Mortgages Are Permissible in Islam After All – But Will Scholars Compensate Us For Their Gaffe?

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Previous exposure of Deobandis and other Salafis catastrophic gaffe (for your finances at least) in declaring Western mortgages ‘prohibited’ and ‘the same as incest’ to be found here:

https://asharisassemble.com/2016/04/25/how-muslim-scholars-errors-are-ruining-your-finances/

And here:

https://shaykhatabekshukurov.com/2016/07/22/scholars-declared-mortgages-to-be-interest-and-forbidden-making-it-impossible-for-muslims-to-own-their-own-home-but-they-couldnt-prove-it/

This issue is a wonderful illustration of how brazen and shameless scholars are nowadays: regardless of the extent of the damage they cause or how badly they are wrong and shown to be so, they refuse to back down, so confident are they, and with good justification, in the cult like adherence of their followers.

By Sheikh Atabek Shukurov

Since commenting on the disturbingly unislamic and frankly seemingly secular opinions of Deobandi elites such as Zafar Tahnawi – for example about burning some groups of Muslims alive (let alone non-Muslims), and the surprisingly weak and Salafi oriented arguments of the current head of Deobandism, Mufti Taqi Usmani (in both the issues of Mortgages being allegedly ‘haraam’ and the night or Isha Prayer when there is no true astronomical night in Norther Latitudes), perhaps understandably, a group of their devoted followers are feeling threatened. Such individuals have only one concern: ‘Do everything in order to save your sect by defending the abovementioned two leaders, regardless if it they are right or wrong!’ That is sadly what typically happens if one cares for ones’ own sect and pays no concern to the reputation and spread of the religion of God. It is actually mentioned in Quran many times – for example when Ibrahim PBUH smashed idols to prove that they are not God, they knew that he was right. The only ‘response’ from them to the argument of Ibrahim PBUH was;

‘’They said, “Burn him and support your gods – if you are to act.“’ 21:68

That was the response of the Shuyukh of that religion. But their followers normally follow(ed) the dialogue with one and only intention – which Quran clearly stated:

’And it was said to the people, “Will you congregate so that we might follow the magicians if they are the predominant?”’ 26:39-40

 

So, followers only watch the debate with the intention of following their own preferred leaders if they win, but nothing happens if they lose! That’s why such heads of movements and their followers are very predictable.

When I wrote my second article on the issue of mortgages, I actually asked the Deobandi ulema to let me know if they don’t understand some of our Hanafi texts. Also, I was expecting some more trolling and drama as there are, regrettably, a lot of drama queens in the field of religion.

Both of my expectations came true; some of the molanas didn’t understand that in the issues of Muamalaat (transactions – and in Islamic jurisprudence this includes buying, selling, marriage etc) we Hanafis look at what exactly is happening and not at what was said. So to give a very simple example, if a modern bank talks about ‘interest’ rate, we do not automatically take this word ‘interest’ to mean the prohibited ‘riba’ that is mentioned in the Quran, but rather see if the process and transaction is the same as the prohibited riba – as opposed to just the name. Because of their not understanding this important point they’ve been writing articles asking me to ‘clarify’. Normally, when noble people don’t know something or don’t understand it, they pose the question in respectful way, but we are dealing with a somewhat different category of people. That’s why the question was posed in different way. I excuse them, because I cannot be angry at a snake for not flying or a whale for not walking on land.

When I released my articles about the issue of time of prayer and mortgages being permissible, I never intended to offend any sect. But people with strange mentalities will get offended even if you look at them with a nice smile. A couple of months ago, when I embarked on trying to clarify these issues after seeing the numerous questions posed by readers as well as the manifest suffering of Muslims in the housing market vis-à-vis their non-Muslim neighbours, I sincerely thought that the confusion that seemed to be spread by the Deobandis et al was understandable and probably a result of how widespread Salafist ideas have become. I honestly thought that when I presented clear proofs from the Hanafi texts, Deobandis and Brelwis as purported Hanafis, would be happy to reclaim the Hanafi (and easier) position. It was after seeing their responsa, vile insults and entrenchment that I realised that their mistake was not a sincere one but rather was born out of an ensconced desire to make things harder for people as proof of their ‘piety’, and in some cases to stuff their coffers with Saudi and financial institution cash (the Mufti in question seems to have close links with Saudi institutions and banks, as is proudly advertised on his official page. Ironically, his followers are fond of accusing all and sundry of being ‘sell outs’ and of ‘receiving government cash’), then I became somewhat ‘radicalised’ and had to respond to their aggressive posturing and insults with robust academic proofs as well as taking them to task for the violent and repressive ‘fatwas’, which they refused to moderate in the view of overwhelming evidence from Classical Sunni Islam and which they brazenly lie about in front of non-Muslims.

