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Infisakh (the dissolution of a contract by itself, by the parties, or by a supervening cause)

الانفساخ

Infisakh is lexically the reflexive of fasakh, meaning undoing and passing away. For the jurists it is the dissolution of a contract either of itself or by the will of the parties or one of them. 1 Fasakh is undoing the tie by the will of one or both parties or by a judge; infisakh may be its result or the result of a cause beyond the parties' will. 23 A continuing contract such as a hire dissolves when its object perishes, but an immediate contract does not dissolve after receipt. 45 The Hanafis hold a hire dissolved by the death of a party who made it for himself; the majority hold it not dissolved. 67 Non-binding contracts such as loan, agency and partnership are generally dissolved by the death or madness of a party. 789 A sale is dissolved by the claim of a third party or by usurpation in some schools. 1011 A contract before dissolution exists and has effect, whereas for the Hanafis a void contract has no existence at all. 12 A continuing contract is dissolved from that moment, an immediate one is undone from its origin. 13

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Definition

Infisakh is lexically the reflexive of fasakh, meaning undoing and passing away. For the jurists it is the dissolution of a contract either of itself or by the will of the parties or one of them. 1

Related terms

  • Fasakh: undoing the tie of a contract by the will of one party or both, or by a judge. 2
  • Iqala: rescinding a contract by the consent of both parties, a voluntary cause of dissolution for binding contracts. 3
  • Intiha': reaching the end of a contract, such as the end of a hire term or the death of a spouse. 12
  • Butlan and fasad: for the Hanafis a void contract is one not lawful in origin or in attribute, and an invalid one is lawful in origin but not in attribute. 122

Causes

  • Voluntary: fasakh, iqala, a judge's decision, and excuses. 23
  • Involuntary: the perishing of the object, the death of a party, a change of capacity, a third party's claim (istihqaq), usurpation, and impossibility of performing the contract. 41011

Perishing of the object

  • Immediate contracts such as an outright sale, settlement or gift are not dissolved by the perishing of the object after receipt. Before receipt the views differ: the Malikis hold a sale of measured goods dissolved, while the Hanafis and Shafi'is hold a sale dissolved when the object perishes before receipt. 45
  • Continuing contracts such as hire, loan and agency are dissolved when the object perishes, whether before or after receipt, and only for the future period. 5

Death of a party

  • Death does not affect immediate contracts once the transfer is complete; a marriage ends with death by agreement. 6
  • Hire: the majority hold that it is not dissolved by the death of a party; the Hanafis hold it dissolved if the party contracted for himself, since the benefit comes into being little by little. 67
  • Non-binding contracts such as loan, agency, partnership and deposit are generally dissolved by the death of a party. 78
  • A surety contract is not dissolved by the death of the surety or the principal; a pledge is not dissolved by the death of either party after delivery. 89

Change of capacity

  • Madness, unconsciousness and apostasy dissolve non-binding contracts such as partnership, agency, deposit and loan, by the majority. 914
  • Apostasy of a spouse dissolves the marriage by the agreement of the jurists, on the Qur'anic text in sura al-Mumtahana (60:10); the detail differs before and after consummation. 14

Istihqaq and usurpation

  • Istihqaq is the showing that a thing is the right of another than the seller. For the Hanafis it does not of itself dissolve the sale but suspends it on the consent of the claimant; the Malikis, Shafi'is and Hanbalis hold the sale dissolved. 10
  • Usurpation of a leased thing: the Hanafis hold the hire dissolved, in the preferred view; the Malikis treat it as the destruction of the object; the Shafi'is and Hanbalis give the hirer an option to dissolve. 1011

Partial dissolution

When the dissolution reaches part of the object, it may reach the whole; this is the question of dividing a deal (tafriq al-safqa), on which the views differ. 1115

Effects

  • An immediate contract is undone from its origin, and a continuing one from the moment of dissolution. 13
  • If the object is unchanged it returns to its owner; if it has changed by increase or decrease, the rules differ. 1316
  • A loss without fault or neglect falls on the owner, and a loss caused by a party falls on that party; after dissolution the object is held as a trust by the party who is not its owner. 16

People and things also explored

Ahliyya (legal capacity: to have rights and duties, and to act; its stages from the womb to full maturity, and what impairs it)· Democracy and the Sharia — compatibility and conflict· Fatwa on the satellite channels — its benefit and harm· Secularism and Islam — conflict or concord· Stoning (rajm) as a penalty for zina· Allusion to a proposal during the waiting period· Aman (safe-conduct granted to enemies in war)· Amana (trust, deposit and what is entrusted)

Sources

  1. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3520
  2. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3522
  3. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3523
  4. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3524
  5. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3525
  6. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3526
  7. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3527
  8. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3528
  9. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3529
  10. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3531
  11. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3532
  12. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3521
  13. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3534
  14. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3530
  15. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3533
  16. al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.3535
Cite this page

islam.museum contributors. “Infisakh (the dissolution of a contract by itself, by the parties, or by a supervening cause)”. islam.museum, https://islam.museum/en/concept/infisakh/. CC BY-SA 4.0. Last updated 2026-10-23.

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Ideas

Beliefs, concepts, sciences and schools, explained in plain words. Related

Ahliyya (legal capacity: to have rights and duties, and to act; its stages from the womb to full maturity, and what impairs it)

Ahliyya is lexically suitability, and it is of two kinds: capacity to have rights and duties, the capacity of liability; and capacity to act, that is to perform acts recognised by the law. Its bearer passes through the stages of the foetus, childhood, discernment, puberty and maturity. Liability is complete from birth and incomplete for the foetus; the capacity to act is partial at discernment and full with puberty and reason. It is affected by heavenly impediments such as madness, imbecility, sleep, fainting, illness, slavery, menstruation, childbirth and death, and by acquired ones such as ignorance, drunkenness, jest, folly, travel, error and coercion.