3. REFERENCES ISB542 (1) (2).pdf

# Introduction to Fiqh and its Components This section explores the fundamental concepts of Fiqh, its origin within Islam, its primary components, and its distinct characteristics when compared to human-made legal systems. ### 1.1 The meaning of Islam The word "Islam" originates from the Arabic root word "salima," which signifies submission, peace, and safety. It fundamentally entails the submission of oneself to Allah (God) and the act of obeying and fulfilling all His commands. For instance, a follower of Islam is referred to as a Muslim. The pursuit of this life is considered a preparation for the hereafter, as stated in the proverb: "this world is the cultivation field for the hereafter". Islam is also characterized as a complete and indivisible way of life that should be embraced wholly by Muslims, encompassing every aspect of their existence [4](#page=4) [5](#page=5). ### 1.2 The main components of Islam Islam is fundamentally composed of three core components: Aqidah, Shari'ah, and Akhlak. These are often visualized with Islam as the overarching concept, encompassing these three pillars [6](#page=6) [7](#page=7). #### 1.2.1 Aqidah (faith and belief) The term "Aqidah" is derived from the Arabic word "aqada," meaning to tie or knot, signifying a contract that strongly binds and is deeply rooted in a person's heart. It represents strong beliefs held in the heart towards Allah Almighty and His Prophet. The foundation of Aqidah is built upon six pillars: faith in Allah, the angels, the divine scriptures, the Prophets, the Day of Judgment, and destiny [8](#page=8). #### 1.2.2 Shari'ah (practices and activities) Literally, "Shari'ah" means the road to watering places or the path to be followed, representing a set of rules that define the life path Muslims must adhere to. It covers all behavioral, spiritual, mental, and physical aspects of life. Technically, it refers to the law of Allah that He commands to mankind. Shari'ah principles extend beyond mere law, encompassing a total way of life. It can be categorized into "Muamalah Ammah," which concerns the practices of a person's life in relation to others and other creatures, including areas like marriage and divorce (Munakahat), criminal law (Jinayah), economic activities (Muamalat), governance, and personal and public law [9](#page=9). #### 1.2.3 Akhlak (moralities and ethics) "Akhlak" refers to one's attitude or behavior, often associated with "ihsan". The Prophet Muhammad (peace be upon him) stated that "Ihsan is such a state that you worship Allah as if you see Him, but since you do not see Him, then know that He is seeing you". Akhlak is considered the ultimate goal behind the mission of the Prophet Muhammad (peace be upon him). It encompasses the relationships between man and man, man and Allah, and man with other creations [10](#page=10). #### 1.2.4 Muamalah/Ibadah These terms are related to the practical aspects of Islamic life. "Ibadah" is derived from the word "abd," meaning servant or slave, thus signifying servitude and slavery to Allah. It concerns the practicalities of worship to Allah in every aspect of our lives. Allah states, "And I (Allah) created not the jinn and mankind except that they should worship Me (alone)" (Quran 51:56). "Muamalah" refers to dealings and transactions among people [11](#page=11) [15](#page=15). ### 1.3 Classification of Fiqh Fiqh is broadly classified into two main categories: Ibadah and Muamalat [15](#page=15) [16](#page=16). #### 1.3.1 Fiqh Ibadah This category covers rulings that govern the relationship between man and Allah, often termed "hablun minallah". It includes rulings related to prayer (Solah), fasting (Saum), almsgiving (Zakat), and pilgrimage (Hajj). For "Ibadah Ammah" (general worship), four conditions generally apply: sincerity, hard work, adherence to Shari'ah rules (Islam-approved), and fulfillment of responsibilities in performing "ibadah khassah" (specific worship) [15](#page=15) [16](#page=16). #### 1.3.2 Fiqh Muamalat This category deals with relationships among fellow mankind, known as "hablun minannas". It encompasses areas such as family law, commercial transactions, management of state finances, administration of justice, the rights of non-Muslims in an Islamic state, the political system, criminal law, and other legal domains [15](#page=15) [16](#page=16). ### 1.4 Islamic law and man-made law: A comparison Islamic law (Shari'ah and Fiqh) and man-made law exhibit significant differences in their sources, creation, and adaptability. #### 1.4.1 Comparison of Ibadah and Muamalat principles In the realm of Ibadah, the general principle is prohibition unless there is clear evidence of permissibility. For example, specific forms of prayer and pilgrimage are detailed. The evidence for Ibadah is primarily found in the Quran and Sunnah, with obligations remaining largely unchanged, barring minor exceptions (rukhsah). Conversely, in Muamalat, the principle is permissibility unless there is clear evidence of prohibition. Examples include sales, purchases, and Islamic banking. Muamalat principles are generally broad and universal, allowing for adaptation based on the circumstances and needs of society across different times and places, such as renting a house [17](#page=17). #### 1.4.2 Distinction between Shari'ah and Fiqh Shari'ah has a wider meaning and encompasses all human actions, whereas Fiqh is narrower, dealing with what are commonly understood as legal acts. Shari'ah is laid down by Allah and His Prophet, while Fiqh is erected by human endeavor. Shari'ah involves various grades of approval and disapproval, while Fiqh determines whether an action is legal or illegal, permissible or not permissible. Shari'ah deals with Islamic teachings per se, including doctrine, morals, and practical matters, whereas Fiqh pertains specifically to what is known as the legal system [18](#page=18). #### 1.4.3 Comparison between Islamic Law and Man-made Law The sources of Islamic law are the divine revelations of the Holy Quran and the Sunnah, while man-made law derives from human traditions, customs, experience, experiments, or precedent rulings. Islamic law is created by Allah, whereas man-made law is created by humans. The fundamental principles within the Quran regarding areas like Ibadah, inheritance, marriage, divorce, and hudud remain fixed, preserved, and unchanging forever. In contrast, man-made law, particularly "furu'" (secondary rulings) based on societal benefit (maslahah), is flexible, evolving, and open to alteration and amendment, making it nearly impossible to achieve perfection [19](#page=19). ### 1.5 Relationship between Shari'ah and Fiqh The relationship between Shari'ah and Fiqh is akin to that of a general concept and its specific manifestation. Fiqh is considered a component of Shari'ah, much like a body comprises parts like hands, eyes, and legs. Shari'ah represents the entire body of revealed injunctions found in the Quran and Sunnah, while Fiqh constitutes only one part of it. Shari'ah is the comprehensive divine law and values given by Allah, and Fiqh refers to the laws, or rather the jurists' opinions on laws, extracted from the sources of Islamic law [20](#page=20). --- # Sources of Fiqh and Syariah This section details the primary and secondary sources of Islamic law, explaining their definitions, categories, and significance in deriving rulings [22](#page=22) [23](#page=23). ### 2.1 Primary Sources of Syariah The primary sources of Syariah are those on which there is general agreement among jurists and which are considered definitive evidence (`dalil qat’i`) [23](#page=23) [25](#page=25). #### 2.1.1 Al-Qur'an * **Literal Meaning:** Reading or recitation [26](#page=26). * **Technical Meaning:** The revealed words of Allah in Arabic, conveyed to Prophet Muhammad (peace be upon him), serving as divine argumentation [26](#page=26). * **Significance:** It is considered the most authoritative guide for Muslims and proof of Prophet Muhammad's prophethood (`Mu’jizat`). The Quran contains fundamental directives and instructions from Allah [25](#page=25) [26](#page=26). #### 2.1.2 Al-Sunnah * **Literal Meaning:** Method [25](#page=25). * **Technical Meaning:** Anything originating from Prophet Muhammad (peace be upon him), encompassing his conduct, sayings, and tacit or explicit approvals. Its authority is derived from the Quran, which states, "For you the life of the Prophet is a model of behaviour" (33:21) [25](#page=25) [27](#page=27). * **Classification of Al-Sunnah:** * **By Category:** * `Qauliah`: Sunnah by words [28](#page=28). * `Fi’liah`: Sunnah by actions [28](#page=28). * `Taqririyah`: Sunnah by agreement (tacit or explicit approval) [28](#page=28). * **By Ruling:** * `Wajib`/Obligation [28](#page=28). * `Sunat`/Recommended [28](#page=28). * `Haram`/Prohibition [28](#page=28). * **Functions of Sunnah in Relation to the Qur'an:** 1. Explains and further elaborates on the meanings of the Qur'an [29](#page=29). 2. Supports rulings already stated in the Qur'an [29](#page=29). 