Legal capacity (dhimma in Arabic) refers to

“a description presumed in a person rendering such a person a possible candidate to receive a

legislative injunction”.

Al-Sabouni defines legal capacity as:

“the ability of a person to oblige, be obliged and conduct one‟s affairs by oneself”

 What legal capacity refers to?

 Legal capacity refers to the power that qualifies individuals (ahliyyah) to secure and
exercise rights and privileges while being culpable of depravity.

 Under the Shari‟ah, legal capacity involves privileges, duties and responsibilities
inherently enjoyed and exercised by an individual.

Legal capacity not only covers the potential of an individual to acquire rights and obligations
(ahlıyat al wujub) but also the capacity to exercise, execute and perform such rights and duties
(ahlıyat al-ada’)

• Types of legal capacity

Muslim jurists divide legal capacity into three types.

(I) Complete capacity
Complete respective capacity is found in a human being after his birth which makes him eligible
for the acquisition of all kinds of rights and obligations. Complete active capacity is established
in human being when he or she attains full mental development and acquires the ability to
discriminate.
(II) Deficient capacity
It is that where the basis of legal capacity is not fully developed e. g. unborn child, minor.
(III) Imperfect capacity
It is that where the basis of legal capacity are present such as being a human and discretion but
some external attribute does not permit the recognition of the legal validity of certain acts. E. g.
evidence of woman, slaves

Hadith

Generally, every Muslim is inherently endowed with legal capacity, to some extent, save for
minors, lunatics and those in sleep. The Prophet highlighted this in a Hadith when he said:

“There are three (persons) whose actions are not recorded: A minor until he reaches puberty,
a lunatic until he regains his reason, and a sleeper until he awakes.”
• Legal capacity of a minor

• Thus, a minor (sabi) may be lacking this faculty. Minors are generally assumed to possess
the complete capacity for acquisition (ahlıyat al wujub). However, minors do not have the
capacity for execution (ahlıyat al-ada’) until they reach the age of actual or legal puberty.

• This is the time that they are assumed to have attained full development of their intellect
(‘aql) and discretion (rushd) – two qualities that are important to capacity.

• The ‘ilah (legal reason), for this is because it is only upon full development of their
intellectual abilities that they can understand the communication of the Lawgiver (Mukallif).

• CIRCUMSTANCES AFFECTING LEGAL CAPACITY GENERALLY

Circumstances affecting legal capacity generally include persons with full legal capacity and
those considered as artificial persons

• Unborn child

An individual is said to have capacity when they are fully developed intellectually and have the
discretion (rushd) to act. Thus, an unborn child (janin) acquires some rights, like inheritance,
bequest and parentage, but lacks the capacity to perform certain obligations. This is because
the janin is still attached to the mother and her personality is deficient/incomplete/wanting

• Dead person

A dead person (mayyit) has deficient capacity.As far as his rights are conerned, a deceased
person is entitled to have his funeral been done according to his faith when he was alive and
funeral expenses discharged from his estate.

Secondly, a corpse is relieved of its duties to perform the obligatory prayers but obligations such
as debts and bequests may be recovered from the deceased‟s estate

• Lunatic

An insane person also lacks capacity to perform obligations. Like minors, insane persons can
only execute acts by themselves only if the acts are entirely beneficial to themselves.

For instance, an insane person may not make a valid Will without supervision of someone.
However, they may accept gifts or charity by themselves without the permission of their
guardians.

 CLASSIFICATION OF LEGAL CAPACITY

Legal capacity has been classified into two categories:

1.Recepective legal capacity
2. Active legal capacity

Receptive capacity

Receptive capacity is called ahliay-tu-wajub, which means capacity for acquisition both rights
and obligations, e. g a child yet to be born has also some capacity which enables him to inherit

Active capacity

Active capacity is called ahliay-tul-ada, which means capacity for the exercise of rights and the
discharge of obligations

Person of full legal capacity

A person with full legal capacity is,

I. A living human being of

II. Mature age and understanding,

III. Free,

IV. of Muslim faith, and

V. Not seized with death or illness and solvent

Artificial person.

Under this doctrine, a company is recognized as an artificial or legal person and have
distinguished features, namely perpetual succession, right to enter into legal proceedings, and
deals with property under its own name and ability to limit the liability of its members.

Under the Islamic law, the term “musyarakah” or “shirkah” is used to refer to business entities.
Shirkah literally means „intermingle‟ implying the intermingling of properties that form the
capital, whereby one cannot be differentiated from the other. The approach in classifying
business entities is different between the common law and the Islamic law whereby under the
common law, the regime of a company is totally different from a partnership and both are
subjected to different laws. However under the Islamic law, shirkah could refer to both company
and partnership structure.

• Circumstances affecting legal capacity in particular cases

There are again circumstances which effect the application of law to the acts of a person whose
general capacity is not affected.
These circumstances have relation to the state of volition and knowledge of the doer of an act
preceding or accompanying such act, for example, coercion, ignorance of law, or of facts etc;

 CLASSIFICATION OF CAPACITY IN PARTICULAR CASES

The Muhammadan Jurists group the circumstances which generally affect the legal capacity of a
person or interferes with the proper legal effect of a man‟s actions in particular cases into two
classes:

a. Samawi

b. Maksuba

Samawi

These are circumstances which are work or acts of Providence, that is to say, those which are
beyond the control of a man. Act of providence is an accident against which ordinary skill and
foresight could not guard. This is synonymous to act of God. For certain acts no one can be held
responsible. Naturally occurring events that are unavoidable can be considered as act of
providence. For instances idiocy, forgetfulness, sleep, a fainting fit, illness and death

Maksuba

These are the circumstances which are created by man such as, ignorance of the truth of Islamic
religion, ignorance of law or facts in relation to a particular matter and slavery, drunkenness,
folly, jest, mistake and duress are circumstances belong to Maksuba, and some are attributable to
the person whose acts are in question, such as ignorance, speaking in jest, drunkenness and
mistake etc; while duress is a circumstance created by men other than the person acting under the
influence.

