Professional Documents
Culture Documents
[ISF 2102]
Course
Outline
Qawaid al-Fiqhiyyah
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Definition
Qawaid is plural of qaada, means
base, foundation, principles
Al-fiqhiyyah is plural of faqaha,
means proper understanding of
what is intended
Qawaid al-fiqhiyyah are general
rules which can be applied in
various cases that come under
common rulings
Definition
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Characteristics
In form of short epithetical
statements
Derived from the detailed reading
of the rules of fiqh on various areas
General in nature
Actual wordings taken from AlQuran and Sunnah
Characteristics
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Importance
To know how previous scholars
solved problems and formed
general rules
To solve new problems
To promote Islam is comprehensive
religion
Importance
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Related disciplines
Qawaid usuliyyah
Deals with sources of Islamic Law
with their interpretation for
deriving law
How to recognize prohibition
Qawaid Usuliyyah
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Related disciplines
Dawabit fiqhiyyah
Restricted to one particular field
For example Imam Malik said If
something does not make your
clothing impure, it will not make
the water impure
Dawabit Fiqhiyyah
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Related disciplines
Al-Ashbah wa al-Naza-ir
From letter that Caliph Umar alKhattab addressed to a judge, Abu
Musa al-Ashari of Basrah
As-Subkis
To signify that something is very
similar to something else
Example: Private authority is stronger
than public authority
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Types
Which taken from a
particular text of AlQuran and Sunnah
masyaqqah tajlib taysir,
hardship begets facility
umuru maqasidiha,
Acts are judged by their
goals and purposes
dhararu yuzal, harm
must be eliminated
HISTORY
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HISTORICAL DEVELOPMENT
Origin and
Formation
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Start 399 AH
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Emergence of qawa'id during the
lifetime of Prophet (PBUH)
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Quranic verses and the Prophetic
traditions are the essential source from
which legal rulings are deduced
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Qawa'id developed after prophet's
(PBUH) demise.
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400 1100 AH
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Imam al-Dabusi Abd Allah b. Umar
Zayd al-Hanafi (430AH) composed his
book Ta'sis al-nazr, continuing alKarkhi's work on jurisprudential
guidelines specifically on legal axioms.
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Amongst the pioneering qawa'id works,
also considered the first work on
comparative law
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1200 AH - onwards
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At first the jurisprudential maxims was highly
dispersed and embedded among other legal arts
such as legal-theoretical principles and
hypothetical problems.
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Ottoman empire scholars developed a careful
process by which they selected and ordered the
statutes in the most concise expression
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This codification known as mejelle became like a
legal encyclopedia of practical rulings.
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Hanafi Mazhab
Usul Al-karkhi written by Abu Al-Hassan AlKarkhi from Iraq (340 AH). Each Qa'idah
begins with a word Al-Asl (in principal) and
includes 36 Qa'idah
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Ta'sis An-Nazar was written by Abu Zaid AdDabusy (430 AH) from ad-Dabusiyyah and
comprised 68 Qa'idah
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Al-Ashbah Wan-Naza'ir was written by Ibn
Nujaim (970 AH) from Egypt. This book
includes 25 Qaidah
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Maliki Mazhab
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Shafi'iy Mazhab
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Hanbali Mazhab
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MATTERS ARE DETERMINED BY
TO INTENTIONS
Definition
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Translation of Arabic
Qawaid al-Fiqhiyyah
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Definition
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Hadith
Actions are but by intention and every man shall have but that
which he intended. Thus he whose migration was for Allah and
His messenger, his migration was for Allah and His messenger,
and he whose migration was to achieve some worldly benefit or
to take some woman in marriage, his migration was for that for
which he migrated
(Narrated by Umar
ibn al-Khattab)
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Application in Fiqh
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Related Maxim:
-Al-ibrah fi al-uqud li-al-maqasid wa-al-maani la li-al-alfaz
wa-al-mabani
The effect in contracts depends on the intention and
meaning and not the words and phrases
Branches of the
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Certainty
Meaning
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Doubtfulness
Al-Zann (Conjecture)
An opinion or conclusion formed on the basis of incomplete information.
