Fiqh of Transactions #12 – Debt Transference and Guarantor-ship
Channel: Hatem al-Haj
Series: Hatem al-Haj - Fiqh of Transactions
File Size: 32.77MB
Episode Transcript ©
Transcripts are auto-generated and thus will be be inaccurate and at times crude. We are considering building a system to allow volunteers to edit transcripts in a controlled system. No part of this transcript may be copied or referenced or transmitted in any way whatsoever.
Today we will go over bubble how Allah called Berman Wonka fella so and how Allah is the transference of demand is guarantee of payment and Capella is guarantee of appearance and we will see what everything means here.
So that transparence
Moroccan Allah tala said woman Oh Isla de la Manali Miss Lu for the African burial Mohit woman ohira Mali in lezama Ania Nicola rasulillah Rasulullah sallallahu alayhi wa sallam either br Kumara Mali infinite bar.
And that's basically all he said about the transference. When a creditor agrees to be referred for collection to someone who owes the debtor an equal sum, the debtor becomes exempt. If a creditor is referred to a solvent debtor, he or she must accept the transference and transference is with an E here.
This is because the Prophet sallallahu Sallam said if you are referred to a solvent person for repayment you should agree if you are referred for solvent person for repayment you should agree
this is one of the Hadith here and this is reported by an Bukhari and Muslim from viharaya ramen or hayleigh Allah Marie in
memory Infineon is
to be on.
How to come
to be our means referred to
if preferred, is if
they are one of you referred to huddle, comm one of you
someone who hasn't, you know, hasn't been a money No, not broken, not
broke, I'm sorry, not broke.
Funny artbar he must accept,
he must accept.
Okay, so what does that mean? That is the main hobbies here. So that's why I wrote down the profits, as Adam said, when one of you gets referred to us or to someone solvent for repayment, he must accept the transference. He must accept the referral, he must accept the transference, he must accept it however. So Islam wants us to be free of that as much as possible, right,
wants to remove that liability because that is a burden. It's a burden in this life and in the Hereafter.
So it's not once the relievers release us from this liability from this huge burden, however, is one way to do this. You know, if I have x, y, and z and x, give y some money y gave z some money, you know, x,
y borrowed $200 from x and z borrowed $200 from y. So, y is owed $200 and y owes $200. Simply the profits are salami saying
goes to x and tell them you lend me $200 and z borrow $200 from me go get your $200 from z and instead of z pain, why back and why paying x back
z will pay x back
so that we will move on
Basically have only one
one debtor in this case.
Is that clear? So that's basically However,
there is not much about however the
you know, if you want, we could sit down for hours here to talk about how but the the point here is that
this command from the Prophet sallallahu wasallam, for this command from the professor's that x
Why did I Why did I erase this
this command from the Prophet sallallahu Sallam that when y prefers x to z, if z is solvent
that's the Hanbury. That's my take on it. Now, they say if z is solvent, Z is not delinquent.
And the z can be brought to court can be brought to court
I have those three conditions here. if z is solvent, the Z is not that nkwanta z can be brought to court
then when y says z go get your money from x
z must accept does not have the right to decline.
I owe you $200.
But I am owed $200 by x, go get your money from x has just you know and instead of you know
me being liable to you you access liable. So why should we say no?
The Hana vs. Maliki's and shafia is said that z can say no.
you You're the one you're the one who borrowed the money from me, I don't care. Well, you know, I don't know, XML. What business do I have to do with x? And you know, you borrowed money from me, you give me back my money. I'm entitled to this. So what would the Hanafi is Madison Shafi say to the Prophet saws.
They say that the Prophet is recommending for z to accept the transference if he knows x is if he's not afraid that x will not will not pay him as you know, if x is equal to him, there is not much difference between x and y. Then the prophet SAW Salem is recommending for z to accept that transfers that however,
so, how could they say this when the Prophet sallallahu Sallam said
let him accept the transference it is a command this
but there is a command against that principle. So the principle that I am old that I you know that you owe me the money will basically stand between that command hand, the implication of job here
I have another principle that would weaken the implication of the command from job to job from an obligation to a recommendation.
Are they making sense?
Oh, this is one of the more people that have the MATLAB so you guys have to basically cheer us on a little bit.
Who's Who is going to be Hanbury here and say that he must accept the transference.
Oh, that's a big betrayal here.
