A discussion on the Illah for Riba,

Gharar, Maysir
and Talaqi al-Rukban

Abstract
This paper sets out to seek the effective causes (Illah) behind various prohibitions in the
Shariah, namely Riba, Gharar, Maysir and Talaqqi Rukban. Firstly, we will discuss the
definitions behind several key concepts, then we will proceed to illuminate these concepts
with certain examples from the Quran, Hadith or contemporary cases before deriving the
actual effective cause (Illah).

Mohamad Zaky Jailani

Page 1
 Table of Contents

1 Introduction .................................................................................... 3
1.1 Definition of Qiyas ..................................................................... 3
1.2 Pillars of Qiyas ........................................................................... 3
1.3 Definition of Illah ..................................................................... 4
2 Discussion on Riba, Gharar, Maysir and Talaqqi Rukban .................. 4
2.1 Definition of Riba ..................................................................... 4
2.1.1 Types of Riba.................................................................................................. 5
2.1.2 Illah for Riba ..................................................................................................6
2.2 Definition of Gharar...................................................................7
2.2.1 Types of Gharar ............................................................................................. 8
2.2.2 Illah for Gharar ............................................................................................ 10
2.3 Definition of Maysir ................................................................ 11
2.2.1 Types of Maysir.............................................................................................11
2.2.2 Illah for Maysir ............................................................................................ 12
2.4 Definition of Talaqi Rukban ..................................................... 12
2.2.1 Types of Talaqi Rukban.............................................................................. 12
2.2.2 Illah for Talaqi Rukban .............................................................................. 13
3 Conclusion .................................................................................... 13
4 References .................................................................................... 14
5 Bibliography .................................................................................. 15

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1 Introduction
This paper sets out to seek the effective causes (Illah) behind various prohibitions
in the Shariah, namely Riba, Gharar, Maysir and Talaqqi Rukban. Firstly, we will
clarify and discuss the definitions behind several key concepts, then we will
proceed to illuminate these concepts with certain examples from the Quran,
Hadith or contemporary cases before deriving the actual effective cause (Illah).

1.1 Definition of Qiyas

In its literal meaning, Nyazee (2003) defines the Qiyas as measuring or estimating
one thing in terms of another. Thus, measuring cloth against the metre rod is
Qiyas. It is also applicable when we make two things equal, or compare things
physically or rationally. In the technical sense, as defined by the jurists, it applies
to the assignment of the hukm of an existing case found in the texts of the
Quran, the Sunnah, or ijma to a new case whose hukm is not found in these
sources on the basis of a common underlying attribute called the Illah of the
hukm.
Similarly, Kamali (2013) defines Qiyas as the extension of a Shariah value from an
original case (asl) to a new case, because the latter has the same effective cause
(Illah) as the former. The original case is regulated by a given text, and Qiyas seeks
to extend the same textual ruling to the new case. It is by virtue of the
commonality of the effective cause, or Illah, between the original case and the
new case that the application of Qiyas is justified.

1.2 Pillars of Qiyas

According to Nyazee (2003), Qiyas has four ingredients or elements, namely the
following:
the case (set of facts) mentioned in the text with its hukm;
the hukm of the set of facts mentioned in the text;
the Illah or the underlying cause that has led to the hukm; and

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 the new case or the set of facts for which the hukm has not been explicitly
mentioned and which needs a hukm.

1.3 Definition of Illah

Although Illah is only one of the four pillars of Qiyas, it is perhaps the most
important of all the requirements of Qiyas argues Kamali (2013). Although the
ulema of usul have given various definitions for Illah; according to the majority, it
is an attribute of the asl, which is constant and evident and bears a proper
(munasib) relationship to the law of the text (hukm). It may be: (i) a fact, (ii) a
circumstance, or (iii) a consideration that the Lawgiver has contemplated when
issuing a hukm. In the works of usul, the Illah is alternatively referred to as manat
al-hukm (i.e. the cause of the hukm), the sign of the hukm (amarah al-hukm), and
sabab.

