LAW 737
ISLAMIC LAW OF TRANSACTIONS
QUESTION 9:
GHARAR - THE DIFFERENT VIEW OF
JURISTS
PRESENT BY:
MUNA FARHANA BT. HALIM
NORHANISAH BT. JOHAR
NUR LIYANA BT. MOHD. ANUAR
INTRODUCTION
“The prophet prohibited the pebble sale and the gharar
sale”
Abu Hurayra
What is Gharar?
• Gharar has many definitions which can be summarised
under 4 headings:- Hanafi and Shafi’e
- Zahiri
- Most Jurists (Jumhur)
- Al-Sarakhsi
• Hanafi and Shafi’e
- Gharar means doubtfulness or uncertainty.
- Ibn Abidin defines Gharar as ‘uncertainty
over the existence of the subject matter of
sale’.
• Zahiri
- Gharar means ignorance.
- Ibn Hazm defines ‘Gharar in sale occurs
when the purchaser does not know what
he has bought and the seller does not
know what he has sold”
• Most Jurists (Major)
- means combination of both ignorance and
uncertainty.
- accepted by the majority (Jumhur).
• Al-Sarakhsi
- defines ‘Gharar in contract or transaction occur
when the consequences are concealed or
unknown’ to the contracting parties.
• Gharar occurred when:1) The consequences are totally concealed.
2) The probability of existence is equal to the
probability of non-existence.
3) The non-existence of the subject matter
outweighs its existence
Prohibition of Gharar
• Reliable sources have reported through a number
of the Prophet’s companions that the Prophet
(S.A.W) has forbidden Gharar in trading.
• The Hadith is considered as one of the cardinal
principles of sale's law and the groundnorm of all
rules governing Gharar contract.
• Muslim Jurists agree that excessive Gharar is
prohibited as it impairs the validity of the
contract.
Types of Gharar
• Gharar is divided into two namely:
(i) Gharar saghir - minor or slight gharar.
(ii) Gharar kabir -major or excessive gharar.
•The gharar that causes a contract to be invalid is
major gharar.
• In general terms major or excessive gharar is:
- an uncertainty which is so great that it
becomes unacceptable, or
- it is so vague that there is no means of
quantifying it.
• More specifically excessive gharar arises out of
one of the following:
- Asset or merchandise does not exist.
- Asset or merchandise cannot be delivered.
- Asset or merchandise is not according to
specifications.
Prohibition of Gharar
• The examples agreed upon excessive Gharar:
1.
2.
3.
4.
5.
6.
7.
8.
9.
The “Pebble” “touch” and “toss” sale.
Selling the unborn animal without its mother.
Selling the fetuses and embryos.
Selling fruit before its emergence.
Selling the find of the diver in advance.
Selling the unborn animal (Habal-al-Habalah).
Selling the object of unknown identity without the
buyer having the right to specify it.
Selling an object of unknown genus.
Deferment of the price to an unknown future date.
GHARAR AND THE INVALIDITY
OF A CONTRACT
• Gharar in a contract can refer to:
(i) uncertainty towards the existence of the
subject matter.
(ii) uncertainty towards the possession/
ownership of the subject matter.
(iii) uncertainty towards the price.
(iv) uncertainty towards the payment of the
price.
(v) ignorance (jahalah).
THE VIEW OF ISLAMIC JURISTS:
PAST AND PRESENT
VIEW OF PAST ISLAMIC JURISTS
• HANAFI SCHOOL
- AI-Sarakhsi - Gharar as something with unknown
consequences.
- AI-Kasani - Gharar that refers to suspicion. Gharar is the
potential risk faced by a person, with a 50%
possibility that the goods mayor may not
eventually exist (syak). To AI-Khasani, gharar
is the suspicion that a good may not exist.
• For the Hanafi mazhab, such a trade is lawful
because the buyer is given the right to make a
choice after he has viewed the goods. This
view is based on the Prophet s.a.w. hadith:
‫من اشترى شيئا لم يره فهو بالخيار إذا رآه‬
Meaning: "Whosoever buys something that
has not been viewed, he has khiyar (choice to
buy or reject) after viewing it".
• SYAFIE SCHOOL
- Gharar as khatar (of high risks).
AI-Shirazi - Gharar as something whose condition
and consequence are unknown.
AI-Ramli - Gharar is something that has two
assumptions, positive and negative,
with the negative being bigger.
AI-Sharqawi and AI-Qalyubi Gharar as something whose
consequence is unknown and has two
assumptions, positive and negative,
the negative outweighing the
positive.
• ZAHIRI SCHOOL
• Gharar also means ignorance and this can be
when the subject matter of sale is unknown.
