QUESTION 8 CAPACITY OF CONTRACTING PARTIES 1. AHLIYYATU AL-WUJUB 2.

AHLIYYATU AL-ADA’

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Shahrullah Khan Nawab Zadah Khan Nooraneda Mutalip Laidey Janatul Naemah Mohd Rasid

ELEMENTS OF AQAD
Ijab Hanafi Qabul

Ijab Sighah Majority Qabul

Contracting Parties

Subject Matter

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CONTRACTING PARTIES Contracting parties are the parties who exercise the sighah of ijab & qabul. Al-Ahliyah/legal capacity has been defined by Muslim jurists as the “eligibility of a person to establish right for and obligation upon himself”. In order to conclude a valid contract. the contracting parties must have legal capacity. 3 3 .

Al-Ahliyah Ahliyyat al-wujub (the eligibility of a person to acquire rights for and upon him) Ahliyyat al-ada‟ (the eligibility of a person to execute or discharge his right and duties in a manner recognized by law 4 .

has this kind of right. including the fetus in his mother‟s womb or a lunatic. Every human being. to acquire rights and duties (literal) Factors that embodied elements of Ahliyyatu alWujub on human being is the life of humanity itself.AHLIYYATU AL-WUJUB  Def : the eligibility of a person to acquire rights for and upon him (Fiqh) : the capacity of obligation i.e. This right existed since the formation of the fetus in womb until a man‟s death. Divided into two parts  Complete ( Naqisah)  Incomplete (Kamilah) 5     . So there is no correlation with age or sense of maturity.

Ahliyyatu al-Wujub Naqisah Incomplete Kamilah Complete 6 .

Therefore his status does not exist and he did not get any right. This right is incomplete right for two reasons. 7 . These right is not complete which is still owned by the fetus in the mother's belly. even though his life as humans generally have not materialized. namely: First. he has the right to rights. making the position of the fetus does not earn rights. The existence of these two possibilities. However considering that the fetus actually exist in the mother's womb.1. born alive or dead.INCOMPLETE (FETUS IN WOMBS)      This right is incomplete because a person gains the right but in the meantime he is incompetent to bear the liability. it means not yet born. But from another aspect there is a possibility he will be born alive. Therefore he has a right as a human being. the fetus may be alive but there is a possibility he will born in a state of death.

iv.  Given the position of the fetus as part of his mother and separated from his mother's readiness to live alone. he does acquire rights that does not require Qabul  There are 4 rights granted: i. when it is ready. Establishment of blood relation to the father. ii. the fetus is ready to be separated from her mother to have the perfect life.Second. iii. He moved with his mother's gestures.Right to receive bequest. Right of Inheritance. the fetus is still in his mother's womb so is still considered part of the mother.Right to benefit from the waqaf property made for his interest  8 . Nevertheless.

his rights must be given back to the entitled person. and iv but the right would depend on his existence as human being (born). fetus does not acquire automatic right to ii. he will acquire the right but if he is born death. However. ( Syafii &Hambali) 9 . iii. (Hanafi & Maliki)  Fetus not entitled to waqaf but entitled to inheritance and bequest.  Fetus is entitled to waqaf. If he is born alive.

Therefore the infant acquire this rights resulting from any transactions held by the guardian or trustee acting on his behalf. or to own whatever things given to him as gift. COMPLETE (INFANT)       Complete capacity to acquire certain rights and responsibility.g. Hanafi. However he not yet have rights in contract.2. He shall discharge such property tax liability He is obliged to pay zakat (majority except Hanafi) 10 . to pay for the price of the property bought for him.this right is established when the fetus is born alive Majority – this right is not established except when the fetus is born alive and is sempurna He is subjected to all responsibilities affecting his property. e.

whether favorable to himself e.  However. a small child have equal responsibility with the adult. As for the implement is a guardian or holder of a will for him on his behalf.g. In matters relating to property issues.g. then the contract is VOID because he does not yet have the capacity to enter into a contract (aqad). he donated some of his property to someone else. when he entered into a contract or perform a legal action. or that do not benefit him e. 11 . receiving a grant or a will.

-Hanafi are of the opinion that his contract is of 3 types: (i) Beneficial „aqd eg: to received gift : Valid (ii) „Aqd that causes loss : Void (iii) „Aqd that may cause either benefit or loss eg: contract of sale : contingent upon approval of guardian 12 . -In general he has a complete capacity as at person to attain rights and responsibility and to enter into contract in certain types of contract.AHLIYYATU AL-ADA‟  Age 7 to puberty (Incomplete).

- While according to Shafii and Ahmad his contract is null and void. - 13 . except where such act are purely to the advantage of a minor of perfect understanding but must be ratified by the guardian. A minor of imperfect understanding may not make any valid disposition of his property even with his guardian‟s consent or ratification.

