Types of misappropriations

Defalcation the opposite of safekeeping is of three types: Breach of trust with Allah, with the Holy Prophet (s.a.w.s.) and with people.

1. The trust of Allah

"Surely We offered the trust to the heavens and the earth and the mountains, but they refused to be unfaithful to it and feared from it, and man has turned unfaithful to it; surely he is unjust, ignorant."
(Surah Ahzaab 33:72)

What is meant by Divine trust? The scholars have a variety of opinions in this regard. Some opine that it denotes the grace of intellect given by Allah (a.j.). The safeguarding of this trust (intellect) means that man should employ it to recognise and obey his Creator. According to other scholars this trust consists of the laws of Islam that Allah has sent through His Prophet (s.a.w.s.). These laws are a Divine trust. To guard these laws means to obey them faithfully. It is obvious that the heaven, the earth and the mountains did not possess the ability to protect these trusts and hence they refrained from accepting them. Man was competent to obey the command of his creator and therefore he accepted the trust. But he allows his emotions to subvert his intellect and permits his desires to override reason. He therefore ignores the laws he had agreed to obey oblivious of divine retribution. This is breach of trust with Allah (a.j.).

The blessings of intellect and trustworthiness

Intellect or the faculty of reasoning is one of the greatest trusts that Allah has bestowed upon man and this trust demands that man continually honours it. We must not say or do anything that is against reason. If we allow our desire to conquer reason we would have committed a breach of trust with Allah (a.j.).

As regards the safekeeping of trust with reference to the rules of Shariat,
Imam Muhammad Baqir (a.s.) says:
"Misappropriating the trust of Allah and His Prophet (s.a.w.s.) is their disobedience. As far as the breach of trust is concerned, every person is the trustee of the laws revealed by Allah."
(Tafseer Safi)

It is clear from this tradition that the Divine laws promulgated for men are Allah's trust. The safekeeping of these trusts means the acceptance of these laws and implicit obedience to them. Every individual is expected to study these rules of Shariat and not to remain ignorant of these. Every individual has to make a point to learn and understand the obligations and be fully conversant with all the laws governing every aspect of his or her life. After learning these laws the individual is further obliged to accept them and follow them in all sincerity.

It is said that when it was the time for prayers, Amirul Momineen Ali (a.s.) became fearful and restless and his face became pale. People were dazed to see him thus, and asked him the reason for it. He replied,
"It is the time for prayers! It is the time of delivering the trust that Allah had offered to the heavens, the earth and the mountains, which they had refused. This is what I fear!"

However, this is not restricted to prayers. All the laws of Shariat are the trust of Allah and prayers occupy a lofty position among them.

Propagating the laws of religion

It is pathetic that most of the people of our time are committing breach of Divine trust. People are so engrossed in the materialistic world that they have no time to learn the basic laws of religion, or to act upon them. Day by day religion is given less and less importance although more than before, the need of the day is that people should learn about religion and propagate it to others. We must ourselves act upon the laws of Shariat faithfully and also exhort others to do the same.

2. Trust of the Holy Prophet (s.a.w.s.)

Both Shias as well as Sunnis agree that before his passing away the Holy Prophet (s.a.w.s.) had said,
"I leave among you two weighty things, the Book of Allah and my Progeny."

The Prophet's words after this, according to history are,
"On the Day of Qiyamat I will question you concerning them (as to how you have safeguarded them)"

According to Tafseer Majmaul Bayan: The Quran and the Progeny have been referred to as "two weighty things" because to follow them is a very difficult task indeed. A true Muslim is one who is able to carry the weight of this responsibility. A Muslim must obey the Quranic orders and follow the Ahlul Bayt (a.s.). Alas! The followers of Muhammad (s.a.w.s.) did not safeguard the important trusts.

"And the Apostle cried out: O my Lord! Surely my people have treated this Quran as a forsaken thing."
(Surah Furqan 25:30)

May Allah not include us in that majority of people about whom the Prophet (s.a.w.s.) shall complain to Allah.

Ahlul Bayt (a.s.) are the Trust of the Holy Prophet (s.a.w.s.)

