======================================================================================================

Commercial Law of Islam

Part 7/7

Shuf’ah : Right of Pre-EmptionGhasab : Unlawful SeizureItlàf: DamagesWakàlat: AgencyWaqf: Charitable TrustsAl Qismatu wal Muhàyàt: Division of Property and Benefits

======================================================================================================

Translated from "Islamî Fiqh" by Maulànà Mujîbullàh Nadwî

by Abd ur Rahmàn O'Beirne

======================================================================================================

correction progress – complete

hyperlinks – not yet

numbers in brackets in text e.g. ( 607) refer to page numbers of original Urdû text

FIRST PUBLISHED 1998/1419 AH Publication No A92

© 1998 (outside Republic of South Africa only)Abd ur Rahmàn O'Beirne

ByMADRASAH ARABIA ISLAMIAP.O. BOX 9786AZAADVILLE1750SOUTH AFRICA

TEL: {011} 413 2786FAX: {011} 413 2638

1

Part FiveCONTENTS

CHAPTER 22 SHUF’AH or RIGHT OF PREEMPTION 3

The Meaning and Definition of Shuf’ah 3Some Technical Terms 3The Grounds for Shuf’ah 4Order of Priority 4Conditions for the Validity of Shuf’ah and SomeImportant Masà’il 4In This Muslim and Non-Muslim Are Equal 6

CHAPTER 23 GHASAB or UNLAWFUL SEIZURE 6

Some Technical Terms 8The Definition of Ghasab 8Orders Concerning Ghasab 8

CHAPTER 24 ITLÀF or DAMAGES 10

Direct Damage 10It Is Not Lawful to Cause Damage in Retaliation for Damage 12The Person Who Does the Damage Is Liable, Not the One Who Gives the Order 12Becoming a Cause of Damage 13Compensation for Damage by Animals. 13Vehicles 14

CHAPTER 25 WAKÀLAT: AGENCY or POWER OF ATTORNEY 15

The Need for Wakàlat 15The Meaning of Wakàlat 15The Definition and Status of Wakàlat 16There Are Two Forms of Wakàlat 17A Messenger Is Not a Wakîl 18The Elements and Conditions of Wakàlat 18Non-Muslim Wakîl 21Termination of Wakàlat 22

CHAPTER 26 WAQF or CHARITABLE TRUSTS AND INSTITUTES 23

The Definition of Waqf 25Orders on Waqf 26Important Masà’il 26

CHAPTER 27 AL QISMATU WA'L MUHÀYÀT orDIVISION OF PROPERTY AND BENEFIT 28

Definition of Qismat and Muqàsamah 29The Right of Division 29Types of Division 29Simple Division 29Division by Groups 30Divisions of Land and Buildings 30Muhàyàt 31Definition of Muhàyàt 31No Options in Items of the Same Kind 32

GLOSSARY OF TERMS – See separate file

2

CHAPTER 22

SHUF’AHor

RIGHT OF PRE-EMPTION

If a person is selling some immovable property, such as a plot of land or a house, then it may happen that this property belongs to several persons jointly, or that several persons benefit from it. Or it may happen that some other people are living next door, and that the seller has had good relations with them, and they have been in the habit of treating each other with consideration and care for each other's loss or benefit and ease or difficulty, and some complete stranger is buying the property. So, it might be that his relationship with the other people is not good, or that he is not an honourable person, or that he is not considerate to his neighbours. So, then there will be trouble for both parties and disorder will be created in the society.

In view of this consideration, the Sharî’ah has given permission for Shuf’ah - that is to say, however much the seller is selling at, the Shafî’ can claim the right to purchase it at that same price.

It is evident from a number of Hadîth that in the matter of shared property the Nabî sallallàhu alaihi wa sallam gave the right of Shuf’ah. It comes in one Hadîth:

"He gave the right of Shuf’ah in every jointly owned indivisible property, be it a building or a plot of land, and said that it was not permissible for one partner to sell his share until he obtained permission from the others. So, if they want, they can leave him to sell it. And if he sells it without their permission, then they still have a first right to purchase it" (Muslim, Mishkàt and Al Muntaqà v.4 p 416).

(626)THE MEANING AND DEFINITION OF SHUF’AH

The literal meaning of Shuf’ah is joining together, and in Sharî’ah it means keeping the property that someone has separated (by buying it) joined together (by pre-emption of the sale). So, the right of a person to pre-empt the sale of a part of a property in which he has a share is called Shuf’ah.

In Ma'jam Lughat ul Fuqahàa this definition is given:

SHUF’AH: The right of a shareholder or a neighbour to take possession forcibly of a sold property (i.e. land or building) from the buyer at the price on which the agreement of sale was concluded.

This practice existed during the time of Jàhîliyah. With some modifications. Huzùr sallallàhu alaihi wa sallam allowed it to remain.

SOME TECHNICAL TERMS

1) Shafî’: The person who exercises the right of Shuf’ah (i.e. pre-emptor)

3

2) Mashfù’: The property over which the right is exercised (pre-empted)

3) Mashfù’' bihi: The part of the land or building belonging to the pre-emptor whichgives him as its owner the right of pre-emption.

4) Jàr Mulàhiq: A neighbour whose building is fully joined to the property

THE GROUNDS FOR SHUF’AH There are three factors that give a person the right of Shuf’ah. The first is that the person be a shareholder in the property. The second is that he shares in its benefit. For example, they both share the same access road, or they both water their fields from the same well or canal, or they both share the same yard. The third is that his property is adjoining the property being sold. The right of a neighbour is the opinion of Imàm Abù Hanîfah rahmatullàhi alaihi. The other three Imàms do not regard a neighbour as having a right of Shuf’ah.

ORDER OF PRIORITY (627)

1. The first right belongs to the shareholders in the property; if they do not take up the option then those who share in the benefit; and if they do not take it up then the neighbours. And a neighbour who shares in the benefit will have priority over one who does not.

2. If in a double-storey building the ground floor belongs to one person and the upper floor belongs to another, then each is Jàr Mulàhiq to the other.

3. If two houses share a common wall, then they both are regarded as sharing a common property. That is to say, each will have first right of Shuf’ah over the other. But if one neighbour has fixed his rafters or joists on to his neighbour’s wall, or is resting his slab on it, and the neighbour has not objected, this does not make them shareholders. They will only be regarded as neighbours.

4. If several persons have a right of Shuf’ah, but their shares in the property are not equal, even so they will all have an equal right of Shuf’ah. For example, there are three share-holders in a property. One has a half share, one has a third, and one has a sixth. So, if the person with the half share sells his share, then both of the other two shareholders will have an equal right of Shuf’ah. And if they take up the right. then they will both pay an equal amount and have equal shares in that part. The difference in their shareholdings will not affect the matter.

(628)CONDITIONS FOR THE VALIDITY OF SHUF’AH AND SOME IMPORTANT MASÀ’IL

1. As soon as someone hears that one partner or neighbour has sold his property or has given it to someone, he must immediately announce his

4

intention of making Shuf’ah, or he should act in some way that will make his objection to the sale or his intention of Shuf’ah evident. If he at this time does not say anything, and does not indicate his intention of Shuf’ah, then his right of Shuf’ah will not remain, provided that he knew the identity of the buyer. and that the transaction had been finalised. Mere hearsay will not render his right invalid. (Sharah ul Majallah p 577 from Qàdhî Khàn)

2. There is no Shuf’ah on the mere intention of the seller to sell. The property must actually be sold or given to someone for the right of Shuf’ah to come into effect.

3. The Shafî’ has no right of Shuf’ah in a sale that is

transacted with his agreement. For example, if he has recommended the sale (to that buyer) or when he heard of the sale he said "good," then his right of Shuf’ah expires.

4. If a Shafî’ says to a buyer that if you give me so much money, I will then abandon my right of Shuf’ah, then by his saying this, his right of Shuf’ah immediately expires, and whatever money he may have taken from either the seller or the buyer is rishwat (bribery) and is Haràm.

(629)5. If the seller says that he has sold his property for

say, 10,000 rupees, and the Shafî’ does not take up his right because the amount is too much for him to pay, and then later he finds out that the seller had

informed him wrongly and had sold it at a lower price, then he again has a right of Shuf’ah.

