Q: With regards to these two fatwas, I have the following questions:
https://muftionline.co.za/node/36923
https://muftionline.co.za/node/36922
My questions is as follows:
وَفِي الشَّرِيعَةِ: الرِّبَا: هُوَ الْفَضْلُ الْخَالِي عَنْ الْعِوَضِ الْمَشْرُوطِ فِي الْبَيْعِ؛ المبسوط للسرخسي
How will you explain this definition of riba in relation to the mas’alah in question?
I have three objections:
1. The extra amount is not necessarily خاليًا عن العوض (free of consideration). There is a service or benefit being provided in return for the amount charged. So how can this extra amount be described as a “surplus without consideration”?
2. The extra amount is not مشروطًا في العقد (stipulated in the contract). The definition specifically refers to an excess that is stipulated in the sale. If this extra amount was not stipulated as a condition in the original contract, then how does it fall under this definition of riba?
3. More importantly, how would it even be possible to pay the bank transaction fees in the first place? According to the qiyās presented in the mas’alah, paying the bank a fee gives them an additional benefit. If every additional benefit received by the lender is treated as riba on this basis, then what would be the basis for allowing bank transaction fees?
A: From the objections you raised, it seems that you have not understood the principle of riba and how it applies.
When the loan was given by person A to person B, then it was supposed to be an interest-free loan where person A does not derive any benefit through the loan. However, in these two cases, person A is deriving some conditional benefit from the loan by telling him, from the very beginning or at any time before he receives the loan amount, that I am giving you the loan, on condition that you give me something extra, over and above the loan amount which I am giving you i.e. paying my bank charges and paying my petrol (the benefit of which is reaped completely by person A).
Hence, person B is paying extra for something (petrol or bank charges of person A) which he is not receiving. Rather, the full benefit is going to person A who gave the loan.
This should not be viewed from the angle that person B is receiving some benefit that person A brought the money to him, or person A's bank transferred the money into his bank account, for this is not a benefit which Shariah recognizes for person B. Rather, this is a benefit that Shariah recognizes for person A, because he is getting back the loan in full, and reward from Allah Ta'ala for giving the loan. So when Person A uses his petrol, it is for his own benefit, and when Person A's bank pays person B, it is also for his (person A's) own benefit.
Therefore, it is not permissible for person A to put this condition in the loan transaction.
As for the third objection you raised i.e. bank charges, then this objection is not correct. The reason is that a person pays the bank fees for valid services they provide him with (e.g. payments they make to people on his behalf from his own money in his account), not for taking loans from the bank. If he takes loans and then pays the bank extra on the loan, then this is riba which is declared haraam in Shariah.
And Allah Ta'ala (الله تعالى) knows best.
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