Islamic Contract Law: Meaning of Ownership (

Milkiyyah

)

Meaning of

Milkiyyah

The Arabic term milkiyyah means ownership or possession.

It refers to a person having authority over a property, including the ability to:

• Possess it
• Use it
• Benefit from it
• Control it
• Dispose of it

The person who owns the property is called the malik, meaning owner.

Technical Meaning of Ownership

In Islamic law, milkiyyah refers to a legal relationship between a person and a property that is recognised by Shariah.

Through this recognised ownership, the owner has the right to exercise control over the property and decide how it is used.

This may include the right to:

• Use the property
• Sell it
• Rent it
• Give it as a gift
• Donate it
• Transfer it to another person
• Prevent others from using it without permission

However, these rights are subject to Shariah limitations.

So ownership in Islam does not mean:

“I own it, therefore I can do absolutely anything I want with it.”

Instead:

Ownership gives a person control over property, but that control must remain within the limits of Shariah.

Exclusive Control of the Owner

A lawful owner normally has exclusive control over the property.

This means another person cannot normally:

• Use the property without permission
• Sell it
• Give it away
• Damage it
• Take possession of it

Example

Ahmad owns a car.

Because Ahmad is the malik:

• He may drive it.
• He may sell it.
• He may rent it to another person.
• He may give it as a gift.
• Other people cannot simply take or use the car without his permission.

Therefore, Ahmad has milkiyyah over the car.

Ownership Is Subject to Shariah

Although the owner has control over the property, Shariah may restrict certain uses.

Example

A person lawfully owns a house.

He may:

• Live in it
• Rent it
• Sell it
• Give it away

But ownership does not allow him to use the house for an activity that is prohibited by Shariah.

Therefore:

Ownership gives rights of use and disposal, but only in lawful ways.

Ownership Must Be Acquired Lawfully

For ownership to be recognised by Shariah, the property must be obtained through a lawful method.

Examples of lawful ways of obtaining ownership include:

• Purchase
• Gift
• Inheritance
• Lawful earnings
• Other valid transfers of ownership

Unlawful Possession Does Not Create Lawful Ownership

Simply possessing or controlling something does not automatically make a person its lawful owner.

If someone obtains another person’s property through unlawful means, Shariah does not recognise that person as the rightful owner.

Example: Taking Someone Else’s Property

Suppose Ahmad takes Ali’s laptop without permission and refuses to return it.

Ahmad may physically possess the laptop, but:

• Ali remains the lawful owner.
• Ahmad’s possession does not create valid milkiyyah.
• Ahmad has no lawful right to sell, give away, or treat the laptop as his own.

Therefore:

Physical possession is not the same as lawful ownership.

Example: Usurpation (

Ghasb

)

Ghasb refers to wrongfully taking or controlling another person’s property.

Suppose Zaid unlawfully takes Khalid’s land and begins using it.

Even if Zaid controls the land for some time:

• Zaid does not become its lawful owner merely through wrongful possession.
• Khalid’s ownership remains recognised.
• The property should be returned to its rightful owner.

So:

Unlawful control does not create lawful milkiyyah.

Ownership and Possession Are Different

This distinction is important.

Ownership (

Milkiyyah

)

Means a Shariah-recognised legal relationship giving a person rights over property.

Possession

Means a person physically has or controls the property.

A person may possess property without owning it.

Example: Tenant

Ali rents a house from Ahmad.

• Ahmad = owner (malik)
• Ali = possesses and uses the house during the lease

Ali has lawful possession and manfa‘ah, but he does not own the house itself.

Therefore:

Possession does not always mean ownership.

Simple Summary

Milkiyyah means lawful ownership recognised by Shariah.

The owner, called the malik, has the right to:

• Possess the property
• Use it
• Benefit from it
• Control it
• Sell or transfer it

However, these rights must be exercised within the limits of Shariah.

Most importantly:

Ownership must be acquired through lawful means.

Taking another person’s property unlawfully does not create valid ownership, even if the person physically controls the property.

Easy Way to Remember

Malik = owner

Milkiyyah = ownership

Lawful ownership = control + use + disposal, subject to Shariah

Unlawful possession ≠ lawful ownership

Islamic Contract Law: Classification of

Mal

Based on Whether It Lasts After Use

Property (mal) can also be classified according to whether it remains after being used or is consumed through use.

In this classification, mal is divided into two types:

1. Istihlaki — non-lasting or consumable property
2. Isti‘mali — lasting or non-consumable property

1.

Istihlaki

— Non-Lasting or Consumable Property

Istihlaki refers to property that cannot normally be used without consuming it, destroying it, or changing its original form.

Once it is used, the same item cannot be returned and used again in the same way.

Examples

• Food
• Drinking water
• Petrol
• Money

Example: Food

If a person eats a plate of rice:

• The rice is consumed.
• The same rice cannot be returned after use.
• Therefore, food is istihlaki property.

Why Is Money Considered

Istihlaki

?

Money is slightly different because it is not physically destroyed when used.

However, when a person spends or lends money:

• The exact money leaves the person’s ownership.
• The same notes or coins are not normally returned.
• What is returned is an equivalent amount, not necessarily the identical money.

For example:

Ahmad lends Ali RM1,000.

Ali may spend the RM1,000. Later, Ali must repay RM1,000 of equivalent value, not necessarily the same banknotes.

Therefore, money is treated as istihlaki.

