Islamic Law of Transaction Janatul (1)

7/29/2019 Islamic Law of Transaction Janatul (1)

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QUESTION 8CAPACITYOF CONTRACTING PARTIES1. AHLIYYATUAL-WUJUB2. AHLIYYATUAL-ADA

Shahrullah Khan Nawab Zadah Khan

Nooraneda Mutalip Laidey

Janatul Naemah Mohd Rasid

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Hanafi

Majority

Ijab

Qabul

Sighah

Contracting Parties

Subject Matter

Ijab

Qabul

ELEMENTS OF AQAD


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CONTRACTING PARTIES

Contracting parties are the parties whoexercise the sighah of ijab & qabul. In order toconclude a valid contract, the contracting parties

must have legal capacity.Al-Ahliyah/legal capacity has been defined byMuslim jurists as the eligibility of a person toestablish right for and obligation upon himself.

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Al-Ahliyah

Ahliyyat al-wujub(the eligibility of aperson to acquire

rights for and upon

him)

Ahliyyat al-ada(the eligibility of a

person to execute ordischarge his right

and duties in amanner recognizedby law


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AHLIYYATUAL-WUJUB

Def : the eligibility of a person to acquire rights forand upon him (Fiqh): the capacity of obligation i.e. to acquire rights

and duties (literal)

Factors that embodied elements of Ahliyyatu al-Wujub on human being is the life of humanity itself.So there is no correlation with age or sense ofmaturity.

This right existed since the formation of the fetus inwomb until a mans death.

Every human being, including the fetus in hismothers womb or a lunatic, has this kind of right.

Divided into two parts Complete ( Naqisah)

Incomplete (Kamilah)

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Ahliyyatu al-Wujub

NaqisahIncomplete

KamilahComplete


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1.INCOMPLETE (FETUSIN WOMBS)

This right is incomplete because a person gains the right butin the meantime he is incompetent to bear the liability.

These right is not complete which is still owned by the fetus inthe mother's belly, it means not yet born.

This right is incomplete right for two reasons, namely:

First, the fetus may be alive but there is a possibility he willborn in a state of death. Therefore his status does not existand he did not get any right.

But from another aspect there is a possibility he will be bornalive. Therefore he has a right as a human being.

The existence of these two possibilities, born alive or dead,

making the position of the fetus does not earn rights. Howeverconsidering that the fetus actually exist in the mother's womb,he has the right to rights, even though his life as humansgenerally have not materialized.

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Second, the fetus is still in his mother's womb so is stillconsidered part of the mother. He moved with his

mother's gestures. Nevertheless, when it is ready, thefetus is ready to be separated from her mother to havethe perfect life.

Given the position of the fetus as part of his mother andseparated 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 thefather;

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, fetus does not acquire automatic right

to ii, iii, and iv but the right would depend on hisexistence as human being (born). If he is bornalive, he will acquire the right but if he is borndeath, his rights must be given back to theentitled person.

Fetus is entitled to waqaf. (Hanafi & Maliki)

Fetus not entitled to waqaf but entitled toinheritance and bequest. ( Syafii &Hambali)

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2. COMPLETE (INFANT)

Complete capacity to acquire certain rights and responsibility.However he not yet have rights in contract. Therefore theinfant acquire this rights resulting from any transactions heldby the guardian or trustee acting on his behalf.

Hanafi- this right is established when the fetus is born alive Majority this right is not established except when the fetus is

born alive and is sempurna

He is subjected to all responsibilities affecting his property,e.g. to pay for the price of the property bought for him, or toown 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, asmall child have equal responsibility with theadult. As for the implement is a guardian orholder of a will for him on his behalf.

However, when he entered into a contract orperform a legal action, whether favorable to

himself e.g. receiving a grant or a will, orthat do not benefit him e.g. he donatedsome of his property to someone else, thenthe contract is VOID because he does notyet have the capacity to enter into a contract

(aqad).

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AHLIYYATUAL-ADA

Age 7 to puberty (Incomplete);

-In general he has a complete capacity as at personto attain rights and responsibility and to enter intocontract in certain types of contract.

