Is it permissible to receive compensation due to some harm done to or injustice inflicted upon a person?
Submitted by on Fri, 07/07/2017 - 16:46
Dear Brother / Sister,
Severance payment, which is paid within the framework of work, labor and employee laws, and as the laws in force state, is valid; similarly, it is permissible for you to file a claimfor compensation when you are wronged and treated unfairly based on the rights the laws give you and to receive compensation when you win the case in accordance with laws unless there is a corruption or irregularity.
The decree of compensation given by the court based on laws and regulations is religiously acceptable if law is not mistaken by illegitimate ways like tricks, deception and bribery. The money received as a result of such a decree is halal.
In Arabic, the word tadminat (compensation) is the plural of the word “tadmin” derived from the verb “damana”. It lexically means to vouch for, guarantee, undertake compensation and protect. The word “tadmin” or “daman” is used in order to express the damages paid by the person who is obliged. As a term, daman is used in two sense: “compensation” and “guarantee”. Hanafis prefer the former while Shafiis, Malikis and Hanbalis prefer the latter.
In the Islamic law, compensation is defined as follows:
"To give something of the same kind of the thing that is lost or eliminated or to give its equivalent." (see Majalla, Item, 416). The definition of al-Ghazzali (d. 505/1111) is as follows: "To return something, or to give something of the same kind of the thing or its equivalent if it has been destroyed." (al-Ghazzali, al-Wajiz, Egypt, 1317/1899, l, 205) In short, compensation means to give to the person who is wronged something of the same kind of the thing that needs to be compensated or its equivalent.
According to the fiqh scholars except Hanafis, daman (compensation) and kafalah (guarantee) are synonymous words and they are defined as follows: Daman means a person being involved with the debt of somebody else (ad-Dusuki, Hashiya, Darul-Fikr n.d., III, 330) However, some of these fiqh scholars used the word daman in the sense of tadminat. The views like "Damanul-Ghasib (the obligation of compensating what has been grabbed)", "Damanul-Mushtari (the obligation of compensating by the buyer)" in some resources show this. (Ibn Rajab, al-Qawaid, Azhar 1392/1972, 6)
Evidence for Compensation
The harm done against another person is related to a person’s wealth, life or body. The necessity of compensating the harm inflicted on one of these is based on the evidence of the Quran, Sunnah, consensus and mind.
1- The Quran: Returning harm with harm or eliminating (removing) harm is determined as follows as a general principle in the Quran: "If then anyone transgresses the prohibition against you, transgress ye likewise against him." (al-Baqara, 2/194) "And if ye do catch them out, catch them out no worse than they catch you out." (an-Nahl, 16/126) "The recompense for an injury is an injury equal thereto (in degree)." (ash-Shuara, 42/40). According to what is understood from those verses, the harm given to others needs to be compensated in the same way, giving them the same thing or the equivalent, not less or more.
2- The Sunnah: There are many hadiths in Islamic law showing that it is legitimate to make a person compensate for the harm/loss. Some of them are as follows: "There should be neither harming nor reciprocating harm." (Ibn Majah, Ahkam, 17; Ahmad b. Hanbal, V, 327; Malik, Muwatta, Aqdiya, 31). "The borrowed is to be returned, and the guarantor is responsible" (Abu Dawud, Buyu', 90; Tirmidhi, Buyu', 39; Ibn Majah, Sadaqat, 5). Accordingly, a person who keeps something belonging to another person unjustly has to return it if it exists or give something of the same kind or its equivalent to its owner if it has been lost or destroyed.
The compensation for killing or the harm inflicted upon a person is stated as follows in a hadith: "For killing a person, the diyah is one hundred camels. A full diyah must be paid for the nose if it is cut off completely, for the tongue, for the lips, for the testicles, for the penis, and for the backbone; one-third of the diyah must be paid for a blow to the head that reaches the brain, and for a stab wound that penetrates deeply into the body; fifteen camels must be given for a blow that breaks the bone; ten camels must be given for every digit of the hands or feet; five camels must be given for a tooth." (an-Nasai, Qasama, 46; Malik, Muwatta', Aqdiya, 1).
