Alliance, Treaty, and Contract
(ʿahd; ʿaqd; aymān; dhimma; ḥilf; mīthāq, walāʾ)
The Qurʾān uses the following terms to denote an alliance, treaty, or a contract:
- mīthāq (occurring 25 times);
- ʿaqd (pl. ʿuqūd used once for contracts in Q 5:1;
- ʿuqda used twice specifically for marriage contracts);
- ḥilf (various forms of its verb appear twelve times indicating "to swear" or "to take an oath", and ḥallāf, oath-taker, appearing once in Q 68:10);
- yamīn (while none of its 24 occurrences in the singular form refer to oaths, promises, bonds, or treaties, many of its 41 occurrences in the plural, aymān, do);
- waʿd (occurring 15 times);
- ʿahd (31 times); and
- dhimma (twice).
- Definitions and Usage
- Terms for specific contracts
- Importance of Upholding Agreements
- Treaty Obligations during War
- Prophetic Treaties with Non-Muslims
- The Treaty with the Jewish Tribes of Madina
- The Treaty of Ḥudaybiya with the Polytheists of Makka
- Treaty with the Jews of Khaybar and Fadak
- Treaties with Other Tribes of the Arabian Peninsula
- Imposition of Tribute (Jizya) on the People of the Book
- Renunciation of the Treaties with the Arab Idolaters
- Protection of Asylum-seekers (Mustaʾminīn)
- Establishing Written Contracts
- Validity of Verbal Contracts and Preference for Documentation
- Duty of the Scribe
- Duty of the Debtor to Dictate the Contract
- Commandments Regarding Witnesses
- Inviolability of Scribe and Witnesses
- Securing the Transaction through Other Means
- Breaching Trust
Definitions and Usage
Mīthāq is derived from the root w-th-q, which originally has the meaning of “bond” (Q 5:7) and its corollary, “confidence” (Q 12:66; Ibn Manẓūr, Lisān, sub w-th-q). In its Qurʾānic usage, it often refers to Allah’s covenant with humanity to believe and worship Him alone, and to follow His Messengers (Q 2:63; 7:172-173; 33:7-8) (for further discussion of mīthāq, see Covenant).
ʿAqd is derived from the root ʿ-q-d, which means to tie a knot (ʿuqda, as in Q 20:27, loosen the knot from my tongue; pl. ʿuqad, as in Q 113:4, who blow on knots) or “bond”, and by extension to enter into a binding agreement (Q 5:1). Allah refers to the marriage contract as the “tie of marriage” (ʿuqdat al-nikāḥ) (Q 2:235 and 237; see more on marriage below). When the word ʿaqd is used along with other words for promise, such as ʿahd or yamīn, it implies the “strong bond” created through the treaty (Ibn Manẓūr, Lisān, sub ʿ-q-d; see Q 4:33 and 5:89).
Al-Ālūsī (d. 1270/1854) states that the pre-Islamic Arabs (see Jāhiliyya) often instituted treaties through symbolic acts, which later came to refer to the treaties themselves. For instance, two persons or tribes would sometimes become allied through the taking of bilateral compacts that made each an ally (ḥalīf, pl. aḥlāf) of the other. Later, the word ḥilf came to be used for allegiances regardless of the ritual involved. Oaths might also be instituted through other symbolic acts, for instance, placing one’s right hand (yamīn) on another’s, such that the word yamīn (pl. aymān) also came to be used for oaths and covenants: those with whom you have made solemn covenants (ʿaqadat aymānukum) (Q 4:33). The time and place in which oaths are taken also affects their performance and gravity. For instance, the Qurʾān refers to taking oaths after offering prayer (Q 5:106; Bukhārī, Shahādāt, yamīn baʿd al-ʿaṣr), and describes the Treaty of Ḥudaybiya as concluded near al-Masjid al-Ḥarām (Q 9:7)—that is, in solemnizing proximity to it (Ālūsī, Rūḥ, sub Q 9:7).
