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The grammars of adjudication

Zouhair Ghazzal

Chapter 3: Why status matters: Contractual settlements and propertyrights in light of their transaction costs

Texte intégral

“The old should be left to its perennial character [al-qadīm yutrak ‘ala qidameh]” (Majalla, article 6)
“The essence of speech is in its literal meaning [al-al fi-l-kalām al-aqīqa]” (Majalla, article 12)

1In any society relationships of different types could be conceptualized as contractual. Only few, however, might have the legal “equivalent” of a contract, meaning that in cases of conflict or litigation, an action could be brought to the corresponding legal authorities. But many contractual relationships, however, do not have an “equivalent” of a legal recognition either, in the form of a statute, code, or a similar codified material. There are several reasons why such a discrepancy might arise, but probably the most common has to do with the fact that legal formulas have to be “invented” first—invention ought to be taken very strongly, as an act of radical imagination, one that involves all the creative forces of the imaginary. In effect, the invention of a formula—or a “type-contract”—that fits within a particular legal order is no easy matter, especially in that it takes several generations of testing and experimentation before a formula or code “fits” well within the system and meets the needs of society. It was, indeed, for this very reason, that once the Fertile Crescent and the rest of the Ottoman Empire had been associated to a quasi-mercantile economy whose requirements were monetary transactions and contractual settlements that were not solely status-oriented, that the imperial center found itself in a position to bypass anafism on many instances, while all kinds of codes had to be transplanted from French law into the Ottoman system. Another example would be the “Reception” of Roman law in early medieval Europe, a complex phenomenon that implied the learning and teaching of Roman terminology, prior to the acceptance of particular rules and practices. In modern law the Napoleonic Code civil (1804) stands out as the biggest of all inventions, one which was to be emulated first throughout Europe and then in the Third World in its colonial and post-colonial periods. (The Ottomans never adopted the Code civil into their system, and opted instead for a rejuvenation of anafism in the Majalla (1877), which became the de facto “civil code” of the Empire.) But there are, however, “inventions” or “receptions” of a much smaller scale, ones that only add a practice to the system, which would have remained imperceptible were it not for a later assessment that would give it its due place.

2But there are many contractual relationships with no clear legal protection—one that would at least ensure a routinized legal action—for a variety of social, political, and religious reasons. When, for example, land labor is mostly, if not solely, based on corvée, the peasant laborers, even though in a de facto contractual relationship, are not situated under any legal protection. The “contractual” relationship would then be reduced to the informal customary relationships of the village and household, or to the ones that regulate the affairs of the peasantry with its landlords and tax-farmers, some of which achieve the status of law. Thus, for example, when in the 1840s, or during the early period of reforms right after the Egyptian withdrawal, groups of peasant-farmers began complaining to regional councils against their landlords and tax-farmers, they always did so as a group (ahālī) defined in terms of their village and locality. But since there was not much “legislation” or contractual forms that would have protected them from abuse, the council members, who acted as legal honoratiores, had to resort to extra-legal euphemisms in terms of “fairness” and the “well-being of the Empire and its ra‘āyā” (see Chapter 9 infra). The creation of a legally protective framework thus comes only when the group as a whole has been emancipated from its corvée status.

  • 1 Henry Maine, Ancient law, 1864, 165.
  • 2 Max Weber, Economy and Society, 2:697; K. Zweigert and H. Kötz, An Introduction to Comparative Law, (...)
  • 3 Louis Gernet, Droit et institutions en Grèce antique (Paris: Champs Flammarion, 1982), 35: “Dans la (...)

3Status mattered a lot in Ottoman societies, and hence one would expect that its impact on contractual settlements was to be equally influential. In effect, status mattered in a variety of situations not necessarily related to law. Thus, religious institutional affiliation provided its bearer a higher status, but so did a bureaucratic post, or a nisba to a family, clan, or ūfī order. The problem is then to see how such privileges translate into status contracts. One could follow here the broad assertion by Sir Henry Maine, who stated in his Ancient Law (1864), that “the movement of the progressive societies has hitherto been a movement from Status to Contract.”1 Or, along a similar conceptual line, Max Weber’s assertion that the triumph of the purposive over the status (customary) contract, while the freedom of contract itself is correlative to the rise of the modern state and its rationalized legal order,2 all of which are of great help in understanding the nature of the contractual settlements that we will be reviewing beginning with the present chapter. One should also keep in mind Louis Gernet’s reminder that what is transmitted with property and contractual relations is not simply the tangible object itself (what the fiqh refers to as the ‘ayn), but, more importantly, an entire tradition, which the ancients visibly translated into rituals, but whose presence in modern law should not be underestimated.3

4In Ottoman societies contractual settlements overlapped with status in varieties of ways, among them, and most importantly, the ability to secure and impose contractual arrangements because of familial, religious, or bureaucratic (sultanic) privileges. Such privileges, however, were not limited to the contract as such, but also to the proceedings of the court hearings where a particular status affiliation could support the veracity of a testimony, especially since the sharī‘a system did not rest on a cross-examination of witnesses. Consider, for example, our first case below (C 3-1), which we will discuss in detail once we are done with our preliminary remarks, and which was a hardly concealed debt, and as in many debt-arrangements, the lender enjoyed a high status and was member of the then declining Shihāb family of Mount Lebanon. Thus, even though that region was more advanced in its credit system than the rest of Greater Syria, the debt-as-loan had to conceal itself in a contract of sale of silk between plaintiff and defendants. The point here is that even by the 1840s debts could not be openly construed as loans bearing an interest, and had to follow a parochial claim of a “harm” inflicted upon the defendants because of an alleged non-performance. But such procedural fictions, because of their complexity and the legal costs they involved, were usually best practiced by the wealthiest groups, including non-Muslims like the Shihābs. Many of the cases that we will be examining either involved a re-working of the terms of the agreement between family members of those privileged groups, or else a bargaining, as in our first case below, between the dominant and the dominated groups (e.g., tenant-farmers renegotiating the modality of their debt).

  • 4 The Ottoman Mejelle-i Ahkam-i ‘Adliyye (Majalla) was promulgated in 1877 as the Civil Law of the Ot (...)
  • 5 Oussama Arabi, “Contract Stipulations (Shurū) in Islamic Law: The Ottoman Majalla and Ibn Taymiyya (...)

5Of course, even when in a society the bulk of contracts—or the ones that economically mattered the most—were based on status, that did not mean that the middle and popular classes did not participate in contractual settlements of their own. The point here is that the importance of status is accorded to society as a whole. In the previous Chapters (1 & 2), we have seen how the juristic typology among scholars was by and large the outcome of the special status that the latter accorded to one another’s writings. Similarly, status contracts are very much, though not exclusively, a product of rank, prestige, and wealth. It was only by the 1860s and 1870s that another logic begins to emerge, and I argue later in the chapter that the Majalla (1877),4 by placing the problematic of “offer and acceptance” (ījāb wa-qabūl) right at the forefront of its contractual rules, “opened” the bargaining process, at a time of increased monetization, to one where the formalities of offer and acceptance had at least to be looked upon as evidence. But it was only in 1922 that an “explanatory memorandum” to the Majalla conceded that the addition of stipulations to the sale contract, which is inadmissible for the anafīs, must be adopted based on the position of the anbalīs.5 If our assumptions are correct—and regrettably research on the Majalla’s era, and the niāmī courts in particular, has been so scant that any generalization on that transitional period proves risky—then once we move from status contracts to a more open and freer bargaining, evidence of a contractual settlement becomes more of a burden to both the contracting parties and the courts—one needs only to think of the importance accorded to “consideration” in nineteenth-century American common law.

  • 6 The odyssey of the modern secular civil codes in Islamicate societies began when the Majalla was re (...)

6But even when purposive contracts begin to predominate in a process of quasi-monetization, or thanks to a reform of external influence (e.g., the Napoleonic codes), status still matters a lot, and it is possible to argue that its importance has not withered with modernity. Besides the fact that modern civil codes contain many residues of the past,6 and should therefore be looked upon as a continuum with tradition, it is no difficult matter in non-democratic societies to find individuals or groups, often directly linked to the state, that would impose great limitations on the freedom of contract in hope of maintaining a monopoly over the circulation of commodities and their production.

The predominance of status contracts in agrarian societies

  • 7 As pointed out in George Young, Corps de droit Ottoman (Oxford, 1907), who footnoted some major dif (...)

7A history of contractual settlements between the end of the eighteenth and the first half of the nineteenth century invariably leads to the realization that not much has changed in terms of the predominantly agrarian nature of the societies in Greater Syria and the Fertile Crescent, an outcome of the inherent weaknesses of the commercial classes (or mercantilism in general). The significant changes only came through by the second half of the nineteenth century, in particular with the promulgation of the Majalla as the new contractual code in the late 1870s, not to mention the newly drafted commercial and penal codes, whose original material was French, but whose departures from the latter should not be underestimated.7

  • 8 In the sense of Marshall Hodgson, Venture of Islam, vol.1 (Chicago, 1974), 107-9, as agrarian socie (...)

8The agrarianate8 nature of those societies can be detected from the contractual settlements that centered mostly on property titles and only little on the exchange of fungibles, for which no sophisticated codes ever evolved. Thus, while the bulk of exchange reflected the consensual nature of those societies in terms of such values as honor, family, socio-economic networks, and inequalities imposed by hierarchy and status, it was nevertheless mostly limited—at least in its most significant aspects—to landed property. Such a restricted exchange gave birth to a law of contract, which despite its sophistication in some areas, was even more limited by the conditions of property and the domination of state ownership in agriculture. Thus, not only were land titles a major obsession, but, even more so, exchange worked solely in terms of such substantive notions as fairness, equality, and simultaneous delivery. Transaction costs, which usually consist in the ability to bargain, negotiate, find the relevant information on possible partners or buyers, and the taking of risks in a non-simultaneous exchange, were minimized by limiting exchange, whenever possible, to the family and clan, or at best to one’s socio-economic network. Within such a framework, one that precluded individualism and competition or the harsh and risky nature of individual deals, contracts were not open for future liabilities such as a possible assessment of damages in the case of non-performance. Indeed, the law of contract was mostly limited to title restitution in the case of usurpation (ghab), while it avoided venturing over issues of compensation for damages or injury, for which it was not prepared. The remedy for usurpation was therefore limited to a restitution of the title to the plaintiff, without further compensation for damages. Moreover, genuine cases of usurpation were rare, in particular that allegations for illegal occupation (wa‘ yad) became the norm and served as procedural fictions to furnish evidence for a property title. Thus, even though legal subterfuges, known as iyal, were not foreign to anafism (beginning with a treatise by Shaybānī on the matter), and served as means for expanding substantive aspects of the fiqh that could not have been formulated otherwise, the procedural fictions that flourished in Ottoman times, and which incorporated notions of litigation (khuūma) with evidence (bayyina), served mostly as evidentiary tools in the restitution and transfer of property titles (see Table 2-2 supra), without, however, touching much on substantive issues.

9If contract is to be generally looked upon as a total phenomenon rather than be limited to exchange, the realization will soon come that in such societies the symbolic nature of exchange, whether ex gratia or for other more mundane purposes, was what had prevailed throughout the Ottoman period. In fact, whenever we look at economic history in association with the legal institutions that make exchange possible, there is an immediate realization of the fragile nature of contract, which was mostly geared towards quasi-simultaneous exchange: both obligation and an allocation of damages become superfluous as the notion of contract is narrowed to its bare minimum. Contract becomes significant and assumes a wider more complex role only when the transaction cannot be immediately fulfilled and an uncertainty hovers over performance: obligation would then come into the picture as a significant improvement. anafī practice, however, has little to say on obligations (iltizāmāt, or mūjibāt) because it mostly assumes the immediate delivery of the amwāl, and only in the case of debts, which cannot be solely associated with a tangible object (‘ayn), is there an explicitly stated future obligation. Debts were thus used in procedural fictions for title restitution precisely because the promise to deliver was tied to a future obligation. “Executory exchange” had therefore to wait for the niāmī courts of the second Tanīmāt, but in the absence of detailed studies of the proceedings of those courts, it is impossible to guess how far it was enforced.

10But the limitations on contracts notwithstanding, the courts had nevertheless to construe their cases on what looked like hard bargaining and evidence, and the idea was to create objective (hence ritualized) criteria of negotiation which avoided conflicting individual wills. In effect, conducting negotiations on the uncertain grounds of competing individuals was a costly operation that the courts could not have possibly handled. Procedures went therefore through safer and more routinized routes which tied bargaining with few variables such as property titles and fair pricing, while evidence either came in the form of direct witnessing, or else was an outcome of well thought out procedural fictions.

11Procedural fictions (or fictitious litigations)—I use both interchangeably—construed around the notion of “fair price,” sealed each case with the idea that both parties bargained fairly for the ajr al-mithl, cutting any remote possibility that the ruling might be revoked on the basis that the price was unfair. Procedures notwithstanding, the just-price notion reflected values of commodities not assessed in terms of labor or production, but with reference to the nature of the things themselves, or to their intrinsic value (al-qīma al-aqīqiyya). The procedural fiction thus consisted in positing the intrinsic value as the just price, or at least as close to one another as possible. Moreover, not only the just price had been duly bargained for, but even challenged by a third party (e.g., in some sharecropping contracts, see below). In such cases, the just-price procedure was no more than a device to legitimize the low rent. (A modern system would accept conflicts of interest as part of the bargaining process that the courts learn how to handle.)

12Even though the notion of property as māl was broad enough to include all kinds of fungibles and non-fungibles, the bulk of transactions centered by and large on landed properties, and many procedural fictions, constructed on the notion of illegal usurpation, aimed at inter-family transfers of title deeds. The remedy for usurpation was therefore limited to a restitution of the allegedly lost title to the plaintiff (or the defendant, depending on the construction of the case), without any damage compensation. The system as a whole was therefore ill prepared to deal with the exchange of fungibles, in conjunction with a freely competitive market with different and conflicting interests. The objective criteria of liability and evidence have also greatly contributed in creating a system where formalism prevails in the dubious process of fact-finding. Thus, in criminal homicides, for example, what was known as “the tool of the killing” (ālat al-qatl) was enough all by itself to serve as an objective criteria to determine intention (e.g., a sharp metallic object could not be casually used with no intent to kill), and to serve as the corpus delicti. In the mu‘āmalāt cases the objectification of evidence came at three interrelated levels. First, custom came to be perceived as a crucial reference for judicial decision making, reducing the possibility for a plaintiff to pose the claim that a misunderstanding of some sort took place because the contractual habits of a particular locality were not taken into consideration (see Chapter 1 supra). Second, cases that involved a title transfer—even over the administration of a waqf (Chapter 6 infra)—were generally construed around the notion of a fictitious khuūma, which gave both parties the occasion to provide their case with a semblance of a bargaining, which in itself was “evidence” that both parties were firm behind their positions. Third, and in various contractual practices, anafīs have pushed for all kinds of external signs of consent—particularly in speech, since a record was anyhow perceived to be more binding—so as to minimize a messy trial in the case of non-performance. In short, the system opted for objective criteria in speech and behavior, and defined them as clearly as possible, rather than open the way for various socio-economic practices to competitively find their niche within the judicial language of the courts.

13There was probably even more formalization to come in the 1870s and later. For one, such a change could be perceived in the Majalla itself and in the way a more open contractual realism began to be forged. Such a change is noticeable, for example, in the way the offer-and-acceptance formula, which was known in the anafī literature as ījāb wa-qabūl, while confusingly marginal even in the late shurū manuals such as the Radd, achieved a central status in the Majalla. This was probably due to the socio-economic changes that became even more visible by the second half of the nineteenth century. By that time, the situation must have been increasingly in favor of “open” contractual settlements when exchange had to opt to more goods and services, while land, thanks to the 1858 Land Code, became even more commercialized. The Majalla, which in its core integrated the anafī law of contract, reconstructed that code by giving the ījāb notion the center stage it always lacked in the more canonical formulations.

Limitations of Hanafi contracts

  • 9 Abdul-Razzāq Sanhūrī, Maādir al-aqq fi-l-fiqh al-Islāmī, 6 vols in 2 (Beirut: Dār Iyā’ al-Turāth (...)

14It is known that anafīs generally accept several contractual forms, which, however, scholars have refrained from subsuming under one broad formula, so that there is no general law of contracts as such but only individual rules relating to sale, hire, tenancy, sharecropping, partnership, wills and inheritance, marriage and divorce, and debt. Following Kasānī’s Badā’i‘ al-anā’i‘, the Egyptian legalist ‘Abdul-Razzāq al-Sanhūrī detected eighteen different contractual forms,9 which most anafī treatises adopted but with no particular order that would point to their interconnections and historical underpinnings, or that at least would bring some under particular headings. In that respect, even the structural organization of the various shurū manuals in terms of the order of chapters, sections, and headings, is not that helpful either and might lead to confusion. However, we know for certain that the contract of sale was the norm and that other contracts—in particular those related to hire—were construed in analogy to sale, hence the notion of tamlīk al-manfa‘a (“the possession of usufruct”) in tenancy contracts.

15The difficulty in creating a general theory of contracts, and the proliferation of individualized contracts throughout the Ottoman period, only point to the status of law in such societies and its effect (or lack thereof) on the productive forces of society. To begin with, if we agree on defining anafī practice as a “special law,” meaning a set of normative rules, which would include both customary practices and the ones administered by the fiqh, and which create societal settlements without much state intervention, then the proliferation of contractual forms and their corollary settlements in the courts (which usually required procedural fictions), could be explained by this lack of centralized power as far as law is concerned. To be sure, there is no immediate correlation—or a causal relationship—between a centralized state and a coherent law of contract, property, tort and crime, but the point is that it would be very difficult to achieve a minimum of consistency without some minimal governmental regulations working for that purpose. Otherwise, society would be left to its own mix of customary norms and the rules that it inherited from previously influential traditions. Moreover, anafism could hardly be described as a system of precedent, judge-made law, or case law for that matter. All such notions would assume, again, the existence of a powerful central state closely monitoring the activities of the courts, in addition to a system of keeping track of precedent from all adjudicated cases with the aim at creating a typology of relevance among them. The Ottoman state was neither centralized nor decentralized (it was probably a “confederated” state), and such terms are usually only relevant in the context of the European history of Absolutism and the nation-states that followed. In those cases, centralization would not only have implied a “control” of the populations and their resources, but rather a process of control through homogenization, individualization, and discipline. By contrast, the Ottoman state looked more like a confederation of societal systems loosely linked together, to the point that when the state had to create its own legislation—mostly to regulate the affairs of its own bureaucracy—it established a system parallel to the sharī‘a courts, which in many instances functioned quite differently from the latter and was “outside” its preoccupations.

16To be sure, a centralized state, in the rare occasions when it can exist at a particular historical juncture, is an outcome of societal conditions which in turn push towards law reforms. Thus, a liberal laissez-faire economics pushes towards “free contracts” and legal formalism, while the nature of the economies of the Ottoman Empire, in all their privileges and status hierarchies, would favor judicial practices with very partial rationalizations, at least ones that would tend to favor groups whose sense of mercantilism might be advantageous to society. The partial rationalizations that we tend to see in many of the Asiatic empires, even if they turn out to be effective, end in the last resort as state measures for a better management of the fiscal resources. In other words, they rarely connect with other forms of rationalization, and hence seldom reshape society on new grounds.

  • 10 See Chapter2, “The culture of judges.”

17Finally, the nonexistence of a general law of contract is in relation to the organization of the judiciary, which is probably the most influential factor among all explored thus far. In fact, most members of the judiciary were recruited from small ‘ulamā’ circles which for the most part adhered to the tradition of their school, and which for the later part of the Ottoman period meant being faithful to interpretation through the shurū texts.10 The point here is that in a non-competitive atmosphere where judges, muftīs, and jurists were all drawn from the same pool and all shared the same education, with careers that often overlapped between the various judicial functions, there was no motivation to go beyond what the tradition had already prescribed, while mujtahids maintained their discretionary powers by adding to those layers of opinions. In short, abstraction, codification, and homogenization are all tools of control and centralization of power, which by and large proved unnecessary for the societies under study, but all of which became a major concern throughout the Tanīmāt.

18Despite the confusion that reigns in understanding the nature of contracts and the historical order in which they began to appear since the formative period of the fiqh, the contractual form known as the ījāb wa-qabūl does seem to be the most general one in that it is neither specific to a particular type of contract, such as hire or sale, nor is it linked to conditions that would render it impractical. But it is uncertain whether the “offer and acceptance” form was historically the oldest of all contracts, or whether the other contractual types were derived from it in one way or another. In fact, a great deal of research is needed before it is possible to determine which form predominated first and why other forms turned out to be necessary, and whether the new forms connected in any way with the old.

  • 11 Sanhūrī, Maādir, 1:17-18.
  • 12 Alan Watson, Roman Law and Comparative Law (Athens, Georgia: University of Georgia Press, 1991), 63
  • 13 Watson, Roman Law, 123.

19In its simplest form, the “offer and acceptance” implies that at least two persons are involved in offering something and in accepting that same thing from one another. Moreover, even though the acceptance does not have to be instantaneous, the offer and acceptance need to formally take place in a location legally defined as the majlis, or since offer and acceptance, once completed by both parties, implies a de facto contract, the location is more accurately known as majlis al-‘aqd. Anything from sale, hire, debt, donation, or loan, could all be concluded under the general formula of offer and acceptance. The question then is, since the fiqh did possess a general formula, why didn’t the law of contracts proceed from such a general formula towards more abstraction and systematization, i.e., going from the more complex to a simple abstract formula, rather than the other way round? In fact, what we notice is that, historically speaking, the tendency was towards a proliferation of specific “nominated” contracts, or al-‘uqūd al-musammāh. This could be partly explained by the fact that the fiqh prohibited contractual forms that involved either the ribā or the gharar, or more broadly, the contrat aléatoire. Thus, the desire to reduce risk-taking, if not to eliminate it altogether, led to constraints imposed on all kinds of contracts whose object is not immediately available for exchange. That led to all kinds of contracts, such as sharecropping, debt, and istinā‘, to whom many stipulations (shurū) were attached to avoid uncertainty and an over-valorization of the yet-to-be-produced object of exchange. In short, an ideal contract would be one in which a ‘ayn is exchanged for another ‘ayn of “equal” value—meaning, without any “excessive” profit—and the contract itself, the offer and acceptance, would transfer the milk title of ownership from seller to buyer. In fact, it is well known that most contracts do not engender obligations as such (iltizām) since the offer and acceptance itself, i.e., the contract, transfers the property even before the buyer effectively receives it.11 In other words, the fiqh would like to guarantee the buyer an immediate right over the tangible object, aqq ‘aynī, or what might be called a “real right” rather than a “personal” one. This was in direct contrast to Roman law where “ownership was not transferred until the thing was actually handed over,”12 which renders a contract, generally speaking, “as an agreement between two or more persons whose main legal consequence is an obligation with an effect more personal than real.”13 One could say that the fiqh directly reversed that formula: the effect is more real than personal (“real” in the sense of ‘aynī), and the contract would not in principle create an obligation since the property title is immediately transferred to the buyer by virtue of the contract itself, even before the property had been effectively transferred. That’s why the debt poses all kinds of problems and could not be looked upon as one of those regular ‘ayn transfers. In fact, had it been so, the offer and acceptance would create a contract in which the debt becomes the property of the debtor with no obligation on his part to give it back. But what differentiates a debt from a regular ‘ayn exchange is that the former is a “personal right” because the borrower’s willingness and obligation to pay his debt are a matter of consciousness, dhimma.

20A final remark on this failure to abstract and rationalize: Islamic law failed to conceptualize money as such, and hence would not openly legalize monetary transactions. The exchange of money for money, which in principle should generate interest, would only make sense (1) if money is looked upon as a special commodity whose “utility” is precisely in creating a common denominator for exchange for all commodities; and (2) if the generated interest is in lieu of the services provided by money; hence money is not supposed to be a “neutral” medium. Because price for the use of money has never been properly conceptualized, legal-tender money, such as the bill of exchange, was a very late evolution in Islamic societies.

The economics of contracts

21A major source of confusion regarding contracts is whether a contract obligates the other party to perform. In other words, is there a anafī theory of obligations, one that would place a burden on the other party to perform, and one that assumes that between the contract and its performance a considerable amount of time might elapse? The question is even more pressing considering that a breach of contract, or a delay in performance, might trigger a court action for restitution, but with no compensation for the loss in profit that the plaintiff might have incurred. In other words, how significant is a theory of obligations without a solid tort law? One could, of course, argue that even if compensation does not come into the picture, a breach of contract, when backed by an obligation, implies restitution, hence the importance of the former. And, in conjunction with many cases in this study, regarding property rights, our main argument assumes that, considering major ambiguities in property law—on ownership, possession, and taking—property rights were fought for under the umbrella of contractual rights, so that the latter would guarantee the status of property rather than the other way round. In all this, the law of contract, in addition to contractual rights and settlements guaranteed by the courts and other legal instances, were the centerpiece of anafī practice—a role that was accentuated by weaknesses in both tort and property laws.

  • 14 Also referred to as mūjib-āt (s. mūjib).
  • 15 Abdul-Razzāq Sanhūrī, Maādir al-aqq fi-l-fiqh al-Islāmī, 6 vols.  in 2  (Beirut: Dār Iyā’ al-Tur (...)

22In his pioneering studies on contract, the Egyptian legalist ‘Abdul-Razzāq Sanhūrī noted that “rarely do we have in the Islamic fiqh obligations [iltizām‑āt]14 that are the outcome of a contract.”15 The reason being that upon the completion of a sale, the right over the tangible purchased object (aqq al-‘ayn) “consists of the power that the law gives to an individual specifically over that tangible object.” Thus, the obligation for the object (iltizām bi-l-‘ayn) consists in the seller delivering his product. However, since the obligation of the ownership of the object implies that, once the object has been delivered to the buyer, the obligation has been fulfilled, the fiqh does not acknowledge that a sale contract entitles an obligation per se since both the transfer of the object and its ownership are supposed to be instantaneous with the contract, hence there is no need for an obligation that assumes a time lag in performance. In other words, since Islamic contracts assume in their essence a simultaneous (or virtually simultaneous) performance, obligation becomes redundant. Moreover, since the seller’s liability is limited to restitution without damages in the case of breach of contract or the selling of a damaged product, tort law becomes redundant in that case too. Considering that a basic function of simultaneous contracts is to minimize risk, the general tendency in Islamic contracts is then to reduce the allocation of risk between buyer and seller, creditor and debtor, employer and employee, or landlord and tenant, to its lowest levels. In fact, a higher risk situation would imply higher information costs for the parties concerned: people would not be willing to assume more risks without the needed information that such risks are worth taking. But in societies where knowledge is personal, that is, knowledge of others and of the community is personally assumed, rather than through institutions, objective information, or printed materials, all information becomes collective (or kin-oriented), involving few or no secrets, so that long-term risky contracts with unforeseen events might strain the harmonious relations within a community based on a delicate equilibrium between clans and groups. Thus, with its emphasis on virtually simultaneous and equal contracts, while disfavoring long leases, interest loans, and excessive gains, or contracts where the sold object has no existence yet (ma‘dūm), anafism operates within a de facto minimization of risky and unforeseen events, while rendering obligation redundant.

  • 16 Sanhūrī, Maādir, 1:78.
  • 17 Chehata’s “méthode historique” (Théorie générale de l’obligation en droit musulman hanéfite, Paris, (...)
  • 18 Watson, Roman Law, 122.

23Rather than proceed from the concrete to the more general and abstract, the movement in the law of contract has been in the reverse order: a general form did exist—that of ījāb wa-qabūl—but instead of accepting any contract within the boundaries of that form, a plethora of contractual forms came into being, and, as far as the Ottoman period is concerned, even more forms flourished. Thus, based on Kasānī’s Badā’i‘, Sanhūrī already detects eighteen different “named contracts.”16 Is there a logic that organizes such contracts? Contemporary scholars such as Sanhūrī and Chehata, pressed by modern juristic needs, have attempted a more rational organization of those named contracts, which the fuqahā’ in their extreme pragmatism never did. But whatever the merits of their classifications, they fail in providing a logic for the historical appearance of particular contracts. Suppose we accept Kasānī’s eighteen named contracts as valid; we still need to know the historical order of their appearance, and the region in which they first arose prior to their generalization. In fact, contracts first erupt on a customary basis from the needs of a particular community, then receive a gradual acknowledgment from judges and lawyers, prior to their official categorization in the fiqh literature. An historical knowledge of contracts (and obligations, if any) proves necessary to assess the economic needs behind them.17 Moreover, an historical investigation would be helpful in explicating that need for more and more contracts rather than be limited to the general form of ījāb wa-qabūl. In a strange and intriguing way, the fiqh had a general contractual formula, then added to it all kinds of constraints and prohibitions, only to acknowledge a plethora of individualized contracts for a specific exchange. As Alan Watson rightly noted in his pioneering analysis of Roman law, we need “to explain why each contract arose when it did with the characteristics that it had.”18

  • 19 Chehata, Théorie, 58.

24My intention in this chapter is regrettably much more modest to the point of disappointment. I will begin first with the general contractual formula of offer and acceptance, which was acknowledged as such in the Majalla, and then move to earlier nineteenth-century fiqh texts and work out variations of that formula. The genuinely interesting part comes once we have the opportunity to work out even more variations from the contractual settlements that emerged from the sharī‘a courts, in particular the procedural fictions that paved the way for the many contracts that were not limited to simultaneous and equal exchange. In short, the law of contract evaded substantive change by permitting for a growing number of “unnamed contracts [‘uqūd ghayr musammāt].” During the second half of the nineteenth century, a time of intense judicial reforms, the anafī law of contract was in essence saved thanks to the effort of the Majalla. But as Chehata rightly noted, the Majalla’s attempt in systematizing the law was a big disappointment as it simply accumulated numbered definitions without much logical order.19 A non-systematic law of contract persevered therefore side by side with quasi-modern penal, commercial, and land codes.

25Obligation thus only manifests itself as a debt (dayn). The debt establishes a “personal right [aqq shakhī]” between creditor and debtor, hence the latter owes the former, as safekeeping (dhimma), the debt. Thus, the dhimma, being the responsibility of the debtor, becomes an obligation. In contrast, in a contract of sale, where both the commodity and its value have been simultaneously exchanged, obligation is no more an issue. There will be, however, an obligation on the part of the buyer in the case of deferred payment: the value of the commodity will then be a debt in his dhimma. The fiqh thus perceives that a debt entitles for an obligation, even though the exchange of a ‘ayn would not, while the western traditions would not distinguish between the two: a debt is a commodity like any other (so is money in general), and hence its exchange establishes an obligation. By contrast, in anafism the debt is another one of those “named contracts” that deviates from the general formula and for which the fuqahā’ have established a special set of rules. What is then the purpose of such a categorization? For one thing, such societies tend to minimize risk and unforeseen events, so a broad formula works well for simultaneous and equal contracts, but then, considering that the majority of contracts are not of this order, other specific contracts had to be designed for debts, waqfs, donations, sharecropping, or to even more specific contractual settlements.

  • 20 Muammad Rawwās Qala‘hjī, al-Mu‘āmalāt al-māliyya al-mu‘āira fī aw’ al-fiqh wa-l-sharī‘a (Beirut: (...)
  • 21 Sanhūrī, Maādir, 1:18.
  • 22 Watson, Roman Law, 123.

26Since the debt cannot be tied to a specific ‘ayn—that would have been possible only if money was among the category of a‘yān20—it was postulated as an obligation on behalf of the borrower, while the lender keeps a personal right until all the debt is fully covered. But even though the exchange of any commodity gives the buyer a right over that ‘ayn, Sanhūrī warns us that “the distinction between dayn and ‘ayn is different from the one between a personal right and a right over an object.”21 Thus, the personal right and its corresponding obligation is a legal link between creditor and debtor: the creditor enjoys a personal right over the debt he transmitted to the debtor, while the latter has an obligation to give it back in due time. By contrast, there is no “other side” in the right over a ‘ayn, and hence no obligation from another party: it is a right that a person exercises over something fully owned. Herein lies a basic difference with all western traditions deriving from Roman law in that they generally perceive “a contract as an agreement between two or more persons whose main legal consequence is an obligation with an effect personal rather than real.”22 One could safely assume that the fiqh would ideally envisage each contract as having a real effect over a ‘ayn rather than a personal one: any delay in the act of exchange meant more rules and counter-rules to the point that the fiqh favored “real contracts” over “virtual” ones.

27Some of our cases pose an intriguing “debt” problem (C 3-3, 5-1 & 6‑1 infra). At the beginning of those cases, once plaintiff and defendant have been introduced to the court through their representatives, the latter will then exchange claims regarding a “debt” that the defendant’s representative owes to the plaintiff. I have argued that such alleged “debts” were no more than procedural fictions that maintained a representative’s identity. In fact, since the purpose of the fictitious lawsuit was to transfer property—that is, a ‘ayn—between plaintiff and defendant, the debt implied an obligation between the two, while the transfer itself did not. In other words, the procedural fiction first created a fictitious obligation in the form of an alleged “debt,” prior to the property transfer as such.

  • 23 Sanhūrī, Maādir, 1:32.