Yaqin (Certainty)
Meaning
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CERTAINT
Y
(Confirmed)
CERTAINTY
DOUB
T
continued
until
the uncertainty is
proven
Clear
evidenc
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Meaning
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Legal sources:
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Yunus,
10:36
History
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2 Hadith
History
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TAKAFUL
Takaful participant paid the takaful contribution to a takaful
agent
- did not get any receipt
The participant is liable for the payment if the takaful agent
denies the payment
or
The participant is liable for the payment if the takaful agent
resign or terminated from company
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HARDSH
IP
To be
heavy/unbearab
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Refer to legal
excuses such as
minority, illness
etc
FACILITY
To be easy
Legal mitigation
on account of
hardship as an
exception to the
general rules
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Definition
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Hardship
begets
facility
Subject :
Hardship
Ruling :
Facility
General Application
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Al- Quran :
Allah intends for you ease, and He does not want make things
difficult for you
(Al-Baqarah:185)
On no soul doth Allah place a burden greater than it can bear (AlBaqarah:286)
He did not make any difficulty for you regarding the religion (din of
Islam)
(al-Hajj:78)
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Sunnah :
Abu Hurayrah narrated from the Prophet (s.a.w)
Religion is very easy and whoever overburdens himself in his
religion will not be able to continue in that way. So you should not
be extremist, but try to be near perfection and receive the good
tidings that you will be rewarded and gain strength by worshipping
in the mornings, the nights
Anas narrated from the Prophet (s.a.w)
Make things easy for the people and do not make it difficult for
them and make them calm (with gad tidings) and do not repulse
(them)
Narrated by Bukhari and Muslim
Aishah r.a said: Whenever the Prophet (s.a.w) was given a choice
between two things he chose the easier one unless it was a sin
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Travelling
Muslim also gets the permission to defer obligatory fasting.
It is permissible to cancel the contract of ijarah due to travelling
When judges are not available, it is permissible to sell a property that belongs to
travel companion who died during the journey. Sale proceeds is kept for his heirs
Sickness
Permission to defer obligatory fasting.
Can tayammum instead of wudu.
Can sit or lying down during solat if unable to stand
Coercion
Person who is forced to eat haram food otherwise harm/injury will be inflicted on
him that endanger his life is permissible to eat.
Person who is forced to say something Kufr, is permissible to say such thing as
long as his faith is maintained in Islam.
Type of hardship
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Forgetfulness
If the person commits something that will subject him to a
punishment, his forgetfulness can be used to waive the
punishment
Ignorance
Those who has share in the partnership property, didnt know that his partner has
sold that property his right in that property cannot be dispelled.
If a person declares his Islam in a country Islamic law is not implemented and
complete knowledge of Islamic Shariah has not yet been conveyed to him- excused if
he commits any divinely-prohibited matters not knowing about the prohibition.
Difficulty/Umum al-Balwa
Those who suffer the disease (unable to control the discharge of his urine), are
excused to perform solat in unclean (najis) condition.
Permissible to perform solat if got soil on the cloth during rainy days.
Type of hardship
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Deficiency / Al-Naqs
In the case of minor, insane person they are not obliged to
practice Islamic injunctions as much as matured sane
person if obliged, they would be in hardship
Women are not obliged to perform Jumaat prayer and Jihad.
Type of hardship
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1) IJARAH
If someone enters into a rental contract - travel for certain
reasons, he is allowed to cancel the rental contract. Under a
normal circumstance, a person is not allowed to cancel this type of
contract unless it is agreed between the contracting parties
beforehand. However, forcing a person to continue paying the
rental when he is not occupying the premise, will amount
to hardship, therefore theshariahis allowed the cancellation
under specific circumstances in order to avoid hardship.
2) BAY AL SALAM
A prompt payment for a commodity that the seller does not
posses is permissible producers who need finance for inputs.
If finance is not forthcoming at the time of sowing, production will
cease- harmful for entire community.
Sale before possession only confined to Bay Al-Salam and cannot
be used in other transaction
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Related
HARM MUST BE ELIMINATED
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""
(Harm may neither be inflicted nor be reciprocated)
Al-Hafiz Ibn Abd al-Barr, The meaning of this hatidh is Sahih,
al-usul. It was verified that the Prophet (s.a.w) said: The
Almighty Allah has ruled that a believers blood, property,
and dignity are unlawful to anyone and a believer must also
be thought good of.
As, one of the pillars of Shariah, this legal maxim is the basis
for prohibiting any harmful acts and arranging for any
compensation and punishment for the results of harmful acts.
Ibn al Najjar said: Rulings in the Islamic jurisprudence are set
either to bring or ward off harm, therefore they include the
protection of the five necessities which are religion, life,
posterity , property and dignity.
Definition
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Differences
Dhirara
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Between
Dharar
&
Definition
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include
acknowledged
experts,
such
as
Definition
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(continue)
Definition
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2.
Necessity is determined by the extent thereof
Under courts order to sale the assets of a negligent debtor to clear his liabilities,
it should start with the movable assets if this would suffice to clear the debt,
before selling his fixed assets. (Al-Sabuni, Al Madkhal al Fiqhi wa-Tarikh alTashri al Islami).
