Transcript Elements of Aqad - LAW 737 Islamic Law of Transaction

QUESTION 8
CAPACITY OF CONTRACTING
PARTIES
1. AHLIYYATU AL-WUJUB
2. AHLIYYATU AL-ADA’
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Shahrullah Khan Nawab Zadah Khan
Nooraneda Mutalip Laidey
Janatul Naemah Mohd Rasid
ELEMENTS OF AQAD
Ijab
Hanafi
Qabul
Ijab
Sighah
Majority
Qabul
Contracting Parties
Subject Matter
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CONTRACTING PARTIES
Contracting
parties are the parties who
exercise the sighah of ijab & qabul. In order to
conclude a valid contract, the contracting
parties must have legal capacity.
Al-Ahliyah/legal capacity has been defined by
Muslim jurists as the “eligibility of a person to
establish right for and obligation upon
himself”.
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Al-Ahliyah
Ahliyyat al-wujub
Ahliyyat al-ada’
(the eligibility of a
person to acquire
rights for and
upon him)
(the eligibility of a
person to execute or
discharge his right
and duties in a
manner recognized
by law
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AHLIYYATU AL-WUJUB





Def : the eligibility of a person to acquire rights
for and upon him (Fiqh)
: the capacity of obligation i.e. to acquire
rights and duties (literal)
Factors that embodied elements of Ahliyyatu alWujub on human being is the life of humanity
itself. So there is no correlation with age or sense
of maturity.
This right existed since the formation of the fetus
in womb until a man’s death.
Every human being, including the fetus in his
mother’s womb or a lunatic, has this kind of
right.
Divided into two parts

Complete ( Naqisah)

Incomplete (Kamilah)
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Ahliyyatu al-Wujub
Naqisah
Incomplete
Kamilah
Complete
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1.INCOMPLETE (FOETUS IN WOMBS)





This right is incomplete because a person gains the right
but in the meantime he is incompetent to bear the liability.
These right is not complete which is still owned by the
fetus in the mother's belly, it means not yet born.
This right is incomplete right for two reasons, namely:
First, the foetus may be alive but there is a possibility he
will born in a state of death. Therefore his status does not
exist and he did not get any right.
But from another aspect there is a possibility he will be
born alive. Therefore he has a right as a human being.
The existence of these two possibilities, born alive or dead,
making the position of the foetus does not earn rights.
However considering that the fetus actually exist in the
mother's womb, he has the right to rights, even though his
life as humans generally have not materialized.
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Second, the foetus is still in his mother's womb so is
still considered part of the mother. He moved with his
mother's gestures. Nevertheless, when it is ready, the
foetus is ready to be separated from her mother to
have the perfect life.
 Given the position of the foetus as part of his mother
and separated from his mother's readiness to live
alone, he does acquire rights that does not require
Qabul
 There are 4 rights granted:
i. Establishment of blood relation to the
father;
ii. Right of Inheritance;
iii.Right to receive bequest;
iv.Right to benefit from the waqaf property
made for his interest

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 However,
foetus does not acquire automatic
right to ii, iii, and iv but the right would
depend on his existence as human being
(born). If he is born alive, he will acquire the
right but if he is born dead, his rights must be
given back to the entitled person.
 Foetus is entitled to waqaf. (Hanafi & Maliki)
 Foetus not entitled to waqaf but entitled to
inheritance and bequest. ( Syafii &Hambali)
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2. COMPLETE (INFANT)

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Complete capacity to acquire certain rights and
responsibility. However he not yet have rights in contract.
Therefore the infant acquire this rights resulting from any
transactions held by the guardian or trustee acting on his
behalf.
Hanafi- this right is established when the foetus is born
alive
Majority – this right is not established except when the
fetus is born alive and live.
He is subjected to all responsibilities affecting his property,
e.g. to pay for the price of the property bought for him, or to
own whatever things given to him as gift.
He shall discharge such property tax liability
He is obliged to pay zakat (majority except Hanafi)
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 In
matters relating to property issues, a
small child have equal responsibility with
the adult. As for the implement is a
guardian or holder of a will for him on his
behalf.
 However, when he entered into a contract
or perform a legal action, whether
favorable to himself e.g. receiving a grant
or a will, or that do not benefit him e.g. he
donated some of his property to someone
else, then the contract is VOID because
he does not yet have the capacity to enter
into a contract (aqad).
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AHLIYYATU AL-ADA’

Age 7 to puberty (Incomplete);
-In general he has a complete capacity as at
person to attain rights and responsibility and to
enter into contract in certain types of contract.
-Hanafi are of the opinion that his contract is of 3
types:
(i) Beneficial ‘aqd eg: to received gift : Valid
(ii) ‘Aqd that causes loss : Void
(iii) ‘Aqd that may cause either benefit or
loss eg: contract of sale : contingent upon
approval of guardian
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-
While according to Shafii and Ahmad his contract
is null and void, except where such act are
purely to the advantage of a minor of perfect
understanding but must be ratified by the
guardian.
-
A minor of imperfect understanding may not
make any valid disposition of his property even
with his guardian’s consent or ratification.
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AHLIYYATU AL-ADA’