28Which brings us, once more, to the law of property, and how contractual rights helped in establishing property rights. To begin with, in such societies, the ubiquitousness of possession (or occupation) favored those individuals that could prove that their occupational rights were legal, and from there, through court action, their ownership rights were validated. Thus, possession was a middle ground between ownership and tenancy. Since ownership entails full possession of the ‘ayn, the owner enjoys the right to use the ‘ayn, as well that anything that it produces, in addition to usufruct rights. Such a full right over the ‘ayn was, however, hard to maintain in societies where kin and land mixed together, and where the physical and legal costs of maintaining a milk property were prohibitive. Such difficulties provided a leeway for both possession and tenancy rights. In fact, a tenant has a right to benefit (aqq manfa‘a) from the leased property, “which is closer to a right in the ‘ayn than a personal right.”23 A personal right would have implied an obligation, but since only debts are endowed with such privilege, the tenant keeps a right to benefit from the ‘ayn, which has often been confusingly interpreted as tamlīk al-manfa‘a. Similarly, an inheritance is a manfa‘a, which the inheritor holds and takes possession of upon the death of the benefactor; while a waqf’s ‘ayn is not possessed by anyone, but whose manfa‘a goes to the beneficiaries. Such subtle distinctions are meant to avoid contracts with obligations, in a manner similar to debts. Thus, if a debt is linked to an obligation, it is because the fulfillment of a debt assumes—in the old notion of gift—a time lag, and that’s precisely what had to be avoided in the various categories of contract, all of which derive from the general offer and acceptance formula. It is as if the fuqahā’ did their best to avoid obligation altogether, reduced it to debt only, and then constructed a plethora of contracts, all of which were either based on the ownership, possession, exchange, or use of the manfa‘a and/or its ‘ayn.

29Offer and acceptance in the form of ījāb wa-qabūl is therefore to be looked upon as the most general formula of the law of contract. But general in what way, and how effective and trustworthy was it as a contractual form? As far as the role of the courts in enforcing contracts was concerned, the offer and acceptance was indeed the most common formula but only for acts of sale and tenancy, mostly in urban areas. Thus, within cities and their surrounding areas, the sale and lease of homes and shops was quite widespread, followed by the sale and lease of small lands (often referred to as “gardens”), all of which constituted the bulk of the sharī‘a courts transactions. Such transactions did fit well within the offer and acceptance formula simply because performance was expected to be immediate, meaning that there was no “debt” in anyone’s dhimma, hence no obligation of any kind. The offer and exchange formula was simple and direct enough so as not to include any procedural fiction, and its greatest advantage was that there was a promise beyond the immediacy of the exchange, while the presence of witnesses sealed the formality of the contract (C 3-2). But the sharī‘a courts only document contracts that have been finalized—i.e., whose offers have been accepted and thus concluded—and, more importantly, considering that the offer and acceptance could be orally concluded, only those who decided to formalize their promises in writing did so in court, even though the possibility of sealing a contract in writing outside the courts was also possible.

  • 24 Watson, Roman Law, 53: “It was an oral promise in which the person to whom the promise was to be ma (...)
  • 25 P.S. Atiyah, Essays on Contract (Oxford: Clarendon Press, 1986), 12: “It consists of an exchange of (...)

30Both Schacht and Sanhūrī argued that Roman law had no such general formula, even though scholars tend to agree that the stipulatio (or sponsio), which goes back to the fifth century b.c., was definitely an offer and acceptance oral contract.24 Similarly, in common law, “the bilateral executory agreement” holds a similar position, even though in the latter “When the contract is made, it binds each party to performance, or, in default, to a liability to pay damages in lieu. Prima facie these damages will represent the value of the innocent party’s disappointed expectations.”25 A major difference, however, is that the ījāb entails no obligation since the agreement is consummated with the contract itself, meaning that whatever had to be done should have been done with the conclusion of the contract, and with no obligation there is no liability to pay damages for non-performance. Hence, at common law, since an offer and acceptance contract implied futurity, obligation, liability, and the possibility for compensation, there was no need to create a distinct formula for, say, debt or donation. By contrast, anafism maintained a much more static formula, and, beginning with debt, other contracts had to be devised to address possibilities of delayed performance. Thus, court documents show a shift from a regular contract to debt when a delay in performance imposes itself: the plaintiff sues because the defendant owes him, in his dhimma, part of the merchandise he promised to deliver. In effect, the language of debt becomes effective whenever there is breach of contract, or a delay in delivery, or a promise to deliver, or a damaged commodity, or even when a harm has been caused willfully or negligently. The simultaneous nature of the ījāb, where the contract is consummated with the transfer of property, and hence obligation rests at this point, pushes disputants to other contractual formulas—debt in particular—to express their grievances. To understand the nature of contract in anafī practice, one must therefore see how a large number of contracts had to be accommodated outside the general formula, which, in our case here, implies going back and forth between legal doctrine, shurū and fatāwā texts, and court documents, in addition to the regional councils and sultanic ordinances, to trace the movement of contractual language. The picture that emerges is one of a proliferation of contracts and grammars: on the one hand stood the simple and efficient language of offer and acceptance; but, on the other, and for nearly as many contractual cases, disputants had to make their way through a diversified scheme of contracts, procedural fictions, and alleged debts and counter-debts.

31Even though we are dealing in this chapter with several of the contractual formulas each one on its own, I would like to begin with a case that fits well with my introductory statements as it brings together some of the concerns stated above: in the absence of well defined obligations, remedies, and liabilities in anafī practice, what were the alternatives open to plaintiffs whenever the defendant failed to deliver, or delivered a faulty product but refused to acknowledge it, or delayed performance ad infinitum? Such questions open the way towards the much broader issue of the economic efficiency of the law of contract: was the process of creating procedural fictions, as an addendum to contract law, hence an indication of the inefficiency of the latter? And did these fictions help in a readjustment of the system?

  • 26 Beirut sharī‘a courts, unnumbered register and document, 18 Dhu-l-ijja 1262 (7 December 1846).
  • 27 We will come across Emir Khalīl Shihāb, son of Bashīr II, a couple more times (Chapter5 infra).

32[C 3-1] In a case heard in Beirut in 1846,26 the plaintiff Emir Khalīl b. Bashīr Shihāb,27 was doubly represented: first by his wife Nasīm bt. Emir aydar Shihāb (the Shihābs married mostly among cousins, or else to Circassian slave women), who in turn had her own court representative, Ayyūb fiarābulsī, a Christian from Dayr al-Qamar (all Christians and Jews were specifically identified as such). It was therefore fiarābulsī himself who confronted the defendant Raphael Mishāqa, also from Dayr al-Qamar, regarding an alleged debt of ten piasters that the latter owed to the Shihābī Emir. The plaintiff claimed that the Emir had summoned his wife to receive the debt and litigate against the Dūmānī sons, while she in turn had delegated both requests to fiarābulsī. The defendant acknowledged the debt, but denied both representations: that of fiarābulsī to the Emir’s wife, and the latter to her husband. The court then went through a routine procedure in which the representative’s identity and right of representation was confirmed through witnessing. Since we will be discussing in the following chapters the procedural fiction of the debt and its purposes (C 5-1 & 6-1), I will only note here that its major raison d’être was a validation of the representative’s identity who will eventually “receive” something (a property, money, or an acknowledgment) from the other party, so that his right to represent and thus “receive” is ratified through a judge’s ruling and thus becomes irrevocable. By contrast, the representative who will “donate” will remain unchallenged, and his actions will be accepted without the process of validation. One way to understand such a discrepancy is to conceive of the “transfer” as a “debt” that the transferor owes to the transferee in his dhimma. Thus, considering that the most common ījāb wa-qabūl contract remained short of obligations, and hence of any sound principle of restitution and tort, disputants who claimed any wrongdoing, negligence, delays, or a breach of contract from the opposing party had to frame their case as a “debt” that the defendant owed them. In effect, only the debt-contract implies an obligation since the debtor owes the refund in his dhimma. In short, the debt-contract had become a procedural fiction for several contractual forms where either performance proved problematic, or something emerged later that could not have been contained within the clauses of the original contract. Those debts were thus in effect nothing but quasi-contracts of restitution resulting from pervious contractual settlements whose performance turned unsatisfactory. The contract is thus redrafted in the form of a court litigation—a “debt” that the defendant had not paid yet—so as to come to terms with the claims of the plaintiff. Such quasi-contracts could also acquire a form other than a pseudo-debt, in particular when fictitious allegations of property takings were at stake: in that respect, even though the final purpose was identical—to transfer property or validate property rights—the litigation might not have been framed as a debt-claim, but as a taking and its restitution to the plaintiff (C 5-2). The main point, however, is that all those procedural fictions, construed either around a pseudo-debt or a pseudo-taking, shared the same legal foundations, namely they constructed quasi-contracts that would hardly fit within the classical formula of offer and acceptance, and hence had to be framed as a fictitious litigation. The difficult question (which I will address later) then becomes in knowing whether quasi-contracts were meant to limit the economic damages of an inefficient law of contract, and thus assume that their main purpose was to implement more efficient policies, close in some respects to what we identify today as “free contracts,” or were simply minor adjustments that did not change much in an already arcane system.

33To come back to our case, it should be noted that once the representative’s right of representation (which was contractual), on the plaintiff’s side, had been validated by the judge, the case then takes a different direction typical of pseudo-debt litigations: the real purpose of the litigation is finally uncovered. The plot is simple enough so as not to generate much confusion. To begin with, the original defendant Mishāqa, having served his purpose of challenging the rights of the plaintiff’s representatives through a pseudo-debt, is no more in the game. Instead, several defendants have now become visible, all of them from the Dūmānī family, with some representing other family members. The plaintiff’s representative claimed that the defendants owed the Shihābī Emir 87,029 piasters, which was the sum due for the delivery of 197,029 piasters worth of silk, out of which only 110,000 were paid in cash. Even though all those sums were not referred to specifically as “debts,” the plaintiff’s language places them all into the defendants’ dhimma. In fact, considering that for a product such as silk it would be hard to expect a simultaneous or quasi-simultaneous performance (unless the silk was ready for delivery at the moment of the contract), the classical contractual language of offer and acceptance would have been too risky for both parties, considering that such a contract does not take into consideration any time lag and a future obligation to perform, or a damage compensation if performance fails. Thus, had the plaintiff faced a bad harvest and failed to deliver his product, he might have been sued for pecuniary loss; similarly, the defendants might have sued the Emir for a poor-quality silk, or for a bad delivery. In either case, the point here is that a product like silk did not have the “required” contractual form that would have permitted its exchange in the framework of a contract that would have distributed a fair risk-allocation to both sides. Instead, the contracting parties either have to accept the more modest offer and acceptance contract, and then sue in the case of non-performance, or construe their original contract as a debt, which entails a future obligation to perform, so that if the other party sues, the obligation is already stated orally or on paper. Either way, however, and unless the product was delivered on time and its payment was received accordingly, then both parties will have to resettle for a quasi-contract, which was precisely what the disputants did in this case.

34Even though the present document does not fully disclose the terms of the original agreement, the defendants, having acknowledged the original purchase and the remaining 87,029 piasters “still in their dhimma,” nevertheless claimed that “the initial sale was invalid [fāsid] and illegal [ghayr aī] in that the contract contained invalid sale stipulations [shurū fāsida li-l-bay‘], so that the total silk’s price is no more than 100,000 piasters. As a result, we would like to deliver back to [the Emir] part of the produce, in the form that he wishes, either in kind or cash. We have evidence that shows that in the original contract he stipulated on us to proceed on credit [nasī’at-an], so that he would deliver it to us, and whatever we consume it would be [a debt] on our behalf [fi-l-dhimam ‘ala-ynā], but he would pay for it [as advance credit]. Based on that, the Emir still owes us [yabqa lanā araf al-amīr] 10,000 piasters.” Before we proceed any further, let us first clarify the middle part of the document. To begin with, having first acknowledged the preliminary conditions of the sale as stated by the plaintiff, the defendants then limited “the overall value of the silk to no more than 100,000 piasters.” So why the discrepancy between the initial figure of 197,029 piasters and the last acknowledgment of 100,000 piasters? And how could the same party come with two different value sets? If we follow the defendants along their own line of arguments, a further claim was made regarding a stipulation in the contract, allegedly imposed by the Emir, and enforcing a sale on credit (bay‘ al-nasī’at): every quantity of silk consumed by the defendants would become a debt to the Emir. Thus, by claiming that the Emir still owes them 10,000 piasters, the defendants probably meant that he delivered for only 100,000 piasters, while the rest was still waiting for delivery. Moreover, the assumption is that the 100,000 piasters of silk were delivered on credit, which the defendants were presumably able to pay at some unspecified point, and then, considering that both parties acknowledged an overall payment of 110,000 piasters, then the defendants must have paid an extra 10,000 piasters in lieu of which they received no silk. In other words, and ironically one should say, even though the contract allegedly stipulated a deferred payment clause, the plaintiffs paid 10,000 piasters in advance.

  • 28 Schacht, Introduction, 153.

35We still need to account for the remaining 87,029 piasters, also acknowledged by both parties. Even by the time the document reaches its end, that sum remains unaccounted for, and beyond what has already been claimed by all disputants, an aura of secrecy surrounds that mysterious amount. It should be noted that the nasī’a type of contract was only a variation of the more common salam, and that the former implied, as Schacht described it, that “A (the creditor) sells to B (the debtor) some object for the sum of capital and interest, payable at some future date, and immediately afterwards buys the same object back for the capital payable at once. This amounts to an unsecured loan; on another form of ‘īna which provides a security for the loan.”28 In other words, the whole purpose of the transaction would have been to give a loan of 110,000 piasters to the Dūmānīs, with an 80 percent interest amounting to 87,029 piasters, for a total of 197,029 piasters. The loan itself, whose value was 110,000 piasters, was delivered first in kind as silk and then in cash for every quantity that the Dūmānīs consumed individually. (We’re assuming that the silk was in effect delivered at some unspecified point, and that the Dūmānīs then received their cash-loan of 110,000 piasters gradually rather than in toto; the latter possibility would imply that the whole silk détour was fictitious—a procedure to secure the full loan—while delivery assumes that the Dūmānīs received their cash-loan only gradually, either by selling the silk, or if they consumed it themselves, the Emir would pay cash for it.) But apparently the Emir limited his cash to only 100,000 piasters, hence the defendants’ allegation that the silk was not worth more than that amount: they probably did receive 110,000 piasters worth of silk, but the Emir was allegedly 10,000 piasters short in cash. But, in any case, the reimbursement of the 110,000 piasters seems to have been completed, and what the plaintiff is now requesting is the interest per se amounting to 87,029 piasters.

  • 29 Schacht, Introduction, 121: “The distinction between fāsid and il, which is not recognized to th (...)
  • 30 Muammad Rawwās Qala‘hjī, Mu‘jam lughat al-fuqahā’ (Beirut: Dār al-Nafā’is, 1996), 314.

36Because such contractual loans were only a short distance from ribā, the document totally avoids the fact that the case was nothing but lending money with interest. In fact, not only the 87,029 piasters-as-interest remains uncertain and the text’s biggest secret, but even the date and modalities of the original contract remain unknown, except for the sketchy details provided by the defendants on the nasī’a loan, and to which they refer very vaguely as a “debt.” Moreover, and still from the defendants’ perspective, the original contract was a bay‘ fāsid, whose translation as “voidable” only partially points to its illegal nature.29 The anafī notion of fasād differs between the ‘ibādāt and mu‘āmalāt (while they tend to be identical in the other schools): in the former, each fāsid is also il, or invalid, while in transactions, fasād is a practice legal in its essence (al) but not necessarily in the circumstances and stipulations of the transaction (waf); by contrast, il is a practice illegal in both its essence and stipulations.30 In other words, the nature of the transaction—a credit loan—is legal, but not the modalities of the contract per se (e.g., a high interest rate that would classify the contract as ribā). So, a “voidable” contract that is fāsid, being in essence legal, could have its illegal modalities revised by a court so as to make them legal. And that was precisely what the court was doing here: construing the stipulations of a voidable contract.

Table ‎3-1: Arguments in the silk-loan to the Dūmānīs (C 3-1)

In the original contract, for which no date and no document have been provided, and which has been acknowledged by both parties, the Emir sells silk for the Dūmānīs for a total of 197,029 piasters.

197,029 piasters.

Amount paid by the defendants and acknowledged by the plaintiff.

110,000 piasters.

Amount claimed by the plaintiff and acknowledged by the defendants.

87,029 piasters.

Defendants claimed that the plaintiff imposed on them a voidable contract, or a “sale on credit.” They thus received 100,000 piasters worth of silk, which they’ve fully refunded, and claim that the Emir owes them 10,000 piasters more.

100,000 piasters sale-on-credit.

Defendants claimed that since the 110,000 piasters worth of silk were supposed to be covered fully in cash by the Emir—the essence of the sale-on-credit contract—he nevertheless fell short by 10,000 piasters.

10,000 piasters paid to the Emir, but the latter failed to deliver the required quantity of silk.

Defendants thus received an equivalent of cash of 100,000 piasters, which is the “real” value of the silk, save the 80 percent interest. The assumption is—and that was never clearly stated as such in the document—the Dūmānīs fully refunded their “debt” of 110,000 piasters which they owed to the Emir, and which constitutes the “real” value of the silk.


Apparently—even though the document remains silent on the issue—the defendants stopped payment for the remaining 87,029 piasters—representing the 80 percent interest—either because the Emir failed to meet his initial promises, or because they were short of cash themselves, hence the litigation.

87,029 piasters unaccounted for.

Commentary: The difficulty in reading such cases stems from the fact that the original “debt” was concealed as a silk-loan, and hence the interest upon payment of the full amount remains concealed too. The only revelation came from the defendants when they acknowledged a nasī’a form of contractual settlement (and hence was “voidable” from their perspective), which for our purposes serves as the key through which the case ought to be read. The conclusion points to a re-settlement is which the “interest” was renegotiated in favor of the defendants.

37But, besides the original acknowledgment (iqrār) of the 197,029 piasters, which constituted the totality of the transaction, and the 87,029 piasters that were still due, no evidence was ever furnished as to the modalities of the original contract, or the specific clauses of the nasī’a loan, to the point that the whole interest-loan contract, which was the case’s dirty little secret, was taboo. But the plaintiff’s representative, having denied all his opponents’ allegations regarding the credit-loan contract and its voidableness, requested evidence from the defendants on the basis that “personal evidence takes precedence over genuine evidence [bayyinat al-fard muqaddama ‘ala bayyinat al-iḥḥa].” I’m uncertain as to the difference between the two types of evidence and what each one individually means, but my guess is that evidence brought through witnessing is more conclusive than one that attempts to prove the soundness of a contract by other means.

38In any case, there will be no evidence, and, instead, the disputants will opt for a peaceful settlement: “the dispute has taken a long enough time, and attempts were made to reconcile them, so the plaintiff’s representative has settled [ālaa] with his opponents for the sum of 30,000 piasters, a proposal accepted by the defendants.” The modalities of the payment are then explicated in the last section of the document. In reality, it will not be a direct cash payment, but a “sale” of few village lands with mulberry plantations (which, in turn, were subject to a prior purchase by the defendants on April 1846). It remains unclear, however, whether the “sale” simply meant “giving” an equivalent of landed properties to the Emir, or whether it implied a “real” sale, meaning that the Emir effectively paid for the properties. But the amount of money, referred to as a “settlement compensation [badal ul],” was mostly covered through the landed properties, with the exception of a tiny fraction of the amount—2,360 silver coins—which the plaintiff’s representative acknowledged receiving from the defendants. It does seem then that the Emir was given the properties as trade-off, and that the minimal cash sum, which he also received, was probably added to clearly indicate that the “settlement compensation” went from defendants to plaintiff.

39To recapitulate, and assuming that our interpretation is correct, there was an undisclosed credit-loan contract that the defendants accepted on the basis of an 80 percent interest. But either because the plaintiff failed to deliver the complete cash-sum, or due to the defendants’ inability to fulfill their promise, the two parties decided to settle peacefully in court for less than the amount that was originally due as “debt,” which implied a de facto reduction of the interest to 27 or 30 percent (depending on whether the value of the silk was 100,000 or 110,000 piasters).

40We’re in the 1840s, an intensive reform period, and yet there was no indication that the credit-loan system was getting any better. The failure to rationalize the debt system is one such poorly studied phenomenon in the economic history of Greater Syria, and even though, as we shall see later, attempts were made to impose a common interest-rate plan (see Chapter 10 infra). Systematization failed for a number of reasons, a mixture of socio‑economic and legal factors, and which regrettably we’ll address only in respect to their legal relevance. To begin with, in the absence of banking institutions, loans-with-interest were only granted by individuals, and, as the above case shows, such loans were contracted from individual to individual and court disputes were litigated on that basis. Traditionally moneylenders were wealthy Jews from the city of Damascus, who financed some of the well-to-do peasantry in the surrounding countryside, but soon (the date remains uncertain) they were to be joined by Muslims from the a‘yān class. In Mount Lebanon loans were mostly secured by the upperclass families, who, unlike their counterparts in Greater Syria, had much closer links with their peasantry, and hence granted them loans with interest. Because such practices were often associated with ribā, in particular when the interest was “over the limit” (which was rarely, if at all, ever determined), their related court disputes were rarely formulated as loans, or debts fulfilled upon payment of the capital and interest, but often as contracts that entailed the selling of a commodity in lieu of a loan, and where the “interest” was concealed in the commodity’s “price.” As our case here shows, it is even uncertain whether the commodity was effectively delivered, and such cases were typically constructed so as to wrestle with the taboo issue of an interest imposed upon a loan.

  • 31 See Chapter1 supra.
  • 32 Bay‘atān fī bay‘a: a group of devices for evading the prohibition of interest.

41Thus, while attempting to avoid all kinds of legal and moral limitations, loans were gradually construed on the basis of an early credit for a yet to be delivered commodity. By far, the most common type was the salam, a contract for delivery with prepayment, while the istinā‘, which entailed an advance financing of the manufacturer, was only a variation to the more common salam. Both, however, were de facto approved by the fiqh—as customary practices whose annulment would have caused more damage than justice.31 It was therefore that de facto self-imposed legalization of many customary practices could shed some light on the nature of the language of the sharī‘a courts whenever a loan was at the root of the dispute. To begin with, if the loan with interest remained the non-told secret, the contract had to be formulated as a commodity sale (or a “double sale”32) whose “price” the buyer was unable to reimburse either partially or totally; the “price” in turn was above the commodity’s street price as it covered the interest for the loan. The contract was thus formulated as a debt from buyer to seller, and because of its inherently “incorrect” but not illegal nature, it could be reformulated in court, whenever buyer or seller decided to sue, and its modalities reworked out. In fact, such contracts could be revised in court as “defective,” and, considering that anafism carefully distinguished the il from the fāsid, and established a separation between the al and waf, the modalities of the contract could thus legally be reformulated, assuming, of course, that one of the contracting parties would sue. The Dūmānī case, ending as it did with a peaceful settlement involving property transfers in lieu of a cash sum, and which in turn represented the actual interest for a (pseudo?) silk-loan, is an example of a loan contract that went awry, and whose stipulations had to be reformulated in court. Thus, even though the nasī’a contracts were rare to appear in court, they nevertheless were only a variation from both salam and istinā’ in that they all skillfully attempted to bypass the limitations of the offer and acceptance contract, and all attempted to transfer capital that was needed for investment. In effect, and considering other contractual settlements we are discussing in this chapter, there are several indications of accumulated capital in the hands of merchants, landowners, professional moneylenders, and a‘yān families, badly in need of a viable source of investment. The accumulation of capital had reached a level for which new outlets were needed, and considering the importance of agriculture, both the acquisition of lands and loans to the peasantry were viable alternatives to dormant capitals. Both, however, represented real challenges in that neither the acquisition of lands nor credit loans were openly instituted practices that could have been legally protected. Instead, as many of our cases show, such practices had to go through a tortuous legal path, one where the acquisition of property had first to challenge an illegal taking, and where a credit loan had to go through a pseudo-purchase of a commodity, and where debts became procedural fictions in order to create obligations. Such détours, however, would have been superfluous had the legal system run efficiently in the first place, but whether they succeeded in creating an efficiency of their own is a different story altogether. In any case, the wave of westernization that struck the judiciary in the second half of the nineteenth century is definitely not a positive sign that things were running smoothly in the courts. anafī practice, with all the patches and détours it assimilated over the centuries, became inefficient in a period where change acquired a more rapid pace, while the pro-western set of codes were only a safeguard for a better accumulation and circulation of capital. Thus, in this respect, the Commercial Code of 1850 had already anticipated the movement in the forthcoming decades that money lending will assume.

What an economics of contracts implies

42What should be the starting point, from the point of view of anafism, of the classical categories of “political economy”—understood as the discursive principles that regulate “economic” life—even though in most societies the “economic” does not differentiate itself from the political, social, and religious: in other words, is it possible to analyze property, contract, tort, and crime, in association with a set of “economic” values? Interestingly, in some of the most influential works in the history of Western political economy, the evolution of the Archimedean “starting point” is quite revealing. Adam Smith devotes the first chapter of The Wealth of Nations to the “division of labor”: labor becomes the primary and most essential category in eighteenth-century political economic thought—not only the source of all wealth, but more importantly, the source of all value; in other words, a commodity is valued in terms of the quantum of labor invested in it. Thus, commodities, even though of different substances and uses, are reduced to one common denominator: labor. The important point here is that any thing could become a commodity as long as it is valued in terms of labor: for example, gold and silver—and money in general—are also commodities, that is, they are not set apart from other substances because they are the “things” through which most commodities are effectively valued. In post-medieval economies therefore, the fiction of labor as the value of all commodities will help in according an “atomic value” to commodities that were otherwise perceived substantially different for religious, political, or “economic” purposes. Indeed, that was the phase of the secularization—or rationalization—of political economy, namely, that a rationale exists behind the value of each commodity. Thus, the world of Adam Smith presupposes freely competing, autonomous, and non-political individuals, to which the state as a political entity gives the security they need to pursue their economic activities.

  • 33 David Ricardo, Principles (New York: Everyman’s Library, 1973), 11.

43Even though Adam Smith had already laid down the three basic categories of political economy—labor, value (price), and commodities—it was David Ricardo, in his Principles of Political Economy and Taxation, that placed value as the centerpiece of the system. Thus, his first chapter distinguishes between “value in use” and “value in exchange,” a distinction already present in the Wealth of Nations. Ricardo also holds to the assumption that the exchange value of commodities is based on the amount of labor invested in them, plus the profit. But the novelty here is that by placing value prior to anything else, Ricardo wanted to point to the difficulty in knowing how this “value” is determined. Contrary to his predecessor who looked upon corn or labor as more reliable standards than “variable mediums” such as gold and silver, Ricardo was suspicious of “invariable standards,” corn and labor in particular, since they too are relative to the value of other commodities: “labour, as being the foundation of all value, and the relative quantity of labour as almost exclusively determining the relative value of commodities.”33

44Marx entitled his first chapter of Kapital, “Commodities.” Commodities have a use and exchange values, and the latter is determined by the quantum of labor invested in the production of a commodity. Thus far, Marx is on the same footing as his two illustrious predecessors; but he will quickly challenge them as to what the “value” of a commodity really includes: the “profit” is nothing but a “surplus value” equal to an amount of labor performed by the laborer but was not paid to him. Marx will thus look at “profit” not as something added to the value of a commodity, but indeed as an inherent part of what made it possible. Marx will coin the term “fetishism of commodities” in a widely celebrated chapter of Kapital, thus pointing out that political economy could not possibly be purified of its other “non-economic” elements, such as the anthropological, metaphysical, cultural, and political. Marx’s work will remain divided between a search for a mathematical logic to the most essential economic categories (surplus value, profit, and rent), on the one hand, and the political, ideological, and social implications of the system, on the other.

  • 34 See François Rachline, Que l’argent soit. Capitalisme et alchimie de l’avenir (Paris: Calmann-Lévy, (...)
  • 35 To Adam Smith the opening of the market to selfish individuals who seek to promote their own self-i (...)

45Today, in our post-Keynesian world, the belief that labor is the basis for evaluating the “value” of commodities has been shattered. Money, the value of all things, has become a reference on its own, different from all commodities: it is neither a signifier for labor specifically, nor value-as-labor; it is simply what all commodities and things to be exchanged point to.34 Property is anything that could be exchangeable, regardless of whether it is material or immaterial. Prices are explained by the relative scarcities of goods and services, including those of labor and capital, which in turn reflect the ratios of the marginal utilities—that is, the expected individual welfares—they yield to the consumer.35

46In Islamic societies, since “political economy” never materialized as an autonomous discourse, the “economic” notions were to remain mostly embedded within a juridical discourse. The jurists were indeed the ones, based on the deontological nature of the enterprise of the fiqh, to create normative rules for things (commodities) to be (legally) exchanged; to attempt a definition of “value”; and create a separation between commodities that could be legally exchanged, and those whose exchange would be illegal (even though their possession and inheritance might not necessarily be illegal). Systematic treatises, outside the fiqh, on such matters were rare, and it is even harder to find a text that would be specifically devoted to a locality and time period that would show how notions such as commodity, labor, value (price), and profit have evolved. Thus, for example, Qāsimī’s two-volume work on the status of the crafts in nineteenth-century Damascus, Qāmūs al-inā‘āt al-Shāmiyya, is a direct first-hand description of the status of labor and crafts in the city. But when it comes to understanding such “notions” as “labor” or “craft” or “corporation,” Qāsimī’s text borrows heavily from Ibn Khaldūn’s Muqaddima, and even though Qāsimī claims to have only attempted a “summary (talkhī)” of the well-known fourteenth-century text, his introduction to the Qāmūs is for the most part identical—with long passages quoted verbatim—from Ibn Khaldūn’s chapter on crafts. Due to the time gap, the Qāmūs poses similar reading problems to those we have encountered in the fiqh texts: anachronism—that is, the difficulty in relating a particular discourse to a specific time period.

  • 36 Muammad Sa‘īd al-Qāsimī, Qāmūs al-inā‘āt al-Shāmiyya (Paris: Mouton & Co., 1960), 1:7. A Similar (...)
  • 37 Qāsimī, Qāmūs, 1:16.

47Qāsimī’s discourse—and indirectly that of Ibn Khaldūn upon which it heavily borrows—on livelihood, subsistence, gain, and profit, is based on the idea of the “original” human being confronting the forces of nature in order to assure his daily subsistence: “You should know that man lacks by his own nature [bi-l-ab‘] a way to assure his livelihood when moving from infancy to adulthood. Once he matures, and overcomes the weak phase in himself, he seeks the acquisition of revenues [iqtinā’ al-makāsib; s. kasb: gain, profit, revenue]. Then this acquired thing [al-muqtana], once it turns out to be useful for man, and bears its fruits on his spending, interests, and needs, is then called livelihood [rizq: subsistence, means of living, wealth].”36 He then adds, between a adīth quoted from a Qur’anic verse, that “gain [kasb] implies attempting to acquire things, and its purpose is collecting. Labor [‘amal] turns out therefore a necessity for the sake of subsistence [rizq].” The search for subsistence is known as ma‘āsh, which in itself is another term for rizq, that is, livelihood. Obviously, there are several means for livelihood. The most basic are the ones connected to man’s most basic needs: food and shelter. Qāsimī describes in a summary way those basic needs (acquisition of animals and plants) before moving to the subject of his book: crafts as a way to make profit (al-kasb mina-al-anā’i‘). The two chapters on “gain (kasb)” abound in Qur’anic and adīth references, but there is little to explain what “gain” and “profit” are in the context of a productive cycle. What Qāsimī does, however, is to conclude with some moral precepts: that commerce (tijāra) is dispraised (madhmūm) whenever it becomes a tool to “keep an excess of one’s needs,” and that it is better to die without being a merchant or a traitor.37 Moreover, the pursuance of gain could be left altogether by those involved in sufism, or in discovering the “inner self (in),” or those involved in the “science of the external (‘ilm al-āhir),” such as the muftī or the interpreters of the scriptures; and finally for the sultan and the judge.

48Qāsimī’s discourse looked upon basic “economic” categories, such as livelihood, subsistence, wealth, gain, profit, and trade, as part of a natural cycle defined primarily in terms of “basic human needs.” Such “needs,” in turn, are delimited by the scriptures: thus, the right of subsistence (that is, finding and acquiring the appropriate things in nature: animals, plants, etc.) and the right of profit are both scripturally protected. “Gain,” defined as the accumulation of wealth (tharwa), becomes a natural process that in itself does not pose a problem—at least until no “excess (ziyāda)” is visible: but even in this case, the excess is a moral issue, and it is left to a person’s own self-esteem to determine what to keep of his accumulated wealth and what to give as charity. In short, this type of discourse—which is nothing specific to the nineteenth century or the Ottoman period for that matter—does not articulate itself around a socially created cycle of production. Instead, by naturalizing—and legitimizing through the scriptures—every aspect of the process, the main productive elements fail to come together in a historically coherent whole. Interestingly, the discourse of the fiqh, even though much more provocative and detailed when it comes to the basic categories of “livelihood,” is as abstract and arcane as Qāsimī’s. Thus, despite its more concrete legal side, the fiqh literature also fails to connect its discourse(s) with a tangible productive cycle.

49In Islamic societies, the basic categories of “political economy” were integrated within the deontological normative structures of the fiqh literature. This is because law, in the strict sense of the term, is never differentiated from the other spheres of existence, and the domain of sharī‘a law ultimately was vast enough to include a broad set of opinions from the ‘ibādāt to the mu‘āmalāt and punishments. But because “political economy” did not differentiate into an autonomous discourse of its own, one wonders whether it is possible to attribute anything “economic” to the fiqh discourse in general. First, such a discourse neither structures itself on notions of production nor labor for that matter (and hence does not explicitly relate to notions of wages and profit either). Second, because a specific reference to any socio-economic reality is by definition absent, the “unity” of the discourse is based on the coherence of the tradition (see Chapters 1 & 2 supra). This makes it difficult to pin down the fiqh’s discourse in relation to a “nineteenth-century” socio-economic life. Indeed, the whole purpose of fictional discourses is their ahistorical and moral character. This suggests that there was no legal system to underpin an invisible-hand “economic” sphere; rather, the legal system attempted to construe moral and religious values for the “economic” with the implicit assumption that such values were by and large followed. But the nineteenth century was the period—in particular during the Tanīmāt—in which sharī‘a law lost a great deal of its jurisdiction, to the point that by the end of the century the sharī‘a courts were left to adjudicate only matters of personal status and the like. The implication here is that sharī‘a law was not concerned in constructing a discourse aimed towards a “socio-economic sphere.” Such a step would have required a complete epistemological and cognitive shift that would have made no sense within the épistémè of the fiqh.

