Introduction: How to interpret the contract of the transfer with resumption (ferağ bi’l-vefa)?

By Fatma Gül Karagöz*

This is the first essay in a series of essays entitled “When usufruct became a credit source: The contract of the transfer with resumption (ferağ bi’l-vefa).”

In my essay series, I discuss the theory and practice of the ferağ bi’l-vefa (transfer with resumption) contract on the Ottoman miri (state-owned) land.[1] In 1858, together with the promulgation of the Ottoman Land Code (Kanunname-i Arazi), a regulation allowing the stipulation of the ferağ bi’l-vefa on the miri land was issued by the state to be applied within the empire. This contract was based on the conditional transfer of the land usufruct[2] to guarantee a debt. The “Regulation on the Transfer with Resumption of Miri Land for a Debt” (Arazi-i Emiriyyenin Deyne Mukabil Vefaen Ferağı Hakkında Nizamname) was incorporated into the Land Code with an amendment and structured in other regulations till the end of the 19th century.[3] Article 116 of the Land Code indirectly defined the contract by stating the stipulation method. It regulated that miri land and waqf (endowment) land could not be mortgaged. However, a debtor could transfer land that in his or her possession to a creditor through the contract of ferağ bi’l-vefa in exchange for the credit amount, on the condition that upon payment, the debtor had the right to redeem the transferred land, and the creditor, the obligation to return the land to the debtor.[4] This exchange was to be made with the approval of the state official. Thus, the debtor had the right of resumption on the transferred land.

The implementation of this contract on land usufruct was a substitute for the institution of pledge/mortgage, thus creating a source of credit for the cultivators.[5] Accordingly, some scholars have described the transformation of the Ottoman miri land system as a process of “privatization.”[6] While I distance myself from the “privatization” narrative, I understand and analyze the Land Code as another step that changed the normal operation of the miri land system, a process that began at the end of the 16th century with the transformation of the regulations on inheritance of miri land. The legal theory behind this system was refined in the 16th century with the regulations found in the Ottoman kanunname, the sultanic codifications and decrees, and the fatwās of the sheikhulislams—expert jurists in the Ottoman Empire with an official appointment as the equivalent of a grand muftī in many countries today—such as Ibn Kemal (d. 940/1534) and Ebussuud Efendi (d. 982/1574). The miri system was originally instituted by the state on the arable lands used for crop production, by making the contracts such as those of sale, pledge, as well as donation agreements, invalid for the peasant-cultivators, who only had usufruct rights to land.

By the beginning of the late 16th century, miri land regulations were subject to change due to socio-economic problems that had an impact on land production. In my opinion, the contract of ferağ bi’l-vefa (transfer with resumption) was one of the most noteworthy results of this transformation that expanded the rights of the peasant-cultivators who were originally usufruct owners. As Martha Mundy, Richard Saumarez Smith, and more recently, Malissa Taylor have all demonstrated, there was a considerable transformation in Ottoman legal theory since the 17th century regarding the rights of peasant-cultivators vis-à-vis the arable land over which they enjoyed usufructuary rights.[7] In fact, before its incorporation into land law, ferağ bi’l-vefa was originally devised as a general contract for the usufruct owners of immovable property: it was used for waqf properties with ijareteyn (double rent), that is, waqf property loaned out with advance and long-term payment. I will not focus on the application of ferağ bi’l-vefa on ijareteyn properties; however, it bears mention, as far as I can tell from qāḍī court records, that compared to miri land usufruct, ferağ bi’l-vefa was more widely applied to waqf property in Istanbul during the 18th century. Still, these court records include some examples of ferağ bi’l-vefa on miri land even before the promulgation of the 1858 Land Code, a topic I will discuss further in my third essay.

The Land Code repeated and preserved the difference between miri land and private land. In that sense, Article 116 of the Code was not exceptional. However, the ferağ bi’l-vefa contract was a substantial expansion on usufruct rights. It gave usufruct owning peasant-cultivators a way to obtain credit or secure their debt by using their miri land possession, on which mortgage was rejected since miri land was not accepted as their private property. Aytekin interprets this expansion to be “a significant step towards commodification” of the land.[8] He focuses on the socio-economic aspects of the transformation rather than the impact of legal thinking and practice before the 19th century.[9] Mundy and Saumarez Smith describe these regulations as a final step that “completed the transformation of miri usufructuary right into an estate.”[10]

The ferağ bi’l-vefa included technical elements from rahn (mortgage), ferağ (transfer or cease of usufruct), and bey‘ bi’l-vefa (ensured sale, also known as bey‘u’l-emane or bey‘ bi’l-itaa). This last contract was based on the sale of a property for a limited period until the original purchase price was repaid to the buyer which allowed the original owner to reclaim the property. It was a type of sale applied since the 11th century and used as a substitute for the pawn contract. Another usage of bey‘ bi’l-vefa was its use as a  substitute for interest.[11] The foundation underlying  bey‘ bi’l-vefa  and ferağ bi’l-vefa is similar, but the contracting parties could only make stipulations of an ensured sale on private, not miri, property. In the 19th century, this type of contract was regulated under the sale (bey‘) chapter of Mecelle-i Ahkam-ı Adliye, the Ottoman Civil Code.[12] Ferağ bi’l-vefa, by contrast, allowed a similar arrangement, but on state-owned and therefore non-private miri land.

