Fatawa >Khums > chapter one > part one

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On What Should Khums be paid?

Foreword

Khums is payable on all kinds or private property, except few, and whether they are earned through the individual's effort and toil, or those that came his way without any effort. Of the first type is what man earns by hiring himself, or working in agriculture, trade, war, mining… etc. Of the second type is what man acquires by way of gift, will, and inheritance. Khums should be payable by the covenanted non-Muslim on land bought from a Muslim as an exceptional case in such transactions. It should also be levied on the property tainted with illicit gains for the purpose of purifying it and rendering it permissible to dispose of.

Since much of the details are dedicated to the Khums that is levied on gains, we are going to discuss these under two titles; the first will cover matters which are not related to what becomes left over and above man's yearly expenses, such as spoils, metal, treasure troves, what is acquired through diving, money tainted with illicit gains, and land bought by a covenanted non-Muslim from a Muslim. These kinds of property are unique, in that you do not need to wait for one year, as in the case of ordinary gains, to pay Khums on it. It is obligatory hasten to do so as soon as it has been acquired, even if it is not surplus to one's provisions.

In the second, we will discuss ordinary gains, which come about by way of earning a living, and which may yield surplus to one's yearly provisions. The aim is to distinguish this type of Khums which is levied on a particular date after the lapse of one year and the other kind of gains whose Khums should be paid promptly.

1. Khums levied on Spoils

i. Spoils of War

These consist of war booty acquired in Muslim's wars against the infidels, that which had been acquired by force. However, such war should have been waged with permission of the Imam (a.s.) when present, or the legitimate authority (asulta ash shari'iyah) at the time of the occultation. Muslims have agreed on the obligation of paying khums on such gains. This has been substantiated by irrefutable evidence from both the Holy Book and the sunnah.

This situation though no longer exists in this day and age. The reason being that the Islamic leadership of bygone days did not bear the expenditure of the army; the fighters themselves did. That is why distribution of war booty used to be among them in recognition of their effort. Nowadays, the Islamic leadership – the stated – caters for the cost of war and pays the soldiers their wages. Hence the opinion about the state having right of disposal over war booty. That is, the state falls outside the remit of the evidence of confining the distribution of war spoils among the fighters, after modern soldiers have become hired persons.

72. Apparently, the definition of "booty", on which shari'i consequences are predicated, is the property acquired during acts of war. That which falls in the hands of Muslims of the property of a belligerent unbeliever – if he is allowed to acquire it – should be counted among gains. It can also be argued that Muslims have no right in the property of the belligerent unbeliever, for the mere reason that such a matter could be referred to Marji' (al hakimush shari'i) in his capacity as the overall guardian of Muslims. It could therefore be concluded, as a matter of obligatory precaution, that it is not permissible to take away the property of a belligerent unbeliever.

ii. Minerals

anything that is excavated from the earth, provided that it is of value.

The obligation to pay Khums on minerals is general, in the sense that it should be paid whether the minerals were excavated through mining (or drilling) or were found at the surface of the earth. For example, Khums should be levied on gold, silver, copper, lead, iron ore, gems, mercury, sulphur, oil, salt etc.

Apparently, minerals are among boote. Thus, the permission of the guardian of Muslims (Marji') has to be obtained to develop them. This applies to all kinds of land, including conquered ones.

73. should anyone develop any land that does not belong to them without the permission of the owner, it is widely the view among jurists) that the minerals it contains are the property of the owner. However, this may be the case with regard to minerals found on the surface, or at short depth of it; should the minerals be at a greater depth inside the earth, they are not considered as part of it. Accordingly, and as a matter of ihtiyat, the developer and the owner should reach an agreement. Failing that both the parties must have recourse to the Marji' who is the guardian of the minerals.

74. The threshold for paying Khums on minerals is twenty dinars, i.e. approximately ten Ottoman gold Lira. Apparently, determining the threshold is done by excluding the yearly provisions of the proprietor. For example, should the total amount of the minerals excavated be twenty five dinars and the yearly provisions ten, no Khums should be levied because the reminder is below the threshold.

