RULING ON CONTRACTING INSURANCE IN ISLAMIC SHARIA

(Hakam Eaqd Altaamin Fi Alshryet Al'iislamia)

The research was given by Sheikh Abdul Karim Zidan on the fly, and was transmitted by his student, Dr. Ahmed bin Muhammad bin Ismail Al-Jahmi Al-Misbahi . This research was published with another group in a book entitled "A Group of Contemporary Jurisprudence Research" in 2011 as part of a wide range of studies on issues faced by Muslims at the present time .

1)  Introduction: The insurance contract in its current form is a new contract, and this is why the past jurists did not mention it. However, this does not prevent us from recognizing its legal ruling because Sharia has a ruling on every incident that occurs from these new facts (new contracts ).

The correct way to know the new contract is to know its contents and present them to the meanings of Shari’a, its rules and principles, what agreed with it or - at least did not violate it - was acceptable and permissible, on the basis that the principle in contracts or conditions is permissible, and this rule is considered as long as this contract does not contradict the meanings of Sharia and its provisions . Based on this approach, we discuss the merits of the insurance contract in order to know its legal ruling and what we reach, or others reach it undoubtedly that it is a way of ijtihad, and it may come close or far from validity, so the weighting of what is more like contracts and Sharia principles, and some jurisprudence may come close to the Sharia What contradicts it is a great dimension, so that it can be said that this violating Ijtihad is not permissible because it is a form of anomalous Ijtihad, and on this basis we are trying to get to know the ruling of this new contract . Before starting efforts to know his judgment, it is imperative to clarify what it is, because perception and knowledge of an object precedes recognition of his judgment .

2)  Definition of insurance

Insurance is a language: from security against fear, as this contract gives security, and it is intended to reassure the soul and its tranquility by the availability of reasons for reassurance, and the insurance contract is one that tries to give reassurance and security to whoever wants it and is a party to it .

In legal terminology: it is a contract between two parties, the first is called (the insured), and the second is called (the insured) according to which (the insured) obtains an undertaking in his favor or for the benefit of another insurer if a specific accident occurs, and according to this undertaking, (the insured) is obligated to provide a specific performance. To (the insured) in exchange for a certain premium or installments to be paid by (the insured) to (the insured) at the agreed times .

3)  Elements of an insurance contract :

In light of this definition, insurance components consist of :

  A - the insurer .

  B - the insured .

  C - An undertaking by the insurer to pay a certain amount or a specific performance .

  D- The accident or danger that, if it occurred, the insured would implement his obligation .

  E - Installments that the insured undertakes to pay to the insured .

4) The  description of this contract

The legal experts say that it is a contract of compensation, and some of them said that it is a potential contract (ambiguity contracts), and others said it is a contract that is binding on both parties .

5)  As for the fact that it is a contract of compensation, this is established on the one hand that each party takes in exchange for what he gives, so the insured gives the installment and takes in return what the insurer committed to performing a specific performance, and the insurer gives what he committed to the insured and takes in exchange for that installment that he committed to pay for him The Insured (Trustee: Seeker of Safety ).

6)  As for its being a contingency contract (ambiguity), because the issue in ambiguity contracts is the ignorance of each party of what he takes and what he gives, and this is apparent in the insurance contract, so the insured does not know whether he will take what the insurer committed to or not ? The insurer will take the installments, but he does not know whether or not he will pay what he committed himself to . ; Because what he committed himself to is dependent on the occurrence of risk (event) stipulated in insurance, which is the verse of deception in contracts .

7)  As for the fact that it is binding on both parties, it is also clear that one of the parties cannot dissolve what he committed himself to in the contract, and this is a sign of the contracts that are binding on both parties .

8)  There are those who permitted it absolutely  ,and there are those who prohibited it absolutely, and those who permitted some of it, as an exception for some of them is the cooperative contract which is not widespread, and the well-known in insurance contracts is called the (commercial insurance contract) or (the insurance contract with a fixed premium) and the insurer is usually a company that undertakes the conclusion Contracts and their purpose of that profit .

