Fiqh al-Muamalat al-Muasira
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- Fiqh al-Muamalat al-Muasira
Fiqh al-Muamalat al-Muasira (Jurisprudence of Contemporary Financial Transactions) is a legal work by the contemporary scholar Muhammad Hasan Abd al-Ghaffar that examines modern economic dealings, sales contracts, and usury-related issues through comparative Islamic jurisprudence.
Scope and Principles of Usury
The book begins with an exposition of the foundational rules governing usury (riba) and the six usurious commodities (al-asnaf al-ribawiyya) specified in prophetic traditions: gold, silver, wheat, barley, dates, and salt. The author categorizes these commodities into two underlying legal effective causes (illah): currency/monetary value (thamaniyya) in gold and silver, and edibility (ta'm) in the remaining four foodstuffs. He details the three scenarios of exchange:
- If the items share both the same legal cause and genus (such as gold for gold), both mutual receipt on the spot (taqabud) and exact equality (tasawi) are strictly required.
- If they share the same legal cause but differ in genus (such as gold for silver, or dates for salt), mutual receipt on the spot is required, while parity is not.
- If they differ in both legal cause and genus (such as gold for dates), neither mutual receipt nor parity is required according to the majority of jurists.
The author also evaluates the legal status of usurious dealings between Muslims and non-Muslims in non-Muslim lands (Dar al-Kufr). Examining the Hanafi position that permits such transactions based on a report attributed to Makhul, he refutes it as weak and contradicted by general textual prohibitions, concluding with the majority position that usury is unconditionally unlawful in all places.
Conditional Sales and the Principle of Means
The text addresses contractual forms whose external validity may conceal prohibited ends, invoking the maxim that means take on the legal rulings of their intended objectives (al-wasa'il laha ahkam al-maqasid).
In the question of selling grapes to someone who will press them into wine, the author contrasts three juristic positions: unconditional permissibility attributed to Sufyan al-Thawri; unconditional prohibition held by the Hanbalis and the majority; and distinction held by the Shafi'is, who deem it prohibited if the seller knows the buyer's intention and disliked (makruh) if in doubt. The author prefers the Hanbali prohibition, extending it to similar transactions such as selling weapons during civil strife or hiring singers.
Additionally, the work explores the sale of mothers' milk, highlighting its modern prevalence in Western contexts and affirming its permissibility under regulated guidelines for the nourishment of infants, alongside the associated rulings on establishing foster relationships (mahramiyya).
Debt Discounts and Tawarruq
The work analyzes two prominent modern credit and financing mechanisms:
- Discounting Debt for Early Payment (Da' wa-Ta'ajjal): The arrangement where a creditor discounts a portion of a deferred debt in return for expedited settlement, or where an installment seller accepts a reduced lump sum before maturity. Although the four classical Sunni schools of jurisprudence, alongside companions like Abdullah ibn Umar and Zayd ibn Thabit, regarded this practice as unlawful due to its resemblance to usury, the author analyzes the narrations and endorses the position of Abdullah ibn Abbas, Ibn Taymiyya, and Ibn al-Qayyim permitting it. He argues that it constitutes a valid form of reconciliation (sulh) and mutual facilitation (irfaq), distinguishing it from usury because usury involves an increase in money paired with a delay in time, whereas this arrangement involves a decrease in money paired with acceleration of payment.
- Monetization (Tawarruq): The transaction wherein an individual purchases a commodity on credit not to consume or trade it, but solely to resell it immediately to a third party for cash liquidity. While distinguishing it from the prohibited repurchase agreement (bay' al-inah), the author notes that the majority of jurists permitted tawarruq based on the general permissibility of commerce. However, citing narrations from Umar ibn Abd al-Aziz and the preferred stance of Ibn Taymiyya and Ibn al-Qayyim, the author concludes that tawarruq is prohibited as an impermissible legal stratagem (hila) that amounts to exchanging money for money with disparity and deferment.
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