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Circumstance in Which One Has a Right to Cancel a Transaction
998. The right to cancel a
transaction is called Khiyar (option to cancel a transaction). The seller and
the buyer can cancel a transaction in the following ten cases:
(i) If the parties to the transaction have not parted from
each other, though they may have left the place of agreement. This is called
Khiyar-ul-Majlis.
(ii) If the buyer or the seller has been cheated in a sale
transaction, or in any other sort of deal either of the parties has been
deceived, they have a right to call off the deal. This is called
Khiyar-ul-Ghabn.
(iii) If while entering into a transaction, it is agreed
that up to a stipulated time, one or both the parties will be entitled to
cancel the transaction. This is called Khiyaru-sh-Shart.
(iv) If one of the parties presents his commodity as better
than it actually is, and thereby attracts the buyer, or makes him more
enthusiastic about it. This is called Khiyar-ut-Tadlis.
(v) If one of the parties to the transaction stipulates
that the other would perform a certain jod, and that condition is not
fulfilled. Or if it is stipulated that the commodity will be of particular
quality, and the commodity supplied may be lacking in that quality. In these
cases, the party which laid the condition can cancel the transaction. This is
called Khiyaru Takhalluf-ish-Shart.
(vi) If the commodity supplied is defective. This is called
Khiyar-ul-Ayb.
(vii) If it transpires that a quality of the commodity
under transaction is the property of a third person. In that case, if the owner
of that part is not willing to sell it, the buyer can cancel the transaction,
or can claim back from the seller the replacement of that part, if he has
already paid for it. This is called Khiyar-ush-Shirkah.
(viii) If the owner describes certain qualities of his commodity
which the buyer has not seen, and then the buyer realises that the commodity is
not as it was described, the buyer can rescind the deal. Simlarly, if the buyer
may have seen the commodity something back, and purchases it, thinking that the
qualities it had then will be still existing, and if he finds that those
qualities have disappeared, he has a right to cancel the deal. This is called
Khiyar-ur-Ru'yan.
(ix) If the buyer does not pay for the commodity he has
bought for three days, and the seller has not yet handed over to him the
commodity, the seller can cancel the transaction. But this is in the
circmstance when the seller had agreed to allow him time for deferred payment,
without fixing the period. And if the seller had not at all agreed on deferred
payment, he can cancel the transaction at once, without any delay. And if he
had allowed him more than three days credit, then the seller cannot rescind,
the deal before the termination of three days. if the commodity is perishable
like fruits, which would perish or decay in less than three days, the respite
is less. This is called Khiyar-ut-Ta'khir.
(x) A person who buys an animal, can cancel the
transaction within three days. And if a person sold his commodity in exchange
for an animal, he can also cancel the transaction withing three days. This is
called Khiyar-ul-ayawan.
999. If a buyer not know the price
of the commodity, or was unconcerned about it at the time of purchase, and buys
the thing for higher than usual price, he can cancel the transaction if the
difference of price is substantial, and if the difference is established at the
time of abrigation. Otherwise, the buyer cannot cancel the deal as a
precaution. Similarly, if the seller does not know the price of the commodity,
or was heedless about it at the time of selling, and sells the thing at a
cheaper price, he can cancel the deal if the differen is substantial and if
other conditions mentioned above obtain.
1000. In a transaction of
conditional sale, for example, a house worth $2000 is sold for $1000, and it is
agreed that if the seller returns the money within a stip ulated period, he can
cancel the transaction, the transaction, the is in order, provided that the
buyer and the seller had genuine intention of purchase and sale.
1001. In a transaction of
conditional sale, if the seller is sure that even if he did not return the
money within the stipulated time, the buyer will return the property to him,
the transaction is in order. However, if he does not return the money within
the stipulated time, he is not entitled to dement the return of the property
from the buyer. And if the buyer dies, he (the seller) cannot dement the return
of the property from his heirs.
1002. If a person mixes in demand
the ferior tea with superior tea, and sells it as a superior tea .buyer can
cancel the transaction.
1003. If a buyer finds out that
the thing purchased by him is defective, like, if he purchases an animal and
finds that (after purchasing it) it is blind of an eye, and this defect existed
before the transaction was made, but he was not aware of it, he can cancel the
transaction and return the animal to the seller.
And if it is not possible to
return it, for example, if some change has taken place in it, or it has been
used in such a manner that it cannot be returned, the difference between the
value of the sound property and the defective property should be assessed, and
the buyer should get refund in that prortion of the amount paid by him to the
seller. For example, he has purchased something for $4 and finds out that it is
defective. Now the price of the thing in perfect faultless state is $8 and that
of deficient is $6, the difference between these two prices will be assessed at
25%. The buyer will be paid 25% of what he actually paid, and that will be one
dollar.
1004. In the following two cases
the buyer cannot cancel the transaction because of defect in the property
purchases by him, nor can he claim the difference between the prices:
(i) If at the time of purchasing
the property, he is aware of the defect in it.
(ii) If at the time of concluding
the contract, the seller says, I sell this property with whatever defect it may
have. But, if he specifies a defect and says, I am selling this property with
this defect, and it transpires later that it has some other defect as well,
which he did not mention, the buyer can return the property due to that defect,
and if he cannot return it, he can take the difference between the prices.
Laws of Partnership
1005. If two persons make an
agreement that they would trade with the goods jointly owned by them, and would
divide the profit between themselves, the partnership will be valid.
1006. If some person enter into a
partnership to share the wages from their labour, like, if a few barbers or
labourers agree mutually that they would divide between themselves whatever
wages they earn, that partnership is not in order. But if they enter into a
mutual compromise that, say, half of what one earns will be given to the other,
for a fixed period, in exchange of half of what the other earns, this
transaction will be valid, and thus each will be a partner in the wages of the
other.
1007. If two person enter into a
partnership, on the terms that each of them would purchase a commodity on his
own responsibility, and each would be responsible for the payment of its price,
but would share the profit which they earn of them makes the other will be a
partner in it, which means that he and his partner are responsible for the
debt, then they will be considered partners in that commodity.
1008. The persons who become
partners under the rules of partnership, must be adult and sane, and should
have intention and free volition for becoming partners. They should also be
able to exercise discretion over their properties. Hence, if a feeble-minded
person who spends his wealth impudently, enters into partnership, it is not
order, because such a person has no right of disposal over his property.
1009. If a condition is laid down
in an agreement of partnership, that the partner who manages, or does more work
than the other partner, or does more important work than the other, will get
larger share of the profit, it is necessary that he should be given his share
as agreed upon.
1010. Partnership has two kinds:
1. Partnership with permission, which occurs when the capital is jointly shared
by the partners before the deal of partnership is made. 2. Partnership with
exchange which establishes when either of the parties presents his property for
partnership, and then each of them exchanges half of his property with half of
the other party's property. If it is not specified as to which of the partners
will buy and sell with the capital, in the partnership of permission neither of
them can conclude any transcations with that capital withuot the permission of
the other. But in the partnership of exchange each of them can make transaction
in such a manner that the partnership is not harmed.
1011. The partner who has been
given the right of discretion over the capital, should act according to the
agreement of partnership. For example, if it or will purchase the property form
a particular place, he should act according to the agreement. However, if no
such agreement is made with him, he should conclude transactions in the usual
manner, and carry on in such a way that no loss is suffered in the partnership.
1012. If a partner who transacts
business with the capital of the partnership, sells and purchases things
contratly to the agreement made with him, or in the case of absence of any
agreement concludes transactions in a manner which is not nor mal, the
transaction made by him in both the cases will be correct and valid; but if
such a transaction results in a loss, or a part of wealth is squandered, then
the partner who has acted against the agreement or the usual norm, will be
responsible for the loss.
1013. If in a permission
partnership one of the partners dies, or becomes insane, or unconscious, other
partners cannot continue to exercise right of discretion over investment held
in the partnership. And the same rule applies when one of them becomes
feeble-minded, that is, spends his property without any consideration of
Sharian, as well as custon.
Orders Regarding Compromise (Sulh)
1014. Compromise means that a person agrees to give
to another person his own property or a part of the profit gained from it, or
waives or forgoes a debt, or some right, and that other person also gives him
in return, some property or profit from it, or waives
his debt or right in consideration of it; and even if a person gives or another
person his property to profit from it, or waives his debt or right without
claiming any consideration, the compromise will be in order.
1015. It is necessary that the person
who gives his property to another person by way of compromise, should be adult
and sane, and should have the intention of making compromise, and none should
have compelled him to make the compromise, and he should not also be
feeble-minded from whom his own wealth is made inaccessible, or a bankrupt who
has no right to dispose of his property.
1016. If a person wants to make a
compromise with another person in respect of the debt which he owes, or in
respect of his right, the compromise will be valid only if the opposite person
agrees to it. But, if he wants to faorgo the debt or right owed to him, the
acceptance by the opposite person is not necessary.
1017. If a debtor knows the amount
he owes, but the creditor does not know and makes compromise with the debtor
for an amount less than what is owed to him, like, if the creditor has to
receive $50 but he unknowingly makes a compromise for $10, the balance of $40
is not Åalàl for the debtor, except that he himself tells the creditor what he
actually owes him, and seeks his agreement. Alternatively, the debtor should be
sure that even if the creditors had known the exact amount of the debt, he
would have still settled for that lesser amount.
1018. As long as the buyer and the
seller do not leave the place where a transaction was concluded, they can
cancel the transaction. Also, if a buyer purchases an animal, he has the right
to cancel the transaction within three days. And similarly, if the buyer does
not pay within three days, for the commodity purchased by him, and dose not
take delivery of the commodity, the seller can cancel the transaction, as
stated in rule no. However, one who makes a compromise in respect of some property,
does not possess the right to cancel the compromise in these three cases.
However, if the other makes unusual delay in delivering the property over which
the compromise was reached, or if it has been stipulated that the property will
be delivered immediately, and the opposite party does not act according to this
condition, the compromise can be cancelled. And similarly, compromise can also
be cancelled in other cases which have been mentioned in connection with the
rules relating to purchase and sale, except in the case when one of the two
parties in compromise has been defrauded, in which the compromise can not be cancelled
if the compromise is for ending the quarrel; and even in other conditions, the
defrauded person cannot, as an obligatory precaution cancell the compromise.
