The Qur'an does not give the definition of zakatable wealth nor does it provide the required percentages in zakah. It is left to Sunnah to give, by example or by directives, details of the general Qur'anic command and to convert the theoretical axioms of the Qur'an into a living reality in human life. The Prophet (p) was assigned this responsibility and he is the one who knows most about what God ordains in His Holy Book. God says, "And we have sent down unto thee the message that thou mayest explain clearly to people what is sent for them and that they may give thought."1 It must be realized, however, that the Qur'an mentions a few kinds of zakatable assets, such as (1) gold and silver, in the verse "and there are those who hoard gold and silver and spend it not in the way of God. Announce unto them a most grevious penalty."2 (2)

crops and fruits that are refered to in "Eat of their fruit in their season, but render the dues that are proper on the day that the harvest is gathered,"3 (3) earnings of trade and other business enterprises, refered to in the verse, "0 ye who believe, give of the good things which ye have earned,"4 and (4) what is drawn from beneath the earth, "And of that which we have produced for you from the earth,"5

Except for these items, the Qur'an mentions zakah in general and the word amwal [assets or wealth] in its plural form, such as in the verse, "Out of their wealths take sadaqah so by it you purify and sanctify them,"6 and "In their wealths and properties is the right of the poor, he who asks, and he who is deprived."7

The word amwal [meaning: wealth, property, goods, possessions] that is mentioned in the Qur'an is the plural of the word mal. Ma1 meant in the minds of Arabs at the time of the Qur'anic revelation all things that people like to acquire and own, including, for example, camels, cows, sheep, land, palm orchards, gold, and silver, Arabic dictionaries such as al Qamus and Lisan al Arab9 defined the word mal as all things one owns, knowing that bedouins use the word more in reference to their livestock and urban dwellers us it in reference to gold and silver, despite the fact that all are mal. Ibn al 'Athir says the original meaning of the word mal refers to owned gold and silver, and was then generalized to include all material things that are obtained and owned.

Jurists express several opinions on the meaning of the word mal in Shari'ah. Hanafite jurists say mal is everything that a person acquires and usually uses, so there are two conditions for anything to be mal: The possibility of acquiring it, and the possibility of using it in general. Consequently mal includes all that is owned--land, animals, furniture, equipment, and money. As for things that are not actually acquired or usually used, if there exists a possibility of obtaining and using them, then they are considered mal, such as lawful things like fish in the sea, birds flying in the sky or wild usable animals in the wilderness. Things that cannot be acquired are not considered mal even though they may be useful, such as sunlight and heat. By the same token, things that are usually not usable but can be obtained, such as a handful of soil, a drop of water, one bee, or one grain of rice are not mal. This definition implies that mal must be a material thing, because non-material things cannot be obtained. Consequently, services are not mal, such as inhabiting a house, riding car, or wearing a garment, because these are not acquirable. Similarly, rights , like custodianship and guardianship rights are also not mal.

Shafi'ite, Malikite, and Hanbalite jurists consider services as mal. According the them the possibility of acquisition is not a condition; rather, the condition is the possibility of obtaining the source of mal. Since the car can be acquired physically, its utility is considered a mal. Scholars of man-made laws consider both utilities and rights such as authorship rights and patents as amwal. This means that mal in human-made laws includes more than what it includes for the jurists.10 My opinion is that the definition of the Hanafites seems to be closer to the linguistic meaning given in dictionaries, and more sensible to the application of the texts on zakah, since it is material assets and not services that can be zakatable. zakah cannot be collected from utilities and distributed to the deserving categories. Ibn Nujaim in his al Bahr states that mal is what can be obtained and saved to be used at the time of need, and this can only be applied to material things, excluding utilities. The author of Kashf al Kabir says zakah can only be fulfilled by giving the recipient a material thing that has value, so if a poor person was allowed to inhabit free of charge the house of a zakah payer, this would not fulfill the responsibility of the payment of zakah, since this utility is not a material thing that can be acquired. Ibn Nujaim continues, "This is one opinion. The other is, however, that the utility is also a mal. But when the word mal is used, without any specification, it applies to material acquisitions only."11 For the purpose of this book, mal means material things, and that is where zakah applies.