3. Acts as an independent source of Islamic law [29](#page=29). ### 2.2 Secondary Sources of Syariah Secondary sources are those where some disagreements among jurists may exist [23](#page=23) [35](#page=35). #### 2.2.1 Ijma' (Consensus of Opinion) * **Definition:** Technically, the consensus of the jurists of a specific period over a religious matter [30](#page=30). * **Significance:** It signifies the importance of delegated legislation for the Muslim community, enabling the implementation of Islamic Shariah to address practical problems. The Prophet (peace be upon him) stated, "The Muslim (majority or main body) will never agree on a wrong matter." [30](#page=30). * **Conditions for Validity:** * Must occur after the Prophet Muhammad (peace be upon him) [31](#page=31). * Must be among `Mujtahid` (qualified scholars) when a new issue arises and a number of scholars are available [31](#page=31). * Must be unanimous (`Ittifaq`) from all `Mujtahid`, whether through verbal agreement or written consensus [31](#page=31). * **Categories of Ijma':** * `Ijmak al-qawl`: Verbal consensus of opinion [31](#page=31). * `Ijmak al-fi’li`: Consensus based on action [31](#page=31). * `Ijmak al-sukuti`: Silent consensus, where scholars do not openly object [31](#page=31). * **Examples:** * The validity of a contract for the purchase of goods yet to be manufactured (`bay al istisna'`) [32](#page=32). * The minimum period of pregnancy is six months; however, there is no `Ijma'` on the maximum period [32](#page=32). #### 2.2.2 Qiyas (Analogical Deduction) * **Literal Meaning:** To exert [33](#page=33). * **Technical Meaning:** To exert effort with a view to forming an independent judgment on a legal issue through analogy. It is a form of `Ijtihad` used to address new situations and problems by applying general principles from the Quran and Sunnah to similar existing situations [33](#page=33). * **Application:** Resorted to for problems lacking specific provisions in the Quran or Sunnah [33](#page=33). * **Tenets of Qiyas:** * `Asl`: Original problem (with an established ruling) [34](#page=34). * `Mas'alah`: New problem (requiring a ruling) [34](#page=34). * `Hukm asl`: Original ruling [34](#page=34). * `Al-Illah`: The common cause or effective reason linking the `Asl` and `Mas'alah` [34](#page=34). * **Conditions for Qiyas:** * No specific solution to the matter in the Quran or Sunnah [34](#page=34). * Must not contradict the principles of Islam [34](#page=34). * Must not contradict the contents of the Quran [34](#page=34). * Must be a strict analogy based on the Quran or `Ijma'` [34](#page=34). * **Example:** Selling Extacy pills (analogizing to other intoxicants based on their harmful and mind-altering effects) [33](#page=33). ### 2.3 Other Sources (Sources of Disagreement) These sources are used by some jurists, though not universally accepted by all [23](#page=23) [35](#page=35). #### 2.3.1 Istihsan (Juristic Preference) * **Meaning:** Known as equity in Islamic law. Literally means to approve or deem something preferable [36](#page=36). * **Technical Sense:** A method of exercising personal opinion to avoid rigidity and potential unfairness that might arise from the literal enforcement of existing law [36](#page=36). * **Examples:** * Permitting contracts for non-existing goods like `bai' salam` (forward sale), `ijarah` (leasing), and `ujrah` (hiring), which would be invalid based on strict analogy due to uncertainty [36](#page=36). * Allowing a menstruating woman (`ha'idh`) to recite the Quran, as opposed to a `janabah` (state of ritual impurity), based on the differing durations and nature of these states [36](#page=36). #### 2.3.2 Maslahah Mursalah (Consideration of Public Interest) * **Synonym:** `Istislah` [37](#page=37). * **Literal Meaning:** Benefit or interest; `Maslahah mursalah` refers to unrestricted public interest where no specific textual authority from the `Shariah` is found to validate or invalidate it [37](#page=37). * **Examples:** * Compiling the Quran into a single `mashaf` during the Caliphate of Abu Bakr [37](#page=37). * Establishing a standard coinage for Muslims, such as Umar's decree of 10 dirhams (silver) equaling 7 dinars (gold) [37](#page=37). * Introducing a second `adhan` for the Friday prayer during the time of Uthman [37](#page=37). #### 2.3.3 Istishab (Presumption of Continuity) * **Literal Meaning:** Escorting or companionship [38](#page=38). * **Technical Meaning:** The presumption that facts or rules of law and reason, whose existence or non-existence was proven in the past, continue to remain so in the absence of evidence indicating a change [38](#page=38). * **Examples:** * The `mahr` (dowry) is presumed valid as long as the marriage is valid [38](#page=38). * Clean water is presumed to remain clean until proven otherwise [38](#page=38). #### 2.3.4 Urf (Custom) * **Synonym:** `Addah` [39](#page=39). * **Literal Meaning:** That which is known (`ma'arifah`) [39](#page=39). * **Primary Sense:** That which is familiar and customary, as opposed to unfamiliar and strange [39](#page=39). * **Classification of 'Urf:** * `Qauli` or `lafzi`: Verbal custom (e.g., the terms "walad" for son, "lahm" for meat) [40](#page=40). * `Amali` or `Fi'li`: Practical custom (e.g., offer and acceptance in sale contracts through actions rather than words) [40](#page=40). * `Am`: General custom (e.g., removing shoes in a mosque) [40](#page=40). * `Khas`: Specific custom (e.g., removing shoes in Malaysia applies to houses and mosques) [40](#page=40). * `Syara'`: Religious custom (e.g., words like `solat`, `zakat`, `hajj`) [40](#page=40). * `Sahih`: Valid custom (e.g., `walimah` for a wedding) [40](#page=40). * `Fasid`: Invalid custom (e.g., pornography in cybercafes) [40](#page=40). #### 2.3.5 Qawl al-Sahabi (Opinion of a Companion) * **Meaning:** The opinion or `fatwa` of a Companion of the Prophet (peace be upon him) [41](#page=41). * **Significance:** Sunni jurists agree that the `Ijma'` of the Companions is a binding proof and the most authoritative form of `Ijma'` [41](#page=41). * **Example:** Group `tarawih` prayer in the mosque during Ramadan, as practiced during the time of Caliph Umar [41](#page=41). #### 2.3.6 Sadd al-Dhara'i (Blocking the Means to Evil) * **Princ:** Forbidding what is likely to lead to something `haram` (prohibited) [42](#page=42). * **General Principle:** * What leads to `haram` is `haram` (e.g., swearing at idols of idol worshippers, which can lead to swearing at Allah) [42](#page=42). * What leads to an obligation is obligatory (e.g., `ablution` is obligatory before prayer) [42](#page=42). * What leads to something permissible is permissible [42](#page=42). * **Sub-Principle:** Preventing harm is preferred over gaining benefit. The lesser of two evils is chosen [42](#page=42). --- # Development of Fiqh Muamalat and Major Fiqhi Schools This section outlines the historical trajectory of Islamic commercial law, tracing its evolution through distinct chronological stages and examining the foundational principles and major schools of thought that shaped its development. ### 1.4.1 Historical development of fiqh muamalat Islamic commercial transactions have been integral to Islam since its inception, with a strong connection between the faith and commerce evident in early Islamic history. The Quran describes Mecca as a significant trade center, and the Prophet Muhammad came from a commercial family. Islam views trade not merely as an exchange of goods but also as a social responsibility and an economic form of Jihad. Jurists have historically compiled extensive works on Islamic commercial transactions, with notable figures including Abu Yusuf (al-Kharaj), Al-Shaybani (al-Iktisab), Muhammad ibn Idris al-Shafie (Kitab al-Umm, al-Risalat), Ibn Hazm, and Ibn Taymiyyah. Legal manuals on market supervision were also developed, such as Kitab Ahkam al-Suq by Yahya ibn ‘Umar, Kitab fi Adab Hisbah by al-Saqati, and Ma’alim al-Qurbah fi Ahkam al-Hisbah by Ibn al-Ukhuwwah. Later, the Majallah al-Ahkam al-‘Adliyah was introduced by the Ottoman Caliphate and implemented in several Muslim states. However, the practice of Islamic commercial law, including the Majallah, was disrupted by Western colonial occupation, leading to the imposition of European legal systems in many Muslim countries. With the gaining of independence by most Muslim nations in the 15th Hijri century (19th century CE), an era of "Islamic resurgence" began, prompting a re-evaluation and recommitment to Islamic principles in governance. Economically, this resurgence is marked by the revival of Islamic economic literature, the Islamisation of economic systems (e.g., Pakistan), and the establishment of Islamic financial institutions globally. In Malaysia, for instance, Islamic banking commenced operations in 1975, with Bank Islam Malaysia Berhad (BIMB) established in 1983 and Syarikat Takaful Malaysia in 1984, positioning Malaysia as an Islamic finance hub for Southeast Asia [44](#page=44) [45](#page=45) [46](#page=46) [47](#page=47) [48](#page=48) [65](#page=65) [66](#page=66). ### 1.4.2 The evolution of fiqh The evolution of Fiqh (Islamic jurisprudence) can be broadly categorized into six distinct stages: #### 1.4.2.1 Foundation (The Era of the Prophet s.a.w., 609-632 CE) This foundational stage began with the commencement of Prophet Muhammad's prophethood around 609 CE and concluded with his demise in 632 CE. Islamic law developed in two phases [50](#page=50): * **Makkah:** Revelations primarily focused on building the ideological foundation of Islam, strengthening faith (`iman` and `aqidah`), and inscribing moral values and good character [50](#page=50). * **Al-Madinah:** This phase saw the revelation of legal injunctions, including the latter three pillars of Islam (fasting in Ramadan, paying zakah, and performing Hajj). It also included prohibitions against intoxicants, pork, and gambling, as well as punishments for adultery, murder, and theft, and rulings governing family matters, transactions, inheritance, and `jihad` [51](#page=51). The primary sources of Islamic law during this period were divine revelation in the form of the Quran and the Sunnah of the Prophet. The `ijtihad` (independent reasoning) of the Prophet during this era was not considered an independent source of law as its validity depended on divine confirmation [52](#page=52). #### 1.4.2.2 Establishment (The Era of the Khulafa’ Al-Rashidin, 632-661 CE) This period spans from the Caliphate of Abu Bakr (632-634 CE) to the death of Ali (661 CE). The expansion of the Islamic state into regions like Syria, Jordan, Egypt, Iraq, and Persia led to Muslims encountering new systems, cultures, and customs, which generated numerous new legal issues requiring resolution [53](#page=53). The problem-solving procedures of the Righteous Caliphs involved: 1. Searching for rulings in the Quran. 