1009. A compromise can be
cancelled if the thing received by means of compromise is defective. However,
it is a matter of Ishkal, if the person concerned desires to take the
difference of the price between the defective thing and the one without defect.
1020. If a person makes a
compromise with another person with his property and imposes the condition that
after his death the other person will, for example, make that property Mawqufah,
and that person also accepts this condition, he should carry it out.
Rules Regarding Lease/Rent
1021. The person who gives
something on lease, as well as the person who takes it on lease, should be
adult and sane, and should be acting on their free will. It is also necessary
that they should have the right of discretion over the property. Hence, a
feeble-minded person who does not have the right of disposal or discretion over
his property, his leasing out anything or taking anything on lease is not
valid. The same applies to a bankrupt person, in the wealth over which he has
no right of discretion. Of course, such a person can give himself for hire.
1022. If a person takes a house,
shop or room on lease, and the owner of the property imposed the condition that
only he (the lessee) can utilise it the lessee cannot sublet it to any other
person for his use, except that the new lease is such that its advantage
devolves on the lessee himself, like, if a woman takes a house or a room on
lease, and later marries, and gives the room or house on lease For her own
residence to her husband. And if the owner of the property does not impose any
such condition, the lessee can lease it out to another person, but, as a precaution,
he should seek the permission of the owner before giving it on lease. And if he
wishes to lease it out for a higher amount in cash or kind, he can do so, if he
has carried out some work on it, like, white washing or renovation, or if he
has suffered some expenses in looking after the property.
1023. If a person who is hired on
wages, lays down a condition that he will work for the hirer only, he (the
hirer) cannot lease out his service to another person, except in the manner
mentioned in the foregoing rule. And if the hired person does not lay down any
such condition, the hirer can lease out his services to another, but he cannot
charge more than the agreed wage for the hired person. Similarly, if he himself
accepts employment and then hires someone to do the task, he cannot pay him
less than what he will receive himself, unless he joins that hired person in
completing some of his work.
1024. If a person takes or hires
something other than a house, a shop, a room, a ship, or a hired person, say,
he hires a land on lease, and its owner does not lay down the condition that
only he himself can utilise it, and the lessee leases it out to another person
on a higher rent, it will be a matter of Ishkal.
1025. If a person takes for
example, a house or a shop on lease for one year, on a rent of one hundred
Toomans, and uses half portion of it himself, he can lease out the remaining
half for one hundred Toomans. However, if he wishes to lease out the half
portion on a rent higher than that on which he has taken the house, or shop on
lease, like, if he wishes to lease it out for hundred and twenty Toomans, he
can do it only if he has carried out repairs etc. in it.
Conditions Regarding the Property Given on lease
1026. The property which is given
on lease, should fulfil certain conditions:
(i) It should be specific. Hence,
if a person says to another, I have given you one of my houses on lease’, it is
not in order.
(ii) The person talking the
property on lease should see it, or the lessor should give its particulars in a
manner which gives full information necessary about it.
(iii) It should be possible to
deliver it. Hence, leasing out a horse which has run away, and the hirer can
not possess it, will be void. However, if the hirer can manage to get it, the
lease will be valid.
(iv) Utilisation of the property
should not be by way of its destruction or consumption. Hence, it is not
correct to give bread, fruits and other edibles on lease for the purpose of
eating.
(v) It should be possible to
utilise the property for the purpose for which it is given on lease. Hence, it
is not correct to give a piece of land on lease for farming, when it does not
get sufficient rain water, and is also not irrigated by cancel water.
(vi) The thing which a person
gives on lease should be his own property, and if he gives the property of
another person on lease, it will be correct only it its owner agrees to it.
Conditions for the Utilisation of the Property Given
on Lease
1027. The utilisation of the
property given on lease causes four conditions:
(i) That it should be Åalàl. Than
if a property is for Åaràm uses only, or it is stipulated that it should be
used for Åaràm purposes, or before concluding the contract the parties agree to
use it for Åaràm purposes, and the contract is based on that, the contract will
be void. Hence, leasing out a shop for the sale or storage of Alcoholic drinks,
or providing transportation by leasing for it, is void.
(ii) That doing the act or giving
that service free of charge should not be obligatory in the eyes of Shariah.
Therefore, as a precaution it is not permissible to receive wages for teaching
the rules of Åalàl and Åaràm, or for the last ritual services to the dead, like
washing it, shrouding atc.. And as a precaution paying money in lieu of the
services done should not be deemed futile in public.
(iii) If the thing which is being
leased out can be put to several uses, then the use permissible to the lessee
should be specified. For example, if an animal, which can be used for riding or
for carrying a load is given on hire, it should be specified at the time of
concluding the lease contract, whehther the lessee may use it for riding or for
carrying a load, or may use it for all other purposes.
(iv) The nature and extent of
utilisation should be specified. In the case of hiring a house or a shop, it
can be done by fixing the period, and in the case of labour, like that of a
tailor, it can specified that he will sew and stitch a particular dress in a particular
fashion.
1028. If the period of lease is
not specified, and the lessor says to the lessee, At any time you stay in the
house you will have to pay rent at the rate of $10 per month, the lease contract
is not in order.
1029. If the owner of a house says
to the lessee, `I have leased out this house to you for f10 per month`, or
says, ~I hereby lease out this house to you for one month on a rent of $10, and
as long as you stay in it thereafter the rent will be $10 per month ~, if the
time of the commencement of the period of lease was specified or it was known,
the lease for the first month will be proper.
Miscellaneous Rules Relating to Lease/Rent
1030. If a person has leased out
something, he cannot claim its rent until he has delivered it. And if a person
is hired to perform an act, he cannot claim wages until he has performed that
act, except in the cases where advance payment of wages is an accepted norm,
like deputyship for Åajj.
1031. If a lessor delivers the
leased property, the lessee should pay the rent, even if he may not take the
delivery, or may take the delivery but may not utilise it till the end of the
period of lease.
1032. If a person is hired to
perform a task on a particular day against wages, and gets ready on that day to
perform the task, the person who hired him should pay him the wages, even if he
may not assign that task to him. For example, if a tailor is hired to sew a
dress on a particular day, and he gets ready to do the work, the hirer should
pay him the wages even if he may not provide him with the cloth to sew,
irrespective of whether the tailor remains without work on that day or
alternatively does his own or somebody else's work.
1033. If it transpires after the
expiry of the period of lease, that the lease contract was void, the lessee
should give the usual rent of that thing to the owner of the property. For
example, if a person takes a house on lease for one year on a rent of $100, and
learns later that the lease contract was void, and if the normal current rent
of the house is $50,he should pay $50. And if its normal current rent is $200,
and the person who leased it out was its owner, or his agent, and was aware of
the current rate of rental, it is not necessary for the lessee to give him more
than $100. But if a person other than these gave it on lease, the lessee should
pay $200. And the same order applies, if it is known during the period of
lease, that the lease contract is void in relation to the outstanding rent for
the past period.
1034. If a thing taken by a person
on lease is lost, and if he has not been negligent in looking after it nor
extravagant in its use, he is not responsible for the loss. Also, if, for
example, a coth given to a tailor is damaged or destroyed, when the tailor has
not been extravegant, and has also not shown negligence in taking care of it,
he need make any replacement.
1035. If an artisan or a tailor
loses the thing taken by him, he is responsible for it.
1036 If a butcher cuts off the
head of an animal, and makes it Åaràm, he must pay its price to its owner,
regardless of whether he charged for slaughtering the animal or did it gratis.
1037. If a person circumcisesa
child, and as a consequence of it the child dies, or is injured, the person who
circumcises is responsible if he has been careless or made a mistake, like
having cut the flesh more than usual. However, if he was not careless, or did
not make any mistake, and the child dies due to circumcision, or sustains an
injury, he will not be responsible, provided that, he had not been consulted
earlier about the possible injury, nor was he aware that the child would be
injured.
1038. If a doctor gives medicines
to a patient with his own hands, or prescribes a medicine for him, and if the
patient sustains harm or dies because of taking that medicine, the doctor is
responsible, even if he had not been careless in treating the patient.
1039. If a doctor tells a patient,
~If you sustain harm I am not responsible’ ~, and then exercises due precaution
and care in the treatment, but the patient sustains harm or dies, the doctor is
not responsible.
1040. If the lessor or the lessee
realises that he has been cheated, if he did not notice at the time of making
the lease contract that he was being cheated, he can cancel the lease contract
as explained in the rule no. However, if a condition is laid down in the
contract of lease, that even if the parties are cheated, they will not be
entitled to cancel the contract, they cannot cancel it.
1041. If a person takes something
on lease, and during the period of lease it becomes so impaired that it is not
fit for the required use, the remaining lease contract will be void, and the
lessee can cancel the lease for the past period also. And for that period, he
may pay usual rent.
1042. If an employer appoints a
contractor to recruit labourers for him, and if the contractor pays the
labourers less than what he receives for them from the employer, the excess he
keeps is Åaràm for him and he should return it to the employer. And if the
contraetor is givena full contract aby complate a builiding, and is authorised
to either construct it himself or give a sub-contract to another party, if he
joins with the other party in doing some work, and then entrusting him to do
the remaining work against lower payment than what he has collected from the employer,
the surplus with him will be Åalàl for him.
Rules Regarding Ju`alah (Payment of Reward)
1043. Ju`alah means that a person
promises that if a particular work is completed for him, he will give a
specified amount for it. For example, he declares that if anyone recovers his
lost property, he will give him $10. One who makes such a declaration is called
Ja`il, and the person who carries out that work is called ~Amil~. one of the
differences between Ju`alah and hire is that, in the case of hire, the hired
person is bound to do the job after the agreement, and the hirer becomes
indebted to the hired person for his wages, whereas in the case of Ju`alah, the
person who agrees to do the job is at liberty to abandon it if he so wishes;
and before he compltes the job assigned, the person who declared the reward or
payment does not become indebted to him.
