The issue of cutting the moustache
by al-Hafidh Zain al-Din al-'Iraqi#
In the name of Allah, Most Merciful, Most Compassionate. May Allah send prayers and greetings upon our prophet Muhammad, his family and companions. All praise is for Allah, the most perfect praise and His prayers and greetings upon Muhammad, His messenger and slave.
You asked about a Hadith and mentioned a report narrated by al-Nasa'i in his Sunan al-Kubra in which he says, Muhammad bin 'Abd Allah bin Yazid al-Muqri al-Makki informed us that he heard from Sufyan who related from Zuhri from Sa'id ibn al-Musayyib that Abu Hurayrah may Allah be pleased with him said that the Prophet may Allah bless him and give him peace said “ things of natural disposition (ar: fitra) are five: circumcision, shaving the pubic hair, plucking the armpits, pairing the nails and shaving the moustache.”
(you asked) Is this hadith rigorously authenticated ? and is the mention of shaving the moustache authentic or not ?
I (namely, al-Hafidh al-'Iraqi) say and success it from Allah alone, that this chain of transmission is sound and all of it's narrators are trustworthy. Al-Nasa'i related this hadith just as you mention in his Sunan al-Kubra and in his Sunan al-Sughra with a connected chain as well. [a portion left untranslated]
However, with respect to the words “shaving the moustache” different variations are related from Sufyan ibn 'Uyaynah. Imams Ahmad bin Hanbal, 'Ali bin al-Madini, Abu Bakr bin Abi Shaybah, 'Amr bin Muhammad al-Naqid, Zubair bin Harb, Musaddad bin Masarhad and others relate the hadith from Sufyan with the words “ cutting the moustache”.
As for the nararration of Ahmad bin Hanbal from Sufyan, he related it in his Musnad. The narration 'Ali bin al-Madini was mentioned by al-Bukhari in his Sahih while the narration of Abi Shaybah was recorded by Muslim and Ibn Majah. The narration of both 'Amr al-Naqid and Zubair bin Harb were recorded by Muslim as well. As for the narration of Musaddad, it was recorded by Abu Daud.
Zakariyya bin Yahya bin Asad al-Marwazi also related the hadith with similar wording from Sufyan.
The view of 'ulama above is the correct position due to their excellent memories and absolute precision and the narration by al-Nasa'i in question is considered irregular since it goes against the narration of those who are trustworthy.
We looked at who concurs with Sufyan in his narration from al-Zuhri, and we found the following narrators: Ibrahim bin Sa'd al-Zuhri, Yunus bin Yazid al-Iyli, Ma'mar bin Rashid and Zam'ah bin Salih all narrating from Zuhri just as the majority related from Sufyan and they all related the hadith with the words “ cutting the moustache”.
As for the narration of Ibrahim bin Sa'd al-Zuhri, al-Bukhari recorded it in his Sahih. Muslim and al-Nasa'i recorded the narration of Yunus bin Yazid. Al-Nasa'i and al-Tirmidhi recorded the narration Ma'mar which al-Tirmidhi classified as authentic. As for the narration of Zam'ah, Abu Daud al-Tayalisi recorded it in his Musnad.
The narraration of these four figures from al-Zuhri is evidence for the narrations of the Jamhur from Sufyan.
After this, we looked, did anyone concur with Sa'id ibn al-Musayyib in his narration from Abu Hurayrah ? Then we found that Sa'id al-Maqbari and his father Kaysan both relate the hadith from Abu Hurayrah.
Sa'id al-Maqbari's narration was recorded by al-Nasa'i who relates it from the riwayah of 'Abd Rahman bin Ishaq from Sa'id al maqbari with the words “shortening the moustache”.
Said's father's narration was recorded by Malik in his Muwatta from said al-maqbari from his father with the words “ cutting the moustache.
Abu Salmah relates a similar hadith from Abu Hurayrah. Al-Bazzar relates in his Kitab al-Sunan from the riwayah of Muhammad bin Ishaq from Muhammad bin Ibrahim from Abu Salmah from Abu Hurayrah that the Prophet may Allah bless him and give him peace said, “ Purificatory acts are four: cutting the moustache, shaving the pubic hair, pairing the nails and the use of miswak.”
Then we looked, did anyone other than Abu Hurayrah narrate this hadith from Nabi may Allah bless him and give him peace ? We found the following companions: 'Abd Allah ibn 'Umar, 'Aishah, 'Ammar bin Yasir, Abu al-Darda' and Anas bin Malik all relating this hadith with the words “ cutting the moustache”.
