Supplication for one whose affairs have
„O Allaah, there is no ease except in that
which You have made easy, and You make
difficulty, if You wish, easy.
comprehensiveness of Islam:
- Islam is a comprehensive “religion” that describes the
way to fulfill the purpose behind our creation (worship
none but our Creator).
-Islam is the last Divine religion and as such, must
rationally and practically be the most comprehensive and
complete religion. There is no religion as comprehensive
Islam has answers to all the various questions that
man encounters, directly or indirectly, from the first
moments of life, rather, from the moment of conception.
Islam deals with all social, economic, cultural and
ethical questions of life.
- Belief in the comprehensiveness of Islam, its validity
for every time and place, and its fulfillment of every
worldly and religious requirement is a religious
Anyone who believes otherwise, claiming that Islam
is not valid for every time and place, or that there is a
better way of life than it, is an apostate.
Such false beliefs indicate denial of the revealed texts
that assert the perfection of religion.
Such false beliefs also indicate that the person
degrades this religion and degrades the Messenger of
Allaah , who conveyed it. They definitely render the
person who follows this belief an apostate.
The meaning of Islam :
What does `Islam‟ means?
- The Arabic word „Islam‟ simply means „submission‟;
it is derived from a word “silm” meaning „peace‟.
- In a religious context Islam means “submission to
the will of God and obedience to His law”.
- Man possesses the qualities of intelligence and
choice, thus he is invited to submit to the good will of
God and obey His law, ie, become a Muslim.
The Meaning of Shari‟ah
The word Shari`ah literally means “a water way that
leads to a main stream, a drinking place”.
-Technically Means: “The divine revelation and
knowledge which is only obtained from the Qur‟an and
- Shari`ah, conceptually, refers to a set of
rules, regulations, teachings, and values governing the
lives of Muslims. individual attitude and conduct, as
well as the political, social, economic, criminal, and
The Shari`ah, therefore, is a path – set by Allah
for those who accept Him – to follow, in order to
attain success both in the worldly life and in the
Tawhid or Belief in the Unity of Allah swt
- Tawhid (Oneness and Unity of Allah) is the
foundation stone of Islamic faith (iman).
- Tawhid means: “declaring Allah to be the only God
who deserves to be worshiped in truth and
confirming all attributes with which He has qualified
Himself or that are attributed to Him by His
The Meaning and Significance of Akhlaq -Islamics
in the Arabic language: the word Akhlaq is derived from
the word "Khuluq" meaning the character and the nature.
-The definition of morals in the Shari'ah terminology:
The morals are the characteristics which Allah (SWT) has
ordered the Muslim to abide by when performing his
actions be it acts of worships, transactions and others.
- morals are part of the Islamic legislation for they are part
of Allah's commands and prohibitions
If the Muslim did not adhere to the morals as
being commands from Allah (SWT) and as being acts of
worship for which he will be rewarded in the day of
Judgment, his morals would not be considered as acts of
worship and they would not be accepted of him even if
they were not for the sake of ALLAH"
- For instance someone told the truth because telling the
truth is regarded in society as a good deed, his action
would not be considered an act of worship, but if he did
so in response to the command of Allah (SWT) and His
Messenger (SAW) who said: "Verily a man would tell the
truth and keep on doing so until Allah labels him as
truthful" , only then would his truthfulness would be an
act of worship.
The Necessity of Akhlaq in Economic Activities
The observance of Akhlaq is also essential to
a healthy economy.
- Lack of moral values may lead to
corruption, mismanagement, bribery, breach of
trust, misuse of authority, and obtaining illegal
gains which are not only immoral but also crimes.
The Prophet p.b.u.h. is reported to have said: “All
the evils can be found in a Mu´min, except
dishonesty and falsehood”.
- If there is no mutual trust among the people they
will not be able to trust and cooperate with each
Making false promises or breach of promise are
types of lies and amount to hypocrisy.
- They also damage a person‟s reputation
who will lose people‟s confidence and trust.
-In trade, business, and other financial and
economic matters an atmosphere of
confidence can be created only when the
fulfilment of promises is considered a duty.
-Al-Imam Al-Bukhari reported that the
Messenger of Allah (SAW) said: "Verily those I
love most and those who will be closest to me
are those of you who have the best morals."
And he (SAW) was asked once about the best
assets that would make a Muslim enter
Heaven, he said: "The fear of Allah and good
- A Muslim businessman and trader should not
indulge in fraud, misrepresentation and unlawful
The Prophet p.b.u.h. has stated: “It is not lawful for
a Muslim to sell such a commodity that has a
defect, except that the defect is shown to the
A Muslim employer should treat his employees with
fairness and justice and a Muslim employee should
serve with honesty and dedication.
When the prophet would enter upon a sick
person he would say:
Never mind may the sickness be purification, if
I ask Allah The supreme, The Lord of the
magnificent throne to cure you”
The Emergence of Usul al-Fiqh:
After the Prophetic period the revelation stopped and the
Muslims no longer had the Prophet to give them
guidance on the problems that they faced. Whenever
Muslims had problems they would refer to the Quran and
the Sunnah in order to find solutions to those problems.
In the search for the solutions the Muslim scholars
resorted to the interpretations of the Quran and Hadith
These interpretations most of the time involved the use
of reason. It was, therefore, natural that differences
would emerge on the interpretations of certain words as
reasoning is most of the time subjective and differs from
person to person.
The scholars of the first and second
centuries, after the demise of the
Prophet, therefore concerned themselves with the
rules of interpretations and the creation of
methods that would govern the use of reason.
These rules of interpretation and methods of
reasoning later emerged as a well-developed
science which is known as Usul al-Fiqh.
Usul al-Fiqh is a body of principles and methods by
which the rules of Fiqh are deduced from their sources.
It can be defined as : “The sources and principles of
interpretation and of legal reasoning that helps the
jurists arrive at the legal rules of conduct”.
Usul al-Fiqh is a science which deals with the sources
of Shari'ah and the methods of extracting rules from
The priciples of interpretation are derived from the
Qur'an and Sunnah in accordance with these rules
and methods. These include consensus of opinions
(Ijma‟), analogy (qiyas), juristic preference
(Istihsan), public interest (Masalih al-
Mursalah), presumption of continuity
(Istishab), blocking the means (Sadd al-Dharai‟), and
Muslim scholars developed these methods of
reasoning in order to extend the law to new issues
or to provide answers to new problems.
The meaning of Fiqh
The word “Fiqh” in the Arabic language, means
“understanding” and “ have the knowledge of
Technically: Fiqh is the knowledge of the legal rules
conduct ( that have been derived by the
jurists from specific evidences found in the Quran and
the Sunnah as well as other specific evidences in Ijma‟
During the time of the Prophet the term Fiqh has the
same literal meaning as Ilm or knowledge .
covering the whole of religion.
For instance the Holy Qura'n states: “That they
may gain understanding (Liyatafaqqahu) of the
religion” (9: 122).
The Prophet is also reported to have blessed
Ibn Abas saying: “O God give him
understanding (Faqqiho) in religion”.
Both, the Quranic verse and the Hadith mean a
deeper understanding of the religion and not
only knowledge of the legal rules.
However, later the science of Fiqh has got a
more specialized meaning.
- Fiqh as understood today includes various
branches of legal rules on transactions, family
matters, offences, constitutional and
international issues, and rules related to
worship or „ibadat.
Distinction between Shari‟ah and Fiqh
There is a difference between the meaning of the terms
Shari‟ah and Fiqh:
The real distinction between Shari‟ah and Fiqh is that
Shari‟ah is the law itself, while Fiqh is knowledge or
understanding of that law.
In other words , Sharī‛ah refers to what was decreed in
the time of prophethood found in the Qurān and
Fiqh is what has been gained from the efforts of
scholars after the prophet's (s) demise.
However the definition indicates that the
term Shari‟ah has a wider meaning than fiqh.
The term Shari‟ah includes both law –Fiqh-
and matters of Faith that is the „aqa‟id.
The Holy Qur‟an describes the purpose of the
Prophet‟s mission to be mercy not only to mankind
but also to all of God‟s creatures. (21: 107)
Mercy includes, among other things, protection and
safeguarding people‟s interest.
The Shari‟ah aims at safeguarding people‟s interest
in this world and in the next.
God instituted the Shari‟ah for the benefit of
mankind both in this word and the next. He has in
fact singled out Maslahah as the only objective of
The scholars agree that there is no injunction
in the entire Shari‟ah that does not seek to
secure a genuine Maslaha, that all of the
commands of Shari‟ah aim at realizing the
interest (Maslaha) and that all of its
prohibitions are designed to prevent
corruption or harms (Mafsadah) in various
The objectives of Shari‟ah:
In Islamic law They are five fundamental
1- Protection of Din ( Religion)
2- Protection of Life
3- Protection of Lineage
4- Protection of intellect
5- Protection of Wealth
The Protection of Din ( Religion) means to
protect the faith of every individual Muslim
from negative influences that may cause
confusion and undermine his faith.
