1 RKFQ 2070 SECTION 2 GROUP 1

Tainted money is among the important issue discussed by muslim jurist: The views of muslim jurist
from different mazahib in regard to how to purify tainted money.
Muhammad Arif Bin Hasbullah(1)

Ahmad Firdaus Bin Mahdini

Baharuddin Bin Baso

Aliff Asyraf Bin Shaadan

Abstract
In Islam, managing and spending property is Allah's trust. It is a necessity that aims to achieve a blessed life.
The right perspective on property will ensure that one achieves happiness in the world and the hereafter
through his property. Property has a noble position in Islam. Islam encourages its people to have, produce
and use their property well and wisely. From the Islamic perspective, properties are tools to ensure the
comfort of human life in the world and happiness in the hereafter. It is also a connection to achieve piety.
Allah also grants wealth to humans to test the people whether they are grateful or otherwise. Besides to
teaching people to have a clear perspective on property, Islam also teaches humans to have the right view of
life. This is important to ensure that their lives are aimed and have a clear direction. Money, wealth and
income are the sustenance God has given to His servants. The Muslim community is encouraged to seek and
collect the property from a lawful source as the world is a garden to reap the fruits for the prosperous life in
the hereafter. Similarly, the wealth that is used according to syara’ will bring blessings to the world and the
Hereafter. The source of wealth is a thing that is deeply emphasized in Islam. It should come from a lawful
source, whether the property is income, savings or inheritance. All sustenance that can damage property,
intellect and all the gifts of Allah to man is haram. Likewise, the way we spend the money. Islam forbids its
people from doing wastage. Simple way of life is an ideal in Islam. Human beings must use their rights in
accordance with what is permitted and authorized by syara’. Human beings cannot use their right to harm
another person, individual or group. Property is a test from Allah to man and they are responsible for using
property to the way of God. All the wealth available in the earth is for human beings to use the property as
best they can and do not do damage on the earth. We must remember the warnings from God that the
occurrence of damage on this earth is a result of human hands that often use their property to the path of
God's displeasure. Therefore, as a muslim, we must acquire property in a way that is lawful and spend it in
the way that benefits us so that we can gain a life blessed in the world and give good in the hereafter.

‫ آراء الفقهاء المسلم من مختلف المذاهب فيما يتعلق بكيفية تنقية المال‬:‫المال الملوث هو من بين القضايا المهمة التي ناقشها الفقيه المسلم‬
.‫الملوث‬

‫ملخص البحث‬

‫ يضمن المنظور الصحيح على الملكية أن يحقق‬.‫ إنها ضرورة تهدف إلى تحقيق حياة مباركة‬.‫ إدارة الممتلكات وإنفاقها هي ثقة هللا‬، ‫في اإلسالم‬
‫ يشجع اإلسالم شعبه على إنتاج ممتلكاته واستخدامها‬.‫ الملكية لديها موقف نبيل في اإلسالم‬.‫المرء السعادة في الدنيا واآلخرة من خالل ممتلكاته‬
‫ بل هو أيضا‬.‫ الخصائص هي أدوات لضمان راحة الحياة البشرية في العالم والسعادة في اآلخرة‬، ‫ من المنظور اإلسالمي‬.‫بشكل جيد وحكيم‬
‫ وإلى جانب تعليم الناس أن يكون لديهم منظور‬.‫ كما يمنح هللا الثروة لإلنسان ليختبر الناس سواء كانوا ممتنين أو غير ذلك‬.‫صلة لتحقيق التقوى‬
.‫ هذا مهم لضمان أن حياتهم موجهة وتوجيه واضح‬.‫ فإن اإلسالم يعلم اإلنسان أيضًا أن يكون لديه النظرة الصحيحة للحياة‬، ‫واضح للملكية‬
‫ يتم تشجيع المجتمع اإلسالمي على السعي وجمع الممتلكات من مصدر شرعي ألن‬.‫المال والثروة والدخل هي القوت الذي أعطاه هللا لخدمه‬
.‫ فإن الثروة التي تستخدم وفقا لسارة 'جلب البركات إلى العالم واآلخرة‬، ‫ وبالمثل‬.‫العالم هو حديقة لجني الثمار للحياة المزدهرة في اآلخرة‬
‫ سواء كان العقار عبارة عن دخل أو‬، ‫ يجب أن يأتي من مصدر قانوني‬.‫مصدر الثروة هو الشيء الذي يتم التأكيد عليه بعمق في اإلسالم‬
‫ فإن الطريقة التي ننفق بها‬، ‫ وبالمثل‬.‫ جميع القوت التي يمكن أن تضر الممتلكات والعقل وجميع هدايا هللا لإلنسان حرام‬.‫مدخرات أو ميراث‬
‫ يجب على البشر استخدام حقوقهم وفقا لما هو مسموح به‬.‫ طريقة حياة بسيطة هي مثالية في اإلسالم‬.‫ يحرم اإلسالم شعبه من الهدر‬.‫المال‬
‫ الملكية هي اختبار من هللا لإلنسان وهم‬.‫ فرد أو مجموعة‬، ‫ ال يمكن للبشر استخدام حقهم في إيذاء شخص آخر‬.‫ومرخص من قبل شرع‬
‫ جميع الثروة المتاحة في األرض هي الستخدام البشر الملكية على أفضل ما في وسعهم وعدم‬.‫مسؤولون عن استخدام الملكية في سبيل هللا‬
‫ يجب أن نتذكر التحذيرات من هللا أن وقوع الضرر على هذه األرض هو نتيجة ليد اإلنسان التي غالبا ما‬.‫اإلضرار باألضرار على األرض‬
‫ يجب أن نحصل على الملكية بطريقة مشروعة وننفقها بالطريقة التي تفيدنا حتى نتمكن‬، ‫ كمسلم‬، ‫ لذلك‬.‫تستخدم ممتلكاتهم إلى طريق استياء هللا‬
.‫من اكتساب حياة مباركة في العالم والتوفيق في اآلخرة‬

(1) Students
of International Islamic University Malaysia. muhammadarifhasbullah@gmail.com,
mrguitarist99@gmail.com, baharuddin.baso99@gmail.com, asyrafshaadan@gmail.com
2 RKFQ 2070 SECTION 2 GROUP 1
Contents
Introduction
Property Concept
Shariah Non-Compliant
Property Concept
Types of Shariah
Non-compliant Property
and Syubhah Property
The Status of Shariah
Non-Compliant Property
The Management of
Shariah Non-Compliant
Property
Meaning of Riba
View from Four Major School
Purifying Tainted Money
(from sources of riba)
Preferred view
The Definition of Bribery
The Status of Bribery
The Punishment
Factors that Contribute to Bribery 10
Purify Property Comes from
Bribery
Gharar
Element of Gharar in The
Sale Contract
Sources of the Prohibition
of Gharar
Effective and Ineffective
of Gharar
The Purification of Gharar
Conclusion
References
Introduction
According to Fuqaha, what is meant by
tainted money is every property acquired or owned
in a way that is prohibited by shariah or can be
2
defined as shariah non-compliant property1
2 Prof. Dr. Muhammad Nabil Ghanayim,
Professor at Kuliyyah Syariah University of
Kaherah, has defined the tainted money or shariah
2 non-compliant property as illegal property acquired
through non-syariah ways which is taking property
that has a prohibition on it or that is named as a
falsehood by Allah SWT.
2
While most modern fuqaha define shariah
non-compliant properties are property owned and
3 earned through a non-recognized property such as
robbery, loot, proceeds from sale of stolen goods,
bribery, gambling, lotteries, riba transactions,
conventional insurance protection, investment
profits in shariah non-compliant securities and so
4 on.2
5 Property Concept
5
Scholars agree that the possessions of all
human beings are only trustworthy by God. Man
only serves as a temporary trustee to prosper the
7
earth of God in accordance with His will and
8 command. As a caliph on this earth, human beings
entrusted by God need to use every gift and treasure
9 that is given fairly and equitably. Along with this
trust, every property owned must be obtained
10 through a source of sharia-compliant. Not only do
they have to be spent on legitimate channels but are
10 also encouraged to be given to those in need.
