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Al-Majallah al-Ahkam al-‘Adaliyyah
Book 12: Settlement and Release.
Introduction.
Terms of Islamic Jurisprudence.
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A settlement is a contract concluded by offer and acceptance, and
consists of settling a dispute by mutual consent.
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A person making a settlement is called a settlor.
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The price of settlement is called the consideration.
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The subject matter of the settlement is the matter in dispute.
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A settlement is divided into three parts: The first part consists of a
settlement by way of admission, that is, a settlement brought about by
the admission of the defendant. The second part consists of a settlement
by way of denial of the defendant. The third part consists of a settlement
by way of silence, that is, a settlement brought about by the silence of
the defendant consequent upon the absence of any admission or denial.
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Release consists of two parts: The first part consists of release
by way of renunciation of a right. The second consists of release by admission
of payment. Release by way of renunciation occurs where one person releases
another person by relinquishing the whole of the claims he has against
such person, or by subtracting or reducing a certain number of them. It
is this form of release which is dealt with in this book. Release by admission
of payment is in the nature of an admission and consists of the confession
by one person that he has received what was due to him from another person.
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A special release is a release of a person from an action instituted
in respect to a claim relating to some particular matter, such as a house,
or farm, or some other matter.
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A general release is a release of a person from all actions.
Chapter 1: Conclusion of a Contract of Settlement and Release.
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A person making a settlement must be of sound mind. He need not have arrived
at the age of puberty. Consequently, a settlement made by a lunatic, or
an imbecile, or a minor of imperfect understanding is always invalid. A
settlement made by a minor who has been authorised by his tutor is valid,
provided that the settlement does not result in a clear loss. Thus, if
a person brings an action against a minor who has been authorised, and
such minor makes an admission thereto, the result is a valid settlement
by way of admission. A minor who has been authorised may make a valid contract
of settlement to the effect that he will give time for the satisfaction
of his claim. If such minor agrees to a settlement in respect to part of
his claim and is in possession of evidence to support the same, such settlement
is invalid; if he is not in possession of such evidence, however, and his
opponent is known to be ready to take an oath, such settlement is valid.
If he brings an action to recover property from another, and makes a settlement
in respect to the value of such claim, such settlement is valid. A settlement
by him for an amount considerably smaller than the value of the property
is invalid.
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A valid settlement of an action brought by a minor may be made by his tutor
provided that such settlement does not result in clear loss to the minor.
If there is a clear loss, the settlement is invalid. Consequently, if a
person brings an action for the recovery of a certain amount of money from
a minor and the father of such minor has made a settlement upon the terms
that payment shall be made from the property of the minor, such settlement
is valid, provided that the plaintiff is in possession of evidence in support
of his claim. If the plaintiff is not in possession of such evidence, the
settlement is invalid. Should money be due to a minor from another person
and the father make a settlement by deducting a part thereof, such settlement
is invalid if evidence exists in support of the sum due. If no such evidence
exists, however, and the person is known to be willing to take an oath,
the settlement is valid. A settlement made by a tutor in respect of a sum
due to the minor, in consideration of property equivalent to the value
of the claim, is valid. But if such consideration involves flagrant misrepresentation,
the settlement is invalid.
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A release by a minor, a lunatic or an imbecile is absolutely invalid.
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A power of attorney to carry on litigation does not imply a power of attorney
to make a settlement. Consequently, if a person is appointed agent to bring
an action against another person and such person settles the action without
obtaining the permission of his principal, such settlement is invalid.
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If any person appoints any other person his agent to settle an action and
the agent accordingly makes a settlement, the principal is bound by such
settlement. The agent is in no way responsible for any claim made in connection
therewith, unless he has made himself a guarantor therefor, in which case
he is liable. Moreover, if an agent makes a settlement by way of admission
to the effect that he will give property for property, and makes such settlement
in his own name, such agent becomes liable for any claim made in connection
therewith, that is to say, the amount covered by the settlement may be
recovered from the agent, the latter preserving the right of recourse against
his principal.
Examples: (1). An agent, acting in accordance with the term of his power
of attorney, makes a settlement for a certain amount of money. The principal
and not the agent will be obliged to pay such sum. But if an agent arranges
a settlement for a certain sum of money and he guarantees such sum, the
money in that case is recoverable from the agent, who has a right of recourse
against his principal.
(2). In the event of a settlement being made by way of admission upon the
terms that property shall be exchanged for property, the agent inducing
the other party to settle with him in respect to which the settlement is
made may be recovered from the agent, who has a right of recourse against
the principal, owing to the transaction being in the nature of a sale.
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If a third person who is not authorised thereunto, that is to say, who
acts without permission,intervenes in an action between two persons and
makes a settlement with one of them, such settlement is valid in the following
cases, but the unauthorised person is held to have acted on his own initiative:
if such person guarantees the sum covered by settlement; if he allows the
sum covered by the settlement to attach to his own property; if he allows
the sum covered by the settlement to attach to certain specific money or
goods present at the time; or if he makes a settlement for a certain sum
of money and delivers that sum of money. In the latter case, should such
party intervening fail to deliver the sum of money covered by the settlement,
such settlement is dependent upon the adoption of the transaction by the
defendant. The settlement is valid if adopted by the defendant, who must
then pay the sum covered by such settlement. If he does not do so, the
settlement is null and void, the action remaining undisturbed.
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