Problem # 3 It has been understood that when the debtor repays his Prompt debt, the creditor is bound to receive it. If he declines, the judge shall compel him if the debtor files a petition with him. If he is not able to compel him, he shall summon him, enable him in way that it may be in his possession and domination according to the usual practice, and thereby the debtor shall be released from his liability. If, subsequently, it is destroyed, the debtor shall not be held responsible for it. If it is not possible, the debtor may deliver it to the judge, and thereby the debtor shall be released from his obligation. Whether the judge is bound to accept it. There is some hesitation and difficulty in it. In case the judge is not available, whether the debtor should specify it as a special property and leave it? There is hesitation and difficulty in it. If the creditor is not present, and it is not possible to send the repayment to him, and the debtor intends to be released from his obligation, he shall deliver it to the judge, if he is there. Whether the judge is bound to accept it, there is difficulty in it as in the preceding case. In case the judge is not available, it shall remain in his liability until he conveys it to the creditor, or one who stands in his place (i.e. his representative).

Problem # 4 A person is allowed to repay voluntarily the debt of another, alive or dead, and thereby the debtor shall be released from his obligation, even if it was done without his permission, or even despite his preclusion, and the creditor is bound to accept it.

Problem # 5 A debt is not specified in what the debtor specifies it, and it does not become the ownership of the creditor unless he takes its delivery. It has already been mentioned under the preceding third Problem that there is hesitation and difficulty in its specification by the debtor in case the creditor declines to accept it. If a person owes a Dirham, and he takes out a Dirham from his pocket to pay it to the creditor in repayment of the debt on him, but it is lost before it reaches in the possession of the creditor, it shall be considered a property of the debtor, and he shall be under the obligation to repay it as before.

Problem # 6 A deferred debt becomes a prompt one by the death of the debtor before the expiry of its term, but not by the death of the creditor, so that if the latter dies, his heirs shall have to wait till the maturity of its term. If a dower is deferred for payment until a specified period, and the husband dies before its maturity, the wife shall be entitled to demand it after his death, contrary to the case when the wife dies, her heirs shall not be entitled to demand it before its maturity. A divorce is not affiliated with the death of a husband, so that if the husband has divorced his wife, her deferred dower shall remain intact. Similarly, the interdiction of a debtor on account of insolvency is not affiliated with his death. So if he owed some prompt and deferred debts, the property of the deceased shall be distributed among the creditors of the prompt debts, but not those of the deferred ones.

Problem # 7 According to the stronger opinion, a debt cannot be sold for another debt in case both were deferred ones, even if their term has matured, and, according to the more cautious opinion, even in other cases, as when the things exchanged were both debts before the sale, if a person owes from another some foodstuff as a quantity of wheat, while he owes to another some other foodstuff as a quantity of barley, so he sells the barley for wheat. Or if a person owes from another some foodstuff, while another person owes from him some foodstuff, so he sells what he owes from another for what another owes from him. Or when one of two persons owes some foodstuff from another and the other owes some foodstuff from another, so the former sells it to the other. If both of the things exchanged were not debts before sale, and if one or both of them have become debts due to the sale, as when a person sells his property to be owed by another for the property owed by him, suppose, as a debt, then it has several sides and cases, that cannot be explained in this brief account.

Problem # 8 It is allowed to change a deferred debt into a prompt one with a decrease by mutual consent, and this is what is called “Nuzul” in the jargon of the businessmen of today. It is, however, neither allowed to change a prompt debt into a deferred one, nor to extend the maturity date of a deferred debt, by some additional payment.

Problem # 9 It is not allowed to divide a debt. So if there is a joint debt of two persons owed to several persons, as they sell a property held jointly by them to several people or the propositus of both of them had a debt owed to several persons, so both of them have inherited it, and, after equalization, they give over the debt owed by some of them to one of them and what is owed by others to the other, it shall not be valid.

Of course, apparently, as explained under the Section of Partnership, if two persons have a joint debt owed by a single person, it is allowed for one of them to settle the debt of his share with him. That shall belong to him, while the share of the other shall remain payable by the debtor. This shall not be a division of the debt.

Problem # 10 A debtor is bound to endeavor to repay the debt by all means at the maturity of its term and on demand by the creditor, even if he has to dispose of his commercial articles, necessities of life, real states, demanding repayment of the debt due to him, rent of his properties, etc. Is he bound to do some job suitable for his position keeping in view his dignity and honour? There are two alternatives, rather opinions, in this regard, the more cautious being in favour of the reply in the affirmative, particularly in case there is no discomfort for him, and it is his profession; rather, in such case, its obligation shall be strong.

