SHARI’AH COMPLIANT BUSINESS CAMPAIGN - 2006
EDITED VERSION OF TRANSCRIPT OF TALK BY
MUFTI EBRAHIM DESAI
Khutba Masnoon
‘Fear that day that you will be returned to
Allah and every soul will be given complete whatever it has earned and they will
not be oppressed.’
Hadith
Transliteration: al-tujjaar yuhsharoona yawmal qiyaamat fujjaaraa illaa
manit-taqaa wa barra wa sadaqa.
We are the Ummah of Rasulullah [sallallaahu alayhi
wasallam] and we have the honour of being the greatest Ummah. One very
outstanding feature of Islam is balance, justice and equity. This balance,
justice and equity of Islam is found in every aspect of our lives be it in the
domestic aspect of our lives, be it in social aspect of our lives, be it in the
economic aspect of our lives, or be it in the political aspect of our lives. In
the domestic aspect of our lives, the mother has a right , the father has a
right, the husband has a right, the wife has a right, the children have rights
and all relatives also have rights, but everyone’s rights are in proportion to
their status and position. The mother does not have so much rights that the
father’s rights are neglected. The father does not have so much rights that the
mother’s rights are neglected. Similarly, the parents do not have so much of
rights that the rights of the wife and children are neglected. Everyone has been
given rights according to their status and position. It is this balance, just
and equitable system in Islam that makes all the aspects of our life so
comprehensive, so wholesome and successful.
If we interfere with this wholesome system, for example, in the domestic life,
if the father is given so much rights that the rights of the mother are
neglected or parents are given so much rights that the rights of the children
are neglected or the rights of the relatives are neglected, then this will
create an imbalance in the entire domestic system. It is only when we uphold the
rules and principles of balance, justice and equity in our domestic lives will
we find peace and happiness in it.
Similarly, this outstanding feature of balance, justice and equity of Islam is
found in business and economics. If we uphold this balance, just and equitable
economic system in Islam, we will enjoy a balance, just and equitable
distribution in wealth. If we don’t uphold the just and equitable economic
system in Islam, then we will suffer an unjust distribution of wealth. The rich
will become richer and the rich will abuse the wealth of the poor.
There are many differences between the Islamic economic system and the
capitalist system. The fundamental difference between the Islamic economic
system and capitalist system is interest. Islam prohibits interest and
everything related to it. There is no scope whatsoever for interest in Islam.
The capitalist system only depends on interest which is a clear economic
injustice. Consider this example:
A rich merchant takes loan and benefit tremendously from depositor’s money. The
depositors only get a small share of the return. For example: 10 people
deposited R100,000 each in the bank at 10% interest return. One merchant took a
loan of R1million at 15%. He uses the R1million and makes a 100% profit. He has
to return R1million and R150,000. He has for himself R850,000. The bank will get
R50,000 and each depositor will earn only R10,000. Look at the disparity, the
depositors get only 10% through their money and the borrower gets 85% from the
depositor’s money.
As Muslims, we do know interest is Haraam, but if we have sufficient knowledge
of the background of the prohibition of interest and the core principles of
interest, then it will be easier for us to abstain from interest.
Interest was prohibited in the eighth year after Hijrah. There are 8 verses
regarding the prohibition of interest in the Qur’aan. They are six verses of
Surah Baqarah and two verses of Surah al-Nisaa.
It is interesting to note that the last verse revealed upon Rasulullah [sallallaahu
alayhi wasallam] was regarding interest. Hadhrat Abdullah ibn Abbaas [radhiallaahu
anhu] narrates that the verse
‘Fear that day that you will be returned to Allah and every soul will be given
complete whatever it has earned and they will not be oppressed.’
was revealed 9 days or 31 days before the demise of Rasulullah [sallallaahu
alayhi wasallam].
The fact that Wahy and revelation terminated with the verse of interest and
warning us against interest and conscientising us on the day of judgment
emphasises to us the abhorrence of interest and the need for us to abstain from
interest.
There were two tribes among the Arabs, the Banu Makhzoom and Banu Saqeef. They
used to take loans from each other and repay on interest. When the Banu Makhzoom
accepted Islam, they refused to pay the interest due to the Banu Saqeef. The
matter was referred to the Governor of Makkah Mukarramah, Hadhrat Mu’aadh [radhiallaahu
anhu] or Itaab ibn Usayd [radhiallaahu anhu] who then referred the matter to
Rasulullah [sallallaahu alayhi wasallam]. Allah Ta’ala revealed the verse,
‘Oh you who believe, fear Allah and leave that which remains of interest if you
(truly) believe.’
