Hatem al-Haj – QWD015 Coherence of Sharia – Subsidiary Maxims Under Maxim 2
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Alhamdulillah, salallahu alayhi wa sallam, ala rasool Allah,
wa ala alihi wa sahbihi, wa man wala,
thumma amma ba, to proceed.
So today we will continue our discussion about
the subsidiary rulings, subsidiary maxims, under al-umur
bi maqasadiha, under the first major comprehensive legal
maxim, al-umur bi maqasadiha, matters are judged
by the intentions, matters are judged by the
intentions.
And last time we finished the first subsidiary
maxim, do you remember which one?
La sawaba illa biniyya, or la sawaba wa
la aqaba illa biniyya, there is no reward
or punishment except with intention.
And today we will, inshallah, finish the second
and the third.
We started the second, and you remember the
second, al-ibra fi al-waqud bil-maqasad
wal-ma'ani, la bil-alfadh wal-maba
'ani, consideration in contracts is given to objectives
and meanings, not alfadh, wordings, and forms, not
words and forms.
So we started this discussion, and we talked
about how we Hanbalis are somewhere much closer
to the Malikis and Hanafis in this regard,
and a bit farther away from the Shafi
'is, although we belong somewhere between the Malikis
and Hanafis in one side, who employ this
qaeda, or this maxim, and the Shafi'is
who do not employ this maxim.
And we talked about the reason why the
Shafi'is did not employ it.
It's not basically, it's very reasonable.
They were looking at things from the viewpoint
of the qadi, the judge, and the judge
does not have a heart reader to know
al-maqasad, the objectives, and the intents.
But then we started to say that this
does not mean that we have a heart
reader.
It means that sometimes the maqasad can be
discovered.
Sometimes the maqasad can be discovered.
Sometimes you are not a judge, you are
a mufti.
Sometimes you are a judge, but the maqsad
can be discovered.
Sometimes the words can be interpreted in light
of the maqsad that can be discovered by
certainty or propensity, by certainty or higher likelihood.
And then we talked about the idea of
words and forms, and when do words and
forms matter.
And we talked about different types of contracts.
Of course, in al-ibadat, words and forms
matter, because al-ibadat are tawqifiyyah.
Tawqifiyyah means what?
Divinely designated, divinely prescribed.
But we talked about how al-mu'amalat,
the financial transactions, should be, to a great
extent, independent of words and forms.
They should be about meanings and objectives, not
words and forms.
And then we said that in the madhhab,
although it's not a matter of agreement, Imam
Taqi al-Din also feels that marriage and
divorce are like this.
But in the madhhab, there is a difference
between divorce, any word that means it will
mean it, and marriage.
Marriage in the madhhab is treated like ibadat.
And you could say that it makes some
sense, because it's the mithaq al-ghaleed, it's
a sacred contract.
So it may make some sense to treat
it like al-ibadat.
So if you, like in the madhhab, if
you speak Arabic, you have to say it
in Arabic.
You have to say the words that they
consider to be words for nikah or marriage.
But anyway, so this was the discussion about
when words and forms matter.
And we finished this discussion that was presented
by Imam Ibn Rajab al-Hanbali in his
Qawa'id book.
So today we will talk about whether we
best regard, dismiss words in favor of objectives
and meanings.
Do we dismiss words and forms in favor
of objectives and meanings?
Of course not.
Of course not.
We don't dismiss words and forms in favor
of objectives and meanings.
And we will take an excerpt from Sharh
al-Muntaha by Imam al-Buhuti about giving
gifts.
Do you know there is something called hadiyat
al-thawab or hibat al-thawab?
When someone of, you know, of lower status
gives someone of higher status a gift, many
times they are expecting a return.
They are expecting compensation, but they're giving them
the gift as a gift because they are
expecting a higher compensation than the value of
the gift itself.
So like if someone, like a poor person,
gives like a billionaire a gift, they're expecting
the billionaire to give them back a gift,
you know, of higher value, you know, that
suits their financial status.
So this is called hibat al-thawab.
This is basically a gift with expectations of
a compensation, reward for compensation.
So now if someone gives someone a gift,
let us see what they say in Sharh
al-Muntaha.
Someone gives someone a gift.
They say if a specific, you know, like
first they say that unless the recipient knew
that the giver gave it out of embarrassment,
in which case it's okay.
