L A LLAMADA DE E SPAÑA O EL VIAJE DE LA ILUSIÓN

The term dayn has been mentioned earlier as a personal obligation, and is a general term used to indicate an outstanding debt without regard to its source. The term qarḍ also refers to an outstanding debt, although it is restricted to debts arising from loans and not credit transactions or forward sales, and is therefore a specific type of dayn.33

2.4.1 Qarḍ

The gratuitous loan is the philanthropic Qurʾānic norm and usury is its diametric opposite. This dichotomy demands that the two be analytically incongruent and systematically differentiated. However, in real terms, it appears that a loan could easily be expressed as an exchange of currency (ṣarf) of equal quantities of the same genus with a time delay; which technically is ribā al-nasāʾa. In order to distinguish between the two, it would be impossible

31 _{al-Ṭaḥāwī, Sharḥ Maʿānī al-Āthār, vol. 3, 295-99.} 32

al-Shaybānī, The Muwatta, 333-4; idem, al-Ḥujja, vol. 2, 547-550; al-Kāsānī, Badāʾiʿ, vol.7, 86.

33 _{Najm al-Dīn Abū Ḥafṣ ʿUmar al-Nasafī, Ṭilbat al-Ṭalaba fī Isṭilāḥāt al-Fiqhiyya (Beirut: Dār al-Kutub al-}

63 to prohibit any delay from a loan, as that would amount to a repayment in the contractual session in which the money is loaned. The answer proffered by some of the early jurists was to regard the loan as due immediately although its repayment is inevitably delayed. This means that no specific time limit is acceptable and even if a time limit is agreed by the lender and the borrower, it is a priori an ineffective clause. Ibrāhīm al-Nakhaʿī, is reported to have said ‗a loan is due immediately [ḥāll], even if [the parties agree] to a time‘.34

The Ḥanafīs, following their Kufan predecessor, give the same ruling.35 al-Jaṣṣāṣ, in trying to show the hermeneutical basis of this ruling, says that ‗what indicates the invalidity of assigning a time [to the loan] is the saying of the Prophet (pbuh) ‗surely ribā is only in delay‘36

and he did not differentiate between sales and loans and hence it [applies] to both‘37 The Ḥanafīs find agreement in this point with the Shāfiʿīs and also, in one narration, from Aḥmad, although the opposite has also been reported from him. The Mālikīs, and notably the later Ḥanbalīs Ibn Taymiyya and Ibn al-Qayyim, do permit a time delay on loans.38

Rafīq Yūnus criticises the previous explanations for why there should be no time limits on loans, noting that the real distinction is that loans are philanthropic whereas sales are commercial.39 Yūnus, however, fails to develop this into a juridical framework which means that the intentions of the lender and the borrower become critical in determining whether the

34 _{Ibn Abī Shayba, al-Muṣannaf, vol. 4, 324. This is also the opinion of al-Awzāʿī, see ʿAbdullah ibn}

Muḥammad al-ʿUmrānī, al-Manfaʿa fī al-Qarḍ (Riyadh: Dār Ibn al-Jawzī, (1427 AH), 180.

35

‗al-Qard fa inna taʾjīlahū lā yaṣiḥḥ‘, see al- Qudūrī, al-Mukhtaṣar, 73; al-Ṭaḥāwī, Mukhtaṣar, 84; al-Sarakhsī,

al-Mabsūṭ, vol. 7, book 14, 42. 36 _{‗Innamā al-ribā fī al-nasīʾa‘.} 37 _{al-Jaṣṣāṣ, Aḥkām al-Qurʾān, 468.} 38

For other scholars who also permit this, see al-Miṣrī, al-Ribā wa al-Ḥasm al-Zamanī, 37; idem, al-Jāmiʿ, 227- 232.

64 exchange is commercial or altruistic.40 In the work of al-Sarakhsī, however, we find that not only is this point noted but that it finds expression in a systematic interpretation of the loan.

Islamic jurisprudence distinguishes between commodate loans and non-commodate loans; the former are known as ʿāriya and the latter as qarḍ. The difference being that in ʿāriya a specific good, a ʿayn is given to a borrower who benefits from its usufruct. The borrower, in turn, must return the exact same good once he has finished with it. In qarḍ loans, the usufruct can only be obtained through the consumption of the goods, and hence the borrower is only obliged to return an equivalent.41 The question becomes that if the qarḍ is not a specific good then does this mean that it is a dayn? If the answer is in the affirmative, it implies that qarḍ is a contract of a dayn for a dayn with a delay which is exactly the same as a currency exchange with a delay. To overcome this problem, the Ḥanafīs grant the qarḍ a dual nature; in its outward form (ṣūra) it is regarded as a dayn, whereas in its juridical designation (fī al-ḥukm) it is a ʿayn.42 By considering it outwardly as a dayn recognises the fact that what is returned in reality, is not the actual item loaned, but rather, its equivalent. This is then regarded jurdically, to be the very item that was loaned (ʿayn al-maqbūḍ).43

Its designation as an ʿayn is important in that it links the qarḍ into the Ḥanafī jurisprudential framework in another way. According to the Ḥanafīs only a dayn can accommodate a time delay, as opposed to a ʿayn which must be delivered immediately following the conclusion of a contract.44 The qarḍ, now designated as a ʿayn, cannot therefore by definition, like the

40

This is not however an unusual opinion, as it finds expression in the work of Ibn al-Qayyim. See Ibn al- Qayyim, Iʿlām al-Muwaqqiʿīn, 537-38, 543-44,

41 _{al-Sarakhsī, al-Mabsūṭ, vol. 7, book 14, 43; Nyazee, The Concept of Ribā, 49.} 42 _{al-Sarakhsī, al-Mabsūṭ, vol. 7, book 14, 43; al-Nasafī, Ṭilbat al-Ṭalaba, 255.} 43

al-Sarakhsī, al-Mabsūṭ, vol. 7, book 14, 38, 42.