As for the hadith of Ibn 'Umar, al-Bukhari narrates it from the riwayah of Handhalah bin Abi Sufyan from Nafi' from Ibn 'Umar that Rasulullah may Allah bless him and give him peace said, “ acts of fitrah include: shaving the pubic hair, pairing the nails and cutting the moustache.”
al-Nasa'i relates this hadith as well but with the words “and taking from the moustache”.
The hadith of 'Aishah was recorded by Muslim and it is also mentioned in al-Sunan from the riwayah of Mus'ab bin Shaybah from Talq bin Habib from 'Abd Allah bin Zubair from 'Aishah who said that Rasulullah may Allah bless him and give him peace said, “ Ten things are from among fitrah: cutting the moustache and letting the beard grow.....”
al-Nasa'i regarded this hadith as weak due to the narration of Mus'ab bin Shaybah whose ahadith are rejected and stopping at Talq bin Habib is closer to being correct.
The Hadith of 'Ammar bin Yasir was recorded by Abu Daud and Ibn Majah from the riwayah of 'Ali bin Zaid from Salmah bin Muhammad bin 'Ammar bin Yasir from 'Ammar bin Yasir that Rasulullah may Allah bless him and give him peace said, “ Among the acts of fitrah is to rinse the mouth and nose with water, to use the toothstick and to cut the moustache.” In the wording of Ibn Majah. Al-Bukhari had some things to say about the connection of the chain of transmission.
The Hadith of Abu al-Darda' was recorded by al-Bazzar in his Musnad from the riwayah of Mu'awiyah bin Yahya from Yunus bin Maisarah from Abu Idris from Abu al-Darda' who said that Rasulullah may Allah bless him and give him peace said, “ Purificatory acts are four: cutting the moustache and shaving the pubic hair...” al-Bazzar also related this hadith in his Sunan as ibn Daqiq al-'Eid mentioned.
As for the hadith of Anas bin Malik, both Abu Daud and al-Tirmidhi relate it from the riwayah of Sadaqat al-Daqiqi from Abu 'Imran al-Jawni from Anas bin Malik who said, “ Rasulullah may Allah bless him and give him peace stipulated that the pubic hair be shaved, the nails paired, the moustache cut and the armpits plucked once every forty days.” Ibn Mundah related it and said that it is a sound chain from the writing of al-Bukhari. However, ibn Daqiq al-'Eid raised an objection about this in his al-Imam saying that is it not in the writing of al-Bukhari for Sadaqat al-Daqiqi was classified as weak by Yahya bin Ma'in and Abu Hatim al-Razi.
The hadith was also related by Muslim, al-Tirmidhi and Ibn Majah from the riwayah of Ja'far bin Sulaiman from Abu 'Imran al-Jawni from Anas bin Malik who said, “ The time for cutting the moustache had been set for us....”
This is the saying of a companion which takes the ruling of a Marfu' hadith according to the sound view of scholars of Hadith and Usul and Allah Most High knows best.
All of the aforementioned ahadith show that the hadith in question related by al-Nasa'i is irregular in it's meaning and is isolated since no one besides Muhammad bin 'Abd Allah bin Yazid al-Muqri related it. And in memorization and accuracy he is not like those who differ with him such as Ahmad bin Hanbal, 'Ali al-Madini etc.
If the person who holds that the moustache should be shaved and removed says, “I do not differentiate between the two words and I hold cutting to mean shaving.” [Perhaps he shaves with scissors] just as the wool of a sheep is sheared off. The evidence for this is the command to clip and trim in the agreed upon hadith of Ibn 'Umar related by Nafi' in which Rasulullah may Allah bless him and give him peace said, “remove the moustache and let the beard grow”. This is related by al-Bukhari with the words “ eliminate the moustache,” and Muslim with the words, “ Shear off the moustache”.
As for holding the word “cutting” to mean “shaving” , it goes against what is evident. The preponderant view is that “cutting” means to cut some portion and leave some due to the aforementioned narration of al-Nasa'i in which he says “shorten the moustache” and shortening is different from shaving. Furthermore, the hadith of Ibn 'Umar and Abu Hurayrah do not agree on one wording alone, i.e “remove” ,for Ahmad relates the hadith in his Musnad from Abu Hurayrah with the words “ cut the moustache”.
