Possession (Qabd) - Appendix B (The Shariah Basis for the Standard)

Transcription

1. Shari ’ah Standard No. (18): Possession (Qabd) Appendix (B) The Shari’ah Basis for the Standard Realisation of Possession in the Shari’ah ■ The basis for the realisation of actual possession with respect to gold, silver and currencies through actual physical possession is the sound tradition reported from Ubadah Ibn Al-Samit (may Allah be pleased with him), that the Messenger of Allah (peace be upon him), said, “Gold for gold, silver for silver. . . ,” till he said, “like for like, equal for equal, from hand to hand. If these species differ, then sell as you like as long as it is from hand to hand” hand”.(2) ■ The basis for acknowledging custom (’Urf) ( Urf) as the basis for the realisation of possession is the consensus (Ijma’) of the Ju Jurists rists (Fuqaha).It is in this regard that Al-Khatib Al-Shirbini says: “The reason reason is that the Lawgiver has used the term possession in an unqualified sense and has deemed it the basis of rules. He did not elaborate it, and there is no definition for it in the language. It is for this reason that recourse is to be had to custom (’Urf)”.(3) Ibn Taymiyyah said, “As long as there is no definition for it in the language or in the Shari’ah, recourse must be had to the custom of the people, like possession mentioned in the words of the Prophet (peace be upon him): ‘‘He He who buys food is not to sell it (4) until he takes possession of it’.” Al-Khattabi says: “Forms of possession differ for things in accordance with a difference in their own forms and in accordance with the varying practices of the people with respect to them.”(5) ■ The basis for the realisation of possession in immoveable property through relinquishment is customary practice. The opinion of the (2) Related by Muslim in his “Sahih” “Sahih”. (3) “Mughni Al-Muhtaj” [2: 72]. (4) “Majmu’ Al-Fatawa” by Ibn Taymiyyah [3: 272]. (5) “Ma’alim Al-Sunan Li Al-Khattabi”, Al-Khattabi”, [3: 136]. 502
2. Shari ’ah Standard No. (18): Possession (Qabd) majority of the jurists among the Hanafis, Malikis, Shafi’is, Hanbalis and Zahiris, as well as others besides them, is that possession in immoveable property is delivered through relinquishment and the facilitating of transactions in it.(6) Hanafi jurists have stipulated that if a lock is placed on the immoveable property, then, it is sufficient for the delivery of possession to deliver the key along with relinquishment so as to provide the facility to the possessor to open it without difficulty.(7) ■ The basis for considering registration of immoveable property as constructive possession in the case of mortgage (Rahn) is custom and its practice (in countries that have adopted the system of registration of property) whereby registration of mortgage of immovable property by entry in a page of the register of mortgages is deemed delivery of possession under the law (constructive possession) and it acts as a substitute for actual delivery of possession with respect to its legal effects and results. This applies even if the property has in it the household assets of the tenant or is attached to the rights of the lessor over this property, because in such a case too they are considered possession constructively and in fact.(8) ■ Add to this the fact that official mortgage grants to the creditor (mortgagee) a personal right over the mortgaged property, which gives him, as a result of the death of the owner or his insolvency, a right prior to all the creditors for the satisfaction of his claim from this property.(9) Possession of Ascertained Moveable Property ■ The basis for the realisation of possession in ascertained moveable property, as well as liabilities by description, through relinquishment in favour of one entitled to it and in a manner that enables him to deliver it without any (6) “Al-Fatawa Al-Hindiyyah” [3: 16]; “Radd Al-Muhtar” [4: 561], passim; “Rawdat AlTalibin” [3: 515]; “Al-Majmu’ Sharh Al-Muhadhdhab” [9: 276]; “Mawahib Al-Jalil” [4: 477]; “Kashshaf Al-Qina’” [3: 202]; “Al-Mughni” [4: 333]; “Al-Muhalla” [8: 89]; see article (263) in “Majallat Al-Ahkam Al-’Adliyyah” dliyyah”;; article (435) in “Murshid Al-Hayran” Al-Hayran”;; and article (335) in “Majallat Al-Ahkam Al-Shar’iyyah ’Ala Madhhab Al-Imam Ahmad” Ahmad”. (7) “Radd Al-Muhtar” [4: 561]; “Al-Fatawa Al-Hindiyyah” [3: 16]; see articles (270) and (271) in “Majallat Al-Ahkam Al-’Adliyya” Al-’Adliyya”;; and articles (435) and (436) in “Murshid AlHayran”. Hayran” (8) “Al-Madkhal Al-Fiqhi Al-’Amm Lil-Zarqa” [1: 278] and [2: 648] marginal note. (9) “Al-Mudhakkirah Al-Idahiyyah Li Al-Qanun Al-Madani Al-Kuwayti” Al-Kuwayti”,, (P. 339) as quoted by Muhammad Wahid Al-Din Suwar in his book on Islamic Fiqh, (P. 94). 503
