The philosophical and conceptual foundations behind the prohibition on riba (interest) and gharar (uncertainty) can be derived through the Shuratic process in discursive interpretation of the Qu’ran and Sunnah. Riba (interest) is in fact just a form of gharar (uncertainty). Gharar (uncertainty) opens the door for speculation, ruthless greed, immorality, and social decay. Both riba (interest) and gharar (uncertainty) result in social harm in the form of inflation, unemployment, volatility, instability, and environmental degradation. Riba (interest) and gharar (uncertainty) are both prohibited under Shari’ah as their harm outweighs any benefit, however, gharar (uncertainty) is allowed in instances where the benefit outweighs the harm. This short article will focus on the definition and concept of gharar or uncertainty in Islamic finance.
Gharar (uncertainty) originates from the Arabic verb gharra, which means to deceive. The word for gambling in Arabic, maysir, comes from the word yasira, which means to be easy and yassara, which means lucky chance or easy success at getting something of value without earning it (Kamali, 2000: 151).
Various classifications of gharar (uncertainty) include pure speculation where the outcome depends on chance or gambling, uncertain outcome where the counter-value is uncertain or not realized, inexactitude of object, and unknown future of object. Speculation according to Kamali is the purchase and sale of an asset in the expectation of a gain from changes in the price of that asset (2000: 147). These conditions allow for the use of deception for material gain at the expense of the well-being of one of the parties and humanity as a whole.
According to Kamali “The Qu’ranic prohibition of maysir is based on the premise that an apparent agreement between the two parties is in actuality the result of unclean and immoral inducement, which is driven by the hope of making a profit at the expense of the other party to the agreement” (2000:152).
The gambling parties thus court a risk, which is of their own creation and which involves both the hope of gain as well as the fear of loss in a way that is not a necessary part of any of the normal activities in life
(Kamali, 2000:152). Kamali explains that
If in a contract of sale one party receives what was due to him, but the other does not and the latter’s side of the bargain is open to risk-taking (mukhatarah) of a kind that frustrates and nullifies his right, then the sale partakes both in gharar and gambling at the same time (2000:154).
Gharar (uncertainty) can be related to risks arising from lack of knowledge about the contract (object, price, time of delivery), uncertainty about the existence and delivery of the object, and /or uncertainty of the outcome. Basically, gharar (uncertainty) relates to risks arising in contracts that dilute the pillars and objective of sale. Al Karshi states that the legal cause (illah) of the prohibition of gharar (uncertainty) are the inability to complete the sale, fairness in contracts including preventing the unjust devouring of people’s wealth (akl al-mal bi’l-batil) and the inequality in the counter-values of sale, and preventing the potential for dispute and hatred. Kamali explains that “Gharar occurs in a contract when one of the parties takes what is due to him but the other does not receive his entitlement. If his right continues to be unfulfilled, the first becomes guilty of the wrongful devouring of the property (akl al-mal bi’l-batil) of his counterpart in the transaction, and a gharar sale of this kind engages in gambling and punting (al-qimar wa’l maysir), which the Shari’ah has forbidden (2000:90). Devour not each other’s properties unlawfully unless it be through trading by your mutual consent (al Nisa, 4:29).
Kamali emphasizes that gambling or qimar is a combative relationship between two contracting parties, each of whom undertakes the risk of loss and the loss of one means gain for the other (2000:151). Kamali says that it is a violation of the law of equivalence, a kind of robbery by mutual agreement, like dueling, which is murder by mutual agreement (2000:151). “Gambling also consists of an appeal to chance, and making chance the arbiter of one’s conduct is to subvert the moral order and stability of life. It focuses attention on material gain and unwarranted reward in a way that is usually impulsive and can be so overwhelming as to divert attention from the pursuit of worthier activities in life” (Kamali, 2000:151). Kamali elaborates
Gambling destroys cooperation and fraternity in favor of combativeness and the desire to win, and it has no harmony with the normal processes that are important to civilization. It is characterized as a morally unclean activity, which sows the seeds of enmity and hatred among fellow human beings, as well as creating a barrier to piety, spiritual awareness, and the remembrance of God (2000:151).
