2. Nature of contract, the
essential elements, the
communication of contract,
3. 4.1 Define the elements of Muamalat
4.1.1 Define the contracts in Muamalat
4.1.2 Describe the essential elements of
a. aqid - 2 parties of the contract
b. sighah - form of the contract (offer
c. maaqud alaih - subject matter and
d. maqsad - purpose or effect of the
4. AL ‘AQD (CONTRACT)
• Al ‘Aqd literally means tying tightly, as tying a rope
• Al ‘Aqd carries the meanings of covenant and fulfillment, as we
read in the Quran, surah al maidah verse 1:
O ye who believe! Fulfill (all) obligations. Lawful unto you (for food) are
all four-footed animals, with the exceptions named: but animals of
the chase are forbidden while ye are in the Sacred Precincts or in
pilgrim grab: for Allah doth command according to His Will and
5. • The plural of word 'uqud above is mentioned in
commanding the faithful to keep their covenants. God
the Most High also commands the faithful to keep their
promises and covenants in Al Quran surah Al Isra' verse
• In another verse of Quran (An Nahl verse 91), we read
Allah's command to the faithful to keep the obligations,
which He had imposed on them when they embraced
6. In Hadith ibn 'Abbas, commenting on a
Quranic verse, we read that 'aqd means
covenant, agreement and faith. In Arabic
usage, we read that a man cannot tie ('aqd)
a rope to mean he is too poor and feeble to
Contract also means an engagement and
agreement between two persons in a legally
accepted, impactful and binding manner
such a proposal made by one parties and
accepted by other party in a way which has
an impact on the subject matter of the
7. Husein al Nuri defined, as the expression of exchange
between two confirming wills in an aim to have a legal
impact of a financial nature.
The act of selling is a contract between the seller and
the purchaser in which the seller takes it upon himself to
transfer to the buyer the ownership of something or some
other financial right in return for a monetary price.
The important thing is that there should be a legal
impact ensuing from the contract transaction. Inviting a
friend to a meal, giving him help or promising him a
reward are convention and not contract, as they do not
have a legal effect.
8. DEFINITION OF CONTRACT
The word aqad or contract in Arabic
language means tying tightly, as in tying
a rope. The word aqad carries the
meanings of COVENANT and FULFILLMENT.
Covenant refers to formal agreement that is
Fulfilment related to completion between both
9. According to the Mejalla.
Al-Aqad (concluded bargain)
is the two parties taking upon
themselves and undertaking
to do something. It is
composed of the combination
of an offer (Al-Ijab) and an
10. According to the Mejalla.
(The making of Al-Aqad) is
connecting, in a legal
manner, one’s offer and
acceptance with the other,
in a way which will be clear
evidence of being mutually
11. Types of contracts in Islam;
i. Ownership (al-Tamlikat)
a) Exchange (Uqud Al-Mua’awadhat)
b) Charity (Uqud Al-Tabarru’at)
ii. Security (al-Tauthiqat)
iii. Partnership (Al-Ishtirak)
iv. Safe Custody (Al Hifz)
v. Release (Al-Isqatat)
vi. Permission (Al-Itlaqat)
vii. Restriction (Al-Taqyidat)
12. 1.OWNERSHIP (AL-TAMLIKAT)
The purpose of this aqad is to acquire ownership or right to
benefit of a property. Can be divided into two:
Exchange (Uqud Al-Mu’awadhat)
If the acquiring of ownership is by exchange such as sale,
hire, money changing, compromise, partition, sale by
order and the like, where there is an exchange between
the two parties.
Charity (Uqud Al-Tabarru’at)
If ownership of a property is acquired without an
exchange such as gift, endowment, benevolent loan (Al-
Qard Hasan) and assignment of debt. Sometimes a
contract can be a contract of charity at the beginning
and then the receiving party is required to give an
exchange. Examples of such a contract are guaranty
requested by the debtor and gift with the condition of an
13. 2.SECURITY (AL-THAUTIQAT)
These contracts are meant to secure debts for their
owners and guarantee creditors of debts owing to
them. These are guaranty, assignment of debt and
These aqad meant for sharing in projects and profits.
Among them is Al-Mudharabah.
4.SAFE CUSTODY (AL-HIFZ)
The purpose of the aqad is for keeping a property
safe and having some form of an agency.