If we agree that all obtainable and owned materials are mal, is zakah required on all kinds of mal, no matter how little it may be or how much the owner is in need of it? A house inhabited by the owner is a mal, as are clothes worn and books used and tools of professionals who work with their hands. Is zakah required on all these ? Is a bedouin who owns only two she-camels or a few sheep, from which he derives his essential food, zakatable. How about a peasant whose crop is only a small quantity that can barely satisfy the food needs for his household, or a businessman who has inventory and cash funds, but at the same time is overridden by debts that are in excess of his business assets? Are all these zakatable? Justice in Islam and easiness in Shari'ah would not allow such people to be burdened by what brings great difficulty and uneasiness into their lives. Consequently, it is important to define the conditions of zakatable assets as in the following sections:

All mal in the ultimate analysis belongs to God. He is the creator of it, He is the one who gives it for human sustenance. Qur'an repeatedly refers to this final reality, either by attributing mal to God, such as in "And give them out of the wealth of God that He has given,"12 and "0 ye who believe, spend out of the bounty We have provided for you"13 and refers to "those who covetuously withhold of the gifts which God has given them of His grace."l4 Qur'an also refers to humans as only vicegerents or agents with regard to the wealth they own, such as in the verse, "And spend out of the sustenance whereof He has made you vicegerent."15 God, although He is the true owner, honors His servants with the privilage of authority over the bounties He bestows on them, and holds them responsible and accountable for what they control. It is like when a father gives his child some of his property in order to make the child experience his or her independence and test him or her with that. It is no surprise, therefore, that Qur'an mentions wealth (amwal) as attributed to people: "0 ye who believe, let not your riches. .

. ."16 "Your riches and your children are only a trial,"17 "thinking that his wealth would make him last forever,"18 "No profit to him from all his wealth and all his gains,"19 "And in their wealth there is a right of the needy, he who asks, and he who is deprived,"20

"Out of their wealth take sadaqah,"21 "Let not their wealth nor their sons dazzle thee,"22

and "Then release their wealth to them,"23 "Eat not up your wealth among yourselves in vanities,"24 etc.

God highly honors humans by sometimes using the phrase "borrowing from people " those assets, although they are in fact bestowed by God upon His servants. God says, "Who is he that will loan to God a beautiful loan which God will double unto his credit and multiply many times,"25 "Who is he that will loan to God a beautiful loan, for God will increase manyfold his credit and he will have a liberal reward,"26 "And loan to God a beautiful loan,"27. "God hath purchased of the believers their persons and their wealth, for theirs in return is the Garden."28 Al Hasan comments that here God "buys" persons that he created and wealth that he bestowed.

Ahmad bin 'Abd al Rahim al Dahlawi, the philosopher of Islam in India, comments on the verses that attribute ownership to human beings, "When God made it permissible for people to use what He created for them in and on the earth, people got greedy about things, so there was a need to establish a rule based on the priorities of acquiring things.

So all land is for all human beings, but those who come first are served first.

Consequently, the human ownership of these created things depends on the priority of extracting utilities and usefullness."29

However, it should be pointed out that by titling this section "undivided and absolute right of ownership" I do not mean the ultimate ownership which belongs to God alone.

What is meant here is the right of control of assets and material things as attributed to humans in the above-mentioned verses.

Private ownership is a great bounty from God. It is one of the fruits of freedom and of humanity itself. Animals do not own; humans do. Ownership gives the feeling of authority and power and satisfies the acquisitive desire. Complete ownership enables people to extract benefits of owned materials, as well as putting assets to growth. The grace from God should be recognized by people. The payment of zakah is an expression of thankfulness to God and recognition of his bounty.

This condition is justified by two major points. Firstly, the fact that assets and wealth are attributed to people in Qur'an and Sunnah implies that zakatable individuals must have owned these assets. This general form of ownership requires owning in an exclusive manner. Secondly, the performance of zakah requires that the recipients such as the poor and destitute, should become owners of what is given them. They cannot be made owners if the zakah payers do not have complete right of ownership on what they are paying.

This condition Implies that assets that do not have a specific person as owner should be unzakatable, such as the state's revenue collected from taxes, zakah, and other sources. These are not zakatable because they are not owned by a person and the right to them belongs to the whole society, including the poor and needy. Additionally, the government is the agency that collects zakah and there is no reason that it should collect from itself. Scholars have said, "There should be no zakah on state resources like fai' [taken from enemies without fighting] or on the government's share of ghanimah [gained as a result of lawful war with enemies] because these revenues belong to all Muslims and are spent for their benefits."36 In general, all publicly owned property is not zakatable.