6. If the buyer has made some improvement in the property - for example, he has repaired a house, or built a building on a plot, or has planted trees - then the Shafî’ must either pay the price of the property and the improvements, or abandon his right.

7. If Shuf’ah is exercised on the sale of a plot, it must be on the whole plot. Shuf’ah on half or quarter of it is not lawful.

8. If the house that the Shafî’ has pre-empted falls down, or the trees of an orchard die, he will still have to pay the full price, provided that the damage was not done deliberately by the buyer.

9. If a Shafî’ has stated his intention of Shuf’ah, but before making a binding decision he dies, then his right expires. Now his heirs do not have the right of Shuf’ah.

10. If he has announced his intention of Shuf’ah, but has not yet put forward his claim, this delay does not affect his right. He can exercise his right in two ways.

a) He can put his claim before an Islamic court.

5

b) With the agreement of the buyer he can pay him the price that he paid and take possession

(630)If the Shafî’ is staying somewhere far away, and cannot exercise his right at the time of sale then, when he is informed of the sale, he can come himself or appoint someone as his agent, or send a letter to exercise his right of Shuf’ah.

IN THIS MUSLIM AND NON MUSLIM ARE EQUAL

In the same way that a Muslim can exercise his right of Shuf’ah over another Muslim, in an Islamic state a non-Muslim neighbour will have the same right to pre-empt a property from a Muslim. The writer of Hidàyah explains this on rational grounds that since the purpose of this law is to avoid harm and in this Muslim, non-Muslim, just, and unjust are all equal, so also in this right they are also equal. (630)

CHAPTER 23

G H A S A Bor

UNLAWFUL SEIZURE

(630)To take any person's property by force, wrongfully, without his permission or against his will and pleasure, is a very great sin and is very strongly condemned in Qur’àn and Hadîth. Even for a father to take or use his son's possessions, or a son his father's, or a husband his wife's possessions, or a wife her husband's, without permission is not permitted. If anyone takes or uses someone's property without permission then he is called a ghàsib. He can be punished in this world, and punishment will also be waiting for him in the next. Ghasab is an extremely serious kind of dhulm. It comes in the Holy Qur’àn:

"Those who consume the property of orphans wrongfully and without need are filling their stomachs with fire"

The meaning of filling their stomachs with fire is that they are making their place in Jahannam. In this àyat the word dhulm has been used. Dhulm means every kind of oppression, unfair coercion, and wrongful demand.

(631)The meaning of this àyat is that for someone to spend the wealth of an orphan who has not yet acquired

6

understanding and discrimination in a way that he would not like his own wealth to be spent, or to pay himself an amount for looking after it that he himself would not pay someone else, is dhulm. This dhulm is also Ghasab in the sense that he is wrongfully consuming the wealth of a weak person, and without his permission, because if the child was grown, up he would not give permission for his money to be used in this way. From the àyat of the Holy Qur’àn

"And coming behind them was a king who was taking every ship by force"

And from the relevant Hadîth the Fuqahàa have derived the masà'il of Ghasab. There are countless statements of the Nabî sallallàhu alaihi wa sallam that Ghasab is a most evil form of dhulm, with the most extreme emphasis he has warned.

"Beware. Do not oppress. No man's wealth is Halàl without his willing agreement"

And he has also said that it is not right to take any person’s property without his permission, either seriously or jokingly.

"None of you should ever take anything belonging to his brother whether seriously or in play"

and he has also said:"You should not even pick up someone's knife without his permission.”

and he has said:

“No-one has a right, that if he finds someone's animal, to milk it without his permission." He has explained this by giving an example. He asked: "Would you like it, if there is some food or drink in your store, that it get broken and the food be spilled on the ground. So, just as you do not like your food to go to waste, so also the milk in the udder of an animal is a store of food belonging to the animal's owner. It is not right to empty it out without permission from its owner.

(632)Concerning land Huzùr sallallàhu alaihi wa sallam has said:

"If anyone wrongfully seizes a single span of land, then on the Day of Judgement, seven times that amount of land will be put as a collar around his neck"

and he has said:"If someone cultivates land that is not his property, then legally he has no right to any of its produce. However, he will be given his wages for his work"

In one Hadîth it comes that on the day of Qiyàmat, a usurper will be told to give back the thing he usurped to its owner. So, he will not be able to bring it there. Then, in exchange for that thing, a part of the reward for whatever good he has done will be given to the injured party. And if he has no reward due or remaining to him, then some of the injured party's sins will be transferred to his account. and he will have to take the punishment for them. So, he will be repaid for his oppression in this manner, and the people he wronged will be compensated in this manner.

7

But this compensation they will get on condition that they themselves did not retaliate against oppression with oppression, against excess with excess, or against wrong with wrong. If they do this, their compensation will go, and they may themselves end up carrying some of the other party's punishment.

This is punishment in the next life. Now we come to the laws concerning the position of a ghàsib in this world.

SOME TECHNICAL TERMS

Ghàsib: Usurper, someone who unlawfully seizes someone’s property.

Maghsùb: The property that has been usurpedMaghsùb minhu:The person from whom it has been

usurped

THE DEFINITION OF GHASAB (633)

The literal meaning of Ghasab is to take someone's property by force. i.e. to rob, extort, usurp, seize illegally, etc. The definition in law of Ghasab is:

"To take some legitimate property without the permission of the owner, openly and by force, out of the possession of the person from whom it is taken, into the possession of the ghàsib"

If someone takes some person's property secretly, this is called Sarqah (theft) not Ghasab.

ORDERS CONCERNING GHASAB 1. As has been said, to take any person's property

without his permission is a serious sin. But a distinction must be made. One thing is to do this deliberately. The other is doing so by mistake. If someone does this deliberately, then he is both a sinner, and is obliged to return the property seized, or else pay compensation for it. And if one person took another's property mistakenly, thinking it to be his own, then he is not a sinner, but he will have to return the property or pay compensation. It is not a sin on him because Allàh Almighty forgives oversights and mistakes.

2. If the property seized is still with the ghàsib, then the actual thing taken will be taken back from him. But if he has spent, sold, lost, or otherwise disposed of it, and it is something which is difficult to find in the market, or cannot be found at all, then the ghàsib will have to pay its price at the time it was seized by him.

3. If the ghàsib returns the price of the property, but the person from whom it was seized refuses to accept it, then the government will compel him to accept it.

(634)4. If there is some defect in, or damage has been done

to the property, then there are two possibilities. If the damage is slight, then the same article will be returned plus compensation to the value of the damage. But if the damage is serious, then the

8

owner has the right to either accept it back together with compensation to the value of the damage, or to take the full price of the article.

5. If the ghàsib has created so much of a change in the article that it will no longer be called by the same name then he will have to give its full price. For example, if someone seized a goat and slaughtered it, or seized some grain and ground it into flour, then these things become the property of the ghàsib and the original article is in effect lost. So, he will have to pay their price, and until he has paid for them, he does not have the right to make use of them.

And if someone seized some cloth, and then dyed it, then the owner has the option of either taking the dyed cloth or the price of the original cloth. If he takes the dyed cloth he will have to pay for the dying. If someone has used unlawfully seized money for business, then whatever profit he made on it he must give as Sadaqah, and the original money he must give back to the owner.

It is not lawful for him to take the profit. If he does so he is committing a double sin. Firstly of taking the money unlawfully, and secondly consuming the profit on Haràm money.

Similarly, if someone seized some gold or silver and had it made into jewellery, then in the opinion of Imàm Abù Hanîfah rahimahullàh that same gold or silver should be given back to the owner. But the

Sàhibain rahimahumallàh say that he will be given the value of the gold or silver.

(635)6. Whatever increase comes of its own accord onto

the usurped article belongs to the original owner from whom it was taken. For example, the offspring of an animal, or the fruit in an orchard. If the ghàsib sells them or loses them, he will have to pay compensation.

7. If the ghàsib has himself created some increase in the usurped property - for example if he has built a house or planted an orchard on usurped land - then the ghàsib will be ordered to demolish his building and to cut down his orchard. But if demolishing his building or cutting down the trees is going to cause harm to the land, then the owner of the land will pay their price and take them. So, thus both morally and legally no injustice is to be done in retaliation for his injustice. It comes in Hadîth:

"If someone plants a crop in some person's land without his permission then the cultivator will get nothing of the crop. It will all belong to the owner of the land"

Apart from a few secondary points all the Imàms are agreed about the Masà’il of Ghasab.

