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1 Wakalah (Agency) Definition of Wakalah: The word wakalah literally stands for protection or authorization 1 . While the word tawkeel, means authorizing someone to carry out an action. From juristic point of view, the word wakalah stands for both aforementioned meanings according to the view of al-Kasani. 2 Inferably and technically, this means that, wakalah refers to a contract whereby a person is authorised to discharge a certain and well-defined legal action. Legality of wakalah The contract of wakalah is one of essential things which people are in need of in their daily activities. Hence, Shariah allows it. The evidence of permissibility is derived from the Qur`an, authentic tradition of the Prophet (s.a.w), and ijma 3 of jurists. The following as the concise proofs on this: " ٍ قْ زِ رِ بْ مُ كِ تْ أَ يْ لَ ا فً امَ عَ ى طَ كْ زَ ا أَ هْ يَ أْ رُ ظْ نَ يْ لَ فِ ةَ ينِ دَ مْ ى الَ لِ إِ هِ ذَ هْ مُ كِ قِ رَ وِ بْ مُ كَ دَ حَ وا أُ ثَ عْ ابَ فَ َ وْ فّ طَ لَ تَ يْ لَ وُ هْ نِ م ا "ً دَ حَ أْ مُ كِ بّ نَ رِ عْ شُ ي1 Zakariya al-Ansary, al-Qadhi Abu Yahya. Asna al-Matalib. Beirut: Dar al-Kutub al-`Ilmiyyah. v 5. pg 23. 2 al-Kasani, Abu bakar Ibn Mas’ud Ibn Ahmad, Bada’i’ al-Sana`i. Cairo: Dar al-Hadith, 2005. Vol. Pg. 405. 3 -Ibid. Zakariyah al-Ansaary, Asna al-Matalib fi sharh raqdh al-Talib. v5, pg 23.

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Wakalah (Agency)

Definition of Wakalah:

The word wakalah literally stands for protection or authorization1. While

the word tawkeel, means authorizing someone to carry out an action.

From juristic point of view, the word wakalah stands for both

aforementioned meanings according to the view of al-Kasani.2 Inferably

and technically, this means that, wakalah refers to a contract whereby a

person is authorised to discharge a certain and well-defined legal action.

Legality of wakalah

The contract of wakalah is one of essential things which people are in

need of in their daily activities. Hence, Shari‘ah allows it. The evidence of

permissibility is derived from the Qur`an, authentic tradition of the

Prophet (s.a.w), and ijma3 of jurists. The following as the concise proofs

on this:

منه وليتلطف ول فابعثوا أحدكم بورقكم هذه إلى المدينة فلينظر أيها أزكى طعاما فليأتكم برزق "

يشعرن بكم أحدا "

1 Zakariya al-Ansary, al-Qadhi Abu Yahya. Asna al-Matalib. Beirut: Dar al-Kutub al-`Ilmiyyah. v 5. pg

23. 2 al-Kasani, Abu bakar Ibn Mas’ud Ibn Ahmad, Bada’i’ al-Sana`i. Cairo: Dar al-Hadith, 2005. Vol. Pg.

405. 3 -Ibid. Zakariyah al-Ansaary, Asna al-Matalib fi sharh raqdh al-Talib. v5, pg 23.

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“Let, then, one of you go with these silver coins to the town, and let him

find out what food is purest there, and bring you thereof [some]

provisions4”.

Further still, it has been narrated from sound and authentic source that the

prophet practiced wakalah. imam al-Bukhari, al-thirmidhi, abË Daud and

ibn majah narrated that the messenger of Allah authorized Urwah al-

Bariqi to purchase goat for sacrifice (al-UdhÍiyah).5 Besides, he delegated

`Amr bin Umayyah in marrying Ummu Habibah while she was in

Habashah.

Basis and Cornerstone of wakalah :

Generally, it could be said that wakalah has 4 cornerstones, Ibn Rushd

and others 6 mentioned that there are four cornerstones for wakallah

which are needed to be fulfilled during contract of wakalah.

1- Muwakkil: (Principal)

2- Wakil: (Agent)

3- The subject matter:

4- Contract language (offer and acceptance)

4 Surah Al-Kahf 18:19

5Abu Daud, 1952, Mansoori, 2005, pg. 62

6Ibn Rushd al-Qurtubi, Muhammad bin Ahmad bin Muhamamd bin Ahmad. Bidayat al-mujtahid wa

nihayat al-muqtasid. Beirut: Dar al-Kutub al-`Imiyyah. 2004. pg. 687. See also Ibid: Zakariya, al-

Ansaary, Asana al-Matalib, v2, pg260.

