Full Compilation Qawaid Fiqhiyyah

Qawa‘id al-Fiqhiyyah [ISF 2102]

 Introduction to Qawa‘id al-Fiqhiyyah  5 Major Legal Maxims  5 Main Legal Maxims Relating to Contract

Course Outline

 3 Important Maxims Dealing with Profit & Liability  3 Essential Maxims Dealing with People’s Rights  6 Maxims Dealing with other Forms of Mu‘amalat

INTRODUCTION TO QAWA‘ID ALFIQHIYYAH

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Definition • Qawaid is plural of qa’ada, means base, foundation, principles • Al-fiqhiyyah is plural of faqaha, means proper understanding of what is intended • Qawaid al-fiqhiyyah are general rules which can be applied in various cases that come under common rulings

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Definition

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Characteristics • In form of short epithetical statements • Derived from the detailed reading of the rules of fiqh on various areas • General in nature • Actual wordings taken from AlQuran and Sunnah

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Characteristics

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Importance • To know how previous scholars solved problems and formed general rules • To solve new problems • To promote Islam is comprehensive religion

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Importance

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Related disciplines • Qawaid usuliyyah  Deals with sources of Islamic Law with their interpretation for deriving law  How to recognize prohibition

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Qawaid Usuliyyah

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Related disciplines • Dawabit fiqhiyyah  Restricted to one particular field  For example Imam Malik said “If something does not make your clothing impure, it will not make the water impure”

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Dawabit Fiqhiyyah

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Related disciplines • Al-Ashbah wa al-Naza-ir  From letter that Caliph Umar alKhattab addressed to a judge, Abu Musa al-Ash‘ari of Basrah  As-Subkis  To signify that something is very similar to something else  Example: Private authority is stronger than public authority

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Al- Ashbah wa Al-Naza-i

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Types • Which taken from a particular text of AlQuran and Sunnah  masyaqqah tajlib taysir, hardship begets facility  umuru maqasidiha, Acts are judged by their goals and purposes  dhararu yuzal, harm must be eliminated

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• Which are formulated by jurists  yakin la yazilu bi syakk, certainty is not to be overruled by doubt  dar al mafasid awla min jalb al manafi, Harm prevention should be given the priority than promoting the benefit Types

HISTORY

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HISTORICAL DEVELOPMENT

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Origin and Formation

Growth and Consolidation and Articulation Systemization

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Historical Development of the Discipline

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Origin and Formation

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Start – 399 AH l Emergence of qawa'id during the lifetime of Prophet (PBUH) l Quranic verses and the Prophetic traditions are the essential source from which legal rulings are deduced l Qawa'id developed after prophet's (PBUH) demise. l

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Historical Development of the Discipline

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Origin and Formation

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Among the earliest jurists who developed most of the Fiqh maxims are the jurists of the Hanafi school l Earliest compilation of maxims was written by Abu al-Hassan al-Karkhi (334AH) and Sufyan ibn Tahir al-Dabbas l Imam al-Dabbas compiled 17 general axioms, then al Karkhi (340AH) adopted some and compiled up to 37. l

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Historical Development of the Discipline

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Growth and Articulation

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400 – 1100 AH l Imam al-Dabusi Abd Allah b. Umar Zayd al-Hanafi (430AH) composed his book Ta'sis al-nazr, continuing alKarkhi's work on jurisprudential guidelines specifically on legal axioms. l Amongst the pioneering qawa'id works, also considered the first work on comparative law l

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Historical Development of the Discipl

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Growth and Articulation

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These are some famous texts on legal principles: l Al-usul (340AH) by Abu Hasan al-Karkhi l Al- Ashbab wal-naza'ir (430AH) by Zayn al-din Ibn Nujam l Majallat al-ahkam al-'adaliyya by Hanafi Ottoman scholars l

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Consolidation and Systemization

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1200 AH - onwards l At first the jurisprudential maxims was highly dispersed and embedded among other legal arts such as legal-theoretical principles and hypothetical problems. l Ottoman empire scholars developed a careful process by which they selected and ordered the statutes in the most concise expression l This codification known as mejelle became like a legal encyclopedia of practical rulings. l

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Historical Development of the Discipline

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Hanafi Mazhab

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Usul Al-karkhi written by Abu Al-Hassan AlKarkhi from Iraq (340 AH). Each Qa'idah begins with a word “Al-Asl (in principal) and includes 36 Qa'idah l Ta'sis An-Nazar was written by Abu Zaid AdDabusy (430 AH) from ad-Dabusiyyah and comprised 68 Qa'idah l Al-Ashbah Wan-Naza'ir was written by Ibn Nujaim (970 AH) from Egypt. This book includes 25 Qaidah l

Introduction to Qawa‘id al-Fiqhiyyah

Qawa'id Fiqhiyyah in Each Mazhab

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Maliki Mazhab

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Usul Al-Futiya fi Al-Fiqh was written by Imam Muhammad Ibn Harith Ibn Asad Al-Khushani Anwar Al-Boruq fi Anwa' Al-Furuq includes 548 Qa'idah by Imam Abu AlAbbas Ahmad Ibn Abul-'Alla Idris Ibn Abdur- Rahman or Al-Qarafi (684 AH) from Egypt l

Introduction to Qawa‘id al-Fiqhiyyah

Qawa'id Fiqhiyyah in Each Mazhab

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Shafi'iy Mazhab

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Qawa'id Al-Ahkam fi Masalih Al-Anam by Imam Izz-ud-Din Ibn 'Abd-us-Salam (660 AH) l Al-Ashbah Wan-Naza'ir by Imam AbdurRahman Ibn Abu Bakr Ibn Muhammad AS-Seyuti (911 AH) l

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Qawa'id Fiqhiyyah in Each Mazhab

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Hanbali Mazhab

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Al-Qawaid An-Nuraniyyah Al-Fiqhiyyah by Imam Ahmad Ibn Abdul Halim Ibn Abdus-Salam Ibn Abdullah Ibn Tiymiyyah l Taqrir Al-Qawa'id wa Tahrir Al-Fawa'id by Imam Abdur-Rahman Ibn Shihab Ibn Ahmad Ibn Abu Ahmad Rajab (795 AH). l

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Majallat al-Ahkam al-Adliyyah

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Introduced in 1286 AH,the discipline has reached its full mature stage and has become fully distinguished sort of science l The first codification of Islamic commercial law by the ottoman reform movement. l “the book of rules of justice” became the civil code of Ottoman Caliphate for 50 years and continued to be commercial law of many Arab countries such as Syria, Iraq, Kuwait and Jordan l

Introduction to Qawa‘id al-FiqhiyyahContemporary works on Qawa'id Fiqhiyyah

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Twentieth century works

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Emergence of Harakat Ihya' al-Turath al-Islami (movements for reviving the Islamic legacy). Main concern was to edit the manuscripts on different Islamic disciplines and publish them in printed form l These are some examples of academic works (Master or PhD theses) with each focuses on their field of research l Extracting Qawa'id from Traditional Fiqh Books – AlQawaid wal-Dawabit al-Mustakhlasah Min al-Tahrir lilImam Jamal al-Din al-Husayri (636 AH) by Ali alNadwi. PhD thesis published in Cairo in 1991. AlNadwi extracted the Qawa'id and dawabit and arranged them according to their legal theme l

Introduction to Qawa‘id al-Fiqhiyyah Contemporary works on Qawa'id Fiqhiyyah

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Twentieth century works

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Collecting and arranging Qawa'id in comprehensive Encyclopedia – Maws'at alQawa'id al-Fiqhiyyah by Muhammad Sidqi alBurnu consists of 12 volumes aranged alphabethically totaled to 4192 Qawa'id. It explains the Qa'idah in brief and a few of its applications. l Studying Specific Qawa'id – Al-Niyyah Waatharuha Fil-Ahkim al-Shar'iyyah by Salih alSadlan. The book is about the first of the five universal Qawa'id “al-umur ni-maqasidiha” (matters are judged in light of the intention behind them) l

Introduction to Qawa‘id al-Fiqhiyyah Contemporary works on Qawa'id Fiqhiyyah

5 MAJOR LEGAL MAXIMS

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1ST MAJOR LEGAL MAXIM :

‫ر‬ ‫د‬ ‫د‬ ‫ا هل وأرموورر دبهمهقاصدهها‬ MATTERS ARE DETERMINED BY TO INTENTIONS

Matters are determined by to intentions

Definition

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‫ المور بمقاصدها‬Matters are determined by to intentions • Al-Umur -Plural form of al-amr, which means, to command, being superior to or make a high order to do something. -It also gives the meaning of matter, affair, case, condition, status, and situation. • Al-maqasid -Plural form of al-maqsad, derived from verbal noun alqasd which means intent, aim, purpose

Matters are determined by to intentions

Translation of Arabic

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Meaning of the maxim  It has a wide and general sense

which encompasses everything that is done by the human being such as words and deeds.  Shariah rulings in human affairs and their dealings shall be according to their intention.

atters are determined by to intentions

Definition

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The Quran says: “In most of their secret talks there is no good: But if one exhorts to a deed of charity or justice or conciliation between men, (secrecy is permissible): To him who does this, seeking the good pleasure of God, We shall soon give a reward of the highest (value)” (al-Nisa;114) •

•

Hadith

“Actions are but by intention and every man shall have but that which he intended. Thus he whose migration was for Allah and His messenger, his migration was for Allah and His messenger, and he whose migration was to achieve some worldly benefit or to take some woman in marriage, his migration was for that for which he migrated” (Narrated by Umar ibn al-Khattab)

atters are determined by to intentions

Legal sources of the maxim

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Applications of Maxim in Fiqh: 1) Slaughtering animals for food and consumption

purposes. Animals could also be slaughtered for sacrificial purposes during pilgrimage (Hajj) and ‘Eid al-Adha

2) If a person kills another person intentionally, the

heirs of the victim have the right to demand the death penalty (qisas) if the killer is convicted, but if the crime is perpetrated unintentionally the punishment differs, in that case, blood money (diyah) must be paid.

atters are determined by to intentions

Application in Fiqh

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Application of Maxim in Islamic Banks:

For example, in a contract of lease the amount of rental is stipulated while in borrowing no rental is charged. If two persons conclude a contract apparently of borrowing but the borrower is charged a certain specific rental, the agreement would be regarded as a lease contract.

atters are determined by to intentions

Application in Islamic Ban

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Related Maxim: -Al-’ibrah fi al-’uqud li-al-maqasid wa-al-ma’ani la li-al-alfaz wa-al-mabani “The effect in contracts depends on the intention and meaning and not the words and phrases” •

•

•

The rule above means that any contracts refers to its meaning and purpose, not to words and forms or acceleration. The meaning of the rules is that the assumption lies in the “akad”, its meaning and purpose and not to forms and words. That means, in any valid contract in which there is a distinction between the intention and purpose of the covenant that is seen through words or what is remarked upon in the contract.

atters are determined by to intentions

Branches of the

2ND MAJOR LEGAL MAXIM :

‫ال ويهدقيورن هلا يهرزوورل‬ ‫د‬ ‫ك‬ ‫ش‬ ‫بال‬ ‫ه‬ ‫ك‬ ‫د‬ ‫ك‬ CERTAINTY IS NOT OVERRULED BY DOUBT

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‫ال وي هدقي ورن‬

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Certainty

The knowledge that a fact has either definitely occurred or not. No difference between an initial yaqin – permitted or prohibitive Rulings are made base on Example: • A coma person – cannot be judged alive or dead – initial yaqin: alive - Wealth distribution cannot be made -Initial yaqin can only be overruled if his death is proven

ertainty is not overcome by doubt

Meaning

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‫ال ك هش كدك‬

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Doubtfulness

• The temporary doubts that happen after the occurrence of yaqin. • The state of being hesitant between two matters that are opposite to each other / contradicting each other without being ableOne to oftarjih (choose) any one of them. two matters was tarjih through evidence

Al-Zann (Conjecture) An opinion or conclusion formed on the basis of incomplete information.

Ghalabat Al-Zann (The preponderance of the evidence) This state: Consideration of the Shari’ah when making rulings on most issues – supported by Shari’ah evidence.

ertainty is not overcome by doubt

Yaqin (Certainty) Meaning

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• Any Shari’ah ruling will not be lifted by mere doubt. The situation in which the person is uncertain about the occurrence of something or the possible occurrence of it. • Waswasah : vacillation - difficult situation that can be a habit in a person - face hardship in carrying all types of worshipping acts / Allah’s command

CERTAINT Y (Confirmed)

ertainty is not overcome by doubt

CERTAINTY

DOUB T

continued until the uncertainty is proven

Clear evidenc e

Meaning

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Legal sources:

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Yunus, 10:36

ertainty is not overcome by doubt

History

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2 Hadith

Abu Huraira reported: The Messenger of Allah (‫صلى الله عليه‬ ‫ )وسلم‬said: If any one of you has pain in his abdomen, but is doubtful whether or not anything has issued from him, he should not leave the mosque unless he hears a sound or perceives a smell. (Sahih Muslim).

ertainty is not overcome by doubt

History

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A person is proven indebted to another – uncertain about his repayment – the person remain indebted. A person sure that his cloth is impure (najis) – but not sure the najis spot – have to wash the whole cloth – his doubt (spot of najis) will not overrule the impurity of the cloth.

A knows that a particular subject matter belongs to B – C challenged the ownership – A can stand as a witness that the subject matter is B’s – even it is possible that the subject matter have been sold by B to C. A defect found in a piece of particular type of product when it was with the seller – sound same defect of the same type of product that was picked by a buyer when concluding the transaction – the buyer confused whether the one he picked same with the one spotted having defect at the seller – the buyer has no right to return the purchased product.

(Other similar case: whether the defect is pre-existing or not) ertainty is not overcome by doubt Application

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TAKAFUL Takaful participant paid the takaful contribution to a takaful agent - did not get any receipt The participant is liable for the payment if the takaful agent denies the payment or The participant is liable for the payment if the takaful agent resign or terminated from company

The takaful participant must insist on the receipt (as evidence) * In reality, this is a rare case – the regulators made strict regulations – to ensure protection

ertainty is not overcome by doubt

Application in Islamic Financ

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‫ال هوصرل دفي الرمهعاهملت أدلهباهحة‬

The default ruling in mu’amalah is permissibility.

• The use of paper money, cheques, bank drafts, telegraphic transfers, ATMs, e-banking etc. Permissible: encourages the circulation of wealth

• The use of accounting methods that do not contradict the contractual responsibilities of the various parties

ertainty is not overcome by doubt

Application in Islamic Bankin

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Other related maxims

‫ال هوصرل بههرارة ال ودذ كهمة‬

The norm (of Shari’ah) is that non-liability

• If a debtor & creditor argue about the amount of debt, the statement of the debtor will be accepted unless the creditor has shown evidence on the additional amount. • If there is disputes in terms of the inspections of the sales, the statement of the purchaser shall be accepted – the original status is the absence of inspection.

ertainty is not overcome by doubt

Application in Islamic Bankin

3RD MAJOR LEGAL MAXIM :

‫س‬ ‫ر‬ ‫ب‬ ‫ب التت رييسسييرر‬ ‫ل‬ ‫ج‬ ‫ت‬ ‫ة‬ ‫ق‬ ‫ش‬ ‫م‬ ‫ي‬ ‫ل‬ ‫ا‬ ‫ر‬ ‫ر‬ ‫ت‬ ‫ر‬ ‫ي‬ ‫ر‬ ‫ب‬ HARDSHIP BEGETS FACILITY

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‫المشقة تجلب‬ ‫التيسير‬ HARDSH IP ‫المشتقة‬

HARDSHIP BEGETS FACILITY

To be heavy/unbearab le Refer to legal excuses such as minority, illness etc

FACILITY ‫تيسير‬

To be easy Legal mitigation on account of hardship as an exception to the general rules

 Hardship begets facility by the relaxation of rules which are difficult to observe  Basic approach of Shari’ah – implementation of obligation/prohibition causes excessive hardship  Hardship becomes the cause for facilitation as the application of rules in certain circumstances cause difficulties to people.  OPTIONS – to relieve the difficulty and enforces ease during difficulty . Hardship begets facility Definition

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‫المشتقة تجلب‬ ‫التيسير‬

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HARDSHIP BEGETS FACILITY

Al-Ghazali said, “Everything that exceeds its limit changes into opposite”.  Thus, it becomes necessary to lighten the people’s burden and to disregard general rules in certain exceptional circumstances if their application were to result injury and hardship.

Hardship begets facility

Definition

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1) The hardship has to be real (haqiqiyah) and not imaginary. 2) The hardship must be above what a human is usually expected to bear. For example, someone can say that 5 daily prayers are a hardship but people are required to take this hardship as it is ordained in Shariah. So 5 daily prayers are what human should be able to bear according to Shariah.   3) It can not be that the Shariah has a goal in you suffering from that hardship.

4) the facility should not infringe the fundamental principles of Shari`ah – protecting Hardship begets facilityhuman rights, establishing

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Hardship begets facility Subject : Hardship

Ruling : Facility

General Application

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Al- Quran : “…Allah intends for you ease, and He does not want make things difficult for you…” (Al-Baqarah:185)

“… On no soul doth Allah place a burden greater than it can bear…” (AlBaqarah:286)

“…He did not make any difficulty for you regarding the religion (din of Islam)…” (al-Hajj:78)

Hardship begets facility

Origin of the maxim

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Sunnah : Abu Hurayrah narrated from the Prophet (s.a.w) “Religion is very easy and whoever overburdens himself in his religion will not be able to continue in that way. So you should not be extremist, but try to be near perfection and receive the good tidings that you will be rewarded and gain strength by worshipping in the mornings, the nights” Anas narrated from the Prophet (s.a.w) “Make things easy for the people and do not make it difficult for them and make them calm (with gad tidings) and do not repulse (them) Narrated by Bukhari and Muslim Aishah r.a said: “Whenever the Prophet (s.a.w) was given a choice between two things he chose the easier one unless it was a sin”

Hardship begets facility

Origin of the maxim

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Travelling • Muslim also gets the permission to defer obligatory fasting. • It is permissible to cancel the contract of ijarah due to travelling • When judges are not available, it is permissible to sell a property that belongs to travel companion who died during the journey. Sale proceeds is kept for his heirs

Sickness • Permission to defer obligatory fasting. • Can tayammum instead of wudu’. • Can sit or lying down during solat if unable to stand

Coercion • Person who is forced to eat haram food otherwise harm/injury will be inflicted on him that endanger his life is permissible to eat. • Person who is forced to say something Kufr, is permissible to say such thing as long as his faith is maintained in Islam.

Hardship begets facility

Type of hardship

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Forgetfulness • If the person commits something that will subject him to a punishment, his forgetfulness can be used to waive the punishment

Ignorance • Those who has share in the partnership property, didn’t know that his partner has sold that property – his right in that property cannot be dispelled. • If a person declares his Islam in a country – Islamic law is not implemented and complete knowledge of Islamic Shari’ah has not yet been conveyed to him- excused if he commits any divinely-prohibited matters not knowing about the prohibition.

Difficulty/Umum al-Balwa • Those who suffer the disease (unable to control the discharge of his urine), are excused to perform solat in unclean (najis) condition. • Permissible to perform solat if got soil on the cloth during rainy days.

