ijtihad parameters in fiq muamalah.pdf english version

8/9/2019 Ijtihad Parameters in Fiq Muamalah.pdf English Version

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The Rules for Ijtihadin the Jurisprudence of Transactions with a Focus on

the Maliki School of Law

Thanks to Allah, and may peace and the blessings of Allah be upon our Prophet

Muhammad s.a.w., his family and his Companions and those who follow him.

I am pleased to extend my deepest thanks and gratitude for those who organized

this intellectual discourse at the Islamic Development Bank in Jeddah and the

Islamic Research and Training Institute, for inviting me to this meeting, which is

on the rules of ijtihad in the Maliki School of Law in the jurisprudence of

transactions. May Allah make it beneficial and reward their efforts.

The importance of studying the rules of ijtihad[intellectual effort] in transactions

: The subject of ijtihad and its regulations in the jurisprudence of transactions is

critical to the present time, in light of significant developments in the financial

investment sector and in light of the challenges faced by the Islamic theory of

investment, which seeks cleaner investments, i.e. investments that comply with

the principles and spirit of theShariah

.

This requires the concerted efforts of scholars and their multiple contributions to

find legitimate alternatives, which are free from usury [riba] and the decadence of

corrupt contracts. The legitimate alternatives are not necessarily always the

easiest choice or the preferred choice or what the investors would wish for. In

fact, sometimes, it is cumbersome on the people. Indeed, if the easier choice is

in conformity with the truth [haq], then that is the right thing to do, as said by

Omar bin Abdul Aziz (may the Almighty's mercy be upon him). Otherwise, the

right rulings are the ones supported by legal evidence or proofs, rather than

driven by philosophy to facilitate.


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General rules and regulation in exercising ijtihad

: There are general rules for effective ijtihadto take place, which are not disputed

by the scholars in different sects and schools of jurisprudence.

To these scholars, the word ijtihadtechnically denotes the thorough exertion of a

jurist's mental faculty in finding a solution to a legal question, based on evidence

or proofs.

We can deduce from the above definition that the place of ijtihad is on the

speculative evidence [zaniat]. As such, there is no place for ijtihad to be

exercised on the definitive proofs [qati], like the texts [nas] of the Quran and the

Hadith [mutawatir], which is conclusive in its indication and meanings. For

example, the prohibition of usury and the legality of sales in the words of the

Almighty God, "Allah has permitted trading and prohibited interest". For rulings

like this, Muslims are not allowed to exercise ijtihadbecause the injunctions are

self-evident and crystal clear and Muslims must follow it, as it is received. This

type of rulings [ahkam] is eternal and everlasting. It will not change depending on

the passage of time or the mujtahid (the one exercising ijtihad). It is incumbent

upon the mujtahid to implement the text, as evidenced by the explicit

pronunciation, and this type of evidence is the strongest evidence.

Generally, ijtihadcan be applied in two types of evidence:

1. On the disagreed legal evidence [adila mukhtalaf fiiha], which is

presumptive or detailed evidence, either in terms of narration, or in terms

of significance, when the [al-ifez] expression is never likely to be

restrictive, or there is a probability that it could be particularized, [takhsis]

or the expression may be homonym [el-lefz el-mushtrak]. Most of the texts

indicated in Islamic law fall under the speculative evidence [zaniat], as we

have mentioned earlier, in order to stimulate the umma to strive and to

expand the scope of ijtihadand to open the doors of ijtihad to all and as


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such, the opinions of the scholars vary to a certain degree, to facilitate and

simplify for the ummaand to minimize the hardships that they face; and

2. The second avenue for the mujtahidto exercise ijtihadis when there is no

text [nas] from the Quran or Sunnah on the legal issues. So, the role of the

mujtahidhere is to exercise ijtihadeither by using analogical reasoning on

evidence or by inference from other fundamental rules, i.e. by using the

principles of usul fiqh, like the presumption of continuity [al-istishab], or

reasoning based on unrestricted interest or by using valid customs. This

kind of ijtihad is known as analogical ijtihad or creative ijtihad [al-ijtihad

bil-raayi].

Conditions of ijtihad: Between the past and the present

: The conditions mentioned by the scholars, including Imam Shafii, as well as

other jurists like El-shatubi, even though it seems very hard to achieve and to

master it. But indeed it is now thank to God Almighty is more accessible than

ever before, because of the compilation of Islamic law books or dictionaries of

the Arabic language. These books have been studied extensively, catalogued

and good complementary has been made. And then, these books have beencompiled in huge computer disks, which made the information easily accessible.