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However, Hanafi jurists stipulated only one cornerstone for wakalah7

contract which is contract of language in matters relating to ijaab and

qabuul (offer and acceptance)

Legal Rulings regarding conditions to wakalah:

There are rules which guide abovementioned cornerstones which

are as follow:

i) Principal/muwakkil:

As for the principal, Jurists have made mentioned that he needs to fulfil

some essential conditions. Of those conditions is that, he must possess the

ability to own the property and competence to deal with that property8. He

must attain full capacity to partake in contract (ahliyyah). As a result,

delegation is not permitted for an insane or minor (sabiyy gayr

mummayyaz). If one of the above mentioned groups involve in delegation

of contract to someone else, such contract will be regarded null and void9.

Hanafii jurists also mentioned that it is lawful for minors al- Sabiyy al-

Mumayyiz (that has reasoning ability) to delegate a person that can assist

7al-Kasani, `Ala al-Din Abu Bakar ibn Mas`ud, Bada`i‘ al- sana`i‘ , Cairo: Dar al-Hadith. 2005, v.6,

pg. 405. See also: al-Babirty, Muhammad ibn Muhammad, al-`Inayah sharh al-Hidayah. v11, pg71. 8al-Shirazi, Abu Ishaq Ibrahim ibn `Ali ibn Yusuf. al-Muhazzab. Beirut: Dar al-Kutub al-I`lmiyyah.

1995. V. 2. P 164. See also: Ibn Muflih., Abu `Abdullah Muhammad ibn Muflih al-Maqdisy. al-Furu‘.

Beirut: Dar al-Kutub al-`Ilmiyyah. 1997. V.4, pg255. 9 Ibid: al- Shirazi. 164 see also: `Abdullah bin Hijazd bin Ibrahim al-Azhary. Hashiyah al-Sharqawy.

Beirut: Dar al-Kutub al-Ilmiyyah. 1997, v 3. pg226.

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them with beneficial things to them10

. On the contrary, the Malikis, Shafi`i

and Hanbali jurists are of the opinion that it is not permissible for minors

to delegate people for any transaction11

relating to the contract.

ii) Agent/wakil

Wakalah, in order to be accepted, the wakiil (agent ) must be sane (

aaqil)12

. The agent should have full legal capacity ( al-Ahliyyah al-

Kamilah). Thus, a lunatic or an indiscriminating minor ( sabiyy gayr

mummayyaz) cannot become an agent, but according to Hanafi it is

allowed for al-sabyy mumayyiz to carry out contract of wakalah.13

. The

agent should also be aware of his status as an agent. When somebody

acted on behalf of another and later on the former comes to know that he

is an agent of the latter the preceding act does not fall under wakalah

contract14

.

iii) Subject Matter

The subject matter of agency or the act to be performed by the agent

should be known to agent. Thus, it is not permissible to delegate someone

to perform unknown thing15

. If the agency is for the purchase of a thing,

the genuineness, kind, quality and other necessary attributes of the

10

Ibid. al-Kasani, v7, pg406. 11

Ibid. al-Shirazi, al-Muhazzab. v2, pg164. 12

ibn Rushd, bidayat al-Mujtahid, 2004. pg685. See also Ibid: al-Sharqawi. Hashiyah al-Sharqawi. V.3.

pg227. 13

Ibid: al-Kasani. v7, pg.407. See also Muhammad `Alaa al-Din al-Haskafy, al-Durr al-Mukhtaar v5,

pg511. 14

Ibid: al-Kasani. v7, pg.407. 15

Ibid.al-Shirazi. V2.165.

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commodity to be bought should be mentioned16

. In addition, the agency

must be a lawful action, coupled with the fact that, it must be something

disposable through wakalah.17

Agency is not permissible for acts by

Shari’ah or acts of disobedience such as: theft, usurpation of property or

conducting riba-based business.

