Release of a debt or right (ibra')

The Kuwaiti Encyclopedia of Fiqh defines release (ibra') as a person's dropping of a right he holds against another's liability or in his hands. Where the right is owed by no one, such as a right of pre-emption, leaving it is a pure dropping, not a release. The Encyclopedia states that release is permitted in general, and that the jurists differ on whether it is a dropping or a transfer of ownership, with the majority holding it a dropping. It sets out its pillars, wording, acceptance, conditions and effects in the four Sunni schools. ^{1 2 3}

Linguistically, ibra' means clearing and freeing from a thing and keeping away from it. As a term, it is a person's dropping of a right he holds against another's liability or in his hands. If the right is owed by no one, such as a right of pre-emption or a bequeathed right of residence, leaving it is a pure dropping, not a release. The Encyclopedia treats dropping (isqat) as the wider term: every release is a dropping, but not every dropping is a release. ^{1 4}

It distinguishes release from acquittal (baraa), which is its result and may come by payment, delivery or stipulation, or by removing the cause of liability. It distinguishes it from mubara'a, a name for khul' between spouses in which the wife drops her claim against her husband. It distinguishes it from istibra', which means establishing that a womb is clear or seeking the cleanness of the two passages. ^{1 5}

It distinguishes it from a gift: a gift of a debt to the debtor is, for the majority, the same as release, while for the Hanafis they differ over the right to take back. It distinguishes it from settlement (sulh): where a settlement is made on acknowledgement, dropping part of a right and paying the rest, it resembles release. It distinguishes it from acknowledgement: a claim of release is an acknowledgement that the liability exists together with a claim that it has been dropped. Release is the opposite of guarantee, which is why the Shafi'is placed most of its rulings under guarantee. Remission (hatt) and abandonment (tark) come close to it in meaning. ^{4 6 7}

Release is permitted in general, and all five rulings can apply to it. It is obligatory where it follows a receipt that is owed, since it is an acknowledgement of discharge to the one entitled to it. An example in salam: if the buyer of goods brings the price due now, for the purpose of discharge, the seller is compelled to accept or to release. It is forbidden when it comes within a void contract, since keeping a void contract in place is forbidden. It is disliked if a person in terminal illness releases more than a third of a debt, and the heirs do not consent, because it harms the heirs. Its general ruling is recommendation, a kind of kindness; for this reason al-Khatib al-Shirbini said that it is sought and so it is made broad. The Encyclopedia cites the verse on respite for the insolvent debtor, al-Baqara 280, and hadiths urging creditors to release, including the hadith of Jabir about the repayment of his father's debt and the hadith of Ka'b ibn Malik. Some Shafi'is held that release of an insolvent debtor is better than a loan. ^{7 8}

Outside these cases, release stays on the original permissibility, especially where the releasor cannot recover his right from a wrongdoer, since kindness is not the point there. ²

Some authors divide release into release of dropping (isqat) and release of receipt (istifa'). The second is an acknowledgement that payment or receipt has happened, and a kind of acknowledgement. The division shows its effect in guarantee: if the creditor tells the guarantor "I am discharged from you regarding the money", both the guarantor and the debtor are discharged, and the guarantor may claim from the debtor, since this is a discharge of receipt. But "you are released from the money" or "I release you" is a dropping, and no right of recourse follows. The Encyclopedia says it has not found this division stated explicitly outside the Hanafi school, though the other schools have forms in which they distinguish the two. Where the wording is unqualified, custom governs; Ibn 'Abidin chose to read it as receipt, since in his time nothing else was understood. ^{8 2 9}

The jurists differ on whether release is a dropping or a transfer. The majority of Hanafis, a view among Malikis and Shafi'is, and the prevailing Hanbali view hold it a dropping. Al-Subki argued that if it were a transfer, release from specific objects would be valid, and it is not. Some Shafi'is and Ibn Muflih held it a transfer in one respect, the intended purpose being dropping. Ibn Muflih reported that a group of Hanbalis held it a transfer. Ibn al-Sam'ani of the Shafi'is held it a transfer by the releasor and a dropping from the released, outside of its use against divorce, because a debt is property and property shows its value in the hands of the one who holds the debt. Al-Nawawi held that no single ruling can be preferred in all cases; the Encyclopedia concludes that release combines both meanings, and that one prevails according to the case. ^{2 10}

