By Fatma Gül Karagöz
This is the fourth 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 second essay,[1] I used Ottoman fatwās from the 17th century that reflected different points of view on the validity of using the rights on miri land as a source of credit in Ottoman legal theory. Miri land was state-owned land, whose usage rights were given to peasant-cultivators in exchange for tax-payment, intertwined with the concept of tenancy. The peasants had limited usufruct rights on the miri lands, which included usage and obtaining some profit. Since their rights were limited, they could not sell the land itself but they could "sell" the usufruct by the contract of ferağ, that is, the cessation or transfer of usage rights by the permission of sahib-i arz (administrator of the land). Likewise, the peasants could not donate the land or stipulate a mortgage contract upon the land.
The regulation of mortgage seems to have been evaluated in different ways in 17th-century Ottoman legal theory. On one hand, Esad Efendi (d. H. 1034/1625) accepted mortgage on miri lands through tefviz bi'l-vefa or ferağ bi'l-vefa, that is, 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 on miri lands with the permission of the administrator of the land. On the other hand, Mehmed Bahai (d. H. 1064/1654) completely rejected this option. In the 18th century, the difference between the views of muftīs continued to some extent: Martha Mundy and Richard Saumaraz Smith have shown that in the early 18th century, Damascene al-Haik (d. H 1113-1114/1702) and Sheikhulislam Abdürrahim (d. H. 1128/1716) recognized mortgage on miri land. However, Mundy and Saumaraz Smith have also shown that later sheikhulislams such as Yenişehirli Abdullah Efendi (d. H. 1156/1743) preferred to reserve mortgages on private property and allow ensured cession on miri land.[2] Likewise, Malissa Taylor mentions the names of Abdürrahim Efendi and a local muftī, Ahmed el-Mostari (d. H. 1190/ 1776), as allowing mortgage on miri lands with the permission of the administrator of the land.[3]
Among these jurists, I want to focus on Abdürrahim Efendi. He seems to have recognized both mortgage and ferağ bi'l-vefa on miri land. I will discuss some fatwās attributed to him that appear in Camiu'l-İcatereyn, a fatwā collection published in 1837 compiled by Sheikhulislam (chief muftī in the Ottoman context) Meşrebzade Mehmed Arif Efendi (d. 1858). The first fatwā is as follows:
"Zeyd gives the land in his usufruct by title deed to Amr as mortgage (rehin tarikiyle) for a debt he took from Amr. After that, Amr dies. Can his inheritors give the land back to Zeyd and take the money? The answer: Yes. [Signed] Abdürrahim Efendi."[4]
In this fatwā, Abdürrahim Efendi did not mention the permission of the administrator of the land. However, he did not make any statement on the possibility of invalidity that could result from the absence of such permission. The same is the case in the following example:
"Zeyd gives the field in his usufruct to Amr with a mortgage (ala tariki'r-rehn) in exchange for 600 guruş (Ottoman currency). However, Amr used the land without the consent of Zeyd for a couple of years. Is Zeyd able to give the money to Amr, and after taking back his land, oblige Amr to redeem the revenue that he obtained by the land production? The answer: Yes. [Signed] Abdürrahim Efendi."[5]
Here, Abdürrahim Efendi repeated the main rule on mortgages: if the debtor did not permit the creditor, the latter did not have the right to use the property. Therefore, after the payment, the redemption was required.[6] Likewise, Abdürrahim Efendi did not declare the mortgage on miri land invalid.