It became increasingly clear that these people behave as a cult and their concern is for the reputation and survival of said cult and not for the wider appeal of Islam and certainly not for the financial wellbeing of Muslims (other than perhaps themselves).

Now they saw that their agreements of “two prices for one commodity”,  “two transactions in one ” “devaluation of currency ” were totally ruined, and thus they can’t defend the honour of Mufti Taqi, they suddenly remembered that they didn’t agree with me that “Hanafis don’t look at the words but at what practically agreed “.

Now they have produced a new episode of their drama which says;

Despite this, and despite the fact that in all likelihood he read the above, Atabek stubbornly – and falsely – writes: Everyone accepted my point about Mortgage not being money lending from the bank but rather it is Tawkeel.”

They claim that they “refuted ” my argument by one and only principle which says; “Atabek’s basic argument is that since the borrower (mustaqrid) is not at liberty to spend the loan as he pleases, but has to spend it on the house, he is in effect purchasing the house on behalf of the bank. But this does not follow. At most, it amounts to a qard (loan) with a condition (shart), and a qard is not invalidated by an impermissible condition (القرض لا يبطل بالشرط الفاسد). The client simply borrows the money, purchases the house, and pays back the bank with interest. While the house may be held as rahn (collateral) by the bank until the owner pays back his debt, this in no way entails the bank has ownership of it.”

So, the title of the new episode of the ‘Deowood’ drama is “If you borrow money as debt with a condition then the debt is valid but condition is void”.

We saw that their contemporary head has no skills in Arabic nor in Fiqh. Will their kids have them? We will see today…

Again, I want to assure the readers that I will respond to it and clarify the mess they are creating. Then all of sudden they will remember that “2 prices for one commodity is problem ” then I will have to write another article with tonnes of proofs then all of sudden they will remember that “two transactions in one is void ” and it will carry on ad infinitum. Their main goal is that I will get tired from repeating the same arguments, so they can say “look Atabek is not responding, because he lost!” Then they can celebrate  “victory “.

That’s why dear reader you take a note that it is mentally immature and confused people with no fear of God.

Anyway , in this article I want to give a detailed explanation of the fact that Hanafis, in issues of the Mu’amalaat, look at what is practically happening and not at was said or ‘told’.

I will also clarify that the principles of buying (for example) are applied not on the word of ‘Buying’ but on the practical transaction of buying.

I will try my best to quote only from the primary books of Hanafi school which are taught even in non-Hanafi institutes such as ‘Mukhtasar Quduri’, ‘Kanz al-Daqaiq’, but sometimes I will quote from secondary sources of the school for extra clarification. It is just for the honest readers, I have learnt the hard way that these people care not for the Hanafi school except so as to pretend to follow it to gain them some protection from allegations of Salafism and modernism, which they would be hard pressed to counter if it were not for their use of this venerable school as a hostage.

‘Wording’ or ‘Practicality’

The main confusion in their understanding (apart from being completely insincere in their approach) is the principle in Hanafi school which says:

‘Invalid conditions don’t invalidate debts, the conditions will be ignored‘.

First of all, this principle is correct, though Shafeis, Malikis and Hanbalis disagree with us – as far as I know. So this will be a problem not for us but maybe for Mufti Taqi and his followers, who are fond of using Shafis and Hanbalis, as well as antropomorphists/Salafis such as Ibn Taimia as ‘proofs’ when the Hanafi madhab doesn’t suit them (i.e most of the time).

As I said in my very first article, for you to consider some transaction to be a debt and not something else, you have to look at what practically has been agreed to. I know this is common sense, but nowadays Muslims are very proud of gong against common sense, common manners, logic etc. so sadly it is not a proof for them. So I have to go into details.

Let’s follow the issue in Question/Answer format, because that is the best way to understand for the people who are not qualified in the field.

What is more important in transactions: is it the wording or what practically happens?

I say; it is what exactly happens. Letters and words don’t change anything. So, letters don’t have the magic power of validating and invalidating things except in very exceptional situations, most of which we have disagreements in anyway.

Because, from my painful experience of being misunderstood and insulted, I have come to the realisation that our Deobandi friends don’t have a good understanding of average texts I will give them examples from very-very basic texts.