1044. A person who declares the
payment or reward should be adult and sane, and should have made it with his
free will and intention, and should have the right of disposal and discretion
over his property. Therefore, the declaration by a feeble-minded person who
squanders his property indiscreetly is not in order. Similarly, a bankrupt
cannot declare any reward or payment from that part of wealth over which he has
not right of discretion.
1045. The task for which the
declaration was made by the employer should not be Åaràm, futile, or one of
those obligatory acts which should necessarily be performed free according to
Shariah. Hence, if a person declares that he will give $10 to a person who
drinks alcohol, or traverses a dark passage at night without any sensible
purpose, or offers his obligatory prayers, the employment will not be in order.
1046. It is not necessary for the
employer for Ju`alah to specify the reward he would give with all its
particulars. If the employee, in this case, is certain that he would not be
taken for a stupid or foolish person if he undertook the assignment, it is sufficient.
For example, if the employer in Ju`alah tells a person that if he sells a
particular stock or goods for more than, say, ten dollars, whatever is the
excess will be his, this from of Ju`alah is valid. Similarly, if he says that
whosoever finds his horse, that person will own half of it, or that person will
be awarded ten kilos of wheat, Ju`alah will be in order.
1047. If a person does not at all
mention the amount of reward which he would give for his work for example, if
he says, ~I shall give money to the person who finds out my son ~, and does not
specify the amount of money, and if some one performs the task, he should pay
him according to what is customarily paid for such task.
1048. If the person wishes to
cancel the Ju`alah agreement after the employee has started work, it is a
matter of Ishkal, except when they come to an agreement.
1049. A person appointed to work
in Ju`alah can leave the task incomplete. However, if his failure to complete
the task causes harm to the person who appointed him, he must complete it. For
example, if a person says, 'If someone operates upon my eye I shall give him so
much money ', and a surgeon commences the operation, and if by not completing
the operation, the eye will be defective, he must complete it.
1050. If the person appointed to
work in Ju`alah leaves the task incomplete, he cannot demand any reward,
provided that the Ja`il declares the reward for completing the task, like when
he declares that if anyone sews his dress, he will pay him $10. But if he
meaned to pay some money for doing any part of the task, he should pay the
money for the part done.
Persons who Have No Right of Disposal or Discretion
Over Their Own Property
1051. A child who has not reached
the age of puberty (Bulugh), has no right of discretion over the property he
holds or owns, even if he is able to discren and is mature, and the previous
permission of his/her guardian does not apply in this case and the subsequent
permission is also a matter of Ishkal. However, in some cases a non-Bàligh is
allowed to make, a transaction, like when buying or selling things of small
worth as mentioned in rule. A girl becomes Bàlighah upon completion of her nine
lunar years, and a boy is Bàligh when stiff pubic hair grows, or when he
discharges semen, or as commonly held upon completion of fifteen lunar years.
1052. Growing of stiff hair on the
face and above the lips may be considered as signs of Bulugh, but their growth
on chest and under the armpits, and the voice becoming harsh etc. are not the
signs of one's reaching the age of puberty.
1053. An insane person has no
right of disposal over his property. Similarly, a bankrupt (i.e. a person who
has been prohibited by the Mujtahid to dispose of or have discretion on his
property because of the demands of his creditors) cannot dispose his property
without the permission of the creditors. And a feeble-minded person (Safih) who
squanders his property for useless purposes, has no right of disposal or
discretion over his property, without the permission of his guardain.
1054. If a person is sane at one
time and insane at another, the right of discretion exercised by him during his
lunacy will not be considered valid.
1055. A dying man in his terminal
illness can spend his own wealth on himself, on the members of his family, his
guests and on other things as much as he likes, provided that, it is not considered
to be extravagance on his part. Also, he can sell his property at its proper
value, or hire it. But if he gives away his property as gift, or sells it at a
lower price than usual, it will be valid only if the property gifted or sold
cheap is equal to or less than 1/3 of his estate. And if it is more, it will be
valid only if the heirs allow, and if they do not, then whatever he spent in
excess of 1/3 of his estate will be considered void.
Rules Regarding Agency (Wikalah)
1056. Wikalah means that a person
delegates somebody a task (like concluding a transaction), which he himself had
a right to do, so that the other person may perform it on his behalf. For
example, onemay appoint another person to act as one’s agent. For the sale of a
house, or for a marriage contract. Since a feeble-minded person does not have
right of discretion over his property, he cannot appoint an agent (Wakil) to
sell it.
1057. If a person appoints a
person in another city as his agent, and sends him power of attorney, and he
accepts it, the agency is in order, even order, even if the power of attorney
reaches the agent after some time.
1058. The Muwakkil (principal),
that is, the person who appoints another person as his Wakil (agent), as well
as the Wakil, should be sane, acting on their own volition and authority. And
the principal should be Bàligh, except in cases where a discerning child can
act.
1059. A person cannot become a
Wakil for an act which he cannot perform, or which is Åaràm for him to do. For
example, a person who is wearing Ihram for Åajj cannot recite the formule of
marriage as an agent for another person.
1060. If a person removes his agent
from office, he (the agent) cannot perform the task entrusted to him after the
news of his dismissal has reached him. However, if he has already performed the
task before the news of his dismissal reaches him, it will be in order.
1061. An agent can relinquish the
agency even if the principal is absent.
1062. An agent cannot appoint
another person as agent for the performance of the task entrusted to him,
except when the principal has authorised him to engage an agent. In that case,
he should strictly act according to the instructions. Hence, if the principal
has said to him, 'Engage an agent for me', he should engage an agent for the
principal and cannot appoint the agent on his own behalf.
1063. If the agent or the
principal dies, the agency becomes invalid. Similarly, if the thing for the
disposal of which one has appointed an agent perishes, for example, the sheep
which the agent was entrusted to sell, dies, the agency becomes invalid.
1064. If a person appoints someone
as agent to perform a task, and promises to give him something for his
services, he must give him the promised thing after the completion of the task.
1065. If an agent is not careless
in looking after the property entrusted to him, nor does he exercise such
discretion over it for which permission was not granted, and by chance the
property is lost or destroyed, it is not necessary for him to compensate for
it.
1066. If an agent has been
careless about looking after the property entrusted to him, or treated it in a
manner which was different from the one allowed by the principal, and consequently
the property is lost or destroyed, he is responsible for it. For example, if he
is given a dress to sell, and instead he wears it, and it is damaged, he should
pay compensation for it.
Rules Regarding Debt or Loan
1067. If a period is fixed for the
repayment of debt in the formal contract of debt by the debtor, or by mutual
agreement, the creditor cannot claim repayment of the debt before the expiry of
that period. But if it was stipulated by the creditor, or if no such period was
fixed, the creditor can demand the repayment of his debt at any time.
1068. When the creditor demands
his debt, and no time has been stipulated for its repayment or after the period
is expired, and the debtor is in a position to pay it, he should pay it immediately,
and if he delays its payment, he commits a sin.
1069. If the debtor does not
possess anything other than the house he occupies, the household effects, and
other things of essential needs, without which he would be facing hardship, the
creditor cannot claim the repayment from him. He should wait till the debtor is
in a position to repay the debt.
1070. If a person is indebted and
he is unable to repay his debt, and employment for him is easy, or if it has
been his vocation, it is obligatory upon him to do so in order to pay off the
debt. Even in other case, if he can do a business fit for him, as an obligatory
precaution, he should do it in order to repay his debt.
1071. If a person has no access to
his creditor, and does not hope to find him or his heirs, he should pay the
amount he owes, to the poor on behalf of the creditor. And as a precaution, he
should obtain permission for it from the Mujtahid. But if he hopes to find his
creditor or the heirs, he should wait and search for him/them. And if he does
not succeed, he should make a will stating that after his death, if the
creditor or the heirs appear, they should be paid from his eastate.
1072. If the estate of a dead
person does not exceed the obligatory expenses of his Kafn, burial and the
payment of his debt, his estate should be utilised for these purposes and his
heir will not inherit anything.
1073. If the property taken on
loan has not perished, and its owner demands it, it is not obligatory upon the
debtor to return it, and if the debtor wants to return it, the creditor can
avoid accepting it.
1074. If a person who advances a
loan, makes a condition that he will take back more than what he gives, for
example, he gives 3 kilos of wheat and stipulates that he will take back 3-5
kilos of wheat, or gives ten eggs and says that he will take back eleven eggs,
it will be usury and therefore Åaràm. Rather, if he stipulates that the debtor
should, apart from the repayment, do some work for him, or repay the loan along
with a quantity of another commodity (for example, if he lays down the
condition that the debtor will return one rupee owed along with a match box) it
will be usury and Åaràm. Also, if he stipulates that the debtor, will return
the thing loaned to him in a particular shape, e.g. if he gives him a quantity
of glod, and imposes the condition that he will take it back as golden or
naments, that too, is usury and Åaràm. However, if no condition is made by the
creditor, and the debtor himself decides to repay something more than what he
borrowed, there is no harm in it. In face, it is Mustahab to do so.
1075. To pay interest is Åaràm,
the same way as charging interest. However, if a person takes a loan against
interest, he becomes its owner, but the creditor does not become the owner of
the excess received by him, and discretion over it will be Åaràm, and if he
purchases some thing with that money, he will not become its owner. And if it
is known that thed ebtor would have allowed him the use of that money, even if
they would not have agreed on interest, then the creditor can exercise his discretion
over the money without any objection. Also if someone takes interest due to not
knowing the rule, and after knowing it he repents, the interest taken at the
time of ignorance will be Åalàl for him.
Rules Regarding Hawalah (Transferring the Debts
etc.)
1076. If a person gives a sum of
money to a merchant, so that he may get from him something less in another
city, there is no harm in it.
1077. If a person gives some money
to another person with the condition that after a few days, he will take a
larger amount from him in another city, or town, and if that currency is of
gold or silver or wheat or barley, the transaction is usury which is Åaràm. However,
if the person who is taking more amount gives some commodity against the excess
amount or performs some task, there is no harm in this arrangement. As for the
usual bank notes, which is classified as things to be counted, it is not
permissible to take more in exchange. But if it is sold cash or credit, and the
bank notes two apart units, like Tooman and Dinar, there is no harm if
something more is taken in exchange. And if a person sells bank notes on credit
basis, for more in return, and if they belong to the same classification of
commodity, it is a matter of Ishkal.
