CHAPTER I

INTRODUCTION

A. Background of the paper

In the life of society, people always need others, reflect on helping each
other in various things, including in dealing with various problems that exist in
society. Even economically, to meet the needs of one with another has the nature
of dependence on others. There is no versatile human being, because humans have
a weak nature (dha'if).
A human is only an expert in a particular field, in other ways there are
shortcomings, such as a farmer able to grow rice, sugarcane, and other crops, but
he can not afford the equipment in agriculture. A farmer has a reliance on the
skills of others to make equipment in other fields. On the other hand experts in the
field of making agricultural equipment but not good at farming. Therefore, one
always has dependence on the jobs on others.
Every human being has needs economically, socially, politically, and
others so often there are conflict of will or often conflict in social life. To maintain
the stability of individual needs, there needs to be rules that govern human needs
of so as not to violate the rights of others1.

B. Problem Formulation
1. What is the meaning of possession (Nadhariyah Milkiyah)?
2. What are the causes of ownership?
3. How is the classification of ownership?

1
Ismail Nawawi, Fikih Muamalah Klasik dan Kontemporer: Hukum Perjanjian, Ekonomi, Bisnis,
dan Sosial (Bogor: Penerbit Ghalia Indonesia, 2012), 57-58.

1
 CHAPTER II
DISCUSSION

A. Understanding About Possessions (Nadhariyah Milkiyah)

The word milkiyah was originally from the word milk and malakiyah was
originally from malakah. Malakah is also one of its meaning, belongs. Milk by
language is:
َ ُ ‫ش ِئ َو ْالقُد َْرة‬
‫علَى ا ْ ِْل ْستِ ْبدَا ِد ِب ِه‬ َّ ‫ِإ ْختِ َوا ُء ال‬

"Having something and being able to act freely against it".

While the meaning of milk by term is :

ِ‫ف إِ ََّّل ِل َما نِع‬ َ َّ ‫صا ِحبَهُ الت‬

ُ ‫ص َّر‬ ُ ‫س ِو‬
َ ‫غ‬ َ ُ‫ش ْرعا ي‬ َ ِ‫اِ ْخت‬
َ ‫صا ص َحا ِجز‬
"An ikhtisas that prevents others, according to syara’ which justifies the owner of
the ikhtisas act on goods that belong to his will, unless there is a barrier".2

Etymologically, ownership in Arabic is milkun which means property or

possession. According to Zuhaily (1989: 56-57 Juz IV), meaningful ownership of
human ownership of a property or authority to transact freely against it. According
to the fiqh ulama, ownership is the privilege of an object that prevents others from
acting on it and allows its ownership to transact directly on it as long as there is no
shari'ah barrier.3
If a person already has a lawful item according to the Shari'a, the person is
free to act on the object, whether sold or pawned, either by himself or through the
intermediary of another person. However, there are goods that can not be owned
unless justified by sharia, such as the assets that have been reproduced and the
assets of the baitul mal. Deprecated possessions shall not be declared or granted,

2
Teungku Muhammad Hasbi Ash-Shiddieqy, Pengantar Fiqh Muamalah (Semarang: PT.Pustaka
Rizki Putra, 2000), 9-10.
3
Ismail Nawawi, Fikih Muamalah Klasik dan Kontemporer: Hukum Perjanjian, Ekonomi, Bisnis,
dan Sosial,. 57.

2
 unless they have been damaged or their maintenance costs are more expensive
than their income. In this case the government may grant permission to mobilize
the property.4
The right to own something must, basically, be based on the Qur'an and
the Hadith. In the Qur'an it is explained that what is in the heavens and the earth
belongs to God and man is only a caliph on earth. It is stated in the word of Allah
QS. Al-Baqarah 284:
َّ ‫ض ۗ َوإِ ْن ت ُ ْبد ُوا َما فِي أ َ ْنفُ ِس ُك ْم أ َ ْو ت ُ ْخفُوهُ يُ َحا ِس ْب ُك ْم بِ ِه‬
‫َّللاُ ۖ فَ َي ْغ ِف ُر ِل َم ْن‬ ِ ‫ت َو َما فِي ْاْل َ ْر‬ َّ ‫ِ َّّلِلِ َما فِي ال‬
ِ ‫س َم َاوا‬
َ ‫َّللاُ َعلَ ٰى ُك ِل‬
‫ش ْيءٍ قَدِير‬ َّ ‫يَشَا ُء َويُعَذِبُ َم ْن يَشَا ُء ۗ َو‬
"To Allah belongs all that is in the heavens and the things of the earth.
And if you bear what is in your heart or you conceal it, Allah will make
calculations with you about your deeds. So God forgives whom He will and
tortures whom He will; and Allah Almighty over all things ".
The ownership in the light of historical and judicial evidence of Islam has
been recognized and based on a necessary condition os such lawful enterprise and
the provit motive, which may be limited if public interest is injured. As has been
mentioned above, man is not the absolute owner of land but only an agent of
Allah. Man’s right to handle his land is dependent upon the rights and interests of
other members of the society. In the circumstances of the modern world, where
large scale business has become common, Islam has condemned unfair dealings
such us monopoly and riba, hoarding and price hike in its desire to establish social
and economic justice and to advocate the elimination of all forms of exploitation
of one individual or group or another.5

