(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashta, Amir of Hizb ut Tahrir, to the Questions of his Facebook Page Followers - "Fiqhi")
**Answer to a Question**
**The Shari’ah Rule: The *'Illah* (Legal Reason) Revolves with the *Ma’lul* (Ruling) in its Existence and Absence**
To Rafiq Ahmed Abu Ja’far
Question:
Assalamu Alaikum wa Rahmatullahi wa Barakatuh. May your efforts be blessed, and may Allah reward you with goodness...
Our honorable Sheikh, I would like to ask a question regarding the Shari’ah rule "The 'illah revolves with the ma’lul in its existence and absence..." The question is as follows: The Messenger (saw) was asked about selling fresh dates (rutab) for dried dates (tamr), and he asked: "Do fresh dates decrease when they dry?" It was said to him: "Yes." So he said: "Then no..." Now, if we knew the amount of decrease with certainty and compensated for it, would the sale be permissible? In other words, if the weight of the fresh dates was one kilogram and it becomes 900 grams when it becomes dry dates, is it permissible for us to sell 900 grams of dry dates for one kilogram of fresh dates? If the answer is that the sale is not permissible, then what is the benefit of saying the 'illah is the decrease?
Answer:
Wa Alaikum Assalam wa Rahmatullahi wa Barakatuh,
You are referring in your question to what was mentioned in The Islamic Personality (Al-Shakhsiyya al-Islamiyya), Volume 3, regarding the 'illah by indication (dalalah). I will quote for you some of what was mentioned in The Islamic Personality that is relevant to your question:
"(As for the 'illah indicated by the evidence through dalalah (indication), which is called al-tanbih wa al-ima’ (alerting and allusion), it is of two types:
First: That the ruling is applied to an informative description...
Second: That the causality (ta’leel) is necessary from the linguistic meaning of the word, and not that the word indicates causality by its literal placement, and it is of five types:
...
Third: That the Legislator mentions a description along with the ruling which, if causality were not assumed through it, its mention would be useless, and the status of the Legislator is far above such futility. Legislative texts usually have a legislative consideration for everything mentioned in them; therefore, this description is considered an 'illah, and the text is considered to be reasoned (mu'allal). This is like when the speech is an answer to a question, whether the description was in the subject of the question itself, or if it turned from the subject of the question in explaining the ruling to something similar to the subject of the question. This is as was narrated from him (saw):
أَنَّهُ سُئِلَ عَنْ جَوَازِ بَيْعِ الرُّطَبِ بِالتَّمْرِ، فَقَالَ النَّبِيُّ ﷺ: هَلْ يَنْقُصُ الرُّطَبُ إِذَا يَبِس؟ فَقَالُوا: نَعَمْ، فَقَالَ: فَلاَ إِذَنْ
'That he was asked about the permissibility of selling fresh dates for dried dates, so the Prophet (saw) said: "Do fresh dates decrease (in weight) when they dry?" They said: "Yes." So he said: "Then no."' (Narrated by Al-Daraqutni).
The association of the ruling with the description of 'decrease' in their answer that fresh dates decrease when they dry cannot be in vain; rather, it must be for a benefit. And the association of the Messenger's response regarding the sale of fresh dates with the letter «فـ» in his saying: «فَلاَ إِذَنْ», which is one of the forms of ta’leel (reasoning), indicates that the decrease is the 'illah for the prohibition of selling fresh dates for dried dates, by his arranging the ruling upon the description with the letter «فـ», and its association with the word «إِذَنْ». In this example, the description mentioned was within the subject of the question.
An example of when the description is outside the subject of the question is when one turns in the explanation of the ruling to mention an equivalent to the subject of the question. This is as was narrated from him (saw) when the Khath’amiyyah girl asked him and said: 'O Messenger of Allah, my father has passed away and the obligation of Hajj was upon him. If I perform Hajj on his behalf, will that benefit him?' He (saw) said:
أَرَأَيْتِ لَوْ كَانَ عَلَى أَبِيكِ دَيْنٌ أَكُنْتِ قَاضِيَتَهُ؟ قَالَتْ: نَعَمْ. قَالَ: فَدَيْنُ اللَّهِ أَحَقُّ بِالْقَضاء
'Tell me, if your father had a debt, would you be the one to pay it off? She said: Yes. He said: Then the debt to Allah is more deserving of being paid.'
The Khath’amiyyah girl only asked about Hajj, but the Prophet (saw) mentioned the debt of a human being. He mentioned to her an equivalent to what was asked about, and not the answer to what was asked itself. However, he mentioned it by arranging the ruling she asked about upon it. Thus, the association of the ruling with a description, which is 'debt,' cannot be in vain; rather, it must be for a benefit. The Messenger's (saw) mention of this description along with the arrangement of the ruling upon it indicates reasoning (ta’leel) by it, otherwise its mention would be in vain.) End quote.