9)  Types of commercial insurance contract

  a .  Persons insurance: One of the most common forms of life insurance is that a person approaches the company to conclude this contract with it and is usually based on specifying a certain amount provided by (the trustee) in periodic installments on specific dates, and for a specified period such as ten or twenty years, if the period ends and the trustee remains alive The company returned to him the installments he paid with his interest, and it is permissible without interest if the two parties agree . If the trustee dies before the end of the period, then the company is obligated to pay the sum of the insurance in full and in full to the heirs of the trustee or whoever helps him in his life even if he only pays one installment .

  B .  Insurance for accidents that happen to the person in trust that do not lead to death, such as losing a leg, a hand, or similar parts of his body .

The difference between it and life insurance is that life insurance is a complete insurance for the entire human body and his survival for a certain period, and if this required is missed, the company must pay the full amount .

As for the second type related to one of its members, if this member is injured, the company is obligated to pay the amount when this particular member is injured .

  C .  Money insurance: such as insuring a person on his home from fire, demolition, or the like that leads to damage, or insurance on the assets of the trader in his store, or insurance for the goods during their transport by land, sea or air from one place to another, and the insurance contract is that the trustee pays periodic premiums As for the insurance in one go . Such as insurance of the trader on his goods purchased from Europe in exchange for transporting them to his homeland in exchange for a one-time sum. If the danger occurs, the company must pay the insured, and if it does not occur, the company does not pay anything from the installments it received from the trustee .  

  Dr ..  Liability insurance: It is that the company bears financial responsibility for the damages caused by the trustee to others by mistake, such as insurance for car owners in their mistakes that harm others, or insurance for people who perform actions that may harm others while they are in their professions and trades .

10) And this insurance - liability insurance - of all its types notes what we mentioned about the meaning of harm and potential and that it is a contract of possibilities and this is the argument of the forbidden for it, and they explain that and say that ambiguity exists, so the trustee does not know how much he pays until he takes the amount of insurance, so he may pay one or two installments as the company Don't know whether to pay or not? It also includes the suspicion of usury because usury is (usury as a preference) and it is made by exchanges in the six usurious funds (gold, silver, bread, barley, salt, dates) and these varieties are not permissible to exchange except hand to hand, for example for a parable, and if this does not happen, they fall into the usury of credit. , As if one of them exchanged with the other (wheat with different quality and bad wheat) and the exchange is required without similar in the two (one kilogram of wheat with two kilos of dates). Riba al-Nasi’a in money is provided that he is returned to him more than he gave, because the extra amount is in exchange for money.It also contains the meaning of gambling or gambling, which is forbidden according to the text of the Qur’an, and the meaning of gambling is for one of the players to take money without a charge (there is no usual trade) and win and lose as soon as an event occurs that he has no will in its occurrence, and this meaning exists because the person deserving of the insurance allowance at an event in which he has no involvement Such as the sinking of a ship, and the believer has nothing to do with its occurrence or prevention, and for that it was prohibited by a group and they were not excluded .

11)  Permissible Arguments

They cited a group of evidences which they saw valid in their view, to say of all kinds, we mention it

   1- The 
basic principle in contracts and conditions is dissolution and it is not forbidden except for what is stipulated and where there is no provision for it being forbidden, so the principle of permissibility remains .

   2-   Insurance has become a familiar and usual thing, and since custom has a status, it is necessary to say that it is permissible, and as long as people have accepted it, there is no point in prohibiting it with consent .

   3-  Interest is a guide to dissolving the contract, and it is one of the principles of Sharia, and this is in the interest of the trustee of his contentment and the attainment of psychological stability in this contract, because he is safe from risks, because of the existence of justice from the company, so it is necessary to say the dissolution of this contract .

