By Fatma Gül Karagöz*
This is the second essay in a series of essays entitled "When usufruct became a credit source: The contract of the transfer with resumption (ferağ bi'l-vefa)."
As I noted in my first essay, in recent publications, the 1858 Ottoman Land Code is considered a continuation of the Ottoman kanunnames, the sultanic codes, as well as a continuation of decrees from previous centuries. In those earlier periods of the empire, the kanunname was at the heart of the Ottoman land system and taxation. However, the regulations on ferağ bi'l-vefa (the transfer or cessation of the usage rights of an immovable for a limited period, in exchange for a debt or as a guarantee of a debt) and the debates about mortgage contracts appeared in the fatwā collections rather than promulgated decrees or kanunnames. In this essay, I concentrate on examples from fatwā collections from the Ottoman Empire before the age of modernization to identify the roots of the regulations on ferağ bi'l-vefa.
In the 16th-century Ottoman Empire, two principal authorities on law, and two prominent sheikhulislams (grand muftī), Ibn Kemal (d. H. 940/1534) and especially Ebussuud (d. H. 982/1574) accepted that the miri land (state-owned land, whose usage rights were given to peasant-cultivators in exchange for tax-payment, intertwined with the concept of tenancy) could be transferred by ferağ (cessation), provided it was done with the permission of the administrator of the land. Nevertheless, these two jurists rejected the validity of mortgages on miri land. This rejection continued to some extent into the 17th century. No fatwā that allowed mortgage or ferağ bi'l-vefa on land usufruct (the right to use and enjoyment of another's—in this case, the state's—property and its profits) was included in the Kanunname-i Cedid (The New Code), an anonymous manuscript that collects regulations and fatwās on miri land and taxation. This fatwā and decree compilation served as a kind of a reference book for land usufruct that was copied frequently during the 18th and early 19th centuries.[1]
However, there were reference books and fatwā collections that included completely different opinions than those in the Kanunname-i Cedid. This essay discusses these different opinions.
Let me begin with the examples that rejected the institution of debt guarantee upon the usufruct rights on miri land. Like Ebussuud, Sheikhulislam Mehmed Bahai (d. H. 1064/1654) denied the validity of any type of mortgage, including ferağ bi'l-vefa or tefviz bi'l-vefa on miri land. The contract (and the term) of tefviz was sometimes used for obtaining the usufruct of a land from the sahib-i arz (administrator of the land) for a payment of title deed fee, but it was also used interchangeably with ferağ, meaning cessation. As such, tefviz bi'l-vefa and ferağ bi'l-vefa were more or less the same contract. Consider the following fatwā attested to Mehmed Bahai:
"Zeyd ceases and transfers some fields in his usufruct to Amr for an amount of money with the permission of the administrator of land by tefviz bi'l-vefa. When Zeyd pays the same amount to Amr, is he able to take back the lands? The answer: No [he isn't]. Written by Mehmed Bahai."[2]
In this fatwā, the contract had all the elements of validity that would be required in the 19th-century Ottoman land law with one exception: in the 19th century, the new bureaucratic order introduced an official recording system to keep track of transactions on miri land. In Mehmed Bahai's fatwā, the usufruct was transferred by tefviz bi'l-vefa and the administrator of the land allowed this transfer, without any official record (which was not required at the time of the fatwā). However, Mehmed Bahai rejected this kind of cessation, ruling that cessation needed to be definite and irrevocable: once the usufruct was transferred, it could not be redeemed. Likewise, he rejected conditional cessation:
"Zeyd transferred the field in his usufruct to Amr by title deed with the permission of the administrator of the land, on the condition that Amr will take care of Zeyd till his death. While Amr is still taking care of Zeyd, [Zeyd] regrets his transfer. Is he able to take the land back from Amr? The answer: This type of cessation is not valid [sıhhatı yokdur]. Written by Mehmed Bahai."[3]
This kind of conditional cessation whose validity depended on the transferee taking care or the transferor or the transferee having good relations with someone was also rejected in the Ottoman Land Code of 1858, in article 114 (muteber değildir). The Code provided that these types of motivations were illegitimate according to sharī'a (şer'an müfsid).[4] As such, this rejection seems to be based on a moral principle rather than the status of the rights on miri land.
