Possession (Qabd) - Scope of the Standard

Transcription

1. Shari ’ah Standard No. (18): Possession (Qabd) Statement of the Standard 1. Scope of the Standard This standard covers possession in contracts and what acts as a constructive substitute for it (constructive possession). It elaborates the mode of its realisation in immovable and movable property as well as in things that are ascertained and those established as a liability by description. The standard also identifies the person responsible for its costs (maintenance and expenses) in various types of contracts along with their modern applications. The standard does not cover acts other than contracts, like possession in usurpation ((Ghasb Ghasb)) and the like. Further, it does not cover the nature of possession with respect to liability for compensation or otherwise, nor to possession in set-offs, as these have their specific standards. 2. Definition of Possession Possession is the gathering of a thing or what takes its rule, according to the requirements of customary practice. 3. Mode of Taking Possession 3/1 The basis for determining the mode of possession in things is custom (’Urf). It is for this reason that possession of things has differed in accordance with the nature of things and differences among people with respect to things. 3/2 Actual possession is realised in immovable property through relinquishment and enabling transactions in it. 3/3 Actual possession takes place in movables through physical corporeal delivery. Constructive possession, in ascertained movables as well as in those established as a liability by description, takes place -after their ascertainment by means of one of the methods known for their 494
2. Shari ’ah Standard No. (18): Possession (Qabd) ascertainment- by relinquishing (releasing) the thing for the person entitled to it enabling him to deliver it without any obstacle even when no transportation or transmission has taken place. This takes place irrespective of the thing being one that is acquired by hand in practice or is one in which delivery (transmission) is stipulated through one of the customary units of measure -cubic measure, weight or linear measure- or it is a commodity to which these measures do not apply due to their inapplicability or with the possibility of their applicability, but the measures are not applied, as in the case of sale by estimate. 3/4 Constructive possession includes the registration of a mortgage of immovables and (hypothecation) of mobile movables like cars, trains, steamers and airplanes through registration that is valid under the law. Registration stands in place of actual possession with respect to its rules and legal effects. 3/5 The possession of documents, like bills of lading and warehouse receipts, issued in the name of the possessor or acknowledging his interest therein is deemed constructive possession of what the documents represent if the ascertainment of commodities, goods and appliances is attained through them along with the ability of the possessor to undertake transactions in them. 3/6 Prior possession of a tangible thing stands in place of subsequent lawful possession due to a cause acknowledged by the Shari’ah irrespective of the possession of the prior possessor being on the basis of the liability to bear loss (Daman) or one of trust (Amanah) and irrespective of the subsequent constructive possession entailing liability for loss or a burden of trust (Amanah). 3/7 Reciprocal possession stipulated in the contract of Sarf (transaction in gold, silver and currencies) is delivery and acceptance of delivery within the session of the contract on a spot basis (Yadan (Yadan Bi Yadin Yadin). ). [see item 2/6 of Shari’ah Standard No. (1) on Trading in Currencies] 495
3. Shari ’ah Standard No. (18): Possession (Qabd) 4. Expenses of Possession 4/1 Expenses of possession in financial commutative contracts 4/1/1 The expenses of delivering the sold commodity -for presenting it if it is absent, for ascertaining it through one of the customary units where that entails a claim for ascertainment like wages of employing a cubic measure, weight, linear measure and countingis the responsibility of the seller. As for the expenses of delivering the price, if any, it is the responsibility of the buyer, unless there is a stipulation or customary practice to the contrary, in which case it is binding to follow such stipulation or practice. 4/1/2 The expenses of conveyancing, witnessing, preparation of instruments that record a sale and the formalities of registration are borne as stipulated by the parties to the contract. If there is no such stipulation on their part, customary practice is relied upon. 4/1/3 Where it is stipulated by the buyer for the seller that the sold commodity be delivered at a particular place, other than the one where it is present at the time of the contract, and that it be delivered at the expense of the seller, the seller is bound to deliver it at the specified place and the expenses of transporting it to such place will be borne by the seller. 4/1/4 The rules for the expenses of possession explained in items 4/1/1, 4/1/2 and 4/1/3 apply to all financial commutative contracts, like Salam, Istisna’a and others. Accordingly, the expenses of delivering the Salam commodity will be borne by the seller, the expenses of delivering the capital (Ras al-Mal) will be borne by the Rab al-Salam (the buyer); the expenses of taking possession of the leased property will be borne by the lessor, the expenses for the delivery of possession of the lease value (wages) shall be borne by the lessee; and the expenses for delivering the subject matter of Istisna’a will be borne by the manufacturer, while the expenses for the delivery of the price shall be borne by the orderer. In all these cases, if there is a customary practice or stipulation to the contrary, then, such practice or stipulation shall be observed. 496
4. Shari ’ah Standard No. (18): Possession (Qabd) 4/2 Expenses for delivery of possession in a loan (Qard) 4/2/1 The expenses for delivery and recovery in a contract for loan, expenses that pertain to its ascertainment through one of the customary units of measure and the like, shall be borne by the borrower. 4/2/2 The expenses for the drawing up of documents, promissory notes, title deeds and the like that are required for transacting a loan contract; its implementation or documentation shall be borne by the borrower. [see Shari’ah Standard No. (19) on Loan (Qard), item 8] 4/3 Expenses for delivery of possession in a deposit (Wadi’ah) The expenses of deposit and withdrawal in a contract of deposit shall be borne by the depositor (the owner of the deposit). 5. Key Modern Applications of Possession 5/1 Possession by the beneficiary of a bank draft or personal cheque is deemed constructive possession of the amount payable by the drawee bank. This is deemed possession of the payable amount even though there is delay in the payment of the actual amount, keeping in view what is laid down in Shari’ah Standard No. (1) on Trading in Currencies (item 2/6/5) as well as what is laid down in the Shari’ah Standard No. (12) on Commercial Papers (items 6/1 and 6/2). 5/2 Payments for a credit card are deemed constructive possession of such payments. [see Shari’ah Standard No. (2) on Debit Cards and Credit Cards (item 4/4)] 5/3 A deposit by a person of an amount in a bank account maintained for a debtor, upon his demand or with his consent, is deemed constructive possession irrespective of the deposit being by way of cash, by endorsement or by cheque drawn upon a bank with which an account is maintained, and the depositor is absolved of liability when he is indebted to the extent of such amount. 497
5. Shari ’ah Standard No. (18): Possession (Qabd) 6. Date of Issuance of the Standard This Standard was issued on 30 Rabi’ I, 1425 A.H., corresponding to 19 May 2004 A.D. 498