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Resolutions of
the Islamic Fiqh Council
during Its Fifth Session Held
between 8-16 Rabi Al-Aakhir 1402H
(2-10 February 1982)

 

The First Resolution
about Swearing by Torah/Bible
before Jury

All Praise be to Almighty Allah.
Blessing and peace be on His Prophet Muhammad
after whom there is no prophet, and on all those
who followed his way of guidance.

The Islamic Fiqh Council during its 5th session held between 8-16 Rabi Al-Aakhir 1402H (2-10 February 1982) looked into the question submitted to it about putting hand on Torah, Bible or both of them while taking oath before jury in non-Muslim countries where the judicial system stipulates it on the swearing person.

The Islamic Fiqh Council studied the views of the various Fiqh schools of thought on requirements of swearing in general and judicial oath-taking before the jury in particular.

The Council reached the following resolution:

1. The swearing must not be by anything other than Almighty Allah, as Prophet Muhammad (peace be upon him) said: “Whoever swears, he should swear by Allah or keep quiet.

2. Putting hand on Qur’an, Torah, Bible or other is not necessary for the validity of swearing however, for avoiding lie, the government can enforce it to emphasize the oath.

3. For a Muslim, it is not lawful to put his hand on Torah or Bible while swearing, because their present editions are distorted. They are not the original books, which were sent down to Prophet Moses and Prophet Jesus (peace be upon them) and also because Islamic Shari’ah, which was sent to Prophet Muhammad (peace be upon him) superseded all the other religious laws.

4. If the trial takes place in a non-Muslim country whose judicial system stipulates putting hand on Torah, Bible or both of them while swearing, then a Muslim must ask the court to allow him put his hand on the Qur’an. If the court did not respond positively to his request, he would be considered as if he has been forced in that case, he can put his hand on both of them or anyone of them without any intention of glorifying them.

Chairman, Islamic Fiqh Council
Abdullah Ibn Muhammad Ibn Humaid
President, Supreme Judicial Council
Saudi Arabia

Deputy Chairman, Islamic Fiqh Council
Muhammad Ali Al-Harakan
Secretary-General, Muslim World League

Members:
Abdul Aziz Ibn Abdullah Ibn Baz
General President, Research, Ifta, Da’wah and Guidance

Muhammad Mahmood Al-Sawwaf
Saleh Ibn Othaimeen
Muhammad Abdullah Al-Subaiel
Mabrook Al-Awaadi
Muhammad Shadhli Al-Neifer
Mustafa Ahmad Al-Zarqa
Abdul Quddoos Hashemi
Muhammad Rasheedi
Abul Hassan Ali Al-Nadwi
Abu Bakr Muhammad Joomi
Hasanain Muhammad Makhloof
Muhammad Rasheed Qabbani
Mahmood Sheith Khattab
Muhammad Salem Abdul Wadood

 

The Second Resolution
on Ihram from Jeddah for Those
Who Arrive from Other Places

All Praise be to Almighty Allah.
Blessing and peace be on His Prophet Muhammad
after whom there is no prophet, and on all those
who followed his way of guidance.
The Islamic Fiqh Council during its 5th session held between 8-16 Rabi Al-Aakhir 1402H (2-10 February 1982) discussed the issue of Ihram from Jeddah, which many of those who come to Makkah Mukarramah for Hajj or Umrah pilgrimage by air or sea, are forced to do, due to their ignorance of Miqaat prescribed by Prophet Muhammad (peace be upon him), who has made it obligatory to do Ihram from Miqaat for all those who reside here or pass through it in order to perform the pilgrimage of Hajj and Umrah.
After taking into consideration, all the textual provisions available in the Islamic Shari'ah in this regard, the Islamic Fiqh Council adopted the following resolution:

First:
Miqaats, which Prophet Muhammad (peace be upon him) has prescribed and made it obligatory to do Ihram for their residents and others, who pass through them in order to perform the pilgrimage of Hajj or Umrah are:

Dhul Hulaifah for people of Madinah Munawwarah and those who pass through it. This place is now called Abyar Ali.
Al-Juhfah for people of Syria, Lebanon, Jordan, Palestine, Egypt and Morocco as well as those who pass through it. This place is now called Rabigh.
Qarn Al-Manazil for people of Najd and those who pass through it. This place is now called Wadi Muharram and As-Sail.

Dhat Irq for people of Iraq, Khorasan and those who pass through it. This place is now called Al-Dhareebah.

Yalamlam for people of Yemen and those who pass through it.

