PREPARED BY:

MOHD SHARAMADAN AQMAL MAT SAATMOHD ASYRAF ABDUL RAHIMMOHD AZHARI NASOHAMOHD ARIF ZULKIFLI

Ownership usually can be seen on property.

According to al-Qamus al-Muhit, property is a thing which can be owned.

Ibn al-Athir (al-Nihayat fi Gharib al-Hadith) said, ‘property in nature is thing that owned in the form of gold and silver’.

Definition of property:

In Arabic word called as ‘al-mal’.

Literally - thing that be owned by someone. This means that any goods that could be owned in the form of good or benefit is consider as al-mal.

Imam Shafie r.a – property as something that had value, and goods that can be sell and purchase. Compensation is a must for any damage on the property.

Imam Hanafi – al-mal is the something that is highly desired by man and could kept for long period of time.

Abdul Karim Zaidan – property is everything that could be owned and being useful to human being.

Based on the above definition, in order toclassified as al-mal, it need to meet certaincriteria as follows :

It must be valuable.

It could be owned and useful(manfaat) such as house, car.

The useful item must be utilized based on

Islamic principle for muslim.

Things that not required to be owned even thought give some useful such as air, sea, sunlight are not consider as mal.

Things that is yet to be owned but potentially could be owned by someone is also consider as al-mal. Eg: fish in the see, bird on sky

It must be use not against any Shariah principle.

evidence from Quran:

(Al-hadid : 7 )

Believe in Allah and His messenger, and spend (in charity) out of the (substance) whereof He has made you heirs. For, those of you who believe and spend (in charity),- for them is a great Reward.

(al-baqara: 188)

And do not eat up your property among yourselves for vanities, nor use it as bait for the judges, with intent that ye may eat up wrongfully and knowingly a little of (other) people's property.

(Al- qasas : 77)

But seek, with the (wealth) which Allah has bestowed on thee, the Home of the Hereafter, nor forget thy portion in this world: but do thou good, as Allah has been good to thee, and seek not (occasions for) mischief in the land: for Allah loves not those who do mischief

Is an asset that has a physical form which can be see, touch and move.

Eg: cash, car and equipments.

Movable (manqul) Immovable (Aqar)

Valuable (Mutaqawwam)

Invaluable (Ghair Mutaqawwam)

Homogeneous (Mithly)

Heterogeneous (Qimi)

Consumable (istihlaky)

Usable (isti’maly)

Is property that can be move from one place to another place.

Hanafi’s - anything that can be move from one place to another, with or without changing its original form or structure. E.g tradable goods, car

Maliki’s - anything that can be moved from place to another without changing its original form.

E.g cloth, computer, car

Property that can’t be move from one place to another place.

Hanafi’s - property that can’t be moved from its original places. E.g land

Maliki’s - anything that can’t be moved or anything that can only be moved when its original form can be changed.

E.g plantation, land and building.

Syuf’ah (co-ownership) is only applicable to immovable property (aqar).

A B-owned by 2 person, A and B-B wants sell to C-B must ask A first-if B not asking, there will several problems occurred.

If the property is movable (manqul), most of jurist said that syuf’ah can’t be applied.

Waqf is only valid using aqar(Hanafi’s) but other jurists ruled that waqf is valid on aqar and manqul.Eg. Land, sajadah

Movable property of will (wasiat) is able to sell by his/ her guardian for anytime if necessary but not in immovable property.

However, there are some reason for the custodian to sell immovable property such as to pay debt .

Refer to any property that is possessed and legal in view of shariah.

Two conditions:1.possessed by legal owner 2.Useful and beneficial for human and

not against Shariah principle.

E.g: car, handphone.

Refer to any property that is not possessed by someone and non permissible property. E.g fish in the ocean, khinzir

The non permissible property is

however is consider as al mal to non muslim (hanafi’s view)

Contract is valid in valuable property (mutaqawwam) but invalid in invaluable property (ghair mutaqawwam).

Compensation is a must in valuable property.

Refer to the property in the market that has same value.

