Transactions » Rules regarding purchase and sale
2059. It is recommended for a business man to learn the rules of daily transactions. In fact, if due to ignorance, he may necessarily contradict the laws of Shariah, then it is obligatory upon him to learn. Imam Ja'far Sadiq (A.S.) is reported to have said: "A person who wishes to engage in business, should learn its rules and laws, and if he makes any transaction without learning them, he may suffer because of entering into a void or doubtful transactions".
2060. If a person is not aware, because of ignorance about the relevant laws, whether the transaction made by him is valid or void, he cannot have any discretion over the property which he has acquired, unless he knows that the other party has no objection to it. In any case, the transaction remains void.
2061. If a person does not possess any wealth, and it is obligatory on him to maintain his dependents, like, his wife and children, he should start earning. Moreover, to earn is recommended for Mustahab acts like providing better means of livelihood to one's family, and helping the poor persons.
Transactions » Mustahab acts
The following are Mustahab in connection with sale and purchase:
One should not discriminate between various buyers while charging for the commodities, except in the case of poor people.
One should not be adamant about the prices, unless one feels that one is being duped or cheated.
One should give a little more of the thing one sells, and should take a little less of the thing which one buys.
If the buyer regrets having purchased something, and wishes to return it, the seller should accept it back.
Transactions » Makrooh transactions
2062. The following are Makrooh transactions:
To sell the land, except when one wishes to purchase another land with its proceeds.
To be a butcher.
To make shroud selling one's vocation.
To enter into transaction with people of low character.
To transact a deal between the Fajr prayers and sunrise.
To make it one's vocation to buy or sell wheat and barley, or other similar commodities.
To interfere in a deal being carried out by a Muslim, and make one's own offer.
Transactions » Haraam transactions
2063. There are many Haraam deals and businesses, some are mentioned below:
To sale and purchase intoxicating beverages, non-hunting dogs, pigs, an unslaughtered carcass (as a precaution). Besides, if a permissible use of Najisul Ayn is possible, like, excrement and faeces being converted to manure or fertilisers, its transaction is permitted, but as a precaution, such sale and purchase should be avoided.
Sale and purchase of usurped property.
As a precaution, it is haraam to sell and purchase those things which are not usually considered to be merchandise, like, the sale and purchase of wild beasts, if it does not involve any substantial gain.
Any transaction which involves interest.
Sale and purchase of those things which are usually utilised for haraam acts only, like, gambling tools.
A transaction which involves fraud or adulteration, like, when one commodity is mixed with another, and it is not possible to detect the adulteration, nor does the seller inform the buyer about it, like, to sell ghee mixed with fat. This act is called cheating (ghish) or adulteration. The holy Prophet of Islam (s.a.w.a) said: "If a person makes a deceitful transaction with the Muslims, or puts them to a loss, or cheats them, he is not one of my followers. And when a person cheats his fellow Muslim (i.e. sells him an adulterated commodity), Allah deprives him of Blessings in his livelihood, closes the means of his earnings, and leaves him to himself."
2064. There is no harm in selling a Pak thing which has become najis, but can be made Pak by washing it. And if it cannot be made Pak with water, and its use does not require it to be Pak, like some oils, its sale is permissible. In fact, even if its use requires it to be Pak, if it has substantial halal benefit, its sale is permitted.
2065. If a person wants to sell a najis thing, he should inform the buyer about it, because by not telling him, he might do something contrary to the rule of Shariah. For example, if he sells him najis water which the buyer may require for Wudhu or Ghusl, and to offer his obligatory prayers, or he sells him something which he uses as food or drink - in all such cases, the seller should inform the buyer. Of course, if the seller knows that it is no use informing the buyer who is careless, and does not care about Taharat or Najasat, then it is not necessary to inform.
2066. Although the purchase and sale of najis medicines for internal or external use is permissible, the buyer should be informed about it in situations explained in the foregoing rule no. 2065.
2067. There is no objection to selling or buying the oils which are imported from non-Islamic countries, if it is not known to be najis. And as for the fat which is obtained from a dead animal, if there is a probability that it belongs to an animal which has been slaughtered according to Islamic law, it will be deemed Pak, and its sale and purchase will be permissible, even if it is acquired from a non-Muslim or is a imported from non-Islamic countries. But it is haraam to eat it, and it is necessary for the seller to inform the buyer about the situation, so that he does not commit anything contrary to his religious responsibility.
2068. If a fox, or any other such animal, is not slaughtered according to religious law, or dies a natural death, it is haraam to purchase or sell its hide, as a precaution.
2069. The purchase and sale of hide and skin which is imported from a non-Islamic country, or is bought from a non-Muslim, is permissible provided that one feels strongly that the animal was most probably slaughtered according to Islamic law. And, namaaz with it will be in order.
2070. The fat obtained from a dead animal, and the hide obtained from a Muslim, when one knows that the Muslim has obtained it from a non-Muslim, without investigating whether or not the animal has been slaughtered according to Islamic law, is Pak, and its sale and purchase permissible. But it is not permissible to eat it.
2071. Transaction of intoxicating drinks is haraam and void.
2072. Sale of usurped property is void, and the seller should return to the buyer the money taken from him.
2073. If a buyer is serious about a transaction, but his intention is not to pay the price of the commodity being purchased by him, this intention will not affect the validity of the transaction, though it is absolutely necessary that he should pay the money to the seller.
2074. If a person has purchased a commodity on credit, and wishes to pay its price later from his haraam earning or wealth, the transaction will be valid, but, he will have to pay the amount which he owes from halal property, in order to be absolved of his responsibility.
2075. Purchase and sale of instruments of entertainment like, guitar, lute and harmonium etc., is haraam, and as a precaution, the same rule applies to the small musical instruments made as toys for the children. However, there is no harm in selling and purchasing instruments of common use, like, radio and tape-recorder, provided that it is not intended to use it for haraam purposes.
2076. If a thing which can be used for halal purposes is sold with the intention of putting it to haraam use - for example, if grapes are sold so that wine may be prepared with them, the transaction is haraam, and as a precaution the deal is void. However, if the seller does not sell it with that Niyyat, but only knows that the buyer will prepare wine with the grapes, the transaction will be in order.
2077. Making a human sculpture or that of an animal, is haraam, but there is no harm in purchasing and selling it, though as a precaution, it should be avoided. However, painting human portraits or animals is permissible.
2078. It is haraam to purchase a thing which has been acquired by means of gambling, theft, or a void transaction, and if a person buys such a thing from a seller, he should return it to its original owner.
2079. If a person sells ghee mixed with fat and specifies it, for example, he says: "I am selling 3 kilos of ghee" - the transaction will be void if the quantity of fat is more, to the extent that it cannot be called ghee. But if the quantity of fat is small, so that it can just be classified as ghee mixed with fat, the transaction will be valid. But the buyer has a right of refusal, based on the deficiency in the quality, and can therefore cancel the deal and ask for refund.
And if ghee and fat are distinct from each other, the deal covering the fat will be void, and the seller will have to refund the price of that fat, and keep the fat for himself. But in this case also, the buyer has a right of cancelling the transaction of pure ghee which is in it. Where the seller does not say that he is selling a particular thing, and just sells, say, 3 kilos of ghee he possesses, and if it turns out to be ghee mixed with fat, the buyer can return it, and ask for pure ghee.
2080. If a seller sells a commodity which is sold by weight or measurement, at a higher rate against the same commodity, like, if he sells 3 kilos of wheat for 5 kilos of wheat, it is usury and, therefore, haraam. In fact, if one of the two kinds of same commodity is faultless, and the other is defective, or one is superior and the other is inferior, or if their prices differ, and the seller asks for more than the quantity he gives, even then it is usury and haraam. Hence, if a person gives unbroken copper or brass and takes more of broken copper and brass, or gives a good quality of rice, and asks for more of inferior kind of rice instead, or gives manufactured gold and takes a larger quantity of raw gold, it is usury and haraam.
2081. If the thing, which he asks for in addition, is different from the commodity which he sells, like, if he sells 3 kilos of wheat against 3 kilos of wheat and one dirham cash, even then it is usury and haraam. In fact, if he does not take anything in excess, but imposes the condition that the buyer would render some service to him, it is also usury and haraam.
2082. If the person who is giving less quantity of a commodity, supplements it with some other thing, for example, if he sells 3 kilos of wheat and one handkerchief for 5 kilos of wheat, there is no harm in it, provided that the intention is that the handkerchief is for the excess he is receiving, and also that the transaction is not on credit. And if both the parties supplement the commodity with something, like 3 kilos of wheat with a handkerchief is sold for 3 1/2 kilos and a handkerchief, there is no objection to it, provided that the intention is that half kilo of wheat with the handkerchief on one side, was given for a handkerchief on the other.
2083. If a person sells something by measuring in meter or yard, like, cloth, or something which is sold by counting like, eggs and walnuts, and asks for more instead, there is no objection, except when the commodity exchanged are of the same kind and the transaction is on credit, then it is not permissible. For example, if he gives ten eggs on a condition that he should receive eleven eggs after a month, it is a void and haraam transaction. In matters of the currency notes, a person can sell one type of it for another, like toman against dinar or dollar, on credit, and on condition to receive more. But if he sells toman for toman, expecting more, then that transaction should not be on credit; otherwise it will be void and haraam. For example, if a person gives 100 toman cash, on a condition that after six months he should be given 110 toman, that is void and haraam.
2084. If a commodity is sold in most of the cities by weight or measurement, and in some cities by counting, there is no objection if that commodity is sold against the same commodity at a higher rate, in the city where it is sold by counting. Similarly, if the cities are different, and if it cannot be said that the majority of the cities sell the commodity by weight or measurement or by counting, every city will be governed by the custom prevailing in it.
2085. In commodities which are sold by weight or measurement, if a person sells a commodity in exchange of something which does not belong to the same category, and if the deal is not on credit, he can take more. But if it is on credit, it is not permissible. Hence, if he sells one kilo of rice for two kilos of wheat on a month's credit, that transaction is void.
2086. If a ripe fruit is exchanged for the raw fruit of the same type, one cannot take more. And Fuqaha have commonly held that if a commodity taken in exchange is from the same origin, one should not take more. For example, if someone sells one kilo of ghee made from cow milk for one and half kilos of cheese made from cow milk, it will be usury and therefore haraam. But this generalisation is a matter of Ishkal.
2087. From the point of usury, wheat and barley are commodities of one and the same category. Hence, if a person gives 3 kilos of wheat and takes in exchange thereof, 31/2 kilos of barley, it is usury and haraam. And if, a person purchases 30 kilos of barley, on the condition that he would give in exchange 30 kilos of wheat at the time of its harvest, it is haraam, because he has taken barley on the spot and will give wheat some time later, and this amounts to taking something in excess, and therefore haraam.
2088. Father and son, husband and wife can take interest from each other. Similarly, a Muslim can take interest from a non-Muslim who is not under protection of Islam. But a transaction involving interest with a non-Muslim who is under protection of Islam, is haraam. But after the transaction is completed, and the deal is closed, if payment of interest is permissible in the religion of that non-Muslim, a Muslim can receive interest from him.
Transactions » Conditions of a seller and a buyer
2089. There are six conditions for the sellers and buyers:
They should be baligh.
They should be sane.
They should not be impudent, that is, they should not be squandering their wealth.
They should have a serious and genuine intention to sell and purchase a commodity. Hence, if a person says jokingly, that he has sold his property, that transaction is void.
They have not been forced to sell and buy.
They should be the rightful owners of the commodity which they wish to sell, or give in exchange. Rules relating to these will be explained in the following:
2090. To conduct business with a child who is not baligh, and who makes a deal independently, is void, except in things of small value, in which transactions are normally conducted with the children who can discern. But if a discerning child is accompanied by his guardian, and he pronounces the confirmation of the deal, then the transaction is valid in every situation. In fact, if the commodity or money is the property of another person, and that child sells that commodity or purchases something with that money, as an agent of the owner, the transaction is in order, even if the discerning child may be possessing that property or money on his own. And similarly, if the child is a medium of payment to the seller, and carrying the commodity to the buyer, or giving the commodity to the buyer and carrying the money to the seller, the transaction is valid, even if the child may not be discerning (i.e. one who can distinguish between good and bad) because in reality, two adult persons have entered into the contract.
2091. If a person buys something from a child who is not baligh, or sells something to him, in a situation when the transaction is not valid, he should give the commodity or money back to his guardian, if it was the child's own property, or to its owner, if it was the property of someone else, or should obtain the owner's agreement. But if he does not know its owner, and has also no means to identify him, he should give the thing taken from the child to a poor on behalf of its owner as Radde Mazalim, and in so doing, he should, as an obligatory precaution, seek the Mujtahid's permission.