This thus minimizes the burden faced by researchers, as they can access the

required information in a short time, with less effort on their part.

And the most vital two conditions mentioned by Al-Shafii in our time today, is the

use of equity [insaaf], and to be less talkative, and that the mujtahidshould have

the faculty or talent that will qualify him to make perfect rulings by reasoning or

reflection.


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Iijtihad: Between modification and heritage limitation:

The faqihshould not limit himself to the classical books but he should know and

comprehend the contemporary issues facing the umma and he must know the

objectives and the goals of the Shariah [maqasid al-shariah], in order to find

solutions to the challenges and the needs of the times. When we say limiting

ourselves to the classical books, we mean two things:

1. We should comply with the regulations and requirements that is in the

Quran and Sunnah. Likewise, we should pay due attention to the writings

of early Muslim scholars, whose recordings have been compiled and

accepted by scholars encompassing all ages; and

2. Secondly, it means that the faqih should not ignore the contemporary

writings of Muslim jurists, which has its roots in the Quran and Sunnah.

In the case of modification in ijtihad, it means taking into account the time factor

when issuing fatwaon current affairs, because fatwasare prone to changes, as

time goes by. The position of the majority of scholars, including Malikiya, in this

regard, is that we must adhere to the principles and the provisions of Islamic law

[Shariah], which is based on clear text [nas sarih]. This does not change

according to time or place. For example, the individual obligations [al-wajibat al-

einiya], outright prohibitions, fulfillment of contracts, avoiding gharar

[uncertainties in sale contract], eating peoples wealth unjustly, the sanctity of

other human life, their blood and their honor. All these are called devotional

obligations [al-wajib el-taabudi] and its status would not change according to time

or place.

If people accepted riba, and they transact in a fraudulent way; they use bribery

and gamble, or Muslims live in a country that allows the above mentioned haram

activities and they dont observe the limits of Allah, then the rules of Allah does

not change, as it is never wrong. On the other hand, according to the majority of

scholars, ijtihad can change if its not based on clear text or with explicit


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provisions that is if the mujtahid is enriched with the heritage of jurisprudence of

the different schools of thought and he should follow their approach in extracting

the rulings and ahkams. Those who carried the banner of this understanding

includes:

1. From the Maliki School of Law - Al-Qarafi and Al-Shatube;

2. From the Shafii School of Law Ibnu Abdul Salam; and

3. From the Hanbali School of Law Ibn Taymiya and Ibn Al-Qayim.

Some of the principles of the Maliki School of Law in financial transactions

Generally, the Maliki School of Law is built upon twenty principles, as stated by

Al-qarafi and others, namely:

1. Quranic text [nas quran] like this verse, Allah has permitted trade and

forbidden usury. (al-baqarah);

2. Zahir el-quran[Apparent meaning of the text];

3. Mafhum el-mukhalafa[the divergent meaning of text];

4. Mafhum el-awla[the harmonious meaning of text]; and

5. Tanbih el-khatab[the inferred meaning of the text].

These five principles can be applied on the text from the Sunnah [Propheticwords], which consist of ten principles, as follows:

1. El-ijma- Consensus of opinion;

2. El-qiyas- Analogical deduction;

3. Amal ahl-el-medina- Consensus of the people of Medina;

4. Qowl-el-sahabi- Saying of a single companion;

5. Al-istihsan- Juristic preference;

6. Al-urf wal-adat- Valid customs or habits;

7. Al-maslaha el-mursalah- Unrestricted interest;

8. Saddu-dhrai- Blocking pretense, means;

9. Al-istishab - Presumption of continuity. For example, in a court of law, the

judge can decide not to transfer the ownership of something from its


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owner without any adverse proofs, using the presumption of continuity;

and

10.Muraatu el-khilaf - Taking into consideration the diverse opinions in

different schools of law.

The arrangement between these principles during its application is to put the

revelation first and other principles will follow when there is no substantive

evidence from the revelation.

The first principle in financial transactions is that the original status of any

financial transaction is one of permissibility

The fuqaha have unanimously agreed on this principle, Malikis and the non-

Malikis alike: that the original status of [ibadat] is impermissibility, unless

supported by legal evidence, while the original status of any transaction is

permissibility, unless there is evidence indicating to the contrary. In this regard,

we have many legal maxims concerning the issue of contracts, which includes

the original status of any contract, i.e. legally valid.

The second principle in prohibited transactionsThe prohibition of transactions in the Maliki School of Law is due to the corruption

of contracts. The corrupt contract is the one which is invalidated by legal

evidence, due to inherent corruption. Likewise, contracts can be deemed invalid

because if the goods itself is prohibited, like the meat of pig, blood, dead animal,

alcohol and so on, then the contract is not valid.

