group members nur arfah bt abdul sabian 2009810436 arsidah bt. arhan 2009587659 amir nur ikhwan b....
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QUESTION 2CONCEPT OF MISTAKE AND ITS CATEGORIES
ISLAMIC LAW OF TRANSACTION
GROUP MEMBERSNur Arfah Bt Abdul Sabian 2009810436
Arsidah Bt. Arhan 2009587659
Amir Nur Ikhwan B. Amernudin 2009482894
Jaslina Bt. Kassim 2009677636
IMPEDIMENTS TO CONSENT IN ISLAMIC CONTRACT
The jurists determined that
any consent which is impeded is
consent conditional upon the cause of
contract
Considered the consent is
impaired and invalid – no an
actual agreement
Eg : victim of mistake, fraud or deceit – the
contract become voidable and burden
of proof lies in establishing that the
consent had been induced by misleading
factors.
4 Grounds of the impediments
Mistake Fraud
Duress Effective constraint
Definition of Mistake (Ghalat)Term use - Ghalat,which applies to both to calculated and material error.
In Maliki texts – jahl (ignorance) is found to replace ghalat.
Oxford law dictionary – define mistake as a misunderstanding or erroneous belief about a matter of fact or a matter of law.
According to Rayner in his book ‘the theory of contracts in Islamic law’, mistake can be defined as a false or inexact representation of reality, may be regard to different elements of a contract.
Sanhu’riMistake is given the least consideration among the impediments of consent despite the fact that it is the most conducive to be dispute.
Concept of Mistake (Ghalat)
Concept of mistake in islamic contract
Islamic law conceives of mistake as a substantive
or intrinsic element which capable of occurring
only during the formation of contractual
agreement.
Mistake could arise from an assumption as to the
existence, quality or quantity of the contractual
object or to the nature or existence of the contract
itself.
The provisions concerning mistake are
scattered and usually are to be found in the
books of fiqh among the discussion in option
of description, defect or sight.
The Islamic concept of mistake is inextricably
bound to the notion of consent in contract.
The law lacks in formulated theory because
the provision of mistake are in actuality,
mostly preclusions or safeguards designed to
prevent its very incidence.
Categories of Mistake
MISTAKE AS TO OBJECT
Mistake as to Object of the contract
- It is the most
important category of
mistake.- It consist of 2 types
of mistake:1)
substantive mistake
2) mistake as to
insubstantial qualities
of the object.
- It deals with the
controversy between continuing commercial
relations and the
maintenance of due
respect for real
consent. It includes 3 different options
1Option of
defect
2Option of descriptio
n
3Option of inspection
MISTAKE AS TO MEANING (GHALAT AL-MAA'NA)
Mistake as to meaning(Ghalat al-Maa’na)
According to classical jurists, a mistake with
regard to the substance (Jins) of the object will
constitutes the contract void ab nitio.
It considered as substantive mistake.
Based on Art. 208 of Al-Majella:
“If the object is declared in kind (Jins) and the
object proves to be another kind, the sale is
invalid (batil)”.
ExamplesA sold B a stone as sapphire which is subsequently realized to be a mere glass.
1
A made a contract to sell wheat to B but then it turn out to be flour or bread.
Both mistake is substantive and real, as for second example, despite the fact that flour, wheat and bread are actually are different stages of process of the same substance.
2
In this case, the mistake as to meaning is
also actionable under the option of
description.
This shows that the Islamic doctrine of
mistake takes on noticeably wider ambit
that mistake in common law.
Mistake as to desired quality (insubstantial) of the object
Insubtantial quality (Wasf) of a contract refer to
the object being in the same substance as
contracted for, but different in its quality.
It is regarded as valid but not binding - the remedy
is sought under Islamic law is not under mistake
(ghalat) but either under the option of defect or
description.
Example of insubstantial mistake
if a seller represents the stone as refer to a sapphire, and it is later deemed to be a ruby.
the sale is valid as it is not mistake as to substance of the object and is not deemed to have affected the usufruct intended by the purchaser and the true sale.
1
MISTAKE AS TO PERSON
Mistake As To PersonNot explicitly formulated by the classical
jurist.
Resolution may be adopted to form general
outline of a doctrine.
Not affect the contract unless the persona
of the contractor, or a substantive quality
thereof, which give rise to a mistake, is a
legal cause to the contract.
Mistake As To PersonSpecific contract in which a mistake as to
person of the co-contractor has become
importance.
