Fiqh Al Zakah by Dr. Yusuf al Qardawi

The sixth category of zakah deservants is persons under debt. According to the Hanafite school, this group includes all who do not own nisab above what is needed to pay their debts.1 On the other hand, Malik, al Shafi'i, and Aamad distinguish between two kinds of debtors, those whose debts are for personal use and those whose debts are caused by their social and political responsibilities. This distinction implies differences in the ruling of those two categories, and each shall be discussed alone.

This subcategory is limited to individuals who are under debts used for personal reasons and do not have assets and income sufficient to rid them of their debt in addition to satisfying their essential needs. Debts may have been borrowed for consumer expenditures, including marriage, medical bills, building a house for personal residence, etc., and debt resulting from accrued liability toward others. Al Tabari reports from Abu Ja'far from Qatadah that the state must pay from the treasury debts of those who borrowed without extravagance, yet do not have enough funds to repay their creditors.2

Also in this group are those hit by natural disasters or accidents that destroy their assets and force them to borrow in order to continue fulfilling basic needs. Mujahid is reported to have said, "Three kinds are included in this sub-category: a person whose wealth is destroyed by flood, a person whose wealth is destroyed by fire, and a person with many dependents and no means, who borrows to support his family."3 In the saying from Qubaisah bin al Mukharib, reported by Ahmad and Muslim, the Prophet (p)

allowed a person hit by a catastrophe that wipes out his wealth, to ask the state for the zakah which is his right, until he procures sufficiency of sustenance.

Zakah is thus an insurance against the financial effects of catastrophes and accidents, an insurance which preceded all known forms of insurance by several hundred years.

This insurance is of higher quality and comprehensiveness than modern forms of insurance in the West. Western insurance compensates only subscribers, with contractual amounts proportionate to the premium paid, which allows the wealthy to insure for higher sums, while the Islamic insurance of zakah compensates those affected by disaster, without requiring them to contribute premiums, and the amount of compensation is determined by the need of the affected persons, and not by their ability to pay premiums.

Four conditions must be met before aid is given to those under personal debts:

1. The debtor must be in need of financial aid. Persons who own wealth sufficient to cover their debts may not be given from zakah.4 Individuals who do not own sufficient wealth but can pay their debts from their earning may still be eligible for zakah on the grounds that repaying the loans from their income would take time. This condition does not imply that the debtor must be totally destitute. Scholars explicitly state that shelter, clothing, furniture, utensils, servants, and transportation if needed are not considered wealth from which loans must be paid. If the amount of debt is more than available wealth of the debtor, zakah may be given to pay the difference.

2. The debt must have stemmed from Islamically lawful activity, such as borrowing to support the family. Loans used for prohibited practices, such as consumption of alcoholic beverages, or extravagance in lawful items cannot be paid with zakah.

Extravagance in lawful items is prohibited by the verse "O children of Adam, wear your beautiful apparel at every time and place of prayer; eat and drink, but waste no by excess, for God loves not the extravagant."5 This condition is based on the principle that giving zakah to pay a debt caused by prohibited spending is like helping sinners and encouraging others to indulge in sin. If the debtor repents, he or she may be given zakah, since repentance washes out what preceded it. Some jurists add the condition that a period of time sufficient to confirm the sincerity of repentance must lapse before the repentant debtor can be given zakah to pay due debts caused by unlawful activity.

3. The debt must be due immediately. If the debt is deferred, scholars differ on whether the debtor may be given zakah. Some disapprove of this and others approve if the debt is due within one year. On the other hand, some scholars argue that debtors of deferred loans may be given zakah regardless of the due date of their loans, on the grounds that they are included in the general definition of individuals under debt.6 I think any choice between these three opinions can only be made after knowing the total proceeds of zakah and the requirements of other categories of deservants. Then, depending on the residual, one can expand the coverage of deferred debts or restrict it.

4. The debt must be due to other humans. Obligations to God, such as due zakah and compensation for breaking certain conditions in Shari'ah [kaffarat] are excluded.7

Malikites do not require this condition, while Hanafites include zakah itself among debts to God that can be paid from zakah.

