The construction of the ‘aqd as consensual transfer of properties

Any human action finds its legal status in the rule (mahkum bihi); next to its moral classification (the al-ahkdm al-khamsa of the forum internum), the sar‘t act is judged in its performance (forum externum; see section 3.3.2 of this chapter) as part of divine creation.

In fact, if the relevance of the intention (niyya) varies in the assessment of worldly transactions (mu‘dmaldt) from the subjectivism of Malikis and Hanbalis to the objectivism of Safi‘is and Hanafis, the way of considering the contract in Muslim fiqh shows some deep connotations of meaning in the construction of the ‘legal reality’ of Islam, in the intersection between divine creation and human agency, which is common to all the madhdhib in their non-identity with Western law-religion. Maintaining the metaphor of the city, one may think that the ‘material construction’ of its ‘buildings’ occurs through some tangible elements, each necessary for the valid conclusion of the contrac­tual relation between the parties; and namely, the external expression (stghah) of the intentions of the parties within the contractual session (majlis) (sec­tion 3.5.1); and the valid manifestation of an offer (ijdb) and a convergent acceptance (qabul) for an agreement (tarddi) to be reached (section 3.5.2). Furthermore, while the contractual building lies on the ‘ground’ of its subject matter, its ‘bricks’ are properties (amwdl) whose type affects the rules to be applied for the stability of the construction (section 3.5.3); last but not least, fundamental principles to keep the ‘equilibrium’ of the building - namely, the prohibitions of ribd,gharar and maysir (section 3.5.4) - must be met.

3.5.1. Expression (sighah), verbalism, and the unity of negotiations (majlis al- ‘aqd)

For the contract to exist, the niyya finds its material outcome in the external expression, an utterance (stghah) of the intent.

For the manifestation of the intention any form (sura) is valid. The lack of formalism is a peculiar aspect of Muslim fiqh, which has never fixed formal procedures to enter the contract (such as the Roman stipulatio or the English covenant). While fiqh tends to insert commercial transactions into a list of nominate contracts, at the same time, it avoids formalism nearly entirely.²⁰ This aspect, according to Frank Vogel, ‘is a particularly striking result sociologi­cally, because all legal systems were once supposed to evolve from formalism toward abstract obligation, reaching the latter only at advanced stages’ (2006, pp. 31-32). This does not apply, however, to matters for which the Law asks for specific formulae (words, gestures...), such as marriage (nikdh), repudia­tion (faldq), or in the case of acts of worship (‘ibadat).

At the same time, Vogel notes how there is ‘a covert sense in which, in sev­eral schools at least, formalism re-enters. This results from scholars’ adoption of a certain “objective” approach to the interpretation of the declarations of the parties. The classical and extreme statement is that of al-Shafi‘i, who claims to give legal judgements only by what is apparent, and never by what is hid­den’ (ibidem, p. 32). The objective approach of the Safi‘is (and the Hanafis) in dealing with the psychological formation of the contract has been previously discussed, in opposition to the subjectivism of the Malikis and the Hanbalis. In fact, this is an aspect that differs from the need for specific forms to make the agreement enforceable; the lack of formalism appears to be a common element for all the schools, since no specific sighah is required to make the ‘aqd enforceable (the objective approach of the Safi‘is and Hanafis refers to the interpretation of the declaration, not to the need for specific formulae in Islamic contract law).

There are, indeed, two other elements that may suggest a subtle formalism, and which deserve further attention to understand the rationales of the ‘aqd in relation to Islamic din as Muslim bios: 1) the preference given to oral contracts with respect to written agreements or contracts concluded by performance (despite the general recognition that written documents correspond to oral declaration, al-kitdba ka-l-hitab) - a tendency that Chehata describes under the label of ‘verbalism;’ 2) and the need for a unique session for the validity of the contract (majlis al-‘aqd).

1) With regard to the idea of ‘verbalism,’ Chehata remarks how in Muslim fiqh, despite the lack of any need for special solemnities (in form of ges­tures, rituals...),

words [must be...] pronounced. There is a special formalism that we call “verbalism”. This is a memory of the ancient magical might of the verb, of the ritual word that obliges. It is the sigah. This sigah may have different forms or sura, but its existence is necessary. The intention that is expressed through other means, such as the movement of the head, will not oblige.... The written document itself does not oblige without the pronunciation of the words.

(Chehata, 1969, p. 110; my translation)

Although Chehata relates ‘verbalism’ to the power of the words, no ‘ritual­ism’ exists in fiqh contract law; words ‘are necessary only as expressions of the internal will. They do not have any own inherent power, like in ancient Roman law’ (Linant de Bellefonds, 1965, p. 124; my translation). If, according to Zysow, ‘[t]he basis for requiring that contracts be formed by a verbal exchange of offer and acceptance is not entirely clear’ (1985-86, p. 70), an interpreta­tion of verbalism may be advanced in relation to the centrality of the Word in the acoustic space of Islam. As seen in Chapter 2, the action of the believer becomes a materialisation of the divine Word in his agency:

the divine law is a manifestation of the divine Word.

(Stelzer, 2008, p. 169)

If the ethical nature of the action is grounded on the Word, verbalism, in the material occurrence of the contract, re-presents the divine will by echoing the Law through human (verbal) words. There is an additional element to be taken into consideration here when looking at the ‘aqd as manifestation of Islamic din. Verbalism requires the sentences to be expressed in the past or present tense; the future tense does not determine the formulation of a valid contract: ‘according to the texts, the past tense obliges without the need for consider­ing the intention. This intention will be investigated in the case of use of the present tense’ (Chehata, 1969, p. 111, my translation; on the matter, see also Linant de Bellefonds, 1965, pp. 123-134). With regard to the Hanafi madh- hab, al-Kasani remarks how

[t]he present-tense form [of a contract of sale] is that the seller says to the buyer “I sell this thing to you for such and such [an amount]” and intends [with this] an offer of contract (nawd al-ijdb) and the buyer says... “I buy this thing from you for such and such [an amount]” and intends [with this] an offer of contract (nawd ijdb)... this satisfies the requirements [of a valid contract] (yatimmu al-rukn wa yan‘aqidu), however we consider the intention (al-niyya) here.

(Kasani, Kitdb Baddial-Sand’il, quoted in Powers, 2006 p. 109)

The passage is significant for three reasons. First, al-Kasani refers to a double­offer (ijdb) instead of an offer plus acceptance to describe the contract of sale, a point which will be further discussed in the next section (3.5.2); second, he explicitly refers to the present-tense form; third, he underlines the need to investigate the niyya, which is generally superfluous for the Hanafis.

a vision of God acting instantaneously in the world as the sole true cause [see Chapter 2]... also proved akin to Arabic grammar, which lacks genuine verbs for “to be” and “to become”. Neither does Arabic employ the tenses of past, present, and future. Instead, it uses verbal aspects of complete and incomplete, marking the degree to which an action has been realized or it yet to be realized without distinguishing precisely between present and future.

