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Assignment-1:
Causes of Defective legal capacity
To: Mr. Naveed Mushtaq
9-Oct, 2023

Islamic Jurisprudence II

B.A LLB (Hon’s) Semester-IV

The University of Lahore, session 2022-27
Submitted By:
➢ Saqib ali
➢ Sher Jan
➢ Atif Shehzad
➢ Muhammad Talha
➢ Asim Shabbir
➢ Rubab Anjum

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Synopsis
1. Introduction
2. What is Legal Capacity
3. How it is defective
4. Causes of defective legal capacity
A. Natural Causes
i. Minority
ii. Insanity
iii. Idiocy
iv. Sleep and fits of fainting
v. Forgetfulness
vi. Death-illness
B. Acquired Causes
i. Intoxication
ii. Jest (Hazl)
iii. Indiscretion
iv. Coercion
v. Mistake and ignorance
5. Conclusion

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Introduction
The word Ahliya or capacity of a person means the ability or fitness to acquire rights and
exercise them and to accept duties and perform them. The meaning indicates two types of capacity.
One related to acquisition of rights (ahliyat-al-wujub) and other on performance of duties (ahliyat-
al-ada). A subject is always liable for performing duties and not for rights. The capacity of a person
can either be complete or deficient.

Complete Capacity
Complete capacity is when a person acquires, full mental capacity and ability to discriminate,
thus, that person acquire complete capacity.
For example:
Major and sane having puberty and ability to discriminate.

How it is defective?
Deficient capacity is considered when a person may not have been born yet or he may not
have reached fully mental development. It is considered where the basis of capacities are present
but an external attribute has been introduced. That doesn’t permit recognition of legal validity of
certain acts.

Causes of defective legal capacity

There are certain causes which makes a person’s legal capacity defective. These can be:
➢ Natural causes
➢ Acquired causes

A. Natural causes of defective capacity

These are causes that are beyond the control of the subject (mukallaf), and result from an act of the Lawgiver
and Creator. We shall discuss a few of these here.

1. Minority (Sighar)
It is the state or condition of a human being after birth and before puberty. The position of a
minor for his acts from the legal point of view is the same in Islamic law as in English law. The acts
of minor may be discussed under the following heads;
(i) Criminal
A minor cannot be punished for his acts which turn into offences.
(ii) Religious liability
The Ibadat are not obligatory on the minor. He is not bound to perform acts of worship.
(i) Financial transactions
A minor can enter into financial transactions, through his guardian if it is for his benefit. He is also
liable to any damage caused to another’s property, and for the maintenance of the wives and
near relatives.

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➢ Transactions by Sabi Mumayyiz

Transactions by sabi mumayyiz are rewarded in the Hereafter, and there is debate about whether
targhib (recommendation) applies to them. They are not liable for punishments, but certain financial
transactions may be valid. The Hanafi perspective on sabi mumayyiz allows more freedom than legal
systems in some countries.
Comparative Analysis
The position of sabi mumayyiz in Islamic jurisprudence can be compared to the concept of contracts
for necessaries by minors in certain legal systems, such as under sections 11 and 68 of the Pakistan
Contract Act. The Hanafi approach provides greater flexibility for minors in financial transactions
compared to many legal systems.
➢ Example:
Let’s consider a scenario where a boy who is 14 years old wishes to sell a piece of property he
inherited from his parents. According to Islamic jurisprudence, he would generally be considered a
minor, and his legal capacity to enter into such a contract would be questionable. This is because, in
most interpretations, he has not reached the age of maturity (bulugh).