A contract, in essence, is a combination of mutual promises. Waʿd, a promise, is thus regarded as a generic form of contract. In a famous hadith, the Prophet, upon him blessings and peace, said: “The hypocrite has three signs: when he speaks, he tells a lie; when he makes a promise (waʿada), he breaks it (akhlafa); and when he is given trust, he breaches it” (Bukhārī, Īmān, ʿalāmat al-munāfiq) (see Hypocrisy and Hypocrites). This usage is also found in the Qurʾān (Q 9:77 and 19:54). The word waʿd is frequently used in the Qurʾān for the reward promised by Allah to those who perform good deeds (Ṭabarī, Tafsīr, sub Q 4:95). Waʿīd, derived from the same root, denotes “warning” or “threat”, suggesting the promise of punishment for those who violate Divine commandments (Ṭabarī, Tafsīr, sub Q 50:28). Mawʿid may refer to a “just promise” (Q 20:86-87) or, by implication, “threat” or “warning” (Ṭabarī, Tafsīr, sub Q 11:81), but, like mīʿād (Q 34:30), also morphologically carries the meaning of “promised place” (Q 11:17) or “appointed time” (Q 18:59).
ʿAhd also denotes “promise” (Q 17:34 and 6:152). The verb ʿahida, when combined with the preposition ilā, means “to enjoin” (Q 2:125 and 20:115). From the same root, the verb ʿāhada means “to make a covenant” (Q 9:75) or “to conclude a treaty” (Q 9:1). The noun muʿāhada thus denotes a covenant or treaty. For further discussion of ʿahd, see Covenant.
As violating treaty obligations is unequivocally unethical, it entails rebuke. It is for this reason that the word dhimma (whose root dh-m-m signifies rebuke) also means a treaty (Ibn Manẓūr, Lisān, sub dh-m-m; cf. Q 68:49; 17:22): that is, dhimma is an ʿahd the breaking of which entails rebuke. Were they to prevail against you, they would guard neither kinship nor treaty (dhimma) (Q 9:8), Allah says of the disbelievers. Non-Muslim inhabitants of Muslim-ruled territory are called “people of the contract” (ahl al-dhimma), because Muslims are obliged to uphold their contract in protecting them (Ibn Manẓūr, Lisān, sub dh-m-m; al-Sarakhsī, al-Mabsūṭ, Siyar).
Terms for specific contracts
Words denoting specific contracts include nikāḥ, bayʿ, shirāʾ, tadāyun, qarḍ, ṣulḥ, and taḥkīm.
The word nikāḥ, from the root n-k-ḥ, appearing five times in the Qurʾān, signifies joining (ḍamm), which is why it conveys metonymically the meaning of sexual intercourse (waṭʾ). The philologist al-Azharī (d. 369/980) declares: “The word nikāḥ in the Arabic lexicon originally means sexual intercourse, and it is used for the contract of marriage because this contract is the lawful means for sexual intercourse” (Ibn Manẓūr, Lisān, sub n-k-ḥ). A key verse here is Q 4:6 (Test orphans until they reach the age of marriage (al-nikāḥ), and then if you find them mature of mind hand over to them their property; cf. Ṭabarī, Tafsīr, sub Q 4:6). Ibn Manẓūr (d. 711/1312) follows the opinion of the Shafiʿīs in asserting that the Qurʾānic usage of the word and its derivatives consistently refers to the marriage contract, not its consummation (Lisān, sub n-k-ḥ), while Ḥanafī jurists hold contrariwise that the phrase “the age of marriage” (al-nikāḥ) metonymically refers to the age of puberty and hence to sexual intercourse (al-Sarakhsī, al-Mabsūṭ, Nikāḥ). Most exegetes permit the conclusion of a marriage contract (though not, of course, its consummation) before the age of puberty (see Marriage and Divorce).
Everyday practices of buying and selling fall under the general rubric of contracts. The most common Arabic word for sale is bayʿ, meaning exchange, and so denotes both sale and purchase (Ibn Manẓūr, Lisān, sub b-y-ʿ). The common word for purchase, shirāʾ, also is used for both forms of exchange (Ibn Manẓūr, Lisān, sub sh-r-ʾ). The Qurʾān metaphorically uses derivatives of this word to denote people’s preferring one thing to another: for example, Let those who sell (yashrūn) the life of this world for the life of the next world fight in the way of Allah (Q 4:74); and Do not exchange (lā tashtarū) My signs for a trifling gain (Q 2:41).
The word mubāyaʿa, which refers to a contract of allegiance made by one person to another, derives from the same root of b-y-ʿ (Q 9:111; 48:10; 60:12). Almost the same meaning is conveyed by the word tabāyuʿ, literally “exchange with one another” (Q 2:282). The noun bāʿ means “forearm” (Ibn Manẓūr, Lisān, sub b-y-ʿ), and this demonstrates the etymological connection of these terms with the compacts originally sealed with a mutual joining of hands.
