Ikhtilal (disruption or defect in acts, contracts and consent)

Ikhtilal comes from the root of defect: in the lexicon, a weakness or corruption in an opinion or an affair, whether sensory, as a crack in a wall, or moral. The technical sense keeps this meaning: the intrusion of weakness or deficiency into a thing or an affair. Jurists use it for disorder of reason (a dementia that mixes a speaker's words), for a defect of worship or contract by a missing condition or pillar, for a defect of consent by coercion or the splitting of a deal, and for a narrator's defective precision when his reports contradict trustworthy transmitters. ¹

Ikhlal is the act of causing a defect, and ikhtilal is its effect; the breach of a covenant or contract is the failure to fulfil it, and an act that opposes public order or morals is one that contradicts them. ² Ikhtilal is wider than corruption (fasad) and invalidity (butlan). It includes the lack of complements whose absence causes neither, such as forgetting to remove an impurity before prayer, a pilgrim's omission of the night at Mina, or failing to call witnesses to a sale. It also includes acts contrary to perfection, such as a slight movement in prayer, or concluding a sale after the Friday call according to those who do not void it for that reason; the worship or act stays valid but loses some of its perfection. ²

The jurists treat ikhtilal in many places. Al-Shatibi divided legal obligations into necessities, needs and embellishments, and set five rules for how the defect of one affects the others: the necessity is the root of the rest; defect in a necessity entails defect in both others absolutely; defect in both others does not entail defect in the necessity; defect in an embellishment or a need may in some way entail defect in a necessity; and all three must be preserved. ²

A defect in worship may lie in omitting a condition, pillar, obligation or recommended act, or in committing a forbidden or disliked act. It may happen deliberately, in error or by forgetfulness; some of it leads to the nullity or corruption of the worship, and what was omitted can sometimes be made good by prostration of forgetfulness, a ransom, or a make-up. ² The details are given under the entries on making good, invalidity, forgetfulness, ransom and corruption. ²

A defect in a pillar of a contract prevents its formation: the sale of a child who cannot discern, or of a madman, and their purchase, are void. ² A defect in a non-pillar, in an external attribute such as an unknown object or a defect in the price, does not cause invalidity but may cause corruption, according to the Hanafis. ² Execution may also be disturbed by an event that prevents the contract from being carried out as agreed, such as the splitting of a deal when part of the object is destroyed or claimed by another. This defects the other party's consent and gives an option. ³ Likewise, a party's consent is defective when the object or a specified price has a fault, and an option is granted to repair it. Al-Kasani said: since soundness is desired by the buyer and was not obtained, his consent is defective; consent is a condition of the sale's validity, so its absence prevents validity and its defect gives an option, the rule being established to the extent the evidence allows. ³ For the rules of the option, see the entry on «option». ³