Obstacles to Capacity

Obstacles to Capacity

1. 1. Insanity

   • One’s mental capability is affected
     • Affects his ability to make a rational decision
   • All contracts performed by an insane person are invalid
   • A transaction made by a person who is not continuously insane in his state of sanity isconsidered asvalid.

2. 2. Idiocy

   • Inconsistent in his decisions and behaviours, from time to time.
   • A child who could distinguish between good and bad --> Sabi al-Mumaiyz
   • May perform contracts in his interest without guardian's permission
   • Could not enter into harmful contracts
   • May enter into contracts that fall between the two extremes with guardian's permission

3. 3. Unconciousness

   • Disease of mind or heart, may weaken or interrupt a person’s power to think
   • Can be compared with sleeping, but sleeping is a natural state.
   • Contracts performed are not valid

4. 4. Sleeping

   • One's mind becomes in its lowest level of activity
   • Not conscious of what is happening around him
   • Contracts performed are not valid

5. 5. Intoxication

   • Prevent a person from differentiating good and bad or beneficial and harmful
     • Voluntarily (one's choice and within his control)
       • Purposely taking intoxicants
     • Involuntarily (beyond one’s control)
       • Consume certain medicines or taking anaesthetic
         • Forced to take intoxicants

6. 6. Prodigality (sufha)

   • Sufha - A situation where a person’s financial decisions or activities is contrast to the guidelines of Shari’ah
   • Safeh- A person who is easily deceived
   • Only a court has the power to make sure that a person is a sefih, once he is declared a sefih, the judge would become his guardian
     • The father or grandfather has no right of guardianship over him
       • Any commercial transaction made could not be performed unless the judge approved
   • Types of sufha
     • Those who have become adult but are still sefih
     • Those who becomes sefih after reached the age of mumaiyz

7. 7. Insolvency/ Bankruptcy

   • Court may declare the debtor as insolvent to stop him from transferring his property in favour of others
   • When debtor’s debts are equal to or exceed his assets
   • Cannot enter into transactions that would reduce his assets
     • Create waqf, or make a gift, or selling a property for a lower price

8. 8. Terminal Illness

   • An illness which lead a person to strong probability of death
   • includes situations in which people fear death, although they may not be sick, as when a person is sentenced to death
   • may make certain contracts: waqf , charity, or make gift of his property to someof his heirs or non-heirs
   • Some of his dispositions may cause injustice to his legal heirs and the creditors
     • To protect, apply rule of wasiyyah, limiting his dispositions to 1/3 of his wealth