So they say that if the recipient knew
that the giver of the gift gave it
out of embarrassment, they must return it in
the madhhab.
In the madhhab, they must return the gift.
And this was mentioned by Ibn al-Jawzi
and Ibn al-Muflih al-Adab said it
is a good view because intentions are considered
in contracts according to us.
According to us, he means Hanbalis.
He says, and here is a confirmation that
Hanbalis go by intents and objectives, not words
and forms, particularly in contracts.
He says it's a good view.
So if someone gives you a gift and
you are confident that they gave you this
gift out of embarrassment or whatever, then you
must return the gift.
If a specific compensation is stipulated in the
gift, it becomes a valid sale according to
the explicit statement of Imam Ahmad.
If a specific compensation is given in the
gift.
So I tell you this is a gift
for you.
Sure, I know this is a gift for
you for $500.
A gift for $500.
You take it.
Now, what is this in the madhhab?
This is a valid sale contract.
A valid sale contract.
So what about my, you know, what about
say like the word gift?
I said I give it to you as
a gift.
They dismiss that.
Dismiss that.
Here, they dismiss the word incompletely.
Why?
Because the intent is clear.
I said, here, take this phone as a
gift for $500.
For $500 means it's a sale.
So they disregarded us.
That, you know, you come and ask me
like, you know, I have like an extra
house.
And you ask me to stay in the
house for a month.
And I tell you, okay, that is fine.
This will be a gift to you just
for $300.
That is what?
Ijara.
That is a lease.
So here, when the intent is clear, we
disregarded, we dismissed the wording.
Because what matters more is the intent.
Okay.
Now, so the next one, however, if the
compensation in the gift is unspecified or unknown,
the transaction is invalid.
So if I, if we did not specify
the compensation, the first time we said for
$500, what about not specifying the compensation?
Leaving it unknown.
So a summon here or the compensation is
Majhood.
Does this invalidate the contract?
It does invalidate the contract.
So this would be an invalid contract.
Okay.
So that's the second scenario.
Third scenario.
If a gift is given without any stipulations.
Okay.
If a gift is given without any stipulation.
So I say to you, here is a
phone.
Take this iPhone as a gift.
I don't stipulate and I don't mention a
compensation.
I don't stipulate anything.
What would be the ruling in this case?
It will count as a gift.
Will count as a gift.
Whether I was of a higher, equal or
lower status to the recipient.
Whether I am of a higher, that's like
financially.
So higher, equal, lower status according to the
method.
Because the fact that they are stressing this
means that there is controversy here.
But they are telling you, according to the
method, it doesn't matter.
If I am of a higher, lower or
equal status.
If I don't stipulate in the gift, the
compensation, it is a gift.
It will be a gift.
So then they respond to a statement by
Omar, where he said.
If someone gives a gift with an expectation
of a return.
And he's not pleased with the return.
He is more deserving of his gift.
Like he can take it back.
He has the right to take it back.
So Omar said that.
So now in the Madhhab, we're deciding to
take a position counter to Omar's statement.
So we will have to validate our position.
We will have to say why we are
disagreeing with Omar.
That's Omar al-Farooq.
So then he says, even though Omar said
that, his son and Ibn Abbas disagreed with
him.
His son and Ibn Abbas disagreed with him.
What is he trying to say here?
He's trying to say, you know Omar, but
this is not a matter of consensus among
the Sahaba.
And if it is not a matter of
consensus among the Sahaba, despite it being Omar's
position, we're not bound by it.
Even if it is Abu Bakr's position.
We're not bound by it if it is
a matter of disagreement among the Sahaba.
And you know, that's one of the beauties
of this deen.
One person only received the revelation from God.
One person only was corrected by the divine
when he, you know, when his ijtihad did
not basically be approved by the divine.
But otherwise, anybody else, يُأْخَذْ مِن قَوْلِهِ وَيُرَدْ
So then, this is another scenario here.
If nothing was stipulated, it remains a voluntary
gift.
If the giver and recipient dispute whether the
compensation was stipulated.
Now, there is a dispute.
The giver and the recipient are now disagreeing.
The giver says I stipulated the compensation.
The recipient says no compensation was stipulated.
What do we do in this case?
