139- (1) Islamic Law (Fiqh) - Can a Transaction be Contingent? - Sayed Mohammad Baqer Qazwini

30 المشاهدات· 24/07/19

Al-Hujjah Islamic Seminary
1 مشتركين

في محاضرات

Islamic Law (Fiqh) 04, offered in 2020-2021, is now available to take online at Al-Hujjah Islamic Seminary. The first five classes are available to view as a demo to get an idea of how the course is instructed. To register for this class, see all class videos, and take the exams, visit hujjahseminary.com. For any questions, email us at [email protected]

أظهر المزيد

Transcript

[0:27]i welcome you to our islamic law o four class as we

[0:33]discuss the fic of bait peace be upon them last year we

[0:39]started the chapter of transactions transactions is called in arabic is the

[0:51]plural for the word act means a contract and we had a

[0:58]brief discussion on the types of contracts that there are and then

[1:04]we started to examine albaya the transaction of buying and selling in

[1:10]islamic law it's very important that we observe the laws of sharia

[1:17]when it comes to our business as one hadith states nine tenths

[1:22]of worship worshiping allah is what is doing business earning a halal

[1:31]income many people do business but they do not observe the laws

[1:34]that allah has prescribed for us and we end up violating the

[1:40]law of allah subhanahu ta'alah so it's very important for us as

[1:43]believers to be familiar with the book of transactions i know many

[1:49]pious individuals when it comes to the book of salah the book

[1:53]of fasting they know the details they've done due diligence to know

[1:59]the details but when it comes to the book of transactions they're

[2:03]not aware of that and they end up making violations and this

[2:08]is troublesome this is problematic so in this course we examine the

[2:16]laws of transactions previously when we ended last year we discussed a

[2:20]number of important aspects of transactions and we arrived on page 40

[2:28]of our book if you don't have the book inshallah we'll pass

[2:33]up the books later on page 40 of our book the author

[2:38]discusses an important condition that scholars have discussed in the book of

[2:46]transactions this condition is called al-mualat what does mean in arabic means

[3:00]when something follows the other directly there is no gap between them

[3:07]that is the meaning of we discuss this condition if you remember

[3:11]in the book of prayer in the book of one of the

[3:16]conditions of a proper valid wulu is not to have a gap

[3:19]between the parts someone washes his face and then somebody rings the

[3:26]door he goes he opens the door he talks to that person

[3:30]offers them a cup of juice and then okay let me go

[3:35]finish my no you broke the continuity of the one of the

[3:41]conditions that scholars have mentioned in the book of transactions is so

[3:48]the author says that we have two types of transactions we have

[3:53]a binding transaction and we have a non-binding transaction last year we

[4:02]discussed the difference between them a non-binding transaction is like wakala i

[4:09]give awakala to someone to buy something or kale in marriage is

[4:19]this binding meaning do i have to stick to the wakala or

[4:22]i can negate it anytime that i want i can negate it

[4:27]anytime that i want let's say today i tell you i authorize

[4:30]you to go and buy a car for me you are my

[4:35]wakeel in buying a car for me now that i have authorized

[4:39]you to buy the car for me if you buy it i

[4:43]have to pay it i have to pay for it why because

[4:47]i gave you away i authorized you to buy something on my

[4:51]behalf now let's say one second before you bought the car i

[4:56]call you i tell you you know what i change my mind

[5:00]can i can i negate tawakkala yes i can negate the ocala

[5:05]why because a waikala is a non-binding transaction whereas for instance buying

[5:14]and selling you sell something to someone and the sale is done

[5:21]the sale is done is this a binding transaction or non-binding transaction

[5:26]this is a binding transaction can i change my mind if i

[5:34]made the transaction i sit with you we make a deal i

[5:40]sell this book to you for ten dollars you say i accept

[5:43]the verbal transaction has been done can i nullify it no i'm

[5:48]not allowed to negate it or nullify it why because it's a

[5:52]binding transaction marriage marriage is a transaction it's an act between two

[5:59]parties is it binding or non-binding it's binding after the marriage contract

[6:03]is done the nikah they can one of the parties say you

[6:08]know what i changed my mind no you cannot it's a binding

[6:14]transaction now in arabic we call the binding transactions means what binding

[6:22]and we call the non-binding transactions like the transaction of giving a

[6:28]gift like the transaction of wakala what do we call them ja

[6:32]is be familiar with these terms know these terms because this is

[6:37]very important in islamic law in the book of transactions so we

[6:41]have akdonlazim and we have akdonja's the octalizin is the binding transaction