Hardship begets facility

Type of hardship

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Deficiency / Al-Naqs • In the case of minor, insane person – they are not obliged to practice Islamic injunctions as much as matured sane person – if obliged, they would be in hardship • Women are not obliged to perform Jumaat prayer and Jihad.

Hardship begets facility

Type of hardship

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1) IJARAH If someone enters into a rental contract - travel for certain reasons, he is allowed to cancel the rental contract. Under a normal circumstance, a person is not allowed to cancel this type of contract unless it is agreed between the contracting parties beforehand. However, forcing a person to continue paying the rental when he is not occupying the premise, will amount to hardship, therefore the shariah is allowed the cancellation under specific circumstances in order to avoid hardship. 2) BAY’ AL SALAM A prompt payment for a commodity that the seller does not posses is permissible – producers who need finance for inputs. If finance is not forthcoming at the time of sowing, production will cease- harmful for entire community. Sale before possession only confined to Bay’ Al-Salam and cannot be used in other transaction

Hardship begets facility

Examples and applications of maxim in

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‫إتسع‬

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‫إذا ضاق المر‬

(idhā dāqa al-amr ittasa’a) “An opening must be found when a matter becomes very difficult” Example: A debtor who accedes to his obligation but is unable to pay must be given time- if this would enable him to clear the debt

(Ad-darurât tubîh al-mahzurât) “Necessity renders prohibited matters permissible“ Example: A person is allowed to consume prohibited food in order to survive under extreme situation provided that no other food is available.

Hardship begets facility

Related

4TH MAJOR LEGAL MAXIM :

‫ا هل وهضهررر يرهزا ورل‬ HARM MUST BE ELIMINATED

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Origins from Prophet Muhammad (s.a.w) sayings:

‫ضرررر رو ر‬ ‫ر‬ ""‫ضرررارر ‏‬ ‫ل ض‬ ‫ل ر‬ (Harm may neither be inflicted nor be reciprocated) Al-Hafiz Ibn ‘Abd al-Barr, The meaning of this hatidh is Sahih, al-usul. It was verified that the Prophet (s.a.w) said: “The Almighty Allah has ruled that a believer’s blood, property, and dignity are unlawful to anyone and a believer must also be thought good of. ” As, one of the pillars of Shariah, this legal maxim is the basis for prohibiting any harmful acts and arranging for any compensation and punishment for the results of harmful acts. Ibn al – Najjar said: “Rulings in the Islamic jurisprudence are set either to bring or ward off harm, therefore they include the protection of the five necessities which are religion, life, posterity , property and dignity.

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Definition

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Differences Dhirara

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Between

Dharar

&

Ibn ‘Abd al – Barr : ‘al – dhara’ is noun while ‘al – dhirar’ is verb Quoted by al – Khushani, ‘Dharar is what brings benefits to you, but harms the neighbour, but ‘Dhirar’ is what brings you no benefit but still harms your neighbour. Example : Car delivers the passenger to destination but also produce CO2 and polluting the environment, the car is ‘Dharar’ while, Cigarette does not gives any benefits to smokers also it is dangerous to other people. Cigarette is ‘Dhirar’.

By Al – Tu’fi in his explanation of Al – Nawawi Forthy Hadiths; ‘Dharar’ means causing harm to another person while ‘Dhirar’ is the respond of the harm from the causing person.

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Definition

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Exception to the Maxim Ibn Rajab “The Prophet (s.a.w) forbids al-Dharar and al-Dhirar to be unlawfully exercised. However, causing harm with a legal sanction is permitted.” Example : A person will be punished / exercised by Allah according to his crime / sin. Harming people under law (as punishment) to criminal is allowed, and the maxim is excepted. (ex: Qisas)

Application in Islamic Finance

In Islamic Finance industries, removing harm financially, can be done by establishing firm regulation of practice on the Industries. Malaysia as one the ‘tower’ in Islamic Finance practice applied this Maxim in such way by establishing Shariah Advisory Board and Shariah Advisory Committee. The role of the board also involves the reviewing and overseeing of all potential new product offerings. Given that shariah law is derived from studies of both the Qur’an and the Sunna, The Shariah boards in ensuring the conformity of the

institution’s offerings, boards contemporary Islamic scholars.

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include

acknowledged

experts,

such

as

Definition

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Duties and Responsibilities of Shariah Committee: 1) Responsibility and accountability 2) Advise to the Board and Bank including the Bank’s subsidiaries 3) Endorse Shariah policies and procedures 4) Endorse and validate relevant documentations i. the terms and conditions contained in the forms, contracts, agreements or other legal documentations used in executing the transactions; and ii. the product manual, marketing advertisements, sales illustrations and brochures used to describe the product. 5) Assess work carried out by Shariah review and Shariah audit (etc.) Takaful Muamalat.com.my In Islamic Finance contract, removing harm financially, can be done by the practice of Takaful. Takaful service is the alternative to conventional insurance as they are using Shariah principles, avoid involvement of usury, gambling, and minimize the elements of uncertainty. The service is design to cooperate with the participant and not to cheat them. It segregate the Participants of Takaful account and the shareholders' accounts. Also shares any surplus of the fund to the Participant.

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Definition

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Branches of the Maxim (9) 1. ‫الضرورات تبيح المحظورات‬ “Necessities render prohibited things permissible” In emergency situations people are allowed to undertake actions which are prohibited for them in normal situations as concern to the Islamic Law (Majallah al – Ahkam al – ‘Adliyyah) Example: unconsent seize of properties of insolvent person, who does not settle the debt, by Legal Authorities.

2. ‫الضرورة تقدر بقدر ها‬ “Necessity is determined by the extent thereof” Under court’s order to sale the assets of a negligent debtor to clear his liabilities, it should start with the movable assets if this would suffice to clear the debt, before selling his fixed assets. (Al-Sabuni, Al – Madkhal al – Fiqhi wa-Tarikh alTashri al –Islami).

3.‫الضطرار ل يبطل حق الغير‬ “Necessity does not invalidate the right of other” In case of leasing and farming has expired but it is yet to harvest, the contract shall continue until the harvest at the usual time and the lessor shall pay the rent, as the necessity of the lessor to the land, it doesnot invalidate the right of rental property

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4. ‫الضرر ل يز أ ل بمثله‬ “An injury cannot be removed by a similar injury” Majallah al-Ahkam al-A’dliyyah stipulated that, if a new defect appears in the sold object during buyers’ custody and afterward another defect appears, the buyer is not allowed to return the item due to age-old fault but entitled to compensation of flaw.

5.‫يتحمل الضرر الخاص لدفع العام‬ “To avoid public injury, a private injury may be endured” Application: A distributor/supplier shall not intermix their sales item to creditor for settling debt.

6 .‫الضرر الشد يزال بالضرر الخف‬ “A greater injury may be avoided by a lesser injury” In a combined business, if the major shareholder wants the higher position while it may harm the partner, the demand shall be responded, otherwise, his harm would be more and may affect the employees.

7 . ‫الضرر ل يكون قديما‬ “Harm cannot establish a predecent” Through lapse of time, Dharar shall not be justify by tolerance.

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8 . ‫درء المفاسد أولى من جلب المصالح‬ “Preventing harm is preferred over attracting benefit” Shariah would ban such an act that would bring benefits while at the same time causing harm to the world. Despite the benefit is valid. Example: Casino and tobacco businesses contribute huge amount of tax yearly to government, however the sector also corrupt the population and brings cancer. This kind of business is not supported by Islamic Finance sector.

9 . ‫ل عبرة للتوهم‬ “No reliance on mere imagination” Maxim is related to a matter of 'certainty and doubt'. Imagination or delusion lies at the lowest rank of doubt. The Majela,(2003:12) "To imagination without foundation on fact, no weight is give. If a man exit from a house, running, with knife full of blood in his hand, and later people came in and found a bleeding corpse, by evidence the man is suspected the killer. To eliminate harm decision is measured by evidence not imagination or theory.

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Definition

5TH MAJOR LEGAL MAXIM :

‫ه‬ ‫حك كههمةة‬ ‫م‬ ‫ة‬ ‫د‬ ‫عا‬ ‫و‬ ‫ل‬ ‫ا‬ ‫ر‬ ‫ه ه ر ه‬ CUSTOM IS AN ARBITER / CUSTOM IS A BASIS OF JUDGEMENT

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‫ة‬ ‫م ة‬ ‫م م‬ ‫( ال ل م‬al-’adah muhakkamah) ‫حك ك م‬ ‫عدادمةم م‬ ‘CUSTOMS IS AN ARBITER’ ‫‘(العدادة‬Adah) • •

A noun derived from the verb ‘ada/ya’udu, which means ‘to return, to come back’. ‘Adah used to represent custom because a custom is a practice that keeps come back.

‫(محكمة‬Muhakkamah) •

•

The passive participle of the verb hakkama/yuhakkimu which means ‘to choose someone or something as an arbitrator’ Its use in this maxim connotes the status of customs as reference for resolution of disputes .

Legal Maxims : Customs is An Arbiter

Definition- Arabic translatio

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Explanation of the Maxim •

The principle that customary usage is the determining factor basically means that the customs of the people are recognized and acknowledged by Islamic Law as long as certain conditions are met.

•

The custom- the practices of the people whether in their actions or sayings, regardless of whether they are the general practices of the people or the practices of certain groups.

•

Habit or custom in the eyes of the Shari’ah can be a basis for deriving Shari’ah rules pertaining to people’s behaviours.

Legal Maxims : Customs is An Arbiter

Definition

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The Definition and Difference between ‘Adah and ‘Urf •

If a person feels comfortable towards a particular action due to a certain motive and repeats that action, then the action will a habit (‘adah).

•

If others follow or imitate him/her in doing that action such that it becomes widespread among most people, then ‘urf is established.

•

‘Urf is in habit (‘adah) of a group of people.

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The General Types Of Customs

THE GENERAL CUSTOMS Widely spread all

• Widely spread all over the world • Can be timerelated: Widely spread throughout the years since during the time of Prophets’ companion or spread during a certain era • Can be placerelated Widely spread in all places or being practiced in whole country • Eg: practicing istisna’

THE SPECIFIC CUSTOMS • Specifically in certain country, place or among certain group of people • Example: • custom among traders on what is considered as a defect • custom in some countries of allowing price to be paid in installments or specific number of installments

Legal Maxims : Customs is An Arbiter

SHARIAHBASED CUSTOMS • Eg: prayer, zakat, hajj etc

Definition

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1. Al-Quran Allah S.W.T says in Surah Al-Baqarah verse 233 :

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“Mothers suckle their children for two whole years if they wish to complete the term, and the father shall bear the cost of their food and clothing in a fair manner. No one should be burdened with more than they can bear. (Surah Al-Baqarah: 233)

Legal Maxims : Customs is An Arbiter

Sources of the Maxims

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2. Hadith ‘Abd Allah ibn Mas’ud said:

‫رما ررآبه ال يبميسل سبمورن رحرسننا رفبهرو سعن يرد الل ترسه رحرسنن‬ “What the Muslims determine to be good is good with Allah”

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Application of the Maxim in Fiqh •

A person sold a good to another in Malaysia for deferred payment of one thousands without specifying the currency. On the settlement date, the buyer makes payment of one thousand Malaysian ringgits, but the seller insists that he meant USD1000. In this case, seller’s claim is rejected because the custom of Malaysia is to pay in ringgits, not dollars.

Legal Maxims : Customs is An Arbiter

Application in Fiqh

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Application of the Maxim in Islamic Finance •

•

•

Traditionally, sales took place face-to-face between a buyer and a seller. There was an offer and acceptance. The exchange of commodity, its payment and possession between two parties was physical and immediate. Nowadays, people are not necessarily to meet each other to buy goods. They can just click on a mouse to choose the good he wants and then providing the seller with his credit card information. After all the information has been verified and the card issuer has approved payment, the sale is concluded. The seller will receive his payment on his account after a few days and the buyer will receive his goods after some days by courier. These new practices are acceptable in Islam because they have standard practice.

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• Traditionally custom

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Seller

transaction

Buyer

1. Payment and exchange of commodity are made immediately.

• Modern Days custom

Seller

transaction

Buyer

1. Buyer and seller not need to see each other to make the transaction 2. Firstly, the buyer has to confirm what goods that he decides to buy. 3. Payment are made using credit card. After all the information has been verified and the card issuer has approved payment, the sale is concluded. 4. The seller will receive his payment on his account after a few days and the buyer will receive his goods after some days by courier.

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Related Maxims ‫( المعروف عرفا كالمشروط شرطا‬al-ma’ruf

‘urfan kal-mashrut

shartan) ‘A Matter recognized by custom is regarded as if stipulated by agreement’ Al-ma’ruf • Well known standard practice among people in their transaction. Al-mashrut • Something stipulated by one/both contracting practice in their contractual agreement to make contract enforceable Explanation of the Maxim It means that the customary practice is to be considered without the need of its stipulation in the contracts and dealings.

Legal Maxims : Customs is An Arbiter

Branches of the Maxim

5 MAIN LEGAL MAXIMS RELATING TO CONTRACT

1ST MAIN LEGAL MAXIMS RELATING TO CONTRACT

‫عون تههص كرودرده‬ ‫ا هل و ر‬ ‫عل هوى ال كهشويدء هفوررع ه‬ ‫حك ورم ه‬

JUDGMENT IS BASED ON KNOWLEDGE AND UNDERSTANDIN

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• Guiding critical thinking • Fiqh; Ijtihad • Exertion of effort to arrive at a considered judgment about the rule of the Shari’ah on a particular matter. • Two types; 1) Attempting to interpret Shari’ah texts. 2) Applying the rules contained in the texts to real cases.

Main Legal Maxims Relating to Contract Judgement is Based on Knowledge and understand

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A. Explanation of the Maxim

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•

‫حك ورم‬ ‫هال ر‬

• • •

‫ل ك هشويدء‬

Judgment, valuation, decision, opinion and verdict. To make a statement about anything is to deliver a kind of judgment on it. To relate one matter to another, either In affirmation or negation. Must be by jurist of human acts.

• What is possible to know or to make a statement about. • Tangible objects, people, and animals.

‫عون تههص كروره‬ ‫عهلي اهفوررع ه‬ ‫ه‬

Main Legal Maxims Relating to Contract Judgement is Based on Knowledge and understand

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A. Explanation of the Maxim

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‫هفوررع‬ ‫تههص كروره‬

• •

Branch Secondary or subsidiary matters.

• Picture, image and form.

• Attention to definitions and their implications is essential in determining whether a given rule is relevant to a particular act. • The concept of theft.

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B. Authority of the Maxim •

Quran



“And when there comes to them information about [public] security or fear, they spread it around. But if they had referred it back to the Messenger or to those of authority among them, then the ones who [can] draw correct conclusions from it would have known about it …”

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B. Authority of the Maxim •

Hadith A man from Yemen asked the Prophet PBUH about a drink called mizr, prepared from sorghum, which they drink in his land, Allah’s Messenger asked; “Does it intoxicant?” He said, “Yes” The messenger of Allah remarked, “Every intoxicant is forbidden”.

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C. Application of the Maxim in Fiqh

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•

Al-Ghazali applied this principle on passing judgment on the writings of Muslim adherents of Greek philosophy.

• When he read Muslim theologians, refutations of the ideas of philosophers, he perceived that they were attributing outlandish views to them that no one in his right mind would believe. • “Refuting a school of thought without understanding it and perceiving its true nature is like shooting in the dark” • “… no one can understand the flaws of the knowledge until he has reached the limits of that type of knowledge.”

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D. Application of the Maxim in Islamic Finance

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•

Determine whether the financing products of an Islamic bank are Shari’ah compliant, all the related contracts should be presented to the bank’s Shari’ah advisory board.

•

The Shari’ah advisory board must understand the product and thoroughly examine the associated legal documents prior to issuing a fatwa on it.

Main Legal Maxims Relating to Contract Judgement is Based on Knowledge and understand

2ND MAIN LEGAL MAXIMS RELATING TO CONTRACT

‫ل‬ ‫و‬ ‫ل‬ ‫ل‬ ‫ة‬ ‫ة‬ ‫ش‬ ‫ة‬ ‫صححةة‬ ‫ولال‬ ‫زو‬ ‫ولا‬ ‫ج‬ ‫ل‬ ‫طو لا‬ ‫ِط‬ ‫و‬ ‫ر‬ ‫ش‬ ‫ولال‬ ‫دو‬ ‫وِط‬ ‫ق‬ ‫ع‬ ‫ل‬ ‫ىو لا‬ ‫ف‬ ‫ِط‬ ‫لو‬ ‫ص‬ ‫ل‬ ‫وو و ص‬ ‫لاو ل‬ ‫ل ة ل و ةل‬ THE PRESUMPTION OF VALIDITY AND PERMISSIBILITY APPLIES TO ALL CONTRACTS AND CONDITIONS

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‫و‬ ‫ل‬ ‫ل‬ ‫ة‬ ‫ة‬ ‫ش‬ ‫ة‬ ‫صححةة‬ ‫ولال‬ ‫زو‬ ‫ولا‬ ‫ج‬ ‫ل‬ ‫طو لا‬ ‫ِط‬ ‫و‬ ‫ر‬ ‫ش‬ ‫ولال‬ ‫دو‬ ‫وِط‬ ‫ق‬ ‫ع‬ ‫ل‬ ‫ىو لا‬ ‫ف‬ ‫ِط‬ ‫لو‬ ‫ص‬ ‫ل‬ ‫وو و ص‬ ‫لا ل‬ ‫ل ة ل و ةل‬ The ‫و‬presumption ‫و‬of ‫و‬validity ‫و‬and ‫و‬permissibility ‫و‬applies ‫و‬to ‫و‬all ‫و‬contracts ‫و‬ and ‫و‬conditions

• Asl – Root, ‫و‬origin, ‫و‬foundation, ‫و‬basis – The ‫و‬original ‫و‬rule ‫و‬for ‫و‬something, ‫و‬one ‫و‬which ‫و‬could ‫و‬possibly ‫و‬be ‫و‬overridden ‫و‬by ‫و‬ countervailing ‫و‬evidence ‫و‬for ‫و‬specific ‫و‬cases – Civil ‫و‬law ‫“و –و‬presumption”

• ‘uqud ‫(و‬plural ‫و‬of ‫‘و‬aqd) – ‘aqada ‫و –و‬to ‫و‬connect ‫و‬or ‫و‬tie – ‘aqd ‫و –و‬a ‫و‬connection ‫و‬between ‫و‬two ‫و‬contracting ‫و‬parties ‫و‬that ‫و‬is ‫و‬established ‫و‬ by ‫و‬an ‫و‬offer ‫و‬and ‫و‬acceptance ‫و‬executed ‫و‬in ‫و‬accord ‫و‬with ‫و‬the ‫و‬Shari’ah

Maxims: The presumption of validity and permissibility applies to all contracts and conditio

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• Shurut ‫(و‬plural ‫و‬of ‫و‬shart) – A ‫و‬provision, ‫و‬condition, ‫و‬clause ‫و‬or ‫و‬stipulation – [a ‫و‬factor] ‫و‬whose ‫و‬absence ‫و‬requires ‫و‬the ‫و‬absence ‫و‬of ‫و‬a ‫و‬certain ‫و‬rule ‫و‬whereas ‫و‬ its ‫و‬presence ‫و‬does ‫و‬not, ‫و‬in ‫و‬and ‫و‬of ‫و‬itself, ‫و‬require ‫و‬the ‫و‬presence ‫و‬or ‫و‬absence ‫و‬ of ‫و‬that ‫و‬rule

• Jawaz – To ‫و‬travel ‫و‬or ‫و‬cross ‫و‬a ‫و‬location, ‫و‬to ‫و‬pass ‫و‬by ‫و‬or ‫و‬through – Acceptability, ‫و‬permissibility – The ‫و‬basic ‫و‬rule ‫و‬for ‫و‬all ‫و‬things ‫و‬created ‫و‬by ‫و‬Allah ‫و‬is ‫و‬that ‫و‬they ‫و‬are ‫و‬halal ‫و‬ except ‫و‬for ‫و‬that ‫و‬which ‫و‬has ‫و‬been ‫و‬explicitly ‫و‬prohibited ‫و‬in ‫و‬the ‫و‬authentic ‫و‬ texts

• Sihhah – An ‫و‬act ‫و‬which ‫و‬is ‫و‬accordance ‫و‬with ‫و‬the ‫و‬Shari’ah

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•

“It ‫و‬is ‫و‬He ‫و‬who ‫و‬created ‫و‬all ‫و‬that ‫و‬is ‫و‬on ‫و‬the ‫و‬earth ‫و‬for ‫و‬you” ‫(و‬Surah ‫و‬al-Baqarah ‫و‬ verse ‫و‬29)

•

“God ‫و‬has ‫و‬already ‫و‬fully ‫و‬explained ‫و‬what ‫و‬He ‫و‬has ‫و‬forbidden ‫و‬you” ‫(و‬Surah ‫و‬alAn’am ‫و‬verse ‫و‬119)

Maxims: The presumption of validity and permissibility applies to all contracts and conditio

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• Hadith

“ ‫و‬The ‫و‬halal ‫و‬is ‫و‬what ‫و‬Allah ‫و‬has ‫و‬made ‫و‬lawful ‫و‬in ‫و‬His ‫و‬Book, ‫و‬ and ‫و‬the ‫و‬haram ‫و‬is ‫و‬what ‫و‬Allah ‫و‬has ‫و‬prohibited ‫و‬in ‫و‬His ‫و‬Book; ‫و‬ and ‫و‬whatever ‫و‬He ‫و‬has ‫و‬remained ‫و‬silent ‫و‬about ‫و‬is ‫و‬part ‫و‬of ‫و‬ what ‫و‬He ‫و‬has ‫و‬excused.”