9

CHAPTER 24

ITLÀFor

DAMAGES

Just as it is a serious sin to take some person's property without permission, so also to damage someone's property, or to knowingly become a cause of such damage, is also a very serious sin. Once Hazrat Â’ishah radhiyallàhu anhà broke a plate belonging to Hazrat Safîyah radhiyallàhu anhà, so Huzùr sallallàhu alaihi wa sallam ordered that she should pay for it. If some person intentionally, or without intent, breaks someone’s property, then he has to pay compensation, and if he has done so intentionally then as well as having to pay compensation, he has also committed a sin. And if it was without intent, then he has not committed a sin, but he still has to pay compensation. One kind of Itlàf is bodily harm - that is to say, killing or damage to some limb or part of the body. But this matter can only be dealt with by an Islamic government, and is dealt with under the headings of Hudùd and Ta’zîr. (These chapters are in Islami Fiqh vol 3, which I have not translated.) Here only damage to property is dealt with.

Damage or loss to property can be caused either directly or indirectly. For example, if someone smashes something against the ground and it breaks, this is direct damage. And if he puts a glass in a place from where it

can easily fall, or gives in into the hand of a small child and it gets broken, then constitutes indirect damage, or becoming a cause of damage. In both cases he will have to give compensation. The difference between the first and the second is that in the second case, if any other person is involved in the damage, it is he, and not the first person, who will be held liable. For example, if someone digs a well on a roadway, and then someone falls into it by himself, then the person who dug the well will be held liable for damages. But if some other person pushes a man or animal into the well, then the person who dug it will not be held responsible.

DIRECT DAMAGE

If direct damage is done, either intentionally or unintentionally, then compensation has to be given. For example:

1. If someone borrows some article, or takes it on hire, or is keeping it as an Amànat, and then intentionally breaks it, or uses it improperly, or does not take proper care of it, he will have to give compensation for it. For example, if someone borrows a bicycle and rides it on a bad road, or rides fast in heavy traffic, and some part gets damaged, or he crashes it, then he will have to give compensation. Or if someone borrows a book, and leaves in a place where rats start to eat it, or his child tears it, then he will have to give compensation in proportion to the damage. If it has become completely useless, he will have to pay the full price.

10

2. If someone slips and falls while he is holding someone's property in his hand, and it gets broken, or he falls onto someone's property and it gets broken, then in both cases he has to give compensation.

(This might seem strange. But the point here is not allocation of blame or punishment. Something has been broken and a loss has been sustained. Now the question is who should bear the loss? If the owner is made to bear the loss he will resent it as he will say that it was certainly not his fault, whereas there might have been carelessness on the part of the person who broke it. So, it is fairer to generally put the burden of the loss onto the person who inadvertently caused it rather than the owner. It will also make people more careful about how they behave around other people's property. )

3. If someone mistakes some article belonging to someone else for his own article, and breaks it, or loses it, or spends or sells it, then he will have to give compensation. He has not committed any sin, but this is a matter of the right of an individual and, in this, knowledge and intention is not taken into consideration.

4. If one person takes hold of another person's clothing and pulls it, and it tears, then he will have to pay for the damage in full. But if he takes hold of the skirt of someone's garment but does not pull it, and then the person whose garment he is holding pulls away, and his garment tears, then each will have to pay for half the damage. In the first case he caused the

damage directly himself, and in the second case the damage was caused by both their actions, so each has a half share in the responsibility. Similarly, if someone sits on the skirt of another person's garment, or on his shawl, and then that person stands up, and his garment or shawl tears, then again half the cost of the damage will have to be paid.

5. If someone's child causes damage to someone's property, then compensation will not be taken from his heir (The person who stands to inherit from a child is also the person who is appointed as his guardian.) (Trans.) If the child has any property in his name then it will be from that. Otherwise, the matter will wait until he is able to pay, and it will then be taken from him.

(This may at first sight seem strange, but in fact there is very great wisdom in this, and a remedy for a great many of the problems of bringing up children. No serious person can suggest that children can be brought up without any punishment. At the same time, hitting them repeatedly is not a good idea either. So, the simple thing to do is to treat them where possible in the same way as they will be treated as adults. Adults are not beaten when they cause damage. They are required to pay for the damage.

This usually has a strong quietening effect on a person. Even a small child is well aware of the meaning of the word “my”. Damage to someone else’s property may not worry him, but if the burden is shifted back onto his property, the seriousness of the matter and the desirability of exercising caution so as to avoid another such a catastrophe in the future, becomes immediately apparent. A lecture will generally fall on deaf and unintelligent ears. A beating usually has only a short-term effect. It seldom gets the point across, and tends to cause long term resentment and aggression as well. Paying

11

for something is a slow, thought-provoking process that brings home many lessons.

Much of the discipline problems of schools and madrasahs would be solved by actually implementing this law. Unfortunately, we generally regard good ideas as things to keep safely locked up in a book, and bad ideas as “practical”.) (Trans).

6. If someone causes some part of a house to collapse, or cuts down a tree, or pulls down the fruit of a tree, then he will have to give compensation. If the débris of the house have any value, that will be set off against the cost of the damage, or else the débris will be given to the person who caused the damage, and he will have to pay the full price. The owner has both these options. Similarly, the value of the cut wood or the fallen fruit may be set off against the damage, or else they may be given to the person who caused the damage, and the full cost taken. The owner has both options.

7. If a fire breaks out in an area, and without asking the owner, people demolish a neighbouring house, or in putting out the fire they cause damage to it, then those people who caused the damage will have to pay compensation. However, if they demolished it on the instructions of the responsible government officer, then they will not be responsible, and the responsibility for compensation will rest with the government.

8. If someone is watering his crop, and through his carelessness water flows into another field and

causes damage to the crop, then he will have to pay compensation for the damage.

IT IS NOT LAWFUL TO CAUSE DAMAGE IN RETALIATION FOR DAMAGE

If Zaid damages property belonging to Umar, then Umar can take compensation from him, but the Sharî’ah does not give him the right to damage or destroy any of Zaid's property. If he does, then he is sinful, and he will also have to pay compensation for the damage to Zaid's property. He will not be able to excuse himself from either moral blame or from liability for compensation on the grounds that he did this in retaliation for damage done to his own property. Each will then have to pay compensation to the other.

THE PERSON WHO DOES THE DAMAGE IS LIABLE, NOT THE ONE WHO GIVES THE ORDER

Ahmad tells Khàlid to go and break or throw away some article belonging to Tàriq, or to go and assault some person. Here the punishment and liability for compensation will come on the one who assaulted the person, or broke or threw away the article, not on the person who gave the order. However, if this order was given by a legitimate officer of a legitimate Islamic government, or the government compelled him to do it, then he will not be responsible.

12

(However, if a government is in the habit of instructing its officers to cause harm to people without just cause, then it will not be legitimate to remain in their employ.) (Trans.)

BECOMING A CAUSE OF DAMAGE

In the question of becoming a cause of damage, the basic principle to bear in mind is that a person will be liable if there is intent or excess on his part.

"The person who is the indirect cause is not liable unless there is intent or excess on his part"

For example, someone opens the lock to someone's room or box, and then his goods get stolen. The person who opened the lock will then be liable for compensation. Or if someone stops water from reaching a field or orchard and the crop or trees dry up. Or he spills excess water off his field onto another person's field and causes damage to it. In both these cases he will have to pay compensation, because he knowingly became the cause of harm.

If someone is walking down the road, and some animal takes fright on seeing him, and runs away and gets lost, then he will not be responsible. But if he makes some noise or gesture with the intention of giving it a fright, and it runs away and is lost, then he will be held liable, and will have to pay for it.

If someone is out hunting with a gun, and the noise of his gunshot causes some child to faint and die, or some animal to break its harness and run away and it gets lost, then the person who fired the shot will not be liable. But if

he intentionally fired a shot to frighten them, then he is liable.

If someone digs a pit in a public road by order of the government, and someone falls into it and dies, then he will not be responsible for his death. The government will be responsible. But if he dug it of his own accord, then he is liable. And if he digs a pit on his own private land, and someone falls into it, then he is not liable.

(641)The liability for damage done by employees and tradesmen has been discussed in Chapters 16 and 17.