Jihad is prescribed for defending
Din, prayer , fasting pilgrimage and zakah help
The protection of life means the prevention of
any harm that may result in the destruction of
the maintenance of good health while
Penalties are provided for those who destroy
life without legal justification.
The protection of wealth means that wealth
should not go from the hands of its owners
without a fair compensation.
In order to achieve this objective the
Shari‟ah prohibits theft and all other forms of
misappropriation . Shari‟ah also wants to
ensure that the wealth is transferred among
the members of the society in a fair way.
The protection of intellect means the
prevention of all negative and preserve
influences on a person‟s mind that lead to
corrupt and preserved human behavior.
the provision of education and healthy
conditions for its growth, Islam also prohibited
the consumption of alcohol and other
intoxicating substances that destroy the
The protection of lineage means the
prevention of all means that stop procreation
such celibacy, adultery, abortion…
the maintenance of healthy family life and
the institution of marriage encourage marriage
and Islam required children to attributed to
their parents while penalties are provided for
those who would corrupt it and destroy its
How perfect The King The Holy one “
And on the third time he would rise his
voice, and add:
“Lord of the angels and the ruh: Jibra‟il”
The Definition:The jurists have defined a legal
maxim as “a general legal rule which applies to all
Most important and principal legal maxims are:
1- Matters are determined according to intention.
2- Certainty cannot be removed by doubt.
3-The principle about things is permissibility .
4- Freedom from liability is a fundamental
5- Hardship begets facility.
6- Harm should be removed.
Acts have been linked to intention.
A tradition of the Prophet p.b.u.h. reads: “Deeds
are judged by intentions and every person is
judged according to his intention”.
The purpose of Intention (Niyyah):
1- It distinguishes between habitual actions and
actions of worship.
2- It distinguishes between action of worships
one from another.
3- it distinguishes the purpose of the action for
the sake of ALLAH only or not.
-In the event of a difference between the
intention and the wordings of the
contract, consideration should be given to
the meaning and not to the literal wording.
a statement supported by evidence or
witnesses is considered certain. Claims
cannot remove a statement supported by
For instance if a borrower claims that he has
settled the debt and the lender says he has
not, the principle is the borrower has not.
The applicable sub-maxim is:
which means that the principle is the absence of
According to this principle if a dispute is about
the presence of new states or conditions, the
principle is that they do not exist.
For example if the disagreement is about
whether the defect in a certain commodity has
occurred before or after the sale and the seller
denies that the commodity was defective, his
statement is accepted.
According to this legal maxim, all foods and
transactions are allowed unless they are
prohibited or have prohibited elements.
This is because the Quran and the Sunnah have
only mentioned the prohibited foods and are
mainly focused on prohibited transactions.
The jurists have concluded from this that
foods and transactions which are not included in
the prohibited lists are permissible.
Commerce and trade are areas where
creativity and innovation could be needed in
order to meet the needs of changing times
The Zahiris argue that the principle concerning
transactions is prohibition. This means that all
transactions which are not allowed by Shariah are
void and prohibited.
The majority of the Fiqh Schools are of the
opinion that the principle in transactions is
permissibility. They argue that the purpose in
transaction is to protect the interests of the
people and all those transactions that ensure the
lawful interest of the parties are allowed as long
as they are concluded by mutual consent (4:29).
Seeking refuge from him.
The adhan (call to prayer).
Recitation of the Quran and words of
remembrance and supplications”.
According to this principle persons are not
liable unless proven.
It follows from this that a person is not
held responsible solely on the basis of claims
made against him. The person who has made
the claims has to prove them.
Rules of law are general in nature to cover all
situations and individuals, and are not
confined to particular situations or persons.
in certain exceptional situations a general
rule may lead to injustice and harm.
According to this maxim difficulty is the
cause for easiness
Necessity (dharorat) refers to a situation
where a person strives to safeguard his
religion, life, property, mind, or offspring
This maxim is originally taken from the
Prophet‟s Hadith. It states: “la Darara wa la
Dirar” “Harm should neither be inflicted nor
Importance of property:
Property is the subject matter of ownership and all
It is also ranked among the five essential values
which the Shari‟ah protects.
The concept of property including all forms of
properties, patents, copyrights, confidential
information, and trade secrets.
Al-Mal in the Holy Qur‟an and Sunnah
- The word mal and its derivatives are
mentioned 86 times in the Quran and in
The Prophet :”
- The Qur‟an and the Sunnah do not specifically
define what mal is.
The meaning of the word mal includes all
things which can be acquired, possessed, and
owned by individuals.
Linguistically, things which are not possessed
or secured such as free air and the heat, the
heat from the sun or the light from the
moon, are not considered property or mal.
knowledge, health, honour, or
intelligence, are also not properties as they
cannot be possessed
Property linguistically should has beneficial
use in accordance with the accepted customs.
Things such as carrion or poisonous food
from which no benefit can be derived are not
a drop of water or a single seed of rice is not
Property in the view of Muslim jurists:
2 views :
1- According to the Malikis ,Shafii‟s, and Hanbalis
who constitute the majority of the Fiqh
Schools, Private property or mal includes: all
permissible things which have financial value.
How financial value could be existed in property ?
By the destruction of which a person is held
responsible either it is much or little.
- The financial value of a certain thing determines
whether it is property or not
2nd veiw: The Hanafis define property (mal) as:
a thing that can be possessed and which is
customarily used by the people.
The Hanafis confined the meaning of
property to valuable things that could be
possessed, and stored for later use.
This argument excludes intangible
assets such as usufruct (manfa‟ah) and rights
from the definition of the property.
1-Based on the value of property according to
Valuable and non-valuable properties
Valuable (Mutaqawim) property includes all
permissible things in Shariah, and things that
can be possessed and secured.
Non-valuable property, includes all those
things, which are prohibited by the Shari‟ah:
wine, prok... and things which cannot be
possessed: pork, wine, birds in the sky, fish in
the sea, and minerals inside the earth.
The validity of contract: depends on whether
the subject-matter of the contract is a
valuable or a non-valuable property. All
contracts concluded on non-valuable
properties are considered void. It is because
when the Shari‟ah prohibits the use of a
certain thing it also prohibits its sale and
Compensation for the destruction of non-
valuable property if it is owned by a non
- According to Hanafis: they consider pig and
wine as valuable properties as far as the non-
Muslims are concerned.
If these properties are destroyed while
they are owned by the non-Muslims, they
should be compensated.
- The majority of the schools, on the other
hand, consider pig and wine as non-valuable
property whether Muslims or non-Muslims
Two views whether a certain property is
considered movable or immovable :
1- Malikis view:
- Immovable property („aqar) includes land and
anything that is permanently fixed to it or those
properties which if moved they may change.
such as buildings, trees.
- Movable property is a property that can be
moved from one place to another. Such us
money, animals, books, car, etc.
2- Hanafi‟s view and some Fuqahas:
- Immovable property is a property that cannot be
taken from a place to a place like land.
Buildings, Trees, and anything planted on land are
not considered immovable properties but they
follow the land.
They restricted the meaning of immovable
property to land only.
If the land is sold together with the building
and trees the rules governing immovable property
are also applicable to the building and trees. If only
the building or the trees are sold without the land
the rules governing immovable property are not
applicable to them.
- Movable properties: are all those that can be
taken from one place to another whether they
remain in their original form or not.
Ex: money, animals, cars, books, and other
1- The right of pre-emption (shuf‟ah) can only
be exercised with regard to immovable
properties. The right however, cannot be
claimed with regard to movable properties
unless they are sold as part of an immovable
(Shuf‟ah is defined as the right of co-owner to
substitute himself for the purchaser if the
other co-owner decides to sell his share
Islamic law gives right of pre-emption in cases
of indivisible property)
2- The other consequence of this classification
is related to cases of bankruptcies:
In cases of bankruptcy, in order to settle the
debts of a bankrupt person, initially his
movable properties are sold. if these are not
enough to satisfy the debts, then the court
may order the sale of his immovable
Similar (mithli) or homogenous property
refers to those things which have an equal
quantity of something similar to them in the
money, rice, wheat, corn, barley, salt, oil, and
homogenous property are usually four types:
1- weight : gold, silver.
2- measures : grain, oil
3- numbers : eggs, orange
4- measurement such as meters:
Dissimilar or non-homogenous (qimi)
property is a property the like of which could
not be found in markets or when it is found
dissimilarities would still exist.
-They include all those properties which
cannot be exchanged by weight or
measurement of capacity such as
land, houses, animals, trees, precious
stones, used cars or books, hand-written
books and etc.