The Islamic Fiqh Council decided that it is obligatory for those who have intention to go for Hajj or Umrah to perform their Ihram, while approaching by air or sea, the place that is parallel to one of the above-mentioned five Miqaats, and which is the nearest to them. If they are doubtful and do not find anybody, who can guide them to the parallel of Miqaat, they must be careful and perform their Ihram before Miqaat, thinking that they have done their Ihram before reaching the line that is parallel to Miqaat, because Ihram before Miqaat is permissible.

Muslim scholars in all schools of Islamic Fiqh have the clear view on the above-mentioned issue and narrated in this regard, the authentic Hadiths of Prophet Muhammad (peace be upon him) regarding Hajj and Umrah. They have also presented as proof, what is reported from Ameer Al-Momineen Omar Ibn Al-Khattab (may Allah be pleased with him), when people of Iraq told him: Miqaat of Qarn Al-Manazil is away from our way. He told them: See its parallel on your way.

The Muslim scholars have said that Almighty Allah has commanded his servants to observe Taqwa as much as they can do. This is what can be done for those who do not pass through Miqaat. When it is known to them, then, the Hajj or Umrah pilgrims coming by air or sea must not delay their Ihram till they arrive in Jeddah, because Jeddah is not among Miqaats prescribed by Prophet Muhammad (peace be upon him) for the Hajj or Umrah pilgrims.

Similarly, the person, who did not carry the Ihram garments, should not delay his Ihram till he reaches Jeddah, but it is obligatory for him to do Ihram in his trousers, in case, he did not have with him, an Izar, as Prophet Muhammad (peace be upon him) has been reported in a Sahih Hadith as saying: “Who does not find shoes, should wear socks and who does not find an Izar, should wear trousers.”

However, he must keep his head uncovered, because Prophet Muhammad (peace be upon him), when asked about what a Muhrim should wear? He said: “He should not wear shirt, turban, trousers, coat and socks except when he does not find shoes.” (Agreed upon)

For Muhrim, it is not permissible that he wears turban, cap or some other things used to cover the head. If he has a turban of a covering sheet, which he can use as Izar, he should use it as Izar, and in this case, he should not wear trousers. When he arrives in Jeddah, he must put off his trousers and replace it with an Izar if he can do so. If he did not have trousers and also did not have a turban which he can use as Izar, then, it is permissible for him, when he is on his way by air or sea and is in parallel to Miqaat that he should do Ihram with his (long) shirt, which he is wearing, however, he should keep his head uncovered. When he reached Jeddah, he should buy an Izar and put off his shirt and since he wore shirt, he will have to pay Kaffarah, that is to feed six poor persons as per the local standard, or to observe the fasting for three days, or slaughter a goat. He has the choice to do one of the three options as Prophet Muhammad (peace be upon him) had given the option to Ka'b Ibn Ajrah, when he permitted him to shave his head during his Ihram, due to the illness that he was suffering from.

Second:
The Islamic Fiqh Council assigns the MWL secretariat general to write to airline and shipping companies to inform the passengers before reaching Miqaat that they are shortly to pass Miqaat.

Third:
Sheikh Mustafa Ahmad Al-Zarqa, a member of the Islamic Fiqh Council differed in this regard. Sheikh Abu Bakr Muhammad Joomi, another member of the Council also differed on those who come from Sawakin to Jeddah only.

Chairman, Islamic Fiqh Council
Abdullah Ibn Muhammad Ibn Humaid
President, Supreme Judicial Council
Saudi Arabia

Deputy Chairman, Islamic Fiqh Council
Muhammad Ali Al-Harakan
Secretary-General, Muslim World League with reservation

Members:
Abdul Aziz Ibn Abdullah Ibn Baz
General President, Research, Ifta, Da’wah and Guidance

Muhammad Mahmood Al-Sawwaf
Saleh Ibn Othaimeen
Muhammad Abdullah Al-Subaiel
Mabrook Al-Awaadi
Muhammad Shadhli Al-Neifer
Mustafa Ahmad Al-Zarqa
Abdul Quddoos Hashemi
Muhammad Rasheedi
Abul Hassan Ali Al-Nadwi
Abu Bakr Muhammad Joomi
Hasanain Muhammad Makhloof
Muhammad Rasheed Qabbani
Mahmood Sheith Khattab
Muhammad Salem Abdul Wadood

 

The Third Resolution
on Timings of Prayer and Fasting
in Countries Situated on High Latitudes

All Praise be to Almighty Allah.
Blessing and peace be on His Prophet Muhammad
after whom there is no prophet, and on all those
who followed his way of guidance.