There are some subject matters which cannot be performed via agency

such as personal devotional matters like prayers, fasting, purification with

exception to pilgrimage, ayman (swearing an oath), zihar (swearing an

oath not to approach one’s wife by equating her back with the back of his

mother).18

Types of Wakalah ;

Wakalah can be divided as follows;

(al-Wakalah al-`Ammah) General Wakalah19

This refers to a general delegation of power. For example, if the principal

says: “I delegate to you all my affairs.” In this case, the principal has

transferred and delegated the power to the agent. The exemption of the

delegated power covers harmful things to the principal like gift (hibah) or

16

Ibid.al-Sharqawi, Hashiyat al-Sharqawi. v3, pg229. 17

Ibid.ibn Rushd, Bidayat al-mujtahid , 685. 18

Al-Kasani, al-Bada’i‘, v6,pg.21. 19

Ibid.ibn Rushd. Bidayat al-mujtahid. 685.

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divorce. Thereby, the agent has no authority to divorce the principal’s

wife unless the later specifically mentioned that in the contract.

(al-wakalah al-Khassah) Specific Wakalah20

Particular wakalah is made only for certain known transactions for

example, buying or selling certain known house or a car. The agent is

bound to sell or buy that particular house or car.

(al-Wakalah al-Muqayyadah) Restricted Wakalah

This is wakalah where the agent has to act within definite conditions. For

example, I delegate you to buy a house at such a price, or until such a

time or based on instalments. The agent has to strictly observe these

conditions. If the conditions are not met, the transaction is not binding on

the principal21

.

(al-Wakalah al-Mutlaqah) Unrestricted Wakalah22

This is where there is no condition put in place for the transaction. For

example, if the principal says to his agent: I delegate you to buy a land.

Without mentioning specific price or type, in this case, according to the

majority of jurists and two companions of Abu Hanifah,( Abu Yusuf and

Muhammad al-Shaibani) the agent has the authority to buy land within

20

Ibid.ibn Rushd. bidayat al-Mujtahid, 685. 21

Ibid. ibn Muflih . al-Furu`. v4, pg256. 22

ibn Nujaym, al-Bahr al-Raaiq sharh Kanz al-Daqaiq. Beirut: Dar al-Kutub al-`ilmiyyah, V7, pg.282.

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the prevailing practices and customs. And if he acts contrary to the

custom, then the transaction depends on the approval of the principal23

.

Meaning to say, the agent has to buy that land in such a way that the

principal will not be cheated. However, Abu Hanifah argues that an agent

is not bound by the customs as custom differs from one place to another24

.

Binding Wakalah

Wakalah is basically not binding because each of the two parties involved

has the right to revoke the contract. However, the majority of jurists hold

that wakalah will be binding if there is a compensation for the task.25

Is it allowed for wakil to delegate another person?

There are numerous opinions regarding the permissibility of an agent

appointing another person to be his agent as well:

According to Hanafi, it is allowed for general and absolute wakil to

appoint someone else to be his agent,26

Maliki jurists uphold the view that

it is not allowed for wakil to appoint anyone as wakil, except if that

wakalah (delegation) is not suitable for his personality, for instance, if he

is dignitary and what he has delegated for is insignificant or worthless, in

23

-Ibid: Ibn Muflih . al-Furu`. v4, pg256. Ibid. Zakariyah al-Ansaary, asnaa al-Mataalib. v5, pg43. 24

ibn Nujaym, al-Bahr al-Raiq Sharh Kanz al-Daqaaiq. Beirut: Dar al-Kutub al-Ilmiyyah.1997, vol 7,

p.283. see Ibid. ibn Muflih . al-Furu`. v4, pg256. 25

al-Saawi, Ahmad, bulgat al-Salik li aqrab al-Masalik, v3, pg333. 26

-Ibid.ibn Nujaym, al-Bahr al-Raaiq sharh Kanz al-Daqaiq. v7, pg299.

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this situation is permissible to delegate someone else. On the contrary,

shafi`i and Hanbaly are of the opinion that it is not allowed for wakil to

delegate another person without consent of principal ( wakkil) as far he is

capable of carrying out what he has been delegated for, though, if he is

not capable of carrying out all what muwakkil appointed him for, in this

case, it is allowed for him to appoint someone else as agent27

.

The Cease of Agency (Wakalah)

There are many different ways in which wakalah comes to end:

1- wakalah contract comes to an end by mutual agreement .

2- If the subject matter of the wakalah has conducted and served its

purpose28

.

3- Resignation of wakil:29

wakalah can come to end by resignation from

wakil, however, the hanafi jurists stipulated that the agent has to inform

the principal, while shafi` do not do so30

.

