ISLAMIC LEGAL MAXIMS

The first maxim in al-qawaid al-fiqhiyyah al-asliyyah, is al-umur bi

maqosidiha (which means acts are judged by the intention behind
them) is an all-inclusive maxim that has implications that scholars
have discussed in various areas in commercial transactions. This
maxim means every practice, verbal or physical, brings different
impact and judgment from shariah view, depending on ones
intention and objective.

One of its sub legal maxim is

al-ibratu fi al-uqud li al-maqasid wa al-maani la li al-alfaz wa almabani

(Contracts are to be understood in relation to their intention and
substance, not by the words and phrases).

This legal maxim means that the effect in a contract depends on the
objectives and the meaning, not based on the words and phrases. Other
words which represent the same meaning with this maxim are:
1. The effect in dealings is based on the objectives and meanings,
and not words and phrases
2. Which one shall be considered in contracts, its form or its
substance?
3. The norm in contracts is based on the word of the contracting
parties
4. Intention and objectives shall be considered in dealings as well as
in customs
5. Consideration in contracts is to be given its meanings
This legal maxim is derived from the hadith of Rasulullah (PBUH).

On the authority of Omar bin Al-Khattab, who said: I heard the messenger of
Allah Sallallahu Alaihi Wasallam say : Actions are but by intention and every man
shall have but that which he intended. Thus he whose migration was for Allah and
His messenger, his migration was for Allah and His messenger, and he whose
migration was to achieve some worldly benefit or to take some woman in marriage,
his migration was for that for which he migrated. ~ Related by Bukhari and Muslim1

The hadith shows the important of intention in anything that people do.
Three legal maxims are derived from this hadith which are:
1) Basis of all acts is objective there of (al umur bi-maqasidiha)
2) In contracts, effect is given to the objectives and meanings not
to the words and phrases
3) Every legal artifice whereby nullification of aright, or affirmation
of a wrong, is devised is unlawful.
Hence, this part will discuss the Islamic legal maxim which is the effect in
contracts is based on the objectives and meaning, not words and phrases
The maxim means that, in all transaction and contracts the ultimate
concern shall be given to the intended objectives therein, and the
execution shall be done based on the meanings and substances of the
contracts. Variances of the form and word shall not divert the contracts
from the underlying objectives that the contract is grounded thereupon.
When a contract is concluded, words used by the contracting parties are
not the one to be considered but the real intention behind it and not the
words used. The words used just represent the meanings.
People might be different in expressing their true intention or
meaning. Therefore, where there are differences between expression and
meaning, consideration is given to the meaning and not literal wording.
1 Islamic Legal Maxims in Financial Transactions. (n.d.). Retrieved December 16, 2015, from
http://alnaqiy.com/home/article/islamic-legal-maxims-in-financial-transactions/

Say for example, in a contract of sale, parties to the contract may

pronounce words which do not indicate a sale. He may use the word such
as hibah in the offer as long as the nature of the contract is exchange. The
contract is a valid sale contract because both parties indicate their
consents to the exchange between the object and the price. Here, even
though it is a nomination form and the nominee appointed is merely a
trustee according to the 1972 fatwa, the wordings of the nomination
might indicate a different connotation. It does not necessarily mean that a
nominee is a trustee but it depends on the meaning of the nomination
clause.

References
1. Islamic Legal Maxims in Financial Transactions. (n.d.). Retrieved
December 16, 2015, from http://alnaqiy.com/home/article/islamiclegal-maxims-in-financial-transactions/
2. 2. Abdullah, M., Arifin, M., Omar, M., & Mohd Napiah, M. (2012). Is a
Nominee a Trustee or a Beneficiary? A Study on the Islamic Legal
Maxim In Contracts Effect is Given to Intention and Meaning and
not Words and Forms and Its Relevance to the Nomination
Concept and Practice in the Administration of a Muslims Estate.
Australian Journal of Basic and Applied Sciences, 6(11), 153-159.
Retrieved from
3. http://irep.iium.edu.my/28902/1/Is_aNominee.pdf