The Islamic Fiqh Council during its 5th session held between 8-16 Rabi Al-Aakhir 1402H (2-10 February 1982) reviewed the resolution of the Brussels Symposium 1400H/1980 as well as the resolution No. 61 adopted by the Senior Ulama Council in Saudi Arabia on 12th Rabi Al-Aakhir 1398H regarding the times of prayer and fasting in the countries where night is very short during certain period of year, and day is short in another period of year, or where sun continuously appears for six months and disappears for other six months.

After having studied the old and new writings on the issue by scholars of the Islamic Fiqh, the Council adopted the following resolution:

The regions which are situated on the high latitudes are divided into three categories:

1. Those regions whereas night or day continues for 24 hours or more according to variation of the year’s seasons. In this situation, timings of prayer and fasting would be calculated according to the nearest region where night and day are distinguished during the 24 hours.

2. The regions where the red light after the sunset continues until Fajr (dawn) and red light of sunrise is not distinguished from the red light of sunset. In these regions, timings of Isha (night prayer), Imsaak (start of fasting) and Fajr (dawn prayer) would be calculated according to time when the red light of sunset and sunrise are distinguished.

3. Those regions where night and day are distinguished during the 24 hours and where night is very long during certain period of the year and day is very long during another period of the year.

Those who reside in regions where night is distinguished from day through dawn of Fajr and sunset, and its day is very long in Summer and very short in winter, it is obligatory for them to pray five times which are well known in the Islamic Shari’ah as Almighty Allah says: “Perform As-Salat (Iqamat As-Salat) from mid-day till the darkness of the night (i.e. Zuhr, Asr, Maghrib and Isha prayers), and recite the Qur'an in the early dawn (i.e. the morning prayer). Verily, the recitation of the Qur'an in the early dawn is ever witnessed (attended by angels in charge of mankind of the day and the night).” (Qur’an, 17:78) He also says: “…Verily Al-Salat (the prayer) is enjoined on the Believers at fixed hours.” (Qur’an, 4:103)

Buraidah (may Allah be pleased with him) narrated that a man asked the Prophet (peace be upon him) about the time of prayer. Upon this he told him: pray with us these two, meaning two days. When the sun passed the meridian, he gave command to Bilal who pronounced Adhan (the call to prayer), then he commanded him so he pronounced Iqamah for Dhohr (noon) prayer. (Then at the time of afternoon prayer) he commanded him so he pronounced Iqamah for Asr (afternoon) prayer while the sun was high, white and clear. Then, he commanded him so he pronounced Iqamah for Maghrib when sun had set. Then, he commanded him so he pronounced Iqamah for Isha (night) prayer when the red light had disappeared. Then, he commanded him so he pronounced Iqamah for Fajr (dawn) prayer when the dawn had appeared. When it was the second day, he commanded him to delay the Dhohr (noon) prayer till the extreme heat had passed and he did so. He allowed it to be delayed till the extreme heat had passed. He observed the Asr (afternoon) prayer when the sun was high, delaying it beyond the time he had previously observed it. He observed the Maghrib (evening) prayer before the red light had disappeared. He observed the Isha (night) prayer when a third of the night had passed. He observed the Fajr (dawn) prayer when there was clear morning light. He (the Prophet) then said: where is the man who inquired about the time of prayer? The man said: Messenger of Allah! Here I am. He (the Prophet) said: The time for your prayer is within the limits of what you have seen. (Muslim)

Narrated Abdullah Ibn Amr Ibn Al-Aas that the Messenger of Allah (peace be upon him) said: The time of Dhohr (noon) prayer is when the sun passes the meridian and a man’s shadow is the same (length) as his height, (and it lasts) as long as the time for the Asr (afternoon) prayer has not come, the time for the Asr (afternoon) prayer is as long as the sun has not become pale, the time of the Maghrib (evening) prayer is as long as the red light has not ended, the time of the Isha (night) prayer is up to the middle of average night, and the time of the Fajr (dawn) prayer is from the appearance of dawn, as long as the sun has not risen, but when the sun rises, refrain from prayer, for it rises between the horns of the devil. (Muslim)

There are other Hadiths which by their wording and practice determine the timings of the five prayers and do not differentiate between the day as being long or short, and likewise between night as being long or short, so long as times of prayers are distinguished through the signs made by Prophet Muhammad (peace be upon him).