2092. If a person concludes a transaction with a discerning child (i.e. one who can distinguish between good and evil), in a situation when it is not valid to conclude a transaction with him, and the commodity or money which he gives to the child is lost, he can claim it from the child after he attains the age of Bulugh, or from his guardian. But if the child is not discerning, he will have no right to claim anything from him.
2093. If a buyer or a seller is forced to conclude a transaction, and he concedes after the transaction is concluded (e.g. if he says: I agree), the transaction is valid. However, the recommended precaution is that the formula of the transaction should be repeated.
2094. If a person sells the property of another person without his consent, and if the owner of the property is not agreeable to the sale, and does not grant permission, the transaction is void.
2095. The father or paternal grandfather of a child and the executor of the father and the executor of the paternal grandfather of a child, can sell the property of the child, and if the circumstances demand, an Adil Mujtahid can also sell the property of an insane person, or an orphan, or one who has disappeared.
2096. If a person usurps some property, and sells it and after the sale, the owner of the property allows the transaction, the transaction is valid, and the thing which the usurper sold to the buyer and the profits accrued to it, from the time of transaction, belongs to the buyer. Similarly, the thing given by the buyer, and the profits accrued to it from the time of the transaction, belong to the person whose property was usurped.
2097. If a person usurps some property, and sells it with the intention that the sale proceeds should belong to him, and if the owner of the property allows the transaction, the transaction is valid, but the sale proceeds will belong to the owner, and not to the usurper.
Transactions » Conditions regarding commodity and what is obtained in exchange
2098. The commodity which is sold, and the thing which is received in exchange, should fulfil five conditions:
Its quantity should be known by means of weight or measure or counting etc.
It should be transferable, otherwise the deal will be void, except when a transferable object is supplemented to it. But if the buyer can himself manage to find the thing he has bought, even if the seller is unable to hand it over, the deal will be valid. For example, if a person sells a horse which has run away, and the buyer can find it, the transaction will be valid, and there will be no need to supplement it with any transferable object.
Those details of the commodity, and the thing accepted in exchange, which influence the minds of the people in deciding about the transaction, must be clearly described.
The ownership should be unconditional, in a manner that, once it is out of his ownership, he foresakes all his rights over it.
The seller should sell the commodity itself and not its profit. Hence, if he sells one year's profit of a house, it will not be in order. But, if a buyer gives profit of his property in exchange, like, if he buys a carpet from someone and in lieu thereof gives him the profit of his house for one year, there is no harm in it. Details of these will come later.
2099. If a commodity is sold in a city by weight or measurement, one should purchase that commodity in that city by weight or measure. But if the same commodity is sold in another city at sight, one can purchase it in that city at sight.
2100. A commodity which is normally sold by weighing, can also be sold by measure. For example, if a person wants to sell ten kilos of wheat, he should fill a measure which takes one kilo of wheat, and give ten such measures to the buyer.
2101. If the transaction has become void because of the absence of any of the aforesaid conditions, except the fourth - but the buyer and the seller agree to have the right of discretion over their exchanged commodities, there is no objection if they do so.
2102. The transaction of a Waqf property is void. However, if it is so much impaired, or is on the verge of being impaired, that it can not be possibly used for the purpose for which it was dedicated, like, if the mat of a mosque is so torn, that it is not possible to offer prayers on it, it can be sold by the trustee or someone in his position. And if possible, as a precaution, its sale proceeds should be spent in the same mosque, for a purpose akin to the aim of the person who originally waqfed it.
2103. When serious differences arise between the persons for whom waqf is made, to the extent that it may be feared that if the waqfed property is not sold, property or life of some person is endangered, some Fuqaha have ruled that the property may be sold off, and the sale proceeds be spent for a purpose akin to the object of the person who originally made the waqf. But this rule is not devoid of Ishkal. But if the person who made waqf made a condition that it be sold when advisable, then there will be no objection to it being sold off.
2104. There is no harm in buying and selling a property which has been leased out to another person. However, the leaseholder will be entitled to utilise the property during the period of lease. And if the buyer does not know that the property has been leased out, or if he purchases it under the impression that the period of lease is short, he can cancel the transaction when he comes to know of the true situation.
Transactions » Formula of purchase and sale
2105. It is not necessary that the formula of purchase and sale be pronounced in Arabic. For example, if the seller says in any language: "I have sold this property in exchange of this money", and the buyer says: "I accept it", the transaction is in order. However, it is necessary that the buyer and the seller should have Niyyat of Insha' - which means that by uttering the above mentioned words, they are genuinely intent upon buying and selling.
2106. If the formula is not uttered at the time of transaction, but the seller hands over to the buyer that which he owns, in exchange of the property which he takes from the buyer; the transaction is in order, and both of them become the owners.
Transactions » Purchase and sale of fruits
2107. It is in order to sell the fruits before plucking them, when the flowers have fallen, and when the seeds have been formed, provided that, it is also known that it is saved from harm or decay, and its quantity can be fairly estimated. In fact, when it is still not known whether the formed seeds have passed the stage of any harm or decay, if the fruit sold is two years old or more, or it is just the quantity which has presently grown, and it has a substantial value, the sale transaction will be valid. Similarly, if other produce grown from earth or anything else is sold together with the fruits, the transaction will be valid. But, as an obligatory precaution, this supplement must be such that if the seeds fail to develop into fully grown fruits, the capital invested by the buyer is not lost.
2108. It is also permissible to sell the fruits growing on the tree, which have not yet developed the seed, and whose flowers have not yet fallen. But it must be sold along with something which grows from earth (like vegetables) so that, as explained in the foregoing rule, the buyer sustains no loss. Or the fruit must be more than one year old.
2109. There is no harm in selling the dates which have become yellow or red while they are still on the tree, but the dates of the same tree or any other should not be exchanged for them. But, if a person owns a date tree in the house or garden of another person, and if the quantity of the dates of that tree is estimated, and the owner of the tree sells them to the owner of the house or the garden, and dates are exchanged in lieu of them, there is no harm in it.
2110. There is no harm in selling cucumber, brinjals, vegetables etc. which are picked several times during a year, provided that, they have grown and are visible and provided that, it is agreed as to how many times during the year the buyer would pick them. But if they have not grown nor can they be seen, their sale is a matter of Ishkal.
2111. If after the ears of wheat have developed seeds, they are sold for the wheat obtained from the same harvest, or from other ears, the transaction will not be valid.
Transactions » Cash and credit
2112. If a commodity is sold for cash, the buyer and seller can, after concluding the transaction, demand the commodity and money from each other and take possession of it. The possession of immovable things, like, house, land, etc. and the moveable things, like, carpets, dress etc. means that the original owner renounces all his right over them, and hands it over to the opposite party with full right of discretion over it. In practice, the mode of delivery may vary according to the situation.
2113. When something is sold on credit, the period should be fixed clearly. If, a commodity is sold with a condition that the seller would receive the price at the time of harvest, the transaction is void, because the period of credit has not been specified clearly.
2114. If a commodity is sold on credit, the seller cannot demand what he has to receive from the buyer before the stipulated period is over. However, if the buyer dies, and has some property of his own, the seller can claim the amount due to him from the heirs of the buyer, before the stipulated period is over.
2115. If a person sells a commodity on credit, he can demand the debt from the buyer after the expiry of the stipulated period. However, if the buyer cannot pay it, he should give him extension of time, or rescind the transaction, and take back the commodity, if it exists.
2116. If a person gives a quantity of some commodity on credit to a person who does not know its price, and the seller does not tell him its price, the transaction is void. However, if he gives it on credit to a person who knows its cash price, and charges a higher price - for example, if he tells him: "I shall charge ten cents per dollar more on the commodity, which I am giving to you on credit, as compared to what I charge against cash" - and the buyer accepts this condition, there is no harm in it.
2117. If a person sells a commodity on credit, and stipulates a period for receiving its price, and for example, after the passage of half of the stipulated period, he reduces his claim and takes the balance in cash, there is no harm in it.
Transactions » Contract by advance payment
2118. Purchase by advance payment means that a buyer pays the price of a commodity, and takes its possession later. Hence, the transaction will be in order, if, for example, the buyer says: "I am paying this amount so that I may take possession of such and such commodity after six months", and the seller says, "I agree", or the seller accepts the money and says: "I have sold such and such thing and will deliver it after six months".
2119. If a person sells, on advance payment basis, coins which are of gold and silver, and takes gold or silver coins in exchange for them, the transaction is void. But, if he sells a commodity or money which is not of gold and silver, and takes another commodity, or gold or silver money in exchange, the transaction is in order if it conforms with the seventh condition of the rule which follows. And the recommended precaution is that one should take money and not other commodity in exchange for the commodity sold.
2120. There are seven conditions of advance payment contract:
The characteristic, due to which the price of a commodity may vary, should be specified. However, it is not necessary to be very precise, it will be sufficient if it can be said that its particulars are known.
Before the buyer and the seller separate from each other, the buyer should hand over full amount to the seller, or if the seller is indebted by way of cash to the buyer for an equivalent amount, the buyer can adjust it against the price of the commodity, if the seller agrees to it. And if the buyer pays certain percentage of the price of that commodity to the seller, the transaction will no doubt be valid equal to that percentage, but the seller can rescind the transaction.
The time-limit should be stipulated exactly. If the seller says that he would deliver the commodity when the crop is harvested, the transaction is void, because, in this case, the period has not been specified exactly.
A time should be fixed for the delivery of the commodity when the seller is able to deliver it, regardless of whether the commodity is scarce or not.
The place of delivery should be specified. However, if that place becomes known from their conversation, it is not necessary that its name should be mentioned.
The weight or measure of the commodity should be specified. And there is no harm in selling through advance payment contract, a commodity which is usually bought and sold by sight. However, for such a deal, one must be careful that the difference in the quality of individual items of the commodity must be negligibly small, like in the cases of walnuts and eggs.
If the commodity sold belongs to the category which is sold by way of weight and measure, then it must not be exchanged for the same commodity. In fact, as an obligatory precaution, it must not be exchanged for any other commodity which is sold by weight and measure. And if the commodity sold is the one which is sold by counting, then as a precaution, it is not permissible to exchange it for the same commodity in increased number.
Transactions » Laws regarding advance payment contract
2121. If a person purchases a commodity by way of advance payment, he is not entitled, till the expiry of the stipulated period of delivery, to sell it to anyone except the seller, but there is no harm in selling it to any person after the expiry of the stipulated period, even if he may not have taken possession of it yet. However, it is not permissible to sell cereals like wheat and barley, and other commodities which are sold by weighing or measuring other than fruits, unless they are in possession, except that the buyer wishes to sell them at cost or lower price.
2122. In advance payment purchase transaction, when the seller delivers at the stipulated time the commodity which he had sold, the buyer should accept it. Also, if the seller gives something better in quality than the one agreed upon, and if it is reckoned to belong to the same type, the buyer should accept it.
2123. If the commodity which the seller delivers is of inferior quality to that which was agreed upon, the buyer can reject it.
2124. If the seller delivers a commodity different from the one he had sold to the buyer, and the buyer agrees to accept it, there will be no objection to it.
2125. If a commodity which was sold by advance payment becomes scarce at the time when it should be delivered, and the seller cannot supply it, the buyer may wait till the seller procures it, or even cancel the transaction, and take the refund, but as a precaution, he cannot sell it back to the seller at a profit.
2126. If a person sells a commodity promising to deliver it after some time, and also agrees to take deferred payment for it, the transaction is void.
Transactions » Sale of gold and silver against gold and silver
2127. If gold is sold against gold, and silver is sold against silver, whether it is in the form of coins or otherwise, if the weight of one of them is more than that of the other, the transaction is haraam and void.
2128. If gold is sold against silver, or silver is sold against gold, the transaction is valid, and it is not necessary that their weight be equal, but if it is sold on credit or stipulated time, the transaction will be void.
2129. If gold or silver is sold against gold or silver, it is necessary for the seller and the buyer that before they separated from each other, they should deliver the commodity, and its exchange to each other. And if even a part of the thing about which agreement has been made, is not delivered to the person concerned, the transaction becomes void.
2130. If either the seller or the buyer delivers the stock in full as agreed, but the other person delivers only a part of his stock, and they separate from each other, the transaction with regard to the part exchanged will be valid, but the person who has not received the entire stock can cancel the transaction.
2131. If silver dust from a mine is sold against pure silver, and gold dust from a mine is sold against pure gold, the transaction is void, unless one is sure that the quality of silver dust is equal to the quantity of pure silver. However, there is no harm in selling silver dust against gold, or gold dust against silver, as mentioned earlier.
