النص المفهرس

Objection: The one who takes the responsibility of the medical
treatment - is he one specific hired person (ajīr khas) or is he shared
by others (ajīr mushtarak)? If he is a specific person, how does he take
the responsibility for other people? Because an exclusively hired
person does not work for others.
والخاص لا يمكن أن يعمل لغيره لأن منافعه فى المدة صارت مستحقة
للمستأجر والأجر مقابل بالمنافع. (فتاوى الشامى: ٦٤/٦، باب ضمان الاجير،
سعيد)
If he is shared by others, he will only be eligible for payment when he
does the work. On the other hand, in a medical aid, he receives
payment even if he did not do any work for that month.
Answer (1): Some jurists have combined an ajīr khās and ajīr
mushtarak in certain situations. For example, if a wet nurse suckles
infants at her house, she is an ajīr khas and ajīr mushtarak. In other
words, she receives payment for suckling even though she suckles
other infants.
والحاصل أن المسائل فى الظئر تعارضت فمنها ما يدل على أنها في معنى أجير
الوحد كقولهم لعدم الضمان فى بذه، ومنها ما يدل على أنها في معنى المشترك
كقولهم إنها تستحق الأجر على الفريقين إذا أجرت نفسها لهما، قال الاتقاني:
والصحيح أنه إن دفع الولد إليها لترضعه فهي أجير مشترك وإن حملها إلى
منزله فهي أجير وحد وقال فى العناية: وذكر فى الذخيرة ما يدل على أنها يجوز
أن تكون خاصاً ومشتركاً حتى لو أجرت نفسها لغيره استحقت الأجر على
الفريقين كاملاً عملاً بشبه الأجير المشترك وتأثم نظراً إلى أن لها شبهاً
بالأجير الخاص. (فتح المعين: ٢٥٤/٣، وكذا فى فتاوى الشامى: ٧١/٦، سعيد)
أقول: ويرتفع الإثم إذا كان الإذن بالعمل للغير.
In the same way, a medical aid may treat a person or it may not
because he did not need treatment in a certain month. Like an ajīr
khas, the medical aid will be eligible for payment and it can accept
work from others.
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Answer (2): We move away from the issue of ijarah. The second answer
which could be given is that in an 'aqd-e-muwalat (agreement of
patronage), the jurists say that if a lower maulā (patron) commits a
crime, the higher maula will have to pay the blood money. If the lower
maulā passes away, the higher maula will receive inheritance.
Whereas, even if a lower maula never commits a crime, the higher
maulā will still receive inheritance because he took the 'aqd-e-daman
(contract of guarantee).
الدر المختار:
(أسلم رجل) مكلف (على يد آخر ووالاه أو) والى (غيره) الشرط كونه عجمياً
لا مسلماً على ما مر وسيجىء (على أن يرثم) إذا مات (ويعقل عنه) إذا جنى
(صح) بذا العقد (وعقله عليه وإرثه له). (الدر المختار: ١٢٦/٦، فصل فى ولاء
الموالات، سعيد)
حاشية الطحطاوى على الدر المختار:
قال إبرابيم النخعي: إذا أسلم الرجل على يدى رجل ووالاه فإنه يرثه ويعقل
عنه وبذا قول علمائنا الثلاثة. (حاشية الطحطاوى على الدر المختار: ٧٠/٤،
كوئته)
In this way, even the objection that the person who deposited money
in a medical aid did not fall ill in that month is also repudiated.
The gist of the answer is that the company collects a monthly amount
because of the 'aqd-e-daman even if the client does not fall ill. It is still
permissible for it to collect this amount as mentioned in 'aqd-e-
muwalat that despite not committing a crime, the maula receives
inheritance. And the jurists said that it is permissible to accept the
inheritance.
From among the Urdu fatawa, Maulana Muftī Rashid Ahmad
Ludhyanwī Sahib rahimahullah presents a short reply on the
impermissibility of medical aid. The text is quoted from Ahsan al-
Fatāwā:
Question: In America, medical treatments and medical facilities are
provided by private institutions ...
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Answer: It is not permissible. Allāh ta'ālā knows best.1
It is possible that Hadrat Muftī Sahib stated that it is impermissible
because the nature of the work is unknown. There are other places
where he says that ignorance of the nature of the work is permissible
if it does not lead to dispute. He says with reference to the payment for
making rotīs: (1) The payment becomes due on account of the work.
(2) The payment is unknown. The answer to the other objection is that
if ignorance with regard to the amount of payment does not lead to
dispute, it does not invalidate the agreement. Most jurists have noted
this.
