Fiqh of Transactions #14 – Chapter on Settlements
Channel: Hatem al-Haj
Series: Hatem al-Haj - Fiqh of Transactions
File Size: 40.40MB
Episode Transcript ©
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10 here and lambda
is that doormen Ascot about?
Karima who Baba liability
jazza Mazda Miata Allah Al bappi Sharpton Phil hibbity what a bra are we have now hakuho ala visa how we have about
jilla t So, let's go back and
so, let us read it in English first it's permissible for someone who is owed money to cancel a portion of that or to donate to the opponent meaning one who owes him or her money
some of the property in his or her hand provided that the creditor does not make payments of the rest a condition for the donation or cancellation.
Likewise, neither party may deny the other party his or her rights in return also the creditor may not cancel some of the debt in return for the debtor paying arrest in advance
okay. So, the chief said that it is okay a settlement and the basically
of your rights
to give up some of your rights ages. First of all, this is the chapter on what solid means what
Masada has worked righteous leads in Edina Manuel amilo sorry ha you know, so, so, he comes from righteousness comes from Salah, that which is righteous
conciliation between people is righteous
making peace between people.
So, the concept of salt is is not limited
over financial this
larger than this and that is why you will find that this is addressed in different sections. In fact,
between the spouses, you know, that's a big one
last minute data
theory does not have African level Bainimarama, if they want to reconcile between
them would assist the
arbitrator from his side hurts.
And if a woman fears the sort of the defiance or negligence or abandonment on the part of her husband, then there is no
there is no harm in the reconciliation was so high and Allah says and reconciliation, reconciliation is good.
Venus, people are prone to miserliness. It's a reminder because when you have when you're about to do so, it is a reminder that you have to get rid of your miserliness you're sure
you have to give up some of what you think is yours. You have to give up some of your stable some of what you think is yours. So it's about compromise. It's about giving up, meeting your opponent in the middle and have some of that with people who have no
who have no interest in some of what some have
heard, will never reach compromise will never reach settlement will never have sought
to basically overcome our miserliness or if we are to reach any settlement or agreement or move beyond
The disputation So, so is between us.
And he will find
is also between people, the
one of the disputation is over money, and that is what we're talking about here in this chapter, because in our section of what federal financial transactions and then
individuals, but not
that is why, you know, and and the books of, you know, people find some time that
you are part of this chapter two are basically forgiveness
being a good neighbor,
or the outcome of
neighborliness, I guess. So,
because this is sort of a between individuals, you know, like something happened, you know, that we have a wall that
part of the wall came down who fixes it, you want to basically build something on top of your floor and so, obstruct the sun for me, things like that, you know, and all of these things, the address
and they usually put them on the
poles, but they will put them under this chapter. And that is why, because sometimes it is hard for people to figure out where things are,
you know, half of knowledge is out where things are, where the information is, that needed information is because once you figure out where the needed information is where trustworthy needed information is, then you have half of knowledge. But then, you know, your familiarity with the books, you go over them several times, different physical books and so on, will allow you to figure out where the stuff you know, where can I find the rulings of such and such, nowadays, you have Google, so here has the different story.
But in the past, it used to be important that is why, at one point, you know, part of the evolution effect or development effect is that at one point, the Messiah started to write what mousou
mo suya, that is the plural of Mozilla and those who are in cycle pedia had encyclopedias will be alphabetically arranged alphabetically arranged. Therefore, if you're looking for
a job, you look under gene, and then you could find what I can do.
But But, you know, that's still important that seven
can't count on Google for everything.
So this is still an important effort to get you to where you need
to be particularly if you're not that familiar, but scholars who have read the bench
they know that we're the places where it is most likely to find those rulings, okay. And then we
by itself in the section
on individuals over money not over
here focuses on over money. Also in the books you may find this how to conduct some for arbitration reconciliation mediation between people over other dispute
may arise between them. And and certainly the arbitration is not that easy. It is not that simple, because you do need also to understand the fact if there is a dispute between two partners in a business you have to understand the fact of shaddock you know, corporations in Islam.
