Introduction
The most important and prevalent mode of acquisition of
ownership and possession of property is transfer by the act of the persons,
having legal title to another person. Such transfer is implemented by means of
a mutual liability called contract, which has a broader significance in
Muhammadan Law than in English Law.
Meaning
(a) Derivation
The corresponding Arabic term for “Contract is ‘aqd’.”
(b) Linguistic Meaning
Literally ‘aqd’ means ‘conjunction or tie.’
(c) Legal Meaning
As a term of Islamic jurisprudence ‘aqd’ means
conjunctions of the elements of disposition, namely, proposed (Aijab) and
acceptance (qubool).
Definition
(a) Article 3 of “Al Mujallah”
The obligations and engagements of two contracting persons in
respect of particular matter. It expresses combination of offer and acceptance.
(b) Sir Abdul Rahim
A contract is “The conjunction of the elements of
disposition namely offer and acceptance.”
Contract in the Light of the Holy Quran
- “And keep the covenant, Lo! Of the covenant it will be asked”. (BANI – ISRAIL:34)
- “O ye who believe fulfill your agreements”. (Al-Maidah:1)
Contract in the Light of Hadith
Prophet ( Peace Be Upon Him) said “The Muslims will
fulfill their settled contracts”.
Essentials of Contract
Islamic Law specifies following four essentials of a valid
contract.
(i) Faa’lia (Parties)
This cause appertains to the persons making the contract. A
valid contract requires that there must be two parties involved.
(ii) Mad’dia (Proposal and Acceptance)
This appertains the essence, namely, Proposal and
acceptance. It is essential to constitute a valid contract that there must be
two parties, one parties, one party should make a proposal and the other should
accept it.
(iii) Suaria (Agreement of Minds)
This cause related to the outward manifestation, that is the
minds of parties must agree and their declaration must related to the same
matter.
Illustration
A owns two houses, one in Karachi and second in Hyderabad. B
offers him to buy one of his houses. B wants to buy the house in Karachi and
pursuance of the object he makes offer, but on the other hand. A accepts his
offer considering the house in Hyderabad as the subject matter of the contract.
The contract is not valid because their promises do not release to the same matter.
(iv) Ghyia (Legal Relationship)
This cause relates to the result aimed at, i.e, the object
of the contract must be to produce a legal result. This is regarded as the
dominant idea of a contract in Muhammadan Law that it establishes a tie of
legal relations arising from the consent of the minds of two persons to deal
with each other in respect of certain rights.
Illustration
A sells or gives an object to B. the former consents to pass
on his proprietary rights therein to the latter who consent: to take the
property with whatever obligations might be incidental thereto, such as the
liability to pay taxes if the subject matte of the transaction be land, and to
feed if the thing sold or given be an animal and in the case of sale, also to
pay the price. In the case of a gift, on the other hand, there is the moral
obligation of gratitude on the part of the done towards the donor, and
Muhammadan Law does not ignore the moral aspect of a transaction.
Formation of Contract
Generally, Muhammadan Law does not require any formality
such as English law but the following requirements have to be fulfilled to
form a valid contract.
(i) Declaration of Consent
All that is required, as we have seen, is declaration of
consent by each party. The declaration which is first made is called proposal
and the second declaration is called acceptance. The two minds must be in
agreement otherwise there is not real consent.
(ii) Same Meeting (Majlis)
The proposal and acceptance must be made at the same meeting
(Majlis), either in fact or what the law considers as such.
Illustration
A man proposes face to face to another to sell his horse to
him, if the person addressed leaves the place without signifying his acceptance
the offer comes to an end, because there is no obligation on the owner of the
horse to keep his offer open.
But, if the offer
is communicated by means of a messenger or a letter, the meeting for the
purpose of acceptance is held to be at the place and time the message reaches
the person for whom the offer was intended. If the person then signifies his
acceptance the contract is concluded.
(iii) Use of Words
The Books speak of certain words as being plain (Surech) and
certain other words as being allusive (Kinaya) in relation particular kind of
disposition. What is meant is that when a man has used plain language, there is
not need for inquiry as to what he meant, but such an inquiry becomes necessary
when he has used ambiguous language. It is not to be supposed that so far as
contracts and dispositions relating to property are concerned that the mere
utterance of certain words without the corresponding intention as understood in
Muhammadan Law, would effectuate a transfer of property or create any
obligation.
Conditions of a Contract
Following conditions are provided under Islamic Law for the
validity of a contract
(i) Legal capacity of Parties
The validity of a contract depends first of all on the legal
fitness of the person entering into it. If the persons making a contract or
disposition have not the necessary capacity, contract would be void altogether.
(ii) Fitness of Subject Mater
Another essential of a valid contract like that of any other
juristic act is the fitness of its subject matter (mahal); if the subject
matter is not fit for he purpose, the contract relating there to would be void
altogether.
Illustration
If A and B enter into a contract for the sale of a horse and
while they discuss the sale price, the horse dies, there is no consent, as the
subject of the contract itself is extinct. Similarly, a marriage within prohibitory
relationship is void ab initio.
(iii) Free Consent
Consent is the essential of contract; where there is no
consent there is no agreement and the consent should be free.
Illustration
The contract of marriage must be based on the free consent
of parties, if the consent is not free the marriage is not valid under Islamic
Law.
(iv) The consent without knowledge of the Articles
It is again necessary that a contract for an article which
does not exist or which is defective apparently or otherwise is ineffective is
void.
(v) Consideration
This is an important factor but it can explained that in
agreements where price is a deciding factor, the consideration surely passes on
to the other. As regards agreement of gift though there is no exchange of
consideration, yet the done is morally obliged to the donor.
Final Analysis
Hence for final analysis, we can say that a contract is a
biding agreement between two parties which is legally enforceable. The Rules
regarding contract under Islamic law is very strict. Under Islamic law for a
valid contract there must be present four causes in the contract viz., faa’lia
and mad’dia and suria and ghayia. The first essential of valid contract is that
parties must have reached agreement. To constituents of an agreement are Ijab
and Qabul which forms it into a promise which is enforceable by Law.
0 comments:
Post a Comment