It will say x must accept
the transfer is that somebody will even go farther than this. And say once y
says once y says the x get your money from z. Once y says the x you know z owes me the same amount.
Go get your money from z.
y is relieved from the debt spontaneously.
Automatically, without the ruling of a judge, it is x that will have to go to the judge to deny to decline that, however, on one of these grounds
on one of these grounds
so it is automatic.
That's when somebody say,
you know, the medic, the heart of his medical answer is,
say it's a recommendation
for X to accept that transference and get his money from z. But if x says, we're doing it the other way around, by the way, right?
Okay, who gave money to whom X to give money to y, why give money to z. So now z has to pay y back y has to pay x back.
Instead of this what now we're doing it right. And instead of this, why we'll go to X and say to him, Go get your money from z. And instead of the $200 going back like this, through this route, it will just go like this. That's it we're done. So why will say to x go get your money from z
x must accept it's not that he must accept once y said that x is done. x now is owed money by z not y.
Okay, at least we are going with that. It was apparent text with the apparent implication of the text. Command means obligation is out we are here to kumada Maddie in Fayette bar when you are referring to someone solvent, you must accept the transference or the howl.
Honestly, the half is American and Japanese are making sense as well. I mean, the principle here is that if you borrowed money from me,
I am owed this money by you. I am entitled to getting repaid by you.
You go figure out who owes you money, get that money from them and pay me back. That's what the the johore are saying. But the dimora saying that the Prophet is
hext accept the facility to relieve someone from that and facilitate the matter instead of we have to
two payments have to be made here it is only one payment has to be made.
We should probably change this as must thank you for pointing this out. But in the commentary, did I say that?
and translation of the Hadith.
Okay, well, the translation of the Hadith
should would still be reasonable. Because the translation of you know, I don't want to do any translation also the Hadith?
No, we will at least the translation of the Hadith will accommodate the do more. Because should could actually mean must.
You know, show the you know, in the translation the hobbies showed is good enough. But yeah, in Yeah, but the honeyberries are saying must.
You're not being with the homies. Right. I know.
and buy, you
know, well, you know, do you think these are being reasonable, they are telling you, given that z is solvent, not delinquent and can be brought to court. What else do you guys need?
brought to court quarterbacks that X has the ability to bring z to court. They even said they even said if z is
hexus father, you you can you can do this because xe cannot demand a payment from his father.
It is not. No, no, no, no, no Keep in mind, there is no headache for x, x is old, x is over $200 by y. Now x is over $200 by z, where is the headache?
That is why we're saying that z ought to be solvent, non delinquent and can be brought to court.
But keep in mind even if you guys happy Medicare Shafi
really keep in mind that at least they are making some use of the hubby's they are saying that it is recommended for ex to accept to the transference and to go, you know, get his money from z. They are not completely dismissing the hobbies here. They're saying it's a recommendation not an obligation on X. It's a recommendation for x not an obligation on him to go get this money from z and accept the transfers. Because however, that transference serves a good purpose.
It is not you know, purposeless, it serves a good purpose, why we'll get out of it will not have to worry about it. And who acts will get his money from z.
Because y can be insolvent as well. He can pay it himself. So x may have to take
take it as money.
For the end The end, in case you know, there is but keep in mind, keep in mind, that often times the matter is not that complicated. Oftentimes, if we are like, if we are merchants in the market, and we know it all of us know. And then this guy took 200 pounds from that guy, and then the guy in the next shop, you know, took 200 pounds from the other guy in this shop or across the street or down the the sort of the block.
You know, when you tell them, you know, hey, you know, I owe you $200 and come out there, you know, across the street owes me $200, can you go get yours? Can you instead get your money from her mother and I know Muhammad and I don't think that Mohammed is delinquent or anything and then I accepted us to relieve Holly from his that it's a good thing. It's it's, you know, there is a good purpose in that transference. Now, is it obligatory? If you don't think it is it should be obligatory? That's fine, you're with a dimora. That's fine. But more for that it must have, you know, the if people follow a method, they take particular pride in them for that, particularly the peculiar positions of
the mazahub. Because they are sort of the signature characteristics of the mother. Anyway, I'm not telling you that you have to I'm saying that the jury makes sense. Yes.
Something for him, please.
because maybe he wants to record the new contract of debt, or he has to travel to pay. So can he say yeah, I'm gonna take on the debt of 200. But I also want an extra $20 because I have to pay my attorney or something like that 717 to transfer that to my car. No, he cannot, he cannot ask for more money.