2. Insanity (Junūn)
The legal capacity of an insane person except as to acts done in lucid intervals is affected in the same
way as that of an infant without discrimination. He has no liability for ibadat or punishments and all
his transactions are void.
In Islamic jurisprudence, the concept of insanity, or “junun” in Arabic, can indeed affect an
individual’s legal capacity. Insanity is regarded as a condition that impairs a person’s mental faculties
and can lead to a defective legal capacity. Here’s an explanation of how insanity can impact legal
capacity in Islamic jurisprudence, along with an example:
➢ Legal Capacity and Sanity: In Islamic law, individuals are generally presumed to have legal
capacity unless there is a clear reason to believe that they lack it. Legal capacity is essential
for various legal and contractual actions, such as entering into contracts, marriage, and
bearing witness in court.
➢ Definition of Insanity: Insanity in Islamic jurisprudence is recognized when an individual’s
mental state is significantly impaired to the extent that they cannot understand the
consequences of their actions or make rational decisions. It is not just a temporary state of
confusion or emotional distress but a severe and persistent mental disorder.
➢ Effect on Legal Capacity: An individual who is deemed insane according to Islamic
jurisprudence may be considered to lack legal capacity. This means that their actions and
decisions may not be legally binding or enforceable in the same way as those of a mentally
competent person.
Example: Let’s say there is a person suffering from a severe and persistent mental illness that impairs
their ability to understand the consequences of their actions. This individual, in an episode of insanity,
enters into a significant financial contract without comprehending the terms or implications. In

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Islamic jurisprudence, this contract may be considered void or unenforceable due to the person’s
lack of legal capacity caused by their insanity.
It’s important to note that determining insanity and its impact on legal capacity in Islamic
jurisprudence can be a complex matter. Scholars and legal authorities may need to assess the
individual’s mental state, and there can be differences of opinion among Islamic legal scholars
regarding specific cases. Additionally, Islamic jurisprudence seeks to ensure fairness and justice, so
decisions related to legal capacity are often made with careful consideration of the individual’s
condition and the principles of Islamic ethics and law.

3. Sleep and fits of fainting

In Islamic jurisprudence, legal capacity refers to a person’s ability to make sound decisions and be
held responsible for their actions under Islamic law, or Sharia. Sleep and fits of fainting are considered
important factors in assessing someone’s legal capacity in this context.
(i) Sleep: When a person is asleep, they are not conscious of their actions and cannot
make informed decisions. In Islamic law, a person who is asleep is not held accountable
for any actions or decisions made during that state. This is because they are not in control
of their faculties and cannot be considered morally responsible.
(ii) Fits of fainting: When a person experiences a fit of fainting or loses consciousness due
to a medical condition or other factors, they are not in control of themselves. In this state,
they cannot be held responsible for any actions that may occur.

These considerations are important in situations where legal matters or decisions need to be made.
➢ For example: If a person enters into a contract or does an act while they are in a state of
unconsciousness (such as during sleep or a fainting episode), that contract may not be
considered legally binding in Islamic law.

4. Forgetfulness
In Islamic jurisprudence, forgetfulness is considered a factor that can affect an individual’s legal
capacity. This recognition stems from a fundamental understanding of human fallibility and the
potential for memory lapses. When a person experiences forgetfulness, their ability to make
informed decisions and exercise sound judgment may be compromised. As a result, Islamic law takes
into account this temporary impairment of mental faculties when assessing legal capacity.

5. death illnesses
Natural causes of death illnesses in the context of defective legal capacity refer to medical conditions
that lead to an individual’s death due to natural disease processes. These illnesses can impact legal
capacity by diminishing the person’s understanding, decision-making abilities, and consent capacity.
As these illnesses progress, cognitive decline may occur, affecting the comprehension of complex
legal matters and consent for medical treatments. Vulnerability to exploitation may increase as the
disease advances, potentially leading to legal decisions that don’t align with the individual’s best
interests. Advance care planning may be affected, as the illness can hinder updates to medical
preferences. Legal systems have protective mechanisms to assess legal capacity in such cases,

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ensuring the individual’s rights are upheld. The impact varies based on the illness, its stage, and
unique circumstances, necessitating involvement from legal professionals, healthcare providers, and
family members to safeguard legal rights and well-being.

B. Aquired Causes:

Acquired causes in defective legal capacity refer to external factors or conditions acquired during an
individual’s lifetime, such as mental health disorders, substance abuse, or cognitive impairment due
to illness or injury. These factors can diminish the person’s ability to understand complex legal
matters, make informed decisions, or provide voluntary consent. They are distinct from innate or
congenital factors and can influence an individual’s legal competence, potentially rendering them
unable to engage in legal agreements or decisions effectively. Legal systems often have mechanisms
to address and protect the interests of individuals with compromised legal capacity due to acquired
causes.

