You are on page 1of 24


(ECON 3510)













1. Introduction
2. Legal Maxims And Its Application In Islamic



Commercial Transations:
1) Matters Are Determined According To Intention
2) Certainty Cannot Be Removed By Doubt
3) Hardship Begets Facility
4) Necessity

9 - 13
13 - 15
16 - 19

5) Harm Should Be Eliminated

19 - 21


Maxim is defined by the jurists as a general rule which applies to all its particulars. Legal
maxims are generally the applicable principles which relate to transactions (muamalat) and


usages in which do not change as the time, place or circumstance changes.

The Islamic legal

maxims, which is also known as qawaid al-fiqhiyyah ( ) are the theoretical

abstractions, usually in the form of short epithetical statements, that are expressive, often in a
few words, of the goals and objectives of the Shariah. 2
According to one of the most prominent contemporary scholars, Mustafa Al Zarqa, the
definition of Islamic legal maxims is the general fiqh principles which are presented in simple
format consisting of the general rules of Shariah in a particular field related to it. 3 The Islamic
legal maxims are treated by many scholars as the maqasid literature. They are statements of
principles that are derived from the detailed reading of the rules of fiqh (Islamic jurisprudence)
on various themes. These detailed expositions enabled the jurists, later on, to reduce them into
the abstract statements of principles.
The actual wordings of the maxims are occasionally taken from the Quran and Sunnah
but most of them are taken from the work of the leading fuqaha (Islamic jurists) that have
subsequently been refined by others throughout the ages. The legal maxims are designed to
facilitate a better understanding of the Shariah and their development as well as giving a better
understanding of the problems and show the application of principles to solve the problems.
These were developed mainly during the era of imitation (taqlid), as they are in the nature of

1 Dr. Muhammad Yusuf Saleem, An Introduction to The Theoretical Foundations of Islamic

Transactions (p. 34)
2 Mohammad Hashim Kamali, Qawaid Al-Fiqh: The Legal Maxims of Islamic Law (p. 1)
3 See Securities Commission Malaysia (2009), Islamic Commercial Law (Fiqh
al-Muamalat): Islamic Capital Market Series of books, Malaysia: Lexis
NexisSdnBhd, p. 70


extraction (takhrij) of guidelines from the detailed literature of fiqh that were contributed during
the first three centuries of Islamic scholarship.4

Differences between Usul al-fiqh ( ) and Qawaid al-fiqhiyah ()

Usul al-fiqh is a methodology of legal reasoning which derives legal rulings from
primary sources of Shariah which is the Quran and Sunnah. The sources are read in an honest
and unbiased manner to infer the intentions of Allah SWT. Usul al-fiqh talks about rules of
interpretation, meaning and implication of commands and prohibitions and so forth. 5 It teaches
us how to derive legal rulings from the primary sources of Islamic Law, such as the Quran and
the prophetic Sunnah. It teaches us how to read the primary sources in an honest and unbiased
manner to figure out what Allah Most High really wants from us.6
On the other hand, Qawaid al-fiqhiyah is defined as principles which summarize a
number of fiqh rules which are related to each other into maxims. It is quite important to
understand that these principles are derived from consolidated reading on various rules of fiqh
regarding various themes. They are short, epithetical expressions of Shariah goals and
objectives. It is abstract rules which are derived from the detailed study of the fiqh itself. They
consist oftheoretical guidelines in the different areas of fiqh such as evidence, transactions,
matrimonial law and so on. As such they are an integral part of fiqh and are totally separate from
usul al-fiqh.
4 Abu Umar Faruq Ahmad, Shariah Maxims and Their Implication on Modern Financial
Transaction, (p.77)

5 See also Kamali.M(n.d), Principles of Islamic jurisprudence, Islamic Text society, Cambridge
6Ibid (Karamali 2007)



Articles 2-100 of the Mejelle contains ninety nine legal maxims. However, in this report,
we only discuss on five important maxims which can be applied in Islamic commercial


