skills/sistani-guidance/references/books/jme/pages-157-168.md

# Jurisprudence Made Easy

PDF pages 157 to 168. Physical PDF numbering, not inferred printed labels.

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Previous block: [pages 145 to 156](pages-145-156.md).

Next block: [pages 169 to 180](pages-169-180.md).

## PDF PAGE 157

```text
157
- It is not permissible, because it is of the kind that is
exchanged in terms of weight.
* And how about exchanging gold that has been turned
into jewellery for an extra amount of weight of gold that
has not been manufactured, as is the practice among
goldsmiths nowadays?
- This is of usury nature that is haraam, unless the shortfall
is met as discussed earlier.
* Suppose one hundred kg. of an inferior quality of rice
were exchanged in return for ninety kg. of a superior
quality of the same produce. Is such a transaction free
from usury?
- It is not allowed too, because it is deemed a usury deal,
unless the shortfall is made up.
* What about exchanging one hundred kg. of wheat for
seventy kg. of rice?
- It is permissible, for the two produces are not of the same
kind, provided that the deal is done for cash. It is to be
noted, however, that, insofar as usury dealing is
concerned, wheat and barley are treated as one kind of
produce. It is, therefore, not permissible to exchange, for
example, one hundred kg. of wheat for one hundred and
fifty kg. of barley in a straight barter deal. Similarly, the
following kinds of produce are considered one kind: a) all
types of dates, and the syrups extracted thereof; b) wheat,
its flour and bread; and c) dairy produce, be it milk,
cheese, or yoghurt. This is because the original produce
and all that is processed from it is [always] deemed one
kind.
There is, though, another type of usury. It is the one that
emanates from taking a loan.
* And what does it involve?
- It is when the party who is granting the loan stipulates
that the borrower returns the amount loaned plus an
extra amount of money. If, for example, the original
```

## PDF PAGE 158

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158
amount of loan was one thousand Dinars to be paid back,
after a given time, plus an extra hundred Dinars, both
parties to such a deal are committing a sin.
* So this type of loan is with interest. What about an
interest free loan?
- Giving a fellow believer, particularly to those in need, an
interest free loan is a commendable act. In this regard the
Prophet (s.a.w.) said, “He who loans the pious money to
meet an urgent need, his wealth be purified as though
zakat was paid on it and the angels keep a vigil for him,
uttering prayer until the loan is repaid”.
* Could you perhaps tell me the rules of setting up a
partnership, for, I understand, my brother intends to enter
into one with a friend of his?
- Partnership is permissible between two, or more parties,
provided that the parties are adult, mature, have free will,
are not coerced into the joint venture, and not legally
declared incompetent.
The company or partnership contract could take different
forms. It could be a promissory company where the stakes
in it are jointly owned. Any partner has the right to
dissolve the company and seek to take their share,
provided this does not entail any substantial financial loss
or damage to the other partners. If this was the case, the
other party or parties shall have no right of disposal over
the joint ownership of capital. As for profit and loss, they
should be apportioned on a par with the respective share
of each partner.
* Suppose the two parties agreed that one of them gets a
bigger share of the profit because of his extra
responsibilities in running the company. Would the
agreement be in order?
- Yes.
* How would you treat any damage to company property
that was sustained due to actions by either partner?
```

## PDF PAGE 159