3.
Necessity does not invalidate the right of other
In case of leasing and farming has expired but it is yet to harvest, the contract
shall continue until the harvest at the usual time and the lessor shall pay the
rent, as the necessity of the lessor to the land, it doesnot invalidate the right of
rental property
Definition
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4.
An injury cannot be removed by a similar injury
Majallah al-Ahkam al-Adliyyah stipulated that, if a new defect appears in the
sold object during buyers custody and afterward another defect appears, the
buyer is not allowed to return the item due to age-old fault but entitled to
compensation of flaw.
5.
To avoid public injury, a private injury may be endured
Application: A distributor/supplier shall not intermix their sales item to creditor
for settling debt.
6 .
A greater injury may be avoided by a lesser injury
In a combined business, if the major shareholder wants the higher position
while it may harm the partner, the demand shall be responded, otherwise, his
harm would be more and may affect the employees.
7 .
Harm cannot establish a predecent
Through lapse of time, Dharar shall not be justify by tolerance.
Definition
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8 .
Preventing harm is preferred over attracting benefit
Shariah would ban such an act that would bring benefits while at the same
time causing harm to the world. Despite the benefit is valid.
Example: Casino and tobacco businesses contribute huge amount of tax yearly
to government, however the sector also corrupt the population and brings
cancer. This kind of business is not supported by Islamic Finance sector.
9 .
No reliance on mere imagination
Maxim is related to a matter of 'certainty and doubt'. Imagination or delusion
lies at the lowest rank of doubt. The Majela,(2003:12) "To imagination without
foundation on fact, no weight is give.
If a man exit from a house, running, with knife full of blood in his hand, and
later people came in and found a bleeding corpse, by evidence the man is
suspected the killer.
To eliminate harm decision is measured by evidence not imagination or theory.
Definition
CUSTOM IS AN ARBITER /
CUSTOM IS A BASIS OF
JUDGEMENT
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( al-adah muhakkamah)
CUSTOMS IS AN ARBITER
(Adah)
(Muhakkamah)
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Definition
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Definition
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THE
GENERAL
CUSTOMS
Widely spread all
THE
SPECIFIC
CUSTOMS
Specifically in
certain country,
place or among
certain group of
people
Example:
custom among
traders on what is
considered as a
defect
custom in some
countries of
allowing price to
be paid in
installments or
specific number of
installments
SHARIAHBASED
CUSTOMS
Eg: prayer,
zakat, hajj
etc
Definition
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1. Al-Quran
Allah S.W.T says in Surah Al-Baqarah verse 233 :
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Mothers suckle their children for two whole years if they wish to complete the
term, and
the father shall bear the cost of their food and clothing in a fair manner.
No one should be burdened with more than they can bear. (Surah Al-Baqarah:
233)
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2. Hadith
Abd Allah ibn Masud said:
What the Muslims determine to be good is good with
Allah
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Application in Fiqh
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Traditionally custom
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Seller
transaction
Buyer
Seller
transaction
Buyer
1. Buyer and seller not need to see each other to make the transaction
2. Firstly, the buyer has to confirm what goods that he decides to buy.
3. Payment are made using credit card. After all the information has been verified and
the card issuer has approved payment, the sale is concluded.
4. The seller will receive his payment on his account after a few days and the buyer will
receive his goods after some days by courier.
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Related Maxims
( al-maruf
urfan kal-mashrut
shartan)
A Matter recognized by custom is regarded as if stipulated by
agreement
Al-maruf
Well known standard practice among people in their transaction.
Al-mashrut
Something stipulated by one/both contracting practice in their
contractual agreement to make contract enforceable
Explanation of the Maxim
It means that the customary practice is to be considered without
the need of its stipulation in the contracts and dealings.
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Branch
Secondary or subsidiary matters.
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Quran
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Hadith
A man from Yemen asked the Prophet PBUH about
a drink called mizr, prepared from sorghum, which
they drink in his land, Allahs Messenger asked;
Does it intoxicant?
He said, Yes The messenger of Allah remarked,
Every intoxicant is forbidden.