It is ‘Mukhtasar Quduri’:

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Follow the red box;

Valid marriage can be established by using the following words; Marriage, Possession, Gift, Charity. But cannot be established by the words of; Renting, Borrowing, Permission for use

According to that, if I go to my marriage ceremony and Imam says to the lady; ‘Are you giving yourself to Atabek? And she says; ‘Yes!’, then I say; ‘I am taking her’, then the marriage is valid.

Same if we say ‘Are you taking her, possessing her’ as well as if the father of the lady says; ‘I am giving my daughter as charity’. All of that is valid. I just want to clarify, all of these words are used in Arabic language, even if it looks a bit strange in English.

Just to make it easier to the English speakers to understand, I’m saying that the marriage contract will be valid not only by using the specific word of ‘marrying’, but by any other word which is used to give the meaning of continuous attachment to each other.

Here are some more examples:

It is from ‘Kanz al-Daqaiq’ of Imam Nasafi (died 710 Hijra) – a famous Hanafi Imam and one of several esteemed scholars with this name. Of course, my opponents spend much more time obsessing over the minutiae of the lives of their latter day founders and favourite Salafi scholars than they do on the Hanafi adepts they claim to represent.

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Marriage contract is valid by using the word of ‘marriage’ as well as by using any word that means possessing straight away’.

For example; an Imam asks in front of the witnesses; ‘’Are you taking her?’’ He says; ‘Yes’. Then she agrees too (Salafis are not too worried about this second bit, don’t know about Deobandi brothers), then that is a valid marriage. But then a Deobandi question; How come that the marriage was established not by the word ‘marriage’ but by the word of ‘taking’?

I say; that’s because the most important thing in transactions is the practical side and not the wording!

Some more examples to clarify; It is from ‘Bahr Raiq’ of Ibn Nujaim, it is a commentary on the exact text of ‘Kanz Daqaiq’;

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Follow the second red box;

Marriage will be valid with the words of; Gift, Charity, Possession, Payment/Salary, Buying and selling according to the correct opinion

It means, if you go to one of the Arabian countries and use the word of ‘buying’ and ‘selling’ in your marriage, such as; Imam says to you, ‘Are you buying her?’ You say ‘Yes!’ then that will be a valid marriage transaction (I know the extreme Salafis took this too literally recently, but Islam was sent for mentally normal people. So Islam and Quran is ‘software’, it won’t have any effect if you run it on defective ‘hardware’)

Now, say you come back from an Arabian country, then this Deobandi mulla says to you; ‘We say in the Hanafi school ‘anything you buy, you can sell‘, as Hanafis do indeed say, and offers you to sell her to him. Will it be permissible for you to sell your wife to this Deo-mulla?

The answer is a very big ‘NO!’

But why is it not permissible? We have to explain, otherwise literalists, anti-rationalists and blind followers will become confused, as we already saw.

That’s because you can sell something that you practically buy. We don’t mean by ‘buying’ the verbal pronunciations. We mean only the practical buying and selling transaction. The practical transaction is: exchanging a valuable commodity for a valuable commodity.

But marriage is not ‘exchanging of the commodities’, but rather, Islamically, it is an agreement to make sexual relationships permitted.

Someone may ask; ‘’Well, you’ve established this marriage with the words of ‘buying’ and ‘selling”!

As I said, in matters of the mu’amalaat, we don’t look at the letters and words, but we look at what exactly is being agreed technically. Based on that, this Arabian lady you ‘bought’ from Arabia is your wife and not your slave or commodity. That’s why we tell off that Deo-mulla who is willing to buy her!

That’s not because the principle that he is quoting is wrong, but because he is applying it incorrectly. So, you can practically sell a commodity that you practically buy, and not a human on whom you use the letters of ‘B’, ‘U’, ‘Y’, ‘I’, ‘N’, ‘G’ to marry. Letters and words have no magic power.

I ask: If these Deobandi mullas are genuine in their new drama, then would they sell their wives if they have setup their marriage by the words of ‘taking’, and ‘giving for the sake of God’ (as they usually do) etc.?

If not, then we all know that they were just fabricating this drama to waste time.

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It is again ‘Mukhtasar Quduri’.

We have two type of divorces: First is direct, second is Indirect. Direct is to use the noun or verb extracts of the word of ‘Divorce’. Indirect is to use words which are not extracts of the word for ‘Divorce‘’.

