Question:

My roommate is a very bad debt collector, even though I know he can pay it. I have tried various ways to urge him to pay the debt, but to no avail. Can I quietly take money from his wallet just for the amount he owes me?

Summary Answers:

A person is allowed to take back property that is believed to belong to him that was borrowed by another person, or that was confiscated without his consent. This is after he has tried various other ways to get it back but to no avail. So in this case, a person is allowed to take back his property from his friend who is too lazy to pay the debt, even if secretly and without his knowledge.

However, it is required that he does not take more than his right, does not take items of a different type and that the act does not bring harm to him.

Answer Description:

Alhamdulillah we express our gratitude to Allah SWT. Blessings and salutations to the Prophet SAW, his wives and family SAW, and those who follow in his footsteps until the hereafter.

Obligation to pay debts

The debt must be paid based on many verses of the Quran and hadith. The Prophet SAW said:

مَنْ أَخَذَ أَمْوَالَ النَّاسَ يُريدُ اَداءَهَا اَدَّى اللهُ عَنْهُ وَمَنْ Aَخَذَ يُريدُ إِتلَافَهَا َتَلَفَهُ اللهُ

It means: Whoever takes human property (debt) with the intention of paying it back, then Allah SWT will pay it for him. Whoever takes human property (debt) with the intention of spending it without paying it back, then Allah SWT will destroy him.

Narrated by al-Bukhari (2387)

Abu Hurairah R.A also narrated that the Prophet SAW said:

نَفْسُ الْمُؤْمِنِ مُعَلَّقَةٌ بِدَيْنِهِ, حَتَّى يُقْضَى عَنْهُ

Meaning: The soul of the believer is suspended (suspended account of his deeds) due to debt, until the debt is paid for him.

Narrated by al-Tirmizi (1078)

Islam also looks down on the act of postponing the payment of debts and considers it as an injustice. From Abu Hurairah R.A, the Prophet SAW said:

مَطْلُ الْغَنِيِّ ظُلْمٌ

Meaning: Postponing the payment of debt for people who can afford it is a tyranny.

Sahih al-Bukhari (2287)

Friends pay off debt, can you take it secretly?

In a situation where a person is denied his rights, then the original law is that he needs to bring the matter to court. But in some circumstances, he is allowed to take back his right secretly and without the knowledge of the person who holds or withholds his right.

This matter is discussed by the scholars and is termed as al-zafr bi al-haq, which means taking back the rights that have been withheld or confiscated. Among the arguments that stipulate this matter is the word of Allah SWT:

وَجَزَاءُ سَيِّئَةٍ سَيِّئَةٌ مِّثْلُهَا

Meaning: And (if you want to retaliate then) the retribution of an evil is an evil that is equivalent to it; meanwhile whoever forgives (people's crimes) and does good (to him), then his reward is still guaranteed by Allah (by being given the best reward). Indeed, Allah does not like those who are unjust.

Surah al-Shura (40)

Likewise the hadith from Aisyah R.Anha, that one day Hindun R.Anha came to complain to the Prophet SAW about her husband Abu Sufyan who was a stingy person, then she stated that she wanted to take her husband's property, then He said:

خُذِي مَا يَكْفِيكِ وَوَلَدَكِ بِالْمَعْرُوفِ

Meaning: Take from his property just enough to meet your and your child's needs.

Narrated by al-Bukhari (7180)

Likewise with the hadith of the narration of 'Uqbah bin 'Amir, that the Prophet SAW said:

إِنْ نَزَلْتُمْ بِقَوْمٍ, فَأُمِرَ لَكُمْ بِمَ يَنْبَغِي لِلَّضّيْفِ فَقْبْلواُ, فَإِنْ لَمْ يَفْعَلُوا فَخُذُوا مِنُمْ حَقَّ الضَّيفِ

Meaning: If you live with a tribe, and are given rights that should be given to guests, then accept it. If they do not do so, then take from them the rights that guests deserve.

Narrated by al-Bukhari (2461)

According to Ibn Hajar al-'Asqalani when commenting on this hadith:

وَاسْتُدِلَّ بِهِ عَلَى مَسْأَلَةِ الظَّفَرِ وَبِهَا قَالَ الشَّافِعِيُّ فَجَزَمَ بِجَوَازِ الْأَخْذِ فِيمَا إِذَا لَمْ يُمْكِنْ تَحْصِيلُ الْحَقِّ بِالْقَاضِي كَأَنْ يَكُونَ غَرِيمُهُ مُنْكِرًا وَلَا بَيِّنَةَ لَهُ عِنْدَ وُجُودِ الْجِنْسِ فَيَجُوزُ عِنْدَهُ أَخْذُهُ إِنْ ظَفِرَ بِهِ