   4. The insurance contract is based on cooperation, everyone cooperate and give the total amount owed to the owner of the disaster , which is desirable, the Almighty said: (virtue, righteousness and piety and do not cooperate in sin and transgression ) [Surat: table-verse 2 ].

   5- There is no wrongdoing, because the trustee knows what he pays, which is the installment, and what he takes is the security, so there is no prejudice here, and a little deception is forgiven, as in the compensation contract, then the security is valid to be in exchange for the installment, such as the security contract for a certain amount, which is a rent in exchange for security Fetched from this decade .

   6-   The sane system, as the rational person bears the blood money with or without the perpetrator, so the company is measured on the sane without compensation, because the rational person bears the blood money and the company compensates for the loss .

   7 - The contract of loyalty that is adopted in the Hanafi jurisprudence, which is for a non-Arab person to come and greet him and say to the Arab, "You are my lord, you will inherit me if I die and be reasonable on my behalf if I have died, as he arranges obligations for deception, but this is forgiven for ignorance at the time of death .

   8-  The retirement system adopted by Islamic countries, as the state takes part of the employee’s salary and if he dies or is referred to retirement, the state pledges to give him a certain amount, and what he took may be more than what the state deducted from his salary, and no one said that it is not permissible .

   9 -   Social insurance that the state takes from the salary, and if he cuts his leg, the state will compensate him in one go or in the form of salaries, and this does not prevent anyone, and his example as the owner of the factory insures them (i.e. workers) against unemployment .

12)  Introduction to Responses: To the permissible scholars who say that it is permissible, it is sound and acceptable responses. From the point of view of principles, they built their protest in three directions :

  A -  Clinging to the principles upon which rulings are based, and this enters into interest, custom and necessity .

  B -  analogy with some legal contracts such as the contract of guardianship and compensation, and it is also possible to do what the Malikis went to in the binding promise .

  C -  Clinging to the legal systems, such as the system of the awakeel, whereby al-'aqla is obligated to pay blood money in the event of the accidental killing of the member .

13)  Respond to the arguments of those who say dissolving insurance contracts

  First :  Relying on the interest: It is intended by the interest sent, and what is meant is that act that leads to a benefit, but there is no legal evidence calling for the permissibility of this act or its prohibition, because in the case of the existence of evidence of permissibility, this evidence is the basis for the permissibility of this act and there is no need to go To the interest, and if the evidence indicates that it is forbidden, then there is no interest in the acceptable interest . If we look at the insurance contract, then we find that its reasons and the things that it mixed with absolutely forbidden things call for the non-acceptance of its dissolution based on interest because there is no interest in what is forbidden or forbidden according to Sharia .

  Second :  As for clinging to the custom and relying on it, it is adopted, with conditions including :

That it be a true custom, and the correct one that does not contradict the meaning or a Shari’a ruling, if it contradicts it, then it is not considered, because the custom built its consideration on the basis of it being based on implicit consent on the part of the people, and consent is not considered if it violates the Sharia? With it, the act of immorality remains forbidden even if both parties agree to it, and the insurance contract in its meanings and contents is a suspicion of usury and deception, and the facilitator is what precludes saying that the custom and the habit of people deal with it .

14)  As for clinging to the need or necessity, necessity may be taken into account and considered for committing something forbidden if it is not necessary, so that if it is not taken according to it, a person will perish. If he finds permissible meat, he is not allowed to eat the dead because of the existence of compensation from the lawful, and the insurance contract has not reached the case in his consumption To the case of compulsion, with evidence that those who take it are a few people, not most of them, and then that the trustee did not make an effort to find an alternative, and if the existing alternative was a little or difficult to achieve, then a few would abound and the issue would be difficult to facilitate, and thus it would not depend on necessity and the present need the status of necessity .