So, it is not that easy. But there are certain principles that are overriding principles in soccer and these are the ones that he will discuss here. This is not a substitute for him or
This is not to say that this is all you need to know, to conduct arbitration or mediation between the people because if this is an arbitration, you know, if this is a dispute that resulted from being partners in business, then you also need to understand the shadow can walk into an agency in corporations and so on and so forth.
that is somewhere between between
groups, whether they are
rulings are fighting
the rulings of jihad that is fighting between Muslims and non Muslims.
terms of reconciliation
would be on the concept of sorting
on 234 and five, what, what they talk about in this chapter would be two and three
jewels over money and over other disputes, what the focus here in this particular book on
it's a small book
and we're in the section
over financial dispute, I want to tell you about this, so, that
reduce your minds to just some over
siding between disputants
or money or people
dispute, okay. So, let's accept that you can
money, you can give up some of this.
dispute financial This
is when is dine,
dine is not necessarily a
loan that in which is a dining means what?
That, that is not always the result of a loan that we cover this Yes. Because of any liability, you could hurt someone and then that indemnity compensation for your
and with deferred payments and you owe the deferred payments, that you're in
30s in general, that in general that's what we're talking about. So,
that it is permissible for someone
that or to donate to the opponent who owes him or her money some of the property in his or her hand that the creditor does not make payment of the rest.
For the donation or cancellation. So I owe you that $1,000 Hi.
Okay, you tell me Okay, pay me.
called wave 4000 pay me 6000
you agree and you pay me that is fine. But if I tell you Hi well.
Only high will
waive the 4000 if you pay me the 6000
if you pay me the 6000. This is a danger that is hell. This is a vein that is already due. We will talk about the deferred that later. But this is a vein.
it will give you if you drop 4000
high will take 6000
you know if I'm the creditor, I tell you if you give me the 6000. Now, I will drop the fourth 4000 or I'll drop the four
Aren't conditioned that you give me the 6000. Now, that is not permissible. And
according to the Hanbury method, you cannot make the wave of the fourth
present upon the immediate payment of the 6000. The Shafi said you can and that is the other report
that you can that you may wreck, you may make this a condition. So, you can say, according to the Japanese and sort of the weaker report from the Hamdani Mazda, you could say,
a 4000 condition that you pay me this
chap here how many here
even if you think
Bible there is still one one report from the study method
allows this allows the creditor disambiguation or like clarification or extension?
Oh, you're gonna ask for the evidence that's extension.
The evidence here is that this is my money, this is my money. And it is it is about making the
making, it is about making the
contingent upon immediate payment as if there is some form of MMA, whether there is some form of exchange, I dropped this money you pay this money now, that is what they
allow in the authorized report that the Japanese said if it is my money, and I will waive part of it, then
making the immediate payment of the rest condition for my way
that there is no like
higher hobbies that can be particularly cited in this figure.
So, now, the sheikh said as long as you don't make it a condition and then he said we have now haka, who is likewise neither party may deny the other party his or her rights and return his or her rights in return. You cannot you cannot say
if you are the debtor or not.
is not clear. I think about this.
The people that
you cannot scale.
If you waive 4000
the third one, he said
a creditor can stop into that.
in the rest.
You owe me $10,000
you do it.
You know we're in February 2000. Can I wait?
What do you think of this?
Now when I say cheap now say pay me 8000
I want to
then we get to the
the form of
here as well.
This is a corner after
they're dealing with
this makes a lot
you're doing the reverse of river
And I am does not have a price. So, you cannot commodify time
is that clear commodification of time? What What is the idea of river river is to defer and increase the for an increase? Here it is advance and decrease, it is the opposite.
They're trying to gather the philosophical foundation of it. They say that the philosophical foundation of this is the same philosophical foundation of
commodification of time,
you know, putting value on time. Yes.
pretty much do is no extension. That is that is the diner that results from part of the from loan, we're talking about liabilities that resulted from loans. Yes, that is the dynavax results from a part of this came from the one who,
like me who I have to pay, I said, Look, I have eight grand right now. So it didn't come from the debtor, but it came from the lender.
