Will you explain verse 282 (Mudayana/Loan) of the chapter of al-Baqara? What is the wisdom behind the phrase "take witness when you lend money" in the verse?
Will you explain verse 282 (Mudayana/Loan) of the chapter of al-Baqara? What is the wisdom behind the phrase "take witness when you lend money" in the verse?
Submitted by on Tue, 12/06/2018 - 15:50
Dear Brother / Sister,
"O ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing: Let a scribe write down faithfully as between the parties: let not the scribe refuse to write: as Allah Has taught him, so let him write. Let him who incurs the liability dictate, but let him fear His Lord Allah, and not diminish aught of what he owes.
If the party liable is mentally deficient, or weak, or unable Himself to dictate, Let his guardian dictate faithfully, and get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her. The witnesses should not refuse when they are called on (For evidence). Disdain not to reduce to writing (your contract) for a future period, whether it be small or big: it is juster in the sight of Allah, More suitable as evidence, and more convenient to prevent doubts among yourselves
but if it be a transaction which ye carry out on the spot among yourselves, there is no blame on you if ye reduce it not to writing. But take witness whenever ye make a commercial contract; and let neither scribe nor witness suffer harm. If ye do (such harm), it would be wickedness in you. So fear Allah; For it is Allah that teaches you. And Allah is well acquainted with all things. If ye are on a journey, and cannot find a scribe, a pledge with possession (may serve the purpose). And if one of you deposits a thing on trust with another, let the trustee (faithfully) discharge his trust, and let him Fear his Lord conceal not evidence; for whoever conceals it, - his heart is tainted with sin. And Allah knoweth all that ye do." (a-Baqara, 2/282)
The power of emotion in women is stronger than that of men and the power of memory is weaker. There may be some women whose memories are stronger than most men but the decree is made based on gender and the general state. Therefore, the condition of two women is sought. However, this decree is related to trade, which is not something that women are generally engaged in. The witnessing of two women related to the fields that men are not engaged in, and even one woman in some cases, is regarded enough.
The Quran considered the legal and commercial institutions that humanity will reach much later than the time when it was sent down and established the institution of notary public. It is one of the universal dimensions of the Quran that it started the institutions that would be needed in advanced modern communities at a time when there were very few people who could read and write and when there was not even paper as a writing material.
There are three benefits of writing the rights like that:
1. Transactions will be done in accordance with justice and stability.
2. Witnessing will be carried out in the best way.
3. The best way to eliminate doubts is chosen.
The word "dayn" (debt) mentioned in the verse includes the meaning of salam (buying something by paying in advance and receiving it later), qard hasan (interest-free loan) and the debts due to forward sales. However, linguists say qard and dayn are different. Therefore, it is said that the debts that are demanded to be written by this verse are not debts of qard but debts due to buying/selling something, that is salam.
The transaction of salam means to buy something whose properties, amount and delivery date is certain by paying cash in advance and receiving it later. Such a deal is permissible according to all scholars. We see the following statement of Ibn Abbas in Bukhari:
"I witness that Allah renders it halal to buy something on a determined date with salam transaction," and he read the verse above.
The Messenger of Allah states the following regarding the issue in a hadith reported by both Bukhari and Muslim:
"He who wants to buy dates through salam transaction can buy them by determining a certain weight, amount and time."
Allah states the following: When you buy something through salam transaction like that and owe some money, write it mentioning the day and month in a clear way and in a way that will eliminate unknown things. Write I owe this or that amount of money to this or that person to be paid on this or that date. That is, do not think that Allah renders debt transactions haram since He renders interest haram. Allah allows it; you can borrow and lend; you can buy things to pay later but you have to write the date of payment. We should not forget that it is always better to write daily deals than not to write.
Hanafi scholars show this verse as evidence that it is necessary to determine a date in salam transactions. That is, the date of the debts to be paid due to buying something has to be written. It is necessary to write interest-free loans but determining the payment date is not necessary in such debts. For, in such debts, the creditor must be able to take any time. For, there is no benefit in it unlike commercial transactions. It is not permissible for the debtor to keep the money and to give it to the creditor when the creditor needs it.
Yes, Hanafi scholars showed as evidence that it is necessary to determine a date in salam transactions because our Lord says "in a fixed period of time" in the verse. The hadith mentioned above states the same thing too. "Let a scribe write down faithfully as between the parties."
It means either "Let a scribe write it down justly" or "Let a just scribe write it down". That is, let an impartial and just scribe that will protect the rights of both parties equally write it down. We can state both of them together as follows: Let a scribe whom and whose justice the debtor and creditor trust write it down justly and carefully. That is, let him not write anything other than what is necessary or not reduce anything.
We understand the following from the phrase Let a scribe write down between the parties: Our Lord says that along with writing in their own notebooks in the absence of one another for their own recording, let the debtor and the creditor make a scribe whose justice both of them trust write it down.
It is understood from the verse that the people who will fulfill the duty of writing and recording must be just and religious Muslims with fiqh knowledge and write legibly. Our Lord describes a notary public in the verse.
