Question:

’More than 20 years ago my sister paid my school for 4 years and I understood from my mother that was not a loan but rather a Jamil but she passed away and I understood my sister think about it as loan I m far away and need to clear my debt off its the case? Thank you

Answer:

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

At the outset, we do not know the term “Jamil” in this connotation. Contextually it seems that you refer to this financial assistance being a sadaqa, gift, or financial assistance without any expectation of return. Our answer is based on this interpretation.

In the scenario you have mentioned we understand that both parties are in conformity that the tuition fee was covered by the sister. This means that both parties agree that the financial aid was given. The only doubt or contention thereafter is whether this assistance was by way of a loan or by way of sadaqah [i.e. no expectation of return].

We also realize that in between yourself and your sister, the only individual who could give an independent clarification was your mother who has passed away. May Allah accept her in Jannah, Ameen.

There are two ways to address the contention. 

1. This could be taken as a matter of confrontational financial case, where your sister’s claim is “The financial assistance was a loan” and your response to it is a negation of that claim. In a legal setup, your sister will become the plaintiff and you will be the defendant.  The Shar’i maxim states that “The onus of proof is the responsibility of the plaintiff (claimant), while the defendant must take an oath.”

If your sister has proof of it being a loan, then the Islamic court would rule in her favor, and the loan would be established upon you. However, in the absence of that proof you would need to make a Shar’i oath that the assistance indeed was as per your honest knowledge a sadaqah and not a loan. In this latter case, Shari’ah will regard this assistance as a sadaqah and nothing would be liable upon you.

2. The scenario in “a” is obviously confrontational and argumentative. It may lead to differences between two sisters and relationships may get hurt. Hence, the other way to approach this situation is with the hope and desire to make the relationship as loving as possible while relieving oneself of any potential duties from oneself.

If you have the financial means to give the money to your sister, then it is best for you to give her the amount. This is regardless of whether you feel it was a loan or a sadaqah. Since you do appreciate her enough to recognize that her assistance aided you in your schooling, it makes sense that you reciprocate her care for you.

And if she feels that it was a loan, then there is more reason for you to fulfill her wishes and acknowledge it. While you do this, inform her of your gratitude for her help. Even if you are unable to financially pay her back, acknowledging her favor towards you and then requesting an amicable reconciliation to be paid over installments may be the best way to secure a good family relation while returning the favors owed. This is a path of Sulh (reconciliation), and Allah says, “…and Sulh is best”.

And Allah Ta’āla Knows Best

Mufti Faisal bin Abdul Hameed al-Mahmudi

[i]

{وَالصُّلْحُ خَيْرٌ} [النساء: 128]

مرقاة المفاتيح شرح مشكاة المصابيح (6/ 2439)
3758 – عن ابن عباس رضي الله عنهما، عن النبي – صلى الله عليه وسلم -، قال: ” «لو يعطى الناس بدعواهم، لادعى ناس دماء رجال وأموالهم، ولكن اليمين على المدعى عليه» “. رواه مسلم. وفي شرحه للنووي أنه قال: وجاء في رواية البيهقي بإسناد حسن، أو صحيح، زيادة عن ابن عباس مرفوعا: ” «لكن البينة على المدعي واليمين على من أنكر» ”
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(لكن البينة) : بالوجهين (على المدعي) : في المغرب: البينة الحجة فيعلة من البينونة، أو البيان (واليمين) : بالوجهين (على من أنكر) : قال النووي: هذا الحديث قاعدة شريفة كلية من قواعد أحكام الشرع، ففيه أنه لا يقبل قول الإنسان فيما يدعيه بمجرد دعواه، بل يحتاج إلى بينة، أو تصديق المدعى عليه، فإن طلب يمين المدعى عليه فله ذلك، وقد بين – صلى الله عليه وسلم – الحكمة في كونه لا يعطى بمجرد دعواه أنه لو أعطي بمجردها لادعى قوم دماء قوم وأموالهم واستبيح، ولا يتمكن المدعى عليه من صون ماله ودمه