Question
(#062)
Is there something in Muslim law that when a dispute or something is taken to
court, that a cash payment outside of the judicial system is a preferable way
of settling the dispute? Or something along these lines? Are you able to
point me to a reference?
Thanks
Cheers
Answer
بسم الله الرحمن الرحيم
السلام عليكم و رحمة الله و بركاته
حامدا و مصليا و مسلما
Muhtaramah
We received your query regarding monetarily settling a dispute outside court.
Our response is as follows:
In Islaam whenever a dispute arises then the first plan of action is that the dispute and disagreement should be mutually solved. To reconcile and solve the dispute is called Sulh (reconciliation) in Islaam.
If for some reason the dispute cannot be solved then they may present themselves to the Muslim Qaadi (Muslim judge).. Whereby the claimant will need to provide proof or evidence for his claim otherwise the defendant will be asked to take an oath.
(Majmaul Anhur- 253/2- Beirut)
Sulh has been categorically mentioned in the Noble Qur’aan and the Traditional narrations. There is also Ijmaa (consensus) of its permissibility.
Allah Ta’alaa says in the Noble Qur’aan:
الصُّلْحُ خَيْرٌ
“There is goodness in reconciliation”
إِنْ طَائِفَتَانِ مِنَ الْمُؤْمِنِينَ اقْتَتَلُوا فَأَصْلِحُوا بَيْنَهُمَا فَإِنْ بَغَتْ إِحْدَاهُمَا عَلَى الْأُخْرَى فَقَاتِلُوا الَّتِي تَبْغِي حَتَّى تَفِيءَ إِلَى أَمْرِ اللَّهِ فَإِنْ فَاءَتْ فَأَصْلِحُوا بَيْنَهُمَا بِالْعَدْلِ وَأَقْسِطُوا إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِينَ (9) إِنَّمَا الْمُؤْمِنُونَ إِخْوَةٌ فَأَصْلِحُوا بَيْنَ أَخَوَيْكُمْ وَاتَّقُوا اللَّهَ لَعَلَّكُمْ تُرْحَمُونَ
“If there is discordance between two groups of the Muslims then reconciliation should take place…”
Similarly the Fuqaha have cited various narrations which mention the permissibility of Sulh.
(Badaaius Sanaai- 47/5- Maktabatur Rasheedeya)
Allaama Mugni Rahimahullah has declared that there is Ijmaa (consensus) on the permissibility of Sulh. (308/4 Al Mughne adapted from Qaamoosal Fiqh 227/4)
The chapter of Sulh is a very lengthy chapter which the Fuqaha (Islamic jurists) have expounded on.
We will therefore mention some of the basic principles of Sulh which have been mentioned in the renowned classical Hanafi masterpiece “Badaaius Sanaai” authored by Malikul Ulama Imaam Alaaud Deen Abe Bakr bin Suood Alkaasaany Al-Hanafi Rahimahullah who had passed away in 587 Hijri.
Principle and Fundamental issues in Sulh:
There are two fundamental issues in Sulh as there is in other transactions. The fundamental principle of a transaction is of an offer and its acceptance. The offer will take place from the defendant and the other party will make the acceptance.
(Badaaius Sanaai- 48/5- Maktabatur Rasheedeya)
Conditions for Sulh:
1) The person enacting the reconciliation will need to be of understanding (mentally capable). Therefore, Sulh will not take place from a insane person or a person whose intellectual capacity is unstable according to Shariah. An immature child who possesses sufficient understanding according to Islaam will be able to reconcile.
2) If the guardian of an immature child is enacting the reconciliation then there should be no apparent and blatant loss for the child.
3) The guardian who is enacting the reconciliation on behalf of the child should have the authority to regulate and administrate in the child’s wealth.
(Badaaius Sanaai- 48/5- Maktabatur Rasheedeya)
Conditions relating to the exchanged commodity of Sulh:
1) The item should be regarded as wealth in Shariah. Therefore, Sulh cannot be done on items such as alcohol or a dead corpse (an animal which has died due to natural causes or is killed contrary to the dictates of Shariah) because these articles are not regarded as wealth or a commodity in Shariah.
(Badaaius Sanaai- 51, 59/5- Maktabatur Rasheedeya)
2) If there is a need for the commodity which is being exchanged to be physically possessed. Then it will be necessary for the item to be stipulated. This stipulation will be in accordance to the norm of society. However if this is not the case and the taking of possession is not necessary then the stipulation of the item will not be necessary.
(Badaaius Sanaai- 51/5- Maktabatur Rasheedeya)
3) It will be necessary that the item upon which the reconciliation is taking place should be in the ownership of the defendant.
(Badaaius Sanaai- 59/5- Maktabatur Rasheedeya)
Conditions in relation to the rights:
1) The right which is being disputed about should be a right which is related to the mankind and the creation and not a right in relation to the creator ie Allah Ta’ala. For example rights of Allah Ta’ala are like the law in relation to theft, adultery, intoxication etc.
(Badaaius Sanaai- 59/5- Maktabatur Rasheedeya)
2) The right must be of such a nature that an exchange can be taken in lieu of it. Sulh can not be enacted in such rights which one cannot take a exchange such as Shuf’ah.
(Badaaius Sanaai- 61/5- Maktabatur Rasheedeya)
3) The right of the reconciler should be considered to be a right. For example the husband denies the lineage of his child and the wife wishes to make Sulh in such a matter.
Reconciliation can be done in three ways. Either by Iqraar (confession), Inkaar (denial) or Sukoot (silence).
Reconciliation through confession, acknowledgement and affirmation:
In this case the defendant acknowledges the claim of the claimant. Thereafter a monetary portion is stipulated for reconciliation. This is permissible according to Shariah.
Reconciliation through refusal and rejection;
In this scenario the defendant genuinely denies the claim of the claimant. However the defendant reconciles in order to save himself the trouble of going through the court procedures. This is permissible according to the Fiqh of Imaam Abu Haneefa Rahimahullah
(Badaaius Sanaai- 48/5- Maktabatur Rasheedeya).
Reconciliation through taciturnity and silence:
In this case the defendant does not refuse the claim nor accepts it. This is permissible according to the Fiqh of Imaam Abu Haneefa Rahimahullah.
(Badaaius Sanaai- 48/5- Maktabatur Rasheedeya)
From the above we come to learn that Sulh (reconciliation) is a practice which is considered in Shariah. Therefore it will be permissible to have a cash settlement outside the court. However due to the intricacies which the Fuqaha (Islamic Jurists) have mentioned one can not apply ones situation on the above principles without consulting and mentioning ones specific scenario to a knowledgeable Aalim (scholar of Deen).
والله تعالى اعلم و علمه اتم و احكم
Muhammad Irshad Motara
20th Rabee’ul Awwal 1434
2nd Feburary 2013
Checked and approved by:
Mufti Musayyab Saahib.