[6:47]the act that is is the non-binding transaction so these are the

[6:55]two types of transactions that we have now the author says on

[7:01]page 40 when it comes to a non-binding transaction like the wikara

[7:07]can there be a gap between the initiation of the contract and

[7:15]the acceptance of the contract the initiation of the contract means what

[7:20]al ijab i as the moa kid as the one who is

[7:23]giving the authorization i initiate the contract i say i give you

[7:28]the wakara to buy me a car that's the initiation part in

[7:34]order for this transaction to take place what does the other side

[7:37]have to say is he forced to accept accept it no he

[7:41]has to say i accept to be your wakeel can there be

[7:47]a gap between my statement as a muakkir as the one who

[7:50]is giving the authority and the time that the other person accepts

[7:56]can there be he says yes why because it's a non-binding transaction

[8:01]so if i give you ali i tell you i give you

[8:05]a wakata to buy me a car i say it today and

[8:08]i and you and i never withdraw my statement right tomorrow you

[8:13]come and say i accept i thought about it tonight i accept

[8:17]can you do that yes is not a condition the non-binding transactions

[8:29]it does not have to be consecutive immediately after the initiation there

[8:36]can be a gap between the hijab and the kabul the initiation

[8:40]and the acceptance even if it's a week later even if it's

[8:44]a month later that's fine what about is a allah transaction like

[8:55]the sale transaction buying and selling when it comes to buying and

[9:03]selling the author states that some scholars have stated that it is

[9:14]a condition for the validity of the transaction to not have a

[9:22]gap what allah some scholars said yes when you say i sell

[9:28]you this book and the other person says i accept there must

[9:32]not be a gap however a number of other scholars have said

[9:42]no it's not a condition so what if there's a gap between

[9:45]the initiation and the acceptance what's important is the intent i still

[9:51]intend to sell you this product even if you accept a week

[9:55]later a month later as long as the intent is there that

[10:00]is a valid transaction yes if i change my mind if i

[10:04]withdraw my initiation then at that point what happens it's no longer

[10:11]a valid transaction so this is what a number of scholars have

[10:19]said now in the book he says the following he says it

[10:25]appears to us as scholars that as long as the intent is

[10:29]there it suffices there can be a gap between the verbal initiation

[10:34]and the acceptance why he says because when you look at the

[10:39]earth when you look at the public out there and their perception

[10:45]of transactions the public states that if you the seller you express

[10:51]your intent to sell something and you still continue that you've not

[10:57]changed your mind any time after that the other party accepts it's

[11:04]a binding transaction doesn't have to be the same minute it could

[11:09]be the next day it could be the next week is it

[11:14]the verbal acceptance of the buyer or paying the money for example

[11:20]or well that goes under the section of whether transactions can be

[11:25]verbal or non-verbal so historically many scholars have maintained that it has

[11:29]to be verbal but modern scholars if you remember from last year

[11:34]modern scholars are saying that's non-verbal transactions are still valid yes so

[11:39]let's say let's look at the general right now let's say you

[11:44]make a deal with someone how much is this okay this is

[11:48]for ten dollars the seller of that book says i sell you

[11:52]this book for ten dollars you're thinking about it you don't say

[11:55]anything you go home that night you think about it you're convinced

[12:01]you come next day and you say i accept that deal whether

[12:05]you say it verbally or in a written way or through sign

[12:07]language it doesn't matter or i just put the ten dollars indicating

[12:12]my acceptance is that valid or we have to make a new

[12:18]contract say that hakeem says it's valid because when you ask the

[12:22]public the orf they tell you as long as the seller has

[12:26]the intent to sell it he's not changed that intent then this

[12:32]is a valid transaction so what if there's a gap why does

[12:37]this gap hurt he says it doesn't hurt and you can just

[12:39]ask the public and the public will tell you about that and

[12:44]he gives you know an example here yes if by the time

[12:51]the other person the buyer the customer by the time he comes

[12:54]a month later the seller has changed his mind he's like i

[12:59]initiated this contract last month now you accept no i've changed my

[13:04]mind obviously here it's not going to be a binding transaction so

[13:07]as long as the intent is there it's okay if there's a

[13:13]gap so what now why is the author mentioning this because there

[13:16]are scholars who've said there cannot be a gap there are scholars

[13:20]who have said that then the author says that according to us

[13:29]the scholars of ahlil bait in the shia school of thought there

[13:33]is something called the medjlis the medjlist means the session so other

[13:39]scholars from other schools of thought have said if you're in a

[13:44]session and you're discussing a transaction and the seller says i sell

[13:49]you this book if the customer the buyer leaves the session the

[13:54]medjlist that's it that initiation is negated they need another initiation whereas