Action is linked to the intention (niyyah). According to the Mejelle, matters are
determined according to intention. Intention serves as a basis for an action. Action is only the
external manifestation of intention. It is with reference to intention and motive that the true
nature of an act could be identified.7 Prophet Muhammad (PBUH) stressed the inportance of the
intention in a hadith:
"Actions are (judged) by motives (niyyah), so each man will have what he intended.
Thus, he whose migration (hijrah) was to Allah and His Messenger, his migration is to Allah and
His Messenger; but he whose migration was for some worldly thing he might gain, or for a wife
he might marry, his migration is to that for which he migrated." (Bukhari & Muslim)8
The word intention is called as An-niyyah ( )in Arabic. An-niyyah simply means the
intention in a persons heart to do something that he wants do. An-Niyyah is used to describe the

7 Dr. Muhammad Yusuf Saleem, An Introduction to The Theoretical Foundations of Islamic

Transactions (p. 35)


direction or the place that one intends to go, or the meaning that one intends to deliver. In Islamic
terminology, An-niyyah is widely used to decribe the intention of the heart to perform an action
for the sake of Allah. 9
Taking intention into consideration in whatever things that we are doing is important
since it affects the outcome of the actions. A good action can turn to evil if it is performed with
evil motives and bad. Meaning that, intention differentiates between good deeds and evils as well
as distinguishes the habitual actions from an act of worship.
In transactions, a mere inward intention does not have any legal consequences as it is not
known to others. Intention only becomes important of it comes with action. In this case, the
action will be judged according to its real intention. For example, if a person finds a certain
property and takes it with the intention to return it back to its owner, his action is considered as a
good deed. However, if his intention of taking the property is to keep the property as his own, he
is considered as violating the right of ownership and is doing an evil. The physical act; finds a
property and takes it, is identical in both cases but the consequences/effect is different according
to the intention.
Similarly, a certain transaction is judged based on intention. When the intention and the
wordings of the agreement are contradicting to each other, the consideration should be given to
the intention, not to the literal meaning of the words. According to the Majelle, in contracts, the
effect is given to the intention and meaning of doing the contact, not to the words and forms of
the contract. For instance, in a contact of lease (ijarah), the rental fee is charged while in the



contract of borrowing (iarah), there is no rental fee charged. If two person concluded a contract
as the contract of borrowing (iarah) but the borrower needs to pay some amount of money as
the rental fee, the agreement will be regarded as a contract of lease (ijarah) since the intention of
the parties and the real meaning of the contract indicate indicate that it is a contract of lease
(ijarah) even though the wording said that it is a contract of borrowing (iarah).10
A contract is considered as valid and gives effect to both parties if there is an existence of
intentions when the words are given. For example, if there are two people who do a contract by
giving a word to give a good with payment in the return and to received a good before the price
is fixed, the contract is concluded as a contract of sales and purchases. This is because the final
contract to buy or sell was intended by them and not just a meaningless verbal contract.
Therefore, all words spoken by a person who has no intention to deed, as spoken by a madman, a
drunken man or by the one who was asleep, did not give any effect and the contract will not
However, if the intention could not be ascertained, the effect should be given to the literal
meaning of the words. The rule states, We give judgement on the basis of the apparent, God
takes care of the inward intention. In this case, the intention is judged based on the words that
are used in the agreement. The Mejelle also states, in hidden matters, about which it is hard to
ascertain the truth, judgement is formed by the apparent evidence about them.12
10 Dr. Muhammad Yusuf Saleem, An Introduction to The Theoretical Foundations of Islamic
Transactions (p. 36)
12 Dr. Muhammad Yusuf Saleem, An Introduction to The Theoretical Foundations of Islamic
Transactions (p. 37)


Some Other Applications

Surety ship (kafala) implies coextensive liability while transfer of debt (hawala) implies
discharge of the principal debtor. If a contract of transfer of debt (hawala) is made with
the condition to hold the principle debtor liable in case the transferee fails to discharge
the debt, contract even though termed as a contract of hawala will be treated as contract
of kafala. Similar will be the treatment of a contract of kafala in case the principle debtor
is discharged after contract of surety ship is signed.
In case government issues a license to setup an industry, or start a trade or import some
merchandise it will not lawful to sell the license because the object of the license was the
authorization to set up an industry or trade or purchase of goods but not to make the
license itself an article of trade
If the banks declare their policy of financing their client on non-interest bases it would be
necessary to do so and not merely continue the same practice and seeking to rationalize it
in Islamic terms by changing the relevant nomenclature such as calling it buy-back or
It is not permissible for the bank to practice Mushara and Mudharaba in such a way as to
ensure a fixed rate of return for the bank while the liability of bearing loss or an uncertain
amount of remaining profit is tranferred to the working partner
If government allots plots of land to individual with the object of providing accomodation
for themselves the allottee will be allotting the implicit terms of the agreement by
converting it into a commercial or industrial site or by treating it as merchandise