2. Consulting the Sunnah (sayings and actions of the Prophet), and inquiring from other companions if the Prophet had ruled on similar incidents. 3. Convening a meeting of major Sahabah (companions) to achieve a consensus of opinion. 4. Adopting the majority opinion if unanimity could not be reached. 5. The Caliph exercising `ijtihad` based on discussed views if differences were too significant to form a majority [54](#page=54). #### 1.4.2.3 Building (The Era of the Umayyad Dynasty, 661 CE to mid-8th Century CE) This stage encompasses the rise and fall of the Umayyad Dynasty, starting from the death of Ali in 661 CE and the ascendancy of Muawiyah ibn Abi Sufyan, until the dynasty's decline in the mid-8th century CE [55](#page=55). #### 1.4.2.4 Flowering (The Abbasid Era, 750 CE to 950 CE) Beginning in the second century of Hijrah (around 750 CE) with the rise of the Abbasid Dynasty and continuing until the mid-fourth century of Hijrah (950 CE), this era witnessed active state support for Islamic scholarship, fostering widespread discussions and debates. This period marked the emergence of prominent scholars who became independent `mujtahids` and established their `mazhabs` (schools of law), signifying Fiqh's development as an independent Islamic science [56](#page=56). Factors influencing the development of Fiqh during this stage included: * State support for scholars. * Increase in learning centers. * Spread of debate and discussion (freedom of speech). * Compilation of the Sunnah. * Compilation of Fiqh works. * Emergence of different schools of Islamic law [57](#page=57). #### 1.4.2.5 Consolidation (950 CE to 1258 CE) This period extends from the decline of the Abbasid Dynasty to the Mongol invasion of Baghdad in 1258 CE. It is also known as the period of `taqlid` (imitation), characterized by a decline in the pioneering legacy of Islamic scholarship from the previous stage and the emergence of factionalism [58](#page=58). **Closing and Reopening of the Door of Ijtihad:** Reasons for the closure of the door of `ijtihad` included: 1. **Factionalism:** This led to the abandonment of all forms of `ijtihad` and the evolution of `mazhabs` into distinct entities [59](#page=59). 2. **Scholarly Consensus:** Scholars believed that all possible issues had been addressed, rendering further `ijtihad` unnecessary [59](#page=59). 3. **Blind Following (`Taqlid`):** This was due to the complete formation and detailed development of Fiqh schools, the fragmentation of the Abbasid empire where states adopted specific `madhabs`, and the rise of unqualified individuals claiming the right to `ijtihad` for personal gain [60](#page=60). Despite this, some scholars advocated for the reopening of `ijtihad`, urging a return to the foundational sources of Islamic law [61](#page=61). #### 1.4.2.6 Stagnation and Decline (1258 CE to Present) Beginning with the fall of Baghdad in the 7th century Hijrah and extending to the present, this stage includes the rise and decline of the Ottoman Empire under European colonial pressure. The trend of `taqlid` persisted and became a norm among scholars and the public. However, reformers continued to call for `ijtihad`, deriving rulings from primary sources and rejecting sole reliance on the four prominent `mazhabs`. A significant development was the codification of Islamic law under the Ottoman Caliphs, most notably the Majallah al-Ahkam al-Adliyyah [62](#page=62) [63](#page=63). ### 1.5 Major fiqhi schools The existence of multiple `mazhabs` (schools of law) in Fiqh is attributed to: 1. The general nature of Shariah evidence (Quran and Sunnah), which allows for implementation and interpretation [73](#page=73). 2. The inherent diversity in human opinions and understanding [73](#page=73). The major schools of Islamic jurisprudence, primarily within Ahl Sunnah Wal Jama'ah, are: #### 1.5.1 Hanafi school * **Founder:** Imam Nu’man bin Thabit Abu Hanifah (80-150 AH) [74](#page=74) [75](#page=75). * **Characteristics:** Emphasized the use of reason and intellect over blind reliance on the Sunnah. Was the first school to be founded [74](#page=74) [75](#page=75). * **Geographical Prevalence:** Predominant in India and the Middle East [74](#page=74). * **Key Disciples:** Qadi Abu Yusuf, Muhammad al-Shaibani, and Imam Zufar [76](#page=76). #### 1.5.2 Maliki school * **Founder:** Imam Malik B. Anas (93-179 AH) [77](#page=77) [78](#page=78). * **Characteristics:** Placed significant emphasis on the practices and consensus of the people of Medina as an authentic representation of Islamic practice [77](#page=77). * **Key Works:** Author of the Muwatta', a renowned collection of hadith and jurisprudence [78](#page=78). * **Geographical Prevalence:** Primarily found in Africa [77](#page=77). #### 1.5.3 Shafi’i school * **Founder:** Imam Muhammad Idris al-Shafi’i (150-204 AH). He was a student of Imam Malik [79](#page=79). * **Characteristics:** Distinguished for his critical examination of traditions and his preference for modernization and balanced judgment. He studied in depth both Maliki and Hanafi systems [79](#page=79) [80](#page=80). * **Key Works:** Kitab al-Umm and Risalah [80](#page=80). * **Geographical Prevalence:** Predominantly found in Southeast Asia, East Africa, Yemen, Egypt, and Syria, with scattered followers elsewhere [79](#page=79). #### 1.5.4 Hanbali school * **Founder:** Imam Abu ‘Abdallah Ahmad bin Muhammad bin Hanbal, known as Imam Hanbal (164-241 AH) [81](#page=81). * **Characteristics:** Known for his high reputation as a traditionalist and theologian, adopting a strict view of Islamic law. He was a student of Imam Al-Shafi'i [81](#page=81) [82](#page=82). * **Key Works:** Musnad Ahmad, containing over 50,700 hadith [82](#page=82). * **Geographical Prevalence:** Predominantly found in Saudi Arabia [81](#page=81). > **Tip:** While the `usul` (basic principles) of Islam are unified across these schools, differences primarily emerge in the `furu’at` (detailed rulings) of theology and Fiqh [88](#page=88). ### 1.5.5 Differences among the fiqhi schools Differences in terminology and legal rulings exist among the schools, for instance, in the definition of `fardhu` and `wajib`, and the classification of `makruh` [83](#page=83). **Example of difference in `furu’at`:** > **Example:** The definition of `aurat` (private parts that must be covered) differs between the Hanafi and Hanbali schools for men (between the navel and knees). For women, the Hanafi school considers all except the face, hands, and two feet as `aurat`, while the Shafi’i and Maliki schools consider all except the face and hands as `aurat`, and the Hanbali school also includes the `niqab` [85](#page=85). Sources of these differences include: * Multiple meanings of Arabic words. * Variations in the narration of hadith. * Different primary and secondary sources consulted. * Divergent legal maxim methodologies. * Independent `ijtihad` and `qiyas` (analogical reasoning) [86](#page=86). **Examples of specific legal differences:** * **`Bai` bima yanquṭi` bihi si`r` (BBMYS):** The practice of a buyer taking a daily quantity of goods and paying the market price at a later date without fixing the price upfront. The majority of jurists prohibited this due to `jahalah` (uncertainty), while the Hanbali school permitted it by analogy (`qias`) to market price, arguing it prevents disputes [87](#page=87). * **`Bai` ‘Inah`:** A form of sale often considered a legal stratagem (`hilah`) to legitimize `riba` (usury). The majority of jurists deemed it impermissible, citing a hadith from Aisha. The Shafi’i and Zahiri schools, however, viewed `bai` ‘inah` as permissible, holding that contracts are valued by what is disclosed, and intention is between the individual and Allah. They criticized the hadith used by the majority as weak [87](#page=87). The leaders of the four Sunni schools (Abu Hanifah, Malik, Shafi’i, and Hanbal) rendered significant service to Islamic jurisprudence [88](#page=88). --- # Concepts of Property, Ownership, Contracts, and Agreements in Islam This comprehensive summary delves into the Islamic legal framework concerning property, ownership, and the formation and types of contracts and agreements, drawing from provided materials. ### 4.1 The concept of property (Al-Mal) in Islam Al-Mal, in Islamic jurisprudence, refers to anything that can be owned and is useful to human beings. This definition encompasses items that are currently owned and those that have the potential to be owned. However, certain things are excluded from being considered Al-Mal [93](#page=93) [94](#page=94): * Things that are impossible to own, even