Based on this concept, only legal property
in terms of Islam is recognized only. Such property
is permissible to sell its trade and any transaction
11 involving it is lawful and acceptable to syarak. Not
only that if this property is sufficient ‘nisab’ and its
12 ‘haul’ obliged to be issued zakat from it. Property
that is not recognized by syarak such as bank
robbery, gambling property and so on are not
12 recognized by Islam and all transactions involved
are illegal.3
12 SHARIAH NON-COMPLIANT PROPERTY
CONCEPT
Shariah non-compliant property refers to
15
property acquired through non-syariah roads
15 whether to take property which is prohibited on it
such as usury and gambling or there is a reply to it
16 such as stolen goods or robbery. This shariah non-
compliant property includes usury, excessive gharar,
16 gambling, loot, bribery, fraud and transactions
involving matters prohibited by Islam. Unlike
Shariah-compliant property, property acquired
through illegal sources has a different position in
Islam. Transactions or sale and purchase involving
3 RKFQ 2070 SECTION 2 GROUP 1
non-compliant property are not recognized by
shariah. In fact, it is also not imposed to zakat as it
has no value in the eyes of Islam. Sale and purchase
involving stolen property or liquor sale, or usury
transaction is illegal and is not recognized by Islam.4
Generally, this shariah non-compliant
property is categorized as unrecognized property by
syarak (Mal Ghair Mutaqawwam). This means that
even though it has commercial or economic value, it
does not get Islam's recognition. Therefore, the
owners or holders of these Sharia non-compliant
properties are not allowed to use them for any
purpose whether personal or otherwise. This is
because he has no right to the property and the right
to the property has been transferred to another party:
- haram and some are halal. For example, property
(i) If the property is known to the real owner as in
the case of robbery, it must be returned to the real
owner.
(ii) If the property is derived from illegal goods such
as gambling, wine or usury, this property has been
transferred to maslahah 'ammah.
(iii) If the property acquired is mixed with halal and
haram, the property of the illegitimate property
belongs to maslahah 'ammah.
The shariah-compliant property position
shown above is the view of almost all traditional or
contemporary fuqaha traditions. Even the fatwa
institution that makes fatwa collectively also has the
same views. In this case, according to Yusuf al-
Qaradawi, the property acquired illegally is not to be
owned instead it belongs to maslahah 'ammah. This
non-compliant property cannot be used solely for the
purpose of self-interest, family or relatives.
Types of Shariah Non-Compliant
Property and Syubhah Property
After discussing briefly, the concept of shariah non-
compliant property, there is a question of what kind
of property can be identified belong to the category
of such property. To facilitate understanding in this
regard, we listed some types of shariah non-
compliant properties in several categories5: -
(a) Property acquired from the illegal stuffs.
This shariah non-compliant property
category refers to any property acquired from
transactions contrary to Islamic law such as riba,
gambling, liquor and other categorized illegal items.
Property acquired through transactions in usury
system including conventional insurance, gambling,
non-halal product sales and stocks or securities
based on usury are also included in this category.
(b) Property acquired through Sources that do not
fulfill the requirements of shariah.
This property refers to any type of asset that
was originally halal and legitimate, but it became
haram as a way of obtaining it which did not fulfill
the requirements of Islam. Syariah non-compliant
property in this category refers to any asset acquired
through fraud or criminal activity such as corruption,
malpractice, stolen property, breach of trust and
robbery.
(c) Mixed Property (Halal & Haram)
This type of shariah non-compliant
property refers to mixed property where some are
acquired from halal and illegal sources such as
business involving Islamic financial instruments and
at the same time has transactions and income from
conventional banking. If it can be identified from the
mixing of the property, the property obtained by the
illegitimate resource cannot be used for personal
purposes and it should be given to maslahah
'ammah.
(d) Unrecognized Property of the Source
Among the property often often unclear its
position refers to the property unknown to its source.
For example, properties such as money or gold are
found on the street or everywhere. If the owner is
known, it should be returned and if it is not known it
should be handed over to the baitul mall or
authorized party so that it can be used for maslahah
'ammah.
(e) Syubhah Property
Syubhah property refers to the status or
position of the dubious object or asset. Among the
examples of syubhah property are the payment of
late compensation of Islamic financial instruments
and ASN and ASB investment status. In this
category there is a fatwa that permits it and there is
also a fatwa that prohibits it. Although we are
generally allowed to choose any fatwa because it is
not binding unless it is gazetted, it is better that this
property is not used for personal purposes or
becoming our property. This is in line with the
hadith narrated by Bukhari and Muslim concerning
the status of the property of syubhah which means,
From Abu Abdullah An-Nu'man bin Basyir he said:
I heard the Messenger of Allah
Sallallahualaihiwasallam said: "Indeed the halal is
clear and the haram is clear and between both are
(there are) things that are syubhah, many of the
people do not know it. Whoever takes care of the
4 RKFQ 2070 SECTION 2 GROUP 1
matter, then he has cleansed his religion and honor,
and whoever falls into syubhah matters, he will fall
into the haram matter".
The Status of Shariah Non-Compliant
Property
To discuss the status of shariah non-compliant
property, there are two aspects that need to be
addressed. Firstly, do sharia non-compliant
properties need to be disposed of or can be used?
Secondly, if it can be used, can it be used for
personal purposes or it belongs to maslahah 'ammah
rights. 6
(a) Shariah Non-Compliant Property Cannot Be
Disposed.
If this sharia non-compliant property is not
recognized by the syarak, there is a question that is
very important to answer which is what can be done
about this property? Moreover, in the case when a
person who has a lot of shariah non-compliant
property does not know what to do. In this aspect,
the issue that will arise is whether this shariah non-
compliant property should be disposed of or is it
usable?
In connection with this issue, the fuqaha agreed that
this shariah non-compliant property should not be
disposed of or thrown away or wasted. Traditional
or contemporary Fuqaha views that this property
should be used or distributed for the maslahah
'ammah. The act of disposing of this sharia non-
compliant property also violates the rules of syarak
which prohibits idha'ah al-mal's actions to waste
property without being exploited. Even when
discussing the issue of riba-based non-compliant
property, Yusuf Al-Qaradawi in Fatawa Muasirah is
of the view that it is haram confidently to leave or
abandon the money in a conventional bank account
of riba. This is because the property is capable of
supporting the conventional consolidation and
strengthening of banks that are clearly haram in
Islam.
(b) Shariah Non-Compliant Property Is Maslahah
‘Ammah Rights
In conjunction with the concept of property in Islam
which only recognizes the halal property or property
acquired in a way that fulfill to the requirements of
shariah, shariah non-compliance property shall not
be the property of the person who owns or holds the
property. This shariah non-compliant property
belongs to the maslahah ‘ammah rights. This is
clearly spoken by almost all the majority of the
fuqaha including the fatwa institutions and
contemporary scholars.
The OIC International Fiqh Council, the European
Fatwa Council, the Majma Buhuth Egypt and the
Malaysian National Fatwa Council have agreed to
allow this shariah non-compliant property to be used
for maslahah ‘ammah. This shahriah non-compliant
property can be distributed to faqir, poor or used for
maslahah ‘ammah such as school construction,
public infrastructure and so on.
The scholars of Hanafi, Maliki and Syafie also think
that shariah non-compliant properties can be used
for development and usefulness that benefits the
public as well as the poor in the government's
discretion. Even Imam Al-Ghazzali in his book Ihya
Ulumuddin also thinks this shariah non-compliant
property is haram for its owner but it can be used by
the poor faqir. This is clearly supported by Yusuf al-
Qaradawi in Fatawa Muasirah which sees that
shariah non-property property cannot be the
property of its owner but it should be handed over to
the poor faqir or donated to goodness projects for
maslahat ‘ammah.
The Management of Shariah Non-Compliant
Property
(a) Shariah Non-compliant Property Should Be
Returned to The Originator
If the property is a property of robbery, stolen and so
on, then the property must be returned to the real
owner. If the owner has died or cannot be found,
then the property must be returned to his heirs. This
is synonymous with the views of Imam al-Nawawi
in the solution of syariah non-compliant property
which is to be returned to the original owner if
known or his representative or beneficiary if it
involves death.
(b) Shariah Non-compliant Property Used for
Infrastructure Construction
If the owner of the property is unidentifiable, then
the property must be surrendered or spent on the
general maslahah ‘ammah of the Muslims. These
include the construction of public infrastructure such
as roads, schools, halls, bridges, transport vehicles
and mosques. Not only that this property can also be
used for infrastructure maintenance purposes
including environmental preservation and sanitation
of public areas.
(c) Shariah Non-compliant Property Used to
Combat the Illegal Sector
5 RKFQ 2070 SECTION 2 GROUP 1
Referring to shariah non-compliant property
acquired through illegal sources such as usury and
gambling. There are scholars who view that such
property should be used to combat this illegal sector.
For example, gambling monies should be used to
combat the gambling sector and the money from
usury should be spent on efforts to overcome the
conventional financial sector.
Touching on this issue Imran Hossein says that
usury or gambling money can only be used to
combat the conventional financial sector in any way.
These include the publication of books explaining
the ban on usury, funding research that provides
alternatives to conventional finance and establishing
institutions capable of overcoming conventional
finance. Although Yusuf Al-Qaradawi does not
require this property to be used only to combat the
illegal sector, he says it is haram to let and leave
money in conventional bank accounts without doing
anything. This is because the act of letting the money
without being issued will not only help the
development of conventional banks but it can lead to
abetment practices with illegal activities.