2 Discussion on Riba, Gharar, Maysir and Talaqqi Rukban

Now that we have defined the process of Qiyas and the utilisation of Illah to
formulate judgements and rules, this section will discuss in greater depth the
definitions, meanings and types of Riba, Gharar, Maysir and Talaqqi Rukban
before deriving the Illah for these.

2.1 Definition of Riba

According to Chapra (2006), Riba literally means increase, addition, expansion or

growth. However, not every increase or growth has been prohibited by Islam. In
the Shariah, Riba technically refers to the "premium" that must be paid by the
borrower to the lender along with the principal amount as a condition for the
loan or for an extension in its maturity. In this sense, Riba has the same meaning
and import as interest in accordance with the consensus of all the fuqaha without
any exception.
Chapra goes on further and lists the development of the prohibition of Riba
within four different Quranic revelations:
i. The first of these (30:39), revealed in Makkah, emphasized that while interest
deprived wealth of Gods blessings, charity raised it manifold.
ii. The second (4:161), revealed in the early Madinah period, severely condemned
it, in line with its prohibition in the previous scriptures. It placed those who took
Riba in juxtaposition with those who wrongfully appropriated other peoples
property and threatened both with severe punishment from God.

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iii. The third revelation (3:130-2), around the second or third year after Hijrah,
enjoined Muslims to keep away from Riba if they desired their own welfare (in
the comprehensive Islamic sense).
iv. The fourth revelation (2:275-81), near the completion of the Prophets mission,
severely censured those who take Riba by declaring them to be at war with God
and His Messenger, established a clear distinction between trade and Riba, and
required Muslims to annul all outstanding Riba, instructing them to take only the
principal amount, and to forego even this in case of the borrowers hardship.

2.1.1 Types of Riba

The term Riba is, however, used in the Shariah in two senses. The first is Riba al-
Nasiah and the second is Riba al-fadl. The types of Riba as follows were extracted
from Chapras (2006) paper on The Nature of Riba in Islam.

I. Riba al-Nasiah
The term nasiah comes from the root nasaa which means to postpone, defer, or
wait, and refers to the time that is allowed to the borrower to repay the loan in
return for the addition or the premium. Hence Riba al-Nasiah is equivalent to
the interest charged on loans. It is in this sense that the term Riba has been used
in the Quran in verse 2:275, which states God has allowed trade and forbidden
Riba (interest). The prohibition of Riba al-Nasiah essentially implies that the
fixing in advance of a positive rate of return on a loan as a reward for waiting is
not permitted by the Shariah. Note that the following factors do not affect its
impermissibility:
(i) The rate of return, neither size nor whether it is a fixed or variable portion of
the principal;
(ii) whether it is an absolute amount to be paid in advance or on maturity;
(iii) whether it is a gift or service to be received as a condition for the loan.
The point in question is the predetermined positiveness of the return. According
to the Shariah, it is important to note that, the waiting involved in the repayment
of a loan does not justify a positive reward in itself. This signifies the distinction
that the Quran draws between trade and interest. While trading, an entrepreneur
faces the prospect of making a profit but he also faces the risk of incurring a loss.
In contrast, interest is predetermined to be positive irrespective of the ultimate
outcome of business.

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 II. Riba al-fadl
Although Islam has prohibited interest on loans and allowed trade, there are
restrictions on trades that need to be applied. In the spirit of Shariah, there is a
need to eliminate the injustice that is intrinsic in the institution of interest on
loans as well as all forms of dishonest and unjust exchanges in business
transactions. Significantly, there is also a need to close the backdoor to Riba;
according to the unanimously accepted legal maxims of Islamic jurisprudence,
anything that serves as a means to the unlawful is also unlawful. Thus, it may be said in
brief that anything that is unjustifiably received as extra by one of the two
counterparties to a trade transaction is Riba al-fadl, which may be defined in the
words of Ibn al-Arabi as all excess over what is justified by the counter-value.