Among the results of the dispute: the Hanafis allowed the creditor to appoint the debtor to release himself, on the dropping view, but not on the transfer view. For the Hanbalis, release from zakat does not count, because there is no real ownership. ¹⁰

For the majority, release has four pillars: the wording, the releasor, the released and the matter released. For the Hanafis, the only pillar is the wording. ¹⁰

Its offer is made by any word that shows the right is dropped, either explicitly or by implication with a clear sign, and the wording must exclude any possibility of exchange or of deferring the demand. "I release you on condition that you give me such-and-such" is a settlement for money; "I release you from the due date of the debt" defers the demand. Release for a fixed period is not valid, as in "I release you from what I have against you for a year"; an unqualified release is valid on the basis that it lasts for ever, which all agree. The words on which the wording turns include dropping, transfer, substitution, permission, remission, pardon, lowering, abandonment, giving in charity, gift and bestowal, and custom and context decide among them. The Encyclopedia notes that the jurists support calling release by the words pardon and charity from verses on dower, blood-money and respite, among them al-Baqara 237, al-Nisa' 92 and al-Baqara 280; these are cited here only for the wording, not for any rule. ^{10 11 12}

The jurists differ on whether release depends on acceptance. The majority (Hanafis, the sounder Shafi'i view and the Hanbalis) hold it does not, since it is a dropping, like divorce, manumission or retaliation. The sounder Maliki view and another Shafi'i view require acceptance, since release transfers ownership. Al-Qarafi said that requiring acceptance is the apparent Maliki position, because a release can impose a favour on people of honour, so they are given the choice to accept or refuse. The Hanafis hold that where a contract requires delivery in the session, such as exchange or salam, release of its price needs acceptance. ^{11 12 13}

Where acceptance is not required, refusal does not undo a release, according to the Hanbalis, the sounder Shafi'i view and the weaker Maliki view, because it is a dropping of a right and not a transfer of a thing. Where acceptance is required, refusal undoes it according to the sounder Maliki view and the other Shafi'i view, and the Hanafis who gave weight to the transfer side. The Hanafis exempt some cases from refusal: release within a referral (hawala); release of a guarantor, on the sounder view; a release the released person asked for and then gave; and a release the released person accepted and then refused. ^{13 14}

The releasor must have the capacity to donate: he must be of sound judgment and not restricted for prodigality or indebtedness. He must have authority over the released right, as its owner, as an appointed agent, or as an unauthorised agent whose act the owner later approves, on the view of those who validate such acts. Reality counts, not belief: a son who releases a debt owed to his father, not knowing that the father has died, is valid if the father had in fact died when he released it. The Hanafis and Hanbalis hold this; the Shafi'is differ according to whether release is a dropping or a transfer. Consent is required: release under duress is invalid, and so is a release made in jest, because it implies the discharge of a liability. The Hanbalis hold that a debtor who hides the amount of the debt from the creditor, for fear that he would not release it if he knew, has vitiated the creditor's consent. ^{14 15}

An agent to release needs a specific authority; general authority in another contract does not suffice. The exception is where a creditor appoints someone to release his creditors and that person is one of them: on the sounder view he does not release himself unless expressly permitted. The release of a person in terminal illness is not effective for any of his debtors where the estate is wholly consumed by debts, because the rights of the creditors are engaged. Where the released person is an heir, the whole release depends on the heirs' consent. ^{15 16}

The released person must be known and identified. Release of one of several debtors without designating him is invalid, unless the releasor meant a specific debtor or a limited group of people. Release may be given to a person who denies the debt. ¹⁶

On whether release of an unknown amount is valid, there are three positions. The majority (Hanafis, Malikis and one Hanbali narration) hold it valid, since release is a gift and a gift of an unknown thing is permitted, and because ignorance of the dropped amount does not lead to dispute. The second, a Hanbali narration, holds it valid if the amount cannot be known and invalid if the debtor concealed it. The third, the Shafi'i view and another Hanbali narration, holds it invalid in every case. The Shafi'is make two exceptions: release of an unknown blood-money, and release framed by a limit that the releasor is certain falls below the debt. Al-Ramli added that release of a person's obligations after his death is valid even with ignorance, as it runs like a bequest. The Encyclopedia notes that the Shafi'is treat only unknowns that are not easily ascertained as affecting validity; an amount that can easily be known, such as a share in a known estate, is not unknown in the relevant sense. ^{16 17}