A person under debt is given an amount sufficient to rid him or her of debts. Since the zakah payment in this case is exclusively for the payment of debts, if any or all of the debts are fulfilled by other means (such as by volunteers) or discounted by the creditors, the portion of zakah not used for the satisfaction of debts must be returned to the zakah institution.

It is worthwhile to digress briefly and look at Islam's stance on debtors and borrowing:

A. Islam teaches Muslims moderation and economy in living and encourages them to avoid borrowing.

B. If circumstances force Muslims to borrow, they must do so after careful planning and with full intention of paying back the loan. The Prophet says, "As for the person who takes funds from others with the intention of returning them, God helps him fulfill his due, but as for the person who takes funds with the intention of consuming and destroying them, God will destroy him."9

C. If the debtor is unable to pay all or some of his debts in spite of evidence that shows his good intention, the state saves him from the burden and humiliation of debt. It is said that "debts are a source of depression in the night and humiliation in the day." The Prophet used to supplicate God, "O my Lord, I seek refuge in You from the burden of debt and from defeat by the enemy, and from giving enemies [the opportunity to] gloat."10

Debts are not only a source of anxiety and insecurity for the borrower, but they also affected the borrower's behavior and morality. The Prophet (p) often asked God for protection from being under debt. He was asked why he associated seeking refuge from debts with seeking protection from punishment in the grave, from the temptation of worldly life, and from the temptation of the false messiah. He answered,"Indeed, when a man is burdened by debt, if he speaks he lies and if he promises he breaks his promises."11 The Prophet used several means to discourage his Companions from borrowing, even declining to pray at the funeral of a person who died leaving unfulfilled debts. Knowing how disgraced a person would be if the Prophet refused to pray at his funeral, one can realize the extensive effect of such discouragement.

When the Islamic state prospered, and the resources of its treasuries became manifold, the Prophet started paying the debts of Muslims from the state. Abu Hurairah narrates that the Messenger of God was often brought the coffin of a man who died in debt. The Prophet would ask, "Did he leave anything to pay his debts?" If the answer was yes, the Prophet would pray for the body, and if the answer was no, he would say, "Pray for your friend." Then, when God opened lands and their treasures for him, he said, "I am more responsible for believers than their own selves. He who dies leaving debts due on him, I take responsibility for their payment."12 The Prophet (p) encouraged Muslims to help people under debt, in brotherhood, in obedience to God, and in aspiration of reward from God. Abu Sa'id al Khudri says, "A man at the time of the Messenger of God (p) suffered financial loss because of fruits he bought; his debts accumulated until he went bankrupt. The Messenger of God (p) said, "Give him charity .

. ." people gave him charity, but that was not sufficient to pay all the man's debts. The Messenger of God (p) said to the man's creditors, "Take the present funds, and you have nothing more."13

The last and most important means of helping debtors is the share God prescribes for them in zakah funds. By this means, Islam frees debtors from the obligation and humiliation of their loans. The world has never known another system which includes in its very constitution the rights of debtors to financial aid. By paying these debts, zakah achieves two objectives: relieving those burdened by debts and providing guarantees to creditors, which helps all members of the community feel secure about extending loans to each other. In this way, Islam relieves those under debts without forcing them to liquidate essential assets needed for their living. 'Umar bin 'Abd al Aziz wrote his province governors to "pay the debts of those under debts." Some of his governors wrote back, "There are people who own shelters, servants, mares, and furniture, yet are under debt." 'Umar answered, "A Muslim needs a home to reside in, a servant to help in housekeeping, a mare to ride in war, and furniture in his house. Yes, pay the debts of such people."14 This system of justice and mercy that came from God fourteen centuries ago is incomparable to man-made systems and modern bankruptcy laws. In the Roman canon, if a debtor is unable to pay his debts, he must be enslaved if free and imprisoned or killed if already a slave.15 In pre-Islamic Arabia, debtors who could not pay their debts were sold to the benefit of the creditor.16 God says, "If the debtor is in difficulty, grant him time till it is easy for him to repay. But if ye remit the debt by way of charity, that is best for you, if ye only knew."17