Who, you know, who should we believe?
The denier.
The denier of stipulation.
Because that is the default.
The default is that there was no stipulation.
Because it's, you know, when you have to
choose between adam and wujud.
Adam is nothingness or nonexistence and existence.
Existence is an affirmation that will require proof.
Nonexistence is the default.
Because the default is that there was no
stipulation.
Nothing happened.
Nothing happened is always the default.
Okay, so now we have how many scenarios?
We have, what is this?
Now we have how many scenarios?
We have three scenarios.
So, when it comes to stipulation.
Of stipulation of compensation.
There is stipulation.
There is no stipulation.
There is an unknown stipulation.
And then we come to another scenario.
Which is disputed stipulation.
So, there is stipulation.
It becomes a valid sale.
Even though the wording is a gift.
There is no stipulation.
It's a gift.
Gift regardless.
Gift regardless of your position or your finances.
It's a gift.
There is unknown stipulation.
It's an invalid transaction.
Invalid transaction.
We're disputing this.
You say there was.
You, I say there was not.
I win.
Because negation takes the precedence over affirmation.
Negation does not require proofs.
Affirmation requires proofs.
Okay.
That's simply.
So, you will notice here.
That it's not.
It's not like the disregard or dismiss words
and forms.
They went to buy, you know.
So, here, like, here, they dismissed the words.
Because the intent was clear.
Right?
The intent was clear.
They stipulated the compensation.
Here, when there was a dispute.
Or here, when there was no clarity of
intent.
How do we know the intent?
If nothing was said to basically indicate the
intent.
So, here, there was no clarity here.
There was disputation.
Then, in these cases, we don't actually have
a heart reader.
So, if you didn't say anything, how do
we know that you are.
That you expected the return for the gift.
If you didn't say anything.
I can't tell that you expected the return.
Now, you will say, you know, this poor
man.
This lady who's selling, you know, herbs in
the street.
Gave this billionaire something as a gift.
Don't you, like, where is your mind?
Do you really think that this poor lady
selling stuff in the street.
Gave the billionaire a gift without an expectation
of a return.
In the masjid.
We will say she didn't say.
She just gave him this, like, you know,
bunch of stuff.
But she didn't say anything.
So, we will, sorry, you know, you should
have said something.
But someone may say, no, I disagree.
You know, she should, you know, be given
something.
And which they can use to say she
should be given something.
It's another subsidiary maxim.
That we will discuss next time.
It's called.
Which means the interpretation of words is affected
by circumstances or conditions or something.
The indication of the condition.
And the indication of the statement.
So, has an effect.
So, the circumstances, the conditions here speak for
themselves.
This poor lady gave this billionaire, you know,
bunch of herbs.
Because most likely she was expecting a return,
compensation, a reward for this.
But in the madhab, regardless of your status,
if you don't say anything.
And you just give me a gift.
And you call it a gift.
Yes, it's a gift.
Okay.
Then.
Then let's go over a very important statement.
Who, you know, particularly with contracts.
He like, you know, he was just like
a genius beyond belief.
Particularly with contracts.
You know, the idea of legal theories.
This idea is a new idea.
You basically, like, this was not one of
the things that they discussed.
It takes a particular concept like ownership, for
instance.
And dissects the concept.
It talks about the philosophy behind the concept.
And everything, you know, when it comes to
conditions, and pillars, and flaws, and so on.
Everything that pertains to this concept, to the
concept of ownership.
And you have a legal theory, a complete
legal theory.
Ownership, for instance.
So, the idea of al-madhariyat al-fiqh
is a new idea.
They were able to bring together from the
fatawa.
And the writings of imam al-taimiyya.
A complete nazariyya, or legal theory for al
-aqd, or the contract.
Contracts in general.
And one of the, supposedly now, sort of
the greatest adversaries of imam al-taimiyya.
Which is our former mufti in Egypt, Dr.
Ali Jum'ah.
Who oversaw the compilation of mawsu'at fatawa
al-imam al-taimiyya.
Or the encyclopedia of the fatawa of imam
al-taimiyya in financial transactions.
It came out in four volumes.
Now he talks about, he tries to defend
this particular principle, or maxim.
Because he was all about this maxim.
You know, that it is about intense objectives
and intents.
It is not about forms and wordings.
