QUESTION 8 Capacity of Contracting Parties 1. Ahliyyatu al-Wujub 2. Ahliyyatu al-Ada

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QUESTION 8Capacity of Contracting Parties 1.
Ahliyyatu al-Wujub2. Ahliyyatu al-Ada

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

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ELEMENTS OF AQAD
Hanafi
Ijab Qabul
Ijab
Majority
Sighah Contracting Parties Subject Matter
Qabul
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Contracting Parties

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

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Ahliyyatu al-Wujub

• Def the eligibility of a person to acquire
  rights for and upon him (Fiqh)
• the capacity of obligation i.e. to acquire
  rights and duties (literal)
• Factors that embodied elements of Ahliyyatu
  al-Wujub on human being is the life of humanity
  itself. So there is no correlation with age or
  sense of maturity.
• This right existed since the formation of the
  fetus in womb until a mans death.
• Every human being, including the fetus in his
  mothers womb or a lunatic, has this kind of
  right.
• Divided into two parts
• Complete ( Naqisah)
• Incomplete (Kamilah)

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Ahliyyatu al-Wujub
Kamilah Complete
Naqisah Incomplete
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1.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.
• These right is not complete which is still owned
  by the fetus in the mother's belly, it means not
  yet born.
• This right is incomplete right for two reasons,
  namely
• First, the fetus may be alive but there is a
  possibility he will born in a state of death.
  Therefore his status does not exist and he did
  not get any right.
• But from another aspect there is a possibility he
  will be born alive. Therefore he has a right as a
  human being.
• The existence of these two possibilities, born
  alive or dead, making the position of the fetus
  does not earn rights. However considering that
  the fetus actually exist in the mother's womb, he
  has the right to rights, even though his life as
  humans generally have not materialized.

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• Second, the fetus is still in his mother's womb
  so is still considered part of the mother. He
  moved with his mother's gestures. Nevertheless,
  when it is ready, the fetus is ready to be
  separated from her mother to have the perfect
  life.
• 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. Establishment of blood relation to the
  father
• ii. Right of Inheritance
• iii.Right to receive bequest
• iv.Right to benefit from the waqaf property
  made for his interest

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

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2. Complete (Infant)

• Complete capacity to acquire certain rights and
  responsibility. However he not yet have rights in
  contract. Therefore the infant acquire this
  rights resulting from any transactions held by
  the guardian or trustee acting on his behalf.
• Hanafi- 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.g. to pay for the price of the
  property bought for him, or to own whatever
  things given to him as gift.
• He shall discharge such property tax liability
• He is obliged to pay zakat (majority except
  Hanafi)

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• In matters relating to property issues, 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.
• However, when he entered into a contract or
  perform a legal action, whether favorable to
  himself e.g. receiving a grant or a will, or that
  do not benefit him e.g. he donated some of his
  property to someone else, then the contract is
  VOID because he does not yet have the capacity
  to enter into a contract (aqad).

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Ahliyyatu al-ada

• Age 7 to puberty (Incomplete)
• -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.
• -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

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• While according to Shafii and Ahmad his contract
  is null and void, 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 guardians consent or ratification.

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Ahliyyatu al-ada

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

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• Majority jurist specify that having reached
  puberty on the basis of a Quranin verse (IV5)
• Make a trial of the orphans until they reached
  marriageable age. If you are then accustomed to
  their acting with prudence, 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). For example whether a person
  is able to distinguish the differences between
  sale and a purchase.
• Majority jurist agree that prudence and puberty
  occurred around the age of 15 years old. However
  in many event, 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.

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• Age of Majority
• -Abu Hanifah fixed the age of majority at 17
  years old
• -Majority jurist fixed at 15 years old,
  rationale based on report from Ibn. Umar, 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. I next presented myself to
  him when I was 15 and he allowed me to join the
  ranks (al-mughni)

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Impediment to legal capacity

• One of the condition of a valid contract he/she
  must be of a sound mind or prudence (Rushd).
• 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 someones
  legal capacity. It can be categorized to 2
• (i) Involuntary Impediments or known as
  Awaridh Samawiyyah that is the factors
  beyond ones control. The factors exists
  without affected persons choice.
• (ii) Voluntary Impediments or also known as
  Awaridh Muktasabah that is the factors within
  ones control.

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• Example of Awaridh Samawiyyah (Involuntary
  Impedements)
• 1. A lunatic person (Matuh or Majnun)
• -Is considered lacking in discernment (Tamyiz)
  and therefore any act entered into by them is
  null and void.
• -A Majnun who is characterized by abnormal and
  irrational behaviour is interdicted from entering
  into any valid contract.
• - A Matuh (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.

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

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

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

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

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• 2. Drunkenness
• -It is a controversial issue with the Fuqaha
  due to the Quranic prohibition of Khamr (surah
  al-Nisa 443) and the Fiqhs consequent
  analogous prohibition of alcohol.
• - Hanafis distinguish between accidental and
  voluntary drunkenness, giving legal effect to
  acts entered into . If it is voluntary
  drunkenness due to his own desire, the contract
  is valid. If it is accidental the contract may be
  suspended.
• -Malikis regards acts or declarations pronounced
  in a state of drunkenness as non-obligatory
  subject to later ratification.
• - Shafiis and Hanbalis consider them null and
  void, subject to later ratification.

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• Conclusion.