1078. If a person is owed by someone, and the thing owed is
not in the category of gold, silver or anything measured or weighed, he can
sell it to the debtor or anybody else for a lesser amount and realise the sum
in cash. On this basis, in the present times, a creditor can sell the bills of
exchange or the promissory notes received from debtor, to the bank, or any
other person, at a price lower than the amount due to him (which is called discounting
in common parlance) and can take the outstanding balance in cash, because
dealings with regard to common bank notes is not by weight or measure.
1079. If a debtor directs his creditor to collerct his debt
from the third person, and the creditor accepts the arrangement, the third
perso will, on completion of all the conditions to be explained later, become
the debtor. Thereafter, the cre ditor cannot demand his debt from the first
debtor.
1080. Inall cases of tranfers, one to whom it is assigned
should have accepted it, whe ther he is debtor or not.
1081. The creditor may decline to accept the transfer of
debt, al though the person in whose name the assignment has been given may be
rich, and may not fail to honour the Hawalah.
1082. If aperson accepting the Hawalah is not adebtor to the
person giving the Hawalah, he can demand the amount of the Hawalah from the
person who gave it, before honouring the Hawalah, unless it was previously
agreed that the payment would be deferred for a fixed period and that period
has not Iapsed, in this case, the person accepting the Hawalah cannot demand
payment even if he himse if may havehonoured the Hawalah-And if the creditor
compromises for a lesser amount, the person honouring the Hawalah should demand
only that sum which he paid.
1083. When the conditions of the transfer of debt have been
fulfilled, the person effecting the Hawalah and the person receiving it cannot
cancel the Hawalah, and if the person receiving the Hawalah was not poor at the
time the Hawalah was issued, the creditor cannot cancel the Hawalah even if the
recipient becomes poor afterwards. The same will apply if the recipient of the
Hawalah was poor ot the time it was issued, and the creditor knew about it. But
if the creditor did not know that the person to whom Hawalah has been issued is
poor, and when he comes to know of it, the recipient is still poor, then the
creditor cah abrogate the Hawalah transaction, and demand his money from the
debtor himself. But if the recipient of Hawalah has turned rich, then the right
of cancelling the Hawalah is a matter of Ishkal.
Rules Regarding Mortgage (Rahn)
1084. Mortgage means that a person
effects a conveyance of property to another person as security for money debt,
or property held under responsibility, with a provise that if that debt is not
paid, the creditor may pay himself out of the proceeds of that property.
(1). What is nowadays aommonly
called ~Rahn~ in Iran, is not realy Rahn. It is customary to give some money as
lean to the owner of the house in order to live in his house. But if this act
is without any rent, it will be usury and Åaràm, and the person cannot live in
it, and if it is with rent and leasing the house is a condition for giving the
loan, then it will be Åaràm, and if giving the loan is a condition for leasing
the house, as an obligatory precaution, it is not permissible.
1085. A person can mortgage that
property over which he has a right of disposal or discretion, and it is also in
order if he mortgages the property of another person with his permission.
1086. The benefit which accrues
from the mortgaged property, belongs to the owner, whether the mortgagor or any
other person.
1087. The mortgagee cannot present
or sell the mortgaged property to another person without the permission of the
owner, whether he is the mortgagor or any other person. However, if he presents
or sells it to another person, and the owner consents to it later, there is no
harm in it.
1088. If the creditor demands the
repayment of debt when it is due, and the debtor does not repay it, the
creditor can sell the mortgaged property and collect his dues, provided that he
had been authorised to do so. And if he was not authorised to do so, it will be
necessary to obtain permission from its owner. And if the owner is not
available, he should, as an obligatory precaution obtain permission for the
sale of the property from the Mujtahid. In either case, if the sale proceeds
exceed the amount due to him, he should give the amount in excess of his debt
to its owner.
1089. If the debtor does not
possess anything other than his house he occupies, and the essential household
effects, the creditor cannot demand the repayment of debt from him. But, if the
thing mortgaged by him is his house or its household effects, the creditor can
sell them and realise his dues.
Rules Regarding Surety (Dhaman)
1090. If a person wishes to stand
responsibility for the repayment of the debts of another person, his act in
this behalf will be in order, only when he makes the creditor understand by his
words in any language, or by conduct, that he undertakes the responsibility for
the repayment of the debt, and the creditor also accepts the deal. It is not
necessary that the debtor, too, should be agreeable. This act is established it
two ways:
1) That the guarantor transfers
the debt from the debtor's obligtaion to his own obligation. Then if he dies
before paying the debt, like other debts it will have priority to inheritance.
And this is the real –Daman- according to the jurisprudents.
2) That the guarantor under takes
to pay the debt but he is not obliged to pay it, and if he does not mention it
in his will, the debt cannot be paid from his estate.
1091. When a person gives a
guarsntee with a condition, as when he says, if the debtor does not repay your
debt, I shall pay it’, it is a matter as valld, according to the first
definition made in the previous rule. But it will be of no matter according to
the second definition.
1092. A man giving guarantee
should know that the person for whom he stands surety is actually a debtor. If
someone is still considering to take a loan, one cannot stand as his guarantor
till such time when the loan has been taken. However this condition is not
necessary for the second definition of Daman.
1093. If a person guarantees the
payment of the debt of a person, without obtaining his permission, he (the
surety) cannot demand anything from the debtor.
1094. If a person guarantees the
payment of debt with the permission of the debtor, he can demand that amount or
quantity from the debtor even before having paid anything to the creditor. But
if he paid, or delivered a commodity other than the one which was owed, he
cannot ask the debtor to pay or deliver to him that commodity. For example, if
the debtor owed 10 tons of wheat, and the guarantor settled the debt with 10
tons of rice, he can arrangement, in which case, there is no objection.
1095. If a person becomes a
guarantor for the payment of someone's debt, he cannot withdraw from his
responsibility as a guarantor.
1096. As a precaution, the
guarantor and the creditor cannot stipulate an option for cancellation of the
guarantor at any time they wish to do so.
Rules Regarding Personal Guarantee for Bail
(Kafalah)
1097.
Personal surety or security (kafalah) means that a person takes the
responsibility for the appearance of a debtor, as and when the creditor asks
for him. A person who accepts such a responsibility is called Kafil (guarantor).
1098. A
personal surety will be valid only when the guarantor makes the creditor
understand by words (in any language), or conduct, that he undertakes to
produce the debtor in person as and when demanded by the creditor, and the
creditor also accepts the arrangement. As a precaution, the debtor's consent is
also necessary for the validity of such a guarantee; in fact, as a matter of precaution,
both the debtor and the creditor must accept the Kafalah.
1099. Anyone of the following five
things will terminate the personal surety (bail guarantee):
(i) When the guarantor hands over the debtor to the
creditor, or if the debtor himself surrenders to the creditor.
(ii) When the debt of the creditor has been discharged.
(iii) When the creditor himself forgives the debt, or
transfers it to semeone alse.
(iv) When the debtor or the guarantor dies.
(v) When the creditor absolves the guarantor from his
personal surety.
Rules Regarding Deposit or Custody or Trust
(Wadi`ah)
1100. When a person gives his
property to another person, and tells him that,it is deposited in trust, and
the latter accepts it, or, without uttering a word, by a simple conduct, the
depositor and the receiver both understand and accept the intention, then they
must follow the rules of Wadi`ah as will be explained later.
1101. If a person accepts a
deposit from a child without the permission of its owner, he should return it
to its owner. And if that deposit belongs to the child himself, it is necessary
that it is delivered to his guardian; and if it gets lost or destroyed before
the delivery, the person who accepted the deposit must compensate for it. But
if he had secured it from the child with the intention of delivering it to the
guardian, and if he had not been careless in its safekeeping nor he had
exercised such discretion over it for which permission had not been granted, he
will not be responsible for a loss or a damage. The same rule will apply in the
case of an insane depositor.
1102. If
a person makes the owner of the property understand that he is not prepared to
look after his property, and does not accept it, yet the owner leaves it there
and goes away, and then the property perishes, the person who has declined to
accept the deposit will not be responsible for it.
1103. If a person renounces the
custody of the property deposited with him and abrogates the arrangement, he
should deliver the property to its owner or to the agent or guardian of its
owner, as quickly as possible, or inform them that he is not prepared to
continue as a custodian. But if he does not, without any justifiable excuse,
deliver the property to them and also does not inform them, and the property
perishes, he should give its substitute.
1104. If a person who accepts a
deposit does not have asuitable place for its safe keeping, he should acquire
such a place, and should take care of the deposit in a manner that he would not
be accused of negligence. And if he acts carelessly in this regard, and the
property is lost or damaged, he will have to compensate for it.
1105. If a person who accepts a
deposit has not been negligent in looking after it, nor has he gone beyond
moderation, and then the property unexpectedly perishes, he will not be responsible
for it. But if he has been careless about its security, say, by keeping it at a
place which is vulnerable to theft, or if he commits such excesses like using
those articles of deposit without the owner's permission (like wearing the
dress or riding the vehicle or the animal etc.) and then the deposited property
is lost or damaged, he should pay the owner its compensation.
1106. If the owner of the deposit
dies, and it devolves upon his heirs, the trustee of the deposit should give
the property to all the heirs, or to the person who has been authorised by all
of them to receive the property. Hence, if he gives the entire property to one
heir without the consent of others, he will be responsible for the shares of
the remaining heirs.
1107. If a person with whom a
property has been deposited, observes in himself the signs of approaching
death, as a precaution he should, if possible, deliver the deposit entrusted to
him to its owner, his guardian or his agent, or inform him. And if it is not
possible to do so, he should make such arrangement which would satisfy him that
the deposit would reach its rightful owner after his death. For example, he
should make a will about it, attested by witnesses, and give the name of the depositor
to the executor of his will and to the witness, describing fully the nature of
the deposit, and the place where it is kept.