So he's trying to defend this maxim.
He will try to do this now.
He says, ask for contracts.
And then he will explain the hanbali madhab
and the other madhabs as well.
So ask for contracts in financial and marital
transactions and others.
We present some comprehensive principles of great benefit.
The jurists have identified three main opinions regarding
them.
Contracts in general.
The jurists, when it comes to wordings versus
intents and objectives.
The jurists have identified three main positions.
And these are the three main positions when
it comes to whether we should go by
words and forms or meanings and intents or
objectives and meanings.
So the first one, words and forms.
The second one will be sort of conditional
objectives and meanings.
The third one is objectives.
And it does not mean it's unconditional.
But it means maybe I should not say
conditional.
Maybe I should say restricted or limited.
Limited.
What does that mean?
I'll tell you now.
So first one, that would be you expect
it.
Shafi'is.
Shafi'is will say it's about words and
forms.
This one would be Hanafis.
And certainly there are nuances.
This is just like basically the Kishtaltish perspective.
But there are nuances.
And then you will have the Malikis here.
So what does Imam Netanyahu say about the
Hanbaris?
He puts the Hanbaris, the dominant, with the
Malikis.
And he says that the Hanbaris will have
also another view that agrees with the Shafi
'is.
And within the Madhhab, there is a view
that agrees with the Hanafis.
But he will end up putting the Hanbaris
with the Malikis, supporting objectives and meanings over
words and forms.
And his proof on this is that al
-mu'atah, which is basically just a nonverbal
exchange of products or sale items, is accepted
by Imam Ahmed without any words.
So if I give you this and you
give me the price of it that was
written, and we don't say one word, that
exchange is a valid sale, according to Imam
Ahmed.
It's called al-mu'atah.
And it is not restricted to particular transactions.
So here he says the Shafi'is supported
this.
Words and forms.
And the Shafi'is, he will have to
basically...
Okay, so why do the Shafi'is support
words and forms?
They say that Allah said, إِلَّا عَنْ تَكُونَ
تِجَارَةً عَنْ تَرَاضٍ مِنْكُمْ Allah said,
فَإِنْ تَبْنَ لَكُمْ عَنْ شَيْءٍ مِنْهُ نَفْسًا فَكُلُّهُ
هَنِيًا مَرِيءًا إِلَّا
عَنْ تَكُونَ تِجَارَةً عَنْ تَرَاضٍ مِنْكُمْ means what?
Except if it is a sale or a
trade with mutual consent among you.
Mutual consent.
فَإِنْ تَبْنَ لَكُمْ عَنْ شَيْءٍ مِنْهُ نَفْسًا If
the wives willingly, happily give up some of
the sadaq to the husband or give as
a gift some of her sadaq to the
husband, then the husband may, in this case,
take it.
But here, تَبْنَ لَكُمْ means that she's doing
it happily and willingly, not coerced into doing
it.
So, why did Imam Taymiyyah mention these two?
Because this is an example of عَقْدُ مُعَوَضَات
which is what?
For-profit transaction.
For-profit transaction, مُعَوَضَة It's an exchange for
profit.
For-profit exchange.
This is called عَقْدُ تَبَرُّعَات What does that
mean?
That means non-for-profit transaction.
It's a voluntary gift.
It's an act of giving.
تَبَرُّعَ You know, whether this is sadaqah or
hadiyah or whatever, but it is an act
of giving, not an act of exchange.
Okay.
So, the Shafi'is seem to be using
evidence that contradicts their position.
No, the Shafi'is will then, and this
is the beauty of faqr also and the
beauty of insaf.
So, Imam Taymiyyah mentions the position of the
Shafi'is and mentions their strongest argument.
He mentions their strongest argument.
Although, this is a position that he set
out to disprove.
But again, out of fairness to them, he
mentions their strongest argument.
Their strongest argument is, they said, and this
idea would apply to everything, sales, emancipation, endowments,
leases, anything.
It would apply to all such agreements.
So, the position of the Shafi'i, they
say that the meanings within a person's heart
are not reliably established except through words that
express what's in the heart.
And acts such like a mu'atah would
allow for different interpretations.
The argument of the Shafi'is is that
the meanings of one's heart are not clear
unless they are expressed in words.
So, I don't care what you mean.