[14:00]our scholars they say no that measure this is not a condition

[14:04]even if the customer steps outside the imaginus next week he comes

[14:09]and he says i am buying this it's still valid now you

[14:13]can argue but we have so many hadiths about the medjlist that

[14:17]once the session is over there are some changes to the transaction

[14:24]he says all those hadiths that we have about the majorness inshallah

[14:32]later in the book of transactions we'll talk about the what is

[14:39]the is basically the option to negate the transaction you are in

[14:47]a session with someone and you buy his house he tells you

[14:51]i sell to you my house for two hundred thousand dollars you've

[14:55]already done your research you know which house he's talking about you

[14:57]say i accept the minute you say i accept an islamic law

[15:01]there you go you have a binding transaction now in islamic law

[15:05]as long you're as long as you're still in the same session

[15:08]no one got up and left can you change your mind yes

[15:13]you can we call this chiara medjulis the option of the session

[15:19]which means as long as i'm still in the room with you

[15:24]even though i signed the paperwork i did everything according to islamic

[15:29]law as long as i'm here with you in this session i

[15:31]can change my mind let's say let's say i just said i'll

[15:35]buy this house and then my brother calls me is like look

[15:37]we found you a better house i can negate it but what

[15:41]happens the minute i step outside once the imaginus is over the

[15:49]session is over that's it it's a binding contract i cannot negate

[15:53]it anymore so the author says these hadiths about the majorities they're

[15:56]talking about this the option to negate the contract they're not talking

[16:01]about the validity of the contract itself you don't need to be

[16:05]in one session to have the initiation and the acceptance for it

[16:09]to be a valid contract you can decide on the details then

[16:13]the buyer the seller the buyer he says i sell you this

[16:18]house and then in the next session you accept that's okay that's

[16:22]fine yes but this is on the buyer's side but the seller

[16:28]has to stick with the price he put in the second no

[16:31]he can change his mind to as long as they're in the

[16:36]session yes of course both sides can change their minds yes the

[16:39]other side signed we're still in one session nobody left the seller

[16:44]is regretful he gets a better offer according to islamic law as

[16:51]long as he's in the medjlist he can change his mind overseas

[16:54]when you buy like here you can return stuff you can return

[16:57]when you go to the store once you walk out with this

[17:01]stuff whatever it is see because when you walk outside the session's

[17:05]over if you're inside the shop you can still change your mind

[17:08]but once you step outside the session's over that's it so this

[17:14]is the default islamic law by the way sometimes you can put

[17:20]your own conditions a seller can say i will only sell to

[17:25]you on the condition that you have no measures once you say

[17:28]yes you say yes even if you're still in the same session

[17:30]sometimes you can put your own conditions but we're talking about the

[17:33]default islamic law what is the default so the author says that

[17:40]this medjlist that you hear in the in the traditions or in

[17:44]the fatwa scholars that's about negating the contract otherwise it's not a

[17:51]condition to have the hijab and the kabul the initiation and the

[17:53]acceptance the initiation from the seller's side the acceptance from the buyer's

[17:58]side it doesn't have to be in one measure this there can

[18:02]be a gap between them now by the way this point that

[18:06]there can be a gap does not apply to all it does

[18:11]not apply to all transactions in the book of uh bay buying

[18:18]and selling it does apply but in marriage it doesn't many scholars

[18:21]have said that if the wife initiates the contract she tells the

[18:27]husband zawatch to kenobi immediately he has to say what what if

[18:31]he says next day a lot of scholars have said no over

[18:37]here that's not a very valid marriage contract so see there is

[18:40]a gap here so al-mu'alat which means not to have a gap

[18:44]is it a condition in the book of marriage yes yes it

[18:48]is a condition but is it a condition in the book of

[18:53]bei no it's not a condition in the book of beit so

[18:55]you'll find that different types of transactions have different types of rulings

[19:01]interestingly i'll mention this as an anecdote some scholars believe that in

[19:08]the book of marriage if the woman initiates the contract and the

[19:14]man does not respond as a precaution she cannot initiate another contract

[19:22]with another man until she hears from him so what if he

[19:28]stays quiet for a long time she's stuck yes that was his

[19:36]fatwa he's like when she initiates the contract there is some sort

[19:40]of link between her and that man we're waiting for him to

[19:44]reply because if he says that's it he's her husband so we

[19:48]have to wait for him to say what if he disappears we

[19:52]have no access to him he says she cannot marry another man

[20:00]no maybe he's thinking about it yeah if he signaled if he

[20:03]made a clear sign that i don't accept yeah sure but let's

[20:08]say he kept it open-ended he wants to think about it but

[20:12]he can't according to his fatwa one of my teachers told me

[20:16]he was a student he said according to his fatwa she has

[20:19]to wait until he responds she can't say hello let me just

[20:22]you know negate this contract you have to wait does he accept

[20:27]or not what do you mean if it's the other way around

[20:32]well usually in the way the marriage contract is worded as the

[20:37]woman has to initiate it now let's say the man initiates it

[20:44]same thing same idea now why did i bring this up a

[20:50]controversy happened during the time of ayatullahi a woman a woman in

[20:56]nejaf she initiated a marriage contract with imam al-mahdi she said speaking

[21:01]to the imam so what's the kind of see so they ask

[21:06]legally legally what are the repercussions because we know the imam because

[21:11]he's in he's not going to respond he gave a hakum as

[21:16]a precaution she has to stay single to the rest of her

[21:20]life because that's his fatwa his fatwa is in the book of

[21:25]marriage if one side initiates the contract the other side doesn't respond

[21:29]you have to wait until he responds no the person can be

[21:36]see right now if i say i sold my brother this water

[21:43]bottle and then he hears about it he's like you know what

[21:46]that's a pretty good deal he says i accept that's fine even

[21:50]if he's not present one side can initiate yes so so his

[21:58]father was that if one side initiates the marriage contract we have

[22:03]to wait for the other side to respond do you agree do

[22:08]you not agree if there is no way to find out whether

[22:10]the other side accepts or not he says as the other side

[22:15]cannot enter another marriage relationship so yes his fatwa was as a

[22:21]precaution if you follow me of course other managers have a different

[22:23]fatwa he says if you follow me as a precaution don't marry

[22:28]anyone else because how is the imam going to respond to you

[22:33]yes brother yes i was going to ask in this situation would

[22:40]silence be sign of acceptance it depends on the setting in the

[22:46]society if in that particular setting silence means no or it means

[22:49]yes we can go by it sure but let's say the other

[22:54]side did not indicate anything then the debate comes in the marriage

[23:05]contract yeah you should vote you should verbally say yes you should

[23:09]say it yeah yeah he has to say it but let's say

[23:12]he's waiting he's thinking about it they their opinion is she cannot

[23:17]initiate another contract until she hears from him he tells her i

[23:22][Music] by the way even the verbal inshallah in the book of

[23:28]marriage we talk about this in family law does it have to

[23:31]be verbal does he have to say in arabic there are some

[23:35]scholars who are flexible they say yes obviously it's good to say

[23:39]abiltune arabic but if he indicates in any way that he accepts

[23:43]it's fine but because marriage is an important sacred relationship scholars always