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THE PRESUMPTION OF VALIDITY AND PERMISSIBILITY
APPLIES TO ALL CONTRACTS AND CONDITIONS
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The presumption of validity and permissibility applies to all contracts
and conditions
Asl
Root, origin, foundation, basis
The original rule for something, one which could possibly be overridden by
countervailing evidence for specific cases
Civil law presumption
Maxims: The presumption of validity and permissibility applies to all contracts and conditio
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Jawaz
To travel or cross a location, to pass by or through
Acceptability, permissibility
The basic rule for all things created by Allah is that they are halal
except for that which has been explicitly prohibited in the authentic
texts
Sihhah
An act which is accordance with the Shariah
Maxims: The presumption of validity and permissibility applies to all contracts and conditio
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It is He who created all that is on the earth for you (Surah al-Baqarah
verse 29)
God has already fully explained what He has forbidden you (Surah alAnam verse 119)
Maxims: The presumption of validity and permissibility applies to all contracts and conditio
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Hadith
Maxims: The presumption of validity and permissibility applies to all contracts and conditio
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Maxims: The presumption of validity and permissibility applies to all contracts and conditio
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Maxims: The presumption of validity and permissibility applies to all contracts and conditio
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Maxims: The presumption of validity and permissibility applies to all contracts and conditio
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Maxims: The presumption of validity and permissibility applies to all contracts and conditio
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Maxims: The presumption of validity and permissibility applies to all contracts and conditio
THE FUNDAMENTAL
REQUIREMENT IN EVERY
CONTRACT IS JUSTICE
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Definition
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Authority of the
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O my slaves, I have prohibited injustice upon
Myself, and I have made it prohibited betwwen
you, so do not oppress one another.
Numan ibn Bashir related that his father gave him a substantial
gift and went to the Prophet (peaace be upon him) asking him to
bear witness to the transaction. The Prophet asked him, do you
have other children as well? he said, yes. Prophet asked, did
you give all of them a similar gift? he said, no.
then do not call me as witness, for I do not bear
witness to Injustice
The Prophet said;
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Authority of the
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In Fiqh:
1. Two counter-values that are subject of a sale
contract must be known, specified,
deliverable and agreed upon; otherwise, there
will be no justice for the contracting parties.
2. It is unfair to stipulate that the lessee pay for
major maintenance of the leased property
because the long-term benefit is for the lessor
since he is its owner.
3. Lessee is not liable to pay the price of the subject
matter if it is damaged before it is delivered.
It is unfair to take payment without delivery of the
equivalent counter-value.
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ISF 2102
In Islamic Finance:
1. The contractual basis of the relationship between the
bank and the depositor is mudarabah. The two parties
share any profits while any financial loss is to be
borne by the rabb al-mal. It is unfair for the depositor
to demand a guarantee of the principal along with a
share of profits because it violates the principle of
justice in mudarabah contract. If the mudarib has
guarantee the capital, it becomes like a loan (qard).
2. Some banks require a customer who applies for house
financing to agree to a clause that will make the
customers heirs responsible for the debt is repaid. To
hold the heirs responsible of the deceased is contrary
to shariah, unless they had explicitly agreed to the
condition.
Qawaid al-Fiqhiyyah
ISF 2102
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THE GENERAL PRINCIPLE CONFERRING
VALIDITY OF CONTRACTS IS
2
THE CONSENT OF BOTH PARTIES
AND EFFECTIVE TERMS AND CONDITIONS
5
4TH MAIN LEGAL MAXIMS RELATING TO CONTRACT
The General Principle Conferring Validity Of Contracts Is The Consent Of Both Parties And Effective
Terms And Conditions
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ISF 2102
Definition
Qawaid al-Fiqhiyyah
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ISF 2102
Definition
Qawaid al-Fiqhiyyah
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ISF 2102
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ISF 2102
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ISF 2102
Authority of the
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ISF 2102
Authority of the
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ISF 2102
Authority of the
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ISF 2102
For example :
1. Party A sells all asset to part B without
specifying the price at the time the contract is
concluded. According to Hanafi school, the
contract can be verified if the two parties
agree on a specific price after the contract
session, due to the realisation of mutual
consent. Otherwise, the asset should be
returned to its owner
2. If it is proven that party A was forced to sell
his land (or any other asset) to party B, the
contract is invalid and party A has right to take
his land back (and return the selling price)
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ISF 2102
Example :
1. An audit find that an Islamic bank charged
a fee for early settlement of a deferred
payment sale agreement. The charge was
not mentioned in the contract signed with
the client. Therefore it is invalid. So, the
amount must be returned to the customer.
