Al-Ghaar Dhaamin And its Juristic...

A Refereed Study

Al-Ghaar Dhaamin1 Rule And its Juristic Applications

Dr. Jameel bin Abdul Muhsin Al-Khalaf2

1 The person who deceives another person shall be liable for the damage he causes

(literally, the deceiver is liable). 2 Assistant Professor, Fundamentals of Jurisprudence, Faculty of Sharee'ah, Imam

Muhammad bin Saud Islamic University.

Al-Ghaar Dhaamin Rule and its Juristic Applications

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All praise belongs to the Lord of all the worlds and may Allah's peace and blessings be upon the last Prophet, his family and companions.

The Islamic Sharee'ah is a comprehensive one; it addresses all human issues at all times and places. All human activities have rulings in the Islamic Sharee'AH Allah says, "And We have sent down to you the Book explaining all things, a Guide, a Mercy, and Glad Tidings to Muslims."3 He also says, "It is not a tale invented, but a confirmation of what went before it, a detailed exposition of all things, and a guide and a mercy to any such as believe."4

Imaam Ash-Shaafi'ee (may Allah have mercy on him) (d. 204 AH) writes, "There is no single event that may take place to the people of the religion of Allah but there is a guide in the Book of Allah on how to handle it."5

Al-Khattaabee (d. 388 AH) writes, "Allah Al-Mighty has not left anything without a rule and nothing without evidence showing the solution for it."6

That said, the Islamic jurisprudence is capable of coping with the change of times and conditions thanks to the gestalt rules it is based on. Therefore, the rules of the Islamic jurisprudence are among the most important subjects that students of knowledge should pay attention to because they are the means that ensure control of juristic branches and particular provisions and verification of these branches in order that they may be associated with their gestalt rules.

Jurists have always been aware of the importance of these juristic rules and elaborated on them in their books. Al-Qaraafee (d. 684 AH) considered them as the second fundamental of the Islamic Sharee'ah and the only means to gather the different rulings and provisions of the Islamic jurisprudence and make it easy for jurists to understand its various branches, especially when undertaking a judicial post. Without them, the events and rulings on them cannot be controlled for they are diverse and complicated.7 He states, "The sublime Muhammadan

3 Surat An-Nahl: 89. 4 Surat Yusuf: 111. 5 Ar-Risaalah, p. 20. 6 Ma'aalim As-Sunan with At-Tahdheeb, 5/6. 7 Juristic Rules, Muhammad Ar-Rokee, p. 14.

Dr. Jameel bin Abdul Muhsin Al-Khalaf

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Sharee'ah, may Allah add to its lofty position, has included fundamentals and branches in two sections as follows: 1) Fundamentals of jurisprudence, most of which include rules or provisions emanating from Arabic words which are subject to abrogation and preponderance like "orders denote obligation", "prohibitions denote illegality", "general texts may be specified" and the like. Things outside this pattern are only those related to analogy, a narration by a single narrator and the qualities of mujtahids and 2) Gestalt juristic rules which are numerous in number and great as to their benefit for they include the secrets and wisdoms of the Islamic Sharee'AH Each rule has countless branches which the fundamentals of jurisprudence do not include but they are referred to in general. These rules are of great position and importance in jurisprudence because knowing them raises the position of jurists and by which the degree of jurisprudence is elevated and the ways of fatwaa can be elucidated."8

He adds, "He who masters jurisprudence and its rules can dispense with the majority of particular provisions as the latter are included in the gestalt rules, and hence can find consistency between the texts that others argued to have discrepancies."9

Shaikhul Islam Ibn Taymiyah (d. 728 AH) writes, "The jurist should have knowledge of the gestalt rules to which the particular provisions can be referred in order for him to have the capacity of discerning rulings on specific events. Otherwise, he will remain ignorant of these particular provisions as a result of his ignorance of the gestalt rules, and hence a grave corruption may be the consequence."10

A profound study of the books of jurisprudence reveals that some rules need more elaboration through the elucidation of their proofs, conditions and applications.

One such rule is "Al-Ghaar Dhaamin" (the deceiver is liable) which, though very important and has great effect on various aspects of life, no independent study has been singled out to discuss it. Therefore, I found

8 Al-Furooq, 1/3. 9 Ibid, 1/3. 10 Majmoo' Al-Fataawaa, 29/203.


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it necessary to discuss this rule in order to make it more understandable to people.

The importance of this topic lies in the fact that it relates to two very significant topics in jurisprudence. These are:

1. Ghurur or taghreer (deception) which incorporates intricate issues, broad provisions and numerous forms which people need to know, especially with the development of life and the change of living patterns, change in people's morals and code of ethics and the diversity of commercial dealings among people which in turn resulted in numerous and diverse forms of deception. Imaam Al-Haramain (d. 478 AH) highlights the importance of the study of deception and the need to elaborate on its various forms and means. He says, "What we need to elucidate here before going into details is to give due attention to the forms of deception as this was not tackled by the imaams of the madh-hab. Perhaps our predecessors relied on the audacity of their students. However, with the passage of time, the issues which they considered easy for them have become ordeals for the people of our present time."11

2. Adh-Dhamaan (liability) which has a great importance in jurisprudence as it repeatedly takes place and many disputes occur as a result of it. Therefore, judges and muftees should study its rules and related issues meticulously. Ibn Ghaanim Al-Baghdaadee notes, "The knowledge of the questions related to liabilities is one of the most important aspects of knowledge since disputes and differences mostly take place because of them. It is mandatory on judges and Muftees in the first place as well as all pious Muslims committed to their religion and fear the day on which they will meet their Lord to know the rulings related to liabilities in order for them to be able to know the rights of people from which they may not be released unless they satisfy the party to whom they are due."12

11 Nihayat Al-Matlab, 12/426. 12 Majma' Adh-Dhamaanaat, p. 2.


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Topic One: Meaning of the Rule

Section One: Linguistic and Technical Meanings

I. Linguistic and Technical Meanings of the Term Al-Ghaar: Linguistically speaking, the present participle ghaar is derived from

the root verb gharra, to deceive someone and promise him something false. Moreover, it means giving something false a description that might deceive the hearer.

Ar-Raazee (d. 666 AH) states, "Gharrahu and yaghurruhu, to deceive and delude him."13

Al-Fairuzabaadee (d. 817 AH) states, "Gharrahu, to deceive him."14 Allah says, "O man! What has gharraka from your Lord, Most

Beneficent?"15 This means, "What has deceived you to neglect what your Lord has enjoined on you."16 It is also interpreted as "what deceived you to disobey your Lord and feel secure from his punishment by driving you to commit sins and follow your whims."17

Ghurur, on the other hand, is the vanities of life that deceive human beings: "Let not then this present life deceive you."18 This means that the vanities of this life should not deceive one to neglect the injunctions of one's religion. "Nor let the Chief Deceiver deceive you about Allah;"19 namely Satan who gives false promises to human beings.20

The word ghaar can also be used as a present participle "mugharrir" meaning someone who cheats others and make them prone to loss.21

Ar-Raazee writes "Taghreer means to subject oneself to risk."22

13 Mukhtaar As-Sihaah, p. 472. 14 Al-Qaamoos Al-Muheet, 2/101-102. 15 Surat Al-Infitaar: 6. 16 Tahdheeb Al-Lughah, Al-Azharee, 17/76-77. 17 Lisaan Al-Arab, 5/22 and Taaj Al-Aroos, 13/215. 18 Surat Faatir: 5. 19 Surat Faatir: 5. 20 Lisaan Al-Arab, 5/22 and Taaj Al-Aroos, 13/215. 21 Al-Qaamoos Al-Muheet, 2/102; Lisaan Al-Arab, 5/22 and Al-Kulliyaat by Al-Kafawee,

3/296. 22 Mukhtaar As-Sihaah, p. 472.


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Therefore, the word ghurur (deception) is more suitable for the context here than the word taghreer (risk); the first one denotes an act of deception by someone against another one while the second one is an act of subjecting oneself to risk. The books of language have never indicated that the act of taghreer is derived from the act of ghurur for this latter one is an act of deception by someone against another one.23

Muslim jurists have used both words but they used the word ghurur more than they used the word taghreer though contemporary jurists tend to use the word taghreer24 perhaps to distinguish it from gharar.

The term ghurur has more than one technical definition, most important of which are the following:

1. To act on the commodity subject of sale in a way that makes the buyer think it to be perfect while in reality it is not.25

It should be noted that the above definition does not include all forms of deception; rather it is limited to deception by deed but not deception by word and deception by the concealment of a defect.

2. To give something an unreal appearance and to describe it in a way that adds to it something not existing in it with the aim of attracting the other party to it in order to make him enter into the contract.26

This definition is better than the previous one because it includes deception by word; however, it omits deception by the concealment of defects. Moreover, it limits deception to contracts.

3. Enticement by verbal or actual false mean to attract either contracting party to conclude the contract.27 This definition can be criticized in the same way as the previous ones because it limits the act of deception to contracts only.

23 Al-Qaamoos Al-Muheet, 2/102; Lisaan Al-Arab, 5/22; Al-Qaamoos Al-Fiqhee, p. 272 and

Al-Gharar and its Effect on Contracts, As-Siddeeq Adh-Dhareer, p. 35. 24 Al-Gharar and its Effect on Contracts, p. 3. 25 Aqd Al-Jawaahir Ath-Thaminah by Ibn Shas, 2/704; Mawaahib Al-Jaleel by Al-Hattaab,

6/349 and At-Taaj wal Ikleel by Al-Mawaq, 6/349. 26 Majallat Al-Ahkaam Al-Adliyah with its Interpretation by Al-Ataasee, 2/25, article 164;

Ahkaam Al-Mu'amalaat Ash-Shar'iyah, Sheikh Alee Al-Khafeef, pp. 377-380. 27 Al-Madkhal Al-Fiqhee Al-Aam, Mustafa Az-Zarkaa, 1/279.


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4. Making someone accept something useless through a deceptive and misleading way that attracts him to accept it, which if he knows its reality, he would not accept it.28

5. Making and directing someone in a deceptive way to accept something useless for him, which if he knows its reality, he would not accept it.29

The above two definitions are the best ones. However, it may be understood from them that deception is only realized by enticement through deceptive and false means which make the thing subject of sale appear contrary to its actual reality, which action is always associated with a bad intention on the part of the deceiver.30

However, jurists sometimes use the term ghurur to mean pure error without bad intention on the part of the deceiver. The deceiver himself might be the victim of deception, ignorant or prone to doubt.

Therefore, it is better to define ghurur as: "Enticing someone to act or to accept something which is not in his interest or the interest of any other one by a wrong way or otherwise, which if he knows its reality, he would not accept it."

II. Difference between Gharar and Ghurur: Ghurur and taghreer differ from gharar both linguistically and legally. Linguistically speaking, ghurur means deception while gharar means

risk; namely to subject oneself to peril and risk.31 According to jurists, the two terms have three points of difference as

follows: 1. Risk is related to contracts while deception is related to contracts

and other dealings. 2. Risk is something the consequence of which is unknown32 contrary

to deception which may be the consequence of a statement or an action

28 Liability in Islamic Jurisprudence, Sheikh Alee Al-Khafeef, 1/201. 29 Liability for Damaged Properties in Islamic Jurisprudence, Sulaimaan Al-Ahmad, p.

78. 30 Liability in Islamic Jurisprudence, 1/201 and Liability for Aggression in Islamic

Jurisprudence, Muhammad Siraaj, p. 257. 31 Mukhtaar As-Sihaah, p. 472; Al-Qaamoos Al-Muheet, 2/102 and Al-Misbaah Al-Muneer, p.

445. 32 Al-Mabsoot, 13/194 and Al-Qawaa'id An-Nuraaniyah by Ibn Taymiyah, p. 138.


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by someone to deceive another one about something. Risk includes no deception by either contracting party as both of them know nothing of the reality of the property subject of the contract. This difference can be made clearer by the following example: If someone sells a straying camel to someone the location of which is known to the seller but he fails to inform the buyer of the said location, this is an act of deception. However, if the seller himself does not know its location, it is a risk and uncertainty with regard to the buyer.

3. Deception gives the deceived party in some cases the right to terminate the contract because this act is a fault related to satisfaction. However, risk renders the contract initially invalid as contracts that include risk or uncertainty are prohibited because they are the right of Allah which human beings have no right to drop even if either contracting party has an interest in such a contract. It is a matter of public rights which are jeopardized by major rather than minor risks as the latter type of risk is forgiven for it is impossible for someone to be secure from in all things.33

III. Words Related to the Rule: These are: 1. Tadlees (Concealment), 2. Ghish (Cheating), 3. Khilaabah (Manipulation), and 5. Khidaa' (Fraud). 1. Tadlees (Concealment): Linguistically speaking, Ibn Faaris (d. 395 AH) states, "The verb dallasa

denotes concealment and darkness. If someone is described as a mudallis, he then conceals some defect in the property subject of sale to keep the buyer in the dark about such defect."34

Therefore, tadlees is a type of keeping one in the dark by concealing something defective in the property he intends to sell. This act includes trickery, deception and cheating together.35

33 Liability for Damaged Properties, p. 81; Gharar and its Effect on Contracts, p. 35 and

Evaluation in Islamic Jurisprudence, Muhammad Al-Khudhair, pp. 190-110. 34 Mu'jam Maqaayees Al-Lughah, 2/296. 35 Az-Zaahir by Al-Azharee, p. 304; Al-Misbaah Al-Muneer, p. 198 and Lisaan Al-Arab,

2/404.


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Technically speaking, the Maalikites define the term thus: "It is when the seller knows about the defect in the property and sells it but fails to mention the defect in it to the buyer."36

The Shaafi'ites define it thus: "It is when the commodity has a hidden defect about which the seller fails to inform the buyer about it and conceals it."37

However, the Hanbalites give the term a more conclusive definition; they do not limit it to the concealment of the defect but also to include every illusive statement by the seller about the qualities of the commodity with the aim of generating a higher price. They say, "it is the concealment of a defect in the commodity or an act that may increase the price even if it is not a defect."38

In Majallat Al-Ahkaam Ash-Shar'iyah, it is defined thus: "Tadlees is an act that deceives the buyer, a description of the commodity in a manner that entails extra price or a concealment of a defect."39

Based on the above, the following can be noted: 1. According to the Maalikites and the Shaafi'ites, tadlees is limited to

the concealment of defect only for which they give the buyer the option of defect.40 They do not call any act done to the commodity to be thought to be perfect while in reality it is not an act of tadlees. Rather, they call it deception by deed.41 According to them, the proof of option in the case of meeting caravans and najash (increasing the price of a commodity by

36 Al-Kaafee by Ibn Abdul Bar, 2/711. 37 Az-Zaahir, p. 304 and Takmilat Al-Majmoo' Sharh Al-Muhadhab by Al-Muti'ee, 11/304. 38 Al-Mubdi' byu Ibn Muflih, 3/419 and Kashaaf Al-Qinaa' by Al-Bahootee, 3/213. 39 Majallat Al-Ahkaam Ash-Shar'iyah by Al-Qaaree, p. 113, article 210. 40 According to the Maalikites, the option of defect is established for either contracting

party if a defect appears in either item of sale contrary to the conditions of the contract or to norms if the commodity is known to be usually free from even if it is not stipulated in the contract. They consider both the conditional and actual deception as one. See Al-Muqadimaat lil Mumahidaat by Ibn Rushd, 2/102; Jaami' Al-Ummahaat by Ibn Al-Haajib, p. 357 and following pages and Mawaahib Al-Jaleel, 6/349. According to the Shaafi'ites and Ibn Shaas from the Maalikites, the option of defect is established under a condition, a norm or by actual deception. See Al-Waseet by Al-Ghazaalee, 3/119 and following pages; Iqd Al-Jawaahir Ath-Thaminah, 2/754 and Rawdhat At-Taalibeen by An-Nawawee, 3/116 and following pages.