I'm waiting for you to express this in
words to know what you mean.
And the act of mu'atah where I
give you the iPhone and you give me
the price that's written there allows for different
interpretations.
You know, sometimes you may say, like if
I'm at an iPhone store and we do
this, it doesn't allow for interpretations.
But, you know, there could be room for
interpretations.
There could be some room for different interpretations
here.
In mu'atah or nonverbal exchange of properties.
Nonverbal exchange of properties.
Okay, so this is the Shafi'i position.
And we said what their argument is.
Now, what about this second position?
So, we will consider objectives and meanings, maqasad
and ma'ani, but we will not consider
them in all contracts.
We will consider them in certain contracts, like
in muhaqqarat, the small sales.
Sales of insignificant items or muhaqqarat.
We will consider them in these contracts.
We will consider them in endowments in particular,
because that is not unusual.
When you build a masjid and you allow
people to come in and pray in the
masjid, you know, that act in and of
itself indicates that you have made a waqf.
Or when you allow people to bury their,
you know, their deceased family members into your
lot, you've made this a maqbara or a
cemetery by the very fact that you allowed
this barrier to happen in your lot.
When you basically allow your water facility, you
know, build a water facility and allow public
use of this water facility, you have effectively
made this an endowment, a waqf.
So they say these are the scenarios where
we don't care about a verbal form or
a format for the contract.
But big sales, you know, not sales of
small items, big sales will require the format,
will require a particular wording or particular format.
So this is the Hanafis will lean towards
this and a position within the Hanbali Madhhab
would lean towards this.
What is their proof?
Their proof is rational, you know, that there
are certain things that require, that there are
certain things that have been happening since the
time of the Prophet ﷺ and no one,
you know, no one disapproved of them, you
know, the sayyid of al-Muhaqqarat, things like
that.
And sometimes also leases, like when you get
on a boat, for instance, and you get
to the other side of the river and
it's expected, it is known that the owner
charges like a dirham to get you across
the river.
You know, this contract took place even though
there was no verbal communication between you and
the owner.
When you give your garment to the washer
and come back and take it from them
and they are expecting a dirham to wash
your garment or other things, you know, similar
things, similar things.
They say all of this has been happening
since the time of the Prophet ﷺ.
No one disapproved of it.
However, big transactions would require a particular format.
Okay, then this is the second.
So what about the third that Imam Taqeeq
will support?
The third opinion asserts that contracts are valid
through any expression, be it verbal or action
-based, that conveys the intended meaning of the
agreement.
And then this is the position that he
will support.
It would be expected that he will spend
more time here defending that particular position.
And then he will talk about, you know,
the fact that, you know, it's not only
within among different languages, but within the same
language people differ in terms of the expressions
they use.
People differ in terms of the expressions they
use.
And then he will take these two proofs
from the Shafi'is and flip them.
So these two proofs.
He says that these indicate that all that
matters would be mutual consent because Allah says,
إِلَّا أَنْ تَكُونَتْ إِذْ رَارَةً عَنْ تَرَادٍ مِنْكُمْ
Mutual consent.
Except if it is a trade, you know,
with mutual consent.
Allah did not say any particular form or
anything.
Then, فَإِنَّ لَكُمْ عَنْ شَيْءٍ مِنْهُ نَفْسًا Then,
if they willingly, happily, basically grant you some
of it or remit some of it, then
you may take it.
So Allah did not say anything about a
particular form.
So he will mention three different proofs using
these ayat and other ayat from the Qur
'an.
The first one that he will mention is
that the Qur'an only talks about mutual
consent.
And we know by necessity that people express
mutual consent in
different ways.
People express mutual consent in different cultures, different
places.
They express mutual consent in different ways.
Sometimes verbally, sometimes non-verbally.
But we know by necessity that different people
express mutual consent in different ways.
So that's the first proof.
What's the second proof?
Allah said تَرَادٍ Allah said صِبْنَة So these
are terms that are associated with legal rulings.
So now we have a قَعْدَ that says
مَعْلَمْ يَحُدَّهُ الشَّرْعَ يُحَدُّ بِالْعُرْفِ Or مَعْلَمْ يَحُدَّهُ
الشَّرْعَ أو تَحُدَّهُ اللُّغَةَ يُحَدُّ بِالْعُرْفِ That which
is not defined by the shara' such as
salah is defined by the shara' or defined
by the language must be defined by people's
customs.