Quduri’ is giving us examples:

Your rope is on your neck!’ – it is a metaphor that Arabians would use to mean ‘You are free’. It is taken from the example of a camel. If you want to set it free from you just throw its rope on its neck.

Now question: Let’s suppose two Arabian couples come to some Deo-Mulla and the husband says; I told my wife ‘your rope is on your neck’! Will the Deo-Mulla turn to the lady to find if the rope is still hanging?

I personally confirm that we Hanafis will ask the husband; ‘Did you mean to divorce her? Was it a conversation about separation?’ If the husband says ‘Yes’ then we say that it was a valid irrevocable divorce. As for the first type of divorce, then the official position is that the divorce will happen regardless if the husband means that or not.

Based on that someone may ask me; ‘Well in that case bank also uses the direct word of ‘lending money’ in the case of mortgage

The issue of validity of the divorce is based on evidence from Hadeeth. So, if your bank is giving you a divorce when you go asking for mortgage then yes, you are divorced from your bank! ))

On a more serious note, in the same way when you use the word ‘buying’ in marriage you won’t actually buy the lady but marry her, even if the word of ‘buying’ is directly used for buying things as well.

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It is from ‘Quduri’, the chapter of Gift

If someone gives a gift with a condition of taking something in response, it is valid and will become in the status of a buying transaction.  So, he can return it back because of defect, or for the reason of not seeing previously, as well as the neighbour will have a right to claim it…

Just small comment: if you sell your house then your neighbour will have a right to buy it exactly at the same price which the buyer is paying. This right is called ‘Shuf’ah’ and is established to protect your neighbour from a new unknown buyer. Like maybe some of these Salafi/Deo mullas moved in and started giving strange fatwas about wife lashing etc. and driving down the house prices in your area for example. But if you give your house away to someone, then your neighbour has no right of Shuf’ah. Also, the right of returning and many other things in which giving a gift differs from the buying and selling transaction.

‘Quduri’ is talking about a scenario where someone gives a ‘gift’ with the condition of taking something in return, we take this interaction as ‘buying’ even if they used the word ‘gift’.

Why do we ignore the word of ‘gift’ that they were using? Because in the Mu’amalaat, we from the Hanafi School look at what practically is happening. And the practicality of our scenario is; exchanging a commodity that has a value for a commodity that has a value. This is a buying transaction regardless of the words they are using.

Here is Lubab confirming what we said above;

Here is Imam Nasafi is explicitly mentioning what we said;

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Gift with the condition of getting something in return will considered as a gift at the start…but will be considered as ‘buying agreement’ after possessing so you can return it due to defect or by the fact of having not previously seen it, and the right of Shuf’ah is applied

Here we have from ‘Bahr Raiq’:

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‘’Amongst Tabeen, the scenario of it [conditional gift] by saying ‘I am giving you this with the condition that you give me that’ is a buying and selling transaction by consensus’’

Perhaps perceptive readers will notice that Salafis and Deobandi bothers are always invoking ‘consensus’ or ‘ijma’ when it suits them and ignoring it when it doesn’t.

It is also confirmed in the book ‘Ghayat al-Bayaan’.

[Then Ibn Nujaim says] ‘’It means that this is a buying transaction at the start as well as after possessing’’

Summary of the above mentioned examples:

  • Marriage will be valid even if you don’t use the actual verb of ‘Marriage’!
  • You can establish a valid marriage by using a words such as ‘gift, possession, charity, taking, giving, buying, selling’
  • Divorce is valid by using words which are not extracted from the verb of ‘Marrying’ either
  • Gifts will be considered the same as a buying or selling contract if there is a condition of taking something in return.

All of the abovementioned examples show that in the Mu’amalaat we care about the practical and technical side of the issue and not the words that are being used.

Conditions that Invalidate Transactions

Transactions with regards to conditions are of two types:

  • Transactions that will be nullified by conditions (such as buying and selling and letting type contracts)
  • Transactions that will be not be nullified by conditions

An example of conditions nullifying contracts: If you say to the seller, ‘I will buy your car with the condition that you buy my car’, the agreement is void because of the condition!

The example of the second type, transactions that don’t get nullified by conditions are those such as; Debt, Gift, Marriage etc…It was just perfect example to understand our matter. We said that Debt is not nullified by a condition, as well as gifts are not nullified by conditions.

Here is the text from ‘Kanz’ where it says that a gift is not nullified by conditions:

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As you see both debts and gifts are classed as transactions that don’t get nullified by conditions. But that is only if you describe the debt and gift in practical as opposed to a simply verbal or literal format.

