Analysis of Theory of Contract As Being Subjective or Objective In Islamic Law

By Dr. Mohammed Nawaz [al-Hasani]

ABSTRACT

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 enforceable.

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.