Islamic Fiqh > Financial transactions > The loan (qard) and hawala > The first pillar: the lender
Contents
Updated on 26 September 2026 at 7:12 PM
This part belongs to the full section: All sections of this part.
This chapter of the fiqh encyclopedia deals with the qard, the interest-free loan in which the borrower undertakes to return the equivalent of what he received. The 13 sheets gathered here cover the pillars of the contract (the lender, the formula, the thing borrowed), the loan of benefits and of slaves, what must be returned, the fate of money that loses or gains value, when the borrower becomes owner, the lender's right of withdrawal, increases at repayment, the saftaja (credit letter securing the road) and the sale combined with a salaf (a loan with deferred repayment). The positions of the four schools are given with their classical references in parentheses.
The Hanafis, Shafi'is and Hanbalis stated that the lender must have the legal capacity to make a donation in what he lends, because the qard involves an element of donation; it is therefore valid only from one whose disposal is permitted, as in sale. The loan of a child, an insane person and their likes is therefore not valid, and the lender must also act freely: the loan of a coerced man is not valid, like his other contracts.
Al-Kasani (may Allah have mercy on him) said: what falls upon the lender is his capacity for donation; the father, the executor, the child, the permitted slave and the mukatab do not possess it, because the loan is a donation of wealth; do you not see that no counter-value answers it at the moment? It is therefore an immediate donation, permitted only from one whose donation is permitted; and all these are not among those capable of giving, so they do not possess the power to lend (Bada'i' al-Sana'i', 7/394).
The Shafi'is said: the loan of an orphan's money by his guardian, or of a waqf's property by its supervisor, is not valid except out of necessity. This is permitted to the judge without restriction, even without necessity, given the multiplicity of his duties, on condition that it is easy for the one borrowed from, that he is trustworthy, that his property is free of suspicion, with witnessing; likewise taking a pledge if the judge deems fit. It is also permitted for him to lend the bankrupt's money with those same conditions, if the creditors agree to postpone the division (al-Bayan fi madhhab al-Imam al-Shafi'i, 5/456-457; Mughni al-Muhtaj, 3/30-31; al-Dibaj, 2/167-168).
The Hanbalis said: as for lending the orphan's money, if there is no benefit in it for the orphan, lending it is not permitted; once the guardian can trade with it or acquire real estate yielding a benefit, he does not lend it, for that would deprive the orphan of the benefit; if that is not the case and the loan brings a benefit to the orphan, it is permitted. Ahmad said: one does not lend the orphan's money to someone seeking his gratitude and friendship; one lends with foresight and care, as Umar (may Allah be pleased with him) did. It was said to Ahmad: Umar borrowed an orphan's money; he replied: he borrowed only out of consideration for the orphan, and as a precaution, in case something befell him for which he would be liable.
Al-Qadi (may Allah have mercy on him) said: the meaning of benefit is that the orphan owns wealth in a town and it is to be transported to another; it is then lent to a man of that town so that he settles it there in his place, aiming to protect it from the gharar of transport, or if destruction by theft or drowning is feared and the like, or if it is of what deteriorates with time, or if its fresh state is better than the old, like wheat, which is then lent for fear of vermin and loss of value. Here the loan is permitted, for it is a benefit for the orphan, like trading with it, even without benefit; but if the aim is only to favor the borrower and meet his need, it is not permitted, for it would be a donation with the orphan's money, like a gift; and if the guardian wants to travel, he cannot travel at the orphan's expense.
Lending to a trustworthy person is better than a deposit, because a deposit is not guaranteed if lost; if he finds no one who borrows on these terms, depositing is permitted for him, for it is a need; and even if he deposits while lending is possible, it is permitted without liability upon him, for he may consider the deposit better for the orphan than the loan: he is therefore not negligent. In all these cases, lending is permitted only to a solvent and trustworthy man, to guard against his denial and inability to repay; a pledge should be taken if possible. If the pledge is impossible, lending without pledge is permitted according to the apparent wording of Ahmad in the case of one who borrows for the orphan's benefit, for he would not give a pledge, and requiring the pledge would forfeit that benefit; Abu al-Khattab said: he lends taking a pledge. If he can take the pledge, it is best to take it as a precaution: if he neglects it, he may be held liable if the property is lost through his negligence, and he may also not be liable, the default being safety; this is the apparent wording of Ahmad, since he did not mention the pledge (al-Mughni, 4/167, 207; Kashshaf al-Qina', 3/36, 366; Sharh Muntaha al-Iradat, 3/323; al-Rawd al-Murbi', 2/5).
