Ju'alah - Appendix B (The Shariah Basis of the Standard)

Transcription

1. Shari ’ah Standard No. (15): Ju’alah Appendix (B) The Shari’ah Basis for the Standard Permissibility of Ju’alah Ju’alah contract is permissible according to the majority of the Fuqaha on the basis of the Qur`an, the Sunnah, Ijma’ (consensus of Fuqaha) and Ijtihad (reasoning). • As for the Qur`an, the evidence is in the story of Yusuf (Joseph) and his brother after the announcement of the loss of the King’s great beaker, {“For him who brings it is the (reward of) a camel load; I will stand surety for it”}.(2) • As for the Sunnah, the evidence is in the report from Abu Sa’id Al-Khudri(3) about the stipulation of Ju’l (compensation) if the chief of the tribe was cured through him and the tacit approval of the Prophet (peace be upon him) of this. • There is Ijma’ ((consensus consensus of Fuqaha Fuqaha)) about the contract of Ju’alah in essence with some disagreement about its scope insofar as some Fuqaha restricted it to reward for the return of a runaway slave, as is recorded in the Sunnah. • As for Ijtihad (reasoning), there is a general need for Ju’alah in the case of acts that cannot be performed by a person himself nor can he find someone who will volunteer for him. Further, it is suitable for cases for which the contract of Ijarah is not suitable, like the return of lost property from an unknown location. Shari’ah Status of Ju’alah • The basis for the principle that Ju’alah is not binding for the offeror is that accrual of the compensation is contingent upon a condition, thus, (2) [Yusuf (The Prophet Joseph): 72]. (3) “Sahih Al-Bukhari” [5: 2166]. 435
2. Shari ’ah Standard No. (15): Ju’alah it resembles bequest, which is not binding. The basis for Ju’alah being non-binding for the worker is that the work to be done is uncertain, thus, it resembles Mudarabah, which is not binding. • The basis for regarding Ju’alah as binding when the worker has commenced work is that at this stage Ju’alah is similar to Mudarabah in which the Mudarib has commenced work. Like Mudarabah, Ju’alah is considered binding by the Maliki scholars in such a case. The basis for considering it binding when the two parties undertake not to terminate the contract during the period of the contract is that unilateral revocation leads to the loss of the effort put in by the worker or the likelihood of injury for the offeror. • The basis for the entitlement of the worker to receive reasonable wages, when the contract is revoked after commencement of work, is that the work done by the worker is legally valid and loss is not to be caused to him. He, therefore, has recourse to reasonable compensation as is the case in Ijarah when it is revoked due to a defect. Elements of Ju’alah and Its Conditions • The basis for the rule that it is obligatory in Ju’alah that all its elements (two parties, form, work and compensation) be found is that it is a contract and must have these elements. Further, Ju’alah is a commutative contract that must have a form to indicate the task required as well as the amount of compensation. • The basis for permitting the worker to seek assistance from others, when there is no stipulation for his personal services, is that Ju’alah is similar to agency in which seeking help from others is valid. • The basis for not stipulating the identification of the worker and directing the offer towards the general public is that the offeror does not know of a person who is able to achieve what is required. • The basis for not stipulating acceptance on the part of the worker, when he is unknown, is that it is not possible to obtain his acceptance. • The basis for allowing the work to be uncertain is the general need along with the impossibility of determining the extent of work. • The basis for stipulating that compensation be known is that compensation is like wages and that there is no need to validate Ju’alah when 436
3. Shari ’ah Standard No. (15): Ju’alah the compensation is unknown as against the uncertainty about the work and the worker. • The basis for recourse to reasonable compensation upon the vitiation of the named compensation is analogy constructed upon Ijarah with recourse to reasonable wages upon the vitiation of the named wages. • The basis for the permissibility of compensation being a portion of the subject-matter of Ju’alah, even though it is uncertain and does not exist, is that it is a type of uncertainty that does not prevent delivery and involves no Gharar (uncertainty) since entitlement to compensation is not established until the task is accomplished. • The basis for the rule that entitlement to compensation is not established until the work is completed and delivered, is that work in Ju’alah is not determined or certain, therefore, stipulating payment as compensation would amount to compensating something that has not compensation because the work has not been completed. Applications of Ju’alah • The basis for permitting an institution to undertake Ju’alah, as a worker or as an offeror, is the permissibility of Ju’alah for which natural persons and juristic persons have the same legal capacity. • The basis for the permissibility of Ju’alah for debt collection, and other similar acts stated in the standard, is that these are acts whose precise determination is difficult and Ijarah is not suitable for them, while Ju’alah is legally valid despite the uncertainty with respect to work. 437