Next legal maxims is certainty cannot removed by doubt. What is the definition about this
legal maxim ?This maxim provide guidance in respect of the principle, which should be adopted
in addressing prevailing issues that arises due to the existence of doubt in the underlying facts of
the matter. In essence, rules of law that are established with proven evidence will remain
applicable and relevant and will only be supersede with a new ruling that is established with a
stronger evidence . The prevailing certainty shall be accepted to remove or reject element of
doubt the co-exists in the matters under consideration. Practices that are established with
certainty will continue to be relevant and applicable until it is concretely proven otherwise. This
is due to the fact that the foundation of doubt that existed in presence of certainty is in weaker
position to nullify the latter, which was established based on substantive evidence.

Evidence and meaning of the maxim

This was developed and formulated based on several verses of the Qur'an and Sunnah.
Among others are: "but most of them follow nothing but fancy: truly fancy can be of no avail
against truth" Yunos:36) . This verse indicates and emphasize that the unbelievers continue to be
in the state of doubtful. The doubt that they encounter will not prevail over the truth or certainty
on particular matters. Therefore, those who follow Al-Zann or doubtful will never be















The prophet (S.A.W) said: "if anyone of you feels anything in his or her stomach then he is
confused of whether anything has come out of it or not, he should not go out of the masjid unless
he hears a sound or gets a smell". Imam Al-Nawawi explained that this Hadith remarked that it is
a great maxim of Islamic law that is the affairs should be judged to be on their original condition
unless the opposite is certainly proved.
If any doubt arises later this doubt would not hamper the certainty that had been
originally established for those affairs. The prophet (S.A.W) said: "if forgetfulness arises to
anyone of you in his or her Salah or prayers and he or she has doubt or not certain of whether he
or she has prayed one Rak'ah or two , he or she should consider that they have performed one
Rak'ah. Likewise if a person is not certain of whether they have actually performed three Rak'ahs
or four , he or she should consider that they have performed three , a person should prostrate
twice before he or she completed his prayer by saying the greeting ( Salam ) . This Hadith
provided the basis that certainty cannot be removed by doubt.
In the case of performing specific Ibadah that is prayer for instance , a person shall accept
that he has prayed at least one Rak'ah in the event where they are not sure or having doubt
whether they have actually performed the prayer either one rak'ah or two during the prayer. The
certainty of having prayed one Rak'ah, therefore cannot be removed by doubt that has arisen
regarding the second Rak'ah. In second case it is certain that this person has at least prayed
completed two Rak'ah of his prayer. The certainty of praying two Rak'ah is therefore cannot be
removed by the doubt that arose for the third. This Hadith essentially highlighted that there is no
room for doubt and if a person is in doubt of anything then he should disregard the doubt and be
affirmed on certainties in the matters under consideration.

~ 10 ~

The second proof according to Abbad bin Tamim who said: My uncle asked Allahs
messenger about a person who imagined to have passed something during the prayer. Allahs
messenger replied: Do not leave (from the prayer) until or unless he hears a sound or smells
Whispering from the devils (waswasa):
We should mention here, the issue regarding insinuating whispers from the devils, known
as waswasa in Arabic. Many people suffer from this illness unknowing. A person may start to
have doubt in everything: in matters of ritual purification, daily prayers, purification of the body,
purity of garments, menstruation cycles and other things. However, if this simple rule of
fiqh, certainty is not removed by doubt was applied, the confusions and all the unnecessary
actions, which stems from the insinuating whispers could be avoided. If a person is suffering
from insinuating whispers unrestrictedly in matters of belief, the cure for this is to totally ignore
these thoughts as indicated by the Prophet. However, if a person is suffering from doubts
pertaining to worship, applying this rule of fiqh would save the person from a great deal of
trouble and it would put ones heart at ease.

