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Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
Energy Development Oman plans 7-year sukuk sale, document shows - ZAWYA
The practice of tefviz bi’l-vefa (transfer with resumption) on miri (state-owned) land in 17th-century Istanbul courts
This is the third essay in a series of essays entitled “When usufruct became a credit source: The contract of the transfer with resumption (fera? bi’l-vefa).”
In this essay, I will discuss the use of the tefviz bi’l-vefa contract (a terminology used in the same sense as fera? bi’l-vefa, that is, transfer with resumption, the transfer or cessation of the usage rights of an immovable property for a limited period, in exchange for a debt or as a guarantee of a debt) on miri or state-owned land in 17th-century Istanbul court records. In a land that was of miri status, the usage rights were given to peasant-cultivators in exchange for tax-payment that was intertwined with the concept of tenancy. Hence, the owner of miri land had the usufruct rights, that is, the right to use and enjoyment of another’s—in this case, the state’s—property and its profits. However, the buildings on a miri land, the trees, the vineyards could be private property. When the peasant wanted to “sell” the miri land, he had to enter into a contract of fera? or tefviz, which was used for the transfer (or “sale”) of the usufruct. The contract was entered into with the permission of the administrator of the land. If there were buildings on miri land, they could be sold, but the court records generally mentioned such sale separately: the buildings or trees as property that was sold (by bey‘-i batt-? sahih) and the fields, the lands on which these private properties stood as land that was the transferred (by fera? or tefviz).
For the following survey, I use the transliterations of Istanbul q??? court records published by an online database established through a collaboration between the Istanbul Municipality and Medipol University.[1] This database includes one hundred sidjils (q??? court registers) from the 16th to the 20th century. The website also has a research tool that allows a word search in these sidjils. The tool is a great resource for researchers, enabling them to survey keywords in many different court records. However, court registers do not employ legal terminology consistently: a word search can omit those cases where (and if) a scribe described the debt and the transfer without using the technical terminology such as fera? bi’l-vefa and so forth.[2] I am underlining this possibility because, in similar vein, in some fatw? examples, the muft?s did not use expected specific terminology but rather used phrases like “with the condition that whenever Zeyd (the debtor) pays Amr, Amr should return the property to Zeyd.”[3] That said, while the court records of Istanbul include many cases of fera? bi’l-vefa, the application of this contract to miri land was rare. Hence, the rarity of cases involving transfer with resumption contracts on miri land is probably not the result of the limitations of the research tool but rather due to the fact that such contracts were rare to begin with. Conversely, using the same keywords, I found many such cases on waqf properties (endowment).
In what follows, I explore four cases from Istanbul courts that involve the application of the tefviz bi’l-vefa (or the fera? bi’l-vefa) contract on miri land.
Case I: A reconciliation between Ali Bey and Tato
The first case was recorded in December 1657 in the court of Rumeli Sadareti.[4] The case involved a reconciliation between Ali Bey, son of Mehmed, and Tato, son of Yuvan. They were both residents of Dimetoka (Didymoteicho, a town in Western Thrace, in modern-day Greece) in the district of Edirne. This case was a reconciliation in which the contract of tefviz bi’l-vefa was used as a defense by the defendant Tato. Ali Bey allowed Tato 15 days for the payment of debt and the main purpose of the document seems to be the recording of this due date.
The document was written as a first-person narrative by Ali Bey, in a way that summarizes the events that resulted in the reconciliation process. Ali Bey claimed that he bought a garden, hence private property, from Tato and that he also took the usufruct rights of a field that was connected to the garden by fera?, with the permission of the administrator of the land, for 1000 akçes (Ottoman currency). Ali Bey built a mill in the garden and planted some trees. He later leased the property (“icar ve teslim”) to Tato for 1500 akçes per annum. At the time of the dispute, Tato had paid part of this debt with rye and millet but still owed 3000 akçes. Ali demanded the payment of this latter amount.
Tato defended himself by claiming that the garden and the field were given to Ali Bey through bey‘ bi’l-vefa (ensured sale, when a creditor sells 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) and tevfiz bi’l-vefa. Tato also noted that he paid the original debt of 1750 akçes to Ali Bey in cash along with rye and millet with a value of 4200 akçes, hence claiming to pay more than the original debt. Tato demanded the excessive amount of money in question back.