Related to the term bayʿ is dayn, which appears five times in the Qurʾān and denotes financial liability (see Ibn Manẓūr, Lisān, sub d-y-n; al-Sarakhsī, al-Mabsūṭ, Ṣarf). Q 2:282 uses the verb tadāyantum, the noun from which is tadāyun—literally meaning “a contract imposing a financial liability on each of the parties to the contract” (Jaṣṣāṣ, Aḥkām al-Qurʾān). The term dayn refers to liability generally and encompasses loan (qarḍ), price in a credit sale (bayʿ al-nasīʾa), deferred dower (mahr muʿajjal), the liability of a husband for his wife and children’s maintenance, as well as several other forms of financial liability.
The word qarḍ, denoting “loan”, appears six times in the Qurʾān. It stems from the root q-r-ḍ, which means “to sever” (Ibn Manẓūr, Lisān, sub q-r-ḍ). Importantly, derivatives of the word qarḍ (Q 2:245; 5:12; 57:11; 64:17; 73:20) appear in the Qurʾān to metaphorically denote spending money in the Way of Allah, particularly for the purpose of jihad. Allah describes this as a “goodly” (ḥasan) loan, and indicates through this usage that all such sacrifices will be amply rewarded in the next life (Q 2:244-245) (see Almsgiving). In Islamic law, the term qarḍ ḥasan is used to denote the only form of valid loan transaction; it is deemed a donation (tabarruʿ) as it presumes that the lender gives away the money to the creditor for the sake of reward in the hereafter (al-Marghīnānī, al-Hidāya, Buyūʿ). It is on this principle that the law does not make fixing the date of repayment in a contract of loan binding and gives the lender the right to ask repayment anytime he wishes, because “no one can be compelled to perform an act of charity” (lā jabr fī-l-tabarruʿ). The creditor is encouraged to wait until the debtor’s financial circumstances ease (Q 2:280). The phrase liability for a known term (dayn ilā ajal musammā) in Q 2:282 thus refers only to those forms of dayn in which fixing the date of repayment is allowed, such as price in a credit sale or deferred dower money (Jaṣṣāṣ, Aḥkām al-Qurʾān, sub Q 2:282).
Finally, arbitrative contracts entailing mutual compromise are described in the Qurʾān with derivatives of the word ṣulḥ. The word ṣulḥ is the antonym of fasād (ruin) and as such it denotes any kind of improvement or remedial action (Ibn Manẓūr, Lisān, sub ṣ-l-ḥ). The Prophet, upon him blessings and peace, said: “Truly there is a certain organ (mudgha) in the body: when it is healthy (ṣalaḥat), the entire body is healthy; when it is corrupt (fasadat), the entire body is corrupt. Truly, it is the heart” (Bukhārī, Īmān, man istabraʾ li-dīnih; Muslim, Musāqāh, akhdh al-ḥalāl wa tark al-shubuhāt). The adjective ṣāliḥ is used for a righteous act (Q 2:62), righteous person (Q 18:82), or a physically fit person (Q 7:189-190). As a peace settlement is deemed ‘better’ than war, the word ṣulḥ is used for a treaty or any effort at making peace. If two parties of the believers happen to fight, make peace (aṣliḥū) between them (Q 49:9). Ṣulḥ thus denotes making peace, settling a dispute, correcting a wrong, and, by implication, reconciliation (Q 4:128) and arbitration (taḥkīm)(Q 4:35).
Importance of Upholding Agreements
Fulfillment of contractual and treaty obligations, in times of peace as well as in war, is a major theme in various chapters and verses of the Qurʾān, which makes it an essential characteristic of a Muslim.
The Qurʾān mentions the examples of earlier Prophets, upon them all peace, as ever-truthful (ṣiddīq) (Q 12:46; 19:41; 19:56) and true to their promises (Q 19:54). Sūrat al-Maʿārij (Q 70) describes the early Companions of the Prophet, upon him blessings and peace, as those who fulfill their trusts and covenants (Q 70:32; see also 23:8).
