PS201-Chapter five

MOHD GHADAFI BIN SHARI
POLITEKNIK SEBERANG
PERAI

5.1 Describe the types of Mal.
5.1.1 Define Mal, Haq (Right) and Manfa’ah
(Benefit)
5.1.2 Describe the types of Mal
a. Manqul (Movable)
b. Ghair Manqul (Immovable)
c. Mithliy (Alike)
d. Qimmiy (Invaluable)
e. Istihlakiy (Single-use)
f. Isti’maliy (Reusable Item)
g. Mutaqawwim (Valuable)
h. Ghair Mutaqawwim (Valueless)

*Mal in the Arabic language signifies whatever in
effect a man may acquire and possess; whether
that is corporeal ('ayn) or usufruct (manfa'ah)
*Hanafi
*Maliki
*Syafiee
*Hambali

*In the dictionary, definition of mal (its plural - amwal) is
simple and straight forward, "whatever you own from all
matters".
*Mal in word means properties. The thing that be owned by
someone. This means that any goods that could be owned
in the form of good or benefit its consider as al-mal.
*The concept of mal or property according to Hanafi School,
mal is which is created, beneficial to humans, valuable and
can be kept and would decrease in its value and become
worn after usage. There is no consensus amongst the
Hanafi. Some view that mal covers only tangible things
excluding usufruct and rights. And there is a second view
on the definition, which covers both the tangible and
intangible. Therefore, all the properties, goods, usufructs
and rights can be classified as mal.

*The concept of mal or property according to Maliki School, mal
means everything that can be possessed, and the owner has an
exclusive right of possession of the object when he owns it.
Hence, in order for an object to become mal, it will depend on
the relationship between the owner and the object, as the
need to own and use the object is based on the fact that the
object is beneficial to the owner.
*The concept of mal or property according to Syafiee School, an
object cannot be classified as mal unless it is valuable and can
be sold. In addition, someone has to be accountable for the
object if it is damaged. The object can still be classified as mal
even though it is a small amount, such as a coin or any
equivalent for it, because people are still interested in owning
it. The valuable things should have two criteria: first, they
should be beneficial to people. Second, in general, their values
will increase when the prices rise.

*The concept of mal or property according to Hambali School,
mal is something in which here exists a lawfully permissible
benefit without resulting from pressing need or necessity ,
maintains that the things in which there is no benefit in
essence, such as insects, or where there might exist benefit
but it is legally prohibited, such as wine, or there is a
lawfully permissible benefit but only in the situations of
pressing need, such as keeping a dog, or in the situation of
necessity, such as the consumption of a carcass when in dire
need of survival, are excluded from the status of mal.

“And do not eat up your property among
yourselves for vanities nor use it as bait
for the judges with intent that ye may eat
up wrongfully and knowingly a little of
other’s people”

“To those weak of understanding make not
over your property which Allah hath made a
means of support for you but feed and
clothe them therewith and speak to them
words and kindness of justice”.

*It must be valuable.
*It could be owned and useful.
*The useful item must be utilized based on Islamic principle for
muslim.
*Things that not required to be owned even though give some
useful such as air, fire, water, sea, grass are not consider as Mal.
*A thing that is yet to be owned by someone is also consider as
Mal.
*It must be use not against any shariah principle

*Haq literally means "an established matter that cannot be
denied"
*Haq as what a person is entitled to, thus, implying some
kind of a "right".
*Haq may be defined as whatever is established exclusively
(in favour of the owner) and to which the law accords
control and obligation to realize a specified interest.
*This definition gives the owner of the Haq an exclusive and
legal right of control over the object of the right.
*The classical jurists also defined haqq in the light of the
two prevalent classifications of haqq into the haqq of Allah
and the haqq of people. In this line, al-Qarafi define haqq
of Allah as His commands and prohibitions; and haqq of
people as their interests (masalih).

A permissible right gives the owner the right of either to
act or not to act, since the law neither commands nor
forbids him to do so. For example, is the individual's right
to own property. Until the right is exercised, it is
considered a liberty. A permissible right will only become
a confirmed right after the actual acquisition of the
property, for example, by way of purchase, gift or
inheritance. Once a right is confirmed, it has the force of
law and must be respected by others.

An obtainable right is in between the permissible right
and the confirmed right and occurs when a person can,
but is yet to acquire a confirmed right through the
exercise of his unilateral wish. For example, when a
person is offered to buy merchandise, an obtainable
right is created in his favor. If he accepts the offer by
buying the merchandise, the obtainable right is now
converted into a confirmed right that can be enforced
by the law.

*Both permissible and obtainable rights are weak
because they cannot be sold, inherited, or made a
basis of a claim for compensation.
*A confirmed right entitles the bearer an exclusive
advantage that can be inherited and made a basis of
a claim for compensation.

