MOHD GHADAFI BIN SHARIPOLITEKNIK SEBERANG PERAI

5.1 Describe the types of Mal. 5.1.1 Define Mal, Haq (Right) and Manfa’ah (Benefit) 5.1.2 Describe the types of Mal a. Manqul (Movable) b. Ghair Manqul (Immovable) c. Mithliy (Alike) d. Qimmiy (Invaluable) e. Istihlakiy (Single-use) f. Isti’maliy (Reusable Item) g. Mutaqawwim (Valuable)

h. Ghair Mutaqawwim (Valueless)

*Mal in the Arabic language signifies whatever in effect a man may acquire and possess; whether that is corporeal ('ayn) or usufruct (manfa'ah)

*Hanafi

*Maliki

*Syafiee

*Hambali

*In the dictionary, definition of mal (its plural - amwal) is simple and straight forward, "whatever you own from all matters".

*Mal in word means properties. The thing that be owned by someone. This means that any goods that could be owned in the form of good or benefit its consider as al-mal.

*The concept of mal or property according to Hanafi School, mal is which is created, beneficial to humans, valuable and can be kept and would decrease in its value and become worn after usage. There is no consensus amongst the Hanafi. Some view that mal covers only tangible things excluding usufruct and rights. And there is a second view on the definition, which covers both the tangible and intangible. Therefore, all the properties, goods, usufructs and rights can be classified as mal.

*The concept of mal or property according to Maliki School, mal means everything that can be possessed, and the owner has an exclusive right of possession of the object when he owns it. Hence, in order for an object to become mal, it will depend on the relationship between the owner and the object, as the need to own and use the object is based on the fact that the object is beneficial to the owner.

*The concept of mal or property according to Syafiee School, an object cannot be classified as mal unless it is valuable and can be sold. In addition, someone has to be accountable for the object if it is damaged. The object can still be classified as mal even though it is a small amount, such as a coin or any equivalent for it, because people are still interested in owning it. The valuable things should have two criteria: first, they should be beneficial to people. Second, in general, their values will increase when the prices rise.

*The concept of mal or property according to Hambali School, mal is something in which here exists a lawfully permissible benefit without resulting from pressing need or necessity , maintains that the things in which there is no benefit in essence, such as insects, or where there might exist benefit but it is legally prohibited, such as wine, or there is a lawfully permissible benefit but only in the situations of pressing need, such as keeping a dog, or in the situation of necessity, such as the consumption of a carcass when in dire need of survival, are excluded from the status of mal.

“And do not eat up your property among yourselves for vanities nor use it as bait for the judges with intent that ye may eat up wrongfully and knowingly a little of other’s people”

(Al--Quran, 2: 188)

“To those weak of understanding make not over your property which Allah hath made a means of support for you but feed and clothe them therewith and speak to them words and kindness of justice”.

Al Qur’an (4: 5)

*It must be valuable.

*It could be owned and useful.

*The useful item must be utilized based on Islamic principle for muslim.

*Things that not required to be owned even though give some useful such as air, fire, water, sea, grass are not consider as Mal.

*A thing that is yet to be owned by someone is also consider as Mal.

*It must be use not against any shariah principle

*Haq literally means "an established matter that cannot be denied"

*Haq as what a person is entitled to, thus, implying some kind of a "right".

*Haq may be defined as whatever is established exclusively (in favour of the owner) and to which the law accords control and obligation to realize a specified interest.

*This definition gives the owner of the Haq an exclusive and legal right of control over the object of the right.

*The classical jurists also defined haqq in the light of the two prevalent classifications of haqq into the haqq of Allah and the haqq of people. In this line, al-Qarafi define haqq of Allah as His commands and prohibitions; and haqq of people as their interests (masalih).

A permissible right gives the owner the right of either to act or not to act, since the law neither commands nor forbids him to do so. For example, is the individual's right to own property. Until the right is exercised, it is considered a liberty. A permissible right will only become a confirmed right after the actual acquisition of the property, for example, by way of purchase, gift or inheritance. Once a right is confirmed, it has the force of law and must be respected by others.

An obtainable right is in between the permissible right and the confirmed right and occurs when a person can, but is yet to acquire a confirmed right through the exercise of his unilateral wish. For example, when a person is offered to buy merchandise, an obtainable right is created in his favor. If he accepts the offer by buying the merchandise, the obtainable right is now converted into a confirmed right that can be enforced by the law.

*Both permissible and obtainable rights are weak because they cannot be sold, inherited, or made a basis of a claim for compensation.

