USURY

Arabic ribā ( ربا‎ ). A word which, like the Hebrew ‏נֶשֶׁךְ‎ neshek , includes all gain upon loans, whether from the loan of money, or goods, or property of any kind. In the Mosaic law, conditions of gain for the loan of money or goods, were rigorously prohibited: “If thou lend money to any of my people that is poor by thee, thou shalt not be to him as an usurer, neither shalt thou lay upon him usury.” ( Exodus xxii. 25 .) “If thy brother be waxen poor … take no usury of him or increase: but fear thy God; that thy brother may live with thee. Thou shalt not give him thy money upon usury, nor lend him thy victuals for increase.” ( Levitic us xxv. 35–37 .) (1) The teaching of the Qurʾān on the subject is given in Sūrah ii. 276 : “They who swallow down usury, shall arise in the Last Day only as he ariseth, whom Satan has infected by his touch. This for that they say, ‘Selling is only the like of usury,’ and yet God hath allowed selling and forbidden usury; and whosoever receiveth this admonition from his Lord, and abstain eth from it , shall have pardon for the past and his lot shall be with God. But they who return to usury, shall be given over to the Fire,—therein to abide for ever.” (2) In the Traditions, Muḥammad is related to have said:— “Cursed be the taker of usury, the giver of usury, the writer of usury, and the witne of usury, for they are all equal.” “Verily the wealth that is gained in usury, although it be great, is of small advantage.” ( Ṣaḥīḥu Muslim, Bābu ʾr-Ribaʾ ). (3) Ribaʾ , in the language of the law, signifies “an exce ,” according to a legal standard of measurement or weight , in one of two homogeneous articles (of weight or measurement of capacity) opposed to each other in a contract of exchange, and in which such exce is stipulated as an obligatory condition on one of the parties, without any return , that is, without anything being opposed to it. The sale, therefore, of two loads of barley, for instance, in exchange for one load of wheat, does not constitute usury, since these articles are not homogeneous ; and, on the other hand, the sale of ten yards of cloth in exchange for five yards of cloth, is not usury, since although these articles be homogeneous, still they are not estimable by weight or measurement of capacity. Usury, then, as an illegal transaction, is occasioned (according to most Muḥammadan doctors) by rate , united with species , where, however, it must be observed, that rate , amongst the Musalmāns, applies only to articles of weight or measurement of capacity, and not to articles of longitudinal measurement, such as cloth, ., or of tale, such as eggs, dates, walnuts, ., when exchanged from hand to hand. Ash-Shāfiʿī maintains that usury takes place only in things of an esculent nature, or in money, and according to him, therefore, articles of the last-mentioned description would give occasion to usury. It is, furthermore, to be observed, that superiority or inferiority in the quality has no effect in the establishment of the usury; and hence it is lawful to sell a quantity of the better sort of any article in exchange for an equal quantity of an inferior sort. Nor does usury exist where the qualities of an article of weight or measurement by capacity are not ascertained by some known standard of measurement. Thus it is lawful to sell one handful of wheat in exchange for two handfuls, or two handfuls for four, because, in such case, the measurement not having been made according to a legal standard, the superiority of measurement, establishing usury, has not taken place, and, since the law has fixed no standard of measure beneath half a ṣāʿ , any quantity le than such is considered equivalent to a handful. Where the quality of being weighable or measure able by capacity, and correspondence of species (being the causes of usury) both exist, the stipulation of inequality or of suspension of payment to a future period, are both usurious. Thus it is usurious to sell either one measure of wheat in exchange for two measures,—or one measure of wheat for one measure deliverable at a future period. If, on the contrary, neither of these circumstances exist (as in the sale of wheat for money), it is lawful, either to stipulate a superiority of rate, or the payment at a future period. If, on the other hand, one of these circumstances only exist (as in the sale of wheat for barley, or the sale of one slave for another), then a superiority in the rate may legally be stipulated, but not a suspension in the payment. Thus one measure of wheat may lawfully be sold for two measures of barley, or one slave for two slaves: but it is not lawful to sell one measure of wheat for one measure of barley, payable at a future period; nor one slave for another, deliverable at a future period. According to the majority of doctors, everything in which the usuriousne of an exce has been established by the Prophet on the ground of measurement of capacity (such as wheat, barley, dates and salt), or on the ground of weight (like gold or silver), is for ever to be considered as of that nature, although mankind should forsake this mode of estimation; because the custom of mankind, which regulates the measurement, is of inferior force to the declaration of the Prophet; and a superior court cannot yield to an inferior. Abū Yūsuf, however, is of opinion that in all things practice or custom ought to prevail, although in opposition to the ordinances of the Prophet; for the ordinance of the Prophet was founded on usage and practice of his own time. In ordinances, therefore, the prevalent customs among mankind are to be regarded; and as these are liable to alter, they must be attended to rather than the letter of an ordinance. Usury cannot take place between a master and his slave, because whatever is in the po e ion of the slave is the property of the master, so that no sale can po ibly take place between them, and hence the po ibility of usury is excluded à fort i or i . Nor can it take place between a Muslim and a hostile infidel in a hostile country, in accordance with the saying of the Prophet: “There is no usury between a Muslim and a hostile infidel in a foreign land,” and on the further ground, that the property of a hostile infidel being free to the Muslim, it follows that it is lawful to take it by whatever mode may be po ible, provided there be no deceit used. It is otherwise with respect to a ẕimmī , or protected alien, as his property is not of a neutral nature, because of the protection that has been accorded to him, and, therefore, usury is as unlawful in his case as in that of a Muslim. Abū Yūsuf and ash-Shāfiʿī conceive an analogy between the case of a hostile infidel, in a hostile country, and that of a ẕimmī , and hence they hold, contrary to the other Muslim doctors, that usury can take place also between a Muslim and a hostile infidel in a foreign land. The testimony of a person who receives usury is inadmi ible in a court of law. It is recorded in the Mabsūt̤ , however, that the evidence of a usurer is inadmi ible only in case of his being so in a notorious degree; because mankind often make invalid contracts, and these are in some degree usurious. ( Hidāyah , Grady’s edition, p. 362.) For further information on the subject of usury and for cases, illustrative of the above-stated principles, see Hidāyah , Hamilton’s translation, vol. ii., p. 489 seqq .; Grady’s edition, p. 289 seqq . ; the Durru ʾl-Muk͟htār ; the Fatāwā-i-ʿĀlamgīrī , in loco .