Maxims: The presumption of validity and permissibility applies to all contracts and conditio

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• Application of the Maxim in Fiqh • Imam ‫و‬Shafi’i ‫و‬  General ‫و‬permissibility ‫و‬of ‫و‬sales ‫و‬in ‫و‬his ‫و‬rulings ‫و‬that ‫و‬it ‫و‬is ‫و‬permissible ‫و‬for ‫و‬a ‫و‬ man ‫و‬to ‫و‬buy ‫و‬a ‫و‬good ‫و‬on ‫و‬deferred ‫و‬payment ‫و‬and ‫و‬then ‫و‬sell ‫و‬it ‫و‬back ‫و‬to ‫و‬the ‫و‬ original ‫و‬seller ‫و‬for ‫و‬a ‫و‬spot ‫و‬payment ‫و‬less ‫و‬than ‫و‬the ‫و‬delayed ‫و‬payment. ‫و‬As ‫و‬ long ‫و‬as ‫و‬the ‫و‬two ‫و‬sales ‫و‬are ‫و‬not ‫و‬linked ‫و‬as ‫و‬separate, ‫و‬reciprocal ‫و‬transactions ‫و‬ he ‫و‬saw ‫و‬no ‫و‬reason ‫و‬to ‫و‬suspect ‫و‬the ‫و‬contracting ‫و‬party’s ‫و‬intention. ‫و‬

Maxims: The presumption of validity and permissibility applies to all contracts and conditio

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• Application of the Maxim in Fiqh • Imam ‫و‬Ahmad  If ‫و‬a ‫و‬man ‫و‬marries ‫و‬a ‫و‬woman, ‫و‬having ‫و‬accepted ‫و‬her ‫و‬stipulation ‫و‬ that ‫و‬he ‫و‬shall ‫و‬not ‫و‬remove ‫و‬her ‫و‬from ‫و‬her ‫و‬home ‫و‬country, ‫و‬her ‫و‬ stipulation ‫و‬is ‫و‬to ‫و‬be ‫و‬honoured, ‫و‬based ‫و‬on ‫و‬the ‫و‬hadith, ‫“و‬The ‫و‬ most ‫و‬deserving ‫و‬of ‫و‬conditions ‫و‬to ‫و‬be ‫و‬fulfilled ‫و‬are ‫و‬those ‫و‬by ‫و‬ which ‫و‬you ‫و‬make ‫و‬intercourse ‫و‬lawful”

Maxims: The presumption of validity and permissibility applies to all contracts and conditio

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• Application of the Maxim in Fiqh • Hanafi ‫و‬School  If ‫و‬the ‫و‬seller ‫و‬stipulates ‫و‬that ‫و‬he ‫و‬will ‫و‬only ‫و‬sell ‫و‬the ‫و‬good ‫و‬on ‫و‬the ‫و‬ condition ‫و‬that ‫و‬the ‫و‬buyer ‫و‬will ‫و‬not ‫و‬hold ‫و‬him ‫و‬liable ‫و‬for ‫و‬any ‫و‬ defect, ‫و‬if ‫و‬the ‫و‬buyer ‫و‬agrees, ‫و‬the ‫و‬seller ‫و‬will ‫و‬be ‫و‬free ‫و‬from ‫و‬ liability

Maxims: The presumption of validity and permissibility applies to all contracts and conditio

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• Application in Islamic Finance • Takaful ‫و‬operators ‫و‬may ‫و‬stipulate ‫و‬different ‫و‬monthly ‫و‬ premiums ‫و‬for ‫و‬different ‫و‬individuals ‫و‬to ‫و‬join ‫و‬a ‫و‬family ‫و‬ takaful ‫و‬plan ‫و‬based ‫و‬on ‫و‬actuarial ‫و‬data ‫و‬on ‫و‬different ‫و‬risk ‫و‬ profiles ‫و‬for ‫و‬different ‫و‬demographic ‫و‬groups – Higher ‫و‬risk ‫و –و‬higher ‫و‬contribution – Conditions ‫و‬in ‫و‬contracts ‫و‬are ‫و‬lawful ‫و‬and ‫و‬valid ‫و و‬- ‫و‬do ‫و‬not ‫و‬ contradict ‫و‬the ‫و‬nature ‫و‬of ‫و‬the ‫و‬contract

Maxims: The presumption of validity and permissibility applies to all contracts and conditio

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• Application in Islamic Finance • Combination ‫و‬of ‫و‬contracts ‫(و‬i.e. ‫و‬musharakah ‫و‬ mutanaqisah, ‫و‬ijarah ‫و‬muntahiyah ‫و‬bi ‫و‬al-tamlik) – Issue ‫و‬raised ‫و‬on ‫و‬how ‫و‬to ‫و‬reconcile ‫و‬with ‫و‬the ‫و‬prophet’s ‫و‬prohibition ‫و‬on ‫و‬two ‫و‬ transaction ‫و‬in ‫و‬one ‫و‬transaction – AAOIFI ‫و –و‬combining ‫و‬contracts ‫و‬is ‫و‬permissible • • • • •

Each ‫و‬contract ‫و‬itself ‫و‬is ‫و‬permissible Concluding ‫و‬one ‫و‬contract ‫و‬is ‫و‬not ‫و‬made ‫و‬conditional ‫و‬upon ‫و‬concluding ‫و‬the ‫و‬other The ‫و‬particular ‫و‬combination ‫و‬has ‫و‬not ‫و‬been ‫و‬specifically ‫و‬prohibited ‫و‬by ‫و‬a ‫و‬shari’ah ‫و‬text Combination ‫و‬is ‫و‬not ‫و‬used ‫و‬as ‫و‬a ‫و‬legal ‫و‬trick ‫و‬to ‫و‬get ‫و‬around ‫و‬the ‫و‬prohibition ‫و‬of ‫و‬riba The ‫و‬contracts ‫و‬do ‫و‬not ‫و‬have ‫و‬contradictory ‫و‬goals ‫و‬and ‫و‬rulings

Maxims: The presumption of validity and permissibility applies to all contracts and conditio

3RD MAIN LEGAL MAXIMS RELATING TO CONTRACT

‫ا رل يأ ريصبل سفيي رجسمييسع ا رل يبعقبيوسد‬ ‫ا رل يرعيدبل‬ THE FUNDAMENTAL REQUIREMENT IN EVERY CONTRACT IS JUSTICE

Qawa‘id al-Fiqhiyyah

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ISF 2102

Two keywords that define this maxim 1.asl: defined as a continuosly operative and comprehensive rule or principle. 2.‘adl: infinitive of the verb ‘adala/ya’dilu lto act justly, equitably, with fairness.

egal maxim relating to contract

Definition

Qawa‘id al-Fiqhiyyah

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ISF 2102

Context of Islamic finance  Fairness refers to fulfillment of all financial rights and obligations at the minimum level  The conclusion of a sale contract gives rise to numerous financial rights and obligations Examples: i. Transfer ownership ii. Delivery of the counter-value on the date agreed iii. The obligation of making periodic payment of debt created by a deferred sale iv. Fulfillment of the agreed conditions l Failure to fulfill other rights while having ability to do so is considered injustice

egal maxim relating to contract

Definition

Qawa‘id al-Fiqhiyyah

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ISF 2102

The Quran states:

“Allah commands justice (‘adl) and kindness (ihsan), and generosity towards relatives, and He forbids what is shameful, blameworthy and oppressive. He teaches you so that you may take heed”  Justice (‘adl) is the fundamental requirement of all exchange contracts  Another category; tabarru’ (charitabble) contracts, which are based upon kindness; therefore , the criteion of equivalency between counter-values is not applicable.

egal maxim relating to contract

Authority of the

Qawa‘id al-Fiqhiyyah

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ISF 2102

As for the Sunnah, the Prophet quotes Allah, in a hadith qudsi, as saying:

‫يا عبادي إني حرمت الظلم على نفسي وجعلته بينكم محرما فل تظلم‬ “O my slaves, I have prohibited injustice upon Myself, and I have made it prohibited betwwen you, so do not oppress one another”. Nu’man ibn Bashir related that his father gave him a substantial gift and went to the Prophet (peaace be upon him) asking him to bear witness to the transaction. The Prophet asked him, “do you have other children as well?” he said, “yes”. Prophet asked, “did you give all of them a similar gift?” he said, “no”.

‫ ل أشهد على جور‬،‫فل تشهدنى إذا‬ “then do not call me as witness, for I do not bear witness to Injustice The Prophet said;

egal maxim relating to contract

Authority of the

Qawa‘id al-Fiqhiyyah

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ISF 2102

Bashir had performed an act of ihsan. Giving his son a present without any return. Be unfair to his other children because not given comparable gifts Other children will feel jealous of their brother and resentful toward their father.

egal maxim relating to contract

Authority of the

Qawa‘id al-Fiqhiyyah

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ISF 2102

In Fiqh: 1. Two counter-values that are subject of a sale contract must be known, specified, deliverable and agreed upon; otherwise, there will be no justice for the contracting parties. 2. It is unfair to stipulate that the lessee pay for major maintenance of the leased property because the long-term benefit is for the lessor since he is its owner. 3. Lessee is not liable to pay the price of the subject matter if it is damaged before it is delivered. It is unfair to take payment without delivery of the equivalent counter-value.

egal maxim relating to contract

Application of the Maxim

Qawa‘id al-Fiqhiyyah

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ISF 2102

In Islamic Finance: 1. The contractual basis of the relationship between the bank and the depositor is mudarabah. The two parties share any profits while any financial loss is to be borne by the rabb al-mal. It is unfair for the depositor to demand a guarantee of the principal along with a share of profits because it violates the principle of justice in mudarabah contract. If the mudarib has guarantee the capital, it becomes like a loan (qard). 2. Some banks require a customer who applies for house financing to agree to a clause that will make the customer’s heirs responsible for the debt is repaid. To hold the heirs responsible of the deceased is contrary to shariah, unless they had explicitly agreed to the condition.

egal maxim relating to contract

Application of the Maxim

Qawa‘id al-Fiqhiyyah

ISF 2102

1 3 2 ‫ا رل يأ ريصبل سفيي ا رل يبعقبيوسد سررضا ا رل يبمتررعاسقردييسن‬،  2 ‫روبميوسجببرها رما أ ريورجربابه رعل ريى أ رن يفبسسسهرما سبال يتررعاسقسد‬ 1 THE GENERAL PRINCIPLE CONFERRING VALIDITY OF CONTRACTS IS 2 THE CONSENT OF BOTH PARTIES AND EFFECTIVE TERMS AND CONDITIONS 5 4TH MAIN LEGAL MAXIMS RELATING TO CONTRACT

The General Principle Conferring Validity Of Contracts Is The Consent Of Both Parties And Effective Terms And Conditions

Qawa‘id al-Fiqhiyyah

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ISF 2102

• This maxim mentions an important general principle of contracts; therefore it is necessary condition of validity, but it is not sufficient by itself. If the stipulated condition contradicts with shariah text or nature and implication of the contract to which it is concluded, the condition is invalid, even if both parties agrees to it. It is clear that the freedom to stipulate condition in financial contracts is not absolute; rather, it is restricted by certain rules laid down by the Lawgiver

egal maxim relating to contract

Definition

Qawa‘id al-Fiqhiyyah

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ISF 2102

 The maxim contain two keywords 1. Rida : is a noun derived from the verb ridaya/yarda, to be satified, content, to consent, agree, to improve. l is an agreement and consent based on satisfaction. satisfaction is inner reality. Therefore, the legal ruling is based on the outward expression of offer and acceptance. As long as there is no evidence that either of these has been corrupted by coercion, they are regard as valid indicators of satisfaction

2. Mujib : is the active participle of the verb awjaba/yujibu , to make necessary, obligatory, binding l Means “obligating o necessitating” or it can mean “requirement”. In the context of a contract, a mujib is the requirement it imposes

egal maxim relating to contract

Definition

Qawa‘id al-Fiqhiyyah

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ISF 2102

 The legal effect of contracts are determined by the following : 1. The legal effect set by the shari’ah -. The shari’ah has set the legal effect of the financial contracts and make them binding on the contracting parties. hence, the parties to the contract are not allowed to disregard them by stipulating any condition that violates them -. For example; the shari’ah requires that the subject matter of a sale contract be deliverable

egal maxim relating to contract

The legal effect of the

Qawa‘id al-Fiqhiyyah

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ISF 2102

2. The stipulation of conditions by either of the contracting parties -. In general, the contracting parties may stipulate conditions that do no clash with the shari’ah. Once both parties agree to them, the condition become binding upon them. 3. Custom and circumstantial evidence associated with the contracts. - The factor in this point are recognized when they do not conflict with the first two (custom is arbiter)

egal maxim relating to contract

Legal effect of the

Qawa‘id al-Fiqhiyyah

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ISF 2102

The Qur’an states :

“O you who believe! Do not consume one another’s wealth wrongfully; rather, let there be trade by mutual consent; and do not kill one another, for Allah is indeed merciful for you”.

egal maxim relating to contract

Authority of the

Qawa‘id al-Fiqhiyyah

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ISF 2102

• More specifically, the Qur’an states :

“and give woman their bridal due to spirit of a gift; but if they are happy to give up some of it to you, you may enjoy it with clear conscience”.

egal maxim relating to contract

Authority of the

Qawa‘id al-Fiqhiyyah

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ISF 2102

• The sunnah tells the same general concept : ‫مدا م‬ ‫ح ل‬ ‫ب نفسه‬ ‫" مل ي م ب‬. ” ‫ئ إ بكل ب ب ب‬ ‫ر ئ‬ ‫لا ل‬ ‫ م‬ ‫ل‬ ‫طي ب‬ ‫م ب‬ ‘it is not lawful (to acquire) a person’s wealth without his freely consent’ • There is legal consensus (ijma’) of all scholars that mutual consent is a requirement in financial contracts.

egal maxim relating to contract

Authority of the

Qawa‘id al-Fiqhiyyah

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ISF 2102

• For example : 1. Party A sells all asset to part B without specifying the price at the time the contract is concluded. According to Hanafi school, the contract can be verified if the two parties agree on a specific price after the contract session, due to the realisation of mutual consent. Otherwise, the asset should be returned to its owner 2. If it is proven that party A was forced to sell his land (or any other asset) to party B, the contract is invalid and party A has right to take his land back (and return the selling price)

egal maxim relating to contract

Application of the maxim in

Qawa‘id al-Fiqhiyyah

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ISF 2102

• Example : 1. An audit find that an Islamic bank charged a fee for early settlement of a deferred payment sale agreement. The charge was not mentioned in the contract signed with the client. Therefore it is invalid. So, the amount must be returned to the customer. 2. In order to avoid a lengthy legal action process in case of specified trigger events, the bank and customer in a property financing may agree to assign disposal right of the property to a third party

troduction to Qawa‘id al-Fiqhiyyah

Application of maxim in Islamic

5TH MAIN LEGAL MAXIMS RELATING TO CONTRACT

‫لدل وأ هوجدل دقوسةط دمهن الثكههمدن‬ DEFERMENT CONSTITUTES A PART OF THE PRICE

Qawa‘id al-Fiqhiyyah

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ISF 2102

Deferment ‫و‬constitutes ‫و‬a ‫و‬part ‫و‬of ‫و‬the ‫و‬price

‫م‬ ‫ط‬ ‫س‬ ‫ث‬ ‫ن‬ ‫م‬ ‫ث‬ ‫ال‬ ‫ن‬ ‫م‬ ‫ط‬ ‫س‬ ‫ق‬ ‫ل‬ ‫ج‬ ‫ل‬ ‫لن‬ ‫ن‬ ‫ن‬ ‫س‬ ‫س‬ ‫م‬ ‫م‬ ‫ن‬ ‫ن‬

Explanation: ‫و‬ 1. - ‫و‬Ajal ‫و‬is ‫و‬related ‫و‬to ‫و‬the ‫و‬verb ‫و‬ajila/ya’jalu: ‫و‬to ‫و‬hesitate ‫و‬or ‫و‬linger - ‫و‬Ajjala/yu’ajjilu ‫و‬means ‫و‬to ‫و‬delay ‫و‬or ‫و‬postpone - ‫و‬Ajal: ‫و‬appointed ‫و‬time, ‫و‬a ‫و‬deadline, ‫و‬a ‫و‬respite ‫و‬or ‫و‬delay - ‫و‬Bil ‫و‬ajal: ‫و‬on ‫و‬credit 2. - ‫و‬Qist ‫و‬is ‫و‬related ‫و‬to ‫و‬the ‫و‬verb ‫و‬qassata/yaqassitu: ‫و‬to ‫و‬distribute ‫و‬something, ‫و‬to ‫و‬pay ‫و‬in ‫و‬installment - ‫و‬Qist ‫و‬also ‫و‬means ‫و‬share, ‫و‬portion, ‫و‬quantity, ‫و‬installment 3. ‫ و‬- ‫و‬Thaman ‫و‬means ‫و‬cost, ‫و‬price ‫و‬or ‫و‬value

ain Maxims: Deferment constitutes a part of the price

Qawa‘id al-Fiqhiyyah

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ISF 2102

‫س‬ ‫ساءء فملم‬ ‫م‬ ‫ن م‬ ‫ن كا م‬ ‫ ومإ ن س‬،‫س‬ ‫ن يم ء‬ ‫كا م‬ ‫و و و و و و و و و إ ن ث‬ ‫ن نم م‬ ‫دا ب ني مد د فممل ب مأ م‬ ‫حو و و و و و و و و و و و و و و و و و‬ ‫صل ح ح‬ ‫يم س‬