[23:49]want to do atiyat clear otherwise there are some scholars some who

[23:53]believe you can even say it in english any any language that

[23:58]indicates they're marrying each other even if she says it in english

[24:04]it's fine but the mainstream they have here they say as a

[24:06]obligatory precaution say it in arabic if it doesn't understand arabic it's

[24:11]better to be said in english maybe in arabic and english yes

[24:15]they could be both or they give wakala to someone who knows

[24:18]arabic yes that would be the the precaution but like i said

[24:22]there are many scholars who say any languages is fine yes i

[24:25]said i remember about 10 years ago my we we were in

[24:28]chicago and this is not my brother and my brother has very

[24:34]like he doesn't know how to speak arabic like so he can

[24:39]memorize the word yeah you couldn't say it right and then i

[24:43]remember my uncle set up for it yeah he said it for

[24:47]him right yeah he gave him to say it on his behalf

[24:51]yes that's fine god caused something yes he couldn't say it yes

[24:53]so a lot of times they'll do the wikala in the marriage

[25:00]contract to make sure that it's set properly so in any case

[25:04]in the book of bay buying and selling mualik is not a

[25:08]shot it's not a condition meaning there can be a gap between

[25:13]the initiation and the kabil too there can be a gap it's

[25:16]fine the next discussion on page 41 is italic contingency in baya

[25:24]we have two types of contracts we have the fixed contract and

[25:31]we have the contingent contract the fixed contract in arabic is called

[25:37]monetges be familiar with this term monetize means it's fixed it's done

[25:45]it's not contingent on anything you initiate the contract right now not

[25:51]based on any other conditions for instance i tell the customer i

[25:55]sell to you this water bottle he says i accept done what

[26:00]type of bay is this munetjes it's not contingent on anything the

[26:06]other type of transaction is called the mlak what does mean in

[26:16]arabic what does it mean stuck suspended right something that's suspended basically

[26:25]means contingent dependent on something okay take this example if i tell

[26:38]the customer i sell to you this book if zade approves if

[26:43]my father approves if my spouse approves or if ex-traveler comes back

[26:53]tomorrow or if x thing happens see it's contingent it's not a

[26:57]fixed transaction that's done right now no it's being dependent on a

[27:05]condition is this a valid transaction in the past in the past

[27:08]people did not know when the traveler would come back is he

[27:11]even alive is he dead where is he in the way so

[27:15]i'll tell you look i'll sell you this house i don't need

[27:19]this house anymore but on what condition if that traveler comes back

[27:25]so if he comes back then we have a sale if that

[27:30]traveler does not come back tomorrow what happens there is no cell

[27:33]or i make it contingent on someone's approval i tell you that

[27:40]i sell this book to you if my teacher approves if my

[27:43]friend looks into it and he approves because he's a specialist let's

[27:47]say in the world of stocks right is this a valid transaction

[27:53]or no this is called an islamic law the author states that

[28:00]the majority of scholars throughout history have stated the following attack battle

[28:07]whenever this transaction becomes contingent it's invalid the majority of scholars have

[28:16]said that why because they say the two parties who are doing

[28:21]the transaction they must be certain and they have yakin that the

[28:25]transaction is going to go through but if there are any uncertainties

[28:30]how do i know if this traveler is going to come or

[28:33]not how do i know if this person is going to approve

[28:34]or not if there is no certainty then that's not really a

[28:38]valid transaction you have to have certainty at the time of making

[28:42]a transaction in order for it to be valid in islamic law

[28:45]okay so that's the majority of scholars historically the author says but

[28:54]there is a group of scholars who say no atta is fine

[28:57]if the transaction is contingent that's completely fine it's completely okay and

[29:04]it's it's very valid and we have three types of talit three

[29:11]types of contingencies the first one you stipulate a condition but you

[29:18]already know the result of the condition the example that the author

[29:23]gives on page 42 is this example i sell this book to

[29:31]you incana milky if it's mine let's say you go somewhere and

[29:36]there's mixed up books you don't know whose book is belongs to

[29:39]who so you take this book and you say i sell you

[29:45]this book if it's mine now you know it's yours because you

[29:49]opened the first page your name was on it so you already

[29:53]know the outcome of this condition right you know it's mine so

[29:58]this is the first type the second type is something that the

[30:04]condition has not been fulfilled yet but you already know it will

[30:10]be fulfilled like what an example of that is the beginning of

[30:19]the month today is september 14th in a couple of weeks it'll

[30:23]be the first of october so you tell the customer i sell

[30:28]this book to you if the first of october comes will the

[30:32]first of october come you have certainty right unless the day of

[30:37]judgment happens before that but you have yaquin you have confidence that

[30:40]the first of october is going to come so this is the

[30:46]second type of condition it has not been fulfilled yet unlike the

[30:49]first one it's you already know it's your milk right now you

[30:52]already know you own it in the second example the condition has

[30:56]not been fulfilled yet it will come in the future but you

[31:00]know it will come the third type is the one that's debated

[31:05]by scholars it's in the future but you don't know if it

[31:08]will be fulfilled or not i sell this water bottle to you

[31:16]if ex-traveler comes if i make a profit at the end of

[31:23]the month it could happen it could not happen so we said

[31:26]the measure of the scholars what's their opinion is this valid no

[31:30]it's not valid but some scholars especially some modern what do they

[31:35]say like the author the author of this book he says yes

[31:42]it's a valid transaction and he says was one of the great

[31:46]maharaja of najef he's the author of the book is the fifth

[31:52]book that today the maraja when they want to teach fit the

[31:57]highest level of the they basically go by his text that's how

[32:03]important it is he says these great scholars all of them say

[32:12]that if you have a leak in the transaction you have a

[32:19]contingent condition like that it's valid it's fine okay what's their proof