"Let not the scribe refuse to write: as Allah Has taught him, so let him write."
Let a person whom Allah gave the knowledge of Islam, the ability to write and to arrange documents not avoid helping Muslims when they need him. Let him help them at once. Then, we say that it is fard al-kifaya to write down debts. That is, it is fard al-kifaya for a person who can write. However, when he is appointed to do it, it becomes fard al-ayn for him.
"Let him who incurs the liability dictate."
What is meant by "who incurs the liability" is the person who is indebted. The person who owes will be written like that; his debt will be determined and he will accept his debt. Then, the statement to be written will belong to the debtor.
It is understood from the phrase in the verse that in such a debt, the person who owes needs to offer the debt to be determined and recorded. The address "Let him dictate" is for the debtor. Thus, the debtor himself will accept with his own statement that he owes money, eliminating all doubts regarding the issue and feeling satisfied.
"But let him fear His Lord Allah, and not diminish aught of what he owes."
Let the debtor fear Allah when he dictates his debt. That is, let him not avoid dictating it and let him not make a mistake like writing less or more than the things and amount determined by both parties. Let him not dictate a grammatically incorrect sentence that will cause disagreements and misunderstandings in the future, that will distort the legal state of the debt or that will make collecting the money difficult.
"If the party liable is mentally deficient, or weak, or unable Himself to dictate, Let his guardian dictate faithfully."
If the person who borrows is a mentally deficient person who will spend his money extravagantly, or a weak person, or a child or an insane person or and ignorant person or a very old person who is about to become senile, or dumb or a stutterer or a foreigner who does not know the language to be written or a person who has nobody to write for him, let his guardian dictate his debt justly.
"And get two witnesses, out of your own men."
Make two Muslim men among you witnesses in this debt business. Accordingly, the witnesses must be men and Muslims; they must not be children. They must be two sane people who have reached the age of puberty. The witnessing of children and non-Muslims for believers is not valid. For, our Lord did not say "two men" but "two witnesses out of your men", that is, two Muslim men among you. In that case, the witnessing of non-Muslims for Muslims is not valid. However, the witnessing of non-Muslims among themselves is valid.
"And if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her."
If there are not two men to witness, let one man and two women you will choose be witnesses. The phrase "you will choose" here means the people whose religion, justice and honesty you accept. According to Imam Abu Hanifa, it is laid as a condition for witnesses to be Muslims apparently, not to have committed major sins and to fulfill fard deeds. However, the witnessing of unbelievers related to the transactions among them is regarded acceptable.
I want to clarify something in order to prevent misunderstanding here. The reason why the witnessing of two women is regarded as equal to that of one man is not to insult or despise women but to ensure that rights are not lost. I will explain it in items:
1) Firstly, sentimentality overweighs in the nature of women. Therefore, they are excited and influenced more than men due to their nature. Extreme excitement and being influenced extremely weaken the memory and increase forgetfulness.
As a matter of fact, it is also not possible to trust the memory of many men due to their extreme excitement and being influenced extremely. Not ordinary men but just men you can trust are mentioned in the verse.
2) Women should not be kept busy with things that take place outside like trade, buying/selling and debt. Things like that are the works of men. It is not possible for a Muslim woman to walk outside alone freely in a way that will be a witness to the things that happen around. It is perfection of womanhood for a woman to keep her memory closed to things that happen outside. Therefore, a woman can easily forget an incident that she has seen. It is better for another woman to be with her so that she will remind the other when she forgets. It is not a nice thing for a woman to be taken to various places as a witness, to be forced to talk to unnecessary people or to try to remember things that she has forgotten with the help of other men. However, if there is at least another woman with her that will witness for the issue, the other will remind her and hence a right will be protected.
The women may not have given importance to the issue related to trade since it is not something that they are interested in. This field is generally outside their interest. Therefore, it is possible for them to make a mistake. However, if one of them forgets, the other will remind her and hence the right of people will be protected.
3) It is also an issue of belief because Allah stated it. It is unbelief to think or claim the opposite because it will mean to reject the decree of the verse.
"The witnesses should not refuse when they are called on (For evidence)."
When the witness are called to witness, they should not avoid it. They should witness about the things they know so that the rights of people will not be lost. We understand from the statement in the verse that it is wajib for the witnesses to witness when they are called. Besides, the scholars claim that it is necessary for those witnesses to witness even without being called. For, the protection of people’s wealth and rights is very important. Our Lord states the following regarding the issue:
"…And establish the evidence (as) before Allah." (at-Talaq, 65/2)
The Messenger of Allah states the following in a hadith:
"Help your brother whether he is the oppressor or the oppressed."
It is understood from the hadith that when a Muslim is oppressed and his right is violated, it is necessary for another Muslim who has knowledge about the issue to go and help him. As a matter of fact, the Messenger of Allah states the following in a narration reported by Muslim:
"The best of the witnesses is the one who witnesses without being called." (Muslim, Tirmidhi, Ibn Majah)
When Allah’s right is in question, witnesses have to fulfill the duty of witnessing without being called.