(d) Shariah Non-compliant Property Distributed to
Poor Fakir
If this shariah non-compliant property is not used for
infrastructure construction or to combat illegal
sector, such property can be spent or distributed to
the poor. This property can also be given to orphans,
seniors, disabled, muallaf, single mothers who need
and students who need funding. This people do not
have to be upset to accept this shariah non-compliant
money even though it is known to be from illegal
sources because scholars have agreed to say that
they can use it because it falls in the maslhat ‘ammah
category.
(e) Shariah Non-compliant Property Given to the
Welfare Parties
Apart from the above, these sharia non-compliant
properties may also be provided to any welfare body
including baitul mal, charities, non-governmental
organizations and da'wah institutions. These
institutions need to ensure that all shariah non-
compliant property received is spent for maslahat
‘ammah purposes such as the efforts of jihad in the
path of Allah, support for the development of
Islamic da'wah, preparation of preachers, the
publication of religious books and so on.
Meaning of Riba
Riba is originated from the Arabic word, which
is derived from the verb of ‘raba’, which means ‘to
grow’, ‘expand’, ‘increase’, ‘inflate’ or ‘excess’. In
English, riba is known as ‘usury’ or ‘interest’. In the
shari’ah, riba technically means a sum that is added
to an ordinary price, charge or payment that must be
paid by the borrower to the lender along with the
principal amount as a condition for the loan or for an
extension of time. Meanwhile, in the view of fiqh,
riba refers to an increase in one of two similar things
being exchanged without this increase being
accompanied by a return.
View from 4 major schools
The Hanafis school stated that the volume or
weight plus the oneness of kind is the legal reason
that cause the impermissibility excess amount of
riba are known. When both of these conditions met,
both selling with surplus or on credit are forbidden.
The legal cause in the four commodities mentioned
in the hadith (wheat, barley, dry dates and salt) is the
combination of volume and like kind and in gold and
silver , the legal cause is the combination of weight
and the like. Riba will not occur unless the two
qualities are combined together, which is known as
the amount and the kind for instance, is the amount
specified by the Sharia’a as being measured or
weighed. As for the example, imagine the sale of
gold for gold. If one of the golds exceeds the other,
the excess is considered riba because each of the
gold is considered as a weighed good. This is what
being meant by the term “amount.” According to
this, riba occurs only if the commodities are fungible
(goods contracted for without an individual
specimen being specified, which is replaceable by
another identical item that is mutually
interchangeable). As for non-fungible commodities,
such as mansions, property, jewellery, and animals ,
riba does not occur within this type of goods, and it
is permissible to trade a large or small number or
amount of the same item. Not only that, those non-
fungible items must be in the same size and amount
which it cannot be weighed or measured. The source
of this authentic hadith is narrated by Abu Sa’id al-
Khudari and ‘Ubada ibn al-Samit, that the prophet
(peace and blessings of Allah be upon him) said7:
“Gold for gold in equal amounts, hand in hand, and
any surplus is riba; silver for silver,in equal amounts,
hand in hand, and any surplus is riba;wheat for
wheat, in equal amounts,hand in hand, and any
surplus is riba; barley for barley , in equal amounts ,
hand in hand, and any surplus is riba; dry dates for
dry dates, in equal amounts, hand in hand, and any
surplus is riba; salt for salt, in equal amounts, hand
in hand , and any surplus is riba.” As a result, surplus
riba is only specific to the fungible items which can
be measured and weighed only. In other words,
those non-fungible items which is measured by
length or counted is not considered riba. The school
6 RKFQ 2070 SECTION 2 GROUP 1
of Hanafis support this statement that claims the
legal cause of riba is the measure of volume or
weight of that particular commodity. It must come
with a reason that states the equality or similarity in
the two counter-values as a valid condition for the
sales.
The Malikis school holds that the legal cause of
the impermissibility of increase in gold and silver.
This is because they are considered as valuable
currencies which is used for daily basis to buy foods.
The legal cause is different in each of credit riba or
surplus riba. The reason of the impermissibility of
credit is because it is edible and not for the sake of
medical treatment, regardless whether it is nutritious
and storable, only cucumber, watermelon, lemon,
lettuce, carrot, and taro, and different kinds of fresh
fruits such as apples and bananas. Meanwhile, the
legal cause of the impermissibility of surplus riba is
bounded to two causes, which it is nutritious and
storable. When a person usually receives nutrition,
such that his health being weakened. This matter is
including the all sorts of grains, dry dates, raisins,
meats, milk, and milk products. What makes it
considered as nutritious is when it makes those food
better, such as salt and its likes of spices, vinegar,
onion, garlic and oil. When it is stated that it is
‘storable’, that means the food does not spoiled after
being stored for a long period of time, with no
particular time limit. According to the strongest
opinion of Maliki school, rather, the limit is
delineated according to the customary length of time
for that particular food for product. Ruling of the
riba’s impermissibility is perceivable because one
cannot cheat and deceive one another, also their
wealth can be preserved. Moreover, it is also needed
for the sake of survival, which in this context is
known as nutritious foods, such as wheat, rice, corn,
vetch , dates , raisins , eggs , and the seven legumes
(which are lentils, cowpeas , chickpeas , lupines ,
broad beans, chickling vetch, and peas ). As an
additional fact, Imam Malik considers wheat, barley
and rye, (which is a sort of peel-less barley) as one
kind. He also considers corn, millet, and rice as one
kind. Consequently, selling an amount of wheat for
a different amount of barley is not allowed.
However, it is allowed for wheat and corn. For meats
for instance, Imam Malik divided them into three
categories: first, meat and quadrupeds; second, meat
of birds, third, meat of fish.
Similar to Maliki’s school, Shafi’I school also
claims that the legal cause in gold and silver is
because of their features which having monetary
value which can be used as payment for goods
regardless whether the gold and silver meaning, raw
gold or raw silver. The cost of any one’s handwork
done on the gold or silver is not affected on its’
value. For instance, a man pays some dinars for
jewellery. In this circumstance, the consideration
falls to the equality of the amount, and not the value.
The legal cause being monetary value is limited only
to gold and silver, other coins and other types of
currencies and objects of value, even if such
currencies and objects are what are used to assess the
value of objects. All this is because those vessels,
raw ores, and jewellery which are made of gold or
silver are what are used in riba , and are not what are
used to evaluate the cost of goods , this is also the
proof that if currencies (other than gold and silver)
come into circulation, it is not considered riba.
According to the Shafi’I scholars, legal cause for the
impermissibility of riba is edible and has a monetary
value. Meanwhile, for those things which is not
edible such as plastics and paper, it is permissible to
sell one for its like kind for a disperate amount, for
trading objects, because these materials are not
considered currencies or of intrinsic monetary value.
Shafi’s scholars argues that if a legal ruling includes
in its wording a derivative noun, this indicates that
the meaning from which the noun is derived is itself
the legal cause of the ruling. 9Hadith of Sa’id ibn
Abdullah in which he states, “I used to hear the
Prophet of Allah (peace and blessings of Allah be
upon him) say , ‘Food-stuff for food-stuff, for equal
amounts’ falls under the rubric of this principle ; for
the hadith makes clear that edibility is the legal
ruling , since “foodstuff” is derived from “to feed”.
This includes all edible items, it is a reasonable
statement as it tells importance of the four kinds as
mentioned in the hadith, since food is a must for
survival of life. Likewise, monetary value is a
suitable meaning, because it tells the importance of
people’s need for the two valued currencies (gold
and silver) or which takes their place such as coins
or other valid currencies. As for the condition of
‘amount’ as stated by the Hanafi scholars, it does not
tell of any importance in these things.
Last but not least, the view from school of
Hanbali. Generally, there are 3 narration of the ‘illat
of riba regarding to this school. However, the most
famous narration is similar to that of the Hanafi
School, which is volume or weight. Commodity
which is measured by volume or by weight if
exchanged for like kind, whether it is a foodstuff or
not, such as grains, glasswort, flowers, cotton, linen,
wool, henna, safflower, iron, copper, etc, is
considered as riba. However, it is not considered as
riba if transaction of foodstuff is not measured with
volume or weight, which the food must be the same
kind. This opinion is based upon the saying of the
Prophet (peace and blessings of Allah be upon him)
related by Ibn ‘Umar, “Do not sell a dinar for two ,
nor a dirham for two , nor sa’ for two , for verily I
fear that you will fall into riba ,” A man then stood
and said , “o’Messenger of Allah , what do you say
of a man who sells horse for two horses , and a
highbred camel for two ordinary camels?” The
prophet replied, “There is no harm therein, so long
as it is hand in hand.” Anas R.A relates from the
7 RKFQ 2070 SECTION 2 GROUP 1
Prophet, “that which is measured by volume,
likewise, if, however, the types are different, there is
no harm therein.” Hanbali scholars hold that surplus
riba is forbidden in all commodities which are
measured by volume or weighed for their like kind,
even though it is only in a small amount. The second
narration is the same as the position of the Shafi’i
School. The third narration states that the legal cause
for the impermissibility of riba in things other than
gold and silver is the edibility of the food, if they are
not measured by volume or weighed, such as apples,
pomegranates, plums, watermelons, pears, quince,
cucumbers, nuts, and eggs . This also applies to
dealing with non-edibles such as saffron, flowers,
iron, lead, etc. It is not considered riba unless it is
measured by volume or weighed of food and drink.
