Allah s.w.t. prohibits Muslims from consuming property without due rights (bathil). The Prophet s.a.w. also elaborates the meaning of ‘bathil' with the prohibition of gharar. According to scholars, gharar is one of the branches of gambling.[1]
DEFINITION OF GHARAR AND EVIDENCE OF ITS PROHIBITION
The definition of gharar according to the Syariah is:
ما يكون مستور العاقبة أو الخطر الذي يستوي طرفاه , أي الوجود والعدم
Anything that the end result is hidden or the risk is equally uncommon, whether it exist or not. [2]
Prophet Muhammad s.a.w. emphasizes that:
نهى رسول الله صلى الله عليه وسلم عن بيع الغرر
It was reported that the Messenger of Allah) forbade sales that involve undue risk (gharar). (Related by Muslim, 5/3)
TYPES OF GHARAR AND THEIR VENUES
Gharar is divided into two categories, Gharar Fahish (Great Gharar) and Gharar Yasir (Light Gharar).
Scholars derive that if Gharar Fahish is found in a trading transaction or investment, it will affect the validity of the contract from the Syariah perspective.[3]
Gharar is forbidden by Islam to protect the well-being of both parties and ensure a satisfactory outcome. It is also forbidden by the Syariah because this element typically causes enmity and dispute.
However, the conditions of Gharar can change according to the environment, custom and technology. For example, scholars of the past forbade the purchase of fish in water under the assumption that Gharar Fahish will occur. Nowadays, this ruling can change if it can be proven with certainty that modern equipment has the ability to catch fish in water with high accuracy.
§ Venues of Gharar
Some of the venues that Gharar may occur are:
1) Type, shape, quantity, weight and sum
2) Due to delivery time
3) Due to price value and payment method.
4) Due to ambiguity in ownership and the capacity of asset owner
§ Examples of Gharar
Some examples of gharar are:
a) Sale of an item that is yet to be owned and is difficult to be acquired by the seller, such as selling a horse that has escaped, or a lost car that is yet to be retrieved.
b) Sale of an item that is not described properly.
c) Sale of an item where the price has not been finalized.
d) Sale of an item where the price is dependent on circumstances.
e) Sale of an item without a proper description that can avoid dispute, eg. selling a garment in a plastic packaging without allowing customers to inspect it.
f) Sale of an item that is attached with conditions which are ambiguous, eg. if my friend arrives or if the price goes up etc.
PART THREE: GHARAR AND GAMBLING IN THE CURRENT FORMS
1. COMPETITION
The question and answer section below will illustrate Gharar and its present form.
Question: Please elaborate on the fatwa that forbids gambling through the short message system (SMS). Despite being forbidden, more people are getting involved. Is there a new fatwa that allows it?
Answer: The competitions through SMS are haram because it contains elements of gambling and gharar. In this type of competition, contestants spend money through the SMS with the hope of winning. It is considered haram when:
a) Contestants are required to pay a registration fee for a competition in which winning depends on luck.
b) The prizes awarded by the organizer are from the registration fees.
In the 14th council held from 8-13 Zulqaedah 1423H, The International Islamic Fiqh Academy established a legal opinion (ordinance no 127 (14/1)) that all types of competition and games, in which the prizes are prepared using the money collected from the registration fees, are haram because they contain the element of gambling.
According to this opinion, prizes for competitions that are permissible in Islam must comply with the following conditions:
1. The prizes are donated by a third party who does not participate in the competition, while the registration fees are utilized for administration only.
2. The prizes are prepared using part of the registration fees, while the other portion is utilized for administration.
The International Islamic Fiqh Academy also established the hukm for competitions in promoting businesses:
I. Various cards that offer discounts for goods and services.
Hukm: If there is a high yearly or monthly fee, it is considered haram because it contains elements of gharar and gambling.
II. Cards that are given free by companies to promote their products.
Hukm: The prizes offered are permissible.
III. Paying a rate that exceeds the regular telephone or SMS charges in order to participate in the competition.
Hukm: It is haram due to the elements of Gharar and gambling.
Below are further clarifications in avoiding elements of gambling and gharar in competitions:
1. Competitions that do not offer any prizes are permissible so long as it is Syariah compliant.
2. Competitions that offer prizes must comply with the following conditions:
I. The competition should have a clear objective, vision and must be conducted in accordance to the Syariah.
II. Only part of the registration fee can be used for prizes.
III.It must not lead to committing that which is haram and abandoning that which is obligatory (wajib).
For competitions that require payment to be made through the phone in order to participate, gharar and deceit have occurred because:
a. The caller is unsure how much he is paying because typically the call will be answered by a machine for few minutes. The duration is not indicated thus resulting in exorbitant phone charges.
b. The caller is unsure on the status of his participation even though he has made the phone call.
c. Due to the competition, the caller will receive a higher phone bill than usual.
