December 09, 1996
Mr. Ahmed Chohan
Durban Spice Works
P.o. Box 3748
Dear Brother Ahmed Saeed Chohan,
As Salamu Alaikum Wa Rahmatullahi Wa Barakatuhu,
First of all I would like to apologize for this inordinate delay in replying to your letter of 27th June,1996, but it was due to my overwhelming engagements and travels. I hope you will ovelook this delay.
Regarding your question about taking an insurance to cover the death it is pertinent to know that initially the transactions of insurance in vogue today are not permissible under Shariah there is an element of either interest or gambling. However, in the given situation of your query where a huge amount of inheritance is apprehended to go to the death duty which is in clear violation of the rules of inheritance laid down by the Holy Quran and Sunnah, taking of insurance to cover the death duty can be accepted as a lesser evil. If the insurance company is owned by the government taking of such insurance is undoubtedly permissible. However, if the insurance company is a private one it can be held as permissible on the ground that depriving the legal heirs of such a huge amount is a greater evil which can be avoided by opting for a lesser evil of insurance. But this permissibility will be subject to the condition that the amounts so recovered from an insurance company can never be availed of for the benefit of the insured or his legal heirs except to the extent of paying off the death duty imposed by the government. Therefore, if after satisfying the death duty there remains some amount it must be given to the people entitled to receive Zakah.
Wa As Salamu Alaikum Wa Rahmatullahi Wa Barakatuhu,
Mohammad Taqi Usmani
1. Where goods are set aside at the supplier’s warehouse: this raises the crucial issue: Does such setting aside per se constitute constructive possession in the form of تخلية , ( “ giving up”) in the sense that the bank as the holder of the relevant invoice is able to access and take possession of the precise, identified, underlying goods, whenever it wishes.
2. The answer is that the precise goods , which are the subject matter of the First Sale, between the supplier ( as seller) and the bank ( as purchaser) must be precisely identified, and distinguished from the remaining , bulk goods in the warehouse belonging to the supplier.
3. Put differently, once the goods, so purchased by the bank, have been pinpointed , separated and precisely identified, by appropriate markings or other method, then , in such a situation, constructive possession in the form of تخلية is deemed to have occurred.
4. It is not the right to take possession of the goods reflected on the invoice from the general , bulk stock located in the warehouse, ( out of which the goods sold are to be removed or taken) rather it is simply taking possession of the goods already identified, separated and pinpointed, as belonging to the bank , as purchaser.
5. In other words, if the specific , pinpointed, identified goods, reflected on the relevant invoice, which have been separated from the larger bulk stock, are destroyed or damaged, the risk ضمان falls on the bank, prior to the second sale to the client.
6. In these circumstances, it is prudent to undertake random audits to ensure that the goods , reflected on the relevant invoice, are so specifically identified , ascertained and separated from the general , bulk stock in the warehouse.
ان تخلية انما تعتبر قبضا حكميا اذا كان المبيع متعينا متميزا عن غير المبيع. اما التخلية بدون التعيين ، فانه ليس تخلية فى الحقيقة و ليس فى حكم القبض
" فى بيع قفير من صبرة اذا كال الباءع منه قفيرا بغير حضرة المشترى فهلك ان البيع قاءم يتعين فيما بقي. و ان لم يبق فى المخزن شيء بطل البيع و لا يهلك شيء من مال المشترى: حاشية الشلبى على تبيين الحقائق الزيلعي.
And Allah Knows Best
M S Omar
6 April 2021