Introduction to Islamic LawLesson 4

The Book of Liability نامضّلا باتك

• This area of Islamic law examines the the rules rela4ng to cases where one person accepts the liability of another person’s debts.

• Sunni and Shia jurists differ in their defini4on of liability.• In the view of Shia jurists, ّنامض is the transfer of the obliga4on of a

debt from the debtor to a party who accepts liability. Once the liability has been transferred, the creditor no longer has the right to seek it from the original debtor.

• In Sunni jurisprudence, however, ّنامض is the annexing of the obliga4on of the debt on to someone else who also becomes obliged to repay the debt.

The Book of Liability نامضّلا باتك

• Thus, after the contract of liability, the creditor has the right to seek the debt both from the original debtor and from the person who has made himself liable.

• Different details and scenarios are discussed in this section of fiqh.

The Book of Se1lement حلصلا باتك

• In this book the rulings for agreement or seFlement with regard tolegal disputes is discussed.

• The “sulh” that is studied in this book differs from the “sulh” that is studied in the book of jihad. Sulh in the book of jihad means “poli4cal agreement” whereas here it deals with property affairs and common rights.

• For example, if a debt is owed but the amount of the debt is not precisely known, the two par4es make a “sulh” agreement and seFle on a specific sum. Sulh agreements are generally made to seFle arguments and disagreements.

The Book of Partnerships ةكرشلا باتك

• Shirkah means that a property or a right belongs to more than one person.

• For example, if brothers inherit their father’s property, then, until such time as they divide it, they are partners in that property. Or two people may become partners in the purchase of a car or a house or a piece of land.

• A partnership is sometimes accidentally forced on someone, for example, when the wheat of two farmers accidentally becomes mixed and it is impossible to separate the wheat of one from the wheat of the other.

The Book of Partnerships ةكرشلا باتك

• There are two types of partnerships in Islam, contractual and non-contractual.

• The examples above are non-contractual partnerships.• A contractual partnership is made when two or more people – by

agreement or contract- form what is called a ’company’ such as a trading company, a farming company, or a tech company etc.

• Contractual partnerships or companies are subject to laws which are studied in fiqh.

• In the book of partnerships the laws of profit-sharing are also discussed.

The Book of Partnership of Capital and Labor ةبراضملا باتك

• This refers to a kind of contractual partnership, but not a partnership of two or more investors. Rather it is a partnership of capital and labor, meaning that one or more partners provide the capital for a trading business and one or more partners provide the labor involved in the actual trading.

• The partners must first be in agreement as to the division of profits, and then the contract of ةبراضملا is to be formally executed.

The Book of Agricultural Partnerships ةاقاسملاو ةعرازملا باتك

• Muzara’ah and musaqat are two more types of partnership.• They are like ةبراضم in that they are both types of partnerships

between capital and labor.• The difference is that ةبراضم is related to trading whereas muzara’ah

ةعرازم is for farming.• In ةعرازم the owner of the land and water makes an agreement with

someone else who does the actual farming and they agree as to the specific propor4on of the profits each party shall receive.

The Book of Agricultural Partnerships ةاقاسملاو ةعرازملا باتك

• Likewise, in musaqaat ةاقاسملا are related to the affairs of orchards.• The owner of fruit trees concludes an agreement with someone else

who becomes responsible for all the work involved in looking after the trees, such as watering them and all the other things effective in fruit production and both the investor and worker take their specified share.

The Book of Agricultural Partnerships ةاقاسملاو ةعرازملا باتك

• In partnerships between the capital and labor, any kind of harm or loss to capital is borne by the owner of the capital, the investor.

• There is no certainty of making a profit on the capital which means that it is possible that a profit will or will not accrue

• The investor, just like the worker, may make no profit or even lose their capital.

The Book of Trusts and Deposits ةعیدولا باتك

• A wadi’ah, deposit or trust, means entrusting property to someone and making that person one’s agent in keeping and safeguarding it.

• This in turn creates duties for the trustee but if the property suffers or is lost and the trustee has performed and observed those duties, he is not liable.

The Book of Lending ةیراعلا باتك

• This is a type of contract according to which a person borrows the property of a second person in order to benefit from it.

• A’riyah and wadi’ah are two types of trusts, but in wadi’ah the owner entrusts his property into the safekeeping of another and the trustee has no right, without the owner’s permission, to make use of it in any way.