COMPENSATION FOR DAMAGE BY ANIMALS.

1. If by chance, during the night or day, some person's animal gets loose, and it eats someone's plants, the owner will not be held liable for compensation. The Nabî sallallàhu alaihi wa sallam has said:

"The damage done by dumb animals is one of those things in life that have to be tolerated"

But if someone has intentionally left an animal loose, or knew that it was loose, and made no effort to restrain it, or if a herdsman was with it, but it still got into someone's field, then in these cases, be it day or night, the owner will be held responsible.

2. If someone is taking his animal along the public road, and it grazes in someone's crop, or tramples it or sits in it, and many plants get destroyed, then he will have to pay compensation. However, if it

13

scrapes its foot on the ground, or kicks or sweeps its tail and causes some damage, then he will not be held liable because this is an animals natural habit which the owner cannot make it leave.

When someone halts his animal he is responsible for any damage it might cause. But if he halts it to allow it to urinate, or to pass its droppings, then he is not responsible. Similarly, if someone stops a vehicle to cool the engine, or to change a tyre, he is not responsible for damage, provided that he exercises due care.

(642)3. The same orders apply to riding animals as to other

animals. But if someone is riding along the road, and some person gives his animal a fright and it bolts, then any damage that it does will be the responsibility of the person who startled it, and not of the rider.

And if the animal kicks that person and he dies, then the rider will not be held responsible, because it was the result of that person's own action.

4. If someone's animal attacks people with its horns, or his dog bites people, and people have told him to keep it under control but he does not do so, then he will be liable for any harm it causes.

5. If there are two herdsmen driving some animals, one in front and one behind, and the animals cause some damage, then both will be liable.

VEHICLES (643)

The same order applies to vehicles such as bicycles, motor cars, railway trains, or aeroplanes. If because of some deliberate action, or because of carelessness, some damage or injury is caused, then the driver or crew of the vehicle will be held responsible, and not the owner. For example, if a train leaves the station before being signalled to do so, or if a bus is on the wrong side of the road, or is exceeding the speed limit, and there is an accident, then the driver will be responsible for the damage, and will be held liable to pay compensation. However, if some other person leaves a rock on the road, and the driver does not see it and there is an accident, or some pedestrian steps into the path of a motor cycle, and it hits him, or someone suddenly lies down in front of an approaching train, then in such cases neither the owner nor the driver, nor the government is responsible for compensation. But if by chance a bus or train or aeroplane crashes, and lives are lost, then the responsibility for injury and loss of life will not rest with the driver or pilot but with the company or government, because the Fuqahàa put the responsibility for Diyat (blood-money or indemnity) in the case of accidents onto the Âqilah. In the early days of Islam, those people who were registered together in one group were each the others Âqilah, that is to say, each member is responsible for a share of the Diyat of any member in case of accidental injury to, or death of, a third party. Later this responsibility was transferred onto the tribe or clan. But today conditions have again changed, and the responsibility should be put onto the company or

14

government. The Fuqahàa have classified death in such an accident as Qatl Khata' (Accidental killing) and the Âqilah here would then be the railways or company. So, the company or government can punish the pilot or driver, but they cannot hold him responsible for the payment of Diyat. This is also a new Mas'alah, and needs further study by the Ulamàa.

CHAPTER 25

WAKÀLAT

AGENCY or POWER OF ATTORNEY

(644)

THE NEED FOR WAKÀLAT

In a man's life there are countless works that he does not have the opportunity or the ability to do himself, but gets some other person to do. There can be all kinds of reasons for someone not being able to do some work himself. Sometimes it happens that a man needs to do some work, but does not have the necessary aptitude and training to do it himself. Or it may be that he is busy with some work, and then some other work comes up, so he has to get help from someone else. Or it may be that the work is so extensive and involved that it is beyond the capacity of one person to do it, so he has to share the work with someone else. So, whatever work a man does or can do himself, he can also get some other person to do. The Sharî’ah gives permission for this, and this is called Wakàlat

THE MEANING OF WAKÀLAT

The literal meaning of Wakàlat is looking after, taking custody, remedying, or application of skill. For this reason

15

one of the qualities of Allàh is al Wakîl because he looks after our works and protects them and organises them. From this, the word Tawkîl is derived, which means to appoint someone to take charge of something, and also to leave some work in some other persons care. The word Wakàlat is also used in the sense of Tawkîl. The word can therefore be either transitive or intransitive.

Muwakkil The person who entrusts his work to someone, or appoints him to take charge of it, is called the Muwakkil

Wakîl The person who accepts the responsibility is called the Wakîl.

Muwakkal bihi The work for which the Wakîl is made responsible is called the Muwakkal bihi

For example, Ahmad needs to buy a watch, but he does not know how to recognise a good watch or a bad watch. So, he asks Khàlid, who has experience of watches, to buy a good watch for so many rupees on his behalf. Khàlid agrees to buy it for him. So, Ahmad is Muwakkil and Khàlid is Wakîl and the watch is Muwakkal bihi

(645)So, in this way a person can make someone his Wakîl in any work that he can do himself, but which he for some reason does not happen to do himself, such as buying and selling, mudhàrabah, shirkat, giving donations, keeping securities, making settlements, marriage, or

pursuing legal claims. A Muslim can also appoint a non-Muslim as his Wakîl. (But see Chapter 6 on Sharàkat )

The Nabî sallallàhu alaihi wa sallam himself made other persons his Wakîl for many works. Hazrat Urwah bin Abù Ja'd Al Bàratî tells that once Huzùr sallallàhu alaihi wa sallam gave him one Dînàr, and asked him to buy a goat. So, he went and he bought two goats for one Dînàr, and then sold one of the goats for one Dînàr and then brought one goat and one Dînàr to Huzùr sallallàhu alaihi wa sallam. So, Huzùr sallallàhu alaihi wa sallam prayed for him that even if he bought earth, he should make a profit on it. In the same way he once delegated Hazrat Hakîm bin Hazzàm to buy an animal for Qurbànî, which he accordingly did. On another occasion there was a large amount of grain collected for Sadaqat ul Fitr, so Huzùr sallallàhu alaihi wa sallam appointed Hazrat Abù Hurairah radhiyallàhu anhu to look after it.

The marriage of Huzùr sallallàhu alaihi wa sallam to Hazrat Maimùnah radhiyallàhu anhà was made through Wakàlat. At that time Huzùr sallallàhu alaihi wa sallam was in Madînah Munawwarah, and she was in Makkah. Huzùr sallallàhu alaihi wa sallam sent his servant, Abù Rafi' and one Ansàrî. They then made the Îjàb and Qubùl.

THE DEFINITION AND STATUS OF WAKÀLAT

In Urdu today the word Wakàlat is commonly used to refer to the profession through which, by any means, be it truth or lies, rightful or wrongful, any kind of legitimate or illegitimate claim is pressed, and efforts are made for the

16

release of murderers and brigands, and the word Wakîl is used to refer to the person who represents people in putting their false or genuine cases in terms of non -Muslim laws, before non-Muslim courts, and providing those who practice criminal professions with the legal encouragement that allows them to daily expand their activities. In Sharî'ah the meaning of Wakàlat is a great deal broader and more elevated than this, and a person who earns money without distinguishing between what is rightful and wrongful, and by giving encouragement to crime, will not be called a Wakîl.

It has been stated before that whatever legitimate responsibility is given to a person is called in Sharî’ah an Amànat or trust. So, that person must discharge this responsibility in the same way that a trustee looks after and returns the article he has been entrusted with.

Wakàlat is also a responsibility so it is therefore necessary for a Wakîl to discharge his responsibility in the same way as an Amîn discharges his responsibility of Amànat.

Huzùr sallallàhu alaihi wa sallam has said that a Khàzin (treasurer) or Amîn is the person who willingly discharges the work he has been entrusted with. On this basis the Fuqahàa have defined Wakàlat in this way:

"Delegation one one's work to another, and appointing him as one’s representative."

The other three Imàms also define Wakàlat in more or less the same words. But they put the proviso that this agreement applies only up to the time of death, so that

Wasîyat should not be included in it, because it comes into effect after death.