Easy Meaning

Istihlaki = property whose use consumes it or requires its ownership/form to be replaced.

2.

Isti‘mali

— Lasting or Non-Consumable Property

Isti‘mali refers to property that can be used repeatedly without destroying or consuming its original form.

The property remains in existence after being used.

Examples

• Book
• Computer
• House
• Car
• Furniture
• Bicycle

Example: Computer

A person can use a computer today and use the same computer again tomorrow.

The computer remains after use.

Therefore:

Computer = isti‘mali property

Example: House

A person can live in a house for many years while the same house continues to exist.

Therefore:

House = isti‘mali property

Easy Meaning

Isti‘mali = property that can be used repeatedly while the same property remains.

Importance of This Classification

The distinction between istihlaki and isti‘mali is important because it affects several Islamic contracts.

1. Effect on

Ijarah

— Lease Contract

Ijarah is a contract where a person pays to obtain the benefit (manfa‘ah) of an asset or service for a certain period.

For ijarah to work, the original asset should generally remain after its use.

Therefore, ijarah is generally suitable for isti‘mali property.

Valid Example

Ahmad rents a car to Ali for three days.

• Ali uses the car.
• The car remains in existence.
• At the end of the lease, Ali returns the same car.

Therefore:

Car = isti‘mali → suitable for ijarah.

Why

Istihlaki

Property Cannot Normally Be Leased

Consumable property cannot normally be the subject of an ordinary ijarah because using it requires consuming it.

Example: Food

Suppose Ahmad says:

“I lease you this bag of rice for one week.”

This does not work like a normal lease because Ali cannot eat the rice and later return the same rice.

Once it is eaten, it is gone.

Therefore:

Istihlaki property is generally not suitable for ijarah.

2. Difference Between

Qard

and

‘Ariyah

This classification also helps distinguish between two important contracts:

• Qard — loan
• ‘Ariyah — gratuitous loan of use

Qard

— Loan of Consumable Property

Qard generally applies to property that is consumed or transferred through its use.

The borrower receives ownership of the property and must later return an equivalent replacement.

Therefore, qard is commonly associated with istihlaki property.

Example: Borrowing Money

Ahmad lends Ali RM500.

Ali may use and spend the money.

He does not need to return the exact same banknotes.

Instead, he must return:

RM500 of equivalent value.

Therefore:

• Money = istihlaki
• Contract = qard

Another Example

If Ahmad lends Ali 10 kg of standard rice as qard:

• Ali may consume the rice.
• He later returns 10 kg of equivalent rice.

The same original rice does not have to be returned.

‘Ariyah

— Free Loan of Use

‘Ariyah refers to allowing another person to use property for free and then return the same property.

Because the same item must remain and be returned, ‘ariyah is suitable for isti‘mali property.

Example: Borrowing a Laptop

Ahmad allows Ali to use his laptop for one week without payment.

• Ali may use the laptop.
• Ownership remains with Ahmad.
• After one week, Ali must return the same laptop.

Therefore:

• Laptop = isti‘mali
• Contract = ‘ariyah

Another Example: Borrowing a Book

Fatimah allows Aisha to borrow her textbook for two weeks.

Aisha:

• Uses the book
• Does not become its owner
• Must return the same book

Therefore:

Book = isti‘mali

Free loan of the book = ‘ariyah

Key Difference Between

Qard

and

‘Ariyah

The easiest way to distinguish them is to ask:

Must the same exact item be returned?

If no, and only an equivalent replacement is required:

Qard

Example: Borrow RM500 → return another RM500.

If yes, the same item must be returned:

‘Ariyah

Example: Borrow a laptop → return the same laptop.

Connection with

Manfa‘ah

This classification also connects with the concept of manfa‘ah.

With isti‘mali property, a person can transfer or allow another person to enjoy the benefit of the asset while preserving the asset itself.

Example

A house can be rented.

• House itself = ‘ayn
• Living in the house = manfa‘ah
• House remains after use = isti‘mali

This is why a house can be the subject of an ijarah contract.

By contrast, food cannot normally be leased for consumption because obtaining its benefit requires destroying or consuming the food itself.

Simple Summary

Istihlaki

Property that is consumed, destroyed, or transferred through its use.

Examples:

• Food
• Petrol
• Money

Usually connected with:

Qard — borrower uses the property and returns an equivalent.

Isti‘mali

Property that remains after use and can be used repeatedly.

Examples:

• Book
• Computer
• House
• Car

Usually suitable for:

Ijarah — paid use of the property.

‘Ariyah — free use of the property.

Easy Way to Remember

Istihlaki = use it → original property is consumed or replaced.

Isti‘mali = use it → the same property remains.

And:

Money borrowed → Qard

Laptop borrowed for free → ‘Ariyah

House rented for payment → Ijarah

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:

1. Manqul — movable property
2. 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.

Islamic Contract Law: Classification of

Mal

Based on Fungibility

Meaning of Fungibility

Fungibility refers to whether a property can be replaced or exchanged with another property of the same or very similar type, quality, and value.

In terms of fungibility, mal is divided into two categories:

1. Mithli — fungible property
2. Qimi — non-fungible property

1.

Mithli

— Fungible Property

Mithli refers to property that has standard or similar replacements readily available in the market.

The replacements are generally:

• Of the same type
• Of similar quality
• Of the same quantity
• Equal or very close in market value

Because similar replacements are easily available, one unit can normally be substituted for another.