2. In order to avoid a lengthy legal action
process in case of specified trigger events,
the bank and customer in a property
financing may agree to assign disposal
right of the property to a third party
DEFERMENT CONSTITUTES A PART OF THE PRICE
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ISF 2102
Explanation:
1. - Ajal is related to the verb ajila/yajalu: to hesitate or linger
- Ajjala/yuajjilu means to delay or postpone
- Ajal: appointed time, a deadline, a respite or delay
- Bil ajal: on credit
2. - Qist is related to the verb qassata/yaqassitu: to distribute something, to pay in installment
- Qist also means share, portion, quantity, installment
3. - Thaman means cost, price or value
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ISF 2102
If payment is made on the spot, there is no harm in it; but if payment is delayed, it is not valid
gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, and salt for salt;
like for like, in equal amounts and hand to hand. But when the type (asnaf) differ, then sell as
you please as long as it is hand to hand
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ISF 2102
sell gold for silver as you please in a spot transaction, and sell wheat for dates as you please in a
spot transaction, and sell barley for dates as you please in a spot transaction
you who believe, when you contract a debt for a stated term, put it down in writing
Al Tabari quotes Ibn Abbas that the above verse was about
Forward (salam) sales sales in which the buyer pays the seller in advance for later
delivery
Delayed payment sale (bay bi thaman ajil) sale in which the buyer takes
immediate receipt of the good while the seller takes receipt of the payment at a
specified future date
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ISF 2102
2 of the Tabiin had a disagreement about salam sales and referred the matter to the
Companion Ibn Abi Awfa, who told them:
We used to make advance payment for wheat, barley, raisins and dates during the eras of the
Prophet, Abu Bakr and Umar
Allahs Messenger knew about this practise and permitted it on the condition that the volume or
weight of the item sold be known and the delivery date be specified
Aishah and Ibn Abbas narrated that Allahs Messenger bought grain from a Jew on credit and
mortgaged his armour to him
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ISF 2102
The Hanafi scholar al Kasani states that there is a difference in value between spot
and delayed delivery of the same amount:
there is no equality between spot and deferred payment because cash is better than debt and the
immediate has a higher value than the deferred
Whether the delay does represent portion of the price
Deferment
constitutes part of
the price
Deferment does
not correspond to
any part of the
price
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ISF 2102
those who consume riba cannot rise up except as one arises whom the devil has driven mad by his
touch. That is because they say trade is just like riba; whereas Allah permits trading and
forbids riba
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ISF 2102
However, a number of scholars disagreed with the view: Zayn al Abidin Ali Ibn
Husayn, Simak ibn Harb and a few Zaydi jurists. They based their view on:
Abu Hurayrah states that the Prophet prohibited 2 sales in one sale
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ISF 2102
Qawaid al-Fiqhiyyah
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ISF 2102
ISF 2102
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ISF 2102
(al- kharaj bi-dhaman)
Kharaj ()
Yield, Return, Revenue
The yield or separable
benefit or corpus resulting
from an owned asset
Daman ( )
Responsibility, Liability,
Guarantee
Liability for an asset in
case it is damaged or
destroyed
Definition
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ISF 2102
EXPLAINATION of the
MAXIM
GENERAL MEANING
The benefit of an asset is the right of one
who indemnifies it if it is damaged
A person who is held liable in case an asset is damaged,
deserved to take its benefits as compensation
Debtor can enjoy the money that he borrowed, since he is the
one who will pay its principal, under all circumstances
Profit earned without bearing liabilities/risk is prohibited
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ISF 2102
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ISF 2102
.
.
(Surah al-Baqarah : 275)
Abd Allah ibn Amr ibn al-As has quoted Allahs Messenger
(S.A.W.) saying;
Profit is not lawful..from that for which one has no liability,
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ISF 2102
Shirkat Wujuh
: A traders partnership,
without capital but based on good reputation.
Purchase good on credit
Liability proportion are created from the purchase that they
made
Sell the goods, repay the debt ÷ the profit
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ISF 2102
*BR. HAFIZI
2nd LEGAL MAXIMS DEALING WITH PROFIT & LIABILITY
(Al-Jawzu al-Shariyyu Yunfi al-amn)
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ISF 2102
- Al-Jawzu al-Shariyyu : Legal permission
The general permission of the Shariah to perform an action or to
leave it
- al-amn : Liability
Imam Ghazali defined liability (al-amn) as
Duty to return the same thing or its alternative which is equal in
value or price
Maxims Dealing With Profit & Liability: Legal Permission Negates Liability
Definition
Qawaid al-Fiqhiyyah
ISF 2102
1
The legal maxim means that an act which is
3 allowed by the law cannot be made the subject of
a claim to compensation.
2
In other words, if an injury was a result of a lawful
1 action, the injurer is not liable for the
damage caused, and subsequently, he is not
9 liable to compensate the affected person.
