The Concept of

Contract in Islamic
Law
Oleh:
Dr. Gemala Dewi, SH.,LL.M
 Introduction
Trade or business is a highly respected in the
teachings of Islam
Prophet Muhammad is very appreciative of the

merchants, even he himself was an activist

foreign trade is highly reliable and pupolis
Disclosure of trading in the Quran found in three

forms, namely tijarah, bay and Syira'. Tijarah

word is called 8 times in the Qur'an are scattered
in seven letters, which surah Albaqarah: 16 and
282, An-Nisa: 29, at-Tawbah: 24, An-Nur: 37,
Fathir: 29, Shaf: 10 and Al-Gomaa: 11
The Ethics on Trade /Transaction
From Mu'az bin Jabal that the Messenger of
Allah said, "Indeed the best of both
businesses are businesses that trade if they
speak no lie, if it promised not to violate, if
not treasonous believed, if the purchase
does not blame the product, if it sells no
praise merchandise, if it does not slow down
the payment owed, if it has not complicate
receivables ". (HRBaihaqi and released by
As-Ashbahani)
Definition of Contract
(akad)
Contract (akad) is the relationship between an
authorized (ijab) and granted consent
9qabul)by the syariah law giving rise due to the
object. (Jumhur Ulama)
The most important element in the contract:

a. Ijab (Pledge), that such linkages and granted

consent. Consent is a statement from
someone (the first party) to offer something.
b. Qabul is a statement from someone (the
second party) to receive / grant offer from the
first party.
Understanding Contract in Law
Contract (Aqad) is: a written agreement
between the Islamic Bank or UUS and
others that contain the rights and
obligations of each party in accordance with
Sharia principles (Article 1 point.13 of Law
No. 21/2008 on Islamic Banking).
Contract is an agreement between two or

more parties to do or not do and certain

legal acts (Article 20 KHES).
Pillars of Contract
1. Al Aqidain (the subject of
contract)
2. Mahallul Aqad (the object of
contract)
3. Maudhuul Aqad (the purpose of
contract)
4. Sighatul Aqad (ijab and kabul)
Al Aqidain (the subject of contract)

It is the parties who perform the contract as

a legal act which assumed rights and
obligations.

The form of the subject of contract:

1. Human (syakhsiyah thobiiyah)
2. Corporation (Syirkah) (syakhsiyah
Itibariyah hukumiyah)
Human
Human as a subject of law is a human that
is already subjugated by law, called
mukallaf.
(has full legal capacity).
Mukallaf are the ones that have been
deemed capable of acting in law, both of
which are associated with the commands
of Allah and with the prohibitions and be
accountable to God.
Subject Terms Law
1. Aqil Baligh; which means it has reached
the physical changes and common sense
(mature).
2. Tamyiz (can distinguish); which means it
can distinguish between good and bad.
3. Mukhtar (free of coercion); Principles
should be reflected in the contract that it
was consensual antharadin free from
coercion and pressure.
3 important things in the
subject contract
1. Ahliyah (proficiency):
. Ahliyah wujub (proficiency in the right)
. Ahliyah ada (proficiency in performing

responsibilities).
2. Wilayah (authority)
. Niyabah Ashliyah (doing him/her self)
. Niyabah al-Syariyyah (through guardians).

3. Wakalah (representation)
Stages in the legal capacity of a
person
Abdurrahman Raden Aji Haqqi, in the book of
The Philosophy of Islamic Law of Transactions,
mentioned four (4) phases of a person in a legal
capacity (Stages of Legal Capacity:
Marhalah al-Janin (embryo stage),
Marhalah al-Saba (stage / future embryo), from
human birth to age 7 years
Marhalah al-Tamyiz (phase / time to distinguish
between the good with the bad, between the
ages of 7 to 15 or 18 years),
Marhalah al-Bulugh (stage / puberty)
Stages in the legal capacity of a
person
Wahbah Az-Zuhaily, adds with one stage
further that is called as Daur ar-Rushd,
the wise stage (stage of prudence). This
stage is the stage of the most perfect in the
law for a person to act.
Corporation
Corporation is the party of law that is acting
in a law and the rights, obligations, and
legal relationship to other persons or other
party.
An alliance (Syirkah) which was formed by

the right and has the responsibility of

property separate from its founder.
Legal Basis:
Q.s. an-Nisa (4):12, Qs.Shaad (38):24,
Hadits Qudsi narated by Abu Dawud & Al
Hakim from Abu Hurairah
Legal Entities as Legal Subjects
1. Having different rights than human rights,
in which have family right, the right for
inheritance, the Legal Entity does not have
those rights.
2. Not disappear with the death of the
management corporation.
3. There is a need for legal recognition.
4. It has a limited scope.
5. It has a fixed legal action, did not develop.
6. No offense punishable.
Mahallul Aqad (the object of contract)

The form of the object that is subject to the

law of contract can be tangible and
intangible items or services.
Terms of the contract Objects are:

1. existing when the contract was held.

2. justified by the Sharia Law.
3. should be clear and recognizable.
4. can be handed over.
Maudhuul Aqad (the purpose of contract)

The purpose of the contract can not be

contrary to the Shari'a.
requirements that must be met in order for

a contract goal (maudhu'ul aqdi / ghoyatul

aqdi) is considered valid:
1. is not an obligation that has been there.
2. lasts until the end of the contract.
3. Shari'a must be justified.
Sighatul Aqad (ijab and kabul)

Sighatul 'aqad is an expression of the

parties to a contract in the form of consent
and granted.
Ijab is a statement of promise or offer of the

first party to do or not to do something.

Kabul is receiving a statement or promise or

offer of the first.

Terms in Ijab and Kabul
1. Jala'ul ma'na, such as the objectives
contained in the statement is obvious, so
we can understand the type of contract
required.
2. Tawafuq, namely the correspondence
between consent and kabul.
3. Jazmul iradataini and granted consent, ie
between the needs of the show for sure, do
not hesitate and do not have to.
Forms of Ijab and Kabul
1. Orally ijab and kabul clearly expressed
by words.
2. In writing ijab and kabul expressed in
writing as a letter of agreement within.
3. With cues ijab and kabul expressed with
a specific code, provided that the parties
have the same understanding as the people
with disabilities who use sign language.
4. By action ijab and kabul through an act
indicating agreement.
Consequences of Contract
Create the rights and obligations between
the parties (subject of law).
There is a Khiyar, namely suffrage (the

right of choice) for performing the contract

or cancel the contract to perform the
agreed.
Consumer Protection in
Khiyar
It is very important role in Islam to protect the public from the
effects of the influence of damaged goods sale:
The buyer has the right to inspect the goods before the
agreement and advise or confirm whether the items to be
purchased are free from damage.
Upon delivery of the goods by the seller, if consumers find
damage to the goods that already exist at the time owned by
the seller, the consumer has the right to reject or accept a price.
If the seller makes a determination of exception and does not
consider itself responsible for the damage to the goods, while
the damage was known or intentionally concealed by him,
setting disclaimer has no effect and therefore, the consumer is
not bound by the determination of the release and have the
option to refuse or receiving the goods
 Imam Malik RA said: "... Any person who
sells ... without the agreement of
accountability, then he is not responsible for
any existing damage to the goods he has to
sell, unless he knows and hide the damage.
If he was aware of the mistake and cover it,
the determination that he is free from
responsibility, cannot release him ... "
Thank You