PRESENTED BY: SITI ANNUUR BINTI ALI NAJMIYAH BINTI MUHAMAD ZANARIAH BINTI ABU ZARIN 1

QUESTION 7 One of the pre conditions imposed in contract is intention. a)Discuss the meaning of intention b)Identify the elements that formed a contract by taking Zahir and Batin intention into account 2

 There are five major legal maxims in Islam. One of them is matters are determined according intention.  Under this kind of legal maxim, all the behaviors and attitudes of everyone are depends on their intentions.  This is a comprehensive maxim that has implications that Islamic scholars have discussed in various areas, including devotional matters, commercial transactions and crimes. 3

1) Al Quran  Al-’Imran :145 And no human being can die save by God's leave, at a term pre-ordained. And if one desires the rewards of this world, We shall grant him thereof; and if one desires the rewards of the life to come, We shall grant him thereof; and We shall requite those who are grateful to Us. 4

2)As-sunnah  On the authority of Abu Hafs, Umar Ibn al- Khattab, who said: ‘I heard the Messenger of Allah: “The actions are Innama (only, certainty) tied to the intentions and every person will earn that which he intended. Therefore, he whose migration was for Allah and His Messenger s.a.w then his migration will be for Allah and His Messenger; and he whose migration was to achieve some worldly gain or to take a woman in marriage, then his migration will be for that for which he migrated.” Sahih Al-Bukhari and Muslim 5

 Linguistically intention means An-Niyyah.  Therefore one’s Niyyah is to do something  To describe the direction or the place that one intends to go to, or the meaning that one intends to deliver.  To describe the heart’s intending an action or planning to do an action. 6

 In Islamic terminology, there is NO special meaning for the word “An-Niyyah”.  Giving a special meaning to the word An- Niyyah in the Islamic Terminology has no proof.  An-Niyyah is one’s intention of the heart to perform an action.  In other word, the meaning of intention, therefore, is the will directed towards the action. 7

 Any contracts refers to its meaning and purpose.  The meaning of the rule is that the assumption lies in the akad, its meaning and purpose and not to forms and words.  That means, in any valid contract in which there is a distinction between the intention and purpose of the covenant that is seen through words or what is remarked upon in the contract. 8

 Ibn Rusyd explains in his al-Muqaddimat wa al-Mumhidat that the rule is recognized with the rules: Where the laws are for the meanings.  In other word, something in the contract takes approximate purposes and meanings of words in the contract and its goal and not forms of the word.  Therefore the words in a contract must use a certain word or intention to become legitimate 9

 An example, if there are two people who do a contract with word to give a good that has been provided with payment and has received a good before the price is fixed.  The contract is a sale and purchase contract. This is because the final contract to buy or sell was intended by them and not as a meaningless verbal contract. 10

 To produce a contract, there must be an intention to contract on both sides.  This intention is composed of two types of intention which are zahir intention and batin intention.  Batin intention is a matter that is hidden in the hearts and can not be seen by naked eye.  While zahir intention comes in form of words. 11

 The relationship between these two intentions is, zahir intention explain the existence of batin intention in the hearts  With the two intentions, the contract is considered valid and give effect to all parties involved  Therefore, all words spoken by a person who has no intention to deed, as spoken by a madman, or one who was asleep, did not give any effect and there is no contract that exist 12

 However, sometimes zahir intention cannot give a good description or explanation of batin intention.  In such situation, evidence must be based on several different circumstances which formed a contract, taking zahir and batin intention into account. 13

 1 st element Act never planned at all. It can be illustrated in two forms: 1)A contract made by an insane/sleep person 2)It also happen if the act not in accordance with the contract, such as A is unaware with what she has mentioned in the contract  Under this circumstances, the contract is considered as null and void and no effects towards contracting parties  However, Muslim jurists are in dispute in; 14

1)Action done by an intoxicated person Jumhur -Valid contract -Such contract has effect to the person -Punishment toward him for drinking voluntarily Second view -Distinguish between cause of intoxication -If willingness: follow the jumhur view -If force/medication: not valid / not enforceable Third view -Not binding at all 15

2)Action done by intention Hanafi -The action is already constitute a contract - Act is done by his own choice -Even though it is a mistake, it can be remembered at particular time Other view -not binding -contracting parties is not liable -not on his own choice 16

 Surah al-Ahzab 33:5 And you would not be at fault for any mistake you make, in this respect, except, in, what your hearts may premeditate, after the prohibition [has been issued]. And God is Forgiving, of whatever you said before the prohibition [was issued], Merciful, to you in this respect. 17

 On the authority of Ibn Abbas that the messenger of Allah said: "Allah has pardoned for me my people for [their] mistakes and [their] forgetfulness and for what they have done under duress.” 18

 2 nd element Contract was done voluntarily by his choice and he himself understand the action taken but he is not willing and does not consent to the contract either it is done by force or colloqium language kiddingly or to show off 1)Action by kidding Hanbali and majority of Maliki -They considered this type of contract as not valid -Null and void except in 5 types of contract 19

-in which these contract are binding even it is made kiddingly. -5 serious matters cannot be taken kiddingly, once done it is binding -marriage, divorce,ruju’,taking oath and taking leave of slave Shafi’I -binding contract -it is done on voluntarily basis -cannot use kidding as an excuse to escape from the liability in the contract 20

2)Action done by force Hanafi -Valid -but fasid (voidable)  However, in 5 serious matters, the contract still enforceable even by force. Others view -considered as null and void -not binding -not effective 21

 3 rd element Unusual way of contract or abnormal performance way of contract Eg: A tends to sell the goods but pronounced as hibah. Hanafi -valid (sahih) contract based on intention of contracting parties Hanbali and Shafi’I -valid -except for the marriage contract -where the used must be precise 22

 4 th element Act of contract is straightforward but has a hidden agenda Eg: Selling grapes for making liquor wine : Nikah muhallil or cina buta Shafi’i -this type of contract is valid -because we only judge from the appearance, what we can see and not inside it Others -null and void -in Islamic Law intention is very important 23

According to this opinion; - contract made with bad intention is considered invalid although the contract is made with right way and implementation. - Because in ascertaining the validity of a contract the implied intention, either favourable or not must be taken into account 24

 Al-Nisa 4:12 'Bequests which cause injury' are those that entail depriving deserving kin of their legitimate rights. Similarly, the debt which causes injury is the fake debt which one falsely admits to owing, and any other device to which one resorts merely in order to deprive the rightful heirs of their shares in inheritance. 25

 Schools of fiqh differed on the issue of determining the basis of contract validity. Some emphasizes on its legal form while others stress on its substance and the intention of contracting parties.  Shafi’i found it is impractical to determine the validity of contracts by means of intention, as it is difficult and sometimes impossible to identify the intention of the contractors. 26

 While Malikis and Hambalis emphasize that validity of a contract must be based on the real intention or the substance of the contract.  Apparently, the scholars of fiqh only differ in terms of basing the validity of a contract. However they never differed on the issue of basing the permissibility of a contact on its substance or the contractors’ niyyah. 27