Thursday, July 24, 2008

Rib¯a includes the exchange of a debt with a debt

It is related from M¯us¯a ibn ‘Ubaydah from ‘Abd All¯ah ibn D¯in¯ar from Ibn ‘Umar from the Prophet (God’s peace and blessings be upon him) that he proscribed the exchange of a k¯al¯i’ (debt) for a k¯al¯i’ (debt), while in some versions the words are, “exchange of a dayn (debt) for a dayn (debt),” but they are both the same. This is, however, overlooked up to the session of the contract, because it is permitted to o?er dirhams by way of salam for the delayed delivery of wheat when both are debts. However, if they part without taking possession of the dirhams the contract is void. Likewise, the sale of dirhams for d¯in¯ars is permitted, when both are debts, but if they part before possession the contract is void.

Prohibition of rib¯a implied in the verse

If a man who owes one thousand dirhams after a period negotiates an early payment at five hundred (instead of one thousand), it is not permitted. It is related by Sufy¯an from Humayd from Maysarah, who said, “I asked Ibn ‘Umar, if a man owes me a debt after a period, and I tell him to pay it sooner for which I will lessen the amount he owes.” He said, “This is rib¯a.” A proscription about this is narrated through Zayd ibn Th¯abit as well about this. This is also the opinion of Sa‘¯id ibn Jubayr, al-Sha‘b¯i, al-Hakam, and it is the opinion of our (Hanaf¯i) jurists as well as that of the jurists generally. Ibn ‘Abb¯as and Ibr¯ah¯im al-Nakha‘¯i have said that there is nothing wrong with this.

The evidences that indicate the invalidity of this are two. First, is its designation as rib¯a by Ibn ‘Umar, and we have explained that legal terms are formed in response to queries. Second, it is well known that rib¯a al-j¯ahil¯iyah was through a loan for a period with a stipulated excess. The excess here was in lieu of the period. All¯ah annulled it and declared it prohibited and said, “But if ye turn back ye shall have your capital sums: deal not unjustly and ye shall not be dealt with unjustly,”( Qur’¯an 2 : 279 ) and He also said, “Give up what remains of your demand for usury, if ye are indeed believers,” (Qur’¯an 2 : 278) as a precaution against the taking of compensation in lieu of the period. Thus, if a person owed a thousand dirhams after a period and the other was prepared to give a discount for payment before the end of the period, then, this was the rib¯a that was stated in the verse by All¯ah through the prohibition. There is no dispute that if he was owed one thousand dirhams to be paid immediately and it was said to him, “Give me a further period and I will increase a hundred dirhams,” this would be prohibited, because the hundred would be in lieu of the increased period. Likewise, the discount carries a meaning of excess when it is in lieu of a period. This is the principle in the prohibition of the permissibility of taking counter-values in lieu of periods. It is for this reason that Ab¯u Han¯ifah said in the case of the person who gave cloth to the tailor saying, “If you stitch it today you get a dirham, but if you stich it tomorrow you get one-half dirham,” that the second condition is void and if he does stitch it he will have a reasonable wage. The reason is that the period has been equated with the counter-value when the work in both periods has the same nature. He, therefore, did not permit it, because it is like the delayed sale of the nature that we have elaborated. As for those among the ancestors who permitted the transaction based upon “hasten the payment and I will reduce the amount,” they probably did so because it had not been stipulated as a condition, that is, the discount

was offered without any condition being stipulated and the other party also hastened the payment without any condition.

Excerpt on Rib¯a from Ahk¯am al-Qur’¯an

All¯ah, the Exalted, said:

”Those who devour usury will not stand except as stands one whom the Evil One by his touch hath driven to madness. That is because they say: “Trade is like usury,” but Allah hath permitted trade and forbidden usury.” (Qur’¯an 2 : 275.)

Ab¯u Bakr (al-Jass¯as) said: The root meaning of al-rib¯a in the language is excess from which is also derived the word r¯abiyah, because of the excess compared to the land around it; so also rabwah, which is raised land. From the same meaning is the usage “arb¯a so and so over so and so,” when someone shows an excess in word and deed over another.

