TABLE OF CONTENTS

1.1: DEFINITIONS:- .................................................................................................................... 2

1.2: Contract ................................................................................................................................ 2
1.3: Intoxication .......................................................................................................................... 2
1.4: Capacity................................................................................................................................ 2
2.1: THEORY OF ISLAMIC LAW:-.......................................................................................... 2
2.2: Elements of Islamic contract ................................................................................................ 2
2.3: State of intoxication .......................................................................................................... 2
2.3.1: Involuntarily intoxication .............................................................................................. 2
2.3.2: Voluntarily intoxication................................................................................................. 2
2.4: Some hadits about intoxication ............................................................................................ 3
2.5: Opinion of different school of thoughts ............................................................................... 3
2.5.1: Shafi jurist’s opinion ..................................................................................................... 3
2.5.2: Hanfi jurist’s opinion ..................................................................................................... 3
2.5.3: Maliki jurist’s opinion ................................................................................................... 3
2.5.4: Hanbli jurist’s opinion:- ................................................................................................ 3
2.5.5: Majority jurist’s opinion:- ............................................................................................. 3
2.5.6: Some other jurist’s opinion:- ......................................................................................... 4
2.6: Explanation:- ........................................................................................................................ 4
3.1: THEORY OF POSITIVE LAW:- ........................................................................................ 4
3.2: Elements of valid contract:- ................................................................................................. 4
3.3: When an Intoxicated Person Enters Into a Contract ............................................................ 5
3.4: Explanation:- ........................................................................................................................ 5
3.5: Case example: ...................................................................................................................... 5
4.1: CONCLUSION:- ................................................................................................................... 6

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1.1: DEFINITIONS:-
1.2: Contract
Contract in Arabic is called Aqd. Literal meaning of Aqd is to bind or to strengthen. The word
Aqd is also used in Arabic in the sense of confirming an oath. As such, any covenant, pact,
agreement and treaty will also be referred to as Aqd since all of them demonstrate firm resolve
for execution. Plural of Aqd is Uqood.

1.3: Intoxication
A state in which a person's normal capacity to act or reason is inhibited by alcohol or drugs.

1.4: Capacity
In Sharia, the word capacity or 'Ahliyyah' represents a person's competence to enter into
obligations as well as carry out their execution under a contract. This includes financial
contracts. In other words, capacity can also be defined as the competence of contracting parties
to acquire respective rights and liabilities.

2.1: THEORY OF ISLAMIC LAW:-

2.2: Elements of Islamic contract
According to Sharia, a contract cannot be defined as such unless it has the following four pre-
requisites:
1) Existence of minimum two parties: A contract cannot be formed with the presence of a
single party.
2) Offer and acceptance: It is necessary for a contract to have consent by both parties over the
purpose and content of the contract. An offer can be made by either party in a contract – seller or
buyer. Similarly, the acceptance also could come from any of them.
Offer and acceptance could be written or verbal.
3) Sharia compliant: The offer and acceptance between the parties should be for a purpose not
repugnant to Sharia.

4) Contract's object: The subject of the contract must change hand upon completion of the
contract.

2.3: State of intoxication

2.3.1: Involuntarily intoxication
Islamic jurists accept that a person may not be held responsible for his obligations under a
contract if he can prove that he was placed under the influence for the purpose of entering the
contract, which he would not have entered had he not been intoxicated.

2.3.2: Voluntarily intoxication

In case of voluntary intoxication, intoxicated person will be held responsible since it is
considered an offence under Sharia to consume such beverages. As such, he cannot be excused

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from punishment in case of non-fulfilment of his obligation in terms of a contract entered into by
him while he was drunk. This is aimed to work as a deterrent.

2.4: Some hadits about intoxication

 Abu Hurayrah reported the Messenger of Allah as saying, "When one commits
fornication he is not a believer, when one steals he is not a believer, when one
drinks Khamr (wine) he is not a believer ... "[Bukhari & Muslim]

 In another Hadith it is reported on behalf of the Prophet that he said, "Liquor is the
mother of many evils and it is the most shameful of all evils: anyone who drinks liquor,
will neglect prayer, and may commit incestuous offences."
 It dulls the senses and befogs the mind, and whatever does that is haraam, because the
Prophet (peace and blessings of Allah be upon him) said: “Every intoxicant is khamr,
and every intoxicant is haraam. Whoever drinks khamr in this world and dies
persisting in that and without having repented, will not drink it in the Hereafter.”
Narrated by Muslim, 2003.

2.5: Opinion of different school of thoughts

2.5.1: Shafi jurist’s opinion

According to shafi’s, intoxicated person is liable for all his actions except the person who’s
insane.
(Al-Shafi‛i’s Risala 115 (page 133))

2.5.2: Hanfi jurist’s opinion

The Hanafi holds that the legal competence of the man is not affected by voluntary intoxication.
Therefore, all transactions entered into by him while intoxicated are valid in the same manner as
when they are entered into whilst he is sober.
(The Distinguished Jurist’s Primer19.2.2 (Volume 2, pages 97-100))

2.5.3: Maliki jurist’s opinion

The Maliki School gives an intoxicated person the option of rescinding a legal act upon
regaining his faculties.

2.5.4: Hanbli jurist’s opinion:-

The hanbli jurists argue that as the person in state of intoxication is not known what he is saying
so the contract is not allowed. Because:

 The intoxicated person does not know what he is saying so he is like an insane person.