14. 5.RELEASE (AL-ISQATAT)
These relate to the dropping of rights against others with or
without exchange. If the release is without compensation
from the other party then the release is absolute release
such as repudiation, release from debt and withdrawal
from the right to pre-emption. If the release is with
compensation from the other party then it is release with
These are for giving free hands to persons in their work
such as agency, appointment of governors and judges,
giving a person who is dispossessed of the power of
administration permission to administer his property or
giving permission to a minor to carry on trade and
appointment of a nominee to take care of one’s children
after his death.
15. 7.RESTRICTION (AL-TAQDIYAT)
Contracts in this group are those preventing the
performance of certain functions. Examples of this
aqad are dismissal of governors, judges and
supervisors or endowment, termination of the
appointment of nominees and agents and
dispossession of administration of property because
of insanity, mental disorder, prodigality and infancy.
16. The elements of contracts are:
a) aqid - 2 parties of contract
b) Sighah – form of the contract (offer
c) maaqud alaih –subject matter and
d) maqsad – purpose or effect of the
17. The contract (Al-Aqad) in 4 general pillars;
Tharafayil 'Aqdi (Agents of Contract)
Maudu'il 'Aqdi (Objective of Contract)
Mahalul 'Aqdi (Object of Contract/Subject
Ijab & Qabul (Offer and Acceptance)
18. DESCRIBE THE ESSENTIAL ELEMENTS
In Rukn of
20. The person who making Qabul or
The person who making Ijab or offering
21. ♫CAPACITY (AHLIYYAH);
o Ahliyyah al-Wujub (capacity for acquisition of
o Ahliyyah al-Ada’ (capacity for execution of
♫IMPEDIMENTS TO CAPACITY (MAWANI’ AL-
o Samawiyyah (Natural causes of impediments)
o Muktasabah (Acquired causes of
THE CONDITIONS OF AL-BA’I & AL-MUSHTARI
23. Ahliyyah al-Wujub al-Kamilah, or complete capacity for acquisition,
is found in a human being after his birth and before the age of
puberty. This makes one eligible for the acquisition of all kinds of
rights and obligations. In other words, a child possess complete
capacity for acquisition of rights and obligation but until a child
attains the age of legal puberty, he lacks the capacity for
execution. Though he cannot meet them personally due to the
absence of the capacity for execution, the lawgiver allows his
guardian (Wali) to stand in his place and represent him. The child is
also liable for any damage caused to other’s property.
Ahliyyah al-Wujub al-Kamilah
24. It is established for a fetus (Janin). Deficient capacity implies
that only some rights are established for the fetus and no
obligations are imposed on it. The reason is that fetus is
considered part of the mother in some respect.
By virtue of this deficient capacity, the fetus acquires
certain rights; freedom from slavery, inheritance, bequest
and parentage. On the other hand, the fetus cannot be
held liable for the satisfaction of rights owed to others. Thus,
obligations and duties are not established against fetus,
because there is no question of its performance.
Ahliyyah al-Wujub al-Naqisah
26. Complete capacity is established for a human being when he/she attains full mental
development and acquires the ability to judge. This state is associated with the external
standard of puberty. The physical signs indicating the attainment of puberty are the
commencement of wet-dreams in a male, and menstruation in a female. In the
absence of this sign, puberty is presumed at the age of fifteen in both male and female
according to Abu Hanifah.
In addition to puberty, the possession of Rushd (discretion, maturity of
action) is stipulated as well. The Qur’anic sanction, to this effect, is as follows:
“Make trial of orphans until they reach the age of marriage; if then you find
sound judgment in them, release their property to them; but consume it not wastefully.”
Ahliyyah al-Ada’ al-Kamilah
27. Ahliyyah al-Ada al-Naqisah is assigned to a child who possess
some discretion or to a Ma’tuh who has attained puberty,
but yet lacks complete mental development. The person
who possesses deficient capacity cannot be held criminally
Hanafi School of law categories deficient capacity for
execution into three categories;
Ahliyyah al-Ada’ al-Naqisah
28. 1.Purely beneficial transactions
The transactions falling under this category are the
acceptance of a gift of Sadaqah (charity). These are
allowed for a person who has attained puberty but who
can discriminate and has been permitted by his guardian
(Wali) to exercise such acceptance.