50While assuming a de facto “coherence” to the “socio-economic” lifeworld, contemporary Ottoman historiography created a discourse, based on the “factual” elements brought up from documents, which construes the societal from elements that lie “outside” those same documents. Thus, historians of the empire created a “socio-economic reality” (tainted with a blend of political economy) without even asking whether a “socio-economic” discursive level did exist in the first place. But what might very inadequately be labeled a “socio-economic discourse” was not a sphere (or discipline) on its own (as was the case with Adam Smith and David Ricardo). Instead, the domain known as “pecuniary transactions (mu‘āmalāt)” was one of the four domains that constituted the bulk of the fiqh literature, together with the “religious rituals (‘ibādāt),” marriage and divorce (personal status), and punishments (udūd). The question should therefore be posed as to whether it is legitimate to construct a historiographical enquiry that bypasses the discursive complexities of the jurists (and others as well) and naïvely assumes that the economic is a level with its own rules of coherence. A critical Ottoman historiography should abandon pure “economic relations” and instead concentrate principally on culture, discourse, text, and ideology that construct (shape, structure) “economic relations,” among others. But even within this new approach, the term “economic” should be viewed very cautiously: 1) what we shall refer to very vaguely, and for lack of a better terminology, as “economic relations”—that is, anything related to such things as commodities, currencies, exchange, value and price—finds its discursive normative values primarily within the domain of the fiqh, and as part of a discourse that is neither constructed around the notions of production nor capital accumulation; 2) the domain of the fiqh specific to “pecuniary transactions (mu‘āmalāt)” needs to be constructed in its totality, that is, primarily as a religious, moral, and legal discourse. As to “economic relations,” as textualized within the domain of the fiqh, they should find their operative value within the broader normative rules of the ‘ibādāt.

51Such a method of analysis should even concentrate on the most obvious: for example, contracts of sale, in addition to tenancy contracts, made up on their own, in Greater Syria, at least half of all the recorded cases in a sharī‘a court. Yet, despite their importance, they either have been neglected as contracts, or worse, have been quantified and placed in abstract statistical series for the sole purpose of creating a “social history” out of them. The same applies to other commonly identified sharī‘a courts documents: successions (tarikāt) and sharecropping contracts (such as the musāqāt, muzāra‘a, mashadd maskeh), among others.

A typical contract of sale

52Contracts of sale and tenancy were the most numerous, and usually the shortest due to their simple and straightforward form. Only a few lines were needed to describe that a transaction took place between the two identified parties, the nature of the transaction (buying, selling, leasing, etc.), the location of the object of the contract, the sum to be paid, specific conditions (if any), and finally, the date and witnesses, if any. Nothing is more simple in appearance than contracts of this kind; yet, their simplicity hides complex notions of contract, offer and demand, property, price and value.

  • 38 Damascus 251/46/77/19 Muarram 1218 (May 11, 1803).

[C 3-2] The woman, Ruqiyya bt. Qāsim al-ajjār, purchased [a home] with her own money from her husband, usayn b. Muammad al-Jawaharī. He willingly and consciously sold her, without duress, what was in his legal possession, based on the document in his possession, drafted in the court’s majlis by āfi ‘Abdullah Efendi, dated end of Jumāda II 1215 [October 1800], all the house located inside Damascus in maallat al-Jūrah, zuqāq al-Mīah. It contains habitable spaces [masākin], proceeds [manāfi‘], and legal rights [uqūq shar‘iyya]. It is surrounded south by the road and the gate [of the house], east by the house of Munajjid, and north and west by waqf al-Jazmā and the wall of Damascus. [The transaction] was legally completed, with full knowledge of the two parties, in terms of a legal buying and selling, that included an offer and an acceptance [ījāb wa-qabūl], a taking and turning over [tasallum wa-l-taslīm], and this, after a professional evaluation in order to avoid any injustice, for a sum of 300 piasters in current silver that the seller legally received from the buyer [...]. [The transaction] was certified [to the judge] by the testimonies of witnesses whose statements were accepted as legal. [...]38

53Nothing was simpler than bona fide contracts of sale, and their corollary, tenancy contracts, both of which constituted the bulk of the sharī‘a courts records. Their repetitive and purely ritualistic nature does suggest that the process of property exchange, once the stage of offer and acceptance was completed, was straightforward. What needed to be legally performed was to transcribe in writing—even though an orally completed transaction would have been as valid—in the presence of a judge, what had been agreed upon orally. The exchange in the above case might have well been a simple title transfer, where the declared amount of 300 piasters only played a nominal role. Thus, in spite of the fact that the husband had the possibility of transferring his property to his wife as a “donation” (hiba), a regular act of sale was (and still is) the preferred way to go simply because the transferor would be unable to revoke that easily.

54But what is at stake here is the status of all those urban and rural properties, and the way they were acquired, possessed, transmitted, and inherited. First, the status of property in general remained ambiguous under the Ottomans. Not only was the borderline between state-owned property (mīrī) and milk confusing, but waqfs, by their sheer bulk, added to the uncertainty. Second, because the great majority of rural properties was either mīrī or waqf, ownership of the proceeds (aqq tamlīk al-manfa‘a), in its numerous forms, became a common practice. This has rendered the notion of “private property” even more complex. Third, some sharī‘a court records that manifest an apparent litigation turn out upon closer examination fictitious cases where large property transfers took place between members of the same family (usually along generational lines). Some of those cases might have involved a change of status: from mīrī to milk, or waqf to milk, or mīrī to waqf. The point here is that it is largely debatable whether private property became—even in a limited way—freely exchangeable: the case above, picked up at random among thousands of others, represents a transaction between husband and wife in which the husband’s owned property was purchased less than three years prior to the new transaction. This might suggest a relocation of the family property rather than a bona fide sale.

55Finally, the simplicity of the written document hides how much notions such as offer and acceptance and price evaluation (as qīma and thaman) have preoccupied jurists for centuries and tied down such “economic” notions to a legal framework whose main purpose was not necessarily economic. Furthermore, besides the fact that “price evaluation” does not in itself constitute the telos of a transaction, offer and affirmation are, according to the fiqh manuals (a principle that the Majalla clearly reiterates), oral strategies of bargaining that the written document cannot possibly bring forth to light. A careful examination of the fiqh texts, therefore, could shed some light on the epistemological and cognitive aspects of the court documents-as-texts, which methodologically should imply the contextualization of documents by bringing forth a level of economic anthropology to all such texts.

A general theory of contracts?

  • 39 See Chapter4 infra.
  • 40 Chafik Chehata, Théorie générale de l’obligation en droit musulman hanéfite (Paris: Éditions Sirey, (...)
  • 41 Chehata, Théorie, 43.
  • 42 Chehata, Théorie, 44.
  • 43 Another attempt in this direction, even though less systematic, is to be found in, ubī Mamaānī, (...)
  • 44 Sanhūrī, even though had a different juridical approach than Chehata, shared similar views in his M (...)

56The material on value and price, commodities, money, and labor is found primarily in the various “Kitāb al-Buyū‘” (Book of Selling) of the fiqh treatises. The location, however, of the Buyū‘ chapters is not that obvious. In Ibn ‘Ābidīn’s Radd, the “Kitāb al-Buyū‘” is situated in the fourth volume of the treatise (that is, right in the middle), after the sections (bābs) on taxation (the ‘ushr and kharāj, which we will discuss later),39 and after such chapters as punishment, waqf, and association (sharika). Even though, logically speaking, the Buyū‘ chapter should introduce all the mu‘āmalāt themes as a whole (including the ujra), it remains uncertain why such a more logical alternative has never been opted. But the real problem, however, might be less organizational than conceptual. In fact, anafī treatises typically lack a general chapter on “contracts and obligations (‘uqūd wa-l-mūjibāt),” and, instead, the material on contracts remains scattered between the buyū‘ and ijāra sections, in addition to related themes on legal or illegal gain, profit, and partnerships such as the murābaa and the muāraba. In effect, anafī treatises typically avoid a general concept of “contract” and make up for such a shortcoming by multiplying “examples” and “cases.” With that failure in mind, Chafik Chehata was among the first to bring forth a “théorie générale de l’obligation” that bypasses and explains the never-ending “examples” and “cases” of the fiqh manuals.40 Chehata claims to have followed an “objective method” based on “the case”: considering that Islamic law is “essentially empirical,” that is, based on “cases” rather than “concepts,” one must “come to terms with the solutions that Islamic law gives to cases (il faut s’attaquer aux solutions qu’il donne aux cas).”41 This means, above all, that one must “eliminate all theoretical explications provided by the authors—even the classics.” In fact, the jurists’ explanations to a case, maintains Chehata, are always provided on a de facto basis (après coup). Each case is usually followed by an explanation—or an attempt to legitimize a given opinion—and explanations can even add up for a single case; but, in the absence of a “general theory,” explanations do no more than add up exactly like the cases they are supposed to explain and legitimize.42 Chehata thus embarks into an ambitious enterprise, one that, no more no less, will construct a general theory of contracts and obligations from a modern perspective, on the one hand, but based on an historical reading of the classical texts on the other.43 Chehata thus places himself in the position of a modern jurist, one who is under pressure to create a modern “code of contracts and obligations” that is based, for the most part, on the classics. In doing so, he avoids modernist perspectives that simply copy and translate codes from western sources—beginning with the 1804 French Code civil—and, instead, situates his enterprise within a more logical and conceptual rewriting of the Islamic fiqh from a modern perspective.44 In short, Chehata would have liked to do better precisely where the classical jurists “failed”—in providing concepts to their cases.

57It is not my intention here to assess Chehata’s overall method. But, needless to say, it does not fall within the credible “historical” approach attempted in this study. To begin with, I am more interested—at least at a preliminary level of reading and interpreting—in the internal logic of texts—how they state things rather than simply what they state—their articulation of ideas and concepts, their errors, silences and tensions, rather than creating any modern rules from them (even though such an enterprise is beneficial). Second, a purely modernist perspective fails to see precisely why the classical fiqh texts “failed” to be more “conceptual” and erred on a case-by-case basis. Third, a major weakness in Chehata’s approach is its inability to construct a viable history of contractual forms, one that would detect which contracts emerged first, and which ones were deduced from them.

  • 45 Chehata, Théorie, 58.

58Interestingly, it is only in the Majalla, which is in itself an elaborate rationalization of anafī jurisprudence, and the first and last one of its kind, that the notion of bay‘ finally finds its logical place (obviously, the Majalla forgoes the ‘ibādāt altogether). In fact, the bay‘ contracts occupy the scene right after the introductory part comprising the one-hundred basic anafī rules (al-qawā‘id al-fiqhiyya, based for the most part on Ibn Nujaym’s al‑Ashbāh wa-l-naā’ir). Thus, the Buyū‘ finds its logical place at the head of all the mu‘āmalāt: the ijāra (rent), and shuf‘a (pre-emption), which are the two other categories that occupy the second and third part of the Majalla; the final, and fourth part, is solely devoted to the enterprise of judging. Because of its logical and more coherent structure, I shall first observe the theme of “sale” from the Majalla’s chapter, prior to moving to “Kitāb al-Buyū‘” in Ibn ‘Ābidīn’s Radd. This has the advantage of following some of the main categories of political economy in their logical interconnections rather than in the more confusing order traditionally imposed by the jurists. To be sure, my enterprise is fragmentary, time-saving, and is intended to present the reader only with a partial view of contracts and obligations that is necessary for an understanding of the “cases” in this study. One should keep in mind Chehata’s concern regarding the “defects” of the Majalla, which, in turn, parallel those of the classical fiqh. Even though the Majalla “has accumulated definitions, it has not done much beyond transposing cases and enumerating them. No systematic effort has been attempted.”45 But then a question begs itself: What are the implications of such a failure?

  • 46 Schacht, Introduction, 22, 145.
  • 47 aydar, Durar, 1:91.
  • 48 Marcel Mauss, The Gift (Norton).
  • 49 anafīs conceive marriage—at least in part—as a property transaction, even though a contract of mar (...)

59The Majalla’s chapter on “sales” is divided into seven sections (abwāb) and an introduction. What brings together buying and selling and contracts and obligations is that notion of ījāb, whose meaning the Majalla identifies with ithbāt, that is, affirmation (in the sense of demonstrating a willingness to buy or sell). Schacht translates ījāb as an “offer (as a constitutive element of a contract).”46 Article 101 defines ījāb as “the first utterance [kalām] emanating [yadur] from one of the two contractors [‘āqidayn, that is, either the buyer or the seller] for the purpose of establishing a capacity to dispose [taarruf], and accordingly, disposition is guaranteed and established [wa bi-hi yūjab wa yuthbat al-taarruf].” “Offer” is therefore the first and most fundamental move towards establishing a contract: it is indeed a first oral step between buyer and seller (or landowner and tenant, etc.)—and the offer/affirmation could be triggered from either side—that in itself legally establishes an interest in a contract from at least one party. There is a contract, according to the following article 102, only when an acceptance (qabūl: consensual agreement) follows the proposal/offer of the other party. It is therefore the second step that establishes the contract as such: the latter confirms the right of disposition (taarruf). The Majalla has therefore imposed a prerequisite for each contract: an offer must come first in the form of an utterance. Even though the two-step formula is not always necessary—article 167 combines, for an act of purchase, offer and acceptance in a single step—the distinction was probably created as a solution to aging controversies concerning the validity of a purchase whose offer and confirmation took place simultaneously: even though the Majalla made no explicit statement on this issue, the two-step formula and the separation of each step in a different article clearly suggests that collapsing the two in a single act renders the contract invalid.47 So why were the two steps necessary in the first place and why did the fiqh (up to the Majalla) favor a two-step procedure? Anthropologists have often noted that the gift and counter-gift strategies formulated by Marcel Mauss incorporate time as an essential element in an act of exchange.48 In fact, the gift and counter-gift lose all meaning when they take place simultaneously: the counter-gift is a reaction to the gift as a provocation; it can therefore only come after, and the lapse of time between the two is an essential aspect of the strategy deployed by the social actors. The more the time diminishes and tends towards zero (as in a derivative equation), the more the act of exchange becomes one of equality (as in a capitalist economy): I purchased this book for twenty dollars because that was the price marked on the back cover—a typical case of a simultaneous offer and confirmation, and where the importance of time is insignificant (except in assessing the amount of labor invested in a commodity). What therefore characterizes the two-step contract procedure prevalent in Ottoman societies are 1) two oral utterances, one of offer, the other of affirmation; 2) the utterances should fit within a time sequence in which affirmation could not happen simultaneously with the offer; and 3) a contract (‘aqd) that “links (rab)” the offer with the corresponding affirmation: ‘aqd al‑bay‘ suggests, like ‘aqd al-abl (tying the rope), a “link” between two things; but the link is twofold. Obviously, first, the contract links the buyer and seller together, but more important, it brings together offer and affirmation (article 104 describes this process as one of “gripping (ta‘alluq)”). Thus, the end result of this process—that of linking offer with affirmation—is the exchanged object itself that should exist (mawjūd) and be ready for delivery (maqdūr al-taslīm), in addition to falling within the category of māl mutaqawwam with a price (thaman). As article 105 makes it clear, the notion of māl is the broadest category in any act of exchange. Broadly speaking, māl refers to “any” “commodity” that could be exchanged—“any” should be taken cautiously because the exchange of commodities in Islamic societies is subject to all kinds of religious, moral, and political restrictions: so in principle any commodity could be exchanged, but “illegal commodities” (such as wine or pig’s meat) are not legally protected and, technically speaking, they fall under the category of māl ghayr mutaqawwam. This is why the majority of the fiqh treatises define selling as “exchanging a māl with another māl in a way that is specifically useful (mufīd),” the ghayr mufīd becomes then an invalid exchange. The Majalla pushes towards a more global definition, thus paving the way towards “riskier exchanges” in a period of the empire’s incorporation into a world-economy: “Selling [consists] in exchanging māl for māl that could either be the outcome of a contract (mun‘aqid) or not involving one (ghayr mun‘aqid)” (article 105). Here mun‘aqid refers to the actual meeting rather than to the contract per se. The aim here is to point to the possibility of exchange with or without contract. The “contract,” defined in the previous article as that which “brings together” offer and affirmation, leaves its “effect (athar: trace)” both on the seller by becoming the proprietor of the “price (thaman),” and the buyer by becoming the proprietor of the sold object. Excluded from such contracts and not considered as acts of “selling (bay‘)” (and its correlative “buying”) are the following: 1) “rent (ijāra)” defined as a “consideration (compensation for) of the proceeds (badal manfa‘a)”; 2) marriage (nikā) defined as “the exchange of māl with the female vulva (mubādalat al-māl bi-l-bua‘)”;49 3) “donation (hiba)”; and 4) “lending (i‘āra).”

  • 50 In modern terminology, māl refers more commonly to “money,” that is, the nuqūd or ‘umla. The equiva (...)
  • 51 Schacht, Introduction, 134.
  • 52 Substance includes here the essence (al), self (al-dhāt), and characteristics (ifāt): see aydar, (...)

60The key word in all these definitions is therefore māl as the “object” or “thing” to be exchanged: originally it is the property of the person who owns it (the seller) and becomes the property of the buyer through the two-step process of offer and acceptance (ījāb/qabūl).50 “The thing as object of legal transactions, res in commercio,” writes Schacht, “is called māl, but its opposite is not simply the res extra commercium, but there are several graded categories.”51 In the specific context of the Majalla, the act of selling is either the outcome of contract (mun‘aqid) or not (free sale?); and the following types of contracts are included in the first category: valid (aī), defective (fāsid: voidable), operative (nāfidh), and in abeyance (mawqūf). On the other hand, a non-contract sale (bay‘ ghayr mun‘aqid) is invalid (il: null and void) pure and simple. It is only this last category that differentiates itself from the rest, and were it not for the religious and moral impositions that make some commodities illegal, the whole category of invalid would have been superfluous altogether. The four types of sale within the contract category are all legal and the difference between them is a question of degree and should be looked upon as opposite pairs: thus, a sale could be either valid or defective; either operative or in abeyance. Valid contracts are the most common type: whenever a commodity has passed between seller and buyer, even if no cash (or no property) was exchanged in return (in the fiqh, the category of valid applies generally to such things as rent, suretyship, transfer of debts, and donation). A defective contract is one whose commodity is legally protected (that is, falls within the broad category of māl mutaqawwam), but whose exchange modalities are defective: either the price or the terms of payment are unknown (majhūl), or the conditions of selling are inappropriate; by contrast, in an invalid contract, the substance52 of the commodity itself is problematic (in other words, it is a māl ghayr mutaqawwam).

  • 53 Chehata, Théorie, 63.
  • 54 Chehata, Théorie, 67.

61Interestingly, Chehata, within his modernist perspective, looks at the object of the contract and its exchange as the root of any agreement. The “object of the obligation,” as he calls it, could be either a payment in kind (dations), a handing over (of property) (tradition), or an opus.53 By placing the emphasis on the exchanged object itself rather than, say, on the act, Chehata claims that this is what jurists have been doing for centuries since exchange in Islamic law is based on equivalence: equality is what the contracting parties should explicitly aim for. The “cause” of obligation therefore is not the contract of sale per se, but the fact that the property of a thing has been transferred to the buyer, who, in turn, paid an equal value to the seller. Chehata thus concludes that it is a “theory of equivalence” that haunts contracts and obligations in Islamic law and nothing else.54 Despite the merits of such an approach, which, for one thing, explains in one stroke that equality between commodities is at the root of every contract, it leaves aside, however, the problematics of offer and acceptance in Islamic law. (Following Sanhūrī, there should be no obligation in a regular sale contract, but only in debts.) Chehata does indirectly suggest, however, that such a gesture must be superfluous since it does not provide any adequate explanation to his “théorie de l’équivalence”: since “equality” is at the root of contracts, does it matter then how things are exchanged?

  • 55 Article 1101 of the Code civil defines a contract as “une convention par laquelle une ou plusieurs (...)
  • 56 Jean-Claude Montanier and Geoffrey Samuel, Le contrat en droit anglais (Grenoble: Presses Universit (...)
  • 57 I have chosen marad over murad, see, Muammad Rawwās Qala‘hjī, Mu‘jam lughat al-fuqahā’ (Beirut: (...)

62Interestingly, the dynamics of offer and acceptance also constitutes one of the pillars of the English law of contracts. In contrast to the French Code civil which favors agreements,55 English common law, old and new, looks at a contract as “a promise or set of promises that the law will enforce.” The notion of promise includes three essential conditions for a contract to be completed: 1) an offer and an acceptance; 2) a consideration; and 3) an intention to create legal relations.56 Thus, for a legal system that lacks systematic codes and is based on precedent, the notion of “consideration” creates what is to become as “evidence” of a contract. Similarly, the Majalla, by placing forward the dynamics of ījāb, has established what ought to be looked upon as “evidence” for a contract. As we shall see in specific court documents, the evidentiary role of procedural fictions was crucial in expanding traditional contractual settlements beyond their limits. A contract such as the marad (or murad?),57 typical in many ways of the fictitious litigations that plagued the nineteenth century, and which consisted in renting a waqf property, then investing in its foundations and deducting the expenses of construction from the rent, was both a simulated tenancy contract and a contract of sale (because the tenant de facto owned the waqf’s property). The point here is that if we look at anafī practice as locked into synallagmatic contracts, we will certainly fail to understand all the contractual variations whose primary purpose was precisely to bypass such limitations, while being perfectly legal, of course.

63The offer and acceptance dynamics is worth following in conjunction with the practices of the sharī‘a courts. To begin with, we know for certain that those courts practiced, at some level, a straightforward application of the ījāb doctrine (C 3-2). But those were cases where the contract was not contested, and where delivery was immediate. However, the usefulness of ījāb becomes obscured once uncertainty hovers over the existence of a contract, or when the modalities of the contract are contested by the opposing party, if not both; or, in the case of a breach in the contract, or non-performance, or simply a party that defaults. The point here is to see whether the ījāb doctrine effectively provides for any procedural framework that proves of any help, or whether it only plays a limited evidentiary role in quasi-simultaneous exchanges.

  • 58 See Chapter7 infra, and more specifically C 7-2, 8-2, 11-7 & 11-8.

64Let us come back for a moment to our earlier case, the one between the Shihābī Emir and his borrowers (C 3-1). That was a case that was allegedly based on an oral ījāb pact, which entailed that a certain value of silk (only the price was identified, but not the quantity) be delivered by the Emir to the Dūmānīs, but it then turned out to be a nasī’a-debt formula which was qualified by the defendants-debtors as legally “voidable” (since either the ‘ayn or dayn is delayed). So the court’s ruling transformed an originally “voidable” contract into one that was “valid” with new stipulations and a happy ending for both parties. (Note that a “voidable” contract falls within the category of mun‘aqid contract stipulation, hence since it is neither null nor void, could be the subject of a court’s action.) Moreover, and even though a “delivery with prepayment” had been commonly accepted in Ottoman times under the salam contract, the nasī’a, being a much harsher and riskier loan-with-interest, never did receive the courts’ benediction. With such cases, therefore, we’re into a territory that traditional practice does not map well, and towards which judges could only improvise (sometimes with a muftī’s help). The problem then becomes, What is it that the court construes as the “original” contract, and on what basis does it do so? It should be noted that, as is the case here, courts could enforce contractual settlements for which neither a document nor a specific date has been furnished. Such settlements were accepted either because they were acknowledged by both parties, or else evidence in the form of witnessing had been furnished. The point here is that if the courts did in fact contribute in reworking contractual settlements, that was mostly, though not exclusively, through procedural fictions rather than, say, a set of codified rules. My assumption is that the proliferation of contractual formulas was precisely to force every possible settlement into an already acknowledgeable form, while most ground-breaking cases were the ones construed around a muftī’s fatwā.58 In effect, the courts did very little interpretation of contractual settlements, and instead implemented the already routinized (fictional) procedures.

65To ascribe a role to the courts beyond the enforcement of preexisting contractual settlements would have implied that disputants would fight their case based on “implied agreements,” which the courts, by “filling the gaps,” would accept as quasi-contracts and proceed from there (which is the path adopted at common law). In other words, promises or engagements, inferred promises, or simple contract, all of which were left without record, witnesses, or sustainable evidence, would have to be interpreted by the courts as possible contracts where the plaintiff would request a recovery of damages for the non-performance of the defendant. But, clearly, that was not how the courts functioned, and instead, the disputants either acknowledged their contract (as in the above Beirut case), or else the plaintiff furnished evidence (a record or witnesses). For that reason alone, the impact of the ījāb formula remained limited as it was difficult for the courts to integrate settlements that lacked all the formal requisites. It was indeed such difficulties that were behind contractual variation, together with the association of each settlement with a specific name, both of which were devices to minimize transaction costs. In fact, an open-contract policy would have been costly in terms of negotiations, bargaining, implementation, and performance since it would have implied that the parties create their own agreements without any limitation as to a particular form (debt, sharecropping, donation, lease, etc.), and then assume the risk and proceed from there. That’s particularly true of societies where bargaining has to cross kin relationships, socio-economic networks, and politicized bureaucracies, all of which add to the information costs (any venture outside one’s “milieu” is costly in terms of information).

  • 59 Ibn ‘Ābidīn, Radd, 4:517.

66The Majalla goes over several other bay‘ categories that we need not consider here. For our purposes, however, it is worth noting the four different categories of the sold object (mabī‘). The most common is obviously that of exchanging the thing with its price (bay‘ al-māl bi-l-thaman), and for that reason it is simply referred to as bay‘; the second is that of arf, that is, the exchange of money and precious metals for money (bay‘ al-naqd bi-l-naqd); the third is barter (muqāyaa) defined as the exchange of a thing (‘ayn) with another thing, or in other words, it is the exchange of a māl with another māl that excludes the use of the “two currencies (al-naqdayn: gold and silver)” (article 122). Finally, the salam, the contract for delivery with prepayment, is defined in article 123 as a type-contract in which the price is set and pre-paid (al-thaman mu‘ajjal) but the purchased object is to be delivered on due date (al-mabī‘ mu’ajjal). As a corollary to salam, but specific to labor contracts in manufactures, the istinā‘ is a contract of manufacture in which the artisan is given in advance the needed raw-materials (that is, is pre-paid), which in principle should have been unlawful considering that the “selling the non-existent is invalid (bay‘ al-ma‘dūm lā yauḥḥ),”59 but also acknowledged (e.g., in Ibn ‘Ābidīn’s Rasā’il) as a de facto imposed practice by custom and habit.

Figure ‎3-1. Contracts of sale.

Figure ‎3-1. Contracts of sale.

Commentary: The point here is that as long as a contract falls under the category of “mun‘aqid” it would still be negotiable in court even if it were “voidable” (C 3-1). Only contracts that are null and void cannot be endorsed by any court action.

  • 60 According to article 159, ‘ayn originates in the “specified thing (al-shay’ al-mu‘ayyan al-mushakhk (...)

67Article 125 of the Majalla defines “property (milk)” as “what is possessed by an individual whether it is a‘yān [s. ‘ayn]60 or manāfi‘ [s. manfa‘a].” The important point to remember concerning “property” in Islamic law is that it is never restricted to things and substances that could be acquired and possessed. In fact, the use of the thing, its proceeds (yield), and usufruct (manfa‘a) are also considered as property. Thus, a land that belongs to one person could have its “right to use and enjoy the profits and advantages” (that is, usufruct) belonging to another. In turn, the “right to use,” often referred to in the courts as aqq al-manfa‘a, could be “leased” (in terms of an ijāra tenancy contract) to another person. A sharī‘a court document typically specifies, for milk properties, whether the “right to use” the property in question is also included in the purchase. This separation between the property as such and its manfa‘a has given rise to several practices, in particular in the nineteenth century, when both waqf and mīrī (the two most predominant land categories) became economically cumbersome; the manfa‘a also established a notion of “hire” in which the right of use of a property has become a quasi-property all by itself.

  • 61 aydar, Durar, 1:100.
  • 62 aydar, Durar, 1:101.

68Following the definition of property, comes that of māl: “what the character of a human being leans towards and could be stored till needed, whether it is a movable or an immovable property.” Interestingly, the clause specifying that the thing “could be stored till needed” excludes grains and other “unstable utilities (manāfi‘ ghayr mustaqirra)” that cannot be adequately stored.61 Thus, the majority of things (or substances), with few exceptions, have a māliyya, that is, could be acquired, stored, and become the private property of an individual; but the same things are also subject to a taqwīm, that is, an “evaluation” or “assessment.” The evaluation is part of the process that assesses commodities according to religious, moral, and other ideological biases. It is in fact inconceivable that any commodity will end up evaluated and exchanged in the same way. Article 127 of the Majalla notes that there are two meanings for the “assessed commodity (māl mutaqawwam)”: the first is imposed by sharī‘a law and discredits specific commodities from exchange (wine, or meat not slaughtered according to Islamic customs, etc.); such commodities, even though māl in the strict sense of the term, are “not favorably assessed (ghayr mutaqawwam)” by sharī‘a law; their status becomes therefore that of commodities that are either illegal if exchanged, or if an exchange takes place, the law cannot protect its validity (some jurists do not consider such “illegal” things as māl in the first place): thus, either commodities are favorably assessed for exchange and are considered māl, or else they do not fall within these categories altogether. As noted earlier, the case of wheat shows that, even though it is perfectly exchangeable from a religious—or ideological—point of view, it is nonetheless not labeled as māl because its storage conditions are problematic. The same applies to animals that die a natural death and are not ritually slaughtered.62

69The second meaning of “assessed commodity” is an outcome of customary practices: that of an “acquired object (al-māl al-muraz).” For example, fish in the sea are categorized as māl ghayr mutaqawwam, and only the act of fishing transforms them into a commodity ready for exchange. Article 363 explicitly states that the selling of a “non-assessed commodity” is null and void. The outcome of such distinctions is that Islamic law did not create a general abstract category of “the exchangeable commodity” and did not submit every commodity produced on the market to a level of abstract coherence. It is true, however, that the category of māl mutaqawwam meets, at least partially, this criteria; but even within this category, any object that could not be stored (iddikhār) “until it is needed” has to be excluded (e.g., wheat; or grains in general?). Also excluded are the free person and dead meat (from animals not ritually slaughtered). The idea here is to exclude what “an individual character” cannot possibly like. But even when a thing is accepted as māl, it nonetheless runs the risk of the “evaluation” process that classifies few things as not ready for exchange. Thus, the logic here follows a three-step process: 1) Is the thing a māl or ghayr māl?; 2) if it is categorized as māl, is it mutaqawwam or ghayr mutaqawwam?; and finally 3) is the thing classified as māl ghayr mutaqawwam acquired (according to custom) or accepted as such under sharī‘a law?

  • 63 Ibn ‘Ābidīn, Radd, 4:502. An alternative translation: “the proceeds and usufruct of a thing are pos (...)
  • 64 Ibn ‘Ābidīn, Radd, 4:503. Or: “the usufruct is not property as such.”
  • 65 Ibn ‘Ābidīn, Radd, 4:502.
  • 66 As we will see later, the above statement is more confusing than it first appears: 1) Ibn ‘Ābidīn i (...)

70All these categories and sub-categories fall under the general genus of a‘yān (s. ‘ayn). Strangely, a definition of ‘ayn comes much later (article 159): “al-‘ayn is the specific (designated) thing that is personified (al-shay’ al-mu‘ayyan al-mushakhkha) such as a home, a horse, a chair, a pile of readily prepared wheat or money—all of which are a‘yān.” The a‘yān, in turn, is one of the two categories of milk; the other being that of manāfi‘ (proceeds and usufruct). Because the usufruct is not a tangible object but a “right to use” a property (and is itself a quasi-property), only the a‘yān are the things that could be acquired and possessed as objects. Article 151 identifies the “mabī‘ in terms of its ‘ayn that is sold.” This definition might seem superfluous in its generality: since any object is a ‘ayn, therefore any sold object is a ‘ayn too—a tautological statement. In the logic of the fiqh, however, such a reminder of the obvious underscores the division within the broad category of milk: viz. between a‘yān and manāfi‘. The manāfi‘, even though strictly speaking under the category of private property, they cannot be sold and purchased under the same rules as that of commodities in general. Their status is even more ambiguous than that of a‘yān since the manfa‘a is by its very nature not a “thing” (or tangible object). In fact, right from the beginning of “Kitāb al-Buyū‘,” Ibn ‘Ābidīn stipulates that the “proceeds and usufruct of a thing constitute a property but are not a thing (al-manfa‘a milk lā māl),”63 and “usufruct is not a thing (al-manfa‘a ghayr māl).”64 And since “selling is the language of exchanging a thing with another thing (al-bay‘ lughat mubādalat al-māl bi-l-māl),”65 it follows that the usufruct of a thing could neither be sold nor exchanged.66

Figure ‎3-2. Milk subdivisions.

Figure ‎3-2. Milk subdivisions.

Commentary: Besides the big division between a‘yān and manāfi‘, it is important to see where did the “tenancy-rights” contracts fit into the picture. In fact, such contractual settlements, which were neither pure milk nor tenancy contracts as such, became prominant in the urban areas and were for the most part based on an “investment” from the tenant in the property which he or she did not own, thus making the latter a de facto second owner. But even though the economic “benefits” for society as a whole remain by and large questionable as such settlements tend to block tenancy rights and subject them to quasi-sale operations (obviously, it was the tenant who ended up with the greatest advantage), such practices brought tenancy rights closer to sale contracts, thus binding them by status and special settlements rather than opening them to a free competitive market. Finally, as we will see in Chapter 11, contractual settlements of a nature similar found in this chapter were also applied to homicide cases, thus making the damaged body parts, considered as māl, subject to a negotiation-cum-“compensation” in terms of pre-arranged settlements with the culprit or his family. Where does money as ‘umla fall into all this? Considered only as a “means” to “value” (qīma) things, it is therefore not a ‘ayn, which therefore implies that it is not a māl either. So what is it exactly then? In principle, had the fiqh acknowledged the status of ‘umla as ‘ayn and māl, it would have then become like any other commodity—but with the very privileged status that it could be exchanged for any other commodity—and hence the exchange of money for money could only be done at a price (“interest”), otherwise there would be no incentive for it. However, having not acknowledged that common and special status as applying to money, it does not fit, strangely enough, anywhere in the above chart. It was, indeed, the thing invisible in anafī dogma.