4- If muwakkil (principal) discharges his wakil (agent): the principal has

authority to remove agent any time he/she likes31

. However, according to

Hanafi, two conditions must be fulfilled namely: (1) The principal must

inform and notify his agent. But others like shafi` and Hanbali

27

Ibn Qudamah, `Abdullah ibn Muhammad ibn Ahmad ibn Muhammad ibn Qudamah. Cairo: Dar al-

Hadith. 2004. v6. pg.467-468. Ibid. Zakariyah. al-Ansaary,asna al-Matalib.v 5, pg49. 28

Ibid.Ibn Muflih . al-Furu`. v4, pg257. 29

Ibid.Ibn Qudamah. al-Muqhni , v6, pg475. 30

Ibid. Ibn Nujaym. al-Bahr al-Raiq v7. pg318. 31

Ibid. Ibn Muflih . al-Furu. v4, pg256.

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notification of agent is not a condition32

.(2) the agency has not to do with

another person`s right33

, for instance, if principal appoints someone to

divorce his wife anytime he likes thus the husband (al-muwakil) has no

right to revoke the agency without the consent of the wife.

5- If either wakil or muwakkil has no more legal capacity34

e.g. he/she

becomes insane, or in the inevitability of death. Also, he/she has legal

interdiction (al-hajr).

6- Destruction of the subject matter e.g. by selling or buying or hiring it.

Unauthorised Agency (Tasarruf Fudhuli)

It is referring to an unauthorised act performed by an agent or an act

which is performed by unauthorised agent. It is submitted that that no one

is allowed to deal with the property of another person without his

permission. The Hanafites and Malikites hold that the acts of

unauthorized agent depend on the ratification and approval of the owner

of the property.35

The Shafiites, Hanbalites and Zahirites hold that the

contract is not valid.36

32

Ibid.ibn Qudamah. al-Mugni. v6, pg481. 33

Ibid.ibn Nujaym. al-Bahr al-Ra’iq v7, pg320. 34

Abdullah Ibn Mahmoud Ibn Mardud al-Musali.al-Ikhtiyaar li ta`lil al-mukhtar. v2, pg174. 35

Al-Kasani, al-Bada’i‘, v5, pg148, Ibn Rushd, Bidayat al-mujtahid, v2, pg.171. 36

Al-sharbini, al-Khatib, Mughni al-muhtaj, v2, pg.15, al-Bahuti, Kashshaf al-Qina’, vol2, pg.11, and Ibn Hazm, al-Muhalla, vol.8, pg.503.

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Wadiah (Deposits)

Definition of Wadiah

Literally it comes from the word wada’a which means leaving or avoiding

something37

.

Legally it refers to leave something to someone to take care of. According

to Hanafi jurists, it means giving the authority to somebody to look after

his property (تسليط الغير على حفظ ماله)38

. Whereas, according to Shafie and

Maliki wadiah is an authorization of the owner of the property to others to

look after his property in a specific way:

Maliki`s definition (عبارة عن توكيل على مجرد حفظ المال)

Shafi`s definition: (العقد المقتضى لالستحفاظ)

Hanbalis definition: ( توكيل في الحفظ تبرعا)39

.

In summary, Wadiah can be defined as “any belongings left by the owner

or his representative with somebody to take care of them”.

Legality of Wadiah

Wadiah (deposit) is among the permissible contracts and dealings in

Islam. Its legality is enshrined in the Quran, hadith and ijma’.

37

Muhammad al-Nasafi, Najmu al-Din Abu Hafs Umar ibn Muhammad. Talabat al-talabah fi al-

Istilahat al-Fiqhiyyah, Beirut: Dar al-Kutub al-`Ilmiyyah, 1997.pg.176. 38

Ibid.ibn Nujaym, al-Bahr al-Ra`iq. Vol, pg 464. 39

See various definitions of wadi`ah Ibid. al-Maraby.Takmilat al-Majmu`. vol.15, pg. 360-363.

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Allah says:

ربه ) (فإن أمن بعضكم بعضا فليؤد الذي اؤتمن أمانته وليتق للا

”but if you trust one another, then let him who is trusted fulfill his trust,

and let him be conscious of God, his Sustainer”(2:283).