The legal scholars of the Ottoman Empire in the late 19th and early 20th centuries used the pre-existing institutions of the ensured sale and mortgage contracts to explain ferağ bi’l-vefa. For example, in his commentary on land law (Külliyat-ı Şerh-i Kanun-ı Arazi), Halis Eşref (d. unknown) emphasized that mortgage was not allowed on the miri lands that were not private property but merely lands in the possession of peasant-cultivators based on the tenancy.[13] Like Halis Eşref, Ali Haydar Efendi (d. 1935) emphasized in his commentary on the Mecelle (Dürerü’l-Hükkâm Şerhü Mecelleti’l-Ahkâm) and in his commentary on land law (Şerh-i Cedid li Kanun-ı Arazi) that mortgage should be rejected on miri land: “[A]ccording to Article 701 of the Mecelle, mortgage means to detain and to institute [mahbus ve mevkuf] a property, based on a right that allows usage. Whereas miri land is not the property of the usufruct owner.”[14]  Likewise in Dürerul-Hukkam he stated: “the [usage of the] word property points out that the mortgage of endowment and miri land is not allowed.”[15]

Despite their faithfulness to the spirit of the 1858 Land Code, both scholars recognized the connection between ferağ bi’l-vefa and mortgage. They both emphasized that “ferağ bi’l-vefa has a sense of mortgage.”[16] Halis Eşref specifically stated that the prohibition of mortgage on miri land created a kind of burden on and “complicated the [fulfillment of] public needs” (ihtiyac-ı umumiyeye tazyik ideceğinden).[17] Halis Eşref stated that this difficulty was solved by permitting ferağ bi’l-vefa contracts.[18] The reason was simple: in a period when agricultural production became increasingly commercialized, a peasant-cultivator, or an investor, needed a source of credit. The 19th-century land reforms must be understood within this political context. Ferağ bi’l-vefa offered peasant-cultivators a pathway forward by allowing them to transfer their usufructuary rights on miri land to creditors in exchange for credit. One important nuance distinguishing ferağ bi’l-vefa from ensured sale (bey‘ bi’l-vefa) was connected to the loss of the property in question. As Halis Eşref explained, the debt continued in ferağ bi’l-vefa because “the . . . regulations on perishable property (emval-i sarfa) cannot be applied on miri lands or endowment lands that are comparable to leased property.”[19] As for Ali Haydar Efendi, he concluded: “Because miri land is not [the peasant-cultivator’s private] property, the waste of the land is not accepted as a forgiveness of the debt.”[20]

Another essential difference between the two contracts was that in ferağ bi’l-vefa a share of the miri land could be the subject of the contract.  This was not allowed in the ensured sale contract.[21] The Ḥanafī school seems to reject the mortgage of the shared property.[22]

A third difference was the impact of sahib-i arz, the administrator of the land, who was a member of the military class—for example, a sipahi before the 17th century.[23] With the reforms of the 19th century, regularly paid functionaries appointed by the state were instituted. Ali Haydar used the term “sahib-i arz[24] for these state functionaries of the reform period and emphasized their role on the transfer. The permission of sahib-i arz was to be recorded in the title deed. This official permission was required because ferağ bi’l-vefa (transfer with resumption) was a special kind (as such, can be thought as a “subchapter”) of ferağ (to cease, transfer).  This latter contract was a substitute for land sale, which similarly required official permission. When the usufruct of a miri land or a waqf property used by double rent (ijareteyn) was transferred by ferağ, the usufruct owner needed to obtain the permission of the sahib-i arz for miri land or mutawalli, the overseer of the endowment.[25]

In a way, with their interpretations, Halis Eşref and Ali Haydar combined elements from mortgage (rahn) and cession (ferağ) to explain and justify the ferağ bi’l-vefa contract. While they used the language of the 1858 Code that prevented the mortgage on usufruct rights, they also accepted that mortgage and transfer with resumption had a similar meaning. They generally referred to the codifications of the 19th century in their comments. Behind this choice, there was a motivation. Halis Eşref wrote that “the transfer with resumption of miri land and waqf land are not from shariat-based regulations (bi’l-farz hükm-i şeri icabından olmayub) but from codification….”[26] The same qualification is also found in the commentaries of Ali Haydar, who wrote that “the permission of the mortgage on miri land . . . is not only based on shariat regulations (sırf hükm-i şeri icabatından olmayub) but also come from the regulations of kanun (codification).”[27]

