2. the essential elements of contracts
a. aqid - 2 parties of the contract
b. sighah - form of the contract (offer and acceptance)
c. maaqud alaih - subject matter and price
d. maqsad - purpose or effect of the contract
3. âą Al âAqd literally means tying tightly, as tying a rope
âą Al âAqd carries the meanings of covenant and fulfillment, as we read in the Quran,
surah al maidah verse 1:
O ye who believe! Fulfill (all) obligations. Lawful unto you (for food) are all four-
footed animals, with the exceptions named: but animals of the chase are forbidden
while ye are in the Sacred Precincts or in pilgrim grab: for Allah doth command
according to His Will and Plan.
4. âą The plural of word 'uqud above is mentioned in commanding the
faithful to keep their covenants. God the Most High also commands
the faithful to keep their promises and covenants in Al Quran surah
Al Isra' verse 34:
âą In another verse of Quran (An Nahl verse 91), we read Allah's
command to the faithful to keep the obligations, which He had
imposed on them when they embraced belief:
5. * In Hadith ibn 'Abbas, commenting on a Quranic verse,
we read that 'aqd means covenant, agreement and
faith. In Arabic usage, we read that a man cannot tie
('aqd) a rope to mean he is too poor and feeble to do
anything.
* Contract also means an engagement and agreement
between two persons in a legally accepted, impactful
and binding manner such a proposal made by one
parties and accepted by other party in a way which has
an impact on the subject matter of the contract.
6. *Husein al Nuri defined, as the expression of exchange between two
confirming wills in an aim to have a legal impact of a financial nature.
*The act of selling is a contract between the seller and the purchaser
in which the seller takes it upon himself to transfer to the buyer the
ownership of something or some other financial right in return for a
monetary price.
*The important thing is that there should be a legal impact ensuing
from the contract transaction. Inviting a friend to a meal, giving him
help or promising him a reward are convention and not contract, as
they do not have a legal effect.
7. ïThe word aqad or contract in Arabic language
means tying tightly, as in tying a rope. The word
aqad carries the meanings of COVENANT and
FULFILLMENT.
ïCovenant refers to formal agreement that is legally binding.
ïFulfilment related to completion between both parties
satisfactions.
8. Al-Aqad (concluded bargain) is the
two parties taking upon
themselves and undertaking to do
something. It is composed of the
combination of an offer (Al-Ijab)
and an acceptance (Al-Qabul).
Al-Aqad (concluded bargain) is the
two parties taking upon
themselves and undertaking to do
something. It is composed of the
combination of an offer (Al-Ijab)
and an acceptance (Al-Qabul).
9. (The making of Al-Aqad) is
connecting, in a legal manner,
oneâs offer and acceptance with
the other, in a way which will be
clear evidence of being mutually
connected
(The making of Al-Aqad) is
connecting, in a legal manner,
oneâs offer and acceptance with
the other, in a way which will be
clear evidence of being mutually
connected
10. i. Ownership (al-Tamlikat)
a) Exchange (Uqud Al-Muaâawadhat)
b) Charity (Uqud Al-Tabarruâat)
ii. Security (al-Tauthiqat)
iii. Partnership (Al-Ishtirak)
iv. Safe Custody (Al Hifz)
v. Release (Al-Isqatat)
vi. Permission (Al-Itlaqat)
vii. Restriction (Al-Taqyidat)
11. 1.OWNERSHIP (AL-TAMLIKAT)
The purpose of this aqad is to acquire ownership or right to benefit of
a property. Can be divided into two:
*Exchange (Uqud Al-Muâawadhat)
If the acquiring of ownership is by exchange such as sale, hire, money
changing, compromise, partition, sale by order and the like, where
there is an exchange between the two parties.
*Charity (Uqud Al-Tabarruâat)
If ownership of a property is acquired without an exchange such as
gift, endowment, benevolent loan (Al-Qard Hasan) and assignment of
debt. Sometimes a contract can be a contract of charity at the
beginning and then the receiving party is required to give an
exchange. Examples of such a contract are guaranty requested by the
debtor and gift with the condition of an exchange.
12. 2.SECURITY (AL-THAUTIQAT)
These contracts are meant to secure debts for their owners and
guarantee creditors of debts owing to them. These are guaranty,
assignment of debt and mortgage.
3.PARTNERSHIP (AL-ISHTIRAK)
These aqad meant for sharing in projects and profits. Among them is
Al-Mudharabah.