The third principle is on the prohibition of transactions and its rationale

Transactions can be deemed invalid or null and void due to five reasons:

1. Due to the inclusion of riba, like borrowing money at an interest, or

financing a project which includes the element of gharar, such as

selling something that is not in ones possession;


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2. Due to the inclusion of gharar, [uncertainty about the outcome],

gambling and imminent risk, such as contract for commercial

insurance, awards for sales or competitions for prizes, which is only

acquired through reciprocated payments. All these contracts are

deemed invalid because of the element of gharar;

3. Transactions can be deemed invalid due to unfairness in dealing with

peoples wealth, such as robbing wealth, deception, contracts involving

fraud, theft and stealing moral rights or stealing trademarks or brands;

4. Contracts can be deemed as void, due to deficiency in its pillars or the

lack of some essential conditions. Indeed, any transaction which has

not fulfilled all the basic requirements cannot be executed by Muslims;

and

5. Transactions can be deemed invalid if it violate the rights of Allah. For

instance, Allah has forbidden Muslims from engaging in any

transaction during the prayer time; so that it will not contravene the

rights of Allah (e.g. Muslims are not allowed to engage in any business

deals after the call for the Friday prayer).

Another example is the prohibition of selling or leasing a premise to a personwho in turn will use it as a night club or a church or a casino. All these

transactions are not allowed in Islam because when Allah forbids something, He

also forbids the usufruct of that item or its utility. The general principle in the

Maliki School of Thought is that the intention to deal in corrupt transactions is

haram, because it is prohibited by Allah.

The fourth principle: The determining factor in any contract depends on its

essence, not on its form

In the Maliki School of Law, it is said that contracts can take place without using

the explicit words for that particular contract, as long as people use an

expression which can serve the purpose of buying and selling. This is due to the


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legal maxim which has been agreed upon by scholars of different schools of

laws, which is:

The validity of all matters hinges on its purposes.( )

The origin of this legal maxim is the saying of the prophet s.a.w., Actions are

considered right or wrong by intentions.

The fifth principle is on the consensus of the people of Medina

The work or actions of the people of Medina is only considered valid evidence in

the Maliki School of Law when it can be traced back to the prophet s.a.w. For

example, the words of azan[call for prayer] can be traced back to the time of the

Prophet s.a.w. Likewise, we know that there is no zakahon vegetables and the

legal evidence for that is the action of the people Medina, because they were

vegetable farmers and they did not pay zakahon it.

The sixth principle is taking precautionary steps when dealing with contracts

If you follow the Maliki jurisprudence very closely, you will find the use of

precautionary measures more often, particularly when dealing with riba. For

example, one could find the use of many legal maxims in this regards, like thisone; any doubts about the similarities between two things is like being certain of

the existence of excess in one of them, which will ultimately lead to usury.

We can apply the above mentioned principle on several transactions in the

banking sector. For example, development loans given by some banks to the

beneficiary to purchase machinery and heavy equipment required for the

development of a certain project by hard currency, which the customer cannot

obtain in some countries. So, in such a case, the bank will sign a contract with

the customer, based on interest rate.

With the conclusion of this usury contract between the bank and the customer,

the latter will have the right to pay the loan with immediate cash free of interest if


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he wanted so, or sometimes, he can chooses to sign the contract with deferred

interest. Hence, this kind of usury contract between the customer and the bank

which allows the former the right to choose between prompt payment and

deferred interest will not make sense, and according to the majority of the

scholars in the Maliki School of Law, this kind of contract is null and void.

Another example on this principle is the usage of credit cards, which is issued by

banks to their customers, in which it is stipulated that if the customer pays all his

debt during a certain period, then the banks will not charge him any interest and

if he defaults the designated period, he have to pay interest. If the client signs

this contract with the determination to pay the bank on time, in order to avoid

riba, the this contract is deemed invalid due to the uncertainties surrounding it.

The seventh principle is: The expansion of the usage of blocking the meansBlocking the means is to prohibit something which is originally halal but will

ultimately lead to haram elements.The Maliki jurists expanded the use of this

principle to many transactions, to the extent that they outlawed the use tawarruq

and bay inah, in which most probably, people will tend to replace cash with

cash, which ultimately leads to usury.

According to the Maliki School of Law, bay inah is haram, because of two

things:

1. Firstly, due to the nature of 'inahitself; 'inahrefers to the sell and buy back

or because the buyer of the deferred sale takes money instead of goods.