1-Homogeneous properties are considered
obligation (dayn) while non-homogeneous
property is classified as a specific thing („ain)
when a homogenous property such as rice is
sold indeterminately, the purchaser has only the
seller‟s obligation, which is the direct subject of
the contract and not a specific thing as it can be
any rice of the same quality.
Similarly, money is considered among the
homogenous properties and is always
indeterminate or an obligation (dain).
In contrast, „ain means is something
determinate or specific. A non-homogenous
property itself is the subject of the contract
as it is a specific and unique thing.
For example, when a house or a car is sold it
is a specific house or a car and not any house
or a car.
2- Riba may arise when parties deal with
homogeneous properties and do not observe
Ex: any additional amount charged on the
borrower of money is considered usury .while
it is permissible if an owner of non-
homogeneous property such us a car may
charge the borrower for the use of these
- Homogeneous properties are usually
considered ribawi properties when they are
exchanged there must be equality of weight
and on the spot transaction. If they are of
different kinds equality is not a condition but
delivery must be immediate.
if a homogenous property is destroyed, a
person is obliged to compensate it with a
property similar to it.
if a non-homogenous property is
destroyed, its price has to be paid.
Usable (Isti‟mali) property is a property that would
remain even after if is used such as
land, car, cloth, books.
perishable (Istihlaki) property is a property which
does not survive once it is consumed .
Ex: food, water, petrol, paper and money are
considered perishable properties as they could
only be used once.
Perishable properties are most of the time
homogeneous properties. While dealing with these
properties it is necessary to observe certain
conditions in order to avoid the possibility of riba.
Certain transactions are not applicable to
- Perishable properties cannot be rented out
, these properties can only be used once
therefore Islamic law prohibits renting these
properties. But it is allowed to lend or borrow
these properties. And while lending these
properties any condition for additional return
is considered usury.
- Thus a person may charge another for the
use of his house while he cannot charge him
for the use of his money.
Nuqud refers to gold, silver, and currencies
while „urudh refers to those merchandise
goods which are not measurable.
The examples of „urudh are silk or cotton
- According to Malikis in partnership contract
partners may contribute goods.
Other school do not agree and argue that all
partners must contribute in cash.
Intellectual properties :literary and artistic
works, inventions, designs, registered
trademarks, trade secretes and confidential
information that could not be disclosed without
Intellectual works are the outcome of
tremendous research and efforts carried out by
the scientists or the authors.
An intellectual work as such is the property of
the one who made it as he has the right to
benefit from his labour. This right is protected by
law and others cannot take and use a certain
property without its owner‟s permission.
protection of intellectual properties means
that no one else should duplicate it without
its author‟s permission.
If you person who has bought disk or book
you have the right to sell the same disk or
book but you have no right to copy the disk
or book and sell it.
Protection of intellectual property gives the
inventor a proper incentive to improve and
develop it. It may also encourage others to
contribute to different scientific fields.
When insulted while fasting
I am fasting , I am fasting.
Islam has imposed various types of rights and
obligations on every human being.
A person should fulfil his obligations towards
Allah swt, towards his own self (nafs), towards
other members of the society and towards the
physical nature and the environment.
He should obey Allah‟s laws that imposes these
obligations on him and at the same time
entitles him to certain rights
Haq literally means
proper, right, true, authentic, valid, establishe
d, a just claim, confirmed as a truth, duty, or
The jurists define haq as “a prescription
acknowledged by the Shari‟ah that gives
authority or right and assigns responsibility
This definition includes both the rights of
Allah swt and the rights of humans.
The source that confers right or imposes an
obligation is Shari‟ah
The Pillars of Right
1- The owner of the right (sahib al-haq) which
could be Allah swt, humans, or institutions.
2- The subject (mahal al-haq) on which a right
is exercised . Ex: debt, property.
3- The person who is under the obligation
(man „alayhi al-haq). Ex: the borrower is
under obligation to return his debt.
4- The source of Haq.
Rights can be classified in different ways:
1- Rights of Allah and rights of humans and
A- The Rights of Allah swt (Haqqullah): They refer to
rights that He has upon His creatures.
The rights of Allah swt are divided into two main
a- Exclusive rights of Allah swt: include His rights on
human beings to worship Him, to obey His laws, and
to pay zakat and penances.
b- Rights, which, are intended for public interest and
are not specifically assigned to any individual. These
are called the rights of Allah swt as they are
beneficial to the community or the public at large.
Ex: mineral wealth: rivers , forests..
1-The right of ALLAH cannot be abolished.
2- no person can absolve or exempt another person
from his obligations towards ALLAH.
3-The right of ALLAH cannot be inherited.
Ex:the heirs are not obliged to fulfil an act of
worship such as prayer which the deceased did not
4-The offender who repeatedly violates the rights of
Allah swt is punished once. For instance, a person
who has committed theft many times is punished
5- The enforcement of the rights of God is the duty
of the state and it is not left to the individual.
B- The Rights of Humans (Haqquannas):
They refer to those rights, which are intended
for the protection of private interests.
-These interests can be:
• general: ex: all human beings are entitled to
the protection of their
religion, life, property, health, and honour.
• They can also be specific :
ex: in a sale contract purchaser has a right to
own the object which he has bought and seller
is entitled to receive the price.
1-The enforcement of the rights of human are
entirely at the option of the individual who
have them. he may demand his rights or
waive them. (right of shuf‟ah).
2- The offender of a private rights is punished
as many times as the right is violated.
3- person can exempt another person from his
obligations towards him, ex: a seller may
exempt a purchaser from paying the price.
The right of ALLAH cannot be exempted.
For example: no one could exempt anyone else
from obligatory prayers or from the payment
In contrast :a seller may exempt a purchaser
from paying the price or a creditor may
exempt a debtor from paying the debt.
C- Combined rights (Haq almushtaraq):
Those rights were the rights of ALLAH and
those of human are combined.
Ex: Defamation (qadhf), Retaliation (qisas) .
2-Financial and non-Financial Rights:
Financial rights (Al-Haq al-mali): are those that
are related to property or its usufruct or rights
that may arise from commercial transactions.
Ex: a tenant has a right to stay in a house which
he has rented.
A lender in loan contract has the right to claim his
Non-financial rights are those, which are not
related to property such as the rights of
parents, the rights minors, the rights of husband
and wife , custody, the rights of
citizens, authorities or the states.
3-Rights over Persons and Rights over Property
1- The Rights over Persons
Rights over humans are those that the Shari‟ah
has assigned to one person over another.
Like: the parties to a contract of sale are under
obligations to exchange the sold item and the
A debtor is under obligation to settle his debt to
the creditor and a husband is under obligation to
provide maintenance to his wife.
The right over a person is on the shoulder
(dhimmah) of another person it does not
depend on the existence of a property.
Ex: the right of a creditor over a debtor is not
terminated if the sold item is destroyed
The right over a person cannot be claimed
from another person
2- The Rights over a Property
The right over a property is confined to the
Like the right of ownership, which enables the
owner to use or exploit his property within
the limits ordained by law.
Ex: the right of the lessee to use the leased
asset for a specified period.
Right over properties are abolished when the
properties are destroyed
Ex: the contract of lease is terminated when
the asset is destroyed
4- Rights that can be waived and rights that
cannot be waived:
Rights of Allah cannot be waived.
All rights of humans or private rights can be
There are certain Humans rights that cannot be
a- Future rights cannot be waived : a partner
could not waive his right of pre-emption in a
property, which is not offered for sale.
WHY?? these rights have not yet come into
existence, they cannot be waived.
b- Authoritative rights established by the
EX: the right of a father or a grandfather to
have guardianship over their children.
c- Rights which if waived may result in changes
to the law cannot be waived:
EX: a person cannot waive his right to use his
own property or disown or abandon it. The
property would become without an owner and
the law does not allow it.
d- Rights which if waived, other person‟s rights
will be affected.
EX: a mother cannot waive her right in the
custody of her children.
5-Heritable and Non-heritable Rights:
Heritable rights like:
- Rights intended to serve the purpose of
guarantee can be inherited.
Ex: a pledged property can be kept by the
heirs of the pledgee after the later dies.
- rights related to immovable property (huquq
al-irtifaq) such as the right of water or the
right of way can be inherited.
These are rights that follow the land and are
included in it. Anyone who inherits or owns
the land also owns these rights.
Non-heritable Rights: are things related to the
person and end with his death, and no right
left for him his death:
Ex: rights related to his thought or honesty
guardianship over his oneself or his money.
Misuse or Abuse of Rights:
If a person does something which is not his
right, this is considered injustice. However, if
he does some action which is his right, but he
does it in an improper way, it is considered
the misuse of right.
person has to exercise his right in a proper
way that will not harm others and it should be
in accordance with Shari`ah teachings.
