Articles

The Orphans Fund Development Foundation has Canceled the Penalty Clause
Author : The General Iftaa` Department
Date Added : 05-07-2023

The Orphans Fund Development Foundation has Canceled the Penalty Clause

 

In reference to what was published on the website of the General Iftaa` Department and the fatwas it issued prohibiting the penalty clause in Murabaha contracts, the Orphans Fund Development Foundation has responded by deleting the sixth clause from its Murabaha contracts, which include the penalty clause. This was included in a letter from the Director of the Foundation Dr. Faisal Al-Hiary- (Number MA / 1/4/2290), (1st of June, 2009)-addressed to the Grand Mufti. The letter reads as follows:

 

"Since the sixth clause in the Murabaha contract used by the Foundation has not been activated from the time the Foundation started providing Murabaha services in 1988, and in order to avoid any ambiguity that may arise in the Murabaha contract, I would like to inform you that the management of the Foundation has decided to delete the sixth clause and adhere to the general rules stipulated in the Civil Code, in this regard."

 

The Grand Mufti thanked the Director of the Foundation, saying:

"I thank you for deleting the sixth clause from the Murabaha contract used at your institution, and I hope that Allah will reward you well for that. You have removed an obstacle for those who deal with your noble institution, which is keen on earning halal/lawful profits. Your institution is the first among institutions to take into account the provisions of Islamic Law, and I hope that other financial institutions will follow your example, and to you is the reward of being the first good doer in this regard."

 

Afterwards, the Director of the Foundation attached a copy of the new Murabaha contract to his letter, which showed that it was free of the penalty clause and was acceptable from the standpoint of Sharia. However, the employee in charge of executing the Murabaha contract is responsible for applying the Sharia conditions and not neglecting them. And Allah Almighty knows best.

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Summarized Fatawaa

Is it permissible for an elderly person, a pregnant woman, or someone with a chronic illness to pay fidyah before Ramadan begins?

It is not permissible for an elderly person, a pregnant woman, or someone with a chronic illness to pay fidyah before Ramadan begins.
Additionally, it is not allowed to pay fidyah for more than one day in advance, because fidyah is a substitute for fasting, and fasting is not yet obligatory at that time.
However, it is permissible to pay fidyah for a single day in advance, by analogy with paying zakat up to one year in advance.

What is the ruling on praying seated due to severe obesity, given that I experience hardship in performing the prayer — especially when rising from the ground after sujūd to perform the next rak‘ah?

All praise is due to Allah, and peace and blessings be upon our master, the Messenger of Allah ﷺ.
Standing, when one is able to do so, is a pillar of the prayer. However, whoever would experience severe, intolerable hardship, or fears harm to himself or to a limb due to obesity, or finds that standing causes him to lose his khushū‘ (humble focus and concentration) in prayer, then there is no objection to his praying seated on a chair or on the ground, performing rukū‘ (bowing) and sujūd (prostration) through gesture — provided that the gesture for sujūd is made lower than that for rukū‘. Whoever is able, at any point, to properly perform any one of these pillars, is obligated to perform it in full; for omitting it is a concession that applies only in cases of genuine inability. The Prophet ﷺ said: "When I command you to do something, do of it whatever you are able." (Related by al-Bukhārī). As the scholars of fiqh have established: what remains possible is not waived on account of what is difficult.
The criterion for determining genuine inability, as chosen by Imam al-Ḥaramayn al-Juwaynī (raḥimahullāh), is that the worshipper experiences hardship that causes him to lose his khushū‘.
As for voluntary (nafl) prayer, there is no objection to performing it while seated, even if one is able to stand. However, rukū‘ and sujūd must still be performed [in their proper physical form] by anyone who is able to do so. And Allah, the Exalted, knows best.

What is the ruling on istinja' after urination, and is it done with water and soap or with water only?

Istinja' from urine and stool is obligatory. It is permissible to perform istinja' with water alone, or with toilet paper alone. The best way is with toilet paper then water. If one wishes to suffice with one of them, then water is better. And Allah the Almighty knows best.

What is the ruling on someone who possesses gold with the intention of saving/hoarding it, and owns nothing else — is he obligated to sell a portion of it in order to pay the zakāh due on it?

All praise is due to Allah, and peace and blessings be upon our master, the Messenger of Allah ﷺ.
Zakāh becomes immediately obligatory on cash, and likewise on gold — that which is not designated for a woman's personal adornment— once both reach the niṣāb (minimum threshold liable for zakah) and a full ḥawl (lunar year) has passed over them. It is not permissible to delay payment when it is genuinely possible to pay — meaning, when the wealth and the eligible recipients are both available. It is stated in Mughnī al-Muḥtāj (Vol.2/p.129): "Zakāh is obligatory immediately once it becomes feasible to pay it, meaning when the wealth and the eligible recipients are both present."
The one paying zakāh must discharge the obligatory zakāh due on saved (hoarded) gold either from the gold itself, or from its equivalent monetary value, in the event that no other funds are available — since paying from the gold itself is the original default (al-aṣl). It becomes permissible to pay from other funds instead only because zakāh is built upon the principle of ease and leniency, as stated in Asnā al-Maṭālib (Vol.1/p.366): "When a full ḥawl has elapsed on wealth other than trade goods... zakāh attaches to the actual asset itself (al-‘ayn), and the poor effectively become partners in it — even, for example, [becoming partners] in camels through the value of a sheep [owed as zakāh on them]... Paying from other wealth is permitted only because zakāh is built upon the principle of ease and leniency."
Accordingly: the one paying zakāh must discharge it either from the actual saved gold itself, or by selling a portion of the gold equal to the amount of zakāh owed. He may also borrow money to pay the zakāh, or pay the zakāh in installments before the ḥawl is complete [as an advance payment]. And Allah, the Exalted, knows best.