Now, that will be basically
the idea nowadays of, you know, certain administrative fees and all of these things.
That does not apply to individuals, by the way it applies. You know, so
parameter here, for instance, it's an administrative fee, the Court of administrative fee. That is the basically,
when when we consider a fee, some of the scholars say, you know,
it's it's basically what? How do you go?
late fees? Okay. So late fees?
Can you charge late fees?
Because late fees are basically a river
is not an approval or
a surprise. So no, it's not surprising they fees are river, because if you have liability,
liability when we talked about that, that is a liability. And if you have a liability, or you're indebted to me, I cannot come to you and tell you, you have been late in paying back that liability are that you have to pay more.
If you don't pay on time, and then I impose late fees on you that is River.
But everybody does that, you know, you can to get any service you can to get your water, electricity, late fees are all over the place. So you were always paying late fees, that is fine, because that is you know, it's not it's beyond your control. But let's say and I've got this question yesterday, from a like an Islamic Center somewhere and
in a different state, they're renting out houses. And the you know, they know that some people are delinquent, no matter how good they look, they could still be delinquent, or
so they were asking if they can basically charge late fees?
The answer is, for a big company to say for a big company to say, if you gotta pay on time, I have to have an like number of employees to actually chase those late payments, and the cost me money. And I will impose a, like a sort of a fixed price price tag on every late fee. It is not, does not you don't accrue more with the passage of time. It is fixed. And it is basically for the administrative fee. It's an administrative fee for the effort of recollection.
That is when the scholars, contemporary scholars started to show some flexibility in the you know, but if it is a
particular entity you like rent out your
doesn't make sense to charge administrative fees. How do we get out of this?
How do we get out of this? We get out of this and that was my recommendation for that master that Islamic Center. My my recommendation is that they impose late fees and make them payable to a third party like Islamic Relief, for instance.
In this case, it is not a benefit for the loner.
But at the same time, it's a deterrent for the tenant, it's not a benefit for the landlord, it is a deterrent for the tenant
is not clear. And that would be the way we have and that we could even apply this in Muslim countries across the board. imposed late fees, make them always payable to a third party. The government even can take this money and dispense it in good ways. If they ever do,
you guys don't want to
get found out today. That's fine. Yes.
It has to be it has to be an undeniable that you know, it's that that has to be acknowledged by z and then the D must be acknowledged
And the one something else that I have to tell you, that the depth has to be an established that it cannot be a
had that that could be irrevocable, what is that could be irrevocable, you know
selam that's for instance, because if you if if the, that in the case of selam you know, I, the, you know, the southern contract the advance payment contract, that you know, if I if you owe me the commodity, if you owe me the commodity or the commodity, sometimes it could be a price, high cannot use this for transference
or at least according to the majority and according to the stronger position of the company must have even Tamia Kamala said otherwise. But you know, we're talking we're talking about the majority position here, I cannot use this for the transference also the subak before consummation is not an established that I cannot use this, the dowry before consummation is not established, this is half a bet at least can be
So, in this case, the debt has to be acknowledged the debt has to be established, the Z has to be solvent z must not be delinquent, and z can be brought to court.
And in this case, the homebodies will say that x must accept the transparents hana fees Maliki's interface, are saying that x is encouraged to accept the transfers. That's the chapter one.
Okay, now, the mine is guarantee of payment remember nakodar not him a whole lotta Allah said
this, this from having a Kodama here.
this, this rally from Abner Kodama here is counter to the mother.
Okay, okay. But Robbie, here, okay.
Okay. Okay. robbia here means he accepted
that the one who is being transferred No, no, he already what he's the one who's initiating the thing. So already here.
It's a little ambiguous. Robbie, here. He may have an academic, if you are transferred, and then you accepted
them that the debtor becomes exempt. And then he said that you must accept must accept.
So how do you differentiate between this this would be a declaratory law. And this would be a defining law. This is hochma a.
And this is hockomock Lee.