"Disdain not to reduce to writing (your contract) for a future period, whether it be small or big: it is juster in the sight of Allah, More suitable as evidence, and more convenient to prevent doubts among yourselves."
Our Lord orders both parties to write down the debts whether it is a small or big amount so that people’s rights will not be lost, hearts will be free of suspicion and doubt and the hearts of both the debtor and the creditor will be satisfied. The debts should be written including all installments and in detail.
What is written should be clear and legible. Our Lord says do not ignore it by saying, "It is a little amount; it is worthless. Is it necessary to write such a small amount?" He wants Muslims not to act slackly and negligently related to the issue.
For, we see today that some friends and relatives do not write down their debts due to negligence and slackness. For, they regard it as distrust if they write it clearly. However, our Lord wants everything to be written clearly. Otherwise, bad things happen because people forget or act dishonestly since the debt is not written. Most of the disagreements among Muslims occur because of it.
Then, we have to write down the debts between the debtor and the creditor whether it is a small or big amount so as not to cause disagreement. In general, small amounts are ignored and not written. However, our Lord states that it is necessary to be written even if the debt is very small.
The Messenger of Allah (pbuh) explains this in a hadith and says that three kinds of people pray Allah and that their prayers are not answered. The first one is a man who does not divorce his wife though she has deviated from the right path; the second one is a person to whom the wealth of an orphan is entrusted and who delivers it to the orphan before he becomes mature enough; the third one is a person who lends money to others without any written document or evidence.
In that case, write down your debts whether it be small or big because
"It is juster in the sight of Allah, More suitable as evidence, and more convenient to prevent doubts among yourselves."
"But if it be a transaction which ye carry out on the spot among yourselves, there is no blame on you if ye reduce it not to writing."
It is permissible not to write when the money is paid cash and the goods are delivered in the same place. However, it does not mean that it should not be written. It means it is better if you write but you do not have to write. For, there is no worry about debt in cash payment and instant delivery. The goods are delivered and money is received on the spot. You do not have to write in that case
"But take witness whenever ye make a commercial contract; and let neither scribe nor witness suffer harm."
Our Lord, who gives permission not to write in the cash payment and instant delivery in the previous sentence, orders people to take witness related to commercial contracts. Our Lord says take witness whether it is a cash deal or deferred payment and even if you do not write it. The order to take witness here includes all kinds of commercial deals whether it is instant or deferred payment. That is, our Lord says take witness in all commercial deals whether the money is paid on the spot or later. For, it is more cautious and it can prevent the disagreements that can occur between you. We try to understand the statement let neither scribe nor witness suffer harm as follows:
1) It is an order for the scribe and the person who is asked to be a witness not to accept what is wanted from them.
2) Or, they are ordered to avoid any distortion, reduction or addition while writing or witnessing.
3) Or, they are ordered not to harm the scribe and the witness by preventing them from doing their more important work by insisting.
4) Or, if the act of writing is done in return for money, they are ordered not to harm the scribe by not giving him the fee for writing or not to harm the witness and the scribe by not paying their expenses when they go to another city or town for writing and witnessing.
"If ye do (such harm), it would be wickedness in you. So fear Allah; For it is Allah that teaches you. And Allah is well acquainted with all things."
If you harm the scribe and the witness, it is disobedience to Allah’s order and a sin. Those who do so become sinners because they act contrarily to what Allah orders. O Muslims! Then, fear Allah. Act with taqwa related to fulfilling His orders and acting in accordance with His prohibitions. Find your way with Allah and act in accordance with the way Allah shows you. Then, Allah will teach you the religious decrees that you do not know, show you the way and grant you foresight and understanding.
However, we should not understand the following from that verse as some people try to claim: It is enough if a person fears Allah. Allah will make him a scholar without his trying, making efforts and following the way of knowledge. They say the verse says Allah will definitely teach you what you do not know if you fear Allah. This understanding caused many people to claim that they were scholars and the views uttered by those people who became scholars without studying related to the Quran, hadith and fiqh deceived many ignorant people leading them to different ways.
"So fear Allah; For it is Allah that teaches you."
The meaning of the sentence above is not like that. This understanding is the elimination of taqwa – God forbid. It is contrary to nature of man to become a scholar without making efforts, studying, reading and trying to learn.
In the verse, the letter “waw” is used after the phrase "fear Allah". So, the meaning is fear Allah; Allah teaches you. If “fa” had been used instead of “waw”, then meaning would be if you fear Allah, Allah will teach you, or if no preposition had been used, it would be evidence for that understanding. However, the sentence is not like that. Besides, ilm brings about taqwa. It is not possible to mention taqwa without ilm. Ilm is essential; taqwa is secondary. The Messenger of Allah (pbuh) states the following regarding the issue:
"Ilm is obtained by learning." (Daraqutni, Tabarani)
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