FIQH MUAMALAT

THE THEORY OF LEGAL CAPACITY (ALAHLIYAH)

INTRODUCTION
DEFINITION OF AHLIYYAH
Literally - capacity or competence.
Technically - defined by Muslim
jurists as The eligibility of a person
to establish right for and obligation
upon himself.

 A person may not have the requisite legal

capacity to conclude transactions but he may still
receive rights and obligations.
A child or a lunatic person, for instance, cannot
conclude contracts but are entitled to receive
their share of inheritance and are obliged to pay
for the necessities bought for them through their
guardians.
Muslim jurists have therefore recognized two
types of capacities:
Ahliyyah al-wujub or Receptive (passive)capacity
Ahliyyah al-adaor Active Capacity

AHLIYYAH AL-WUJUB
Ahliyyah al-wujub: it refers to the capacity of a person to
receive rights and obligations.
It is possessed by all living human beings (Humanity or life)
Active (legal) Capacity (Ahliyyah al-ada)
It refers to: The ability of a person to manage his wealth
and exercise his rights and undertake obligations in a
manner recognized by the Shariah.
the principal elements for the capacity of performance
(ahliyyah al-ada) 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.

Ahliyyah al-Wujub al-Kamilah

Ahliyyah al-Wujub al-Kamilah, or complete capacity for
acquisition, is found in a human being after his birth and before
the age of puberty.
This makes one eligible for the acquisition of all kinds of rights
and obligations.
In other words, a child possess complete capacity for acquisition
of rights and obligation but until a child attains the age of legal
puberty, he lacks the capacity for execution.
Though he cannot meet them personally due to the absence of
the capacity for execution, the lawgiver allows his guardian
(Wali) to stand in his place and represent him.
The child is also liable for any damage caused to others
property.

 The example of this is Children:

They receive rights and obligations as the
guardians are acting on their behalf. They can
enter into the contracts of sale, or gift through
their guardians.
They are also under obligations to pay zakat,
zakat fitr or to pay for the damage which they
inflicted on others properties.
A child who has obtained a complete capacity
to receive rights and obligation still cannot
undertake
contractual
obligations
except
through his guardian. And if he does the aqd is
void.
He is not also obliged to pray , fast or go to haj.

Ahliyyah al-Wujub al-Naqisah

It is established for a fetus (Janin). Deficient capacity
implies that only some rights are established for the
fetus and no obligations are imposed on it. The
reason is that fetus is considered part of the mother
in some respect.
By virtue of this deficient capacity, the fetus acquires
certain rights; freedom from slavery, inheritance,
bequest and parentage. On the other hand, the fetus
cannot be held liable for the satisfaction of rights
owed to others. Thus, obligations and duties are not
established against fetus, because there is no
question of its performance.

 Fetus is part of the mother as it does not

have an independent personality.
Fetus: is entitled to certain essential,
beneficial rights: There are 4 rights granted:
A fetus has the right to be attributed to his
parents.
He is also entitled to receive his share of
inheritance .
He is also entitled to receive his share in a will
(wasiyyah) .
He is also entitled to receive his share in waqf.

But a fetus is entitled to these rights only

when it is born alive.

Ahliyyah Al-Ada Al-Kamilah

Complete capacity is established for a human being when he/she
attains full mental development and acquires the ability to judge.
This state is associated with the external standard of puberty.
The physical signs indicating the attainment of puberty are the
commencement of wet-dreams in a male, and menstruation in a
female.
In the absence of this sign, puberty is presumed at the age of
fifteen in both male and female according to Abu Hanifah.

In addition to puberty, the possession of Rushd (discretion,

maturity of action) is stipulated as well. The Quranic sanction, to
this effect, is as follows:

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 Matuh 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;
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.

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.

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 almumaiyz 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.

Obstacles to Capacity:
There are some factors that may
prevent a person from dealing with his
own property.
These factors disqualify a person from
concluding a contract, it could be
beyond his power, or within his power.
Obstacles to capacity refer to a
situation where a person is restrained
from dealing with his property.

Minority (Sighar)
It is the stage of a human being after the birth
and before the age of puberty. A minor follows his
parents or one of them in the matters of Islam.
Islamic jurists maintain that a minor is liable for
compensation for property destroyed by him, for
goods and services bought, for maintenance of
relatives and also for zakat according to some.
Hanafi School of Thought makes an exception in
the case of a Sabi Mumayyiz and it is a matter of
controversy whether the Khitab of Targhih or
recommendations is addressed to him. He is not
liable for punishments, but financial transactions
undertaken by him are valid in certain cases.

Insanity (Junun)
Junun has no effect on Ahliyyah al Wujub, because
rights and obligation are established for and against
an insane person, who is deemed liable for Itlaf
(destruction of property), payment of Diyyah and
the like.
The rationale (Manat) for attribution of such
capacity is humanity (Insaniyyah) and the insane is
a human being.
Insanity, however, completely negates the Ahliyyah
al-Ada because of lack of reason and intellect. An
insane person, therefore, has no liability for worship,
or punishment, and all his transactions are void.