To simplify everything, school of Hanafi said riba is
the sale of goods weighing or volume similar items,
such as gold, silver, wheat, dates, salt and dried
grapes. In other words, if the goods of the like of the
above mentioned items, such as wheat with wheat
weighed for sale and there is addition from one of
them,it becomes riba fadl. Meanwhile, according to
school of Maliki, gold and silver is the price, while
on illat riba in food, they differ in opinion in relation
to riba nasi'a and riba fadl. School of Shafi’i stated
illat riba on gold and silver is the price, i.e both items
are priced or being priced something. So, money,
though not made of gold, money can be a price. Last
but not least, school of Hanbali stated there are three
history of illat riba, the most famous is similar to the
opinion of school of Hanafi. Only Hanafi scholars
forbids the similar kind of sale that weighs a date.
Purifying Tainted Money (From Sources
of Riba)
Money or property that has been polluted with
the presence of riba in it is considered illegal money
and property. Therefore, illegal property cannot be
used for the owner's own benefits. Illegal property
here is a property that is owned in a way that is not
approved by the Shari’a. It includes money that was
earned from loan, proceeds with riba transactions,
stolen property, gambling, breach of trust, bribery,
illegal business revenue, profits from sale of stolen
goods, proceeds of illicit investment profits,
proceeds from business processes of monopolistic
process and much more. So we can see here that riba
is a part of illegal property. Therefore, money or
property of riba should be managed by the
guidelines of Shari’a that was prepared by muslim
jurists and scholars. The first modus operandi is to
dispose that illegal money or property. Sheikh
Atiyyah Saqar (former Head of Fatwa of Al-Azhar)
said, it is compulsory to dispose the illegal property
once repented in the following manner8: Return the
property or money to the owner of it (once you have
know it) or to his heirs. If fail to recognize or find
the owner, it must be handed over to faqir for the
separation of it from the holder and this action is not
for the purpose of seeking reward from Allah.
According to the Sharia, if a property was obtained
from the illegal sources is known to its owner (such
as a stolen property and known to its owner), the way
to dispose of it is to return the stolen money to his
master and to apologize and repent to Allah.
However, if it fails to return to its owner, let him
return it to his heirs. If it fails, then the property is
charitable. Similarly, the assets that arise from the
usury/riba of the loan, then it must be returned to the
borrower who is levied. If the property does not
belong to a person but belongs to a group, the
alternative to return it is to include in the school
account, foundation or company, or other means by
paying the school and company's water bills as much
as the stolen one. It is indirectly calculated returns to
the owner of the organization. Dalil returns the
illegal property known to its owner is derived from
the hadith of the prophet that he said :“Whoever
abuses the honour or whatever (property) of his heir
shall ask him for a halal on this day so he asks him
to be halal from him today so do not stay a dinar or
dirham as well. (If it is not on the Day of Judgment)
if he has a good deed, he will be taken to his good
deeds with the tyranny he has committed, and if
there is no good then he will be liable for the evil of
the person (whom he sinned).” 10(al-Bukhari's
history with Fath Al-Bahri, 5/121). There is a
dispute over alms or donation for money that is
illegal because according to syariah law, illegal
property is not owned by the holder, therefore why
it is used for charity to get the reward? it is true that
one of the requirements for the reward of alms
wealth is to have it legitimate and sincere intention.
However, in the case of this illegal property, it is not
intended to reward him but to abide by one of the
shari'a of repentance and to escape from exploiting
the illegal property for himself. Meanwhile, the
reward from the donation will be obtained by the real
owner of the property whether it is still alive
between life or has died. One of the argument that
require ‘donations’ for the unknown money of the
owner is the story of the Caliph Abu Bakr when he
bets (ealy days of Islam) with a musyrik (who
challenged the truth of the Quran from surah Ar-
Rum verses 1 and 2 which signals the fall of Rom).
When the Roman Empire was totally collapsed,
Caliph Abu Bakr acquired the property of the but it
was illegal as it has the elements of gambling. (The
purpose of Caliph Abu Bakr is just to prove the truth
of the Qur'an). when he came to the Messenger of
Allah and narrated it, the Messenger of Allah
insisted: "This is dirty, alms it," After this incident,
then the command on the ban of the gambling is
entirely for mankind even for the disbelievers. The
story clearly indicates that the prophet did not ask
the property to be inflicted upon the kafir, but it was
reserved for the needs of the people. Donations for
8 RKFQ 2070 SECTION 2 GROUP 1
illegal money cannot be returned to his owner but
should be handed over to faqir. That is the view of
the four majors Islamic mazahib. Next is hand over
the illegal money to Baitulmal. Scholars from four
major mazahib have agreed on the obligation of
disposing of illegal property by donating it.
However, they differ in opinion in determining
whether only the two groups are entitled to receive
it or the property may also be handed over to any
party that responsible for managing faqir or
baitulmal. Imam al-Dawudi (403 H) said that the
affairs in this regard are optional, and there is no
prioritization to any poor faqir or Baitulmal.
Meanwhile, while most Syafi’e scholars argue that
illegal property which his owner was unknown,
should be given to a just ruler (baitulmal) to be kept
until his owner is known for his return. However, if
there is no ability to know its owner, the property
will be owned by the baitulmal and will be used for
public good use. This has been asserted by Imam
Zakaria Al-Ansari Al-Syafie . Ibn Taymiah explains
the Hanbali school, Abu Hanifah, Maliki and most
salaf think that such property should be given to
anyone who is more important (to manage it). This
view is also shared by Imam al-ghazali who states
that it can be handed over to the government to
determine the best use of the property as the use of
state defense and so forth. Imam An-Nawawi added,
if the government is not sure which is more
important then it is given to the faqir. However,
some of the top scholars in this period such as
Sheikh Mustafa Az-Zarqa and Sheikh Faisal
Mawlawi do not agree with this view and limit this
property to poor faqir only. In conclusion, based on
the hadith of the prophet who directed the
illegitimate property of the bribe taken by Ibn Al -
Latbiyah to be handed over to baitulmal. The goat
meat given to the Prophet without the permission of
his master then asked to be given to to the prisoners
of war. More accurate point of view in this regard is
by not limiting this illegal property to the faqir only
but may dispose the property in one of the following
ways: giving the property (which the owner remains
unknown) to faqir to cover their basic needs, or give
it to the government via zakat or trustworthy
charities to build mosques, orphanages, aid to
disaster victims and so forth. it is stated that illegal
property could be used for the needs of public.
Disposing illegal money from the illegal
investment, regardless which it was based on usury,
riba , interest and so on. When a fast-paced
investment through the internet was banned by the
national fatwa council on April 12, 2007, many
people wondered what is the best way to dispose the
illegal property that they acquired.In this case, the
initial capital of the investment can be taken back.
This is because a transaction of riba transactions is
not recognized in Islam. it coincides with the
meaning of the Quran: means: "If you repent, then
let your capital be yours," (citation from surah Al-
Baqarah verse 279). It is clear in this verse that Allah
said if someone has already repent to Him (from the
acquisition of riba), the capital (initial capital)
belong to yours. Based on the decision of the World
Islamic Fiqh Union (Majma Fiqh Islami) the
investment agreement becomes void when any party
promises a capital guarantee or any profit set. This
means that the capital is not clear and the investor
deserves it. If the company determines that the
contract cannot be cancelled in the mid-way, then it
is legally required to wait for the reinstatement of the
capital. No less or more. So how about the ‘illegal’
profit that has been acquired? The scholars of four
major schools have agreed on the obligation of
disposing of illegal property by donating it as soon
as possible. Meanwhile, Sheikh Atiyyah Saqar (the
former head of Lajnah Fatwa Al-Azhar) said, "It is
obligatory to dispose of illegal property when
repenting. It can be done by returning the property
to his master (if known) or to his heirs, and if not
known, poor faqir to separate from it rather than
merit the reward (from the surrender). (Min Ahsanil
Kalam Fil Fatwa, page 2/65). The main arguments
of the scholars in the case of donating money such
as these are the various hadiths of the Prophet (peace
be upon him) narrated by Abu Daud with good
sanad, hadith about the defeat of Rome and the
victory of betting made by Abu Bakr As-Siddiq and
also athar Ibn Mas'ud narrated by Al-Bayhaqi (
6/188) and more. The question is , who deserves the
charity from this illegal money / property ? As we
have discussed before, it shall be handed to the faqir
and the poor. The majority of Islamic schools
including past scholars have given the fatwa for
individuals (also for his family) who really are in this
state of use for themselves if they are belong among
the poor and the true faqir (not merely allegations).
