O ye who believe! When you acquire a loan for a fixed
period, record it in writing, and a scribe write it down between you with
fairness; he who can write should not refuse to write, and just as Allah has
taught him to write, he also should write for others; the one who has acquired
the loan should have [the document] written down and fearing Allah his Lord, he
should not make any reduction in it. If he on whom rests the responsibility of
writing is indiscreet or feeble or unable to have it written, let his guardian
do so with justice. And call in two male witnesses from among your men, but if
two men cannot be found, then one man and two women from among your likable
people so that if one of them gets confused, the other reminds her. And
witnesses must not refuse when they are summoned. And whether the loan is big or
small, be not negligent in documenting the deal up to its period. This is more
just in the sight of Allah, it ensures accuracy in testifying and is the most
appropriate way for you to safeguard against doubts. But if it be an everyday
transaction, it does not matter if you do not write it down. And call in
witnesses also if you sell or purchase anything. And let no harm be done to the
scribe or the witness. If you do so, then this will be a transgression which
will cling to you. And fear Allah. Allah is teaching you. He has knowledge of
all things. (2:282)
This verse directs the Muslims to document monetary
transactions whether in cash or in credit to safeguard against any dispute that
may arise. Imam Amin Ahsan Islahi has summarized the directives mentioned in
this verse in his “Tadabbur-i-Qur’ān” in the following words:
1. Whenever a loan is acquired for a certain period, the
transaction should be written down in the form of a document.
2. This document should be written down in a just manner
by some scribe in the presence of both the parties. He should not be fraudulent
in writing this down. A person who knows how to write should not refuse if he is
called upon to do so. The skill of writing is a blessing of Allah, and, in
gratitude of this, a person should help others whenever a need arises. The need
for this piece of advice arose because in those times very few people knew how
to write. Formal and legal documentation and registration had not begun and its
inception was not an easy affair.
3. The responsibility of writing down the document rests
on the borrower. The document should state the name of the person from whom he
has borrowed, and like the person who has been entrusted with the responsibility
of writing down, he too should uphold the virtue of piety in this affair, and in
no way try to damage the parties involved.
4. If the borrower is naïve, feeble or is not in a
position to write down the document, his guardian or attorney should have it
written down on his behalf with justice and fairness.
5. Two male witnesses should testify over this document.
The words used are min rijālikum (from among your men), which imply two things
simultaneously: The witnesses should be Muslims, and secondly they should be
known to the parties involved. The second thing which is specified in this
regard is that the witnesses should be honest and trustworthy and of a sound
character.
6. If two male Muslims having the said qualities are not
available, then one man and two women can be selected to fulfil this
responsibility. The requirement for two women is because if one of them commits
an error the other may correct her. This is not because women are inferior, but
because this responsibility is not very suited to their temperament and general
sphere of interests and the environment they are used to. Consequently, the
Sharī`ah has given them some relief and assistance in it. This topic is
discussed in detail in Sūrah Nisā.
7. People who have borne witness to a document should
not desist from giving their testimony when they are called upon to do so
because bearing witness to a truth is a great social service also, and as
witnesses to the truth, it is a responsibility of the Ummah imposed on it by the
Qur’ān.
8. If the loan, whether it be small in amount or large,
is acquired for a period and is not an everyday loan, one must not show aversion
to writing it down. People who ignore this by considering it as a burden,
sometimes get involved in severe disputes which produces far reaching results
merely because of this slackness.
9. All these directives are in accordance with justice,
and they safeguard testimonies and protect people from doubts and disputes. So
it is necessary to follow them for the general well being of the society.
10. Everyday loans/transactions are not required to be
written down.
11. Witnesses, however, should be called upon important
deals and transactions.
12. It is not proper for a party to harm the scribe or
the witness if a dispute arises. Scribes and witnesses do a great social
service, and if they are harmed, honest and cautious people will start avoiding
these responsibilities and, except for professional witnesses, people will have
difficulty in finding witnesses who are reliable. In present times, the reason
honest and serious minded people avoid these responsibilities is that whenever
some dispute arises in such an affair, the witnesses have to face a lot of
trouble and discomfort. They become the targets of defamacy, suffer monetary
losses and even get killed. The Qur’ān has stopped people from such excesses and
warned that this is not a small offence that it may be forgiven. It is a
transgression which will cling on to them, and they will not be able to save
themselves from its evil consequences. This is nothing but an effort to raze
down the foundation of the pillar of bearing witness to the truth – the very
objective of this Ummah. (Vol 1, p. 640-2)
_______
2. Believers! When death approaches someone among you,
and he is making a bequest, the testimony will take place in a way that two just
men from among you will act as witnesses, or if you are in travelling and the
calamity of death overtakes you, then two just men from outside you should
discharge this responsibility. Detain them [ -- the two just Muslims --] after
the prayer, and then if you have any doubts, they should swear by Allah: We will
not accept any price for this testimony even if some kinsman offers it, neither
will we hide this testimony of Allah. If we do this, then we would be among the
sinners. But if it becomes known that they have proved dishonest, then let two
others stand forth in their places from among the people who have been deprived
of their right by these two witnesses; then they should swear by Allah, saying:
Our testimony is truer than theirs and that we have not trespassed [beyond the
truth] in our testimony. If we do this then we indeed should be among the
wrongdoers. In this way, it is more likely that they will bear true witness or
at least they will fear that their testimony may get refuted by that of the
others. [Do this]. And fear Allah and listen and [remember that] Allah never
guides the evil-doers. (5:106-108)
In these verses, believers are directed about their wills
and bequests with the same stress and emphasis as they are in matters of loan
and other transactions. A summary of these directives is presented below:
1. If death stares a person in his face and he has to make
a will regarding his wealth, he should call in two just witnesses from amongst
his Muslim brethren on this.
2. If death approaches him during a journey, and two Muslim
witnesses are not available there, then as a last resort he can call in two
non-Muslims witnesses.
3. If there is a possibility that those selected from among
the Muslims as witnesses might show some bias to someone by altering their
testimony then as a precautionary measure, they can be held back after a
congregational prayer in the mosque and be asked to swear by Allah that they
will not alter their testimony for some worldly gain or in partiality of someone
even if he be their close relative, and, if they do some alteration, then they
will be sinners.
4. The witnesses should know that this testimony is
Shahādah Allah (the testimony of Allah). So even if they are dishonest in this
even in the slightest way, they would be dishonest not only to their brethren
but also to the Almighty.
5. In spite of this, if it comes to surface that these
witnesses have shown bias to someone contrary to the will made by the deceased,
then two people from among the brethren of the person who has become the victim
of this injustice should stand up and swear that they are truer than the
previous witnesses; that they have not committed any excess in this regard and
that they will be wrongdoers before the eyes of Allah if they do so.
6. It is likely that after this further measure, the
witnesses will not give a false testimony for they will have the fear hovering
over them that if they commit any wrong, others will negate their oaths and in
spite of being given preference, their oaths will be refuted.
(Translated from Ghamidi’s “Mīzān” by
Shehzad Saleem)
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