Example: New Proton Saga

A new Proton Saga of the same model and specifications may be considered mithli because:

• Many identical or very similar units are manufactured.
• Another car of the same model and specification can normally replace it.
• Their market prices are usually the same or very close.

Therefore:

Mithli = property that can normally be replaced by another equivalent property.

Types of

Mithli

Property

Mithli property can be classified according to how its quantity is determined.

A. Property Measured by Volume

These are goods whose quantity can be determined by volume.

Example: Milk

If one litre of a standard type of milk is owed, another litre of the same type and quality can normally replace it.

B. Property Measured by Weight

These are goods whose quantity is determined by weight.

Example: Gold

For example, a certain weight of gold of the same quality can generally be replaced by the same weight and quality.

C. Property Measured by Number

These are goods that are normally determined by counting the number of units.

Example: Eggs

For example, ten eggs of a similar type and quality may be replaced by another ten comparable eggs.

D. Property Measured by Length

These are goods whose quantity is determined by length or measurement.

Example: Cloth or fabric

For example, five metres of a particular standard fabric may be replaced by another five metres of the same type and quality.

2.

Qimi

— Non-Fungible Property

Qimi refers to property for which:

• No sufficiently similar replacement is available in the market, or
• Similar items exist but their individual characteristics and prices differ significantly.

Therefore, a qimi item is normally valued individually.

Examples

• Animals
• Works of art
• Used cars
• Antique watches
• Rare jewellery
• Unique collectibles

Example: Used Car

A used car is usually qimi because even two cars of the same model and year may differ in:

• Mileage
• Condition
• Accident history
• Maintenance
• Market value

Therefore, replacing one used car with another used car may not provide an equivalent replacement.

Qimi = property that is unique or cannot easily be replaced with an equivalent item.

Importance of the Classification

1. Compensation for Destroyed Property

The distinction between mithli and qimi affects how compensation is determined when someone’s property is wrongfully destroyed.

If

Mithli

Property Is Destroyed

The person responsible should generally provide a similar replacement.

Example:

If someone destroys 10 kilograms of standard rice belonging to another person, they may compensate the owner with:

10 kilograms of the same type and quality of rice.

This is possible because rice is generally mithli.

If

Qimi

Property Is Destroyed

Because an equivalent replacement may not exist, compensation is generally made according to the monetary value of the property.

Example:

If someone destroys a rare antique watch, another antique watch may not be equivalent.

Therefore:

Compensation would normally be based on the value of the destroyed watch.

Easy Rule

Mithli destroyed → replace with an equivalent item.

Qimi destroyed → compensate according to its value.

2. Relationship with

Riba al-Fadl

This classification is also relevant to riba al-fadl.

Riba al-fadl refers to an unlawful excess that may arise when certain ribawi goods of the same type are exchanged in unequal quantities.

Example

If gold is exchanged for gold of the same type, the exchange must comply with the Shariah requirements relating to equality and exchange.

For example:

10 grams of gold exchanged for 12 grams of gold may involve riba al-fadl.

The issue can arise with certain mithli properties that are also ribawi goods.

It is important to remember that not every fungible property automatically involves riba al-fadl. The rules apply specifically to goods that fall within the Shariah rules on riba.

Simple Summary

Mithli

Property that has standard and similar replacements in the market.

Examples:

• Milk
• Gold
• Eggs
• Standard fabric
• A new mass-produced car of the same model and specifications

If destroyed:

Replace it with an equivalent property.

Qimi

Property that is unique or whose similar items differ significantly in characteristics and value.

Examples:

• Animals
• Art
• Used cars
• Antique watches

If destroyed:

Compensate according to its monetary value.

Easy Way to Remember

Mithli = “I can replace it with another equivalent one.”

Qimi = “I cannot easily find an equivalent, so I compensate its value.”

1. Mithli — Fungible Property Mithli refers to property that has standard or similar replacements readily available in the market. The replacements are generally:  Of the same type Of similar quality Of the same quantity Equal or very close in market value  Because similar replacements are easily available, one unit can normally be substituted for another. Example: New Proton Saga A new Proton Saga of the same model and specifications may be considered mithli because:  Many identical or very similar units are manufactured. Another car of the same model and specification can normally replace it. Their market prices are usually the same or very close.  Therefore: Mithli = property that can normally be replaced by another equivalent property. 

Types of Mithli Property Mithli property can be classified according to how its quantity is determined. A. Property Measured by Volume These are goods whose quantity can be determined by volume. Example: Milk If one litre of a standard type of milk is owed, another litre of the same type and quality can normally replace it. 

B. Property Measured by Weight These are goods whose quantity is determined by weight. Example: Gold For example, a certain weight of gold of the same quality can generally be replaced by the same weight and quality. 

C. Property Measured by Number These are goods that are normally determined by counting the number of units. Example: Eggs For example, ten eggs of a similar type and quality may be replaced by another ten comparable eggs. 

D. Property Measured by Length These are goods whose quantity is determined by length or measurement. Example: Cloth or fabric For example, five metres of a particular standard fabric may be replaced by another five metres of the same type and quality. 

2. Qimi — Non-Fungible Property Qimi refers to property for which:  No sufficiently similar replacement is available in the market, or Similar items exist but their individual characteristics and prices differ significantly.  Therefore, a qimi item is normally valued individually. Examples  Animals Works of art Used cars Antique watches Rare jewellery Unique collectibles  Example: Used Car A used car is usually qimi because even two cars of the same model and year may differ in:  Mileage Condition Accident history Maintenance Market value  Therefore, replacing one used car with another used car may not provide an equivalent replacement. Qimi = property that is unique or cannot easily be replaced with an equivalent item. 

