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Allah Subhanahu wa Ta'ala has
created human beings in a state of dependence upon one another. Each individual does not
own all the things he needs one person has something which he can spare while at the same
t me he may need something which others have and which they can spare. Allah has directed
people toward exchanging goods and utilities through buying and selling because such
transactions make social and economic life function smoothly and encourage people to be
productive.
Various types of transactions and exchanges of property were current among
the Arabs at the dawn of the Prophet's mission. He approved and confirmed such types of
transactions which did not conflict with the principles of the Shari'ah and
disapproved and prohibited those business practices which were against the purposes and
aims of the Shari'ah. The prohibitions were due to specific reasons, as, for
example, trading in haram goods, transactions involving fraud or exorbitant
profits, or injustice to one of the contracting parties.
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Trading in goods which are
normally used for committing sin is haram. Examples of such things are swine,
intoxicants, and other prohibited foods in general, as well as idols, crosses, statues,
and the like. Permitting the sale or trade of such articles implies promoting and
propagating them among people, and consequently encouraging them to do what is haram, while
prohibiting their sale implies suppressing and ignoring them, thereby preventing people
from coming into contact with them. The Prophet (peace be on him) said, "Surely, Allah and His Messenger have
prohibited the sale of wine, the flesh of dead animals, swine and idols,"
(Reported by
al-Bukhari and Muslim.)
and also, "When Allah prohibits a thing, He prohibits (giving and receiving)
the price of it as well." (Reported by Ahmad and Abu
Daoud.)
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The Prophet (peace be on him)
forbade any kind of transaction which could lead to a quarrel or litigation due to some
uncertainty (See the chapter on
"The Prohibition of al-Gharar (Transactions Involving Uncertainty)" in
Muslim and others.) or which involved an unspecific
quantity to be exchanged or delivered. This includes the sort of transaction in which
there is no guarantee that the seller can deliver the goods for which he receives payment.
Accordingly, the Prophet (peace be on him) forbade accepting money for a stallion's or
male camel's covering, for fish in the water or birds in the air which one has not caught,
or for the offspring of a camel still in the female's womb, since there is an element of
uncertainty as to the outcome in all such transactions.
The Prophet (peace be on him) observed that people sold unripened fruits
which were still in the fields or orchards; if the crop were destroyed by blight or some
natural calamity, the buyer and seller would quarrel over who was to bear the loss. Hence,
the Prophet (peace be on him) prohibited the sale of fruit until they were clearly in good
condition (Reported by al-Bukhari and
Muslim.), unless they were to be picked on the spot
Similarly, he forbade selling ears of corn until they were white and safe from bright,
(Reported by Muslim) saying,
"Tell me why,
if Allah withholds the fruit, any of you should take his brother's property." (Reported by
al-Bukhari and others.)
However, not every sale involving what
is unknown or uncertain is prohibited; for example, a person may buy a house without
knowing the condition of its foundation or what is inside the walls. What is prohibited is
selling something about which there is an obvious element of uncertainty which may lead to
dispute and conflict, or may result in the unjust appropriation of other people's money.
Again, if the risk of uncertainty is small—and this is determined by experience and
custom—the sale is not prohibited. For example, one may sell root vegetables such as
carrots, onions, and radishes while they are still in the ground, or fields of cucumbers,
watermelons and the like. In the opinion of Imam Malik, all such sales of needed items in
which the margin of risk is bearable are permissible. (In Al-qawa'id al-nuraniyyah, p. 118, Ibn Taimiyyah says: "The
principles laid down by (Imam) Malik concerning sales are superior to those of others,
because he took them from Sa'id ibn al-Musayyib, who is the best authority on the fiqh (jurisprudence)
of sales." Imam Ahmad bin Hanbal's opinion is close to that of Malik.)
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In Islam the market is to be
free and permitted to respond to the natural laws of supply and demand. Thus, when the
prices became high in the Prophet's time and people asked him to fix prices for them, he
replied, Allah is the One Who fixes
prices, Who withholds, Who gives lavishly, and Who provides, and I hope that when I meet
Him none of you will have a claim against me for any injustice with regard to blood or
property. (Reported by Ahmad, Abu Daoud,
al-Tirmidhi, Ibn Majah, al-Dari and Abu Y'ala.)
With these words the Prophet of Islam
(peace be on him) declared that unnecessary interference in the freedom of individuals is
injustice and that one should meet Allah free of blame for such a thing. If, however, any
artificial forces, such as hoarding and manipulation of prices by certain merchants,
interfere in the free market, public interest takes precedence over the freedom of such
individuals. In such a situation price control becomes permissible in order to meet the
needs of the society and to protect it from greedy opportunists by thwarting their
schemes, for the above hadith does not mean that price control is prohibited
regardless of the circumstances, even if it removes harm and prevents obvious injustice.
Researchers among scholars have concluded that, depending on the nature of the
circumstances, price control may at times be unjust and prohibited, and at other times may
be just and permissible.
If price control compels people to sell their goods at a price which is
not acceptable to them or denies them the reasonable profit permitted by Allah, it is haram.
If, on the other hand, price control establishes equity among people, for example, by
forcing sellers to accept a price equal to that commanded by other comparable commodities
and restraining them from taking more than this, it is allowed—indeed necessary.
The hadith cited above relates to the first type of situation.
Accordingly, if merchants are selling a commodity in the customary fashion without any
wrong-doing on their part and the price subsequently rises due to the scarcity of the
commodity or due to an increase in population (indicating the operation of the law of
supply and demand), this circumstance is from Allah, in which case to force them to sell
the commodity at a fixed price would be unjust compulsion.
In relation to the second type of situation, should the dealers in a
commodity refuse to sell it, despite the fact that people are in need of it, unless they
secure a price higher than its known value, they must be compelled to sell it at a price
equal to the price of an equivalent commodity. Price control here means nothing more than
establishing comparable prices for equivalent commodities and it is therefore in
conformity with the standard of justice demanded by Allah Ta'ala. (Refer to Risalat al-hisbah by Ibn
Taimiyyah,
as well as to Al-turuq al-hikmiyyah by Ibn al-Qayyim, p. 214 ff.)
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Freedom for individual and
natural competition in the marketplace is guaranteed by Islam. Nevertheless, Islam
severely condemns those who, driven by ambition and greed, accumulate wealth at the
expense of others and become rich by manipulating the prices of food and other
necessities. This is why the Prophet (peace be on him) denounced hoarders in very strong
words, saying, "If anyone
withholds grain for forty days out of the desire for a high price, Allah will renounce
him." (Reported by Ahmad,
al-Hakim, Ibn Abu Shaybah, and al-Bazzar.)
He also said, "If anyone withholds goods until the price rises, he is a
sinner." (Reported by Muslim.)
And the term "sinner" here is not to be tlightly. It is thesame epithet which Allah Ta'ala has applied to some of the great
tyrants in history, for example: ...Assuredly
Pharaoh and Haman and their hosts were sinners.
(28:8)
The Prophet (peace be on him) also said, "The man who hoards goods is evil. If prices fall he is grieved
and if they rise he is happy" (Razi has mentioned this hadith in his Jami'ah.), thereby exposing the selfish and greedy mentality of hoarders.
Again, he said, "He who brings
goods to the market is blessed with bounty, but he who withholds them is cursed." (Reported by Ibn Majah and
al-Hakim.)
There are two ways of making a profit
in a business. One is to withhold the commodity from the market until it becomes scarce
and those who need it are unable to find it; then, compelled by their need, they come to
the hoarder and pay him the price he demands, although it may be unreasonably high. The
other way is to put the commodity on the market, sell it for a reasonable profit, buy more
goods and sell them in like manner, and so on. Since this latter practice serves the
public interest, a merchant who practices it is both blessed by Allah and well-provided
for, as the foregoing hadith states.