Well, if the one who was owed the money gave you the money, then you could do a bra, you could tell them I dropped the rest.
So, the example you gave is that
you have a payment due to me on April 2, you came now and gave me half of the money it cannot be a condition if you gave me half of the money. If you gave me half of the money without making it a condition to drop the other. The rest or I'm making a condition if you give me half of the money I can do a bra bra is always fine. But it means that I dropped my right sort of absolve view of liability
you know I clear you have liability. Can I clear you have liability if I if you owe something to me I can always clear of liability. But the idea here is that it should not be there should not be contingency here.
But all depends on how they go about it depends on how they go about it, but they can you cannot make it a condition. But
yes, so, there is you know, hypnotize me I chose that it is okay.
They may have chose that it is okay to say about odd.
And he cited May, you know, certain reports from the righteous predecessors in agreement with the concept of the
DA drop, Todd, advance this drop in advance, drop some and advance the payment. This is but he's you know, he did not make this up you know, and he does not make things up.
This is a
weaker position within the shaft is a weaker position with a you know within the Shafi method and within the Hanbury method. And he chose that
even though it is not the authorized position in one of the four
at one point into the authorized position in the form of the authorized position, even if there is the center within them of authorized position, the form is used to be a final say.
And that is why he that is what he disagreed with. He said that there are positions within them that are stronger than the authorized positions. So he used to be to basically have his act era, his choices from the different mazahub not limited to the authorized position within the web. There is a group of scholars from the mother who had a different opinion he would consider this to be
a good enough precedent to support that position, or to act on that position.
What is the argument for the permissibility of this? We said the argument for the impermissibility of this is that it shares the same philosophical Foundation was at a bar, which is the commodification of time it's the reverse of Riba shares the same philosophy
Africa foundation of labor
but the argument for this is that this is a win win situation this is a win win situation this causes no harm to no one this exploits no one
is is it to an extent and exploitation of the need have the sort of the
of one of the two parties and that is why it is forbidden, but when you when I owe you money, when I only owe money and then you we agree that I will you drop some an advanced some because then there is no harm here
there is only the benefit of a bra is a bra is to clear my to clear me of liability and that is a burden and if I advanced you know the payment and you drop some of it, you got your money high was cleared of liability, it is a win win situation and there is no harm and the insisted that rubber is about increase for deferment, it is not about decrease for advancing
okay. Nowadays, most of the contemporary scholars in financial transactions
you know, usually most also the the, you know, how do I know that most we lie all the time.
But many you know, I can say most, you know, he can only say many
because I don't have statistics, I did not count all of them, I did not bring them in one room. So anyway, but many of the contemporary scholars would
they consider it to be permissible, they consider it to be permissible, because it results it facilitates matters clearance people have liability.
And also it's advantageous to the creditor who will get their money quicker
to invest it to use it
Then the ZX
con and water what what it is that is bizarre to me what Aqaba dolphin majilis
it is considered unlawful to take golden plates of silver, and vice versa. If one takes it, according to its price on that particular day. And if the two parties finished the exchange in the same setting, now, I owe you $10,000
you know what i can zap let's let us use instead of working rabbits. It's about the dinars in their hands. It's about the gold and the silver currencies. So first, you know have the lab Norma bloody Alon who went to the Prophet sallallahu Sallam and said to him, we sell cameras and
we sell. You know, we charge dinars and accepted their hands and sometimes we charge their homes and accepted in ours. And the Prophet sallallahu wasallam said to him, lab lava and kusa bzr yo Mia, madam Tata for Raka Baba in Akuma shade here
Man lamb, tata farakka,
nabasa there is no harm
and who has the heart to take it
to accept the other currency to accept the other currency be care Omaha steak and basically
Han that on the day on the day meaning on the day of payment on the day of payment. Madam Tata for Raka as long as you do not separate as you do not separate
webinar cool man shy
and there is what is it? How to translate this, huh?