Abdürrahim Efendi also issued fatwās that used the words ferağ bi'l-vefa and vefaen ferağ:
"Zeyd transfers the lands in his usufruct to Amr for the amount he took from him by the transfer with resumption (vefaen ferağ). After that, Zeyd's sister, by the order of Zeyd, pays the money to Amr and Zeyd wants to take the land back. Is Amr able to prevent Zeyd from taking the land? The answer: No. (Abdürrahim Efendi)."[7]
Like the previous examples, this fatwā did not mention the permission of the administrator of the land, but it is obvious that Abdürrahim Efendi allowed the use of miri land usufruct for debt since the term "vefaen ferağ" was explicitly mentioned. In another fatwā attributed to him, the "resumption" part is a bit vague:
"Zeyd transferred the land in his usufruct with the title deed to Amr on the condition of taking it back whenever he pays the amount (her ne zaman akçesini verirse almak şartıyla) and with the permission of the administrator of the land. When Zeyd pays the money, is he able to take the land back from Amr? The answer: He is."[8]
Once again, Abdürrahim Efendi allowed the revocable transfer of land usufruct as a debt guarantee as a valid contract. Other fatwās attributed to Abdürrahim Efendi in this compilation generally include the permission of sahib-i arz in the cases of transfer with resumption or conditional transfer.[9]
When we compare the fatwās of Abdürrahim Efendi with those of Mehmed Bahai,[10] the transformation in the fatwā literature concerning the usage of the rights on miri land as a credit source becomes evident. The transformation in how these sheikhulislams viewed the validity of mortgage on miri land might be partly connected to the cases in practice that I have treated in my third essay.[11] My research on the 18th century so far has not yielded many examples from the practice of ferağ bi'l-vefa on miri land in qāḍī court records. As I have noted in my third essay, I have found this absence in Istanbul qāḍī court registers striking. I also reach a similar conclusion based on my previous research on the practice of land law in the qāḍī courts of Antakya and Vidin in the first half of the 18th century, where I managed to find a case of bey' bi'l-vefa or ensured sale on land property,[12] that is, when a creditor sold the property in his or her ownership to a debtor as a guarantee for a debt, with the condition of redeeming the property once the debt was paid. However, I did not see any application of mortgage or ferağ bi'l-vefa on miri land in these court records. I can give, however, two examples that confirm the theoretical separation of ferağ bi'l-vefa from mortgage.
Case I: The rejection of mortgage on miri land
The first case is an order registered in the ahkam defteri (the register of decisions that brought together the imperial orders given as a response to the complaints made directly to the central administration) of Amid (today's Diyarbakır, a city in southeastern Turkey) that was directed at the governor of Diyarbakır and qāḍīs from the region. According to the information given in the order, a non-Muslim named Arotin made a complaint concerning a land in his father's usufruct. He claimed that his father Karagöz had ("ferağ ve tefviz") the land in Büyük Adiş village to him and his brothers by the permission of the administrator of the land, and they were using their share and paying the tithe and other taxes to the administrator. However, seven years ago, when Arotin was away, Hızır and Ahmed, sons of Hacı Mehmed, occupied his land. Hızır and Ahmed claimed that their father Hacı Mehmed and Karagöz had stipulated a mortgage contract for a previous debt (probably) arising out of a sale of some amount of soap.[13] Since their father was dead, they claimed inheritance of the debt as its creditors.
What really happened we may never know for a main reason: the documents recorded in the ahkam registers were formulated as orders to the local officers, instructing them to do what was necessary according to kanun (the Ottoman sultanic law) and sharī'a, which could mean the implementation of a decision but also the investigation and verification of the claims made in the complaint underlying the order. In the case of Arotin, the order's narrative indicated a definitive decision. It stated that Arotin objected to the mortgage by emphasizing that "the mortgage of this type of miri land is against the law (hilaf-ı kanun)."[14] Arotin also said that he had a fatwā confirming his objection. He demanded an order that comported with that fatwā ("fetva-yı şerifeleri mucebince amel olunup"). The order concluded that the kanun must be followed, which can be interpreted as confirmation of Arotin's claims and demands. This order was recorded in August 1744.[15]
In this document, Arotin may or may not have had recourse to a qāḍī before writing this petition. He did not have to wait for the decision of the qāḍī before writing a petition. He explained that the occupation by Hızır and Mehmed had begun seven years ago. In the qadi court records or decision registers, there are many similar cases where the complaints reached the authorities with such gaps, that is, before being resolved by a qāḍī. Any person could directly state their case to the central government if they had the necessary means. Arotin somehow learned or knew that the land in question could not be the subject of a mortgage contract and he used a fatwā as proof in support of his complaint. Who gave the fatwā to him is not known, so it might be that Arotin went to the local muftī for help and this is maybe how he learned also his rights on miri land. Or if he had the economic means, he perhaps went to another muftī who provided him with a favorable fatwā or even to the sheikhulislam.
A second point related to the fact that we will never know what happened for certain is captured by this question: was there actually a mortgage contract between Hızır and Mehmed's father and Arotin's father, or were they just making a false claim to justify their occupation? Regardless, and even assuming such a contract existed, Arotin used miri land regulations in his favor: since this was usufruct, it could not be subjected to a mortgage.
