Post by Zameel on Jul 4, 2016 10:59:43 GMT
The following is a refutation of Atabek Shukurov’s misrepresentation of the Ḥanafī madhhab on one particular issue of fiqh. While there are a number of problems in his presentation of the Ḥanafī madhhab on various issues, the example discussed below was chosen because of its clarity. The example highlights Atabek’s irresponsible and careless attitude in presenting the Ḥanafī madhhab. Such a glaring and obvious mistake in an important issue of jurisprudence should serve as a warning to readers of the dangerous consequences of following his writings and so-called “fatwas”.
The Scenario
Atabek discusses a transaction in which a person offers to sell a commodity to someone, but does not conclude the sale on one fixed price. Instead, the sale is concluded on two or more prices depending on the date of payment.
For example, a person selling an item says: “If you pay on-spot, the price will be X. If you pay in one month, it will be Y (maybe a percentage increase on X), and if in two months, Z (a further percentage increase on X),” and so on. The buyer accepts this agreement, takes receipt of the item and departs. Thus, the sale was concluded on multiple prices (depending on the date of payment), and not on one fixed price.
While most Muslims will easily be able to identify this as a usurious transaction (when later payments are a percentage increase on the on-spot transaction) that is impermissible, Atabek says it is permissible and misuses two completely unrelated rulings from the Ḥanafī madhhab to justify it.
This is what Atabek said:
“Setting up two or more prices for the same commodity because of different conditions of the commodity or of something else is permissible; such as the price differing based on the time of payment. So for instance, if the buyer pays today the price is one thousand pounds, but if he pays tomorrow it will be two thousand. The price could differ for other reasons too, such as cheaper pricing for poor costumers, and a higher price for rich costumers.”
Atabek also went through the trouble of producing an Arabic translation of his article. He wrote:
Based on this, Atabek says in an “open letter” to Mufti Taqi ‘Uthmānī that a bank that offers to sell a house to a client without fixing one price, but concludes the deal on multiple different prices for different dates, the sale is valid. [1]
The two texts that Atabek (mis)uses to support this conclusion will be discussed further below. First, it will be demonstrated that the Ḥanafī madhhab clearly regards such a transaction as impermissible.
Ruling of the Ḥanafī Madhhab
The Ḥanafī madhhab is very clear on such a transaction: it is not permissible.
The imāms of the madhhab say in the Ẓāhir al-Riwāyah:
“When a person makes a sale, saying: ‘At a future date, it is at this price, and on-spot it is at this price,’ or says: ‘At X time, it is for so-and-so amount, at Y time, it is for so-and-so amount,’ and they depart on that, this is not permissible.” (Al-Aṣl, Dār Ibn Ḥazm, 2:436)
Imām al-Sarakhsī clarifies that the reason for this is that the amount the buyer owes is not known at the time of the transaction.
“When a transaction is concluded on the basis that at a determined future date it will be so-and-so amount, and on-spot it will be so-and-so amount, or at one month time it will be so-and-so amount and at two months’ time it will be so-and-so amount, it is impermissible, because it was not concluded on a known price.” (al-Mabsūṭ, Dār al-Ma‘rifa, 13:8)
The same is stated in Tuḥfat al-Fuqahā’ by ‘Alā’ al-Dīn al-Samarqandī, a well-known Ḥanafī text:
“If one were to make a sale, saying: ‘At a future date, it is for so-and-so amount, and on-spot it is for so-and-so amount,’ it is impermissible, because the price is unknown.” (Tuḥfat al-Fuqahā’, Dār al-Kutub al-‘Ilmiyya, 2:46)
The Ẓāhir al-Riwāyah further clarifies that if different prices are suggested for different dates in the bargaining phase, but then the buyer and seller conclude the sale on one fixed/known price, the sale is valid. (Al-Aṣl, Dār Ibn Ḥazm, 2:454) However, this is not what Atabek is suggesting. According to Atabek, a sale concluded on different prices for different dates of payment is permissible. And, as demonstrated above, this is at complete odds with the Ḥanafī madhhab.
Since Atabek wrote his article addressed to Mufti Taqī ‘Uthmānī, asking for his response, it should be noted that Mufti Taqī ‘Uthmānī has already clarified this ruling with reference to the passage from Sarakhsī’s Mabsūṭ quoted above.