[32:30]assay de liesdi says one proof against this talit is that there

[32:40]is ajma there's almost consensus in history that this type of transaction

[32:45]is not valid if you put a condition that might happen in

[32:50]the future or it might not happen he says this ijma is

[32:55]not binding on me why he says because which consensus is binding

[33:00]the one that gives me this is the position of sharia and

[33:06]this is the position of the imams when sometimes you see all

[33:10]scholars unanimously throughout history have an opinion you're like okay they've obviously

[33:14]got it from the imam assad yesterday says no when i look

[33:19]at this issue and the way the scholars have argued their point

[33:25]it does not give me a keen uncertainty that they're reflecting the

[33:30]opinion of the imam or sharia it's just their tihat why i

[33:34]can tell from their arguments for instance they say well how can

[33:39]this be a valid transaction if you don't know the traveler is

[33:40]going to come or not she says so what that's fine as

[33:44]long as the earth the public sees this as a valid type

[33:47]of transaction then it's fine it's a kind of it's like an

[33:51]options trading today we have options trading in the stock market people

[33:54]do that all the time that's fine so it's like this ejemal

[34:01]this consensus is not binding on me as for a sheikh naini

[34:06]he gives an interesting piece of evidence over here he says when

[34:13]you look at most islamic rulings you find that they are muall

[34:17]in fact there is contingency in them for instance when the quran

[34:22]says who's it talking to only the sahaba who were present when

[34:30]the prophet said or to every muslim but how how can you

[34:35]prove that the quran didn't didn't directly talk to you you did

[34:40]not exist at the time of the revelation of quran when the

[34:42]prophet said it so how is it applying to you then what

[34:49]does it mean it's that means the law is you have to

[34:57]pray if you exist as a person who's mature who understands and

[34:59]the conditions apply to you then you have to pray see there's

[35:04]a contingency embedded in all laws when the quran says you have

[35:12]to pray the ruling is prayer you have to pray but who's

[35:16]the subject if there is a mukhelev out there who hears this

[35:20]verse he has to pray see if that's how we can apply

[35:26]it to all eras otherwise if you don't take the step the

[35:28]quran doesn't apply to you directly but i never spoke to you

[35:33]the prophet never spoke to us we never we did not even

[35:35]exist for us to be the audience of the prophet so how

[35:38]are we the audience of the prophet through this contingent issue over

[35:43]here that the prophet basically was saying if there is a person

[35:48]out there in society and the conditions of these law applied to

[35:52]them they have to implement them see there is some level of

[35:57]contingency there so basically says that's one proof that our laws are

[36:03]based on contingencies so what let's have this contingency in the um

[36:08]you know in the transactions as well another proof is a is

[36:14]a more powerful one he says we have islamic rituals that are

[36:20]based on talik there's contingency in them like what like what like

[36:25]nedra in the book of nada how do you make a vow

[36:30]another tell me if this is valid o allah if you bless

[36:36]us with a child then i make a vow to do so

[36:43]and so to pray salah to lay for 40 nights is this

[36:45]a valid net yeah but is this a valid syria for the

[36:50]nether of course but there's contingency do you know if you're going

[36:55]to get a child or no no no ya allah if my

[37:02]father is healed then i make a vow to let's say give

[37:06]charity to the poor or to go to hajj or to go

[37:09]to ziada this condition that you're putting for the nerve if my

[37:12]father is healed do you have knowledge that it's going to happen

[37:15]or no it could happen or it could not happen but is

[37:19]there not valid yes it is so he says in our islamic

[37:24]law we do have examples of talik in transactions remember another is

[37:29]a transaction in the end it's a type of transaction that you

[37:32]do with allah subhanahu wa saying just like we have these examples

[37:36]don't come and attack me and say oh how are you making

[37:40]bae like that who's like so what what's the big deal i

[37:42]know most scholars in history have not allowed that but i'll allow

[37:47]it because i have sufficient proof so a number of recent scholars

[37:50]have said having contingency in the bay is valid we don't see

[37:55]any issue with it so what do you say about this it's

[38:00]a condition so it makes sense why not if the condition the

[38:05]bay is fulfilled for example i'm selling to this house if the

[38:08]person renting it leaves once he leaves i'll send you the house

[38:12]that's it and you don't think that at the time of making

[38:16]the transaction you need to know the outcome but you don't have

[38:22]to know do you need to know the outcome or it's fine

[38:24]if you don't no it's fine if you leave i'll tell you

[38:27]that okay if it doesn't leave you so some scholars maybe they

[38:29]were under the impression that how do you rationally make a transaction

[38:34]because see in arabic we call the transaction not you're binding something