Obviously, just as in all agreements, those factors that apply automatically must also be taken into account. One is that there be mutual agreement; secondly that the agreement should not be Bàtil, Haràm or wrongful, that is the Muwakkil and the Wakîl must both be agreeable to delegate or accept the responsibility in question, and that this agreement should not be on any Bàtil transaction. So, if they both obtain a judgement in a non-Muslim court that is against the Law of Islam, then that judgement will be Bàtil, and if they insist on it, this will be a crime for which they can be punished, because agreement on something Haràm is a crime.

So, from this explanation the limited, wrongful, and irresponsible nature of the present day profession of Wakàlat should be evident, and the broad and responsible meaning of this term in Sharî’ah should also be clear.

If one person gives another permission to do some work, this is also Wakàlat. The person taking permission is then his Wakîl.

THERE ARE TWO FORMS OF WAKÀLAT

There are two forms of Wakàlat - specific and general. An example of specific Wakàlat is that one person delegates another to buy a motor vehicle for him within a certain sum of money, or to pursue a law-suit for him. And general Wakàlat means that someone delegates another person

17

to take charge of a business, or to handle all his legal affairs for him. Then both of these can be either paid or unpaid. The same laws apply to both, except for one transaction in which the responsibility of an unpaid Wakîl is less. This is covered later in the chapter. A paid Wakîl (Wakîl bil Ujrat) includes all those persons who do any work on a salary or commission basis. All the employees of any government are its Wakîls. Therefore they must work according to its instructions and pleasure.

If a person gets some work done by his personal servant, then that servant is regarded as being his Wakîl. Similarly, if he appoints an agent on commission, he will also be regarded as his Wakîl. So, each must work according to the instructions that he is given.

A MESSENGER IS NOT A WAKÎL

If some person executes some work on behalf of another, then he is his Wakîl. But if he is only an intermediary, then this is called Risàlat i.e. taking a message, not Wakàlat. For example, if someone sends his servant to the market to buy something, then this is Wakàlat. But if he has already bought something, and he sends his servant to go and collect it, this is Risàlat, not Wakàlat.

THE ELEMENTS AND CONDITIONS OF WAKÀLAT

1. As in other transactions, there is an agreement or contract between the Muwakkil and the Wakîl. Therefore it is necessary that there be verbal or written Îjàb and Qubùl. For example, someone asks

another person, or writes to him, asking him to do some work for him, and he answers or writes back answering that he will do it, then Îjàb and Qubùl has been made. Also, if he does not give any verbal or written answer, but starts doing the work, then he has become his Wakîl, and if he refuses verbally or in writing, then that is his right.

2. After Îjàb and Qubùl, the second condition is that the Wakîl do the work in accordance with the opinion and wishes of the Muwakkil. If he does some work according to his own opinion, then he will be responsible for it himself. For example, someone tells his servant to buy half a kilogram of meat and he buys one kilogram. Or he tells him to buy apples, but he buys pears. Or he tells him to buy a roll of cotton, and he buys polyester. So, he can refuse to accept these things, and if the shopkeeper refuses to take them back, then the employer can give them over to that servant to sell or use, and take their price from him.

Similarly, if government officers or employees act against their instructions, and some harm ensues, then they are liable for it, not the government. However, if someone told his servant to go and buy meat, but did not specify how much, or to buy a roll of cloth, but did not specify the type, then he will have to accept whatever he brings.

3. The third condition is that both the Muwakkil and the Wakîl must be possessed of intelligence and

18

discrimination, that is to say, neither can be an ignorant child or a madman. A child or mad person cannot become anyone's Wakîl, nor can they appoint a Wakîl.

The meaning of intelligence here is that the Wakîl must be competent to do the work he is being appointed to do.

Whatever work a person is allowed to do himself, he can appoint a Wakîl to do.

4. The position of a Wakîl is that of a trustee and representative. Therefore, it is necessary that whatever work he does in this capacity, he should not do in his own name but in the name of the Muwakkil. However, in buying and selling, giving or taking something on hire, or in taking on employees, he does not have to observe this condition. But in making gifts or donations, lending property, securities, depositing Amànats, giving loans, or entering into Shirkat or Mudhàrabah, it is necessary to act in the name of the Muwakkil. For example, if someone makes someone else Wakîl of all his business affairs, then if the Wakîl gives anything belonging to the Muwakkil as a gift or donation, or accepts any gift on his behalf, or lends out or borrows any article on his behalf, or becomes share-holder in any transaction, or gives out the Muwakkil's money on Mudhàrabah, or takes money on Mudhàrabah on his behalf, or makes a marriage agreement on behalf of the Muwakkil’s children, or

pursues a lawsuit on his behalf, then in all these cases, the Wakîl must make it specifically clear that he is acting as that persons agent or Wakîl. But if he is delegated to buy or sell, or to take or give out on hire, then even without taking the name of the Muwakkil, he can still buy and sell, give out or take on hire, or employ staff. The difference here is that in those transactions that he is permitted to do in his own right, if he does so, then he is personally liable for any claims arising from them. And in those in which he may only act in the name of the Muwakkil, he is not personally liable. Only the Muwakkil will be liable. For example, if someone's employee buys some goods on credit, and does not specify for whom he is buying them, then in this case the seller can claim payment only from him, and not from his employer. So also, if he sells something on credit, then he is responsible for collecting payment. However, if the purchaser returns the goods to his employer, then the employee is free of responsibility. And if at the time of buying or selling on credit, the employee states that this belongs to his employer, or is for his employer, then he will not be responsible. He will then be in the position of a messenger or Qàsid. If in those transactions which he is not permitted to do in his own name, he in fact does so, then his Wakàlat will be invalid, but they will be regarded as valid in his right. But in both cases any profit made will belong to the Muwakkil. However, where it is not done in the name of the Muwakkil, the responsibility for claims will rest with the Wakîl. And where he acts in the name of the

19

Muwakkil, the responsibility for all claims will rest with the Muwakkil. For example, if he makes a marriage agreement in the capacity of a Wakîl, then it is the Muwakkil who is responsible for the Mahr. The woman cannot claim it from the Wakîl. And if the judgement in a lawsuit goes against the Wakîl, then whatever fine or claim has to be paid will be the responsibility of the Muwakkil, not the Wakîl.

Similarly, if the Muwakkil commits some criminal offence, then the punishment will be inflicted on the Muwakkil himself. He cannot delegate someone to take his punishment, nor does the punishment have anything to do with his Wakîl. If he killed someone, it is he himself who will be put to death, or will have to pay Dîyat.

5. The Wakîl buys something for the Muwakkil, or collects some payment on his behalf, and then by chance the thing he has bought falls from his hand and breaks, or gets lost, or the money he has collected gets lost. If this did not happen as a result of carelessness or inattention, or deliberate action, then he cannot be held liable for the loss, because he is in the position of an Amîn, and an Amîn is not liable for loss of an Amànat. For example, he bought a sugar bowl and, while bringing it, he gets knocked down and the sugar bowl breaks. Or he is bringing some money, and someone cuts his pocket and steals it. In these cases he is not liable for the loss. But if he was walking in the roadway instead of the pavement, or was keeping the money in a

side pocket, despite having an inside pocket, then he will be held liable, because here there was breach of rules and carelessness. Or if he put it down in his house and it gets broken, then he will be liable for its price.

6. A Wakîl does not have the right when the Muwakkil sends him to buy some goods on his behalf, to buy those same goods himself. But if the Muwakkil has specified some price, and no- one is offering at that price, then he may buy for himself at the higher price. But if the Muwakkil has not specified any price, then he may not buy for himself at any price.

7. If someone makes some person his Wakîl in some transaction, without any provisos, then the Wakîl is entitled to make the transaction in any way he decides, according to his discretion. For example, the Muwakkil has told him to take so much money and use it in trade. Now the Wakîl is free to buy or sell on credit. However, he may not give credit for a longer period than is the general practice among other traders. If the condition is made that he must do business on a cash basis, then he may not go against this condition. If an employee buys something at a high price, then if the difference is small, it will be overlooked. But if it is large, then the employer does not have to accept it.

8. If someone wants to bring a civil or criminal case before an Islamic court, and he is not competent to put forward his case himself, then he can appoint a

20

Wakîl to act for him. But it should be remembered that, as far as is possible, a person should not put his case for judgement before a non-Muslim court on the basis of non-Muslim laws, nor should he become the Wakîl of any Muslim who is brining a case in terms of non-Muslim laws before a non-Muslim court.

