Islamic Fin

© Dr Hurriyah El Islamy, 2008

DEFINITION

• Literally, the word “al-’Aqd” means to tie (between two ends), to fasten, to link together. • In legal view, it has two interpretation either general interpretation or specific interpretation. • In general term, it means anything that is intended by a person to do/perform; either based on his own will, eg, endowment (waqaf), divorce (talaq); or depended on wills of at least two [arties, eg, sale (al-bay’), marriage (nikah) •Specifically ‘aqd means a connection of the words of one party (ijab) to the words of the other party (qabul) which constitutes legal implication on the subject matter.

‘AQD v. CONTRACT

• From the definition, the term ‘aqd is more or less the equivalent of the technical term of ‘contract’ in Western Jurisprudence. • However, ‘aqd does not necessarily involve agreement (which is a necessary element in a conventional contract) because the term is also used to describe a unilateral juridical act which is binding and effective without the consent of the other party. For example: Talaq. • Furthermore, in Western Jurisprudence a contract is only enforceable if there is a consideration that moves from the promisee. On the other hand, in Islamic Law an ‘Aqd does not necessarily involve consideration. For example: Wasiah (wills), hadiah (gift).

‘AQD v. CONTRACT

• Additionally, the Western Jurisprudence defines contract as a promise or set of promised. According to Islamic Law a promise may not be legally enforced although it is strongly recommended by religious and moral values to be fulfilled. (Surah al-Saf 61:2) (However Hanafi School of Law is of the view that a promise coupled with condition is legally enforceable) • Therefore a breach of promise to marry does not give a cause of action according to Shari'a but may be enforceable by civil law (see Article 50 of the Civil Code)

LEGAL AUTHORITY

Among the legal authority that show the recognition of ’aqd in Islamic Law as follow: • “O ye who...