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Books Section > The Religion of Islam > Acquisition and
Disposal of Property
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).
This page was printed from the 'Official Website of the Ahmadiyya
Anjuman Isha'at-e-Islam Lahore (Lahore Ahmadiyya Movement for
the Propagation of Islam)'
located at http://aaiil.org
or http://www.aaiil.org