 Circumstances affecting legal capacity in particular cases

Bearing in mind these general considerations let us now follow the cases in which they are
illustrated.

 Forgetfulness
 Sleep
 Fainting fit
 Mistake
 Intoxication
 Jest
 Coercion
 Fraud
Forgetfulness

The Arabic word that corresponds to “human being” is Insan. This word takes its root from the
word Nisyan, which literally means “forgetfulness”. Man is undeniably a very forgetful creature!
This trait of forgetfulness has two sides to it; there‟s a good side and a bad side.

Forgetfulness according to Muhammadan Jurists is brought about by God, in other words, it is

not a condition attributable to any act of men. Forgetfulness implies absence of will, but it does
not negative legal capacity, though there are instances, when forgetfulness forms a good excuse
in matters which are purely the right of God, for example, when someone eats or drinks during
his fast due to forgetfulness. Forgetfulness however, forms no excuse if the act affects private
rights of others, hence, if a man in a state of forgetfulness destroys or damages another‟s
property he will be held liable.

Sleep

Sleep is a condition which incapacitates a man during the time it lasts from perceiving by means
of his senses and from all voluntary movements. Any speech or utterances whether in the nature
of a creative act or information made in such a state would be void and of no legal effect, such as
confession of faith, apostasy, divorce, administration, manumission, sale , gift, and the like. But a
sleeping person happening to cause damage to another‟s property will be held liable.

Fainting fit

Fainting fit is a sudden temporary loss of consciousness, if a person is seized with a fainting fit
which is brought about by disease, he loses his power of perception and voluntary motion. As
long as it lasts all his acts will be treated on the same footing as those done in sleep.

Mistake

Under Islamic law, if an act is done under ordinary circumstances would amount to to an offence
be done under a mistake, the person doing it will be given the benefit of doubt, so that the
sentences of the nature of hadd and retaliation will not be inflicted on him. But as to his liability
for any injury or loss caused to another‟s rights, that is, for the violation of individual rights,
mistake will not be regarded as a good excuse in law, but it is a good ground for modifying such
liability as benefit of doubt, such as the payment of diyat.

• According to Hanafi school of thought, the words of talaq uttered by mistake operate as a
divorce. For instance, if a man intending to say to his wife „ thou are sitting‟ makes a slip
and says „ thou are divorced‟ , a valid divorce will be effected. The shafi‟s however, do
not agree with this view point.
Intoxication

Intoxication is in itself forbidden in Islam, Khamr (Arabic:‫خمر‬is an Arabic word

for intoxication. Intoxication which is brought about by a man being forced to drink intoxicating
liquor as , for instance, when, he is about to die of thirst and no other drink is available, or by
drugs taken medicinally such as opium, or by the use of preparations having the properties of
food made from wheat, barley or honey, is permitted by the law as spiritually indifferent,
however, legal capacity of a aman is affected by intoxication when it is not caused by forbidden
means in the same way as by fit of unconsciousness, that is to say all his contracts and legal
declarations such as, waqf, hiba, sale, divorce etc; would be void in law. But he is liable for any
loss caused by him to another‟s property.

Jest (Joke/Kidding)

If a man utters words and expressions without intending to convey either their primary or
secondary meaning, he is said to speak in hazl or jest. In matters of faith, the utterance of words,
denoting un – belief without intending to mean anything makes the speaker guilty of unbelief,
this is because jesting in such matters tends to lower the prestige of islam, which is in itself an
act of unbelief, and not because the words themselves are given effect.

 COERCION AND DURESS

The effect of duress or coercion on the legal effect of a man‟s act done under such influence has
three aspects:

1. How far the act is valid or effective,

2. How far the jurist is responsible to a third person who may be injuriously affected by the
act?

3. What is the responsibility of the coercer towards the doer of the act and towards any third
person who may be affected thereby?

Coercion

Coercion or duress having regard to the intensity of its effect on the freedom of action of the
person subjected to it is of two kinds. If it consists of a threat to destroy a man‟s life or limb it is
to translate the language of Aarb writers, called constraining „maljiin‟, and if it is exercised by
imprisoning , confining or beating a man, it is regarded as non – constraining „ghair – ul –
maljiin‟. Both forms of coercion deprive a man‟s act of the element of consent. Under islamic
law, if a man is not in danger of losing life or limb he should not choose to break the law but
rather put up with the consequences of conforming to it. At the same time a person acting under
such compulsion can not be said to consent to or be satisfied that he should do the act to which
he is compelled

Fraud

Fraud, affects a man‟s judgment but not his intention or consent. It follows therefore, that acts
which are not capable of being undone, such as divorce and manumission would be valid and
operative, even if effected under fraud. Both transactions of the nature of Muamillat such as sale,
a lease and the like would if vitiated by fraud, be always voidable at the instance of the party
defrauded.