Possession (Qabd) - Appendix C (Definitions)

Transcription

1. Shari ’ah Standard No. (18): Possession (Qabd) Appendix (C) Definitions Al-’Aqar (Immoveable Property) It is something that has a permanently affixed foundation and it is not possible to transfer it or move it, along with the subsistence of its shape and form, like land and houses. Al-Manqul (Moveable Property) It is something that can be transferred and moved. Thus, it includes cash, loans, animals, cars, ships, airplanes, trains, things subjected to cubic measure or weight. Bay’ Al-Juzaf (Sale by Random Estimate) It is the sale of something whose precise quantity is not known, and its quantity is known through estimation without employing a cubic measure, weight, linear measure, count. Al-Qabd Bi-Sifat Al-Daman (Possession Creating a Liability for Return) It is the acquisition of a thing that leads to the liability for the return of the thing, if it is a fungible commodity, that is, its return to its owner as long as the thing exists, and its value, if it is non-fungible, on its loss or conversion, whatever the cause of this, and this when it occurs without the permission of the owner (as a wrongful act, delict, tort), like the possession by a thief or usurper, or with the permission of the owner, but with the intention of owning it, like the possession of one bargaining for it or one who has expressed the intention to own it. Some Jurists have deemed the possession by the borrower, the mortgagee (pledge), lessor and the independent contractor to be of this nature. Al-Qabd Bi-Sifat Al-Amanah (Possession Creating a Trust) It is the acquisition of a thing that leads to its treatment as a trust in the possession of the possessor insofar as he does not bear the liability of its 510
2. Shari ’ah Standard No. (18): Possession (Qabd) loss, and as long as he has not committed a tort or negligence in its safekeeping. This occurs with the permission of the owner when there is no intention to own it rather it is for the interest of the owner, like the bailee, agent, dedicated servant, Wali and Wasi, or it is for the interest of the person acquiring it, like the tenant, borrower, and mortgagee, or for their common interest, like the Mudarib, partner, tenant and irrigator. ’Urf (Custom) It is what is practised by the people and what they have come to follow in terms of words, acts or relinquishment. The ’Urf that is acknowledged by the Shari’ah is the one that meets the following conditions: 1. That it should not contradict the Shari’ah. If the ’Urf Urf goes against a Shar’iah Text or one of the principles of the Shari’ah, it is a custom that is void. 2. That the ’Urf should be continuous or predominantly so. 3. That the ’Urf be prevalent at the time of the undertaking of the transaction. 4. That the two parties to the contract should not have expressly stipulated against it. If they express such a stipulation the ’Urf is not admissible. 511