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Acquisition
and Disposal of Property:
Acquisition of
Individual Property:
Property may be acquired in
three ways, by earning (iktisab), by inheritance
(warathah) and by gift (hibah). Of these,
inheritance, on account of its importance, is dealt with in
a separate chapter. Acquisition of property by the
individual, whether male or female, is recognized by
Islåm as one of the basic laws regulating human
society: "For men is the benefit of what they earn. And for
women is the benefit of what they earn" (4:32). Both sexes
have also an equal right to inheritance of property: "For
men is a share of what the parents and the near relatives
leave, and for women a share of what the parents and the
relatives leave" (4:7). No limitation is placed upon the
property or wealth which an individual may acquire or give
away. The Quran speaks even of heaps of gold being in the
possession of a man which he may give away to a woman as her
dowry: "And (if) you have given one of them a heap of gold,
take nothing from it" (4 :20). Islåm is thus opposed
to Bolshevism, which recognizes no individual right of
property; but it is at the same time socialistic in its
tendencies, inasmuch as it tries to bring about a more or
less equal distribution of wealth.
Unlawful Means of
Acquiring Wealth:
All unlawful means of
acquiring property are denounced: "O you who believe, devour
not your property among yourselves by illegal methods except
that it be trading by your mutual consent" (4:29); "And
swallow not up your property among yourselves by false
means, nor seek to gain access thereby to the judges, so
that you may swallow up a part of the property of men
wrongfully while you know" (2:188). The latter verse alludes
to bribery. Dacoity and theft are spoken of elsewhere as
punishable crimes (5:33, 38). Misappropriation is forbidden:
"Allåh commands you to make over trusts to those
worthy of them" (4:58). Gambling is prohibited as being a
false or dishonest means of acquiring property: "They ask
thee about intoxicants and games of chance. Say, In both of
these is great sin and some advantage for men, and their sin
is greater than their advantage" (2:219) "Intoxicants and
games of chance ... are only an uncleanness, the
devil’s work; so shun it that you may succeed" (5:90).
Intoxicating liquors and gambling are mentioned together in
both places, and one of the reasons for their prohibition is
that they are an aid to creating mischief and enmity between
members of the same society: "The devil desires only to
cause enmity and hatred among you by means of intoxicants
and games of chance" (5:91). All kinds of lotteries and card
games etc., involving a stake, however small the sum
involved, fall within the definition of games of chance, and
are therefore prohibited by Islam. They not only promote
habits of indolence and are thus a negation of honest
labour, but also reduce some members of society to penury
while others prosper at their expense. Usury, which is dealt
with later on, is also prohibited for the same
reason.
The Quran on the
Exercise of Property Rights:
The Quran gives full rights of
disposal of property to its owner, whether male or female,
but at the same time, it requires the owner to be most
careful in spending it. There are many injunctions of a
general nature to that effect. Thus, speaking of the
righteous servants of God (‘ibad al-Rahman) it
says: "And they who, when they spend, are neither
extravagant nor parsimonious, and the just mean is ever
between these" (25:67). And elsewhere: "And make not thy
hand to be shackled to thy neck, nor stretch it forth to the
utmost limit of its stretching forth, lest thou sit down
blamed, stripped off" (17:29). But it does not content
itself with these general directions, and gives society or
the state a right to interfere when money is being
squandered by its owner: "And make not over your property,
which Allah has made a (means of) support (qiyam) for
you, to the weak of understanding (sufaha’), and
maintain them out of it, and clothe them and give them a
good education" (4:5). Here certain owners of property are
called sufaha’, and the community or the state
is enjoined not to give such people control of their
property, which is here described as your property,
because Allah has made it "for you a means of support"; and
the rule is laid down that these owners of property should
be maintained out of the profits of the property, the
management being clearly in other hands. Thus wealth, though
possessed by individuals, is recognized as a national asset,
and a check placed upon the rights of the individual if
money in his possession is being wasted. Sufaha’
is the plural of safih which means a person
deficient or unsound in intellect or
understanding or having little or no
understanding (TA., LL.). The commentators make various
suggestions as to what is here meant by this word, some
saying that it applies to women or children, but Ibn Jarir
rightly points out that this view is wrong, and the word
conveys a general significance (IJ-C. IV, p, 153). In fact,
minors are not spoken of in this verse at all, since they
are mentioned separately in the verse that follows, and the
sufaha’ of this verse are persons who, on
account of deficiency or unsoundness in intellect, are
unable to manage their own property.
