LECTURE 7 PDF - Islamic Law Capacity

II- Contracting Parties The contracting parties are the parties who express the sighah of ijab & qabul. In order to conclude a valid contract, the contracting parties must have legal capacity (ahliyyah). Definition of Ahliyyah Literally means capacity or competence. Technically, it m...

II- Contracting Parties The contracting parties are the parties who express the sighah of ijab & qabul. In order to conclude a valid contract, the contracting parties must have legal capacity (ahliyyah). Definition of Ahliyyah Literally means capacity or competence. Technically, it means “The eligibility of a person to establish right for and obligation upon himself”.  a person may not have the requisite legal capacity to conclude transactions, but he may still receive rights and obligations. A child or a lunatic person, for instance, cannot conclude contracts but are entitled to receive their share of inheritance and are obliged to pay for the necessities bought for them through their guardians. Types of Capacities Muslim jurists have therefore recognized two types of capacities: 1- Ahliyyah al-wujub or Receptive (passive)capacity 2- Ahliyyah al-ada’ or Active Capacity  Al-Ahliyah Receptive (passive)capacity Active Capacity ahliyyah al-Wujub Ahliyyat al-Ada’ 1- Ahliyyah al-wujub: it refers to the capacity of a person to receive rights and obligations. It is possessed by all living human beings.  Types of Ahliyyah al-wujub Ahliyyah al-wujub Incomplete Complete A- Incomplete receptive capacity is a type of capacity that enables a person to receive only rights but not obligations (positive). This capacity is established for a foetus. Foetus is part of the mother as it does not have an independent personality.  Foetus: is entitled to certain essential, beneficial rights: 1- a foetus has the right to be attributed to his parents. 2- He is also entitled to receive his share of inheritance. 3- He is also entitled to receive his share in a will (wasiyyah). 4- He is also entitled to receive his share in waqf. -but a foetus is entitled to these rights only when it is born alive.  B- Complete Receptive Capacity: it refers to a capacity through which a person receives rights and obligations. A person acquires this capacity after his birth and retains it until his death. The example of this is Children: They receive rights and obligations as the guardians are acting on their behalf. They can enter the contracts of sale, or gift through their guardians. They are also under obligations to pay zakat, zakat fitr or to pay for the damage which they inflicted on other properties. A child who has obtained a complete capacity to receive rights and obligation still cannot undertake contractual obligations except through his guardian. And if he does the ‘aqd is void. He is not also obliged to pray , fast or go to hajj. 2- Active (legal) Capacity (Ahliyyah al-Ada) It refers to: “The ability of a person to manage his wealth and exercise his rights and undertake obligations in a manner recognized by the Shari’ah”. - the principal elements for the capacity of performance (ahliyyah al-ada) are: - The puberty and - The intellectual standard that a person has attained. - This enables him to distinguish between useful and harmful, profitable and unprofitable things or transactions.  ‘Types of Ahliyyah al-Ada’ Incomplete Complete A- Incomplete Active Capacity: a child between the age of eight and the age of puberty (age of puberty is 15 according to majority) - He has an incomplete capacity to attain rights and responsibility. - A child in this age group is called sabi al-mumaiyz or a child who could distinguish between good and bad.  According to the Shafiis and Hanbalis a distinguishing child does not have the requisite capacity. Therefore, he cannot enter any contract with or without the permission of his guardian. His guardian instead may conclude contracts on his behalf. Hanafis and the Malikis: his contract is of 3 types. 1-Beneficial ‘aqd is valid (to receive gift or will) 2- ‘aqd that causes loss to him even with his guardian’s permission is void. I.e. Talaq, give gifts or become a guarantor for another person’s debt. 3- ‘aqd that may cause either benefit or loss; i.e. sale, hire it depends on the approval of the guardian. B- Complete Active Capacity: Complete capacity is the capacity that enable a person to acquire rights and responsibilities. He can enter to any ‘aqd without the need to get any one’s approval. (Baligh/Major). - the principal elements for the complete active capacity are the puberty and the intellectual standard that a person has attained. - This enables him to distinguish between useful and harmful, profitable and unprofitable things or transactions.  Signs of Puberty and Prudence: ▪ puberty and Prudence is a hidden phenomenon. The scholars, therefore, rely on age a determining factor, which could establish them: ▪ According to the Hanafis, the age of majority is 18 for males and 17 for females. Other scholars , it is 15 for both male and female. Every person who has reached the age of majority may enter contracts of sale and purchase, rent, wakalah, partnership....  Obstacles to Capacity It refers to “a situation where a person is restrained from dealing with his property”. There are some factors that may prevent a person from dealing with his own property. They could be within his power or beyond a person capacity. Disqualifying Factors from Contact 1- Insanity (‫)جنون‬: where a person’s mental capability is affected. Consequently, this affects his ability to make a rational decision. All contracts concluded by an insane person are invalid. A transaction made by a person who is not continuously insane in his state of sanity is considered as valid. 2- Idiocy ( ma’tuh): where a person is inconsistent in his decisions and behaviours, which may change from time to time His status is the status of a child who could distinguish between good and bad. He may perform contracts, which are in his interest, without seeking permission from his guardian. He could not enter contracts that are harmful. He may enter contracts that fall between these two extremes with the permission of his guardian. 