Fiqh al-Muamalat
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- Fiqh al-Muamalat
Fiqh al-Muamalat (Arabic: فقه المعاملات, also titled Mawsu‘at Fiqh al-Mu‘amalat) is an encyclopedic reference work on Islamic commercial and financial jurisprudence prepared by a collective of scholars (Majmu‘a min al-Mu’allifin) .
Structure and Scope
The encyclopedia is organized into four main divisions :
- Researches (al-abhath)
- Practical applications (al-tatbiqat)
- Legal rulings and verdicts (al-fatawa)
- Terminology and glossaries (al-mustalahat)
Legal Theory and Rulings of Contracts
The work begins its treatment of commercial law with the contract of sale (al-bay‘), identifying it as the foundational basis of financial exchanges . Linguistically denoting an exchange of property for property, its technical legal definition is framed as an exchange of wealth for wealth aiming at acquisition, or a compensatory financial contract (mu‘awadah) conferring permanent ownership over a corporeal item and its usufruct for a non-devotional purpose, thereby distinguishing it from gifts (hibah) and leases (ijarah) .
The primary legal status of sale is general permissibility (al-ibahah), established by the Quran, the Sunnah, scholarly consensus (ijma‘), and rational necessity (al-ma‘qul) . Depending on circumstance, it may shift to prohibition (tahrim), dislike (karahah), obligation (wujub, such as purchasing food out of absolute necessity to preserve life), or recommendation (nadb) .
Classifications of Sales
The text categorizes sales according to several analytical frameworks:
- By the subject matter of exchange (al-mabi‘): Absolute sale (al-bay‘ al-mutlaq, exchanging a specific physical object for debt/money), forward sale (al-salam or al-salaf, delivering advanced payment for deferred goods), currency exchange (al-sarf, exchanging precious metals or monetary units), and barter (al-muqayadah, exchanging non-monetary commodities) .
- By price determination: Bargaining sales (al-musawamah, without disclosing the acquisition price), auctions (al-muzayadah, alongside its modern counterpart, procurement tenders or al-munaqasah), and trust sales (buyu‘ al-amanah, where the original cost is revealed), which include mark-up (murabahah), at-cost (tawliyah), discount (wadi‘ah), and partial share (ishrak) sales .
- By time of delivery: Immediate payment (munjaz al-thaman), deferred payment (mu’ajjal al-thaman), deferred delivery of the item (mu’ajjal al-mathman, such as salam and manufacturing contracts or istisna‘), and debt-for-debt sales (mu’ajjal al-‘iwaadayn), which are generally prohibited .
- By legal validity: Valid (sahih), corrupt (fasid), binding (lazim), non-binding or conditional (ghayr lazim), suspended (mawquf, dependent on third-party ratification), and void (batil) .
Contractual Elements and Conditions
The work details the contractual formula (sighah), comprising offer (ijab) and acceptance (qabul) expressing mutual consent . It explores cross-school differences regarding whether an offer must precede acceptance, the validity of past versus present verbal tenses, and the requirement of unity of the contracting session (ittihad al-majlis) without distracting interruption . It also stipulates the legal capacity of the parties (ahliyyat al-ada'), requiring sanity, discernment (tamyiz), and sound judgment (rushd), as well as legitimate authority (wilayah), either in personal capacity or through voluntary agency (wakalah) or judicial guardianship (wilayah ijbariyyah) over legally restricted individuals .
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