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Essential Elements and Necessary

Conditions in Contract

To make a permissible contract
valid, it must have essential
elements and each essential
element must meet the
necessary conditions.

1- Contract of Sale
The essential elements and the necessary
conditions in a contract of sale are:
1. Contract : Offer & Acceptance
(i) In definite and decisive language and absolute.
(The Majelle - Majallah Al-Ahkam Al-Adliyah complete code of Islamic Civil Law, provides as
follows:
Art. 169: For the offer and acceptance the past
tense is generally used.
Art. 170: By aourist tense like “Alirim and
Satarim” if the present tense is meant, the sale is
concluded, and if the future is meant, the sale is
not completed.

the other party must make the acceptance of it. But a sale concluded by an imperative which of necessity indicates the present.) .(. He has no right to separate either the price or the subject matter of the sale. 171: A sale is not concluded by words in the future tense.continued) which in the is Art. such as “sell”. such as “I will take”.”buy”.) (ii) The acceptance must agree with the offer. 172: A sale is also not concluded by words imperative tense. Art. (Mjl. 177: If one of the contracting parties make an offer for something in any manner whatsoever.. Art. so as exactly to correspond with the offer.”I will sell” mean merely a promise.

. whether by word or act. 185: On new offer being made before acceptance. the first offer becomes void. if one of the two parties gives an indication of dissent.(. the offer becomes void.continued) (iii) The contract must be made at the one and the same meeting. and there is no longer room for an acceptance. Art.) . 183: After the offer and before the acceptance. Art. and consideration is paid to the second offer. (Mjl.

) being delivery and (ii) The thing sold must be capable of delivered. Art. . 177: The existence of the thing sold is necessary.2.) (iii) The thing sold must be of value. (Mjl. The Thing Sold (i) It must exist (Mjl. 198: It is necessary that the of the thing sold be possible. Art.

126: Mal is a thing which naturally is desired by man. 127: Mal mutaqawwim is a thing the benefit of which is permissible by law to enjoy. 199:It is necessary that the thing sold should be “mal mutaqawwim”.) . and can be stored for times of necessity.continued) (iv) It must be of pure substance. 201: The thing sold becomes known by a description of its qualities and state. 200: It is necessary that the thing sold should be known to the buyer.. which will distinguish it from other things.(.) (v) The thing sold must be known. (Mjl. Art. Art. Art. Art. (Mjl.Art.

) . 365: In order that a sale may be “nafiz”. and that there should be no right in any one else. (Mjl. or natural or appointed guardian of the owner of the property. Art. it is a condition that the seller should be the owner of the property sold.continued) (vi) The thing sold must be owned by the seller.(. or agent..

238: It is necessary that the price should be known. (Mjl.3. 237: It is necessary that the price should be named at the time of the sale.) . 239: The knowledge of the price comes by a statement of its description and amount if it does not come by seeing it when it is shown. Art. Art. Art. The Price It must be known in currency and the absolute amount.

madmen and people of unsound mind are of themselves prohibited from dealing with their property. The Seller and 5. and that they should attach to a subject of sale. from reasonable persons. Art. 361: In the making of the sale. that is to say. should emanate from intelligent persons. there is a condition. The Buyer (The Two Parties to the Contract) (i) The two parties to the contract must be capable of taking responsibility. Art. 957: Infants. that the essence of the contract.4. which admits of the consequences of a sale. who possess judgement.) . (Mjl.

It is the compulsion. 958: A person who is prodigal can be prohibited by the judge. (Mjl. they must not be bankrupts and prodigals (safih). Art.) (iii) There is no coercion or compulsion exerted on either of the two parties to the contract. on the application of his creditors. which is by a hard blow. It leads to destruction of life in loss of a limb or one of them. can be prohibited from dealing with his property by the judge.e. 949: “Ikrah” is of two sorts. The first sort is “Ikrah mulgi”. i. (Mjl. Art. Art.(ii) The two parties to the contract must not be prohibited from dealing with their property. . 959: A debtor also.

and a postponement of a debt and causing of a right of preemption to cease. 1006: When they (transactions) take place in consequence of compulsion which is taken into consideration. and a letting.) . and a conveyance. and a purchase. whether the compulsion be “mulgi” or “ghair mulgi”. It is compulsion which is by things like a blow or imprisonment.Essential Elements and Necessary Conditions in Contract (.continued) The second sort is “Ikrah ghair mulgi”. This causes only grief and pain. in that case they are held good. are not held good. and an admission. an exchange of property. and a compromise about property. But if the person compelled give his consent after the compulsion has ceased.. Art.

Contract of Leasing The essential elements are: 1. Lessor (The necessary conditions are the same as those for buyer and seller in the contract of sale.2 .) .) 2. Lessee (The necessary conditions are the same as those for buyer and seller.

Contract The necessary conditions are: (i) In definite and decisive language. 435 : Hiring like sale becomes a concluded contract by the past tense. Art. Art.) . (Mjl.3. 443 : Like sale. letting becomes a concluded contract by a proposal and acceptance. it does not become a concluded contract by the future tense.

(Art. so also in making a contact of hire.) . the agreement of the proposal with the acceptance.445 : As in sales. and the unity of the meeting for making the contract is a condition.(ii) Acceptance must agree with offer. (iii) Offer and acceptance must be made at the same meeting.

446 : The letter who makes a contract of letting must be the absolute owner of the thing. (Art. or the agent of the owner. Asset The necessary conditions are: (i) Belongs to lessor.4. or his natural or legal .

without giving the choice or designating one of them. the letting . 449 : The designation of the thing given for rent is necessary. if a letter be made of one of two shops.(ii) Specified and known (Art. Therefore.

474 : In case there is a condition for a deferred payment of the hire. (Art.(iii) Delivered to lessee. The payment of the hire is only necessary on the . it becomes necessary for the lessor to make delivery of the thing hired. …first.

. in a way that the hirer can derive benefit from it without hindrance. continued) Art. is the giving of leave and permission by the letter.(iii) (. 582 : The delivery of the thing hired to the person who hires it. .

478 : If the benefit from the thing hired ceases to exist. continued) Art. The share of the hire for the time when a bath is . than the rent becomes no longer payable.(iii) (.) Example : 1..

Benefit It must meet these necessary conditions: (i) It can be fixed in value. (iii) It must be . (ii) The lessor has the power and capability to use and lease the asset.5.

(Art.(iv) It is known. in such a way as to put a stop to dispute. Art. 452 : As regards . 451 : In a contract of hire it is necessary to make known the use to which the thing hired is to be put.

continued) Art. saying for sowing whatever the hirer wishes. to fix what will be sown. . together with the time fixed. 454 : When land (Arazi) is taken on rent. it is necessary to say for what business it has been hired.(iv) (. and if it is for agriculture. or to make it general..

Rental Its necessary condition is that: (i) It must be known. it is known by fixing its .6. 450 : It is a condition that the rent be known. 464 : if the consideration for the letting is cash. (Art. Art.

or things measured (Mekilat) on things weighed (Meozunat) or things numbered which are alike . 465 : If the consideration (Bedel) for the letting is composed of merchandise (Aruz)..(i) (. continued) Art.