This was about their times for prayers. As regard times of their fasting during the month of Ramadhan, it is obligatory for Muslims to observe their fasting from the dawn to sunset every day as long as the day is distinguished in their country from the night and total hours of night and day are 24 hours. It is allowed for them to eat and drink as well as have the sensual relationship with their spouses in the night, even though it is short, as Almighty Allah says: “…And eat and drink until the white thread of dawn appear to you distinct from its black thread, then complete your fasting…” (Qur’an, 2:187)

A person who is unable to observe his fasting due to the long day or he is convinced that his fasting would cause serious illness or he is ill and his fasting would increase his illness on the basis of medical check-up, then he should not fast and make up those days in later months, as Allah says: “…Who is present (at his home) during that month, should spend it in fasting but whoever is ill or on a journey, the prescribed period (should be made up) by days later…” (Qur’an, 2:185) He also says: “On no soul does Allah place a burden greater than it can bear…” (Qur’an, 2:286)

Chairman, Islamic Fiqh Council
Abdullah Ibn Muhammad Ibn Humaid
President, Supreme Judicial Council
Saudi Arabia
Deputy Chairman, Islamic Fiqh Council
Muhammad Ali Al-Harakan
Secretary-General, Muslim World League

Members:
Abdul Aziz Ibn Abdullah Ibn Baz
General President, Research, Ifta, Da’wah and Guidance

Muhammad Mahmood Al-Sawwaf
Saleh Ibn Othaimeen
Muhammad Abdullah Al-Subaiel
Mabrook Al-Awaadi
Muhammad Shadhli Al-Neifer
Mustafa Ahmad Al-Zarqa
Abdul Quddoos Hashemi
Muhammad Rasheedi
Abul Hassan Ali Al-Nadwi
Abu Bakr Muhammad Joomi
Hasanain Muhammad Makhloof
Muhammad Rasheed Qabbani
Mahmood Sheith Khattab
Muhammad Salem Abdul Wadood

The Fourth Resolution
on Artificial Insemination
and Test-Tube Babies

All Praise be to Almighty Allah.
Blessing and peace be on His Prophet Muhammad
after whom there is no prophet, and on all those
who followed his way of guidance.

The Islamic Fiqh Council during its 5th session held between 8-16 Rabi Al-Aakhir 1402H (2-10 February 1982) looked into the issue of artificial insemination and test-tube babies and reviewed the detailed research prepared and presented by some of the Council members on this issue in the previous session. It also reviewed the information collected by other members from the new writings on this issue. In the light of the information collected on this issue, the Council studied the issue from all aspects and dimensions.

After the thorough discussion, it reached the conclusion that this issue is very sensitive from the religious point of view and it has many dimensions. It has also serious consequences and repercussions on the life of family and its moral and social conditions, which are already seen in the foreign countries.

This issue has also certain aspects – in the religious perspective –related to the issues of legitimacy and illegitimacy, rules of need and emergency, regulations of lineage and doubtfulness, the marital bed, pregnant woman’s sexual relationship with person other than the husband, rules of Iddat, purity of womb, sanctity of marriage, the rules of punishment in Islam through Hadd or Ta’zeer as there involved aspects which are not permissible in the religion such as the forms of internal insemination in woman and external insemination in the test-tube, then its plantation in womb and other considerations which have made this issue very serious and there is a need to have more research and investigation especially after the latest writings which were published by the medical scientists who have been closely following this issue and have opened the door of suspicion on the related happenings.

Therefore, the Islamic Fiqh Council decided to postpone its deliberation on this issue to the forthcoming session in order to have more in-depth research and investigation in its various aspects, dimensions and prospects, and so that the Shari’ah ruling is far away from any premature conclusion and close to the right path in order to know the ruling of the Islamic Shari'ah.

Chairman, Islamic Fiqh Council
Abdullah Ibn Muhammad Ibn Humaid
President, Supreme Judicial Council
Saudi Arabia

Deputy Chairman, Islamic Fiqh Council
Muhammad Ali Al-Harakan
Secretary-General, Muslim World League

Members:
Abdul Aziz Ibn Abdullah Ibn Baz
General President, Research, Ifta, Da’wah and Guidance

Muhammad Mahmood Al-Sawwaf
Saleh Ibn Othaimeen
Muhammad Abdullah Al-Subaiel
Mabrook Al-Awaadi
Muhammad Shadhli Al-Neifer
Mustafa Ahmad Al-Zarqa
Abdul Quddoos Hashemi
Muhammad Rasheedi
Abul Hassan Ali Al-Nadwi
Abu Bakr Muhammad Joomi
Hasanain Muhammad Makhloof
Muhammad Rasheed Qabbani
Mahmood Sheith Khattab
Muhammad Salem Abdul Wadood

 

The Fifth Resolution on Friday
and Eid Khutbah in Non-Arab Countries
and Use of Loudspeaker

All Praise be to Almighty Allah.
Blessing and peace be on His Prophet Muhammad
after whom there is no prophet, and on all those
who followed his way of guidance.