Importance of the Classification 1. Compensation for Destroyed Property The distinction between mithli and qimi affects how compensation is determined when someone’s property is wrongfully destroyed. If Mithli Property Is Destroyed The person responsible should generally provide a similar replacement. Example: If someone destroys 10 kilograms of standard rice belonging to another person, they may compensate the owner with: 10 kilograms of the same type and quality of rice. This is possible because rice is generally mithli. If Qimi Property Is Destroyed Because an equivalent replacement may not exist, compensation is generally made according to the monetary value of the property. Example: If someone destroys a rare antique watch, another antique watch may not be equivalent. Therefore: Compensation would normally be based on the value of the destroyed watch. Easy Rule Mithli destroyed → replace with an equivalent item.

Qimi destroyed → compensate according to its value. 

2. Relationship with Riba al-Fadl This classification is also relevant to riba al-fadl. Riba al-fadl refers to an unlawful excess that may arise when certain ribawi goods of the same type are exchanged in unequal quantities. Example If gold is exchanged for gold of the same type, the exchange must comply with the Shariah requirements relating to equality and exchange. For example: 10 grams of gold exchanged for 12 grams of gold may involve riba al-fadl. The issue can arise with certain mithli properties that are also ribawi goods. It is important to remember that not every fungible property automatically involves riba al-fadl. The rules apply specifically to goods that fall within the Shariah rules on riba. 

Simple Summary Mithli Property that has standard and similar replacements in the market. Examples:  Milk Gold Eggs Standard fabric A new mass-produced car of the same model and specifications  If destroyed: Replace it with an equivalent property. Qimi Property that is unique or whose similar items differ significantly in characteristics and value. Examples:  Animals Art Used cars Antique watches  If destroyed: Compensate according to its monetary value. Easy Way to Remember Mithli = “I can replace it with another equivalent one.”

Qimi = “I cannot easily find an equivalent, so I compensate its value.”

Islamic Contract Law: Classification of

Mal

According to Shariah Value

Property (mal) can be classified according to whether its value and use are recognised by Shariah.

In terms of value, mal is divided into two types:

1.

Mutaqawwim

— Valuable Property

Mutaqawwim refers to property that a person is permitted by Shariah to possess and benefit from.

In other words, it has a lawful and recognised use.

Examples

• Car
• House
• Clothing
• Gold
• Halal food

For example, a car is mutaqawwim because a person may lawfully own it, use it, sell it, or benefit from it.

Mutaqawwim = property with recognised lawful value under Shariah.

2.

Ghayr Mutaqawwim

— Non-Valuable Property

Ghayr mutaqawwim refers to property whose possession or normal use is not recognised as lawful by Shariah.

Examples

• Wine
• Pig
• Carrion or a dead animal not lawfully slaughtered

These things may have economic value in some societies, but their ordinary use is prohibited under Shariah.

Ghayr mutaqawwim = property whose value or use is not recognised as lawful under Shariah.

Legal Effect of This Classification

One important consequence concerns compensation when property is destroyed.

Destruction of

Mutaqawwim

Property

If a person unlawfully destroys another person’s lawful valuable property, compensation is generally required.

Example

Ahmad damages Ali’s car.

Since the car is mutaqawwim, Ahmad may be required to compensate Ali for the damage.

Destruction of

Ghayr Mutaqawwim

Property

Under the classical approach, if the destroyed property is not recognised as lawful valuable property, compensation may not be required in the same way.

Example

If prohibited property is destroyed, its lack of recognised Shariah value can affect whether compensation is payable.

Contemporary View Regarding Non-Muslim Property

An important qualification is recognised by many contemporary scholars.

A non-halal item belonging to a non-Muslim may still be regarded as that person’s protected property.

Example: Wine Belonging to a Non-Muslim

Suppose a non-Muslim lawfully possesses a bottle of wine, and a Muslim deliberately destroys it.

According to the contemporary view mentioned in the text:

• The wine is recognised as the non-Muslim owner’s property.
• The Muslim should not simply destroy it.
• If the Muslim destroys it, compensation may be required.

This shows that the classification of mal may also depend on whose property it is and the legal context in which the issue arises.

Why This Classification Is Important

The distinction between mutaqawwim and ghayr mutaqawwim affects matters such as:

• Ownership
• Use of property
• Sale and transactions
• Liability for damage
• Compensation when property is destroyed

Simple Summary

Mutaqawwim

Property that Shariah permits a person to possess and benefit from.

Example: Car.

Ghayr Mutaqawwim

Property whose normal possession or use is not recognised as lawful under Shariah.

Examples: Wine, pig, carrion.

Main Legal Effect

If lawful valuable property is destroyed, compensation is generally required.

For certain prohibited items belonging to a non-Muslim, many contemporary scholars recognise the owner’s property interest and may require compensation if another person destroys it.

Easy Way to Remember

Mutaqawwim = lawful value recognised by Shariah

Ghayr mutaqawwim = value/use not ordinarily recognised as lawful by Shariah

Islamic Contract Law: Classification of Property (

Mal

)

Islamic scholars classify mal (property) in different ways depending on its characteristics.

Property may be classified according to:

• Whether it is used up after one use or can be used repeatedly
• Whether it has recognised value under Shariah
• Whether it is movable or immovable
• Whether it can be replaced by a similar item or is unique

There are four main classifications of mal.

