GT20302

USUL FIQH/ISLAMIC
JURISPRUDENCE

URF (CUSTOM)

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 Introduction
• As a noun derived from its Arabic root
'arafa (to know), 'urf literally means 'that
which is known'. In its primary sense, it
is the known as opposed to the
unknown, the familiar and customary as
opposed to the unfamiliar and strange.
`Urf and 'adah are largely synonymous,
and the majority of ulema have used
them as such.
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 Introduction
• 'Urf is defined as 'recurring practices which
are acceptable to people of sound nature.'
This definition is clear on the point that
custom, in order to constitute a valid basis
for legal decisions, must be sound and
reasonable.
• Hence recurring practices among some
people in which there is no benefit or which
partake in prejudice and corruption are
excluded from the definition of 'urf.
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 Conditions of Valid ‘Urf
1) `Urf must represent a common and recurrent
phenomenon. The practice of a few
individuals or of a limited number of people
within a large community will not be
authoritative, nor would a usage of this
nature be upheld as the basis of a judicial
decision in Shari'ah courts. Example: when a
person buys a house or a car.

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 Conditions of Valid ‘Urf
2) Custom must also be in existence at the
time a transaction is concluded. In
contracts and commercial transactions,
effect is given only to customs which
are prevalent at the time the
transaction is concluded, and not to
customs of subsequent origin.

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 Conditions of Valid ‘Urf
3) Custom must not contravene the
clear stipulation of an agreement. The
general rule is that contractual
agreements prevail over custom, and
recourse to custom is only valid in the
absence of an agreement.

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 Conditions of Valid ‘Urf
4) Custom must not violate the nass, that
is, the definitive principle of the law.
The opposition of custom to nass may
either be absolute or partial. If it is the
former, there is no doubt that custom
must be set aside.

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 Conditions of Valid ‘Urf
• Examples: the practice of usury (riba).
Another example: the Prophet is said
to have forbidden conditional sale, that
is, sale with conditions that may not be
in agreement with the nature of this
contract.

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 Types of ‘Urf / Custom:
1) Verbal ‘Urf (Qawli): consists of the
general agreement of the people on
the usage and meaning of words
deployed for purposes other than their
literal meaning.

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 Types of ‘Urf / Custom:
• As a result of such agreement, the
customary meaning tends to become
dominant and the original or literal
meaning is reduced to the status of an
exception. Example: the word Walad.

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 Types of ‘Urf / Custom:
2) Actual `urf (fi’li): consists of commonly
recurrent practices which are accepted
by the people. An example of actual
'urf is the give-and-take sale, or bay' al-
ta'ati, which is normally concluded
without utterances of offer and
acceptance.

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 Types of ‘Urf / Custom:
*`Urf, whether actual or verbal, is once
again divided into the two types of
general and special: al-urf al-`amm and
al-'urf al-khass respectively.

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 Types of ‘Urf / Custom:
1) General ‘Urf (al-urf al-`amm): is one
which is prevalent everywhere and on
which the people agree regardless of
the passage of time. Example: bay al-
ta'ati and the customary practice of
charging a fixed price for entry to public
baths.

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 Types of ‘Urf / Custom:
2) Special ‘Urf (al-'urf al-khass): is
prevalent in a particular locality,
profession or trade. By its very nature,
it is not a requirement of this type of 'urf
that it be accepted by people
everywhere.

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