A very important hadith concerning hoarding and manipulating prices
has been narrated by M'aqal bin Yassar, a companion of the Prophet (peace be on him). The
Umayyed governor, 'Ubaidullah bin Ziyad, came to visit M'aqal when he was bedridden due to
a grave illness. After inquiring about his condition, 'Ubaidullah asked him, "Do you
know of any instance of my having wrongfully shed someone's blood?" M'aqal replied
that he did not. "Do you know of any instance," 'Ubaidullah continued, "in
which I interfered with the prices of the Muslims' goods?" M'aqal again replied that
he did not know. Then M'aqal asked the people to help him to sit up, which they did. He
then said, "Listen, O 'Ubaidullah, and I will tell you something which I heard from
the Messenger of Allah (peace be on him). I heard the Messenger of Allah (peace be on him)
say, 'Whoever interferes with the
prices of the Muslims' goods in order to raise them deserves that Allah should make him
sit in the Fire on the Day of Resurrection.' "Did you hear this from Allah's
Messenger (peace be on him)?" asked 'Ubaidullah, and M'aqal replied, "More than
once or twice." (Reported by Ahmad and
al-Tabarani.)
On the basis of the text and content of
these foregoing ahadith, scholars have deduced that hoarding is prohibited under
two conditions: one, that hoarding at a given time is injurious to the people of that
country, and two, that the hoarder's aim is to force the price up in order to make more
profit.
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Another practice related to
hoarding which was prohibited by the Prophet (peace be on him) was a townsman's selling on
behalf of a man from the desert. Scholars have explained the situation in the following
manner: a stranger would bring some goods to be sold in town at the current market price.
A townsman would approach him, saying, "Leave them with me for a while. I will sell
them for you when the price is better." Had the non-resident himself sold his goods,
he would have done so for a lower price, thereby benefiting the people, while he himself
would have made a reasonable profit.
This sort of practice was very common in Arab society when Islam came.
Anas says, "Sale by a resident on behalf of a desert-dweller was prohibited to us,
even though he might be a blood brother." (Reported by al-Bukhari and Muslim.)
From this we learn that for the Muslim the public interest takes precedence over personal
relationships. Said the Prophet (peace be on him), A resident (of the town) must not sell for a man from the desert. If
people are left alone, Allah will give them provision from one another. (Reported by Muslim.)
This significant expression of the
Prophet's, "If people are left
alone, Allah will give them provision from one another," establishes a basic principle in the field of commerce: that the market, its
prices, and sales, should be left free to respond to internal economic forces and natural
competition without manipulation. When Ibn 'Abbas was asked about the meaning of "A
resident must not sell for a man from the desert," he replied, "The resident
should not be a broker for him."(Reported
by al-Bukhari.) From this we understand that if someone
were to inform the man from the desert about prices, proffering him good advice and
telling him about prevailing market prices without charging him a commission, there would
be no harm in it, for giving good advice is part of the religion; in fact, a sound hadith
states, "Religion is the
giving of good advice,"
(Reported by Muslim.)
and, "If
someone asks your advice, advise him." (Reported by Ahmad.)
However, with regard to the broker, it is quite
probable that, in a situation such as that described above, he might neglect the public
interest for the sake of his own profit.
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With the exception of such
cases, brokerage is permissible, since it is a sort of mediation and connection between
the buyer and the seller, which in many cases facilitates a profitable transaction for at
least one of them or for both.
In modern times, middlemen have become more necessary than at any time in
the past because of the complexities of trade and commerce, which involve all types of
exports and imports, and wholesale and retail sales and purchases; brokers play a very
important role in keeping things moving. There is nothing wrong, therefore, with the
broker's charging a commission for his services. The commission may be a fixed amount or
proportional to the volume of sales, or whatever is agreed upon among the parties
involved. Al-Bukhari states in his Sahih. Ibn Sirin, 'Ata, Ibrahim, and Hassan saw nothing wrong with commissions
charged by brokers. Ibn 'Abbas said, 'There is no harm if one person says to another,
"Sell this robe, and if you sell it for more than such and such a price, you may keep
the extra amount."' Ibn Sirin said, 'There is nothing wrong if one person says to
another, "Sell it for this price and keep the profit, or the profit will be shared
between you and me."' The Prophet (peace be on him) said, 'The Muslims must abide by
their terms.' (This hadith is reported by
al-Bukhari with the chain of
transmitters which does not reach back to the Prophet (peace be on him); however, Ahmad,
Abu Daoud, al-Hakim, and others have a complete chain of transmitters)
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In order to prevent the
manipulation of the market, the Prophet (peace be on him) also prohibited what is termed najash.
(Reported by al-Bukhari and
Muslim.) Ibn 'Umar explained that najash signifies
someone's bidding for an item in excess of its price without having any intention of
actually buying it, but merely in order to induce others to bid still higher. Many times
this is pre-arranged for the purpose of deceiving others.
Among the variety of measures which the Prophet (peace be on him) took to
keep business transactions as far removed as possible from all kinds of exploitation and
fraud was that of prohibiting people from going out of town to buy merchandise which was
on its way to the market, telling them to wait until it was brought to the marketplace.
(Reported by Muslim, Ahmad, and Ibn Majah.) The reason for this prohibition is that the market place, where the
forces of demand and supply determine prices, is the best place for trading transactions.
If someone goes out of town to buy from a trader who is bringing merchandise, there is a
possibility that the seller, not knowing the current price of his merchandise, may be
defrauded. If anyone does buy some of his merchandise in this manner, the seller has the
option of canceling the transaction after arriving at the marketplace. (Reported by Muslim.)
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Islam prohibits every type of
fraud and deception, whether it be in buying and selling or in any other matter between
people. In all situations the Muslim must be honest and truthful, holding his faith dearer
than any worldly gain. The Prophet (peace be on him) said, Both parties to a butransaction have a right to cancel it as
as they have not separated. If they tell the truth and make everything clear, they will be
blessed in their transaction, but if they lie and conceal anything, the blessing will be
blotted out. (Reported by al-Bukhari.)
He also said, It is not permissible to sell an article without making everything
(about it) clear, nor is it permissible for anyone who knows (about its defects) to
refrain from mentioning them.
(Reported by al-Hakim and al-Bayhaqi.)
Once, when passing by a grain merchant,
the Prophet's curiosity was aroused. He thrust his hand into the heap of grain and found
it wet. "What is this, O merchant?" he asked. "It is because of rain,"
the man replied. The Prophet (peace be on him) then said to him, "Why did you not put it on top so that the people could
see it? He who deceives us is not of us." (Reported by Muslim.)
In another report it is said that he
passed by a heap of grain which was made to look good by the merchant. The Prophet (peace
be on him) put his hand into it and found it to be bad. He told the merchant,
"Sell the good and the bad separately. He
who deceives us is not of us."
(Reported by Ahmad.)
The Muslims of earlier times strictly
observed the practices of exposing the defects of what they sold, of telling the truth,
and of giving good advice. When Ibn Sirin sold a sheep, he told the buyer, "I would
like to tell you about a defect it has: it kicks the fodder." And when
al-Hassan bin
Salih sold a slave girl he told the buyer, "Once she spat up blood." Although
she had done this only once al-Hassan's Muslim conscience required that he mention the
fact, even if it resulted in his receiving a lower price.
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The sin of deceiving is the
greater when the seller supports it by swearing (This means swearing that something is true in the name of Allah.
