ISLAMIC LAW OF TRANSACTION. QUESTION 2 CONCEPT OF MISTAKE AND ITS CATEGORIES. GROUP MEMBERS. IMPEDIMENTS TO CONSENT IN ISLAMIC CONTRACT. 4 Grounds of the impediments. Definition of Mistake (Ghalat). Concept of mistake in islamic contract.
Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.
CONCEPT OF MISTAKE AND ITS CATEGORIES
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.
“If the object is declared in kind (Jins) and the object proves to be another kind, the sale is invalid (batil)”.
In this case, the mistake as to meaning is also actionable under the option of description.
1) Marriage Contract.
2) Unilateral Contract of Gift.
3) Unilateral Contract of Bequest
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
do not distinguish between an object of superior or inferior value to that stipulated.
solution is diametrically opposed to that of the Hanafi’s.
when the object is discovered to be superior to that stipulated, the buyer has no option to rescind the contract for mistake
Expression of intents formula are al- Tasmiya (nominator) and al- Inshara (indication)
Nomination represents the real will of the contracting party
Indication represents the apparent will A
sales by catalogue
If the nomination of an article differs from an indication given and thereby the true intention or will is different from the apparent intention
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
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
selling stone in a market for a precious jewel may reasonably be assumed to be that category of value.
The option of defect
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.
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.