MUKHTAṢAR AL-QUDŪRĪ

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 Copyright © Ta-Ha Publishers Ltd., 1431AH/2010CE

First Published in April 2010

Published by: Ta-Ha Publishers Ltd.

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ISBN-13: 978 1 84200 118 9

ISBN-13: 978-1-84200-149-3 (ePub)

Printed and bound by: Mega Basim, Turkey

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 CONTENTS

FOREWORD
Endorsements of the Translation
1. Muḥammad Imdād Ḥussain Pīrzādā
2. al-Ḥajj Abū Ja‘far al-Ḥanbalī
3. Shaykh Muḥammad ibn Yaḥyā an-Nīnowī
INTRODUCTION
Fiqh
Meaning and Application
Objectives
Compilers
e Mukhtaṣar al-Qudūrī
About the Author
About the Book
e Translation
1. ṬAHĀRAH – PURIFICATION
Wuḍū’ – Minor Ritual Purification
e Obligations (Farā’iḍ) of Wuḍū’
e Sunnahs of Purification [sought in Wuḍū’]
Matters that are Recommended (Mustaḥabbāt) in Wuḍū’
at which Nullifies Wuḍū’
Ghusl – Major Ritual Purification
e Obligations of Ghusl
e Sunnahs of Ghusl
e Factors which make Ghusl Obligatory
When Ghusl is Sunnah

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 Water
Used Water
On Tanning
On Wells
Leftover Water
Tayammum – Dry Ablution
Stipulations for the Validity of Tayammum
e Method of Tayammum
at which Nullifies Tayammum
e Search for Water
Masḥ – Wiping Over Khuffs
Its Ruling
Method of Wiping
at which Nullifies Wiping
Issues Pertaining to the Duration of Wiping
at over which Wiping is not Valid
Ḥayḍ – Menses
e Duration of Menstruation
Colour
On its Legal Ruling
Istiḥāḍah – Chronic Menstrual Bleeding
On its Legal Ruling
Nifās – Postnatal Bleeding
Impurities and their Cleansing
Heavy and Light Filth
Visible and Invisible Filth
Istinjā’ – Cleansing the Excretory Passages
2. ṢALĀH – PRAYER
e Timings of Prayer
Recommended Times for Prayer
Adhān – e Call to Prayer and its Ruling
Preconditions of Prayer

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e Properties of Prayer
Obligations (Farā’iḍ)
e Performance of Prayer
e First Rak‘ah or Unit
e Second Rak‘ah or Unit
Recitation
e Witr Prayer
Minimum Recitation
e Jamā‘ah or Congregation
Imāmah – Leading the Congregational Prayer
Congregation of Women
Sequence of Rows
Other Issues Pertaining to Prayer
at which Nullifies Wuḍū’
Discharge (Qaḍā’) of Missed Prayers
Disapproved Times for Prayer
Nawāfil – Supererogatory Prayers
e Ruling of Recitation in Supererogatory Prayers
Prostrations for Error
e Prayer of the Sick
e Prostrations of Recitation
e Qur’ānic Verses (Āyahs) of Prostration
e Ruling on Prostration
e Prayer of the Traveller
Shortening (Qaṣr) the Prayer
Beginning the Shortening
e Jumu‘ah (Friday) Prayer
e Preconditions for the Validity of the Jumu‘ah Prayer
Its Preconditions
ose on whom the Jumu‘ah Prayer is not Obligatory

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 e Khuṭbah – Address
e Prayer of the Two ‘Īds
Recommended Acts of ‘Īd al-Fiṭr
e ‘Īd Prayer Procedure
Recommended Acts of ‘Īd al-Aḍḥā
e Takbīr at-Tashrīq
Prayer during the Solar Eclipse (Kusūf)
e Istisqā’ – Prayer for Rain
e (Night) Prayer During the Month of Ramadan
e Tarāwīḥ Prayer
e Prayer in the State of Fear
Funerals
Bathing the Corpse
e Shroud
e Funeral Prayer
Carrying the Bier
e Burial
e Stillborn
e Shahīd – Martyr
Prayer Inside the Ka‘bah
3. ZAKĀH – OBLIGATORY POOR-DUE
Obligations of Zakāh
Zakāh on Camels (Ibil)
Zakāh on Bovines (Baqar)
Zakāh on Sheep and Goats (Ghanam)
Zakāh on Horses (Khayl)
Zakāh on Property (Māl)

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Zakāh on Silver (Fiḍḍah)
Zakāh on Gold (Dhahab)
Zakāh on Stock (‘Urūḍ)
Zakāh on Crops (Zurū‘) and Fruits (imār)
ose to whom it is Permitted to Pay Zakāh and those to whom it is
not Permitted
ose Entitled
ose Not Entitled
Ṣadaqat al-Fiṭr
e Amount of Fiṭrah
4. ṢAWM – FASTING
Types of Fasting (Ṣawm)
Ramadan Moonsighting
e Meaning of Fasting
Miscellaneous Issues Pertaining to Fasting
‘Īd al-Fiṭr Moonsighting
I‘tikāf – Seclusion
5. ḤAJJ – PILGRIMAGE
e Stipulations of Obligation
Mawāqīt – Geographic Limits
Iḥrām – the Ḥajj Costume
Talbiyah – the Ḥajj Chant
Prohibitions for the Muḥrim
Allowances for the Muḥrim
Ifrād
Ṭawāf al-Qudūm – Circumambulation upon Arrival
Sa‘y – Going Vigorously and Quickly Between Ṣafā and Marwah
Staying at ‘Arafah
Staying at Muzdalifah
Minā

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 Ṭawāf az-Ziyārah – Circumambulation of Visiting
Ramy – Casting Stones
Ṭawāf aṣ-Ṣadr – Farewell Circumambulation
Miscellaneous Issues Pertaining to Ḥajj
Qirān
Tamattu‘
Offences (Jināyāt) During Ḥajj
Conjugal Relations
Impurity
Shortcomings
Hunting
Iḥṣār – Confinement
Lost Rites
Offering (Hady)
6. BAY‘ – SALES
e Conditions of Sale
Khiyār ash-Sharṭ – Option Stipulated in the Contract
Khiyār ar-Ru’yah – Purchase Subject to Examination
Khiyār al-‘Ayb – Option to Rescind a Sale due to a Blemish
Bay‘ Fāsid – Invalid Transactions
Bay‘ Gharar – Uncertain Transactions
On Abhorrent Transactions
Iqālah – Negotiated Rescission of the Contract
Murābaḥah – Profit-based Sale – and Tawliyah – Profitless Sale
Ribā – Usury
Salam – Advance Payment

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 e Conditions for the Validity of Salam
Ṣarf – Currency Transactions/Exchange
7. RAHN – PAWNING
8. ḤAJR – LIMITATION ON SOMEONE’S LEGAL
COMPETENCE
On Fools
Puberty
On Insolvents
9. IQRĀR – ACKNOWLEDGEMENT
Making an Exception to an Acknowledgement
Confession on Deathbed
10. IJĀRAH – HIRE/LEASE
Types of Hired Persons (Ujarā’)
e Employee [Held] in Common
e Private Hireling
at which Invalidates Ijārah
When Remuneration becomes Due
Differences between the Lessor and the Lessee
11. SHUF‘AH – PREEMPTION
Procedure of a Lawsuit
12. SHARIKAH – PARTNERSHIP
Sharikat al-Amlāk – Partnership in Owned ings
Sharikat al-‘Uqūd – Contractual Partnership
Sharikat al-Mufāwaḍah – Unlimited Partnership
Sharikat al-‘Inān – Limited Partnership
Sharikat aṣ-Ṣanā’i‘ – Partnership in Manufacture
Sharikat al-Wujūh – Partnership in Liabilities
Unsound Partnerships
13. MUḌĀRABAH – PROFIT-SHARING PARTNERSHIP
14. WAKĀLAH – AGENCY
at Which Invalidates Agency

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15. KAFĀLAH – SURETY
Surety of Person
Surety of Property
16. ḤAWĀLAH – TRANSFER OF DEBT
17. ṢULḤ – NEGOTIATED SETTLEMENT
18. HIBAH – GIFTS
Retraction of a Gift
19. WAQF – ENDOWMENT
20. GHAṢB – USURPATION
21. WADĪ‘AH – DEPOSITS
22. ‘ĀRIYAH – LOAN (OF THE USE OF A COMMODITY)
23. LAQĪṬ – FOUNDLINGS
24. LUQṬAH – FOUND PROPERTY
25. KHUNTHĀ – HERMAPHRODITES
26. MAFQŪD – MISSING PERSONS
27. IBĀQ – FUGITIVE SLAVES
28. IḤYĀ AL-MAWĀT – REVIVIFYING BARREN LAND
29. MA’DHŪN – AUTHORISED SLAVES
30. MUZĀRA‘AH – CROPSHARING
31. MUSĀQĀH – CROPSHARING BY IRRIGATION
32. NIKĀḤ – MARRIAGE
Prohibited Categories of Women
Marriage to Non-Muslim Women
Virgins (Bikr) and Previously-Married Women who had
Consummated their Marriages (ayyib)
Guardian (Walī)
Suitability (Kafā’ah)
Dowry (Mahr)
Miscellaneous Issues Pertaining to Marriage
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33. RAḌĀ‘ – SUCKLING
34. ṬALĀQ – DIVORCE
Kinds of Divorce
Explicit Divorce
Implicit Divorce
Delegation (Tafwīḍ) of Divorce
Retraction of Divorce (Raj‘ah)
On Legalisation of Remarriage (Ḥalālah)
35. ĪLĀ’ – VOWING TO ABSTAIN (FROM SEXUAL
INTERCOURSE WITH ONE’S WIFE)
36. KHUL‘ – DIVORCE AT THE INSTANCE OF THE WIFE
37. ẒIHĀR – INJURIOUS COMPARISON
e Wording of Injurious Comparison (Ẓihār)
e Expiation of Injurious Comparison (Ẓihār)
38. LI‘ĀN – IMPRECATION BY BOTH PARTIES
e Procedure of Imprecation by Both Parties
39. ‘IDDAH – WAITING PERIOD
On the Mourning of Widows
Proof of Lineage of the New-Born Child
40. NAFAQĀT – MAINTENANCE
Custody
41. ‘ITĀQ – SETTING FREE
TADBĪR – Setting Free a Slave on the Death of the Master
ISTĪLĀD – Bearing the Child of the Master
42. AL-MUKĀTAB – THE SLAVE WHO CONTRACTS TO
PURCHASE HIS FREEDOM
On the Umm al-Walad and Mudabbar being Mukātab
43. WALĀ’ – CLIENTAGE
44. JINĀYĀT – OFFENCES

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 Kinds of Homicide
Qiṣāṣ (Retaliation; lex talionis) for the Loss of Life
Qiṣāṣ for the Loss of Bodily Organs
45. DIYĀT – COMPENSATORY PAYMENTS FOR CRIMES
Organs of the Human Body of which there is only One
Organs of the Human Body that exist in Pairs
Organs of the Body, or other Essential Parts, of which there are
More than Two
Compensatory Payment for Wounds
Compensatory Payment for Amputation/Dismemberment
Compensatory Payment for Homicide and the Legally
Responsible Group (‘Āqilah)
Offences by Riding Animals
Offences by Slaves
Leaning Walls and Killing Slaves
Qasāmah – Compurgation by Oath
46. MA‘ĀQIL – PAYERS OF DIYĀT/THE LEGALLY
RESPONSIBLE GROUP
47. ḤUDŪD – PUNISHMENTS FOR CONTRAVENTION
OF THE LIMITS
Zinā – Unlawful Sexual Intercourse
Retraction by the Confessor and Witness
e Ḥadd Punishment for Consumption of Alcohol (Shurb)
Qadhf – Unsubstantiated Accusation of Unlawful Sexual
Intercourse
Ta‘zīr – Discretionary Punishment
48. SARIQAH WA QUṬṬĀ‘ AṬ-ṬARĪQ – THEFT &
HIGHWAY ROBBERS
On Well-Protected Places (Ḥirz)
On Amputation
On Highway Robbery
49. ASHRIBAH – [INTOXICATING] DRINKS

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50. ṢAYD WA DHABĀ’IḤ – GAME & ANIMALS FOR
SLAUGHTER
On Dhabḥ – Slaughtering
51. UḌḤIYAH – SACRIFICE
52. AYMĀN – OATHS
Expiation for the Breach of Oath
Swearing an Oath Not to Enter a House, etc.
Swearing an Oath Not to eat Food
Swearing an Oath on Time
53. DA‘WĀ – LAWSUITS
Oaths in Lawsuits
Miscellaneous Claims
54. SHAHĀDĀT – TESTIMONY
Acceptable and Unacceptable Witnesses
Conformity of Testimony
55. AR-RUJŪ‘ ‘AN ASH-SHAHĀDAH – RETRACTION OF
TESTIMONY
56. ĀDĀB AL-QĀḌĪ – CONDUCT OF THE JUDGE
57. QISMAH – DIVISION
58. IKRĀH – COERCION
59. SIYAR – CAMPAIGNS
On Truce
Ghanā’im – Spoils
On Jizyah – e Capitation on Non-Muslims Living under
Muslim Governance (Dhimmīs)
On Apostates (Murtadds)
Rebels (Bāghīs)
60. ḤAẒR WA IBĀḤAH – PROHIBITION &
PERMISSIBILITY
61. WAṢĀYĀ – BEQUESTS

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62. FARĀ’IḌ – INHERITANCE
Eclipses in Inheritance
Residuaries (‘Aṣabāt)
Exclusion from Inheritance (Ḥajb)
e Issue of Mushtarakah
Redistribution of Residue (Radd)
Relations by the Women’s Side (Dhawū’l-Arḥām)
Calculation of Shares (Ḥisāb al-Farā’iḍ)
APPENDIX ON ZAKĀH
Table to Show Rates of Zakāh in Camels
Table to Show Rates of Zakāh in Bovines
Table to Show Rates of Zakāh in Ovines (Sheep and Goats)
GLOSSARY
BIBLIOGRAPHY
e Noble Qur’ān
Ḥadīth Compilations
Fiqh Books
Lexicons
Others

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 FOREWORD
ENDORSEMENTS OF THE TRANSLATION

1. MUḤAMMAD IMDĀD ḤUSSAIN

PĪRZĀDĀ
In the name of Allah, the All-Merciful, the Most-Merciful

Al-Mukhtaṣar, the jurisprudential treatise of Imam al-Qudūrī,

has enjoyed far more popularity than any other text in the Ḥanafī
school. It is the nucleus around which laws revolve, and the
foundation upon which other texts, commentaries and summaries are
based. For hundreds of years, Mukhtaṣar al-Qudūrī has been
presented to the masses in many forms, such as lectures in Islamic
institutions and study circles, as well as in publications. It covers
thousands of issues, enveloping all aspects of life; from worship to
politics, and from private life to the international scene. I am pleased
with the manner in which Ṭāhir Maḥmood Kiānī has undertaken the
task of providing an English translation of this masterpiece. As a
former student and current lecturer at the institution of Jāmi’a al-
Karam, this work of his has brought about a sense of appreciation
and honour to all those associated with the institution. I recommend
this English translation of Mukhtaṣar al-Qudūrī to everyone,
especially to the students and teachers of Ḥanafī jurisprudence.
Muhammad Imdād Hussain Pīrzādā
Founder & Principal of Jāmi‘a al-Karam,
Eaton Hall, Retford, U.K.

2. AL-ḤAJJ ABŪ JA’FAR AL-ḤANBALĪ

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 In the Name of Allah, the Most Merciful, the Most
Compassionate Praise be to Allah and peace and blessings be upon
the Chosen One, his wives, family and companions.
As for what comes next:
I was shown extracts of Mukhtaṣar al-Qudūrī by our brother
Ṭāhir Kiānī. I looked through both extracts, those being the
Transactions and also the Introduction. I have found both of them
not only lucid and easy to understand but also well written.
After further reading, I have found that this work has the capacity
to be the most authoritative book on Ḥanafī fiqh in English based
upon the extracts that have been shown to me. It is my sincere prayer
and hope in Allah that the author will be successful in completing
and presenting this much needed work in the English language to
give adherents to the Hanafī School an authoritative text to return to
for rulings. And with Allah is every success.
Was-Salaam,
Brother in Islam,
Al-Ḥajj Abū Ja‘far al-Ḥanbalī

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SHAYKH MU AMMAD IBN YA YĀ AN
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 3. SHAYKH MUḤAMMAD IBN YAḤYĀ AN-
NĪNOWĪ
In the name of Allah, the All-Merciful, the Most-Merciful

All praise is due to Allah Who causes those whom He wishes

goodness to understand the fiqh of the dīn [of Islam] and endows
him with sincerity in intention and in action, secretly and openly, and
makes him travel the path of those who do not disobey Him in any
affair; and peace and blessings be upon our Master Muḥammad who
has been sent to all beings as a warner, calling to Allah by His leave,
and as an illuminating lamp; and upon his pure family and his noble
companions – peace [upon them all] in abundance.
Whoever looks carefully and is good at reflection on the lives of
the Imams of fiqh, of the Imams of the People of the Sunnah and the
Community (Ahl as-Sunnah wa’l-Jamā‘ah) – may Allah be pleased
and satisfied with them, ought to pause by the boundless sea that is
the Great Imam Abū Ḥanīfah an-Nu‘mān, may Allah have mercy on
him and be pleased with him, whose knowledge is rarely matched.
His fiqh is externally a striped silk brocade and internally a well-
ordered pearl in its depths. e Imams have testified to that and the
Ummah are unanimously agreed on his magnificence. In this regard,
he is the lord of his own spirituality (his own spiritual guide), the
master of his own wholeness (his own master) and the sirocco of his
own winds (his own academic reference). Our Imam ash-Shāfi‘ī, may
Allah have mercy on him and be pleased with him, has indicated
that, saying: “In terms of fiqh, the people are dependents of Abū
Ḥanīfah.” May Allah be pleased with them all, have mercy on them
all, and elevate their stations in the uppermost abodes of Paradise
(‘Illiyyūn). e imams adopted the manner of the Greatest Imam
(Abū Ḥanīfah), may Allah have mercy on him, following his words
and verdicts, commenting on his books and transmissions. ey, in
all this, are emulating the Sunnah of the Greatest Prophet ; they
abide by his method, and they are adherents of those inheritors of his
of the people of dhikr. Among them was the exemplary erudite

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scholar of fiqh, Imam Abū’l-Ḥusayn Aḥmad ibn Muḥammad al-
Qudūrī al-Ḥanafī al-Baghdādī, may Allah have mercy on him. He
was born in 362 AH, and is known by the title of al-Qudūrī due to
the sale of pots (qudūr), which is a plural of qidr (pot). He acquired
legal knowledge (fiqh) from his teacher Muḥammad ibn al-Jurjānī,
who acquired it from Abū Bakr ar-Rāzī (al-Jaṣṣāṣ), who acquired it
from Ḥasan al-Karkhī, who acquired it from Abū Sa‘īd al-Barda‘ī,
who acquired it from ‘Alī ad-Daqqāq, who acquired it from Mūsā ibn
Naṣr ar-Rāzī, who acquired it from Imam Abū ‘Abdullāh
Muḥammad ibn al-Ḥasan ash-Shaybānī, who acquired it from Imam
Abū Ḥanīfah, may Allah have mercy on them and be pleased with
them. e leadership of the Ḥanafīs in Iraq came to rest with Imam
al-Qudūrī.
Of the many beneficial works he authored there are the
Mukhtaṣar, and the Tajrīd in matters of disputation, etc. He was of
those who analyse and assess the relative merits of verdicts within a
school of thought (ṣāḥib attarjīḥ). When he authored the Mukhtaṣar,
he took it with him to the House of Allah and suspended it from the
cover of the Ka‘bah and beseeched Allah to place blessings therein
for him, which he was granted, and Allah made his manual to be
acknowledged by the Ummah. Generations transmitted it and
preserved it by means of explanation, study, teaching and translation,
for Allah had placed blessing and general benefit in it. Imam al-
Qudūrī died in Rajab, 428 AH and was buried in Baghdād, may
Allah have mercy on him and render his highest resting place in
Paradise lofty for him.
is imposing manual, the Mukhtaṣar, is popularly known as the
Mukhtaṣar al-Qudūrī, and is characterised by two things:
1. It confidently addresses popular issues within the school
(madhhab) in three hundred and sixty chapters.
2. It abstains from using vague expressions in such a manner that
it presents the wordings with simplicity and ease, so much so that
numerous Ḥanafī masters, may Allah have mercy on them, have said:
“It is the most beautiful manual with the finest form of concision and
marvellousness.” is has been narrated by Ḥājjī Khalīfah in Kashf

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aẓ-Ẓunūn 2/1631, and he said: “It is a strong and authentic text that
is employed by imams and notables.” He himself is of this opinion.
Among the blessings of this Mukhtaṣar there is that there is a
class of legal texts that have been built upon the foundation of the
Mukhtaṣar al-Qudūrī, which include the Tuḥfat al-Fuqahā, by Imam
as-Samarqandi (d. 539 AH), which is distinguished by the manner in
which he mentions the disagreements between the Imam (Abū
Ḥanīfah), the Ṣāḥibān (Imam Abū Yūsuf and Imam Muḥammad)
and (Imam) Zufar, and states the views of (Imam) Malik and (Imam)
ash-Shāfi‘ī, may Allah have mercy on them, in addition to paying
special attention to rational and transmitted evidences. Of them there
is also the book Bidāyat al-Mubtadī, by Imam al-Marghīnānī, as well
as others.
e learned and intellectual brother, the sagacious and
distinguished shaykh, the beloved teacher, Ṭāhir Maḥmood Kiānī,
may Allah protect and preserve him, sent me a sample of his service
to the Mukhtaṣar of Imam al-Qudūrī. I studied what he sent me of
‘e Book of Partnership (Kitāb ash-Sharikah)’ closely, and I found
it to be accurate to a high degree with very succinct elucidation and a
style of superior quality, which indicates maturity of thought,
brilliance of talent and moderation of intuition. I thanked Allah,
Glorified and Exalted is He, for His according success to the right
honourable, erudite, upright and intellectual Shaykh Ṭāhir Maḥmood
Kiānī, may Allah the Exalted safeguard him; nothing from His
treasury is surprising.
Shaykh Ṭāhir (Maḥmood Kiānī) is one of the students of the
erudite, intellectual, learned, legal expert, Allah-fearing, exegete (of
the Noble Qur’ān) and practical scholar, Leader of Islam and the
Muslims (Shaykh al-Islām wa’l-Muslimīn), Shaykh Muḥammad
Imdād Ḥussain Pīrzāda, may Allah increase him in (His) assistance
(to him) and in provisions, and may He let the Ummah derive benefit
from his life.
In conclusion, I ask Allah to accept this work undertaken purely
for His noble sake, that He renders it of immense benefit, and that
He aids our brother Shaykh Ṭāhir Maḥmood Kiānī, may Allah
protect him, for the welfare of the dunyā (world) and the dīn

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(religion), to call others to Him, Glorified is He, (and I ask Allah) to
lead him on the right way and raise him to the lofty station in terms
of knowledge, practice and invitation to the Truth (da‘wah); certainly,
He is the Guide to hitting the mark, He alone suffices us and He is
the Best Guardian; all praise is due to Allah, Lord of all the worlds.
Stated with his tongue and composed with his fingers, by the one
in need of the mercy of his Lord Who is abundantly rich beyond
need, Muḥammad ibn Yaḥyā ibn Muḥammad al-Ḥusaynī an-Nīnowī
ash-Shāfi‘ī, may Allah forgive him, his parents and the believers. 25th
Dhu’l-Qa‘dah, 1430 AH after the Migration of the Beloved Muṣṭafā,
may Allah bless him and his family and grant him peace.

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 INTRODUCTION

FIQH

Meaning and Application

e term fiqh literally means ‘understanding’, ‘comprehension’
and ‘knowledge’, and technically refers to ‘knowledge of derivative
sharī‘ah rulings along with the evidences for them with details both
of the rulings and their evidences’,1 composed and codified from
four recognised sources:
1. Glorious Qur’ān,
2. Noble Sunnah,
3. Consensus (ijmā‘),
4. Analogy (qiyās).
Where explicit evidence is not found in the Noble Qur’ān, it is
sought in the Sunnah of the Messenger Muḥammad , and if not
there then the agreement of Muslims in general, and particularly the
knowledgeable, known as ijmā‘. If these three options do not bring a
result, then the final recourse, known as qiyās, is the return to the
Qur’ān or Sunnah for a similar example that can be applied to the
new issue.
e question of how Consensus and Analogy are arrived at from
the two primary sources is elucidated in this hadith of the Generous
Prophet :
e Messenger of Allah dispatched Mu‘ādh ibn Jabal to
Yemen and asked him how he would adjudicate to which he replied,
“With the Book of Allah.”
e Messenger of Allah asked, “What if you do not find [the
ruling]?”

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 He replied, “With the Sunnah of the Messenger of Allah .”
e Messenger of Allah then asked, “What if you do not find
[the ruling there either]?”
He replied: “I shall practise my reasoning.”
e Messenger of Allah patted him on the chest saying: “All
praise to Allah Who gave success to the messenger of the
Messenger of Allah in achieving what pleases the Messenger of
Allah.”2
Here Sayyidunā Mu‘ādh ibn Jabal mentions the Qur’ān,
Sunnah and his own reasoning as the means of adjudication, but he
refrained from mentioning ijmā‘ (Consensus) because it was not
required during the lifetime of the Prophet of Allah .
In another narrative, Sayyidunā Abdullāh ibn Mas‘ūd says:
“…as from today, whoever is faced with an issue, he should
decide by what is in the Book of Allah and if an affair comes to
him which is not in the Book of Allah, then he should decide
by what His Prophet decided, and if an affair comes to him
that is not in the Book of Allah and His Prophet did not
decide on it, then he should decide by what the Righteous
decided, and if an affair comes to him that is not in the Book
of Allah and His Prophet did not decide on it and the
Righteous did not decide on it, then he should decide using his
own reasoning….”3
In this narration deducing laws from the Qur’ān and Sunnah is
mentioned explicitly, as well as qiyās and ijmā‘, where the Righteous
refers to the Ṣālihūn, the inheritors of, and actors upon, these two
main sources. Following the consensus of those Ṣāliḥūn who are
qualified to exercise ijtihād, is essential for Muslims due to ijmā‘
being the next most important source of decision-making which
carries more weight than the single judgement of qiyās. If there is
consensus on any issue in Islam, then qiyās is irrelevant. ere are
many hadith of the Messenger of Allah that show that the

27
consensus of the Ummah, i.e. as represented by the people of
knowledge capable of ijtihād, cannot be wrong.4
e Generous Qur’ān tells us:
“O you who believe! Obey Allah and obey the Messenger and
those in command among you.” (4:59)5
e majority of the commentators of the Qur’ān and people of
knowledge explain that in this verse obeying Allah means
obeying His commands and prohibitions in the Qur’ān, obeying the
Messenger means obeying him in what he commanded and
forbade, and obeying ‘those in command among you’ means obeying
the amirs, except if their command entails disobedience to Allah
and His Messenger . An interpretation of many of the people of
knowledge including Imam Mālik is that it means obedience to the
people of knowledge. ere is no difference of opinion that we are
obliged to obey the unanimous rulings (ijmā‘) of the ‘ulamā’ and
fuqahā’ who are qualified to make ijtihād.6

Objectives
Fiqh deals with the actions of the legally responsible person
(mukallaf), being graded as definite obligations (farḍ), incumbent
(wājib), prophetic example (sunnah), liked (mustaḥabb), permissible
(mubāḥ), slightly offensive (makrūh tanzīhī), severely offensive
(makrūh taḥrīmī) and prohibited (ḥarām). Fiqh also deals with rules
surrounding actions, such as pre-conditions (sharṭ), prevention
(māni‘), concessions (rukhṣah), endeavour (‘azīmah), as well as valid
(ṣaḥīḥ), corrupt (fāsid), void (bāṭil), discharged at its time (adā’),
delayed (qaḍā’) and repetition (i‘ādah).
Fiqh defines the daily life of the mukallaf according to the
command of Allah , and so knowledge of His commands and
prohibitions is necessary – at least in the fundamentals – and is an
obligation on the mukallaf. e presence of the Beloved Messenger
obviated the need for legal rulings, but after his death, it required
scrupulous knowledge of the Qur’ān and Sunnah which became
increasingly difficult for the new generations of people embracing

28
the dīn of Islam. ere was no difficulty in Madinah as the first
generations continued to observe the social pattern laid down by the
Messenger among his Companions and the succeeding two
generations, but with the spread of Islam to new areas such as Iraq,
Egypt, etc., new situations arose that needed clear knowledge of the
original sources to guide the communities when novel incidents
faced these emerging Muslim societies. e men of knowledge of
the dīn realised the need to maintain its integrity and worked hard
to preserve and gather the sayings and practice of the Messenger
wherever they could find it. Responsibility devolves with each
succeeding generation to preserve our laws in word and spirit. is
can only be done by continually striving to implement, maintain and
purify the teaching that has come to us through impeccable sources.