”If ‫و‬payment ‫و‬is ‫و‬made ‫و‬on ‫و‬the ‫و‬spot, ‫و‬there ‫و‬is ‫و‬no ‫و‬harm ‫و‬in ‫و‬it; ‫و‬but ‫و‬if ‫و‬payment ‫و‬is ‫و‬delayed, ‫و‬it ‫و‬is ‫و‬not ‫و‬valid “

-

In ‫و‬an ‫و‬exchange ‫و‬contract ‫و‬of ‫و‬money ‫و‬for ‫و‬money, ‫و‬a ‫و‬delay ‫و‬in ‫و‬payment ‫و‬by ‫و‬one ‫و‬of ‫و‬the ‫و‬ parties ‫و‬would ‫و‬mean: – The ‫و‬party ‫و‬who ‫و‬received ‫و‬immediate ‫و‬payment ‫و‬derive ‫و‬immediate ‫و‬benefit – The ‫و‬other ‫و‬party’s ‫و‬benefit ‫و‬would ‫و‬be ‫و‬delayed – The ‫و‬exchange ‫و‬involves ‫و‬a ‫و‬disparity, ‫و‬a ‫و‬form ‫و‬of ‫و‬riba

-

Delayed ‫و‬payment ‫و‬is ‫و‬allowed ‫و‬in ‫و‬exchange ‫و‬contracts ‫و‬as ‫و‬long ‫و‬as ‫و‬the ‫و‬counter-values ‫و‬are ‫و‬ not ‫و‬from ‫و‬the ‫و‬same ‫و‬class ‫و‬of ‫و‬ribawi ‫و‬goods. ‫و‬Allah’s ‫و‬Messenger ‫و‬stated:

“gold ‫و‬for ‫و‬gold, ‫و‬silver ‫و‬for ‫و‬silver, ‫و‬wheat ‫و‬for ‫و‬wheat, ‫و‬barley ‫و‬for ‫و‬barley, ‫و‬dates ‫و‬for ‫و‬dates, ‫و‬and ‫و‬salt ‫و‬for ‫و‬salt; ‫و‬ like ‫و‬for ‫و‬like, ‫و‬in ‫و‬equal ‫و‬amounts ‫و‬and ‫و‬hand ‫و‬to ‫و‬hand. ‫و‬But ‫و‬when ‫و‬the ‫و‬type ‫(و‬asnaf) ‫و‬differ, ‫و‬then ‫و‬sell ‫و‬as ‫و‬ you ‫و‬please ‫و‬as ‫و‬long ‫و‬as ‫و‬it ‫و‬is ‫و‬hand ‫و‬to ‫و‬hand”

ain Maxims: Deferment constitutes a part of the price

Qawa‘id al-Fiqhiyyah

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ISF 2102

“sell ‫و‬gold ‫و‬for ‫و‬silver ‫و‬as ‫و‬you ‫و‬please ‫و‬in ‫و‬a ‫و‬spot ‫و‬transaction, ‫و‬and ‫و‬sell ‫و‬wheat ‫و‬for ‫و‬dates ‫و‬as ‫و‬you ‫و‬please ‫و‬in ‫و‬a ‫و‬ spot ‫و‬transaction, ‫و‬and ‫و‬sell ‫و‬barley ‫و‬for ‫و‬dates ‫و‬as ‫و‬you ‫و‬please ‫و‬in ‫و‬a ‫و‬spot ‫و‬transaction”

‫ذا تداينتم بدين إملى أ م‬ ‫يا أ م‬ ‫ث‬ ‫م‬ ‫ل‬ ‫ج‬ ‫إ‬ ‫نوا‬ ‫م‬ ‫آ‬ ‫ن‬ ‫ذي‬ ‫ل‬ ‫ا‬ ‫ها‬ ‫ي‬ ‫م يم‬ ‫م د‬ ‫ن م م ح ن م م مسح س ن مس د ن‬ ‫م م‬ ‫مى مفاك ست ححبوه ح‬ ‫س م‬ ‫ي‬

“you ‫و‬who ‫و‬believe, ‫و‬when ‫و‬you ‫و‬contract ‫و‬a ‫و‬debt ‫و‬for ‫و‬a ‫و‬stated ‫و‬term, ‫و‬put ‫و‬it ‫و‬down ‫و‬in ‫و‬writing”

Al ‫و‬Tabari ‫و‬quotes ‫و‬Ibn ‫و‬Abbas ‫و‬that ‫و‬the ‫و‬above ‫و‬verse ‫و‬was ‫و‬about ‫و‬ • Forward ‫(و‬salam) ‫و‬sales ‫و –و‬sales ‫و‬in ‫و‬which ‫و‬the ‫و‬buyer ‫و‬pays ‫و‬the ‫و‬seller ‫و‬in ‫و‬advance ‫و‬for ‫و‬later ‫و‬ delivery • Delayed ‫و‬payment ‫و‬sale ‫(و‬bay ‫و‬bi ‫و‬thaman ‫و‬ajil) ‫و –و‬sale ‫و‬in ‫و‬which ‫و‬the ‫و‬buyer ‫و‬takes ‫و‬ immediate ‫و‬receipt ‫و‬of ‫و‬the ‫و‬good ‫و‬while ‫و‬the ‫و‬seller ‫و‬takes ‫و‬receipt ‫و‬of ‫و‬the ‫و‬payment ‫و‬at ‫و‬a ‫و‬ specified ‫و‬future ‫و‬date

ain Maxims: Deferment constitutes a part of the price

Qawa‘id al-Fiqhiyyah

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•

ISF 2102

2 ‫و‬of ‫و‬the ‫و‬Tabi’in ‫و‬had ‫و‬a ‫و‬disagreement ‫و‬about ‫و‬salam ‫و‬sales ‫و‬and ‫و‬referred ‫و‬the ‫و‬matter ‫و‬to ‫و‬the ‫و‬ Companion ‫و‬Ibn ‫و‬Abi ‫و‬Awfa, ‫و‬who ‫و‬told ‫و‬them:

“We ‫و‬used ‫و‬to ‫و‬make ‫و‬advance ‫و‬payment ‫و‬for ‫و‬wheat, ‫و‬barley, ‫و‬raisins ‫و‬and ‫و‬dates ‫و‬during ‫و‬the ‫و‬eras ‫و‬of ‫و‬the ‫و‬ Prophet, ‫و‬Abu ‫و‬Bakr ‫و‬and ‫و‬Umar” Allah’s ‫و‬Messenger ‫و‬knew ‫و‬about ‫و‬this ‫و‬practise ‫و‬and ‫و‬permitted ‫و‬it ‫و‬on ‫و‬the ‫و‬condition ‫و‬that ‫و‬the ‫و‬volume ‫و‬or ‫و‬ weight ‫و‬of ‫و‬the ‫و‬item ‫و‬sold ‫و‬be ‫و‬known ‫و‬and ‫و‬the ‫و‬delivery ‫و‬date ‫و‬be ‫و‬specified

•

The ‫و‬permissibility ‫و‬of ‫و‬a ‫و‬delayed ‫و‬payment ‫و‬sale ‫(و‬bay ‫و‬bi ‫و‬thaman ‫و‬ajil):

Aishah ‫و‬and ‫و‬Ibn ‫و‬Abbas ‫و‬narrated ‫و‬that ‫و‬Allah’s ‫و‬Messenger ‫و‬bought ‫و‬grain ‫و‬from ‫و‬a ‫و‬Jew ‫و‬on ‫و‬credit ‫و‬and ‫و‬ mortgaged ‫و‬his ‫و‬armour ‫و‬to ‫و‬him

ain Maxims: Deferment constitutes a part of the price

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ISF 2102

The ‫و‬Hanafi ‫و‬scholar ‫و‬al ‫و‬Kasani ‫و‬states ‫و‬that ‫و‬there ‫و‬is ‫و‬a ‫و‬difference ‫و‬in ‫و‬value ‫و‬between ‫و‬spot ‫و‬ and ‫و‬delayed ‫و‬delivery ‫و‬of ‫و‬the ‫و‬same ‫و‬amount:

“there ‫و‬is ‫و‬no ‫و‬equality ‫و‬between ‫و‬spot ‫و‬and ‫و‬deferred ‫و‬payment ‫و‬because ‫و‬cash ‫و‬is ‫و‬better ‫و‬than ‫و‬debt ‫و‬and ‫و‬the ‫و‬ immediate ‫و‬has ‫و‬a ‫و‬higher ‫و‬value ‫و‬than ‫و‬the ‫و‬deferred” Whether ‫و‬the ‫و‬delay ‫و‬does ‫و‬represent ‫و‬portion ‫و‬of ‫و‬the ‫و‬price

Deferment ‫و‬ constitutes ‫و‬part ‫و‬of ‫و‬ the ‫و‬price

Deferment ‫و‬does ‫و‬ not ‫و‬correspond ‫و‬to ‫و‬ any ‫و‬part ‫و‬of ‫و‬the ‫و‬ price

ain Maxims: Deferment constitutes a part of the price

Qawa‘id al-Fiqhiyyah

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ISF 2102

Authority ‫و‬of ‫و‬the ‫و‬maxim

‫س‬ ‫ث‬ ‫ث‬ ‫م‬ ‫ح‬ ‫ث‬ ‫م‬ ‫ح‬ ‫ن‬ ‫ذي‬ ‫ل‬ ‫ا‬ ‫م‬ ‫قو‬ ‫ح‬ ‫ي‬ ‫ما‬ ‫ك‬ ‫ل‬ ‫إ‬ ‫ن‬ ‫مو‬ ‫قو‬ ‫ح‬ ‫ي‬ ‫ل‬ ‫با‬ ‫ر‬ ‫ال‬ ‫ن‬ ‫لو‬ ‫ك‬ ‫أ‬ ‫ي‬ ‫ن‬ ‫ذي‬ ‫﴿ال‬ ‫ن‬ ‫ن‬ ‫م‬ ‫م‬ ‫م‬ ‫م‬ ‫م‬ ‫م‬ ‫ح‬ ‫م‬ ‫ح‬ ‫م‬ ‫ر‬ ‫م‬ ‫ن‬ ‫م‬ ‫ح‬ ‫شي س م‬ ‫س ذ مل ن م‬ ‫ه ال ث‬ ‫م مقالوا‬ ‫ي مت م م‬ ‫ن ن‬ ‫طا ح‬ ‫ك ب نأن ثهح س‬ ‫ن ال س م‬ ‫خب ثط ح ح‬ ‫م ر‬ ‫م م‬ ‫م‬ ‫س‬ ‫ح ث‬ ‫مث س ح‬ ﴾‫م الررمبا‬ ‫ما ال سب مي سعح ن‬ ‫ه الب مي سعم وم م‬ ‫ل الررمبا ومأ م‬ ‫حثر م‬ ‫ل الل ح‬ ‫إ نن ث م‬

“those ‫و‬who ‫و‬consume ‫و‬riba ‫و‬cannot ‫و‬rise ‫و‬up ‫و‬except ‫و‬as ‫و‬one ‫و‬arises ‫و‬whom ‫و‬the ‫و‬devil ‫و‬has ‫و‬driven ‫و‬mad ‫و‬by ‫و‬his ‫و‬ touch. ‫و‬That ‫و‬is ‫و‬because ‫و‬they ‫و‬say ‫‘و‬trade ‫و‬is ‫و‬just ‫و‬like ‫و‬riba’; ‫و‬whereas ‫و‬Allah ‫و‬permits ‫و‬trading ‫و‬and ‫و‬ forbids ‫و‬riba”

 The ‫و‬majority ‫و‬of ‫و‬jurists ‫و‬allow ‫و‬a ‫و‬markup ‫و‬on ‫و‬a ‫و‬deferred ‫و‬payment: 1. The ‫و‬Hanafi ‫و‬scholar ‫و‬al ‫و‬Marghinani ‫“و –و‬because ‫و‬the ‫و‬price ‫و‬increases ‫و‬due ‫و‬to ‫و‬the ‫و‬deferment” 2. Ibn ‫و‬Taymiyyah ‫و‬of ‫و‬the ‫و‬Hanbali ‫و‬School ‫“و –و‬if ‫و‬he ‫و‬sells ‫و‬it ‫و‬to ‫و‬him ‫و‬for ‫و‬a ‫و‬price ‫و‬for ‫و‬that ‫و‬deferred ‫و‬ period, ‫و‬then ‫و‬the ‫و‬deferred ‫و‬period ‫و‬takes ‫و‬a ‫و‬portion ‫و‬of ‫و‬the ‫و‬sale ‫و‬price”

ain Maxims: Deferment constitutes a part of the price

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

ISF 2102

However, ‫و‬a ‫و‬number ‫و‬of ‫و‬scholars ‫و‬disagreed ‫و‬with ‫و‬the ‫و‬view: ‫و‬Zayn ‫و‬al ‫و‬Abidin ‫و‬Ali ‫و‬Ibn ‫و‬ Husayn, ‫و‬Simak ‫و‬ibn ‫و‬Harb ‫و‬and ‫و‬a ‫و‬few ‫و‬Zaydi ‫و‬jurists. ‫و‬They ‫و‬based ‫و‬their ‫و‬view ‫و‬on: “Abu ‫و‬Hurayrah ‫و‬states ‫و‬that ‫و‬the ‫و‬Prophet ‫و‬prohibited ‫و‬2 ‫و‬sales ‫و‬in ‫و‬one ‫و‬sale”

Interpretation ‫و‬of ‫“و‬2 ‫و‬sales ‫و‬in ‫و‬one ‫و‬sale” - The ‫و‬seller ‫و‬offers ‫و‬an ‫و‬item ‫و‬to ‫و‬the ‫و‬buyer ‫و‬at ‫و‬one ‫و‬price ‫و‬for ‫و‬spot ‫و‬payment ‫و‬and ‫و‬at ‫و‬a ‫و‬higher ‫و‬ price ‫و‬by ‫و‬delayed ‫و‬payment - It ‫و‬is ‫و‬objectionable ‫و‬if ‫و‬the ‫و‬contracting ‫و‬parties ‫و‬fail ‫و‬to ‫و‬specify ‫و‬which ‫و‬of ‫و‬the ‫و‬2 ‫و‬ alternatives ‫و‬they ‫و‬will ‫و‬seal ‫و‬the ‫و‬deal ‫و‬upon ‫و –و‬renders ‫و‬the ‫و‬price ‫و‬unknown - The ‫و‬objectionable ‫و‬feature ‫و‬is ‫و‬not ‫و‬the ‫و‬markup ‫و‬on ‫و‬the ‫و‬delayed ‫و‬payment ‫و‬sale

ain Maxims: Deferment constitutes a part of the price

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Application ‫و‬of ‫و‬the ‫و‬maxim ‫و‬in ‫و‬Fiqh 1. Just ‫و‬as ‫و‬Muslim ‫و‬jurists ‫و‬allow ‫و‬the ‫و‬seller ‫و‬to ‫و‬charge ‫و‬extra ‫و‬when ‫و و‬payment ‫و‬is ‫و‬deferred, ‫و‬ they ‫و‬allow ‫و‬the ‫و‬buyer ‫و‬to ‫و‬ask ‫و‬for ‫و‬a ‫و‬discount ‫و‬for ‫و‬advanced ‫و‬payment ‫و‬in ‫و‬a ‫و‬salam ‫و‬sale. 2. The ‫و‬price ‫و‬in ‫و‬an ‫و‬ijarah ‫و‬contract ‫و‬for ‫و‬the ‫و‬rental ‫و‬of ‫و‬any ‫و‬item ‫و‬always ‫و‬takes ‫و‬into ‫و‬account ‫و‬ the ‫و‬period ‫و‬of ‫و‬time ‫و‬for ‫و‬which ‫و‬the ‫و‬item ‫و‬will ‫و‬be ‫و‬used. ‫و و‬ 3. In ‫و‬Murabahah ‫و‬contract, ‫و‬if ‫و‬the ‫و‬buyer ‫و‬discovers ‫و‬that ‫و‬the ‫و‬seller ‫و‬failed ‫و‬to ‫و‬inform ‫و‬him ‫و‬ that ‫و‬the ‫و‬price ‫و‬he ‫و‬quoted ‫و‬was ‫و‬based ‫و‬on ‫و‬the ‫و‬seller ‫و‬paying ‫و‬for ‫و‬the ‫و‬item ‫و‬by ‫و‬deferred ‫و‬ payment, ‫و‬the ‫و‬buyer ‫و‬has ‫و‬the ‫و‬right ‫و‬to ‫و‬annul ‫و‬the ‫و‬sale. ‫و‬This ‫و‬is ‫و‬because ‫و‬the ‫و‬seller ‫و‬could ‫و‬ have ‫و‬paid ‫و‬less ‫و‬for ‫و‬it ‫و‬if ‫و‬he ‫و‬had ‫و‬paid ‫و‬for ‫و‬it ‫و‬on ‫و‬the ‫و‬spot. ‫و‬

ain Maxims: Deferment constitutes a part of the price

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Application ‫و‬of ‫و‬the ‫و‬maxim ‫و‬in ‫و‬Islamic ‫و‬Finance 1. When ‫و‬one ‫و‬partner ‫و‬contracts ‫و‬to ‫و‬buy ‫و‬the ‫و‬equity ‫و‬of ‫و‬other ‫و‬partner, ‫و‬the ‫و‬price ‫و‬reflects ‫و‬the ‫و‬ payment ‫و‬period; ‫و‬the ‫و‬longer ‫و‬the ‫و‬payment ‫و‬period, ‫و‬the ‫و‬higher ‫و‬the ‫و‬price 2. The ‫و‬market ‫و‬practice ‫و‬regarding ‫و‬mudarabah ‫و‬contract ‫و‬is ‫و‬that ‫و‬the ‫و‬longer ‫و‬the ‫و‬duration ‫و‬of ‫و‬ the ‫و‬enterprise, ‫و‬the ‫و‬higher ‫و‬the ‫و‬portion ‫و‬of ‫و‬the ‫و‬profit ‫و‬that ‫و‬the ‫و‬rabb ‫و‬al ‫و‬mal ‫و‬will ‫و‬demand 3. In ‫و‬murabahah ‫و‬contract, ‫و‬if ‫و‬a ‫و‬customer ‫و‬wishes ‫و‬to ‫و‬purchase ‫و‬an ‫و‬item ‫و‬but ‫و‬he ‫و‬cannot ‫و‬ afford ‫و‬by ‫و‬spot ‫و‬payment, ‫و‬he ‫و‬will ‫و‬approach ‫و‬the ‫و‬bank ‫و‬and ‫و‬promise ‫و‬to ‫و‬buy ‫و‬it ‫و‬at ‫و‬the ‫و‬ bank’s ‫و‬cost ‫و‬plus ‫و‬a ‫و‬mutually ‫و‬agreed ‫و‬markup. ‫و‬The ‫و‬amount ‫و‬of ‫و‬markup ‫و‬is ‫و‬calculated ‫و‬by ‫و‬ taking ‫و‬into ‫و‬account ‫و‬the ‫و‬payment ‫و‬period

ain Maxims: Deferment constitutes a part of the price

MAXIMS DEALING WITH PROFIT & LIABILITY

ISF 2102

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1ST LEGAL MAXIMS DEALING WITH PROFIT & LIABILITY

‫الخراج بالضمان‬

(al- kharaj bi-dhaman) BENEFITS GOES WITH LIABILITY

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‫الخراج بالضمان‬ (al- kharaj bi-dhaman)