15) As  for analogy with some contracts, the answer is :

Some of them are built on the basis of analogy, and among the conditions for taking measurement is the presence of the reason in the measurement and the measurement on it, and the absence of the text by virtue of the measurement, until the last conditions of measurement, and in the issue of the reward or guardianship there is no necessary correct measurement in them. Al-Majawwal for him and his being unlimited in an exact manner does not denounce the validity of this name in this contract, just as nothing of the work of the Kharaz and Tailor is insulted, so we cannot determine the work of each of them, but the work of each of them is known, and ignorance in the amount and nature of the work cannot be determined. The security subject of the guard is the work of the guard, not the security that the tenant obtains and the work of the guard is known. As for security, it is the result of the contract and not the subject of the contract, because the subject of the contract is the work of the guard and the company has no work to do with the tenant so that we measure what it does on what the guard does .

The claim of security is not the subject of the contract, it may be a result, and for example: whoever buys a house to live in it, the house is the subject of the contract, and the residence is the goal and not the subject of the contract, and in the custody subject to the contract, the guard acts from vigilance and attention and harm may reach him in the face of the thief, it is an act not security The tenant gets it and the security is the fruit of the guard .

16)  As for the binding promise and its image with the Malikis: Get married and pay you the dowry, or buy a car and give you such-and-such. The owners differ in its permissibility and those who say that it is permissible stipulate that the work should be undertaken by the promised, and in this case the promising person will take down his donor's home and the insurance contract in which there is an exchange rather than a donation .

As for the saying of the one who says: Take this path while I am a guarantor, as is the case with the Hanafis, this is a donation contract, and one of his conditions is not knowing the way from the promised, and knowing the way from the one who promises. If he is ignorant, then he must make sure, and then the company does not point him to a specific path, this is not correct. Analogy to it .

17)  As for the regulations: Islam has enjoined the system of rationality and they are the men of the supportive clique, as well as the system of expenses and fines in tune, and analogy with the difference because this system was required by Islam and insurance brought about by people, and where is the relationship of lineage in it? In al-Aqilah there is a benefit for the guardians of blood and an aid for the mistaken killer, and these meanings are not found in insurance. Adhering to the legitimate system of rationality and thus permissibility of agreement does not change the facts of things, it is an analogy with the difference. The face of this difference: that the system of rationality is based on lineage and the relationship of kinship that is required to be connected, and among the manifestations of this connection is cooperation between affiliates and those associated with them, and the wrong killer deserves help. Because he had no criminal intent, but rather because of a mistake from him, the right of the sinner to suffer, and the people entitled to his sane help to help him. Those whose members advocate among themselves, and it is not based on profit at all, but is based on the implementation of a legal ruling based on the relationship of kinship, helping the wrongdoer and cooperating in righteousness .

None of these meanings are in the insurance contracts, there is no relative relationship or advocacy, as the company does not know the trustee and does not care about it whether he made a mistake or not, so this analogy is not correct .

18)  As for their invocation of the loyalty contract (you will inherit me if I die and be reasonable for me if I have committed), it is an exceptional ruling, and the exception is not measured against it, and this system makes the saint as if he is a member of the family of the Supreme Mawla, so it is attributed to his clan, and these meanings are not found in the insurance contract system .

19)   As for their invocation of retirement: retirement is a reward and reward from the state for its employees who served it. If they reach old age, then it is their right for the state to take care of them, so the retirement system is permissible, and what it deducts from them is a small part and does not have the meaning of profit. This is what the forbidden said .

20)  What seems to me is that this response is weak, but we can respond to those who are authorized that their contract should not be measured against the pension system because what the state deducts does not make it like the installment and the remainder of the employee’s salary is his real salary, and he has accepted that, and this part the state has agreed to give On its own accord to the retired person, and what the state pays has no compensation after adjusting the deductible, and this is a matter of reward and not as compensation, and because it is the duty of the state to commit itself to giving gifts to its employees so that this is like an incentive for them to perform their jobs. And her duty is to take care of all the people and the employees of her subjects .

These meanings are not found in insurance, as the company does not return the premiums as a means of care, but rather it is its pure profit, so this measurement is not correct .

