Gharar in
the financial transaction may render the financial contract totally null and void, or it may lead in some cases
to compensation. The term gharar literally means gharara which means danger or fraud, the source term al-taghrir refers
to exposure to danger. The linguistic original of the term gharar refers to items with a likeable appearance and disliked
reality. (Wahbah Al-Zuhayli, Financial transactions in Islamic jurisprudence, vol. 1, p. 82. Ali Al Khafif, Ahkam Al Muamalat Al Shariayyah, p. 6). Or it refers to something which cannot be defined or specified. (Ala'Eddin
Kharofa, Transactions in Islamic law, p. 80.). The word of gharar has been used to mean risk, uncertainty and hazard.
(Mohammad Hasim Kamali, Islamic commercial law, p. 84.). In the technical meaning, the Muslim jurists provide
various definitions which are related to the uncertainty and ignorance of one or both parties of the substance
or attributes of the subject of sale, or doubt of subject matter existence at the time of contract.
The maliki define gharar as: "what is not known to exist in the
future, e.g. birds in the air and fish in the water". (Al qarafi, al furuq,
vol. 3, p. 265). Shafi'is defines it as: "gharar is
that which admits two possibilities, with the worse consequence being the more likely". (Al Isnawi, Al sawl sharh
minhaj al usul, vol. 2. p.
89).Shairazi said: "gahrar is
that whose nature and consequences are hidden". (Al Shairazi, Al Muhadab,
vol. 1, p. 262.). In this context the sale of gharar is
any sale that incorporates risk that affects one or more of the parties to the contract and may result in loss
of his property. (Wahbah Al-Zuhayli, Financial transactions in Islamic jurisprudence, vol. 1, p. 83.).
The gharar is risk in the sense of lack of
certainty regarding the existence of an object. The gharar sale
is consequently: the sale of that which is not known to exist or not, whose measure is not known to be large or
small, or that is undeliverable. (Wahbah Al-Zuhayli, Financial transactions in Islamic
jurisprudence, vol. 1, p. 84).
The Muslim jurist agreed that the gharar sales
is not valid, and easily may render the transaction totally null and void, however it is important to record
that gharar in
Islamic law is classified into three categories:
A:The substantial gharar (ghara
kathir): This type of gharar is unanimously prohibited and not accepted in Shariah such
as selling a bird in the sky. This is considering an excessive gharar which renders the financial transaction invalid.
B:The minor gharar (gharar
yasir): This type of gharar is unanimously allowed by Shariah such
as buying a foundation of house; the jurists are in agreement that this minor gharar is
tolerable and permitted. (See: Ali Al Khafif, Ahkam
Al Muamalat Al Shariayyah, p. 356).
C: The
moderate gharar: This ismoderated gharar,
this category falls between the two previous categories, however there are few legal opinions from the
Muslim jurists with regards to this category, whether this gharar belongs to the first category or to the second one.
The Maliki and Hanbali School of law and other Muslim
jurists areof the opinion that the minor gharar in sale is permitted and accepted
in Shariah, and it does not affect the business
transaction, this legal Shariah approach will facilitate the business transaction and smoothen the trade.
According
to Imam al Nawawi, there are two major items to which minor gharar are
applicable:
·Items which are included as part of a sale and that may not
be sold separately (e.g. foundation of a house).
· Items that are customarily tolerated, either due to its
insignificance, or the difficulty of identifying, e.g. the fees for using a bathroom where the amount of
water used in the bath may vary. (Al Nawawi, Al
Majmou, Vol. 9, p. 280).
4.2.
Conditions of the legal consequences of gharar
In order
for gharar to take its legal consequences it
should fulfill the following conditions:
Gharar must
be excessive; however, if it is trivial and ordinary such gharar is negligible.
Gharar must
occur in the financial transaction; however, it should be negligible if it occurs in charitable transaction
such as donation transactions (Uqud al tabarru'at).
Gharar must
affect the subject matter of the contract itself directly. (See: MoHammad Hashim Kamali, Islamic commercial
law, p. 85).
4.3.
Types of gharar
According
to al Qarafi there
are few types of gharar as
follows: (See: Al qarafi, Al furuq,
Vol. 3, p. 265).
Gharar in
existence (al wujud) such as the sales of non-existent object.
Gharar in
result (al husul) such as a sale of something which is not in the possession of the seller.
Gharar in
quantity such as the sale of what the hunter will catch.
Gharar in
type (al jins) of the commodity such as a sale of non-identifiable commodity
Gharar in
the attribute (al sifa) of the commodity such as a sale of specific commodity like rice without
determining its specification.
Gharar in
time (ajal) such as a sale of a commodity without specification on the time of delivery.
Gharar in
location such as a sale of commodity without specification on the delivery location.
Gharar in
selection (ta’iyin) such as a sale of one of two present commodities without a specific
selection on the wanted one.