Hiring of Persons - Appendix B (The Shariah Basis for the Standard)

Transcription

1. Shari ’ah Standard No. (34): Hiring of Persons Appendix (B) The Shari’ah Basis for the Standard ■ Hiring of persons is permissible according to Qur`an, Sunnah (Prophetic Traditions) and Ijma’ (consensus (consensus of Fuqaha Fuqaha). ). In Qur`an this is emphasized in the Verse stating: {“Then if they give suck to the children for you, give them their due payment”} payment”}.(2) As far as Sunnah is concerned, permissibility of hiring of persons can be derived, for instance, from the Hadith of the Prophet (peace be upon him) in which he said: “The most eligible of whatsoever you have got a pay for, is the Book of Allah”. Allah” (3) This in addition to many other Hadiths. In this regard, Al-Bukhari presented a whole chapter on Ijarah (hiring) which comprises 22 sections, and so did Abu Dawud, as well as other Sunnah scholars who referred to several Hadiths on the subject within other chapters. Similarly, Ijma’ (consensus (consensus of Fuqaha Fuqaha)) on permissibility of hiring of persons is said to have been reached since the time of the Sahabah (companions of the Prophet, peace be upon him), as well as the time of their successors and the founding leaders of the schools of Fiqh. In this respect Al-Kasani said: “As regards Ijma’ of the Ummah (Muslim Nation) it had been reached before the existence of the deaf…….”.(4) ■ Permissibility of a pledge which is binding to only one party is supported by a number of Shari’ah proofs which support honoring of contracts, pledges and promises, in addition to what has been emphasized by some Shari’ah scholars. On this regard, the International Islamic Fiqh Academy issued its (2) [Al-Talaq (Divorce): 6]; and see: “Jami’ Al-Bayan”, Al-Bayan”, by Al-Tabari, verified by Mahmoud Shakir, Dar Ibn Hazm, [28: 181]. (3) “Sahih Al-Bukhari” with “Fath Al-Bari” [4: 452–453]. (4) “Bada`i’ Al-Sana`i’” Al-Sana`i’”,, Muassasat Al-Tarikh Al-Arabi, Beirut, 1421 A.H. [4: 16]. 857
2. Shari ’ah Standard No. (34): Hiring of Persons resolution No. 40-41 (2/5 & 3/5) on Enforceability of Pledge in Murabahah.(5) The rulings stated in that resolution also hold true in the case of pledge in hiring and other similar dispositions. ■ Permissibility for the institution to receive an amount from the party who pledges to hire its services (seriousness margin), is based on need and interest. A similar Fatwa (Shari’ah opinion) has been issued in this regard by the Unified Shari’ah Supervisory Board of Al Baraka Group.(6) That Fatwa is relevant to the case of hiring. ■ Enforceability of the hiring contract is derived from the verses and Hadiths which instruct people to honor contracts, as when Allah, the Almighty, says: {“O you who believe! Fulfill (your) obligations...”}}.(7) besides the general consensus among fiqh scholars on enforceability of hiring,(8) since it is a contract which facilitates ownership through exchange of two objects. ■ The ruling that the period of hiring should be specified stems from the fact that non-specification could result in prohibited Gharar (uncertainty) and Jahalah (ignorance) which lead to dispute. Prohibition of sales which involve Gharar (uncertainty) has been emphasized by well verified Hadiths.(9) Therefore hiring of persons shall not involve Gharar, because, in essence, it is a sale of service/work. ■ Permissibility of hiring of persons for doing deferred services is based on the practice of the Prophet (peace be upon him) when he and Abu Bakr hired a man from Bani Al-Dail to serve them as a guide, after three days.(10) Moreover, hiring is a time-based contract and therefore its object can be delivered in the future. ■ Permissibility of taking ’Arboun (Earnest (Earnest Money) Money) is derived from what Omar did in the presence of Sahabah (companions of the Prophet, peace (5) The Journal of the Academy, Issue No. (5), Vol. (2), (pp. 754 and 965). (6) Fatwa No. (9/10) of the Unified Shari’ah Board of Al Baraka. (7) [Al-Ma’idah (The Table): 1]. (8) “Al-Fatawa Al-Hindiyyah” [4: 410]; “Al-Sharh Al-Kabir” [2: 4]; “Al-Rawdah” [5: 173]; and “Al-Mughni” with “Al-Sharh Al-Kabir” [6: 20]. (9) “Sahih Muslim” [5: 3]; and “Sunan Abu Dawud” (H: 3376). (10) “Sahih Al-Bukhari” with “Al-Fath” [4: 443], Al-Matba’ah Al-Salafiyyah. 858
