让我们现在仔细看看伊斯兰教为借贷所确立的原则:"信士们啊!当你们彼此约定一个定期的债务时,你们应当把它写下来,让一个书记员公正地为你们书写。"(第282节)
Let us now take a closer look at the principles that Islam establishes with respect to loans: “Believers, when you contract a debt for a fixed term, put it in writing, and let a scribe write it down for you with fairness.” (Verse 282)
因此,一般原则是:所有定期借贷的细节都必须以书面形式记录,其原因稍后将会阐明;并且为确保绝对公正和公平,记录应由第三方完成。书写者必须忠实地记录借贷约定的条款,不得有任何干涉、偏袒或成见。
The general rule, therefore, is that details of all fixed-term loans must be in writing, for reasons that will become clear later, and that a third party must do the recording in order to ensure total impartiality and fairness. The writer is required to record the agreed terms of the loan faithfully, without interference, bias or prejudice.
他有义务以完整且称职的方式履行其职责,这既是对给予他书写能力的真主的责任,他也将因此获得相应的回报:“书记人不可拒绝照真主所教导他的写字,他就该写。”(第282节)
He is obliged to do his job fully and competently as a duty to God who has blessed him with the ability to write, and for which he will be appropriately rewarded: “No scribe shall refuse to write as God has taught him. So he shall write.” (Verse 282)
在确立了贷款条款应由独立的文书人员书面记录之后,这章经文接着说明书写应如何进行:“……让负债的人口授,让他敬畏他的主,不可减少其中的任何内容。如果负债的人心智或身体弱,或者无法自己口授,那么就让他的监护人公正地口授。”(第282节)
Having established that the terms of loans should be committed to writing by an independent document writer, the sūrah goes on to explain how the writing should be carried out: “... and let the one who incurs the liability i.e. the debtor] dictate; and [in so doing] let him be conscious of God his Lord and not diminish anything of it. If he who incurs the liability is weak of mind or body, or unable to dictate himself, then let his guardian dictate with fairness.” (Verse 282)
承担债务责任的一方,即借款人,应当口述给书写人,确认所借的金额以及他对贷款条款和条件的承诺,以防止对他造成任何不公正。作为交易中处于弱势的一方,他更不容易篡改条款和条件。
The party incurring the liability, the borrower, is the one to dictate to the writer, acknowledging the amount borrowed and his commitment to the terms and conditions of the loan, as a safeguard against any injustice to him. As the weaker party to the transaction, he would be less liable to alter the terms and conditions.
这将加强借方对债务的承诺。因为,如果由债权人口述,就无法保证他不会在贷款条款上做手脚以谋取自身利益。此外,该章经文还诉诸借方的良心,要求他在口述贷款条款时谨慎诚实、忠实可靠。经文接着指出,如果借方心智不健全、未成年,或因无知、言语障碍或其他原因而无法口述,则可由其监护人、代理人或受托人代为口述,并且应当表现出同样甚至更加严格的公正态度。
This would reinforce the borrower’s commitment to the liability. For, were the creditor to dictate, there would be no guarantee that he might not tamper with the terms and conditions of the loan to his advantage. Furthermore, the sūrah appeals to the borrower’s conscience to be scrupulous and faithful in dictating the terms of the loan. It goes on to advise that if the borrower is feeble-minded, under age, or unable to dictate through ignorance or an impediment of speech, or any other reason, his guardian, attorney or trustee, may do so on his behalf, showing the same, if not greater, scrupulous fairness.
该章对见证契约的事宜作了详细的规定:
The sūrah gives detailed instructions concerning the witnessing of the contract:
“你们当从你们的男子中找两名见证人;如果没有两名男子,就找一名男子和两名你们认可的女子作见证,以便其中一人如有遗忘,另一人可以提醒她。”(第282节)
“Call in two of your men to act as witnesses, but if two men are not available, then a man and two women, whom you consider acceptable as witnesses, so that if either of them should make a mistake, the other will remind her.” (Verse 282)
为使合同有效,须有两名男性见证人在场;如果找不到两名男性,则由一名男性和两名女性作见证。所有见证人都应在社区中德高望重,并且双方都认可其“可作见证人”的资格。之所以首先推荐男性作见证人,是因为在穆斯林社会中,市场上的从业者通常以男性为多,因为妇女一般不必外出谋生,她们的主要关注点是家庭和培养社会的新一代。尽管如此,如果找不到两名男性来见证合同,那么一名男性和两名女性也可以。那么,为什么要两名女性呢?
