(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir, to questions from his Facebook page "Fiqhi")
Answer to a Question Zakat and the Debts of Father and Son
To: Abu Khaled
Question:
As Salaam Alaikum Wa Rahmatullah Wa Barakatuhu our honourable Sheikh, and warm greetings to you.
I have a question regarding Zakat and debts, I hope you have the time to answer my questions.
My father has a lot of debt. Now it is customary with us that we do not distinguish between the money or debts of the father and the son. That means his debts are also mine automatically and we both work to settle them. But what does it look like in Islamic law? Especially from the perspective of Zakat? Is only my father debtor and is freed from the zakat or are we both?
Barkallahu feekum, may Allah bless you and many greetings from the Shabab in Germany.
Answer:
Wa Alaikum Salaam Wa Rahmatullah Wa Barakatuhu.
1- From a Sharia perspective, the father's wealth is distinct from the son's wealth, and the father's debt is distinct from the son's debt. Sharia has granted the father the right to dispose of his wealth and the son the right to dispose of his. Sharia has established rights and obligations regarding the father’s wealth regardless of the son’s wealth, and established rights and obligations regarding the son’s wealth regardless of the father’s wealth because each of them has an independent financial liability (dhimmah). For example, Sharia has obligated the father to pay Zakat on his wealth when it reaches the Nisab and a full lunar year (Hawl) has passed, regardless of his son's wealth, and it has done the same for the son. For instance, Sharia allows the son to own property in exchange for effort he exerts regardless of his father's wealth, and so on. Every individual in Islam has a liability specific to them according to the Sharia rules.
2- Among the evidences that the son's wealth is not the father's wealth, and the father's wealth is not the son's wealth:
a- The son does not inherit all of the father's wealth; rather, others share it with him. Similarly, the father does not inherit all of the son's wealth; others share it with him. Allah (swt) says:
يُوصِيكُمُ اللهُ فِي أَوْلَادِكُمْ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ
"Allah instructs you concerning your children: for the male, what is equal to the share of two females." (Surah An-Nisa 4:11)
Then He said:
وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ مِمَّا تَرَكَ
"And for one's parents, to each one of them is a sixth of his estate." (Surah An-Nisa 4:11)
Allah (swt) gave others inheritance along with the parent from the son’s wealth. Thus, it is impossible for the wealth to belong to the father during the son's life and then part of it goes to someone other than the father upon his death. Allah (swt) said in the verse of inheritance:
وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ
"And for one's parents, to each one of them is a sixth." (Surah An-Nisa 4:11)
He granted the mother a share in his wealth upon his death, and it is impossible that she would be entitled to a part of wealth belonging to his father, rather than the son himself, just because her son died!
b- Before the distribution of inheritance, the father or the son may make a will, and the will is executed whether the son or father is pleased or not. Before that, his debt is paid before the inheritance is distributed, which indicates that the deceased’s estate is his own wealth and not the wealth of his father or son. Allah (swt) said:
مِنْ بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ
"After any bequest he [may have] made or debt." (Surah An-Nisa 4:11)
Thus, it is impossible that the payment of his debt would be obligatory from property belonging to his father and not him, or that a will from him would be permissible in property belonging to his father and not him.
c- The Hadith regarding the sacrifice (Udhiyah) narrated by Ahmad in his Musnad from Abdullah bin Amr, who said: A man came to the Messenger of Allah (saw) and said: "Read to me, O Messenger of Allah... and by the One Who sent you with the Truth, I shall never add anything to it." Then the man turned away, and the Messenger of Allah (saw) said: "The little man has succeeded, the little man has succeeded." Then he said: "Bring him to me." When he came, he said to him: "I have been commanded with the Day of Adha, which Allah has made an Eid for this Ummah." The man said: "What if I find nothing but my son's borrowed animal (manihah), should I sacrifice it?" He (saw) said: "No, but you should cut your hair, clip your nails, trim your mustache, and shave your pubic hair; that is the completion of your sacrifice with Allah." Abu Dawud narrated something similar. In Sharh Ma'ani al-Athar, it is similar. Al-Daraqutni narrated it in his Sunan with the wording: "The man said: 'What if I find nothing but my father's borrowed animal or my father's sheep and my family's sheep and their borrowed animal, should I slaughter it?' He said: 'No, but clip your nails, trim your mustache, and shave your pubic hair; that is the completion of your sacrifice with Allah.'"
Since it is not permissible for the father to sacrifice his son’s borrowed animal or for the son to sacrifice his father’s borrowed animal, this means the father's wealth is distinct from the son's wealth.
d- It is stated in Mawahib al-Jalil fi Sharh Mukhtasar Khalil (2/505) by Al-Hattab al-Ru'ayni al-Maliki (d. 954 AH):
"(Ninth) If he has a debt, then paying it takes precedence over Hajj without dispute, unlike his father’s debt, as Hajj takes precedence over it, whether we say Hajj is immediate or can be delayed, and whether the debt is deferred or due. This was stated in Al-Tiraz, and its text is: 'Even if he has a debt and has wealth in hand, the debt has more right to his wealth than Hajj.' This was said by Malik in Al-Mawwaziyyah. It was said to him: 'If his father has a debt, should he pay his father’s debt or perform Hajj?' He said: 'Rather, he performs Hajj.' This is clear, for Hajj is a debt upon him whether immediately or delayed, while his father’s debt is not upon him, neither due nor deferred. Performing what is obligatory upon him is more prior than performing what is not obligatory upon him.)" End quote.
