Lecture 5: The Theory of Ownership PDF

The Theory of Ownership In Islam, the real ownership belongs to Allah swt. Quran in many verses refers to the ownership of God over all the creation. )12:6( “‫”قل لمن ما في السماوات واألرض قل هلل‬ On the other hand, Ownership is a part of human nature. Islam therefore recogniz...

The Theory of Ownership In Islam, the real ownership belongs to Allah swt. Quran in many verses refers to the ownership of God over all the creation. )12:6( “‫”قل لمن ما في السماوات واألرض قل هلل‬ On the other hand, Ownership is a part of human nature. Islam therefore recognizes and upholds an individual’s right to private property and ownership. Therefore, the Quran uses certain phrases such as “his wealth”, “their wealth”, “your wealth”, and “the property of others” which suggest private ownership of an individual over properties.  like other rights the right of ownership is not absolute. It is subject to certain restrictions and regulations as a Muslim holds a property in trust for which he is accountable to Allah swt. Definition of private ownership: “It refers to a right over property, which excludes others and enables the owner to make use of the property itself or its usufruct”. Causes of the Acquisition of Ownership: A person may acquire ownership of property through three ways: 1- Contracts : like contract of sale, gift, donation , will, partnership (sharikah). 2- Inheritance: in contracts a person becomes the owner of a property intentionally, in inheritance a person becomes the owner of a property by operation of the law. 3- The rule of first possession of natural resources: like: hunting, exploitation, application of labor to natural resources like trees cut down from a forest.  Division of Private Ownership Private ownership is divided into two divisions: 1-complete and 2- incomplete ownership. 1- Complete Ownership: It is an ownership over a certain property and its usufruct, which entitles the owner to all the legal rights. The owner has complete authority to use, exploit, or appropriate his property in a lawful way. (sale, gift , donation, waqf...). 2- Incomplete ownership: it is divided into 3 types: 1-ownership over rights included in a land, 2-ownership over property, and 3-ownership over usufruct.  A- Ownership over Rights, included in a Land (Huquq al- Irtifaq): These refers to the right of water, the right of irrigation, the right of passage. These rights cannot be independently traded because they are related to land so any one owns the land owns the rights. B- Ownership over a Property : It refers to a situation where a property is owned by one person and its usufruct by another. For example, in a leased house the owner only owns the house while the usufruct is owned by the lessee. C- Ownership over Usufruct : it refers to the ownership of the benefits of the asset while the owner owns the asset. It can be obtained through borrowing (ia’arah), lease (ijarah), endowment (waqf), will (wasiyyah).... i.e.: In lease (ijarah) a certain usable property such as a house, a car or a book is leased in return for a consideration. The lessee who owns the usufruct may use it himself or he may allow someone else to use it in return for a consideration or free as long as the property is used for the same purpose.  The Characteristics of Ownership Over Usufruct 1- Unlike complete ownership, it is restricted to time place, and conditions. 2- contract in ownership over usufruct is trust contract. If the property is destroyed or becomes defective, the beneficial owner is not held responsible unless negligence is proven. 3- the beneficial owner is not responsible for the maintenance expenses of the leased property. if ownership over usufruct is obtained through a borrowing (i’arah) the borrower is responsible for maintenance expenses of the borrowed property.  Restrictions on Ownership Rights The right to own property is not an absolute right but it is subject to certain conditions. Restrictions relate to acquisition of ownership : ❖ A person cannot acquire ownership rights over public properties as they are meant to benefit all. ❖ He cannot own prohibited things such as wine, pigs, etc as they are not considered property in Shari’ah. ❖In acquiring ownership over other properties, a Muslim is bound to observe certain limitations. ❖For instance, he should avoid unlawful means of earning such as usury, gambling, trade in haram goods, cheating, corruption, stealing and unlawfully taking others property. Restrictions Related to Utilizations ❖Muslim is commanded to spend his wealth for the sake of Allah swt and help his nears of kin and the poor by giving them their due, charities and zakat. ❖He is also prohibited from wastage. ❖A Muslim has to invest his wealth in a useful way that would boost the economy and create job opportunities to others. ❖The owner is free to exercise his right over his property. However, he should use his right in a permissible way, not violate other people’s right. For example, not raising his building to obstruct light and air from reaching his neighbours.  Abuse of ownership ❖When the right of ownership is abused, the state may interfere and regulate private ownership. ❖The government may also impose restrictions upon development and construction in a certain area and property. ❖ Owners are bound to follow them as they cannot develop their lands according to their own wishes. ❖Non-use of private property particularly land may also warrant state intervention. ❖By taking an uncultivated land from a person who is not cultivating it and giving it to another person who may cultivate it. I.e.:during the Prophet’s time, Bilal was granted a title over an agricultural land. Bilal, however, did not cultivate the land as a result the land was left barren. The second caliph Umar asked Bilal to cultivate the land, failing which he took the uncultivated part of land over from Bilal. The government has also the right to take private land to build highways, roads, hospitals, and other public utilities. It may also regulate the utilization of private property in accordance with the public interest. For example, price ceiling or price control of certain essential commodities could be implemented in the public interest.  Properties that cannot be owned by Individuals ❖Recognition of private ownership is one of the fundamental principles of Islam. However, certain properties cannot be owned by individuals. ❖i.e. atmosphere, free air, heat coming from the sun, ocean and its resources, and space. These properties belong to all mankind. ❖The prophet has stated: ❖ “People are partners is three: grass, water and fire” ❖The principle that is laid down in the hadith is that the society is declared the owner of natural resources. ❖ These includes rivers, forests, land, mountains, minerals, oil resources etc. ❖ these resources belong to the people who reside in that territory who have equal right to benefit from them. These resources should be under the supervision of the state. The state should manage them either directly or through private companies for the common good of the people. ❖However, companies cannot claim ownership of the forests for instance, but they are only authorized to do logging activities in a certain area of the forest for limited period.