Bahai also rejected mortgage on miri land usufruct:
"The question: Zeyd traveled to another land and he trusted the field in his usufruct to his mother Hind. Hind mortgaged this field for an amount of money to Amr in exchange for her debt to Amr. Is this mortgage valid? The answer: No. Written by Mehmed Bahai."[5]
This fatwā is different than the others. First, the land was entrusted to the mother, Hind, by her son. But she owned neither the property nor the usufruct. As such, she had no right to transfer the land. The verb used in the fatwā is ısmarlamak which means that Zeyd only gave to his mother the responsibility of taking care of the land and maybe paying the taxes, but he did not appoint her as a proxy. Hence, the rejection of the contract in this fatwā could be due to the fact that Hind was not authorized to make the transfer rather than the per se validity of mortgage or transfer with resumption on miri land.
While the anonymous collector of the Kanunname-i Cedid seems to have preferred Mehmed Bahai's inclination to reject mortgage on miri land, there were different views on this issue. Bünyamin Punar has found some interesting examples from the fatwā collections of Sheikhulislam Esad Efendi (d. H. 1034/1625):
"Zeyd gives the lands under his usufruct to Amr with the purpose of creating a mortgage in return for some money. After five years, Zeyd dies without a child. Can the administrator of land take these lands from Amr and give it [to another person] with [the payment of] title deed [fee]? The answer: If he [i.e., Zeyd] did it without the permission of the administrator of the land, he [i.e., the administrator] can."[6]
According to miri land regulations, when a peasant died without issue, the land usufruct could be given by the administrator of the land to another peasant-cultivator who volunteered. However, if the transfer between Zeyd and Amr was valid, the administrator could not interfere. In this fatwā, Esad Efendi did not use the terms ferağ or tefviz. But he described the contract with the words "to give with the purpose of creating a mortgage" (rehn namına Amr'a virse). Of course, had we replaced rehn (mortgage) with tefviz bi'l-vefa, the answer would not have changed, since in the answer section, Esad Efendi underlined the absence of the administrator's permission as the reason for invalidity.[7] Additionally, we can assume Esad Efendi's fatwā as suggesting that to use the rights on miri land "for the purpose of mortgage" is valid, if this administrator's permission is taken. The contract described in the fatwā can be interpreted as a kind of tefviz bi'l-vefa or ferağ bi'l-vefa, since Esad Efendi included the permission from the administrator as a requirement for a valid contract, which, at the time, was not an element of a mortgage contract. Likewise, in another fatwā, Esad Efendi used the term tefviz bi'l-vefa to describe the same contract:
"Zeyd ceases, by the permission of the administrator of the land through tefviz bi'l-vefa, one of the lands in his usufruct to Amr for an amount of money. He [Zeyd] then dies and the lands need to be given to [a third person by the payment of] tapu [title deed fee]. Can the administrator of the land take the land given to Amr for the purpose of mortgage with its tapu? Answer: . . . he cannot."[8]
In this fatwā, Esad Efendi ruled that the transfer to Amr was valid, and the administrator could not take the land in question by tapu. This was probably so due to a limitation on the administrator of the land: he had to distribute miri lands under his responsibility to peasant-cultivators. He could not, however, claim the lands for himself. Another complementary fatwā was issued in this matter that rendered the resumption clause valid:
"In the aforementioned case, will Amr be able to avoid receiving the mentioned [indebted] sum but [instead] take the land with its tapu from the hands of the Zeyd's inheritors? The answer: He cannot."[9]
In these fatwās Esad Efendi used two different terms for the same contract; that is, the use of "rehn namına . . . virse" ("to give with the purpose of creating a mortgage") one the one hand, and the use of "tefviz bi'l-vefa" ("transfer with resumption"), on the other. However, both of his rulings could be interpreted as an indirect permission on the usage of miri land usufruct as a guarantee of debt. As Punar noted, Esad Efendi indirectly ruled that the transfer with resumption should be interpreted as a kind of mortgage rather than a definite and final transfer.[10] As such, in the second fatwā, Amr (the creditor) should demand repayment on the debt that he lent to Zeyd from Zeyd's inheritors. However, Amr could not demand the land usufruct by (most probably) stating that the transfer was irrevocable. Instead, he had to ask for the payment of the debt.