Ahlul Bayt (a.s.) are themselves a trust that the Holy Prophet (s.a.w.s.) has left with us. To honour this trust is to love them (Ahlul Bayt), and believe in their truth with sincerity. We must obey their commands because their orders are the commands of Allah (a.j.) and the Holy Prophet (s.a.w.s.). They are the Hujjat (proof) of Allah. By sending them to us Allah has completed His proof, so we cannot say that there was no one to lead us after the death of the Holy Prophet (s.a.w.s.). The Ahlul Bayt (a.s.) are the link between Allah and us. We must also respect the Sadaat (the sayyeds) as they are from the Progeny of Ahlul Bayt (a.s.), and fulfill their needs, for in this way we would be safeguarding the trust of their ancestors. On one hand the Ahlul Bayt (a.s.) are the trustees of Divine laws from the time of the Prophet's death till the Day of Judgement, on the other hand they themselves (a.s.) are a valuable trust of the Prophet with us, like the Holy Quran. One of their rights upon us is that we consider their grief and sorrow as our own, rejoice in their happiness and joy and honour them by going for Ziarat to their holy shrines.

3. Trust of the people

Trust of the people is divided into two categories:
(1) Trust of Property and
(2) Trust of the Shariat.

The first one denotes any goods or property that a person keeps with someone for safe custody. This can be in various forms. Sometimes one keeps a valuable with another person solely for its safekeeping. Sometimes a thing is given for use but it must be returned after the use is over. This is also known as Ariya or Musta'ar. Another form of trust is when a particular thing is given on hire and its rent is collected, for example a house.

A loan is also a trust. Sometimes a valuable is pledged as the surety for some loan. If the loan taken against this surety is not repaid this item is sold to recover the dues. In the same way in transactions of Mudarabba (partnership) the property given out for trading is also a trust.

Trusts of Shariat

By trust of Shariat we mean property which is in possession of a person who is not its actual owner. This property may not have been handed over to him by the owner, but he may come to acquire it through circumstances. For example, a strong wind blows a cloth from a house to the neighbours, or someone's lost domestic animal may stray into somebody's house, or one may buy something and find later that the seller has given an extra item by mistake, or the client may pay the seller more than the prescribed rate, or one may find some money on the way, or one may come to acquire some stolen goods or those belonging to someone else. All these things are considered as trusts according to Shariat. It is wajib to restore them to the rightful owners, those who have them in their possession should not use such items. Another example of such a trust is a letter addressed to another person. It is wajib upon the person to send it to its rightful addressee. It is haraam to open or read a letter addressed to someone else.

Misappropriating other's property

If one is in possession of a person's property through circumstances, it is haraam to embezzle it. As we have already stated, misappropriation is a greater sin.

Misappropriation is a compound of three sins:
(1) Injustice
(2) Disregard of an obligatory act and
(3) Illegally using someone's property

Illegally using someone's property

It is a sort of injustice to use the property or a thing belonging to someone else without his permission. It is haraam even to borrow something without the permission of the owner. It is haraam to use the thing even for a moment. In fact, even displacing a thing without permission is haraam when there is no valid excuse.

A person using an article without the owner's permission has to give it back immediately or ask permission for its use. If any damage has occurred to the property the user has to make good the loss.

If one expects that the owner will permit the use of his property, then its use without permission is allowed. But the user will have to compensate in case there is any damage to the property.

A user is not accountable if a property is damaged despite his best toil to safeguard it, but he will be responsible if the damage is the result of his carelessness.

The 91st verse of Surah Tauba says,
"…there is no way (to blame) against the doers of good..."

According to this ayat the trustee who has done a good deed by guarding a property will not be liable for any loss or damage. The one who entrusts has no lawful recourse against the trustee.

Carelessness in guarding the trust

A trustee shall be made to pay for any loss or damage that occurs to the good entrusted to him, if he has not taken reasonable take of the goods or has kept them in an unsafe place. It is also not allowed to hand over the property in ones trust to someone else for safekeeping without the owner's permission. If the trust is transferred to another person and a loss occurs, then the first trustee shall be held responsible. It will amount to a sort of carelessness on his part. Even if he considers someone else to be a better trustee he cannot move the goods to him without the permission of the owner. In the same way the trustee cannot carry the trust with him when he goes on a journey. The owner's permission has to be sought in this case also. If the trustee intends to travel, he can keep the property in a safe place, or he can hand it over to another person only with the permission of the owner. However if there is a risk of loss or damage in his absence he must return the trust to its owner or his representatives. If the owner or his representatives are not available, he can surrender the trust property to the Mujtahid or the religious judge or he may avoid travel altogether. But if the journey is more important than the safe-keeping of this trust, and the owner nor representative nor a Mujtahid is available then he can, to ensure its security keep it with someone reliable. He may even carry it with himself on the journey in such circumstances.

