A paper presented to the International Islamic Fiqh Academy at its 4th Session
Held in Jeddah, 18-23 Jumādī al-Akhirah, 1408H/6-11 February, 1988 CE
Majallat Majma’ al-Fiqh al-Islami (Journal of the International Islamic Fiqh Academy)
Vol. 4, pp. 1749-1770
Praise be to Allah, and may peace and blessing be upon His Messenger Muhammad and upon His family and companions.
The term surqufliyyah is not Arabic; rather, it is a Persian word. It refers to a recent custom whereby a tenant forgoes their right in the leased premises that they have occupied, ceding it to a third party, and charges as consideration an amount of money agreed upon by both parties. It may be known colloquially as khulu, which is derived from takhliyyah, i.e. to grant another person access to what is in one’s custody. This is of two types:
First: The old and the new tenant reach an agreement whereby the former surrenders his right to the latter in return for a sum of money as mentioned above. In this scenario the landlord is not involved in the deal and derives no advantage from it.
For this case we should know the Shariah basis for taking the money and for the disposal by the existing tenant, and the mode by which the new tenant gives the money.
Also, the stance of the landlord must be determined regarding this concession by the person who has rented his property and regarding the new tenant’s acceptance of it; can he stop this arrangement or not?
Second type: Another form of this transaction has grown popular nowadays whereby the owner is the one who receives the key money from the tenant. Many owners became aware that key money had become the customary practice in the market. Instead of others enjoying the money, they felt they had a greater right to it. For instance, the owner receives two hundreds dinars as key money and fifty dinars for the yearly rental. The difference between this type and the first type is clear; in the first type the owner is far removed from the new transaction between the new tenant and the old tenant whereas in this type the landlord has received a sum of money when leasing out the shop from the beginning. What then is the Shariah ruling on the amount taken from the first tenant?
I say ‒ may Allah grant us ability – before discussing the Sharīʿah ruling on this transaction, we need to know how Muslim jurists understand rights and their types in order to know whether the tenant has the right to undertake such a transaction or not. It is known, as will become clear to us through the research, that the tenant in the first case owns only the usufruct of the asset, not the asset itself. In order to clarify the status of the ownership right of usufruct among those rights, we should refer to the opinions of Muslim jurists (fuqahāʾ).
