Principles of Islamic Jurisprudence by MH kamali

Principles of Islamic Jurisprudence by MH kamali

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Unformatted text preview: d when any of these is lacking or deficient. An act of devotion which is void is nom-existent ab initio and of no consequence whatsoever. The majority of ulema have maintained a similar view with regard to transactions, namely, that a transaction is valid when it is complete in all respects. Only a valid contract of sale, for example, can give rise to its legal consequences, namely, to transfer ownership of the object of sale to the buyer and to establish the vendor's ownership over its price (thaman). A contract is void when it is deficient in respect of any of its requirements, although the Hanafis are in disagreement with the majority over the precise nature of this deficiency. The majority of ulema maintain that invalidity is a monolithic concept in that there are no shades and degrees of invalidity. An act or transaction is either valid or void, and there is nothing in between. According to this view, fasid and batil are two words with the same meaning, whether in reference to devotional matters or to civil transactions. Likewise, to the majority it makes no difference whether the deficiency in a contract affects an essential element (rukn) such as the sale of a dead carcass, or a condition, such as sale for an unspecified price; both are void and non-existent ab initio. The Hanafis have, however, distinguished an intermediate category between the valid and void, namely the fasid. When the deficiency in a contract affects an essential requirement (rukn), the contract is null and void and fulfils no legal propose. If, however, the deficiency in a contract only affects a condition, the contract is fasid but not void. A fasid contract, although deficient in some respects, is still a contract and produces some of its legal consequences, but not all. Thus a fasid contract of sale establishes the purchaser's ownership over the object of sale when he has taken possession thereof, but does not entitle the purchaser to the usufruct (intifa'). Similarly, in the case of an irregular contract of marriage, such as one without witnesses, the spouses or the qadi must either remove the deficiency or dissolve the marriage, even if the marriage has been consummated. If the deficiency is known before Principles of Islamic Jurisprudence ~ Kamali 295 consummation, the consummation is unlawful. But the wife is still entitled to the dower (mahr) and must observe the waiting period of `iddah upon dissolution of marriage. The offspring of a fasid marriage is legitimate, but the wife is not entitled to maintenance, and no right of inheritance between the spouses can proceed from such a marriage. The Hanafis describe the fasid as something which is essentially lawful (mashru`) but is deficient in respect of an attribute (wasf) as opposed to the batil which is unlawful (ghayr mashru') on account of its deficiency in regard to both essence (asl) and attribute The Hanafi approach to the fasid is also grounded in the idea that the deficiency which affects the attribute but not the essence of a transaction can often be rem...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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