2.5.5: Majority jurist’s opinion:-

The majority of the Muslim jurists have the opinion that the contracts made by statement of
drunken person are allowed and creates all rights and obligation because:

 He became intoxicated on his own choice.

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  He knew that the drinking was prohibited in islam and crime should not give him
relaxation from his duties.
2.5.6: Some other jurist’s opinion:-
Some other jurists make differences between voluntarily and involuntarily intoxication. For
example:

 Who does not know it is a forbidden thing.

 Who use it under coercion.
 Who used it as medicine when necessary.
 Who is about to die of thirst and nothing else is available.

2.6: Explanation:-
Drunkenness is the state caused in a human being due to the use of an intoxicant which
temporarily suspends the proper functioning of the mental faculty. The bases for the capacity for
execution are AQAL (reason) and rushed (discretion); these are negated in the case of drunken
person by the state of drunkenness.
For example the person who has consumed liquor without knowing what it is or when he has
done under coercion or under duress to save his life. In such cases, the hukam for this person
will be the same of that of the person under the spell of fainting. Muslim jusrist disagree about
the person who is intoxicated when such intoxication is caused by prohibited means. The hanfi’s
and some other jurist don’t consider such a cause to have any effect on the capacity for execution
on the understanding of the khitab Any transation or acknowledgment he makes is valid and
inforceable against him he aquires criminal liability for acts committed in such a state though he
can retact his confession made in the state regarding a case of hudood and these are pure rights
of ALLAH.
The argument provided by hanfies is that intoxication is a crime and as such cannot be excused
for waving punishments further one reason why intoxication has been prohibited is that it leads
to others khabaith . Moreover, if the acts of drunken person are to be exempted from liability it
will become a means for the commission for offenses and for evading liabilities.
Some jurists are of the opinion that an intoxicated person has no capacity for execution because
his aqal (reason) is completely impaired by the state of intoxication they maintain that the law
giver has already provided a penalty for the offense of intoxication and holding him liable for his
transation as well, that is , those drunken in such a state , would amount to punishing him twice
for the same offense a kind of double jeopardy .

3.1: THEORY OF POSITIVE LAW:-

3.2: Elements of valid contract:-

Under the positive law, contracts require a few things to be created in the first place.
Specifically, there must be

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 an offer by one party which is accepted by the other
 both parties must agree to the material terms of that agreement (often called a “meeting of the
minds”)
 And there must be an exchange of something of value (often called “consideration”).
 Moreover, the terms of the agreement need to be sufficiently clear and definite so the court
has a way to enforce them.

3.3: When an Intoxicated Person Enters Into a Contract

When an intoxicated person enters into a contract, the contract can either be enforceable,
meaning held to the fullest extent of the law, or voidable by the intoxicated person. The court
will look at two criteria that need to be present in order to make the contract voidable:

1. The intoxication was severe enough that the person entering into the contract was
incapacitated.
2. The other party was aware of the intoxication at the time.

3.4: Explanation:-
If a person signs a contract while drunk or under the influence of drugs, can that contract be
enforced? Courts are usually not very sympathetic to people who claim they were intoxicated
when they signed a contract. Generally a court will only allow the contract to be avoided if the
other party to the contract knew about the intoxication and took advantage of the intoxicated
person, or if the person was somehow involuntarily intoxicated.The law will intervene in some
circumstances where someone who is intoxicated enters into an agreement. Intoxication alone is
not sufficient, but it can be a defence to enforcement by the sober party, and the intoxicated party
may void the contract on the basis of his or her own intoxication in the following circumstances,
that is firstly, the intoxicated party, because of the intoxication, did not know what he or she was
doing. Secondly, the sober party was aware of the intoxicated state of the other party. Thirdly,
upon becoming sober, the intoxicated party moved promptly to repudiate the contract. The basis
for this approach is not that one party is drunk but that the other party might defraud the
drunkard. Thus, even where the sober party is not aware of the intoxicated state of the other
party, if there is evidence of intoxication so that it may be presumed, the unfairness or one-
sidedness of a contract might result in its being voided. This view moves the law toward a
position that an unconscionable agreement permits the court to presume that the sober party had
knowledge of the intoxication of the other party once there is evidence of intoxication.

3.5: Case example:

Matthews v. Baxter (1873) LR 8 Exch 132

Baxter, while drunk, agreed at an auction to purchase a property. Once sobriety returned he
decided that he wished to affirm the contract that had been made by him while drunk. Sometime
later he had a change of mind and he sought to rescind the contract, arguing that he lacked
capacity to enter the contract by reason of intoxication. The court held that because Baxter had
confirmed the contract it was no longer open to him to avoid the contract on the grounds of
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intoxication. This was despite the fact that he had made out the necessary element of this
defence.

Section 3 of the Sale of Goods Act 1979 makes the same provision for persons who are
incompetent to contract by reason of “drunkenness” as for minors and the mentally incompetent.

4.1: CONCLUSION:-
To conclude this topic, I’d say that being a Muslim rule of law given by lawgiver and rules
derived from sunnah are the best rules to follow. Apart from that, on rational grounds I think the
principles given by Islamic law are more reasonable than that of positive law. There are differing
views among scholars concerning action of intoxicated person. According to some, the
intoxicated person is liable for his actions because his legal competence is not affected merely
because he’s intoxicated. While others have the opinion that as an intoxicated person does not
know what he’s saying or doing so he is like an idiot person during that time and due to this
reason he does not has any liability.

My point of view is that an intoxicated person should not be exempted from all liabilities
because if he is, the person will use it as an excuse every time to commit unlawful acts and then
evade liability.

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