Types of Misappropriations
By: Shaheed Ayatullah Abdul Husain Dastghaib Shirazi
Defalcation the opposite of safekeeping is of three types: Breach of trust with Allah (S.w.T.), with the Holy Prophet (S) and with people.
1. The trust of Allah (S.w.T.)
“Surely We offered the trust to the heavens and the earth and the mountains, but they refused to be unfaithful to it and feared from it, and man has turned unfaithful to it; surely he is unjust, ignorant.”
(Surah Ahzāb 33:72)
What is meant by Divine trust? The scholars have a variety of opinions in this regard. Some opine that it denotes the grace of intellect given by Allah (S.w.T.) . The safeguarding of this trust (intellect) means that man should employ it to recognise and obey his Creator. According to other scholars this trust consists of the laws of Islam that Allah (S.w.T.) has sent through His Prophet (S). These laws are a Divine trust. To guard these laws means to obey them faithfully. It is obvious that the heaven, the earth and the mountains did not possess the ability to protect these trusts and hence they refrained from accepting them. Man was competent to obey the command of his creator and therefore he accepted the trust. But he allows his emotions to subvert his intellect and permits his desires to override reason. He therefore ignores the laws he had agreed to obey oblivious of divine retribution. This is breach of trust with Allah (S.w.T.) .
The blessings of intellect and trustworthiness
Intellect or the faculty of reasoning is one of the greatest trusts that Allah (S.w.T.) has bestowed upon man and this trust demands that man continually honours it. We must not say or do anything that is against reason. If we allow our desire to conquer reason we would have committed a breach of trust with Allah (S.w.T.) .
As regards the safekeeping of trust with reference to the rules of Shari’a,
Imam Muhammad Baqir (a.s.) says:
“Misappropriating the trust of Allah and His Prophet (S) is their disobedience. As far as the breach of trust is concerned, every person is the trustee of the laws revealed by Allah.”
It is clear from this tradition that the Divine laws promulgated for men are Allah (S.w.T.)’s trust. The safekeeping of these trusts means the acceptance of these laws and implicit obedience to them. Every individual is expected to study these rules of Shari’a and not to remain ignorant of these. Every individual has to make a point to learn and understand the obligations and be fully conversant with all the laws governing every aspect of his or her life. After learning these laws the individual is further obliged to accept them and follow them in all sincerity.
It is said that when it was the time for prayers, Amir ul-Mu’minīn ‘Ali (a.s.) became fearful and restless and his face became pale. People were shocked to see him thus, and asked him the reason for it. He replied,
“It is the time for prayers! It is the time of delivering the trust that Allah had offered to the heavens, the earth and the mountains, which they had refused. This is what I fear!”
However, this is not restricted to prayers. All the laws of Shari’a are the trust of Allah (S.w.T.) and prayers occupy a lofty position among them.
Propagating the laws of religion
It is pathetic that most of the people of our time are committing breach of Divine trust. People are so engrossed in the materialistic world that they have no time to learn the basic laws of religion, or to act upon them. Day by day religion is given less and less importance although more than before, the need of the day is that people should learn about religion and propagate it to others. We must ourselves act upon the laws of Shari’a faithfully and also exhort others to do the same.
2. Trust of the Holy Prophet (S)
Both Shias as well as Sunnis agree that before his passing away the Holy Prophet (S) had said,
“I leave among you two weighty things, the Book of Allah and my Progeny.”
The Prophet’s words after this, according to history are,
“On the Day of Qiyāma I will question you concerning them (as to how you have safeguarded them)”
According to Tafsīr Majmaul Bayan: The Qur’an and the Progeny have been referred to as “two weighty things” because to follow them is a very difficult task indeed. A true Muslim is one who is able to carry the weight of this responsibility. A Muslim must obey the Qur’anic orders and follow the Ahl ul-Bayt (a.s.). Alas! The followers of Muhammad (S) did not safeguard the important trusts.
“And the Apostle cried out: O my Lord! Surely my people have treated this Qur’an as a forsaken thing.”
(Surah al-Furqān 25:30)
May Allah (S.w.T.) not include us in that majority of people about whom the Prophet (S) shall complain to Allah (S.w.T.).