Another equally important compilation of Ottoman land and waqf law was Camiu'l-İcareteyn published in 1837. It also included fatwās from earlier periods brought together by Sheikhulislam Meşrebzade Mehmed Arif Efendi (d. 1858). This compilation focused mostly on the fatwās about ijareteyn (double rent, in this context, waqf property loaned out with advance and long-term payment) but also comprised a significant number of fatwās on land usufruct. It represented the contrasting ideas concerning the validity of ijareteyn[11] and tefviz bi'l-vefa on miri land. My first example from this compilation is a fatwā attributed to Zekeriyazade Yahya Efendi (d. H. 1053/1644):
"Zeyd ceased the lands in his usufruct to Amr for an amount of money with the permission of the administrator of the land on the condition that Zeyd would take back the lands whenever he paid the money back, and Amr accepted it. When Zeyd pays Amr the money, is he able to take back the land? The answer: No. (Zekeriyazade Yahya Efendi)."[12]
In this fatwā, Yahya Efendi rejected the tefviz bi'l-vefa like Mehmed Bahai, however he did not use the words tefviz bi'l-vefa but rather described the same contract using other words.
In another fatwā attributed to Zekeriyazade in Camiu'l-İcareteyn, we are given an answer that could be interpreted differently:
"In a land, Muslims are using farms that were given to them since the times of conquest to Muslims. They are using these farms and in exchange for the usufruct [rights], they are participating in the sultan's military campaign. Their status is recorded in the provincial register. Zeyd, who has the usufruct of such a farm, ceased some part of the farm to Amr in exchange for the money he took from Amr for his [Zeyd's] potential shortage during the campaign. When Zeyd returns, can he pay the money to Amr and take the land back? The answer: He can. (Zekeriyazade Yahya Efendi)."[13]
Unlike the previous fatwās, this fatwā did not mention the role of the administrator of the land, but the land was given by tefviz in exchange for money. The absence of the administrator might be the reason that made the contract invalid and allowed Zeyd the possibility to take the land back. However, Yahya Efendi did not explain if Zeyd could demand the land back, claiming invalidity of transfer on the grounds that the land administrator's permission was lacking.
It also bears mention that this was a partial transfer: the fatwā mentioned "a part of the farm" (ol çiftliğin bir mikdarını).[14] A çiftlik (farm) could be used to denote different types of property. It was used to refer to land, or in some cases, to plantation-type units built on miri land. The buildings, trees, and animals on a miri land could be private property. As such, çiftlik was a kind of composite property, combining elements from state-owned property and private property. It could be therefore possible in such a combined type of property, to stipulate a mortgage on the buildings or trees. However, if Yahya Efendi's fatwā concerned only the private property over the miri land (and not the land itself), he would probably not have used tefviz or ferağ to describ the transfer Zeyd made to Amr. Or perhaps the case turned on the mention of the sultan's military campaign: it was perhaps because of the mention of a military campaign that Zeyd was allowed to reclaim the land upon payment to Amr. In this sense, perhaps this fatwā represented a proto "public need" approach as seen in the commentary of Halis Eşref[15] in the 19th century. I don't want to over-interpret the meaning of this fatwā, but the absence of any mention of the land administrator or his permission ("by the permission of sahib-i arz") raises all these possibilities.