The Holy Qur’àn has called the person who applies for or, has an application brought, or presents an application for judgement in terms of non-Muslim laws a Dhàlim, a Fàsiq and even a Kàfir

"And whoever does not judge according to what Allàh Almighty has sent down those are the ones who are infidels."

(Essentially, this has to do with a person using such laws to obtain something to which he is, in terms of the Sharî’ah, not entitled. Obtaining his legitimate rights is a different question.) (Trans.)

9. If two persons or more are appointed as Wakîls, then they must both be present when any transaction is made.

10. A Wakîl does not have the right to appoint someone as his Wakîl without the permission of the Muwakkil. For example, if someone sends his employee to buy something, and he gives the money to a third party,

and sends him to buy it, then the employer has the right to accept or refuse the article as he wishes.

11. If a person send his employee or some other person to buy grain, then the person he has sent does not have the right to quietly supply it himself. If he wants to supply it, he must tell him that he has this in his possession, and can offer it to him.

12. NON-MUSLIM WAKÎL

If a non-Muslim appoints a Muslim as his Wakîl this is legitimate. But it is not valid for a Muslim to appoint a non-Muslim as his Wakîl. This order is not based on some narrow-minded outlook. It is because a non-Muslim Wakîl will not know the laws of Islam on what is Halàl and Haràm. Therefore there is a strong likelihood that he will do some unlawful transaction, and so make a Muslim a party to Haràm dealings and earnings. (Al.Fiqh Ala'l Madhàhib il Arba'ah v3 p176)

13. Wakàlat is not legitimate in physical Ibàdàt (acts of worship) but it is permissible in Ibàdàt in wealth. For example, no-one can make Salàt or keep fast on behalf of another person. However, in Zakàt a sum of money can be given to some person to give to those who are entitled to it. For example, when people send Zakàt money to a Madrasah, then the Madrasah becomes the Wakîl of those giving the Zakàt. Also in Hajj delegation is permissible. (Al.Fiqh Ala'l Madhàhib il Arba'ah v.2 p.177)

21

14. If a person is delegated to sell some article then it is not permissible for him to buy it himself. If he wants to buy it, he must tell the Muwakkil

15. If a Wakîl voluntarily does some person's work for him without payment, this is legitimate. If he sells some property, then he does not have any responsibility to collect the price money. However, if there is some difficulty in collecting it, then, certainly he should help the Muwakkil to collect it. But if the Wakîl is being paid, for example in the case of an agent or broker, then he is under obligation to collect the price money. (Sharh ul Majallah p812 (clause 1504)

TERMINATION OF WAKÀLAT

1. Whether it be before or after doing some work, at any time he wishes, the Muwakkil may terminate the Wakàlat of his Wakîl. For example, someone delegates someone to buy a roll of cloth for him. Then, before he buys it, he tells him not to buy it. Now he does not have the right to buy it. In the same way someone makes some person his Wakîl to perform his son's Nikàh. Then, before he performs it, he tells him not to do so. This is his right. Also, if before doing the work, the Wakîl excuses himself, it is his right. But if the Wakîl is doing some work involving credit, then if terminating the Wakàlat will involve infringement of some person's rights, or harm to some person, then it may

not be terminated. But if there is no problem like this, then both the Wakîl and the Muwakkil are free to terminate the Wakàlat.

2. The Wakîl may be notified of termination of the Wakàlat either verbally, or through some person, or in writing. All are valid. The same applies to notification of the Muwakkil by the Wakîl.

22

CHAPTER 26

WAQF or

CHARITABLE TRUSTSAND INSTITUTES

The literal meaning of Waqf is stopping or reserving, and in Sharî'ah Waqf means reservation of one's property, or of its benefit, for the purpose of public benefit. And, just as by giving something in Sadaqah, it ceases to be the property of the donor, and he receive Thawàb (reward) for it, so also by making something Waqf for the public good it ceases to be the property of the Wàqif. And if he has made it Waqf with good intention, for some good purpose, then for as long as people benefit from it, even more reward than for Sadaqah will continue to be written to his account. The Nabî sallallàhu alaihi wa sallam has said that after death a man is cut of from all works, except for three things whose reward will continue to come to him:

"Sadaqah Jàrîyah, Ilm from which people continue to benefit and good children who pray for him"

Sadaqah Jàrîyah means that a person makes something Waqf, and anybody and everybody continues to benefit from it materially, or it becomes a means for some good work to be done. So, for as long as people benefit from it, or that good work continues to be done, he will continue to be rewarded for it. And Ilm from which people benefit

means that a person writes a book, or donates a book, or teaches some students of Dîn. So, for as long as the book or those students give benefit to people, that person will continue to get reward.

At the time when the Messenger of Allàh sallallàhu alaihi wa sallam made Hijrat from Makkah Mukarramah there was a great shortage of sweet water for drinking in Madînah Munawwarah. In the area that Huzùr sallallàhu alaihi wa sallam and his companions radhiyallàhu anhum were staying there was only one well, Bi'r Rùmah, which belonged privately to one person, who used to sell its water. Huzùr sallallàhu alaihi wa sallam said to him that if you donate this well for the benefit of the public, then Allàh Almighty will repay you for it in Paradise. He replied that: "O Messenger of Allàh, apart from this I have no means of support for my family." Huzùr sallallàhu alaihi wa sallam said that whoever will buy this well, and make it Waqf for the Muslims, Allàh Ta'àlà will repay him in Paradise. Hazrat Uthmàn radhiyallàhu anhu, when he came to know of the wish of the Nabî sallallàhu alaihi wa sallam, bought the well from its owner for 35 000 Dirhams and came to Huzùr sallallàhu alaihi wa sallam and told him that he had made this Waqf for the Muslims. Imàm Baghawî quotes this report from Bashr bin Bashr al Aslamî.

Also Hazrat Umar radhiyallàhu anhu came and presented before the Nabî sallallàhu alaihi wa sallam his share in the Màl ul Ghanîmat of Khaybar, and said that this land I am very fond of. I would like to give it in Sadaqah in whatever way you say. Huzùr sallallàhu alaihi wa sallam said that instead of giving it to any one person, keep it with you, and

23

reserve its produce for the poor and the needy. So, this is what he did. And it was also announced that as from now, this land cannot be sold or given or inherited. So, Huzùr sallallàhu alaihi wa sallam left the responsibility for looking after it with Hazrat Umar radhiyallàhu anhu, but set its benefit aside for the public good. (Al Muntaqà)

Once Huzùr sallallàhu alaihi wa sallam said that if anyone makes a horse Waqf in the path of Allàh, with Îmàn and in the hope of reward, then its food and drink, and even its dung and its urine, will be a cause of reward for him.

(Looking after a horse also involves cleaning stables and so on.) (Trans.)

When this àyat of the Holy Qur'àn was sent down:"You will not reach devotionuntil you spend(in the path of Allàh)From the things that you love"

Hazrat Abù Talhah Ansàrî came to Huzùr sallallàhu alaihi wa sallam and said that I am attached to my land at Bairhà. I want to make it Waqf in the path of Allàh. Huzùr sallallàhu alaihi wa sallam told him to rather make it Waqf for the benefit of whoever was poor and needy in his clan. So, he made it Waqf for the benefit of Hasan bin Thàbit, Ubayy bin Ka'b, and some other poor members of his clan.

Sheikh ibn Qudàmah writes about the Sahàbah Kiràm radhiyallàhu anhum ajma'în that "There was no Sahàbî

who possessed any substantial property, except for what had been made Waqf to them."

From these instructions and statements of Huzùr sallallàhu alaihi wa sallam the following points become evident: (658)

1. There is reward for small sums of money given to help individuals. But it is limited. But if a person establishes some public facility from which not only two or three persons, but countless numbers of people benefit, then its reward continues to accumulate for as long as the facility continues to exist. For example, someone establishes a Madrasah or a Library; then for as long as people benefit from them, he will continue to get reward. But this reward is dependent on two conditions.

The first is that it be done purely for the pleasure of Allàh, and that desire for fame and reputation is not hiding in the heart. If these things happen to come of their own accord that is a different matter.