If one is sure that he will not be able to take care of the trust, it is wajib for him to refuse to accept it. If such a person has already taken it, it is wajib for him to return it but if in spite of his inability to safeguard the trust property, the owner insists on handing it to him he is allowed to accept it. In this case the trustee cannot be held responsible, and the owner would bear the loss in the event of the goods being lost or damaged. Even if one is compelled to be a trustee against one wishes, it is better to take care of the goods entrusted, as a moral obligation.

It is apparent that this transaction (of one who entrusts and the trustee) is a legal transaction. Either party may terminate the agreement whenever he or she desires. That is, the owner may ask for his property whenever he likes. In the same way the trustee can return the goods in his trust to the owner whenever he wishes. However, it is wajib for the trustee to return the trust when the owner demands it and the one who entrusts cannot insist upon the trustee to continue to safeguard his goods when he (the trustee) wishes to relieve himself of the responsibility.

Delay in returning the trust

Under special circumstances it is permitted to appropriate the property of a Kafir, not living under the protection of Islamic government. But if such a person gives his property as a trust, it is not permitted to misappropriate this property. If the property to be entrusted is stolen or acquired by illegal means, it is wajib to accept it and restore it to its rightful owner.

As we have already mentioned, anything that is maintained as trust must be restored to the owner or his representative; like some responsible member of his family, if they are not available, the trust could be given in charge of a Mujtahid or his representative. If even these are not available the trust must be handed over to a reliable person. Especially when one perceives the approach of death one should immediately arrange to return the trusts. If none of the above persons are available then it is wajib upon the dying person to make a will and provide the address of the owner so that the property may be restored to him.

In the same way if the owner learns that the trustee is dead, it is wajib for him to go and collect the things that he had deposited as trust. If the heirs of the deceased do not recognise him he can describe the distinguishing features of the trust property and obtain it from them. Similarly if the owner dies, the trustee is under obligation to return the trust to the heirs of the deceased.

Transactions of hire, ariya (free loan), mortgage and partnership

As we have already mentioned, all the goods that are the basis of the above transactions constitute a trust. Whenever the owner demands the property, it has to be restored immediately. However, if a period has been agreed upon, the owner cannot demand his property before the end of the stipulated period. For example, the landlord cannot expel his tenant before the expiry of the agreement of tenancy. Similarly the pledged article cannot be taken back without the repayment of loan. The same is the case with a loaned article.

At the end of the stipulated period the trustees are obliged to return the property that had been in their possession even if the owner has not demanded it back, but if the owner extends the period the trustees can continue to retain the property.

However, 'Ariya' is a transaction where the owner is at liberty to demand back his property whenever he likes. For example, someone has borrowed a book for a week but the owner demands it the same day. The borrower, in this case, is obliged to return the book immediately. 'Ariya' is just like the keeping of some trust. The owner can ask for it whenever he wants. Even though he may have given it for sometime, he can demand it whenever he likes.

Search for the owner - Sadaqah on his behalf

The above discussion was regarding the property trusts. If someone is in possession of a Sharaii trust and the owner is not known, the finder of a property has to search for him for one whole year. He must publicise it from masjids etc. If the owner is still unlocated he must give all of the found property in charity on behalf of the owner.

The one who entrusts and the trustee should be adults

A transaction of trust is valid only when both the parties are sane and adult. So a child or an insane person cannot entrust their property nor can they act as trustees. However, if the guardian of a child or an insane person permits, the property can be held in trust. Whether the guardian permits or not, if the property of a minor or an insane person held in trust suffer some loss or damage, the trustee has to make good the loss. He has to return it to the guardian and not directly to the minor or insane person. If one finds a minor child or an insane person in possession of something and there is a risk of it being lost or damaged, he can take it from him and deliver it to his guardian.

These are thus some laws regarding trusts. For detailed laws one can refer to the books of jurisprudence. The important thing is to understand the significance of trusts and to avoid the pitfalls of a sin like misappropriation. We shall present one more ayat and a few traditions before closing this chapter.

Trustworthy people praised in the Quran

It is mentioned in Surah Aale Imraan:
"And among the followers of the Book there are some such that if you entrust one (of them) with a heap of wealth, he shall pay it back to you; and among them there are some such that if you entrust one (of them) with a dinaar he shall not pay it back to you except so long as you remain firm in demanding it; this is because they say: There is not upon us in the matter of the unlearned people any way (reproach); and they tell a lie against Allah while they know."
(Surah Aale Imraan 3:75)

This verse praises those Christians who do not embezzle when non-Christians entrust something to them and it denounces the Jews who consider it permissible to misappropriate the property of anyone who is not a Jew. They falsely claim that they have been given a licence by Allah to do so.