Prohibited gharar (uncertainty) must fulfill four conditions. Gharar has to be large as small amounts do not invalidate a contract; gharar must be in commutative (exchange) contracts; gharar should be linked to the principle object of the contract and not something attached to it; and gharar is allowed in cases of public need or necessity. Kamali states “Gharar is, however, a broad concept and may carry different shades of meanings in different kinds of transactions” (2011: 84). For instance, there may exist strong, medium, or weak gharar (uncertainty) in a contract and according to various scholars and schools, each form of gharar (uncertainty) may be permissible or impermissible. Mawil Izzi Dien explains that “This prohibition (on gharar) is deduced by examining various contracts, which are prohibited because of inherent gharar, such as the prohibition of exchange of that which is not measurable for that which is measurable, makil, and the prohibition of exchanging dry dates for fresh ones” (2004:74).
Gharar (uncertainty) can be found in the essence or object of the contract. It occurs in the essence of the contract when there are two sales in one, down-payment (Arbun) sales, conditional sales, or pebble, touch, or toss sales where the sale depends on an unrelated event, suspended (mu’allaq) sales where the sale is realized based on the outcome of a random event, and future sales, where the delivery of both counter-values occurs in the future and there is a sale of debt- for- debt or bai al kali bi al kali. Kamali says that in terms of pebble, touch, and toss sales (al-mulamasah wa’l munabadh), sales such as the offspring of an unborn animal (habal al-habala) or the sale of fruit prior to its ripening, sale of the unseen, sale of that which is unknown (bai al-ma’dum wa’l-majhul), and sales in which the vendor cannot deliver are forbidden because of the presence of risk-taking (mukhatarah) that involves devouring the property of others (2000:90). In terms of Arbun sale, it refers to a sale in which the buyer deposits money with the seller as part payment of the price in advance, but agrees that if he fails to ratify the contract, he will forfeit the deposit money, which the seller can then keep (Kamali, 2000:90). The question to be asked in all of these is whether they involve unlawful appropriation (alk al-mal bi’l-batil) and, if so, the sale is invalid and partakes of gambling (Kamali, 2000:154).
In terms of gharar in the object of the contract, ignorance of the object can exist in the object itself, the type of object, or the attributes and features of the object. There can be ignorance of the genus, species, attributes, quantity of the object, specific identity of the object; time of payment in deferred sales, inability to deliver object; time of payment in deferred sales; inability to deliver object; contracting on a non-existent object, and not seeing the object (Ayub, 2007:60). Even if all conditions of contract are fulfilled, the object has to be seen. In relation to non-existent objects, Ibn Qayyim and Sanhuri classified four cases: (1) When the object exists in essence, but comes into completion thereafter; (2) when the object is non-existent at the time of contract, but certainly exists in the future; (3) when the object is non-existent at the time of contract and the existence in the future is uncertain; and (4) when the object is non-existent at the time of contract and is expected not to exist in the future. Kamali elaborates that “of these four types, only the last two present situations in which gharar is deemed to be excessive and would, therefore, invalidate the contract (2000:91). Kamali explains that “as for the first two, Ibn Qayyim and al-Sanhuri have both concluded that gharar in them is negligible and the sale in both cases is therefore valid” (2000:91). Ayub says that in order to avoid uncertainty, Islamic law denies the power to sell (1) Things which, as the object of a legal transaction, do not exist; (2) Things which exist, but which are not in possession of the seller or the availability of which may not be expected; (3) Things which are exchanged on the basis of uncertain delivery and payment (2007: 60).