The second is that the thing that is made Waqf should in fact be beneficial to people. Beneficial means that through it a man fulfils some essential material, worldly, educational, or moral need. It must be something that builds up a person’s manners and morals and behaviour, and not something that corrupts them. If these two conditions are not met, then for as long as the Waqf remains, instead of reward, blame and punishment

24

will accumulate in his account. Huzùr sallallàhu alaihi wa sallam has said that whoever spreads some good way among people will get the same reward as all those who follow it. And whoever spreads some evil way among people will get the same punishment as all those who follow it. For example, if someone instead of a Masjid, builds a heathen temple, or instead of a Madrasah builds a Cinema, or a Library of obscene books, and makes them Waqf, or if instead of giving children correct education, gives them an education of superstition or devious rationalism, then however much punishment comes to those who worship in the temple, or to those who watch films in the cinema, or read novels from the library, or results from the superstitious or twisted rationalistic outlook with which those children grow up, all of it will also be written to the account of the public malefactor who established these facilities.

2. The second thing that is evident from this is that the thing that a person makes Waqf should not be low quality or reject, but should be something for which the person feels some love and attachment. So, if a person owns several houses or several plots of land, and he wants to make one of them Waqf, then it should be the one to which he is most attached or at least one of the better ones. But if he has only one house, and he wants to make it Waqf, then it does not matter whether it is a good house or not. He can make it Waqf, and he will get the same reward as for a good house.

Similarly, if a person has only one son and has great love for him, then piety and religious conscience and awareness requires that, instead of sending him for irreligious and wrong education, he should rather send him for a purely religious education. It is the prayers and the actions of such children that will be a Sadaqah Jàrîyah for him. Otherwise, if he gives his child a wrong education and a bad moral upbringing, and makes all the necessary arrangements for his moral corruption and mental confusion, but by some chance he still turns out to be good, he will get no reward for this child's actions.

3. The third thing is that the responsibility of looking after the Waqf property should be entrusted to the kind of people who will not eat up its income, but will use it for the public good. In this two points should be kept in mind. The first is that this responsibility should not be given to any person who himself wants to be given it, and secondly, that it should not be given to someone who is blatantly sinful and irreligious, and does not adhere to the orders of Islàm. If either of these qualities is found in a person, then it is not legitimate appoint him as the Mutawallî of any Waqf.

THE DEFINITION OF WAQF

Imàm Abù Hanîfah rahmatullàhi alaihi defines Waqf in these words:

25

"To give the benefit of some legitimate property as Sadaqah, while at the same time retaining the ownership on a similar basis to Âriyat"

And the Sàhibain and the other three Imàms define it in these words:

"Retention of property in the ownership of Allàh"

In other words abandonment of ones own property rights over it, and removal of the right of others to acquire it as property, and making it purely the property of Allàh"

According to Hazrat Imàm Abù Hanîfah rahmatullàhi alaihi there are two ways that the Waqf property can leave a person's ownership. One is that the government removes it from his possession. The other is that on his death, it leaves his ownership, as in Wasîyat. And the Sàhibain and the other three Imàms rahmatullàhi alaihim say that without either of these conditions, by making it Waqf, it leaves his ownership, and if he has made it Waqf to some person, then it becomes that person’s property.

There is a slight difference in the opinions of Imàm Abù Yùsuf and of Imàm Muhammad and the other three Imàms. Imàm Abù Yùsuf says that as soon as a Masjid is built it becomes Waqf. And Imàm Muhammad says that the Waqf is complete when Salàt with Jamà'at starts to be made in it. Or, in the case of something other than a Masjid, when the Wàqif appoints someone as Mutawallî.

ORDERS ON WAQF

When a person states verbally that I have made some article of property Waqf, then it becomes Waqf. Or, if he gives some land to be used as a graveyard, then as soon as someone’s body is buried in it, it becomes Waqf. And if he builds a Masjid, then whether he says anything or not, it becomes Waqf.

There are two kinds of Waqf. One is that a person makes something Waqf for Allàh and thereafter takes no benefit for himself from it. The other is that he makes the condition that he will benefit from it in his lifetime, or that after his death a part of its benefit will go to his children, and the rest for the public good.

In both cases the Wàqif has no rights over the property. It now belongs to Allàh. Now he cannot sell it or mortgage it, nor can anyone inherit ownership of it. But if he has reserved some share of its benefit for his children, they will continue to get that amount.

IMPORTANT MASÀ’IL

1. If any Waqf property is deteriorating, then it is obligatory on the Mutawallî to have it repaired. If its income is not sufficient to cover the cost, or it does not have any income then, if there is no Islamic government, it is obligatory on the Muslims in general to repair it.

26

(Where the original building is extravagant it would presumably not be obligatory to maintain it to the original standard, as this would involve Dhulm on the people.) (Trans.)

2. If anyone has built a Masjid, then it is not permissible for him or for any other person to take anything from it such as a brick or mortar or a mat or a lotà for his own personal use. If anything becomes worn or damaged, or is no longer needed it should be sold and the money spent on some work related to the Masjid.

3. If someone has built a Masjid, or built a Madrasah, and made it Waqf, and beside it he builds some shops as a means of income for himself and his family, then this is permissible. By virtue of their being adjacent to, or underneath the Waqf property they will not be regarded as automatically being included in the Waqf.

4. Once a Masjid has been built, or a body has been buried in a graveyard, the person making them Waqf can neither give or sell the Masjid or graveyard to anyone.

5. Imàm Abù Yùsuf rahmatullàhi alaihi permits building a private building below and a Masjid above it, or a Masjid below and a private building above. And Imàm Muhammad rahmatullàhi alaihi at first did not permit building a house above and a Masjid below. But when he saw the crowding of the houses in Rai,

then he also agreed to this. The importance of this Mas'alah can be appreciated in large cities.

:

27

CHAPTER 27

AL QISMATU WA'L MUHÀYÀT or

DIVISION OF PROPERTY AND BENEFIT

When some legitimate movable or immovable property is jointly owned by two (or more) persons, and the need arises to divide it between them, then the way this is to be done, without infraction of the rights of either party, is called in Sharî’ah Qismat or Muqàsamah. And if the thing to be divided is not some material goods, but the benefit of some thing, then this is called Muhàyàt or Tahàyu'. For example, a room is jointly owned by two persons. They make an agreement between themselves that one of them will use the room for one month, and the following month the other will use it. Or two persons drill a borehole, and they make an agreement that each of them may draw water from it for two hours at a time. Whether the thing to be divided is some material item or a benefit, division is established from both Sunnah and Ijmà' of the Ummah.

It was in accordance with these principles that Huzùr sallallàhu alaihi wa sallam used to divide Màl ul Ghanîmat and Fayy (i.e. Enemy property captured or surrendered in war). Inheritance is also divided according to the same principles.

(There is a very bad habit among translators of using words like “booty” or “spoils” to translate the term Màl ul Ghanîmat. The English language is not greatly concerned with the legal issues involved in this question, whereas Islàm is very much concerned with legal issues. The word “booty” normally means the property looted by an aggressor from his victim, be it a by gang, or some imperialistic adventurer, and be it be from some innocent victim, of from another gang of the same type. This is not the situation at issue in Sharî’ah. The word “spoils” is less crude, but it is still difficult to avoid these kinds of implications.

The Sharî’ah does not give any government a licence to go out and loot other peoples. However, there are also situations where war cannot be avoided without something worse happening. When a battle or war is won, then there comes the question of what to do with the property of the enemy forces. Wealth cannot be left in the hands of prisoners who are still likely to be hostile, nor can it be left without an owner, otherwise a free-for-all is created. So basically, the ownership in this case reverts to Allàh, and to His Messenger, and is then to be divided out according to the rules he has set out.

War involves considerable loss of time and wealth to all those who take part, and those who did not provoke it unlawfully have a right to some compensation for their loss and their hardship in fighting. Equally, those who forced the issue by their excesses or intransigence have an obligation to compensate the other side. These matters are not amenable to calculation, so the simple thing is that the captured property of the losers is shared out among the army of the victors. If the war was a just war then this is Màl ul Ghanîmat. If the war was provoked for the sake of loot, then regardless of what anyone calls it, it is loot. As to what constitutes a just war, that is an issue on its own. A careful examination of history will also show that where Muslim armies have gone to war for wrong reasons it is usually they who have been the losers.