Of course, the sale of his living house, his garments that he needs, even if mean for decoration, and beast of burden when it is his domestic animal and is needed by him, are to be exempted; rather, even his household goods like his bed, sheet covers and quilts, utensils and vessels for eating, drinking and cooking, even if required for feasts and guests keeping view in all of them the extent they are needed according to his position and honour, so that if they are sold he shall fall into penury, hardship, disgrace and inferiority. They are all among the exceptions, but not all are mentioned here; rather, it is not far from including among them the scholarly books for his family according to his needs in view of his position and rank.

Problem # 11 If his living house is more than his need, he shall retain as much as he needs for dwelling and dispose of what is in excess, or may dispose it of and purchase another cheaper one according to his position. If he has several houses needed by him for living purpose, he shall not dispose of any of them. The same is the case with beasts of burden, garments, etc.

Problem # 12 If he has a house donated by endowment that is sufficient for his living and living, in it is not a source of disgrace and insult for him, and he has also another house owned by him, then it is more cautious for him to dispose of the house owned by him.

Problem # 13 A living house cannot be disposed of in repayment of a debt as long as the debtor is alive. If he dies, and has not left anything other than the living house, or has left something, but the debt comprehends the whole house or almost comprehends it, it shall be disposed and taken possession of.

Problem # 14 The meaning of exempting the house or the like from the repayment of the debt is that neither the debtor shall be compelled to dispose it of for the repayment of the debt nor shall he be bound to do so.

If however he agrees to do so for the settlement of the debt, the creditor shall be allowed to take its possession.

Of course, the creditor should not make the debtor agree to dispose of his living house and should not be a cause for its sale, even if the debtor should agree to it.

It has been related in a report by ‘Uthman b. Ziyãd that he has said: I said to (Imam) Abu Abdillãh (Jafar al-Sadiq, Peace be upon him.): I have a debt due to a man, and he intends to dispose it of for the settlement of my debt. Abü Adillãh replied: I give you in Allah’s refuge that you are throwing him out of the shadow of his head” (i.e. you are depriving the debtor of his shelter). Rather caution and godliness also require it after the story of lbn Abi Umayr, Allah’s Favour be upon him.

Problem # 15 If the debtor has some necessities of life, commercial articles or real estate in excess to the exceptions that cannot be sold except on their lower prices, he shall be bound to dispose them of for the repayment of the debt at the maturity of its term and on demand by the creditor, and he is not allowed to delay and wait until he may dispose them of at their due price. Of course, if what he is selling at is extremely low price for it to the extent that it is deemed to be wastage of the article, and spoiling it, it is not far from being not obligatory to dispose it of.

Problem # 16 As it is not obligatory on an incapable debtor to repay the debt, the creditor is also forbidden to press him by demanding him to settle the debt. Rather, it is obligatory on him to wait till the debtor returns to easy circumstances.

Problem # 17 Delaying the repayment of the debt by the debtor despite capability to do so is disobedience (to Allah). Rather, even when he is incapable to repay it, her must have intention to repay it whenever he becomes capable to do it.

Chapter Two - Loan

Loan (or Qard) means making another owner of one’s property against a guarantee to the effect that the latter shall pay it, its equivalent or its price. The person who gives loan is called ‘Muqrid “(lender), while the one receiving it “Muqtarid” or “Mustaqrid”.

Problem # 1 It is disapproved to borrow when there is no need, but its disapproval is diminished when there is need. As much as the need diminishes, so much does the disapproval increase, and as much as the need increases, so much does the disapproved decrease until it disappears. Rather, sometimes it is obligatory (to borrow), when it becomes indispensable for something imperative as the protection of one’s life, honour, or the like. It is more cautious for a person not to borrow who has neither means sufficient to repay his debt nor any hope to obtain such means, except in a dire need or when the lender has knowledge about his position.

Problem # 2 Giving loan is among acts strongly recommended particularly to the needy person as it fulfils his need and removes his adversity. So it has been reported from the Holy Prophet, May Allah send His Blessings on him and his Progeny: “Whoever gives loan to his Muslim brother for each Dirhams he lends he shall receive Allah’s Favour equal to the Mountain Uhud and virtues equivalent to Mount Sinã’. If he treats the borrower with leniency in demanding its repayment, he shall pass from the Sirat like a dazzling and shining lightning without any account and any torment. If a Muslim brother complains before another (of his adverse circumstances), and he fails to give him loan, Allah, the Exalted and Majestic, shall forbid for him Paradise on the day when those doing good deeds are to be rewarded.”