Compilers
During the revelation of the Noble Qur’ān to the Beloved
Messenger , the Companions memorised it and to a lesser
extent transcribed it. Each revelation contained instruction, teaching
or information concerning issues ranging from historical precedent,
domestic matters, the Unity of God and relations with those outside
of Islam, among many others. is memorisation was extensive,
making the hearts and intellects of the Companions the storehouses
of this knowledge. But as they died and the Ummah grew, new
Muslims did not have the experience of the first generations and
given the depth of the Glorious Qur’ān and the extent of the Noble
Prophet’s actions and words, a need was perceived for gathering
all the material together, and during the early second Hijrī century
scholars emerged who began the arduous task of compiling these
divine and human events and words into books and manuscripts.
is complex and time-consuming task took these compilers
travelling thousands of miles for weeks and months on end, to
acquire sometimes only one hadith that would elaborate a particular
legal position.
Of the many scholars and legal experts that arose, the work of
four survived and remained the most prominent and influential:

29
 • Imam Abū Ḥanīfah: he is an-Nu‘mān ibn ābit ibn Zuṭā ibn
Marzūbān (80 AH/699 CE – 148 AH/765 CE)

• Imam Mālik: He is Mālik ibn Anas ibn Mālik ibn ‘Amr al-
Asba‘ī (93 AH/711 CE – 179 AH/795 CE)

• Imam ash-Shāfi‘ī: He is Abū Abdullāh Muḥammad ibn Idrīs

ash-Shāfi‘ī (150 AH/767 CE – 204 AH/820 CE)

• Imam AḥMAD ibn Ḥanbal: He is AḥMAD ibn Muḥammad

ibn Ḥanbal Abū ‘abdullāh ash-Shaybānī (164 AH/780 – 241
AH/855 CE), may Allah have mercy on them all.
All four Imams developed distinct methodologies of preserving
the laws from the sources available to them. eir means of
analysing evidence and its application varied, and sometimes led to
differences between them. is produced four separate courses
which became known as the madhhabs or schools, leading from,
and returning to, the two great oceans of knowledge.
e general population being less qualified adhered to one school
or the other, depending on political, regional or linguistic factors.
e adoption of the Ḥanafī madhhab as the official methodology by
some of the major Islamic dynasties led to its dominance until the
end of the Caliphates.
e most famous of Imam Abū Ḥanīfah’s pupils are Imam Abū
Yūsuf, Imam Muḥammad ash-Shaybānī and Imam Zufar, may
Allah have mercy on them, and their opinions and legal verdicts
form the substance of Ḥanafī jurisprudence.
In Ḥanafī and non-Ḥanafī texts, the term Ṣāḥibān refers to the
mutual agreement of Imam Abū Yūsuf and Imam Muḥammad, as
opposed to the opinion of Imam Abū Ḥanīfah. Similarly, the term
Ṭarafān refers to the mutual agreement of Imam Abū Ḥanīfah and
Imam Muḥammad, as opposed to the opinion of Imam Abū Yūsuf,
and the term Shaykhān refers to the mutual agreement of Imam

30
Abū Ḥanīfah and Imam Abū Yūsuf, as opposed to the opinion of
Imam Muḥammad. e opinions of Imam Zufar are seldom quoted
without the mention of his name individually. May Allah have
mercy on all of them. is indicates the difference of opinion that
has always existed among the scholars of Islam.

THE MUKHTAṢAR AL -QUDŪRĪ

About the Author
e author of Mukhtaṣar al-Qudūrī,7 the Ḥanafī Jurist, Shaykh
Abū’l-Ḥusayn AḥMAD ibn Muḥammad ibn AḥMAD ibn Ja‘far ibn
Hamdān al-Qudūrī al-Baghdādī, was born in Baghdād in 362
AH/973 CE and died on Sunday, 5th Rajab, 428 AH/1037 CE aged
66.8 known as ‘Abū’l-Ḥusayn’, his first name was AḥMAD and his
father’s name was Muḥammad. He is generally referred to as al-
Qudūrī, an ascription derived either from the selling of pots,9 or to
his hometown, called Qudūrah. Upon his death, he was buried in
his own house, but was later buried next to the grave of the Ḥanafī
jurist, Abū Bakr al-Khwārizmī.
His academic knowledge and fiqh trace back to the Prophet of
Allah, Muḥammad , through this line of teachers:
1. e Prophet Muḥammad ,
2. ‘Abdullāh ibn Mas‘ūd,
3. Alqamah ibn Qays,
4. Ibrāhīm an-Nakha‘ī,
5. Ḥammād ibn Abū Sulaymān,
6. Abū Ḥanīfah an-Nu‘mān ibn ābit,
7. Muḥammad ibn al-Ḥasan ash-Shaybānī,
8. Mūsā ibn Naṣr ar-Rāzī,

31
 9. ‘Alī ad-Daqqāq,
10. Abū Sa‘īd al-Barda‘ī,
11. Abū’l-Ḥasan ‘Ubaydullāh al-Karkhī,
12. Abū Bakr Aḥmad al-Jaṣṣāṣ,
13. Abū ‘Abdullāh Muḥammad ibn Yaḥyā ibn Mahdī al-
Jurjānī.
Imam al-Qudūrī was in the fifth of seven grades of distinguished
jurists in the Ḥanafī madhhab, which is known as the aṣḥāb at-
tarjīḥ,10 indicating his authority amongst legal scholars and jurists.
His academic prominence and proficiency in legal matters
established him as the supreme representative of Ḥanafī scholarship
and law in Iraq.
In terms of hadith narration, he has been referred to as one who
is truthful (ṣadūq) by many prominent scholars, including
Abū’l-‘Abbās Shamsuddīn Aḥmad ibn Abū Bakr ibn Khallikān, al-
Ḥāfz Abū’l-Fidā ‘Imāduddīn Ismā‘īl ibn ‘Umar ibn Kathīr, Ibn
Tagharī al-Bardī, Abū’l-Farj ‘Abdurraḥmān ibn ‘Alī (a.k.a. Ibn al-
Jawzī), Abū’l Ḥasanāt ‘Abdulḥayy ibn Muḥammad ‘Abdulḥalīm
Lakhnawī and ‘Abdulkarīm ibn Muḥammad as-Sam‘ānī.
Abū Bakr al-Khaṭīb al-Baghdādī, the author of e History of
Baghdad (Tārīkh Baghdād), cites the authority of Imam al-Qudūrī
for prophetic narrations he learnt from him.
He authored:
• At-Tajrīd – in seven volumes, discussing the issues of
contention between Ḥanafī and Shāfi‘ī scholars.

• Kitāb at-Taqrīb – compilation of issues with their evidences.

• Sharḥ Mukhtaṣar al-Karkhī – commentary on the

compendium by Imam al-karkhī.

32
 • Sharḥ Adab al-Qāḍī – commentary on the book on the
Islamic legal system, by Imam Aḥmad Abū Bakr al-Khassāf.

• Mukhtaṣar al-Qudūrī – the compendium of fiqh based on

Ḥanafī principles of jurisprudence and legal methodology,
also known as al-Kitāb, which bears his name.

About the Book

e term Mukhtaṣar denotes anything of a summary or abridged
nature and many of these précis works appeared in the early stages
aimed at guiding the mukallaf in his daily routine without regard for
citing the sources. ough the Mukhtaṣars do not cover every aspect
of daily life, they do reflect what the authors considered essential.
For example, in al-Jāmi‘ aṣ-Ṣaghīr, Imam Muḥammad ash-Shaybānī
(132 AH – 189 AH), may Allah have mercy on him, did not
describe ablution (wuḍū’) or prayer (ṣalāh), but rather, focused on
matters such as the violations of commands. ese summaries
extracted from the denser and more comprehensive works of Islamic
law more common issues arising among the people in order to
address them promptly and precisely.
In the Ḥanafī madhhab, the first to use the term Mukhtaṣar was
Imam Aḥmad aṭ-Ṭaḥāwī (228 AH – 323 AH), for his book known
as Mukhtaṣar aṭ-Ṭaḥāwī . Other Mukhtaṣar style works in the
Ḥanafī School of legal interpretation include:
• Al-Jāmi‘ aṣ-Ṣaghīr (Imam Muḥammad ash-Shaybānī, d. 189
AH)

• Al-Kāfī (Ḥākim ash-Shahīd al-Marwazī, d. 334 AH)

• Mukhtaṣar al-Karkhī (Imam al-Karkhī, d. 340 AH)

• Mukhtaṣar al-Jaṣṣāṣ (Imam al-Jaṣṣāṣ, d. 370 AH)

• Bidāyat al-Mubtadī (Imam Burhānuddīn al-Marghīnānī, d.

33
 593 AH)

• Majma‘ al-Baḥrayn (Imam as-Sā‘ātī, d. 694 AH)

• Kanz ad-Daqā’iq (Imam an-Nasafī, d. 710 AH)

All of the above are Mukhtaṣars although some are not titled as
such.

Amongst the Mukhtaṣars, the one authored by al-Qudūrī is

prominent and it is historically the most popular and important text
in the entire literature of Ḥanafī fiqh. is is a tall claim to make,
but a just one. All other later books of Ḥanafī fiqh are either based
on this book, or revolve around it in one way or another.
ere are three main types of relationship in Islamic law, which
are those between:
1. e individual and the Creator,
2. e individual and the government,
3. e government and other states.
is book covers all three; personal affairs, public matters,
worship, business transactions, warfare, judicial cases, politics,
matrimony and legal qualification, addressing approximately 12,500
issues.
e Mukhtaṣar al-Qudūrī has been taught for centuries in
religious schools across the Muslim world as one of the foundational
manuals of study in Ḥanafī dominated areas and continues to be a
source of fundamental knowledge. It has remained a classic in fiqh
in general, and in Ḥanafī fiqh in particular, for nearly a thousand
years. It has been commented upon by ‘Abdulghanī al-Ghunaymī
al-Maydānī (d. 1298 AH), in his book known as al-Lubāb fī Sharḥ
al-Kitāb, by Abū Bakr ibn ‘Alī al-Ḥaddādī (d. 1397 AH), in al-
Jawharat an-Nayrah, as well as Burhānuddīn al-Farghānī al-
Marghīnānī, in al-Hidāyah.
Imam al-Qudūrī, it is reported, took this book with him to the
Ka‘bah and attached it to its cloth hanging, beseeching Allah to

34
bless it. His prayer, the narration says, was accepted.
is book does not provide evidence for the verdicts contained in
it, as with most Mukhtaṣars, as those proofs can be found in more
detailed works and commentaries. e raison d’être of the
Mukhtaṣar is to provide a basic manual of belief and behaviour with
a dichotomous stating of the dos and don’ts to enable the general
populace to grasp the essentials of the dīn in a simple form that is
easy to remember.
Although the Mukhtaṣar was designed for its readers to extract
relevant material, it can become complicated when seemingly
conflicting phrases or vague directives are encountered and the need
for a guide to explain these anomalies is still required.
Over the centuries few books could compete or even co-exist
with the Mukhtaṣar in success and dominance but in modern times
the introduction of more up-to-date authorship in Ḥanafī fiqh,
being relatively easier to read and providing legal references has
caused the Mukhtaṣar to be overshadowed to some extent and these
works have undermined its supremacy. Sadly it is not surprising to
find among modern-day ‘scholars’ those who have never come across
the Mukhtaṣar al-Qudūrī.
All is not lost however, as in the Indo-Pakistan subcontinent it is
the most revered text after the Saḥīḥayn of al-Bukhārī and Muslim.
Madrasahs continue to teach it at foundational level, followed by the
more detailed al-Hidāyah and Kanz ad-Daqā’iq, etc. e continued
dominance of the Mukhtaṣar in Ḥanafī-populated areas has
contributed not only to its survival, but also its promulgation around
the world where Ḥanafīs migrated to, such as South Africa, the
USA and the UK. Madrasahs established by the Indian and
Pakistani migrant communities provide religious and Islamic legal
information to expatriates as well as locals, and today (2010), there
are many institutions based upon the Ḥanafī method of
jurisprudence in non-Muslim countries. ey all teach Islamic law
based upon the Mukhtaṣar al-Qudūrī, be it directly from the
Mukhtaṣar or from texts authored later. As far as dedicated Islamic
schools, like Dār al-‘Ulūm Muḥammadiyyah Ghawthiyyah, in

35
Bhera, Pakistan, or Jāmi‘a al-Karam, in Retford, Nottinghamshire,
UK, are concerned, the Mukhtaṣar al-Qudūrī, is taught as a core
subject at foundation level.

e Translation
A number of versions of the text of the Mukhtaṣar al-Qudūrī are
available today with only minor additions, omissions, textual
displacement, and variance in grammatical structure and gender. I
have based my text and translation on the version that is published
by Qadīmī Kutub Khānah, Karachi, Pakistan, due to its popularity. I
have not confined myself to that version absolutely, but have
diverged from some words and phrases in the text, such as
grammatical gender issues (where I opted in favour of, or distinct
from, the Arabic text). I have borrowed text from other versions of
the Mukhtaṣar that I thought more apt. I inserted my own
subheadings where I considered appropriate in order to make the
book more usable by modern readers. As far as research and
prudence have guided me, I have tried to provide an accurate
interpretation of the text, which is not necessarily textually precise
according to the original Mukhtaṣar, as utmost precision is
impossible – as is evident from the disparity of the various existing
versions. Where ambiguities, complexities and intricacies lay in the
translation of the Mukhtaṣar, I strove to maintain as pure a
translation from the Arabic text as possible. I felt the necessity for
further explanation in order to clarify points to the reader, so I
added footnotes according to my understanding. e extra-textual
content, which refers to implied meanings and not what is written
in the original, is authentic as far as my understanding of the
fundamentals of fiqh is concerned, and the reader should not discard
any version of the Mukhtaṣar as inauthentic because of this, but
accept all versions as true in their meanings.
e text of the Mukhtaṣar is not written in a fluent paraphrased
style, but is staggered from one ḥukm (legal command) to another.
Frequently, and quite noticeably, Imam al-Qudūrī will switch from
a ‘command to do’ to a ‘command to refrain from doing’, and then
return to the former immediately or at a later stage in the chapter.

36
In a modern context, this may seem a little odd and a little
confusing to some, but the nature of the Mukhtaṣar reflects the
demands of those times as well as the manner in which the author
produced his content. We have to respect this and accept it as far as
maintenance of the original remains a priority. While translating it
into English, I found it impossible to paraphrase in order to render a
flowing piece as I consider this is only possible if one is willing to
alter the sequence of Imam al-Qudūrī’s authorship which I was not,
as I believe Imam al-Qudūrī’s unstructured content should remain
as it is, unless it be written as a fresh fiqh manual based on the
Mukhtaṣar.
ere is no such thing as ‘the perfect translation’ as nothing can
be rendered from one language to another exactly. All translations
are interpretations reflecting the intention of the original work and
are heavily influenced by the understanding of the interpreter. My
own case is the same. My rendition aims to provide the
understanding of Imam al-Qudūrī’s Mukhtaṣar according to what
he intended by it, but it may also reflect my own understanding,
either intentionally or otherwise. is is the main reason why I have
striven to maintain purity in translation rather than follow a
contemporary pattern – in order to present the work of the author
and not mine.

As far as I have attempted to interpret the knowledge of divine

wisdom into the English language, as transmitted to us by Imam al-
Qudūrī, may Allah have mercy on him, this translation is not
absolute, and inconsistencies are inevitable and it would please me if
readers would point out any errors of whatever nature. If my
rendition is flawed and contains mistakes, they are entirely mine,
and no-one is to blame but myself, but if I have translated with
accuracy and precision, then praise belongs to Allah , Who is
Complete and Perfect in every way; Who grants perfection; Who is
sheer perfection.
I do not believe myself qualified to undertake such a crucial and
sensitive task as translating the Mukhtaṣar al-Qudūrī. I did so at the

37
insistence of some of my students of fiqh who encouraged me.
roughout the task, I seldom forgot my spiritual guide,
Commentator of the Noble Qur’ān, Religious inker of the
Twentieth Century and Luminary of the Ummah, Justice Shaykh
Abū’l-Ḥasanāt Muḥammad Karam Shāh, may Allah have mercy on
him, who took up the task of teaching others to teach, and
transmitting divine wisdom to generations after him. is prophetic
practice now continues with his noble son, Shaykh Muḥammad
Amīn al-Ḥasanāt al-Qurashī, whose service to Islam and the
Muslims of Pakistan can only be rewarded by Allah . I am greatly
inspired by my teacher and mentor, Shaykh Muḥammad Imdād
Ḥussain Pīrzāda, principal of Jāmi‘a al-Karam, UK, whose relentless
efforts in upholding the truth and disseminating the fragrance of
Islam stand prominent in the history of the UK. I thank all my
teachers, especially Mawlānā Abū’l-In‘ām Muḥammad ‘Abdulbārī
Chishtī, whose love for the Beloved knows no bounds, in taking me
by the hand and leading me on the Straight Path at an early age. I
consider myself indebted to Professor ‘Imrān Aḥsan Khān Nyāzee,
translator of al-Hidāyah and Bidāyat al-Mujtahid, etc. Who has
been a figure of inspiration to me ever since I studied my first
subject under him in the Faculty of Shari‘ah and Law at the
International Islamic University, Islamabad, Pakistan.
My gratitude would be incomplete if I do not extend it to those
responsible in assisting this project, namely, Dr. Abia Afsar-
Siddiqui, who helped in the publication and distribution of this
work, and Ḥājj ‘Abdaṣṣamad Clarke, who edited this publication
and supported me with his invaluable suggestions.
I thank my wife who tolerated my endless hours spent inside
books and at the computer and for her encouragement towards its
completion; may Allah bless her. May He bless my brothers –
Sājid, Anṣar and Aẓhar – with the true wisdom and observance of
Islam. May He bestow upon my children – Zayn, Qudsia and
Mahdia – true understanding and adherence to Islamic beliefs and
teachings, and cause them not to stray from the Straight Path.

38
Finally, I beseech Allah to bless my late father, Ḥājī Muḥammad
Tāj ‘Alī Kiānī (d. 19 April, 1995 CE/ 20th Dhu’l-Qa‘dah, 1415
th

AH), who led me to school and to the masjid at an early age, which
proved pivotal in my present life. Sadly, my beloved and saintly
mother, whose prayers in my favour proved more effective than my
own endeavours, passed away just before the publication of this
book, in the luminous month of the Prophet’s birth, on 18th
Rabī‘ al-Awwal, 1431 AH/4th March, 2010 CE, may Allah have
mercy on her, having attended many a Mawlid gathering in her last
few days. May Allah bless them both with forgiveness of all
major and minor sins and the best of abodes in the ākhirah.

“My Lord! bestow on them Your mercy just as they cherished me

in childhood.” (17:24)
I dedicate this translation to them both; may Allah accept it
from me on their behalf. Āmīn.
We thank Allah for the fact that this translation was completed
almost 1000 years to the day after the death of Imam al-Qudūrī,
may Allah have mercy on him, on 5th Rajab, 428 AH. e
translation was completed in Rajab, 1428 AH ( July 2007).
Finally, for his favours to humanity in particular, and to the
entire creation in general, I express profound gratitude and invoke
endless salutations and blessings upon the Final Messenger of Allah,
Muḥammad al-Muṣṭafā , for ever and ever.
Ṭāhir Maḥmood Kiāni

39
 ṬAHĀRAH – PURIFICATION

Allah, exalted is He, said:

“You who have īmān! when you get up to do

ṣalāh, wash your faces and your hands [and
your arms] to the elbows, and wipe over your
heads, and [wash] your feet to the ankles.”
(Al-Mā’idah 5:6)

WUḌŪ’ – MINOR RITUAL PURIFICATION

40
 e Obligations (Farā’iḍ) of Wuḍū’
Hence, the obligations of Purification are washing the three
limbs,1 and wiping (masḥ) the head.
e elbows and the ankles are comprised in the obligation of
washing, according to our three ‘ulamā’,2 contrary to [the opinion] of
Zufar, may Allah have mercy upon them.
e prescribed obligation in wiping the head is the extent of the
forelock [and that is a quarter of the head] according to what al-
Mughīrah ibn Shu‘bah reported, that the Prophet arrived at the
camp of a tribe and he passed water. He then performed wuḍū’ and
wiped over the forelock and his khuffs3 (Muslim, an-Nasā’ī, Aḥmad,
Abū Dāwūd and others).

e Sunnahs of Purification [sought in Wuḍū’]

1. Washing both hands thrice before entering them into the pot

41
 [of water] when the person performing wuḍū’ wakes from
sleep,

2. Mentioning the name of Allah at the commencement of

wuḍū’,

3. Using the toothstick,

4. Rinsing the mouth (maḍmaḍah),

5. Rinsing the nose (istinshāq),

6. Wiping both ears,

7. Combing the beard [with wet fingers],

8. Combing the fingers [of each hand with wet fingers of the
opposite hand],

9. Repetition of the washing up to three times.

Matters that are Recommended (Mustaḥabbāt)

in Wuḍū’
It is recommended for the person making wuḍū’ that:
1. He intends Purification,

2. He covers [the entire] head with wiping,

3. He performs wuḍū’ in order and commences with what Allah

42
 mentions first,

4. [He commences] with the right [limbs first],

5. [He does the acts] in succession, and

6. He wipes the [nape of the] neck.

at which Nullifies Wuḍū’

4
1. All that exits from the two passages,

2. Blood, pus and serum – [such that] when they exit from the
body they flow to a place that is subject to the rule of
Purification,
5
3. Vomit, when it is a mouthful,

4. Sleep, when the person is lying down, reclining, or leaning

on something such that if it was removed he would fall over
because of it,

5. e intellect being overcome by fainting or insanity, and

6. Laughter in every prayer that consists of bowing (rukū‘) and

43
 prostration (sujūd).

GHUSL – MAJOR RITUAL PURIFICATION

e Obligations of Ghusl
1. Rinsing the mouth,
2. Rinsing the nose, and
3. Washing the entire body.

e Sunnahs of Ghusl
e sunnahs of ghusl are that:
1. e person performing the ghusl commences by washing
both his hands, and

2. His genitalia,

3. He removes the physical impurity (najāsah) if there is any

upon his body,

4. en he performs wuḍū’ as he would perform wuḍū’ for the

prayer, except [the washing of ] his feet,

44
5. He pours water over his head and [over] his entire body,
thrice,

6. He moves away from that place [where he performs the

ghusl] and washes his feet,

7. It is not [incumbent] on women to undo their plaits in ghusl

if the water [easily] reaches the roots of the hair.

e Factors which make Ghusl Obligatory

1. e ejaculatory discharge of spermatic fluid with passion by
the man and the woman,

2. e meeting of both the external genitals [in sexual

intercourse] [even] without ejaculation,

3. Menstruation (ḥayḍ), and

4. Postnatal bleeding (nifās).

When Ghusl is Sunnah

e Messenger of Allah set ghusl as a sunnah for:
1. e Friday prayer,

45
 2. e two ‘Īds,

3. Iḥrām (entering upon ḥajj or ‘umrah), and

4. [Staying at] ‘Arafah.

ere is no ghusl [obligatory] in [the cases of ] madhy (pre-
seminal or pre-ejaculatory fluid) and wadī (post-urinal fluid), but
wuḍū’ is [required] for them.

Water
Purification from ḥadath (ritual impurity) is valid with water
from:
6
1. e sky,
7
2. River valleys,

3. Springs,

4. Wells, and

5. Seawater.

Purification is not permitted with water that has been squeezed

out from trees (i.e. sap) or fruits8 (e.g. fruit juice etc.), nor with water

46
in which something alien is dominant and which has changed it from
the natural state of water, like beverages, vinegar, broth, legume soup,
rosewater and carrot juice.

Purification is permitted with water in which something pure is

mixed and [which] has changed [only] one of its properties, like
floodwater and water in which saltwort, soap and saffron are mixed.

When physical impurity falls into any [type of ] still water, wuḍū’
is not permitted with it, be [that water] less or more [in quantity],
because the Prophet has instructed [us] to protect water from
impurity, for he said:
“None of you should ever urinate in standing water, and neither
should he bathe in it for [the removal of ] janābah (major ritual
impurity).”
(Al-Bukhārī, Ibn Mājah, Abū Dāwūd)

47
 He [also] said:
“Whenever any of you wakes from his sleep, he must not dip his
hand into the pot [of water] until he has washed it9 three times, for
he does not know where his hand spent the night.”
(Muslim, Abū Dāwūd, an-Nasā’ī, Ibn Mājah, Aḥmad, ad-Dāraquṭnī)

With regards to running water, when physical impurity falls into

it, [the performance of ] wuḍū’ is permitted with it, [provided] any
effect of it is not noticeable, because [physical impurity] does not
settle with the flowing of water.

When physical impurity falls into either of the two sides of a large
pond, in which one of the two sides does not move when one causes
motion on the other side, then wuḍū’ is permitted at the other side,
because it is evident that the physical impurity has not reached it.

48
 e death in water of that which does not have blood flowing in
it, like bugs, flies, wasps and scorpions, does not spoil10 the water nor
does the death in water of that which lives in water, like fish, frogs
and crabs, spoil the water.

Used Water

e use of previously used water is not permitted for Purification

from ritual impurities.
Previously used water is all water with which a ritual impurity has
been removed, or that has been used on the body for the purpose of
[seeking] nearness [to Allah].

On Tanning

Every hide becomes pure when it is tanned; prayer is permitted on

it, and [the performance of ] Wuḍū’ is permitted with it, except
[with] the hides of swine and human beings.

e hair and bones of the carcass are pure.

On Wells

49
 When a physical impurity falls into a well, it is taken out, and
purification [of the well is achieved by] draining whatever water is in
it.
If a mouse, sparrow, wagtail, king crow or gecko dies in [the well],
between twenty to thirty buckets are emptied out from it, depending
on the largeness or smallness of the bucket.11

If a pigeon, chicken or cat dies in it, between forty to fifty buckets

are emptied out from it.
If a dog, goat or human being dies in it, all of the water that is in
[the well] is drained.

If the animal has become bloated in it, or has putrefied,

everything in [the well] is drained, [irrespective of whether] the
animal is small or large.

50
 e number of buckets is reckoned according to the medium-
sized bucket used for wells in the lands. If [the water is] emptied out
with a bucket of large volume which is more capacious than the
medium-sized bucket, it is calculated according to that.

If the well is spring-fed, and is not drainable, and it is obligatory

to drain whatever is in it, they take out the equivalent of whatever
water is in it. It has been reported by Muḥammad ibn al-Ḥasan, may
Allah have mercy on him, that he said, “Between two hundred to
three hundred buckets are emptied out of it.”

If a dead mouse or something else is found in the well, and they

do not know when it fell in, and it has not become bloated nor has it
putrefied, then they are to repeat the prayers of a day and a night if
they had performed Wuḍū’ from it, and they are to wash everything
that its water had come in contact with.

51
 If it had become bloated or had putrefied, then they are to repeat
the prayers of three days and nights, according to a saying of Abū
Ḥanīfah, may Allah have mercy on him. Abū Yūsuf and
Muḥammad,12 may Allah have mercy on them, said that they do not
have to repeat them until they ascertain when it fell in.

Leftover Water

Water leftover (su’r) by a human being and by [an animal] the

meat of which is [legally] eaten,13 are both pure.
Water leftover by dogs, pigs and predatory animals is impure
(najis).
Water leftover by cats, stray chickens, birds of prey and of those
creatures which inhabit houses, for example snakes and mice, is [all]
disapproved (makrūh).

52
 Water leftover by donkeys and mules is doubtful. erefore, if any
person does not find anything other than this [type of water], he
performs wuḍū’ with it and [also] performs tayammum (dry
ablution), and it is valid for him to commence with either of the
two.14

53
 TAYAMMUM – DRY ABLUTION

Stipulations for the Validity of Tayammum

1. Someone who does not find water while travelling, or

2. While outside the city, and there is approximately a mile or

more between him and water, or

3. Someone who does find water but is ill and is afraid that, if
he uses the water, his illness will be aggravated, or

4. Someone who is junub (major ritually impure in need of

ghusl) who fears that if he bathes with water, the cold will
kill him or make him ill, then:
He performs tayammum with clean earth (ṣa‘īd). (Al-Mā’idah
5:6)

e Method of Tayammum

54
 Tayammum is [performed by] two strokes [on the ṣa‘īd]:
1. With one of which one wipes the face, and

2. With the other [he wipes] his two hands [and arms] up to
the elbows.
Tayammum is the same in [the cases of ] janābah and ḥadath.15

According to Abū Ḥanīfah and Muḥammad,16 may Allah have

mercy on them, tayammum is valid with everything which is of the
genus of earth, like soil, sand, stones, gypsum, lime, kohl and arsenic.
Abū Yūsuf, may Allah have mercy on him, said, “It is only valid
with soil or sand in particular.”

e intention is an obligation (farḍ) in tayammum, and

recommended for wuḍū’.

at which Nullifies Tayammum

55
 Everything that nullifies wuḍū’ nullifies tayammum.17
Sighting water also nullifies it, when one is able to use it.18
Tayammum is only valid with pure clean earth.

e Search for Water

Someone who does not find water but does hope to find it during
the last time [of the prayer] is recommended to delay the prayer up
until the end of its time. en, if he finds water, he performs wuḍū’
and prays, otherwise he performs tayammum [and prays].
Whilst in tayammum, one performs whatever obligatory and
supererogatory prayers one wants.

Tayammum is valid for someone in good health who is resident,

[in the case] when a funeral is present and the walī (heir) is someone

56
other than himself, and he fears that he will miss the funeral prayer if
he becomes occupied with purification [with water i.e. wuḍū’ or
ghusl], then he performs tayammum and prays. It is similar for
someone who is present at ‘Īd prayer and fears that he will miss the
‘Īd [prayer] if he becomes occupied with purification [with water].

However, if someone is present at the Jumu‘ah and fears that if he

occupies himself with purification [with water], he will miss the
Jumu‘ah, [nevertheless] he performs wuḍū’; then if he catches the
Jumu‘ah, he prays it, but otherwise he prays ẓuhr as four [rak‘ahs].
Likewise, if the time becomes tight and he fears that he will miss the
time [of that specific prayer] if he performs wuḍū’, [then] he does not
perform tayammum but performs wuḍū’ and prays his missed prayer.

If a traveller forgets [that he had] water during his journey and

performs tayammum and prays, and then remembers the water still
within the time [of that prayer], he does not repeat his prayer [with
wuḍū’], according to Abū Ḥanīfah and Muḥammad, may Allah have
mercy on them. Abū Yūsuf, may Allah have mercy on him, said that
he repeats [the prayer].

57
 It is not incumbent on someone who is performing tayammum [as
a traveller] to search for water if he is not inclined to believe that
there is water nearby, but if he is inclined to believe that there is
water [nearby] then he is not permitted to perform tayammum until
he has searched for it.

If his companion has some water with him, one asks him for it
before performing tayammum; then if he refuses it, one performs
tayammum and prays.