Oh you who believe, fear Allah and leave that which remains from Ribaa if you
truly believe. If you do not do that, then be informed of a war from Allah and
His Rasul.
A person engaged in interest can never ever succeed. The temporary relief
actually serves to compound his problems.
Nevertheless, the tribe of Banu Saqeef who were non-Muslims, felt prejudiced by
this ruling as the tribe of Banu Makhzoom owed them interest. It was upon that
Rasulullah [sallallaahu alayhi wasallam] announced,
Hadith transliteration: awwal ribaa mawdhoo’ fil Islaam, ribaa Abbaas ibn Abdul
Muttalib
the first interest to be wiped out in Islam is the interest due to Abbas ibn
Abdul-Muttalib, the uncle of Rasulullah [sallallaahu alayhi wasallam]. He used
to offer loans to people on interest.
The Muhadditheen and Mufassireen record that the interest due to him was 10000
dinars. A dinar is a gold coin. One dinar is 4.4 grams. 10,000 dinars is
equivalent to 44kg of Gold. In today’s value, 1kg of gold is approximately,
R1million. 44 kilograms will be approximately R44million. A conservative figure
is R40million. If we consider the inflation rate of 1400 years with R40million,
one could purchase on great portion of the Arab peninsular, but Rasulullah [sallallaahu
alayhi wasallam] forfieted that amount to serve an example to the Ummah of
forfeiting and abandoning interest.
I wish to discuss two technical aspects regarding interest:
a) Offsetting of interest in one bank and offsetting of interest in different
banks
If a person has a savings account in, for example, FNB and he earns interest in
that bank. He also uses other facilities of the Bank and is charged for that.
The question is can he offset the interest earned with the interest charged of
that bank? Furthermore, what if the banks are different? For example, if a
person has a savings account in FNB and earns interest on that. He also uses the
facilities of Standard Bank and is charged for that. Can he use the interest
earned from FNB and pay interest charged by Standard Bank?
At the outset, I must state that it is not permissible for a person to
deliberately earn interest. A conventional bank is used only as a necessity. A
person needs to safekeep his money or use the other facilities of the
conventional bank and because there is no alternative, the Ulama have permitted
the use of the conventional banks. The principle in Shari’ah is that if anything
is prohibited and if there is a relaxation on that prohibition, based on
necessity, then one could use the relaxation only to that extent. It is not
permissible to make use of the facilities of a conventional bank more than our
need.
Interest is prohibited. There is no relaxation on that. Therefore, it is not
permissible to deposit one’s money in a conventional bank specifically to earn
interest. We could make use of the other permissible facilities of a
conventional bank.
However, if one earned interest unintentionally, then that interest should be
disposed off. If one has interest in FNB and has to pay interest to FNB, can he
offset the interest against the interest? This would be addressed from two
angles.
It is always ideal to adopt Taqwa in our dealings and accordingly, pay the bank
charges with our own money.
However, from the Fatwa and principle point of view, it is permissible to offset
interest against interest if both are from the same avenue and institute.
The reason behind the ruling is that one should return the interest from
wherever he got it. When one is entitled to interest from FNB, one is giving it
back to FNB. The bank is now not charging interest. That is the Bank’s right and
prerogative. This interpretation cannot be give if the Banks are different. If
one receives interest from FNB, he has to pay Interest to Standard Bank. He
cannot give the interest of FNB to Standard bank.
b) Offsetting interest with personal money
Another query we often receive is, if one has interest in a conventional bank,
he has to dispose of it. Is it necessary to physically remove the interest from
the bank and dispose of the interest or could the equivalent of the interest
money be paid from one’s own money and regard the interest in the bank to be
pure money?
The answer to this is the interest from the bank must be physically taken out
and disposed off. One cannot leave the interest there and pay the equivalent
interest amount from one’s personal money and regard the interest to be pure.