  • 67 In another context, it also means the covenant of protection provided to the non-Muslim dhimmīs.
  • 68 An alternative translation: “Freedom of indebtedness must be presumed, unless proven otherwise.” Th (...)

71The following article (152) defines “price (thaman)” as “that which is in consideration (or counter-value) for the sold object (badal al-mabī‘) and implies an obligation (dhimma: engagement, undertaking, safekeeping).”67 Among the one-hundred “general rules” given priority in the Majalla, article eight is devoted to “liability (dhimma)”: “In essence man is free from obligation (al‑al barā’at al-dhimma),”68 meaning that, unless proven otherwise, a man has no obligation to anyone else. Similarly, a man is innocent of any wrongdoing unless proven otherwise. Another article (612) gives dhimma a meaning closer to “self (al-dhāt).” The point here is that the association of an act of sale with obligation and engagement points to a stronger view than normally held under classical anafism, which limits obligation to debts only. Thus, in the context of an obligation arising from a contract, dhimma becomes “care as a duty of conscience”: in other words, the “manifest intention (niyya)” of both buyer and seller is the “essence (al)” of a transaction.

Can prices be fair?

  • 69 aydar, Durar, 1:107.
  • 70 Ibn ‘Ābidīn, Radd, 4:501.
  • 71 Ibn ‘Ābidīn, Radd, 4:501.
  • 72 Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974 & 1995), 95.

72How is the “price” of an exchanged object determined? Or which elements determine the “price” of an exchange commodity? When the Majalla looks at price as the “value of a thing,” it forces into it a meaning much wider than the fiqh ever dreamed of.69 Indeed, it looks more like a common sense definition of price and value, transferred from the common to the specific. In the version proposed by Ibn ‘Ābidīn, the māl “is what our natural disposition desires and could be stored until needed”; the māliyya “confirms the activity that all or some people share in acquiring things (tamawwul)”; the taqawwum, in turn, establishes what the acquisition of things is all about and legally permits the use of some of the acquired things (ibāat al-intifā‘ bi-l-māl shar‘-an). Therefore, an object, such as wine, is a māl but without the legal prerequisites for a “usage permission (ibāat intifā‘)”; on the other hand, a grain of wheat, even though its consumption is obviously legally permitted, is not a māl because it failed the test of tamawwul.70 In fact, selection is what characterizes the process of tamawwul altogether and consists in deciding which things (commodities) are legal for acquisition and consumption and which are not. The māl is therefore “broader than the mutaqawwam.71 Thus far, in comparison to the Majalla, the differences seem indeed minimal: some definitions are even quoted verbatim from the Radd and other anafī sources. What has changed, however, is the order in which definitions and statements are introduced—a new order that probably conceals a different logic. The Majalla places the “Buyū‘” chapter at the head of all the mu‘āmalāt, and thus operates directly with the notions of offer and acceptance (ījāb wa-qabūl). In the more classical exposition adopted by Ibn ‘Ābidīn (and many of his predecessors), the notions of māl, māliyya, and taqawwum come first, and the two-step process of offer and acceptance, which is introduced much later, is not even as thoroughly explained as in the Majalla. It could well be that the Majalla, in itself a rationalization of anafī contracts and drafted in such a way to make transactions between individuals and groups more transparent, naturally saw in the process of offer and confirmation, and its modalities, an evidentiary role for the newly established courts. The second half of the nineteenth century was a period of economic renewal and change, caused mainly by an aggressive capitalist European market expanding to peripheries and semi-peripheries, such as the Ottoman Empire. The notions of māl and its “assessment” became of secondary importance to the transaction process itself. The other possibility is that the Majalla was indeed looking towards are a more modern concept of contractual liability, so that even a regular contract of sale would now entail an obligation, which also includes, among others, exchanging currency with currency, but with no clear notion of “interest.” Thus, by placing the essence of a contractual settlement in the ījāb formula, the act of exchange itself and its modalities become formalized. In fact, judges know all too well that even professionals fail to meet the judicial criteria for exchange, so that in the case of non-performance the court must begin with the all too obvious: Was there a “contract” in the first place, and what were its modalities? In other words, the more the law of contract is freed from specifics—and the adoption of a general formula indeed contributes in that direction—the more the emphasis is placed on “contractual liability.” It all consists in being able to determine who is liable in the case of non-performance in particular, if the settlement was neither based on a record nor an a formal agreement. Thus, a court may refuse to admit any liability in a “contract” until the formal requisites of offer and acceptance, as specified in anafī practice and the Majalla specifically, had been satisfied. We are closer, in this respect at least, to the American common law, which looks upon “consideration” as the outcome of offer and acceptance and as evidence of “bargaining,” hence a “mutuality of obligation” and a liability in the case of non-performance.72

  • 73 Ibn ‘Ābidīn, Radd, 4:501.

73Once Ibn ‘Ābidīn establishes that māl as property is a broad category that needs an assessment on an individual basis (the a‘yān are even broader than the amwāl), he proceeds with the notion of “price (thaman).” There are four types of exchange: barter (muqāyaa) is defined as the exchange of a thing with another thing (‘ayn bi-‘ayn); money exchange (arf) means exchanging “a price with another price (thaman bi-thaman)”; the contract for delivery with prepayment (salam) is the exchange of a price with a thing; finally, and surprisingly, the most common type of exchange, that of a thing with its price, “is not associated with a particular name (laysa lahu ism khāṣṣ).”73

  • 74 Ibn ‘Ābidīn, Radd, 4:501.
  • 75 Ibn ‘Ābidīn, Radd, 4:502.

74The problematic notion of “price,” however, is not granted much analytic attention. Not only is no effort deployed, throughout the “Buyū‘” chapter, to come to terms with the price issue, a deliberate strategy of detachment is even self-imposed. Thus, a reminder comes first that “the proceeds are from the a‘yān and not from prices”; it follows therefore that “price is not the final target, but a means to the target”; and because of this, there is no prior condition that requires to place a price with a sold object: “with this in mind, the price has become among several conditions, having the status of the workers’ equipment (bi-manzilat ālāt al-unnā‘).”74 In other words, since there is no necessary association between a price and a sold object (in the sense that it must be priced), the price is only brought up as a contingent “stipulation (shar)” whenever it proves necessary. Thus, a contract of sale “could break up because of the deterioration (halāk: destruction) of the sold object but not of its price.”75 In other words, since the purpose of a transaction is to acquire a desired object rather than its price, the deterioration of the object is enough in itself for a breach of contract; while a price does not “deteriorate” like a thing. The surprising logic here is to place the purpose/telos (qad/maqūd) solely on the side of the desired object and to perceive the price as a “means (wasīla)”: Unless we are limited to barter, isn’t it obvious that the price is also a purpose for the other party, the one who sold the commodity? But the logic here is that even the seller did not perform his transaction for the sake of the price, but only to acquire something with it in the near future.

75To come back to our original question: How is the “value (qīma)” of an exchanged object determined? On what ground is a specific “price (thaman)” associated with an exchanged object? The Majalla claims two meanings to price (article 152). The first is that of “the value of the sold object” which is directly associated with dhimma (“care as a duty of conscience”); the second meaning determines the “equivalent (badal: consideration),” that is, “the māl that acts as a counter-value to the sold object (‘iwa-an ‘an al-mabī‘).” The “value”-as-price of the exchanged object is determined, based on the first meaning, in terms of fungibles that can be weighted (mawzūnāt), or measured (mukayyilāt), or have similar measuring units (‘adadiyyāt al-mutaqāriba), in addition to currencies, but excluding the non-fungible a‘yān because of the difficulty in associating them to a specific value, hence to the notion of dhimma. As to “consideration,” it could include all of the above, in addition to “non-fungibles (al-a‘yān ghayr al-mithliyya),” such as animals and clothes. Thus, the only category that does not fit within the two defined meanings of “price” is that of fungibles, a‘yān mithliyya. Notice that the “value” of a commodity either has a price assessed in terms of fungibles (weights, measures and currencies), or else is bartered for another a‘yān. The notion of “price that acts in consideration of the sold object on the basis of liability (dhimma)” (article 152) therefore places all emphasis on the other side of the equation: that is, on the object—whether a currency or something else—which in turn acts as an evaluator to commodities. Nothing has been mentioned yet on how to evaluate the object poised for exchange; and the only thing that has been determined thus far is the objects that could act as a general medium for exchange. The latter, in turn, poses the same problem of evaluation: how is their value and price to be determined? This question urges itself even upon currencies because whether they are based on gold or silver (or paper money for that matter), it remains to be seen on what basis the quantities of gold and silver in the minted coins have been valued for. In short, there seems to be thus far a missing “ground” to evaluate all legally exchanged commodities, on either side of the equation.

  • 76 Ibn ‘Ābidīn, Radd, 4:534.

76A beginning to an answer is not even to be expected in either of the two articles that follow. Article 153 defines the “known price (al-thaman al-musamma)” as the price that the contractor determines or establishes whether it is identical with “the real value (al-qīma al-aqīqiyya)” or is superior or inferior to the latter. Article 154 for its part establishes the existence of an “average price (thaman al-mithl)” commonly identified as the “value” or the “real price” of the exchanged object. The difference between the two prices, however, only serves for legal purposes in determining the difference between the “real value” of the commodity and its market value. In effect, if market value is the price for which the commodity is purchased based on a certain competitive advantage, the “real value” is nothing but a legal fiction that serves as “reference” to market price. For example, if a person owns a thing whose “real value” is 100 piasters and proposes it for a 100 piasters (al-thaman al-musamma), but ends up getting 120 piasters on the market, then the average market price is higher than what the thing is really worth. The problem, however, is how to evaluate the “real value (qīma)” in order to understand its legal implications. But even a closer reading of the texts, however, disappoints. The same could be said about the “value of a rent”: there is also an “average (or fair) rent (ajr al-mithl),” which is the rent estimated by professionals (article 414), or more precisely its market price. But this does not say much on how rent in general affects or is affected by the other economic indicators such as wages and profit; while “wages (ujra),” in turn, were not “linked” to either rent or profit. In fact, it turns out that the Majalla, even though explicitly posing three values, is only concerned with the last—practical—one: the market value. Moral issues notwithstanding, the real concern is with the “market price”: Ibn ‘Ābidīn follows Abū Yūsuf’s rule that currencies should be assessed on the basis of “their value on the day when the selling took place.”76 There are no directives, however, on how to assess this “value” while positioning a commodity on the market.

  • 77 Joseph A. Schumpeter, History of Economic Analysis (New York: Oxford University Press, 1954 & 1994) (...)

77The two (or three) values in assessing the amwāl might suggest a similarity between the “value in use” and “value in exchange” of the Physiocrats and later eighteenth- and nineteenth-centuries European economists: the “stated value” of the Muslim jurists shows a certain parallelism with the “value in use” on the ground that both seem concerned with the “real value” of the thing, that is, outside its market value; while the “average (market) price” is similar to the “value in exchange.” Yet, there is nothing more radically different than these two systems in the ways they construct their perceptions of value and price, not to mention the other correlative notions of wages and profit. In fact, in the early Physiocrats’ system, the first assumption is that all wealth comes from land and human labor adds to this natural wealth. There is a “value in use” as long as labor is oriented to satisfy one’s own needs of subsistence (clothing, shelter, and household). The second assumption is that the value of things is linked to exchange: once a thing is ready for exchange, that is, loses its primitive function of “value in use,” it becomes a “value in exchange.” Both values, however, are linked, in the process of their evaluation to labor: only labor gives value to things. Finally, money—as a sign (signifier)—represents wealth circulating around in the form of exchangeable commodities. It took a long time—by the second half of the nineteenth century—to perceive money as a commodity on its own, whose use generates an interest, which in turn has since then been conceptualized as the price for the use of money.77

  • 78 See Michel Foucault on how nineteenth-century political economy fits within the general épistémè of (...)

78The unprecedented notion that Adam Smith introduced was not his emphasis on labor, since this was already one of the Physiocrats’ basic ideas, but that labor is the common measure of all things: it could be measured, calculated, and above all, constitutes an invariable measure. Ricardo will precisely question Smith’s notion of labor as the yardstick for all value. For Ricardo, labor itself will gain the status of a product: it is purchased and exchanged like any other commodity, and hence subject to the same price fluctuations as other commodities. Currencies will cease to be signs representing wealth, but also, like labor, a commodity produced for exchange. Thus, even though labor retains its primacy in Ricardo’s system of political economy, it ceases to be the invariable yardstick. In other words, the theory of production precedes everything else: circulation, labor, currencies, etc.78

  • 79 Cf. Maxime Rodinson, Islam et capitalisme (Paris: Seuil, 1966), Chapteriv: “Influence de l’idéologi (...)

79The assumptions of the Muslim jurists are founded on entirely different premises. Nothing is more alien to the fiqh than production and its cycles. The whole notion of māl is neither articulated around labor nor production. Wealth is also perceived as natural and divine—and more concretely, in land—and what man adds to this natural wealth, through his own labor, he does to meet his subsistence. In other words, he becomes a producer of amwāl. Those things, however, are perceived as an “extension” to natural and divine wealth and should therefore obey the same “sanctity rules” as other natural products: hence the major concern of jurists in creating their venerable process of “assessment” and their division of amwāl into the two broad categories of mutaqawwam and ghayr mutaqawwam. But if the “labor theory of value” has not been successfully implemented in Islamdom, it is not solely for moral and religious reasons as is commonly assumed. Europe shared its own vindications against usury, which were eventually surpassed thanks to the early capitalism of the Italian city-states. One should therefore look at the stumbling economic conditions under the Mamlūks and Ottomans in their totality, namely by looking both at the material conditions and institutional discourses. It was, indeed, the nonexistence of an autonomous discourse on political economy, one that would have tackled such venerable notions as value, money, price and interest, that eventually left the fiqh in a gray area on its own.79

80Historians of the Ottoman Empire should therefore rethink the roots of “political economy” in terms of “values” that cannot be reduced to their prices, and whose legal variations are probably as relevant as their economic ones; or the contractual variations that push for a variety of property rights, all of which should be valued in terms of the transaction costs inherent in any bargaining process; and, finally, assess the practice of the courts and other legal instances, such as the regional councils and sultanic (bureaucratic) legislation, in their capacity to generate additional contractual settlements, so that property rights were not limited to what doctrine had stipulated.

The language of contracts

  • 80 Ibn ‘Ābidīn, Radd, 4:512.
  • 81 Ibn ‘Ābidīn, Radd, 4:512.
  • 82 See, Haim Gerber, ““Palestine” and Other Territorial Concepts in the 17th Century,” International J (...)

81So far, we have dealt with some key “economic” categories in the following (logical) order: property, a‘yān, manāfi‘, amwāl, contract, value and price. Milk is therefore the broadest category since it covers both “things” and their “proceeds.” Some of the a‘yān are amwāl, that is, things whose exchange is legally protected by means of a contract; but the “assessment” of the some amwāl makes them ineligible for legal contracts. The whole notion of contract is based on the initial oral pact of offer and affirmation. Both the Majalla and earlier anafī texts underscore the fundamentally oral aspect of exchange to the point that the written document, if available, becomes a derivative of the oral procedure of offer and demand. Thus, in the Majalla, the possibility of a written contract comes much later, in article 173 (seventy-two articles after the one on offer): “In the same way that offer and affirmation could be orally stated, they could also be performed in writing.” For his part, Ibn ‘Ābidīn states that “writing is like speech [al-kitāba ka-l-khaāb],” then quotes Sarakhsī’s Mabsū: “In the same way that a marriage contract is completed in writing, selling and other dispositions [taarrufāt] are also contracted in writing.”80 There is therefore clearly a primacy of the oral in these societies, a primacy probably imposed by the standing power of customary practices. A practice, even one that proves not in harmony with the precepts of the fiqh, was justifiable or excusable in light of the generally accepted standards of the community. Furthermore, the fiqh looked at custom primarily as a linguistic dressage. In other words, there was an explicit awareness in sharī‘a law that what it all amounted to, in the final analysis, was a linguistic habit, and what the fiqh could do, under such circumstances, was a de facto acceptance of the practice, in particular if the aim was general enough and not limited to a particular locality. Unsurprisingly, therefore, the Majalla devotes several of its “general principles” to the issue of “accepting the oral customs” (articles 36, 37, 39, 43) and to language in general (articles 3, 12, 61). Article 168 explicitly states that “offer and affirmation in [an act of] selling consists in every two utterances [laf-ayn] uttered to conclude a sale in the custom of the town and its people [al-balda wa-l-qawm].” The fiqh for its part devotes a great deal of its energies in establishing protocols of oral contracts. If the buyer says: “I bought this slave of yours for a thousand dirhams,” and the seller replies: “You did so”; then the buyer says: “Yes,” and the seller, in turn, replies: “Give me the price”: this form of oral exchange establishes to Ibn ‘Ābidīn a legally valid contract even though no written document exists.81 But who guarantees the linguistic norm in the practice of sale? Some core passages in Ibn ‘Ābidīn’s Risāla on custom suggest a generous attitude similar to the one in the Majalla. In fact, the Majalla radicalizes and explicitly declares what some jurists had already stated albeit confusingly: that as far as oral contracts are concerned, the customary practices of every “locality” should be accepted as valid and legal. Even though no lower limit was ever imposed as to what “locality” stands for (the linguistic connotations are even more confusing: balad, bilād, bilādu-nā, balda, qawm, ahl, etc.),82 the fiqh stumbled over the issue of a general versus private custom: in principle, only a general custom should be accepted, even though there are several historical examples of “local” customs being also equally approved as norm. It is therefore safe to conclude that there was no easy solution to what the fiqh should integrate within its corpus among the numerous (linguistic) customary practices. Indeed, the fiqh was itself constructed on the principle of a “general” acceptance of the prophetic practices as more normatively valid than the other more “local” ones. The enterprise of the fiqh, in its different schools, has since then accommodated locally influential practices into the more general framework of the canon: in other words, it was attempting to accommodate the historically “local” with the canonical norms.

  • 83 Ibn ‘Ābidīn, Radd, 4:513.

82anafism therefore cannot but accept emerging practices, but it can only do so while attempting to impose a form on the immense number of the latter’s variations: after all, such practices have no legal value in themselves unless articulated into the more general language of the fiqh. Thus, by imagining a formal dialogue between buyer and seller, Ibn ‘Ābidīn was attempting to discursively integrate and legalize a customary oral contractual form. His approach is even more evident when it comes to the “marriage contract (kitāb al-nikā).” Conceived among anafīs as a contract in which the dower (mahr) is exchanged for the vulva (a process known as tamlīk al-bua‘), the two parties have no other choice but to draft a written contract (kitāb does suggest a written text), but anything that precedes this event, such as prenuptial arrangements with possible legal implications, could be orally bargained for. The written document (kitāb) establishes the right of the bride to give her approval to the groom’s offer in a majlis different from the one in which the offer was initially made. It is the written document that makes possible the transfer of the approval to another time and place: “Once she reads the letter [kitāb] for a second time, with his words ‘I’ll marry you under such and such conditions,’ and she accepts [the offer] in front of witnesses, the contract is valid as if [the groom] uttered his words [in person] for a second time”; in other words, “the reading of a document has the status [bi-manzilat] of an offer made through a document.”83 Thus, while a customary practice remains tied up to the locality that produced it and made its existence possible, a document, in a way very much similar to a legal text, travels in time and space and achieves the status of oral repetitiveness: it is as if the document’s “author” becomes present in different places and times.

  • 84 aydar, Durar, vol.1, commentary on article 10.
  • 85 Article 37 of the Majalla states that “What is commonly practiced by people should be followed (ist (...)

83In any case, testimonies only confirm the ownership of property, over a period of time, which in itself does not include the present. In other words, since it is impossible for any witness to prove that his party owned so and so for such a period, without any interruption and up to the present, the under-oath assertion that ownership “begins” with a specific date, and that any knowledge of the purchase, transfer, and rights, is hence reliable, thus works under the assumption that all the latter do prima facie apply to the present. Hence the court has to assume that this ownership has been maintained and is still valid to the present—the time of the hearing. In fact, one of the “general rules” of the Majalla states that “the continuance [baqā’] of what has been established for a time period is legally accepted as long as there is nothing that prevents it from persevering” (article 10). In the case of properties, testimonies are always about the past (unless the witness has direct evidence that the day of the hearing his party still owns the property), and it is only through a legal technique attributed to Shāfi‘ī, and similar to analogy, known as istiṣḥāb, that is, “by analogy to past experience,” and with no evidence to the contrary, that testimonies are “extended” to the present.84 But what it all amounted to, in the final analysis, is evidence of a wa‘ yad, or “occupation,” meaning that the proceeds were the labor of this particular person or group irrespective of who “owned” that property “originally.”85 It is therefore a question of accepting “time (zamān)” as a crucial factor in establishing property rights, as the tenth general rule of the Majalla correctly states (“The old should be left to its perennial character”): for example, a plaintiff enjoyed that possibility in providing evidence that his wa‘ yad status (“occupation”) over a period of time was justified, even though that property might not have been originally his.

  • 86 Gilmore, Death of Contract, 45-8.
  • 87 aydar, Durar, vol.1, commentaries on article 12.
  • 88 Ludwig Wittgenstein, Philosophical Investigations (Oxford: Blackwell, 1958), Ā43.
  • 89 Article 61 of the Majalla states that: “If the literal meaning is not possible then the metaphorica (...)
  • 90 The Majalla, opting for a more “secular” tone than Sharī‘a law in general, admits that “it cannot b (...)

84That was accompanied by a general formalization in the process of accepting evidence, whether documented or oral. Indeed, and in a way strangely similar to the formalism (or objectivism) that shook the foundations of the American common law after the Civil War (thanks in part to the pioneering effort of Justice Holmes),86 anafī practice (in particular in the more formal attitude of the Majalla) was looking towards the external manifestations of mutual assent. (Criminal settlements were also bargained for not in terms of the subjective intent of the accused, but of the external manifestations of the crime such as the tool of the killing: see Chapter 11 infra.) Thus, speaking of written contracts (e.g., sale), the third article of the Majalla maintains that “what should be taken into consideration [al-‘ibra] are the purposes and meanings [maqāid wa-ma‘ānī] rather than statements and syntax [alfā wa-l-mabānī]”: if, for example, in a donation, the giver stipulates that his donation should be compensated for, the contract ought then to be considered as one of sale since its “meaning” (ma‘na) has become associated with the general sale formula despite the giver’s explicit use of “donation” (hiba). As soon as we move into the domain of the oral, however, the Majalla gives precedence to the “literal meaning (al-aqīqa)” over the “metaphorical (al-majāz)”: “The essence [al] of speech is in its literal meaning [al-aqīqa: truth].”87 This “theory of language” assumes, on one level, a “literal meaning” where every word denotes unambiguously an “object”; thus, the “meaning” of a word becomes associated with its common use as Ludwig Wittgenstein had already noted in his Philosophical Investigations: “For a large class of cases—though not for all—in which we employ the word ‘meaning’ it can be defined thus: the meaning of a word is its use in the language. And the meaning of a name is sometimes explained by pointing to its bearer.88 At another level, the “meaning” of words and what they denote is more ambiguous: some words and sentences definitely have a “metaphorical meaning.”89 When we proceed from the literal to the metaphorical, it usually amounts into accepting the customary meaning of a thing or practice: in fact, sharī‘a law very seldom admits that opinions, rulings, and adjudications change in time; and whenever it does, it recognizes the change only as forced through custom and habit.90 There are words whose meanings need to be looked upon differently, or dropped altogether, simply because their customary usage has changed.

85The fiqh therefore does not admit that either its concepts or juristic typology are subject to internal changes: that is, it neither admits conceptual flaws nor weaknesses of reasoning due to some internal limitations, nor limitations imposed by the very nature of language itself. All change has therefore to be external: custom could not only modify the nature of rulings and opinion-making, but could also introduce some new linguistic habits within the school. Notions like custom and language made possible the integration within the anafī framework of contractual practices (such as the istinā‘ and salam) and property rights that would not have been possible in the first place. That was indeed even more evident in the various customary practices collectively known as tamlīk al-manāfi‘, the “ownership of the proceeds.”

  • 91 “In the case of ‘things that increase’ (māl nāmī; namā’, the accession) the usufruct includes the p (...)

86An ambiguity surrounds all manāfi‘. On the one hand, if we understand by manfa‘a as the proceeds of a land, that is, its yield, then those should be the “property” of whoever labored them: such proceeds should in principle, like any other commodity, be eligible for exchange. In other words, their status should be that of a māl mutaqawwam.91 On the other hand, if we understand by manfa‘a the “right of usufruct” of a land, home, or shop, then the association of manfa‘a with “property” might seem odd in the first place: shouldn’t “the right to use” a property that belongs to someone else be associated with a “hire contract (‘aqd ijāra)”? How does then milk come into the picture?

  • 92 Schacht, Introduction, 134.

87Schacht, who rightly included manfa‘a in his chapter on “property,” connects the notion of usufruct with that of a thing: “The usufruct is, in a certain way, regarded as a thing; the use is not a ius in re aliena but a property of usufruct. Then, however, usufruct is not merely associated to the other things but made the subject of special transactions; the contract of ‘āriyya (loan of non-fungible things) is defined as the gratuitous transfer of usufruct, the contract of ijāra (hire and lease) as the sale of usufruct, but they are nevertheless separate contracts.”92 What is of interest to us in conjunction with the practices of the sharī‘a courts is the notion of the “property of usufruct” and how this “right” translates into “separate contracts” such as gedik (kadak), khulū, marad, muzāra‘a, musāqāt, and mashadd maskeh, all of which share common norms: 1) they were all part of the broader category of a “lease contract (ijāra)”: that is, they were not forms of contract all by themselves but included as clauses within a lease contract; 2) they mostly represented investments, in one way or another, from the tenant into the leased property; 3) such investments often became values-in-themselves, that is, they could be purchased, rented, transferred, or inherited, as if they were the “property” of the tenant: in other words, they became a “property” that was “separate” from the original property; and 4) all such legal categories, which historically came into being during the late Mamlūk and early Ottoman periods, which were more “patchworks” to the system than genuine substantive transformations, achieved through the practice of the courts, the full status of “property,” even though that was never explicitly stated. Because of the confusion that surrounded the status of such judicial categories, it therefore needs to be known whether 1) they should strictly speaking be considered as manāfi‘; 2) they could achieve the status of “property”; and finally, 3) whether they should be considered as special lease contracts.

  • 93 George Young, Corps de droit ottoman (Oxford, 1906), 6:68 (note 50).

88Broadly speaking, what we are concerned with here, concerning the categories enumerated above, is “something” which has been “added” by the tenant to the leased property: basically, an equivalent to labor (even though the jurists did not see it that way) in the form of plantations, buildings, renovations, or rehabilitations. As George Young put it, “This right of property (milk) of the trees or constructions on a state-owned land, either ‘possessed’ by the same proprietor or by someone else, looks very similar to the ‘jus superficiei’ in Roman law, in which ‘the right over an area (droit de superficie)’ is founded on the conception that an edifice or another structure located on real property belongs to someone without the soil or the land.”93 The basic idea, therefore, is that of the separation between the land itself (and its soil), on the one hand, and materials (edifices, plantations, etc.) located on the land, on the other: they could in principle belong to two different proprietors, and the second one could have initially been a regular tenant.

89Thus far, in our discussion of property and contract, we have encountered a certain parallelism between the Majalla and the fiqh texts, in particular Ibn ‘Ābidīn’s Radd. However, this ceases to be so in the final sections of the Buyū‘ chapter in the Radd. Surprisingly, these sections include important recapitulations from previous chapters or works (in particular the Tanqī) on such notions as the farāgh, khulū, kadak, kirdār, marad, and mashadd maskeh, all of which were avoided in the Majalla. Why should such categories, usually associated with lease contracts, be included in the only chapter on contracts of sale? The Majalla not only avoided them in toto, but no specific articles are even devoted to many of the land categories essential in the Ottoman Empire: Could that be an indication that there was a concerted effort, in the second half of the nineteenth century, to forego many of the notions that might have become economically obsolete?

  • 94 Ibn ‘Ābidīn, Radd, 4:502.
  • 95 The same argument is reiterated verbatim in Salīm Rustum Bāz, Shar al-Majalla, vol.1 (Beirut: Dār (...)
  • 96 aydar, Durar, 1:371.
  • 97 aydar, Durar, 1:371.
  • 98 Mā thabuta ‘ala khilāf al-qiyās fa-ghayra-hu lā yuqās ‘alay-hi.

90Ibn ‘Ābidīn begins his assessment of those newly imposed “hire” categories (apparently since the early eighteenth century), all of which it seems the outcome of custom and willy-nilly broadly associated with buyū‘, by noting that “the usufruct is a property but not a thing subject to judicial transactions [al-manfa‘a milk lā māl: the usufruct is something that could be possessed but is not a property (of the tenant)].”94 The milk is here defined as that thing to be disposed of for a specific purpose, which constitutes a legal relationship between an individual and a thing in which the right of possession is not only absolute, but also prevents others from possessing it; and the māl is what is stored (yuddakhar) until needed; therefore the manfa‘a cannot possibly be in this category because it cannot be “stored.”95 In his introduction to the “hire (ijāra)” chapter in the Majalla, the commentator ‘Alī aydar notes the “similarity” between a “contract of sale (bayān al-bay‘),” which consists in “giving a thing as a property [to the buyer] for a counter-value (tamlīk al-a‘yān bi-‘iwa),” and a “tenancy contract” which consists in “giving the usufruct [to the tenant] for a counter-value (tamlīk al-manfa‘a bi-‘iwa).”96 The similarity is indeed striking, in particular the association of “property” with a “tenancy contract.” (We are far here from the French Code civil (1804) that looked at the “locataire” as someone exercising a droit d’usage et d’abus.) One of the peculiarities of Islamic law is its association of “tenancy” with tamlīk rather than with a “right of disposition.” aydar gives a hint as to why the fiqh was historically at odds with the notion of ijāra: “Rent is a firm [notion] in the Qur’ān, sunna, and the consensus of the community, but it is against analogy [qiyās] because the object of such contracts is the manfa‘a, that is, a nonexistent entity. Analogy requires the non-validity of rent, but it was accepted on the basis of need [āja], and this because man is in need of the usufruct of things that he cannot afford to purchase. Not every person can afford purchasing the home that he needs to live in, or the bath that he needs for washing, or the mule that carries his body and things. But it is easier for him to rent such things and to take advantage of them.”97 Rent is therefore one of the basic legal categories that does not fit with analogy, and because other ones do not fit as well (such as the practices of istinā‘ and salam), it became common practice to go forward with legal opinions in favor of local customs that could not be possibly deduced from the venerable method of analogy, and then deny the possibility that other opinions be deduced from them by the same method. In fact, the Majalla explicitly states such a prohibition in one of its “general rules”: “What has been accepted against analogy cannot itself be the subject of analogy” (article 15).98

Bypassing the rigidity of tenancy contracts

  • 99 In contemporary Syria, Lebanon, and Egypt, among others, landlords have to pay large “compensatory” (...)

91Rent is therefore a problematic category in Islamic law and remains so even after the implementation of modern codes after the colonial period.99 Accepted by necessity against analogy—as many customary practices are—and associated with milk rather than, say, a “right to use” the property, “rent” has become a core category in Ottoman times around which several sub-categories proliferated. It needs to be known therefore whether these sub-categories are to be associated directly with the notion of manāfi‘: Could they all be grouped together under the heading of tamlīk al-manfa‘a? The question is important due to the large number of court cases in which a “tenancy contract” deviates into a “compensation” procedure for using the property or for having invested in it. In other words, many of these cases begin with a lease contract but end up with compensation requests. By requesting indemnities, the tenants either hoped for long-term leases below “the fair rent” or else in investing into property rights in conjunction with the leased property.

  • 100 Ibn ‘Ābidīn, Radd, 4:520.
  • 101 According to Ibn ‘Ābidīn, the majority of lands in Bilād al-Shām were waqf.