As for his (may Allah bless him and give him peace) saying, “ remove, shear and eliminate,” We take it to mean the part of the moustache near the upper lip that is recommended to remove in such a manner that nothing is left on the edge of the lip. And what grows above the edge of the upper lip is recommended to be shortened such that the only part which is sheered off is the hair on the edge of the lip. This practice has been established by all of the various narrations from commanding to cut, shorten, remove, sheer and eliminate. In this interpretation there is a merger between the various proofs. Also what shows that it is not recommended to completely remove the moustache is what Ahmad relates in his Musnad, Abu Daud in his Sunan, al-Tirmidhi in his al-Shama'il and al-Nasa'i in his Sunan from the riwayah of Mughirah bin 'Abd Allah from Mughirah bin Sh'ubah who said, “ my moustache was long so Rasulullah (may Allah bless him and give him peace) cut the hair that grew beyond the siwak placed under it.” or he said, “ I shall cut if for you on a miswak.” and the wording is according to Ahmad's riwayah. This chain of transmission is sound, all of it's narrators are utilized in the Sahih works.
If what is intended is shaving and removal, surely a siwak would not have been placed under the moustache so as to cut what grows beyond it. A similar report has come in the hadith of 'Aishah in which she says, “ Rasulullah (may Allah bless him and give him peace) once saw a man with a long moustache, and so he said, “ bring me scissors and a miswak”, then he placed it on the edge of his moustache and trimmed off what grew beyond the miswak.” Abu Bakr al-Bazzar related this hadith in his Musnad and said, “ we do not know anyone who narrated it from Hisham except for 'Abd Rahman bin Mushir and he is not a Hafidh.”
I say, he is the brother of 'Ali bin Mushir and he is weak. He assumed the position of Qadhi in Jabbul. The text of this hadith is weak and it is not proper to use as a proof. I only mentioned it so as to make it's weakness known and the real proof rests in the hadith of Mughirah bin Sh'ubah. Similarly, the various ahadith that mention taking from the moustache allude to the fact that *some should be removed by using the word *from (ar:min). That can be found in the hadith related by al-Tirmidhi from the riwayah of Sammak bin Harb from 'Akramah from Ibn 'Abbas who said, “ Nabi (may Allah bless him and give him peace) used to cut his moustache or take from his moustache.” al-Tirmidhi said that this hadith is Hasan Gharib.
Al-Tirmidhi and al-Nasa'i relate from the riwayah of Habib bin Yasir from Zayd bin Arqam that Rasulullah (may Allah bless hime and give him peace) said, “ whoever does not take from his moustache is not from among us.” al-Tirmidhi said that this hadith is Hasan Sahih.
One of the Imams of guidance, 'Umar bin 'Abd al-Aziz, described the recommended manner of taking from the moustache in the report which al-Awza'i relates from him, “ The recommended manner of cutting the moustache is to trim it so that the edge of the upper lip is visible (ar: al-Itar).” Abu al-Dahdah Ahmad bin Muhammad bin Isma'il al-Tamimi narrates this in the third volume of “Shuyukh al-Awza'i”.
The word al-Itar with a kasrah on the hamza refers to the edge of the upper lip which separates it from the place where the hair grows. Abu Musa al-Madini mentions this in his appendix to al-Harawi's “Gharibin” as well as Ibn Athir in his Nihayah. Al-Jawhari mentioned that anything that encompasses something is a “edge” or “rim” (Itar) for that thing and from this meaning is “the edge of the lip”. He (al-Jawhari) mentions that the edge of a palm is it's wood and the edge of a hoof is what is surrounded by hair.
Does the saying of a Tabi', “ The recommended manner is like this ” fall into the Marfu' category like the saying of a companion except that it is Mursal ? Or it it a Mawquf report that is connected ? Our companions have two views on this matter. Al-Nawawi relates both positions in his commentary of Shirazi's Muhadhdhab and he ruled that the sounder view is that such saying is Mawquf.
What 'Umar 'Abd al-Aziz mentioned could possibly have been practiced upon by a number of the companions according to what al-Bayhaqi relates in his Sunan al-Kubra with a good chain of transmission. He relates from Shurahbil bin Muslim al-Khawlani who said, “ I saw five of the companions of Rasulullah (may Allah bless him and give him peace) who would cut their moustaches and let their beards grow (and dye it yellow), Abu Umamah al-Bahili, 'Abd Allah bin Bashr, 'Utbah bin 'Abd Allah, al-Hajjaj bin 'Amir al-Thimali and al-Miqdam bin M'adi Karib al-Kindi, all of them used to cut their moustache along the edge of their lip.”