41 Rawdhat At-Taalibeen, 3/125 and Mawaahib Al-Jaleel, 6/349.


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someone who does not want to buy it in order to cheat a person whishing to buy it about its price) is the deception by word.42

2. According to the Hanbalites, tadlees includes the concealment of defect as well as deception by deed. If the price becomes different, they give the buyer the option of concealment either to accept the commodity or to return it.43 According to them, the option of defect is the deficiency resulting from the defect. Therefore, if someone buys a defective commodity without knowing it to be so, he has the option either to return it or accept it with compensation.

They consider deception by words as the resultant of ghubn under which they give the buyer the option in three cases:

a. Meeting the caravans,44 b. Najash, and c. The mustarsil.45 3. Tadlees, as a juristic term, is not used by the Hanafites; rather,

deception is the term they use which, according to them, means enticement by false verbal or actual mean to attract either contracting party to conclude the contract. They divide it into two types:

a. Deception in price, which they call a deception by word like when the seller tells the buyer that he was offered a certain price but he did not accept it, and any similar false enticements. If the deception by word is associated with grave ghubn, the deceived party has the right to terminate the contract in order to protect himself against harm. They call this the option of ghubn and taghreer.

b. Deception in description, which is the deception by deed, like retaining the water of the well for a while and then letting it out to make

42 Rawdhat At-Taalibeen, 3/128; Jaami' Al-Ummahaat, p. 350 and At-Taaj wal Ikleel, 6/252. 43 Al-Mubdi', 3/424 and following pages and Kashaaf Al-Qinaa', 3/215. 44 It is when one person or more meets the supplier of foodstuff or other products outise

the town and concludes with him a contract of sale before the supplier enters the market place whether the buyer deceives him about the price or not. See Fathul Qadeer, 5/240; Al-Ma'oonah, 2/1033; Al-Um, 3/111 and Al-Mughnee, 6/312.

45 Al-Mubdi', 3/415; Kashaaf Al-Qinaa', 3/211. The Mustarsil is the person who knows nothing about the value of commodities or is good in bargaining; he puts his trust in the seller but finds later on that he is cheated. See Tasheeh Al-Furoo' by Al-Mirdaawee, 4/97 and Majmoo' Al-Fataawaa, 29/299.


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the buyer believe that it is full of water or to tie up the cow's udder in order to collect more milk so as to deceive the buyer that the cow's udder is full of milk. Therefore, if deception is proved, the buyer has the option under deception by deed either to return the cow and pay for the value of the milk he used or to accept it according to Abu Yusuf. According to Abu Hanifah, the buyer has no right to return it but has the right to accept it with the difference in price.46

However, the concealment of defect, which is the form of tadlees according to the Maalikites and Shaafi'ites and one type of it according to the Hanbalites, gives the buyer the option of defect according to the Hanafites.47

4. Some jurists interchange the two words. Examples include the following:

An-Nawawee (d. 676 AH) writes, "This act, namely tying up the cow's udder, is prohibited because it is a type of tadlees."48

Ibn Muflih from the Hanbalites (d. 884 AH) writes, "Because it is a type of tadlees that misleads the buyer, the latter has the right of option."49

Al-Hajjaawee (d. 968 AH) writes, "The option of tadlees is given to the buyer because such an act is prohibited since it is a deception of the buyer."50

Al-Bujairmee writes, "The option for deception by deed which is prohibited because it is a type of tadlees and gharar."51

Considering the definitions of ghurur and tadlees and their various forms and applications according to the jurists, it is found that the term ghurur is more comprehensive than tadlees because ghurur is used in contracts and other dealings while tadlees is limited to sale contracts and associated dealings.

46 Al-Madkhal Al-Fiqhee Al-Aam, 1/379 and following pages; Durar Al-Hukkaam, 1/287

and 368. 47 Haashiyat Ibn Abideen, 5/3 and Durar Al-Hukkaam, 1/335. 48 Rawdhat At-Taalibeen, 3/125. 49 Al-Mubdi', 3/420. 50 Al-Iqnaa' with its Commentary Al-Kashaaf, 3/213. 51 Haashiyat Al-Bujairmee, 2/244.


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2. Ghish (Cheating): Linguistically speaking, Ibn faaris writes, "Ghish (cheating) is a word

used to indicate weakness and hastiness. It is usually said that Ghish is when you do not give the proper advice to the one who asks for it.'"52

Therefore, the word ghish is the opposite of good advice. Moreover, the term indicates that someone has given another one advice against his interest and showed him something other than the one he has hidden.53

Hence, a magshoosh is an impure or an imitation commodity.54 Originally, the word ghish refers to unclear water.55 It also means hastiness.56 Technically speaking, the term ghish has several definitions as follows: 1. The Hanafites define it thus: "It is when the commodity has

something defective which if the buyer knew about he would not buy it."57 This definition limits cheating to the defect innate in the commodity which reduces its price.

2. The Maalikites define it thus: "It is when the seller falsely describes his commodity to be perfect or conceals the defect in it."58 This definition includes deception by deed and concealment.

3. The Shaafi'ites define it thus: "It is when the seller conceals a defect in the commodity which if the buyer knew about he would not buy it at the named price."59 This definition limits cheating to concealment.60

52 Mu'jam Maqaayees Al-Lughah, 2/281. 53 Al-Sihaah by Al-Jawharee, 3/1013; Lisaan Al-Arab, 5/38; Al-Qaamoos Al-Muheet, 2/281

and Al-Misbaah Al-Muneer, o. 447. 54 Al-Qaamoos Al-Muheet, 2/281. 55 An-Niyaahah fee Ghareeb Al-Hadeeth by Ibn Al-Atheer, 3/369 and Mashaariq Al-Anwaar

by Qaadhee Iyaadh, 2/1393. 56 Lisaan Al-Arab, 5/38 and Mujmal Al-Lughah by Ibn Faaris, 2/682. 57 Minhat Al-Khaaliq alaa Al-Bahr Ar-Raa'iq by Ibn Abideen, 6/38. The original definition

is by Ibn Hajar Al-Haitamee from the Shaafi'ites in his book Al-Fataawaa Al-Fiqhiyah Al-Kubraa, 2/270. Ibn Abideen comments on it thus: "Our rules, namely those of the Hanafites, do not object to it." He adds, "We have no objection to accept it."

58 Sharh Hudood Ibn Arafah, Ar-Rassaa', 1/370. 59 Nihaayat Al-Muhtaaj, 4/71. 60 Hashiyat Al-Jamal alaa Sharh Al-Manhaj, 4/296 and Hashiyat Al-Bujairmee alaa Al-

Manhaaj, 2/166.


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Some other jurists define it thus: "A concealment related to the very commodity which makes it contrary to what the buyer may think it to be."

The words "related to the commodity" exclude the concealment that relates to the description of the commodity such as when the seller gives a false description of the commodity, which is a type of deception by deed. The same words also exclude the concealment of something not related to the commodity such as when it is related to the contract such as falsely telling the buyer that he has been offered a higher price. All these are types of deception by word and betrayal, but not cheating, since betrayal is more general than cheating.61

4. The Hanbalites define it thus: "It is when the commodity or likewise includes a defect which if the buyer knew about, he would not buy it."62

This definition also limits cheating to the defect innate in the commodity.

They also define it thus: "When the seller tells the buyer of the advantages of the commodity but hides its disadvantages or when he conceals a defect from the buyer or does something to the commodity to make it look better in the eyes of the buyer."63

This definition is broader than the above because it includes concealment and deception by deed.

It is noticed that the above definitions do not include all forms of cheating committed in the sales of amaanah which are part of muraabaha,64 sales by transfer65 and discounted sales.66 They also exclude

61 Hashiyat Al-Jamal alaa Sharh Al-Manhaj, 4/296. 62 This definition is proposed by Sheikh Hassan bin Hussain bin Sheikh Muhammad bin

Abdul Wahhaab. See Ad-Durar As-Saniyah fee Al-Ajwibah An-Najdhiyah, 6/60. 63 This definition is proposed by Sheikh Abedullah Aba Butain. See Ad-Durar As-

SaniyAH 64 It is when the seller says to the buyer, "I have bought it for one hundred and I sell it to

you with one hundred and ten as a profit. See Al-Hidaayah with Fathul Qadeer, 5/325; Ash-Sharh Al-Kabeer with Haashiyat Ad-Dusooqee, 3/158; Fathul Azeez, 4/5 and Al-Mughnee, 6/266.

65 It is when a person buys a commodity for a specific price and resells it to someone else for the same price. See Al-Hidaayah with Fathul Qadeer, 5/253; At-Taaj wal Ikleel, 6/427; Az-Zaahir, p. 220; Kashaaf Al-Qinaa', 3/229 and the Kuwaiti Encyclopedia of Islamic Jurisprudence, 14/195.


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najash and misleading in sales like meeting caravans, the sale of mustarsil and otherwise.

Therefore, the best definition of all types of cheating is: "It is when either contracting party or a third party gives the contract a quality other than the real one by actual or verbal means and when he conceals an undesired quality which if either contracting party knew about, he would not enter into the contract.67

Considering the definitions of deception and cheating according to jurists, it is found that deception is more comprehensive than cheating because the former is related to contracts and other dealings while the latter is limited to contracts. However, some jurists opine that both terms have one and the same meaning.68

3. Khilaabah (Manipulation): Linguistically speaking, the word khilaabah means manipulation or

betrayal. Some linguists say that it means twisting of words to cheat somebody. It is reported that the Prophet (peace and blessings be upon him) said to a man who used to be cheated, "When you sell or buy, say, 'No khilaabah,69 i.e. no cheating.'"70

Technically speaking, Ibn Al-Humaam71 and Mansoor Al-Bahootee (d. 1051 AH)72 define khilaabah as manipulation.

An-Nafraawee defines it as lying about the price of a commodity either by explicit or implicit words.73 However, Ash-Shirbinee defines it as fraud and deception.74

66 It is when a person buys a commodity for a specific price and resells it to someone else

for a lower price. See At-Ta'rifaat, p. 226; Al-Muttali', p. 260 and Lexicon of Juristic Terminology and Vocabulary, Mahmood Abdul Mun'im, 3/486.

67 The Effect of Cheating in Contracts, Abdullah As-Sulamee, 1/38. 68 Sharh Hudood Ibn Arafah, Ar-Rassaa', 1/370. 69 Reported by Al-Bukhaaree, Book of Sales, 4/395, # 2117. and Muslim, Book of Sales,

3/346, # 1533 70 Tahdheeb Al-Lughah, Al-Azharee, 7/419; Al-Misbaah Al-Muneer, p. 176 and Lisaan Al-

Arab, 2/290. 71

Sharh Fathul Qadeer, 5/599. 72 Kashaaf Al-Qinaa', 7/437. 73 Al-Fawaakih Ad-Dawaanee, 2/224. 74 Mughnee Al-Muhtaaj, 2/47.


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Sheikh Az-Zarqaa defines it thus: "It is when either contracting party deceives the other by a false verbal or actual mean to make him accept the contract which he would not accept had not been for such deception."75

He is of the opinion that the term khilaabah covers all forms of fraud including betrayal, najash, deception and concealment.76

Hence, the term khilaabah is more comprehensive than deception. However, the apparent meaning of the above hadeeth indicates that khilaabah is limited to contracts, and thus deception is more general than manipulation because the former occurs in contracts and other dealings.

4. Khidaa' (Fraud): Linguistically speaking, the verb khada'a means to trick somebody and

to intend something bad for him.77 It is also used to mean a tricky market, i.e. a fluctuating one.

Therefore, khidaa' is to show something and hide its opposite.78 According to the Qur'aan, "They only trick themselves,"79 meaning that they show something contrary to what they hide for they show belief but hide disbelief. Therefore, a trick is any misleading act, e.g. war is a trick.80

The technical meaning of the term is very similar to the linguistic one according to jurists.81

Fraud and deception take the same meaning as used by jurists.82 However, it can be said that deception is more general than fraud and cheating because deception, according to jurists, sometimes includes mere error if there is no bad intention on the part of the deceiver; for he might be ignorant, doubting or even deceived by someone else.

75 Al-Mdkhal Al-Fiqhee Al-Aam, 1/374. 76 Al-Mdkhal Al-Fiqhee Al-Aam, 1/374-386. 77 As-Sihaah, 3/1201. 78 Lisaan Al-Arab, 2/228-229 and Al-Qaamoos Al-Muheet, 3/16-17. 79 Surat Al-Baqarah: 9. 80 Al-Qaamoos Al-Muheet, 3/16-17. 81 As-Sihaah, 3/1202. 82 Kuwaiti Encyclopedia of Islamic Jurisprudence, 19/32.


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IV. Types of Ghurur (Deception): According to jurists, deception can be divided into three types

depending on the mean used to realize it. These are: 1. Deception by deed: It is an act by either contracting party or a third

party to show the subject of contract other than it really is or delude either party that it is free from defects. For example, the seller may tie up the udder of the sheep to cheat the buyer about its milk or retain the water of the well to make the buyer think it has plenty of water but later on he finds the contrary.83 Moreover, the seller may paint a used car to conceal the defects of the body and deceive people that it is good and free from defects or he may change the trademark with another one. Examples also include the act of a betrothed girl who may put on a false hair, contact lenses or otherwise.

2. Deception by word: It is any statement that either contracting party or a third party may utter to show the subject of the contract other than it really is and to delude either party that it is free from defects. For example, a company may market a certain product in a way that attracts people to it while it is contrary to the reality of the product. Moreover, an exchanger may state that the currency he is exchanging is good whereas the fact is that it is forged.

Deception by word includes the najash sale, meeting the caravans, sale of amaanah and the like. Deception by word may also be used in marriage such as when a man is told that the woman he is proposing to is virgin while she is not.

3. Deception by concealment: This is what is called the concealment of defects which we have already explained. As already stated, the Maalikites and Shaafi'ites call it tadlees while the Hanbalites call it deception by deed.84

V. Definition of Liability Linguistically speaking, the word dhamaan has two meanings: 1)

Guarantee of something.85 This is clear in the hadeeth:" He who

83 Rawdhat At-Taalibeen, An-Nawawee, 3/469 and Deception and its Effect on Contracts,

Kifaah As-Suree, p. 64. 84 Already discussed. 85 Al-Qaamoos Al-Muheet, 3/39 and Mukhtaar As-Sihaah, p. 384.


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guarantees that which is between his jaws and that which is between his legs, I guarantee paradise for him."86 2) Liability for something.87 This is clear in the hadeeth about a slave owned by two persons and one of them frees him, and hence he becomes liable to pay the share of the other person in the slave in order that the slave may acquire his full freedom.88

The two above meanings are closely interrelated; each one of them leads to obligation or liability; for the guarantor has to pay the debt he is liable to pay and the liable person is also responsible to pay what he guarantees.

Al-Fayyoomee writes, "If someone guarantees an amount of money, he is then obliged to pay it for he has rendered himself liable to do so."89

Technically speaking, jurists have used the term dhamaan in the above two linguistic meanings.