Property put in public trust for, say, the poor, mosques, orphans, schools, fighters for the sake of God, etc., are not zakatable. On the other hand, property of private trusts that are withheld for the benefit of an individual or a group of beneficiaries, such as children's trusts, are zakatable, since the right of private ownership is transferred on these properties to the benefit of the children, although they cannot, for some time, dispose of the property themselves.37 This is more similar to privately owned things than to public trusts, since the most important element of private ownership is the exclusivity of benefit of the property and this feature exists in private trusts. Some jurists, however, consider zakah obligated on all trusts, public and private. Ibn Rushd says, "it seems that imposing zakah on public trusts designated for the benefit of the indigent is meaningless, for two reasons. One, their ownership is incomplete, and two, they are not zakatable but rather recipients of zakah."38

This condition excludes from zakatability wealth acquired by unlawful means, such as theft, counterfeiting, bribery, interest, monopoly or cheating. This may include the most part of the wealth of autocratic rulers, interest financiers, thieves, etc. Such individuals do not indeed own the stolen properties which are in their hands, although they might have mixed them with property obtained by lawful means. Scholars declare that evil wealth is not zakatable because all such wealth must be returned to its true owner if known, or to his or her heirs, and if not, then to the poor and needy. It is not sufficient that only a small part of such assets is given out as zakah.39 The authentic saying speaks for itself: "God does not accept sadaqah from stolen property."40

Jurists justify the unzakatable of such wealth by the fact that it is not owned by those who have actual control. Therefore, the latter has no authority to pay zakah or to make any other disposal except rendering it to the lawful owner.41 Thus a person whose methods of gain are unlawful is not considered rich in Shari'ah even though ha might control huge wealth. Some Hanafite jurists, including al Sarakhsi, go to the extent of permitting giving charity to dictators on the grounds that they are in fact poor, although they unlawfully dispose of the riches of the whole country.42 Such bold opinions mean to us that unlawfully acquired wealth cannot be owned or transferred to heirs or any other recipient.43 On the other hand, giving charity, per se, to such oppressors is not acceptable because, although they are legally poor, they use their holdings to oppress people and for other evil purposes. The rule is that even a poor person should not be given zakah if it is known that he uses such income for disobedience of God.44

Another implication, of this condition relates to zakah on debts. Who should pay such zakah, the creditor, the debtor, or both? None of the jurists would say both.

'Ikramh and 'Ata are reported to be of the opinion that both are not zakatable, on the basis that the debtor does not own it while the creditor does not have control of it.45 Ibn Hazm reports from 'Aishah, the Mother of the Faithful, "There should be no zakah on debts," This means that both parties are not zakatable. Ibn Hazm and his Zahiri colleagues support this opinion on the grounds that the right of ownership of each of the debtor and the creditor is incomplete. The debtor does not own borrowed property although he makes use of it, while the creditor does not have control over the debt and does not extract benefit from it. The author of al Amwal attributes to al Nakha'i that "unreasonably delayed debts are zakatable by debtors."46 This opinion is a violation of the condition of completeness of ownership which is almost unanimous among all jurists.

The majority of jurists since the era of the Companions distinguishes between two kinds of debts. One is a debt whose creditors hope to receive it back, meaning debts on parties who are capable of payment. zakah is obligated on this category of debts yearly, as if they were property under control. Abu 'Ubaid reports this opinion from the Companions 'Umar, 'Uthman, Ibn 'Umar, and Jabir, and from the Followers Jabir bin Zaid, Mujahid, Ibrahim, and Maymun bin Mahran.47 Second, doubtful or dead debts, which are debts on individuals who are incapable of repayment or are denied by debtors, There are three views about zakah on these debts, (a) the creditor must pay zakah for all past years upon receiving the debt back if ever. This is the opinion of the Companions 'Ali and Ibn 'Abbas, (b) the creditor, on receipt of the debt must pay zakah for only the last year. This is the view of al Hasan, and 'Umar bin 'Abd al 'Aziz. It is also the view of Malik on all debts,48 and (c) the creditor does not owe any zakah whatsoever and the debt when paid back starts a new year of zakatability, which is the view of Abu Hanifah and his two disciples.49 Abu 'Ubaid selects the opinion that if the creditor hopes to got back the debt, it should be zakated as if the debt was part of the current assets, in accordance with 'Umar, 'Uthman, Jabir, and Ibn 'Umar. However, Abu 'Ubaid cautiously allows deferring the payment of zakah until the receipt of the amount of the debt, provided that zakah is paid strictly for all preceeding years. As for doubtful and dead debts, Abu 'Ubaid selects the opinion of 'Ali and Ibn 'Abbas, payment of zakah by the creditor for all past years upon receiving the amount of the debt back. He argues that since the right of ownership on the debt is not annuled by the doubtfulness, then the right of God should also remain.50 I agree with Abu 'Ubaid on the first case, but I differ with him on the case of doubtful and dead debts, because the right of ownership on such debts is not complete, since the creditor has no hope of extracting benefit and of disposing of the debt.51 This is also the argument of Abu Hanifah and his two disciples.