B. The Causes of Possession

Property rights can be obtained through the following causes:
1. Ihrazul Mubahat (the acquisition of free property)

4
Ismail Nawawi, Fikih Muamalah Klasik dan Kontemporer: Hukum Perjanjian, Ekonomi, Bisnis,
dan Sosial, 57.
5
Razali Hj Nawawi, Islamic Law on Commercial Transaction, (Kuala Lumpur: CERT
Publications Sdn.Bhd., 2009), 29.

3
 Al Mubahat is a property that is not included in a protected property
(controlled by others) and there is no legal prohibition to own it (mani 'asy-
syar'iy)6. So ihrazul mubahat is a way of ownership through the control of
property that has not been mastered or owned by others. Treasures almubahat
example dead land, fish in the sea, animals and trees in the forest. Everyone
has the right to own and control the property based on their respective
capabilities. Based on the above description of ownership by way of ihrazul
mubahat can be done if it meets the following 2 conditions:
a) No other party precedes the conduct of ihrazul mubahat.
b) The possession of the property is intended to be owned not for others. So
the keyword ihrazul mubahat is a free asset for the purpose it belongs not
to other than that. Such mastery can be in the usual ways such as giving a
limit or a mark of ownership.

2. Tawallud min mamluk

Tawallud is something done from something else or in the rule is said:
"Every growth or anything that grows (emerging) from property belongs to
its owner".7
Tawallud min mamluk is everything that happens from objects that
have been owned, become the right for those who have the object. For
example, the sheep's wool belongs to the sheep owner. For the possession of
tawallud min mamluk is divided into two views (i'tibar), namely:
a) Given the presence and absence of endeavors to the results they have
(I'tibar wujud al-ikhtiyar wa 'adamihi fiha)
b) The view of its former (I'tibar atsariha). In terms of endeavor, because
makliyah (has) there are two kinds, namely ikhtiyariyah and jabariyah.
Because ikhtiyariyah is something that man has the right of effort in making it
happen.

6
Dimyauddin Djuwaini, Pengantar Fiqh Muamalah (Yogyakarta: Pustaka Pelajar, 2008), 34-35.
7
Muhammad Nadzir, Fiqih Muamalah Klasik, (Semarang: CV. Karya Abadi Jaya, 2015), 29.

4
 The causes of ikhtiyariyah are two, namely ihrajul mubahat and 'uqud,
while what is meant for jabariyyah is something that always has no endeavor in
making it happen. The causes of jabariyah there are two kinds, namely 'irts and
tawallud min mamluk.

3. Khalafiyah (Replacement)
Khalafiyah that took place someone or something new place in a long
place that eventually the various rights lost.
Khalafiyah there are two kinds, namely:
a) Khalafiyah syakhsi 'an syakhsi is the heir occupy the place of the
muwaris in possessing the treasures left by muwaris, the treasure left by
muwaris called tirkah.
b) Khalafiyah syai 'an syai'in is when someone harms another's property or
grabs someone else's goods and then damaged in his hands or lost, so the
price must be paid and the losses of the owner of the property is replaced.
Therefore Khalafiyah syai 'an syai'in is called tadhamin or ta'widh
(guarantee loss).8

4. Al Aqdu (Akad)
Akad is a relationship between ijab and qabul in accordance with the
syara 'provisions that give effect to the object of the contract. Akad is the
most powerful and widespread reason for possession in human life that
requires the distribution of wealth compared to other causes of ownership. In
terms of ownership is divided into two namely:
a) Uqud Jabbariyah (forced contract) carried out by the court authority
directly or through his legal counsel, such as coercion of selling property
to repay debt, the power of judges to sell treasure heap in the case of an
overview in the public interest.

