Section Two
Mutual Agreement (As-solh)
solh is: an agreement between two parties to give ownership of an asset or benefit, cancel a debt or right, with or without compensation, with or without dispute. According to this definition, it has the effect of exchange (mo‘āwadah) contracts in transferring the ownership from one party to the other, even the effect of relieving responsibility that includes giving ownership of what is owed by the other to them; however, its distinctive feature is that it includes all of them in one form, and can be an alternative to each one of them, without abiding by their conditions and restraints. This is because the owner ‘sells’, ‘rents’, ‘makes a will’, ‘gives as gift’, ‘loans’, ‘relieves the other from their obligations’ and ‘cancels’ the right he has with them, doing all this in the solh form and contract and with more freedom in areas of mutual agreement and satisfaction. Regarding its particularities, here are the rulings:
1065. solh is a kind of contract that is independent by itself, not dependent in its rulings and conditions on other contracts and declarations, although it may have their same effect. Thus, a solh on giving ownership of an asset in return for compensation is not a sale, so not all choices (khiyār) that are possible in a sale are applicable here, although some are applicable; also, handing over before leaving the contracting meeting is not a condition if the two exchanged assets are money; and although a solh will see giving ownership of an asset for free, handing over the asset is conditional, as is the case in a gift (hibah); and so on.
1066. The solh contract – as any other contract – requires proposal and acceptance even in things that have the effect of relieving obligations, so if someone who has a debt owed to him by someone and he relieves him of it, this is a declaration (‘īqā‘) that does not need acceptance from the other party; however if he establishes this relief from the debt without compensation, in solh, the other party must accept, otherwise it is not a solh. The proposal and acceptance are secured with any wording suitable, although the word ‘sālahtok’ is the best to give the meaning of what is intended. Mo’ātāt (handling or pursuing upon a request) is also valid in it.
1067. The conditions of the two parties establishing a mutual agreement (solh) are reaching the Islamic legal age, sanity, free will and intention. Also, if the agreement requires disposal of a person's assets, he must not be indicted for unreasonable conduct (safah) or bankruptcy.
1068. A mutual agreement is valid when made by a fodūli (on behalf of someone else but without their consent) and takes effect after the acceptance of the owner, even if it relates to cancelling a debt or right with the consequences of relieving him from the obligation and cancellation (of the right or debt). This is despite the fact that a relief from an obligation that is independent of a solh – a cancellation as well – if established by a fodūli, will have no effect even after the acceptance of the right owner, but a new declaration from the owner of the right, his proxy or guardian must be established.
1069. A mutual agreement contract is binding in itself even if involving no compensation and its effect is one of a gift or loan. Therefore, it is not invalidated except in the following situations:
First: If the two mutually agreeing parties agree on invalidation, so one party relieves the other through the agreed invalidation (see no. 1032-5.)
Second: If one of them – or both – imposes on himself for the other the right of invalidation, which is known in a sale as the ‘condition choice’.
Third: If one of them imposes conditions on the other, one of which is handing over the asset that is mutually agreed on in a certain time and the other party fails to meet the condition, which is called in a sale ‘choice relating to failure in the conditions’.
Fourth: If he delays handing over the asset – involved as a compensation or something that is compensated for – more than is normally accepted, in this case the one who has the right can choose to invalidate the mutual agreement, which is similar to the ‘delay choice’ in a sale but its rulings do not apply here except on this point only.
Fifth: If the asset handed over – involved as a compensation or something that is compensated for – fails to have the specifications that it had when the recipient saw it or when it was described to him, which is known n a sale as ‘choice relating to a failure of description’ – its application here is the same as its application there.
Sixth: If a defect appears in the asset – involved as a compensation or something that is compensated for – but it is not possible to give a clear-cut ruling as to confirming a right to the owner of the defective asset to claim the difference between its value when not defective and its value when defective.
Neither the ‘choice relating to animals', nor the ‘choice during the contracting meeting’ apply in solh; nor does the ‘choice relating to unfairness’ if the solh is for solving a dispute; however in circumstances other than solving a dispute, its conferment does not enable a clear-cut ruling.
1070. It is allowed to establish a mutual agreement in any situation and on any matter, especially in matters that are not clear and in situations of dispute, provided that this does not lead to making a forbidden thing allowed or to abiding by things that it is not valid to abide by, in parts and conditions of actions, both in doing or abstention from doing, as was explained when talking about conditions in the section on sale (see no. 1015.)
Based on this, it is valid to make solh with compensation on an asset, benefit, debt or right, and with an asset, benefit, debt or right – which are sixteen situations resulting from multiplying four by four; if we add one situation when the solh on these four is without compensation, the situations become twenty, all valid.
1071. Just as interest is not allowed in a sale transactions in the two precious metals (gold and silver) or things that are measured by weight or by measure(ing vessel), as detailed above, it is not allowed to involve interest in a solh transaction as well. So, if each party has an asset at the other's disposal or owed by him, and one of them was worth more than the other, and they were either measured by weight or by measure(ing vessel) or one of the two monies, establishing a mutual agreement through exchange of one with another commodity of similar type is not allowed, even when it is probable that there is an excess of one of them over the other, as an obligatory precaution. That said, it is allowed – in such situations – to establish a mutual agreement through giving as a gift or through each of them relieving what is at the other’s disposal, provided that the other gives it to him as a gift or relieves him of what is at his disposal.
1072. It is not conditional, in solh, to know the asset used for establishing it; so if the asset of one of the two parties gets mixed with the assets of the other without knowing the amount of each of them, they are allowed to mutually agree on becoming partners in it either equally or otherwise; it is also allowed for one of them to mutually agree with the other using a specified external asset for his asset the amount of which is unknown, regardless of whether it is possible to distinguish between the two assets or not.
1073. It is clear that the most important situations of solh is disputes, for which - instead of the two parties resorting to courts - they resort to mutual satisfaction by solving the dispute in a certain way that they agree on. When solh is established between the disputing parties, the right of the claimant to resort to legal proceedings is cancelled, and the oath on the defendant is also cancelled, with the claimant losing the right to renew his claim and go to the court in the mutually agreed on matter. However, the mutual agreement – although solved the dispute – does not see a real relief of the obligation, so if the defendant was unjust to the claimant since he knew that he deserved his right, his obligation will not be relieved with that mutual agreement until he can be sure of the absolute satisfaction of the owner of the right as result of the agreement, even if he still knows that he still has something with the other party; the same ruling applies in the situation where the claimant is the liar.
1074. If one party of the mutual agreement imposes a condition on the other to entail (establish as waqf) the money used as solh for a certain beneficiary that is related to the first party himself, or to others, or to a public organisation, during the life of the person or after his death, the condition is valid and binding.