A common question arises at this time about the retirement savings and grants that are retained by governments, employers, or any independent agency without giving the employee direct access to the fund, except upon retirement or termination of employment. The zakatability of such funds is determined by whether they can be defined as completely owned by the employees. Can they dispose of them at will or not?

Are these funds the right of the employees or mere grants whose amounts and eligibility requirements will be determined at the time of retirement? If they are purely grants or gifts, they accrue only to the employee at the time of receipt. But if they are part of what the employee has access to and may dispose of at will, then they should be treated like debts whose debtors are capable and ready to pay, i.e. they are zakatable every year, once they reach the minimum for zakatability, as will be discussed later.53

The second condition for zakatability is that wealth must either be actually growing or have the potential for growth. Growth means something that provides the owner with profit and benefit. Or the asset itself should be the result of growth, being surplus or a newly accrued item. "This has been established by Muslim jurists in a clear and specific manner. Linguistically, "growth" is any surplus. In Shari'ah, growth has two meanings, actual and potential growth. Actual growth is the increase by Genetic or business reasons. Potential growth is when the asset can increase if it is used properly for that purpose. This implies the availability of the asset for potential use.54

Ibn al Humam writes, "zakah is legislated to help and relieve the poor without impoverishing the rich, by having the rich pay from their surplus, taking a little from the plenty. Imposing zakah on wealth that does not, be definition, grow, reverses this purpose, since zakah is paid year after year, in addition to living expenses."55 This condition of growth applies the saying of the Messenger of God (p) "Wealth never decreases as a result of sadaqah,"56 since the payment of a small fraction as zakah out of growing wealth does not make the wealth decline. What is important, however, is the growth potential of the assets and not actual growth, because actual growth can hardly be measured and is subject to differences in measurement.

According to the author of al Mughni, it is mentioned in al Bada'i' that "the very naming of zakah--as growth or increase--is not realized except in growing assets. It is not necessary, however, for wealth to actually grow, but the ability to grow through business, animal breeding, or seed planting, is sufficient, since growth by reproduction, profit, and multiplicity is realized by those means. The possibility of using the means is alone sufficient. This is similar to traveling, which allows the traveler to reduce prayer even if he can pray without hardship."57 On the other hand, the asset itself may be a result of growth, as in crops and fruits. In this case, zakah is only obligated after growth has happened.

This condition is derived from the spoken and practiced tradition of the Prophet (p), which was sustained in application by his successors and Companions. The Prophet (p)

does not obligate zakah on assets which are obtained for personal use, as indicated by the correct saying, "A Muslim is not zakatable for his [or her] mare or for his [or her] servant."58 Al Nawawi' says, "This saying plants the seed for the principle that assets obtained for personal use are not zakatable." The Prophet did not impose zakah except on growing and producing assets, of which Arabs at his time had several kinds:

- Livestock such as camels, cows, and sheep - money, gold or silver used as cash business assets and as savings - crops and fruits, especially basic foods, such as wheat, barley, date, and raisin. Honey goes with this category.

- treasures hidden underground by ancients and minerals stored by ancients and minerals stored by God inside and on the surface of the earth.

About the dispersement of the proceeds of dues on this last category, there are two opinions. One is that it should be treated like zakah, and the other is that it should be treated like fai [property taken from enemies who surrender without fighting].

Jurists who believe that rulings of Shari'ah are always justifiable-- and they are the majority-- have agreed that the justification for zakatability on the above mentioned assets is actual or potential growth. Livestock physically grows by weight increase, reproduction and milk production. Business assets also grow; they are there to make profit and bring return. This growth is not simply natural like that of animal and agricultural wealth, but is caused by the action of people. Since it is considered lawful in Islam as well as in all heavenly and earthly religions and laws, business growth is put in the same category as natural growth. Money also grows, because it is the means of exchange and the measure of value as a substitute of goods. When money is used in industry and trade, it brings income, which is what is meant by growth in this section. If money is hoarded and prevented from fulfilling its role in circulation and production, the hoarder is held responsible for leaving it idle. He is not by that action exempt from zakah, but rather, zakah gives him the signal to utilize his money in growth and useful business, otherwise it will perish. Crops and fruits are themselves the result of growth, being produced by the process of agricultural reproduction. Honey, discovered treasures, and minerals are similar.