Ahl ul-Bayt (a.s.) are the Trust of the Holy Prophet (S)
Ahl ul-Bayt (a.s.) are themselves a trust that the Holy Prophet (S) has left with us. To honour this trust is to love them (Ahl ul-Bayt), and believe in their truth with sincerity. We must obey their commands because their orders are the commands of Allah (S.w.T.) and the Holy Prophet (S). They are the Hujjat (proof) of Allah (S.w.T.). By sending them to us Allah (S.w.T.) has completed His proof, so we cannot say that there was no one to lead us after the death of the Holy Prophet (S). The Ahl ul-Bayt (a.s.) are the link between Allah (S.w.T.) and us. We must also respect the Sadāt (the Sayyids) as they are from the Progeny of Ahl ul-Bayt (a.s.), and fulfill their needs, for in this way we would be safeguarding the trust of their ancestors. On one hand the Ahl ul-Bayt (a.s.) are the trustees of Divine laws from the time of the Prophet’s death till the Day of Judgement, on the other hand they themselves (a.s.) are a valuable trust of the Prophet with us, like the Holy Qur’an. One of their rights upon us is that we consider their grief and sorrow as our own, rejoice in their happiness and joy and honour them by going for Ziarat to their holy shrines.
3. Trust of the people
Trust of the people is divided into two categories:
(1) Trust of Property and
(2) Trust of the Shari’a.
The first one denotes any goods or property that a person keeps with someone for safe custody. This can be in various forms. Sometimes one keeps a valuable with another person solely for its safekeeping. Sometimes a thing is given for use but it must be returned after the use is over. This is also known as Ariya or Musta’ar. Another form of trust is when a particular thing is given on hire and its rent is collected, for example a house.
A loan is also a trust. Sometimes a valuable is pledged as the surety for some loan. If the loan taken against this surety is not repaid this item is sold to recover the dues. In the same way in transactions of Mudarabba (partnership) the property given out for trading is also a trust.
Trusts of Shari’a
By trust of Shari’a we mean property which is in possession of a person who is not its actual owner. This property may not have been handed over to him by the owner, but he may come to acquire it through circumstances. For example, a strong wind blows a cloth from a house to the neighbours, or someone’s lost domestic animal may stray into somebody’s house, or one may buy something and find later that the seller has given an extra item by mistake, or the buyer may pay the seller more than the prescribed rate, or one may find some money on the way, or one may come to acquire some stolen goods or those belonging to someone else. All these things are considered as trusts according to Shari’a. It is Wajib to restore them to the rightful owners, those who have them in their possession should not use such items. Another example of such a trust is a letter addressed to another person. It is Wajib upon the person to send it to its rightful addressee. It is Harām to open or read a letter addressed to someone else.
Misappropriating other’s property
If one is in possession of a person’s property through circumstances, it is Harām to embezzle it. As we have already stated, misappropriation is a greater sin.
Misappropriation is a compound of Three sins:
(2) Disregard of an obligatory act and
(3) Illegally using someone’s property
Illegally using someone’s property
It is a sort of injustice to use the property or a thing belonging to someone else without his permission. It is Harām even to borrow something without the permission of the owner. It is Harām to use the thing even for a moment. In fact, even displacing a thing without permission is Harām when there is no valid excuse.
A person using an article without the owner’s permission has to give it back immediately or ask permission for its use. If any damage has occurred to the property the user has to make good the loss.
If one expects that the owner will permit the use of his property, then its use without permission is allowed. But the user will have to compensate in case there is any damage to the property.
A user is not accountable if a property is damaged despite his best efforts to safeguard it, but he will be responsible if the damage is the result of his carelessness.
The 91st verse of Surah at-Tawba says,
“…there is no way (to blame) against the doers of good...”
According to this ayat the trustee who has done a good deed by guarding a property will not be liable for any loss or damage. The one who entrusts has no lawful recourse against the trustee.
Carelessness in guarding the trust
A trustee shall be made to pay for any loss or damage that occurs to the good entrusted to him, if he has not taken reasonable care of the goods or has kept them in an unsafe place. It is also not allowed to hand over the property in ones trust to someone else for safekeeping without the owner’s permission. If the trust is transferred to another person and a loss occurs, then the first trustee shall be held responsible. It will amount to a sort of carelessness on his part. Even if he considers someone else to be a better trustee he cannot move the goods to him without the permission of the owner. In the same way the trustee cannot carry the trust with him when he goes on a journey. The owner’s permission has to be sought in this case also. If the trustee intends to travel, he can keep the property in a safe place, or he can hand it over to another person only with the permission of the owner. However if there is a risk of loss or damage in his absence he must return the trust to its owner or his representatives. If the owner or his representatives are not available, he can surrender the trust property to the Mujtahid or the religious judge or he may avoid travel altogether. But if the journey is more important than the safe-keeping of this trust, and the owner nor representative nor a Mujtahid is available then he can, to ensure its safety keep it with someone reliable. He may even carry it with himself on the journey in such circumstances.