وأما شرائط الصحة ومنها أن يكون المعقود عليه وبو المنفعة معلوماً علماً
يمنع المنازعة فإن كان مجهولاً جهالة مفضية إلى المنزاعة يمنع صحة العقد
وإلا فلا. (الفتاوى الهندية: ٤١١/٤)
Hadrat 'Allāmah Anwar Shah Kashmirī rahimahullah makes a valuable
point:
إن الناس يعاملون في أشياء تكون جائزة فيما بينهم على طريق المروءة
والإغماض، فإذا رفعت إلى القضاء يحكم عليها بعدم الجواز، فالاستقراض
المذكور "أى استقراض البعير" عند عدم المنزاعة جائز عندي، وذلك لأن
العقود على نحوين: نحو: يكون معصية في نفسه وذا لا يجوز مطلقاً، ونحو
آخر: لا يكون معصية وإنما يحكم عليه بعدم الجواز لإفضائ إلى المنازعة
فإذا لم تقع فيه منازعة جاز. (فيض البارى: ٢٨٩/٣، كتاب الوكالة)
The gist of the above text is that when a transaction does not entail
sin, then ignorance alone cannot be cause of invalidity unless it causes
dispute.
'Alī Ahmad an-Nadwī states:
1 Ahsan al-Fatāwā, vol. 7, p.25.
481

الجهالة ليست بمانعة لذاتها، بل لكونها مفضية إلى النزاع، وبذا أصل مهم
ينبغى التعويل عليه فى الأحكام، فإن به حل كثير من المشكلات، وليعلم أن
أحكام المعاملات الشرعية مبنية على أصلین عادلين:
الأول: منع كل ما فيه ظلم وأكل لأموال الناس بالباطل.
الثاني: منع ما يؤدي إلى الاختلاف والنزاع بسبب الجهالة، فإذا انتفى ما يؤدي
إلى الظلم والنزاع بسبب الجهالة، صح التعامل، والعرف أصل عظيم يرجع
إليه في ذلك بعد الشرع. (جمهرة القواعد الفقهية فى المعاملات المالية: ٣١٩/١،
تحت القاعدة: الجهالة انما توجب الفساد اذا كانت مفضية الى النزاع المشكل)
Hadrat Muftī Walī Hasan Sahib rahimahullah states:
A general principle is that an ignorance which is a cause of dispute is
prohibited, while the one which does not cause a dispute is not
prohibited.1
Nowadays there are certain forms which are similar to medical aid,
and which people are adopting and practising. For example, making an
agreement with a security company whereby it is paid a monthly
amount to see to the security needs of a person or business. If a vehicle
is stolen, the security company is able to track it down or make radio
announcements. It then tries to retrieve the vehicle from the thieves.
Here too, the security or services which are received in exchange for
the monthly payment are unknown. Sometimes years go by without
the security company having to track the person's vehicle. Since this
agreement does not cause a dispute, it is permissible. A medical aid can
be understood in the same light.
Another angle to medical aid schemes is that some of these companies
are not commercial enterprises. They make profits only as much as are
required for the payment of their staff, and they consider their
services to be voluntary and humanitarian. It is probably stated in
their rules that they operate on mutual assistance. We could therefore
include this as a preconditioned donation (tabarru'-e-mashrūt). The
company renders help and assistance, and it is given some money in
1 Dars al-Hidāyah, part three, p. 29.
482

exchange for it. The jurists state that a preconditioned donation is
permissible.
There is a detailed question in Imdad al-Ahkām. The gist of it is: A
company makes an agreement with a retail business: "If you buy goods
to the value of ten thousand from our company, you will receive three
hundred rupees as a discount. But if you buy from any other company
which is similar to ours, even once, you will not get this discount." Is it
permissible to lay down this condition?
This agreement is permissible because the commission which the
buyer receives at the end of the year is a donation from the seller. The
right of the buyer is not critical, and it is permissible to precondition a
donation.1
The following is stated in another place:
Question: Is it permissible to collect admission fees and monthly fees
from students of madāris?
Answer: It is permissible because it is not a wage but a donation, and it
is permissible to lay down a condition in a donation. It does not entail
compulsion because if a student does not accept the condition, he has
the right of not admitting himself into the madrasah.
ودليله أنه صلى الله عليه وسلم قال لمن أضافه وعائشة رضى الله تعالى عنها
قال: لا، قال: فلا إذن حتى قال فى الثالثة: وعائشة رضى الله تعالى عنها، قال:
نعم. (امداد الاحكام: ٦٠٦/٣)
The crux of the question is that how can admission fees be permissible
because it is not a payment for the education? Education fees are
charged separately. The crux of the answer is that it is tabarru'-e-
mashrūt, viz. our giving you admission is preconditioned with a
donation. This does not entail compulsion because the child's father
has the right of not admitting his child in the madrasah in the first
place.