3- Unconsciousness ‫غيبوبة‬: it is a disease of mind or heart which may weaken or suspend a person’s power to think. Such a state could be compared with sleeping. Sleeping however is a natural state, but unconsciousness is not. A contract made by such a person is not valid.  4- Sleeping: person’s mind becomes in its lowest level of activity. He is not conscious of what is occurring around him. the contracts performed by a sleeping person are not valid. 5- Intoxication ‫س ْكر‬ ُ ‫ال‬ Intoxication prevents a person from distinguishing what is good and bad or beneficial and harmful. Intoxication could either be caused voluntarily (person choice and within his control) or involuntarily (beyond one’s control). Voluntary intoxication could be caused by wilfully taking intoxicants. Involuntary intoxication, could be caused by consuming certain medicines or taking anaesthetic or when a person is forced to take intoxicants.  2 views pertaining the contract of whom intentionally takes intoxicants: 1-The Malikis and Ibn Taymiyyah and Ibn Qayyim: All contracts of such a person not valid. Reason: intoxication whether voluntary or involuntary takes away a person’s rational power to make a proper decision. 2-The majority of the Fiqh Schools: contracts of a person intoxicated involuntary are not valid. if intoxication is caused wilfully, the contracts entered are valid. Reason: this could serve as a sort of punishment to a person who voluntarily weakened his rational power. 6-Prodigality (Sufha): Sufha refers to a situation where a person’s financial decisions or activities run contrary to the guidelines of Shari’ah and reason. A safeh is a person who is wasting or spending his wealth improperly. A person who could easily be deceived is considered as a safih. The opposite of sufha is rushd which refers to the maturity of mind. Rashid is a person who could manage his wealth properly and is not involved in extravagance. Only a court can ascertain who is safih. A person declared as safih judge would become his guardian. The father or grandfather of a spendthrift person has no right of guardianship over him. His commercial transaction could not be executed unless the judge is satisfied and approve it. Types of Sufha : 2 types: 1- Those who have become adult but are still safih. He is not allowed to deal with his property himself. He would be under the supervision of a guardian. According to Imam Abu Hanifah: after reaching the age 25 year his property should be returned to him. Reason: because when a person reaches this age, he would attain maturity of mind. According The majority: The prevention may continue until the age he attain maturity of mind. 2-Those who after attaining maturity of mind becomes safih. Imam Abu Hanifa : no prevention could be imposed on such persons. The majority Imam Abu Yusuf and Imam Muhammad Al-Shaibani: He may still be declared safih even if he has attained maturity of mind; if it is proven that he misappropriates his property or spends it in ways that are unlawful or improper. 7- Insolvency or Bankruptcy ‫اإلعسار أو اإلفالس‬ When a debtor’s debts are equal to or exceed his assets, he is considered an insolvent or bankrupt person. On the application of the creditors, the court may declare the debtor as insolvent to prevent him from transferring his property in favour of others through gifts or may make admission of new debts. Once a person is declared insolvent, he cannot enter transactions that would reduce his assets. For instance, he cannot create waqf, or make a gift, or sell a property for a lower price. - Insolvent’s transactions are not valid unless approved by the court or the creditors. - The court then sells his property and divides the proceeds among his creditors. How the court makes distribution? The court begins by paying cash if the debtor has any. If it is not sufficient the court may sell debtor’s movable properties (‘urudh) such as jewelleries, car, and other valuable things. As a last resort the court may sell his immovable properties such as house and land.  According to Imam Abu Hanifah: The debtor should not be restrained from disposing his asset even if his debts are equal or more than his asset. Reason: The debtor has full rational capacity and does not suffer from any impediment that would prevent him from dealing with his wealth. According to him imposing restraints on a debtor would go contrary to human dignity and would deprive him of his right over his wealth. Solution: The debtor should be ordered by a court to settle his debts failing which he could be forced or imprisoned to sell his property himself and to settle his debts.  The majority of the Fiqh Schools and Imam Abu Hanaifah’s two disciples do not agree. They argue that on the application of the creditors a judge may declare a debtor as an insolvent, sell his assets and settle his debts. 8-Mortal illness (maradh al-mawt): Mortal illness refers to an illness which will lead a person to strong probability of death. This usually happens when the disease gets worse from day to day until death ensues. Mortal illness also includes situations in which people fear death, although they may not be sick, as when a person is sentenced to death. A person who suffers from mortal illness may make certain contracts: waqf charity, or make gift of his property to some of his heirs or non-heirs. Some of his dispositions may cause injustice to his legal heirs and the creditors To protect the interests of his legal heirs and creditors Islamic law, applying the rule of wasiyyah, has limited his dispositions to one-third of his wealth. For example, a person who suffers from mortal sickness may give a part of his wealth as a gift to one of his heirs. After his death if the other heirs do not agree, the gift is not valid. A gift to a non-heir is valid and does not need the approval of the heirs provided the gift does not exceed one-third of the asset.