When the exercise of a right lead to a greater
harm to the society an individual is deprived
of his right in order to prevent a common
-Ex: Monopoly black marketing stopping the
rider (talaqi al-ruqban) sale of grapes for
wine making are prohibited.
-Ex: a person cannot make a will (wasiyyah)
that would result in a harm to the creditors or
- a person suffering from a mortal disease may
divorce his wife but this exercise of his right
cannot deprive the wife from inheritance.
- a person is prevented from raising a wall of
his house in a way that would harm the
neighbours by preventing light and air, or
opening window in a way that would take
away his neighbour‟s privacy.
When a certain action is done without proper
care as a result of which harm would be
caused to others the person is held liable.
In Islam, the real ownership belongs to Allah
Quran in many verses refers to the ownership
of God over all the creation.
From the other hand Ownership is a part of
human nature . Islam therefore recognizes
and upholds an individual‟s right to private
property and ownership.
Therefore the Quran uses certain phrases
such as “his wealth”, “their wealth”, “your
wealth”, and “the property of others” which
suggest private ownership of an individual
like other rights the right of ownership is not
absolute. It is subject to certain restrictions
and regulations as a Muslim holds a property
in trust for which he is accountable to Allah
Definition of private ownership:
“It refers to a right over property, which
excludes others and enables the owner to
make use of the property itself or its
Causes for the acquisition of ownership:
A person may acquire ownership of property
through three ways:
1- Contracts : like contract of
sale, gift, donation , will, partnership
2- Inheritance: in contracts a person becomes
the owner of a property intentionally , in
inheritance a person becomes the owner of a
property by operation of law.
3- The rule of first possession of natural
hunting, exploitation, application of labor to
natural resources like trees cut down from a
Private ownership is divided into two divisions:
complete and incomplete ownership.
1- Complete Ownership: It is an ownership over a
certain property and its usufruct, which entitles
the owner to all the legal rights. The owner has
complete authority to use, exploit, or appropriate
his property in a lawful way. (sale, gift
, donation, waqf...).
2- Incomplete ownership: it is divided into 3 types:
ownership over rights included in a
land, ownership over property, and ownership
A- Ownership over Rights, included in a Land (Huquq
These refers to the right of water, the right of
irrigation, the right of passage.
These rights cannot independently traded because
they are related to land so any one owns the land
owns the rights.
B- Ownership over a Property : It refers to a situation
where a property is owned by one person and its
usufruct by another. For example, in a leased
house the owner only owns the house while the
usufruct is owned by the lessee.
C- Ownership over Usufruct :it refers to the
benefits of the asset while the owner owns
It can be obtained through borrowing
(ia‟arah), lease (ijarah), endowment
(waqf), will (wasiyyah)....
Ex: In lease (ijarah) a certain usable property
such as a house, a car or a book is leased in
return for a consideration. The lessee who
owns the usufruct may use it himself or he
may allow someone else to use it in return for
a consideration or free as long as the
property is used for the same purpose.
The Characteristics of Ownership over Usufruct
1- Unlike complete ownership, it is restricted
to time ,place, and conditions.
2- contract in ownership over usufruct is trust
contract, If the property is destroyed or
becomes defective, a beneficial ownership is
not held responsible unless negligence is
3- a beneficial owner is not responsible for the
maintenance expenses of the leased property.
If ownership over usufruct is obtained
through a borrowing (I‟arah) the borrower is
responsible for maintenance expenses of the
Restrictions on Ownership Rights
The right to own property is not an absolute
right but it is subject to certain conditions.
Restrictions relate to acquisition of ownership :
A person cannot acquire ownership rights over
public properties as they are meant to benefit
He cannot own prohibited things such as
wine, pigs, etc as they are not considered
property in Shari‟ah.
In acquiring ownership over other properties a
Muslim is bound to observe certain limitations.
For instance, he has to avoid unlawful means of
earning such as usury, gambling, trade in
haram goods, cheating, corruption, stealing
and unlawfully taking others property.
Restrictions relate to utilizations
Muslim is commanded to spend his wealth for
the sake of Allah swt and help his nears of kin
and the poor by giving them their due, charities
He is also prohibited from wastage.
A Muslim has to invest his wealth in a useful way
that would boast the economy and create job
opportunities to others.
The owner is free to exercise his right over his
property. However he has to use his right in a
permissible way that would not violate other
For example, no one is allowed to raise his
building to obstruct light and air from reaching
Abuse of ownership
When the right of ownership is abused the
state may interfere and regulate private
The government may also impose restrictions
upon development and construction in a
certain area and property. Owners are bound
to follow them as they cannot develop their
lands according to their own wishes.
Non-use of private property particularly land
may also warrant state intervention. By taking
an uncultivated land from a person who is not
cultivating it, and giving it to another person
who may cultivate it.
Ex: during the Prophet‟s time, Bilal was granted a title
over an agricultural land. Bilal, however, did not
cultivate the land as a result the land was left
barren. The second calipha Umar asked Bilal to
cultivate the land, failing which he took the
uncultivated part of land over from Bilal. By taking
an uncultivated land from a person who is not
cultivating it, and giving it to another person who
may cultivate it.
The government has also the right to take private
land in order to build
highways, roads, hospitals, and other public
utilities. It may also regulate the utilization of
private property in accordance with the public
interest. For example, price ceiling or price control
of certain essential commodities could be
implemented in the public interest.
Properties that cannot be owned by Individuals
Recognition of private ownership is one of the
fundamental principles of Islam. However
certain properties cannot be owned by individuals.
Ex: atmosphere, free air, heat coming from the
sun, ocean and its resources, and space. These
properties belong to all mankind.
The prophet has stated “Muslims are partners is
three: grass, water and fire”
The principle that is laid down in the hadith is that
the society is declared the owner of natural
rivers, forests, land, mountains, minerals, soil
resources etc, these resources belong to the
people who reside in that territory who have
equal right to benefit from them.
These resources should be under the
supervision of the state. The state should
manage them either directly or through
private companies for the common welfare of
However companies cannot claim ownership
of the forests for instance but they are only
authorized to do logging activities in a certain
area of the forest for limited period.
in certain situations it is possible that a public
property is transferred into a private property.
For instance, land belongs to the public.
However, the state may give land to
individuals. A hadith of the Prophet p.b.u.h.
states: “whoever revives dead land has the
right of ownership to it”.
There are some other properties which cannot
be owned by individuals such as
mosques, graveyard and waqf.
Humans are social beings who are not self-
sufficient to fulfil all their needs individually
without help from others. They need to
trade, interact and cooperate with each other.
It is through Trading, and exchanges that
humans fulfil their mutual economic needs.
A Muslim should not take another‟s property
unlawfully but by way of trade and with
The only valid way through which ownership
could be transferred is through mutual
agreements and trading.
Much of Islamic economics and finance is
based on contracts between two or more
parties. Whether it is a contract to purchase
goods or a contract to make a loan
In this theory we will discuss the principles
of trading and mutual agreements. And will
explains detailed rules and regulations on the
formation of a contract.
Definition of Contract („aqd)
The word „aqd (contract) in Arabic language
means: tying tightly, as in tying a rope. Arabs
used the word to speak about firm belief or
They used to say „qd al yamin to mean „give an
oath‟. Along the same line is „adqat al nikah
meaning a marriage contract.
The word „aqd also carries the meaning of
obligations, as used in the first verse of Surah al-
Maida. O ye who believe! Fulfill your obligations.
In Islamic jurisprudence the word contract is used
to mean “a legally binding obligation, which has
consequences for its subject”.
According to Islamic Law a promise may not be
legally enforced although it is strongly
recommended by religious and moral values to
be fulfilled. (Surah al-Saf 61:2).
Therefore a breach of promise to marry does
not give a cause of action according to Shari'a.
However, in certain circumstances a promise
may become legally binding.
promise is widely used by Islamic banks in B.B.A.
and murabahaÍ transactions.
When the bank relies on the promise and
purchases the property, the customer is under
an obligation to purchase the property from the
bank based on the promise which he has made.
Pillars of Contract (arkan)
“Rukn what is considered to be necessary for a
thing to exist, and it is part of it” .
Consent is the cause for the existence of a
certain contract. If either party to a contract
does not give his consent the contract does
The Prophet is narrated to have said: “It is
unlawful to take the property of a Muslims
except by his consent”.
consent is a hidden phenomenon and unless
Consent can be known through : an offer (ijab)
and acceptance (qabul) by the parties .
According to Hanafis, a contract stands on two
pillars which are offer and acceptance.
According to Hanafis, the elements of „aqd
include anything that manifests the meeting of
two intentions either through conduct, action or
Some other matters are not considered as pillars
of a contract however their existence is
For example it is necessary that there must be
contracting parties in order to have ijab & qabul.