92Prior to offering a thing for rent, it should be legally posited as “ready for acquisition of proceeds (mu‘add li-l-istighlāl).” This “readiness” applies in principle to all kinds of objects: homes, khāns, baths, lands, and also animals. Article 417 of the Majalla states that “the lease of a thing continuously for three years is an indication that it is ready for acquisition.” Another way of knowing the availability of a thing for rent is simply to make it publicly so. Usually, a tenancy contract is for a three-year period, but the court records are full of legal devices that extend the period either to a longer time framework or indefinitely (investing in the rented property, or seeking a ruling from a Shāfi‘ī or anbalī judge were among the most common nineteenth-century procedures). Quite frequently, therefore, landlords encountered enormous problems terminating their tenants’ leases. The court records show a clear trend of tenants becoming like “second landlords” imposing their will on the initial landlord (or a waqf’s administrator) and bargaining on their own in the courts in order to sell a khulū or gedik. Broadly speaking, the phenomenon was that of tenants selling to the succeeding tenant, and with no apparent intervention from the landlord, of “the right of occupancy” so that the property becomes eligible once more for “acquisition”: in other words, it becomes mu‘add li-l-istighlāl all over again, after the previous tenant sold his “acquisition rights” (sometimes to the landlord). This “right of occupancy” has several technical names depending on whether the leased object is a home, shop, land, or an administrative position; belongs to a waqf; or needs a “right to cultivate.” The broadest category that possibly applies to many of the available properties for rent is that of farāgh (“vacancy”): “What we said about the vacancy of a position [al-farāgh ‘an al-waīfa],” notes Ibn ‘Ābidīn, “could be similarly applied to the capacity to dispose with the mashadd maskeh [“right of cultivation”] of lands [...]. The same could be said on the vacancy of a tax-farmer [za‘īm] over his timār, so that if he vacates it to someone else, and the sultan did not address it to whom it has been vacated for [al-mafrūgh la-hu], but left it with who vacated it or addressed it to someone else, there should then be a compensation for the consideration to vacate [badal al-farāgh] from the tax-farmer to the one he vacated it for: because [the latter] only agreed to pay the sum on the condition that this right [to become tax-farmer] becomes his, and not just for the sake of the vacating, even if someone else takes it.”100 The general notion of farāgh shows that not only was it difficult for the common lot of individuals to own rural lands, but that renting these lands, or the shops and homes in the main cities, was an infernal process that often involved paying for “compensations,” “considerations,” “rights” and privileges. Thus, in addition to the slowdown caused by the majority of rural (and some urban) properties blocked as mīrī and waqf,101 properties were inhibited by further restrictions when it came to actualizing lease contracts. But if the combination of mīrī and waqf lands blocked from circulation a large part of the “immovable capital,” the damage caused by the farāgh system in all its forms was even greater: it robbed landowners and proprietors (including the beneficiaries of a waqf) from their genuine resources and placed “the fictitious rent”—that is, all kinds of compensations and privileges—into the hands of the tenants. This has lowered the “fair (real) rent” considerably (or what in legal terms is referred to as ajr al-mithl) because the landlord has to take into consideration the fact that his new tenant should pay to the previous one, in order to vacate the place, considerable sums of consideration (badal); and the ravages of such practices were so damaging in the long run that the payment of taxes has shifted from the landlord to the tenant: it is unfair, argues Ibn ‘Ābidīn in one of his Rasā’il, to force landlords and waqf beneficiaries pay taxes when the value of their rent has become insignificant.

  • 102 Ibn ‘Ābidīn, Radd, 4:521.
  • 103 Commonly referred to as itikār in modern Arabic.
  • 104 Bāz, Shar, 1:248.

93An example of the privileges awarded to the tenant is that of khulū (“vacancy”): “The shop’s khulū becomes the right [of the tenant] [aqq al-musta’jir], so that the shop’s owner has no right to vacate [his tenant] or rent it to someone else, even if it were a waqf.”102 Originally, in the case of the “first tenant,” a specific sum, the khulū, is paid by the tenant to his landlord so that eviction becomes a difficult matter—unless, of course, the landlord pays back the khulū to his tenant, and whose value might increase over the years. Usually, however, it is a new tenant that refunds the khulū to his predecessor, and the sum is, of course, subject to readjustments over the years. The whole field of “exclusive possessions and privileges (akār, s. ukr)”103 became the subject of numerous fatāwā from the part of ‘Abdul-Ramān ‘Imādī, an eighteenth-century Damascus muftī. Basing his fatāwā on the previous works of anafī scholars such as Nasafī, he accepted the various practices of akār as part of the de facto status of “local customs (‘urf khāṣṣ)” that could be integrated within “the general framework of the law (al-ukm al-‘āmm)” even though analogy would not be applied in their case: thus, the legal device (īla) here, as in the case of salam or bay‘ al-wafā’, is to accept a common practice while bypassing analogy altogether and by limiting all possibilities for future opinions based on that specific case.104

  • 105 Ibn ‘Ābidīn, Radd, 4:522; Bāz, Shar, 1:248.

94A corollary category to the khulū is that of kadak (or gedik in Turkish) which basically relies on the same investment principles as the khulū, while being limited to the buildings and other materials added to the property.105 What is striking about the kadak cases is their complete similarity with buying and selling contracts.

[C 3-3] At [the court of] deputy judge [Ibrāhīm Efendi Usuwānī Zādah], ājj ‘Alī b. ājj ‘Umar Hāmish Nabkī purchased from ājj Muammad b. ājj Yūnis ‘Aiyyah—the legitimate representative of his brother’s three daughters, awwa, Maryam, and Āminah, daughters of ājj ‘Alī b. ājj Yūnis, and of their mother, daughter of ājj ‘Ubayd Allāh alabī, and whose right of representation has been confirmed, based [on two witnesses] who know them and [whose testimony] has been legally confirmed—without any duress or coercion and based on judicial approval, what is in the possession [milk] of his [four] clients, and transferred to them legally from the inheritance of their father [...]: namely, the entire kadak and khulū of the barber’s shop located in al-Kharāb, in maallat Tat al-Qutā, and part of the waqf of the mosque of Tat al-Qutā. [...] [All this] was sold for the price of one hundred piasters in genuine amīriyye silver, which was legally paid from the buyer to the representative of the sellers with his legal acknowledgment. [...]

95Then comes a sort of “annex” to the initial hearing in the form of a fictitious “litigation”:

  • 106 Yawm tārīkheh: “the day of that date.” Since there is only one date mentioned in the document, that (...)
  • 107 Damascus 266/1/1/18 Jumāda I 1224 (July 1, 1809).

All this took place after the seller, as representative of his [four] clients, requested from the buyer two piasters—[the equivalent of] a debt [dayn] that the defendant [the buyer] owned to [the four women, the plaintiffs]—in order to fulfill a request made by his clients to receive the debt on their behalf, and also to sell the aforementioned items to the buyer. [...] When [the seller] requested from [the buyer] the sum [of two piasters], the latter acknowledged [what he owed] but denied [his opponent’s right of representation; jaada al-wakāla: denied the representation] and asked him to furnish evidence. [The sellers’ representative] brought [to court] for testimony the same two witnesses as above. They both testified that the defendant knew his clients, and that, at that date,106 the clients appointed their representative to pursue the lawsuit against the defendant concerning the sum [the “debt”] and to sell [the khulu≠ and kadak] to the aforementioned buyer [the defendant] for the above price [...]. The judge then ruled that the act of representation was legal and ordered the defendant to pay the sum [to the plaintiff].107

  • 108 See Chapter5 infra.
  • 109 Ibn ‘Ābidīn, Radd, 5:152.
  • 110 Montanier and Samuel, Le contrat, 15.
  • 111 Montanier and Samuel, Le contrat, 11.

96The second part of the hearing comes chronologically first: that is, the plaintiff-seller (and representative of the four women) claims, prior to the purchase contract, that the defendant-buyer owes his clients a small sum of money—two piasters, or 2 percent of the value of the sold object (kadak and khulū)—described as a “debt” by the two parties. The defendant then accepts the plaintiff’s claim concerning the debt but denies his right to represent his clients. The plaintiff brings two witnesses and his right to represent is confirmed by the judge. I have argued elsewhere that the “debt” issue was a common procedure to establish the identity of a representative and his right to represent.108 Indeed, such procedures were so common that they were used as plug-in modules in different contexts: property transfers, litigations over the revenues of waqfs, contracts of sale, etc. What is probably common to all such cases is that they all involved a property transfer of some sort (either through a genuine act of buying and selling or through a fictitious litigation), and due to the key role played by the representative (if any) who delivers the property, his identity and right of representation needs to be confirmed once and for all through a judge’s ruling in such a way that would make it hard to revoke. But even though dayn is traditionally defined as “the māl that is one’s dhimma as a result of a contract, consumption, or loan,”109 its practical meaning comes probably closer to sixteenth-century English common law which took debt in its double meaning: as the lawsuit action resulting from an unpaid sum, and the amount of money that was due.110 This action for damages, that is, the debt, could be exercised against the buyer if he abstained from paying the promised price. The English general theory on contract is indeed more interested in the promise than in the person.111 What is of importance for our purposes is a similar notion of debt that emerges from a combination of discursive practices, between the fiqh and the sharī‘a courts. In fact, the debt issue which usually comes at the forefront of a number of different cases (C 3-3, 5-1 & 6-1), signals an action for a property transfer, on the one hand, and the debt itself on the other. However, in the unusual context of simulated litigations that were the norm throughout the nineteenth century, the “debt” ought to be read as the property or manfa‘a that will be transferred from plaintiff to defendant (or vice versa). The “debt” was then only a simulated language for a property transfer that took place within a fictitious litigation. The whole purpose was simply to create an irrevocable ruling for a transfer already agreed upon.

  • 112 The question remains open as to whether there were cases of kadak without a corresponding khulū, an (...)

97As to the core of the case itself (C 3-3), that of the transfer of the kadak and khulū to another proprietor, a striking similarity could indeed be detected with the previous case of a regular buying and selling (C 3-2). In fact, the two cases could hardly be differentiated from one another: both kadak and khulū, together or separately, are forms of property that were transferable like any other property. In this case, kadak and khulū were sold as a combination even though—logically—the khulū precedes the kadak: in fact, the former is an “investment” from the tenant that establishes his droit d’usage for a long period of time—at least as long as the original proprietor shows no desire to refund the investment; the kadak comes on the top of the khulū thus representing an additional investment in buildings, materials, and equipment. Is it possible then to end up with one without the other? It is indeed possible to purchase or transfer a khulū without a kadak whenever the property in question does not include any extra investments in the buildings and similar materials; however, it was unlikely for a kadak be sold without its corresponding khulū: What purpose did it serve to have the kadak and its corresponding khulū with two different owners? This seems to be indeed an illogical impossibility since the property already has an owner, and the “owner” of the combination of kadak and khulū is a de facto “tenant.”112 (As the following case below will show, there were cases where only the kadak was the subject of the sale on its own.) In our case here, the barber’s shop was part of a waqf compendium, hence the “original” (first) khulū was an investment paid by the tenant to the waqf’s beneficiaries. That gave the tenant long-term privileges—a long lease with a low rent—below the “average price.” Notice that in this case, nothing was mentioned concerning the waqf’s administrator and beneficiaries: their approval or disapproval did not seem to matter much, and with the change of “tenancy rights” from one person to another, the new “tenant”—who had just purchased the khulū and kadak—will simply have to pay the “low rent” to the waqf’s authorities; and even the payment of this rent might not be necessary, depending on the value of the khulū, of course.

  • 113 Ibn ‘Ābidīn, Radd, 4:502.
  • 114 Ibn ‘Ābidīn, Radd, 4:503.

98Both kadak and khulū were common examples of manāfi‘ which, in themselves, were milk and offered all the privileges of, say, privately owned properties. But even though as Ibn ‘Ābidīn says, al-manfa‘a milk lā māl,113or that al-manfa‘a ghayr māl,114 manāfi‘ such as the kadak and khulū represented, from a juristic point of view, exactly the same legal rights as any “thing” categorized as a māl mutaqawwam. Indeed, they were open to be purchased, sold, transferred, or inherited, and their contracts were like any regular contract of sale; the only reason for their classification as ghayr māl was because they cannot be “stored (yuddakhar)” like any other thing or substance. But this points more to an arbitrariness and confusion behind such classifications than a useful conceptualization. On the one hand, anafism does not look upon usufruct as a mere “right of use (droit d’usage)”; it is “more” than that, hence the source of confusion: in addition to a “right of use” of the property, this right is itself a “property”; but, on the other hand, this right-as-property is ghayr māl, and is therefore not granted all the advantages of the “things” exchanged on the market—even though the sharī‘a courts seem to look at some manāfi‘ as subject to the same type of contracts as any property sale.

  • 115 In addition to other popularly named utensils: tālī, qarmiyyah, and a fay jadīd (?).
  • 116 Damascus 266/2/3/2 Jumāda II 1224 (July 15, 1809).

[C 3-4] At [the majlis of] Mawlānā Sayyid Ibrāhīm Efendi Usuwānī Zādah, deputy judge of Sayyid afīd Zādah Muammad Amīn Efendi, judge in Damascus, ‘Aā’ b. ‘Ubayd Allah b. ‘Aā’ Allah came forward and purchased from ‘Uthmān Jalabī [...] what is in the possession of the latter, and was transferred to him by legal purchase, according to a document drafted in the majlis and emanating from Mawalānā whose signature appears above, deputy [judge] Ibrāhīm Efendi, previously the general judge of Damascus, and dated 19 Jumāda I 1220 [August 15, 1805], all the kadak of the shop located in downtown Damascus, in Sūq Bāb al-Qal‘a, and designed as a butcher’s shop. The kadak comprises the following: shelves, knives, a balance, [...],115 copper, and other manāfi‘ [...]. The shop is owned by Mawalānā Muammad Amīn Efendi al-Walī Zādah, with other associates [...]. The purchase price was 700 silver piasters [...].116

99The kadak was thus sold separately without the khulū: How was this possible and could a kadak be used without its corresponding khulū? In the butcher’s shop above what strikes most was the importance of the kadak in terms of the variety of the utensils, while the description of the kadak of the barber’s shop in the previous example (C 3-3) was much more limited. Furthermore, the two prices varied greatly (700 piasters for the butcher’s shop versus 100 piasters for the barber’s) due probably to the importance of the kadak’s material in the former; and the butcher’s shop, as was underscored in the document, was the property of an individual, while the other one belonged to a waqf compound. In the final analysis, it could well be that no khulū was paid to the butcher’s shop proprietor in the first place: the proprietor refused to be paid a khulū by his tenants on the grounds, say, that he did not need to tie himself up with long leases. (Notice that four years had elapsed between the two purchases of the same kadak, while in the previous case, the four women had inherited their kadak and khulū from their deceased father, and even though no specific date was mentioned, this is enough to suggest that the lease was long, at least long enough to pass from one generation to the next.) It therefore remains to be seen whether the combination of kadak and khulū was unique to waqfs, and whether the khulū played a similar role in waqfs to the marad. In fact, one of the reasons why the combination of khulū and kadak worked only for waqfs (and limited to the kadak in milks) might be that the beneficiaries of a waqf (and their administrator) would typically opt for an “investment” in their waqf, in the form of a khulū or marad, with a long lease and low rent, because such a solution would increase their revenues for a while, and thus solve some of the waqf’s financial problems, even though it would reduce it tremendously for future generations. An owner of a property, however, would find such an option—in the form of a lump sum “investment”—quite harmful: it might tie him for a long time with the same tenant and a low rent.

  • 117 Damascus 251/47/78/10 Muarram 1218 (May 2, 1803).
  • 118 This was the date of the seller’s own purchase of the kadak and khulū. The judge’s document certify (...)

100There were cases, however, in which the kadak and khulū corresponded with “rights” over a private property and were sold simultaneously, that is, as a combined unit. In one such case [C 3-5],117 the seller sold his combination of kadak and khulū of a butcher’s shop in Sūq al-Sannāniyah in Damascus which he apparently had been using since August 25, 1798.118 The document explicitly referred to the selling not only of the kadak and khulū, but also to the “utensils of the shop,” and each one of them, as in the previous case (C 3-4), was listed. This is indeed strange considering that those should typically be already part of the kadak and were normally not listed separately. The buyer, who made the purchase on behalf of his four minor male children, was from the notable family of Qudsī Zādah; his purchase, whose value was 700 silver piasters, came roughly five years after the seller had completed his own. The fact that the purchase was done on behalf of minor children shows that the combination of kadak and khulū, like any regular property, was an attractive solution to parents desirous to transfer properties to their children, rather than be limited by strict succession rules. This is definitely an indication on how much the combination of kadak and khulū was in itself a safe investment and enjoyed a similar status to milk in general (the only difference, of course, was that the kadak and khulū, once purchased, could not be leased to someone else): since the “real proprietor” (whose identity, unlike the previous case, was not even revealed) had no power to dislodge the “tenant” who purchased the “right of use” of the property, the latter became the de facto owner, and, in particular, if he had also purchased the khulū, kept the property on his own terms.

101Thus far our reading of the legal texts and the corresponding cases show that both kadak and khulū manifested similar—if not identical—legal rights as any other “thing” posed for exchange: that is, they enjoyed in practice the status of things categorized as māl mutaqawwam, even though the fiqh did not formally acknowledge such a status in their regard. This leads to another observation: many private properties did not seem to survive from their “rent (ijāra),” but rather from all manner of one-time investments in their infrastructure. The annual rent itself often ended up being the most insignificant part—this was particularly true of waqfs—and below what “experts” would have classified as the “average (fair) rent.” As an outcome of policies that benefited from the “vagueness” of the anafī category of “hire,” milk properties were, in a way probably similar to the mīrī and waqf, more of a handicap to the “economy” than a liberating force. In fact, investments such as the kadak and khulū duo were like “dead capital” of a property: not only did they restrict the access of those properties to a privileged group that could have afforded the extra investments, but by limiting the effects of what might have been “genuine rent,” they inhibited the circulation of capital in the form of “rent.”

  • 119 In modern Arabic, a more appropriate term would be māl marūd.
  • 120 Ibn ‘Ābidīn, Radd, 4:523.

102The marad (from raada, to appropriate) was another form of those “investments” in waqfs whose main purpose was to keep tenants with long-term contracts. And contrary to other types of “investments” analyzed above, the marad was not for sale, so that an investment from a tenant in a waqf property granting a long lease could not be purchased, together with its privileges, by another tenant. (Were marads open for inheritance?) Literally, a marad is an “appropriation,” money set aside for a specific purpose,119 but in the peculiar language of the sharī‘a courts, a marad was an “investment” that the tenant had to place in a waqf’s property because it was a necessary step that was unavoidable—basically, because of meager financial resources. The invested sum thus became a marad to the tenant, that is, it was “set aside” on his behalf so that a termination of the tenancy contract would have required, at the same time, a refund to the tenant. Needless to say, the whole judicial procedure was designed so that the waqf would not refund the investment, while accepting a low rent, below “average.” In short, the tenant, having been generous to the waqf, now behaved like a proprietor, and while the beneficiaries of the waqf won an immediate lump-sum, their immediate descendants, however, saw their revenues decline—because of the super-low rents—and had to devise, in turn, other means to render their waqf more productive. In short, and to quote our influential authority one more time, “The large sums of money paid [by the tenant to the previous tenant or landlord] do not benefit the waqf in any way and only contribute in damaging it.”120

  • 121 Ibn ‘Ābidīn, Radd, 4:522-523.

103Even though, technically speaking, the courts kept a different language between the kadak/khulū and the marad, the final purpose behind all such investments was strikingly similar: to create long-term leases for the category of tenants that could afford it; and, metaphorically, though not legally, the property becomes theirs. Such procedures did not originate as the result of an internal development in anafī doctrine itself, but were the outcome of customary practices that were so common to the point that there was no option left but to accommodate them. In terms of reasoning, therefore, they did not conform to the basic rule of analogy, and, in turn, no other rule could be derived from them by analogy. They look indeed like patches affixed to the system rather than substantive transformations that changed the way the legal system thought of itself: “Some have issued fatwās legalizing the khulū on the basis that it is the equivalent [bi-muqābalat] of the money paid [by the tenant] to the administrator [of the waqf] or landlord. The proprietor of the shop loses therefore his rights to evict [ikhrāj] [his tenant] or lease it to someone else. That was legalized in fatwās out of necessity [li-l-arūra] by analogy [qiyās-an] to the sale of real property with the right of redemption [bay‘ al-wafā’] that the late jurists recognized [ta‘ārafa-hu al-muta’akhkhirūn] as a legal device against [or as a way to evade] the loan with interest [itiyāl-an ‘ala al-ribā].”121 Analogy should not be considered strongly here as it was more a question of “similarity (shubha)” between distinct issues than of applying the traditional rule of analogy.

  • 122 It is not clear what the roots of this term are.
  • 123 Ibn ‘Ābidīn, Radd, 4:522.

104As some of the above texts stated (and the Majalla underscored as an explicit rule), many of the commonly accepted “economic” legal categories, in particular those derived from “rent” and “interest loan,” were acknowledged with prima facie considerations with little or no relation to analogy. In the case of rent in particular, jurists were always faced with the problem of associating “hire” with milk (that is, manfa‘a as milk), on the one hand, and with the labor invested by the tenant on the property, on the other: “When the tenant builds or plants on the waqf’s land, he becomes eligible for a right of decision [aqq al-qarār], and to [keep his rent based on] the average price: this is known as the kirdār.122 Our scholars have declared that the owner of a kirdār has a right of decision. In fact, when the farmer and tenant [tenant-farmer] create on the land a building or plantations or labor on the soil [kabs-an bi-l-turāb: a pressuring of the soil] with the authorization of the waqf’s founder or administrator, they are then eligible for keeping [the lease] [tabqa fī yadi-hi]. And it could be said that the money paid [by the tenant] as khulū to the waqf’s founder, and which the founder used in building the waqf, is similar [shabīha] to working on land with its soil [kabs al-ar bi-l-turāb]: [the tenant] thus becomes eligible for a right of decision and his lease does not expire as long as he is paying the average [fair] rent [ajr al-mithl].”123 What is of value in this passage is the association—based on the notion of “similarity”—between labor invested on a waqf’s soil and the khulū invested in a waqf (or the kadak for that matter): somehow the aqq al-manfa‘a translates into a aqq al-qarār, which in both cases translates into long leases and a de facto “ownership of the lease.” The question, therefore, were lands in Bilād al-Shām mīrī or milk?, cannot find a proper answer unless we realize that because of the problematic nature of “rent” for all kinds of lands (even in urban areas), “ownership” was more the milk of the “usufruct” (tamlīk al-manfa‘a) than of the land or buildings themselves. It is no wonder then that Ibn ‘Ābidīn included his digressions on the khulū, kadak, marad, and the like, in the very same chapter devoted basically to contracts of sale (buyū‘); they all were, in the final analysis, contracts of sale, even though their official title was not.

  • 124 Ibn ‘Ābidīn, Radd, 4:523.
  • 125 Bāz, Shar, 1:247-248.
  • 126 Bāz, Shar, 1:248.

105In the case of the marad, for example, waqfs should be able to maintain themselves from their own revenues. In principle, therefore, investments from tenants or other parties for the sole purpose of imposing long leases and low rents should be illegal: “What the administrator receives [from the tenant] should be invested in the building of the waqf, so that it becomes part of the process of its habilitation [arīq-an ila ‘imārati-hi]. And if by paying this needed sum on the building it turns out that there is no one willing to lease it with the average rent [ujrat al-mithl], then it is legal to inhabit the place out of necessity [at a price] below the average rent—and this is called in our times the marad, as we introduced it in [the chapter] on waqfs.”124 What the language of such texts hides, however, together with that of the court documents, is that such investments were quite often on a voluntary basis, as a means for the waqf to beef up its revenues for a time, even though it meant more harm in the long run (lower rents). The texts also debated the issue of the rent to be paid by the tenant once the marad investment was completed: Should it be less than, equal to, or more than the “average rent” once improvements were added to the edifices? Even though the courts were plagued by proprietors and waqf administrators accepting a lower-than-usual “average rent,” either because the tenant invested in the property or because no one else accepted the higher rent, the anafī texts were nevertheless uncomfortable on the issue of pricing on renovated properties. On the one hand, “if a judge or administrator authorized a tenant to build on the waqf’s property, so that [the investment] becomes a debt [dayn] on the waqf, and there is nothing left over from its rent [lā fāil min ray‘i-hi], [the debt] is then referred to as a marad. The building belongs to the waqf, so that if the administrator wishes to evict [the tenant], he should first refund him with what he invested in the building. It is no secret therefore that the [the administrator] pushes for an increase in the average price [ajr al-mithl] due to the improved building conditions. The tenant should therefore pay the average rent, whatever this amounts to, before and after the building has been completed, as it was suggested in al-Fatāwā al-Khayriyya [of Khayr al-Dīn al-Ramlī].”125 But, on the other hand, “in the waqf al-āmidiyyah [?], it was established that a waqf’s tenancy contract below the average price is possible whenever there is a problem [with the waqf] or it became indebted. This is in accordance with what we said because the marad is a debt on the waqf that ends up lowering the rent.”126 The marad acted therefore as a quasi-“debt,” at least from the point of view of the late judicial texts of the second half of the nineteenth century, and tenants expected longer and lower rents because of their investments, even though such a decrease was not supposed to be a part of the investment.

  • 127 aydar, Durar, vol.1, commentary on article 158.
  • 128 The formal acceptance of such notions as istinā‘, salam, and bay‘ al-wafā’, was the result of long (...)

106But what kind of debt was it exactly? Was the marad a “debt” that acted like a loan? And what about a court’s “fictitious debt”? How did it relate to a “real debt”? Several of our cases had plugged-in “fictitious debts,” one of those court devices to identify a client’s representative and his right of representation, on the one hand, and to simulate a litigation on the other. anafī manuals often describe debt as an “aphoristic thing (māl ikmī)”: it is indeed a māl because it denotes a “thing”—whether money or a substance in kind that could be reduced to a common measure (al-mithl)—that is exchangeable. Yet, it remains limited to its “gnomic” dimension because it is not a “real thing (māl aqīqī)”: to be “real” it should have the capacity of being stored (iddikhār), like any māl mutaqawwam. But what saves a debt from the category of māl ghayr mutaqawwam—all those things that cannot be “stored”—is the awareness in the creditor’s mind that once he will receive his money back, he will be able to store it and save it.127 In other words, the existence of the debt is a virtual reality that becomes real once the debt is fully paid and back in the hands of its lender. By limiting “exchangeable things” to those that can be stored—or, generally, to tangible, perceptible things—to the māl mutaqawwamanafism demonstrates an unease with the “virtual.” It is the abstract character of such transactions that poses a problem to jurists; and whenever the purchased object was not available at the moment of the contract, the jurists classified it as nonexistent (ma‘dūm), thus creating the possibility of an illicit transaction.128 That is why the debt is among the few contracts to create an obligation, while ordinary sales, which assume simultaneous exchange, do not. The marad then, as a debt, creates a long-term obligation, but it’s the waqf that feels obligated towards its tenant.

107Unlike the khulū and kadak cases, those with a marad were always structured around a false litigation, or a procedural fiction. The plaintiff-tenant is opposed to the defendant-administrator of the waqf, but that did not render such cases unpredictable; on the contrary, even though they turned more complex than others involving a quasi-debt, they ended up as predictable as any combination of a khulū and kadak case. In fact, litigations for a marad were well construed procedural fictions which transformed the hesitations and inconsistencies of the jurists (not to mention their silences when it came to procedural matters) on such “debts” into routinized operations within the expertise of the courts. Their aim was threefold: 1) establish that the tenant’s investment in the waqf was legal and approved as such by the waqf’s authorities; 2) the investment was then to be accepted as a “debt” that the waqf owed to the tenant; finally, 3) because of the money the waqf owed to the tenant, the latter was usually granted special privileges, known as aqq al-qarār, and which commonly translated into a long-term lease. However, all three aims were first denied and challenged one-by-one, then acknowledged through witnessing, prior to the judge’s ruling approving the investment, and, at times, the low rent. The fictitious litigation thus helped in establishing the threefold nature of the tenant’s investment on firm grounds in a way that would be hard to revoke; the litigation and the judge’s ruling thus made it harder for future generations of beneficiaries to deny the tenant’s deal with the waqf’s administration.

  • 129 Damascus 266/37/47/18 Jumāda II 1224 (July 31, 1809).

108In one such case, the plaintiff was the tenant and the defendant was the waqf’s administrator—the routine form of a marad litigation.129 The defendant was the administrator of his grandfather’s waqf based on a judge’s document dated January 7, 1795. The home, located in Damascus intra muros, and the object of the litigation, was subjected, according to the plaintiff, to a process of complete renovation, and this, after the defendant’s formal approval.

[C 3-6] An authorization was granted from defendant to plaintiff, two months earlier, in order to build and repair anything that the latter’s home might urgently need. The costs should be at the expense of [the plaintiff] and everything he does will be considered as an appropriation for him upon the home and its waqf [marad-an lahu ‘ala al-dār wa-jihat waqfi-hā]. Based on that agreement, the plaintiff did several things to the building such as a complete renovation of the tiled floor, the water pipes, etc., thus spending in equipment and wages a total of 1,861 piasters in pure silver of legal expenses from his own money, and with the purpose of benefiting [al-rujū‘] the house and its waqf. Both the building and spending [on repairs] were absolutely necessary for the proper use of the house and because no money was available with the waqf’s [authorities] to cover the spending. Furthermore, there was no one willing to lease [the place] with a rent that would have covered the spending [on renovations], and the investment is a common one [maraf al-mithl] that does not constitute a donation [tabarru‘] to the waqf.

109Thus far, that’s the plaintiff’s “own narrative” which recapitulates the main characteristics of a marad investment: basically, an investment—not a “donation”—for repairing and ameliorating the status of the property; an authorization was first granted by the administrator; and the point was underscored that the waqf’s administration could not have afforded such expenditures on its own and that it was not possible to lease the place with a higher rent that would have gradually covered all expenses. In short, the case was made that all such measures were unavoidable: the tenant had no other choice but to spend from his own pocket and the waqf could not help but accept—the perfect match. From this point on the defendant will question each one of the above claims—a ritual that will help in their corroboration once and for all.

110When the defendant was questioned on the plaintiff’s claims, he acknowledged the authorization (al-idhn) but denied that the building and other spending were necessary and beneficial to the waqf. Two witnesses were brought and repeated verbatim the plaintiff’s claims. As already noted, witnesses, unless directly challenged by the other party (denial of their testimony, etc.), were not supposed to bring anything new in terms of content; and their testimonies, as summarized and paraphrased by the court’s language, were a mere repetition of their party’s claim.

111The waqf’s administrator (defendant) then drew the court’s attention to the fact that even though the tenant-plaintiff received his approval to proceed with the renovations, he did not receive a legal approval from the chief judge. In fact, and to complicate things even further, the judge in this case was a anbalite, opening the possibility for a rejection of the ruling by a higher anafī judge. The anbalite drafted a ruling acknowledging the necessity of the restorations, the amount spent, its beneficial and valuable side, and the fact that it became a marad. Even though the ruling was drafted by a non-anafī judge, it did not constitute what was technically known as “a ruling of a judge outside his school (ukm al-qāī bi-ghayr madhhabi-hi).” In fact, the idea here was precisely to have a anbalī judge accept a type of lease that was only acknowledged in his own school, only to let a anafī finalize the approval. Perhaps the most typical of such swapping-of-judges was for long leases: for the anafīs, a lease was not to exceed a three-year period. In order to secure longer leases, the tenant would proceed to a Shāfi‘ī judge, who would ratify the longer bail; a simulated complaint would then point out that the lease was only approved by a Shāfi‘ī, thus prompting a final ratification by a anafī. In marads, such détours proved to be overall unnecessary since cases were held right away by anafīs and worked well without extra-judicial needs. In our case, the anbalī judge made the point that he approved the authorization on a personal basis without seeking a chief judge’s opinion; that, he claimed, was because “the private jurisdiction is stronger than a more general one [al-wilāya al-khāṣṣa aqwa mina al-wilāya al-‘āmma].” In other words, judges had the power to rule based on the opinions of their own school even if it turned out that it differed from other school opinions. But the plaintiff still needed the final approval of a anafī judge, which he did, and finalized his lawsuit with a legitimate marad and a long bail: the procedure here, as before, took place in the form of a denial, on the part of the administrator-defendant, of the validity of a anbalī ruling. The anafī deputy judge, besides approving the plaintiff’s claims, appointed, at the request of the administrator, a team of “experts” consisting of his own scribe, a plumber, and a Christian builder (mi‘mār sulānī), to check upon the work done on the property. They all then testified upon the veracity of the plaintiff’s claims.

  • 130 Damascus 266/30/37/13 Jumāda II 1224 (July 26, 1809).

112The great majority of marads were structured along the same line of arguments. Their purpose was simple: to guarantee that the tenant gets his legal rights for the invested sums in the waqf’s property; and that, with the connivance of the waqf’s administrator who as defendant plays the devil’s advocate: he denies every claim the plaintiff made—except for the alleged “repairs,” but questions their usefulness—so that the latter is left with the only option common in all Ottoman courts—furnish evidence through witnessing. Obviously, not all marads were structured in this straightforward manner. In another case [C 3-7], the starting point was precisely where the previous case (C 3-6) had ended. A judge appoints a team of “experts” similar to the one encountered above in order to inspect a home in downtown Damascus included in a waqf compound.130 The team did not seem involved in any of the factual information provided in the document, specifically on the home itself, or more generally on the modalities of the waqf. Even though introduced at the beginning, the team’s expertise will be needed only towards the end—to check the status of the building. A description of the house and its location follows the “experts”’s names and professions, and a list of beneficiaries comes next. The founder of the waqf, ājj ‘Abdul-Ramān al-Qawwāf, erected it, based on an act dated February 1, 1782, first for himself (he thus was in his lifetime the sole recipient of the revenues and self-appointed administrator), and then, after his death, for his wife who was to be the sole administrator and recipient. Then, after the wife, the revenues were to be divided fifty-fifty between the prayer callers of the Umayyād mosque (and to be administered by their own administrator) and the ma (“shrine”) and waqf of the deceased Shaykh ‘Abdul-alīm ‘Ajlūnī, which should have had its own administrator.

113Thus far, the first part of the document described the waqf, and its successive lines of beneficiaries and administrators, while the second part detailed the “operative facts” per se. There were four plaintiffs: the first two were cousins, both administrators of the waqf of the prayer callers, a post officially granted by sultanic decree (barā’at), and both had also been appointed by the judge presiding over this case, at the date of the hearing, as bookkeeping administrators (nuẓẓār asbiyyah) to the Qawwāf waqf; the third and fourth were the ‘Ajlūnī brothers, sons of the deceased Shaykh. So the plaintiffs as a group were the third line of beneficiaries, and were not supposed to have benefited yet from any of the revenues, and their target was the present administrator, Zaynab bt. Mutafa Qawwāf, wife of the deceased founder and the only beneficiary in the second line (the first was the founder himself); the second defendant was Zaynab’s nephew, Salīm b. Muammad ayrafī.

  • 131 On 19 Jumāda I 1224 (July 2, 1809).

114The plaintiffs claimed that less than a month prior to the present hearing,131 Zaynab had acknowledged her nephew’s marad amounting to 3,000 piasters; but there was no indication, however, of any additional work.