```text
159
- The working partner should enjoy full trust. Thus, he
should not be made to compensate for the damaged
goods of any sort, unless his actions have stemmed from
malice or negligence.
* There is another common practice which is a form of
partnership. It is when someone makes available the
capital for another who sets up in business. The
agreement between the two could involve splitting the
profit either fifty-fifty, one third to two thirds, or one
quarter to three quarters. Is this type of partnership
sound?
- This type of agreement is in order, provided that it
satisfies the conditions set out for partnership, especially
when the owner is not legally declared incompetent
because of bankruptcy. It is called silent partnership
(mudharabah).
* What about the working partner?
- It is allowed for him to be legally incompetent due to
bankruptcy, if the agreement does not stipulate giving
him the right of disposal over his money that he is denied
access to. However, the owner and the working partner
may abrogate the agreement before or after starting the
joint venture and whether profit was made. The working
partner should not be held responsible for any damage
sustained or loss made through no malice on his part.
* Suppose the owner made it conditional that the worker
should bear the loss. Is such a condition valid?
- Yes, it is. However, this must entail that full profits be the
worker’s, i.e. profit and loss be the worker’s responsibility.
* What if the stipulation was that both bear the loss and
reap the profit?
- Such a provision is invalid. Indeed, if it was stipulated
that the worker was to meet, in part, the loss, or all of it
from his own property, the condition shall be in order and
the worker must discharge his obligation.
```

## PDF PAGE 160

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161
* If a dispute arises between the two parties, such as the
worker claiming a bigger share, but cannot prove his
claim, how could the situation be resolved?
- If the case is lodged with the Marj’, the statement of the
owner shall be upheld, unless it goes against what is
apparent.
* How can he be sure that it is out of sync with the
obvious?
- To give an example, the owner may claim that the
worker’s share of the profit is, say, one in every one
thousand; for his part, the worker may claim that his share
is what is generally accepted in the trade.
* Suppose the worker alleged that the goods were
damaged, a loss was sustained, or no profit was made. For
his part, the owner denies the worker’s claim. What then?
- The worker’s plea shall be upheld, unless it is patently
evident that it does not tally with what is obvious; to
further illustrate the matter, suppose the worker said that
a certain type of goods alone was damaged due to fire.
* What if the owner accused the worker of abusing his
trust or was negligent?
- The assertions of the worker shall hold, considering the
provision discussed earlier.
* Some people give power of attorney to others to
represent them in a wide range of transactions, such as
selling one’s house. Are there any conditions that should
be fulfilled in this regard?
- Yes, the two parties must be sane, intent on making the
attorney, and can exercise free choice, i.e. not coerced
into authorizing the power of attorney. The mandator
should be adult, except what can be dealt with by the
discerning boy.
* Is there a particular wording for the power of attorney?
- No, it could by anything that refers to it, be it by word,
deed, or a written document. The power of attorney shall
```

## PDF PAGE 161

```text
161
no longer be valid, if either the attorney or the mandator
dies.
* Someone rented his property, or the like, or offered his
services for work. What are the conditions of ijarah (hire)
that should be fulfilled, so that it becomes valid?
- Firstly, the ijarah shall be valid when it is entered into by
the owner, his legal representative, or the guardian. It
shall also be valid if it is approved by any of the said
parties, after the transaction has been made.
That which should be taken into account insofar as the
landlord and the tenant are concerned is adulthood,
reason, free will, and neither should be legally
incompetent; However, the ijarah of the bankrupt himself
shall be in order.
As for the property to be rented or leased out, it should
be: a) of a physical being; b) that the tenant has viewed it,
or has the knowledge thereof by way of description; and
c) that the landlord be in a position to hand it over to the
tenant. Indeed, it suffices that the tenant can move into
the property and make use of it for the purpose he
intended, with it being intact. Such use must, though, be
halal; for example, renting a property for the sale of
alcoholic drink, and other illicit economic activity, for that
matter, shall be deemed null.
* Does ijarah have a special wording or text?
- No, any action, by word or deed, by both parties could
make ijarah effective. The dumb, for example, could make
a gesture suggesting consent to start the ijarah
agreement.
* In some cases the landlord restricts the use of the
property rented to the sole use of the tenant. Would it be
all right for the tenant to sublet the property?
- No, he shall have no right to do so.
* Should the rent contract be free from such a condition,
would the tenant be able to sublet it?
```