3. Shari ’ah Standard No. (34): Hiring of Persons ■ ■ ■ ■ ■ ■ be upon him), and adopted by Ahmad. On this regard, The Islamic Fiqh Academy of Makkah Al-Mukarramah has also issued its resolution No. 72 (3/8). Sub-hiring is permissible because when the employer owns the service/ work he becomes able to transfer it to someone else. The ruling that a hiring contract can be conditional is based on the Hadith of the Prophet (peace be upon him) which indicates: “Muslims are at their conditions, except a condition that permits what has been prohibited or prohibit what has been permitted.”(11) The ruling that hiring for a specific service is impermissible before owning and possessing the service, is reached by analogy to prohibition of selling things that one does not own, and the Hadith which has been narrated by Hakim Ibn Hizam stating: “Don’t sell what you do not have”.(12) Permissibility of signing a hiring contract for a service to be delivered in the future, is judged by analogy to Salam, and because that does not lead to dispute. According to the Shafi’i and Hanbali scholars the pay should not necessarily be made in advance. A private employee should not guarantee what he works on, except in case of transgression, negligence, or breach of a condition. This is actually the general principle in trust-based contracts; in addition to that, the contract comprises an interest for the employee since he will receive the pay. In case of transgression, negligence, or breach of condition the act results in harm, and hence the employee has to indemnify the employer, as per the directives of the Prophet (peace be upon him) who said: “No harm, and no reciprocal harm”. harm” (13) The ruling that a shared employee has to guarantee what he works on, is based on what has been reported about some of the Sahabah (companions of the Prophet – peace be upon him) who emphasized that this has to be so, (11) Related by Al-Bukhari: “Fath Al-Bari”, Al-Bari”, “Kitab Al-Ijarah” [4: 451]; and “Abu Dawud” with “’Awn Al-Ma’bud” [9: 516]. (12) Related by Abu Dawud in his “Sunan” (H: 3530); Al-Nasa`i in his “Sunan” [2: 225]; Ibn Majah in his “Sunan” (H: 2187), and Ahmad in his “Musnad” [3: 42]. (13) Related by Malik in “Al-Muwatta’” “Al-Muwatta’”,, “Kitab Al-Aqdiyah” [1: 464]; Ahmad in his “Musnad” [1: 313] and [5: 327]; and Ibn Majah in his “Sunan” [2: 784]. 859
4. Shari ’ah Standard No. (34): Hiring of Persons because the shared employee will be doing what he has been paid to do in the absence of the owner, besides the fact that the employee in this case is working for many employers rather than for a particular employer.(14) ■ The hired service shall be permissible because what is prohibited by Shari’ah cannot be an object of a Shari’ah-recognizable contract. Moreover, impermissible hiring entails provision of support to wrongdoing and misbehavior; whereas Allah, the Most High, says: {“Help you one another in Al-Birr and Al-Taqwa (virtue, righteousness and piety, but do not help one another in sin and transgression”} transgression”}.(15) ■ The pay for future hiring periods can be adjusted on mutual consent of the two parties, because such adjustment constitutes contract renewal for a coming period. No pay has yet become payable to the employee for that future period so that it can become a debt owed the employer, and consequently lead to prohibited rescheduling of debt. When, instead, such adjustment is done for an unsettled amount of pay which belongs to past periods, so as to extend the repayment period against an increase in the amount to be paid, adjustment in this case will lead to Riba (usury). The 11th Seminar of Al Baraka has already issued a Fatwa in this connection.(16) ■ The ruling that the pay can be composed of two parts is based on Tradi (mutual consent), in addition to the fact that such arrangement neither violates the contract rulings nor does it encounter a Shari’ah prohibition. ■ The pay can be in the form of a common share, because the pay in this form can be known, and will not lead to dispute or Gharar (uncertainty). ■ Permissibility of stipulating in the contract that all outstanding installments of the pay shall become due in case of default by the employer in the settlement of any installment is based on Tradi (mutual consent), besides the fact that such a condition neither violates the contract nor does it encounter Shari’ah prohibition. The Prophet (peace be upon him) said: “Muslims are (14) “Bada`i’ Al-Sana`i’” [4: 210]; “Hashiyat Al-Dusuqi” [4: 23]; “Mughni Al-Muhtaj” [2: 351]; and “Al-Mughni” with “Al-Sharh “Al-Sharh Al-Kabir” [6: 115]. (15) [Al-Ma’dah (The Table): 2]. (16) The Book on Resolutions and Recommendations of Al Baraka Seminar (11/2). 860
