Objections on Fatwa 45604

Objections on Fatwa 45604

Question:

Assalaamu Alaikum W.R.W.B.

I was out of town in jamaat for 40days and thus could not contact your department after reading your reply in 45604.

This is in response to your Fatwa # 45604, which you had replied as a response to my points on Fatwa 44188.

I had made 4 submissions from 01 July to 02 September 2020 since I had never received a reply but seems you had only taken the July one to reply which did not have the attachments.

I will be sending some more attachments on the separate email address as these are important documents to be reviewed by you.

Attachments being sent:

1) Mufti Taqi sb reply to my father in 2006 wherein he has confirmed the only financial organization he had approved in Canada was the cooperative housing corporation.

2) Mufti Taqi sb reply to me on August 26 2020 re-confirming that he had given fatwa to Ansar Cooperative housing. He is not in touch with them any more and thus cannot comment any further.

3) extracts from the pages of Introduction to Islamic Financing from Mufti Taqi sb on the permissibility to enter into any mutual agreement in case one party terminates the musharakah agreement.

4) English Fatwa of Hazrat Mufti Taqi Sb in 1989 to Ansarco.

So in your recent reply #45604

First of All mufti Jazakallah for the reply you have provided. I am a bit disappointed that the questions were cherry picked and my concerns on the big picture that I presented (referencing to Deoband permissibility on interest from banks) and the resultant negative impact on the younger generation is stereotyped by you as emotional!.

1) I may have misquoted you the reference on late fees, that was in the some other context. But here are the extracts I from Mufti Taqi Usmani sb book is clearly permitting that if one partner terminates then Musharakah agreement, the parties can enter in the beginning. So considering this I still would like you to explain why the Ansarco clause with unequal split on loss only in case of termination. Remember if the partner with Asarco is continuing till the house is transferred the issue of un-equal loss never arises.

2) You stated, that norms have changed in 31years in regards to 2% increase landlords are allowed to increase rents. Please note I had stated then and now re-stating these allowances are as recent as 2020: 

“Canada landlords are allowed ~2% of increase in rent by rental board in Ontario (year 2020 was 2.2%, year 2018/2019 was 1.9%, year 2017 was 1.5% year 2016 2.0%), so in over the years the rent would become prohibitive and whole transaction will become meaningless. ACHC doesn’t change the original occupancy charges for the occupant. So Mufti Taqi Usmani Saheb told me this is the reason we allowed ACHC not to share the taxes and other expenses with occupant, stating some allowance for OCCUPANT and some allowance for ICHC/ACHC”

so the applicability of allowances is still the same.

3) You have now agreed on the issue of permissibility of Insurance compared to the original impermissibility you had given in 44188 fatwa.

In your concluding remarks, you have stated, that “as well as taking Hazrat Mufti Taqi saheb’s retraction”. Mufti sb i failed to understand how you are misquoting Mufti Taqi sb as retracting his fatwa. He has not retracted his fatwa.

Please review the documents I am sending you, both the reply Mufti Taqi sb gave to my father and again as recent as 26 August 2020 he again confirmed me that he had approved Islamic Cooperative. The only point he emphasized is that he is not in touch with them so he cannot say anything positive or negative at the present. But this does not imply both legally or from shariah point that he has retracted his fatwa. He may not be in touch with them. The major guidelines he had given them are all followed, and I as a buyer had fully clarified the allowances on taxes and insurance back in 2005.

Those major guidelines of Mufti Taqi Saheb are also on his website and the same one he gave in 1989 (see english copy)

With all due respect Mufti sb, the issues I raised towards the end in my original query on the bigger picture in reference to Deoband allowance on Bank interest loans for buying a house and these conflicting fatwas having a significant negative impact on he youth of western world, you have incorrectly labelled these as emotional issues for a genuine issue facing the ummah.

On one side you have taken the option to exercise the authority of giving fatwas on Islamic financial institutions and on the other side not addressing issues raised on the related references in the same context is very shocking and unacceptable both ethically and Islamic ally.

I believe all responses need to have a cohesive and non-partisan approach which has clearly failed when one compares the deobandi scholars from your institutions holding opinions on Ansarco vs. Zero Mortgage vs. Manzil and then Deoband’s allowance on interest based loans for buying homes being overlooked and not commented on. 

Jazakallah for your time and efforts.

Ahmed

Answer:

In the name of Allah, Most Compassionate, Most Merciful,

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

Dear brother in Islam,

We had received your multiple submissions and the documents attached. However, as you had initially submitted your question on the AskImam portal, the system automatically generated the first query submitted.

We will address your query in the following order.

1)Answering your objections

2) Addressing your concerns

Addressing your objections

We wish to state that our fatwa was issued in March prior to receiving your query. Our fatwa was based on the regulations and contracts furnished to us by a client of Ansar financial, and as mentioned in our last fatwa, Mufti Taqi Saheb’s fatwa was already available to us. Hence, if your query is to genuinely understand our initial fatwa, then we believe the last fatwa issued should be sufficient. However, if your purpose is to convince us to change our fatwa, then that is not going to occur until there is change in Ansar financial’s regulations and contracts. Nonetheless, the following is an answer to what you have mentioned.