After referring to this passage, Mufti Taqī ‘Uthmānī wrote:
“Were a seller to say, for example: ‘If you make the payment after a month, the commodity will be for ten, and if you pay after two months, it will be for twelve, and if you pay after three months, it will be fourteen,’ and they part on that, without specifying one of these options, leaving it to the buyer to decide which of them will be suitable for him in the future, the sale is impermissible by consensus…Regarding what some people do, of fixing the price of the commodity on the basis of the on-spot price of the transaction, and stating the added amount on the basis that it is a portion of the ‘gains’ of delaying payment, this is clear ribā. This is, for example, a seller saying: ‘I sell this commodity to you for eight rupees on-spot; if you delay payment by a month, then you have to pay two rupees on top of the eight,’…There is no doubt that this is a usurious transaction.” (Buḥūṭh fī Qaḍāyā Fiqhiyya Mu‘āṣirah, Wizārat al-Awqāf, p. 14-5)
In short, there is no ambiguity in the Ḥanafī madhhab on the impermissibility of this transaction.
Now, the two texts Atabek quotes to support his assertion will be discussed below.
First Text
First, Atabek quotes the following passage from Mukhtaṣar al-Qudūrī:
“Imam Quduri said: ‘It is permissible for the buyer to increase the price. And permissible for the seller to increase the commodity and decrease the price. And legal action will be taken towards that all.”
The Arabic for this passage is as follows:
However, this passage is completely irrelevant to the scenario at hand. This passage is referring to an agreement between the buyer and seller after the transaction has been concluded on one fixed price.
For example:
‘A’ sells a commodity to ‘B’ at a fixed price. They have each accepted. Now, as a gesture of goodwill, the buyer, ‘B’, says: “Actually, I’ll give you X amount more than that” and ‘A’ accepts. Now, that higher price will be regarded as the actual price ‘B’ owes to ‘A’. Or the seller says: “For the price you’re paying, I should give you more than just this one commodity, I’ll add this item to it,” or “Actually, it’s worth less than that, so I’ll reduce the price by X amount.” And ‘B’ accepts. In this case, ‘A’ will have to give the extra item/ ‘B’ will owe the reduced price.
Bābirtī clarifies this passage giving precisely this example:
“Someone buys an item for 100, and thereafter adds 10 for example. Or someone sells an item for 100, and then adds something else to the sold item, or reduces part of the price. This is valid.” (al-‘Ināyah, Amīriyyah, 5:270)
The important distinction here is that this passage is not referring to a fluctuation in the price that was agreed to at the time of concluding the transaction. It is something that is agreed to afterwards, that neither party is bound by until they mutually agree. At the time of the transaction, the commodity has to have a single fixed price.
Second Text
The second text Atabek quotes is as follows:
“He also said: “If a costumer says [to the tailor] ‘if you finish stitching today I will pay you one dirham, if tomorrow, half a dirham’, so if he stitches it today he gets one dirham, but if tomorrow he gets a standard fee according to Abu Hanifa as long as it is not more than half of a dirham. His two students said; both of the conditions are valid and the tailor gets paid depending on which time he finishes.””
The Arabic for this passage from Mukhtaṣar al-Qudūrī is as follows:
The important point to note here is that this is referring to a transaction of service (ijāra), not a sale (bay‘). The ruling of a sale in which two or more prices are stipulated for different dates at the time of the transaction has been categorically ruled to be impermissible in the madhhab, as demonstrated earlier.
This text is about the following scenario:
A person says to a tailor: “If you sew my garment today, I will give you one dirham, and if you sew it tomorrow, I will give you half a dirham.” This mas’ala is recorded in both al-Aṣl and al-Jāmi‘ al-Ṣaghīr from the books of Ẓāhir al-Riwāyah. There are three opinions on this scenario according to the imāms of the madhhab.