The messenger of Allah says:

ة إلى من ائتمنك ول تخن من خانك()أد األمان

“And perform the trust (amanah) to those who give trust.”40

“Execute trust to those who entrusted you and do not betray those who

betrayed you”.41

Majority of jurists have agreed that wadiah is a necessity and requisite for

protecting mankind and as such should be allowed.42

The proprietor of the

thing is known as mudi’ (depositor). The person entrusted with it is

known as wadi’ or mustawda’ (custodian) and the deposited asset is

wadiah.

40

Shawkani, Nail al-Awtar,vol 5, pg 297.al-Asqalani, Subul al-Salam,vol 3, pg 68. 41

Ibn Quddamah, al-Mughni, v 6, pg 382. 42

al-Sarakhsi, al-Mabsut. v11, pg116. See also: al-Zayla`i, Tabyin al-Haqaiq. v14, pg196.

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In shari`ah it is encouraged for anyone who has trust in himself to take

wadi`ah out of helping others43

.

Basic Rules and Conditions of Wadiah:

Hanafi jurists mentioned that cornerstone of wadi`ah is offered from

depositor and acceptance from entrusted person (Ijab and Qabul)44

i) Offer (Ijab) and Acceptance (Qabul): Majority of jurists are of the

view that there must be a valid offer and acceptance made in wadi’ah

contract45

.

ii) Contracting parties: The depositor and the custodian must be

persons of sound mind46

. Hanafi school of thought views that attaining

the age of maturity is not compulsory so far provided consent from

parents to do business is obtained47

. On the other hand, majority of

Muslim jurists share the common view that the contracting parties must

be eligible to be a wakil, i.e. they must be persons who are of sound mind,

43

al-Marabi. Al-Qadi Dhiya` al-Din Abu `Umar al-Marabi. Takmilat al-majmu` sharh al-muhazzab.

Beirut: Dar al-Kutub al-`Ilmiyah. 2002. V.15, pg357. al-Mawurdi. Imam Abu al-Hasan `Ali ibn

Muhammad ibn Habib. al-Hawi al-Kabir. Beirut: Dar al-Fikr. 1994. v10, pg385. 44

Badr al-Din al-`aini al-Hanafi, Mahmud ibn Ahmad ibn Musa. al-Bayanah Sharh al-Hidayah. Beirut:

Dar al-Kutub al-`lmiyyah. v10, pg106. 45

Ibid. Zakariyah al-Ansary. asna al-Matalib. v6, pg179. 46

al-Qarafy, Shihab al-Din Ahmad ibn Idris ibn `Abd al-Rahman. al-Zakhirah. Beirut: Dar al-Kutub al-

`Ilmiyah., 2008.v7 pg304. 47

al-Kasani,. Bada’i‘ al-Sana’i‘, ed. Muhammad Khayr Ta`mah Halaby. 2000. Beirut: Dar al-Ma`rifah.

v6. Pg326.

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attained the age of maturity and intelligence.48

Jurists also mentioned that

whosoever is eligible to be wakil, is allowed to be to be trustee and

whosoever is eligible to become a principal is also allowed to be

depositor. 49

Further, the custodian must ensure his capability to safe-keep

the deposit. He must withdraw himself from taking the deposit if he

cannot ensure that he shall return it to the depositor at the stipulated

time.50

iii) Deposited Property: The deposited property must be owned and

deliverable, if it is lost or undeliverable it cannot be the subject matter or

capable of being subjected to physical possession.

Types of Wadiah

Wadiah can be classified into 2 types namely: wadiah yad amanah (trust)

and wadiah yad dhamanah (guarantee)

1-Wadiah Yad Amanah ( Safe Custody based on trust)

Initial state of contract wadi`ah is a trust contract which means wadi` acts

as a trustee and takes care of the funds. The custodian / wadi` has the duty

to protect the property by not mixing or pooling the properties (money)

48

Ibid. al-Qarafi. al-Zakhirah . v7, pg304.Ibid. al-Maraby, Takmilat al-Majmu` v15, pg365. see al-al-

Kasany, Badai` al-Sana`i. v14, pg.98. 49

Ibid. al-Sharqawi. Hashiyat al-Sharqawi. v3, pg208. 50

Ibid. Zakariya al-Ansary. asna al-Matalib. v6, pg178.

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kept under custody, not using the property and not charging any fees for

safe custody 51

.

The custodian must also return the deposited property to the owners at

any time upon the request of the depositor52

.

In the above mentioned case, the wadi` is not responsible for any damage

of the property so far he abuse the authority upon the property.