4.SAFE CUSTODY (AL-HIFZ)
The purpose of the aqad is for keeping a property safe and having
some form of an agency.
13. 5.RELEASE (AL-ISQATAT)
These relate to the dropping of rights against others with or without
exchange. If the release is without compensation from the other party
then the release is absolute release such as repudiation, release from
debt and withdrawal from the right to pre-emption. If the release is
with compensation from the other party then it is release with
exchange.
6.PERMISSION (AL-ITLIQAT)
These are for giving free hands to persons in their work such as
agency, appointment of governors and judges, giving a person who is
dispossessed of the power of administration permission to administer
his property or giving permission to a minor to carry on trade and
appointment of a nominee to take care of oneâs children after his
death.
14. 7.RESTRICTION (AL-TAQDIYAT)
Contracts in this group are those preventing the performance of
certain functions. Examples of this aqad are dismissal of governors,
judges and supervisors or endowment, termination of the
appointment of nominees and agents and dispossession of
administration of property because of insanity, mental disorder,
prodigality and infancy.
15. The elements of contracts are:
a) aqid - 2 parties of contract
b) Sighah â form of the contract (offer and
acceptance)
c) maaqud alaih âsubject matter and price
d) maqsad â purpose or effect of the
contract
16. The contract (Al-Aqad) in 4 general pillars; these are:
*Tharafayil 'Aqdi (Agents of Contract)
*Maudu'il 'Aqdi (Objective of Contract)
*Mahalul 'Aqdi (Object of Contract/Subject matter)
*Ijab & Qabul (Offer and Acceptance)
19. The person who making Qabul or accepting
AQIDAN (AL-BAâI)-SELLER
AQIDAN (AL-MUSHTARI)-BUYER
The person who making Ijab or offering
20. â«CAPACITY (AHLIYYAH);
oAhliyyah al-Wujub (capacity for acquisition of rights)
oAhliyyah al-Adaâ (capacity for execution of rights)
â«IMPEDIMENTS TO CAPACITY (MAWANIâ AL-
AHLIYYAH);
oSamawiyyah (Natural causes of impediments)
oMuktasabah (Acquired causes of impediments)
THE CONDITIONS OF AL-BAâI & AL-MUSHTARI
(AQIDAN)
THE CONDITIONS OF AL-BAâI & AL-MUSHTARI
(AQIDAN)
21.
22. Ahliyyah al-Wujub al-Kamilah, or complete capacity for acquisition, is found in a
human being after his birth and before the age of puberty. This makes one
eligible for the acquisition of all kinds of rights and obligations. In other words, a
child possess complete capacity for acquisition of rights and obligation but until
a child attains the age of legal puberty, he lacks the capacity for execution.
Though he cannot meet them personally due to the absence of the capacity for
execution, the lawgiver allows his guardian (Wali) to stand in his place and
represent him. The child is also liable for any damage caused to otherâs property.
Ahliyyah al-Wujub al-Kamilah
23. It is established for a fetus (Janin). Deficient capacity implies that only
some rights are established for the fetus and no obligations are imposed
on it. The reason is that fetus is considered part of the mother in some
respect.
By virtue of this deficient capacity, the fetus acquires certain
rights; freedom from slavery, inheritance, bequest and parentage. On
the other hand, the fetus cannot be held liable for the satisfaction of
rights owed to others. Thus, obligations and duties are not established
against fetus, because there is no question of its performance.
Ahliyyah al-Wujub al-Naqisah
24.
25. Complete capacity is established for a human being when he/she attains full mental development and
acquires the ability to judge. This state is associated with the external standard of puberty. The physical
signs indicating the attainment of puberty are the commencement of wet-dreams in a male, and
menstruation in a female. In the absence of this sign, puberty is presumed at the age of fifteen in both
male and female according to Abu Hanifah.
In addition to puberty, the possession of Rushd (discretion, maturity of action) is stipulated
as well. The Qurâanic sanction, to this effect, is as follows:
âMake trial of orphans until they reach the age of marriage; if then you find sound judgment
in them, release their property to them; but consume it not wastefully.â (4:6)
Ahliyyah al-Adaâ al-Kamilah
26. Ahliyyah al-Ada al-Naqisah is assigned to a child who possess some
discretion or to a Maâtuh who has attained puberty, but yet lacks
complete mental development. The person who possesses deficient
capacity cannot be held criminally liable.