44 _{‗Wa al-ajal lā yathbut illā fī al-duyūn‘, see al-Sarakhsī, al-Mabsūṭ, vol. 6, book 12, 167; al-Kāsānī, Badāʾiʿ,}

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ʿāriya,have a time limit.45 Although earlier jurists, as mentioned above, had the opinion that loans are necessarily free from time limits, the jurisprudential re-structuring of the qarḍ by the Ḥanafīs means that this rule is now neatly tied into their theoretical legal framework.

To conclude, the legal analysis of the Ḥanafīs focuses on drawing substantive jurisprudential distinctions between qarḍ and a currency exchange with a time delay. The result is that instead of resigning the matter to the intention of the two contracting parties, two points of divergence are noted:

1. Qarḍ is a transaction which does not admit of a time delay and is hence due at the creditor‘s immediate discretion.

2. Money given in a qarḍ is regarded juridically to be a ʿayn as opposed to money owed from contracts of commercial exchange which are termed dayn.

2.4.2 Dayn – Ḍaʿ wa Taʿajjal

One of the conditions for a valid credit sale is that the credit must have a time limit which is stipulated from the outset.46 Although the jurists unanimously permit the deferred price to be higher than the cash price, they do not infer that the addition is in lieu of the time gap.47 The deferment is merely a condition which binds both parties, giving respite to the buyer and a price increase to the seller. The issue at hand is whether the creditor and debtor can agree, before the expiry of the time period, to reduce the debt in return for immediate repayment.48 This practice is known as ḍaʿ wa taʿajjal, i.e. to reduce (the debt) and hasten (the payment). This issue has been contentious from the very beginning of Islamic jurisprudence with the

45 _{Ibid, 143-4.}

46 _{al-Qudūrī, al-Mukhtaṣar, 65.}

47 _{al-Zuḥaylī, al-Fiqh al-Islāmī, vol. 5, 3461.} 48

After the time period has expired, it is allowed by way of conciliation (ṣulḥ). See Abū Zayd, Fiqh al-Ribā, 397. For the usage of this transaction in Islamic finance, see Usmani, An Introduction of Islamic Finance, 141- 43.

66 earliest authorities divided over its legitimacy. From the companions Ibn ʿAbbās (ra) allowed it, whereas ʿUmar (ra), his son ʿAbdullah (ra) and Zayd ibn Thābit (ra) all prohibit it.49 Among the four schools there seems to be unanimity over its prohibition, although there is a dissenting narration from Aḥmad.50 Notably, Ibrāhīm al-Nakhaʿī allowed it, as did the later Ḥanbalīs, Ibn Taymiyya and Ibn al-Qayyim.

al-Shaybānī argues that this practice is prohibited due to the disparity between the debt and the settlement amount. He says ‗it is as though he is selling a small [amount] immediately for a large[r amount] deferred‘.51

This means that the transaction is interpreted as though it contains both ribā al-faḍl and ribā al-nasāʾa. Later, al-Jaṣṣāṣ explains in clear terms the underlying reason for the prohibition:

The reduction has only been made in lieu of the time, and this is the meaning of ribā which Allah the

exalted has clearly proscribed. There is no disagreement that if a thousand dirhams were due

immediately and he said to him [i.e. the creditor] ‗give me a deferment and I will increase you in it by a

hundred‘, that it is not permissible, because the hundred is a compensation for the time. Likewise,

reduction has the [same] meaning as increase because he has made it a countervalue for time.52

As was noted earlier, the commoditisation of time is proscribed as an element in the Qurʾānic prohibition of ribā.53 Ibn al-Qayyim argues however, that ḍaʿ wa taʿajjal is the exact opposite of ribā; the latter is an increase in a debt for an increase in delay, whereas the former is a

decrease in the debt for a decrease in the delay and such reductions represent creditor

empathy rather than exploitation.54

49 _{al-Shaybānī, The Muwatta, 337.}

50 _{There is also a narration that Shāfīʿī allowed it, but this is only recorded in the works of the Mālikīs and his}

own work seems to suggest the opposite. See Abū Zayd, Fiqh al-Ribā, 401-2.

51 _{al-Shaybānī, The Muwatta, 337.} 52 _{al-Jaṣṣāṣ, Aḥkām al-Qurʾān, 467.}

53 _{Also see Abu Umar Faruq Ahmad and M. Kabir Hassan, ―The Time Value of Money Concept in Islamic}

Finance,‖ The American Journal of Islamic Social Sciences 23, no. 1 (2006): 66-89.

54 _{A similar statement is recorded from the companion Ibn ʿAbbās (ra), see Abū Zayd, Fiqh al-Ribā, 403; and for}

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