Subject Matter in Islamic Contract

            As for the subject matter of contract, both the item and consideration, Islamic law stresses on the following matters:

1. Lawfulness

      Lawfulness requires that the object must be lawful, that is something, which is permissible to trade. It must be legal value that is; its subject matter (mahall) and the underlying cause (sabab) must be lawful. It must not be proscribed by Islamic law, or a nuisance to public order or morality. Also inherent in the lawfulness of the object is the condition that the object must be legally owned (or authorized) by the parties to a contract.

The object of the agreement must be lawful. An agreement is unlawful, if it is:-

(i)  illegal

(ii) immoral

(iii)                         fraudulent

(iv)                        of a nature that, if permitted, it would defeat the provisions of any law

(v)causes injury to the person or property of another

(vi)                        Opposed to public policy.

2. Existence

      The issues of existence presuppose that the object of a contract must be in existence at the time of contract. Thus, it is illegal for example to sell fetus.

3. Deliverability

      Delivery indicates that the object must be capable of certain delivery. The classical jurists therefore, prohibit the sale of a camel which has fled a bird in the air or a fish in water.

4. Precise determination

      The object of a contract must be determined precisely as to its essence, its quantity and its value.

e.       Legal obligations

 The parties must intend to create a legal obligation. The agreement sought to be enforced should contemplate legal relations between the parties to it.

f.       Free consent

The contracting parties must give their consent freely. 'Consent' means that the parties must agree about the subject matter of the agreement in the same sense and at the same time. Consent is said to be free if it is not induced by coercion, undue influence, fraud, misrepresentation or mistake. The absence of free consent would affect the legal enforceability of a contract.

g.      Not expressly declared void

An agreement expressly declared to be void under the Contract Act or under any other law, is not enforceable and is, thus, not a contract. The Contract Act declares void certain types of agreements such as those in restraint of marriage, or trade, or legal proceedings as well as wagering agreements.

h.      Certainty and possibility of performance

The terms of a contract must not be vague or uncertain. If an agreement is vague and its meaning cannot be ascertained, it cannot be enforced. Also, the terms of a contract must be such as are capable of performance. An agreement to do an impossible act is void and is not enforceable by law.

i.        Legal formalities

Generally, a contract may be oral or in writing. However, certain contracts are required to be in writing and may even require registration. Therefore, where law requires an agreement to be put in writing or be registered, the same must be complied with. For instance, the Indian Trusts Act requires the creation of a trust to be reduced to writing.