I. Introduction to ‘Aqad
‘Aqad is a kind of tasharruf/intention that caused into syari’ah barrier, which refers to “everything comes from a human being on their own intention and it being determined by the syari’ah compliance comes with its several rights.” Tasharruf itself is divided into two parts: tasharruf fi’li and tasharruf qauli/intention being act and intention being said. Tasharruf fi’li means something act by the people with their physical efforts more than their oral saying and tasharruf qauli in the contrary.
We could assumed some activities such as receiving the commodities of sales and purchasing activity as tasharruf fi’li where, its agreement being the tasharruf qauli one.
II. Definitions of ‘Aqad
Literally ‘aqad refers to the Arabic word, عقد يعقد عقدا means an agreement, and ‘aqad might also refers to “the rope” which is connecting some people which are involved in a certain agreement. Syari’ah also defines ‘aqad as the inter-connection among the people’s الربط and the covenant الاتفاق.
Terminologically, the scholars classified ‘aqad into two general views; ‘Aqad in term of general and ‘aqad in the specific term. According to Syafi’iyah, Hanafiah and Hanabilah ‘aqad in general has the same meaning as the literal definition. It is anything being act by the peoples on their own intention such as donations, divorcing statement, purchases, sales, etc.
Furthermore, the syariah’s scholars define ‘aqad as the restricted connection between ‘ijab and ‘qabul’ based on the syari’ah compliances which is caused into law’s barrier when the ‘aqad being agreed by two peoples or more.
III. The Element of ‘Aqad
From the explanations above, we could conclude that ‘aqad is an act that might be acted intentionally among the peoples (two or more), on their free personal will; this action is caused into some rights and obligations among them. An ‘aqad should consists of same element which are will be mentioned bellow:
- ‘Aqid refers to someone who have its ‘aqad, it should be two persons and more.
- Ma’qud ‘alaih refers to something which is became the object of ‘aqad.
- Maudhu’ al-‘Aqd refers to the main objectives of the ‘aqad.
- Shighat al-‘Aqd refers to the statement of the ‘aqid, it could be recited by the ‘aqid. In the past era shighat al-‘Aqd should be recited by the ‘aqid but, nowadays, it applied seems just like tasharruf fi’li which is more assumed as the acceptance of the parties who have the ‘aqad on their mu’ammalah activities.
Particularly for shighat al-‘Aqd it has 3 conditions which are:
a) It should be clear and could be understood.
b) It should be relevant and factual based on its íjab and qabul.
c) It should represent the real intentions of the ‘Aqid without no hesitations and pressure from the other parties.
While shighat al –‘Aqad refers to any statement that related to the oral acts, there are some other actions that caused into ‘Aqad. Some of those actions are:
a) The kitabah/written ‘Aqad it’s based on the syari’ah laws: الكتابة كالخطاب means: “writing of man is what he said”. It generally happened when the ‘Aqid is separated in long distance.
b) The isyarat/signal it generally happened when one or both ‘Aqid is unable to perform several sensed acts such as deaf mutes. It refers to the syari’ah laws: الإشارة المعهودة لأحرس كالبيان بالسان means: “The signals of deaf mutes presumed as their oral statements”.
c) The ta’athi/take and give with undetermined quantity. For instance: a fisherman who used to give some of his fishes to a farmer who used to give some of his rice back to the fishermen. It definitely different with sale-and purchased activities but it’s merely take and giving actions.
d) The lisan al-bal according to some scholars it happened when someone leave his property somewhere under someone intentions, it automatically caused into ida’ or the deposition of ‘Aqad.
IV. The Conditions of ‘Aqad
In the establishment of some ‘Aqad there are some conditions that should be fulfilled by the ‘Aqid. These conditions are generally classified in two categories; the general and specific preconditions. The general conditions should be fully completed during the contracts while the specific conditions pretended as the idhafi or additional conditions that ideally could be provided in additions of the compulsory one for instance: the precondition of witnesses in the marriage ceremony.
Here are some general conditions of ‘Aqad:
a) The one who take any ‘Aqad should be compatible in their actions. They couldn’t be unconscious ‘Aqid.
b) The syari’ah allowance on the objects of ‘Aqad.
c) The syari’ah allowance on the ‘Aqid to take some ‘Aqad.
d) The ‘Aqad on the forbidden sales.
e) The ‘Aqad should be caused into some advantages.
f) A complete ijab and qabul.
V. The types of ‘Aqad
There are kinds of ‘Aqad which are:
a) ‘Aqad Munjiz/direct ‘aqad means: the contract that directly being actualized a soon after the ‘Aqad is taken.
b) ‘Aqad Mu’alaq/pre-determined ‘aqad means: the contract that requires some pre-determined requirements such as the on-line shopping that generally requires the pay-pal or full payment before the stuffs delivery.
c) ‘Aqad Mudhaf/determined ‘aqad means: the contract that being determined its actualization period, it means that this kind of contract has no laws barrier up-to the determined period of contract’s actualization.
Beside ‘Aqad Munjiz, Mu’alaq and Mudhaf there are a lot of ‘Aqad that mentioned in syari’ah allowance, it based on its own point of views that might be different each other. Some of them differ in its point of views such as:
a) The availability of qismah on ‘aqad that differs ‘aqad into two: ‘aqad musammah that already determined by the syari’ah compliance its names and permissibility. For instant: sales and purchasing, charity and leasing. And ‘aqad ghair musammah in the contrary.
b) The permissibility of ‘aqad that differs ‘aqad into two: ‘aqad musyara’ah that its existence being allowed by the syari’ah compliance. Such as sales and purchases and some pawning activities. And ‘aqad mamnu’ah in the contrary, for instance: sale and purchasing pet’s embryo.
c) The validity of ‘aqad that differs ‘aqad into two as well: ‘aqad shahihah/ valid contract refers to the contract that has completed its conditions as whole. And ‘aqad fasihah/invalid contract refers to some ‘aqad that incompletely fulfilled its conditions.
d) The kinds of objects also differ ‘aqad into two: ‘aqad ‘ainiyah refers to it take and giving acts. Such as sale and purchase. And ‘aqad ghair ‘aniyah in the contrary such as aqad amanah.
e) The actualizing methods differ ‘aqad into two: the ‘aqad that should be done with the specific ceremony likes wedding ‘aqad that requires certain ceremonial acts. And ‘aqad ridla’iyah that need not some specific ceremonies.
f) The objectives of ‘aqad differ ‘aqad into five:
- The objective of possessions/tamlik.
- The objective of cooperation in business/musyarakah and mudharabah.
- The objective of trust building/tautsiq pawn activities.
- The objective of replacement/wakalah or exhortation/washiyah.
- The objective of deposition/ida’.
An ‘aqad is a crucial element of all muammalah activities, its define weather a muammalah is allowed by the syari’ah compliance or not. An ‘aqad should fulfill the mentioned element and conditions to be eligible contracts in Islam. There are many kinds of contracts in Islam and being classified in certain categories based on its point of views such as its availability, permissibility, validity, its object, actualizing ways its objectives etc. Furthermore, an ‘aqad causes into syari’ah barrier that could be violate by the ‘aqid (ilzam and iltizam) ilzam is the violations of one party on its own on the contract that being agreed among the two parties or more in an agreement. While iltizam is the authority on every party involved in an agreement to take an action or avoid it with refers to the contract.
Suhendi, Hendi., 2002, Fiqh Muammalah, Rajawali Pers, Jakarta
Hasbi Ash Shiddieqy, Muhammad., 2001, Pengantar Fiqh Muammalah, Pustaka Rizki Putra, Semarang.