Essential Elements and Necessary

Conditions in Contract

To make a permissible contract

valid, it must have essential
elements and each essential
element must meet the
necessary conditions.

1- Contract of Sale
The essential elements and the necessary
conditions in a contract of sale are:
1. Contract : Offer & Acceptance
(i) In definite and decisive language and absolute.
(The Majelle - Majallah Al-Ahkam Al-Adliyah complete code of Islamic Civil Law, provides as
follows:
Art. 169: For the offer and acceptance the past
tense is generally used.
Art. 170: By aourist tense like Alirim and
Satarim if the present tense is meant, the sale is
concluded, and if the future is meant, the sale is
not completed.

(..continued)

which
in the
is

Art. 171: A sale is not concluded by words in the

future tense, such as I will take,I will sell
mean merely a promise.
Art. 172: A sale is also not concluded by words
imperative tense, such as sell,buy. But a sale
concluded by an imperative which of necessity
indicates the present.)

(ii) The acceptance must agree with the offer.

(Mjl. Art. 177: If one of the contracting parties
make
an offer for something in any manner
whatsoever, the
other party must make the
acceptance of it, so as
exactly to correspond with the
offer. He has no right
to separate either the price or
the subject matter of
the sale.)

(..continued)

(iii) The contract must be made at the one and the same
meeting.
(Mjl. Art. 183: After the offer and before the
acceptance, if one of the two parties gives an
indication of dissent, whether by word or act, the
offer becomes void, and there is no longer room for
an acceptance.
Art. 185: On new offer being made before
acceptance, the first offer becomes void, and
consideration is paid to the second offer.)

2. The Thing Sold

(i) It must exist
(Mjl. Art. 177: The existence of the thing
sold is
necessary.)
being
delivery
and

(ii)

The thing sold must be capable of

delivered.
(Mjl. Art. 198: It is necessary that the
of the thing sold be possible.)
(iii)

The thing sold must be of value,

(..continued)
(iv) It must be of pure substance.
(Mjl.Art. 199:It is necessary that the thing sold
should be mal mutaqawwim.
Art. 126: Mal is a thing which naturally is
desired
by man, and can be stored for times
of necessity.
Art. 127: Mal mutaqawwim is a
thing the benefit of
which is permissible by law to
enjoy.)
(v) The thing sold must be known.
(Mjl. Art. 200: It is necessary that the thing
sold
should be known to the buyer.
Art. 201: The thing sold becomes known by a
description of its qualities and state, which will
distinguish it from other things.)

(..continued)
(vi) The thing sold must be owned by the
seller.
(Mjl. Art. 365: In order that a sale may
be
nafiz, it is a condition that the
seller should be the owner of the property sold,
or agent, or natural
or appointed guardian of
the owner of the
property, and that there
should be no right in any
one else.)

3.

The Price

It must be known in currency and the absolute

amount.
(Mjl. Art. 237: It is necessary that the
price should be named at the time of the sale.
Art. 238: It is necessary that the
price should be
known.
Art. 239: The knowledge of the
price comes by a
statement of its description and
amount if it does not
come by seeing it when it is shown.)

4.

The Seller and 5. The Buyer

(The Two Parties to the Contract)

(i) The two parties to the contract must be capable of

taking responsibility.
(Mjl. Art. 361: In the making of the sale, there is a
condition, that the essence of the contract, should
emanate from intelligent persons, that is to say, from
reasonable persons, who possess judgement, and
that they should attach to a subject of sale, which
admits of the consequences of a sale.
Art. 957: Infants, madmen and people of unsound
mind are of themselves prohibited from dealing with
their property.)