The Prophet’s work in Makka was obstructed by persecution by idolatrous citizens as well as by interventions on the part of the Jews of Yathrib (Madina) (Ibn Hishām, Sīra, al-Yahūd yaʿrifūnah wa yakfurūnah). The following verses of Sūrat al-Naḥl directly address the latter, though the implications for Muslims are also clear:
And fulfill the covenant that you have made with Allah, and do not break your oaths (al-aymān) after having firmly made them and after having made Allah your Witness. Surely Allah knows what you do (…) And do not make your oaths (al-aymān) a means of deceiving, lest a foot may slip after having been firm; and you may suffer evil consequences because of hindering people from the way of Allah, and for you there shall be a mighty torment. Do not barter away the covenant (ʿahd) of Allah for a paltry gain. Verily, that which is with Allah is far better for you, if you only knew.
Q 16:91, 16:94-95
Maintaining the Divine contract is mentioned among the fundamental commandments of the Divine law: And keep the covenant (ʿahd) of Allah (Q 6:152) and And keep the covenant (ʿahd). Verily, you will be called to account for every covenant which you have made (Q 17:34).
Treaty Obligations during War
The Qurʾān makes it obligatory on the Islamic state to support Muslims who face religious persecution (fitna, see Trials and Strife) even in foreign territory under the control of non-Muslims (Q 4:75). However, it equally emphasizes observance of treaty obligations and prohibits military action against any who have contracted a peace treaty (Q 8:72). Similarly, the Qurʾān prohibits pursuing enemies if they take shelter among those who have contracted a peace treaty with the Muslims (Q 4:90). It also requires Muslims to give due notice of the termination of a peace treaty to the other party before undertaking any military action against it (Q 8:58). Even when the injunction to fight the pagan tribes of the Arabian Peninsula was pronounced, the Qurʾān ordered Muslims to faithfully observe treaty obligations (Q 9:1-6) (see Jihad).
Prophetic Treaties with Non-Muslims
After his arrival in Madina, the Prophet, upon him blessings and peace, concluded treaties with various tribes of non-Muslims. Legally speaking, these treaties were of two kinds: those, such as the Pact of Madina, that accorded non-Muslims the right to reside permanently under the Muslim rule in the “territory of Islam” (dār al-Islām) (see Abode), these non-Muslim citizens are referred to as ahl al-dhimma, because their maintenance is the responsibility of the state (see definitions above); and those, such as the Treaty of Ḥudaybiya (concluded in 6/628), which established peaceful relations between Muslims and non-Muslim powers who retained their autonomy. The latter type of contracts are known as a “cessation of hostilities” (muwādaʿa) (al-Kāsānī, Badāʾiʿ al-ṣanāʾiʿ, Siyar).
The following are among the important treaties that were concluded during the Prophet’s life, peace be upon him, and that are relevant to understanding the Qurʾānic usage of these terms.
The Treaty with the Jewish Tribes of Madina
Upon his arrival in Madina, the Prophet, upon him blessings and peace, concluded a treaty with the inhabitants of Madina, both Muslim and non-Muslim. This treaty established the political authority of the Prophet, upon him blessings and peace, as the ruler of the city-state of Madina (Ibn Hishām, Sīra, al-Rasūl yuwādiʿ al-Yahūd). For this reason some modern scholars consider it a “constitutional document” (Hamidullah, The First Written Constitution in the World; al-Būṭī, Fiqh al-Sīra al-Nabawiyya) and indeed a model for modern constitutional law. The document drawn up in Madina was essentially a treaty that can be divided into two parts, one concerning the Muslim inhabitants of Madina and the other its Jewish tribes (Hamidullah, Majmūʿat al-Wathāʾiq al-Siyāsiyya p. 57-64). There is evidence to suggest that the latter part was concluded soon after the Battle of Badr in 2/624 (Abū Dāwūd, Kharāj wal-Imāra wal-Fayʾ, kayf kān ikhrāj al-Yahūd min al-Madīna; Hamidullah, The Life and Work of the Prophet of Islam 1:147-148).
The Jewish tribe of Banū Qaynuqāʿ was the first to violate this treaty and was consequently expelled from Madina (Ibn Isḥāq, Sīra, ghazwat Banī Qaynuqāʿ). Banū al-Naḍīr followed suit in 4/626 (Ibn Isḥāq, al-Sīra, amr ijlāʾ Banī al-Naḍīr). The third of these tribes, Banū Qurayẓa, violated the treaty at a critical juncture when the allied forces of the idolaters of Makka and the expelled tribes of Jews attacked Madina in 5/627 at the Battle of the Trench (Ghazwat al-Khandaq) (Ibn Isḥāq, al-Sīra, ghazwat Banī Qurayẓa). It was then that the following verses of the Qurʾān were revealed:
Those of them with whom you entered into a treaty, and then at every opportunity break their treaty, and do not fear [the consequences]—if you meet them in war, make of them a fearsome example for those who are behind them, that they may be admonished. If you fear treachery from any group [with whom you have a treaty], throw back [their treaty] to them [so as to be] on equal terms: for Allah does not love the treacherous.