(Bowering, 1997, p. 60)

Arabic grammar distinguishes between the perfect verb (al-mddi), which refers to a complete action in the past, and the imperfect verb (al-muddrifi, which describes an incomplete event, occurring in the present or in the future. Mark­ing the completion of the action through the perfect tense secures, for the Muslim jurist, the performance of the action (kasb) and so the attribution of responsibility for the mukallaf; there is a ‘performative’ outcome in the use of the perfect verb.²¹ In contrast, the present or future tense (imperfect verb) do not fully bind the contracting parties in relation to the acquisition (kasb) of the action created by God. ‘For this reason, the law requires that both offer and acceptance be couched in the past tense to indicate finality, rather than in the future tense, which is promissory (‘ida)’ (Zysow, 1985-86, p. 75). What we find in the Islamic ‘aqd is not a model of executory contracts with promises to be performed in the future; on the contrary, it is an executed exchange (on this specific point, see section 3.5.2 in this chapter). It is within this background that the need for investigation of the intention (niyya) of the parties (due to possible ambiguity due to the lack of the use of past tense) can be explained in the passage by al-Kasani.

Within the discussion of the relevance of verbalism in Muslim fiqh, for all juristic schools, the contract is binding according to the use of the word (qawl), and specifically, in the form of a verbal offer (jdb) and a verbal accept­ance (qabul).

2) Not only must a verbal offer (fijdb) be followed by a verbal acceptance (qabul), but these declarations must occur at the (same) time and place of the majlis al-‘aqd, ‘contractual meeting’ or ‘session’ (Mallat, 2007, pp. 271-276). All the schools require that the declarations happen in the same spatial and temporal fragment (unity of time and space); a contract that is made in violation of this rule is not merely invalid (/dsid), but inex­istent, bdtil. The requirement is so strong that for the Hanafis the contract becomes an indivisible entity, to the extent that:

its construction replicates this unity. Unity of the act: thus, a single con­tract cannot involve two or more negotia. Unity of time: the contract must be concluded in the same temporal session. Unity of place: the contract must be concluded in the same spatial place.............................................................. To conclude, the contrac­

tual phenomenon must occur within the modality of the ‘three unities’.

(Chehata, 1969, p. 104; my translation)

The doctrine of the majlis al-‘aqd is common to all the four Sunni schools, with marginal divergences on the modalities of the contractual meeting.

The principle is that the offer must be accepted by the other party dur­ing the same contractual session. The contractual session happens in the place where the two parties meet; it begins when the offer is emitted; it lasts till the two parties leave. It finishes, moreover, when one of the two parties declares his intention not to continue the negotiation. All the schools agree on these points; the divergences emerge on the following four questions: A. does the contractual session end only when the two parties leave? B. must the acceptance follow the offer immediately? C. is the party who offers bound by his offer and must he maintain it till the end of the contractual session? D. last (and this is the most serious issue), may the person who has already accepted withdraw his statement before the end of the session?

(Linant de Bellefonds, 1965, p. 148; my translation; for a comparative investigation of these issues, see ibidem, pp. 148-154)

Interestingly, the claim of the unity of the contractual meeting is applied (fic­titiously) even when the contracting parties are physically absent, with the contract being concluded by written documents or messages (kitdba or risdla). All the rules regarding the contractual session inter praesentes are applied, mutatis mutandis, to the meeting inter absentes, the contract is always con­cluded at the place and time of the acceptance, when mutual consent (tarddi) has been manifested (ibidem, pp. 154-156; Chehata, 1969, p. 119).

Similarly to verbalism, the need for a unique session for the validity of the contract finds its rationale within the conceptual construction of the ‘aqd in relation to Islamic din. When inserted in the Wor(l)d of Islam, shaped by the everlasting creativity of God in time, ‘words’ and ‘contractual session’ are con­ceived in the light of a unity of the act in the time and space of God’s creation; the performance of the action must be complete (and so ‘completed’ in space and time) for the contract to exist. Hence, as the words must be reported according to the perfect verb of Arabic language, so the declarations must be unified in the majlis al-‘aqd. For this reason, the violation of the requirements of the majlis al-‘aqd renders the contract inexistent. The unity of the majlis al-‘aqd also explains why the Safi‘is and Hanbalis admit an ‘option of the con­tractual session’ (khiydr al-majlis) - i.e. the faculty for the parties to revoke the offer or acceptance just given during the contractual negotiations.²² As long as the majlis is open, there is not yet a valid contract, and each of the parties can abandon the negotiations without legal consequences.

3.5.2. Offer (ijab) and acceptance (qabul) in the taradi: what is the

nature of the agreement in Muslim fiqh?

As in common and civil law, in the theory of the ‘aqd, the convergence between an offer (ijdb) and an acceptance (qabul) in the agreement (taradi) gives rise to an enforceable contract. But how do offer and acceptance relate in Muslim fiqh? If the tarddi is itself a ‘craft of work’ which depends on the local knowl­edge of Muslim jurisprudence (see section 3.1 in this chapter), does it create obligations binding human wills, as in the civilian tradition, or enforceable promises by means of consideration, as in common law? Or something else?

A fundamental starting point for the discussion can be found directly in the Qur’an, ‘Oh ye who believe! Do not consume your property among your­selves in vanities (bi-al-bdtil), but let there be amongst you traffic and trade by mutual good-will [tijaratan ‘an tarddin minkum]' (Q. 4,29). This dyat shows an opposition between consuming, devouring, squandering properties unjustly (the term applied here is precisely bdtil, which refers, as we know, to the ‘nullity,’ ‘inexistence’ of the action) and legitimate (sahih) trade (tijdrah) by ‘mutual consent between the parties’ (‘an tarddin minkum). Accordingly, the tarddi, as the empirical manifestation (sighah) of the convergence between two assents - ridd - in the offer (ijdb) and acceptance (qabul), represents a constitutive element (rukn) of any ‘aqd.

But what is its ‘value’ in Muslim fiqh? If no sound (sahih) contractual build­ing can exist without the tarddi, the ‘ground’ on which this building subsists cannot be identified as an ‘act of (human) will’ creating legal obligations (as it is in the tradition of civil law); rather, it consists in the ‘external occurrence’ of the agreement itself in the transaction. In other words, it is more a matter of rational choice than a matter of will; not by chance, its Arabic root is not that of iràda, ‘will’ (R-W-D, ‘volition,’ ‘wish,’ ‘desire’) but of ridà (R-D-Y), which refers to the idea of ‘approval,’ in the sense of being pleased with one’s deci­sion. The taràdì is mainly a matter of human rationality ( ‘aql); it is the con­scious and rational commitment to adhere to the rules of the contract (ahkàm al-‘aqd) as established by Law, by an animus contrahendi (qasd) that leads to the rational choice (ikhtiyàr) of expressing consent (ridà).

