Thursday, 16 February 2012


Mithaq,Ahd and Aqd are THREE Arabic terms, which are used to designate contract and convey the meaning of their understanding and obligation. The contract is created when its essentials elements(arkan)and conditions(shurut) which the Lawgiver requires in these essential elements are found. An essential element (rukn),according to the generality of jurists, is that on which the existence of a thing depends regardless whether it is a part of its essence or lies outside it. The Hanfi jurists have restricted the essential elements(rukn) to that which is included its essence.(An introduction to the study of Islamic Law by Dr Hussain Hamid Hassan-S.A-IIUI-Pakistan).

Accordingly,  the jurists in general assert that --A contract has three elements(1)form(offer and acceptance/ Ijab-o-Qabul (2)the contracting parties and(3) subject matter.(Dr.Sanhuri, an eminent contemporary Muslim Jurist,has cited Seven Component elements in a contract).
The words concerning contract mean the instrument or means by which the intention of the contracting parties about the conclusion of the contract is expressed. This instrument or means is some times a word and some times a writing or an allusion, and some times an act.

Dr.Mansoori adds that:-
* It is a requirement of Islamic Law that acceptance should conform to offer in all its details and that the offer should be accepted in the same meeting
*The requirement of unity of session has been interpreted in different ways. To the modern jurists,whatever time is taken by the promisee to communicate his acceptance may be called continuance of the same meeting.
*Option of stipulation(Khiyar al-shart) is a mechanism provided by Islamic Law to overcome the problem caused by the restriction of unity of session. This option or right makes a contract non-binding for the party,which has reserved that right within a specific period.

Conditions necessary for Sigha(Form)
1. Conformity of the offer and acceptance on the same subject matter.   It is necessary that the acceptance must conform to the offer in all its details irrespective of whether such conformity is express or implied.


Dr.Mansoori writes.
According to the jurists when an offer is made,it must be accepted in the same meeting. However, the promisee is allowed to think over the offer for some time. The basis of this viewpoint is a precept of the Holly Prophet(s.a.w.s)--The contracting parties have the right of option until separate"(Bukhari,Sahih,Kitab al Buyu,No.2112,p.417). Opinion is divided among scholars in regard to the interpretation of the phrase"until they separate"..

Commenting upon on the condition of unity of contract session the Federal Shariat Court has observed the following.
              A narrow interpretation of majlis(meeting) would mean that the offer of the promisor should be
accepted without any delay and without any delay and without giving the promisee any opportunity to think or consult someone in order to make up his mind. This may be practicable in small transactions but will fail in bigger transactions, which may require considerable inquiry. Thus, if an offer is made for sale or a factory, it will require inquiry into the title,power to sell, value of machinery, value of building, its liabilities, if any profitability etc. If the majlis is interpreted to mean single session, no one will consider purchasing a property
( See-Suo-Moto examination of Laws in the Contract Act, Islamabad,1986 p-8). The Court further noted.
               The language of the above-mentioned tradition demonstrates that it was only meant to denote the law of revocation. Thus if two parties agree to enter into a contract in one meeting,each of them shall have a right to retract from it till they separate. This appears to be the object. Its other object is that the offer must be taken seriously. To some modern scholars the word"meeting" is only  legal fiction in that whatever time is taken by the promisee to communicate his acceptance may be called the continuance of the same meeting.( above) The FSC as such shown the matter related to "Khiyar al shart.


The narrator of a collection of traditions (Masnad al amam Zaid(r.a.t.a) a teacher of Imam Abu Hanifa-r.a.t.a-(d 150-A.H) had inquired from Imam Zaid--An al furqat bil abdan ou bil kalam-Either-- this separation is physical or of oral,the Imam said that this"separation"( of the contracting parties from each an other in a majlis/meeting) will be verbally. A person who is not conversant with the KALAM AL ARAB(Arabic language) will derive the meaning from the subject cited Hadith"the physical or bodily separation. Have yourselves not seen the commands of the Almighty Allah in the Holly Koran ?-And be ye not as those who separated and disputed after the clear proofs and come unto them(3:105).
These people were separated by way of talking(conduct) but physically they were at the same place.

Allah says in the Koran-Lo' As for those who sunder their religion and become schismatics, no concern at all hast thou with them(al Koran 6:160)--They have separated their Din(religion) orally.( See -Hadith No 433-Masnad al Amam Zaid-published by Shabbir Brother Urdu Bazar Lahore, Pakistan page-287 year of publication 2009).

According to his path (Minhaj) the Federal Shaiat Court Pakistan  follows( after Koran and Sun'nah) first the literature of Hanfi school of thought and secondly others to derive the Hukam(Command), and preferred statement is being followed in the process of Ijtihad. Hence the statement(qaul) of  Imam Zaid can be considered to follow on the subject.
Commenting upon the above verdict.Dr.Mansoori writes--
This right is known in Islamic Law as "option of stipulation"(khiyar al shart). The option of stipulation is the power by virtue of which one of the two contracting parties can give his final assent to the contract within a specified time. As such, if a purchaser, while giving his consent to the offer,retains the right to accept or reject it within three days( different opinion of the scholars is found), the contract will not be binding on him during that period. This means that Islamic Law provides a mechanism to overcome the problem caused by the restriction of unity of session.
 It is pertinent to point here that the requirement of unity of session does not apply of agency,making bequest and appointment of an executor( 'isa) for the property of minor.

3.The third condition"the offer survives till the acceptance proceeds" has been added by Dr Hussain Hamid Hassan.

The Contract Act of Pakistan does not fix any time of place during which or when the offer remains effective for the promisee to accord his acceptance. Section 5 provides that the acceptance to the proposal can be made before communication of the acceptance to the proposer by the promisee. Similarly, the acceptance can be revoked before its communication. Section 6 deals with th modes of revocation. Thus revocation can be affected:(1) through communication of a notice of revocation;
(2)by lapse of time prescribed for acceptance in the proposal for acceptance.
(3)by lapse of reasonable time.
(4)by failure of the acceptor to fulfil a condition precedent to acceptance;and
(5)by death or insanity of the proposer, when the fact of his death comes to the knowledge of the acceptor before his acceptance.(See contrct Act 1872, Section 5-6).

                The method can be followed by Islamic Law also since it facilitates the contract. Moreover, it is in the interest of the public. It goes without saying that realization of the public interest is an objective of the Shari,ah. Such methods may also be accommodated under the rule: Hardship causes giving of facility" and the rule"What is not prohibited is permitted".( Source-Islamic Law of Contracts and Business Transaction by Dr.Tahir Mansoori S.A-IIUI Pakistan).

(1) Withdrawal of offer by the maker. (2)Refusal of the offer(3)Termination of the Majlis.(4)Destruction of the subject matter.  And

5-Death of a party or loss of its capacity.
The death of either party before acceptance causes the offer to lapse. Similarly, if there occurs a loss of capacity or the party becomes insolvent, the offer ceases to exist. The"Ibadiyyah" a sect of the Khawarij, however, hold that the offer once issued does not cease to exist due to death or loss of capacity but can be accepted by the other party to complete the contract. They also maintain that an acceptance can be made by survivors of a party to whom the offer was made. In other words rights can be inherited.

According to our opinion the Islamic Shari,ah has the observing capacity where the rule applies" What is not prohibited is permitted"  &"Hardships causes giving of facilities",as such the Fiqhi literature may be seen in the lights of the above information and modern interpretation but within the limits of Islamic Law.

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