2- Wadiah Yad Dhamanah (Guaranteed Safe Custody)

Yad Dhamanah is known as hand which possesses an item without

consent of the owner or, with his consent but with intention of taking

possession of the item. If the wadi` guarantees the refund of property kept

with him, and also ensured to refund the item upon request in this case we

regard the contract as yad al-Dhaman 53

.

Jurists mentioned instances whereby the trustee will be regarded as

Daamin for example, if he take from the trust and return it back later or

do business or transaction with it or he destroy the property deliberately

or he mixed it with another property in which he could not be

51

al-Khurashi, Muhammad ibn `Abdullah ibn `Ali. Hashiyat al-Khurashi. Beirut: Dar a-Kutub al-

`Ilmiyyah. 1997. v 6, pg 472. 52

Ibid. Zakariya al-Ansari. Asna al-matalib.v 6, pg181. 53

Ibid al-Mawardi. al-Hawi al-kabir. v8, pg357-361

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15

differentiated, or he or benefit of it. in these circumstances, the hand of

trustee will be regarded as Yad Dhamanah54

.

The contract of wadi`ah undeniably brings benefit to the contracting

parties. However, it must be borne in mind that the person entrusted with

the deposit or properties must keep the deposit safe according to the

custom (uruf) and norms of certain place. Upon being requested for the

return of the deposit, the custodian without fail must be able to return the

deposit.

Tabarru` (Donation)

Tabarru` literarily comes from Tabarra` which means to do something

without compensation. Juristically, there is no specific definition from

jurist in respect of this term, however, the definition might be inferred

from the application of Tabarru` in Islamic jurisprudence, hence, we can

say, the aforementioned term can be defined as giving something out

without compensation55

.

54

Ibid al-Marabi. Takmilat al-majmu`.v15, pg. 404. See also Ibid. Zakariya al-Ansari. asna al-

Matalib.v6, pg.189-198. See also Ibid.al-Kasani. Bada`i‘ al-Sana`i‘ (2000) v6, pg. 333-337. 55

Ibid. Ibn Qudamah.al-Mughni. v7, pg.554.

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Types of contract of Tabarru‘

Contract of Tabarru` (gratituous) is the opposite of contract of

Mu`awadhah,(commercial exchange). It is also defined as unilateral

contract. Tabarru` has many forms in Islamic jurisprudence which

includes among others hibah, sadaqah, wasiyyah ,waqf and I`arah 56

.

Legality of Contract of Tabarru‘:

Islam encourages Muslims to favour and help each other, and contract of

tabarru‘ is a form of helping others, there are many verses of the Holy

Qur`an and authentic Sunnah of the Prophet (s.a.w) which encourage

Muslims to benefit and lend hand to others. There has been ijma

(consensus) among the jurists that contract of tabarru‘ is permissible.

wever, tabarru‘ also can be categorized under one of the five legal

rulings: Wajib, Mandub, Mubah, Haram and Makruh. For instance, waqf

for sinful things is regarded Haram while the initial state of it is mubah57

.

Pillars of Tabrru`

56

Ibid. Ibn Nujaym, al-Bahr al-ra`iq, v4, pg.619. See also Ibid ibn Qudamah.al-Mughni. v7, pg.554. 57

al-Ramli, Shams al-Din Muhammad ibn Abi al-`Abbas Ahmad ibn Hamzah ibn Shihab al-Din.

Nihayat al-muhtaj ila sharh al-minhaj. Beirut: Dar al-Kutub al-`ilmiyyah. 1993.v, pg 369.

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According to Malikis, Shafiis and Hanbalis contract of Tabarru has four

cornerstones which are58

:

1- Mutabarri` : Donor

2- Mutabarri` lahu: who accepts donation

3- Mutabarri` bihi: item the person wants to donate (donation) which is

subject matter.

4- Offer and acceptance: contract language.

As for Hanafi school of thought, they regard only contract language for

all the contracts of Tabarru`59

.

Effect of the contracts of Tabarru`:

If any of the contract of Tabarru` fulfil all the conditions and

requirements of the contract hence the ownership will be transferred from

donor to the donated. However, there are some Tabarru‘ contract in which

scholars are differed in opinion, for instance, Waqf, there are various

opinions regarding the transformation of the ownership. According to

Hanafi, Shafi` and preponderant view of Imam Ahmad, the ownership of

waqf will move from the waqif (giver or donor) to the ownership of

Allah. On the other hand, Maliki and a view from Imam Ahmad are of the

58

Ibn Najjar, Taqi al-Din Muhammad ibn Ahmad al-Hanbali. Muntaha al-iradat. Beirut: Dar al-Risalah.

