QUESTION 8 Capacity of Contracting Parties 1. Ahliyyatu al-Wujub 2. Ahliyyatu al-Ada’

1. QUESTION 8Capacity of Contracting Parties 1. Ahliyyatu al-Wujub2. Ahliyyatu al-Ada’ Shahrullah Khan Nawab Zadah Khan Nooraneda Mutalip Laidey Janatul Naemah Mohd Rasid

2. ELEMENTS OF AQAD Hanafi Ijab Qabul Ijab Majority Sighah Contracting Parties Subject Matter Qabul

3. Contracting Parties Contracting parties are the parties who exercise the sighah of ijab & qabul. In order to conclude a valid contract, the contracting parties must have legal capacity. Al-Ahliyah/legal capacity has been defined by Muslim jurists as the “eligibility of a person to establish right for and obligation upon himself”. 3

5. Ahliyyatu al-Wujub • Def : the eligibility of a person to acquire rights for and upon him (Fiqh) : the capacity of obligation i.e. to acquire rights and duties (literal) • Factors that embodied elements of Ahliyyatu al-Wujub on human being is the life of humanity itself. So there is no correlation with age or sense of maturity. • This right existed since the formation of the fetus in womb until a man’s death. • Every human being, including the fetus in his mother’s womb or a lunatic, has this kind of right. • Divided into two parts • Complete ( Naqisah) • Incomplete (Kamilah)

6. Ahliyyatu al-Wujub Kamilah Complete Naqisah Incomplete

7. 1.INCOMPLETE (FOETUS IN WOMBS) • This right is incomplete because a person gains the right but in the meantime he is incompetent to bear the liability. • These right is not complete which is still owned by the fetus in the mother's belly, it means not yet born. • This right is incomplete right for two reasons, namely: First, the foetus may be alive but there is a possibility he will born in a state of death. Therefore his status does not exist and he did not get any right. • But from another aspect there is a possibility he will be born alive. Therefore he has a right as a human being. • The existence of these two possibilities, born alive or dead, making the position of the foetus does not earn rights. However considering that the fetus actually exist in the mother's womb, he has the right to rights, even though his life as humans generally have not materialized.

8. Second, the foetus is still in his mother's womb so is still considered part of the mother. He moved with his mother's gestures. Nevertheless, when it is ready, the foetus is ready to be separated from her mother to have the perfect life. • Given the position of the foetus as part of his mother and separated from his mother's readiness to live alone, he does acquire rights that does not require Qabul • There are 4 rights granted: i. Establishment of blood relation to the father; ii. Right of Inheritance; iii.Right to receive bequest; iv.Right to benefit from the waqaf property made for his interest

9. However, foetus does not acquire automatic right to ii, iii, and iv but the right would depend on his existence as human being (born). If he is born alive, he will acquire the right but if he is born dead, his rights must be given back to the entitled person. • Foetus is entitled to waqaf. (Hanafi & Maliki) • Foetus not entitled to waqaf but entitled to inheritance and bequest. ( Syafii &Hambali)

10. 2. Complete (Infant) • Complete capacity to acquire certain rights and responsibility. However he not yet have rights in contract. Therefore the infant acquire this rights resulting from any transactions held by the guardian or trustee acting on his behalf. • Hanafi- this right is established when the foetus is born alive • Majority – this right is not established except when the fetus is born alive and live. • He is subjected to all responsibilities affecting his property, e.g. to pay for the price of the property bought for him, or to own whatever things given to him as gift. • He shall discharge such property tax liability • He is obliged to pay zakat (majority except Hanafi)

11. In matters relating to property issues, a small child have equal responsibility with the adult. As for the implement is a guardian or holder of a will for him on his behalf. • However, when he entered into a contract or perform a legal action, whether favorable to himself e.g. receiving a grant or a will, or that do not benefit him e.g. he donated some of his property to someone else, then the contract is VOID because he does not yet have the capacity to enter into a contract (aqad).

12. Ahliyyatu al-ada’ • Age 7 to puberty (Incomplete); -In general he has a complete capacity as at person to attain rights and responsibility and to enter into contract in certain types of contract. -Hanafi are of the opinion that his contract is of 3 types: (i) Beneficial ‘aqd eg: to received gift : Valid (ii) ‘Aqd that causes loss : Void (iii) ‘Aqd that may cause either benefit or loss eg: contract of sale : contingent upon approval of guardian

13. While according to Shafii and Ahmad his contract is null and void, except where such act are purely to the advantage of a minor of perfect understanding but must be ratified by the guardian. • A minor of imperfect understanding may not make any valid disposition of his property even with his guardian’s consent or ratification.

14. Ahliyyatu al-ada’ • Age of Puberty or Baligh/ Age of Majority (Complete); -In general when a person has reached puberty or baligh he/she has reached the age of majority. -Where he/she has complete capacity to acquire rights & responsibilities. He can enter to any ‘aqd without the need to get anyone’s approval. -Baligh is reached when for a boy, he has a wet dream /emission of seminal fluid. While for a girl when she has her first period.

