بسم الله الرحمن الرحيم
PRINCIPLES OF ISLAMIC
JURISPRUDENCE
Session 3
Presentation Outline
1. General overview of Contracts: Definition,
Comparison with conventional views, Historical
background
2. Five basic terminologies: Al-Rukn, Al-Sabab, Al-
ïllah, Al-Shart, Al-Mani’
3. Summary of the most important named contracts:
Nominate contracts, Un-nominated contracts.
4. Different Classifications of contract: (enforceability
wise, with regard to binding and dissolubility of the
contract, Liability wise, with regard to Asliyyah and
tabíyyah,
Contract
Literally, it means to tie.
Terminologically:
)ارتباط ايجاب بقبول علـي وجـه مشروع يثبـت أثره فـي محلـه ( مجلـة األحكام العدلية
“The matching of offer with acceptance, through a
legally valid manner, whose conclusion is completed
on the subject matter”. (Majallah)
Evolution of Contract
In Roman Law the right of property were bound to
transfer through mancipation.
Mancipation is an early form of ceremonial
conveyance under the jus civile involving the balance
scales, bronze money, a balance holder, and five
citizens as witnesses in which persons and property
subject to the ceremony were transferred by one
Roman citizen into the power and control of another.
Evolution of Contract
Arabs stipulated that the contract will be
complete if any of the following happen:
1. Whoever touches the subject () لاــمالمـسـة
2. Whoever throws a stone on it(إــاء لاــحجر) لقـ
3. When the seller throws the subject
towards the purchaser() لاــمنابذة
Evolution of Contract
Islam prohibited all these contracts and just
stipulated the existence of offer and acceptance.
Unneeded formalities were wiped out.
Only when there is a particular objective, other
restrictions are added.
Like condition of possession in Rahn and Gift. Or
condition of witnesses for the validity of
marriage.
Basic Terminologies
1. Rukn ( ) الرـكـنPillar: the inherent components on
which the existence of a thing depends upon.
-Parties, subject, and consideration (if any)
are the rukn of contract.
2. Al-Sabab سبب
( ) لاــReason/Means/Basis: Every
external matter, whose existence or non-
existence results in existence or non-
existence of another matter.
-Destroying the property of other person is
sabab for the indemnification.
Basic Terminologies
3. Íllah ( ) لاــعلةRatio Decidendi: the real reason of
legitimizing or illegitimating of an act
-Similarity and measurement by weight or
volume (اــدر
) لاــجنس و لقـis the reason why Riba Al
Fadhl is illegal
Basic Terminologies
4. Al-Shart ( ) لاــشـرطCondition: Every external
matter whose non-existence results in non-
existence of another matter. But its existence
does not result in existence of the other.
-capacity to contract in parties
-capacity of subject matter to be owned
(excluding example: Waqf Asset)
فات المشروط, إذا فات الشرط
Basic Terminologies
4. Al-Mane’ () لاــمانـعـ, Obstacle: It is mirror image
of Shart. Every thing whose existence leads to
non-existence of other thing.
-Defect in the sold asset is Mane’ for the
effectiveness of the sale.
-Liability on deceased is Mane’ for the
distribution of inheritance.
-Murder by a heir is Mane’ for the murderer
heir to get the inheritance.
Basic Terminologies
عاد الممنوع,إذازال المانع
It’s a legal maxim. When the Obstacle is
removed, the obstructed shall return to its
position
It means that Sabab remains valid with the
existence of Mane’.
If defect of the sold asset is somehow gets
removed, the sale will become valid
automatically without fresh offer and acceptance
جزاكم الله خيرا ً