Written Contracts and witnesses in Business Dealings

Sura-2 [Al-Baqara medina 87]

The Quranic text and Ali’s version

يَا أَيُّهَا الَّذِينَ آمَنُواْ ...

2:282. O ye who believe!

... إِذَا تَدَايَنتُم بِدَيْنٍ إِلَى أَجَلٍ مُّسَمًّى فَاكْتُبُوهُ...

when ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing.

C329. The first part of the verse deals with transactions involving future payment or future consideration, and the second part with transactions in which payment and delivery are made on the spot.

Examples of the former are if goods are bought now and payment is promised at a fixed time and place in the future, or if cash is paid now and delivery is contracted for at a fixed time and place in the future. In such cases a written document is recommended, but it is held that the words later on in this verse, that it is "juster . . . more suitable as evidence, and more convenient to prevent doubts", etc. imply that it is not obligatory in law.

Examples of the latter kind - cash payment and delivery on the spot - require no evidence in writing, but apparently oral witnesses to such transactions are recommended.

... وَلْيَكْتُب بَّيْنَكُمْ كَاتِبٌ بِالْعَدْلِ...

Let a scribe write down faithfully as between the parties:

... وَلاَ يَأْبَ كَاتِبٌ أَنْ يَكْتُبَ كَمَا عَلَّمَهُ اللّهُ ...

let not the scribe refuse to write, as Allah has taught him,

C330. The scribe in such matters assumes a fiduciary capacity: he should therefore remember to act as in the presence of Allah, with full justice to both parties. The art of writing he should look upon as a gift from Allah, and he should use it as in His service.

In an illiterate population the scribe's position is still more responsible.

... فَلْيَكْتُبْ وَلْيُمْلِلِ الَّذِي عَلَيْهِ الْحَقُّ وَلْيَتَّقِ اللّهَ رَبَّهُ وَلاَ يَبْخَسْ مِنْهُ شَيْئًا...

so let him write. Let him who incurs the liability dictate, but let him fear his Lord Allah,

and not diminish aught of what he owes.

... فَإن كَانَ الَّذِي عَلَيْهِ الْحَقُّ سَفِيهًا أَوْ ضَعِيفًا...

If the party liable is mentally deficient, or weak,

... أَوْ لاَ يَسْتَطِيعُ أَن يُمِلَّ هُوَ فَلْيُمْلِلْ وَلِيُّهُ بِالْعَدْلِ...

or unable himself to dictate, let his guardian dictate faithfully.

C331. Possibly the person "mentally deficient, or weak, or unable to dictate", may also be incapable of making a valid contract, and the whole duty would be on his guardian, who again must act in perfect good faith, not only protecting but vigilantly promoting the interests of his ward.

... وَاسْتَشْهِدُواْ شَهِيدَيْنِ من رِّجَالِكُمْ...

And get two witnesses, out of your own men,

C332. It is desirable that the men (or women) who are chosen as witness should be from the circle to which the parties belong, as they would best be able to understand the transaction, and be most easily available if their evidence is required in future.

... فَإِن لَّمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌ وَامْرَأَتَانِ...

and if there are not two men, then a man and two women,

... مِمَّن تَرْضَوْنَ مِنَ الشُّهَدَاء أَن تَضِلَّ إْحْدَاهُمَا فَتُذَكِّرَ إِحْدَاهُمَا الأُخْرَى...

such as ye choose, for witnesses, so that if one of them errs, the other can remind her.

... وَلاَ يَأْبَ الشُّهَدَاء إِذَا مَا دُعُواْ...

The witnesses should not refuse when they are called on (for evidence).

... وَلاَ تَسْأَمُوْاْ أَن تَكْتُبُوْهُ صَغِيرًا أَو كَبِيرًا إِلَى أَجَلِهِ...

Disdain not to reduce to writing (your contract) for a future period, whether it be small or big:

... ذَلِكُمْ أَقْسَطُ عِندَ اللّهِ وَأَقْومُ لِلشَّهَادَةِ وَأَدْنَى أَلاَّ تَرْتَابُواْ...

it is juster in the sight of Allah, more suitable as evidence, and more convenient to prevent doubts among yourselves;

... إِلاَّ أَن تَكُونَ تِجَارَةً حَاضِرَةً تُدِيرُونَهَا بَيْنَكُمْ فَلَيْسَ عَلَيْكُمْ جُنَاحٌ أَلاَّ تَكْتُبُوهَا...

but if it be a transaction which ye carry out on the spot among yourselves, there is no blame on you if ye reduce it not to writing.

... وَأَشْهِدُوْاْ إِذَا تَبَايَعْتُمْ وَلاَ يُضَآرَّ كَاتِبٌ وَلاَ شَهِيدٌ...

But take witnesses whenever ye make a commercial contract; and let neither scribe nor witness suffer harm.

... وَإِن تَفْعَلُواْ فَإِنَّهُ فُسُوقٌ بِكُمْ ...

