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A Refereed Study

Repentance from Unlawful


Earnings and its Rulings in
Islamic Jurisprudence

Dr. Khaalid bin Abdullah Al-Muslih1

1 Assistant Professor, Faculty of Sharee'ah and Religion Fundamentals, Qasseem


University.
Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

Foreword
All praise belongs to Allah; we praise and thank Him for His
blessings in this life and the life to come. I bear witness that there is no
deity other than Allah and that our Prophet and Master Muhammad is
His Messenger; he made every thing good permissible for us and every
thing vicious forbidden to come nigh; may Allah's peace and blessings
be upon him, his family, his companions and all those who follow in his
footsteps until the Day of Judgment.
Lawful earnings are among the things that the believers should
strive hard to get, especially in this age of ours when there is so much
doubt that shrouds permissible and impermissible things. The evil
effects of unlawful earnings are so adverse that they may prevent rain
from falling. Muslim reports on the authority of Abu Hurairah (may
Allah be pleased with him) that the Prophet (may Allah's peace and
blessings be upon him) said, "Allah the Almighty is Good and accepts
only that which is good. Allah has commanded the believers to do that
which He commanded the Messengers, and the Almighty said: 'O
Messengers, eat of the good things, and do good deeds; '2 . He also said:
'O You who believe! Eat of the good things that We have provided for
you.'3 He then made a mention [the case of] a person who travels
widely, dishevelled and covered with dust, who lifts his hands towards
the sky [saying]: "O Lord! O Lord!" while his food is unlawful, his drink
unlawful, his clothing unlawful and he is nourished unlawfully, so how
can then [his supplication] be answered?"4
Indeed, unlawful earnings and ill-gotten gains have spread widely in
this age of ours, as foretold by the Prophet (may Allah's peace and
blessings be upon him). Al-Bukhaaree reports on the authority of Abu
Hurairah (may Allah be pleased with him) that the Prophet (may Allah's
peace and blessings be upon him) said, "A time will come when one will

2 Al-Mu'minoon, 23:51.
3 Al-Baqarah, 2:172.
4 Book of Zakat, part on Allah's acceptance of charity from good sources, no. 1686,

narrated by Abu Haazim on the authority of Abu Hurairah.

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Dr. Khaalid bin Abdullah Al-Muslih

not care how one earns one's money, legally or illegally." 5 This state of
affairs makes it necessary and even more pressing to elaborate on the
rulings of repentance from illegal earnings and how to keep away from
indulging in any activity that may lead to getting unlawful earnings.
Many of those who have earned something unlawful have realized the
ugly sin they have committed and have thus returned to Allah after a
long time of heedlessness and carelessness. In fact, such people need to
know how to repent from these unlawful earnings and to find out about
the actions that they should do in order to remove the burden of sin
from off their shoulders. Therefore, I have thought it useful to tackle this
intricate issue based on the rulings given in the Holy Qur'an and the
Prophet's Sunnah, and I pray to Allah to assist me through this study.
For the sake of clarity and simplicity, I have planned the present
study as follows:
I. Introduction on the reality of unlawful earnings
II. Unlawful earnings without mutual agreement. This topic is
divided into four sections:
1. Ownership of this type of unlawful earnings
2. Profits of this type of unlawful earnings
3. Reasons for guaranteeing this type of unlawful earnings, and
4. Repentance from this type of unlawful earnings
III. Unlawful earnings with mutual agreement. This topic is divided
into three sections:
1. Types of unlawful earnings with mutual agreement
2. Ownership of this type of unlawful earnings, and
3. Repentance from this type of unlawful earnings
IV. Conclusion
It is noteworthy that the manuscript of this paper was reviewed by
the Late Sheikh Muhammad As-Saalih Al-Uthaymeen who added
several interesting comments to which I referred in the footnotes by the
statement "Our Sheikh said…"
I seek Allah's help and guidance in presenting this paper to our
readers in the best possible manner.

5 Book of Sales, part on the Qur'anic statement "Do not eat your property…", no. 1941.

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Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

Introduction
Reality of Unlawful Earnings
To define unlawful earnings, we need to define each of the
constituent components of the term. The Arabic word "kasb" means "to
earn" one's living. "Maksab" (pl. "makaasib") means earning.6 The word
"muhharramah" is an adjective derived from the word "haruma", which
means forbidden or prohibited, and the verb "harrama" means to forbid
or prohibit. Hence, the word "muharramah" means unlawful or
prohibited. Here we choose the term "unlawful" to mean everything
forbidden or prohibited.
Therefore, the term "unlawful earnings" means any amounts of
money or property collected or earned through unlawful ways.
Unlawful earnings, of course, come through different ways which can be
summed up as follows:7
1. Earnings obtained without mutual agreement, like the property
that moves from the hand of its real owner without his consent to the
hand of another person through theft, usurpation, racketeering or the
like.
2. Earnings obtained with mutual agreement like the property or
money that moves from the hand of its real owner with his consent
through usury, gambling and deceptive sale, values of materials like
wine and drugs or values of prohibited services like bribery, adultery,
sorcery and the like.
I will discuss each way and related rulings under a separate heading.
I. Unlawful Earnings Obtained without Mutual Agreement
1. Ownership of This Type of Unlawful Earnings
Unlawful earnings are essentially the property of their original
owners. However, ownership of these unlawful earnings is subject to the
following conditions:
a. Ownership if Earnings Remain Intact

6Tahdheeb Allughah, 5/44 and Mukhtaar As-Sihaah, p. 56.


7Ahkaam Al-Qur'an by Al-Jassaas, 1/344; Minah Al-Jaleel, 2/416; Al-Fataawaa Al-Kubraa by
Ibn Taymiyah, 5/421 and Al-Insaaf, 6/214.

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Dr. Khaalid bin Abdullah Al-Muslih

All scholars unanimously agree that these unlawful earnings remain


the property of their original owners and that they should be returned to
them if the body of the property is intact without any addition or
reduction and if its owner is known. 8
Ibn Hubairah writes, "They [the scholars] are agreed that the usurper
should return the usurped property if it remains intact and no threat to
life is feared as a result of removing it from the hand of the usurper." 9
Al-Shawkaani also writes, "It is unanimously agreed [among
scholars] that the usurped property should be returned if it remains
intact." 10 The case of usurpation applies to all other unlawful earnings
which are also subject to the same ruling.
b. Ownership if Earnings are Consumed
If the unlawful earnings have been consumed as a whole or it is
impossible to return them to their original owners, the ruling differs
according to their condition, as follows:
i. If the unlawful earnings constitute a property that can be replaced
by a similar property, 11 it is unanimously agreed that a similar property
should be returned to the original owner. Ibn Rushd writes, "If the body

8 Bidaayat Al-Mujtahid, 2/317; Maraatib Al-Ijmaa' by Ibn Hazm, p. 59; Ikhtilaaf Al-A'immah
Al-Ulamaa by Ibn Hubairah, 2/12 and Al-Mughnee, 5/139. See also Al-Bahr Ar-Raa'iq,
8/123; Mawaahib Al-Jaleel, 5/290; Al-Muhadhab, 1/369 and Al-Mubdi', 5/154.
9Ikhtilaaf Al-A'immah Al-Ulamaa by Ibn Hubairah, 2/12.
10 Ad-Daraaree Al-Mudhee'ah, p. 335. See also Badaa'i' As-Sanaa'i', 7/148; Nihayat Al-

Muhtaaj, 5/150 and As-Sayl Al-Jarraar, 3/349.


11 Note: The principle that controls similarity is a point of difference among scholars:

1. The Hanafites consider it anything that can be measured by weight but not a
finished product.
2. The Maalikites are of the opinion that it is anything that can be measured by
weight or number with similar constituents.
3. The Shaafi'ites consider it anything that can be measured by weight and is
permissible to sell in advance "salam".
4. The Hanbalites contend that it is anything that can be measured by weight but
not a finished product and is permissible to sell in advance.
5. Anything having a similar description, be it measured by weight or number or
even an animal. This point o view is advocated by Ibn Taymiyah and Ibn Al -
Qayyim and is considered the preponderant point of view by Ibn Hazm. It is
also the view selected by our sheikh. It is apparent that this view is the
strongest one.