Transactions » Circumstances in which one has a right to cancel a transaction
2132. The right to cancel a transaction is called Khiyar. The seller and the buyer can cancel a transaction in the following eleven cases:
If the parties to the transaction have not parted from each other, though they may have left the place of agreement. This is called Khiyarul majlis.
If the buyer or the seller has been cheated in a sale transaction, or in any other sort of deal, either of the parties has been deceived, they have a right to call off the deal. This is called Khiyar of Ghabn. This Khiyar stems from the fact that each side in any deal wishes to ensure that he does not receive less than what he has given, and if he has been cheated, he should have the right to back out. But if one has in mind that if he is given less than what he has delivered, or is paid less than what he deserves, he will ask for the difference, he should first demand the difference before cancelling the deal.
If while entering into a transaction, it is agreed that up to a stipulated time, one or both the parties will be entitled to cancel the transaction. This is called Khiyarush Shart.
If one of the parties presents his commodity as better than it actually is, and thereby attracts the buyer, or makes him more enthusiastic about it. This is called Khiyar tadlis.
If one of the parties to the transaction stipulates that the other would perform a certain job, and that condition is not fulfilled. Or if it is stipulated that the commodity will be of particular quality, and the commodity supplied may be lacking in that quality. In these cases, the party which laid the condition can cancel the transaction. This is called Khiyar takhallufish shart.
If the commodity supplied is defective. This is called Khiyarul 'aib.
If it transpires that a quality of the commodity under transaction is the property of a third person. In that case, if the owner of that part is not willing to sell it, the buyer can cancel the transaction, or can claim back from the seller the replacement of that part, if he has already paid for it. This is called Khiyarush shirkat.
If the owner describes certain qualities of his commodity which the buyer has not seen, and then the buyer realises that the commodity is not as it was described, the buyer can rescind the deal.
Similarly, if the buyer may have seen the commodity sometimes back, and purchases it thinking that the qualities it had then will be still existing, and if he finds that those qualities have disappeared, he has a right to cancel the deal.
If the buyer does not pay for the commodity he has bought for three days, and the seller has not yet handed over to him the commodity, the seller can cancel the transaction.But this is in the circumstance when the seller had agreed to allow him time for deferred payment, without fixing the period. And if the seller had not at all agreed on deferred payment, he can cancel the transaction at once, without any delay. And if he had allowed him more than three days' credit, then the seller cannot rescind the deal before the termination of three days. If the commodity is perishable, like fruits, which would perish or decay if left for one day, and the buyer without any prior condition, does not pay till nightfall, the seller can cancel the transaction. This is called Khiyarut ta'khir.
A person who buys an animal, can cancel the transaction within three days. And if a person sold his commodity in exchange for an animal, he can also cancel the transaction within three days. This is called Khiyarul haywan.
If the seller is unable to deliver possession of the thing sold by him, like, if the horse sold by him runs away and disappears, he can cancel the transaction. This is called Khiyarut ta'azzurit taslim.
2133. If a buyer does not know the price of the commodity, or was unconcerned about it at the time of purchase, and buys the thing for higher than usual price, he can cancel the transaction if the difference of price is substantial, and if the difference is established at the time of abrogation. Otherwise, the buyer cannot cancel the deal. Similarly, if the seller does not know the price of the commodity, or was headless about it at the time of selling, and sells the thing at a cheaper price, he can cancel the deal if the difference is substantial and if other conditions mentioned above obtain.
2134. In a transaction of "Conditional sale", for example, a house worth $2000 is sold for $1000, and it is agreed that if the seller returns the money within a stipulated period, he can cancel the transaction, the transaction is in order, provided that the buyer and the seller had genuine intention of purchase and sale.
2135. In a transaction of "Conditional sale", if the seller is sure that even if he did not return the money within the stipulated time, the buyer will return the property to him, the transaction is in order. However, if he does not return the money within the stipulated time, he is not entitled to demand the return of the property from the buyer. And if the buyer dies, he (the seller) cannot demand the return of the property from his heirs.
2136. If a person mixes inferior tea with superior tea, and sells it as a superior tea, the buyer can cancel the transaction.
2137. If a buyer finds out that the thing purchased by him is defective, like, if he purchases an animal and finds that (after purchasing it) it is blind of an eye, and this defect existed before the transaction was made, but he was not aware of it, he can cancel the transaction and return the animal to the seller. And if it is not possible to return it, for example, if some change has taken place in it, or it has been used in such a manner that it cannot be returned, the difference between the value of the sound property and the defective property should be assessed, and the buyer should get refund in that proportion of the amount paid by him to the seller. For example, he has purchased something for $4 and finds out that it is defective. Now the price of the thing in perfect, faultless state is $8 and that of deficient is $6, the difference between these two prices will be assessed at 25%. The buyer will be paid 25% of what he actually paid, and that will be one dollar.
2138. If a seller comes to know that what he received in exchange for his property is defective, and that defect was present in it before the transaction, but he was not aware of it, he can cancel the transaction, and can return it to its owner. And if he cannot return it due to change or disposal having taken place, he can obtain the difference between the faultless and the defective thing, according to the above mentioned rule.
2139. If a defect takes place in the property after concluding the transaction, but before delivering it, the buyer can cancel the transaction. Similarly, if some defect is found in what is taken in exchange for the property, after concluding the transaction but before delivering it, the seller can cancel the transaction. But if both sides wish to settle by taking the difference between the prices, it is permissible, if returning of the articles involved is not possible.
2140. If a person comes to know about the defect after concluding the transaction, it is necessary for him to cancel the transaction at once; and if he delays for unusually long time, he cannot cancel the transaction. Of course, various circumstances must be taken into consideration for the delay.
2141. If a person comes to know about the defect in a commodity after purchasing it, he can cancel the transaction even if the seller is not present. And the same order applies to all transactions involving the options.
2142. In the following four cases the buyer cannot cancel the transaction because of defect in the property purchased by him, nor can he claim the difference between the prices:
If at the time of purchasing the property, he is aware of the defect in it.
If he does not object to the defect in the property.
If at the time of concluding the contract, he says: "Even if the property has a defect I will neither return it nor claim the difference between the prices".
If at the time of concluding the contract, the seller says: "I sell this property with whatever defect it may have". But, if he specifies a defect and says: "I am selling this property with this defect", and it transpires later that it has some other defect as well, which he did not mention, the buyer can return the property due to that defect, and if he cannot return it, he can take the difference between the prices.
2143. If a buyer knows that there is a defect in the property, and after taking possession of it another defect appears in it, he cannot cancel the transaction, but he can take the difference between the prices of the defective and the faultless property. But, if he purchases a defective animal, and before the expiry of the period of Khiyar (i.e. option to cancel a transaction) which is three days, another defect appears in the animal, the buyer can return it, even if he may have taken delivery of it. And if only the buyer was given the option to cancel the deal within a fixed period, and another defect appears in the animal during that period, the buyer can cancel the transaction, even if he may have taken delivery of the animal.
2144. If a person owns some property which he himself has not seen, but another person has described its particular to him, and he mentions the same particulars to the buyer and sells the property to him. Later on, he learns after selling that the property was better than what he knew about it, he can cancel the transaction.
Transactions » Miscellaneous rules
2145. If a seller informs the buyer about his cost price of a commodity, he should tell him about all factors which would affect the rise or fall in the price of the commodity, even if he may sell it at the same price (i.e. at the cost price) or at a price less than that; for example, he should tell the buyer whether he has purchased the property against cash payment or on credit. And if he does not give the particulars of the property, and the buyer knows about them later, he can cancel the transaction.
2146. If a person gives a commodity to another person, and fixes its price and says: "Sell this commodity at this price, and the more you sell, you will be paid your commission." If he sells the commodity for higher price, the excess of money realised will be that of the owner, and he will be entitled only to the commission from the owner. But if the arrangement is by way of granting a reward, when the owner says: "If you sell this commodity at a price higher than that, the excess of proceeds will be your property" there is no harm in it.
2147. If a butcher sells the meat of a female animal saying that it is the meat of a male animal, he commits a sin. Hence, if he falsely specifies the meat saying: "I am selling this meat of a male animal" the buyer can cancel the transaction. And in case, he does not specify it, the butcher must supply the meat of a male animal, if the buyer is not willing to accept the meat which has been given to him.
2148. If a buyer tells the draper that he wants a cloth of fast colour, and the draper sells him a cloth whose colour fades, the buyer can cancel the transaction.
2149. Swearing in the matter of transaction is Makrooh, if it is true, and haraam, if it is false.
Transactions » Laws of partnership
2150. If two persons make an agreement that they would trade with the goods jointly owned by them, and would divide the profit between themselves, and if they pronounce a formula declaring partnership, in Arabic or in any other language, or express their intention of becoming each other's partner by conduct, the partnership will be valid.
2151. If some persons enter into a partnership to share the wages from their labour, like, if a few barbers or labourers agree mutually that they would divide between themselves whatever wages they earn, that partnership is not in order. But if they enter into a mutual compromise that, say, half of what one earns will be given to the other, for a fixed period, in exchange of half of what the other earns, this transaction will be valid, and thus each will be a partner in the wages of the other.
2152. If two persons enter into a partnership, on the terms that each of them would purchase the commodity on his own responsibility, and each would be responsible for the payment of its price, but would share the profit which they earn from that commodity, that partnership is not valid. However, if each of them makes the other his agent, authorising that whatever one purchases on credit, the other will be a partner in it, which means that he and his partner are responsible for the debt, then they will be considered partners in that commodity.
2153. The persons who become partners under the rules of partnership, must be adult and sane, and should have intention and free volition for becoming partners. They should also be able to exercise discretion over their properties. Hence, if a feeble-minded person who spends his wealth impudently, enters into partnership, it is not in order, because such a person has no right of disposal over his property.
2154. If a condition is laid down in an agreement of partnership, that the partner who manages, or does more work than the other partner, or does more important work than the other, will get larger share of the profit, it is necessary that he should be given his share as agreed upon. Similarly, if it is agreed that the person who does not manage, or does not do more work, or does not do more important work, will get larger share of the profit, that condition is also valid and it must be fulfilled.
2155. If it is agreed that the entire profit will be appropriated by one person, or the entire loss will be borne by one of them, that sort of partnership is a matter of Ishkal.
2156. If it is not agreed that one of the partners will receive more profit, and if the investment of each of them is equal, they must share profit and loss equally. And if their investment is not equal, they should divide the profit and loss in proportion to their capital. For example, if two persons become partners, and the capital of one of them is double the capital of the other, his share in the profit and loss will also be double of the other, irrespective of whether both of them do equal work, or one of them does less work, or does not work at all.
2157. If it is laid down in the agreement of partnership, that both the partners will buy and sell together, or each of them will conclude transactions individually, or only one of them will conclude transactions, or a third party will be hired to conclude the transaction, they should act as agreed upon.
2158. If it is not specified as to which of the partners will buy and sell with the capital, neither of them can conclude any transactions with that capital without the permission of the other.
2159. The partner who has been given the right of discretion over the capital, should act according to the agreement of partnership. For example, if it is agreed that he will purchase on credit, or will sell against cash payment, or will purchase the property from a particular place, he should act according to the agreement. However, if no such agreement is made with him, he should conclude transactions in the usual manner, and carry on in such a way that no loss is suffered in the partnership. He should not carry any property belonging to the partnership, with him while he is travelling, if that is unusual.
2160. If a partner who transacts business with the capital of the partnership, sells and purchases things contrary to the agreement made with him, or concludes transactions in a manner which is not normal, because of the absence of any agreement, the transaction made by him in both the cases will be correct and valid; but if such a transaction results in a loss, or a part of wealth is squandered, then the partner who has acted against the agreement, or the usual norm, will be responsible for the loss.
2161. If a partner who trades with the capital of the partnership, does not go beyond the bounds of his authority, nor is he negligent in looking after the capital, yet unexpectedly the entire capital or a part of it perishes, he is not responsible.
2162. If a partner who trades with the capital of the partnership, declares that the capital has perished, and if other partners trust him, they should accept his word. But if they do not trust him, they can complain against him before the Mujtahid, who will decide the case according to Islamic laws.
2163. If all the partners withdraw the permission, given by them to one another, for the right of discretion over their respective shares held in partnership, none of them will be allowed the right of discretion over them. And if one of them withdraws the permission accorded by him, the other partners do not have the right of discretion; but one who has withdrawn his permission can exercise his right of discretion over the property of the partnership.
2164. If one of the partners demands that the capital invested in the partnership should be divided, others should accept his demand even if the period fixed for the partnership may not have expired yet, except when the division of the capital entails considerable loss to the partners.