Hadrat Abu Bakr radiyallahu 'anhu bought a palanquin for a camel
from Hadrat 'Āzib radiyallahu 'anhu and said to him: "Tell your son,
Barrā', to take this palanquin with me." Hadrat 'Āzib radiyallahu 'anhu
said: "He will take it on condition that you relate the story of the
Hijrah." Hadrat 'Azib radiyallahu 'anhu preconditioned the favour of
1 Imdād al-Ahkām, vol. 3, p. 386.
483

carrying the palanquin with relating the story of the Hijrah, and
Hadrat Abu Bakr radiyallahu 'anhu accepted the condition of relating
the story.
عن البراء رضي الله عنه قال: اشترى أبو بكر رضي الله عنه من عازب رضي
الله عنه رحلاً بثلاثة عشر دربماً، فقال أبو بكر رضي الله عنه لعازب رضي
الله عنه: مر البراء فليحمل إلي رحلي، فقال عازب رضي الله عنه لا، حتى
تحدثنا كيف صنعت أنت و رسول الله صلى الله عليه وسلم حين خرجتما من
مكة. (رواه البخارى: ٥١٥/١، مناقب المهاجرين)
This refers to a preconditioned donation which is permissible
according to the Shari'ah. Similarly, the responsibility of medical
treatment in a medical aid is preconditioned by a donation.
In short, whether you include it as an ijarah agreement or a tabarru'-e-
mashrut, both transactions are permissible. Neither of the two is
impermissible.
Objection: Whether you refer to it as an ijarah or tabarru' bi al-'iwad,
in both cases, the overriding feeling is that medical aid companies are
involved in usurious transactions or accept interest from banks. What,
then, is the ruling with regard to a medical treatment which contains
the element of usury?
Answer: In non-Muslim countries, the medical aid companies are
generally owned by non-Muslims. There are three views with regard
to doing business with non-Muslims:
1. Imām Zufar rahimahullah says that the ruling of invalidity will be
applied to whatever dealings a harbī does in a dar al-harb which are
against the Shari'ah. This, notwithstanding the fact that a harbī, due to
the absence of governorship over him, and a dhimmī, due to the
covenant with him, will not be interfered with. Thus, whatever wealth
a non-Muslim acquires through impermissible means - whether
through interest, gambling or sale of alcohol - it is not lawful for a
Muslim to accept it.
2. Imām Abū Yusuf and Imam Muhammad rahimahullah are of the
view that if a harbī does transactions which are against the Shari'ah in
a dar al-harb, then they are not invalid. This is because he has not
imposed adherence to the laws of Islam on himself. Yes, a dhimmī who
lives in a Muslim country - Islamic injunctions will be applied to his
transactions. If his transactions are against the unanimous laws of
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Islam, they will be classified as invalid. Subsequently, the money which
he acquires will not be lawful for Muslims. If he acquires interest
money, it will not be lawful for Muslims.
3. Imām Abū Hanīfah rahimahullah is of the view that non-Muslims -
whether living in dar al-harb or dar al-Islam - are not obliged to
adhere to Islamic laws without their pledging to do so. Non-Muslims
living in a dar al-harb are far from adhering to Islamic laws. As for
non-Muslim dhimmīs living in dar al-Islam, they have not imposed on
themselves those laws which are against their religion, creed or law.
Nor did they impose Islamic laws on themselves. Therefore, we cannot
classify as invalid their transactions which are against the Shari'ah. It
will be lawful for Muslims to accept their earnings. Yes, if dhimmīs
sign a written agreement with Muslims or accept such a condition
whereby if they do anything which is against Islamic law, then it will
be classified as invalid. In such a case, it will be unlawful for Muslims
to accept it. Non-Muslims living in non-Muslim countries are like
harbīs. Therefore, their transactions which are in line with their laws
will not be classified as invalid. It will be permissible for Muslims to
accept the profits which they [non-Muslims] accrue from their
transactions. Hadrat
Maulānā Zafar Ahmad 'Uthmanī Sahib
rahimahullah has shed a detailed light on this issue in Imdād al-Ahkām,
and this fatwa was reviewed by Hadrat Thanwī rahimahullah.
We gauge from the text of Imdad al-Ahkam that Maulana Zafar Ahmad
'Uthmanī Sahib rahimahullah issued his fatwa on the view of Imam
Abū Hanīfah rahimahullāh.
