None of the

parties has right to revoke it (unless option is given to a party),

Ghair Lazim (Revokable): Such as

wakalah, Sharikah, Kafalah,

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Examples of Fasid contracts

Bai Majhul: Sale of an item where Price or Time of payment, Is unknown

Contingent contract: contingent upon uncertain event, Bai al Ghaib Bai al Inah, Two contacts in one contract
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In Islamic Banking

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Shariah Requirements
Shariah aspects of Islamic banking and finance revolve around Shariah requirements which refers to:
-

avoidance of every haram (prohibitions), and ensuring that the contract have all their essential elements with their necessary conditions

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The prohibitions are:

-

Producing and trading of haram materials, Producing and trading of materials which are of no use, Gharar, Riba and Involvement of gambling

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Two categories of Gharar:

1 - Gharar yasir, i.e. minor or slight gharar, and 2 - Gharar fahish, i.e. major or serious gharar
The Gharar that causes a contract to be invalid is major gharar. In general terms major gharar is: - an uncertainty which is so great that it becomes unacceptable, or - it is so vague that there is no means of quantifying it.

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More specifically major gharar arises out of one of the following:

-

Asset or merchandise does not exist; Asset or merchandise cannot be delivered; or Asset or merchandise is not according to specifications

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Riba
Riba means extra and it is of four kinds. Two kinds are sub-divisions of riba duyun and the other two are sub-divisions of riba buyuu. 1. Riba duyun (on lending and borrowing) This kind of riba is the extra amount of money over and above the principal of the loan either:

imposed by the lender upon the borrower in the contract; or promised by the borrower in the contract.

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Riba Duyun is sub-divided into: Riba qard i.e. Riba is imposed from the beginning. Riba jahiliyah i.e. there is no Riba at the beginning; imposed only in case of default.

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2. Riba buyuu (riba in trading transactions). This kind of riba may occur out of an exchange between two ribawi materials of the same kind where the necessary rule(s) are not observed. There is no riba in trading transactions where a ribawi material is exchanged with a non-ribawi material like money with a car; or a non-ribawi material is exchanged with another non-ribawi material like rubber with a refrigerator.

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Riba buyuu is divided into:

Riba fadhl i.e. the ribawi materials (of the same kind) exchanged are of different weights, measurements or numbers and they are exchanged at the same time.
Riba nasiah or riba al Quran i.e. the ribawi materials exchanged are of equal weights, measurements or numbers but payment of the price and delivery of the goods are made at two different times.

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Islamic banking does not give out loans. Therefore riba out of lending and borrowing does not arise. To avoid involvement with riba in trading transactions, Islamic banking must pay proper attention to the requirement that the buying and selling of the following matters must be on cash terms:

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(..continued) (i) (ii) (iii) gold in treasury functions for liquidity, silver in treasury functions for liquidity, and currencies, the currency of each country being considered as a kind, for hedging and payments of imports.

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Gambling
Gambling is betting or charging something that will be forfeited if one fails to obtain the greater gain that one hopes for. Speculation is not gambling. Some jurists say that speculation is prohibited, but contracts involving speculation are still valid.

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Forbidden Contracts
Forbidden and void contracts which involve gharar, riba and gambling are: - Bai al-Mulamasah - Bai al-Munabazah - Bai al-Hisat - Bai Habl-il-Hablah - Bai al-Madhamin - Bai al-Malaqih - Bai al-Gharar - Lending and borrowing with interest - Betting
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Islamic Muamalat
After taking out the types of muamalat (transactions) that are prohibited, those that are permitted can be divided into three broad categories as follows: 1. Trading Contracts. 2. Contracts of Profit Sharing. 3. Supporting Contracts.

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Trading Contracts
Some of the most widely used transactions are;

(A) Cash Sales

(i) Normal cash sales (ii) Sarf (foreign currency exchanges)

(iii) Exchanges between ribawi materials of different kinds and of the same basis (gold with money or wheat with palm oil)
(iv) Bai Al-Dayn (debt trading as in Bills of Exchange)

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Trading Contracts
(B) Deferred payment sales (debt financing)

(i)
(ii) (iii) (iv) (v) (vi)

Murabahah (cost plus)

Tawliyah (novation) Wadhiah Salam Istisnaa (sale by order) Bai Muajjal (deferred payment sale)

(vii) Istijrar (supply or whole sale financing)

(viii) Inah
(ix) Ijarah (leasing) and Ijara wa al Iqtina
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Contracts of Participation
Contracts of participation (equity financing/ profit sharing) are: (i) Musharakah (joint venture profit sharing)

(ii) Mudharabah (trustee profit sharing)

(iii) Muzaraah (leasing of land for agriculture)

(iv) Musaqat (watering of orchard)

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Supporting Contracts
The Shariah also permits contracts to support and facilitate trading and mobilisation of capital. These contracts are: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) Rahn (mortgage) Kafalah (guarantee) Wakalah (agency) Wadiah (safe custody) Qardh Hasan (benevolent loan) Hawalah (transfer of debt) Tabarruu (donation) Hibah (gift) Waqf (endowment) Ibraa (rebate) Muqasah (set-off)
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Banking Contracts
In Islamic banking the following contracts may be applied in mobilisation of deposits: (i) Musharakah for shareholders fund (ii) Mudharabah for customers investments (iii) Wadiah for safe custody and (iv) Qardh Hasan For uses of funds all the contracts of debt financing and equity financing may be applied.

