ELEMENTS OF

CONTRACTS,
FORM (SIGHAH)
Chapter # 2
FORM OF CONTRACT
 Form is the instrument or the mean by which a contract is made. It consists of
 Ijab (Offer)
 Qabul (Acceptance)

 In Majallah, ijab has been defined as, ‘a declaration that is made first with a
view to creating an obligation, while the subsequent declaration is called
qabul’.
DIFFERENT KINDS OF FORM
 By words
 There is no dispute amongst the jurist as regards the conclusion of contract
through words. The reason for this is that words are considered to be the basis
of all kinds of expression and other things ca only take place in case of
necessity.
 A basic rule in Islamic law is that the basis to be considered in contract is the
meaning and not words and forms. Whatever conveys the meaning with clarity
is considered sufficient for the formation of the contract.
 However Shafis and Hanbalis are exempted from the above rule. The word for
marriage is Nikah not the gifting or ownership. If a girl says I gift you myself
or you are owner of myself then the contact of marriage has not been
concluded.
.
 Islamic law requires that the words must convey the past tenses. Thus if A says
to B, ‘I have sold this house to you and B accepted this’ then the contract is
valid.
BY WRITING
 Majority of the jurist except the Hanbalis are of the view that contracts are
valid through writing, irrespective of whether the parties are present in one
majlis i.e. contracting session or one of them is missing. In the absence of one
party then the offer may take the place of letter.
 Some Shafis jurist does not approve that contarct according to them the
contarct by writing is only valid if a person is unable to speak.
BY GESTURE OR INDICATION
 The Hanafis and Shafis are of the opinion that forming a contarct
through gestures or indication is not allowed for one who can speak
or write, because spoken words and writing serve a more powerful
form of expression.
 The Malikis allowed that type of contracts.
BY CONDUCT
 This is termed as mu’atah in Islamic law. For example, A says to B: ‘ I sell
you this book for Rs. 10 , B places Rs. 10 on the counter and picks up the
book ‘
 The majority of the jurist allowed this type of contract with these conditions.
 Conduct must be from both sides
 There must be an intention
 Item must be of small value
 But Malikis also allowed the contract of expensive items. The Shafis does
not allowed the contract by conduct.
CAUSES OF CANCELLATION OF
OFFER (IJAB)
 Withdrawal of offer by the maker.
 The majority of the jurist are of the opinion that an offer can be withdrawn at
any time before its acceptance by one party. The Hanafis call this the ‘option
of withdrawal’.
 The Malikis does not gave permission to the maker to withdraw the offer.
DEATH OF ONE PARTY
 The death of either party before acceptance causes the offer to
lapse. Similarly is there occurs a loss of capacity or the party
becomes insolvent, the offer ceases to exist.
 Refusal of the offer
 The offer can be rejected by words or conduct

 Termination of the majlis

 The offer will be deemed cancelled by the termination of the majlis before acceptance from
the other party
 Destruction of subject matter
 The destruction of subject matter wholly or in parts leads to the cancellation of the offer