This condition is founded by jurists on the basis of the guidance of the Messenger of God and the practice of the Wise Successors. It is also consistent with the meaning of zakah itself, since one of the meanings of the word "zakah" is growth. What is being paid as zakah is given this name because it brings blessing and growth, in accordance with the promise of God "and nothing do ye spend in the least in His cause but He replaces it,"59 and "that which ye lay out for zakah seeking the countenance of God, will increase. It is these who will get a recompense multiplied.''60 Giving the name zakah for what is paid in fulfillment of the requirement of zakah may have yet another meaning, according to some scholars. That is, the amount paid is called zakah because it comes out of surplus or excess that is the result of the process of growth,. Consequently, zakah is obligated on growing assets, and not on assets held for personal and family use.61 In application of this condition, Muslims since the early stages exempted animals used for personal transportation, homes inhabited by the owner, tools of professionals, and household furniture from zakah. Also exempted are assets that cannot be made to grow, such as assets unlawfully controlled by others.62

Since growth, actual or potential, is a requirement for zakatability, what should be the status of wealth whose owner does not make it grow?

A distinction must be drawn between two cases of idleness from growth of an asset:

idleness implied by the nature of the asset such as hopeless debts and stolen property, and idleness caused by the owner. In the former case, the asset is not zakatable, but once the owner becomes able again to make it grow, such as lost/found treasure, then the asset is zakatable only from that year on. On the other hand, if the incapability of investment is caused by the owner, i.e. if the owner withholds his wealth from investment, then he is not excused from the yearly payment of zakah. It is assumed that Muslims would do their best to invest their assets.

Incapability to make one's assets grow is not an excuse for exemption from zakah.66

Inability to invest is rather blameable because it indicates lack of will or means on the part of the owner. Against this kind of incapability, the Prophet (p) strongly warned and he reprimanded those who have it. He used to pray, "My Lord, I seek your protection from incapability and laziness."67 Abu Hurairah narrates from the Prophet, "Be keen to hold to what benefits you, seek the help of God, and do not stay incapable or stand still,"68 and the Prophet once told a man, "God verily reprimands for incapability."69

This condition of growth for zakatability can be used as a criterion for determining kinds of wealth that are subject to zakah, even if they were not specifically mentioned by the Prophet (p), as long as they are covered by the general texts of Qur'an and Sunnah. This is not accepted by some jurists who restrict zakah to those items mentioned by the Prophet (p). Ibn Hazm, for example, restricts zakah in his al Muhalla to eight kinds of wealth: camels, cows, sheep, wheat, barley, date, gold, and silver.70 For him even raisin is not zakatable, nor is livestock other than camels, cows, and sheep.

The same applies to agricultural crops except wheat, barley, and date, and to minerals and currencies except gold and silver. Moreover, according to him, there should be no zakah on business assets. Jurists differ on the extent to which zakah is obligated as far as the different kinds of wealth are concerned. While some are very restrictive, others are liberal. Abu Hanifah is one of those who extend zakatability to most kinds. For example he considers zakatable all that is produced by the land, without any minimum; he includes horses with livestock in zakatability; he obligates zakah on jewelry. On the other hand, zakah in his view is not required from all minors and insane individuals, nor does he require the tenth on the output of kharaji land owned by Muslims.

The theory of Ibn Hazm, and those who restrict zakatability along with him, such as Shawkani and Siddiq Hasan Khan, is based on two principles: That a Muslim's wealth is protected and must not be taken, so nothing must be imposed on it without virtue of a text; and that zakah is a religious obligation. Thus, in order to prevent anyone from incorporating in religion anything that God does not ordain, it is necessary that people must not be obligated without a text. Analogy should especially not be used in the area of zakah.

My theorem is exactly opposite. It is based on other equally important principles in Shari'ah:

1. The general texts of Qur'an and Sunnah confirm that there is a right, a sadaqah, or a zakah, on all wealth. The verse, "and those on whose wealth there is a recognized defined due," and "Out of their wealth take sadaqah," and the saying of the Prophet "Inform them that God prescribed on them in their wealth a sadaqah, taken from the rich among them to be rendered to the poor among them," and "Pay the zakah on your wealth." These texts do not distinguish between kinds of wealth. We know that the word 'amwal" in Sunnah means growing assets and not those things designated for personal use. It is not allowed to exclude some kinds of wealth from this zakah or sadaqah without clear evidence. Alas, there is no such evidence.

2. Each rich person is in need of purification and sanctification--sanctification through giving for the sake of God and purification from miserliness, selfishness, and overwhelming desire for money. God says, "Out of their wealth take sadaqah, so thou mightest purify and sanctify them." It is unreasonable to think that peasants who own wheat and barley should be purified and sanctified while owners of large orchards or landlords of luxurious high-rises or owners of factories are not in need of that purification and sanctification. The return on the latter's property is manifold that on wheat and barley.

