Contract in Sharia, Aqd, means a connection or node that connects two parts together. The contract is a declaration of offer and acceptance. Unlike English law, which developed through the work of judges, Islamic contract law developed through the work of fugaha (jurists), based on the principle enunciated in the Qur`an and the Tales of the Prophet (P.B.U.H.). Form refers to expressions made by contracting parties to show their willingness and intention to conclude a contract. It is also known as offer (ijab) and acceptance (qabul). The declaration that is first made to establish an obligation is called an offer (ijab). And the subsequent declaration of acceptance of the offer is called acceptance (Qabul). There are certain general requirements for offer and acceptance. First, it should be written in clear and unconditional language. Second, there should be a correspondence between offer and acceptance. Third, the offer and acceptance must be completed at the same meeting.
Offer and acceptance are usually exercised in words. However, it is not necessary to express them only in words. This can be done by other methods such as writing and behavior, etc. A contract is considered binding if it is valid both in terms of content and description. A binding contract may be revocable or irrevocable. For example, the marriage contract is irrevocable, except by a talaq of the husband. Bilateral contracts may be revoked before or during the execution of a mutual agreement (iqalah) or on the basis of special conditions (faskh) such as the impossibility (istihalah) of performing the contract, the death of one of the parties, the destruction of the article or the expiry of the deadline, etc. Sharia law states that certain requirements for a contract to be valid and legal. Any contract that meets the prescribed requirements of Sharia law is considered valid and legal. Islamic financial contracts have been developed throughout Islamic civilization, based on the needs and requirements of society. The object of the contract must be: (i) lawful; (ii) exist, with the exception of a sale with deferred delivery (Bay` al-Salam) and a production/project contract (istisna); (iii) not manufactured; (iv) deliverable; and (v) specified in the Agreement.
Islamic contract law is broader than English or French because it includes certain provisions that are considered “contractual” in English or French legal systems. Staffing is an example of such provisions. This is a brief introduction to an Islamic or Sharia contract. From the next article, we will learn about different types of contracts, especially those used in the dominant Islamic finance industry. A unilateral contract is an enforceable contract that is subject to the condition that the recipient perform the contract. For example, in a Juâalah contract, an individual (seller) may hire a real estate agent (recipient) to find him a house for which the seller pays a commission to the beneficiary. The intermediary is not legally obliged to find the house for the supplier. In fact, the agent cannot find a home for the supplier. However, the agent must fulfill the contract by finding the house so that the agent can claim the commission. Islamic jurisprudence, as elaborated by various law schools, considers that the main purpose of the marriage contract is to legalize (halal) sexual relations between husband and wife and to legitimize the resulting offspring. The marriage contract also sets out other rights and obligations for each spouse. Apart from the fundamental principle of “good mutual treatment”, which is not defined by law, these rights and obligations are differentiated according to gender.
They are also interdependent: a spouse`s failure to comply with a particular obligation may jeopardise his or her right to a particular right. The most common type of commercial financial instruments used in Islamic financing activities are usually Murabaha, Musharakah and Mudrarah contracts. 4. They shall be identified and clearly known to the parties in order to avoid subsequent disputes. 3. It must exist or be available at the time of conclusion of the contract. In order to conclude a valid contract, certain conditions must be met. Six elements must be met: (i) the bidder and the target recipient; (ii) Offer and acceptance; and (iii) purpose and consideration. To have the legal capacity to enter into a contract, the parties must have reasonable judgment and be at the age of puberty. Therefore, physical and mental maturity is of great importance in determining performance. Contracts may be concluded orally, in writing or by the conduct of the parties in the context of the performance of the contract. What distinguishes Islamic treaties from their Western counterparts is that they emphasize the treaty session (majlis al-`aqd).
The offer and acceptance take place simultaneously at the same time and place. This avoids ambiguities and disagreements. With the advancement of technology, there is now a certain degree of flexibility in the contractual session, flexibility introduced by the tertiary sources of Islamic jurisprudence. Muslim marriage is a contract, not a sacrament. Although it has meaning as the only religiously permissible means for individuals to have legitimate sexual relations and reproduce (now that slave cohabitation is no longer practiced), marriage is a civil agreement entered into by two persons or persons acting on their behalf. (Learn more about consent and forced marriage.) And because it is a contract (`aqd), it confers legal rights and obligations on each spouse. This short essay will deal with these rights as well as the crucial questions of how and if they can be modified by contractual provisions (shurut, sing. shart). The focus here is on “Islamic law” in the sense of jurisprudence (fiqh) and not, as should be emphasized, on what Islamic marriage should ideally be according to the Qur`an or prophetic tradition.
The difference between a unilateral contract and a bilateral contract depends solely on what the target recipient has to do to accept the offer and bind the bidder to a contract. In a unilateral contract, the recipient must execute the offer in order to bind the supplier. Conversely, in a bilateral contract, the recipient only has to promise to execute the offer in order to bind the supplier. In the above-mentioned al baya contract, the consignee must promise to purchase the vehicle on the terms specified by the supplier in order to bind the supplier in a bilateral contract. So a bilateral treaty is a promise for a promise. The bilateral agreement is concluded as soon as the promises are exchanged. Unilateral contracts are contracts initiated and concluded by one party for the benefit of another party without consideration. A unilateral contract is in principle free of charge and cannot require the consent of the recipient. Examples of unilateral contracts are the bequest agreement (Al Wasiyyah) and the commission contract (Al Juaalah), the gift contract (Hiba), the foundation agreement (Waqf) and the guarantee contract (Al Daman). The husband`s first duty is to pay his wife an agreed dowry (mahr or sadaq); This asset, which can range from a token sum to a considerable amount of assets, is legally hers and she can save, spend or invest it as she sees fit.
In exchange for payment of the dowry, the husband receives what is called al-nikah milk, al-`aqd milk or al-bud` milk, “possession (or control) of [the wife`s] marriage (or sexual intercourse)/marriage contract/vulva”; This milk is a prerequisite for legal sex. Because he has this control, he and he alone can unilaterally terminate the marriage at any time by making a declaration of rejection (talaq). If the woman wishes to terminate the marriage, she must either pay it for her consent (in divorce for compensation, khul`) or, if she has reasons (which vary according to the different schools of law), she can apply for judicial divorce. Islamic law recognizes penalty clauses for delays in contract performance and damages. In the interests of justice and equality, the penalty should be proportionate to the actual harm and should not be excessive per se. However, in the event of a breach of a contractual clause and the consequent effect of a penalty clause, the indemnified party should receive the amount specified in the contract.