The majority of jurists, namely the Hanafis in the sahih (according to the view of Muhammad and Abu Yusuf in one of the two narrations attributed to him), the Shafi'is in the most correct version and the Hanbalis, which is also the implication of the Malikis' statements, required in the qard the formula (sigha), that is, offer and acceptance, such as: 'I lend you this thing', 'I grant you a salaf', 'Take it for its equivalent', 'Take this thing as a loan', 'I transfer its ownership to you on condition that you return its equivalent'. Acceptance of the loan is required, as in other exchange contracts: the borrower says 'I borrowed', 'I accepted', 'I consent', or any wording of that meaning.
The Shafi'is and Hanbalis said: the condition of acceptance is agreement in meaning, as in sale; if he says 'I lend you a thousand' and he accepts five hundred, or the reverse, it is not valid. As for the legal-obligation loan (hukmi), no formula is required: feeding a hungry person, clothing a naked one, providing for a foundling, as the Shafi'is stated (Mughni al-Muhtaj, 3/31; al-Dibaj, 2/167-168, and the previous sources).
Another narration is reported from Abu Yusuf, opposite to the most correct version among the Shafi'is: the pillar of the contract is the offer; acceptance is not a pillar, to the point that if he swears never to lend to so-and-so then lends to him without the latter accepting, he has not broken his oath according to Muhammad; this is one of Abu Yusuf's two narrations, the other making him break his oath. The basis of this narration is that lending is a kind of loan for use (ariyya), and acceptance is not a pillar in the ariyya. The basis of Muhammad's view is that what falls upon the lender is the equivalent; he therefore restricted validity to what has an equivalent, likening the loan to sale and making acceptance a pillar as in sale.
It is reported from Abu Yusuf, concerning one who swears not to borrow from so-and-so then borrows without the latter lending him, that he breaks his oath: the condition of breaking is the borrowing, that is, the request for the loan, like taking possession in sale, which is the request for purchase; once he borrows, he has requested the loan and fulfilled the condition of breaking (Bada'i' al-Sana'i', 7/394; Rawdat al-Talibin, 3/253; al-Bayan, 5/456-457; Mughni al-Muhtaj, 3/30-31; al-Mughni, 4/207; Kashshaf al-Qina', 3/36, 366; Sharh Muntaha al-Iradat, 3/323; al-Rawd al-Murbi', 2/5).
The basis of the Shafi'is' view in the version opposite to the most correct is that acceptance is not a pillar, for the loan is a favor and a permission to consume under condition of liability; it is evident that the lender's solicitation, like 'Borrow from me', stands in place of the offer, and the borrower's, like 'Lend me', stands in place of acceptance, as in sale (Mughni al-Muhtaj, 3/31).
The Shafi'is and Hanbalis stated that the loan is valid with the word 'salaf' or 'qard', both established by the Law, or with any expression conveying their meaning, such as saying: I transfer the ownership of this to you on condition that you return its equivalent; or if there is an indication of the intention to loan. If he says 'I make you a gift of it' without mentioning the counter-value or any indication, it is a gift; in case of dispute, the donee's word is retained, for the default is with him: transfer without compensation is a gift (al-Muhadhdhab, 1/302; al-Mughni, 4/208; al-Kafi, 2/121; Kashshaf al-Qina', 3/364).
The jurists differed over the things whose loan is valid or invalid. The Hanafis said: the thing borrowed must be fungible (mithli), defined as that whose units do not differ so as to change the value: measured, weighed and counted items of close value, like eggs and walnuts, whose units vary little. What is not fungible, like an animal, firewood, real estate and what is valued, as well as counted items of differing values, like melons and pomegranates, cannot validly be lent: one can require neither the return of the object itself nor of its value, which would lead to dispute, value varying with each appraiser's assessment. The obligation must therefore be the return of the equivalent, which restricts the loan's validity to what has an equivalent.