2165. If one of the partners dies, or becomes insane, or unconscious, other partners cannot continue to exercise right of discretion over investment held in the partnership. And the same rule applies when one of them becomes feeble-minded that is, spends his property without any consideration.
2166. If a partner purchases a thing on credit for himself, its profit and loss belongs to him. However, if he purchases it for partnership, and if the agreement allows credit dealings, its profit and loss belongs to both of them.
2167. If the partners conclude a transaction with a joint capital investment, and it transpires later that the partnership was invalid, if the validity of the transaction was not dependent on mutual consent, meaning that, if they had known that the partnership was not valid, they would have still been agreeable to having the right of discretion over the property or stock of each other, the transaction will be considered valid, and whatever is gained or lost from the transaction will be shared by them. But if the partners would not have been disposed to agree to exercise discretion over each others' stock or property had they known that the partnership was not valid, yet they approve the particular transaction, it will be valid - and if they do not, it will be invalid. And in either case, if any partner has worked for the partnership without the previous intention to work gratis, he can collect the wages for his services at the usual rate, considering the percentage of other partners. But if the usual wage is more than his share of dividend, after having agreed to the validity of the transaction, he should take the dividend only.
Transactions » Orders regarding compromise
2168. Compromise means that a person agrees to give to another person his own property or a part of the profit gained from it, or waives or forgoes a debt, or some right, and that other person also gives him in return, some property or profit from it, or waives his debt or right in consideration of it; and even if a person gives to another person his property or profit from it, or waives his debt or right without claiming any consideration, the compromise will be in order.
2169. It is necessary that the person who gives his property to another person by way of compromise, should be adult and sane, and should have the intention of making compromise, and none should have compelled him to make the compromise, and he should not also be feeble-minded from whom his own wealth is made inaccessible, or a bankrupt who has no right to dispose of his property.
2170. It is not necessary that a formula of compromise be recited in Arabic. Rather, it is sufficient to convey the intention by uttering any words.
2171. If a person gives his sheep to a shepherd so that, for example, he may look after them for one year, and use their milk and give him a quantity of ghee, and in this manner compromise with the shepherd for his labour, and a quantity of ghee against the milk of the sheep, the transaction is valid. Rather, if he gives the sheep to the shepherd for one year on lease, so that he may utilise their milk and give him a quantity of ghee, not necessarily churned from the milk of the leased sheep, this transaction is also in order.
2172. If a person wants to make a compromise with another person in respect of the debt which he owes, or in respect of his right, the compromise will be valid only if the opposite person agrees to it. But, if he wants to forgo the debt or right owed to him, the acceptance by the opposite person is not necessary.
2173. If a debtor knows the amount he owes, but the creditor does not know and makes compromise with the debtor for an amount less than what is owed to him, like, if the creditor has to receive $50 but he unknowingly makes a compromise for $10, the balance of $40 is not halal for the debtor, except that he himself tells the creditor what he actually owes him, and seeks his agreement. Alternatively, the debtor should be sure that even if the creditors had known the exact amount of the debt, he would have still settled for that lesser amount.
2174. If two persons owe each other some property, ready or on credit, and they know that one of them is more in quantity or value then the other, they cannot sell their properties in exchange of each other because it will be a transaction involving usury, and similarly, it is haraam to conclude a compromise between them. In fact, if it is not known that one is more in quantity or value than the other, but there is a strong probability, as an obligatory precaution, no compromise should be made.
2175. If two persons are the creditors of one or two persons and they, as creditors, wish to settle their debts between themselves, if as previously mentioned, no aspect of interest is involved in the transaction, there will be no objection. For example, if both of them are owed 10 kilos of wheat, one of superior quality and the other inferior, and the debt has become due for payment, the compromise will be in order between the creditors.
2176. If a person lent something to another for a stipulated period, and now he, as a creditor, wishes to compromise on something lesser in value, with an intention to collect what he gets and forgo the balance, there is no harm in it. This rule applies when the debt consists of gold or silver or another commodity which is sold by weight or by measure. As for other things, however, it is permissible for the creditor to compromise with the debtor, or with someone else for a lower amount, or to sell that debt, as will be explained in note no. 2297.
2177. If two persons make a compromise in respect of something, they can cancel the compromise with mutual consent. Similarly, if while concluding the agreement one or both of them is given the option to cancel the compromise, the person who possesses that option can cancel the compromise.
2178. As long as the buyer and the seller do not leave the place where a transaction was concluded, they can cancel the transaction. Also, if a buyer purchases an animal, he has the right to cancel the transaction within three days. And similarly, if the buyer does not pay within three days for the commodity purchased by him, and does not take delivery of the commodity, the seller can cancel the transaction, as stated in rule no. 2132. However, one who makes a compromise in respect of some property, does not possess the right to cancel the compromise in these three cases. However, if the other party in the compromise makes unusual delay in delivering the property over which the compromise was reached, or if it has been stipulated that the property will be delivered immediately, and the opposite party does not act according to this condition, the compromise can be cancelled. And similarly, compromise can also be cancelled in other cases which have been mentioned in connection with the rules relating to purchase and sale, except in the case when one of the two parties in compromise has been defrauded, for which the law is not ascertained.
2179. A compromise can be cancelled if the thing received by means of compromise is defective. However, it is a matter of Ishkal, if the person concerned desires to take the difference of the price between the defective thing and the one without defect.
2180. If a person makes a compromise with another person with his property and imposes the condition that after his death the other person will, for example, waqf that property, and that person also accepts this condition, he should carry it out.
Transactions » Rules regarding lease/rent
2181. The person who gives something on lease, as well as the person who takes it on lease, should be adult and sane, and should be acting on their free will. It is also necessary that they should have the right of discretion over the property. Hence, a feeble-minded person who does not have the right of disposal or discretion over his property, his leasing out anything or taking anything on lease is not valid. The same applies to a bankrupt person, in the wealth over which he has no right of discretion. Of course, such a person can give himself for hire.
2182. A person can become the agent of another person and give his property on lease, or take some property on lease, on his behalf.
2183. If the guardian of a minor gives his property on lease, or makes him the lessee of another person, there is no harm in it. And if some period after the child's Bulugh is also included in the period of lease, the child can cancel that included part of the lease after his becoming baligh, even if the inclusion of that period after the child's Bulugh was in his interest. But if the inclusion was based on some religious grounds, and excluding it would be against Shariah, and if the leasing was done with the permission of the Mujtahid, then the child cannot cancel the lease after becoming baligh.
2184. A minor child who has no guardian, cannot be hired without the permission of a Mujtahid. And if a person does not have access to a Mujtahid, he can hire the child after obtaining permission from a M'omin who is 'Adil.
2185. It is not necessary for the lessor and the lessee to recite the formula in Arabic. In fact, if the owner says to a person: "I have leased out my property to you", and the other replies: "I accept it", the lease contract is in order. Also, if they do not utter any words, and the owner hands over his property to the lessee with the object of leasing it out, and lessee also takes it with the intention of taking it on lease, the lease contract by such conduct is in order.
2186. If a person wants to be hired for doing some work without reciting the formula, the hire contract will be in order, as soon as he starts doing that work.
2187. If a dumb person makes it known with signs that he has taken or given a property on lease, the lease contract is in order.
2188. If a person takes a house, shop or room on lease, and the owner of the property imposed the condition that only he (the lessee) can utilise it, the lessee cannot sublet it to any other person for his use, except that the new lease is such that its advantage devolves on the lessee himself, like, if a woman takes a house or a room on lease, and later marries, and gives the room or house on lease for her own residence to her husband. And if the owner of the property does not impose any such condition, the lessee can lease it out to another person, but, as a precaution, he should seek the permission of the owner before giving it on lease. And if he wishes to lease it out for a higher amount in cash or kind, he can do so, if he has carried out some work on it, like, white washing or renovation, or if he has suffered some expenses in looking after the property.
2189. If a person who is hired on wages, lays down a condition that he will work for the hirer only, he (the hirer) cannot lease out his service to another person, except in the manner mentioned in the foregoing rule. And if the hired person does not lay down any such condition, the hirer can lease out his services to another, but he cannot charge more than the agreed wage for the hired person. Similarly, if he himself accepts employment and then hires someone to do the task, he cannot pay him less than what he will receive himself, unless he joins that hired person in completing some of his work.
2190. If a person takes or hires something other than a house, a shop, a room a ship, and a hired person, say, he hires a land on lease, and its owner does not lay down the condition that only he himself can utilise it, and if the lessee leases it out to another person on a higher rent, it will be a matter of Ishkal.
2191. If a person takes for example, a house or a shop on lease for one year, on a rent of one hundred rupees, and uses half portion of it himself, he can lease out the remaining half for one hundred rupees. However, if he wishes to lease out the half portion on a rent higher than that on which he has taken the house, or shop on lease, like, if he wishes to lease it out for hundred and twenty rupees, he can do it only if he has carried out repairs etc. in it.
Transactions » Conditions regarding the property given on lease
2192. The property which is given on lease, should fulfil certain conditions:
It should be specific. Hence, if a person says to another: "I have given you one of my houses on lease", it is not in order.
The person taking the property on lease should see it, or the lessor should give its particulars in a manner which gives full information about it.
It should be possible to deliver it. Hence, leasing out a horse which has run away, and the hirer can not possess it, will be void. However, if the hirer can manage to get it, the lease will be valid.
Utilisation of the property should not be by way of its destruction or consumption. Hence, it is not correct to give bread, fruits and other edibles on lease for the purpose of eating.
It should be possible to utilise the property for the purpose for which it is given on lease. Hence, it is not correct to give a piece of land on lease for farming, when it does not get sufficient rain water, and is also not irrigated by canal water.
The thing which a person gives on lease should be his own property, and if he gives the property of another person on lease, it will be correct only if its owner agrees to it.
2193. It is permissible to give a tree on lease for utilising its fruit, although fruit may not have appeared on it yet. The same rule applies if an animal is given on lease for its milk.
2194. A woman can be hired for her milk, and it is not necessary for her to obtain her husband's permission. However, if her husband's right suffers owing to her giving milk (to the child of another person), she cannot take up the job without his permission.
Transactions » Conditions for the utilisation of the property given on lease
2195. The utilisation of the property given on lease carries four conditions:
That it should be halal. Hence, leasing out a shop for the sale or storage of Alcoholic drinks, or providing transportation by leasing for it, is void.
That doing the act or giving that service free of charge should not be obligatory in the eyes of Shariah. Therefore, as a precaution, it is not permissible to receive wages for teaching the rules of halal and haraam, or for the last ritual services to the dead, like washing it, shrouding etc. And as a precaution, money should not be paid in lieu of any services which is deemed futile.
If the thing which is being leased out can be put to several uses, then the use permissible to the lessee should be specified. For example, if an animal, which can be used for riding or for carrying a load is given on hire, it should be specified at the time of concluding the lease contract, whether the lessee may use it for riding or for carrying a load, or may use it for all other purposes.
The nature and extent of utilisation should be specified. In the case of hiring a house or a shop, it can be done by fixing the period, and in the case of labour, like that of a tailor, it can be specified that he will sew and stitch a particular dress in a particular fashion.
2196. If the time of commencement of a lease is not fixed, it will be reckoned to have commenced after the recitation of the formula of lease.
2197. If, for example, a house is leased out for one year, and it is stipulated that the period of lease will commence one month after the recitation of the formula, the lease contract is in order, even if the house had been leased out to another person at the time of reciting the formula.
2198. If the period of lease is not specified, and the lessor says to the lessee: "At any time you stay in the house you will have to pay rent at the rate of $10 per month", the lease contract is not in order.
2199. If the owner of a house says to the lessee: "I have leased out this house to you for £10 per month" or says: "I hereby lease out this house to you for one month on a rent of $10, and as long as you stay in it thereafter the rent will be $10 per month", if the time of the commencement of the period of lease was specified or it was known the lease for the first month will be proper.
2200. If travellers and pilgrims stay in a house not knowing how long they will stay there, and if they settle with the landlord that they will, for example, pay $1 per night as rent, and the landlord also agrees to it, there is no harm in using that house. However, as the period of lease has not been specified, the lease will not be proper except for the first night, and after the first night the landlord can eject them as and when he so wishes.
Transactions » Miscellaneous rules relating to lease/rent
2201. The property which the lessor gives on lease should be identified. Hence if it is one of the things whose transaction is made by weight (e.g. wheat), its weight should be specified. And if it is one of those things whose transaction is made by counting (e.g. currency coins), the amount should be specified. And if it is like a horse or a sheep, the lessor should have a sight of it, or the lesser should inform him of its particulars.