5 He shall not be liable to compensate the third
party that is afflicted by the damaged due to his
2 action as long as it was legally permissible
Definition
Qawaid al-Fiqhiyyah
ISF 2102
Conditions :
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9
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Necessity does not annul the right of others
Definition
Qawaid al-Fiqhiyyah
ISF 2102
Writings
about
the
maxim
1
3
2 Books of qawid :
1
9
Moden works :
5
2
Al-Manthr (al-Zarkash)
Manfi al-Daqiq (al-Khdim)
Al-Farid al-Bahiyyah (Mahmd Hamzah)
Maxims Dealing With Profit & Liability: Legal Permission Negates Liability
Definition
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2102
(91)
No blame lies on the weak, nor on the sick, nor on
those who can find nothing to spend if they are
sincere to Allah and His Messenger. There is no
way (to blame) against the doers of good. And
Allah is Forgiving, Merciful(91)
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ISF 2102
2. Hadith
:
:
" :
:
: :
:
" :
:
[Muslim]
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ISF 2102
Application in Fiqh
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ISF 2102
Qawaid al-Fiqhiyyah
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ISF 2102
Exception
Ijtihad is not set aside by another
Ijtihad
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ISF 2102
Ijtihad
Al-Ijtihad
Derived from the verb jahada/yajhadu which means to
strive or put oneself out.
Means the exertion of effort to arrive at a considered
judgment about the rule of the Shariah on a particular
matter
Yunqadu
The passive voice of the verb naqada/yanqidu which has
range of meaning:
To demolish, tear down
To violate
To repeal, revoke
Translation of Arabic
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ISF 2102
Definition
Qawaid al-Fiqhiyyah
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ISF 2102
Qawaid al-Fiqhiyyah
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ISF 2102
Application in Fiqh
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ISF 2102
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ISF 2102
ACTS OF THOSE WITH AUTHORITY OVER PEOPLE
MUST TAKE INTO ACCOUNT THE INTEREST OF
PEOPLE
Definition
Qawaid al-Fiqhiyyah
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ISF 2102
Definition
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ISF 2102
The concept was articulated by Sayydina Umar bin al-Khatab when he was
the ruler of the Islamic state:
I consider myself, with regard to the wealth of Allah (public funds),
-as having the same status as the guardian of an orphan;
-if I have a personal need, I take from it;
-then, when my financial situation eases, I return it;
-and if I am not in need, I refrain [altogether].
This is probably the inspirations for Imam al-Shafii statement:
The status of a leader vis--vis his citizens is like the status of a guardian
vis--vis an orphan
Imam al-Subki expressed the principle in broader terms:
Anyone who acts on behalf of another should act based on the[rules of]
maslahah(benefit)
Definition
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ISF 2102
WORDS
MEANING
Raiyyah
Tasarruf
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ISF 2102
The general meaning of this maxim is that those who have authority over others,
either public or private, their actions and decisions should create benefit for those
in their care and secure their best interests.
Types of authority:
1) Public (ammah) involves legislations &decisions to manage the affairs of
the community as a whole
2) Private (khassah) authority which allows the holder to dispose of an asset &
or manage the affairs of another person.
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ISF 2102
Islam
Puberty
Sanity
Independence
Knowledge of the relevant Shariah rules
The ability to achieve the objectives of the authority one is supposed to
exercise
2) The actions and decisions of the authority should bring benefit to those
who are under that authority
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ISF 2102
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ISF 2102
.
if any slave [of Allah] whom Allah makes responsible for the
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ISF 2102
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ISF 2102
IT IS IMPERMISSIBLE TO DISPOSE OF ANOTHERS
PROPERTY WITHOUT AUTHORIZATION
Qawaid al-Fiqhiyyah
ISF 2102
3
It is impermissible to dispose of
1
anothers property without authorization
5
1 This maxim highlight the Shariahs strong endorsement
of the concept of private property, but it also lays down
that it is not unlimited right as it may be overridden by
2
the requirements of the Shariah.
0
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ISF 2102
(Tasarruf)
Means: Free disposal
More generally : action, behaviour or conduct.
Technically: the willing acts of a person that provide
the basis legal rulings.
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ISF 2102
(Milk)
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ISF 2102
(Idhn)
Permission or authorization
The fact that idhn is mentioned in the maxim
without the possession pronoun (His) expand the
meaning of authorization to include not only
permission of the owner but also the authorization of
the Lawgiver.