1. They use it to mean guarantee. The Hanafites, Maalikites, Shaafi'ites and Hanbalites have entitled a part in their books under the term dhamaan which means to guarantee properties and bodies.90

2. They use it to mean liability. In Majallat Al-Ahkaam Al-Adliyah we read, "A liability is to give back something of an equal quality for the guaranteed thing or its value.91 In the same journal we read, "Liability is to give back an equal thing or its value."92 However, the term has a broader meaning; namely to be liable for the thing and to assume the consequences of its damage.93 Therefore, some contemporary jurists define dhamaan thus: "Liability for a right or a compensation for damage."94 In explaining this definition, it is said that the dhimma becomes liable for trespassing the limits of Sharee'ah and personal

86 Reported by Al-Bukhaaree, Book of Conduct, part on controlling one's tongue. 11/314,

# 6474, narrated by Sahl bin Sa'd (may Allah be pleased with him). 87 Al-Qaamoos Al-Muheet, 3/39 and Mukhtaar As-Sihaah, p. 384. 88 Reported by Muslim, Book of Freeing Slaves, 2/320, # 1502. 89 Al-Misbaah Al-Muneer, 2/737. 90 However, they differ as to some particular cases. See Hashiyat Ibn Abideen, 5/281;

Minah Al-Jaleel, 6/198; Al-Muhadhab, 1/342; Mughnee Al-Muhtaaj, 2/203; Kashaaf Al-Qinaa', 3/274 and Daqaa'iq Ulee An-Nuhaa Sharh Al-Muntahaa, 2/252.

91 P. 160, article 416. 92 P. 14, article 218. 93 Al-Madkhal Al-Fiqhee Al-Aam, Mustafa Az-Zarkaa, 2/1033, clause 649. 94 According to Dr. Mustafaa Az-Zarqaa in Al-Madkhal Al-Fiqhee Al-Aam, p. 14.


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guarantees under contracts and the like and that the right includes the right of Allah such as the recompense for hunting in the holy land and the rights of human beings like debts and guarantees.

Therefore, compensation for damage covers harm to humans including established damages like blood money and estimated ones like compensation for injuries as well as financial damages under contracts and other financial damages outside the scope of contracts like usurpation and damage of properties.95 Perhaps the last meaning is the one meant here. This is proved by the reasons of liability according to jurists.

VI. Words Related to Dhamaan: There are some terms related to the meaning of the term dhamaan

including the following: 1. Taghreem (Liability), 2. Uhdah (Trust), and 3. Tabi'ah (Consequence). 1. Liability: Linguistically speaking, the verb gharima is to become liable to pay

something one is obliged to pay.96 Therefore, the deceived party has the right to hold the deceiver liable

for the harm caused to him. The statements used by jurists are consistent with the technical meaning of the term. Ash-Shaafi'ee writes, "Any harm caused by the deceiver to the deceived shall be the liability of the deceiver."97

Sheikhul Islam Ibn Taymiyah writes, "The buyer shall have the right to be compensated by the deceiver with regard to the price and the amount of money he may pay in relation to the harm caused to him by the deceiver."98

Ibn Rajab (d. 795 AH) writes, "Muhammad bin Abdul Hakam is reported to have quoted the ruling given by Ahmad on this issue as

95 Theory of Guarantee in the general Islamic Jurisprudence, p. 14. 96 Mu'jam Maqaayees Al-Lughah, 4/419; Al-Misbaah Al-Muneer, p. 446; Lisaan Al-Arab, 5/31

and An-Nihayah fee Ghareeb Al-Hadeeth by Ibn Al-Atheer, 3/363. 97 Al-Um, 6/253. 98 Mukhtasar Al-Fataawaa Al-Misriyah, p. 402.


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being the same ruling given by Maalik: the one who uses the dress shall not be fined but the washer shall be liable to the owner of the dress."99

Ash-Shawkaanee writes, "The deceived party shall hold the deceiver liable."100

2. Trust: Linguistically speaking, the verb ahida means to put something in the

custody or under the trust of somebody. So, the uhdah is the document to which contracting parties refer in case of dispute.101

Technically speaking, the term uhdah can be defined thus: "A guarantee to pay for the damage or the thing put in the custody or under the trust of somebody. It is to guarantee the price for the buyer if the sold item appears to be defective or deficient."102

This guarantee is concluded if either contracting party fears to be deceived by the other party or a third party. It is a mean of precaution against deception and other acts of cheating.

The uhdah may be used to mean more than the guarantee for damage. Al-Kasaanee (d. 587 AH) writes, "He has the right of recourse against the first attorney because he was deceived by him when he appointed him to receive something; for every deceiver is liable for the harm caused to the deceived."103

3. Consequence: Linguistically speaking, the word tabi'ah means the consequence of

every harm or injustice done to any one.104 Therefore, the deceived may hold the deceiver liable for the

consequences of deception. Ibn Abdul Bar (d. 463 AH) writes, "If it becomes impossible for him to pay the debt and accepts to join his dhimma with that of the other, the transferring party is released from the debt with no other consequence and the debt becomes the liability of the

99 Al-Qawaa'id, p. 230 and Al-Istidhkaar by Ibn Abdul Bar, 18/502. 100 As-Sayl Al-Jarraar, 4/422. 101 Mu'jam Maqaayees Al-Lughah, 4/167 and Al-Misbaah Al-Muneer, p. 435. 102 At-Ta'reet by Al-Jurjaanee, p. 138; Al-Qawaa'id by Al-Hisnee, 3/255; Al-Madkhal Al-

Fiqhee Al-Aam, 1/542 and Lexicon of Juristic Terminology and Vocabulary, Mahmoud Abdul Mun'im, 2/552.

103 Badaa'i' As-Sanaa'i', 7/438. 104 Al-Misbaah Al-Muneer, p. 72.


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party to whom the debt is transferred. The transferring party may not be held liable any more whether the transferee dies or becomes insolvent unless he transfers the debt to a poor person who is not known to be so by the creditor."105

Section Two: General Conditions of Liability

Jurists have put down some conditions that should be met in order for liability to take effect. If any or all of these conditions are not met, the guarantee is not considering obliging to the guarantor. These conditions include the following:

1. The things guaranteed should be a property; a dead animal or its skin and the split blood and other things which are of no value cannot be the subject of any guarantee.106

2. The guaranteed property should have value according to the Islamic Sharee'ah; no guarantee may be given for wine or swine for a Muslim and other things which have no value.107

3. The guaranteed property should be owned by somebody; any property which has no owner is available to any one. No guarantee may be given for damaged available properties which nobody owns like birds in the air and fish in the water.108

4. The guaranteed property should be a respected one in order for its guarantee to be useful. Therefore, there is no guarantee on the part of a Muslim if he damages the property of an antagonist and vice versa in the land of war.109

5. The damaged property should be qualified to be guaranteed. Therefore, there is no guarantee on the part of the owner of an animal if it damages the property of others unless the owner is the one who caused the damage and neglects to control it.110

105 Al-Kaafee, 2/130. 106 Badaa'i' As-Sanaa'i', 10/75-76; Majma' Adh-Dhamaanaat, pp. 130-132; Liability in

Islamic Jurisprudence, Sheikh Alee Al-Khafeef, 1/60; Theory of Liability, Az-Zuhailee, p. 57 and Juristic Rules and Controls in Financial Liability, Alee Al-Haajiree, 1/86.

107 Ibid. 108 Ibid. 109 Ibid. 110 Ibid.


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Guarantee does not require the guarantor to be of legal age, sane and informed because guarantee of properties is a type of situational obligation rather than an injunction.111

6. The damage should be an established one and permanent. No guarantee may be given for the mere aggression. For example, if someone throws a glass to another and the glass remains intact, the thrower is not liable for anything because no damage has taken place. Moreover, no guarantee may be given if the damage takes place but does not continue and the damaged property returns to its original condition before the damage; e.g. a disease that is treated or a tooth that appears again after it is extracted.112

It is not a condition to know that the damaged property is owned by someone else. For example, if one damages a property thinking it to be his own but finds out later on that it is owned by another person, he is liable for the damage because damage is an actual act that is not subject to knowledge. However, if he deliberately damages another person's property, he is then a sinner and liable for the damage because damage by mistake is not punished according to Sharee'AH113

Section Three: Reasons of Liability

Jurists have mentioned several reasons that call for liability in different parts of their books. However, they have differed as to how to divide them. Some of them state that they are four: possession, aggression, cause and condition according to Al-Izz bin Abdus-Salaam114 (d. 660 AH) and Al-Hisnee (d. 829 AH).115

Al-Kasaanee speaks about the reasons of liability related to damage, usurpation, contract and deception.116

111 Al-Furooq by Al-Qaraafee, 1/64 and Juristic Rules and Controls in Financial

Guarantee, 1/88. 112 Liability in Islamic Jurisprudence, Sheikh Alee Al-Khafeef, 1/46; Theory of Liability,

Az-Zuhailee, p. 60 and Juristic Rules and Controls in Financial Liability, 1/88. 113 Badaa'i' As-Sanaa'i', 10/78. 114 Qawaa'id Al-Ahkaam, 2/265. 115 Al-Qawaa'id, 3/420. 116 Badaa'i' As-Sanaa'i', 9/34, 35, 70, 71 and 157 and Al-Mabsoot, 26/35.


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Ibn Rajab speaks about three reasons of liability: contract, possession and damage.117 However, in the following pages, he discusses the cases that result in liability justifying some of them by impediment118 and others by deception.119

Al-Zarkashee (d. 794 AH)120 and As-Suyootee, (d. 911 AH)121 mention four reasons: contract, damage, possession and impediment.

Al-Ghazaalee (d. 505 AH), Ibn Rushd (d. 595 AH) and Al-Qaraafee mention three reasons: loss as a result of an action, cause or aggression.

The reason for this difference is due to the fact that they have not discussed this topic in a special part, namely the broad meaning of liability, in which they tackle its reasons, pillars, types and provisions. Rather, they have discussed it as part of other related issues.

Given the above reasons, the following can be noted: 1. These reasons touch on liability in general: the liability for

something and assuming the consequence of its damage.122 They are not limited to the specific meaning: giving something equal or its value.

2. These reasons are not contradictory, rather they are complementary. Therefore, it can be said that the reasons of liability are generally four as follows:

a. Contract, b. Possession, c. Damage, and d. Deception. As the present paper focuses on deception, I will discuss the other

three reasons in brief: 1. Contract: The general meaning of contract is: "every act resulting in a legal

ruling whether it is done by a single party like wills, divorce, charity, endowment and commission or by two parties like sale and lease."123

117 Al-Qawaa'id, p. 218. 118 Ibid, p. 232 and following pages. 119 Ibid, p. 232 and following pages. 120 Al-Manthoor, 2/322-323. 121 Al-Ashbaah wan Nadhaa'ir, p. 587. 122 Evaluation in Islamic Jurisprudence, Muhammad Al-Khudhair, p. 85.


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The contract is a reason that calls for liability and guarantee124 because it includes special provisions binding on both parties or the liable party.

Some contracts imply liability and hence such liability is a consequential effect resulting from them such as the guarantee contract which is joining the dhimma of the guarantor to that of the guaranteed, in which case both of them become liable for the right.125 This entails that the guarantor becomes responsible on behalf of the guaranteed for the property subject of guarantee, and hence he becomes liable as much as the guaranteed is so.126

Some other contracts are meant to execute transactions other than guarantee but guarantee is part of them because it is a consequence of them. The sale contract, for example, is about delivery of the commodity to the buyer and the price to the seller provided that both parts of the contract are free from any defect and are not entitled to other than the parties who are entitled to them. If any breach of the above conditions takes place, the breaching party is held liable under the contract. The same applies to salam and lease contracts.127

Yet some other contracts are meant to execute transactions other than liability but liability is a consequence of them because they include a valid condition which the two contracting parties or either of them stipulate or the said condition is implied in the contract according to norms. Whenever either contracting party breaches any of these conditions, he becomes liable for the guarantee. Hence, the contract becomes the reason calling for liability.128

The grounds for this obligation and responsibility are the general meaning of the verses calling for fulfilling promises and conditions. Allah says, "O you who believe! Fulfill your promises."129 He also says,

123 Ownership and Theory of Contract in the Islamic Sharee'ah, Muhammad Abu Zahrah,

p. 175. 124 Al-Ashbaah wan-Nadhaa'ir by Ibn Nujaim, pp. 127 and 291; Al-Manthoor by Az-

Zarkashee, 2/322 and Theory of Liability, Az-Zuhailee, pp. 63-65. 125 Fathul Qadeer, 6/283; Mughnee Al-Muhtaaj, 2/198 and Al-Mughnee, 7/71. 126 Liability in Islamic Jurisprudence, Alee Al-Khafeef, 1/16. 127 Liability in Islamic Jurisprudence, 1/16 and Theory of Liability, Az-Zuhailee, p. 63 128 Ibid. 129 Surat Al-Maa'idah: 1.


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"Fulfill your promises for promises are accounted for."130 The Prophet (peace and blessings be upon him) said, "Muslims should fulfill their conditions unless it is a condition that turns a prohibited thing to a lawful one or a lawful thing to a prohibited one."131

2. Possession: Having something under one's possession means that he can dispose

with it.132 Therefore, possession generally entails liability. Types of possession are three:

1. A person trusted to have custody of the property like depositors, brokers, musaaqah, guardians and the like. The persons acting in this capacity do not guarantee the property in their custody unless they transgress or neglect it.

2. A person having permission from the owner to have custody of the property under a guarantee contract such as the possession of the sold item by the buyer before it is delivered, whether the sale is valid or invalid, the borrower of kind items after receiving them, the holder of the purchase advance payment and the like.

3. A person having possession of the property without the permission of the owner or under a contract like the usurper, the thief and the like.

The possession in the last two types entails guarantee; it guarantees the property if it is damaged while in the custody of the possessor for any reason whatsoever even by a natural calamity.133

3. Damage: It is turning something useful into something useless as judged by

public norms.134 This is one of the reasons that make the person

130 Surat Al-Israa': 34. 131 Reported by At-Tirmidhee, Book of Rulings, 3/634-635, # 1352; Ad-Daraqutnee, 3/27,

Al-Haakim in Al-Mustadrak, 4/113 and Al-Baihaqee in As-Sunan Al-Kubraa, 6/97. At-Tirmidhee said, "It is a good and authentic hadeeth." In Al-Qawaa'id An-Nuraaniyah, p. 220, Ibn Taymiyah said, "These chains of transmitters, though some of them are weak, strength each other." In Irwaa' Al-Ghaleel, 5/142-146, Al-Albaanee considers it authentic.

132 Tahdheeb Al-Lughah by Al-Azharee, 14/239; Mukhtaar As-Sihaah, p. 742 and Theory of Liability, Az-Zuhailee, p. 65.

133 Al-Furooq, Al-Qaraafee, 2/27; Al-Wajeez, Al-Ghazaalee, p. 232 and 234; Theory of Liability, Az-Zuhailee, pp. 65-66 and Theory of Liability, Fawzee Faidhullah, p. 67.

134 Badaa'i' As-Sanaa'i', 7/164.


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responsible for it liable to pay the guarantee135 because it includes aggression and harm, both of which are forbidden.

Damage might occur as a result of direct action or indirect cause. Damage by direct action is the one that occurs when the tool used in

damaging the property comes in contact with the property subject of damage.136 Therefore, the person who commits it is called a direct actor.137

However, damage by indirect cause is committed by an act on something that usually leads to the damage of another thing.138 This is the action that usually results in the damage of the property without the interference of something that may be associated with the said damage.139

Section Four: General Meaning of the Rule

Based on the above discussion, it becomes clear that the rule means that the deceiver assumes the responsibility for and the consequence of the damage he causes to the property of another person with the assumption that he has the right to do so or to take an action that causes the damage of a property owned by him or by another person or leads to acceptance by the deceived because he is in a position that makes him liable to guarantee the damaged property which would not be the case had he not been in that position as a result of deception.