2202. If land is given on lease for farming, and the produce of that very land which does not presently exist, is treated as its rent, the lease contract will not be valid. And the same applies if he assumes a general responsibility to pay the rent on the condition that it will be paid from the harvest. But if the source from which rent will be paid exists, there is no objection.
2203. If a person has leased out something, he cannot claim its rent until he has delivered it. And if a person is hired to perform an act, he cannot claim wages until he has performed that act, except in the cases where advance payment of wages is an accepted norm, like Niyabat for Hajj.
2204. If a lessor delivers the leased property, the lessee should pay the rent, even if he may not take the delivery, or may take its delivery but may not utilise it till the end of the period of lease.
2205. If a person agrees to perform a task on a particular day against wages, and appears on that day to perform the task, the person who has hired him should pay him the wages, even if he may not assign that task to him. For example, if a tailor is hired to sew a dress on a particular day, and he appears to do the work, the hirer should pay him the wages even if he may not provide him with the cloth to sew, irrespective of whether the tailor remains without work on that day or alternatively does his own or somebody else's work.
2206. If it transpires after the expiry of the period of lease, that the lease contract was void, the lessee should give the usual rent of that thing to the owner of the property. For example, if a person takes a house on lease for one year on a rent of $100, and learns later that the lease contract was void, and if the normal current rent of the house is $50, he should pay $50. And if its normal current rent is $200, and the person who leased it out was its owner, or his agent, and was aware of the current rate of rental, it is not necessary for the lessee to give him more than $100. But if a person other than these gave it on lease, the lessee should pay $200. And the same order applies, if it is known during the period of lease, that the lease contract is void in relation to the outstanding rent for the past period.
2207. If a thing taken by a person on lease is lost, and if he has not been negligent in looking after it nor extravagant in its use, he is not responsible for the loss. Also, if, for example, a cloth given to a tailor is damaged or destroyed, when the tailor has not been extravagant, and has also not shown negligence in taking care of it, he need not make any replacement.
2208. If an artisan loses the thing taken by him, he is responsible for it.
2209. If a butcher cuts off the head of an animal, and makes it haraam, he must pay its price to its owner, regardless of whether he charged for slaughtering the animal or did it gratis.
2210. If a person takes an animal on hire, and specifies as to how much he will load on it, and if he puts a heavier load on it, and as a result, the animal dies or becomes defective, he is responsible for it. And even if the quantity of the load is not specified, and he puts an unusually heavier load on it with the result that the animal dies or becomes defective, the person concerned is responsible. And in both the cases, he must pay extra rent than is usual.
2211. If a person gives an animal on hire so that fragile goods may be loaded on it, and the animal slips or trots and breaks the things, the owner of the animal is not responsible for it. However, if the owner beats the animal severely, or does something like it, as a result of which the animal falls down on the ground, and breaks the goods he (the owner of the animal) is responsible.
2212. If a person circumcises a child, and as a consequence of it the child dies, or is injured, the person who circumcises is responsible if he has been careless or made a mistake, like having cut the flesh more than usual. However, if he was not careless, or did not make any mistake, and the child dies due to circumcision, or sustains an injury, he will not be responsible, provided that, he had not been consulted earlier about the possible injury, nor was he aware that the child would be injured.
2213. If a doctor gives medicines to a patient with his own hands, or prescribes a medicine for him, and if the patient sustains harm or dies because of taking that medicine, the doctor is responsible, even if he had not been careless in treating the patient.
2214. If a doctor tells a patient: "If you sustain harm I am not responsible" and then exercises due precaution and care in the treatment, but the patient sustains harm or dies, the doctor is not responsible.
2215. The lessee and the lessor can cancel the lease contract with mutual consent. Also if a condition was laid down in the lease contract that one or both of them would have the option to cancel the contract, they can cancel the contract as agreed.
2216. If the lessor or the lessee realises that he has been cheated, if he did not notice at the time of making the lease contract that he was being cheated, he can cancel the lease contract. However, if a condition is laid down in the contract of lease, that even if the parties are cheated, they will not be entitled to cancel the contract, they cannot cancel it.
2217. If a person gives something on lease, and before he delivers it to the other party, it is usurped, the lessee can cancel the lease contract and take back whatever he has given to the lessor, or he may not cancel the lease contract, and take from the usurper rent at the usual rate, for the period the thing remained in his possession. Therefore, if a person takes an animal on lease for one month for $10, and someone usurps if for ten days, and the usual rent for ten days is $15, the lessee can take $15 from the usurper.
2218. If a lessee hires something and someone prevents him from taking its delivery, or usurps it from him, after he has taken the possession, or prevents him from using it, he cannot cancel the lease. He is entitled only to take rent of that thing from the usurper at the usual rate.
2219. If the lessor sells the property to the lessee before the expiry of the period of lease, the lease contract does not get cancelled, and the lessee should give the rent of the property to the lessor. The same rule will apply if the lessor sells the leased property to someone else.
2220. If before the commencement of the period of lease, the leased property gets so impaired that it cannot be utilised in the manner agreed upon, the lease contract becomes void, and the money paid by the lessee will revert back to him. And if it is possible to utilise the property partly, the lessee can cancel the lease contract.
2221. If a person takes something on lease, and during the period of lease it becomes so impaired that it is not fit for the required use, the remaining lease contract will be void, and the lessee can cancel the lease for the past period also. And for that period, he may pay usual rent.
2222. If a person leases out a house which has, for example, two rooms, and one of those rooms is ruined and he gets it repaired, but it does not match the standard of the previous room, the rule mentioned in 2221, will apply in this case also. But if it is repaired by the hirer at once, and its use does not get interrupted, then the lease does not become void, and the lessee cannot cancel the lease. However, if the repair takes too long, and its use is interrupted, then the lease will be invalid for that much period, and in this case, the lessee can cancel the whole lease, and in exchange of whatever use he may have made, he should pay a usual rent.
2223. If the lessor or the lessee dies, the lease contract does not become void. But if the house is not the property of the lessor - for example, another person made a will that as long as he (the lessor) is alive, the income derived from the house will be his property, and if he gives that house on lease, and dies before the expiry of the lease period, the lease contract becomes void from the time of his death. It can become valid again if the owner of the house endorses the contract, and the rent for the remaining period of lease, after the death of the lessor, will accrue to the present owner.
2224. If an employer appoints a contractor to recruit labourers for him, and if the contractor pays the labourers less than what he receives for them from the employer, the excess he keeps is haraam for him, and he should return it to the employer. And if the contractor is given a full contract by the employer, to complete a building, and is authorised to either construct it himself or give a sub-contract to another party, if he joins with the other party in doing some work, and then entrusting him to do the remaining work against lower payment than what he has collected from the employer, the surplus with him will be halal for him.
2225. If a person who dyes the clothes, agrees to dye a cloth with indigo, he has no right to claim any charges if he dyes it with something else.
Transactions » Rules regarding Ju'ala (payment of reward)
2226. Ju'ala means that a person promises that if a particular work is completed for him, he will give a specified amount for it. For example, he declares that if anyone recovers his lost property, he will give him $10. One who makes such a declaration is called Ja'il, and the person who carries out that work is called 'Amil. One of the differences between Ju'ala and Ijara (hire) is that, in the case of "hire", the hired person is bound to do the job after the agreement, and the hirer becomes indebted to the hired person for his wages, whereas in the case of Ju'ala, the person who agrees to do the job is at liberty to abandon it if he so wishes; and until he completes the job assigned, the person who declared the reward or payment does not become indebted to him.
2227. A person who declares the payment or reward should be adult and sane, and should have made it with his free will and intention, and should have the right of disposal and discretion over his property. Therefore, the declaration by a feeble minded person who squanders his property indiscreetly is not in order. Similarly, a bankrupt cannot declare any reward or payment from that part of wealth over which he has not right of discretion.
2228. The task for which the declaration was made by the employer should not be haraam, futile, or one of those obligatory acts which should necessarily be performed free according to Shariah. Hence, if a person declares that he will give $10 to a person who drinks alcohol, or traverses a dark passage at night without any sensible purpose, or offers his obligatory prayers, the employment will not be in order.
2229. It is not necessary for the employer for Ju'ala to specify the reward he would give with all its particulars. If the employee, in this case, is certain that he would not be taken for a stupid or foolish person if he undertook the assignment, it is sufficient. For example, if the employer in Ju'ala tells a person that if he sells a particular stock or goods for more than, say, ten dollars, whatever is the excess will be his. This form of Ju'ala is valid. Similarly, if he says that who soever finds his horse, that person will own half of it, or that person will be awarded ten kilos of wheat, Ju'ala will be in order.
2230. If a person does not at all mention the amount of reward which he would give for his work - for example, if he says: "I shall give money to the person who finds out my son", and does not specify the amount of money, and if some one performs the task, he should pay him according to what is customarily paid for such tasks.
2231. If the employee in Ju'ala performs the task before the agreement is made, or performs it after the agreement, but with the intention that he will not take any money, he is not entitled to demand wages.
2232. The person who makes a Ju'ala agreement can cancel it before the person employed starts to work.
2233. If the person wishes to cancel the Ju'ala agreement after the employee has started work, it is a matter of Ishkal.
2234. A person appointed to work in Ju'ala can leave the task incomplete. However, if his failure to complete the task causes harm to the person who appointed him, he must complete it. For example, if a person says: "If someone operates upon my eye I shall give him so much money" and a surgeon commences the operation. If by not completing the operation, the eye will be defective, he must complete it. And if he leaves it half way, he has no claim, whatsoever, over the person who employed him.
Transactions » Rules regarding Muzari'ah (temporary sharecropping contract)
2236. One of the many types of Muzari'ah means that the owner of a land agrees to hand over his land to a farmer, so that he would cultivate it, and give a share of the crop to the landowner.
2237. Muzari'ah has certain conditions:
That the owner of land confirms to the farmer that he has given him the land for farming, and the farmer also asserts that he has accepted it. Alternatively, without their uttering anything, the owner of the land keeps the land at the farmer's disposal with the intention that he would do farming in it, and the farmer accepts it.
Both the owner of the land and the farmer should be adult and sane, and should conclude the agreement of Muzari'ah with their intention and free will. They should also not be feeble minded persons, who squander their wealth on useless things. Similarly, the owner of the land should not be a bankrupt person. But if the agreement in which he enters with the farmer does not in any way involve any property over which the bankrupt person has no right of discretion, then there will be no objection.
As a precaution, the owner and the farmer should each share the entire produce of the land. But this condition does not appear to be necessary. Hence, if they, for example, agree to the condition that the harvest in the first half or at the end, will belong to one of them, the agreement of Muzari'ah will be valid.
The share of each of them should be fixed, like, 1/2 or 1/3 etc. of the crop. If no share is fixed, and the owner of the land simply says: "Cultivate this land and give me whatever you like", it will not be in order. Similarly, if instead of fixing a share, a fixed quantity of the crop is offered for the farmer or the landowner, the Muzari'ah will not be valid.
The period for which the land is to remain in possession of the farmer should be specified, and it is necessary that the period should be long enough to make a harvest possible from the land. And if this period is made to commence from a specified day, and to end with the harvest time, it will be sufficient.
The land should be arable, and if it is barren but can be made fit for farming by some improvements being done on it, the contract of muzari'ah is in order.
If the farmer is supposed to sow seeds for a particular crop, then that crop must be specified. For example, it must be specified whether it will be rice or wheat, and if it is rice, for example, which type of rice will be sown. However, if they do not have any particular crop in view, or the crop which both of them have in view is known, it is not necessary that they should define it.
The owner should specify the land, if he has several tracts of land which differ from one another in their requirements. But if they do not differ in their requirements, it is not necessary to specify. For example, if he tells the farmer to till and cultivate any of those lands, without specifying any one, muzari'ah will be valid.
The expenses which each of them will incur should be specified. However, if the expenditure which each of them should incur is known, it is not necessary to declare it.
2238. If the owner settles with the farmer that a certain quantity of the crop will belong to one of them, and the remaining quantity will be divided between them, that muzari'ah is void, even if they know that something will remain after deducting that quantity. Of course, if they agree between themselves that some of the seeds sown, or the tax payable to the government, will be deducted from the harvest, and the rest will be divided between them, this muzari'ah is in order.
2239. If the agreed period of muzari'ah (tenancy) comes to end, and the usual crop is not obtained, there will be no objection if the owner of the land agrees that the crop may remain on his land on payment of rent, or without it, and if the farmer is also agreeable to it, provided that, both of them had agreed at the time of fixing that muzari'ah will end regardless of any crop becoming available. But if the owner does not agree to such an arrangement, he can ask the farmer to remove the crop from there. And if the farmer sustains a loss by removing the crop, it will not be necessary for the owner to compensate the farmer for it. And the farmer who is willing to pay something to the owner, to allow the crop to stand on his land, cannot compel him to agree.