2.1.2 Illah for Riba

There are several possible Illahs for Riba. Ibn-Rushd (2003) explains that
according to the Malikis, the unequal exchange of gold against gold and silver
against silver is prohibited as they belong to the class of moneys. The Malikis also
say that the other four commodities which are mentioned by the famous hadith
[From Abu Said al Khudri: The Prophet (pbAbuh) said: "Gold for gold, silver for silver,
wheat for wheat, barley for barley, dates for dates, and salt for salt, like for like, and hand-
to-hand. Whoever pays more or takes more has indulged in Riba. The taker and the giver
are alike (in guilt) Sahih Muslim] are types of foodstuffs which can be stored or
preserved. They argue that the Illah is the quality of storability therefore all
foodstuffs that can be stored are covered by the Hadith. The Shafi'is and Hanbalis
while agree with the Malikis on gold and silver contend that sotrability is not
necessary and the hadith can be extended to all foodstuffs. The Hanafis, however
extended the hadith to all commodities that are normally sold by weight or
measurement.
Meanwhile, Qardawi (2001) explains the Illah for Riba in the following ways:
(i) To prevent appropriating another person's property without giving him
anything in exchange, because one who lends one dirhams for two dirhams gets
the extra dirham for nothing. A man's property is for fulfilling his needs and it has
great sanctity, according to the hadith, 'A man's property is as sacred as his
blood'.
(ii) To prevent people from avoiding work to earn money, since the persons with
dirhams can earn an extra dirham simply through charging interest, either in
advance or at a later date. The value of work will consequently be reduced in his

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estimation, and he will not bother to take the trouble of running a business or
risking his money in trade and industry. This will lead to depriving people of
benefits, and the business of the world cannot go on without industries, trade and
commerce, building and construction, all of which need capital at risk.
(iii) To prevent discouraging people from doing good to one another as well as
prevent ill feelings between different members of society. If interest is prohibited
in a society, people will lend to each other with goodwill, expecting back no more
than they have loaned, while if interest is made permissible the needy person will
be required to pay back more on loans (than he has borrowed), weakening his
feelings of goodwill and friendliness toward the lender. The lender is likely to be
wealthy and the borrower poor. If interest is allowed, the rich will exploit the
poor, and this is against the spirit of mercy and charity. In a society where
interest is lawful, the strong benefit from the suffering of the weak. As a result,
the rich become richer and the poor, poorer, creating socio-economic classes in
the society separated by wide gulfs. Naturally this generates envy and hatred
toward the rich; and contempt and callousness among the rich towards the poor.
Conflicts arise, the socio-economic fabric is rent, revolutions are born and social
order is threatened.
According to Chapra (2006), the Illah is to prevent socio-economic injustice.
Imam Razi posed the question of what was wrong in charging interest when the
borrower was going to employ the funds borrowed in his business and thereby
earns a profit. His well-considered reply to the question was: "While the earning
of profit is uncertain, the payment of interest is predetermined and certain. The
profit may or may not be realized. Hence there can be no doubt that the payment
of something definite in return for something uncertain inflicts harm.
Accordingly, Riba is essentially in conflict with the clear and unequivocal Islamic
emphasis on socio-economic justice.

2.2 Definition of Gharar

Saleem (2012) defines Gharar as literally meaning uncertainty, ambiguity, danger

or peril. Technically, bay al-Gharar refers to a sale contract "which is attractive to
the purchaser in its form but unknown and ambiguous in its substance."
Furthermore, the Qur'an prohibits all those dealings where the intention is to
deceive one of the parties. The Quran specifically states that Muslims should not
"devour one another's property wrongfully" (4:29)

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Similarly Al-Fayumi recognizes Gharar as a kind of uncertainty. Taghreer being
the verbal noun, it also means deception or misrepresentation, which includes
exposing oneself or others or his own property or others to jeopardy. Gharar is
defined as the risk or jeopardy, which is the state of being near to destruction or
wreckage.
Al- Darir has further categorised Gharar under three main headings:
(i) First, Gharar applies exclusively to cases of doubtfulness or uncertainty, as in
the case of not knowing whether something will take place or not. This excludes
the unknown. The definition by lbn Abidin is a case in point: "Gharar is
uncertainty over the existence of the subject matter of sale."'
(ii) Second, Gharar applies only to the unknown, to the exclusion of the doubtful.
The Zahiri school alone adopts this view. Thus according to lbn Hazm: "Gharar
in sales occurs when the purchaser does not know what he has bought and the
seller does not know what he has sold."
(iii) Third, a combination of the two categories above; Gharar here covers both
the unknown and the doubtful, as exemplified by the definition proposed by Al-
Sarakhsy: "Gharar obtains where consequences are concealed." This is the view
favoured by most jurisprudents.