E.g your shirt borrowed by your friend, then he lost your shirt. So, he must buy the new one which exactly same size, brand, colour, eventhough price not same.

If the two of properties have differences, it must be acceptable by parties.

Refer to non substitutes in the market or goods that have substitute but different in value.

E.g antique goods like Taming Sari can’t be replace, so must paid on the Taming Sari’s value because it does not have substitute in the market.

E.g Replace Myvi with Savvy. Both are substitute but differ in value.

Compensation for any damages for both.

in mithly, damages must be compensated with the same value and amount.

in qimi, damages should be compensated with the equivalent value of damages.

Repayment of debt, can be used in homogeneous (mithly), but can’t be used in heterogeneous (qimi) because usually expensive and high.

Refers to anything that can be only be used by changing or destroying its original form

E.g food, drink of water.

Refer to anything that can be used without changing its original form or structure.

E.g Book and pen.

contracts for both property might not be the same in certain circumstances.

Called as intellectual property which can’t be see and touch.

Refer to something that is beneficial to human.

Classified as incomplete property.

Describes as something which a person/corporation can have ownership of and can transfer ownership of to another person/corporation, but has no physical substance.

Eg. Artistic, scientific works, trademark industrial design, song’s lyric, author of book.

According jurist, intellectual property is al-mal.

Hanafi – not al-mal and can’t be inherited.

Selling of it does not imply the transfer of ownership of the property, buyer just get the benefit of the property.

Contract will be terminated when:a) Contract expiredb) Property damagedc) Decease of any parties in the contract.

a) Borrowingb) Ijarahc) Waqfd) Wasiate) Ibahah

Hanafi’s & Maliki refer to giving away the benefit of something to someone without any consideration in return.

Shafiis and Hanbali’s the permission to use the benefit of something without consideration.

It is not a non binding contract E.g; money

A contract of selling the benefit of a property at a specified price and period.

Ownership of the property is not transferrable.

The owner is liable for maintenance of the property.

E.g: Rental house, car.

Refer to a voluntary contribution of a special property by the owner for the benefit of the society.

E.g : Waqaf for education, waqaf for health services.

Refers to the permission to use the benefit of or consume something.

E.g : the permission to stay in someone’s house, to use someone’s car.

Wasiat is a will or a document which states a person’s property that will be distributed after death.

The property is distributed using faraid and the new owner can use the property as he like by following the will itself

There are two types of property : - (a) personal property(b) real property

Personal property, also referred to as movable property, is anything other than land that can be the subject of ownership, including stocks, money, notes, patents, and copyrights, as well as intangible property.

Real property is land and ordinarily anything erected on, growing on, or affixed to it, including buildings and crops.

The terms real estate and real property generally refer to the land.

Property may be further classified as either private or public. Private property is that which belongs to one or more persons. Public property is owned by a country or state.

Personal property can be divided into two major categories:

i. Tangible property includes such items as animals, merchandise, and jewellery.

ii.Intangible property includes such rights as stock, bonds patents, and copyrights.

Classification of personal property : -

1. Possession2. Lost, Mislaid and Abandoned Property3. Confusion and Accession4. Bailment5. Bona Fide Purchasers

Possession is a property interest under which an individual to the exclusion of all others is able to exercise power over something.

There are 2 types of possession :-Actual possession

exists when an individual knowingly has direct physical control over an object at a given time.

Constructive possession is the power and intent of an individual to

control a particular item, even though it is not physically in that person's control.

Lost Personal property is considered to be lost

if the owner has involuntarily parted with it and does not know its location.

Mislaid Mislaid property is that which an owner

intentionally places somewhere with the idea that he will eventually be able to find it again but subsequently forgets where it has been placed.

Abandoned Abandoned property is property to

which the owner has intentionally relinquished all rights.

Lost or mislaid property continues to be owned by the person who lost or mislaid it. When finding lost goods, the finder is entitled to possession against everyone with the exception of the true owner.

Confusionpersonal property of several different owners is

commingled so that it cannot be separated and returned to its rightful owner, but the property retains its original characteristics.