5. Shari ’ah Standard No. (34): Hiring of Persons ■ ■ ■ ■ ■ bound by the conditions the make”. make” (17) In this regard the International Islamic Fiqh Academy has also issued its resolution No. 64 (2/7).(18) Impermissibility of stipulating a condition for increasing pay overdues is based on the fact that any increment in such amounts (against extension of settlement period) is Riba (usury). In this connection, The International Islamic Fiqh Academy issued its resolution No. 133 (7/14).(19) Permissibility of applying two rates of pay (so that the employer would become entitled to the higher rate when he performs the work in the shorter period and vice versa) stems from the fact that such arrangement does not lead to Gharar (uncertainty) or Jahalah (ignorance). In addition to that, such arrangement had been Traditionally resorted to, and approved by a number of Fiqh scholars.(20) Permissibility of seeking payment guarantees, is similar to permissibility of Kafalah (suretyship) and Tawthiqat (documentations) in Islamic jurisprudence, besides the fact that request for guarantees here does not violate the rulings of the contract but rather confirms them, since guarantees are suitable for debt contracts. The contract becomes null and void when the service is completely or partially useless, because the outcome of the contract has not been accomplished, and the contract has not achieved its objectives. In addition to all that, the pay is supposed to be made against the benefit. In this respect, the International Islamic Fiqh Academy issued its Resolution No. 13 (1/3).(21) If, instead, the contract relates to a specifically defined service which has to be delivered in the future, the contract does not become null and void because the service in question will still remain as a debt, and the employee should be asked to provide a service that has the same specifications. The ruling that hiring will come to an end on expiry of the contract period or on the consent of the two parties, is based on the fact that a hiring contract (17) (18) (19) (20) (21) Reference has been referred to earlier. The Journal of the Academy, No. (6), (P. 193) and No. (7), Vol. (2), (P. 9). The Journal of the Academy, No. (14), Vol.(4), (P. 687). See: “Al-Fatawa Al-Hindiyyah” [4: 445] and “Al-Mughni “Al-Mughni”” by Ibn Qudamah [5: 442]. See: the Journal of the Academy, No. (2), Vol. (2), (P. 527) and No. (3), Vol. (1), (P. 77). 861
6. Shari ’ah Standard No. (34): Hiring of Persons is a time-based contract and therefore, it expires at the end of the period. Similarly, a hiring contract is a consensual contract which starts and ends on the consent of the two parties. ■ Permissibility of spontaneous renewal of the contract when it is stipulated as a condition or when agreed upon between the two parties, stems from the fact that such condition does not violate the rulings of the contract. The Prophet (peace be upon him) said: “Muslims are bound by the conditions the make”. make” (22) ■ The basis for the commitments of the employee and the employer is that such commitments constitute essential requisites of the contract for hiring of persons. Moreover, such commitments are based on the agreement of the two parties. Both of these two justifications are unanimously accepted by Shari’ah scholars.(23) ■ The ruling that a hiring contract which relates to the employee in person becomes null and void on the death, loss of legal competency or persistent sickness of the employee, is based on the fact that the object of contracting will, thus, become no longer existent. Consequently, there will also be no pay since the pay is to be made in exchange of the benefit. In addition to all that, this ruling conforms to normal practice. ■ The ruling that a contract which relates to a future service does not become null and void on the death of the employee, is based on the fact that in this case the service, as a debt, is considered as existent. ■ The pay shall become due even if the employer could not benefit from the employee who had put himself at his disposal. This ruling is based on the fact that the employee is entitled to the pay since he has been able to fulfill the condition of putting himself at the disposal of the employer, while the employer has no excuse for not benefiting from the services. ■ Permissibility of terminating the hiring contract in case of contingencies is based on observation of need and necessity of avoiding hardship, in addi(22) Reference has been referred to earlier. (23) See: “Bada`i’ Al-Sana`i’” [4 :210]; “Tabyin Al-Haqa`iq” [5: 124]; Al-Dusuqi in “AlSharh Al-Kabir” [4: 23]; “Mughni Al-Muhtaj” [2: 351; and “Al-Mughni” with “Al-Sharh Al-Kabir” [6:115]. 862
7. Shari ’ah Standard No. (34): Hiring of Persons tion to normal practice. A Fatwa in this regard has been issued by the Board of Fatwa and Shari’ah Supervision of the Kuwait Finance House.(24) ■ Permissibility for the employee to state a condition for termination of the contract when the pay is delayed is based on the fact that such condition is fair, and does not violate the rulings of the contract. The Prophet (peace be upon him) said: “Muslims are at their conditions”. conditions” (25) (24) Fatwa No. (232) and No. (252). (25) Reference has been referred to earlier. 863