MASḤ – WIPING OVER KHUFFS

Its Ruling

Wiping over khuffs is valid, by the sunnah, from every ritual

impurity that necessitates wuḍū’, when one dons khuffs while

58
[ritually] pure, and thereafter becomes ritually impure. If one is
resident, he wipes [over his khuffs] for [a maximum of ] a day and a
night,19 and if he is travelling, then he wipes [over his khuffs] for [a
maximum of ] three days and nights.

Commencement [of wiping] follows the occurrence of ritual

impurity.

Method of Wiping

Wiping over the khuffs is made upon their outer [part], in lines
[drawn] with fingers. One begins from the toes towards the shin. e
obligation20 in that [wiping] is the extent of three fingers from the
fingers of the hand.

Wiping is not valid over a khuff in which there is a tear through

which the extent of three toes are exposed, but if it is less than that,
then it is valid.

59
 Wiping over khuffs is not permitted for someone for whom ghusl
is obligatory.

at which Nullifies Wiping

Whatever nullifies wuḍū’ nullifies wiping. e removal of the

khuff also nullifies it, and so does the expiry of the period [of
wiping].

Issues Pertaining to the Duration of Wiping

When the period [of wiping] elapses, he removes both of his

khuffs, washes both of his feet and [then he is permitted to] pray. e
repetition of the rest of the wuḍū’ is not incumbent on him.
Whoever begins wiping [over khuffs] while resident, then travels
before completion of one day and one night, performs the wiping for
the complete three days and nights.21
Whoever begins wiping [over khuffs] while travelling, then takes
up residence:
1. If he has performed wiping for one day and one night or

60
 more, the removal of his khuffs is incumbent on him,

2. But if the wiping had been done for less than [a day and a
night], then he may complete the wiping for a day and a
night.
Whoever wears an overshoe (jarmūq) over the khuff [may] wipe
over it.

at over which Wiping is not Valid

Wiping over socks is not valid, unless they are made of leather or
they are soled. e two of them,22 may Allah have mercy on them,
said that it is valid [to wipe over socks] when they are thick and do
not absorb water.
It is not valid to wipe over a turban, a cap, a veil or gloves.
It is permitted [to wipe] over splints,23 even though they were
fastened without [prior] wuḍū’. If they fall off without [the wound]
healing, the wiping does not become void, but if they fall off after
healing, [the wiping] becomes void.

HAYD – MENSES

 D fM
61
 e Duration of Menstruation

e minimum [duration] of menstruation (ḥayḍ) is three days and

nights,24 so whatever is less than that is not menses, but chronic
menstrual bleeding (istiḥāḍah).
Its maximum [duration] is ten days, so whatever exceeds that is
[also] istiḥāḍah.

Colour

During the days of menstruation, whatever the woman sees of

redness, yellowness and darkness [of discharge], is menses. [e
menstruation continues] until she sees proper whiteness.

On its Legal Ruling

Menstruation absolves the menstruating woman of the obligation

to pray and it makes fasting ḥarām for her. She must make up (qaḍā’)
the fast but does not have to make up the [missed] prayer.

62
 She does not enter the mosque nor does she perform ṭawāf of the
House [of Allah] (Ka‘bah). Her husband does not approach her [for
sexual intercourse]. e recitation of the Qur’ān is not permitted for
the menstruating woman nor for the junub. Touching the muṣḥaf
(Qur’ān) is not permitted for someone who is in the state of minor
ritual impurity requiring wuḍū’ (muḥdith), unless he holds it by its
wrapper.

When the menstruation ceases in less than ten days, sexual

intercourse is not permitted with her until she takes a bath, or when
the time of a complete prayer has passed by her. But if the bleeding
ceases in ten days, sexual intercourse is permitted with her before
[she does] the ghusl.
When [a period of ] purity (ṭuhr) intervenes between two
[separate] bleeding [periods] within the period of menstruation, then
it is like continuous bleeding.25
e minimum [period of ] purity is fifteen days, and there is no
limit for its maximum.

Istiḥāḍah – Chronic Menstrual Bleeding

63
 e bleeding of istiḥāḍah is what the woman sees:
1. [For] less than three days, or

2. For more than ten days.

On its Legal Ruling

e ruling of [istiḥāḍah] is [the same as] the ruling of nosebleed;

it does not prevent prayer, or fasting or sexual intercourse.
When the bleeding exceeds ten [days] and the woman has a
known cycle [of menstruation and purity], she refers to the days of
her cycle.26 Whatever exceeds that [cycle] is istiḥāḍah.
If [a minor] commenced her puberty in the state of istiḥāḍah, her
menses are ten days of each month and the remainder is istiḥāḍah.

64
 e woman experiencing istiḥāḍah, someone who suffers from
urinary incontinence, a continuous nosebleed or a wound that does
not cease [bleeding or discharge of other matter] all perform wuḍū’
for the time of every prayer and pray with that wuḍū’, at that time,
whatever obligatory and supererogatory [prayers] they wish, and
when the time elapses, their wuḍū’ becomes void, and the renewal of
the wuḍū’ for the next prayer is incumbent on them.

Nifās – Postnatal Bleeding

Postnatal bleeding is the blood that emerges following childbirth.

e blood which the pregnant woman sees, and what a woman sees
during her delivery, before the emergence of the child, is istiḥāḍah.

ere is no definition of the minimum [period] of postnatal

bleeding, but its maximum is forty days. Whatever exceeds that is
istiḥāḍah.

65
 When the bleeding extends beyond forty [days], and this
[particular] woman has given birth before and has a [regular] cycle in
postnatal bleeding, she is to refer to the days of her [regular] cycle. If
she does not have a [regular] cycle, then her postnatal bleeding is
forty days.27

Whoever gives birth to twins in one pregnancy, her postnatal

bleeding is whatever blood exits following the first child, according to
Abū Ḥanīfah and Abū Yūsuf, may Allah have mercy on them, but
Muḥammad and Zufar, may Allah have mercy on them, said that
[postnatal bleeding is] from the second child.

IMPURITIES AND THEIR CLEANSING

66
 e purification of physical impurity from the body of the
worshipper, his clothes and the place upon which he prays is
obligatory.

It is permitted to purify physical impurity with water and with

every liquid [with which] its removal is [practically] possible, such as
vinegar and rosewater. When physical impurity that has body, comes
into contact with a khuff [or a shoe] and dries [upon it], and then
one rubs it on the ground, prayer is permitted in it.

Semen is an impurity whose wetness is to be washed, but if it

dries on the garment then scraping it is sufficient for it. When
physical impurity comes into contact with a mirror or a sword, it is
sufficient to wipe them both. If physical impurity falls on the ground,
dries in the sun and its traces go away, then prayer is permitted on its
location, but tayammum is not allowed from [that place].

Heavy and Light Filth

67
 Prayer is permitted when heavy filth (najāsah mughallaẓah), like
blood, urine, faeces and wine, comes into contact with someone, to
the extent of the size of a dirham or whatever is less than that. If [the
heavy filth] is more [than this amount, then] prayer is not permitted
[with it].

If light filth (najāsah mukhaffafah), like the urine of [an animal]

whose meat can [legally] be eaten, comes into contact with him, then
prayer is permitted with it as long as it does not reach [the extent of ]
a quarter of the garment.

Visible and Invisible Filth

Purification of physical impurity, the washing of which is

obligatory, is of two types:
1. Whatever has a visible substance, its cleansing is [deemed to
be] the removal of its substance, unless such traces remain
which are difficult to remove,

68
 2. Whatever does not have a visible substance, its cleansing is
that it be washed until the one washing is inclined to believe
that it is now pure.

Istinjā’ – Cleansing the Excretory Passages

Istinjā’ is sunnah.
Stones, clods and [suitable] alternatives are sufficient for it.
One rubs it until [the area] is clean, and there is no prescribed
number [of stones or rubbings] for it.
Washing it with water is better [and] if the physical impurity
exceeds its orifice, [then nothing] other than water and liquids are
permitted for its removal.
Istinjā’ is not performed with:
1. Bones,

2. Dung,

3. Food, or

4. e right hand.

69
 ṢALĀH – PRAYER

e Timings of Prayer

e beginning of the time of fajr is when the second fajr (dawn) rises,
and that is the whiteness that spreads across the horizon. e end of the
time [of fajr] is as long as the sun has not yet risen.28

e beginning of the time of ẓuhr is when the sun declines [from the
meridian]. e end of its time, according to Abū Ḥanīfah, may Allah have
mercy on him, is when the shadow of everything becomes twice its size,
excluding the [normal] shade at midday. Abū Yūsuf and Muḥammad, may
Allah have mercy on them, however, said that [the end of the time of ẓuhr]
is when the shadow of everything becomes [equal to] its size.

e beginning of the time of ‘aṣr is when the time for ẓuhr has expired,
according to either statement of the two [preceding statements], and the
end of its time is as long as the sun has not set.

70
 e beginning of the time of maghrib is when the sun has set, and the
end of its time is as long as the twilight (shafaq) has not departed, and that
is the whiteness that is seen on the horizon after the redness according to
Abū Ḥanīfah, may Allah have mercy on him, but Abū Yūsuf and
Muḥammad, may Allah have mercy on them, said that [twilight] is the
redness.

e beginning of the time of ‘ishā’ is when the twilight departs, and the
end of its time is as long as the second fajr has not appeared.

e beginning of the time of the witr [prayer] is after ‘ishā’ [prayer], and
the end of its time is as long as the fajr has not appeared.29

Recommended Times for Prayer

It is recommended:

71
 1. To brighten the fajr [prayer],30
31
2. To cool the ẓuhr [prayer] in the summer, and to hasten it in the
winter,

3. To delay the ‘aṣr [prayer] for as long the sun does not change [its
colour],32 and

4. To hasten maghrib [prayer],

5. To delay the ‘ishā’ [prayer] up until just before one-third of the

night.
In the case of the witr [prayer], it is recommended for someone who is
accustomed to performing the prayer of the night,33 that he delays the witr
[prayer] to the end of the night. If he is not confident on waking up [for it],
he performs the witr [prayer] before sleeping.

ADHĀN – THE CALL TO PRAYER AND ITS

RULING

Adhān is sunnah for the five [daily] prayers and for the Jumu‘ah prayer,
[but] not for [prayers] besides those.34
ere is no modulation (tarjī‘) in it.
One35 adds [the words] “aṣ-ṣalātu khayru’m-mina’n-nawm – Prayer is
better than sleep,” twice after [saying, “ḥayya ‘alā]’l-falāḥ – [Hurry towards]
success,” in the adhān of fajr.

72
 e iqāmah36 is similar to the adhān, except that one adds “qad qāmati
’s-ṣalāh – prayer has been established,” twice after “ḥayya ‘alā ’l-falāḥ” in it.

One says the adhān leisurely and is rapid in the iqāmah.

One faces the qiblah37 for both [the adhān and the iqāmah], but when
[the mu’adhdhin] reaches the [word of ] aṣ-ṣalāh (in “ḥayya ‘alā ’ṣ -ṣalāh”)
and al-falāḥ [in “ḥayya ‘alā ’l-falāḥ”], he turns his face towards the right and
the left [respectively].

One calls the adhān for the missed prayer and [also] says the iqāmah. If
someone has missed many prayers, he calls the adhān for the first [prayer]
and says the iqāmah, and for the second, he has the choice; if he wants, he
calls the adhān and says the iqāmah, or, if he wants, he restricts himself to
the iqāmah [only].

One ought to call the adhān and say the iqāmah in [the state of ] purity,
but it is permitted if one calls the adhān without wuḍū’. However, it is

73
disapproved [for one] to say the iqāmah without wuḍū’, or to call the adhān
whilst junub.
One is not to call the adhān for a prayer prior to the entry of its time,
except for fajr according to Abū Yūsuf, may Allah have mercy on him.

PRECONDITIONS OF PRAYER

It is obligatory on the worshipper (muṣallī):

1. To give precedence to purity from ritual and physical impurities,
according to what we have mentioned earlier [in the last chapter],
2. To conceal his nakedness (‘awrah),

e nakedness of a man is whatever is below the navel to the knee – the

knee is [included in] the nakedness but not the navel.

All of the body of a free woman is nakedness, except her face and her
two hands.

Whatever is nakedness for a man, that is [also] nakedness for a slave-

woman, as well as her belly and her back. Anything else of her body is not

74
nakedness.

Whoever does not find that with which he may remove the physical
impurity, prays with [the physical impurity], and he is not obliged to repeat
the prayer.

Whoever does not find garments, prays naked, seated, indicating the
bowing and the prostration.

If he prays standing, it suffices him, but the former [method] is better.

[And it is obligatory on the worshipper (muṣallī):]

3. To make the intention for the prayer in which he is about to enter,
with an intention which he does not separate from the taḥrīmah38 by any
other action,
4. To face the qiblah, except when he is in a state of fear [in which case]
he may pray [facing] any direction he is able.

If the qiblah is unclear to him and there is no one present whom he may
ask about it, he exerts himself [in working out the qiblah] and then prays.

75
 If he comes to know after he has prayed that he has made an error [in
determining the qiblah], then there is no repetition [of the prayer due] upon
him, but if he comes to know that whilst in the prayer, he turns around
towards the qiblah and forms [the remainder of the prayer] upon [what he
has already done].39

THE PROPERTIES OF PRAYER

Obligations (Farā’iḍ)
e obligations of the prayer are six:
1. Saying the ‘Consecratory Takbīr’ (taḥrīmah),
2. Standing (qiyām),
3. Recitation [of the Qur’ān] (qirā’ah),
4. Bowing (rukū‘),
5. Prostration (sujūd), and
6. Final sitting (qa‘dah) for the extent of the tashahhud.40

Anything beyond this is sunnah.41

THE PERFORMANCE OF PRAYER

e First Rak‘ah or Unit

76
 When a man enters his prayer, he says the takbīr,42 and raises both his
hands with the takbīr until his thumbs are parallel to his earlobes.
According to Abū Ḥanīfah and Muḥammad, may Allah have mercy on
them, it suffices him to say, “ Allāhu ajall – Allah is more majestic,” or
“[Allāhu] a‘ẓam – Allah is more tremendous,” or “ar-Raḥmānu akbar – the
Most Merciful is greater,” in the place of the [normal] takbīr. Abū Yūsuf,
may Allah have mercy on him, however, said that it is not permitted for him
to say anything but, “ Allāhu akbar – Allah is greater,” or “ Allāhu’l-akbar –
Allah is the Greatest,” or “ Allāhu’l-Kabīr – Allah is the Great.”

[In qiyām] he rests his right hand over his left, and places both beneath
the navel.
en, he says, “subḥānak’Allāhumma wa bi-ḥamdika wa tabāraka’smuka
wa ta‘ālā jadduka wa lā ilāha ghayruka – Glory be to You, O Allah. All
praise is for You. Blessed is Your name, exalted is Your dominion and there
is no god other than You.”
He [then] seeks refuge with Allah from the accursed Shayṭān43 and
recites, “bismi’llāhi’r-raḥmāni’r-raḥīm – In the name of Allah, the All
Merciful, the Most Merciful,” doing so inaudibly44 in both cases.

77
 en, he recites the Fātiḥah45 of the Book (Qur’ān), and a chapter
(sūrah) with it, or three āyahs (verses) from any chapter he wishes.
When the imam46 says, “…wa lā’ḍ-ḍāllīn,” he says, “ āmīn” and the
follower also says it, but inaudibly.

en, he says the takbīr and perform the rukū‘; he rests his hands on his
knees, opens his fingers wide, levels his back and neither raises nor lowers
his head [excessively]. [Once] in rukū‘ he says, “subḥāna rabbī al-‘aẓ īm –
Glorious is my Lord, the Great” thrice, and that is the minimum.
en, he raises his head saying, “samia’llāhu li-man ḥamidah – Allah
hears the one who praises Him.”
e follower says, “rabbanā laka’l-ḥamd – Our Lord, all praise is for
You.”47

78
 When upright in the standing posture, he says the takbīr and prostrates.
He rests his hands on the ground and places his face between his palms. He
prostrates on his nose and forehead. If he confines himself to [only] one of
the two, it is permitted, according to Abū Ḥanīfah, may Allah have mercy
on him, but the two of them,48 may Allah have mercy on them, said that
restricting [the sajdah] to the nose is not permitted except because of a valid
excuse.

If he prostrates on the fold of his turban, or on the extra [portion] of his

clothing it is permitted.

In his sajdah, he opens up his armpits and separates his stomach from
his thighs, points the toes of his feet towards the qiblah and says “subḥāna
rabbiya’l-alā – Glorious is my Lord, the Most Exalted” thrice, and that is
the minimum.

He then raises his head [whilst] saying the takbīr, and when he is settled
in the sitting posture, he says the takbīr [again] and prostrates.

When he is settled in the [second] sajdah, he says the takbīr and

becomes erect in the standing posture, upon [the use of ] the balls of the
feet;49 he does not sit nor support himself with his hands on the ground.
 S d R k‘ h U
79
 e Second Rak‘ah or Unit

In the second rak‘ah, he does just like he did in the first, except that he
does not open [the unit with “subḥānak’Allāhumma…”], nor does he recite
the ta‘awwudh or raise his hands [to his ears], other than in the [case of the]
first takbīr.50

When he raises his head from the second prostration in the second
rak‘ah, he lays his left foot down and sits on it, and he erects his right foot
[firmly] and directs its toes towards the qiblah. He places his hands on his
thighs and spreads his fingers flat [on them], and says the tashahhud.

e tashahhud is that he says, “at-taḥiyyātu li’llāhi wa’ṣ-ṣalawātu wa’ṭ-

ṭayyibātu, as-salāmu ‘alayka ayyuha’n-nabiyyu wa-raḥmatu’llāhi wa-
barakātu-hu, as-salāmu ‘alaynā wa ‘alā ‘ibādi’llāhi’ṣ-ṣāliḥīn, ash-hadu al-lā
ilāha illa’llāhu wa ash-hadu anna muḥammadan ‘abdu-hu wa-rasūluh.” In
the first sitting (al-qa‘dat al-ūlā), he does not go beyond that [point].

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 In the following two rak‘ahs, he recites the Fātiḥah of the Book only51

When he sits at the end of the prayer, he sits as he sat in the first [sitting
position at the end of the first two rak‘ahs], and says the tashahhud.

He asks for blessings upon the Prophet , and makes supplications for
whatever he likes with what resembles the words of the Qur’ān and
transmitted supplications. He does not supplicate with [words] that
resemble the speech of humans.

ereafter, he says the salutation (salām) to his right and says, “as-salāmu
‘alaykum wa raḥmatu’llāh” and then to his left, likewise.

Recitation

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 If one is [himself ] the imam, he raises his voice with the recitation [of
the Fātiḥah and the additional chapter] in:
1. e fajr [prayer], and in the first two rak‘ahs of
2. e maghrib, and
3. e ‘ishā’ [prayer].
He is to make his recitation inaudible in [the case of ] whatever follows
the first two rak‘ahs.
If someone is [praying] alone, then he has a choice; if he wishes, he may
raise his voice and make himself hear [the recitation], or if he wishes, he
may make it inaudible.
In the ẓuhr and ‘aṣr [prayers], the imam makes his recitation inaudible
[in all the rak‘ahs].

e Witr Prayer

e witr [prayer] is three rak‘ahs; he is not to separate them with

salutation. He recites the [du‘ā] qunūt in the third [rak‘ah immediately]
before the rukū‘, throughout the year.
In each unit of the witr [prayer], he recites the Fātiḥah of the Book with
a chapter [added] to it, and when he wants to [recite] the qunūt, he says the
takbīr and raises his hands [to his earlobes], and then recites the qunūt. He
does not recite the qunūt in any other prayer.

e recitation of a particular chapter and [believing] that any other

[chapter] will not suffice is not a part of prayer.

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 It is disapproved [for one] to adopt the recitation of a specific chapter for
the prayer not reciting any other [chapter] in it.52

Minimum Recitation

e least amount of recitation in the prayer that suffices is whatever is

comprised under the name ‘the Qur’ān’, according to Abū Ḥanīfah, may
Allah have mercy on him, whereas Abū Yūsuf and Muḥammad, may Allah
have mercy on them, said, “Less than three short verses or one long verse53
is not allowed.”
e follower is not to recite behind the imam.54
Whoever wants to enter into the prayer led by another requires two
intentions:
1. An intention for the prayer, and
2. An intention for the [act of ] following.

THE JAMĀ‘AH OR CONGREGATION

Congregation (jamā‘ah) is a sunnah mu’akkadah [for the obligatory

prayers].55

Imamah – Leading the Congregational Prayer

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 e most worthy of people for leading the congregational prayer are:
1. e most knowledgeable of them in the sunnah. If they are equal [in
that respect],

2. e best of them in reciting [the Qur’ān], then if they are equal,

3. e most scrupulous of them, then if they are equal,

4. e eldest of them.

It is disapproved to give priority [as the imam] to:

1. A slave,
2. A Bedouin,56
3. A dissolute,
4. A blind man, and
5. e child of adultery.
If they put themselves forward [to lead the prayer], it is valid.
e imam does not prolong the prayer for them.

Congregation of Women

It is disapproved for women to pray in congregation by themselves, but if

they do, [then] the imam is to stand in between them,57 as [in the case of ]

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naked people.58

Sequence of Rows

Whoever prays with [only] one other person makes him stand to his
right, and if there are two people [other than the imam], then [he stands] in
front of them.
It is not allowed for men to follow a woman [in congregational prayer],
nor a minor.
[In the congregational prayer,] the imam forms [the front] rows of men,
then minors [behind the men], then effeminate men/hermaphrodites and
then women.
If a woman stands next to a man [in congregational prayer] participating
in one and the same prayer, the man’s prayer is void.

Other Issues Pertaining to Prayer

85
 It is disapproved for women to attend the congregation, but there is no
harm if elderly women go out for fajr, maghrib and ‘ishā’, according to Abū
Ḥanīfah, may Allah have mercy on him. Abū Yūsuf and Muḥammad, may
Allah have mercy on them, said that elderly women are permitted to go out
for every prayer.

Someone in the state of purity is not allowed to pray behind someone

with urinary incontinence, nor pure women behind the woman suffering
from chronic menstrual bleeding, nor a reader [of the Qur’ān] behind an
illiterate person and nor a clothed person behind a naked person.
It is permitted for someone who has done tayammum to lead those who
have done wuḍū’ [in congregational prayer], and someone who has wiped
over his khuffs to lead those who wash [their feet] and the person standing
may pray behind someone who sits.
e person who is performing rukū‘ and sujūd is not to pray behind
someone who gestures,59 the person performing the obligatory [prayer] is
not to pray behind someone who is performing supererogatory prayers, and
nor is someone who is performing one obligatory prayer [to pray] behind
someone who is praying a different obligatory prayer.
Someone who is praying as supererogatory may pray behind someone
who is praying the obligatory prayer.60
Whoever follows an imam [in prayer] and then realises that [the imam]
was without purity, must repeat his prayer.

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 It is disapproved for the worshipper to fidget with his clothing, or [with
parts of ] his body [during the prayer], and he does not move pebbles away
unless they render prostration impossible, in which case he may smooth
them away only once.
He does not:
1. Crack his fingers,61
2. Interlace [them],
3. Place his hands on his flanks,62
4. Drape his garment loosely [over his head],
5. Gather it [with his hands],
6. Braid his hair,
7. Turn towards the right or left,
8. Squat like the squatting of a dog,63
9. Reply to greetings with his tongue or [by gesturing] with his hand,
10. Sit cross-legged, other than with a valid excuse, or
11. Eat or drink.

87
 If he is overcome with minor ritual impurity, and if he is not the imam,
he turns away [and leaves the prayer], performs wuḍū’ and reestablishes his
prayer [based on where he left off ].64 If, however, he is the imam, then he
appoints someone as [substitute] imam, performs wuḍū’ [himself ] and
performs his prayer [based on where he left off ], as long as he has not
spoken. Renewal of the prayer from the very beginning, [however,] is better
[in either case].

at which Nullifies Wudu’

If [during prayer]:
1. Someone falls asleep and experiences seminal discharge,
2. Becomes insane,
3. Is overcome with unconsciousness, or
4. Laughs [audibly],
he renews his wuḍū’ and [also] his prayer.

88
 If someone talks in his prayer, whether deliberately or out of
forgetfulness, his prayer is void.
If someone is overcome with minor ritual impurity after he has sat for a
period equal to the tashahhud, [then] he is to perform wuḍū’ and perform
[only] the salutation [of the prayer].
If he:
1. Deliberately acquires minor ritual impurity in these circumstances,

2. Speaks, or

3. Does something which is contrary to the [nature of ] the prayer, his

prayer is [still] valid.
If someone who has performed tayammum sees water during his prayer,
his prayer is invalid.

1. If he sees [water] after he has sat [for a period] equal to the

tashahhud,
2. Or he was wiping over his khuffs and the period of his wiping
elapses,

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 3. Or he removes his khuffs with a little action,
4. Or he was illiterate and learnt a chapter,
5. Or [he was] naked and found garments,
6. Or [was praying] with gestures and acquired the ability to bow and
prostrate,
7. Or he remembered that a prayer was due on him prior to this
[prayer],
8. Or the Qur’ān-reciting imam became ritually impure with a lesser
impurity and appointed an illiterate [as imam],
9. Or the sun rose during the fajr prayer,
10. Or the time for ‘aṣr [prayer] has entered during the jumu‘ah
[prayer],
11. Or he was wiping over a splint65 and it fell off due to healing [of
the wound],
12. Or she was suffering from chronic menstrual bleeding and became
cured,66
their prayer is invalid according to Abū Ḥanīfah, may Allah have mercy
on him. According to Abū Yūsuf and Muḥammad, may Allah have mercy
on them, their prayer is valid in these cases.

DISCHARGE (QAḌĀ’) OF MISSED PRAYERS

90
 Whoever misses a prayer discharges it (qaḍā’) when he remembers it.
He advances its [performance] before the prayer of that particular
time,67 unless he fears [that] the prayer of that time will be lost [due to the
shortage of time], [in which case] he prioritises [the performance] of the
prayer of that time over the missed prayer, and then he discharges [the
missed prayer].
Whoever has missed some prayers, arranges them for their discharge
(qaḍā’) in the sequence in which they originally became obligatory,68 unless
the missed prayers are more than five prayers, in which case the sequential
order is waived.69

DISAPPROVED TIMES FOR PRAYER

Prayer is not permitted:

1. During sunrise,

2. During sunset, other than the ‘aṣr [prayer] of that day, and

3. During [the sun’s] meridian at midday.

[During these times] one does not pray at a funeral, nor does he perform
a prostration of recitation (sajdat at-tilāwah).

91
 It is disapproved for someone to perform supererogatory prayers after the
fajr prayer [until] the sun has risen, and after the ‘aṣr prayer until the sun
has set, but there is, however, no harm if someone performs missed prayers,
the prostration of recitation or prays at a funeral during these two times and
one does not perform the two units of the circumambulation [of the
Ka‘bah].

It is disapproved to perform any more supererogatory prayers after the

appearance of the fajr than the two units of the fajr [prayer].
One does not perform supererogatory prayers prior to the maghrib
[prayer].70

NAWĀFIL – SUPEREROGATORY PRAYERS

e sunnah in prayer is to pray:

1. Two units or rak‘ahs after the appearance of fajr,71

92
 2. Four before the ẓuhr [prayer] and two units after it,

3. Four before the ‘aṣr [prayer], but if one wants [just] two units,

4. Two units after the maghrib [prayer], and

5. Four before the ‘ishā’ [prayer] and four [units] after it, but if one
wants [then just] two units.

With regards to the supererogatory prayers of the day, if one wishes, he

may pray two units with one salutation, and if he wishes, [he may pray]
four; [any] more than that is disapproved.
With regards to the supererogatory prayers of the night, Abū Ḥanīfah,
may Allah have mercy on him, said that if one prays eight units with one
salutation, it is permitted, and more than that is disapproved. Abū Yūsuf
and Muḥammad, may Allah have mercy on them, however, said that one
does not exceed two units with one salutation during the night
[supererogatory prayers].

e Ruling of Recitation in Supererogatory Prayers

93
 Recitation is incumbent in the first two units [of obligatory prayers].
In the last two [units], one has a choice:
1. If he wishes, he may recite the Fātiḥah [alone],

2. If he wishes, he may remain silent, or

3. If he wishes, he may recite the tasbīḥ (glorification) [alone].

Recitation is incumbent in all units of the supererogatory prayers and
[also] in all units of the witr prayer.

Whoever enters into a supererogatory prayer and then invalidates it

performs it again by way of qaḍā’.72 If he prays four units, [in which] he sits
at [the end of ] the first two and then renders the other two void, he
performs two units by way of qaḍā’, but Abū Yūsuf, may Allah have mercy
on him, said that he performs [all] four [units] by way of qaḍā’.

One may perform supererogatory prayers seated, even though he has the
ability to stand. If someone begins the prayer standing and then sits down
[and thus, continues the prayer], it is valid according to Abū Ḥanīfah, may
Allah have mercy on him, but the two of them,73 may Allah have mercy on
them, said that it is not valid without a legitimate excuse.

94
 Whoever is [travelling] outside the city may perform supererogatory
prayers on his mount, facing towards whichever direction it faces [and]
praying with gestures.

PROSTRATIONS FOR ERROR

e prostration of error (sajdat as-sahw) is incumbent in the event of an

[undue] excess or a deficiency [in the prayer], and [it is performed] after the
salutation.

One performs two prostrations [of error], then the tashahhud and then
the salutation.
e prostration of error becomes binding upon him when he:
1. Adds an act to his prayer that is similar to [the prayer] but is not a
part of it, or

2. Omits an act prescribed by the sunnah, or

3. Omits:
i. e recitation of the Fātiḥah of the Book, or
ii. e qunūt, or
iii. e tashahhud, or

95
 iv. e [additional] takbīrs of the two ‘Īds, or

4. e imam recites aloud in what he was supposed to recite inaudibly,

or

5. Recites silently in what was supposed to be audible.

e error of the imam obliges the prostration [of error] upon the
follower; if the imam does not prostrate [for error], the follower does not
prostrate. If the follower makes an error [in his prayer], the prostration [of
error] is not required of the imam nor of the follower.

