Define
contract? What are the ingredients of a valid contract in Islamic law? (1994,
1999, 2000, 2003, 2004/A, 2005/A, 2006/A)Q. Discuss the ingredients of a
contract under the Islamic civil law. (2002, 2003/S)Q. Define contract. What
are the essentials of valid contract in Islamic law? (2007/A)
1. Introduction:- Contract law ensures the parties to private agreements that any promises they make will be enforceable through the machinery of the state. Islam attaches great importance to keeping of promise. In case promises are not kept faithfully it will result in great confusion and mistrust.
2. Meaning of contract:- The corresponding Arabic word for contract is “Adq” which has its both
legal and literal meaning.
(I) Literal meaning:Literally it means conjunction, tie, knot.”
(II) Legal meaning:- (i) The union of the declaration of one of the
contracting parties with that of the other in a legal manner, the result of which is reflected in their subject
matter.”(ii) “A contract or adq is
any statement or word that has the effect of legally binding a person to fulfill an obligation or to
perform a duty.”
3. Importance of contract according to Quran and Sunnah
(I) The Holy Quran says:- “And keep the covenant. Lo! Of the covenant
it will be asked”. (Al-Isra: 34) “O
Ye who believe fulfill your agreements” (Al-Maidah: 1) “Such as keep the pact of Allah, and break not the covenant”
(Ar-Rad: 20) The Sunnah of Holy
Prophet (Peace be Upon Him) shows the importance of keeping the agreements.He says:- “He who has no respect for keeping promises, does not
possess deen.”
4. Formation of contract:-The formation of contract does not require any formality under Islamic
law. In this regard offer and acceptance are essentials.
5. Ingredients or essentials of contract in Muhammadan law:-Following are the ingredients or essentials
of contract.
(I) Plurality of parties:- A contract requires that there should be two
parties to it, at least. Any one person cannot from a valid contract.
(II) Aijab and Qabul:-Ijab and Qabul or proposal and acceptance are
the constituents of a contract one party
should make a proposal and the other should accept it.
Example:- ‘A’ Offers to sell his car to ‘B’. ‘B’ accepts his
offer. It is a contract.
(I)Conditions for Ijab and Qabul :- Following conditions have been laid down by the jurists for
the valid offer and acceptance.
(a) Conformity offer and acceptance:- It is necessary that the acceptance must
conform with the offer and any variation in the acceptance made it a counter
offer.
Example:- ‘A’ says to ‘B’ I have sold this car to you for
10,000 ‘B’ replies I have accepted it for 8,000.” This is not a valid
acceptance and hence there is no contract.
(b) Must be in same session:- The offer and acceptance must be made at the same
meeting, either in fact or what the law considers
as such.
Example:
‘A’ says to ‘B’ I want to sell my horse to you. ‘B’ says nothing and leaves the place. The offer comes to an end and ‘B’ cannot accept it later.
‘A’ says to ‘B’ I want to sell my horse to you. ‘B’ says nothing and leaves the place. The offer comes to an end and ‘B’ cannot accept it later.
(c) Acceptance before the termination of
offer:- Acceptance must be
made before the termination of offer, otherwise the contract cannot be made.
(III) Mahall Al Aqd (subject-matter of
contract) The mahall-al-aqd is
the thing for which an agreement has been made, and in which the effects of the
contract are visible. It is almost same as the term consideration in English
law.
(i) Conditions of Mahall al Aqd:- The subject matter must have legal value.
(a) It must be in existence at the time of
the contract.
(b) It should be potentially capable of
delivery at the time of the contract.
(c) It must be known to the parties.(IV)
Capacity to enter into contract
The parties must have the capacity to enter into the contract. They
must be sane, major
etc.
(V) Legal relation:-The contract must be to establish legal relations arising from the consent of the minds of two persons to deal with each other in respect of certain rights of theirs.
(V) Legal relation:-The contract must be to establish legal relations arising from the consent of the minds of two persons to deal with each other in respect of certain rights of theirs.
(VI) Free consent:-The consent of the parties must be free and
genuine. It must not be obtained by coercion, undue influence, fraud, mistake
or misrepresentation
(VII) Fitness of Mahall :- It is subject matter is not fit for the
purpose, the contract relating thereto will be void altogether.
(VIII) Legal contract:-A contract must be lawful or legal a contract
is legal if it is not contrary to Islamic law e. g. contracts in violation of
the prohibition of riba or contrary to public policy e. g. contracts in
restraint of trade etc.
6. Conclusion:- The
law of contract in Islamic law is more or less similar to that of western law.
The dominant idea of a contract in Muhammadan law is that, it establishes a tie
of legal relations and it is the most important and frequent mode of
acquisition of ownership.
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