But if you say; ‘It is a gift with the condition that you give me something else’ then it is a buying contract and not a gift contract, irrespective of you calling it a ‘gift’, we treat it as a buying and selling agreement.

The same is applicable on debts. If you say; ‘I am lending you money because I am travelling, but you cannot use it at all, but only you have to keep it till you I take it back when I come back’, we say it is not a debt but it is ‘Wadee’ah’ (means you should save it till he comes back).

I hope all of the above mentioned examples are enough to understand the following things;

  • In the mu’amalaat we don’t look at the words, but to what was agreed technically
  • You can apply the issues related to buying and selling contracts if you buy something practically, even if you use different words or contradicting words, as long as it was practically a ‘buy and sell’ transaction.
  • A condition not nullifying some contract applies depending on how you set up that contract practically and not that you will be using the words of a certain type of contract but in the practical term you are doing something else.

I assume that the ‘misunderstanding’ of Deo-Salafi brothers is sorted, but once again I want to quote the texts about debt.

Here is ‘Radd Muhtaar’

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Invalid condition doesn’t nullify the debt, but only the condition itself will be nullified, such as [borrowing one thing] and paying back different thing. For example, borrowing a broken item with the condition of paying back non broken ones. [Debt is] valid but [the condition is] invalid.  Or borrowing wheat with the condition of payment in some other location. He has to return back similar to what he has taken. If he returns better quality, lender will be forced to accept, and some said: won’t be forced.  In the book of Khulasa, lending money with a condition is Haraam, and the condition is not valid. For example, lending out money with a condition of being paid in some other location’.

These examples clarify the situation perfectly.  If you agree to give money to someone in Pakistan with the condition of taking it back in the UK, you are looking to secure the safety of your money by giving him the benefit of using them till you get to the safe place. This agreement is not a buying contract, because it is not an agreement of exchanging commodities that have value. Also it is not a marriage contract, because it is not about a sexual relationship with the money that you grab. It is not a farming and agriculture contact. Rather it is a debt with a condition and has its own name in Fiqh as Sufataj.

In the case of mortgages, the bank says: ‘Ok Sir. We give you money, but you cannot use it to travel somewhere, nor to marry, nor to perform Hajj, nor this and nor that. You have to use it only to buy that specific house which we have assayed and checked and evaluated! If you use it for anything else first of all you won’t be able to do it anyway. Actually if you do your best you won’t be able to use it.  Secondly, we will take legal action against you!

Now my question; what exactly is the bank describing? I assume that people who read Quran and yet thought that God is ordering us to burn the gays either alive or after stoning to death, will understand from what the Bank offers that it is a discussion of a marriage contract where the Bank is describing a dowry that you cannot use for anything but only for a house.

Obviously, I am not asking this sect, but I am asking normal readers of all stripes: What exactly is the bank describing?

Further I want to give yet more examples from our Hanafi texts to show that in the Mu’amalaat we care about what was described in terms of it is technical side.

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We have something in the fiqh (legal theory) of contracts called ‘Aariya. It is when you take something from a person to use temporarily, for example you take a book from your friend to read. This is called ‘Aariya and it has its own principles. In the abovementioned text, Marghinani (al-Hidaya) is saying; ‘If you make an agreement of ‘Aariya on the Dinar (golden coin) and Dirham (silver coin) and any other commodity that is weighed by kg and volume, it is no longer classed as ‘Aariya even if you agree on calling it ‘Aariya. It is instead now a contract on debt’.

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Marghinani carries on explaining why it cannot be ‘Aariya as they are pronouncing but has to be a debt (which is good, because If I was to explain this self-evident fact to them they would surely decry it as my own invention – at least they cannot decry Maghinani, although, you never know with these guys. The only people they fear to impugn are their own latter day authorities). So, why it is not an ‘Aariya but a debt? Marghinani says;

‘’Because the contract of ‘Aaariya is applied only on usage [i.e like when you borrow something and return it, like a book or a lawnmower]. And in the above mentioned commodities (golden coin, silver coin etc) ‘usage’ is not possible unless you consume it. That necessitates ownership over it (over the coins etc). That can only happen in the case of a Gift or a Debt. Debt is the lowest between the two’’

It is very obvious that we disregard what wording they used during the agreement, but rather we look at what exactly is happening practically. 