(1999).v3, pg 435. 59

Ibid. al-Kasani, Bada`i al-sana`i, v10, pg502.

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opinion that ownership of waqf will still remain under the management of

the waqif (donor).60

Al-wa`d

Al-wa`d is derived from word wa`ada which means to promise. The

majority of jurists hold that fulfilling promises is a good attitude for

Muslims. The basis of that are verses from the Holy Quran and authentic

hadith from the Prophet (s.a.w) and ijma` (consensus of jurists).

Imam al-Bukhar has dedicated a particular chapter on making hibah and

promise and the donor or promisor dies before the execution of the offer.

Hadith Jabir bin Abdullah bin Amru the Prophet said to him, “If the

money (jizyah) of Bahrain arrives, I will give you an amount of it.” But

that money of Bahrain did not arrive until after the death of the Prophet.

When the awaited money arrived, Abu Bakar announced “whoever has

debt from Rasulullah or any promise should come forward and make a

claim. I came to Abu Bakr and informed him about the promise make by

Rasulullah to me and Abu Bakar paid me 1000 dirham.61

60

Ibid al-Ramli, Nihayat al-muhtaj ila Sharh al-minhaj, v5, pg.388. 61

Al-Bukhari, al-jami al-Sahih, hadith no. 2296, Beirut: Dar al-Kutub al-`Ilmiyyah (2003) 3rd

edition, pg. 411.

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According to Badr al-Din al-Hanafi al-Ayni, there has been an ijma

(consensus) among the jurists that to other than the Prophet SAW, the gift

will be owned by the heirs of the giver if he dies before executing it. Even

in the right of the Prophet, it is not binding. What was done by Abu Bakr

actually on the piety and voluntary basis (tatawwu‘) and out of admire of

the Prophet’s habits in fulfilling his promise.” Al-Ayni also narrates an

ijma that the one who makes a promise will not be considered as one of

debtors (who is liable because of his promise). And there is also no

dispute that performing a promise is an act of courtesy and good

manner.62

However, jurists differed on whether a promise is binding or not.

According to the majority of scholars, it is generally understood that

fulfilling the promise is not wajib (obligatory) rather it is mustahab.63

Ibn

Hazm asserts that if someone promises another to give him/her money or

to offer him/her a job, whether he made an oath on it or not, it is not

binding upon him to fulfil that promise.64

62

Badr al-Din al-Hanafi al-Ayni, ‘Umdat al-Qari Sharh Sahih al-Bukhari, Beirut: Dar al-Fikr, vol.

20/135.

63 al-Nawawi. Imam Abu Zakariya Yahya ibn Sharaf. Raudhat al-talibin. Beirut: Dar al-Kutub al-

`Ilmiyyah. 1992. v4. pg 451. Al-Kasani. Bada`i al-sana`i, v7,pg.84. See also al-Qarafi, al-Furuq. v3, pg

95. 64

Ibn Hazm,Abu Muhammad `Ali ibn Ahmad ibn sa`id ibn Hazm. al-Muhalla, Beirut: Dar al-Afaaq al-Jadidah.1933. vol.8, pg.28.

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However, some Hanafi said if the promise is associated with a condition,

it will become binding.

)ل يلزم الوعد إل إذا كان معلقا(

Furthermore, it is also affirmed in Article 84 in Majallah al-Ahkam al-

‘Adliyyah the aforesaid mention view.

.(المواعيد بصور التعاليق تكون لزمة)65

“Promises in the conditional forms are binding”

Majority of Malikites also argued that the initial promise is not binding.

However, if the promise is associated with a cause leads the second party

to incur a cost or suffer a loss, it becomes mandatory upon the one who

made the promise to fulfil that promise.66

65

Haydar. `Ali. Durar al-hukkam sharh majallat al-Ahkam. Beirut: Dar al-Kutub al-`Ilmiyyah. 1991 V1,Pg.77 66

al-Qarafi, Shihab al-Din Ahmad ibn Idris. al-Zakhirah, Beirut: Dar Garb. 1994. v6, pg 299.