75. The minerals may be extracted at intervals. Should the established practice (urf) consider the work as semi continuous, it suffices that the entire production be considered one for the sake of calculating the threshold. Conversely, should the work involve long periods of recess, for this reason or the other – including the fact that the pace of work is dictated by its nature, no Khums is payable on every independent batch, unless it rises above the threshold.

76. Should there be partners developing the site, the share of each one of them has to reach the threshold for Khums to be levied. In other words, even if the total of all their shared reached the benchmark, no Khums should be paid.

77. When in doubt about whether or not the threshold has been reached, one has, as a matter of voluntary precaution, and where possible, to make sure by way of checking. If it is not possible to ascertain the fact, or if one is still in doubt even after checking, no Khums should be payable.

iii. Treasure Trove

Treasure trove is money, gold, jewels, or other valuable objects, such as old relics, found hidden in the ground, cave, under a wall, a tree, etc. and claimed by no one.

78. If no one comes forward to lay claim to the treasure trove, and its ownership cannot be traced to a Muslim, or an unbeliever who considers property sacrosanct, the person who found it can own it. That is, without regard to the land it is found in, i.e. be it war territory of Muslim land, whether it bore the marks of Islam or the age of jahiliyah (ignorance), whether the land the treasure trove was found in was built or derelict, and whether the time span was close to the founder's time or much older.

Should the founder, after checking, know the owner of the treasure, in person or through his inheritors, he should give it back to them. Otherwise, the one who found it will be deemed as owner anonymous (majhoulil malik), in which case he should hand it over to the Marji'. If the owner belongs to very old generation with no known heir, it should be treated in the light of the rules governing treasure trove.

79. Irrespective of the nature of the land which contained the treasure trove, once it is established that the owner is anonymous, the person who found it is not required to investigate, especially if the treasure is very old and untouched.

(Generally speaking) how the present owner of the land came to own it is immaterial to him being the owner of the treasure trove. That said, if it was owned by other people before him, and he came to know that the treasure might belong to someone who considers property sacrosanct, among the previous owner or their heirs, it is obligatory on him to ask them whether the treasure belongs to them. The same applies if the present owner of the land thinks that there is a possibility that the treasure may belong to the penultimate owner or his heirs. Should he conclude that it is theirs, he must hand it over to them, otherwise, the same ruling in the previous issue should apply.

80. There is not difference in the ruling in the case of the land being tenanted or that which the person who found the treasure trove in it is being exploited without the owners permission, although the culprit is deemed sinful on that count.

At any rate, it is recommended, on the basis of voluntary precaution, that the person who found the treasure trove should agree with the landlord, even in the case of tenancy; failure to reach such agreement should open the way to arbitration by the Marji'.

81. Khums becomes due on the treasure trove when it, or its value if it is not gold or silver, reaches the threshold of Zakat on gold and silver which is twenty dinars for gold and two hundred dirhams for silver.

The criterion of the threshold of minerals when brought out in batches/intervals should be observed here. That is, if the process of retrieving the treasurer trove is done in phases, but with short intervals, Khums is payable; if not, i.e. with long intervals, no Khums on the total should be due, unless each batch reaches the threshold.

Also, any expenditure on excavating the treasure trove must be deducted from the total value. Should the remainder amount to the threshold or more, Khums should be paid.

82. As in the case of minerals, should there be a group of people taking part in the uncovering and extracting of the treasure trove, their respective shares, not the total, should reach the threshold for it to be taxed. Similarly, when in doubt about whether or not the share has reached the threshold, checking, where possible, is recommended as a matter of Ihtiyat.

83. Muslims living abroad should respect the law of land they are in, including those legislations designed to preserve national heritage. However, should they come across a treasure trove, they may keep it.

iv. What Is Acquired Through Diving?

It is all that which is brought up by going under the surface of the water, be it through manpower or machine power, such as pearls and corals, and the like of sea plants and animals, barring fish and marine mammals. What is gathered from the surface of water is not included in this definition; it is considered part of gains (makassib).

Apparently, great rivers are treated in the same way as seas insofar as what is extracted form their depths is concerned.

84. Apparently, the threshold of what is acquired through diving is one dinar, or about one half of on Ottoman gold Lira. Should there be a group of people carrying out the work by way of partnership, the threshold must be reached by each and every one of them separately for the Khums to become due. Whether the acquisition was of the same kind or different kinds is immaterial.