15. Majority jurist specify that having reached puberty on the basis of a Quranic verse (IV:5) • “Make a trial of the orphans until they reached marriageable age. If you are then accustomed to their acting with prudence, hand over their property to them” • Age of majority is linked to a manifestation of prudence (Rushd) but certain limited capacities may be granted to persons manifesting discernment discretion (Tamyiz). For example whether a person is able to distinguish the differences between sale and a purchase. • Majority jurist agree that prudence and puberty occurred around the age of 15 years old. However in many event, the minimum age of puberty was at the age of 9 years old for a girls and at the age of 12 years old for boys.

16. Age of Majority; -Abu Hanifah : fixed the age of majority at 17 years old -Majority jurist : fixed at 15 years old, rationale based on report from Ibn. Umar, a companion of the Prophet. Ibn Umar reported: “I offered my services to the prophet when I was 14 years old but he refused me permission to engage in the battle. I next presented myself to him when I was 15 and he allowed me to join the ranks” (al-mughni)

17. Impediment to legal capacity • One of the condition of a valid contract he/she must be of a sound mind or prudence (Rushd). • IbnQudama defines prudence in a person as the “protective safekeeping of his property and sound organization of his business” • There are some factors that may impede someone’s legal capacity. It can be categorized to 2 ; (i) Involuntary Impediments or known as ‘AwaridhSamawiyyah’ that is the factors beyond one’s control. The factors exists without affected person’s choice. (ii) Voluntary Impediments or also known as ‘AwaridhMuktasabah’ that is the factors within one’s control.

18. Example of ‘Awaridh Samawiyyah (Involuntary Impediments); 1. A lunatic person (Ma’tuh or Majnun) -Is considered lacking in discernment (Tamyiz) and therefore any act entered into by them is null and void. -A Majnun who is characterized by abnormal and irrational behaviour is interdicted from entering into any valid contract. - A Ma’tuh (partially or temporarily insane) is recognized as having lucid periods during which he is allowed to enter into certain valid transaction on a par with the discerning minor.

19. 2. Imbecility (‘atah) - Imbecility person is considered lacking in discernment (Tamyiz) and therefore any act entered into by them is null and void. 3. Sleeping - Sleeping person also is considered lacking in discernment (Tamyiz) and therefore any act entered into or declaration made by them is null and void. 4. Ill with Death Sickness -Al-Majella defines as a “sickness where in the majority of cases death is imminent, and in the case of male, where such person is unable to deal with his affairs outside his home,

20. and in the case of a female, where she is unable to deal with her domestic duties, death having occurred before the expiration of one year by reason of such illness, whether the sick person has been confined to bed or not” • Dispositions during death sickness are interdicted in the interest of the person’s heirs or creditors. • Under the Islamic law of succession at death the entitled legal family heirs have an entrenched right, under the compulsory rules of inheritance 2/3 of the deceased’s estate.

21. Personal discretion to dispose of the property at death by way of will or bequest, in order to protect the heirs’ rights of inheritance, subject to 2 main restrictions; • (a) A bequest in excess of 1/3 of the net estate, or a bequest in favour of any legal heir, is ultra vires and ineffective unless ratified by the legal heirs. • (b) A gift made by a dying person is not ipso facto null and void; it is said to be suspended (“mawqul”) upon the consent or otherwise of the party whose interest the interdiction is imposed.

22. Example of ‘Awaridh Muktasabah (Voluntary Impedements); 1. Prodigals (safih) - Coulson in his books defined Prodigals “as one who through simple mindedness, carelessness or conscious design, is wasteful or extravagant in his property dealings, squandering his goods or money immoderately and to no good purpose from the general standpoint of Islamic morality”. -Such persons are subject to interdiction to protect them from their own folly.

23. 2. Drunkenness -It is a controversial issue with the Fuqaha’ due to the Quranic prohibition of Khamr (surah al-Nisa 4:43) and the Fiqh’s consequent analogous prohibition of alcohol. - Hanafis distinguish between accidental and voluntary drunkenness, giving legal effect to acts entered into . If it is voluntary drunkenness due to his own desire, the contract is valid. If it is accidental the contract may be suspended. -Malikis regards acts or declarations pronounced in a state of drunkenness as non-obligatory subject to later ratification. - Shafiis and Hanbalis consider them null and void, subject to later ratification.

24. Conclusion. It can be conclude that in Islamic law, every person from unborn child until death can acquire the right but it differs according to age and this can be seen from the concept of ahliyyatu al wujub. However, not everyone has the capacity to execute the rights or deal or transact with his rights in contracting either involve property or not because this requires a sound judgment (prudence) or either to protect the interest of others as the case may be.