The gist of his answer is:
Although non-Muslims are addressees of subsidiary matters as regards
punishments and transactions, a general address is insufficient to
classify their transactions as unlawful and invalid. Rather, adherence
is also a prerequisite. Harbīs do not adhere at all to Islamic laws,
whether the latter are in line with their beliefs or not. Therefore, no
matter how they earn their wealth - whether through usury, usurping,
invalid transactions, in line with their religion or not - their wealth
will be included and absorbed into their country. It is permissible for
Muslims to accept their money as a wage.1
However, from a text of al-Hidayah, we learn that Muslims and non-
Muslims are equal as regards interest transactions. In other words,
interest transactions are prohibited to both. Therefore, if the majority
1 Imdād al-Ahkām, vol. 4, p. 390.
485

portion or all the wealth of a medical aid company is made up of
interest, then one should abstain from taking assistance from such a
company. Yes, if its major income in lawful, there will be no objection
to deriving benefit from it and accepting medical treatment from it.
الهداية:
والربا مستثنى عن عقودبم لقوله عليه السلام: ألا من أربى فليس بيننا وبينه
عهد. (الهداية: ٣٣٨/٢)
The answer to the above text was given in detail in the chapter on the
disbursement of usury. Refer to it.
امداد الفتاوى:
إن كان غالب مال المهدى من الحلال لا باس بأن يقبل الهدية ويأكل ما لم
يتبين عنده أنه حرام لأن أموال الناس لا تخلو عن قليل حرام فيعتبر الغالب،
وإذا مات عامل من عمال السلطان وأوصى أن يعطى الحنطة للفقراء قالوا: إن
كان ما أخذه من أموال الناس مختلطاً بماله لا بأس به وإن كان غير مختلط لا
يجوز للفقراء أن يأخذوه إذا علموا أن مال الغير وإن لم يعلم الآخذ أنه من
مال أو مال غيره فهو حلال حتى يتبين أنه حرام. (امداد الفتاوى بحواله
قاضيخان: ٤٩٤/٣)
We learn from the above texts that if halal is more than haram, there
is no objection to entering into an agreement with it and accepting
medical treatment from it. Yes, if the haram is more, and it is a Muslim
company, then it will be unlawful to enter into an agreement with it.
Allāh ta'ālā knows best.
Receiving money from a medical aid company
Question
One form of medical aid is where the patient receives money directly
from the company and he then uses it for his medical treatment on his
own. Is this permissible?
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Answer
This is totally unlawful. That is, to receive money from the medical aid.
This is because the amount which the person will receive will
inevitably be more than what he had paid into the medical aid scheme.
The extra amount which he receives is not in return for anything.
Rather, it is an amount which has been added to the person's
contribution. This will be unequivocal usury, and therefore unlawful.
التعريفات:
الربا بو فى اللغة: الزيادة، وفى الشرع: بو فضل خال عن عوض شرط لأحد
العاقدين. (التعريفات للجرجانى، ص ١١٢)
اعلاء السنن:
الفضل المشروط فى القرض ربا محرم لا يجوز للمسلم من أخيه المسلم أبداً،
الإجماع المجتهدين على حرمته. (اعلاء السنن: ٥١٨/١٤، ادارة القرآن)
حجة الله البالغة:
الربا بو القرض على أن يؤدى إليه أكثر وأفضل مما أخذ. (حجة الله البالغة:
٢٨٢/٢، قدیمی)
A person should not collect any money from the company for his
medical treatment. Instead, the company should take the
responsibility of his treatment in return for the money which he
contributes. In such a case, the company will be providing him with
medical treatments in return for the monies which he paid to the
company. Although the return of the amount is unknown, because this
ignorance does not lead to dispute, and people enter into such
agreements notwithstanding the unknown, it will be permissible.
At the same time, it should be borne in mind that some 'ulama'
prohibit this as well, and say that it is unlawful. Therefore, as a
precaution, a person should not enter into such an agreement.
Although there is room for permissibility, these companies engage in
usurious transactions. In such a case, a person will certainly be
committing the offence of supporting these companies. For proofs on
this issue, refer to the previous detailed fatwa on medical aid.
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Allāh ta'ālā knows best.
Collecting fees from a medical aid company
Question
Is medical aid permissible? If it is not permissible, doctors collect their
fees from the medical aid companies. What is the ruling in this regard?
Answer
You pay contributions to a medical aid and receive medical treatment
in exchange for it. You do not receive the money directly. This is
permissible. When doctors treat a patient, they may collect their fees
from the medical aid company. There is no objection to it because they
are receiving a payment for their work. Yes, if the major portion of a
medical aid company's income is haram, it will be necessary to abstain
from it.
Fatāwā Mahmūdīyyah:
A doctor charges a consultation fee. This is permissible. He may spend
this income as he likes.1
Allāh ta'ālā knows best.
Left-over medicine of a medical aid company
Question
A person has a medical aid. Is it permissible for him to obtain medicine
for his sick brother through this medical aid? Also, he obtained
medicine from the medical aid company for himself. He has some left-
over. Can he give it to someone else?
