The Law of Prohibition And Theory Of Prevention of Injury/ Harm: In The Light Of Islamic Shri’ah And Contemporary Laws Analytical Study

Abstract

The implementation and enforcement of the law of prohibition on harmful transactions completely halt the financial activities of individuals who are insane, incompetent, or unqualified, and those whose interference in property causes harm to the general and specific public. By imposing certain restrictions and limits on these transactions, it ensures that human behavior remains regulated and balanced. Considering these benefits, the conclusions drawn from this research paper are as follows:

1. Any individual, who, due to insanity, mental disorder, ignorance, or physical and mental weakness, is unable to manage property transactions beneficially and causes disruption on an individual and collective level through the exercise of ownership rights, will have a wise person appointed to oversee their financial affairs. This ensures the best personal and social interests related to their property. In this context, the statutory term "Interdiction" is closely related to the Islamic concept of legal disability (ḥajr). However, this law is silent on imposing restrictions on the foolish (safīh), the feeble-minded (maʿtūh), and others besides the insane and bankrupt.
2. Verbal transactions related to property by someone legally incapacitated (maḥjūr al-taṣarruf) are considered null and void because they have no actual existence. However, it is impossible to nullify actions once they have been physically executed. Islamic jurists agree that if a minor causes any bodily or financial harm, they will be held responsible, and compensation will be taken from their property.
3. A child, an insane person, and a fool cannot differentiate between beneficial and non-beneficial financial transactions due to their lack of wisdom, understanding, and experience. Therefore, the validity or invalidity of the transactions made by a child or a fool depends on the consent of their guardians.
4. There are natural and physical signs of puberty, and upon their appearance, both boys and girls are considered to have reached maturity. If no physical signs are evident, the determination of a boy or girl's maturity will be based on their age.
5. Abundance is a psychological virtue that requires the protection and management of wealth, while also preventing its loss and destruction.
6. Islamic law does not specify a particular age for the attainment of maturity, unlike statutory laws. Achieving maturity and understanding depends on the circumstances and conditions. In environments where a child demonstrates a mature mind and understanding at the time of reaching puberty, they will attain growth as they mature. Moreover, any period after reaching puberty where a child exhibits awareness and understanding will be considered the time for their maturation.
7. A foolish person can spend their obligatory funds, such as for Hajj and Zakat, on acts of goodness and welfare, as well as on necessities, provided that the spending does not involve extravagance or wastefulness.
8. In such a disposition of personal property which causes harm to others, in this case his powers can be limited and this is present both in Shariat and law.

      It has been discussed in detail in this article