Hanafi School of law categories deficient capacity for execution into
three categories;
27. 1.Purely beneficial transactions
*The transactions falling under this category are the acceptance of a
gift of Sadaqah (charity). These are allowed for a person who has
attained puberty but who can discriminate and has been permitted by
his guardian (Wali) to exercise such acceptance.
2.Purely harmful transactions
*The granting of divorce, manummising (âItq), charity (Sadaqah), loan
(Qard) and gift (Hibah) as well as making a trust (Waqf) and bequest
(Wasiyyah) are considered transactions resulting in pure financial loss.
3.Transaction vacillating between profit and loss
*Sale, hire partnership and other such commercial transactions are
considered valid provided that the transactions are ratified by the
guardian and also produce a significant result for the parties
concerned.
29. Minority (Sighar)
*It is the stage of a human being after the birth and before the age
of puberty. A minor follows his parents or one of them in the
matters of Islam. Islamic jurists maintain that a minor is liable for
compensation for property destroyed by him, for goods and
services bought, for maintenance of relatives and also for zakat
according to some.
*Hanafi School of Thought makes an exception in the case of a Sabi
Mumayyiz and it is a matter of controversy whether the Khitab of
Targhih or recommendations is addressed to him. He is not liable
for punishments, but financial transactions undertaken by him are
valid in certain cases.
30. Insanity (Junun)
*Junun has no effect on Ahliyyah al Wujub, because rights and
obligation are established for and against an insane person, who is
deemed liable for Itlaf (destruction of property), payment of Diyyah
and the like.
*The rationale (Manat) for attribution of such capacity is humanity
(Insaniyyah) and the insane is a human being.
*Insanity, however, completely negates the Ahliyyah al-Ada because
of lack of reason and intellect. An insane person, therefore, has no
liability for worship, or punishment, and all his transactions are void.
31. Idiocy (âAtah)
*It is a condition in which a person at times speaks like a sane and
normal person while at others he is like a mad man. It is also
described as a state in which a grown-up has the mind of a child. The
capacity of an idiot is deemed equivalent to that of a Sabi Mumayyiz
who can be permitted by his guardian to undertake some
transactions.
32. Sleep and Fainting Fits
*Sleep and fainting fits have relevancy for the purpose of âIbadah
(worship) as well as for crimes and torts. They do not affect Ahliyyah
al-Wujub , because the human attribute is intact. The personâs
capacity to understand things is temporarily affected thus prevented
from normal functioning.
*There is no liability for punishments and transactions against the
person in a sleep or fainting fit. If a person while sleeping falls on a
child and kills it no liability will be imposed against him except
compensation under the law of tort according to the governing
principle of Qatil be al-Sabah.
33. Forgetfulness
*A person is not very careful about things though he has full
knowledge of them, as distinguished from sleep and fainting fits in
which such knowledge is lacking. Forgetfulness does not affect
Ahliyyah al-Wujub nor does it affect the capacity for execution.
*The legal communication (Khitab), however, becomes operative as
soon as the person remembers. Transactions undertaken by such a
person are valid and enforceable against him.
34. Death Illness (Marad al-Maut)
*Maradul Maut has no effect on the capacity for acquisition or on the
capacity for execution and it is, in fact, a condition of Taklif, because it
is the capacity to perform and act that is affected here and not the
capacity to understand it.
35. Muktasabah or acquired causes are those that are created by
man in which human will and choice is affected. Islamic
jurists categorized these causes into several types, all of
which have effect on the capacity for acquisition and
execution. Causes of Muktasabah;
*1. Interdiction
*2. Jest (Hazl)
*3. Folly (Safah)
*4. Duress (Ikrah)
36. *The condition of compensation or price; the
price must be an existing legitimate privately
owned item.
*The price is known beyond dispute.
*The value of an object is its market price.
*In debt; may come into agreement, coercion,
bail, security deposit, borrowing, etc.
MAAQUDALAIH (AL-THAMAN)-
PRICE
37. 1. Specification of the price and object
of sale
2. Rulings related to the price and object of
sale
38. *In the most common usage, the object of the sale becomes uniquely
identified by specification, while the price is most often not uniquely
identified by specification in a contract. This is the general rule for
those two items, but it can change under specific circumstances.