1. Ahmad, in his Musnad reports from Abu Hurairah that the Prophet (p) said, "Sadaqah is only taken out of richness," and in another version, "There should be no sadaqah taken except out of richness."80 Al Bukhari mentions this saying as suspended [waithout chain] in the chapter on advice and wills in his correct collection. He makes it a title of a section in the chapter on zakah, "Section: There is no sadaqah except out of richness; he who gives sadaqah while he or his family are in need or while he is under the burden of debts should first pay his debts out of what he would give as sadaqah." Al Hafiz comments on Bukhari's title, "It seems that al Bukhari wants to explain the above mentioned saying by stating that it is a required condition for sadaqah that the payer or his family must not be in need."81 There is no doubt that zakah is sadaqah as expressed in Qur'an and Sunnah.

2. In the Qur'an, God says, ''They ask thee what they are to spend. Say, what is beyond your needs."82 Ibn 'Abbas is reported to have said, "This means what is in excess of yours family's need."83 Ibn Kathir says "This is also reported from Ibn 'Umar, Mujahid, 'Ata'" , 'Ikrimah, Sa'id bin Jubair, Muhammad bin Ka'b, 'Ata', al Hasan, Qatadah, al Qasim, Salem, 'Ata' al Khurasani, al Rabi' bin Rabi' bin Anas, and several others. They say, what is beyond the need is what is in excess."84 This means God, His wisdom be glorified, makes subject to spending only what is in excess of basic needs, i.e., the needs of the person, his family, and all those he is required to support. The needs of the person and his family have priority, for himself, over the needs of other people, so Shari'ah does not ask him to sacrifice his own needs to which his heart is attached in order to satisfy other people's needs. Al Hasan is reported to have commented on the preceding verse, "That is so as not to extinguish your wealth so you go begging people."85

3. Ibn Kathin says that this condition is also supported by what is reported by Ibn Jarir, narrated through his chain to Abu Hurairah, "A man said, 'O Messenger of God, I have one dinar.' The Messenger said, Spend it on yourself.' The man said, 'I have another one.' The Messenger replied, 'Spend it on your wife,' whereupon the man said, 'I have a third one.' Spend it on your children,' the Messenger said. The man then said, 'I have a fourth,' and the Messenger answered, 'you know [your needs] better.'" This saying is also reported by Muslin in his correct collection. It indicates that the needs of the person, his wife, and his children have priority over the needs of others. Muslim reports also from Jabir, "The Messenger of God (p) said to a man, 'Start with Your self, give it charity. If anything is left, give it to your family, If anything is left after your family, give to your relatives, and if anything is left after your relatives, then give this way and that way." Some of those sayings are about charity and not obligated one, but in all cases they indicate the intention of Shari'ah on spending, which is that all spending, voluntary and obligatory, should come out of the surplus. The surplus, as understood by the majority of scholars, and as defined by Ibn Kathir, is the excess after satisfying needs.

That nisab should be free of debt is in fact an implication of the first condition, i.e.

completeness of ownership, and of the excess above essential needs. If the owner is burdened by debts that exceed nisab or that reduce the assets net worth to below nisab, zakah is not obligated. Jurists have varying opinions on debts, especially those debts that are related to apparent assets [ assets that can be detected by zakah collectors]. The reason for this variety of opinion is that they do not agree on the classification of zakah as mentioned by Ibn Rushd as a worship or a financial right due to the poor. Those who see zakah as a right to the poor consider that the person who is burdened by debts in a manner that reduces his current assets to below nisab is not zakatable, since the right of the creditors preceds timewise the right of the poor, because the creditors are the true owners of that asset. Those who see zakah as a form of worship say that such a person is zakatable, because the condition for zakatability is the presence of assets above nisab; no mention of debts is made. They add that there is in this case a conflict between two rights, the right of God and the right of a person, the creditor, and the right of God has priority.86 Ibn Rushd remarks, ''What seems to be more consistent with Shari'ah is waiving zakah on the debtor."87 It should be added, however, that what is selected by Ibn Rusad is what can be derived from texts of Shari'ah, its spirit, and its major principles concerning all kinds of assets. This can be shown in the following:

Firstly, the ownership of the debtor is in fact weak and incomplete, because of the authority the creditor has on his due debts in asking for payment, to the extent that the creditor may take back the lent asset if it is still in the debtor's hands, even without the consent of the debtor, according to the Hanafite school and others.88 The first condition for zakah is that the right of ownership should be complete.