Idiocy (Atah)
It is a condition in which a person at times speaks like a sane and
normal person while at others he is like a mad man. It is also described
as a state in which a grown-up has the mind of a child. The capacity of
an idiot is deemed equivalent to that of a Sabi Mumayyiz who can be
permitted by his guardian to undertake some transactions.
Where a person is inconsistent in his decisions and behaviours, which
may change from time to time.
His status is the status of a child who could distinguish between good
and bad.
He may perform contracts, which are in his interest, without seeking
permission from his guardian.
He could not enter into contracts that are harmful. He may enter into
contracts that fall between these two extremes with the permission of
his guardian.

Forgetfulness
A person is not very careful about things
though he has full knowledge of them, as
distinguished from sleep and fainting fits in
which such knowledge is lacking. Forgetfulness
does not affect Ahliyyah al-Wujub nor does it
affect the capacity for execution.
The legal communication (Khitab), however,
becomes operative as soon as the person
remembers. Transactions undertaken by such a
person are valid and enforceable against him.

Safah (Folly)
Safah refers to a situation where a persons financial decisions or
activities run contrary to the guidelines of Shariah and reason.
A safeh is a person who is wasting or spending his wealth
improperly. The opposite of safah is rushd which refers to the
maturity of mind. Rushd is a person who has the ability to
manage his wealth properly and is not involved in extravagance.
Only a court has the power to ascertain that a certain person is a
safeh , and once a person is declared a safeh by a court the judge
would become his guardian. The father or grandfather of a
spendthrift person has no right of guardianship over him.
Any commercial transaction made by a safeh could not be
executed unless the judge is satisfied that the transaction is in his
favour and approves it.

THERE ARE TWO TYPES OF SAFAH;

Those who have become adult but are still safeh. He is not
allowed to interfere with his property. He would be under
the supervision of a guardian.

According to Imam Abu Hanifah, after a safeh reaches the age of

25 years his property should be returned to him.
Reason: because when a person reaches this age he would attain
maturity of mind.
According to The majority of the Fiqh Schools the prevention may
continue until such an age at which a person may attain maturity
of mind.

Those who after attaining maturity of mind becomes safeh.

Imam Abu Hanifa :no prevention could be imposed on

such
persons.
The majority of the Fiqh Schools and Abu Hanifahs own disciples
Imam Abu Yusuf and Imam Muhammad Al-Shaibani: he may still be
declared sefih even if he has attained maturity of mind; if it is
proven that he misappropriates his property or spends it in ways
that are unlawful or improper.

Death Illness (Marad al-Maut)

Maradul Maut has no effect on the capacity for acquisition
or on the capacity for execution and it is, in fact, a condition
of Taklif, because it is the capacity to perform and act that
is affected here and not the capacity to understand it.
Refers to an illness which will lead a person to strong
probability of death. This usually happens when the disease
gets worse from day to day until death ensues.
Also includes situations in which people fear death,
although they may not be sick, as when a person is
sentenced to death.
A person who suffers from Marad al-Maut may make certain
contracts: waqf , charity, or make gift of his property to
some of his heirs or non-heirs.

 Some of his dispositions may cause injustice

to his legal heirs and the creditors.
In order to protect the interests of his legal
heirs and creditors Islamic law, applying the
rule of wasiyyah, has limited his dispositions
to one-third of his wealth.
For example, a person who suffers from
mortal sickness may give a part of his wealth
as a gift to one of his heirs. After his death if
the other heirs do not agree, the gift is not
valid. A gift to a non-heir is valid and does not
need the approval of the heirs provided the
gift should not exceed one-third of the asset.

Intoxication
Intoxication
prevents
a
person
from
distinguishing what is good and bad or
beneficial and harmful.
Intoxication could either be caused voluntarily
(person choice and within his control) or
involuntarily (beyond ones control).
Voluntary intoxication could be caused by wilfully
taking intoxicants.
Involuntary intoxication, could be caused by
consuming certain medicines or taking anaesthetic
or when a person is forced to take intoxicants.

 There are two views on the validity of a contract

entered into by a person who intentionally takes
intoxicants:
The Malikis and Ibn Taymiyyah and Ibn Qayyim argue
that all contracts entered into by such a person are not
valid.

Reason: intoxication whether voluntarily or involuntarily takes

away a persons rational power to make a proper decision.

The majority of the Fiqh Schools argues that contracts

entered into by a person intoxicated involuntarily are
not valid.

But if intoxication is caused wilfully, the contracts entered

into are valid.
Reason: this could serve as a sort of punishment to a person
who voluntarily weakened his rational power.

Duress
It refers to a situation where a person is forced against
his consent to enter into a contract which if left alone,
he would not have entered into.
For example: when a person is threatened with death,
or the deprivation of his limbs, or severe beating,
which may result in his death.
This type of coercion destroys consent and invalidates
a persons choice. Duress does not destroy the
capacity of a person but destroys his consent.
Conditions:
The one who uses force is capable of implementing his threats.
The person forced is certain that the one who uses force would
implement his threat.
The nature of threat is such that it really endangers life.
The threat is immediate.
The force is used for an unlawful purpose.

To the majority the contract is void