According to Imām Abū Ḥanīfah, the stipulated payment for the first day is valid, but for the second day is invalid (fāsid). His reasoning is as follows. The tailor is paid for the work/service (‘amal), not for the time he spends. Hence, the mention of “today” in the first statement is a demand to hurry the work (ta‘jīl), and is not part of what the transaction is on (ma‘qūd ‘alayh). If the tailor completes the work on the first day, only one fee has been stipulated: one dirham. Hence, that is what will be due. But if the tailor completes the work on the second day, since the word “today” in the first statement is of no consequence, two fees would have been stipulated for the second day: one dirham and half a dirham. The fee is therefore undetermined, and hence the transaction is impermissible. When a transaction is impermissible in this manner, ajr al-mithl (the normal fee given for such a work) is necessary. So if the work is completed on the second day, ajr al-mithl will be due.
According to Imām Zufar, the entire transaction is impermissible, and ajr al-mithl will be due regardless of which day the tailor completes the work. He analogises this to a sale. In a sale, setting up two different prices for different dates is invalid – and this is agreed upon in the madhhab. (And this is what Atabek says is permissible!) Imām Zufar also argues that since the service fee is for the work and not for the time, the two payments are being stipulated for both dates (today and tomorrow), making it undetermined on both dates. [2]
According to ṣāḥibayn [Imām Abū Yūsuf and Imām Muḥammad], the transaction with both clauses are permissible. One reasoning offered for ṣāḥibayn is that they analogise this to a different type of ijārah. If a person says to the tailor: “If you sew it in Persian style, I will give you one dirham, and if in Roman style, I will give you half dirham,” by agreement this is valid, and depending on the type of work the tailor does, whether Persian or Roman, he will be entitled to the stipulated payment. This is analogous to “khiyār al-ta‘yīn” (option of selecting) in a sale, in which the seller says to the buyer: “I have sold you one of these two items (and he stipulates their price) and leave it to you to decide which you will buy in the next three days.” The buyer can then choose one of the two items, and the sale will be valid. In the same way, the two different types of work are similar to two different commodities in a sale in which there is khiyār al-ta‘yīn. According to ṣāḥibayn, two different times in an ijārah can be regarded as two different types of work, hence the abovementioned transaction is valid in both its parts. [3]
The important point to take away from this is that this ruling is about a completely different type of transaction: ijārah. With regards to a sale, the madhhab is categorically clear that two or more different payments cannot be stipulated for different dates within the transaction. Moreover, even in this example of ijārah, there is disagreement in the madhhab, with Imām Abū Hanīfah saying the stipulated payment is valid only for the first date, not for the second.
Conclusion
In short, the above is a clear example of Atabek’s carelessness in presenting the Hanafī position. He deems something explicitly proscribed in the Hanafī madhhab as permissible, basing his conclusion on clearly unrelated rulings.
Based on the above, even in his (highly dubious) interpretation of buying a house on mortgage as being “wakālah” (and not an interest-bearing loan) [4], the transaction will still be impermissible because of the undetermined/fluctuating price.
So Atabek, if sincere, must accept he was wrong on the issue discussed above, and also – as a consequence – on the so-called permissibility of conventional mortgages, even according to the interpretation he presents.
[1] Atabek’s full article is available on his website at: shaykhatabekshukurov.com/2016/01/31/mortgages-an-open-letter-to-sheikh-taqi-uthmani/
[2] والفصل الثالث أن يقول إن خطته اليوم فلك درهم، وإن خطته غدا فلك نصف درهم فعند أبي حنيفة - رحمه الله - الشرط الأول جائز والثاني فاسد وعندهما الشرطان جائزان وفي القياس يفسد الشرطان وهو قول زفر - رحمه الله - كما في الفصل الأول.