This is the view of the vast majority of Ahl al-'Ilm (people of knowledge) from among the companions, successors and those after them and it is the view of Imams Malik and al-Shafi'i. Al-Bayhaqi relates in his Sunan al-Kubra with a chain of transmission going to 'Abd al-'Aziz bin 'Abd Allah al-Uwaisi who said, “ Malik bin Anas once mentioned the practice of removing the moustache carried out by some people. Malik said, “ such people ought to be hit for doing that,for there is no hadith of Nabi (may Allah bless him and give him peace) regarding removal of the moustache. Rather, it should (be cut) such that it reveals the edge of the lips and mouth. Malik bin Anas also said that the practice of shaving the moustache is an innovation that has appeared among people.
[Al-Bayhaqi said, “ It is as if he (may Allah have mercy on him) is holding that the removal that is commanded in the hadith means to take from the moustache by trimming it and not shaving and his rejection occurs with respect to shaving and not trimming. The doubt that occurs from the narrator is in the rejection of removal without exception (be it shaving or sheering off) and Allah Ta 'Ala knows best.]
Malik said in Muwatta, “ it would be taken from the moustache such that the edge of the lip would show and this is al-Itar and it is not to be sheered it off. Ibn Qasim narrated from Malik, “removing the moustache is rejected according to me.”
'Abd Allah ibn 'Umar and some of the successors held that the moustache should be shaved and removed and this is the view of Ahl-Ray and Ahl al-Dhahir. This view has also been related by a group of companions. Al-Bayhaqi relates in his Sunan al-Kubra from the riwayah of Muhammad bin 'Ajlan from 'Ubayd Allah bin Abi Rafi' who said, “ I saw Abu Sa'id al-Khudri, Jabir bin 'Abd Allah, 'Abd Allah bin 'Umar, Rafi' bin Khudayj, Abu Asyad al-Ansari, Ibn al-Akwa', and Abu Rafi' removing their moustaches such that it was shaven.” A there is some difference in this report, Muhammad bin 'Ajlan related it like this while others relate it from 'Uthman bin 'Abd Allah bin Abi Rafi', or it is said Ibn Rafi', and this Idhtirab alludes to the weakness of this report. And the chain going back to those companions who would cut their moustaches along the edge of their lip is free from Idhtirab so it is more preferable although it is an authenticated practice of Ibn 'Umar.
There is a third view on the issue and it is that one may choose between cutting it and shaving it and this view was related by Qadhi 'Iyadh. This view is the most fitting due to the various Ahadith collected and different practices of the companions. However, the practice of the majority is to cut it and this practice more preferable to follow.
And the evidence that shows that it is okay to leave some of the moustache is the hadith of Anas related by Muslim, “ the time in which we should cut out moustaches, pair our nails, pluck our armpits and shave our pubic hair has been set for us so that we do not leave these acts for more than forty nights.” What is obvious is that forty days after cutting the moustache or shaving it the hair will begin to grow over the lip.
The Ahl al-Dhahir, or at least some of them, held that it is obligatory to cut the moustache or to shave it. If it is obligatory to remove it, surely it would not be permissible to leave it for forty days such that the hair begins to grow over the lips and Allah Ta 'Ala knows best.
Written by 'Abd al-Rahim bin Hussain bin al-'Iraqi, praising Allah and praying and sending greetings upon our Nabi Muhammad and his family.
Monday, February 7, 2011
Saturday, February 5, 2011
The book of trade (from al-Yaqut al-Nafis)
بسم الله الرحمن الرحيم
The Book of Trade
based upon Sayyid Ahmad al-Shatiri's
al-Yaqut al-Nafis
Chapter 1
Sale (Bay')
Bay' lexically means to transact something for something else.
Bay' legally refers to an agreement consisting of a financial recompense permanently granting ownership of a particular item or something that can be utilized.
1.1
The Integrals of Bay'
The integrals of Bay' are three;
1.The buyer and seller
2.The price and the article purchased
3.The spoken form, which consists of the spoken offer and acceptance
1.2
The conditions of the buyer and seller
The conditions of the buyer and seller are four;
1.That he have an unrestriced right of disposal over his own property
2.That he not be unjustly coerced
3.If a Mushaf, Muslim slave or apostate who has not been emancipated is being transacted, it is necessary that the buyer is Muslim.