(Trans.)) falsely. The Prophet (peace be on him) told
the merchants to avoid swearing in general and, in particular, in support of a lie,
saying, "Swearing produces a
ready sale but blots out the blessing." (Reported by al-Bukhari.)
He disapproved of frequent swearing in business
transactions because first, it is probably done to deceive people, and second, because it
reduces respect for the name of Allah.
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One way of defrauding the
customer is to measure or weigh incorrectly. The Qur'an emphasized this aspect of business
transactions and included it among the ten obligations described in the last part of Surah
al-An'am: ...And give full
measure and (full) weight, in justice; We do not burden any soul beyond what it can
bear.... (6:152)
And elsewhere in the Qur'an Allah Ta'ala says, And give full measure when you measure and weigh with the straight
balance; that is most fitting and best in the final determination. (17:35)
He also says, Woe to the
defrauders—those who, when they take the measure from people take it in full, but
when they measure for them or weigh for them give them short. Do they not realize that
they will be raised up again on a mighty Day, a Day when mankind will stand before the
Lord of the worlds? (83:1-6)
The Muslim should try to do justice in measuring and weighing as far as it is humanly
possible, although absolute accuracy in this regard is unattainable. This is why,
following the command to give full measure, the Qur'an adds, "We do not burden any
soul beyond what it can bear."
A story is narrated in the Qur'an concerning a people who were dishonest
in their business dealings, deviating from justice in weighing and measuring, and being
miserly with each other. Allah Subhanahu wa Ta'ala sent a messenger to bring them back to
justice and honesty, as well as to the belief in His Unity. These were the people of the
prophet Shu'aib (peace be on him), who as a warner and preacher, called on them to
Give full measure, and do not be of those who
give less (than what is due). And weigh with the straight balance, and do not diminish
people's goods nor do evil on the earth, making mischief. (26:181-183)
What is correct in relation to weighing and measuring is correct in
relation to all other human affairs and relationships. The Muslim is not permitted to have
two standards, one for himself and one for other people, this for the near and dear and
that for the public, demanding in full his rights and the rights of those who support him,
but when it concerns others, diminishing or depriving them of their rights.
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In order to combat crime and to
confine the criminal within a very narrow sphere of activity, Islam has prohibited the
Muslim to buy any article which he knows to have been usurped, stolen, or taken unjustly
from its owner; anyone who does so abets the usurper, the thief, or the one committing
injustice in his respective crime. Said the Prophet (peace be on him), He who buys the stolen property, with the
knowledge that it was stolen, shares in the sin and shame of stealing.
(Reported by al-Bayhaqi.)
The passage of time does not render a
piece of stolen or misappropriated property lawful, for in Islam the mere passage of time
does not transform the haram into the halal nor does it deprive the original
owner of his right to it.
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Islam permits increase in
capital through trade. Allah Subhanahu wa Ta'ala says, O you who believe, do not consume your property among yourselves
wrongfully, but let there be trade by mutual consent.... (4:29)
At the same time, Islam blocks the way for anyone who tries to increase
his capital through lending on usury or interest (riba), whether it is at a low or
a high rate, reprimanding the Jews for taking usury, even though they had been prohibited
to do so. Among the last revelations are the following verses of Surah al-Baqarah: O you who believe, fear Allah and give up what
remains due to you of interest if you are indeed Believers. And if you do not, then be
warned of war (against you) by Allah and His Messenger, while if you repent you shall have
your capital. Do not do wrong and you shall not be wronged. (2:278-279)
The Prophet (peace be on him) declared war on usury and those who deal in
it; he pointed out its dangers to society, saying, When usury and fornication appear in a community, the people of that
community render themselves deserving of the punishment of Allah.
(Reported by al-Hakim; Abu Y'ala has reported something similar on good authority.)
Among the revealed religions (According to the Qur'an there has been only one
true, authentic faith, Al-Islam. Islam means the attainment of peace through conscientious
and loving submission to the Will and Guidance of Allah. This was the mission of all
Prophets and Messengers in human history. It is the same fundamental faith which was
revealed to Moses, Jesus, and Muhammad (peace be upon them). The original revelations
given to Moses and Jesus are no longer available in their complete, original and
unadulterated form. The Qur'an is the only divine revelation which was meticulously
preserved in it's complete, original, and unadulterated form. As such, it is to be used as
the criterion to judge the authenticity of the present forms of previous revelations.), Judaism, prior to Islam, had also prohibited interest. In the Old
Testament we read, If you lend money to any of My people with you who is poor, you shall
not be to him as a creditor, neither shall you require interest from him. (Ex. 22:25)
As for Christianity, the Gospel according to Luke reads, Give away to every one who begs
of you, and of him who takes away from your goods, do not demand them back again. (Luke
6:30)
It is, therefore, sad to see that the Old Testament has been subjected to such distortions
that the meaning of "My people," which originally had a broader application,
later became restricted to the Jews alone, as we read in Deuteronomy, You may lend on
interest to a foreigner, but to your brother you shall not lend on inters". (Deut.
23:20)
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The strict prohibition of
interest in Islam is a result of its deep concern for the moral, social, and economic
welfare of mankind. Islamic scholars have sound arguments explaining the wisdom of this
prohibition, and recenstudies have confirmed their opinions, with some additions and
extensions of their arguments.
We confine ourselves to what Imam al-Razi says in his Tafsir of the
Qur'an:
First: The taking of interest implies
appropriating another person's property without giving him anything in exchange, because
one who lends one dirham for two dirhams gets the extra dirham for
nothing. Now, a man's property is for (the purpose of) fulfilling his needs and it has
great sanctity, according to the hadith, 'A man's property is as sacred as his blood'
(Transmitted by
Abu Na'eem in Al-hilbah.) This means that taking
it from him without giving him something in exchange is haram.
Second: Dependence on interest prevents
people from working to earn money, since the person with dirhams can earn an extra dirham
through interest, either in advance or at a later date, without working for it. The
value of work will consequently be reduced in his estimation, and he will not bother to
take the trouble of running a business or risking his money in trade or industry. This
will lead to depriving people of benefits, and the business of the world cannot go on
without industries, trade and commerce, building and construction, all of which need
capital at risk. (This, from an economic point of view, is unquestionably a weighty
argument.)
Third: Permitting the taking of
interest discourages people from doing good to one another, as is required by Islam. If
interest is prohibited in a society, people will lend to each other with good will,
expecting back no more than what they have loaned, while if interest is made permissible
the needy person will be required to pay back more on loans (than he has borrowed),
weakening his feelings of good will and friendliness toward the lender. (This is the moral
aspect of the prohibition of interest.)
Fourth: The lender is very likely to
be wealthy and the borrower poor. If interest is allowed, the rich will exploit the poor,
and this is against the spirit of mercy and charity. (This is the social aspect of the
prohibition of interest.) (Tafsir by
al-Fakhr al-Deen al-Razi, vol. 7, p. 4.)
Thus, in a society in which interest is
lawful, the strong benefit from the suffering of the weak. As a result, the rich become
richer and the poor poorer, creating socio-economic classes in the society separated by
wide gulfs. Naturally this generates envy and hatred among the poor toward the rich, and
contempt and callousness among the rich toward the poor. Conflicts arise, the
socio-economic fabric is rent, revolutions are born, and social order is threatened.
Recent history amply illustrates the dangers to the peace and stability of nations
inherent in interest-based economies.
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Unquestionably the money-lender
who takes interest, getting more from the borrower than his capital, is accursed in the
sight of Allah and the people. But Islam, with its characteristic method of dealing with
the haram, does not confine the sin to the lender on interest alone; it considers
the borrower who pays him interest, the writer of the promissory note, and the witness to
it to be among his accomplices. A hadith says: Allah has cursed the one who takes interest, the one who pays it, the
one who writes the contract, and the one who witnesses the contract.
