Ayatul-Dayn, an Ayah regarding lending/borrowing/indebtedness (Surah 2: 282)
Allah says in the Quran,
يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا تَدَايَنْتُمْ بِدَيْنٍ إِلَىٰ أَجَلٍ مُسَمًّى فَاكْتُبُوهُ ۚ وَلْيَكْتُبْ بَيْنَكُمْ كَاتِبٌ بِالْعَدْلِ ۚ وَلَا يَأْبَ كَاتِبٌ أَنْ يَكْتُبَ كَمَا عَلَّمَهُ اللَّهُ ۚ فَلْيَكْتُبْ وَلْيُمْلِلِ الَّذِي عَلَيْهِ الْحَقُّ وَلْيَتَّقِ اللَّهَ رَبَّهُ وَلَا يَبْخَسْ مِنْهُ شَيْئًا ۚ فَإِنْ كَانَ الَّذِي عَلَيْهِ الْحَقُّ سَفِيهًا أَوْ ضَعِيفًا أَوْ لَا يَسْتَطِيعُ أَنْ يُمِلَّ هُوَ فَلْيُمْلِلْ وَلِيُّهُ بِالْعَدْلِ ۚ وَاسْتَشْهِدُوا شَهِيدَيْنِ مِنْ رِجَالِكُمْ ۖ فَإِنْ لَمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌ وَامْرَأَتَانِ مِمَّنْ تَرْضَوْنَ مِنَ الشُّهَدَاءِ أَنْ تَضِلَّ إِحْدَاهُمَا فَتُذَكِّرَ إِحْدَاهُمَا الْأُخْرَىٰ ۚ وَلَا يَأْبَ الشُّهَدَاءُ إِذَا مَا دُعُوا ۚ وَلَا تَسْأَمُوا أَنْ تَكْتُبُوهُ صَغِيرًا أَوْ كَبِيرًا إِلَىٰ أَجَلِهِ ۚ ذَٰلِكُمْ أَقْسَطُ عِنْدَ اللَّهِ وَأَقْوَمُ لِلشَّهَادَةِ وَأَدْنَىٰ أَلَّا تَرْتَابُوا ۖ إِلَّا أَنْ تَكُونَ تِجَارَةً حَاضِرَةً تُدِيرُونَهَا بَيْنَكُمْ فَلَيْسَ عَلَيْكُمْ جُنَاحٌ أَلَّا تَكْتُبُوهَا ۗ وَأَشْهِدُوا إِذَا تَبَايَعْتُمْ ۚ وَلَا يُضَارَّ كَاتِبٌ وَلَا شَهِيدٌ ۚ وَإِنْ تَفْعَلُوا فَإِنَّهُ فُسُوقٌ بِكُمْ ۗ وَاتَّقُوا اللَّهَ ۖ وَيُعَلِّمُكُمُ اللَّهُ ۗ وَاللَّهُ بِكُلِّ شَيْءٍ عَلِيمٌ -
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. Let no scribe refuse to write as Allah has taught him. So let him write and let the one who has the obligation dictate. And let him fear Allah , his Lord, and not leave anything out of it. But if the one who has the obligation is of limited understanding or weak or unable to dictate himself, then let his guardian dictate in justice. And bring to witness two witnesses from among your men. And if there are not two men [available], then a man and two women from those whom you accept as witnesses - so that if one of the women errs, then the other can remind her. And let not the witnesses refuse when they are called upon. And do not be [too] weary to write it, whether it is small or large, for its [specified] term. That is more just in the sight of Allah and stronger as evidence and more likely to prevent doubt between you, except when it is an immediate transaction which you conduct among yourselves. For [then] there is no blame upon you if you do not write it. And take witnesses when you conclude a contract. Let no scribe be harmed or any witness. For if you do so, indeed, it is [grave] disobedience in you. And fear Allah. And Allah teaches you. And Allah is Knowing of all things. (Surah Baqarah 2:282)
This is the basis of the rule that the time for the repayment of a loan should be fixed at the time when the loan is transacted. When friends and relatives borrow from one another it is generally considered unseemly either to commit these loans to writing, or to have them attested by witnesses. Such an act is considered a sign of distrust. But Allah enjoins that whenever loans or business transactions take place, their conditions should be recorded in black and white and should be attested by witnesses so that there remains no ground for misunderstanding or dispute.