-Hanafi are of the opinion that his contract is of 3types:

(i) Beneficial aqd eg: to received gift : Valid

(ii) Aqd that causes loss : Void

(iii) Aqd that may cause either benefit orloss eg: contract of sale : contingent uponapproval of guardian

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- While according to Shafii and Ahmad his contract isnull and void, except where such act are purely to

the advantage of a minor of perfect understandingbut must be ratified by the guardian.

- A minor of imperfect understanding may not make

any valid disposition of his property even with hisguardians consent or ratification.

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AHLIYYATUAL-ADA

Age of Puberty or Baligh/ Age of Majority (Complete);

-In general when a person has reached puberty or balighhe/she has reached the age of majority.

-Where he/she has complete capacity to acquire rights &responsibilities. He can enter to any aqd without theneed to get anyones approval.

-Baligh is reached when for a boy, he has a wet dream/emission of seminal fluid. While for a girl when she hasher first period.

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- Majority jurist specify that having reached puberty on thebasis of a Quranin verse (IV:5)

- Make a trial of the orphans until they reached

marriageable age. If you are then accustomed to theiracting with prudence, hand over their property tothem

- Age of majority is linked to a manifestation of prudence(Rushd) but certain limited capacities may be granted topersons manifesting discernment discretion (Tamyiz).

For example whether a person is able to distinguish thedifferences between sale and a purchase.

- Majority jurist agree that prudence and puberty occurredaround the age of 15 years old. However in many event,

the minimum age of puberty was at the age of 9 yearsold 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 yearsold

-Majority jurist : fixed at 15 years old, rationalebased on report from Ibn. Umar, a compinion of theProphet. 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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IMPEDIMENTTOLEGALCAPACITY

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 protectivesafekeeping of his property and sound organization of hisbusiness

There are some factors that may impede someones legalcapacity. It can be categorized to 2 ;

(i) Involuntary Impediments or known asAwaridh Samawiyyah that is the factors

beyond ones control. The factors exists withoutaffected persons choice.

(ii) Voluntary Impediments or also known asAwaridh Muktasabah that is the factors withinones control.

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Example of Awaridh Samawiyyah (Involuntary

Impedements);

1. A lunatic person (Matuh or Majnun)

-Is considered lacking in discernment (Tamyiz) andtherefore any act entered into by them is null andvoid.

-A Majnun who is characterized by abnormal andirrational behaviour is interdicted from entering intoany valid contract.

- A Matuh (partially or temporarily insane) isrecognized as having lucid periods during which heis 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 indiscernment (Tamyiz) and therefore any act enteredinto by them is null and void.

3. Sleeping

- Sleeping person also is considered lacking indiscernment (Tamyiz) and therefore any act enteredinto or declaration made by them is null and void.

4. Ill with Death Sickness-Al-Majella defines as a sickness where in themajority of cases death is imminent, and in the case

of male, where such person is unable to deal with

his affairs outside his home,19


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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 hasbeen confined to bed ornot

- Dispositions during death sickness are interdicted

in the interest of the persons heirs or creditors.

- Under the Islamic law of succession at death theentitled legal family heirs have an entrenched right,

under the compulsory rules of inheritance 2/3 of thedeceaseds estate.

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- Personal discretion to dispose of the property atdeath by way of will or bequest, in order to protectthe heirs rights of inheritance, subject to 2 mainrestrictions;

- (a) A bequest in excess of 1/3 of the net estate,or a bequest in favour of any legal heir, isultra vires and ineffective unless ratified bythe legal heirs.

- (b) A gift made by a dying person is not ipsofactonull and void; it is said to be suspended(mawqul) upon the consent or otherwise ofthe party whose interest the interdiction isimposed.

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Example of Awaridh Muktasabah (Voluntary

Impedements);

1. Prodigals (safih)

- Coulson in his books defined Prodigals as onewho 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 protectthem 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 Fiqhs consequent analogous prohibition of alcohol.

- Hanafis distinguish between accidental and voluntarydrunkenness, giving legal effect to acts entered into . If itis voluntary drunkenness due to his own desire, the

contract is valid. If it is accidental the contract may besuspended.

-Malikis regards acts or declarations pronounced in a

state of drunkenness as non-obligatory subject to laterratification.

- Shafiis and Hanbalis consider them null and void,

subject to later ratification.

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Conclusion.

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Islamic Law of Transaction Janatul (1)