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ref:topbtw-1386.html/ 11 Settembre 2018/A

Mondo islamico
Finanza Islamica

Che cosa è proibito..

- Understanding What is Forbidden (Haram) in Financial Structures- Many critics and observers use terms such as Haram "Forbidden" far too easily to describe some financial and... -


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E' un sito web dedicato allo studio ed all'approfondimento tecnico dei meccanismi che regolano la finanza islamica.

La pagina web permette l'iscrizione al portale, permette di avere dei contatti con lo staff dell'islamicmarkets e di ottenere le necessarie informazioni per comprendere i meccanismi del sistema finanziario islamico.

Many critics and observers use terms such as Haram “Forbidden” far too easily to describe some financial and commercial structures.

This stems from three main issues:

The view that in Shariah the Forbidden is the majority while the Permissible is the minority.

Or perhaps some regard this as more pious.

The lack of knowledge of what constitutes a Forbidden structure.

This is simply a lack of awareness of the basics of Fiqh Al-Mu’amalat.

A certain unease related to the similarities between some Conventional products and Islamic structures.

I see these views a lot, especially among the many visitors I have to my regular LinkedIn posts.

The list of errors of what Shariah actually forbids is endless it seems.

Many regard Paper Money as forbidden, some regard the use of LIBOR as forbidden, while others insist that even having a bank is against the spirit of Shariah.

Yet others regard a margin on a Deferred Payment Sale as akin to Riba.

Some view any guarantee provided in a transaction as forbidden, and do not know you can transfer debt.

None of these are forbidden.

But it is very important to note that there are conditions for ensuring such acts are Shariah-compliant.

I believe part of the problem could be that people view the word “forbidden” as a better default until proven otherwise.

They regard it as more prudent and perhaps more pious.

I can understand that.

However, pausing before entering into a transaction and asking for more information from knowledgeable scholars is far different from stating that the transaction is forbidden.

Haram is a very big word and should be used only with serious knowledge, as it is as equally wrong to permit what is forbidden, as it is to forbid what is permissible.

Perhaps also, many observers have not had experience in discussions with scholars and have some image that scholars tend to forbid more than they permit.

Not true.

In my experience, scholars were always hesitant to forbid until they have clear proof.

It is important for people to know that the basis of commercial transactions in Shariah is permissibility unless there is a reason to forbid.

This is a fundamental principle that has always been followed in transactions.

As Dr. Saad Al-Khathlan, a former member of Saudi Arabia’s Council of Senior Scholars states in his book on modern financial transactions:

“If two individuals differ as to the permissibility of a transaction, the one who is asked for proof is the one who claims it is forbidden.”

Here also we must pause and remember well the words of the great scholar Ibn Taymiyyah (1263-1328 A.D.) who stated the following in The Book of Contracts:

“Everything that is of benefit to people, and has not been forbidden by Allah or his Messenger (PBUH) is Halal, and no one has the right to forbid it."

“The basis of all contracts is permissibility, except that which has been forbidden by Allah or his Messenger (PBUH), and Allah has not forbidden any contract which is of benefit to people unless it contains an overwhelming corruption.”

One simply can’t make things clearer than that.

The second point is perhaps even more important.

And that is a lack of knowledge.

If one does not read, ask, and research for answers, one does not know.

Many people have not had the opportunity to work in an Islamic Bank or study Islamic Finance.

Thus their knowledge is limited.

This situation is even more exacerbated for non-Arabic speakers, as most classical Fiqh books and even modern books are in Arabic.

They are therefore limited to bits and pieces of translations and second hand research papers.

It’s simply not the same as reading an old book giving you the full and colourful aspects of contract law.

There have been some classical books that have been translated into English, such as “Bidayat Al-Mujtahid” by Ibn Rushd, and “Umdat Al-Salik” by Ibn Naqib Al-Misri.

It is very important to understand the heart of the matter, which is what truly makes something Haram.

It is certainly not the personal dislikes or discomforts of a person, nor is it in any similarity to anything else.

There are rules, and the scholars know these quite well.

Let’s try a few exercises to see if you’re fully aware of what is forbidden.

See which of the following is in fact forbidden:

1 - I lend a person $ 1,000 for a period of 3 months.
At the end of 3 months he gives me back my $ 1,000 plus an extra $ 50.

2 - I lend a person $ 1,000 for a period of 3 months, and before the maturity date he gives me a gift worth $ 50.

3 - I hand over to a person 20 coins each of one Sterling pound, to be returned to me after one week with an extra 1 Sterling pound.

So which of the three is forbidden?

None of them are.

The first one is permitted since the interest was not Stipulated in the contract and is in fact a gift from the borrower.

The second one is permitted if I know the person well and we have a history of mutual gift giving.

The third one is permitted as I am in fact Renting the coins as a weight or for jewelry.
It is an Ijarah.

Most people would have thought of the famous rule:
“Every Loan that brings a benefit (to the lender) is Riba” and would have concluded they are all forbidden.

Not so, but one has to know, and the only way is to read and understand.