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Different Features of Contracts

The different features of Murabahah, Istisnaa, Bai Bithaman Ajil and Ijarah.

Murabahah Definition:

A sale based on the cost price plus profit. The cost price or profit must be known to the buyer. Normal practice price paid in a lump sum. Istisnaa Definition: An order made by the buyer for the manufacture of a merchandise according to specifications. The merchandise 52

Different Features of Contracts, cont.

Bai Muajjal Definition: selling price date. at the time of contract. A sale with the payment of the deferred to an agreed later The merchandise exists

The Shariah does not require that the cost price be known to the buyer. Ijarah Definition: A sale of the use of anothers property.

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Ownership of Assets
The purpose of contracts is to obtain ownership of asset or the ownership of benefits of the assets. Where there are two contracts, one immediately following the other proper sequence in their executions must be followed.

This sequence applies- in refinancing (Bai Inah) - in Ijarah facility where the asset must be purchased for the Ijarah or the asset must be leased for secondary lease.

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Real Sale and Purchase

In contracts of exchange there must be real buying and selling to make them valid: - there must be mal (assets) being exchange with assets. To make contracts real and valid they must have essential elements with their necessary conditions.

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1. Contract of Sale
The essential elements of a contract of sale with the necessary conditions are:

1.

Contract :Offer and Acceptance (i) Absolute and in definite and decisive language. - in the past or present tense. - not in the future or imperative tense. - not conditional - not limited to a certain period.
(ii) The acceptance must agree with the offer. (iii) The offer and acceptance must be made at the one and same meeting.

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Contract of Sale, continued

2. The Thing Sold (i) (ii) It must exist It must be capable of being delivered. free from

encumbrances.
(iii)

It must be known by address ,description or specifications. (iv) appointed It must be owned by the seller. or agent,or natural,or

guardian of the owner (wali mal).

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Contract of Sale, continued

(v) It must have some use.

(vi)
of the following substances:

It must be of pure substance.

It must not be of any

liquid

dogs and pigs every intoxicating

eaten by men.

carcasses blood, pus and vomit droppings and urine milk of animals not
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Contract of Sale, continued

3. The Price - It must be known in currency and absolute amount. The Seller (i) He must be capable of taking responsibility. - of sound mind (aqil) - has attained the age of puberty (baligh) - has attained majority (rasheed/ 18 years old)

4.

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Contract of Sale, continued

(ii) He must not be prohibited from dealing with his property. not bankrupt not prodigal

(iii) There is no coercion exerted him. 5. The Buyer (The necessary conditions are the same as those for the seller.)

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2. Contract of Leasing
The essential elements with the necessary conditions are: 1. Contract: Offer and Acceptance (i) In definite and decisive language. - in the past or present tense - not in the future or imperative tense. (ii) The acceptance must agree with offer

(iii) The offer and acceptance must be made at the one and same meeting.

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Contract of Leasing, continued

2. The Asset (i) It must be owned by the lessor. - or agent , or natural , or appointed guardian of the owner(wali mal). (ii) It must be specified and known - by address description or specifications. (iii) It must be delivered to lessee - in good working condition.

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Contract of Leasing, continued

3. The Benefit (use or usufruct) (i) It can be fixed in value (ii) The lessor has the power and capacity to use and lease the asset (iii) It must be permissible (iv) It must be known - the purpose for which the asset is used must be known - the period of leasing must be known. (v) It must not be any material part of the asset.

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Contract of Leasing, continued

4. The Rental - It must be known in currency and absolute amount 5. The Lessor (The necessary conditions are the same as those for

buyer and seller.)

6. The Lessee (The necessary conditions are the same as those for buyer and seller)

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3. Bai Inah
Bai Inah must meet the following requirements:
1. There must be two separate contracts properly executed. 1st the contract of sale by bank to customer on deferred payment terms. 2nd the contract of repurchase by bank from customer on cash terms.
2. The merchandise or the asset must not be a ribawi material in the medium of exchange category (gold, silver or currency) because all payments for purchases are made in money. 3. Each of the two contracts must have the essential elements and each of the essential element must meet the necessary conditions.
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4. Bai Dayn
The requirements of Shariah concerning Bai Dayn are:
1. A debt must have been created through a contract of deferred payment sale of goods or service.

2. The goods must have been delivered or the service must have been rendered.
3. The trading of the debt must be on cash terms.