It is stated in a hadith that the harms caused by animals have to be compensated: "People of the garden are responsible for guarding their garden during the day, and the owner of the animals is liable for what the animals destroy at night." (Abu Dawud, Buyu', 92; Muwatta, Aqdiya, 18; Ahmad b. Hanbal, V, 426).
3- Consensus: That the harm inflicted upon the wealth, life or body of a person unjustly has to be compensated is an issue that is agreed unanimously by Islamic scholars.
Reasons for Compensation
A deed or incident that necessitates paying compensation is called "reason for compensation". There are five main reasons for compensation: contract, destruction, grabbing, preventing usage and deception.
1- Contract: Majalla defines contract as follows: "It means parties accepting and undertaking something." (Majalla, Item 103). It is definite by verses and hadiths that contract is a reason for compensation. The following is stated in the Quran: "O ye who believe! Fulfil (all) obligations..." (al-Maida, 5/1) "Fulfil the covenant of Allah when ye have entered into it, and break not your oaths after ye have confirmed them…" (an-Nahl, 16/91) "…And fulfil (every) engagement, for (every) engagement will be enquired into (on the Day of Reckoning)." (al-Isra, 17/34) On the other hand, Muslims need to act in accordance with the conditions they lay. The following is stated in a hadith: "Muslims act in accordance with the conditions they lay among themselves except a condition that makes halal haram and that makes haram halal." (Bukhari, Ijara, 14; Abu Dawud, Ijara, 12; Tirmidhi, Ahkam, 17)
2- Destruction: It means destroying, eliminating, killing. As a fiqh term, it means to make something unusable and useless. (al-Qasani, Badayius-Sanayi, VII, 164) Wounding a person, killing a person and harming his organs are also included in the concept of destruction. According to the verse "If then anyone transgresses the prohibition against you, transgress ye likewise against him" (al-Baqara, 2/194), a person who destroys something belonging to another person has to give something of the same kind or its equivalent to its owner. (al-Jassas, Ahkamul-Qur'an, thq. Muhammad as-Sadıq Qamhawi, Beirut, 1405/1985, l, 326; al-Qurtubi, al-Jami' li Ahkamil-Qur'an, Egypt 1935/1950. II, 357)
The following hadith determines that destroying the possessions of others necessitates compensation: "There should be neither harming nor reciprocating harm." (Ibn Majah, Ahkam, 17; Ahmad b. Hanbal, V, 327)
When something is destroyed, there is no difference between destroying it doing it deliberately or by mistake by a person. However, regarding destroying a human being, there is a difference. If a person kills or wounds another person deliberately, retaliation (qisas) is applied; a person who kills another person by mistake has to pay diyah. (as-Sarakhsi, al-Mabsut, XI, 87; al-Qasani, Badayius-Sanayi: VII, 165; ash-Shirazi, al-Muhadhdhab, I, 368)
3- Grabbing: It means having something belonging to others without any legal reason. It is called grabbing or seizure. A person who has something like that has to return it to its owner; if it has been destroyed, he has to compensate for it. The evidence for this is the following hadith: "The hand that takes is responsible for what it has taken until it returns it." (Abu Dawud, Buyu', 88; Tirmidhi, Buyu', 39; Ibn Majah, Sadaqat, 5) According to Hanafis, the thing that is grabbed has to be movable property. According to Shafiis, Malikis and Hanbalis, it is possible to grab immovable property too. (as-Sarakhsi, al-Mabsut, XI, 73; Ibn Rajab, al-Qawaid, thq. Taha Abdurrauf Sa'd, Egypt, 1391/1971, 221)
Having somebody’s property is divided into two in terms of necessitating compensation or not: "Yad al-amanah" and "Yad ad-daman".
Yad al-amanah means having something belonging to another person with his permission or based on nass (verses-hadiths). A person who has something like that becomes responsible if it is destroyed due to his deliberateness, mistake or negligence. If it is destroyed spontaneously or due to an act of Allah, he is not held responsible. (Ibn Rajab, ibid, 60)
According to the Islamic law, the things that are regarded as amanah (entrusted things) are as follows:
1- Things entrusted to a person (wadiah)
2- Things given to a person so that he will use it (ariyah)
3- Things that are pawned.