This category includes benevolent persons of stature who undertake activities for the public interest, such as reconciliation of disputes among groups and individuals, often by paying compensation and ransom from their own assets. They may also undertake projects of public benefit, such as building orphanages, mosques, hospitals for the poor, or schools for children, which may put them in debt. Persons of this kind are helped to pay their debts with zakah.18 According to some Shafi'ites, such individuals should be paid what satisfies their debts, even if they are rich.19 Qubaisah bin al Mukhariq al Hilali says, "I accepted a financial responsibility [to reconcile two disputing groups] and I went to the Messenger of God (P) to ask for help. He said, "Stay here until [the proceeds of] zakah come, so we can give you from it." The Prophet Continued, "O Qubaisah, asking is not permissible except for three persons: One who accepts financial responsibility [for reconciling people] may lawfully ask until that financial charge is satisfied. Then he must not seek any more help. One who is struck by disaster that wipes out his wealth may lawfully ask until he reaches a satisfactory level of sustenance, and one hit by poverty such that three wise clansmen confirm that he is struck by poverty may ask until he procures sufficiency of sustenance. O Qubaisah, any asking beyond that is evil. It is eaten by the person who accepts it as evil."20

This saying indicates that a person who accepts financial responsibility in the process of reconciling differences among other people can ask for zakah to help discharge that responsibility, even if that person were rich, because the condition of sufficiency of sustenance does not apply.21

Al Nawawi says there are two opposing views among Shafi'ites about this. Some believe it is not permissible to pay the debts of deceased persons from zakah. This view is consistent with the opinion of al Nakha'i, Abu Hanifah, and Ahmad. The other opinion is to allow this action, on the basis of the general implication of the pertinent verse. This is also the view of Abu Thawr.22 It is reported that Ahmad argues that zakah payment for the debts of the deceased cannot be made because such payment must be made to the debtor himself and the debtor in this case is dead.23 Al Khirashi, in his commentary on the text of Khalil, says "It makes no difference whether the debtor is dead or alive. The sate must pay the debts from zakah. Some jurists even argue that debts of deceased persons have priority over those of living persons, since the latter may be able to pay in the future."24 Al Qurtubi remarks,25 "Scholars of our school as well as other schools think the debts of deceased persons may be paid from zakah, since as a debtor, he is included in the term "those under debt"; especially since the Prophet (p)

said, "I am more responsible for every believer than his own self; he who leaves wealth, it is for his family, but he who leaves behind debts or dependents, they are my responsibility."26 This is also the view of the Ja'fari school.27

In my opinion, the texts and spirit of Shari'ah do not prevent the payment of a deceased person's debts from zakah. This is supported by the fact that God, in the verse about zakah deservants, distinguishes between two kinds of categories. The first are deservants to whom zakah is paid such that they became owners of what they receive while zakah is not necessarily paid to the second group, but on their behalf. Those under debts are of the second kind, so it must be permissible to pay the debts of deceased persons from zakah. This is the opinion approved by Ibn Taimiyah.28 It is supported by the above saying.

I think there is a sound analogy between borrowers and those under debt. This analogy allows giving loans from zakah, which is consistent with the broad objectives of zakah. Persons who need loans can be given zakah under the title of those under debt. In this way, zakah can contribute practically to the elimination of interest. This is the view which the late Abu Zahrah, Khallaf and Hasan express in their study of zakah.29 They argue that if fair debts can be paid from zakah, why not, even by priority, give interestfree loans from zakah? Muhammad Hameedullah of Hyderabad expresses a similar opinion in his study entitled Banking Without Interest.30 He supports his opinion by stating that individuals under debt are of two kinds: those who cannot pay back alreadyused debts, and those who need loans which they can pay back in the future.31 Thus Hameedullah considers persons who need loans as persons under debt, but one may argue that persons who need loans are obviously not under debt before they receive the loan. Consequently the argument of Abu Zahrah and his colleagues is stronger.