At that time , the use of the dirty property was no
longer dirty. But it must be accompanied by feelings
of repentance and repentance from past deeds.
Imam Syafi’i, Imam Maliki, Imam Hanafi and
Imam Hanbali has come out with the same general
opinion / ruling that illegal property/ money must be
disposed by lending charity . There are also some of
the minor scholars voiced out their view and having
the same opinion to dispose the illegal property by
giving a charity. However, there are some minor
conflicts between them pertaining to the different
opinions in determining whether only the two
groups (faqir and poor) are entitled to receive the
illegal property/ money or it may be handed over to
any purpose of public good, which is considered as
charity too. All in all, these different opinions are
just the minor conflict pertaining to ‘whom’ shall the
illegal property must be given . At the end of the day,
it is still the matter of disposing the illegal property
by giving out the charity.
9 RKFQ 2070 SECTION 2 GROUP 1
Preffered view
The preffered view is from the view of
most of the scholars from school of Syafi’i which is
the illegal property or money shall be given to the
baitulmal , because this institution is obligated to
perform their amanah to take care of the Islamic
welfares . So, it is best to give it to them so they can
do their responsibility to divide the given property
for the Islamic society and infrastructure such as
Mosque and Musolla. In addition, Baitulmal is a one
big professional institution, which they could handle
the property/money in the most relevant and proper
way according to the compliance of Shari’a . Just
imagine if the property / money was large in terms
value and number . If it was given to the random
people who don’t know how to handle it properly ,
then it would be a chaos later on . That is why we
have agreed that it should be handed to the
institution of baitulmal to ensure that the illegal
money/ property are safe in the good hands . To
summarise up everything , money or property from
the acquisition of riba is considered as tainted money
, which is illegal in the law of Islam . The only
legitimate way to separate the holder with his illegal
property (which is polluted by riba in this context) is
by the method of disposing it , which that property
will be given out for charity, but he was not entitled
to seek reward from Allah for that action because the
purpose of the charity is only to separate (get rid) the
illegal property from the holder . So, the context of
‘purifying’ the money / property from the result of
riba does not exist , because the illegal property stays
illegal and stays dirty. What is obligatory on illegal
property is to return the property to its owner, if
possible to know who the owner is. Otherwise, it is
obligatory to remove all the illegal property from its
own possession, in order to free himself from illegal
property, and not intended to give alms to seek
reward. This is agreed between all scholars of
various schools. (Al-Mausu'ah al-Fiqhiyah, 23/249).
To end this subtopic, property and money of riba can
only be ‘disposed’ , but context of ‘purifying’ is
rather to the soul of one’s who used to make sin to
Allah SWT by performing the methods mentioned
above.
The Definition of Bribery
The word bribery is correlate with the
word al-rishwah that can be found in Islamic text.
The origin words, al-rishwah or al-rashwah (the
former being more common) means al-ju’l which
means a gift, payment, or commission11. Ibn al-atsir
view the word al-rishwah as al-wushlah ila al-hajah
bi al-mushana ah which means sending something
desired for performing something. Al-rishwah also
can be defined as a gift of money or object given to
someone in order to get something desired12 for
exchange. Al-rishwah also come from the word al-
risha which means a rope that used to draw water
from a well. Both of the word has related meaning,
namely, to use something in order to get something
desired.13
As we can see from the definitions that
given above by scholars, some scholars define the
word al-Rishwah in a narrow sense and others in a
wide sense. For the narrow sense, it means ‘to give
something to someone in order to invalidate the truth
or establish falsehood in order to obtain what one
wants. Whereas, for the wide sense, it means ‘to give
something to someone who is a good man to
establish the truth and dismiss falsehood or to reject
the truth and establish falsehood in order to reach
one’s goal.14 The final definition is the most precise
because it correlates with the conditions of a
definition, namely words that are inclusive yet
exclusive. Next, this final definition consists of all
the part of the concept of al-Rishwah and refuse
other definitions. From all of those definitions, al-
rishwah correlate with the word “suap” in Malay, or
“bribe” in English. Hence, the word al-rishwah is
better understood as bribery. People who give the
meaning of al-rishwah as corruption are not totally
wrong, because of corruption becomes narrower, by
referring only to the issue of bribery. On this day
corruption is not limited to bribery this is because
the word corruption can become more general than
that.15
The status of bribery
There are two actors for the action of al-
rishwah or bribery, that are al-rashi and al-
murtashi.16 Al-rashi is the person who give the bribe
while al-murtashi is the person who receive the
bribe. Bribery is prohibited by religion, and the
status is haram. Based on Surah al-Baqarah, verse
188:
Initially the verse mainly refers to the
prohibition on taking other people’s property in an
illegal way. As a result, the verse refers to one way
taking other people’s property, namely by wa tudlu
biha il al-hukkam li a kulu fariq min amwal al-nas bi
al-itsm (giving something to a judge in order to take
someone else’s property in a sinful way).
The practice of bribery strictly forbade by
Prophet Muhammad S.A.W. The related hadith is as
follows: From Abd Allah ibn ‘Amir, who narrated:
10
The Prophet dislikes those who give bribes and those
who receive them.
From that hadith, la’nat means reprobation,
that is, words of disapproval. La’nat or reprobation
can be occurred when someone has made a major
mistake. According to that hadith reprobation is
emphasized at those who give bribes and also those
who receive them.17
As stated by al-Hasan, al-Sya’bi, Jabir ibn
Zaid and ‘Atha’, it can be allowed for a person to
give something in order to protect himself and his
wealth when he fears dangers. There is a hadith tells
that Ibn Ma’sud was stopped in Saby, located in the
al-Habshah territory, and he must pay two dinars to
be allowed to continue his journey. From this
situation it is allowed to pay bribe but only for the
giver (al-rashi) in order to defend his rights, but the
person who taking the bribe, al-murtashi, is consider
as the one committing the wrongdoing, which is
haram.17
According to Al-Syaukani, he has a
different opinion on the topic, which is the special
permission given to people who are trying to form
their rights by giving bribes to a judge is a baseless,
because the reason for making it allowed is not
known. The only thing that we know, from him, is
that bribery is haram in itself in whatever form.
As in the case of Ibn Ma’sud the first opinion is
correct if al-rishwah occurs in a dire situation, there
is no alternative and it is outside the field of justice.
Based on the generality of the hadith about the
haram status of bribery, the second opinion is correct
if al-rishwah occurs in the field of justice.
The negative effect which is greater (al-mafsadah)
than the positive effect (al-mashlahah), will create if
bribery is allowed in the realm of justice though to
establish the truth.18 The positive effect is that
people can form the truth to which they are qualify
with the use of bribery; the negative effect is that this
is opposite to justice and the supremacy of law.
In the end, there will no longer be any medium to
establish the truth and society will no longer trust the
law. For this reason, bribery must be forbidden in
any form and manner this is because to avoid the
negative consequences. A jurisprudence approach is
described as dar u al-mafasid awla min jalb al-
The Punishment
RKFQ 2070 SECTION 2 GROUP 1
mashalih (rejecting damage is more important than
reaping benefits.19
Bribery considered as crime because the action it is
forbidden by Islam. The action is forbidden by
Islamic law because it causes harm to others,
individually or collectively, regarding their mind,
wealth or other things. To prevent this action, the
person who involve in this action is threatened with
punishment, after death and in this life.
From perspective of Islamic jurisprudence, the main
purpose of this punishment is to protect public
interest. Besides, the general purpose of this
punishment includes of zawajir or jawabir. The
meaning of zawajir is the punishment that serves to
make the doer realize to not repeat their crime and
also to teach others to fear for committing that crime.
Zawajir emphasized on the worldly affairs. Jawabir
on the other hand emphasized on the punishment in
order to save the criminal from punishment after
death by eliminating sin. Jawabir concerned with
spiritual matters.
There are two categories of punishment in Islam:
That is punishment mentioned in the Qur’an and the
hadiths, and punishment that are not. For
punishment that mentioned in Qur’an and the hadith
consist of hudud, qashash, diyat, and kafarah. Others
are ta’zir judgements, that are the judgement
determined based on ijtihad or reasoning since
Qur’an and Sunnah did not clearly state the
punishment for those cases. Bribery or Al-rishwah is
a crimes jarimah because the actions are forbidden
in Islam and must be punished. As stated in Qur’anic
verses that mentioning al-rishwah in Surah al-
Baqarah (2) verses 188:
In order to prevent them from doing it again, not
only moral punishment in charged but also social
punishment which can be felt physically and feared
in this world, to instil fear in the perpetrator.