4.If weaponry is being sold, it is necessary that the buyer not be among those at war with the Muslims.
1.3
The conditions of the price and article purchased
The conditions of the price and article purchased are five;
1.That it be pure or is capable of being purified by washing
2.That it be useful
3.That it be deliverable
4.That it be the property of the seller
5.That it be known to both buyer and seller as to which particular item it is, how much it is and of what type.
1.4
The conditions of the spoken form
The conditions of the spoken form are thirteen;
1.That conversation extraneous to the agreement not intervene between the offer and acceptance.
2.That there not be a long interval between the offer and acceptance.
3.That both offer and acceptance correspond in meaning.
4.That neither offer nor acceptance is made conditional.
5.That the sale not be subject to time stipulation.
6.That nothing from the first part of the spoken form changes before the second, be it the offer or acceptance.
7.That it be said loud enough to be heard by someone in close proximity.
8.That they have full right to transact until the transaction is complete.
9.That it be through the use of a 2nd person pronoun.
10.That the respective parties conclude their spoken forms themselves.
11.That the initiator, be it the buyer or seller, mentions the price.
12.That the word “sale” is annexed to the form.
13.That the word is intended for it's meaning.
1.5
An example of Bay'
When Zayd says to 'Amr, “I sell you this house for 1,000 Dinars ,” and 'Amr says, “I accept”.
Chapter 2
Usurious gain (Riba)
Riba lexically means increment.
Riba legally refers to an agreement for a specific recompense whose equivalence to the merchandise is unknown according to the standards of law at the time of the transaction or in which the exchange of the two parties is delayed or one of them is delayed.
2.1
The ruling of Riba and when does it exist
Riba is considered unlawful and only exists in the exchange of gold and silver and human foodstuffs. Similarly, Riba is unlawful whenever any of the preconditions determining it's validity are un met.
2.2
The validity of exchanging gold, silver and foodstuffs for their like
In addition to the conditions of Bay', three more conditions exist in order for the exchange of gold for gold, silver for silver and foodstuff of the same type to be valid;
1.Immediacy
2.That the properties transacted be in the respective possession of the buyer and seller before parting company.
3.Exact equivalency in the amount
2.3
The validity of exchanging gold for silver, silver for gold and foodstuff of a different sort
The conditions for the validity of exchanging gold for silver, silver for gold and foodstuff of a different sort are two;
1.Immediacy
2.That the properties transacted be in the respective possession of the buyer and seller before parting company.
2.4
Examples of Riba
1.When Zayd says to 'Amr, “ I sell you this ring for twice it's weight in gold,” and 'Amr says, “I accept”.
2.When Zayd says to 'Amr, “ I sell you this freight of wheat for two freights of sorghum postponed till next month,” and 'Amr says, “I accept”.
3.When Zayd says to 'Amr, “ I sell you this freight of wheat for that freight of wheat,” and 'Amr says “I accept”, but they part ways before the properties are in their possession.
Chapter 3
Buying in advance (Salam)
Salam lexically means precipitance or to do something before it's appointed time.
Salam legally refers to the sale of described merchandise which under the seller's obligation and is enacted with the expression of Salam or Salaf.
3.1
The integrals of Salam
The integrals of Salam are five;
1.The buyer
2.The seller
3.The merchandise bought in advance
4.The price which the buyer pays in advance to the seller
5.The spoken form
3.2
The conditions for the validity of Salam
In addition to the conditions of Bay', six more conditions must be met in order for Salam to be valid;
1.That the price be put up
2.That the price of the merchandise is handed over when the agreement is made.
3.That the location to which the merchandise is to be delivered be clearly stipulated in instances where the buyer advances the price where it cannot be delivered or when the merchandise is deferred and transporting it to a certain location involves considerable difficulty.
4.That the seller is able to deliver the merchandise when the time comes.
5.That both buyer and seller and at least two upright people know the characteristics of the merchandise over which they may be at cross purposes by delineating it with clear specifications.
6.That the characteristics of the merchandise be described in a language known to both buyer and seller and at least two upright persons when the agreement is made.
3.3
An example of Salam
When Zayd says to 'Amr, “ I advance you 100 Dinars for a five year old slave who is five hand span tall, to be delivered at the beginning of such and such month at such and such place,” and 'Amr says, “Iaccept”.
Chapter 4
Putting up collateral (Rahn)
Rahn lexically means constancy
Rahn legally refers to putting up a piece of saleable property as security for a financial obligation to cover the amount should it prove impossible to pay.