Thus, even if the notion of taràdì certainly implies a bilateral convergence of offer (ìjàb) and acceptance (qabul), it does not entail an obligatory (civil law) construction. ‘It is not formed by an exchange of promises but an exchange of grants,’ according to Zysow; a point ‘which may reflect a pre-Islamic stage in which sales were unilateral conveyances’ (1985-86, p. 76). Whereas John Mak- disi considers Zysow’s use of the term ‘grant’ ambiguous (1999, p. 1653, note 85), its meaning can be derived from the differentiation that he makes between promises and grants, as mentioned previously. Since the idea of the ‘exchange of promise’ is interpreted by Zysow as an aspect of ‘our modern law,’ being ‘future-oriented’ (ibidem, p. 75) in standard executory contracts, the notion of ‘grant’ supposedly relates to a transfer of properties that the parties confirm in the contract; something ‘past-oriented’ that is ratified; in other terms, the result of a conveyance that has been executed. Hence, the nature of the taràdì differs essentially from the doctrine of consensualism of civil/common law both in relation to its time construction and the role of human will. As regards time, it is oriented to the past (executed exchange of grants) and not the future (execu­tory exchange of promises, or obligation to be performed). Regarding the role of the will, it does not embrace the notion of ‘consensualism’ as the ‘source’ of the transfer of titles; the binding force of the ‘aqd lies, in fact, on the equiva­lence of the countervalues (see the following). Although the Qur’an speaks of ‘trade by mutual good-will,’ ‘mutual consent’ (Q. 4:29: an taràdin), Schacht remarks significantly that ‘this is not used as a technical term, as appears from sura ii.233, and the concept of agreement or consensus as such does not enter into the Islamic theory of contracts’ (1964, p. 22, note 1).²³

In this regard, Hamid (1977) prefers to translate taràdì as ‘mutual assent,’ not ‘mutual consent.’ Unsurprisingly, the Arabic word that would render liter­ally the idea of ‘agreement’ (ittifàq)²⁴ does not appear with reference to the ‘aqd in classical texts. As Chehata points out ‘the term ittafaqà can be found [in Saybani] only once. But it does not refer to the agreement of wills. The text deals with the burden of proof, in case of agreement or disagreement of the parties on the qualities of the object of the sale’ (1971, p. 164; my transla­tion). Challenging the bilateral construction of the contract (offer and accept­ance) as standard rule, Schacht remarks how the original nature of the ‘aqd was probably unilateral.

The essential form of a contract in Islamic law consists of offer and acceptance (jab and qabul).... This juridical construction, however, disagrees with the terminology because jab, making something wajib, means etymologically not ‘to offer’ but ‘to make definite, binding, due’, and this reflects a different, unilateral construction of the contract which is well known from other systems of law. It seems, therefore, that a uni­lateral construction was superseded by the bilateral one[.]

(Schacht, 1964, p. 22)

This unilateral construction of the ‘aqd adds another point of reflection regarding the doctrine of the khiydr, as the rational expression of adherence to the agreement, and highlights how the principle of consensualism²⁵ cannot be immediately applied in the context of Muslim fiqh. In the space of Islam, the ‘aqd is not the autonomous outcome of human wills converging in the tarddi: ‘the act does not exist thanks to the will of the person’ (Chehata, 1970b, p. 126), as in the tradition of civil law. On the contrary, Muslim juris­prudence concentrates on the rational approval (an ‘assent’) of the transfer of goods by the parties; the agreement is primarily a fact of intellect, not of will (it is an ‘acte de raison' according to Chehata: ibidem), where the sighah embodies the intention (niyya) to adhere to the Law through the material pronunciation of words.

In the Hanafi school, for instance, Quduri asserts that the juristic act is ‘a rational act led by a specific intention;’ but ‘the intention is not the will that creates the act as in our modern law. In Islamic law it simply promotes the declaration following reflection (act of intellect). And it is the declaration itself that brings about legal effects’ (Chehata, 1971, pp. 168-169; my translation). In the same way, Sarakhsi, in his Mabsut, explains that ‘the juristic act exists in the fact that a declaration has been pronounced’ (ibidem, pp. 170-171); it is a manifestation of rationality expressed in an outer declaration and, even if supported by intention, ‘it is clear that... at the base of the juristic act there is not the notion of a will as creator of rights’ (ibidem). Accordingly, the tarddi is made by the factual correspondence between two declarations, not by the meeting of convergent wills in the agreement. This correspondence ‘binds’ (‘aqada) the contracting parties to the contractual effects (hukm al-‘aqd) of the transaction; when the conditions established by Law are met, the tarddi determines a new allocation of property rights (huquq al-‘aqd), not the rise of legal obligations in the sense of the civil law tradition.²⁶ On one topic Muslim scholarship expresses a unanimous position:

every effect which derives from the declaration is produced following the way established by law; and not the way desired by the parties. The contract is a “cause” (sabab) established by law, whose deriving effects (hukm) are, in the same way, defined by law. From the animus required as a necessary condition for the effectiveness of the declaration - to the voluntas conceived as the substratum of the juristic act, there is a tre­mendous gap.

(Chehata, 1970b, pp. 128-129; my translation)

In summary, in the theory of the ‘aqd, human intention and rationality, not the autonomous will of the parties, determine a novel allocation of huquq, according to the rule established by God (hukm). The contract does not cre­ate obligations binding the contracting parties; the rights (huquq al-‘aqd) are effects established by God (hukm al-‘aqd). The enforceability of the contract does not derive from the binding force of the taradi within the frame of con- sensualim (solus consensus obligat), but it is established by Law in the agency relationship between God and His believers (on the point see also the conclu­sive reflections of this chapter: section 3.6).

3.5.3. The subject matter (mahall) of the contract(al-ma‘qvtd ‘alayhi): exchanging properties (amwal), either ‘ayn or dayn, in relation to the dhimma

As seen before (section 3.3.3), any sar‘i act is grounded on certain arkan (the divine injunction; the capacity of the agent; and the ‘place’, mahall, of the juris­tic relation) and it is dependent on certain conditions (surut) for its validity.

The specific ‘place,’ mahall, the ‘ground’ on which the ‘aqd stands, con­sists of ‘[the subject matter] upon which the contract is stipulated’ (al-ma‘qud ‘alayh), the contract being upon it (‘alayh). This is what in French law is defined as the objet du contrat and Santillana renders as id de quo est contrac­tum (1965, p. 16: lit. ‘that which [the parties] are negotiating about’). More precisely, al-ma‘qud ‘alayh in Muslim fiqh can refer both to the contractual terms, clauses, and subject-matter of the agreement, as well as to the properties (amwal, sing. mal) that are exchanged. Keeping the metaphor of the building (see beginning of section 3.5), the mahall may be thought as the ‘ground,’ the ‘surface’ where the ‘aqd stands - a construction whose materials (the ‘bricks’) are the properties to be exchanged, while the agreement (taradi) between the parties is the ‘labour,’ the human ‘workforce’ that constructs the edifice.

On the topic of the objet du contrat, the elaboration by Muslim scholars ranges from a detailed regulation of property law to a ‘preoccupation with maintaining the balance between the diverse effects resulting from legal acts in conjunction with their efforts to prevent all aleatory or usurious transac­tions’ (Rayner, 1991, p. 131, quoting Linant de Bellefonds, 1965, p. 184).²⁷ In particular, Linant de Bellefonds specifies four requirements (1965, p. 185; similarly, Zahraa, 1998, p. 271):

1. the goods must exist at the time of the contract;

2. it must be something capable of being possessed, of certain delivery or capable of being executed immediately (in case of an obligation for performance);

3. it must be licit, legal (mubah);

4. it must be clearly determined as regards its genus, species, quality, and value.

These requirements can be better specified as follows.