Similarly there must be the subject matter upon
which the parties have the agreement to indicate
that there is the meeting of two intentions.
According to The majority of the Fiqh
Schools, pillars of contract are are three:
1- expression (sighah), which includes offer
2- the party, or the parties (al „aqidan).
3- the subject matter (mahal al „aqd) or the
property on which a contract is concluded.
I. Expression (Ijab and Qabul) (Sighah)
Mutual consent of parties is the basis for
formation of a contract.
However consent is an intangible mental fact.
Therefore this intention must be manifested in
sufficient form of words/conduct that indicates
a definite intention to contract.
Sighah is “a method to manifest the intention
to contract. It consists of Ijab & Qabul”.
The contract is concluded when the connection
between the ijab (offer) and qabul (acceptance)
According to the Hanafis offer is a statement
that comes from the party who first expresses
his consent and this could be from the buyer
or the seller. the latter is considered (qabul).
The majority of the Fiqh Schools, offer is a
statement that comes from the seller who as
an owner of a property. qabul is made by the
buyer or the person to whom the subject
matter of the contract is addressed regardless
as to whether this comes first or later .
( if the first statement comes from the buyer
and the second statement comes from the
seller the latter is considered offer while the
former is acceptance).
For instance: if a buyer in a sale contract
offers to buy the goods from the seller by
saying: “ I bought this book from you for
“ringgit 100“ ”. To which the seller replied: “I
sold that book to you for “ringgit 100” ”.
In this situation, according to Hanafis‟
view, it was the buyer who has said the ijab
being the first person who manifested the
intention to contract. On the other
hand, according to the others‟ view, the word
of seller is the ijab since he was the owner of
Forms of Expressing consent :
The most obvious form through which consent
could be expressed is through spoken words or
Any phrase and words are acceptable as long as
they reflect the intention of the offer or to make
an offer. However, the words used should show
a definite intention to form a particular contract.
Words should also indicate whether the contact
made by the parties is a sale, waqf, rent or a
Both present and past tense may be used to
express a valid offer while words used to show
intention to offer in future or to ask for
confirmation are not enough.
. For example the phrase “I will sell the house
to you” only indicates a promise to sell in the
future and is not a contract.
A contract may also be concluded by writing .
For instance: when an e-mail sent offering a
specific object for sale for a specific
price, this amounts to a valid offer which will
be binding on the offer.
A person who cannot express his consent
verbally may do so by gestures. For dumb
people, a sign or gesture is equal to speech.
A contract may also be concluded by action:
(the seller delivers the commodity to the buyer
without any expression of words):
In Fiqh it is known as “mu„âtah”, “ta„âti” or
“murâwadah”. This simply refers to the
conduct of a seller, displaying commodity for
sale attached to it its price and pays the seller
customarily this indicates that the
parties consented to the transaction
Exchange of offer and acceptance through
modern means of communication such as fax
and the internet is included under writing.
It can be also concluded through Automatic
Teller Machine (ATM) .
Machines that dispenses food and drink or
coins are considered to be written exchanges.
Conditions of Offer and Acceptance
1- Clarity: The words used in offer and
acceptance should clearly indicate and express
the consent of the parties with certainty.
2- Conformity of Offer with Acceptance:
For example when a seller offers to sell two
computers for RM 3000 the buyer should
accept the offer and buy both computers for
RM 3000. He cannot buy one of the computers
for RM 1500.
3- Continuity Between Offer and Acceptance:
which means acceptance should reach the offer
within particular time or in the same session of
contract (Majlis al‟aqd).
The session of contract (Majlis al‟aqd).
The session of contract refers to “a period of
time in which an offer is made negotiated and
accepted while both parties remain at the
This means that acceptance should be made
before both or one of the parties separate
and leave the place.
If acceptance is not taken within particular
time, offer may not survive. The party who
has made the offer has the right to withdraw
or change the offer.
The majority of the Fiqh Schools are of the
opinion that an offerer can also withdraw his
offer even within the session of the contract
but before an acceptance could be made.
The Malikis, on the other hand, argue that
unless the offeree accepts or rejects, the offer
cannot be withdrawn within the session of the
contract. They argue that the offerer, by
making his offer, has established to the
offeree the right to accept the offer. They say
the offerer is bound by his offer, until it is
either accepted or rejected by the offeree,or
when the session is over.
II The Parties to a Contract (contracting parties)
- The 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
- Definition of Ahliyyah
literally means capacity or competence.
Technically, it has been 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
Types of capacities
Muslim jurists have therefore recognized two
types of capacities:
1- Ahliyyah al-wujub or Receptive (passive)capacity
2- Ahliyyah al-ada‟or Active Capacity
Receptive (passive)capacity Active Capacity
ahliyyah al-wujub Ahliyyat al-ada‟
1- 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)
Types of Ahliyyah al-wujub
A- Incomplete receptive capacity is a type of
capacity that enables a person to receive only
rights but not obligations (positive).
This capacity is established to a fetus .
Fetus is part of the mother as it does not have an
Fetus: is entitled to certain essential, beneficial
rights: There are 4 rights granted:
1- a fetus has the right to be attributed to his
2- He is also entitled to receive his share of
3- He is also entitled to receive his share in a
will (wasiyyah) .
4- He is also entitled to receive his share in
-but a fetus is entitled to these rights only
when it is born alive .
B- Complete receptive capacity: it refers to a
capacity through which a person receives rights
- A person acquires this capacity after his birth
and retains it until his death.
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
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.
2- 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 Shari‟ah”.
- 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-ada‟ could be
complete or incomplete
A- 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
- A child in this age group is called sabi al-
mumaiyz or a child who could distinguish
between good and bad.
According to the Shafiis and Hanbalis 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.
- According to the Hanafis and the Malikis:
- his contract is of 3 types.
1.Beneficial „aqd is valid (to receive gift or will)
2. „aqd that causes loss to him even with his
guardian‟s permission is void (Talaq, give
gifts or become a guarantor for another
3. „aqd that may cause either benefit or loss
(eg: sale, hire) it depends on the approval of
B- complete active capacity: Complete capacity to
acquire rights & responsibilities. He can enter to
any „aqd without the need to get any one‟s
- 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
- 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
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
purchase, rent, wakalah, partnership....
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
Obstacles to capacity refer to “a situation where a person
is restrained from dealing with his property”.
1- Insanity ( ): where a person‟s mental capability is
affected. Consequently, this affects his ability to make
a rational decision.
- All contracts performed by an insane person are
- A transaction made by a person who is not
continuously insane in his state of sanity is considered
2- Idiocy ( ma‟tuh): 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
He could not enter into contracts that are
He may enter into contracts that fall between
these two extremes with the permission of his
3- Unconsciousness : it is a disease of
mind or heart which may weaken or suspend
a person‟s power to think.
- Such a state could be compared with
sleeping. Sleeping however is a natural
state, but unconsciousness is not. A contract
made by such a person is not valid.
4- Sleeping: person‟s mind becomes in its
lowest level of activity. He is not conscious of
what is occurring around him.
- the contracts performed by a sleeping person
are not valid.
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 one‟s 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
- There are two views on the validity of a contract
entered into by a person who intentionally takes
1- 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 person‟s rational power to
make a proper decision.
2- The majority of the Fiqh Schools argues that
contracts entered into by a person intoxicated
involuntarily are not valid.
- 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.
6- Prodigality (Sufha):
Sufha refers to a situation where a person‟s
financial decisions or activities run contrary to
the guidelines of Shari‟ah and reason.
A safeh is a person who is wasting or spending
his wealth improperly.
- A person who could easily be deceived is
considered as a sefih.
- The opposite of sufha is rushd which refers to
the maturity of mind. Rashid 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 sefih, and once a person is
declared a sefih 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 sefih
could not be executed unless the judge is
satisfied that the transaction is in his favour and
- Types of Sufha :Two types:
1- Those who have become adult but are still
sefih. He is not allowed to interfere with his
property. He would be under the supervision of a
-According to Imam Abu Hanifah, after a safih reaches
the age of 25 years his property should be returned
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.
2- Those who after attaining maturity of mind
- Imam Abu Hanifa :no prevention could be imposed
on such persons.
- The majority of the Fiqh Schools and Abu Hanifah‟s
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.
7- Insolvency or Bankruptcy
When a debtor‟s debts are equal to or exceed his
assets he is considered to be an insolvent or
- On the application of the creditors, the court may
declare the debtor as insolvent to prevent him
from transferring his property in favour of others
through gifts or may make admission of new
- Once a person is declared insolvent, he cannot
enter into transactions that would reduce his
assets. For instance, he cannot create waqf, or
make a gift, or selling a property for a lower
- Insolvent‟s transactions are not valid unless
approved by the court or the creditors.
