Concept of Contract in Islamic Law (KKI)
The Concept of
Contract in Islamic
LawOleh: Dr. Gemala Dewi, SH.,LL.M
Introduction
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: 11The Ethics on Trade /Transaction
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 downthe 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.
Definition of Contract (akad)
Understanding Contract in Law
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).
Pillars of Contract 1.
Al ‘Aqidain (the subject of contract) 2.
Mahallul ‘Aqad (the object of contract) 3.
Maudhu’ul ‘Aqad (the purpose of contract) 4.
Sighatul ‘Aqad (ijab and kabul)
Al ‘Aqidain (the subject 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
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.
Subject Terms Law 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.
3 important things in the subject contract 1.
Ahliyah (proficiency): Ahliyah wujub (proficiency in the right)
Ahliyah ‘ada (proficiency in performing
responsibilities).
Niyabah Ashliyah (doing him/her self)
Niyabah al-Syar’iyyah (through guardians).
3. Wakalah (representation)
Stages in the legal capacity of a
person 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)
Stages in the legal capacity of a
person 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
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
Legal Entities as Legal Subjects
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.
Mahallul ‘Aqad (the object of contract)
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.
Maudhu’ul ‘Aqad (the purpose of contract)
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.
Sighatul ‘Aqad (ijab and kabul)
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.
Terms in Ijab and Kabul 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.
Forms of Ijab and Kabul 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.
Consequences of Contract
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.
Consumer Protection in Khiyar 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 isnot bound by the determination of the release and have the
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 responsibility, cannot release him ... "
Thank You