4- Things belonging to a client kept by a proxy.
5- Things belonging to a company.
6- Movable and immovable property held by a tenant.
7- Things belonging to a child or restricted person held by a guardian or trustee.
8- Things belonging to an employer held by an employee.
9- Movable and immovable property belonging to the state held by officials.
10- Things belonging to the ordering party or customer held by manufacturers. (see as-Sarakhsi, ibid, XI, 114, 157, XV, 103; al-Qasani, Badayius-Sanayi’, VI, 208, 217, IV, 174, 210, V, 64; Ibnul-Humam, Fathul-Qadir, Beirut 1315/1897, VI, 468; Ibn Rushd, Bidayatul-Mujtahid, İstanbul 1985, II, 193, 214, 254, 260; az-Zaylai, Tabyinul-Haqaiq, Beirut, 1315/1897, III, 320, IV, 256; ash-Shirazi, al-Muhadhdhab, Egypt, n.d., 4, 316, 337, 359, 408)
Yad ad-daman means to have something belonging to another person with the intention of owning or using it. Something grabbed or stolen is like that. If something like that is destroyed, the person having it has to pay compensation even if no deliberateness, mistake or negligence exists. (az-Zuhayli, Nazariyyatud-Daman wa Ahkamul-Mas'uliyyatil-Madaniyya, Damascus 1402/1982, 175; ash-Shirazi, ibid, 1, 296).
Compensation needs to be paid for the following things though they are not kept as a result of grabbing or theft even if there is no deliberateness or mistake in the destruction: Goods that have been sold or their price (al-Qasani, ibid, V, 238), money for peace/compromise (al-Qasani, ibid, V, 238), jointly-owned things that have been shared (al-Qasani, VII, 24; Ibnul-Humam, ibid, VIII, 350).
4. Preventing usage: In the Islamic law, entering between something and its owner and preventing the owner from using his possessions necessitates compensation. For instance, if a person denies something that he has borrowed for a certain time or if a person who grabs something sends it to another town, it is regarded as preventing usage. According to Hanafis, in that case, the deed must target the thing for the compensation to occur. Hanafis use the phrase "destroying spiritually" for entering between something and its owner (as-Sarakhsi, ibid, XI, 74, 97; al-Qasani, ibid, VII, 165). The evidence for it is the following hadith: "There should be neither harming nor reciprocating harm." (Ibn Majah, Ahkam, 17; Ahmad b. Hanbal, III, 348)
5- Deception: the Arabic word “ghurur” derived from "gharara" means to deceive and to catch someone napping. As a term, it means to cause a person to do something that will harm him or make him lose something by giving him wrong information or deceiving him. (at-Tahanawi, Kashshafu Istilahatil-Funun, Istanbul 1984,11, 1091). That deception is a reason for compensation is deduced from the hadith "There should be neither harming nor reciprocating harm" (Ibn Majah, Ahkam, 17; Ahmad b. Hanbal, III, 348) and "the hadith of Musarrat" (Bukhari, Buyu, 64; Muslim, Buyu, 11).
Deception necessitates compensation if the person who is deceived has no mistakes regarding the issue. Therefore, it is necessary for the person who is deceived not to know that he is deceived. (as-Sarakhsi, ibid, XI, 81 vd.; al-Qasani, ibid, V, 25; az-Zaylai, ibid, VI, 145).
In addition to the five items listed above, there may be reasons like changing the properties of something and making something defective. However, it is possible to include these reasons under the headings, contract, destruction, grabbing or even only under contract and destruction. As a matter of fact, in civil law, two reasons for compensations are accepted as “wrongful act” and "acting contrarily to the terms of the contract". In other words, the reasons for compensation that are quite a few are included under these two headings. (see Mustafa Reşit Karahasan, Sorumluluk ve Tazminat Hukuku, İstanbul 1989, I, 58)
Types of Compensation
In the Islamic law, compensation for the harm to the wealth, life and body of a person is divided into various types like diyah, arsh, hukumatul-adl, hukumatul-alam and ghurrah. Compensation for the harm to things is expressed with the term "ta'wid" or "daman"; these two terms generally include the other types of compensation.