Still, I hesitate to generalize from one single case to analyze the practice of land law concerning the mortgage of miri land in Diyarbekir (Amid). First, a detailed research on the region and its registers could yield conflicting cases. Secondly, this decision was made by the central government, not the local authorities. Moreover, we do not know if the fatwā alluded to in the order was local or not. In any case, the fatwā presented by Arotin seems to follow the main regulation on miri land, rather than Abdürrahim's or Mostari's minority position. Whoever issued this fatwā did not allow the practice of mortgage on miri land. How the fatwā would have been written if the contract in question was ferağ bi'l-vefa rather than mortgage is another question.
Case II: A land problem case from İşkodra
The second case is from the Mahfel-i Şeriat Court in Istanbul. This court was ruled by a naib, that is, a judge who worked under a qāḍī and could be a substitute judge when necessary. In this case, the naib was under the authority of the kazasker, who was the chief judge responsible for appointing qāḍīs in the Ottoman Empire. This particular court was most probably established in later times but the exact date is not known.[16] The problem in this case was if the transfer was irrevocable or with resumption. Andon, a non-muslim from İşkodra (Shkodër, or Shkodra in today's Northern Albania), claimed that his father Yuvan took a debt of 1800 guruş from Covanni, and in exchange for this debt, Yuvan mortgaged a garden and transferred a field—whose usufruct rights were demonstrated in a document by the administrator of the land ("ba temessük-i sahib-i arz") as being his—by the contract of vefaen ferağ with the permission of the administrator of the land. Yuvan died before being able to pay the debt and take back the garden and the field. Andon claimed that he was the inheritor of the properties and he wanted to pay and take these back with the approval of the administrator of the land. As for Covanni, he responded that the contracts were neither a mortgage nor a transfer with resumption, but that they constituted an irrevocable sale and cessation. He produced a hucca, a notarial document issued by a court that proved the irrevocability of the transfer. Andon then accepted and approved this document. Both men also agreed on another debt that seems to be independent of this potential transfer. This case was recorded on November 17, 1857.[17]
The main problem behind this reconciliation was the structure of the transfer: were the sale and the transfer for purposes of guaranteeing a debt revocable or were they irrevocable? Since Covanni produced a notarial document proving his defense, the court was not interested in Andon's claims on revocability. However, one thing is interesting in the record: unlike the previous order from the 18th century, here, Covanni did not declare that it was not valid to institute a guarantee of debt on miri land but rather said that the transfer was irrevocable. Of course, unlike the Diyarbekir case, what we have here is not a mortgage but a vefaen ferağ arrangement. Since Covanni produced a previously issued court document that proved his point about the irrevocability of the contract, he did not have to engage in a theoretical discussion to persuade the court. However, it is still striking to see an example where one of the parties, here Yuvan, albeit ultimately falsely, claimed that the land was transferred with the purpose of credit, and the adversary party (or the naib in this case) did not object to this characterization on the grounds that the transfer was invalid but for the unrelated reason that a previously issued court document contradicted Yuvan's claims.
* * *
These two examples are certainly not enough to reach a definitive conclusion about the practice of ferağ bi'l-vefa on miri land during the 18th and 19th centuries, before the promulgation of the 1858 Ottoman Land Code. However, the existence of differing opinions in the fatwās by the local muftīs on the practice's permissibility, together with a few examples that gave way to the application of ferağ bi'l-vefa in practice, demonstrates that, in the end, the main point of view and the traditional regulation of miri land concerning the usage of the rights as a credit changed gradually by the beginning of the 17th century. Miri land could not be mortgaged, but it could be used for the purpose of a mortgage or in a mortgage-adjacent manner. The difference between ferağ bi'l-vefa and mortgage contracts was partly sustained because of the property and possession distinction, as the complaint from Amid demonstrates. In short, the state owned miri land; after all, miri land was not private property. Yet, peasant-cultivators possessed usufructuary rights over miri land (that they did not own), and it were these rights (not the land itself) that became the subject of ferağ bi'l-vefa arrangements. Therefore, the property and possession distinction certainly should not be dismissed as a mere technicality or a formality.