For the contract to be valid, it must be witnessed by two men or, if these are not readily available, one man and two women, all of whom should be of good standing in the community and deemed “acceptable as witnesses” by both parties. The reason for recommending men witnesses in the first instance is that, in a Muslim society, the majority of marketplace attendants are normally men, since women, generally, do not have to seek work to earn a living and their main preoccupation is the family home and the raising of society’s new generation. Nevertheless, if two men cannot be found to witness a contract, a man and two women will do. But why two women?
由于这是法律事务,该章经文并未将答案留给猜测;经文解释道:“……若其中一人忘记了,另一人可以提醒她。”(第282节)
Since this is a legal matter, the sūrah does not leave the answer to speculation; and explains: “... so that if either of them should make a mistake, the other will remind her.” (Verse 282)
这样的错误可能由多种原因造成,例如缺乏经验或知识,或未能理解所涉事项或合同的后果。女性冲动的天性使她们容易受影响,更容易被左右或动摇。这种情感丰富、富有同情心的天性对女性作为母亲的角色是必要的,实际上也是有益的。人性是不可分割的,因此每当女性被要求作证或裁断需要审慎思考、反复权衡和绝对公正的事务时,这种天性都会存在。两名女性而非一名,更能保证她们相互平衡,提供客观的证词。
Such a mistake may occur for a number of reasons, such as lack of experience or knowledge, or failure to understand the subject matter or the ramifications of the contract. A woman’s impulsive nature tends to make her impressionable and more easily influenced or swayed. This emotional, sympathetic nature is necessary and, indeed, advantageous for women in their role as mothers. Human nature being indivisible, it would be present whenever women are called upon to witness or judge anything requiring deliberation, reflection and strict impartiality. Having two women rather than one, provides a greater assurance that they will balance each other and provide an objective testimony.
该章呼吁人们在被邀请作证时不要推辞,正如前文对作者所做的那样,经文说:"证人被召唤时,不得推辞。"(第282节)这是一项义务,而非一种特权,因为它是确立公正、维护权利的手段。证人必须心甘情愿、诚实地履行其职责,不得因任何一方而有所偏袒或迁就。
The sūrah calls on people not to refuse to act as witnesses if invited to do so, as it did with the writer earlier, saying: “Witnesses must not refuse when they are called in.” (Verse 282) It is an obligation, rather than a privilege, because it is a means of establishing justice and preserving rights. Witnesses must carry out their duty willingly, honestly and without any condescension or deference towards either of the parties.
该章接着讨论法律与商业交易中另一个更为普遍的方面:"无论债务是小是大,都不要厌烦将其连同到期时间一并写下来;这在真主看来更加公正,更有利于作证,也更能使你们免于怀疑。"(第282节)
Note: the translation renders "God" as 真主 (the standard Chinese term for God); the verse is in quotation marks, so it is not wrapped in braces and no ﷺ is required here.
The sūrah moves on to another, more general, aspect of legal and business transactions: “Do not be averse to writing down debts, be they small or great, together with the time when they fall due; that is more equitable in the sight of God and lends greater credence to the testimony and is more likely to spare you any doubt.” (Verse 282)
该段文字展现了对人性的卓越洞察:人们往往倾向于认为某些小额债务交易不值得记录下来,但这一章经文强调,将所有债务交易记录在案,在真主看来更为可取,也更为公正。书面契约能够增强见证人证词的效力,因为书面陈述比完全依赖记忆的陈述更具分量,并且它"更能使你们免于怀疑"。由此,这些指示背后的智慧便清晰可见,显得更加令人信服、切实可行,也更让人安心。
The text displays a remarkable perception of human nature, as people are often inclined to judge that certain small debt transactions are not worth writing down, but the sūrah stresses the fact that recording all debt transactions is seen by God as preferable and more fair. A written contract gives greater force to the testimony of the witnesses, since a written statement carries more weight than one based totally on memory, and it “is more likely to spare you any doubt”. Thus, the wisdom underlying these instructions becomes clear and they appear more convincing, practical and reassuring.
在现货交易中,交易即时完成且频繁发生,无需将细节写下,仅有见证人在场便已足够:"若你们之间进行的是即时交易的商业往来,你们不将其写下,也无罪过。当你们做生意时,应当请人作证。"(第282节)
In spot trading, executed immediately and frequently, there is no need for writing dawn the details and the mere presence of witnesses will suffice: “In the case of a commercial deal transacted on the spot, you shall incur no sin by not writing it down. Have witnesses when you make business deals.” (Verse 282)
乍看之下,这一表述似乎允许在不记录即期交易的情况下作出让步,但前提是必须有见证人在场;然而,据一些经过审慎考量的观点,有见证人在场只是强烈推荐,而非必须履行的义务。
At face value, the statement seems to allow the concession of not recording spot transactions while making it a condition that witnesses should be present; but, according to some considered opinion, the latter is strongly recommended rather than obligatory.
