Fatwa No : 86590
A Lawyer Demanding a Share from the Inheritance Money

A Lawyer Demanding a Share from the Inheritance Money

Assalamu Alaikum wa Rahmatullahi wa Barakatuh, respected Mufti Sahib! I seek a fatwa regarding a Shari‘ah issue. The matter is as follows: When my father was alive, he had appointed a lawyer to represent the family in a court case concerning inheritance. At that time, it was agreed that if the case went to court and a decision was issued, the lawyer would receive 10% of the inheritance obtained as his fee. However, if the inheritance was distributed among the heirs according to Shari‘ah by mutual consent, the lawyer would receive 5% for his work. Although such a fee is otherwise not legally permissible. Now, my father has passed away, and the case never went to court; instead, the inheritance has been distributed among the heirs according to Shari‘ah. In this situation, the lawyer is now demanding 10% instead of 5%, saying that he will accept nothing unless he is given 10%. My questions are: According to Shari‘ah, what percentage is obligatory to give the lawyer? Is it only necessary to pay 5%? If the lawyer refuses to accept 5%, can this amount instead be given in charity works, and will this discharge the responsibility of the deceased?

الجوابُ حامِدا ًو مُصلیِّا ً

It should be clarified that the arrangement made by the questioner’s deceased father with the aforementioned lawyer regarding the inheritance matter was a contract of agency (ijarah). In a contract of ijarah, it is necessary to determine the wage at the time of the contract. If the wage is not fixed at the time of the contract, or if the wage is made dependent on some condition or uncertain factor, this creates gharar (uncertainty), rendering the ijarah contract invalid according to Shari‘ah. In the case of an invalid ijarah, the worker or agent is entitled to wage according to the market rate, meaning the customary fee that another person would receive for performing the same work. Therefore, in the case at hand, the arrangement between the questioner’s deceased father and the lawyer regarding the inheritance was indeed an ijarah contract. It was obligatory for the father to fix the wage at the outset, specifying, “I will pay you this amount for this work.” Had this been done, the contract would have been valid. However, since no fixed wage was determined initially, the contract became invalid. Consequently, it is now obligatory to pay the lawyer the market rate for this work. Moreover, since this amount is considered a debt upon the deceased father, spending it on charitable works instead of paying the lawyer will not absolve the deceased from liability. It is therefore necessary and obligatory to give this right to the lawyer himself.

مأخَذُ الفَتوی

کما فی الدر المختار: (الفاسد ) من العقود (ما كان مشروعًا بأصله دون وصفه والباطل ما ليس مشروعًا أصلًا) لا بأصله ولا بوصفه (وحكم الأول) وهو الفاسد (وجوب أجر المثل بالاستعمال) لو المسمى معلومًا، ابن كمال (بخلاف الثاني) وهو الباطل فإنه لا أجر فيه الاستعمال (إلی قولہ) (تفسد الإجارة بالشروط المخالفة لمقتضى العقد فكل ما أفسد البيع) مما مر (يفسدها) كجهالة مأجور أو أجرة أو مدة أو عمل، وكشرط طعام عبد وعلف دابة ومرمة الدار أو مغارمها وعشر أو خراج أو مؤنة رد أشباه الخ۔
و فی الشامیۃ تحت: (قولہ وجوب أجر المثل ) أی أجر شخص مماثل لہ فی ذلک العمل الخ(باب الإجارۃ الفاسدۃ، ج 6، ص 45،46، ط: سعید)۔
و فی الدر أیضا: و شرطھا کون الاجارۃ و المنفعۃ معلومتین لأن جھالتھما تفضی الی المنازعۃ الخ ( کتاب الاجارۃ ج: 6، ص: 5، ط: سعید )۔