1. Classification Based on Whether the Property Lasts

This classification looks at whether the property remains after being used.

Istihlaki

— Consumable Property

Istihlaki refers to property that is used up, destroyed, or exhausted after one use.

Once it is consumed, the same item cannot normally be used again.

Examples:

• Food
• Petrol
• Drinking water
• Soap
• Electricity

For example, once food is eaten, the same food cannot be used again.

Istihlaki = property that is consumed through use.

Isti‘mali

— Non-Consumable or Durable Property

Isti‘mali refers to property that can be used repeatedly without being destroyed after one use.

Examples:

• House
• Car
• Furniture
• Laptop
• Clothing

For example, a person can use the same house for many years.

Isti‘mali = property that remains after use and can be used repeatedly.

2. Classification Based on Value

This classification considers whether property has recognised value according to Shariah.

Mutaqawwim

— Shariah-Recognised Valuable Property

Mutaqawwim refers to property that:

• Has value, and
• Its use is recognised or permitted under Shariah.

Examples:

• House
• Car
• Halal food
• Clothing
• Gold

These items have recognised economic value and may generally be lawfully used.

Mutaqawwim = property with recognised lawful value under Shariah.

Ghayr Mutaqawwim

— Property Without Recognised Shariah Value

Ghayr mutaqawwim refers to something that may have economic value to some people but is not recognised as lawful valuable property under Shariah in the relevant context.

Example:

• Wine in relation to a Muslim’s lawful property dealings.

It may have a market price, but its prohibited use affects its recognition under Shariah.

Ghayr mutaqawwim = something whose value is not recognised by Shariah for lawful use.

3. Classification Based on Movability

This classification considers whether property can be moved from one place to another.

Manqul

— Movable Property

Manqul refers to property that can be physically transferred or moved from one place to another.

Examples:

• Car
• Mobile phone
• Furniture
• Jewellery
• Money

For example, a car can be moved from one location to another without destroying its essential nature.

Manqul = movable property.

Ghayr Manqul

— Immovable Property

Ghayr manqul refers to property that cannot normally be moved from one place to another without changing or destroying its nature.

Examples:

• Land
• House
• Building
• Permanent structures attached to land

For example, land cannot be physically moved to another location.

Ghayr manqul = immovable property.

4. Classification Based on Fungibility

This classification looks at whether property can be replaced by another similar item of the same type, quality, and quantity.

Mithli

— Fungible Property

Mithli refers to property that has similar equivalents readily available in the market.

If it is lost or destroyed, it can usually be replaced with another item of the same kind, quality, and quantity.

Examples:

• Rice
• Sugar
• Flour
• Standard manufactured goods
• Money

For example, if someone owes another person 5 kilograms of a standard type of rice, they can normally replace it with another 5 kilograms of the same type and quality.

Mithli = property that can be replaced by an equivalent.

Qimi

— Non-Fungible or Unique Property

Qimi refers to property that does not have an exact or sufficiently similar replacement in the market.

Its value may depend on its individual characteristics.

Examples:

• A unique painting
• Antique furniture
• A rare collector’s item
• A particular used house
• A unique piece of jewellery

For example, if a rare handmade painting is destroyed, another painting may not be an exact substitute because each one is unique.

Qimi = property that is valued individually because an equivalent replacement may not exist.

Simple Summary

The four main ways of classifying mal are:

Based on lasting after use

• Istihlaki → consumed after use
• Isti‘mali → can be used repeatedly

Based on Shariah-recognised value

• Mutaqawwim → has recognised lawful value
• Ghayr mutaqawwim → does not have recognised lawful value in the relevant Shariah context

Based on movability

• Manqul → movable
• Ghayr manqul → immovable

Based on replaceability

• Mithli → replaceable with a similar equivalent
• Qimi → unique or not easily replaced

Easy Way to Remember

Lasting → Istihlaki / Isti‘mali

Value → Mutaqawwim / Ghayr Mutaqawwim

Movement → Manqul / Ghayr Manqul

Replacement → Mithli / Qimi

Islamic Contract Law: Difference Between

Manfa‘ah

and

Haqq

The difference can be confusing because both are non-physical and both can have value. The easiest way to separate them is this:

Manfa‘ah = the benefit or use you enjoy from something.

Haqq = the legally recognised right or entitlement you have over something.

1.

Manfa‘ah

— Benefit or Use

Manfa‘ah focuses on what you are able to enjoy or use.

It usually arises when someone allows another person to use an asset or provides a service.

Example: Renting a House

Ahmad owns a house and rents it to Ali for one year.

• The house itself = ‘ayn
• Ali’s ability to live in and use the house = manfa‘ah
• Ahmad still owns the house.
• Ali receives only its benefit for one year.

So:

Living in the rented house = manfa‘ah.

Example: Renting a Car

Fatimah rents a car for three days.

She does not own the car. What she receives is the benefit of using the car for transportation.

Using the car = manfa‘ah.

Example: Hiring a Teacher

A student pays a teacher for lessons.

There is no physical property being transferred. The student receives the benefit of the teacher’s teaching service.

Teaching service = manfa‘ah.

So manfa‘ah is mainly about:

“What benefit am I receiving?”

2.

Haqq

— Right or Entitlement

Haqq means a recognised legal right or entitlement.