2.Purely harmful transactions
The granting of divorce, manummising (‘Itq), charity
(Sadaqah), loan (Qard) and gift (Hibah) as well as making
a trust (Waqf) and bequest (Wasiyyah) are considered
transactions resulting in pure financial loss.
3.Transaction vacillating between profit and loss
Sale, hire partnership and other such commercial
transactions are considered valid provided that the
transactions are ratified by the guardian and also produce
a significant result for the parties concerned.
30. Minority (Sighar)
It is the stage of a human being after the birth and
before the age of puberty. A minor follows his
parents or one of them in the matters of Islam.
Islamic jurists maintain that a minor is liable for
compensation for property destroyed by him, for
goods and services bought, for maintenance of
relatives and also for zakat according to some.
Hanafi School of Thought makes an exception in
the case of a Sabi Mumayyiz and it is a matter of
controversy whether the Khitab of Targhih or
recommendations is addressed to him. He is not
liable for punishments, but financial transactions
undertaken by him are valid in certain cases.
31. Insanity (Junun)
Junun has no effect on Ahliyyah al Wujub, because
rights and obligation are established for and against
an insane person, who is deemed liable for Itlaf
(destruction of property), payment of Diyyah and the
The rationale (Manat) for attribution of such
capacity is humanity (Insaniyyah) and the insane is
a human being.
Insanity, however, completely negates the Ahliyyah
al-Ada because of lack of reason and intellect. An
insane person, therefore, has no liability for worship, or
punishment, and all his transactions are void.
32. Idiocy (‘Atah)
It is a condition in which a person at times speaks
like a sane and normal person while at others he is like
a mad man. It is also described as a state in which a
grown-up has the mind of a child. The capacity of an
idiot is deemed equivalent to that of a Sabi
Mumayyiz who can be permitted by his guardian to
undertake some transactions.
33. Sleep and Fainting Fits
Sleep and fainting fits have relevancy for the
purpose of ‘Ibadah (worship) as well as for crimes and
torts. They do not affect Ahliyyah al-Wujub , because
the human attribute is intact. The person’s capacity
to understand things is temporarily affected thus
prevented from normal functioning.
There is no liability for punishments and transactions
against the person in a sleep or fainting fit. If a person
while sleeping falls on a child and kills it no liability will
be imposed against him except compensation under
the law of tort according to the governing principle of
Qatil be al-Sabah.
A person is not very careful about things though he
has full knowledge of them, as distinguished from
sleep and fainting fits in which such knowledge is
lacking. Forgetfulness does not affect Ahliyyah al-
Wujub nor does it affect the capacity for execution.
The legal communication (Khitab), however,
becomes operative as soon as the person
remembers. Transactions undertaken by such a
person are valid and enforceable against him.
35. Death Illness (Marad al-Maut)
Maradul Maut has no effect on the capacity for
acquisition or on the capacity for execution and it is,
in fact, a condition of Taklif, because it is the capacity
to perform and act that is affected here and not the
capacity to understand it.
36. Acquired Causes of
Muktasabah or acquired causes are those that
are created by man in which human will and
choice is affected. Islamic jurists categorized
these causes into several types, all of which
have effect on the capacity for acquisition
and execution. Causes of Muktasabah;
2. Jest (Hazl)
3. Folly (Safah)
4. Duress (Ikrah)
37. The condition of compensation or
price; the price must be an existing
legitimate privately owned item.
The price is known beyond dispute.
The value of an object is its market
In debt; may come into agreement,
coercion, bail, security deposit,
38. The discussion of the price
and object of sale will
proceed in two steps:
1. Specification of the price and
object of sale
2. Rulings related to the price and
object of sale
39. 1.Specification of the price
and object of sale
In the most common usage, the object of the sale
becomes uniquely identified by specification, while
the price is most often not uniquely identified by
specification in a contract. This is the general rule
for those two items, but it can change under
For example, items that cannot be uniquely
identified may become objects of sale, such as
those in a forward sale, and items that can be
uniquely identified can become a price such as the
price in such a forward contract, if it is a uniquely
40. 2.Rulings related to the
price and object of sale
A condition for the conclusion of sale is that the
object of sale be a valued good with legitimate
uses. This condition does not apply to the price.
A condition for the executability of a sale is that the
object of sale be in the possession of the seller.