BENEFITS ‫و‬GOES ‫و‬WITH ‫و‬LIABILITY

Kharaj (‫) خراج‬ • Yield, Return, Revenue • The yield or separable benefit or corpus resulting from an owned asset

Legal Maxims : Customs is An Arbiter

Daman ( ‫)ضمان‬ • Responsibility, Liability, Guarantee • Liability for an asset in case it is damaged or destroyed

Definition

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EXPLAINATION of the MAXIM GENERAL MEANING • The benefit of an asset is the right of one who indemnifies it if it is damaged A ‫و‬person ‫و‬who ‫و‬is ‫و‬held ‫و‬liable ‫و‬in ‫و‬case ‫و‬an ‫و‬asset ‫و‬is ‫و‬damaged, ‫و‬ deserved ‫و‬to ‫و‬take ‫و‬its ‫و‬benefits ‫و‬as ‫و‬compensation Debtor ‫و‬can ‫و‬enjoy ‫و‬the ‫و‬money ‫و‬that ‫و‬he ‫و‬borrowed, ‫و‬since ‫و‬he ‫و‬is ‫و‬the ‫و‬ one ‫و‬who ‫و‬will ‫و‬pay ‫و‬its ‫و‬principal, ‫و‬under ‫و‬all ‫و‬circumstances Profit ‫و‬earned ‫و‬without ‫و‬bearing ‫و‬liabilities/risk ‫و‬is ‫و‬prohibited

Legal Maxims : Customs is An Arbiter

Explanation of the Maxim

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Causes that triggering daman (‫)ضمان‬, as recognized by Shari’ah:  Damaging ‫و‬the ‫و‬property ‫و‬of ‫و‬another, ‫و‬either ‫و‬directly ‫و‬or ‫و‬ indirectly.  Possession ‫و‬of ‫و‬an ‫و‬asset ‫و‬and ‫و‬having ‫و‬the ‫و‬ability ‫و‬to ‫و‬handle ‫و‬or ‫و‬ dispose ‫و‬it  Eg: Wadi’ah (deposit)

 Entering ‫و‬into ‫و‬a ‫و‬contract ‫و‬: ‫و‬violates ‫و‬the ‫و‬conditions

The ‫و‬maxim ‫و‬ONLY ‫و‬applies ‫و‬to ‫و‬the ‫و‬liabilities ‫و‬that ‫و‬comes ‫و‬ from ‫و‬taking ‫و‬possession of an asset by ownership or by the owner’s permission, ‫و‬when ‫و‬the ‫و‬possessor ‫و‬take ‫و‬ possession ‫و‬for ‫و‬his ‫و‬own ‫و‬benefit

Legal Maxims : Customs is An Arbiter

Explanation of the Maxim

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AUTHORITY of the MAXIM Qur’an, ‫و‬Surah ‫و‬al-Baqarah, ‫و‬verse ‫و‬275 ‫و‬:

‫ و و …ووأووححلو لا حة‬.” “….‫لو لاللوبليوعو وووححرومو لالصروب ا‬ (Surah ‫و‬al-Baqarah ‫و‬: ‫و‬275)

“…Allah has permitted sale and prohibited riba ,..”

‘Abd ‫و‬Allah ‫و‬ibn ‫‘و‬Amr ‫و‬ibn ‫و‬al-’As ‫و‬has ‫و‬quoted ‫و‬Allah’s ‫و‬Messenger ‫و‬ (S.A.W.) ‫و‬saying;

“‫”ليحلو و ورجحو م المو يضمن‬ “Profit is not lawful…..from that for which one has no liability,”

Legal Maxims : Customs is An Arbiter

Authority of the Maxim

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Application of the Maxim in FIQH

• Shirkat Wujuh

: ‫و‬A ‫و‬traders ‫و‬partnership, ‫و‬ without ‫و‬capital ‫و‬but ‫و‬based ‫و‬on ‫و‬good ‫و‬reputation. – Purchase ‫و‬good ‫و‬on ‫و‬credit – Liability ‫و‬proportion ‫و‬are ‫و‬created ‫و‬from ‫و‬the ‫و‬purchase ‫و‬that ‫و‬they ‫و‬ made – Sell ‫و‬the ‫و‬goods, ‫و‬repay ‫و‬the ‫و‬debt ‫و &و‬divide ‫و‬the ‫و‬profit

Legal Maxims : Customs is An Arbiter

Maxim Application in Fiqh

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APPLICATION IN ISLAMIC FINANCE  The ‫‘و‬Sleeping Partner’ ‫و‬in ‫و‬a ‫و‬Musyarakah ‫و‬or ‫و‬ Mudarabah ‫و‬contract ‫و‬is ‫و‬still ‫و‬entitled ‫و‬to ‫و‬a ‫و‬share ‫و‬of ‫و‬ the ‫و‬profit ‫و‬even ‫و‬if ‫و‬he ‫و‬is ‫و‬not ‫و‬involved ‫و‬in ‫و‬the ‫و‬work ‫و‬ and ‫و‬management ‫و‬of ‫و‬the ‫و‬company ‫و‬because ‫و‬of ‫و‬his ‫و‬ capital ‫و‬is ‫و‬exposed ‫و‬to ‫و‬risk ‫و‬of ‫و‬loss  Depositor ‫و‬is ‫و‬liable ‫و‬to ‫و‬bear ‫و‬the ‫و‬expenditure ‫و‬of ‫و‬ safe-keeping ‫و‬because ‫و‬he ‫و‬who ‫و‬benefits ‫و‬from ‫و‬the ‫و‬ safety.

axims Dealing with Profit & Liability

Maxim Application in Islamic Financ

*BR. HAFIZI 2nd LEGAL MAXIMS DEALING WITH PROFIT & LIABILITY

3RD LEGAL MAXIMS DEALING WITH PROFIT & LIABILITY

‫جهوارزال ك هشوردع كري رينا هدفوي ال كهضهماهن‬ ‫ال و ه‬ (Al-Jawāzu al-Sharʿiyyu Yunāfi al-Ḍamān)

LEGAL PERMISSION NEGATES LIABILITY

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• ‫ي‬ ‫واحزال ث‬ ‫شسر ن‬ ‫ ال س م‬- Al-Jawāzu al-Sharʿiyyu : Legal permission ‫ع ي‬ ‫ج م‬ The general permission of the Shariah to perform an action or to leave it

• ‫ن‬ ‫ما م‬ ‫ مال ث‬- al-Ḍamān : Liability ‫ض م‬ Imam Ghazali defined liability (al-Ḍamān) as “Duty to return the same thing or its alternative which is equal in value or price”

LEGAL PERMISSION NEGATES LIABILITY • The maxim denotes that no indemnity is warranted for a legitimate action if it happens to cause harm or loss to others. That is because it would be contradictory to give permission for an act and then require indemnity for an asset damaged due to that permitted act

Maxims Dealing With Profit & Liability: Legal Permission Negates Liability

Definition

Qawa‘id al-Fiqhiyyah

ISF 2102

Explanation of the Maxim

1 • The legal maxim means that an act which is 3 allowed by the law cannot be made the subject of a claim to compensation. 2 • In other words, if an injury was a result of a lawful 1 action, the injurer is not liable for the damage caused, and subsequently, he is not 9 liable to compensate the affected person. 5 • He shall not be liable to compensate the third party that is afflicted by the damaged due to his 2 action as long as it was legally permissible

egal Maxims : Legal Permission Negates Liability

Definition

Qawa‘id al-Fiqhiyyah

ISF 2102

Conditions :

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• Although legal permission negates liability, the abuse of rights is prohibited in Islamic law 1. The action should be perform safely – Eg: Government allows a person who pass a driving test to drive cars on public road, but it’s predicted on driving safely.

2. The damage to another’s asset should not be for the interest of himself – A person facing starvation is allowed to eat food belonging to someone else, however since he does so for his own benefit, he should pay for it when he is able

‫ضطبمرامر مل ي مب لطب م‬ ‫ر‬ ‫ق ال ل م‬ ‫ا مبل ل‬ ‫ل م‬ ‫ح ك‬ ‫غي ل ب‬ Necessity does not annul the right of others

egal Maxims : Legal Permission Negates Liability

Definition

Qawa‘id al-Fiqhiyyah

ISF 2102

Writings about the maxim 1

3 2 • Books of qawāʿid : 1 9 • Moden works : 5 2

• Article number 90 in Majallat al-Ahkām al-ʿAdliyyah • Al Suyūti’s collection of al-qawāʿid al-kulliyyah

– Al-Manthūr (al-Zarkashī) – Manāfiʿ al-Daqāʿiq (al-Khādimī) – Al-Farāʿid al-Bahiyyah (Mahmūd Hamzah)

– Madkhal al-Fiqhī al-ʿĀmm by Muṣṭafā al-Zarqā – Al-Qawāʿid al-Fiqhiyyah Bayna al-Aṣālah wal-Tawjīh by Muhammad Bakr Ismāʿil – Al-Wajīz Fī ʿĪḍāḥ al-Qawāʿid al-Fiqhiyyah by Ṣidqī al-Būrnū

Maxims Dealing With Profit & Liability: Legal Permission Negates Liability

Definition

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1. Al-Quran – (Al Tawbah 9:91) ‫عهلى ال كهدذيهن هلا يهدجردوهن هما‬ ‫عهلى ال وهمورهضىى هوهلا ه‬ ‫عهلى ال كرضهعهفادء هوهلا ه‬ ‫ل كهيوهس ه‬ ‫دنيهن دمن هسدبيلل‬ISF ‫حدس‬ ‫ريندفرقوهن هحهرةج دإهذا ن ههص ر‬ ‫م و‬2102 ‫حوا لدل كهده هوهررسولدده هما ه‬ ‫عهلى ال و ر‬ (91) ‫غرفوةر كهردحيمة‬ ‫هوالل كهره ه‬ No blame lies on the weak, nor on the sick, nor on those who can find nothing to spend if they are sincere to Allah and His Messenger. There is no way (to blame) against the doers of good. And Allah is Forgiving, Merciful (91)

egal Maxims : Legal Permission Negates Liability

Sources of the Maxims

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2. Hadith ‫ هفهقاهل‬، ‫عل هيوده هوهسل كههم‬ ‫ هجاهء هررجةل دإهلى هررسودل الل كهده هص كهلى الل كهره ه‬: ‫ هقاهل‬، ‫عون أ هدبي رههريوهرهة‬ ‫ه‬ ‫ هفهلا تروعدطده‬: ‫ت دإون هجاهء هررجةل يردريرد أ هوخهذ همادلي ؟ هقاهل‬ ‫ " أ ههرأ هيو ه‬، ‫ هيا هررسوهل الل كهده‬: : ‫ت دإون هقتهل هدني ؟ هقاهل‬ ‫ أ ههرأ هيو ه‬: ‫ هقاهل‬، ‫ هقادتل وره‬: ‫ت دإون هقاتهل هدني ؟ هقاهل‬ ‫ أ ههرأ هيو ه‬: ‫ هقاهل‬، ‫همال ههك‬ " ‫ رههو دفي ال كهنادر‬: ‫ت دإون هقتهل وترره ؟ هقاهل‬ ‫ أ ههرأ هيو ه‬: ‫ هقاهل‬، ‫ت هشدهيةد‬ ‫هفأ هن و ه‬

[Muslim]

Abu Hurairah (May Allah be pleased with him) reported: A man came to the Messenger of Allah ‫ ﷺ‬and asked, "O Messenger of Allah! What shall I do if someone comes to me with the intention of taking away my property?" He replied, "Do not hand over it to him." The man asked, "What shall I do if he fights me?" The Messenger of Allah ‫ﷺ‬ said, "Then fight him." "What will be my position in the Hereafter if he has killed me?" The Messenger of Allah‫ﷺ‬ replied, "In that case you are a martyr." The man asked: "What if I killed him?" The Messenger of Allah‫ ﷺ‬replied, "He will be in the Hellfire."Liability egal Maxims : Legal Permission Negates Sources of the Maxims

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ISF 2102

Application of the Maxim in Fiqh 1. If a doctor treats a patient according to the recognized standards of medical practice but the patient dies, the doctor is not liable 2. If a merchant open a store next to an existing store that sells the same commodities, and the revenues of the first store decreases, the owner of the new store cannot be asked for compensation because his activity is perfectly lawful. 3. The one who digs a hole in his own land or house will not be liable if another person or animal falls into it since he does not violate the rights of others.

egal Maxims : Legal Permission Negates Liability

Application in Fiqh

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ISF 2102

Application of the Maxim in Islamic Finance 1. A trustee in a wadīʿah contract returns the wadīʿah item to the depositor by an agreed upon, reliable courier company, but the item is damaged on the way. In this case, the trustee is not liable to compensate. 2. Investors in an investment fund authorise the funds manager to invest their funds according to his judgement within the limit specified in the contract. A fund manager (Muḍārib) cannot be held liable for losses to the capital if he adheres to the stipulation of the investment contract, follows the accepted investment practice and exercises due diligence in investing the muḍārabah capital

3. Employer provides equipment and goods for their employees to perform the job well. In the case of any damage happen to the equipment (employer’s property) that occur in the course of the employee doing their jobs, the employee areNegates not toLiability be held liable for that damage egal Maxims : Legal Permission Application in Islamic Financ

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ISF 2102

Besides the general natural legal permission, which is granted to all individuals to enjoy in normal circumstances, jurists have mentioned a number of urgent situations when one is also free from legal liability. 1. Dafʿ al-sāil - literally means to repel the attacker. - It is a self-defence situation, when one is forced to fight against a thief, or any other aggressors, who broke in one’s own property for stealing or any other harmful actions. - If the fighting resulted in the wounding or even the killing of the aggressor, one is exempted from any legal liability, such as the payment of the diyah or the blood money to the aggressor or to his family. 2. Attacked by an animal - Eg : angry bull - One is not to pay any compensation to the owner if one, to defend himself, killed the animal.

egal Maxims : Legal Permission Negates Liability

Exception

MAXIMS DEALING WITH PEOPLE’S RIGHT

1ST LEGAL MAXIMS DEALING WITH PEOPLE’S RIGHT

‫ا هلدوجدتههارد ل ه يرن وهقرض دبدمثولدده‬ Ijtihad is not set aside by another Ijtihad

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‫م‬ ‫م‬ ‫ق‬ ‫م‬ ‫ن‬ ‫ي‬ ‫ل‬ ‫د‬ ‫ها‬ ‫ت‬ ‫ج‬ ‫ل‬ ‫ ا‬Ijtihad is not set aside by another ‫ن‬ ‫مث سل نهن‬ ‫ض بن ن‬ ‫س‬ ‫ن‬ ‫ح‬ ‫ح‬ ‫س‬ ‫ح‬ ‫م‬ Ijtihad

• Al-Ijtihad – Derived from the verb jahada/yajhadu which means to strive or put oneself out. – Means the exertion of effort to arrive at a considered judgment about the rule of the Shari’ah on a particular matter

• Yunqadu – The passive voice of the verb naqada/yanqidu which has range of meaning: • To demolish, tear down • To violate • To repeal, revoke

had is not set aside by another Ijtihad

Translation of Arabic

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Meaning of the maxim Ijtihad if it has been properly conducted, cannot be reversed by another person’s ijtihad or even by later ijtihad by the same mujtahid.

had is not set aside by another Ijtihad

Definition

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• From the consensus of the Companions of the Prophet Muhammad S.A.W – Ibn al-Sabbagh narrated that ‘Umar ibn al-Khattab gave verdicts in many cases that differed from verdicts that Abu Bakr al-Siddiq had issued in similar cases, however, ‘Umar did not reopen the cases already settledby Abu Bakr to repeal Abu Bakr’s verdicts. Likewise, ‘Umar ibn al-Khattab gave ruling on an issue of inheritance in which he revised his previous ijtihad and stated:

‫م‬ ‫ت نل س م م‬ ‫ضي سمنا‬ ‫ما قم م‬ ‫ما قم م‬ ‫ى م‬ ‫ى م‬ ‫ ومهمذ نهن ع مل س‬،‫ضي سمنا‬ ‫ك ع مل س‬

“That was what we judged previously, and this is what we have decided (in the present case)”

had is not set aside by another Ijtihad

Legal sources of the maxim

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Applications of Maxim in Fiqh:

A person prays in a location that is new to him and makes ijtihad to determine the direction of the qiblah. When the time for the next prayer begins, he decides that the qiblah is really in different direction. According to the majority of scholars, he does not need to repeat the prayer because it would mean overturning his earlier ijtihad.

had is not set aside by another Ijtihad

Application in Fiqh

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Application of Maxim in Islamic Banks:

The Shari’ah supervisory board of a stock exchange listed a company as Shari’ah compliant. Later the Shari’ah supervisory board, based on new evidence, change its ruling and deemed the company to be Shari’ah non-compliant. Any transaction involving shares of the company prior to the new ruling are deemed valid, and the shareholders have the right to profits acquired during that period.

had is not set aside by another Ijtihad

Application in Islamic Ban

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2ND MAIN LEGAL MAXIMS DEALING WITH PEOPLE’S RIGHT

‫عرلى ال تررسعيترسة رمن بيوط ن‬ ‫رالتتررص تبربف ر‬ ‫سبال يرميصل ررحسة‬ ACTS OF THOSE WITH AUTHORITY OVER PEOPLE MUST TAKE INTO ACCOUNT THE INTEREST OF PEOPLE

Acts ‫و‬of ‫و‬those ‫و‬with ‫و‬authority ‫و‬over ‫و‬people ‫و‬ must ‫و‬take ‫و‬into ‫و‬account ‫و‬the ‫و‬interest ‫و و‬of ‫و‬people

Definition ‫و‬

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This ‫و‬maxim ‫و‬relates ‫و‬to:  Public ‫و‬service  Politics  Management  Organization ‫و‬  Particularly ‫و‬in ‫و‬managing ‫و‬and ‫و‬organizing ‫و‬the ‫و‬State It ‫و‬gives ‫و‬guidance ‫و‬to ‫و‬any ‫و‬party ‫و‬responsible ‫و‬for ‫و‬managing ‫و‬the ‫و‬ affairs ‫و‬of ‫و‬others The ‫و‬maxim ‫و‬denotes ‫و‬that ‫و‬the ‫و‬action ‫و‬of ‫و‬anyone ‫و‬who ‫و‬is ‫و‬ guardian ‫و‬over ‫و‬something ‫و‬or ‫و‬someone ‫و‬should ‫و‬be ‫و‬subject ‫و‬to ‫و‬ fulfilling ‫و‬the ‫و‬legitimate ‫و‬interests ‫و‬of ‫و‬those ‫و‬for ‫و‬whom ‫و‬they ‫و‬are ‫و‬ responsible

