Parties to contracts may include whatever terms and conditions they manage to get the other party to agree to. However, instances could hypothetically exist in which the terms and conditions included in a contract are meaningless - for example, a motor rental contract that precludes the vehicle from ever being driven, or a marriage contract that precludes conjugal rights. Clauses that contradict the purpose of a contract are not considered to have effect and are thus ignored by jurists.

Terms And Conditions Prohibited In Islamic Law

1. Rental of premises subject to their being used to purvey intoxicants.

2. The making of monetary loans subject to payments of interest.

3. The employment of attractive women specifically to beguile and lure custom.

4. The sale of arms or equipment designed to attack the innocent.

5. The sale of grapes subject to their being used in wine production.

6. The sale of premises, subject to the purchaser agreeing to continue to run casinos from them.

According to shari’ah, such conditions are prohibited on the grounds that they constitute an encouragement to major sins. Some jurists discuss the possibility of this type of contract being valid with their terms and conditions being ignored. However, others are of the opinion that the inclusion of any of the above conditions renders contracts invalid.

The Basis Of This Principle

From The Qur’an

1. O you who believe, fulfil the contracts you make.

"O' you who have Faith! Fulfil the contracts (made by you or people). The four-footed animals are lawful to you (for food) except those which will be recited unto you, pilgrim garb, and while you are in deem not game permitted to be hunted. Verily Allah decrees whatever He intends." (Surah Al-Ma’idah, 5:1)

2. Remain true to your word for you are accountable.

“And do not approach the property of the orphan except in the best manner (to his advantage); until he reaches his maturity, and keep the promise, verily every promise will be questioned about.” (Surah ‘Isra, 17:34)

From Ahadith

1. The Prophet (S) said, 'Believers must abide by conditions that they have agreed to.'1

2. The Prophet (S) said, 'Those who believe in Allah and the hereafter must fulfil their promises.'2

Prerequisites For Validity Of The Terms And Conditions Of Contracts

We need to be familiar with what constitutes a valid condition. In some references on Islamic jurisprudence five prerequisites are needed for terms and conditions to be considered valid:

1. To Be Within The Abilities Of The Contracting Parties

Although this seems obvious, most jurists cite it as a prerequisite. The common example they give for a condition that is not within the ability of anyone to meet is the sale of dates - ready for consumption - at a time when such dates have only recently appeared on the palm trees. To mature, dates require suitable conditions and time to develop and ripen. It is not within the ability of any vendor to command dates to ripen instantly.

Another example is the sale of a motor car that is claimed not to require any type of fuel - clearly not within the realms of possibility. Yet another example is a stipulation that the purchaser paint a painting, regardless of their having or not having artistic ability to do so.

2. Not To Contradict Anything That Has Been Set By The Qur’an And Sunnah

This is the most important prerequisite for all who claim to submit to Islamic law. See the examples above prohibited by the Qur'an and Sunnah - that are not permissible to include as conditions to a contract.

Abdullah Ibn Sinan reports, with an authentic chain of narrators, that Imam al-Sadiq (‘a) said, 'Muslims have to honour their commitments - unless the terms and conditions of a contract contradict the Holy Qur'an.

A similar narration states that Imam al-Sadiq (‘a) said, ‘It is not permissible to include conditions to a contract that oppose the Holy Qur'an.’3

When an Islamically unacceptable condition was included in a contract, the Prophet (S) declared, 'Any term or condition that does not exist in the Book of Allah is invalid. What Allah ordains is supreme and binding upon those who believe.'4

As the Sunnah supports and details Qur'anic principles, conditions that contradict it are not acceptable.

3. To Be Reasonable

4. Not To Negate The Purpose Of The Contract Itself

Conditions that negate the purpose of a contract are void and meaningless. Examples include: a vehicle rental contract that precludes the car from being driven, or a marriage contract that precludes conjugal rights (cited above).

Those of sound mind who include such terms and conditions can have no genuine interest in the contract itself. Serious and sincere intentions are necessary prerequisites for contracts to be established.

5. To Be Clear And Specific

Ambiguity in the terms and conditions of a contract is not acceptable. A phrase such as, 'I will rent my house to you on condition that you do me a favour', without clearly specifying what is meant by the word 'favour', renders a contract invalid due to that ambiguity.

If the currency to be used in a contract is not specified, confusion may result from that lack of transparency. Every detail within a contract needs to be clearly stated and understood. Bids for construction contracts require bills of works and specifications that detail precisely the materials, work and time span of the contract. Ambiguity in such details leads to future disputes.

• 1. Tahzeeb al-Ahkam Vol. 7, p. 37 & Al-lstibsar Vol. 3, p. 232.
• 2. Al-Kafi Vol. 2, p. 270.
• 3. Wasa'il al Shi’ah Vol. 18, p. 16.
• 4. Sunan al-Bayhaqi Vol. 4, p. 338.