3. Shari ’ah Standard No. (18): Possession (Qabd) restriction, whether or not the moveable property needs to be delivered through one of the customary units of measure, is that delivery of a thing literally means delivering it completely without any impediments, so that no one shares it with the possessor, and this is possible by relinquishment. Further, the person who is under an obligation to deliver must have a way through which he can be discharged of his obligation, and what is in his ability is to relinquish it and remove all obstacles. As for actual physical possession (by hand), it is not within his ability to provide that for it is a voluntary act of taking possession. If the obligation to make such a delivery is imposed on him, it would become difficult for him to meet such an obligation.(10)This rule, as well as its basis, has been supported by a resolution of the Islamic Fiqh Academy (OIC).(11) ■ The basis for considering the registration of pledges (hypothecation) of mobile moveable property like cars, steamers, airplanes and trains in the official register for the beneficiary (in countries where a system of registration has been adopted for such moveable property) is deemed constructive possession for what it represents. It is the governing custom that considers official registration as the delivery of constructive possession to the beneficiary and acts as a substitute for actual possession with respect to its legal effects and consequences. ■ The basis for stipulating the ascertainment (setting aside) of moveable property through customary units of measure for the realisation of possession are the words of the Prophet (peace be upon him): “He who buys food (wheat) is not to sell it until he has measured it.”(12) insofar as they indicate that possession in this case is not attained except by the use of the cubic measure. Thus, ascertainment in what is estimated by cubic measure is through cubic measure and the remaining types are assigned (10) “Bada`i’ Al-Sana`i’” [5: 244]; “Al-Fatawa Al-Hindiyyah” [3: 16]; “Radd Al-Muhtar” [4: 561]; “Sharh Al-Majallah Li Al-Atasi” [2: 200 and after]; “Al-Mughni” [4: 111]; “Al-Ifsah Li-Ibn Hubayrah” (P. 224); articles (272) to (275) of “Majallat Al-Ahkam Al’Adliyyah”;; and articles (437) and (438) in “Murshid Al-Hayran” ’Adliyyah” Al-Hayran”. (11) Resolution No. 53 (4/6) in its 6th Session (Sha’ban 1410 A.H./March 1990 A.D.). (12) Related by Muslim in his “Sahih” “Sahih”,, [10: 169]; Abu Dawud in his “Sunan” [2: 252]; and Al-Nasa`i in his “Sunan” [7: 285]. 504
4. Shari ’ah Standard No. (18): Possession (Qabd) a similar rule on the basis of analogy.(13) This is the view of the majority of the Jurists from among the Malikis, Shafi`is and Hanbalis upholding that possession in things that are estimated by cubic measure, weight, linear measure and counting is attained by taking delivery through these measures accompanied by relinquishment. ■ The basis for considering the delivery of documents pertaining to commodities, appliances and goods (like bills of lading and warehouse receipts) as constituting constructive possession of what they represent is the customary practice in this respect seeking support from the view of the Malikis that the mode of possession in moveable property that is not subjected to estimation is recourse to custom (’Urf).(14) Further, the basis for stipulating cubic measure for the soundness of possession in food that is estimated by cubic measure in the tradition from the Prophet (peace be upon him) is the custom that was prevalent during the period of the Prophet (peace be upon him) to the effect that possession in things subjected to cubic measure is through cubic measure and for the rest analogy is to be employed. As the determination of the issue of possession in contracts is based on custom, therefore, everything that is taken by custom to be possession in a certain period is to be deemed as possession from the perspective of the Shari’ah. If the custom of the people changes in this respect, the consideration of that mode as possession ceases. The reason is that where the constructive basis of rules is custom, the rules will alter with a change in custom,(15) except for those things that have been specified by the Shari’ah. As far as the custom prevalent in our times is based upon the consideration of the delivery of documents for moveable commodities and goods -even where these are subjected to estimation- as amounting to possession of these commodities and goods, it will be deemed valid from the perspective of the Shari’ah. The basic principle here is what is stated by Al-Wansharisi, “A thing that is acted upon by the people and is preferred by their custom and practice must (13) “Mughni Al-Muhtaj” [2: 173]; “Kashshaf Al-Qina’” [3: 201]; and Ibn Qudamah, “AlMughni” [4: 111]. (14) “Sharh Al-Khirashi” [5: 158]; Al-Dardir, “Al-Sharh Al-Kabir” Al-Kabir” [3: 145]; and Al-Baji, “Al-Muntaqa” [6: 97]. (15) “Al-Mughni” [6: 188]; “Al-Furuq” [1: 176]; and Al-Qarafi, “Al-Ihkam Fi Tamyiz AlFatawa ’An Al-Ahkam”, Al-Ahkam”, (P. 231). 505