Acts ‫و‬of ‫و‬those ‫و‬with ‫و‬authority ‫و‬over ‫و‬people ‫و‬ must ‫و‬take ‫و‬into ‫و‬account ‫و‬the ‫و‬interests ‫و‬of ‫و‬the ‫و‬people

Definition ‫و‬

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The ‫و‬concept ‫و‬was ‫و‬articulated ‫و‬by ‫و‬Sayydina ‫و‬Umar ‫و‬bin ‫و‬al-Khatab ‫و‬when ‫و‬he ‫و‬was ‫و‬ the ‫و‬ruler ‫و‬of ‫و‬the ‫و‬Islamic ‫و‬state: “ I consider myself, with regard to the wealth of Allah (public funds), -as having the same status as the guardian of an orphan; -if I have a personal need, I take from it; -then, when my financial situation eases, I return it; -and if I am not in need, I refrain [altogether].” This ‫و‬is ‫و‬probably ‫و‬the ‫و‬inspirations ‫و‬for ‫و‬Imam ‫و‬al-Shafii ‫و‬statement: “ The status of a leader vis-à-vis his citizens is like the status of a guardian vis-à-vis an orphan Imam ‫و‬al-Subki ‫و‬expressed ‫و‬the ‫و‬principle ‫و‬in ‫و‬broader ‫و‬terms: “Anyone who acts on behalf of another should act based on the[rules of] maslahah(benefit)”

Acts ‫و‬of ‫و‬those ‫و‬with ‫و‬authority ‫و‬over ‫و‬people ‫و‬ must ‫و‬take ‫و‬into ‫و‬account ‫و‬the ‫و‬interest ‫و و‬of ‫و‬people

Definition

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WORDS ‫و‬

MEANING ‫و‬

Ra’iyyah ‫و‬

 ‘To ‫و‬graze’ ‫و‬because ‫و‬grazing ‫و‬animals ‫و‬need ‫و‬ to ‫و‬be ‫و‬watched ‫و‬and ‫و‬protected ‫و‬  ‘To ‫و‬tend ‫(و‬a ‫و‬flock ‫و‬of ‫و‬animals) ‫و‬and  ‘To ‫و‬guard ‫و‬, ‫و‬protect ‫و‬or ‫و‬take ‫و‬under ‫و‬one’s ‫و‬ wings Literally:  Subjects ‫و‬or ‫و‬citizens ‫و‬because ‫و‬they ‫و‬are ‫و‬ supposed ‫و‬to ‫و‬be ‫و‬under ‫و‬the ‫و‬care ‫و‬and ‫و‬ protection ‫و‬of ‫و‬the ‫و‬ruler ‫و‬

Tasarruf ‫و‬

 To ‫و‬act ‫و‬independently, ‫و‬to ‫و‬dispose ‫و‬freely, ‫و‬to ‫و‬ administer(freely)  Action, ‫و‬behavior ‫و‬or ‫و‬conduct

Acts ‫و‬of ‫و‬those ‫و‬with ‫و‬authority ‫و‬over ‫و‬people ‫و‬ must ‫و‬take ‫و‬into ‫و‬account ‫و‬the ‫و‬interest ‫و و‬of ‫و‬people

Explanation ‫و‬of ‫و‬the ‫و‬Maxim ‫و‬

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The ‫و‬general ‫و‬meaning ‫و‬of ‫و‬this ‫و‬maxim ‫و‬is ‫و‬that ‫و‬those ‫و‬who ‫و‬have ‫و‬authority ‫و‬over ‫و‬others, ‫و‬ either ‫و‬public ‫و‬or ‫و‬private, ‫و‬their ‫و‬actions ‫و‬and ‫و‬decisions ‫و‬should ‫و‬create ‫و‬benefit ‫و‬for ‫و‬those ‫و‬ in ‫و‬their ‫و‬care ‫و‬and ‫و‬secure ‫و‬their ‫و‬best ‫و‬interests. Types ‫و‬of ‫و‬authority: 1) Public ‫(و‬ammah) ‫و –و‬involves ‫و‬legislations ‫و &و‬decisions ‫و‬to ‫و‬manage ‫و‬the ‫و‬affairs ‫و‬of ‫و‬ the ‫و‬community ‫و‬as ‫و‬a ‫و‬whole 2) Private ‫(و‬khassah) ‫و –و‬authority ‫و‬which ‫و‬allows ‫و‬the ‫و‬holder ‫و‬to ‫و‬dispose ‫و‬of ‫و‬an ‫و‬asset ‫و &و‬ or ‫و‬manage ‫و‬the ‫و‬affairs ‫و‬of ‫و‬another ‫و‬person. ‫و‬

Acts ‫و‬of ‫و‬those ‫و‬with ‫و‬authority ‫و‬over ‫و‬people ‫و‬ must ‫و‬take ‫و‬into ‫و‬account ‫و‬the ‫و‬interest ‫و و‬of ‫و‬people

Explanation ‫و‬of ‫و‬the ‫و‬Maxim ‫و‬

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Conditions ‫و‬for ‫و‬the ‫و‬authority ‫و‬to ‫و‬act ‫و‬on ‫و‬behalf ‫و‬of ‫و‬others: 1) ‫و‬To ‫و‬exercise ‫و‬authority ‫و‬over ‫و‬a ‫و‬Muslim, ‫و‬a ‫و‬person ‫و‬should ‫و‬have ‫و‬the ‫و‬following ‫و‬ characteristics: ‫و‬      

Islam Puberty Sanity Independence Knowledge ‫و‬of ‫و‬the ‫و‬relevant ‫و‬Shariah ‫و‬rules ‫و‬ The ‫و‬ability ‫و‬to ‫و‬achieve ‫و‬the ‫و‬objectives ‫و‬of ‫و‬the ‫و‬authority ‫و‬one ‫و‬is ‫و‬supposed ‫و‬to ‫و‬ exercise

2) ‫و و‬The ‫و‬actions ‫و‬and ‫و‬decisions ‫و‬of ‫و‬the ‫و‬authority ‫و‬should ‫و‬bring ‫و‬benefit ‫و‬to ‫و‬those ‫و‬ who ‫و‬are ‫و‬under ‫و‬that ‫و‬authority

Acts ‫و‬of ‫و‬those ‫و‬with ‫و‬authority ‫و‬over ‫و‬people ‫و‬ must ‫و‬take ‫و‬into ‫و‬account ‫و‬the ‫و‬interest ‫و و‬of ‫و‬people

Explanation ‫و‬of ‫و‬the ‫و‬Maxim ‫و‬

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1) Al-Quran : Surah Hud 11:88 Allah quotes Prophet Shuayb, who tells his people:

He said, ‘O my people! Have you considered, should I stand on a manifest proof from my Lord, who has provided me a good provision from Himself? I do not wish to oppose you by what I forbid you. I only desire to put things in order, as far as I can, and my success lies only with Allah: in Him I have put my trust, and to Him I turn penitently.

Acts ‫و‬of ‫و‬those ‫و‬with ‫و‬authority ‫و‬over ‫و‬people ‫و‬ must ‫و‬take ‫و‬into ‫و‬account ‫و‬the ‫و‬interest ‫و و‬of ‫و‬people

Authority ‫و‬of ‫و‬the ‫و‬Maxim

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2) Sunnah : Sahih Muslim 6:9 hadith no. 4834 As for Sunnah, Allah’s messenger s.a.w said:

‫د‬ «،‫عبولد يهوستهوردعيده اللره هردعيكهةة‬ ‫ن‬ ‫م‬ ‫هما‬ ‫و‬ ‫ه‬ ،‫غا ك ةش لدهردعيكهدتده‬ ‫ت هورههو ه‬ ‫ت يهووهم يهرمو ر‬ ‫يهرمو ر‬ ‫ه‬ ‫جن كههة‬ ‫عل هيوده ال هو‬ ‫ه‬ ‫الل‬ ‫م‬ ‫ر‬ ‫ح‬ ‫لا‬ ‫ه‬ ‫»دإ ك ه كه‬. ‫ر ه‬ “ if any slave [of Allah] whom Allah makes responsible for the

care of citizens dies on the day he dies – misleading them, Allah will prohibit him from Paradise”

Acts ‫و‬of ‫و‬those ‫و‬with ‫و‬authority ‫و‬over ‫و‬people ‫و‬ must ‫و‬take ‫و‬into ‫و‬account ‫و‬the ‫و‬interest ‫و و‬of ‫و‬people

Authority ‫و‬of ‫و‬the ‫و‬Maxim

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ISF 2102

If ‫و‬a ‫و‬number ‫و‬of ‫و‬individuals ‫و‬are ‫و‬eligible ‫و‬to ‫و‬become ‫و‬ the ‫و‬guardian ‫و‬of ‫و‬an ‫و‬orphan, ‫و‬the ‫و‬judge ‫و‬should ‫و‬give ‫و‬ priority ‫و‬to ‫و‬the ‫و‬best ‫و‬qualified ‫و‬among ‫و‬them If ‫و‬an ‫و‬agent ‫و‬sells ‫و‬a ‫و‬good ‫و‬for ‫و‬a ‫و‬price ‫و‬clearly ‫و‬lower ‫و‬ than ‫و‬the ‫و‬market ‫و‬price, ‫و‬he ‫و‬is ‫و‬liable ‫و‬for ‫و‬the ‫و‬difference ‫و‬ because ‫و‬he ‫و‬has ‫و‬not ‫و‬acted ‫و‬in ‫و‬the ‫و‬interest ‫و‬of ‫و‬his ‫و‬ principal It ‫و‬is ‫و‬not ‫و‬permissible ‫و‬for ‫و‬the ‫و‬authorities ‫و‬to ‫و‬appoint ‫و‬ an ‫و‬unqualified ‫و‬person ‫و‬to ‫و‬be ‫و‬the ‫و‬leader ‫و‬of ‫و‬prayers ‫و‬ (imam) ‫و‬

Acts ‫و‬of ‫و‬those ‫و‬with ‫و‬authority ‫و‬over ‫و‬people ‫و‬ must ‫و‬take ‫و‬into ‫و‬account ‫و‬the ‫و‬interest ‫و و‬of ‫و‬people

Application ‫و‬of ‫و‬the ‫و‬Maxim ‫و‬in ‫و‬Fiqh ‫و‬

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ISF 2102

In ‫و‬distributing ‫و‬money ‫و‬from ‫و‬the ‫و‬public ‫و‬treasury ‫و‬ (baitulmal), ‫و‬the ‫و‬authority ‫و‬should ‫و‬prioritize ‫و‬giving ‫و‬ assistance ‫و‬to ‫و‬the ‫و‬needy ‫و و‬

The ‫و‬central ‫و‬bank ‫و‬should ‫و‬issue ‫و‬policies ‫و‬and ‫و‬ guidelines ‫و‬that ‫و‬will ‫و‬boost ‫و‬the ‫و‬development ‫و‬of ‫و‬the ‫و‬ Islamic ‫و‬banking ‫و‬and ‫و‬finance ‫و‬industry The ‫و‬takaful ‫و‬fund ‫و‬should ‫و‬be ‫و‬covered ‫و‬by ‫و‬re-takaful ‫و‬ in ‫و‬order ‫و‬to ‫و‬share ‫و‬the ‫و‬risk ‫و‬and ‫و‬avoid ‫و‬the ‫و‬expenses ‫و‬ of ‫و‬an ‫و‬unexpectedly ‫و‬large ‫و‬number ‫و‬of ‫و‬claims ‫و‬ causing ‫و‬a ‫و‬deficit ‫و‬in ‫و‬the ‫و‬fund ‫و‬

Acts ‫و‬of ‫و‬those ‫و‬with ‫و‬authority ‫و‬over ‫و‬people ‫و‬ must ‫و‬take ‫و‬into ‫و‬account ‫و‬the ‫و‬interest ‫و و‬of ‫و‬people

Application ‫و‬of ‫و‬the ‫و‬Maxim ‫و‬in ‫و‬Islamic ‫و‬Finance

3RD MAIN LEGAL MAXIMS DEALING WITH PEOPLE’S RIGHT

‫جورز هالتكههص كرررف دفوي دمل ودك ال وهغيودر دبل اد وذلن‬ ‫ل يه ر‬ IT IS IMPERMISSIBLE TO DISPOSE OF ANOTHER’S PROPERTY WITHOUT AUTHORIZATION

Qawa‘id al-Fiqhiyyah

ISF 2102

1 ‫جورز هالتكههص رررف دفي دمل ودك ال وهغيدر دبل اد وذلن‬ ‫ي‬ ‫ل‬ ‫ر‬ ‫و‬ ‫ه‬ ‫و‬ ‫ك‬ 3 It ‫و‬is ‫و‬impermissible ‫و‬to ‫و‬dispose ‫و‬of ‫و‬ 1 another’s ‫و‬property ‫و‬without ‫و‬authorization 5 1  This ‫و‬maxim ‫و‬highlight ‫و‬the ‫و‬Shariah’s ‫و‬strong ‫و‬endorsement ‫و‬ of ‫و‬the ‫و‬concept ‫و‬of ‫و‬private ‫و‬property, ‫و‬but ‫و‬it ‫و‬also ‫و‬lays ‫و‬down ‫و‬ that ‫و‬it ‫و‬is ‫و‬not ‫و‬unlimited ‫و‬right ‫و‬as ‫و‬it ‫و‬may ‫و‬be ‫و‬overridden ‫و‬by ‫و‬ 2 the ‫و‬requirements ‫و‬of ‫و‬the ‫و‬Shariah. 0

m 33: It is permissible to dispose of another’s property without authorization Title

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‫صرر ف‬ (Tasarruf) ‫ف‬ ‫رراتلت ر‬  Means: ‫و‬Free ‫و‬disposal ‫و‬  More ‫و‬generally ‫و‬: ‫و‬action, ‫و‬behaviour ‫و‬or ‫و‬conduct.  Technically: ‫و و‬the ‫و‬willing ‫و‬acts ‫و‬of ‫و‬a ‫و‬person ‫و‬that ‫و‬provide ‫و‬ the ‫و‬basis ‫و‬legal ‫و‬rulings.

m 33: It is permissible to dispose of another’s property without authorization Explanation

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(Milk) ‫ضمللضكو‬    

Originally ‫و‬an ‫و‬infinitive ‫و‬of ‫و‬the ‫و‬verb ‫و‬malaka/yamliku ‫و‬ To ‫و‬possess ‫و‬or ‫و‬own To ‫و‬take ‫و‬possession ‫و‬or ‫و‬acquire Also ‫و‬common ‫و‬noun ‫و‬meaning: ‫و‬Property, ‫و‬possessions ‫و‬or ‫و‬ wealth  Islam ‫و‬recognizes ‫و‬that ‫و‬individuals ‫و‬have ‫و‬the ‫و‬right ‫و‬to ‫و‬own ‫و‬real ‫و‬ estate ‫و‬and ‫و‬movable ‫و‬property ‫و‬and ‫و‬that ‫و‬ownership ‫و‬gives ‫و‬them ‫و‬ the ‫و‬exclusive ‫و‬right ‫و‬to ‫و‬enjoy ‫و‬the ‫و‬usufruct ‫و‬of ‫و‬their ‫و‬property ‫و‬ and ‫و‬to ‫و‬dispose ‫و‬it.  However, ‫و‬human ‫و‬ownership ‫و‬is ‫و‬a ‫و‬transitory ‫و‬and ‫و‬limited ‫و‬ phenomenon. ‫و‬The ‫و‬ultimate ‫و‬owner ‫و‬is ‫و‬Allah

m 33: It is permissible to dispose of another’s property without authorization Explanation

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ISF 2102

(Idhn) ‫ضرا لذننو‬  Permission ‫و‬or ‫و‬authorization  The ‫و‬fact ‫و‬that ‫و‬idhn ‫و‬is ‫و‬mentioned ‫و‬in ‫و‬the ‫و‬maxim ‫و‬ without ‫و‬the ‫و‬possession ‫و‬pronoun ‫(و‬His) ‫و‬expand ‫و‬the ‫و‬ meaning ‫و‬of ‫و‬authorization ‫و و‬to ‫و‬include ‫و‬not ‫و‬only ‫و‬ permission ‫و‬of ‫و‬the ‫و‬owner ‫و‬but ‫و‬also ‫و‬the ‫و‬authorization ‫و‬of ‫و‬ the ‫و‬Lawgiver.  General ‫و‬meaning ‫و‬of ‫و‬the ‫و‬maxim ‫و‬is: ‫“و‬no ‫و‬one ‫و‬has ‫و‬the ‫و‬ right ‫و‬to ‫و‬use ‫و‬the ‫و‬property ‫و‬of ‫و‬another ‫و‬without ‫و‬the ‫و‬ permission ‫و‬of ‫و‬the ‫و‬owner ‫و‬or ‫و‬the ‫و‬permission ‫و‬of ‫و‬the ‫و‬ Lawgiver”

m 33: It is permissible to dispose of another’s property without authorization Explanation

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ISF 2102

Rule in disposing of another’s property Owner’s permission -Basic ‫و‬rule ‫و‬in ‫و‬disposing ‫و‬of ‫و‬

another’s ‫و‬property ‫و‬is ‫و‬that ‫و‬the ‫و‬ owner’s ‫و‬permission ‫و‬must ‫و‬be ‫و‬ sought ‫و‬and ‫و‬attained - ‫و‬Authorisation ‫و‬may ‫و‬be ‫و‬ expressed ‫و‬orally, ‫و‬in ‫و‬writing, ‫و‬ by ‫و‬gesture ‫و‬or ‫و‬any ‫و‬other ‫و‬act ‫و‬ that ‫و‬signifies ‫و‬his ‫و‬consent -If ‫و‬the ‫و‬customary ‫و‬practice ‫و‬of ‫و‬ people ‫و‬in ‫و‬such ‫و‬situation ‫و‬is ‫و‬ that ‫و‬silence ‫و‬indicates ‫و‬ consent, ‫و‬the ‫و‬silence, ‫و‬too, ‫و‬is ‫و‬a ‫و‬ way ‫و‬for ‫و‬the ‫و‬owner ‫و‬to ‫و‬affirm ‫و‬ the ‫و‬contract

Authorisation that provided by Shariah -Based ‫و‬on ‫و‬the ‫و‬concept ‫و‬that ‫و‬all ‫و‬wealth ‫و‬ ultimately ‫و‬belongs ‫و‬to ‫و‬Allah ‫و‬and ‫و‬He ‫و‬ thus ‫و‬has ‫و‬the ‫و‬right ‫و‬to ‫و‬lay ‫و‬down ‫و‬rules ‫و‬ about ‫و‬the ‫و‬way ‫و‬wealth ‫و‬acquired ‫و‬and ‫و‬ spend. ‫و‬ Example: ‫و‬If ‫و‬a ‫و‬Muslim ‫و‬owes ‫و‬zakat ‫و‬but ‫و‬ refuses ‫و‬to ‫و‬pay ‫و‬it ‫و‬in ‫و‬a ‫و‬situation ‫و‬in ‫و‬ which ‫و‬the ‫و‬State ‫و‬collects ‫و‬it, ‫و‬the ‫و‬view ‫و‬of ‫و‬ ‫و‬many ‫و‬Scholars ‫و و‬is ‫و‬that ‫و‬the ‫و‬Muslims ‫و‬ State ‫و‬should ‫و‬take ‫و‬it ‫و‬by ‫و‬force ‫و‬and ‫و‬ distribute ‫و‬it ‫و‬among ‫و‬eligible ‫و‬recipients

m 33: It is permissible to dispose of another’s property without authorization Explanatio

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1 Disposal by Speech (Tasarruf qawli) 3 1 5 1 Disposal by act (Tasarruf fi’li) 2 0

Verbal ‫ و‬disposal ‫ و‬is ‫ و‬done ‫ و‬by ‫ و‬conducting ‫ و‬a ‫ و‬contract ‫ و‬such ‫ و‬as ‫ و‬selling ‫ و‬another’s ‫ و‬property, ‫و‬ giving ‫و‬it ‫و‬as ‫و‬a ‫و‬gift, ‫و‬or ‫و‬leasing ‫و‬it. ‫و‬ Example: ‫ و‬The ‫ و‬dominant ‫ و‬opinion ‫ و‬in ‫ و‬contemporary ‫ و‬application ‫ و‬is ‫ و‬that ‫ و‬its ‫ و‬validity ‫ و‬is ‫و‬ contingent ‫ و‬upon ‫ و‬the ‫ و‬owner’s ‫ و‬permission. ‫ و‬If ‫ و‬he ‫ و‬permits ‫ و‬it ‫ و‬after ‫ و‬the ‫ و‬fact, ‫ و‬the ‫ و‬contract ‫ و‬is ‫و‬ deemed ‫و‬valid, ‫و‬otherwise ‫و‬is ‫و‬not. ‫و‬If ‫و‬disposal ‫و‬is ‫و‬done ‫و‬without ‫و‬the ‫و‬owner’s ‫و‬permission ‫و‬and ‫و‬is ‫و‬ followed ‫ و‬by ‫ و‬delivery ‫ و‬of ‫ و‬the ‫ و‬property, ‫ و‬it ‫ و‬becomes ‫ و‬disposal ‫ و‬by ‫ و‬act ‫ و‬and ‫ و‬is ‫ و‬considered ‫و‬ usurpation. ‫و‬

Minimal ‫و‬level ‫و‬of ‫و‬disposal ‫و‬by ‫و‬act ‫و‬to ‫و‬take ‫و‬ possession ‫و‬of ‫و‬the ‫و‬property. -Can ‫و‬also ‫و‬involve ‫و‬making ‫و‬physical ‫و‬ changes ‫و‬to ‫و‬it.

