The validity of using the term 'settlement' (*sulh*) when the intended meaning is release or gift of a portion of a debt or asset.

General Chapter

Al-Mughni

Book of Settlement

Book 16 · Issue 7 · Bab 1

Open in Qurani

Primary text

If one releases a portion of a debt or gifts a portion of an asset using the exact wording of settlement, such as saying, 'Settle with me for half your debt,' or 'for half of this house,' and the other replies, 'I have settled with you for that,' this is invalid according to Al-Qadi and Ibn Aqil, and is the opinion of some Shafi'i scholars.

Supporting text

The majority of Shafi'i scholars permit the settlement in this case, arguing that if it were not permitted by its explicit terminology, it would cease to be called *sulh* and have no legal bearing. However, when the term *sulh* is used, it is named *sulh* due to the presence of the word, even if the underlying meaning resembles a conditional gift or a gift with reward. The term *sulh* primarily implies exchange when there is compensation; otherwise, it does not. The essence of settlement is agreement and contentment, which can occur without compensation, similar to transfer of ownership being called a sale with compensation and a gift without it. Our position is that the term *sulh* implies exchange because when one says, 'Settle with me by gifting thus,' or 'for half of this asset,' it implies a counter-element, making it like saying, 'Sell it to me for a thousand.' If the particle 'upon' (*'ala*) is added, it functions as a condition, similar to the verse concerning the barrier [Quran 18:94]. Both conditional forms are impermissible, evidenced by the case where the terms of condition or exchange are stated explicitly. Their claim that it is named settlement is contested, and if named so, it is figurative, as it pertains to terminating dispute. We maintain that settlement necessitates exchange, or if not, the exchange is implied by the preposition used, as the term *sulh* requires a preposition to convey reciprocity, implying exchange as explained.