*For example, items that cannot be uniquely identified may become
objects of sale, such as those in a forward sale, and items that can be
uniquely identified can become a price such as the price in such a
forward contract, if it is a uniquely identifiable object.
39. *A condition for the conclusion of sale is that the object of sale be a
valued good with legitimate uses. This condition does not apply to
the price.
*A condition for the executability of a sale is that the object of sale be
in the possession of the seller.
*It is not valid to defer the delivery of the price in forward sales, while
the deferment of the object of sale is necessary.
40. *The cost of delivery of the price is borne by the buyer,
and the cost of delivery of the object of sale is borne by the seller.
*A sale without naming the price is defective invalid (fasid); whereas
not naming the object of sale, as in saying: âI sold you for ten coinsâ,
voids the contract that is thus not concluded.
*If the object of sale perishes after the exchange of object and price,
the sale may not be reversed. However, the perishing of the price
after the exchange does not prevent the sale from being
reversed.
41. *If the object of sale perishes prior to delivery, the sale is void.
However, if the price perishes prior to delivery, the sale is not void.
*The buyer may not re-sell movable merchandise before receiving it,
whereas the seller may use or sell the price before he receives it.
*The buyer must deliver the price before he has a right to receive the
object of sale, unless seller accepts otherwise.
42. ï¶Subject matter known as mahal al aqad or
al-mabiâ.
ï¶According to Islamic Jurisprudence, the
subject matter of a contract could be
corporeal property, as in granting, sale and
mortgage, privilege or benefit, as in rent or a
human being as in the marriage contract
which has as its subject the woman herself.
MAAQUDALAIH (AL-MABIâ)-
SUBJECT MATTER
44. ïŒIjab is the word first spoken and
confirmation.
ïŒQabul means consent and acceptance.
ï±IJAB ï±QABUL ï±SIGHAH
The contract is comfirmed by the coming
together of statements of two person.
SIGHAH-AQAD CONTRACT
45. *The reason of having âakadâ is to clarify & produce willingness
between both party who is in contract & knowing itâs implication.
*The pillars of a contract are expression of the matching between
positive proposal (ijab/confirmation) made by one contractor
and the acceptance of the other contractor (qabul).
46. The other conditions which are necessary for it to be legally
acceptable and impactful, these conditions are:
1. The existence of two properly and aptly qualified contractors. It is a
condition of a valid contract that the parties possess capacity. These
capacities are;
a. Wujub (rights)
b. 'Ada (performance, action)
2. A format (sighat).
The utterances expressing the wills of the two parties, showing the
purpose of contract and bringing it into existence after it had been a
hidden and unknown thing or intention.
47. 3. Subject matter.
*In principle, be something legal otherwise the contract is nugatory,
*It has to be specified and defined in way prevent ambiguity, and
*It has to be existent.
48. âą The valid contract is endorsable by shari'ah, which has an impact on life situations
in accordance with its strength, its pillars and characteristics are both sound and
free of defects and which does not contain any item which is prohibited by shari'ah.
âą Hanafi scholars define the correct contract as one which is legal in both its pillars
and its characteristics and also state that incorrect contract is of two divisions:
nugatory (which is illegal in both its origin and its characteristics) and corrupt
(which is legal in its origin but not in its characteristics).
âą The conditions which have to be met in a contract, namely conditions of en 'eqad
(confirmation), conditions of nafat (execution), conditions of lozum (obligation)
and conditions of sehah (correctness).
49. 1. Conditions of confirmation
- have to be met in a contract in order for it to be legal and correct.
They are of two kinds:
âą General conditions: which have to be met in each and every
contract, and they include: the existence of two contracting
parties, the format and the subject in addition to secondary
related conditions.
âą Particular conditions: which have to be met in certain situations
but not in all.
50. 2. Conditions of execution
âą The contractor should be in possession of the subject or at least able
to hand it over.
âą There should be no claim from (no right to) other people to the
subject of contract. The person who sells something which is the
property of someone else has to obtain the owned.
3. Conditions of obligation
âą The contract should be void of the element of choice or option. The
subject matter should be free from defects.
* Conditions of correctness - are the general conditions which have to
be met in each and every one of the three pillars of contract.
âą If one of these conditions is not met, the contract is considered
nugatory according to the majority of scholars, and corrupt according
to Hanafi jurisprudents.