*Another way to classify Haq is by consideration of its relation
to property. In this sense, Haq can be classified into first,
financial or property right (haqq mali) and second, non-
proprietary right (haqq ghayr mali).
*Haqq mali has been defined as a right that is related to
property, and its object is property or something valued with
property.
*The property right also regulates the financial relationship
between one person and the other. It is distinct from the other
rights because haqq mali is capable of being negotiated
(tanazul) and transferred (intiqal) from one person to the
other, and is also capable of being the subject matter of a
transaction.

Haqq mali can be further divided into two main types. There
are;
1. Al-haqq al-mali al-shakhsi
2. Al-haqq al-mali al-ayni
*Al-haqq al-mali al-shakhsi refers to the property right that the
law accords to an individual over the other, whereby the object
of such right is the performance of an act or obligation, or the
abstinence from doing an act. Thus, an individual property right
presupposes the existence of three main elements. There are
the owner of the right (sahib al-haqq), the object of the right
(mahall al-haq) and the person obliged under the right (man
alayhi al-haqq).
*Al-haqq al-mali al-ayni on the other hand refers to the
property right that the law accords to an individual over a
specific thing or property. Thus, the corporeal property right
presupposes only two constituents. The owner of the right and
the object of the right.

*Manfa’ah called as intellectual property which cannot be
see and touch. Refer to something that is beneficial to
human. Classified as incomplete property.
*Describes as something which a person or corporation
can have ownership of and can transfer ownership of to
another person or corporation, but has no physical
substance.
*Example artistic, author of book.
*According the jurist, intellectual property is al-Mal.
Hanafi school mention manfa’ah not al-mal and cannot
be inherited. Selling of it does not imply the transfer of
ownership of the property, buyer just get the benefit of
the property.
*Contract al-manfa’ah will be terminated when contract
expired; property damaged, and deceases of any parties
in the contract.

*Usufruct is the legal right to use and derive
profit or benefit from property that belongs to
another person, as long as the property is not
damaged.
*There are several types contract that used
concepts of manfa’ah. There are borrowing,
ijarah, waqaf, wassiah, and ibahah.

*In borrowing situations, haq owned by creditor and
manfa’ah owned by debtor. According to Hanafi and Maliki
school refer to giving away the benefit of something to
someone without any consideration in return. According to
Syafiee and Hanbali school mentions as the permission to
use the benefit of something without consideration. It is not
a non-binding contract. Example borrows the money.
*In ijarah or renting situations, normally a contract of selling
the benefit of a property at a specified price and period.
Ownership of the property is not transferrable. The owner is
liable for maintenance of the property. Example rental
house.
*Waqaf refer to a voluntary contribution of a special
property by the owner for the benefit of the society.
Example waqaf for education or waqaf for health services.

*Wasiyyah is a will or a document which states
a person’s property that will be distributed
after death. The property is distributed using
Faraid and the new owner can use the
property as he like by following the will itself.
*Ibahah refers to the permission to use the
benefit of or consume something. Example
the permission to stay in someone’s house.

*Manqul is property that can be move from
one place to another place.
*Hanafi school mention manqul as anything
that can be move from one place to another,
with or without changing its original form of
structure. Example car.
*Maliki school mention manqul as anything
that can be moved from place to another
without changing its original form. Example
cloth, computer.

*Ghair Manqul or Mal Aqar is property that
cannot be move from one place to another
place.
*Hanafi school mention as property that
cannot be moved from its original places.
Example land.
*Maliki school mention as anything that cannot
be moved or anything that can only be moved
when its original form can be changed.
Example building.

*There are benefits from manqul and ghair manqul types
properties.
1. Syuf’ah (co-ownership) is only applicable to
immovable property.
2. If the property is movable (manqul), most of jurist
said that syuf’ah cannot be applied.
3. Waqaf is only valid using ghair manqul, but other
jurists ruled that waqaf is valid on ghair manqul and
manqul.
4. Movable property of wasiat is able to sell for
anytime if necessary but not in immovable
property. However there are some reason for the
custodian to sell immovable property such as to pay
debt.

*Mal-Mithliy or homogeneous refer to the property in the market
that has same value.
*Example your pencil borrowed by your friend, then he lost your
pencil. So, he must buy the new one which exactly same.
*If the two of properties have differences, it must be acceptable
by both parties.
*Mithliy property can be divided into four types:
oProperty that can be measured such as wheat, rice and
others.
oProperty to be weighted, such as cotton, iron and others.
oProperty that can be counted as almost the same size as
eggs, oil and others.
oProperty that can be measured with a meter or yard as the
same kind of cloth, the same wood cuts and types.