4.1
The integrals of Rahn
The integrals of Rahn are four;
1.The collateral
2.The debt
3.The two transacting parties, I.e the person putting up the collateral and the person receiving it.
4.The spoken form
4.2
The conditions of collateral
The conditions of the collateral are two;
1.That it be a particular article
2.That the article is permissible to sell.
4.3
The conditions of debt
The conditions of the debt are four;
1.That it be a debt
2.That it be know to both parties as to how much it is and of what kind.
3.That is exist
4.That it be irrevocable or will eventually result in irrevocability on it's own.
4.4
The conditions of the transacting parties
The conditions of the transacting parties are two;
1.That they act willingly
2.That they have full right of disposal over their property
4.5
The conditions of the spoken form
The conditions of the spoken form of Rahn are the same as the conditions of the spoken form of Bay'.
4.6
An example of Rahn
When 'Amr has a 1,000 Dinar binding debt with Zayd and 'Amr says to Zayd, “ I put up my home as collateral for the 1,000 Dinars that I owe you, “ and Zayd says, “I accept”.
Chapter 5
Personal loans (Qardh)
Qardh lexically means to cutt off.
Qardh legally refers to loaning something to someone on the basis that he will return it's equal.
5.1
The integrals of Qardh
The integrals of Qardh are four;
1.The lender
2.The recipient
3.The loan
4.The spoken form
5.2
The conditions of the lender
The conditions of the lender are two;
1.That he act willingly
2.That he have full right of disposal over what he is lending.
5.3
The conditions of the recipient
The conditions of the recipient are two;
1.That he act willingly
2.That he have full right to transact
5.4
The condition of the loan
The condition of the loan is one;
1.That the loan be an article that may be bought in advance.
5.5
The conditions of the spoken form
The conditions of the spoken form of Qardh are the same as the conditions of the spoken form of Bay'.
5.6
An example of the spoken form
When Zayd says to 'Amr, “I loan you this Dinar,” and 'Amr says, “I accept”.
Chapter 6
Suspension from dealings (Hajr)
Hajr lexically means restriction.
Hajr legally refers to suspending certain individuals from specific transactions for a particular reason.
6.1
Types of suspension
Suspension is of two types;
1.That which has been established in the sacred law in interest of the suspended person, such as the suspension of wealth on the fool hardy person. A fool hardy person is that individual who is incapable of handling his own wealth.
2.That which has been established in the sacred law for the interests of others, such as the suspension of objects of material value on the bankrupt. A bankrupt person is that individual whose current binding debt to another person exceeds his own wealth.
6.2
An example of suspending the fool hardy
When 'Amr squanders his wealth after being financially competent and the judge says, “ I suspend 'Amr from transacting in his wealth”.
6.3
An example of suspending the bankrupt
When 'Amr owes Zayd 1,000 dinars, both current and binding and is in excess of 'Amr's wealth, and Zayd or 'Amr or both of them request from the judge that 'Amr be suspended from transacting and the judge says, “ I suspend 'Amr from transacting in his objects of material value”.
Chapter 7
Settlement (Sulh)
Sulh lexically means to severe a dispute.
Sulh legally refers to the contract by which the dispute is settled.
7.1
Types of Sulh
Sulh is of two types;
1.Settlement over a price reduction.
2.Settlement over a financial recompense.
The first type of Sulh refers to settlement from the plaintiff over some part of an article or debt, while the second type refers to settlement over an article, debt or something else.
7.2
The conditions for the validity of Sulh
The conditions for the validity of Sulh are two;
1.That it be preceeded by a dispute.
2.The confession of the oppossing party.
7.3
An example of Sulh
When Zayd charges 'Amr for a house or twenty dinars which is under his obligation and 'Amr denies it, thereafter 'Amr confesses and Zayd says to him, “ I settle with you for half of the this house or for this garment, or for ten dinars or for this garment”, and 'Amr says, “I accept”.
Chapter 8
Transferring a right to collect a debt (Hawalah)
To be continued Insha Allah....
The Book of Trade
based upon Sayyid Ahmad al-Shatiri's
al-Yaqut al-Nafis
Chapter 1
Sale (Bay')
Bay' lexically means to transact something for something else.
Bay' legally refers to an agreement consisting of a financial recompense permanently granting ownership of a particular item or something that can be utilized.