These verses laid the foundation on which Muslim jurists developed a detailed rubric for the annulment of treaties and the formalities of giving due notice to those affected (Jaṣṣāṣ, Aḥkām al-Qurʾān and Qurṭubī, Tafsīr, sub Q 8:58).
The Treaty of Ḥudaybiya with the Polytheists of Makka
In the year 6/628, the Prophet, upon him blessings and peace, made a pact (known as the Treaty of Ḥudaybiya) with the idolaters of Makka. Some of its stipulations were apparently against the interests of the Muslims, such as the provision to return to the polytheists any (male) Muslim who fled Makka (Ibn Hishām, Sīra, amr al-Ḥudaybiya; Hamidullah, Majmūʿat al-wathāʾiq p. 77; for the Qurʾān prohibiting handing over Muslim women to the idolaters, see Ibn Hishām, Sīra, amr al-muhājirāt baʿd al-hudna; Ṭabarī, Tafsīr, sub Q 60:10). However, the Prophet, upon him blessings and peace, ensured the observance of the treaty in full. Thus he handed over Abū Jandal (d. 18/639), Allah be well pleased with him, to the Makkans, even though he had reached the Muslim camps before the treaty was committed to writing (Ibn Hishām, Sīra, Abū Jandal b. Suhayl). At the time this treaty was established, Muslims were in a dominant position and they could have overpowered the idolaters (Q 48:22-26). However, it provided a much needed period of peace during which the Muslim community propagated Islam throughout the Arabian Peninsula. It also marked the end of the alliance of the idolaters of Makka with the Jews of Khaybar (Ibn Hishām, Sīra, dhikr al-masīr ilā Khaybar). Even before the Makkans violated the Treaty of Ḥudaybiya, the Qurʾān warned Muslims that they should remain vigilant and should not trust their opponents, as the latter were waiting for a convenient opportunity to betray them (Q 9:7-12). This prediction soon proved true (Ibn Hishām, Sīra, dhikr al-Asbāb al-mūjiba lil-sayr ilā Makka). When the Makkans violated the Treaty of Ḥudaybiya, Muslims were ordered to fight them and thus to put an end to tyranny, persecution, and injustice (Q 9:13-22). The Muslims conquered Makka in Ramadan 8/January 630.
Treaty with the Jews of Khaybar and Fadak
After returning to Madina from Ḥudaybiya, the Prophet, upon him blessings and peace, waited for the sacred months of Dhūl-Ḥijja and Muḥarram to pass, and in the last days of Muḥarram marched north towards Khaybar. Soon the inhabitants of the fortified oasis were overpowered, as the Makkans could not support them because of the Treaty of Ḥudaybiya and the tribes of Ghaṭafān failed to provide them with material support (Ibn Hishām, Sīra, dhikr al-Asbāb al-mūjiba lil-sayr ilā Makka). Finally, a peace settlement was reached under which the Jews were permitted residence in the same territory, on the condition that they pay as tribute (see Jizya) half the land’s produce and under threat of expulsion from the Arabian Peninsula if they violated their terms (Muslim, Musāqāt, musāqāt wal-muʿāmala bi-juzʾ min al-thamar wal-zarʿ; Bukhārī, Shurūṭ, idhā ishtaraṭa fī-l-muzāraʿa idhā shiʾtu akhrajtuk). The people of Fadak concluded a similar treaty with the Prophet, upon him blessings and peace (Ibn Hisham, Sīra, ṣulḥ Khaybar). The legal difference between the tributes paid had to do with the mode of conquest. As Khaybar was conquered in a military campaign, only one-fifth of the tribute was to go to the treasury (bayt al-māl) and the rest was to be distributed among the soldiers in accordance with the Qurʾānic directive for war booty (ghanīma) (Q 8:41). The people of Fadak surrendered peacefully, however, and therefore the whole of their tribute was to go to the government as fayʾ (property gained from the enemy without use of military force) (Q 59:7) (see Booty).
