Contractual Legal Capacity and Its Impediments under Islamic Law
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Date
2021
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Journal of Contemporary Commercial and Industrial Law, Department of Commercial and Industrial Law, Faculty of Law, University of Port Harcourt, Choba, Rivers State, Nigeria,
Abstract
Contract law can be viewed as the main instrument of facilitating social interactions and
distributing legal entitlements. Under the Islamic law, contract is “an expression of the matching
between a positive proposal made by one of the contractors and the acceptance of the contract by
the other contractor in a way which has an impact on the subject of the contract”. It well established
that, for any contract/transaction to be validly concluded, there must be tarāḍīl-mutaʻāqidayn;
(mutual consent or free consensus of the parties to the contract). Also, at-tarāḍī is only legally valid
when the parties to the contract possess ahliyatul-ʻaqd (contractual legal capacity). Consent is when
one does something voluntarily without being forced or coerced to do the act. In other words, contractual
legal capacity of the party to a contract must be free from any invalidating factors. It is therefore
pertinent to discuss contractual legal capacity and various factors that affect a person’s legal power
from disposing his property and concluding the contract on the ground of lacking valid consent.
This research is descriptive and doctrinal aiming at providing legal material for legal practitioners
especially those who do not comprehend original language of the law. The research consulted
Qur’ān, Sunnah, fiqh manuals, tafsīr books and academic literature. Our findings reveal that lack
of proper understanding of the contractual legal capacity and its impediments may lead to
miscarriage of justice. The paper therefore recommends that al-quḍāt (judges), muḥāmūm
(lawyers), students of law as well researchers be well informed and be guided accordingly.
Keywords: Islamic Law of Contract, Contractual Legal Capacity, Impediments of Contractual
Legal Capacity, Interdiction of Contractual Legal Capacity
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Citation
ELESIN AMJ (2021), Contractual Legal Capacity and Its Impediments under Islamic Law, Journal of Contemporary Commercial and Industrial Law, Vol. 2, Issue 2, December 2021, p. 99-124, published by Department of Commercial and Industrial Law, Faculty of Law, University of Port Harcourt, Choba, Rivers State, Nigeria