In many cases such as the first two cases, one can just simply refer to AAOIFI Shariah Standards, such as Standard (19) on loans (Qard) to get the answer:

Material Benefits at the Time of Repayment That Are Not Stipulated

The basis for the permissibility of giving an excess, in terms of quantity or quality, at the time of repayment by way of generosity and goodwill, when these are neither stipulated nor is there a practice of paying them, is the Hadith reported from Abu Rafi’, may Allah be pleased with him, that the Messenger of Allah (peace be upon him) borrowed a very young camel from a man and then wished to present to him one of the camels of the Sadaqah (Zakat), so he asked Abu Rafi` to repay the man his camel.

Abu Rafi’ returned it to him and said,
“I do not find anything there except a full grown four year old camel.”

The Prophet (peace be upon him) said, “Give him this camel.

The best people are those who do better in of repayment”.

It is reported from Abu Hurayrah that a man came to the Messenger of Allah (peace be upon him) seeking alms.

The Messenger of Allah (peace be upon him) borrowed food amounting to one-half of a Wasq and gave the man this.

When the lender came demanding his loan, he gave him a full Wasq saying,
“ One-half of this is your repayment and the other half is a present from me”.

Material Benefits Not Stipulated Prior to Repayment

The basis for the prohibition of material benefits not stipulated prior to repayment, unless these benefits are not for the sake of Qard or in lieu thereof, are the following:
From Anas Ibn Malik, may Allah be pleased with him, who said:
“The Messenger of Allah (peace be upon him) said,
`When one of you grants a Qard and a gift is made to him by the borrower or he offers him a free ride on his animal, he is not to accept this from him, unless such a practice was prevalent among them prior to the Qard’.”

As for the third case, this is much more difficult, as one has to delve into many websites and potentially classic books, which are mainly in Arabic, to see the discussion and the permissibility of such an action.

The third example on renting money as weight or decoration in fact comes from a book entitled “Kashaf Al-Qinaa” a classic Hanbali school book by Al-Bahouti from the mid 17th century.

The discomfort some critics may feel when observing Shariah-compliant transactions stems from a lack of knowledge.

They seem to be perplexed at how scholars go about their work in deciding what is and what isn’t compliant.

There’s really no mystery at all if you actually understand Shariah.

AAOIFI places great importance on providing the basis of its standards. This helps even those with little knowledge understand the basis of how scholars have reached their decisions.

All one has to do is simply look at any standard and see its basis such as the excerpt below from AAOIFI’s Shariah Standards, this one on Loans (Qard):

Stipulating a Contract of Sale within the Contract of Qard

The basis for the prohibition of stipulating a contract of sale within the contract of Qard are the following:

1. The saying of the Prophet (peace be upon him):
“A Salaf (loan) and sale (in one contract) are not permitted nor are two conditions in a sale nor the profit from a thing for which the liability for loss is not borne nor the sale of what you do not have”.”

What this means is that one can trace the issue and look back in time in classic books to discern what exactly is being approved or prohibited and its basis.

One can see how the scholars have reached their decisions.

In the example above there is a clear and agreed upon saying which created the prohibition.

Without such information, the student of Islamic Finance might continue to find it confusing.

But it’s only when one actually engages with scholars in the structuring of a transaction that one sees the full spectrum of their methodology and one gains a fuller understanding of many Shariah aspects.

Without such knowledge, the area between forbidden and permissible will always seem nebulous.

I have worked with many scholars on many transactions.
I can say without any hesitation that they always took great pains in explaining their decisions and what exactly is forbidden and their sources.

It was never a secret, nor confusing at all.

One of the main problems also, is that there seems to be a belief among many critics that Conventional and Islamic Finance should be so different that any similarities are proof that something illicit is taking place within the Islamic Banking industry.

They are uneasy about some similarities with conventional banking, which they regard as forbidden, therefore by implication a similarity means that the Islamic Banking structure must also be forbidden.

This of course is not factual and misses the point.

The reality is that both forms of banking rely on a history of commerce which in many cases is quite similar, and therefore it would not be a surprise to find many acceptable clauses within Conventional Banking that are permissible, indeed necessary by Shariah, such as certain disclosures, which ensures that information is unambiguous.

It also misses the point of form versus function, which I touched upon in my last article.

Life is constantly changing; new customs and laws are always evolving, with new methods and new technologies.

Shariah is a very permitting code that is designed for all time and for all places, and scholars have to adapt the old rules to new circumstances to ensure the benefit of society.

The great scholar Ibn Al-Qayyim said it best in “A’alam Al-Muwaqqi’in”:

“Pronouncement on issues changes with time, place, conditions, intentions, and results.
Ignorance of this causes an injustice to Shariah, and has thus created difficulties, hardships, and requirements to which there is no path.

What we know of our brilliant Shariah is that it is designed for hardships.

Shariah’s edifice and foundation are built on wisdom and the benefit of people in this life and the hereafter.”

I leave you with one of the most articulate statements concerning the issue of the Forbidden in transactions that I have ever heard:

As Sheikh Suleiman Al-Rehaily;
Chair of Fatwa at Islamic University in Madinah, Saudi Arabia, wonderfully put it:
The forbidden can be detected when one or both of these two characteristics is found in transactions:

The Presence of Injustice
The Potential for Dispute

Courtesy by: Nizar Alshubaily

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