2240. If farming becomes impossible on the land due to some eventuality, for example, if water supply is cut off from the land - the contract of muzari'ah is annulled. But if the farmer does not cultivate the land without any justifiable excuse, while the land remains in his occupation, and the owner has no discretion over it, he should pay the rent for that period to the owner at the usual rate.
2241. The owner of land and the farmer cannot cancel the contract of muzari'ah without the consent of each other, unless they had agreed in the contract to grant that option to one or both of them. In that case, they will cancel the contract according to the conditions laid in the agreement. Similarly, if any one of them acts contrary to the agreed conditions of the contracts, the other party in the contract will have the right to cancel the transaction.
2242. If the landowner or the farmer dies after concluding the contract of muzari'ah, the contract is not terminated, and their heirs take their place. However, if the farmer dies, and if they had stipulated that the farmer himself would do the farming, the contract of muzari'ah will become cancelled. But if the farmer had completed his task, and fulfilled his assignment, then the muzari'ah will remain valid, and the heirs will be given his share together with all his rights or accruals which were due to him. However, the heirs cannot compel the landowner to allow the crop to stand on his land.
2243. If it becomes known after cultivation, that the contract of muzari'ah had been void, and if the seeds have been the property of the landowner, the produce will belong to him and he will pay the farmer his wages and the expenses incurred by him, and the rent for the cow and other animals belonging to the farmer, which may have worked on the farm. And if the seeds were the property of the farmer, the crop will belong to him, and he should pay the landowner the rent of the land and the expenses incurred by him, and rent for the cow and other animals belonging to the landowner which may have worked on the farm. And in both the cases, it will be obligatory to pay the agreed amount only, even if the other party is aware that the usual entitlement is more than that.
2244. If the seeds belong to the farmer, and if it becomes known after cultivation that the contract of muzari'ah had been void, there will be no objection if the landowner and the farmer agree that the crop may remain on the land against payment or otherwise. Some Fuqaha have said that if the landowner is not agreeable, he can ask the farmer to remove the crop from the land, even before it is ready, and that even if the farmer is willing to pay something to the landowner, he cannot compel him to allow the crop to remain on his land. But this is not free from Ishkal. And in any case, the landowner cannot compel the farmer to pay rent and let the crop remain on his land, or even without any rent.
2245. If roots of the crop remain in the land after harvesting the crop, and if after the expiry of the contract of muzari'ah they grow again in the next year, if the landowner had not made an agreement with the farmer regarding his share in the remaining roots, the crop of the second year will belong to the landowner.
Transactions » Rules regarding Musaqat and Mugharisa
2246. Musaqat means that a person agrees with someone that for a specified time, the fruit-bearing trees owned by him, or those which are under his discretion, will be given to that person so that he cares, tends and waters them. In return, that person will have the right to take an agreed quantity of fruits. This transaction is called Musaqat.
2247. A transaction of Musaqat in respect of fruitless trees will be in order, if it has another product of substantial monetary value, like, any leaves of flowers which is sold for good gain - like, the leaves of Henna, which is in common use.
2248. While concluding a transaction of Musaqat, it is not necessary that the prescribed formula be pronounced. In fact, if the owner of the tree transfers it with the intention of Musaqat, and he who is to do the work begins doing the work with the same intention, the transaction is in order.
2249. The owner of the trees, and the person who undertakes to tend and care for them, should both be adult and sane, and should not have been coerced by anyone. Moreover, they should not be feeble-minded persons (who have no discretion over the property), so that the property is not unnecessarily ruined. Similarly, the owner must not be a bankrupt person. But if the person who tends and waters is bankrupt, he can be engaged to do the work, provided that, in so doing, he does not use the property he is not allowed to administer or use.
2250. The period of Musaqat should be known, and it must extend over a span of time when the harvest becomes ready. And if the beginning is specified, and its end is fixed to be the time when fruits for that year become available, the contract is in order.
2251. It is necessary that the share of each one of them is fixed as 1/2 or 1/3 etc. of the crop, and if they stipulate, for example, that one ton of the fruits will belong to the owner of the trees and the remaining quantity will go to the person who looks after the trees, the contract is void.
2252. It is not necessary that the contract for Musaqat be concluded before the appearance of the crop. In fact, a contract made after the appearance of the crop is valid, provided that, some work like increasing the crop, protecting the trees, is still required. But if no such work remains to be done, then a contract for merely watering the trees, plucking the fruits, and looking after them, cannot be valid.
2253. A contract of Musaqat for creeping plants, like melon and cucumber, is also valid.
2254. If a tree benefits from rainwater or the moisture of earth, and does not stand in need of irrigation, but needs other work as described in rule 2252, the contract of Musaqat will be in order.
2255. Two persons who have entered a contract of Musaqat can cancel it with mutual consent. Moreover, if they lay down in the contract of Musaqat, a condition that both or one of them will be entitled to cancel the contract, there will be no harm in cancelling the contract as agreed to by them. And if they lay down other conditions in the agreement, which are not followed, the person who was to benefit from that condition can cancel the contract.
2256. If the owner dies, the contract of Musaqat is not terminated, and his heirs take his place.
2257. If a person to whom the upkeep of the trees was entrusted dies, and if it was not agreed that he would tend and care for them himself, his heirs take his place. And if they do not do the job themselves, and also do not hire a person for the work, the Mujtahid will hire a person and pay from the estate of the dead person, and divide the crop between the heirs of the deceased and the owner of the trees. And if they had agreed that the man would tend and care for the trees himself, the contract will be cancelled upon his death.
2258. If it is agreed that the entire crop will belong to the owner, the contract of Musaqat is void, but the fruit will remain the property of the owner, and the worker cannot claim any wages, except when the contract of Musaqat is invalid because of some other reason. In that case, the owner will pay wages at the usual rate to the person who has reared the trees by watering them and doing other jobs. But if the usual amount of wages is more than the stipulated amount, and the opposite party was aware of it, it is not necessary for him to pay the excess.
2259. If a person hands over a piece of land to another person to plant trees in it, and it is agreed that whatever is grown, will be the property of both of them, the contract is called Mugharisa, and is valid, though it should be avoided, as a precaution. However, a slight change in the method of achieving the same purpose will make the contract valid, without any objection. For example, if both the sides enter into this sort of agreement for settling and compromising their debts, or they become partners in the newly growing trees, and then the worker offers his services to the owner for tending and watering them for a specified period, against the wages equal to half the value of land.
Transactions » Persons who have no right of disposal or discretion over their own property
2260. A child who has not reached the age of puberty, (bulugh), has no right of discretion over the property he holds or owns, even if he is able to discern and is mature, and the permission of his/her guardian does not apply in this case. However, in those cases where a Na-baligh is allowed to make a transaction, like when buying or selling things of small worth as mentioned in rule 2090, or his testament for his relatives and kinsmen, as will be explained in rule 2706, the right can be exercised. A girl becomes baligha upon completion of her nine lunar years, and a boy is baligh when stiff pubic hair grow, or when he discharges semen, or upon completion of fifteen lunar years.
2261. Growing of stiff hair on the face and above the lips may be considered as signs of bulugh, but their growth on chest and under the armpits, and the voice becoming harsh etc. are not the signs of one's reaching the age of puberty, except that one may become sure of having reached the age of puberty due to these changes.
2262. An insane person has no right of disposal over his property. Similarly, a bankrupt (i.e. a person who has been prohibited by the Mujtahid to dispose of or have discretion on his property because of the demands of his creditors) cannot dispose his property without the permission of the creditors. And a feeble-minded person (Safih) who squanders his property for useless purposes, has no right of disposal or discretion over his property.
2263. If a person is sane at one time and insane at another, the right of discretion exercised by him during his lunacy will not be considered valid.
2264. A dying man in his terminal illness can spend his own wealth on himself, on the members of his family, his guests and on other things as much as he likes, provided that, it is not considered to be extravagance on his part. Also, he can sell his property at its proper value, or hire it. But if he gives away his property as gift, or sells it at a lower price than usual, it will be valid if the property gifted or sold cheap is equal to or less than 1/3 of his estate. And if it is more, it will be valid only if the heirs allow, and if they do not, then whatever he spent in excess of 1/3 of his estate will be considered void.
Transactions » Rules regarding agency (Wakalat)
Wakalat means that a person delegates somebody a task (like concluding a transaction), which he himself had a right to do, so that the other person may perform it on his behalf. For example, one may appoint another person to act as one's agent for the sale of a house, or for a marriage contract. Since a feeble-minded person does not have right of discretion over his property, he cannot appoint an agent (Wakil) to sell it.
2265. In Wakalat, it is not necessary to recite a formal formula. If a person conveys to another person, by conduct, that he has made him his agent and the other person also conducts himself in a way to convey that he has accepted that position, e.g. if he places his property at Wakil's disposal so that he may sell it on his behalf, and the Wakil takes that property for that purpose, the agency is in order.
2266. If a person appoints a person in another city as his agent, and gives him power of attorney, and he accepts it, the agency is in order, even if the power of attorney reaches the agent after some time.
2267. The Muwakkil (principal), that is, the person who appoints another person as his Wakil (agent), as well as the Wakil, should be sane, acting on his own volition and authority. And the principal should be baligh, except in cases where a discerning child can act.
2268. A person cannot become a Wakil for an act which he cannot perform, or which is haraam for him to do. For example, a person who is wearing Ehram for Hajj cannot recite the Nikah as an agent for another person.
2269. If a person appoints another person as his agent to perform all his tasks, the agency is in order, but if he appoints him as his agent for performing a task without specifying it, the agency will be void. But if the principal gives an optional task to the agent, like, if he appoints him as a Wakil to either sell his house or give it on rent, that Wakalat will be valid.
2270. If a person removes his agent from office, he (the agent) cannot perform the task entrusted to him after the news of his dismissal has reached him. However, if he has already performed the task before the news of his dismissal reaches him, it will be in order.
2271. An agent can relinquish the agency even if the principal is absent.
2272. An agent cannot appoint another person as agent for the performance of the task entrusted to him, except when the principal has authorised him to engage an agent. In that case, he should strictly act according to the instructions. Hence, if the principal has said to him: "Engage an agent for me", he should engage an agent for the principal and cannot appoint the agent on his own behalf.
2273. If an agent appoints an agent for his principal, with his permission, he cannot remove that agent. And if the first agent dies or the principal dismisses him, the second agency will not be invalidated.
2274. If an agent appoints someone as his own agent with the permission of the principal, the principal and the first agent can dismiss that second agent, and if the first agent dies or is removed from office, the second agency becomes invalid.
2275. If several persons are engaged as agents for performing a task, and everyone of them is allowed to act independently, everyone of them can perform that task, and if one of them dies the agency of others is not invalidated. But if, they were told to work jointly, they cannot act independently, and if one of them dies, the agency of others is invalidated.
2276. If the agent or the principal dies, the agency becomes invalid. Similarly, if the thing for the disposal of which one his appointed an agent perishes, (for example, the sheep which the agent was entrusted to sell, dies) the agency becomes invalid. And if either of them (i.e. the principal or the agent) becomes insane or unconscious, the agency is invalidated. But if either of them becomes insane or unconscious occasionally, the agency does not become void during such periods, nor after the recovery.
2277. If a person appoints someone as agent to perform a task, and promises to give him something for his services, he must give him the promised thing after the completion of the task.
2278. If an agent is not careless in looking after the property entrusted to him, nor does he exercise such discretion over it for which permission was not granted, and by chance the property is lost or destroyed, he should not compensate for it.
2279. If an agent has been careless about looking after the property entrusted to him, or treated it in a manner which was different from the one allowed by the principal, and consequently the property is lost or destroyed, he is responsible for it. For example, if he is given a dress to sell, and instead he wears it, and it is lost or damaged, he should pay compensation for it.
2280. If an agent deals with a property in a manner other than the one for which he has been granted permission, for example, he wears a dress which he has been asked to sell, and then disposes it in the authorised manner, that disposal will be in order.
Transactions » Rules regarding debt or loan
To give loan to Momineen, particularly the needy ones, is Mustahab, on which great stress has been laid in the Holy Qur'an and in the Traditions (Ahadith). The Holy Prophet has been reported to have said that whoever gives loan to his Muslim brother, his wealth flourishes, and the angels invoke Divine mercy for him, and if he is lenient with his debtor, he will pass over the Bridge (Sirat) swiftly. And if a Muslim denies his brethren-in-faith a loan, Paradise becomes forbidden (haraam) for him.