Party who suffers is given the right to
annul the contract following the French
Civil Law concept.
Contrasted with English Common Law
where Mistake as to Person falls into the
category of Mistake which negate consent
Mistake As To Person1) Marriage Contract.
The person of the spouse is generally of prime
consideration in the contract.
Sanhuri, a modern author, distinguish between
qualities generally, and essential qualities of the
person.
Mistake as to essential qualities of the person in
Sanhuri’s opinion will invalidates the marriage
contract.
Mistake As To Person
2) Unilateral Contract of Gift.
The donee constitute a substantive aspect
of the contract.
A mistake as to his person will give the
donor the right to withdraw or demand the
return of his gift.
Mistake As To Person3) Unilateral Contract of Bequest
The legatee is regarded as a cause of the
contract.
Al-Kasani states that among the important
condition of a contract is a consent (Rida) of the
testator because it is connected with the
property.
Therefore, a bequest made in jest or by
compulsion or mistake is invalid.
Mistake As To Person4) Contract of Pre-emption and Agency.
In the contract of agency, Mistake pertains not so much
to the identity of the person as to his substantive
qualities.
For example, a minor purporting to be an agent lacks
capacity so to act.
If the third party dealing with the agent believes the
latter has proper capacity to contract, this is a mistake in
the substantial quality of the agent, that is his capacity to
the contracts.
Mistake As To PersonThus the third party who deals unwittingly
with such an agent may avoid the contract
on the ground of Mistake.
Abu Yusuf states that if the buyer is aware
of the status of the agent minor, he is not
allowed to avoid, whereas if he is mistaken
wittingly, he may be given the option to
annul or perform.
MISTAKE AS TO LAW
Mistake As To LawGeneral principle of the civil law that
Mistake as to Law, like a mistake as to fact,
may vitiate the consent of the contracting
party.
Bellafonds states that the Shariah, as
formulated by the classical jurist, rarely
distinguishes between the concept of
Mistake as to Law and that of ignorance of
the law.
Mistake As To LawModern exposes of the principle of
contract, there is a distinction made
between Mistake and ignorance of the law.
The general maxim that “ignorance of the
law is no excuse” with regard to Mistake is
not always applicable is Islamic law.
Mistake As To LawCompendiums on Usul al-Fiqh, the principle is that
ignorance of the law is a valid excuse as long as it is
not accompanied by negligence (Taqsir).
Whoever is ignorant of the law and is negligent, is
held answerable to this ignorance and will not be
considered a Mistake in Law.
Whoever is ignorance of the law and is not negligent
in that ignorance is excused his ignorance and it may
be regarded as a Mistake as to Law.
Mistake As To Law The primary assumption of Islamic Fiqh is that Mistake as to law
is not excusable except if the special surrounding condition can
be established to rebut the charge of the assumed negligence
regarding the ignorance as to the law.
The Hanafi author, al-Kasani states, in the sale of moveable
property, if a neighbour asks for a right of pre-emption to that
property, and the buyer, thinking that his neighbour may legally
have per-emption over it, submits that right of pre-emption to
him, when later one of the two want to revoke the contract
without the other’s consent, he will not able to because when the
submission is made, it became a contract between them.
Mistake As To LawHere, the buyer mistakenly thinks that pre-
emption may be allowed on moveable objects,
which is mistake in law in Hanafi school.
This ignorance cannot be considered excusable
because it encompasses negligence on the buyer’s
behalf.
Therefore, he is not allowed to revoke the sale due
to ignorance, and the contract is binding upon
him.
Sanhuri contrast two situations:
1) a seller sells a sapphire but calls it a stone without knowing that it is a sapphire. This will not considered as mistake, as the seller does not reveal his intention to the buyer, indeed it is has no different from his implied intention to sell the stone due to his ignorance of its true essence.
2) the purchaser request a piece of Mervian cloth valued at one Dinar, the seller produces a piece of cloth worth four Dinars. Here the mistake is discoverable and the seller is permitted to avoid the contract. Then result would have been the same if the seller were to produce a piece of cloth for half a Dinar
MISTAKE WITH STIPULATION OF INTENTION
Hanafi :do not distinguish between an object
of superior or inferior value to that stipulated.
Shafii : solution is diametrically opposed to
that of the Hanafi’s. Shirazi :
when the object is discovered to be superior to that stipulated, the buyer has no option to rescind the contract for mistake
Mistake with Stipulation of Interntion divides by three:
1) Manifest expression of intent2) Deduction of intent from
circumstances of the case3) Deduction of intent from the
nature of the things
Manifest Expression of Intent What is about ?
