CHAPTER 3

RELATED MAXIM OF
PRINCIPLE OF INTENTION

Prepared by: Zulaipa Binti Ruzulan

ACIS
 ‫‪Related Maxims‬‬

‫‪ ‬عدم اشتراط النية في العبادة ال تكون عادة أو ال تلتبيس‬

‫‪ ‬العبرة في العقود للمقاصد والمعاني ال لألفاظ والمباني‬
‫‪ ‬الغاية ال تبرر الوسيلة‬
‫‪Applications ‬‬
 RELATED MAXIM – IN IBADAH

1.‫ت( ( ( ((لتبيس‬ ( (‫عدم ا(ش((ترا(ط ا ( ( (لنية ف ( ( ((يا( ( ((لعبادة ال( ( ت( ( ( ((كونع ((ادة أو ال‬
“No intention is needed in the ibadat which is not ‘adah (traditional/custom)”
Example:
 Belief in god, azan, cleansing the impurity,
 reciting Quran, du’a, zikr as opposed to eating, playing, sitting, reading
books

But, the intention is needed in the ibadah which have similarities OR to

differentiate the ranks

Example:
 zakah and sadaqah
 The principle of intention is needed when there is a need for
differentiate between the worship and custom practices.
 However, the exclusion is given when worship and custom are
dissimilar.
 There is an opinion stated that intention is compulsory for reciting
Quran if the person makes a vow (nazar). This is because to
differentiate between mandub and wajib in terms of responsibility.
 In terms of azan, there is no need for niyyah (popular opinion).
But in the event of the azan that is not for the purpose of
perfoming solat, some opines that need for the niyyah.
 Khutbah Jum’ah - There is an opinion said it is not compulsory
for niyyah. But some opined that there is a need for the niyyah
because khutbatayn are likely treated as 2 rak’ah of prayer.
 In terms of the acts of al-tark (to avoid); niyyah is not
compulsory because the actions resemble as it’s meaning i.e.
to avoid bad deeds (ma’siyaat).
- The case of ghasl al-mayyit, there is no condition for niyyah
because the action is treated as ‘al-tanzif’ (cleansing the
impurities). The fuqaha’ analogized the case with the case of
avoiding adultery.
 However in terms of the acts of al-iqdam (to do), niyyah is
needed.
- The issue of khuthbah al-jum’ah.
 RELATED MAXIM – IN CONTRACT

2.‫ل ( ((ألفاظ و(ا( ( ((لمبان(ي‬ ( (‫ا( ( ((لعبرة ف ( ( ((يا( ( ((لعقود ل(لمقاصد و(ا( ( ((لمع((ان(يال‬
“ In contracts, effect is given to intention and meaning, and not
words and forms”

• Contracts are important to be highlighted because they are used widely

in variety of situations, to fulfill the needs of the contracting parties.
• The maxim are divided over the validity. Jumhur implement the maxim
in their rulings on most contracts, although they do make exceptions in
certain cases.
• However, the Shafi’es implement the opposite maxims,
‫العبرة في العقود لألفاظ والمباني الللمقاصد والمعاني‬
“ In contracts, greater weight is given to words and forms rather than
intention and meaning”
 Despite, in certain cases Shafi’es do end up agreeing the the other three schools. Thus.
The agreed maxim by the jumhur to be the primary ruligns with some exceptions. While
the Shafi’es consider the opposite to be the primary ruling with some exceptions.
 Explanations:
Al-alfaz
The plural of lafz, which literally means “ enunciation of the word’.
Ma’aani
The plural of the word ma’na. which literally means ‘meaning, sense or import’. In this
context, ma’na is the true intention and motive for which the two contracting parties entered
into the contract, which is normally reflected by words used in the offer and acceptance.
 From the alfaz, it resembles a meaning or more than that. And it becomes the complete
and understandable sentence.
Maqasid
Determination of intention (iradat al-niyyah), there will be the intention behind the meaning,
whereby it will be comprehended directly or indirectly ( with the sign) and only could be
known from the sole person.
• Verily, understanding al-ma’aani is easier than al-
maqasid.
• The effect to be given to any particular transaction must
in line with the intent underlying of such contracts.
• The ultimate concern shall be given to the intended
objectives, and the execution must be based on the
meanings and substances of the contracts.
• Where there are differences between expression and
meaning, consideration is given to the meaning and not
literal wording
 RELATED MAXIM – IN CONTRACT

• The basic rule of Shariah is that contracts are to be

understood and applied on the basis of the words used
because normally the word and form normally reflect
the intent of the contracting parties.

• However, when there are strong indicators of a conflict

between the words and the intent, the intent prevails
because it determines the legal status and consequence

• Both should be in conformity.

