Al-Waadih Fee Usool ul-Fiqh by Muhammad Hussein Abdullah

The Nahi (forbiddance) of ‘Uqood (contracts) and Tasarrufaat (conduct/disposal) for Ahkaam like trade and marriage are of two types:

1 – It can represent a Nahi (forbiddance) of the ‘Ain (essence) of the contract or the ‘Ain of the Tasarruf (conduct/disposal) itself which would make it Baatil or Faasid.

It would be Baatil if the Nahi (forbiddance) returned to the (essence of the) contract itself or to one of its Arkaan. That would indicate Al-Butlaan and this is like the Nahi of the Shaari’ in respect to selling Al-Maitah (carrion). That is because the Nahi returns back to a pillar of the contract and is contracted upon that in the case where the pillars of the contract are three: Al-‘Aaqid (the one who contracts), Al-Ma’qood ‘Alaihi (the matter being contracted upon) and Seeghat ul- ‘Aqd (the contract form).

This is like the Nahi (forbiddance) of Bai’ ul-Hisaah which is when a buyer throws a pebble and whatever one it hits he buys like if he was to throw it towards a pen of sheep for example. The Shaari’ (legislator) has forbidden this type of trade in itself and as such it would be Baatil because it represents a Nahi (forbiddance) in respect to the wording (or form) of the contract (Seeghat ul-‘Aqd). The contract or transaction would be Faasid if the Nahi returned back to a Sifah (attribute) from amongst its attributes and not to a Rukn from its Arkaan. This is like marrying two sisters at the same time. That is because the ‘Asl (origin) in respect to marrying each of the two sisters is permissibility in accordance to the Shar’a however what has been forbidden is for them to be married at the same time. It would therefore be Faasid and the rectification of this Fasaad would take place by divorcing one of them.

Another example would be if a person was to loan another a sum of money and then stipulate upon him that he purchases books with it, this contract would be Faasid. The contract would be deemed to be valid whilst that condition would be Baatil and the one taking the loan would not be bound by it.

3 – If the Nahi from the Tasarruf (conduct/disposal) or the ‘Aqd was due to a matter external to them like the Nahi of conducting trade at the time of the call to the Jumu’ah prayer. This Nahi does not have an impact upon the contract or Tasarruf (conduct/disposal). It is not Baatil and not Faasid and all that results from and is built upon the Saheeh contract applies. However, the one who has done it will be sinful due to having violated the command of the Shaari’.

Similarly, the Salaah (if its Arkaan and Shuroot were fulfilled) in the usurped land is a Saheeh prayer that is counted (Mujzi’ah), relieving of the responsibility and the need for Qadaa’ to be undertaken. However, the one who undertakes it is sinful because he has undertaken a Haraam act as he has prayed in a usurped land that he has no right to and to utilise or make use of.