1108. If a person with whom a
property has been deposited, wishes to go to a journey, he can give the deposit
to his family's members to keep it safe. But if keeping the deposit needs his
own presence, he should either stay, or deliver it to its owner, his guardian
or his agent, or inform him.
Rules Regarding Borrowing and Lending (Ariyah)
1109. Ariyah means that a person
gives his property to another person for use in permission ways.
1110. If a person who has borrowed
something is not negligent in its keep, nor does he go beyond moderation in its
use, he will not be responsible if it is lost or damage by chance. However, if
the two parties stipulate that, the borrower would be responsible for loss or
damage, or if the thing borrowed is gold or silver and it is lost or damaged,
the borrower should compensate for it.
1111. If a person borrows gold
silver and stipulates that if it is lost or damaged, he will not be
responsible, he is not responsible if it is lost.
Circumstance in Which One Has a Right to Cancel a Transaction
998. The right to cancel a transaction is called Khiyar (option to cancel a transaction). The seller and the buyer can cancel a transaction in the following ten cases: (i) If the parties to the transaction have not parted from each other, though they may have left the place of agreement. This is called Khiyar-ul-Majlis. (ii) If the buyer or the seller has been cheated in a sale transaction, or in any other sort of deal either of the parties has been deceived, they have a right to call off the deal. This is called Khiyar-ul-Ghabn. (iii) If while entering into a transaction, it is agreed that up to a stipulated time, one or both the parties will be entitled to cancel the transaction. This is called Khiyaru-sh-Shart. (iv) If one of the parties presents his commodity as better than it actually is, and thereby attracts the buyer, or makes him more enthusiastic about it. This is called Khiyar-ut-Tadlis. (v) If one of the parties to the transaction stipulates that the other would perform a certain jod, and that condition is not fulfilled. Or if it is stipulated that the commodity will be of particular quality, and the commodity supplied may be lacking in that quality. In these cases, the party which laid the condition can cancel the transaction. This is called Khiyaru Takhalluf-ish-Shart. (vi) If the commodity supplied is defective. This is called Khiyar-ul-Ayb. (vii) If it transpires that a quality of the commodity under transaction is the property of a third person. In that case, if the owner of that part is not willing to sell it, the buyer can cancel the transaction, or can claim back from the seller the replacement of that part, if he has already paid for it. This is called Khiyar-ush-Shirkah. (viii) If the owner describes certain qualities of his commodity which the buyer has not seen, and then the buyer realises that the commodity is not as it was described, the buyer can rescind the deal. Simlarly, if the buyer may have seen the commodity something back, and purchases it, thinking that the qualities it had then will be still existing, and if he finds that those qualities have disappeared, he has a right to cancel the deal. This is called Khiyar-ur-Ru'yan. (ix) If the buyer does not pay for the commodity he has bought for three days, and the seller has not yet handed over to him the commodity, the seller can cancel the transaction. But this is in the circmstance when the seller had agreed to allow him time for deferred payment, without fixing the period. And if the seller had not at all agreed on deferred payment, he can cancel the transaction at once, without any delay. And if he had allowed him more than three days credit, then the seller cannot rescind, the deal before the termination of three days. if the commodity is perishable like fruits, which would perish or decay in less than three days, the respite is less. This is called Khiyar-ut-Ta'khir. (x) A person who buys an animal, can cancel the transaction within three days. And if a person sold his commodity in exchange for an animal, he can also cancel the transaction withing three days. This is called Khiyar-ul-ayawan. 999. If a buyer not know the price of the commodity, or was unconcerned about it at the time of purchase, and buys the thing for higher than usual price, he can cancel the transaction if the difference of price is substantial, and if the difference is established at the time of abrigation. Otherwise, the buyer cannot cancel the deal as a precaution. Similarly, if the seller does not know the price of the commodity, or was heedless about it at the time of selling, and sells the thing at a cheaper price, he can cancel the deal if the differen is substantial and if other conditions mentioned above obtain. 1000. In a transaction of conditional sale, for example, a house worth $2000 is sold for $1000, and it is agreed that if the seller returns the money within a stip ulated period, he can cancel the transaction, the transaction, the is in order, provided that the buyer and the seller had genuine intention of purchase and sale. 1001. In a transaction of conditional sale, if the seller is sure that even if he did not return the money within the stipulated time, the buyer will return the property to him, the transaction is in order. However, if he does not return the money within the stipulated time, he is not entitled to dement the return of the property from the buyer. And if the buyer dies, he (the seller) cannot dement the return of the property from his heirs. 1002. If a person mixes in demand the ferior tea with superior tea, and sells it as a superior tea .buyer can cancel the transaction. 1003. If a buyer finds out that the thing purchased by him is defective, like, if he purchases an animal and finds that (after purchasing it) it is blind of an eye, and this defect existed before the transaction was made, but he was not aware of it, he can cancel the transaction and return the animal to the seller. And if it is not possible to return it, for example, if some change has taken place in it, or it has been used in such a manner that it cannot be returned, the difference between the value of the sound property and the defective property should be assessed, and the buyer should get refund in that prortion of the amount paid by him to the seller. For example, he has purchased something for $4 and finds out that it is defective. Now the price of the thing in perfect faultless state is $8 and that of deficient is $6, the difference between these two prices will be assessed at 25%. The buyer will be paid 25% of what he actually paid, and that will be one dollar. 1004. In the following two cases the buyer cannot cancel the transaction because of defect in the property purchases by him, nor can he claim the difference between the prices: (i) If at the time of purchasing the property, he is aware of the defect in it. (ii) If at the time of concluding the contract, the seller says, I sell this property with whatever defect it may have. But, if he specifies a defect and says, I am selling this property with this defect, and it transpires later that it has some other defect as well, which he did not mention, the buyer can return the property due to that defect, and if he cannot return it, he can take the difference between the prices.Laws of Partnership
1005. If two persons make an agreement that they would trade with the goods jointly owned by them, and would divide the profit between themselves, the partnership will be valid. 1006. If some person enter into a partnership to share the wages from their labour, like, if a few barbers or labourers agree mutually that they would divide between themselves whatever wages they earn, that partnership is not in order. But if they enter into a mutual compromise that, say, half of what one earns will be given to the other, for a fixed period, in exchange of half of what the other earns, this transaction will be valid, and thus each will be a partner in the wages of the other. 1007. If two person enter into a partnership, on the terms that each of them would purchase a commodity on his own responsibility, and each would be responsible for the payment of its price, but would share the profit which they earn of them makes the other will be a partner in it, which means that he and his partner are responsible for the debt, then they will be considered partners in that commodity. 1008. The persons who become partners under the rules of partnership, must be adult and sane, and should have intention and free volition for becoming partners. They should also be able to exercise discretion over their properties. Hence, if a feeble-minded person who spends his wealth impudently, enters into partnership, it is not order, because such a person has no right of disposal over his property. 1009. If a condition is laid down in an agreement of partnership, that the partner who manages, or does more work than the other partner, or does more important work than the other, will get larger share of the profit, it is necessary that he should be given his share as agreed upon. 1010. Partnership has two kinds: 1. Partnership with permission, which occurs when the capital is jointly shared by the partners before the deal of partnership is made. 2. Partnership with exchange which establishes when either of the parties presents his property for partnership, and then each of them exchanges half of his property with half of the other party's property. If it is not specified as to which of the partners will buy and sell with the capital, in the partnership of permission neither of them can conclude any transcations with that capital withuot the permission of the other. But in the partnership of exchange each of them can make transaction in such a manner that the partnership is not harmed. 1011. The partner who has been given the right of discretion over the capital, should act according to the agreement of partnership. For example, if it or will purchase the property form a particular place, he should act according to the agreement. However, if no such agreement is made with him, he should conclude transactions in the usual manner, and carry on in such a way that no loss is suffered in the partnership. 1012. If a partner who transacts business with the capital of the partnership, sells and purchases things contratly to the agreement made with him, or in the case of absence of any agreement concludes transactions in a manner which is not nor mal, the transaction made by him in both the cases will be correct and valid; but if such a transaction results in a loss, or a part of wealth is squandered, then the partner who has acted against the agreement or the usual norm, will be responsible for the loss. 1013. If in a permission partnership one of the partners dies, or becomes insane, or unconscious, other partners cannot continue to exercise right of discretion over investment held in the partnership. And the same rule applies when one of them becomes feeble-minded, that is, spends his property without any consideration of Sharian, as well as custon.Orders Regarding Compromise (Sulh)