8
Ismail Nawawi, Fikih Muamalah Klasik dan Kontemporer: Hukum Perjanjian, Ekonomi, Bisnis,
dan Sosial, 60.

5
 b) Tamlik jabbari (forcible possession) is divided into 2 namely:
1) Forced ownership of maal uqar (immovable property) to be sold. This
forced property rights in fiqih muamalah known syu'fah.
2) Forced ownership of the public interest as when there is a need for the
expansion of the mosque because it can no longer accommodate the
large number of jama'ah, the Shari'a allows for the forcible ownership of
land adjacent to the mosque even if the owner does not want to sell it.

C. Types of Possession
The classification of ownership discussed in fiqih muamalah broadly seen
from the elements of property and benefits. The various ownership is as follows:
1) Perfect ownership (milk tam), which is an ownership that includes objects and
benefits at once, meaning the form of objects (substances) and its usefulness can
be mastered. This ownership can be obtained in many ways, for example by
buying and selling.
2) Incomplete possession (milk naqishah), if a person has only one of these things,
has its usefulness (utility) alone without possessing the substance.9
The ownership of a treasure without benefit is to have his property without
benefit, as the car owner gives a will to someone else for a year. When the person
who entrusted the car died, then the car is physically owned his heir. During the
year of the testament the heir has no benefit to the car, while the person who is
given the will has only the benefit of the car, but does not own the object or car.
Milk naqish in the form of mastery of the substance of goods (objects) is called
milk raqabah, while milk naqish-naqish in the form of mastery of its use alone is
called the property benefits or use rights, by way of I'arah, waqaf, and washiyah.
Clearly, the classification of ownership is based on mahal (place), milk is
divided into three parts:
1) Milk 'ain or milk al-raqabah, which has all the objects, both fixed objects
(ghair manqul) as well as objects that can be moved (manqul).

9
Sohari Sahrani dan Ruf’ah Abdullah, Fikih Muamalah, (Bogor: Penerbit Ghalia Indonesia,
2011), 37.

6
2) Milk al-manfa'ah, that is, a person has only the benefits of an object, such as
borrowed-borrowed, wakaf, and others.
3) Milk al-dain, ownership due to debt, such as the amount of money lent to a
person or a substitute for the required object. Debt must be paid by the indebted
person.10

10
Ismail Nawawi, Fikih Muamalah Klasik dan Kontemporer: Hukum Perjanjian, Ekonomi, Bisnis,
dan Sosial, 60.

7
 CHAPTER III
CONCLUSION

A. Conclusion
1. Ownership according to fiqh ulama is a privilege of an object that prevents
others from acting on it and allows its ownership to transact directly on it as
long as there is no shari'ah obstacle.
2. The causes of possession are 4, namely :
a) Ihrazul Mubarat, namely the way of ownership through the control over
assets that have not been mastered or owned by others.
b) Tawallud min mamluk, ie everything that happens from things that have
been owned, becomes the right of those who own the object.
c) Khalafiyah, which took place a person or something new place in a long
place that eventually the various rights lost.
d) Akad is a relationship between the ijab with qabul in accordance with the
provisions of syara '.

3. Types of Possession are 2, namely :

a) Perfect ownership (milk tam), which is an ownership that includes both
objects and benefits.
b) Incomplete possession (milk naqishah), if a person has only one of these
things, has its usefulness (utility) alone without possessing the substance.

B. Suggestion
This is the paper that we can compile, we realize that there are still many
shortcomings. Therefore, the constructive criticism and suggestions from our
readers are very much expected.

8
 REFERENCES

Ash-Shiddieqy, Teungku Muhammad Hasbi. 2000. Pengantar Fiqh Muamalah.

Semarang: PT.Pustaka Rizki Putra
Djuwaini , Dimyauddin. 2008. Pengantar Fiqh Muamalah. Yogyakarta: Pustaka
Pelajar
Nadzir, Muhammad. 2015. Fiqih Muamalah Klasik. Semarang: CV. Karya Abadi
Jaya
Nawawi, Razali Hj. 2009. Islamic Law on Commercial Transaction. Kuala
Lumpur: CERT Publications Sdn.Bhd
Nawawi, Ismail. 2012. Fikih Muamalah Klasik dan Kontemporer: Hukum
Perjanjian, Ekonomi, Bisnis, dan Sosial. Bogor: Penerbit Ghalia Indonesia
Sahrani, Sohari dan Ruf’ah Abdullah. 2011. Fikih Muamalah. Bogor: Penerbit
Ghalia Indonesia