According to the Maliki jurisprudence, this kind of transaction is deemed

as using hilahor legal trick, which will ultimately lead to unlawful elements;

and

2. Secondly, the real intention of the seller is to get money, and the

superficial sale and buy back is just the means to justify the loan.


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Eighth principal: Conflict between logical analogy and singular-chain narration

According to the scholars of the Maliki School of Law and others, Imam Malik

preferred logical analogy (qiyas) over singular-chain narration (khabar al-wahid),

in the event where there is an absolute and unsolvable conflict between logical

syllogism and singular-chain narration. While commenting on what was narrated

on the authority of Muawiyyah in Muwata of selling gold more than its weight,

where he (Muawiyyah) insisted on the permissibility of such sales, Abu al-Walid

al-Baji said, It is possible that he prefers logical analogy over singular-chain

narration, which is similar to Imam Maliks opinion.1

Though various writings that ascribed the opinion of preferring absolutely logical

analogy (qiyas) over singular-narration to Imam Malik, nonetheless, there are

those scholars who deny the idea of attributing such a notion to Imam Malik, and

insist that Imam Maliks position with regard to the relationship between logical

analogy (qiyas) and singular-narration is misunderstood and misrepresented.2

They mention a number of singular-chain narrations that was accepted by Imam

Malik, such as the Prophetic narration on washing dishes from lingers of dogs,

the narration of selling un-milked she-camel3 and the narration on the lucky-draw,

where the Prophet s.a.w. solved an issue of six slaves who were freed by theirmaster at the moment of their masters death while having no other wealth; after

the lucky-draw, the Prophet s.a.w. freed two of them (slaves) while the rest

remained as slaves.4

However, by observing a number of narrations that said Imam Malik rejected and

preferred logical analogy (qiyas) over singular-chain narrations, it is obvious that

Imam Malik did not reject the singular-chain narrations because of their conflict to

logical analogy (qiyas), but because according to him, such narrations did not

fulfill the necessary principles of Hadith authentication system, where such

1Al-Muntafa, 4/262

2SeeHashiyat al-Rahawi Ala al-Manar, p.622, and Kashf al-Asrar, 2/377.

3See Umdat al-Ahkam, Ibn Daqiq al-Id, 4/50.

4The narration of the Lucky-draw was reported by Muslim, 5/97.


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singular narrations have conflicted with certain principles, such as elevation or

easing the harm (raf al-haraj), and the practice of Medina residents (amal ahl al-

Madinah), or such narrations have superficially conflicted with other principles,

which are strong.

Among such singular-chain narrations, in which many scholars misunderstood

Imam Maliks position is the narration of Ibn Omar on khiyar al-majlis, in which

many scholars understood that Malik denied the validity of such singular-chain

narration, because such narration conflicted with logical analogy (qiyas), which is

not true. This is because Imam Maliks rejection ofsuch narration by saying that,

This narration has no authentication limits, neither valid application or usage, is

not because the narration has conflicted with logical analogy (qiyas), but because

Ibn Omars narration on khiyaar al-majlis conflicts with two other Shariah

(jurisprudential) principles:

1. First, according to the Shariah, all contracts (business or marriage) must

be free of confusion and must be stated with clarity and beyond

reasonable doubt. As such, no judgement is binding, unless it is stated

with clear words. Thus, this narration makes marriage contract binding

without clear consensus of the concerned parties. Therefore, because ofthis, Imam Malik rejected this singular-chain narration5; and

2. Second, Imam Maliks statement, There is no valid application or usage

of this narration indicates contrary to khiyar al-majlis option of the

meeting, in which the singular-chain narration contained, where this

particular singular-chain narration did not only conflict with logical analogy

(qiyas), but it also conflicts with the popular practices of the medinites

(people of Madinah) and the Shariah (jurisprudential)principles of gharar

(risk handling).6

5See al-Mawaqif, 3/13

6See al-Muntaqa, 1/55, and Umdat al-Ahkam, 4/13.


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Therefore, the right understanding of the Maliki Schools view on the relationship

between singular-chain narration and logical analogy (qiyas) is not a preference

of logical analogy (qiyas) over singular-chain narration, neither to prefer logical

analogy (qiyas) over singular-chain narration. Rather is to preponderate either

singular-chain narration or logical analogy (qiyas), based on external and

supporting evidences from the other Shariah (jurisprudential) principles. This is

due to the fact that Shariah principles are applied collectively.