ألا ترى أنه لو قال: في البيع إن أعطيت لي الثمن إلى شهر فعشرة دراهم وإن أعطيته إلى شهرين فخمسة عشر درهما كان العقد كله فاسدا للتردد بين التسميتين؛ ولهذا التردد أفسد أبو حنيفة - رحمه الله - الشرط الثاني فكذلك يفسد الشرط الأول (المبسوط، ج١٥ ص١٠٠
[3] وهما اعتبرا هذا بالفصل الثاني قالا: إنه سمى عملين وسمى بمقابلة كل واحد منهما بدلا معلوما فيجوز العقد كما في الفصل الثاني وهذا لأن عمله في الغد غير عمله في اليوم ولصاحب الثوب في إقامة العمل وفي كل وقت غرض صحيح وإنما يجب الأجر عند إقامة العمل ولا جهالة عند ذلك (المبسوط، ج١٥ ص١٠١)
[4] Atabek’s basic argument is that since the borrower (mustaqriḍ) is not at liberty to spend the loan as he pleases, but has to spend it on the house, he is in effect purchasing the house on behalf of the bank. But this does not follow. At most, it amounts to a qarḍ (loan) with a condition (sharṭ), and a qarḍ is not invalidated by an impermissible condition (القرض لا يبطل بالشرط الفاسد). The house never comes into the risk of the bank i.e. at no point in the transaction between the client and the bank will damages to the house be borne by the bank. This would suggest the bank never owns the house. The client simply borrows the money, purchases the house, and pays back the bank with interest. While the house may be held as rahn (collateral) by the bank until the owner pays back his debt, this in no way entails the bank has ownership of it.
The Scenario
Atabek discusses a transaction in which a person offers to sell a commodity to someone, but does not conclude the sale on one fixed price. Instead, the sale is concluded on two or more prices depending on the date of payment.
For example, a person selling an item says: “If you pay on-spot, the price will be X. If you pay in one month, it will be Y (maybe a percentage increase on X), and if in two months, Z (a further percentage increase on X),” and so on. The buyer accepts this agreement, takes receipt of the item and departs. Thus, the sale was concluded on multiple prices (depending on the date of payment), and not on one fixed price.
While most Muslims will easily be able to identify this as a usurious transaction (when later payments are a percentage increase on the on-spot transaction) that is impermissible, Atabek says it is permissible and misuses two completely unrelated rulings from the Ḥanafī madhhab to justify it.
This is what Atabek said:
“Setting up two or more prices for the same commodity because of different conditions of the commodity or of something else is permissible; such as the price differing based on the time of payment. So for instance, if the buyer pays today the price is one thousand pounds, but if he pays tomorrow it will be two thousand. The price could differ for other reasons too, such as cheaper pricing for poor costumers, and a higher price for rich costumers.”
Atabek also went through the trouble of producing an Arabic translation of his article. He wrote:
وتعيين ثمنين لسلعة واحدة لاختلاف سبب فيها أو في غيرها, فإنه جائز . والأسباب مختلفة مثل أن يختلف ثمن المبيع لأجل وقت الدفع : فإن دفع المبلغ اليوم فهو بألف , وإن دفعه غدا فبألفين . أو قد يختلف الثمن بأسباب أخرى بأن يكون مشتريان أحدهما غني والآخر فقير فيعين البائع ثمنا مختلفا لهما
Based on this, Atabek says in an “open letter” to Mufti Taqi ‘Uthmānī that a bank that offers to sell a house to a client without fixing one price, but concludes the deal on multiple different prices for different dates, the sale is valid. [1]
The two texts that Atabek (mis)uses to support this conclusion will be discussed further below. First, it will be demonstrated that the Ḥanafī madhhab clearly regards such a transaction as impermissible.
Ruling of the Ḥanafī Madhhab
The Ḥanafī madhhab is very clear on such a transaction: it is not permissible.
The imāms of the madhhab say in the Ẓāhir al-Riwāyah:
وإذا باع الرجل بيعا فقال: هو بالنسيئة بكذا وبالنقد بكذا، أو قال: هو إلى أجل كذا بكذا وكذا وإلى أجل كذا بكذا وكذا فافترقا على ذلك، فإنه لا يجوز
“When a person makes a sale, saying: ‘At a future date, it is at this price, and on-spot it is at this price,’ or says: ‘At X time, it is for so-and-so amount, at Y time, it is for so-and-so amount,’ and they depart on that, this is not permissible.” (Al-Aṣl, Dār Ibn Ḥazm, 2:436)
Imām al-Sarakhsī clarifies that the reason for this is that the amount the buyer owes is not known at the time of the transaction.
