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Effect of the state of consciousness on transactions

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Effect of the state of consciousness on transactions

2021. január 23. - 17:03


In a previous article, entitled “Claiming responsibility”, I wrote about the consequences of our actions and the actions of others.

The following Hadith indicates who cannot be considered subject for liability:

Narrated Ali ibn AbuTalib:
The Prophet (peace be upon him) said: There are three (persons) whose actions are not recorded: a sleeper till he awakes, a boy till he reaches puberty, and a lunatic till he comes to reason.
Abu Dawud said: "and an old man who is feeble-minded."

Sahih (authentic) Al-Albani
Reference: Sunan Abi Dawud 4403

In this article, I will only analyze cases of mental disorder solely from a Sharia perspective. I mention only those cases where the disorder of the state of consciousness is not the consequence of artificial intervention, drugs, alcohol, etc.
Stupid, wacky, insane, foolish, etc. Our language abounds with expressions that describe mockingly, funnily, or seriously of such cases. Let's look at the classification of Sharia:Disorder of consciousness can be identified by not recognizing four factors: space, time, person, and state. So, the person does not know where he is, at what time he is, he does not identify properly himself and others, and he is not aware of his own condition, the surrounding situation, unable to adapt, to socialize.
If this situation occurs, the disease can be examined in three areas:

  1. Disorder of consciousness, Khalal ‘Aqli (عقلي خلل )
  2. Psychotic disorder Khalal Dzihani (ذهاني خلل )
  3. Disorder of Ego or Identity Khalal Nafsi (نفسي خلل )

From a legal point of view, all three cases limit or even make liability impossible.

Why does Sharia deal with these cases? Because it’s not just at the level of acts these issues come up. Many contracts and agreements are made between people. Our lives consist of a series of transactions. Trade, employment, marriage is all achieved in accordance with deals, agreements. Now let’s take the marriage as an example.
Before concluding a marriage contract, each party is obliged to draw the other's attention to any illness or health disorder, provided that he or she is aware of that. If the partner accepts him/her in that state, at the same time he/she has automatically admitted that this state of health cannot be the reason of divorce in the future. If one knows about his/her illness and does not communicate it, it can annul the marriage, i.e. Batil al-’Aqd (ُالعقد باطل .(The legal process of invalidation is in Arabic Faszkh al-’Aqd (ُالعقد فسخ .(So, I emphasize that the above is not a reason for divorce, but a reason to invalidate a marriage contract, if there is an intention to do so. If the parties can live with this state, it does not automatically cause divorce.
If, after marriage, any disorder of consciousness occurs that the parties were unaware of before, it may be a ground for annulment, but if the parties live together permanently in this situation, it will automatically record the marriage and the ground for annulment will cease. So far, I have deduced the effects of the change in the state of consciousness on transactions within the framework of a marriage contract. A similar logic applies to other agreements.

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