Release must not change a ruling of the law, such as release from the requirement of mutual receipt in exchange, from a right to take back a gift or bequest (with a Maliki difference), from residence in the period of waiting, or from guardianship over a minor, since whatever changes what the law has set is void. Nor may it cause the loss of another's right, such as releasing a divorced mother from custody when the custodian also has a right. Release requires that the releasor already own the right released, since no one may dispose of another's property without authority or unauthorised action. This condition is agreed among the jurists where the releasor appears as an owner. ^{17 18}

The reason given for prior ownership is that the debtor, on paying, comes to own a like sum owed to the creditor, so debts are settled by their equivalents; release is treated in the same way. Release after a right has been paid is valid, because what is discharged is the demand, not the debt; release of a settled debt gives the debtor a right to recover what he paid if the release was a dropping, and no right if it was a receipt. The wording decides which, and custom governs unqualified wording. If a wife's divorce was made conditional on her releasing her dower, and she then paid it, the conditional divorce is not cancelled. ^{18 9}

Release must generally come after the right is due. The jurists agree that release before its cause exists is invalid, since a right that has no cause is wholly void and there is nothing to drop; a release of this kind is a mere promise and may be withdrawn. Where the cause exists but the right is not yet due, the majority (Hanafis, the more likely Shafi'i view and the Hanbalis) hold that due-ness is a condition, citing the hadith "there is no divorce and no manumission in what one does not own", and the Hanafis give the example of release from marital maintenance before it is fixed. Where a thing is seized, the owner's release from the guarantee of return is valid, because the return is then due; if the usurper consumes it, or refuses it after the demand, the release has no effect and the value is owed. Maliki scholars differ on whether the cause alone suffices, and the Encyclopedia's account of Hattab leans to the cause alone. The Hanbalis permit release before the debt falls due, since the release attaches to the right, not to its time of falling due. ^{9 19 20}

The object of release may be a debt in the liability, a specific thing, or a right that can be dropped. There is agreement that debts fixed in liabilities may be released. Release of a specific thing as such, in the sense of dropping it, is invalid by consent, since things cannot be dropped; what is meant is release from its liability or from a claim to it. The Malikis say that release of a thing means dropping the claim to its value where the releasor has consumed it, and dropping the claim by withdrawing it where it still exists. The Hanafis distinguish release of a thing expressly from release of it by implication, as in a settlement; and a general release includes things as well as debts. ^{20 21}

Where a thing is guaranteed, as with a usurped house, release from it is valid whether the thing is lost or still there: a lost thing is like a debt, and a surviving one is a release from its guarantee, so it becomes a deposit. Release of a thing held as a trust (amana) is valid judicially but not in religious conscience. The rights are divided into rights of God alone, rights of the servant alone, and mixed rights in which one side predominates; they are also financial or non-financial. Release from a servant's right, such as surety or referral, is valid by agreement. Release from a right of God, such as the hadd for fornication, is not valid, nor is release from the hadd for slander after it has been claimed, or from the hadd for theft after it has been brought before the judge. Release from discretionary punishment for slander without a hadd is valid, since the servant's right predominates. ^{21 22}

A release of a claim may be general or specific, and may be given directly or by implication. A release of the claim in general, dropping the right to contest anyone at all, is not allowed, since it covers what exists and what does not yet exist, and a release of a cause that has not arisen is void by agreement. A release relating to all claims up to the date of the release is valid, and no later claim based on an earlier right is heard. A specific release, concerning one particular thing, is valid by agreement, and no later claim to that thing is heard. The Shurunbulali held that there is no difference, in the general form, between a release stated as a report and one made as a declaration. Release of a claim by implication follows from a release of the thing, since a release of the thing itself is void. ²²

Release is general or specific. A general release covers every thing, debt and right, and its wording has many forms, where custom plays a role. The Hanafis gave a detailed account of general release that no other school states explicitly: it is the same whether made as a report ("he is free of my right") or as a declaration ("I release you from my right"), following Shurunbulali. A specific release has several forms: release of a particular debt, or of all debts in general ("I release you from what I have against you"); release of a particular thing, such as "I release you from this house", or of everything; and release limited to trusts rather than guaranteed property. ²³

Release follows the generality or particularity of its wording and its object. A general release includes every right, including non-financial rights such as surety for the person, retaliation and the hadd for slander, and includes the price, the rent, the dower and blood-money, and goods that are guaranteed, such as the usurped, or held in trust, such as a deposit or a loan. ^{23 24}