21)  As for the deductions and rewards that the agencies make upon old age for their workers, they can be compared to what the state does, and the difference between them is that employers bind the government and what they give from it. Insurance companies may not be measured on what the government does .

22)  In conclusion, what we have mentioned is that it is more likely for us that it is not permissible, and these images are far from permissible and close to sanctity if they do not fall into them .

The question is what is the alternative ?

23)  Some have argued that the alternative is cooperative insurance, and is it suitable to cover the needs of those wishing to get insurance ?

And the answer to them: What is the difference between the two pictures ? The absence of a third party, which is the companies, and there is no difference and it contains deceit and suspicion, and what you have decided from it exists, it is a gift tainted with compensation, and it becomes a sale, even if its date is delayed, and what the forbidden permits, which is cooperative insurance, must be explained what it is .

24) What is cooperative insurance: It is that a group of people who earn their profits from a specific job, such as the owners of airplanes and transport, agree among themselves on a specific profit, monthly or for several months, in one fund, and they agree that whoever suffers harm will be compensated from this fund according to a specific system. For example, it is compensated for the whole or half less or more in view of the assets of this fund, and this fund was approved by the Islamic Fiqh Council and those who say it is forbidden, and they justified this that it is free from deception and profit and because those participants in this pattern are considered believers and trustees in this matter, so there is no foreigner as in corporate contracts And because what each of these gives is purely as a donation, as well as what the affected person receives from this fund, as if others donate from their money and installments that they gave to this fund and with this conditioning, it is possible to say that it is dissolved and there is still something in the soul because every payment for the premium is in the face The donation waits instead, which he receives from compensation if he suffers a disaster.And the gift on the condition of compensation implicitly or explicitly given by compensation for the nature of the gift, and the gift on the condition of compensation is a sale, and in this case we will go before something big, which is that what the subscribers pay is a donation based on the hope that the subscriber will compensate for that, as evidenced by that the fund does not compensate non-participants, so their donation is attributable to pending compensation , It is sold by fraud .

25)  What I see in correcting this deal is that the state should undertake it, and establish multiple funds for multiple people according to their professions, provided that the amount of insurance is to the appropriate amount. These installments are only part of what the state does, which is compensation for the affected, because the affected person deserves a guarantee from the house of money in the event of disasters, and by this we have reduced the deception and profit intent that the company is doing, and we have reduced the view of those who allow cooperative insurance, knowing that the Fiqh Council in Makkah Al-Mukarramah In his session, he has prohibited all types of commercial insurance due to suspicion in that. We support it and see what they saw. As for cooperative insurance, they have replaced it just as they adjusted for retirement, so we are with them in the result, not adaptation, and so are we with them according to the definition that I mentioned .

26)  Compulsory or compulsory insurance on cars or others: We look at the necessity or need for the car or the purchased thing. The necessities permit the prohibitions against the death of a person or exposing himself to perdition, and these insurance contracts are not permissible to enter into them except when necessary. If the acquisition of the car cannot be dispensed with and he cannot buy a car, then his ruling is the ruling of the compelled, and if necessity is not fulfilled, it is not permissible to acquire it. Likewise, the Islamic state may not borrow with interest except for an urgent necessity such as buying a weapon, and it is not from the necessity to borrow to build a dance house .

27)  One of the forms of cooperative insurance , which has permitted the complex doctrinal and other synagogues , that the people of the village agrees to donate to a fund shared by everyone to ensure that one of them to harm or cooperate in digging a well to donate equal installments, and Bukhari and Muslim out modern Ashaari and the word of the steam , said: The Messenger of Allah  ﷺ (If the Ash'aris are widowed in the conquest or the food for their children is reduced in the city, they gather what they have in one garment and then divide it among them in one vessel evenly, they are from me and I am one of them ) In Muslim’s commentary by al-Nawawi: What is meant here is not the division known in jurisprudence with its conditions and its prohibition in usurious interests . God knows .