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Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

of the property that is dishonestly obtained is exhausted, they [the


scholars] are agreed that the usurper should return a similar property, if
the usurped property can be measured by weight and description." 12
ii. If the unlawful earnings are kinds of value but have no similar
items, the usurper should return their value, as has been unanimously
agreed among scholars from the four schools of jurisprudence. 13
However, they have differed as to the time at which to calculate the
value of these unlawful earnings, as follows:
1. The value of the property at the time of usurpation should be
applied according to the Hanafites14 , the firmly established opinion of
the Maalikites15 and the view held by Ibn Taymiyah. 16
2. The value of property at the time of damage or impossibility to
return it should be applied, according to the Hanbalites. 17
3. The maximum value of the property from the time it is usurped to
the time it is damaged or it is impossible to return it, for it is damaged as
a property of its original owners, according to the Shaafi'ites. 18
The preponderant opinion is that the value of the property at the
time of usurpation or impossibility to return it should be applied
because the property remains the ownership of its original owner until
the time it is damaged or exhausted. Therefore, it is damaged while it is
in the possession of its original owner. 19

12 Bidayat Al-Mujtahid, 2/317. See also Al-Binayah Sharh Al-Hidayah, 9/318-321; Al-
Khurashi ala Mukhtasar Khaleel, 6/133; Nihayat Al-Muhtaaj, 5/162 and Ar-Rawdh Al-Murbi',
p. 303.
13 Al-Binaayah Sharh Al-Hidaayah, 9/319; Jawaahir Al-Ikleel, 2/149; Fath Al-Jawaad, 2/552

and Ar-Rawdh Al-Murbi', p. 304.


14 Al-Binaayah Sharh Al-Hidaayah, 10/214.
15 Jawaahir Al-Ikleel, 2/149.
16 Al-Ikhtiyaaraat Al-Fiqhiyyah, p. 165. Our sheikh Ibn Uthaimeen said, "This is not

applicable in any way unless the usurper took it with the intention to keep it; ot herwise,
it is considered the property of its original owner and anything added to it shall belong
to him."
17 Ar-Rawdh Al-Murbi', p. 303 and Al-Mubdi', 5/182.
18 Fath Al-Jawaad, 2/552 and Rawdhat At-Taalibeen wa Umdat Al-Mufteen, 5/25.

19 However, the third point of view may be applied if it is chosen by the judge.

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Dr. Khaalid bin Abdullah Al-Muslih

c. Ownership if Earnings have Changed


A property might be affected by changing conditions: either as a
whole, by increase or by decrease.
1. Total Change. This type of change is the one that occurs to the
unlawful earnings to the extent that they no longer meet the original
intent of the original owner or no longer have the designation given to
them before they were usurped. For example, if someone usurps some
juice but it changes into wine, wheat which he grinds or a piece of steel
which he makes into a sword. The same applies to raw materials which
the usurper uses in building, industry or the like. Scholars have differed
as to the ruling on these changes that occur to unlawful earnings, as
follows:
i. These unlawful earnings are considered to remain in the
possession of their original owners. However, advocates of this opinion
have differed as to the action that should be taken with regard to these
changing unlawful earnings, as follows:
a. The usurper should pay the difference if the property decreases
according to Ash-Shaafi'ee20 and is firmly established rule according to
the Hanbalites. 21
b. The owner has the option either to take the property and claim the
decrease that occurred to it or to claim a replacement. This opinion is
advocated by Ibn Taymiyah as "the fairest and strongest opinion on this
issue".22
c. If the change occurs as a result of a natural event, the owner has
the option either to accept it with the decrease that occurred to it or to
claim its value. However, if the change occurs as a result of the usurper's
act, the owner has the option to accept it as it is and asks the usurper for
compensation for the decrease or to claim for the property in the
condition it was at the time of usurpation. 23

20 Nihaayat Al-Muhtaaj, 5/180-181.


21 Al-Insaaf, 6/200. However, if som juice turns into wine, the usurper should pay its
value, according to some scholars, or he should return something similar.
22 Majmoo' Al-Fataawaa, 29/562.
23 Al-Fawaakih Ad-Dawaanee, 2/244.

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Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

ii. Ownership of these unlawful earnings moves to the usurper and


should be guaranteed by the usurper in its original condition. This is the
view of Abu Haneefah and some Hanbalites. 24
The preponderant view is that these unlawful earnings remain the
property of their owners and that their owners have the option either to
accept the usurped property as changed and claim the amount of
decrease that has occurred to it or to claim a replacement whether it has
changed as a result of a natural event or as a result of the usurper's
transgression or negligence. The argument supporting this last view is
that the usurper is not a trusted earner and hence he should guarantee
the whole property in any case whatsoever. The Prophet (may Allah's
peace and blessings be upon him) said, "An unjust [usurper] who
sweats over [taking someone's property illegally] shall have no right." 25
2. Decrease. An unlawful earning might be subject to decrease, on
which case scholars have expressed two different points of view:
a. This decrease does not eliminate the ownership of these earnings
by the original owner, as argued by the Hanafites26 , a point of view held
by some Maalikites27 and is the contention of the Shaafi'ites28 and the
Hanbalites.29
Therefore, the usurper should return the property and guarantee to
replace the decrease that has occurred to it. However, the Hanafites
exempted any usurious transactions. They argue that the owner cannot
claim the decrease when he retrieves the original property because this
will lead to usury. Therefore, the owner should accept it as it is or claim
the value of the property. 30

24 Al-Binaayah Sharh Al-Hidaayah, 9/332.


25 Reported by Maalik, no. 1456 from Hishaam bin Urwah from his father as a mursal
hadeeth. It is also reported by Ahmad, no. 72 from Musa bin Uqbah from Ishaaq bin
Yahya bin Al-Waleed bin Ubaadah bin As-Saamit from Ubaadah and by Abu Dawood,
no. 2073, At-Tirmidhee, no. 1378 from Hishaam bin Urwah from his father from Sa'eed
bin Zayd.
26 Al-Binaayah Sharh Al-Hidaayah, 10/226-229.
27Bidaayat Al-Mujtahid, 2/318.
28Nihaayat Al-Muhtaaj, 5/171.
29 Ar-Rawdh Al-Murbi', p. 302.
30 Al-Binaayah Sharh Al-Hidaayah, 10/231.

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Dr. Khaalid bin Abdullah Al-Muslih

b. This decrease needs to be investigated, as the Maalikites contend. 31


The change occurs either as a result of the act of the usurper or as a
result of the act of Allah. If the decrease results from the act of Allah, the
owner has no option except to accept the usurped property as it is or
claim its value at the time of its usurpation. However, if the decrease is
the result of an act by the usurper, the owner may claim the value of the
property at the time of usurpation or accept the property as it is with the
value of the decrease caused by the usurper.
The preponderant view is that of the majority of scholars which
states that the unlawful earnings should be returned and the decrease
should be paid. Distinction between what is usurious or otherwise is of
no value because it is not a sale to which the conditions of sale may
apply.
3. Increase. This type of change is that an increase may occur to the
unlawful earnings. Scholars differ as to how to handle this case:
a. This type of change does not eliminate the ownership of these
earnings by the original owner, as the Shaafi'ites argue. 32
b. This type of change affects the ownership of these earnings, as has
been reported to be Ahmad's point of view. 33 For more elaboration, it
should be stated that if these unlawful earnings increase by an act of the
usurper, he should be considered a partner in the amount of increase
because such an increase has occurred as a result of his effort which is
subject to the same rulings applicable to properties. This view is
reported from Ahmad, which is closer to justice.
2. Profits of this Type of Unlawful Earnings
Scholars have differed as to who deserves the profits and revenues
of this type of unlawful earnings obtained without mutual agreement, as
follows:

31 Bidaayat Al-Mujtahid, 2/317-318. Ibn Rushd elaborated on the reasons of difference as


to this issue.
32 Nihaayat Al-Muhtaaj, 5/184-185 and Rawdhat At-Taalibeen wa Umdat Al-Mufteen, 5/27.
33 Al-Mubdi', 5/161. Ibn Rushd has elaborated on the increase that occurs to this type of

unlawful earnings in his book Bidaayat Al-Mujtahid, 2/320-321.

