Most scholars stipulate that zakah is not payable on anything
extracted from the sea, such as pearls, corals, chrysalite,
cachalot's ambergris, fish, and so on. There is, however, a
report from Ahmad that if the amount extracted reaches a nisab,
then zakah is due on it. Abu Yusuf agrees with him in the case
of pearls and cachalot's ambergris. Ibn 'Abbas holds that
there is no zakah of cachalot, beacause it is an object thrown
out by the sea. Jabir said that there is no zakah on cachalot,
but that it is a free spoil for anyone who finds it.
When a person acquires property and it stays in his
possession for a year and constitutes a nisab, and he has no
other property or he has similar property which has not
reached a nisab except when the acquired property has been
added to it, then the year hawl of zakah becomes applicable to
it from the time of its acquisition. The zakah will be payable
at the completion of the hawl. In such a case, the acquired
property may be classified in any of the following categories:
-1- The acquired holdings increase in value either by
profits from trade or by an increase in animal production.
These kinds of holdings qualify themselves for the application
of the hawl and zakah. For the individual whose merchandise or
animals constitute a nisab and whose business also makes a
profit or whose animals reproduce during the course of the
hawl, he should count the original and additional property as
one for the purpose of zakah. There is no dispute about this
among scholars.
-2- As for the acquired property which falls under the same
category as the attained nisab but is not derived or generated
from it--that is, it was acquired through purchase, gift, or
inheritance-- Abu Hanifah holds that this may be combined with
the nisab in order to become a part of it with regard to the
hawl and payment of zakah. Thus, the principal property and
the profits are collectively taxable.
Ash-Shaf'i and Ahmad suggest that newly acquired property
be combined with the original one for the purpose of attaining
a nisab and that a new hawl has to be assumed for it--whether
the original consists of cash or animals. For example, if
someone has 200 dirhams and manages to acquire another 200
dirhams during the year, he should pay zakah on both at the
completion of the hawl which will begin to roll at the
acquisition of new property. Malik's opinion is like that of
Abu Hanifah's concerning animals but like Ahmad's in regard to
gold and silver.
-3- The acquired holdings are not of the same kind that one
already possesses. As such, they cannot be combined with the
original either for the nisab or for the year count (hawl).
If, however, the acquired holdings by themselves reach a nisab,
their year count will be calculated independently, and the
owner will pay their zakah at the completion of the hawl. In
the absence of these conditions, nothing is applicable to
these holdings. This is the opinion of the majority of
scholars.
The Hanafiyyah, the Malikiyyah, and a report from ash-Shaf'i
and Ahmad propose that it is the property which owes zakah.
The second opinion attributed to ash-Shaf'i and Ahmad is that
zakah is the responsibility of the owner, not the property.
The difference between the two opinions is obvious:
For example, someone had 200 dirhams and did not pay zakah
on the sum for two years. The opinion which says that zakah is
due on the property itself means that the amount due is for
one year only since it decreased by five dirhams, which was
the amount due for zakah at the end of the first year. The
second opinion, that zakah is the responsibility of the owner,
means that he should pay zakah twice, one for each year, as
zakah is the responsibility of the owner and is not affected
by the decrease of the nisab.
Ibn Hazm favors the view that it is the owner's
responsibility. There has been no difference of opinion, he
says, among the Muslims since the time of the Prophet, upon
whom be peace, down to his time as to the applicability of
zakah on wheat, barley, dates, silver, gold, camels, cattle,
and sheep. Concerning payment of zakah from a different lot of
wheat, barley, dates, gold, silver, camels, cattle, and sheep,
he says it does not matter whether one pays it from the same
lot, from a different one in one's possession, or from a lot
that may be bought, granted as a gift, or borrowed.
The conviction that the payment of zakah is the owner's
responsibility and is not necessarily that of the property
itself is a sound principle, for if it becomes due on the
property itself, the owner will not be permitted to make
payment from a different lot. It is similar to the case of one
partner being prevented from giving his money to his copartner
from a source other than the one involved in their
partnership--unless the partners approve of it and it does not
violate the conditions of the transaction between them.
Furthermore, if zakah has to be applied to the property
itself, only two situations can arise. First, zakah is payable
on all parts of that property and is applicable to any
individual amount of it, without individual specification.
Second, if it is applicable to every part of it, it is
impermissible to sell from any herd or grain since zakah
collectors in this case would become partners. Thus, the
proprietor is not allowed to take anything from it. This is
void without any dispute. Furthermore, it would become
obligatory upon him to specify exactly the price of the sheep
which he desires to take out, just as is done in partnerships.
If zakah is due on any part of it other than the property
itself, it becomes void. This holds true in such a case since
he does not know what he might sell or whether he is taking
what is due for the sadaqah collectors. This, in turn, backs
up the above.
Once zakah becomes payable on the holdings either because
of the completion of a year or harvest time, and the holdings
or part of them are lost, the owner still has to pay it.
Whether the loss occured owing to negligence or not does not
matter.
This is the opinion of Ibn Hazm and the better opinion of
the Hanbaliyyah. Abu Hanifah holds that it vitiates the
payment of zakah if all the property perishes without the
owner's role in its destruction. When part of it perishes, the
perished portion is not subject to zakah. This is in
accordance with the rule that zakah is associated with the
property itself. However, when the property is deliberately
destroyed by the owner, zakah has to be paid. Ash-Shaf'i,
alHassan ibn Salih, Ishaq, Abu Thaur, and Ibn al-Munzhir hold
that if the nisab perishes before zakah is paid, then the
owner owes nothing. However, if it perishes subsequent to the
accumulation of the nisab, the owner has to pay it. Ibn
Qudamah supports this view and says it vitiates the payment of
zakah if the property perishes without any negligence on the
part of the owner. This is because it is obligatory for the
sake of beneficence, which presupposes the existence of the
property--and not with the purpose of impoverishing the payers
of zakah.