There is one striking point in the way the defense of Tato was formulated: “He said” that the “aforementioned sale and the aforementioned transfer were in reality a mortgage” (bey‘-i mezkur ile tefevvuz-i mezkur hakikatde rehin olup)[5]. Ali Bey insisted, however, that the transfer was final. The court asked Tato for proof that demonstrated that the sale and the transfer were revocable, but he was unable to produce it. Ali Bey also stated that he took an oath that he did not receive any payment for the rest of the debt. The scribe also noted from Ali Bey’s narrative the fact that “there were a lot of problems between [them] (beynimizde münazaat-? kesire vukuundan sonra),”[6] a generic statement that could be seen in many reconciliation documents. Ali Bey did not explain how they reconciled their dispute but in the end, it was decided that the garden and the land would be given to Tato. He was to pay Ali Bey 3000 akçes for the trees and the mill. Ali Bey also accepted that Tato’s payment of 3000 akçes would be postponed 15 days because of the latter’s inability to pay.[7]
The language used in this document gives the reader the impression that the usage of miri land as a credit method was accepted as legal. Neither the q??? nor Ali Bey rejected the transfer on the grounds that it would be impossible to stipulate a tefviz bi’l-vefa contract on miri land, a contrast with the fatw?s of Mehmed Bahai (d. H. 1064/1654) who, as I described in my second essay, rejected tefviz bi’l-vefa or any kind of revocable transfer on miri land.[8] Moreover, in this case, the purpose of the contract of tefviz bi’l-vefa was underlined by Tato’s defense that the transfer was “in reality a mortgage.” This defense was based on a comparison between the contracts described in this case and mortgage, making them similar in purpose. I should note here the fact that Tato’s answer was most probably reworded by the scribe or q???, which demonstrates, in my opinion, their approval of the validity of the tefviz bi’l-vefa contract on miri land. That is because, rather than rejecting Tato’s defense, they asked him for proof of “mortgage”, however, he was unable to produce a document or witnesses proving his defense.
The fact that Ali Bey accepted to return the garden and the field to Tato in the end is another curious part of this document, which made me ask the next question: if the contract was irrevocable, as Ali Bey claimed, then why did he accept to return it to Tato? Consider also the investment Ali Bey stated he made on the land: he stated that he spent money to build a mill and plant trees. He also rented the property back to Tato, which is reminiscent of the fera? bi’l-istiglal contract (the transfer with resumption and rent), another contract that was a derivation of fera? bi’l-vefa. ?stiglal has the same root with galle, which is revenue. In the contract of fera? bi’l-istiglal, the transferee/creditor leased the property to the transferor/debtor. The fact that Ali Bey leased the property back to Tato is thus reminiscent of the fera? bi’l-istiglal contract, but the document did not include any reference to this option.
Case II: An acknowledgement of debt between Dimitraki and Ömer A?a
The second document was recorded on November 23, 1670, in the Istanbul Bab Court registers. The head of this court was a naib, a substitute q???, who was under the district of the Istanbul q??? court.[9] This document is a hucce, an official notarial document issued by a q??? that was based on a debt acknowledgment between Dimitraki, son of Laskari, and Ömer A?a, the treasurer of Yusuf Efendi. Dimitraki also had a financial title as trustee of mukataa (in this context, a unit in the treasury).[10] In turn, Yusuf Efendi, who employed Ömer A?a, was the surre emini, the person responsible for surveying the gifts sent to the two holy sanctuaries (Haremeyn), Mecca and Medina respectively, by Ottoman sultans during the hajj (pilgrimage) season. These titles mean that this contract was concluded between two members of society who were close to the ruling elite and who had economic privileges.
Dimitraki declared that he owed Ömer A?a 600 esedi guru?. The guru?, or kuru?, was another currency used in the Ottoman Empire, whereas esedi guru? (literally, guru? with lion) referred to the thaler, the currency of Holland, used in the Ottoman market by the beginning of the 17th century.[11] It seems that the two men stipulated a contract of bey‘ bi’l-vefa and tefviz bi’l-vefa to secure Dimitraki’s debt. As such, Dimitraki used his farm (çiftlik, a word that could denote land, field, or a plantation-based farm), in this context, a composite property that consisted of buildings (private property) and the fields on which the building stood, which was the miri (state-owned) land. For the private property, they stipulated a bey‘ bi’l-vefa contract for 400 guru?. As for the land, it was transferred to Ömer A?a by tefviz bi’l-vefa, with the permission of the administrator of the land, for 200 guru?.[12] The formal language of the document was constructed in a way that the price of these transfers from Dimitraki to Ömer A?a was bartered for Dimitraki’s original debt of 600 esedi guru? (“semen-i mezbur ile bedel-i mezburu mezbur Ömer A?a’ya deyn olan alt? yüz esedi guru?a takas”).[13] The court also included generic wording to describe the transfer, incorporating Dimitraki’s narrative that Ömer A?a could use the property in question (“kabz ve tasarrufa müvekkil-i mezbur Ömer A?a’y? taslit eyledim”).[14] In the end, Dimitraki claimed that if he were to be rendered unable to pay the debt in 180 days, the property was to be sold and the usufruct rights were to be transferred by the representatives he appointed. However, if the sale price exceeded the debt, he would get the surplus. The court recorded this debt guarantee.