Secondly, the creditor is required to pay zakah for the loan, being the real owner, according to the majority of scholars. If the debtors is also asked to pay zakah on that same debt, then there will be a double zakah on the same asset. This duality is prohibited by Shari'ah.89

Thirdly, a person who is overwhelmed by debts that exceed what he owns, or at least reduces it to below nisab, can be a recipient of zakah on the grounds of being poor or of being overwhelmed by debts. How could he be a zakah payer and a zakah recipient at the same time?! Fourthly, zakah is only legitimately taken out of richness, as mentioned in the sayings. The debtor who needs to pay back his debts is not rich. Moreover, he is under stress caused by the debt.

Fifthly, zakah is legislated to relieve those who are in need. The overwhelmed debtor is in need of paying his debts. He is like the poor. It is not rational to leave the needs of the debtor unsatisfied in order to provide for the needs of others,90 knowing that the Messenger (p) said, "Start with yourself, then with whom you are responsible for." Sixthly, Abu 'Ubaid reports from al Sa'ib bin Yazid, "I heard 'Uthman bin 'Affan saying, 'This is the month of your zakah; you who are under debt should pay back your debts, so you can start paying zakah on your assets."91 In another version reported by Malik, "He who is under debt should pay back his debt and then pay zakah on the rest of his assets."92 A version is reported by al Baihaqi from al Sa'ib, who heard 'Uthman bin 'Affan giving this speech from above the minbar [The podium of the speaker in Friday prayer] of the Messenger of God (p). 'Uthman said, "This is the month of your zakah . .

For debts to waive zakah completely, the amount of the debt should be large enough to cover all present assets, or at least bring them down to below nisab. For example, if the amount of debt is ten dinars and the taxable person has thirty dinars, then what is left after the debt is still nisab, which is zakatable. But if the amount of debt is more than ten dinars, then this person is not zakatable.101

For deferred or immediate debts that are due in either a long or short period it seems that this makes no difference in its effect on zakah. The selected view is that all debts, immediate and deferred are deductible from zakatable asset. Some scholars, however, hold to the view that deferred debts are not deductible.102 One of the common deferred debts could be part of the wife's mahr [dowry given by the husband] that is deferred until death or divorce. Some scholars argue that this deferred mahr is not deductible, while others consider it deductible like other debts.103 All money for an ex-wife or for children in the custody of their mother are deductible debts. There is a discussion also about debts that belong to human beings. A1 Nawawi, a Shafi'ite, says if debts are deductible, then, this applies to all debts, whether they are God's or a person's.105

Hanafites say only debts to people are deductible because people seek payment and are protected by the judicial system. Debts to God, such as pledges and kafarat [recompense for a break in some religious obligation such as fasting] are not deductible. It should be noted, however, that past due zakah is considered like debts to other people. It is deductible because the state is authorized to collect it on behalf of the recipients.106

The view of the Hanafites is also my choice on this issue; if the Islamic state takes the responsibility of collecting zakah this rule shuts the door on false claims of pledge to God and kaffarat made in order to reduce the amount of zakah, since there are no accessible means of verifying those pledges and kaffarat. If the state does not collect zakah and individual Muslims pay zakah or their own and make their own calculations, those debts to God can be deductible, because the texts are general, such as the saying, "but the debt to God deserves priority in payment."107

Twelve full lunar months should pass from the beginning of ownership, or past due date of zakah, for zakah to accrue again on assets. "This condition is restricted to livestock,, money, and business assets. It does not apply to crops, fruits, honey, extracted minerals, found treasure, etc., where there is no condition of one year on the grounds that zakah on those items is a sort of zakah on income.

Ibn Qudamah expresses his opinion on the essence of distinction between zakatable items as far as the passage of a year is concerned. "Items for which the passage of a year is considered necessary are those designated for growth, such as business assets, or as storage of value, such as money, because it is of the nature of being used for growth, so that zakah would be paid at the end of each year out of their profits and income. As for crops and fruits, they themselves are the income, and zakah is taken out of them. Once they are produced they obviously do not grow. Extracted minerals are considered similar to plants and fruits."108

Ibn Rushd states,109 "The majority of jurists believes that this condition is required for the zakatability of gold, silver, and livestock. It is confirmed that the four Khulafa' applied this condition, and it is commonly known among the Companions, which means that all these people would not agree on such a mater without knowing that the Prophet had said something about it. It is reported from Ibn 'Umar that the Prophet (p)

said, "There is no zakah on an asset until a year has passed."110 This is agreed upon among jurists in all countries, and there is no dispute about it in the Companions' generation except a report from Ibn 'Abbas and Mu'awiyah. It seems that the reason for that exemption is the lack of an authentic saying.111

Ibn Mas'ud, Ibn 'Abbas, and Mu'awiyah are reported to have the view that zakah is due on assets when acquired, without needing the passage of a year, if that earned asset reaches nisab on its own or after being added to what was in possession before its accrual.112 Some of the Followers also take this view.