Meaning: This hadith is used as evidence for the issue of al-Zafar and it was mentioned by Imam al-Syafie, and he emphasized the necessity of the law to take rights that cannot be taken through the judicial process. For example if the debtor denies that he owes and the creditor has no proof, in the event that he finds property of the same type as his right. So according to al-Syafie, he is required to take it if he finds it.[1]

According to al-Khatib al-Syarbini:

)وَإِنْ) (اسْتَحَقَّ) شَخْصٌ (عَيْنًا) تَحْتَ يَدٍ عَادِيَةٍ (فَلَهُ) أَوْ وَلِيِّهِ إنْ لَمْ يَكُنْ كَامِلًا كَمَا نَصَّ عَلَيْهِ الشَّافِعِيُّ (أَخْذُهَا) مُسْتَقِلًّا بِالْأَخْذِ بِلَا رَفْعٍ لِقَاضٍ وَبِلَا عِلْمِ مَنْ هِيَ تَحْتَ يَدِهِ لِلضَّرُورَةِ (إنْ لَمْ يَخَفْ) مِنْ أَخْذِهَا (فِتْنَةً ) أَوْ ضَرَرًا

Meaning: If a person has a right to an item that is under the control of an oppressor, then according to the text of Imam al-Syafie, if he does not have the perfect conditions of ownership, he or his guardian has the right to take it back on his own initiative without complaining to the judge, and without the knowledge of the person who controls his property; this is due to a desperate situation, and is allowed if there is no fear of defamation or harm due to his actions.[2]

In addition, Imam al-Qarafi put the method:

أَنَّ كُلَّ أَمْرٍ مُجْمَعٌ عَلَى ثُبُوتِهِ، وَتَعَيَّنَ الْحَقُّ فِيهِ، وَلَا يُؤَدِّي أَخْذُهُ لِفِتْنَةٍ، وَلَا تَشَاجُرٍ وَلَا فَسَادِ عَرْضٍ أَوْ عُضْوٍ فَيَجُوزُ أَخْذُهُ مِنْ غَيْرِ رَفْعٍ لِلْحَاكِمِ

Meaning: Verily, every matter that is agreed upon and believed to be his right, and if it is taken does not lead to slander, strife and damage to property or body, then it is required to ambi without complaining to the judge.[3]

Sheikh Muhammad Sidqi Aali Borno also mentioned the method:

صاحِبُ الحَقِّ إِذا ظَفِرَ بِجِنْسِ حَقِّهِ كان لَهُ أَنْ يَأْخُذَهُ

Meaning: The owner of the right when he finds a property of the same type as his right (which someone else has), he is allowed to take it.

According to him, based on this method:

That whoever has a financial right against another, and the debtor or the debtor denies his right, then if the owner of the right finds property of the nature of his right that belongs to the debtor or the ungodly, he will be required to take from him the amount of his right, even if secretly and without the debtor's permission, and he will not be blamed for it, even if he is accused of stealing it. يحلف على انه ما سرق; because he is oppressed, and those who are righteous are not righteous

Meaning: Indeed, a person who has property rights against another person, and the debtor delays payment of the debt or denies his right, then the owner of the right finds property of the same type that belongs to the debtor or who withholds his right, then the creditor has the right to take it at the rate of his right, although secretly and without the debtor's permission, and he is not considered guilty of the act. If he is accused of stealing, then he can swear that he did not steal, because he was wronged, and the oath is counted based on the intention of the person swearing if the person swearing was wronged.[4]

However, Darul Ifta' Jordan (Jordan's Fatwa Body) places several conditions that must be met before taking this action, including:

Should not take more than the right rate
Guaranteed to be safe from punishment
This act must be done by the owner of the right himself and cannot be delegated to others
It is not permissible to take property of a different type from its right, even if the value is the same.
This action was taken after he was unable to recover his rights due to the lack of evidence, or due to the difficulty of the judicial process that had to go through.[5]
 

Conclusion

After all, a person is allowed to take back property that is believed to be his that was borrowed by someone else, or that was confiscated without his consent. This is after he has tried various other ways to get it back but to no avail. So in this case, a person is allowed to take back his property from his friend who is too lazy to pay the debt, even if secretly and without his knowledge. However, it is required that he does not take more than his right, does not take items of a different type and that the act does not bring harm to him.

God bless you.

SUMBER :https://muftiwp.gov.my/artikel/irsyad-fatwa/irsyad-fatwa-umum/5493-irsyad-al-fatwa-siri-ke-743-rakan-liat-bayar-hutang-bolehkah-ambil-wangnya-secara-sembunyi

Date of Input: 03/01/2023 | Updated: 03/01/2023 | asmunir