In the law (shar‘), it is applied to meanings in which it was not used in the language. This is indicated by the fact that the Prophet (God’s peace and blessings be upon him) termed nas¯a’ as rib¯a in the tradition of Us¯amah ibn Zayd. He said, “Verily, rib¯a is in nas¯i’ah.” ‘Umar ibn al-Khatt¯ab, may All¯ah be pleased with him, said that rib¯a has different forms and out of these salam in teeth, that is, in animals, is not concealed. ‘Umar also said that the verse of rib¯a was one of the last to be revealed, and the Prophet (God’s peace and blessings be upon him) was taken away before he could elaborate the details for us, therefore, give up rib¯a and the suspicion of rib¯a. It is established from this that rib¯a became a technical term, for had it been governed by its original meaning in the language, it would not have been obscure for ‘Umar, who was fully aware of the names used in the language, being a native speaker.

This (the conversion of the word into a technical meaning) is also indicated by the fact

that the Arabs were not aware of the sale of gold for gold and silver for silver with a delay (nas¯a’) as rib¯a, but this is rib¯a in the technical meaning. If this (meaning of rib¯a) is as we have explained it, then, it became like all the other unelaborated (mujmal) words that are in need of an elaboration (bay¯an). These are terms that have been transferred from the language to the law and assigned meanings to which the word was not originally applied in the language, like sal¯at, sawm, and zak¯at. Such words are in need of a bay¯an and it is not proper to employ them in legal reasoning for the prohibition of any of the contracts, unless an evidence has been adduced to show that such a meaning is employed by the law (shar‘). The Prophet (God’s peace and blessings be upon him) has elaborated on many occasions the intention of All¯ah in a verse, by way of an explicit statement or in response to a query (tawq¯if), and through these he has indicated the evidence (dal¯il). The (legal) meanings are, therefore, not lost to those who have knowledge when they employ legal reasoning.

The rib¯a that the Arabs knew and used to practice was the qard (loan) of dirhams and d¯in¯ars for a period with an excess over what was loaned and upon which they had agreed; they were not aware of the spot sale when it carried an excess in the same species. This (the giving of loans on interest) was well known among them, and because of this All¯ah said:

”That which ye lay out for increase through the property of (other) people will have no increase with Allah: but that which ye lay out for charity seeking the Countenance of Allah, (will increase): it is these who will get a recompense multiplied. (Qur’¯an 30 : 39.)

He, thus, informed them that this stipulated excess was rib¯a in the substance of the wealth, because there was no counter-value available from the side of the lender. The Exalted said: “Devour not usury, doubled and multiplied,” to indicate the manner in which the stipulated excess was doubled and multiplied. All¯ah, the Exalted, thus, annulled the rib¯a that they charged, and He annulled other types of sales and called

them rib¯a. All these were then accomodated under the prohition of the words, “And prohibited rib¯a,” because of the term having included them all in its meaning assigned by the law (shar‘). Their dealings in rib¯a were nothing more than the lending (qard) of dirhams or d¯in¯ars with a stipulated excess for a period.

Inthetechnicalsense,thewordrib¯aisassignedseveralmeanings.Thefirstistheonethatwasprevalent among the people of the j¯ahil¯iyah. The second is excess in the same species out of things measured and weighed, according to the view expressed by our (Hanaf¯i) jurists. M¯alik ibn Anas, along with species, considers the attribute of being food that can be stored. Al-Sh¯afi‘¯i considers consumption (as food) along with species. Thus, (similarity of) species is acknowledged by all in what pertains to the prohibition of

taf¯adul when the other attribute is associated with it, as we have explained. The third is nas¯a’ (delay), which is of several types. It is found in the same species of each thing, and exchanging a part of it for another part is not permitted, irrespective of its being a weighable or measurable or other commodity. Thus, in our view, it is not permitted to exchange dresses from Merv (of the same kind) with a delay, because of the existence of the same species. Among these types is also the attribute that is associated with species with the condition of the prohibition of the excess (taf¯adul), that is, weight or measure in things other than those serving as prices, which are dirhams and d¯in¯ars. Thus, if wheat is exchanged for barley with a delay, it is not permitted, because of the existence of measuring. Likewise, if iron is sold for brass with a delay, it is not permitted, because of the existence of weighing. All¯ah, the Exalted, is the Grantor of success.

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