Something is and something is that outstanding, okay, and there's still something outstanding, outstanding and something is still outstanding.
So what does that mean?
Okay, so if if I if I sell your camel for for 10 dinars, 10 dinars. And then you bring me the money later, you know, it's different, you bring me the money later is next week, next month, you just bring me the money. And then on the day, you bring me the money, you have Durham's, you have silver currency, not gold currency, I sold you for attending ours. So, what is happening here it is happening, what is happening is that we have a different transaction now, which is
called currency exchange, currency exchange. And now that we have this different transaction, which is called sarf, then what we need to do is what
that, you know,
let's say the 10 dinars the 10 dinars on the day of sale.
The 10 dinars on the day of sale were equal to 15 their homes.
The 10 dinars on the day of payment is equal to 20 their homes 10 dinars are not equal to 20. their homes one dinar is equal to 10 or 12. Between 10 to 12, their homes, one dinar is equal to somewhere between 10 and 12 dirhams. But I'm just like, you know, whatever. So
let's say that the 10 dinars were equal to 15. Durham's on the day of saying equal to 20 grams on the day of payment, how are you going to change them?
How are you going to get the 10 or 15? Or 2020? Good? That's the right answer, because it's about the day of payment, not the day of sale. Do you remember in the chart and the chapter of God we went over something that was, but when it comes to power, when it comes to power, the honeyberries make an exception that if the property that has been loaned, the value of the property fluctuates a lot, then you give them the value on the day of loan, not the day of payment. But if the value of the property loan that does not fluctuate a lot, then you give them the value of that property on the day of payment, not the day of loan, Yama, probably on the day of
loan, the day of
Generally speaking, if you want to remember something and you do not want to get confused, remember that is it. It's about the day of payment. When you have liability, and you don't have the same exact thing to return, you return it, you return the value of it on the day of payment, not the day of accruing the liability or incurring the liability and carrying the lead.
Okay, is that clear?
Then this prophesize Island said, as long as you do not separate and there is still something outstanding, meaning what? You don't come to me on that day and say, Well, I owe you 10 dinars. I bought this camera like, oh, you're attending ours. And 10 dinars. I don't have dinars. I have their hams. The 10 dinars is worth 15 their homes are worth 20 their homes, but I only have 17 how only have 17 not allowable.
You remember the chapter on Riba? Do you remember what we said in the chapter of labor? If it is,
things that share the same I have been using various the same effective cause of being used serious
substances we said gold silver and cash they are in one category gold, silver and cash in one category between gold silver and cash any transaction any exchange has to be worth yeah then be at hand to hand hand to hand. So, if it is gold for gold that has to be hand to hand equal for equal the other can be admitted under this is gold for silver silver for cash cash for gold, you know it has to be what hand to hand meaning an immediate transaction you cannot defer part of it, you cannot pay 17 now, and then three later
it has to be an immediate transaction nothing should be outstanding between you well if you don't have the $17 come back tomorrow with the $20 or the 20 whatever Durham's
So, the payment is based on the market value on the day of payment. Because, keep in mind that whenever you borrow anything whenever you borrow anything, it is it is either Miss Li or P me, Miss Li por ti me. Do you remember these two terms?
Miss means like myth Lee means the exact like it would mean here fungible, fungible things that are substitutable you know, like one pound of wheat, this one pound of wheat is just like this. One pound of weed is just like this one find a V they are the exact same thing. They are substitutable, fungible, non fungible, which are the key me there are non fungible, they are not the exact same. They're not the exact same. So you could say what, like a camela is non fungible, every camera is different for a piece of furniture is not quite, you're not talking about IKEA nowadays and stuff. But you know, in the past, there used to be things, everything is made, you know, unique, different,
So that's the difference between fungible and non fungible, that miss the Euro diversity theory, a liability is mithali, you return the method, this is the exact thing,
the PME, you will return the value of the PME, the non fungible, the mystery is that has to be returned, it's the exact same thing, except if you don't have it, then you're returning the value. And that is what the prophet Hassan was saying here. Well, if you don't have the habit, then you could return the value. But in this case, it is a different it's a new transaction. And that transaction here is hi oh, you dinars. I don't have them I'll give you their arms, that is a currency exchange here happening today, then all the rules of currency exchange will apply and has to be hand to hand it has to be an immediate transaction. And the exchange has to be based on the
market value today on the day of the currency exchange, not the market value, because because it would be unfair. If we base it on the market value of the day of sale, it would be unfair, because on the day of sale, I did not I did not say to you that counted for 15 Durham's, I sold it to you for 10 dinars, you can tell me Well, on the day of saying 15 dirhams or equal to 10 dinars, I don't care. I sold you the camera for 10 dinars. I want my 10 dinars, or I want the value of my 10 dinars today.