The difference between ‘Aariya and Debt is in the first you are not responsible to compensate the owner if it is damaged by someone other than you. Here is Nasafi again, confirming it:

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But in the case of taking a debt, you compensate the lender regardless.

Here is Haskafi and Ibn Abideen confirming that if you make a contract of ‘Aariya on money then you are responsible for compensation regardless, because it is not an ‘Aariya but debt even if you said ‘‘Aariyah’.

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In the first red box;

‘Aariyah of the money is a debt, so he is responsible even if it gets damaged/lost before he uses it’

Now I want to ask the normal people who are reading my article (and not Deo-mullas who are only concerned to defend the ‘honour’ of their two chiefs): We now know that in ‘Aariyah there is no compensation if it gets damaged or lost by itself without you abusing it. Then you make an agreement of ‘Aariyah on £10,000 with your friend but this money gets stolen even before you used it. Are you responsible to payback or not?

Can some Deo-mulla say; ‘Oh yes, I read somewhere, could be in ‘The New-York Times’ that in ‘Aariyah there is no compensation! That’s why you don’t pay back!’

Will this be accepted in Hanafi School?

The answer is a big no. That’s because even if you pronounced the word of ‘Aariyah when you came to your friend, but technically you were in fact making an agreement on a debt, because you were taking money to use. That’s why Hanafis don’t treat your agreement as an ‘Aaariya regardless of what you said, but treat it as ‘debt’ because that’s what technically happened.

But as for the Deobandi brothers, I can’t say.

Just to clarify this ‘Aariya case: If you borrow money not to use but as a decoration or as coins or valuable stamps just to show someone, then we treat it as ‘Aariya and not as a debt. But for that, you have to clarify it during the agreement by saying for example; ‘I have a friend who wants to see the rare coins that you have. Please can I borrow them?’ Now, we say you are describing an ‘Aariya, that’s why we treat it as ‘Aariyah. But you have no right to spend them, it otherwise you have to refund. Here it is from ‘Hidayah’

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I want to give one last example to show that we in Hanafi school care about what technically is going to happen, and don’t look at what was merely said.

We have a type of contract in the Hanafi (as well as other) schools called ‘Muzara’ah’. It is when two people agree to setup an agricultural partnership. It is when they have a field, seeds to plant, equipment to farm such as a tractor (or a bull) and one of them is a labourer. Also we have a contract called ‘Sharikah’ which is literally ‘companionship’. It has its own conditions and rules. I am not going to expand on it here due to insufficient space. Please try to find Hanafi Faqeeh (legist or legal expert) if you want to learn it. I hope by now you know who is Hanafi and which sects are not, despite well-funded attempts to confuse you.

Abu Hanifa said; ‘’Muzara’a is void for the reason that its payment is part of the product which is supposed to come later (i.e agricultural produce) and may not come at all if some disaster occurs’’.

His two students, Abu Yusuf and Muhammad said; ‘Muzara’ah are four types, and only one of them is void’. Now let’s see how does it work;

From ‘Mukhtasar Quduri’, with its commentary Lubaab;

Follow the red boxes of the page in the middle in order:

‘It [Muzara’ah] according to them two [Abu Yusuf and Muhammad] is four types;[First] If seed and plot belong to one person, and labour and bull belong to the second person, it will valid Muzara’ah. [In the commentary it says;] In this scenario owner of the plot and seed is hiring the labour. Bull is nothing but an equipment of the person who is hired for labour. Also [it is valid Muzara’ah] if plot belongs to one person, and labour, bull and seed belong to the second. [In the commentary]; In this scenario labour is hiring the land for the coast of some per cent of the product. Also [it is valid Muzara’ah contract] if plot, bull and seed is from one person and labour is from the second. [Commentary] In this scenario Landlord is hiring labour. Our teacher [he means Ottoman Era scholar Ibn Abideen the teacher of the author of ‘Lubaab’, Sheikh Midani] has composed a poem to describe the three valid scenarios…But if plot and bull is from one person and seed and labour from the second then it is void. [Commentary] That’s because if we consider this contract as hiring the plot then it is void for the reason of putting a condition of bull on the landlord. That’s because we cannot consider that the bull comes with the plot [as a water-pipe for example]. It is because the usage of each of plot and bull is different to the other. The plot is to grow, and bull is to plough the soil. Also, we cannot consider the contract as hiring the labour because putting the seed as a condition on him will invalidate it. That’s because the seed is not something that comes with him [as his trousers for example]. There are three other scenarios which author [Imam Quduri] didn’t mention, and all of them are void;

  • When bull and seed is from one of them, and other two are from the second [labour and plot]. It is void because it is a contract of hiring the plot with the condition of labour.
  • When the bull is from one of them and the other three from the second person. The reason of non-validity is, it is a contract of hiring the bull with a portion of the product.
  • When the seed is from one person and everything else from the second. The reason for being void is that it is a contract of buying the seed for a part of the product that comes from it.