Problem # 3 A Loan is a contract that requires a Declaration, as saying: I have given loan to you”, or what conveys that sense, and Acceptance expressing consent. It is not a condition to express it in Arabic language. Rather it can be expressed in any language. Rather Mu’ãtät is also allowed in it by delivering the thing itself (by one party), and taking its delivery (by the other party) with this intention. In the lender and the borrower the same conditions are required, as required in the two parties to other contracts, namely, majority, sanity, intention, free will, etc.

Problem # 4 It is a condition that the asset must be a real one, and. according to the more cautious opinion, capable of being owned. So it is valid to give on loan neither a debt or usufruct, nor anything that cannot be lawfully owned, as wine and a pig. There is hesitation in the validity of a total loan when the contract is entered into on it but only a part of it is delivered as the whole. In case of similar things, it is a condition that it must be something whose description and characteristics may be specified when they differ with the difference of price and attraction. As regards the non-fungibles, as sheep and jewels, it is not far from there being no condition of specifying their characteristics; rather it is sufficient to know their value at the time of loan, even if it is not possible to register their characteristics.

Problem # 5 It is a condition that a contract of loan must take place on a definite object. It is not valid to loan an ambiguous thing, as one of these two things”, and that its amount must be ascertained through measurement in case of a thing that can be measured, by weight in case of things that can be weighed and by counting in case of things that can be counted.

It is not valid to loan a heap of foodstuff by estimate. If it is measured by particular measure and is filled in a particular vessel other than the usual measure, or is weighed by a particular stone other than the one usual among the people, it is not far from being sufficient, but it is more cautious to be otherwise.

Problem # 6 It is a condition in the validity of a loan that there must be giving and taking of delivery. So the borrower does not become the owner of the loaned thing except after having received its delivery. It does not depend on mere occupation.

Problem # 7 According to the stronger opinion, Loan is a binding contract. So the lender is not entitled to rescind it and withdraw the thing lent if it exists. So also the borrower is also not entitled to revoke it, and return it in case it is one of the non-fungibles. Of course, the lender is entitle, to wait and demand the repayment of the loan, even if it is before the fulfillment of his purpose or expiry of the period in which it is possible.

Problem # 8 If the lent commodity is of the type that can be substituted, as wheat, barley, gold or silver, the borrower shall be liable to repay its substitute. To this category are affiliated what is manufactured in the modern factories, such as crystal and china wares, and so are the rolls of cloth, according to the opinion closer to the traditional authority. If it belongs to the category of things that are valued, like sheep and the like, the borrower shall be liable to pay its price. As regards the question whether regard shall be had to its price as at the time it was lent and delivered or at the time of its repayment, there are two alternatives, the closer to the traditional authority being the former, though it is more cautious to reach a compromise and mutual consent with regard to the difference in the two prices.

Problem # 9 It is not allowed to stipulate excess (in payment) so that one may lend something on the condition that the borrower shall repay it in excess than what he had borrowed, regardless whether they have stipulated it expressly or implicitly in a way that the loan be based on it. This is the prohibited Ribä’ (or Usury) of Loan that has been strongly condemned in the reports that have come down, there being no difference whether the surplus is in the form of a real asset as ten Dirhams for twelve Dirhams, or it may be in the form of labor, as stitching a garment for the lender, or it may be some usufruct or benefit as the utilization of the commodity mortgaged with the lender, it may be in the form of quality so that he may lend him broken Dirhams on the condition of being paid unbroken Dirhams. So also it makes no difference whether the usuriously loaned commodity can be measured or weighed or is one that can be counted, as almonds or eggs.

Problem # 10 If a person lends something to another on the condition that the latter shall sell for a price lower than its actual price or shall give it on rent lower than its actual rent, it shall be deemed to be included in the stipulation for surplus. If the borrower sells something to the lender on a lower price and stipulates that the lender shall give him loan of a definite amount, there shall be objection in it.

Problem # 11 A surplus is prohibited when stipulated for, but there is no objection if it is without a stipulation. Rather it is agreeable for the borrower (to pay something in extra) as it is a better way of repaying the loan, and the best people are those who repay their loan in a better way. Rather it is allowed to be given as a gift or present, if it were for the sake of letting the lender realize that he is one making the best repayment, and so he may give him loan whenever he needs a loan, or the loan were for the sake of being benefited by the borrower in his being one making the best repayment. And he compensates one who does good to him by way of a better return so that had it not been so, he would not have given him loan.