Then, so usually, you get in this mess all the time when use and when you do, you know, you're just like the weird transactions, I do advise people to use wire transfer and not get into sticky situations from a legal perspective, or from like some other perspective. But whenever you give someone like you give someone dollars here, and you tell them you know, so it give,
you know, give my brother Egyptian Pounds in Egypt.
That particular transaction is a very sticky transaction because it's a currency exchange. You know, it's it is a currency exchange and currency exchange is a very stiff transaction that has to follow certain rules. What you can do is you
Make one year Joaquin, but if it is not your kid, if he's acting in their own self interest, not as your agent, they're acting in their own self interest and they cannot be Joaquin and this is really a currency exchange, then you have to follow the rules of currency exchange, if you want here, so it has to be what you can do is make it an immediate transaction on the phone with the people in Egypt. You know, give the money now in dollars here and on the phone with the people in Egypt, Allah let your agent there. Give the money, you will be okay. According to the according to everybody, within two days, within two to three days, you'll be okay according to the Maliki's. But if you want to be
okay, according to everybody make this an immediate transaction over the phone, you're on the phone here, you know hand to hand, but it is happening simultaneously in two different locations so that you avoid all the stickiness of
soft currency exchange.
Yeah, but if one is if it is not the two people acting in their own self interest and one is simply an agent of someone else, then it is not a problem. It's not a problem. If I give you $10,000 and you're traveling to Egypt, and I tell you, you are my agent Take this money exchange it in Egypt and give it to my family
that is not a problem. You know, you are my agent you're acting gay you know, on my behalf.
So I give you the money now, you will give it whenever you
want whenever you get there. This is not a currency exchange, this is what Canada or agency
now then the SEC said come on Canada he didn't lie Allah Muhammad de la casa Allahu Allah say in
when someone becomes indebted to another and the defendant does not know or even know or remember it, they may
strive to come to a settlement, they may
or may they may seek settlement, they can come to a settlement, they can come to a settlement. In other words, you know, hi.
In other words, this is the other type of salt. That's the other type of salt. There are two different types of salt, there is the sun holla xR and Sankara in
the sun holla
that is solved with acknowledgement a car means acknowledgement and then there is a solid holla in car
which means what son had despite denial somehow despite negation or denial, so despite negation in the sun holla uproar is agree is agreed on its permissibility between the Messiah soul holla and car soul despite settlements despite denial is okay according to the HANA fees medic is a combat is not okay according to the chef is because the chef I say well if you are denying given this somehow halal haram and or haram halala, then you can't get out of the hit. It is a dilemma because you know, if you're denying the new or the solid to you,
makes Hello that which is harm or harm that we just had. The three other mother have said no, it doesn't make Hello that which is harm or harm that which is harder. It is basically clearing yourself of any liability. Even if you're thinking that you're not liable. There is self interest here in being free of liability, protecting your reputation protecting, you know, avoiding contention, avoiding disputation
reaching a settlement in this case of someone claimed that you owe them $5,000 and you tell them no I don't owe you any money. But I'll give you three
just like that, you know, but don't try it with me.
Now but if because here if I
idea here is that claimant does not have enough proof to take you to court, but the claimant to have some sort of like, there is some possibility, some plausibility that you actually owe them some money. And you want to clear yourself of liability or disputation and just you want, you do not want the headache.
