Kitab al-Hawalah - Transfer of debt

26/11/2023
Version 1.0

Abu Hazim said: In the name of Allah the Compassionate, the Merciful.

Rasulullah ‫ ﷺ‬said: “A Ghani delaying (a right, such as a debt) is oppression. So, if your (noun is
referring to the creditor) debt is transferred from your debtor (the one that needs to fulfill the
right) to another Mali’ (Ghani) debtor, you (the creditor) must follow it” (1).

Rasulullah ‫ ﷺ‬said: “When you buy, do not sell it except if you have taken it (Qabdh)” (2).

Everyone that owes a right to the other, for anything other than selling (Bay’), such as warranty
for forcible seizure, transgression, Salam, loans (Qardh), settling disputes (Sulh), leasing
(Ijarah), dowry (Sadaq), contract for freedom of a slave after specific money is paid (Kitabah) or
warranty. If anyone that owes a right to his creditor transfers any of these rights to someone
else, except for selling. And it does not matter if it is from one aspect having two debts or two
aspects with different debts. The person to whom the responsibility for the debt is transferred
(Muhal ‘Alayh), must from that time on fulfill that right and not delay it, the one to who it is
transferred to must accept it and is forced into it. The primary debtor who is transferring the debt
(Muhil) becomes then free of the debt, there is not any return to this transfer, whether the Muhal
‘Alayh has it difficult or not, and whether Muhal ‘Alayh pays off the debt or not. Because
Rasulullah ‫ ﷺ‬ordered following the one to whom the debt is transferred, it is not allowed to
follow anyone other than that. If he deceives and transfers it to anyone that is not Ghani and the
one transferring it knows about it, it is a false transfer and the debt remains untransferred as it
was. It is not allowed to transfer except to a Ghani as ordered by Rasulullah ‫ﷺ‬.

We clarified what a Ghani is in Kitab al-Zakah with the evidences for it and we will mention here
the definitions again In Sha’ Allah.

A Ghani is the one that can make it even if he is in a situation with no food, clothes or shelter, it
means that he can easily buy whatever he needs. Every Musir has Ghina, but not every Ghani
is Musir. And a Musir is the one who is able to stay proper and is able to keep his wife or
children proper with having left over food, clothes and sheltering them or left over wealth from
what his wife and children eat from.

Al-Shafi’i said: “If the debt is transferred to someone who is not Ghani, the transfer is valid and
must be carried out by the one that is not Ghani” (3).

This is false as we clarified before, as for Abu Hanifah and Malik have the same view as us
regarding this (4).
If one of the two rights is selling and the other is anything other than selling from those we
mentioned, we look into it. If the right on the one transferring it is from other than selling and the
one to who the right is being transferred is related to selling or not, then the transfer is valid. If
the right on the one transferring it is from selling, it is not valid except if power of attorney is
used (Tawkil) and he authorizes the attorney to receive his right for him. The moment he did
Qabdh of the right he took the right for himself and the one transferring is free from it. If he is not
able to do Qabdh of for a preventative, then the right stays with the one that wanted to transfer
it. Because Rasulullah ‫ ﷺ‬prohibited selling what is bought except if it is taken (Qabdh). As for
the contract being freed, it is because of the attorney takes the right after Qabdh. As Rasulullah
‫ ﷺ‬ordered Qabdh, once this is done the rights are fulfilled. If he does not do this he
transgresses as he wastes the property of his authority and he will obliged to pay warranty.

If the right of the transfer is affirmed on the Muhal ‘Alayh whether by his approval or with
evidence of witnesses that are of virtue, then even if the rejects it it is a valid transfer and he
must fulfill it.

If it is claimed that if it would be allowed to force, that it would lead to an infinite regression.
Then this is false and against the orders of Rasulullah ‫ﷺ‬. Because if a Ghani delays or transfers
to someone that is not Ghani, this is both prohibited and against the orders and it can not be
carried out. Transferring is only to hasten fulfilling the rights of others which is in the manner we
clarified it before.

Transferring debts that are prescribed with and without a time are all allowed, but the times
prescribed never change after the transfer.

We finish everything here and we say, all praise be to Allah, the Lord of the worlds. Peace and
blessings of Allah be upon our master Muhammad, his servant, his messenger. There is no
power or strength except by Allah. The Most High, the Most Great.
Sources:

(1) Sahih al-Bukhari 2287

(2) Sahih Ibn Hibban 3/43
(3) Al-Umm by al-Shafi’i 3/333
(4) Al-Asl 10/445
Al-Mudawwanah 4/126