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a. Neither the owner nor the usurper deserve these profits; rather
they should be given in charity. This is the Hanafites' established
opinion34 and is reported to be Ahmad's view.35
The reason for such a contention is that these profits resulted from
an unlawful act, namely acting on another's person property without his
permission, and that this type of profit should be given in charity, as the
resulting profit depends on the description of the original property.
b. If these profits occur without any effort by the usurper such as the
progeny, milk and wool of animals and the usufruct of real estates, they
are the property of the original owner. However, if they have resulted
from the effort of the usurper, they are the property of the earner. This is
the Maalikites' point of view. 36 However, they argued that these profits
should not be made use of by the original owner if his original property
is returned to him.37
c. These profits and revenues should be given to the original owner
of these unlawful earnings and the usurper should not take anything
from them. This is the point of view held by the Shaafi'ites 38 and the
Hanbalites.39
The reason they give in support of their point of view is that these
profits are similar to fruits and progeny. Ibn Hazm writes, "Any profit
generated by a property is the entitlement of the owner of the said
property; even our opponents agree with us in this respect. Therefore,
and any view to the contrary amounts to rendering the use of other

34 Al-Mabsoot, 13/163; Al-Binasayah Sharh Al-Hidaayah, 10/232-233 and Sharh Fath Al-
Qadeer, 9/328-329. Note: The Hanafites argue that the earner may use this profit to pay
the difference in value if he is requested to do so. The reason is that these unlawful
earnings were in fact the property of the original owner but eliminated from the lawful
property by giving the profit to the earner if he is poor. , They have, however, expressed
two different views in case the earner is rich.
35 Al-Qawaa'id by Ibn Rajab, p. 192 and Al-Insaaf, 6/208.
36 Al-Muntaqaa by Al-Bajee, 4/22; Al-Istidhkaar, 7/149; Al-Fawaakih Ad-Dawaanee, 2/245-

246 and Haashiyat Al-Adawee, 2/372.


37 Ibid. A number of the Maalikite scholars argue that it is better for the earner to give the

profits in charity. See Al-Muntaqaa by Al-Baajee and 4/22; Al-Istidhkaar, 7/149.


38 Al-Muhadhab, 1/486 and Al-Haawee Al-Kabeer, 7/336-338.
39 Tasheeh Al-Furoo' by Al-Mirdaawee, 4/493-494; Al-Insaaf, 6/208 and Mataalib Ulee An-

Nuhaa, 4/20.

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Dr. Khaalid bin Abdullah Al-Muslih

people's property unrightfully permissible, considering unlawful


earnings permissible and violating the provisions of the Qur'an and the
Sunnah without having any supporting evidence whatsoever."40
4. These profits and revenues obtained by the usurper should be
shared by the owner and the earner. This point of view is reported from
Ahmad41 and is considered weighty by Ibn Taymiyah 42 and Ibn Al-
Qayyim.43
According to the above point of view, the usurper should have his
share of the profits and the balance should be returned to the original
owner with the property. 44
This view is supported by Umar bin Al-Khattaab's act with his sons
Ubaidullah and Abdullah. 45 The report on this case states that when Abu
Musaa Al-Ash'aree gave a loan of two hundred thousand dirhams to
Umar's sons from the war booties without giving any similar loans to
other Muslims, Umar considered it a sort of impermissible favouritism.
The loan resulted in a large profit of eight hundred thousand dirhams.
Umar ordered his sons to pay back the amount of the loan and the profit
to the treasury and that they should not keep any part of the profit
because they had taken the loan unrightfully. His son Ubaidullah said,
"It is not right to do so. Had we lost the money, we would have paid it
out of our money. So, why you oblige us to repay the amount if we lose
and do not give us part of the profit?" Umar rethought the matter and
some companions of the Prophet (may Allah's peace and blessings be
upon him) said, "We consider it similar to a investment partnership.
They can have half the profit and leave the other half for Muslims."
Umar agreed.

40 Al-Muhallaa, 8/135.
41 Al-Insaaf, 6/208.
42 Majmoo' Al-Fataawaa, 30/323 and Al-Ikhtiyaaraat Al-Fiqhiyyah, p. 147.
43 Madaarij As-Saalikeen, 1/423.
44 In Al-Ikhtiyaaraat Al-Fiqhiyyah, p. 147, Al-Ba'lee writes, "If he usurps something like a

horse and earns some money from using it in hunting, the profit earned should be
shared by the original owner of the horse and the usurper according to the amount of
effort exerted by the hunter and the horse.
45 Al-Istidhkaar, 7/150.

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This is the view adopted by jurists as to investment partnership


(mudhaarabah). This was the established judicial rule adopted by Umar
bin Al-Khattaab, and all other companions of the Prophet approved it.
This is a fair practice because the increase occurred as a result of the
property of the owner and the effort exerted by the earner, and hence
both of them should share the profit. Therefore, the profit is divided
between them as if they were parties to an investment partnership.46
Perhaps, this is the correct view in this respect. Allah knows best.
Ibn Rushd has elaborated on this issue and summed up the views of
scholars on this issue as follows: 47
1. Some scholars maintain that the revenues are subject to the same
ruling of the usurped property. Therefore, the usurper should also
return the revenues at the time he receives them or give their maximum
value, based on the argument of scholars who are of the opinion that the
usurper should pay the highest value of the usurped property at the
time he usurped it rather than the mere value of it at the time of
usurpation.
2. Some other scholars argue that the revenues are not subject to the
same ruling of the usurped property, and advocates of this opinion
differed much as to how to handle the revenues of the usurped
property.48

46 Majmoo' Al-Fataawaa, 30/323.


47 Bidaayat Al-Mujtahid, 2/321.
48 In Bidaayat Al-Mujtahid, 2/321, Ibn Rushd writes, "The sum of the opinion advocated

by these scholars is that revenues and profits can be divided into three parts: 1) revenues
generated from the same type of the usurped property like progeny, 2) revenues
generated from the usurped property but with a different type like fruits, milk of sheep,
dairy and wool and 3) non-generated revenues which are considered benefits like rents,
charges and the like. If they are of the same type of the usurped property, there is no
difference that the usurper should return them with the usurped property. However, if
they are generated from the usurped property but with a different type, two views can
be cited: 1) the usurper deserves the revenues and 2) the usurper should return them
with the usurped property if they are still existent or return their value if they are
damaged or lost (depending on his statement about damage). However, if the usurped
property is damaged, he has the option to either pay its value or accept it with the
revenues but not its value. If they are non-generated, five views have been expressed: 1)
The usurper is not obliged to return them, 2) he is obliged to return them, 3) he is
obliged to return them if he leases the property but not if he uses it himself, 4) he is

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Dr. Khaalid bin Abdullah Al-Muslih

3. How this Type of Unlawful Earnings is Returned


Scholars have differed as to how to return these unlawful earnings,
as follows:
a. The usurper should return the value in case the usurped property
is not of the type that can be weighed, according to the Hanafites, 49 the
Maalikites50 , the Shaafi'ites51 and the Hanbalites52 .
b. The usurper should return a similar property in all cases. This is
one of Ahmad's opinions53 advocated by Al-Anbaree and supported by
Al-Haarithee.54
c. The usurper should return a similar property if it is not an animal.
This is the opinion advocated by Ash-Shafi'ee who gave the example of
a wall demolished unjustly for it. 55 The same rule applies if someone
removes one or several bricks from a wall. 56 Ahmad applies this rule on
clothes, utensils and the like. 57
The preponderant opinion in this case is that a similar property
should be returned as far as possible. 58 This point of view is supported
by Ibn Hazm59 , Ibn Taymiyah 60 and Ibn Al-Qayyim.61

obliged to return them if he leases it or even uses it and 5) there is difference between
animals and other assets: if he uses the former, he is not obliged to pay for it and if he
uses the latter, he has to pay for it provided that the usurped property is still existent.
However, if he uses them by exchange like currencies, the revenues are his. Some
scholars said, 'The profits are associated with the original usurped property but if the
revenues are the ones usurped, he should pay them. In this case, there is no difference
between any type of use, lease or neither one of these transactions, whether the usurped
property is still existent or otherwise.'"
49 Al-Mabsoot, 11/50.
50 Al-Muntaqaa by Al-Baajee, 4/293 and Al-Furooq by Al-Qaraafee, 2/81.
51 Al-Majmoo' Sharh Al-Muhadhab, 11/15.
52 Al-Mughnee, 5/139.
53 Al-Insaaf, 6/193.
54 Ibid, 6/193.
55 Tuhfat Al-Muhtaaj, 5/217; Asnaa Al-Mataalib, 2/225 and Al-Manthoor on Juristic Rules,

2/335.
56 Al-Majmoo' Sharh Al-Muhadhab, 11/15.
57 Al-Insaaf, 6/193.
58 Tahdheeb As-Sunan, 6/339.
59 Al-Muhallaa, 8/140.
60 Al-Ikhtiyaaraat Al-Fiqhiyyah, p. 165.
61 I'laam Al-Muwaqqi'een, 1/324.