Release does not cover debts or rights that arise after its date; it is limited to what came before. No claim based on something before the date of a general release is heard afterwards, because the cause of entitlement must exist for release to be valid. A specific release of a particular thing is not heard as a claim where the releasor claims it for himself; but if he claims it for another, by agency or guardianship, the claim is heard, unlike an acknowledgement of a thing belonging to another. Release does not cover the guarantee of title that arises after the title is claimed and a judgment for return is given, since that comes later. The Hanafi judge Qadi Khan wrote that a prior release does not apply to a later debt. The Malikis hold that a releasor's claim that his release applied only to the matter in dispute is not accepted, nor a claim that he meant it to be limited to a specific thing; the Hanbalis differ, accepting a claim that some of the debt was held back in the heart and allowing the opponent to make him swear. ^{24 25}

A claim that the release was given from ignorance of the amount is accepted only with evidence, and so is a claim of forgetting. The Shafi'is distinguish: where the releasor personally caused the debt, a claim of ignorance is not accepted; where it was referred to him at the time of the cause, it is accepted; a claim of forgetting is accepted on oath. ²⁵

Release may sometimes reach a person other than the released. If a seller releases the buyer from part of the price, the Hanafis and Malikis say the pre-emptor benefits from the reduction, provided that the remainder can serve as the price; the Malikis and Shafi'is restrict the benefit to the buyer and leave the pre-emptor to take the price in full or leave it. In guarantee, release of the principal reaches the guarantor, while release of the guarantor from the guarantee alone releases only him, since his release drops the security and does not necessarily drop the debt. Al-Ramli held that release of the debt itself releases the principal, since the debt is one even if its places differ. Where several guarantors follow one another, release of a later one reaches those after him, since they are his branch, but not those before him, since a principal is not released by the release of his branch. In usurpation, release of the usurper of the usurper releases the first usurper too, but release of the first usurper alone does not release the second. ²⁴

A conditional release (ta'liq) ties its existence to another event, and thus prevents formation until the condition is met; a qualification (taqyid) limits the effect of an existing act by a condition and does not affect its formation; a dependence (idafa) defers the start of the ruling to a future time. Some forms look alike, and jurists call them conditional for convenience. ^{24 25}

A release conditional on a condition that already exists is in effect immediate. A release conditional on death is treated like a dependence on what follows death. A release conditional on a suitable condition, such as "if I owe you anything, you are released" or "if I die, you are released", is valid by agreement; the Encyclopedia cites a companion, Abu al-Yusr, who told his debtor "if you find payment, pay; if not, you are free", and was not blamed; Ibn Muflih called this sound, and Ibn Taymiyya approved it. For other conditions, the schools differ. The Hanafis, Shafi'is and the stated Hanbali narration forbid it whatever the condition, since release has a transfer aspect and conditions suit only pure dropping. A view among some Hanafis allows it when the condition is customary and forbids it otherwise. The Malikis and one Hanbali narration allow it in every case, because release is a dropping. ^{25 26}

Al-Babarti gave a rule to tell a qualification from a conditional release: a qualification does not show the form of a condition and has no conditional particle, as in "I release you on condition that you do such-and-such"; a conditional release uses one, as in "if you do such-and-such, you are released". In meaning, a qualified ruling holds now, subject to lapse if the condition is not met; a conditional ruling does not hold now, but may hold if the condition is met. Al-Kasani put it more briefly: a conditional form conditions the contract, a qualification conditions its cancellation. The four schools in general hold a release qualified by a condition valid, each according to its general view of conditions. ²⁶

A dependence on any time other than death voids the release, according to the Hanafis, and the Encyclopedia has not found any other school that accepts dependence. A dependence on death alone is valid, since it is a bequest of release. ²⁶

If a creditor releases part of a debt without any condition, the release is valid by agreement, and the Encyclopedia cites the hadiths on remission, including the hadith of Ka'b about reducing half of a debt. If the release of part is conditional on payment of the remainder, the Hanafis, Malikis and Shafi'is hold it valid, because it is receipt of part and release of the rest; the Shafi'is require both the words of release and of settlement together. The Hanbalis hold it invalid, because the creditor in effect trades part of his right for another part. If the release of part is conditional on the early payment of the rest, the Shafi'is hold it invalid, since it resembles the usury of the pre-Islamic period. If the part is paid without condition and the rest is then released, it is valid. The Hanafis hold that where no fixed day is set for the early payment, the debtor is discharged whether or not the rest is paid; if a fixed day is set and he fails to pay by it, he is not discharged. Abu Yusuf holds that where a day is set without the further phrase, it is treated as release without a day. ^{26 27}