The Islamic Fiqh Council during its 5th session held between 8-16 Rabi Al-Aakhir 1402H (2-10 February 1982) looked into the question which was referred to it on the prevailing difference among some Muslims in India regarding the permissibility or non-permissibility of the Friday Khutbah in the local language other than the Arabic language as there are those who see that it is not permissible, because the Friday Khutbah is in fact the replacement of the two Rak’ah obligatory prayer.

The questioner also asked whether it is permissible or impermissible to use the loudspeaker for delivering the Khutbah as some scholars announced that it is not permissible to use it. They present weak arguments.

After having studied the views of the Fiqh scholars in various schools of the Islamic Fiqh, the Council adopted the following resolution:

1. Most appropriate view which we have adopted is that the Arabic language is not a condition for validity of the Friday and Eid Khutbah in the non-Arab countries. However, it is better to recite its introductory part that contains the Qur’anic verses in Arabic so as to make non-Arabs used to the Arabic language and the Qur’an, and so that it is easy for them to learn and recite the Qur’an in its own language. After that, Khateeb should continue his address in the local language that is understood by the audience.

2. There is no objection in the Islamic Shari’ah for the use of loudspeaker in order to deliver the Khutbahs of the Friday prayer as well as Eid Al-Fitr and Eid Al-Adha. Likewise, there is no objection for its use during the prayers. Even it is desirable to use it in the big mosques where the voice hardly reaches all corners of such mosques. It is also because the use of loudspeaker serves the objectives of Islamic Shari’ah.

Every new instrument that is in the human reach by the Grace of Almighty Allah, serves a purpose of the Islamic Shari’ah or helps in accomplishment of the Islamic duties or obligations is in fact a religious requirement.

Chairman, Islamic Fiqh Council
Abdullah Ibn Muhammad Ibn Humaid
President, Supreme Judicial Council
Saudi Arabia

Deputy Chairman, Islamic Fiqh Council
Muhammad Ali Al-Harakan
Secretary-General, Muslim World League

Members:
Abdul Aziz Ibn Abdullah Ibn Baz
General President, Research, Ifta, Da’wah and Guidance

Muhammad Mahmood Al-Sawwaf
Saleh Ibn Othaimeen
Muhammad Abdullah Al-Subaiel
Mabrook Al-Awaadi
Muhammad Shadhli Al-Neifer
Mustafa Ahmad Al-Zarqa
Abdul Quddoos Hashemi
Muhammad Rasheedi
Abul Hassan Ali Al-Nadwi
Abu Bakr Muhammad Joomi
Hasanain Muhammad Makhloof
Muhammad Rasheed Qabbani
Mahmood Sheith Khattab
Muhammad Salem Abdul Wadood

 

The Sixth Resolution
on Currency Note

All Praise be to Almighty Allah.
Blessing and peace be on His Prophet Muhammad
after whom there is no prophet, and on all those
who followed his way of guidance.

The Islamic Fiqh Council during its 5th session held between 8-16 Rabi Al-Aakhir 1402H (2-10 February 1982) looked into the research paper presented to it on the issue of the currency note and the rulings of Islamic Shari’ah on it. After having discussion and deliberation, the Council adopted the following resolution:

1. Since the origin of cash money is gold and silver, and their pricing is the main cause of usury according to one of the most authentic views in the Islamic Fiqh. This pricing is not confined to gold and silver only and since the currency note has also acquired the price value and taken the place of gold and silver in the transaction and through it, things are evaluated in the present age, because the dealing with gold and silver has disappeared. People are now content to possess and save it. The public commitments and dealings are finalized through it, despite the fact that it has no value in its own. Its value is due to some other reason and that is the existence of general trust that it enjoys as a medium of dealing and transaction. This is its price-value.

Since the usury in gold and silver is due to the price-value that exists in the currency note, that is why the Islamic Fiqh Council decides that the currency note is self-sufficient money and its price-value is similar to that of gold and silver. Hence, Zakah is applicable in it and usury of both kinds (Fadhl and Nassa) is also applicable in it, as they are applicable in gold and silver, where the price-value plays an important role as it plays in the currency note. This way the currency note acquires the position of money in all commitments approved by the Islamic Shari’ah.