1014. Compromise means that a person agrees to give to another person his own property or a part of the profit gained from it, or waives or forgoes a debt, or some right, and that other person also gives him in return, some property or profit from it, or waives his debt or right in consideration of it; and even if a person gives or another person his property to profit from it, or waives his debt or right without claiming any consideration, the compromise will be in order. 1015. It is necessary that the person who gives his property to another person by way of compromise, should be adult and sane, and should have the intention of making compromise, and none should have compelled him to make the compromise, and he should not also be feeble-minded from whom his own wealth is made inaccessible, or a bankrupt who has no right to dispose of his property. 1016. If a person wants to make a compromise with another person in respect of the debt which he owes, or in respect of his right, the compromise will be valid only if the opposite person agrees to it. But, if he wants to faorgo the debt or right owed to him, the acceptance by the opposite person is not necessary. 1017. If a debtor knows the amount he owes, but the creditor does not know and makes compromise with the debtor for an amount less than what is owed to him, like, if the creditor has to receive $50 but he unknowingly makes a compromise for $10, the balance of $40 is not Åalàl for the debtor, except that he himself tells the creditor what he actually owes him, and seeks his agreement. Alternatively, the debtor should be sure that even if the creditors had known the exact amount of the debt, he would have still settled for that lesser amount. 1018. As long as the buyer and the seller do not leave the place where a transaction was concluded, they can cancel the transaction. Also, if a buyer purchases an animal, he has the right to cancel the transaction within three days. And similarly, if the buyer does not pay within three days, for the commodity purchased by him, and dose not take delivery of the commodity, the seller can cancel the transaction, as stated in rule no. However, one who makes a compromise in respect of some property, does not possess the right to cancel the compromise in these three cases. However, if the other makes unusual delay in delivering the property over which the compromise was reached, or if it has been stipulated that the property will be delivered immediately, and the opposite party does not act according to this condition, the compromise can be cancelled. And similarly, compromise can also be cancelled in other cases which have been mentioned in connection with the rules relating to purchase and sale, except in the case when one of the two parties in compromise has been defrauded, in which the compromise can not be cancelled if the compromise is for ending the quarrel; and even in other conditions, the defrauded person cannot, as an obligatory precaution cancell the compromise. 1009. A compromise can be cancelled if the thing received by means of compromise is defective. However, it is a matter of Ishkal, if the person concerned desires to take the difference of the price between the defective thing and the one without defect. 1020. If a person makes a compromise with another person with his property and imposes the condition that after his death the other person will, for example, make that property Mawqufah, and that person also accepts this condition, he should carry it out.Rules Regarding Lease/Rent
1021. The person who gives something on lease, as well as the person who takes it on lease, should be adult and sane, and should be acting on their free will. It is also necessary that they should have the right of discretion over the property. Hence, a feeble-minded person who does not have the right of disposal or discretion over his property, his leasing out anything or taking anything on lease is not valid. The same applies to a bankrupt person, in the wealth over which he has no right of discretion. Of course, such a person can give himself for hire. 1022. If a person takes a house, shop or room on lease, and the owner of the property imposed the condition that only he (the lessee) can utilise it the lessee cannot sublet it to any other person for his use, except that the new lease is such that its advantage devolves on the lessee himself, like, if a woman takes a house or a room on lease, and later marries, and gives the room or house on lease For her own residence to her husband. And if the owner of the property does not impose any such condition, the lessee can lease it out to another person, but, as a precaution, he should seek the permission of the owner before giving it on lease. And if he wishes to lease it out for a higher amount in cash or kind, he can do so, if he has carried out some work on it, like, white washing or renovation, or if he has suffered some expenses in looking after the property. 1023. If a person who is hired on wages, lays down a condition that he will work for the hirer only, he (the hirer) cannot lease out his service to another person, except in the manner mentioned in the foregoing rule. And if the hired person does not lay down any such condition, the hirer can lease out his services to another, but he cannot charge more than the agreed wage for the hired person. Similarly, if he himself accepts employment and then hires someone to do the task, he cannot pay him less than what he will receive himself, unless he joins that hired person in completing some of his work. 1024. If a person takes or hires something other than a house, a shop, a room, a ship, or a hired person, say, he hires a land on lease, and its owner does not lay down the condition that only he himself can utilise it, and the lessee leases it out to another person on a higher rent, it will be a matter of Ishkal. 1025. If a person takes for example, a house or a shop on lease for one year, on a rent of one hundred Toomans, and uses half portion of it himself, he can lease out the remaining half for one hundred Toomans. However, if he wishes to lease out the half portion on a rent higher than that on which he has taken the house, or shop on lease, like, if he wishes to lease it out for hundred and twenty Toomans, he can do it only if he has carried out repairs etc. in it.Conditions Regarding the Property Given on lease
1026. The property which is given on lease, should fulfil certain conditions: (i) It should be specific. Hence, if a person says to another, I have given you one of my houses on lease’, it is not in order. (ii) The person talking the property on lease should see it, or the lessor should give its particulars in a manner which gives full information necessary about it. (iii) It should be possible to deliver it. Hence, leasing out a horse which has run away, and the hirer can not possess it, will be void. However, if the hirer can manage to get it, the lease will be valid. (iv) Utilisation of the property should not be by way of its destruction or consumption. Hence, it is not correct to give bread, fruits and other edibles on lease for the purpose of eating. (v) It should be possible to utilise the property for the purpose for which it is given on lease. Hence, it is not correct to give a piece of land on lease for farming, when it does not get sufficient rain water, and is also not irrigated by cancel water. (vi) The thing which a person gives on lease should be his own property, and if he gives the property of another person on lease, it will be correct only it its owner agrees to it.Conditions for the Utilisation of the Property Given on Lease
1027. The utilisation of the property given on lease causes four conditions: (i) That it should be Åalàl. Than if a property is for Åaràm uses only, or it is stipulated that it should be used for Åaràm purposes, or before concluding the contract the parties agree to use it for Åaràm purposes, and the contract is based on that, the contract will be void. Hence, leasing out a shop for the sale or storage of Alcoholic drinks, or providing transportation by leasing for it, is void. (ii) That doing the act or giving that service free of charge should not be obligatory in the eyes of Shariah. Therefore, as a precaution it is not permissible to receive wages for teaching the rules of Åalàl and Åaràm, or for the last ritual services to the dead, like washing it, shrouding atc.. And as a precaution paying money in lieu of the services done should not be deemed futile in public. (iii) If the thing which is being leased out can be put to several uses, then the use permissible to the lessee should be specified. For example, if an animal, which can be used for riding or for carrying a load is given on hire, it should be specified at the time of concluding the lease contract, whehther the lessee may use it for riding or for carrying a load, or may use it for all other purposes. (iv) The nature and extent of utilisation should be specified. In the case of hiring a house or a shop, it can be done by fixing the period, and in the case of labour, like that of a tailor, it can specified that he will sew and stitch a particular dress in a particular fashion. 1028. If the period of lease is not specified, and the lessor says to the lessee, At any time you stay in the house you will have to pay rent at the rate of $10 per month, the lease contract is not in order. 1029. If the owner of a house says to the lessee, `I have leased out this house to you for f10 per month`, or says, ~I hereby lease out this house to you for one month on a rent of $10, and as long as you stay in it thereafter the rent will be $10 per month ~, if the time of the commencement of the period of lease was specified or it was known, the lease for the first month will be proper.Miscellaneous Rules Relating to Lease/Rent
1030. If a person has leased out something, he cannot claim its rent until he has delivered it. And if a person is hired to perform an act, he cannot claim wages until he has performed that act, except in the cases where advance payment of wages is an accepted norm, like deputyship for Åajj. 1031. If a lessor delivers the leased property, the lessee should pay the rent, even if he may not take the delivery, or may take the delivery but may not utilise it till the end of the period of lease. 1032. If a person is hired to perform a task on a particular day against wages, and gets ready on that day to perform the task, the person who hired him should pay him the wages, even if he may not assign that task to him. For example, if a tailor is hired to sew a dress on a particular day, and he gets ready to do the work, the hirer should pay him the wages even if he may not provide him with the cloth to sew, irrespective of whether the tailor remains without work on that day or alternatively does his own or somebody else's work. 1033. If it transpires after the expiry of the period of lease, that the lease contract was void, the lessee should give the usual rent of that thing to the owner of the property. For example, if a person takes a house on lease for one year on a rent of $100, and learns later that the lease contract was void, and if the normal current rent of the house is $50,he should pay $50. And if its normal current rent is $200, and the person who leased it out was its owner, or his agent, and was aware of the current rate of rental, it is not necessary for the lessee to give him more than $100. But if a person other than these gave it on lease, the lessee should pay $200. And the same order applies, if it is known during the period of lease, that the lease contract is void in relation to the outstanding rent for the past period. 1034. If a thing taken by a person on lease is lost, and if he has not been negligent in looking after it nor extravagant in its use, he is not responsible for the loss. Also, if, for example, a coth given to a tailor is damaged or destroyed, when the tailor has not been extravegant, and has also not shown negligence in taking care of it, he need make any replacement. 1035. If an artisan or a tailor loses the thing taken by him, he is responsible for it. 1036 If a butcher cuts off the head of an animal, and makes it Åaràm, he must pay its price to its owner, regardless of whether he charged for slaughtering the animal or did it gratis. 1037. If a person circumcisesa child, and as a consequence of it the child dies, or is injured, the person who circumcises is responsible if he has been careless or made a mistake, like having cut the flesh more than usual. However, if he was not careless, or did not make any mistake, and the child dies due to circumcision, or sustains an injury, he will not be responsible, provided that, he had not been consulted earlier about the possible injury, nor was he aware that the child would be injured. 1038. If a doctor gives medicines to a patient with his own hands, or prescribes a medicine for him, and if the patient sustains harm or dies because of taking that medicine, the doctor is responsible, even if he had not been careless in treating the patient. 1039. If a doctor tells a patient, ~If you sustain harm I am not responsible’ ~, and then exercises due precaution and care in the treatment, but the patient sustains harm or dies, the doctor is not responsible. 1040. If the lessor or the lessee realises that he has been cheated, if he did not notice at the time of making the lease contract that he was being cheated, he can cancel the lease contract as explained in the rule no. However, if a condition is laid down in the contract of lease, that even if the parties are cheated, they will not be entitled to cancel the contract, they cannot cancel it. 1041. If a person takes something on lease, and during the period of lease it becomes so impaired that it is not fit for the required use, the remaining lease contract will be void, and the lessee can cancel the lease for the past period also. And for that period, he may pay usual rent. 1042. If an employer appoints a contractor to recruit labourers for him, and if the contractor pays the labourers less than what he receives for them from the employer, the excess he keeps is Åaràm for him and he should return it to the employer. And if the contraetor is givena full contract aby complate a builiding, and is authorised to either construct it himself or give a sub-contract to another party, if he joins with the other party in doing some work, and then entrusting him to do the remaining work against lower payment than what he has collected from the employer, the surplus with him will be Åalàl for him.Rules Regarding Ju`alah (Payment of Reward)