The Shafi'is allow a consideration to be given in return for release: the releasor then owns the consideration and the debtor is discharged. If a debtor gives part of the debt on condition that the rest is released, it is not an exchange, but receipt of part of the right while the remainder remains owed; the Encyclopedia notes this is typically made by prior agreement. The Hanafis treat release for a consideration as a settlement for money. ^{27 28}

The releasor may retract after the offer alone, or after the offer and the acceptance without refusal. The Hanafis and Hanbalis, and one Shafi'i view, hold that the releasor gains nothing by retracting, because what was his has dropped away and a dropped right does not return, much as if he had given a gift and it perished. The Malikis and the other Shafi'i view hold that retraction is effective, giving weight to the transfer aspect of release and the requirement of acceptance, since in transfers the offerer may retract before acceptance. Al-Nawawi preferred that retraction is not allowed, even if release is treated as a transfer. The Hanafis also hold that a release cannot be cancelled by mutual agreement, since it is a dropping, and what has dropped does not return. ²⁸

A release may be void from the start, where one of its pillars or conditions is missing, or it may be invalid because it is combined with a vitiating condition, a matter on which the jurists differ. It may also be void by implication, when it is included in a contract and the contract is void. The Hanafis and Shafi'is hold that where a release is part of a contract and the contract is void, the release is void too, provided the release was specific to the contract and built on it. A general release of all rights and claims is not voided, and nor is a specific release that is not built on the void contract; Ibn 'Abidin argued this. ^{28 29}

A release that meets its pillars and conditions discharges the debtor from what was released, by the wording, generally or specifically. The releasor then has no right to demand, and no claim based on that matter is heard, except for what arises later. The effect is limited to the time it is made; a claim based on forgetting or ignorance is not accepted. Some effects are specific to a school's rules: a pledge is redeemed by release, so the pledgor takes it back as he would had he paid, but release of a pledgee from the offender has no effect, since it is not valid, and it does not in the more sound Shafi'i view drop his right in the security. Release also has the effect of receipt in some rulings: if a seller is referred to a debtor of the buyer for the price, and the seller then releases the referred debtor before rescission, this is like receipt of the referred sum for the purpose of returning it on rescission, so the buyer may claim from the seller the amount that was released. ²⁹

The Hanafis exempt some matters from the subsequent effect that a release bars a later claim: a claim of a warranty of title in a sale made before the release, since the warranty arises later and follows from the sale; the emergence of a right of a minor he did not know of, after he came of age and his guardian released him generally and acknowledged that he had received the whole estate; a guardian's claim against a man for a debt owed to the deceased after acknowledging receipt of all that was owed; and a claim by an heir against a man for a debt owed to the deceased after the same acknowledgement. The reason is that the matter of the release was clouded in a way that excuses the releasor, and the last two cases are in substance a release of receipt, an acknowledgement of discharge. ³

The release discharges the matter only as regards judgment in this world. In the next world the Hanafis differ: one view says the claim is dropped judicially but not in conscience; another says it is dropped in conscience also. Ibn 'Abidin held that in a settlement on part of a debt the releasor is discharged from the rest judicially, not in conscience, so that if he later finds it he may take it. In a general release where the amount was unknown, he is discharged from all judicially, but in the hereafter only to the extent he believed was owed. The Malikis hold two views on the next-world effect of release with denial: that the releasor is discharged, since he forgave a wrongdoer's usurpation of a right which the owner released, as Ibn Taymiyya also held; and that the claim of God is not dropped by release from the claimant. The Shafi'is hold that a release of the unknown, which they do not validate, discharges in the next world because the releasor is content. ³

If a releasor, after a general release, admits to the released person that a debt is owed to him, the Hanafis and the Malikis, on the apparent view of al-Hattab, do not give effect to the admission, since the debt has dropped and a dropped debt does not return. Some Malikis, following al-Laqani, hold that the admission is effective, since it is a new acknowledgement. Ibn Nujaym exempts an admission to a wife of her dower after she had given it back to him, on the view of Abu al-Layth; and for a release of a thing, the admission is effective, since ownership is renewed. ³