5. Shari ’ah Standard No. (18): Possession (Qabd) be accommodated through the Shari’ah even against disagreement and opposition, as far as possible”.(16) ■ The basis for considering prior possession of a certain thing as a substitute for subsequent possession on grounds that are acknowledged by the Shari’ah, when it represents it, is that the purpose behind the realisation of possession is to establish control over, and the ability to undertake transactions in, the thing possessed. If this state is found possession is found too. This is based on what is upheld by the Malikis and Hanbalis to the effect that if a person sells a thing, or gives it away as gift or pledges it, while the thing is in the possession of a usurper, borrower, bailee, hirer, agent or another, then prior possession represents absolutely subsequent entitled possession through the contract, irrespective of the nature of possession exercised by the possessor being that of liability or trust and irrespective of the entitled possession being in the nature of trust or liability. As for what arises from this with respect to the possessor being liable for the thing possessed or holding it as a trustee, it has no connection with or effect upon the reality of possession.(17) Expenses of Possession ■ The basis for the view that the expenses of possession of the sold commodity are borne by the seller is that the delivery of the sold commodity is obligatory on the seller by virtue of the contract, and the contract is not completed without it; and a thing without which an obligation cannot be fulfilled is also obligatory. Accordingly, this is what was upheld by the majority of the Jurists to the effect that meeting the expenses of the delivery of the sold commodity -by presenting it if it is absent and by ascertaining it if it needs to be ascertained by a customary unit of measure- is the responsibility of the seller. The basis for the view that expenses, if any, of taking delivery of the price are the responsibility of the buyer, is that payment of the price to the seller is obligatory upon the buyer, thus, it is binding on him to bear the burden of all that is required by such delivery. The basis for qualifying this rule to impose the expenses on both parties insofar as there (16) Al-Wansharisi, “Al-Mi’yar” [6: 471]. (17) “Mayyarah ’Ala Al-Tuhfah” [1: 111]; “Bidayat Al-Mujtahid” [2: 229]; Majd Ibn Taymiyyah, “Al-Muharrar” “Al-Muharrar”,, [1: 374]; Ibn Taymiyyah, “Nazariyyat Al-’Aqd” Al-’Aqd”,, (P. 236); “Kashshaf Al-Qina’” [3: 249 and 373], [4: 253]; and Al-Qarafi, “Sharh Tanqih AlFusul” (P. 456). 506
6. Shari ’ah Standard No. (18): Possession (Qabd) is no condition to the contrary, is extended from the ruling of the majority of the Jurists of upholding conditions. As for the qualification that “there is no custom to the contrary,” it is based on the view of the Jurists, insofar as it is stated in their texts that if there is a stipulation or custom to the contrary, then, it is binding to follow such stipulation or custom.(18) ■ The basis for the buyer bearing the expenses of constructive possession of what he has purchased, as represented by official registration and attestation for the sale of immoveable property or its mortgage in countries that have adopted a system of registration of transfer of immoveable property, as well as the sale of some mobile moveable property like cars, vehicles, steamers and airplanes or their pledging (hypothecation) in countries that have adopted a system of officially registering such things, and as well as the purchase of shares of corporations -whose trading is permissible according to the Shari’ah in markets for financial paper- is the customary practice in all these things. Further, such a practice secures the interest of the buyer and is supported by the rule that gain is linked to the bearing of expenses. It is also supported by derivation of the rule from what has been stated by the Hanafi Jurists to the effect that the expenses of the drafting of documents, promissory notes and of witnessing, which confirm the transaction of sale, are to be borne by the buyer as long as there is no custom or stipulation to the contrary. ■ The basis for the seller bearing the expenses for the delivery of the sold commodity to the buyer with the stipulation of a known place (other than the place of contract where it is present) is what has been stated by the Hanafis and the Hanabalis affirming that such expenses are borne by the seller in case of a stipulation to this effect.