[38:40]how do you make a transaction and you intend it without knowing

[38:45]whether the condition is fulfilled or not so like how do you

[38:49]really intend it it's like in flying in the air it's not

[38:52]something set maybe that was the problem they had with it but

[38:56]modern scholars are saying when we analyze it we don't see any

[38:59]issue with it as long as both sides understand this concept and

[39:03]they've both agreed fine like you said he can say the owner

[39:09]of the house can say i sell you my house if the

[39:11]tenant who's renting the house now leaves on the 1st of october

[39:17]i don't know if he's going to leave or not if he

[39:19]leaves we have a sale if he doesn't there's no sale that's

[39:23]fine so i wait until the 1st of october if the condition

[39:28]is met the tenant left it's my house automatically i don't need

[39:32]to do anything else we've already made the transaction if october one

[39:36]comes and the tenant is stuck in there he's not leaving anywhere

[39:39]taking advantage of covet 19 right then there's no sale i have

[39:46]a question yes some people like they write their house for their

[39:54]kids if they die the house goes to their kid okay so

[39:57]yes some say i have a condition to give this house to

[40:03]let's say my son or my daughter if i die yes this

[40:07]is not valid why because first of all this is not a

[40:11]sale you're not buying or selling anything you're giving a gift while

[40:16]you're alive while you're alive you can gift anyone whatever you want

[40:22]but the minute you pass away this house is no longer yours

[40:26]for you to give it to your son or daughter it becomes

[40:29]the warathas the inheritors okay up to one-third islam has allowed you

[40:36]to designate what happens to your inheritance so up to so if

[40:40]that house is from the one-third you can give it otherwise you

[40:44]cannot that's why that statement is not valid because if you analyze

[40:49]it what is the statement when you say when i die my

[40:52]house goes to my daughter what exactly are you is that a

[40:55]gift that you're giving so we tell the person we have two

[40:58]scenarios either you're alive or you're dead if you're alive okay give

[41:04]the gift now the minute you pass away it's no longer yours

[41:07]for you to gift it okay can you say it in a

[41:11]different way this house is fun for my daughter but i have

[41:15]an interference yes you can make hibernate you can give a gift

[41:21]with conditions what's the condition you say right now while i'm alive

[41:26]i'm breathing i'm alive my house is for my daughter but i'm

[41:30]only giving it to you as a gift on the condition that

[41:34]you allow me to use the house whenever i want if she

[41:38]accepts then yes it's a binding transaction it's a hiba and that's

[41:42]a good workaround yes so we need an islamic workaround i know

[41:48]some people don't do this and then the house ends up going

[41:51]to that daughter this is a violation this house is rasp because

[41:56]the other inheritors her siblings for instance they have a share in

[42:01]it yeah but that says i can take it no he didn't

[42:02]have the right if he gifted it to you in his lifetime

[42:05]sure honey it's yours up to one third from his inheritance sure

[42:12]he can give it to you but if the house's value is

[42:15]more than the one-third no you cannot take it so the question

[42:20]is okay then how do how does how can a father gift

[42:23]that to his daughter he has to gift it to her in

[42:25]his lifetime and then he can put a condition that you know

[42:29]give me the the right to come to the house whenever i

[42:33]want to use it whatever i want yes so he can put

[42:37]conditions like that said what if thought but dad writes when was

[42:46]he only has control over one-third yes two-thirds has to go to

[42:53]the inheritors by default anything i own will have to go to

[42:58]my inheritors the waratha my immediate family it will go to them

[43:03]by default everything that i have a split according to a particular

[43:07]percentage and islamic law now one-third of what i own i can

[43:10]designate that i wanted to go to a masjid to a hospital

[43:15]to an orphanage to my son my daughter i have the right

[43:17]but only up to one-third not more than that if it's more

[43:23]than one-third it's haram unless of course the warfare they agree they

[43:26]accept they have to willingly consent to it when a person dies

[43:32]they don't own their money anymore so they can't dictate what happens

[43:37]to it except one-third of it you can dictate so if you

[43:40]want let's say your house to go to one of your children

[43:42]by the way this always happens in the community how you say

[43:47]the father goes and he makes a legal document in the court

[43:50]that only my daughter fulana or my son fulan gets my inheritance

[43:55]by the way that's haram if you deny others their share so

[43:59]you ask him why it's like say it all my children abandoned

[44:03]me they don't even care about me they don't even call me

[44:05]except her she's the one who checks on me she takes me

[44:10]to the doctor she or my son he's the only one who

[44:11]cares so i don't want those others to inherit a dime from

[44:18]me we tell that person we understand your frustration allah is going

[44:22]to punish them for abandoning you but you don't have the right

[44:27]to deny them inheritance it's not yours this is god this is

[44:30]divine law so it's like saying i really don't want them to

[44:33]get a dime what do i do so we tell them if

[44:35]you really want that give your daughter now everything you have as

[44:39]a gift tell her all my money in my bank account all

[44:42]my properties everything i give it to you as a gift right

[44:45]now she has to accept that's it's all hers right now that

[44:50]way that way if he passes away he didn't own anything to

[44:54]leave as inheritance so that would be a workaround yes but if

[44:59]the person does not do this work around it's haram for them

[45:03]to make such a will and many many muslims unfortunately they make

[45:06]this violation it's a big violation in the eyes of allah it's

[45:10]it's usurping the rights of others it's like stealing there's no difference

[45:14]between this and going and stealing from someone it's their hat now

[45:20]someone will say yeah but i don't want to give you know

[45:23]everything as a gift to my daughter what if she flips against

[45:26]me how do i know well that's the risk that you have

[45:30]to take unless you put a condition like that that i give

[45:32]you this gift on the condition that you always allow me to

[45:34]use this house you won't kick me out of the house you

[45:38]can put a condition sure if it's very sad um according to

[45:52]islamic law this is binding according to islamic law this is binding

[46:00]yes so that's why it's important when things like that happen to

[46:04]have witnesses who document it because if you don't have witnesses there's

[46:08]going to be dispute and then you have to prove your point

[46:14]so it becomes problematic from that aspect that's why it's always recommended