However, in the situation where there is conflict among them, the weigh and

balancing process (tarjih) is the way forward, and the determining factor is the

strength (quwah) and the clarity (wudhuh) of the evidence, not the source

(masdar) of the evidence. The fact that the Maliki School prefer singular-chain

narration over logical analogy (qiyas) if there is a conflict between the two and no

other evidence supports logical analogy (qiyas) over singular-chain narration, is

proven by the Maliki Schools acceptance ofdiyat al-marah (compensation of the

murdered women) to be half of mans compensation.

Imam Malik narrated7 from Said b. Musayyib that a murdered womens

compensation is up to a third of a man, and if she is mature, then thecompensation goes up to half of a mans compensation. About the narration of

Nisai from Amar b. Shuab who said that: the Prophet s.a.w, Compensation of

murdered women is similar to that of man.8 The Malikis did not decide about the

murdered womens compensation based on logical analogy (qiyas), which drives

that the significance of the tragedy requires significant compensation not the

otherwise, similar to the compensation of other damages. However, the reason

why Maliki School rejected this analogy and preferred the singular-chain

narration over this analogy is because this particular singular-chain narration was

7See al-Faqih and al-Muafaqih, p136, and al-Muntaqa, 7/78

8Sunan al-Nisai, 8/39


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supported by the popular practices of the Madina society. Therefore, it becomes

stronger than the said analogy.9

Another evidence of Maliki Schools preference of singular-chain narrations over

analogy (qiyas) is their position about the Prophetic narration which permits bay

al-ariyah (the sell of premature fruits), where the seller gives a nakhala (dates

tree) etc. to the purchaser then dismays to reclaim it from purchaser, it is

permitted to buy it. Though it is unacceptable through logical syllogism, because

it is a sale of food before receiving it as well as the exact amount of identical

items exchange is unknown which could endanger riba. However, Imam Malik

accepted the singular-chain narration of baya al-ariyah, which was reported on

the authority of Zayd bin Thabit, and rejected the qiyas which indicated

otherwise, with the mind that baya al-ariyahis a type of charity and donation and

not overruled by ignorance, and baya al-ariyah in this matter is based on

goodwill.10

Ninth principal: Practicing custom

According to the Maliki School of Law, customary practice (urf) specifies the

generic and limits the common terms of the Shariah. Al-Qarafi stated that, The

general statement of scholars are specified and limited by customs.11 In

principle, contractual terms, as well as faith, should be understood based on the

peoples custom, if the concerned people have a custom, for the Quran states:

Hold to (or accept) forgiveness; command what is right; But turn away from the

ignorant..12 Hence, the right customs are accepted, unless it violates the

contract.

According to the Maliki School of Law, ignorance in business contracts is

elevated (or made known) by custom. Thus, the deferred sale to future occasions

9See al-Muntaqa, 7/78, and Commentary notes of Abd al-Baqi al-Zarqani on al-Muwata, 5/142.

10See al-Muntaqa, 7/225

11Sharh, Tanqih al-Fusul, p.194

12Al-Araf, verse 199.


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are accepted, and deferment of business contracts among business communities

to exchange goods are accepted, if the custom allows so, because by custom,

people will know the time and duration of the deferred contracts.

Through peoples routine practices of business exchanging and compensation in

renting and selling, the issue of ignorance (jahalah) of hidden details of contracts

is elevated (rufia), even if it was not described before the practised custom

replaces the descriptive details of the contract. Thus, any disagreement among

the contractual parties on the details of the contracts will be referred to the

custom that is practised in that particular region. For instance, if someone rents

out a horse or donkey and so on to another person, and the two contractual

parties agree on the rental to be the daily forage of the horse from renting parts

garden, such contracts are accepted, though the details of how much the horse

will eat from the garden is not specified by the two parties.13

As stated in al-mudawanah, If someone leases a horse or donkey, etc. to

another person, and the two contractual parties agree on the rental to be the

daily forage of the horse or the camel, then according to Malik, such a contract is

permitted.

14

Similarly, it is permitted to sellhalf of ones animal to someone,

withthe condition that the buyer should feed it for a year, as compensation for the

second half. According to Ibn Rushd, this type of business is permitted because

the seller sold half of the animal on a specific amount, which is the forage which

would be specified by the custom.15 Ibn Rushd adds that, Imam Malik permitted

this type of contract because forage amount, which the rented animal can

consume is known through the daily life practices of the people (custom), and

when Yahya was asked, Why did Malik permitted such a business contract?,

Yahya responded, Because the amount of forage eaten by the rented animal

from renting partys garden is known by custom.16 For this reason, the Maliki

13Al-Taj wa al-Iklil, 5/436, al-Karshi 7/34.