2281. It is not necessary to recite a specific formula in the matter of debt. If a person gives something to another person with the intention of loaning, and the other takes it with the intention of borrowing, that conduct will be in order.
2282. Whenever a debtor pays his debt, the creditor should accept it. But if the time for repayment had been fixed at the request of the creditor, or by mutual understanding, then in this case, the creditor can refuse to accept the repayment before the termination of time.
2283. If a period is fixed for the repayment of debt in the formal contract of debt by the debtor, or by mutual agreement, the creditor cannot claim repayment of the debt before the expiry of that period. But if it was stipulated by the creditor, or if no such period was fixed, the creditor can demand the repayment of his debt at any time.
2284. When the creditor demands his debt, and the debtor is in a position to pay it, he should pay it immediately, and if he delays its payment, he commits a sin.
2285. If the debtor does not possess anything other than the house he occupies, the household effects, and other things of essential needs, without which he would be facing hardship, the creditor cannot claim the repayment from him. He should wait till the debtor is in a position to repay the debt.
2286. If a person is indebted and he is unable to repay his debt, he should take up a suitable employment if he can, and pay off his debt. This is an obligatory precaution. Especially, if employment for him is easy, or if it has been his vocation, it is obligatory upon him to do so in order to pay off the debt.
2287. If a person has no access to his creditor, and does not hope to find him or his heirs, he should pay the amount he owes to poor on behalf of the creditor. And as a precaution, he should obtain permission for it from the Mujtahid. And if his creditor is not a Sayyid, the recommended precaution is that he should not give the sum he owes to a poor who is a Sayyid. But if he hopes to find his creditor or the heirs, he should wait and search for him. And if he does not succeed, he should make a Will stating that if he died, and if the creditor or the heirs appear, they should be paid from his estate.
2288. If the estate of a dead person does not exceed the obligatory expenses of his Kafan, burial and the payment of his debt, his estate should be utilised for these purposes and his heir will not inherit anything.
2289. If a person takes a quantity of gold and silver currency as a loan, and then its price falls, it will be sufficient if he gives the same quantity which he had taken. And if its price rises, he must give the same quantity which he had taken. However, in either case, there is no objection if the debtor and the creditor mutually agree to some other arrangement.
2290. If the property taken on loan has not perished, and its owner demands it, the recommended precaution is that the debtor should return him the same property.
2291. If a person who advances a loan, makes a condition that he will take back more than what he gives, for example, he gives 3 kilos of wheat and stipulates that he will take back 3 1/2 kilos of wheat, or gives ten eggs and says that he will take back eleven eggs, it will be usury and therefore haraam. Rather, if he stipulates that the debtor should, apart from the repayment, do some work for him, or repay the loan along with a quantity of another commodity (for example, if he lays down the condition that the debtor will return one rupee owed along with a match box) it will be usury and haraam. Also, if he stipulates that the debtor will return the thing loaned to him in a particular shape, e.g. if he gives him a quantity of gold, and imposes the condition that he will take it back as golden ornaments, that too, is usury and haraam. However, if no condition is made by the creditor, and the debtor himself decides to repay something more than what he borrowed, there is no harm in it. In fact, it is Mustahab to do so.
2292. To pay interest is haraam, the same way as charging interest. However, if a person takes a loan against interest, he becomes its owner, although it is better that he should not exercise his right of disposal over it. And if it is known that the creditor would have allowed him the use of money loaned, even if they would not have agreed on interest, then the debtor can exercise his would have allowed him the use of money loaned, even if they would not have agreed on interest, then the debtor can exercise his discretion over the money loaned to him without any objection.
2293. If a person takes interest bearing loan in the shape of wheat or any other similar thing, and does farming with it, he becomes the owner of the harvest, but it is better that he should not exercise his right of disposal over harvest so acquired.
2294. If a person purchases a dress, and then pays the owner of the dress with the money earned from interest, or with lawful money mixed with interest money, there will be no harm in wearing that dress and offering prayers with it. But if he says to the seller: "I am purchasing this dress with this sort of money", it will be haraam to wear that dress. But offering prayers with that dress has been adequately explained in the rules for the clothes worn by one who wishes to pray.
2295. If a person gives a sum of money to a merchant, so that he may get from him something less in another city, there is no harm in it. It is called 'Sarf-i-Barat'.
2296. If a person gives some money to another person with the condition that after a few days, he will take a larger amount from him in another city, or town, (for example, he gives $990 to him, and stipulates that after ten days he will take $1000 from him in another city) and if that currency is of gold or silver, the transaction is usury which is haraam. However, if the person who is taking more amount gives some commodity against the excess amount or performs some task, there is no harm in this arrangement. As for the usual bank notes, which is classified as things to be counted, there is no harm if something more is taken in exchange, except when it is in the form of a debt and a condition for excess is laid, in which case, it will be interest and haraam. Or, if a person sells bank notes on credit basis, for more in return, and if they belong to the same classification of commodity, it is not a permissible transaction.
2297. If a person is owed by someone, and the thing owed is not in the category of gold, silver or anything measured or weighed, he can sell it to the debtor or anybody else for a lesser amount and realise the sum in cash. On this basis, in the present times, a creditor can sell the bills of exchange or the promissory notes received from the debtor, to the bank, or any other person, at a price lower than the amount due to him (which is called 'discounting' in common parlance) and can take the outstanding balance in cash, because dealings with regard to common bank notes is not by weight or measure.
Transactions » Rules regarding Hawala (transferring the debts etc.)
2298. If a debtor directs his creditor to collect his debt from the third person, and the creditor accepts the arrangement, the third person will, on completion of all the conditions to be explained later, become the debtor. Thereafter, the creditor cannot demand his debt from the first debtor.
2299. The debtor, the creditor and the person to whom collection is referred, should be adult and sane, and none should have coerced them, and they should not be feeble-minded, that is, those who squander their wealth. And it is also necessary that the debtor and the creditor are not bankrupt. Of course, if the debt is transferred to a person who is solvent, there is no harm even if the person assigning the transfer is bankrupt.
2300. Transferring the debt to a person who is not a debtor will not be correct, unless he accepts it. And if a person wishes to affect a transfer to a debtor for a commodity other than that for which he is indebted, (for example, if he transfers the debt of wheat while he is indebted to him for barley) the transfer will not be in order, unless he accepts it. In fact, in all cases of such transfers and Hawalas, one to whom it is assigned should have accepted it, otherwise, the transaction will be void.
2301. It is necessary that a person should actually be a debtor at the time he transfers the debt. Therefore, if he intends taking a loan from some one, he cannot transfer the prospective debt in advance to another party, telling the would be creditor to collect the debt from the party.
2302. The debtor must specify exactly the category and the quantity of the debt he transfers to another party. For example, if his debt comprises of ten kilos of wheat and ten dollars owed to one person, and he tells him to go and collect either of the two debts from a certain party, that transfer will not be valid.
2303. If the debt is fully identified, but the debtor and the creditor do not know its quantity and category at the time of assigning the transfer, the transaction is in order. For example, if a person who has recorded the debt he owes to someone in his books, assigns a Hawala or transfer of debt before referring to the books, and later, after consulting his records, informs the creditors about the quantity of his debt, the transfer is in order.
2304. The creditor may decline to accept the transfer of debt, although the person in whose name the assignment has been given may be rich, and may not fail to honour the Hawala.
2305. If a person accepting the Hawala is not a debtor to the person giving the Hawala, he can demand the amount of the Hawala from the person who gave it, before honouring the Hawala, unless it was previously agreed that the payment would be deferred for a fixed period, and that period has not lapsed. In this case, the person receiving Hawala cannot demand payment even if he himself may have honoured the Hawala. And if the creditor compromises for a lesser amount, the person honouring the Hawala should demand only that sum which he has paid.
2306. When the conditions of the transfer of debt or Hawala have been fulfilled, the person affecting the Hawala and the person receiving it cannot cancel the Hawala, and if the person receiving the Hawala was not poor at the time the Hawala was issued, the creditor cannot cancel the Hawala even if the recipient becomes poor afterwards. The same will apply if the recipient of the Hawala was poor at the time it was issued, and the creditor knew about it. But if the creditor did not know that the person to whom Hawala has been issued is poor, and when he comes to know of it, the recipient is still poor, then the creditor can abrogate the Hawala transaction, and demand his money from the debtor himself. But if the recipient of Hawala has turned rich, then cancelling the Hawala cannot be substantiated.
2307. If the debtor, the creditor, and the person to whom the Hawala is assigned agree among themselves that all of them or any one of them has a right to cancel the Hawala, they can do so in accordance with the clause of the agreement.
2308. If the person issuing a Hawala pays the creditor himself, at the request of the person in whose name the Hawala was issued, who was also his debtor, he can claim from the recipient of Hawala what he has paid to the creditor. And if he has paid without his request, or if he was not his debtor, he cannot demand from him what he has paid.
Transactions » Rules regarding Mortgage (Rahn)
2309. Mortgage means that a person effects a conveyance of property to another person as security for money debt, or property held under responsibility, with a proviso that if that debt is not paid, the creditor may pay himself out of the proceeds of that property.
2310. It is not necessary to pronounce a prescribed formula for effecting the mortgage. If the debtor conveyances his property to the creditor with the intention of providing security for the debt, and the creditor accepts it with the same intention, the mortgage is in order.
2311. The mortgagor and the mortgagee should be adult and sane, and should not have been coerced by anyone. Moreover, the mortgagor should not be bankrupt and feeble-minded. The meaning of 'bankrupt' and 'feeble-minded' have been given in rule 2262. But if the property mortgaged does not belong to the bankrupt, or if he has not been prohibited to use it, there is no objection.
2312. A person can mortgage that property over which he has a right of disposal or discretion, and it is also in order if he mortgages the property of another person with his permission.
2313. The property mortgaged must be such in which trading is permissible by Shariah. Hence, if alcoholic liquor or something like it is mortgaged, the transaction will be void.
2314. The benefit which accrues from the mortgaged property, belongs to the owner, whether the mortgagor or any other person.
2315. The mortgagee cannot present or sell the mortgaged property to another person without the permission of the owner, whether he is the mortgagor or any other person. However, if he presents or sells it to another person, and the owner consents to it later, there is no harm in it.
2316. If a mortgagee sells the mortgaged property with the permission of the owner, the sale proceeds will not be considered mortgaged like the property itself. And the same will apply if the he sells it without the permission of the owner, but the owner endorses the transaction later. But if the mortgagor sells it with the permission of the mortgagee, with an understanding that its proceeds will be be mortgaged, that is, the sale proceeds of that property will get mortgaged like the property itself, then he must follow the understanding. And if he contravenes it, the transaction will be void, except when the mortgagee gives his assent.
2317. If the creditor demands the repayment of debt when it is due, and the debtor does not repay it, the creditor can sell the mortgaged property and collect his dues, provided that he had been authorised to do so. And if he was not authorised to do so, it will be necessary to obtain permission from the debtor. And if the debtor is not available, he should obtain permission for the sale of the property from the Mujtahid. In either case, if the sale proceeds exceed the amount due to him, he should give the amount in excess of his debt to the debtor.
2318. If the debtor does not possess anything other than his house he occupies, and the essential household effects, the creditor cannot demand the repayment of debt from him. But, if the thing mortgaged by him is his house and its household effects, the creditor can sell them, and realise his dues.
Transactions » Rules regarding Surety (Zamanat)
2319. If a person wishes to stand surety for the repayment of the debts of another person, his act in this behalf will be in order, only when he makes the creditor understand by his words in any language, or by conduct, that he undertakes the responsibility for the repayment of the debt, and the creditor also accepts the deal. It is not necessary that the debtor, too, should be agreeable.
2320. It is necessary that the guarantor and the creditor are adult and sane, and have not been coerced by anyone. Furthermore, they should not be feeble-minded or bankrupt. However, these conditions are not applicable to the debtor. Therefore, if a person stands surety to repay the debt of a child, an insane person or a feeble-minded squanderer, the arrangement is in order.
2321. When a person gives a guarantee with a condition, as when he says: "If the debtor does not repay your debt, I shall pay it", it is a matter of Ishkal to accept such a conditional guarantee as valid.
2322. A man giving guarantee should know that the person for whom he stands surety is actually a debtor. If someone is still considering to take a loan, one cannot stand as a guarantor till such time when the loan has been taken.