1.1
The Integrals of Bay'
The integrals of Bay' are three;
1.The buyer and seller
2.The price and the article purchased
3.The spoken form, which consists of the spoken offer and acceptance
1.2
The conditions of the buyer and seller
The conditions of the buyer and seller are four;
1.That he have an unrestriced right of disposal over his own property
2.That he not be unjustly coerced
3.If a Mushaf, Muslim slave or apostate who has not been emancipated is being transacted, it is necessary that the buyer is Muslim.
4.If weaponry is being sold, it is necessary that the buyer not be among those at war with the Muslims.
1.3
The conditions of the price and article purchased
The conditions of the price and article purchased are five;
1.That it be pure or is capable of being purified by washing
2.That it be useful
3.That it be deliverable
4.That it be the property of the seller
5.That it be known to both buyer and seller as to which particular item it is, how much it is and of what type.
1.4
The conditions of the spoken form
The conditions of the spoken form are thirteen;
1.That conversation extraneous to the agreement not intervene between the offer and acceptance.
2.That there not be a long interval between the offer and acceptance.
3.That both offer and acceptance correspond in meaning.
4.That neither offer nor acceptance is made conditional.
5.That the sale not be subject to time stipulation.
6.That nothing from the first part of the spoken form changes before the second, be it the offer or acceptance.
7.That it be said loud enough to be heard by someone in close proximity.
8.That they have full right to transact until the transaction is complete.
9.That it be through the use of a 2nd person pronoun.
10.That the respective parties conclude their spoken forms themselves.
11.That the initiator, be it the buyer or seller, mentions the price.
12.That the word “sale” is annexed to the form.
13.That the word is intended for it's meaning.
1.5
An example of Bay'
When Zayd says to 'Amr, “I sell you this house for 1,000 Dinars ,” and 'Amr says, “I accept”.
Chapter 2
Usurious gain (Riba)
Riba lexically means increment.
Riba legally refers to an agreement for a specific recompense whose equivalence to the merchandise is unknown according to the standards of law at the time of the transaction or in which the exchange of the two parties is delayed or one of them is delayed.
2.1
The ruling of Riba and when does it exist
Riba is considered unlawful and only exists in the exchange of gold and silver and human foodstuffs. Similarly, Riba is unlawful whenever any of the preconditions determining it's validity are un met.
2.2
The validity of exchanging gold, silver and foodstuffs for their like
In addition to the conditions of Bay', three more conditions exist in order for the exchange of gold for gold, silver for silver and foodstuff of the same type to be valid;
1.Immediacy
2.That the properties transacted be in the respective possession of the buyer and seller before parting company.
3.Exact equivalency in the amount
2.3
The validity of exchanging gold for silver, silver for gold and foodstuff of a different sort
The conditions for the validity of exchanging gold for silver, silver for gold and foodstuff of a different sort are two;
1.Immediacy
2.That the properties transacted be in the respective possession of the buyer and seller before parting company.
2.4
Examples of Riba
1.When Zayd says to 'Amr, “ I sell you this ring for twice it's weight in gold,” and 'Amr says, “I accept”.
2.When Zayd says to 'Amr, “ I sell you this freight of wheat for two freights of sorghum postponed till next month,” and 'Amr says, “I accept”.
3.When Zayd says to 'Amr, “ I sell you this freight of wheat for that freight of wheat,” and 'Amr says “I accept”, but they part ways before the properties are in their possession.
Chapter 3
Buying in advance (Salam)
Salam lexically means precipitance or to do something before it's appointed time.
Salam legally refers to the sale of described merchandise which under the seller's obligation and is enacted with the expression of Salam or Salaf.
3.1
The integrals of Salam
The integrals of Salam are five;
1.The buyer
2.The seller
3.The merchandise bought in advance
4.The price which the buyer pays in advance to the seller
5.The spoken form
3.2
The conditions for the validity of Salam
In addition to the conditions of Bay', six more conditions must be met in order for Salam to be valid;
1.That the price be put up
2.That the price of the merchandise is handed over when the agreement is made.
3.That the location to which the merchandise is to be delivered be clearly stipulated in instances where the buyer advances the price where it cannot be delivered or when the merchandise is deferred and transporting it to a certain location involves considerable difficulty.
4.That the seller is able to deliver the merchandise when the time comes.
5.That both buyer and seller and at least two upright people know the characteristics of the merchandise over which they may be at cross purposes by delineating it with clear specifications.
6.That the characteristics of the merchandise be described in a language known to both buyer and seller and at least two upright persons when the agreement is made.
