Impact of Contingent Incidents on Commitments - Appendix B (The Shariah Basis for the Standard)

Transcription

1. Shari ’ah Standard No. (36): Impact of Contingent Incidents on Commitments Appendix (B) The Shari’ah Basis for the Standard ■ Permissibility of amending the commitment to absorb the impacts of contingent incidents is based on the fact that in such cases Muslims should strive for appropriate disposition without rushing to termination of the commitment. This rule is adopted by the various schools of Fiqh with regard to external incidents which take place without the intervention of any of the two parties. ■ The ruling that the commitment shall become null and void if its fulfillment has become useless is based on the fact that implementation of a useless commitment is an act of futility, while there is no room for futility in Shari’ah legislation as indicated by Al-Shatibi and others. ■ The basis for the ruling that commitment shall become ineffective when the object of the contract turns out to be owned by someone else other than the committed party, is that unlawful seizure is unrecognizable as a basis of ownership. The Prophet (peace be upon him) is reported to have said: “An extorter is indebted with what he takes until he returns it back”.(2) ■ The basis for the rulings relating to Jawa`ih (calamities) is the Hadith(3) (Prophetic tradition) which states: “The Prophet (peace be upon him) has forbidden Bay’ al-Sinin (sale of agricultural produce for many years to come), and permitted value discounts on calamities” calamities”.. Therefore, rulings can be derived from this Hadith for similar cases when the object of the contract is lost due to an inevitable incident. (2) Related by Ahmad in his “Musnad” “Musnad”;; “Ashab Al-Sunan”; Al-Sunan”; and Al-Hakim in his “Mustadrak” “Mustadrak”,, quoting Samrah, and “Al-Fath Al-Kabir” [2: 232]. (3) This Hadith has been related by Muslim, Abu Dawud and Al-Nasa`i: “Majma’ AlZawa`id” [1: 703]. 917