AHLIYYATU AL-ADA‟  Age of Puberty or Baligh/ Age of Majority (Complete). -Where he/she has complete capacity to acquire rights & responsibilities. 14 . he has a wet dream /emission of seminal fluid. -Baligh is reached when for a boy. -In general when a person has reached puberty or baligh he/she has reached the age of majority. He can enter to any „aqd without the need to get anyone‟s approval. While for a girl when she has her first period.

- Majority jurist specify that having reached puberty on the basis of a Quranin verse (IV:5) “Make a trial of the orphans until they reached marriageable age. the minimum age of puberty was at the age of 9 years old for a girls and at the age of 12 years old for boys. hand over their property to them” Age of majority is linked to a manifestation of prudence (Rushd) but certain limited capacities may be granted to persons manifesting discernment discretion (Tamyiz). Majority jurist agree that prudence and puberty occurred around the age of 15 years old. If you are then accustomed to their acting with prudence. For example whether a person is able to distinguish the differences between sale and a purchase. - - 15 . However in many event.

a compinion of the Prophet. Ibn Umar reported: “I offered my services to the prophet when I was 14 years old but he refused me permission to engage in the battle. Umar. rationale based on report from Ibn. I next presented myself to him when I was 15 and he allowed me to join the ranks” (almughni) 16 . Age of Majority. -Abu Hanifah : fixed the age of majority at 17 years old -Majority jurist : fixed at 15 years old.

IMPEDIMENT TO LEGAL CAPACITY  One of the condition of a valid contract he/she must be of a sound mind or prudence (Rushd).  (ii) Voluntary Impediments or also known as „Awaridh Muktasabah‟ that is the factors within one‟s control. (i) Involuntary Impediments or known as „Awaridh Samawiyyah‟ that is the factors beyond one‟s control.  Ibn Qudama defines prudence in a person as the “protective safekeeping of his property and sound organization of his business” There are some factors that may impede someone‟s legal capacity. The factors exists without affected person‟s choice. 17 . It can be categorized to 2 .

18 . 1.A Ma‟tuh (partially or temporarily insane) is recognized as having lucid periods during which he is allowed to enter into certain valid transaction on a par with the discerning minor. -A Majnun who is characterized by abnormal and irrational behaviour is interdicted from entering into any valid contract. A lunatic person (Ma‟tuh or Majnun) -Is considered lacking in discernment (Tamyiz) and therefore any act entered into by them is null and void. Example of „Awaridh Samawiyyah (Involuntary Impedements). .

Sleeping . 4. 3.Sleeping person also is considered lacking in discernment (Tamyiz) and therefore any act entered into or declaration made by them is null and void. 19 . and in the case of male.Imbecility person is considered lacking in discernment (Tamyiz) and therefore any act entered into by them is null and void. Imbecility („atah) . where such person is unable to deal with his affairs outside his home.2. Ill with Death Sickness -Al-Majella defines as a “sickness where in the majority of cases death is imminent.

death having occurred before the expiration of one year by reason of such illness. 20 - - . under the compulsory rules of inheritance 2/3 of the deceased‟s estate. where she is unable to deal with her domestic duties.- and in the case of a female. Under the Islamic law of succession at death the entitled legal family heirs have an entrenched right. whether the sick person has been confined to bed or not” Dispositions during death sickness are interdicted in the interest of the person‟s heirs or creditors.

is ultra vires and ineffective unless ratified by the legal heirs. it is said to be suspended (“mawqul”) upon the consent or otherwise of the party whose interest the interdiction is imposed. subject to 2 main restrictions. in order to protect the heirs‟ rights of inheritance. (a) A bequest in excess of 1/3 of the net estate.- Personal discretion to dispose of the property at death by way of will or bequest. or a bequest in favour of any legal heir. - - (b) A gift made by a dying person is not ipso facto null and void. 21 .

Coulson in his books defined Prodigals “as one who through simple mindedness. 22 . -Such persons are subject to interdiction to protect them from their own folly. squandering his goods or money immoderately and to no good purpose from the general standpoint of Islamic morality”. 1. carelessness or conscious design. Example of „Awaridh Muktasabah (Voluntary Impedements). Prodigals (safih) . is wasteful or extravagant in his property dealings.

.Hanafis distinguish between accidental and voluntary drunkenness.Shafiis and Hanbalis consider them null and void. Drunkenness -It is a controversial issue with the Fuqaha‟ due to the Quranic prohibition of Khamr (surah al-Nisa 4:43) and the Fiqh‟s consequent analogous prohibition of alcohol.2. 23 . -Malikis regards acts or declarations pronounced in a state of drunkenness as non-obligatory subject to later ratification. subject to later ratification. If it is voluntary drunkenness due to his own desire. . the contract is valid. giving legal effect to acts entered into . If it is accidental the contract may be suspended.

Conclusion. 24 .