It is not valid to defer the delivery of the price in
forward sales, while the deferment of the object of
sale is necessary.
41. The cost of delivery of the price is borne by the
buyer, and the cost of delivery of the object of sale
is borne by the seller.
A sale without naming the price is defective invalid
(fasid); whereas not naming the object of sale, as in
saying: “I sold you for ten coins”, voids the contract
that is thus not concluded.
If the object of sale perishes after the exchange of
object and price, the sale may not be reversed.
However, the perishing of the price after the
exchange does not prevent the sale from being
42. If the object of sale perishes prior to delivery, the
sale is void. However, if the price perishes prior to
delivery, the sale is not void.
The buyer may not re-sell movable merchandise
before receiving it, whereas the seller may use or
sell the price before he receives it.
The buyer must deliver the price before he has a
right to receive the object of sale, unless seller
43. Subject matter known as mahal al
aqad or al-mabi’.
According to Islamic Jurisprudence,
the subject matter of a contract
could be corporeal property, as in
granting, sale and mortgage,
privilege or benefit, as in rent or a
human being as in the marriage
contract which has as its subject the
45. Ijab is the word first spoken and
Qabul means consent and
IJAB QABUL SIGHAH
The contract is comfirmed by the
coming together of statements of
The reason of having “akad” is to clarify &
produce willingness between both party who is in
contract & knowing it’s implication.
The pillars of a contract are expression of the
matching between positive proposal
(ijab/confirmation) made by one contractor and
the acceptance of the other contractor (qabul).
47. The other conditions which are necessary for it to be
legally acceptable and impactful, these conditions
1. The existence of two properly and aptly qualified
contractors. It is a condition of a valid contract that
the parties possess capacity. These capacities are;
a. Wujub (rights)
b. 'Ada (performance, action)
2. A format (sighat).
The utterances expressing the wills of the two parties,
showing the purpose of contract and bringing it into
existence after it had been a hidden and unknown
thing or intention.
48. 3. Subject matter.
In principle, be something legal otherwise the
contract is nugatory,
It has to be specified and defined in way prevent
It has to be existent.
49. THE VALIDITY OF CONTRACT
• The valid contract is endorsable by shari'ah, which has an impact on
life situations in accordance with its strength, its pillars and
characteristics are both sound and free of defects and which does
not contain any item which is prohibited by shari'ah.
• Hanafi scholars define the correct contract as one which is legal in
both its pillars and its characteristics and also state that incorrect
contract is of two divisions: nugatory (which is illegal in both its origin
and its characteristics) and corrupt (which is legal in its origin but not
in its characteristics).
• The conditions which have to be met in a contract, namely
conditions of en 'eqad (confirmation), conditions of nafat
(execution), conditions of lozum (obligation) and conditions of sehah
50. 1. Conditions of confirmation
- have to be met in a contract in order for it to be legal
and correct. They are of two kinds:
• General conditions: which have to be met in each
and every contract, and they include: the existence
of two contracting parties, the format and the
subject in addition to secondary related conditions.
• Particular conditions: which have to be met in certain
situations but not in all.
51. 2. Conditions of execution
• The contractor should be in possession of the subject or at
least able to hand it over.
• There should be no claim from (no right to) other people to
the subject of contract. The person who sells something which
is the property of someone else has to obtain the owned.
3. Conditions of obligation
• The contract should be void of the element of choice or
option. The subject matter should be free from defects.
Conditions of correctness - are the general conditions which
have to be met in each and every one of the three pillars of
• If one of these conditions is not met, the contract is
considered nugatory according to the majority of scholars,
and corrupt according to Hanafi jurisprudents.
53. 4.1.3 Identify the Shariah requirements in
the sighah (offer and acceptance)
54. Article 101 of Mejalla provides that Ijab is the wordArticle 101 of Mejalla provides that Ijab is the word
first spoken, for making a disposition of propertyfirst spoken, for making a disposition of property
and the disposition is proven by it.and the disposition is proven by it.