General meaning of the maxim is: no one has the
right to use the property of another without the
permission of the owner or the permission of the
Lawgiver
Qawaid al-Fiqhiyyah
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ISF 2102
Qawaid al-Fiqhiyyah
ISF 2102
Qawaid al-Fiqhiyyah
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ISF 2102
AUTHORITY OF THE MAXIM
The authorit
Qawaid al-Fiqhiyyah
ISF 2102
1
3 Listen! Do not wrong one another! Listen! Do not wrong one
another! Listen! Do not wrong another one another! No ones
1 property is lawful [to another] except with his freely given
consent
5
1
Listen! If anyone oppresses a non-Muslim living peacefully
2 among Muslims, or deprives him, or requires of him something
beyond his capacity, or takes anything from him without his
0 freely given consent, I will argue against him on the Day of
Sunan Abu Dawud, 3:136, hadith no. 3054; graded sahih by al- Albani
in Sahih Sunan Abu Dawud
judgment.
The authorit
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ISF 2102
APPLICATION OF THE MAXIM IN FIQH
Application
Qawaid al-Fiqhiyyah
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ISF 2102
Application
IF PERMISSIBILITY AND PROHIBITION COINCIDE,
PROHIBITION PREVAILS
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ISF 2102
DEFINITION
Important guideline for resolving situations of uncertain validity
where an act is valid or not because of the conflict between
permissibility and prohibition.
Halal
Definition
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ISF 2102
Doubtful/Ambiguous
when it is difficult to determine if a given act is lawful or unlawful
Causes Of Ambiguity
1) Inseparable : impurity like urine that fall into clean water and
its characteristics
: impurity like urine that fall into clean water a
changes its characteristics (remain pure if su
2) Separable
: mixing of animals
: the meat that have been properly slaughte
with
Definition
Qawaid al-Fiqhiyyah
ISF 2102
2
What is lawful is clear, and what is unlawful is clear, and
the two there are doubtful matters (shubuhat) which
1 between
many people do not know [the rule for]. Whoever avoids
doubtful matters maintains clarity and assurance in practising
8 the religion and protecting his honor; but whoever falls into
doubtful matters falls into the unlawful; like the shepherd who
his flock around a preserve, letting it graze almost,
2 pastures
but not quite, inside the boundary. Truly, every king has a
Abu Hurayrah (RA) quoted Allahs Messenger (SAW) as
saying :
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ISF 2102
Leave that which causes you doubt for that which causes
you no doubt
Qawaid al-Fiqhiyyah
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ISF 2102
Application in fiqh
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ISF 2102
m harum akhdhuhu, harum ithu
WHAT IS PROHIBITED TO TAKE IS ALSO
PROHIBITED TO GIVE
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ISF 2102
Hram
Definition- Arabic tr
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ISF 2102
Explanation
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ISF 2102
The Exceptions
Exceptions
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2
1. Al-Quran
Allah S.W.T says in Surah Al-Midah verse 2 :
ISF 2102
Help one another to do what is right and good;
do not help one another towards sin a nd hostility
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6
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ISF 2102
2. Hadith
:
:
Anas ibn Malik related that Allahs Messenger (pbuh) cursed 10 people woth
rrgard to wine : the onw who squeezes the juice [from the grapes], the one for
whom it is squeezed, the one who transports it, the one to whom it is
transported, the one who pours it, the seller, the one who consumes its price,
the buyer, and the one for whom it is bought
Qawaid al-Fiqhiyyah
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3
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0
6
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ISF 2102
Application in Fiqh
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6
2
ISF 2102
Qawaid al-Fiqhiyyah
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ISF 2102
Definition of Tabi
The active participle of the verb tabaa / yatbau which
means to follow, to adhere, to comply, to pertain, to be
subordinate, to be under someones authority.
If tabi is refer to a person, it means a follower.
If it refers to a thing, it means subsidiary, subordinate,
secondary, auxiliary.
Definition of Tabi
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ISF 2102
Categories of
tabi
3. Auxiliary to another due
to the necessity
(i.e: key to a lock)
4. The dependency is a
contingent relationship
(i.e: delivery of a
purchased asset)
Categories of Tab
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ISF 2102
Something that is auxiliary to something either in reality
(haqiqi) or in legal (hukmi), will follow its principal in its
ruling.
A thing that is attached to another thing cannot have a
different Shariah ruling from the thing that it is attached
to.
Referring to Article 48 of the Mejelle:
Judgement cannot be given separately for that which is
auxiliary of another.
Definition
Qawaid al-Fiqhiyyah
1
4
1
3
9
2
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ISF 2102
Examples:
1. Selling a lock would include the sale of keys as well.
2. The fetus in a pregnant animal is included in the sale
of the animal.
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ISF 2102
1.
The fertilization took place while the tree belonged to the seller.
If the fertilization took place after the sale of the tree, the buyer will
have the right ownership on the fruit.
Authority of The
Qawaid al-Fiqhiyyah
ISF 2102
1
4 2.
1
3
9 3.