If he borrows one of these things, the contract is invalid, but he acquires ownership by taking possession: if he borrows a house or a camel and then takes possession, he becomes its owner, but he may not derive any benefit from it. If he sells it, his sale is valid in view of ownership, but he commits a sin, for the invalid contract must be rescinded and the sale prevents rescission: he has thus done what contradicts the obligation and sins by it.
The loan of bread, by weight or by number, is not permitted according to Abu Hanifa and Abu Yusuf (may Allah have mercy on them), because of the considerable difference between one bread and another, due to variations in kneading, baking, lightness and heaviness in weight, smallness and largeness in number; this is why the salam is not permitted in it by consensus either, and the loan a fortiori: the salam is broader in permissibility than the loan, and the loan narrower. Do you not see that the salam on garments is permitted while the loan is not? The salam not being permitted in it, the loan not being permitted is all the more fitting. Muhammad (may Allah have mercy on him) said: the loan of bread is permitted by number through istihsan (juristic preference), because of people's usage and habits (Bada'i' al-Sana'i', 7/395).
The Malikis said: everything on which the salam is valid, animal, commodity or fungible, may be lent, except a slave woman who becomes lawful to the borrower, because of its resemblance to fornication, as will come in detail. What is not valid in salam, such as a house, land, shop, inn, bath, mine soil, metal to be worked, a rare precious stone and bulk goods (juzaf), may not be lent (Tahrir al-Mukhtasar, 4/70; Sharh Mukhtasar Khalil, 5/229; al-Sharh al-Kabir, 4/360; Mawahib al-Jalil, 6/406; al-Mukhtasar al-fiqhi, 9/384-385; al-Taj wa-l-Iklil, 3/607; al-Bahja fi Sharh al-Tuhfa, 2/472; al-Sharh al-Saghir, 7/180).
The Shafi'is said: everything on which the salam is permitted may be lent, for its establishment in liability (dhimma) is valid; the Prophet (peace and blessings of Allah be upon him) borrowed a young camel (bakr) and its like was measured out to him. What is not permitted in salam, like the slave woman, her child and precious stones, may not be lent.
The loan of bread is valid in the most correct version, by consensus of the people of the great cities who practiced it without disapproval. The like is returned in the fungible, and in the valued an equivalent in form, for the Prophet (peace and blessings of Allah be upon him) borrowed a young camel and returned a four-year-old one, saying: 'The best of you are those who are best in settling (debts)'; and because the obligation of its value would require knowledge of it.
'The best of you are those who are best in settling (debts).'Reported by Muslim
(Rawdat al-Talibin, 3/253, 255; al-Bayan fi madhhab al-Imam al-Shafi'i, 5/460-461; Mughni al-Muhtaj, 3/30-31; Nihayat al-Muhtaj, 4/258-259; al-Dibaj, 2/168-169)
The Hanbalis said: the loan is valid in every object whose sale is permitted, measured, weighed, sown (volume measure), counted or other, except slaves only, as will come (al-Furu', 4/151; al-Insaf, 5/125; Kashshaf al-Qina', 3/366-367; Sharh Muntaha al-Iradat, 3/324; al-Rawd al-Murbi', 2/5).
As for the ruling on the loan of benefits, such as one person reaping with another for a day and the other reaping with him a day in return, or lodging him in his house so that he lodges him in his house in return: the majority of jurists, namely the Shafi'is and Hanbalis in the school (and this is the implication of the Hanafis), held that the loan of benefits is not valid, for it is not known in usage and custom, as the Hanbalis say, and because the salam is not permitted in it, as the Shafi'is say.
The Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) held the validity of the loan of benefits and said: the loan of benefits, like the ariyya, is permitted on condition of compensation; but it is more likely that benefits are not among things that have an equivalent, so that value is due in the other view; and in the valued, returning the like is permitted by mutual consent of both parties (Rawdat al-Talibin, 3/255; Mughni al-Muhtaj, 3/33; Asna al-Matalib, 2/142; al-Fatawa al-Kubra, 4/476; al-Furu', 4/151; al-Insaf, 5/125; Kashshaf al-Qina', 3/366-367; Sharh Muntaha al-Iradat, 3/324; al-Rawd al-Murbi', 2/5; al-'Inaya, 12/249; Hashiyat Ibn Abidin, 5/161).