You state: But here are the extracts I from Mufti Taqi Usmani sb book is clearly permitting that if one partner terminates then Musharakah agreement, the parties can enter in the beginning

Our Response: It is unclear what you refer to. However, it seems you enquire regarding the laws of Shariah concerning ratios of profit and loss. We reiterate, Shariah has allowed partners to mutually agree on a ratio of profit. However, when it comes to loss, the fuqaha are unanimous that loss must be proportionate to ownership. It is impermissible to initially agree on unproportionate ratio even if one is confident there will be no loss. However, the partners may agree that should one partner want to prematurely end the partnership, they will be compelled to purchase the refusing partner’s share at a mutually agreed PRICE. This is the meaning of mutual agreement. Not that they may agree on an unequal ratio. Please consider the following example.

Zaid and Amr enter into a partnership. Zaid contributes $80K to the partnership  and Amr contributes $20K. Two years into the venture, Amr has purchased 20% of the partnership stake. Amr would like to terminate the partnership. However, the value of the assets has declined. Hence, the partners have two options. (a) they sell the jointly owned assets and split the proceeds proportionately or (b) Amr purchases Zaid’s partnership stake. Accordingly, in option (a), if the assets are sold for $50K, with a loss of 50K, Zaid will bear 60% of the loss and Amr will bear 40% of the loss. In option (b) Zaid may choose to sell his partnership stake to Amr for a mutually agreed price, $45K for example. Once the sale between them is complete, Amr becomes 100% owner of the assets and has a debt of $45K owing. Once he sells the asset on the market, he will fully bear the loss. He will pay Zaid $45K as a result of the sale that occurred between them.

Option (b) is the practice worldwide.

Our response regarding shared expenses: It continues to remain our view that, As the diminishing musharakah agreement incorporates the aspect of ijarah, it is important that it complies with the laws of ijarah. According to shariah, all expenses that emerge due to ownership are the responsibility of the landlord.

The Darul Iftaa is a completely separate and independent institution. We are not bound to give a fatwa based on any other institution.

You state: Mufti sb i failed to understand how you are misquoting Mufti Taqi sb as retracting his fatwa. He has not retracted his fatwa.

Dear brother, Mufti Taqi Saheb’s handwritten statement was attached. For further clarity, it was typed out and translated. Hence, it is inappropriate to accuse the Darul Iftaa of “misquoting” Mufti Taqi Saheb.

Dear brother, Mufti Taqi Saheb in clear words stated:

میں نے پروز نسیم صاحب کو لکہ دیا تہا کہ اب میرے اس فتوی کو استعمال نہ فرمائیں

Translation:  I wrote to Parvez Naseem Sahib that they should not use my fatwa anymore.

بہر حال! اب میرا یہ خط انہیں دکہا دیں کہ براہ کرم وہ میرے فتوے کو اب استعمال نہ فرمائین

Translation: Please show them this letter of mine, that please do not use my fatwa anymore.

Accordingly, after acknowledging he had issued a fatwa in 1989, Mufti Taqi Saheb is clarifying that his fatwa should no longer be used as a justification for Shariah compliance. When a mufti declares that his fatwa is no longer applicable, it is not permissible for people to rely on that fatwa anymore. It is within this context that we had mentioned retraction. Yes, those that practiced on that fatwa before the mufti declared that his fatwa should not  be used, are excused. However, our fatwa on Ansar financial is at present where there is no fatwa from Mufti Taqi Saheb to back their contracts and regulations. It is important to note that Mufti Taqi Saheb’s letter was received by us on the 5th of September 2020

Addressing your concerns

Dear brother, your last query was very lengthy. In addition to the fiqhi issues raised, you mentioned many other things, such as pious people who purchased from ICHC, the story of Imam Abu Hanifa, your opinion on how we should issue a fatwa etc. As we are a Darul Iftaa, we did not find it appropriate to address those issues. As for the community’s concern, this was addressed within our answer under point 3.

We did not mention any particular Mufti or institution by name as it is not our place to comment on any institution’s fatwa. Those institutions may be contacted for further clarification.

Conclusion

We understand the challenges and concerns of the residents of Canada in acquiring a Halal way to purchase their homes. However, our duty is to Allah and thus, we are bound to provide answers that conform with Shariah. It is unfortunate that you have wrongly accused the Darul Iftaa of adopting a partisan approach in issuing fatwas. We wish to state that we are not affiliated to any financial institution in Canada, nor do we receive any funding from any institution.

As you have mentioned Zero Mortgage, we wish to mention that the Darul Iftaa spent over two years corresponding to their team. Furthermore, our representatives held several meetings with their management and scholars in person. Thus, we made all attempts to reach mutual understanding.

We once again re-iterate, if your purpose was to genuinely understand our fatwa, the above should suffice. Should you have any further questions regarding the shari’i issues, you may revert to us. However, if the purpose of this correspondence was to try and convince the Darul Iftaa that it has erred, then although it is possiblewe have erred, our fatwa remains as stated unless the required changes are made. It would thus be advisable to raise these concerns with the responsible individuals. The Darul Iftaa is willing to assist and cooperate .

And Allah Ta’āla Knows Best

Hammad Ibn Ismail Jogiat

Student - Darul Iftaa

Cambridge, Ontario, Canada

Checked and Approved by,

Mufti Ebrahim Desai.

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