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Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

This opinion is supported by the hadeeth reported by Al-Bukhaaree62


on the authority of Anas (may Allah be pleased with him), "The Prophet
(may Allah's peace and blessings be upon him) was with one of his
wives when another wife sent him some food in a plate. The wife with
whom the Prophet (may Allah's peace and blessings be upon him)
struck the hand of the servant and the plate dropped and broke. The
Prophet (may Allah's peace and blessings be upon him) collected the
pieces of the plate and the food and said, 'Your mother has got jealous'.
He told the servant to stay and brought a plate from the house of the
wife with whom he was and sent it to his wife whose plate was broken
and kept the broken plate in the house where it was broken."
According to At-Tirmidhee's narration 63 , "The Prophet (may Allah's
peace and blessings be upon him) said, 'food for food and a plate for a
plate.'"
Ibn Al-Qayyim argues that Uthman and Ibn Mas'ood judged that he
who causes the death of two young camels for someone should return
two similar young camels. The same judgement was applied by Shuraih
and Al-Anbaree and was advocated by Qataadah and Abdullah bin
Abdur-Rahman Ad-Daarimee. He adds that this is the right ruling, since
those who contend that the value should be returned do not have any
evidence based on a textual proof, consensus or analogy. 64
4. Repentance from this Type of Unlawful Earnings
a. Repentance with the Possibility of Returning the Property
If it is possible to return these unlawful earnings without mutual
agreement, there is no difference among scholars that no repentance
may take effect unless they are returned to their original owner. 65
This ruling is derived from various textual proofs; the most
important ones cited by scholars are two:

62 Reported by Al-Bukhaaree, no. 5225, Ahmad, no. 11616 and no. 13361, An-Nasaa'ee,
no. 3955, Abu Daawood, no. 3567, Ibn Maajah, no. 2334, Al-Daarimee, no. 2598 from
Hameed At-Taweel on the authority of Anas bin Maalik.
63 At-Tirmidhee, no. 1359 from Hameed At-Taweel on the authority of Anas bin Maalik.
64 I'laam Al-Muwaqqi'een, 1/324.
65 Bidaayat Al-Mujtahid, 2/317; Maraatib Al-Ijmaa' by Ibn Hazm, p. 59 and At-Tamheed by

Ibn Abdul Barr, 2/23-24.

20 Al-Adl (38)
Dr. Khaalid bin Abdullah Al-Muslih

1. Ahmad66 and others67 reported from Al-Hassan from Samurah


that the Prophet (may Allah's peace and blessings be upon him) said, "A
hand is burdened with what it has taken until it returns it."
2. Ahmad68 and Abu Daawood69 reported from As-Saa'ib bin Yazeed
from his father from his grandfather that the Prophet (may Allah's peace
and blessings be upon him) said, "Do not take the property of others
jokingly nor seriously, and if any of you takes his brother's stick, he
should return it to him."
2. Repentance with the Impossibility of Returning the Property
If it is not possible to return these unlawful earnings without mutual
agreement to their original owner, two arguments have been cited as to
repentance from them, as follows:
a. The repentance of the earner of this type of property may not be
accepted unless he returns it to its original owner. If it is impossible to
return it, there is no chance for his repentance to be accepted and he has
to have his recompense on the Day of Judgement by having the owner's
property take from his good deeds or burden him with his bad deeds.
Therefore, he should do good deeds as much as he can to be able to pay
back for what he has usurped. This is the view held by some scholars. 70
In support of this point of view, they cite the hadeeth reported by
Muslim71 and others on the authority of Abu Hurairah that the Prophet
(may Allah's peace and blessings be upon him) said, "Prayer without
ablution will not be accepted, nor will charity given from booty of war

66 No. 19228.
67 Reported by Abu Daawood, Book of Sales, part on guaranteeing borrowed items, no.
3091; At-Tirmidhee, Book of Sales, part on the returned borrowed items, no. 1187 and
Ibn Maajah, Book of Borrowings, no. 2391. At-Tirmidhee commented on it as a good and
authentic hadeeth. Al-Haakim, 2/55 said, 'It is authentic according to Al -Bukhaaree's
conditions." However, Ibn Hazm says in Al-Muhallaa (9/172) that it is weak because Al-
Hassan did not meet with Samurah.
68 No. 17262
69 Reported by Abu Daawood, Book of Morals, part on the person who takes something

jokingly, no. 4350 and At-Tirmidhee, Book of Inflictions, Impermissibility for a Muslim
to terrify another Muslim, no. 2086.
70 Fath Al-Baaree, 3/278-279 and Muraa'aat Al-Mafaateeh, 2/20-21.

71 No. 224.

Al-Adl (38) 21
Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

which is taken unlawfully." Other hadeeths with similar meanings also


offer support to this point of view.
The apparent meanings of the above hadeeth and others indicate that
giving these unlawful earnings in charity will not benefit the earner.
Therefore, his repentance may not be accepted unless he returns the
property to its original owner.
Ibn Al-Arabee writes, "Charity from unlawful money is unacceptable
and [the person who earns such money] deserves punishment just as
[one who offers] the prayer without ablution." 72
The argument here is that the Prophet's statement, "nor will charity
given from booty of war which is taken unlawfully" indicates that the
"the conscience of the usurper of a property will not be relieved unless
and until he returns the said property to its original owner; and this
cannot be realised by simply giving it in charity if he cannot identify the
owner." 73 The reason for this is that the booty of war is the sole right of
the victorious warriors, and if they are not known, the usurper has no
right dispose of it in charity to others. 74 This ruling applies to all
unlawful earnings of this type.
The reason for exemplifying unlawful earnings like the value of
wine, wages for adultery, usury, theft and the like by usurpation is that
war booties are the right of all Muslims. Therefore, if it is not acceptable
to give in charity something in which he has a part of right, it is for the
more reason not acceptable to give in charity something in which one
has no right. 75
However, the above argumentation has been refuted thus: "The
usurper who gives the usurped property in charity although he is able to
return it to its owner or gives it in charity as an act of worship as if he is
giving his own property in charity will not be accepted from him.
However, if he gives the usurped property in charity because he does
not know its original owner or because it is not possible to return it to

72 Muraa'aat Al-Mafaateeh, 2/20-21.


73 Commenting on Fath Al-Baaree, 3/279, Sheikh Ibn Baaz said, "This is the original copy,
namely without 'not'. It seems that 'he should not give it in charity'." Our sheikh Ibn
Uthaymeen said, "This is the apparent meaning."
74 Fath Al-Baaree, 3/278-279.
75Muraa'aat Al-Mafaateeh, 2/21.

22 Al-Adl (38)
Dr. Khaalid bin Abdullah Al-Muslih

him, he is then giving it in charity, for he feels the twinge of sin of


keeping it" 76
Abu Haamid Al-Ghazaali writes, "The statement that no charity may
be given except from good earnings applies only if we are seeking to be
rewarded. As for the case of giving a usurped property in charity, we
are seeking to release ourselves from an unlawful earning rather than to
be rewarded." 77
The advocates of the view that the repentance of the earner of these
unlawful earnings may not be accepted unless and until he returns them
to their original owner argue that these are the rights of human beings
which they are keen to have, and therefore, they should be returned to
them either in this life or in the hereafter.
In refutation of this argument, it has been argued that returning the
usurped property is mandatory if it is possible to do so. It is not
mandatory to return a property whose owner cannot be identified
because it is not possible to do so. Moreover, keeping such a property is
unlawful, and there is no way to get rid of the sin associated with it
except by giving it in charity; for if it is not given in charity, it will be
useless, which is also impermissible because failure to do so does harm
to the owner, the poor and the earner alike. 78
However, the advocates of the last point of view differ as to what to
do with the usurped property.
A group of scholars said that they are the same as a lost property,
and hence should be given to the treasury to be kept for its owner
perpetually. This is the point of view of some Shaafi'ite scholars. 79
However, some scholars contend that it is the established opinion of
Ash-Shaafi'ee. 80

76 Majmoo' Al-Fataawaa, 29/263. Our sheikh said, "This is correct because it is different
from giving charity from one's own property. However, he is rewarded because he
wished to repent."
77 Ihayaa' Uloom Ad-Deen, 2/131.
78 Madaarij As-Saalikeen, 1/419-421.
79 Asnaa Al-Mataalib, 4/98; Haashiyat Qalyoobee and Umairah, 2/34 & 3/41 and Tuhfat Al-

Muhtaaj, 5/360.
80 Majmoo' Al-Fataawaa, 28/592 and Jaami' Al-Uloom wal Hikam, 1/268.