[46:18]in islamic law have witnesses write it have a signature so that

[46:22]others will believe you but islamically between you and allah the verbal

[46:27]statement is enough so just have witnesses a recording have two witnesses

[46:32]from your family who says we heard that verbal transaction or have

[46:36]the person write it between you and allah it's a it's a

[46:42]done deal it's yours you have the right to it yes by

[46:44]the way i read an article maybe last year that this father

[46:50]he was getting older and older he had this amount of money

[46:54]in the bank account and he didn't really know whom to trust

[47:00]to give this money to and to spend it on him when

[47:04]he needs because you know he he figured maybe as i age

[47:07]i cannot make good decisions for myself so what did he do

[47:11]he went and he talked to his son he told them my

[47:14]son i'm going to give you all my money right now you're

[47:18]in charge of it so no one comes and fools me later

[47:20]sometimes you know the lawyers if they have a good relationship with

[47:24]that client and he or she is aging they convince them to

[47:29]appoint the lawyer to be to have the power of attorney so

[47:33]basically what happens is some of them are millionaires by the way

[47:36]they're getting older they can't make good decisions he goes and he

[47:41]signs a paper to the lawyer that all my money you decide

[47:44]what happens to it yes many this happens a lot in this

[47:50]country so this elderly person he tried to avoid the situation what

[47:51]did he do he went to his son he's like my son

[47:53]you're the closest person to me i'll give you all my money

[47:58]right now let's say it's a hundred thousand dollars i'll give it

[48:00]to you right now you own it but basically spend on me

[48:04]whenever i need the money it's like sure of course a few

[48:07]months passed by the dad needed money so he called the son

[48:12]ya allah give me five thousand he's like no it's mine and

[48:14]he backstabbed his father this was i think in the new york

[48:20]times it was a big controversy so basically he had to go

[48:22]and get a lawyer to sue his son and to show proof

[48:25]that the only reason why i gave him is to spend it

[48:28]was a big big mess but legally the le the law was

[48:32]with the son my father gave this to me as a gift

[48:35]see sometimes when you give someone a gift they could end up

[48:40]backstabbing you you never know what happens it's very sad they inherit

[48:45]something and they're still alive is it better to get if they

[48:50]really want something for you they should give it to you now

[48:53]but put a condition like that if it's a house for instance

[48:58]that as long as i'm alive you allow me to stay in

[49:00]it and you cannot kick me out if you put a condition

[49:04]like that then yes that would be safer yeah because a lot

[49:06]of people especially without cold yes and when they die they they

[49:11]have that what if they and that's when they pass out everything

[49:13]correct so i don't know i don't think that's right i think

[49:18]the parents give it to while they're alive because that makes sense

[49:20]yes or up to one-third they can write in their wasaya and

[49:24]there will up to one-third they can designate what happens to it

[49:27]one final discussion here on page 44 and 45 very briefly is

[49:34]historically many scholars have maintained that the transaction in order for it

[49:41]to be in order for it to be valid it has to

[49:46]be verbal ability it has to be verbal can we initiate a

[49:56]transaction in form i draft a contract to sell this laptop to

[50:01]you and you sign it and we have a transaction is this

[50:06]okay or no historically historically most scholars in the past what did

[50:11]they say historically most scholars of the past what was their opinion

[50:15]does it have to be verbal or no yes scholars of the

[50:20]past they were very strict with these transactions to regulate everything to

[50:26]make sure there is you know no room for someone to manipulate

[50:31]the documents they said it has to be verbal that's it you

[50:33]verbally state unless unless you have a medical issue that prevents you

[50:37]from verbally communicating like for instance let's say you're deaf you cannot

[50:42]speak okay fine then you could communicate that through sign language or

[50:48]through where in form today what are the saying can you have

[50:53]a valid transaction non-verbally through or in form through signs or through

[51:02]a written document yes they maintain that this is fine you can

[51:06]actually initiate a contract not necessarily verbally it could be in a

[51:13]document you can go online you buy something you accept you put

[51:17]your credit card and that's it in the past in the past

[51:22]scholars did not recognize this as a valid transaction like where's the

[51:26]verbal agreement here yes the way to do it today islamically correct

[51:31]according to their opinion is every transaction when you go online and

[51:37]you buy something let's say from amazon you record your voice and

[51:40]basically you say i am buying this product for this price and

[51:46]then somebody there says i accept then that would be valid if

[51:52]we want to go by those strict conditions of the past but

[51:54]today scholars are flexible with these laws so they say it's okay

[51:59]it does not have to be verbal now what's the proof remember

[52:03]we want evidence the proof of modern scholars is that the quran

[52:10]says we discussed this verse last year means honor your contracts basically

[52:16]honor your transactions fulfill your transactions when the public looks at the

[52:26]word contract transaction what does what do people understand from this term

[52:31]this quranic term is it restricted to verbal contracts obviously a verbal

[52:38]contract is a clear example of a contract or it can be

[52:41]in form do people call a written contract a contract do they

[52:45]call it a transaction can you say in your society i made

[52:49]a transaction with amazon.com can you say that is that true or

[52:53]false true so the author is saying as long as the public

[52:59]sees this as a transaction then the word act applies to it

[53:04]the minute the label act applies to it what does the quran

[53:09]say honor your contracts so it's a valid contract and it's binding

[53:12]that's his proof the author's proof and maraja today but in the

[53:18]past scholars disputed that they're like no no acted means you verbally

[53:23]initiate not written and sign language and these others no that's not

[53:28]good enough that was their understanding but today upon re-examining these laws