The amount of money [allegedly] spent on building has no existence, and the second defendant, Salīm [ayrafī], did not construct anything in the house: all this is therefore pure collusion [tawāi-yan] on the part of the first defendant-administrator. The rent [ujra] of the house is equivalent to 200 silver piasters a year, and the [allegedly] invested money on the building does not conform to anything legal [lam yuāraf li-maallih al-shar‘ī]. When [the team of “experts”] was sent to the location to seek the truth, they realized that there is no [new] building in the house in the first place.

115When the judge was informed by the team of “experts” on the truth of the matter, he accepted their testimony and stripped the second defendant of his marad’s right. The primary defendant then addressed the plaintiffs to furnish evidence regarding the value of “the average rent (ujrat al-mithl)”; the plaintiffs had three witnesses who testified that the house’s rent value should be 200 silver piasters a year. Having accepted their testimony, the judge ruled that the present administrator “has no right in leasing [the house] except [for the agreed upon] average rent, with the knowledge of the bookkeepers.”

116Even though this case differs greatly from the more common pool of marads as exemplified in the previous one (C 3-6), it nevertheless exemplifies a pattern—by being an exception to the rule—that points to the very nature of the marad: an investment from the tenant that allows her a long lease at a lower price—on the basis that no other tenant accepted a higher rent. In this case, the third line of beneficiaries, which were supposed to be in charge after the death of the primary defendant, reacted promptly to the false claims of a marad investment. Interestingly, and unlike anything encountered thus far, when it came to knowing whether any work had been effectively completed on the property, the judge appointed a team of “experts” who inspected the place, rather than relying on traditional witnessing. Since that kind of expertise was relied upon in the two marads analyzed thus far, it is quite possible that in cases that manifest a “clear-cut” aspect and in which a degree of “expertise” could be helpful, the judge would opt for that kind of “testimony”—one based on a degree of “expertise” and an inspection of the place prior to the hearing—rather than, say, request from one (or both) parties to furnish evidence on their own. The idea of “expertise,” however, draws a parallel to that of traditional witnessing: “experts” typically gave “testimonies” in the same way that regular witnesses normally did: they neither drafted cosigned detailed reports nor memos describing the status of the property; instead, they ended up with a no-oath-collective-testimony not much different from a more regular testimony—the statements were a repetition of the claims put forward by one of the parties rather than based on independent observations and opinions.

117Another issue that comes forward is that of “the average rent.” That was the “price” that was usually in opposition to the price that the seller or lessor thinks was the “real value” of his commodity or leased property; but, as discussed earlier, there was no conceptual apparatus that linked all these “values” together and assessed them in terms of tangible forces on the market. What the court records show, however, was that “the average rent/price” was nothing more than “the market price.” The other price, real or nominal, apparently did not play much of a role. In the specific case of marads, “the average (real and market) rent” implied, on the one hand, the same function as any other rent, whether private or waqf, in that a market price imposed itself in the final analysis; but, on the other hand, because of a marad-investment claimed by the tenant, and which, prior to court approval, ended up as a debt on the waqf, the value of the average rent becomes controversial.

  • 132 Damascus 266/13/16/5 Rabī‘ II 1224 (May 20, 1809). The defendant’s position of administrator was ap (...)

118In some marads the investment “replaced” the rent per se: once the marad has been legally acknowledged, the invested costs are then “deducted from the rent.” In one such case [C 3-8], the defendant was the administrator of her father’s waqf and had her post certified by the anbalī judge presiding over the case only a couple of weeks prior to the hearing.132 The plaintiff claimed that the defendant-administrator had given her approval in 1789 to renovate the home subject to the litigation. (It remains unclear what the defendant’s title was at the time, considering that her administrative post was only a recent appointment.). The original agreement, according to the plaintiff, was that,

in 1204 [1789], the defendant gave her approval to the plaintiff to proceed with his renovations in the house, and to spend whatever is needed; and whatever was spent would be a marad on his behalf [at the expense] of the waqf [in such a way that the amount] would be deducted from the rent [yanqai‘ dhalika min ujrati-ha: the amount will be “cut” from the rent].

119The total cost was 2,100 piasters until 1214/1799 for the few listed renovations (kitchen, water pipes, external facades, the īwān, the murabba‘, etc.). When the defendant’s representative was requested to respond to the plaintiff’s claims, he acknowledged the permit granted by his client, but he denied that the renovations were necessary and beneficial for the waqf. Which meant that the plaintiff had now to furnish evidence, which he eventually did through witnesses. When the judge accepted all testimonies and ruled in favor of the plaintiff, there was the lingering problem of the non-compatible ruling of the anbalī judge. So, we’re back to more procedural fictions: first, a claim by the defendant that the ruling cannot stand in its present form because the judge was not from the same school as the chief judge (basically, the quid pro quo between anbalites and anafites went through a two-step procedure: a anbalī approves first that the invested amount is due on the waqf; then, a anafī judge having mutatis mutandis accepted his predecessor’s ruling and adds, in his own final ruling, that the renovations and other new buildings were necessary); the anbalī judge presiding over the case clarifies that his ruling is limited to his own school; and a anafī brings the whole thing to its happy conclusion.

120The marad was clearly a well rooted technique throughout the nineteenth century, and at least as important and as widespread as the combination of khulū and kadak. But were they all related? To be sure, they all were considered as representing some kind of “investment” on the part of the tenant, and upon ending his or her contract, the tenant should be refunded for having invested in the property. This “refund” did not have to originate from the proprietor, but it could well have been from another tenant. Such notions become “proprietary” on a de facto basis. Thus, while khulūs and kadaks were legally purchased like any other commodity without the interference of the original proprietor, the marad, because of its status as an investment in an inalienable property, was more looked upon as a “debt.” In reality, however, the khulū was very similar to the marad since both represented investments in the leased property: this left the tenant with enormous privileges and secured him a long-term lease; however, while the khulū and its corresponding kadak were transferable, the marad was not. (What happens when the tenant dies and the waqf still owes him his marad? In principle, since this was a “debt,” it should be listed, in the succession of the deceased, among the debts that should be refunded to the heirs. More empirical studies need to be completed to check whether, in such cases, at least one of the heirs claimed tenancy rights until the marad was completely refunded, that is, the tenancy contract of his predecessor and deceased relative became transferable.)

  • 133 Gabriel Baer, “The Dismemberment of Awqāf in Early 19th Century Jerusalem,” Asian and African Studi (...)

121Gabriel Baer, who noticed earlier than others the phenomenon of marad (which he refers to as murad) in the courts of nineteenth-century Jerusalem, argued that such social and legal practices were inevitably tied to the upper classes of society, because they were the ones who controlled the waqfs as a whole, and it became more beneficial for them to modify the rules of the game that rendered waqf properties into stagnant investments. Baer described this process as one of “dismemberment,” meaning that the property either loses its original form as set by the founder, or ends up partially “privatized.”133

  • 134 Ibn ‘Ābidīn, Radd, 4:523-524.

122Be that as it may, limiting such practices to a class (which needs more empirical investigation, in particular for the khulūs, which seem even more ubiquitous than the marads) does not necessarily help in following the legal and economic logic of such transactions. Moreover, Baer did not pose the issue of a possible similarity between the khulū and marad, in particular regarding their role as economic transactions whose contractual nature might have been the outcome of impasses in anafism. Both khulū and marad should be primarily looked upon in terms of the anafī discursive practices, which were not willing to equate the status of khulū with that of the other a‘yān: “since the khulū is not a tangible thing [‘ayn-an qā’imah], then its selling is invalid.”134 On what basis then were the khulū and its corresponding kadak “sold” in the courts? Everything seems to suggest, based on the realities of the courts, that the khulū and kadak enjoyed the full status of māl mutaqawwam, a reality that the fiqh manuals kept denying (the marad, which was not transferable but legalized as a debt, did not pose any problem as to whether it was a māl or not). On the other hand, even though the fiqh manuals did not subsume khulū and kadak, among others, under the abstract category of māl mutaqawwam, and thus made them eligible for exchange, they had to be associated, in order to be transferred, with the notion of farāgh. When an occupied space or position (waīfa) has been “vacated” in order to transfer them to another occupant; and, in the meantime, this other occupant owes the previous one a specific amount of money—khulū, kadak, mashadd maskeh, etc.—for having transferred to him this right of using the space, then that was legally a farāgh. The notion of farāgh is associated with that of “vacating a position (farāgh al-waīfa),” such as that of the timāriot, or of the multazim. In other words, in the same way, that the occupancy of some positions (in particular public ones) was looked upon as a “privilege,” primarily because they were not open to everyone and were reserved to the happy few, the occupancy of space was also a privilege, so that when an occupant concedes this precious space to another tenant, a compensation should be given to the former.

  • 135 Ibn ‘Ābidīn, Radd, 4:524.
  • 136 Ibn ‘Ābidīn, Radd, 4:524.

123Consider for example what was known as the mashadd maskeh, a sort of “right of cultivation” of the land on the basis that any tenant-laborer has “invested in the soil” and therefore enjoys privileged rights as tenant. In many respects therefore it manifests similarities with the other types of privileges under contract encountered thus far: it was, like the khulū and marad, a form of investment that transformed the tenant into a privileged entity. But, the jurists, however, did not necessarily see things that way: for one thing, they could have subsumed all these types of investments under a more general category of, say, “transferable investments,” but they didn’t. Instead, they worked each one separately and independently of the other, and ended up with several shades of gray instead of a more convenient “general type.” In the case of the mashadd maskeh, as for the other types of investments, “it cannot be sold because it is a māl ghayr mutaqawwam. So if its possessor [āibu-hā] wishes to transfer it to someone else [al-nuzūl ‘an-hā: drop it] for a counter-value [bi-‘iwa], then the [normal] procedure would be to go through a farāgh, in a way similar to transferring positions [ka-l-nuzūl ‘an al-waā’if].”135 The rationale is therefore that of “similarity”—analogy would be too strong a word—with at least the combination of khulū and kadak precisely because both constituted a “transfer of privileges” from one tenant to the other. But the maskeh, however, ends up disappointingly as another variant. First, “it has [specific] regulations based on sultanic orders from the fatwās of the ‘ulamā’ of the Ottoman state”; then, second, “it cannot be inherited. But it goes for [tuwajjah] the son capable of handling it, but not for the daughter; and when no son is available, then it goes to the daughter; and if she does not exist, then it is transferred to the father’s brother [uncle]; and if he does not exist, then it is to the sister living in the village; and if she does not exist, then it is for the mother.”136 The transfer of the maskeh, therefore, follows specific rules unknown to either khulū or marad, and such rules were apparently not decided by jurists on their own, but were also the result of bureaucratic legislation. So the maskeh, because of its link with land production, did not conform to the same rules as the urban khulū even though logically it should have. Which leaves us with the following problem: Should such notions as khulū, kadak, mashadd maskeh, and to a certain extent, the marad, despite the jurists’ resistance to such a categorization, all fall under the broad category of māl mutaqawwam? Or should they be classified as a‘yān, especially since their “exchange” does seem to suggest an implicit status of māl to all of them? Or, as the logic of legal history would suggest, they would all be more suitable under the broad category of tamlīk al-manfa‘a, and hence within a status that globally “opposes” them to all “tangible things (a‘yān)”? From the point of view of legal history, it would make more sense to classify “investments” such as the khulū, kadak, marad, and mashadd maskeh, as tamlīk manāfi‘: they all achieved, in one way or another, the status of “private property (milk)”; this is certainly true for both kadak and khulū, but probably less so for the marad and maskeh because of the restrictions imposed upon transferring them to other beneficiaries. Still, the idea here is that there was a milk category of intangible things—or of things that were “possessed” with a “right of use”—as opposed to the property of tangible things (tamlīk al-a‘yān). However, following anafī doctrine, they might also all follow the dubious category of māl ghayr mutaqawwam. In this way, and still according to the canon, this category comprises all “properties” (māl) not eligible for sale; but, for the type of “investments” discussed earlier, that handicap could be transcended thanks to the process known as farāgh, which “frees” the property from its actual tenant, and after payment of a “counter-value,” it is then transferred to another tenant. In hindsight, therefore, those “non-exchangeable-things” achieved the status of exchangeable things through the legal device of farāgh. (Even though in the court procedures, one did not have to go through the ritual of farāgh to sell his khulū, kadak, or mashadd maskeh; farāgh was thus simply another fiction.) The intermediary step of farāgh, therefore, is more than ambiguous: it transforms many “tenancy rights” into “exchangeable properties” without, however, giving them the full status of māl mutaqawwam. In fact, “tenancy rights” fell under this ambiguous category of tamlīk al-manāfi‘—a milk that did not follow the traditional categories of tamlīk. The system lacked the means for competitive rents, that is, whose values would have been assessed based on their market value. What the system created instead was a batch of “status contracts,” to which the entry meant a prima facie lump-sum payment with quasi-ownership rights.

124In the court procedures, “tenancy rights” were, in one way or another, associated with the notion of “equitable rent (ujrat al-mithl).” The reason why the value of rent had to be brought up either as a major or corollary argument varied from case to case. In marads, for example, because the tenant’s expenditure was to become a claim in his favor on the waqf property, the option was presented, at times, for the waqf to pay its “debt” to the tenant by deducting the rent on a monthly or yearly basis: the debt was thus paid into monthly or yearly installments; but the rent could also have remained the same, and the tenant would keep his contract until the debt was fully refunded. Another possibility was to claim that the rent might be low, but this was only because no other tenant accepted a higher rent: this was another legal device to keep the present tenant because, had the property been leased to another tenant, the waqf would be forced to refund the marad immediately. Still another possibility was to create a controversy around the equitable rent: the whole case would center on the sole issue of whether the rent was fair or not. This was whenever the contract was signed on behalf of a minor, or, as one of the cases outlined above shows, there was already a controversy over the marad—how legitimate it was—that ipso facto extended to the equitable rent. However, establishing what the equitable rent should be was not an expertise area since only the usual witnesses could testify that this rent was indeed equitable.

125A closely related, if not identical, category was that of “equitable price (thaman al-mithl).” Basically, the two categories of equitable (or average) price and rent were very similar, except that the legal area of the former was contracts of sale while the latter was limited to tenancy contracts; but in both, “value” was not determined by an expertise of any kind—witnesses were enough. But because contracts of sale were not surrounded by the ambiguities of tenancy contracts—some were indeed tenancy contracts in their form only, while at bottom they were contracts of sale of “tenancy rights”—their equitable price was much simpler: indeed, in what seems to be additional procedural fictions, the only aim was to prove that the price was just and fair. Typically, a case would begin with the usual description of the contract of sale and the sum of money involved; then, in a second part, the price itself becomes the subject of controversy, and the seller will have to prove that her property was sold at the equitable price. The case would finally be sealed with a ruling, thus making the controversial equitable price more acceptable. As with any ruling, the purpose was to force a decision that was hard to revoke. This was in particular useful in situations in which guardians were representing minors, or that involved an exchange of properties, and the like: once the minor matures, she might perceive that the equitable price was lower than what it should be; this would place the representative-guardian in a suspicious and awkward position and the minor could reopen the case.

  • 137 Damascus 266/17/21/12 Jumāda II 1224 (July 25, 1809).
  • 138 Probably a variation from bā’ikat-un; both being ‘āmmiyya language.
  • 139 A final note in the document asserts thathe entire above hearing took place after a “debt” was sett (...)

126In one such case [C 3-9], a contract of sale was concluded between, on each side, a pair of guardians responsible either for the properties of their own sons and daughters or of other minors.137 The sold property, located in a village in the vicinity of Damascus, consisted of an ornamental arcade (bāykeh)138 and a straw-stack (matban), whose value was estimated at ninety silver piasters. In the second part of the hearing, a fictitious litigation takes place: the first seller claimed against the two buyers that the contract of sale was not in favor of the minor girl whom she was representing because “the price is below the equitable price and this is unfavorable for the minor and does not represent any advantage for her.” The plaintiff-seller then requested from the defendants-buyers “to raise their hands (raf‘ yad)” over the fraction of property belonging to the minor in lieu of a compensation. The buyers denied that the price was below what was considered as equitable, and therefore, from their point of view, the transaction was indeed profitable to the minor. Since the plaintiff rebuked all claims and was unable herself to prove in claim way her own, the defendants were left with the usual option: witnesses who testified that the property was sold at the equitable price.139

  • 140 The rights of guardianship and representation were granted by the same judge presiding over the tri (...)
  • 141 Damascus 266/18/22/12 Jumāda II 1224 (July 25, 1809).
  • 142 In this case too, a fictitious “debt” establishes the representatives’ identities and their legal r (...)

127In another similar case [C 3-10], the contract was between a representative of a mature buyer, and two guardians representing140 the interests of their minor daughters.141 The purchased property, in a village in the vicinity of Damascus and consisting of a walled garden (awsh), was inherited by the two minors from their father; they sold it for 120 piasters. What then follows is identical to the previous case (C 3-9): the two sellers metamorphose into plaintiffs and claim that the sale contract and its corresponding equitable price were unfair to the minors in that it was barely enough to cover their already precarious livelihoods; the buyer, having denied those allegations, and, upon the plaintiffs’ insistence, furnishes evidence through witnessing.142

  • 143 See below Chapter11.

128Many of the cases that centered around the notion of equitable rent/price were construed around procedural fictions similar to those encountered in other situations: property transfers, debts, distribution of a waqf’s revenues, marads, and even crimes,143 to name but a few among those included in this study. Considering that the largest number of cases were either sale or tenancy contracts, fictitious litigations, whose volume comes next to that of regular contractual documents, could be looked upon as more complex sale or tenancy contracts (or their equivalent property transfers). In fact, the outcome of many of those litigations was, in the final analysis, either a contract of sale or a lease. But if they rarely stated their case openly, it is because many of these notions (khulū, kadak, marad, etc.) grew out of customary practices and imposed themselves on the judiciary; several legal devices had to be created in order to accommodate them, but that was not enough for the courts to openly deal with those contracts; hence the fictitious litigations, ambiguities, and disguises. In the specific case of documents centering around the so-called equitable price, their purpose was simple: fix the price once and for all.

The benefits of sharecropping

  • 144 Bāz, Shar, 2:759-760.

129A related category of tenancy contracts was one that assumed an “association” on the produce between tenant and owner, which added to the rent already paid by the tenant. By far, the two most predominant types of sharecropping contracts were the muzāra‘a and musāqāt, both which could be broadly defined as tenancy contracts of agricultural lands in which the owner receives a percentage of the produce in addition to the rent. The muzāra‘a could be looked upon as a broader category than the musāqāt because the latter was limited to plantations only. The muzāra‘a is defined in the Majalla (article 1431) as a “form of association (sharika)” over lands on the one hand, and labor (al-‘amal) on the other. Association thus implies a relationship between land and labor rather than, say, between lessor and tenant-farmer (lessee). Such a distinction is essential because it determines in its own right which elements are to be legally classified under “land” or “labor.” Thus, considering that among the “foundations (arkān; s. rukn)” of muzāra‘a are land, seeds, labor, and cows, these “elements” do not work in any combination. Actually, there are only three possible valid (jā’iz) combinations:144


Tenant-farmer (lessee)

land and seeds

labor and cows

land, cows, and seeds



labor, cows, and seeds

130Even though, from the point of view of legal texts, the two parties are not distinguished as “lessor” and “tenant-farmer,” it makes more sense to look at them as such. In fact, the following article (1432) associates the muzāra‘a, like any contract of sale for that matter, with the notions of “offer and acceptance (ījāb wa-qabūl)” on the basis of a contract between landowner and tenant-farmer. As to the logic behind the three tabulated combinations above, cows and seeds are seen as “extensions” either to labor or to land and cannot therefore stand on their own in any contractual form. Indeed, the cows are like a “machinery (ālat)” and are an “extension” to the laborer’s body, in a way very similar to the needle of the tailor.

Sharing the rent

131Even though sharecropping contracts were of a different nature than rent, since they implied sharing the produce between landlord and tenant, jurists were nevertheless preoccupied with similar concerns as to rent in general. Thus, in the two most common types of sharecropping contracts in Ottoman times, the musāqāt and the muzāra‘a, a fundamental issue was whether the landlord’s share of the produce ought to be legally considered as the “rent.” If the landlord is receiving his “rent” by imposing on his tenant-farmer a share of the produce, would this be a legal thing to do, and should the “rent” in that case follow the same rules as any other rent? Or is the landlord’s share nothing but a quasi-“rent,” which in that case would need a different set of rules than for regular rents? Or should a formal rent be included even though the tenant shares his produce with his landlord? In that case, it needs to be seen whether a category as crucial as ajr al-mithl, which determines what a fair rent ought to be, still applies and is meaningful in a context where landlord and tenant share the produce. Be that as it may, sharecropping presents us with the same set of analytical problems as rent in general and its derivatives (marad, khulū, kadak, etc.), namely, that anafī texts proscribed rules that, when it came to the realities of the sharī‘a courts, the tendency was to circumvent them through procedural fictions. In effect, anafism places the practice of sharecropping within a similar range of constraints as rent in general, so that the applicability of such rules, in particular during the first half of the nineteenth century, becomes problematic at best. In fact, sharī‘a court records dealing with either one of the two major forms of sharecropping, the musāqāt and muzāra‘a, show a similar pattern of circumvention as, say, with the marad: a sharecropping contract is typically constructed on the basis of a fictitious litigation. Indeed, once the modalities of the contract are clearly stated in terms of what the shares between tenant and landlord are, and the rent is agreed upon, an individual posing himself as a potential tenant challenges the agreed upon rent and claims that it is far below the recommended fair rent (C 3-11 infra). He would also pledge that, if the court accepts his claim, he would be ready to accept the higher rent for himself. But since the (lower) rent price ends up confirmed by a couple of witnesses, the outside intervention of a potential tenant is no more than one of those numerous court devices that helped in creating types of contracts for which no specific legal language has yet been established. For reasons similar to the marad, sharecropping contracts were created as a way to manage uncompetitive low rents, short contracts, poor and uncertain harvests, and, at times, depreciating currencies. They were also typically limited to waqfs, a category that suffered the most from low rents. A sharecropping contract became one of the ways—and they were quite limited—of solving the low-rent problem while giving satisfaction to both landlord and tenant: the landlord received a rent-increment in the form of a share of the produce, while the tenant was granted a longer bail. In compensation for offering part of his produce, the tenant wanted that his low rent not to be challenged and that his landlord would not ask for an increment at each renewal.

132In Ibn ‘Ābidīn’s Radd, the muzāra‘a and musāqāt come in two different chapters, one following another. But besides this sequencing, the organization of the sixth volume of the Radd, which follows the classical order of the shurū manuals, does not help much in understanding the connections between chapters. Since the volume begins with the long ijāra chapter, one would have expected that forms of sharecropping, being variations of a regular lease, as a logical addendum to rent. But between rent and sharecropping, several other chapters intervene, such as usurpation, preemption, and partnership (qisma). Volume six is then completed with long chapters on homicides (jināyāt), the diya, wills, and inheritance (farā’i), among others. Sharecropping is therefore situated right in the middle of a richly packed volume, but in no way does its location help in understanding its connection to the other chapters. The assumption therefore that sharecropping is to be understood as a derivative of a lease contract does not come directly from the text itself, but stems more from a particular reading of those chapters and the few assumptions outlined above.

  • 145 Ibn ‘Ābidīn, Radd, 6:274.
  • 146 Ibn ‘Ābidīn, Radd, 6:274.

133Unlike the musāqāt, the muzāra‘a was a form of sharecropping that did not involve plantations—muzāra‘a being the most commonly used term, at least in anafī manuals, from a variety of other more local (regional) terms such as mukhābara, muāqala (from aql, field), or qurā (in Iraq).145 anafīs relate all sharecropping to germination (inbāt) because “both in language and in law, sowing is germination [al-zar‘ huwa al-inbāt].”146 A person cannot all by himself produce plantations, but he can be the cause for their germination. Sharecropping consists therefore in sharing what causes germination: one effectively labors the land, while the other provides the tools (ālāt, s. ālat). The “tools” include all kinds of necessary things for land cultivation: not only the seeds, animals, utensils, etc., but even the land itself, which is usually provided by the landlord to the farmer. anafīs therefore look upon the experience of sharing first in terms of who did what: who gave the lands and the tools, and who did the work, all of which need to be quantified in some way. In practice, however, sharecropping arrangements might look hopelessly complicated. Imagine a situation where the landlord gives the land and provides his farmer with the seeds; the farmer, in addition to his physical labor, provides, in turn, for more of the needed tools (the animals, for example). In short, this is one among numerous cases where the tools are provided by both parties, thus making it even harder for the jurists to figure out how the shares should be divided in such circumstances. But since such combinations emerged from customary practices, it is not to be expected that the fiqh manuals will show a great deal of logical and consistent line of arguments in this arena. As in other domains, jurists will link an activity such as sharecropping to previous canonical traditions, in both the scriptures and the fiqh, in order to apply a common line of arguments to different customary practices.

134A Prophetic tradition places the emphasis on plowing and cultivation rather than on sowing because it gives importance to the act of disseminating the seeds. Such normative values only become important when trying to create a typology for the various tools used under specific circumstances; it also helps in emphasizing certain acts while giving them a contractual priority. Consider the case of a farmer who cultivated the land of someone else without his authorization, and then proposes to the landlord to reimburse him for the seeds so that he becomes the landlord’s plowman; in other words, he is proposing to the landlord a de facto sharecropping contract. Concerning the reimbursement request, as long as the seeds have been disseminated (or consumed: mustahlak) in the land, a refund is inappropriate; but if case they simply “are (qā’im)” without being disseminated, the farmer becomes their sole owner and may request something in return. Thus, the logic here is that anything which has been already integrated within the land becomes ipso facto part of it, and hence part of the property of the landowner; otherwise, an alternative solution would force the landowner to give part of his property to the farmer for what he invested in it (labor, plantations, seeds, etc.). The tenant-sharecropper ought to keep the value of the investment—as part of the produce—all for himself, while the landowner receives the rest of the produce for his providing the land and all or part of the tools. The invested labor of the farmer in the land should therefore be valued in terms of a direct compensation paid in kind (or its equivalent cash) from the produce, rather than in any property right. anafīs thus leave no leverage to farmers who might have labored on a land without prior authorization, and who might then request a share in the property for having done so. Not only does the farmer (or unauthorized tenant) not enjoy any such right, but his sharecropping rights are not assured either, in particular if the seeds have become an integral part of the land: in that case, they are, like the land itself, the sole property of the landowner. The sharecropping contract must therefore come with explicit stipulations (mashrūt) in order for both parties to request their shares of the produce. Otherwise, a farmer who illegally cultivated a land, can still retrieve the grains he distributed over the soil, if that is possible, but he cannot request any share of the produce or of the land itself.

135If the produce goes in toto either to the landowner or the farmer, the contract is no longer one of sharecropping, because in the first case the landowner received help (isti‘āna) from the farmer, while in the second, the farmer would have “borrowed (i‘āra)” the land from the landowner. In the latter case, the “borrowing” of the land is legally identical to the tamlīk al-manfa‘a, that is, it is no different in any way from a regular lease contract. The case of the farmer keeping all the produce is therefore legalized as an ijāra contract, and subject to the same regulations and requirements as any lease: since the farmer would eventually pay his rent from the produce, it differs from sharecropping in that there is no immediate sharing. Moreover, in a tenancy contract, the farmer decides on his own how to meet the lease requirements, while in a sharecropping contract, his options would be much more limited. In this perspective, sharecropping would be looked upon as a lease contract, but with severe limitations as to how the rent should be paid. One thing that the jurists agreed upon without much hesitation is that sharecropping should involve a genuine sharing of the produce; however, the possibility of the landlord receiving all the produce was left unexplored: Was the farmer paid any “salary”? In that case, that would constitute another ijāra contract since the farmer is paid an ujra for his labor.

136The muzāra‘a and musāqāt court cases are very similar in their structure and purpose to all contracts dealt with in this chapter—in particular the marad. In fact, like the marad, musāqāt cases usually required going through all the rituals of a fictitious litigation: a hearing presided over by a non-anafī judge (in this case, a Shāfi‘ī judge that can accept a long-term lease), a plaintiff-defendant format arguing about the modalities of the tenancy contract, the musāqāt ratio, and finally the value of the equitable rent. Those were all part of a procedural fiction with a ruling that validated them. Both plaintiff and defendant end up with what they were looking for in the first place: a long lease, and a combination of musāqāt ratio and rent that is beneficial to both. Had they gone through the regular procedures of a tenancy contract, anafī practice would have contested almost each one of the elements agreed upon—hence the necessity of a fictitious litigation.

  • 147 Damascus 266/16/20/7 Jumāda II 1224 (July 20, 1809).

137In one such case [C 3-11], presided over by a Shāfi‘ī judge, a tenancy contract was concluded over a sown waqf land in Damascus.147 The lessor, represented in court by her son, was the administrator of her grandfather’s waqf and leased her property for a nine-year, seven month, and nine-day period. The first payment, covering the first year, seven months, and nine days, amounted to fifty-six piasters (the extra months and days seem to have been a common procedure to “round off” a tenancy contract that did not begin in the first day of the calendar year). The contract also included a musāqāt deal: the lessor added to her rent one percent of the produce while the remainder was kept by the tenant. A couple of witnesses certified that the tenancy contract and its corresponding musāqāt deal were all legally concluded, were also beneficial to the waqf, and that the rent price was an equitable one (ujrat al-mithl).

138As was typical of musāqāt cases, the hearing was not concluded with a legally accepted tenancy contract. Actually, the problem began when another potential tenant manifested his willingness to pay a higher rent than the one agreed upon thus far (in this case, the higher rent would have added thirteen piasters to the one already agreed upon in the proposal); that was then followed by a routine statement from the lessor’s representative. But that only took place after the lessor’s representative metamorphosed into a plaintiff accusing his tenant of a non-valid tenancy and musāqāt contract on four grounds: 1) the long-term contract; 2) the one-percent-musāqāt bonus; 3) the price below the equitable rent; and 4) as a result of all this, the tenancy contract not beneficial to the waqf. Having laid down his arguments, the lessor’s representative then urged the tenant-defendant “to vacate the property, so that he would be able to rent it with the proposed increment.” The tenant responded that as to the long-term contract and the one-percent-musāqāt bonus, their legitimacy was derived from the fact that they both were accepted by a Shāfi‘ī judge, and that the value of the equitable rent was confirmed by the two witnesses (whose statements were referred to as the bayyinah), and, finally, that the proposed increment is “damaging and obstinate [ziyādat arar wa ta‘nannut] and lowers the rent [tuqallil al-mu’ajjir].” Even though no explanation is provided in the document as to why a proposed “rent increase” should in itself be damaging and “lower the rent,” the logic seems to be that the combination of rent and musāqāt is a “better deal” than the stand-alone rent proposed by the other tenant. Be that as it may, what is of interest to us here is the actual tenant’s acknowledgment that “the statements of witnesses over the issue of equitable rent did not take place in front of a legitimate opponent towards which the litigation would be oriented in the context of a legal lawsuit.” To be sure, what the second part of the hearing does is precisely this: create a litigation (khuūma) so that everything that has been asserted in the first part is then reinforced through a two-judge ruling: first by the same Shāfi‘ī judge presiding over the case, and who would give his approval over the combination of a long-term lease with the sharecropping contract; then, a deputy anafī judge would give a de facto final ruling based on his predecessor’s approval. The contract was thus accepted after two successive rulings, and after the lessor claimed from the defendant a five piasters “debt” that he owed her; having requested from her representative to collect the debt, this was an opportunity for him—since this part of the hearing too took place in the form of a litigation—to clearly identify himself and claim his exclusive right in representing his client, and also to initiate an action against the tenant.

  • 148 Damascus 251/53/90/11 Muarram 1218 (May 3, 1803).

139In another similar case [C 3-12], also headed by a Shāfi‘ī judge, the conditions of the contract were as follows:148 the tenant, who was himself administrator of his grandfather’s waqf, leased (the rent was to be paid from the waqf’s revenues) from ‘Abdullah Efendī Murādī, who was acting as administrator on behalf of the waqfs of the Umayyād mosque in Damascus, a land in the city containing olive plantations; the rent, covering a six-year period, was valued at 141 piasters a year, in addition to two and a half qinārs of oil to be delivered at the Umayyād mosque with each rent payment. There was also a musāqāt deal on top of the rent in which one percent of the produce was to be added to the prestigious mosque’s revenues. Then comes the litigation part, and in a procedure identical to the previous case (C 3-11), a proposal came from another tenant suggesting an increase of twenty-eight piasters and half a qinār of oil. Since the finale is also identical with the previous, there is no need to go once more over this type of procedural fiction, except to note that the document included, for the second portion of the land, an identical contract and litigation in which even the rent price and oil to be delivered were of the same quantities.

140Such procedural fictions-cum-contracts do not differ much from the ones already elaborated upon throughout this Chapter, or from the other Shihābī cases involving large property transfers in Mount Lebanon (C 5-1 & 5-2 infra). In fact, the musāqāt contract, usually on the basis of a one percent of the produce allotment in addition to the equitable rent, was not in itself a contract per se: the sharecropping part was added to the original rent in a way that did not affect the usual form of all tenancy contracts; in other words, the rent as such was perceived by the tenant as a separate investment, to which was added the sharecropping part. This divides the contract into two parts: one was in cash—the rent per se; and the other one was in kind—a percentage of the produce. Because leases were for long periods of six to nine years (an arrangement that necessitated a rescue mission by a Shāfi‘ī judge), such an arrangement, consisting of a combination of cash money and a percentage of the produce, might have been a way of taking into account either currency devaluations or inflation.