2. CHARGES BY DOCTORS, CONSULTANTS AND MECHANICS
Question: After experiencing some pain in my leg, I was referred to an orthopedist. He instructed me to do a blood test, urine test and foot x-ray. After a five minute consultation, I was sent home and asked to come back for review the next day.
My bill was almost RM 400 and the five minute consultation fee was RM 60. The details of the bill are stated on the receipt.
What is the ruling of such charges?
Answer: There are elements of Gharar and Jahalah in the charges.
Prophet Muhammad s.a.w. stresses:
نهى رسول الله صلى الله عليه وسلم عن بيع الغرر
It was reported that the Messenger of Allah) forbade sales that involve undue risk (gharar). (Related by Muslim, 5/3)
Jahalah means lack of clear and accurate information on the item being bought or the price to be paid. Thus, the illustration above falls under the category of Jahalah and is also categorized as Gharar.
DOCTOR, HOSPITAL AND DOUBTFUL EARNINGS
The example above shows that earning money this way, while not haram, is considered as syubhah, or less virtuous and may lead to Gharar Fahish that can invalidate the contract. Some of the earnings may also not be Syariah compliant. However, society accepts it and is not aware of the issues of gharar and injustice. Nevertheless, it is more virtuous if it can be improved.
Islamic scholars have This is because the scholars of Islam mention, when elaborating the characteristics of gharar, that:
باع ما لم ير ولم يوصف له فلم يصح
The trading of an item that is not seen nor has been described, is indeed invalid.[4]
Therefore, if a patient is not informed of the price and the calculation benchmark at the beginning of the contract between the patient and the doctor, it can lead to Gharar Fahish.
The patient must have full information regarding the consultation fees or treatment fees before it is carried out. The fees need to be clearly stated for example, consultation fee for one minute to one hour: RM60. It cannot be assumed that people already know how much it will cost. This way, jahalah and Gharar Fahish can be avoided.
Prescribed medicines may also contain elements of jahalah and gharar. Most people have no say in choosing their medicine. Everything is prescribed by the doctor. Patients trust the doctor's decision.
The issue here is that medicines have different prices. There are cheaper alternatives that deliver the same results. However, we are not given the option to choose a cheaper alternative. If more information can be acquired through a thorough discussion with the doctor, jahalah can be avoided.
As for the case above, when I returned to the next day, I found out that my problem was not my bones but that I had a high level of uric acid. The orthopedist referred me to another doctor as he suspected that I may have gout. The second consultation lasted only four minutes, yet the charge was RM 60.
I was never informed of the charges for the treatments I underwent on the first day. Perhaps I was to blame since I never asked. Unfortunately, most people don't ask and information is rarely offered by the medical centers or hospitals. This is fine if you can afford it, but what of those who can't? This does not fully comply with the Syariah.
In brief, to avoid jahalah and gharar:
1) Ask about the charges before consulting with the doctor.
2) Patients should be informed of the type and price of each medicine prescribed to them.
3) The cost of each treatment, surgery or related items should be informed before it is carried out.
Unfortunately, some places make it a condition for patients who undergo treatment with them to obtain medicines only from them. Again, this is not Syariah compliant since patients are not given a choice. Patients are sometimes too ill to argue and accept the conditions. All patients have the right to obtain information and make decisions.
Vehicle Mechanic
A similar issue arises in the car service industry. Some good companies would inform the customer of the costs before servicing or repairing the car. Indeed, this conforms with the Syariah. However, some companies do not inform the customer. So even though the customer does not agree with the work carried out, he still has to bear the cost.
In conclusion, doctors, clinics, hospitals, vehicle mechanics, and other jobs that share similar earning characteristics should revamp and clearly state their charges as well as acquire customers/patients consent. This is to ensure that the earnings obtained are halal.
As for the customers, ask about the charges before obtaining a service or treatment so as to avoid syubhah.
Consultant and Lawyer
Motivational/family consultants, financial managers and even lawyers should also review their consultation fees. To avoid syubhah, state your charges at the beginning and ensure your earnings are Syariah compliant.
[1] Dirasat Syar'iyyah Li Aham al-‘Uqud Al-Maliah, Dr, Muhammad As-Syanqiti, 1/205
[2] Bada'i As-Sonai'e, Al-Kasani, 5/263 ; Al-Mabsut, Al-Sarakhsi, 3/194
[3] Bidayatul Mujtahid Wa Nihayatul Muqtasid, Ibn Rusd Al-Hafid, 2/153
[4] Al-Mughni , 4/15
Sources By:
Zaharuddin Abd Rahman
7 July 2008
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