If one is sure that he will not be able to take care of the trust, it is Wajib for him to refuse to accept it. If such a person has already taken it, it is Wajib for him to return it but if in spite of his inability to safeguard the trust property, the owner insists on handing it to him he is allowed to accept it. In this case the trustee cannot be held responsible, and the owner would bear the loss in the event of the goods being lost or damaged. Even if one is compelled to be a trustee against one wishes, it is better to take care of the goods entrusted, as a moral obligation.
It is apparent that this transaction (of one who entrusts and the trustee) is a legal transaction. Either party may terminate the agreement whenever he or she desires. That is, the owner may ask for his property whenever he likes. In the same way the trustee can return the goods in his trust to the owner whenever he wishes. However, it is Wajib for the trustee to return the trust when the owner demands it and the one who entrusts cannot insist upon the trustee to continue to safeguard his goods when he (the trustee) wishes to relieve himself of the responsibility.
Delay in returning the trust
Under special circumstances it is permitted to appropriate the property of a Kafir, not living under the protection of Islamic government. But if such a person gives his property as a trust, it is not permitted to misappropriate this property. If the property to be entrusted is stolen or acquired by illegal means, it is Wajib to accept it and restore it to its rightful owner.
As we have already mentioned, anything that is maintained as trust must be restored to the owner or his representative; like some responsible member of his family, if they are not available, the trust could be given in charge of a Mujtahid or his representative. If even these are not available the trust must be handed over to a reliable person. Especially when one perceives the approach of death one should immediately arrange to return the trusts. If none of the above persons are available then it is Wajib upon the dying person to make a will and provide the address of the owner so that the property may be restored to him.
In the same way if the owner learns that the trustee is dead, it is Wajib for him to go and collect the things that he had deposited as trust. If the heirs of the deceased do not recognise him he can describe the distinguishing features of the trust property and obtain it from them. Similarly if the owner dies, the trustee is under obligation to return the trust to the heirs of the deceased.
Transactions of hire, ariya (free loan), mortgage and partnership
As we have already mentioned, all the goods that are the basis of the above transactions constitute a trust. Whenever the owner demands the property, it has to be restored immediately. However, if a period has been agreed upon, the owner cannot demand his property before the end of the stipulated period. For example, the landlord cannot expel his tenant before the expiry of the agreement of tenancy. Similarly the pledged article cannot be taken back without the repayment of loan. The same is the case with a loaned article.
At the end of the stipulated period the trustees are obliged to return the property that had been in their possession even if the owner has not demanded it back, but if the owner extends the period the trustees can continue to retain the property.
However, ‘Ariya’ is a transaction where the owner is at liberty to demand back his property whenever he likes. For example, someone has borrowed a book for a week but the owner demands it the same day. The borrower, in this case, is obliged to return the book immediately. ‘Ariya’ is just like the keeping of some trust. The owner can ask for it whenever he wants. Even though he may have given it for sometime, he can demand it whenever he likes.
Search for the owner : Sadaqah on his behalf
The above discussion was regarding the property trusts. If someone is in possession of a Sharaii trust and the owner is not known, the finder of a property has to search for him for one whole year. He must publicise it from masjids etc. If the owner is still unlocated he must give all of the found property in charity on behalf of the owner.
The one who entrusts and the trustee should be adults
A transaction of trust is valid only when both the parties are sane and adult. So a child or an insane person cannot entrust their property nor can they act as trustees. However, if the guardian of a child or an insane person permits, the property can be held in trust. Whether the guardian permits or not, if the property of a minor or an insane person held in trust suffer some loss or damage, the trustee has to make good the loss. He has to return it to the guardian and not directly to the minor or insane person. If one finds a minor child or an insane person in possession of something and there is a risk of it being lost or damaged, he can take it from him and deliver it to his guardian.
These are thus some laws regarding trusts. For detailed laws one can refer to the books of jurisprudence. The important thing is to understand the significance of trusts and to avoid the pitfalls of a sin like misappropriation. We shall present one more ayat and a few traditions before closing this chapter.