So the first sentence he said, if you are referred to someone solvent, then you accepted that then the debtor becomes exempt. This is not cognitive Lee, he's not saying to anyone that someone must do. He's describing that that the debtor will be exempt to talk more about it is a declaratory law and declares that the debtor is exempt. Do you understand the difference between hyper water and hermetic leafy Hawkman was the declaratory law is basically a declaration of something declaration of the validity of an action a declaration of the invalidity of an action it talks about no no hindrances, it talks about the root and so on and so forth. No one is being required by the Hawkman
rather a to do anything. No one is required by the Huffman Walker to do anything or to abstain from anything and help them with tech leave either the defining law is basically addressing the Macan left to do something or to abstain from something. So it helped me here is talking about the effect of this transference. Not talking about you know anyone having to do anything or not, the the effect of the result of this transference is that once
tails x, get your money from z, and x accepts the transference.
Why is exempt?
Why is exempt?
Now, he came in the following sentence and said he came in the following sentence and said, when y prefers x to z for repayment,
x must accept that is called dogmatically defining law. He's talking to x now that you must accept.
But in all honesty,
this word here means that the measurement for them and saying
that although x must accept
their the, basically, the exemption of y from the debt is not automatic, it is contingent upon x is acceptance,
which is make sense, it's not a problem. You know,
the fact that x is obliged to accept does not mean that the exemption for Y is automatic. The exemption for Y is contingent upon the acceptance of x and the sherea commands x accept
now, is then, then, according to this the language that I use, I have no means to say that the exemption for why is not automatic.
This is not the combative position.
The Hanbury position is that the exemption for why is automatic, the burden is on ax to go to court and say I am not accepting this transference because z is delinquent, because z is you know, not solvent or insolvent or because because I can bring z to court
hate the language that for them as using puts the burden on who
know on why
on why, because he has to convince X to accept that transparence for and he has to take x based on this language. Let's say for the here the word x accepted let us say x did not accept. What would this area do in this case, if the honeyberries are still saying it is worship on X to accept the god I will say it Why go to take x to court and the judge will force him to accept that transference
that is according to the language that Mr. Padilla is using here. Well, according to the HANA fees and Medicaid and shafia ease, you know, no one would be able to force him to accept, period. Even the judge, you know, no matter what z is solvent, Z is this z is that is that. I don't care. You borrow the money from me, you give me back the money. That's the kind of these baggies and Sharpies. But we're talking about the Hanbury position here. The language that Mr. Padilla uses, makes the exemption of y contingent upon the acceptance of x. If x did not accept why would take x to court to force him to accept
the Hanbury method,
the stronger the basically the authorized view within the club is that once y reverse z, the referral is automatic.
And then the burden is on X to take y to court and to say he referred me to Z, but z is insolvent. And then the judge will revoke that transparence if the judge found z to be missing one of those three criteria, you know, solvency
non non delinquent and can be brought to court.
Scan and because it's
dead transparency, you guys really enjoyed it. It looks like
then the chef's and then the sex
of the man
in Burma who were in domina one who Domine Lamia bruh sobre de la Hema. What is a heavy moto lebuh to mention I mean Houma.
If a guarantor payment guarantees that of a debtor, the latter does not become exempt both the debtor and the guarantor are in
Did the creditor has the right to ask either of them for repayment is that clear. So x and now okay
x now gave y money
x Now give me y money, z went to x and said to him, I guarantee the payment,
I guarantee that payment or better yet X percent I am not giving you the money until you bring me and Teddy Bring me a guarantor of payment. And why brought x as a guarantor of payments z as a guarantor payment z now is the guarantor of payment. Okay, that she said,
when vamana Domine lamea bruh. If z guarantees the payment to x, y is not exempt. This is not a debt transference. This is just a guarantee of payment, not as a transference. Why is the liable in this case, x can demand his money from either one of them. Why? Because the Prophet sallallahu Sallam said nafcillin woman and both are hobbies that were reported by them is the first one from a warrior and the second one from a vo ma'am. So the first one is about the debtor why the debtor would not be exempt because the Prophet sallallahu Sallam said nefs are the more men
vidiian he had
it ready to take
your Cuba on I need to take classes in writing.
No, my husband always bad
in both languages in any language
Okay, so the naps the soul of the believer mahalo aka suspended meaning suspended from entering paradise or its place in paradise. benign, he suspended by the his that hacked until you pay Don who on his behalf. So, the soul of the believer is suspended from entering suspended by his that meaning suspended from entering his place in paradise or her place in paradise until it gets paid until it gets paid. So it means that why
would always be liable in this case. So why is the also liable because the prophets Allah send them say this
is Ximena, another word for barman, guarantor, guarantor, or guardian means liable, liable, the guarantor is liable, guarantor is liable.