14Al-Mudawanah, 4/470

15Al-Bayan wa al-Tahsil, 7/272

16Al-Bayan wa al-Tahsil, 7/312


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School do not consider the forage of the rented animal up to a year as a hidden

compensation, though animals are different in daily consumption and forage.

A good example of this in our time is buffets at hotels, which require a fixed price

for all customers, even though each persons appetite is different. Thus, based

on logical analogy (qiyas), buying a ticket from the counter of hotel to eat from its

buffet restaurant of different foods is not unknown compensation; rather, it is

known through customary practices. Nevertheless, one thing must be clear about

the buffets that are the type of foods served in the buffet restaurants must be

known. But if by custom the types of foods served is known, then that could be

the alternative way of description, which can remove the jahalah from the

contract. However, if there is no accepted custom among the client, then the

owner of the restaurants must display the list of food available in the restaurant

before selling the tickets to the customers.

The tenth principal of risk according to the Maliki School of Law

Qarafi classified unknown and riskcontracts into three categories:

1. Contracts that contains huge risk, which is based on risk and adventure.

These types of contracts are prevented and outlawed consensually(ijmaan), because it leads to exploitation and injustice, such as the sale of

the unborn baby of pregnant animals, and the deferment of sale to an

unspecified time and place;

2. Contracts which contain minimal and negligible risk, which is according to

Dasuqi, the manageable risk that people take it lightly. Such contracts with

this type of risk is permissible, such as selling fruits without knowing its

internal parts, or paying fixed fees to use the public toilets, while people

are different in terms of their water consumption, etc.,17 or leasing a house

on a monthly basis with slightly different prices; and

17See al-Sharh al-Kabiir maa Hashiyat al-Dasuqi, 3/60, al-Majmua Sharh al-Muhazab 9/311, and Sharh

al-Kharshi Ala Kalil, 5/75.


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3. Medium risk - Scholars have different opinions on the measurement of this

type of risk, and whether this type of risk would be treated as a prohibited

risk or an allowed risk. Some scholars prohibited contracts with medium

risks because of its impact of contract, while others allowed business

contracts with manageable medium risk, and according to al-Qarafi, that is

why scholars have various opinions about contracts with risk and

concealed elements.18

There is another type of risk that cannot be classified as a minimal or negligible

risk, which is still permissible. This is because, first, this type of risk is

unavoidable (adam al-ihtiraz minhu), and second, it is unintended in the contract,

such as to buy a pregnant animal without being aware of the number of babies of

the pregnancy, or to buy un-milked female cattle,19 or to employ someone on the

basis of daily meals, or to pay fixed fees for public toilets, etc.

Eleventh principal of conditions according to the Maliki School of Law

The types of conditions (shurut) associated with the contract; the scholars of the

Maliki School of Law are flexible to permit prior conditions of the contract;

however, they are strict about the conditions contained in the contract, as follows:1. Conditions upon which the contract is nullified, as far as the conditioner is

sticking to it. Nonetheless, if the conditioner discards such conditions, then

the contract become legitimate. This type of condition prevents the right

beneficiary person to use and benefit from items sold to him or her, such

as to sell a commodity to someone with condition that the buyer should

not sell it, or should use it, or the buyer should not donate it or give freely

to someone, or the buyer should sell back the commodity only to the

seller, or the buyer should buy the commodity together with something

else which the buyer does not want to buy. These types of conditions are

illegitimate, because it contains the element of prevention that prevents

18Al-Furuq, 3/266

19Al-Majmu Sharh al-Muhazab, 9/311.


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the buyer to utilize the commodity which violates the basic objectives of

business contracts. According to some narrations, Abdullahi Ibn Masud

(r.a.a) bought a female servant, then the seller informed Abdullahi b.

Masud (r.a.a) that if he (Ibn Masud) want to sell her, he should sell her

back to the seller with the same price, however, Omar b. Khatab (r.a.a)

said: do not buy with such preconditions,20 and this indicates that such

preconditions nullifies business contracts;

2. Conditions (shurut) upon which business contracts are nullified in any

way, regardless of whether or not the seller or the buyer produces such

conditions. These conditions are those which violate the legitimacy of the

business contract, such as business activities with riba (interest), risk

elements, such as concealment of the price or the commodity, or preserve

the choice by either party to nullify the contract at any time, without a

specific duration, etc. The narration of the asifclearly shows the invalidity

of this type of contracts with this condition,21 where in asif narration the

Prophet s.a.w. nullified the contract between the pastoralist (arabi) and

his contractor based on the Islamic Shariah. Among this type of nullified

business contracts is the sale where the buyer demands additional money

from the seller (other than the agreed price), in case the price of thecommodity goes down in the future. Ibn Rushd and others clearly stated

that such preconditions nullify the business contract.22 Any business

contract which is based on such conditions is null and illegitimate. The

word nullification here means that the buyer keeps his or her money, while

the seller keeps his or her commodity, as if no contract was concluded.