51. Shariah requirements in the sighah
(offer and acceptance) :
a. written
b. verbal
c. action/signals
d. recording
52. *The formalities of Ijab are;
ïModes of offer (namat al-ijab)
ïTense of offer (sighah al-ijab)
ïCounter offer (ard al-muqabil)
ïRevocation of an offer (rujuan al-ijab)
ïTermination of an offer (butlan al-ijab)
53. Modes of offer (namat al-ijab)
An offer can be made in any of the following ways;
a) by words/oral; An offer can be made by words used for concluding a sale (Baiâ) by
the common usage and the custom of the place. Must expressed and understood in
the language of local people.
b) by writing; an offer could also be made by writing or deed which will have equal
legal effect as the one made verbally.
c) by gesture; an offer by gesture is valid if it is made by a person who is incapable of
making it either verbally or in writing. For examples, an offer made by a handicapped,
dumb, or deaf person.
d) by post, telegram, telex, fax, e-mail, etc; all these instruments convey offers made
by words and writings.
54. Tense of Offer (sighah al-ijab)
ï”An offer is generally made using past tense, but in some situations, an offer could
also be made in other tenses and manners.
ï”An offer may be made by the aorist tense in which if it indicates a present tense
then the sale is valid but if it indicates a future tense then the sale is invalid.
ï”In other words, an offer is valid and has a legal effect if it is not made by using the
future or imperative tense. A sale is not concluded by words in the future tense.
Counter Offer (ard al-muqabil)
ï”In order to create a building agreement, the offer and acceptance must match.
ï”The offeree must accept all the terms of the offer.
ï”If in his reply to an offer, the offeree introduces or poses a new term(s) of the offer,
then that reply cannot amount to an acceptance. Instead, the reply is treated as an
offer itself, which can be accepted or rejected.
55. Revocation of offer
ï”According to the Hanafi and Hanbali, the offeror has the right to revoke the offer at
any time before the acceptance is made. Although this right theoretically exists also in
the Shafie. It is doubtful whether the offeror has the time to exercise it. This is
because the Shafie is requiring the acceptance to be made immediately after the offer
is made, otherwise the offer will cease to exist.
ï”According to the Maliki, the offeror is bound by his offer until the meeting breaks
up. Thus if he revoked his offer and the offeree afterwards accepts before the meeting
breaks up, the contract would be concluded.
ï”In the Hanafi, there are two views on the matter. According to one view, the
revocation is not effective until it is communicated. Thus if the seller say, âI have sold
to you this for so muchâ, and added, âI have revoked my offerâ and the buyer without
hearing the revocation says, âI have boughtâ, the sale is concluded.
ï”According to the other view, the offeror can revoke his offer whether or not the
other party knew about the revocation.
56. Termination of an offer (butlan al-ijab)
ï”An offer could be terminated and will not have any legal effect under the
following circumstances;
ï¶Revocation
ï¶Rejection by the offeree
ï¶Counter offer
ï¶Absence of acceptance
ï¶Death
ï¶Lapse of time
57. *The formalities of qabul are;
ïModes of acceptance (namat al Qabul)
ïTense of acceptance (sighah al-Qabul)
ïCommunication of offer and acceptance
(Ittisal)
58. Modes of acceptance (namat al Qabul)
An acceptance can be made in any of the following ways;
oral acceptance
by writing
by gesture
by delivery
by payment
by performance or conduct
letter of post
by telex, e-mail, telegrams, phone and fax
59. Tense of acceptance (sighah al-qabul)
For a valid contract, an acceptance must
either be in the past or present tense. In
no situation, can an acceptance generally
uses past tense.
60. Communication of Offer and Acceptance (Ittisal)
ïThe Fiqh under the Hanafi School of Thought, on the assumption that the parties are
contracting orally and in the presence of each other, makes it a condition for the
conclusion of the contract that the offeree must hear the offer and the offeror must
hear the acceptance.
ïThe juristic basis for the necessity of this mutual hearing is not clear.
ïAccording to one of the Fiqh, there can be no consent without such mutual hearing.
ïSome of the school of Fiqh maintain that, the necessary connection between the offer
and the acceptance will not take place unless each party hears what was said by the
others. It has even been suggested that if the parties did not hear each other there
will be no unity of the meeting place.
ïThe Shafie maintains that it is not necessary that the offeree shall hear the offer or
the offeror shall hear the acceptance provided that both the offer and Qabul are made
in a voice loud enough that it will normally be heard by those present in the meeting
place.
