Question:
Assalamualaikum Datuk Mufti. I have a question regarding the insurance money we received from the death of our colleague from his family who asked us to use the money to go out and eat. Is it permissible for us to donate the money to tahfiz centre with the intention of donating it on behalf of our friend who has passed away? Or is it only permissible to be used to treat ourselves with a meal? Hope for an explanation from you. Thank you.
Answer:
Waalaikumussalam wbt,
Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.
We start with the statement of Allah SWT:
وَتَعَاوَنُوا عَلَى الْبِرِّ وَالتَّقْوَىٰ
“And cooperate in righteousness and piety,”
Surah al-Maidah (2)
In this verse, Allah SWT explains the commandment to always cooperate in righteousness and piety. According to Dr Wahbah al-Zuhaili in his book, the word البرّ here means hibah. Thus, here, the verse is the evidence of the sanctioning of hibah clearly showing that hibah is encouraged in Islam. (See al-Mu’tamad fi al-Fiqh al-Syafi’i; 3/176)
Coming back to the above question, regarding the ruling of donating money given originally for something else (such as to eat out). Thus, this matter should be considered in the chapter of tabarru’ (charity). The basis of tabarru’ is aqad, then the requisites of tabarru’ must be fulfilled which are; the person who is giving the tabarru’, the recipient of tabarru’, the property that is the tabarru’ and sighah (ijab and qabul). Among these requisites, sighah plays an important role in determining the tabarru’ and the intention of the mutabarri’ (the person giving the charity). (See al-Mausu’ah al-Fiqhiyyah al-Kuwaitiyyah; 10/67)
In this matter, it is impermissible for a person to spend the money or property given on matters other than what the mutabbari’ has stated. The reason is the recipient is considered as the proxy of the giver to fulfil the charity. (See al-Mu’tamad fi al-Fiqh al-Syafi’i; 3/337-338)
Imam al-Nawawi said in his book:
لِلْوَكَالَةِ حُكْمُ الْأَمَانَةِ. فَيَدُ الْوَكِيلِ يَدُ أَمَانَةٍ
For the proxy is the responsibility of trust, thus, for a proxy, he is the person who is responsible to carry out the trust,” (See Rawdatu al-Tolibin; 4/325)
Hence, if a proxy does not carry the trust given to him, then he has betrayed the trust given by the person who entrusted him with the charity. Betrayal of trust is prohibited in Islam. Allah SWT states:
{يَاأَيُّهَا الَّذِينَ آمَنُوا لَا تَخُونُوا اللَّهَ وَالرَّسُولَ وَتَخُونُوا أَمَانَاتِكُمْ وَأَنْتُمْ تَعْلَمُونَ}
“O you who have believed, do not betray Allah and the Messenger or betray your trusts while you know [the consequence].”
Surah al-Anfal (27)
However, if the recipient wishes to donate it to another institution or others, then he should inform and ask for permission from the giver. And if the giver could not be reached or contacted to ask for permission, then it is permissible to donate it for beneficial and charitable purposes.
Imam al-Ramli said:
"معلوم أن الولي أو الوكيل لا يفعل إلا ما فيه المصلحة"
“As we know a wali or proxy will not do anything unless there is maslahah (benefit),” (See Hasyiyah al-Ramli ‘ala Asna al-Matalib; 2/46)
Coming back to the question, if the money is given on the basis of a gift or hibah and not as a trust (proxy in the matter) and it was accepted, then it has become the absolute right of the recipient and the recipient reserves the right to spend it as he wishes. (See al-Mu’tamad fi al-Fiqh al-Syafi’i; 3/184).
Conclusion
To conclude, we would like to state that the akad of the gift must first be ascertained, if it is as hibah then the recipient is free to use or spend it however he wants. However, if the akad is on the basis of a proxy, then the wishes of the giver should be fulfilled. However, if the recipient wishes to spend it elsewhere, then he should first ask for permission or inform the giver that it is to be used for other beneficial and charitable matter. Lastly, we pray that Allah SWT would give us the correct understanding in His religion and make us steadfast in our faith, grant us sincerity and ease in worship. Hopefully, Allah SWT will accept all our deeds.
Wallahua’lam.