Maxim
Maxim
This legal maxim means that the effect in a contract depends on the
objectives and the meaning, not based on the words and phrases. Other
words which represent the same meaning with this maxim are:
،ن
مرر ب ب ه
ن عل ر
رضى الله عنه ع ر ب ل الل ل ه
ه صلى الله عليه وسلم سو ل ل رقا ر
ل رر ل رقا ر
ب خ ل
طا ه ال ب ر
ر
سول ههه ه إ هرلى الل لهه ورإ هرلى رر ل
جررت ل ل
ت هه ب ن ر
كان ر ب م بو ى فر ر
ما ن ر ر
ئ ر مره ئما ل ه ب ما ل
ل هبالن ني لةه ورإ هن ل ر ما الع ب ر إ هن ل ر
كانت هجرته إرلى دنيا يصيبها أ رو ا ر
حرهامررأةئ ي رن بك ه ل
لبر ل ه لر ه ب ن ر ر ب ه ب ر ل ل ه م ب
سول ههه ور ر ه إ هرلى الل لهه ورإ هرلى رر ل فرهه ب
جررت ل ل
جرر إ هل ري بهه
ها ر ه إ هرلى ر
ما ر فرهه ب
جررت ل ل
On the authority of Omar bin Al-Khattab, who said: I heard the messenger of
Allah Sallallahu Alaihi Wasallam say : “Actions are but by intention and every man
shall have but that which he intended. Thus he whose migration was for Allah and
His messenger, his migration was for Allah and His messenger, and he whose
migration was to achieve some worldly benefit or to take some woman in marriage,
his migration was for that for which he migrated.” ~ Related by Bukhari and Muslim1
The hadith shows the important of intention in anything that people do.
Three legal maxims are derived from this hadith which are:
Hence, this part will discuss the Islamic legal maxim which is “the effect in
contracts is based on the objectives and meaning, not words and phrases”
The maxim means that, in all transaction and contracts the ultimate
concern shall be given to the intended objectives therein, and the
execution shall be done based on the meanings and substances of the
contracts. Variances of the form and word shall not divert the contracts
from the underlying objectives that the contract is grounded thereupon.
When a contract is concluded, words used by the contracting parties are
not the one to be considered but the real intention behind it and not the
words used. The words used just represent the meanings.
1 Islamic Legal Maxims in Financial Transactions. (n.d.). Retrieved December 16, 2015, from
http://alnaqiy.com/home/article/islamic-legal-maxims-in-financial-transactions/
Say for example, in a contract of sale, parties to the contract may
pronounce words which do not indicate a sale. He may use the word such
as hibah in the offer as long as the nature of the contract is exchange. The
contract is a valid sale contract because both parties indicate their
consents to the exchange between the object and the price. Here, even
though it is a nomination form and the nominee appointed is merely a
trustee according to the 1972 fatwa, the wordings of the nomination
might indicate a different connotation. It does not necessarily mean that a
nominee is a trustee but it depends on the meaning of the nomination
clause.
References
2. 2. Abdullah, M., Arifin, M., Omar, M., & Mohd Napiah, M. (2012). Is a
Nominee a Trustee or a Beneficiary? A Study on the Islamic Legal
Maxim “In Contracts Effect is Given to Intention and Meaning and
not Words and Forms” and Its Relevance to the Nomination
Concept and Practice in the Administration of a Muslim’s Estate.
Australian Journal of Basic and Applied Sciences, 6(11), 153-159.
Retrieved from
3. http://irep.iium.edu.my/28902/1/Is_aNominee.pdf