The rationale behind this is the amount owed by the bank is Dayn – a debt. If
the money in the bank gets lost or stolen, the bank will still owe that money
and one has a legal claim to that money. Furthermore, the interest owed is
Haraam money. It cannot be said that the interest in the Bank is the same as the
money in one’s possession. They are two different components. It, therefore,
cannot be said that the payment of one’s personal money is in lieu of the
interest in the Bank. The interest from the Bank must be physically taken out
and disposed off separately.
Point 2 - Difference between profit and interest
The reason for addressing this issue is that many people have difficulty in
differentiating between an excess in a profit and in interest. They say the
outcome is the same whether it is called profit or whether it is called
interest, it is an excess.
It is important to understand that in Shari’ah, two things are equally important
– procedure and outcome.
It is not only buying the bread that is important. It is how you buy the bread
that is equally important. Let me give you an example: Rasulullah [sallallaahu
alayhi wasallam] was presented with a good date from Khaybar. Rasulullah [sallallaahu
alayhi wasallam] said, ‘Are all the dates of Khaybar same?’ Abu Hurayra [radhiallaahu
anhu] said that we exchange one Saa of good dates for 2 Saa of lower grade
dates. Rasulullah [sallallaahu alayhi wasallam] said, ‘No, do not do it that
way. Sell the dates and with the money buy the other dates.’ See here. The
outcome is the same. The good dates are disposed and other dates acquired. But
Rasulullah [sallallaahu alayhi wasallam] objected on the procedure. Had it been
a direct exchange, it is Riba. If it is sold, the excess is profit.’
Before I explain to you the difference between a profit and interest, I first
want to explain to you the concept of Muraabaha. Muraabaha is to sell an item on
profit and refer to the cost. For example, I bought a Toyota Camry for R30,000
and I am reselling it at R35,000. In brief, in Muraabaha one refers to the cost
of the item. If one does not refer to the cost of the item and sell it at a
profit, it is Musawwamah.
Muraabaha could be a cash deal or a credit deal. The profit in a cash deal could
be higher that the profit in a cash deal, for example, if I sell my Camry for
Cash, it will be R30,000. If it is on credit, it will be R35,000.
Many people query the difference between the higher profit in a credit deal and
interest. It appears that in both (profit and interest), the excess amount is in
lieu of time and that is no different from interest. It must be noted that there
is a difference between the excess amount in a credit deal and interest. In a
credit deal, the excess amount finally will be in lieu of an item and not in
lieu of time. Yes, the price of the item is increased due to a credit payment
but the excess is not in lieu of time. In interest, the excess is only in lieu
of time and not in lieu of an item. It must also be pointed out that Shari’ah
permits to raise the profits of an item due to many reasons, for example, the
quality of the item is better, the price will be better. If an item is sold
nearby, it is higher. Similarly, the price of an item could be raised due to
deferred payments.
Point 3 - Options
According to the Shari’ah, there are five types of options:
1. Khiyaar-e-Shart (option to purchase or sell): When a person intends to
purchase an item or sell an item and he is not sure, if he concludes the deal he
will regret. In that instance, if a person wishes to purchase or sell an item,
but he is not sure, he can exercise an option to purchase the item or sell the
item within 3 days. If he does not want to purchase the item or sell the item,
he must inform his counterpart. If he does not inform his counterpart, the deal
will be concluded and binding.
2. Khiyaar-e-Rooyat (option of seeing): If a person purchased an item he did not
see, he has an option upon seeing the item. If he is satisfied that the item is
according to the description or advert, then he takes the item. If he is not
satisfied, he can return the item.
3. Khiyaar-e-Ayb (option of defect): If a person purchased an item which has a
defect, he has a right to return the item. However, if the seller sold the item
‘as is’ which is generally understood as ‘voetstoets’, then the purchaser cannot
return the item due to a defect. However, if there is a hidden defect in the
purchase item and the seller is aware of it, he should be honest and divulge
that information to the purchaser. Waasila ibn Asqa states, I heard Rasulullah [sallallaahu
alayhi wasallam] saying, ‘If a person sold an item and there is a defect in the
item and he did not inform the purchaser of the defect, he will remain in the
anger of Allah.’
4. Khiyaar-e-Ghabn (option due to deception): If a purchaser was deceived in a
transaction, he has a right to return the item.