Conditions of the maxim

Elements of certainty that existed in the issue under consideration is fundamentally a
stronger element than doubt as the doubt over the original matter normally arises as a subsequent
event or secondary issue. The certainty in the primary matter shall always prevail over secondary
matter in view that it is more reliable, certainty element that existed in a particular matter shall
not be removed merely by doubt and therefore decisions shall be upheld based on certainty in the
underlying issue under consideration.

~ 11 ~

Application of the maxim

a) The maxim is directly applicable in the context of Ibadah and other matters as well:
In the case of loan contract, a person shall consider that he or she is still indebted to the
lender in the event where he or she is unable to provide the evidence of payment. This is
due to the fact that outstanding amount of loan will remain valid and certain as stipulated
under the contract and will only reduced by settlement amount. It is known facts that loan
of financing transaction executed with financial institutions are supported with written
evidence and proper documentation.
b) A partner has no right to assume a minimum rate of profit earned by his business partner
and claims his share in that profit as different from the amount stated to have been
actually earned by the partner. The sub-rule provides that in case the working partner
declares a certain amount of profit, no more will be presumed unless the contrary is
verified to be a fact.
c) The disagreement is about whether the defect sold item has occurred before or after the
seller deny it defective before sale , his statement is accepted because the defect is new
phenomena. Otherwise, the burden of proof shift to the buyers who has to prove that the
defect existence before the sale.
d) If a person has taken a loan from another person and is in doubt whether he is still in
debt, he is. He must be considered to be in debt until there is a prove to show otherwise.
e) If we want to invest your money to chosen company , you can do it , but if you certain
about that companys activities is legal and have prove . but once you have doubt about

~ 12 ~

it , you must get a evidences to say that companys activities is illegal. If you do not get
any prove , you may proceed with your invest.
f) If the situation is like you change supplier of your product .you must make sure you do
not have any doubt where they get the raw material and produce it . for example , food.
You want to buy raw material such as chocolate , flour to make a chocolate cake. You
must buy the raw material from halal supplier. If you certain about that suppliers product
, you can proceed to buy it. If you have any doubt later , doubt it is not counted as long as
you have prove that the company is halal company.


Hardship (mushaqqah) refers to legal excuses such like lunacy, illness, minority,
forgetfulness and ignorance. Facility (taysir) refers to legal mitigations/alternatives granted due
to hardship as an exception to the general rule.
Legal rules are applies to all individuals. In certain situations, legal rule might lead to
injustice and harm. So, this principle can be implemented in order to remove hardships and
ensure justice and fairness. When the situation gets difficult, the law becomes flexible. This
principle also means that difficulty is the cause of easiness.
This principle derived from Quranic verses in Surah Al-Baqarah :
Allah intends for you ease and does not intend for you hardship (2:185)

~ 13 ~

Allah does not give anyone legal responsibility for anything except what is
within his capacity (2:286)
Hadith :
You have not been sent like those who have been given hardship. Rather,
you have been sent as those who have been given ease or facility
(Narrated by Bukhari and Muslim)
Aishah r.a said: Whenever the Prophet (s.a.w) was given a choice between
two things he chose the easier one unless it was a sin
(Narrated by Bukhari and Muslim)
Surely Allah (s.w.t) introduced the din as easy, full with kindness, and
wide. He did not make it narrow
(Narrated by Tabarani)

Applications of Hardship Begets Facility

1. Leniency with a debtor who in financial constraints.

If a borrower is not able to settle the debt in a lump sum, he would also be permitted to
pay by installments. This is because, if the debtor pays the debt in a lump sum, he/she might
not have enough money to buy household needs. That is why this principle can be applied in
this case. If the debtor is really facing serious hardship, and the creditor just let go the debt as
charity, Allah will reward him/her.