ïIt is not clear from the text of the Fiqh of the Hanbali and Maliki, whether the offer
and acceptance should be communicated.
61. the types of khiyar :
a. Khiyar Majlis
b. Khiyar Syarat
c. Khiyar âAib
d. Khiyar Rukyah
e. Khiyar Taâayin
f. Khiyar Naqdi
62. ï§A place where both party performing sighah.
ï§Is a muamalat contract between two or more party perform in a
contract or in a place where the contract is valid
ï§4 condition in fulfilling the contract ceremony:
ï§Both party must be at the ceremony
ï§The tenor must be indicated clearly (written contract)
ï§Not to have a party who show unwillingness during contract
ï§The 1st
party must not withdraw the agreement before the 2nd
party accept the offer.
63. Khiyar ; Option in aqad between seller and buyer
whether to accept or reject the aqad.
Khiyar ; Option in aqad between seller and buyer
whether to accept or reject the aqad.
DEFINE KHIYARDEFINE KHIYAR
64. *A khiyar (option) that constitutes a condition stipulated in the contract.
This option confers on the parties to the contract the right to proceed withÂ
contract by confirming it OR to cancel it, all within a pre-agreed period of
time.
*In other words, the parties have the option of studying their respective
positions in the contract in order to come out with a final decision of either
confirming or rejecting it.
*This option can be attached to any commutative contract. A contract that
involves the exchange of counter values, and which is cancellable at any
later date.
*In general, the option duration can vary in length according to the
agreement and designation of the two contracting parties at the contract
date.
*During the option duration the buyer has the right to effectuate the deal by
paying the price and taking delivery of the underlying object of sale.
*There are two reason of important Khiyar. Firstly, to make sure the parties
of contract are willing to proceed or not the contract. Secondly, to protect
the benefit for both parties.
65. A term used to express an option
within a certain period after the
conclusion of a bargain during which
either of the parties may cancel it
66. a. Khiyar Majlis
b. Khiyar Syarat
c. Khiyar âAib
d. Khiyar Rukyah
e. Khiyar Taâayin
f. Khiyar Naqdi
67. ïOption during the meeting
ïThat each one of the parties has the right
to confirm or cancel the contract in the
negotiation stage of the contracy, as long as
the two parties are still there and have not
left.
ïAlternatively, one of the two parties gives
the other the right of choice, and he
chooses to confirm the contract. Thus the
option of the meeting does not make the
contract binding until the two parties leave
or to give up the right of choice.
68. *The option of the meeting is confirmed in every moâawadah
(mutual commitment) contact like sale, postponed payment
grant and reconciliation where mutual commitment is involved.
*Thus it is evident that the option of the meeting is not applicable
in contracts which do not involve mutual commitment like
donation, usefulness and non-committing contracts and
contracts which involves forced acquisition and licensing
contracts.
69. *The option of the meeting does not apply also in the following
contracts: nikah (marriage), khulâ (divorce agreement where the
wife exempts the husband from paying alimony and other
expenses or giving their additional payment), hibah, shirkah,
rahn, mosaqat (agricultural partnership), and Al-Qard.
70. ïIbn Omar reports that the Prophet (PBUH) said, âIf two men
conduct a sale, each one of them has the right of choice until
they part or until one of them gives the choice to the other if
one of them gives the right of choice to the other and they
conclude the sale, the sale is then confirmed.â This hadith is
narrated by al-Bokhari and Muslim
ïAmr ibn Shoâaib reports from his fatherâs report of his
grandfather that the Prophet (PBUH) said, âThe two parties
have the choice until they part.â The hadith is narrated by
Hasan (approved).
71. ïThe option of condition
ïBoth or one of the parties or another person has
the choice of either confirming or cancelling the
contract during a set period of time.
ïAn example of this is when a buyer says to the
seller âI bought this merchandise from you on
condition that I have the choice for one day, or
three days.â This contract includes sale and
condition.
ïApplicable to binding, necessary and committing
contract which are cancellable even it was
committing to one party e.g. sale, rent partnership,
warranty.
72. The condition of option here is confirmed contrary to the tradition of
the Prophet (PBUH) who interdicted joining sale and condition in one
contract; however, jurisprudents admitted such a sale on the basis of
approval for two reasons;
ïFIRST;
The Prophet (PBUH) himself had accepted and sanctioned it. It is
reported that Habban ibn Monqidh ibn Amr was a feeble man who had
been injured badly in the head. The Prophet (PBUH) gave him the choice
in purchase for three days. And as he found difficulty in speaking, the
Prophet (PBUH) told him to say in conducting a sale.