Answer
If a person received medicine through his medical aid and some of it is
left-over, and there is no rule stating that he has to return it, then it
will be permissible for him to give it to someone else. However, if he
uses his name to obtain medicine for someone else, then this is
deception and cheating. It is unlawful. Yes, if the medical aid company
permits the person to obtain medication for his wife, children or
parents, it will be permissible for him to do this.
Allāh ta'ālā knows best.
1 Fatāwā Mahmūdīyyah, vol. 16, p. 391.
488

Medical insurance
Question
Is medical insurance permissible?
Answer
Medical insurance is similar to medical aid. The ruling will therefore
be the same. That is, if the company treats a person in exchange for his
contributions, and does not return the money to him, then it will be
permissible. But if it gives the money over to him, it will be
impermissible. Furthermore, the major portion of the company's
income must be halal. If the majority is haram, it will be
impermissible. Refer to the previous detailed fatawa for proofs.
Allāh ta ālā knows best.
Medical insurance and mutual assistance
Question
Take the following form of medical insurance as an example: A few
friends working in an office establish a formal fund where each person
deposits a certain amount from his salary into the fund. Every member
will be assisted from the fund when he requires medical treatment. If a
large number of members is assisted from the fund, the fees of all
members are increased. If a small number is assisted, the fees are
reduced. Is this permissible?
Answer
Since this form of medical insurance does not contain the elements of
usury or gambling during all stages of the process, and there is no
other part which is against the Shari'ah, then not only is it permissible;
it is mustahab. This is one of the forms of insurance and mutual
assistance which has been suggested by the 'ulama'. Muslims ought to
discard the unlawful forms of insurance and opt for those which are
lawful.1
Observe the decision of the Islamic Fiqh Academy, Rabitah 'Ālam
Islāmī, Makkah Mukarramah on the issue of mutual assistance:
Acting under the unanimous decision of the Saudi Arabian Hay'ah
Kibār al-'Ulamā' (decree no. 51, dated 04/04/1397 A.H.), the Academy
supports the verdict of permissibility with respect to cooperative
1 Condensed from Ap Ke Masa'il Aur Oen Kā Hull, vol. 6, p. 257.
489

insurance and the impermissibility of commercial insurance. This is on
the basis of the following proofs:
1. Cooperative insurance is a type of 'aqd-e-tabarru' whose
fundamental objective is the distribution of losses and sharing of
responsibilities during calamities. To this end, some people collect
cash monies and assist the person who has suffered loss. The objective
of cooperative insurance is neither commerce nor making profits from
the wealth of others. Rather, it is to distribute losses and make up for
them.
2. Cooperative insurance is devoid of both types of usury - riba al-fadl
and riba an-nisa'. The agreement with the participants is neither
usurious, nor are the collected monies used in usurious transactions.
3. In a cooperative insurance, the ignorance of the participants as
regards the amount of benefits which are accrued is not harmful. This
is because they are donors, and there is no fear of cheating and
gambling. On the other hand, a commercial insurance is a financial
commercial return.
4. Participants or their representatives use the contributions to make
up an investment which is then used for the fulfilment of the objective
of mutual assistance. Whether those who undertake the investment do
it voluntarily or in return for a payment, there is no objection to this.
... It is the view of the assembly that the following principles be
considered when preparing details on the issue of cooperative
insurance:
1.
The cooperative insurance organization must have a central
office which has branches in all the cities. The organization must have
separate compensations for losses, and separate departments
according to the skills and professions of the participants. For
example, a department for health insurance, a department for
paraplegics, a department for the aged, etc.
2.
The structure of the cooperative insurance organization must
be simple and basic; it must be totally devoid of complex systems.
3.
The organization must have a higher assembly which will
decide on the modus operandi, and stipulate essential rules which will
be promulgated only after they are in line with the Shari'ah.
4.
If losses are more than the income which the organization
receives, and this causes an increase in the contributions, then the
government and partners should bear that additional costs.
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The Hay'ah Kibar al-'Ulama' of the Islamic Fiqh Academy supports the
view that detailed resources on cooperative insurance companies be
prepared through the assistance of experts in the field.1
Further reading: Islam Aur Jadīd Ma'āshī Masā'il, vol. 7, p. 292; Jadīd Fiqhī
Masā'il, vol. 4, p. 102.
Allāh ta'ālā knows best.
Becoming a member of a medical aid
Question
Is it permissible to become a member of a medical aid?
Answer
If a medical aid provides medical treatment in exchange for monetary
contributions and the majority of its income is halal, then it is
permissible to become a member. If this is not the case, it will not be
permissible.
Allāh ta'ālā knows best.