if beneficial, such as sunlight or oxygen [95](#page=95). * Things that cannot be benefited from under normal circumstances, like a single grain of rice or wheat [95](#page=95). * Anything prohibited by Shari'ah, such as pork or alcohol [95](#page=95). The Quran emphasizes that Al-Mal and the universe are creations of Allah. Humans are considered trustees (khalifah) rather than absolute owners of wealth, and property is meant for the benefit of all, to be utilized equitably. The acquisition and disposal of Al-Mal must be in accordance with the Quran and Sunnah, and wasting wealth is prohibited [96](#page=96) [97](#page=97). #### 4.1.1 Classification of property in Islam Property in Islam is broadly classified into tangible and intangible assets [99](#page=99). ##### 4.1.1.1 Tangible asset ('Ayn) Tangible assets, also known as 'Ayn, are corporeal and can be further classified based on various criteria (#page=99, 100) [100](#page=100) [99](#page=99): * **Form/Position:** * **Movable Property (Manqul):** Anything that can be moved from one place to another without altering its original form or structure. This includes tradeable goods, currency, and animals . * **Immovable Property (Aqar):** Property that cannot be moved from its original place, such as land, houses, and buildings . > **Tip:** The distinction between movable and immovable property is crucial for certain legal implications, such as the applicability of *Syuf'ah* (pre-emption) . * **Permissibility/Usage:** * **Valuable Property (Mutaqawwam):** Any property that is possessed and is legal according to Shari'ah. Generally, all permissible possessed property is considered Mutaqawwam. Contracts are valid on Mutaqawwam property, and compensation is mandatory for any damage or destruction . * **Invaluable Property (Ghair Mutaqawwam):** Refers to things not possessed by anyone (e.g., fish in the ocean) or impermissible properties (e.g., pork, alcohol, income from gambling or interest). However, impermissible property is considered Al-Mal for non-Muslims . * **Similarity/Value:** * **Homogeneous Property (Mithly):** Property that has insignificant differences in appearance or unit in the market and is typically sold by weight, measure, or count (#page=119, 120). Examples include wheat, rice, cotton, fruits, and fabrics (#page=120, 121) . * **Heterogeneous Property (Qimiy):** Non-substitute goods in the market or goods with substitutes but different values, such as land, houses, gems, and antiques . > **Tip:** The distinction between Mithly and Qimiy property affects liability for debt repayment and compensation for damages. Exchange of Mithly property can lead to *Riba* (interest) if there is an excess, unlike Qimiy property (#page=123, 125) . * **Consumption:** * **Consumable Property (Istihlaky):** Anything that can only be used by changing or destroying its original form, such as food and drink . * **Usable Property (Isti'maly):** Anything that can be used without changing its original form or structure, such as a house or a car . > **Tip:** Contracts related to usable property, like renting, leasing, and borrowing, differ from those for consumable property . * **Status of Property:** * **Al Mal Al Mamluk:** Property that is owned by an individual . * **Al Mal Al Mubah:** Property that is permissible for general use or is ownerless . ##### 4.1.1.2 Intangible asset (Unseen/Ghair 'Ayn) Intangible assets do not have a physical form and are also considered property in Islam. These include [99](#page=99): * **Rights (Haq):** Authority recognized by Shari'ah that belongs to someone (#page=131, 132). Rights can be categorized as rights of Allah (e.g., prayer), rights of human beings (e.g., maintenance), or joint rights. Jurists classify rights into those resting on property (e.g., inheritance) and those not resting on property (e.g., guardianship) . * **Benefits (Manfaah):** Something that is beneficial to humans, derived from movable or immovable property, such as rental income or the usufruct of a gift (#page=131, 134). Benefits are considered part of the property itself and are classified under incomplete ownership . > **Note:** There is a difference of opinion among jurists on whether benefits (*Manfaah*) are considered Al-Mal. The Hanafi school views them as not being Al-Mal and thus not inheritable, leading to the termination of related contracts upon expiry, damage, or death of a party. Other schools consider *Manfaah* as Al-Mal . Methods of acquiring benefits include borrowing, *Ijarah* (renting/leasing), *Waqf* (endowment), *Wasiyah* (bequest), and *Ibahah* (permission) . ##### 4.1.1.3 Intellectual Property Defined by the World Intellectual Property Organization as all rights resulting from intellectual activity in industrial, scientific, literary, or artistic fields. This includes literary, artistic, and scientific works, inventions, trademarks, and other creations. The majority of jurists consider intellectual property as Al-Mal, recognizing concepts like authorship and trademarks. Intellectual property can consist of an original source (*asl*) and its results (*thamarah*), which can be transacted separately. However, selling intellectual property does not typically transfer ownership of the right itself, with the buyer acting as a trustee . ##### 4.1.1.4 Money (Dinar/Fulus) Money is defined as a generally accepted medium of exchange and a store of value. Ibn Khaldun identified gold (dinar) and silver (dirham) as fulfilling these functions. Money is not a commodity with inherent value that accrues interest (*Riba*); its pricing is subject to *Riba* prohibition. Fiat money functions as a medium of exchange but not necessarily as a just store of value. The exchange of money with other *Ribawi* items (gold, silver, etc.) requires equal amounts and immediate hand-to-hand transaction (#page=153, 154) . ##### 4.1.1.5 Debt (Dayn) Debt is not explicitly detailed in terms of its classification as property in the provided text, but it is listed as a category of asset [99](#page=99). ### 4.2 The concept of ownership (Al-Milk) in Islam Ownership in Islam refers to the connection between a person and a thing or property that is under their exclusive control and disposition. In a broader sense, it is the power of exclusive control and disposition. According to the Mejelle, ownership encompasses both the physical property ('ayn) and its benefit (manfaah) or both . Islam posits that absolute ownership belongs to Allah as the creator of the universe. Humans are trustees of property, and their individual ownership rights are legally recognized and protected within the limits set by Islamic law (#page=162, 163). This implies that ownership in Islam is not absolute and has limitations . #### 4.2.1 Classification of ownership Ownership is classified in two primary ways: ##### 4.2.1.1 Classification by type of ownership * **Private Ownership:** Property owned by individuals . * **Community Ownership:** Property owned by a group or community . * **State Ownership:** Property owned by the state . ##### 4.2.1.2 Classification according to proprietary rights and extent of use granted * **Complete/Total Ownership (Milk al-Tam):** This is the ownership of both the property ('ayn) and its usufruct (benefit/manfaah). It grants the owner all possible rights associated with the property, is unconditional, and has no time limit unless voluntarily transferred (#page=168, 169). If the owner destroys or damages the property, no compensation is prescribed from them for that destruction . Methods of acquiring *Milk al-Tam* include: * *Mubah* property (ownerless property allowed by Shari'ah) through effort, such as cultivating land (*Ihya' al-Mawat*), hunting, mining (#page=171, 172, 173) . * Contracts that transfer ownership, such as *'Uqud al-Tabarru'at* (without consideration, e.g., *Hibah*, *Wasiyah*) and *'Uqud al-Mu'awadat* (with consideration, e.g., *Bay'* contract) . * Inheritance . * Compensation/indemnity (e.g., *diyat*, insurance) . * By-products (e.g., calf of a goat) . * **Incomplete/Partial Ownership (Milk al-Naqis):** This refers to the ownership of the property but not its usufruct, or vice versa. The owner does not have absolute control, and the ownership may not be transferable (according to Hanafi views). The ownership is often restricted by time . Types of *Milk al-Naqis* include: * **Milk al-'ayn (Ownership of the property alone):** Ownership of the object but not its usufruct. The property may be owned by one person, and its usufruct by another (e.g., landlord and tenant) (#page=180, 182). This can occur when a property is leased, mortgaged, or bequeathed for usufruct . * **Milk al-Manfaah (Personal Usufruct Ownership):** Ownership of the benefit but not the physical form of the property (#page=180, 183). This can be established through a simple loan, lease (*Ijarah*), endowment (*Waqf*), will (*Wasiyah*), or permission (*Ibahah*). *Milk al-Manfaah* may be restricted spatially, temporally, and in characteristic. The Hanafi school holds that *Milk al-Manfaah* cannot be inherited and is not considered property itself . #### 4.2.2 Milik al Manfaah (Haq al Intifa’) *Haq al Intifa'* refers to the right to use or benefit from a property and is a form of incomplete ownership (#page=158, 185) . ##### 4.2.2.1 Types of Haq al Intifa’ * **Haq al Syakhsi (One party):** A personal right of use granted to a single individual. Examples include: * Simple loan . * Lease (*Ijarah*) . * Endowment (*Waqf*) . * Will/Bequest (*Wasiyah*) . * Permission (*Ibahah*) . * **Haq al Irtifaq (Sharing/Easement Rights):** Legal forms of partial ownership involving shared rights attached to immovable property, affecting its market value (#page=185, 186). These arise from public sharing, modernization/development, or contractual statements . The Hanafi school enumerates six main types of easement rights: * **Haq al-shurb (water rights):** An allotted amount or time for water usage, including drinking rights for humans and animals . * **Haq al Murur / al tariq (passage rights):** The right of passage, subject to public or private road regulations, safety, and avoiding harm . * **Haq al Majra:** The right of a property owner to access water pipes or canals passing through another's land for usage, with the owner being liable for maintenance . * **Haq al Masil:** Related to water drainage, allowing used water to be discharged into common drains . * **Haq al Jiwar (horizontal neighborhood rights):** Easement rights between immediate horizontal neighbors, provided no harm is caused . * **Haq al Taali (vertical neighborhood rights):** Rights of neighborhood in multi-storey properties, where the upstairs neighbor has rights related to the structure of the downstairs neighbor's property . #### 4.2.3 Methods of acquisition for Milk Al-Tam and Milk An-Naqis Methods for acquiring *Milk al-Tam* include *Mubah* property, contracts, inheritance, compensation, and by-products [171-175](#page=171-175). Methods for acquiring *Milk al-Manfaah* (a type of *Milk al-Naqis*) include loan, lease, endowment, will, and permission . ### 4.3 Contracts and Agreements in Islam Contracts and agreements are fundamental to commercial transactions in Islam, serving as the primary means of transferring ownership and establishing legal relationships (#page=210, 216) . #### 4.3.1 Definition of contract ('Aqd) Literally, 'Aqd means to tie, fasten, or bind tightly, forming a strong connection. In Islamic law, it is defined as an obligation resulting from an offer by one party and an acceptance by another, with a legal effect expressed on the subject matter. The Mejelle describes it as contracting parties obligating themselves to a matter by combining an offer with an acceptance . Unlike Western jurisprudence, Islamic law's 'Aqd does not necessarily require agreement in the sense of mutual consent for all juridical acts, nor does it strictly necessitate consideration (e.g., gratuitous loans, gifts, wills are recognized) . #### 4.3.2 Formation of Contract and Agreement * **Agreement (Consensus in Idem):** Refers to the concurrence of two wills on a common matter (subject matter, consideration, cash/deferment), evidenced by acts or communication understood by both parties. By itself, an agreement may not have legal effect and is distinct from a contract, though it is a prerequisite for a valid contract (#page=230, 231) . * **Contract:** An agreement that fulfills essential elements and produces a legal impact. The formation of a contract under Islamic law generally does not require formality, only a declaration of consent by both parties and the fulfillment of certain elements (#page=234, 244) . #### 4.3.3 Pillars and Conditions of Contract The pillars or essential elements of a contract, according to jurists, are generally: 1. **Sighah al-'Aqd (Declaration of Consent):** This comprises the offer (*Ijab*) and acceptance (*Qabul*), representing the mutual consent of the contracting parties (#page=242, 245, 250). Consent must be manifested through speech, writing, conduct, or signs (for the mute), depending on the juristic school [251-254](#page=251-254). The contract must take place in a single session (*Majlis al-'Aqd*) without significant interruption in time or place . 2. **Al-'Aqdān (Contracting Parties):** These are the offeror and the offeree who must be legally competent (#page=242, 248, 258). Competency (*Ahliyyah*) is categorized into *Ahliyyah al-Wujub* (capacity for acquisition of rights) and *Ahliyyah al-Ada'* (capacity for execution of rights), each with complete and incomplete levels [259-264](#page=259-264) . * **Ahliyyah al-Wujub al-Kamilah:** Complete capacity for acquisition after birth and before puberty . * **Ahliyyah al-Wujub al-Naqisah:** Incomplete capacity for acquisition, applicable to a fetus . * **Ahliyyah al-Ada al-Kamilah:** Complete capacity for execution upon reaching puberty and wisdom (*Rushd*) [275-277](#page=275-277. * **Ahliyyah al-Ada al-Naqisah:** Deficient capacity for execution, applicable to minors with some discretion or mentally retarded individuals . 3. **Mahal al-'Aqd (Subject Matter):** This refers to the property or wealth that is the object of the contract (#page=242, 248, 287). The subject matter must meet several conditions : * **Existence:** It must exist at the time of the contract . * **Legally Owned:** It must be legally owned by the seller . * **Beneficial:** It should bring a significant benefit to the contracting parties . * **Commercial Value:** It must have commercial value recognized by Shari'ah (*Mal al Mutaqawwam*) . * **Lawfulness:** It must be permissible to trade according to Islamic law, public order, and morality . * **Deliverability:** It must be capable of certain delivery . * **Precise Determination:** It must be precisely determined in terms of essence, quantity, and value . #### 4.3.4 Classification of Contracts Contracts are classified based on their nature and legal consequences: ##### 4.3.4.1 Classification by nature * **Unilateral Contract (Al-'Aqd Infiradi):** Gratuitous in character, not requiring the consent of the recipient, and binding on the offeror until accepted (e.g., gift, will, loan) [306-308](#page=306-308). The Hanafi school opposes the strict concept of unilateral contracts due to *al-Gharar* (uncertainty) . * **Bilateral Contract (Al-Aqd al-Thuna'i):** Requires the consent of at least two parties, with both parties promising to do something for each other (e.g., sale, lease) [313-316](#page=313-316. * **Quasi Contract (Shibh al-'Aqd):** Not a true contract but gives rise to obligations similar to a contract, often enforceable by law to restore rights (e.g., recovering money paid by mistake) [320-322](#page=320-322. * **Joint Contract:** Entered into by a group of people to own or buy . ##### 4.3.4.2 Classification by legal consequences * **Valid (Sahih):** Fulfills all essential elements and necessary conditions. It is effective and binding on parties, leading to the transfer of ownership if applicable (#page=326, 327) . * **Voidable/Invalid (Fasid):** Lawful in substance (offer and acceptance) but unlawful in description or characteristics (e.g., duress, fraud, unknown price) (#page=328, 329). These contracts do not transfer property, create obligations, or rights, and often need revocation or rectification (#page=330, 331) . * **Void (Batil):** Lacks one or more essential elements or conditions, making it bad in foundation. It has no legal effect and cannot be validated by consent (e.g., contract for liquor by Muslims, contract by a minor, unlawful consideration) [332-337](#page=332-337). * **Binding (Lazim):** A sound contract without defects, which can be irrevocable (e.g., marriage) or revocable (e.g., Wakalah, Sharikah) [338-341](#page=338-341). * **Enforceable (Nafidh):** A contract that does not involve the rights of a third party and is always enforceable . * **Withheld (Mawquf):** A contract whose legal consequence is pending until validated by the owner, often involving a *Fuduli* (one acting without owner's consent) (#page=343, 344) . * **Unenforceable (Ghair Nafid):** Contracts that are permanently or temporarily unenforceable . Impediments to a valid contract can arise from the contracting parties (e.g., lack of capacity), the *Sighah* (e.g., mistake, duress, fraud), or the subject matter (e.g., *Gharar*, *Jahalah*, *Riba*) . --- # Impediments to Valid Contracts and Contract Classifications This topic outlines the factors that can render a contract invalid in Islamic law, categorizing them based on the contracting parties, the offer and acceptance (Sighah), and the subject matter, and also discusses contract classifications based on their legal consequences . ### 5.1 Impediments regarding contracting parties These impediments relate to the legal capacity of the contracting parties, potentially disqualifying them, reducing their qualification, or altering the rulings regarding their capacity. Impediments are broadly categorized into two types: natural causes (Samawiyyah) and acquired causes (Muktasabah) . #### 5.1.1 Natural causes of impediments (Samawiyyah) These are causes beyond an individual's control, stemming from natural circumstances or divine will. There are six fundamental natural causes : * **Minority (Sighar)**: Refers to the period between birth and the age of puberty. A minor is generally not liable for *hudud* punishments, *kaffarah*, worship, or financial transactions due to a lack of understanding of legal communication (*Khitab*). However, minors are liable for compensation for damages, goods/services purchased, and maintenance of relatives, and in some views, *Zakat*. The Hanafi school makes an exception for a *Sabi Mumayyiz* (a discerning minor) whose financial transactions may be valid in certain cases. Transactions that are purely harmful are void, while those purely beneficial or balanced are allowed with guardian permission or ratification . * **Insanity (Junun)**: While insanity does not affect the capacity for rights (*Ahliyyah al-Wujub*), it negates the capacity