Case III: An acknowledgment of debt between Ahmed Be?e and Ahmed Çelebi
The third case is from the same register in the Istanbul Bab Court and is dated January 1671. It is another hucce that was based on a debt acknowledgment between Ahmed Be?e, son of Mehmed, and Ahmed Çelebi, son of Hüseyin. In this case, Ahmed Be?e appears to have possessed miri lands in his usufruct, more specifically a meadowland and a field in Gebze (today a suburb of Istanbul, located on the Anatolian side), and private property that included a vineyard and a house—all transferred to Ahmed Çelebi as a guarantee of debt from a previous purchase between Ahmed Be?e and Ahmed Çelebi. This purchase included valuable movable property (cloth fabrics, furs, guns, books, etc.) for 250 guru?. Ahmed Be?e also claimed that he owned another debt of 170 guru? to Ahmet Çelebi. As a guarantee, Ahmed Be?e’s miri lands were transferred to Ahmed Çelebi with the permission of the administrator of land with the contract of tefviz bi’l-vefa for 200 esedi guru?. As for the vineyard and the house, they were the subject of a bey‘ bi’l-vefa contract for 220 esedi guru?.[15] Unlike the previous case, here, the house, the vineyard, and the lands were not parts of a single composite unit. However, the language of the document, similar to the previous case, used terminology resembling a barter agreement. Ahmed Be?e recognized the control of Ahmed Çelebi (“Ahmed Çelebi’ye taslit”) on the property and stated that the contract would be revocable if he paid the debt in 180 days (“yüz seksen gün tamam?na de?in eda-i deyn ile fesh-i akd”). Once again, the court accepted the transaction’s legitimacy without any question.
Case IV: An acknowledgment of debt between Ernek and Muvakkis
The fourth case is also recorded in the same register, but the affair concerned a debt acknowledgment based on a property located in Divri?i (a town in Sivas, in Eastern Anatolia). This time, Ernek, son of Harabit, transferred a field (a miri land) to Muvakkis as guarantee of his debt to Muvakkis. According to the document, the two men had stipulated a contract of tefviz bi’l-vefa, whereby Ernek gave the usufruct of the field in question for 50 esedi guru? to Muvakkis, with the permission of the administrator of the land. The debt was to be paid in a year. Ernek took the money and transferred the land.[16] According to the contract, if the debt was not paid on time, Muvakkis could “sell” the usufruct of the land by the contract of fera? to a third person, with the permission of the administrator of the land, take the money and give the remaining part to Ernek. Ernek also appointed Muvakkis as his proxy: in case he was unable to pay the debt, Muvakkis could initiate the “sale” of the land. The scribe wrote Ernek’s recognition of Muvakkis’s rights on the land in the same formulaic way seen in the previous examples.[17]
* * *
How does one explain these examples where fera? bi’l-vefa (or tefviz bi’l-vefa) on miri land was allowed? All of these examples were recorded after the demise of Ibn Kemal (d. 940/1534), Ebussuud Efendi (d. 982/1574), Yahya Efendi (d. H. 1053/1644) and Mehmed Bahai who, as I explained in my previous essay, rejected tefviz bi’l-vefa on miri land.[18] Since I have merely surveyed four cases, they might be labeled exceptional or dismissed as misinterpretations. The first two cases—those of Ali Bey and Tato, and of Dimitraki and Ömer A?a—may indeed be exception since they concern a guarantee on composite properties (thus, not purely miri land mortgages), where the miri land in question was transferred because of its connection to a private property. However, the last two cases are not based on similar composite properties. As such, I don’t think the legality of the fera? bi’l-vefa (or tefviz bi’l-vefa) contract depended on the composite structure of the property in question.
Of additional note is that the last three cases are from the same register. Therefore, it is possible that there was one q??? who followed the interpretation of Esad Efendi (d. H. 1034/1625), who, unlike Mehmed Bahai, indirectly allowed fera? bi’l-vefa.[19] According to the information obtained from the inner cover of the register, this particular register was kept by two q???s, a certain Mustafa Efendi who was registered as the groom of Minkarizade Yahya Efendi (d. H. 1088/1678), another sheikhulislam (chief muft? appointed by the Ottoman sultan) and another q??? named Esadzade.[20] The inclusion of these names requires some further investigation. It should also be noted that, except in the last case, at least one of the participants (contracting parties) in all of the other cases had economic privilege or a military title such as bey or be?e. As their titles suggest, these people were probably investors rather than actual peasant-cultivators.