2. The currency note is self-sufficient money, and its money value is similar to that of gold and silver. The currency note has different types, which vary as per the agencies which issue them in the different countries. In other words, the Saudi currency note is one kind and the US currency note is another kind. Likewise, every currency note is a separate kind whereas the usury with its both kinds (Fadhl and Nassa) is applicable as it is applicable in gold, silver and other kinds of money.

All above considerations call for the following:

A: It is not lawful to sell the paper money for each other or for other kinds of cash money such as gold and silver. Hence, it is not lawful for example to sell a Saudi Riyal in exchange of any other currency in debt and with increase and decrease.

B: It is not lawful to sell one kind of the currency note between each other in increase or decrease whether it is in debt or cash sale, such as selling the notes of 10 Saudi Riyal for notes of 11 Saudi Riyal whether in cash or credit.

C: It is lawful to sell one kind of the currency note for another kind if it is in cash. For example, it is lawful to sell the Syrian or Lebanese Lira for Saudi Riyal or to sell one US Dollar for three Saudi Riyals if it is in cash, because this sale would be considered as a sale of one kind for different kind.

3. Zakah is obligatory in the currency notes when they reach the least of any Nisab of either gold or silver, or they make up the Nisab with other wealth or goods made for commerce or trade.

4. It is lawful to make the currency notes as the capital money in Selam sales and companies.

Chairman, Islamic Fiqh Council
Abdullah Ibn Muhammad Ibn Humaid
President, Supreme Judicial Council
Saudi Arabia

Deputy Chairman, Islamic Fiqh Council
Muhammad Ali Al-Harakan
Secretary-General, Muslim World League

Members:
Abdul Aziz Ibn Abdullah Ibn Baz
General President, Research, Ifta, Da’wah and Guidance

Muhammad Mahmood Al-Sawwaf
Saleh Ibn Othaimeen
Muhammad Abdullah Al-Subaiel
Mabrook Al-Awaadi
Muhammad Shadhli Al-Neifer
Mustafa Ahmad Al-Zarqa
Abdul Quddoos Hashemi
Muhammad Rasheedi
Abul Hassan Ali Al-Nadwi
Abu Bakr Muhammad Joomi
Hasanain Muhammad Makhloof
Muhammad Rasheed Qabbani
Mahmood Sheith Khattab
Muhammad Salem Abdul Wadood

 

The Seventh Resolution
about Impact of Extra-ordinary Circumstances
on Contractual Rights and Obligations

All Praise be to Almighty Allah.
Blessing and peace be on His Prophet Muhammad
after whom there is no prophet, and on all those
who followed his way of guidance.

The Islamic Fiqh Council during its 5th session held between 8-16 Rabi Al-Aakhir 1402H (2-10 February 1982) reviewed the problem of a sudden change caused by extra-ordinary circumstances in the undertaking contracts, which are sighed for different purposes. These extra-ordinary circumstances, which greatly affect the balance of both parties’ estimates as the contract gives each party certain rights and obligations.

This problem has certain forms and situations of dealings, which require just and appropriate solutions to those forms and situations in the light of the Islamic Shari’ah. Some forms of this problem are mentioned in the following:

1. If a construction contract for a huge building, which requires a long period of construction is signed between two parties and its construction and plaster price per cubic metre is fixed at a rate of 100 Dinar, while the cost of the basic materials such as steel, cement and wood as well as cost of the labour at the time of contract is estimated 80 Dinar per cubic metre. Then, an unexpected war or a major happening takes place during the execution of the building, breaking the communication and import links and compelling a major price hike, which made the execution of the contract very difficult.

2. If a party, which has signed an undertaking contract to supply the foodstuff such as meat, milk, eggs, vegetables etc. to a hospital, university hostel or government guesthouse at a fixed price for a period of one year. Then, a natural calamity or disaster took place in the country and prices of the various commodities became manifold high making the supply commitment very difficult.

There are other forms of this problem. Then, what is the Shari’ah ruling on such cases, which often take place in the present time that is characterized with big contracts with the governments for constructions of roads, tunnels, bridges, hospital, residential complexes, university campuses and the government headquarters?