5. Khiyaar-e-Faskh (option of cancelling): At times, people sell items on credit
and the purchaser does not honour the payment. This puts the seller into
difficulty as the sold item does not belong to him, and he has not received
payments for the sold item. As an alternative, the seller could put a condition
that if you do not pay within 3 days, the deal will be cancelled. The seller
will retain his item and does as he pleases. This is also the alternative for
mortgages that serve to be a means of security for payments.
Point 4 Suspensive Sales and Future Sales
According to the Shari’ah, a sale is concluded with a proposal and acceptance
both in the past tense or in the present tense or one in the past tense and the
other in the present tense. For example: I wish to sell you my car, I tell to
you, ‘I have sold my car’. That is past tense, or ‘I am selling you my car’.
That is the present tense. In response, you say ‘I have purchased your car’.
That is the past tense or ‘I am purchasing your car’.
Once there is this exchange that both the seller and purchaser exchanged words
in the past tense or present tense or one in the past tense and the other in the
present tense, then the deal is concluded.
There is a common misconception that a suspensive deal is a legitimate deal in
Shari’ah. A suspensive deal is where a person suspends his intention to sell or
purchase on a future event. For example: I intend selling my house and you have
decided to purchase the house. I put a condition that the sale will be through
only if I found another house. Here, the person suspended the sale of the house
on a future uncertain event. Similarly, a person has decided to sell his house
and the purchaser intended to purchase the house. All the terms and conditions
of the sale are in place. The purchase price, the mode of payment, etc. but the
seller puts a condition of getting another house. There is no certainty here,
whether the seller will find a house or not. In this case, the deal is suspended
and not legitimate in Shari’ah. Similarly, if a purchaser puts a condition that
if I get a loan from the bank, the deal will be through. Here, he has suspended
the deal on a future uncertain event. He does not know whether the Bank will
approve the loan or not. He may have an idea or is almost certain, but the fact
is he has suspended the deal. As such, the deal is not concluded. The proof is
that the house is in the risk of the seller. If the house gets destroyed or
burnt, it will be the seller’s loss and not the purchaser’s loss.
The basis for this prohibition is the Hadith of Rasulullah [sallallaahu alayhi
wasallam]:
Rasulullah [sallallaahu alayhi wasallam] prohibited a sale based on Gharar
(uncertainty) and the sale of Hasaat
Gharar is a sale based on uncertainty. This uncertainty is found in a suspensive
sale.
Rasulullah [sallallaahu alayhi wasallam] also prohibited the sale of Hasaat.
That is a type of sale done during the time of Jaahiliyyah. A consumer would
come, pay a fee and he or the seller would throw a pebble on any item of the
shop. The seller or consumer does not know where the pebble will fall. If the
pebble fell on something expensive or cheap, the consumer would be entitled to
it.
Today, that is practised in the form of machines and toys. An amount is put in
and one does not know which toy the machine will pick. This is not permissible.
I also want to discuss future sales. A person sells his house to a person on a
future date, for example, end of August. The purchaser agrees to that and the
deal is concluded. At most, the deal will be regarded as a promise which is only
morally binding. The reason for this prohibition is that this is a credit deal
in exchange of a credit deal. Example: A owes B R100,000 for the house in
future. B owes A the house in future. This is a credit deal in exchange for a
credit deal which is prohibited. Rasulullah [sallallaahu alayhi wasallam] said
I also want to address the issue of occupational rent. Once the deal is
concluded, it is not suspended or it is not a future sale. The only that is left
is the transfer of the title deal, the seller cannot claim occupational rent
from the purchaser. The house now belongs to the purchaser. Why should he pay a
rental? As an alternative, the purchase price may be inflated to take care of
delayed transfers.
Point 5 - Investment Schemes and Bond
Last year in our Business campaign, I briefly discussed the issue of bonds. One
person came up to me and stated the bonds is based on interest and I should
clarify the issue. There are two types of bonds. One is a conventional one which
is based on interest. When somebody needs money, for example, R100,000, then
certificates of R10,000 are made and sold. The R10,000 certificate is then sold
for a higher amount, for example, R12,000. The R2000 excess is interest.
The alternative to that is if someone wants to purchase a property worth
R100,000. He gets into a partnership with ten people and purchase a property.
Each shareholder will receive a certificate of R10,000 representing his share of
the property. Since the R10,000 represents a share in an asset, that could be
sold at a profit. The person cannot sell the R10,000 certificate at a profit
before purchasing the property except on par value.