Whoever forgets the first sitting (al-qa‘dat al-‘ūlā) [and stands], then
remembers it when he is closer to the sitting posture, returns, sits and
performs the tashahhud. If he is closer to the standing posture, then he does
not return [to the sitting posture],74 and [at the end of the prayer], performs
the prostration of error.
If someone forgets the final sitting and stands up for a fifth [unit], he
returns to the sitting posture, as long as he has not performed a prostration
[within the fifth unit]. He abandons the fifth [unit] and performs the

96
prostration of error [after the salutation concluding the fourth unit].
Nevertheless, if he has secured the fifth [unit] with a prostration, his
obligatory [prayer] is void and his prayer becomes a supererogatory prayer
and it is incumbent on him to add a sixth unit.

If someone sits in the fourth [unit], and then stands and does not
perform the salutation believing that [it was] the first sitting, he returns to
the sitting posture so long as he has not performed a prostration for the fifth
[unit]. He performs the salutation and then performs the prostration of
error. If, however, he secures the fifth [unit] with a prostration, he adds
another unit to it and his prayer concludes [with that sixth unit]. e two
[additional] units [the fifth and sixth] are supererogatory.

Whoever has a doubt about his prayer and does not know whether he
has prayed three or four [units], and that being the first [incident in prayer]
that has occurred to him, begins the prayer again [from the beginning]. If
that [uncertainty] occurs to him frequently then he must base [his prayer]
on his predominant belief, if he has a [predominant] belief, but if he does
not have a [predominant] belief, he bases [his prayer] upon [what he has]
certainty [of within the prayer].

THE PRAYER OF THE SICK

97
 If standing is impossible for the sick person, he prays seated with bowing
(rukū‘) and prostration (sujūd). If he is unable to bow and prostrate, then he
gestures [to indicate the positions]. He makes the prostration lower than the
bowing and does not raise anything towards his face upon which he
performs the prostration. If he is unable to sit, then he reclines on his back
and points his feet towards the qiblah and gestures [indicating] bowing and
prostration.
If he lies down on his side with his face towards the qiblah making
gestures [indicating the postures], it is valid.

98
 If he is unable to make gestures with his head, he postpones his prayer
and does not gesture with his eyes, eyebrows nor his heart.
If he is able to stand but unable to bow or prostrate, the standing is not
binding upon him and it is permitted [for him] to pray seated whilst
gesturing [indicating the postures].
If a healthy person performs a part of his prayer standing, and then is
[suddenly] afflicted with an illness, he completes it sitting, and bows and
prostrates, or by way of gesturing if he is unable to bow and prostrate, or
reclining if he is unable to sit.
Whoever prays [initially] seated, bowing and prostrating, due to an
illness, and then recovers [from that illness] completes [the remainder of ]
his prayer standing, but if he performs a part of his prayer with gestures and
then gains the ability to bow and prostrate, he begins the prayer [from the
beginning].
When someone who is overcome with unconsciousness for [a period of ]
five prayers or less recovers, he performs them by way of qaḍā’, but if he
misses more than that75 due to unconsciousness, then he does not perform
[any of ] them by way of qaḍā’.76

THE PROSTRATIONS OF RECITATION

e Qur’ānic Verses (Āyahs) of Prostration

In the Qur’ān, there are fourteen prostrations [of recitation, and they are
in the following sūrahs]:
1. e end of al-A‘rāf,77

2. Ar-Ra‘d,78

99
 3. An-Naḥl,79

4. Banī Isrā’īl (al-Isrā’),80

5. Maryam,81

6. e first [prostration] in al-Ḥajj,82

7. Al-Furqān,83

8. An-Naml,84

9. Alif Lām Mīm Tanzīl,85

10. Ṣād,86

11. Ḥā Mīm as-Sajdah,87

12. An-Najm,88

13. Al-Inshiqāq,89 and

14. Al-‘Alaq.90

e Ruling on Prostration

In these places, prostration is incumbent on the reciter and the listener,

whether [the listener] intended to listen to the Qur’ān or did not intend [to

100
listen].
When the imam recites a verse of prostration [within the prayer], he
prostrates for it, and the follower prostrates with him, but if the follower
recites [a verse of prostration], the prostration is not binding upon the imam
or the follower. If they [the imam and follower] hear [the recitation of ] a
verse of prostration from a man who is not with them in the prayer, they do
not prostrate for it within the prayer but prostrate for it after the prayer. If
they do prostrate for it within the prayer, it does not suffice them but
neither does it invalidate their prayer.

Whoever recites a verse of prostration outside of the prayer and does not
prostrate for it until he entered into prayer and recited it [again], and [this
time] he does prostrate [once] for both times, the prostration will suffice
him for both recitations. If he recites it outside of the prayer and prostrates
for it, and then enters into the prayer and recites it [again], he prostrates for
it a second time [because] the first prostration does not suffice him.
One prostration suffices someone who repeats the recitation of one
[particular verse of ] prostration in one session.

Whoever wants [to perform] the prostration [of recitation] pronounces

the takbīr without raising his hands [to his earlobes], and prostrates. He
then says the takbīr and raise his head [from prostration]. ere is neither
tashahhud nor salutation [required] from him.

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 THE PRAYER OF THE TRAVELLER

Shortening (Qaṣr) the Prayer

e journey because of which legal commands change is when one

intends [to travel to] a place between him and which there is a distance of
three days travel, traversing by camel or walking on foot, but travelling on
water91 is not to be taken into account for that.

According to us, the obligation on the traveller is two units for every
prayer of four92 units,93 and any addition to those two [units] is not
permissible for him.94 If one does pray four [units] and sits in the second for
the extent of the tashahhud, then the [first] two units suffice him for his
obligatory [units], and the other two are supererogatory for him, but if he
does not sit in the second for the extent of the tashahhud in the first two
units, then his prayer is void.

Beginning the Shortening

102
 Whoever sets out as a traveller performs two units [of prayer] when he
has passed the houses [at the fringes] of the city, and he remains under the
legal ruling of a traveller until he intends [to take up] residence in a city for
fifteen days or more, in which case the completion [of the full prayer]
becomes binding upon him, but if he intends [to take up] residence for less
than that, he does not complete [the prayer of four units but perform two].

Whoever enters a city not intending to stay there for fifteen days [or
more], saying, “I shall leave tomorrow,” or “I shall leave [the day] after

103
tomorrow,” even if he remains there for many years [still] prays two units
[shortened].
When an army enters dār al-ḥarb (hostile territory) and it intends [to
take up] residence [there] for fifteen days [or more], it does not complete
the [full] prayer.95
When the traveller enters into the prayer of a resident [imam] with time
still remaining, he completes the [full] prayer,96 but if he enters with him
into a missed prayer, his prayer is not valid behind him.
When the traveller leads a group of residents in prayer, he prays two
units and performs the salutation. en, the residents complete their prayer
[individually]. It is recommended when [the traveller] has performed the
salutation, that he say to them, “Complete your prayers for we are a group of
travellers.”
When a traveller enters his [own] city, he completes the [full] prayer,
even if he has not intended [to take up] residence in it.
Whoever has a homeland then migrates from it and adopts another
homeland, then later travels and enters his former homeland, does not
complete the prayer97 [but shortens it].
When a traveller intends to reside in Makkah and Minā for fifteen days
[or more], he does not complete the prayer98 [but shortens it].

e combination of two prayers for the traveller is permitted practically

but not permitted as [far as] time [is concerned].99
Prayer is permitted in the sitting position on a boat in all circumstances,
according to Abū Ḥanīfah, may Allah have mercy on him, but according to

104
the two of them,100 may Allah have mercy on them, it is not permitted [in
the sitting position] except with a [valid] excuse.
Whoever misses a [four-unit] prayer during a journey, performs it by
way of qaḍā’ as two units when resident, but if he misses a [four-unit] prayer
while resident, he performs it by way of qaḍā’ during travel as four units.101
e disobedient and the obedient are [treated] the same with regards to
the concession during a journey.

THE JUMU‘AH (FRIDAY) PRAYER

e Preconditions for the Validity of the Jumu‘ah

Prayer

e Jumu‘ah [prayer] is not valid except in a comprehensive city (miṣr

jāmi‘),102 or at a [specified] place of prayer within the city, but it is not
permitted in villages.
Establishment of the Jumu‘ah prayer is not permitted except by the
Sulṭān,103 or by someone whom the Sulṭān has appointed.

Its Preconditions

105
 One of its preconditions is the time; it is valid [only] at the time of the
ẓuhr [prayer] and it is not valid after it.104
One of its conditions is the address (khuṭbah) before the [obligatory]
prayer [is held]. e imam delivers two addresses, separating them by one
sitting. He delivers the addresses standing in [the state of ] purity. If [the
imam] confines himself to the remembrance of Allah, it is permitted,
according to Abū Ḥanīfah, may Allah have mercy on him, but they105 said,
may Allah have mercy on them, that it must be a lengthy remembrance that
may be classified as an address. If he delivers the address whilst seated or in
[the state of ] impurity, it is valid but disapproved.
One of its conditions is the congregation; according to Abū Ḥanīfah and
Muḥammad, may Allah have mercy on them, the minimum is three
[persons] besides the imam, but Abū Yūsuf, may Allah have mercy on him,
said that it is two [persons] besides the imam.106
e imam is to be audible in his recitation in both rak‘ahs, and the
recitation of a specified chapter in them is not [a requirement].

ose on whom the Jumu‘ah Prayer is not Obligatory

106
 e Jumu‘ah [prayer] is not obligatory for:
1. A traveller,

2. A woman,

3. An ill person,

4. A minor,

5. A slave, or

6. A blind person.
If they do attend and pray with the people, it suffices them for the
obligatory [prayer] of the time.107
It is permissible for a slave, a traveller or an ill person to lead the Friday
[prayer as imam].

Whoever performs the ẓuhr [prayer] in his house on a Friday before the
imam’s prayer [of Jumu‘ah], without [valid] excuse, that is disapproved for
him, but his prayer is permitted. en if he decides to attend the Jumu‘ah

107
[prayer after his performance of the ẓuhr prayer] and proceeds towards it,
the ẓuhr prayer becomes invalid [for him], according to Abū Ḥanīfah, may
Allah have mercy on him, by [his] making an effort to go to the Jumu‘ah
prayer, but Abū Yūsuf and Muḥammad, may Allah have mercy on them,
said that it is not void until he enters [the Jumu‘ah prayer] with the imam.
It is disapproved for the [legally] excused person to perform the ẓuhr
[prayer] in congregation on a Friday, as is the case for prisoners.

Whoever catches the imam108 on a Friday prays with him whatever he

catches, and prays the Jumu‘ah on that basis.109
If he catches him in the tashahhud, or in the prostration of error (sujūd
as-sahw), he is to pray the Friday [prayer] on that basis, according to Abū
Ḥanīfah and Abū Yūsuf, may Allah have mercy on them. Muḥammad, may
Allah have mercy on him, said, “If he catches most of the second unit with
him, he prays the Jumu‘ah [prayer] on that basis, but if he catches less than
that with him, he prays the ẓuhr [prayer] on that basis.”110

e Khuṭbah – Address

108
 When the imam comes out [for the Friday prayer], the people abstain
from praying and talking until he completes his address. e two of
them,111 may Allah have mercy on them, said, “ere is no harm if they talk
so long as he has not commenced the address.”
When the mu’adhdhin calls the first adhān on a Friday, the people stop
selling and buying and they proceed towards the Jumu‘ah [prayer].
When the imam ascends the minbar, he sits [on it] and the mu’adhdhins
call the adhān in front of the minbar. en the imam delivers the address.
When he completes his address, they establish the prayer.

THE PRAYER OF THE TWO ‘ĪDS

Recommended Acts of ‘Īd al-Fiṭr

It is recommended for the individual to eat something prior to setting

forth towards the place of prayer on the day of [‘Īd] al-Fiṭr, take a ghusl,
perfume himself, dress [in] his best clothes and head towards the place of
prayer (muṣallā).112 He does not say the takbīr113 on the way to the place of
prayer, according to Abū Ḥanīfah, may Allah have mercy on him, but
according to the two of them,114 may Allah have mercy on them, he does
say the takbīr.

109
 He does not perform supererogatory prayers at the muṣallā prior to the
‘Īd prayer.
When prayer becomes lawful with the ascent of the sun, its time has
entered, [and it lasts] up until the declination [of the sun] (zawāl)115 from
the meridian. When the sun declines, its time is over.

e ‘Īd Prayer Procedure

e imam prays two units with the people; in the first [unit] he
pronounces the consecratory takbīr, then three [takbīrs] after that. After
that, he recites the Fātiḥah of the Book and a sūrah with it. He then says
the takbīr with which he bows. en, in the second unit, he begins with the
recitation [of the Fātiḥah]. When he has completed the recitation [with the
additional chapter after the Fātiḥah], he says three takbīrs and [then] says a
fourth takbīr with which he bows.
He raises his hands [to his ears] in [all of ] the takbīrs of both the ‘Īd
[prayers].
ereafter, [the imam] delivers two addresses after the prayer in which
he teaches the people [regarding] the ṣadaqat al-fiṭr (the mandatory charity
of the fiṭr) and its rules.

110
 Whoever misses the ‘Īd prayer with the imam, is not to perform it by
way of qaḍā’.
If the crescent moon is obscured for people and they testify to the
sighting of the crescent in the presence of the imam after the declination [of
the sun from the meridian], they pray [the ‘Īd prayer] the following day, but
if a [valid] excuse occurs that hinders people from praying the second day,
[the imam] does not perform it after that.

Recommended Acts of ‘Īd al-Aḍḥā

On the day of [the ‘Īd of ] Aḍḥā, it is recommended that one take a

ghusl, wear perfume, delay eating until one has finished the prayer and head
towards the place of prayer saying the takbīr.
One performs the [‘Īd of ] Aḍḥā [prayer in] two rak‘ahs, like the [‘Īd of ]
Fiṭr prayer.

111
 [e imam] delivers two addresses after [the prayer], teaching people the
sacrifice (uḍḥiyah) and the takbīrs of tashrīq116 in them.
If there occurs a [valid] excuse that hinders people from praying on the
day [of ‘Īd of ] Aḍḥā, they pray it the following day or the day after that, but
they do not pray it after that.

e Takbīr at-Tashrīq

As to the takbīr at-tashrīq, the first of it follows the fajr prayer on the
Day of ‘Arafah and the last of it follows the ‘aṣr prayer on the Day of
Sacrifice (naḥr), according to Abū Ḥanīfah, may Allah have mercy on him.
Abū Yūsuf and Muḥammad, may Allah have mercy on them, however, said
that [it lasts] till the ‘aṣr prayer of the final day of the tashrīq.
e takbīr follows [immediately after] the obligatory prayers. [It is to
say]: “Allāhu akbar, Allāhu akbar, lā ilāha illa’llāhu wa’llāhu akbar, Allāhu
akbar, wa li’llāhi’l-ḥamd – Allah is greater, Allah is greater, there is no god
but Allah, Allah is greater, Allah is greater, and to Allah is all praise.”

PRAYER DURING THE SOLAR ECLIPSE

(KUSŪF)

112
 When the sun is eclipsed (kusūf), the imam prays two rak‘ahs with the
people, like the form of the supererogatory [prayers]. ere is [only] one
bowing [position] in each rak‘ah. e imam lengthens the recitation in both
[of the rak‘ahs] and he makes [the recitation] inaudible, according to Abū
Ḥanīfah, may Allah have mercy on him, but Abū Yūsuf and Muḥammad,
may Allah have mercy on them, said that he recites aloud. Afterwards, he
makes a supplication until the sun appears again.

e imam who performs the Jumu‘ah prayer with them prays with the
people, and if the imam is not present, the people pray it individually.
ere is no congregation for the lunar eclipse (khusūf), and everyone
prays on their own.
ere is no address (khuṭbah) for the eclipse prayer.

THE ISTISQĀ’ – PRAYER FOR RAIN

113
 Abū Ḥanīfah, may Allah have mercy on him, said, “For seeking rain
(istisqā’), there is no prayer in congregation according to the Sunnah; and if
people pray individually it is valid. Istisqā’ is only supplication and seeking
forgiveness.”
Abū Yūsuf and Muḥammad, may Allah have mercy on them, said, “e
imam prays two units in which he makes the recitation audible. en, he
delivers an address and faces the qiblah when supplicating. e imam turns
his cloak inside out, but the people do not turn their cloaks inside out.”
e people of the dhimmah117 do not attend the [prayer for] seeking
rain.

THE (NIGHT) PRAYER DURING THE MONTH

OF RAMADAN

It is recommended118 for people to congregate in the month of

Ramadan, after the ‘ishā’ [prayer].

e Tarāwīḥ Prayer

114
 eir imam prays five tarwīḥahs119 with them, in each tarwīḥah there are
two salutations. He sits between every two tarwīḥahs to the extent of one
tarwīḥah.120 en, he performs the witr prayer with them.121 e witr
prayer is not to be performed in congregation outside the month of
Ramadan.

THE PRAYER IN THE STATE OF FEAR

When fear becomes intense,122 the imam forms the people into two
groups; one group facing the enemy,123 and one group behind himself.124
He prays one unit and two prostrations with this [latter] group. When he
raises his head from the second prostration, this group proceeds to face the

115
enemy and the other group attends. e imam performs one unit and two
prostrations with [the second group] and he performs the tashahhud and
the salutation. ey do not perform the salutation but go away to face the
enemy. e first group returns and prays one unit and two prostrations,
without the recitation,125 individually. ey perform the tashahhud and the
salutation [then] proceed to face the enemy. [en,] the other group return
and pray one unit126 and two prostrations with recitation127 and perform
the tashahhud and the salutation.

If [the imam] is resident, then he performs two units with the first group
and two units with the second [group].
For the maghrib [prayer], he prays two units with the first group and one
unit with the second [group].
ey do not engage in combat whilst in the state of prayer; if they do
that, their prayer is void.
If the fear is extremely intense, they pray individually whilst mounted,
making gestures for the bowing and prostration, facing whichever direction
they wish if they are unable to face the qiblah [throughout the prayer].

FUNERALS

116
 When a person is close to death, he is faced towards the qiblah on his
right side and encouraged [to pronounce] the two shahādahs.128 When he
dies, they tie his jaws and close his eyes.

Bathing the Corpse

When they decide to bathe him, they place him on a dais and place a
piece of cloth over his private parts (‘awrah) and remove his clothes. ey
perform wuḍū’ on him, but do not rinse his mouth nor rinse his nose. en,
they pour water over him. His dais has incense burned under it an odd
number of times. e water [for ghusl] is boiled with lotus or with saltwort,
and if not available, then pure water [suffices]. His head and beard are
washed with althaea.129

en, he is made to lie on his left side and bathed with water and lotus
until it is seen that the water has reached to what is adjacent to the tablet.130

117
After that, he shall be made to lie on his right side and bathed with water
until it is seen that the water has reached to what is adjacent to the tablet.
en, [the person bathing the body] causes him to sit, supports him against
himself and gently rubs his stomach, and if anything emerges from him,
washes it. He does not repeat the ghusl [of the deceased].
en, he dries him with a cloth and places him in his shrouds. He
applies balm to his head and beard, and camphor to the parts used in
prostration.131

e Shroud

Of the Male
It is sunnah for a man to be shrouded in three cloths:
1. A wrapper for the lower half of the body (izār),132

2. Shirt (qamīṣ), and

3. Wrapper (lifāfah).
If they confine themselves to two cloths, it is valid.133
When they decide to wrap the wrapper around him, they begin from the
left side and cast it over him, then with the right side. If they are afraid that
the shroud will unwrap [and fall] off him, they tie it.

118
Of the Female
e woman is enshrouded in five cloths:
1. A wrapper for the lower half of the body (izār),

2. Shirt (qamīṣ),

3. Veil (khimār),

4. A scrap (khirqah) – with which her breasts are tied,134 and

5. A wrapper (lifāfah).
If they confine themselves to three cloths, it is valid.135
e veil is over the shirt but under the wrapper, and her hair is placed
upon her chest.

e hair of the deceased is not combed nor his beard. His nails are not
trimmed nor his hair. e shrouds are subjected to incense an odd number
of times before the body is placed in them. Once they have completed that,
they pray over him.

e Funeral Prayer

119
 e one with the most right to lead the prayer over him is the Sulṭān, if
he is present. If he is not present, then it is recommended to give priority to
the imam of the locality, then the walī (legally responsible guardian). If
someone other than the walī or the Sulṭān pray over him, the walī repeats
[the prayer]. If the walī prays over him, then no-one is permitted to pray
over him after that.136 If he is buried and he has not yet been prayed over,
his grave may be prayed over for [up to] three days, and it is not prayed
[over] after that.137
e person praying stands level with the chest of the deceased.138

e [funeral] prayer is [as follows]:

1. One says the takbīr, praising Allah after it, then

2. One says the [second] takbīr and sends blessings on the Prophet
thereafter

3. He says the third takbīr and supplicates in it for himself, the

deceased and the Muslims, and then

4. One says a fourth takbīr and says the salutation.

5. One is not to raise his hands [to his ears] except in the first takbīr.
e deceased is not prayed over in a congregational masjid.

Carrying the Bier

120
 When they [i.e. the pallbearers] carry him on his dais, they hold it by its
four posts. ey walk with it briskly, but less than trotting. It is disapproved
for the people, when they reach his grave, to sit before he is lowered down
from the necks of the men.139
His grave is dug and a lateral niche (laḥd) is made140 and the deceased is
entered from that [side] which is adjacent to the qiblah.

e Burial

When he is placed in his niche, the one placing him is to say, “bismi’llāhi
wa ‘alāmillatirasūli’llāhi – In the name of Allah, and according to the
religion of the Messenger of Allah.” He is [also] to face him towards the
qiblah and to loosen the knot [of his wrapper]. Mud bricks are placed over
the niche; [the placing of ] baked bricks and wood [over the niche] is
disapproved, but there is no harm in [using] cane. ereafter, earth is cast
onto [the grave] and the grave is made hump-like and not flattened.141

e Stillborn

121
 After birth, whoever cries, is named, given a ghusl and prayed over,142
but if it does not cry, it is [not named, given a ghusl nor prayed over, but] is
wrapped in a cloth and buried.

THE SHAHĪD – MARTYR143

e shahīd (martyr) is someone:

144
1. Who was killed by polytheists, or

2. Was found [dead] at the battle with marks of wounding on him, or

3. e Muslims killed him unjustly but diyah is not due for his killing.
He is placed in a shroud and prayed over, but not given a ghusl.
When a junub is killed [as shahīd], he is given a ghusl, according to Abū
Ḥanīfah, may Allah have mercy on him, as is the minor, but Abū Yūsuf and
Muḥammad, may Allah have mercy on them, said, “ey are not given a
ghusl.”

122
 e blood of a shahīd is not washed off him, nor are his clothes
removed, but his leather jacket, furs, boots and weapons are removed.

Whoever remains alive (irtithāth) is to be given a ghusl.

Remaining alive (irtithāth) is that one:
1. Eats, or

2. Drinks, or

3. Is treated, or

4. Remains alive until the time of one prayer passes over him and
whilst he is conscious, or

5. He is transferred, while alive, from the battlefeld.

Whoever is killed due to a ḥadd (divine statutory) punishment, or qiṣāṣ
(legally supervised retaliation), is given a ghusl and prayed over, but those
rebels or brigands killed are not prayed over.

PRAYER INSIDE THE KA‘BAH

123
 Prayer inside the Ka‘bah is valid, the obligatory and the supererogatory.
If the imam prays inside it with a congregation and some of them turn their
backs to the imam’s back, it is valid, but if any of them turns his face
towards the face of the imam, it is valid, but disapproved, but if any of them
turns his back to the face of the imam, his prayer is invalid.

When the imam prays in the al-Masjid al-Ḥarām,145 the people form a
circle around the Ka‘bah and pray with the imam’s prayer [following him].
If any of them is closer to the Ka‘bah than the imam, his prayer is valid if he
is not on the [same] side [as that] of the imam.
If someone prays on the roof of the Ka‘bah, his prayer is valid.

124
 ZAKĀH – OBLIGATORY POOR-DUE

Obligations of Zakāh

Zakāh is obligatory on the free Muslim [who is] adult and sane
when he owns the complete minimum amount (niṣāb), with complete
ownership146 and a [lunar] year passes over it. ere is no zakāh on a
minor, an insane person or a mukātab.147
Whoever owes a debt that encompasses his wealth, then there is no
zakāh [due] from him, but if his wealth is more than the debt, zakāh
is paid upon the excess if it reaches the niṣāb.
ere is no zakāh on residential houses, clothes for the body,
household goods, riding animals, slaves for [personal] service [not for
trade] and weapons for use [not for trade].

125
 Payment of zakāh is not valid without an associated intention to
pay, or associated [intention] for the disposal of the obligation of the
amount [of the zakāh].
Whoever gives away all his wealth as ṣadaqah (optional charity)
and does not intend zakāh, his obligation [of the payment of zakāh]
lapses.

ZAKĀH ON CAMELS (IBIL)

ere is no ṣadaqah148 [due] on less than a group149 of five camels.

When they amount to five free-grazing, and a year passes over them,
there is one sheep or goat150 due [in zakāh] for them; [that is] up to
nine [camels]. When they become ten, there are two sheep or goats
due [in zakāh] for them, and that is up to fourteen [camels]. When
they become fifteen [camels], there are three sheep or goats [zakāh] in

126
them, up till nineteen. When they become twenty, there are four
sheep or goats due [in zakāh] for them, up till twenty-four.
When they reach twenty-five [camels], there is one bint makhāḍ151
due [in zakāh] for them, up till thirty-five. When they reach thirty-six
[camels], there is one bint labūn152 due [in zakāh] for them, up till
forty-five. When they reach forty-six [camels], there is one ḥiqqah153
due [in zakāh] for them, till sixty. When they reach sixty-one
[camels], there is one jadha‘ah154 due [in zakāh] for them, up till
seventy-five.
When they reach seventy-six [camels], there are two bint labūns
due [in zakāh] for them, up till ninety. When they become ninety-one
[camels], there are two ḥiqqahs due [in zakāh] for them, up till one
hundred and twenty [camels].

ereafter, the obligation recommences; thus, for five [camels over

one hundred and twenty], there is one sheep or goat with the two
ḥiqqahs. For ten [camels over one hundred and twenty], there are two
sheep or goats [with the two ḥiqqahs]. For fifteen [camels over one
hundred and twenty], there are three sheep or goats [with the two
ḥiqqahs]. For twenty [camels over one hundred and twenty], there are
four sheep or goats [with the two ḥiqqahs].
For twenty-five [camels over one hundred and twenty], there is one
bint makhāḍ [with the two ḥiqqahs], up to one hundred and fifty in
which there are three ḥiqqahs [due in zakāh].

127
 ereafter, the obligation recommences; thus, for five [camels over
one hundred and fifty], there is one sheep or goat [with the three
ḥiqqahs]. For ten, there are two sheep or goats. For fifteen, there are
three sheep or goats. For twenty, there are four sheep or goats.
For twenty-five [camels over one hundred and fifty], there is one
bint makhāḍ [with the three ḥiqqahs]. For thirty-six [camels over one
hundred and fifty], there is one bint labūn [with the three ḥiqqahs].
When they reach [the number] one hundred and ninety-six, then
in them there are four ḥiqqahs, up until two hundred [camels].

ereafter, the obligation continually recommences, just as it

recommences for the fifty which come after the one hundred and
fifty.155
e mixed breed (bukht) and the Arabian breed (‘irāb) are
[deemed to be] the same.

ZAKĀH ON BOVINES156 (BAQAR)

128
 ere is no zakāh on less than thirty cows. When there are thirty,
free-grazing [cows] and a year passes over them, there is due a one-
year old male calf (tabī‘) or a one-year old female calf (tabī‘ah) [as
zakāh] in them, and in forty [cows], it is a two-year old male calf
(musinn) or a two-year old female calf (musinnah).

When they exceed forty [cows] up to sixty, it becomes obligatory

[to pay zakāh] on the excess accordingly, according to Abū Ḥanīfah,
may Allah have mercy on him. us, in one [cow over forty cows], it
is a quarter of a tenth157 of a two-year old female calf, in two [cows
over forty cows], it is one half of a tenth158 of a two-year old female
calf and in three, it is three-quarters of a tenth159 of a two-year old
female calf.

Abū Yūsuf and Muḥammad, may Allah have mercy on them,

however, said that there is nothing [to pay] for the excess [over forty
cows] until they reach sixty. us, there are two one-year old male
calves or two one-year old female calves [in sixty cows]. In seventy
[cows], there is a two-year old female calf and a one-year old male
calf. For eighty [cows], there are two two-year old male calves. For
ninety [cows], there are three one-year old female calves and in one
hundred [cows], there are two one-year old female calves and one
two-year old female calf.

129
 It is on this [scale that] the obligation [of zakāh] changes in every
ten [cows] from a year old male calf to a two-year old female calf [and
vice versa].160
Buffaloes and cows are the same [in this regard].

ZAKĀH ON SHEEP AND GOATS 161

(GHANAM)

ere is no zakāh due on less than forty sheep or goats, and when
there are forty free-grazing [sheep or goats] and a year passes over
them, there is one sheep or goat due from them, up until one hundred
and twenty.
When one [sheep or goat] increases [over one hundred and
twenty], then there are two sheep or goats [due as zakāh] from them,
up until two hundred. When one [sheep or goat] increases [over two
hundred], then there are three sheep or goats [due as zakāh] from
them. When they reach four hundred [sheep or goats], then there are
four sheep or goats [due as zakāh] from them.
ereafter, in every [additional] one hundred [sheep or goats over
four hundred], there is a sheep or goat [added to the payment of
zakāh].162

130
 Sheep and goats are [to be deemed] the same [in this regard].

ZAKĀH ON HORSES (KHAYL)

When horses are free-grazing, male (stallions) and female (mares),

and one year passes over them, then their owner has a choice:
1. If he wants, he may give one dinar for every horse [as zakāh], or
2. If he wishes, he may value them and pay five dirhams for every
two hundred dirhams [of the total value].163
According to Abū Ḥanīfah, may Allah have mercy on him, there is
no zakāh on the males of them alone,164 but Abū Yūsuf and
Muḥammad, may Allah have mercy on them, said that there is no
zakāh on horses.
ere is nothing [payable as zakāh] on mules and donkeys unless
they are for trade.