It is not acceptable to confuse these two things, and by using terms like booty the translator is representing the True Religion of Allàh as

28

a form of aggressive imperialistic adventurism, and will have to answer to Allàh Almighty for this act of criminal libel and preaching of falsehood) (Trans)

Once there arose a dispute between Hazrat Zubair and one Ansàrî radhiyallàhu anhumà over the use of water. Huzùr sallallàhu alaihi wa sallam ordered that first Zubair should water his field, and then the Ansàrî should have his turn.

DEFINITION OF QISMAT AND MUQÀSAMAH

The literal meaning of Qismat or Muqàsamah is division of property or of shares, or separation. And in Sharî’ah it is defined in this way

"It means the separation of portions from each other, and mutual exchange of shared property"

THE RIGHT OF DIVISION

Division between the parties can be either by mutual agreement or by the government.

TYPES OF DIVISION

There are two types of division. One is forcible and the other is by agreement. Forcible division is through the government. Then, each again falls into two types: Taqsîm Tafrîq or simple division, and Taqsîm Jama' or division by groups.

SIMPLE DIVISION

In the dividing up there may or may not be some harm or loss involved.

If there is no loss involved, and only benefit to all parties, such as in the case of goods which are sold by weight or measure or number, then forcible division is legitimate as well as division by agreement. They will then be divided up by weight, measure, or number according to the way they are normally sold.

If there is loss or harm to both parties involved, then it cannot be divided by force, that is to say, that the government does not have the right to interfere in the matter, because the government does not have the right to cause harm. However, if both parties freely agree to accept the loss, then it is legitimate. For example, if there is one boat, or one pearl, or one cloth, or one well, or one borehole, or one machine, then the government cannot divide it forcibly, the two parties must divide it by agreement, or else one party should accept payment for his share, and let the other have it.

However, if there is harm to one party, as for example in the case of a house in which one person has a large share and the other only a very small share, then, if the person with the larger share brings an application for division of the property, it will be divided, because the share of the minor shareholder is an obstacle to the major shareholder in making use of the house. But if it is the minor shareholder who brings the application, and the

29

major shareholder opposes it, then in the view of some of the Fuqahàa it is legitimate, and in the view of the writer of Qudùrî it will not be divided forcibly, because this is harming the other party, and it is not the government's right to cause harm. However, if both parties agree then both kinds of division are legitimate.

If there is a single access road shared by two parties then it cannot be divided. But if there is some way in which the other party can construct another access, then it is allowed.

DIVISION BY GROUPS

Where the property to be divided consists of a variety of different things, then those things that are of the same type will be grouped together, and each group divided among all the shareholders. Each individual item will not be divided. For example, there may be large number of cows and goats, and of cloth of the same type and a quantity of some type of grain. There will be some difference between one cow and another and so on. But this difference will not be counted, and they will be divided in groups - cows, goats, sheets of cloth and grain. If the difference between individual items of one group is slight such, as in the case of ghee, oil, eggs, wheat, gold, silver, iron, brass then it is not necessary for all shareholders to be present at the time of division. But if the difference is substantial, as in the case of land or buildings then all shareholders must be present.

DIVISION OF LAND AND BUILDINGS

Land and building will be divided in various ways.

1. If the land is agricultural land, then whether it be fields or the courtyard of a house, it will be divided up by the square foot or square metre or acre or hectare. But if there is a building or fruit tree on it, then these items will be divided by value. If one part of the land is good and another part is not good, then they will still be divided on the basis of area in proportion to shareholding. If one party has a one third share and the other a two thirds share, then the one will get say one acre, and the other two acres. This will not be affected by the quality of the land. However, an effort can be made to draw the boundaries in such a way as to take the nature of the land into account.

2. If in the division of a house the share of one party has a higher value than that of the other, then if by adding some empty land, or some other way, the shares can be equalised, then this will be done. Otherwise the person with the extra amount will have to pay the one with the lesser share the difference in price.

3. (Note: if there are two shares involved, this will amount to half the value of the difference between the two - for example if there are three rooms to be divided between two persons. So, each is entitled to one and a half rooms, but this is not practical. So, the party who takes two rooms will pay for half a room.)

30

3. If a double storey building is divided, then a valuation should be put on each storey, and then division made because the person living upstairs does not enjoy the same facility as the person living downstairs. Therefore, the ground floor will have a higher value.

4. If the upper end of an access road or water channel is shared, and one of the parties asks for it to be divided, then this will depend on whether after division both parties will still have independent access and water run-off. If they do, then the division will be made. If not, the government will prevent such a division.

5. Anything that is destroyed by division will not be divided, because this will cause harm to both parties. For example, a motor vehicle or a bicycle or a machine or an animal will not be divided. That is to say, the government cannot compel its division. However, by mutual agreement and valuation, or in some other way, or by willing acceptance of loss by both parties, it can be divided. They are then responsible for their own loss. As far as is possible the government should avoid being a cause of loss to anyone.

6. If one party gets a house, and the other gets empty land, then he can build what he likes on that land. And can put as many doors and windows as he

wishes and build as many floors as he wishes. The other party does not have the right to stop him.

(This does not stop local council regulations being made to control heights of buildings or overlooking or overshadowing of properties. But in the absence of such regulations there is no absolute Shari' right)

7. If there are trees on a plot of land, then unless otherwise specified, they will belong to the person on whose portion they are growing.

MUHÀYÀT

As was said earlier the division of use or benefit of some item of property whose physical division would result in loss to both parties is called Muhàyàt.

DEFINITION OF MUHÀYÀT

"Muhàyàt means the division of the benefit of some shared property"

Muhàyàt can be of two types. One is division by place, the other is division by time. For example, if two persons have a share in a double storey house, and they agree that one party will stay in the upper part and one in the lower part, then this is division by place. And if they take turn in using something, this is division by time. For example, two person share the ownership of a room. They cannot both stay in it with their families. So, they agree to use it alternately for a year at a time. The same

31

applies in the case of a motor vehicle, or a machine, or a horse, or a borehole,

If they both want to they can strip a machine down, and divide up the parts between them. But because they will both lose by doing this, the avenue of Muhàyàt has been set out. That is to say, they make an agreement between themselves to share the use of the property, on a time basis in proportion to their shareholding.

1. If one of the shareholders to a room is absent during his turn to use the room and the other uses it in his absence without his permission, then on his return he is entitled to use the room for as long as the time his partner was using it. If there was any damage during this time, the party staying in it will be liable.

2. If a house has been divided, and one part of it is lying empty, then the other shareholder does not have the right to stay in it. But if by remaining empty there is risk of the house deteriorating, then the government will give it out on rent, and the rent will be kept for the owner.

3. Muhàyàt will be effected at the request of either party.

4. If one of the shareholders is not present, and the other shareholders is using the shared property, and his use is not causing any harm to it, then his use will be regarded as proof of permission from the absent shareholder.

5. If a jointly owned house or vehicle or machine has not yet been divided, either party may use it up to the limit of his share.

6. If a field is jointly owned, and one shareholder is absent, then the other party has the right to the whole field, provided that his cultivation is not harmful for the soil. And if there is a risk that his cultivation will be harmful, then it should be left fallow to recover its fertility, and he should only cultivate his own portion.

7. In the same way that in buying and selling the facility of Khayàr Shart, Khayàr Aib, and Khayàr Ru'yat have been given, so also in the division of articles of different kinds, these conditions are legitimate. But in the division of goods of one kind they are not. For example, an odd number of cows and goats, or of motor cars and trucks, are divided. One party then gets a cow and the other gets a number of goats. So, in this case either one can ask for a couple of days to think about it, and then make a final decision. Similarly, if one party has not yet seen the items that have come in his share, then upon seeing them he has the option of acceptance or refusal. And if some item has a defect dating from before the division, it can also be returned.

NO OPTIONS IN ITEMS OF THE SAME KIND

But if the goods divided up are of the same kind, then the options of Khayàr Shart and Khayàr Ru'yat are not

32

legitimate. However, Khayàr Aib will still apply. For example, if a number of Phillips bicycles, or Toyota Corollas, or cows, or goats, are being divided, then Khayàr Shart and Khayàr Ru'yat will not apply. But if after division one of the items is found to be defective, it can be returned. In other words, Khayàr Aib will apply.

~ END ~

33