Three cases apply here: Example of the First Case: An aggressor who possesses a sheep and

asks someone to slaughter it to utilize its flesh. The latter obeys him thinking that the aggressor is the owner of the sheep but later on finds out that he has usurped it. In this case, the person ordered to slaughter the sheep who does so because he believed that it was his right based on the order of the possessor and because he directly acted on damaging

135 Badaa'i' As-Sanaa'i', 7/164; Tarteeb Al-Furooq, Al-Baqooree, 4/188; Al-Manthoor, 2/322

and Tuhfat Ahl At-Talab fee Ikhtisaar Qawaa'id Ibn Rajaab, Ibn Sa'dee, p. 105. 136 Badaa'i' As-Sanaa'i', 7/165. 137 Majallat Al-Ahkaam Al-Adliyah, p. 61, article 887. 138 Badaa'i' As-Sanaa'i', 7/165. 139 Majallat Al-Ahkaam Al-Adliyah, p. 430, article 1377.


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this sheep is held liable for it but he may get compensation from the possessor because he was deceived by him.140

Example of the Second Case: Someone may hire some workers to build a wall in the vicinity of his house. The wall may, after completion, fall on an animal owned by some other person and kills it. However, it may be found later on that the person who ordered building the wall did not own the house or the vicinity which belonged to the public road and that the workers were deceived. The damage caused as a result of the fall of the wall which the workers built upon the orders of a person they thought to have the right to give such orders and the said damage was caused to a property not owned by the deceiver. In this case, the workers are liable to pay for the damage because the damage was caused by their direct action but they may charge the person who ordered them to pay the loss they incurred because they are deceived by them.

Another form of this case is when someone buys from another one a house which needs to be renovated and the buyer renovates the house. However, it is found out later on that the seller usurped the house. In this case, the buyer spent the money as a result of deception. If He spends the money believing that the seller is the owner of the house and finds out that he has spent his money in the renovation of a house which he does not own because he was deceived, the deceiving seller shall assume the liability for the money spent for this renovation.141

Example of the Third Case: Someone may deposit an amount of money with another one and the said money is damaged while in the custody of the latter. However, it appeared later on that the money was not owned by the depositor and that the person in whose custody the money was deposited was deceived in accepting to take custody of the said money as a result of thinking that the depositor was the owner of

140 Liability in Islamic Jurisprudence, Alee Al-Khafeef, 1/202. This is according to the

Hanafites. However, the Shaafi'ites and the known opinion of the Hanbalites opine that the usurper (deceiver) is the one held liable in the first instance without claiming the loss from the slaughterer. See Al-Manthoor, 1/135; Al-Ashbaah wan-Nadhaa'ir, As-Suyootee, p. 298 and Al-Qawaa'id, Ibn Rajab, p. 224.

141 Majmaa' Adh-Dhamaanaat, p. 454 and Adh-Dhamaan by Alee Al-Khafeef, p. 224.


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the money. Therefore, the deceiver is held liable for the damaged money put in the custody of the trustee because he deceived him.142

Topic Two: Jurists' Expressions of the Rule

Jurists expressed the rule in different ways though the meanings they expressed are one and the same. The exact vocabularies of the rule "Al-Ghaar Dhaamin" are expressed by Sheikhul Islam Ibn Taymiyah: "If the leased or mortgaged property or the like is sold with a right in it belonging to other than the seller and he knows the defect but conceals it, it should be said that the seller has no right to claim for the invalidity of the sale because telling about the defect is mandatory on his part according to the Sunnah: 'It is the duty of the one who knows it to divulge it143 for concealing it is a deception and the deceiving party is liable."144

I will cite here some of the statements of jurists on this rule according to the order of the four school of jurisprudence:

1. Muhammad bin Al-Hassan Ash-Shaibaanee (d. 189 AH) writes, "If the lessee guarantees the value, the lessee shall charge the value to the leaser because he was deceived by him and the deceived has the right to charge the value subject of deception to the deceiver."145

2. Al-Sarakhsee (d. 483 AH) writes, "If someone brings a slave to the market place and says, 'This is my slave, so trade with him for I have given him permission to do so.' Therefore, if someone trades with him and the slave becomes indebted to him but he knows later on that he is a free man or has become the property of another one, those whom he had asked to trade with him have the right to the least of his value along with the debt that belongs to those he ordered him to trade with them because his act was a type of deception. His request for them to trade with him is a clear statement that he puts his money under their disposal

142 Haashiyat Ibn Abideen, 5/152; Majmaa' Adh-Dhamaanaat, p. 454 and Adh-Dhamaan by

Alee Al-Khafeef, p. 202. 143 Reported by Ibn Maajah, 2/755, # 2246; Al-Haakim, 2/10; Al-Baihaqee, 5/320. The

hadeeth is labeled as authentic by Al-Haakim, Adh-Dhahabee, Al-Mundhiree and Al-Albaanee. See Irwaa' Al-Ghaleel, 5/165.

144 Al-Fataawaa Al-Kubraa, 4/379 and Al-Ikhtiyaaraat Al-Fiqhiyah, Al-Ba'lee, p. 158. 145 Sharh As-Siyar Al-Kabeer, 5/3119.


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to pay their debts if he becomes indebted as the requestor is equal to the guarantor. Hence, if deception occurs, the deceived may charge the deceiver with the amount subject of deception or guarantee."146

He also says, "If he requests someone to trade with him in silk but he trades with him in silk and other commodities, it is the same and thus he is liable to him for he has deceived him."147

3. He ruled on a man who borrows a piece of land to build a house or plant palm trees and the owner permits him to do so for a period of twenty years or so but he forces him to quit prematurely, the owner shall guarantee for the borrower the value of his house or trees. The evidence to this is that the lender has deceived the borrower with regard to time because he declared that he would leave the piece of land in his hand and permitted him to build for the period he specified. Therefore, if he fails to keep his promise, he is then a deceiver and the deceived has the right to hold the deceiver liable."148

4. To the same question, Al-Kasaanee replies, "If the property is borrowed for a specific period and the lender forces the borrower to quit before the specified time, the borrower has the option either to charge the value of the trees or the building to the lender because the borrower has been deceived by the lender. The owner of the land then owns the building or the trees as soon as he pays their value."149

5. He adds that deception in contracts entails the obligation of guarantee."150

6. Al-Babartee writes, "Deception in exchanged commodities which are required to be free from defects results in liability as a measure to protect oneself against deception as much as possible."151

7. Ash-Shaafi'ee writes, "Every damage caused by the deceiver to the deceived shall be the liability of the deceiver."152

146 Al-Mabsoot, 26/35. 147 Ibid, 26/37. 148 Ibid, 7/133-134. 149 Badaa'i' As-Sanaa'i', 7/477-378. 150 Ibid, 8/49. 151 Al-Inaayah, 7/47. A close vocabulary is used by Ibn Al-Humaam in Fathul Qadeer,

7/47 and Naadhir Zaadah in Tarteeb Al-La'aalee, 1/536, 2/812 and 1062. 152 Al-Um, 6/252.


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8. Answering a question on a slave girl someone was deceived about, he writes, "If the owner wishes to keep her, he can do so; however, if he wishes to part with her and she has given birth to some children, these children are considered free and he has to pay for their value the time they are born. The amount he pays for the children is charged to the person who deceived him, either the person who gave the girl in marriage or the girl herself if she is the one who deceived him if she had already been set free."153

9. Imaam Al-Haramain Al-Juwainee writes, "If the usurper offers the usurped food to someone to eat it and the one who is offered the food knows that the food has been usurped, he is undoubtedly liable for the value of the food. However, if he does not know that the food is usurped and thinks that it is owned by the usurper, two opinions about the liability for the value of the food are expressed: 1) it is the responsibility of the one who ate the food because he has a free will and as long as he is the one who caused the direct damage, he is the one liable to pay for it; 2) it is the responsibility of the usurper who offered the food because he is the utter deceiver and he is the one who should be held liable for the value of the food for he is the deceiver."154

10. Al-Ghazaalee writes, "If he rents an animal to carry ten saa's on its back but he carries eleven saa's on its back and the animal dies as a result of this transgression, he is liable to pay for it because he is a usurper in this case. If he delivers eleven saa's to the owner of the animal and the latter thinks it to be ten and carries it on the back of the animal and the animal dies as a result of a different cause, he is not liable for any guarantee. However, if the animal dies because of the load, the apparent opinion on this issue is that the deceiver is required to pay for it even if the act of loading is made by the owner of the animal."155

11. Imaam Maalik (d. 179 AH) writes, "If you hire someone to carry loads of oil or food on his animal to a specified place and the animal stumbles, the bottles are broken and the oil is split or the food is damaged or if the ropes are cut and the food falls down and is damaged,

153 Ibid, 5/86. 154 Nihaayat Al-Matlab, 7/377-378. 155 Al-Waseet, 4/191.


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the owner of the animal is not liable for anything unless he deceives about the stumbling habit of the animal or the weakness of the ropes to withstand the load, in which case he is to be held liable."156

12. In Al-Mudawanah we read, "He who hires an animal for grinding and ties it to the grinding machine and the animal breaks the grinder, the owner of the animal shall not be liable unless he deceives about its habits. Maalik is of the opinion that if someone leases an animal knowing it to be tending to stumble but he fails to tell the lessee that it is so and the lessee carries something on it and it stumbles and that thing is damaged, the owner of the animal shall be held liable for the damage.157

13. Ahmad (d. 241 AH) was asked about a man who married a woman and was bankrupt but the woman did not know that, should she claim for separation? He replied, "No, unless he had told her that he is rich and deceived her to make her accept him as a husband."158

14. Al-Khuraqee (334 AH), writes, "If he marries a slave girl thinking her to be a free woman and she gives birth to a child, the child is free and he has the right to claim for the dower from the one who deceived him."159

15. Ibn Qudaamah (d. 620 AH) writes, "If someone borrows something from another one and uses it, but some other person appears to be the owner of that thing, the owner has the right to claim for value of usage from either the borrower or the lender. If the borrower pays the value, he then may charge it to the lender because he has deceived him about using it free of charge."160

16. Sheikhul Islam Ibn Taymiyah rules with regard to someone who sells a property but another one appears to be the owner of the property thus: "If the buyer knows that, he is then a transgressor and should pay for the usufruct whether he uses it or not. However, if he does not know

156 At-Taaj wal Ikleel, 7/554. 157 Ibid, 7/555. 158 Kitaab Al-Masaa'il an Ahmad wa Ishaaq bin Rahawaih as narrated by Ishaaq bin Mansoor

Al-Kawsaj, 3/173. 159 Mukhtasar Al-Khuraqee with Al-Mughnee, 9/440. 160 Al-Mughnee, 7/354.


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that, the seller is the liable party. If the property is taken from the buyer, he has the right to claim for the price he paid for it to the seller."161

17. Ibn Al-Qayyim (d. 751 AH) writes, "Imaam Ahmad said, 'If a free man marries a slave girl he becomes a half-slave man and if a slave man marries a free woman he become a half-free man. The child of the slave girl married to this deceived man ought to become a slave for his/her master but as long as he married her believing that his children will be free and as the state of the child follows the belief of the husband, the child becomes free and hence the master loses him. The rule is that the one is entitled to be considered as much as the other. Moreover, the loss of the right of the one does not precede the loss of the right of the other. The Companions of the Prophet (peace and blessings be upon him) maintained both rights and gave consideration to both parties. They judged the children to be free though their mother is a slave because the husband consummated the marriage believing his children to be free. Had he thought they would be slaves, he would not have consummated the marriage. They also did not drop the right of the master, and hence judged that the husband should pay for the freedom of his children. Moreover, they set everything right. They ordered that they be freed for equal slaves. Finally, they enabled the deceived husband to claim for the money he paid for freeing the children from the deceiver because he paid it under the effect of deception. Justice requires that he who causes the damage of something belonging to someone else should pay for it. It is a damage by cause which is equal to damage by direct action with regard to liability."162

It is worthy to note that the statements of scholars on this rule are countless.

Topic Three: Scope and Conditions of Application of the Rule

This topic includes two sections as follows:

161 Majmoo' Al-Fataawaa, 29/389. 162 I'laam Al-Muwaqi'een, 2/46.


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Section One: Scope of Application

This rule relates to many issues; deception may be associated to contracts under the effect of which someone may enter into a contract that he thinks to be in his own interest or free from deception, but he finds later on that has been deceived and cheated and that the contract is contrary to what he thought it to be. Deception may also be associated with deeds such as convincing someone to travel along a certain road claiming it to be safer but robbers on the road take his money or convinced to do something considering it to be lawful or contains no risk or harm, but he finds later on that it is contrary to what he has been told and hence results in the damage of a certain property.163

Thus, the rule relates to the majority of transactions, be they compensation-based financial contracts like sale, lease and otherwise, compensation-based non financial contracts like marriage and the like, easement contracts like loans, attorney, sharing and the like, documentation contracts like mortgage and guarantee or donation contracts like gifts, charities, wills, endowments and the like.

It also relates to issues of ownership, usurpation and provisions and consequences associated with them as well as to issues of reconciliation for money, offenses, revocation of testimonies, judgments and judicial matters, fataawaas and otherwise. Schools of jurisprudence differ as to the establishment of some forms and cases of deception as will be discussed hereinafter.

Section Two: Conditions of Application of the Rule

Considering the different statements of jurists on the rule, it is noted that the rule cannot be applied without meeting certain conditions that should be fulfilled in order for the rule to be properly applied. These conditions include the following:

1. The deceived should have no knowledge of the damage that may result from deception. If the deceived knows of the damage, the right to

163 Liability in Islamic Jurisprudence, Alee Al-Khafeef, 1/201-202, Liability for Damaged

Properties, Sulaimaan Ahmad, pp. 82-83.


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hold the deceiver liable for the loss he incurs drops because his knowledge of the deception is evidence to his acceptance.164

2. The right of guarantee for the deceived is only established after the occurrence of the damage and the loss resulting from it. Therefore, the deceived has o right to claim for the loss he incurred from the deceiver as long as the damage has not taken place. This condition is applied in case the deceived is proved to be liable for the damage and who has the right then to claim for the loss he suffered from the deceiver according to the Hanafites. However, it is not applied if the deceiver is initially held liable according to the Shaafi'ites and a narration from Ahmad.165 This will be discussed in more detail hereinafter.

3. The deceived should not be able to avoid falling prey to deception. If he manages to avoid deception but he does not, his right to claim for the loss he incurred from the deceiver drops because he is knowingly defaulting.166

4. The deceiver should be the cause of damage in a way that the damage can be attributed to him such as when the deceived is in a state in which he thinks that the deceiver is truthful and when the act of damage is done by him as an ordinary and direct result of the deception caused by the deceiver. However, if the condition of the deceiver suggests that he is not truthful or trustworthy when heard, the deceived has no right to claim for the damage from the deceiver because he is not obliged to believe him. Hence, the deceived has deceived himself.167

5. The deceived should not act in a trespassing or negligent way. If he acts in this way, the act is ascribed to him because he is the one who does it while the deceiver is the one who causes it. The rule as to damage is that if the direct act and cause occur together, the direct act is charged with the responsibility for the damage. This is the opinion expressed by

164 Majma' Al-Anhur, 4/368; Hashiyat Ibn Abideen, 5/212; At-Taaj wal Ikleel, 7/313-334;

Rawdhat At-Taalibeen, 4/99; Al-Qawaa'id by Ibn Rajab, p. 424 and Majmoo' Al-Fataawaa by Ibn Taymiyah, 30/64.

165 Mataalib Ulee An-Nuhaa, 5/132. 166 Al-Mabsoot, 11/133 and Liability for Aggression in Islamic Jurisprudence,

Muhammad Siraaj, p. 258. 167 Liability in Islamic Jurisprudence, Alee Al-Khafeef, 1/206 and Liability for

Aggression in Islamic Jurisprudence, p. 260.


