Fiqh Assunah

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  • Fiqh Assunah

  • Fiqh-us-Sunnah, Volume 3: Zakah on Wealth Extracted from the Sea

    Fiqh-us-Sunnah, Volume 3: Zakah on Wealth Extracted from the Sea

    Most scholars stipulate that zakah is not payable on anything extracted fromthe sea, such as pearls, corals, chrysalite, cachalot's ambergris, fish, and soon. There is, however, a report from Ahmad that if the amount extracted reachesa nisab, then zakah is due on it. Abu Yusuf agrees with him in the case ofpearls and cachalot's ambergris. Ibn 'Abbas holds that there is no zakah ofcachalot, beacause it is an object thrown out by the sea. Jabir said that thereis no zakah on cachalot, but that it is a free spoil for anyone who finds it.

    Volume3, Page 53a: Acquiring Property Through Profit or Increase

    When a person acquires property and it stays in his possession for a yearand constitutes a nisab, and he has no other property or he has similarproperty which has not reached a nisab except when the acquired property hasbeen added to it, then the year hawl of zakah becomes applicable to it from thetime of its acquisition. The zakah will be payable at the completion of thehawl. In such a case, the acquired property may be classified in any of thefollowing categories:

    -1- The acquired holdings increase in value either by profits from trade orby an increase in animal production. These kinds of holdings qualify themselvesfor the application of the hawl and zakah. For the individual whose merchandiseor animals constitute a nisab and whose business also makes a profit or whoseanimals reproduce during the course of the hawl, he should count the originaland additional property as one for the purpose of zakah. There is no disputeabout this among scholars.

    -2- As for the acquired property which falls under the same category as theattained nisab but is not derived or generated from it--that is, it wasacquired through purchase, gift, or inheritance-- Abu Hanifah holds that thismay be combined with the nisab in order to become a part of it with regard tothe hawl and payment of zakah. Thus, the principal property and the profits arecollectively taxable.

    Ash-Shaf'i and Ahmad suggest that newly acquired property be combined withthe original one for the purpose of attaining a nisab and that a new hawl hasto be assumed for it--whether the original consists of cash or animals. Forexample, if someone has 200 dirhams and manages to acquire another 200 dirhamsduring the year, he should pay zakah on both at the completion of the hawlwhich will begin to roll at the acquisition of new property. Malik's opinion islike that of Abu Hanifah's concerning animals but like Ahmad's in regard togold and silver.

    -3- The acquired holdings are not of the same kind that one alreadypossesses. As such, they cannot be combined with the original either for thenisab or for the year count (hawl). If, however, the acquired holdings bythemselves reach a nisab, their year count will be calculated independently,and the owner will pay their zakah at the completion of the hawl. In theabsence of these conditions, nothing is applicable to these holdings. This is theopinion of the majority of scholars.

    Volume3, Page 54: Zakah ie the Responsibility of the Owner, Not the HoldingsThemselves

    The Hanafiyyah, the Malikiyyah, and a report from ash-Shaf'i and Ahmadpropose that it is the property which owes zakah. The second opinion attributedto ash-Shaf'i and Ahmad is that zakah is the responsibility of the owner, notthe property. The difference between the two opinions is obvious:

    For example, someone had 200 dirhams and did not pay zakah on the sum fortwo years. The opinion which says that zakah is due on the property itselfmeans that the amount due is for one year only since it decreased by fivedirhams, which was the amount due for zakah at the end of the first year. Thesecond opinion, that zakah is the responsibility of the owner, means that heshould pay zakah twice, one for each year, as zakah is the responsibility ofthe owner and is not affected by the decrease of the nisab.

    Ibn Hazm favors the view that it is the owner's responsibility. There hasbeen no difference of opinion, he says, among the Muslims since the time of theProphet, upon whom be peace, down to his time as to the applicability of zakahon wheat, barley, dates, silver, gold, camels, cattle, and sheep. Concerningpayment of zakah from a different lot of wheat, barley, dates, gold, silver,camels, cattle, and sheep, he says it does not matter whether one pays it fromthe same lot, from a different one in one's possession, or from a lot that maybe bought, granted as a gift, or borrowed.