(ii)

The two parties to the contract must not be prohibited

from dealing with their property, i.e. they must not be
bankrupts and prodigals (safih).
(Mjl. Art. 958: A person who is prodigal can be
prohibited by the judge.
Art. 959: A debtor also, on the application of his
creditors, can be prohibited from dealing with his
property by the judge.)
(iii) There is no coercion or compulsion exerted on
either of the two parties to the contract.
(Mjl. Art. 949: Ikrah is of two sorts. The first sort
is Ikrah mulgi. It leads to destruction of life in loss
of a limb or one of them. It is the compulsion, which
is by a hard blow.

Essential Elements and Necessary

Conditions in Contract
(..continued)
The second sort is Ikrah ghair mulgi. This causes
only grief and pain. It is compulsion which is by things
like a blow or imprisonment.
Art. 1006: When they (transactions) take place in
consequence of compulsion which is taken into
consideration, an exchange of property, and a
purchase, and a letting, and a conveyance, and a
compromise about property, and an admission, and a
postponement of a debt and causing of a right of
preemption to cease, are not held good, whether the
compulsion be mulgi or ghair mulgi. But if the
person compelled give his consent after the compulsion
has ceased, in that case they are held good.)

2 - Contract of Leasing
The essential elements are:

1. Lessor
(The necessary conditions are the
same as those for
buyer and seller
in the contract of sale.)

2. Lessee
(The necessary conditions are the
same as those for
buyer and seller.)

3.

Contract
The necessary conditions are:

(i) In definite and decisive language.

(Mjl. Art. 443 : Like sale, letting
becomes a
concluded contract
by a proposal and acceptance.
Art. 435 : Hiring like sale becomes
a concluded
contract by the past
tense, it does not become a
concluded contract by the future tense.)

(ii) Acceptance must agree with offer.

(iii) Offer and acceptance must be made at the
same
meeting.
(Art.445 : As in sales, so also in making a
contact of hire, the agreement
of the proposal
with the acceptance,
and the unity of the
meeting for making
the contract is a condition.)

4.

Asset
The necessary conditions are:

(i) Belongs to lessor.

(Art. 446 : The letter who
makes a contract of
letting
must be the absolute owner of the
thing,
or the agent of the
owner, or his natural or legal

(ii) Specified and known

(Art. 449 : The designation of
the thing given for
rent is
necessary. Therefore, if a letter be
made
of one of two shops,
without giving the choice or
designating one of them, the letting

(iii) Delivered to lessee.

(Art. 474 : In case there is
a condition for a
deferred
payment of the hire, it becomes
necessary for the lessor to
make delivery of the
thing
hired, first. The payment of the hire
is
only necessary on the

(iii) (.. continued)

Art. 582 : The delivery of
the thing hired to the
person who hires it, is the giving of
leave and
permission by
the letter, in a way that the hirer
can derive benefit from it without
hindrance.

(iii) (.. continued)

Art. 478 : If the benefit from
the thing hired
ceases to exist,
than the rent becomes no longer
payable.)
Example :
1.
The share of the hire for
the time when a bath
is

5. Benefit
It must meet these necessary
conditions:
(i)
It can be fixed in
value.
(ii)
The lessor has the
power and capability to use and
lease the asset.
(iii)
It must be

(iv)

It is known.
(Art. 451 : In a
contract of hire it is necessary to
make known the use to which the
thing hired is to
be put, in
such a way as to put a stop to
dispute.
Art. 452 : As regards

(iv)

(.. continued)
Art. 454 : When land (Arazi)
is taken on rent,
together with
the time fixed, it is necessary to
say for what business it has been
hired, and if it
is for agriculture,
to fix what will be sown, or to
make it general, saying for sowing
whatever the
hirer wishes.

6. Rental
Its necessary condition is that:
(i)
It must be known.
(Art. 450 : It is a
condition that the rent be
known.
Art. 464 : if the
consideration for the letting is
cash, it is known by fixing its

(i)

(.. continued)
Art. 465 : If the
consideration (Bedel) for the
letting is composed of merchandise
(Aruz), or
things
measured (Mekilat) on things weighed
(Meozunat) or things
numbered which are alike