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Az-Zarkashee in Al-Manthoor168 and As-Syyootee in Al-Ashbaah wan- Nadhaa'ir.169 However, they exclude several forms, for example:

1. If someone usurps a sheep and requests a butcher, who does not know the situation, to slaughter it, the usurper is the one who is held liable for the damage.

2. If someone endows a farm for some people and its crops are given to them but turns out later on to be owned by another one, the endower shall be liable for the damage because he has deceived them.170

Ibn Nujaim (d. 970 AH) expressed this condition by a rule as follows: "If the direct actor and the causer combine, the direct actor shall be the liable one." He mentioned several examples of this rule including the following:

If someone tells another one that the woman he proposes for him to marry is free but appears after giving birth to be a slave, he is not liable for the damage. However, if her guardian or attorney tells the same and she appears to be a slave for another person, the deceived party shall pay the value of the born baby. The following forms are excluded from this rule:

1. If a person gives a knife to a child and it falls on the child's limbs and wounds him, he is then liable; and

2. If a man in a state of ihram shows another man a game to be hunted, the one who shows the game is the liable one.171

The scholars who laid down the provisions of Majallat Al-Ahkaam Al-Adlliyah state the following rule: "The act shall be attached to the doer rather than the one who ordered him to act unless the doer is under the state of duress."172 The scholars who commented on the journal stipulated some conditions for this rule to be applicable including the following:

1. The ordered party (doer) should be of legal age and sane. If he is a boy or insane, the damage should be paid for from his money. However,

168 1/133. 169 P. 297. 170 Al-Manthoor, 1/133 and Al-Ashbaah wan Nadhaa'ir, p. 298. 171 Al-Ashbaah wan Nadhaa'ir, Ibn Nujaim, p. 163. 172 Majallat Al-Ahkaam Al-Adlliyah, p. 98, article 89.


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the guardian of the boy may claim for the loss incurred by the boy from the person who ordered him.

2. The requestor should be of legal and sane. However, if he is a boy or insane, the requested party may not claim for the damage, rather the requested party is liable for the damage.

3. The requestor should not compel173 the doer. If so, the requestor, rather than the requested party, shall be liable for the damage as an exception to the rule.

4. The doer should know that the request is invalid. If he believes that the request is valid, the doer shall be liable but he has the right to claim for the loss he incurred from the requestor. For example, if someone tells another one to break his wall and he does so believing that the wall belongs to the requestor, the doer is the liable one but he has the right to claim the money he paid from the requestor because the requestor has deceived him unless the requestor was at that time inhabiting the house, it is then a case of deception because living at the house is a proof that was cheating the doer that the house is his, and hence the deceiving requestor is the liable one.

5. The act requested to be done should not be in the interest of the requestor. If it is so, it is like a power of attorney under which the requested party acts on behalf of the requestor and the effect of his action passes to him. If someone orders him to pay a debt due from the requestor, to spend for him or to build his house, the requested party will then be an attorney who may claim for what he has paid or spent.174

Sheikh Mustafa Az-Zarqaa comments that the rule should read: "The act should be attached to the doer rather than the requestor unless the former is compelled or deceived."175

173 To compel someone to do something unlawful and to threaten him to harm his life or

any of his limbs like breaking his hand or cutting off his leg or any other type of harm, under which state acceptance and will are no longer valid.

174 Al-Fawaa'id Az-Zayniyah by Ibn Nujaim, p. 96; Al-Ashbaah wan Nadhaa'ir, p. 283; Majma' Adh-Dhamanaat, pp. 157-158; Durar Al-Hukkaam, 1/90/95-96; Sharh Al-Qawaa'id Al-Fiqhiyah by Az-Zarkaa, p. 443; Al-Madkhal Al-Fiqhee Al-Aam, Mustafa Az-Zarkaa, 2/1043-1044 and Juristic Rules and Controls on Financial Guarantee by Hamad Al-Haajiree, 1/422 and following pages.

175 Al-Madkhal Al-Fiqhee Al-Aam, 2/1044.


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Ibn Rajab expresses this condition in two important rules which do not include sub-rules. These rules are as follows:

1st Rule: "If the damage to properties and lives of human beings is effected by a direct act and a cause, the doer rather than the causer is liable unless the act is based on and arising from the cause, whether it is done under duress or not. However, if the act is done without aggression, the doer is alone liable but if there is aggression, the direct act and the cause are jointly liable."176

The above rule includes three sub-rules as follows: i. If the act and cause combine together but the act is not based on or

arising from the cause, the liability is associated with the act but not the cause.

Examples of this rule are: 1. If someone drills a well by way of aggression and pushes someone

else or a property into it and the latter dies or the property is damaged, the doer is liable because the act is not based on or arising from the cause, namely the act of drilling.

2. If someone gives a weapon to another one he knows not to be naturally disposed to killing but the latter kills another person, the doer is liable but not the causer who gave him the weapon because the act, i.e. killing, is not based on or arising from the cause, i.e. giving him the weapon. Therefore, the liability is associated with the act rather than the cause.

ii. If both the act and cause combine together and the act is based on or arising from the cause and the act is not triggered by aggression, the liability is associated with the cause but not the act.

Examples of this rule are: 1. If a person offers food he knows to be poisoned to someone who

does not know that the food is poisoned and the latter eats it and as a result dies, the causer, namely the one who offers the food, is liable but not the doer, namely the one who ate the food. The murder is based on and arising from the cause, namely offering the poisoned food, but not on the act of eating as long as the eater did not transgress. Therefore, the liability is associated with the cause but not the act.

176 Al-Qawaa'id by Ibn Rajab, p. 332.


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2. If the ruler kills someone based on the testimonies of some persons but the witnesses admit that they deliberately lied in their testimonies, the witnesses, who caused the death of that person, are responsible for the killing rather than the one who executed the killing (the ruler) because the act is based on and arising from the cause and because the doer did not trespass the limits. Therefore, the liability is associated with the cause but not the act.

iii. If both the cause and the act combine and the act is based on and arising from the cause and the doer trespasses the limits, the liability is then joint between the cause and the act.

Example: If someone compels another one to kill a person of sacred life, both of them assume joint responsibility because the act (murder) is based on and arising from the cause (compulsion) and the doer has trespassed the limits for compulsion does not permit murder. Hence, the liability is tied to the act and the cause together.177

2nd Rule: A person who damages the property of someone thinking it to be his own or acts on the said property thinking that he has authority over it but finds out that he is wrong. If his presumption is based on an apparent act caused by someone else but the one who caused such thinking finds himself to be wrong or admits to have deliberately acted as such, the person who causes it is the liable one. However, if he relies on his absolute discretion such as when one gives a property in his custody to someone whom he thinks to be the owner of that property or to whom the money is payable or even permissible to pay to him or if he pays the money he is ought to pay as the right of Allah to whom he thinks to be entitled to it but finds out later on that he is wrong, two opinions are held as to considering him liable or not. If the document is unreliable and nothing appears to the contrary such as a property judged for someone but the said judgment is cancelled later on, the one who commits the act of damage is liable. Otherwise, no liability is assumed.178 This rule includes four sub-rules as follows:

177 Al-Qawaa'id, p. 305, Sharh Tuhafat Ahl At-Talaab fee Tajreed Usool Qawaa'id Ibn Rajab, p.

404 and following pages. 178 Al-Qawaa'id, p. 305.


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i. If someone damages the property of another one thinking it to be his own relying on an apparent cause but finds out later on that such act of reliance is invalid, the causer is considered liable.

Examples of this rule include the following: 1. If two persons testify to the death of someone but after dividing his

estate, such testimony is found to be false when the said person appears to be alive, there is no liability on the part of the heirs while the cause (the witnesses) are held liable because they deceived the heirs by their testimony.

Judge Abu Ya'laa (d. 458 AH) rules that there is a likely reason to hold the heirs liable but the money they repay to the heritor may be claimed from the witnesses because of their deception.

2. If the judge decides to stone a man based on the testimonies of four persons that he committed adultery but he is found out later on to have a cut penis or sexually incompetent, the judge is held liable but not the witnesses. The reason for holding him liable is that he has neglected checking the condition of the man accused of adultery.

3. If the judge decides that a certain property belongs to someone based on the testimony of some witnesses but they decline their testimonies and admit to have offered a false testimony by mistake or deliberately, they are held liable because they have admitted their perjury. However, the decision of the judge is not repudiated by mere declination of testimony and the person in whose favour it is given shall not be held liable for anything.

ii. If someone damages the property of another person thinking it to be his own property based on his absolute discretion, he is held liable. However, some scholars opine that he should not be held liable and that the liable one is the person in whose custody the property is damaged.

Examples include the following: 1. If a dress maker gives a dress to someone other than its owner by

mistake and the person to whom the dress is given cuts or uses it thinking it to be his own, the causer (the dress maker) is held liable because he is considered a deceiver as reported from Ahmad. His apparent opinion is that the cutter or the user is not held liable because he is deceived.


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2. If a person gives a foundling property to a person who describes it to be his own but another one gives proof that it is his own, he is held liable for the loss. However, if he gives the foundling property upon a decision by a judge, he is not held liable. Yet, if he gives it to the one who claims it to be his own based on no court judgment, two opinions are given in this regard: 1) He is not liable because he did not neglect according to the established opinion and 2) he is held liable because he is the doer, but he may hold the one who described the property liable for the damage unless the latter proves his ownership of the said property.

iii. If someone disposes of the property of another one thinking that he has authority over it based on a judgment revoking an unreliable document and nothing to the contrary appears, the person who causes the damage shall be liable.

For example, if a judgment is issued in favour of a person with regard to a property based on the testimonies of witnesses but the said witnesses prove to be of no legal capacity and the judgment is revoked because it does not fulfill the conditions on which it is based, the person in whose favour the judgment is issued and who damages the property shall be held liable because the judgment on which he relied to damage the property is invalid.

iv. If a person disposes of the property of someone thinking that he has authority over it based on a judgment supported by an unreliable document and nothing to the contrary appears, he shall not be held liable for the damage of the property.

Examples of this rule include the following: If a judgment is issued in favour of a person with regard to a property

based on the testimonies of witnesses, and after receiving it, the witnesses decline their testimonies but nothing to the contrary of what they initially testified appears, the judgment shall not be revoked because the validity of the decline of the witnesses is doubtful, and hence the person (in whose favour the judgment is issued) shall not be held liable for the damage because he has relied on the judgment but the


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witnesses shall be held liable because they were the cause of the damage by granting the said person control over the property.179

Concerning the deceiver's knowledge of his act of deception, some scholars stipulate that the deceiver should have a deliberate intention to deceive. They also stipulate that the deceiver should know the harm expected from his act.180 Imaam Maalik is reported to have ruled that if someone leases an animal knowing it to be tending to stumble but he fails to tell the lessee that it is so and the lessee carries something on it and it stumbles and that thing is damaged, the owner of the animal shall be held liable for the damage.181

The same ruling is given by Sheikhul Islam Ibn Taymiyah thus: "If a leased or mortgaged property belonging to other than the seller is sold by him and the seller knows that but fails to inform the buyer of this fact, the seller has no right to claim for the invalidity of the sale because it is initially his duty to inform the buyer of the fact."182

However, the majority of scholars183 do not stipulate an intention of deception on the part of the deceiver for he is liable even if he does not intend to deceive. He may himself be deceived, ignorant or doubting. Deception is a cause and the causer is held liable without considering the intention. However, if deception is combined with intention, the deceiver is then a sinner and liable for the damage. Yet, if he does not intend to deceive, he is held liable but is not a sinner. The opinions reported from Maalik and Ibn Taymiyah, and Allah knows best, agree with that of the majority of scholars. However, in some transactions, knowledge of defects has its effect with regard to ruling the act as a type of deception. If such knowledge of the defect has no effect, it is not

179 Al-Qawaa'id, p. 232 and following pages, Al-Ikhtiyaaraat Al-Fiqhiyah by Al-Ba'lee, p.

347, Al-Insaaf by Al-Mirdaawee, 6/346, 11/318 and 12/97, edited by Al-Fiqee, and Sharh Tuhfat Ahl At-Talab, p. 321 and following pages.

180 Al-Ashbaah wan Nadhaa'ir by Ibn Nujaim, p. 340; Durar Al-Hukkaam, 1/183; Sharh Al-Qawaa'id Al-Fiqhiyya by Az-Zarkaa, p. 387 and Liability for Aggression in Islamic Jurisprudence, Muhammad Ahmad Siraaj, p. 260.

181 At-Taaj wal Ikleel, 1/555 and 7/554. 182 Al-Fataawaa Al-Kubraa, 4/379 and Al-Ikhtiyaaraat Al-Fiqhiyah by Al-Ba'lee, p. 185. 183 Majma' Al-Anhur, 2/256; Al-Qawaaneen Al-Fiqhiyya, p. 218; Al-Muwafaqaat, 1/197 and

211 and following pages; Qawaa'id Al-Ahkaam, 2/133; Mughnee Al-Muhtaaj, 2/276; Al-Insaaf, 6/216 and Kashaaf Al-Qinaa', 4/117.


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stipulated that the deceiver should have it. Ash-Shaafi'ee states, "Every deceiver who causes harm to the deceived should be held liable for the damage. Whether the guardian knows that the woman is insane or not, he is a deceiver. Someone might say, 'This might be unknown to a stranger.' The reply is, 'It is even so for the father.' Suppose there is a spot of leprosy under her clothes, would it not be unknown for her father. The deceiver is liable whether he knows about the defect or does not know about it."184

Topic Four: Valid Application of the Rule and Supporting Proofs

Deception is given consideration in two respects: 1. Injunctive Provision (Hukum Taklifee): This is the ruling on

deception in terms of prohibition and permissibility. There is no single doubt that deception is prohibited according to the consensus of scholars if it is intended by the deceiver based on the same proofs ruling that cheating, concealment and fraud are all prohibited.

Proofs to this effect include the following: 1. Allah says, "O you who believe! Do not eat up your property among

you unrightfully unless it is a trade among you with your consent."185 Argumentation: Allah has forbidden eating the property of people

unrightfully, rather exchange of property should be based on transactions executed with their knowledge and acceptance. There is no doubt that deception is part of eating up the property of others without their consent.

Allah has made consent the basis of considering an act permissible or forbidden. Therefore, if someone deceives another one in any commercial transaction or otherwise, he has then caused defect to the intention and consent of the deceived and taken something which is not his own right.186

2. Abu Huraira (may Allah be pleased with him) narrated that the Prophet (peace and blessings be upon him) passed by a pile of food

184 Al-Um, 6/252 and 253. 185 Al-Baqara: 88 186 Tafseer Al-Manaar by Muhammad Rasheed Ridhaa, 1/366.


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(wheat). He put his hand into it and his fingers came out wet. He said, 'What is this?' The owner of the food replied, 'O Messenger of Allah! It just rained over it.' He said, "You should have made the wet part appear over the pile of food so that people can see it.' He who cheats does not belong to me."187

3. Uqbah bin Aamir (may Allah be pleased with him) said, "I heard the Prophet (peace and blessings be upon him) saying, 'A Muslim is the brother of other Muslims, and it is not permissible for a Muslim to sell something having a defect to his brother unless he shows it to him.'"188

4. Qays bin Sa'd bin Ubaadah said, "I heard the Prophet (peace and blessings be upon him) saying, 'Deception [leads] to dwelling in Hellfire.'"189

Argumentation: The above hadeeths are clear proofs that deception and concealment are forbidden and that the one who commits them is threatened to be a dweller in Hellfire.190

2. Situational Provision (Hukum Wadh'ee): This aspect has two elements:

1st Element: It is related to the ruling on a contract that includes a deception of concealment in terms of validity or invalidity and that gives the deceived the right of option. This case is not included in the scope of the present study.