(Reported by
Ahmad, Abu Daoud, al-Nisai, Ibn Majah, and al-Tirmidhi, who calls it sound.)
However, if a person is driven to
borrowing money on interest due to some pressing need, the sin will be on the lender
alone. Now, to establish such a pressing need certain conditions must be met:
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The need must be real, not merely an
extension of the scope of one's needs and the desire for luxury. It
must be so basic that life is not possible without it, for example,
food, clothing, and medical treatment.
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This concession is limited to the exact
amount needed. Thus, for example, if nine dollars is sufficient,
borrowing ten dollars is not lawful.
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The borrower must continue to search
for ways to escape from his predicament, and his brother Muslims
should help him in this. If no other means are found, he can resort to
borrowing on interest with no intention of liking it or transgressing
the limits, and hope for forgiveness from Allah, as indeed He is
Forgiving and Merciful.
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He must continue to hate it and regret
doing it until Allah opens a way out for him.
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The Muslim must be aware that
his religion commands him to be moderate in his living habits and thrifty in his financial
affairs ...And do not be
extravagant; indeed, He does not like those who are extravagant. (6:141)
...And
do not squander your wealth wantonly; truly, those who squander are the brothers of the
evil ones. (17:26-27)
When the Qur'an asked Muslims to spend in the way of Allah, it did not ask
them to spend all but merely a part of their wealth. If a person spends only a part of
what he earns, it is not likely that he will become destitute; thus, with moderation in
his living habits and control of his spending, the Muslim will not be compelled to borrow
The Prophet (peace be on him) disliked the Muslim's being in debt because debt is a worry
by night and a humiliation by day. He always asked Allah's protection from indebtedness,
saying, "O Allah, I seek refuge
in Thee from the burden of debt and from the anger of men." (Reported by Abu
Daoud.)
He also said, 'I seek refuge in Thee from unbelief and debt.' A man asked him, 'Do
you equate debt with unbelief?' He replied, 'Yes.' (Reported by al-Nisai and al-Hakim.)
In his prayers he would frequently say, 'O Allah, I seek refuge in Thee from sin and
debt.' He was asked, 'Why do you so often seek the protection of Allah from debt?' He
replied, 'One who is in debt tells lies and breaks promises.' (Reported by al-Bukhari.)
From these statements it becomes clear that borrowing
can endanger one's morals.
The Prophet (peace be on him) would not pray the funeral prayer for a
person who had died in a state of indebtedness, not leaving behind enough property to
repay his loans; he did this in order to discourage others from such an end. In later
years, when Allah had enriched him from the spoils of war, he paid the debts of such
persons and led their funeral prayers. (This
is from what is narrated by Jabir and Abu Hurairah.)
He said, "Everything will be forgiven to the shaheed (martyr
in the cause of Allah) except debt." (Reported by Muslim.)
The Muslim who is informed of these ahadith
will never resort to borrowing except in the case of dire need, and if he does borrow
will always remain mindful of the obligation of repayment. A hadith states,
If a man borrows from people with the intention
of repaying them, Allah will help him to repay, while if he borrows without intending to
repay them, Allah will bring him to ruin. (Reported by al-Bukhari.)
Accordingly, if a Muslim is not to resort to the kind
of borrowing which is halal (that is, without interest) without a compelling need,
what can we say concerning his borrowing money on interest?
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While it is best to buy an
article by paying cash, it is also permissible to buy on credit by mutual consent. The
Prophet (peace be on him) bought some grain from a Jew, to be paid for at specific time,
pledging his coat of mail as security.
(Reported by al-Bukhari.)
A group of jurists are of the opinion
that, should the seller increase his price if the buyer asks for deferred payments, as is
common in installment buying, the price differential due to the time delay resembles
interest, which is likewise a price for time; accordingly, they declare such sales to be haram.
However, the majority of scholars permit it because the basic principle is the
permissibility of things, and no clear text exists prohibiting such a transaction.
Furthermore, there is, on the whole, no resemblance to interest in such a transaction,
since the seller is free to increase the price as he deems proper, as long as it is not to
the extent of blatant exploitation or clear injustic, in which case it is haram. Al-Shawkani
says, "On the basic of legal reasons, the followers of Shafi'i and Hanafi schools,
Zaid bin 'Ali, al-Muayyid Billah, and the majority of scholars consider it lawful."
(Nayl al-awtar, vol. 5, p. 153. Al-Shawkani said,
"We have compiled a treatise on this subject and have called it 'Shifa al'ilal fi
hukum ziyadat al-thamam li mujarrad al-ajal' (The Reason for Increasing the Price Due to
Lapse of Time), and have researched it thoroughly.")
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The Muslim is allowed to make
an advance payment of a specified price for a specified quantity of merchandise to be
delivered at a fixed time in the future. This type of transaction was prevalent in Madinah
when the Prophet (peace be on him) arrived, and he introduced certain changes and
conditions in this type of transaction in order to bring it into conformity with the
Islamic Shari' ah. Ibn Abbas narrated, "When Allah's Messenger (peace be on
him) came to Madinah, they were paying one and two years in advance for fruits, but he
then said, Those who pay for
anything in advance must do so for a specified measure and weight, with the fixing of a
specified time. (Reported by al-Bukhari, Muslim and others.)
This limitation of specifying the
measure or weight and time removes uncertainty and misunderstanding. Similar to this was
the practi4 of paying in advance for the fruit of a certain number of palm trees, which
the Prophet (peace be on him) prohibited because of the possibility of unforeseen losses
due to blight. The proper form of advance trade is therefore to specify the measure of
weight, rather than selling the fruits of a certain number of trees or the crop of a
certain acreage of sown field. However, such a transaction is haram if the owner of
the trees or the farm land is clearly being exploited because he needs money.
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It may be said that Allah
Subhanahu wa Ta'ala has distributed talents and wealth among human beings according to a
wise plan of apportionment. We find many a talented and experienced individual who does
not possess much wealth or none at all, while others have a great deal of money but little
or no talent. Why, therefore, should not the wealthy person turn over to the one
possessing talents some of his wealth to invest in a profitable business, so that the two
may benefit from one another and share the profits according to some agreed-upon formula?
In particular, business ventures on a large scale require the cooperation of many
investors. Among the populace we find a large number of people who have savings and excess
capital but who lack time or the capability of investing it. Why should not this money be
pooled and placed under the management of capable people who will invest it in
significant, large-scale projects?
We maintain that the Islamic Shari'ah did not prohibit cooperation
between capital and management, or between capital and labor as these terms are understood
in their Islamic legal sense. In fact, the Shari'ah established a firm and
equitable basis for such cooperation: if the owner of capital wishes to become a partner
with the working man, he must agree to share all the consequences of this partnership. The
Shari'ah lays down the condition that in such a partnership, which is called al-mudaribah
or al-qirad, the two parties should agree that they will share the profit if
there is profit and loss if there is loss in a proportion agreed upon in advance. This
proportion can be one-half, one-third, one-fourth, or any other proportion for one party
and the remainder for the other party. Thus the partnership between capital and labor is
that of two parties with joint responsibility, each having his share, whether of profit or
loss, and whether much or little. If, in the balance, the losses exceed the profits, the
difference is to be charged against the capital. This arrangement is not surprising, for
while the owner of the capital has suffered a loss in his wealth, the working partner has
lost his time and effort.