The majority of jurists, namely the Hanafis, the Malikis in the famous position, the Shafi'is in the most correct version and the Hanbalis, held that lending a slave woman to one to whom her intercourse is lawful is forbidden, for it leads to borrowing a slave woman, possessing her for a day and then returning her, and whenever one needs her, borrowing her and returning her, as one borrows an object, benefits from it and returns it. Private parts are indeed prohibited and become lawful only through marriage or ownership; and the loan is not a binding contract upon the borrower, since he returns her whenever he wishes, so the slave woman resembles the purchased slave with an option of cancellation, and intercourse with her is not permitted, by consensus, until the days of the option have lapsed. Were the borrowing of slave women permitted, intercourse would occur without marriage or valid ownership.
The Malikis said: it is the same whether for intercourse or for service, as blocking the means (sadd al-dhari'a), and whether the return of the slave woman herself or of her like was stipulated. Ibn Abd al-Hakam (may Allah have mercy on him) said: it is permitted if he stipulated the return of her value. If the slave woman is not lawful to the borrower, forbidden through lineage, suckling or marriage relation, her borrowing is permitted according to the Malikis and Shafi'is.
Al-Lakhmi, of the Malikis, said: the loan of the slave woman is permitted if she is below the age of intercourse, or if the borrower cannot enjoy her because of his young age, when her guardian lends her to him. Some Malikis forbade lending her even if she is not desired, and this is the Shafi'is' view. As for the Hanbalis, the school among them is the absolute prevention of lending slaves, male or female, for nothing of it is transmitted and it is not among the works of beneficence (Sharh Ma'ani al-Athar, 4/62; al-Tamhid, 4/66-67; al-Istidhkar, 6/520; Tahrir al-Mukhtasar, 4/70; Sharh Mukhtasar Khalil, 5/229; al-Sharh al-Kabir, 4/360; Mawahib al-Jalil, 6/406; al-Mukhtasar al-fiqhi, 9/384-385; al-Taj wa-l-Iklil, 3/607; al-Bahja fi Sharh al-Tuhfa, 2/472; al-Sharh al-Saghir, 7/180; al-Lubab fi l-jam' bayn al-sunna wa-l-kitab, 2/509; Sharh al-Zarqani on the Muwatta, 3/425; al-Hawi al-Kabir, 5/354; Rawdat al-Talibin, 3/254; Mughni al-Muhtaj, 3/32; al-Bayan, 5/461; al-Dibaj, 2/169; al-Mughni, 4/209; Kashshaf al-Qina', 3/366; Sharh Muntaha al-Iradat, 3/324; al-Rawd al-Murbi', 2/5).
For the validity of the loan, the majority of jurists require knowledge of its amount and description, so that the return of its equivalent can take place. The Shafi'is said in the school: borrowing a measured thing against a weight and vice versa is permitted if there is no overflow in the measure, as in the salam (Rawdat al-Talibin, 3/255; Asna al-Matalib, 2/142; Kashshaf al-Qina', 3/365-366; Sharh Muntaha al-Iradat, 3/323; al-Rawd al-Murbi', 2/5).
Abu Hanifa and the Shafi'is in the school said: if he borrows copper coinage (fulus) and it is demonetized (withdrawn from circulation), he owes its like, and only the coins lent are owed; for returning the like was obligatory, and demonetization is only a description of money-ness, a description that does not affect the validity of the loan. Do you not see that one can borrow these coins after their demonetization, even though they thereby leave their status as money? The continuation of the loan is therefore a fortiori permitted, continuation being easier. The same answer applies to dirhams dominated by adulteration, for they have the status of fulus.