عُرْفِ must be defined by عُرْفِ people's customs.
Since these words were mentioned in the Qur
'an and sunnah and were not defined by
the Qur'an or sunnah, they were not
defined by a shara' the law giver for
us, then we will have to figure out
if they have a fixed meaning in the
law or not.
And if they don't, then we will have
to refer to customs.
Then whatever the customs of the people indicate
consent and acceptance, then that is what matters.
So the seerah, the form of ijab and
qabool, offer and acceptance.
This is the seerah that we usually talk
about when we talk about seerah or a
particular form for contracts.
ijab and qabool, offer and acceptance.
Even in marriage, offer and acceptance.
I give you myself in marriage or whatever.
I give you my daughter in marriage, you
know, عَلَى كَتَابِ اللَّهِ وَسَنَةٌ رَضِيُّهَا etc.
I accept.
So this is called ijab and qabool or
offer and acceptance is one of the ways
that indicate acceptance or indicate mutual consent.
But it is not the only way that
indicates mutual consent.
He says we see this all the time.
People's transactions happen all the time in different
ways.
They basically act like this.
All of the examples that we mentioned here,
he would mention.
When you ride a boat, for instance, and
get to the other side of the river,
no one will accept your denial of payment
just because there was no verbal agreement and
things of that nature.
And then he will say that the third,
so the first one is what?
The first proof that he mentioned was that
we know by certainty that people's customs vary.
And I'm not sure because this second, this
was not defined by the Qur'an and
Sunnah, so we must refer to the Urf.
The third one is, he says that there
are two categories of actions.
There are ibadat, and we know that these
are tawqifiyyah, and there are mu'amalat, there
are ibadat, acts of worship, and we know
that these need to be divinely prescribed.
So al-asli fiha al-hadhr, al-asli
fiha al-tawqif.
So the default when it comes to the
acts of worship is that you need to
wait.
You can't basically fabricate an act of worship
and say that this is pleasing to Allah.
Who told you it's pleasing to Allah?
The opposite is true for mu'amalat, for
transactions.
The default is al-asli al-ibaha.
The default is permissibility when it comes to
mu'amalat because the deen came to regulate
them, not basically to tell you, that's one
of the functions of the deen, to regulate,
not to tell you how to farm, not
to tell you how to build a bridge,
not to tell you how to, you know,
carry out various transactions.
This is not what the deen came for.
The deen came to provide guardrails, to prevent
you from oppression, to prevent you from inequity,
injustice, and all of that.
But the deen did not come to tell
you how to perform or conduct these transactions.
Finally, a note that, you know, when it
comes to al-ibadat, when it comes to
al-ibadat in particular, why are al-ibadat
restricted?
Because no one knows what Allah loves except
Allah and whomever Allah communicated to him, how
he wants to be worshipped, how he wants
to be worshipped.
And here is an example on our need
to adhere, you know.
So, when it comes to adhkar, when it
comes to certain things are obligatory, takbir, it's
a dhikr, like, you know, the tasbih and
things in the salah, and things that Allah
subhanahu wa ta'ala at-tashahud, and things,
you know, qiraat al-fatiha.
There are certain things that you are obliged
to basically use the prescribed wording, obliged to
use the prescribed wording.
But oftentimes, you're recommended to use the prescribed
wording.
When it comes to al-adhkar, Imam al
-Masiri said that this was his choice, that
you're required to use the prescribed wording.
And Imam al-Hajar seems to lean to
that, because he explained, you know, I'm not
quite certain, but he explained, he sort of
defended the position of Imam al-Masiri, and
used this particular hadith.
You know, when the Prophet ﷺ was teaching
a particular dhikr, you know, when you go
to sleep and stuff, a particular dhikr to
one of the sahaba, and at the end
of the dhikr, أَمَنْتُ بِكِتَابِكَ الَّذِي أَنزَلْتُ وَبِنَبِيِّكَ
الَّذِي أَرْسَلْتُ I believe in the book you
have revealed, and in the Prophet you have
sent.
And the sahabi said, وَبِرَسُولِكَ الَّذِي أَرْسَلْتُ Instead
of binabiyyik, he said, وَبِرَسُولِكَ And in the
messenger you have sent.