Finally, while scholars such as Mundy, Saumarez Smith, and Taylor have already discussed the theoretical roots of the 1858 Land Code and the developments in legal thinking that paved the way for it, I believe further research on the interpretation of the fatwās and sultanic regulations in Ottoman court documents would be equally significant to observe and analyze the evolution of the practice of ferağ bi'l-vefa.
Glossary of terms:
Ahkam defteri: "The register of decisions," that is, the register collecting orders and decisions made by the Imperial Council in response to the complaints sent to it.
Bey' bi'l-vefa: Ensured sale, when a creditor sold the property in his or 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 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.
Kanun: The Ottoman code, based on the will of the Sultan.
Miri land: State-owned land in the Ottoman context. The right to use of the state-owned lands belonged to the peasants in exchange for tax payment. This tax was collected by the sahib-i arz (defined below). Since these lands were not the private property of the peasants, they could not be sold, mortgaged, donated by them, and their inheritance was subject to specific rules.
Sahib-i arz: Administrator of the land responsible for tax collection. Before the 17th century, they were mainly members of the military. After this period, the 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 equivalent to 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, defined above).
Tefviz bi'l-vefa: See ferağ bi'l-vefa (defined above).
Usufruct: The right to use and enjoyment of another's (in this case, the state's) property and its profits.
Notes:
[1] Fatma Gül Karagöz, "Ferağ bi'l-vefa (transfer with resumption) and mortgage of miri (state-owned) land in seventeenth-century fatwās," Islamic Law Blog, June 13, 2024, https://islamiclaw.blog/2024/06/13/ferag-bil-vefa-transfer-with-resumption-and-mortgage-of-miri-state-owned-land-in-seventeenth-century-fatwas/.
[2] Martha Mundy and Richard Saumarez Smith, Governing property, making the modern state: law, administration, and production in Ottoman Syria (Bloomsbury Publishing, 2007), 38.
[3] Malissa Taylor, Land and Legal Texts in the Early Modern Ottoman Empire (Bloomsbury, 2023), 98.
[4] Şeyhülislam Meşrebzade Mehmed Arif Efendi, Camiu'l-İcareteyn, eds. Süleyman Kaya et al. (Istanbul: Klasik Yayınları, 2019), 246.
[5] Ibid., 246.
[6] Halit Çalış and Hasan Hacak, "Rehin," Türk Diyanet Vakfı İslam Ansiklopedisi (TDV İA), vol. 34, 2007, 540.
[7] Meşrebzade, Camiu'l-İcareteyn, 245.
[8] Ibid.
[9] Ibid., 244–47.
[10] Karagöz, "Ferağ bi'l-vefa (transfer with resumption) and mortgage of miri (state-owned) land in seventeenth-century fatwās."
[11] See Fatma Gül Karagöz, "The practice of tefviz bi'l-vefa (transfer with resumption) on miri (state-owned) land in 17th-century Istanbul courts," Islamic Law Blog, June 20, 2024, https://islamiclaw.blog/2024/06/20/the-practice-of-tefviz-bil-vefa-transfer-with-resumption-on-miri-state-owned-land-in-17th-century-istanbul-courts/.
[12] This was a vineyard in Vidin, hence private property. See Fatma Gül Karagöz, "1700-1750 yılları arasında Osmanlı Devletinde arazi hukuku uygulamaları: Vidin ve Antakya örneği" (PhD diss., Istanbul University, 2018), 146.
[13] The amount was weighed with kantar whose unit of measurement varied locally in the Ottoman Empire. For example, the weight of a kantar could differ between Istanbul and Cairo. See Cengiz Kallek, "Kantar," TDV İA, vol. 24, 2001, 318–19.
[14] Divan-ı Hümayun Sicilleri, Diyarbekir Ahkam Defterleri 1. Cilt, eds. Ahmet Zeki İzgöer et al. (Diyarbakır: Dicle Üniversitesi İlahiyat Fakültesi Yayınları, 2016), 144.
[15] Ibid.
[16] İstanbul Kadı Sicilleri 97 Mahfel-i Şer'iyyât Mahkemesi 3 Numaralı Sicil (H. 1273-1274 / M. 1857),
eds. Coşkun Yılmaz et al. (Istanbul: İBB Kültür AŞ Yayınları, 2019), 19.
[17] Ibid., 149.
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