*A confirmed right entitles the bearer an exclusive advantage that can be inherited and made a basis of a claim for compensation.

*Another way to classify Haq is by consideration of its relation to property. In this sense, Haq can be classified into first, financial or property right (haqq mali) and second, non-proprietary right (haqq ghayr mali).

*Haqq mali has been defined as a right that is related to property, and its object is property or something valued with property.

*The property right also regulates the financial relationship between one person and the other. It is distinct from the other rights because haqq mali is capable of being negotiated (tanazul) and transferred (intiqal) from one person to the other, and is also capable of being the subject matter of a transaction.

Haqq mali can be further divided into two main types. There are;

1. Al-haqq al-mali al-shakhsi

2. Al-haqq al-mali al-ayni

*Al-haqq al-mali al-shakhsi refers to the property right that the law accords to an individual over the other, whereby the object of such right is the performance of an act or obligation, or the abstinence from doing an act. Thus, an individual property right presupposes the existence of three main elements. There are the owner of the right (sahib al-haqq), the object of the right (mahall al-haq) and the person obliged under the right (man alayhi al-haqq).

*Al-haqq al-mali al-ayni on the other hand refers to the property right that the law accords to an individual over a specific thing or property. Thus, the corporeal property right presupposes only two constituents. The owner of the right and the object of the right.

*Manfa’ah called as intellectual property which cannot be see and touch. Refer to something that is beneficial to human. Classified as incomplete property.

*Describes as something which a person or corporation can have ownership of and can transfer ownership of to another person or corporation, but has no physical substance.

*Example artistic, author of book.

*According the jurist, intellectual property is al-Mal. Hanafi school mention manfa’ah not al-mal and cannot be inherited. Selling of it does not imply the transfer of ownership of the property, buyer just get the benefit of the property.

*Contract al-manfa’ah will be terminated when contract expired; property damaged, and deceases of any parties in the contract.

*Usufruct is the legal right to use and derive profit or benefit from property that belongs to another person, as long as the property is not damaged.

*There are several types contract that used concepts of manfa’ah. There are borrowing, ijarah, waqaf, wassiah, and ibahah.

*In borrowing situations, haq owned by creditor and manfa’ah owned by debtor. According to Hanafi and Maliki school refer to giving away the benefit of something to someone without any consideration in return. According to Syafiee and Hanbali school mentions as the permission to use the benefit of something without consideration. It is not a non-binding contract. Example borrows the money.

*In ijarah or renting situations, normally a contract of selling the benefit of a property at a specified price and period. Ownership of the property is not transferrable. The owner is liable for maintenance of the property. Example rental house.

*Waqaf refer to a voluntary contribution of a special property by the owner for the benefit of the society. Example waqaf for education or waqaf for health services.

*Wasiyyah is a will or a document which states a person’s property that will be distributed after death. The property is distributed using Faraid and the new owner can use the property as he like by following the will itself.

*Ibahah refers to the permission to use the benefit of or consume something. Example the permission to stay in someone’s house.

*Manqul is property that can be move from one place to another place.

*Hanafi school mention manqul as anything that can be move from one place to another, with or without changing its original form of structure. Example car.

*Maliki school mention manqul as anything that can be moved from place to another without changing its original form. Example cloth, computer.

*Ghair Manqul or Mal Aqar is property that cannot be move from one place to another place.

*Hanafi school mention as property that cannot be moved from its original places. Example land.

*Maliki school mention as anything that cannot be moved or anything that can only be moved when its original form can be changed. Example building.

*There are benefits from manqul and ghair manqul types properties.

1. Syuf’ah (co-ownership) is only applicable to immovable property.

2. If the property is movable (manqul), most of jurist said that syuf’ah cannot be applied.

3. Waqaf is only valid using ghair manqul, but other jurists ruled that waqaf is valid on ghair

manqul and manqul.

4. Movable property of wasiat is able to sell for anytime if necessary but not in immovable property. However there are some

reason for the custodian to sell immovable property such as to pay debt.

*Mal-Mithliy or homogeneous refer to the property in the market that has same value.

*Example your pencil borrowed by your friend, then he lost your pencil. So, he must buy the new one which exactly same.

*If the two of properties have differences, it must be acceptable by both parties.

*Mithliy property can be divided into four types:

oProperty that can be measured such as wheat, rice and others.

oProperty to be weighted, such as cotton, iron and others.

oProperty that can be counted as almost the same size as eggs, oil and others.

oProperty that can be measured with a meter or yard as the same kind of cloth, the same wood cuts and types.