Taking out an insurance
Question
An organization owns properties which include houses, schools,
madāris and masajid. Is it permissible to take out insurance for these
buildings? If it is impermissible, what is the reason for it? What is the
ruling if someone has already taken out an insurance?
Answer
When we examine the fundamentals under which present-day
insurance operate, we conclude that in the light of Shari ah principles,
no type of insurance for possessions and properties is permissible. The
ruling of impermissibility is because of the presence of prohibitions
which are clearly and explicitly proven from the absolute texts - the
Qur'an, the Sunnah and ijma'. The two prohibitions are usury and
gambling. This is why insurance is harām.
Usury: The money which is given to an insurance company is classified
as a loan according to jurisprudence. The additional benefits which are
received when it is returned are, so to say, in recompense for the time
1 'Asr Hādir Ke Peychīdah Masā'il Kā Shar'ī Hull, compiled by Qādī Mujahidul
Islām Qāsimī Sāhib rahimahullāh, pp. 37-40.
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which was given and specified for the return of the loan. Although the
insurance company refers to the benefits as a bonus, it is usury in
reality. Changing its name cannot change its essence. It is with
reference to this reality that Hadrat Muftī Muhammad Shafi Sahib
rahimahullāh writes:
The mere changing of a name does not change the reality of a
transaction. The benefits which are received from an insurance
company undoubtedly fall under the definition of interest and usury.1
Gambling: The second evil which is found in it is qimar (gambling).
The reality of gambling is that wealth is put down by both sides, while
the profit and loss are linked to an unspecified and unknown thing.
The jurists refer to this as khatar wa mukhatarah. The rule with regard
to qimār as noted by the jurists is:
تعليق الملك على الخطر والمال فى الجانبين. (جوابر الفقر: ٢٢٧/٢، وامداد
الفتاوى: ١٦١/٣)
Abū Bakr Jassās Rāzī rahimahullāh writes:
لا خلاف بين أبل العلم في تحريم القمار وإن المخاطرة من القمار قال ابن
عباس رضي الله عنه: إن المخاطرة قمار وإن أبل الجابلية كانوا يخاطرون على
المال والزوجة وقد كان ذلك مباحاً إلى أن ورد تحريمه. (احكام القرآن: ٣٢٩/١،
باب تحريم الميسر، وكذا فى احكام القرآن للتهانوى: ٣٩٣/١)
رد المحتار:
وسمى القمار قماراً لأن كل واحد من المقامرين ممن يجوز أن يذيب ماله إلى
صاحبه، ويجوز أن يستفيد مال صاحبه، وبو حرام بالنص. (رد المحتار: ٤٠٣/٦،
كتاب الحظر والاباحة، سعيد)
Muftī Muhammad Shafī rahimahullāh writes in Ma'ārif al-Qur'ān:
All the Sahabah radiyallahu 'anhum and Tabi'un concur that all forms
of gambling are included in maysir and that all are haram. Ibn Kathir
rahimahullāh in his Tafsīr, and Jassās rahimahullāh in Ahkām al-Qur'ān
1 Jawahir al-Fiqh, vol. 2, p. 181.
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state that Hadrat 'Abdullah ibn 'Abbas radiyallahu 'anhu, Ibn 'Umar
radiyallāhu 'anhu, Qatādah radiyallāhu 'anhu, Mu'āwiyah ibn Salih
radiyallāhu 'anhu, 'Atā' rahimahullah and Tā'ūs rahimahullah said:
الميسر القمار حتى لعب الصبيان بالکعاب والجوز.
Every type of qimār is maysir even to the extent of children's games
with blocks of wood and walnuts.1
Faqīh Abū al-Layth Samarqandī rahimahullah writes in his explanation
of maysir:
وقال عطاء ومجابد: الميسر القمار كل حتى لعب الصبيان بالجوز والكعاب.
(تفسير السمرقندى: ٢٠٣/١)
In the case of an accident, there is the doubt of receiving benefits from
an insurance company or not receiving them. This is included in
qimār. And there are clear texts on the prohibition of qimār.
The Qur'an states:
فَأَيُّهَا الَّذِيْنَ أُمَنُوا إِنَّمَا الْخَمْرُ وَالْمَيْسِرُ وَالْأَنْصَابُ وَالْأَزْلاَمُ
رِجْسٌ مِّنْ عَمَلِ الشَّيْطِنِ فَاجْتَنِبُوْهُ لَعَلَّكُمْ تُفْلِحُوْنَ.
O believers! This wine, gambling, idols and divining
arrows are all vile deeds of Satan. Continually
abstain from them, then, so that you may gain
salvation.2
Imam Malik ibn Anas rahimahullah presents an example in this regard
and then gives his verdict on it.