Example: ‫و‬If ‫و‬either ‫و‬is ‫و‬done ‫و‬with ‫و‬the ‫و‬ previous ‫و‬permission ‫و‬of ‫و‬the ‫و‬owner, ‫و‬the ‫و‬ disposer ‫و‬is ‫و‬an ‫و‬agent ‫و‬and ‫و‬his ‫و‬act ‫و‬is ‫و‬valid. ‫و‬If ‫و‬ it ‫و‬is ‫و‬done ‫و‬without ‫و‬the ‫و‬owner’s ‫و‬permission, ‫و‬ the ‫و‬disposer ‫و‬is ‫و‬regarded ‫و‬as ‫و‬a ‫و‬ ghasib( ‫و‬usurper) ‫و‬and ‫و‬is ‫و‬held ‫و‬responsible ‫و‬for ‫و‬ any ‫و‬damage ‫و‬caused. ‫و‬

permissible to dispose of another’s property without authorizationTypes of Dispos

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Surah al-Baqarah (2):188

“ ‫و‬Do not usurp one another’s property by unjust means nor offer ‫و‬it ‫و‬to ‫و‬judges ‫و‬so ‫و‬that ‫و‬you ‫و‬may ‫و‬devour ‫و‬knowingly ‫و‬ and ‫و‬unjustly ‫و‬a ‫و‬portion ‫و‬of ‫و‬the ‫و‬goods ‫و‬of ‫و‬others”.

permissible to dispose of another’s property without authorization

The authorit

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Musnad Ahmad, 5:72, hadith no. 20714

1 3 “Listen! ‫و‬Do ‫و‬not ‫و‬wrong ‫و و‬one ‫و‬another! ‫و‬Listen! ‫و‬Do ‫و‬not ‫و‬wrong ‫و‬one ‫و‬ another! ‫و‬Listen! ‫و‬Do ‫و‬not ‫و‬wrong ‫و‬another ‫و‬one ‫و‬another! ‫و‬No one’s 1 property is lawful [to another] except with his freely given consent 5 1 Listen! ‫و‬If ‫و‬anyone ‫و‬oppresses ‫و‬a ‫و‬non-Muslim ‫و‬living ‫و‬peacefully ‫و‬ 2 among ‫و‬Muslims, ‫و‬or ‫و‬deprives ‫و‬him, ‫و‬or ‫و‬requires ‫و‬of ‫و‬him ‫و‬something ‫و‬ beyond ‫و‬his ‫و‬capacity, ‫و‬or ‫و‬takes ‫و‬anything ‫و‬from ‫و‬him ‫و‬without ‫و‬his ‫و‬ 0 freely ‫و‬given ‫و‬consent, ‫و‬I ‫و‬will ‫و‬argue ‫و‬against ‫و‬him ‫و‬on ‫و‬the ‫و‬Day ‫و‬of ‫و‬

 As for the Sunnah, Allah’s Messenger said, during a sermon at the Farewell Pilgrimage:

Sunan Abu Dawud, 3:136, hadith no. 3054; graded sahih by al- Albani in Sahih Sunan Abu Dawud

judgment.

permissible to dispose of another’s property without authorization

The authorit

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ISF 2102 APPLICATION OF THE MAXIM IN FIQH

A number of heirs inherit a valuable piece of land. It is not allowed for some heirs to force the other heirs to sell their share of the land because this would be tantamount to dispose it without their consent

The lessee of a house is not allowed to make changes to the building without the owner’s approval because he would be disposing of another’s property without authorization

If one person loans a car to another on condition that he may drive it, the borrower is not allowed to let anyone else to take the wheel because to do so would be disposal of another’s property without authorization.

permissible to dispose of another’s property without authorization

Application

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APPLICATION OF THE MAXIM IN ISLAMIC FINANCE

Islamic banks are not entitled to use wealth placed with them by depositors for safekeeping ( Wadiah yad al-amanah)

If the rabb al-mal imposes restrictions on the way the mudarib uses the mudarabah capital, the mudarib is obliged of another’s property without authorization, which would make the mudarib financially liable for any loss to the capital

The board of directors of an Islamic bank is not allowed to make charitable donations from the bank’s income without the shareholder’s approval because the bank’s profits belong to shareholders

permissible to dispose of another’s property without authorization

Application

MAXIMS DEALING WITH OTHER FORMS OF MU’AMALAH

1ST MAXIMS DEALING WITH OTHER FORMS OF MU’AMALAH

‫حهرارم‬ ‫حهرارم ه‬ ‫ب ال و ه‬ ‫حل هرل هوال ه‬ ‫دإهذا اوجتههمهع ال و ه‬ ‫غل ه ه‬ IF PERMISSIBILITY AND PROHIBITION COINCIDE, PROHIBITION PREVAILS

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DEFINITION Important guideline for resolving situations of uncertain validity where an act is valid or not because of the conflict between permissibility and prohibition.  Halal

: anything that has been permitted : encompasses wajib(obligatory) mandub(recommended) mubah(permissible) and makruh( disliked )

 Haram : anything that has been prohibited  Ijtama’a : to gather, combine, collect, unify  Things can be halal/haram in consideration of the act associated with them (carrion, blood, and the flesh of swine have been made haram = haram to eat)

permissibility and prohibition coincide, prohibition prevails

Definition

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Doubtful/Ambiguous when it is difficult to determine if a given act is lawful or unlawful Causes Of Ambiguity

 Apparently conflicting evidence (different opinions)  Mixing the substances that are Halal with substances that are h

1) Inseparable : impurity like urine that fall into clean water and its characteristics : impurity like urine that fall into clean water a changes its characteristics (remain pure if su 2) Separable

: mixing of animals : the meat that have been properly slaughte

with

the meat killed by electrocution is unlawful

permissibility and prohibition coincide, prohibition prevails

Definition

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ISF 2102

1 ‫ت ل يهوعل هرم هها ك هدثيةر دمون‬ ‫حهرا رم به ديك ةن هوبهيون هرهما ه رمهشبكههها‬ ‫اا وهحل رل به ديك ةن هوال و‬ ‫ة‬ ‫ه‬ 3 ‫ال كهنادس هفمون اتكههقى ال ومهشبههادت استهبرأ ه لددديدنده ودعردضده ومون وهقع دفي‬ ‫هه ه ه‬ ‫ر كه‬ ‫ه‬ ‫ه و‬ ‫و وه‬ 2 ‫ال كرشبرهها دت كههرا لع يهور هعى هحوو هل ال ودح همى ريودش رك أ هون يرهوادقهع ره هأل هودإ كهن‬ ‫ه‬ ‫ه‬ ‫ه‬ ‫د‬ ‫د‬ ‫د‬ ‫د‬ ‫د‬ ‫ه‬ ‫حادررمره‬ ‫م‬ ‫ه‬ ‫ض‬ ‫ر‬ ‫أ‬ ‫في‬ ‫ه‬ ‫ل‬ ‫ال‬ ‫مى‬ ‫ح‬ ‫ن‬ ‫إ‬ ‫أل‬ ‫لدك ر ك دل هملدلك دحةمى‬ ‫ك‬ ‫د‬ ‫ك‬ ‫ه‬ ‫و‬ ‫ه‬ ‫ه‬ 2 What is lawful is clear, and what is unlawful is clear, and the two there are doubtful matters (shubuhat) which 1 between many people do not know [the rule for]. Whoever avoids doubtful matters maintains clarity and assurance in practising 8 the religion and protecting his honor; but whoever falls into doubtful matters falls into the unlawful; like the shepherd who his flock around a preserve, letting it graze almost, 2 pastures but not quite, inside the boundary. Truly, every king has a Abu Hurayrah (RA) quoted Allah’s Messenger (SAW) as saying :

preserve that is off-limits to others, and truly Allah’s preserve permissibility prohibition coincide, prohibition prevails Legal sources of the maxi is His and prohibitions.

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Allah’s Messenger (SAW) said :

‫هدوع ما ه يهدريبرهك دإهلى ما ه ل يهدريبرهك‬ Leave that which causes you doubt for that which causes you no doubt

permissibility and prohibition coincide, prohibition prevails Legal sources of the maxi

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APPLICATION OF THE MAXIM IN FIQH 1) If a person sells a combination of the known and the unknown in a single transaction, the sale is invalid. (selling the bull and the fetus in the womb of pregnant cow at once) 2) A muslim is not permitted to marry a woman if it is not clear whether she is mahram or nonmahram to him. 3) If a pastry is made with shortening that contains lard, it makes the pastry haram.

permissibility and prohibition coincide, prohibition prevails

Application in fiqh

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APPLICATION OF THE MAXIM IN ISLAMIC FINANCE 1)If a bank offers some products that are Shari’ah compliant and others that are not. It cannot be called an Islamic Bank until it gets rid of the haram elements 2)If a company produces a variety of leather goods, some made from the skins of halal animals and some from pigskin, it is not permitted to purchase its shares

3)Takaful operator cannot extend takaful coverage to a company with mixed halal and haram permissibilityactivities. and prohibition coincide, prohibition prevails Application in Islamic Bank

2ND MAXIMS DEALING WITH OTHER FORMS OF MU’AMALAH

‫ه‬ ‫عهطارؤره‬ ‫إ‬ ‫م‬ ‫ر‬ ‫ح‬ ‫ه‬ ‫ذ‬ ‫خ‬ ‫ر‬ ‫هما هحررهم أ و ر ه ر ه د و‬ mā harumā akhdhuhu, harumā i‘tā’ūhu WHAT IS PROHIBITED TO TAKE IS ALSO PROHIBITED TO GIVE

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ISF 2102

‫م‬ ‫م‬ ‫مأ س‬ ‫خذ حه ح م‬ ‫ما م‬ ‫ححر م‬ ‫ححر م‬ ‫م إ نع سطاؤ حه ح‬ ‫م‬

(mā harumā akhdhuhu, harumā i‘tā’ūhu) ‫ حرم‬/ ‫يحرم‬

(verb) to be or become forbidden, pro

Hāram

an adjective derived from the verb

What is prohibited to take is also prohibited to give.

Definition- Arabic tr

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Explanation of the Maxim

• In Sharī‘ah terminology, it applies to every act that Lawmaker has strictly demanded to be avoided. • Avoidance of the prohibited carries a promise of reward • While committing a prohibited act carries a threat of punishment Ribā • Is clearly prohibited in Al-Qur’an • Although all of the Qur’anic prohibition of riba focus at taking it, • Sunnah also makes it clear that the giver, preparer and the witnesses of the contract are all sinful.

What is prohibited to take is also prohibited to give.

Explanation

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The Exceptions • •

Exceptions are for acts done for legitimate purpose and to protect legitimate rights recognized by Shārī‘ah. Exeptions are

1. A person confronted with a dire need of financing for medical treatment is allowed to take a loan in which he pays ribā if he does not find anyone willing to give him charity or an interest-free loan. 2. Iit is unlawful for persons in official positions, who receive salaries to perform their duties, to demand or accept bribes to do their jobs. – However, scholars allow an a case by case basis ; a person in urgent need to give such an official a “present” if this is the only way to secure his legitimate right on the condition that it is not done at the expense of anyone else’s legitimate right.

What is prohibited to take is also prohibited to give.

Exceptions

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1. Al-Quran Allah S.W.T says in Surah Al-Mā’idah verse 2 : ISF 2102

‫عرلى اﻹ ييﺛﻢس رﻭال يبعيدرﻭاسﻥ‬ ‫ﻯ رﻭﻻ ر تررعارﻭبنوا ر‬ ‫رﻭتررعارﻭبنوا ر‬ ‫عرلى ال يسبستر رﻭالتترقيرو ﻯ‬ “ Help one another to do what is right and good; do not help one another towards sin a nd hostility”

What is prohibited to take is also prohibited to give.

Sources of the Maxims

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ISF 2102

2. Hadith ‫ لعن ربسول ال صلى ال عليه وسلﻢ في‬:‫عن أنس بن مالك رضي ال عنه قال‬ ،‫ وبائعها‬،‫ وساقيها‬،‫ والمحمولة إليه‬،‫ وحاملها‬،‫ وشاربها‬،‫ ومعتصرها‬،‫ عاصرها‬:‫الخمر عشر نة‬ ‫ والمشتراة له‬،‫ والمشتري لها‬،‫وآكل ﺛمنها‬ “ Anas ibn Malik related that Allah’s Messenger (pbuh) cursed 10 people woth rrgard to wine : the onw who squeezes the juice [from the grapes], the one for whom it is squeezed, the one who transports it, the one to whom it is transported, the one who pours it, the seller, the one who consumes its price, the buyer, and the one for whom it is bought”

What is prohibited to take is also prohibited to give.

Sources of the Maxims

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ISF 2102

Application of the Maxim in Fiqh •

•

•

Some Muslims cultivate poppied, which yeild opium that is processed to make heroin. They would never think of using the drug themselves, but some of them argue that it is excusable ro produxw because it os exported to non-Mualim users. However, since it is prohibited to use it, it is prohibited to provide it to others. A muslim is not allowed to deliver a bribe, pork, alcohol or any non-halal item because it is prohibited to ise them, therefore, it is prohibited to help others to use them. It is prohibited to lie, likewise, it is prohibited to ask another to lie on one’s behalf.

What is prohibited to take is also prohibited to give.

Application in Fiqh

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ISF 2102

Application of the Maxim in Islamic Finance •

•

As an Islamic bankis not allowed to accept interest-bearing deposits, it is also not allowed to extend interest-bearing loans. The basic rule is that a takāful operator cannot underwrite Sharī’ah noncompliant companies, likewise it is not allowed to seek reinsurance with a conventional reinsurance company.

What is prohibited to take is also prohibited to give. Application in Islamic Financ

3rd MAXIMS DEALING WITH OTHER FORMS OF MU’AMALAH

‫هال كهتادبع هتادبع‬

What is auxiliary (to something in fact) is auxiliary (to it in ru

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Definition of Tabi’

‫هال ك هتادبع‬  The active participle of the verb taba’a / yatba’u which means to follow, to adhere, to comply, to pertain, to be subordinate, to be under someone’s authority.  If tabi’ is refer to a person, it means a follower.  If it refers to a thing, it means subsidiary, subordinate, secondary, auxiliary.

What is auxiliary (to something in fact) is auxiliary (to

Definition of Tabi

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ISF 2102

Islamic jurists divide tabi’ (auxiliary) into several categories.

1. Dependent and part of the principal. (i.e: the organ of an animal)

2. Can be separated from the principal. (i.e: fruit on a tree, fetus in the womb)

Categories of tabi’ 3. Auxiliary to another due to the necessity (i.e: key to a lock)

What is auxiliary (to something in fact) is auxiliary (to

4. The dependency is a contingent relationship (i.e: delivery of a purchased asset)

Categories of Tab

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Definition of the maxim

‫هال ك هتادبع هتادبع‬  Something that is auxiliary to something either in reality (haqiqi) or in legal (hukmi), will follow its principal in its ruling.  A thing that is attached to another thing cannot have a different Shari’ah ruling from the thing that it is attached to.  Referring to Article 48 of the Mejelle: “Judgement cannot be given separately for that which is auxiliary of another.”

What is auxiliary (to something in fact) is auxiliary (to it in

Definition

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ISF 2102

Examples: 1. Selling a lock would include the sale of keys as well. 2. The fetus in a pregnant animal is included in the sale of the animal.

What is auxiliary (to something in fact) is auxiliary (to

Examples of the Maxim

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ISF 2102

Authority of the Maxim The legality of the maxim relies on the Sunnah of the Prophet (pbuh), ijma’ (consensus) and logic. Refer to the hadith of the Prophet Muhammah (pbuh),

1.

“Ibn ‘Umar narrated that the Prophet (pbuh) said, “If someone sells a fertilized date palm to another, its fruit belongs to the seller unless the buyer stipulates otherwise.” • •

The fertilization took place while the tree belonged to the seller. If the fertilization took place after the sale of the tree, the buyer will have the right ownership on the fruit.

What is auxiliary (to something in fact) is auxiliary (to

Authority of The

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1 4 2. 1 3 9 3. 2 8

Another hadith of the Prophet Muhammah (pbuh),

“Do not suspend the milking of a sheep or camel before selling it. One who buys such an animal has two choices after milking it. If he is satisfied with it, he may keep it. But if he is dissatisfied, he should return it along with sa’ of dates.”

Abu Sa’id al-Khudri r.a related that they asked Allah’s Messenger (pbuh), “We slaughter a camel or cow or sheep, and we find a fetus inside it. Should we dispose of it, or [can] we eat it?” He told them, “Eat, if you wish, for its slaughtering [occurs by] the slaughtering of its mother.”

What is auxiliary (to something in fact) is auxiliary (to

Authority of The Maxim

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ISF 2102

1 Application of the Maxim in Fiqh 4 1 3 9 2 8

1. A person who buys real estate has the legal title over all the fixtures on the land, such as trees, crops, wells, etc. as well as the easements, unless the contracting parties exclude some of the items in the contract.

