In Islamic Economy, there is a terminology of “muqashshah”, which in Arabic etymology means, when someone, Mr. A for example, indebted to Mr. B, while B in the same time indebted to him the similar amount of money. In terminology point of view, muqashshah means the consideration of abolishment of A’s debt to B, since B also have debt on him. Thus, muqashshah is a one of the way to pay someone’s debt. Ibnu Jizzi, a scholar of Maliki, stated that, “Muqashshah is abolishing debt by debt.”
The Difference between Muqashshah and Ibra’
In Arabic etymology, ibra’ (the abolishment of debt) means cleaning, purifying, and being away from something. Terminologically, Ibra’ is the abolishment of other people’s debt. Ibra’ differs from muqashshah, in a way that muqashshah is an abolishment of debt by compensation, while ibra’ does not require any of it.
The Ruling of Muqashshah
Muqashshah, as one could see, is legalized in Sharia by some argumentations and by logical reason. In a hadeeth, Ibn Umar once told The Prophet Shallallaahu ‘alayh wa Sallam, “O The Messenger of Allah, hold a second, I want to ask you question. I sold a camel in Baqi’, and the price was set using dinar, but the payment I got was in the form of dirham. Sometimes the price was set using dirham, but what I received was dinar. I took this from that, and I paid by this.” The Messenger of Allah replied,
لَا بَأْسَ أَنْ تَأْخُذَهَا بِسِعْرِ يَوْمِهَا مَا لَمْ تَفْتَرِقَا وَبَيْنَكُمَا شَيْءٌ
“It is alright for you to take it, but with the current price (of that day), and with the requirement that before you left them, all parties have already received their rights.” (Collected by Abu Daud, no. 3354; but the status is weak according to Al Albanee)
This is a strict argumentation to show the legal status of exchanging the price of a good in debt by other debt. Logical reason also supports the legal status of such transaction.
Types of Muqashshah
Muqashshah is divided into 2 types:
First, ikhtiyariyyah: Muqashshah done with the willingness of both parties.
Second, Jabariyyah: Muqashshah occurred upon 2 kind of debt, with certain requirements.
According to majority of the expert in jurisprudence, the implementation of muqashshah jabariyyah requires similarities between the 2 debt in their type, characteristic, time of settlement, and the strength of debt. These requirements do not acknowledged in the practice of muqashshah ikhtiyariyyah.
If there are 2 debt which differ in their type, characteristic, time of settlement, or one stronger than the other, the practice of muqashshah can not be applied, unless there are willingness of both sides, regardless of the causal of those debt.
The Object of Muqashshah
The object of muqashshah is debt, since it can not be applied upon goods and goods, or goods and debt, unless the goods have been changed to debt. If the changes occurred, the muqashshah can be applied as long as the requirements are being fulfilled.
The Requirements of Muqashshah
According to Shafi’i the requirement of muqashshah comprises things as follow:
– The object must be in the from of debt, thus there is no such of muqashshah on goods, since muqashshah on goods is a kind of exchanging transaction requiring acquiescence of both sides in it. While in the case of debt, there is no use if the money we pay to settle the debt be returned simultaneously.
Hence, it is forbidden to take the possession of the debtor without his willingness, as long as he admitted that he have debt upon the creditor and he intended to settle his debt. The debtor is rightful to choose the kind of settlement he wants. And it is inappropriate to say that after his goods being taken, that means that muqashshah had been practiced, because muqashshah applied upon debt, and not upon goods.
– The practice applied upon the value, not upon the goods that could be substituted by the other goods, such as staple food and kernels.
– The debt is not included in salam transaction. If both debts are kinds of salam,then muqashshah applied upon it is not permitted, although both parties agree to commit it. That is the opinion written in al-umm, a prestigious book of Imam Shafi’i.
– The type and time of settlement of both debts are similar. If one debt is in rupiah (IDR), and the other is in dollar, then there is no muqashshah for both debts.
– Practiced after one side claimed debt of the other. If there are yet no one claiming, then according to Qadhi Husain, (Qadhi is similar to judge), muqashshah cant be applied , and thi s is an agreement of scholars of madz-hab of Shafi’i.
– The muqashshah is not related to wealth that must be carefully handled. Ibn Abdis Salam said, ” If it is impossible for someone to receive his right, he is permitted to take it unless if it is upon the possession of the insane, orphan, and common possession of muslim”.
– There is no practice of muqashshah upon the law of qisas and had. If there are 2 people committing qazaf(the accussation of doing adultery) to one another, then there is no muqashshah for them. The like for 2 person who wounded each other, each of them are obliged to pay the blood money (diyat).
Based on the above criteria, if A, for example, possess a debt on B, as much as the debt B on him, whether the causal is similar, as in salam transaction and qardh (debt and credit), or different, as a qardh transaction by using credit for goods, and both debts are similar in their type, characteristic, and settlement, then the scholars of Shafi’i have 4 opinions upon it.
The strongest opinion, according to Nawawi, as what states in al Umm, is that muqashshah could be automatically happened without willingness of both sides. The reason is that asking or claiming debt of someone which amount is exactly as the amount of the claimer’s debt, is something useless.
Muqashshah In The Obligatory Charity
If there is a rich man who lend their money to the poor, and he declared that, “This debt will be a part of my obligatory charity settlement,” then this condition is not permitted until the poor one settle his debt, then the rich one return the money back to him. And this is the strongest opinion in madz-hab of Shafi’i.
Muqashshah In Entrusted Goods
The Scholars of madz-hab of Hanafee stated that if someone entrusts his goods to his friend, and he has debt upon that friend of him, the similar goods as his entrusted one, then there is no such of muqashshah unless both of them joining each other in one place and agree to do muqashshah on their goods, and the entrusted goods must be a concrete, real, one. This is the opinion of Zarkasi from madz-hab of Shafi’i.
Muqashshah In Booty
If someone take other’s wealth as booty is someone who give that wealth possessor a credit, and the form of the credit is similar as the one take, then muqashshah could not be applied automatically, unless there is an agreement of it and the goods is concretely possessed.
Author: Abu ‘Ukkasha Aris Munandar, M.PI
Article of syaria.com
Description: categories of debt in islam