So you can deny
Nova but the idea is also the claimant will have to have some liability, there has to be some circumstances that would make the claim plausible.
Otherwise, you can find that then you can take them to court, but if there is, like, you know, so companies all the time do this. Companies all the time do this, they acknowledge fault. They don't acknowledge fault, they reach a settlement without acknowledgement of fault, so that they are not liable
in criminal court, but, you know, so they settled the civil case, out of court or in court, but they deny so that they are not taking to the criminal court, they deny any fault or any liability so that they are not taken to the criminal in this case scenario. This assault harder in card. This is settlement. Despite the denial, the company denied any wrongdoing. The hospital denied any wrongdoing, they still reached a settlement with the claimant, because they do not want the headache or they do not want their reputation to be ruined. Or they do not want the bad PR. All of the all of these are interests for individuals and for corporations and entities that would validate sun holla
in car in the handbag in the Hanafi, Maliki and Hanbury.
So the sheikh says when someone becomes indebted to another end, the defendant does not know of it.
They may come to a settlement, they may come to a settlement. So a settlement in this case would be permissible, despite the night which is so hot in car.
does that mean does that mean that it is halaal for the claimant talent for you to claim that I owe you $5,000 without, you know, without being true without this being true? Certainly not. He says here for incana huduma. Yeah, Allah mukha Zeb NFC for some property loan fee hack. If one of them is intentionally lying or knows that he's lying, then the settlement is invalid for him or her, that settlement that and then this would be acclimated nazmul Bartlet oculomotor. Combat a combat battle don't devour your wealth among yourselves or between you. But bottom,
you know, unlawfully. So, certainly that is haram there is no, there is it is, you know, the song here for the
for the defendant, the defendant who does not know of this claim or does not recognize or acknowledge this claim. It is basically to clear them of liability and to save them from this mutation, clearly of liability and save them from disputation. Now, why does he say if one of them is intentionally lying, because he could be lying? Not intentionally, yeah, okay. But he knows that he's lying most of the time, and that is what people fail to understand that that is why there is so much disputation most of the time, the the opponents are well meaning it is their misunderstanding, you have to understand that people have different levels of understanding.
And perspectives may vary, and their understanding may vary. So that claimant may, in fact, may in fact, believe deep in their heart that you owe them the $5,000 when you don't you have been in partnership yet this that they forgot you paid them but something happened, something happened that resulted in their misunderstanding
or their you know,
which is confusion.
So, and then the and in this case, if you reach a settlement, they will not be at fault before Allah subhanaw taala, because it was their misunderstanding did not miss in not miss intent or not, you know, intentional line or fraud. So if no fraud is involved, no one is at fault and the settlement would have basically ended the disputation, which is a desirable outcome. If some party knows that they are lying, then that party will not be equated before last one.
And then they'll have earned an enormous sin be responsible for it.
Then the sex ed woman Kerala who happen Allah Raja deny Allah Monica, who first polihale ages, if someone is owed something of unknown value by another person, they may strive to come to a set of steps, you know, so we have high know that you owe me money, you know that you I know that you owe me money, you know that you owe me money. We agree. But we're and we can't really remember how much it is, you know, could have been one or $2,000 we're not we can't really both of us for forget, then we could agree on a settlement, you know, come up with an arbitrary number that we agree on, and the disputation the outcome, the desirable outcome here is we recognize that babbles soul is to
recognize our limitations as human beings at our limitations in discerning you know, what? rights and obligations discerning you know, our rights and obligations
and be an accurate and precise about this, we have limitations as human beings. Therefore, you know, to avoid this rotation, let's recognize that we may have limitations and reach an arbitrary settlement to end the disputation And that applies across the board certainly solver will never make hell out what's hard on the server there is no song that will make something like you know, if someone claims that you know he's married to a woman for instance.
And and then she denies they can cannot reach a settlement.
Like, because that was harder, um, Herrera Harmon.
He can teach us on this.
Call the other stuff
on the channel and stuff, but what I would have five minutes for people to leave and then we'll have our q&a session.