RELATED MAXIM – IN CONTRACT

Ibn Qayyim classified into 3 types of words in terms of their

relationship with intention
i. The word correspond with intention. E.g. talak
ii. The literal meaning of expression is clearly unintended.
a) no intention of the meaning of the words and nor the
implications. E.g; insane, sleep, very drunk, & force by
violence
b) intends a different meaning from the apparent meaning.
E.g; used hints to avoid lies by using ambiguous expression.
With this, must consider the intention and substance
iii. The words have dominant literal meaning, but less obvious
the meaning of the speaker could where no clues to determine
the intention. With this, left to the real intention and substance.
RELATED MAXIM – IN CONTRACT

Example:
1- The hibah with the counter value of (‘iwad) is a sale (bay’).
2- I’arah with the condition of ‘iwad is ijarah(leasing).
3- If a person buys from grocer and tell him, “take this sword as a trust
(amanah) with you until I bring you its price”. In this case the sword is
considered as pledge (rahn) and it should follow the rules of pledging .
- Must be differentiated between rahn and amanah.
4- A gift in return for a sum of money which is considered as a sale.
- Because with the condition of thaman and lead to the sale contract.
5- A contract of mudharabah that stipulates all the profit for the worker is
considered as loan.
6- Creditors makes a gift of the debt to the creditor, it is actually ibra’.
RELATED MAXIM – IN CONTRACT

Summary:
 Intention and substance prevails in the rules that govern

financial transactions
 Verbal expression of offer and acceptance is only to
signify the intention for which the transacting parties
undertake the contract.
 The initial basis for a judicial decision is the outward

expression in case there is no indication of an intention at

odds with it,
 If there is conflicting intention, and there is no way to

reconcile intention and form, intention get the preference.

RELATED MAXIM - OBJECTIVE VS
MEAN
3. ‫ا( ( ((لغ((اية ال( ( ت( ( ( ((برر ا ( ((لوس((يلة‬
“The ends does not justify the means”

• Good intention cannot be accepted if the means are contradict to Islam

• The intention limits the ways in jurisdictions.
• The ways is part of the objective. It is impossible that the good ends
reach through the bad ways, and the cruel ways does not possible to
achieve justice.

Example:
 Donate the money gain from the win of lottery to the needy. Welfare
Lottery, amal-based concert.
RELATIONSHIP BETWEEN AN ACT/POLICY
WITH INTENTION

1) Act/ policies that are good in themselves and are

actuated by good objectives/ intentions
 Ideal
 Example: Government to promote public welfare through
zakat and charity funds

2)Act/policies that are not good in themselves but are

resorted for commendable objectives
 Need to make an amendment
 Example: Mobilizing funds for charity by means of games
or by floating interest-bearing loans and bonds
 RELATIONSHIP BETWEEN AN ACT
WITH INTENTION

3) Act/ policies that are actuated by objectionable

intentions but lead to good results
 Need to make an amendment
 Example: Nationalization or rationalization of the products
and industries and avoidance of incongruent growth of
industry
 Certain people only could achieve it. Races, class etc.

4) Objectionable intentions with objectionable policies

 Rejected
 Example: Smuggling of wine for use by Muslims
APPLICATION

1- Intention play a role in rendering any particular

transaction as halal or haram. They will get what they
strive for it although the intention is undisclosed.
e.g- Fraudulent is prohibited and such a contract is invalid

2- Monetary exchange likes sales, purchases, leases, gifts

would results in further consequence where one party
gaining ownership and the latter lost it. If the exchanges is
associated with an act that would represent the intention
such as non-seriousness, kidding, acting or being forced.
Then the eventual outcome shall not take effect.
APPLICATION

3- Agency contracts – the subject matters belong to the

whose money was used in concluding the sale contract.

4- A person owes two debts to another person of which one

of them is a collaterized debt. Then, he manages to settle
one and claim that the settlement for the collaterized debt.
But, the creditor denies, and insisting that the settlement is
for the other debt. In this case, the words of the debtor
prevail.

5- The case of SC members.

 APPLICATION

6- If a person finds someone’s belonging lying on the road and picks

it up, his liability for it will rely on the intention. If he intends to
hand it over, then he will be treated as trustee and will not be
required to indemnify the owner in the case the property is destroyed
while in his possession. In contrast, if the intention of taking it for
himself, he would be treated as a usurper (ghasib) and would be
required to indemnify the owner if the property is destroyed.

7. If a woman purchases gold jewelry in order to wear it for her

husband, according to the majority jurists, she need not to pay zakah.
However, if the intention is to use it as savings for a time of need, she
must pay zakah on it, even according to the majority view.
End of Principle 1