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Mohri Bibee Vs. Dharmodas Ghose I.L.R Cal. 539 The obligations and engagements of two contracting persons in respect of
particular matter. It expresses combination of offer and acceptance.
Facts
(b) Sir Abdul Rahim
In this case, a minor Dharmodas mortgaged his house in favour of Brahm
Dutt, husband of Mohri for a loan of Rs. 20,000, out of which the mortgagee A contract is The conjunction of the elements of disposition namely offer
(money-lender) paid the minor a sum of Rs. 8,000. Subsequently, and acceptance.
Dharmodas sued for setting asode the mortgage, stating that he was
underage when he executed the mortgage. The Privy Council held that the Contract in the Light of the Holy Quran
mortgage was void and, therefore, it was cancelled.
And keep the covenant, Lo! Of the covenant it will be
Held (Privy Council) asked. (BANI ISRAIL:34)
The court also did not accept the moneylenders request for the repayment O ye who believe fulfill your agreements. (Al-Maidah:1)
of the amount advanced to the minor as part of the consideration for
mortgage. The defendant claimed that Dharmodas had declared to be a
major when the contract was made, and if the declaration was false, he (the
defendant) was entitled under sections 64 and 65 to receive back the money
he had advanced to Dharmodas, but the Privy Council set aside that plea Contract in the Light of Hadith
and observed that Section 64 and 65 are not enforceable in cases where no
Prophet ( Peace Be Upon Him) said The Muslims will fulfill their settled
contract exists, and a contract did not exist since it was made with a minor.
contracts.
Define Contract under Islamic Law and its Essentials
Essentials of Contract
Contract is aqd.
Islamic Law specifies following four essentials of a valid contract.
(b) Linguistic Meaning
(i) Faalia (Parties)
Literally aqd means conjunction or tie.
This cause appertains to the persons making the contract. A valid contract
requires that there must be two parties involved.
(c) Legal Meaning
(ii) Maddia (Proposal and Acceptance)
As a term of Islamic jurisprudence aqd means conjunctions of the elements
of disposition, namely, proposed (Aijab) and acceptance (qubool).
This appertains the essence, namely, Proposal and acceptance. It is Generally, Muhammadan Law does not require any formality such as
essential to constitute a valid contract that there must be two parties, one English law but the following requirements have to be fulfilled to form a valid
parties, one party should make a proposal and the other should accept it. contract.
This cause related to the outward manifestation, that is the minds of parties All that is required, as we have seen, is declaration of consent by each party.
must agree and their declaration must related to the same matter. The declaration which is first made is called proposal and the second
declaration is called acceptance. The two minds must be in agreement
Illustration otherwise there is not real consent.
A owns two houses, one in Karachi and second in Hyderabad. B offers him (ii) Same Meeting (Majlis)
to buy one of his houses. B wants to buy the house in Karachi and
pursuance of the object he makes offer, but on the other hand. A accepts his The proposal and acceptance must be made at the same meeting (Majlis),
offer considering the house in Hyderabad as the subject matter of the either in fact or what the law considers as such.
contract. The contract is not valid because their promises do not release to
the same matter. Illustration
(iv) Ghyia (Legal Relationship) A man proposes face to face to another to sell his horse to him, if the person
addressed leaves the place without signifying his acceptance the offer
This cause relates to the result aimed at, i.e, the object of the contract must comes to an end, because there is no obligation on the owner of the horse to
be to produce a legal result. This is regarded as the dominant idea of a keep his offer open.
contract in Muhammadan Law that it establishes a tie of legal relations
arising from the consent of the minds of two persons to deal with each other But, if the offer is communicated by means of a messenger or a letter, the
in respect of certain rights. meeting for the purpose of acceptance is held to be at the place and time the
message reaches the person for whom the offer was intended. If the person
Illustration then signifies his acceptance the contract is concluded.
A sells or gives an object to B. the former consents to pass on his proprietary (iii) Use of Words
rights therein to the latter who consent: to take the property with whatever
obligations might be incidental thereto, such as the liability to pay taxes if the The Books speak of certain words as being plain (Surech) and
subject matte of the transaction be land, and to feed if the thing sold or given certain other words as being allusive (Kinaya) in relation particular
be an animal and in the case of sale, also to pay the price. In the case of a kind of disposition. What is meant is that when a man has used plain
gift, on the other hand, there is the moral obligation of gratitude on the part language, there is not need for inquiry as to what he meant, but such
of the done towards the donor, and Muhammadan Law does not ignore the
an inquiry becomes necessary when he has used ambiguous
moral aspect of a transaction.
language. It is not to be supposed that so far as contracts and
Formation of Contract dispositions relating to property are concerned that the mere
utterance of certain words without the corresponding intention as
understood in Muhammadan Law, would effectuate a transfer of The contract of marriage must be based on the free consent of
property or create any obligation. parties, if the consent is not free the marriage is not valid under
Islamic Law.
Conditions of a Contract
(iv) The consent without knowledge of the Articles
Following conditions are provided under Islamic Law for the validity
of a contract It is again necessary that a contract for an article which does not
exist or which is defective apparently or otherwise is ineffective is
(i) Legal capacity of Parties void.
The validity of a contract depends first of all on the legal fitness of (v) Consideration
the person entering into it. If the persons making a contract or
disposition have not the necessary capacity, contract would be void This is an important factor but it can explained that in agreements
altogether. where price is a deciding factor, the consideration surely passes on
to the other. As regards agreement of gift though there is no
(ii) Fitness of Subject Mater exchange of consideration, yet the done is morally obliged to the
donor.
Another essential of a valid contract like that of any other juristic act
is the fitness of its subject matter (mahal); if the subject matter is not Final Analysis
fit for he purpose, the contract relating there to would be void
altogether. Hence for final analysis, we can say that a contract is a biding
agreement between two parties which is legally enforceable. The
Illustration Rules regarding contract under Islamic law is very strict. Under
Islamic law for a valid contract there must be present four causes in
If A and B enter into a contract for the sale of a horse and while they
the contract viz., faalia and maddia and suria and ghayia. The first
discuss the sale price, the horse dies, there is no consent, as the
essential of valid contract is that parties must have reached
subject of the contract itself is extinct. Similarly, a marriage within
agreement. To constituents of an agreement are Ijab and Qabul
prohibitory relationship is void ab initio.
which forms it into a promise which is enforceable by Law.
(iii) Free Consent
Illustration