- The court then sells his property and divides
the proceeds among his creditors.
- How the court makes distribution?
The court begins by paying cash if the debtor
has any. If it is not sufficient the court may sell
debtor‟s movable properties („arudh) such as
jewelleries, car, and other valuable things. As
a last resort the court may sell his immovable
properties such as house and land.
According to Imam Abu Hanifah the debtor
should not be restrained from disposing his asset
even if his debts are equal or more than his
Reason: the debtor has full rational capacity and
does not suffer from any impediment that would
prevent him from dealing with his wealth.
According to him imposing restraints on a debtor
would go contrary to human dignity and would
deprive him of his right over his wealth.
Solution: the debtor should be ordered by a court
to settle his debts failing which he could be
forced or imprisoned to sell his property himself
and to settle his debts.
The majority of the Fiqh Schools and Imam
Abu Hanaifah‟s two disciples do not agree.
They argue that on the application of the
creditors a judge may declare a debtor as an
insolvent, sell his assets and settle his debts.
8-Mortal illness (maradh al-mawt):
- Mortal illness 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.
- Mortal illness 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 mortal illness may
make certain contracts: waqf , charity, or make
gift of his property to some of his heirs or non-
- 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.
A party to a contract who concludes a contract
on behalf of another should not only have
complete capacity of performance but he
should also be authorised to enter into the
He may derive this authority either from the
Shari‟ah or from an agreement.
In guardianship (walayah) authorisation is
granted by Shari‟ah while in agency (wakalah)
a person who has complete capacity of
performance authorises another person to
conclude a certain transaction on his behalf.
1- Guardianship (Al-Welayah):
Al-welayah literally means help and assistance.
- Technically: “it is an authority granted by
Shari‟ah to a person over the person and
property of another by virtue of which his
dispositions and transactions in respect of such
a person would have legal consequences.
- Guardianship could be over a person: it is
concerned with the ward‟s private matters such
as his education, medical care, and marriage
- Guardianship over property : it is concerned
with the protection of a ward‟s property, its
management, and investment. The guardian is
authorised to make financial dispositions and
transactions on behalf of the ward.
- Types of people who need guardianship
- A minor is in need of guardianship: It begins
from the day a child is born and ends when
he/she reaches the age of majority.
- A father is the natural guardian of his child‟s
person and property.
- father cannot release himself from
guardianship as it is granted by the Shari‟ah. –
- In his absence legal guardianship would
devolve upon father‟s executor, father‟s
father, the executor appointed by the father‟s
father, the judge, and the executor appointed
by the judge.
- A lunatic, and an idiot are also in need of
- A person who is in a state of lunacy or an idiocy
immediately after attaining the age of majority
remains under the guardianship of the same
- If lunacy or idiocy occurs after a person has attained
the age of majority, a judge or a person appointed
by him assumes guardianship over such a person.
- In case of prodigal (sefih) if prodigality continues
from the childhood then a person who was his
guardian immediately before attaining the age of
majority would remain his guardian. However, a
judge is the guardian of a person who becomes
prodigal after attaining the age of majority as only a
court has the power to declare whether or not a
certain person is prodigal.
- A bankrupt person is in no need of guardianship
as he has complete capacity of performance.
However, he is restrained from certain financial
dealings concerning his property in order to
protect the interests of the creditors.
- The conditions for the guardianship are as
1- A guardian should have a complete capacity to
2- A guardian must be a Muslim . A non-Muslim
cannot be the guardian for a Muslim ward and a
Muslim cannot become the guardian for a non-
3- A guardian must be just. A guardian must be
a pious and practising Muslim and has a good
4- A guardian should have authority and be able
be to make decisions required by the
guardianship. He should protect, manage, and
invest the property of the ward. A guardian
should spend on the maintenance of the ward
with moderation from the ward‟s property in
accordance with his social status and wealth.
5- A guardian should always ensure that the
interest of the ward is protected while making
-He is not permitted to use his authority in a way
that would cause loss to the property of the
ward.(ex: he cannot make a gift of the ward‟s
-any act of a guardian that is beneficial to the
ward is acceptable. (ex: accepting a gift or a
- a guardian may conclude transactions where the
possibility of profit and loss is equally present
such as sale, purchase, and partnership.
- A guardian cannot become one of the parties
to a contract with the ward. He cannot sell or
rent his property to the ward neither he can
buy or rent ward‟s property.
If a guardian violates one of these
conditions, the judge may remove him or he
may appoint another guardian to jointly
manage the property of the ward with the first
literally means: protection delegation or
Legally: it refers to “a contract where a person
who is fully competent authorizes another who is
equally competent to do a certain well-defined
legal action on his behalf”.
-An agent (wakil) is someone who establishes
contractual and commercial relations between a
principal (asil/muwakkil) and a third party for
which he can receive a commission.
-The contract of wakalah is a non-binding
The necessity of to wakalah:
People need agents for variety of reasons:
- A person may need an agent to act on his behalf
as the issue may require specialized knowledge
and expertise. (ex: a lawyer..).
- Sometimes distance may force a person to
appoint an agent as he himself may not be able
to travel and it may cost him less in terms of
expenses and time to appoint an agent.
- a person may not have enough time to
personally attend to all his business
- there is also political agency (wakil rakyat)
where it is impossible for all the people to come
together and discuss issues related to
governance and politics.
Comparisons between guardianship and agency.
1- in guardianship one of the parties lack legal
capacity while in agency both parties have legal
2- guardian is appointed by law while an agent is
appointed by the principal.
3- the guardian and ward should have the same
religion, but a Muslim principal my appoint a
non muslim agent.
4- a guardianship is usually not paid while an
agent is entitled to his commission.
5- a guardian remains a guardian until a minor
reaches the age of majority while a principle
may at any time terminate the service .
Muslim jurists had laid down four conditions
for the subject matter:
1. It must be in existence at the time of the
2. It can be delivered
3. It should be precisely determined
4. It must be suitable for transactions
according to Shari'a
1.The subject matter must exist
Islamic law requires that subject matter must be
in existence at the time when an „aqd is
concluded. Otherwise an „aqd is void, even if the
subject matter would exist in the future.
The wisdom behind this prohibition is the
possibility of gharar or risk that is associated
with the sale of the subject, which is not in
Therefore the sale of the animal fetus yet to be
born while it is still in the mother‟s womb is
void if the mother is not part of the sale.
Exception is given to bay al-salam (forwarding
contract) , bay al-istisna (contract of
manufacture), ijarah (contract of hire) based on
necessity and customs.
2. The subject matter can be delivered.
Islamic law requires that subject matter must
be able to be delivered to the contracting
parties. Otherwise an „aqd is void.
Hence, it is void to sell a bird on the sky, fish
in the sea or runaway horse.
3. The subject matter should be precisely
Islamic law requires that subject matter must be
precisely determined and known to contracting
parties. Sufficient knowledge about the subject
matter is necessary to avoid future disputes.
For instance: The genus, species, quality, and
quantity should be clearly described.
If the seller describes goods to be sold as being
of a certain quality, and the goods upon
inspection proves to be of inferior quality or
value, the law allows the purchaser an option
whether to cancel the sale under the “option of
misrepresentation” or to accept the goods.
4. The subject matter must be legal.
Islamic law requires that subject matter must be
of commercial value, otherwise an „aqd is void.
Therefore the sale of the wine, blood, pork is
void even if these articles are of value to others
or according to civil law.
Similarly, the sale of items that can not be
secured or possessed, such as fish in the
sea, bird in the air, etc, But once possessed, it
can become the subject matter of transaction.
In Islamic law of transaction each contract has a
certain purpose and effect.
The purpose of a contract refers to the main
purpose for which people use that contract.
The effect of a contract refers to its
consequences or results, and the rights and
liabilities of the parties.
For example, the purpose behind a contract of
sale is to enable the parties to exchange their
counter values with mutual consent while its
effect is the transfer of ownership from the seller
to the buyer in return for a consideration or
The purpose of a lease contract is to allow the
tenant to use the leased asset while its effect is
to transfer the ownership over usufruct to the
tenant with consideration.
The purpose of Kafalah contract is to provide a
guarantee to the creditor while its effect is to
enable creditor to claim his debt either from the
principle debtor or the guarantor.
The parties are at liberty whether or not to enter
into a certain permissible contract .
However ,once they have concluded the contract
they are automatically entitled to its purpose and
Any condition that would change the purpose
and the effect of a contract is not acceptable.
Expression and the Hidden intention
The question here is whether the fulfillment of
the competence of the parties and the existence
of consent are sufficient ground for the validity
of a contract or we have to look behind intention
to the motive and investigate whether the
motive was lawful or not?
Is it sufficient for the validity of a contract to
fulfill its pillars and conditions or it should be
concluded for a purpose for which it is intended
by Shari‟ah ?