This conclusion is further
corroborated by the use of the word safih in
connection with the contracting of debts: "But if he who
owes the debt is unsound in understanding (safih) or
weak (dza’if), or if he is not able to dictate
himself, let his guardian dictate with fairness" (2:282).
Here the safih and the dza’if are
mentioned separately; the former signifying the weak in
understanding whether male or females, and the latter
minors. Thus, the Quran requires that persons who, on
account of weakness of intellect, mismanage their property
and squander their wealth should be deprived of the control
of their property and maintained out of its profits, the
control being handed over to some person who is called a
waliyy (guardian) in 2:282.
Hajr or
Restrictions on Disposal of Property:
This restriction on the
exercise of rights of property by individual owners is
spoken of in Tradition collections as hajr (Bu.
43:19), which literally means what is forbidden, that
being also the terminology of the jurists. Tradition lays
great stress on saving wealth from being wasted. Bukhari has
the following heading for one of his chapters: "There is no
charity unless a man has sufficient to give, and whoever
spends in charity and he is himself in want or his family is
in want or he has a debt to pay, it is more in the fitness
of things that the debt should be paid than that he should
spend in charity or free a slave or make a gift, and such a
gift or charity shall be annulled, for he has no right to
waste the wealth of the people (amwal al-nas); and
the Holy Prophet has said, "Whoever takes the wealth of the
people that he may waste it, Allah will destroy him, unless
he is a man well-known for his patience (sabr) so
that he prefers others before himself, though poverty may
afflict him" (Bu. 24:18). Here, the individual property of a
man is called the wealth of the people, and a man is
prohibited from making even charitable gifts when he does
not have sufficient to support those dependent on him.
According to tradition the Prophet is reported to have said:
"Allah hates three things in you: useless talk and wasting
of wealth and asking or begging (su‘al)
frequently" (Bu. 24:53). This tradition is repeated
frequently in the Bukhari and other collections, and
forms the basis of restrictions [Footnote: For example
the laws placing restrictions on disposal of agricultural
property fall within the definition of hajr. In this
case, the owners of agricultural land are prevented from
selling their lands in certain cases, except with the
permission of the State: and this measure is in their own
interest, for otherwise all agricultural land would
gradually pass out of their hands and they would be left
without any means of support.] which may rightly be laid
on owners of property for their benefit. The State is
therefore entitled to make laws for the benefit of owners of
property, placing restrictions on them as to the disposal of
that property.
Guardian of
Minor:
A guardian is also appointed
to deal with the property of minors. The Quranic injunction
on this point is as follows: "And test the orphans until
they reach the age of marriage. Then if you find in them
maturity of intellect, make over to them their property, and
consume it not extravagantly and hastily against their
growing up. And whoever is rich, let him abstain, and
whoever is poor, let him consume reasonably. And when you
make over to them their property, call witnesses in their
presence; and Allah is enough as a Reckoner" (4:6). A minor
is thus not allowed to manage his own property which must be
made over to a guardian. If the guardian is rich, he is
required to do the work of guardianship honorarily, and if
he is poor, his wages would be a charge on the property. The
age of majority is eighteen years, according to Abu Hanifah,
in the case of males and seventeen in the case of females
(H. II, p. 341), but according to Shafi’i and Ahmad, it
is fifteen in both cases (H. II, p. 342). In a tradition it
is stated that ‘Ibn ‘Umar was not enlisted in the
army when he was fourteen years old but was taken when he
was fifteen (Bu. 52:18), but this by no means shows that
maturity of intellect is attained at fifteen, for at that
time there were so few Muslims that could take the field
against overwhelming numbers, that boys and old men had to
be enlisted perforce.
