The Effects of Mutatis in Contracts and Unilateral Legal Acts and the Evidence for the Validity or Invalidity of a Mutatis Sale

Abstract

The Mutatis transaction is one of the important and essential jurisprudential issues that is common among people and remains a subject of concern in human society. Familiarity with it and adherence to its jurisprudential rules is a step towards improving the economic structure of society. A sale may be carried out by employing the sale formula and verbalizing the offer and acceptance, where the seller declares the offer with the phrase "I sold" (ba'tu), and the buyer declares their acceptance using the phrase "I accept" (qabiltu) or similar expressions. However, it is also possible for both parties, despite being able to use the aforementioned formula, to engage in the exchange of goods without verbally articulating the terms. This latter form is called Mutatis, and in this sale, as in a verbal sale, "the transfer of ownership of the object in exchange for a known consideration takes place." As a result, the above definition encompasses both verbal and Mutatis sales. Martyr Thani (Shahid Thani) states in Masaalik that any transaction that does not have a specific formula, whether the mutual consent is derived from an action or verbal expression, will be considered a verbal contract. The opinion rejecting the validity of this type of sale had many proponents among early Imami jurists, but over time, this view has diminished to the point where today, it is difficult to find its supporters. Those advocating for the validity and conclusion of a Mutatis sale base their argument on sources such as the Qur'an, Sunnah, consensus (ijma), and the rule of lifting hardship (qa‘idah rafa‘ al-haraj). Today, few jurists reject the validity of Mutatis in exchange contracts. Legally, there is no difference in the manner of declaring intent, whether by words or non-verbal expressions of offer and acceptance. In contrast to the discussion of Mutatis in exchange contracts, this topic remains contentious in marriage contracts. Martyr Thani, along with most jurists, does not consider Mutatis to be valid in marriage contracts, and there is consensus on this matter. The Civil Code, influenced by the prevailing juristic opinion, also requires verbal offer and acceptance in marriage contracts.