If ye do (such harm), it would be wickedness in you.

... وَاتَّقُواْ اللّهَ وَيُعَلِّمُكُمُ اللّهُ وَاللّهُ بِكُلِّ شَيْءٍ عَلِيمٌ ﴿٢٨٢﴾

So fear Allah; for it is Allah that teaches you. And Allah is well acquainted with all things.

C333. Commercial morality is here taught on the highest plane and yet in the most practical manner, both as regards the bargains to be made, the evidence to be provided, the doubts to be avoided, and the duties and rights of scribes and witnesses.

Probity even in worldly matters is to be, not a mere matter of convenience or policy, but a matter of conscience and religious duty. Even our every-day transactions are to be carried out as in the presence of Allah.

Asad’s Version:

2:282 O YOU who have attained to faith! Whenever you give or take credit[269] for a stated term, set it down in writing. And let a scribe write it down equitably between you; and no scribe shall refuse to write as God has taught him: [270] thus shall he write. And let him who contracts the debt dictate; and let him be conscious of God, his Sustainer, and not weaken anything of his undertaking. [271] And if he who contracts the debt is weak of mind or body, or, is not able to dictate himself, [272] then let him who watches over his interests dictate equitably. And call upon two of your men to act as witnesses; and if two men are not available, then a man and two women from among such as are acceptable to you as witnesses, so that if one of them should make a mistake, the other could remind her. [273] And the witnesses must not refuse [to give evidence] whenever they are called upon. And be not loath to write down every contractual provision, [274] be it small or great, together with the time at which it falls due; this is more equitable in the sight of God, more reliable as evidence, and more likely to prevent you from having doubts [later]. If, however, [the transaction] concerns ready merchandise which you transfer directly unto one another, you will incur no sin if you do not write it down. And have witnesses whenever you trade with one another, but neither scribe nor witness must suffer harm; [275] for if you do [them harm], behold, it will be sinful conduct on your part. And remain conscious of God, since it is God who teaches you [herewith] - and God has full knowledge of everything.

Pickthall’s version

O ye who believe! When ye contract a debt for a fixed term, record it in writing. Let a scribe record it in writing between you in (terms of) equity. No scribe should refuse to write as Allah hath taught him, so let him write, and let him who incurreth the debt dictate, and let him observe his duty to Allah his Lord, and diminish naught thereof. But if he who oweth the debt is of low understanding, or weak, or unable himself to dictate, then let the guardian of his interests dictate in (terms of) equity. And call to witness, from among your men, two witnesses. And if two men be not (at hand) then a man and two women, of such as ye approve as witnesses, so that if the one erreth (through forgetfulness) the other will remember. And the witnesses must not refuse when they are summoned. Be not averse to writing down (the contract) whether it be small or great, with (record of) the term thereof. That is more equitable in the sight of Allah and more sure for testimony, and the best way of avoiding doubt between you; save only in the case when it is actual merchandise which ye transfer among yourselves from hand to hand. In that case it is no sin for you if ye write it not. And have witnesses when ye sell one to another, and let no harm be done to scribe or witness. If ye do (harm to them) lo! it is a sin in you. Observe your duty to Allah. Allah is teaching you. And Allah is Knower of all things.

[[Asad’s notes :-

269 The above phrase embraces any transaction on the basis of credit, be it an outright

loan or a commercial deal. It relates (as the grammatical form tadayantum shows) to both the giver and taker of credit, and has been rendered accordingly.

270 I.e., in accordance with the laws promulgated in the Qur'an.

271 Lit., "and do not diminish anything thereof". Thus, the formulation of the undertaking is left to the weaker party, i.e., to the one who contracts the debt.

272 E.g., because he is physically handicapped, or does not fully understand the business terminology used in such contracts, or is not acquainted with the language in which the contract is to be written. The definition "weak of mind or body" (lit., "lacking in understanding or weak") applies to minors as well as to very old persons who are no longer in full possession of their mental faculties.

273 The stipulation that two women may be substituted for one male witness does not imply any reflection on woman's moral or intellectual capabilities: it is obviously due to the fact that, as a rule, women are less familiar with business procedures than men and, therefore, more liable to commit mistakes in this respect (see 'Abduh in Manar 111, 1 24 f).

274 Lit., "to write it down" - i.e., all rights and obligations arising from the contract. 275 E.g., by being held responsible for the eventual consequences of the contract as such, or for the non-fulfilment of any of its provisions by either of the contracting parties. ]]

