Multiple Hawala Transactions in Islamic Jurisprudence: "A Comparative Fiqh Study"

Abstract

The research focuses on the concept of transfer (Hawala) and its types in Islamic jurisprudence. We discuss the transfer of rights and the transfer of debts, as well as the conditions for the validity of both types, which include notifying the debtor of the transfer, acceptance, consent and its definition, and its conditions, as well as the effect of the transfer of rights on the relationship between the transferor and the transferee, such as the transfer of rights, among others. The fundamental principle in Islamic jurisprudence is that in order for there to be a clash between rights, there must be unity in the identity of the person acting. For instance, there is no clash between a mortgage from the true owner and a mortgage from an unauthorized person, as some believe that the mortgage issued by the unauthorized person is dependent on the approval of the true owner; if approved, the mortgage is valid, and if not, it is void. The transfer occupies the liability of the transferee with a right that was established by the transfer for the transferee. There is a disagreement regarding the nature of this liability: whether it involves the transfer of the debt, a claim to it, or merely a new liability without transfer. The important point is that a transfer, which results in a release of the transferor's liability regardless of the type and degree of this release, has created an obligation in the liability of the transferee.