As you can see, this text included the answer to your question in which you said: 'And if the answer is that the sale is not permissible, what is the benefit of saying the 'illah is the decrease?' The research explained the benefit of the decrease in fresh dates when they dry, saying: (The association of the ruling with the description of 'decrease' in their answer that fresh dates decrease when they dry cannot be in vain; rather, it must be for a benefit. And the association of the Messenger's response regarding the sale of fresh dates with the letter «فـ» in his saying: «فَلاَ إِذَنْ», which is one of the forms of ta’leel, indicates that the decrease is the 'illah for the prohibition of selling fresh dates for dried dates, by his arranging the ruling upon the description with the letter «فـ», and its association with the word «إِذَنْ». In this example, the description mentioned was within the subject of the question).
The benefit here is the existence of the 'illah; meaning that the mention of the decrease is what clarified the reason for the prohibition of selling fresh dates for dried dates. Therefore, it is not correct to ask: 'What is the benefit of saying the 'illah is the decrease!' This question is misplaced; rather, as stated in the research, it is: 'What is the benefit of mentioning the decrease?' The association of the ruling with the description of decrease is what must have a benefit, which is that the decrease is the 'illah for the prohibition of selling fresh dates for dried dates. Had it not been for that, mentioning the decrease would have no benefit. Its benefit is the clarification of the 'illah for the prohibition of the sale. The Messenger (saw) was asked about selling fresh dates for dried dates, so the Messenger (saw) asked the questioner: 'Do fresh dates decrease when they dry?' When it was said yes, he (saw) said: «فَلاَ إِذَنْ».
As for why it is not permissible to compensate for the decrease—meaning as you stated in your question: 'If we knew the exact amount of the decrease and compensated for it, would the sale be permissible?'—in other words, to buy a weight of fresh dates for a weight of dry dates and then take an addition over the weight of the fresh dates equal to the difference in weight between it and the weight of the dry dates... for example, if a weight of fresh dates decreases by 100 grams when it dries, and you wanted to give him a weight of dry dates and he gives you a weight of fresh dates plus an additional 100 grams... this is not permissible in ribawi (usurious) items. If you exchange them for their own genus, it is not permissible to take what is called arsh (compensation), which is the difference in quality or the difference in characteristics between two types of the same genus. This is not permissible in ribawi items; rather, you sell the dried dates for a price (money) and buy the fresh dates with that price. The evidence for this is:
Al-Bukhari narrated in his Sahih from Yahya, who said: I heard 'Uqbah bin 'Abd al-Ghafir that he heard Abu Sa'id al-Khudri (ra) say:
جَاءَ بِلَالٌ إِلَى النَّبِيِّ ﷺ بِتَمْرٍ بَرْنِيٍّ فَقَالَ لَهُ النَّبِيُّ ﷺ مِنْ أَيْنَ هَذَا قَالَ بِلَالٌ كَانَ عِنْدَنَا تَمْرٌ رَدِيٌّ فَبِعْتُ مِنْهُ صَاعَيْنِ بِصَاعٍ لِنُطْعِمَ النَّبِيَّ ﷺ فَقَالَ النَّبِيُّ ﷺ عِنْدَ ذَلِكَ أَوَّهْ أَوَّهْ عَيْنُ الرِّبَا عَيْنُ الرِّبَا لَا تَفْعَلْ وَلَكِنْ إِذَا أَرَدْتَ أَنْ تَشْتَرِيَ فَبِعْ التَّمْرَ بِبَيْعٍ آخَرَ ثُمَّ اشْتَرِهِ
"Bilal came to the Prophet (saw) with Barni dates, so the Prophet (saw) said to him: 'Where is this from?' Bilal said: 'We had inferior dates, so I sold two Sa’s for one Sa’ to feed the Prophet (saw).' Thereupon the Prophet (saw) said: 'Oh! Oh! This is the very essence of Riba (usury)! This is the very essence of Riba! Do not do that. But if you want to buy, sell the (inferior) dates for another sale (for money), then buy it (the superior dates).'" (Also narrated by Muslim).
Summary: The benefit of mentioning the decrease is to clarify the legal reason ('illah) for prohibiting the sale between dried dates and fresh dates because fresh dates decrease when they dry. As for the impermissibility of paying the difference or what is called arsh, it is because it is not permissible to take a difference in ribawi items of the same genus.
I hope this is sufficient, and Allah is All-Knowing and All-Wise.
Your brother, Ata Bin Khalil Abu Al-Rashta
06 Jumada al-Akhirah 1439 AH Corresponding to 22/02/2018 CE
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