The focus is not simply on enjoying the use of something. Instead, it is on having a specific right that Shariah or the law recognises and protects.

Example: Right of Passage —

Haqq al-Murur

Suppose Ahmad owns a house behind another person’s land.

The only way Ahmad can reach the public road is by crossing a pathway on his neighbour’s property.

Ahmad may have a recognised right of passage (haqq al-murur).

• Ahmad does not own the neighbour’s land.
• Ahmad is not renting the whole land.
• He only has a specific legal right to cross through it.

Therefore:

The right to cross the neighbour’s land = haqq.

The important point is that Ahmad has an entitlement, not general use of the property.

The Main Difference

Think of it this way:

Manfa‘ah

asks:

“What benefit or use do I get?”

Haqq

asks:

“What recognised right am I entitled to exercise?”

Example Using the Same Property

Suppose there is an apartment building.

Situation 1:

Manfa‘ah

Ali rents Apartment 10 for one year.

He has the right to:

• Live inside the apartment
• Use its rooms
• Enjoy the facilities included in the lease

The benefit of living in the apartment is manfa‘ah.

Ali is receiving the use of the property.

Situation 2:

Haqq

Ali’s apartment can only be reached through a particular shared passageway.

Ali has a recognised right to use that passageway to reach his apartment.

That specific access right is haqq.

Ali is exercising a recognised entitlement over the passageway.

So in the same situation:

Living in the apartment = manfa‘ah

Right to pass through the access road = haqq

Another Easy Example: Car

Imagine Ahmad owns a car.

Manfa‘ah

Ali rents the car for one week.

Ali receives the benefit of driving and using the car.

Use of the car = manfa‘ah.

Haqq

Suppose Ahmad has a legally recognised right to park that car in a particular allocated space belonging to a shared property.

The recognised entitlement to that particular parking/access right = haqq.

The first is about use of an asset. The second is about a specific legal entitlement.

Another Example: Shop

Suppose Maryam rents a shop.

Manfa‘ah

She pays rent so she can use the shop to operate her business.

Using the shop = manfa‘ah.

Haqq

Suppose the shop has a recognised right to use a pathway behind the neighbouring building for deliveries.

Maryam or the shop owner may have a specific right to use that pathway.

Right of access through the pathway = haqq.

Why They Sometimes Look Similar

The confusion happens because a haqq can allow a person to obtain a benefit.

For example, a right of passage gives you the benefit of reaching your house.

But the concepts focus on different things:

• Manfa‘ah focuses on the benefit itself.
• Haqq focuses on the legal entitlement that allows or protects a particular action.

So, although a haqq may produce a benefit, the right and the benefit are not exactly the same thing.

Very Simple Way to Remember

‘Ayn

The thing itself

Example: house

Manfa‘ah

Using or benefiting from the thing

Example: living in a rented house

Haqq

A recognised right connected to something

Example: the legal right to cross another person’s land to reach your house

So:

House = ‘ayn

Living in the house = manfa‘ah

Right to use a particular access road to the house = haqq

The easiest exam rule is: if the question is about enjoying the use or service, think manfa‘ah. If it is about a specific recognised entitlement that can be claimed or enforced, think haqq.

Islamic Contract Law: The Preferred Definition and Main Forms of

Mal

Preferred Definition of

Mal

After considering the different opinions of Islamic jurists, the stronger view is that:

Mal is anything that has recognised value among people.

This means that mal is not limited only to physical objects.

Something may be considered mal if people recognise that it has value, even if it is:

• A physical object
• A benefit or service
• A legal right
• Something that cannot be physically touched

Under this wider definition, mal may include physical property (‘ayn), benefit or usufruct (manfa‘ah), and rights (haqq).

Why This Definition Is Broader

Some earlier definitions of mal required property to be:

• Capable of being stored
• Capable of being sold
• Permissible under Shariah
• Physically possessed

The broader view focuses mainly on whether the thing has recognised value among people.

Therefore, valuable non-physical interests may also be included within the concept of mal.

Main Forms of

Mal

There are three main forms:

1. ‘Ayn — physical property
2. Manfa‘ah — benefit or usufruct
3. Haqq — a recognised right

1.

‘Ayn

— Physical Property

‘Ayn refers to property that has a physical existence.

It is something that can normally be seen, touched, and possessed.

Examples

• House
• Car
• Land
• Gold
• Furniture
• Mobile phone

Example

If Ahmad owns a car:

• The car physically exists.
• Ahmad owns the car.
• The car has recognised value.

Therefore:

The car is ‘ayn, and it is also mal.

Easy Meaning

‘Ayn = the physical thing itself.

2.

Manfa‘ah

— Benefit or Usufruct

Manfa‘ah means the benefit, use, or service obtained from something.

Unlike ‘ayn, the manfa‘ah itself is not a physical object. However, it can still have value.

Example: Renting a Car

Suppose Ahmad owns a car and rents it to Ali for three days.

• Ahmad still owns the physical car.
• Ali does not become the owner of the car.
• Ali receives the right to use the car for three days.

That right to use the car is manfa‘ah.

Therefore:

Car itself = ‘ayn

Right to use the car = manfa‘ah

Both can have recognised value and therefore fall within the broader concept of mal.

Ownership in a Rental

When Ali rents the car:

• Ali may use the car according to the rental agreement.
• Ali does not own the physical car.
• Ali cannot sell the car because it still belongs to Ahmad.
• Ali only receives the benefit of using it for the agreed period.