Al-Adl (38) 23
Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

Al-Fudhail bin Iyaadh contends that the unlawful property should


be destroyed rather than given in charity because only good earnings
can be given in charity. 81
However, this contention has been refuted by stating that if it is
endowed or destroyed, it is then kept or made useless, which only leads
to harm to the owner, the poor and the earner. For the owner, he has
been deprived of his right in his property; for the poor, they have been
deprived of benefiting from it and for the earner, he has given no chance
to release himself from the sin he has committed and for which he is
going to be held accountable on the Day of Judgement. Such a
disposition is not permissible or even obligatory according to any
Sharee'ah, since the Sharee'ah is based on realizing people's interest to the
maximum extent possible and reducing harms to the minimum extent
possible. Therefore, keeping the property idle or destroying constitutes a
clear harm and no benefit may be derived from doing so.82 Moreover,
doing so leads to wasting properties and benefits which Allah and His
Messenger have commanded us to maintain.83
2. The earner of these unlawful earnings can repent from them.
However, advocates of this opinion differed as to how to repent as
follows:
a. The earner should give the unlawful earnings in charity on behalf
of their original owners who, if they appear or if it is possible to return
them to them, are given the option of either approving the act of charity
or obliging the usurper to return them to them. This is the contention of
Abu Haneefah84 , Maalik85 , Ahmad86 and others87 .

81 Kitaab Al-Wara', p. 147; Jaami' Al-Uloom wal Hikam, 1/268 and Madaarij As-Saalikeen,
1/418.
82 Madaarij As-Saalikeen, 1/419. See also Majmoo' Al-Fataawaa, 28/596.

83 Reported by Al-Bukhaaree, Book of Manners, part on disobedience to parents is a

major sin, no. 5518 and Muslim, Book of Judgements, part on forbiddance to ask many
questions in religion, no. 3238, as narrated by Al -Mugheerah bin Shu'bah that the
Prophet (may Allah's peace and blessings be upon him) said, "Allah has forbidden you (
1 ) to be undutiful to your mothers (2) to withhold [what you should give] or (3) demand
[what you do not deserve], and (4) to bury your daughters alive. And Allah dislikes that
you talk too much about others, ask too many questions [in religion], and waste y our
property."
84 Haashiyat Ibn Abideen, 4/283.

24 Al-Adl (38)
Dr. Khaalid bin Abdullah Al-Muslih

To support their point of view, advocates of this opinion give the


following textual proofs:
1. Allah attached religious duties to capability: "Fear Allah as much
as you can." 88 Therefore, the duty of returning the property whose
owner cannot be identified is dropped. 89
2. This is the view of a group of the companions of the Prophet (may
Allah's peace and blessings be upon him) like Ibn Mas'ood, Mu'aawiyah
and Hajjaaj bin Ash-Shaa'ir. It is reported that Ibn Mas'ood bought a
slave-girl from a man and went into his house to bring him the price; but
did not find him when he went out. He waited for him until he
despaired of seeing the man again. He then gave the price of the slave-
girl in charity saying, "O Allah! This is for the owner of the slave-girl. If
he accepts it, the reward is his and if he comes back, the reward is mine
and he shall have a similar amount of rewards from my good deeds [on
the Day of Judgment]."
A man secretly took part of the war booties but he repented and
brought the things he took to the commander of the army, but the latter
did not accept it from him on the pretext that he could give each one of
the soldiers his share after they had dispersed. He came to Hajjaaj bin
Ash-Shaa'ir and said, "O man! Allah knows the names and lineages of
soldiers. Pay a fifth of of the booty to the one who is entitled to it and
give the balance in charity and Allah will reward them for it." The man
did so. Mu'aawiyah knew about the story and said, "Had I given you a
similar fatwa, it would have been better for me than half my treasures." 90
3. This is used by analogy to a lost property whose owner cannot not
be identified after the one who finds has publicised it and does not wish
to keep it and thus gives it in charity; and if its owner appears, he may

85 Adh-Dhakheerah, 6/28 and Al-Kharshee 'alaa Mukhtasar Khaleel, 2/211.


86 Al-Furoo', 2/666; Al-Insaaf, 5/188 & 6'212-213 and Mataalib Ulee An-Nuhaa, 4/67.
87 Majmoo' Al-Fataawaa, 29/245; I'laam Al-Muwaqi'een, 2/35; Al-Qawaa'id by Ibn Rajab, p.

226; Fataawaa Ibn As-Salaah, 1/401 and Al-Muhallaa, 1/69.


88 At-Tagaabun, 64:16.
89 Majmoo' Al-Fataawaa, 29/262-263. Our sheikh said that it is dropped due to

incapability.
90 Madaarij As-Saalikeen, 1/419-421. See also Majmoo' Al-Fataawaa, 29/321.

Al-Adl (38) 25
Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

give him the option of either paying its value or accepting the reward for
it.
Scholars said that the property whose owner is unknown is legally
non-existent. As long as the owner is unknown, he is considered as if he
is non-existent. Therefore, the property whose owner is unknown cannot
be left unused because doing so is a waste of money, which is obviously
a type of harm to the owner, the poor and the one who has usurped it.
Neither the owner nor will make use of it if not given in charity. 91
Another group of scholars argue that the earner should deliver these
unlawful earnings to the treasury to be expended for the various
interests of Muslims. This is the point of view of the Shaafi'ites. 92
They argue that the ruler knows best in which ways to dispose of
these unlawful earnings, and hence has more authority than the usurper
to expend them. Therefore, the usurper has to give them to the
treasury.93
The preponderant view is that the usurper may repent from
obtaining these unlawful earnings and that, according to the majority of
scholars, he has to give these earnings in charity for the public interests
of Muslims. He also has to seek the best sources of living because
without following such ways, his repentance will be of no avail if he
continues obtaining unlawful earnings.94
3. Relieving the Earner's Conscience by Returning the Unlawful
Earnings to their Owner's Heirs
Scholars are divided into two parties in this regard:
a. The Hanafites95 , the Shaafi'ites96 and the Hanbalites97 are of the
opinion that the earner's conscience is relieved in this life and in the life
to come if he returns the unlawful earnings to their owner's heirs. They

91 Madaarij As-Saalikeen, 1/419-421.


92 Al-Majmoo' Sharh Al-Muhadhab, 9/428-429; Haashiyat Qalyoobee and Umairah, 3/41 and
Tuhfat Al-Muhtaaj, 5/360.
93 Adh-Dhakheerah, 6/28 and Al-Majmoo' Sharh Al-Muhadhab, 9/322.
94 Al-Majmoo' Sharh Al-Muhadhab, 9/426; Majmoo' Al-Fataawaa, 29/241 and Al-Adaab Ash-

Shar'iyah, 1/78-80.
95 Al-Mabsoot, 2/495 and Durar Al-Hukkaam Sharh Majalat Al-Ahkaam, 6/327.
96 Tuhfat Al-Muhtaaj, 10/244; Mughnee Al-Muhtaaj, 4/440 and Asnaa Al-Mataalib, 4/357.
97 Al-Insaaf, 12/58 and Kashaaf Al-Qinaa', 6/425.