Any fungible (interchangeable) goods, such as grain or produce, can be the subject of confusion.

Accessionpersonal property of one owner is physically

integrated with the property of another so that it becomes a constituent part of it, losing any separate identity.

occurs when the personal property becomes an entirely new chattel, such as when grapes are made into wine or timber is made into furniture.

Bailment is the rightful temporary possession of goods by an individual other than the true owner.

Bailment is made for a designated purpose upon which the parties have agreed.

There are 2 parties involved : - 1. Bailor - the individual who entrusts his

property into the hands of another.2. Bailee - the person who holds the property.

For example, when a person pawns a diamond ring, she is the bailor and the pawnshop operator is the bailee. The pawnshop owner holds the ring for an agreed period as security on the loan to the bailor. The bailor is entitled to recover possession of the ring by paying back the loan within the time period. If the bailor fails to pay back the loan in time, the bailee gains ownership of the ring and may sell it.

Basic common-law principle is that an individual cannot pass better title than she has and a buyer can acquire no better title than that of the seller.

Because a thief does not have a title in stolen goods, a person who purchases from the thief does not acquire title.

A bona fide purchaser is an individual who has bought property for value with no notice of any defects in the seller's title.

In real property an estate is the degree, nature, and extent of an individual's ownership in real estate.

There are several types of estates govern interests in real property : -

1. Freehold Estates2. Non-freehold Estates3. Concurrent Estates4. Specialty Estates

Is an estate in real property that is of uncertain duration. An individual who is in possession of a freehold estate has seisin, which means the right to immediate possession of the land.

Two basic types : - Fee simple absolute (inheritable)

the most extensive interest in real property that an individual can possess because it is limited completely to the individual and his heirs, assigns forever, and is not subject to any limitations or conditions.

The life estate (not inheritable) is an interest in property that does not amount

to ownership because it is limited by a term of life.

Is the property interests of limited duration include tenancy for years, a tenancy at will, and a tenancy at sufferance.

This type of estate arises in a landlord and tenant relationship, a landlord leases land or premises to a tenant for a specific period, subject to various conditions, ordinarily in exchange for the payment of rent.

Non-freehold estates are not inheritable under the common law but are frequently assignable.

exists when property is owned or possessed by two or more individuals simultaneously.

three basic types : - 1. Joint tenancy

Is a concurrent relationship whereby property is acquired by two or more persons at the same time and by the same instrument.

2. Tenancy by the entirety Is a form of joint tenancy arising between a husband

and wife, whereby each spouse owns the undivided whole of the property, with the right of survivorship.

3. Tenancy in common. Is a form of concurrent ownership in which two or

more individuals possess property simultaneously. The individuals do not own an undivided interest in the property, but rather each individual has a definable share of the property.

Specialty estates are property interests in condominiums and cooperatives.

Condominium ownershipallows separate ownership of individual

apartments or units in a multiunit building. The purchaser becomes the owner of a particular unit and of a proportionate share in the common elements and facilities.

In cooperative ownership the title to a multiunit building usually is vested

in a corporation. The purchaser of an apartment in the building buys stock in the corporation, receiving a stock certificate and a lease to the apartment.

QUESTION 3Differentiate the following terms as

regards to property in Islam. Support your answers with relevant examples.

a) Mal al-aqar and mal al-manqul. (6m)b) Mal al-mutawaqqam and mal ghair al-

mutawaqqam (6 m)c) Mal al-lstihlakiy and mal al-istrmaliy. (6

m)d) Mal al-mithliy and mal al- qimiy.(7 m)

QUESTION 3a)Explain Mai al-isti'maliy and Mai al-

istihlakiy.(5 m)

b)Elaborate four (4) basic characteristics of property (al-mal).(8 m)

QUESTION 1Islam regards possession of property as a natural instinct in man.

a) Define the legal meaning of al Mai in Islam.(5 m)

b) Explain the concept of property in Islamic perspective.(8 m)

c) State four (4) categories of tangible properties in Islam together with examples.(12 m)