The importance of mutual consent in social relationships under the Shari'ah

Wan Muhammad, Ramizah and Jahn Kassim, Puteri Nemie (2015) The importance of mutual consent in social relationships under the Shari'ah. In: 4th International Conference on Law & Society (ICLAS IV) 2015 , 10th-11th May 2015, Auditorium, Academic Building (UniSZA), Kuala Trengganu.

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Abstract

Consent is recognized under Islamic Law as a necessary element in any social relationship (muamalat) between individuals. The importance of mutual consent between parties is regarded as predominant in various economic and non-economic activities, including business transactions, marriage contracts, punishment of criminal offenders and even for those seeking medical treatment. Thus, the requirement for mutual consent is indispensable in any transaction, without which the contract will be declared as null and void and ultimately, carries no legal effect. This is based on Quranic verse which states: “O you who have believed, do not consume one another's wealth unjustly but only [in lawful] business by mutual consent” (4:29). The Prophet Muhammad (peace be upon him) has also been reported to have said: “Sale is but based on mutual consent”. These evidences clearly depict that all transactions must be based on free willingness of parties involved and the principles governing consent under the Shariáh has three basic elements, that is, (i) Intention (Niyyah); (ii) Will (Irādah); and (iii) Choice (Ikhtiyār). Particularly, for those seeking medical treatment, consent is regarded as an indispensable element which must be obtained prior to executing the medical treatment. A doctor is under a duty to obtain consent from his patient beginning from the stage of informing the material risks to the patient until the completion of the medical treatment. Once consent has been obtained in accordance with the demands of the Shari’ah, then only the medical treatment will be considered to have been legally performed.

Item Type:	Conference or Workshop Item (UNSPECIFIED)
Additional Information:	1717/42946 (ISBN: 978-967-0899-00-8)
Uncontrolled Keywords:	mutual consent, informed consent, social relationships, Shari'ah
Subjects:	K Law > K Law (General) K Law > KBP Islamic Law
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button):	Ahmad Ibrahim Kulliyyah of Laws > Department of Islamic Law
Depositing User:	Professor Dr Puteri Nemie Jahn Kassim
Date Deposited:	29 May 2015 13:45
Last Modified:	23 May 2018 08:46
URI:	http://irep.iium.edu.my/id/eprint/42946

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