According to the scholars of Usul al-fiqh, a pillar (rukn) is an essential part of the substance and essence of the matter to which it is related (Wahbah al-Zuhaili, 1995). As such, its absence means the matter will not exist, and its presence means that the matter will be present (Naim, 2010). For the purpose of derivation of hukm, some scholars differentiate between pillar and condition. In this case, condition (sharat) is referring to the existence of something (example prayer) is depending on it (example wudhu’), however it (wudhu’) is not a part of the existence (prayer) (Wahbah al-Zuhaili, 1995).
According to Naim (2010), jurists have used a variety of expressions in discussing the pillars of contracts. Some of them differentiate between pillars and conditions in a contract which also practiced by the majority of jurists from the Shafii School. On the other hand, there are also other jurists who do not use the word ‘pillar’ (rukn), but they use the word ‘condition’ (sharat) to also include the pillars of a contract. Therefore, when a jurist uses both terms, i.e. pillar and condition, in his discussion, it means that he considers each to have a distinct and separate meaning. But if a jurist only uses the term sharat (condition) without mentioning ‘pillar’, then sharat encompasses ‘pillar’ in his discourse (Naim, 2010).
There are also many definitions given by scholars with regard to trading or sales contract. According to Wahbah al-Zuhaili (1995), literally it carries the meaning of exchanging of goods. He further asserted that Mazhab Hanafi defined trading as exchanging of goods in certain ways that are beneficial. By referring to Imam Nawawi,
Majority of the scholars agreed that there are there are 3 namely the offer and acceptance, the contracting parties (the seller and buyer) and the subject matter.
The first Pillar: Offer and Acceptance (Sighah of the contract)
Islam recognizes the ownership of properties and includes it as a part of the objectives of the shariah of protecting soul, mind, property, modesty and religion. Therefore the transfer of ownership through trading should be performed by mutual consent of both parties involved. The contract is void without the consent. This was written in the Holy Quran as mentioned by Allah s.w.t. in Surah Al-Nisa’:
“You who believe, do not wrongfully consume one another’s wealth; rather, trade by mutual consent. And do not kill one another, for Allah is merciful to you” (Al-Nisa’:29).
Muslim jurists have differed in defining an offer and an acceptance. The disagreements are between the thought of School of Hanafi and the majority of the jurists. The Hanafi’s school of thought have defined offer as the establishment of specific conduct implying the consent which comes from one of the to contracting parties or the person who acts on his behalf whether it is used by the person who wants to transfer ownership pr the person who wants to take possession.
For other jurists, they referred an offer to the person who wants to transfer the ownership whether it comes first or not and the acceptance is coming from the person who wants to take the possession whether it comes second or first. In other words, the non-Hanafi jurists have defines an offer as whatever implies the willingness of transferring ownership by explicit, indication while acceptance is whatever implies the willingness of taking possession by explicit indication. Although there are different definitions given by the scholars, it does not change any rules of the contract as it acts as legal binding agreement. There are other conditions of the sighah which can be summarized as 3 Cs namely clarity, conformity, and continuity.
a. Clarity
The offer and acceptance should be expressed in a clear and understandable means especially by words. The most important in the sighah is it should be clearly expressed that both parties understand what other party expresses. As long as the expression is clear and understandable by parties involved, the contract is consider concluded. It is not necessary however that such indication should be in specific words or phrases because the law has given consideration to the meanings and intentions in contracts not to the words and phrases.
b. Conformity
Conformity is referring to the respond of acceptance in respect to what the offer asked regarding the subject matter and consideration whether such conformity is expressed or implied. In other words, an acceptance must be executed in accordance with the conditions specified in the offer. It must be absolute and unconditional.
c. Continuity
The offer and acceptance should be made in the same session of the contract. Even though jurists differ as to whether the acceptance must be done immediately after the offer is made or not, all jurists are almost unanimous on the point that a contract must be completed by offer and acceptance in the same meeting. This can be done only if the offer and the acceptance take place in one session when the two contacting parties are present or in a session which the absent party knew the offer. The communication is materialized when each of the contracting parties knows whatever is issued by other who has made the offer and when there is no indication of reluctance from any of the contracting parties. The opinion of Maliki School of thought allowed that the party(s) to extend the period for acceptance if the parties to the contract to that in their negotiation. The opinion of Maliki seems to be more appropriate especially in the modern transactions.