    The conviction that the payment of zakah is the owner's responsibility andis not necessarily that of the property itself is a sound principle, for if itbecomes due on the property itself, the owner will not be permitted to makepayment from a different lot. It is similar to the case of one partner beingprevented from giving his money to his copartner from a source other than theone involved in their partnership--unless the partners approve of it and itdoes not violate the conditions of the transaction between them. Furthermore,if zakah has to be applied to the property itself, only two situations canarise. First, zakah is payable on all parts of that property and is applicableto any individual amount of it, without individual specification. Second, if itis applicable to every part of it, it is impermissible to sell from any herd orgrain since zakah collectors in this case would become partners. Thus, theproprietor is not allowed to take anything from it. This is void without anydispute. Furthermore, it would become obligatory upon him to specify exactlythe price of the sheep which he desires to take out, just as is done inpartnerships. If zakah is due on any part of it other than the property itself,it becomes void. This holds true in such a case since he does not know what hemight sell or whether he is taking what is due for the sadaqah collectors.This, in turn, backs up the above.

    Volume3, Page 55: Loss of the Holdings after Zakah is Due

    Once zakah becomes payable on the holdings either because of the completionof a year or harvest time, and the holdings or part of them are lost, the ownerstill has to pay it. Whether the loss occured owing to negligence or not doesnot matter.

    This is the opinion of Ibn Hazm and the better opinion of the Hanbaliyyah.Abu Hanifah holds that it vitiates the payment of zakah if all the propertyperishes without the owner's role in its destruction. When part of it perishes,the perished portion is not subject to zakah. This is in accordance with therule that zakah is associated with the property itself. However, when theproperty is deliberately destroyed by the owner, zakah has to be paid.Ash-Shaf'i, alHassan ibn Salih, Ishaq, Abu Thaur, and Ibn al-Munzhir hold thatif the nisab perishes before zakah is paid, then the owner owes nothing.However, if it perishes subsequent to the accumulation of the nisab, the ownerhas to pay it. Ibn Qudamah supports this view and says it vitiates the paymentof zakah if the property perishes without any negligence on the part of theowner. This is because it is obligatory for the sake of beneficence, whichpresupposes the existence of the property--and not with the purpose ofimpoverishing the payers of zakah.

    Negligence in this context implies that the owner had accumulated the nisaband thus it was possible for him to pay zakah, but he did not and the propertyperished. On the contrary, if he did not have the nisab, or the holdings werenot in his possession, or they were to be purchased and he could not, then thisdoes not constitute an act of negligence.

    Likewise, if it is presumed that the obligation to pay zakah remains evenafter the holdings are lost, and the owner has the means to pay it, then hemust do so. Otherwise, he should be granted a respite in order to fulfill hisobligation to pay zakah. This is akin to a debt one owes to someone but thedebt owed to Allah should be considered more important.

    Volume3, Page 56: The Loss of Zakah After it is Set Aside

    When a person sets aside zakah for distribution among the poor and all of itor some of it is lost, he must repay it because it is still his responsibility.

    Ibn Hazm says: "We received a narration from Ibn Abi Shaibah on theauthority of Hafs ibn Ghayath, Jarir, al-Mu'tamir ibn Sulaiman at-Taymi, Zaidibn al-Hubab, and 'Abdulwahhab ibn 'Ata; also from Hafs, who narrated on theauthority of Hisham ibn Hassan from al-Hassan al-Basri; Jarir who reported, onthe authority of alMughirah from his companions; and al-Mu'tamir who reportedfrom Mu'amar from Hammad; and Zaid who reported from Shu'bah from al-Hakam; and'Abdulwahhab who reported on the authority of Ibn Abi 'Urubah from Hammad fromIbrahim an-Nakha'i that whoever sets aside zakah from his property and then itis lost, his obligation to pay zakah still remains to be discharged, and hemust set it aside again."