وإذا عقد العقد على أنه إلى أجل كذا بكذا وبالنقد بكذا أو قال إلى شهر بكذا و إلى شهرين بكذا، فهو فاسد لأنه لم يعاطه على ثمن معلوم
“When a transaction is concluded on the basis that at a determined future date it will be so-and-so amount, and on-spot it will be so-and-so amount, or at one month time it will be so-and-so amount and at two months’ time it will be so-and-so amount, it is impermissible, because it was not concluded on a known price.” (al-Mabsūṭ, Dār al-Ma‘rifa, 13:8)
The same is stated in Tuḥfat al-Fuqahā’ by ‘Alā’ al-Dīn al-Samarqandī, a well-known Ḥanafī text:
وَلَو بَاعَ وَقَالَ هُوَ بِالنَّسِيئَةِ كَذَا وبالنقد كَذَا فَهُوَ فَاسد لِأَن الثّمن مَجْهُول
“If one were to make a sale, saying: ‘At a future date, it is for so-and-so amount, and on-spot it is for so-and-so amount,’ it is impermissible, because the price is unknown.” (Tuḥfat al-Fuqahā’, Dār al-Kutub al-‘Ilmiyya, 2:46)
The Ẓāhir al-Riwāyah further clarifies that if different prices are suggested for different dates in the bargaining phase, but then the buyer and seller conclude the sale on one fixed/known price, the sale is valid. (Al-Aṣl, Dār Ibn Ḥazm, 2:454) However, this is not what Atabek is suggesting. According to Atabek, a sale concluded on different prices for different dates of payment is permissible. And, as demonstrated above, this is at complete odds with the Ḥanafī madhhab.
Since Atabek wrote his article addressed to Mufti Taqī ‘Uthmānī, asking for his response, it should be noted that Mufti Taqī ‘Uthmānī has already clarified this ruling with reference to the passage from Sarakhsī’s Mabsūṭ quoted above.
After referring to this passage, Mufti Taqī ‘Uthmānī wrote:
فلو قال البائع مثلا: إن أديت الثمن بعد شهر فالبضاعة بعشرة وإن أديته بعد شهرين فهو باثني عشر وإن أديته بعد ثلاثة أشهر فهو بأربعة عشر وافترقا على ذلك بدون تعيين أحد هذه الشقوق، زعما من المشتري أنه سوف يختار منها ما يلائمة فى المستقبل، فإن هذا البيع حرام بالإجماع...أما ما يفعله بعض الناس من تحديد ثمن البضاعة على أساس سعر النقد وذكر القدر الزائد على أساس أنه جزء من فوائد التأخير فى الأداء فإنه ربا صراح، وهذا مثل أن يقول البائع: بعتك هذه البضاعة بثماني ربيات نقدا، فإن تأخرت فى الأداء إلى مدة شهر، فعليك ربيتان علاوة على الثمانية سواء سماها فائدة أولا، فإنه لا شك في كونه معاملة ربوية (بحوث في قضايا فقهية معاصرة، وزارة الأوقاف، ص١٤-١٥
“Were a seller to say, for example: ‘If you make the payment after a month, the commodity will be for ten, and if you pay after two months, it will be for twelve, and if you pay after three months, it will be fourteen,’ and they part on that, without specifying one of these options, leaving it to the buyer to decide which of them will be suitable for him in the future, the sale is impermissible by consensus…Regarding what some people do, of fixing the price of the commodity on the basis of the on-spot price of the transaction, and stating the added amount on the basis that it is a portion of the ‘gains’ of delaying payment, this is clear ribā. This is, for example, a seller saying: ‘I sell this commodity to you for eight rupees on-spot; if you delay payment by a month, then you have to pay two rupees on top of the eight,’…There is no doubt that this is a usurious transaction.” (Buḥūṭh fī Qaḍāyā Fiqhiyya Mu‘āṣirah, Wizārat al-Awqāf, p. 14-5)
In short, there is no ambiguity in the Ḥanafī madhhab on the impermissibility of this transaction.
Now, the two texts Atabek quotes to support his assertion will be discussed below.
First Text
First, Atabek quotes the following passage from Mukhtaṣar al-Qudūrī:
“Imam Quduri said: ‘It is permissible for the buyer to increase the price. And permissible for the seller to increase the commodity and decrease the price. And legal action will be taken towards that all.”