I find these arguments most interesting firstly because, as I will demonstrate in the next essay, before the 19th century, the regulations of ferağ bi’l-vefa could be found mainly in fatwā collections rather than sultanic codifications. Secondly, the authors do not give a reference to or mention any previous codes or sultanic decrees in their interpretation of ferağ bi’l-vefa. This is in stark contrast to Ali Haydar’s commentary on the Mecelle where he provides many such references to support prominent examples of Ḥanafī legal interpretation.[28] While the Ottoman state administration played an important role in shaping the land and taxation system with kanunnames and decrees before the modernization period, Ali Haydar and Halis Eşref did not use these texts as a reference. Mundy and Saumarez Smith previously explained how the Land Code of 1858 “breaks with earlier law . . . makes no reference to earlier laws or sultanic proclamations, summarizing all provisions within its bounds.”[29] This might be a reason why both of the Ottoman jurists discussed here do not refer either to past regulations in Ottoman kanuns or the works of muftīs concerning ferağ bi’l-vefa. Their main reference seems to be the then-new Ottoman Land Code of 1858.

In this essay, I covered some of the technical aspects of ferağ bi’l-vefa that might affect the validity of the contract. For example, a person could object to the validity of this contract by pointing out the absence of official permission by the state functionaries. That being said, we still need more research on the application of the ferağ bi’l-vefa contract, and its impact on the land, property, and agrarian relations, especially from the perspective of the cultivator. The practical operation of the ferağ bi’l-vefa contract after the promulgation of the 1858 Land Code and its amendments is yet to be studied in depth.

Glossary of terms:

Bey‘ bi’l-vefa: Ensured sale, when a creditor sold the property in his/her ownership to a debtor as a guarantee for a debt with the condition of redeeming the property once the debt was paid.

Ferağ: Cessation, giving up something (e.g., a right) in exchange for money or without any payment. In the Ottoman land law context, it was a term used for the “sale” of usufruct rights on miri lands.

Ferağ bi’l-vefa: The transfer with resumption, used as a substitute for mortgage on the usufruct rights. A debtor could transfer land in his or her possession to a creditor through the contract of ferağ bi’l-vefa in exchange for the credit amount, on the condition that upon payment, the debtor had the right to redeem the transferred land, and the creditor, the obligation to return the land to the debtor.

Ijareteyn: Double rent, in this context, waqf property loaned out with advance and long-term payment.

Kanunname: Sultanic codifications in the Ottoman Empire.

Miri land: State-owned land in the Ottoman context. The right to use state-owned lands belonged to the peasants in exchange for tax payment. This tax was collected by the sahib-i arz (see below).

Rahn (rehin): Mortgage.

Sahib-i arz: Administrator of the land, responsible for tax collection. Before the 17th century, they were mainly members of the military group. After this period, local elites obtained this position and duty via tax-farming gained by auction. In the 19th-century reforms, the administration appointed regularly paid state officials as sahib-i arz.

Usufruct: The right to use and enjoyment of another’s (in this case, the state’s) property and its profits.

Waqf land: The lands or land revenues given to endowments.

Notes:

* Dr. Fatma Gül Karagöz is a Fulbright postdoctoral fellow at the Program in Islamic Law for 2023–2024. She is an assistant professor at Galatasaray University, Istanbul.

[1] The right to use of the state-owned lands belonged to the peasants who were in the status of “tenant.” This tenancy was intertwined with their taxpaying duties.

[2] The right to use and enjoyment of another’s (in this case state’s) property and its profits.

[3]  E. Attila Aytekin, “Agrarian Relations, Property and Law: An Analysis of the Land Code of 1858 in the Ottoman Empire,” Middle Eastern Studies 45, no. 6 (2009): 939.

[4] Tanzimat Sonrası Arazi ve Tapu (Başbakanlık Osmanlı Arşivi Yayınları: İstanbul, 2014), 126.

[5] Mehmet Akif Aydın, “Arazi Kanunnâmesi,” Türk Diyanet Vakfı İslam Ansiklopedisi (TDV İA), vol. 3, 1991, 347; E. Attila Aytekin, “Cultivators, Creditors and the State: Rural Indebtedness in the Nineteenth Century Ottoman Empire,” Journal of Peasant Studies 35, no. 2 (2008): 292–313.

[6] For different approaches to the Land Code, see Aytekin, “Agrarian Relations.”