## PDF PAGE 162

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162
- The tenant shall have the right to sublet the property to a
third party, provided that he does not rent it out for an
increased rent, unless he has carried out improvements to
the property. This is applicable to places of
accommodation, shops, boats [and other types of rented
capital assets, including arable land].
However, ijarah shall not be valid, unless a duration for
the rent is fixed.
* Could you give me an example of an ijarah where a set
time was not prescribed for it to run and end, and that it
was deemed invalid?
- Suppose the landlord said to the tenant, “I hereby rent
you my house to live in in exchange for one hundred
Dinars as long as you lived there”. This type of ijarah is
void.
However, if the landlord said to the tenant, “I rent you this
shop of mine for this month in return for fifty Dinars, and
should you decide to stay beyond the agreed duration, a
new rent shall be fixed”, the ijarah for the first month shall
be in order, whereas that for the remaining period shall be
unsound.
This is so, if the transaction was reached under the banner
of ijarah. However, it could be handled according to other
areas of dealings, the details of which we are not
concerned with right now.
* Suppose the rented property was damaged; who is
going to be held responsible?
- If the damage was not brought about by the tenant’s
negligence or his deliberate action, he should not be held
responsible.
* What are the rules on leasing a vehicle?
- The two parties to the agreement must make clear the
avenues of using the vehicle. That is, if it was for
passengers, for transporting goods, or for both; in short,
you have to determine the object of use.
```

## PDF PAGE 163

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163
* Suppose a van was hired to transport unslaughtered
carcasses destined for non-Muslims. Would the ijarah still
be valid?
- Didn’t I mention to you earlier that renting a place to sell
alcoholic drink was not allowed. [By the same token, the
case of the van is not allowed].
* An agent was authorized to hire workers for a specified
wage. What if the agent hired the workers for less?
- It is haraam for the agent to pocket the difference. He
has to return the extra money to the owner.
* The owner of a property hired a decorator to redecorate
his house, setting the specifications and the colour of the
paint. The painter chose, without consulting the owner, to
carry out the job using a different colour. Would the terms
of ijarah still be valid?
- The decorator shall not be entitled to a wage.
* Could you tell me about key money, or premium?
- Key money or premium is of different types:
Some of which is an agreement between the landlord and
the tenant, stipulating that the landlord receives a
specified sum of money in return for giving the right of
use of the property after the lapse of the duration of lease,
for an annual premium or that which is equivalent to the
annual rent that is generally accepted.
If the deal is so concluded, the tenant shall have the right
to keep possession of the property, after the completion of
the duration of ijarah in exchange for the agreed sum. He
also has the right to sublet the property to a third party for
an agreed premium. It is not necessary for him to obtain
the permission of the landlord.
* Suppose a person gave another a free gift, should there
be, from a shari’a perspective, any conditions attached?
Yes, the party who gives the gift should be adult, sane,
intent on giving the present of his own accord, not
coerced, and should not be legally incompetent. If this
```

## PDF PAGE 164

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was the case, the gift given shall be valid. The same goes
for a gift made by a terminally ill person. After his death, it
can be granted, but by a ratio not exceeding the third. If,
however, more was decided to be given away, the
approval of the heirs must be sought.
Giving away a gift is a kind of contractual obligation. It
requires an offer and acceptance. However, it suffices to
carry out by word or deed. It also requires taking
possession, by the recipient, of the thing given by way of
gift, if it was not already in his possession.
* What if the gift was not with the recipient, i.e. it was still
with the donor?
- The gift remains among the possessions of the owner
until the recipient takes possession thereof during the
lifetime of the donor.
* How can one take ownership of, say, a house that was
donated?
- If the donor parts with the property by vacating it and
handing it over to the recipient of the gift, this is deemed
legally valid.
* In the event of the death of the donor or the recipient
before the actual process of handing over and receiving of
the gift, what will happen?
- The granting of the gift can no longer be sustained; it
would be rendered invalid and the thing intended for
granting reverts to the heirs of the giver.
* If I find lost property, what should I do with it?
- You could deal with it according to the following:
1. Should there be no indication as to the owner’s identity,
making it difficult to trace them, you may keep the find for
your self.
2. If the object found bears an identification of the owner,
and it is less than Dirham Shar’i (12.6 chickpeas of minted
```

## PDF PAGE 165

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165
silver, i.e. 2.419 gms) in value, you should not trace the
owner. [However, you cannot keep it for yourself either.
Rather, you give it away to the poor by way of charity].
3. If the article found bears the details of the owner and
that it is one Dirham or more in value, every attempt
should be made to trace the owner, by way of public
announcement, and hand it back to them. If all attempts
came to nothing, and one year had passed from the date
the object was found in the precinct of Mekkah, [it should
be given in charity on behalf of its anonymous owner]. If it
was found in any other place, the person who found it can
choose between either keeping it safe for the owner, and
can make use of it, or give it away as charity on behalf of
the owner. [They cannot, though, assume ownership of
the asset at all circumstances].
* Suppose the thing found was a collection of currency?
- If you can trace the owner through certain characteristics
of those currencies, their numbers, particular time or
place, they should be publicly announced to try to trace
the owner.
* If someone claimed that they belong to them?
- If they are known to be truthful, they should get back
what they lost . If, however, the manner in which they
gave a description of the currency leads to gaining your
trust, you should give them back what is rightfully theirs.
* You mentioned the word “trust”. Should they not attain
your trust that they were genuine in what they claimed,
would it suffice to part with what you have found?
- Making an assumption about the claimant is not
sufficient to give away the article found.
* This was the injunction regarding articles found. What is
the position of a person who confiscates the possessions
of others through aggression and usurpation?
- Usurpation is among cardinal sins. He who usurps other
```