Transliteration a_ ayyuhal lazina a_manu_ iza_ tada_yantum bi dainin ila_ ajalim musamman faktubu_h(u), walyaktub bainakum ka_tibum bil'adl(i), wa la_ ya'ba_ka_tibun ay yaktuba kama_'allamahulla_hu falyaktub, walyumlilil lazi 'alaihil haqqu wal yattaqilla_ha rabbahu_ wa la_ yabkhas minhu syai'a_(n), fa in ka_nal lazi'alaihil haqqu safihan au da'ifan au la_ yastati'u ay yumilla huwa fal yumlil waliyyuhu_ bil 'adl(i), wastasyhidu_ syahidaini mir rija_likum, fa illam yaku_na_ rajulaini fa rajuluw wamra'ata_ni mimman tardauna minasy syuhada_'i an tadilla ihda_huma_ fa tuzakkira ihda_humal ukhra_, wa la_ ya'basy syuhada_'u iza_ ma_ du'u_, wa la_ tas'amu_ an taktubu_hu sagiran au kabiran ila_ ajalih(i), za_likum aqsatu 'indalla_hi wa aqwamu lisy syaha_dati wa adna_ alla_ tarta_bu_ illa_ an taku_na tija_ratan ha_diratan tudiru_naha_ bainakum fa laisa 'alaikum juna_hun alla_ taktubu_ha_, wa asyhidu_ iza_ taba_ya'tum, wa la_ yuda_rra ka_tibuw wa la_ syahid(un), wa in taf'alu_ fa innahu_ fusu_qum bikum, wattaqulla_h(a), wa yu'allimukumulla_h(u), walla_hu bi kulli syai'in'alim(un).

2: 283

Yusuf Ali If ye are on a journey and cannot find a scribe a pledge with possession (may serve the purpose). And if one of you deposits a thing on trust with another let the trustee (faithfully) discharge his trust and let him fear his Lord. Conceal not evidence; for whoever conceals it his heart is tainted with sin. And Allah knoweth all that ye do.

Pickthall If ye be on a journey and cannot find a scribe, then a pledge in hand (shall suffice). And if one of you entrusteth to another let him who is trusted deliver up that which is entrusted to him (according to the pact between them) and let him observe his duty to Allah. Hide not testimony. He who hideth it, verily his heart is sinful. Allah is Aware of what ye do.

Wa in kuntum 'ala_ safariw wa lam tajidu_ ka_tiban fa riha_num maqbu_dah(tun), fa in amina ba'dukum ba'dan fal yu'addil lazi'tumina ama_natahu_ wal yattaqilla_ha rabbah(u_), wa la_ taktumusy syaha_dah(ta), wa may yaktumha_ fa innahu_ a_simun qalbuh(u_), walla_hu bima_ ta'malu_na 'alim(un).

[ Ali’s notes - 329 The first part of the verse deals with transactions involving future payment or future consideration, and the second part with transactions in which payment and delivery are made on the spot. Examples of the former are if goods are bought now and payment is promised at a fixed time and place in the future, or if cash is paid now and delivery is contracted for at a fixed time and place in the future. In such cases a written document is recommended, but it is held that the words later on in this verse, that it is "juster . . . more suitable as evidence, and more convenient to prevent doubts", etc. imply that it is not obligatory in law. Examples of the latter kind - cash payment and delivery on the spot - require no evidence in writing, but apparently oral witnesses to such transactions are recommended. (2.282)

330 The scribe in such matters assumes a fiduciary capacity: he should therefore remember to act as in the presence of God, with full justice to both parties. The art of writing he should look upon as a gift from God, and he should use it as in His service. In an illiterate population the scribe's position is still more responsible. (2.282)

331 Possibly the person "mentally deficient, or weak, or unable to dictate", may also be incapable of making a valid contract, and the whole duty would be on his guardian, who again must act in perfect good faith, not only protecting but vigilantly promoting the interests of his ward. (2.282)

332 It is desirable that the men (or women) who are chosen as witness should be from the circle to which the parties belong, as they would best be able to understand the transaction, and be most easily available if their evidence is required in future. (2.282)

333 Commercial morality is here taught on the highest plane and yet in the most practical manner, both as regards the bargains to be made, the evidence to be provided, the doubts to be avoided, and the duties and rights of scribes and witnesses. Probity even in worldly matters is to be, not a mere matter of convenience or policy, but a matter of conscience and religious duty. Even our every-day transactions are to be carried out as in the presence of God. (2.282)

334 A pledge or security stands on its own independent footing, though it is a very convenient form of closing the bargain where the parties cannot trust each other, and cannot get a written agreement with proper witnesses. (2.283)

335 The law of Deposit implies great trust in the Depositary on the part of the Depositor. The Depositary becomes a trustee, and the doctrine of Trust can be further developed on that basis. The trustee's duty is to guard the interests of the person on whose behalf he holds the trust and to render back the property and accounts when required according to the terms of the trust. This duty again is linked to the sanction of Religion, which requires a higher standard than Law. (2.283)

336 It sometimes happens that if some inconvenient piece of evidence is destroyed or concealed, we gain a great advantage materially. We are warned not to yield to such a temptation. The concealment of evidence has a serious effect on our own moral and spiritual life, for it taints the very source of higher life, as typified by the heart. The heart is also the seat of our secrets. We are told that the sin will reach our most secret being, though the sin may not be visible or open to the world. Further, the heart is in the seat of our affections, and false dealing taints all our affections. (2.283) ]