Analysis of Theory of Contract As Being Subjective or Objective In Islamic Law
April 28th, 2020
By Dr. Mohammed Nawaz [al-Hasani]
Back ground of the article:The Islamic banking system is growing day by day in the market of the
world. There are many Shariah tools applied by Islamic banking to solve the
problems of their clients but some of these tools are disputed among the
classical jurists. The article is going to solve this problem by analyzing the
evidences of Muslim jurists and providing preferred opinion regarding these
disputed tools of Islamic banking.
Objective of the article: The articleis going to
elaborate the theory of contract as being subjective and objective.
Objectivistsare supporting the objective theory of contract and hold that
whatever contrarytoconsent of Almighty Allah is null and void while
subjectivists are supporting the subjective theory of contract and wherever,
the elements of contract are found the contract is considered valid and
Requirement: the articleremoves the ambiguity regarding
the consent [رضا][Rida] of contracting party and it is first element
of contract according to majority of Muslim jurist while it is only one element
of contract according to Hanfi jurists andit is [rida] and it is hidden thing,
so it is stipulated for contacting party to come with the [sigha] form and it
means offer and acceptance and issuance of form is considered consent of
contracting party whatever will be his intention behind it and the contract is
considered concluded according to form of the contract.
Method of research: It is analytical method of research
and evidences of each opinion are given accordingly and these are analyzed and
whatever evidence remained protected from objection is preferred on other
opinions of Muslim jurists.
Result of this research:This study is resulted that
subjective theory of contract is preferable on the objective theory of contract
and this theory supports the Islamic
bankingsystem and advised it to facilitates their clients by these disputed
tools of financing and expand their business in all over the world. Conclusion: The doctrine of
[SaddayDaray] blocking lawful means to unlawful ends is not common and absolute
principle but its applications are restricted with text of Quran or Hadith
otherwise it is not capable to change the permissible rule approved by text of
Shariah and declare it prohibited.