1. The objet must exist at the time of the conclusion of the contract (principle of existence of the object).

‘This requirement... has as its purpose the protection of the parties to the contract against any risk through hazard or gharar likely to cause imbalance of the benefits’ (Comair-Obeid, 1996, p. 336; for the notion ofgharar, ‘uncer­tainty,’ see next section, 3.5.4). For instance, it is illegal to sell the fruit which has not yet appeared on the tree. The requirement is grounded on the follow­ing hadith: ‘Abu Dawud recites an hadith that Ibn Hazm asked to the Prophet: ‘A man asked me to sell him something that I did not have; should I go and buy it from the market?’ The Prophet replied: ‘Do not sell what you do not have’’ (Rayner, 1991, p. 133).

As far as the hadith is concerned, it contains nothing to invalidate the sale of a non-existent object. What the hadith denotes is the prohibition of the sale of an existing object that the seller himself does not own. The full scenario of the hadith is self-explanatory.... Al-Kasani pointed out that Hakim Ibn Hizam used to sell goods that he did not own by taking the price from a prospective buyer, then he would go to the market to purchase the goods, and then he would deliver them to the buyer. This scenario was brought to the attention of the Prophet (pbuh) who then stated the wording of the hadith translated above. This scenario clearly shows that it is the ownership but not the existence of the goods that has been addressed by the Prophet’s hadith.

(Zahraa and Mahmor, 2002, p. 386)

However, classical sources also remark how ‘the goods must be already in existence at the time the contract of sale is concluded and that the sale of a not-yet-existing (ma‘dum) object is void’ (ibidem, p. 380);²⁸ in relation to the doctrine of gharar, this suggests that ‘the absence of uncertainty and doubt regarding the qualitative and quantitative description of the subject matter as well as the safe availability rather than the existence of the subject matter is the prime concern for the validity of the contract of sale’ (ibidem, p. 397).

2. It is not sufficient that the object exists: ‘for the juridical act to be valid the article must be available for immediate delivery’ (principle of certainty of delivery) (Comair-Obeid, 1996, p. 337).

This relates to another hadith of the Prophet, which prohibits ‘the sale by a seller of that which is not in his possession’ (bay‘ al-‘insan ma laysa ‘indah). Vogel notes how the Hanafis radically prohibit any sale of non-existent objects, while the Hanbalis tend to require only the certainty of delivery (for instance, Ibn al-Qayyim limits gharar to the ‘inability to deliver the sale object’) (Vogel, 2006, p. 68).

3. The objetmust be licit (mubah) (principle of legality).

Linant de Bellefonds specifies that the reference to a general principle of legality cannot be found in Muslim fiqh (1965, p. 194). Jurists, in contrast, enumerate the necessary conditions for the validity of the contract of sale: the transferred property (mal) must be capable of benefit, pure (tahir) and not prohibited by San‘ah (ibidem). The sale of something which gives no benefit makes the objet inexistent and the contract void (batil). Hence, things that by their very nature cannot be of private benefit (the air, the sea, rivers, lakes, grass,...) are not valid objet. Religious limitations are numerous in Muslim fiqh and comprise the notion of ‘purity’ (tahdra); examples of unlawful - haram - objects are alcoholic drinks, pork, hazard games (see ibidem, pp. 197-204).

4. The subject matter must be clearly determined regarding its genus, species, quality, and value, when a tangible thing is under contract; similarly, when it refers to a performance, it must be precisely determined as to its nature and its value. The issue of the precise determination of the subject matter can lead either to a lack of certainty which results in nullification (fasid) of the contract, or to a non-serious uncertainty which implies a khiyar at-ta‘yin (option of specification: section 3.4.4). In the latter case, when the contract comprises different options of choice, the parties have a right of specifica­tion within a certain time period.

As noted, in the doctrinal elaboration of Muslim scholars, the objet, the subject-matter (mahall) of the contract, has primary relevance, so as to main­tain a balance between the legal effects of the transaction and avoid the risk of usurious and aleatory outcomes (see Rayner, 1991, p. 131). More in general, this importance can be explained because the objet is itself the ‘ground’ where the agreement (taradi) can validly stand; offer and acceptance ‘are understood as performatives; that is, as constitutive, dispositive utterances... [by which] the parties are creating immediate entitlements in each other... by transfer of title to goods’ (Zysow, 1985-86, p. 75). If these dispositive utterances define the human ‘workforce’ of the parties in the construction of the agreement, the ‘surface’ upon which the contract lies is an exchange of goods, that must relate ‘as much as possible to the here and now’ (ibidem, pp. 76-77), a point which explains the prohibition in Muslim fiqh of aleatory contracts (involving elements of uncertainty and risk with an outcome in the future: see later, gha­rar), as well as the executed (rather than executory) nature of the Islamic ‘aqd.

The ‘bricks’ for the construction of the contractual edifice are the properties that are exchanged. The concept of property (mal, pl. amwal) is fundamen­tal to understand the ‘aqd in Muslim fiqh,²⁹ where ‘ownership [milk] is not a ‘right’, in the modern sense of the term... ownership is integrated in the thing’ (Chehata, 1973, p. 178; my translation). Chehata’s remark can be better understood by maintaining our metaphor of the contractual building in the city of the ‘aqd. Since everything in Islam belongs to God, that ownership is ‘in the goods,’ as ownership is embedded in the properties that are sold and constitute the ‘bricks’ provided by God to human beings for commercial transactions. In other words, they are not ‘rights’ of the ‘labourers’ who are participating in the construction of the contract; amwdl enjoy, somehow, a tangible connotation as physical entities that are transferred in the transaction. Consequently, in their discussion of the notion of milk, Muslim scholars focus on the qualities of the goods and of the subject matter (see the foregoing), not on the ‘rights’ of the parties as subjects of the transaction; these are not ‘owners’ (in the modern sense of the term) but, more precisely, agents performing God’s will.

According to Vogel, mdl (property) is any existent thing to which human nature inclines (2006, p. 27); for Anderson, it is everything that has com­mercial value, ‘whose corporeal, usufructuary and other rights of any kind the exchange of which is customary are to be regarded as property (mdl) of commercial value’ (Anderson, 1975, p. 103; see also Islam, 1999). It must be physically possessable (qabd, taking of possession) and disposable by the property holder (act of disposition, tasarruf); moreover, property can relate to the ‘substance’ of the thing (raqaba) or to its ‘use’ or ‘usufruct’ (manfa‘a, pl. mandfi‘). The centrality of the concept of mdl in the conceptualisation of the ‘aqd is witnessed by the fact that a variety of contractual rules in all the juristic schools depend on the existence of the goods either as property hic-et-nunc (‘ayn: specific visible thing) or property-in-the-future (dayn: liter­ally ‘debt,’ subsisting ‘in the dhimma of the counterparty’) (Cattelan, 2013, p. 194).³⁰ This distinction recalls, to a certain extent, the dichotomy ‘choses in possession' - ‘choses in action' in common law, which distinguishes ‘tangi­ble personal property’ from ‘personal rights of property’ that can be claimed by action, and not by taking physical possession. But the pair ‘ayn - dayn of Muslim fiqh does not really translate either the couple chose in possession - chose in action of common law, or the pair corps certain - chose de genre of civil law (Cattelan, 2013, p. 196). The bricks of the city of the ‘aqd, once again, prove to be made of a distinct material.