2
8
Qawaid al-Fiqhiyyah
ISF 2102
1. A person who buys real estate has the legal title over all the
fixtures on the land, such as trees, crops, wells, etc. as well as
the easements, unless the contracting parties exclude some of
the items in the contract.
Application in Fiq
Qawaid al-Fiqhiyyah
ISF 2102
Qawaid al-Fiqhiyyah
ISF 2102
1
4
1
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8
Corollaries
Idha batala al-shay batala ma fi dhimnihi
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ISF 2102
Definition
Qawaid al-Fiqhiyyah
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3
2
4
2
1
8
ISF 2102
if
Definition
Qawaid al-Fiqhiyyah
1
3
2
4
2
1
8
ISF 2102
Qawaid al-Fiqhiyyah
1
3
2
4
2
1
8
ISF 2102
Qawaid al-Fiqhiyyah
1
3
2
4
2
1
8
ISF 2102
Becoming a
Muslim
The act of
declaring Islam
Qawaid al-Fiqhiyyah
ISF 2102
1
2- If, after a sale, it turns out that the purchased good
3 did not belong to the seller and the actual owner did
not wants to sell the good, the sale contract is void
2
Buyers ownership of the property and his obligation to pay
4 the price are also null and void
The thing
Ownership of
2
included in a
the good
main thing
1
The main thing
The act of sale
8
When a matter becomes void,
whatever within it is also void
Qawaid al-Fiqhiyyah
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3
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ISF 2102
in a main thing
land
Murabahah
contract
Qawaid al-Fiqhiyyah
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3
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2
1
8
ISF 2102
compliance
transaction
The transaction
WHAT HAS ALREADY BEEN
ENGAGED CANNOT BE ENGAGED
BY ANOTHER
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3
1
3
0
ISF 2102
Mashghul
Engaged
Occupied
Maxims Dealing With Other Forms of Muamalat : What Has Already Been Engaged
Cannot Be Engaged By Another
Definition
Qawaid al-Fiqhiyyah
1
3
2
3
1
3
0
ISF 2102
Qawaid al-Fiqhiyyah
1
3
2
3
1
3
0
ISF 2102
l
Classified into TWO subcategories :
a) The second contract is executed with a
third party rather than the second party.
Means : a person pledges his asset to his creditor
Maxims Dealing With Other Forms of Muamalat : What Has Already Been Engaged
Explanation of the
Cannot Be Engaged By
butAnother
then sells it to a third party
without
Qawaid al-Fiqhiyyah
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2
3
1
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0
ISF 2102
Maxims Dealing With Other Forms of Muamalat : What Has Already Been Engaged
Cannot Be Engaged By Another
Qawaid al-Fiqhiyyah
ISF 2102
Authority of the
Qawaid al-Fiqhiyyah
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ISF 2102
Maxims Dealing With Other Forms of Muamalat : What Has Already Been Engaged
Cannot Be Engaged By Another
Application in
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ISF 2102
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ISF 2102
Meaning
One who makes performance of his promise
conditional on
the fulfillment of a condition by
another party must fulfill
his promise when the
condition has been fulfilled. The
condition that
triggers fulfillment of the promise could be
either
performance of an act or abstention from an act.
Mawaid/Mawid
Taliq
To promise
Pledge
Engagement
Appointment
To hang
Suspend
Attach
To make one thing
conditional, dependent or
contingent upon another.
Lazimah
Inherent
Intrinsic
Imperative
Indispensable
Binding
Fiqh Terminology
When applied to contracts, it means legally binding
Definition
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ISF 2102
MAJORITY OF SCHOLARS
The basic ruling on a promise to perform a lawful but non-obligatory act is
that fulfilling it is highly recommended and failing to fulfill it is highly
disliked.
Failure to fulfill a promise falls short of being sin.
If that is the case, then a simple promise is not legally binding.
HANAFI SCHOOL
When a promise is made contingent upon a condition, the promise becomes
legally binding when the condition is fulfilled.
MALIKI SCHOOL
If a promise is linked to a cause, and the promisee commences the action
which the promisor identified as the cause of the promise, the promisor is
legally bound to fulfill the promise.
The maxim does not apply to any promise to do an act that is not
legitimated by Shariah.
According to Al- Zarqa, the scope of the maxim is limited to sales and
guarantees.
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ISF 2102
Al-Quran
O you who believe, why do you say what you do not do? Surah Al-Saff (61):2
Hadith
The signs of a hypocrite are three: When he speaks he lies; when he promises he
breaks his promise; and when he is entrusted he betrays the trust. Sahih al-Bukhari
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APPLICATION OF THE MAXIM IN FIQH
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ISF 2102