The Islamic Personality by Sheikh Taqīuddīn An-Nabahānī

(Al-hawala) is taken from transferring the right from one covenant of protection to another. It is transferring by the one upon whom is the right of the one seeking the right from him to another over whom he has a right. The transfer is established by the Sunnah. Al-Bukhari narrated via the way of Abu Hurairah (ra) that the Messenger of Allah (saw) said:

And in other words:

It is permitted in the debt and the thing i.e. immediately and deferred because it is the transfer of a right of one to another which is general covering all rights. Also because the words of the hadith: “If one of you is followed while rich” is general including that there is (al-ahad) and the rich man with an immediate right over him, and it includes that there is over him a deferred right so it remains upon its generality. The rich man is the one capable to pay. It came in the hadith from the Prophet (saw) that he said:

However the command of the Messenger (saw) to follow the rich man if it falls due upon him requires that he is not denying or a procrastinator. This is understood from compelling the assignee to follow the rich man; so the rich man becomes the one capable of paying, not the denier or procrastinator. The reality of the transfer and the stated text of the hadith indicates that there is necessary in the transfer assignor (muheel), the assignee (muhtal) and the assigned upon (muhal ‘alaihi). The one followed is the assignor (muheel), and the word “one of you” who is the one commanded to follow his debt is the assignee (muhtal) person. And the rich man, whom the person is commanded to follow him, is the assigned upon (muhal ‘alaihi).

Four conditions are stipulated for the validity of the transfer:- Firstly: The similarity of the two rights in species and in immediacy or deferred period because it is a transfer of the right and its transport so it is transported in its description. Hence it is valid for the one upon whom it is due to transfer gold for gold, or silver for silver, but it is not valid to transfer silver for the one upon whom gold is due or gold for silver. It is valid for the one upon whom there is a debt for (a period of) a month for a debt for a month, and the one upon whom there is a debt due for a due debt. It is valid to transfer an immediate (right) for immediate (right), and a deferred (right) for a deferred (right). However if one of the two debts is immediate and the other deferred, or the period of one of the two for a month and the other for two months, then the transfer is invalid.

Secondly: That the transfer be upon an established debt. So if the woman transfers her dowry upon her husband before consummation, it is invalid as it is not established. Were an employee to transfer his wage before the end of his work or before the end of the period of his wage, it is invalid. Were someone who had no debt upon him due to some one else to transfer him to another who owes him a debt, this is not a transfer but a delegation upon which is established the rules of delegation not the rules of transfer. If he assigned the one upon him is a debt to someone who has no debt upon him, this is also not a transfer so payment is not obliged upon the one transferred upon the assigned upon (muhal ‘alaihi) nor is the assignee (muhtal) obliged to accept that because the transfer is mutual compensation whereas there is no mutual compensation here. If the assignee (muhtal) with held the debt from the assigned upon (muhal ‘alaihi), he returns to the assignor (muheel).

Thirdly: It should be for a known amount of money and is invalid for unknown amount of money. Fourthly: That the assignor (muheel) transfers with his consent nor is he compelled upon the transfer because the right is upon him. So he is not obliged to pay it in a specific manner since he is not obliged to pay it in the manner which is upon the assigned upon (muhal ‘alaihi). Rather it is for him to pay it in any manner he wishes. Nor is the consent of the assignor (muhtal) and assigned upon (muhal ‘alaihi) a condition; rather their consent is not considered at all. The assignee (muhtal) is obliged to accept the transfer, and the assigned upon (muhal ‘alaihi) is compelled to accept the transfer.As for compelling the assignee (muhtal), this is due to the statement of the Prophet (Saw):

And because the assignor (muheel) can fulfil the right due upon him by himself or his delegate and the assigned upon (muhal ‘alaihi) has stood in his place in receiving so the assignee (muhtal) is compelled to accept. As for the assigned upon's (muhal ‘alaihi) non-consent, this is because the creditors made the assignee (muhtal) stand in his place in receiving so it does not need the consent of the one upon whom the right is due like delegation.

Accordingly the transfer in deed notes (sanadat) which comprise sums like checks or deferred sums whose period falls due—which are known as the transfer of things (hawalat al-‘ain), is permitted with the consent of the assignee (muheel) alone, nor is the consent of the assignor (muhtal) or assigned upon (muhal ‘alaihi) stipulated. Similarly the transfer of deed notes which include sums whose period has not fallen due like promissory notes—which are known as the transfer of debts—whether the assignee (muhtal) consented or not, and whether the assigned upon (muhal ‘alaihi) consented or not. The transfer is not a contract until consent be stipulated therein. So there is no offer and acceptance therein. Rather it is only the disposal of a person himself like the guarantee, standing security, bequest and similar disposals which are not considered contracts