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IBRA' (Conditions For a Valid Ibra' (The Subject Matter of…
IBRA'
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Conditional Ibra'
Not permissible even though the present condition is known because ibra' contains elements of transferring ownership. Accoring to Hanafi and the Shafii jurists and narrated from Ahmad, present conditions are only allowed for absolute absolution of rights and not transferring of ownership (ibn Muflih, 2003)
Permissible to stipulate conditions if it is a common practice and not permissible if otherwise. This is the stance of the majority of Hanafi jurists.
Permitted absolutely. This is the stance of the majority of Maliki jurists and narrated from Ahmad on the basis that ibra' means a waiver of rights.
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Definition of Ibra
Mutual estrangement and removal, as in 'I was absolved of debt when it was removed from me'. it can also be defined as to release, eliminate or purify and to remove.
Technically Ibra' means an act of absolving or dropping one's financial rights(to collect payment) from a person who has the obligation to repay the amount borrowed from him.
Revocation of Ibra'
The Hanafi and the Hanbali jurists an one opinion of the Shafii jurists advocate that the grantor cannot retract his ibra'. This is because whatever rights he has had ceased with ibra'. Something that has ceased to exist does not return. The debt does not remain his, it is as if he has given it away and it is destroyed.
The Maliki and Shafii jurists hoever hold that the creditor can retract. This is because they emphasise the dominance of ownership in ibra' and the condition of acceptance of the offer. There is, thus the possibility of retraction of the offer as long as it has not been accepted by the other party.
Legality of Ibra'
Ibra' is recommended(mandub). Al Sharbini (1992) of the Shafi'i school advocates that ibra' is encouraged(matlub). as such, it rules are quite flexible compared to the uarantee (damain) since it is generousity and a good deed to waive a debt from the debtor even if he has no difficulty in settling debt.
Legal Effects of Ibra'
ibra' or waiver from a debt which causes the debtor's liability for the debt to be absolved is based on the wording of the offer. Thus, when the liability is withdrawn, the creditor has no right to demand paymnt and any claims related to the ibra' will not be entertained.
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