The formalities of Ijab are;
Modes of offer (namat al-ijab)
Tense of offer (sighah al-ijab)
Counter offer (ard al-muqabil)
Revocation of an offer (rujuan al-ijab)
Termination of an offer (butlan al-ijab)
55. Modes of offer (namat al-ijab)
An offer can be made in any of the following ways;
a) by words/oral; An offer can be made by words used for concluding a sale (Bai’) by
the common usage and the custom of the place. Must expressed and understood in the
language of local people.
b) by writing; an offer could also be made by writing or deed which will have equal
legal effect as the one made verbally.
c) by gesture; an offer by gesture is valid if it is made by a person who is incapable of
making it either verbally or in writing. For examples, an offer made by a handicapped,
dumb, or deaf person.
d) by post, telegram, telex, fax, e-mail, etc; all these instruments convey offers made by
words and writings.
56. Tense of Offer (sighah al-ijab)
•An offer is generally made using past tense, but in some situations, an offer could also
be made in other tenses and manners.
•An offer may be made by the aorist tense in which if it indicates a present tense then
the sale is valid but if it indicates a future tense then the sale is invalid.
•In other words, an offer is valid and has a legal effect if it is not made by using the
future or imperative tense. A sale is not concluded by words in the future tense.
Counter Offer (ard al-muqabil)
•In order to create a building agreement, the offer and acceptance must match.
•The offeree must accept all the terms of the offer.
•If in his reply to an offer, the offeree introduces or poses a new term(s) of the offer,
then that reply cannot amount to an acceptance. Instead, the reply is treated as an offer
itself, which can be accepted or rejected.
57. Revocation of offer
•According to the Hanafi and Hanbali, the offeror has the right to revoke the offer at
any time before the acceptance is made. Although this right theoretically exists also in
the Shafie. It is doubtful whether the offeror has the time to exercise it. This is because
the Shafie is requiring the acceptance to be made immediately after the offer is made,
otherwise the offer will cease to exist.
•According to the Maliki, the offeror is bound by his offer until the meeting breaks up.
Thus if he revoked his offer and the offeree afterwards accepts before the meeting
breaks up, the contract would be concluded.
•In the Hanafi, there are two views on the matter. According to one view, the revocation
is not effective until it is communicated. Thus if the seller say, “I have sold to you this
for so much”, and added, “I have revoked my offer” and the buyer without hearing the
revocation says, “I have bought”, the sale is concluded.
•According to the other view, the offeror can revoke his offer whether or not the other
party knew about the revocation.
58. Termination of an offer (butlan al-ijab)
•An offer could be terminated and will not have any legal effect under the following
Rejection by the offeree
Absence of acceptance
Lapse of time
59. Qabul means consentQabul means consent
The formalities of qabul are;
Modes of acceptance (namat al Qabul)
Tense of acceptance (sighah al-Qabul)
Communication of offer and acceptance
60. Modes of acceptance (namat al Qabul)
An acceptance can be made in any of the following ways;
by performance or conduct
letter of post
by telex, e-mail, telegrams, phone and fax
61. Tense of acceptance (sighah al-qabul)
For a valid contract, an acceptance must either be
in the past or present tense. In no situation, can an
acceptance generally uses past tense.
62. Communication of Offer and Acceptance (Ittisal)
The Fiqh under the Hanafi School of Thought, on the assumption that the
parties are contracting orally and in the presence of each other, makes it a
condition for the conclusion of the contract that the offeree must hear the
offer and the offeror must hear the acceptance.
The juristic basis for the necessity of this mutual hearing is not clear.
According to one of the Fiqh, there can be no consent without such mutual
Some of the school of Fiqh maintain that, the necessary connection between
the offer and the acceptance will not take place unless each party hears what
was said by the others. It has even been suggested that if the parties did not
hear each other there will be no unity of the meeting place.
The Shafie maintains that it is not necessary that the offeree shall hear the
offer or the offeror shall hear the acceptance provided that both the offer and
Qabul are made in a voice loud enough that it will normally be heard by those
present in the meeting place.
It is not clear from the text of the Fiqh of the Hanbali and Maliki, whether the
offer and acceptance should be communicated.
64. 4.2 Define the concept of Khiyar
4.2.1 Define Khiyar
4.2.2 Identify the types of khiyar
a. Khiyar Majlis
b. Khiyar Syarat
c. Khiyar ‘Aib
d. Khiyar Rukyah
e. Khiyar Ta’ayin
f. Khiyar Naqdi
65. CONTRACT CEREMONY
• A place where both party performing sighah.
