Chapter 4 subject matter

Presentation by Shafiq butt and Muhammad Umair KaramatThe university of Punjab

Chapter #4:Subject Matter© 2014 M.U.K presents. All rights reserved.

SUBJECT MATTER

Subject Matter:It consists of different things: commodity,

performance, consideration and object of contract.

Explanation it means subject matter may be a commodity,

performance or service.Consideration: means price is also a part of subject

matter.Object: means underlying cause and purpose of

contract must be lawful.

© 2014 M.U.K presents. All rights reserved.

Subject matter

Commodity Performance Consideration Object


1) Legality of subject matter2) Existence Of Subject Matter3) Certainty Of delivery4) Precise Determination of Subject

Matter5) Legality of Object and Underlying

cause

5 CONDITIONS OF SUBJECT MATTER FOR A VALID CONTRACT

© 2014 M.U.K presents. All rights reserved.Presentation by Shafiq butt and Muhammad Umair Karamat

The university of Punjab

1# LEGALITY OF SUBJECT MATTER

Subject matter must be permissible(jaaiz)in Islam. Examples of forbidden things e.g. wine, pork,

intoxication, animal naturally died, All animals that have been slaughtered without the name of Allah. These things are not valid subject matter.

Subject matter should not be a public property e.g. mosque, roads.

There are four points about legality of subject matter


1# LEGALITY OF SUBJECT MATTER

Subject matter must be owned by some one: e.g. Public property and fish in the sea can not

be a subject matter because these are not owned by any individual.

Legal obligation: there should not be any right attached to subject matter.

e.g. disputed property. Pledged property, mortgaged property is not a valid subject matter because the rights of a third person(creditor etc.) is attached to that property.


Permissible

Not be Public property e.g.

mosque

Ownershipe.g. fish in

water

Legality of subject matter

e.g. mortgaged property


2# EXISTENCE OF SUBJECT MATTER

The existence of subject matter is also compulsory in order to form a valid contract:The subject matter should be in actual

existence or seller can acquire and get it in future

without any uncertainty and risk.



2# EXISTENCE OF SUBJECT MATTER

Contracting over a non-existent subject matter is not allowed when:1) There is uncertainty regarding to its actual existence.2) Or There is any uncertainty regarding to its

acquisition in future. Explanation:

subject matter does not exist now e.g. sale of fruits on tree or Sale of standing crops on future date is disallowed because these things do not exist now and will ripe in future.

Subject matter did not come in your acquisition or possession till now e.g. Sale of fish in sea or Birds in the air. Subject matter itself exists but there is uncertainty that it will come in to your possession or not.


2#EXISTENCE OF SUBJECT MATTER

Examples

Fruits on treee.g. spring

sale of mangoes

Sale of standing

crops

Sale of fish in sea

Birds in the air

Uncertainty

In Actual existence

In Acquisiti

on in future


COMMUTATIVE CONTRACTS VS. GRATUITOUS CONTRACTS Commutative contracts:

contracts where both the contracting parties give and receive something e.g. sale, lease: The seller gives the thing sold, and receives the price.

Gratuitous contracts:It is a contract in which one party gives something or

promises to do something without receiving anything in exchange e.g. Gift, bequests(al-wasiyyah)

The condition of existence of subject matter apply to commutative contracts and do not apply to gratuitous contracts because there is no consideration in these contracts.


HOLY PROPHET PEACE BE UPON HIM SAYS :

”SELL NOT WHAT IS NOT WITH YOU”

This saying of the Holy Prophet peace be upon him is interpreted by Muslim jurists in three different ways:


FIRST OPINION: OWNERSHIP

According to many prominent “Ulama” it means: “sell not what you do not own at the time of sale” If the seller does not own the subject matter at the time of selling, the contract is not valid even though the seller will own it after selling.

The only exception to this condition is salam where ownership is not prerequisite.



SECOND OPINION: FUNGIBLE AND SPECIFIED GOODS

The jurists and Ulama of hadith have generally view that it means: "not sell specified goods if you do not own them at the time of sale". hadeeth is applied to only specified goods and do not apply to fungible goods. In fungible goods there in not much difference between these

goods and seller can replace one piece with other easily e.g. wheat, rice, tomato's etc.

In specified goods there is much difference between these goods and every single piece has its own specific qualities and seller can not replace one piece with other piece easily e.g. jewelry, animals etc.

According to this opinion:Salam is allowed as normal case and it will not be an exception.


3RD OPINION: LEGAL EFFECTIVE CONTROL OR CERTAINTY OF DELIVERY

Some ulama says it means: not sell what is not present and seller is unable to deliver.

The emphasis of the Hadith is on the ability of the seller to deliver the subject matter at the time of sale.

Because it is quite possible that the seller owns the object and yet it is unable to deliver e.g. stolen car, stray animal, disputed property.

So the emphasis of the saying is not on ownership, nor possession rather it is on the seller’s legal effective control over subject matter and ability to deliver.

NOTE: Certainty of delivery is an independent condition as it will discussed later.


3 # CERTAINTY OF DELIVERY The ability to deliver the

subject-matter at the time of conclusion of contract.

Explanation:It is related to delivery of subject

matter, May be your subject matter exists and it was in your possession before but now you are not able to deliver subject matter to your buyer.

Examples

Stolen car

Stray animalfish in sea

Birds in the

air© 2014 M.U.K presents. All rights reserved.

4 # PRECISE DETERMINATION OF SUBJECT MATTER

First method: Physical

Examination in the meeting(majlis) of contract.

Second method: Sale by description(you

describe characteristics of subject matter which make it clear and eliminate uncertainty)

Majority of jurists allow it in fungible goods.

Imam Safi do not allow it.

The subject matter should be precisely determined and described e.g. quantity, quality, price etc.it means that every detail about subject matter must be crystal clear.


5 # LEGALITY OF OBJECT AND UNDERLYING CAUSE

The underlying and motivating cause for a contract should be according to requirements of sharia.

Contract is disallowed if:Motivating cause in unlawful.And Contracting parties know this cause.

Example:Selling a weapon to a person who will kill an innocent

person with weapon, this contract is disallowed when seller know this fact.

Selling grapes to a person who make wine with it. this contract is disallowed when seller know this fact.


Economy & Finance

Chapter 4 subject matter