2.2.1 Types of Gharar

Al-Saati in his article, The Permissible Gharar (Risk) in Classical Islamic Jurisprudence
(2003), has elaborated on the different types of Gharar that exist. We will expand
on these types under the following headings:
I. The Prohibited Gharar
This is the gambling type of Gharar that includes the idea of voluntary and
deliberate Gharar taking, also involving sterile transfer of money or good between
individuals, with no value added or created from the transaction.
II. The Permissible Gharar
According to Shatibi, the Hadith (which prohibits Gharar) does not intend to
prohibit all Gharar because jurists permit some transactions, which have Gharar
such as selling what is hidden in the ground and selling a house even though its
foundation has not been seen. Gharar can be permissible when there is no general
agreement among the schools of jurisprudence that this Gharar is prohibited and
the contract that involves this Gharar is invalid. If at least one school permits it
with or without conditions, then it is considered permissible Gharar.

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 III. The Acceptable Gharar
In the Islamic context, jurists define Gharar to mean risk, and some of them tend
to prohibit all risks and Gharar but we found that only gambling and gambling-
like activities are prohibited. In this context, risk and uncertainty are considered
synonyms to Gharar. Meanwhile, almost all economic activities involve
uncertainty or commercial risk or Gharar as the profits out of them are uncertain.
Ibn Taymiyyah said that there is no evidence from Shariah text to oblige
prohibition of all risk (Gharar) as we know that Allah and his messenger do not
prohibit every risk (Gharar). In all trading each party hopes for profit and fears
to lose. This risk is permitted by the Quran, Sunnah and consensus of scholars,
the business man is a risk taker. From the above, we conclude that when the
endogenous or the exogenous uncertainties are the main sources of Gharar then
this Gharar can be considered acceptable Gharar. Examples of exogenous
uncertainty are changes in consumers taste, firms technologies and weather
conditions, and of endogenous uncertainty, the buyers uncertainty about the
suitability of the seller he meets, or the quality of commodity he buys, or the
term of the trade that will take place.
IV. The Mandatory Uncertainty
In this case Gharar (uncertainty) is a prerequisite to the validity of the contract.
This is the well-established view concerning the musharakah, ijarah and mudarabah
contracts. This is based on the Islamic legal maxim Damage and benefit go
together, that is to say, that a person who obtains the benefit of a thing takes
upon himself also the loss from it, and the Islamic legal maxim that is based on
the Prophet (pbAbuh) saying Revenue goes with liability".
Meanwhile, Al-Darir (1997) pointed out that scholars of the Maliki school
distinguished themselves by widening the scope of discussion on Gharar. His
examination of their classification of Gharar compared to the other schools and
helped him to arrive at what may serve as the basic classification of the principles
covering all elements of Gharar, under which minor issues may be subsumed.
I. Gharar in the essence of the contract
This means that the contract has been concluded in words that imply Gharar, i.e.
the Gharar relates to the essence of contract and not to its object. For instance,
Gharar occurs when a person tells another "I would sell you this house of mine at
such price, if a third person sold me his" and the buyer accepts the offer. It is a
Gharar sale because its consequence is not explicit.

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However, Gharar here does not relate to the object of the contract but to the
contract itself because both the buyer and the seller do not know whether the
sale will be concluded or not. This is due to the manner in which the contract has
been concluded, namely, making it conditional upon a matter that may or may
not obtain.
II. Gharar in the object of the contract
The object of the contract is where the effect and outcome of the contract
whatever is covered by the provisions is manifested. In contracts of exchange
(mu'awadhat) the object consists of two things that are exchanged. In a contract
of sale, the object covers both the item sold and the price.

