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Unformatted text preview: to be irreconcilable with the idea of liability for damages. According to a variant view, however, the Principles of Islamic Jurisprudence ~ Kamali 272 perpetrator is liable for damages. This ruling draws support from the principle, already referred to, that preventing an evil takes priority over securing a benefit. [11. Abu Zahrah, Usul, p. 230; Badran, Usul, p. 243.] 2) The second type of means is that which is most likely (i.e. on the basis of al-zann al ghalib) to lead to evil and is rarely, if ever, expected to lead to a benefit. An example of this would be selling weapons during warfare or selling grapes to a wine maker. Although al-Shatibi has noted that these transactions are invalid according to the consensus (ijma`) of the ulema, both Abu Zahrah and Badran have noted that it is only the Maliki and Hanbali ulema who have considered these transactions to be forbidden (haram), as they are most likely to lead to evil notwithstanding the absence of certain knowledge that this will always be the case. In their opinion, a dominant probability or zann is generally accepted as a valid basis for the ahkam of Shari'ah. Consequently when there is a strong likelihood that means would lead to an evil, the means may be declared forbidden on the basis of this probability alone. Usul, p. 231; Badran, Usul, p. 244.] 3) The third of the four types of means under discussion is that which frequently leads to evil, but in which there is no certainty, nor even a dominant probability, that this will always be the case. An example of this would be a sale which is used as a means to procuring usury (riba). These types of sales, generally known as buyu' al-ajal (deferred sales), in which either the delivery of the object of sale, or the payment of its price, is deferred to a later date, would all tend to fall under this category of means. If, for example, A sells a garment for ten rials to B with the price being payable in six months' time, and A then buys the same garment from B for eight rials with the price being payable immediately, this transaction in effect amounts to a loan of eight rials to B on which he pays an interest of two rials after six months. There is a dominant probability that this sale would lead to riba although there is an element of uncertainty that it may not, which is why the ulema have disagreed as to the validity or otherwise of this type of transaction. Imam Malik and Ahmad b. Hanbal have held that the means which are likely to lead to usury are unlawful (haram) and must be obstructed. They have acknowledged the possibility that a deferred sale may not actually lead to riba; they also take cognizance of the basic norm in regard to sale, which is legality, and yet they have ruled, on grounds of caution (ihtiyat), that sales which are likely to lead to riba are unlawful. The mere possibility that riba may not actually materialise is of no account, and although sale is generally lawful, this basic legality is of no consequence if it is expected to procure an evil. Furthermore, to prevent the latter must be given priority over any possible benefit that the...
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