Similarly, there are contracts signed with big companies to construct the industrial complexes and the like, which did not exist in the ancient past. In this situation, whether the contractor would continue with the same conditions and prices that were before the change of the situation or the above-mentioned major happenings, whatever heavy losses, he may incur in compliance of the contract and its stipulations, or he may have some relaxation or remedy from the Islamic Shari’ah, which can adjust both the parties in a more balanced way and achieve justice between the two parties as much as possible.

The Islamic Fiqh Council looked into the similar cases in the different schools of the Fiqh and reviewed the related Shari’ah rules, which can be taken into consideration in order to find out a solution in this regard and recommend an appropriate ruling.

The Council while referring to the various schools of the Islamic jurisprudence found the following:

1. The lease can be nullified due to the extra-ordinary circumstances such as war and other natural calamities, in which the profit becomes very difficult, even the Hanafi school of Fiqh allows the nullification of the lease due to some circumstances related to the lessee, which shows that the Hanafi school of Fiqh preferably accepts the nullification of lease in the general emergency. Ibn Rushd mentioned (Bidayat Al-Mujtahid Vol.2 P.192, 1st Khanji Edition, Jamaliyah Press, Egypt) under the heading: (The Emergency Rules) that the Maleki school of Fiqh views that the land, which is irrigated only by rain waters is given on lease and the drought prevents its cultivation, if the lessee cultivates this land, the drought would not hep him and the lease would be considered nullified. Similarly, when the rain is very little till the period of the cultivation expired and the lessee could not cultivate this land, the same ruling would apply in this case.

2. Ibn Qudamah Al-Maqdesi mentioned (in Al-Mughni, with Al-Sharh Al-Kabeer, Vol.6, P.30) that when a general situation of fear prevents the residence in a place, which has been leased or there is a blockade that prevents access to a land leased for cultivation, then it gives the lessee an option of nullification, because it is a situation that prevents the lessee from getting the benefit of the lease. If the fear is due to the lessee, for example, he is frightened because he has foes in that place, then he does not have an option of nullification, because this is due to his own reason and does not prevent the benefiting from the lease itself.

3. Imam Al-Nawawi has mentioned (in Raudhat Al-Talibeen, Vol.5, P.239) that the lease is not nullified because of the excuses like a person who hired an animal for travelling and became sick or he took a shop on rent for a profession and lost the equipments of that profession or he took on rent, a bathroom for hot water and could not manage the required fuel. Imam Al-Nawawi adds that if the excuse is associated with the lessor as if he fell sick or became unable to go out with the animal or he rented his house and his family members, who were on tour, came back and he then needed the house. In this case, there is no nullification because there is no trouble with what has been leased.

4. What is mentioned by the Fiqh scholars about the natural calamities that destroy the sold fruits on trees due to certain factors such as extreme cold or heat, rain, storms, whereas they decide to discount the amount equivalent to the loss caused by the natural calamity. It is a known issue of the natural calamities in the Islamic Fiqh.

5. Sheikh Al-Islam Ibn Taymiyah said (in Mukhtasar Al-Fatawa P.376) that a person, who takes on lease, some amenity which is useful for general public such as bathroom, hotel or the shopping centre and its usual profit decreases due to the lesser number of customers or some other reasons such as war, change of government or fear of any kind, then the rent equivalent to the decreased profit would be discounted from the lessee.

6. Ibn Qudamah also said (in the above-mentioned reference P.29)that if a person hired an animal for riding or loading to a certain place, then, the way to that place was cut off for fear of a mishap, or he hired an animal to Makkah for Hajj but the people did not go for Hajj that year due to some reasons, then each of the two parties can nullify the hire and if they wished to continue it till the possibility of getting the benefit, then also, it would be valid.

Sheikh Al-Kasani, one of the eminent scholars of the Hanafi school of Fiqh, said (in Badae’ Al-Sanae’ Vol.4, P.197) that the nullification is in fact, for prevention of harm, and the denial of nullification – in case, the excuse exists – is contrary to the reason and religion, because it is like a person, who had pain in his tooth and hired a person to take out that tooth, however, pain of the tooth died down, then if he forced the hired person to take out his tooth, it would be very bad in reason and religion. What the scholars of the various schools of the Fiqh have said about the extra-ordinary circumstances in lease, they have said the same in agriculture, plantation and irrigation.

7. Prophet Muhammad (peace be upon him), his companions and many scholars of the Islamic Fiqh have given the ruling on the natural calamities, which destroy the fruits on trees that the value equivalent to the loss of the sold fruits would be discounted from the total value and if the whole quantity of the fruit is destroyed, the entire value would be discounted.

