The Administration of the Zakah (2/5)
Abu`l Hasan al-Mawardi
This zakah on animals becomes an obligation on two conditions:
First, they search out their own sustenance, feeding off pasture-land (sa'imah animals), such that their maintenance is of insignificant cost, and their produce in milk and offspring is abundant. If, however, they are put to work or are fed, then zakah is not due on them according to Abu Hanifah and ash-Shafi’i, although Malik considers that zakah must also be paid, as in the case of sa'imah animals.
Second,a full year has passed on them such that reproduction has taken place, for the Prophet, may the peace and blessings of Allah be upon him, said: "There is no zakah on goods over which a year has not passed." New-born animals are only taken into consideration when a year has passed with respect to their mothers - if they are born before the commencement of the current assessment year, and if their mothers constitute a nisab. If the mothers do not form a nisab, then according to Abu Hanifah, zakah is paid if the mothers have been possessed for a year and they constitute a nisab when their newborn are added to their number - although according to ash-Shafi'i, the requirement that they have been possessed for a year may only be taken into consideration from the moment the nisab is reached.
There is no zakah on horses, mules and donkeys; Abu Hanifah, however, considers that a dinar must be paid for each sa'imah mare. But the Prophet, may the peace and blessings of Allah be upon him, said: "I have spared you any tax on horses and slaves."
If the person in charge of tax-collection is a delegated agent, then he takes the zakah, in the cases where the fuqaha differ, in accordance with his own judgement and ijtihad, and not according to the ijtihad of the Imam or the ijtihad of the owners of the goods; the Imam may not set the amount which he should take. If he is an executory agent, then he acts in accordance with the ijtihad of the Iman, but not that of the owners, in disputed cases; he may not make his own ijtihad; it is the Imam who must set the amount for him to collect - he is merely the person sent to collect what the Imam has decided upon. As a consequence, this agent may be a slave or a dhimmi, although general responsibility for zakah is not then permitted in this case, since the task involves an authority which cannot be validly established in the case of non-belief or slavehood. If it is a question of a specific zakah, a distinction must be made: if the original amount of the goods and the amount of zakah payable is known, the person charged with the task of collection may be a slave or a dhimmi, as he has no authority as such but rather fulfils the role of a messenger; if, however, neither the original nor the zakatable amount is known, he may not be a dhimmi, as it would mean entrusting him with wealth but not being able to trust what he says about it - although he may be a slave, as the latter's words are accepted (as valid) at law.
If the tax-collector is late in approaching the owners of goods after their zakah has become due, and if it occurs after commencement of collection from other persons, then they should wait, as he can only collect from one group after the other; but if he is late in coming to all of them, and the customary time for payment passes, then they should pay it themselves as the command to pay it to him is dependent upon their being able to do so, and this obligation is annulled when they are unable. The person who undertakes to pay himself, may do so in accordance with his own ijtihad if he is a person capable of ijtihad; if not, then he should seek the advice of a faqih whose judgement he accepts, and he does not have to seek the advice of another; if however, he does seek the advice of two faqihs, and one advises him that he must pay and the other that he is exempt, or one makes an assessment of one amount and the other of a greater amount, then the followers of ash-Shafi'i differ as to what he should do: according to some, he should accept the more demanding of the two, while according to others, he may choose between the two. If the collector arrives after the owner of the goods has paid, according to his own ijtihad or that of the person he consults, and judges that he has an obligation to pay when he has been exempted, or that he must pay more than he has paid, then the ijtihad of the agent should be put into effect as long as there is enough time left; if not, then the ijtihad of the owner of the goods is considered good and is acted upon.
If the zakah agent collects in accordance with his ijtihad, and considers either that someone is obligated or is exempt in accordance with his judgement, and then the owner of the goods makes his own ijtihad, such that he considers he has an obligation to pay what has been exempted him, or that more is due, then the owner of the goods must pay what has been exempted him or must pay the additional amount owing: this is because of what he owes Allah, may He be exalted, as he himself recognises that he still has an obligation towards those categories of persons entitled to the zakah.
2. The second kind of zakatable wealth is the fruit of date-palms and other trees.According to Abu Hanifah, zakah is payable on all fruit-trees, while for ash-Shafi'i, it is only on date-palms and vines, and no zakah is payable on any other fruit-trees.
The zakah of fruits is payable on two conditions: i. ripening has commenced and they are good for eating; anyone who harvests them before ripening has begun has no obligation to pay - although it is disliked that someone does this deliberately in order to get out of paying, while it is not disliked if done out of necessity; ii. the second condition is that the amount should be of five wasq; there is no zakah, according to ash-Shafi'i, if the amount is less than this. A wasq is *****alent to sixty saa' and a saa' is five (Iraqi) pounds and a third. Abu Hanifah considers that it must be paid on both small and large amounts alike.
Abu Hanifah has also prohibited the assessment of fruits on the part of their owners; ash-Shafi'i permits such an assessment for zakah as a way of helping those who are entitled to a portion of it. The Prophet, in effect, appointed agents to assess the fruits, saying to them: "Be exact in your assessment as there is wasiyyah, 'ariyyah, waati'ah and naa'ibah in this wealth." The wasiyyah refers to the inheritance bequeathed by the owner after his death; the 'ariyyah refers to dates given as a gift during the owner's lifetime; the waati'ah, to the dates eaten by travellers on the road (the word watia referring to their treading the earth); and the naa'ibah to the natural losses incurred during times of natural disasters.
As for the fruit of Basra, its vines are assessed, as is done elsewhere, but not its palms, as they are too numerous and would be too difficult to estimate; moreover, they willingly permit travellers to eat therefrom. The assessment, made by the first generation of Muslims, of the produce of the narrow paths, which was collected on Fridays and Tuesdays, is for the most part given to those entitled to this tax; as compensation for the produce of these narrow paths, they were (later) given the biggest fruits and this tax was imposed on (the owners in) the middle of Basra, and a tenth thereof was taken from them there. This obligation is not imposed on others, and so they find themselves in a quite different situation from other people.
It is not permitted to assess the vines and palms until the fruits are fully formed; thereupon both fresh dates and grapes are assessed, and then also estimated as dried dates and currants; then the owners, if they are trustworthy, are given the choice as to whether they keep the amount estimated, in order that they may deal with them, but remain liable to pay out the *****alent amount of zakah later, or that they keep them in trust but are prevented from dealing with them until the drying is complete, in which case the zakah is taken when it reaches the nisab.
The amount of zakah is a tenth, if they are irrigated with sweet or flowing water, and a twentieth, if irrigated by means of buckets or reservoirs. If both methods are used, then according to some, the one which is used the most is considered, while others say that each is calculated according to the degree employed. If the owner of the fruit and the agent differ as to the manner of irrigation, the owner's word is taken and the agent has him make an oath of affirmation; if, however, he refuses to make the oath, he is still only liable for what he himself acknowledges.
The various kinds of dates are calculated together as a whole, as are the different kinds of vine-fruits, since they are all of one species; the dates and vine-fruits are not, however, combined together, as they are two different species. When the fruits of the palm and the vine have dried into dates or currants, then their zakah is not taken until the drying is complete. If they are of the type that is only taken fresh, a tenth of their sale-price is taken after sale. If those entitled to them need to claim their right when the fruits are fresh, this is permitted, according to one of two opinions - if the division is considered as a singling out of a share, while it is not, according to others - if the division is considered as a sale.
If the fruit perishes after it has been assessed - by means of a natural disaster from the earth or the sky - but before any possibility of payment of the zakah, then the obligation is annulled; if, however, it perishes after a possibility of payment, then it must still be taken.
(Continued)