2.2.2 Illah for Gharar

As Islamic Shariah forbids Riba because it leads to exploitation and injustice in

the society, it also forbids Gharar in any transaction to protect the two parties
from deceit, ignorance and uncertainty. The Hadith intends to prohibit Gharar
that can cause dispute and cannot be tolerated, that is why certain types of
Gharar are permissible.
According to Saleem (2012), the main reason for the prohibition of Gharar is that
contracts involving Gharar are fraudulent in nature. There is an intention within
the contract to deceive people into thinking that they are getting a better deal
when it is not the case in reality. Thus, Gharar enables a person to obtain the
property of others unlawfully, which may subsequently lead to disputes and
disagreements between the parties.
Ibn Taymiyah (1998) identifies the corrupting factor in Gharar is the fact that it
leads to dispute, hatred, and devouring others wealth wrongfully (kawnuhu
matiyyat). Ibn Taymiyah and Ibn Al-Qayyim consider exorbitant Gharar a type of
gambling. According to them, Gharar obtains where consequences are concealed,
selling with excessive Gharar is Maysir which is gambling: that if camel or horse
lost, its owner can sell it with a very high risk and very low price, so if buyer finds
it, the seller will tell him, you deceived me and bought it with very low price, but
if he could not find it, the buyer would complain that he paid and got nothing in
exchange. This will result in enmity and hatred between them. Exorbitant Gharar
sale is vanity and injustice and causes enmity and hatred in society. Examples of
this typical Gharar are pebble, touch and toss sales. Authentic hadiths have been
reported forbidding these types of sales. The majority of jurists are in agreement
that the common reason for prohibition of all these types of sale is the fact that

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they involve exorbitant Gharar. However, it is worthwhile to note that this
corrupting factor would be overruled if it were opposed by a greater benefit (al-
maslahah al-rajihah).

2.3 Definition of Maysir

According to Ayub (2007), the words Maysir and Qimar are used in the Arabic
language identically. Maysir refers to easily available wealth or acquisition of
wealth by chance, whether or not it deprives the others right. Qimar means the
game of chance one gains at the cost of other(s), very much a zero-sum game; a
person puts his money or a part of his wealth at stake wherein the amount of
money at risk might bring huge sums of money or might be lost or damaged.
While the word used in the Holy Quran for prohibition of gambling and
wagering is Maysir (2:219 and 5:90, 91), the Hadith literature discusses this act
generally in the name of Qimar. According to the jurists, the difference between
Maysir and Qimar is that the latter is an important type of the former. Maysir,
derived from Yusr, means wishing something valuable with ease and without
paying an equivalent compensation (Iwad) for it or without working for it, or
without undertaking any liability against it, by way of a game of chance. Qimar
also means receipt of money, benefit or usufruct at the cost of others, having
entitlement to that money or benefit by resorting to chance.

2.2.1 Types of Maysir

Ayub goes on to claim that a number of conventional financial transactions and
bank schemes/products include traces of Riba as well as Maysir. Similarly,
conventional insurance is not Shariah-compliant due to the involvement of both
Riba and Maysir. Governments and public/private sector corporations also
mobilise resources on the basis of lottery and draws, which come under the
banner of gambling and are, therefore, prohibited.
Futures and options contracts that are settled through price differences only are
also covered under gambling. In Websters dictionary, a lottery has been defined
as a distribution of prizes by lots or chance. In practice, a number of forms of
lottery are prevalent, some of which might be valid, but the majority are invalid
from the Shariah point of view.
In some lottery schemes, tickets, coupons or tabs are given on the purchase of
the product, leading further to the drawing of lots. In such cases the inducement
is by an uncertain and unknown event, depending on chance, and such a

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promotion of sale is clearly hit by the injunction of Islam, generally prohibiting
gambling, wagering and swearing.