然而,较为有力的观点是,现货交易同样需要见证人。
Nevertheless, the weightier view is that witnesses are necessary for spot trading as well.
该章接着规定了契约书写人和见证人的权利,保障他们应得的保护:"书记和见证人不可受到伤害。你们若这样做,那便是你们的罪过。你们当敬畏真主,真主教导你们,真主是无所不知的。"(第282节)
The sūrah proceeds to specify the rights of contract writers and witnesses, assuring them of the protection they deserve: “But let no harm be suffered by scribe or witness; if you do [harm them], that is sinful on your part. Have fear of God, for it is God who teaches you. God has knowledge of all things.” (Verse 282)
书记员和见证人在履行其对真主的义务时,不应遭受伤害,任何对他们的不义行为都将是对真主律法的严重违背。这是必要的预防措施,因为书记员和见证人常常会得罪缔约双方中的一方或另一方,因此必须受到保护并获得安心,以便他们公正、诚实并绝对客观地履行其义务。
Scribes and witnesses should come to no harm in the course of fulfilling their obligations towards God, and any wrongdoing they may suffer would be a gross violation of God’s law. This is a necessary precaution, for scribes and witnesses often incur the displeasure of one or the other of the contracting parties and must, therefore, be protected and reassured so that they fulfil their obligations fairly, honestly and with absolute objectivity.
最后,这一章经文依照《古兰经》唤醒人类良知内在力量的方式,呼吁信士敬畏真主,并提醒他们:真主赐予他们知识与理解,是一种恩典与恩惠,使他们能够依照祂的旨意和引导处理自己的事务:"你们当敬畏真主,真主是教导你们的,真主是全知万物的。"(第282节)
Finally the sūrah, in keeping with the Qur’ānic way of igniting the inner powers of the human conscience, calls on believers to fear God and reminds them of His grace and favour in giving them knowledge and understanding, so that they may conduct their affairs in accordance with His will and guidance: “Have fear of God, for it is God who teaches you. God has knowledge of all things.” (Verse 282)
该章以借贷问题收尾,论及一种特殊情形:在旅途中借钱,而此时未必找得到书写文书的人。在这种情况下,为便利交易并确保还款,只要交付并接受一件有形物品作为借款的抵押,口头约定同样有效并具有约束力:"如果你们在旅途中而找不到书记,那么可以取质押物。如果你们彼此信任,那么受信任的人应当偿还所托付的,并敬畏他的主。"(第283节)
The sūrah rounds off the subject of loans by dealing with the special case of borrowing money while on a journey, when scribes may be difficult to find. Under these circumstances, to facilitate the transaction and ensure repayment of the loan, a verbal agreement is valid and binding provided a tangible article is given, and accepted, as security for the loan: “If you are on a journey and cannot find a scribe, pledges taken in hand [are sufficient]. If you trust one another, let him who is trusted fulfil his trust, and let him fear God, his Lord.” (Verse 283)
债权人和债务人都是受托人:前者受托保管抵押品,后者受托保管所借的钱款,二人都应履行其所受之托,敬畏真主——那位至高无上的主宰、统治者和审判者。
Both creditor and borrower are trustees: the former entrusted with the security and the latter with the money he has borrowed, and they are both called upon to fulfil their trust and fear God, the ultimate master and ruler and judge over all.
我们不赞同一些法学家提出的观点,即这一裁定取代了前一节经文中要求将借贷契约写成文字的规定。我们认为,书面记录是必不可少的,除非双方处于旅途之中,在这种情况下,应为借贷提供担保,双方都有义务履行各自口头约定的部分。
We do not subscribe to the view advanced by some jurists that this ruling supersedes the one given in the preceding verse which makes the writing down of loan agreements obligatory. We believe that written documentation is essential except when the two parties are on a journey, in which case security must be provided for the loan and both parties are under an obligation to fulfil their part of the verbal agreement.
鉴于上述所有原则,这一章谈到了在诉讼案件中作证的问题:"你们不可隐瞒证言,因为隐瞒证言的人,心中有罪。真主完全知道你们所做的一切。"(第283节)
With all these principles in mind, the sūrah speaks about giving evidence in cases of litigation: “You shall not withhold testimony, for he that withholds testimony is sinful at heart. God has full knowledge of all you do.” (Verse 283)
在此处,过失被归于心,即人决定去做或不去做之事的意念之所在。然而这句话强调“真主完全知晓你们所做的一切”,其中隐含着一种警告。真主必将依照祂的知识来报应世人,而祂的知识能够揭示任何罪恶的意图。
Transgression in this instance is attributed to the heart, where man’s intention to do or not to do things originates, but the statement contains a veiled threat in stressing that “God has full knowledge of all you do.” God will certainly recompense people according to His knowledge which uncovers any sinful intention.