In Qur’anic texts, there are not clearly defined for
the punishment for the acts of al-rishwah. But in
classical texts of Islamic jurisprudence define ta’zir
judgement. Ta’zir judgement based on the decision
of judge who decides on the punishment based on
reasoning and considering the seriousness of
offences and its impact.20
Factors That Contribute to Bribery.
There are two factors that contribute to corruption
that are individuals and the system. In Malaysia for
11
example, some Muslim embrace the of capitalism,
but they are forgetting that they must follow it
according the principle of the Islamic religion. In a
society they admire materialism, and happiness
rated by the value of the possession gathered and
owned. From this type of society everything was
measured with money.
All the values are measured with money including
happiness, respect, social status, intellectualism,
well-being, and others. As a result, without worrying
whether the money is obtained in a halal or haram
manner, all the means are justified to get as much
money as possible.
They are no longer feel sorry or guilty and lose all
control in the face of bribe. At a certain level, they
consider bribe as a legitimate way to make a living,
ensure society’s stability, and gain political support
and influence.
The second factor is the system. The present by
individuals to spread the plague of bribe does not
only stand by itself.
In a capitalist society, which really support
individualism, the personal characters of the
members of the community are not developed
correctly. Individuals that value freedom as a source
of happiness will shape, if the whole system that
govern life, such as education, social values, the
economic and the social system that are
systematically put in place.
This make society becomes individualistic and
materialistic. In such a society that support
materialism, the rise of bribe is not surprising. The
capitalist system teaches the concept of the
separation of religion from the worldly things. Some
people can practice religion but only in individual
but when deals with state affairs they put religion
aside or used excuse to justify decision.
The capitalist system built an environment that faith
is not important at all. A weak form of punishment
is one of the reasons for the lack of effectiveness of
effort to eliminate bribe. “A rotten tree will produce
rotten fruit, and the same goes for a rotten system.21
Purify property come from bribery.
In brief, from all that we had discussed, all the
property that acquired through bribery is considered
as haram. The question appeared, when some people
RKFQ 2070 SECTION 2 GROUP 1
wondering can this money(bribe) be use for a good
way.
Are these moneys have to be disposed or burned and
throw into river or ocean? Scholars almost agree to
dispose as mentioned above, without give benefit to
anyone is contrary to various dalil, Maqasid Syariah
and logic of reason. This is because the sin of
acquiring tainted money is hukmi and not
“aini(jisim).22 Unlike if the belonging were
considered as haram(aini) such as a bottle of wine, a
bowl of pork soup, a piece of goat meat that did not
slaughter. At that time, the new law was obliged to
dispose of it by removing and banned from being
given to anyone, including selling it, making
jewellery, even to non-Muslims.23 Whereas, the
property that considered as haram(hukmi) such as
gambling, corruption, stealing, riba and others
which are owned by themselves are illegal to be used
for themselves and their family.
The way to dispose of it are to give it to Baitul Mal,
the centre of zakat or to the faqir and miskin.
Every tax revenue and income which are haram, the
government are responsible to give to the faqir
miskin or to the public benefit according to the
amount from that income. This is because the illegal
property, if left untouched in the individual's
possession, will undermine the blessings of his life
and his sustenance.24
Letting the state rely on illegal proceedings without
proper justification from the perspective of sharia
will plunge leaders into humiliation, sin and
vengeance in the hereafter.
The justification mentioned above is that an Islamic-
led government is permitted to approve something
accepted by other religion, but conditions are
specific to the locals and do not involve Muslims.
For example, in some religions, alcohols are
allowed, hence the Islamic rulers respect the truth,
hence the ulema say it is imperative for the
government to approve the opening of a specialty
store for them (non-believer) only. That is the name
of the syariyyah siasah. Thus, the status with pigs
and non-slaughtered foods, as their religion allows,
the Islamic government must allow the opening of
pork shops, pig farms and stalls selling non-
slaughtered foods after applying for admittance
which is permissible but limited and cautious. At the
same time, the government may impose a regular tax
on such licenses and businesses
12
Money from illegal sources can be doubly altered if
not properly passed. The best channel according to
the argument and discussion of scholars is a
common benefit, faqir and miskin. These people are
always required by Islam to receive money from any
revenue for their capacity as faqir, miskin and
needy.25 Hence, they are the recipients of legitimate
government and individual contributions from the
point of view of Islam. There is no sympathy for
them to accept and no longer illegal. The way to
dispose this money is intended to purify the
possession of illegal property whether it is an
individual or a government.
It aims to bring blessings and their repentance. To
perform the repentance, illegal money and property
have to be channelled or returned to the victim (if it
is stolen from him). However, if the original owner
is unknown, the permitted beneficiaries are only
public, faqir and miskin.26
The scholars of the four schools have agreed on the
obligation of disposing of illegal property by
donating it. However, they differ in their opinion in
determining whether the two groups were entitled to
receive it or the property could also be handed over
to any faqir miskin or Baitul Mal.27 Imam-ad-
Dawudi said that the dealings in this regard are
optional, and there is no prioritization to any faqir
miskin or Baitul mal While most Syafie scholars
argue that illegal possessions that their owner do not
know should be given to a just ruler (Baitul Mal) to
be kept until the owner is known for his return.
However, if there is no ability to know the owner the
property will be owned by Baitul Mal and will be
used for the benefit of the public.28 Ibn Taymi
explained the schools of Hanbali, Abu Hanifia,
Maliki and most salaf think that such a property
should be given to anyone who is more important.29
This view is also shared by Imam al-Ghazali which
states that it can be handed over to the government
to determine the best use of the property as the use
of state defence and so forth.
Imam An-Nawawi added, if the government is not
sure which is more important than it is given to the
faqir and miskin. However, some of the top scholars
in this century like Sheikh Mustafa Az-Zarqa and
Sheikh Faisal Mawlawi did not agree with this view
and restricted this property to faqir and miskin
only.30
Gharar
RKFQ 2070 SECTION 2 GROUP 1
Gharar means jeopardy, danger and
hazard (Siddiq, 1997). Ibn Manzur (1967) as cited
in Nordin (2014) defined it as someone who has
been deceived by something or someone. In the
technical meaning of the word, jurists give different
definitions based on how they view this subject.
Some scholars emphasize on the existence of the
object while some on the ability to deliver it.31
Sarakhsi views gharar as “something that
is concealed in its result” such as selling milk in the
udder and selling a runaway slave (Buang, 2000,
74). In other words, the result of the contract is not
sure if it can be completed or not. Gharar viewed
by Imam Malik is when a buyer relies on
speculation of an item’s existence and its features
such as selling a fetus where a buyer does not sure
when it is born and the price is based on the
speculation of its features if it is born (Buang,
2000, 67). Ibn Rushd viewed it is when a buyer has
to suffer damages as he lacks of knowledge of an
object or its price. Thus, he emphasizes both parties
must have sufficient information on the item, the
price as well as the currency, the date and venue for
delivery, and its performance in long term (Nordin,
2014, 16-17).32
Imam Shafiʻi defines gharar as the
inability to deliver the item such as the sale of a
runaway slave (Buang, 2000, 69-70). Meanwhile,
Shirazi, gharar is folded in its nature and concealed
in its consequence and divided gharar into non-
existent item, inability to deliver item, the item is
not seen during contract session, and want of
knowledge (jahl) in the measurement and amount
of the item and price (Buang, 2000, 84-85). Ibn
Taymiyya defines gharar as an element brings
uncertain in the result of a contract and it has three
elements: non-existent object, inability to deliver
and ignorance of characteristics or price of an
object (Buang, 2000, 89). On the other hand, Ibn
Qayyim says gharar happens when the seller could
not deliver the item, even if it exists during the
contract such as the sale of a runaway slave
(Buang, 2000, 90).33
Sources of the Prohibition of Gharar
This prohibition is mentioned in detailed in
the Sunnah of Prophet Muhammad (S.A.W.). The
Apostle of Allah exclusively prohibited Muslims
from practicing the form of transaction practiced by
the Pagans. It was narrated by Abu Hurairah that the
Prophet “forbade a transaction determined by
throwing stones, and the type which involves some
uncertainty” (Muslim, 21:8). Another hadith which
prohibit gharar where the sale of goods that does not
13
in the possession of the seller, reported by Ibn Abbas
the Prophet said, “he who buys food should not it
Element of Gharar In the Sale Contract
until he has taken possession of it” (Muslim, 21:38).
The Prophet forbids his followers from selling
unripe fruits where there is gharar in the transaction.
The saying is reported from Imam Malik from Amra
binti Abd al-Rahman where the Prophet forbids
selling fruits until the fruits until clear of blight
(Muwatta‘ 31:12).