3.3
An example of Salam
When Zayd says to 'Amr, “ I advance you 100 Dinars for a five year old slave who is five hand span tall, to be delivered at the beginning of such and such month at such and such place,” and 'Amr says, “Iaccept”.
Chapter 4
Putting up collateral (Rahn)
Rahn lexically means constancy
Rahn legally refers to putting up a piece of saleable property as security for a financial obligation to cover the amount should it prove impossible to pay.
4.1
The integrals of Rahn
The integrals of Rahn are four;
1.The collateral
2.The debt
3.The two transacting parties, I.e the person putting up the collateral and the person receiving it.
4.The spoken form
4.2
The conditions of collateral
The conditions of the collateral are two;
1.That it be a particular article
2.That the article is permissible to sell.
4.3
The conditions of debt
The conditions of the debt are four;
1.That it be a debt
2.That it be know to both parties as to how much it is and of what kind.
3.That is exist
4.That it be irrevocable or will eventually result in irrevocability on it's own.
4.4
The conditions of the transacting parties
The conditions of the transacting parties are two;
1.That they act willingly
2.That they have full right of disposal over their property
4.5
The conditions of the spoken form
The conditions of the spoken form of Rahn are the same as the conditions of the spoken form of Bay'.
4.6
An example of Rahn
When 'Amr has a 1,000 Dinar binding debt with Zayd and 'Amr says to Zayd, “ I put up my home as collateral for the 1,000 Dinars that I owe you, “ and Zayd says, “I accept”.
Chapter 5
Personal loans (Qardh)
Qardh lexically means to cutt off.
Qardh legally refers to loaning something to someone on the basis that he will return it's equal.
5.1
The integrals of Qardh
The integrals of Qardh are four;
1.The lender
2.The recipient
3.The loan
4.The spoken form
5.2
The conditions of the lender
The conditions of the lender are two;
1.That he act willingly
2.That he have full right of disposal over what he is lending.
5.3
The conditions of the recipient
The conditions of the recipient are two;
1.That he act willingly
2.That he have full right to transact
5.4
The condition of the loan
The condition of the loan is one;
1.That the loan be an article that may be bought in advance.
5.5
The conditions of the spoken form
The conditions of the spoken form of Qardh are the same as the conditions of the spoken form of Bay'.
5.6
An example of the spoken form
When Zayd says to 'Amr, “I loan you this Dinar,” and 'Amr says, “I accept”.
Chapter 6
Suspension from dealings (Hajr)
Hajr lexically means restriction.
Hajr legally refers to suspending certain individuals from specific transactions for a particular reason.
6.1
Types of suspension
Suspension is of two types;
1.That which has been established in the sacred law in interest of the suspended person, such as the suspension of wealth on the fool hardy person. A fool hardy person is that individual who is incapable of handling his own wealth.
2.That which has been established in the sacred law for the interests of others, such as the suspension of objects of material value on the bankrupt. A bankrupt person is that individual whose current binding debt to another person exceeds his own wealth.
6.2
An example of suspending the fool hardy
When 'Amr squanders his wealth after being financially competent and the judge says, “ I suspend 'Amr from transacting in his wealth”.
6.3
An example of suspending the bankrupt
When 'Amr owes Zayd 1,000 dinars, both current and binding and is in excess of 'Amr's wealth, and Zayd or 'Amr or both of them request from the judge that 'Amr be suspended from transacting and the judge says, “ I suspend 'Amr from transacting in his objects of material value”.
Chapter 7
Settlement (Sulh)
Sulh lexically means to severe a dispute.
Sulh legally refers to the contract by which the dispute is settled.
7.1
Types of Sulh
Sulh is of two types;
1.Settlement over a price reduction.
2.Settlement over a financial recompense.
The first type of Sulh refers to settlement from the plaintiff over some part of an article or debt, while the second type refers to settlement over an article, debt or something else.
7.2
The conditions for the validity of Sulh
The conditions for the validity of Sulh are two;
1.That it be preceeded by a dispute.
2.The confession of the oppossing party.
7.3
An example of Sulh
When Zayd charges 'Amr for a house or twenty dinars which is under his obligation and 'Amr denies it, thereafter 'Amr confesses and Zayd says to him, “ I settle with you for half of the this house or for this garment, or for ten dinars or for this garment”, and 'Amr says, “I accept”.
Chapter 8
Transferring a right to collect a debt (Hawalah)
To be continued Insha Allah....
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