Khiyana (breach of trust)

Khiyana, also khawn, linguistically is that a person is entrusted and does not give faithful counsel; its opposite is amana, and the jurists' usage of the word does not depart from the linguistic sense. ¹

Among related terms is ghishsh, linguistically the opposite of sincere counsel, technically a deception touching the sold item itself like curling hair or pounding cloth; khiyana is broader, being deception in the item's essence, in its description as by naming false qualities, or in an outside matter as by quoting a false price. ¹ Nifaq is entering Islam one way and leaving it another; khiyana applies to pacts and trusts while nifaq applies to religion. ¹ The scholars distinguish the betrayer, the thief and the usurper: the betrayer betrays what was placed in his trust, the thief takes secretly from a place he was barred from reaching — and it is sometimes said every thief is a betrayer but not the reverse — and the usurper takes openly relying on his strength. ¹

Betraying a trust is forbidden, by Surah al-Anfal ayah 27 and by the hadith "the signs of the hypocrite are three: when he speaks he lies, when he promises he breaks his word, when he is entrusted he betrays". ² Al-Dhahabi and Ibn Hajar al-Haytami count betrayal among the grave sins; it is ugly in everything but some forms are graver and uglier than others, betraying a fals not being like betraying one's family. ²

Betrayal in the trust-based sales

The trust-based sales rest on confidence and assurance between seller and buyer, so the seller must be truthful in reporting what he bought for and what it cost him when he sells by the "cost" formula, since the buyer trusts the seller's report of the first price without proof or oath. ² Such sales must be guarded from betrayal, its causes and suspicion, avoiding all of that being obligatory as far as possible, by Surah al-Anfal ayah 27 and the hadith "whoever deceives us is not of us"; guarding against it and its suspicion is achieved by disclosing what must be disclosed. ² The ruling when betrayal appears in the trust-based sales is disputed among the jurists, detailed under bay' al-amana. ²

The musaqah worker's betrayal

The worker is trusted and his word is accepted on the loss he claims and on the betrayal claimed against him. ² If his betrayal is proved by confession, evidence or a returned oath, an overseer is attached to him until the work is done without removing his hand, since the work is his duty and can be collected this way, and the overseer's wage is on the worker. ² If the betrayal is not proved but the owner suspects him, an overseer is attached whose wage is then on the owner — this at the Shafiis and Hanbalis. ³ The Hanafis count the worker's being a thief feared for the fronds and fruit before ripening among the grounds excusing annulment of the musaqah, since it burdens the landowner with a harm he did not undertake. ³ The Malikis hold the musaqah a binding contract which neither party may annul without the other absent mutual consent, so a thieving or unjust worker does not dissolve it nor is another set in his place; he is guarded, his misconduct not barring collection of the intended benefits. ³

Taking a found thing intending betrayal

One who takes a found thing intending betrayal and seizure is liable as a usurper and is not cleared of liability until he delivers it to its owner. ³ Whether the finder is cleared by handing it to the ruler or returning it to the spot he took it from is disputed, detailed under luqata. ³

Craftsmen's betrayal

The market overseer watches the craftsmen's affairs as to honesty and betrayal: he confirms the trustworthy among them, removes and publicises the one whose betrayal appears so that those who do not know him are not deceived. ³ Since oversight of all market-goers exceeds his capacity, he may appoint for every craft a guild head from its righteous members, expert in their craft, acquainted with their frauds and deceptions, renowned for trustworthiness, supervising their affairs and reporting to him their news, what is brought to their market and the prices it settles at. ³ The saying "seek help for every craft from its righteous people" is related; al-Shizari cites it in Nihayat al-Rutba without naming a transmitter, and the encyclopedia did not find it in the hadith sources. ³