1. Intoxication:
Intoxication, within the context of defective legal capacity, refers to a state in which an
individual’s cognitive and decision-making abilities are significantly impaired due to the
consumption of substances like alcohol, drugs, or other intoxicants. When intoxicated, a person’s
capacity to understand complex legal matters, provide informed consent, and make rational
decisions is compromised. This impairment can render any legal agreements or decisions they
make during intoxication questionable in terms of their validity. Legal systems often recognize
this state and may have criteria for assessing the impact of intoxication on a person’s legal
capacity, particularly in cases where consent or contractual agreements are involved.

2. Hazal (jest)
When a person uses words without intending to convey either their primary or their secondary
meanings, that is their denotations or their connotations, he is said to speak in jest [hazl]. Such
a person may for instance use words employed for the contract of marriage, but do not intend
the hukm [effect] of such a contract. Speaking in jest has no effect on the legal capacity. Contracts
need consent and willingness to give legal effects. Speaking in jest does not give consent in reality.
Different opinions by Jurists on the legality of jest. For instance according to hanafis transactions
happening in jest are invalid, except transactions like marriage, divorce and freeing slaves. This is
based on the tradition that says , “Three things indeed seriously are taken seriously, and if
intended in jest are also taken seriously: marriage,divorce and the freeing of a slave.” Some jurists
disagree with this exemption and consider everything ineffective which is done in jest. On the
other hand The Shafi’s maintain that statements made in just are to be considered valid, all times,
they give the reasoning that the person gives Sigah (form) and must therefore be responsible for
his words and bear the results.

3. Indiscretions
This kind of acquired cause defects the transactions, that is, transactions undertaken carelessly
and in a manner that a vigilant person is likely to avoid. The person is not liable for acquisition
nor for execution. The effects of indiscretion (safah) is that a person, who has attained puberty,

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is subject to interdiction (hair) till such he mends his ways. Majority accept this view. On the
grounds of necessity of persevering his wealth because preservation of wealth is acknowledged
by law. However, Hanafi has an opinion that interdiction can last only till the age of twenty five,
after which the property is handed over to that individual, because at this age the individual is to
be considered over puberty.

4. Coercion and Duress in Legal Capacity

Coercion and duress are two factors that can lead to defective legal capacity in certain situations.
Here’s a brief explanation of each:
(i) Coercion: Coercion involves the use of force or threats to compel someone to do
something against their will. In the context of legal capacity, if an individual is forced or
threatened into signing a contract or making a legal decision, their consent may not be
genuine, and their capacity to make a free and informed choice is compromised.
(ii) Duress: Duress refers to a situation where a person is subjected to intense pressure or
intimidation that leaves them with no reasonable choice but to agree to a particular action
or contract. When someone acts under duress, their capacity to make voluntary decisions
can be undermined, and the resulting agreement may be considered void or voidable in a
court of law.
Both coercion and duress can be considered as factors that impair an individual’s legal capacity,
potentially rendering contracts or agreements they enter into as unenforceable or subject to legal
challenges. However, the specific legal standards and remedies for these situations can vary
depending on jurisdiction and the circumstances of the case. It’s essential to consult with legal
professionals for guidance in such matters.

5. Mistake and ignorance:

Mistake and ignorance are additional factors that can lead to defective legal capacity in certain
situations. Here’s an explanation of each:
(i) Mistake: A mistake occurs when one or more parties involved in a legal transaction are
not aware of certain critical facts or have a misunderstanding about those facts. This
misunderstanding can lead to an agreement that does not truly reflect the intentions of
the parties involved. Depending on the jurisdiction and the nature of the mistake, it can
render a contract void or voidable.
(ii) Ignorance: Ignorance refers to a lack of knowledge or awareness about specific legal or
factual matters relevant to a legal transaction. If one party is ignorant of important
information that should have been disclosed or known, it can result in an agreement being
challenged on the grounds of defective legal capacity.
Both mistake and ignorance can impact the validity of contracts or legal agreements, and their
consequences can vary depending on the specific circumstances and legal rules in place. In some
cases, contracts affected by these factors may be voided or rescinded, while in others, they may be
modified or enforced with limitations. It’s essential to consult with legal professionals to understand
the implications of mistake and ignorance in a particular legal context.

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