## PDF PAGE 166

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people’s property will be chastised severely on the Day of
Judgement. The Messenger of God, Mohammad (s.a.w.)
said, “He who usurped an inch of land, Allah shall, on the
Day of Judgement, throw a ring, whose weight is akin to
that of seven globes, around his neck.”
The usurper should return to the victim all that was
unlawfully taken away from them.
* If the usurped property was returned to its lawful owner,
would this absolve the perpetrator from the guilt?
- No, he should be penalized by forcing him to pay rent for
the use of the property for the period it was at his
disposal.
* Is this so, even though the usurper did not live in the
property?
- Yes, he should be made to pay compensation to the
rightful owners, because he caused them financial
damage by debarring them from making use of their
property. Thus, the usurper should be held liable.
* Suppose someone usurped a plot of arable land; he then
cultivated it. What would the position be?
- The usurper must remove his plantation immediately. He
should pay compensation to the owner of the land,
equivalent to the part he cultivated. If, however, the
removal of plantation caused depreciation in the price of
the land, the usurper should be made to compensate the
owner pro rata. This should be the case, if the usurper did
not reach a settlement with the owner of the land to keep
possession temporarily for a rent or for free.
* If the thing that was unlawfully acquired was
inadvertently damaged in the process of usurpation, who
will be held responsible?
- The usurper should compensate the owner the
equivalent value of the property that was unlawfully
seized, and an estimated sum of money for all the returns
that could have been made had the usurped property
```

## PDF PAGE 167

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remained in the ownership of the lawful owner.
* How is the compensation amount calculated?
- That which is usurped may fall into two categories:
1. Nonfungible things, or that which cannot be replaced
(qeemi). It is that which has no exact attributes, such as
cattle and sheep. The owner must be compensated the
value of this type of livestock at the time they were killed.
2. Fungible (or replaceable things). This is the type of, say,
produce that the usurper can pay back in kind, such as
wheat and barley, provided that the compensated amount
equates with the seized one in weight and quality.
* Should an unlawfully seized property be taken away by a
second usurper and damaged in the process, who should
be liable?
- The rightful owner can demand either usurper to hand it
back in kind or the value thereof as the case may be.
However, the second usurper has no right to go back to
the first usurper.
* If it came to the knowledge of the owner that his
property was with the usurper, what should he do?
- He has the right to repossess it by force if need be.
Moreover, if he lays his hands on a property that belongs
to the usurper, he can take it away in replacement of the
usurped property, provided that it was of the same value.
* Should the value of articles taken away from the usurper
be more, what should the owner do?
- It is permissible for the owner to take a portion that is
equivalent to the property that was unlawfully seized
from him.
* Before you wind up today’s dialogue, can I make an
observation?
- By all means.
* Very often, I notice that you give money in charity.
```

## PDF PAGE 168

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- Yes, but how come you have noticed that, for when I give
sadaqah I do it discreetly so that I am not seen by others.
That is because it is more meritorious when voluntary
sadaqah is given in secret, rather than in public.
* What is the aim behind giving charity?
- The main objective should be carrying favour to Allah,
the Exalted.
* Does it have a set time?
- No, but it is mustahab that you give it away early in the
day, for this would drive away the evils of that day. And
paying it during the early evening would drive away the
evils of that night.
Giving sadaqah is rated among the most meritorious
deeds. Tradition abounds with narrations, encouraging
the faithful to do it very often, so long as they can afford
it. Giving sadaqah may contribute to alleviating sickness,
driving away tribulations, increasing sustenance, repaying
debt, and it is an all round enrichment to one’s means.
However, notwithstanding all these merits, looking after
one’s family and kin remains a superior deed. And giving
sadaqah to a needy relative who shows enmity towards
you is more commendable than giving it to another
relative who does not. Far superior still is lending money.
```