Articles

The Orphans Fund Development Foundation has Canceled the Penalty Clause
Author : The General Iftaa` Department
Date Added : 05-07-2023

The Orphans Fund Development Foundation has Canceled the Penalty Clause

 

In reference to what was published on the website of the General Iftaa` Department and the fatwas it issued prohibiting the penalty clause in Murabaha contracts, the Orphans Fund Development Foundation has responded by deleting the sixth clause from its Murabaha contracts, which include the penalty clause. This was included in a letter from the Director of the Foundation Dr. Faisal Al-Hiary- (Number MA / 1/4/2290), (1st of June, 2009)-addressed to the Grand Mufti. The letter reads as follows:

 

"Since the sixth clause in the Murabaha contract used by the Foundation has not been activated from the time the Foundation started providing Murabaha services in 1988, and in order to avoid any ambiguity that may arise in the Murabaha contract, I would like to inform you that the management of the Foundation has decided to delete the sixth clause and adhere to the general rules stipulated in the Civil Code, in this regard."

 

The Grand Mufti thanked the Director of the Foundation, saying:

"I thank you for deleting the sixth clause from the Murabaha contract used at your institution, and I hope that Allah will reward you well for that. You have removed an obstacle for those who deal with your noble institution, which is keen on earning halal/lawful profits. Your institution is the first among institutions to take into account the provisions of Islamic Law, and I hope that other financial institutions will follow your example, and to you is the reward of being the first good doer in this regard."

 

Afterwards, the Director of the Foundation attached a copy of the new Murabaha contract to his letter, which showed that it was free of the penalty clause and was acceptable from the standpoint of Sharia. However, the employee in charge of executing the Murabaha contract is responsible for applying the Sharia conditions and not neglecting them. And Allah Almighty knows best.

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Summarized Fatawaa

Is Zakah due on the orphan`s money?

Yes, Zakah is due on the money of the orphan.

Is it correct that everything dry is pure even if it has impurity on it?

If something impure becomes dry, it remains impure and is not purified by drying. However, the impurity does not transfer by touching it if the one touching it is also dry. And Allah the Almighty knows best.

What is the ruling on making up missed prayers during prohibited times?

 

Praise be to Allah, and peace and blessings be upon our Master, the Messenger of Allah.
 
It is permissible to make up (qada’) missed prayers at any time, even during the periods when prayer is generally prohibited. The prayers that are forbidden and considered invalid during these times are 'absolute voluntary prayers' (nafl mutlaq)—which have no specific cause—and voluntary prayers whose cause follows the prayer itself, such as the Sunnah of entering Ihram or the Sunnah of the Istikharah prayer. Furthermore, no prayer is considered disliked (makruh) during these prohibited times when performed within the Meccan Sanctuary (Makkah al-Mukarramah).
 
It is stated in Bushra al-Karim (Vol.1/P.181), one of the Shafi’i texts: 'It is not forbidden to perform prayers that have a cause that is not delayed (i.e., the cause is preceding), such as making up a missed prayer (fa’itah)—even if it was a voluntary one—and the funeral prayer (janazah); or a cause that is simultaneous, such as the prayer for rain (istisqa’) or the eclipse prayer (kusuf)... and the Sunnah of wudu, the greeting of the mosque (tahiyyat al-masjid), the Sunnah of circumambulation (tawaf), the Sunnah of arrival, and the prostrations of recitation (tilawah) or thankfulness (shukr). These mentioned prayers and their like are not forbidden provided that one does not specifically intend (ta'ammud) to perform them during the disliked time because it is a disliked time. If one does so intentionally, it becomes forbidden, even if it is a mandatory makeup prayer that is due immediately; because in that case, one is acting in defiance of the Sharia. This is in contrast to when one does not specifically seek out that time, even if the prayer happens to fall within it, or if one seeks it for another purpose—such as delaying a funeral prayer to that time so that a larger number of people may pray over the deceased; in such cases, it is permissible and valid... And it is forbidden to perform prayers with no cause at all, like absolute nafl, or those with a delayed cause, such as the Istikharah prayer, the prayer for Ihram, the prayer for a need (hajah), the prayer before leaving the house, or the prayer before execution; because their causes occur after the prayer itself.' And Allah the Exalted knows best."

If a person enters a mosque and finds the congregation in the final tashahhud, which is more virtuous — joining them or waiting for a second congregation to catch the opening takbīr (takbīrat al-iḥrām)?

All praise is due to Allah, and peace and blessings be upon our master the Messenger of Allah ﷺ.
If a worshipper finds a congregation that is about to finish its prayer, and he hopes to catch the entire prayer from the beginning with another congregation, it is more virtuous for him to pray with this first congregation and then repeat the prayer with the second one — provided he does not intend to confine himself to a single prayer. If, however, he intends to perform only one prayer, then it is more virtuous for him to wait for the second congregation rather than joining the first, so that he may attain the reward of congregational prayer for every single rakʿah.
Al-Khaṭīb al-Sharbīnī, may Allah have mercy upon him, states: "If members of a congregation enter the mosque while the imam is in the final tashahhud, al-Qāḍī Ḥusayn held that it is recommended for them to join him in prayer, and that they should not delay in order to form a second congregation. Al-Mutawallī, however, affirmed the opposite view, and al-Qāḍī's own statement elsewhere supports this latter position, which is the relied-upon view. In fact, it is more virtuous for a person who has missed part of the prayer with one congregation, and who hopes to catch another congregation with whom he can attain the entire prayer within its proper time, to delay so that he may catch it in full with them. This applies when he intends to confine himself to a single prayer; otherwise, it is more virtuous for him to pray with the first group and then repeat the prayer with the others." [Mughnī al-Muḥtāj,Vol. 3/P.186] And Allah the Almighty knows best.