In fact, the concept ‘ayn (pl. a‘ydn; whose meaning is ‘eye,’ the organ of sight; but also the functional result of the ability to see, the object that is seen: Van de Bergh, 1975), by embodying the ideas of individuality, specificity and present existence (Brunschvig, 1976c, p. 303; the brick ‘here and now,’ as suggested also by Zysow, 1985-86, p. 75), identifies in Muslim fiqh the tangible property hic-et-nunc (corps certain) (Cattelan, 2013, p. 191). By contrast, the concept of generic thing, part of a genre (jins), something fungible (chose de genre) opposed to the thing-itself (‘ayn), is expressed in Muslim fiqh in various ways:

• mithl (pl. amthdl) connotes the ‘equivalent’ of something; the thing can be replaced by another of the same genre, number, measure or weight; if there is no equivalent (md ld mithl lah) the thing is necessarily ‘ayn (ibi­dem, p. 192);

• the chose de genre is also called shay' (or mdl) fl dh-dhimma, ‘property in the dhimmaf the legal personality of the counterparty; interestingly, as Brun- schvig notes (1976c, p. 304), the thing-itself is opposed here not to the thing as part of a genre but to the thing as bound to the responsibility of a person; from an objective matter, we move to a subjective locus (mahall);

• this shift becomes even more evident with the concept of dayn (pl. duyun), whose literal meaning is ‘debt,’ but also ‘credit,’ and which describes some­thing intangible at present because generic, not ‘actualised’ yet as ‘ayn or existent only in the future. In this sense, dayn indicates the debt (as passive side of a credit) and the credit (as active side of a debt); accordingly, Islamic scholars distinguish the creditor as holder of dayn (lahu dayn: the credit belongs to him) from the debtor as owing the dayn (‘alayhi dayn: the debt being stemming from him, being upon him) simply with the use of different prepositions (Cattelan, 2013, p. 192).

It is in the fundamental linkage that ‘exists between the concept of dayn as debt/credit and the legal personality, dhimma, of the debtor, where, until the transfer, dayn properties are necessarily located’ (ibidem, p. 195) that the nature of dayn in Muslim fiqh can find proper explanation and be distin­guished both from the chose in action of common law and the obligation of civil law.

On the one hand, the notion of dayn also relates to dln (as we have remarked in section 2.3) in the sense of a debt, credit, obligation that renders part of Islam as a religious community by means of a human liability which indirectly reflects the judgement (dln) of God. In this context, Zahraa and Mahmor remark how ‘in Islamic legal terminology, the term dayn is used to denote debt. Although dayn in some sense is defined as mdl (property) that someone owes to another, it is sometimes used in a much wider sense as a ref­erence to an abstract or religious liability that is established against a person’ (2001, p. 224).

On the other hand, when interpreted within the dyad ‘ayn - dayn, the notion of debt departs from the Western idea of obligation (a legal duty for the individual) to embrace a material connotation as a kind of property already owned by the creditor: ‘the debtor owes it to him either now [as generic thing, still to be individualised as ‘ayn] or in the future [either as generic - daynfldh- dhimma - or specific thing - dayn fll-‘ayn]' (Vogel, 2006, p. 27). As Hiroyuki Yanagihashi puts it, dayn refers neither to the obligation nor to the credit (/ debt): ‘to be exact, the term ‘dayri’ refers to the object of an obligation or credit’ (2004, p. 173; italics added); it is a ‘brick’ that must still be added to the edifice, which is owed by the counterparty and necessary to maintain the equilibrium of the construction. Within this background, ‘the notion of dayn intrinsically embodies an idea of temporality as a credit relation..., where the debt/credit is not primarily conceived as a burden for the subject, but as a property (intangible at present) already owed by the creditor but not yet received in concrete form (and for this reason, still in the dhimma of the debtor)’ (Cattelan, 2013, p. 193).

Accordingly, the dhimma, ‘legal personality’ (but whose meaning also involves an idea of care, conscience, responsibility, protection, security) can be thought of as the ‘wheelbarrow’ (‘[t]he metaphor is of a physical place in the individual under obligation’: Vogel, 2006, p. 28) through which the debtor transports dayn bricks that already belong to the creditor but are temporarily upon the debtor; as evocatively said by the Maliki Khalil Ishaq (d. 767/1365) in his Muhtasar, ‘they are not o/him, but weigh upon him [i.e., over his dhimma]' (quoted by Santillana, 1938, p. 2). In this light, Chehata compares it to a ‘plate’ (assiette): the dhimma is not a ‘link’ between the creditor to the debtor but a ‘repository’ (receptacle),³¹ a ‘container’ of dayn properties. ‘Mais, a la verite, la dhimma ne se confond point avec l’obligation: elle en est proprement l’assiette. La “hdes^ engagee, l’objet du droit existera dans le receptable de droits qu'est la personne.... La dhimma n'est pas que le lien qui unit le creancier au debiteur, elle en estsurtout le receptacle' (Chehata, 1977, p. 238). My metaphor of the ‘wheelbarrow’ adds a more dynamic dimension to this representation, stressing the role of the Muslim believer as ‘God’s agent,’ ‘workforce’ (not owner) in performing the contractual construction. The conceptual interdependence between dayn properties and dhimma (the wheelbarrow where bricks are temporarily located to be taken to the site of the ‘aqd) is also proven by the fact that ‘ayn properties (keeping the metaphor, ‘bricks already on site’) never fall into the dhimma (Chehata, 1977, p. 238).

Pour les obligations ‘ayn, on ne parle pas de dhimma. Determine dans son individualite, l’objet d’une obligation ‘ayn est toujours certum. Si le debiteur refuse de livrer, ce n’est pas son patrimoine qui en repondra. Comme pour toute obligation de faire, la seule inexecution ne donne pas droit a des dommage-interets.

(Chehata, 1969, p. 172; in identical terms, Delcambre, 1981, p. 207)

In summary, if, for the ‘place’ (mahall), the ‘ground,’ upon which the contract lies (al-ma‘qud ‘alayh) ‘ayn bricks are already available-on-site (they are mate­rially existent hic-et-nunc), dayn bricks (existent physically in-the/uture and now as debt/credit) are temporarily located in a wheelbarrow, the dhimma (legal personality) of the debtor, under obligation to bring them to the credi­tor (who already owns them), since they are needed for the equilibrium of the construction. As Brunschvig remarks, it is in this ‘contrast between the thing that for now is present [“l’objet actuellement present”'] and the subject who endures [“le sujet qui dure” hence his dhimma, guaranteeing the debts]’ (1976b, p. 322, my translation) that we can shed light on the pair ‘ayn - dayn in the Muslim legal tradition.

3.5.4. The equilibrium of the contract and the doctrines of riba, maysir, and gharar

The general title of this section (3.5), referring to the construction of the ‘aqd (from which the metaphor of the ‘contractual building’ employed in these pages derives), implicitly points to one of the major peculiarities of the Islamic contract: something that can be described as a material approach that leads Muslim jurists to concentrate more on the outer occurrence of the exchange rather than on its psychological background.