*Mal-Qimmiy refer to non-substitute but different in value.
*Qimiy property is property that is not there yet in any
similar or equivalent to each other in the streets or in
stores, or available for a similar property but the prices
vary from one another as number of animals or several
lots of land, trees, houses, jewels, books written by hand
or books that have been used, as well as in the property,
such as fruits qimiy a different size from one to others.
*Example antique goods like Taming Sari cannot be
replaced.

Qimiy property will become the property Mithliy and vice versa can occur
in several circumstances:
*By reason of the expiration in the market, when finished Mithliy property on
the market, then qimiy property switch to mithly property.
*When the Mithliy property mixed with both types of Mithliy property and
different mixed, so the two types of property that the Switch Mithliy Mithliy
condition of the property to the property as mixed rice qimiy with grain and
so on.
*If property Mithliy exposed to fire or drowning in the ocean, then be turned
into assets such Mithliy qimiy property.
*If the property has occurred mithliy defects or have been used, and it is
qimiy specific property. Real estate mithliy qimiy turn to when there is much
qimiy property after it is rare people.
*If a property is rarely able to be purchased in the market, then the property
is already a lot, it turns into a real estate qimiy mithliy evaluated after a
specific price.
*Property value or which has been assessed against the person are more
common than qimiy property. Property that has been accounted for property
mithliy and qimiy.

Benefits from grouping of Mithliy and Qimmy;
*Compensation for any damages for both.
*In Mithliy, damages must be compensated with the same value
and amount.
*In Qimmiy, damages should be compensated with the
equivalent value of damages.
*Repayment of debt, can be used in mithliy, but cannot be
used in qimmiy.

*Mal-Istihlakiy refers to anything that can be only be used by
changing or destroying its original form. Example foods or drink
of water.
*Istihlakiy property may be accepted for the purpose contract to
spend his substance such as debt money and the food.
*Mal-Isti’maly refers anything that can be used without changing
its original form or structure. Example book or pen.
*Isti`maliy is adopted and sustained use, the property may be
taken as well as the benefits of a permanent essence such as
fixed assets, carpeting, clothing, books and others.
*Isti`maliy property acceptable to the religious with the aim of
using it as tenancy and borrowing.

*Mal-Mutaqawwim refers to any property that is possed and legal
in view of shariah.
* Two conditions are possessed by legal owner and useful and
beneficial for human and not against shariah principle. Example
car, handphone.
*Ghair mutaqawwim refer to any property that is not possessed by
someone and non-permissible property.
*Example fish in the ocean, pig
*The non-permissible property is however is consider as al-mal to
non-Muslim.

5.2 Define the concept of ownership in Islam
5.2.1 Define ownership
5.2.2 Identify the types of ownership
a. Milk At-Tam (Complete Ownership)
b. Milk An-Naqis (Incomplete Ownership)

DEFINE OWNERSHIP
 Ownership and right to property is the inherent
right of a man to exercise his rights over property
which he possesses and control with obligations
connected therewith in the property acquired,
such as to use for his own pleasure, to transfer
and to extinguish his right by way of transfer if he
chooses.
 Every human being has a right as inherent to his
status to make such use of his physical and
mental faculties as he chooses, provided he
does not interfere with similar liberty of others. It is
by the exercise of this inherent right that rights
and obligations connected with property are
mostly acquired, transferred or extinguished.

milkiyah
 Muslim jurists used word ownership as Milkiyah and
the property as Mal. The term al-Milk, however is
sometimes used for ownership and at other times for
the subject matter of ownership.
 Ownership is defined by Muslim jurists as the
relationship that exists between a person and a
thing that gives absolute control and right of
disposal over it to the exclusion of others. Some of
them also define it a the relationship between man
and property that has been established by the
shariah through which he exercises exclusive control
and right of disposal over it as long as there is no
shariah restriction. This however does not change
the essential nature of the definition with respect to
control and exclusion of others.

We can distinguish ownership between
three major categories as;
 a private ownership,
public ownership, and
waqaf.

PRIVATE OWNERSHIP
 Islam recognizes private ownership as the individual’s
property and permits the ownership of all types of
property acquired by lawful means. The authority of this
sanction may be elucidated from the following surah
An-Nisa’ verse 02 and An-Nisa’ verse 32.
 Islam also recognizes the right of inheritance and
obviously it can only be recognized by a system in which
the people have the right of ownership. Islam considers
the rich trustees and claims them to vindicate their trust-
worthiness by so dealing with their wealth that it
becomes not wealth reflective.
 Islam gives guarantee or the safety of the property of
the citizens and inflicts heavy punishment on culprits.
Thieves and robbers, who endanger the safety of
property of the citizens and do not honour their rights
are very severely punished by Islamic State.