There is no disagreement among scholars, both predecessors and latecomers, that zakah on capital assets such as livestock, money, and business inventory, is required only once a year. Ibn Abi Shaibah reports from al Zuhri, "Nothing reached us from any ruler of this nation who was in Madinah-- Abu Bakr, 'Umar and 'Uthman-- to the effect that they were collecting zakah twice. They sent collectors every year, fertile or barren.

Collecting it this way in accordance with the tradition of the Messenger of God (p)."113

This shows the justice of Islamic Shari'ah. The periodicality of zakah is not left to rulers and governments to impose at will, or to the desire and miserliness of individuals.

The year is considered the pattern of repetition because it is the cycle of all season, and it is long enough for growth and profitability to accure114 Ibn al Qayim says about the guidance received from the Messenger (p) on zakah "He [the Prophet] obligated it once every year. He made the time of accrual of zakah on crops and fruits the time of ripening and harvest. zakah is an expression of the utmost justice, because had it been obligated every month or every week, it would have heavily burdened the rich, but if it were made once in a lifetime, it would not have satisfied the needs of the indigent. The best way was to make it once every year."115

Accrued assets or goods include regular income, periodical salaries and wages, grants, windfall profits, gifts, etc. Some of those accrued goods, such as crops, fruits, honey, found treasures and extracted minerals, are zakatable once acquired if they reach the amount of nisab. That much is not disputed. There is, however, a difference of opinion on the zakatability of capital assets, like money, business inventory, and livestock, that are acquired during the year. Are they zakatable at the time they are possessed? On this we should bring forth some details mentioned by Ibn Qudamah in al Mughni, which distinguish between three cases:

1. If acquired assets are the result of already owned capital, such as profit on business assets and the offspring of already owned livestock, they are zakatable. This income should be added to the original assets in calculating zakah. Ibn Qudamah says, "I am aware of no dispute on this. It goes by the year of its principal and is like continuous growth, such is the increase in the value of inventory."116

2. The second case is then the accrued asset as not of the same kind of capital a person already owns, such as a person who owns nisab of camels and is given a gift of cows. According to the majority of scholars, this acquired asset is not added to the capital he or she owns, but rather starts a new year and a new nisab of its own. If it is below nisab, the new asset is not zakatable. There is, however, a report from Ibn Mas'ud, Ibn 'Abbas, and Mu'awiyah that these are zakatable once they are earned.

Ahmad says it should be zakated upon receipt. Ahmad reports via his own chain from Ibn Mas'ud, that 'Abd Allah used to deduct zakah when he gave us the grants." Al Awza'i is reported as saying, about the case of a person who sells his home or slave, "He should pay zakah on the price once he receives the money, unless he has already established an accounting month for zakah payment; in which case he may delay payment until the last month of his accounting year.117 Supporting evidence for this opinion shall be presented later in the section on zakah on salaries.

3. The third case is if the acquired asset is the same kind as already-owned assets that have reached nisab, and have started the year of zakatability, but acquiring the new assets is completely independent of the already-owned assets. For example, someone owns forty sheep and during the year is given as a present another twenty. Those new sheep are not zakatable in that year, according to Aamad and al Shafi'i'. Abu Hanifah says it should be added to what he already owns and zakah is due on the total at the end of the zakah year, except in the case when this new asset is merely a substitution of an older one that is being zakated. Abu Hanifah argues that what is obligated should not be divided and there should be no different times for zakatability on different sections of the same kind of asset that is owned the same group. Because this creates accounting and collection difficulties, it should be avoided, in accordance with the verse, ". . . and has imposed no difficulties on you in your religion."113 Shari'ah always considers the removal of difficulties, such as in the case of taking one sheep on each five camels because a camel is indivisible. Also adding profits to original capital, in zakatability, is of that same easiness. Malik agrees with Abu Hanifah in the case of pastured livestock, while in money he tends to agree with Ahmad and al Shafi'i' because according to him, the above mentioned difficulty does not arise.119 The author of al Mughni argues against the Hanfi point of view, but it seems that the latter is definitely simpler in application and much less complicated and for that reason I tend to agree with it.