Point 6 – Ijaarah (Hiring)
Generally, there are two types of hiring:
1. Hiring the services of people as in the case of employees, doctors,
professionals, etc.
2. Hiring the benefits of an item, for example, hiring a house, property, etc.
The general rule in Ijaarah is all the issues must be addressed and clear. There
should be no ambiguity that will lead to a dispute. If there is any issue that
is not addressed and will lead to a dispute, the hiring contract will not be
permissible. In rentals, it is permissible to escalate future rentals on
condition they are specific, for example, I hire my property and for the first
year, the rentals will be R5,000, then there will be an escalation of 10% in the
second year, 20% in the third year, etc. It is correct to escalate the rentals
according to the IPSI method on condition there is a cealing to the IPSI method.
Subleasing
If a person has hired a property, he cannot sublease it without the consent of
the landlord. If the landlord permits to sublease, he can do so. In that
instance, the rental of the subleasing must be the same as the original rental.
It cannot be more. However, if the lessee makes some change to the property, by
including a permanent feature in the property, then he can charge a higher
rental.
Point 7 - Dogs
The issue of security of dogs has become very important issue due to the high
crime rate and dogs are an ideal deterrent for crimes. In the pre-Islamic era,
the people were very very close to dogs. Dogs are a creation of Allah and they
also have a role to play. Rasulullah [sallallaahu alayhi wasallam] wanted to
create an adjustment regarding dogs in the hearts of the Sahaaba [radhiallaahu
anhu]. He stated the saliva of a dog is impure, etc. If it drinks from a
utensil, the utensil must be washed 7 times.
The Sahaaba [radhiallaahu anhu] understood the purpose of Rasulullah [sallallaahu
alayhi wasallam] and adjusted their relationship with dogs. It is not
permissible to keep dogs as pets. However, it is permissible to use dogs for
hunting purposes. This is clearly mentioned in the Qur’aan. It is also
permissible to keep dogs for security purposes. It is also permissible to
purchase and sell hunting and security dogs. A CCTV camera is also permissible
for security purposes.
Point 8 - Crime
Respected elders and friends, everyone of us complain of crime. There are
different types of crimes and different causes. In a meeting with Minister Pahad,
he clearly stated that Government alone cannot combat crime. The citizens should
also do something.
Respected elders, one of the causes of theft and crime is poverty and hunger. If
a person does not have food to eat, water to drink, he is starving, what do you
expect him to do. Desperation drives a person to commit crime. In fact, you will
be surprised to learn that if a person is so hungry that his life is at stake,
and there is no way to obtain food but to steal, then he will be excused for
stealing. Yes, the law will take its course thereafter but the person must save
his life, he should not die. One Sahaabi [radhiallaahu anhu] was caught throwing
stones on another Sahaabi’s date orchard, the owner took the Sahaabi [radhiallaahu
anhu] to Rasulullah [sallallaahu alayhi wasallam] and asked him why did he do
that. The Sahaabi said, ‘Joo (hunger), O Prophet of Allah.’ Rasulullah [sallallaahu
alayhi wasallam] told him, ‘May Allah fill your belly. Eat the fruits on the
ground and don’t throw stones.’ (Tirmidhi)
One of the ways of combatting crime that emanates due to hunger and desperation
is Sadaqah and charity. We give our Zakaat. That’s not enough. Businessmen
should put systems in place and feed people daily. All that is needed is just
one loaf of bread and some beans and fish. If all the Muslim families in South
Africa undertake to do this on a daily basis, we could make a huge difference.
It is barely R20 from your own expenses. The need of thousands of people will be
taken care of and bring some stability in our lives.
Remember, whatever we give to the poor and needy, we are doing it for our
ownselves. At the end of the day, we will also benefit when there is stability.
It is also important that everyone undertake to do this themselves rather than
appointing others to do it. The act of seeing the poor and feeding them has a
tremendous spiritual impact. We start appreciating the bounties of Allah upon
us.
We should also reflect on our source of earnings and income. What comes the
Haraam way will go away the bad way. One person used to sell milk and add water
in it. After making lots of money, he was going home. He had to cross a river.
The baboon opened the bag and threw one coin to the person and one coin in the
water until the person got only ½ the amount of coins, the other ½ went back
where it came from – the water.