~ 14 ~

Allah said in Quran in Surah Al-Baqarah:

If, however, (the debtor) is in straitened circumstances (grant him) a delay

until time of ease; and it would be for your own good if you knew it to
remit (the debt) entirely by way of charity. (2:280)

2. Cancellation of rental contract

If someone enters into a rental contract (ijarah) and later on he has to travel for certain
reasons, he is allowed to cancel the rental contract. Under a normal circumstance, a person is not
allowed to cancel this type of contract unless it is agreed between the contracting parties
beforehand. However, forcing a person to continue paying the rental when he is not occupying
the premise, will amount to hardship, therefore the Shariah is allowed the cancellation under
specific circumstances in order to avoid hardship. So, in this case also, this principle can be


~ 15 ~

First of all, literally this principle of legal maxim means necessities that allowed haram
things. It also can be defined as necessities that give guidelines or justifies which is unlawful or
prohibited according to Shariah. Moreover, The Mejelle states Necessity makes forbidden things
canonically harmful. It can be derived from mention definitions stated that unlawful things no
matter regarding aqidahor transaction are allowed under extreme situations (darura) given that
there are no other permissible alternative.

Furthermore, there are some listed guidelines (dabit) or certain restricted interpretation to the
extent that when this maxim is actually required. Technically, one of the guidelines is verify what
kind of case that constitutes an extreme circumstance (darura). Literally, darura means necessity
or emergency. It shows that a certain situation which is aspects of the Shariah may be suspended
in order to protectlife,religion,property,mind or offspring. It can be said that darura is
indispensable for the safeguard of the five essentials values that are mentioned earlier such as
religion, life and etc. Basically, when darura exist, it would give the believer or the follower of
Islam a legal excuse to commit the unlawful, provided that it necessary to indispensable for his
survival physically and spiritually.
Next, when a person is permit to commit prohibited in the cause of darura, he or she can
never oppose, deny or forget about the original ruling of its prohibition. Besides, another
guidelines need to be particularly taken serious consideration is when a certain cause or necessity
situation that renders the prohibited things permissible ceases to exist, return to original principle
is required. Further explanation from The Mejelle states A thing permitted on account of an
excuse becomes unlawful on the cessation of the excuse. For instance in order to have better

~ 16 ~

understanding, consume pork in the darura situation no longer valid or permissible in Islam
when there is existence of other halal foods.

Quranic ayat:

He (Allah) has forbidden dead meat or carrion, blood, the flesh of swine, and that which is
slaughtered on which Allah's name is not mentioned, but if someone is forced by necessity
without willfull disobedience nor transgressing due to limits then there is no sin on him
( Al- Baqarah : 173 )

Anyone who (after believing) utters unbelief except under compulsion, his heart still remains
firm in his belief, but who so ever's chest is open to unbelief, on them falls the wrath of Allah,
and there awaits them severe chastisement. ( Surah An-Nahlu:106)

~ 17 ~

Technically, there are some examples where this legal maxim principle would be applied in
certain circumstances. Firstly,example like in the case where there were 2 persons travelling
together far away from their hometown, which suddenly one of the traveller die due to sickness
in a place where no judge can be found and left with the living traveller some valuable properties
owns by died traveller. Unfortunately, later the living traveller met with the evil thief force him
to give money in cash and threaten his life. He is allowed to sell or make any type of transactions
of the property of his companion without any legal power or instruction given by died traveller
before, as long would generate the cash money. However, under normal circumstances none is
allowed to sell the property of a dead man who is neither related to him, nor has issued any legal
power for selling the property, but in this case, if the above living person does not sell the
property of his companion it would be cause danger to his life (darura).
Another example of situation or its application in Islamic commercial transaction is Bay AlWafa. Literally, it means sale with right of redemption. Basically, can be defined in situation
when there is a person in need of cash but owns certain property. He decided to sell that property
to the buyer in a condition that the he will be allowed to get the property back upon completed
paying the property price. However, this type of sale contract are condemn by majority of the
jurists due to the hidden reality of this sale is that a loan that may involve riba and additional
benefits upon payment of repurchasing the property. Nevertheless, Hanafis argued based on this
maxim on its validity because of to help people that deeply in need and there are no other
alternative to help him survive or continue his life without harm or starvation. Need to be
highlighted that even though its permissible, yet this rule is not absolute but it is limited by
certain restrictions, by the extent of the necessity and by the time of the necessity.