Honest Dealing in
Business:
Subject to what has been
stated above and what will be stated further on, the owner
of movable property, whether a male or a female, has the
right to sell or barter it. The Quran lays stress on honest
and straight dealing in the very earliest revelation: "Woe
to the cheaters! who, when they take the measure (of their
dues) from men, take it fully; and when they measure out to
others or weigh out for them, they give less than is due"
(83:1-3); "And give full measure when you measure out and
weigh with a true balance. This is fair and better in the
end" (17:35); "Give full measure and be not of those who
diminish; and weigh things with a true balance, and wrong
not men of their dues and act not corruptly in the earth
making mischief" (26:181-183). Tradition also lays stress on
honest dealing, so much so that if there is any defect in a
thing it must be pointed out to the intending buyer (Bu.
34:19; Ah. III, p. 491). The Prophet himself is reported to
have written to ‘Adda’ ibn Khalid as follows:
"This is the writing by which Muhammad, the Messenger of
Allah, has made a purchase from ‘Adda’ ibn Khalid,
the barter of a Muslim with a Muslim, there is no defect in
it nor any deception or an evil" (Bu. 34:19). According to
another tradition he is reported to have said: "If the two
parties speak the truth and make it manifest, their
transaction shall be blessed, and if they conceal and tell a
lie, the blessing of their transaction shall be obliterated"
(Bu. 34:19). Honesty and bona fides in matters of
sale are stressed in a large number of
traditions.
General Directions
Relating to Sale Transactions:
The many other details that
are met with in Tradition need not be stated here, being but
of minor importance; a few only which are of a general
nature are briefly noted. Men and women are expressly
mentioned as selling to and buying from one another, so that
there is not the least sex disqualification in this respect
(Bu. 34:67). While a transaction is being carried on with a
man, another should not intervene (Bu. 34:58), but auction
is allowed (Bu. 34:59). There is no restriction as to whom a
man may sell his property, but the withholding of
food-stuffs so that they may become dear (ihtikar) is
prohibited (Bu. 34:54), and so is the inflation of prices in
general. The seller of cattle is prohibited from leaving
them unmilked some days before selling, so that they may
fetch a higher price (Bu. 34:64). Sale of fruits or crops
before they are in a fit condition to be reaped is
deprecated, because it gives rise to disputes (Bu. 34:85).
In the tradition narrated in this chapter, it is expressly
stated that it was not an injunction but an advice. If the
fruits on trees are valued, they may be sold (Bu. 34:75, 82,
83). Imaginary sales, when there are no goods to deliver,
are prohibited (Bu. 34:61); neither should one sell what one
does not possess (Ah. II, pp. 189, 190). The sale of land is
not favoured, and it is recommended that one should not sell
his land or house unless he intends to purchase other land
or another house with the money (Ah. I, p. 190; III, p.
467). The taking of oaths in sale transactions is expressly
forbidden (Ah. V, p. 297).
Mortgage:
Mortgage of property, or
giving it as security for debt, is also allowed. The Quran
expressly allows the giving or taking of a security of which
possession is taken by the mortgagee (rihan-un
maqbudzah) (2:283); and though this case is mentioned in
connection with a journey, the words have been taken by all
commentators as conveying a general permission, and reliable
traditions corroborate this conclusion. It is related that
the Prophet himself left his shield as security with a Jew
when borrowing some barley from him (Bu. 48:1, 2). When a
horse was given as a security, the mortgagee was allowed to
use it for riding as a compensation for feeding it.
Similarly, a milch-animal’s milk was allowed to the
mortgagee when he fed the animal (Bu. 48:4). Hence, it is
evident that when agricultural land or a house is mortgaged
with possession, the mortgagee can derive benefit from it
when he pays land-revenue or house-tax, or spends money on
the upkeep of the property.
Bequest:
An owner of property is also
allowed to bequeath his property for a charitable object or
to anyone excepting a legal heir. This is called
wasiy-yah, and the making of a will is specially
recommended. The Quran speaks of the making of a will as a
duty incumbent upon a Muslim when he leaves sufficient
property for his heirs: "It is prescribed for you, when
death approaches one of you, if he leaves behind wealth for
his parents and near relatives, to make a bequest in a
kindly manner; it is incumbent upon the dutiful" (2:180).