• Is a muamalat contract between two or more party
perform in a contract or in a place where the
contract is valid
• 4 condition in fulfilling the contract ceremony:
• Both party must be at the ceremony
• The tenor must be indicated clearly (written
• Not to have a party who show unwillingness during
• The 1st
party must not withdraw the agreement
before the 2nd
party accept the offer.
66. Khiyar ; Option in aqad between seller and
buyer whether to accept or reject the
67. • A khiyar (option) that constitutes a condition stipulated in the
contract. This option confers on the parties to the contract the
right to proceed with contract by confirming it OR to cancel it,
all within a pre-agreed period of time.
• In other words, the parties have the option of studying their
respective positions in the contract in order to come out with
a final decision of either confirming or rejecting it.
• This option can be attached to any commutative contract. A
contract that involves the exchange of counter values, and
which is cancellable at any later date.
• In general, the option duration can vary in length according
to the agreement and designation of the two contracting
parties at the contract date.
• During the option duration the buyer has the right to
effectuate the deal by paying the price and taking delivery of
the underlying object of sale.
• There are two reason of important Khiyar. Firstly, to make sure
the parties of contract are willing to proceed or not the
contract. Secondly, to protect the benefit for both parties.
69. THE TYPES OF KHIYAR
a. Khiyar Majlis
b. Khiyar Syarat
c. Khiyar ‘Aib
d. Khiyar Rukyah
e. Khiyar Ta’ayin
f. Khiyar Naqdi
70. KHIYAR MAJLISKHIYAR MAJLIS
(SESSION OPTION)(SESSION OPTION)
Option during the meeting
That each one of the parties has the right to
confirm or cancel the contract in the
negotiation stage of the contracy, as long as
the two parties are still there and have not
Alternatively, one of the two parties gives
the other the right of choice, and he
chooses to confirm the contract.Thus the
option of the meeting does not make the
contract binding until the two parties leave
or to give up the right of choice.
71. The option of the meeting is confirmed in
every mo’awadah (mutual commitment)
contact like sale, postponed payment grant
and reconciliation where mutual
commitment is involved.
Thus it is evident that the option of the
meeting is not applicable in contracts which
do not involve mutual commitment like
donation, usefulness and non-committing
contracts and contracts which involves
forced acquisition and licensing contracts.
72. The option of the meeting does not apply
also in the following contracts: nikah
(marriage), khul’ (divorce agreement where
the wife exempts the husband from paying
alimony and other expenses or giving their
additional payment), hibah, shirkah, rahn,
mosaqat (agricultural partnership), and Al-
73. Ibn Omar reports that the Prophet (PBUH)
said,“If two men conduct a sale, each one of
them has the right of choice until they part or
until one of them gives the choice to the other
if one of them gives the right of choice to the
other and they conclude the sale, the sale is
then confirmed.” This hadith is narrated by al-
Bokhari and Muslim
Amr ibn Sho’aib reports from his father’s
report of his grandfather that the Prophet
(PBUH) said,“The two parties have the choice
until they part.” The hadith is narrated by
74. KHIYAR SYARATKHIYAR SYARAT
(CONDITION OPTION)(CONDITION OPTION)
The option of condition
Both or one of the parties or another person has
the choice of either confirming or cancelling the
contract during a set period of time.
An example of this is when a buyer says to the
seller “I bought this merchandise from you on
condition that I have the choice for one day, or
three days.” This contract includes sale and
Applicable to binding, necessary and committing
contract which are cancellable even it was
committing to one party e.g. sale, rent partnership,
75. The condition of option here is confirmed contrary to the
tradition of the Prophet (PBUH) who interdicted joining sale and
condition in one contract; however, jurisprudents admitted such a
sale on the basis of approval for two reasons;
The Prophet (PBUH) himself had accepted and sanctioned it. It is
reported that Habban ibn Monqidh ibn Amr was a feeble man who
had been injured badly in the head.The Prophet (PBUH) gave him
the choice in purchase for three days.And as he found difficulty in
speaking, the Prophet (PBUH) told him to say in conducting a sale.
Some people may not be clever in trading and may need to seek
advice from an expert by using the condition of option.This is to
make it possible for him to cancel the contract if he think it fit to
do so.The option of condition is also called the option of tarawwi
(deliberation or reflection) because it involves thinking over things
and consulting others.