PUBLIC OWNERSHIP
 We must distinguish between the public ownership
and government ownership of the property. In past,
fuqaha have spoken about the streets and rivers.
And have maintained that there are owned by the
community and not by the government. Nabi
Muhammad PBUH has stated that people are full
partners in water, grazing and fire. These belong to
community and the government should utilize them
for the benefit of all.

WAQAF
 Waqaf is not mentioned in al-Quran explicitly, but it
is implicit in the teachings of the al-Quran and
Hadith. Waqaf is meant to take resources away
from the private ownership and allocate them to
the benefits of those who need the fruits or results of
such projects.
 Waqaf is independent from the control of both the
private sector and the government. It belongs
directly to the society and is perpetual source of
income to its beneficiaries.

THE TYPES OF
OWNERSHIP
Milk At-Tam
Milk An-Naqis

*Total ownership = Legal and
beneficial ownership. This
means that the owner enjoys
the legal rights associated
with legal ownership (haq)
and the benefits derivable
from usufruct (manfaah)

Milk At-Tam can define as total ownership, which legal
ownership without beneficial ownership, or vice versa. An
owner holding only one or the other is unable to enjoy the
full rights or benefits that come with total ownership.
It has the characteristics of:
a)Complete authority:
the ability of the owner to manipulate the property and
its usufruct in the Syariah lawful conventional transactions
(such as selling, leasing, gift, and will), succession as in
inheritance, and the fruit of its production;
b)Continuity:
the property is used unconditionally for a time or a
situation within the syariah teachings, as long as the
property exists;
c)No compensation:
when damaged, the owner is not obliged to refund
anyone, but his/her responsibility is a religious and moral
one, which may lead to power of attorney ( Hajr).

*Partial ownership = Legal
ownership without beneficial
ownership, or vice versa. An
owner holding only one or the
other is unable to enjoy the
full rights or benefits that
come with total ownership.

Another type of ownership is Milk An-Naqis. Milk An-
Naqis refer as Partial ownership. It is legal ownership
without beneficial ownership, or vice versa. An
owner holding only one or the other is unable to
enjoy the full rights or benefits that come with total
ownership.
It is divided into three;
 ownership over rights,
 ownership over property only and
 ownership over usufruct only.

•OWNERSHIP OVER
RIGHTS
•OWNERSHIP OVER
PROPERTY ONLY
•OWNERSHIP OVER
USUFRUCT ONLY

OWNERSHIP OVER RIGHTS
 These refer to the rights included in a land (huquq al
irtifaq or easement rights). Easement rights in general
mean the benefit of an individual or group properties
from another property publicly or privately owned. It has
to be noted that there are some differences between
the easement right (Haq Al Irtifaq) and the right of
benefit ( Haq Alintifa’ ).
 The main difference is that; Easement rights are always
specific for immovable property (examples a land or a
house), while the right of benefit is general for any
object movable, immovable, or human (examples a
book).In case of privately owned properties, the
individual as well as the group has the easement rights
because of the attachments and geographical
topographical relationship between properties.

 For example, the right of water, the right of
irrigation, the right of drainage, the right of passage
and other neighbourhoods rights such as the right
of upper or lower floor neighbour’s, the right of next
door neighbours and the right of pre-emption.
These rights are included and are subservient to the
land and cannot be independently traded. Any
one, who owns the land, owns these rights.

OWNERSHIP OVER PROPERTY
ONLY
 It refers to a situation where a property is owned by one
person and its usufruct by another or in Arabic, Mulk al
‘ain.
 For example, in a leased house, the lessee has the right
to take the possession of the house and use it for the
leasing period. During the period, the house owner’s
right is not complete. He cannot lease the same house
to other nor can he sell it without the lessee’s permission.
Same as when a person leaves a will to another person
to own the use of a property for a period of time, then
after that, his inheritors own the property and the
usufruct. During this period the inheritor owns the
property only, but not the usufruct. However, this is not a
common situation.

OWNERSHIP OVER USUFRUCT
ONLY
 It is the complement of the second (ownership over
property only). It refers to the same situation where
a property is owned by one person and its usufruct
by another. This type of ownership is also referred as
beneficial ownership and Mulk al manfa’ah.
 One owns the ownership for a specific period of
time and has the right to sell this usufruct or make
others share it with him. Examples of this type are
leasing (Ijarah), borrowing ( Ijarah), endowment
(waqf ), and wills (wasiyyah). Ownership over
usufruct could also be granted through permission
(ibahah) where a person permits another to use, for
instance, his car or computer.

Numerous verses in the Qur’an give a
clear indication that everything is
owned by Allah (God) and that
property in the absolute sense
belongs to Him, and to Him alone.
The Prophet PBUH once said;
“One should not harm himself or
others” (Narrated by Muslim).

‫خير‬ ‫ا‬ ‫جزاكم‬
‫الجزاء‬
THANK YOU

PS201-Chapter five

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PS201-Chapter five