• Under the provisions of ةیراع , however, the owner from the beginning gives his property to the other person for him to use and then return.

The Book of Renting and Hiring ةراجلإا باتك

• In Islam, there are two types of ijarah• Either a person gives the benefit of his property to another in return for an

amount of money. ةراجلإا لام• Or a person may rent out his services and become an ریجأ ‘ajeer’ which means

that in return for carrying out specific work, he will receive payment.

• Hire is similar to buying and selling in as far as both involve an exchange. The difference is that in buying and selling, the exchange is of a thing for money, while in hire, the exchange is for the benefit of a thing for money

The Book of Renting and Hiring ةراجلإا باتك

• Rent also has an aspect in common with ةیراع ‘lending’ in that both the renter and the ةیراع trustee make use of a benefit, the difference being that the renter, having paid the price to rent, is the owner of the benefit, while the ةیراع trustee is not the owner of the benefit but merely has the right to make use of it.

The Book of Deputation ةلاكولا باتك

• Sometimes one may need to have a deputy or a representative for issues that require a contract.

• Marriage and divorce are good examples, for the contracts of marriage and divorce must be verbally recited in correct and valid Arabic.

• The person who is represented is called the muwakkil لكّوم and the representative is called the wakil لیكو

• The act of representation itself is called tawkil لیكوت

The Book of Endowments and Charity تاقدصلاو فوقولا باتك

• An endowment is what a person sets aside from his property for a special use.

• According to one defini4on, waqf entails safeguarding the original ar4cle of waqf but making it untransferable, while at the same 4me freeing its benefits.

• There is a difference of opinion about whether an inten4on of seeking nearness to God is a condi4on of waqf or not.

The Book of Temporary Endowments سبحلاو ىنكسلا باتك

• Sukna and habs are similar to waqf, with the difference that in waqfthe original property or wealth is guarded forever and there is no possibility of it being someone’s property, whereas habs means that a person designates the benefits of his property for a specified period to be spent in a charitable way, and after that period it again becomes his personal property.

• Sukna, however, means that a person designates a dwelling for the use of a poor person for a period and at the end of that period the original owner regains his ownership.

The Book of Gifts or Donations ةبھلا باتك

• One of the effects of ownership is that one has the right to give or donate one’s property to others.

• Giving is of two types: Mu’awadha ةضواعم (in exchange) and ghayr mu’awadha ةضواعم ریغ .

• In the laFer case, one receives nothing in return for his dona4on.• However, giving ‘in exchange’ means that one receives something in

return for one’s giY.

The Book of Gifts or Donations ةبھلا باتك

• Something given ‘in exchange’ is not retrievable, that is, it cannot be taken back.

• However, when something is given ‘not in exchange’, if it is given to members of one’s family or relatives, it cannot be taken back.

• In other circumstances it can be taken back and the giver can nullify the transaction.

The Book of Wagers ةیامرلاو قبسلا باتك

• Sabq and rimayah are two forms of beZng agreements between the compe4tors of horse races, camel races or shoo4ng compe44ons.

• Sabq and rimayah are forms of gambling, yet, because the purpose of the races and compe44ons is the prac4ce of the mar4al arts necessary for jihad, Islam considers them permissible as a means of encouraging the par4cipants.

• Of course, this permission does not extend to anyone other than the par4cipants.

The Book of Wills ةیصولا باتك

• This book is related to the provisions of a will with regard to one’s wealth or any children of whom he is a guardian.

• Each person has the right to appoint an executor يصو of his will and be the guardian of his underage children after his death to supervise their education and other affairs.

• Each person has the right to stipulate in his will how he wants up to 1/3 of his wealth to be spent.

The Book of Wills ةیصولا باتك

• There are two main types of wills:• 1. Wills related to the transfer of ownership ةیكیلمتلا ةیصولا• 2. Wills related to testaments ةیدھعلا ةیصولا

The Book of Marriage حاكنلا باتك

• This book discusses the conditions of marriage and details of its contract, and then the maharim, that is, those who are prohibited from entering into a marriage, such as father and daughter, mother and son, brother and sister, and so on.

• Another topic that is discussed is the types of marriage: temporary and permanent.

• The book also deals with rights of husbands and wives and marital conflict etc.