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Musharakah &Mudharabah
Musharakah is a general partnership whereby two or more parties into a contract to exploit their labour and capital jointly and to share the profits and losses of the partnership.

Mudharabah is a contract where the owner of capital entrusts his funds to an entrepreneur who contributes skills in a business and the profits generated is to be shared between them.

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Essential Elements of Musharakah & Mudharabah

Musharakah Mudharabah - partners of capital - capital entrepreneur - business - capital - profit sharing and business - contract - profit sharing and

- owners

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5. Musharakah
The essential elements and the necessary conditions are: 1. Partners - capable of appointing agents &being appointed as agents. 2. Capital (i) asset valued in money (ii) not debt (iii) specific amount (iv) paid into capital fund

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Musharakah, continued
3. Business (i) Halal

(ii) All partners have right to manage

4. Profit sharing (i) According to proportion of shares or according to

agreement in fraction ,ratio or percentage; not in

absolute amount. (ii) Loss borne according to proportion of shares.

5. Contract - Absolute and in definite and decisive language.

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6. Mudharabah
The essential elements are necessary conditions are: 1. Contract - Absolute and in definite and decisive language. 2. Owner of capital - Capable of appointing agents and being appointed as agent. 3. Entrepreneur - Capable of appointing agents and being appointed as agent.

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Mudharabah, continued
4. Capital (i) In money only (ii) Not debt (iii) Specific amount (iv) Paid to entrepreneur (v) From owner of capital only Business (i) Halal (ii) Managed by entrepreneur only. Profit sharing (i) Profit shared according to agreement in fraction, ratio or percentage ,not in absolute amount. (ii) Loss borne by owner of capital only.
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5.

6.

7. Security
The Shariah allows the owner of debt to ask for security for his debt from debtor. Securities are the form of: (i) Rahnu (mortgage in the form asset), and (ii) Kafalah (guarantee being a person).

in

Among characteristics of Rahnu are: Sale of mortgaged property is invalid Mortgaged property can be sold by court order to pay for the debt for which it is mortgaged. The balance if any, after payment of debt is to be returned to mortgagor.

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8. Wadiah
There are two forms of Wadiah: (i) Wadiah Yad Amanah (Trustee Safe Custody) (ii) Wadiah Yad Dhamanah (Guaranteed Safe Custody) Originally Wadiah is of Yad Amanah where the custodian has the duty to protect the property by: (i) Not mixing or pooling the properties (money) under his custody. (ii) Not using the properties. (iii) Not charging any fees for safe custody. If he failed in any of the above Wadiah changes to Yad Dhamanah where: he has to return (replace) the properties to the owners if they were lost or destroyed.
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9. Qardh Hasan
In giving Qardh Hasan the two following matters must be observed:
1. The lender must not impose any extra payment in the contract. 2. The borrower must not promise in the contract to pay anything extra.

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10. Ibraa
Ibraa is where a creditor lets go of his right to a debt. Normally it is given for early settlement of debt. Two of the most important characteristics of Ibraa are: (i) The amount of Ibraa must be known and specified, and (ii) When the Ibraa is given and accepted it is forbidden and invalid for the party who gives to withdraw it.

Thank you Wassalamu alaikum

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Appendix
Islamic Banking and Financing Products Based on Concepts and Contracts DEPOSITS
1. Wadiah: - Current Account - Wadiah Savings Account - Ijraa Savings Account - Wadi Savings Account - Mudharabah Savings Account - Pewani Savings Account - General Investment Account - Special Investment Account - Sakinah Investment Account - Negotiable Islamic Debt Certificate
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2. Mudharabah

3. Bai Dayn

Appendix
Islamic Banking and Financing Products Based on Concepts and Contracts RETAIL FINANCING
1. Bai Bithaman Ajil Baiti House Financing Land Financing Shop & Shophouse Financing Umrah & Ziarah Financing Tour Package Financing Naqad Overdraft Facility Vehicle Financing Golf Financing Education Financing
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Appendix
Islamic Banking and Financing Products Based on Concepts and Contracts
2. Bai Istisnaa Baiti Home Financing Shop & Shophouse Financing Machinery/Equipment Financing Scheme Shop & Shophouse Financing Personal Computer Financing Machinery/Equipment Financing Scheme Personal Financing Consumer Goods Financing Al-Rahnu Scheme

3. Ijarah

4. Bai Inah 5. Rahnu

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Appendix
Islamic Banking and Financing Products Based on Concepts and Contracts TRADE FINANCING
1. Bai Murabahah Letter of Credit Murabahah Working Capital Financing Letter of Guarantee Islamic Accepted Bill - Import Islamic Accepted Bill - Export Islamic Export Credit Refinancing Scheme

2. Kafalah 3. Bai Dayn

OTHER SERVICES
1. Hiwalah 2. Bai Naqdi - Remittances - Sale/Purchase of Foreign Currency - Sale/Purchase of Travellers Cheques
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