ïSECOND;
Some people may not be clever in trading and may need to seek advice
from an expert by using the condition of option. This is to make it
possible for him to cancel the contract if he think it fit to do so. The
option of condition is also called the option of tarawwi (deliberation or
reflection) because it involves thinking over things and consulting
others.
73. ïOption of defect.
ïThe option a party has when he discovers in the
subject something which reduces its natural value
or which makes it fall short of requirements.
ïIt makes clear that if anything appears in the
subject of the contract which does not match its
original use and which decreases its market value
or makes it unfit to meet the requirements
expected of it, then the party has the option to
defect.
ïAnother name for Khiyar al-aib is Khiyar al-naqisah
(option of fault or reduction).
74. ïIf anything appears in the subject of the contract which does
not match its original use or decreases its conventional market
value, or makes it unfit to meet requirements expected of it,
then the buyer have the right to exercise option of defect, as
freedom from defects is the right of the buyer given in any
commercial transactions.
ïApplicability of the right of Khiyar âAib; are contract of sale,
contract of Ijarah (hire), contract of exchange of currency, Mahr
payment, and Sulh (reconciliation) involving agreement or
setting blood money, that is all contracts whose purpose is the
exchange of counter values.
75. 1. The defect have existed in the subject matter prior to the time
of sale or it occurs before the delivery and while it is still in the
hands of the seller.
2. The defect which existed in the subject matter decreases its
value or renders it unfit for the purpose to which it is intended.
3. The buyer must be unaware of the defect at the time of
contracting and taking the subject matter into his possession. If
the seller indicates that the defect is so manifestly obvious so
as not to escape defection and the buyer accepted it without
protest, he is considered to have waived his right.
4. The absence of stipulation for waiving or releasing the seller
from liability for the defect in the subject matter
76. 1. When the buyer, after he has known the defect in the
subject matter, insists or continues on buying the thing.
2. When the buyer knew the defect in the subject matter
but transfers or gives it to other persons as a gift or as a
selling thing. He loses his right of option of defect.
3. When the seller sells a thing with a condition that he
shall not be made liable for any defect in the subject
matter and the buyer agreed upon that condition. The
buyer loss his right of option of defect.
4. If the defect is slight and if it does not reduce the value
of the object, and if it is conventional to overlook it,
then the party cannot use it as a pretext to return the
sold object
5. If the new defect occurs in the subject matter while it is
in the possession of the buyer and he discovers that the
object had an old defect while it was in the possession
of the seller, then the buyer can claim the reduction of
the value but he cannot return the object.
77. ïThe option of viewing.
ïA person who enters into a contract dealing
with a certain object â which he has not seen â
has the right of cancelling or confirming the
contract upon selling the object.
ïThis implies that a party has the option of
viewing based on two conditions:
FIRST;Â The subject of the contract should be
a specified thing like a house or a car.
SECOND;Â The party should not have seen the
thing before. If he has, then he does not have
the option.
78. *To avoid injustice that may lead to ignorance and dispute
among parties.
*To protect the interest (istihsan) of Muslim and to prevent any
disputes among them.
*To avoid unfairness when they have no experience or ability to
market place to buy things they have not seen.
79. ïOption of determination or selection.
ïThe parties have the option to choose the object of sale
out of multiple varieties of a given article.
ïThe purpose of this Khiyar is to give wide choice to the
buyer to choose and the seller to stipulate the subject
matter of the contract.
ïFor example the parties may purchase one out of three
varieties of commodities of different qualities (excellent,
average and poor) without specifying which particular
varieties would be purchased on the condition that those
the subject matter from the same class but different
qualities and different price.
ïThis option only applicable to the parties of the contract
only in a stipulated time.
80. *This option cannot be stipulated by the third parties.
*However, some scholar in the opinion that this option only
applicable to the buyer only. Duration of this option according
to the nature of the transaction.
*Imam Abu Hanifa maintain that the period of this khiyar At-
Taâyin same as khiyar al syakk which is 3 days. However
duration of option must be precisely defined by contracting
parties.
81. ïKhiyar that stated the condition
on when the buyer will not pay the
full payment of the total price in
certain time period. Within 3 days,
the agreement will be forfeit.