Therefore, Islamic contract law distinguishes between:

Ownership of the physical asset and the right to enjoy its benefit.

Other Examples of

Manfa‘ah

Renting a House

• House itself = ‘ayn
• Right to live in the house = manfa‘ah

Hiring a Teacher

• The teaching service = manfa‘ah

Hiring a Driver

• The transportation service = manfa‘ah

Renting Machinery

• Machine itself = ‘ayn
• Right to use the machine = manfa‘ah

Therefore:

Manfa‘ah may be considered mal because the benefit itself has recognised value.

3.

Haqq

— A Recognised Right

Haqq means a right or legal entitlement recognised over property or another valuable interest.

A person does not necessarily need to own the physical property in order to have a haqq connected to it.

Example: Right of Passage

Suppose Ahmad owns a house, but he needs to cross part of his neighbour’s land to reach the main road.

If Ahmad has a recognised right to use that pathway, this is called:

Haqq al-murur — the right of passage.

Ahmad does not own his neighbour’s land.

However, he has the recognised right to pass through it.

Because this right provides a valuable benefit, it can fall within the broader concept of mal.

Other Examples of

Haqq

A person may have a recognised right to:

• Use a passageway
• Access a certain property
• Use a particular facility
• Carry out business in a particular place
• Exercise another recognised property-related right

The person may not own the physical property, but the right itself can have value.

Understanding the Three Forms Together

Suppose Ahmad owns a shop.

‘Ayn

The shop building itself is ‘ayn because it physically exists.

Manfa‘ah

If Ahmad rents the shop to Ali, Ali receives the right to use the shop for business. This benefit is manfa‘ah.

Haqq

If the shop has a recognised right of access through another person’s land, that access right is haqq.

Therefore, all three may have recognised value even though they are different.

Importance in Islamic Contract Law

The broader definition of mal is important because many modern transactions involve more than physical objects.

People may deal with:

• Rental benefits
• Services
• Usage rights
• Access rights
• Other valuable legal entitlements

If mal were limited only to physical property, these valuable interests could be excluded.

The broader view therefore recognises that value can exist in a physical thing, a benefit, or a legal right.

Simple Summary

The preferred definition is:

Mal is anything that has recognised value among people.

It may take three main forms:

‘Ayn

The physical property itself.

Example: a car.

Manfa‘ah

The benefit or use of property or a service.

Example: the right to use a rented car.

Haqq

A recognised legal right.

Example: the right to use a passageway through another person’s land.

Easy Way to Remember

‘Ayn = the thing itself

Manfa‘ah = the benefit from the thing

Haqq = the right connected to the thing

All three may fall under mal when they have recognised value.

Islamic Contract Law: Meaning of

Mal

in the Primary Sources of Shariah

Manfa‘ah

Can Be Considered Property

The primary sources of Shariah show that mal is not limited only to physical objects.

A lawful benefit, service, or useful knowledge (manfa‘ah) may also have recognised value. This means that something can be valuable in Islamic law even if it is not a physical item that can be held or stored.

Example from the Sunnah:

Mahr

Through Knowledge of the Qur’an

A woman came to the Prophet ﷺ and offered herself in marriage. A man then expressed his wish to marry her.

The Prophet ﷺ asked the man whether he had anything that he could give her as mahr.

The man had very little property. The Prophet ﷺ told him to look for something, even an iron ring, but he could not find anything suitable.

The Prophet ﷺ then asked whether he had memorised any part of the Qur’an.

The man replied that he knew several surahs.

The Prophet ﷺ then allowed the marriage on the basis of the Qur’anic knowledge that the man possessed.

Source of the Hadith

This narration is found in:

Sahih al-Bukhari, Hadith no. 5135, Book of Marriage (Kitab al-Nikah).

Hadith numbering may differ slightly depending on the edition, but Hadith 5135 is the reference used in your textbook.

What Does This Hadith Show?

The hadith shows that something valuable does not always have to be a physical object.

The man did not have:

• Money
• Gold
• Jewellery
• Other physical property to offer

However, he had knowledge of the Qur’an.

That knowledge could provide a benefit through teaching and sharing what he had memorised.

Therefore, the benefit arising from his knowledge can be understood as manfa‘ah.

This supports the idea that a lawful and valuable benefit may be recognised as having property value.

Meaning of

Manfa‘ah

Manfa‘ah means the:

• Benefit
• Use
• Service
• Advantage

that a person receives from an asset, skill, knowledge, or another person’s work.

Unlike physical property, manfa‘ah does not necessarily involve ownership of a physical object.

Examples of

Manfa‘ah

• Teaching the Qur’an
• Teaching a language
• Repairing a house
• Providing transportation
• Using a rented car
• Living in a rented house
• Using a shop for business

In each example, the person receives something useful and valuable, even though ownership of a physical object may not be transferred.

Manfa‘ah

in the

Mahr

Example

In the hadith, the valuable element was not a physical copy of the Qur’an.

Rather, the man possessed:

• Knowledge of the Qur’an
• The ability to teach what he knew
• A benefit that the woman could receive from that knowledge

Therefore, the manfa‘ah was the useful benefit arising from his knowledge.

The example shows that value in Shariah can exist in a service or benefit, not only in a physical asset.

Meaning of

Mahr

Mahr is the obligatory marital gift or entitlement that a husband gives, or agrees to give, to his wife in connection with the marriage.