As for the other question: if he borrows money and its value falls, does he return the like or the value? The majority of jurists, namely Abu Hanifa, Abu Yusuf in his first view, the Malikis, the Shafi'is and the Hanbalis in the school, held that if he borrows money and its value falls, for instance because the price drops, so that a coin worth ten daneg becomes worth twenty, he owes its like, not its value, whether the fall is small or great, as long as it circulates; for nothing has happened to it, only the price has changed, and it then resembles wheat whose price falls or rises (Bada'i' al-Sana'i', 7/395; Sharh Fath al-Qadir, 7/157; Tabyin al-Haqa'iq, 4/143; al-Bahr al-Ra'iq, 6/220; Sharh Mukhtasar Khalil, 5/55; al-Sharh al-Kabir, 4/360; Mawahib al-Jalil, 6/163; al-Bahja fi Sharh al-Tuhfa, 2/20; al-Sharh al-Saghir, 6/289; Rawdat al-Talibin, 3/258; al-Bayan, 5/461; Hawashi al-Shirwani, 5/44; al-Mughni, 4/214; Kashshaf al-Qina', 3/367; Sharh Muntaha al-Iradat, 3/325; al-Insaf, 5/126-127; al-Rawd al-Murbi', 2/6).
It is stated in al-Mudawwana al-Kubra: suppose I come to a man and say: lend me a dirham of copper coinage, and he does so while a dirham is then worth a hundred fils; then the coinage depreciates until a dirham is worth two hundred fils. He answered: only the like of what was taken is returned, with no regard to the increase. And Malik said: the condition is void, and he owes only the like of what he took (al-Mudawwana al-Kubra, 14/321).
Imam al-Suyuti (may Allah have mercy on him) said: it is established that in a valid loan the like is returned absolutely: if he borrows a ratl of coinage, he must return a ratl of that kind, whether its value rises or falls; for the rise, because the loan resembles the salam; for the fall, it is stated in al-Rawda, among his additions: if he lends cash and the sultan bans its circulation, only the coins lent are owed to him, in explicit text from al-Shafi'i; if that holds despite the ban, the fall in value holds a fortiori (al-Hawi li-l-fatawa, 1/95).
Imam Ibn Qudama (may Allah have mercy on him) said: the borrower returns the like of fungibles, whether their price falls, rises or stays the same. If the thing lent exists in its own person and he returns it without a new defect, its acceptance is obligatory, whether its price has changed or not; if a defect occurs in it, he is not bound to accept it. If the loan was fulus or broken dirhams that the sultan bans and whose circulation is abandoned, the lender takes their value and is not bound to accept them, whether he still holds them or has spent them, for they became defective in his ownership; Ahmad stated this in explicit text for broken dirhams and said: they are appraised at what they equaled the day they were taken, then that is given, whether their value fell little or much.
Al-Qadi said: this is when the people agree to abandon them; if they continue to trade in them despite the sultan's ban, accepting them is obligatory. Malik, al-Layth ibn Sa'd and al-Shafi'i said: only the like of what he lent is owed, for no defect has occurred in them: they follow the course of a price drop. Our (Hanbali) argument: the sultan's ban prevents spending them and voids their monetary character, likening them to broken or damaged coins; the fall in price does not prevent returning them, whether great, as when a coin worth ten daneg becomes worth twenty, or small; for nothing has happened to them, only the price has changed, like wheat.
Abu Yusuf, of the Hanafis, and the fatwa among them follows his view, held that if the fulus rises or falls, the borrower owes their value in dirhams of the day of sale or seizure.
Imam Ibn Abidin (may Allah have mercy on him) has an important statement in his treatise 'Badhl al-majhud fi mas'alat taghayyur al-nuqud' (The bestowal of effort on the question of the changing of currencies): when money is demonetized, withdrawn from circulation, rises or falls. If one buys with adulterated dirhams or fulus and does not hand them to the seller, and the money is demonetized or withdrawn from circulation, the sale is void, the withdrawal amounting to demonetization; the buyer must return the merchandise if it exists, or its like or value if it perished; if it was not seized, the sale has no effect at all. This does not void the sale in their view, for delivery becomes impossible after demonetization, and that does not corrupt the contract since circulation may resume; but according to Abu Yusuf the value is due on the day of sale, and according to Muhammad on the day of demonetization, that is, the last day the people used it. In al-Dhakhira the fatwa follows Abu Yusuf's view; in al-Muhit, al-Tatimma and al-Haqa'iq, ruling is upon Muhammad's view, out of leniency toward the people.