85. Property retrieved from sunken vessels belongs to the one who brought it up; that is, if the original owner did not bother to salvage it in the first place or salvaging it proved very difficult. However, the ruling regarding diving does not cover this matter, on the basis of ihtiyat; rather it is covered by the rules of gains. The same applies to what is thrown by the sea on the coast; its ownership belongs to the one who finds/retrieves it.

86. Should amber be extracted from the bottom of the sea, the rules of diving should apply, i.e. Khums has to be deducted accordingly. Should it be gathered from the surface of water or the coastline, no Khums, under the banner of diving, must be due. However, the rules governing gains should apply.

v. Property Tainted with Illicit Gains.

It is the money earned by licit means getting mixed up with illicit gains so much so that is becomes very difficult to quantify the latter neither in kind nor by an evaluation.

Since the mukallaf becomes perplexed as how bet to get rid of the illicit money and whereby extricate himself from the responsibility, the Shari'a made it compulsory that the proprietor pays Khums on all the property in a way to purify the rest and render it halal. This should be done as soon as the culprit repents and shows remorse, i.e. without the need to wait one full year.

"Illicit property" is every gain acquired through means, which Islam has outlawed, or it was acquired through usurpation or theft. Of the first type is money taken by way of unlawful singing, adultery, sodomy, and their likes of sexual licentiousness, sculpture, etc. Or it was a price for something which is haraam, such as money received for selling a dead carcass, pig, and alcohol. Or it could be gains of usury, gambling, and their likes.

Of the second type is any property taken by force from its owner, be it without his agreement, theft, or by deceit. We will discuss the sources of illicit gains and the rules governing them under the theme of "transactions" later, Inshallah.

Should the proprietor or such tainted property repent, it is obligatory on him to hasten to get rid of it by either returning it to its owner or reach an agreement with him as to the best way out.

Once returned, this illicit money could be available in kind, it could also have been lost or turned into something else, that remains a debt. In both the cases, the original owner might be known or unknown; if he is known, he could be known in person or among a group of people.

The same goes for the property; it could be identified in terms of its value and kind. Thus, each of these matters calls for scrutiny to reach the right ruling, which we will tackle as follows.

1. The property whose owner is known

It is of two kinds:

i. When the property is in hand.

a. When the owner is known in person, and so is the property, it is obligatory to return it to him intact.

b. When the owner is known, but the property cannot be positively identified, the two parties should agree a way to retrieve the property through an offer/acceptance. Resorting to choosing by lot could be another vehicle of resolving the impasse, regardless whether the items of property were of the same or different values.

c. The owner might be known, so might be the quantity, yet the type of the property is not. The ruling is the same as that of the preceding case.

d. The owner might be known, so might be the kind of property, yet the quantity in not. Both the parties resort to some sort of agreement. Should there be an idea any quantity, without the one in doubt, it should be returned. If the owner does not accept this, they may resort to the Marji' settle the issue.

e. The owner may be known as, say, one of three people. The person in whose possession is the property should inform them provided that both the quantity and kind are known. Should anyone of them come forward as the rightful owner, and the others agree with the claimant, the property should be handed back to him. Should more than one lay claim to the property, they should agree among themselves as to how to repossess it. If not, they can refer the matter to the Marji' to resolve it.

All three may fail to recognize the property; they did not lay claim to it, and disagreed among themselves. It is apparent that resolving the matter should be by way of lot-casting. As a matter of ihtiyat, the Marji' or his agent must oversee the process of lot-casting.

Should the quantity of property not be known, the ruling in (a) above should be applied. If the kind of property is not known, the rulings in (b and c) above should be applied.

ii. The Real Asset Has Been Lost or Damage.

The culprit here should stand to pay damages. There are few issues to discuss:

a. If all was known – the owner, the quantity, and type or property – same should be returned to the rightful owner. If it is an identifiable object, an identical item should be returned. The value thereof should be reimbursed, as in the case of grains, oil, etc.

b. Should the original owner be, say, one of three people, yet he does not know who among them is the rightful owner, he should, as a matter of obligatory precaution reach and agreement with all of them. Otherwise, he must pick one of them by way of lot-casting.

