The definition of contract from an Islamic point of view is "an
expression of the matching between a positive proposal made by
one of the contractors and the acceptance of the other contractor
in a way which has an impact on the subject of the contract".
Shariah commercial law in islamic legal term known as fiqh
muammalat, constitutes an important branch of law dealing with
issue of contract and the legal effects arising from a contract that
can be valid, void, or avoidable contract. For a valid contact in
shariah law, certain conditions are to be met. It can be appears as
a valid contract bases on several elements of valid contract which
are offeror and offeree, offer and acceptance, and the subject
matter and the consideration. As for the parties to a contract,
they must be legally capacity to enter the contract. The capability
to transact in Islamic law is measured by two aspects, namely
prudence and puberty.
The first element of valid contact in shariah law is offeror and
offeree. As for the parties to a contract, they must be legally
competent to enter into a contract. The competence to transact in
Islamic law is measured largely by two aspects, namely prudence
and puberty as revealed in surah al-Nisa’ verse 6 “Observe the
orphans through testing their abilities until they reach the age of
marriage; then if you find them capable of sound judgement,
hand over to them their property “. The most important part of
each party is the possess capacity. It has been describe with
capacity (ahliyyah) according to Shari‘ah ’Islamiyyah. Therefore,
the Islamic scholar defined the capacity as a quality, which makes
a person qualified for acquiring rights and undertaking duties and
responsibilities.
The second element of valid contact in shariah law is offer (‘ijab)
and acceptance (qabul). Offer means a specific action that
reflects consent or willingness of its maker that presumed from
the word first uttered by one of the contracting parties. Offer may
be verbal or in writing. Under shariah law, word qabul
(acceptance) is used to represent a statement uttered indicating
assent to the ‘ijab(offer). Muslim Jurist takes two different
approaches interpreting qabul. The majority view is that qabul is
made by the buyer or the person to whom the subject matter of
the contract is addressed regardless as to whether this comes
first or later. Whereas the Hanafi school holds a more flexible
approach when qabul is defined as the word uttered later
corresponding to the terms of a subsisting later. And it may be
expressed by either the seller or the buyer. This is somewhat
similar to common law. Offer and acceptance also may be
concluded by means of representatives or modern communication
systems such as the telephone, telex, fax, e-mail and letter.
The third element contract in the shariah law is subject matter
(mahal al-‘aqd). Mahal al-‘aqd must be mal (property or wealth)
mal is defined as something which can be secured for use at the
time of need. The term mal here is generally translate as property
and the word property is applicable only to objects which have a
perceptible existence in the outside world that is to say things
sold which is a thing fixed and individually perceptible as
designated at the sale. A contract has to have a place or
reference (mahal al-‘aqd) which is the subject matter of the
contract. The place of reference in contract is its subject matter
which is the place of application of its rule and which does not go
against its purpose. Islamic law focused on the lawfulness,
existence, deliverability and precise determination. Lawfulness
requires that the object must be lawful, that is something, which
is permissible to trade and must be of legal value that is, its
subject matter and the underlying cause “sabab” must be lawful.
The parties to a contract must legally own the object “qabd”. The
issues of existence presuppose that the object of a contract must
be in existence at the time of contract. The object must be
capable of certain delivery and it must be determined precisely as
to its essence, its quantity and its value. According to
Islamic jurisprudence, the subject matter of a contract could be
corporeal property as in granting sale and mortgage and benefit
as in rent. In case the subject’s nature was not of the kind that
admits this kind of transaction, then the transaction and the
contract are nullified. Thus, a contract involves sale of endowed
property is nugatory, albeit a contract involving rent of such
property is correct and acceptable. There are several conditions
for subject matter;
(i) the subject matter must exist,
(ii) the subject matter can be delivered,
(iii) the subject can be ascertained,
(iv) suitability of the subject matter.
As for the consideration of price, Islamic law does not restrict it to
a monetary price, but it may be in the form of another
commodity. The Islamic prohibition against uncertainty requires
that the price must be in existence and determined at the time of
the contract and cannot be fixed at a later date with reference to
the market price, nor can it be left subject to determination by a
third party.
The fourth element of valid contract in syariah law is legal
capacity (ahliyyah). Capacity is one of the elements of a contract
for the purpose of acquiring legal rights and mutual benefits and
to facilitate the imposition of the obligations on the parties. The
right to contract and the obligations can only exist where there is
capacity to contract. In syariah law, no person can validly
conclude a legal transaction without first having attained physical
and intellectual maturity that being the equivalent of majority to
enjoy full capacity, a person, should attain physical puberty and
enjoy sound judgment known also as prudence in his or her
judgment.
Based on the requirements for a valid contract that had stated
earlier, there are some examples of cases that related to sharia
law.