This is the law of Islam concerning partnership contracts. Conversely,
were the owner of the capital to be guaranteed a fixed profit on his capital regardless of
the magnitude of the profit or loss, it would be a clear violation of justice and a bias
in favor of capital against investment experience and labor; it would also be contrary to
the realities of investment, which always contain elements of risk. To guarantee to the
person who did not toil or take any risk is the very essence of abominable usury.
The Prophet (peace be on him) forbade the type of partnership on
cultivable land which was known as al-muzara'ah (share-cropping) (Reported by Muslim.), in which the contract would give one partner the produce of a specified area of
a farm or a fixed amount of grain such as one or two tons. He prohibited this because such
a transaction is similar to usury or gambling; for if the farm produced less than the
specific amount or nothing at all, one partner would still get his share, while the other
would suffer a total loss, which is contrary to justice.
The explicit hadith invalidating share-cropping because of this
condition is, in my opinion, the basis of consensus among jurists that no partnership is
valid which specifies a fixed profit for one partner in every case, regardless of whether
or not the investment was profitable. They say, "Suppose one of the partners makes a
condition that he is to receive a specified amount of money. In case the profit does not
exceed that amount, he would receive the entire profit, and even if there is no profit, he
would receive that much; on the other hand, if the profit is large he will be hurt by the
condition of getting only the specified amount. " (In his treatise, Al-Islam wa mushkilatina al-mu'asirah (Islam and
Contemporary Problems), Dr. Muhammad Yusuf Musa quotes Sheikh Muhammad 'Abduh and
Sheikh Abdul Wahhab as disagreeing with the jurists concerning partnership contracts. They
argue that this has no basis in the Qur'an and the Sunnah. With due respect to
their opinions, I maintain that the analogy to share-cropping is sufficient to apply it to
other partnerships. But Allah knows best.) This
reasoning is in accordance with the spirit of Islam, which bases all human affairs on
clearly defined principles of justice and fairness.
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Just as it is lawful for the
Muslim to use his own wealth for any permissible purpose or to give it to a capable,
experienced person to invest in a joint venture, it is also lawful for him to pool his
capital with the capital of others for investment, trade, or any lawful business ventures.
There are all kinds of activities and projects, some requiring intensive
labor, others intensive mental expenditure, and still others large capital. By themselves
individuals may not be able to accomplish much, but when joined with others, they can
achieve many things. Allah Ta'ala says, ...and
help each other in righteousness and God-consciousness. (5:3 (2))
Any deed which produces good results for the individual or society, or which removes some
evil, is righteousness, and a righteous deed becomes piety if a good intention is added to
it. Islam is not content with merely allowing such joint endeavors but encourages and
blesses them, promising Allah's help in this world and His reward in the Hereafter as long
as these endeavors are within the sphere of what Allah has made halal, far removed
from usury (interest) and from ambiguity, injustice, fraud, and cheating in any form. In
this connection the Messenger of Allah (peace be on him) said, Allah's hand is over two partners as long as one of them does
not cheat the other, but when he cheats his partner, He withdraws it from both.
(Reported by
al-Darqutni.)
"Allah's hand" refers to His help, inspiration, and blessing. The Prophet (peace
be on him) also stated in a hadith quasi that Allah, the Great and Glorious says,
I make a third with two partners as long as one
of them does not cheat the other, but when he cheats him I depart from them. (Reported by Abu Daoud and by al-Hakim, who calls
it sound.)
Razin's versadds, "and Satan comes."
(Reported by Razi in his Jami'ah.)
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We now turn to the important
relating to present-day companies which issue life insurance and insurance against hazards
and accidents. What is the Islamic position and ruling concerning such companies?
Before answering this question we must first inquire into the nature of
such companies and the nature of the relationship between the insured and the insurance
firm; in other words, is the insured individual a partner of the firm's owners? If this is
the case, every individual insured by the firm should have a share in its profits or
losses since this is the meaning of a partnership in Islam.
With regard to insurance against hazards, the insured pays a specified
premium during the year. If no accident of the type specified in the insurance policy
occurs to the property (shop, factory, ship, etc.) during the year, the company keeps the
premiums received and nothing is returned to the insured. If, on the other hand, some
calamity occurs, the insured individual is paid the agreed-upon sum. This kind of
transaction is far removed from either trade or partnership.
In relation to life insurance, supposing a person takes out insurance for
twenty thousand dollars and dies soon after paying the first premium, his beneficiaries
are then entitled to the entire sum of twenty thousand dollars. Had this been a business
partnership, they would have been entitled only to the amount of the premium which was
paid, plus the profit on it. Again, if the insured person fails to pay his premiums after
having paid a few of them, according to the terms of insurance contracts he will lose all
or a great part of what he has already paid. The least one can say about this is that it
is, in the context of the Islamic legal system, an invalid condition.
The argument that the two parties, the insured and the insurance firm,
enter into this contract willingly in accordance with their respective self-interest
carries no weight; so do the lender and the borrower on interest and two gamblers. The
mutual agreement of the two parties has no validity in a transaction which is not based on
justice and equity, and which is not devoid of any trace of ambiguity or exploitation.
Moreover, since justice, with no harm either to oneself or others, is the ultimate
criterion here, a transaction is invalid if it stipulates that in certain situations one
party is to take all, with no benefits guaranteed to the other.
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It is clear to us that the relationship between the insured and the insurer does
not constitute a partnership. The question then is, What is the nature of this
relationship? Is it a relationship of cooperation? Are insurance firms to be regarded as
cooperatives which are organized by their members to help one another, each member paying
a certain amount as his share?
In order to establish a cooperative system on a sound footing in any group
which desires to help its members in the event of unforeseen calamity, the following
conditions must be met in regard to the money collected:
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Every member who pays his allotted share
of money pays it as a donation, in the spirit of brotherhood. From this pool of donations
help is given to those who are in need.
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If any part of this money is to be
invested, it should be invested in halal businesses only.
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It is not permitted to the member to
donate his share on the condition that he will receive a pre-determined amount in the
event of an unforeseen calamity. Rather, he will be paid an amount which will compensate
his loss or a part of it, depending on the resources of the group, from the pooled monies.
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What has been donated is gift from the
donor, and taking it back is haram.(Taken from the book, Al-Islam wal-manahij al-ishtirakiyyah (Islam and
Socialism), by Muhammad al-Ghazzali, p. 131.)
Apart from some of the Muslim
cooperatives and associations in which the individual pays a certain sum monthly as a
donation without any right to take it back and with no condition that he will receive a
pre-determined amount in case of an unforeseen calamity, these conditions are not met. As
far as insurance companies— especially life insurance—are concerned, they do not
satisfy these conditions in any respect because:
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The insured individuals do not pay the
premium as donations; such a thought never occurs to them.
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Insurance firms invest their monies in
businesses which operate or lend their money on interest. All this is haram and the
Muslim is prohibited to participate in such activities; the strictest and most permissive
jurists alike all agree on this point.
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In the event that the insured survives the
term of the contract, he gets back all the premiums he paid plus some additional sum,
which is nothing but interest.
Furthermore, insurance is contrary to the whole concept of cooperation
among people. While the principle of cooperation requires that the poor and needy be paid
more than the rich, the rich, who can afford higher premiums, get back much more in the
event of death or an accident than the poor. (In the 6th (1972) edition of the present volume, Dr.
al-Qaradawi has
cited three additional references about insurance published in the '40's and '50's.
(Trans.))