1043. Ju`alah means that a person promises that if a particular work is completed for him, he will give a specified amount for it. For example, he declares that if anyone recovers his lost property, he will give him $10. One who makes such a declaration is called Ja`il, and the person who carries out that work is called ~Amil~. one of the differences between Ju`alah and hire is that, in the case of hire, the hired person is bound to do the job after the agreement, and the hirer becomes indebted to the hired person for his wages, whereas in the case of Ju`alah, the person who agrees to do the job is at liberty to abandon it if he so wishes; and before he compltes the job assigned, the person who declared the reward or payment does not become indebted to him. 1044. A person who declares the payment or reward should be adult and sane, and should have made it with his free will and intention, and should have the right of disposal and discretion over his property. Therefore, the declaration by a feeble-minded person who squanders his property indiscreetly is not in order. Similarly, a bankrupt cannot declare any reward or payment from that part of wealth over which he has not right of discretion. 1045. The task for which the declaration was made by the employer should not be Åaràm, futile, or one of those obligatory acts which should necessarily be performed free according to Shariah. Hence, if a person declares that he will give $10 to a person who drinks alcohol, or traverses a dark passage at night without any sensible purpose, or offers his obligatory prayers, the employment will not be in order. 1046. It is not necessary for the employer for Ju`alah to specify the reward he would give with all its particulars. If the employee, in this case, is certain that he would not be taken for a stupid or foolish person if he undertook the assignment, it is sufficient. For example, if the employer in Ju`alah tells a person that if he sells a particular stock or goods for more than, say, ten dollars, whatever is the excess will be his, this from of Ju`alah is valid. Similarly, if he says that whosoever finds his horse, that person will own half of it, or that person will be awarded ten kilos of wheat, Ju`alah will be in order. 1047. If a person does not at all mention the amount of reward which he would give for his work for example, if he says, ~I shall give money to the person who finds out my son ~, and does not specify the amount of money, and if some one performs the task, he should pay him according to what is customarily paid for such task. 1048. If the person wishes to cancel the Ju`alah agreement after the employee has started work, it is a matter of Ishkal, except when they come to an agreement. 1049. A person appointed to work in Ju`alah can leave the task incomplete. However, if his failure to complete the task causes harm to the person who appointed him, he must complete it. For example, if a person says, 'If someone operates upon my eye I shall give him so much money ', and a surgeon commences the operation, and if by not completing the operation, the eye will be defective, he must complete it. 1050. If the person appointed to work in Ju`alah leaves the task incomplete, he cannot demand any reward, provided that the Ja`il declares the reward for completing the task, like when he declares that if anyone sews his dress, he will pay him $10. But if he meaned to pay some money for doing any part of the task, he should pay the money for the part done.Persons who Have No Right of Disposal or Discretion Over Their Own Property
1051. A child who has not reached the age of puberty (Bulugh), has no right of discretion over the property he holds or owns, even if he is able to discren and is mature, and the previous permission of his/her guardian does not apply in this case and the subsequent permission is also a matter of Ishkal. However, in some cases a non-Bàligh is allowed to make, a transaction, like when buying or selling things of small worth as mentioned in rule. A girl becomes Bàlighah upon completion of her nine lunar years, and a boy is Bàligh when stiff pubic hair grows, or when he discharges semen, or as commonly held upon completion of fifteen lunar years. 1052. Growing of stiff hair on the face and above the lips may be considered as signs of Bulugh, but their growth on chest and under the armpits, and the voice becoming harsh etc. are not the signs of one's reaching the age of puberty. 1053. An insane person has no right of disposal over his property. Similarly, a bankrupt (i.e. a person who has been prohibited by the Mujtahid to dispose of or have discretion on his property because of the demands of his creditors) cannot dispose his property without the permission of the creditors. And a feeble-minded person (Safih) who squanders his property for useless purposes, has no right of disposal or discretion over his property, without the permission of his guardain. 1054. If a person is sane at one time and insane at another, the right of discretion exercised by him during his lunacy will not be considered valid. 1055. A dying man in his terminal illness can spend his own wealth on himself, on the members of his family, his guests and on other things as much as he likes, provided that, it is not considered to be extravagance on his part. Also, he can sell his property at its proper value, or hire it. But if he gives away his property as gift, or sells it at a lower price than usual, it will be valid only if the property gifted or sold cheap is equal to or less than 1/3 of his estate. And if it is more, it will be valid only if the heirs allow, and if they do not, then whatever he spent in excess of 1/3 of his estate will be considered void.Rules Regarding Agency (Wikalah)
1056. Wikalah means that a person delegates somebody a task (like concluding a transaction), which he himself had a right to do, so that the other person may perform it on his behalf. For example, onemay appoint another person to act as one’s agent. For the sale of a house, or for a marriage contract. Since a feeble-minded person does not have right of discretion over his property, he cannot appoint an agent (Wakil) to sell it. 1057. If a person appoints a person in another city as his agent, and sends him power of attorney, and he accepts it, the agency is in order, even order, even if the power of attorney reaches the agent after some time. 1058. The Muwakkil (principal), that is, the person who appoints another person as his Wakil (agent), as well as the Wakil, should be sane, acting on their own volition and authority. And the principal should be Bàligh, except in cases where a discerning child can act. 1059. A person cannot become a Wakil for an act which he cannot perform, or which is Åaràm for him to do. For example, a person who is wearing Ihram for Åajj cannot recite the formule of marriage as an agent for another person. 1060. If a person removes his agent from office, he (the agent) cannot perform the task entrusted to him after the news of his dismissal has reached him. However, if he has already performed the task before the news of his dismissal reaches him, it will be in order. 1061. An agent can relinquish the agency even if the principal is absent. 1062. An agent cannot appoint another person as agent for the performance of the task entrusted to him, except when the principal has authorised him to engage an agent. In that case, he should strictly act according to the instructions. Hence, if the principal has said to him, 'Engage an agent for me', he should engage an agent for the principal and cannot appoint the agent on his own behalf. 1063. If the agent or the principal dies, the agency becomes invalid. Similarly, if the thing for the disposal of which one has appointed an agent perishes, for example, the sheep which the agent was entrusted to sell, dies, the agency becomes invalid. 1064. If a person appoints someone as agent to perform a task, and promises to give him something for his services, he must give him the promised thing after the completion of the task. 1065. If an agent is not careless in looking after the property entrusted to him, nor does he exercise such discretion over it for which permission was not granted, and by chance the property is lost or destroyed, it is not necessary for him to compensate for it. 1066. If an agent has been careless about looking after the property entrusted to him, or treated it in a manner which was different from the one allowed by the principal, and consequently the property is lost or destroyed, he is responsible for it. For example, if he is given a dress to sell, and instead he wears it, and it is damaged, he should pay compensation for it.Rules Regarding Debt or Loan
1067. If a period is fixed for the repayment of debt in the formal contract of debt by the debtor, or by mutual agreement, the creditor cannot claim repayment of the debt before the expiry of that period. But if it was stipulated by the creditor, or if no such period was fixed, the creditor can demand the repayment of his debt at any time. 1068. When the creditor demands his debt, and no time has been stipulated for its repayment or after the period is expired, and the debtor is in a position to pay it, he should pay it immediately, and if he delays its payment, he commits a sin. 1069. If the debtor does not possess anything other than the house he occupies, the household effects, and other things of essential needs, without which he would be facing hardship, the creditor cannot claim the repayment from him. He should wait till the debtor is in a position to repay the debt. 1070. If a person is indebted and he is unable to repay his debt, and employment for him is easy, or if it has been his vocation, it is obligatory upon him to do so in order to pay off the debt. Even in other case, if he can do a business fit for him, as an obligatory precaution, he should do it in order to repay his debt. 1071. If a person has no access to his creditor, and does not hope to find him or his heirs, he should pay the amount he owes, to the poor on behalf of the creditor. And as a precaution, he should obtain permission for it from the Mujtahid. But if he hopes to find his creditor or the heirs, he should wait and search for him/them. And if he does not succeed, he should make a will stating that after his death, if the creditor or the heirs appear, they should be paid from his eastate. 1072. If the estate of a dead person does not exceed the obligatory expenses of his Kafn, burial and the payment of his debt, his estate should be utilised for these purposes and his heir will not inherit anything. 1073. If the property taken on loan has not perished, and its owner demands it, it is not obligatory upon the debtor to return it, and if the debtor wants to return it, the creditor can avoid accepting it. 1074. If a person who advances a loan, makes a condition that he will take back more than what he gives, for example, he gives 3 kilos of wheat and stipulates that he will take back 3-5 kilos of wheat, or gives ten eggs and says that he will take back eleven eggs, it will be usury and therefore Åaràm. Rather, if he stipulates that the debtor should, apart from the repayment, do some work for him, or repay the loan along with a quantity of another commodity (for example, if he lays down the condition that the debtor will return one rupee owed along with a match box) it will be usury and Åaràm. Also, if he stipulates that the debtor, will return the thing loaned to him in a particular shape, e.g. if he gives him a quantity of glod, and imposes the condition that he will take it back as golden or naments, that too, is usury and Åaràm. However, if no condition is made by the creditor, and the debtor himself decides to repay something more than what he borrowed, there is no harm in it. In face, it is Mustahab to do so. 1075. To pay interest is Åaràm, the same way as charging interest. However, if a person takes a loan against interest, he becomes its owner, but the creditor does not become the owner of the excess received by him, and discretion over it will be Åaràm, and if he purchases some thing with that money, he will not become its owner. And if it is known that thed ebtor would have allowed him the use of that money, even if they would not have agreed on interest, then the creditor can exercise his discretion over the money without any objection. Also if someone takes interest due to not knowing the rule, and after knowing it he repents, the interest taken at the time of ignorance will be Åalàl for him.Rules Regarding Hawalah (Transferring the Debts etc.)