[7] Martha Mundy and Richard Saumarez Smith, Governing property, making the modern state: law, administration, and production in Ottoman Syria (Bloomsbury Publishing, 2007); Malissa Taylor, Land and Legal Texts in the Early Modern Ottoman Empire (Bloomsbury, 2023).

[8] Aytekin, “Agrarian Relations,” 939.

[9] Ibid., 936.

[10] Mundy and Saumarez Smith, Governing property, 48.

[11] Abdülaziz Bayındır, “Bey bi’l-vefa,” TDV İA, vol. 6, 1992, 20.

[12] Recently, more scholars seem to be interested in the contract of ensured sale, with studies focusing on its role in waqf management and Islamic finances. Some of these studies have a subchapter for ferağ bi’l-vefa. For a couple of examples, see Ahmet Harun Bilge, “Bey bi’l-vefa ve Osmanlı Uygulamasındaki Yeri,” (MA thesis, Istanbul University, 2020); Süleyman Kaya, “Para Vakıflarının Nakit İşletme Yöntemleri,” in Vakıf, Hukuk ve Toplum, ed. Merve Akkuş Güvendi (İLEM, 2013), 26–37; Süleyman Kaya, Muhammed Emin Durmuş, İsmail Bektaş, and Arif Akkaya, “Muhasebe Kayıtları Işığında 18. Yüzyıl Para Vakıflarının Nakit İşletme Yöntemleri,” International Journal of Islamic Economics and Finance Studies (IJISEF) 3, no. 3 (2017): 50 –62; Abdullah Musab Şahin, Mecelle’de Vefaen Satış Sözleşmesi (Istanbul: On İki Levha Yayınevi, 2019); Kamil Yelek, “Bir Finansman Yöntemi Olarak Kullanılan Bey‘ bi’l-vefânın İslam Hukuku Açısından Değerlendirilmesi,” İslam Hukuku Araştırmaları Dergisi, 27 (2016): 257–86.

[13] Halis Eşref, Külliyat-i Şerh-i Kanun-ı Arazi (İstanbul: Kütüphane-yi Cihan, 1897), 655.

[14] Ali Haydar Efendi, Şerh-i Cedid li Kanun-ı Arazi, (İstanbul: A. Asaduryan Şirket-i Mürettibiye Matbaası, 1903/1904), 504.

[15] Ali Haydar Efendi, Dürerü’l-Hükkâm Şerhü Mecelleti’l-Ahkâm, v. 2, 3rd ed. (İstanbul: Matbaa-yı Ebuzziya, 1911/12), 214.

[16] Halis Eşref, Külliyat-i Şerh-i Kanun-ı Arazi, 657; Ali Haydar Efendi, Şerh-i Cedid li Kanun-ı Arazi, 504.

[17] Halis Eşref, Külliyat-i Şerh-i Kanun-ı Arazi, 655.

[18] Ibid., 655.

[19] Ibid, 661.

[20] Ali Haydar Efendi, Şerh-i Cedid li Kanun-ı Arazi, 509–10.

[21]  Halis Eşref, Külliyat-i Şerh-i Kanun-ı Arazi, 656; Ali Haydar Efendi, Şerh-i Cedid li Kanun-ı Arazi, 506.

[22] Halit Çalış and Hasan Hacak, “Rehin,” TDV İA, vol. 34, 2007, 539.

[23] This system gradually transformed into tax-farming due to political, social, and economic problems that began in the late 16th century.

[24] Ali Haydar Efendi, Şerh-i Cedid li Kanun-ı Arazi, 504.

[25] The endowments were trusted to a mutawalli or a group of mutawallis, whose main duty was to administer the endowment properties and use them accordingly. They had the responsibility to collect the rent from ijareteyn and use this money.

[26] Halis Eşref, Külliyat-i Şerh-i Kanun-ı Arazi, 664.

[27] Ali Haydar Efendi, Şerh-i Cedid li Kanun-ı Arazi, 511.

[28] Ahmet Akgündüz, “Dürerü’l-Hükkam,” TDV İA, vol. 35, 1994, 28–29.

[29] Mundy and Saumarez Smith, Governing property, 45.

(Suggested Bluebook citation: Fatma Gül Karagöz, Introduction: How to interpret the contract of the transfer with resumption (ferağ bi’l-vefa)?, Islamic Law Blog (June 6, 2024), https://islamiclaw.blog/2024/06/06/introduction-how-to-interpret-the-contract-of-the-transfer-with-resumption-ferag-bil-vefa/)

(Suggested Chicago citation: Fatma Gül Karagöz, “Introduction: How to interpret the contract of the transfer with resumption (ferağ bi’l-vefa)?,” Islamic Law Blog, June 6, 2024, https://islamiclaw.blog/2024/06/06/introduction-how-to-interpret-the-contract-of-the-transfer-with-resumption-ferag-bil-vefa/)

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