26 Al-Adl (38)
Dr. Khaalid bin Abdullah Al-Muslih

argue that he has paid the money back to the one who is entitled to it,
and hence he is released of the sin associated with it. 98
b. Some of the disciples of Maalik and Ahmad contend that the
earner is released in this life but not in the hereafter if he returns the
unlawful earnings to the heirs of the owner. 99 They argue that he has
deprived the owner of the property from using it all his life, which is a
type of harm the owner could not remedy during his life but his heirs
could.
To be more accurate, the case needs to be elaborated. It can be said
that if the property is kept intact and its owner claims it all his life
without being able to restore it, the right of claim moves to his heirs in
this life and the life to come because they are entitled to it by way of
inheritance. However, if the property is wasted during the life of its
owner, the heirs have no right to claim it in the hereafter because it is
wasted before the right to claim it moves to them.
Ibn Al-Qayyim writes, "If the inheritor is able to claim and recover
his property but he does not get it until the property moves to his heirs,
the claim for it moves to the heirs in the hereafter as it does in this life.
However, if he cannot not claim his property and recover it, he has the
right to claim it in the hereafter. This is the best way of handling this
issue. If the property is wasted by the usurper and the inheritor cannot
recover it, it is like his slave who has been killed by someone, his house
which has been burned down by someone and his food which has been
eaten by someone. In this case, it is wasted against the inheritor rather
than the heirs, and hence it is the inheritor's right to claim it in the
hereafter. It is the inheritor's property which the usurper should pay
back to him any time. It remains to be said that if the property is an
estate or a piece of land that remains intact after the death of its owner, it
is the property of the heir which the usurper should return to him at all
times. However, if the heir fails to recover it in this life, he has the right
to claim it in the hereafter as he does in this life." 100

98 Mataalib Ulee An-Nuhaa, 4/69.


99 Al-Adaab Ash-Shar'iyah, 1/78-80 and Ad-Daa' wa Ad-Dawaa', p. 258.
100 Ad-Daa' wa Ad-Dawaa', p. 258.

Al-Adl (38) 27
Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

Based on the above, a usurper who deprives the owner from using
his property will have sins commensurate with the amount of injustice
he has committed, even if he returns the property to its owner.101 This
argument is supported by the hadeeth reported by Al-Bukhaaree102 on the
authority of Abu Huraira (may Allah be pleased with him) that the
Prophet (may Allah's peace and blessings be upon him) said, "Whoever
has wronged his brother should ask for his pardon [before his death], as
[in the Hereafter] there will be neither a dinar nor a dirham. [He should
secure pardon in this life] before some of his good deeds are taken and
paid to his brother, or, if he has done no good deeds, some of the bad
deeds of his brother are taken to be loaded on him [in the Hereafter]."
Ibn Abideen writes, "The preferred view is that the claim for
indemnity for injustices is the right of the person who dies without
being able correct the wrong done against him and the claim for debts is
the right of the heir." 103
Ibn Taymiyah comments on the above hadeeth thus: "The Prophet
(may Allah's peace and blessings be upon him) states that if someone
usurps something from its owner, the wronged person may claim it and
if he is repaid part of his property, it is for the heirs in this life and the
unpaid part is his right to claim in the Hereafter." 104
II. Unlawful Earnings with Mutual Agreement
1. Types of Unlawful Earnings with Mutual Agreement
Unlawful earnings obtained through mutual agreement including
financial transactions and compensations like the value of wine, dead
animals and narcotics, unlawful charges for singing, sorcery, adultery
and perjury or revenues of unlawful transactions like forbidden shares
and the like can be divided into two types, as follows:105
a. A property or a benefit that is permissible in its own right but
impermissible for the intention behind it such as selling grapes for
someone who will make them into wine, selling a weapon to someone

101 Al-Ikhtiyaaraat Al-Fiqhiyyah, p. 166.


102 Book of Riqaaq, part on repatriation on the Day of Judgement, no. 6053.
103 Haashiyat Ibn Abideen, 4/283.
104Majmoo' Al-Fataawaa, 30/377.
105 Majmoo' Al-Fataawaa, 29/308.

28 Al-Adl (38)
Dr. Khaalid bin Abdullah Al-Muslih

who will use it in fighting against Muslims, and the like. Hence, the
transaction is originally permissible but it becomes unlawful because of
the intention behind it.
b. A property or a benefit that is unlawful in its own right such as
the dower paid to a whore and a sum of money paid for wine. This type
of unlawful transactions cannot be completed because the object of the
contract is unlawful. However, if the contract is executed and the price is
received, the seller may not be given back his commodity because this
will lead to further corruption.
Ibn Al-Qayyim writes, "It is illegal to return the property to the seller
and allow him to keep the value at the same time, for this will add to his
corruption and mischief. What would an adulterer do if he knows that
he will satisfy his desire and at the same time recover his money? The
Sharee'ah strictly forbids such practice and no one should argue in its
favour, for it combines injustice, abomination and deception. More
abominable yet is when the adulterer gets what he wants from the
adulterous woman and then forces her to give him the money he has
paid her. Anyone with common sense would perceive the ignominy of
such an act, and no law would allow it. Therefore, it is unlawful for
someone to enjoy such earnings, for they is considered bad due to the
fact as the Prophet (may Allah's peace and blessings be upon him)
described it once. In fact, it is considered as such for the simple reason
that the way through which it is earned is unlawful." 106
2. Ownership of this Type of Unlawful Earnings
The ownership of this type of unlawful earnings is of two types:
a. If the earner believes that these earnings are lawful or does not
know that they are unlawful, the part of the price he has received
becomes his property but the other part he has receives after knowing its
illegality is not to be considered his property. 107 This is supported by the
Qur'anic statement, "Allah has permitted trading and forbidden usury.
So whosoever receives an admonition from his Lord and stops eating
usury shall not be punished for the past; his case is for Allah [to

106 Zaad Al-Ma'aad, 5/779. See also Madaarij As-Saalikeen, 1/422.


107 Refer to Majmoo' Al-Fataawaa for details, 29/411-412.

Al-Adl (38) 29
Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

judge]." 108 Therefore, anyone who does not know that doing or not
doing something is prohibited may not be punished for doing or not
doing it, and if he acquires anything unlawful he may keep what he has
already acquired before knowing it to be prohibited.
Sheikh Abur-Rahmaan bin Sa'dee writes, "Allah the Almighty does
not enjoin returning what a usurer has received under the usury
contract after repenting; rather He enjoins not taking the part of usury
he has not received. The usurer has received it with the consent of the
owner, and hence it is dissimilar to the case of usurpation. This is meant
to make it easy for usurers to repent because repentance is not
dependent on returning past earnings although they may be many." 109
Ash-Shanqitee comments, "The Qur'anic statement means that Allah
does not punish anyone for doing anything unless and until He has
made it unlawful for him to do so. This meaning is clear in many verses:
For those who used to drink wine and engage in gambling before these
acts were prohibited, Allah says, "Those who believed and did good are
not held accountable for what they had acquired." 110 For those who were
in the habit of marrying their father's wives before they were prohibited
to do so, Allah says, "Do not marry women whom your fathers ever
married except what has already happened."111 Similar to this verse is
the one that says, "You are not allowed to keep two sisters together [in
marriage] except what has already happened in the past." 112 For hunting
game while in a state of pilgrimage, He says, "Allah has pardoned what
you had already done." 113 For directing one's face to Jerusalem in prayer
before doing so was abrogated, He says, "It is never Allah's purpose to
let your your faith go vain." 114
The clearest textual evidence in this regard is that when the Prophet
(may Allah's peace and blessings be upon him) and Muslims prayed for
the forgiveness of their dead polytheist relatives and the verse " It is not

108 Al-Baqarah, 2:275.


109 Al-Fataawaa As-Sa'diyyah, p. 303.
110 Al-Maa'idah, 5:93.
111 An-Nisaa', 4:22.
112 An-Nisaa', 4:23.
113 Al-Maa'idah, 5:95
114 Al-Baqarah, 2:143.

