CAUSES OF DEFECTIVE LEGAL CAPACITY

Samawiyyah : Natural Causes 2. whether he acts directly or through delegated authority. y The jurist divide the causes of defective capacity into two kinds : 1.Natural Causes of Defective Capacity y There are causes that are beyond the control of the subject (Mukallaf). sometimes occurs also barriers to reduce or eliminate their ability. y When a person has a perfect ability. Mukallaf is a person who possesses ahliyah (legal capacity). Muktasabah : Acquired causes .

for financial transactions and for punishments.1 Minority (Sighar)  Sighar (minority) is the state or condition of a human being after birth and before puberty.  The sabiyy (minor) is liable for compensation of property destroyed by him. Samawiyah (Natural Causes) 1.1. . for goods and services bought. for maintenance of relatives and also for zakat.  The minor is not liable for the ibadat.

2 Insanity (junun)  The insane person who is insane lacks aql.  The insane person has no liability for ibadat or punishments and all his transactions are void.  Junun has no effect on ahliyyat al-wujub because rights are against an insane person.1. who is liable for destruction of property and payment of diyah. .

4 Sleep and Fits of Fainting (Nawm wa Ighma¶) Sleep and fits do not effect ahliyah al-wujub. . There is no liability for punishments and transactions. who can be permitted by his guardian to undertake some transactions. while at others he is like a madman.because the attribute of insaniyyah is intact.  The capacity of an idiot is deemed equivalent to that of a sabiyy mumayyiz (the discriminating minor). 1.1.3 Idiocy (µAtah)  It is a state in which a person at times speaks like a sane and normal person.

.1.5 Foregetfulness (Nisyan) o This is a state in which a person is not very careful about things. o Forgetfulness does not affect ahliyah al-wujub nor does it affect the capacity for execution.6 Death-illness (Marad al-mawt)  This is a condition in which the mind of a sick person is dominated by the fact that he will die because of his illness.  Maradh al-maut has no effect on the capacity for acquisition and the capacity for execution. 1.

7. 1. Shubbah) Coercion (Ikrah) . 3. 4. 5.ACQUIRED CAUSES O DEFECTIVE CAPACITY ‡ Created by man or in which human will and choice are the basic factors. 2. Ignorance (Jahl) Intoxication (Sukr) Jest ( Hazl) Indiscreation (Safah) Journey ( Safar ) Mistake (Khata¶. 6.

which temporarily suspends the proper functioning of mental faculty. the obligation. but understand what is said by another person to him. Drunken person has dhimmah (legal personality) and ability for the acquisition and is responsible for life and property. . Khitab (al-Quran) is not addressed to them who drunken because they do not understand. o Aql (reason) and rushd(discreation) is the basis of the capacity for execution.Intoxication ( SUKR ) o Drunkenness is a state caused in a human being due to the use of an intoxicant. o Intoxication did not cause changes in the capacity for acquisition. The situation worse than a drunk is more severe than the person who falls asleep and awake. maintenance and Zakat. and worse than idiot.

´ [ Quran 4:43]. because his aql(reason) is completely impaired by the state of intaxication. o Some jurists are of the opinion that an intoxicated person has no capacity for execution. o ³ o ye believers. o Muslim jurist disagree with those who drunk on the way that illegal because they ignore responsibilities worship as well as sinful.o The jurists agree unanimously that the kitab is not directed toward the intoxicated person if such intoxication has been caused by the legal use of intoxicants. . approach not prayer when you are intoxicated. until you know what you say.

. their denonations or their connotations.  The Hanafi¶s is considering a matters may not be valid but for the case of marriage. ruju(retraction) and the like are valid. divorce.Jest (Hazl)  When a person uses words without intending to convey either their primary or their secondary meanings. In other words. he is said to speak in jest ( hazl ). that is.  It has no effect on the capacity for acquisition and cannot negate the capacity for execution. the legal exists when there is consent and willingness. manumission.

that is.Indiscreation(safah) This defect concerns financial transactions. fficial restrictions imposed on persons who have not reached puberty. transactions undertaken carelessly and in a manner that a prudent person is likely to avoid. . Abu Hanifah consider official restrictions will expire when the individual reaches the age of 25 years and after that can own property. Effect :: foolish waste and squandering of property.

Coercion and Duress (ikrah)  Ikrah is a situation in which one is forced to do something without his willingness. because discreation. y Effect on free will : this state does not affect life or reason and  The jurists disagree about the extent to which ikrah can effect free will and may be classified into two opinion : .  It has no effect either on the capacity for acquisition or the capacity for execution.

‡ ‡ Ikrah is an obstacles in the way of taklif (creation of an obligation ) : Justified coercion Unjustified coercion .1. ii. Ikrah that does not negate consent nor does it make free will fasid.acts committed are legally permissible under coercion .acts that are legally prohibited ( example : murder and rape) 2. . iii. Coercion that negates consent. The second opinion is held by the Hanafis. but makes free will irregular or fasid. Coercion that negates free will or choice. who divide ikrah into three types : i.

Irregular or fasid free will. is sufficient for the existence of taklif. Transactions that do not accept rescission and do not depend upon consent ii. Transaction that accept rescission or revocation and depend upon consent.   Free will is not invalid ( batil) though it may be irregular and taklif may accompany ikrah. Hanafi¶s divide it into three types : Transaction. These are divided into two kinds. on the basis of the effect of ikrah i.  a.‡ Effect of coercion on legal capacity The Hanafi¶s maintain that the condition of taklif is the existence of the right to choose and not its validity(sihhah). . they say.

When the coerced is a mere instrument in the hands of another. . for example. Admissions and confessions c.b. 2. Divided into two kinds by the Hanafi jurists : 1. When the coered cannot become an instrument in the hands of another. or causing damage to property. like a person picking up another and throwing him upon another thereby causing death or hurt. Acts in general. in the commission of zina or eating of food.

iv. iii.Mistake and Ignorance (khata¶. and jahl)  shubhah is usually translated as doubt. ii. deals with doubts in the mind of the subject at the time of commission or omission of an act.  According to jurist. shubhah. Shubhah fi al-dalil (mistake of law) Shubhah fi al-milk (mistake as to ownership) Shubhah fi al-fil (mistake in the commission of the act) Shubhah fi al-aqd (mistake as to the governing law in contract) . hudud penalties are to be waived in case of shubhah. These are several types : i.

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