76. KHIYAR ‘AIBKHIYAR ‘AIB
(DEFECT OPTION)(DEFECT OPTION)
Option of defect.
The option a party has when he discovers in
the subject something which reduces its
natural value or which makes it fall short of
It makes clear that if anything appears in the
subject of the contract which does not match
its original use and which decreases its
market value or makes it unfit to meet the
requirements expected of it, then the party
has the option to defect.
Another name for Khiyar al-aib is Khiyar al-naqisah
(option of fault or reduction).
77. If anything appears in the subject of the
contract which does not match its original use
or decreases its conventional market value, or
makes it unfit to meet requirements expected
of it, then the buyer have the right to exercise
option of defect, as freedom from defects is the
right of the buyer given in any commercial
Applicability of the right of Khiyar ‘Aib; are
contract of sale, contract of Ijarah (hire),
contract of exchange of currency, Mahr
payment, and Sulh (reconciliation) involving
agreement or setting blood money, that is all
contracts whose purpose is the exchange of
78. THE CONDITION FOR
1. The defect have existed in the subject matter prior
to the time of sale or it occurs before the delivery
and while it is still in the hands of the seller.
2. The defect which existed in the subject matter
decreases its value or renders it unfit for the
purpose to which it is intended.
3. The buyer must be unaware of the defect at the
time of contracting and taking the subject matter
into his possession. If the seller indicates that the
defect is so manifestly obvious so as not to escape
defection and the buyer accepted it without
protest, he is considered to have waived his right.
4. The absence of stipulation for waiving or releasing
the seller from liability for the defect in the subject
79. Conditions under which right of Option of Defect
cannot be exercised;
1. When the buyer, after he has known the defect in the
subject matter, insists or continues on buying the thing.
2. When the buyer knew the defect in the subject matter
but transfers or gives it to other persons as a gift or as a
selling thing. He loses his right of option of defect.
3. When the seller sells a thing with a condition that he
shall not be made liable for any defect in the subject
matter and the buyer agreed upon that condition.The
buyer loss his right of option of defect.
4. If the defect is slight and if it does not reduce the value
of the object, and if it is conventional to overlook it,
then the party cannot use it as a pretext to return the
5. If the new defect occurs in the subject matter while it is
in the possession of the buyer and he discovers that the
object had an old defect while it was in the possession
of the seller, then the buyer can claim the reduction of
the value but he cannot return the object.
80. KHIYAR RUKYAHKHIYAR RUKYAH
(INSPECTION OPTION)(INSPECTION OPTION)
The option of viewing.
A person who enters into a contract dealing
with a certain object – which he has not seen
– has the right of cancelling or confirming the
contract upon selling the object.
This implies that a party has the option of
viewing based on two conditions:
FIRST; The subject of the contract should be
a specified thing like a house or a car.
SECOND; The party should not have
seen the thing before. If he has, then he
does not have the option.
81. THE PURPOSE OF KHIYAR RUKYAH
To avoid injustice that may lead to
ignorance and dispute among parties.
To protect the interest (istihsan) of Muslim
and to prevent any disputes among them.
To avoid unfairness when they have no
experience or ability to market place to
buy things they have not seen.
(SPECIFICATION/SELECTION OPTION)(SPECIFICATION/SELECTION OPTION)
Option of determination or selection.
The parties have the option to choose the object of sale
out of multiple varieties of a given article.
The purpose of this Khiyar is to give wide choice to the
buyer to choose and the seller to stipulate the subject
matter of the contract.
For example the parties may purchase one out of three
varieties of commodities of different qualities (excellent,
average and poor) without specifying which particular
varieties would be purchased on the condition that those
the subject matter from the same class but different
qualities and different price.
This option only applicable to the parties of the contract
only in a stipulated time.
83. This option cannot be stipulated by the
However, some scholar in the opinion
that this option only applicable to the
buyer only. Duration of this option
according to the nature of the
Imam Abu Hanifa maintain that the period
of this khiyar At-Ta’yin same as khiyar al
syakk which is 3 days. However duration
of option must be precisely defined by
84. Khiyar that stated the condition on when
the buyer will not pay the full payment of
the total price in certain time period.
Within 3 days, the agreement will be
KHIYAR NAQLIKHIYAR NAQLI