30 Al-Adl (38)
Dr. Khaalid bin Abdullah Al-Muslih

proper for the Prophet and those who believe to ask Allah's forgiveness
for the polytheists even though they be of kin, after it has become clear
to them that they are the dwellers of the Fire (because they died in a
state of disbelief)" 115 was revealed, they regretted what they had done,
Allah revealed, "And Allah will never lead a people astray after He has
guided them until He makes clear to them as to what they should
avoid." 116 Therefore, Allah made it clear that He will never lead a people
astray for doing something until He makes clear to them what to do and
what not to do." 117
Commenting on the Qur'anic statement: "Allah has permitted
trading and forbidden usury. So whosoever receives an admonition
from his Lord and stops eating usury shall not be punished for the past;
his case is for Allah [to judge],"118 Al-Jassaas writes, "This means that
those who stopped taking usury after it had been made forbidden might
keep what they had taken before prohibition was established but not
what they had not taken, as indicated by the Qur'anic statement states,
"O you who believe! Fear Allah and give up what remains [due to you]
from usury [from now onward], if you are truly believers." 119 Allah has
made illegal any portion of usury that was not received by the usurer
even if it had been contracted for before prohibition. However, any
portion of usury taken before prohibition was permitted to be kept, as
Allah says, "… for the past; his case is for Allah [to judge]."120 As-Suddee
and other Qur'an exegetes have provided a similar interpretation.
Allah also says, "O you who believe! Be afraid of Allah and give up
what remains (due to you) from usury [from now onward], if you are
truly believers." 121 This means that any portion of usury that had not
been taken should not be received and any portion taken before
prohibition was clearly established was not obligatory to return after
knowing that it was prohibited. The above verse is followed by the

115 At-Tawbah, 9:113.


116 At-Tawbah, 9:115.
117 Adhwaa' Al-Bayaan, 1/1881.
118 Al-Baqarah, 2:275.
119 Al-Baqarah, 2:278.
120 Al-Baqarah, 2:275.
121 Al-Baqarah, 2:278.

Al-Adl (38) 31
Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

verse: "But if you repent, you shall have your capital sums," 122 which
makes unlawful any portion of usury which had not been taken after
knowing it to be prohibited.
It is reported on the authority of Ibn Umar and Jaabir that the
Prophet (may Allah's peace and blessings be upon him) said in the
speech he delivered during the Farewell Pilgrimage, "All cases of usury
during the time of Jahiliyyah (pre-Islamic period of ignorance) is
annulled and under my feet, and the first case of usury I annul is that of
Al-'Abbas bin Abdul-Muttalib." This hadeeth confirms the ruling given in
the above verse, namely that any sums of usury that had not been taken
should be left and that any sums that had been taken should not be
returned.123
This case also includes the property which the earner believes to be
lawful based on justifiable interpretations like some transactions which
are considered lawful by some scholars and unlawful by others or
deceitful exchanges some of which are considered lawful by some
scholars. If these earnings have been obtained by the earner believing
that they are lawful, he can keep them even if the fatwa changes.124
b. If the earner believes and knows that these earnings are
unlawful125 , there is no difference among scholars that they do not
become his property126 as stated hereinabove. However, if the earner
receives an amount of money under an invalid contract like usury,
gambling or the price of wine, his ownership of the value of these
earnings is a point of difference among scholars, as follows:
1. Receiving these unlawful earnings means that they are no longer
the property of the one who gives them if the latter has done so with his

122 Al-Baqarah, 2:279.


123 Majmoo' Al-Fataawaa, 29/412-413 and Al-Ikhtiyaaraat Al-Fiqhiyyah, p. 167. Our sheikh
said, "This is the correct view because he believes that it is lawful and the contract has
been concluded. Even if he finds out later on that the contract is invalid, he is excused for
that because he is applying what scholars have told him to do."
124 Ahkaam Al-Qur'aan by Al-Jassaas, 2/190.
125 Majmoo' Al-Fataawaa, 29/411.
126 Badaa'i' As-Sanaa'i', 5/299; Al-Fawaakih Ad-Dawaanee, 2/130-131; Rawdhat At-Taalibeen

wa Umdat Al-Mufteen, 3/408 and Al-Insaaf, 4/362.

32 Al-Adl (38)
Dr. Khaalid bin Abdullah Al-Muslih

own consent. This is the Hanafites' view,127 one of Ahmad's opinions128


chosen by Ibn Taymiyah. 129
2. The earner's acquisition of these unlawful earnings does not mean
ownership at all, be it with the consent of the original owner or not. This
is one of the Hanafites' views130 , the established view of the Maalikites131 ,
the Shaafi'ites132 , the Hanbalites133 and Dhaahirites134 .
I think that these unlawful earnings are no longer the property of
their original owner if he consents to give them while he knows that
they are forbidden or corrupt as he has, with his own consent, given the
earner the opportunity to take them. There is a big difference between
this case and the case of the owner whose property is taken without his
consent.
Ibn Al-Qayyim writes, "A property [and the equal value] received
under a corrupt contract should be mutually returned by the two parties
as the case with usury contracts according to the opinion which argues
that anything received under a corrupt contract cannot be acquired.
However, if the property is damaged while still in the possession of the
one who has received it, the compensation paid for it should not be
returned to him, for he cannot be given the right to the property and the

127 Badaa'i' As-Sanaa'i', 5/299; Sharh Fath Al-Qadeer, 6/459 and Kashf Al-Asraar, 1/267.
They distinguish between invalid and corrupt contracts; the first one does not
substantiate ownership while the second one does.
128 Ahkaam Ahl Adh-Dhimma by Ibn Al-Qayyim, 1/575 and Al-Insaaf, 4/362. Our Sheikh

said, "The apparent ruling is that if he is able to return the property, he should do so, but
if he is unable to return it, the ownership is transferred and he can sell it."
129 Al-Furoo', 6/449; Al-Insaaf, 11/213-214; Kashaaf Al-Qinaa', 3/134. In Al-Insaaf, 4/473

we read, "He writes in Al-Faa'iq, our Sheikh said, 'The preponderant view is that he may
own it under a corrupt contract.'" See Majmoo' Al-Fataawaa, 29/292 & 327.
130 Ahkaam Al-Qur'aan by Al-Jassaas, 2/245 and Badaa'i' As-Sanaa'i', 5/299.
131 Al-Furooq by Al-Qaraafee, 2/83 and 3/208 and Al-Fawaakih Ad-Dawaanee, 2/130-131.

Some scholars elaborated on this issue thus: "The earner's acquisition of unlawful
earnings indicates ownership if they change or if their market value change; otherwise, it
does not mean ownership; rather it remains the property of its original owner.
132 Rawdhat At-Taalibeen wa Umdat Al-Mufteen, 3/408.
133 Al-Mughnee with Commentary, 4/287 and Al-Insaaf, 4/362. Our Sheikh said, "The

apparent ruling is that if he is able to return the property, he should do so, but if he is
unable to return it, the ownership is transferred and he can sell it."
134 Al-Muhallaa, 8/421.

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Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

compensation he has already paid it for it. An adulterer, a homosexual,


the person who listens to singing wailing have paid money with their
full consent and have thus received the unlawful benefit and such
benefit has been used up. The rule is that if the compensation is to be
returned, the benefit for which the compensation is paid should also be
returned, which is impossible in this case. Moreover, the person from
whom the benefit has been taken will be harmed if the compensation is
also taken from him, which is different from the case if the
compensation is a pig or a dead animal, which does not entail any harm
if forfeited; and even if it is kept, we would destroy it. If the benefit from
singing and wailing is not forfeited, he will have it available for another
purpose, namely the energy he uses to do so." 135
However, it should be said that as long as consent and permission
are not enough for the transfer of ownership in all cases 136 , the earner in
this case does not benefit from acquiring such a benefit like the person
who acquires lawful benefits because there is no equality whatsoever
between what is good and what is bad. Therefore, the earner of this type
of unlawful things should dispose of them by giving them in charity, for
they are a type of specific ownership rather than a general one, and
disposal is a type of action that cannot be taken unless there is some sort
of acquisition. In other words, real acquisition is characterised by the
ability to dispose of what one has.137
This view is supported by the hadeeth reported byAl-Bukhaaree and
Muslim 138 on the authority of Abu Humaid As-Saa'idee (may Allah be
pleased with him) who said, "The Prophet appointed a man from the
tribe of Al-Azd, called Ibn 'Utbiyyah for collecting the Zakat. When he
returned he said, 'This (i.e. the Zakat) is for you and this has been given
to me as a present.' The Prophet said, 'Why hadn't he stayed in his
father's or mother's house to see whether he would be given presents or
not? By Him in Whose Hands my life is, whoever takes something from

135Ahkaam Ahl Adh-Dhimmah by Ibn Al-Qayyem, 1/575.