Point 9 - Short Sales and its alternative
Short sales is to sell an item which is not in one’s possession. Rasulullah [sallallaahu
alayhi wasallam] said
‘Do not sell an item before taking possession.’
The reason for this prohibition is in a purchase and sale agreement, the seller
must bear the risk of the item by possessing the item. If the item is lost or
destroyed, he won’t be responsible. There won’t be any loss to him. When the
seller sells the item, the profit is because of the risk he has undertaken.
Secondly, the seller must be able to hand over the sold item upon demand. If he
has no physical or constructive possession of the item, he will not be able to
hand over the sold item to the purchaser. There is a new concept that has
commenced known as dropshipping. It is generally used in internet transactions.
This is how it will work:
I obtain an order for you in anything, fabric, hardware, etc. and you to pay the
money to me. I search for the item and have it delivered to you. In principle,
the money given to me will be an Amaanat, a trust. The deal is not concluded at
this state. When the item reaches you, then the deal between you and I will be
concluded. If the item does not reach you, it gets lost, etc. then that is the
suppliers loss and I will have to return your money.
Point 10 - Estates
Shari’ah has placed great emphasis on inheritance and the rights of heirs. It is
unfortunate that there is gross negligence regarding issues of inheritance. This
is also among those who are regarded to be pious. People perform 5 times Salaat,
give Sadaqah and do all acts of piety but fail in issues of inheritance.
According to the Shari’ah, to discharge one cent due to a person is better than
to give one’s entire wealth in charity. A person was once in his death bed and
his pious friend came to meet him to pay respect to him. This was at night and
the lantern was the source of light. During the visit, the person passed away.
The pious visitor immediately put off the lantern and stated that while the
person was alive, the oil in the lantern belonged to him. Now that he passed
away, it belongs to his heirs. We cannot use the oil without the prior consent
of the heirs.
When a person passed away, first and foremost, his burial expenses will be paid
from the estate. Secondly, his debts will be paid. Third, his bequest will be
fulfilled only from 1/3 of the estate after the burial expenses and debts. If a
person made a Wasiyyat of his unfulfilled Fardh Salaats, unkept fasts or
unfulfilled Fardh Hajj, then that will be included in the Wasiyyat. The amount
for an unfulfilled Salaat is equivalent to Sadaqatul Fitr. That is approximately
R10. If a person did not perform Salaat for a full day, he has to pay R60. If he
didn’t perform Salaat for 1 month, that is R1,800. For 1 year, the amount will
be R21,600. For 5 years, it will be approximately R100,000
Brothers, take care of yourselves. When one dies, the heirs won’t care about
your Qabr and Aakhirat. They are worried about the wealth and inheritance. It is
only after these three procedures, burial expenses, debts and bequests that the
heirs have a right.
Respected friends. It is not possible for me to cover all the issues of
inheritance. I will deal with some issues of inheritance, especially, those
related to business.
a) Distributing wealth during one’s lifetime
It is permissible for a person to distribute his wealth during his lifetime. He
does not have to follow the laws of inheritance in that. As a general rule, he
has to maintain equality among his children – males and females – when
distributing his wealth to them during his lifetime. Every child wants to be
treated equally by his parents. If there is inequality done, that leads to
animosity and ill-feelings. If a parents has some sound reason to give
preference to one child over the other, in distributing his wealth, he should
have that approved by the Ulama.
b) What forms part of the estate?
Upon death, every item from pin to property that belonged to the deceased forms
part of the estate and is subjected to the laws of inheritance and succession.
Every heir will be entitled to every item according to his/her share. For
example: a person leaves a house, or vehicle or furniture. He is survived by his
wife and children. His wife is entitled to 1/8 of his estate. That is she is
entitled to 1/8 in the house, in the vehicle and in the furniture.
c) Things excluded from the Estate
Haraam wealth does not form part of the Estate. If one stole or usurped
somebody’s wealth or earned wealth in a Haraam way, for example, through
gambling, all that do not form part of the estate. If the owner of the Haraam
wealth is known, the wealth must be returned to him. If the owner is not known,
then the money is Waajibut-Tasadduq. It is compulsory to dispose off that wealth
by giving it in charity to the poor and needy.
d) Clothing of the deceased
There is a general malpractice in giving away the clothes of the deceased in
charity. This is not permissible without the consent of all the heirs. If the
heirs are minors, then the clothes must be valued and the share of the minors
from the clothes must be kept in trust.
e) Will and Marriage Contracts
According to the Shari’ah, whatever belongs to the husband belongs only to him.