Demonetization (kasad) is withdrawal from circulation in all lands; if only in some, it does not void, but the coin is disparaged if not returned in their land: the seller then chooses to take it or take its value. Withdrawal (inqita') is not finding it in the market even if it is with the money changers, according to al-Hidaya; withdrawal equals demonetization according to many books, but in al-Mudammarat: its value in gold and silver is due from the last day of circulation, and this is the preferred view. If its value rises or it is abolished, the sale stands as it is: the buyer is not given a choice, and the money of the same alloy as at the time of sale is claimed from him; thus in Fath al-Qadir and al-Bazzaziyya from al-Muntaqa: if the fulus rises or falls, according to the first and second Imams nothing but them is owed to him; the second said: he owes their value in dirhams of the day of sale and of seizure, and that is the fatwa; thus in al-Dhakhira and al-Khulasa from al-Muntaqa, transmitted and confirmed in al-Bahr. Since the fatwa is affirmed there in many reliable sources, one must rely on it in ifta and qada; I have seen no one rule upon the first Imam's (Abu Hanifa's) view.
In al-Dhakhira from al-Muntaqa: if the fulus rises before seizure or falls, Abu Yusuf first said: my view and Abu Hanifa's are equal, nothing but them is owed to him; then Abu Yusuf retracted and said: he owes their value in dirhams on the day the sale occurred and on the day the seizure occurred. The day of sale applies to the case of sale, the day of seizure to the case of loan, as the author of al-Nahr noted in the chapter of exchange. In sum, according to Abu Yusuf's ruling view, there is no difference between demonetization, withdrawal, fall and rise: the value is due from the day of sale or loan, not the like.
In al-Bazzaziyya, the fifteenth type, from the benefits of the great Abu Hafs: he borrows one daneg of fulus while they were worth ten daneg, then they become six daneg or fall to twenty: he takes from him the number given, no more and no less. This rests on the first Imam's view, which is Abu Yusuf's first view; and it is known that the ruling view is the second: their value in dirhams on the day of the loan, which was then one daneg, that is, a sixth of a dirham, whether it is now six fils or twenty. Likewise what the author reports in the chapter of the loan: if he borrows circulating fulus and 'adali and they are demonetized, he owes their like demonetized, not their value: this is the first Imam's view.
In the chapter of exchange will come, in text and commentary, the case of one who buys something with fulus dominated by adulteration or unusable fulus, and it is demonetized before delivery to the seller: the sale is void as if it were withdrawn from circulation, and likewise the dirhams; it is corrected with the value of the merchandise, and ruling is thus out of leniency toward the people. The exact correction is: with the value of the demonetized price. Abu al-Hasan said: the narration from Abu Hanifa on the loan of demonetized fulus has not varied: he owes its like. Bishr said: Abu Yusuf said: he owes their value in gold on the day the loan occurred, for the dirhams whose kinds I mentioned to you, namely the bukhariyya, the tabariyya and the yazidiyya. Muhammad said: the value on the last day of circulation. Al-Quduri said: if what we said is established from Abu Hanifa's view on the loan of fulus, the bukhariyya dirhams are fulus in a specific manner, and the tabariyya and yazidiyya, dominated by adulteration, have the status of fulus: Abu Yusuf therefore analogized them to fulus.
What is said of the loan applies to the sale as well, as he transmitted from al-Dhakhira: on the day the sale occurred. Know then that what is understood from their statements is that the stated disagreement concerns only the fulus and the dirhams dominated by adulteration; some formulations mention only the fulus, others add the 'adali, that is, according to al-Bahr from al-Bina', dirhams containing adulteration; others restrict it to dirhams dominated by adulteration. Their justification of the first Imam's view by the voiding of the sale is that monetary character is voided by demonetization: the adulterated dirhams were made money only by convention; when the people cease trading in them, the convention is void, they are no longer money, and the sale remains without a price, hence void. I have seen no one state explicitly the ruling on pure or unadulterated dirhams, except what the commentator here indicates.