Of course, this does not deny that intention (niyya) and the other psy­chological dimensions (irdda, qasd, khiydr, ridd) are essential for the valid formulation of consent - with significant divergence between the objectivism of the Safi‘is and Hanafis and the subjectivism of the Malikis and Hanbalis (as explained in section 3.4.3). Rather, what is absent in Muslim fiqh is the con­ception of the contract as the outcome of human will underpinning the civil­ian theory of obligation, grounded on the autonomie de la vol^onte; in Islamic law, the centrality of will is replaced by a rational assent, an approval (rida) of the ‘aqd that must be expressed by the parties in its outer manifestation (sighah). On the one hand, this aspect moves the coordinates of the contract more towards human intellect, rationality, reason (‘aql) rather than that of intention (niyya) (on this point, see section 3.6 in this chapter); on the other hand, all the elements that this book has already underlined (the limits to the parties’ contractual freedom, at 3.4.2; the vices of consent, replaced by the theory of al-khiydrdt, at 3.4.4; the external formation of the agreement, ‘verbalism,’ in the unity of negotiations, at 3.5.1; the conditions related to the objet in relation to the dhimma of the person, at 3.5.3), should lead the visitor to the city of the ‘aqd to pay special attention to the material qualities of its contractual building.

This is not to say that the ‘human workforce’ is neglected in the elabo­ration of Muslim scholars; although the idea of autonomy is marginalised, an agreement is certainly necessary in its outer (verbal) occurrence (sighah). At the same time, God (the Master Architect of all the universe, providing believers with guidance - Sari‘ah - also for the construction of the ‘aqd) has revealed a broad set of binding rules to guarantee the ‘stability,’ the ‘safety’ of the building for His agents. It is in this context (by maintaining the ‘aqd within the local knowledge of Muslim fiqh as a ‘craft of space:’ section 3.1) that the prohibitions of (1) (unlawful) gain, increase, addition, enrichment (riba, usually rendered with ‘interest,’ ‘usury’); (2) ‘uncertainty’ (gharar, also ‘risk,’ ‘hazard,’ ‘speculation’) as to whether or not a contractual obligation will be performed; and (3) ‘gambling’ (maysir or qimdr)³² can find their precise meaning.

These rules can be conceived as the conditions for the ‘architectural sta­bility’ of the contractual building; they guarantee the balance, the equilib­rium of the contract - and, in the end, its safety for the contracting parties. In this light, both the concept of mdl (section 3.5.3) as something material and tangible and the ‘reality’ of any right (haqq) as depending on God’s will (hukm) (Chapter 2) not only explain the centrality of the objet in Muslim fiqh but also reaffirm the significance of the underlying doctrines of riba, gharar and maysir as cornerstones for the stability of the contractual edifice.

• Riba

Fundamental provisions regarding riba (‘illicit increase’) can be found in the second sura of the Qur’an, verses 275-281, particularly in relation to the opposition of riba to legitimate trade (al-bay‘, lit. ‘sale,’ broadly interpreted with reference to any kind of commerce).

(275) Those who devour usury will not stand except as stands one whom the Evil One by his touch hath driven to madness. That is because they say: “Trade is like usury” [al-bay‘u mithlu ar-riba], But Allah hath per­mitted trade and forbidden usury [ 'ahalla Allahu al-bay‘a wa-harrama ar-riba] [...]. (276) Allah will deprive usury of all blessing, but will give increase for deeds of charity: for He loveth not creatures ungrateful and wicked. (277) Those who believe, and do deeds of righteousness, and establish regular prayers and regular charity, will have their reward with their Lord: on them shall be no fear, nor shall they grieve. (278) O ye who believe! Fear Allah, and give up what remains of your demand for usury, if ye are indeed believers. (279) If ye do it not, take notice of war from Allah and His apostle: but if ye turn back, ye shall have your capital sums: deal not unjustly, and ye shall not be dealt with unjustly. (280) If the debtor is in difficulty, grant him time till it is easy for him to repay. But if ye remit it by way of charity, that is best for you if ye only knew. (281) And fear the Day when ye shall be brought back to Allah. Then shall every soul be paid what it earned, and none shall be dealt with unjustly.

Other relevant passages can be found in Q. 3:130 (‘Ye who believe! Devour not usury, doubled and multiplied; but fear Allah; that ye may really pros­per’) and Q. 4:161 (‘That they took usury, though they were forbidden; and that they devoured men’s substance wrongfully; - We have prepared for those among them who reject Faith a grievous punishment’). For the opposition riba/charity, next to Q. 2:276-277, see also Q. 30:39 (‘That which ye lay out for increase through the property of (other) people, will have no increase with Allah: but that which ye lay out for charity, seeking the countenance of Allah (will increase): it is these who will get a recompense multiplied’). As far as the Sunna is concerned, it is reported that the Prophet said: ‘Riba is of 73 types. The least of them is like a man having sexual intercourse with his mother’ (Ibn Madja; Hakim); ‘The Messenger of God cursed the one who consumes riba, the one who makes it be consumed, its inscribed, its two witnesses’ (Muslim; Bukhari); ‘Gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, salt for salt, like for like, equal for equal, hand to hand. If these types [asndf] differ, then sell them as you wish, if it is hand to hand’ (Muslim). For the divergences among the juristic schools on the extension of the prohi­bition of ribd and their interpretation, the most comprehensive source in the English language remains the book by Nabil Saleh (1992a, pp. 11-43). With regard to the historical reconstruction of the early Islamic law of property in the 7th-9th centuries CE, Yanagihashi has convincingly shown, through the study of the rules that led to the formation of the doctrine of ribd, that ‘the prohibition had been established as a general principle that governs the Islamic law of property in the first decades of the eighth century, i.e. just before Abu Hanifa and Malik emerged as representative authorities in their respective regions’ (Yanagihashi, 2004, p. 300).

• Gharar

The termgharar, usually translated as ‘risk,’ ‘hazard,’ ‘uncertainty,’ expresses in Arabic the idea of a (potential) danger of loss due to the incorporation of risk in the transaction (hence affecting the safety of the contractual construction).

In the case of gharar... I would like to argue that a good transla­tion already exists in the term ‘risk’. The term risk (Italian: risco [rectius, rischio]; French: risque) is derived from the Latin roots re = back and secare = cut, thus reflecting the potential for a sailor to have his ship cut by hitting a rock. In other words, ‘risk’ means ‘danger of loss’. This is precisely the meaning of the Arabic term gharar The origin of

the term is the three-letter past tense verb gharra [GH-R-R], mean­ing ‘to deceive’. Thus, the Encyclopedia of Jurisprudence... states that tadlis = cheating (in trade) and ghabn = fraud and deception are among the categories ofgharar. The type of uncertainty regarding future events which constitutes gharar may be one-sided or two-sided, and it may be intentional or unintentional. However, in all of the definitions that fol­low, one thing is common: the incorporation of risk.

(El-Gamal, 2001, pp. 4-5; see also El-Gamal, 2006, pp. 58-62)

While the term gharar does not appear in the Qur’an, the Sunna reports that the Prophet ‘forbade the sale of an escaped slave or animal, the sale of a bird in the air or a fish in the water, the sale of what the vendor is not in a position to deliver,... the sale of the young still unborn when the mother is not part of the sale, the sale of milk in the udders and the sale of the stal­lion’s sperm’ (Saleh, 1992a, p. 106) because of the fear ofgharar. Numerous ahddith relate to the matter, especially with regard to the existence of the objet (see section 3.5.3): ‘The Prophet has forbidden the sale in which uncertainty (gharar) exists’ (Muslim; Ibn Mddja; Abu Dawud; Al-Tirmidhi). ‘The Prophet forbade sale of... the “stroke of the diver” [darbat al-ghd'is, apparently, sale in advance of the yield of a diver’s dive, whatever it was]’ (Ibn Mddja). ‘Do not buy fish in the sea, for it isgharar' (Ibn Hanbal). ‘The Prophet forbade sale of what is in the wombs, sale of the contents of their udders, sale of a slave when he is runaway,...' (Ibn Madja). ‘The Prophet forbade the sale of grapes until they become black, and the sale of grain until it is strong' (Bukhari; Muslim; Abu Dawud; Tirmidhi). ‘Whoever buys foodstuffs, let him not sell them until he has possession of them' (Bukhari). ‘He who purchase food shall not sell it until he measures it [yaktalahu]' (Muslim) (ahadith quoted in Vogel, 2006, p. 23; for a detailed explanation, see Saleh, 1992a, pp. 62-106).