131
 According to Abū Ḥanīfah and Muḥammad, may Allah have
mercy on them, there is no zakāh on young camels, young sheep and
young cattle, unless there are older ones with them, but Abū Yūsuf,
may Allah have mercy on him, said that it is obligatory [to give] one
of those [young].
Upon whomsoever a two-year old male calf is obligatory and it is
not available, the ṣadaqah-official is to take a superior [animal] than
that and return the excess165 [to the owner], or he may take an inferior
[animal than that] and take the excess.
It is permitted to pay the value in zakāh.166

ere is no zakāh on work-animals, pack-animals and stall-fed

animals.
e ṣadaqah-official167 is not to take the best of the wealth [of
animals] nor the worst of it; he is to take the average [animals].

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 Whoever possesses the niṣāb [of animals] and derives benefit from
the same species throughout the year, is to add it to his wealth [of
animals] and pay zakāh on it [all].
e sā’imah is that [animal] which is sufficed by grazing most of
the year. When one stall-feeds it for half the year or more, there is no
zakāh on it.168

According to Abū Ḥanīfah and Abū Yūsuf, may Allah have mercy
on them, zakāh is due on the [complete] niṣāb [only] and not [on] the
excess, but Muḥammad and Zufar, may Allah have mercy on them,
said that it is obligatory on them both.
If zakāh is paid in advance before the year [has passed], and one is
the owner of the niṣāb, then it is valid.

ZAKĀH ON PROPERTY (MĀL)

ZAKĀH ON SILVER (FIḌḌAH)

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 ere is no zakāh on whatever is less than two hundred dirhams
[of silver].169
When there are two hundred dirhams [of silver] and a year passes
over them, then for that there are five dirhams170 [zakāh], and there is
nothing [to pay] on the excess until it reaches forty dirhams, when,
there is one dirham for it.
ereafter, there is one dirham [to pay as zakāh] in every forty
dirhams, according to Abū Ḥanīfah, may Allah have mercy on him,
but Abū Yūsuf and Muḥammad, may Allah have mercy on them, said
that whatever goes over two hundred [dirhams], its zakāh [is
calculated] according to its rate.171

If the predominant portion of the coin is silver, then it shall be

[dealt with] under the ruling of silver, but if the predominant portion
is alloy, then it shall be [dealt with] under the ruling of commodities
(‘urūḍ).

ZAKĀH ON GOLD (DHAHAB)

ere is no zakāh on what is less than twenty mithqāls172 of gold,

but if it is [a minimum of ] twenty mithqāls, and one year passes over
it, there is one-half of a mithqāl [zakāh] due on it.173

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 ereafter, in every four mithqāls [over twenty], two carats174 [are
due as zakāh].175

According to Abū Ḥanīfah, may Allah have mercy on him, there is

no zakāh due on what is less than four mithqāls,176 but they,177 may
Allah have mercy on them, said that whatever exceeds twenty
[mithqāls], its zakāh [is calculated] according to its rate.178
Zakāh is due on nuggets of gold and silver, on their jewellery and
utensils [manufactured] from them.

ZAKĀH ON STOCK (‘URŪD)

Zakāh is obligatory on goods [held] for trade (‘urūḍ at-tijārah),

whatever they may be, when their value reaches the niṣāb of silver or
gold. It is valued, according to whichever of the two is more beneficial
for the poor and the destitute.
Abū Yūsuf, may Allah have mercy on him, said that one should
evaluate it with what one purchased it; if he purchased it with

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something other than money, it should be evaluated in the
predominant currency in the city, but Muḥammad, may Allah have
mercy on him, said that [it should be evaluated] in the predominant
currency in the city under all circumstances.

When the niṣāb is complete at both ends of the year,179 its falling
below [the niṣāb] in between that does not cause [the obligation of ]
zakāh to lapse.180
e value of the stock is to be added to the value of gold and silver,
and likewise, gold is to be added to silver, with [regards to] value until
the niṣāb is complete, according to Abū Ḥanīfah, may Allah have
mercy on him, but they181 said, may Allah have mercy on them, that
gold is not to be added to the silver in value, but [that] it is to be
added in portions.182

ZAKĀH ON CROPS (ZURŪ‘) AND FRUITS

(THIMĀR)

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 Abū Ḥanīfah, may Allah have mercy on him, said that a tenth
(‘ushr) is due on183 whatever the land yields whether little or much,
irrespective of whether it was irrigated by flowing water184 or the sky
watered it,185 except firewood, bamboo and grass.186
Abū Yūsuf and Muḥammad, may Allah have mercy on them, said
that ‘ushr is not obligatory except for that which has lasting fruit, [and
that is] when it reaches five awsuq.
One wasq187 is sixty ṣā‘s,188 according to the ṣā‘ of the Prophet .

According to [Abū Yūsuf and Muḥammad], may Allah have mercy

on them, there is no ‘ushr on vegetables.

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 ere is half of a tenth (‘ushr),189 according to both verdicts,190 on
that which is watered with large buckets, a water-wheel or a water-
drawing camel.
Abū Ḥanīfah, may Allah have mercy on him, said that of those
that are not measured by the wasq, like saffron and cotton, the tenth
(‘ushr) becomes obligatory when its value reaches the value of five
awsuq, according to the cheapest [crop] that is [evaluated] under the
wasq [method of measurement]. Muḥammad, may Allah have mercy
on him, said that a tenth becomes obligatory when the produce
reaches five units of the highest [unit] that is used to determine its
category. erefore, for cotton, he took five loads191 [as the standard]
and for saffron, [he standardised on] five maunds (mann).192

From honey, be it little or much,193 a tenth is due when it is

acquired from land that is [also] subject to ‘ushr. Abū Yūsuf, may
Allah have mercy on him, said that there is nothing [due] on it until it
amounts to ten azqāq,194 but Muḥammad, may Allah have mercy on
him, said [that there is nothing due from it until it amounts to] five
afrāq. One faraq is thirty-six [Iraqi] riṭls.
ere is no tenth due from the produce of kharāj195 land.

THOSE TO WHOM IT IS PERMITTED TO

PAY ZAKĀH AND THOSE TO WHOM IT IS
NOT PERMITTED

 E l d
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 ose Entitled

Allah said:
“Zakāh is for: the poor, the destitute, those who collect it,
reconciling people’s hearts, freeing slaves, those in debt,
spending in the Way of Allah, and travellers. It is a legal
obligation from Allah. Allah is All-Knowing, All-Wise.”
(At-Tawbah 9:60)

ese are eight categories, and of them, “al-mu’allafati qulūbu-

hum – those whose hearts are to be reconciled” has lapsed because
Allah has honoured Islam and freed [it of need] of them. [e
remainder of the seven categories are:]

1. e poor person (faqīr) is someone who has very few things.

2. e destitute person (miskīn) is someone who has nothing at all.

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 3. e one who administers zakāh (‘āmil) is [someone] whom the
Imam196 pays when he carries out work [in the administration,
collection and due disposal of zakāh] according to how much wor
he has done.
4. Slaves (fi’r-riqāb) are the mukātab [slaves]197 who are to be
assisted in securing release from their bondage [of slavery].
5. e one in debt (ghārim) is someone who is obligated with a debt
6. In the way of Allah (fī sabīli’llāh) is someone who is prevented [by
poverty] from struggling in the cause of Allah.
7. e wayfarer (ibn as-sabīl) is someone who has wealth in his own
land but he himself is currently in another place in which he has
nothing.
ese are the avenues of zakāh. e owner may pay to all of them,
or he may limit [the payment] to only one category.

ose Not Entitled

1. It is not permitted [for anyone] to pay zakāh to a dhimmī,

2. Nor should a masjid (mosque) be built with it,

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3. Nor a deceased person be shrouded with it,
4. Nor a slave bought to be set free,
5. Nor should it be payed to a wealthy person.
e one paying zakāh (muzakkī) is not to pay it to:
6. His [own] father, grandfather, however high,
7. His [own] son, grandson, however low,
8. His mother, grandmothers, however high, and nor to
9. His [own] wife.
10. e wife is not to pay it to her husband, according to Abū
Ḥanīfah, may Allah have mercy on him, but they,198 may Allah
have mercy on them, said that she may pay [it] to him.

One does not pay it to:

1. His own mukātab [slave],
2. Nor his slave [in his ownership],
3. Nor the slave owned by a wealthy person,
4. Nor the son of a wealthy person if he is a minor.

One does not pay it to Banū Hāshim and they are:

1. e family of ‘Alī,
2. e family of ‘Abbās,

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 3. e family of Ja‘far,

4. e family of ‘Aqīl,
5. e family of Ḥārith ibn ‘Abd al-Muṭṭalib,
6. Nor their freed slaves.

Abū Ḥanīfah, may Allah have mercy on him, said that if one pays
the zakāh to a person believing him to be a poor person, and then it
becomes clear to him that he is wealthy, or [pays it to] a hāshimī, or a
disbeliever (kāfr), or he gives it to a poor person in the dark and then
it becomes clear to him that it is his [own] father or son, there is no
[obligation] upon him to pay again, but Abū Yūsuf, may Allah have
mercy on him, said that repayment is [incumbent] upon him.
If one paid it to a person and then realised that he was his [own]
slave, or his own mukātab [slave], such payment is not valid according
to their verdicts, all of them.199

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 e payment of zakāh is not permitted to someone who owns
niṣāb in any [form of ] property whatsoever, but such payment is
permitted to be made to someone who owns less than that, even
though he may be healthy and earning [an income].
e transference of zakāh from one land200 to another land is
disapproved and the zakāh of each group is to be distributed within
them,201 unless one needs to transfer it to his [deserving] relatives or
to a group who are needier of it than those of his own land.

ṢADAQAT AL-FIṬR

e ṣadaqat al-fiṭr (or fiṭrah) is incumbent upon every free Muslim,

when he is the owner of the amount of the niṣāb over and above his
residence, his clothes, his assets, his horses, his weapons and his slaves
kept for personal service [not for sale].202
He pays it on behalf of himself, his minor children and his slaves
who are kept for service, but he is not to pay it on behalf of his wife

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nor on behalf of his adult children, even though they may be among
his dependents.
He is not to pay it on behalf of his mukātab [slave], his slaves kept
for trade or the slave shared between two partners and there is no
[obligation of paying] fiṭrah on either of the two [partners].
e Muslim pays fiṭrah on behalf of his non-Muslim slave.

e Amount of Fiṭrah

e [amount of ] fiṭrah is one-half ṣā‘ of wheat, or one [full] ṣā‘ of

dates, raisins or barley.
e ṣā‘, according to Abū Ḥanīfah and Muḥammad, may Allah
have mercy on them, is eight Iraqi riṭls, but Abū Yūsuf, may Allah
have mercy on him, said, “[One ṣā‘ is equal to] five riṭls plus one-third
of a riṭl (5.33 riṭls).”
e obligation of fiṭrah is connected to the rising of the second
dawn203 on the Day of Fiṭr.
Whoever dies before that, [the payment of ] his fiṭrah is not
obligatory [upon him], and whoever becomes Muslim or is born after
the dawning of the fajr, his fiṭrah is not obligatory.

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 It is recommended for people to pay out the fiṭrah on the day of
fiṭr, before proceeding to the place of [‘Īd] prayer, but if they have
[paid] it in advance before the Day of Fiṭr it is valid, and if they delay
it till [after] the Day of Fiṭr, its obligation does not lapse and its
payment is [still] obligatory upon them.

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 ṢAWM – FASTING

Types of Fasting (Ṣawm)

Fasting (ṣawm) is of two types:

1. Obligatory and
2. Supererogatory.
e obligatory [type of fast] is of two types:
1. Of it is [that] which is connected to specific time, like the fasting
of Ramadan and of specific vows (nadhr). Its fast is permitted wit
an intention formed during the night, and if one does not make
the intention until the morning, the intention [made] between
that [time] and the declination of the sun [from its meridian] is
sufficient for him, and

146
 2. e second type [of fast] is [that] which becomes necessary to
fulfil, like the qaḍā’ of Ramadan, the unrestricted vow and [fasting
for] expiations (kaffārāt). e fasting of this [type], and likewise,
the fast for ẓihār,204 is not permitted except with an intention
[formed] during the night.
As to supererogatory [fasts], all of them are permitted with an
intention [formed] prior to the declining [of the sun].

Ramadan Moonsighting

It is incumbent upon people to seek the [new] crescent on the

twenty-ninth day of Sha‘bān.205 If they see it, then they fast [the
following day], but if it is concealed from them, they complete the
period of Sha‘bān as thirty days. en they fast [Ramadan].206
Whoever sees the crescent of Ramadan by himself, is to begin
fasting, even if the Imam207 does not accept his testimony.
If there is an obstruction in the sky, the Imam accepts the
testimony of a single honest person for the sighting of the crescent
[moon of Ramadan], be that person a man or a woman, freeman or
slave, but if there is no obstruction in the sky, the testimony is not

147
accepted unless a large group [of people] sees it,208 upon the reporting
of which [definite] knowledge can be based.209
e timing of the fast is from the instance of the dawning of the
second fajr until the setting of the sun.

e Meaning of Fasting
Fasting is:
1. Abstinence from:
i. Eating,
ii. Drinking, and
iii. Sexual intercourse,
2. During the day,
3. With intention.

Miscellaneous Issues Pertaining to Fasting

If the person who is fasting (ṣā’im) eats, drinks or has sexual
intercourse out of forgetfulness, he has not broken his fast. [Similarly]
if he sleeps and has a seminal discharge,210 looks at a woman and
ejaculates, applies oil [to his body], undergoes cupping, applies kohl,
or kisses [a woman], he has not broken his fast.

If he ejaculates because of kissing or touching, then he is obligated

to do qaḍā’, but is not obligated to expiate it. ere is no harm in

148
kissing if one is in control of oneself, and it is disapproved [to kiss] if
not in control of oneself.

If vomiting overwhelms him,211 his fast is not broken, but if he

deliberately induces vomit such as fills his mouth, then qaḍā’ is [due]
upon him.
Whoever swallows a pebble, a [piece of ] metal or a pit,212 has
broken his fast and makes up [the fast by way of ] qaḍā’.

Whoever deliberately:
1. Has sexual intercourse in either of the two passages, or
2. Eats or drinks that by which nourishment is acquired or by which
his medical requirement is achieved,
is obligated to [make up the fast by] qaḍā’ as well as expiate it.

e expiation [of fasts] is like the expiation of ẓihār.213

Whoever has sexual intercourse in other than the vaginal passage

(farj),214 and ejaculates, then qaḍā’ is due upon him but no expiation is
due upon him.

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 ere is no expiation for violating a fast outside of [the fast] of
Ramadan.

Whoever takes an enema,215 sniffs [something through his

nostrils], pours drops into his ear, treats a body cavity or a wound with
moist medicine and it reaches his stomach or his brain, has invalidated
his fast.216

If one pours drops [of medicine] into his urethra, he does not break
his fast, according to Abū Ḥanīfah and Muḥammad, may Allah,
exalted is He, have mercy on them, but Abū Yūsuf, may Allah, exalted
is He, have mercy on him, said that he does break the fast.

Whoever tastes something with his mouth, does not break his fast,
but it is disapproved for him.
It is disapproved for a woman to chew food for her child, if there is
[another] way out for her.
e chewing of gum does not make the one who is fasting break
the fast, though it is disapproved.

150
 Whoever is ill in [the month of ] Ramadan, and fears [that], if he
fasts, his illness will intensify, should not fast and [he] performs it as
qaḍā’.
If one is a traveller, who is not harmed by fasting, then that he fast
is better, but it is permitted for him not to fast but to delay the
performance [of the fast].
If the ill person or the traveller dies, and they were both in that
state [of illness or journey], qaḍā’ is not binding upon them. If,
however, the ill person recovers [from his illness], or the traveller
becomes a resident and, thereafter, they die, qaḍā’ is binding upon
them to the extent of the duration of their becoming well or adopting
residence [respectively].217

[With regards to] the qaḍā’ of [the fasts of ] Ramadan, one may
separate them, if he wants, or if he wants, he may perform them
successively. If one delays [the qaḍā’] until the following Ramadan
begins, he should fast the second Ramadan and perform the first
[Ramadan’s missed fasts] by way of qaḍā’ after it, and there is no
redemption (fidyah) due from him.

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 When a pregnant woman and a breastfeeding woman are
apprehensive for themselves or [for] their child, they break the fast,
and fast by way of qaḍā’, and there is no redemption due from them.

e decrepit old person who is not able to fast should not fast. He
should [instead] feed one needy person for each day [of missed
fasting] just like one would feed for expiations.

Whoever dies and the qaḍā’ of Ramadan was due from him, and
he had put it in his will, his executor (walī) should feed on his behalf
one destitute person for each day [missed] a half ṣā‘ of wheat or a ṣā‘
of dates or barley.

Whoever begins a voluntary fast and then violates it, should make
it up by way of qaḍā’.

When a minor attains [the age of ] majority or a non-Muslim

becomes Muslim in Ramadan, they abstain [from things that nullify
the fast] for the rest of [that] day of theirs, and they fast after that
[day]. ey do not make up by way of qaḍā’ whatever [fasts] have
passed.218

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 Whoever is overcome by unconsciousness during Ramadan does
not make up as qaḍā’ [the fast of ] the day in which the
unconsciousness took place, but he should make up as qaḍā’ whatever
[fasts] come after it.
When the insane person recovers [from his insanity] for a part of
Ramadan, [after Ramadan] he should make up by way of qaḍā’
whatever [fasts] have passed, and he should fast whatever [days]
remain [in that month].

When a woman menstruates or enters the postnatal period, she

should break her fast219 and make it up by way of qaḍā’ when she
becomes pure.

When a traveller arrives [at his destination], or a menstruating

woman attains purity during [any] part of the day, they should abstain
from food and drink for the remainder of [that] day of theirs.

Whoever wakes up for the pre-dawn meal and believes that fajr has
not yet dawned or breaks his fast believing that the sun has set, and

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then it becomes evident [to him] that the fajr had already dawned or
that the sun had not yet set, should perform [one fast] as qaḍā’ for that
day, but there is no expiation due from him.

‘Īd al-Fiṭr Moonsighting

Whoever alone sees the crescent of the [‘Īd of ] fiṭr, should not
break his fast.
When there is an impediment in the sky [which hinders the
sighting of the moon], the Imam should not accept for [the sighting
of ] the crescent of the [‘Īd of ] fiṭr anything but the testimony of two
men, or one man and two women. However, if there is no obstruction
in the sky, he should not accept anything except the testimony of a
group by whose reporting [definite] knowledge comes about.

I‘TIKĀF – SECLUSION

I‘tikāf is a recommended [act],220 and it is [defined as] staying

inside the mosque,221 with fasting and [with] the intention of i‘tikāf.

Sexual intercourse, fondling and kissing are forbidden (ḥarām) for

someone in i‘tikāf (mu‘takif), and if he ejaculates due to kissing or

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fondling, his i‘tikāf is nullifed, and [making it up by] qaḍā’ is due from
him.

Someone who is in i‘tikāf is not to leave the mosque except for a

necessity or for the Jumu‘ah (Friday prayer). ere is no objection to
him selling and buying in the mosque without making the goods
present [in the mosque]. He should only speak of good [things], but
total silence is disapproved for him.

If someone in i‘tikāf has sexual intercourse, whether by night or by

day, forgetfully or deliberately, his i‘tikāf becomes void. If he leaves the
mosque for a moment without a [valid] excuse, his i‘tikāf becomes
void, according to Abū Ḥanīfah, may Allah have mercy on him, but
they,222 may Allah have mercy on them, said that it is not void unless
it is for more than half a day.

Whoever binds himself to the i‘tikāf of [a number of ] days, their

i‘tikāf along with their nights is binding upon him, and they are to be

155
done consecutively, even if the consecutive order is not stipulated in
them.

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 ḤAJJ – PILGRIMAGE

e Stipulations of Obligation

Ḥajj is obligatory on free Muslims, who are adult, sane and

healthy, when they are able to get provisions for the journey and a
mount [for travel], over and above [the cost of their] residence and of
what is unavoidably needed, and over and above maintenance
expenses for their families until the time of their return, and [as long
as] the route is safe.

It is required with respect to a woman that there is a maḥram223

or her husband to be with her, who perform the ḥajj with her. It is
not permitted for her to perform the ḥajj without [one of ] these two
if the journey between her and Makkah is three days or more.

MAWĀQĪT GEOGRAPHIC LIMITS

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 MAWĀQĪT – GEOGRAPHIC LIMITS

e mawāqīt224 (limits) that a person is not to cross except as a

muḥrim (someone who is in the state of iḥrām):
1. For the people of Madīnah, it is Dhu’l-Ḥulayfah,
2. For the people of Iraq, it is Dhāt ‘Irq,
3. For the people of Syria, it is al-Juḥfah,
4. For the people of Najd, it is Qarn, and
5. For the people of Yemen, it is Yalamlam.225
If someone adopts the state of iḥrām before these mawāqīt it is
permissible. Whoever [resides] within the mawāqīt, then his mīqāt is
[at] al-Ḥill.226 Whoever is at Makkah, then his mīqāt is the Ḥaram
[itself ] for the ḥajj, and it is al-Ḥill for the ‘umrah.

Ihrām – the Ḥajj Costume

When one intends [to enter the state of ] iḥrām, he takes a ghusl
or performs wuḍū’, [but] ghusl is better.

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 One dons two new, or washed, garments, a wrap for the lower
half of the body (izār) and an upper covering (ridā’), applies perfume,
if he has any, and prays two rak‘ahs and says:

“Allāhumma innī urīdu’l-ḥajja, fa yassir-hu lī, wa taqabbal-hu

minnī – O Allah, I intend to perform the ḥajj, so make it easy for me
and accept it from me.”

Talbiyah – the Ḥajj Chant

ereafter, following his prayer, he says the talbiyah.

If he is performing the ḥajj alone [as ifrād] then he intends by his

talbiyah the ḥajj, and the talbiyah is to say:

“labbayk’allāhumma labbayka, labbayka lā sharīka laka, labbayka,

inna’l-ḥamda wa’n-ni‘mata laka wa’l-mulka, lā sharīka laka – here I
am, at Your service, o Allah, here I am at Your service. Here I am at
your service, You have no partner, here I am at Your service. All
praise and all bounty is for You, and all sovereignty. You have no
partner.”

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 It is not desirable to leave out any of these words, but if he adds to
them it is permissible.

Prohibitions for the Muḥrim

When someone says the talbiyah, he has entered iḥrām,227 and so

let him abstain from whatever Allah has prohibited of obscenity,
immoralities and quarrelling.

He should not kill prey, point [someone] towards it, nor direct
[someone] towards it.

He should not wear a shirt, trousers, turban, cap, an outer

garment or boots, unless he does not find sandals – in which case he
is to cut them below the ankles.

He is not to cover his head or his face. He is not to apply

perfume.228

He is not to shave his head or the hair of [any part of ] his

body.229
He is not to trim his beard or his nails.

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 He is not to wear a cloth dyed in waras (a yellow dye), saffron or
safflower, unless it is washed and the colour does not exude.230

Allowances for the Muḥrim

ere is no objection to taking a bath, entering a public bath,

seeking shade in a room or under a canopy, or tying a money-belt
around the waist.

He should not wash his head or his beard with althaea.231

He should chant the talbiyah plentifully following the prayers and

whenever he ascends a height or descends [into] a valley, meets a
group of riders, or at the time before dawn (saḥr).232

IFRĀD
Ṭawāf al-Qudūm – Circumambulation upon
Arrival233

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 When one enters Makkah, he begins at al-Masjid al-Ḥarām.
When he sets his eyes upon the House (the Ka‘bah), he says takbīrs
(allāhu akbar) and tahlīls (lā ilāha illa’llāh), then begins at the Black
Stone (al-Ḥajar al-aswad); he faces it and says takbīrs and tahlīls,
whilst raising both his hands with the takbīr. He should salute it and
kiss it if he can, without causing annoyance or harm234 to any
Muslim. en he begins with his right side that is adjacent to the
door [of the Ka‘bah], having before that placed the top sheet of his
upper covering sheet under the right shoulder and over the left
shoulder (iḍṭibā‘),235 and circumambulates (in ṭawāf ) the House in
seven circuits.

He makes his circumambulations outside the ḥaṭīm236 and trots

(ramal)237 in the first three circuits and walks in the remainder in his
normal gait [with stillness and dignity]. He should salute238 the
[Black] Stone each time he passes by it, if he can, and end his
circumambulation with saluting [the Black Stone].

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 en he comes to the Station [of Ibrāhīm] and prays two units at
it, or wherever within the Masjid it is possible.
is ṭawāf is the ṭawāf al-qudūm,239 and it is sunnah, not
obligatory. ere is no [requirement] for the residents of Makkah [to
perform] the ṭawāf al-qudūm.

Sa‘y – Going Vigorously and Quickly240

Between Ṣafā and Marwah

en one proceeds to [the mount of ] Ṣafā and ascends it. He

faces the House, says the takbīr, asks for blessings on the Prophet and
supplicates Allah, exalted is He, for his needs.

en he descends towards [the Mount of ] Marwah and walks at

his normal gait. When he reaches the middle of the valley, he goes
quickly and vigorously between between the two green lines, until he
comes to [the mount of ] Marwah and ascends it. [Here] he does as

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he did on Ṣafā. is is one circuit. So, he performs seven circuits,
beginning at Ṣafā and ending at Marwah.241

en he remains in Makkah in iḥrām, circumambulating the

House whenever he wishes.
One day before242 the day of tarwiyah,243 the Imam delivers an
address244 in which he instructs people about the departure to Minā,
the prayer at ‘Arafāt, the standing [at ‘Arafah] and the [ṭawāf] al-
ifāḍah – the circumambulation of ‘pressing on’.245
When he has prayed the fajr [prayer] on the day of tarwiyah in
Makkah, he moves out towards Minā and remains there until he has
prayed the fajr [prayer] on the day of ‘Arafah. en he heads towards
‘Arafāt and stays there.

Staying at ‘Arafah

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 On the day of ‘Arafah, when the sun declines,246 the Imam leads
the people in the ẓuhr and ‘aṣr [prayers] beginning with the address;
he delivers two addresses prior to the prayer in which he teaches
people the prayer, stopping on ‘Arafah and Muzdalifah, pelting [with
stones] at the jamrahs, the sacrifice (naḥr), shaving [the head] and
the ṭawāf az-ziyārah (the circumambulation of visiting). He leads
them in ẓuhr and ‘aṣr, within the time of ẓuhr, with one adhān and
two iqāmahs.

Whoever prays ẓuhr in his own camp on his own prays each of
them at its time, according to Abū Ḥanīfah, may Allah have mercy
on him, but Abū Yūsuf and Muḥammad, may Allah have mercy on
them, said that the person who performs the prayer separate from the
congregation (munfarid) combines them both.

en he heads towards the station (mawqif )247 and stays close to
the Mount [of Mercy ( Jabal ar-Raḥmah)]. Apart from Baṭn ‘Urnah,
the whole of ‘Arafāt is a [ritual] station.

e Imam ought to stop at ‘Arafah on his mount, to supplicate

and instruct the people regarding the rites [of ḥajj].
It is recommended to take a bath prior to the staying at
‘Arafah,248 and to exert oneself in making supplications.
S M d lf h
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 Staying at Muzdalifah

When the sun has set,249 the Imam and the people with him pour
forth at their normal pace until they come to Muzdalifah, where they
alight. It is recommended that they alight close to the mountain
upon which is the hearth (mīqadah) called Quzaḥ.250
e Imam leads the people in the prayer of maghrib and ‘ishā’
[combined] at the time of ‘ishā’, with an adhān and an iqāmah.
Whoever prays the maghrib [prayer] along the way, it is not valid
according to Abū Ḥanīfah and Muḥammad, may Allah have mercy
on them.251

When fajr dawns, the Imam leads the people in the fajr [prayer],
during the dark period of the night (ghalas). en the Imam stands,
and the people stand with him and he makes supplication. e whole
of Muzdalifah is a station (mawqif ) apart from Baṭn Muḥassir.

Minā

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 en, before sunrise, the Imam and the people with him pour
forth until they arrive at Minā. [Here,] one begins with the jamarat
al-‘aqabah, pelting it, from the bottom of the valley, with seven
stones like small chips of gravel, with every stone pronouncing the
takbīr. One does not stand next to it [but keeps moving forwards]
and discontinues [saying] the talbiyah with the first stone [throw].

en, if he wishes,252 he slaughters [an animal] then shaves [his

head] or trims [his hair], but shaving [the head] is better. [Now,]
everything has become lawful for him except (sexual intercourse
with) women.

Ṭawāf az-Ziyārah – Circumambulation of

Visiting253

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 One then comes [back] to Makkah on that day of his or the day
after or the day after that254 and circumambulates the House [for]
the ṭawāf az-ziyārah (circumambulation of visiting), [which is] seven
circuits. If he had performed sa‘y between Ṣafā and Marwah after the
ṭawāf al-qudūm (circumambulation of arrival) he does not perform
ramal with this circumambulation, nor is there sa‘y due from him. If
he had not performed sa‘y [after the ṭawāf al-qudūm], he performs
the ramal in this circumambulation and performs sa‘y after it, on the
basis of what we have mentioned earlier, and [sexual intercourse
with] women has become lawful to him.

is is the circumambulation which is an obligation in the ḥajj.