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In my view insurance against hazards can be modified in a manner which would
bring it closer to the Islamic principle by means of a contract of "donation with a
condition of compensation." The insured would donate his payments to the company with
the stipulation that the company would compensate him, in the event that he is struck by
calamity, with an amount which would assist him and reduce the burden of his loss. Such a
type of transaction is allowed in some Islamic schools of jurisprudence. If such a
modification is effected, and if the company is free of usurious business, one may declare
insurance against hazards to be a lawful contract. However, as far as life insurance is
concerned, I see it as being very remote from Islamic business transactions.
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Our observation that the modern form of insurance companies and their current
practices are objectionable Islamically does not mean that Islam is against the concept of
insurance itself; not in the least—it only opposes the means and methods. If other
insurance practices are employed which do not conflict with Islamic forms of business
transactions, Islam will welcome them.
In any case, the Islamic system has already insured the Muslims and others
living under its governance in its characteristic fashion, the characteristic which
permeates all its teachings and legislation. This provision is accomplished either through
mutual help among individuals or through the government and its treasury, for the
treasury, known as the bait al-mar, is the universal insurance company for all who
reside within the Islamic domain.
In the Islamic Shari'ah we find insurance for individuals against
hazards and provision for assisting them to overcome disasters which may befall them.
Earlier we mentioned that a person who' is rendered destitute due to a calamity is
permitted to ask for financial help, particularly from the administrative authorities,
until he is fully compensated or is able to stand on his own feet again. (See the hadith from Qubaisah on pp. 127 of
this book in the section on "Work; and Earning a Livelihood.")
We also find the concept of insurance
for the heirs of a deceased person in the Prophet's saying, I am nearer to each Muslim than his very self. If he leaves
behind some property it is for his heirs, and if he leaves behind a debt or a family with
young children, he leaves them to me and they are my responsibility (Reported by al-Bukhari and Muslim.), meaning that they are the responsibility of the Islamic
government.
The greatest form of insurance which Islam has legislated for its
followers among those deserving to receive zakat funds relates' to the category of gharimeen
(those in debt). Some of the early interpreters of the word gharim say,
"It denotes one whose house has burned down or whose property otrade has been
destroyed by flood or other disasters." Some jurists hold that such a person may be
given, from the zakat fund, an amount whicwould restore his previous financial
position, even though the amount may reach thousands of dollars.
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If the Muslim owns a piece of
cultivable land, he must make use of it by planting crops or trees. It is not consonant
with Islam that such lands not be used for cultivation, as this is tantamount to rejecting
the bounty of Allah and wasting wealth, which the Prophet (peace be on him) prohibited.
In this regard a number of options are available to the land owner:
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The first option available to the landowner is
that he himself cultivate the land. This is commendable, and the owner will be rewarded by
Allah for whatever men, beasts, and birds eat of the produce of his farm or garden. As we
mentioned earlier, the Ansar among the Companions of the Prophet (may Allah be
pleased with them) were farmers.
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If the land owner is unable to cultivate the
land himself, he may lend it to another person who is able to cultivate it by employing
the latter's own equipment, helpers, seeds, and animals. In such a case the land owner is
very desirable in Islam. Abu Hurairah narrated that the Prophet (peace be on him) said,
"If anyone has land, he should cultivate it
or lend it to his brother.'' (Reported by
al-Bukhari and Muslim)
Said Jabir, "In the time of the Prophet (peace be
on him) we used to do planting on a piece of land and in return would get what remained in
the ears after they were threshed. In this way, as the Prophet (peace be on him) said,
If anyone has land, he should cultivate it or
lend it to his brother for cultivation, or otherwise release it from his ownership. (Reported by Ahmad and Muslim. "Lending it to
his brother for cultivation" means without receiving anything in return for it.)
Some early scholars, going by the apparent meaning of
this hadith, held the opinion that cultivable land can be used in one of two ways:
either the owner cultivates it himself or he lends it to someone else for cultivation,
with no return for himself In the latter case, the piece of land remains the property of
the owner but the produce belongs to the one who cultivates it.
In the opinion of Ibn 'Abbas, the Prophet's order to lend the cultivable land to others if
one does not farm it himself was not intended as command which must be obeyed but only as
the recommendation of a laudable act. Al-Bukhari reported that 'Amr bin Dinar said,
"I said to Taous (one of the closest companions of Ibn 'Abbas), 'I wish you would
leave off share-cropping since people claim that the Prophet (peace be on him) prohibited
it.' Taous replied, 'The most knowledgeable among them (that is, Ibn 'Abbas) informed me
that the Prophet (peace be on him) did not prohibit it but said, "Lending it free to Your brother is better than asking a
fixed sum from him.'' (Reported by al-Bukhari.)
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The third alternative for the landowner
is to let out his land to a person who will cultivate it, using the cultivator's own
equipment, seeds, and animals on the condition that he is to get a specified percentage,
such as half, a third, or whatever is agreed upon, of the total produce of the land; the
owner may also make available to the cultivator his own seeds, equipment, animals, or
other help. Such an arrangement is termed share-cropping.
Al-Bukhari and Muslim report on the authority of Ibn 'Umar, Ibn 'Abbas and Jabir bin
'Abdullah that the Prophet (peace be on him) gave the people of Khayber the land to work
and cultivate, in return for which they were to get half of what it produced.
In support of their position, scholars who consider share-cropping permissible say, It is
established and well-known that the Prophet (peace be on him) practiced it until his death
and that after him the rightly guided Caliphs practiced it until their deaths, as likewise
those who came after them. The wives of the prophet (may Allah be pleased with them)
continued this practice after the death of the Prophet himself (peace be on him) until the
last one of them had died, and so on. This practice cannot be considered to be abrogated
because an abrogation is valid only if it was implemented by the Prophet himself (peace be
on him)during his own lifetime. Now, if he practiced a thing until his death, and
thereafter his successors and all the Companions (may Allah be pleased with them) acted on
it and none of them opposed it, how then is anyone else entitled to invalidate it? And if
it was (actually) abrogated during the lifetime of the Prophet (peace be on him), why then
did he continue to practice it after abrogating it? And how was it possible that his
closest Companions and successors should remain ignorant of its abrogation while the story
of Khayber was circulating widely and they were (themselves) acting according to it? And
where was the narrator of (the report on this abrogation, that none of them knew him or
had heard about him? (AI-mughni by
Ibn Qudadmah, vol. 5, p. 384.)
The Prophet (peace be on him) prohibited his Companions to practice another form
of share-cropping which was quite common at that time. The land owner would give out his
land conditional to his getting the produce of one part of it and the cultivator the
produce of the remaining part or perhaps half, or to the owner's getting a specified
weight or measure of the grain produced and the cultivator the rest. But sometimes one
part of the land produced a crop while the other did not, so that one of the two would
receive nothing or very little, while the other took everything. Similarly, if the total
produce did not exceed the specified weight or measure, the owner would get everything
while the cultivator would get nothing.
Such a transaction clearly involves great uncertainty and risk, and is
contrary to the spirit of justice. The Prophet (peace be on him) saw that justice demands
that both should share the total produce, whether this total is much or little, according
to the agreed-upon ratio. Proportions of the total produce must be specified so that if
the crop is bountiful, it is bountiful for both; if it is meager it is meager for both,
and if nothing is produced, neither of them receives anything. This is the fair
distribution for both parties.
Al-Bukhari reported that Rafi' bin Khadij said, "We had the most
agricultural land in Madinah, and one of us would rent out his land, designating a part of
it for himself. Sometimes a calamity would hit that part while the rest of the land was
safe, and sometimes the other way around. Consequently, the Prophet (peace be on him)
prohibited us from doing so."
