Today, we shall commence a discussion on the rights and obligations of the parties in a Shariah contract. However, before we do that, there is a need to further elaborate on the concluding point of last week’s article, ie the eligibility parameters for a Shariah compliant transaction.
We discussed last week that the Shariah principles will consider any contract invalid where it is impossible to be fulfilled. In the same manner, the Shariah strictures do not acknowledge any contract which has been made for the sale and purchase (or lease) of public domain properties.
What are public domain properties? These are the assets and items of nature available for free public use, such as roads, rivers, oceans, mountains, deserts, green fields, forests, places of worship, graveyards and other such types of assets. All such properties are immovable in nature in the way generally known, ie not able to be moved from one place to another. Shariah does not allow trading in public domain properties or items so as not to deprive anyone from enjoying or utilizing them freely.
Nonetheless, any private domain, immovable or movable, property can be freely traded and can be made part of Shariah contracts. These are properties which are in the ownership or possession of a certain person(s) or an entity in a legal manner. Moreover, while anyone can freely roam around in a public domain property, it is necessary to seek permission to enter a private domain property. Examples are someone’s house where you need the owner’s permission to enter, and the doorbell or a knock on the door provides the means of seeking such permission. The other examples of private domain properties are parks, museums, airplanes, trains, marine vessels and such where you are required to buy a ticket which is tantamount to seeking permission before entering or utilizing such properties.
Can a road be made a private domain property? Yes, by applying toll, a public domain road can be converted to a private domain property since the toll amount paid shall be equivalent to seeking permission to drive on the road which is a private domain asset.
Another interesting example of a private domain asset is the country’s airspace which is not freely available for use. The airlines using airplanes passing through a country’s airspace are required to pay a certain agreed amount to the civil aviation authorities of that country. Similarly, mobile phone network operators and TV or radio stations have to pay a license fee to be able to use the airspace of a country to provide their respective services.
Now let us return to the rights and obligations of the parties to a contract. The first right a party has is that the counterparty that he or she is entering into a contract with holds the ‘perfect capacity’. By perfect capacity, Shariah means that both parties are above 15 years of age and possess sound minds. How would you judge the aforementioned criterion in a person? Quran defines it in a clear manner through the following verse (V# 6, Surah Al Nisa or Chapter on Women): “And put the orphans to trial (of their intelligence) until they reach the age of marriage (adulthood); then if you find in them sound judgment, deliver to them their property”
Although the verse is addressed to the guardian of an orphan, it also gives us a guideline as to ascertaining the ‘perfect capacity’ in a person, which is essential for entering into a contract by him or her.
There are circumstances when this ‘perfect capacity’ could be temporarily lost. Such circumstances and their interpretation are as follows:
• State of intoxication: Islamic jurists accept that a person may not be held responsible for his obligations under a contract if he could prove that he was involuntarily intoxicated for the purpose of making him enter into the contract, which he would not have entered had he not been intoxicated.
However, they view that in the case of voluntary intoxication, he will be held responsible since it is considered an offence under Shariah to consume such drinks. As such, he cannot be excused to skip the punishment in case of non-fulfillment of his obligations in terms of a contract entered into by him while he was drunk voluntarily. Actually, this approach is aimed to work as a deterrent.
• State of coercion: In Shariah, coercion or duress means to force a person to perform an act which he dislikes and which he would not want to perform under normal circumstances. Coercion could be in the form of kidnapping and blackmailing, bodily harm, threat to life, confinement or other such unethical moves.
As the coercion eliminates genuine intention and free will from a person of ‘perfect capacity’, jurists believe that such a person should not be held legally responsible for his obligations under a ‘coerced’ contract, provided he can prove that he was certainly coerced. If such a contract is executed, the coercer will be held responsible for damages toward the coerced party.
The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions of the Dubai Islamic Economy Development Centre, nor the official policy or position of the government of the UAE or any of its entities. The purpose of this article is not to hurt any religious sentiments either consciously or even unwittingly.
Sohail Zubairi is the projects advisor with the Dubai Islamic Economy Development Centre. He can be contacted at [email protected].