Age of Puberty or Baligh/ Age of Majority (Complete);
-In general when a person has reached puberty or
baligh he/she has reached the age of majority.
-Where he/she has complete capacity to acquire rights
& responsibilities. He can enter to any ‘aqd without
the need to get anyone’s approval.
-Baligh is reached when for a boy, he has a wet dream
/emission of seminal fluid. While for a girl when she
has her first period.
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-
Majority jurist specify that having reached puberty on
the basis of a Quranic verse (IV:5)
“Make a trial of the orphans until they reached
marriageable age. If you are then accustomed to their
acting with prudence, hand over their property to
them”
-
Age of majority is linked to a manifestation of
prudence (Rushd) but certain limited capacities may
be granted to persons manifesting discernment
discretion (Tamyiz). For example whether a person is
able to distinguish the differences between sale and a
purchase.
-
Majority jurist agree that prudence and puberty
occurred around the age of 15 years old. However in
many event, the minimum age of puberty was at the
age of 9 years old for a girls and at the age of 12 years
old for boys.
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
Age of Majority;
-Abu Hanifah : fixed the age of majority at 17
years old
-Majority jurist : fixed at 15 years old, rationale
based on report from Ibn. Umar, a companion of
the Prophet. Ibn Umar reported:
“I offered my services to the prophet when I was
14 years old but he refused me permission to
engage in the battle. I next presented myself to
him when I was 15 and he allowed me to join the
ranks” (al-mughni)
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IMPEDIMENT TO LEGAL CAPACITY



One of the condition of a valid contract he/she must be of a
sound mind or prudence (Rushd).
Ibn Qudama defines prudence in a person as the “protective
safekeeping of his property and sound organization of his
business”
There are some factors that may impede someone’s legal
capacity. It can be categorized to 2 ;
(i)
Involuntary Impediments or known as
‘Awaridh Samawiyyah’ that is the factors
beyond one’s control. The factors exists without
affected person’s choice.
(ii)
Voluntary Impediments or also known as
‘Awaridh Muktasabah’ that is the factors within
one’s control.
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
Example of ‘Awaridh Samawiyyah (Involuntary
Impediments);
1. A lunatic person (Ma’tuh or Majnun)
-Is considered lacking in discernment (Tamyiz)
and therefore any act entered into by them is null
and void.
-A Majnun who is characterized by abnormal and
irrational behaviour is interdicted from entering
into any valid contract.
- A Ma’tuh (partially or temporarily insane) is
recognized as having lucid periods during which
he is allowed to enter into certain valid
transaction on a par with the discerning minor.
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2. Imbecility (‘atah)
- Imbecility person is considered lacking in
discernment (Tamyiz) and therefore any act
entered into by them is null and void.
3. Sleeping
- Sleeping person also is considered lacking in
discernment (Tamyiz) and therefore any act
entered into or declaration made by them is null
and void.
4. Ill with Death Sickness
-Al-Majella defines as a “sickness where in the
majority of cases death is imminent, and in the
case of male, where such person is unable to deal
with his affairs outside his home,
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and in the case of a female, where she is unable to
deal with her domestic duties, death having
occurred before the expiration of one year by
reason of such illness, whether the sick person has
been confined to bed or not”
-
Dispositions
during
death
sickness
are
interdicted in the interest of the person’s heirs or
creditors.
-
Under the Islamic law of succession at death the
entitled legal family heirs have an entrenched
right, under the compulsory rules of inheritance
2/3 of the deceased’s estate.
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Personal discretion to dispose of the property at
death by way of will or bequest, in order to
protect the heirs’ rights of inheritance, subject to
2 main restrictions;
-
(a)
-
(b) A gift made by a dying person is not ipso
facto null and void; it is said to be suspended
(“mawqul”) upon the consent or otherwise of
the party whose interest the interdiction is
imposed.
A bequest in excess of 1/3 of the net estate,
or a bequest in favour of any legal heir, is
ultra vires and ineffective unless ratified by
the legal heirs.
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
Example of ‘Awaridh Muktasabah (Voluntary
Impedements);
1. Prodigals (safih)
- Coulson in his books defined Prodigals “as one
who through simple mindedness, carelessness or
conscious design, is wasteful or extravagant in his
property dealings, squandering his goods or
money immoderately and to no good purpose from
the general standpoint of Islamic morality”.
-Such persons are subject to interdiction to
protect them from their own folly.
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2. Drunkenness
-It is a controversial issue with the Fuqaha’ due to the
Quranic prohibition of Khamr (surah al-Nisa 4:43)
and the Fiqh’s consequent analogous prohibition of
alcohol.
- Hanafis distinguish between accidental and
voluntary drunkenness, giving legal effect to acts
entered into . If it is voluntary drunkenness due to his
own desire, the contract is valid. If it is accidental the
contract may be suspended.
-Malikis regards acts or declarations pronounced in a
state of drunkenness as non-obligatory subject to
later ratification.
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- Shafiis and Hanbalis consider them null and void,
subject to later ratification.
Conclusion.
It can be conclude that in Islamic law, every
person from unborn child until death can acquire
the right but it differs according to age and this
can be seen from the concept of ahliyyatu al
wujub.
However, not everyone has the capacity to
execute the rights or deal or transact with his
rights in contracting either involve property or
not because this requires a sound judgment
(prudence) or either to protect the interest of
others as the case may be.
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