The Arabic for this passage is as follows:
ويجوز للمشتري أن يزيد البائع في الثمن ويجوز للبائع أن يزيد في المبيع ويجوز أن يحط من الثمن , ويتعلق الاستحقاق بجميع ذلك
For example:
‘A’ sells a commodity to ‘B’ at a fixed price. They have each accepted. Now, as a gesture of goodwill, the buyer, ‘B’, says: “Actually, I’ll give you X amount more than that” and ‘A’ accepts. Now, that higher price will be regarded as the actual price ‘B’ owes to ‘A’. Or the seller says: “For the price you’re paying, I should give you more than just this one commodity, I’ll add this item to it,” or “Actually, it’s worth less than that, so I’ll reduce the price by X amount.” And ‘B’ accepts. In this case, ‘A’ will have to give the extra item/ ‘B’ will owe the reduced price.
Bābirtī clarifies this passage giving precisely this example:
إذا اشترى عينا بمائة ثم زاد عشرة مثلا أو باع عينا بمائة ثم زاد على المبيع شيئا أو حط بعض الثمن جاز
“Someone buys an item for 100, and thereafter adds 10 for example. Or someone sells an item for 100, and then adds something else to the sold item, or reduces part of the price. This is valid.” (al-‘Ināyah, Amīriyyah, 5:270)
The important distinction here is that this passage is not referring to a fluctuation in the price that was agreed to at the time of concluding the transaction. It is something that is agreed to afterwards, that neither party is bound by until they mutually agree. At the time of the transaction, the commodity has to have a single fixed price.
Second Text
The second text Atabek quotes is as follows:
“He also said: “If a costumer says [to the tailor] ‘if you finish stitching today I will pay you one dirham, if tomorrow, half a dirham’, so if he stitches it today he gets one dirham, but if tomorrow he gets a standard fee according to Abu Hanifa as long as it is not more than half of a dirham. His two students said; both of the conditions are valid and the tailor gets paid depending on which time he finishes.””
The Arabic for this passage from Mukhtaṣar al-Qudūrī is as follows:
وإن قال إن خطته اليوم فبدرهم وإن خطته غدا فبنصف درهم فإن خاطه اليوم فله درهم وإن خاطه غدا فله أجر مثله عند أبي حنيفة رحمه الله لا يتجاوز به نصف درهم . وقالا: الشرطان جائزان وأيهما عمل استحق الأجرة
The important point to note here is that this is referring to a transaction of service (ijāra), not a sale (bay‘). The ruling of a sale in which two or more prices are stipulated for different dates at the time of the transaction has been categorically ruled to be impermissible in the madhhab, as demonstrated earlier.
This text is about the following scenario:
A person says to a tailor: “If you sew my garment today, I will give you one dirham, and if you sew it tomorrow, I will give you half a dirham.” This mas’ala is recorded in both al-Aṣl and al-Jāmi‘ al-Ṣaghīr from the books of Ẓāhir al-Riwāyah. There are three opinions on this scenario according to the imāms of the madhhab.
According to Imām Abū Ḥanīfah, the stipulated payment for the first day is valid, but for the second day is invalid (fāsid). His reasoning is as follows. The tailor is paid for the work/service (‘amal), not for the time he spends. Hence, the mention of “today” in the first statement is a demand to hurry the work (ta‘jīl), and is not part of what the transaction is on (ma‘qūd ‘alayh). If the tailor completes the work on the first day, only one fee has been stipulated: one dirham. Hence, that is what will be due. But if the tailor completes the work on the second day, since the word “today” in the first statement is of no consequence, two fees would have been stipulated for the second day: one dirham and half a dirham. The fee is therefore undetermined, and hence the transaction is impermissible. When a transaction is impermissible in this manner, ajr al-mithl (the normal fee given for such a work) is necessary. So if the work is completed on the second day, ajr al-mithl will be due.