All the muftīs whose opinions I have discussed in this essay were sheikhulislams. As such, they represented the policy views on property adopted by the central administration. During the 17th century, the central administration seemed to reject the establishment of a debt guarantee on the land usufruct. This would change in the 18th century. In Camiu'l-İcareteyn (1837), it is also possible to observe fatwā examples from the 18th century that allowed the usage of miri land as a credit method. I will discuss some of these examples in my last essay. In a way, Meşrebzade Mehmed Arif, the compiler of Camiu'l-İcareteyn, chose to include examples from both sides: both those that prohibited mortgage on land usufruct and those that allowed it. He probably represented the Ottoman officialdom's policy on property in the mid-19th century, when the ferağ bi'l-vefa of land usufruct had become a fact and necessity. In the next essay, I will discuss the meaning of tefviz bi'l-vefa cases in the 17th-century Istanbul court records as a part of this transformation and a few examples from practice that allowed the practice of tefviz bi'l-vefa during the late 17th and 18th centuries.
Glossary of terms:
Ferağ: cessation, giving up something (e.g., a right) in exchange of money or without any payment. In the Ottoman land law context, it was a terminology used for the "sale" of usufruct rights on miri lands (defined below).
Ferağ bi'l-vefa: The transfer with resumption, used as a substitute of mortgage on the usufruct rights. 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.
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 of the state-owned lands belonged to the peasants in exchange of tax payment. This tax was collected by the sahib-i arz (defined below). Since these lands were not private property of the peasants, they could not be sold, mortgaged, donated by them and their inheritance was submitted to specific rules.
Rahn (rehin): mortgage.
Sahib-i arz: Administrator of the land, responsible of the tax collection. Before the 17th century, they were mainly members of military group. After this period, local elite 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.
Sheikhulislam: Expert jurists in the Ottoman Empire with an official appointment as the equivalent of a grand muftī in many countries today.
Tefviz: Tefviz was generally used for obtaining the rights of usufruct on the miri land from the administrator of the land for a payment of title deed fee, but it is also used in Ottoman qāḍī court records and fatwās interchangeably with ferağ (cessation).
Tefviz bi'l-vefa: See ferağ bi'l-vefa (defined above).
Usufruct: The right to use and enjoyment of another's (in this case state's) property and its profits.
Waqf land: The lands or land revenues given to endowments.
Notes:
[1] Fatma Gül Karagöz, "The Evolution of Kanunname Writing in the 16th and 17th Century-Ottoman Empire: A Comparison of Kanun-i Osmânî of Bayezid II and of Kanunname-i Cedid" (MA thesis, Bilkent University, 2010), 113–21; Malissa Taylor, Land and Legal Texts in the Early Modern Ottoman Empire (Bloomsbury, 2023).
[2] Kanunname-i Cedid, Süleymaniye Library, Esad Efendi 854-1, vr. 41/2.
[3] Ibid., 41/2–42/1.
[4] Tanzimat Sonrası Arazi ve Tapu (Başbakanlık Osmanlı Arşivi Yayınları: Istanbul, 2014), 125.
[5] Kanunname-i Cedid, vr. 41/2.
[6] Bünyamin Punar, "Kanun and Sharia: Ottoman Land Law in Şeyhülislam Fatwās from Kanunname of Budin to the Kanunname-i Cedid" (MA thesis, Istanbul Şehir University, 2015), 88. The author gives the translation of the fatwā in the text and its transliteration in footnotes. Here, I made some changes in the translation.
[7] Ibid., 88.
[8] Ibid., 88–89. I made some changes in the translation.
[9] Ibid., 89. I made some changes in the translation.
[10] Ibid., 89.
[11] Camiu'l-İcareteyn, Şeyhülislam Meşrebzade Mehmed Arif Efendi, eds. Süleyman Kaya et all, (Klasik Yayınları: Istanbul, 2019), 13–14
[12] Ibid., 245.
[13] Ibid., 245–46.
[14] Ibid., 246.
[15] See the first essay in this series: 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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