Treaties with Other Tribes of the Arabian Peninsula
After Ḥudaybiya, many idolatrous tribes concluded peace treaties with the Muslims (Hamidullah, Majmūʿat al-Wathāʿiq p. 252-304). Some, such as Banū Ḍamra and Banū Mudlaj, observed the conditions of the treaty faithfully (Ṭabarī, Tafsīr, sub Q 9:4), but many violated them when they saw an opportune moment.
Imposition of Tribute (Jizya) on the People of the Book
During the year 9/630 the Prophet, upon him blessings and peace, consolidated Muslim rule in the Arabian Peninsula, and in the month of Rajab he marched to Tabūk to preempt an attack by the Byzantines (Ibn Hishām, Sīra, ghazwat Tabūk). It was at this juncture that the verse in Sūrat al-Tawba regarding the imposition of tribute (see Jizya) on the People of the Book was revealed:
Fight those who do not believe in Allah and the Last Day and who do not hold as unlawful what Allah and His Messenger have declared to be unlawful, and who do not follow the true religion among those who have been given the Book, until they pay tribute (jizya) out of their hand and are utterly subdued.
During the Tabūk expedition, the Christian inhabitants of the border towns of Ayl, Jarbāʾ, and Adhruḥ concluded peace treaties with the Prophet, upon him blessings and peace, agreeing to pay this tribute (Ibn Hishām, Sīra, al-ṣulḥ maʿa Ṣāḥib Ayla).
Renunciation of the Treaties with the Arab Idolaters
In Dhūl-Ḥijja 9/631, the Divine injunction to wage war against the idolaters was revealed (Q 9:1-6). The Prophet, upon him blessings and peace, made special arrangements for making this pronouncement in the Hajj congregation on the 9th of Dhūl-Ḥijja, the Day of ʿArafa (see ʿArafāt) (Ṭabarī, Tafsīr, sub Q 9:2). Ibn al-Qayyim (d. 751/1350) describes four classes of idolatrous tribes at the time of the revelation of these verses: those that did not have any peace treaty with Muslims; those that had such a treaty, but for an unspecified period of time; those that had such a treaty for a specific period, and had not violated its terms; and those that had such a treaty for a specific period, but had violated its terms (Aḥkām Ahl al-dhimma 1:336).
The first two categories were given four months to embrace Islam or leave the Arabian Peninsula:
A declaration of renunciation by Allah and His Messenger to those of the idolaters with whom you have made treaties: “You may go about freely in the land four months, but know well that you cannot escape Allah and that Allah will bring disgrace upon the disbelievers.” This is a public proclamation from Allah and His Messenger, to all the people on the day of the Great Pilgrimage, that Allah is free from obligation to the idolaters, and [so is] His Messenger. So if you repent it shall be for your own good; but if you are averse then know well that you cannot escape Allah. Give tidings of a painful doom to those who disbelieve.
This period of respite was to end on the 9th of Rabīʿ II 10/631 (Suyūṭī, Durr, sub Q 9:1-2; al-Thānawī, Bayān al-Qurʾān, sub Q 9:1-6).
As for the third category of idolaters, Muslims were ordered to abide by the terms of the treaty until the expiry of the prescribed time period:
Excepting those of the idolaters with whom you have made treaties, and who have not violated their treaties or supported anyone against you. [As for them], fulfil their treaties to them till the end of their term. Surely Allah loves those who fulfil their duty.
Banū Ḍamra and Banū Mudlaj were included in this category, and at the time of the pronouncement of this ultimatum had nine months left until their treaties expired. Thus no military action could be taken against them prior to Ramadan 10/631 (Ṭabarī, Tafsīr, sub Q 9:4).
The fourth category was mentioned in the following verse:
Then when the sacred months expire slay the idolaters wherever you find them, and take them [captive], and besiege them, and prepare for them every ambush. But if they repent and establish prayer (ṣalāt) and pay zakāt, then leave their way free. Surely Allah is All-Forgiving, Ever-Merciful.
This period was to end on the last day of the Sacred Months (29-30th Muḥarram) 10/631 (Suyūṭī, Durr).Based on these verses, Ḥanafī jurists asserted that the Arab idolaters could not conclude dhimma treaties with Muslims and that Muslims could not take jizya from them (al-Sarakhsī, al-Mabsūṭ 10:120). Jurists of the other schools generally opposed this view (al-Ṭabarī, Ikhtilāf al-fuqahāʾ p. 201; al-Dasūqī, Ḥāshiya 2:201; al-Shawkānī, Nayl al-awṭār 7:232). The Ḥanbalī jurist Ibn al-Qayyim asserts that before the expiry of these time periods virtually all the Arabs had embraced Islam and hence the issue of imposing jizya on them did not arise (Zād al-maʿād 1:914; Aḥkām Ahl al-dhimma 1:24).
