Akademik Veri Yönetim Sistemi
DINBILIMLERI AKADEMIK ARASTIRMA DERGISI-JOURNAL OF ACADEMIC RESEARCH IN RELIGIOUS SCIENCES, cilt.25, sa.2, ss.1781-1813, 2025 (ESCI, TRDizin)
In Islamic law of obligations, the declarations of intent which constitute the essential elements (rukn) of a contract must converge in terms of time or place for the contract to be concluded. This convergence is facilitated by what is referred to as the contract session (majlis al-'aqd). The contract session is a foundational condition for the formation (in'iqad) of a contract, with its primary function being to establish a connection between the offer (ijab) and acceptance (qabul). Modern definitions typically emphasize this aspect of the contract session, often neglecting its impact on the validity (sihha) of the contract. However, an examination of the rules governing exchange contracts and the defect (fasad) theory articulated within the Hanafi school demonstrates that numerous conditions must be fulfilled within the session to ensure the validity of the contract or to rectify a defective (fasid) contract. This article, therefore, explores the influence of the contract session on the formation and validity of a contract, specifically within the scope of the Hanafi school. To this end, the concept of the contract session and its role within contract theory are first addressed. Subsequently, the relationship between the contract session and the formation and validity of a contract is analyzed in two stages, the first being the in'iqad session, which encompasses the period between offer and acceptance. The session of contract formation (majlis al-in'iqad) begins with an offer and concludes with acceptance. In the session of contract formation, the time elapsed between offer and acceptance is considered as if it were a single moment. Provided that no circumstance disrupts the continuity of the session during this period, the acceptance is deemed inseparable from the offer, and they are considered, in effect, to have been made consecutively. In this process, sustaining the unity of the assembly requires the parties to remain actively involved with the contract and to avoid any actions that may indicate a withdrawal from it. The second stage of the session extends from the point of acceptance until the parties' physical separation. Considering the impact of this phase on the contract, it would be appropriate, in our view, to refer to it as the validity session (majlis al-sihha). There are three primary reasons for the emergence of the validity session in contracts: prevent ing the exchange of debt for debt, avoiding interest (riba), and eliminating defective elements to render the contract valid. According to the Hanafi school, in a sale contract, the physical delivery of the sold item during the contract session is not required to prevent the exchange of debt for debt. Instead, the item should be designated during the contract session. However, delivering the exchanged items during the contract session is obligatory in advance payment sale (salam) and currency exchange (sarf) transactions. For the validity of these contracts, the designation and delivery must occur no later than the moment the parties physically separate. In this context, this session stage may be regarded as a session of validity. The second factor that brings out the session of validity is the prohibition of interest. Suppose the exchanged items share common characteristics in terms of measurement by volume (kayl) or weight (wazn). In that case, one of the two goods being exchanged must be designated during the contract session to prevent the emergence of deferred interest. Furthermore, if the traded goods are of the same genus, equality must be ensured during the contract session to avoid surplus interest. In both cases, the relevant period extends not only until the acceptance of the contract but also until the parties physically separate after acceptance. Thus, it is evident that the session of validity plays a decisive role in ensuring compliance with the conditions related to the prohibition of interest. The third factor that brings out the validity session is removing a corrupting element (mufsid) to render the contract valid. For the defect to be rectified, it must not have become fixed, and there must be no definitive decision by the parties or a judicial ruling to annul the contract. In some cases, the fixation of the defect is contingent upon the contract session. Once the parties physically separate, the defect becomes fixed, and rendering the contract valid is no longer possible.