Delaying it for more than these [three] days is disapproved. If he
delays it beyond that, atonement [by sacrificing an animal] is binding
upon him, according to Abū Ḥanīfah, may Allah have mercy on him,
but they,255 may Allah have mercy on them, said that there is nothing
due from him [as an atonement]. en he returns to Minā and stays
there.

Ramy – Casting Stones

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 When the sun declines [from its meridian] on the second day of
the days of naḥr,256 one pelts all three jamrahs, beginning with the
one that is adjacent to the Masjid [al-Khayf ] casting seven stones at
it, proclaiming the takbīr with every stone [throw]. en, he stops
next to it and supplicates. After that, he pelts the one next to it in the
same way and stops beside it [to supplicate]. en he pelts the
jamarat al-‘aqabah in the same way, but he should not stop next to it.

e following day,257 he pelts the three jamrahs after the

declination of the sun [from the meridian], in the same way.

Whenever he wishes to hasten the return, he returns to Makkah,

but if he wishes to stay [at Minā for another night], then he pelts the
three jamrahs on the fourth day,258 after the declination of the sun
[from the meridian], in the same way.

If he advances the casting [of stones] on this day259 to before the

declining of the sun [and] after the dawning of fajr, it is permitted,
according to Abū Ḥanīfah, may Allah have mercy on him, but
they,260 may Allah have mercy on them, said it is not permissible.261

It is disapproved for someone to send his luggage to Makkah

while [he himself ] stays on until he has cast [all the stones].

Ṭawāf aṣ-Ṣadr – Farewell Circumambulation262

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 When someone returns to Makkah, he alights at Muḥassab, then
he circumambulates the House with seven circuits without
performing ramal in them. is is the ṭawāf aṣ-ṣadr – farewell
circumambulation – and it is incumbent [on all] except for the
residents of Makkah. After that, he returns to his household.

Miscellaneous Issues Pertaining to Ḥajj

If the person in iḥrām does not enter Makkah, but heads

[directly] towards ‘Arafāt, and stands there according to the manner
we have mentioned earlier, the [obligation of ] ṭawāf al-qudūm falls
from him, and there is nothing [due as atonement] from him for
omitting it.

Whoever reaches the staying at ‘Arafah between the declining of

the sun [from its meridian] on the day of ‘Arafah until the dawning
of the fajr on the day of sacrifice (naḥr), has secured the ḥajj.

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 Whoever passes through ‘Arafah while asleep or unconscious, or
unaware that it was ‘Arafāt, that suffices for him [with respect to the
obligation] of staying [at ‘Arafāt].

e woman, in all of that is like the man, except that she does not
uncover her head, although she does unveil her face.
She does not raise her voice with the talbiyah, or perform the
ramal in the circumambulation, or perform the sa‘y between the two
green lines, nor does she shave [her head], but she clips [her hair].

QIRĀN

According to us, qirān is better than tamattu‘ and ifrād.

e description of qirān is that one adopts the iḥrām for ‘umrah

(lesser pilgrimage) and for ḥajj simultaneously, from the mīqāt.

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 Following the prayer [of two units], one says: “ Allāhumma innī
urīdu’l-ḥajja wa’l-‘umrata, fa yassir-humā lī, wa taqabbal-humā minnī
– O Allah, I intend to perform ḥajj and ‘umrah, so make them easy
for me and accept them from me.”

When he enters Makkah, he begins with the circumambulation,

circumambulating the House in seven circuits, performing ramal in
the first three of them, and walking in the remainder at his normal
gait. After that, he performs sa‘y between Ṣafā and Marwah. ese
are the actions of ‘umrah.

ereafter, after sa‘y, he circumambulates performing the ṭawāf al-

qudūm. He performs sa‘y between Ṣafā and Marwah for ḥajj, just as
we have explained with respect to someone performing ifrād.

When someone pelts the jamrat [al-‘aqabah] on the day of

sacrifice (naḥr), he slaughters a goat, a cow, or a camel (badanah),263

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or [gives] one-seventh of a camel (badanah) or one-seventh of a cow.
is, is the sacrifice (dam) of qirān. If, however, he does not possess
anything to slaughter, he should fast three days during the ḥajj, the
last of which is the day of ‘Arafah.264 If he delays the fast until the
day of sacrifice (naḥr) falls [due], then nothing is valid for him other
than sacrifice of an animal (dam).265 en he fasts seven days when
he returns to his household, but if he fasts them in Makkah after
finishing the ḥajj, it is valid.

If someone performing qirān266 does not enter Makkah but heads

[directly] to ‘Arafāt, he becomes someone who leaves his ‘umrah by
standing [at ‘Arafah], and the sacrifice of an animal of qirān lapses
from him, but sacrifice of an animal for leaving the ‘umrah is due
from him, and so is [making up the ‘umrah in] qaḍā’.267

TAMATTU‘

According to us, tamattu‘ is better than ifrād.

e mutamatti‘ (person who performs tamattu‘) is of two types:
the mutamatti‘ who drives the hady (sacrificial animal as offering for
the ḥajj), and the mutamatti‘ who does not drive the hady.

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 e description of tamattu‘ is that one begins at the mīqāt, [where
he] adopts the iḥrām for ‘umrah and then enters Makkah, and
performs the circumambulation for it (‘umrah), does sa‘y and shaves
[his head] or clips [his hair], at which point he is released from his
‘umrah.

He discontinues the talbiyah when he begins the

circumambulation, and remains in Makkah free from iḥrām.

On the day of tarwiyah, he should adopt iḥrām for ḥajj from the
al-Masjid al-Ḥarām. He should do whatever the one performing the
ḥajj ifrād does, and the sacrifice of an animal (dam) of tamattu‘ is due
from him, but if he does not find that which he can slaughter, he
should fast three days during the ḥajj, and seven when he returns to
his household.

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 When the mutamatti‘ wants to drive the hady, he should adopt
the iḥrām, and [then] drive his hady. If it is a camel (badanah), he
should garland its neck with a leather water-bag or a sandal. He
should mark (ish‘ār) the camel, according to Abū Yūsuf and
Muḥammad, may Allah have mercy on them, and that is to slit its
hump from the right side, but according to Abū Ḥanīfah, may Allah
have mercy on him, he should not mark [it].

When he enters Makkah, he performs the circumambulation and

sa‘y. He does not become free [of the restrictions of iḥrām] until he
has worn it for the ḥajj on the day of tarwiyah.
If he advances the adopting of iḥrām prior to that [day of
tarwiyah], it is valid, and the sacrifice of an animal (dam) of tamattu‘
is due from him. When he shaves [his head] on the day of sacrifice
(naḥr) he has become free of both iḥrāms.

ere is no [ḥajj] tamattu‘ or qirān for residents of Makkah, and

for them there is only ifrād.

If the mutamatti‘ returns to his land after he is free from his

‘umrah without driving the hady, his tamattu‘ is void.

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 Whoever adopts iḥrām for ‘umrah prior to the months of ḥajj and
performs less than four circuits of circumambulation and then the
months of ḥajj begin and he completes them268 and adopts iḥrām for
ḥajj, is a mutamatti‘.

If he circumambulates four circuits or more for his ‘umrah before

the months of ḥajj, then performs ḥajj that same year of his, he is not
a mutamatti‘.

e months of ḥajj are Shawwāl, Dhu’l-Qa‘dah and the [first] ten

[days] of Dhu’l-Ḥijjah.
If someone advances the [adoption of the] iḥrām for ḥajj prior to
them, his iḥrām is valid and his ḥajj can be performed.

When a woman begins menstruating during her iḥrām, she takes

a bath, dons the iḥrām and does whatever the person performing ḥajj
does, except that she does not circumambulate the House until she
becomes pure. If she begins menstruating after the standing at
‘Arafah, and after the ṭawāf az-ziyārah, she may leave Makkah and
there is nothing due from her for leaving the ṭawāf aṣ-ṣadr.

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 OFFENCES ( JINĀYĀT) DURING ḤAJJ

If the person in iḥrām applies perfume, then expiation is due from

him. If he applies perfume to a complete limb or to what is more
than that, then sacrifice of an animal (dam) is due from him, and if
he perfumes less than a limb, then charity269 (ṣadaqah) is due from
him.

If someone wears a sewn garment or covers his head for a whole

day, then sacrifice of an animal (dam) is due from him, but if it is less
than that [period of time],270 then charity is due from him.

If one shaves a quarter of his head or more, then sacrifice of an

animal (dam) is due from him, but if he shaves less than a quarter,
then charity is due from him.

If someone shaves the cupping area of the neck, then sacrifice of

an animal is due from him, according to Abū Ḥanīfah, may Allah

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have mercy on him, but Abū Yūsuf and Muḥammad, may Allah have
mercy on them, said that ṣadaqah [is due from him].

If someone clips the fingernails of both hands and the toenails of

both feet, then sacrifice of an animal is due from him, and if he clips
the fingernails of one hand and the toenails of one foot, then sacrifice
of an animal is due from him. If he clips less than five different nails
from his hands and his feet, then charity is due from him, according
to Abū Ḥanīfah and Abū Yūsuf, may Allah have mercy on them, but
Muḥammad, may Allah have mercy on him, said sacrifice of an
animal is due from him.

If someone applies perfume, shaves [his head] or wears a sewn

garment with a [valid] excuse, then he is given a choice: if he wishes,
he may slaughter a sheep or goat, or if he wishes, he may give charity
to six needy persons of three ṣā‘s of food,271 or if he wishes, he may
fast for three days.

Conjugal Relations

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 If someone kisses [his wife]272 or fondles [her] with desire, then
sacrifice of an animal is due from him, whether he ejaculates or not.

Whoever copulates in either of the passages273 before standing at

‘Arafah, his ḥajj is invalidated and a sheep or goat is due from him [as
penalty]. He must continue the [remainder of the] ḥajj in the same
way that someone whose ḥajj is not invalid continues, and qaḍā’ [of
ḥajj] is due from him.
According to us, it is not incumbent on him to separate from his
wife when he performs the ḥajj as qaḍā’.

Whoever has sexual intercourse after standing at ‘Arafah, his ḥajj

is not invalidated, but a camel (badanah) is due from him. Whoever
has sexual intercourse after shaving [his head], a sheep or goat is due
from him. Whoever has sexual intercourse during ‘umrah, before he
has circumambulated [a minimum of ] four circuits, has invalidated it,
but he should continue with it [as normal] and [then] perform it as
qaḍā’, and a sheep or goat is due from him. If he has sexual
intercourse after he has circumambulated [a minimum of ] four

179
circuits, then a sheep or goat is due from him and his ‘umrah is not
invalidated, and neither is its qaḍā’ incumbent upon him.274
Whoever has sexual intercourse out of forgetfulness has the same
legal ruling as someone who has intentionally [engaged in] sexual
intercourse.

Impurity

Whoever performs the ṭawāf al-qudūm in a state of minor ritual

impurity then charity is due from him, and if he was in a state of
major ritual impurity then a sheep or goat is due from him.
If someone performs the ṭawāf az-ziyārah in a state of minor ritual
impurity, a sheep or goat is due from him, and if he is in a state of
major ritual impurity, then a camel (badanah) is due from him. It is
better for him to repeat the circumambulation as long as he is in
Makkah, and no slaughter is due upon him.
Whoever performs the ṭawāf aṣ-ṣadr in a state of minor ritual
impurity, charity is due from him, and if he is in a state of major
ritual impurity, then a sheep or goat is due from him.

Shortcomings

If someone omits three circuits or less than that from the ṭawāf
az-ziyārah, a sheep or goat is due from him, and if he leaves out four

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circuits or more, he remains in iḥrām forever until he performs their
circumambulation.

Whoever omits [a maximum of ] three circuits from the ṭawāf aṣ-

ṣadr, charity is due from him, and if he omits [all of ] the ṭawāf aṣ-
ṣadr, or [a minimum of ] four circuits from it, then a sheep or goat is
due from him.

Whoever omits the sa‘y between Ṣafā and Marwah, then a sheep
or goat is due from him, and his ḥajj is complete.

Whoever moves out of ‘Arafāt before the Imam, the sacrifice of an

animal is due from him.
Whoever omits the staying at Muzdalifah, the sacrifice of an
animal is due from him.

Whoever omits pelting the jamrah for all of the days, the sacrifice
of an animal is due from him. If he omits pelting any one of these
three jamrahs, then ṣadaqah is due from him. If he omits pelting the
jamrat al-aqabah on the day of sacrifice (naḥr), then the sacrifice of
an animal is due from him.

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 Whoever delays shaving [the head] until the days of sacrifice have
passed, sacrifice of an animal is due from him, according to Abū
Ḥanīfah, may Allah have mercy on him, and likewise, if he delays the
ṭawāf az-ziyārah, according to Abū Ḥanīfah, may Allah have mercy
on him.

Hunting

When a person in iḥrām kills game or he guides someone who

kills it to it then recompense is due from him. In this matter, the
deliberate, the forgetful, the first-time [offender] and the repeat
[offender] are [all] deemed the same.

According to Abū Ḥanīfah and Abū Yūsuf, may Allah have mercy
on them, the recompense is that the game is valued at the place

182
where it was killed or the location closest to it. If it was in the wild,
two equitable persons value it.
en he has a choice with regards to its pricing: if he wants, he
may purchase an offering (hady) and slaughter it if the value is that of
an offering, or if he wants, he may buy food with it and give it as
charity to the destitute, each [receiving] a half ṣā‘ of wheat, a ṣā‘ of
dates, or a ṣā‘ of barley, or if he wants, he may fast one day for every
half ṣā‘ of wheat, or one day for every ṣā‘ of barley.

If there is a surplus of food of less than half a ṣā‘, then he has a

choice; if he wants, he may give it as charity, and if he wants, he may
fast for it a whole day275
Muḥammad, may Allah have mercy on him, said that for [the
offence of hunting] game, it is obligatory, [to pay a recompense]
similar to what resembles it if possible. us, for a deer it is a sheep
or goat, for a hyena it is [also] a sheep or goat, for a rabbit it is a
female kid, for an ostrich it is a badanah, for a jerboa it is a four-
month old female kid.

Whoever injures game, plucks its hair or cuts off one of its limbs,
is to compensate [for] whatever he has reduced in its value. If he
plucks the feathers of a bird or cuts the legs of the game [in such

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that] it exits from the category of one that can defend itself, then
upon him there is [liability for] its entire value.

Whoever breaks the egg of game, its value is due from him. If a
dead chick emerges from that egg, then from him there is due its
value as though it was alive.

ere is no recompense [to be paid] for killing a crow, kite, wolf,

snake, scorpion, mouse or savage dog, and there is nothing [as
liability] for killing mosquitoes, fleas or ticks.

Whoever kills a louse may give in charity whatever he likes, and

[similarly] whoever kills a locust may [also] give in charity whatever
he likes, and [in this regard] one date is better than a locust.

Whoever kills that whose meat is not eaten, like a predator and
the likes of it, then recompense is due from him, and its value shall
not exceed [that of ] a sheep or goat.

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 If a beast attacks someone in iḥrām and he kills it [in self-
defence], there is nothing [as liability] upon him.

If someone in iḥrām is forced by necessity into eating the meat of

game and he kills it, he [is liable to pay] recompense.

ere is no objection to someone in iḥrām slaughtering a goat,

cow, camel, chicken or domestic duck.

If someone kills a pigeon with feathered legs or a domesticated

deer, then recompense is due from him.

If the person in iḥrām slaughters game, then his slaughtered

animal is carrion which it is not lawful to eat.

ere is no objection if the person in iḥrām eats the meat of game

if it was hunted by someone not in iḥrām and [the hunter] slaughters
it, if the person in iḥrām did not direct him to it nor did he tell him
to hunt it.

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 For game of the Ḥaram, if a person not in iḥrām slaughters it,
[then he shall be liable for] payment of recompense.

If someone cuts the grass of the Ḥaram, or a tree which is not

owned [by a legal entity], nor is it of what people grow, then [the
payment of ] its value is due from him.

Everything that the performer of qirān does, out of what we have

mentioned in which there is, from the performer of ifrād due one
animal in sacrifice (dam), then there is due from [the person doing
qirān] two animals in sacrifice; one animal sacrificed for his ḥajj and
one animal sacrificed for his ‘umrah,276 unless he crosses the mīqāt
without [wearing] iḥrām, and thereafter dons iḥrām for ‘umrah and
ḥajj, [in which case only] one animal is due in sacrifice from him.

When two people in iḥrām participate in killing game of the

Ḥaram, a full recompense is due from each of the two, but if two
persons who are not in iḥrām participate in killing game of the
Ḥaram, [only] one recompense is due from them both.

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 When the person in iḥrām sells game or purchases it, the sale is
void.

IḤṢĀR – CONFINEMENT

When the person in iḥrām is held back by an enemy, or an illness

befalls him that prevents him from continuing [his ḥajj rites], it is
permissible for him to release [himself from the iḥrām], and it is said
to him: “Send a sheep or goat to be slaughtered in the Ḥaram.” He
takes an undertaking from someone who will take it on a specific day
in which it is to be slaughtered, then he releases himself from the
iḥrām.
If he is performing qirān, he should send two animals to be
sacrificed.277

Slaughtering an animal (dam) for having been kept back (iḥṣār) is

not permitted [anywhere] but in the Ḥaram. According to Abū
Ḥanīfah, may Allah have mercy on him, its slaughter is permitted
prior to the day of sacrifice (naḥr), but they,278 may Allah have mercy
on them, said that slaughtering on behalf of the person who has been
held back (muḥṣar – person in iḥrām in iḥṣār) intending ḥajj is not
permitted except on the day of sacrifice (naḥr).

187
 It is permissible for the person who has been held back from
‘umrah to slaughter whenever he wants.

When the person who has been held back from ḥajj releases
himself from iḥrām, one ḥajj and one ‘umrah are due from him, and
the person who has been held back intending ‘umrah is due to
perform qaḍā’.
One ḥajj and two ‘umrahs are due from the person performing
qirān.279

When the person who has been held back sends an offering
(hady) and takes an undertaking from them280 that they slaughter it
on a specific day, and then the condition of being held back ends, if
he is able to catch up to the offering and [also] the ḥajj, he is not
permitted to release himself from the iḥrām, and executing [the ḥajj
and sacrifice] is binding upon him. If he is able to catch up to the
offering but not the ḥajj, then he releases himself from the iḥrām. If,
however, he is able to catch up to the ḥajj but not the offering, it is
permitted for him to release himself from the iḥrām, on the basis of
istiḥsān (juristic preference).

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 Whoever is held back at Makkah and is prevented from the
standing [at ‘Arafah] and circumambulation [of the Ka‘bah], is
[understood to be] a muḥṣar,281 but if he is able to catch up to either
one of the two,282 then he is not a muḥṣar.

LOST RITES

Whoever adopts the iḥrām of ḥajj and then misses the standing at
‘Arafah until the sun rises on the day of sacrifice (naḥr), has missed
the ḥajj, and must perform the circumambulations, the sa‘y and
release himself from the iḥrām. [He is to] perform the ḥajj as qaḍā’ in
the following year, and there is no sacrifice of an animal (dam) due
from him.

e ‘umrah cannot be missed and it is permitted during the whole

year, except the five days during which its performance is
disapproved: the day of ‘Arafah, the day of sacrifice (naḥr), and the
three days of tashrīq.

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 ‘Umrah is sunnah. It [consists of ] iḥrām, circumambulation and
sa‘y.

OFFERING (HADY)

e minimum offering (hady) is a sheep or goat, and it is of three

kinds: camels, cows, sheep and goats.
In all of these, a two-year old or older is sufficient, except in [the
case of ] sheep [in which] a six-month old lamb is sufficient.

e offering is not permitted [if ] its [whole] ear or the major part
of it is severed, the tail is severed, the hand is severed, the foot [is
severed], or one with impaired eyesight, which is emaciated, or lame
that does not walk [all the way] to the place of the rite [of sacrifice].

e sheep or goat is permitted [to be slaughtered] for everything

except in two cases: someone who performs the ṭawāf az-ziyārah
while junub, and someone who has sexual intercourse after standing

190
at ‘Arafah. In these two cases, nothing is allowed but a camel
(badanah).

[With regards to] the badanah and the cow, either of the two can
be portioned on behalf of seven people, if each of the participants
intends it as an act of drawing closer283 [to Allah]. If any of them
wants his share of the meat, it is not valid for the rest284 as an act of
drawing closer (qurbah).

Consuming [the meat] from the offering which is done as a

voluntary act (taṭawwu‘), or for tamattu‘ and qirān is permissible, but
it is not permitted from the rest of the offerings.

Slaughtering the offering which is done as a voluntary act, or for

tamattu‘ and qirān is not permitted except on the day of sacrifice
(naḥr). Slaughtering the rest of the offerings is permissible at any
time one wants.

Slaughtering the offerings is not permitted except in the Ḥaram.

191
 It is permissible to give it away as charity to the needy of the
Ḥaram and to others, and notification of the offering is not
obligatory.

In the case of camels, stabbing at the base of the neck (naḥr) is

better, and in the case of cows and sheep, slaughtering (dhabḥ)285 is
better.

It is preferable for someone to undertake the slaughtering of [the

animal] himself, if he is able to do that well and to give its coverings
and its bridles away in charity, but he should not give them as
remuneration to the butcher.286

Whoever drives a camel (badanah) and is compelled to ride it may

do so, but if he has no need to do that, then he does not ride it. If it
has milk [lactating from its udder], he does not milk it, but rather, he
sprinkles its udder with cold water until the milk ceases [to flow].

Whoever drives an offering and it perishes, then if it was

supererogatory another one is not due from him, but if it was for an

192
obligation, then it is incumbent upon him to replace it with another.

If it suffered many defects, he should replace it with another, and

he may do whatever he wants with the defective [animal].

If the camel (badanah) perishes along the way; if it was

supererogatory, then he slaughters it [at the base of its neck], colours
its garland with its blood and strikes its side with [the garland].
Neither he and nor anyone else from [amongst] the people who have
no need eat of it.

If it was obligatory, he replaces it with another, and he does

whatever he likes with [the one that has perished].

One garlands the neck of the supererogatory offering, the

[offering of ] tamattu‘ and [that of ] qirān, but one does not garland
the neck of the animal sacrificed (dam) because of being held back
(iḥṣār) or the animal sacrificed (dam) for offences.

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 BAY‘ – SALES

THE CONDITIONS OF SALE

Sale (bay‘) is concluded by making an offer and [its] acceptance

when they are both [enacted] with words of the past tense.

When one of the two contracting parties offers to sell, the other
has a choice: if he wishes, he may accept within that session (majlis
al-‘aqd) and if he wishes, he may reject it.287

So, whichever of the two stands [and leaves] that session288 before
the acceptance [of the offer], the offer is void.

Once the offer and acceptance have taken place, the sale has been
enacted and neither of the two [parties] has any choice [of

194
rescission]289 except in [the case of ] a defect or in [the case of ] not
having seen [the object of sale].290

e considerations291 that are indicated, knowing their quantity is

not required in [the stipulations of ] the permissibility of the sale.292

Unspecified prices are not valid unless they are of known quantity
and description.293

e sale is permitted with on-the-spot payment or deferred

[payment, subject to] when the [period of ] deferment is known.294

Whoever does not specify the price (thaman) in the sale, it is

[determined] according to the predominant currency of the land.295
If, however, there are different currencies [in the land], the sale is
invalid, unless one of them is specified.296

e sale of food and all [types of ] seeds is permitted, by

measurement or without measurement, with a specific pot, the
volume of which is not known, or according to the weight of a
specific rock the value of which is not known.297

195
 Whoever sells a pile of food, each qafīz298 for one dirham, the sale
is permitted for one qafīz only, according to Abū Ḥanīfah, may Allah
have mercy on him. It is invalid for the rest [of the qafīzs] unless he
mentions all of its qafīzs.299 Abū Yūsuf and Muḥammad, may Allah
have mercy on them, however, said that it is valid in either case.

Whoever sells a flock of sheep and goats, each sheep or goat for
one dirham, the sale is invalid for all of them.300 And likewise, [it is
invalid] if one sells cloth by the cubit (dhirā‘), each cubit for one
dirham and does not nominate the complete [number of ] cubits.
Whoever purchases a pile of food for one hundred dirhams, on
the presumption that it is one hundred qafīzs, then finds it to be less
than that, the purchaser has a choice: if he wants, he may take what
there is with its share of the price,301 or if he wants, he may cancel
the sale. If he finds it to be more than that, then the excess is for the
seller.302

196
 Whoever buys cloth on the assumption that it is ten cubits [in
length], for ten dirhams, or [buys] land on the assumption it is one
hundred cubits [in length] for one hundred dirhams, then finds it to
be less than that, the buyer has the choice: if he wants, he may take it
at the full price [of ten dirhams], or if he wants, he may leave it.

If he finds it to be more than the cubits he had mentioned, then

[the excess] is for the buyer and the seller has no choice [but to give it
up at that price].

If [the seller] says, “I have sold it to you such that it is one

hundred cubits for [the price of ] one hundred dirhams, each cubit
being for one dirham,” and if [the buyer] finds it less [than that], he
has the choice: if he wants, he may take of it according to its share of
the price, or if he wants, he may leave it.

197
 If, however, he finds it to be more, then he has the choice: if he
wants, he may take it all, [on the basis of ] each cubit for one dirham,
or if he wants, he may cancel the sale.

If [the seller] says, “I have sold you this bale, on the basis that it
[consists of ] ten pieces of fabric, for one hundred dirhams, each piece
of fabric being ten [dirhams],” then if [the buyer] finds them to be
less [than that], the sale is permitted according to its share,303 but if
he finds them to be more, then the sale is invalid.

Whoever sells a house, its structure is included in the sale even

though [the seller] does not mention it, and whoever sells some land,
whatever date-palms and trees are within it are included in the sale,
even if [the seller] does not mention them, but crops are not included
in the sale of land unless specified.

Whoever sells date-palms or trees upon which there is fruit, its

fruit is for the seller, unless the purchaser stipulates it [to include the
fruit in the sale] when it is said to the seller, “Pick it, and deliver the
sold goods [to the buyer].”

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 Whoever sells fruit, [irrespective of whether] its ripening had
begun or not, the sale is valid and it is immediately incumbent on the
buyer to pick [the fruit], but if he stipulates that it has to be left on
the date-palm [or tree], the sale is invalid.

It is not permitted for someone to sell fruit and [at the same time]
exclude specific measures of it.304

It is permitted to sell wheat in its ear and legume in its pod.

Whoever sells a house, the keys of its locks are included in the
sale.

e wages of the person who measures [out the goods being sold]
(kayyāl) and of the money-checker (nāqid ath-thaman) are [due]
from the seller, whereas, the wages of the person who weighs the
money305 (wazzān ath-thaman) are [due] from the buyer.

199
 Whoever sells a commodity [in consideration] for a price, it is
said to the buyer, “Pay the money first.” once he has paid, it is said to
the seller, “[Now,] hand over the object of sale [to the buyer].”

Whoever barters a commodity for another commodity, or price

for price,306 it is said to both of them, “Hand them over [to each
other] simultaneously.”

KHIYĀR ASH-SHARṬ – OPTION

STIPULATED IN THE CONTRACT

e option stipulated in the contract is permitted in the sale for

[both] seller and buyer,307 and for them, the stipulated option is
[valid] for three days or less than that and it is not permitted for
more than that according to Abū Ḥanīfah, may Allah have mercy on
him, but Abū Yūsuf and Muḥammad, may Allah have mercy on
them, said that it is permitted [for more than three days] when one
names a definite period [of time].

200
 e option stipulated by the seller prevents the object of sale from
leaving his ownership, thus, if the buyer takes possession of it and it
perishes in his possession within the period of the stipulated option,
[the buyer] compensates [the seller] for its value.308

e option stipulated by the buyer does not prevent the object of

sale from leaving the ownership of the seller, but the buyer does not
own it [either], according to Abū Ḥanīfah, may Allah have mercy on
him, but Abū Yūsuf and Muḥammad, may Allah have mercy on
them, said that [the buyer] does own it. erefore, if it perishes in his
possession, it perishes according to its price [with the buyer], and
likewise, if it becomes defective.

Whomsoever the option (khiyār) is stipulated for has the right to

rescind the sale during the period of option, or he may declare it
valid.

If he considers it valid without the presence of his counterpart,309

it is valid, but it is not valid for him to cancel it unless the other
[party] is present.

201
 When the one who has the option dies, his option is void and it
does not transfer to his heirs.310

Whoever sells a slave on the understanding that [the slave] is a

baker or a scribe, then finds him contrary to that, the buyer has the
choice: if he wants, he may take him at the full price, or if he wants,
he may leave him.

KHIYĀR AR-RU’YAH – PURCHASE

SUBJECT TO EXAMINATION

Whoever buys that which he has not seen, the sale is permitted
and he has the choice when he does see it: if he wants, he may take it,
or if he wants, he may refuse it.

Whoever sells that which he has not seen, has no choice [in
that].311

If [the buyer] looks at the exterior of a pile [of foodstuffs], or at

the outside of fabric that is folded, or at the face of a slave-woman, or

202
at the face and posterior of a pack-animal, [then buys them] he has
no option [to rescind the sale].312

If he sees the courtyard of a house [and buys the house], he has no

option [to rescind the sale], even though he did not see its rooms.

Selling and buying by a blind person are allowed. He has the

choice [to rescind] when he buys and his [right of ] choice ceases:
when he handles the commodity – if it becomes known through
handling, or he smells it – if it becomes known through smelling, or
he tastes it – if it becomes known through tasting.313

In real estate, the option [to rescind the sale] does not cease until
it is described to him.

Whoever sells another’s property without his permission, the

owner has the option: if he wants, he may permit the sale, or if he
wants, he may rescind it. [e owner] has [the right] to permit [the
sale, only] when the item which is the subject of the contract (ma‘qūd
‘alayhi) [still] exists and both the contracting parties are [standing] by
their terms.314

203
 Whoever sees one of two garments and he buys them both, then
sees the other [garment], it is permitted for him to return both of
them.