Muslim reported Rafi' bin Khadij as saying, "People used to let out
land in the time of the Prophet (peace be on him) in exchange for what they grew by the
streamlets or at the borders of the fields, or for a fixed quantity of produce. Sometimes
it would happen that the part so set aside was destroyed while the other was safe and
sometimes the opposite, and the people had no investments other than this. Hence the
Prophet (peace be on him) forbade this practice.
Again, Al-Bukhari reported from Rafi' bin Khadij that the Prophet (peace
be on him) asked, "What do you do with your agricultural lands?" The people
replied, "We let them out for (the produce on the quarter of their area or for a
measure of barley or dates." He said "Do not do that." What is meant here
is that the land owner would take this fixed quantity as "overhead" and would
also share in some proportion of the remainder, for example, the entire produce of the
specified one-fourth of the area, plus one-half of the produce of the remaining
three-fourths of the area.
We observe from this that the Prophet (peace be on him) was eager to
establish perfect justice in his society and to remove every source of conflict and
discord from the community of Believers. Zaid bin Thabit narrated that two people came to
the Prophet (peace be on him) disputing about some la, and he said, "If this is what happens among you, then do
not let out your farms." (Reported by Abu
Daoud.)
The landowner and the cultivator must
therefore be mand generous to one another; the landowner should not demand too high a
share of the yield and the worker should take proper care of the land. Ibn 'Abbas said
that the Prophet (peace be on him) did not prohibit share-cropping but advised the owner
and the cultivator to be considerate of each other. (Reported by al-Tirmidhi, who calls it sound.) And when someone said to
Taous, "O Abu 'Abdur Rahman, why do you not give up
share-cropping, since they claim that the Prophet (peace be on him) forbade it?" he
replied, "I help them (the cultivators) and provide for them." (Reported by Ibn Majah.) His concern was not simply that he should earn something from his land regardless
of whether those who were employed on it got something or suffered hunger; rather, he
helped them and took care of them. That was the true Muslim society.
There may be a landowner who prefers to keep his land idle, not planting
any crops or fruit trees on it, rather than renting it to a farmer for a small proportion
of the yield, since he may consider the return too little. With this in mind, the caliph
'Umar bin 'Abdul-Aziz issued a decree to all concerned saying, "Let out your land for
one-third, one-fourth, one-fifth and up to one-tenth of the yield, but do not leave the
land uncultivated."
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The fourth option available to the
Muslim landowner is to lease the land to the cultivator for a fixed amount of money, gold,
or silver. Some well-known jurists have declared this to be permissible, while others
consider it haram on the basis of sound ahadith of the Prophet (peace be on
him) which prohibit renting out land for money. Among the narrators of these ahadith are
two Companions who participated in the Battle of Badr, as well as Raf'i bin
Khadij, Jabir,
Abu Sa'id, Abu Hurairah, and Ibn 'Umar; all of them report that the Prophet (peace be on
him) absolutely prohibited the renting of agricultural land for money. (See Al-muhallah, vol. 8, p. 212.)
Exempted from this prohibition is
share-cropping for a specified proportion of the total yield, as is demonstrated by the
Prophet's transaction with the people of Khayber. He turned land over to them to cultivate
for one-half the total yield and continued to do this until his death; after his death,
the rightly guided Caliphs continued to practice share-cropping on a proportionate basis.
The student of the legislative development of this problem comes across a
clear exposition by Ibn Hazm, who stated: When the Prophet (peace be on him) arrived (in
Madinah), the people used to lease their farms, as is reported by Raf'i and others. This
practice had undoubtedly been common among them before the time of the Prophet (peace be
on him), and it continued after he became the Messenger; it is not permissible for any
sane person to doubt this fact. Then, as is authentically transmitted by
Jabir, Abu Hurairah, Abu Sa'id, Zahir al-Badri, and Ibn 'Umar, the Prophet (peace be on him) totally
prohibited the leasing of land, thus nullifying this practice; this is certainly correct
and there is no doubt concerning the matter. He who asserts that what was nullified (i.e.,
the leasing of land) has been restored and that the certainty of nullification is not
established is a liar and denies the veracity of others saying what he does not know.
According to the Qur'an, making such an assertion is haram unless one brings proof
for it. And he can never find a proof for it except in the instance in which the land is
let for a given proportion (such as one third or one-fourth) of the total yield, as it is
authentically reported that the Prophet (peace be on him) did this with the people of
Khayber after prohibiting it for several years, and he continued to give them land on a
share-cropping basis until his death. (AI-muhallah,
vol. 8, p. 224.)
A group of early jurists hold the same
opinion. Taous, the jurist of Yemen and one of the greatest of the second generation
Muslim scholars, disliked renting land for silver or gold but saw no harm in renting it
for one-third or one-fourth of the yield. When someone disputed with him, saying that the
Prophet (peace be on him) had prohibited this, he replied, "Mu'ad bin
Jabal, the
governor of Yemen appointed by the Prophet (peace be on him), arrived here and gave out
the land for one-third or one-fourth (of its yield), and we continue this practice to this
day." Thus, in his opinion, renting land for gold or silver was disapproved but
share-cropping was permissible.
Correct reasoning by analogy (qiyas) based on Islamic principles and sound
and clear texts leads to the conclusion that the leasing of cultivable land for money is haram:
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The Prophet (peace be on him)
prohibited the leasing of land for a fixed amount of the yield such as one or two tons,
and permitted share-cropping only on the basis of a proportion such as one-half,
one-third, or one-fourth—that is to say, on a percentage basis. Such a basis is just
and equitable, as both partners share in the profit if the land is productive and in the
loss if blight strikes the crop. However, if one party is guaranteed a profit while the
other has to take the risk of ending up with nothing for his effort and toil, the whole
transaction resembles gambling or a usurious contract. If we reflect on the matter of
leasing land for money in this light, what difference do we find between the
last-mentioned practice and the type of share-cropping which is prohibited? In both the
owner of the land is guaranteed his share in the form of money regardless of what happens
to the land, while the lessee must gamble his effort and labor, not knowing whether he
will gain or lose.
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When the owner of an article lends it to
another person and charges rent for the use of it, he is rightfully entitled to this rent
in consideration of the fact that he prepared the article in question for the renter's
use; as the article becomes worn out by usage and depreciates over time, the owner
deserves compensation. But as far as land is concerned, in what way has the owner made it
ready for the lessee's use, since indeed, it is Allah and not the owner who makes the land
ready for cultivation. Again, how does land become worn out or depreciate by cultivation,
since land is not like buildings or machinery which depreciate over a period of time or
get worn out by being used?
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The person who rents a house lives in it,
thus receiving an immediate benefit, while the man who rents a piece of machinery uses it
and thus derives an immediate benefit. But the man who rents a piece of land does not
benefit from it at once, nor are his benefits assured. When he rents it he receives no
direct benefit from it, as in the case of renting a house, but works hard, plowing and
planting, in the hope of benefiting from it at a later date. His hope may be fulfilled or
it may not; consequently, any analogy between renting land and renting a house and the
like is a false one.
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In the two Sahihs of al-Bukhari
and Muslim it is reported that the Messenger of Allah (peace be on him) forbade the sale
of fruits until they were obviously in good condition and of ears of grain until they were
ripe and safe from blight. He gave the reason for this prohibition by saying,
"Tell me why, if Allah withholds the fruit,
any of you should take his brother's property."
If this is the position relative to
selling fruits which have appeared, but the safety of which is not assured, so that if
they are ruined by some calamity their sale would be nullified, how is it possible for a
person to take money for the use of a piece of cultivable land which has not yet been
plowed or planted? Is it not more appropriate that he be told, "Tell me why, if Allah
withholds the fruit, you should take your brother's property?"