141A general question arises concerning procedural fictions in general. One cannot help but realize that, throughout the nineteenth century (but since when exactly?), fictitious litigations have taken up much of the space of “genuine contracts”: that is, as it turns out, a main purpose of fictitious litigations was to establish contracts that otherwise—under normal circumstances—would have been difficult, if not impossible, to establish. This was definitely the case of both marad and musāqāt, and many others involving what was known as an equitable price or rent. This raises the following question: Why, for every practice that was not originally part of the fiqh canon, and then accepted on a de facto basis, was a fictitious litigation needed? The reason might well be that such customary practices were not well integrated in the first place: in other words, they were patched over the fiqh corpus rather than constituting an integral part of it. Such an integration would have required following the basic rules of opinion-making and ijtihād—the Qur’ān, sunna, consensus, and analogy—but the process always failed at the analogy level: it became so difficult to accept many of the customary practices based on the traditional process of analogy that they were, mutatis mutandis, “accepted” by means of fatwās, opinions, etc., without an elaborate and rational process of integration with the principles of the fiqh. This is why it is indeed invalid to hold the view that an “acceptance” of custom is in itself an indication of substantive change.

Rent and its self-correcting practices

  • 149 Karl Polanyi, The Great Transformation (Boston: Beacon Press, 1957 [1944]), 69.

142A striking feature of the anafī concept of “lease (ijāra)” is its derivation from ajr, broadly defined as ‘iwa al-‘amal, or a “compensation for labor.” Considering that in this context, ‘iwa is a compensation or indemnity for labor, the implicit notion is therefore the parallel drawn between leasing of land or a house, and paying a rent to the landlord, on the one hand, and hiring a person and paying him a compensation for his labor, on the other. On what basis then should the compensation for using a land (or a house) be conceptually similar to the compensation for labor? After all, besides the fact that an “indemnity” is paid in both cases, there is little to suggest that ijāra (lease, wage) and ajr (wage) are linked in some other way (e.g., labor). If in the modern capitalist (utopian) notions of nineteenth-century Europe, “wages are the price for the use of labor power, and form the income of those who sell it,” and “rent is the price for the use of land and forms the income of those who sell it,”149 there is nothing to suggest that, as far as anafī practice is concerned, “price”—and its related notions of labor and value—were a common and fundamental category to either ijāra or ajr. Not only was price not a common measure for “rent” and “wage,” but neither was labor; nor was production for that matter (in turn, as price as thaman and qīma was not conceptualized in terms of “value” and “exchange commodity”). In fact, both ijāra and ajr had to be linked to price (thaman) without bringing production into the picture—as ijārat al-mithl, the fair (average) rent, and ajr al-mithl, fair wage, both of which do not denote anything more than an “average street price” of a commodity. Since rent and wage were not conceptualized in terms of production, labor, value, and the like, the only remaining alternative is to look at them as consensual values, that is, as accepted by the two contracting parties on a one-to-one basis as “fair.” Thus, in the sharī‘a courts, the notion of fair rent and price played an important role in determining whether a contract was legal or not, in particular in fictitious litigations—legal was being associated here with fair; but it all comes down to the performing of the ritual of one of the parties contesting the fairness of the price, backed by two witnesses that would testify that the price was indeed fair, so that fairness revolved, as did many other things, on a customary perception of what things were and ought to be. For convenience, we will designate ijāra (and ujra) as rent, and ajr as wage.

  • 150 Ibn ‘Ābidīn, Radd, 6:3.
  • 151 Ibn ‘Ābidīn, Radd, 6:3-4.

143Another complication stems from the fact that “property” in anafī practice was associated with two different but related notions: tamlīk al-‘ayn, property of the tangible object itself, and tamlīk al-manfa‘a, the property of the use of that thing (usufruct, jouissance). Such a division had immense repercussions in the practice of the sharī‘a courts: manāfi‘ such as the khulū and gedik were sold by the tenant separately from the tangible thing (‘ayn), even without prior knowledge of the proprietor—a process commonly described as bay‘ al-manāfi‘.150 Moreover, “the a‘yān are favored [muqaddama] over the manāfi‘ because they are not subject to compensation [bilā ‘iwa].”151 Such a conception led to a notion of ijāra as nothing but the tamlīk al-manfa‘a bi-‘iwa, a notion that associates tenancy with “possession.” The tenant is therefore not simply using a land, shop, or house, but also possessing his right for using them. Such a right could, in turn, either be subject to a compensation, or else be sold (transferred/inherited) independently of the property itself. The “selling” (or transfer, or inheritance) of the “right” was in practice correlative to “compensation,” which in effect was sold to the moving tenant. Moreover, all kinds of investments in the property such as the cultivation of the soil and its irrigation, a water canal that was added, tools that the tenant brought to his rented shop, a rehabilitation to a waqf’s building, became ipso facto the “property” of the tenant, as if a second proprietor was created on the top of the one possessing the ‘ayn; but these two “proprietors”—and this indeed is an inadequate description—did not “share” the property (like two possessing two different portions of the same ‘ayn), but enjoyed different rights on the same property.

  • 152 François Ewald, L’État providence (Paris: Grasset, 1986), 481.
  • 153 Ewald, L’État providence, 481.

144An understanding therefore of ijāra as rent requires first a complementary analysis to milk, tamlīk, and tamalluk as forms of “private property”—such terms need to be contextualized first in order to avoid any anachronisms with modern uses and abuses. In fact, modern conceptions of property, generally expressed in slight variations from ones in contemporary civil codes, all center around the notion of a droit d’usage et d’abus. This includes a right to use something—but not possess or own that thing—and abuse of it. The right to abuse of a thing, as a “droit de nuire,” which stems from a subjective right to use and abuse, has its own limits—as long as the assessed damages are not perceived as legally “excessive” or “abnormal.”152 From a comparative perspective, therefore, what is crucial in such notions is the emphasis on subjective rights: the right of owning a property is at the foundation of every modern civil code; follows then the right of using that property by another person who leased it for a specific time period. Property therefore is nothing but a social function,153 since the subjective right of ownership, as stated and defended in civil codes, would lose its purpose without the social utility of property—as something to be “shared” by others—that is, legally leased by others—a lease that gives them a right to use and enjoy the benefits of that property; finally, the tenant also enjoys a right of abuse within limits. It would thus not make much sense in such systems for the tenant to “own” his right of using the thing he leased because that is part of the proprietor’s right.

Excursus on marriage

  • 154 Ibn ‘Ābidīn, Radd, 6:4.

145Such rights are probably best understood when comparing, in the framework of each legal system, the right to persons and the right to things. Thus, in his introductory remarks to Kitāb al-ijāra, Ibn ‘Ābidīn reminds his readers that marriage is not a tamlīk al-manfa‘a, but rather a tamlīk al-bua‘, that is, the possession of the vulva (al-nikā tamlīk al-bua‘ wa-laysa bi-manfa‘a),154 which is acquired, quite literally, by the payment of the dower (mahr) by the husband. The point here is that marriage is neither a contract of sale as such nor a tenancy contract for that matter—it is indeed a tamlīk, but of another nature. Marriage is therefore not the possession of a person, but rather the possession of a thing that the other person owns: namely, the female genitalia—and it is this ownership that renders sexual intercourse licit. Thus, not only does reciprocity not exist between men and women (since women cannot possess a man’s genital organs), but, more important, the right to things—such as the genitalia—is separate from the right to persons. In other words, the right to a thing—such as the man’s right to his wife’s genitalia—does not articulate well with the man’s right to his wife. Even within a position of non-reciprocity, a man’s right to his wife could hardly fit well with his right of possessing her genitalia. In short, in the notion of tamlīk al-bua‘, tamlīk should be taken literally as the ownership by the man of his wife’s genitalia.

  • 155 Immanuel Kant, The Metaphysics of Morals, translated by Mary Gregor (Cambridge: Cambridge Universit (...)
  • 156 Kant, Metaphysics of Morals, 95.
  • 157 Kant, Metaphysics of Morals, 95.
  • 158 Kant, Metaphysics of Morals, 97.

146To understand fully the complexity of the right of ownership of a thing, a bit of comparative analysis might prove helpful for our purposes here. In the spirit of the eighteenth century European Enlightenment, Immanuel Kant understands “sexual union (commercium sexuale) [as] the reciprocal use that one human being makes of the sexual organs and capacities of another (usus membrorum et facultatum sexualium alterius).”155 Besides underscoring reciprocity between men and women—at least as far as sexuality is concerned—the underlying theme is that of “right.” In fact, the above passage introduces the reader to the section “On the Right of Domestic Society,” and the first section is entitled “Marriage Right.” “Right” is definitely one of the key concepts of Enlightenment philosophy, and Kant was much concerned in tracing the moral foundations between the right to persons and the right to things: “This Right is that of possession of an external object as a thing and use of it as a person. What is mine or yours in terms of this Right is what is mine or yours domestically, and the relation of persons in the domestic condition is that of a community of free beings who form a society of members of a whole called a household (of persons standing in community with one another) by their affecting one another in accordance with the principle of outer freedom (causality).”156 In other words, Kant’s concern is that “a right to a thing” is not “merely a right against a person but also possession of a person.”157 It is therefore the fact that “a right to a thing,” which establishes a right of “possession of a person,” that pushes Kant towards the formulation of “the Right of humanity in our own person.” It is such a Right that renders this sort of acquisition possible for us. Thus, a man acquires a wife in the same way that a couple acquires children, or a family acquires servants. Kant is not so much concerned by the contractual side of such relationships as much as with the moral principles underlying them: such acts of possession—or acquisition—could only rest on a moral principle alone; and such a principle “must be the Right of humanity in our own person.” If this principle did not exist, the acquisition of a person would become the possession of a thing. Kant was well aware that the acquisition of a person is necessarily the acquisition of a thing—for example, a man’s acquisition of his wife ipso facto implies a possession of her sexual organs, hence the possession of a thing—so that unless a moral principle underscores the human side of the relation, the acquisition of a person could then be reduced to an acquisition of a thing. To be sure, a contract in such a situation would be of no help in proclaiming the moral principle since contracts are usually about mutual obligations. Thus, a person is acquired “as if it were a thing,”158 while a thing is acquired as a thing. When a person acquires a horse, the horse becomes his and he possesses it totally and fully. But when a man acquires his wife, he should expect, in turn, to be acquired by her.

147In short, the philosophy of Enlightenment, knowing that a person is acquired as if it were a thing, was very much concerned in working out the dividing line between the possession of a person and the possession of a thing. To achieve this goal, it had to create elaborate notions centering on the Right of humanity. The approach of the Muslim jurists was obviously altogether different. Thus, when Ibn ‘Ābidīn puts forward his reminder that marriage is neither a tenancy contract nor a contract of sale, but the male’s possession—ownership—of the female’s vulva, the consequence of such an action, namely the possession of the person as if it were a thing, is not even posed; and since reciprocity does not come into the picture either, the acquisition of a person as a result of a marriage contract remains unilateral—that of a man acquiring his wife. Such an acquisition, however, is not reciprocated—the woman neither acquires her husband nor his sexual organs—the act of acquisition of a person—namely, a woman—becomes that of acquiring a thing. In fact, since Muslim jurists look at marriage as a contract with religious foundations—as a natural act consecrated by God in the Qur’ān—there is no need to look further at human principles that would serve as a further consecration of the act.

Tenancy from the canonical texts to the court practices

148This marriage interlude shows the multiple forms of tamlīk; it also provides a few insights as to the articulation between the possession of the manfa‘a and the ownership of the ‘ayn. Thus, while the tamlīk al-‘ayn is not framed within a time period, tenancy contracts are primarily characterized by a limited time framework and a compensation. More broadly, tenancy contracts should specify the duration (mudda) of a lease, the distance (masāfa) (if an animal or person was hired to transport something), the kind of labor (‘amal: in case a laborer is hired, his specific task should be specified), and the compensation (badal, ‘iwa, ujra). Thus, because tenancy implies tamlīk al-manfa‘a, the type of usufruct should be well specified in the tenancy contract (e.g., for the purpose of agriculture, planting olive trees, etc.).

  • 159 Ibn ‘Ābidīn, Radd, 6:5.

149But even though tenancy is to be associated with tamlīk, it nevertheless cannot be correlated with any form of a contract of sale. In fact, an ijāra contract is more closely that of a “possession (taarruf)” of the tangible thing (‘ayn) than an actual holding or occupancy with or without rightful ownership. Since only the tangible thing itself could be owned (and occupied and possessed), only the ‘ayn could then be purchased and contracted on that basis. The manfa‘a, however, if sold, would imply the sale of a nonexistent thing, and this renders it invalid (bay‘ al-ma‘dūm bāil). The tamlīk, therefore, of a manfa‘a, “does not occur in the language [laf] of buying and selling,”159 but only in that of a tenancy contract. Two preliminary conclusions could be drawn at this stage: 1) On the issue of tamlīk al-manfa‘a and the non-validity of a contract of sale in this case, the jurists basically adopted the same arguments that forbade contracts that in principle were by analogy close to ribā (istinā‘, salam, bay‘ al-wafā’, etc.): all such contracts implied selling a nonexistent thing and are therefore invalid; 2) Regarding the sharī‘a courts, such arguments were not taken into account, and the manfa‘a—in the form of gedik, khulū, marad, and the like—was sold and purchased exactly like any tangible object. Even though the recurrence of such contracts was far below than the more regular sales of a‘yān (houses, shops, lands, etc.), it does show once more that customary practices did prevail over anything else. As noted earlier in the chapter on custom, it was in Ibn Nujaym’s al-Ashbāh wa-l-naā’ir that the legalization of khulū—based on the specific case of Cairo—became a norm and spread. Thus, the confusion stems from the fact that customary practices took tamlīk literally, while the jurists, who coined the words, were avoiding an identification between that form of milk, on the one hand, and tamlīk al-‘ayn, on the other.

150Considering that the jurists were avoiding at all costs such an identification, and that they rejected tenancy contracts that identified with an act of sale, what is then the meaning of tamlīk in conjunction with manfa‘a, and why use the word at all? It should be kept in mind that in its three occurrences thus far—as related to tangible things, manfa‘a (“rent”), and marriage—tamlīk ends up with three different but related meanings. In a marriage, even though the husband acquires the ownership of his wife’s vulva by the payment of the dower (mahr), marriage could nevertheless be neither identified with a lease nor a contract of sale. Such a contract is considered a sacred union between two partners under God’s consecration. Rent is another form of tamlīk understood more as a possession rather than an ownership—that is, the use of a thing (while in marriage, tamlīk goes more towards ownership). Finally, full ownership applies only to tangible things and not to the act of possessing them. Each one of those cases is a tamlīk, but only one is full ownership. In short, and in a nutshell: tamlīk does not necessarily legitimize milk. It might come close to it, or resemble it in some ways, but unless the object of ownership is a tangible thing, then there is no valid milk. It is as if the jurists, rather than widen their notion of property so as to include both the tangible and intangible, coined tamlīk for different situations in order to include, besides sales, both leases and marriages under this category.

  • 160 Ibn ‘Ābidīn, Radd, 6:5.

151anafī practice, however, draws few parallels between an act of sale and a lease. Thus, in the same way that a distinction ought to be made between a sale and a donation (or a gift), a lease is different from a loan (‘āriya). Again, such distinctions operate most vividly in the terms of the agreement. Thus, if one says: “I will lease you this house for free,” then this would be an invalid lease and not a loan (in the same way that an expression of the kind: “I’ll sell you this object for free” is an invalid sale act and not a donation). Only if the contract is limited to a specific time frame does the loan become valid: “I’ll lease you this house for a month for free.”160 Such examples show how much anafism attempted to impose specific forms of utterances in order to distinguish between a wide spectrum of social practices. Thus, having associated a lease with the payment of a badal or ‘iwa, the ghayr ‘iwa transforms the act into a non-lease; but if a ghayr ‘iwa contract is limited to a time framework, the contract would then be valid as a loan but not as a lease.

Towards an objectivism in contractual practices

  • 161 Ibn ‘Ābidīn, Radd, 6:5-6.

152Many of the precepts that fill the ijāra books address indirectly—if not overtly—this “gap” between the ought and the is, considering that in real life situations, social actors do not necessarily use the linguistic norms proposed by canon law. Consider for example the whole notion of “a tenancy contract that gets established without any utterance [in‘iqād al-ijāra bi-ghayr laf].”161 Suppose that someone leases a house for one year, and upon the termination of the contract, the owner comes to his tenant and informs him that either the house is freed right now, or else each occupancy month will be charged for a thousand dirhams. Now, if the tenant occupies the place for another month, that would be in itself an indication that he tacitly approved the owner’s offer: he should therefore pay the rent as stipulated by the owner. Notice that in this case, as exemplified by Ibn ‘Ābidīn, the owner uttered his proposal, while the tenant kept occupying the place without any record or utterance. So, while a proposal in the form of an utterance (laf) did come from the owner, the tenant kept mute, and only a gesture—that of keeping the occupancy of the place—could be interpreted as an approval.

  • 162 As Gilmore points out (Death of Contract, 49), in American common law, the link to the accepted sta (...)
  • 163 Ibn ‘Ābidīn, Radd, 6:5.
  • 164 Ibn ‘Ābidīn, Radd, 6:5.
  • 165 It is known in modern economic theory that setting common standards for and the uniforming of curre (...)

153To be sure, the modalities of such contracts—those without a formal utterance (a “silence” from at least one of the parties)—come into several variations. Indeed, the “silence” of the contractors could be linked to the conditions of the agreement, or that of the contract’s termination, or the contract’s validity and invalidity. Moreover, and in a way strikingly similar to the arguments on custom, jurists accepted the idea that each contract is tied up to what is acknowledged as valid within a particular locality.162 Thus, for example, the rent’s value, as specified in a contract, must be valued only in accordance with local currencies so that the reference should always be according to “a locality’s main currency [ghālib naqd al-balad].”163 The crucial notion here is that of ghalaba, or the dominating practices that have been acknowledged as such. Not only did anafism acknowledge them, but it even posed them as a necessary reference for any valid contract: “in the case in which the ghalaba is different [from what has been established in a contract,] the tenancy contract becomes invalid.”164 This ghalaba encompasses in principle each possible category for every transaction. Thus, if the amount agreed upon is to be paid in cash, the type of currency ought to be specified: is it based on number, weight, measure, or something else? But there is always, within a locality, a “decisive currency”—one that dominates all others.165 In the same way, if the agreed upon payment ought to be fulfilled in kind, the type of object should be clearly specified (food, clothing, animal, etc.); then more details ought to be provided on the nature of the object, with some precise descriptions, whenever possible. What such objects represent, whether in cash or kind, is an assessment of the manfa‘a; but because the manfa‘a itself is not a thing that could be exchanged, a contract needs to be specific as to the use of a manfa‘a: purpose, time, and place are usually among the most common coordinates. In other words, and in a way reminiscent of what a judge’s ruling is all about and how it differs from a fatwā—namely, the combination of āditha and khuūma—a manfa‘a is only considered as a “happening,” in the sense that “it does not have two times,” and that the compensation (badal) should be equal to a manfa‘a’s action happening right then. In other words, anafī jurists wanted to limit a lease contract to an event occurring in its actuality, rather than, say, to something to be fulfilled in the near future. This is why they were generally not much in favor of long leasess (ijāra awīla) because a fixed “equivalent” would have already been decided for rents that could go up or down in time. Obviously, such arguments come close to those forbidding usury and other types of exchange. Exchanges between objects, or an object and a function (such as a manfa‘a), are thus not only perceived on equal terms, but also within a time framework that limits itself to the present.

  • 166 Ibn ‘Ābidīn, Radd, 6:9.
  • 167 Ibn ‘Ābidīn, Radd, 6:17.

154Considered as a form of “weak exchange,” rent was looked upon with suspicion, at least much weaker and vulnerable than a regular act of sale: “Selling is stronger than leasing [al-bay‘ aqwa mina-l-ijāra],”166 notes Ibn ‘Ābidīn, in the middle of confusing opinions on what is valid for long-term leases: maybe the safest route would just be, say, for a thirty-year lease, to have thirty different contracts. Moreover, the jurists’ insistence on equal exchange led them, in the case of payments to laborers, to request that the pay be simultaneous with delivery (lā yajib al-ajr illā bi-l-taslīm).167 Exchanges are supposed to be “fair” rather than equal; or, fairness should tend towards equality.

155Fairness comes as an essential aspect in particular when the use of a thing is exchanged for money, or when one’s labor is exchanged for money. The exchange of two things on the market should also in principle obey the rule of fairness, but it does appear less urgent at this level. Broadly speaking, and whenever fairness is implied, it is usually the crucial category of ajr al-mithl (or ujrat al-mithl) that is at stake. The ajr al-mithl is a parallel and complementary category to the ajr al-musamma, or the “true” or “real” value of a thing; but how this is to be determined is another matter since the jurists never link such “values” to labor, salary, or rent for that matter. Jurists shared a general conviction that any exchangeable thing or labor have an intrinsic value of their own, similar in some respects to the “use value” of eighteenth- and nineteenth-century economists, but otherwise conceptually different. But the complementary notion of ajr al-mithl is not so much concerned with this intrinsic and real value of things as it is with their market value (or street price). The Majalla explicitly defines the ajr al-mithl (and all other mithl notions) as the price determined by knowledgeable people (ahl al-khibra: professionals); and in the sharī‘a courts, the fair rent or price was usually bargained for through evidence in the form of witnessing.

  • 168 Ibn ‘Ābidīn, Radd, 6:21.
  • 169 Ibn ‘Ābidīn, Radd, 6:30.

156Because the fair price could be easily challenged, jurists were mostly concerned with two issues: 1) Who has the right to challenge the ajr al-mithl? Should, for example, a judge terminate a waqf’s lease because the rent was below the fair price even though the administrator had given his full approval?; and 2) What ought to be done with a low price: simply terminate the contract or request an increase? When, for example, a conflict emerges between a ir and mutawallī over the rent’s fair value—one accepts what is stipulated in the contract while the other does not—the decision to assess the fair rent and pay it “goes back to the tenant’s consciousness [al-amīr yarja‘ ila al-musta’jir],” meaning that “it is up to the tenant, according to some of our [anafī] scholars, to pay the full fair rent [itmām ajr al-mithl].”168 So that if the property belongs, say, to a minor, and the rent is below its fair value, then it is up to the tenant to make the compensation. Such a requirement is even more true for waqfs leased at prices below what they should be because the waqf implies “blocking the tangible thing [abs al-‘ayn] and diverting its use for the sake of God.” In fact, waqfs, throughout the nineteenth century (if not before), were the ones mostly affected by rents below their value. That could have been the outcome of non-vigilant or corrupt administrators (the dual system of ir and mutawallī was primarily designed so that one supervises the other); but it was mainly due to the fact that the iltizām system, and the mīrī, which in reality were nothing but a full “rent” paid to the state via corrupt and greedy multazims, left little room for high or fair rents, so administrators had no choice but to lease their properties at very low prices (in conformity with mīrī properties). In such cases, not much could be judicially done because tenants were not in a position of unlawful usurpation: “as Khaṣṣāf’s preference was [tarjī], a tenant paying below the fair price cannot be accused of unlawful use [ghab], and should therefore pay [from his own initiative] the fair price.”169 Thus, since, from a legal point of view, nothing could be re-adjusted for such contracts, and no one could force any of the contracting parties to change the rent’s value, it was up to the tenant—and his own “consciousness”—to make up for the difference between market price and his own rent.

  • 170 Ibn ‘Ābidīn, Radd, 6:23.
  • 171 Ibn ‘Ābidīn, Radd, 6:23.

157At some point, in his chapter on rent, Ibn ‘Ābidīn asks: “What is it really meant by an increase in the fair rent [ziyādat ajr al-mithl]?”170 Overall, answers to such questions could only be relative as a general rule is impossible to establish, so jurists were left with cases that would render, say, an exorbitant increase in the fair rent legally unacceptable. Ibn ‘Ābidīn notes, in what seems to him as a less promising beginning, that most jurists spoke of “unrestrained increases [ziyāda mulaqa]” when it came to the ajr al-mithl, in the sense that the increase was determined solely by the desire to do so. In such cases, the increase (or the contract) should be revoked if exorbitant (tunqa ‘inda al-ziyāda al-fāisha).171 So that restricting the possibility of a nullification of contracts to exorbitant rents only is an indication that a moderate increase would be acceptable and does not constitute on its own enough reason to revoke a contract.

158What role did the notion of ajr al-mithl effectively play in Ottoman times? To be sure, it was widely used in the sharī‘a courts for specific purposes—most notably in fictitious litigations (C 3-9 & 3-10). In such cases, the ajr al-mithl was a procedural fiction to make the contract sound as if a fair rent was effectively bargained, while in reality such procedures were a way out of the general lowering values of rents: not a fair rent anymore, but a low rent due to the unusual circumstances of a waqf or milk property in question (overall, in both marad and musāqāt fictitious litigations, waqfs were the target). In fact, special arrangements or investments within a waqf property often pushed proprietors towards even lower rents (on the basis that the tenant was, in turn, giving concessions of his own by “investing”). All this has rendered a notion like ajr al-mithl not only totally superfluous, but distorted from its original connotations by serving as a procedural fiction. Being aware of that, jurists did finally admit some of those “irregularities” (for example, the marad practice). Since, however, the ajr al-mithl became an outdated notion, one even abused, the most interesting passages in the anafī manuals were not necessarily those that defined a fair price, how action ought to be taken, and by whom, if the proper regulations concerning price fairness are not followed.

  • 172 Ibn ‘Ābidīn, Radd, 6:24.
  • 173 Ibn ‘Ābidīn, Radd, 6:25.

159Texts discussing possible increases in the fair rent were more significant, but ought also to be cautiously read as well. In a way similar to discourses on the ‘ushr and kharāj, their “reality” is not immediate because they were always used in the sharī‘a courts in conjunction with an array of legal devices (iyal). For Ibn ‘Ābidīn, controversies over the legality of rent increases served as an introduction and directly justified practices such as the marad and the mashadd maskeh. He first notes that the object of a tenancy contract could either be, at the moment of the proposed increase, an empty land (or house, shop, etc.) on which the tenant is no longer working, or else a cultivated and planted land. In the former case, if the tenant refuses the increase, the administrator could simply terminate the contract and lease it to someone else. In the latter, it all depends on whether the duration of the contract was over or not: if, for example, the contract came to an end, and the landlord proposed a raise which his tenant objected to, then the tenant has the right to keep the land until he is able to complete the production process; he should, however, accept the raise for the extra time it took him to finish his labor. Moreover, such a rule, which should work well for cultivated lands, cannot apply if the tenant is building or planting something on the land: in such cases, there are no well defined cycles, and therefore neither tenant nor landlord could determine how much extra time is needed. The proprietor could therefore force his tenant to accept the raise until the duration is over.172 But in the case of the tenant refusing the increase, while at the same time he is involved in a project (such as buildings or plantations), then, once the duration of the contract is over, the administrator could request from his tenant to destroy (qal‘) all plantations or buildings if it turns out that their presence is not beneficial to or harming the waqf. However, the main assumption here is that the proposed increase did not result from the plantations or buildings themselves, but from the property itself. Overall, as Ibn ‘Ābidīn put it, jurists “tended to give the tenant the ability to choose, even if the removal [of plantations, qal‘] [if it occurred] did hurt him. Jurists involved in the shurū gave more choice to the administrator in particular [if the tenant’s behavior] was harmful; otherwise, it is the tenant’s choice. All this presupposes that the building activity [on the waqf’s property] took place without the administrator’s consent; because in the case where he did, then the building belongs to the waqf and the tenant should receive a refund from the administrator equivalent to his investment [marad], as noted in the Fatāwā of Abū al-Layth.” And he then adds, with an emphasis that he is finally stating his own opinion (aqūlu: I say) rather than rehearsing the opinions of others: “It will be stated in the coming chapter that the tenant must leave [istibqā’] the building and plantations [which he added to the waqf] [rather than remove them], after the period of the ajr al-mithl is over—and he has no other choice [jabr-an] [but to do so] as long as this is not damaging the waqf [in any way]; and [I am aware] that this is in contradistinction [mukhālif] to what has already been stated in the shurū, or in the fatāwā and the mutūn, as we will make it plain, if God wishes so.”173

160The significance of such opinions regarding increases in the fair rent are mostly valuable in light of the more complex legal devices such as the marad. In fact, in the ijāra book, opinions related to increases on the fair rent, and the rights of tenants and administrators that follow, come immediately before Ibn ‘Ābidīn’s remarks on the marad. It is therefore safe to look at them as related topics. Consider, for example, the issue as to what ought to be done with buildings or plantations added by a tenant who then rejects an increase requested by his administrator. In practice, and within the jurisdiction of the sharī‘a courts, such opinions made sense only within the framework of the (mostly) fictitious litigations such as the marad, since it is unlikely that a tenant would invest in a property and then be ordered to destroy what he did. Thus, when Ibn ‘Ābidīn states that, as a mujtahid, and contrary to all the opinions of his predecessors, investments in the form of buildings and plantations should be kept as part of the waqf’s properties, he is once more conceding to de facto practices which became quite common in Bilād al-Shām, if not in other provinces of the empire. In fact, his ijtihād directly prepares the ground for the crucial marad technique: in what he describes as “an important notice,” he points out that

  • 174 It is far from clear how Ibn ‘Ābidīn perceives the relationship between the debt in the form of a m (...)
  • 175 Ibn ‘Ābidīn, Radd, 6:25.

whenever a judge—or an administrator, when the judge’s authorization is not [directly] needed—approves a tenant’s request to build [on the property he rented from the waqf], so that [the investment] becomes a debt on the waqf, because there is no leftover from its rent [lā fāil min ray‘i-hi]174—and this is what they call in our provinces [diyāru-nā] the marad—the building is the waqf’s property; so that if the administrator wants his tenant out, he should reimburse [the tenant] the equivalent of what he did spend on the building. And it is not a secret that the administrator increases the fair price because of the building, so that in appearance [fi-l-āhir] he needs the full fair price [itmām ajr al-mithl]. The difference between this [opinion] and what was stated in [Ibn Nujaym’s] al-Ashbāh, is that in our case the building is part of the waqf, and thus [the fair price] should not increase because of the [building’s] ownership. I have also noticed in [Ramlī’s] Fatāwā Khayriyya, as part of a long question concerning the necessity of maintaining the ajr al-mithl, either before the building has been added or after, and whatever the consequences, that [the tenant] should be reimbursed for what he did spend [al-rujū‘ bimā arafa-hu]. The truth of the matter is that in our times [the tenant] ends up leasing far below the fair price, pays part of the rent, on the basis that the rest he invested it in the building itself.175

  • 176 In a similar way, a debt is neither something one owns nor is it associated with a ‘ayn, but is an (...)

161What is remarkable is the openness and precision with which the marad phenomenon is accurately portrayed—as a “debt” incurred on the waqf, and which de facto considerably lowers an already very low rent.176 But what remains unexplained is that general tendency towards low rents, and that other (related?) phenomenon of “status contracts,” consisting of a prima facie investment as a lump sum-cum-rent to secure the longest lease possible.

162Immediately following the above passage, comes a special section devoted to a malab—the “requests” upon which the eight-volume work is constructed—regarding the practice of the marad and its “similarity” to other practices such as the “value (qīma)” of a commodity and its fair price, the mashadd maskeh, the gedik (or kadak, in Arabic), and the khulū. What they all share in common is that they represent a preliminary form of “rent,” one that associates the tenant with a special contractual status, thus granting him or her a quasi-permanent lease in a low-rent market.

163Transforming regular lease contracts into a combination of lease and an invested-deposit meant above all that the essential notion of ajr al-mithl lost many of its old connotations. Jurists began to argue either that it was not, under certain conditions, a necessary component of the contract, or else that it could be substantially lowered.

  • 177 Ibn ‘Ābidīn, Radd, 6:26.

In the Fatāwā of ānūtī, it was suggested that a waqf could be leased below its fair price, in the case of its having a major problem, or if it was indebted. This is in conformity with what we had already stated regarding the marad as a debt on the waqf, whose rent decreases because of [the debt.] And in Shar al-multaqa, based on [Ibn Nujayms’s] al-Ashbāh, [it is stated that] a waqf should only be leased based on its fair price, only a little below [that price,] or [far below] only if no one wants it at this price. The same applies to the kadak [gedik], which consists in what the tenant builds into a waqf’s shop, but does not count it on the waqf [that is, unlike the marad, is not considered as debt on the waqf]. The tenant sees what is indispensable [to the waqf property] in terms of building, rehabilitation, equipment, and the like, and sells [the kadak] for a high price. Because of the high price that a tenant pays for [the kadak], and his spending on the waqf, the fair rent ends up necessarily low. It is therefore possible that originally the building of the waqf is from the kadak’s owner [that is, the tenant], which is then handed in to the waqf’s owner, who [adds to] the building and gives it to the tenant at a low price—a practice referred to as the khulū. The same applies also to the qīma and mashadd maskeh which cover small lands and the like. It consists of ... the right to plant and cultivate, which are sold for a high price: this is what pushes towards high rents; and those are among the things agreed upon.177

164Again, and in conjunction with the previous passage, this one is even more remarkable in bringing together these special “rents” to a common root—that of low rents—and its compensation with a high-deposit investment.

  • 178 Ibn ‘Ābidīn, Radd, 6:26.
  • 179 Ibn ‘Ābidīn, Radd, 6:26.

165For both marad and khulū (and other related notions), Ibn ‘Ābidīn links their acknowledgment to the early eighteenth century when a Damascus muftī, ‘Abdul-Ramān al-‘Imādī (whose fatwās he had himself so patiently updated in his Tanqī), issued a series of fatwās legitimizing such practices. Such steps, however, should not imply that “custom ought to be considered as an absolute criteria [i‘tibār al-‘urf mulaq-an] out of fear that this might open the gate of analogy [bāb al-qiyās] to many illegal things and tricks [al-munkirāt wa-l-bida‘].”178 Out of fear that the piecemeal integration of customary practices might become uncontrollable, anafī doctrine must therefore limit itself into accepting acknowledged practices “only when necessary to do so” and only when “there has been an acknowledgment, without any denial, from the a‘yān. Such is the case of the khulū known [in connection to] little shops, and which consists in having the bequeather, administrator, or owner of the shop receive a certain sum from the tenant [the khulū], thus providing the latter with a legal right to keep the shop [for himself]. The owner would then lose his right to force his tenant to leave or lease the shop to someone else, unless he pays him back [his khulū].”179 What Ibn ‘Ābidīn should have added is that the first tenant who paid his khulū to the owner enjoys all the legal rights to sell it on his own, without even requesting from the latter to do so.