2.2.2 Illah for Maysir

Saleem (2012) explained that in gambling, the winner and the loser wins or loses
by mere chance. The winner does not lawfully earn what he has won, and the
loser loses his money without any fair compensation. Gambling allows the winner
to consume others' property unlawfully and unjustly as in gambling there is no
exchange of counter-values between the parties. Consequently it gives rise to
hostility, hatred and enmity between the winners and the losers, it is for these
reasons that all agreements and contracts that involve elements of Maysir are
prohibited. Islam encourages people to earn their living through honest effort
and prohibits appropriating others' properties by chance.

2.4 Definition of Talaqi Rukban

Technically the meaning of Talaqqi Rukban is when a city-dweller meets a
caravan in order to buy from them before they reach the market and find out the
prevailing price for their goods. The Prophet (pbAbuh) explicitly prohibited this
practice, saying, Do not go out to meet caravans. He also said, Do not
intercept goods before they are offloaded in the market. If it does occur, the
importer of the goods has the option to annul the sale once he reaches the
market and finds out the going price. (ifkir.isra.my, 2014)

2.2.1 Types of Talaqi Rukban

The contemporary cases for Talaqqi Rukban seem to be diluted with the presence
of many middleman services that facilitate trade across multiple markets globally.
Usually, they provide market access (possibly in terms of relevant licensing) or are
able to enjoy economies of scale by importing multiple products from various
manufacturers in Country A to Country B. The availability of the internet as a
marketplace makes it even more difficult to define the term market itself, the
internet brings markets closer to the customer.
In the modern age, there is also the concept of arbitraging, whereby one asset is
bought in one market and resold immediately at a profit in another. In
contemporary finance, this applies in the buying and selling of financial assets and
exists due to market inefficiencies in global or regional markets. With almost
perfect knowledge of market prices, arbitrageurs spend the entire day scanning
markets for such inefficiencies. Jurists need to identify if this is Shariah

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compliant in practice, however, it is interesting to note that such financial
products may not be Shariah compliant in the first place.

2.2.2 Illah for Talaqi Rukban

Jurists have differed over the wisdom behind this prohibition. Some say that it is
to prevent harm to the importer; some say it is for the benefit of the market and
the residents of the city; and some say that it is for the benefit of both the
importer and the people. Some jurists say that it is in order to prevent deception
of the importer through false information about the market prices. (ifkir.isra.my,
2014)

3 Conclusion
At this point, we have covered the process of Qiyas and identified the Illah as the
most important component in this process. We have discussed various rulings
and prohibitions around Riba, Gharar, Maysir and Talaqqi Rukban and identified
multiple Illahs for these as well. However, there is a need to identify the main
Illah to understand the effective cause of a ruling and to be able to extend this
specific cause to new cases.
For Riba, we have identified the Illah as the prevention of socio-economic
injustice. As Qardawi (2001) explained earlier, in a society where interest is lawful,
the strong benefit from the suffering of the weak. This causes the rich to become
richer and the poor, poorer, creating socio-economic classes in the society
separated by wide gulfs. Naturally, this generates envy and hatred toward the rich;
and contempt and callousness among the rich towards the poor.
As for Gharar, we feel that the Illah is to prevent anyone from obtaining the
property of others unlawfully and fraudulently - this will subsequently lead to
disputes and eventually hatred and ill feeling, as well as allows one to devour
others wealth wrongfully. Gharar may be ambiguous but its presence clearly
implies intention within the contract to deceive people into thinking that they
are getting a better deal when it is not the case in reality.
As for Maysir, we have identified that the Illah is to prevent consuming others'
property unlawfully and unjustly since there is no exchange of counter-values
between the parties. Similar to the first two prohibitions, subsequently it gives
rise to hostility, hatred and enmity between the winners and the losers.

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Lastly, for Talaqqi Rukban we feel that the Illah is to prevent someone from
disrupting the market process. By intercepting the supplier, one is actually
hijacking the supply route into the market and holding it to ransom after. This is
unjust and unfair to the market participants.

4 References
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Islamiyyah.
Al-Darir, S. 1997, Al-Gharar in contracts and its effects on contemporary transactions, IDB
Eminent Scholars Lecture Series, No. 16. Jeddah: IDB, IRTI.

Al-Fayumi, A., n.d., Al-Misbah Al-Munir.

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5 Bibliography
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