It may commonly consist of:

• Money
• Gold
• Jewellery
• Property
• Other recognised forms of value

The hadith is important because it demonstrates that a valuable benefit or service may also be relevant, rather than limiting value only to physical property.

Relationship Between

Mal

and

Manfa‘ah

Mal generally refers to property or something recognised as having value.

Manfa‘ah refers to the benefit obtained from using property, knowledge, skills, or services.

Therefore:

A manfa‘ah may be treated as mal because the benefit itself has recognised value.

Example: A House

If Ahmad owns a house:

• The house itself is the physical asset, known as ‘ayn.
• The house is mal because it has value.

If Ahmad rents the house to Ali:

• Ahmad still owns the physical house.
• Ali receives the manfa‘ah, which is the right to live in and use the house.
• That benefit has value and may therefore be recognised as mal.

Connection with

Ijarah

The concept of manfa‘ah is especially important in ijarah, which involves leasing or hiring.

In an ijarah contract, a person often pays for the benefit of an asset or a service, rather than purchasing the physical asset itself.

Example: Renting a House

• The house itself = ‘ayn
• The right to live in the house = manfa‘ah
• The rent paid = ujrah

The tenant pays for the benefit of using the house, not for ownership of the house itself.

Example: Hiring a Teacher

A student hires a teacher.

The student does not buy a physical object from the teacher.

Instead, the student receives:

• The teacher’s time
• Knowledge
• Teaching service

This teaching service is a form of manfa‘ah because it provides a valuable benefit.

Importance in Islamic Contract Law

This hadith is important because it supports the idea that property value in Shariah is not limited to tangible objects.

It shows that:

• Physical property can be mal.
• A lawful benefit can have recognised value.
• Knowledge can create a valuable manfa‘ah.
• A service may have value even though it is not a physical object.
• Islamic contracts may therefore involve both physical assets and valuable benefits.

Simple Summary

The hadith concerning the man who knew portions of the Qur’an shows that valuable services and benefits may have recognised value in Shariah.

The idea can be remembered like this:

Man’s knowledge of the Qur’an

→ provides a service or benefit

→ that benefit is manfa‘ah

→ the manfa‘ah has recognised value

→ therefore, it supports the broader understanding that mal can include valuable benefits and not only physical property.

Easy Way to Remember

‘Ayn = the physical asset

Manfa‘ah = the benefit or use

Mal = recognised property or value

Hadith source: Sahih al-Bukhari, Hadith no. 5135, Book of Marriage (Kitab al-Nikah).

Islamic Contract Law:

Mal

According to the Shafi‘i School

Shafi‘i Definition of

Mal

According to the Shafi‘i school, mal refers to something that:

• Has material or economic value, and
• Is capable of being sold.

In simple terms:

Something is considered mal when it has recognised value and can be the subject matter of a sale.

1. Material or Economic Value

For something to qualify as mal, it must have a recognised value.

This definition is broad enough to include:

• Physical property (‘ayn)
• Usufruct or benefit (manfa‘ah)

Examples of Physical Property

• House
• Car
• Land
• Gold
• Furniture

These are physical assets that have economic value.

Example of

Manfa‘ah

A person owns an apartment and rents it to another person.

• Apartment itself = physical property (‘ayn)
• Right to live in the apartment = benefit (manfa‘ah)

The benefit has economic value because people are willing to pay rent for it.

Therefore, under this approach, a valuable benefit can also fall within the concept of mal.

2. The Property Must Be Capable of Being Sold

The Shafi‘i definition also requires that the item can be legally transferred through a sale.

This means:

Having economic value alone may not be enough. The property must also be capable of being sold.

Example

A business licence may be very valuable to the business owner.

However, if the licence is personal to that owner and cannot legally be sold or transferred to another person, it may not satisfy the saleability requirement of this definition of mal.

So:

Economic value ✅

Can be sold/transferred ❌

Therefore, it may be excluded from mal under this particular definition.

Limitation of the Shafi‘i Definition

The phrase “can be sold” makes the definition narrower.

Some things may:

• Have real economic value,
• Give a person an important benefit or right,

but cannot legally be sold to another person.

Such things may therefore be excluded even though they are valuable.

Example: Business Licence

Suppose a restaurant owner has a licence that allows the restaurant to operate.

• The licence is valuable to the owner.
• Without it, the business may not operate.
• However, if the law does not allow the owner to sell the licence to another person, it may not qualify as mal under a strict saleability test.

Manfa‘ah

and

Haqq

The classical definitions of mal created an important question:

Should benefits (manfa‘ah) and rights (haqq) also be considered property (mal)?

Manfa‘ah

Means the benefit or use obtained from something.

Example:

Using a rented house for accommodation.

Haqq

Means a recognised right or legal entitlement.

Example:

A person’s contractual right to receive payment from another person.

The difficulty is that these are not always physical objects and may not always be freely sold.

Simple Summary

Under the Shafi‘i school, mal generally requires:

• Value → it must have recognised economic or material value.
• Saleability → it should be capable of being sold or transferred through a sale.
• Physical assets may be mal → such as houses, cars and land.
• Valuable benefits (manfa‘ah) may also fall within mal.
• A limitation arises where something is valuable but cannot be sold, such as certain personal licences or rights.

Easy Way to Remember

Shafi‘i: Mal = something valuable + capable of being sold.

For example:

House → valuable + saleable → mal

Benefit of using property → valuable → may be recognised as mal

Non-transferable business licence → valuable but not saleable → may be excluded from mal under this definition.