According to Imām Zufar, the entire transaction is impermissible, and ajr al-mithl will be due regardless of which day the tailor completes the work. He analogises this to a sale. In a sale, setting up two different prices for different dates is invalid – and this is agreed upon in the madhhab. (And this is what Atabek says is permissible!) Imām Zufar also argues that since the service fee is for the work and not for the time, the two payments are being stipulated for both dates (today and tomorrow), making it undetermined on both dates. [2]
According to ṣāḥibayn [Imām Abū Yūsuf and Imām Muḥammad], the transaction with both clauses are permissible. One reasoning offered for ṣāḥibayn is that they analogise this to a different type of ijārah. If a person says to the tailor: “If you sew it in Persian style, I will give you one dirham, and if in Roman style, I will give you half dirham,” by agreement this is valid, and depending on the type of work the tailor does, whether Persian or Roman, he will be entitled to the stipulated payment. This is analogous to “khiyār al-ta‘yīn” (option of selecting) in a sale, in which the seller says to the buyer: “I have sold you one of these two items (and he stipulates their price) and leave it to you to decide which you will buy in the next three days.” The buyer can then choose one of the two items, and the sale will be valid. In the same way, the two different types of work are similar to two different commodities in a sale in which there is khiyār al-ta‘yīn. According to ṣāḥibayn, two different times in an ijārah can be regarded as two different types of work, hence the abovementioned transaction is valid in both its parts. [3]
The important point to take away from this is that this ruling is about a completely different type of transaction: ijārah. With regards to a sale, the madhhab is categorically clear that two or more different payments cannot be stipulated for different dates within the transaction. Moreover, even in this example of ijārah, there is disagreement in the madhhab, with Imām Abū Hanīfah saying the stipulated payment is valid only for the first date, not for the second.
Conclusion
In short, the above is a clear example of Atabek’s carelessness in presenting the Hanafī position. He deems something explicitly proscribed in the Hanafī madhhab as permissible, basing his conclusion on clearly unrelated rulings.
Based on the above, even in his (highly dubious) interpretation of buying a house on mortgage as being “wakālah” (and not an interest-bearing loan) [4], the transaction will still be impermissible because of the undetermined/fluctuating price.
So Atabek, if sincere, must accept he was wrong on the issue discussed above, and also – as a consequence – on the so-called permissibility of conventional mortgages, even according to the interpretation he presents.
[1] Atabek’s full article is available on his website at: shaykhatabekshukurov.com/2016/01/31/mortgages-an-open-letter-to-sheikh-taqi-uthmani/
[2] والفصل الثالث أن يقول إن خطته اليوم فلك درهم، وإن خطته غدا فلك نصف درهم فعند أبي حنيفة - رحمه الله - الشرط الأول جائز والثاني فاسد وعندهما الشرطان جائزان وفي القياس يفسد الشرطان وهو قول زفر - رحمه الله - كما في الفصل الأول.
ألا ترى أنه لو قال: في البيع إن أعطيت لي الثمن إلى شهر فعشرة دراهم وإن أعطيته إلى شهرين فخمسة عشر درهما كان العقد كله فاسدا للتردد بين التسميتين؛ ولهذا التردد أفسد أبو حنيفة - رحمه الله - الشرط الثاني فكذلك يفسد الشرط الأول (المبسوط، ج١٥ ص١٠٠
[3] وهما اعتبرا هذا بالفصل الثاني قالا: إنه سمى عملين وسمى بمقابلة كل واحد منهما بدلا معلوما فيجوز العقد كما في الفصل الثاني وهذا لأن عمله في الغد غير عمله في اليوم ولصاحب الثوب في إقامة العمل وفي كل وقت غرض صحيح وإنما يجب الأجر عند إقامة العمل ولا جهالة عند ذلك (المبسوط، ج١٥ ص١٠١)
[4] Atabek’s basic argument is that since the borrower (mustaqriḍ) is not at liberty to spend the loan as he pleases, but has to spend it on the house, he is in effect purchasing the house on behalf of the bank. But this does not follow. At most, it amounts to a qarḍ (loan) with a condition (sharṭ), and a qarḍ is not invalidated by an impermissible condition (القرض لا يبطل بالشرط الفاسد). The house never comes into the risk of the bank i.e. at no point in the transaction between the client and the bank will damages to the house be borne by the bank. This would suggest the bank never owns the house. The client simply borrows the money, purchases the house, and pays back the bank with interest. While the house may be held as rahn (collateral) by the bank until the owner pays back his debt, this in no way entails the bank has ownership of it.