However, in the case where the commodity of such business contracts

have been utilized, the buyer must pay back the same price of the

commodity at the day of the contract to the seller.23;

20Al-Sunan al-Kubra, 5/336, See al-Bayan wa al-Tahsil 6/264, and Tahrir al-Kalam fi Masil al-Iltizam,

p.35821

Reported by al-Bukhari, 6/25222

Al-Bayan wa al-Tahsil, 8/44 & 15/339/ and Tahrir al-Kalam, p.25123

Al-Bayan wa al-Tahsil, 15/339


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3. Conditions (shurut) through which the business is legitimate, but the

condition itself, not the contract, is null. These types of conditions are

those conditions which interfere and affect the rights of either contractual

parties, but neither prevents the beneficiary rights of either party, nor does

it affects the price.24 Among the example of this is if the seller sells a

commodity to someone and tells him or her to give the money at a specific

time, the business contract is null. In this situation, the contract is valid but

the condition (shart) is null,25 and the payment would be due on the time

agreed upon between them,26based on the narration of Aishah (r.a.a) on

the occasion of the freedom of Barirah,27 where the Prophet s.a.w

validated the contract and nullified the condition shart,saying that: Why

some people among you state conditions (of their own) which is not based

on the Quran and the Sunnah, any condition (whatsoever might be)

outside of the Quran and Sunnah is invalid and null28; and

4. Conditions (shurut) which are beneficial for either contractual party without

undermining the validity of the contract. These kinds of conditions are

permitted and it should be fulfilled, as far as it does not contain any risk

(gharar) and does not affect price or the commodity, such as to use the

sold items (such as car or house) up to certain specified time beforedelivering it to the buyer. Another type of the permissible conditions are

the conditions which the contract contains, such as to require money or

payment on the spot, or to require the postponement of the delivery at a

specific time and place, or to buy furniture and other house equipments,

24Certain detailed examples of this story see: al-Sharh al-Kabir, 3/175

25That is the opinion of Malik based on theMudawanah, however, Malik holds two other opinions, first is

that both the contract and the condition are valid as Zarqani states, where the seller says I sell to you this

with the condition that you should pay the money first. Second opinion of Malik is that the business is null.SeeHashiyah al-Dasuqi, 3/175,Mawahib al-Jalil, 4/416, and Sharh al-Zarqani Ala al-Khalil 5/526

Details: it is permissible according to Shafii, Hanbali and Hanafi school of thought, to keep the

commodity until receiving the complete money or the price agreed upon between the two parts, because

this condition does not nullify the contract. And according to mainstream of the jurists except the Hanafi

School, it is permissible to postpone to handover the sold item for certain specified period, and the

narration of Jabir indicates. See Kashaf al-Qinaa, 3/191, Sharh al-Mahali Ala al-Minhaj, 2/180,Badaial-Sanai 5/171, and Sharh al-Zarqani Ala Khalil, 5/527

Al-Bukhari with Fath al-Bari, 6/25528

Ibid, 6/255


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with the condition that the seller should install them or deliver them to the

buyers house.

The permissibility of such conditions is based on the narration of Jabir (r.a.a) who

sold a camel to the Prophet s.a.w. while they were on travel to Madinah. The

Prophet s.a.w. asked Jabir to sell his camel to him (the Prophet s.a.w.) and Jabir

agreed, with the condition that Jabir will use the sold camel until he completes his

journey to Madinah. Then, while accepting that condition, the Prophet s.a.w. pays

to him the price of the camel. Upon arrival to Madinah, Jabir brought the sold

camel to the Prophet s.a.w.29

In this detailed account of the Maliki School of Law about the associated

conditions to the business and its classifications are based on broad conception,

which employs the narrations (ahadith) on the conditions (shurut) in a way that

these narrations do not contradict. Ibn Rushd stated in the introductions that:30It

was narrated that Abdul Warith b. Saiid said, I come to Makkah and met Aba

Hanifah, Abi Layla and Ibn Shubrumah (r.a.a), then asked Aba Hanifah, What is

your opinion about someone who sold (baa, or business contract) something

and make conditions (shurut), then Aba Hanifah replied, Both the contract (aqd)

and the condition (shart) are null. Then, I come to Abi Layla and asked him the

same question and he replied: The contract is valid but the condition is invalid,

then I come to Abi Shubrumah and asked him the same question, and replied:

