A deal between two persons should be in their respective clear-cut and mutually exclusive benefits. Ambiguity with regard to the benefit that will finally accrue to any one party will render the deal as Islamically incorrect and unacceptable. A number of Prophetic traditions have described this principle.
Abu Hurairah relates that Allah’s Messenger (peace and blessings of Allah be to him) forbade an ambiguous deal (naha anbaial-gharar). [Reported in a number of books of Prophetic traditions including Muslim (Number 1513), Abu Daud, Nasaai, Ibn Maajah, Ahmad, Dar Qutni, and Baihaqi]
The word gharar in the above tradition of the blessed Prophet may be translated, besides ambiguity, as indistinct, detrimental, misleading, delusion or deception. As it is in the nature of a terminology reflecting its own specific meaning, its literal translation may not serve the purpose of correct understanding. It means unclear and uncertain benefit. As both the parties have entered into the deal for their own mutually exclusive advantages and gains, nothing should impair their respective objects. Any condition or situation whereby the intended gain of any of the party is not certain is known as gharar which has been forbidden by the blessed Prophet.
This particular Prophetic tradition falls within the group of forbidding traditions. The blessed Prophet did not talk about or gave his opinion about all things prevalent in his times. His silence is also a form of tradition because he would have forbidden things which were not in order. Wherever he found anything wrong he categorically forbade that. His companions (may Allah be pleased with all of them) recorded those events as naha an ‘…’ (The Prophet forbade ‘…’).
In this particular case, apart from a general statement relating to the outlawed transaction, the blessed Prophet also mentioned specific cases that were prevalent in his times. Most of the types of business transactions which he disallowed are not practised these days as such. However, a mention of a few of those types of businesses may help us understand the nature of this prohibition so that we may apply that to the transactions prevalent in our times. And this is exactly the object of this write-up.
The blessed Prophet forbade sale of a camel not yet born. [Recorded in Muslim (Number 15140), Bukhari (Number 2143), Tirmizi (Number 1229), Abu Daud, Mo’atta, Ahmad, Nasai).
The reason behind the prevention of such a sale is obvious as the camel, not yet born, may or may not born-alive or it may be a he-camel or a she-camel. The product to be made available to the buyer is non-specified and this is a case of gharar in the deal. Similarly, the blessed Prophet discouraged a particular type of purchase which was in vogue where the buyer would purchase a bundle of cloth without its proper inspection. He had to accept, with or without consent, any bundle thrown by the seller towards him. [Reported by Bukhari (Number 2144), Muslim (Number 512), Abu Daud, Ibn Maajah, Nasai, Baihaqi].
Gharar may also be translated as delusion or mirage. It may be both intended and unintended. One party in the deal might be clearly benefiting out of the deal at the cost of the delusion of the other. This amounts to cheating which is wrong in all systems of law. We cannot imagine any system or society justifying such a fraudulent deal. But, at times, the problem lies in the features of the proposed deal itself that benefit of one party is not considered and it is not obvious. This may or may not be in the advantage of the other party. It is simply a case where the benefit of one party is clear and that of the other is unclear; although the first party may not have inflicted this uncertainty or taken advantage of the confusion. The traditions of the blessed Prophet put a question mark in such cases too in which contingencies are such as the advantage of one party to the deal is in delusion. The respective objects of both the parties should be obvious from day one and the deal, as such, should not be of doubtful credentials.
GHARAR RELATED ISSUES
Some amount of ambiguity is permissible. For example, hiring something on monthly rental basis will be valid although some months will be of 29 days and others of 30 days.
The delusion in all cases may not mean disadvantage befalling on one party. There may be cases of windfall gains. Ambiguity, whether advantageous or disadvantageous, has to be avoided. Ambiguity, as such, is misleading which is not acceptable.
The principle enshrined in the disallowance of an indiscreet (gharar) deal is very much relevant today. One example will suffice. This is one of the issues that hit the system of insurance prevalent these days. Insurance premium paid by the clientele is known but the benefits available to them from the insurance companies are not certain and quantifiable. This falls under the category of gharar. Islamic scholars have suggested the alternative system of takaful in order to address this problem, besides other problems in the conventional insurance arrangements.
The blessed Prophet forbade specific cases where gharar was obvious. A study of these cases indicates the principle involved and makes it possible to take a decision about specific cases of business and trade prevalent in our times.
We can consider a case referred to in a Prophetic tradition about the deal of purchase of fish without specification about the quantity and quality before fishing is actually done. A person offers a price for all the fish caught by a fisherman any day. As the subject matter of the deal (i.e. fish) is not specified, the deal is not proper.
The related tradition of the blessed saying “do not purchase fish while it is in water because it has (element of) gharar (uncertainty)” is not strong as to the chain of persons through which it has been recorded but the content of the tradition is agreed by all scholars because it conforms many other traditions and is in line with the teachings of the blessed Prophet on the subject. [Related by Abdullah Ibn Masood (may Allah be pleased with him) and recorded in Ahmad (number 377/1)]
It would be another matter if a person is hired for one day and assigned the job of fishing and all the fish caught by him is rightfully taken. The catch may be more or less or may be abnormally high or naught. The difference lies in the nature of arrangement. Here the arrangement relates to hiring services of a person whereas in the case of the above mentioned deal the arrangement is that of purchase and sale. Both the types of deal are guided by a separate set of rules. As the rights and duties, and obligations and responsibilities, in both the cases, are mutually exclusive, validity or otherwise of the deal in both the cases is also mutually exclusive.
In the first case the quantum of the subject matter of the deal, namely fish, to be available to one party is in doubt whereas benefit of the other party, namely price, is quantified. The deal becomes doubtful (gharar). In the other case the subject matter of the deal is the usufruct, the labour of one party, and the person assigned the job of fishing gets paid for that. The other party gets this service as agreed.