I myself have witnessed how certain cotton fields were struck by an
infestation of caterpillars known as doodah until nothing was left of them except
dry stalks. Ne, the owners of the land demanded the rent, and the lessees had no choice
except to pay it, obliged by the conditions of the contracts which they had signed under
grave necessity. Wthen is the equality and justice so eagerly sought by Islam?
Consequently, there is no denying the fact that justice cannot be achieved
except through share-cropping on a proportionate basis,_ according to which the
gain or loss accrues to both parties alike. (Concerning this subject, refer to what has been said by Ibn Hazm in Al-muhallah
vol. 8, Ibn Taymiyyah in Al-qawaid al-nuraniyyah; Abul 'Ala Maududi in Milkiyyat
al-ard fil-lslam; and Professor Mahmoud Abu Sa'ud in his article, "Istighlal
al-ard fil-Islam," published in Al-Muslimoon.)
Although Shaikh al-Islam Ibn
Taymiyyah considers the leasing of land to be halal, he nevertheless remarks that
share-cropping is more akin to the justice of the Shari'ah and its principles,
saying "Share-cropping is preferable to renting and closer to justice and to the
principles of the Shari'ah, since in this case both parties share in the profit or
loss, in contrast to leasing for rent, under which the land owner takes his rent, while
the lessee may or may not receive the harvest. (From Ibn Taymiyyah's treatise, Al-hasbah fi al-Islam, p. 21.)
Another great thinker, Ibn al-Qayyim,
commenting on the oppression perpetrated by the rulers and military personnel on farmers
during his time, says: Had the soldiers and the rulers relied on what Allah and His
Messenger (peace be on him) have legislated and followed the practice of the Messenger
(peace be on him) and of the rightly-guided Caliphs in their dealings with the farmers,
Allah would have showered His blessings on them from the sky and the earth; they would
have been given to eat from above their heads and from beneath their feet, and from that
one-fourth of share-cropping would have received many times more than they receive by
oppression and tyranny. But their ignorance and greed prevented them from doing anything
but committing oppression and injustice, and thus Allah withheld His blessings and His
provision from them. In addition to being deprived of Allah's blessing in this world, they
will receive His punishment in the Hereafter. If it is asked, What is the legislation of
Allah and His Messenger (peace be on him) and the practice of the Companions in this
regard so that one may follow it' the reply is this: The equitable form of share-cropping
is that in which both the landowner and the cultivator are on equal footing, neither of
them enjoying any of those privileges for which Allah has sent down no authority. These
customs which they (the soldiers and rulers) have introduced are ruining the country,
corrupting the people, and have kept away Allah's help and blessings. Many of the rulers
and soldiers are consuming what is haram, and if the body is nourished by what is haram,
the Fire is its fitting abode. Such equitable share-cropping was the practice of the
Muslims during the time of the Prophet (peace be on him) and during the time of the
rightly-guided Caliphs. Such was the practice of the families and descendants of Abu
Bakr, 'Umar, 'Uthman, 'All and of the families of other emigrants (muhajireen). Great
Companions of the Prophet (peace be on him) such as Ibn Mas'ood, Ubay bin
K'ab, Zaid bin Thabit, and others expressed their opinions favorably concerning it, and this was also the
opinion of the jurists who rely on the hadith, such as Ahmad bin
Hanbal, Ishaq bin Rahawait, Muhammad ibn Isma'il al-Bukhari, Daoud bin 'All, Muhammad bin Ishaq bin
Khazimah, and Abu Bakr bin Nasr al-Maruzi. Other great Muslim scholars, such as
al-Laith
bin Sa'd, Ibn Abu Laila, Abu Yusuf, Muhammad bin al-Hasan and others, have all expressed
the same opinion. The Prophet (peace be on him) made an agreement with the people of
Khayber that they would work the land for half of the produce of fruit and crops, spending
their own money for the preparation of the land and the seed. This agreement remained in
effect during his lifetime and thereafter until 'Umar exiled them from
Khayber.
Accordingly, the scholars who say that the seed may be provided either by the worker alone
or by both the partners are entirely correct. Al-Bukhari in his Sahih mentions that
'Umar ibn al-Khattab employed people with the stipulation that if he ('Umar) provided the
seed, his share would be half and if they brought the seed their share would be more than
half. (AI-turuq al-hikmiyyah
fil-lslam by Ibn Qayyim, pp. 248-250.)
In all the reports-which have reached
us from the time of the Prophet (peace be on him) and his Companions, we find that the
cultivator's share was never less than one-half, and in some cases it was more. This
division, according to which the cultivator's share would not be less than half, as was
allotted by the Prophet (peace be on him) to the Jews of Khayber (Refer to what is said by Ibn Hazm in Al-muhallah, vol. 8;
Abul 'Ala Maududi in Milkiyyat al-arc fil-Islam, and Mahmoud Abu Sa'ud in his
article, "Istighlal al-ard fil-Islam," published in Al-Muslimoon.), appeals to the mind, for it is not appropriate that the share of
the land, which is an inanimate thing, should be greater than the share of the human, the
cultivator.
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Partnership in raising animals
is quite common in Muslim countries, especially in villages. One of the partners puts up
all or a part of the price of the livestock and cattle, while the other partner raises
them; the two then share the yield and the profits of this joint venture.
In order to form an opinion concerning this partnership, we should first
look at its various forms:
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In the first form of such a business, the
partnership is entered into for purely commercial purposes, for example, raising calves
for beef or cows and water buffalo for milk production.
It is supposed here that one partner contributes the price of the animals and the other
contributes the effort, that is to say, the management and supervision; the expenses of
feeding, watering, and the like are borne by the joint partnership and not by one partner
alone. After a sale is made, the feeding expenses are deducted from the proceeds before
dividing up the profits in the agreed-upon proportions. It is not just that one partner
alone be required to bear all the feeding expenses without receiving any commensurate
return, while the profits are divided between the two; this point is quite clear.
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The second form of such a business is the
same as the first except that the partner who manages the business also bears the feeding
expenses and in return benefits from the milk or makes use of the animals in the field for
plowing, irrigating, or planting; this is the situation when large animals are involved.
We see no harm in such a contract. Although one may not be able to balance exactly the
cost of feed with the benefits derived from milking or working the animal, so that there
is an element of uncertainty about it, we still prefer to consider this arrangement halal.
The element of risk is negligible, and there are other examples of such contracts
which are permitted by the Shari'ah. In the sound ahadith concerning
mortgages, the Prophet (peace be on him) stated the permissibility of using an animal
which is mortgaged for riding or milking, saying, "A mortgaged animal may be used for riding or milking by the
person who bears the expenses of feeding it.'' (Reported by
al-Bukhari on the authority of Abu Hurairah.)
In this hadith the Prophet
(peace be on him) equated spending on feeding the animal with using it for riding or
milking. Accordingly, if this type of mortgage is allowed for people's mutual benefit,
with the possibility that the expenses of feeding may be more or less than the benefit
derived from the animal by using it for riding or milking, we see no harm in allowing a
similar arrangement in the case of partnerships in raising animals, as the needs of people
are better served in this manner. This is my own deduction from this hadith, and I
hope it is correct.
However, if the partnership is in raising young calves which cannot be
used for work ofor milk with the stipulation that the price is to be paid by one partner
and the feeding expenses by the other, the rules of Islam do not permit such an
arrangement. The partner who bears the cost of feis the only loser, receiving no return in
the form of work or milk, while the other partner has the clear advantage. Such an
arrangement is contrary to the justice which Islam seeks to establish in every
transaction. However, if the two partners share the cost of feeding and raising the animal
until it reaches the age of usefulness, such an arrangement is, in our view, halal.
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