The Precepts of Compromise Settlements (Ñul¦)
2188. A compromise settlement is defined as the agreement of one person with another to place a part of his property or the benefits acquired from it in the possession of the other or make its use legal for him, or to relinquish a claim or a right of his own. The other person in return also places a part of his property or the benefits acquired from it in the first person’s possession, or makes its use legal for him, or relinquishes a claim or a right of his own.
The validity of a compromise settlement, as defined above, is questionable in a case wherein nothing is ceded in return.
2189. The parties involved in an agreement to compromise must both be sane and b¡ligh. They must also have the intention to compromise, and must not have been wrongfully compelled to do so. If they had been compelled, but later consent to it, the compromised will be sanctioned. They must also not be feeble-minded, or interdicted from disposing their property by a ¦¡kim al-shar’yy due to bankruptcy.
2190. It is not necessary for the formal expression of a compromise to be uttered in Arabic; rather, it is valid through the expression of any words that convey that they have compromised and reached an agreement with each other. Similarly, it is also realized through a mutual exchange; rather, through the act of giving from one party and the act of acceptance from another with the intention of compromising.
2191. If a person gives his sheep to a shepherd so that he may take care of them—for example—for a year, make use of their milk and give an amount of ghee in return, then if he agrees to give the sheep’s milk in return for the shepherd’s labor and the ghee as a compromise settlement, there will be no problem in it.
In fact, if he rents the sheep to the shepherd for a year so that he make use of their milk, and in return give him a specific amount of ghee that is manufactured from other than sheep’s milk, there will be no problem in it either.
2192. If a person wishes to cede a claim or right of his own to another person in a compromise settlement, its validity will be contingent on the other person’s acceptance. However, if he wishes to relinquish a claim or a right of his own, the acceptance of the other party is not necessary.
2193. If a debtor is aware of the amount he owes, whereas the creditor is not, then should the creditor settle the debt for an amount that is less than the actual amount, such as settling for $1000 in a case where the actual debt is $5000, the use of the balance will not become permissible for the debtor, unless he informs the creditor of the actual amount and satisfies him, or the situation should be such that, had the creditor known of the actual debt, he would have settled for the same amount nonetheless.
2194. If two people wish to reach a compromise by exchanging two things which are of the same kind, and both of whose weight is known, obligatory precaution will dictate that the weight of one should not be greater than the weight of the other. However, if their weights are unknown, then the compromise settlement will be valid even though they may entertain the possibility that the weight of one may be greater than the other.
2195. If two people are owed by one person, or by two persons, and they (the creditors) wish to arrive at a compromise settlement between themselves by ceding the debts to each other, then in the event that the debts are of the same kind, and their weights are the same, such as the case where both are owed 10 kgs of wheat, their compromise settlement will be valid. The same will hold in the case where the debts are not of the same kind, such as a case where one is owed 10 kgs of rice and the other is owed 12 kgs of wheat. However, if the items they are owed are of the same kind, and these are items which are usually measured by weight or volume, then in the event that their weights or volumes are not equal, their compromise settlement will be problematic.
2196. If a creditor is owed something that he can claim after a certain period, and he wishes to settle for a lower amount, with the intention of relinquishing his claim to a part of the debt, and claiming possession of the remaining debt immediately, it will not be problematic.
2197. If two people reach a compromise settlement with each other, they may cancel the settlement with each other’s consent. Additionally, if the right of cancelling the settlement is stipulated within the settlement for both of them, or one of them, then the one(s) vested with this right may cancel the compromise settlement.
2198. As long as the buyer and the seller have not left each other’s presence, each of them has the right to cancel the transaction. Similarly, if a buyer purchases an animal, he reserves the right to cancel the transaction before three days have passed. Likewise, if the buyer fails to make payment for the goods that he purchased, for three days, and does not take possession of the goods, the seller may cancel the transaction. However, the person who enters a compromise settlement does not have the right to cancel the settlement in these three cases. In the event that the other party involved in the settlement fails to deliver the property agreed within the compromise, for a period that exceeds conventional norms, one may cancel the compromise settlement. Similarly, he may also cancel it owing to the other options (khiy¡r) which were elaborated in the section on buying and selling.
2199. If the thing that one acquires from a compromise settlement is defective, one may cancel the settlement. However, if he wishes to take the difference between the price of the defective and non-defective item, it will be problematic.
2200. If a person concedes a part of his property to another person in a compromise settlement, and stipulates within the settlement that after his death, the property that he is conceding should—for example—be turned into an endowment, and the other person accepts the condition, then he must act according to it.