2. It is not allowed to conclude a contract for the sale of wool by itself while it is still on the sheep nor of milk while it is still in an animal’s udder.

What is auxiliary (to something in fact) is auxiliary (to

Application in Fiq

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1Application of the Maxim in Islamic Finance 4 1 3 9 2 8

1. In sukuk and shares, if receivables are less than a percentage stipulated by the standard-setting bodies, it is permissible to trade them in the secondary market because the receivables are considered auxiliary to the prevailing non-receivable assets.

2. It is permitted for a takaful operator to underwrite the risk of a company whose core business is halal but borrows from conventional banks.

What is auxiliary (to something in fact) is auxiliary (to

Application in Islamic Financ

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ISF 2102

3. If the core business of a company is Shari’ah compliant, but it

1 4 1 3 9 2 8

has some Shari’ah non-compliant activities below the threshold stipulated by the standard-setting body of that jurisdiction, it is permissible to trade its shares because the impermissible activities follow the ruling of the core activities, which are lawful. Corollaries of this maxim: 1. ‫هال كهتادبرع ي هوسرقرط دبرسرقودط الهمتوبروودع‬ If the principal is dropped, the auxiliary is also dropped. 2. ‫عهلى الهمتوبروودع‬ ‫هال كهتادبرع هلا ي رتههق كهدرم ه‬ The auxiliary does not take precedence over the principal. 3. ‫غي ودرهها‬ ‫ي روغتههفرر دفوي التكههوادبدع هما هلا ي روغتههفرر دفوي ه‬ Issues may be excused in auxiliaries that are not excused in other

What is auxiliary (to something in fact) is auxiliary (to

Corollaries

4TH MAXIMS DEALING WITH OTHER FORMS OF MU’AMALAH

‫إِهمذاض مبمطملض الششميءءض مبمطملض مم اض ِهفميض ِهضممِهنِهه‬ Idha batala al-shay’ batala ma fi dhimnihi

WHEN A MATTER BECOMES VOID, WHATEVER WITHIN IT IS ALSO VOID

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ISF 2102

‫م‬ ‫م‬ ‫م‬ ‫ش‬ ‫م‬ ‫م‬ ‫إِهذاض مبطلض الشميءءض مبطلض مم اض ِهفميض‬ ‫ِهضممِهنِهه‬ Idha batala al-shay’ batala ma fi dhimnihi WHEN A MATTER BECOMES VOID, WHATEVER WITHIN IT IS ALSO VOID

When ‫و‬a ‫و‬matter ‫و‬becomes ‫و‬void, ‫و‬ whatever ‫و‬within ‫و‬it ‫و‬is ‫و‬also ‫و‬void

Definition ‫و‬

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ISF 2102

EXPLANATION OF THE MAXIM • • •

if •

•

‫ ربرط ل‬: become null, invalid, inoperative, ineffective or become abolished ‫ضلمضنضه‬ ‫ ضفلي ض‬: included in it or falling under it definition : if a thing becomes invalid, anything associated with it or contained in it becomes invalid too : things that are included in a main thing will be void the main thing is ruled to be void Everything embedded in a sale contract is deemed invalid when the sale contract itself is rendered invalid due to prohibited elements that included in it. For example, if a sale is concluded for something that doesn’t exist, whatever that is associated with the sale agreement should not take effect.

When ‫و‬a ‫و‬matter ‫و‬becomes ‫و‬void, ‫و‬ whatever ‫و‬within ‫و‬it ‫و‬is ‫و‬also ‫و‬void

Definition ‫و‬

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ISF 2102

EXEMPTION TO THE MAXIM 1. Trading in intoxicants : it is invalid in nature. But in case a Muslim purchased liquor from a non-muslim, then he realized the sale contract is invalid because of this maxim, he has no right to demand a return of payment from the non-muslim seller. 2. Purchase an asset on credit : when someone purchase an asset on credit and pledged another asset with the condition that the seller should indemnify any damage and loss after the seller take possession of the collateral asset. In this case, the invalidity of the sale contract does not invalidate the mortgage contract associated with it. 3. Sold commodity : after the sale of commodity, the seller took possession of the price and delivered the commodity to the buyer but then discover that the money paid is counterfeit, he has no right to reacquire the commodity back from the buyer.

When ‫و‬a ‫و‬matter ‫و‬becomes ‫و‬void, ‫و‬ whatever ‫و‬within ‫و‬it ‫و‬is ‫و‬also ‫و‬void

Exemption ‫و‬of ‫و‬the ‫و‬Maxim ‫و‬

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ISF 2102

LEGAL SOURCES OF THIS MAXIM “Yahya related to me from Malik from Zayd ibn Aslam that Ibn Wala al-Misri asked Abdullah ibn Abbas about what is squeezed from the grapes. Ibn Abbas replied, "A man gave the Messenger of Allah, may Allah bless him and grant him peace, a small water-skin of wine. The Messenger of Allah, may Allah bless him and grant him peace, said to him, 'Don't you know that Allah has made it haram?' He said, 'No.' Then a man at his side whispered to him. The Messenger of Allah, may Allah bless him and grant him peace, asked what he had whispered, and the man replied, 'I told him to sell it.' The Messenger of Allah, may Allah bless him and grant him peace, said, 'The One who made drinking it haram has made selling it haram.' The man then opened the water-skins and poured out what was in them ." - Al Muwatta

When ‫و‬a ‫و‬matter ‫و‬becomes ‫و‬void, ‫و‬ whatever ‫و‬within ‫و‬it ‫و‬is ‫و‬also ‫و‬void

Legal ‫و‬Source ‫و‬Of ‫و‬The ‫و‬Maxim ‫و‬

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ISF 2102

APPLICATION OF THE MAXIM IN FIQH 1- If a non-muslim is forced to declare himself as a Muslim, his declaration cannot be considered as valid •

The ‫و‬coercion ‫و‬exercised ‫و‬on ‫و‬the ‫و‬non-muslim ‫و‬will ‫و‬invalidate ‫و‬his ‫و‬ declaration The thing included in a main thing

The main thing

When ‫و‬a ‫و‬matter ‫و‬becomes ‫و‬void, ‫و‬ whatever ‫و‬within ‫و‬it ‫و‬is ‫و‬also ‫و‬void

Becoming a Muslim

The act of declaring Islam

Application ‫و‬of ‫و‬the ‫و‬maxim ‫و‬

Qawa‘id al-Fiqhiyyah

ISF 2102

APPLICATION OF THE MAXIM IN FIQH

1 2- If, after a sale, it turns out that the purchased good 3 did not belong to the seller and the actual owner did not wants to sell the good, the sale contract is void 2 • Buyer’s ownership of the property and his obligation to pay 4 the price are also null and void The thing Ownership of 2 included in a the good main thing 1 The main thing The act of sale 8 When ‫و‬a ‫و‬matter ‫و‬becomes ‫و‬void, ‫و‬ whatever ‫و‬within ‫و‬it ‫و‬is ‫و‬also ‫و‬void

Application ‫و‬of ‫و‬the ‫و‬Maxim ‫و‬

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ISF 2102

APPLICATION OF THE MAXIM IN ISLAMIC FINANCE 1. a client enters into murabahah contract with an Islamic bank to purchase a property. It turns out the property sold to the client is located on a land that is marked as illegal to sale. Because of that, the sale transactionThe is void. The thing included legality of the

in a main thing

land

The main thing

Murabahah contract

When ‫و‬a ‫و‬matter ‫و‬becomes ‫و‬void, ‫و‬ whatever ‫و‬within ‫و‬it ‫و‬is ‫و‬also ‫و‬void

Application ‫و‬of ‫و‬the ‫و‬Maxim ‫و‬

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ISF 2102

APPLICATION OF THE MAXIM IN ISLAMIC FINANCE 2- A bank enters into a transaction without referring to its shariah advisory board. It turns out that the transaction is not permissible in islam. In this case, the transaction is null and void. Non-shari’ah

The thing included in a main thing

The main thing

When ‫و‬a ‫و‬matter ‫و‬becomes ‫و‬void, ‫و‬ whatever ‫و‬within ‫و‬it ‫و‬is ‫و‬also ‫و‬void

compliance transaction

The transaction

Application ‫و‬of ‫و‬the ‫و‬Maxim

5TH MAXIMS DEALING WITH OTHER FORMS OF MU’AMALAH

‫ا هل وهموشرغوورل هلا يروشهغرل‬ WHAT HAS ALREADY BEEN ENGAGED CANNOT BE ENGAGED BY ANOTHER

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ISF 2102

‫ا هل وهموشرغوورل هلا يروشهغرل‬

WHAT HAS ALREADY BEEN ENGAGED CANNOT BE ENGGAGED BY ANOTHER Shagala / yashghulu  to keep busy  to occupy, fill, hold  to engage

Mashghul ‫مشغول‬ Engaged Occupied

Maxims ‫و‬Dealing ‫و‬With ‫و‬Other ‫و‬Forms ‫و‬of ‫و‬Mu’amalat ‫و‬: ‫و‬What ‫و‬Has ‫و‬Already ‫و‬Been ‫و‬Engaged ‫و‬ Cannot ‫و‬Be ‫و‬Engaged ‫و‬By ‫و‬Another ‫و و و‬

Definition

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ISF 2102

Explanation of the MAXIM  When a legal ruling has been passed on a particular case, another legal ruling regarding the same issue cannot apply to it - because a single object cannot accommodate two different legal ruling on the same issue  For example : It is impermissible to enter into a second contract on the same subject matter of an existing contract.

 It is because, when the asset is engaged with the legal rulings and effects of one contract , it Maxims ‫و‬Dealing ‫و‬With ‫و‬Other ‫و‬Forms ‫و‬of ‫و‬Mu’amalat ‫و‬: ‫و‬What ‫و‬Has ‫و‬ cannot take the legalAlready ‫و‬Been ‫و‬Engaged ‫و‬ ruling of another contract Explanation of the Cannot ‫و‬Be ‫و‬Engaged ‫و‬By ‫و‬Another ‫و و و‬

Qawa‘id al-Fiqhiyyah

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ISF 2102

Inclusion of one contract into another is of TWO types :

1. A contract that has not yet become binding For example : a sale with an option period. If the seller sells the asset to a third party during the option period (zaman al-khiyār), the second contract terminates the first because the initiative for the subsequent contracts comes from the seller. 2. A contract that has become binding

l Classified into TWO subcategories : a) The second contract is executed with a third party rather than the second party. Means : a person pledges his asset to his creditor Maxims ‫و‬Dealing ‫و‬With ‫و‬Other ‫و‬Forms ‫و‬of ‫و‬Mu’amalat ‫و‬: ‫و‬What ‫و‬Has ‫و‬Already ‫و‬Been ‫و‬Engaged ‫و‬ Explanation of the Cannot ‫و‬Be ‫و‬Engaged ‫و‬By ‫و‬ butAnother ‫و و و‬ then sells it to a third party without

Qawa‘id al-Fiqhiyyah

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ISF 2102

a) The subsequent contract is executed with the same party as the first contract. Means : If the contracted subject matter is the same, the second contract is not valid

Maxims ‫و‬Dealing ‫و‬With ‫و‬Other ‫و‬Forms ‫و‬of ‫و‬Mu’amalat ‫و‬: ‫و‬What ‫و‬Has ‫و‬Already ‫و‬Been ‫و‬Engaged Cannot ‫و‬Be ‫و‬Engaged ‫و‬By ‫و‬Another ‫و و و‬

Explanation of the maxim

Qawa‘id al-Fiqhiyyah

ISF 2102

Authority of the MAXIM

1 The legal authority of this maxim is derived from the Sunnah and from logic. 3 Sunan Abū Dāwūd, 3:290, hadith no. 3463 2 The prophet (‫ ) ﷺ‬was quoted as saying : 3 ‫همون هباهع بهيوهعتهيودن دفوي بهيوهعلة هفل هره أ هووك هرسرههما أ هوو الدر كهبا‬ 1 “whoever sells two sales in one sales, he the right to the least advantageous of 3 hasthe two; otherwise [ it will be ] ribā” 0 Maxims ‫و‬Dealing ‫و‬With ‫و‬Other ‫و‬Forms ‫و‬of ‫و‬Mu’amalat ‫و‬: ‫و‬What ‫و‬Has ‫و‬Already ‫و‬Been ‫و‬Engaged Cannot ‫و‬Be ‫و‬Engaged ‫و‬By ‫و‬Another ‫و و و‬

Authority of the

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ISF 2102

Application of the Maxim in FIQH 1. It is not possible to make ihrām (intention) for umrah while one is at Mina performing Hajj. That is because each intention requires the person to perform deeds different from those of the other intention, and each set of deeds is done in a different place. 2. It is not possible to make intention to fast a naf fast during Ramadhan because the obligatory fast extends throughout every minutes of the daylight hours. 3. It is not allowed to fast during the Eid because

Shari’ah has designated the Eids to be days of festive gathering, which include eating and drinking.

Maxims ‫و‬Dealing ‫و‬With ‫و‬Other ‫و‬Forms ‫و‬of ‫و‬Mu’amalat ‫و‬: ‫و‬What ‫و‬Has ‫و‬Already ‫و‬Been ‫و‬Engaged Cannot ‫و‬Be ‫و‬Engaged ‫و‬By ‫و‬Another ‫و و و‬

Application in

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ISF 2102

Application of the Maxim in ISLAMIC FINANCE 1. Based on this maxim, it is impermissible to combine two contracts at the same time upon the same object. Hence, it is deemed illegal to combine ijārah and mudārabah contracts in one transaction over the same object-matter. Thus mudārib (entrepreneur) is not permitted to receive a wage for his duties as a mudārib because the mudārabah contract entitles him to a share profit of the enterprise.

2. Most of the products offered by Islamic financial institution combine at least two different contracts. To ensure that the combination of contracts in a new product is in line with shari’ah principles and does not contradict with this maxim, the combined contract must established separately, and hence, their legal Maxims ‫و‬Dealing ‫و‬With ‫و‬Other ‫و‬Forms ‫و‬of ‫و‬Mu’amalat ‫و‬: ‫و‬What ‫و‬Has ‫و‬Already ‫و‬Been ‫و‬Engaged ‫و‬ Application in Islamic consequences should take effect one after another, Cannot ‫و‬Be ‫و‬Engaged ‫و‬By ‫و‬Another ‫و و و‬

6TH MAXIMS DEALING WITH OTHER FORMS OF MU’AMALAH

‫صووِطرو لالحتوع اِطليِطقو وتةكلوةنو لِطزومةة‬ ‫لاوللوموولاِطعليةدو ِطب ة‬ ‫و‬

CONDITIONAL PROMISES ARE BINDING

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ISF 2102

Meaning One who makes performance of his promise conditional on the fulfillment of a condition by another party must fulfill his promise when the condition has been fulfilled. The condition that triggers fulfillment of the promise could be either performance of an act or abstention from an act. Mawa’id/Maw’id

Ta’liq

 ‫و و‬To ‫و‬promise  ‫و و‬Pledge  ‫و و و‬Engagement  ‫و و و‬Appointment

 ‫و و‬To ‫و‬hang  ‫و و‬Suspend  ‫و و‬Attach  ‫و و‬To ‫و‬make ‫و‬one ‫و‬thing ‫و و و و و و‬ conditional, ‫و‬dependent ‫و‬or ‫و‬ contingent ‫و‬upon ‫و‬another.

Lazimah  ‫و‬Inherent  ‫و‬Intrinsic  ‫و‬Imperative  ‫و‬Indispensable  ‫و‬Binding

Fiqh Terminology When applied to contracts, it means legally binding

onditional Promises Are Binding

Definition

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ISF 2102

MAJORITY OF SCHOLARS • The basic ruling on a promise to perform a lawful but non-obligatory act is that fulfilling it is highly recommended and failing to fulfill it is highly disliked. • Failure to fulfill a promise falls short of being sin. • If that is the case, then a simple promise is not legally binding. HANAFI SCHOOL • When a promise is made contingent upon a condition, the promise becomes legally binding when the condition is fulfilled. MALIKI SCHOOL • If a promise is linked to a cause, and the promisee commences the action which the promisor identified as the cause of the promise, the promisor is legally bound to fulfill the promise.  The maxim does not apply to any promise to do an act that is not legitimated by Shari’ah.  According to Al- Zarqa, the scope of the maxim is limited to sales and guarantees.

onditional Promises Are Binding

Explanation Of The Maxim

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ISF 2102

AUTHORITY OF THE MAXIM ‫و‬The ‫و‬authority ‫و‬for ‫و‬this ‫و‬maxim ‫و‬is ‫و‬derived ‫و‬from ‫و‬the ‫و‬Quran ‫و &و‬Sunnah:

Al-Quran

“O you who believe, why do you say what you do not do?” Surah Al-Saff (61):2 Hadith

‫آويةةو لاللةمون اِطفِطقو وث و‬ ‫لثثو إِطوذلاو وححدوثو وكوذوبو ووإِطوذلاو وووعودو أولخلووفو ووإِطوذلاو لالئةتِطمونو وخ اون‬

“ ‫و‬The ‫و‬signs ‫و‬of ‫و‬a ‫و‬hypocrite ‫و‬are ‫و‬three: ‫و‬When ‫و‬he ‫و‬speaks ‫و‬he ‫و‬lies; ‫و‬when ‫و‬he ‫و‬promises ‫و‬he ‫و‬ breaks ‫و‬his ‫و‬promise; ‫و‬and ‫و‬when ‫و‬he ‫و‬is ‫و‬entrusted ‫و‬he ‫و‬betrays ‫و‬the ‫و‬trust.” ‫و‬Sahih ‫و‬al-Bukhari

onditional Promises Are Binding

Authority of The Maxim

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ISF 2102 APPLICATION OF THE MAXIM IN FIQH

Party A sells a property to Party B for a price slightly higher than the market price. Party B regrets the sale and Party A promises B to cancel the sale if B can find someone who will pay the same price instead of B. If B can find alternate buyer, Party A must honour his promise A 3rd Party says to the creditor, “If the debtor does not pay his debt to you, I guarantee that I will settle it”. If the debtor fails to pay, the creditor can then claims his right from the guarantor If the seller promises the buyer that he will refund the price of the sold asset if it is discovered that the asset belongs to a 3rd party, he is obliged to honour the refund in case it is established that the seller is not the actual owner

onditional Promises Are Binding

Application Of The Maxim In Fiqh

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ISF 2102

APPLICATION OF THE MAXIM IN ISLAMIC FINANCE MURABAHAH The customer promises to buy a particular commodity from the bank after the bank has purchased it. The International Islamic Fiqh Academy has ruled that the customer has a legal obligation to honour his promise once the bank has completed the purchase. TAKAFUL If Takaful subscribers promise to share any surplus from the underwriting fund with the takaful operator at the end of the year, they are obliged to honour the promise in case a surplus is realised AITAB HOME FINANCING CONTRACT ( IJARAH MUNTAHIYAH BI AL-TAMLIK) The bank promises the client to transfer the ownership of the asset at the end of the contract period. If the client satisfies all the condition and pays the rent regularly, the bank is obliged to sell the property to the client

onditional Promises Are Binding

Application Of The Maxim In Islamic Finance