[53:32]it's very clear to us in our society that this is a

[53:38]contract question and this is where you see the role of let's

[53:42]say somebody lives in china somebody lives in america let's just take

[53:48]this example let's say in china only if you verbally make a

[53:53]deal it's considered a contract if you write something on paper and

[53:58]you sign it in chinese society that's disregarded people do not call

[54:03]it a contract they don't even perceive it as a contract i'm

[54:06]just theoretically saying that so that's the first person the second person

[54:12]he lives here in america and you live in a society that

[54:17]does see written contracts as valid contracts people call it yeah this

[54:21]is a hacker this is a transaction he's like but i never

[54:24]said anything's like so what but you re you wrote it you

[54:26]signed on it you went on the internet and you clicked you

[54:29]you accepted the terms and conditions okay so we have these two

[54:36]societies now let's say you have a muslim following the merger in

[54:40]china and in that society the written form is not considered the

[54:49]contract what will the merchant tell him if he tells the medja

[54:51]i went and i did this written form what will they tell

[54:55]them is that a valid transaction or no you tell them no

[54:58]you don't have to honor that transaction it's not even a valid

[55:00]transaction but why what's your proof because in your society it's not

[55:05]even a contract so whatever you did with the other person it's

[55:08]not a contract maybe it's a promise to make a contract expressing

[55:12]your intent later to make a contract but it's not a contract

[55:15]in that society now the guy who lives here he asked about

[55:19]all of them tell him it is a contract now is this

[55:23]a discrepancy in the fatwa no why see the quran says live

[55:30]in a society where you honor your contracts in society number one

[55:34]this is not even seen as a contract so there's nothing for

[55:37]you to honor there is no contract in another society this is

[55:41]a contract so you have to honor it this point my dear

[55:45]brothers and sisters is extremely important and today one of the biggest

[55:51]discussions in hausa is to figure out the context for these subjects

[55:55]that's key in the book of marriage inshallah you'll see that many

[56:00]many of today's laws can become binding based on this concept for

[56:05]instance if you get married in the west is there the clear

[56:12]expectation from both sides that if they divorce they split half and

[56:17]half yes is there that clear clear clear expectation thus the manager

[56:22]will say if it's such if it's that clear such that it's

[56:27]like a given condition when they get married then yes even if

[56:30]it was not stipulated in the akid and they kept big top

[56:33]upon divorce they have to split half and half why because there

[56:39]is a clear expectation that makes this a condition in the contract

[56:42]but let's say you live in allah there is no such expectation

[56:47]if you want to have this happen you have to state it

[56:49]explicitly in the marriage contract the manager will tell you in that

[56:54]society this is the fatwa in this society this is the fatwa

[56:58]or with house chores these days the minute there's a fight between

[57:04]the husband and the wife well i don't have to do this

[57:07]i don't have to do i don't have to cook the saiyan

[57:09]said it's not my obligation to scholars say scholars say when you

[57:14]get married today in today's society when you get married is there

[57:19]a clear expectation that i as the husband i'm going to be

[57:23]responsible for these things and you as the wife you have to

[57:28]be responsible for the is there a clear expectation such that it's

[57:33]like an explicit condition or no such that such that let's say

[57:38]just as an example if the wife would say doesn't cook not

[57:40]one day but like just says i'm not going to cook anymore

[57:43]does the does the society see her as violating the marriage contract

[57:48]or no it's all right she doesn't have to it depends on

[57:51]your society some societies might see it as a clear expectation so

[57:54]there is room for a merger to say no it's binding you

[57:58]have to honor that but in societies in which it's not a

[58:01]clear expectation then it's not an issue what about the woman working

[58:07]outside the house like having a job and she got married and

[58:10]the expectation is that she's gonna stay working let's say and you

[58:15]see we're not talking about any expectation i know there's always some

[58:19]expect no it's a clear expectation fee oh it's like it's like

[58:23]whether you state it in the nick the ketchup or not doesn't

[58:27]make a difference it's there it's that clear is it to that

[58:30]point if it is to that point then yes but many people

[58:34]probably argue no no it's not to that extent what if your

[58:38]society's expectations are moral remember that that condition or expectation cannot violate

[58:44]islamic principles it must be in line see for instance splitting the

[58:49]wealth upon divorce right islam has left left that up to the

[58:54]husband and wife by default the wife only gets the what the

[59:00]dowry but can they agree on more than the dowry in the

[59:03]initial contract of course they can so if there's a clear condition

[59:06]in that society that whoever gets married automatically half and half there's

[59:11]that clear expectation clear condition crystal clear such that whether you say

[59:16]it in the contract or no it doesn't matter in fact if

[59:21]you don't want this to happen you have to actually say in

[59:25]the country that i don't want this to happen if it's that

[59:28]clear then it's binding and it's not violating any islamic principle so

[59:32]in any case the author says there is no difference between the

[59:36]verbal transaction or if you communicate it non-verbally in written form or

[59:40]in some other form foreign

0 تعليقات

التالي

139- (1) Islamic Law (Fiqh) - Can a Transaction be Contingent? - Sayed Mohammad Baqer Qazwini

Transcript

التالي

استكشاف المزيد

يرجى ملاحظة أنه إذا كان عمرك أقل من 18 عامًا ، فلن تتمكن من الوصول إلى هذا الموقع.

التالي

139- (1) Islamic Law (Fiqh) - Can a Transaction be Contingent? - Sayed Mohammad Baqer Qazwini

Transcript

التالي

استكشاف المزيد

اختيار طريقة الدفع

لغة