Question:
Assalamualaikum ustaz. I asked for a loan from my father but before I can pay him back, he passes away. Should I settle my debt to him?
Answer:
Waalaikumussalam wrt. wbt.,
Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.
Debt is a handover of ownership of a certain item to another on the condition the other person returns it without any additions. [1]
In Arabic, it is stated as al-qardh (القَرضَ). Al-Qardh lexically means cut. According to the dictionary al-Misbah al-Munir [2]: ‘قَرَضْتُ الشَّيْءَ قَرْضًا’ means I’m cutting something. This noun means something given to another on loan. This word is used in Arabic for it (loan) cuts the owner’s right on the item.
According to the jurists, a loan is giving ownership of an item to another on the condition the person returns it without any addition. In Arabic, this process is named qardh, for this process results in the owner’s ownership being cut to be given to the debtor. This is in line with the literal meaning of qardh.
Allah SWT commanded the believers to record any loan or debt and its due date or deadline of payment. Allah SWT states in the Quran:
يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا تَدَايَنتُم بِدَيْنٍ إِلَىٰ أَجَلٍ مُّسَمًّى فَاكْتُبُوهُ ۚ وَلْيَكْتُب بَّيْنَكُمْ كَاتِبٌ بِالْعَدْلِ
“O you who have believed, when you contract a debt for a specified term, write it down. And let a scribe write [it] between you in justice.” [4]
Ibn Kathir explained, “This verse is a guide from Allah SWT for His believing slaves to write or record if a trade is performed in delayed payment (debt).” [5]
Imam al-Sa’di stated this verse contains a great ruling and the benefits from the activity of recording a debt to prevent greater harm. [6]
Imam al-Maraghi said commandments such as this are more towards instructing His believing slaves to take care of their debt which includes the akad of loan and salam. [7]
Generally, debt in Islam is permissible and follows the syarak. A person in need is permissible and sunnah to ask from another without any guilty conscience. Furthermore, it is the responsibility of the person being asked. This is stated in Allah SWT’s book and scholars’ ijma’. [8]
The wisdom for the sanctioning of this practice is clearly to realize Allah SWT’s wish to create an environment where people help one another for good intentions and taqwa amongst the Muslim ummah. Moreover, this practice can also strengthen the brotherhood relationship between Muslims by asking them to help those who are in need and suffering.
In this issue, we start with a hadith narrated by Abu Hurairah RA, Rasullullah PBUH said:
نَفْسُ الْمُؤمِنِ مُعَلَّقَةٌ بِدَيْنِهِ حَتَّى يُقْضَى عَنْهُ
“A believer’s soul remains suspended according to his debt until it is settled or paid off on his behalf” [9]
Imam al-Suyuti said: “This hadith means that the soul of a believer will be suspended from an honourable status.” [10]
According to the above question, the debt of a person towards a deceased is included in the definition of inheritance. Syeikh Muhammad al-Zuhaili stated scholars defined inheritance as everything that is left by a deceased that including his property, rights and benefits. Debt is a property of the deceased that is loaned to another and it is obligatory to be returned to the heirs as an inheritance for the ownership of the deceased has changed to the heirs. [11]
When the debtor himself is one of the heirs, then the situation is divided into three:
- The debt is automatically settled if the debtor is the heir that inherits all of the debt to be paid.
- The part of the debt is considered settled for the part that he should inherit.
- The debt is considered settled if all the other heirs agreed to let the debt go.
According to this issue, we divide it into several situations:
First situation: The debt is automatically settled if the debtor is the heir that inherits all of the debt to be paid.
A debt of the man from his father is of the same value as the amount of the inheritance he would inherit, then he doesn’t have to pay anything to the other heirs, for the ownership of the deceased has changed to the heirs after his death and the debtor is one of his heirs. Thus, the part of the debtor is used to settle the debt of the debtor towards his father.
Second situation: The part of the debt is considered settled for the part that he should inherit.
If the debt of the man from his father is more than what he would receive, then the difference between the debt and the inheritance should be paid and divided among the other heirs following the faraid calculation.
Third situation: The debt is considered settled if all the other heirs agreed to let the debt go.
It is permissible according to syarak for the heirs to do takharuj in the division of inheritance. [12] in the context of the above case, it is permissible for the heirs to perform sulh by letting go of the claim of the debt by the debtor heir with his father. In simple terms, the other heirs agreed to let go of the debt. This is permissible for the faraid portions are the rights of the heirs and they can decide to take or let it go.
Conclusion
To close, we’d like to state that a person’s debt to his father is obligatory to be settled according to the above-presented situations, for it is an inheritance that was previously owned by the father and must be divided to the rightful heirs, except when the other heirs agreed to let it go, then he is free from the debt.
May Allah SWT grant us all understanding in this religion. We end with the following supplication:
اللَّهُمَّ إِنِّي أَعُوذُ بِكَ مِنْ الْهَمِّ وَالْحَزَنِ وَأَعُوذُ بِكَ مِنْ الْعَجْزِ وَالْكَسَلِ وَأَعُوذُ بِكَ مِنْ الْجُبْنِ وَالْبُخْلِ وَأَعُوذُ بِكَ مِنْ غَلَبَةِ الدَّيْنِ وَقَهْرِ الرِّجَالِ
“O Allah, I seek refuge in you from grief and sadness, from weakness and from laziness, from miserliness and from cowardice, from being overcome by debt and overpowered by men (i.e. others).”
Wallahu a’lam.
[1] See al-Fiqh al-Manhaji, (6/82), Mughni al-Muhtaj, (2/117) and al-Taqrirat al-Sadidah, Qism al-Buyu’, (pg. 45)
[2] See al-Misbah al-Munir, 2/497
[3] See al-Fiqh al-Manhaji, 4/121-122
[4] Surah al-Baqarah: 282
[5] See Tafsir Ibn Kathir, 1/411
[6] See Tafsir al-Sa’di, 1/118
[7] See Tafsir al-Maraghi, 1/551
[8] See al-Fiqh al-Manhaji, 4/121-122
[9] Narrated by Ibnu Majah (2413), al-Tirmizi (1079) and al-Baihaqi (6891)
[10] See Tuhfah al-Ahwazi, 4/193 and Mir’at al-Mafatih, 8/152
[11] See al-Mu’tamad fi al-Fiqh al-Syafie, 4/344-347
[12] See al-Mu’tamad fi al-Fiqh al-Syafi’I, 5/513