2nd Element: It is related to the deception as a reason for initial liability of the deceiver or the recourse the deceived has against the deceiver for the harm or liability he has incurred. This is the meaning that the rule speaks about.

The Hanafites, Maalikites, Shaafi'ites and Hanbalites, as already stated, agree that deception brings about liability though they differ with regard to some of its forms and conditions.

The basis of the legitimate application of liability resulting from deception is the Prophet's statement: "Let there be no harm or mutual harm."191

187 Reported by Muslim in his Saheeh, Book of Belief, part on the Prophet's statement: "He

who cheats us is not one of us.", 1/138, # 102. 188 Already verified. 189 Reported by Al-Bukharee, 4/41. 190 Cheating and its Effect in Contracts, Al-Silmee, 1/54.


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Argumentation: If someone damages the property of another one or the latter incurs a loss because of the act of deception by the deceiver, it is a harm that he incurs beyond his control. Such harm should be alleviated by giving the deceived the right to claim for the loss he incurs from the deceiver. The deceiver is liable for the harm or the damage of property because such harm or damage is caused by his deception.192

Other proofs include the following: It is reported that Umar bin Al-Khattaab (may Allah be pleased with

him) said, "If a man marries a woman and consummates the marriage but finds her to have leprosy, to be insane or to have vertigo, she has the right to the dower as a compensation for having sexual intercourse with

191 Reported by Ibn Maajah in his Sunan, Book of Provisions, part on who builds within

his property something that harms his neighbour, 2/784, #2340; Ahmad in his Musnad, 5/327; Abdullah bin Ahmad in Zawaa'id Al-Musnad, 5/326-327, through Ishaaq bin Yahya bin Ubaadah bin As-Saamit that the Prophet (peace and blessings be upon him ruled: "There should be no harm or mutual harm." In Majma' Az-Zawaa'id, 4/55, Al-Haitamee said, "Ishaaq did not meet with UbaadAH" It is also reported by Ibn Maajah in his Sunan, 2/784, # 2341, Ahmad in his Musnad, 1/313 and At-Tabaraanee in Al-Mu'jam Al-Kabeer, 1/53 through Jaabir Al-Ja'fee from Ikrimah on the authority of Ibn Abbaass as a marfoo' hadeeth with the wording: "Let there be no harm or mutual harm." Moreover, it is reported by Abu Ya'laa in his Musnad, 4/397, # 5520 and Ad-Daraqutnee in his Sunan, 4/228 through Dawood Al-Hussain from Ikrimah with the same wording. It is also reported by Ad-Daraqutnee in his Sunan, 3/427-428 and Al-Haakim in Al-Mustadrak, 2/57-58; both rated it as a hadeeth of authentic chain of transmitters under Muslim's conditions but they did not verify it. It is also reported by Al-Baihaqee in As-Sunan Al-Kubraa, 6/69-70 through Ad-Darawardee from Amr bin Yahya Al-Maazinee from his father on the authority of Abu Sa'eed Al-Khudree as a marfoo' hadeeth: "Let there be no harm or mutual harm." The same hadeeth is reported by others on the authority of Aishah, Abu Hurairah, Tha'labah bin Abi Maalik, Waasi' bin Hibbaan (may Allah be pleased with them). See Nasb Ar-Raayah, 4/386. In Faydh Al-Qadeer, 6/432, Al-Mannaawee says, "The hadeeth is rated as good by An-Nawawee in his book Al-Arba'een An-NawawiyAH" He adds, "It is reported by Maalik as a mursal hadeeth in different narrations that strengthen each other." Al-Alaa'ee says, "The narrations of the hadeeth raise it to the degree of authenticity or authoritative goodness." The same is stated by Al-Albaanee in Irwaa' Al-Ghaleel, 413. See Also Jaami' Al-Uloom wal Hikam by Ibn Rajab, p. 207 and following pages.

192 Al-Mabsoot, 11/133-134; Al-Mughnee by Ibn Qudaamah, 9/446-447 and Liability for Damages in Islamic Jurisprudence by Sulaimaan Al-Ahmad, p. 79.


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her and he has the right to claim against the one who deceived him about her."193

Argumentation: Umar (may Allah be pleased with him) considered the dower as the right of the wife but he gave the husband the right to claim against the one who deceived him about her. This is a proof that it is the legitimate right of the deceived to claim against the deceiver for the loss he incurred or the thing damaged in his custody whether it is a matter of marriage or otherwise.

Ash-Shaafi'ee says, "The basis for giving the deceived the right to claim for the harm he sustained from the deceiver is that Umar bin Al-Khattaab (may Allah be pleased with him) said, 'If a man marries a woman and consummates the marriage but finds her to have leprosy, to be insane or to have vertigo, she has the right to the dower for having sexual intercourse with her and he has the right to claim against the one

193 Reported by Maalik in Al-Muwatta', 2/46; Ash-Shaafi'ee in Al-Um, 5/91, Al-Baihaqee

in As-Sunan Al-Kubraa, 7/215 and 235; Ma'rifat As-Sunan Wal Aathaar, 10/14145, Ibn Abu Shaibah in his Musanaf, 3/310; Abdur-Razzaak in his Musanaf, 6/244 through Saeed by Al-Musayab from Umar. Scholars differ as to whether Sa'eed bin Al-Musaib heard from Umar or not in two opinions: Some of them said he met him but he did not hear from him and some others said he saw him and heard from him. Though they differ on this, they agree that his narrations from Umar are reliable. Yahya bin Sa'eed Al-Ansaaree said, "Sa'eed bin Al-Musayab was called 'the narrator from Umar' because he was the best one who memorizes Umar's rulings." He added, "Whenever Abdullah bin Umar (may Allah be pleased with him) was asked about something for which he had no answer, he would say, 'Ask Sa'eed bin Al-Musayab for he sat with pious people.'" Maalik was asked if Sa'eed bin Al-Musayab saw Umar and he replied, "No, but he was born while Umar was alive. When he grew, he began studying Umar's life and rulings until he became versant in them as if he had seen him. I have been informed that Abdullah bin Umar used to ask Sa'eed bin Al-Musayab about the life and rulings of Umar." Ash-Shaafi'ee said, "Mursal hadeeths reported by Sa'eed bin Al-Musayab are good in our opinion." Ahmad bin Hanbal said, "Narrations by Sa'eed bin Al-Musayab from Umar are reliable in our opinion. He saw Umar and heard from him. If Sa'eed's narrations from Umar are not acceptable, whose narrations can then be acceptable?" Ibn Ma'een said, "Sa'eed bin Al-Musayab's mursal hadeeths are the most authentic ones." Yahya Al-Qattaan and Abu Haatim said, "A mursal hadeeth reported by Sa'eed bin Al-Musayab from Umar is equal to a connected hadeeth." See Jaami' At-Tahseel by Al-Alaa'ee, p. 185; Tahdheeb Al-Tahdheeb, 4/44; Al-Maraaseel by Ibn Abu Haatim, p. 71, Minhaaj As-Sunnah An-Nabawiyah by Ibn Taymiyah, 4/17 and Zaad Al-Ma'aadh, 5/138.


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who deceived him about her.' Therefore, the husband is obliged to pay his wife her dower for the consummation of the marriage which dower he may claim from the deceiver because the deceiver is the one who caused him to incur the dower. This also applies to every deceiver who may cause harm to the deceived with the result that he is held liable for the harm he causes to the deceived."194

However, Ibn Hazm (d. 456 AH) holds a different opinion that deception does not entail liability in all cases, be it a deception by word or by deed and be it a damage to a property or a harm to a life. He argues that the deceiver has not done the damage nor has he compelled the deceived to do it. It is the deceived who did it by his own free will.195

Ibn Hazm gives examples of deception after which he gives his opinion why they do not entail liability supported by justifications. He says, "If someone digs a hole, covers it and asks another one to walk and the latter walks on it knowing that there is a hole or not, the one who asked him to walk, the digger and the coverer, are not liable because they did not compel him to walk or directly act on harming him. He is the one who acted by his own free will. There is no difference between this and the one who deceives a person who asks him about the safety of a certain road and the deceiver tells him that that road is quite safe while he knows that the road is cut by a lion, a raging animal, dogs or robbers, and the one who asks about the condition of the road travels along that road but he is killed or his property is robbed. The same also applies to a person who saw a lion but another person told him that the lion is constrained and the former believed the latter and thus the lion killed him. The deceiver is not liable for the blood money or the damage of property because he did not do it himself or compel the other person to do it."196

It should be said that Ibn Hazm's opinion and argument are totally wrong because such arguments encourages some people to harm lives, damage properties and commit other criminal acts without being held liable for their acts. Anyone who wishes to kill a person or causes him or

194 Al-Um, 6/252-253. 195 Al-Muhallaa, 11/11-12. 196 Ibid, 11/11-12.


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his family some harm without assuming any responsibility can deceive him in this way and entraps him in a manner that may claim his life or damages his property while the criminal escapes the consequences of his act, be they related to retaliation or financial burdens. It is also contrary to the rules of the Islamic Sharee'ah which is revealed to protect secure lives and properties and which enjoins on those who transgress limits to receive due punishment for such transgression of rules. There is no doubt that deception is a type of transgression and aggression. In some forms, it leads to harm by cause. Justice requires that the deceiver be penalized for his act of deception for the Islamic Sharee'ah enjoins justice.

Ibn Al-Qayyim asserts, "They [Prophet's companions] enabled the deceived husband to claim for the money he paid from the deceiver because he paid it under the effect of deception. Justice requires that he who causes the damage of something belonging to someone else should pay for it. It is damaged by cause which is equal to damage by direct act as far as liability is conerned."197

Topic Five: Opinions of Jurists on the Cases to which the Rule Apply

Jurists differ as to the cases with regard to which the deceiver is held liable to pay for the loss incurred by the deceived as a result of his deception as follows:

I. The Hanafites: The Hanafites are of the opinion that the deceiver is not held liable for

the loss incurred by the deceiver except in four cases: 1. The act of deception relates to compensation-based contracts.198 If

someone sells another one a piece of land and the buyer builds on it but

197 I'laam Al-Muwaqi'een, 2/46. 198 This includes sale and salam because each one is an exchange of commodity for

money; exchange and settlement because each one is an exchange of money for money; lease, muzaara'ah and musaaqah because each one is an exchange of a usufruct for money; marriage and khul' because each one is an exchange of money for a moral value; exchange of a passage with another passage in a house because it is an exchange of a usufruct for a usufruct; gift as a reward because the element of compensation is present; loans because it ends up with compensation and guarantee because it also ends up in compensation. However, this excludes donation such as gift


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the piece of land is found later on to be the property of someone other than the seller, the buyer has the right to claim for the price of the piece of land along with the price of the building from the seller as a result of deception. Moreover, if someone buys a slave girl from another person but she is proved not to be the seller's slave girl, the seller is held liable for the value of the child because of his deception. Again, if someone tells traders that they are permitted to trade with his son but it is found later on that the said son is not his, the traders may claim for the price of the goods they sold to him for his deception. Moreover, if the owner of a grinding house tells the owner of the wheat to put his wheat in the hopper when he knows that the hopper has a hole that takes the wheat to the water of the grinder, the owner of the grinding house is held liable for the price of the wheat because he has deceived the owner of the wheat under the lease contract to grind the wheat which is a contract that requires security against damage.199 The Hanafites laid a rule in this respect that reads as follows: "Liability for deception is specifically associated to compensation-based contracts."200

2. Deception related to an act of receiving201 the benefit of which belongs to the deliverer like deposits and leases. Therefore, if the deposit

for no reward, borrowings and documentation contracts like mortgage as they may not include the element of deception. The Hanafites exclude shuf'aa from compensation-based contracts as having no element of deception because the buyer is obliged to deliver the mashfoo' to the shafee' and hence the buyer is not considered to have deceived him. See Ad-Dur Al-Mukhtaar with Haashiyat Ibn Abideen, 5/53, 213 and 514 and Durar Al-Hukkaam, 1/827.

199 Ad-Dur Al-Mukhtaar with Haashiyat Ibn Abideen, 5/152-153; Jaami' Al-Fusoolayn, 2/83, Majma' Adh-Dhamaanaat, pp. 120-165; Sharh Al-Majallah by Saleem Rustum, p. 363 and following pages; Durar Al-Hukkaam Sharh Majallat Al-Ahkaam by Alee Haidar, 1/823 and following pages, Liability in Islamic Jurisprudence by Alee Al-Khafeef, 1/203, Liability for Damages in Islamic Jurisprudence by Sulaimaan Ahmad, pp. 85-86.

200 Al-Inaayah, 7/47; Tarteeb Al-La'aalee by Sulaimaan Nadhir Bashaa, 1/356, 2/812 and 1063 and Haashiyat Ibn Abideen, 5/152.

201 Some jurists used the term "contract" instead of "receipt" but the use of the latter term is better. See Haashiyat Ibn Abideen 5/152. If the deceived receives the usurped object from the usurper through sale, lease, gift, charity, mortgage, deposit or otherwise and the said usurped object is damaged in the hand of the receiver, the original owner is given the option either to hold the deceiver or the receiver liable. If the receiver is held liable, he has the right to claim for the loss he incurs from the usurper if the benefit


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is damaged while in the custody of the trustee without any negligence or aggression on his part and it appears later on that the depositor has usurped the deposit, the trustee becomes liable because his act is based on another liability; however the liability assumed by him is associated with the damage but he may claim for the loss he incurred from the depositor because he has deceived him. The depositor who usurped the property has deceived the trustee through depositing the property with him for his own benefit as the alleged owner of the property when he in reality is not.

Moreover, if the leased property is damaged while in the custody of the lessee but it is found out that the leaser has usurped it, the lessee is held liable to pay for the property and may claim for the loss he incurred from the leaser because he has deceived him. It should be noted that the lessee has paid for the value of the property because it has been damaged while in his custody.

However, there is no liability for a borrowed item or a gift if the property is damaged while in the custody of the borrower or to whom the gift is granted. The borrower has received the borrowed item to use it free of charge and the person to whom the gift is granted has received the gift to be his own property without giving any promise to protect it.202

3. The deception is tied to a condition. For example, if someone gives another one a woman in marriage as a free woman but she is found out to be a slave, the deceived may claim for the value of the child he has given to the owner of the slave girl from the deceiver who told him that the woman was a free one because he is the one who caused loss to him through the act of deception.

from the object goes to the giver as in the case of deposit, lease, sale and otherwise but the usurper may not be claimed against if the receipt is beneficial to the receiver as in the case of gift, charity, will and the like. See Mukhtasar Ikhtilaaf Al-Ulamaa, 4/180-181; Al-Mabsoot, 11/78-79 and 133-136; Badaa'i' As-Sanaa'i', 8/377-378.

202 Al-Mabsoot, 11/78-79 and 132-133; Ad-Dur Al-Mukhtaar and Hashiyat Ibn Abideen on it, 2/152-153 and 209; Sharh Al-Majallah by Saleem Rustum, p. 633; Durar Al-Hukkaam, Liability in Islamic Jurisprudence, Alee Al-Khafeef, 1/204 and Liability for Damages in Islamic Jurisprudence, pp. 85-86.


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Moreover, if someone gives a dress maker a piece of cloth and asks him if it is enough to make a shirt and the dress maker tells him that it is enough for a shirt but is found out after it is cut that it is not enough for a shirt, the dress maker is held liable for the damage of the cloth because the owner of the cloth permitted him to cut it stipulating that it is enough for a shirt.