• Maysir/Qimar

O ye who believe! Intoxicants and gambling [games of chance: maysir], (dedi­cation) of stones, and (divination by) arrows, are an abomination, - of Satan's handiwork: eschew such (abomination), that ye may prosper. Satan's plan is (but) to excite enmity and hatred between you, with intoxicants and gambling, and hinder you from prayer: will ye not then abstain?

(Q. 5:90-91)

According to some commentators, this verse refers to a complex game played at the time of the Prophet, ‘by which lots were drawn for parts of a slaugh­tered camel with those who lost paying for all its cost.³³ Most declare the term... [maysir] to refer to gambling generally' (Vogel, 2006, p. 13, note 53). In the Sunna, the word qimar is more common to define the concept. Sayyiduna ‘Abd Allah ibn ‘Umar says: ‘maysir is the qimar ' Sayyiduna Abu Hurayra narrates that the Prophet said: ‘Whosoever says to another: “come let's gamble” should give in charity [as a form of expiation for intending to gamble]' (Bukhari).

Proceeding with order to consider how revealed sources have been interpreted in fiqh legal tradition to guarantee the stability of the contract, Muslim scholars interpret ribawwi transactions as invalid due to an unbalanced distribution of rights (the building was erected unstable, and so it risks falling down), either on the grounds of a quantitative inequality at present (tafadul) or because of a delay (nasa', nasi'a, nazira). Thus, in the case of monetary exchange (contract of sarf), the values must be identical and the transfer of possession immediate on both sides in order to avoid any illicit excess (riba 'l-fadl, ‘riba of excess'). In addition to this, any unjustified delay in the performances is forbidden, such as riba ’l-nasi’a (‘riba of delay').³⁴ In their classifications, the fuqaha' also refer to riba al-jahiliyya (‘pre-Islamic riba'), occurring when the giver offers the taker at the maturity date two alternatives: to settle his debt (dayn) or to increase it two-fold. This was a customary practice in the pre-Islamic era, which is directly prohibited in the Qur'an (Q. 3:130; see foregoing quote).

Mahmoud El-Gamal advances an economic explication of riba (2000; see also El-Gamal, 2006, pp. 49-57) by describing it in the light of a ‘symmetric relation,' an equality between the countervalues that guarantees equity in the transaction thanks to a ‘quantitative equilibrium’ among the parties (Cattelan, 2009). This concept can be well illustrated through the equilibrium between the sides of a building under construction, whose bricks must be balanced quan­titatively. Next to the metaphor of the ‘aqd as a building under construction, another explanatory image is offered by Andrey Smirnov in his article about the comparison between the Western and the Islamic conception of justice (already mentioned in Chapter 2). Smirnov highlights how the essence of any right (haqq) in Islam is to think about ‘a sort of substance that has constant volume, of which some parts may happen to be not where they belong, not in the due place; and justice means the necessity of returning them to where they should be’ (1996, p. 344). Any haqq relates to what is deal,’ ‘true,’ ‘just’ as established by God when conceived in the unity of the two sides (active and passive) of the legal transaction (the symmetric relation that gives stability to the building). Accordingly, Smirnov alludes to the archetype of the scales as symbol of justice to remark that while ‘Western thinking is concerned with the pans of the scales and their contents’ (to the extent that the two side of the transactions are con­ceived one independent from the other), ‘for classical Islamic thought the stress lies on the central balancing pivot’ (ibidem, p. 346), so that it is the balance of the building that defines the inner validity of the contract.

It is making one equal to the other (equality between two necessar­ily separate entities) that is important in the first case, and theoretical discussion tries to determine the accuracy of this equalizing.... In the second case it is the fact of balancing the opposites that is important, this balance being reached by means of the centering and mediating pivot; the theoretical task is to find out how the two might be linked to form a balanced unity and what the conditions are for such a linkage.

(ibidem, pp. 346-7)

The metaphor of the scales and of its pans can shed light over the concept of riba as conceived in Muslim fiqh in the following terms: the validity of the ‘aqd depends on the maintenance of an equilibrium (Smirnov’s ‘balanced unity;’ El-Gamal’s ‘symmetric relation’) between the contracting parties. Therefore, any (unlawful) increase, addition, (illicit) gain (riba) on the one pan makes its legal construction defective, either in an exchange at present (riba 'l-fadl, riba of excess) or when it affects the responsibility of the dhimma of the debtor (riba 'l- nasl’a, riba of delay). This interpretation of riba in terms of ‘bal­anced unity,’ ‘equilibrium,’ ‘symmetry’ is also confirmed by al-Kasani, in a pas­sage where he describes the purpose of any bilateral commutative exchange in terms of equality of the counter-values (already quoted at 3.4.1).

Equality... is the aim of the contracting parties (al-musawat... matlub al-‘aqidayn).... The entirety of the sold object is to be considered equivalent to the entirety of the price (kull al-mabi‘ yu‘tabar muqabalan bi-kull al-thaman), and the entirety of the price equivalent to the entirety of the sold object. Any increment (ziyada), whether in price or in the object which has no corresponding equivalent, would be an additional value without compensation... and this is the meaning of usury (riba).

(al-Kasani, Bada'i‘ al-Sana'i‘ fi Tartib al-Shara'i‘, reported by Arabi, 1997, p. 208)

The passage can further clarify the doctrine of riba in Muslim fiqh.

First, the prohibition is referred by the fuqaha' only to synallagmatic con­tracts (mu‘awadat), where each party is bound to provide something to the other, not to liberal acts (at-tabarru‘at); in this sense, it shares some similarity with the doctrine of consideration in common law. In a hadith narrated by Jabir bin Abdullah and reported by Bukhari, it is recorded that the Prophet repaid the debt that he owed to Jabir and he gave him an extra amount; the scholars explain that a borrower is free to pay an extra amount on the principal sum providing that the act is gratuitous and not stipulated as a condition of the borrowing (such a payment would be ribawwi).

Second, riba is described in most legal manuals as one of the principles gov­erning contracts in general within the chapter on sales - the sale being, bay‘, the archetype of any commutative contract in Muslim fiqh. In this regard, the widespread translation of riba in Western scholarship as ‘usury’ and ‘interest’ becomes misleading (if not erroneous), since the application of the doctrine is not limited to money lending (contract of qard: ‘loan of money and of other fungible objects which are intended to be consumed,’ Schacht, 1964, p. 157) or money exchange (the contract of sarf). In fact, since ‘the prohibi­tion requires a balance between the value of the subject matter and its con­sideration’ (Yanagihashi, 2013), it finds a much larger application beyond the ban of interest in the loan (as in the unjustified enrichment of the exchange of fungible things of the same genre; the illicit profit due to the delay of the performances;...). Not by chance, the concept of riba is not opposed to the legitimate lending of money, but more in general to ‘trade/selling’ in the Qur’an: Q. 2:275: ‘God permitted trade and forbade riba' ('ahalla Allahu al-bay‘a wa-harrama ar-riba).