Being/not being able to determine the quantity and the kind of property should be resolved by referring to the preceding cases, i.e. in (a and b).

2. Property whose owner is anonymous

Should the usurper not be able to know the proprietor of the capital asset, i.e. neither in person nor among a small number of people, the matter could have different turns.

i. Knowing the quantity and the type of property, and so long as it is still in his possession, he should give it away in charity. If it is not known its equivalent should be given away in charity. The same ruling applies in the case of loss of the property. As a matter of obligatory precaution, giving it away in charity must be done with the permission of the Marji'.

ii. The capital asset could still exist, yet is got mixed up with another licit property. Neither its owner nor its quantity is known. This should be treated by paying Khums on the entire property it was mixed up with.

87. Some may get the impression that if illicit money was among people's property, such as Zakat, khums, and waqf, it falls within the definition of "property tainted with ill-gotten gain", and therefore can be made good by way of paying Khums on it. This, (I am afraid), is a false perception; the reason being that such property is entrusted to the Marji' and thus its owner is known. It should therefore follow that is cannot be rendered halal by paying Khums on it.

Accordingly, it has to be referred to the Marji' in the ways already discussed, insofar as its quantity and kind are known/not known, or both quantity and kind are varying.

88. If before paying Khums , the usurper that the ill-gotten gains that are mixed up with licit ones more that the Khums, it is not sufficient to set aside Khums alone. He should give away in charity the surplus amount. However, he is not required to pay anything on any suspected amount.

Should he know that the illicit money falls short of the amount of Khums, it is sufficient that he gives away by way of sadaqah the amount he knows is haraam to offset the surplus suspected amount. As a matter of obligatory precaution, giving in sadaqah should be with the consent of the Marji' in both the cases.

If after payment of Khums, the proprietor finds out about the exact amount of illicit money, he should give away in charity the excess amount or hand it over to the Marji', should it be over and above the amount of Khums. Should it be below that amount, it is not permissible for him to claim back the overpayment, this is so, even if his knowledge about the situation is not absolute.

89. The mukallaf could have been selling in his shop haraam products, such as alcoholic drinks, pork, and dead carcasses, as well as halal ones. He may have sold the haraam products without valid/shari'I justification. One he repented, the cost price of such haraam products, even if it is paid for with good money, is considered illicit. The same applies for the profits made on selling them.

The way to go about treating this property is according to what has already been discussed. Any way of the following would do: (a) returning it to its owner, if it is known. (b) giving away in charity, if the owner is unknown. (c) paying Khums on it, if it – the haraam­ property – is mixed with a halal one, should neither the quantity nor the proprietor be known.

However, in case he returned the property to the person who sold it to him and in the process got what he had paid for with good money back from him, he does not need to worry. That said, he should still be deemed sinner in selling alcoholic drinks, pork and dead carcasses to those customers who do not consider them halal. The reason being that he must have destroyed the alcoholic drinks, returned the pork and dead carcasses to the non-Muslim source where he bought them, or sold them to non-Muslims who do not have any qualms about consuming them.

90. The mukallaf away be aware that a certain amount of ill-gotten money is mixed up with the licit property on whose total Khums has become due, owing to the fact one year has elapsed on the property while in his possession. The way to set about treating this illicit gain is by paying tax on it twice. For example, suppose the total mixed property is seventy five, the halal portion of it is fifty, and the remainder is harram money which is between les than one fifth of the grand total or slightly above it. Here Khums should be paid on the fifty to start with, i.e. 20% of the fifty would yield ten; then one fifth of the sixty five, i.e. thirteen. Thus, fifty two would remain in his hand, and so on.

91. Should the mukallaf have disposed of the halal property tainted with illicit gains, he must be liable for paying Khums on it. As a matter of ihtiyat the amount of Khums be paid to the eligible people b way qadha in such a manner that it could be Khums or sadaqah.

92. Should the original proprietor (of the illicit money) be known after the Khums had been paid, the taxpayer must not stand to compensate him. However, there is no harm in practicing ihtiyat by returning his property.