Cutting the betrayer's hand

The hand of a male or female betrayer is not cut, by Jabir's hadith "no cutting for a betrayer, a snatcher or an embezzler", and Ibn al-Humam reports consensus on this sentence. ⁴ For the obligation is cutting the thief, and the betrayer is no thief for a deficiency of custody: the property was in the betrayer's hands and his custody is not the owner's unmixed custody, his custody being one authorised for the taking by entry. ⁴

The jurists dispute cutting the denier of a borrowed item: the majority hold there is no cutting on him, by the hadith of no cutting and because the duty is cutting the thief while the denier is no thief but a betrayer, like the denier of a deposit. ⁴ Ahmad in a transmission and Ishaq ibn Rahawayh hold the denier of a borrowed item is cut, for Aisha's report in the two Sahihs that a woman used to borrow goods and deny them and he ordered her hand cut. ⁴ The majority say of Aisha's report that the cutting was for a theft she committed after already being famed for denying loans, so Aisha described her by her famous trait: the meaning is a woman whose known quality was denying loans who then stole and was ordered cut. ⁴ Ibn Qudama says that for the denier of a deposit and other trusts he knows no one who obliges cutting. ⁵

Betrayal of treaty partners

The Shafiis and Hanbalis hold that if the imam senses betrayal by treaty partners through signs pointing to it, not mere fancy, their pact is not dissolved but he may renounce it to them under Surah al-Anfal ayah 58 — that is, he informs them of the pact's abrogation until they stand equal in knowledge — obligatorily before raiding or fighting them. ⁵ Whenever the imam annuls the truce while any of them is in Muslim territory, they must be returned to their place of safety since they entered under aman and must be returned safe; any claim against them is collected from them like others. ⁵

The Malikis hold that if the imam senses any suspicion of betrayal by the people of war before the term, by the appearance of its signs, he must renounce the pact between him and them and desist, lest persisting lead him to destruction; the certain pact lapses by a suspicion whose marks appear, out of necessity. The imam must warn them they have no pact; if their betrayal is confirmed he renounces without warning. ⁵

The Hanafis let the imam annul the peace after making it with the people of war for a term, renouncing it whenever he sees annulment more beneficial even without sensing betrayal, since he renounced the armistice that was between him and the people of Makka, and since when the benefit changes renouncing is jihad while keeping the pact is leaving jihad in form and meaning; renouncing is needed to guard against perfidy which is forbidden by the general texts. ⁵ Ibn al-Humam reports consensus that renouncing the armistice is not conditioned on fear arising, since the truce was only valid for being beneficial and when the state changed it reverted to prohibition. ⁵ If they begin with betrayal the imam fights them without renouncing, when the breach was by their agreement, for they have become pact-breakers so there is no need to annul. ⁶

Betrayal by the people of the dhimma

The Shafiis and Hanbalis state that if betrayal is feared from the people of the dhimma the pact is not renounced to them; the difference between them and treaty partners is that the dhimma contract is due to them — if they seek it, contracting is obligatory — so it is not dissolved on fear of betrayal, while the benefit in the truce contract belongs to the Muslims so its contracting and annulling are for the imam's view. ⁶ And the people of the dhimma are in the imam's grip under his authority, so betrayal appearing from them can be countered, unlike treaty partners outside his grip whose betrayal cannot be countered and so may be annulled on fear. ⁶

A Muslim betraying the people of war

Whoever enters enemy land under aman must not betray them in their property, since they gave him the aman conditioned on his leaving their betrayal and securing them from himself — known in meaning though not expressed in wording — and so one of them coming to us under aman who betrayed us would be a pact-breaker. ⁶ Betraying them is not lawful for him since it is perfidy and perfidy is not permissible; and he said "Muslims are bound by their conditions". ⁶

The betrayer going out with the army

The betrayer is barred from going out with the army: the one who spies for the unbelievers, informing them of the Muslims' weak points by letter and correspondence. ⁶

Betrayal is mentioned across many legal chapters: sale, partnership, mudaraba, deposit, loan, the found thing, agency, wills, custody, testimony and the conduct of war. ⁶