Does the existence of unlawful motive behind a
lawful contract make a contract invalid?
- To the Shafiis and Hanafis, motive is
something hidden and is left to God.
- They don‟t look beyond the agreement at the
- They say that the Shari‟ah requires that the
parties entre into a contract by mutual
consent and that all the pillars and conditions
of the contract should be fulfilled.
- Thus, bia‟ al „ina, the sale of grapes to a
person who would make wine, the sale of
arms during the civil war, and zawaj al
Muhallil are correct-sahih-contracts.
- The Malikis, Hanbalis, on the other hand, look at
the cause or the motive of the parties. Thus, if
the cause or the motive is unlawful, the contract
is also unlawful and vice versa.
- For example, they do not allow the contract of
gift, when such gifts are given to the people in
authorities. They argue that the motive is
- They argue that the permitting such contracts
would promote prohibitions and sins, they
therefore use the juristic method of blocking
means ( ) to prohibit such contracts.
Fictitious Contract (al-„aqd al-sowri)
This happens when apparent intention (irada
zahiriyah) is present and hidden intention
(irada batiniyah) is absent.
- The parties while making offer and acceptance
do not have intention to make that contract.
In this case the contract is called fictitious or
- The examples of artificial contracts are
contracts that are concluded by persons who
are minor ,insane, drunkard, sleeping.
- contracts made by mistake, coercion, and
contracts made for an unlawful purpose are
Deficiencies of Consent
When the consent is defective, the contract is
The existence of the following factors makes
the consent defective.
1- 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
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 person‟s choice.
Duress does not destroy the capacity of a person
but destroys his consent.
1-The one who uses force is capable of
implementing his threats.
2-The person forced is certain that the one who
uses force would implement his threat.
3-The nature of threat is such that it really
4-The threat is immediate.
5-The force is used for an unlawful purpose.
To the majority the contract is void
2- Mistake: It refers to doing some action
A mistake refers to both mistake with regard to
the substance of a thing and mistake with
regard to the attributes of a thing.
- When a mistake is with regard to the essence
of a thing, e.g. when the seller thinks he sold a
thing made of silver and the thing turned out
to be made of gold.
This type of mistake invalidates the contract
as it is void ab initio
Mistake with regard to the attributes of a thing
refers to a mistake where for example, the
buyer bought a certain product with one color
and later he noticed that it is of a different
The validity of such contract depends on the
approval of the party who may suffer from the
3- Fraud: ): “it refers to a situation where the
performer of a contract is made to believe that the
contract is in his interest, but in reality, it is not”.
- Types of fraud: Fraud can be actual, verbal or in
the form of hiding the truth.
Actual fraud refers to: a situation where the
person through his actions changes the subject of
the contract with the intention to cheat another
Example: painting a car in order to look new, or
changing the mileage of a car.
- The majority is of the opinion that the purchaser
has the option to return the thing, while the
Hanafis say the purchaser is entitled to
Verbal fraud: is where one of the parties tries to
convince another party by words to enter into a
contract( giving wrong information or lying) .
Example: if a seller says another person offered such
and such a price or wrongfully describes a thing.
This action is prohibited as it amounts to cheating
but it does not affect the validity of a contract except
when the goods are sold for a higher price than the
market as in this case it combines both fraud and
serious deception .
Fraud may also happen when a seller does not
disclose the defects of the sold goods (ex: accident
in the car). In this case the purchaser has the option
of defect which entitles him to either approve or
cancel the contract.
4- Deception (al-Ghubun)
Deception may happen due to the ignorance of the
buyer as to the true price of the commodity.
Types of Gubun: It can be of two types:
- Slight deception like buying a thing 10% more than
its market price.(The contract is valid)
- Serious deception: If the deception is serious, the
contract can be invalidated on that ground.
- To the Hanafis, Ghubun alone does not entitle the
cheated party to cancel the contract. However, if
ghubun is accompanied by Taghrir (wrong
description of sold item) then the buyer has the
option to cancel the contract.
- exceptions with regard to properties owned by
minors, lunatics, and prodigals .
To the Hanbalis the existence of ghubun
whether accompanied by taghrir or not affects
the validity of the contract. The buyer according
to them has the right to cancel the contract in
case of Talaqqi al-rukban, Najash or where he is
ignorant of the actual price and relied on the
honesty of the seller.
To the Shafiis, a person cheated, should have
known the actual price, or should have asked
those who had experience. The Shafiis attribute
this to the fault of the party cheated. The
Shafiis, therefore, do not give the option to
rescind the contract.
The following are some examples of deceptions
that are specifically prohibited by the Prophet
Najash: It refers to an increase in price by a third
party who is not actually buying, but wants to
encourage others to offer a higher price.
Talqi al- Rukban or meeting a seller on his way
to the town and buying from him the commodity
before the seller has ever a chance to reach the
market and to know the actual price.
Conditions refer to: “Those attributes which if are
absent the contract will not come into existence”.
Types of Conditions
- Conditions are divided into two main divisions:
- Conditions put by the Shariah without
which a contract cannot be realised. For instance
conditions related to the capacity of the parties .
-Conditions that may be put by the parties in
order to achieve certain specific objectives. For
example if the borrower travel, then I will pay for
Conditions Imposed by Shari‟ah
-These conditions are divided into four types.
-Conditions for concluding the contract.
-Contracts for the validity of the contract.
-Conditions for the execution of the contract
-Conditions for a contract to be binding.
These conditions are sub-divided into two.
1- General conditions are those
conditions, which should be fulfilled in all
contracts. (Ex:conditions for
offer, acceptance, and conditions with regard
to the capacity and the subject matter of the
2- Specific conditions that is necessary for
certain contracts. For example the physical
transfer of a property is a condition in
contracts of gift, borrowing, deposit, loan and
mortgage. In the absence of this condition, the
contract cannot be concluded.
These are those conditions which if not present
the contract would be void.
For example, a contract should be free from
elements of ignorance such as ignorance about
the price or the type of currency, similarly, a
contract entered into by duress, or contracts
involving fraud are not valid.
There are two conditions:
1- Ownership over a thing, guardianship, or agency.
2- That a third party‟s right is not involved.
For example, a person who suffers from the death
sickness is not allowed to interfere in more than
1/3 of his property, but with the permission of
heirs. Similarly, an insolvent person is not allowed
to sell his property in a way that would harm the
All contracts are binding, unless there are
options. The presence of options makes a
contract non-binding until the options are
exercised or the contracts are approved.
- The parties are free to choose a particular form
of contract. However, they are not free to add
new effects to a contract. The effects and
consequences that a certain contract may lead to
are already determined by the Shari‟ah. These
effects and consequences result and apply
- However, the parties may add conditions that are
harmonious with the nature of a contract. For
instance, a seller may require of the buyer a
down payment in return for a stated delay in the
payment of the price of the goods.
According to the view of fuqahah conditions put by
the parties can either be valid or void.
- Valid Conditions
Valid conditions are sub-divided into three
-The first group: includes those conditions which
confirm the effects already attributed by the Shari‟ah
to a certain contract.
Ex: a condition in a contract of sale stipulating that
the object of sale be delivered by the buyer is valid.
The seller may insist that he shall keep the sold item
until total payment is made.
These conditions do not change the effect of a sale
contract and do not impose additional obligations on
either of the contracting parties.
-The second category: refers to those conditions
which agree with the effect and purpose of a
contract, to which they are added. For example
the seller may require pledge, or a guarantor if
the buyer who wants to pay the price later.
-The third category: includes those conditions
which are customarily accepted. For example
the purchaser may require certain services of
little importance that according to customs a
seller may provide while concluding a contract
of sale. (like guarantee period during which the
sold item would be repaired.
- Void Conditions
Void conditions are those conditions that may
favor one of the parties at the expense of
another or conditions that may lead to usury.
Thus it is not allowed that a certain contract may
comprise two agreements one of which is a
condition for the other. For example, a person is
not allowed to sell an item on the condition that
the purchaser sells him something else to
replace it, or buys some other article, or rents
him the article sold, or lend him either its price
or some other sum.
or when a loan is given on the condition that
the borrower should buy a certain item from
Such conditions are null and void whether
they are imposed by the seller or the buyer.
1- Classification According to Characteristics
Looking at its characteristics, contracts may be
into 2 types, namely valid contract and invalid
A valid contract is a contract, when all its pillars are
correct and all the conditions are met.
A void contract is a contract when one of the pillars
or a condition is missing.