Whoever dies while holding the [right to] purchase subject to

examination, his choice is annulled.315

Whoever sees something and, then buys it after a period [of

time], if it is [still] in the condition it was when he saw it then he has
no option [to rescind the sale], but if he finds that it has changed,
then he has the option [to rescind the purchase].

KHIYĀR AL-‘AYB – OPTION TO RESCIND A

SALE DUE TO A BLEMISH

When the buyer becomes aware of a blemish in the goods, he has

the choice: if he wants, he may take it [by paying] the complete
payment, or if he wants, he may reject it.

It is not permissible for him to retain it and take a reduction [in

price without permission of the seller].

204
 Everything which necessarily requires a decrease in the price [of
the goods] according to the practice of traders, is a blemish. Running
away, bedwetting and stealing are blemishes in a minor [slave] until
he attains majority. Once he has attained majority, then that is not a
blemish unless he makes a practice of it after [attaining] majority.316

Halitosis and malodorous armpits are blemishes in the slave-

woman but they are not blemishes in the [male] slave, unless they are
due to illness.317 [Similarly,] fornication and having an illegitimate
child are blemishes in the slave-woman, but not in the [male] slave.

When a blemish occurs [in the commodity when it is] with the
buyer, and then he discovers a blemish that existed [when the goods
were] with the seller, [the buyer] may return [to the seller] for
[payment corresponding to] the decrease [in the price] due to the
[original] blemish, but he may not return the commodity unless the
seller consents to take it [back] with its blemishes.

205
 If the buyer cuts the cloth, stitches it or dyes it, or he mixes
barley-mush with ghee, then becomes aware of a defect [in it], he
may [still] recover his decrease [in price],318 and the seller may not
take back [the commodity] as it is.319

Whoever buys a slave and sets him free, or [the slave] dies [being]
with him, then [the buyer] becomes aware of a blemish [in that
slave], he may recover the decrease [in the price the blemish
occasioned].

If the buyer kills the slave, or [the commodity] is food and he eats
it, then becomes aware of a blemish in him [or it], he does not
recover anything [as recompense from the seller for the blemish],
according to the verdict of Abū Ḥanīfah, may Allah have mercy on
him, but they [Abū Yūsuf and Muḥammad], may Allah have mercy
on them, said that he may recover the diminishment [in the price]
due to the blemish.

206
 Whoever sells a slave and the buyer sells him [to another buyer],
then he is returned [to the first buyer]320 due to a blemish; if [the
first buyer] had accepted him [back] due to the adjudication of the
judge (qāḍī), then he may return him to the first seller, but if he had
accepted him without the adjudication of the judge, then he may not
return him to his first seller.

Whoever buys a slave and the seller stipulates immunity from

[responsibility for] every blemish, [the buyer] may not return him
because of any blemish, even if [the seller] did not mention all the
blemishes nor enumerate them.321

BAY‘ FĀSID – INVALID TRANSACTIONS

When either of the two considerations, or both of them, are

ḥarām, then the sale is invalid, such as the sale of carrion, blood, wine
(khamr) or pigs, and likewise, when the object of sale is not owned,
such as a free person.

207
 e sale of the umm al-walad (slave-woman who bears her
master’s child), the mudabbar (slave who is to be freed at his master’s
death) and the mukātab (slave who is purchasing his freedom from
his master) are invalid.

Bay‘ Gharar – Uncertain Transactions

It is not permitted to sell fish in water before they have been

caught, or birds in the air.

It is not permitted to sell a foetus in the womb, the issue of this

foetus, wool on the back of the sheep or milk in the udder.

It is not permitted to sell one cubit of fabric,322 a beam from a

roof, a single casting [of the net] of the hunter,323 the muzābanah
sale, which is the sale of estimated fruit on the date-palm in
exchange for picked dates.

e sale by way of stone-throwing324 is not permitted, or by

touching (mulāmasah) or throwing (munābadhah).325

208
 Selling one out of two pieces of fabric is not permitted.326

Whoever sells a slave on the condition that the buyer shall set him
free, arrange to set him free on his death [as a mudabbar], or make a
contract with him to purchase his freedom [as a mukātab], or sells a
slave-woman [stipulating that the buyer] shall make her an umm al-
walad, then the sale is invalid. Likewise, if he sells a slave on the
condition that the seller [himself ] will avail of his services for a
month, or [sells] a house on the condition that the seller will reside
there for a known period [of time], or on the condition that the buyer
will lend him a dirham, or on the condition that [the buyer] will give
him a gift, [all such transactions are invalid].

Whoever sells property on the condition that he will not submit it

[to the buyer] until the new month then that sale is invalid.

Whoever sells a [pregnant] slave-woman or a [pregnant] pack-

animal, excluding its foetus, the sale is invalid.

209
 Whoever buys fabric on the condition that the seller shall cut it
and stitch it into a shirt, or [into] an outer garment, or [buys] a
sandal on the condition that [the seller] cuts it out or laces it [for
him], the sale is invalid.

e sale up to the Nayroz (Persian New Year’s Day), the Mahrijān

(Persian Autumn Festival), Lent (the fasting of the Christians) and
Passover (festival of the Jews), when the two parties to the sale do not
know that, are invalid.327

e sale [which is conditional] on the harvesting [of crops], the

threshing [of crops], the picking [of grapes] and the arrival of the ḥajj
pilgrim is not permitted, but if both of them agree to drop the
[conditional] time limit before the people begin harvesting and
threshing [the crops], and before the arrival of the ḥajj pilgrim, the
sale is permitted.

In the invalid sale, when the buyer takes hold of the object of sale
with the permission of the seller, and there are two considerations in
the contract both of which are property (māl), he gains ownership of
the object of sale and its payment is binding upon him and each of

210
the contracting parties has the right to rescind it. If the buyer sells it
[on], his sale is executed.

Whoever combines a freeman and a slave [in one transaction], or

a slaughtered goat and a dead [goat], the sale is void in both of them,
but whoever combines a slave and a mudabbar, or his [own] slave and
the slave of someone else, the sale of the slave is valid according to his
share of the price.

On Abhorrent Transactions

e Messenger of Allah forbade us to bid up the price

(najash), bidding (sawm) over another’s bid,329 meeting merchants
328

[before they reach the market] (forestalling), the city-dweller selling

on behalf of the country-dweller (bay‘ al-ḥāḍir li’l-bādī) and selling
during the adhān of Jumu‘ah [prayer].

All of these [sales] are abhorrent but the sale is not rendered
invalid because of them.

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 Whoever acquires ownership of two minor slaves, each of the two
being prohibited for marriage due to consanguinity for the other (dhū
raḥm maḥram), [the owner] should not separate them,330 and
likewise when one of the two is major and the other is minor, if he
separates them, it is disapproved but the sale is permitted, but if both
of them are major, then there is no objection in separating them.

IQĀLAH – NEGOTIATED RESCISSION OF

THE CONTRACT

Negotiated rescission of the sale is permitted, for both the seller

and the buyer, with the same initial price. So, if one stipulates the
condition of more than that [initial price], or less than it, the
condition is void and [the commodity] is returned [to the seller]
according to the initial price,331 and it is a cancellation (faskh) [of the
sale] with respect to the two parties to the contract, [but it is] a new
transaction with respect to someone other than those two, according
to the verdict of Abū Ḥanīfah, may Allah have mercy on him.

212
 e destruction of the payment (thaman) does not prevent the
validity of iqālah,332 but the destruction of the object of sale does
prevent its validity,333 but if [only] a portion of the commodity
perishes, iqālah is allowed in the remainder of it.334

MURĀBAḤAH – PROFIT-BASED SALE –

AND TAWLIYAH – PROFITLESS SALE

Murābaḥah is the transferral of what one gained ownership of in

the initial contract with the initial price, plus the addition of
profit.335

Tawliyah is the transferral of what one gained ownership of in the

first contract with the first price, but without the addition of
profit.336

Murābaḥah and tawliyah are not valid unless the object under
consideration is something that is fungible (mithl).337

213
 It is permitted to add the wages of the fuller, the dyer, the
embroiderer, [the cost of ] the twining, or the cost of the
transportation of food, to the basic cost (ra’s al-māl).338

He says, “It cost me so much,” but does not say, “I bought it for so
much.”339

If the buyer becomes aware of a deception in the murābaḥah, he

has a choice, according to Abū Ḥanīfah, may Allah have mercy on
him: if he wants, he may take it for the total price, or if he wants, he
may return it.340

If he becomes aware of a deception in a tawliyah [transaction], he

may drop [the amount involved in the deception] from the price.341
Abū Yūsuf, may Allah have mercy on him, said that he does not
reduce [the price] in either of them,342 but Muḥammad, may Allah
have mercy on him, said that he does not reduce [the price] in either
[case], but [rather] he has a choice in both [cases].343

214
 Whoever buys something that may be moved and transferred,344
it is not allowed for him to sell it [further] until he has taken
possession of it.

According to Abū Ḥanīfah and Abū Yūsuf, may Allah have mercy
on them, the selling of real estate (‘iqār) is permitted prior to taking
possession, but Muḥammad, may Allah have mercy on him, said that
it is not permitted.

Whoever buys a measured item by measuring, or a weighed item

by weighing, and measures it or weighs it then sells it by measuring
or weighing [it], it is not permitted for the one who buys it from him
to sell it, nor to consume it, until he has repeated the measuring and
the weighing.345

Transacting with the price [the sum to be paid] prior to taking

possession of [the commodity] is permitted.346

It is permitted for the buyer to increase the price for the seller,347
and it is permitted for the seller to give extra as the object of sale to

215
the buyer. It is [also] permitted for him to reduce the price [of the
commodity, for the buyer].

e entitlement is connected to all of that.348,349

Whoever sells with immediate payment, then postpones it for a

known period, it becomes deferred (mu’ajjal).350

[With regards to] every debt (dayn) due, whenever its creditor
postpones it, it becomes deferred (mu’ajjal), except the loan because
its postponement is not valid.351

RIBĀ – USURY

Ribā is ḥarām in every measured or weighed [item] when bartered

[in exchange] for something of its own genus with quantitative
disparity (tafāḍul).352

e underlying cause (‘illah) in it [ribā] is measuring (kayl)

against the [same] genus, or weighing (wazn) against the [same]
genus.353

216
 When the measured [commodity] is bartered [in exchange] for
[another commodity of ] its [respective] genus, or the weighed
[commodity is bartered in exchange] for [another commodity of ] its
[respective] genus, like for like, then the sale is permitted,354 but if
there is a disparity,355 it is not permitted.

e sale of good [quality in exchange] for a bad [quality] in

[potentially] usurious [commodities] is not permitted, but only like
for like.356

When both properties [of the commodity] do not exist, [that is]:
1. e genus, and

2. e factor that is attributed to it [like measure or weight],

quantitative disparity (tafāḍul)357 and delay358 are [both]
allowed,359 but when both of them exist, then quantitative disparity
and delay are prohibited. If, however, one of the two [properties]
exists and the other does not exist, quantitative disparity is allowed
but delay is [still] prohibited.360

217
 Everything for which the Messenger of Allah stipulated the
unlawfulness of quantitative disparity with regards to measurement is
always measured, though the people abandon measuring it, for
example, wheat, barley, dates and salt, and everything for which the
Messenger of Allah stipulated the unlawfulness of quantitative
disparity with regards to weight is always weighed, though the people
abandon weighing it, for example, gold and silver, and whatever he
did not stipulate, that depends on the customs of the people.361

e contract of exchange (ṣarf ) that takes place in the genus of

prices (athmān) [like gold and silver], is determined by the taking
possession of both parts to be exchanged in the same session
(majlis).362 Whatever else [there may be] other than that, in which
there may be ribā [like that which is measured or weighed] what is
considered is the specification but their taking possession from each
other is not considered.363

218
 e sale of wheat for [the exchange of ] flour is not allowed, nor
for barley-mush, and likewise, [the sale of ] flour for barley-mush [is
not permitted].

e sale of meat [in exchange] for an animal is permitted,

according to Abū Ḥanīfah and Abū Yūsuf, may Allah have mercy on
them, but Muḥammad, may Allah have mercy on him, said that it is
not permitted, unless there is more meat than there is on the animal,
so the meat is equivalent to its like [in the weight of the animal] and
the extra [meat is] for the leftovers [such as bones, skin, etc.].

e sale of fresh dates [in exchange] for dried dates, like for like,
is permitted, according to Abū Ḥanīfah, may Allah have mercy on
him, as is [the sale of ] grapes for raisins.

e sale of olives [in exchange] for [olive] oil is not permitted, nor
sesame for sesame oil, unless the [olive] oil and the sesame oil are

219
more than what [oil there] is in the olive and the sesame so the oil
will be equivalent to [the oil] and the extra [will be in exchange] for
the dregs.

e sale of two different meats,364 one of them [in exchange] for

another, in quantitative disparity, is permitted, and likewise, the milk
of camels, cows, goats and sheep, one for the other, in quantitative
disparity [is permissible].

[e sale of ] the vinegar of dates [in exchange] for the vinegar of
grapes, in quantitative disparity [is permissible]. e sale of bread for
wheat and flour with quantitative disparity is permissible.

ere can be no ribā between a master and his slave,365 nor

between a Muslim and a belligerent (ḥarbī) in dār al-ḥarb (enemy
territory).366

SALAM – ADVANCE PAYMENT

Salam is permitted in [the case of ]:

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 1. Dry-measured,367

2. Weighed,

3. Counted [commodities] that are not irregular such as walnuts

and eggs, and

4. [Commodities] measured by length.368

Salam is not permitted for:

1. Animals,

2. Or for their appendages [such as their feet, skins, bones, etc.],

3. Numbered hides,

4. Bundled firewood,

5. Bundled alfalfa, or

6. For packs of ripe dates.369

Salam is not permitted unless the commodity for which the

advance is to be paid (muslam fīhi) is present from the point of
contract till the point of [the expiry of ] the duration.370

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 Salam is not permitted unless it is delayed,371 and it is not
permitted unless it is for a known period.372

Salam is not permitted:

1. With the measuring instrument of a specific person,

2. By the cubit373 of a specific person,

3. For the food of a specific village, or

4. For the fruit of a specific date-palm tree.374

Salam is not valid, according to Abū Ḥanīfah, may Allah have

mercy on him, except when seven conditions are stated in the
contract:
1. Known genus,375

2. Known category,376

3. Known description,377

4. Known amount,

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 5. Known duration,

6. Knowledge of the amount of capital (ra’s al-māl), when that

which the contract applies to, like the measured, weighed or
counted [commodities], is according to that amount,

7. e designation of the location wherein he will [deliver] it,

when transport and supply are due from him.378

Abū Yūsuf and Muḥammad, may Allah have mercy on them, said
that one need not mention the capital [amount] when it is [already]
specified, nor the location [where the goods] are to be surrendered,
and he submits it in the place of the contract.

Salam is not valid unless [the seller] takes possession of the capital
before he separates from [the purchaser].

Transacting with the capital and the commodity for which the
advance is to be paid (muslam fīhi) is not permitted prior to taking
possession of it, nor is [any form of ] partnership or tawliyah
(profitless sale) permitted in the commodity for which the advance is
to be paid (muslam fīhi) prior to taking possession of it.

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 Salam in clothes is valid when one mentions the length, the
breadth and the thickness, but it is not allowed in gems or in beads.

ere is no objection to [the validity of ] salam in unfired bricks

and fired bricks when a known brick-mould is specified.

e Conditions for the Validity of Salam

Salam is permitted in everything which it is possible to describe

or know the measure of accurately, and anything which it is not
possible to describe or know the measure of accurately, salam is not
permitted in it.

e sale of a dog, cheetah or predator is permitted, but the sale of

alcohol and swine is not allowed. e sale of silkworms is not
permitted unless it includes the silk, nor is the sale of bees [allowed]
unless with the hives.

224
 e dhimmīs, in sales, are like the Muslims, except only in [the
sales of ] alcohol and pigs; their contract for alcohol is like the
contract of the Muslim for juice, and their contract for pigs is like the
contract of the Muslim for sheep and goats.379

ṢARF – CURRENCY
TRANSACTIONS/EXCHANGE

Ṣarf is that transaction when each of the two things to be

exchanged are from the genus of [commodities used as] prices.380

If someone sells silver [in exchange] for silver, or gold for gold, it
is not permitted unless it is like for like, even if they differ in quality
and form.381

Taking possession of both considerations prior to the separation

[of the parties] is necessary.382

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 When one sells gold [in exchange] for silver, quantitative disparity
is permitted383 and taking possession from each other is obligatory. If
they separate during the transaction of ṣarf before taking possession
of both things to be exchanged, or of either one of the two, the
contract is void.384

Transacting with the price of the ṣarf prior to taking possession of

it is not allowed.385

Trading gold for silver [based] on conjecture [as to the weights] is

permitted.386

Whoever sells an ornamented sword for one hundred dirhams,

when its ornaments387 [alone] are [worth] fifty dirhams, and [the
buyer] pays fifty dirhams of its price, the sale is permitted. e
[payment that is] taken shall be for the share of the silver, even
though he does not explain that, and likewise, if one says, “Take
these fifty [dirhams] from the price of the two of them [the sword
and the ornaments].” If both of them do not take possession before
they separate, the contract [regarding] the ornaments388 is void.

226
 If [the ornaments] can be removed without damage, the sale of
the sword is valid but it is invalid in respect of the ornaments.389

Whoever sells a pot [made] of silver, then the two [parties]

separate and [the seller] has taken a portion of its price, the contract
is invalid in whatever he has not taken possession of but valid in
whatever he has taken possession of, and the pot is shared between
them [according to their respective shares of ownership].

If a portion of the pot was the entitlement [of someone else],

[then] the buyer has the choice:
1. If he wants, he may take the rest for its share of the price, or

2. If he wants, he may return it [all].

Whoever sells a piece of silver when a portion of it was the

entitlement of someone [else], he takes the remainder of its share [of
the price from the seller] and he has no choice in it.

227
 Whoever sells two dirhams and one dinar [in exchange] for two
dinars and one dirham, the sale is permitted; each of the two [types
of ] genus is regarded as a substitute for the other type.

Whoever sells eleven dirhams for ten dirhams and one dinar, the
transaction is permitted; the ten [dirhams] are equivalent [to the first
ten] and the dinar is [regarded as being in exchange] for the
[eleventh] dirham.

e sale of two sound dirhams and one unsound dirham for one
sound dirham and two unsound dirhams is permitted.

If silver is predominant in the dirhams, they are [reckoned]

according to the ruling of silver, and if gold is predominant in the
dinars, then they are [reckoned] according to the ruling of gold.

Whatever is taken account of in [the case of ] perfect [coins] with

regards to the unlawfulness of quantitative disparity is [also] taken
into account in these two (i.e. coins which are either predominantly
gold or silver).390

228
 If adulteration is predominant in both of them, then neither is
under the ruling of dirhams or dinars; they are both under the ruling
of goods.

us, if they are sold [in exchange] for their genus with
quantitative disparity, the transaction is permitted. If one buys goods
with them, and thereafter they become unmarketable (i.e. out of use)
and people have abandoned trading with them before [the other
party] taking possession [of them], the sale is void according to Abū
Ḥanīfah, may Allah have mercy on him, but Abū Yūsuf, may Allah
have mercy on him, said that its value on the day of the sale is due
from [the buyer].391

Muḥammad, may Allah have mercy on him, said that its value at
the last time people transacted with them is due from him.

Sale is permitted with copper coins (fulūs)392 which are in ready

demand even if one does not specify it, but if they are not in ready

229
demand, the sale is not permitted with them until one specifies them.

When one sells [something] for copper coins (fulūs), and

thereafter they become not in demand prior to taking possession, the
sale is void according to Abū Ḥanīfah, may Allah have mercy on
him.393

Whoever buys something with half a dirham’s worth of copper

coins, the transaction is permitted and that which has been sold for
half a dirham of copper coins is due from him.394

Whoever gives one dirham to the money-changer (ṣayrafī) and

says, “Give me copper coins for a half of it, and for [the other] half of
it, a half [dirham] minus a little amount,”395 the transaction is invalid
in all of it, according to Abū Ḥanīfah, may Allah have mercy on him,
but Abū Yūsuf and Muḥammad, may Allah have mercy on them, said
that the transaction is valid in the copper coins and invalid in the
rest.396 If he says, “Give me half a dirham in copper coins and a half
[dirham] less a little amount,” the transaction is permitted.

230
 If he says, “Give me a small dirham whose weight is half a dirham
less a small amount, and the remainder as copper coins,” the
transaction is permitted; the half [dirham] less a small amount is in
payment for the small dirham and the rest in payment for the copper
coins.

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 RAHN – PAWNING

e [contract of ] pawning (rahn)397 is concluded by offer and

acceptance,398 and it is complete by taking possession.399

When the pledgee (murtahin) takes possession of the collateral,

which is distinct, absolute and unattached,400 the contract in that is
complete.

So long as [the pledgee] does not take possession, the pledgor

(rāhin) has a choice:
1. If he wants, he may surrender it to [the pledgee], or

2. If he wants, he may walk away from the [contract of ]

pawning.

When [the pledgor] surrenders [the collateral (marhūn)] to [the

pledgee] and he takes possession of it, it enters into the responsibility

232
(ḍamān) of [the pledgee].401

Pawning is not valid except [in exchange] for a guaranteed

debt,402 and it is guaranteed for less than its value403 and [less] than
the [amount of ] the debt.

If the collateral perishes [whilst] in the possession of the pledgee,

and its value and the debt were equal, the pledgee becomes, ipso
facto, someone who has fulfilled his debt [that was due for it].404 If
the value of the collateral was more than the debt, then the excess is a
trust.405 If, however, the value of the collateral was less than that [of
the debt], then its equivalent [value] lapses from the debt and the
pledgee recovers [only] the excess [from the pledgor].

Pawning common property (mushā‘) is not permitted, nor is

pawning fruit on the date-palms without [the inclusion of ] the date-
palms nor crops in the field without [the inclusion of ] the field, and
pawning date-palms and land is not permitted without them [the
fruit or crops].

233
 It is not valid to pawn things held in trust (amānah), such as
deposits (wadī‘ah), borrowed items (‘āriyah), property that is involved
in a profit-and-loss sharing deal (muḍārabah) and property belonging
to a partnership (māl al-sharikah).

Pledge is valid with the capital of salam property, [with] the

payment of ṣarf and [with] the commodity for which the advance is
to be paid (muslam fīhi). If it perishes in the session of the contract
[after the pledgee has taken possession of it], the [transaction] of ṣarf
and salam will be [deemed to have been] completed, and the pledgee
becomes someone who has, legally, collected his right.

When they mutually agree to place the pledge in the possession of

a just person, it is permitted, and neither the pledgee, nor the pledgor
can take it from him. If it perishes in his possession, it is [deemed to
have] perished at the liability of the pledgee.

It is permitted to pledge dirhams, dinars and measured and

weighed [items].

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 If one pledges [something for something] of its genus406 and it
perishes, its equivalent is [deemed] to have perished from [the total
value] of the debt, even though they may differ in quality and
workmanship.

Whoever is owed a debt by another person and takes from him

the equivalent of his debt and spends it, then comes to know that it
was counterfeit, according to Abū Ḥanīfah, may Allah have mercy on
him, there is nothing for him.408 Abū Yūsuf and Muḥammad, may
Allah have mercy on them, however, said that [the creditor] is to
return the same as the counterfeit [currency] and resort [to the debtor
for] the genuine [currency].

Whoever pawns two slaves for one thousand, then discharges the
share of one of the two, it is not [permitted] for him to take
possession of [that slave] until he has settled the remainder of the
debt.409

235
 When the pledgor authorises the pledgee, a just person, or
someone other than those two [as an agent] to sell the collateral
when [payment of the] debt falls due, such agency (wakālah) is
permitted.

If the agency is stipulated as a condition in the contract of

pawning, the pledgor has no right to remove him410 from it. If he
removes him, he is not [legally] removed,411 and if the pledgor dies,
he will not be removed [then] either.

e pledgee may demand his debt from the pledgor, and he may
[even] have him detained for it.412

If the pawned item is in the possession of [the pledgee], he does

not have to allow [the pledgor] to sell it until [the pledgee] has taken
the debt from its price, and when [the pledgor] has settled the debt,
it is said to [the pledgee], “Surrender the collateral to him.”413

If the pledgor sells the collateral without the permission of the

pledgee, the sale is suspended:
1. If the pledgee allows it [to go ahead], it is permitted, or

236
 2. If the pledgor pays off his debt, it is [also] permitted.

If the pledgor sets free the slave given as collateral without the
permission of the pledgee, his being set free is expedited.414 If the
pledgor is comfortably well off and the debt is due, he is asked to
settle the debt. If it is due at a later date (mu’ajjal), the value of a slave
is taken from [the pledgor] and it is pledged in place of [the freed
slave] until the debt is settled. But if the pledgor is poor, the slave is
set to work to settle his [own] value and, thereby, pay off the debt.
en the slave recovers it from the master.415

Likewise, if the pledgor uses up [or destroys] the collateral [the

preceding case applies]. If a stranger uses up [or destroys the
collateral], the pledgee is the claimant in being compensated;416 he
takes the value and the value becomes the collateral in his possession.

e offence of the pledgor against the collateral shall be [duly]

compensated.417

237
 e offence of the pledgee against [the collateral] reduces the debt
in proportion to [the offence].418
e offence of the collateral against the pledgor, or against the
pledgee, and against their property is disregarded.419

e charges for the house in which the collateral is kept are due
from the pledgee, but the wages of the guard are due from the
pledgor and the expenditure for the security of the collateral is [also]
due from the pledgor, and its increase420 belongs to the pledgor, and
so the growth is [also] collateral along with the original.421

If the increase perishes, it perishes without anything.422 If the

original perishes but the increase remains, the pledgor redeems it
according to its share, and the debt will be divided over:
1. e value of the debt on the day it was taken possession of,
and

2. e value of the increase on the day of its redemption.423

238
 So, whatever misfortune happens to the original, it drops from
the debt in proportion to it, and whatever misfortune happens to the
increase, the pledgor redeems it.

It is permitted to increase the pledge, but it is not permitted to

increase the debt, according to Abū Ḥanīfah and Muḥammad, may
Allah have mercy on them. e pledge does not become a pledge
with the two of them,424 but Abū Yūsuf, may Allah have mercy on
him, said that it is permitted [to increase both the pledge as well as
the debt].

When someone pledges one item (‘ayn) with two men for a debt
with each one of the two, it is permitted, and the whole of it is a
pledge with each of the two. What is guaranteed to each of the two is
the portion of his debt from it. If [the pledgor] fulfils the debt of
either of the two, the whole of [the item] becomes a pledge in the
possession of the other until [the pledgor] settles his debt [with that
other pledgee].

239
 Whoever sells a slave on the condition that the buyer will furnish
a pledge with him of something specific in lieu of the price, and the
buyer refuses to surrender the collateral [to him], [the buyer] is not
compelled to do that, and the seller has a choice:
1. If he wants, he may accept the abandonment of the pledge,
or

2. If he wants, he may rescind the sale, unless the buyer pays the
price immediately or pays the value of the collateral, which
becomes collateral.

e pledgee may protect the collateral by himself, his wife, his

children425 and his servant who [resides] in his household. If he
protects it with anyone other than someone who is in his household,
or he deposits it [with someone else], he is liable for it [himself ].

240
 When the pledgee violates the [rights due to the] collateral, he is
liable for it [with the same liability as] the compensation due for
expropriation (ghaṣb), [according to] its complete value.
When the pledgee lends the collateral [back] to the pledgor and
he takes possession of it, it leaves the responsibility of the pledgee.426
en, if it perishes [whilst] in the possession of the pledgor, it
perishes without anything.427 e pledgee may retrieve it into his
[own] possession, and when he takes it, the responsibility returns to
him.
When the pledgor dies, his executor (waṣī) sells the collateral and
settles the debt. But if he has no executor, the judge appoints an
executor for him and orders him to sell it.

241
 ḤAJR – LIMITATION ON SOMEONE’S
LEGAL COMPETENCE

ere are three factors that require limitation on someone’s legal

competence (ḥajr):
1. Minority,

2. Slavery, and

3. Insanity.

Minors may not dispose (taṣarruf) [of their property] except with
the leave of their guardian (walī), and slaves may not dispose [of their
property] except with the leave of their master. e insane, whose
intellects are overwhelmed [with insanity], may not dispose [of their
property] under any circumstances.

Of these [three categories of people], whoever sells something or

buys it, and understands the transaction and intends it, the guardian
has the choice:

242
 1. If he wants, he may permit it, if there is any benefit in it, or

2. If he wants, he may rescind it.

ese three factors compel limitation on someone’s legal

competence in verbal [transactions] rather than practical actions.

With regards to the minor and the insane, their contracts are not
valid nor are their acknowledgements, and their declarations of
divorce do not transpire nor their freeing [of slaves]. If, however, they
wreck something, its compensation is binding upon them.

With regards to the slave, his statements are enforceable with

respect to himself, [but] not enforceable with respect to his master. If
he approves [the transaction of ] property, it is not binding upon him
immediately, but it will be binding upon him after [his] being freed.
If he confesses to [having committed an act necessitating] a ḥadd
[punishment] or retaliatory punishments (qiṣāṣ) (retaliation), it is
binding upon him immediately. His declaring divorce takes effect,
but if his master declares that the slave’s wife is divorced it does not
take effect.

On Fools

243
 Abū Ḥanīfah, may Allah have mercy on him, said that there is no
limitation on the legal competence of a fool (safīh) when he is sane,
major and free. His transacting with his [own] property is permitted,
even if he is a squanderer, corrupter, destroying his [own] property in
ways in which there is no purpose or benefit for him, for example, he
wrecks it in the sea or burns it in fire.428

Except that he [Abū Ḥanīfah, may Allah have mercy on him]

said, when a minor attains majority in the state of being irrational,
his property is not to be surrendered to him until he reaches twenty-
five years [of age].

If, however, he transacts with it prior to that, his transaction takes

effect, and when he reaches twenty-five years [of age], his property is
surrendered to him, though rationality may [still] not be observed in
him.