Diyah is the compensation for the harms that end in death related to people. Arsh and hukumatul-adl is the type of compensation that is applied when organs are destroyed or wounded. Hukumatul-alam is the compensation for the pains and agonies that are suffered. It is like “damages/compensation for mental anguish” in human legal systems. Ghurrah is a kind of compensation for harming the baby in the womb and causing stillbirth; this compensation has to be paid to the inheritors of the fetus.
Harm given to possessions can be compensated in two ways:
1- Compensation with something of the same kind. If the thing that is destroyed is a standard substance, something of the same kind is given as compensation. Things like wheat, barley, gold, silver, money, olive oil, construction iron and cement are measured, weighed or counted; therefore, they are compensated with something of the same kind. (al-Fatawal-Hindiyya, Egypt 1310/1892, IV, 12,13; Hamdi Döndüren, İslâm Hukukuna Göre Alım Satımda Kâr Hadleri, Balıkesir 1984, p. 84, 85).
2- Compensation with the equivalent: If something of the same kind of the thing that is destroyed cannot be found in the market, its equivalent is paid as compensation. Animals, buildings, carpets and used cars are like that. If an animal is destroyed, its equivalent or animal whose value is equal to that animal can be given as compensation.
Amanah (Trust) contracts
Types of contracts about which decrees of amanah are applied in Islamic law are as follows:
1- Wadia contract: A person gives something to somebody to keep it. It can be through a contract or openly like saying, "I am entrusting it to you." Or, it can be entrusted indirectly like leaving some goods that are saved from fire to the neighbors hastily when there is a fire. There is no disagreement that something that is entrusted to a person is regarded as trust and that compensation is necessary when it is harmed. For, responsibility for compensation occurs when that thing is destroyed due to deliberateness, mistake or negligence. The evidence for this is the following hadith: "The person to whom something is entrusted has no responsibility for compensation unless he misappropriates." (Reported from ad-Daraqutni and al-Bayhaqi, az-Zuhayli, Nazariyyatud-Daman, Damascus 1402/1982, 155.) When the owner of the thing asks for it, it is necessary to return the entrusted thing to him. The following is stated in a verse: “Allah doth command you to render back your Trusts to those to whom they are due.” (an-Nisa, 4/58)
However, it is necessary to compensate for the entrusted thing in the following cases: The deliberateness, mistake or negligence of the person to whom something is entrusted are not necessary in the destruction of the thing.
a- When the person to whom something is entrusted stops keeping the thing,
b- When he leaves the thing with a person to whom it is customarily not entrusted,
c- When he uses the entrusted thing for his own needs,
d- When he sets out on a risky journey with the entrusted thing,
e- When the owner wants the entrusted thing, he denies it,
f- When he mixes the entrusted thing with his own possession or another entrusted thing in a way that is impossible to separate,
g- When he acts contrarily to the conditions laid by the person who entrusted him the entrusted thing regarding keeping it. (as-Sarakhsi, al-Mabsut, XI,110, 122 ff; al-Qasani, Badayius-Sanayi VI, 208 ff; Ibnul-Humam, Fathul-Qadir, VII, 91 ff; Ibn Abidin, Raddul-Muhtar, IV, 516 ff)
2- Ariyah contract: It means to lend something to somebody freely so that he will use it. It is like giving something to a person for a certain period of time. Something given as ariyah is regarded as entrusted whether the person uses it or not. Therefore, he is not held responsible when it is destroyed unless his deliberateness, mistake or negligence exist. (as-Sarakhsi ibid, XI, 135; al-Qasani, ibid, VI, 217; Ibnul-Humam, ibid, VII, 103; az-Zuhayli, Nazariyyatud-Daman, 156) This view belongs to Hanafis.
According to Malikis, a person who borrows something as ariyah is held responsible for compensation if it is something that ken be kept like goods, clothes and jewels unless he proves that they have not been destroyed because of his mistake. He is not held responsible for the destruction of animals and immovable property. (az-Zuhayli, ibid, p. 157).
