Podcast
Questions and Answers
What is the primary concern of guardianship over a person?
What is the primary concern of guardianship over a person?
According to Shari'ah, who is the natural guardian of a child's person and property?
According to Shari'ah, who is the natural guardian of a child's person and property?
Who derives authority from Shari'ah to enter into a contract on behalf of another?
Who derives authority from Shari'ah to enter into a contract on behalf of another?
What is a necessary condition for a guardian to be appointed in Islamic law?
What is a necessary condition for a guardian to be appointed in Islamic law?
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What is the term for a person who authorises another to conclude a certain transaction on their behalf?
What is the term for a person who authorises another to conclude a certain transaction on their behalf?
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Who can release themselves from guardianship?
Who can release themselves from guardianship?
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What is the main difference between a guardian and an agent in Islamic law?
What is the main difference between a guardian and an agent in Islamic law?
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What is the legal consequence if a guardian violates the conditions of guardianship?
What is the legal consequence if a guardian violates the conditions of guardianship?
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When does guardianship over a minor typically end?
When does guardianship over a minor typically end?
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Who are also in need of guardianship?
Who are also in need of guardianship?
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What is the purpose of wakalah (agency) in Islamic law?
What is the purpose of wakalah (agency) in Islamic law?
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What happens to the guardianship of a lunatic or an idiot who reaches the age of majority?
What happens to the guardianship of a lunatic or an idiot who reaches the age of majority?
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What is the characteristic of a wakalah (agency) contract in Islamic law?
What is the characteristic of a wakalah (agency) contract in Islamic law?
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Why may a person need to appoint an agent in Islamic law?
Why may a person need to appoint an agent in Islamic law?
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What is a key difference between a guardian and an agent in terms of payment?
What is a key difference between a guardian and an agent in terms of payment?
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What is a type of agency mentioned in the text?
What is a type of agency mentioned in the text?
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What happens when a person becomes prodigal after attaining the age of majority?
What happens when a person becomes prodigal after attaining the age of majority?
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What is a condition for a guardian to have?
What is a condition for a guardian to have?
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What is a right of a guardian?
What is a right of a guardian?
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What is a responsibility of a guardian?
What is a responsibility of a guardian?
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What is a characteristic of a guardian?
What is a characteristic of a guardian?
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Who has the power to declare a person as prodigal?
Who has the power to declare a person as prodigal?
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What is a limitation of a guardian's authority?
What is a limitation of a guardian's authority?
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What is not a reason for guardianship?
What is not a reason for guardianship?
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Study Notes
Guardianship and Agency
- A guardian cannot enter into a contract with the ward, buy or rent their property, or sell/rent their own property to the ward.
- If a guardian violates these conditions, the judge may remove them or appoint a co-guardian.
Agency (Wakalah)
- Literally means "protection delegation or authorization and representation"
- Legally, it's a contract where a competent person authorizes another competent person to perform a specific legal action on their behalf
- The agent (wakil) establishes contractual and commercial relations between the principal (asil/muwakkil) and a third party, and may receive a commission
- The contract of wakalah is non-binding
Necessity of Agency
- People need agents due to:
- Lack of specialized knowledge or expertise
- Distance or travel constraints
- Time constraints or inability to personally attend to business transactions
- Political agency (wakil rakyat) where collective decision-making is impossible
Comparisons Between Guardianship and Agency
- In guardianship, one party lacks legal capacity, while in agency, both parties have legal capacity
- A guardian is appointed by law, while an agent is appointed by the principal
- A guardian and ward should have the same religion, but a Muslim principal may appoint a non-Muslim agent
- A guardian is usually not paid, while an agent is entitled to their commission
Authorisation/Delegation of Authority
- A party to a contract must have complete capacity of performance and authority to enter into the contract
- Authority can be derived from Shari'ah or an agreement
- In guardianship, authorization is granted by Shari'ah, while in agency, the principal grants authority to the agent
Guardianship (Al-Welayah)
- Literally means "help and assistance"
- Technically, it's an authority granted by Shari'ah to a person over another's person and property
- Two types of guardianship:
- Guardianship over a person: concerned with education, medical care, and marriage
- Guardianship over property: concerned with protection, management, and investment of the ward's property
Who Needs Guardianship?
- A minor needs guardianship from birth until reaching the age of majority
- A father is the natural guardian of his child's person and property
- A lunatic, idiot, or prodigal person needs guardianship
- A judge or appointed guardian assumes guardianship over a person who becomes lunatic or idiot after reaching the age of majority
Conditions for Guardianship
- A guardian must:
- Have complete capacity to perform
- Be a Muslim (a non-Muslim cannot be the guardian for a Muslim ward)
- Be just and pious
- Have authority and decision-making capacity
- Protect, manage, and invest the ward's property
- Spend on the ward's maintenance with moderation
- Ensure the ward's interests are protected in financial dispositions
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Description
This quiz covers the laws and regulations regarding guardianship for individuals who become incapacitated or prodigal after reaching the age of majority. Learn about the role of judges and guardians in such cases.