And the Prophet is reported to have said: "It is not right
for a Muslim, who has property to bequeath, that he should
pass two nights without having a written will with him" (Bu.
55:1). But this duty, or right, is subject to certain
limitations. In the first place, not more than one-third of
the property can be disposed of by will (Bu. 55:2, 3); and
secondly, no will can be made in favour of an heir (AD.
17:6; Ah. IV, p. 186). But, as expressly stated in the
Quran, the making of a will is incumbent only on well-to-do
people. This is also mentioned in Traditions (D. 22:5). The
reason for limiting the bequest to one-third is clearly
stated in a tradition: "That one should leave his heirs free
from want is better than that they should be begging of
other people" (Bu. 55:2). And the reason for excluding the
heirs is that no injustice may be done to certain heirs at
the expense of others. A wasiyyat which is against
these principles would be ineffective to that extent. It may
be added that if a property in respect of which a bequest is
made is encumbered with a debt, the debt is payable before
the will is executed [See Chapter VIII for a complete
discussion on Inheritance.].
Gift:
An owner of property has also
the right to dispose of his property by gift (hibah).
The giving and accepting of gifts is recommended very
strongly, and even the smallest gift is not to be despised
(Bu. 51:1). A gift is allowed in favour of a son, but it is
recommended that similar gifts should be made in favour of
other sons (Bu. 51:12). The husband can make a gift to his
wife, and the wife to her husband, or others than husband
(Bu. 51:14, 15). Gifts from, and in favour of, non-Muslims
are allowed (Bu. 51:28, 29). A gift may also be compensated
(Bu. 51:11). The jurists allow a hibah bi-l-‘iwadz,
or gift for a consideration, and also hibah
bi-sha¸ti-l- ‘iwadz, or a gift made on the
condition that the donee shall give the donor some
determinate thing in return for the gift (AA.). The gift
transaction (hibah) is complete when the donee has
accepted it and taken possession of the gift. It is not
allowed to a person to revoke the hibah when it has
been accepted by the donee (Bu. 51:30). While a will is
allowed only to the extent of one-third of the property, no
such limitation exists on hibah, because in this case
the owner divests himself of all rights in the property
immediately, while in the case of a will, not the owner but
the heirs are deprived.
Waqf:
Waqafa means literally
he was, or became, still or stationary
or he continued standing (LL.), and in law
waqf is "the settlement in perpetuity of the usufruct
of any property for the benefit of individuals or for a
religious or charitable purpose" (AA.). Subject to
conditions already noted, and those which follow, an owner
of property has a right to make his property waqf, or
dedicate it to a particular purpose. In Bukhari the
traditions relating to waqf are given in the book of
Wasaya (Wills), though the two differ in many
respects, Waqf, like gift, takes effect immediately
while the will takes effect after the death of the testator,
and it differs from both, gift and will, inasmuch as the
property which is dedicated remains untouched, not being the
property of a particular person, and it is only the income
drawn from it that is spent on the particular objects
specified in the waqf deed. Many cases of
waqf are reported in Tradition. Abu Talhah created a
waqf, the income from which was to be spent on his
poor relatives (aqarib), and this was done under the
Prophet’s direction (Bu. 55:10). From (this it is
evident that a man can create a waqf for the benefit
of his own relatives. It is made clear in another tradition
that a man’s son or his wife falls within the
definition of his relatives (Bu. 55:11). The man who creates
a waqf is allowed to draw from it, for he himself may
be its manager ({mutawalli) as well as anybody else,
even though this be not stated in the waqf deed (Bu.
55:12). Another tradition states that ‘Umar created a
waqf in accordance with the directions of the Prophet
in favour of the poor as well as his rich relatives (Bu.
55:29). There are other instances on record in which a
waqf was created for the benefit of the poor as well
as the near relatives (aqrabin) (Bu. 55:29). The
person who creates the waqf may also include himself
among the beneficiaries of the trust (Bu.
55:33).
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