Let us now take a closer look at the principles that Islam establishes with respect to loans: “Believers, when you contract a debt for a fixed term, put it in writing, and let a scribe write it down for you with fairness.” (Ayah 282) The general rule, therefore, is that details of all fixed-term loans must be in writing, for reasons that will become clear later, and that a third party must do the recording in order to ensure total impartiality and fairness. The writer is required to record the agreed terms of the loan faithfully, without interference, bias or prejudice. He is obliged to do his job fully and competently as a duty to God who has blessed him with the ability to write, and for which he will be appropriately rewarded: “No scribe shall refuse to write as God has taught him. So he shall write.” (Ayah 282) Having established that the terms of loans should be committed to writing by an independent document writer, the sūrah goes on to explain how the writing should be carried out: “... and let the one who incurs the liability i.e. the debtor] dictate; and [in so doing] let him be conscious of God his Lord and not diminish anything of it. If he who incurs the liability is weak of mind or body, or unable to dictate himself, then let his guardian dictate with fairness.” (Ayah 282) The party incurring the liability, the borrower, is the one to dictate to the writer, acknowledging the amount borrowed and his commitment to the terms and conditions of the loan, as a safeguard against any injustice to him. As the weaker party to the transaction, he would be less liable to alter the terms and conditions. This would reinforce the borrower’s commitment to the liability. For, were the creditor to dictate, there would be no guarantee that he might not tamper with the terms and conditions of the loan to his advantage. Furthermore, the sūrah appeals to the borrower’s conscience to be scrupulous and faithful in dictating the terms of the loan. It goes on to advise that if the borrower is feeble-minded, under age, or unable to dictate through ignorance or an impediment of speech, or any other reason, his guardian, attorney or trustee, may do so on his behalf, showing the same, if not greater, scrupulous fairness. The sūrah gives detailed instructions concerning the witnessing of the contract: “Call in two of your men to act as witnesses, but if two men are not available, then a man and two women, whom you consider acceptable as witnesses, so that if either of them should make a mistake, the other will remind her.” (Ayah 282) For the contract to be valid, it must be witnessed by two men or, if these are not readily available, one man and two women, all of whom should be of good standing in the community and deemed “acceptable as witnesses” by both parties. The reason for recommending men witnesses in the first instance is that, in a Muslim society, the majority of marketplace attendants are normally men, since women, generally, do not have to seek work to earn a living and their main preoccupation is the family home and the raising of society’s new generation. Nevertheless, if two men cannot be found to witness a contract, a man and two women will do. But why two women? Since this is a legal matter, the sūrah does not leave the answer to speculation; and explains: “... so that if either of them should make a mistake, the other will remind her.” (Ayah 282) Such a mistake may occur for a number of reasons, such as lack of experience or knowledge, or failure to understand the subject matter or the ramifications of the contract. A woman’s impulsive nature tends to make her impressionable and more easily influenced or swayed. This emotional, sympathetic nature is necessary and, indeed, advantageous for women in their role as mothers. Human nature being indivisible, it would be present whenever women are called upon to witness or judge anything requiring deliberation, reflection and strict impartiality. Having two women rather than one, provides a greater assurance that they will balance each other and provide an objective testimony.
The sūrah calls on people not to refuse to act as witnesses if invited to do so, as it did with the writer earlier, saying: “Witnesses must not refuse when they are called in.” (Ayah 282) It is an obligation, rather than a privilege, because it is a means of establishing justice and preserving rights. Witnesses must carry out their duty willingly, honestly and without any condescension or deference towards either of the parties. The sūrah moves on to another, more general, aspect of legal and business transactions: “Do not be averse to writing down debts, be they small or great, together with the time when they fall due; that is more equitable in the sight of God and lends greater credence to the testimony and is more likely to spare you any doubt.” (Ayah 282) The text displays a remarkable perception of human nature, as people are often inclined to judge that certain small debt transactions are not worth writing down, but the sūrah stresses the fact that recording all debt transactions is seen by God as preferable and more fair. A written contract gives greater force to the testimony of the witnesses, since a written statement carries more weight than one based totally on memory, and it “is more likely to spare you any doubt”. Thus, the wisdom underlying these instructions becomes clear and they appear more convincing, practical and reassuring. In spot trading, executed immediately and frequently, there is no need for writing dawn the details and the mere presence of witnesses will suffice: “In the case of a commercial deal transacted on the spot, you shall incur no sin by not writing it down. Have witnesses when you make business deals.” (Ayah 282) At face value, the statement seems to allow the concession of not recording spot transactions while making it a condition that witnesses should be present; but, according to some considered opinion, the latter is strongly recommended rather than obligatory. Nevertheless, the weightier view is that witnesses are necessary for spot trading as well.
The sūrah proceeds to specify the rights of contract writers and witnesses, assuring them of the protection they deserve: “But let no harm be suffered by scribe or witness; if you do [harm them], that is sinful on your part. Have fear of God, for it is God who teaches you. God has knowledge of all things.” (Ayah 282) Scribes and witnesses should come to no harm in the course of fulfilling their obligations towards God, and any wrongdoing they may suffer would be a gross violation of God’s law. This is a necessary precaution, for scribes and witnesses often incur the displeasure of one or the other of the contracting parties and must, therefore, be protected and reassured so that they fulfil their obligations fairly, honestly and with absolute objectivity. Finally the sūrah, in keeping with the Qur’ānic way of igniting the inner powers of the human conscience, calls on believers to fear God and reminds them of His grace and favour in giving them knowledge and understanding, so that they may conduct their affairs in accordance with His will and guidance: “Have fear of God, for it is God who teaches you. God has knowledge of all things.” (Ayah 282)
Source: Quran, In the shade of the Quran, Tafseer Ibn Kathir
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