3- This is how the Hadith "You and your wealth belong to your father" is understood:
It is stated in Sharh Mushkil al-Athar: "(From Jabir bin Abdullah, that a man came to the Messenger of Allah (saw) and said: 'I have wealth and children, and my father has wealth and children, and he wants to take my wealth to his wealth.' The Messenger of Allah (saw) said: 'You and your wealth belong to your father.'... I asked Ibn Abi Imran about it and he said: His saying (saw) in this Hadith 'You and your wealth belong to your father'... is like the saying of Abu Bakr (ra) to the Prophet (saw): 'I and my wealth are only for you, O Messenger of Allah' when the Messenger of Allah (saw) said: 'No wealth has benefited me as the wealth of Abu Bakr has benefited me.' He means the Hadith from Abu Hurayrah, who said: The Messenger of Allah (saw) said: 'No wealth has ever benefited me as the wealth of Abu Bakr has benefited me.' He said: Abu Bakr (ra) said: 'I and my wealth are only for you, O Messenger of Allah.' Abu Bakr's intention by this saying was that 'your words and actions are as effective regarding me and my wealth as the words and actions of owners are effective regarding their property.' Such is the saying of the Messenger of Allah (saw) to the questioner mentioned in this Hadith, and it is based on this meaning, and Allah knows best.)"
Similarly, Ibn Hibban narrated in his Sahih: "(From Aisha (ra) that a man came to the Messenger of Allah (saw) disputing with his father regarding a debt he owed him. The Prophet of Allah (saw) said: 'You and your wealth belong to your father.')" Abu Hatim said: Its meaning is that he (saw) rebuked him from treating his father as he would treat strangers, and commanded him to be dutiful to him and kind in both word and deed until his wealth reaches him. He said to him, 'You and your wealth belong to your father,' not that the son's wealth is owned by the father during his life without the son's consent. Ibn Raslan said: The "L" (Lam) is for permission, not for ownership, for the son’s wealth belongs to him, its Zakat is upon him, and it is inherited from him.
4- Accordingly, you must pay Zakat on your wealth, and your father must pay Zakat on his wealth if it reaches the Nisab and a full year has passed, provided there is no debt upon him. If there is a debt, he pays Zakat on what remains after settling the debt, if that remainder is more than the Nisab. This is because the adopted opinion we hold is that debt prevents Zakat if it exhausts the wealth or reduces it below the Nisab. It states in our book, Funds in the Khilafah State, when discussing the Zakat of debt (page 165):
"(Whoever has wealth that has reached the Nisab, and a year has passed over it, and he has a debt that exhausts the Nisab, or makes the remaining wealth, after paying the debt, less than the Nisab, then there is no Zakat upon him. This is like owning a thousand dinars while owing a thousand dinars in debt, or owning forty gold dinars while owing thirty gold dinars. In these two cases, there is no Zakat upon him, because he is not the owner of the Nisab. On the authority of Nafi’ from Ibn Umar who said: The Messenger of Allah (saw) said: 'If a man has a thousand dirhams and owes a thousand dirhams, there is no Zakat upon him.' Mentioned by Ibn Qudamah in Al-Mughni.)"
"However, if the wealth remaining after the debt reaches a Nisab, then he must pay Zakat on it, as narrated by Abu Ubayd from Al-Sa’ib bin Yazid who said: I heard Uthman bin Affan saying: 'This is the month of your Zakat. Whoever has a debt, let him pay it so that you can pay the Zakat on your wealth.' Ibn Qudamah mentioned it in Al-Mughni with the wording: 'Whoever has a debt, let him settle his debt and pay Zakat on the rest of his wealth.' He said this in the presence of the Sahaba and they did not object to it, which indicates their consensus (Ijma)." End quote from the book Funds in the Khilafah State.
Accordingly, if the questioner's father has wealth that reached the Nisab and a year has passed, and he (the father) has a debt, he deducts the debt he owes from the wealth he has. If the debt exhausts all the wealth or what remains is less than the Nisab, then there is no Zakat on the father. If what remains of his wealth exceeds the Nisab, he pays Zakat on what remains of the wealth after deducting the debt he owes.
As for the children of the debtor (the father), the debt is not attached to their liability as understood from the question; rather, it is a debt upon their father and attached to his liability, not theirs. What they are doing is assisting their father in paying his debt, which is a form of filial piety (Birr al-Walidayn), an act strongly urged by Islam: "And be kind to parents." Al-Bukhari narrated from Abdullah bin Mas'ud (ra): "I asked the Messenger of Allah (saw): 'O Messenger of Allah, which deed is best?' He said: 'Prayer at its appointed time.' I said: 'Then which?' He said: 'Then kindness to parents.' I said: 'Then which?' He said: 'Then Jihad in the way of Allah.'"
Therefore, the children's assistance to their father is part of filial piety, but the children are responsible for the Zakat on their own wealth after paying their own debts. If their wealth reaches the Nisab and a year has passed, they must pay Zakat on their wealth. However, if they pay their father's debt from their wealth before the year passes, they do not pay Zakat on the money used to pay their father's debt because it left their possession before Zakat became obligatory upon them. They must pay Zakat on the wealth that remains with them after paying the debt if the remaining wealth reaches the Nisab or more and a year has passed.
Your brother, Ata Bin Khalil Abu Al-Rashtah
22 Shawwal 1438 AH 16/07/2017 CE
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