دار التوحيد Dâr'ul Tawhîd

Author Topic: VALIDITY OF TAHRIF IN CONTRACTS & AGREEMENTS CONTAINING KUFR  (Read 1385 times)

Fahm'us Salaf

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بسم الله الرحمن الرحيم
الحمد لله المعين والصلاة والسلام على النبي الأمين وعلى آله وأصحابه


Validity of Tahrif in Contracts & Agreements Containing Kufr

As it is commonly known within the system of Kufr in our era; during our daily lives one may come across contracts & agreements that contain the condition “so and so courts of the Taghout has the authority to solve it or such law is effective/in force when/if Ikhtilaaf (disagreement) occurs between both parties.” Such texts can be seen in the contracts and agreements of hydro, heat etc., and also in computer programs, user agreements or terms of use for websites, email services, debit cards, prepaid cards and also while shopping or many other daily matters that one may not even think about. Signing such contracts & agreements is an act of Kufr that would be unknown to those who do not have any clue about the meaning and necessities of Tawhid.

We had mentioned earlier about the matter of accepting/authorizing the courts of the Taghout by the way of uttering it or by the way of signing any contracts & agreements that contains such statement in it being Kufr and you may refer back to it Ruling of Signing Contracts & Agreements Which Contain Kufr. Our intention here is to take in hand the issue of, whether or not Tahrif (distortion) on contracts & agreements are valid from the Islamic perspective.

Expressions of Kufr and Haraam appear in some Aqd (contracts & agreements). Aqd is an agreement/contract that consists of both Ijab (offer) and Qabul (acceptance). Once one signs the agreement/contract all of the conditions of the agreement/contract are binding upon the individual and valid until it is annulled. There is no Dalil (proof) in Shari’ah nor is there any narration from the Salaf that mere Tahrif is a way of annulling an agreement/contract which was signed and validated.

Today the conditions of agreements/contracts –including Kufr/Haraam conditions- are still valid when an individual validates the contract by signature even if signed after Tahrif has been done. Kufr such as giving authorization to the Taghout courts when/if dispute arises between the parties is validated by signing the agreement/contract even if Tahrif is done. Since the agreement/contract is still valid, the claim of Tahrif is an attempt of fooling oneself and also it is an open indication of consenting to Kufr which is Kufr no doubt. The one who seeks protection of his Din would never attempt such trickery of the Jews.

We want to touch upon a matter that many are unaware of. All of these agreements/contracts are Aqd. Many people who know neither Din nor Dunya (worldly life) are also unaware that Aqd is a term that has an importance both in the Islamic Fiqh and Man-made jurisdictions. They merely focus on the statement of Kufr in the agreements/contracts and deem that the statement of Kufr which takes place in the agreements/contracts is a statement that one stated in the past and has no ruling at the moment. Whereas the statement: “when/if Ikhtilaaf (disagreement) occur between the both parties so and so court of Taghout has the authority to solve it or such law is in effect/ force.” in the agreements/contracts is not a statement that was written in the past which has no ruling at the moment rather it is a condition of the agreements/contracts which is binding upon both parties as long as the agreement/contract is valid and continuing.

There appears to be many conditions which take place in the agreements/contracts. Some of the conditions would be Mubah (permissible), some Haraam (unlawful) and some Kufr (disbelief). It is not a characteristic for the seeker of Haqq to claim that with Tahrif the condition regarding Kufr is invalid meanwhile the remaining conditions are still valid. This is because, as long as the agreement/contract is still valid and effective, the one who made the agreement/contract is still able to benefit from the service due to the full termed agreement/contract that was done. Therefore there certainly is neither reason nor indication to say that only every condition of the agreement/contract other than the conditions which contain Kufr/Haraam is valid.

Let’s be realistic and take the agreement/contract in hand: If there is a condition in the agreement/contract which states that a certain amount of Riba (interest) shall be paid for a particular violation of the contract. The person who is benefiting from the service will be obliged to pay the Riba if he violates the conditions of the agreement/contract even if he made Tahrif to the request. Likewise it is the same for the condition of the agreement/contract regarding the authorized court. We know that if either party violates the agreement/contract his opponent can only apply to the authorized court that was written to the agreement/contract and not to any other court such as the specific court in a specific city that was decided, designated and agreed by signing the agreement/contract.