Before going to the ways on purification
gharar income, it is better for us to know what the
elements lead to gharar in trading. There are three
major elements that can lead to gharar in a certain
sale. Firstly, the non-existent of an item is a strong
element of gharar that can nullify a contract. Imam
Nawawi views this matter a bit lenient especially in
the case of necessity and when gharar is hard to
remove except with great difficulty. Similarly, Ibn
Rushd views when an item’s future inception is
indisputable and is continuously produced with high
rate of success, selling the item when it is yet exist
is permissible (Saleh, 1992, 67). Ibn Qayyim
emphasizes more on the ability to deliver the item to
the buyer rather than the existence of the item itself
(Saleh, 1992, 67).
Islam does not prohibit the sale of non-
existent item as long as there is no gharar in it. This
is the view from Dr. Abd al-Razzaq Sanhuri where
the item is for sure will exist in the future, then there
is no element of gharar (Saleh, 1992, 68). In
addition, Dr Subhi Mahmasani expands this view to
services contract such as construction workers,
power of attorney and guarantee of debt contracts
with the condition of the service contract must be
specific on the purpose and on the payment. For the
purpose, either the task or the duration is highlighted
as highlighting both make the contract void (Saleh,
1992, 68).
The non-existent is expanded to the price,
too. As both parties conclude a contract, price and
the currency, preferably in circulation within the
country, must be specifically mentioned in the
contract. However, it is also sufficient to pronounce
the amount without specifying the currency as
viewed by Hanafi, Maliki and Shafi‘e schools, while
Hanbali school prefers to use the average currency
(Saleh, 1992, 79). In the case of a country has more
than one currency yet have both have the same value
and degree of circulation, Hanafi and some Maliki
scholars view the buyer may use any currencies to
pay for the item, but Hanbali and some Maliki
RKFQ 2070 SECTION 2 GROUP 1
scholars said the currency must be mentioned during
the contract is made. As for Shafi‘e, it depends on
the verdict of a judge to determine which currency
is to be used in the transaction (Saleh, 1992, 79).
The above explanation is when a bilateral
transaction takes place. Moreover, gharar not only
happen in bilateral transaction, it may also happen in
unilateral transaction for example, donation, will
and power of attorney. The first unilateral
transaction is donation. Maliki school allows
donating item containing gharar such as donating an
escaped animal or a runaway slave as mentioned by
Ibn Rushd. On the other hand, other schools prohibit
anything containing gharar regardless it has price or
not. Shafi‘e only permits minimum gharar item can
be donated such as donating fruit before it shows
signs of readiness. As for Hanafi, it must exists and
determined before donating. While for Hanbali, only
the knowledge of the donor concerning the item is a
requirement to validate the donation, not the donee’s
(Saleh, 1992, 70). The second one is the will. All
scholars unanimously agree listing items those are
“non-existent, undetermined, or outside of the
control of testator and/or beneficiary” in a will is
acceptable and will not make it void (Saleh, 1992,
71).
Third is hiring an attorney either giving him
a full power to do anything or just a specific
authorization to him. In Hanafi school, giving
attorney a full power has different views. Some
scholars limit the power only to bilateral transaction,
while others allow all types of transaction except for
talaq, ‘itq and waqf (Saleh, 1992, 72). Meanwhile,
Maliki scholars allows all types of transaction
including risky transactions on the behalf of the
principal with principal’s permission, such as power
in divorcing principal’s wife, consenting to the
marriage of his eldest daughter, disposing of his
dwelling-place, and disposing a slave who is in
charge of his affairs. Custom is the foundation in
limiting the power of the attorney according to
Maliki (Saleh, 1992, 72-73). In Hanbali and Shafi‘e
schools, a very detailed definition in a task must be
instructed to the attorney as to avoid gharar in the
task of the attorney. However, in Hanbali, even the
task is limited but the attorney has the fullest power
to complete the task unlike in Shafi‘e (Saleh, 1992,
73).
Fourthly, all scholars in four schools
unanimously agree selling unripe fruits and fruits are
not collected from the sources are prohibited. Selling
fruits when signs of readiness are shown by fruits is
14
permissible, however scholars vary concerning
interpretation of the signs. For Maliki and Shafi‘e
scholars, the fruits are ready when they show signs
of ripeness or sweetness. On the other hand, Hanafi
scholars say it is when the fruits passed the flowering
stage and currently at the final stage showing its final
look. Regarding agriculture products buried in the
earth, for example carrots, onions, garlic and radish,
only Maliki approves this type of sale. In addition,
nuts still in the shell, as an example, is not allowed
to be sold from Shafi‘e point of view (Saleh, 1992,
76).
Next is istisna‘ or a manufacture contract
where a customer will place an order of a well-
specified item in its quality and quantity to a
manufacturer, and the price is determined during
conclusion of the contract. The initial stage is from
placing the order until the time seeing the object.
Abu Hanifah’s opinion is during the initial stage, the
customer can cancel his order or the manufacturer
can refrain from manufacturing it. After it has been
manufactured, the customer has the option after
inspection where if there is dissatisfaction in the side
of customer, the customer can refuse to buy it.
However, this opinion is rejected by Abu Yusuf
saying that this sale is a binding. In other words, the
manufacturer and the customer have no rights to
refrain from manufacturing the item and to cancel
the order once manufactured, respectively. This sale
is binding, too, in Maliki, Shafi‘e and Hanbali
(Saleh, 1992, 78).
If there are any disputes between the
customer and the manufacturer regarding the item,
Maliki and Hanbali schools say the burden is on the
customer as the manufacturer is assumed has taken
the oath. On the other hand, Shafi‘e school view the
burden is on the customer as well as on the
manufacturer assuming both have taken the oath
(Saleh, 1992, 78). Regarding the disputes risen in
price, Hanbali and Shafi‘e scholars view both parties
are responsible regardless the item is manufactured
or not. Thus, any problems arise, the contract is
rescinded. Similarly, it is the same for Hanafi if the
item is not manufactured. However, when it is
already manufactured, “then the manufacturer is to
be believed”. In Malikis view, “the manufacturer is
to be believed when the order is in the recent past”,
if not the client will be considered (Saleh, 1992, 78).
Secondly, in order to dispel the gharar, an
item must be displayed during a selling session. It is
to clearly describe customers the features of the item
especially its kind (naw‘) and species as any
RKFQ 2070 SECTION 2 GROUP 1
unknown features may bring gharar and create
disputes between the two parties. Displaying the
item before the eyes of the customers is the view of
Shafi‘e school, thus invalidate the sale of an absent
object. On the other hand, other schools view at least
describing the features of the item is sufficient.
Moreover, only Hanafi school permits the method of
option after inspection where customers may rescind
the contract after inspecting the item even though
there is no description given by the buyer (Buang,
2000, 118-119).
In Islam, there is a type of transaction
where items such as a heap of wheat, carrots and rice
may be sold just by looking at them without proper
measurement referred as bay‘ al-juzaf. All of four
schools acknowledge this type of sale with slight
differences between them. In Hanafi, when the exact
measurement is unknown to the both parties, it is
void. However, the sale is remain valid with
aversion when only the seller knows about it,
according to Abu Hanifah. On the other hand, in
Maliki, the sale is void if only the vendor knows the
measurement. Shafi‘e and Hanbali share the same
view as Maliki. In addition, the three latter schools
give the right to the buyer to rescind the sale if there
is any defect found on the item, unlike Hanafi, where
the option after inspection is applicable, thus the
buyer can always change his mind after examining
the item. This sale, however, is not for items that not
similar to each other such as clothes and animals
(Saleh, 1992, 96-99).
Another type of sale exists in the Islam is
bay’ al-ghayb. It is when an item exists during the
contract session, its features are known to the buyer,
and it is in the possession of the seller which the
seller able to deliver it to the buyer, however it is not
displayed before the buyer. Shafi‘e scholars are
against this sale because describing the item alone,
even though the description is accurate, without
displaying it is insufficient to dispel gharar (Saleh,
1992, 85-86). Al-Kasani allows this type of sale
because the buyer has the option to cancel from
buying the item after inspecting it regardless it has
been perfectly described by the seller (Nordin, 2014,
31). This view is parallel with Ibn Juzay’s view
where gharar can be dispelled with an accurate
description to remove the want of knowledge from
customers, thus any dissimilarities found, the buyer
may rescind the sale (Nordin, 2014, 31). However,
Hanbali school limit this type of sale with two
conditions. Firstly, the item can be sold by bay’
salam. In other words, it can be measured or
weighed, and can be described. Secondly, the
15
customers can identify the item just by hearing at the
description of it (Saleh, 1992, 87-88). Ibn Rushd
permits it only to the items with unchanged features
until it is in the possession of the buyer (Nordin,
2014, 31).
The last element is the inability of the seller to
deliver the item to the possession of his customers.