The same goes with the wife. The concept of community of property is incorrect.
If anbody dies leaving such a marriage contract, the spouse should fear Allah
and take only what is entitled to them and give the rest to the heirs. The only
marriage contract in law that is compatible and accepted in Shari’ah is ANC
without the accrual.
f) Staying in Estate Property
It is not permissible for an heir to live in an estate’s property without the
consent of all the heirs. The heirs have a right to a fair rental from their
share. It is a norm that if a son or daughter was staying with the parents in
their house, upon the demise of the parents, they continue staying in the house.
They feel they have a moral right to stay there as the parents permitted them to
stay. The heirs also consider the sentimental value of the house and the parents
wish and don’t claim rent or distribution of the house. Generally, the family
member that occupies the house plays with the emotions of the heirs and make
them feel guilty. According to the Shari’ah, this is wrong. All the heirs own
that property and are entitled to distribution or rentals according to their
share.
g) Business of the Deceased
When a person passes away, all the heirs become entitled to a share according to
the Shar’ee laws of inheritance. They do not become automatic business partners
in the business. Partnership is only through contract. The heirs should evaluate
the business by taking stock of the business. All the heirs should be paid out
by mutual agreement.
h) Continuing the Business
If some heirs continue with the business, then there are two situations, the
controlling heirs took permission to run the business or not. If they took
permission, then the heirs share will be regarded as a loan. They will not be
entitled to a profit from the business as that will be riba. If they did not the
consent of the heirs, then it was incorrect for the controlling heirs to
generate profit from the other heir’s share of the inheritance. The profits will
not belong to anyone. It must be given in charity.
i) Trust Deed
Many people get confused between a Trust Deed and Waqf. A Trust deed is not Waqf.
If a person has made out a trust deed, it must be according to the Shari’ah laws
of inheritance. Any proceed from a trust will be distributed according to the
Shari’ah laws of inheritance.
There is a common error in bequeathing an item, house, car, etc. for an heir,
for example, the wife. According to the Shari’ah, a bequest cannot be made for
an heir. If the Trust has become operational after the death of one’s person,
the bequeathed house will be part of the estate. If the Trust was operational
during one’s lifetime, then the laws of gifting must apply. The house or vehicle
must be given as an outright gift to the person.
j) Insurance policies
All conventional insurances are Haraam. They have in them an element of
uncertainty, gambling and interest. Only the premiums form part of the estate.
The excess amount is Waajibut-Tasadduq.
k) Pension Fund
If the deceased had a pension fund, and received the payout during his lifetime,
then the entire amount will form part of the Estate. If he did not receive a
payout, then whoever was nominated as the beneficiary will be the owner of the
payout. That amount will not be part of the Estate.
Point 10 - Conclusion
As Muslims, we should remember death, life after death and accountability to
Allah. Don’t spoil our Aakhirah for a few coppers.
Allah gave us wealth, use it to fulfil your needs and most importantly to
advance the cause of Deen. There were two people stranded in the jungle. One was
blind and the other cripple. Both could not move. They decided that the crippled
person climb on the back of the blind person. In that there was benefit for
both. The cripple person is assisted with the legs of the blind person and the
blind person is assisted with the eyes of the crippled person.
Similarly, you have wealth, you have legs. Others have eyes but no legs. They
know where the wealth should be spent. They have insight. Let them jump on your
backs and guide you. The Hadith is clear, ‘What you spend in this world you will
get in the Aakhirah’. A trader who contributes gets great rewards in the
Aakhirat. He continues his business and Deen also prospers through him.
Rasulullah [sallallaahu alayhi wasallam] said, ‘Don’t close your tap, Allah
ewill close His tap from you.’
I conclude my talk sharing with you the last verse that was revealed upon
Rasulullah [sallallaahu alayhi wasallam]
‘Fear that day that you will be returned to Allah and every soul will be given
complete whatever it has earned and they will not be oppressed.’
Hadith Transliteration: al-tujjaar yuhsharoona yawmal qiyaamat fujjaaraa illaa
manit-taqaa wa barra wa sadaqa.
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