(19) (18) “Al-Zurqani ’Ala Khalil” [5: 158}; “Hashiyat Al-Dusuqi” [3: 144]; “Al-Bahjah ’Ala AlTuhfah” [2: 144]; Al-Dardir, “Al-Sharh Al-Saghir” [3: 197]; “Al-Mughni” [6: 188]; “Sharh Muntaha Al-Iradat” [2: 192]; “Mughni Al-Muhtaj” [2: 73]; “Bada`i’ Al-Sana`i’” [5: 243]; Al-Atasi, “Sharh Al-Majallah” [2: 221]; articles (45-242) in “Majallat AlAhkam ’Ala Madhhab Al-Imam Ahmad”; Ahmad”; articles (288-91) in “Majallat Al-Ahkam Al’Adliyyah”;; and articles (67-466) in “Murshid Al-Hayran” ’Adliyyah” Al-Hayran”. (19) “Durar Al-Hukkam” [3: 230]; “Kashshaf Al-Qina’” [3: 180]; “Sharh Muntaha Al-Iradat” [2: 161]; articles (353), (446) in “Murshid Al-Hayran” Al-Hayran”;; article (287) in “Majallat AlAhkam Aal-’Adliyyah”; Aal-’Adliyyah”; and article (342) in “Majallat Al-Ahkam Al-Shar’iyyah ’Ala Madhhab Al-Imam Ahmad”. Ahmad” 507
7. Shari ’ah Standard No. (18): Possession (Qabd) Expenses of Possession in Qard (Loan) ■ The basis for the borrower bearing the expenses of delivery and acquisition, which refer to taking of delivery through customary units of measure in a contract of Qard, is that the lender has undertaken a good act, and costs are not to be imposed on one who does a good act.(20) Linked to these with respect to the rule are the expenses of the drawing up of documents, promissory notes and so on, which are matters that are needed for the implementation, execution or verification of the contract of Qard (loan), it is the borrower who bears these costs insofar as these are the requirements or appendages of raising a loan, which is for his interest. The lender is undertaking an act of donation of the benefits of his wealth and the person doing good is not to be made to bear costs over and above his granting of a thing, because “No ground (of complaint) can there be against those who do good.”(21) If it is made binding on him to bear the costs of lending and recovery as well as attestation, it would run counter to his good act, and it would lead to the preventing to those who own wealth from lending it. Expenses of Possession in Deposit (Bailment) ■ The basis for the depositor bearing the costs of deposit and recovery in a contract of Ida’ (deposit) is that “The burden of possession on each thing is binding upon the one who benefits from its possession, due to the principle: Gains are based on the bearing of costs.”(22)22 It is known that the benefit in deposit and its return belong to the depositor alone, thus, the expenses that are incurred on its deposit and recovery are binding upon him.(23) Key Modern Applications of Possession ■ The basis for considering the possession of a bank draft or a personal cheque, accepted for payment by the drawee, as constructive possession of (20) “Al-Zarqani ’Ala Khalil” [5: 158]; Al-Dardir, “Al-Sharh Al-Saghir” [3: 197]; and “Hashiyat Al-Dusuqi” [3: 144]. (21) [Al-Tawbah (Repentance): 91]. (22) “Durar Al-Hukam” [2: 333]. (23) “Al-Bahr Al-Ra`iq” [7: 276]; “Durar Al-Hukkam” [2: 272]; “Al-Mughni” [9: 269]; “Kashshaf Al-Qina’” [4: 203]; “Asna Al-Matalib” [3: 84]; “Tuhfat Al-Muhtaj” [7: 124]; “Al-Muhalla” [8: 278]; articles (793) in “Majallat Al-Ahkam Al-’Adliyyah” Al-’Adliyyah”;; and articles (1340) in “Majallat Al-Ahkam Al-Shar’iyyah ‘Ala Madhhab Al-Imam Ahmad” Ahmad”. 508
8. Shari ’ah Standard No. (18): Possession (Qabd) the amount accepted is customary banking practice and trading transactions in this respect. The confirmation of this is laid down in a resolution of the International Islamic Fiqh Academy.(24) ■ The basis for considering a payment on a credit card as constructive possession of the amount of repayment is banking practice in this respect. Likewise, in the consideration of a deposit by a person of an amount in a bank account of the client, irrespective of this being cash, a bank endorsement, or a cheque accepted for payment by the drawee bank, as constructive pos possession session by the beneficiary. This has been confirmed by a resolution of the International Islamic Fiqh Academy.(25) (24) Resolution No. (53) 4/6 in its 6th Session (Sha’ban 1410 A.H./March 1990 A.D.). (25) 25 Resolution No. (53) 4/6) in its 6th Session. 509