34. 债权转让(Al-Hawala)
34. Transfer Of A Right (al-hawala)
"哈瓦拉"(al-hawala)源自将权利从一个保证契约转移到另一个保证契约。它是指负有债务的一方,将其对债权人所负的债务转移给另一个对其负有债务的人。这种转让是由圣训确立的。布哈里根据艾卜·胡莱赖(愿安拉喜悦他)的传述,记载先知ﷺ说:
(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:
“富人拖延偿还债务是不义的行为;但你们中若有人被推荐向一位富人索取债款,就应当接受这样的转交。”
“Delay in payment by a rich man is injustice, but when one of you is referred for payment to a wealthy man, let him be referred.”
换句话说:
And in other words:
“谁在富有时放弃了自己的权利,那就让他等待”(艾哈迈德记载)。
“Whoever retired his right while rich, then let him wait” (Narrated by Ahmad).
在债务和物品上都允许(即无论是即时的还是延期的),因为这是将一项权利从一方转移给另一方,而这是一般性的,涵盖所有权利。另外,因为圣训的话语:“你们中若有人被转让给富人”是普遍适用的,包括其中有(al-ahad)的情况,以及富人对其有即时权利的情况,也包括其上有延期权利的情况,因此它保持其普遍性。富人是有能力偿还的人。圣训中有言,先知ﷺ说: Note: "(saw)" was replaced with ﷺ per the rules, and "the Prophet" was given ﷺ after it.
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:
真的,安拉(SWT)说:“谁借给不贫穷的富人……”
“Verily Allah (swt) says: ‘Whoever lends the rich man who is not poor”
然而,使者(saw)所说的“若债务转移到富人身上,则应跟随富人”这一命令,要求被转移者并非否认债务或拖延还债的人。这一点可以从强制受让人跟随富人而得知:富人应当是有能力还债的人,而不是否认债务或拖延者。转让的实质以及圣训的原文表明,转让中必须有转让人(muheel)、受让人(muhtal)和被转让的对象(muhal ‘alaihi)。被跟随的是转让人(muheel),而被命令跟随其债务的“你们中的一人”即是受让人(muhtal),至于被命令跟随的那位富人,则是被转让的对象(muhal ‘alaihi)。
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).
转让有效须具备四个条件: 第一:两项权利在种类以及即期或迟延期限上相同,因为这是权利的转让,而权利的转移是按其性质进行的。因此,应付金的人可以用金换金,或用银换银,但不可用银来换应付金的人所欠的金,也不可用金来换银。对于有一笔为期一个月的债务的人,可以用另一笔为期一个月的债务进行转让,对于有一笔到期债务的人,也可以用另一笔到期债务进行转让。即期权利可以换即期权利,迟延权利可以换迟延权利。然而,如果两笔债务中一笔是即期、另一笔是迟延,或者两者的期限一为一个月、一为两个月,那么这种转让就是无效的。
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.
第二:转让须以已确立的债务为前提。因此,若妇女在圆房之前将其嫁妆转让给丈夫,则该转让无效,因为嫁妆尚未确立。若雇员在工作结束之前或工资期限结束之前转让其工资,该转让同样无效。若某人自身并不欠债,只因他人之故被转让给另一个欠他债务的人,这不是转让,而是委托(hawala),应适用委托的规则,而非转让的规则。若他将自己所欠之债转让给一个本身并不欠他债务的人,这同样不是转让,因此被转让人(muhal ‘alaihi)没有义务支付,受让人(muhtal)也没有义务接受,因为转让是双方的等价交换,而此处并不存在等价交换。若受让人(muhtal)向被转让人(muhal ‘alaihi)扣留了债务,则该债务仍归于转让人(muheel)。
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).
“如果你们中有人在富有时被跟随(追随)……,那就让他(去)跟随(yatba’)”
“If one of you is followed while rich, let him (yatba’)”
因为转让人(muheel)可以亲自或通过其代理人履行其应尽的权利,而被转让债务人(muhal ‘alaihi)已在收取方面代替了他的位置,所以受让人(muhtal)必须接受。至于被转让债务人(muhal ‘alaihi)不同意的情况,这是因为债权人使受让人(muhtal)在收取方面代替了他的位置,所以它不需要应得权利之人的同意,就像委托代理一样。
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.
因此,票据类凭证(sanadat)中包含支票一类款项或到期的延付款项的,即所谓的"物的转让"(hawalat al-‘ain),仅需受让人(muheel)同意即可,无需让与人(muhtal)或被转让债务人(muhal ‘alaihi)的同意。同样,包含尚未到期款项的票据,如本票,即所谓的"债权的转让"(hawalat al-dayn),无论让与人(muhtal)是否同意,也无论被转让债务人(muhal ‘alaihi)是否同意,均可转让。除非在转让中明确约定同意,否则转让不构成合同。因此其中不存在要约与承诺。转让实际上只是一个人自身的处分行为,如同担保、保证人责任、遗嘱及类似处分一样,它们都不被视为合同。
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