*Mal-Qimmiy refer to non-substitute but different in value.

*Qimiy property is property that is not there yet in any similar or equivalent to each other in the streets or in stores, or available for a similar property but the prices vary from one another as number of animals or several lots of land, trees, houses, jewels, books written by hand or books that have been used, as well as in the property, such as fruits qimiy a different size from one to others.

*Example antique goods like Taming Sari cannot be replaced.

Qimiy property will become the property Mithliy and vice versa can occur in several circumstances:

*By reason of the expiration in the market, when finished Mithliy property on the market, then qimiy property switch to mithly property.

*When the Mithliy property mixed with both types of Mithliy property and different mixed, so the two types of property that the Switch Mithliy Mithliy condition of the property to the property as mixed rice qimiy with grain and so on.

*If property Mithliy exposed to fire or drowning in the ocean, then be turned into assets such Mithliy qimiy property.

*If the property has occurred mithliy defects or have been used, and it is qimiy specific property. Real estate mithliy qimiy turn to when there is much qimiy property after it is rare people.

*If a property is rarely able to be purchased in the market, then the property is already a lot, it turns into a real estate qimiy mithliy evaluated after a specific price.

*Property value or which has been assessed against the person are more common than qimiy property. Property that has been accounted for property mithliy and qimiy.

Benefits from grouping of Mithliy and Qimmy;

*Compensation for any damages for both.

*In Mithliy, damages must be compensated with the same value and amount.

*In Qimmiy, damages should be compensated with the equivalent value of damages.

*Repayment of debt, can be used in mithliy, but cannot be used in qimmiy.

*Mal-Istihlakiy refers to anything that can be only be used by changing or destroying its original form. Example foods or drink of water.

*Istihlakiy property may be accepted for the purpose contract to spend his substance such as debt money and the food.

*Mal-Isti’maly refers anything that can be used without changing its original form or structure. Example book or pen.

*Isti`maliy is adopted and sustained use, the property may be taken as well as the benefits of a permanent essence such as fixed assets, carpeting, clothing, books and others.

*Isti`maliy property acceptable to the religious with the aim of using it as tenancy and borrowing.

*Mal-Mutaqawwim refers to any property that is possed and legal in view of shariah.

* Two conditions are possessed by legal owner and useful and beneficial for human and not against shariah principle. Example car, handphone.

*Ghair mutaqawwim refer to any property that is not possessed by someone and non-permissible property.

*Example fish in the ocean, pig

*The non-permissible property is however is consider as al-mal to non-Muslim.

5.2 Define the concept of ownership in Islam

5.2.1 Define ownership 5.2.2 Identify the types of ownership a. Milk At-Tam (Complete Ownership) b. Milk An-Naqis (Incomplete Ownership)

DEFINE OWNERSHIP Ownership and right to property is the inherent

right of a man to exercise his rights over property which he possesses and control with obligations connected therewith in the property acquired, such as to use for his own pleasure, to transfer and to extinguish his right by way of transfer if he chooses.

Every human being has a right as inherent to his status to make such use of his physical and mental faculties as he chooses, provided he does not interfere with similar liberty of others. It is by the exercise of this inherent right that rights and obligations connected with property are mostly acquired, transferred or extinguished.

milkiyah Muslim jurists used word ownership as Milkiyah

and the property as Mal. The term al-Milk, however is sometimes used for ownership and at other times for the subject matter of ownership.

Ownership is defined by Muslim jurists as the relationship that exists between a person and a thing that gives absolute control and right of disposal over it to the exclusion of others. Some of them also define it a the relationship between man and property that has been established by the shariah through which he exercises exclusive control and right of disposal over it as long as there is no shariah restriction. This however does not change the essential nature of the definition with respect to control and exclusion of others.

We can distinguish ownership between three major categories as; a private ownership, public ownership, and waqaf.

PRIVATE OWNERSHIP Islam recognizes private ownership as the individual’s

property and permits the ownership of all types of property acquired by lawful means. The authority of this sanction may be elucidated from the following surah An-Nisa’ verse 02 and An-Nisa’ verse 32.

Islam also recognizes the right of inheritance and obviously it can only be recognized by a system in which the people have the right of ownership. Islam considers the rich trustees and claims them to vindicate their trust-worthiness by so dealing with their wealth that it becomes not wealth reflective.

Islam gives guarantee or the safety of the property of the citizens and inflicts heavy punishment on culprits. Thieves and robbers, who endanger the safety of property of the citizens and do not honour their rights are very severely punished by Islamic State.