~ 18 ~


This maxim is taken from the Prophets hadith which is (la dararawa la dirar) and it is
stated harm should neither be inflicted nor received. It means that all kind of injury should be
removed or eliminated. Islam does not allow us to harm people or to let others harm us. The
word haram in this maxim is general and it includes all kinds of harm that involves individual,
society, environment or any other matters. As in Islamic commercial transaction, a firm is
prohibited from impose injury or causing grief to others while dealing with economies and
business activities. Besides, this maxim provides a guideline to regulate the entire financial
system in such a way that prohibits harm imposition and discourages retaliation.

There are four sub-maxims are included under this maxim which:
1) A particular harm could be accepted to repel a common harm
A private injury is tolerated in order to ward off the public injury which means
that to repel a public damage, private damage is preferred and warding off public injury is
given preference over personnel injury. For example, under the normal condition,
Shariah allows free market operation. But in case traders manipulate the market for large
profits in a manner that harm the interest of the consumers or general public, the
government may take action to regulate the price to protect the interest of the consumers.
By doing so, the government will be preventing the general harm by tolerating a
particular harm. Another example is when dealing with bankruptcy case, it is allowed to

~ 19 ~

sell the bankruptcy debtors asset who is under custody for the interest of the creditors
because the injury of selling the asset of the debtor is a private injury, and by not selling
the asset of the debtor we prevent the creditors from getting their right which is

2) The lesser of the two evils is chosen

When there is a case where the choice between two harmful alternatives, the one
that has less harm may be chosen. Besides, it also means that in the presence of two evils,
the one whose injury is greater is avoided by the commission of the lesser. For example,
when a customer loses his coin in a slot, his coin may be allowed to go waste rather than
to dismantle the machine which has much greater value than the coin. But in case when
there is a very expensive bar of gold is lost in a less expensive washing machine of a
laundry its recovery, then, requires damage to the machine; the same will be affected to
recover the bar of gold that is more expensive than the machine

3) Harm is eliminated to the extent which is possible

All necessary measures must be taken to prevent any harm from happening.Harm
is to be repelled as far as possible. Therefore, a person should spend his maximum effort
and capacity to remove the injury by using different ways and means available. The
validation of the option of the defect (khiyar al-ayb) in Islamic lawis designed to protect
the buyer against harm. Therefore, when Ali buys a car and discovers that it has defects,
he has the option to revoke the contract. For there is a legal presumption under the

~ 20 ~

Shariah, that the buyer concluded the contract on condition that the object of sale was
not defective. Another example is that if anyone sells anything that could rot quickly,
such as fruits, and the buyer disappears before the payment of the price and before
receiving the sold items, the seller in this case is allowed to revoke the sale contract and
sold the said item to another person, if he fears that the sold item will be spoiled. This is
to prevent loss to the seller which will harm his business.

4) Harm may not be removed by causing harm.

It means that harm is not eliminated by doing other harm. For example, in case a
buyer gets faulty goods he is given the option to return the goods. But if the purchased
goods have developed similar fault while in possession of the purchaser, he will lose his
option to return the goods because, in order to protect himself from harm, he will also be
harming the seller. This would amount to removing harm by causing a similar harm.


~ 21 ~

Practices of commercial transaction are permissible in Islam and must avoid in such
activities that is prohibited. Islamic legal maxims are very important to the economic and
business activities to the Muslim people since even when they are conducting their business
activities they should behave according to the Shariah and with a good intention to please Allah.
Besides, it is also important for the Muslim these legal maxims in order to protect the right
between two parties.By applying these legal maxims, a Muslim society is controlled and
governed by the set of laws of the Shariah. Other than that, it provides the means to find the way
out of conflicts among the members of society.


~ 22 ~

An Introduction To The Theoretical Foundations of Islamic Transactions, Dr. Muhammad

Yusuf Saleem, Ilmiah Publication (2012)
Kamali.M(n.d), Principles of Islamic jurisprudence, Islamic Text society, Cambridge
Mohammad Hashim Kamali, Qawaid Al-Fiqh: The Legal Maxims of Islamic Law
Securities Commission Malaysia (2009), Islamic Commercial Law (Fiqh al-Muamalat):
Islamic Capital Market Series of books, Malaysia: Lexis Nexis Sdn Bhd,
Abu Umar Faruq Ahmad, Shariah Maxims and Their Implication on Modern Financial
Transaction, (p.77)

~ 23 ~