Expression of intents formula are al- Tasmiya (nominator) and al- Inshara
(indication)
Explanation?
Nomination represents the real will of the contracting party
Indication represents the apparent will A
Example?
sales by catalogue
Sanhuri
If the nomination of an article differs from an indication given and thereby the true
intention or will is different from the apparent intention
Maliki
Sale by catalogue and arrive at the same solution. If the delivered article fails to fit
its catalogue description, the buyer has an option to rescind the contract for
misdescription
Hanafi
No differences in the use to which the object is put, the contract is formed on the
basis of the indicated object even if the buyers has given a description of a desired
be in an option of description
Deduction of Intent from Circumstances of the case
Explanation?
• Not necessary for manifestation of a contracting party’s will to be
express.
• The other party may reasonably assume to have tacitly understood
or deduced his co-contractor’s will from his accompanying
circumstances or origin and be expected to recognised a mistake
Example?
selling stone in a market for a precious jewel may reasonably
be assumed to be that category of value.
When mistake have been establish, the contractor is deemed to
have the right of option of defect (Khiyar al- Ayb), but the burden of
proof does lie with the holder of that option
Deduction of Intent from the Nature of the Things
What is about?
The option of defect
Explanation?
• Established option with an implied condition for there is an implied condition of
guarantees concerning the soundness of the object.
• Unless, contractor expressly inserts a condition of waivers against defects in the
contracts.
Example?
• Anything which appreciably diminishes the value of an object of ordinary
commerce is regarded as a defect giving rise to an option.
Al- Kasani states in this context that the will of the buyer is that the object is sound and that his will
is a valid condition of the contract. Therefore, if the object is discovered to contain a defect, this
condition of the buyer’s will is lacking and the validity of the contract is affected, giving rise to the
right of opinion
Khiyar al-Ru’ya
NON- DISCLOSURE OF THE WILL
What is about?
• General Rule in Islamic jurisprudence:
If a contractor agrees to buy an object without having
seen it, he is allowed an Option of Inspection, which gives
him a right to ratify or rescind the contract.
• In this doctrine:
A contract formed by the will of two parties cannot be
valid when the will of one of those parties has been breach
by mistake as to the intended object.
This doctrine, like the option of defect in mistake has its
foundations in the role of the will of contracting parties. A
contract formed by the will of two parties cannot be valid
when the will of one of those parties has been breached by
mistake as to the intended object
MISTAKE AS TO VALUE (GHABN AL-FAHISH)
MISTAKE AS TO VALUE (GHABN AL-FAHISH)DefinitionThe Majella : Excessive deception in the
value of goodsWhat constitute Excessive deception?Article 165 of the MajellaArticle 356Article 357
CONDITIONS ATTACHED (OPINION OF THE JURISTS)
Hanafi, Shafi’i and Hanbali school: Ghabn
must be accompanied by fraud or verbal
deceit.
Shafi’I school: must be accompanied by
flagrant misrepresentation.
I’badi school: diminution in value of the
object.
Exception to condition
Contracts relates to :-
Property of minor
A waqf donor
The treasury
The effect of Mistake as to value Ibn Al-Hamam :- Buyer has the right to
return the property to the seller
Ibn A’bidin :-
1. the sale is valid but maybe rescinded
absolutely;
2. rescission is not absolute
3. if deceit has also occurred rescission is
absolute.
The effect of Mistake as to value(cont’d)
Shafi’i school: Ghabn accompanied by
taghrir maybe rescinded at the option of
the buyer
Hanbali school: allow option to rescind on
3 grounds and must be accompanied by
taghrir
Maliki school: rescission is permissible on
3 conditions.
Application of doctrine of mistake as to value by modern statutes
The Iraqi Civil Code
The UAE Civil Code
The Kuwaiti Civil Code
The Bahrain Contract Law
The Malaysian Contracts Act
THE CONCLUSIONMISTAKE is not a question of ignorance or a wrong
decision but a doctrine which seeks to identify the
underlying cause of the error.
The error must have motivated the decision to contract to
be actionable.
where such motivation or consent has been induced by
deceit, misrepresentation or fraud the Muslim jurist
assign primary attention to the consent of the contracting
parties.
The remedies are always deduced in the light of effect of
the mistake and its cause on the consent of the
contracting parties.