So z will be liable, y will be a liable x now I can go get his money from him or her or her or her or him and anybody, either one of them, okay?
Or both of them. It's just that both are liable. So if he gets $20 from y and $50 from z, that's fine. That's just that he gets his money back from the two.
He can demand it from me whichever one for any style for a minimum of money and who, who barely other middle. If the creditor takes the due payment info from the warranted person, the debtor. Wherever the creditor equates the debtor the guarantor becomes clear of the liability. Now x took his money from why the original debtor
z now is off the hook. Right? That's it. That's it. I'm done. exempt from
z, paid x not y, z paid x, y is off, right?
Yes, but z can go to y and Amanda's money
because I guaranteed payment for you on your behalf. I pay that x. Now you owe me the money.
Now you owe me the money.
If y paid x z is done.
If If X to Y that's it.
I forgive you. You don't owe me money anymore. z
is done, right? If x told you I iclear, you have this have this guarantee.
Why is the level
because the clear end from the guarantee does not mean that he cleared the Y from the dead. He just cleared z from the guarantee, and he will go after why for his money, only the original letter is not clear.
That's what the sheet says here. What an output of Birmingham Jabra LLC. If the creditor equates the guarantor, the original debtor is not acquitted is not acquitted. Because when the creditor equates the guarantor, that with the creditor is equating the guarantor, from what from the guarantee. He's not basically foregoing his money
phase not forgoing the loan, or the whatever, you know, has dues, he's just quitting the guarantor from the guarantee,
with any style feminine Domine rajala II, if the creditor takes the new payment in full from the guarantor, the guarantor demands the money from the original debtor. So the creditor here, x
gets his money from z, z, then we'll go and get his money from y, z will now go and get as money from y. This is guarantee of payment. If x says the Z that that is a gift from me to you, what would the Hanbury say here, accept the Z it's it's a gift from me.
It is as if z pay that to x and x returning it back to z, z will still have the right to go back and get the money from y.
z still has the right to go back and give the money get the money from one. Okay. Now that is the guarantee of payment. The final thing today is the guarantee of appearance which will be quick and Sala,
which is in Colorado.
There are some sort of subtlety of these variations, and how they basically approach the two terms to avoid confusion. We're just doing the Hanbury thing here grafana is guarantee of
appears, What does kefalas mean in this case guarantee of appearance? I guarantee you no x
why owes x money? Why has to pay extra back z comes and says you know what goes to x and says as you know what? I'm not guaranteeing the payment, but I guarantee that on the due date, why I will
bring why to you know the place or you know, I'll make sure that y shows up on the due date. I will make sure that y shows up on the due date every Why does not show up on the due date what happens
as he has to pay the money
because he has to pay the money
and why die is
what happens nothing he has to pay the money you say no no, you will not have to pay anything because he only guarantee what what can he do with the guy
Give me the money.
But if z was the guarantor of payment and y dy and z will pay
and the the inheritors of y are liable and z is liable and if he paid he goes back and get it from the inheritors. But that is not if he is a guarantor of appearance. The guarantor of appearance will be exempt from the liability and obligation by the death of the guaranteed then the shape of this
woman can further be authority monarda
la z Ma Ma Li in Matta Barry aquafeed if someone guarantees the appearance of the debtor and the latter
does not show the guarantor of appearance, it becomes responsible for paying the debt. If the debtor dies, the guarantor of appearance becomes clear of liability. And that's an important difference between the cafe and the government. The Domine is a guarantor of payment, he saved two acts, your money will get back to you, on me, you know, it's on me your money will get back to you.
the Kafeel are saying no, I don't have anything to do with payment. I'm going to guarantee that this that y will show up. If he shows up and does not pay you. It's your problem. If he does not show up because he died, well, I can bring him the you know, I can bring the body here. So it's not my problem. So kefan is much more limited than the man in this case. And
and that's it for the for this particular chapter, we talked about debt transference, we talked about the mind and we talked about Katana
and next time, we will talk about Ron which is security deposit and the following time we will talk about soap which is settlements.
And you know, once we are done with soap, we would have finished more than half of backup transactions. We will have about you know 12 more weeks inshallah, to finish off transactions or the entirety of transactions and then proceed to
have inheritance and South
Korea does not provide