However, if the owner of the cloth says to the dress maker: "Is it enough for a shirt?" and the dress maker says, "Yes," and the owner of the cloth tells him to cut it but is found out not to be enough for a shirt, the dress maker is not held liable because the owner of the cloth permitted him to cut it without stipulating any condition.

Yet, if the dress maker says, "Yes, it is enough," and the owner of the cloth says, "With this cloth, make it then," and the dress maker cuts it but finds out that it is not enough for a shirt, the dress maker is held liable for the value of the cloth because the permission is conditional.203

4. If the deceiver guarantees safety. For example, if someone tells another one to travel along a specific road and promises to guarantee his property and the latter travels along the said road but he robbed, the former is held liable for the loss of the latter's property.

However, if he tells him to travel along the road for it is safe without promising him to guarantee such a safety and the latter travels along the said road but he is robbed, the former is not held liable.

Moreover, if someone tells another one to give a certain fodder for his animals for it is good ad the latter does but the fodder is found to be poisonous and the animals dies, the former is not held liable because he did not guarantee safety.204

II. The Maalikites: The Maalikites are of the opinion that the deceiver is held liable for the

loss incurred by the deceived if the deception is by deed. They differ as

203 Jaami' Al-Fusoolayn, 2/129; Fataawaa Qaadhi Khaan, 2/321; Majma' Adh-Dhamaanaat, pp.

40-41, Liability, Alee Al-Khafeef, 1/204 and Liability for Damages, p. 86. 204 Jaami' Al-Fusoolayn, 2/83; Fataawaa Qaadhi Khaan, 3/224; Sharh Al-Majallah by Saleem

Rustum, p. 363; Durar Al-Hukkaamm, 1/828 and Liability, Alee Al-Khafeef, 1/204-207.


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to deception by word with regard to considering the deceiver as the primarily liable.205

Examples of deception by word include concealment of defects and dying of an old dress. Moreover, if someone says to another one, "Marry this woman, she is free," when he knows that she is a slave. Therefore, if he marries her to another one, it is a deception by word and he is not held liable for anything according to one opinion. However, if he marries her to him, it is deception by word and deed for which he is held liable. Moreover, if someone tells another one to check the bottle and if it is intact to pour oil in it and the latter tells the former that it is intact but it is broken in reality, yet he does not pour the oil in it, it is a deception by word. However, if he pours the oil in it, it is deception by word and deed for which he is held liable. Likewise, if someone asks another one to check a piece of cloth if it is sufficient to make a shirt of it for him to buy it and the latter tells him that it is sufficient while the fact is that it is not but he does not sell it to him, it is a deception by word for which he is not to be held liable. However, if he cuts it and it turns out to be insufficient, it is deception by word and deed for which he is held liable.206

According to the Maalikites, if a usurped property is damaged by the buyer who knows it to be a usurped property, the owner has the option either to hold either the usurper or the buyer liable whether the property is damaged by a deliberate action, by mistake or by a natural disaster.

Therefore, if the buyer is held liable, he has no right to claim the amount he paid from the usurper because he has knowledge of the deception and accepts it.

However, if the buyer (the deceived) has no knowledge that the property is usurped, the usurper falls under one of the following three conditions:

205 The Maalikites differ as to charging the deceiver by the deceived for the loss he incurs

if the mean of deception is verbal in three opinions: 1) The deceiver is charged like if he did it by deed; 2) he is not charged and 3) he is charged if the transaction includes a sale or lease. The last one is the opinion advocated by As-Saawee in Bulghat As-Saalik and Ad-Dusooqee in his Hashiyah alaa Ash-Sharh Al-Kabeer.

206 Sharh Al-Manhaj Al-Muntakhab ilaa Qawaa'id Al-Madh-hab by Al-Manjoor, p. 547 and following pages and Bulghat As-Saalik, 3/492.


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1st Condition: If he buyer damages the usurped property deliberately, the owner has the option either to charge the usurper or the buyer but the buyer may not charge the usurper because he damaged the property deliberately.

2nd Condition: If the usurped property is damaged by a natural event while in the custody of the buyer, the owner, in this case, has no right to charge the buyer but may charge the usurper.

3rd Condition: If the buyer damages the usurped property by mistake, two opinions are expressed as follows:

1st Opinion: It is equal to deliberate damage and the owner has the option either to hold the usurper or the buyer liable and the buyer holds the usurper liable for his deception.

2nd Opinion: It is equal to damage by a natural event and the owner has no right to hold the buyer liable but he may hold the usurper liable for his deception.

The case of sale also applies to gift, mortgage, deposit and other contracts. However, Ibn Al-Qaasim (d. 191 AH) opines on the case of gift that the owner should begin with the usurper and if he is absent, he can have recourse against the person to whom the gift is given.207

III. The Shaafi'ites: The Shaafi'ites are of the opinion that the deceiver by word is held

liable if the said deception is associated with a condition such as giving a cloth to a dress maker and saying to him, "If it is enough for a shirt, you can cut it," and the dress maker cuts it but finds it not enough for a shirt, the dress maker is held liable because the permission given to cut the cloth is conditional. However, if he says to him, "Is this cloth sufficient for a shirt," and the dress maker says that it is sufficient and cuts the cloth but finds it not enough for a shirt, he is not held liable because the permission is not based on a condition.208

Moreover, the effective deception is the one concurrent with the contract, but if the deception is precedent to the contract, it is not considered of value. However, Al-Ghazaalee opines that the preceding

207 Al-Kaafee by Ibn Abdul Bar, 2/169; Jaami' Al-Ummahaat, p. 413; At-Taaj wal-Ikleel,

7/313 and 434 and Minah Al-Jaleel, 7/85-86. 208 Al-Muhadhab, 2/432.


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deception is equal to the concurrent one with regard to holding the deceiver liable. Stipulating a concurrent deception is only related to the invalidity of the contract and giving the deceived the right of option but not to the liability of the deceiver because the relationship between deception and liability is broader.209

As for deception by deed, two opinions are expressed on some of its forms. For example, if the damage occurs as a result of the action of the deceived, they hold the deceived liable based on the fact that proving the damage is stronger than proving direct action and that if deception and action occur together, action is given priority. For example, if a person usurps some food and offers it to someone and the latter eats it, the eater is held liable if he knows that the food is usurped. However, if he does not, two opinions are expressed in this respect:

1. The usurper is held liable because he deceived the eater eluding that there is no liability on his part.

2. The sounder and established opinion is that the eater should be held liable because he is the one who damaged the food and the one who benefited from it. Therefore, if the eater is held liable he has no right to charge the loss he incurred to the usurper. However, if the usurper is held liable, he may charge the loss he incurred to the eater.210

The Shaafi'ites are of the opinion that usurpation and deception and their consequences entail that both the usurper and the user are held liable. Therefore, if the usurped is damaged, the owner has the option either to charge the usurper or the receiver because the latter has taken custody of the property without the permission of the owner as ignorance of the usurpation does not drop liability but drops sin. Therefore, if the receiver (buyer) is held liable while knowing that the property is usurped, he is then considered a usurper from a usurper and he is the one held liable without having the right to charge the loss to the first usurper. However, if the receiver does not know that the property is usurped and that he is originally held responsible for the safety of the

209 Al-Wajeez by Al-Ghazaalee, p. 350; Fathul Azeez Sharh Al-Wajeez by Ar-Raafi'ee, 8/144

and Liability for Damage, p. 89. 210 Nihaayat Al-Matlab by Al-Juwaynee, 7/377-378; Al-Wajeez, p. 234 and Fathul Azeez,

5/409-410.


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property as in the case of a borrowed item, the deceiver may not be charged with the loss the trustee incurs because he is originally held responsible for the safety of the property and because the usurper had not deceived him.

Yet, if the receiver is a trustee as in the case of loan or mortgage, three opinions are expressed: 1) The established opinion is that the usurper is held liable but not the receiver (deceived); 2) the receiver (deceived) is held liable and he may charge the loss to the usurper (deceiver) because he is deceived by the usurper and 3) the receiver is never held liable.

However, they differ as to gift: Is the usurper (deceiver) should be held liable as the gift is originally not subject to guarantee or the person given the gift who took the gift to be his ownership. Two opinions are expressed in this regard: 1) the person given the gift is held liable and has no right to claim for the loss he incurred from the usurper because the gift is given for no compensation. This is the preponderant opinion and 2) the usurper is held liable because he is responsible to secure the property usurped by him.211

IV. The Hanbalites: The Hanbalites are of the opinion that the deceiver is held liable for the

loss incurred by the deceived in all cases whether deception is committed by word or by deed. However, they differ as to deception by word: Should the deceiver be held liable in all cases or his deception should be associated with a condition in order for him to be held liable? Three opinions are stated in this respect as follows:

1. The deception should be conditional. Therefore, if the deceived fails to stipulate freedom in the case of the slave girl, he has no right to claim for the loss from the deceiver. This is the established opinion and is advocated by the majority of the jurists of the school.

2. If the condition is concurrent with the contract, the deceived has the right to claim for the loss from the deceiver and the other way round. This is the opinion advocated by the Judge Abu Ya'laa.

211 Al-Um, 3/257; Al-Muhadhab, 2/177, 300-301 and 335; Al-Wajeez, p. 192 and p. 234;

Fathul Azeez, 4/510 and 5/408; Rawdhat At-Taalibeen, 4/99; Al-Ashbaah wan Nadhaa'ir by Ibn As-Subkee, 1/322-323 and Mughnee Al-Muhtaaj, 2/279-280 and 295.


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3. No condition is required in any case. This is the opinion advocated by Ibn Qudaamah and Ibn Abu Umar (d. 682 AH)212

Ibn Qudaamah writes, "The judge said that the deception that entails recourse is the one that is associated with a condition concurrent with the contract as in the case of the freedom of the slave girl married to a man as a free woman, in which case the contract may not be terminated had she not been so. This is the opinion of Ash-Shaafi'ee. The opposite is the correct ruling because the companions of the Prophet (peace and blessings be upon him) ruled that the deceiver is held liable without differentiating between the types of deception. Apparently, the case is not usual in contracts, and hence their general rule should not be applied to a rare form. The woman may be the one who deceived though she has nothing to state in the contract, and the time he tells him that she is free or alludes that she is free based on the proofs that most likely result in convincing him that she is free and he marries her based on such conviction, the harm should be removed by giving the deceived the right of recourse against the deceiver."213

As for the questions of deception and liability resulting from usurpation, they opine that the persons who might own the usurped property from the usurper are held liable. As soon as the usurped property is moved from the hand of the usurper to other than the actual owner, the owner has the option to claim either against the usurper or against the receiver. If the receiver knows that the property is usurped, he is the one held liable and may not has the right of claim against the usurper.

Some jurists are of the opinion that the receiver may claim for the value even if he has knowledge of the state of usurpation as long as the value is received by the usurper unrightfully even with the acceptance of the receiver (buyer). This is the view held by Ibn Taymiyah214 However, if the receiver does not know the state of usurpation, Ibn Rajab lays down a rule for this case thus: "He who receives a usurped property from the usurper but does not know that it is a usurped

212 Al-Insaaf, 20/446 and Ash-Sharh Al-Kabeer, 20/441. 213 Al-Mughnee, 9/446-447. 214 Majmoo' Al-Fataawaa, 30/319.


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property, it is the established opinion of our jurists that he is equal to the usurper with regard to holding him liable as much as the usurper is held liable for the value of a property or the usufruct. Moreover, if the receiver is originally entrusted with a property or a usufruct, he may not have the right of recourse against the usurper. However, if he is held liable for something which is not originally entrusted to him and has not used it to his benefit, he may have claim against the usurper. The question here is if he has used it for his benefit, is he alone held liable for it or he may claim against the usurper? The preponderant opinion is that the receiver alone is held liable and may not claim against the usurper.215 Ibn Rajab mentions ten cases of receipt from the usurper which I will summarize here below:

1. The usurper who usurps the property from another usurper is held liable as much as the first usurper if the usurped object is damaged while in his custody.

For example, if someone usurps a car and another one usurps it from him and the said car is damaged by the second usurper, this second usurper is held liable to pay for the damaged car. If the owner of the car holds him liable for the damage, he may not claim for the value he paid for the damage from the first usurper, but if the owner holds the first usurper liable, this first usurper may claim for the amount he paid from the second usurper who damaged the car.

2. The receiver who uses the property for the interest of the giver (usurper) as in the case of deposits and agencies for no commission. The established opinion is that the owner has the right to hold the taker liable who in turn may claim the amount he paid to the owner from the usurper. Some jurists hold that the taker is liable alone, yet some other jurists contend that no liability is placed on him.

For example, if a person takes the usurped object from the usurper as a deposit and such deposit is damaged in his custody, he has the right to claim from the usurper the loss he incurred if the owner holds him liable for the damage. However, it is said that no right of recourse applies because the usurped object is damaged in his custody without having permission.

215 Al-Qawaa'id by Ibn Rajab, p. 224.


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3. The receiver of his interest and that of the giver like partners, brokers, agents for commission and mortgagees may be held liable for the damaged object according to the established opinion but he may claim for the loss he incurred from the usurper because this is associated with trust. Ibn Rajab argues that the established opinion of the madhhab should be this.

For example, if someone receives the usurped object from the usurper as a mortgage and is damaged while in his custody, he may claim for the loss he incurred from the mortgager (usurper). However, some jurists hold that he has no right to claim for the loss he incurred because the usurped object has been damaged while in his custody without permission.

4. The receiver for his own interest either by receiving the object as in the case of loan or by using the usufruct as in the case of a borrowed object the responsibility for which is limited to the object but not the usufruct. However, if both the object and the usufruct are the subject of liability, the usurper is held liable for the usufruct because the loss the receiver incurs is caused by the usurper's deception.

For example, if someone borrows the usurped object from the usurper and is damaged while in his custody, the lender (usurper) is held liable for the loss he incurred for the usufruct. Some jurists are of the opinion that the borrower may not claim for any loss because the usurped object has been damaged while in his custody without permission. Some other jurists hold that if the borrower attains the usufruct, he may not claim for the loss because the loss is equal to the benefit, and if does not, he may claim for the loss because the loss is not compensated for.

5. The receiver of the object for ownership for a specified price as in the case of sale is held liable for the object rather than the usufruct.

For example, if someone buys the usurped object from the usurper but the actual owner retrieves it from him, he may claim for the price from the usurper because the sale has become for no compensation but may not claim for the loss he may incur as a result of damaging the object because the sold object is guaranteed by him under the contract of sale.

6. The receiver of a compensation due to another one under no contract like the dower, the payment for khul', the payment for freedom, the payment for reconciliation of a blood related issue if it is specified,


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the repayment of a confirmed debt in dhimma as in the case of the price of a sold object or otherwise, the value of a damaged object or the like. If these objects are damaged while in the custody of the receiver and are found to be due to other than the usurper, the owner may hold the receiver liable for the compensation for the object and the usufruct and the receiver, in turn, may claim for the loss he incurred from the usurper as a result of the latter's deception.

7. The receiver of a usufruct for compensation as in the case of lease. The majority of jurists are of the opinion that if the usufruct is guaranteed, the receiver may not claim for the loss he incurs from the usurper. However, if the object is guaranteed, he may claim for the loss he incurred from the usurper because of his deception. Other jurists hold that the lessee is not held liable in any way.

For example, if someone rents a usurped object from the usurper, he may claim for the loss he incurred for the object, because he took it as a trust, rather than for the usufruct, and hence he is the one held liable for it whether he attains the usufruct or not.

8. The receiver of a partnership who disposes of the money in a profitable manner for part of the profit like the partner, the mudhaarib, the muzaari' and the musaaqee may claim for the wage from the usurper because they work for him for a wage that they have not received. As for the mudhaarib, the muzaari' and the partner in animals, they may claim for the loss they incurred except for their share of the profit which they do not have the right to claim from the usurper.