The Hanafies, on the other hand, divide contracts
into valid (sahih), viodable (fasid) and void (batil)
Sahih (Valid) Bathil (Void) Fasid(Irregular)
A valid contract is a contract which is legal in its
asl as well as wasf. Asl refers to the essential
elements which according to the Hanafies are
offer and acceptance and all the conditions
required concerning the parties and the subject
matter. Wasf refers to external attributes that
are not in the essence of a contract but falls
A contract is voidable or irregular (fasid) when
its essential elements are present and all the
essential conditions are complete but it contains
a prohibited attribute. EX: when a contract
contains elements of usury or when a contract
suffers from gharar such as when a certain
property is sold for an unknown price.
Similarly, a contract is considered voidable when
it is made with a defective consent such as a
contract made by a person under duress. A
contract is also voidable if the parties agree on
All these conditions render a particular contract
voidable or irregular.
Voidable contracts do not have legal effects.
However, the contract could be corrected when
the prohibited attributes are removed.
Invalid or void contract, according to the
Hanafies, is a contract where one of the pillars
or their conditions is defective.
for example: the sale of a person who has no
competence, or when a contract is concluded
for an unlawful purpose or the sale of
invaluable property or when the subject matter
is not in existence.
These contracts are prohibited contracts and
as such do not have any legal effect.
2- Classification According to the Purpose and
Based on their objectives and effects, contracts
are divided into seven categories:
1- „Uqud al-Tamlikat(aquiring ownership): These are
contracts entered into for the purpose of obtaining
ownership over a thing or its usufruct. Ex: contract of
sale, rent, gift, waqf.
2- „Uqud al-Isqatat(waiving rights): These are contracts
entered into for the purpose of waiving rights. Ex: a
creditor may release his debtor from the debt or waive
his right to demand the loan.
3- „Uqud al-Itlaqaat(authorization): These are contracts
entered into for the purpose of authorization. Ex:
contract of guardianship or agency.
4- Uqud al-Taqaiydat(imposing restraints): These
are contracts whereby a person could be
prevented from exercising certain rights.
Ex:, insane, minor bankrupt persons could be
prevented from dealing with their properties.
5- Uqud al-Tawthiqat(providing guarantee): These
contracts are intended for security. Ex: the
contracts of kafalah, hawalah, and pledge.
6- „Uqud al-Ishtirak(partnership): This group
includes contracts of partnership such as
7- „Uqudd al-Hifz(safekeeping property): These
contracts are meant for the protection and safe-
keeping of properties such as the contract of
3- Classification According to the Time of
Contracts are divided based on the time when they
would produce their legal effects after their
conclusion into three types.
A- Al-„aqd al-Munjaz contract that give immediate
effect: These are contracts, which produce their
legal consequences the moment they are
concluded. Ex: the contracts of sale, pledge, gift. If
they are postponed the intended consequences are
not attained immediately and it is not allowed. In a
sale contract, for example, it is not allowed to say
“I sell my house to you next month”. This offer
even if accepted is not valid as a sale contract
should result in the immediate transfer of
ownership to the purchaser.
◦ B-Al-„aqd al-Mudhaf Li al-Mustaqbalb contract the
effect of which could be postponed: These are
contracts, which may result in producing immediate
legal effects or the effects of which could be
deferred to a future date. Ex: the contracts of
rent, kafalah, hawalah, wakalah, and waqf .
◦ For example, in a contract of kafalah it is possible
for a guarantor to say to the creditor that if the
debtor could not settle the debt within two months
then he (the guarantor) would settle it. At the expiry
of the stipulated period the contract of kafalah
C- Al-„aqd al-Mu„allaq „ala al-Shart contract the
effects of wich could depend on conditions: These
are contingent contracts that may depend on the
fulfilment of certain conditions. Ex: the contracts of
agency (wakalah), bequest (wasiyah), kafalah, and
hawalah. Contingent contracts could only produce
their legal effects when certain conditions that are
put by the parties are met. For example, when A tells
B: “If I travel, you will become my agent”. B can only
become an agent when A travels.
4-Classification based on Nominated and non-
Contracts are also divided according to whether they
are given a certain name by Shari‟ah or not. For
instance, the contracts of
Mudharabah, Musharakah, Wadia‟h, Kafalah, are
grouped under the nominated contracts. On the
other hand, contracts that are later introduced such
as Istisna‟, bay‟ al-wafa and Takaful are called non-
5- According to Physical or non-Physical
Contracts which need the physical
transfer/existence of a thing include the
contract of gift, borrowing, deposits, loan. In
these contracts the thing or the property
should physically be present and transferred.
In all other contracts the physical transfer of the
property is not necessary as long as all the
pillars of a contract are fulfilled.
Option is a right given to one or both parties to
either confirm or cancel a contract.
Options allow the parties a time to think over
the terms and conditions of the contract and to
make a choice that is the result of careful
thinking and deliberation.
The followings are some of the important
options that the contracting parties are entitled
to by law, or they can stipulate in their contract.
1- The Option of Sessions
This refers to an option given to both parties to
terminate a contract while the session still
continues and they are not yet separated. This
means that the contract is binding only after the
session ends and neither of the parties rejects
the contract during the session. The option
ceases to exist if the session ends. The option is
recognised only by the Shafis and the Hanbalis.
2- The Option of Condition:
Either or both parties to a contract may insert a
condition into the contract giving them an
option, within a fixed period, to either cancel or
ratify the contract
This option is established by a hadith of the
Prophet p.b.u.h. The reason for this option
could be that some people may want to get the
advice of an expert. Thus they may put this
condition or may seek a longer period.
Consulting others, or thinking or reflecting over
the thing may need more time.
For examples, when a buyer tells a seller: I buy
this thing on the condition that I may have the
option for three days. The option of condition
could be exercised for three days or the
determination of the period could be left to the
The option of condition gives the other
parties the right to either confirm or cancel
the contract within a certain period. If the
period expires and the contract is not
cancelled, the parties lose the option and the
contract is confirmed and binding.
To the Hanafis and the Malikis the ownership
is not transferred to the buyer. To the Shafiis
and Hanbalis the ownership is transferred to
the buyer. In case of death the right of option
is not inherited according to the Hanafis.
However, according to Malikis and Shafiis the
right could be inherited.
3- The Option of Defect:
The option of defect gives the buyer the right to
cancel the contract if he discovers, upon
transfer of possession of the thing, a defect that
would reduce or diminish the value of the thing.
- The defect should have been present in the
object before the contract was concluded.
-The defect was not disclosed during the session
of the contract.
- The defect should be of a type that would
decrease the value of the object.
All schools of Fiqh agree that the option of
defect could be inherited as this right goes with
4- The Option of Determination
The option of determination refers to the right of the
purchaser to select from among three things, the item
which he would buy.
The option of determination is applicable to contracts
where the parties agree to conclude the contract but
the buyer has not decided on the choice of the object
during the session of the contract.
The option is only recognized by the Hanafis and the
Malikis. The Shafiis and the Hanbalis do not recognize
the option of determination. They argue that if the
object of the contract is not sufficiently determined.
Then the contract does not conform to the basic
conditions laid down for the subject matter
1-The option could only be exercised with regard to
2- The objects should be of different qualities and
prices. If they are of the same quality and
prices, then the option has no meaning. The price
of all three items should be known.
3- That the period in which the option is exercised
should be ascertained.
Effects of the option of determination: The option
of determination does not entitle the parties to a
cancellation of the contract. When the buyer only
puts the option of determination, the contract is
binding on him. He can only select from amongst
the three different items.
5- The Option of Sight or Inspection
Refers to the right of the buyer, who has not seen
the object, to confirm or cancel the contract
after inspection. The reason for this option is
that the buyer has not seen the object.
However, if he has seen the object, the right
could not be established to him.
The Hanafis, Malikis, Hanbalis, argue for this
right while the Shafiis argue that a contract in
which the object is not present is not valid as it
involves gharar .”
Generally, all contracts may come to an end by
cancellation or by the death of one of the parties.
1- By Cancellation
A- When conditions are not met. Ex: when the party is not
competent, or when an unspecified thing is sold.
B- A contract can also be cancelled through the exercise
C- By mutual agreement between the parties -iqala.
D- Cancellation due to frustration where it is
impossible, for one of the parties, due to natural
causes, to perform a contract. For e.g. when the subject
matter of a contract is destroyed.
E- When the period for which the contract is made
ends, or when the purpose is achieved. Ex: when the
period for renting a house ends or the period for the
contract of employment ends, or when a guarantor
2- By the Death of the Parties
A- according to the Hanafis The contract of lease or
Ijara, comes to an end when either of the parties
, Other schools do not consider death as one of the
ground that may terminate the contract of ijarah.
B- Pledge contract. The heirs of the deceased pledgor
can settle the debt of the pledgee and release the
pledged property which would be divided among
C- contract of guarantee for the person is terminated
by the death of either the guaranteed person or the
D- Contracts of sharikah- partnership- and wakalah-
agency- are not binding on the parties. These
contracts end with the death of one of the parties.