In short; the Aqd agreement/contract is still valid and effective with every condition that was written on the agreement/contract. In order to invalidate something on the agreement/contract, both parties need to agree and show consent to the cancellation in order for the condition to change or become invalid. Since this is the state, how and with which Dalil can one claim that the Kufr condition in the agreement/contract is invalidated just by scratching out the aforementioned condition without the consent of the other party? One may not be able to bring a single Dalil neither from Shari’ah nor from the intellect.

It seems all of these claims are sourced from theories that are innovated in order to legalize actions by those who not live according to their Din. The one with intellect would not pay any attention to these. However we will give some details regarding the matter as to how the scholars approach the matter of Aqd with the hope of satisfying and opening the hearts to the Hidayah (guidance). We are going to mention what Aqd is and what the Arkaan (pl., Rukn; pillars) of Aqd are, Inshallah.


الْعَقْد al-Aqd in the Lugah (lexicon) is; knotting, tying. Shari’ah wise it is described in two meanings. The first being that it is the thing that one promises himself or others. Qurtubi (rahimahullah) stated the following in the Tafsir (commentary) of the Ayah:

يَا أَيُّهَا الَّذِينَ آمَنُواْ أَوْفُواْ بِالْعُقُودِ
"O ye who believe! fulfil your compacts." (al-Ma’idah 5/1)

الْعُقُودُ الرُّبُوطُ، وَاحِدُهَا عَقْدٌ، يُقَالُ: عَقَدْتُ الْعَهْدَ وَالْحَبْلَ، وَعَقَدْتُ الْعَسَلَ  فَهُوَ يُسْتَعْمَلُ فِي الْمَعَانِي وَالْأَجْسَامِ، قَالَ الْحُطَيْئَةُ
قَوْمٌ إِذَا عَقَدُوا عَقْدًا لِجَارِهِمُ ... شَدُّوا الْعِنَاجَ وَشَدُّوا فَوْقَهُ الْكَرَبَا
فَأَمَرَ اللَّهُ سُبْحَانَهُ بِالْوَفَاءِ بِالْعُقُودِ، قَالَ الْحَسَنُ: يَعْنِي بِذَلِكَ عُقُودَ الدَّيْنِ وَهِيَ مَا عَقَدَهُ الْمَرْءُ عَلَى نَفْسِهِ، مِنْ بَيْعٍ وَشِرَاءٍ وَإِجَارَةٍ وَكِرَاءٍ وَمُنَاكَحَةٍ وَطَلَاقٍ وَمُزَارَعَةٍ وَمُصَالَحَةٍ وَتَمْلِيكٍ وَتَخْيِيرٍ وَعِتْقٍ وَتَدْبِيرٍ وَغَيْرِ ذَلِكَ مِنَ الْأُمُورِ، مَا كَانَ ذَلِكَ غَيْرَ خَارِجٍ عَنِ الشَّرِيعَةِ، وَكَذَلِكَ مَا عَقَدَهُ عَلَى نَفْسِهِ لِلَّهِ مِنَ الطَّاعَاتِ، كَالْحَجِّ وَالصِّيَامِ وَالِاعْتِكَافِ وَالْقِيَامِ وَالنَّذْرِ وَمَا أَشْبَهَ ذَلِكَ مِنْ طَاعَاتِ مِلَّةِ الْإِسْلَامِ. وَأَمَّا نَذْرُ المباح فلا يلزم بإجماع من الامة، قال ابْنُ الْعَرَبِيِّ


"Uqood means ties and its singular is Aqd which means tie. As it is said:

عَقَدْتُ الْعَهْدَ وَالْحَبْلَ "I tied the Ahd (covenant) and the rope."

It is also said:


وَعَقَدْتُ الْعَسَلَ "I tied the collar."