1076. If a person gives a sum of money to a merchant, so that he may get from him something less in another city, there is no harm in it. 1077. If a person gives some money to another person with the condition that after a few days, he will take a larger amount from him in another city, or town, and if that currency is of gold or silver or wheat or barley, the transaction is usury which is Åaràm. However, if the person who is taking more amount gives some commodity against the excess amount or performs some task, there is no harm in this arrangement. As for the usual bank notes, which is classified as things to be counted, it is not permissible to take more in exchange. But if it is sold cash or credit, and the bank notes two apart units, like Tooman and Dinar, there is no harm if something more is taken in exchange. And if a person sells bank notes on credit basis, for more in return, and if they belong to the same classification of commodity, it is a matter of Ishkal. 1078. If a person is owed by someone, and the thing owed is not in the category of gold, silver or anything measured or weighed, he can sell it to the debtor or anybody else for a lesser amount and realise the sum in cash. On this basis, in the present times, a creditor can sell the bills of exchange or the promissory notes received from debtor, to the bank, or any other person, at a price lower than the amount due to him (which is called discounting in common parlance) and can take the outstanding balance in cash, because dealings with regard to common bank notes is not by weight or measure. 1079. If a debtor directs his creditor to collerct his debt from the third person, and the creditor accepts the arrangement, the third perso will, on completion of all the conditions to be explained later, become the debtor. Thereafter, the cre ditor cannot demand his debt from the first debtor. 1080. Inall cases of tranfers, one to whom it is assigned should have accepted it, whe ther he is debtor or not. 1081. The creditor may decline to accept the transfer of debt, al though the person in whose name the assignment has been given may be rich, and may not fail to honour the Hawalah. 1082. If aperson accepting the Hawalah is not adebtor to the person giving the Hawalah, he can demand the amount of the Hawalah from the person who gave it, before honouring the Hawalah, unless it was previously agreed that the payment would be deferred for a fixed period and that period has not Iapsed, in this case, the person accepting the Hawalah cannot demand payment even if he himse if may havehonoured the Hawalah-And if the creditor compromises for a lesser amount, the person honouring the Hawalah should demand only that sum which he paid. 1083. When the conditions of the transfer of debt have been fulfilled, the person effecting the Hawalah and the person receiving it cannot cancel the Hawalah, and if the person receiving the Hawalah was not poor at the time the Hawalah was issued, the creditor cannot cancel the Hawalah even if the recipient becomes poor afterwards. The same will apply if the recipient of the Hawalah was poor ot the time it was issued, and the creditor knew about it. But if the creditor did not know that the person to whom Hawalah has been issued is poor, and when he comes to know of it, the recipient is still poor, then the creditor cah abrogate the Hawalah transaction, and demand his money from the debtor himself. But if the recipient of Hawalah has turned rich, then the right of cancelling the Hawalah is a matter of Ishkal.Rules Regarding Mortgage (Rahn)
1084. Mortgage means that a person effects a conveyance of property to another person as security for money debt, or property held under responsibility, with a provise that if that debt is not paid, the creditor may pay himself out of the proceeds of that property. (1). What is nowadays aommonly called ~Rahn~ in Iran, is not realy Rahn. It is customary to give some money as lean to the owner of the house in order to live in his house. But if this act is without any rent, it will be usury and Åaràm, and the person cannot live in it, and if it is with rent and leasing the house is a condition for giving the loan, then it will be Åaràm, and if giving the loan is a condition for leasing the house, as an obligatory precaution, it is not permissible. 1085. A person can mortgage that property over which he has a right of disposal or discretion, and it is also in order if he mortgages the property of another person with his permission. 1086. The benefit which accrues from the mortgaged property, belongs to the owner, whether the mortgagor or any other person. 1087. The mortgagee cannot present or sell the mortgaged property to another person without the permission of the owner, whether he is the mortgagor or any other person. However, if he presents or sells it to another person, and the owner consents to it later, there is no harm in it. 1088. If the creditor demands the repayment of debt when it is due, and the debtor does not repay it, the creditor can sell the mortgaged property and collect his dues, provided that he had been authorised to do so. And if he was not authorised to do so, it will be necessary to obtain permission from its owner. And if the owner is not available, he should, as an obligatory precaution obtain permission for the sale of the property from the Mujtahid. In either case, if the sale proceeds exceed the amount due to him, he should give the amount in excess of his debt to its owner. 1089. If the debtor does not possess anything other than his house he occupies, and the essential household effects, the creditor cannot demand the repayment of debt from him. But, if the thing mortgaged by him is his house or its household effects, the creditor can sell them and realise his dues.Rules Regarding Surety (Dhaman)
1090. If a person wishes to stand responsibility for the repayment of the debts of another person, his act in this behalf will be in order, only when he makes the creditor understand by his words in any language, or by conduct, that he undertakes the responsibility for the repayment of the debt, and the creditor also accepts the deal. It is not necessary that the debtor, too, should be agreeable. This act is established it two ways: 1) That the guarantor transfers the debt from the debtor's obligtaion to his own obligation. Then if he dies before paying the debt, like other debts it will have priority to inheritance. And this is the real –Daman- according to the jurisprudents. 2) That the guarantor under takes to pay the debt but he is not obliged to pay it, and if he does not mention it in his will, the debt cannot be paid from his estate. 1091. When a person gives a guarsntee with a condition, as when he says, if the debtor does not repay your debt, I shall pay it’, it is a matter as valld, according to the first definition made in the previous rule. But it will be of no matter according to the second definition. 1092. A man giving guarantee should know that the person for whom he stands surety is actually a debtor. If someone is still considering to take a loan, one cannot stand as his guarantor till such time when the loan has been taken. However this condition is not necessary for the second definition of Daman. 1093. If a person guarantees the payment of the debt of a person, without obtaining his permission, he (the surety) cannot demand anything from the debtor. 1094. If a person guarantees the payment of debt with the permission of the debtor, he can demand that amount or quantity from the debtor even before having paid anything to the creditor. But if he paid, or delivered a commodity other than the one which was owed, he cannot ask the debtor to pay or deliver to him that commodity. For example, if the debtor owed 10 tons of wheat, and the guarantor settled the debt with 10 tons of rice, he can arrangement, in which case, there is no objection. 1095. If a person becomes a guarantor for the payment of someone's debt, he cannot withdraw from his responsibility as a guarantor. 1096. As a precaution, the guarantor and the creditor cannot stipulate an option for cancellation of the guarantor at any time they wish to do so.Rules Regarding Personal Guarantee for Bail (Kafalah)
1097. Personal surety or security (kafalah) means that a person takes the responsibility for the appearance of a debtor, as and when the creditor asks for him. A person who accepts such a responsibility is called Kafil (guarantor). 1098. A personal surety will be valid only when the guarantor makes the creditor understand by words (in any language), or conduct, that he undertakes to produce the debtor in person as and when demanded by the creditor, and the creditor also accepts the arrangement. As a precaution, the debtor's consent is also necessary for the validity of such a guarantee; in fact, as a matter of precaution, both the debtor and the creditor must accept the Kafalah. 1099. Anyone of the following five things will terminate the personal surety (bail guarantee): (i) When the guarantor hands over the debtor to the creditor, or if the debtor himself surrenders to the creditor. (ii) When the debt of the creditor has been discharged. (iii) When the creditor himself forgives the debt, or transfers it to semeone alse. (iv) When the debtor or the guarantor dies. (v) When the creditor absolves the guarantor from his personal surety.Rules Regarding Deposit or Custody or Trust (Wadi`ah)
1100. When a person gives his property to another person, and tells him that,it is deposited in trust, and the latter accepts it, or, without uttering a word, by a simple conduct, the depositor and the receiver both understand and accept the intention, then they must follow the rules of Wadi`ah as will be explained later. 1101. If a person accepts a deposit from a child without the permission of its owner, he should return it to its owner. And if that deposit belongs to the child himself, it is necessary that it is delivered to his guardian; and if it gets lost or destroyed before the delivery, the person who accepted the deposit must compensate for it. But if he had secured it from the child with the intention of delivering it to the guardian, and if he had not been careless in its safekeeping nor he had exercised such discretion over it for which permission had not been granted, he will not be responsible for a loss or a damage. The same rule will apply in the case of an insane depositor. 1102. If a person makes the owner of the property understand that he is not prepared to look after his property, and does not accept it, yet the owner leaves it there and goes away, and then the property perishes, the person who has declined to accept the deposit will not be responsible for it. 1103. If a person renounces the custody of the property deposited with him and abrogates the arrangement, he should deliver the property to its owner or to the agent or guardian of its owner, as quickly as possible, or inform them that he is not prepared to continue as a custodian. But if he does not, without any justifiable excuse, deliver the property to them and also does not inform them, and the property perishes, he should give its substitute. 1104. If a person who accepts a deposit does not have asuitable place for its safe keeping, he should acquire such a place, and should take care of the deposit in a manner that he would not be accused of negligence. And if he acts carelessly in this regard, and the property is lost or damaged, he will have to compensate for it. 1105. If a person who accepts a deposit has not been negligent in looking after it, nor has he gone beyond moderation, and then the property unexpectedly perishes, he will not be responsible for it. But if he has been careless about its security, say, by keeping it at a place which is vulnerable to theft, or if he commits such excesses like using those articles of deposit without the owner's permission (like wearing the dress or riding the vehicle or the animal etc.) and then the deposited property is lost or damaged, he should pay the owner its compensation. 1106. If the owner of the deposit dies, and it devolves upon his heirs, the trustee of the deposit should give the property to all the heirs, or to the person who has been authorised by all of them to receive the property. Hence, if he gives the entire property to one heir without the consent of others, he will be responsible for the shares of the remaining heirs. 1107. If a person with whom a property has been deposited, observes in himself the signs of approaching death, as a precaution he should, if possible, deliver the deposit entrusted to him to its owner, his guardian or his agent, or inform him. And if it is not possible to do so, he should make such arrangement which would satisfy him that the deposit would reach its rightful owner after his death. For example, he should make a will about it, attested by witnesses, and give the name of the depositor to the executor of his will and to the witness, describing fully the nature of the deposit, and the place where it is kept. 1108. If a person with whom a property has been deposited, wishes to go to a journey, he can give the deposit to his family's members to keep it safe. But if keeping the deposit needs his own presence, he should either stay, or deliver it to its owner, his guardian or his agent, or inform him.Rules Regarding Borrowing and Lending (Ariyah)
1109. Ariyah means that a person gives his property to another person for use in permission ways. 1110. If a person who has borrowed something is not negligent in its keep, nor does he go beyond moderation in its use, he will not be responsible if it is lost or damage by chance. However, if the two parties stipulate that, the borrower would be responsible for loss or damage, or if the thing borrowed is gold or silver and it is lost or damaged, the borrower should compensate for it. 1111. If a person borrows gold silver and stipulates that if it is lost or damaged, he will not be responsible, he is not responsible if it is lost.| |
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