2323. A person can stand surety for someone only when the creditor, the debtor, and the property given as loan, are actually specified. Therefore, if there are two creditors of a person, and a person wishing to guarantee says: "I guarantee to pay the debt of one of you" his being a guarantor is void, because he has not specified as to whose debt he would pay. Also, if a person is the creditor of two persons, and a person giving guarantee says: "I guarantee to pay you the debt of one of them", his becoming a guarantor is void, as he has not specified which person's debt he would pay. Similarly, if a person is owed 30 kilos of wheat and $10 by another person, and a person wishing to be a guarantor says: "I guarantee to pay one of your two debts", and does not specify whether he guarantees payment of wheat or money, the guarantee is not in order.
2324. If a creditor gifts the guarantor with the debt owed to him, the guarantor cannot claim anything from the debtor, and if the creditor gifts him with a part of his debt, the guarantor cannot demand that part from the debtor.
2325. If a person becomes a guarantor for the payment of someone's debt, he cannot withdraw from his responsibility as a guarantor.
2326. As a precaution, the guarantor and the creditor cannot stipulate an option for cancellation of the guarantee at any time they wish to do so.
2327. If a person was capable of paying the debt of the creditor at the time he stood as a surety, the creditor cannot cancel his guarantee and demand the payment of debt from the first debtor, even if the guarantor may have become poor afterwards. And the same rule will apply if the surety at the time of guaranteeing was not capable of paying the debt, yet the creditor agreed to his becoming the guarantor despite knowing it.
2328. If at the time of standing surety, a person was incapable of paying the debt of the creditor, and the creditor not knowing the position, now wishes to cancel his guarantee, it will be a matter of Ishkal, especially if the surety becomes capable of paying the debt before the creditor takes notice of the matter.
2329. If a person guarantees the payment of the debt of a person, without obtaining his permission, he (the surety) cannot demand anything from the debtor.
2330. If a person guarantees the payment of debt with the permission of the debtor, he can demand that amount or quantity from the debtor even before having paid anything to the creditor. But if he paid, or delivered a commodity other than the one which was owed, he cannot ask the debtor to pay or deliver to him that commodity. For example, if the debtor owed 10 tons of wheat, and the guarantor settled the debt with 10 tons of rice, he cannot demand rice from the debtor, except when the debtor agrees to the arrangement, in which case, there is no objection.
Transactions » Rules regarding personal guarantee for bail (Kafalat)
2331. Personal surety or security means that a person takes the responsibility for the appearance of a debtor, as and when the creditor asks for him. A person who accepts such a responsibility is called Kafil (guarantor).
2332. A personal surety will be valid only when the guarantor makes the creditor understand by words (in any language), or conduct, that he undertakes to produce the debtor in person as and when demanded by the creditor, and the creditor also accepts the arrangement. As a precaution, the debtor's consent is also necessary for the validity of such a guarantee; in fact, as a matter of precaution, both the debtor and the creditor must accept the Kafalat.
2333. It is necessary for a guarantor (Kafil) to be adult and sane, and he should not have been under any coercion or pressure, and he should be able to produce the person whose guarantor he becomes. Similarly, he should not be a feeble-minded squanderer or a bankrupt, particularly if he has to spend his wealth in order to be able to produce the debtor before the creditor.
2334. Anyone of the following five things will terminate the personal surety (bail guarantee):
When the guarantor hands over the debtor to the creditor, or if the debtor himself surrenders to the creditor.
When the debt of the creditor has been discharged.
When the creditor himself forgives the debt, or transfers it to someone else.
When the debtor or the guarantor dies.
When the creditor absolves the guarantor from his personal surety.
2335. If a person forcefully releases a debtor from the hands of his creditor, and if the creditor does not have access to the debtor, the person who got the debtor released should hand him over to the creditor, or pay his debt.
Transactions » Rules regarding deposit or custody or trust (Amanat)
2336. When a person gives his property to another person, and tells him that it is deposited in trust, and the latter accepts it, or, without uttering a word, by a simple conduct, the depositor and the receiver both understand and accept the intention, then they must follow the rules of Amanat as will be explained later.
2337. Both the trustee and the depositor should be baligh and sane, and should not have been forced by anyone. Therefore, if a person deposits some property with an insane person, or a minor, or if an insane or a minor deposits some property with someone, their action will not be in order. Of course, it is permissible for a discerning child to deposit someone else's property with that person's consent. Similarly, a depositor must not be a feeble-minded squanderer or a bankrupt. But if the bankrupt person deposits a property from which he has not been debarred, there is no objection. Also, the trustee must not be a feeble-minded squanderer or a bankrupt, if the protection of the property under his care involves spending from the wealth from which he is debarred.
2338. If a person accepts a deposit from a child without the permission of its owner, he should return it to its owner. And if that deposit belongs to the child himself, it is necessary that it is delivered to his guardian; and if it gets lost or destroyed before the delivery, the person who accepted the deposit must compensate for it. But if he had secured it from the child with the intention of delivering it to the guardian, and if he had not been careless in its safekeeping, he will not be responsible for a loss or a damage. The same rule will apply in the case of an insane depositor.
2339. If a person cannot look after the deposit, and the person making the deposit is not aware of his incapability, he should decline to accept the deposit.
2340. If a person tells the owner of the property that he is not prepared to look after his property, and does not accept it, yet the owner leaves it there and goes away, and then the property perishes, the person who has declined to accept the deposit will not be responsible for it. However, the recommended precaution is that, if possible, he should look after that property.
2341. A person who gives something to another person as a deposit, can abrogate the arrangement as and when he likes, and similarly, one who accepts the deposit can do the same as and when he likes.
2342. If a person renounces the custody of the property deposited with him and abrogates the arrangement, he should deliver the property to its owner or to the agent or guardian of its owner, as quickly as possible, or inform them that he is not prepared to continue as a custodian. But if he does not, without any justifiable excuse, deliver the property to them and also does not inform them, and if the property perishes, he should give its substitute.
2343. If a person who accepts a deposit does not have a suitable place for its safe keeping, he should acquire such a place, and should take care of the deposit in a manner that he would not be accused of negligence. But if he acts carelessly in this regard, and the property is lost or damaged, he will have to compensate for it.
2344. If a person who accepts a deposit has not been negligent in looking after it, nor has he gone beyond moderation, and then the property unexpectedly perishes, he will not be responsible for it. But if he has been careless about its security, say, by keeping it at a place which is vulnerable to theft, or if he commits such excesses like using those articles of deposit without the owner's permission (like wearing the dress or riding the vehicle or the animal etc) and then the deposited property is lost or damaged, he should pay the owner its compensation.
2345. If the owner of a property specifies a place for its safe keeping, telling the person who has accepted the deposit: "You will secure the property here, and even if you suspect that it might get lost here, you must not take it elsewhere", in such case, he cannot transfer it to another place, and if he does, and it is lost, he is responsible.
2346. If the owner indicated a place for the security of his deposit, but he did not mean to specify it to the exclusion of other suitable places, the person accepting the deposit can transfer it to a place which is equally safe, or safer than the first place, and if it is lost or damaged there, he will not be responsible.
2347. If the owner of a deposit becomes permanently insane or unconscious, the deposit is automatically abrogated, and the person who had the deposit as trust, should return it immediately to his guardian, or inform him. And if he does not deliver the property to his guardian without a justifiable excuse, and is also negligent in informing him, and the property perishes, he should give him its substitute. But if the insanity or being unconscious is intermittent, than the deposit cannot be considered as automatically abrogated.
2348. If the owner of the deposit dies, the transaction is nullified; and if the deposit is transferable to the heirs without any liability, the trustee should deliver the deposit to the heirs, or inform them about it. And if he fails to do so, without any justifiable excuse, he will be responsible for its loss or damage. However, if he delayed to investigate whether the claimants were the right heirs or not, or whether there were other heirs besides them, and showed no negligence on his part in parting with the deposit or informing the heirs, he will not be responsible for any loss or damage.
2349. If the owner of the deposit dies, and it devolves upon his heirs, the trustee of the deposit should give the property to all the heirs, or to the person who has been authorised by all of them to receive the property. Hence, if he gives the entire property to one heir without the consent of others, he will be responsible for the shares of the remaining heirs.
2350. If the trustee of the deposit dies, or becomes permanently insane or unconscious, his heir or guardian should inform the depositor of the property, or deliver the property to him as quickly as possible. But if insanity or unconsciousness is intermittent, the deposit cannot be termed as void.
2351. If a person with whom a property has been deposited, observes in himself the signs of approaching death, as a precaution he should, if possible, deliver the deposit entrusted to him to its owner, his guardian or his agent, or inform him. And if it is not possible to do so, he should make such arrangement which would satisfy him that the deposit would reach its rightful owner after his death. For example, he should make a Will about it, attested by witnesses, and give the name of the depositor to the executor of his Will and to the witness, describing fully the nature of the deposit, and the place where it is kept.
2352. If a person with whom a property has been deposited, sees in himself the signs of approaching death, and does not act according to his obligation as mentioned in the foregoing rule, and the property suffers loss or damage, he will be responsible for the deposit, and should make amends for it. But if he recovers from his illness, or after some time repents and acts according to his obligations, then he will not remain responsible.
Transactions » Rules regarding borrowing and lending (Ariyat)
2353. Ariyat means that a person gives his property to another person for use without asking anything in exchange.
2354. It is not necessary in the case of Ariyat that a formal formula be pronounced. So, for example, a person gives a dress to someone with the intention of lending, and he takes it with the intention of borrowing, it is in order.
2355. Lending a thing which has been usurped, and a thing which belongs to the lender but its benefit has been assigned to some other person, like, if it has been given on lease, will be valid only when the owner of the usurped thing, or the assignee is agreeable to its being lent.
2356. The assignee of any benefit, like a lessee, can lend the object or property he has leased, to others. But, as a precaution, he cannot give it into the possession of the borrower without the owner's permission.
2357. If an insane person, or a minor child, or one who is bankrupt, or a feeble-minded squanderer, lends his property it is not valid. But if, the guardian of such persons considers it expedient to lend the property under his guardianship, there is no harm in it. Similarly, if a minor acts as an intermediary in delivering the lent article to the borrower, there is no objection.
2358. If a person who has borrowed something is not negligent in its keep, nor does he go beyond moderation in its use, he will not be responsible if it is lost or damaged by chance. However, if the two parties stipulate that, the borrower would be responsible for loss or damage, or if the thing borrowed is gold or silver and it is lost or damaged, the borrower should compensate for it.
2359. If a person borrows gold or silver and stipulates that if it is lost or damaged, he will not be responsible, he is not responsible if it is lost.
2360. If the lender dies, the borrower should give it to the former' heirs, acting according to rule 2348 in respect of the deposits.
2361. If the lender is incapacitated in such a way that he does not have any right of disposal or discretion over his property, like, if he becomes insane or unconscious, the borrower must act in the manner explained in rule 2348 in respect of deposits.
2362. A lender can rescind the transaction as and when he likes, and the borrower can also do so at any time he wishes.
2363. Lending something which is not halal to use, like, instruments of amusement and gambling, and utensils of gold and silver for eating or drinking, or for any other purposes, is void. However, giving them on loan for the purpose of decoration is permissible, although precaution is that they should not be given on loan even for this purpose.
2364. Giving on loan a sheep for the use of its milk and wool, and lending a male animal for mating, is in order.
2365. If a borrower gives the borrowed property to the owner, or to his agent, or guardian, and thereafter that thing is lost or damaged, the borrower is not responsible. But if he takes it to a place without the permission of its owner, or his agent, or guardian, although it may be a usual place where the owner usually kept it - for example, if he takes the borrowed horse to the stable which has been prepared for it by its owner, and ties it there, and it is lost or destroyed later, or some one destroys it, the borrower is responsible for it.
2366. If a person lends a Najis thing, and if the situation is like the one explained in rule 2065, he must inform the borrower about it being Najis.
2367. If a person has borrowed a thing, he cannot give it to another person on hire or loan, without the permission of its owner.
2368. If a thing is borrowed, and is then lent to another person with the permission of its owner, and the first borrower dies or becomes insane, the second lending does not become invalid.
2369. If a borrower knows that the borrowed property has been usurped, he should deliver it to its rightful owner, and he cannot give it to the lender.
2370. If a person borrows something about which he knows that it has been usurped, and utilises it, and then it is lost or damaged while in his possession, the rightful owner can demand compensation for that thing, and the benefit derived from it, from him, or from the lender who usurped it. And if he takes that compensation from the borrower, the borrower cannot claim from the lender what he has paid to the rightful owner.
2371. If the borrower does not know that the property which he has borrowed is a usurped one, and it is lost or damaged while it is with him, and if its owner receives compensation from him, he too, can demand from the lender what he has paid to the owner. But if the thing borrowed is gold or silver, or if the person who lent him the property stipulated that if it is lost or damaged he will have to give him compensation for it, he cannot demand from the lender the compensation which he gives to the rightful owner of the property.