THE JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW
TO BE CITED AS: (2001) J.I.C.L Vol. 5 No. 1.
THE CONTRACTUAL CAPACITY OF Al.-MUMAYIZ
Y. K Saadu.
INTRODUCTION
In Islamic Law, fitness of person for the application of law to his : actions is called Dhimma or
legal capacity. 1 Dhimma is defined as the quality by which a person become fit for what he is
entitled to in terms of benefits (ma lahu) and to what he is on him in terms of liabilities (ma
a/aihi)? In terms of legal capacity, all persons belong to one of these categories: a mukal/af, a
mumayiz and a ghair mumayiz.
A mukal/afis a person of full legal capacity.3 In the strict sense of the that is a perso? who has
attained maturity in age (bulugh) and is of full mental capacity (' aki/).4. A person who is not a
nlutaI/gf may eith'er be a mitmayiz or a ghair ! mumayiz. A ghair mumayiz is someone who
has no legal capacity. ! This may be due to immaturity in age, or deficient in mind. He
is not a mukaI/a! Thus, minors (sabi, saghir) and the mentally deficient (majnun) are not
mukal/af
A mumayiz or sabi ya 'kif is a person who though h()s not attained full maturi~, has intelligence
and is capable of making discriminating choice. Whilst a ghair mumayiz does not have any
legal capacity, a mumayiz has a limited legal capacity. The legal capacity of the mumayiz
forms the subject of this paper.
LL. B (Hons) UDUS, LL. M (Ife), Lecturer, Department of Islamic Law, University of IIorin, Horin
1 A Zubair, Principles 01 Islamic Law olContract (Lagos: IIC Publications, 1991)pp.154-155.
21bid, p. 154.
3 J. Schacht, An Introduction to Islamic Law (Oxford, Clarendon Press, 1984) p. 125.
41bid.
5 Ibid, p.T25.
CLASSIFICATION OF TRANSACTIONS OF THE AL MUMAYIZ
Legal transactions for the purpose of the mumayiz falls into three categories, namely, transactions
entirely beneficial to him; transactions entirely detrimental to his interests; and transactions
whose benefit 01 detriment cannot be determined6 A mumaylz is endowed with limited capacity
(ahliyyaJ ai-Ada al-Naqisah) to validly enter legal transactions'. Since the limitation of capacity
is meant to protect him "' his dealings with other people, he can bind himself in only those
translations which are patently for his benefit.' Any transactions he en~ into which are clearly
against his interest will be void while in doubtful cases, the validity of such transactions will
depend on the approval of his guardian.9
1. Entirely Beneficial Transactions
Any transaction which i~ entirely beneficial to a mumayiz is valid, so blong as the Contract have
been concluded by him in accordance with the legal requiremen"'. Such t"'nsactions are regarded
as valid simply because as a mumayiz, he is capable of initiating and conducting transactions as a
result of his considerable degree of mental ability lamyiz. For instance whenever a gitl, waif or
will is made in favour of a mul1U1yiz, he is empowered to exercise his diserelion as to whether
Or npt to accept the offer. He is also qualified to be the agent of other in negotiating such
transactions. However, a mumaylz still requires the support of a guardian to protect him in his
dealings with others so as to check the possibility of cheating him because of bis limited intellect.
But in transactions where no loss could be caused to the person of a mumayiz, his guardian’s
consent may not be necessary an din case he intervenes, such intervention is regarded ultra vires
the guardian. Examples of transactions which are entirely beneficial to the mumayiz:
(i)
A mumayiz may accept an offer of gift or wakf or other gratuitous disposition in
favour. He may also be the agent of another in accepting such offers.
(ii)
A mumayiz is not only competent to accept any offer of gratuitous nature made to
him, but he can also negotiate with others to make him such offers. He is competent
to exercise his discretion to accept or reject an offer.
(iii)
A mumayiz has no capacity to employ himself at the service of another without
obtaining the prior consent of his guardian. I O Perhaps this aims to avoid
exploitation which may be more dangerous to a mumayiz. However, where a
mumayiz employs himself to the service of another and perform his own part of the
obligation, the analogical rule would bar him from claiming consideration, in case of
a dispute arising from the transaction in question, because the contract is void." But
the jurists consider this to be harsh rul~ for one whose capacity to make contracts is
defective. 12 They have therefore applied the rule of preference as against analogy
(qiyas) of Hanafi school, therefore, though the contract is void, yet a mumayiz is
entitled to claim his allowance, since it is of a benefit to him.13 However, in the
Maliki school, the contract is considered voidable (mawquj). If, therefore, a guardian
does not know about the contract until the mumayiz has performed his obligation, the
(mumayiz would be entitled to the agreed rent or market price for the services
rendered, which ever is higher.14
2. Entirely Detrimental Transactions
While a mumayiz is allowed to manage his affairs on entirely \ beneficial transactions, he is
not so allowed in transaction detrimental to him. This may be, for example, by
gratuitously disposing of his property, and without any reciprocal benefit.1S When a
mumayiz
10
Ibn Abdin, Hashiyat Ibn Abdin Vol 5 p. 91
11
Al-Ahiyyat wa Awariduha, p.9
12
Ibid.