Protection of Asylum-seekers (Mustaʾminīn)
At the time this ultimatum was given, an exception was made for those idolaters who sought safety (amān) from Muslims. Thus, Muslims were ordered to grant them quarters and to protect them until the period of the quarter expired: And if anyone of the idolaters seeks your asylum, grant him asylum so that he may hear the Word of Allah, and afterward escort him to his place of safety. That is because they are a people who are unaware [of Islam] (Q 9:6). The legal tradition expounded a comprehensive doctrine of amān on the basis of this and other verses of the Qurʾān (cf. Q 5:1; 6:152; 17:34) and precedent laid down by the conduct of the Prophet, upon him blessings and peace, and his Companions, Allah be well pleased with them (cf. al-Sarakhsī, Sharḥ al-Siyar al-kabīr 1:175-255 and 2:3-114).
Establishing Written Contracts
The longest verse of the Qurʾān, known as “The Verse of Debt” (āyat al-dayn) (Q 2:282), describes various conditions of and stipulations for contracts. All Qurʾānic references in the sections to follow, unless otherwise noted, are to this verse.
Validity of Verbal Contracts and Preference for Documentation
The verse requires believers to commit to writing all transactions that create financial liability for a fixed period of time: Believers, whenever you contract a debt for a known term, commit it to writing. The latter part of the verse further stresses this injunction: Be not averse to writing down the transaction, whether small or large, along with the term of its payment. The verse also mentions three important benefits of such documentation: That is more just in the sight of Allah, more sure for testimony, and the best way of avoiding doubt between you. It makes an exception, however, for spot transactions: unless it be an immediate transaction which you conduct among yourselves; in that case it is not blameworthy if you do not write it down.
Exegetes differ as to whether this command denotes obligation (wujūb) or recommendation (nadb). The majority hold the latter opinion and consider the transaction valid even if not committed to writing (Jaṣṣāṣ, Aḥkām al-Qurʾān). Some assert that the command denoted obligation but was abrogated by the following verse (Q 2:283) when it relaxed the condition among those who trust one another (Ṭabarī, Tafsīr). Al-Jaṣṣāṣ (d. 370/981), however, argues that there is no clear-cut proof that any time elapsed between the revelation of the two verses, and therefore that the conditions of abrogation are not met. The second verse, he says, must thus be understood as conditioning the first, not as abrogating it (Aḥkām al-Qurʾān) (see Abrogation).
This verse, moreover, was understood to apply not only to commercial transactions but also to other important contracts, including peace treaties, contracts of marriage, partnerships, and compromises. In many classical manuals of Islamic law, particularly of the Ḥanafī school, the chapters on partnership (sharika) provide specimens of partnership deeds, and the chapters on jihad record specimens of peace treaties. Muslim jurists went to great lengths to detail how legal contracts should be drafted, developing a branch of law known as ʿilm al-shurūṭ (“the science of conditions”) to this end. Books were written on the art of conveyancing and drafting, such as the Greater and Shorter Books on Drafting (al-Shurūṭ al-kabīr and Kitāb al-Shurūṭ al-ṣaghīr) of Abū Jaʿfar Aḥmad b. Muḥammad al-Ṭaḥāwī (d. 321/933). The drafting of legal devices (ḥiyal) is also a branch of the “science of conditions” (Nyazee, Theories of Islamic Law p. 303-305). Al-Makhārij fī-l-ḥiyal by Muḥammad b. al-Ḥasan al-Shaybānī (d. 189/805) lists numerous precedents from various branches of law, ranging from marriage and divorce to partnerships and business as well as compromises and settlements, as a guide to judges and jurists in solving day-to-day problems.
Duty of the Scribe
The verse enjoins those who are capable of writing legal contracts to perform their duty with honesty: Let a scribe write it down between you justly. Those exegetes who assert that documenting contracts is not itself obligatory further argue that a scribe who is requested to do so is not obliged to undertake the task. If he does accept that responsibility, however, he becomes legally obliged to transcribe it justly and precisely (Jaṣṣāṣ, Aḥkām al-Qurʾān). The scribe is reminded that literacy is a gift from Allah and that he should express his gratitude by using his talent for people’s benefit: And the scribe should not refuse to write it down according to what Allah has taught him; so let him write.