Our teacher has composed a poem to include these three scenarios…’’

As we see, Hanafis disregarded the words of ‘Sharikah’ and ‘Muzara’a’ – rather they are actually looking at what practically has been described. Then they break it down and include each part of the transaction to the relevant chapter of Fiqh such as lending, hiring, renting and borrowing. Then they apply each according to its own principles.

Now let’s go back to the third page with the large red box. He is explaining what happens if some disaster happens which destroys the produce such as floods, or an earthquake etc…

As we saw, there are only three valid scenarios. Each of these three scenarios has its own ruling which is different to the other. So, these three scenarios having the same name of ‘Muzara’ah’ doesn’t make it the same contract. We went through each of them. That’s why in the scenario of damage we won’t treat them exactly the same way. Having the same name doesn’t matter, but what practically happens is the important thing in the Mu’amalaat. As we saw in some scenarios, the labourer was the hired person, and in others it was the landlord who was one being ‘hired’, so it wasn’t to the contract of Sharikah (partnership) as they said, but Ijarah (hiring) as it practically happened.

Now let’s read through the text together:

lubab_0404

I will translate Quduri’s text in the brackets in bold and Midani’s texts without:

(Once Muzara’ah is established in the valid way) as we have explained (the produced [fruits or vegetables]) are split between them (as agreed among them) as was mentioned for the validity of their contract. (If there is no produce, then the labourer gets nothing) because he is hired to be paid some part of the product which didn’t occur. (If Muzara’ah is nullified [for some reason] then the labourer gets a standard fee) because landlord has got his fee via a non-valid transaction, but (fee won’t be more than the value of the portion of the product that was initially agreed) because he agreed not to receive this extra. This is according to Abu Hanifa and Abu Yusuf. Muhammad said; He gets the standard fee regardless of how much it is. That’s because the Landlord has got all of the profit via a non-valid transaction, so he has to pay the value of the labour as it is not measurable.

lubab_0405 (1)

It carries on:

Ibn Qutlubgha said in the Tas’heeh: ‘The opinion of Abu Hanifa and Abu Yusuf is supported by Mahbubi and Nasafi’ [meaning that is the official Hanafi position].

(If seeds are from the person who is providing the labour then the landlord gets a standard fee for the plot) because the labourer has got the full benefit of using his plot via a non-valid contract.

Thus it is very clear that that these two people set up a Sharikah called Muzara’ah in terms of the word, but Hanafis break it down into different parts and treat each of them according to what its practical side necessitates. Once again, at the risk of repeating ad nauseam, we don’t look at what they said, rather to what technically is happening.

There is only one detail that wasn’t explained by Quduri nor by Midani in this issue. That is in the following scenario which Qurudi however mentioned:

‘’(If there is no product, then labourer gets nothing) because he is hired to be paid some part of the product which didn’t occur.’’

How this transaction was valid in the first place? I mean, if the fee is not known?!

This was one of the side reason why Abu Hanifah said; Muzara’ah is void!

To put the Muzara’ah under the spotlight – it is when two people come together and say: ‘Ok I have something and you have something. We do it together, and the apple that we produce is between us half-half!’ The reason why Abu Hanifa said this is void is because the fee is unknown. First of all there may not be any product at all, and even if there is we don’t know how much is that going to be. That can be valid if we compare it to Mudharabah (investment), but not Ijarah.

Abu Yusuf and Muhammad said it is valid for two reasons;

– People are already doing it, so it is a custom which is quite a strong proof in the Hanafi School anyway.

-There is an ahad narration about Khaibar. Obviously this has its own issues which I am not free to explain in detail here.

As for the ambiguity of the fee, Muhammad has ignored it in ‘’Dhahir Riwayah’’, but briefly commented in the ‘Nawadir’ of Ibn Sima’a. He said; ‘’People are already using it, and have some estimation of what to expect, even though sometimes it may be mistaken on a big scale’’.

I say then, based on this, that some non-clarity cannot invalidate Muzara’ah contract. But is the difference in the Muzara’ah on this acceptable level of ‘unclarity’ or not? This is something to be discussed with farmers themselves…

That was just brief explanation of the matter.