This view is adopted by the Zahiri School
alone.
- Ibn Hazm
‘Gharar in sale occurs when the purchaser
does not know what he has bought and
the seller does not know what he has sold.’
VIEW OF PRESENT ISLAMIC JURISTS
• MUSTAFA AL-ZARQA' :
- Gharar is a fraud through words or deeds
to attract someone to perform aq’d.
- Divided Gharar into 2 forms:i) Gharar Qauli
ii) Gharar Fi'li
VIEW OF PRESENT ISLAMIC JURISTS
- Gharar qauli
a fraud committed verbally by a seller
relating to price and method. For example,
a seller says to a buyer: "The same product
can be found elsewhere but we offer the
lowest price." These words attract a buyer
to perform 'aqd with the seller.
VIEW OF PRESENT ISLAMIC JURISTS
- Gharar fi’li
a fraud committed by a seller relating to
the features of the product, by his action.
For example, a shepherd who wants to
make his goat saleable by displaying a l
arge pouch of milk. This would attract the
buyer to assume the goat produces a lot of
milk when it does not.
VIEW OF PRESENT ISLAMIC JURISTS
• MUHAMMAD BELTAJI
- It is impossible for the buyer and seller to
avoid gharar completely.
- 3 requirements in declaring something as
gharar that can be excused:
i. The gharar is minor and small.
ii. Such trading is needed by society.
iii. The gharar cannot be avoided without
masyaqqah(hardship) that is recognised
by Syara'.
THE EXTENT OF PERMISSIBLE GHARAR
• Gharar is prohibited by the law but to certain
extent,it is permissible.
• Some of the examples to show that it is
permissible under minor gharar such as:–
–
–
–
–
–
Salam
Ijara
Jua’la
Shirka
Mudaraba
Bay al-Istisna
Permissible Gharar
• Salam
- a sale contract where delivery is delayed
until a prefixed future time.
- “Believers! When you contract a debt for a
fixed period put it in writing“
(Al-Baqarah:282)
- prefixing the future date of delivery will
render the contract to be valid.
Permissible Gharar
• Ijara
- a contract of hire or lease for a service or for a use
of certain moveable and immoveable property for
a consideration.
-
"... one of the girls said: father! take this
man into your service (ista 'jir-hu), men
who are strong and honest are the best
that one can hire (khayra man ista'jar-ta)“.
(Al-Qasas : 26)
Permissible Gharar
• Ju 'ala
- a contract for a reward made to the world at large
for returning of a lost property.
- This contract is risky and uncertainty because the
reward is not paid to the offeree until the work
is completed, the nature of the work is not certain
and precise and no condition of pre-payment
is
permitted.
- “they said: we have lost the king’s cup, and he
who brings it shall have a camel-load...”
(Surah Al-Yusuf:72 )
Permissible Gharar
• Shirka
- A contract of partnership to engage in trading or
enterprise in the view of sharing the profit
secured from the trading or enterprise.
- Because of the amount of profit and the
nature of presentation and surety ship are not
precisely known causing the contract containing
the element of gharar.
- "they (the heirs) are the sharers (shuraka') of one
third“.
(Al-Imran:24)
Permissible Gharar
• Mudaraba
- the capital is the combination between
cash and effort.
- the contract is void because the work done
by the entrepreneur is not precise and the
profit is not guaranteed and unknown.
- In order to make this contract effective the
capital and the distribution of profit must
be made certain.
Permissible Gharar
• Bay' al-istisna'
- a contract to manufacture, where a
customer will place an order to an artisan
to make a specific kind of article like shoes,
furniture, and the like for a price paid in full
or none at the inception of the contract.
- contract of a nonexistent – void
- This contract was allowed because the people
are in the extreme need of it.
CONCLUSION
Ibn Juza’in stated that:- gharar is prohibited by the hadith and sunnah.
- it must be avoided as it render the gharar in
contract as null and void.
- unless gharar is very minor gharar, it is
tolarable.
CONCLUSION
• Form of gharar or uncertainty prohibited in
the Islamic is a vindication of the viability and
infallibility of the Islamic injunctions that are
derived from the Holy Qur’an and the
Tradition of the Prophet.
• But to the certain extent, it is permissible
under the Islamic law as if it is a minor gharar.
“This is a kind of reminder that Man needs the
guidance of his creator as he fulfils his role as
a vicegerent of God on earth and without this
guidance he is always subject to being lead a
stray by his whims and desires or the
limitation of his mind and experiences as
attested to by the many failures of our time in
all spheres of life”.
Thank you.