Negligence in this context implies that the owner had
accumulated the nisab and thus it was possible for him to pay
zakah, but he did not and the property perished. On the
contrary, if he did not have the nisab, or the holdings were
not in his possession, or they were to be purchased and he
could not, then this does not constitute an act of negligence.
Likewise, if it is presumed that the obligation to pay
zakah remains even after the holdings are lost, and the owner
has the means to pay it, then he must do so. Otherwise, he
should be granted a respite in order to fulfill his obligation
to pay zakah. This is akin to a debt one owes to someone but
the debt owed to Allah should be considered more important.
When a person sets aside zakah for distribution among the
poor and all of it or some of it is lost, he must repay it
because it is still his responsibility.
Ibn Hazm says: "We received a narration from Ibn Abi
Shaibah on the authority of Hafs ibn Ghayath, Jarir, al-Mu'tamir
ibn Sulaiman at-Taymi, Zaid ibn al-Hubab, and 'Abdulwahhab ibn
'Ata; also from Hafs, who narrated on the authority of Hisham
ibn Hassan from al-Hassan al-Basri; Jarir who reported, on the
authority of alMughirah from his companions; and al-Mu'tamir
who reported from Mu'amar from Hammad; and Zaid who reported
from Shu'bah from al-Hakam; and 'Abdulwahhab who reported on
the authority of Ibn Abi 'Urubah from Hammad from Ibrahim an-Nakha'i
that whoever sets aside zakah from his property and then it is
lost, his obligation to pay zakah still remains to be
discharged, and he must set it aside again."
There exists, however, another opinion on it: "We
received a narration on the authority of 'Ata' that the
obligation will be discharged [if set aside and lost],"
says Ibn Hazm.
Ash-Shaf'i holds that anyone who does not pay zakah for a
number of years must pay it all together. Whether or not he is
aware of its obligation or he happens to be in a Muslim or
non-Muslim land, makes no difference. Based on the opinion of
Malik, ash-Shaf'i and Abu Thaur, Ibn al-Munzhir says:
"When unjust people rule a country and the people of that
country do not pay their zakah for a number of years, then
their new leader should take it from them."
It is not permissible to pay the value instead of the item
itself, except in the case of non-existence, for zakah is an
act of worship which can only be fulfilled according to the
specified manner, with the rich sharing their wealth with the
poor
Mu'azh reported that the Prophet, upon whom be peace, sent
him to Yemen and told him: "Take grain from grain, sheep
from sheep, camels from camels, and cows from cows." This
hadith is narrated by Abu Dawud, Ibn Majah, al-Baihaqi, and
al-Hakim. It should be noted that there is an interruption in
the chain of this hadith, since 'Ata' did not hear it from
Mu'azh.
Disapproving of substitution, ash-Shaukani says: "The
truth of the matter is that zakah is obligatory on the item
itself and should not be substituted for its value except
where there is a valid excuse."
Abu Hanifah permits the acceptance of the value whether the
individual owing could pay it in the items itself or not
because zakah is the right of the poor, and he believed that
it made no difference whether it was paid in the item or in
something else of equal value. AlBukhari reports, with a firm
statement, that Mu'azh asked the people of Yemen to give him
either goods or clothes of silk or garments as zakah instead
of barley and corn because it was more convenient for them.
The companions of the Prophet, upon whom be peace, were also
given the choice in Madinah.
When holdings are shared between two or more partners,
zakah is not obligatory on either one until all of them attain
a nisab individually. This is the opinion of most scholars.
This does not include the combination of animals, which has
been discussed earlier.
The opinion of Malik, al-Auza'i, Ishaq, Ahmad, and Abu 'Ubaid
is that whoever possesses a nisab of any kind of property and
then sells it before the completion of the year hawl, or gives
it away as a gift, or damages part of it with the intention of
avoiding its zakah, he still must pay its zakah. If he engages
himself in any of the preceding acts at a time when his
obligation to pay zakah is about to mature, he will be forced
to pay it. If, however, any of the preceding acts happen at
the beginning of the hawl, this will not constitute an
evasion, and he will be (legally) free from his obligation to
pay zakah.
Abu Hanifah and ash-Shaf'i hold that since the amount
decreased before the end of the hawl, zakah will not be paid
on it. He would still be considered a wrongdoer and
disobedient to Allah for attempting to escape it. The early
Muslims based their rationale on the 'ayahs in which Allah,
the Exalted One, says: "Lo! We have tried them as We
tried the owners of the garden when they vowed they would
pluck its fruit the next morning, and made no reservation [for
the will of Allah]. Then a visitation from your Lord came upon
it while they were asleep. So the garden became a dark and
desolate spot in the morning, as if it were plucked" [alMulk
17-20]. Allah punished those people for avoiding their
obligation to the poor.
Zakah, as such, will still be due and the person has to pay
it because his intention was to deprive the poor of their
share in his wealth. This would be similar to the case of a
man who divorces his wife during his terminal illness. His
evil intention calls for punishment as a redemptive act.
Another case of a similar nature would be that of a person who
kills his benefactor so that he could have his inheritance. In
that case, Allah punishes him by depriving him of his
inheritance.
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