136 Al-Furooq by Al-Qaraafee, 2/86 & 3/208.3
137 Ahkaam Al-Qur'aan by Al-Jassaas, 2/190 and Al-Furoo', 3/408.

138 Reported by Al-Bukhaaree, Book of Gifts, part on not accepting gifts for a cause, no.

2407 and Muslim, Book of Governors, part on prohibiting giving presents to employees,
no. 3414.

34 Al-Adl (38)
Dr. Khaalid bin Abdullah Al-Muslih

the resources of the Zakat [unlawfully] will be carrying it on his neck on


the Day of Resurrection; if it be a camel, it will be grunting; if a cow, it
will be mooing; and if a sheep, it will be bleating.' The Prophet then
raised his hands till we saw the whiteness of his armpits, and he said
thrice, 'O Allah! Haven't I conveyed Your Message [to them]?'"139
3. How to Repent from This Type of Unlawful Earnings
Scholars have differed as how to repent from unlawful earnings
acquired under corrupt contracts which include an unlawful property or
benefit after receiving the property or benefit and the equal value for it.
Their views can be summed up in two arguments, as follows:
a. The earner should return the unlawful earnings to their owner, for
they are his own property for which he has received no lawful benefit. 140
b. The earner is not obliged to return the unlawful earnings to their
original owner; he has to give them in charity. As already stated, the
owner should not acquire both the unlawful benefit and the money he
has paid for it, as this will help mischievous people and it is contrary to
Islamic legislation.
In refutation of this view, it has been argued that these unlawful
earnings remain the property of their original owner because they have
been transferred to another person under corrupt contracts.
However, the advocates of the above opinion replied quoting the
statement of Ibn Al-Qayyim thus: "Suppose the property is not owned
by the earner, the right of acquisition by the original owner has
terminated as a result of giving it to the earner and he receives the

139Fath Al-Baaree, 13/167.


140Madaarij As-Saalikeen, 1/422. Ibn Taymiyah implies this meaning. In Majmoo' Al-
Fataawaa, 29/307, "He was asked about a usurer who left behind some property and a
son who knew about his father's practices. Would it be permissible for him to acquire the
inheritance from his father?" He replied, "The amount of property the son knew to be the
product of usury should be either returned to its owners if possible; if this is not
possible, he may give it in charity and keep the amount which is permissible." This
statement is somehow problematic for returning usurious amounts, though they are
compensations, to their owners gives them the benefit of keeping the benefit and the
compensation at the same time. I have read this statement to our Sheikh Ibn Uthaimeen
on Monday, 30.11.1412 AH and he commented, "This statement is not like the words of
Ibn Taymiyah because he is of the opinion that the money should not be given back to a
usurer based on analogy."

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Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

corresponding benefit. How could it then be said that the original owner
still acquires it and that it should be returned to him? This is different
from instructing the earner to give the money in charity because he has
earned it based on an invalid contract with the consent of its original
owner who has accepted to remove it from his own acquisition.
Therefore, the best way to dispose of it is to give it for a purpose that is
beneficial to people to get rid of the sin he has committed." 141
Ibn Al-Qayyim adds, "The ruling as to the fact that it is considered
bad does not mean that it is obligatory to return it to the one who has
given it because the Prophet (may Allah's peace and blessings be upon
him) ruled that the earnings of the cupper142 are bad but does not oblige
him to return them to the one who gives them to him." 143
Ibn Taymiyah contends that this is the preponderant opinion thus,
"It is like giving a whore a dower with the consent of the giver which
should be given in charity rather than given back to the adulterer. This
also applies to the money paid for wine and similar things which are
used by the taker. Therefore, the user of the benefit should not be given
back the money he has paid for such a benefit because it is not
permissible for him to have both the benefit and his money back at the
same time." 144
In another place, he writes, "The money paid to the whore and the
price paid for wine are not the right of the earner before he receives
them. However, as soon as he receives them, he should not be obliged to
pay them back to their original owner. Moreover, such money is not
permissible for the whore and the wine seller to use. They should give it
in charity for purposes that fulfil the interests of Muslims." 145

141 Madaarij As-Saalikeen, 1/422.


142 The complete text of this hadeeth is as follows: "The worst earning is the earning of a
prostitute, the price of a dog and the earning of a cupper." This haddeth is reported by
Muslim, no. 1568 and others from Al-Saa'ib bin Yazeed on the authority of Raafi' bin
Khadeej.
143 Zaad Al-Ma'aad, 5/779. The topic is discussed in detail in this book and some of the

statements were quoted from Ibn Taymiyah.


144 Majmoo' Al-Fataawaa, 29/291-292.
145 Majmoo' Al-Fataawaa, 29/309.

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Dr. Khaalid bin Abdullah Al-Muslih

It should be noted that if the earner of these unlawful earnings is


poor, it is permissible for him to take from these unlawful earnings the
amount he needs. Quoting Al-Ghazaalee on unlawful earnings, An-
Nawawee writes, "He may give it in charity for his needs and the needs
of his dependents if he is poor. His poor dependents are the first who
are entitled to such money. He may also take from it the amount he
needs because he is also poor. This statement by Al-Ghazaalee on this
issue is supported by others, and I agree with them." 146
Ibn Al-Qayyim writes, "For repentance to be accepted, the unlawful
earnings should be given in charity. However, if the earner needs the
money, he can take from it the amount he needs and give the balance in
charity. This is the ruling regarding all unlawful earnings, be they a
property or a benefit." 147
Ibn Taymiyah agrees with the above view thus: "If the whore and the
wine seller repent and if they are poor, they may have the amount they
need from their earnings. If they can work as traders or craftsmen, they
can be given the amount they need as a capital. Moreover, if they
borrow some of the earnings for the purpose of earning their living from
a lawful source and then return the loan, it is better for them."
However, if the earner gives such unlawful earnings in charity,
believing that they are permissible for him to do so, he may have a
reward for such an act, but he should not believe that he is giving them
in charity as his own property because Allah does not accept charity
except from the money earned from lawful sources.

Conclusions
To conclude, I would like to state here the most important findings I have
reached as follows:
1. Unlawful earnings are the amounts of money that a person may earn or
receive through unlawful channels.
2. Unlawful earnings may be received through several channels , the most
important of which are two: amounts earned without the consent of the owner
and amounts earned with the approval of the owner and the earner.

146 Al-Majmoo' Sharh Al-Muhadhab, 9/428-430.


147 Zaad Al-Ma'aad, 5/779.

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Repentance from Unlawful Earnings and its Rulings in the Islamic Jurisprudence

3. According to the majority of scholars, unlawful amounts earned without


the consent of their owner should remain the property of their owner if they are
extant. However, if they have been exhausted or are impossible to be retrieved,
an equal amount or value should be retrieved, as the case may be. Moreover, if
the condition of such earnings changes, their ownership also changes according
to the emergent conditions that may evolve with regard to such unlawful
earnings.
4. Profits and revenues resulting from unlawful earnings received as a
result of the work done by the earner without the consent of the owner shall be
shared by the owner and the earner.
5. The guarantee for this type of unlawful earnings without the consent of
both parties is to return an equal amount as far as possible.
6. If it is possible to return the unlawful earnings without the consent of
both parties to their owner; it is unanimously agreed among scholars that the
only way to repentance is to return them to their owner.
7. However, if it is impossible for the earner to return such unlawful
earnings to their owner, he may repent by giving an equal amount earned
through legitimate channels in charity for public facilities , according to the
majority of scholars.
8. If the earner returns these unlawful earnings to the heirs of the owner but
he dies before returning them to the heirs, the heirs of the owner have the right
to such amounts of money in this life and in the hereafter.
9. Unlawful earnings with the consent of both parties can be classified into
two types: 1) an originally permissible property or a benefit that has become
unlawful based on the intent behind them; the property remains permissible
but the intent renders them impermissible, and 2) an originally unlawful
property or benefit which may not be judged to be the property of the earner.
10. The earner of an unlawful property can be one of two types: 1) he does
not believe that these earnings are unlawful or does not know that they are so,
in which case the property in question becomes his, or 2) he believes or knows
that it is unlawful, in which case the property becomes his only if the owner
gives it to him with his full consent.
11. It is not a prerequisite for repentance from unlawful earnings received
with the consent of both parties that unlawful earnings should be returned to
the owner. Rather, the earner should give them in charity. If the earner is poor,
he may use some of them to cater for his needs .

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