    There exists, however, another opinion on it: "We received a narrationon the authority of 'Ata' that the obligation will be discharged [if set asideand lost]," says Ibn Hazm.

    Volume3, Page 57: Delaying of Zakah (Payment) Does Not Void it

    Ash-Shaf'i holds that anyone who does not pay zakah for a number of yearsmust pay it all together. Whether or not he is aware of its obligation or hehappens to be in a Muslim or non-Muslim land, makes no difference. Based on theopinion of Malik, ash-Shaf'i and Abu Thaur, Ibn al-Munzhir says: "Whenunjust people rule a country and the people of that country do not pay theirzakah for a number of years, then their new leader should take it fromthem."

    Volume3, Page 57a: The Payment of the Value Instead of Paying the Item Itself

    It is not permissible to pay the value instead of the item itself, except inthe case of non-existence, for zakah is an act of worship which can only befulfilled according to the specified manner, with the rich sharing their wealthwith the poor

    Mu'azh reported that the Prophet, upon whom be peace, sent him to Yemen andtold him: "Take grain from grain, sheep from sheep, camels from camels,and cows from cows." This hadith is narrated by Abu Dawud, Ibn Majah,al-Baihaqi, and al-Hakim. It should be noted that there is an interruption inthe chain of this hadith, since 'Ata' did not hear it from Mu'azh.

    Disapproving of substitution, ash-Shaukani says: "The truth of thematter is that zakah is obligatory on the item itself and should not besubstituted for its value except where there is a valid excuse."

    Abu Hanifah permits the acceptance of the value whether the individual owingcould pay it in the items itself or not because zakah is the right of the poor,and he believed that it made no difference whether it was paid in the item orin something else of equal value. AlBukhari reports, with a firm statement,that Mu'azh asked the people of Yemen to give him either goods or clothes ofsilk or garments as zakah instead of barley and corn because it was moreconvenient for them. The companions of the Prophet, upon whom be peace, werealso given the choice in Madinah.

    Volume3, Page 58: Zakah on Shared Property

    When holdings are shared between two or more partners, zakah is notobligatory on either one until all of them attain a nisab individually. This isthe opinion of most scholars. This does not include the combination of animals,which has been discussed earlier.

    Volume3, Page 58a: Evading the Payment of Zakah

    The opinion of Malik, al-Auza'i, Ishaq, Ahmad, and Abu 'Ubaid is thatwhoever possesses a nisab of any kind of property and then sells it before thecompletion of the year hawl, or gives it away as a gift, or damages part of itwith the intention of avoiding its zakah, he still must pay its zakah. If heengages himself in any of the preceding acts at a time when his obligation topay zakah is about to mature, he will be forced to pay it. If, however, any ofthe preceding acts happen at the beginning of the hawl, this will notconstitute an evasion, and he will be (legally) free from his obligation to payzakah.

    Abu Hanifah and ash-Shaf'i hold that since the amount decreased before theend of the hawl, zakah will not be paid on it. He would still be considered awrongdoer and disobedient to Allah for attempting to escape it. The earlyMuslims based their rationale on the 'ayahs in which Allah, the Exalted One,says: "Lo! We have tried them as We tried the owners of the garden whenthey vowed they would pluck its fruit the next morning, and made no reservation[for the will of Allah]. Then a visitation from your Lord came upon it whilethey were asleep. So the garden became a dark and desolate spot in the morning,as if it were plucked" [alMulk 17-20]. Allah punished those people foravoiding their obligation to the poor.

    Zakah, as such, will still be due and the person has to pay it because hisintention was to deprive the poor of their share in his wealth. This would besimilar to the case of a man who divorces his wife during his terminal illness.His evil intention calls for punishment as a redemptive act. Another case of asimilar nature would be that of a person who kills his benefactor so that hecould have his inheritance. In that case, Allah punishes him by depriving himof his inheritance.  

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