Of course, it is disapproved for the lender to accept the surplus, particularly when his giving loan was for its sake. Rather it is approved that when the borrower gives the lender something as a present, or the like, the lender must consider it to be towards the repayment of his debt in the sense that he must adjust it against the amount of loan

Problem # 12 It is prohibited for the lender to stipulate the surplus by the borrower. There is no objection if the borrower makes a stipulation, for instance, to be lent ten Dirhams on the condition that he would pay eight Dirhams, or that the lender shall lend the borrower unbroken Dirhams on the condition that the borrower shall pay him broken Dirhams.

As regards the charging or payment of excess in the bills of exchange called ‘Sa’f-al Barat’ among the businessmen, and according to what is said about it, their sale and purchase of bills of exchange depends on it, if some Dirhams are given, and a bill of exchange is taken for a lesser amount, there shall be no objection But if a lesser amount is given and the bill of exchange is of a higher amount, it shall also fall under a Ribã (transaction).

Problem # 13 A loan with a condition for surplus is valid, but the condition is void and prohibited. So it is lawful to borrow from one who does not give loan but on a condition of surplus, like a Bank, etc. without accepting the condition in a serious way, and accepting the loan only. It is not prohibited to declare non-seriously to accept the condition and actual intention, the loan shall be valid but the condition shall be void without the commission of a prohibited act by him.

Problem 14 If the commodity borrowed is of the type that can be substituted, like Dirhams and Dinars or wheat and barley, it can be settled and repaid by giving what is identical with it in its attributes, regardless whether its rate of exchange has remained as it was at the time of lending it, or it has gone up or has come down. This is the settlement that does not depend on mutual consent. So the lender is entitled to demand the repayment of his loan, and he is not entitled to decline, even if its exchange rate has gone extremely up. So also the borrower has to deliver it, and the lender cannot decline to take its delivery, even if its exchange rate has gone extremely down. The repayment may be made in the form of its price instead of the commodity, so that the borrower may pay, for instance, Dinars in place of Dirham, or vice versa. But this depends on mutual consent. So if a person gives Diners in place of Dirham, the lender may decline to receive them, even if they were equal in value, rather even if the Dinars were higher in value, in the same way that if the lender wants the payment to be made in Dinars, the borrower shall be entitled to decline, even if the Dinars were cheaper.

If it were non-fungible, it has already been mentioned that the borrower shall be liable to pay its price, and that means to be made in the currency of that time. Its repayment does not depend on mutual consent if it is made in the currency of the time. It may also be repaid in a commodity of that value other than in cash, but it depends on the mutual consent of the parties. If the commodity lent is itself existent, and the borrower or the lender intends the repayment of the loan by delivering that commodity itself, then according to the stronger opinion, it is allowed to be declined.

Problem # 15 In case of a loan in which payment of substitute is allowed, the lender may stipulate that the repayment shall be made in a kind other than what is lent. It is binding on him on the condition that both of them should be equal in price, or what has been stipulated for is lower in price than the one lent.

Problem # 16 According to the stronger opinion, if the date of repayment is stipulated in a contract of loan, it shall be valid, and its compliance shall be binding, and the lender shall not be entitled to demand its repayment before the expiry of its term.

Problem # 17 If the lender stipulates that the repayment and delivery of the loan must be made in a definite place, it shall be valid, and binding, even if there is some expenditure to be incurred in its conveyance. If, however, the lender demands it to be made in a place other than the stipulated one, the borrower shall not be bound to comply, the way as if the borrower repays it in a place other than the stipulated one, the lender shall not be bound to accept it. If the contract is without any condition, and no place of delivery is specified in it, and the lender demands its repayment to be made at the place where the loan was given the borrower shall be bound to comply, and if the borrower delivers it there, the lender shall have to accept it. In case otherwise, it is more cautious for the borrower to comply provided that it would not cause any harm (to him) or would not incur any expenditure if it is demanded by the lender, as also it is more cautious for the lender to accept it in the absence of any harm or extra expenditure. In case either of the things is necessary, their mutual consent shall be required.

Problem # 18 It is allowed in a Qard or Loan to stipulate giving (Something in) mortgage, guarantee or surety, or incorporate any lawful condition that may not be beneficial for the lender, even if it is desirable.

Problem # 19 If a person borrows Dirhams, and subsequently they are declared out of currency by the Government, and issues some other Dirhams, the borrower shall not be bound to make the repayment except in the former Dirhams.

Of course, in case of the currency notes current in modern times, if they cease to have currency value, then apparently the borrower shall be bound to make the repayment current Dirhams and Dinars.

Indeed, if it is supposed that the loan is paid in the form of special cheques. Saying: “I have given on loan these papers called (currency) notes,’ then their position shall be similar to that of Dirhams (or legal tender).

Similarly, the same shall be the position in case of the transactions and seals on cheques.