The Prophet ﷺ corrected him and said, وَبِنَبِيِّكَ
الَّذِي أَرْسَلْتُ So with your, and I believe
in your Prophet that you sent down or
that you have commissioned or sent.
Now, why is the Prophet ﷺ correcting him?
Imam Ibn Hajar says that the azkar have
certain qualities and secrets that
should not be subjected to analogy.
So you do not want to be improvising
when it comes to the azkar because they
have secrets.
They have certain qualities and secrets that are
not subjected to analogy.
I was, that may have been 40 years
ago.
There was like a particular director of movies,
a French director of movies who converted to
Islam.
And I met him somewhere like in early
90s.
And so we were talking about the dhikr
al-lafd al-mufrad, Allah.
Dhikr al-lafd al-mufrad, Allah.
He was the first one to basically explain
it to me in this way.
But he said that he avoids it.
So certainly this is a matter of disagreement,
a big disagreement.
So some people consider this to be permissible.
Some people consider this to not be permissible.
Every group has their own set of proofs
on the permissibility or impermissibility of just making
the dhikr by the single word Allah, Allah,
Allah, Allah like this.
Versus la ilaha illallah, allahu akbar, subhanallah, alhamdulillah.
Everybody agrees on la ilaha illallah, subhanallah, alhamdulillah,
allahu akbar.
But Allah alone, not in a complete sentence.
Is it permissible or impermissible?
I'm not going to get into the details
of this because it would take the rest
of the day.
But the way he explained it, I certainly
stick to the ma'thoor, the things that are
prescribed by the Prophet ﷺ.
But the way he explained it, he said
that this, if you repeat this too much,
it may take you to panentheism, pantheism, monism,
alool, ittihad, and things of that nature.
Because it is affirmation without negation versus the
complete one, la ilaha illallah, la ilaha illallah.
It combines the affirmation and negation.
So it basically brings into your consciousness that
I am negating that anyone else is the
deity deserving of worship and affirming that only
Allah.
So when you say this, you're basically recognizing
the presence of different beings, but only one
of the beings is the deity deserving of
worship, that is Allah, versus repeating Allah, Allah,
Allah, could take you into monism.
Monism in the sense of only God exists,
nothing else exists.
So what are we?
You have a big discussion about this, but
eventually it may take one into pantheism or
panentheism.
Finally, let's just finish this so that next
time we start talking about the very important
qa'ida of al-wasa'illah ahkam al
-maqasid, and then discuss al-wasa'illah ahkam
al-maqasid, which means the means take on
the rulings of the objectives.
And then we want to discuss how this
is different from the ends justify the means,
the ends justify the means.
But let's just finish this now.
The next one is al-asbaab wal-dawa
'i lil-uqood wal-tabarra'at mu'tabara.
I will put this as a subsidiary under
the last qa'ida, which is consideration is
given in contracts to objectives and meanings, not
words and forms.
This will be a subsidiary under this one,
which is al-asbaab wal-dawa'i lil
-uqood wal-tabarra'at mu'tabara.
The causes and motives for contracts and donations
are considered.
And this is the 51st qa'ida sa'diyya.
And in the qa'ida rajabiyya, it comes
as the 150th qa'ida.
He says that Imam Ibn Rajab said causes
are considered in ownership contracts just as they
are in oaths.
So the Prophet ﷺ is the first one
to, of course, he was the first one
to lose all of these qa'ida, but
here he used this qa'ida explicitly when
he said, hadaya al-'ammal ghulool.
And this was confirmed by the hadith of
Ibn al-Lutbiyya, his zakat collector who came
and said, people gave me this as a
gift.
And then he said, like had he waited
in his parents' home, he would have not
received this gift.
But hadaya al-'ammal ghulool means what?
The gifts that are given to public officials
are ghulool or embezzlement, forms of embezzlement.
Gifts given to public officials are forms of
embezzlement, ghulool.
Okay, which means what?
That even though it is a gift, you
know, so like I'm just giving you a
gift.
I'm calling it a gift.
It looks like a gift, you know.
It is basically like roses, anything, just a
gift, a box of chocolate.
But since you are a public official and,
you know, I have something to want of
you or to seek of you, something I
pursue from your department or whatever, then that
is an act of embezzlement.
