The Concept of
Contract in Islamic
Law
Trade or business is a highly respected in the teachings of Islam
Prophet Muhammad is very appreciative of the merchants, even he himself was an activist
foreign trade is highly reliable and pupolis
Disclosure of trading in the Qur’an found in three forms, namely tijarah, bay’ and Syira'. Tijarah
word is called 8 times in the Qur'an are scattered in seven letters, which surah Albaqarah: 16 and 282, An-Nisa : 29, at-Tawbah: 24, An-Nur: 37,
Fathir: 29, Shaf: 10 and Al-Gomaa: 11
From Mu'az bin Jabal that the Messenger of
Allah said, "Indeed the best of both
businesses are businesses that trade if they speak no lie, if it promised not to violate, if not treasonous believed, if the purchase
does not blame the product, if it sells no
praise merchandise, if it does not slow down the payment owed , if it has not complicate receivables ". (HRBaihaqi and released by As-Ashbahani)
Contract (akad) is the relationship between an
authorized (ijab) and granted consent
9qabul)by the syariah law giving rise due to the object. (Jumhur Ulama)
The most important element in the contract: a. Ijab (Pledge), that such linkages and granted
consent. Consent is a statement from someone (the first party) to offer something.
b. Qabul is a statement from someone (the
second party) to receive / grant offer from the first party.
Contract (Aqad) is: a written agreement
between the Islamic Bank or UUS and others that contain the rights and
obligations of each party in accordance with Sharia principles (Article 1 point.13 of Law No. 21/2008 on Islamic Banking).
Contract is an agreement between two or
more parties to do or not do and certain legal acts (Article 20 KHES).
1.
Al ‘Aqidain
(the subject of
contract)
2.
Mahallul ‘Aqad
(the object of
contract)
3.
Maudhu’ul ‘Aqad
(the purpose of
contract)
It is the parties who perform the contract as
a legal act which assumed rights and obligations.
The form of the subject of contract:
1. Human (syakhsiyah thobiiyah)
2. Corporation (Syirkah) (syakhsiyah
I’tibariyah hukumiyah)
Human as a subject of law is a human that is already subjugated by law, called
mukallaf.
(has full legal capacity).
Mukallaf are the ones that have been
deemed capable of acting in law, both of which are associated with the commands of Allah and with the prohibitions and be accountable to God.
1. Aqil Baligh; which means it has reached
the physical changes and common sense (mature).
2. Tamyiz (can distinguish); which means it
can distinguish between good and bad.
3. Mukhtar (free of coercion); Principles
should be reflected in the contract that it was consensual antharadin free from
coercion and pressure.
1. Ahliyah (proficiency):
Ahliyah wujub (proficiency in the right) Ahliyah ‘ada (proficiency in performing
responsibilities).
2. Wilayah (authority)
Niyabah Ashliyah (doing him/her self)
Niyabah al-Syar’iyyah (through guardians).
3. Wakalah (representation)
Abdurrahman Raden Aji Haqqi, in the book of
“The Philosophy of Islamic Law of Transactions”, mentioned four (4) phases of a person in a legal capacity (Stages of Legal Capacity:
Marhalah al-Janin (embryo stage),
Marhalah al-Saba (stage / future embryo), from human birth to age 7 years
Marhalah al-Tamyiz (phase / time to distinguish between the good with the bad, between the ages of 7 to 15 or 18 years),
Marhalah al-Bulugh (stage / puberty)
Wahbah Az-Zuhaily, adds with one stage
further that is called as “Daur ar-Rushd“, the wise stage (stage of prudence). This
stage is the stage of the most perfect in the law for a person to act.
Corporation is the party of law that is acting
in a law and the rights, obligations, and
legal relationship to other persons or other party.
An alliance (Syirkah) which was formed by
the right and has the responsibility of property separate from its founder.
Legal Basis:
Q.s. an-Nisa (4):12, Qs.Shaad (38):24,
Hadits Qudsi narated by Abu Dawud & Al Hakim from Abu Hurairah
1. Having different rights than human rights,
in which have family right, the right for
inheritance, the Legal Entity does not have those rights.
2. Not disappear with the death of the
management corporation.
3. There is a need for legal recognition.
4. It has a limited scope.
5. It has a fixed legal action, did not develop.
6. No offense punishable.
The form of the object that is subject to the
law of contract can be tangible and intangible items or services.
Terms of the contract Objects are:
1. existing when the contract was held.
2. justified by the Sharia Law.
3. should be clear and recognizable.
4. can be handed over.
The purpose of the contract can not be
contrary to the Shari'a.
requirements that must be met in order for
a contract goal (maudhu'ul aqdi / ghoyatul aqdi) is considered valid:
1. is not an obligation that has been there.
2. lasts until the end of the contract.
3. Shari'a must be justified.
Sighatul 'aqad is an expression of the
parties to a contract in the form of consent and granted.
Ijab is a statement of promise or offer of the
first party to do or not to do something.
Kabul is receiving a statement or promise or
offer of the first.
1. Jala'ul ma'na, such as the objectives
contained in the statement is obvious, so we can understand the type of contract required.
2. Tawafuq, namely the correspondence
between consent and kabul.
3. Jazmul iradataini and granted consent, ie
between the needs of the show for sure, do not hesitate and do not have to.
1. Orally ijab and kabul clearly expressed by words.
2. In writing ijab and kabul expressed in writing as a letter of agreement within.
3. With cues ijab and kabul expressed with a specific code, provided that the parties
have the same understanding as the people with disabilities who use sign language.
4. By action ijab and kabul through an act indicating agreement.
Create the rights and obligations between
the parties (subject of law).
There is a “Khiyar”, namely suffrage (the
right of choice) for performing the contract or cancel the contract to perform the
agreed.
It is very important role in Islam to protect the public from the
effects of the influence of damaged goods sale:
The buyer has the right to inspect the goods before the
agreement and advise or confirm whether the items to be purchased are free from damage.
Upon delivery of the goods by the seller, if consumers find
damage to the goods that already exist at the time owned by the seller, the consumer has the right to reject or accept a price.
If the seller makes a determination of exception and does not
consider itself responsible for the damage to the goods, while the damage was known or intentionally concealed by him,
setting disclaimer has no effect and therefore, the consumer is not bound by the determination of the release and have the option to refuse or receiving the goods
Imam Malik RA said: "... Any person who
sells ... without the agreement of
accountability, then he is not responsible for any existing damage to the goods he has to sell, unless he knows and hide the damage. If he was aware of the mistake and cover it, the determination that he is free from