for obligations (*Ahliyyah al-Ada*) due to a lack of reason. Insane individuals have no liability for worship or punishment, and all their transactions are void . * **Idiocy (`Atah)**: This refers to a condition where a person sometimes acts sane and at other times like a madman, possessing the mind of a child despite being an adult. The capacity of an idiot is considered equivalent to a *Sabi Mumayyiz*, who can be permitted by a guardian to undertake some transactions . * **Sleep & Fainting Fits**: These temporarily affect a person's capacity to understand, hindering normal functioning. They are relevant for worship, crimes, and torts but do not affect the capacity for rights as the human attribute remains intact. There is no liability for punishments or transactions during these states; for example, if someone causes harm while sleeping, they are only liable for compensation under tort law . * **Forgetfulness (Ghuflah)**: In this state, a person is less careful despite having full knowledge, unlike in sleep or fainting where knowledge is lacking. Forgetfulness does not affect either the capacity for rights or obligations. Legal communication becomes operative once the person remembers, and transactions are valid and enforceable . * **Death Illness (Marad al-Maut)**: This illness does not affect the capacity for acquisition or execution. The individual retains legal competency as their capacity to perform and act is affected, not their capacity to understand. Rights attached to the estate of someone suffering from *Marad al-Maut* include those of creditors (prior to all others), beneficiaries (restricted to one-third of the estate unless heirs permit more), and heirs (linked from the onset of illness) . #### 5.1.2 Acquired causes of impediments (Muktasabah) These impediments are man-made or involve human will and choice. Islamic jurists categorize these into four main types, all affecting the capacity for acquisition and execution : * **Intoxication**: Caused by consuming intoxicants, it temporarily suspends proper mental functioning. Intoxication does not change the capacity for acquisition as the basis of being human remains. A drunken person has full capacity for acquisition and is liable for destruction of life and property, and other obligations. However, legal communication is not directed at a drunken person who doesn't understand it, especially if the intoxication was caused by legal means (e.g., unknowingly or under duress to save one's life), in which case the ruling is the same as for fainting . * **Jest (Hazl)**: Occurs when a person uses words without intending their literal or figurative meanings, such as using marriage contract words without intending to marry. Jest does not affect the capacity for acquisition or obligation as it does not alter the human attribute or intellect. The Hanafi school considers transactions made in jest invalid, except for marriage, divorce, and oaths, based on a hadith stating that these three matters are serious even when jested . * **Folly (Safah)**: Means foolishness or stupidity. A foolish person is generally bound by the law and answerable for their actions. However, if they are extravagant, their property may be managed by the state for their benefit, based on the Quranic injunction to safeguard wealth for the weak of understanding . * **Duress (Ikrah)**: Involves being forced to do something without willingness. Duress does not affect the capacity for acquisition or execution as it does not impair reason or discretion, but it negates free consent and willingness. The legal effects vary: irrevocable contracts like divorce and marriage are valid under duress as they are not dependent on consent, while revocable transactions like sales and mortgages are considered *fasid* (invalid) but can be ratified after the duress ceases . ### 5.2 Impediments concerning the Sighah (Offer and Acceptance) The *Sighah* represents mutual consent, which must be free from impediments. Impediments in the *Sighah* can nullify the contract or render it non-binding. These include duress, fraud, misrepresentation, and mistake . #### 5.2.1 Duress (Ikrah) Duress is defined as compelling a person to contract without their consent through fear, involving unlawful force or threats against a person, their family, or property. There are two types: *Ikrah Mulji* (complete duress, leading to destruction of life or limb) and *Ikrah Ghair Mulji* (incomplete duress, causing grief or pain). The common principle is that no one should be bound by an agreement made under duress. Conditions for duress to be an impediment include: the capacity to implement the threat, a realistic and unlawful threat of serious injury, immediacy, and an unlawful purpose. The majority of jurists hold that duress nullifies a contract, though the Shafii school limits this to *Ikrah Mulji* . #### 5.2.2 Fraud (Tadlis/al-Taghrir) Fraud is intentional deception to induce another party into a contract, involving a false representation made with the intention of causing reliance, which leads to damages. There are three types: *Tadlis Fi'li* (actual fraud, e.g., asserting false claims about the subject matter), *Tadlis Qawli* (verbal fraud, i.e., lying), and *Tadlis bi Kitman Haqiqah* (hiding the truth, e.g., concealing defects). The majority view is that a victim of *Tadlis Fi'li* and *Tadlis bi Kitman Haqiqah* has the right to nullify the contract without compensation. For *Tadlis Qawli*, it is prohibited but only affects the contract if accompanied by grave cheating. A victim of fraud can nullify the contract, sue for damages, or use fraud as a defense. Conditions for actionable fraud include material damage suffered, cunning deceit, the other party's ignorance of the fraud, and the knowledge of fraud by one party . #### 5.2.3 Misrepresentation (Ghabn) Misrepresentation is when one part of the subject matter is not equivalent to the other, essentially a form of deceit where an item is sold for more than its market price. It is classified into *Ghabn Yasir* (trivial deception), which generally does not grant the right to nullify a contract, and *Ghabn Fahish* (grave deception), concerning a significant difference in value. Jurists have differing opinions on the effect of *Ghabn Fahish*: Hanafis believe it doesn't affect validity unless accompanied by fraud (with exceptions for certain properties), Shafii's believe it has no effect, and Hanbalis hold that it makes the contract non-binding . #### 5.2.4 Mistake (Ghalat) A mistake is an erroneous conclusion drawn from facts, often arising from ambiguous language, improper investigation, or poorly drafted documents. Mistake impedes consent if it affects the contract's subject matter, chief attributes, character, value, or legal rule. For instance, mistakenly believing a gold-plated item is solid gold, or contracting with a non-famous doctor. The nullification of a contract due to mistake depends on whether it is unilateral, mutual, or a mistake of law . * **Unilateral Mistake**: If only one party makes a mistake, the contract may be nullified if the other party knew and took advantage of it. Negligent mistakes do not make the contract voidable . * **Mutual Mistake**: When both parties err on certain facts, the claimant must notify the other party and seek court declaration of voidability. The contract is then non-binding, and the party has the right of option . * **Mistake of Law**: Occurs when contracting parties are unaware of applicable law. Islamic law generally considers ignorance of law inexcusable unless negligence is not proven. If the mistake is not due to negligence and the reason is acceptable, the right of option is granted . ### 5.3 Impediments concerning the Subject Matter The subject matter of a contract must be clearly identified and free from illegality. Impediments in the subject matter can negate its certainty and include *Gharar*, *Jahalah*, and *Riba* . #### 5.3.1 Gharar *Gharar* means uncertainty, risk, or hazard, technically defined as something whose consequence is undetermined or hidden in its manner and consequence. It is akin to gambling where the subject matter, price, or both are not determined or fixed in advance. *Gharar* is classified into *Gharar Yasir* (insignificant uncertainty) and *Gharar Fahish* (significant uncertainty). As a general principle, transactions involving *Gharar* are declared invalid, though slight or immaterial *Gharar* may not affect validity, especially for economically necessary contracts like *Bai' Salam* and *Bai' Istisna'*. Examples include gambling, short selling, and certain types of life insurance . #### 5.3.2 Jahalah *Jahalah* is a lack of knowledge in a contract, such as an unspecified element of quality, quantity, or price. While distinct from *Gharar* (where availability is unknown), jurists often use the terms interchangeably . #### 5.3.3 Riba *Riba* means increase, growth, or excess. In legal terms, it signifies a stipulated, obligatory excess in a contract of exchange. Any contract involving *Riba* is forbidden and invalid, as stated in the Quran: "Allah has permitted sale but prohibited riba." . * **Types of Riba**: * **Riba Al-Duyun (loan)**: * *Riba al-qard*: A predetermined excess over the principal loan . * *Riba al-jahiliah*: An excess demanded by the lender upon the borrower's default . * **Riba Al-Buyu' (sale)**: * *Riba al-fadl*: An excess in the exchange of similar commodities of the same kind (*asnaf al ribawiyyah*), such as gold for gold . * *Riba al-yad/al-nasiah*: An excess