It is fitting to say that there is no disagreement that the sale is not voided by their demonetization, and that the buyer owes their like in case of demonetization, withdrawal, fall or rise; no voiding, because it is money by nature, so that the cessation of circulation does not void its monetary character; the justification of voiding therefore does not hold. The obligation of the like, that is, of what the contract was concluded upon, like one hundred specified mithqal of gold or one hundred Frankish riyal, rests on the persistence of monetary character and the non-voiding of their valuation; the full explanation is in the treatise 'Tanbih al-ruqud fi ahkam al-nuqud' (Warning the slumberers on the rulings of currencies) (Hashiyat Ibn Abidin, 4/533, 535; see Tanqih al-Fatawa al-Hamidiyya, 373, 378; al-Muhit al-Burhani, 2/276; al-Bahr al-Ra'iq, 6/219; al-Fatawa al-Hindiyya, 3/106).
The Shaykh of Islam Ibn Taymiyya said in Sharh al-Muharrar: if he lends or wrongfully seizes food and its value falls, this is a defect of the species; species are affected by defect only through loss of value; he is therefore not compelled to take a diminished thing, and one returns to the value: this is equity, for two items of wealth resemble each other only if their values are equal; with differing values there is no resemblance. The defect of the debt is the bankruptcy of the debtor, and the defect of the specified object is its departure from the norm (transmitted from al-Iman wa-l-radd 'ala ahl al-bida', 2/13).
The jurists differed over the loan: does it become owned by mere seizure, even without consumption, or only by consuming it? The Hanafis according to the apparent narration (zahir al-riwaya), the Malikis, the Shafi'is in the school and the Hanbalis held that the loan is owned by seizure, even without consumption, for it is a contract whose effect depends on seizure, like the gift; and if it were not owned by seizure, disposing of it would be forbidden to him. The Hanafis of the apparent narration explain it thus: by seizure alone, the borrower becomes capable of disposing of the loan without the lender's permission, by sale, gift, charity and every other act, and if he disposes, his act takes effect without depending on the lender's ratification: therein are the signs of ownership; and the etymology leads to it too: qard, in the language, means cutting, which indicates that the lender's ownership is cut off by the mere handing over.
Abu Yusuf and the Shafi'is in a view said: it is not owned by seizure, but by consuming after seizure; for it is a contract of benefaction: after seizure the lender retains the right to take it back, and the borrower the duty to return it: proof that ownership was not established for him. The basis of Abu Yusuf's view is that lending is a loan for use, proof: no term is required in it, whereas if it were an exchange contract it would be required, as in all exchange contracts; likewise, the father, the executor, the permitted slave and the mukatab cannot lend, whereas these people do not own exchange contracts. Likewise, the loan of dirhams and dinars is not voided by separation before taking both counter-values, whereas mutual exchange would be voided, for it is a currency exchange (sarf); and the loan of a measured thing is not voided by separation, whereas the exchange would be, for the sale of a measured thing against a similar measured thing in liability is not permitted: by these proofs it is established that lending is a loan for use, and the object therefore remains subject to the rule of the lender's ownership (Bada'i' al-Sana'i', 7/395; Sharh Fath al-Qadir, 7/157; Tabyin al-Haqa'iq, 4/143; al-Bahr al-Ra'iq, 6/220; Majma' al-Bahrayn, 3/118; Hashiyat Ibn Abidin, 5/164; Sharh Mukhtasar Khalil, 5/55; al-Sharh al-Kabir, 4/360; Mawahib al-Jalil, 6/163; al-Bahja fi Sharh al-Tuhfa, 2/20; al-Sharh al-Saghir, 6/289; Rawdat al-Talibin, 3/258; al-Bayan, 5/461; Hawashi al-Shirwani, 5/44; al-Mughni, 4/214; Kashshaf al-Qina', 3/367; Sharh Muntaha al-Iradat, 3/325; al-Insaf, 5/126-127; al-Rawd al-Murbi', 2/6; al-Iman wa-l-radd 'ala ahl al-bida', 2/13).
The jurists differed over whether the lender may take back the loan he granted. The Malikis say: he is not bound to return it. The Shafi'is in the most correct version, the Hanbalis and Abu Hanifa (as Ibn Qudama transmits from him) say: he is bound to return it to its owner, according to the detail that follows.