As for the mudhaarib and the partner, they are not held liable for anything unless division of profits is made.

9. The receiver for no compensation either of the object with its related usufructs like gifts, endowments, charities and wills or for usufructs only like the one who issues a will to use the usufruct only. The established opinion is that the receiver has the right to claim for the loss he incurs in all cases because he is originally not liable for the usurped object or usufruct and because he is deceived excluding the benefit he gets. However, some jurists hold that he does not have the right to claim for what he lost.

10. The damager of a property on behalf of the usurper, like the one who slaughters an animal and cooks it, is not held liable in any case; the


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usurper is the one liable in these cases because it is his act that caused the damage of the animal. Other jurists hold that the damager is held liable for the damaged object similar to the case of the trustee for the act of damage is given precedence. Al-Haarithee216 from the Hanbalites opines that this case is a case of deception because the damager has no knowledge of the state of usurpation and hence he is not held liable; rather the usurper is the one who should be held liable for the damaged object.217

Sheikhul Islam Ibn Taymiyah218, his disciple Ibn Al-Qayyim219 and Sheikh Ibn Sa'dee (d. 1376 AH)220 are of the opinion that if the usurped object is damaged while in the custody of the deceived without knowing it to be usurped, the owner has no right to hold him liable because he has been deceived by the usurper; rather the usurper (deceiver) is the one who should be held liable because he is the transgressor. This opinion is reported from Ahmad.

Ibn Al-Qayyim writes, "The second opinion states that he (the owner) may not hold the deceived liable in the first instance and may not claim for the damaged object from him. This is the correct opinion reported by Ahmad on the case of the depositor of an object who deposits it with another one without being in need to do so and the object is damaged while in the custody of the second trustee, he is not to be held liable because he is ignorant of the state of usurpation and is deceived. He is neither required to pay for the damaged item nor the Sharee'ah obliges him to do so. How it comes that the deceived is held liable while the

216 Al-Mu'jam Al-Mukhtas by Adh-Dhahabee, p. 28; Tadhkirat Al-Huffaadh, 4/1495; Dhayl

Tabaqaat Al-Hanabilah, 2/262 and Shadharaat Adh-Dhahab, 6/28. 217 Qawaa'id Ibn Rajab, p. 224 and following pages, Tuhfat Ahl At-Talab fee Tajreed Usool

Qawaa'id Ibn Rajab by Ibn Sa'dee, p. 108 and its interpretation by Dr. Abdul Kareem Al-Laahim, p. 313; Ash-Sharh Al-Kabeer, 15/232 and Al-Insaaf, 15/235 and following pages. In Majallat Al-Ahkaam Ash-Shar'iyah, Sheikh Ahmad Al-Qaaree mentions an article that reads: "Any one to whom the usurped object is transferred, he is equal to the usurper. The owner may hold him liable for the object and the lost usufruct." He also mentions articles related to the receiver from the usurper. See Majallat Al-Ahkaam Ash-Shar'iyah, p. 441 and following pages, articles 1413 thru 1422.

218 Majmoo' Al-Fataawaa, 29/325-326. 219 I'laam Al-Muwaqi'een, 3/329-334. 220 Al-Irshaad by Ibn Sa'dee, p. 198.


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deceiver is released, especially if the deceived is doing it as a favour. The gem of the question here is that the deceived is either doing something out of charity or excused and in both cases he may not be held liable."221

Given the above, the following can be noted: 1. All jurists from the four schools of jurisprudence agree that the

deceiver by way of deed is held liable except the case mentioned by the Shaafi'ites about the combination between direct action and cause in which case they contend that the doer is the one to be held liable but not the one who caused the damage with the exception of some forms.222

2. All jurists from the four schools of jurisprudence agree that deceiver by word is held liable if it is associated with a condition or innate in a contract, as the Maalikites contend, but they differ as to whether the condition should be concurrent with the contract or not as already discussed.

3. The Hanafites alone state that deception is considered only in compensation-based contracts contrary to the jurists from other schools of jurisprudence who apply it to all types of contracts.

4. Jurists differ as to whether the deceiver is to be held liable in the first instance or the deceived is the one to be held liable in the first instance and then to claim for the loss he incurs from the deceiver. In my opinion, the deceiver is the one who should be claimed against in the first instance but if the deceiver is absent, the deceived is then claimed against and he may claim against the one who deceived him.

5. Jurists agree that the person who receives the object from the usurper knowing that it is usurped is held liable for the damage but may not claim for the loss he incurs from the usurper because he has transgressed and has not originally been the victim of deception. However, they differ as to holding the receiver liable if he has no knowledge of the state of the usurped object.

The Hanafites are of the opinion that if someone receives the usurped object for a benefit that accrues to the usurper as in the case of deposits and leases, the receiver is held liable and may claim for the loss from the usurper (deceiver). However, if he receives the object for a benefit that

221 I'laam Al-Muwaqi'een, 3/333-334. 222 Al-Ashbaah wan-Nadhaa'ir by As-Suyootee, pp. 297-298.


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accrues to him as in the case of borrowed objects and gifts, the receiver (deceived) may not claim for the loss from the usurper (deceiver).

The Maalikites differentiate between deliberate damage, damage by mistake and damage by a natural event.

The Shaafi'ites give consideration to the original guarantor under contracts. If the deceived originally guarantees the object of the contract, he may not claim for the loss from the deceiver but if he is a trustee, he may claim for the loss from the deceiver. However, they differ as to gifts.

The Hanbalites classify the parties subject to liability into ten types as already discussed.

6. In case of deception by word, if the deceiver guarantees safe act or contract or if the contract includes a condition of guarantee, the deceiver is then held liable on the basis of commitment. Some jurists are of the opinion that if the contract includes a guarantee in case of damage, the guarantee is then a commitment to the condition rather than because of pure deception. However, if there is no condition of guarantee, the majority of jurists hold that it incurs no guarantee or liability because the deceived is not obliged to believe the deceiver.

Others like Ibn Qudaamah and others223 the guarantee is binding when damage takes place if the public norms dictate that the deceiver should be believed in what he advised, especially if the deception is committed by a specialized person who is considered a reference on the case he advised or called for and who is known to be of true advice. Otherwise, he is not held liable.224

Topic Six: Most Important Juristic Issues Related to this Rule

Through the discussion of the conditions related to the application of the rule and the different opinions of jurists, we have already mentioned some of the juristic issues related to the application of this rule. I will suffice with few examples of these issues as follows:

223 Al-Mughnee, 9/446 and Ash-Sharh Al-Kabeer, 20/441. 224 Liability in Islamic Jurisprudence by Alee Al-Khafeef, 1/209 and Liability for

Damages, p. 91.


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1. If the transferer deceives the transferred by transferring him to an incapable person when the transferer knows that he is incapable and the transferred accepts the transfer without stipulating capability of the transferee but it appears then that the transferee is insolvent or incapable, the transferred may hold the transferer liable because he has deceived him.225

2. If someone tells another one to deal with a third person describing him as capable while he knows that the latter is to the contrary and then tells him that he guarantees him in order to attract him to enter into the contract thinking it to be in his interest while the reality is not; in this case if a loss occurs or if the property of the deceived is damaged, the deceiver is held liable for that loss or damage.226

3. If the husband cannot consummate the marriage for a defect the wife has and the husband opts to dissolve the marriage, he has the right to hold the person who deceived him, be it the guardian or the wife, liable for the dower.227

4. If the husband accepts to give his wife the right of khul' for a compensation specified by them but it is found that the compensation is defective or owned by someone else, the husband has the right to hold her

225 This is the established opinion of the Maalikites, a narration from Ahmad advocated

by some of his followers, the opinion of the Dhaahirites and the view advocated by Sheikhul Islam Ibn TaymiyAH The Hanafites, Shaafi'ites and Hanbalites are of the opinion that the transferer is not to be held liable because the transferred has neglected in accepting the transfer before checking the condition of the transferee or stipulating him to be capable. See Tabyeen Al-Haqaa'iq, 4/172; Tuhfat Al-Muhtaaj, 5/235-236; Mughnee Al-Muhtaaj, 3/194; Al-Istidhkaar, 18/503 and following pages; Mawaahib Al-Jaleel, 7/28; At-Taaj wal Ikleel, 7/28-29; Sharh Al-Khurashee, 6/20; Al-Mughnee, 7/61; Al-Insaaf, 13/107; Al-Muhallaa, 8/108; Al-Fataawaa Al-Kubraa, 5/395 and The Effect of Cheating in Contracts, 1/401.

226 This is agreed to by all scholars. See Jaami' Al-Fusoolayn, 2/83, Sharh Al-Majallah by Jameel Rustum, p. 363; Mawaahib Al-Jaleel, 6/35; At-Taaj wal Ikleel, 7/35-36; Tuhfat Al-Muhtaaj, 7/367; Nihayat Al-Muhtaaj, 7/367; Al-Mughnee, 7/73 and The Effect of Cheating in Contracts, 1/410.

227 This is the established opinion of the Maalikites, is the opinion held by Ash-Shaafi'ee in Al-Um and is the established opinion of the Hanbalites. See Al-Kaafee by Ibn Abdul Bar, 2/130; Al-Um, 6/352-353; Al-Mughnee, 10/64; Al-Ikhtiyaaraat Al-Fiqhiyyah, p. 124; Al-Insaaf, 20/517 and The Effect of Cheating in Contracts, 2/616.


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liable for the dower he paid to her because she deceived him about the compensation she specified.228

5. If an advertisement includes false information by which the buyer is deceived and hence buys the product thinking it to be in his interest while the fact it is not like when the advertisement claims that each buyer is entitled to a warranty for three years on all the components of the product but after buying the product, the buyer finds out that the warranty covers maintenance only. Moreover, the advertiser may claim that the product is compatible with Windows 2000 as in the case of computer software but after buying the product he finds out that the product is not compatible with the software. If such deception is made by the agent with the knowledge of the principal and the buyer is unable to return the product because the principal is far away or unknown to him, the deceiving agent is held liable to pay to the buyer.229

6. If a muftee gives a person a fatwaa to destroy something but the fatwaa is found to be wrong; if the muftee is qualified to give fatwaas, he is not held liable but if he is not qualified, he is liable to pay for the damaged property.230

228 This is the established opinion of the Hanafites and is a view held by some of the

Maalikites, Shaafi'ites and Hanbalites. See Al-Mabsoot, 6/188; Tabyeen Al-Haqaa'iq, 2/266-270; Al-Kaafee by Ibn Abdul Bar, 1/369; Mughnee Al-Muhtaaj, 4/448; Al-Mughnee, 10/294; Kashaaf Al-Qinaa' 5/22; Al-Insaaf, 22/49 and The Effect of Cheating in Contracts, 2/616.

229 Al-Mi'yaar Al-Mu'arrab by Al-Wansharisee, 8/357 and The Effect of Cheating in Contracts, 2/2/677 and 289.

230 This is the correct opinion according to the Hanbalites and is advocated by Ibn Al-Qayyim. The Maalikites contend that if the muftee gives a fatwaa that results in the damage of a property, he is not held liable according to the established opinion if he is a mujtahid because this is a kind of deception by word; however, if he is not a mujtahid, he is to be held liable if the ruler or his deputy has appointed him as a muftee because it is a job which he did not perform properly and the damage is caused by his negligence. However, if he is not appointed as a muftee, two opinions are expressed within the madh-hab based on the difference with regard to the deception by word, the preponderant one is that he is not liable. Abu Ishaaq Al-Isfaraayinee from the Shaafi'ites holds a view contrary to that of the Hanbalites: If he is qualified as a muftee, he is liable but if he is not qualified, he is not liable because the mustaftee is negligent in this case. An-Nawawee says, "This opinion by Abu Ishaaq is objected to because the deceived person is not obliged to accept the fatwa." Az-Zarkashee in Al-Manthoor and As-Suyootee in Al-Ashbaah wan-Nadhaa'ir advocate the opinion held by Abu Ishaaq.


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7. If a person gives his dress to a washer and the washer gives it to another person who uses it up, the washer is the one held liable for the dress because of his deception.231

8. If the financial brokerage centre licensed by official authorities gives false information that causes loss to the deceived, the latter may hold the centre liable for the deception it has committed against him.232

9. If someone buys a toy and finds it to be defective and may adversely affect the child who uses it but he gives it to a child instead of returning it to the shop and if the toy causes harm to the child, the giver is held liable because he has deceived the boy by transgressing and causing him harm.233

The issues related to this rule are numerous and continuously changing to the extent that they are countless. The above, Allah willing, is sufficient.

Conclusion

To conclude, I would like to state here the most important conclusions that I have reached in the following points:

1. The importance of the rule "Al-Ghaar Dhaamin" (the deceiver is liable) is salient in its broad juristic applications which have been given various definitions by jurists.

However As-Subkee in Jam' Al-Jawaami' does not take the condition of qualification into account because the muftee should originally be a mujtahid. See At-Taaj wal Ikleel, 7/324; Adab Al-Muftee wal Mustaftee by Ibn As-Salaah, 1/45-46; Rawdhat At-Taalibeen, 8/94; Al-Manthoor, 1/135; Tashneef Al-Masaami' by Az-Zarkashee, 2/870; I'laam Al-Muwaqi'een, 4/226; Safwat Al-Fatwaa, p. 70 and Sharh Al-Kawkab Al-Muneer, 4/514.

231 This is according to Maalik and Ahmad. Muhammad Ibn Al-Hakam reported from Ahmad that he was told about Maalik's opinion and he objected to it and opined that if the washer did not know that the dress was his, the one who used it should be liable for the damage if the dress is not used up. In Al-Istidhkaar, Ibn Abdul Bar, after reporting Maalik's statement, says, "The majority of jurists differ with him including Ash-Shaafi'ee and Al-Kufee who said, 'The owner of the dress has the option either to hold the user liable for the damage he made to the dress unless he has severely damaged it, in which case he is liable to pay its value or to hold the washer liable because of his mistake. If the washer is held liable, he may claim for the loss he incurred from the one who used the dress and if the user is held liable, he has no right to claim for the loss from the washer because he paid for what he benefited from. See Al-Mudawanah, 3/401-402; Al-Istidhkaar, 18/502-503; Adh-Dhakheerah, 5/519 and Al-Qawaa'id by Ibn Rajab, p. 234.

232 Liability for Aggression in Islamic Jurisprudence, p. 257. 233 Ibid, p. 259.


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2. The reasons of liability in the Islamic jurisprudence are numerous; Muslim jurists differed as to their number. However, they are not separate but are complementary to each other. The main grounds of liability are four: the contract, usurpation, damage and deception.

3. This rule relates to the majority of transactions, issues of ownership, usurpation and their related provisions as well as to offenses, revocation of testimonies, courts of justice and fatwaa.

4. The juristic applications of this rule are countless as much as the juristic cases related to them.

5. The conditions applicable to this rule should be considered when judging on a case of deception.

6. Jurists differ as to applying deception to certain cases based on their difference as to the presence of some conditions or objections that impede from judging a case as involving deception.

7. Jurists from the four schools of jurisprudence are in agreement that the party causing deception is liable in case of deception by deed except that the Shaafi'ites differ as to the combination between the doer and the causer and that the damager is more liable to pay for the damage than the causer.

8. Jurists from the four schools of jurisprudence agree that deception is done by word if it is based on a condition or a contract but they differ if it is not.

9. The Hanafites are the only jurists who argue that deception can be applied to compensation-based contracts only. Jurists from other schools of jurisprudence apply it to all contracts and transactions.

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