- Published on
Islamic Contract Law: Classification of
Mal
According to Movability
Meaning of Movability
Movability refers to whether a property can be transferred from one place to another without changing or destroying its original form or structure.
This classification is important because whether property is movable or immovable can affect several Shariah rulings.
In terms of movability, mal is divided into two types:
- Manqul — movable property
- Ghayr Manqul — immovable property
1.
Manqul
— Movable Property
Manqul refers to property that can be moved from one place to another while maintaining its original form and structure.
Examples
- Computer
- Clothes
- Car
- Furniture
- Mobile phone
- Jewellery
Example
A laptop can be moved from one house to another without changing what it is.
Therefore:
Manqul = property that can be physically moved without losing its original nature.
2.
Ghayr Manqul
— Immovable Property
Ghayr manqul refers to property that cannot normally be moved from its original location.
The clearest example is land.
Examples
- Land
- Buildings attached to land
- Houses
- Permanent structures
- Trees rooted in land
For example, a piece of land cannot be physically moved to another location while remaining the same property.
Therefore:
Ghayr manqul = property that is fixed to its location.
Difference of Opinion Regarding Houses and Trees
Islamic scholars differ regarding certain properties that are physically attached to land, such as:
- Houses
- Buildings
- Trees
Shafi‘i, Maliki and Hanbali Schools
The majority of scholars from the Shafi‘i, Maliki and Hanbali schools generally regard these as immovable property because they are fixed to the land.
Example
A house built permanently on a piece of land is treated as:
Ghayr manqul — immovable property.
Hanafi School
The Hanafi school takes a different approach.
Buildings and trees may be treated as movable property in themselves, because they can theoretically be detached or removed.
However, when they are considered together with and subordinate to the land, they follow the legal status of the land.
Since the land is immovable, the attached building or tree may also be treated as immovable under the rule that:
The subordinate follows the principal property.
Example
Suppose Ahmad owns a piece of land with a house built on it.
If the house is considered together with the land:
- Land = ghayr manqul
- House follows the land
- Therefore, the house may also be treated as ghayr manqul
Importance of the Classification
The distinction between manqul and ghayr manqul affects several areas of Islamic law.
1. Effect on
Waqf
Waqf means dedicating property permanently for a charitable or religious purpose.
Classical Hanafi View
According to classical Hanafi scholars, waqf was generally not permitted for movable property.
This means property such as movable goods could not normally be permanently dedicated as waqf, subject to recognised exceptions.
Majority View
Most other scholars permitted waqf involving movable property.
Example
A person may want to dedicate:
- Books to a mosque
- Medical equipment to a hospital
- Furniture to a school
These are movable assets.
Under the majority view, such movable property can generally be made waqf.
2. Effect on
Shuf‘ah
Shuf‘ah means the pre-emptive right to purchase property before it is transferred to an outsider, particularly in certain jointly owned property situations.
Its purpose is to protect the interests of existing partners or co-owners.
Example
Ahmad and Ali jointly own a piece of land.
Ali wants to sell his share to Zaid.
Under the applicable rules of shuf‘ah, Ahmad may have the right to purchase Ali’s share before it passes to the outsider.
Majority View on
Shuf‘ah
According to the majority of scholars, shuf‘ah applies mainly to immovable property.
Therefore, it generally applies to property such as:
- Land
- Houses
- Other immovable real property
It does not generally apply to ordinary movable property.
Example
If Ahmad and Ali jointly own a car and Ali sells his share, the majority view does not normally apply shuf‘ah to the car because it is manqul.
But if they jointly own land, shuf‘ah may apply because land is ghayr manqul.
3. Effect on Payment of Debts
The classification also matters when a debtor cannot repay his debt.
If a debtor’s debt becomes due and he is unable to pay, a judge may order that some of the debtor’s property be sold to settle the debt.
General Principle
The debtor’s movable property should generally be sold first before his immovable property.
Therefore:
Manqul is used first, then ghayr manqul if necessary.
Example
Ahmad owes RM100,000 and is unable to repay it.
He owns:
- A car
- Jewellery
- Furniture
- A house
- Land
The court may first sell movable assets such as:
- Car
- Jewellery
- Furniture
If those assets are not enough to repay the debt, the court may then consider selling:
- House
- Land
This approach helps protect the debtor from unnecessarily losing important immovable assets when the debt can be settled using movable property.
Simple Summary
Manqul
Property that can be moved without changing its original nature.
Examples:
- Computer
- Clothes
- Car
- Furniture
Ghayr Manqul
Property that is fixed to its location.
Examples:
- Land
- House
- Permanent building
Difference Among the Schools
The Shafi‘i, Maliki and Hanbali schools generally treat buildings and trees attached to land as immovable.
The Hanafi school may treat them differently in themselves, but when they follow the land, they take the status of the land and are treated as immovable.
Three Main Legal Effects
Waqf
- Classical Hanafi view → generally restricted waqf of movable property.
- Majority view → movable property may generally be made waqf.
Shuf‘ah
- Mainly applies to immovable property according to the majority.
- Example: jointly owned land.
Debt Repayment
- Movable assets are generally sold first.
- Immovable assets are sold later if necessary.
Easy Way to Remember
Manqul = can move.
Ghayr manqul = fixed in place.
For debt settlement: movable first, immovable later.