  • 180 Ibn ‘Ābidīn, Radd, 6:26.
  • 181 Ibn ‘Ābidīn, Radd, 6:47.

166Throughout the Ottoman period, anafīs were continuously challenged by more demanding local practices which seem to have evolved out of socio-economic needs: “Our contemporary scholars agreed upon [such customary practices] and validated the selling [of the khulū] because the people need [this kind of transactions and contracts].” And the whole enterprise of allowing practices similar to the khulū find their way into anafism was initially based “on a procedure of analogy with [the notion] of bay‘ al-wafā’ which our late scholars have acknowledged as a legal device to limit usury [taāyul-an ‘ala al-ribā].” The sale of real property with the right of redemption (also known as bay‘ al-‘uhda) thus became the basis upon which later opinions were constructed and approved as legitimate. But if the basis of such a procedure was analogy—at least in between bay‘ al-wafā’ and the khulū—no further opinions, however, could be based by analogy on the khulū itself. Which means that other customary practices would have to be legitimized on an ad hoc basis—that is, literally force themselves into the body of the canon—rather than be constructed on the basis of an argument-based on analogy (e.g., by analogy to khulū, X would be legitimate). This was a convenient way to limit the large number of practices that could have been legitimized on the basis of analogy; practices had therefore to be accepted on other grounds than pure analogy: how widespread they were, the opposition between local and general customs, and whether they were beneficial to the community. In short, it all amounted to an act of iḍṭirār, what was necessary and unavoidable. Ibn ‘Ābidīn rightly reminds his readers that one of the basic rules of the fiqh (al-qawā‘id al-kulliya) states that “when a matter narrows down, its ruling widens [idhā āqa al-amr ittasa‘a ikmi-hi].”180 Which brings the notion of necessity to the forefront: the more a customary practice imposes itself within a locality to the point that without it matters would become unbearable—what the general rule describes as tightening or narrowing—the more its legal impact becomes certain—muftīs and judges do need then to take such practices into account and even adjudicate on that basis. That seems close enough to another general rule: that “custom could serve as a basis for a ruling [al-‘āda muakkima].” Still another way of stating the importance of custom: “What is customary achieves the status of a stated condition [al-ma‘rūf ka-l-mashrū].”181

The insidiousness of low rents

167Our survey on contracts and obligations reveals several decisive elements that were inherent in the overall functioning of the judiciary. On the one hand, anafīs maintained an inadequate and obsolete discourse based on the notion of “equality” in exchange. But, on the other, all kinds of self-correcting customary practices attempted to bypass the law’s rigidity and its static notion of equality. Those self-correcting practices, however, not only failed to alter the substance of doctrine, but even managed to transform some of its core notions into procedural fictions. For tenancy contracts, we have encountered four broad types of court practices unique to the Ottoman period, all of which aimed at providing users with much longer leases than the three- to six-year period allowed in anafī practice: 1) the khulū and kadak practices, which could either act separately or in conjunction with one another, and which consisted in investments, on the part of the tenant, in the rented property itself, be it milk or waqf; 2) the mashadd maskeh, or “the right to cultivate” a previously labored land, consists in the transfer of the investment of the previous tenant in terms of labor and other components; 3) the marad, also a tenant’s long-term investment, but in waqfs only; and 4) sharecropping contracts of the musāqāt and muzāra‘a categories, and in which the “shared” produce was added ad valorem to the rent as such. Needless to say, the purpose of all three was both to readjust the price of the rent and to obtain long bails. Since a tenant’s investment necessarily lowers the (fair) rent—something that even jurists finally admitted—the duration of the lease had, in turn, to be readjusted and lengthened. Of all four, the khulū and kadak combination was probably the least fair to the proprietor since he practically lost control of his property with no visible (tangible) gains. And while the marad represented a short-term advantage to both tenant and the waqf’s beneficiaries—at least its first generation—sharecropping contracts were a clear attempt, from the proprietor, to readjust the rent’s value by adding a share of the produce to it. The latter, based on a value in kind, kept prices in par with inflation and changing economic conditions.

168Interestingly, self-correcting practices, in both penal and civil procedures, were very often represented as negotiations between disputing parties, which invariably implied procedural fictions whose role was mostly evidentiary in nature. The purpose of such practices, which for the most part were legalized, was to create economic efficiency in situations where markets were generally regarded as inadequate. How efficient they were, however, is beyond the scope of this study, but their dissemination within the court system is definitely an indication of their inherent necessity in a system plagued by low rents and poorly circulating capitals.


1 Henry Maine, Ancient law, 1864, 165.

2 Max Weber, Economy and Society, 2:697; K. Zweigert and H. Kötz, An Introduction to Comparative Law, translated by Tony Weir, 3rd ed. (Oxford: Clarendon Press, 1998), Chapter24: “Freedom of Contract and its Limits.”

3 Louis Gernet, Droit et institutions en Grèce antique (Paris: Champs Flammarion, 1982), 35: “Dans la transmission de la propriété et dans les relations contractuelles, il y a un acte auquel les droits anciens attachent une valeur spéciale et qu’ils soumettent parfois à un véritableformalisme, c’est la tradition; même des droits évolués, qui l’exténuent ou qui l’éludent, ont encore affaire à elle. Elle a des conditions, un rituel au point de départ, et des conséquences de droit: elle est, à sa manière, efficace. Or, il apparat que sa valeur propre remonte plus haut que le droit: ce n’est pas le droit qui l’a inventée.”

4 The Ottoman Mejelle-i Ahkam-i ‘Adliyye (Majalla) was promulgated in 1877 as the Civil Law of the Ottoman State. It consists of an introductory part comprising 100 “general rules,” based for the most part on Ibn Nujaym’s Ashbāh, and which lay out some of the basic principles of the anafī madhhab. The other parts consist of a reorganization of the anafī law of contracts and obligations.

5 Oussama Arabi, “Contract Stipulations (Shurū) in Islamic Law: The Ottoman Majalla and Ibn Taymiyya,” International Journal of Middle East Studies 30, n°1 (1998): 29-50.

6 The odyssey of the modern secular civil codes in Islamicate societies began when the Majalla was replaced in Turkey in 1926, as part of wide-sweeping reforms that were meant to separate state from religious institutions, by a new civil code; that was to be followed by Lebanon (1932), Syria (1949), and Iraq (1953).

7 As pointed out in George Young, Corps de droit Ottoman (Oxford, 1907), who footnoted some major differences between the French and Ottoman penal and commercial codes.

8 In the sense of Marshall Hodgson, Venture of Islam, vol.1 (Chicago, 1974), 107-9, as agrarian societies whose values were determined by the culture of urban centers, through which taxation was imposed and the surplus was exchanged with other commodities produced in the cities.

9 Abdul-Razzāq Sanhūrī, Maādir al-aqq fi-l-fiqh al-Islāmī, 6 vols in 2 (Beirut: Dār Iyā’ al-Turāth al-‘Arabī, n.d.), 1:78.

10 See Chapter2, “The culture of judges.”

11 Sanhūrī, Maādir, 1:17-18.

12 Alan Watson, Roman Law and Comparative Law (Athens, Georgia: University of Georgia Press, 1991), 63.

13 Watson, Roman Law, 123.

14 Also referred to as mūjib-āt (s. mūjib).

15 Abdul-Razzāq Sanhūrī, Maādir al-aqq fi-l-fiqh al-Islāmī, 6 vols.  in 2  (Beirut: Dār Iyā’ al-Turāth al-‘Arabī, n.d.), 1:14.

16 Sanhūrī, Maādir, 1:78.

17 Chehata’s “méthode historique” (Théorie générale de l’obligation en droit musulman hanéfite, Paris, 1969, 49) has nothing historical since it fails to detect the order in which contracts emerged. It rather proceeds deductively by constructing a rational and abstract contractual form from the multiplicities of contracts that are detected in the fiqh manuals. However, the historical order of those contracts was not Chehata’s main concern (see the following section below).

18 Watson, Roman Law, 122.

19 Chehata, Théorie, 58.

20 Muammad Rawwās Qala‘hjī, al-Mu‘āmalāt al-māliyya al-mu‘āira fī aw’ al-fiqh wa-l-sharī‘a (Beirut: Dār al-Nafā’is, 1999), 36: “Money has a value but is not a tangible object (al-nuqūd qīmat-un wa-laysat a‘yān-an).”

21 Sanhūrī, Maādir, 1:18.

22 Watson, Roman Law, 123.

23 Sanhūrī, Maādir, 1:32.

24 Watson, Roman Law, 53: “It was an oral promise in which the person to whom the promise was to be made asked the other if he would give or do whatever it was, and the other would promise, using the same verb. The question and answer had to be exchanged orally, the promise had to correspond exactly to the question, and no delay was to intervene between the question and answer. This means, of course, that the parties had to be face-to-face and the contract could not be made at a distance by letter.” But while the stipulatio “bound only one of the parties,” the ījāb wa-qabūl, as Joseph Schacht argued (An Introduction to Islamic Law, Oxford, 1964, 22), was a “bilateral construction” since ījāb, “making something wājib, means etymologically not ‘to offer’ but ‘to make definite, binding, due,’...” Moreover, the ījāb formula could be oral or written, and a delay for acceptance was possible, and, at least for the anafīs, the location of the offer and acceptance, known as the majlis, had to be one in principle, but this “oneness,” however, was the subject of a long line of interpretations.

25 P.S. Atiyah, Essays on Contract (Oxford: Clarendon Press, 1986), 12: “It consists of an exchange of promises; the exchange is deliberately carried through, by the process of offer and acceptance, with the intention of creating a binding deal. When the offer is accepted, the agreement is consummated, and a contract comes into existence before anything is actually done by the parties. No performance is required, no benefit has to be rendered, no act of detrimental reliance is needed, to create the obligation.”

26 Beirut sharī‘a courts, unnumbered register and document, 18 Dhu-l-ijja 1262 (7 December 1846).

27 We will come across Emir Khalīl Shihāb, son of Bashīr II, a couple more times (Chapter5 infra).

28 Schacht, Introduction, 153.

29 Schacht, Introduction, 121: “The distinction between fāsid and il, which is not recognized to the same extent, or not at all, by the other [non-anafī] schools of Islamic law, is often not clearly made; the idea of fāsid comes near to that of “voidable,” though it is not identical with it, and fāsid contracts, even if they are not voided, sometimes have only restricted legal effects.”

30 Muammad Rawwās Qala‘hjī, Mu‘jam lughat al-fuqahā’ (Beirut: Dār al-Nafā’is, 1996), 314.

31 See Chapter1 supra.

32 Bay‘atān fī bay‘a: a group of devices for evading the prohibition of interest.

33 David Ricardo, Principles (New York: Everyman’s Library, 1973), 11.

34 See François Rachline, Que l’argent soit. Capitalisme et alchimie de l’avenir (Paris: Calmann-Lévy, 1993).

35 To Adam Smith the opening of the market to selfish individuals who seek to promote their own self-interests is what reduces the damages of rent and the position of monopoly. Indeed, it is that kind of open competition that is morally just because it enables the majority to pursue their own interests rather than be subjected to unjust monopolistic forces which, in the final analysis, are nothing but the old aristocratic rentiers. Schumpeter, on the other hand, saw monopoly as an essential aspect of capitalism. The entrepreneurial spirit, as he called it, would like to be rewarded for its creations and costs by assuming—at least for a while—a position of monopoly, without which the cost and pain of competitive creation would never be rewarded. The entrepreneur, however, will not be able to rest on his laurels for long, as his creation will soon be copied and routinized by others, and because of other more inventive creations on the market—a process that Schumpeter famously labeled as one of “creative destruction.” Thus, for both Adam Smith and Schumpeter, capitalism implies “fairness,” and if, for Weber, the capitalist ethic is one of austerity and hard work, it still remains not that far from the joyful destructive energies of Schumpeter’s entrepreneurial capitalism.

36 Muammad Sa‘īd al-Qāsimī, Qāmūs al-inā‘āt al-Shāmiyya (Paris: Mouton & Co., 1960), 1:7. A Similar passage from Ibn Khaldūn’s Muqaddima reads as follows in the Franz Rosenthal translation (Princeton University Press, 1967), 297: “Man, by nature, needs something to feed him and to provide for him in all the conditions and stages of his life, from the time of his early growth to his maturity and on to his old age. God created everything in the world for man and gave it to him, as indicated in several verses of the Qur’ān. Man’s hand stretches out over the whole world and all that is in it, since God made man His representative on earth.”

37 Qāsimī, Qāmūs, 1:16.

38 Damascus 251/46/77/19 Muarram 1218 (May 11, 1803).

39 See Chapter4 infra.

40 Chafik Chehata, Théorie générale de l’obligation en droit musulman hanéfite (Paris: Éditions Sirey, 1969).

41 Chehata, Théorie, 43.

42 Chehata, Théorie, 44.

43 Another attempt in this direction, even though less systematic, is to be found in, ubī Mamaānī, al-Naariyya al-‘āmma li-l-mūjibāt wa-l-‘uqūd fi-l-sharī‘a al-Islāmiyya (Beirut: Dār al-‘Ilm li-l-Malāyīn, 1983).

44 Sanhūrī, even though had a different juridical approach than Chehata, shared similar views in his Maāir al-aqq fi-l-fiqh al-islāmī. Both, however, fall short of what would be considered an “historical” approach.

45 Chehata, Théorie, 58.

46 Schacht, Introduction, 22, 145.

47 aydar, Durar, 1:91.

48 Marcel Mauss, The Gift (Norton).

49 anafīs conceive marriage—at least in part—as a property transaction, even though a contract of marriage is neither strictly speaking a contract of sale nor a tenancy contract. However, “by the payment of the dower (mahr), the husband acquires, quite literally, the ownership (milk) of the wife’s vulva, and it is this ownership that renders sexual intercourse licit”: Colin Imber, Ebu’s-su‘ud: The Islamic Legal Tradition (Edinburgh: Edinburgh University Press, 1997), 174.

50 In modern terminology, māl refers more commonly to “money,” that is, the nuqūd or ‘umla. The equivalent of māl in a modern context would be sil‘a, that is, commodity as such, or each thing that could be legally exchanged.

51 Schacht, Introduction, 134.

52 Substance includes here the essence (al), self (al-dhāt), and characteristics (ifāt): see aydar, Durar, 1:94.

53 Chehata, Théorie, 63.

54 Chehata, Théorie, 67.

55 Article 1101 of the Code civil defines a contract as “une convention par laquelle une ou plusieurs personnes s’obligent, envers une ou plusieurs autres, à donner, à faire ou à ne pas faire quelque chose.

56 Jean-Claude Montanier and Geoffrey Samuel, Le contrat en droit anglais (Grenoble: Presses Universitaires de Grenoble, 1999), 11.

57 I have chosen marad over murad, see, Muammad Rawwās Qala‘hjī, Mu‘jam lughat al-fuqahā’ (Beirut: Dār al-Nafā’is, 1996), 391.

58 See Chapter7 infra, and more specifically C 7-2, 8-2, 11-7 & 11-8.

59 Ibn ‘Ābidīn, Radd, 4:517.

60 According to article 159, ‘ayn originates in the “specified thing (al-shay’ al-mu‘ayyan al-mushakhkha)” and denotes anything from a home, horse, chair, barley, wheat, or money. Thus, despite the fact that ‘ayn is synonymous with māl in designating any possible thing or substance, māl should be looked upon more as a “thing-for-exchange,” that is, ready to be sold and bought: this “readiness” determines whether the purchase of the object is legal or not (mutaqawwam/ghayr mutaqawwam).

61 aydar, Durar, 1:100.

62 aydar, Durar, 1:101.

63 Ibn ‘Ābidīn, Radd, 4:502. An alternative translation: “the proceeds and usufruct of a thing are possessed by the tenant, without being his property.” Since any exchangeable object is māl, the latter becomes the general term for property, while milk is limited to the “possession” of the thing and the absolute right of its use. Hence a tenant possesses the manfa‘a as milk, even though the latter is not his property (māl). Such a definition of property as māl limits it to corporeal property, thus excluding incorporeal property (e.g., debt instruments or promises to pay) and intangible property (anything that enables one to obtain from others an income in the process of buying and selling, borrowing and lending, hiring and hiring out, renting and leasing, whatever the transaction). On the notion of property as māl, see, Frank E. Vogel and Samuel L. Hayes III, Islamic Law and Finance (The Hague: Kluwer Law International, 1998), 94-5.

64 Ibn ‘Ābidīn, Radd, 4:503. Or: “the usufruct is not property as such.”

65 Ibn ‘Ābidīn, Radd, 4:502.

66 As we will see later, the above statement is more confusing than it first appears: 1) Ibn ‘Ābidīn includes and discusses several forms of “usufruct” such as the klulū, kadak (gedik), and the mashadd maskeh, in his chapteron the “Buyū‘”; 2) These forms of “usufruct” are “on the top of the rent” and are “purchased” from one tenant to the next without the intervention of the proprietor who seems the obvious loser in all such transactions (in particular waqf properties); 3) Sharī‘a court cases treat some manāfi‘ in a way very similar—if not identical—to properties in general: that is, they could be purchased, exchanged, transferred, inherited, etc.

67 In another context, it also means the covenant of protection provided to the non-Muslim dhimmīs.

68 An alternative translation: “Freedom of indebtedness must be presumed, unless proven otherwise.” The key notion here is that of al, which implies an “original state” of nature which is the “essence” of beings.

69 aydar, Durar, 1:107.

70 Ibn ‘Ābidīn, Radd, 4:501.

71 Ibn ‘Ābidīn, Radd, 4:501.

72 Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974 & 1995), 95.

73 Ibn ‘Ābidīn, Radd, 4:501.

74 Ibn ‘Ābidīn, Radd, 4:501.

75 Ibn ‘Ābidīn, Radd, 4:502.

76 Ibn ‘Ābidīn, Radd, 4:534.

77 Joseph A. Schumpeter, History of Economic Analysis (New York: Oxford University Press, 1954 & 1994), 718-19: “As soon as we realize that there is no essential difference between those forms of ‘paper credit’ that are used for paying and lending, and that demand, supported by ‘credit,’ acts upon prices as essentially the same manner as does demand supported by legal tender, we are on the way toward a serviceable theory of the credit structure and, in particular, toward the discovery of the relations between prices and interest.”

78 See Michel Foucault on how nineteenth-century political economy fits within the general épistémè of that period, together with the natural and social sciences: Les mots et les choses: une archéologie des sciences humaines (Paris: Gallimard, 1966), 266-267.

79 Cf. Maxime Rodinson, Islam et capitalisme (Paris: Seuil, 1966), Chapteriv: “Influence de l’idéologie musulmane en général dans le domaine économique.” Going through various “ideological” levels, Rodinson is unable to detect any firm reprobation of either riba or gharar, which, beginning with the scriptures, he perceives as having both been very loosely defined in the Islamic literature. Why then did loan practices not openly flourish, as they did in the Italian city-states of the Renaissance? In effect, even the Ottoman Majalla of 1877 did not carry a single item on loans with interest, and it was only a firman, dated 3 April 1887, that fixed the rate of such loans at 9 percent (p. 157). If, however, Rodinson’s analysis, despite all its merits, is nonetheless not that persuasive it is probably because he limits the development of capitalism to the circulation of capital, and hence, indirectly, to the ubiquitousness of credit and loans. But if such capitalist techniques remained marginal in all the Islamic empires, including the Ottoman, in spite of all the loose legislation regarding usury, it was because there was no need for them in the first place, meaning that the productive forces in those societies did not develop to such a degree to require massive loans and credits. The “Islam and capitalism” paradigm can therefore only be tackled globally, through a synthesis that would bring together state formations with land regimes, currencies, trade, law, the role of the literati and culture.

80 Ibn ‘Ābidīn, Radd, 4:512.

81 Ibn ‘Ābidīn, Radd, 4:512.

82 See, Haim Gerber, ““Palestine” and Other Territorial Concepts in the 17th Century,” International Journal of Middle East Studies 30, no. 4 (1998): 563-572, which discusses Khayr al-Dīn Ramlī’s notion of bilād.

83 Ibn ‘Ābidīn, Radd, 4:513.

84 aydar, Durar, vol.1, commentary on article 10.

85 Article 37 of the Majalla states that “What is commonly practiced by people should be followed (ist‘māl al-nās ujja yajib al-‘amal bi-hā)”; and aydar comments (Durar, vol.1) that the “wa‘ yad on a thing and having disposed with it (al-taarruf fīhi) are an indication of formal property (dalīl al-milk dhāhir-an).” What establishes a “right of property” is a court’s ruling that takes into consideration the “disposition” with the property over an extended period of time.

86 Gilmore, Death of Contract, 45-8.

87 aydar, Durar, vol.1, commentaries on article 12.

88 Ludwig Wittgenstein, Philosophical Investigations (Oxford: Blackwell, 1958), Ā43.

89 Article 61 of the Majalla states that: “If the literal meaning is not possible then the metaphorical meaning should be considered (idhā ta‘adhdharat al-aqīqa yuāru ila al-majāz).”

90 The Majalla, opting for a more “secular” tone than Sharī‘a law in general, admits that “it cannot be denied that rulings change with the change of times” (article 39); but aydar’s commentary is more specific: “the rulings that change over time are those based on custom and habit” (aydar, Durar, vol.1, commentary on article 39).

91 “In the case of ‘things that increase’ (māl nāmī; namā’, the accession) the usufruct includes the proceeds (ghalla), including the proceeds of letting or hiring out. The proceeds can also become the object of separate rights of property, e.g., by legacy which confers a right in rem; these rights then do not include the right of direct use.” (Schacht, Introduction, 134)

92 Schacht, Introduction, 134.

93 George Young, Corps de droit ottoman (Oxford, 1906), 6:68 (note 50).

94 Ibn ‘Ābidīn, Radd, 4:502.

95 The same argument is reiterated verbatim in Salīm Rustum Bāz, Shar al-Majalla, vol.1 (Beirut: Dār al-Kutub al-‘Ilmiyya, n. d.), commentary on article 125.

96 aydar, Durar, 1:371.

97 aydar, Durar, 1:371.

98 Mā thabuta ‘ala khilāf al-qiyās fa-ghayra-hu lā yuqās ‘alay-hi.

99 In contemporary Syria, Lebanon, and Egypt, among others, landlords have to pay large “compensatory” sums—sometimes worth half the estimated price of a property—to their tenants as a “compensation (ta‘wī)” for forcing them out of their rents, an action that usually has to proceed through the regular civil courts (a compensation very similar to the khulū in Ottoman Sharī‘a courts).

100 Ibn ‘Ābidīn, Radd, 4:520.

101 According to Ibn ‘Ābidīn, the majority of lands in Bilād al-Shām were waqf.

102 Ibn ‘Ābidīn, Radd, 4:521.

103 Commonly referred to as itikār in modern Arabic.

104 Bāz, Shar, 1:248.

105 Ibn ‘Ābidīn, Radd, 4:522; Bāz, Shar, 1:248.

106 Yawm tārīkheh: “the day of that date.” Since there is only one date mentioned in the document, that of the hearing, the generic expression, yawm tārīkheh, should mean, in this context, the date of purchase, that is, “property transfer,” which is, formally speaking, also the date the representative (seller) was appointed by his four clients.

107 Damascus 266/1/1/18 Jumāda I 1224 (July 1, 1809).

108 See Chapter5 infra.

109 Ibn ‘Ābidīn, Radd, 5:152.

110 Montanier and Samuel, Le contrat, 15.

111 Montanier and Samuel, Le contrat, 11.

112 The question remains open as to whether there were cases of kadak without a corresponding khulū, and why such an arrangement would be beneficial for the tenant.

113 Ibn ‘Ābidīn, Radd, 4:502.

114 Ibn ‘Ābidīn, Radd, 4:503.

115 In addition to other popularly named utensils: tālī, qarmiyyah, and a fay jadīd (?).

116 Damascus 266/2/3/2 Jumāda II 1224 (July 15, 1809).

117 Damascus 251/47/78/10 Muarram 1218 (May 2, 1803).

118 This was the date of the seller’s own purchase of the kadak and khulū. The judge’s document certifying his ownership is referred to as ujjat al-tatābu‘, literally “a consecution (succession) document.”

119 In modern Arabic, a more appropriate term would be māl marūd.

120 Ibn ‘Ābidīn, Radd, 4:523.

121 Ibn ‘Ābidīn, Radd, 4:522-523.

122 It is not clear what the roots of this term are.

123 Ibn ‘Ābidīn, Radd, 4:522.

124 Ibn ‘Ābidīn, Radd, 4:523.

125 Bāz, Shar, 1:247-248.

126 Bāz, Shar, 1:248.

127 aydar, Durar, vol.1, commentary on article 158.

128 The formal acceptance of such notions as istinā‘, salam, and bay‘ al-wafā’, was the result of long détours together with a complex process of bricolage for each notion taken separately: in other words, a higher level of abstraction that would coalesce such notions into a single concept was not even posed.

129 Damascus 266/37/47/18 Jumāda II 1224 (July 31, 1809).

130 Damascus 266/30/37/13 Jumāda II 1224 (July 26, 1809).

131 On 19 Jumāda I 1224 (July 2, 1809).

132 Damascus 266/13/16/5 Rabī‘ II 1224 (May 20, 1809). The defendant’s position of administrator was approved by the same anbalī judge on 17 Rabī‘ II 1224 (May 2, 1809).

133 Gabriel Baer, “The Dismemberment of Awqāf in Early 19th Century Jerusalem,” Asian and African Studies, 13(1979), 220-241. In the Jerusalem cases, khulū and murad seem to be tied together in the language of the court documents: khulū shar‘ī murad raqaba lahu ‘ala [the waqf property]. In fact, the khulū being “the most common device to establish private rights and assets on waqf property in early 19th century Jerusalem,” it seems to have been a pre-condition for every murad: once the invested amount has been legalized by the court, it becomes the tenant’s khulū. It is not clear, however, whether khulūs derived from murads followed the same rules that khulūs generally did: that is, the general procedures of contracts of sale which made them transferable and inheritablelike any other “property.” The direct association of khulū with murad in 19th-century Jerusalem, seems more “logical” than their complete separation in the courts of Damascus. As argued above, both should be looked upon as investments in a private waqf property in order to grant the tenant special privileges.

134 Ibn ‘Ābidīn, Radd, 4:523-524.

135 Ibn ‘Ābidīn, Radd, 4:524.

136 Ibn ‘Ābidīn, Radd, 4:524.

137 Damascus 266/17/21/12 Jumāda II 1224 (July 25, 1809).

138 Probably a variation from bā’ikat-un; both being ‘āmmiyya language.

139 A final note in the document asserts thathe entire above hearing took place after a “debt” was settled between the second seller and one of the representatives on the other side: as usual, this was a means to establish the identity and right of representation for the representative who pays or receives the “debt.”

140 The rights of guardianship and representation were granted by the same judge presiding over the trial and at the same date as that of the hearing.

141 Damascus 266/18/22/12 Jumāda II 1224 (July 25, 1809).

142 In this case too, a fictitious “debt” establishes the representatives’ identities and their legal rights in representing their respective clients.

143 See below Chapter11.

144 Bāz, Shar, 2:759-760.

145 Ibn ‘Ābidīn, Radd, 6:274.

146 Ibn ‘Ābidīn, Radd, 6:274.

147 Damascus 266/16/20/7 Jumāda II 1224 (July 20, 1809).

148 Damascus 251/53/90/11 Muarram 1218 (May 3, 1803).

149 Karl Polanyi, The Great Transformation (Boston: Beacon Press, 1957 [1944]), 69.

150 Ibn ‘Ābidīn, Radd, 6:3.

151 Ibn ‘Ābidīn, Radd, 6:3-4.

152 François Ewald, L’État providence (Paris: Grasset, 1986), 481.

153 Ewald, L’État providence, 481.

154 Ibn ‘Ābidīn, Radd, 6:4.

155 Immanuel Kant, The Metaphysics of Morals, translated by Mary Gregor (Cambridge: Cambridge University Press, 1991), 96.

156 Kant, Metaphysics of Morals, 95.

157 Kant, Metaphysics of Morals, 95.

158 Kant, Metaphysics of Morals, 97.

159 Ibn ‘Ābidīn, Radd, 6:5.

160 Ibn ‘Ābidīn, Radd, 6:5.

161 Ibn ‘Ābidīn, Radd, 6:5-6.

162 As Gilmore points out (Death of Contract, 49), in American common law, the link to the accepted standards of the community became crucial for purposes of “contractual liability”: “I must show that my mistake was justifiable or excusable in the light of the generally accepted standards of the community.” The point was to make both parties liable by giving them fewer excuses in the case of non-performance. That was achieved by 1) searching for the external manifestations of mutual assent rather than the more dubious, and less promising, subjective intent; 2) contextualizing the contract so that all utterances, forms of speech, and customs and habits are all associated to a certain locality; and 3) locking “consideration,” which is an outcome to offer and acceptance, into a bargaining process (“the bargain theory of consideration”); all of which helped judges in their rulings whenever non-performance became an issue. Both parties would then become liable once all the formal requisites of offer, acceptance and consideration had been satisfied. anafism did attempt something similar—to define a “mutuality of obligation”—through a multiplication of procedural fictions of what constitutes valid and invalid contracts. But, in the absence of a solid tort law (which assumes a level of wealth in society), what kind of compensation did exist for the party that suffered from the non-performance of the other?

163 Ibn ‘Ābidīn, Radd, 6:5.

164 Ibn ‘Ābidīn, Radd, 6:5.

165 It is known in modern economic theory that setting common standards for and the uniforming of currencies, weights and measures, are tools for considerably cutting down of transaction costs.

166 Ibn ‘Ābidīn, Radd, 6:9.

167 Ibn ‘Ābidīn, Radd, 6:17.

168 Ibn ‘Ābidīn, Radd, 6:21.

169 Ibn ‘Ābidīn, Radd, 6:30.

170 Ibn ‘Ābidīn, Radd, 6:23.

171 Ibn ‘Ābidīn, Radd, 6:23.

172 Ibn ‘Ābidīn, Radd, 6:24.

173 Ibn ‘Ābidīn, Radd, 6:25.

174 It is far from clear how Ibn ‘Ābidīn perceives the relationship between the debt in the form of a marad, on the one hand, and the rent, on the other. The sharī‘a court records show three types of arrangements: 1) The tenant keeps paying the usual rent, ajr al-mithl, and can hold to his contract until his is completely reimbursed; 2) The tenant pays less rent on the basis that the discounted amount constitutes monthly refunds; he will keep his contract until the full debt is reimbursed; or 3) The tenant pays no rent at all because the waqf owes him money, and the monthly rent constitutes a gradual reimbursement. So what Ibn ‘Ābidīn seems to be suggesting in the above passage is that the “investment”—or marad—becomes a debt for the waqf (dayn-an ‘ala al-waqf). This debt, however, cannot be paid immediately by the waqf authorities since “there is no left over from the rent [lā fāil min ray‘i-hi],” meaning that the rent itself is not generating, at the moment, enough extra cash that would be enough to refund the tenant. This is another way to say that the tenant’s investment has been accepted simply because it is beneficial to the waqf even though the latter cannot afford it.

175 Ibn ‘Ābidīn, Radd, 6:25.

176 In a similar way, a debt is neither something one owns nor is it associated with a ‘ayn, but is an “obligation” in the debtor’s dhimma; while a contract of sale is directly associated with a ‘ayn and its simultaneous transfer, hence there is no more obligation upon its conclusion.

177 Ibn ‘Ābidīn, Radd, 6:26.

178 Ibn ‘Ābidīn, Radd, 6:26.

179 Ibn ‘Ābidīn, Radd, 6:26.

180 Ibn ‘Ābidīn, Radd, 6:26.

181 Ibn ‘Ābidīn, Radd, 6:47.

Table des illustrations

Titre Figure ‎3-1. Contracts of sale.
Légende Commentary: The point here is that as long as a contract falls under the category of “mun‘aqid” it would still be negotiable in court even if it were “voidable” (C 3-1). Only contracts that are null and void cannot be endorsed by any court action.
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Titre Figure ‎3-2. Milk subdivisions.
Légende Commentary: Besides the big division between a‘yān and manāfi‘, it is important to see where did the “tenancy-rights” contracts fit into the picture. In fact, such contractual settlements, which were neither pure milk nor tenancy contracts as such, became prominant in the urban areas and were for the most part based on an “investment” from the tenant in the property which he or she did not own, thus making the latter a de facto second owner. But even though the economic “benefits” for society as a whole remain by and large questionable as such settlements tend to block tenancy rights and subject them to quasi-sale operations (obviously, it was the tenant who ended up with the greatest advantage), such practices brought tenancy rights closer to sale contracts, thus binding them by status and special settlements rather than opening them to a free competitive market. Finally, as we will see in Chapter 11, contractual settlements of a nature similar found in this chapter were also applied to homicide cases, thus making the damaged body parts, considered as māl, subject to a negotiation-cum-“compensation” in terms of pre-arranged settlements with the culprit or his family. Where does money as ‘umla fall into all this? Considered only as a “means” to “value” (qīma) things, it is therefore not a ‘ayn, which therefore implies that it is not a māl either. So what is it exactly then? In principle, had the fiqh acknowledged the status of ‘umla as ‘ayn and māl, it would have then become like any other commodity—but with the very privileged status that it could be exchanged for any other commodity—and hence the exchange of money for money could only be done at a price (“interest”), otherwise there would be no incentive for it. However, having not acknowledged that common and special status as applying to money, it does not fit, strangely enough, anywhere in the above chart. It was, indeed, the thing invisible in Ḥanafī dogma.
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