8. Prophet Muhammad (peace be upon him) is reported to have said: “No harm to self and no harm to others.” The Fiqh scholars have derived from this Hadith, a jurisprudence rule and considered it one of the essential foundations of the Islamic Fiqh. They have based many rulings of the Islamic Fiqh on the basis of this rule with the aim of preventing as well as removing the harm as much as possible.

There is no doubt that the contract, which is concluded according to its legal system, is judicially binding to the concluding parties as Almighty Allah says: “O you who believe! Fulfil (all) obligations…'' (Qur’an, 5:1) However, the binding power of the contract is not stronger than the textual ruling of the Islamic Shari’ah.

The Islamic Fiqh Council has found in the criteria of the religious commandments and the rationale of legislation in Islam that hardship, which is generally associated with the religious commandment such as the hardship of standing in Salah (prayer), hardship of hunger and thirst in Siam (fasting) does not nullify the commandment and even does not cause any relaxation in the commandment.

However, when the hardship crossed its natural limits found in each commandment, it either nullifies the commandment or causes relaxation in it such as the hardship of the sick person in the prayer and fasting as well as the hardship of a blind or handicapped in Jihad, then the extreme hardship due to extra-ordinary circumstances, should cause the extra-ordinary dispensation that removes the extreme limit. Imam Abu Is’haq Al-Shatebi in his book, Al-Muwafaqaat Fi Osool Al-Shari’ah has explained in detail and presented many examples of rulings from the Islamic Shari’ah.

It is clear from this, that the usual loss in ups and downs of the business has no impact on the contract, because such loss is associated with ups and downs of the business. However, when the loss crossed its usual limits due to the above-mentioned extra-ordinary reasons, then, it causes an extra-ordinary dispensation.

Imam Ibn Al-Qayyim said in his book, I’lam Al-Mu’qieen: Allah has sent His Prophets and Books with balance that is key to every thing between heavens and earth. Everything that is contrary to justice has nothing to do with the Islamic Shari’ah and whenever there is justice, it means that there is Islamic Shari’ah.

The intention of the contract parties is determined by the circumstances of the contract. This intention cannot be ignored and also it is difficult to stick to the contract literally in all the circumstances. So it is obvious that the intervention in such extra-ordinary circumstances of the contract in order to find out a just solution is jurisdiction of the judicial system. In the light of these guidelines and textual rulings that provide an appropriate Fiqh solution of this vital issue, the Islamic Fiqh reached the following conclusion:
1. In contracts of relaxed execution (like contracts of supply, undertaking or construction) when circumstances of the contract change in a radical way altering the prices, costs and conditions due to unexpected extra-ordinary circumstances inflicting the huge losses to the contractor in case of the contract execution, then the judge can, on request, modify the contractual rights and obligations in a way that distributes the loss on both parties. He also can nullify the contract, which was not executed yet if he found that its nullification is better through a just compensation to the contractor to cover up the major loss that may incur to him due to nullification of the contract in order to have a balance between the two parties. The judge will look into these matters in the light of the experts’ opinions.
2. The judge can give the time to the contractor if he found that the extra-ordinary situation may go shortly and the contractor would not incur much loss with this extra time.
The Islamic Fiqh Council is of the view that this solution derived from principles of the Islamic Shari’ah would achieve the balance between the two parties of the contract and would prevent the heavy loss to any of the parties due to a reason, which he has nothing to do with it. The Council is also of the view that this solution is closer to the Islamic Shari’ah and its just objectives.
Chairman, Islamic Fiqh Council
Abdullah Ibn Muhammad Ibn Humaid
President, Supreme Judicial Council
Saudi Arabia
Deputy Chairman, Islamic Fiqh Council
Muhammad Ali Al-Harakan
Secretary-General, Muslim World League

Members:
Abdul Aziz Ibn Abdullah Ibn Baz
General President, Research, Ifta, Da’wah and Guidance

Muhammad Mahmood Al-Sawwaf
Saleh Ibn Othaimeen
Muhammad Abdullah Al-Subaiel
Mabrook Al-Awaadi
Muhammad Shadhli Al-Neifer
Mustafa Ahmad Al-Zarqa
Abdul Quddoos Hashemi
Muhammad Rasheedi
Abul Hassan Ali Al-Nadwi
Abu Bakr Muhammad Joomi
Hasanain Muhammad Makhloof
Muhammad Rasheed Qabbani
Mahmood Sheith Khattab
Muhammad Salem Abdul Wadood

 

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