The Malikis said: the borrower becomes owner of the loan by the mere contract, even without seizure: it becomes part of his wealth and serves to pay his debts; once seized, he is not bound to return it to its owner before the stipulated term; without stipulation, one returns to usage: he returns it only if people of its kind ordinarily benefit from it, according to the stronger view of the school; once the stipulated term or the customary period has passed, he must return it. According to another view: if he lends without restriction of time, repayment is by presence, and the owner takes it when he asks. If he wants it before its term, its owner must accept it, even against another object; for the term in the loan belongs to the one who owes it (Tahrir al-Mukhtasar, 4/74; Sharh Mukhtasar Khalil, 5/232; al-Sharh al-Kabir, 4/366; al-Taj wa-l-Iklil, 3/613).
The Shafi'is said in the most correct version: the lender may take back the object itself as long as it remains in the borrower's ownership in its state, for he has the right to claim its replacement when it is lost; demanding the object itself is closer, and the borrower is bound to return it. In the opposite version: he cannot take it back, out of protection of the borrower's ownership; the borrower discharges his due from another source, like other debts. The disagreement bears on the view that the loan is owned by seizure; on the view of ownership by consumption, taking it back is certain (al-Bayan, 5/458-459; Mughni al-Muhtaj, 3/35-36; Nihayat al-Muhtaj, 4/266; al-Najm al-Wahaj, 4/288-289).
If he finds it pledged, in process of manumission contract (mukatab) or having yielded a gain whose compensation is attached to its person, he cannot take it back. If the borrower returns it in its own person, the lender must accept it definitively; if it is diminished, he accepts it with compensation or takes an intact equivalent. If it has increased, he takes back the attached increase, not the detached one. If the borrower's ownership lapsed then returned, two views: taking it back or not. If the borrower rented it out, the lender may take it back and the lease is not void; if he wishes he waits until the term without wage, the wage being like the attached increase; if he wishes, he takes compensation for the loss of his benefit.
The Hanbalis said: the loan is a binding contract upon the lender and permissive for the borrower: if the lender wants to take back his property, he cannot, for he has alienated his ownership for compensation without an option, like the sale. As for the borrower, he may return to the lender what he borrowed if it is in its state, without diminution or defect, for it is in the state of his right and the lender must accept it, like what is delivered in the salam, or if another thing is given. The lender may claim its replacement immediately, for the loan is a cause making obligatory the return of the like in fungibles, immediate like destruction. If he lent in installments then demands them all at once, that is owed to him, for all is immediate, as if he had sold by immediate sales then demanded their price all at once. If he deferred the loan, it does not become deferred but remains immediate; every debt whose term has arrived does not become deferred by his deferring it, for the right is established immediately, and the deferral is his donation and promise, not an obligation, as if he lent an object for use.
Ibn Qudama (may Allah have mercy on him) said, on the latter point: the lender may claim its replacement immediately; the loan in installments demanded all at once is owed all at once; the deferred loan remains immediate. On this ruled al-Harith al-'Ukli, al-Awza'i, Ibn al-Mundhir and al-Shafi'i. Malik and al-Layth said: all becomes deferred by the deferral, because of the saying of the Prophet (peace and blessings of Allah be upon him): 'The believers are bound by their conditions'; for the two contracting parties may dispose of the contract by rescission and confirmation, and they could therefore increase within the contract, like the option of the session.
Abu Hanifa said concerning the loan: the replacement of the destroyed thing is like the price of the sale, the wage, the dowry and the khul' compensation according to their word; for the term requires a part of the compensation, and the loan admits neither increase nor decrease in its compensation, the replacement of the destroyed being the like without more or less: it is therefore not deferred; the other compensations admit increase, hence deferral. Our argument: the right is established immediately, the deferral is donation and promise, not an obligation to fulfill, as if he lent an object; this does not take the name of condition; and even if so named, the hadith is specific to the ariyya, to which what they differ on is annexed, for it resembles it. And against Abu Hanifa: it is an increase after the contract is established, hence like the loan; as for rescission, it is a rupture and the initiation of another contract, unlike our question; and the option of the session counts as initiation of the contract, since seizure suffices for what requires seizure and inspection for what is in liability (al-Mughni, 4/208-209; see al-Kafi, 2/122; Kashshaf al-Qina', 3/364-365; Sharh Muntaha al-Iradat, 3/324; al-Insaf, 5/130; al-Rawd al-Murbi', 2/6).