Jahalah/ al-jahalah (جهالة/ الجهالة) is the lack of knowledge about the specifics of an object, event, or action, in spite of knowledge about its occurrence. For example, from a Hanafi perspective, if the object of sale or price (thaman) is associated with major ignorance, leading to dispute (munaza’ah) between the parties to the contract, then the sale is defective (ba’i fasid). In general, the terms “gharar” and “jahalah” are often used by scholars to define uncertainty in commutative contracts.
Gharar/ al-gharar (غرر/ الغرر) is an element of uncertainty or ambiguity, whether insignificant or excessive, in any sale contract or business with regard to its subject matter (underlying) or the contract itself (construction or wording). Gharar related to subject matter may arise from the price (thaman) or the item being exchanged (commodity, asset, etc). This type of gharar results from asymmetry of information available to each party, or from ignorance of one party of the whereabouts of the underlying.
The main differences between jahalah and gharar are illustrated below:
| Jahalah | Gharar | |
| Nature | Specific. That is, jahalah is part / facet/ cause of gharar. Not every jahalah is gharar. |
Wider. It also includes jahalah. Every gharar is jahalah. |
| Intention | Not intended in a transaction/ contract. | Intended or probable in a transaction/ contract. |
| Significance | Every jahalah that leads to a defective sale (ba’i fasid) is considered gharar. |
Excessive gharar (major gharar) is prohibited/ impermissible. Slight gharar can be overlooked. |
| Exceptions | Not applicable. | Exceptions to sales associated with gharar (ba’i al-gharar) are anything ancillary to the contract, but without it the contract will be invalid. |
Comments