Series of Answers by the Eminent Scholar Ata bin Khalil Abu al-Rashtah, Ameer of Hizb ut Tahrir, to the Questions of the Visitors of his Facebook Page "Fiqhi"
Question:
Assalamu Alaikum... our dear Sheikh and Ameer...
May Allah protect you from every evil and harm and establish you in the land soon, if Allah wills.
An urgent question, if you please... A person owes a large sum of money to a group of merchants. Another person offered to take over the negotiations with these merchants by paying their rights immediately from his own pocket, in exchange for them reducing the value of the debt. Then, he distributes the amount deducted after the reduction by a certain percentage between himself and the debtor—meaning, the intermediary and the debtor split the discounted portion. Is this permissible? May Allah bless you and aid you in your matter.
Answer:
Wa Alaikum Assalam wa Rahmatullahi wa Barakatuh,
I have understood from your question that you are indebted to merchants... and that there is a person who wants to help you by taking on the repayment of the debt to the merchants on your behalf. However, he stipulated that he would negotiate with the merchants to reduce the value of the debt, on the condition that he receives a portion of this reduction... For example, if the debt is 10,000, he will negotiate with them; if he manages to reduce the debt to 8,000, he wants to take 1,000 from you, for instance—which is half of the reduction—in exchange for paying the debt on your behalf. In other words, he wants to guarantee you (Dhaman) in the repayment of the debt, paying it for you in exchange for a compensation ('awadh) from you, which is a percentage of the reduction he succeeds in obtaining from the creditors.
If this understanding is correct, then this transaction is not permissible because its reality is a guarantee (Dhaman); i.e., he has guaranteed the repayment of the debt on your behalf. Dhaman in Islam has conditions, and among these conditions is that the guarantee must be without compensation. However, in this case, he guaranteed you in exchange for compensation, so the transaction in this form is not permissible. The evidence for Dhaman clearly shows that it is the joining of one's liability to another's liability (damm dhimmah ila dhimmah), and that it is a guarantee for a fixed right (debt) upon the liability. It is clear that it involves a guarantor (Dhamin), a person guaranteed (Muthman 'Anhu), and a person guaranteed for (the creditor—Muthman Lahu), and it is clear that it must be without compensation. This evidence is what was narrated by Abu Dawood from Jabir, who said:
كَانَ رَسُولُ اللَّهِ e لَا يُصَلِّي عَلَى رَجُلٍ مَاتَ وَعَلَيْهِ دَيْنٌ فَأُتِيَ بِمَيِّتٍ فَقَالَ أَعَلَيْهِ دَيْنٌ قَالُوا نَعَمْ دِينَارَانِ قَالَ صَلُّوا عَلَى صَاحِبِكُمْ فَقَالَ أَبُو قَتَادَةَ الْأَنْصَارِيُّ هُمَا عَلَيَّ يَا رَسُولَ اللَّهِ قَالَ فَصَلَّى عَلَيْهِ رَسُولُ اللَّهِ e فَلَمَّا فَتَحَ اللَّهُ عَلَى رَسُولِ اللَّهِ e قَالَ أَنَا أَوْلَى بِكُلِّ مُؤْمِنٍ مِنْ نَفْسِهِ فَمَنْ تَرَكَ دَيْنًا فَعَلَيَّ قَضَاؤُهُ وَمَنْ تَرَكَ مَالًا فَلِوَرَثَتِهِ
"The Messenger of Allah (saw) would not pray the funeral prayer over a man who died while in debt. A deceased person was brought and he asked: 'Is he in debt?' They said: 'Yes, two Dinars.' He said: 'Pray over your companion.' Abu Qatadah al-Ansari said: 'They are upon me (i.e., I will pay them), O Messenger of Allah.' So the Messenger of Allah (saw) prayed over him. When Allah granted victory to the Messenger of Allah (saw), he said: 'I am closer to every believer than his own self. Whoever leaves behind a debt, its payment is upon me, and whoever leaves behind wealth, it is for his heirs.'" (Reported by Abu Dawood)
This Hadith clearly shows that Abu Qatadah joined his liability to the liability of the deceased in committing to a financial right that was owed to the creditor. It is clear that in Dhaman there is a guarantor, a person guaranteed, and a person guaranteed for, and that it—meaning the guarantee that each of them undertook—is a commitment to a right upon the liability without compensation. Thus, the Hadith contains the conditions for the validity of Dhaman and the conditions for its contract.
Therefore, for that man to guarantee you in the repayment of your debt and the manner in which he negotiates with the owner of the debt is permissible, but only without compensation. As for him wanting compensation, it is not permissible.
I repeat, if what I understood from your question is as mentioned above, then this is what I weigh as most correct in this matter, and Allah knows best and is most wise. However, if the matter is not as I understood from your question, then please clarify it for me so we may attempt to answer the new reality, by the will of Allah.
Your brother, Ata bin Khalil Abu al-Rashtah
02 Jumada al-Ula 1439 AH 19/01/2018 CE
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