The term Aqd is used for both the meanings; material and spiritual. The poet al-Hutay said:


قَوْمٌ إِذَا عَقَدُوا عَقْدًا لِجَارِهِمُ ... شَدُّوا الْعِنَاجَ وَشَدُّوا فَوْقَهُ الْكَرَبَا
"They are such tribe that whenever they tied an Aqd with their neighbors (or those who are under their protection) ... They tie their ties repeatedly from every side."

Allah Subhanahu commands to fulfill the Uqood. Hasan said: Meaning by (Allah’s stating) this is the Uqood’ud Dayn (agreements of loan) which are buying and selling, hiring and leasing, Nikah (marriage), divorcing, cultivating the land for a share of its produce, reconciliation, transferal (of a property or right), option of revoking, freeing slave, promising emancipation on the owner’s death and all other agreements that one node on himself, as long as they are not against the Shari’ah. Likewise whatever one node (vow) on him amongst the Taah (obedience) to Allah such as Hajj, fasting, I’tikaaf, Qiyaam and vow and whatever goes in this regards which is accounted as Taat in Millat’il Islam (the Religion of Islam). When it comes to the Mubah Nadhr (permissible vow), it is not binding according to the Ijmaa of Ummah. This is said by Ibn Arabi." (Qurtubi, Tafsir)

Other than this general meaning of Aqd, there is also another specific meaning of Aqd and Zarkashi amongst the Usoul scholars of the Shafii described it as follows:


ارْتِبَاطُ الإِْيجَابِ بِالْقَبُول الاِلْتِزَامِيِّ كَعَقْدِ الْبَيْعِ وَالنِّكَاحِ وَغَيْرِهِمَا

"It is tying Ijaab and Qabul to each other with a binding manner such as the Aqd of buying-selling, Nikaah and other than them." (Zarkashi, al-Manthur fi’l Qawaid, 2/397)

When one says Aqd it is understood in both the Islamic Shari’ah and man-made laws that the agreements which are executed by two or more parties which fits better the latter definition of the term that was described by Zarkashi. Contacts & agreements that we are dealing with also fits here since it becomes valid after the parties agreed upon something by the way of Ijaab and Qabul. Conditions of a contract are the general conditions in which parties of the contract must submit to. If that does occur any condition which opposes the Islamic Shari’ah, Muslim scholars made Ittifaaq (agreed) upon the fact that this very condition is invalid. Jumhur (the Majority) of the scholars stated that if that happens the entire contract becomes invalid and a new contract must be executed but the Hanafi scholars stated that only the condition which opposes the Shari’ah would be invalid and when it is removed then the rest of the contract will be valid. According to the statement of the Jumhur, contracts which contain conditions that are in opposition with the Shari’ah, whether they are Haraam or Kufr then the Aqd is invalid with its entirety and one needs to execute a new contract which does not contain anything opposing the Shari’ah in order to benefit from the service. According to the Hanafi scholars, the contract which contains Haraam/Kufr conditions is still valid however the conditions that oppose the Shari’ah shall be removed.

In our era most of the contacts & agreements are fixed and it is very difficult to shape it by individual request. Making Tahrif on the contracts & agreements in the manner of pen tricks surely has no effect. It is because no matter what one does under the mask of Tahrif on the contract, the condition which contains Kufr is still valid therefore it is binding unless both parties agree on its invalidity and jointly accept it to be taken out. The attempt of Tahrif on the contract is actually an attempt of making Tahrif on the Din of Allah. Wallahu A’lam (and Allah knows)!..
Whosoever desires الْعِزَّةَ al-Izzah (honour, power and glory) then to Allah belong all الْعِزَّةَ al-Izzah [and one can get honour, power and glory only by obeying and worshiping Allah (Alone)]. To Him ascend (all) الْكَلِمُ الطَّيِّبُ al-Kalim al-Tayyib (the goodly words), and الْعَمَلُ الصَّالِحُ al-Amal al-Saalih (the righteous deeds) exalt it (the goodly words i.e., the goodly words are not accepted by Allah unless and until they are followed by good deeds). (Fatir 35/10)

 

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