How is it determined that a shart is متعارف ?

In Hidaayah (part 3) in the chapter of باب البيع الفاسد (p. 117, Maktaba Bushra version) the musannif explains the issue of those shuroot that make an aqd faasid.  He explains that if the shart is such that is in the category of لا يقتضيه العقد, then the bay’ will become baatil.

But at the same time, if the shart is such that it is   إلا أن يكون متعارفاً   then the aqd will not become faasid/baatil; even if the shart is such that is in category  لا يقتضيه العقد .

The muhasshee then presents an example of such a shart that will not make the aqd faasid in spite of being in the category of لا يقتضيه العقد, because it is a shart that is متعارف  :

كما لو إشترى نعلاً أو شيراكاً بشرط أن يحذوه البايع فلا يفسد به البيع

My questions are:

How is it determined that a shart is متعارف ?

And, can there be new shuroot that become متعارف in different times and eras?

If yes, who will determine them to be متعارف or not?

How is that process done?

Can there be ikhtilaaf in this determination?

In the Name of Allah, the Most Gracious, the Most Merciful.

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

At the outset, we apologize for the belated reply.

As this topic of Urf is quite broad, we will first introduce the topic of “Urf” that will assist in understanding the subject efficiently.

Definition of Urf [norm]

العادة عبارة عما يستقر في نفوس من الأمور المتكررة المعقولة عند الطباع السليمة [نشر العرف:٦٢]

Translation:

“Urf is defined as the recurring, logical habits that are entrenched in sound people”.

Types of Urf

There are three types of Urf. Namely:

1.        العرفية العامة

2.      العرفية الخاصة

3.      العرفية الشرعية

  العرفية العامة[Common Urf]

The general and common practices of the people are called Urf-e-Aam.

Example:

If a person takes an oath that he will never step into Zaid’s farm, in urf it means “he will never enter”, so if he drives into Zaid’s farm he will be considered as “Hanis”.

This urf is again divided into two types:

1.      Urf-e-Amali

2.      Urf-e-Qauli

Urf-e-Amali

It means the norm practiced by the people.

Example

Renting taxis from point A till point B without determining the fare upfront as the fare from point A till point B is “maroof “[known].

Urf-e-Qauli:

It means usage of a word according to the general understanding of the people.

Example:

If a person buys a loaf of bread in Singapore for two dollars, it means he has to pay two Singaporean dollars and not USdollars.

العرفية الخاصة  [Specific Urf]

The specific terminologies and practices of particular industries and businesses.

Example:

When you say “chips” it means long rectangular piece of deep-fried potato. But in “IT” industry it means “a piece of semiconducting material on which an integrated circuit is embedded”.

العرف الشرعية [Shar`ie Urf]

There are many words which have a literal meaning in arabic but their literal meaning is not meant by the speaker, rather its Shar`ie meaning is intended. This is considered as Shar`ie Urf. [نشر العرف:٦٤]

Example:

The literal meaning of Salah is Dua. But when one uses the word “Salah” it means the ritual prayer.

The difference between Urf-e-Aam and Urf-e-Khaas

If the urf is aam [common], then hukum [ruling] established through that urf will also be aam [general]. If the urf is khaas, then the hukum will be khaas [only apply to that particular region].

Example:

Let’s assume that the whole of Africa uses the word “haram” for talaq-e-ba’in and only the people of South Africa use it for talaq-e-raj’ie.

If a person uses the word “haram” for his wife in Central Africa with an intention of divorce, the wife will be considered as Mutallaqah-Ba’inah and if a person uses the same word in Durban, then it will be considered as Talaq-e-Raj’ie due to urf.

Note: If the urf is such that few people practice upon it and few don’t, then that urf will not be taken into consideration by the Mufti.

Important and Contemporary issues that are based on Urf

1.      The issue of dowry

2.      The issue of marriage gifts

3.      The issue of ownership between the spouses

4.      Swimming pool of the house

5.      Lifts in apartments

6.      Buying farms and holiday resorts

The issue of Dowry and marriage gifts

Muftis often face issues whereby they are asked about the ownership of the gifts or dowry.

Example:

Salman and Ayesha got married, Ayesha’s father gave her jewellery and Salman’s mother gave her daughter-in-law luxury clothing. Now if the norm and custom of their family and region is that brides are made the actual owners of the gifts, then she will be considered as the owner of the gifts.

The issue of ownership between spouses

If the husband allows his wife to use his belongings, it does not necessarily means that she is the owner of it.

Example:

If a husband allows his wife to use his car, it does not necessarily mean that she is the owner of the car. However, if she proves through evidence that he gifted her, then her claim would be accepted.

The issue of Swimming Pools, Lifts, Farms and Holiday Resorts

When a seller sells a house, flat, farm etc., the purchaser has the right to access the facilities attached to the asset because it is a norm that assets are sold with additional amenities.

Example:

Ahmed bought a house that has pool from Salman. Salman stops Ahmed from using the pool and argues that he only sold the house and not the pool. This claim of Salman will be overlooked due to urf and Ahmed will be considered as the owner.

Do laws of Shariah change due to change in Urf?

This question strikes my brains!

The answer to this that the Ahkaam which are expressly mentioned in the Holy Quran and in Ahadith of Rasulullah Sallallahu Alayhi Wasallam do not change by the change of times. It has a particular domain which is not affected by modern ideologies and logical interpretations.

Clash of Urf and Nas

If the urf is completely against the injunctions of Shariah, then that urf will not be considered. Example: Conventional Loans, usage of alcohol etc.

If the urf is not completely against the Nas, rather it contravenes certain aspects of Nas, then that urf will be taken into consideration.

Examples:

1.      The concept of manufacturing.^[1]

2.      Unlimited buffets, there is uncertainty about the amount of food that will be consumed but this uncertainty does not lead to any dispute.

3.      Weaving yarn on a condition that the weaver gets one third of it.^[2]

Note: if practicing upon urf leads to abandoning the Nas, then it won’t be permissible to practice upon such urf.

Example: If people of certain region practice upon قفيز الطحان, then it is impermissible to practice such urf as it is totally against the Nas. [مستفاد من نشر العرف للشامي]

The answers to your queries are as follows:

How is it determined that a shart is متعارف ? And, can there be new shuroot that become متعارف in different times and eras?

When a “shart” develops into a common custom and practice of the entire people of the region and that custom is neither completely against the “Nas” nor does it leads to abandoning the “Nas”, rather it contravenes certain aspects of “Nas”, then that “Shart” will be accepted by the Muftis of that region and it will be considered as “Takhsees of the Nas”.

If yes, who will determine them to be متعارف or not?

Ulama of the region will decide whether it is acceptable or not

How is that process done?

Through the general consensus of Muftis/Darul Iftaas/Jamiats of the region.

Can there be ikhtilaaf in this determination?

There are possibilities.

We refer Muhtaram Maulana to Allamah Shaami’s Nashrul- Araf for proper understanding of the subject.

And Allah Ta’āla Knows Best

Anas Sharieff Qasmi.

Student Darul Iftaa

Hyderabad, India.

Checked and Approved by,
Mufti Ebrahim Desai.

^[1] حديث نهي عن بيع وشرط;our answer is that istisna is not included in this Nas [hadith]

^[2] As though this issue of yarning is not part of Nas