Conclusion

Now it became very clear with lots of examples that Hanafis look at the practical side of what was explained during the contract and not at the words which were used. I hope readers will not be confused or manipulated by this ruse again after going through the article.

Furthermore, they apply the principles of each chapter of the Fiqh when its conditions are met. Based on that, if you marry someone by using the words of ‘’buy’’ and ‘’sell’’, you cannot apply on the lady the principles of a transaction of sale, but only the contract of marriage.

That is how if you use the words of ‘borrowing money’ where money lender doesn’t give you any possession of the money, you cannot call it ‘debt’ because you didn’t possess the money. Obviously, this is pertinent to the issue of mortgages and the woefully inadequate comeback by those who insist that the western mortgages are forbidden or ‘’haraam’’ (when in fact it is far more likely that the ‘halal’ mortgages they themselves promote are the more illicit and exploitative ones, as evidenced by the lack of demand for them from those who have a conventional mortgage or are non-Muslims). All they were able to conjure up was an argument as banal as ‘well, the ‘kufaar’ call it interest and a loan so therefore it is an interest and a loan’. Well, sorry guys, but Islamic shariah definitions are not literal translations of the language used by either banks or Deobandis, but rather have an objective definition and reality as established by the religion of Islam. That ‘interest’ that the bank is referring to is not the prohibited ‘riba’ that God is referring to and neither is that ‘loan’ that the bank refers to the ‘loan’ of the shariah.

What is really funny is that Salafis are willing to ditch the classical definitions of Riba and loans and wholeheartedly adopt those of the ‘kufaar’/’Dajjaal banking system’ as they call it. Well, I know some of these people have a lot of connections with the banks and ‘halal’ finance, as well as accepting invitations and money from ‘Islamic’ governments, but please, then don’t insult others by calling them sell outs!

At the end I want to say; what Deobandi and Salafi mullas are demonstrating is total ‘bankruptcy’ in the Hanafi School and zero skills in reading the fiqhiy texts. This was a painful awakening for me.

Two decades ago they had good scholars such as Mawlana Faheem and Mufti Shams Arifeen with their strong skills in fiqh, Mufti Javeed with his strong skills in rational subjects, Maestro Anwar Badakhshani and his high knowledge in rational sciences and linguistic ability, Sheikh Abdurrazaq Iskandar and his amazing knowledge in Arabic Language, Mufti Abdu al-Same’ with his knowledge on Sarf and Balaghah, and a few others.

When I talk about the low level of Deobandis, I mean the group of new mullas who have only the skills to cause mass panic because of their own lack of understanding of a few issues.

Anyway, my advice to these guys: If you have a drop of fear of God, then stop creating a mess. As you saw, the reason for the mess and public panic attack is nothing other than your own personal inadequacy in reading the legal texts and fiqhiy books.

Why should people be confused because of your wilful ignorance or ideological bias? Why do Muslims have to be fearful of everything from getting a loan as a student to home ownership on spurious grounds? The extensive and baseless list of prohibitions and ‘haraams’ these careless individuals have fabricated has left most of their followers in a state of obsessive compulsive paralysis. And if they fail to prove their case, as we can see abundantly clearly here, then their poor followers are taught to be ‘careful’ and ‘avoid the doubtful things’. This second line of defence that these people have set up in their cult is in fact the most dangerous, because one cannot reason with it. In fact, especially in big issues like taking a mortgage, one should investigate the issues thoroughly and weigh the proofs, rather than telling people to be paranoid and take the harshest view. There is no such Islamic principle as paranoia or avoiding the stronger proof for the sake of being ‘careful’. Rather, this is a last ditch attempt to keep their innocent followers pliant and malleable (and financially and intellectually disempowered and thus easy to control). Meanwhile, many of the same scholars who advise people to be ‘careful’, themselves live lives that are enviable and out of the reach of those who they claim to represent.

In this respect, they have become like the fearmongering and undemocratic politicians and indeed celebrities that we are all too used to in the West.

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4 thoughts on “Mortgages Are Permissible in Islam After All – But Will Scholars Compensate Us For Their Gaffe?

    • As far as banks and their specific services, I’m not sure; but, as far as I’ve understood the discussion, something like a pay-day loan (where the lender is giving you full possession of whatever amount of cash) would be classed as a shar`i “loan” which contains prohibited “interest.”

      Someone correct me if I’m wrong.

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