PUBLIC OWNERSHIP

We must distinguish between the public ownership and government ownership of the property. In past, fuqaha have spoken about the streets and rivers. And have maintained that there are owned by the community and not by the government. Nabi Muhammad PBUH has stated that people are full partners in water, grazing and fire. These belong to community and the government should utilize them for the benefit of all.

WAQAF Waqaf is not mentioned in al-Quran explicitly, but

it is implicit in the teachings of the al-Quran and Hadith. Waqaf is meant to take resources away from the private ownership and allocate them to the benefits of those who need the fruits or results of such projects.

Waqaf is independent from the control of both the private sector and the government. It belongs directly to the society and is perpetual source of income to its beneficiaries.

THE TYPES OF OWNERSHIP

Milk At-TamMilk An-Naqis

*Total ownership = Legal and beneficial ownership. This means that the owner enjoys the legal rights associated with legal ownership (haq) and the benefits derivable from usufruct (manfaah)

Milk At-Tam can define as total ownership, which legal ownership without beneficial ownership, or vice versa. An owner holding only one or the other is unable to enjoy the full rights or benefits that come with total ownership.It has the characteristics of:a)Complete authority: the ability of the owner to manipulate the property and its usufruct in the Syariah lawful conventional transactions (such as selling, leasing, gift, and will), succession as in inheritance, and the fruit of its production;b)Continuity: the property is used unconditionally for a time or a situation within the syariah teachings, as long as the property exists;c)No compensation: when damaged, the owner is not obliged to refund anyone, but his/her responsibility is a religious and moral one, which may lead to power of attorney ( Hajr).

*Partial ownership = Legal ownership without beneficial ownership, or vice versa. An owner holding only one or the other is unable to enjoy the full rights or benefits that come with total ownership.

Another type of ownership is Milk An-Naqis. Milk An-Naqis refer as Partial ownership. It is legal ownership without beneficial ownership, or vice versa. An owner holding only one or the other is unable to enjoy the full rights or benefits that come with total ownership.

It is divided into three;

ownership over rights, ownership over property only and ownership over usufruct only.

•OWNERSHIP OVER RIGHTS•OWNERSHIP OVER PROPERTY ONLY •OWNERSHIP OVER USUFRUCT ONLY

OWNERSHIP OVER RIGHTS These refer to the rights included in a land (huquq al

irtifaq or easement rights). Easement rights in general mean the benefit of an individual or group properties from another property publicly or privately owned. It has to be noted that there are some differences between the easement right (Haq Al Irtifaq) and the right of benefit ( Haq Alintifa’ ).

The main difference is that; Easement rights are always specific for immovable property (examples a land or a house), while the right of benefit is general for any object movable, immovable, or human (examples a book).In case of privately owned properties, the individual as well as the group has the easement rights because of the attachments and geographical topographical relationship between properties.

For example, the right of water, the right of irrigation, the right of drainage, the right of passage and other neighbourhoods rights such as the right of upper or lower floor neighbour’s, the right of next door neighbours and the right of pre-emption. These rights are included and are subservient to the land and cannot be independently traded. Any one, who owns the land, owns these rights.

OWNERSHIP OVER PROPERTY ONLY It refers to a situation where a property is owned by

one person and its usufruct by another or in Arabic, Mulk al ‘ain.

For example, in a leased house, the lessee has the right to take the possession of the house and use it for the leasing period. During the period, the house owner’s right is not complete. He cannot lease the same house to other nor can he sell it without the lessee’s permission. Same as when a person leaves a will to another person to own the use of a property for a period of time, then after that, his inheritors own the property and the usufruct. During this period the inheritor owns the property only, but not the usufruct. However, this is not a common situation.

OWNERSHIP OVER USUFRUCT ONLY It is the complement of the second (ownership over

property only). It refers to the same situation where a property is owned by one person and its usufruct by another. This type of ownership is also referred as beneficial ownership and Mulk al manfa’ah.

One owns the ownership for a specific period of time and has the right to sell this usufruct or make others share it with him. Examples of this type are leasing (Ijarah), borrowing ( Ijarah), endowment (waqf ), and wills (wasiyyah). Ownership over usufruct could also be granted through permission (ibahah) where a person permits another to use, for instance, his car or computer.

Numerous verses in the Qur’an give a clear indication that

everything is owned by Allah (God) and that property in the absolute sense belongs to Him,

and to Him alone.

The Prophet PBUH once said; “One should not harm himself or others” (Narrated by Muslim). 

جزاكم الله خير الجزاء

THANK YOU