أن يعمد الرجل إلى الرجل قد ضلت راحلته أو دابته أو غلامه وثمن بذه
الأشياء خمسون دينار فيقول: أنا آخذبا منک بعشرين ديناراً فإن وجدبا
المبتاع ذبب من مال البائع بثلاثين ديناراً وإن لم يجدبا ذبب البائع منه
بعشرین ديناراً وبما لا يدريان كيف يكون حالهما في ذلك ولا يدريان
1 Ma'ārif al-Qur'ān, vol. 1, p. 532.
2 Sūrah al-Mā'idah, 5: 90.
493

أيضاً إذا وجدت تلك الضالة كيف توخذ وما حدث فيها من أمر الله مما
يكون فيه نقصها وزيادتها فهذا أعظم المخاطرة. (المدونة الكبرى: ٢٥٤/٣،
کتاب الغرر، دار الفكر)
A man has lost his camel, animal or slave. Their value is fifty dinars for
example. Another person goes to him and says: I am buying your lost
item for twenty dinars." If this person finds the lost item, the owner
would have suffered a loss of thirty dinars. If the buyer does not find
the lost item, the seller would have received twenty dinars for
nothing. At the time of the transaction, neither of them knows what is
going to happen. Will the lost item be found or not? And if it is found,
in what condition will it be? They also do not know if there was any
increase or decrease in the item [e.g. if its body weight increased or
decreased]. A transaction of this nature entails a lot of danger and it is
a serious deception.
The same thing is demonstrated in this example, i.e. a transaction in
which the consequences could be good or bad. This is not permissible
in the Shari'ah. The same can be said about insurance.
In short, an insurance company is an interest company. It is not
permissible to contribute money into it, nor is it permissible to insure
a masjid, madrasah, or any other building or property of an
organization. If an organization mistakenly did this, it must reclaim
only that amount which it contributed. It must never take the extra
amount.
Allāh ta'ālā knows best.
Motor vehicle and household insurance
Question
Is it permissible to insure a motor vehicle? For example, a person buys
a new car and insures it for the value at which he bought it. If it gets
stolen, the insurance company will pay its value. Also, if the car meets
in an accident, the insurance company will have it repaired.
Answer
The first type of insurance where the insurance company pays an
amount of money is totally haram. According to the Shari'ah, usury
and gambling are inevitable in it. The Qur'an and Hadith contain
prohibitions for both.
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If the insurance company does not pay an amount, and instead, has the
vehicle repaired in return for the monthly premiums, then there is
leeway for it. Nonetheless, caution demands that an agreement of this
nature should not be entered into. Although there is ignorance about
the recompense for the payment, it does not lead to dispute. Some
'ulama' say that this too is impermissible. No matter what, it entails
assistance from a company which deals in interest. This is why one
should abstain from such a transaction.
Hadrat Thanwī rahimahullāh writes:
When you consider the outer form of this agreement, it entails
gambling.
لأنه تعليق الملك على الخطر والمال فى الجانبين.
And when you consider its inner workings, then it is usury ... Both,
gambling and usury, are haram. This transaction is therefore
undoubtedly harām.1
Muftī Kifāyatullāh Sāhib rahimahullāh writes:
It is not permissible to insure shops, factories and buildings through
insurance companies. This is because insurance contains the elements
of gambling and usury; and both these are harām.2
Muftī Taqī 'Uthmānī Sāhib rahimahullāh writes:
The scholars concur unanimously that insurance contains gambling
and usury. It is gambling because on one side, there is a specified
payment while on the other side the fulfilment is unspecified. The
instalments which a person pays - all of them can be lost, and a person
can even receive more than what he paid. This is known as qimar
(gambling). It is usury because there is money in exchange for money,
and it is not equal. The client pays a lesser amount while he receives
more in return.3
Jadīd Fiqhī Masā'il:
Life-insurance and insurance of goods/possessions are fundamentally
unlawful because they contain the elements of usury and gambling.4
1 Imdād al-Fatāwā, vol. 3, p. 161.
2 Kifāyatul Muftī, vol. 8, p. 83.
3 Islām Aur Jadīd Ma'āshī Masā'il, vol. 7, p. 290.
4 Jadīd Fiqhī Masā'il, vol. 4, p. 124.
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Islāmī Fiqh:
Current day insurance schemes contain several evils such as usury,
gambling and so on. If you look at it morally and economically, then
usury and gambling devour human morality, benevolence and cultural
life as though they are weevils.1
Allāh ta'ālā knows best.
Mandatory insurance
Question
It is the practice of some companies to deduct a certain amount from
the salaries of their employees and to deposit it into a life insurance
fund. The company deducts this amount before the employee can
receive his salary. He has no choice in the matter as he is bound by the
rules and regulations of the company. When he passes away, his heirs
receive an astronomical amount which is far more that what had been
deducted from his salary. Is this amount lawful for the heirs? Also,
what is the ruling with regard to mandatory insurance?