The lack of knowledge in terms of contract and object and non-existence of object creates risk (gharar). In Shari’ah, risks cannot be sold separately (unbundled) as this does not fall under the category of mal (property). Ignorance and non-existence of object cannot be compensated with price and risk itself cannot be priced and sold, but risk associated with sale can be priced and sold (bundled risk). In order to illustrate this point, Kamali interestingly points out that in the case of options, the sale is valid even though one of the counter-values consists merely of granting a right, or a privilege, as opposed to a tangible asset, service or usufruct (manfa’ah) that has no concrete reality and existence at the time of contract as it can be bought and sold in the same way as a tangible asset, or mal” (2009:194). This is of course debatable amongst the scholars and the different schools of Islamic jurisprudence. Kamali points that “the Shafi’s and Hanbalis include usufruct under the definition of (mal) property, but the Hanafis and Malikis do not” (2000:194). According to Kamali, the option price or premium is normally paid in cash and the price is in this case mal (property) (2000:201). In a contract of sale, each party must receive the counter-values, the object of sale and price. This is referred to as qabd and taqabud. The seller must deliver the goods (taslim) and the buyer must take possession (qabd). In salam and istisnaa, the requirement of qabd has been omitted due to necessity of the people (Kamali, 2009: 122).
According to Visser, “the ban on gharar (uncertainty) implies that commercial partners should know exactly the counter-value that is offered in a transaction” (2009:45). Kamali states that gharar can be summarized in four main ways. These are on account of uncertainty and risk pertaining to the existence of the subject matter of a sale, or its availability, uncertainty about the quantities involved and lastly, uncertainty about time of completion and delivery (2000:93). Visser says that in order to avoid gharar (uncertainty), “one should make sure that both the subject and prices of the sale exist and that parties are able to deliver; specify the characteristics and the amounts of the counter-values; and define the quantity, quality, and date of future delivery” (2009:45). Visser also says that “a seller/financier first must own the goods before they can sell or lease them, which implies that the goods must exist before they can sell or lease them” (2009:75). One should also possess or constructively possess the subject-matter of sale before sale (qabd). Another aspect of gharar (uncertainty) concerns complexity in contracts. A contract should not cover more than one transaction and thus, there is a prohibition on two sales transactions in one. For example, Visser says that a sales transaction and a lease agreement cannot be combined into one contract (2009:75). Visser explains that Muslim jurists treat the ban on gharar (uncertainty) as an injunction to maintain commutative justice or the just price, which is the market price (2009:47). Before entering into a contract, both parties should have full knowledge of relevant facts, including the market price (Visser, 2009:47). Ayub says that to avoid gharar (uncertainty), the contracts must be free from excessive uncertainty about the subject-matter and its counter-value in exchanges; the commodity must be defined, determined, and deliverable and clearly known to the contracting parties, quality and quantity must be stipulated, a contract must not be doubtful or uncertain so far as rights and obligations of the contracting parties are concerned, there should be no Jahl or uncertainty about availability, existence, and deliverability of goods and the parties should know the actual state of the goods (2007:61).
Mawil Izzi Dien says “The prohibition related to these contracts is established due to the potential for deception that could result from not knowing the quantity of one of the exchanged commodities” (2004:74). Gharar (uncertainty) leads the financial system into a zero-sum game, where one’s benefit is someone else’s loss. However, gharar is allowed in circumstances where the harm outweighs the benefit. Kamali says “Should there be a public need for it, gharar, even if excess priority by virtue of the Qu’ranic principle of removal of hardship” (2011:84). The Shari’ah thus validates salam (advance purchase) and istisna’a (manufacture contract) regardless of the gharar (uncertainty) elements therein, simply because of the people’s need for them” (2010: 85). However, gharar is for the most part prohibited as it promotes immorality, moral and social decay, societal disintegration, volatile markets and financial instability, and opens the door for deception and ruthless greed. In fact, “to Ibn Taymiyyah, the evil of gambling is greater than riba, for gambling combines two evils: the unlawful acquisition of property and the playing of an unlawful game, both of which are haram” (Kamali, 2000:151).
Despite clear rules on riba (interest) and gharar (uncertainty) found in the Shari’ah, Islamic finance and banking today still incorporates elements of riba (interest) and gharar (uncertainty) in its practice as well as utilizes debt rather than equity- financing.