CSSMuslim Law

Q.4 Define ʻAqd’ according to Muslim jurists. Which are the circumstances that affect the legal capacity of the parties to execute a contract under Islamic Sharīʻah? 2017

ʻAqd is a legal contract in Islamic law that is based on mutual consent and agreement between two or more parties. The contract creates rights and obligations between the parties and can be used for a variety of purposes, including the sale of goods, the provision of services, and the exchange of gifts.

According to Muslim jurists, there are several circumstances that can affect the legal capacity of the parties to execute a contract under Islamic Sharīʻah. These circumstances include:

  1. Age: Parties must have reached the age of legal capacity, which is generally considered to be puberty, in order to enter into a contract.
  2. Mental capacity: Parties must be of sound mind and understand the nature and consequences of the contract they are entering into.
  3. Consent: Parties must enter into the contract voluntarily and without any coercion or duress. The consent must be free from any defect, such as mistake, fraud, or misrepresentation.
  4. Legality: The subject matter of the contract must be legal under Islamic law. Contracts that involve haram (prohibited) activities or transactions, such as gambling or interest-based transactions, are not valid.
  5. Competence: Parties must have the necessary competence to perform the obligations set out in the contract. For example, a person who is not qualified to provide a particular service cannot enter into a contract to provide that service.
  6. Capacity: Parties must have the legal capacity to enter into a contract. This means that they must not be bankrupt or legally prohibited from entering into a contract.

In conclusion, the legal capacity of parties to execute a contract under Islamic Sharīʻah is affected by several circumstances, including age, mental capacity, consent, legality, competence, and capacity. These circumstances help to ensure that contracts are entered into voluntarily and are based on mutual consent and agreement between the parties.

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