So al-'azm al-dawa'i mu'tabara, here the
causes are motives.
What is my motive in giving you this
gift?
To facilitate my, you know, transactions or, you
know, whatever it is that I'm pursuing.
So this principle highlights the invalidity of deceptive
tricks.
That is al-hayal, deceptive tricks, designed to
achieve impermissible objectives.
One example is when you borrow something from
someone and before you return, like you borrow
$5,000 from a friend of yours and
before the due date, you give them a
gift.
Before you are the borrower, they are the
lender.
Before the due date, you give them a
gift.
What is this?
Riba.
Why?
Because kullu qardin jarra naf'an fahuwa riba.
Every loan that brings about a cruise benefit
for the lender is riba.
Okay, so here, although it is a gift,
but now when will it actually be a
gift?
If you borrowed from your sister, well, hopefully
you're not borrowing from your sister, like you
borrowed from your brother, I guess.
If you borrowed from your brother money and,
you know, it is your custom to give
them a gift on their birthday, for instance.
I don't celebrate birthdays, but you guys may
be, and I don't think it's a problem.
But anyway, so if you borrow a gift,
if you borrow money from your brother and
on their birthday you give them a gift,
and that's before the due date.
You've been giving them a gift on their
birthday every year for the last 40 years.
Now, should we expect that this is like
a bribe?
No, it's customary.
It's basically your habit with your brother to
give him a gift every year.
So, it should be okay, it should be
okay.
Here, the causes are motives are considered.
Also, in cases of oaths in the madhhab,
intent behind the oath is unclear.
The intent behind the oath is unclear.
What do we go by?
السبب المهيج The cause that triggered it, that
provoked it.
What provoked you to make this oath?
What triggered you to make this oath?
السبب المهيج will be considered.
And Ibn Rajab mentions a few other examples.
One of them is, gifts given to the
commander of an army, they will be divided
between the army.
Gifts given to the commander of the army,
they will be treated as fay or ghanima,
the commander will not take it for himself.
The gift, a wife gives her husband from
her sadaq.
So, you know, they've been married for four
or five years.
He got into financial difficulty.
She gave him part of, and they were
going through a hard time also in their
marriage.
So, she gives him a gift from her
sadaq, or she, you know, clears him of
the mu'akhar, or the deferred part of
the dowry and stuff.
And he turns around and divorces her after
a couple of months.
When, you know, when he gets out of
his financial difficulty, I guess, and he wants
to change.
So, he turns around and divorces her.
Can she reclaim the gift?
Yes.
Why can she reclaim the gift?
It's a gift, you know, but it's obvious
that she gave him the gift to save
the marriage.
Now that he divorced her, then she gets
to get her gift back.
Okay.
And then he mentions, and among these is
the gift given to someone who has interceded,
you know, gift for Shafala.
So, after the intercession, not before the intercession,
you've interceded on my behalf with the governor.
And then I give you a gift.
This gift is impermissible, as it is akin
to taking a fee for intercession, which is
a public duty that should not be rewarded
or compensated.
Intercession is a public, when you intercede on
behalf of someone, you want to make sure
that this intercession is not to take, basically,
away someone else's right, or not to put
him ahead of someone else who's more deserving.
But intercession is a good thing.
Shafa'a al-Hasna is a good thing.
So, you recommend, you know, someone to, like,
for a job, for a marriage, for this,
for that.
That is called Shafa'a al-Hasna, intercession.
This is a good thing.
But then, this is not something that you
should expect a return, a reward, a compensation
for.
In fact, there is a hadith with an
acceptable chain of narration, where the Prophet ﷺ
says, مَنْ شَفَعَ شَفَاعَةً فَأُهْدِيَ لَهُ هَدِيَ فَقَبِلَهَا
فَقَدْ أَتَى بَابًا عَظِيمًا مِنْ أَبْوَابِ الرِّبَى So,
if you intercede for someone, and then your
presenter offers the gift, if you accept it,
you have committed riba.
You have committed, you know, an enormous act
of riba.
So, intercessions should be offered without expectation of
reward.
And that brings us to the end of
this discussion.
And next time, we will talk about الوسائل
لها أحكام المقاصد means take on the rulings
of the objectives, and how this is different
from the ends justify the means.
That's it.