When the Holy Prophet (s.a.w.s.) recited this ayat, he said:
"The enemies of Allah lie! I have corrected every custom and belief of the age of Jahilya (ignorance) but (the matter of) trust is as it was. Whether the trust belongs to a righteous person or an evil one, it has to be returned."
(Tafseer Majmaul Bayan).

According to the ayat the embezzlers are like those Jews who defalcated and if a Muslim considers embezzlement to be permissible, he is included among the enemies of Allah.

Recovery of damages from a property in trust

The Quran and Hadith clearly state that under no circumstances is it allowed to pilfer a property held in trust. Shaykh Tusi in his book, Nihaya and other Mujtahids have also mentioned this fact.

Narrators of traditions have mentioned the following from Imam Ja'far as-Sadiq (a.s.):
"One person sends another with money to purchase a cloth. When the latter goes to the market he sees that he already has the same type of cloth at home. So can he come back and without saying anything give him the cloth that he was already having and retain the money?"

Imam (a.s.) continued, "He should not even think of doing this and make himself contaminated with such a sin." Then Imam (a.s.) recited the 72nd ayat of Surah Ahzaab:
"Surely We offered the trust to the heavens and the earth and the mountains, but they refused to be unfaithful to it and feared from it, and man has turned unfaithful to it; Surely he is unjust, ignorant."

Then the Imam (a.s.) further said:
"Even if this man has something better than what is available in the market, he must not give it to the buyer without informing him of the fact."
(Tafseer Safi)

This is because the actual transaction consisted of taking the person's money to the market and purchasing a cloth. Anything contrary to this is 'Khayanat'.

Sulayman Bin Khalid says,
I inquired from Imam Ja'far as-Sadiq (a.s.): "A man had borrowed some money from me. Not only did he not repay the loan but he also took an oath that he did not owe me anything. Later he kept some of his money with me as a trust. Can I recover my debt from this money?"

Imam (a.s.) replied, "Certainly that person has betrayed you but you should not betray trust. You must not commit the same sin."
(Nihaya of Shaykh Tusi)

As we have already mentioned, Shaykh Tusi and the other great Mujtahids have given a clear verdict in the light of the Quranic verses and clear ahadith, that Khayanat is totally prohibited.

But in the book Milhiqat Urwatul Wuthqa, the late Kazim Tabatabai says, "It is commonly believed by the Mujtahids that to recover one's legal dues from a property held in trust is permitted."

The fatwa of Late Kazim Tabatabai was also to this effect, but precaution dictates that one must refrain from such a course of action.

If a person is given money on the undertaking that he should give it to a poor Sadaat, he cannot keep this money, even if he himself happens to be a poor Sadaat, without informing the owner. But if it is certain that the owner will agree to his keeping it for himself then doing so is not breach of trust.

The burden of Khayanat and the Day of Judgement

The Messenger of Allah (s.a.w.s.) has said,
"Beware! One should not commit Khayanat of even one camel! Otherwise, he will be summoned on the Day of Qiyamat riding the same camel and bleating like a camel.

Beware! One should not commit Khayanat of even one horse! Otherwise he will be summoned on the Day of Qiyamat riding the same horse and neighing like a horse.

He will be calling me for help, 'O Muhammad! O Muhammad!' I will tell him that I had already warned him. Now I have no responsibility concerning him against Allah."
(Al Kafi)

Allamah Majlisi has recorded a tradition from the Holy Prophet (s.a.w.s.):
"You must return even a needle and thread. For Khayanat will cause untold degradation and exposure of defects on the Day of Qiyamat."

A man came to the Holy Prophet (s.a.w.s.) with a needle that he had taken without permission. He said, "I had taken this needle to sew a pack saddle for my camel."

The Holy Prophet (s.a.w.s.) told him,
"If this needle belongs to me I have forgiven you. However, if it belongs to the other Muslims you must pay for it so that it could be included in the public treasury for equal distribution."

"I was not aware that it was such a serious matter," the Arab remarked, "If it is so, I will not keep the needle with me." He handed over the needle to the Holy Prophet (s.a.w.s.) and went away.

