Post on 25-Nov-2014
transcript
MAHYUDDIN KHALID emkay@salam.uitm.edu.my
FIQH MUAMALAHISLAMIC BUSINESS TRANSACTION
CHAPTER FOUR
AL-QARDH
DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
DEFINITION EVIDENCE PILLARS OF AL-QARDH CONDITIONS OF AL-QARDH QARDH AL-HASSAN PROCEDURES OF DEBT DISBURSEMENT
CONTENT
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
Qardh: Loan/ Debt Literally:
To cut something off; money given to the borrower is called Qardh since portion that has been cut off from the property of the lender
Also known as al-Salaf or al-Dayn Technically:
Specific contract on transferring a specified property to another party on condition that a similar property will be given back in return
DEFINITION
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
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The property can be any type of assets ranging from cash money, livestock or business
It is called qardh, as through this contract a certain part of the lender's property is cut off and given to the borrower.
Qardh refers to a contract through which a lender gives a certain homogenous property to a borrower on the condition that the latter is responsible to return a similar property immediately upon a demand or at a specified time.
NATURE OF AL-QARDH
DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
Quran
Hadith Narrated by Anas ibn Malik: The prophet saw said: I saw on the night of Isra’ something written on the
gate of the paradise. Donation(sadaqah) is rewarded 10 folds, and qardh is rewarded 18 folds.
I asked Gibrail: Why is it giving Qardh is better than donation? He replied: Because the receiver of the donation asked for it while he actually has something, but the borrower will not ask for loan except when there is a necessity
EVIDENCE
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
Ijma: The scholar had formed an ijma’ that Qardh is
permissible in Islam This contract is classified under the category of contracts
pertaining to the utilization of usufruct (aqad al-manfa’ah)
There is no actual transfer or exchange of property involved.
EVIDENCE
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
Muqridh Creditor or Lender
Muqtaridh Debtor or Borrower
Maal Property
Sighah Ijab: Offer Qabul: Acceptance
PILLARS OF QARDH
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
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FLOW OF AL-QARDH
Muqridh (Creditor)
Muqtaridh (Debtor)
Maal (Property/
Asset)
Ijab
(Off
er)Q
ab
ul
(Acc
ep
tan
ce)
DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
Ijab (Offer) and Qabul (Acceptance) Must be in a very clear and concise type of sighah
(offer & acceptance) Ahliah
Eligibility of the contracting parties (sane, adults & qualified)
Quantity and Quality Must be specified in quantity, weight & quality Items that are not mixed with other material
CONDITIONS OF QARDH
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
Literally Qardh means cutting off. Hasan means benevolence, beautiful, and kindness.
The term al-qard al-hasan literally means beneficial loan, benevolent loan, gratuitous loan, and beautiful loan.
A debt that is free from any type of predetermined condition or promise to repay back more than the original amount stated in the contract, but a special token is sincerely given by the debtor to the lender during debt settlement not because any written agreement or any predetermined provision or term
QARDH AL-HASAN
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
Under Qardh al-Hassan, borrowers or debtor con voluntarily give some extra amount more than the loan principle provided that:1. Not stated in the contract 2. Not have agreed upon3. Not predeterminded in any manner by both parties
QARDH AL-HASAN
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
Quran:
The Quran verses explains Qardh al-Hassan between Allah and the believers whereby it is actually an offer from Allah for them to lend their energy, time and property in Qardh al-Hassan manner
They will receive back all the things that they had sacrificed for the sake of Allah plus all extra rewards that will be given to them
EVIDENCE
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
Hadith: Abu Rafi said: The prophet (s.a.w) borrowed a young
camel and then the camels from the zakat came to him. He ordered me to repay the man his young camel.
I said, I can only find a good camel in its seventh year among the camels
The prophet said, “Give it to him. The best of people are those who discharge their debts in the best manner”
EVINDENCE
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
1. The debt transactions must be documented in a written contract and binding agreement. Jumhur Fuqaha
The command to “put it down in writing” is recommended command indicating the best suggested practice; not compulsory
Supported by Abdullah Yusuf Ali that it is not obligatory in law.
Contemporary scholars (Mohd Tahir Asyur & Sayid Qutb)
Original ruling for the command is mandatory practice, that all debt must be documented and not optional.
Reason: Obviously understood especially if we studied report on cases of false claims, forgery, and fraud in the society which intensifies in an almost alarming rate every year.
PROCEDURE OF DEBT DISBURSEMENT IN ISLAM
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
Verses 283 indicate the “rukhsah” which exempts parties involved from this following ruling provided they can really trust each other.
By making writing debts compulsary, people will not have tendency of taking things for granted from the beginning.
The ruling will be benefiacial for creditors to legitimixe their claims to the debtors
PROCEDURE OF DEBT DISBURSEMENT IN ISLAM
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
The objectives (maqasid ) of this rulings: Secure the right of all parties involved and
legitimize their claim from one another Avoid any future dispute or argument Organize and standardize the procedure of
muamalat in the business society Enable to distinguish between legal and illegal
contracts
PROCEDURE OF DEBT DISBURSEMENT IN ISLAM
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
2. The parties involved must not be reluctant or wary in documenting every single loan transaction regardless of its size or duration. The emphasis given on documentation of debt has been justified as in above verses: Aqsat
It is preferable, equitable and fairer for all parties in sight of Allah
Aqwam A documented testimony or evidence is more reliable
and consistent than oral testimony which based solely on memory
It can prevent any suspicion or doubt on the contract itself, or any claim made by any parties
PROCEDURE OF DEBT DISBURSEMENT IN ISLAM
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
3. The parties involved must provide witnesses to certify the debt contract with the following conditions: The witnesses must be either 2 males or 1 male and
two females The witnesses must be reliable and approved or
accepted by both parties. Reliability is based on the track record of the witnesses.
The witnesses must not refuse to testify when they are called upon by disputed parties or by the relevant authorities
PROCEDURE OF DEBT DISBURSEMENT IN ISLAM
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DEFINITION
EVIDENCES
PILLARS
CONDITIONS
QARDH AL-HASSAN
DEBT DISBURSEMENT
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END OF CHAPTER