Both the contract and the condition are valid. Then, said Abdul Warith, after

hearing the response of these three scholars, I said, Subhana Allah, i.e., glory to

Allah, how come three of Iraqi scholars are giving me three different answers

about one issue? Then, Abdul Warith said, I went back to Aba Hanifah and told

him the answers of other two scholars on the subject, then Aba Hanifah replied,

I am not certain about their answers but my understanding is based on the

Prophetic narration which was reported by Amar b. Shuayb from his grandfather

29Reported by Muslim, 3/65

302/68, andHashiyat al-Dasuqi, 3/65


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through his father that the Prophet (s.a.w) prohibited, sell and condition.31

Then, I come back to Abi Layla and told him the answers of other two scholars

on the subject, and he replied: I am not certain about their answers but my

understanding is based on the Prophetic narration which was reported by Aishah

(r.a.a)who said: the Prophet (s.a.w) asked to buy Barirah (r.a.a) and free her

even if her master make preconditions, this is because the loyalty of freed slave

(wala) belong to the person who frees the salve, therefore said Abi Layla the

contract (aqd) is legitimate and condition (shart) invalid. Then, Abdul Warith

said: I come back to Abi Shubrumah and told him the answers of other two

scholars on the subject, and he replied: I am not certain about their answers but

my understanding is based on the Prophetic narration which was reported by

Jabir (r.a.a) who have had business contract with Prophet s.a.w. but with

condition, where both the contract and the condition were valid.

Twelfth principal: To considerably accommodate (muraat) the differences

Though muraat literally denotes consideration, reflection and observance of the

difference, it is employed to indicate the scholars or mujtahidis position, who

takes into consideration of evidences of other opinions and thoughts, which are

opposite to his own opinion. Or it is about the mujtahids position, based on the

available evidence about a certain issue and event, but takes into consideration

of evidences of opposite opinion, because of its strength.32 The consideration of

opposite evidence is based on the Prophetic narration, The illegitimate baby is

for the bed (belongs to the family), while the fair punishment of the bastard (zani)

is stone.33The Prophets decision to associate the child to the bed is based on

the Islamic Shariahs view that in the case where a married woman engages in

adultery with another man other than her husband, the illegitimate child of such

engagement should be associated to the owner of the bed (husband), not to the

31Said in Nayl al-Awtar, 5/202, this narration was reported by Ibn Hazm in the Mahali, and Khitabi in the

Malim, and Tabari, in the al-Awsat, and al-Hakim fi Ulum al-Hadith, but Imam Nawawi and al-Fawaris

categorized this narration as a strange. The literal narration of imam Termizi ( hadith no 3504) and Abi

Daudis (hadith no: 1234) report was is somewhat different from he above mentioned statement.32

Al-Bahjah fi Sharh al-Tuhfah, 1/10, and Sharh Hudud Ibn Arfah 1/260.33

For further details of this narration and what happen between Saad bin Abi Waqas and Abdullah b.

Zamah on the illegitimate child of Zamahs female servant, see Al-Bukhari, hadith no: 1912


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bastard (zani), based on the believe that opposite evidences must be taken into

consideration.

However, a number of scholars rejected the issue of considering the opposite

evidences and insisted that the scholar should follow the evidence, regardless of

whether other evidences indicate the opposite or otherwise.34 Among the good

examples of considering the opposite evidence is the confirmation of inheritance

and ancestry for the unprotected marriage (nikah al-shighar), which is invalid

according to Maliki School of Thought, to consider the position of Hanafi School

who validates it.35

Similarly, goes to the Jewelers owned through invalid business contract, then lost

through consumption or transferred to another ownership, the transaction will go

through, because of the difficulty which arises from any attempt to retrieve it back

more than the original prohibition.36

Written by: Al-Sadiq b. Abdul Rahman al-Gharyani(21 Shaban/ 1429 H, 23/ 08/

2008)

34See al-Bahjah fi Sharh al-Tuhfah, 1/10, Sharh Hudud Ibn Arafah, 1/263, and al-Isaf Bi al-Talab, p.91.

35See al-Bahjah fi Sharh al-Tuhfah, 1/10.

36See al-Bahjah fi Sharh al-Tuhfah, 1/10, and al-Muwafaqat Li al-Shatibi, 4/204

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