Third, the recognition that ‘the Arabic term is usually held to constitute something wider than the mere prohibition of excessive interest’ (Rayner, 1991, p. 267) explains why the concept of riba can apply (as noted previously) to any unlawful increase with no corresponding consideration at present (riba 'l-fadl). Accordingly, Schacht (2012) defines riba in the Encyclopedia of Islam as ‘increase in’ or ‘addition to’ (the content of a pan, in the metaphor of the scales); in its widest interpretation, it is ‘any unjustified increase of capital for which no compensation is given.’ In line with these interpretations, one of the most comprehensive definitions of riba has been given by Nabil Saleh in the following terms:

[r]iba, in its Shari’ah context, can be defined... as an unlawful gain derived from the quantitative inequality of the counter-values [italics added] in any transaction purporting to effect the exchange of two or more species i'anwa¹, sing. naw¹), which belong to the same genus (jins) and are governed by the same efficient cause (‘illa, pl. ‘ilal). Deferred completion of the exchange of such species, or even of species which belong to different genera but are governed by the same ‘illa, is also riba, whether or not the deferment is accompanied by an increase in any one of the exchanged counter-values. That being the case, usurious transactions were classified into two categories: (a) riba 'l-fadl [riba of excess], which is produced by the unlawful excess of one of the counter­values as described above, and (b) riba ’l-nasi’a [riba of delay], which is produced by delaying completion of the exchange of the counter-values, as also described above, with or without an increase or a profit.

(Saleh, 1992a, p. 16)

Similarly to riba, the prohibitions of gharar and maysir are conceptually related to the nature of the exchanged properties (not to the intentions of the parties). More precisely, one could say that, whereas the prohibition of riba affects the balance, the equilibrium, the stability of the contractual building, those of gharar and maysir are related to the ‘quality’ of the ‘material’ of its construction (see on this point Cattelan, 2009). A defective structure of the huquq al-‘aqd, in fact, (a) may also depend on the non-sufficient determina­tion of the content of the pans, due to ignorance (jahala) of some aspects of the transaction or the non-existence (‘adam) of the object (gharar), or (b) may derive from an agreement on gambling or an aleatory contract (maysir). In both cases the ‘materials’ used for the contractual building become intrin­sically fragile, risky, dangerous for the parties (keeping the metaphor of the building, one could say that the concrete is defective; the bad quality of the cement deprives the construction of its solidity, independently of any propor­tionality, equality, equilibrium that is pursued under riba instructions).

Literally meaning fraud (al-khid‘a), gharar in transactions has often been used in the sense of risk, uncertainty and hazard.... Gharar... includes both ignorance over the material attributes of the subject matter and also uncertainty over its availability and existence. Al-Sarakhsi has thus stated that gharar in a contract or transaction exists when its consequences are hidden and unknown to the contracting parties (al-gharar ma yakunu mastur al ‘aqtbah).

(Kamali, 1999, p. 200)³⁵

Similarly, Zahraa and Mahmor point out that ‘the Arabic word al-gharar means danger (al-khatar), that denotes the exposure to perish [the building’s collapse] without prior knowledge’ (2002, p. 384). They refer to Al-Sarkhasi, Al-Siradhi, and Al-Ramli, who define gharar as ‘what the consequence of which is hidden or unknown’ (ma kana mastur al-‘aqibah) (ibidem, p. 385) and provide a list of ten cases affected by gharar by Ibn Juzay.³⁶

Both the doctrines of gharar (lack of knowledge, uncertainty, danger of loss) and maysir (gambling) further testify to the ‘material’ approach of Mus­lim fiqh towards the ‘aqd. In the case of gharar, the lack of sufficient knowl­edge of the subject matter deprives the construction of the ‘aqd of necessary solidity; its material is defective, since the matter itself is hidden, unknown, or insufficiently known to the contracting parties. Thus, according to Saleh, ‘all sorts of transactions where the subject-matter, the price or both, are not determined and fixed in advance [lack of disclosure], are under a suspicion of gharar according to Sharia standards’ (Saleh, 1992a, p. 63). After the exami­nation of the explanatory examples and definitions reported by the traditions of each school, he concludes that

observance of the following three rules should, in principle, avert gha­rar in any give[n] transaction: (a) There should be no want of knowl­edge (jahl) regarding the existence of the exchanged counter-values. (b) There should be no want of knowledge (jahl) regarding the characteris­tics of the exchanged counter-values or the identification of their species or knowledge of their quantities or of the date of future performance, if any. (c) Control of the parties over the exchanged counter-values should be effective.

(ibidem, p. 66)

The rules on gharar and their effects on the validity of the contract vary in the literature, in relation to their impact on the ‘solidity’ of the contract. In this regard, Kamali indicates four conditions for gharar to have legal consequences.

The first of these is that it must be excessive, not trivial. A slight gharar, such as gharar in the sale of similar items which are not identical at one and the same price is held to be negligible. Second, that it occurs in the context of commutative contracts (‘uqud al-mu‘dwaddt al-mdliyyah), thus precluding tabarru‘dt. Third, that gharar affects the subject mat­ter of contract directly, as opposed to what may be attached to it (e.g. in a cow, it is the animal itself, not its yet to be born calf). Fourth, that the people are not in need of the contract in question. Should there be a public need (hdjjat al-nds) for it, gharar, even if excessive, will be ignored. This is because satisfying the people’s need takes priority by vir­tue of the Qur’anic principle of removal of hardship (rafi‘al-haraj). The Shari‘a thus validates salam (advance purchase) and istisnd‘ (manufac­ture contract) regardless of the gharar elements therein, simply because of the people’s need for them.

(Kamali, 1999, p. 201)

In the light of this, Kamali notes how ‘[g]harar can be summarised to occur into four main varieties on account respectively of uncertainty and risk pertain­ing to the existence of the subject matter, or over its availability, uncertainty

Comparing legal traditions 137 over the quantities involved, and lastly of uncertainty over timing of comple­tion and delivery’ (ibidem, p. 210).

Moving from the prohibition ofgharar to that of maysir, the risk of intrinsic uncertainty regarding the outcome of the contractual construction becomes even higher in the case of aleatory transactions, which result in a random dis­tribution of properties among the contracting parties. Metaphorically speak­ing, in this situation, the parties bet on the very subsistence of the contract; issues of equilibrium, stability, balance (riba), as well as of solidity (gharar) are then overcome by the structural insecurity (maysir) of the building. In this sense, maysir equals qimar, a word which stems from the root Q-M-R, indicating ‘that which increases at times and decreases at other times’ (and so qamar is the Arabic for ‘moon’); the ‘aqd shakes as if there was an earthquake, and its security is marginalised in favour of the advantage of one party (who may increase his wealth from the ruin of the house) at the expense of the other. Due to this structural insecurity, contracts affected by maysir are always deemed void, inexistent (batil).

3.6.