Duty of the Debtor to Dictate the Contract
The duty to dictate the contract falls upon one incurring the financial liability: And let the debtor dictate; and let him fear Allah, his Lord, and curtail no part of it. If, however, the debtor cannot dictate, owing to tender age, unsoundness of mind, or any other legal incapacity, his legal guardian is to act on his behalf: If the debtor be feeble-minded, weak, or incapable of dictating, let his guardian dictate equitably. This Qurʾānic instruction, along with the instruction mentioned in Q 4:5 (Do not entrust your property—which Allah has made a means of support for you—to the weak of understanding), forms the basis of the Islamic law of interdiction (al-ḥijr) which prohibits people disposing of their property irresponsibly (Jaṣṣāṣ, Aḥkām al-Qurʾān).
Commandments Regarding Witnesses
The verse further requires witnesses to the legal contract: And call upon two of your men as witnesses; but if two men are not there, be one man and two women as witnesses from among those acceptable to you, so that if one of the two women should fail to remember, the other may remind her. This command also forms the basis for all juristic discussions on the rules regarding the number and competence of witnesses (Jaṣṣāṣ, Aḥkām al-Qurʾān), including modern discussions on gender equity in Islam (see Testimony). It further requires witnesses not only in matters of credit but also for the contracts of property exchange in general: And take witnesses when you settle commercial transactions with one another. A person may refuse to be a witness, but once they have accepted they cannot later refuse to testify: And let not the witnesses refuse when they are summoned (Qurṭubī, Tafsīr and Jaṣṣāṣ, Aḥkām al-Qurʾān). The next verse obligates the witnesses to testify truthfully: And do not conceal what you have witnessed, for whoever conceals it, his heart is sinful (Q 2:283). In general, of course, and beyond the legal context, the Qurʾān requires Muslims to bear the testimony of truth and justice without fear or partisanship: Believer, be upholders of justice and bearers of witness to Truth for the sake of Allah, even though it may be against yourselves or against your parents and kinsmen, or the rich or the poor; for Allah is more concerned with their well-being than you are. Do not, then, follow your own desires, lest you depart from justice. If you twist or turn away, know that Allah is well aware of all that you do (Q 4:135).
Inviolability of Scribe and Witnesses
The verse also warns of the consequences of causing harm to the scribe or to the witnesses: And the scribe and the witnesses must not be harmed. It will be sinful if you do so. Beware of the wrath of Allah. He teaches you the right way and has full knowledge of everything. As al-Ṭabarī notes in his Tafsīr, this prohibition includes putting the scribe or witnesses under duress when, exercising their legal right, they abstain from transcribing or becoming witnesses. It also prohibits forcing the scribe or witnesses to alter the contents of the contract.
Securing the Transaction through Other Means
The next verse allows for another means for securing transactions: And if you are on a journey and do not find a scribe to write the document, then resort to taking collateral in hand (Q 2:283). The legal tradition developed a detailed body of law regarding collateral security or pledges (rahn) from this verse and from Traditions of the Prophet, upon him blessings and peace, and emphasized the avoidance of usury(Qurṭubī, Tafsīr, sub Q 2:283).
Yet another means for securing transactions is the unilateral undertaking of a third party, as in the story of the Prophet Yūsuf, upon him peace, in which an official undertakes to reward whoever locates the lost chalice of the king: “He who brings it shall have a camel-load of provisions, I guarantee that” (Q 12:72). This unilateral undertaking may, with the consent of the creditor and the debtor, take the form of a tripartite contract known as a “guarantee” (kafāla).
In cases where the creditor trusts the debtor and for that reason neither requires that the contract be written nor requests a guarantee, the Qurʾān enjoins the debtor not to commit a breach of trust, and to fear Allah: And if any of you trusts another, let him who is entrusted fulfill the trust and fear Allah, his Lord (Q 2:283). Most of the exegetes are of the opinion that “the one who is trusted” means the debtor (Ṭabarī, Tafsīr). The verse imposes upon the creditor the duty to take due care of the pledged property. It is a well-established rule of Islamic law that the pledgee (murtahin) possesses the pledged property as a trust (amāna) and that all the conditions of a trust apply to his possession.
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