Answer
Nowadays it is virtually impossible to get a job without insurance, or
to retain a job if a person already has one. Furthermore, when there
are unrests, Muslims suffer financial losses. As per government
regulations, life insurance has been made mandatory in different jobs.
Without it, one is either ineligible to obtain a job, or if he has, he
cannot maintain it. In a compelled situation like this, insurance of this
nature will be permitted. Some scholars have stated this in their legal
verdicts. At the same time, the person's heart must feel that this is a
wrong, and he must continue repenting and seeking forgiveness.
In the case where a person takes out a voluntary insurance, he may
only use the money which he contributed. It is not permissible for him
to take the additional amount. Instead, he must give it in charity
without the intention for reward. As for the case where the company
deducts an amount from the employee's salary without his choice, and
then he receives an additional amount; it is not usury. It is permissible
to use it.
1 Islāmī Figh, vol. 2, p. 360.
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Fatāwā Mahmūdīyyah:
Insurance contains the elements of gambling and usury - both of
which are haram. Insurance is also prohibited. Nonetheless, if a person
is living in a place where his life and property cannot be protected
without insurance, or he is compelled by the law to take out insurance;
then it will be permissible to take out an insurance.1
When it is difficult to continue life without a business, factory or shop;
and there is a legal requirement, the person will be classified as
excused to take out insurance. At the same time, whatever amount he
receives over and above his actual contribution must be given in
charity to the poor. He must not use it for himself.2
Jadīd Fiqhī Masā'il:
All forms of insurance which are classified as mandatory by the
government will be permissible. For example, in the case of import
and export when engaged in trade with foreign companies. The person
has no choice in the matter but to have the goods insured.3
Imdād al-Fatāwā:
To deduct a certain amount from a person's salary and for him to
receive it in lump-sum, then whatever he receives - even if it is in the
name of usury - is permissible. In reality, it is not interest because the
percentage of the salary which the employee did not receive was not
included in his ownership. The additional amount was not given to
him from the benefits of the amount which he owned. Rather, it is an
initial donation which the government - in its terminology refers to as
interest ...
Jadīd Fiqhī Mabahith:
Although the government refers to the additional amount as interest,
the definition of interest will only apply if we personally deposit some
money and receive an additional amount on it. In this case, the
government deducted an amount of its own accord without our
permission, and it is still not in our possession and ownership. It then
1 Fatāwā Mahmūdīyyah, vol. 16, p. 387.
2 Fatāwā Mahmūdīyyah, vol. 16, p. 390.
3 Jadīd Fiqhī Masā'il, vol. 4, p. 124.
4 Imdād al-Fatāwā, vol. 3, p. 149.
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adds to that amount. Therefore, whatever additions are made to it will
not be made to what we own. Rather, it will be an initial donation.1
Nizām al-Fatāwā:
The money which the government deducts forcefully in the name of
insurance and whatever additional amount is received - all of it is not
unlawful. We may accept it and use it for ourselves.2
Further reading: Jadīd Fiqhī Mabāhith, vol. 4, p. 237; Fatāwā 'Uthmānī, vol.
3, p. 314; Jadīd Fiqhī Masā'il, vol. 1, p. 435; Ahsan al-Fatāwā, vol. 7, p. 25.
Observe a few general proofs on the permissibility of mandatory
insurance.
A major principle of the Shari'ah is ease, and the removal of difficulty.
قال الله تعالى: يريد الله بكم اليسر ولا يريد بكم العسر. (سورة البقرة،
الآية: ١٨٥)
وقال تعالى: وما جعل عليكم فى الدين من حرج. (سورة الحج، الآية: ٧٨)
The following are some of the unanimously accepted principles of
jurisprudence:
المشقة تجلب التيسير. (الأشباه والنظائر: ٢٢٦/١)
الضرورات تبيح المحظورات. (شرح المجلة، وقواعد الفقه، والاشباه: ٢٥١/١)
الحاجة تنزل منزلة الضرورة عامة أو خاصة. (الأشباه والنظائر: ٢٦٧/١)
وما حرم لذاته يباح للضرورة. (تفسير المنار لمحمد رشيد بن على رضاء ٢٢٣/٦)
وما حرم سداً لذريعة يباح للحاجة. (تفسير المنار لمحمد رشيد بن على رضا،
٢٢٣/٦)
إذا ضاق الأمر اتسع. (قواعد الفقه، ص ٦٢)
Allāh ta'ālā knows best.
1 Jadīd Fiqhī Mabāhith, vol. 4, p. 485.
2 Nizām al-Fatāwā, vol. 2, p. 236.
498