PRESENTED BY:
SITI ANNUUR BINTI ALI
NAJMIYAH BINTI MUHAMAD
ZANARIAH BINTI ABU ZARIN
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QUESTION 7
One of the pre conditions imposed in
contract is intention.
a)Discuss the meaning of intention
b)Identify the elements that formed a
contract by taking Zahir and Batin
intention into account
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 There
are five major legal maxims in Islam. One
of them is matters are determined according
intention.
 Under
this kind of legal maxim, all the behaviors
and attitudes of everyone are depends on their
intentions.
 This
is a comprehensive maxim that has
implications that Islamic scholars have discussed
in various areas, including devotional matters,
commercial transactions and crimes.
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1) Al Quran
 Al-’Imran :145
And no human being can die save by God's
leave, at a term pre-ordained. And if one
desires the rewards of this world, We shall
grant him thereof; and if one desires the
rewards of the life to come, We shall grant
him thereof; and We shall requite those who
are grateful to Us.
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2)As-sunnah
 On the authority of Abu Hafs, Umar Ibn alKhattab, who said: ‘I heard the Messenger of
Allah:
“The actions are Innama (only, certainty) tied
to the intentions and every person will earn
that which he intended. Therefore, he whose
migration was for Allah and His Messenger
s.a.w then his migration will be for Allah and
His Messenger; and he whose migration was
to achieve some worldly gain or to take a
woman in marriage, then his migration will be
for that for which he migrated.”
Sahih Al-Bukhari and Muslim
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 Linguistically
 Therefore
intention means An-Niyyah.
one’s Niyyah is to do something
 To
describe the direction or the place that one
intends to go to, or the meaning that one
intends to deliver.
describe the heart’s intending an action or
planning to do an action.
 To
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 In
Islamic terminology, there is NO special
meaning for the word “An-Niyyah”.
 Giving
a special meaning to the word AnNiyyah in the Islamic Terminology has no
proof.

An-Niyyah is one’s intention of the heart to
perform an action.
 In
other word, the meaning of intention,
therefore, is the will directed towards the
action.
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 Any
contracts refers to its meaning and
purpose.
 The
meaning of the rule is that the
assumption lies in the akad, its meaning and
purpose and not to forms and words.
 That
means, in any valid contract in which
there is a distinction between the intention
and purpose of the covenant that is seen
through words or what is remarked upon in
the contract.
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 Ibn
Rusyd explains in his al-Muqaddimat wa
al-Mumhidat that the rule is recognized with
the rules: Where the laws are for the
meanings.
 In
other word, something in the contract takes
approximate purposes and meanings of
words in the contract and its goal and not
forms of the word.
 Therefore
the words in a contract must use a
certain word or intention to become legitimate
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 An
example, if there are two people who do a
contract with word to give a good that has
been provided with payment and has
received a good before the price is fixed.
 The
contract is a sale and purchase contract.
This is because the final contract to buy or
sell was intended by them and not as a
meaningless verbal contract.
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 To
produce a contract, there must be an
intention to contract on both sides.
 This
intention is composed of two types of
intention which are zahir intention and batin
intention.
 Batin
intention is a matter that is hidden in the
hearts and can not be seen by naked eye.
 While
zahir intention comes in form of words.
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 The
relationship between these two intentions
is, zahir intention explain the existence of
batin intention in the hearts
 With
the two intentions, the contract is
considered valid and give effect to all parties
involved
 Therefore,
all words spoken by a person who
has no intention to deed, as spoken by a
madman, or one who was asleep, did not
give any effect and there is no contract that
exist
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However,
sometimes zahir intention
cannot give a good description or
explanation of batin intention.
In
such situation, evidence must be
based
on
several
different
circumstances which formed a contract,
taking zahir and batin intention into
account.