INCEIF (2009) also referred to the Federal Court oF Pakistan comments when discussing on continuity. The comment was:
“ A narrow intrepretation of Majlis would mean that the offer of the promisor should be accepted without any dleay and without giving the promisee any ooprtunity to think or consult someone iin order to make up his mind. This may be practicable in small tansations but will fail in bigger transactions, which may require considerable inquiry. Thus, if an offer is made for sale of factory, it ill require inquiry into the titlle, power to sell, value of machenery, value of a factory, its liabilities, if any, profitability, etc. If the majlis is itepreted to mean single session, no one will consider purchasing property.”
The Second Pillar: Contracting Parties
The contracting parties are one of the important elements of a contract which consists of buyer and seller that are one who transfer ownership and one who take the possession. Islamic laws presume that people have capability to decide on their own by evaluating, negotiating and trading on that capacity. However, Islam also recognizes people without such capabilities and handicaps in nature therefore it provides appropriate rules in respect of the protection of such group of people.
The parties who conclude the contact must possess full legal capacity. Full legal capacity can also mean that the person who enters into a contract must be sane, mature and have reached the age of puberty. The scholars also agreed that without any dissenting view, that an insane person and a child unable to meaningfully discriminate between benefit and harm are prohibited from entering into any transaction by themselves. They may also conclude the contract by appointing someone as his agent to perform the contract on his behalf. For a minor who not attained full legal capacity, a guardian may conclude the contract on his behalf.
The Third Pillar: Subject Matter
In order to ensure the validity of the contract, subject matter must also fulfill certain conditions as also to protect the contracting parties. The term subject matter is applied to anything that is exchanged in the contract. It includes both the commodity and the consideration as contractual consideration of one party is the consideration for contractual obligation of another party. Therefore commodity and consideration should be dependable and related to subject matter.
Furthermore, the conditions stipulated by Islam are aimed to fulfill some characteristics of Islamic Teachings relating to eliminating of any disputation among its followers. Allah s.w.t. said in Quran:
“And obey Allah and His Messenger, and fall into no disputes lest you lose heart and your power depart; and be patient for Allah is with those patiently preserve.” (Al-Anfal 8:46)
In other verse, Allah s.w.t. said:
“O you who believe! Eat not up your property among yourselves in vanities, but let there be among you trade by mutual goodwill…” (Al-Nisa’ 4:29)
These two verses are among the verses that inspire the scholars to regulate and formulate the guidelines pertaining to the subject matters’ conditions. Among the conditions are:
a. Existence
The shariah stipulates that the subject matter must exist or can exist in the future for a contract otherwise the contract will be void. The prophet s.a.w. has prohibited a person from selling that which he did not own, and also the sale of the stepping of a camel stepping. The reason behind the prohibition is that the subject matter was not in the existence therefore invite gharar (uncertainty) to the transaction.
According to Haqqi (2009), this opinion was supported by Hanafi’s and Shafii’s school of thought. However Maliki jurists have differentiated between the two in such existence considering the existence of subject matter. For compensational contracts, they stipulate such existence but not in gratuitous contracts such as gift and endowments.
Haqqi (2009) added that Hanbalis have not considered the existence of the subject matter as a condition of a contract. They have considered the uncertainty of the subject matter as the main reason for the prohibition of such contract as prohibited by the Prophet in the earlier case. Hence, the existence of the subject matter whether at the point of sales or in the future is acceptable as a valid contract, however the element of uncertainty should be avoided to avoid from the void contract.
b. Deliverable
The subject matter after its existence should be deliverable at the time of the conclusion of the contract. Muslims jurists have the same views with regard to this matter. Consequently, it is not allowed to sell or hire straying animals, birds in the air o fish in the water as they could not be delivered.
c. Specific and Known to the contracting parties
The jurists also stipulated that the subject matter must be known by both parties. The level of knowledge must be sufficient to prevent any argument between them afterward. This condition is to avoid from subject matter that is uncertain and unknown.
d. Legal
The contracted item must be something which is recognized by the Islamic law as a legitimate asset that can be possessed. The contract is considered void if the subject matter is not legitimate. The contract is also void if the subject matter is something which is for the publics, such as fish in a lake or river; or birds in the sky; or grass in a meadow, unless someone has used some effort to collect and separate it in one place (Naim, 2010).
e. Purity
Allah mentioned in the Holy Quran:
“Allah loves those who turn to Him constantly and He loves those who keep themselves pure and clean.” (Al-Baqarah 2:222)
Therefore, it is very important that the business transactions only involve the clean and pure things. This has also supported by the opinion of majority of the scholars. Muslims, therefore, are disallowed to trade wine, blood, corpse and pork as well involve in gambling as they are prohibited in Islam.