Unable to deliver the item leads to uncertainty or
gharar, and the sale is void as unanimously agreed
by all scholars from four schools. The example of
this inability are the sale of an escaped animal, of a
runaway slave, of a bird in the air, of fish in the
water, of an unborn animal when the mother is
excluded from, of milk still in the udder, and of
stallion’s sperm. The view of each of this type of sale
is described as following:
The sale of an escaped animal and a runaway
slave is prohibited according to Shafi‘e and Hanbali
scholars. For Maliki scholars, it is valid with the
conditions the whereabouts of the escaped animal or
runaway slave is known and he is with someone
whom he easily retrieved, and the payment is hold
until the item is in the hand of the buyer. However,
when the fugitive slave is hard to be retrieved from
a person, it is invalid. However, in Hanafi, there are
three views. First view is the sale is void if the slave
is unknown of his whereabouts and impossible for
the seller to deliver him. Second view is his
whereabouts is known and he can be delivered, thus
the sale is valid. Third view is when the buyer knows
where the slave is and claims he can be delivered, if
the slave successfully delivered, the contract is
valid, and if otherwise, it is invalid (Saleh, 1992,
100; ad-Darir, 2012, 347-348);
The sale of a bird in the air is unanimously
prohibit by all scholars regardless the bird is owned
by the seller, or the bird is known for its behaviour
to return to its nest (Saleh, 1992, 100-101);
The sale of fish before it is caught is prohibited.
However, if the fish is already in the possession of
the seller but in the water, the Hanafi school said it
is permissible if it does not need to be caught again.
The Maliki school prohibits this sale. The Shafi‘e
prohibits if it cannot be delivered immediately after
the sale as the pool is so wide meanwhile it is
permissible on conditions the fish can easily be seen
and the pool does not connect to a river. The Hanafi
has the same view as Shafi‘e (ad-Darir, 2012, 353-
354);
RKFQ 2070 SECTION 2 GROUP 1
The sale of an unborn animal when the mother
is excluded from the sale is void. This is because
there is a want of knowledge (jahl) on the features
of the unborn animal and it cannot be delivered to
the customer at the will of the seller (Saleh, 1992,
101);
The sale of milk still in the udder is void except
for Maliki school with the conditions of the number
of days are specified in the contract, the milk is from
more than one animal and the average production of
milk is known (Saleh, 1992, 101), and;
The sale of stallion’s sperm is void with except
it is tolerated by Maliki school (Saleh, 1992, 101).
Effective and Ineffective Gharar
To determine if gharar affects a certain sale or
not, there are some conditions to check. The first
condition is gharar only occurs in the commutative
contracts. In other words, only sale, lease and
partnership contracts containing gharar are
prohibited because there are authentic ahadith
mention the prohibition. Next, gharar must be
significant to invalidate the contract. The significant
gharar in contracts are mentioned by the Prophet
such as sale of hasah, mulamasah, munabadhah and
muzabahanah, thus making the list of contracts
prohibited due to gharar is shorter than the
insignificant gharar contracts. Besides that, gharar
must be in the original item of a contract, not to sub-
items of the contract. Lastly, when a contract is made
due to necessity would eliminate gharar. Necessity
is when a person is not allowed to do something that
is prohibited, he will consequently die. For example,
a man who is starving for at least seven days, if he is
not eating something even it is prohibited he will die
(ad-Darir, 2012, 645-675).
The Purification of Gharar
As discussed earlier, any contracts should not
contain significant gharar in the item, its price, its
characteristics and exchange possession of the item
from the seller to the buyer. However, a slight
gharar is permissible because it would not cause any
disputes where it may lead to dissatisfaction at either
parties unlike exorbitant gharar would do. Some
contracts may contain gharar yet they are permitted
in Islam due to necessity and need, for example,
worker contract where workers are not exist at the
time of concluding it is permissible as workers will
eventually come into existence, and bay‘ juzaf where
buying in bulk without any parties knowing the
16
exact weight of a heap of wheat, for example, is
permitted.
In the case of purifying income gained from
gharar as well the item sold containing gharar, the
only possible way is by returning the money back to
the customers, and the item must be returned to its
original owner. This is the solution given by Sheikh
Muhammad ibn Ibrahim in Fatawa wa al-Rasail ash-
Sheikh Muhammad ibn Ibrahim as cited in Islam
Question and Answer, a website supervised by
Sheikh Muhammad Salih al-Munajjid. This fatwa
given was derived from a case of a woman sold her
date palms for a thousand riyals, and fifty saa‘s plus
with fruits of another date palms each year for the
rest of her life. This contract contained gharar as for
the price was not specified and the duration of the
woman was not sure.1
Thus, the solution is the object must be given
to its owner, or if the owner is dead, to its owner’s
family members, while the income gained must be
returned back to the buyer.
Conclusion
The brief discussion in this article explaining
the question of sharia non-compliant property
management is expected to give a general
understanding of the concept, status, law, type or
category and management of such property.
Generally, there are still many people who do not
understand the subject of this sharia non-compliant
property which often appears to be inaccurate in
dealing with issues related to it. We tried to explain
this topic easily and clarified about the management
of this non-compliant property in the current
context.
The concept of property in Islam put mankind
only as trustee. As the khalifah who holds this trust,
man must obey every God-given rule. In this context
only property acquired in a way of halal is
recognized by Islam as a legal property. While the
shariah non-compliant property has a different
position in which it is not recognized in Islam.
Although this shariah non-compliant property is not
recognized, Islam has determined that this property
should not be disposed of even if it is to be
administered and spent according to the method
required by syarak.
The need to manage this shariah non-compliant
property is among the demands that must be fulfilled
at this time. In the context of Malaysian society, for
example, there are many shariah non-compliant
properties that can be used for maslahah ‘ammah.
RKFQ 2070 SECTION 2 GROUP 1
Any attempt to dispose of this property is against the
rules of Islam and contrary to the teachings of Islam.
Therefore, this shariah non-compliant property
should be channeled to institutions or individuals
entitled to use for the maslhah ‘ammah. Although
Islam permits sharia non-compliant property owners
to be distributed directly to individuals such as the
poor, orphans, we think that the way to channel these
properties to institutions such as Baitul mal, charities
or da'wah, welfare homes and other charitable
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effectiveness of its use and can be optimized for the
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1
Ayob, Syeikh Hassan, Fiqh Muamalah, Berlian
Publications, 2008, 4.
2
Ayob, Syeikh Hassan, Fiqh Muamalah, Berlian
Publications, 2008, 5.
3
Ayob, Syeikh Hassan, Fiqh Muamalah, Berlian
Publications, 2008, 23.
4
Ayob, Syeikh Hassan, Fiqh Muamalah, Berlian
Publications, 2008, 25.
5
Retrievefrom:https://zulkiflihasan.wordpress.com/
2011/10/20/pengurusan-harta-tidak-patuh-syariah/
6
Retrievefrom:https://zulkiflihasan.wordpress.com/
2011/10/20/pengurusan-harta-tidak-patuh-syariah/
7
Qal’ajhi ,Dr. Muhammad Rawwas, Urusan
Kewangan Semasa. Al-Hidayah, 2005, 11.
8
Qal’ajhi ,Dr. Muhammad Rawwas, Urusan
Kewangan Semasa. Al-Hidayah, 2005, 9.
9
Abd Rahman, Zaharuddin , Wang, Anda, Dan
Islam. True Wealth Sdn. Bhd, 2008, 22.
10
Abd Rahman, Zaharuddin , Wang, Anda, Dan
Islam. True Wealth Sdn. Bhd, 2008, 25.
11
Dr. Muhammad Ray Akbar, Rasuah bagaiman
Islam menanganinya, 2010
12
Mohamad Ezam Mohd Nor & Sapto Waluyo,
Islam and the issue of corruption, 1967, p.21.
13
Nor & Waluyo, Islam, p.21
14
Ibid., 22.
15
Ibid, 22.
18 RKFQ 2070 SECTION 2 GROUP 1

16
Ibid p.22
17
Ibid 23.
18
Ibid 24.
19
Ibid 24.
20
Nor & Waluyo, Islam, p.41
21
Mohamad Ezam Mohd Nor & Sapto Waluyo,
Islam and the issue of corruption, 1967, p.58.
22
Shahraza, Cara membersihkan wang haram,
2010
23
Shahraza, Cara.
24
Ibid.

25
Shahraza, Cara.
26
Shahraza, Cara
27
Zaharuddin Abd Rahman, Wang, anda dalam
Islam, 2009, p.193
28
Rahman, Wang.
29
Ibid p,193
30
Ibid p,193.

31
Siddiq Mohammad Al-Ameen Al-Dhareer, Al-
Gharar in Contracts and Its Effects on
Contemporary Transactions, (Jeddah, Islamic
Research and Training Institute Islamic
Development Bank, 1997), 10.
321
Nadhirah Nordin, Gharar dalam Kontrak
Dericatif Komoditi, (Kuala Terengganu, Penerbit
Universiti Zainal Abidin, 2014), 16.
33
Ahmad Hidayat Buang, Studies in the Islamic
Law of Contracts: The Prohibition of Gharar,
(Kuala Lumpur, International Law Book Services,
2000), 74.