The guilty shall be recognised by their marks

According to Allamah Majlisi, on the Day of Qiyamat the sinner shall carry the pilfered property on his shoulders. Every type of sinner will have specific distinguishing marks, by which everyone will know what sin the sinner had committed. One who commits a greater sin and dies without repenting for it, the Almighty Allah will deal with him with justice on the Day of Qiyamat. So much so that the mark of the sin that he committed most will be attached to him. For example, the drunkard will be holding a wine bottle, the terrible stench of which will cause discomfort to the people. Similarly, the musician will have the instrument stuck to his hands. The gamblers will be having the instrument of gambling with them. The same thing is alluded to in the verse:
"The guilty shall be recognised by their marks."
(Surah Rahman 55:41)

The Holy Prophet (s.a.w.s.) and his trustworthiness

One day a poor man came to the Holy Prophet (s.a.w.s.) and told him of his poverty. The Prophet (s.a.w.s.) said,
"Sit down! Allah is most Powerful."

Another beggar came and the Holy Prophet (s.a.w.s.) told him to sit down too. Then a third destitute arrived and the Prophet (s.a.w.s.) told him also to sit down. After some time a person came and presented four saa (approximately 12 kilos) of wheat as Zakat to the Holy Prophet (s.a.w.s.). The Holy Prophet (s.a.w.s.) distributed one saa (3kilos) of wheat to each of the poor men. One saa of it remained. After the Maghrib and Isha prayers the Holy Prophet (s.a.w.s.) announced that a saa of wheat is remaining with him. Any needy person can come and collect it from him; but no one came forward. The Holy Prophet (s.a.w.s.) was compelled to take this trust home. Ayesha says that, that night the Holy Prophet (s.a.w.s.) was very restless. When she inquired the reason of his restlessness he replied,
"I am fearful of the consequences in case I die today and this trust is not delivered to a deserving person."

It is also mentioned that when the Holy Prophet (s.a.w.s.) was on his deathbed, he had an amount of six or seven dinars for the poor and the needy, remaining with him. He sent for the money and after counting it, said,
"It is possible that Muhammad (s.a.w.s.) may reach the presence of his Lord while these dinars are still in his custody!"

Then he (s.a.w.s.) summoned Amirul Momineen Hazrat Ali (a.s.), and gave him the dinars for the poor and the destitutes and then said,
"Now I can rest in peace."
(Naaseekhut Tawarikh Vol.3, Pg544)

Secrets are also trusts

Sometimes a person is told a secret and asked not to divulge it to others. This secret is also a kind of trust. It may also be that one learns of a secret regarding another person and is sure that that person would prefer that it is not made known to others. This secret is a trust according to Shariat. To divulge a secret that one has come to know is Khayanat. The following saying of Ali (a.s.) is present in Ghurarul Hikam:
"To divulge a secret that you are supposed to guard is Khayanat and betrayal."

It is absolutely haraam to betray a secret which is a trust, whether of a friend or an enemy, of a righteous person or an evil one.

Private discussion is also a trust

The Holy Prophet (s.a.w.s.) mentions that:
"People who sit together must be careful of safe-guarding the trust. It is not permitted for a believer to disclose a secret of his believing brother."
(Behaarul Anwaar Vol.16)

Abu Zar has related from the Holy Prophet (s.a.w.s.) that he said:
"O Abu Zar, one who sits in company must be cautious of safeguarding trust. For if you expose a secret of your believing brother, you would have committed Khayanat. So, keep away from such things."
(Wasaelush Shia)

Whatever is discussed in a meeting is also a trust with the participants. Anything that is to be kept confidential must not be divulged. It is recorded in the traditions:
"One who sits in company must be wary of maintaining the trust but it is not haraam to expose the secret of three kinds of meetings: One, where an unlawful murder is planned; two, where fornication is planned; three, where it is planned to loot someone's property. The facts of such meetings could be presented in the court for proving someone's right. In some cases it assumes such importance that it becomes necessary to disclose a secret."
(Behaarul Anwaar)

In Surah Tahrim the Almighty Allah flays some of the Prophet's wives (Ayesha and Hafasa) for betraying a secret of the Holy Prophet (s.a.w.s.). Allah has advised them to repent.

"If you both turn to Allah, then indeed your hearts are already inclined (to this)."
(Surah Tahrim 66:4)

The same chapter also mentions the wives of Hazrat Lut (a.s.) and Hazrat Nuh (a.s.) in the following words:
"Allah sets forth an example to those who disbelieve the wife of Nuh and the wife of Lut; they were both under two of Our righteous servants, but they acted treacherously towards them so they availed them naught against Allah, and it was said: Enter both the Fire with those who enter."
(Surah Tahrim 66:10)