Installment Sales: Securing Debt in Islamic Jurisprudence By Nizah Kamal Hammad



The Meaning of Securing Debt

Lexical Meaning

Lexically, the word 'tawthīq' means to fasten firmly, to knot (Ibn Manẓūr, 10:371; Ibn Fāris, 6:85). Thus, a covenant is called a mīthāq since it entails firm establishment and certainty. Other meanings of wathiqa are to rely upon something and trust in something or someone (Al-Baʿlī, p. 247). 'Al-amr al-wathīq' refers to that which is firmly established and strong (Al-Fayyūmī, 2:802, Al-Muṭarrizī, p. 476).


In Juristic Terminology

Imam Ilkiyā al-Harāsī mentioned in his book Akām al-Qurʾan (1:421) that al-wathīqah fi al-duyūn refers to something that increases the security of a debt. After scrutinizing the way jurists use the term 'tawthīq al-dayn', we found that they apply it to two matters:  

The First Meaning: affirming and supporting the creditor’s right to his wealth, which is now the liability of the debtor, by somethingdocumentation or witnessesthat can be relied upon to prevent the debtor from denying and to remind him in case he forgets. It will prevent him from paying less than the actual debt while also preventing the creditor from claiming more than the actual debt or claiming that the debt has matured before the actual date, and the like. In case of a dispute between the parties, this tawthīq will serve as powerful evidence to affirm the disputed debt in court (Al-Zuaylī-b, p. 31).  


Documentation and Verification

From the meaning of documenting debt, it is observed that there is a relation between it and verification of debt. This is because the fundamental benefit of documentation is to prove the disputed right in court. Moreover, documentation is nothing but preparation beforehand to prove the right. Both have the same objectives, which are to protect rights and prevent their manipulation, to award them to their rightful owners, and to severe the roots of dispute among people. However, there are two important differences between the two:

First: documentation is considered a precursor to the verification of the right since it exists at the beginning of the transaction that creates the debt liability. Therefore, it precedes verification, which comes later, is based upon it and results from its existence.

Second: documenting the debt by the ways that strengthen and affirm it represents only one category of means for verifying the debt. There are other means for proving the debt that are regarded as admissible evidence for basing legal judgment upon.

Thus, 'documentation of debt' is considered a causal event which results in a proof that relies upon it, nothing more. The difference between it and the verification resulting from it is like the difference between the cause and the effect.

The Second Meaning: is strengthening the creditor’s right to the wealth that the debtor is liable for. This is so the creditorin case the debtor fails to settle the debt for any reason­will be able to recover what he is owed from a third party who guarantees the debtor by his wealth or from a financial asset pledged against the debt.

It may be observed that this meaning of securing debt does not refer to reliance on a means of proof to present to the court to get one’s right, as in the first meaning. Rather, it refers to reliance on a security, either a guarantor or a pledge, that guarantees the creditor’s right and enables him to recover the debt in full.


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