To label these documents as misinterpretations of the law or exceptional cases would certainly be an easy conclusion, but I think that their presence should provoke further research on questions about the practice of the transfer with resumption on miri land and its transformation in this period. Though the examples are few, in these cases, the courts allowed cultivators and investors to obtain credit from their rights on miri lands. The extent of this transformation and the expansion of the recognition of fera? bi’l-vefa contracts in the 17th century in provincial courts is an equally important question that requires further research.
Glossary of terms:
Bey‘-i batt-? sahih: Irrevocable sale or sale.
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.
Fera?: 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).
Fera? bi’l-istiglal: The transfer with resumption and rent, a contract that was a derivation of the fera? bi’l-vefa (defined below) whereby the transferee/creditor would rent the property in question to the debtor.
Fera? 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 fera? 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.
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 private property of the peasants, they could not be sold, mortgaged, donated by them and their inheritance was submitted to specific rules.
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 equivalent to a grand muft? 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 q??? court records and fatw?s interchangeably with fera? (cessation, defined above).
Tefviz bi’l-vefa: See fera? bi’l-vefa (defined above).
Usufruct: The right to use and enjoyment of another’s (in this case state’s) property and its profits.
Notes:
[1] ?stanbul Kad? Sicilleri, https://kadisicilleri.org/.
[2] I used terminological alterations of the contract in the search tool: fera? bi’l-vefa, tefviz bi’l-vefa, vefaen fera?, and vefaen tefviz.
[3] I have seen such examples mostly in fatw?s concerning waqf properties. ?eyhülislam Yeni?ehirli Abdullah Efendi, Behçetü’l-Fetava, eds. Süleyman Kaya et al. (Klasik Yay?nevi: Istanbul, 2011), 279; ?eyhülislam Me?rebzade Mehmed Arif Efendi, Camiu’l-?careteyn, eds. Süleyman Kaya et al. (Klasik Yay?nlar?: Istanbul, 2019), 241; Es-Seyyid Ahmed Efendi and Es-Seyyid Haf?z Mehmed b. Ahmed el-Gedusi, Neticetu’l-Fetava, eds. Süleyman Kaya et al. (Klasik Yay?nlar?: Istanbul, 2014), 164.
[4] This was one of the courts in Istanbul that included the cases presided over by the kazasker of Rumeli—the Balkan peninsula—who was the chief justice, hence responsible of q??? appointments, and he was a member of Ottoman Imperial Council. ?stanbul Kad? Sicilleri 40: Rumeli Sadareti Mahkemesi 106 Numaral? Sicil (H. 1067-1069/M. 1656-1658), eds. Co?kun Y?lmaz et al. (?BB Kültür A? Yay?nlar?: Istanbul, 2019), 19.
[5] Ibid., 605.
[6] Ibid.
[7] Ibid.
[8] Fatma Gül Karagöz, “Fera? bi’l-vefa (transfer with resumption) and mortgage of miri (state-owned) land in seventeenth-century fatw?s,” 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-fatw?s/.
[9] ?stanbul Kad? Sicilleri 53: Bab Mahkemesi 11 Numaral? Sicil (H. 1081 / M. 1670-1671), ed. Co?kun Y?lmaz et al. (?BB Kültür A?: Istanbul, 2019), 19.
[10] Mehmet Genç, “Mukataa,” Türk Diyanet Vakf? ?slam Ansiklopedisi (TDV ?A) vol. 31, 2020, 129.
[11] Halil Sahillio?lu, “Esedi,” TDV ?A, vol. 11, 1995, 368.
[12] Bab Mahkemesi 11 Numaral? Sicil, 248.
[13] Ibid.
[14] Ibid. In a prominent master thesis, Ahmet Harun Bilge noted that in Istanbul court records, the usage of the creditor was allowed in ensured sale contracts by the words: “I accepted his usage (tasarrufunda taslit eyledim).” Ahmet Harun Bilge, Bey‘ bi’l-vefa ve Osmanl? Uygulamas?ndaki Yeri (MA thesis, Istanbul University: Istanbul, 2020), 104.
[15] Bab Mahkemesi 11 Numaral? Sicil, 406.
[16] Bab Mahkemesi 11 Numaral? Sicil, 453.
[17] Ibid.
[18] See Karagöz, “Fera? bi’l-vefa.” I should note that it is not entirely clear whether Yahya Efendi rejected fera? bi’l-vefa like the other jurists.
[19] Ibid.
[20] Bab Mahkemesi 11 Numaral? Sicil, 20.
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