in the exchange of *asnaf al ribawiyyah* on a deferred basis . The prohibition of *Riba* is strongly emphasized in the Quran and Sunnah, with severe spiritual consequences for those who engage in it. It is considered exploitative, damaging to morals, and a cause of disputes . > **Tip:** Understand the distinction between *Riba* and profit. Profit is earned through legitimate trade and investment, while *Riba* is an unjust increase obtained through lending or specific exchanges. ### 5.4 Contract Classifications Contracts can be classified based on their legal consequences, including: * **Valid**: Fully enforceable and legally binding . * **Voidable**: Can be affirmed or nullified by a party with the right of option . * **Void**: Lacks legal effect from the outset . * **Binding**: Legally obligatory . * **Enforceable**: Can be legally compelled . * **Withheld**: Legal status is unclear or suspended . * **Unenforceable**: Cannot be legally compelled . Contracts can also be classified by nature, such as unilateral, bilateral, or quasi-contracts. Impediments to contracts can lead to unlawful agreements (*Aqd Batil*), particularly those involving *Riba*, *Gharar*, and *Jahalah* . ### 5.5 Islamic Rights of Option (Khiyar) *Khiyar* (option or choice) is the right granted to parties to confirm, cancel, or back down from a contract. The rationale includes providing a reassessment period, reducing uncertainty and deceit, and correcting agreements with defects. Options are categorized as created by mutual consent or by operation of law . #### 5.5.1 Options Created by Mutual Consent * **Khiyar al-Majlis**: The option to confirm or reject within the meeting session until the parties part. There is scholarly disagreement on whether this option is binding . * **Khiyar al-Shart**: The option to confirm or cancel within a specified time period, agreed upon by the parties. The duration and applicability of this option have scholarly debate . * **Khiyar al-Ta'in**: The option for deferred payment within a specified time limit . #### 5.5.2 Options Created by Operation of Law * **Khiyar al-Tadlis**: The option for misrepresentation or fraud . * **Khiyar al-Ru'yah**: The option of inspection, available when a contract is made for an item not seen by the buyer, allowing cancellation upon viewing. Conditions include the subject being specified and not previously seen . * **Khiyar al-'Ayb**: The option of defect, granting the buyer the right to cancel or seek compensation upon discovering a pre-existing defect in the purchased article. The defect must exist prior to the contract and decrease the object's value or utility . > **Tip:** Understanding the different types of *Khiyar* is crucial for analyzing contract validity and the rights of parties involved, especially in cases of defects or misrepresentation. --- ## Common mistakes to avoid - Review all topics thoroughly before exams - Pay attention to formulas and key definitions - Practice with examples provided in each section - Don't memorize without understanding the underlying concepts

| Term | Definition | |------|------------| | Fiqh | In Islam, Fiqh refers to the understanding and interpretation of Islamic law derived from its sources, encompassing a detailed knowledge of legal rulings and their application in various aspects of life. | | Syariah | Syariah is the divine law of Islam, encompassing all aspects of life, including beliefs, ethics, and legal rulings, derived from the Quran and Sunnah. | | Aqidah | Aqidah is the creed or faith in Islam, referring to the set of beliefs held by Muslims, primarily focusing on the six pillars of faith. | | Akhlak | Akhlak refers to morality and ethics in Islam, encompassing the behavior, character, and conduct of a Muslim towards Allah and His creations, often associated with Ihsan. | | Ibadah | Ibadah means servitude or worship to Allah, encompassing all acts of devotion and obedience performed by Muslims in accordance with Islamic principles. | | Muamalat | Muamalat refers to transactions and dealings among people, covering all aspects of social and economic life that govern the relationship between individuals. | | Dalil Qat'i | Dalil Qat'i refers to decisive or conclusive evidence in Islamic jurisprudence, which is generally considered to be irrefutable and forms the basis for definitive legal rulings. | | Dalil Zanni | Dalil Zanni refers to probable or speculative evidence in Islamic jurisprudence, which may be open to interpretation and different legal opinions due to its nature. | | Al-Qur'an | The Quran is the holy book of Islam, believed by Muslims to be the literal word of Allah revealed to Prophet Muhammad (peace be upon him), serving as the primary source of Islamic law and guidance. | | Al-Sunnah | Al-Sunnah refers to the traditions, practices, sayings, and approvals of Prophet Muhammad (peace be upon him), serving as the second primary source of Islamic law and a practical exposition of the Quran. | | Ijma | Ijma is the consensus of opinion among Muslim jurists on a particular legal issue, considered a secondary source of Islamic law, providing a collective scholarly agreement. | | Qiyas | Qiyas is analogical deduction in Islamic jurisprudence, used to derive rulings for new issues by comparing them to existing rulings based on a common effective cause (Al-Illah). | | Istihsan | Istihsan is juristic preference in Islamic law, allowing for a departure from a strict analogical deduction to avoid rigidity or unfairness, based on broader legal principles or public interest. | | Maslahah Mursalah | Maslahah Mursalah refers to the consideration of public interest or benefit that is not explicitly covered by textual religious authorities, used to derive rulings that serve the welfare of the community. | | Istishab | Istishab is the presumption of continuity in Islamic law, maintaining that a state of affairs or a ruling presumed to exist in the past is presumed to continue in the present in the absence of evidence to the contrary. | | Urf | Urf, or custom, refers to the recognized practices and traditions of a society that are not contrary to Islamic law, which can serve as a source for legal rulings. | | Sadd al-Dhara'i | Sadd al-Dhara'i means blocking the means to evil, a legal principle in Islamic jurisprudence that prohibits actions that may lead to prohibited or harmful outcomes, even if the action itself is not inherently unlawful. | | Maal | Maal, in Islamic law, refers to anything that is valuable and can be owned, used, or benefited from by humans, and is permissible according to Shariah. | | 'Ayn | 'Ayn refers to tangible property in Islamic law, which has a physical form and can be possessed, seen, or touched. | | Ghayr 'Ayn | Ghayr 'Ayn refers to intangible property in Islamic law, which does not have a physical form but still holds value and can be owned, such as rights or benefits. | | Mutaqawwam | Mutaqawwam describes property that is legally possessed and valuable in the view of Shariah, making it permissible for contracts and transactions. | | Ghair Mutaqawwam | Ghair Mutaqawwam describes property that is either not possessed or is prohibited by Shariah, making it invalid for Islamic legal transactions. | | Mithly | Mithly property refers to homogeneous goods in the market that are interchangeable and easily substituted, typically measured by weight, count, or volume. | | Qimiy | Qimiy property refers to heterogeneous goods that are not easily substitutable or have unique values, often requiring individual assessment and pricing. | | Istihlaky | Istihlaky property is consumable property that is used up or destroyed in its original form through consumption, such as food and drink. | | Isti'maly | Isti'maly property is usable property that can be utilized repeatedly without changing its original form or structure, such as a house or a vehicle. | | Milk al-Tam | Milk al-Tam signifies complete ownership in Islamic law, encompassing ownership of both the property itself ('ayn) and its usufruct or benefit (manfaah). | | Milk al-Naqis | Milk al-Naqis denotes incomplete or partial ownership in Islamic law, where ownership of the property or its usufruct is separated and held by different parties. | | Haq al-Intifa | Haq al-Intifa refers to the right of usufruct or beneficial enjoyment of a property, which can be owned separately from the property itself. | | 'Aqd | 'Aqd, in Islamic law, refers to a contract, which is a binding agreement between two or more parties that creates legal rights and obligations, typically formed by an offer and acceptance. | | Ijab | Ijab is the offer or proposal made by one party in a contract, initiating the formation of the agreement. | | Qabul | Qabul is the acceptance of the offer made by one party in a contract, signifying agreement and completing the contract. | | Riba | Riba, in Islamic finance, refers to usury or interest, which is strictly prohibited in Islam, as it is considered an unjust exploitation of wealth and an excess in financial transactions. | | Gharar | Gharar means uncertainty, risk, or ambiguity in a contract, which is prohibited in Islam as it can lead to disputes and injustice by making the outcome of a transaction unclear. | | Maisir | Maisir, or gambling, involves games of chance where one party gains at the expense of another's loss, considered prohibited in Islam due to its exploitative nature and uncertainty. | | Bai' | Bai' refers to the contract of sale or buying and selling in Islamic commercial law, involving the exchange of