Iltizam (binding obligation in fiqh)

Iltizam in the lexical sense means something becoming fixed and lasting; "the debt became due" is one of its uses. In the technical sense it is a person binding himself to what was not binding on him before. ² A contract is the binding of the parties by the joining of offer and acceptance. ² Related words are ahd (covenant), tasarruf (disposal), ilzam (imposition), luzum (being binding), haqq (right) and wa'd (promise). ²³

The cause of iltizam is the voluntary act by which a person creates a right over himself: contracts, covenants, oaths, conditions and vows. ³¹¹ Some modern writers add harmful acts, beneficial acts that enrich another without cause, and the Law itself; the classical jurists treat these as imposition rather than binding. ⁴⁵

Binding oneself to the rules of Islam is obligatory for every Muslim; voluntary acts are permitted in principle. ⁵⁶ A binding may be obligatory (such as relief for one in need), recommended (for gratuitous acts), forbidden (for aid to sin) or disliked (for aid to what is disliked). ⁶

For the Hanafis the pillar is the formula alone; others count four: the formula, the one who binds, the party bound to, and the object. ⁶

• The formula: offer and acceptance in contracts that depend on two wills, and one-sided declaration for vows, freeing a slave and oaths. ⁶¹²
• The binder: needs capacity to exchange, or capacity to give in gratuitous acts. ¹²
• The party bound to: may be the unborn, or a person not yet known; a gift to an unborn child and the commander's reward for killing an enemy are examples. ¹²¹³
• The object: in exchanges it must be free of gharar, and must be capable of the act. Contracts with gharar differ: al-Shafi'i forbids uncertainty generally; Malik separates exchanges, where it is avoided, from gifts, where it is allowed. ¹³¹⁴

• Ownership passes to the party bound to in contracts that carry it. ¹⁵
• A right of retention: the seller keeps the goods until paid; the pledgee keeps the pledge. ¹⁵¹⁶
• Delivery and return. ¹⁶
• A right of disposal, which depends on the kind of ownership; the schools differ on disposing before possession. The Hanafis and Shafi'is forbid it for goods; the Malikis and the Hanbalis allow it except for food. ¹⁶¹⁷
• A restraint on disposal, as with a pledge. ¹⁷
• Protection of lives and property: a Muslim's blood and property are sacred; the trustee must keep a deposit, and one who finds a lost child must take it up. ¹⁷¹⁸
• Liability for loss, from contract, possession, damage or failure to guard. ¹⁸

The duty to fulfil is grounded in the verse "fulfil your undertakings" and the hadith "Muslims keep their conditions". It covers sales, leases, covenants, vows lawfully made and duties to people. ⁷ Debts and deposits must be paid, and one who delays unjustly may be compelled, while the poor debtor is given time. ⁷¹⁹ A promise is recommended to keep and is not binding in the majority view, unless the promisee acted on it. ⁸²⁰ Gratuitous or revocable arrangements, such as agency, partnership and profit-sharing, may be ended by either side. ²⁰ A binding to sin is void: a vow to disobey God, an oath to do a forbidden thing, and a conditional promise of reward for a crime. Void conditions are not binding. ²⁰²¹²²

• Options: the Hanafis recognise the option of stipulation, of specification, of inspection and of defect. These prevent the rule from starting, completing or becoming binding. ²²²³
• Conditions: a conditional clause suspends the binding until the condition is fulfilled. A conditional clause that is customary or useful is binding; a corrupt one has differing effects. ²³²⁴
• Terms: a term fixes the duration or the start of the performance. Contracts that cannot take a term, such as exchange of gold and silver and marriage, are void with one by most jurists. ²⁴²⁵

Documentation is by writing and witnesses, as in the verse on debts, and by pledge and surety. A pledge is recommended rather than required. ²⁵²⁶ A debt may pass to another person by transfer (hawala). ²⁶ If the one bound denies, the claimant must prove his right; the oath falls on the denier, following the hadith. ²⁶⁹

An obligation ends by performance; by release of the creditor; by rescission or dismissal in revocable contracts; by the return of gifts before possession; by set-off; by the loss of capacity in revocable contracts; by bankruptcy or terminal illness in gifts; and by the loss of the goods before delivery. ⁹¹⁰