ISLAMIC CIVIL LAW:

Islamic Civil Law

Introduction

Islam as we know forming the Islamic traditions, Islamic law is also known as shariah which is referred to as divine law. The divine law considered to be immutable to the extent of the Quran and Sunnah but it can be further interpretable where the Quran and Sunnah are silent. Ijma and Qiyas are given the solutions at this stage; Fiqah is the major source for interpretations. Whereas, the Islam is complete code of life and it does not only provides a legal system to its followers to settle down their all kind of social issues but also provides a comprehensive system of mutual agreements amongst the society. Civil law is a major portion of law of every society because it based upon social matters, the Islamic legal system proved comprehensive guidelines and solid rules of civil laws. The fundamental rule of Islamic civil law is that all the social or business contracts must be on the basis of equality and the conditional or biased contract should be considered invalid. Whereas, there two types of agreements;

  1.  Verbal
  2.  Written

The following are some kind of agreements that can be executed under Islamic civil law.

Waqf (Mortmain Property)

The literal meaning of the Waqf is detention. The legal meaning of Waqf according to Imam Abu Hanifa, is the detention of a specific thing in the ownership of the Waqf and the devoting of its benefits in charity to the poor or other good works. A waqf put out the rights of the Waqif and transfers to Allah Almighty.

Waqf as defined in the Waqf Act

Waqf means a permanent declaration by a person professing the Muslim faith of any property for any purpose recognized by Muslim Law as religious, pious, or charitable.

The following points are important to note with respect of Waqf.

  • The declaration must be permanent
  • The subject of waqf may be any property
  • The subject of waqf must belong to waqif
  • A waqf  may be testamentary
  • Waqf property cannot be alienated

Waqf alal- Aulad

It’s also called a private waqf. It is for the benefits of the settler’s family and his descendants. Waqf alal-aulad considered being a highly awarded act to its followers.

Bequest

A Bequest or Will means an endowment with the property of anything after death as if a person should say to another.

“Give this article of mine, after my death, to a particular person. The thing so given is termed as Legacy, the person who is giving is Testator, the person in whose favor the Will is made called the Legatee and the person who is appointed for execution is called Executor”

Important Points

  • A person can make will either orally or in writing.
  • Without the consent of other heirs, no will is valid
  • A Muslim cannot bequest more than one-third of his/her estate without the consent of heirs
  • If Testator has no heirs, he may bequest the whole of his property to a stranger
  • It is sufficient that the subject of Legacy exists at the time of Testator’s death
  • The bequest in future is void
  • A contingent bequest is void
  • An alternative bequest is void
  • A bequest may be revoked either expressly or by implication

 Contract

The most important and frequent mode of acquisition of ownership is transferred, by an act of the person having the ownership to another person. This kind of transfer is called a contract. According to law, it means a conjunction of the element name, proposal, and acceptance.

Formation of Contract

According to Islamic civil law, the formation of a contract does not require any formality. Basically the offer and acceptance are required and both things should be at the same time or in the prescribed time for the lawful object against the lawful consideration and with the free consent of the parties. If anyone of the parties is under the influence or pressurized by someone such agreement or contract would be void.

Types of Contract

Hire

“Ijarah” is defined as the sale of ascertained usufruct in exchange for some ascertained thing, it includes, leases, contracts of bailment, and personal and professional services. ‘Usufruct’ is said to be ascertained when the period of us of use and enjoyment of the things by the hirer is fixed. In the language of the law, it signifies a contract of usufruct for a return.

Loan

            Loan or Ariyat signifies an investiture with the use of a thing without a return. In other words, it may be defined as giving things by one person to another person without receiving anything in return. The intention is that the other person should use usufruct.

Guarantee

A contract of guarantee means the responsibility or liability of a person to that of another person in respect of a demand for something. The contract of guarantee may be for the production of a person, the discharge of a pecuniary obligation or debt, the delivery of property, and likewise.

Arbitration

            Under the Islamic civil law the disputants are allowed to resolve the matters through arbitration. The person using the powers to decide the matter is called arbitrator as like “Qadi”. On the filing of an award in a court by the arbitration, a decree may be passed accordingly.

Partnership

            When two are more persons may combine to carry on business on some conditions that the capital and the profits will be shared among them. Such a combination is called “Partnership”.

Revocation of contracts

            The contracts can be revoked by the executant or after the completion time period.

Conclusion

                             To conclude, we can say that Islamic civil law provides us the comprehensive solutions over civil, criminal, evidence, and other issues for easement of daily life to its followers. For mutual relationships and agreements of people of the society, Islamic civil law is defending the rights but also facilitating to teach the good deeds to its followers for the establishment of the best society. These agreements can be amended, alter, and revoked from time to time by the mutual consent of the parties or through arbitration.

2 Comments

  1. MARVELLOUS,it is vry comprehensive,adorable and fine article. This are article fully grasped the kinds of Islamic contracts in short manner which also keeps alive the interest of a reader.

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