property for a price. | | Khiyar | Khiyar means option or choice, granting a party the right to confirm, cancel, or reconsider a contract within a specified period or under certain conditions. | | Khiyar al-Majlis | Khiyar al-Majlis is the option of the meeting or session, allowing parties to a contract to confirm or cancel the agreement as long as they remain in the same physical location. | | Khiyar al-Shart | Khiyar al-Shart is the option of condition, where parties agree to include a specific condition allowing one or both to exercise an option to confirm or cancel the contract within a stipulated time. | | Khiyar al-Ru'yah | Khiyar al-Ru'yah is the option of viewing or inspection, granting a buyer the right to cancel a contract if the purchased item, which they had not seen before the contract, turns out to be different from their expectation upon viewing. | | Khiyar al-'Ayb | Khiyar al-'Ayb is the option of defect, allowing a buyer to cancel a contract or seek compensation if they discover a hidden defect in the purchased item that existed at the time of sale. | | Mudharabah | Mudharabah is a profit-sharing agreement in Islamic finance where one party provides capital and the other provides expertise, with profits shared according to an agreed ratio. | | Musharakah | Musharakah is an equity-based partnership in Islamic finance where all parties contribute capital and share in profits and losses according to their contributions and agreements. | | Murabahah | Murabahah is a cost-plus financing method in Islamic finance where the seller discloses the cost of an asset and sells it to the buyer at a markup, ensuring transparency and avoiding interest. | | Ijara | Ijara is a leasing contract in Islamic finance, where the lessor transfers the usufruct of an asset to the lessee for a specified period in return for a rental payment, while the ownership remains with the lessor. | | Salam | Salam, or deferred delivery sale, is a contract where the buyer pays the price in advance for goods that will be delivered at a future date, with specific conditions regarding the quality and quantity of the goods. | | Istisna | Istisna is a manufacturing or construction contract in Islamic finance, where payment is made in advance for a customized product to be manufactured or built at a later date. | | Bai' al-Inah | Bai' al-Inah is a controversial sale-and-buy-back transaction that is often considered a stratagem to circumvent the prohibition of Riba, where an asset is sold on credit and then immediately repurchased for cash at a lower price. | | Tawarruq | Tawarruq is a financial arrangement where a person buys an asset on credit and then sells it for cash to a third party to obtain cash, often viewed as a way to access funds without direct Riba. | | Qard Hasan | Qard Hasan is a benevolent loan in Islamic finance, which is an interest-free loan where the borrower is only obligated to repay the principal amount, with any additional repayment being voluntary. | | Wadiah | Wadiah is a trust or safekeeping contract in Islamic finance, where a depositor entrusts their funds or assets to an institution for safekeeping, with no guarantee of profit or loss. | | Wakalah | Wakalah is a contract of agency in Islamic finance, where one party authorizes another to act on their behalf in a specific transaction. | | Kafalah | Kafalah is a contract of guarantee or surety in Islamic finance, where one party guarantees the debt or obligation of another party. | | Sukuk | Sukuk are Islamic financial certificates, similar to bonds, that represent ownership in tangible assets or usufructs, structured to comply with Shariah principles and avoid Riba. | | Ahliyyah | Ahliyyah refers to legal capacity or competence in Islamic law, determining an individual's ability to enter into contracts, undertake obligations, and acquire rights. | | Janin | Janin refers to a fetus in the womb, considered to have incomplete legal capacity in Islamic law, able to acquire certain rights but not bear obligations. | | Sabi Mumayyiz | Sabi Mumayyiz refers to a discriminating minor who has reached the age of discernment (usually around seven years old) and can understand and distinguish between beneficial and harmful matters. | | Junun | Junun means insanity or madness, which negates legal capacity (Ahliyyah al-Ada) due to the lack of reason and intellect, rendering transactions void. | | ‘Atah | ‘Atah refers to idiocy or mental retardation, where a person's mental capacity is severely impaired, affecting their legal capacity for transactions. | | Safah | Safah denotes foolishness or wastefulness, particularly concerning financial decisions, where an individual is extravagant and unwise in managing their wealth. | | Ikrah | Ikrah means duress or coercion, where a person is forced to enter into a contract against their will due to threats or unlawful pressure, potentially invalidating the contract. | | Tadlis | Tadlis, or fraud, involves intentional deceit or misrepresentation by one party to induce another into a contract, which can lead to the contract being voidable. | | Ghabn | Ghabn refers to misrepresentation or being deceived in a transaction, particularly concerning the price or quality of a subject matter, which can make a contract voidable if it is significant. | | Ghalat | Ghalat means mistake, an erroneous conclusion drawn from facts that can impede consent in a contract if it affects the core aspects of the agreement, such as the subject matter or value. | | Fiqh Muamalat | Fiqh Muamalat refers to Islamic jurisprudence concerning transactions and commercial dealings, covering all legal aspects of economic and social interactions between individuals. | | Bai' al-Wafa | Bai' al-Wafa, or conditional sale, is a sale where the seller has the right to repurchase the asset under specific conditions, often viewed critically due to its resemblance to Riba. | | Bai' al-Urbun | Bai' al-Urbun is a sale with a deposit, where the deposit is forfeited if the buyer fails to complete the purchase but becomes part of the price if the contract proceeds. | | Bai' al-Dayn | Bai' al-Dayn refers to the sale of debt, which is generally prohibited as it involves uncertainty and the sale of something not yet in possession. | | BBA | BBA stands for Bai-Bithaman Ajil, a deferred payment sale in Islamic finance, where the price is paid in installments over a period, and the seller is legally entitled to the payment upon contract completion. | | Muatah | Muatah, or conduct-based contract, refers to transactions where mutual consent is inferred from actions rather than explicit verbal agreement, often applied to daily consumables. | | Sahih | Sahih means valid in Islamic contract law, indicating that a contract has fulfilled all its essential pillars and conditions and is legally binding. | | Fasid | Fasid means voidable or invalid in Islamic contract law, indicating that a contract has some lawful elements but contains unlawful characteristics or deficiencies that can render it invalid or rectifiable. | | Batil | Batil means void in Islamic contract law, indicating that a contract is fundamentally flawed, lacking essential elements or conditions, and has no legal effect. | | Lazim | Lazim means binding in Islamic contract law, signifying a contract that is firm, irrevocable, and cannot be unilaterally rescinded by the parties. | | Nafidh | Nafidh means enforceable in Islamic contract law, indicating that a contract can be legally executed and its consequences upheld by the authorities. | | Mawquf | Mawquf means withheld or suspended in Islamic contract law, where the legal consequence of a contract is pending validation by a third party or owner. | | Gharar Fahish | Gharar Fahish refers to major or significant uncertainty and risk in a contract, which is prohibited and can render the contract void. | | Gharar Yasir | Gharar Yasir refers to minor or insignificant uncertainty and risk in a contract, which may be permissible under certain circumstances and does not necessarily invalidate the contract. | | Riba al-Duyun | Riba al-Duyun refers to Riba in loans, which includes predetermined excess over the principal and penalties for late repayment, both considered unlawful. | | Riba al-Buyu' | Riba al-Buyu' refers to Riba in sales, which occurs when there is an unequal exchange of similar commodities (Riba al-Fadl) or a deferred exchange of similar commodities (Riba al-Nasiah), both prohibited. | | Riba al-Qard | Riba al-Qard is a type of Riba associated with loans, referring to any predetermined excess or benefit stipulated for the lender over and above the principal amount. | | Riba al-Jahiliah | Riba al-Jahiliah is an excess demanded by a lender when a borrower defaults on loan repayment, often a penalty charge, which is considered Riba. | | Riba al-Fadl | Riba al-Fadl is an excess in the exchange of similar commodities (Ribawi items) when the quantities differ, violating the principle of equal exchange. | | Riba al-Nasiah | Riba al-Nasiah is an excess in the exchange of Ribawi items when the transaction involves a delay in delivery or payment, violating the principle of spot delivery. | | Matahalan bi Mathalin | Matahalan bi Mathalin means equivalent for equivalent, a condition for lawful exchange of Ribawi items, emphasizing that the quantity and quality must be identical. | | Yadan bi Yadin | Yadan bi Yadin means hand to hand, a condition for lawful exchange of Ribawi items, emphasizing that the exchange must occur simultaneously at the time of the contract. |