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 1st
element
Act never planned at all. It can be illustrated in
two forms:
1)A contract made by an insane/sleep person
2)It also happen if the act not in accordance
with the contract, such as A is unaware with
what she has mentioned in the contract
 Under
this circumstances, the contract is
considered as null and void and no effects
towards contracting parties
 However, Muslim jurists are in dispute in;
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1)Action done by an intoxicated person
Jumhur
-Valid contract
-Such contract has effect to the person
-Punishment toward him for drinking voluntarily
Second view
-Distinguish between cause of intoxication
-If willingness: follow the jumhur view
-If force/medication: not valid / not enforceable
Third view
-Not binding at all
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2)Action done by intention
Hanafi
-The action is already constitute a contract
- Act is done by his own choice
-Even though it is a mistake, it can be
remembered at particular time
Other view
-not binding
-contracting parties is not liable
-not on his own choice
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Surah
al-Ahzab 33:5
And you would not be at fault for any
mistake you make, in this respect,
except, in, what your hearts may
premeditate, after the prohibition [has
been issued]. And God is Forgiving, of
whatever you said before the prohibition
[was issued], Merciful, to you in this
respect.
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On
the authority of Ibn Abbas that the
messenger of Allah said:
"Allah has pardoned for me my people
for [their] mistakes and [their]
forgetfulness and for what they have
done under duress.”
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 2nd
element
Contract was done voluntarily by his choice
and he himself understand the action taken
but he is not willing and does not consent to
the contract either it is done by force or
colloqium language kiddingly or to show off
1)Action by kidding
Hanbali and majority of Maliki
-They considered this type of contract as not
valid
-Null and void except in 5 types of contract
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-in which these contract are binding even it is
made kiddingly.
-5 serious matters cannot be taken kiddingly,
once done it is binding
-marriage, divorce,ruju’,taking oath and taking
leave of slave
Shafi’I
-binding contract
-it is done on voluntarily basis
-cannot use kidding as an excuse to escape
from the liability in the contract
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2)Action done by force
Hanafi
-Valid
-but fasid (voidable)
 However,
in 5 serious matters, the contract still
enforceable even by force.
Others view
-considered as null and void
-not binding
-not effective
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 3rd
element
Unusual way of contract or abnormal
performance way of contract
Eg: A tends to sell the goods but
pronounced as hibah.
Hanafi
-valid (sahih) contract based on intention of
contracting parties
Hanbali and Shafi’I
-valid
-except for the marriage contract
-where the used must be precise
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 4th
element
Act of contract is straightforward but has a
hidden agenda
Eg: Selling grapes for making liquor wine
: Nikah muhallil or cina buta
Shafi’i
-this type of contract is valid
-because we only judge from the appearance,
what we can see and not inside it
Others
-null and void
-in Islamic Law intention is very important
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According to this opinion;
- contract made with bad intention is
considered invalid although the contract
is made with right way and
implementation.
- Because in ascertaining the validity of a
contract the implied intention, either
favourable or not must be taken into
account
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 Al-Nisa
4:12
'Bequests which cause injury' are those that
entail depriving deserving kin of their
legitimate rights. Similarly, the debt which
causes injury is the fake debt which one
falsely admits to owing, and any other device
to which one resorts merely in order to
deprive the rightful heirs of their shares in
inheritance.
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 Schools
of fiqh differed on the issue of
determining the basis of contract validity.
Some emphasizes on its legal form while
others stress on its substance and the
intention of contracting parties.
 Shafi’i
found it is impractical to determine the
validity of contracts by means of intention, as
it is difficult and sometimes impossible to
identify the intention of the contractors.
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 While
Malikis and Hambalis emphasize that
validity of a contract must be based on the
real intention or the substance of the
contract.
 Apparently,
the scholars of fiqh only differ in
terms of basing the validity of a contract.
However they never differed on the issue of
basing the permissibility of a contact on its
substance or the contractors’ niyyah.
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ilot_(final) - LAW 737 Islamic Law of Transaction