According to Hanbalis, ariyah has to be compensated by the person who borrows it by all means. It does not matter whether his deliberateness or mistake exists. The evidence for it is the hadith related to Safwan b. Umayya. Hz. Prophet wanted Safwan’s armor on the day of Hunayn Battle. Safwan asked, "O Muhammad! As ghasb (grabbing)?" He said, "No, as ariyah to be compensated". (Abu Dawud, Buyu', 88). This hadith determines the quality and decree of ariyah. The following is stated in another hadith: "The borrowed is to be returned, and the guarantor is responsible." (Abu Dawud, Buyu', 90; Tirmidhi, Buyu', 39; Ibn Majah, Sadaqat, 5)
In conclusion, According to Hanafis, something given as ariyah is regarded as something entrusted; According to Hanbalis, it is regarded as something to be compensated.
3- Company contract: There is unanimous agreement among fiqh scholars that the goods of the company in the hands of the partners are regarded as entrusted things like wadiah in the companies of goods. For, each partner, has taken the goods of other partners with the purpose of trade and with their permission. Having the goods does not mean that he aims to give the price of the goods.
Accordingly, if the goods kept by a partner are destroyed, the same goods or their equivalent do not have to be given as compensation unless there is a transgression. For, each partner is like the proxy of the other partners in keeping and using them.
The statement of the partner is accepted with his oath about the amount of the profit or loss, or the loss of the whole or some of the goods of the company. However, he is held responsible for compensation in case of deliberateness or mistake. (as-Sarakhsi, ibid, Xl, 157; Ibnul-Humam, ibid, V, 27; Ibn Abidin, ibid, III, 379; az-Zuhayli, ibid, 158, 159).
In the method of "mudaraba", which is a partnership of labor and capital, the mudaraba capital that the manager holds like wadia is regarded as something entrusted. For, he has taken it with the permission of its owner.
Therefore, the manager will not bear the consequences of the loss unless his deliberateness, mistake or negligence exist. His loss will be in the form of getting nothing for his labor.
4. Proxy contract: Wakalah (proxy) lexically means to keep and to give authority. Terminologically, it means to give authority somebody to represent one so that he will do some certain permissible deeds for him. Islamic law scholars agree unanimously that the goods that a proxy has are regarded as entrusted things like wadia, etc. For, his hand is the final hand of the one who gives proxy like the hand of a person who takes wadia. Therefore, his responsibility for compensation occurs like in other entrusted things. He is regarded as exempted in cases in which they are regarded exempted. In short, a proxy is not regarded responsible for destruction unless his deliberateness, mistake or negligence exist. (az-Zaylai, Tabyinul-Haqaiq, IV, 256; az-Zuhayli, ibid, 160).
5. Guardianship: It means to give one’s wealth to a person so that he will manage it after his death or to give the management and care of his wealth or children to a person after his death. Fulfillment of a person’s will after his death or giving the authority of taking care of the rights of one’s children after his death to a person is like guardianship.
6. Contract of Hiba (Donation/Grant): It means a person’s donating something as nafilah worshipping when he is alive. This contract is completed when that thing is delivered. According to Hanafi fiqh scholars, hiba is a contract of donation that is not binding. Islamic law scholars unanimously agree that taking the thing that is donated is like taking something entrusted that does not necessitate compensation. For, hiba is a contract of donation like ariyah or wadia.
The thing that is given as hiba is regarded as something entrusted when a person gives up hiba. For, according to Hanafis, it is possible and permissible to give up hiba through mutual agreement or a court decree. Hz. Prophet states the following: "A man has more right to his hiba so long as he has not gotten something in return for it." (Ibn Majah, Hibat, 6)
According to Shafiis and Hanbalis, it is permissible to give up hiba only for a father who has donated something to his child. Their evidence is the following hadith: "It is not permissible for a man to give a gift then take it back, except what a father gives to his child." (Bukhari, Hiba, 12)
If something that has been donated is destroyed or consumed, it is not possible to return it. Hiba is something donated to the person who keeps it. However, if a judge decrees that hiba be returned and the person to whom hiba has been given does not return it and if it is destroyed, the person is held responsible for compensation. For, if something entrusted is not returned when it is demanded, responsibility for compensation occurs. (al-Qasani, ibid, VI, 128; Ibn Abidin, ibid, IV, 542; az-Zuhayli, ibid, 162)
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