13
Abdur Rahman, M.A, The Principles of Muhammadan Jurisprudence (According nto
the Hanafi, Maliki, Shafi and Hanbali Schools) (London and Madras, 1911) pp. 242243.
14
Ali al-Sah]idiyy al-Adawi, Hashiyat Al-Adawi ala Sharh abi Hasan ibn Abi Zaid,
Vol.1, (dar alFikr, Lebanon, undated) p. 67.
15
Abdur
Rahman,
op.cit,
pp.
242-243.
enters into transaction of this nature, it is regarded void:6 This is so whether the transaction of
this is entered into and concluded with or without the consent of the guardian, because the
guardian is there to protect the interest and welfare of the ward and therefore not authorised to
act on behalf of the ward to the extent of exposing his property to suffer unnecessary
dissipation17 So also the guardian cannot delegate to the ward the power which he himself does
not have18 Examples of disposition which are entirely detrimental to the mumayiz;
(i) A mumayiz is prohibited from dispositions his properties and rights without
adequate consideration, such as making gifts (hiba) and donations
(wakf)
(ii) A mumayiz is prohibited from lending out his money giving his property
as ariyah (fee accommodations) and standing as guarantor (daman).
.
(iii) A mumayiz has no capacity to dissolve his marriage contract.
A mumayiz shall have to abide by these rules, otherwise, his disposition shall be null
and void, because the property of a mumayiz should be kept intact for him until he
attains majority.
3. Indeterminable Transactions
This category of transactions lies between the two extremes which were discussed
above. It is classified as "indeterminable19. In this third category, whether there is gain
or loss cannot be determined from the form of the transactions alone. Therefore, the
rule applied to it differs according to the nature of the case. Examples of this are
contracts of sale, hire and marriage. Where an indeterminate contract is entered into by
a mumayiz, it is regarded as sahih-mawquj; a term which literally means valid but
suspended, and legally means voidable contract20. Such contract are valid (sahih)
because a mumayiz's expression (ibarah) of will is capable of producing its
16
Ibid, p. 234.
17
Ibid, p. 242
18
Ibid, pp. 242- 243.
19
Zubair , op cit, p 164
20
A.A Abdullah, The Legal Capacity (unpublished paper on file with the author) page
30
legal effects.21 But since this particular class of transaction involves he complex issue
of gain and loss and a mumayiz may not fully nderstand its nature, the contract though
valid is initially regarded as suspended (mawqzif).22
The weakness of a mumayiz's mental capacity (sahih) is ratified either by his guardian
or by himself on attaining majority.23 And until either the these happens, the contact
remain voidable (mawqf).
Therefore, if a mumayiz entered into a contract of this
nature after obtaining the prior consent of his guardian, the contract is regarded valid
and operative (sahih-najiz) according to Hanafi, Maliki and Hanafi schools.24 But if
made without the pdor consent of his guardian, and contract is then regarded as
voidable (mawqf) according to Hanafi and Maliki schools.2s It shall remain voidable
until any of the following happens26:
(i)
If the Contract is ratified by the guardian. Where the guardian subsequently
gives his approval, the contract will become valid.27 Subsequent ratification
has the same legal effect as the prior consent of the guardian.
(ii)
If the contract is rejected by the guardian. Where the guardian. Where the
guaradian, on the other hand rejects the contract, the contract which was
initially voidable (mawqf) shall now be regarded void ab initio.
(iii)
Where the guardian neither approves nor rejects the contracts or in case there
is no natural or appointed guardian, the contract remains voidable on the part
of the mumayiz until the guardian, if any, chooses to approve or reject; or
until the mumayiz himself attains majority and within a reasonable time
approves or rejects the contract.
21
Ibid, p. 234.
22
Zubair , op cit, p 164-165
23
Abdullah op cit, p. 30
24
Ibid, p. 61
25
Ibid,
26
Ibid,
27
Ibid,
In an these circumstances, the contract is binding on the other party.
CONCLUSION
The law relating to the contractual capacity of the mumayiz is designed to protect him from
exploitation and unscrupulous deals. The law realises that there are transactions which may be to
the benefit of a mumayiz, hence the limited legal capacity. Persons entering into contract with a
mumayiz should be aware of the limitations of a mumayiz. Such persons can safeguard
themselves by insisting that the contract is concluded by the guardian of the mumayiz on behalf
of the mumayiz rather than by the mumayiz 'himself.