244
 Abū Yūsuf and Muḥammad, may Allah have mercy on them, said
that limitation of legal competence is [imposed] on the fool and he is
deterred from transacting with his property. If he sells [anything], his
sale regarding his property is not implemented, but if there is benefit
in it [for him], the ruler (ḥākim) should permit it.

If he sets a slave free, his setting [that slave] free takes effect, and
it is [incumbent] on the slave to work [and pay off ] for his [own]
value.429 If he marries a woman, his marriage is valid, and if he
names a dowry, of it the [equivalent of the reasonable amount of ]
dowry that a woman of her status [is accustomed to] is permitted,
and the excess is invalid.

e two of them,430 may Allah have mercy on them, said

regarding someone who attains majority in the state of being
irrational, his property should never be given to him until rationality
is observed in him, and his transacting with it is not allowed [either].

245
 Zakāh is discharged from the property of the fool, and it is spent
on his children and his wife, and upon whomsoever of the uterine
relatives (dhawū’l-arḥām) it is obligatory upon him [to maintain].431

If he intends to perform the ḥajj of Islam, he should not be

prevented from that. e judge does not surrender the expenditure to
him, but he surrenders it to a reliable person from the ḥājjīs, who
spends it on him on the journey of the ḥajj.

If he falls ill and makes bequests for [acts of seeking] closeness [to
Allah], and for the categories of goodness, it is permitted from one-
third of his property.432

Puberty

e reaching puberty of a boy is by way of nocturnal emission (i.e.

a wet dream), ejaculation, or by his causing pregnancy when he has
sexual intercourse.

246
 If [any of ] that is not found, then [he is a minor] until he has
completed eighteen years [of age], according to Abū Ḥanīfah, may
Allah have mercy on him.

e reaching puberty of a girl is by way of menstruation,

nocturnal emission, or pregnancy.

If [none of ] that exists, then [she is a minor] until she has

completed seventeen years [of age].

Abū Yūsuf and Muḥammad, may Allah have mercy on them, said
that when the boy and the girl have completed fifteen years of age
then they have attained puberty.

When a boy or girl approach puberty, and their position

concerning majority is difficult [to ascertain], and they say that they
have attained majority, then their statement [is accepted] and the
judgements [on them] are the judgements on mature people.

On Insolvents

247
 Abū Ḥanīfah, may Allah have mercy on him, said, I do not place a
limitation on the legal competence of an insolvent person (muflis)
due to a debt. When many debts become due on the insolvent, and
his creditors demand he be taken into custody and a limitation placed
on his competence, I do not place a limitation on his legal
competence. If he has some property, the judge (ḥākim) does not
transact with it, but [rather], he takes him into custody indefinitely
until he sells it for [the settlement of ] his debt. If he has dirhams and
his debt consists of dirhams, the judge should settle that without his
authorisation.433 If his debt is dirhams but he has dinars or vice versa,
the judge should sell them for [the settlement of ] his debt.

248
 Abū Yūsuf and Muḥammad, may Allah have mercy on them, said,
when the creditors of the insolvent person demand that a limit be
placed on his legal competence, the judge places a limit on his legal
competence and prevents him from selling, transacting and ratifying
so that creditors are not harmed thereby. If the insolvent refuses to
sell his property, [the judge] sells it, and [the proceeds] are divided
between the creditors according to the [respective] shares. If [the
insolvent] does ratify the ratification of property during the state of
the limitation on his legal competence, that is binding upon him after
the discharge of the debts.434 e insolvent is spent upon from his
[own] property, as [also] are his wife, his small children and uterine
relatives.

If the insolvent has no known property, and his creditors demand

his detention in custody, and he says, “I have no property,” the judge
(ḥākim) should detain him in custody435 for every debt that is
binding on him in exchange for property that is in his possession,436
like the price of things sold and in exchange for a loan, and for every
debt that is binding on him by a contract,437 such as dowry (mahr)438
and surety (kafālah) [bond].

[e judge (ḥākim)] should not detain him for anything other
than that,439 such as in replacement for usurped [goods] and
compensation (arsh) for offences, unless evidence is produced that he
does have property.

249
 e judge should detain him for two or three months [as
required], investigating his circumstances. If property of his is not
discovered, he discharges him, as he does if clear proof is established
that he has no property.

[e judge (ḥākim)] does not intervene between him and between
his creditors after his leaving detention. [His creditors] pursue him
but they do not prevent him from transacting [with his property], or
travelling.440 ey take the surplus of his earnings and divide [it]
amongst themselves according to the [respective] shares [in the
debts].

Abū Yūsuf and Muḥammad, may Allah have mercy on them, said
that when the judge declares someone insolvent, then he intervenes
between him and his creditors,441 unless they produce clear proof
that he has acquired property.

e dissolute person (fāsiq) does not have a limitation placed on

his legal competence if he treats his property in an orderly manner.442

250
 Original dissoluteness and accidental dissoluteness are [treated]
the same.

Whoever becomes insolvent and with him are specific goods

[belonging to] another person who had purchased them from him,
the owner of the goods is just like creditors [with regards] to them.443

251
 IQRĀR – ACKNOWLEDGEMENT

When a free, adult, sane person acknowledges a right [against

himself ], its acknowledgement is binding on him, whether what he
has acknowledged is unknown or known. It is said to him, “Make the
unknown [right] clear.” If he does not make it clear, the judge
(ḥākim) compels him to make [it] clear. If he says, “So-and-so is due
something from me,” it is binding upon him to make clear that
which has a value.444

e [legally acceptable] statement is the statement of the one who

acknowledges (muqirr)445 along with his oath, if the one in whose
favour the acknowledgement is made (muqarr lahū) claims more than
that [amount].

252
 When he says, “He is due some property from me,” then resort is
made to him for its explanation, and his statement is accepted in both
little [amounts] or much. If he says, “He is due a tremendous amount
of property from me,” he is not believed with respect to anything less
than two hundred dirhams.446 If he says, “He is due many dirhams
from me,” he is not believed with respect to anything less than ten
dirhams.447 If he says, “He is due some dirhams from me,” they
should be [understood to be] three, unless he clarifies that there are
more than that [amount]. If he says, “He is due such-and-such [an
amount of ] dirhams from me,” he is not believed with respect to
anything less than eleven dirhams. If he says, “He is due such-and-
such [an amount of ] dirhams,” he is not believed with respect to
anything less than twenty-one dirhams.

If he says, “He is due from me…,” or “…is owed by me…,” then

he has acknowledged a debt. If he says, “I have for him…,” or “…
with me…,” then that is acknowledgement of a trust [left] in his
possession.

If a man says to him, “I am due a thousand [dirhams] from you,”

and [in reply] he says: “Weigh them,” “Inspect them,” “Give me

253
some time for them,” or “I have paid them to you,” then that is an
acknowledgement.

Whoever acknowledges a deferred (mu’ajjal) debt, and the one in

whose favour the acknowledgement is made (muqarr lahū) verifies
the debt but denies the deferment, the debt [settlement] is
immediately binding on him, and the one in whose favour the
acknowledgement is made (muqarr lahū) is administered an oath
regarding the term.

Making an Exception to an Acknowledgement

Whoever acknowledges a debt and makes an exception of

something connecting [it] to his acknowledgement, the exception is
valid and the remainder is binding upon him,448 and it is [deemed]
the same whether he makes an exception of a little449 or a lot,450 but
if he makes an exception of all of it, the acknowledgement is binding
upon him and the exception is void.451

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 If someone says, “He is due one hundred dirhams from me except
for one dinar,” or “… except for one qafīz of wheat,” one hundred
dirhams less the value of one dinar or [less] the [value of one] qafīz is
binding upon him. If he says, “He is due a hundred,452 and one
dirham from me,” then the hundred must all be dirhams. If he says,
“He is due one hundred,453 plus one garment from me,” the garment
is binding upon him, and resort is made to him for the explanation of
the one hundred.454

Whoever acknowledges a right [against himself ] and says, “in shā

Allāhu ta‘ālā (Allah willing)” together with his acknowledgement, the
acknowledgement is not binding upon him.

Whoever makes an acknowledgement and stipulates a condition

of option (khiyār), the acknowledgement is binding but the option is
void.455

Whoever acknowledges a house [for someone] and excludes its

structure for himself, then the house and the structure are the
ownership of the one in whose favour the acknowledgement is made
(muqarr lahū),456 but if he says, “e structure of this house is for me
and the courtyard is for so-and-so,” it is as he says.457

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 Whoever acknowledges dates in a basket, the dates and the basket
are [both] binding upon him.458

Whoever acknowledges a [riding] animal in a stable, only the

[riding] animal [not the stable] is binding upon him. If he says, “I
have expropriated a cloth in a kerchief,” then both of them, are
binding upon him. If he says, “He is due from me a cloth inside a
cloth,” both of them are binding upon him. If he says, “He is due
from me a cloth inside ten cloths,” [then] nothing is binding upon
him other than the one cloth, according to Abū Yūsuf, may Allah
have mercy on him, but Muḥammad, may Allah have mercy on him,
said that [all] eleven cloths are binding upon him.

Whoever acknowledges the expropriating of a garment and brings

a blemished garment, then his statement together with his oath is the
statement [that is believed] regarding that, and likewise, if he
acknowledges [some] dirhams and says that they are defective [his
statement with his oath is accepted]. If he says, “He is due five in five

256
from me,” and by that he intends multiplication and sum, [then] only
one five is binding upon him, but if he says, “…I intended five with
five,” then ten is binding upon him.

When he says, “He is due from me from one to ten dirhams,”

[then] nine dirhams are binding upon him, according to Abū
Ḥanīfah, may Allah have mercy on him; the beginning and whatever
is after that are binding upon him, and the limits are dropped.459 e
two of them,460 may Allah have mercy on them, however, said that
all ten [dirhams] are binding upon him.

If he says, “He is due from me a thousand dirhams for the price of

a slave whom I bought from him but did not take possession of,”
then if he mentions a specific slave, it is said to the one in whose
favour the acknowledgement is made (muqarr lahū), “If you want,
hand over the slave and take the thousand, and if not, then there you
have nothing against him.”

If he says, “He is due from me a thousand for the price of a slave”

and does not specify [the slave], the thousand are binding upon him,
according to Abū Ḥanīfah, may Allah have mercy on him.

257
 If he says, “I owe a thousand dirhams for the price of wine or
pigs,” the thousand are binding upon him and his explanation is not
accepted. If he says, “He is due a thousand for the price of baggage,
and they are counterfeit,” and the one in whose favour the
acknowledgement is made (muqarr lahū) says, “[ey are] genuine,”
[then] according to the verdict of Abū Ḥanīfah, may Allah have
mercy on him, genuine [dirhams] are binding upon him. Abū Yūsuf
and Muḥammad, may Allah have mercy on them, said that if [the
one in whose favour the acknowledgement is made (muqarr lahū)]
says that in connection with [the statement of the person who
acknowledges [the debt], then] that is believed, but if he says that
disconnected, [then] it is not believed.

Whoever acknowledges a ring belonging to someone else, then he

has the annulet and [also] the stone.461 If he acknowledges a sword
of his, then he has the blade, [the hilt,] the belt and the scabbard. If
he acknowledges a sedan of his, then he has the wood and the
covering.

258
 If he says, “e foetus of such-and-such a woman is due a
thousand dirhams from me,” then if he said, “… so-and-so had
bequeathed it to him,” or “… its father died and it inherits him,”
then the acknowledgement is valid. If he makes the
acknowledgement vague, it is not valid, according to Abū Yūsuf, may
Allah have mercy on him, but Muḥammad, may Allah have mercy on
him, said that it is valid.

If he acknowledges the foetus of a slave woman or the foetus of a

sheep or goat belonging to a man, [then] the acknowledgement is
valid and it is binding upon him.

Confession on Deathbed

When a person acknowledges during his final illness (maraḍ al-

mawt)462 some debts, and he owes debts [accumulated] during his
good health as well as debts that became binding upon him during
his illness due to known factors, then the debts [incurred] in good
health and the debt of which the factors are known are given
priority.463 us, when they have been discharged and something is

259
left over from them, it is [spent on] whatever he acknowledged
during his illness.

If he does not owe debts from his [time of ] good health, [then]
his acknowledgement is valid, and the one in whose favour the
acknowledgement is made (muqarr lahū) has more right than the
heirs.

e acknowledgement of an ill person [on his deathbed] on behalf

of his heir is void unless the rest of the heirs affirm it.

Whoever acknowledges in favour of a stranger during his terminal

illness, and then says, “He is my son,” his lineage is established by
that [statement] and the acknowledgement in his favour is void. If,
however, he acknowledges in favour of a female stranger, and then
marries her, his acknowledgement for her is not void.

Whoever divorces his wife thrice464,465 during his terminal illness,

and then acknowledges a debt due to her and dies, then she has the
lesser [amount] of the debt or of her inheritance from him.466

260
 Whoever acknowledges in favour of a boy, the like of whom is
born to someone like him,467 and there is no known lineage for him
[showing] that he is his son, and the boy confirms it, [then] his
lineage from [the one who acknowledges paternity] is established
even though [the person acknowledging paternity] is [terminally] ill.
[Moreover,] he has a share in the inheritance with the [other] heirs.

e acknowledgement of a man regarding parents, wife, child and

master is permitted.468 e acknowledgement of a woman regarding
parents, husband and master is accepted, but her acknowledgement
regarding the child is not accepted unless the husband confirms her
in that [regard], or the midwife testifies to her giving birth [to that
child].

Whoever acknowledges to a lineage from other than [his known]

parents or child – like brother and paternal uncle – his
acknowledgement regarding the lineage is not accepted.469 us, if
he has a known heir, close or distant, then he is more worthy to the

261
inheritance than the one in whose favour the acknowledgement is
made (muqarr lahū),470 but if he has no heir, the one in whose favour
the acknowledgement is made (muqarr lahū) is entitled to his
inheritance.471

If the father of someone dies and he acknowledges a brother, the

lineage of his brother is not proven and he shares [with] him in the
inheritance.

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 IJĀRAH – HIRE/LEASE

Ijārah is a contract [based] on benefits [in return] for a

consideration; it is not valid unless the benefits are known and the
remuneration is [also] known.

Whatever is valid as payment (thaman) in sale (bay‘) is [also] valid

as remuneration in ijārah.

e benefits sometimes become known:

1. By duration, like letting houses for tenancy, or [leasing] lands

263
 for cultivation. us, the contract is valid for a known
duration, whatever the duration;

2. ey sometimes become known by the work and the

appellation, like someone who hires a man to dye fabric, or to
sew fabric, or who hires a beast of burden to carry a known
amount on it to a known location, or to ride on it [for] a
known distance; and

3. ey sometimes become known by specification and

indication, like someone who hires a man to deliver this
[particular] food to a known location.

It is permitted to rent houses and shops for tenancy, even though

someone does not express what he will do in them. He may do
anything [in them] except smithery,472 bleaching and milling.473,474

It is permitted to rent lands for cultivation, and the tenant

(musta’jir) enjoys [the right of ] irrigation and passage, even if he did
not stipulate [it]. e contract is not valid until he specifies what he
will cultivate in it,475 or he says that it is on [the condition] that he
cultivate in it whatever he wants.476

264
 It is permitted to lease a vacant field [in order] to build on it, or to
plant date-palms or trees in it. When the period of the lease expires,
it is binding upon [the tenant] to remove the buildings and the plants
and to hand it over vacant [to the landlord], unless the landlord
chooses to pay him the value of that, stripped,477 and takes
possession of it, or is content with leaving it in its [current] state, so
the buildings will be for this [lessee/ tenant], and the land for this
[lessor/landlord].478

It is permitted to hire animals for riding and for carriage. If one

uses ‘riding’ unqualifiedly, it is permitted for him to mount
whomsoever he wishes on it,479 and likewise, if he hires a garment to
wear and he uses it unqualifiedly.

If [the lessor] says to [the lessee], “…on the condition that so-
and-so will ride it,” or “…so-and-so will wear the garment,” but he
mounts someone other than him, or he makes someone other than

265
him wear [the garment], [the lessee] is liable if the animal dies, or if
the garment is ruined, and likewise, all that which changes by the
disparity of the user.480

With regards to real estate (‘aqār), and that which does not
change due to the disparity of the user, if [the tenant] stipulates the
residence of one specific person he may house another person [there],
and [likewise], if he mentions one type and one amount that he will
load on the animal, for example that he says, “…five qafīzs of wheat,”
then he may load that which is like wheat in inconvenience,481 or
less, like barley and sesame, but he is not [permitted] to load that
which is more difficult than wheat, such as salt, iron and lead.

266
 If [the lessee] hires [the animal] to load cotton upon it, which he
designates, then he has no right to load iron [upon it] of the same
weight.482 If he hires it to ride [on], and he mounts another person
on it behind him, and thus it dies, [the lessee] is liable for half its
value, if the animal was able to bear them both, and the weight will
not be taken into account. If he hires it to load a [specific] quantity of
wheat upon it, and he loads more than that upon it, and thus it dies,
he is liable for whatever was in excess of the [specified] weight. If he
restrains the animal by its reins or hits it and it dies, he is liable [for
compensation], according to Abū Ḥanīfah, may Allah have mercy on
him, but Abū Yūsuf and Muḥammad, may Allah have mercy on
them, said that he is not liable [for anything].

Types of Hired Persons (Ujarā’)

Hired persons (ujarā’) are of two types:

1. An employee [held] in common (ajīr mushtarak),483 and

2. A private employee (ajīr khāṣṣ).484

e Employee [Held] in Common

e employee [held] in common is someone who is not entitled to

remuneration until he has performed the work, like the dyer and the
bleacher, and the goods are a trust in his possession; if they are

267
ruined, he is not liable for anything, according to Abū Ḥanīfah, may
Allah have mercy on him, but they,485 may Allah have mercy on
them, said that he is liable [to compensate] it.

at which is ruined by his work, like the ripping of cloth by his
beating, the tripping of the porter, the rope breaking which the
[animal] hirer (mukārī) ties the burden with, and the boat sinking
due to pulling it, [for all of them, the hireling] is liable except that
someone will not be liable for a human, so someone who drowns
with the boat, or falls from the [riding] animal, then he [the hireling]
is not liable [to pay compensation].

When a phlebotomist performs phlebotomy486 or a surgeon

makes an incision [in an animal] and it does not go beyond the
normal location, [then] neither of the two are liable for what perishes
due to that,487 but if it does go beyond it, [the phlebotomist or the
surgeon] is liable [to pay compensation even though the owner
authorised the surgery].

e Private Hireling

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 e private hireling is someone who is entitled to remuneration
for surrendering his person for a period, even if he does not work, as
when one hires a man for service or for pasturing sheep.

ere is no liability on the private hireling for that which is

destroyed whilst in his possession, nor for that which is destroyed due
to his work,488 unless he violates [normal precautions], in which case
he is liable.489

at which Invalidates Ijārah

e [breach of ] conditions invalidates ijārah just as it invalidates

sales.

Whoever hires a slave for service cannot take him on a journey

unless he stipulates that as a condition in the contract.490

Whoever hires a camel so that he may convey a litter and two

riders upon it to Makkah, it is permitted and he may [only load] a
customary litter [upon it]. It is better for the cameleer to see the
litter.

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 If someone hires a camel so that he may load an amount of
supplies (zād) on it, and eats of them on the way, it is permitted for
him to replenish [the supplies] in place of what he has eaten.491

When Remuneration becomes Due

Remuneration does not become due by virtue of [entering into

the] contract [of ijārah].492

It becomes an entitlement [to the hired person (mūjir)] by one of

three factors, either:
493
1. By the precondition of promptness [of payment],

2. By promptness [of payment] unconditionally, or

494
3. By fulfilment of the contractual obligation.

Whoever rents a house, the lessor may demand remuneration (i.e.

rent) daily, unless he stipulates the time of maturity [of payment] in
the contract.

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 Whoever hires a camel to Makkah,495 the cameleer may demand
the remuneration (i.e. fare) at each stage496 from him.

But the fuller and the tailor may not demand remuneration until
they have completed the work, unless they stipulate the condition of
promptness [of payment].497

Whoever hires a baker to bake for him in the house [of the lessee]
one qafīz of flour, for one dirham, [the baker] is not entitled to
remuneration until he has taken the [cooked] bread out of the
oven.498

Whoever hires a chef to cook food for him at a wedding banquet

(walīmah), the ladling is [also] incumbent upon [that chef ].

Whoever hires a man to make bricks for him [the man] is entitled
to remuneration when he sets them up [after they have dried],
according to] Abū Ḥanīfah, may Allah have mercy on him, but Abū
Yūsuf and Muḥammad, may Allah have mercy on them, said that he

271
is not entitled to it until he has stacked them [after they have been
baked].

When someone says to the tailor, “If you sew this cloth according
to Persian fashion, then it is for one dirham, but if you sew it
according to Roman fashion, then it is for two dirhams,” it is
permitted, and whichever of the two jobs he undertakes, he is
entitled to remuneration [accordingly].

If someone says [to the tailor], “If you sew it today it is for a
dirham, but if you sew it tomorrow then it is for half a dirham,” then
if he stitches it today, then he has one dirham, and if he stitches it
tomorrow, then he has its customarily reasonable amount (mithl) [in
remuneration],499 according to Abū Ḥanīfah, may Allah have mercy
on him, and it should not exceed half a dirham,500 but Abū Yūsuf
and Muḥammad, may Allah have mercy on them, said that both
conditions are permitted, and whichever of the two he undertakes, he
is entitled to the remuneration.

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 If someone says [to a tenant], “If you house a perfumer in this
shop, it is for one dirham per month, but if you house a blacksmith,
then it is for two dirhams,” it is permitted.

Whichever of the two undertakings he performs, he is entitled to

[the remuneration] mentioned in it, according to Abū Ḥanīfah, may
Allah have mercy on him. ey,501 may Allah have mercy on them,
said that the [contract of ] ijārah is invalid.

If someone rents a house every month for a dirham, the contract

is valid for one month [only] and invalid for the rest of the months,
unless [the tenant] mentions all of the determined months,502 and
thus, if he resides [there even for] an hour from the second month,
the contract is valid in it, and [the rent] is binding upon him, and the
landlord is not able to evict him until the rented month elapses.
Likewise, [for] the ruling of every month, in the beginning of which
he resides a day or [even] an hour.

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 If he rents a house on a monthly basis for a dirham and resides
there for two months, the rent of the first month is due from him but
there is nothing due from him for the second month.503

If someone rents a house for a year for ten dirhams, it is valid,

even if he does not mention the instalment of rent for each month.

It is permitted to take remuneration for [use of ] the public bath

and [the services of ] the cupper (ḥajjām).

Taking payment for conjoining a [male with a female] goat is not

allowed.

It is not permitted to hire [someone] for [calling] the adhān, for

[saying] the iqāmah, for teaching the Qur’ān and the ḥajj, and
neither is it allowed to hire [someone] for singing or for mourning.

According to Abū Ḥanīfah, may Allah have mercy on him, the

letting of shared property is not allowed,504 but they,505 may Allah
have mercy on them, said that the letting of shared property is
permitted.

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 e hiring of a wet nurse (ẓi’r) is permitted for specified payment,
and it is permitted in exchange for feeding her and clothing her,
according to Abū Ḥanīfah, may Allah have mercy on him.

e hirer should not prevent her husband from having sexual

intercourse with her. If she becomes pregnant, they may rescind the
[contract of ] ijārah when they fear for the child regarding her milk.

She must make the food of the child adequate. If she suckles him
during the period [of her contract] with sheep or goat’s milk,506 then
there is no remuneration for her.

Every artisan, whose work has a [visible] effect on the item, such
as the fuller and the dyer, may retain the item after the completion of
his work [on it] until he receives the remuneration, but whoever’s
work has no [visible] effect on the item, may not retain the item until
[he receives] remuneration, such as the porter and the boatman.

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 When someone places a condition on the artisan that he work on
his own, then [that artisan] may not employ anyone else.507 If he
places no conditions on the work for him, then he may hire someone
who will do it.508

Differences between the Lessor and the Lessee

If the tailor, the dyer and the owner of the fabric differ [on an
issue], and the owner of the fabric says to the tailor, “I told you to
make it into an outer garment (qabā’),” and the tailor says, “…a shirt”
or the owner of the cloth says to the dyer, “I told you to dye it red but
you dyed it yellow,” then the [reliable] statement is the word of the
owner of the fabric along with his oath. If he swears an oath, the
tailor is liable.509

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 If the owner of the fabric says, “You have worked [on] it for me
for no pay,” and the artisan says, “[I worked on it] for pay,” then the
[definitive] statement is the word of the owner of the cloth, along
with his oath, according to Abū Ḥanīfah, may Allah have mercy on
him. But Abū Yūsuf, may Allah have mercy on him, said, “If he is a
fellow artisan of his, then there is pay for him, but if he is not a
fellow artisan of his, then there is no pay for him.” Muḥammad, may
Allah have mercy on him, however, said, “If the artisan is known to
take pay for this [particular] work, then the [definitive] statement is
his word along with his oath, that he worked on it for pay.”

In the invalid lease (ijārah fāsidah), payment of what is the

ordinary rate (mithl )510 is obligatory, which does not exceed what
has been prescribed.511

When the tenant takes possession of the house the rent is due
from him, even though he does not reside in it,512 [but] if a usurper
expropriates it from his possession, the rent lapses.

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 If [the tenant] finds a blemish in it, which is detrimental to
residing [therein], then he has the right to rescind [the lease].

If the house becomes ruined, irrigation to the land ceases, or the

water to the water-mill discontinues, the lease (ijārah) is rescinded.513

When either of the two parties to the contract dies, and he had
entered into the lease (ijārah) contract for himself, the lease (ijārah) is
rescinded. If its contract was for someone other than himself [who is
alive], it is not rescinded.

Stipulating an option (khiyār) in the lease (ijārah) is valid, just as

it is in sale.

A lease (ijārah) is rescinded by [valid] excuses, such as someone

who rents a shop in the market in which to carry on business, then
his merchandise is destroyed,514 and such as someone (i.e. a landlord)
who lets a house or a shop, then becomes bankrupt and debts are due

278
upon him which he is unable to settle except from the price of what
he has let, [in which case] the judge rescinds the contract and sells it
[in order to settle] the debt.515

Whoever hires a [riding] animal to travel upon, then it occurs to

him to [postpone] the journey, then that is a [valid] excuse,516 but if
it occurs to the one who lets [the animal as a mount, to postpone] the
journey, then that is not a [valid] excuse.517

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 SHUF‘AH – PREEMPTION

Preemption (shuf‘ah) is a right518 of:

1. e associate (khalīṭ)519 in the object of sale, then of,

2. e associate in the right of the object of sale, such as [the

right of ] irrigation and passage,520 [and] then of,

3. e neighbour.521

In the [presence of the] associate, there is no [right of ]

preemption for the partner (sharīk) in passage and irrigation, nor for
the neighbour.522

If the associate gives up [his right], then the preemption belongs

to the partner in passage, and if he [also] gives up [this right], then
the neighbour may take it.

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 Preemption is concluded with a contract of sale, and it is settled
by making witnesses.

[e preemptor (shafī‘)] becomes the owner by acquiring it when

the buyer surrenders it to him, or [when] a judge (ḥākim) gives that
as a judgement. When the preemptor comes to know of the sale, he
should call witnesses within that [very] session of it, regarding the
demand [of his right].523 en he should depart from there and call
witnesses against the seller, if the sold commodity is in his possession,
or against the purchaser, or at the real estate.524 Once he has done
that, his preemption is concluded, and it does not lapse by [any
delay],525 according to Abū Ḥanīfah, may Allah have mercy on him.
Muḥammad, may Allah have mercy on him, however, said that after
making witnesses, if he leaves it without any excuse for a month, his
[right of ] preemption is void.

ere is a right of preemption in real estate even if it is indivisible,

like a hot [public] bath, a quern, a well and small houses.

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 ere is no [right of ] preemption in a building nor in date-
palms526 when sold without the courtyard, and there is no [right of ]
preemption in goods and boats.

e Muslim and the dhimmī are equal in [the rights of ]

preemption.

When one gains ownership of real estate for a consideration

which is wealth, there is a right of preemption in it.527

ere is no [right of ] preemption in the house:

528
1. On the basis of which a man performs marriage,

2. By which a woman gains divorce at her own instance

(khul‘),529
530
3. For which one rents [another] house,

4. [By which] one conciliates in intentional killing (qatl

‘amd),531
532
5. By which one sets free a slave,

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 6. Regarding which one conciliates by a negation or silence.533
If he conciliates with an acknowledgement or confession,534
[then] preemption is incumbent in it.

Procedure of a Lawsuit

When the preemptor approaches the judge, files a lawsuit against

the purchase and claims preemption, the judge shall question the
defendant regarding that. If [the defendant] confesses to the
ownership of that which is the subject-matter of the preemption [it is
established], otherwise, he shall instruct [the plaintiff ] to produce
evidence.

us, if [the plaintiff ] is unable to [provide] evidence, [the judge]

demands an oath from the purchaser, by Allah, that he has no
knowledge that he [himself ] is the owner of that which [the
plaintiff ] has mentioned, and for which he claims preemption. If he
refrains from [taking] the oath, or [if ] evidence is established for the
preemptor, the judge asks him whether he had purchased [it] or not;
if he denies the purchase, [then] it is said to the preemptor, “Produce
evidence.”

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 If [the plaintiff ] is unable to do that (i.e. produce evidence), he
[the judge] demands an oath from the purchaser that by Allah, he
has not purchased [it], or that by Allah, he [the preemptor] is not
entitled to preemption in this house from the aspect that he
mentions.

It is permitted to raise the dispute in preemption [with the judge],

even if the preemptor does not present the payment in the session of
the judge. When the judge has decided the preemption in his
favour,535 then production of the payment is binding upon him.

e preemptor may return the house because of a stipulated

option [that he can do so if there is a] blemish or because of
examination.536

When the preemptor presents the seller [in front of the judge],
and the object of sale is in his possession, then [the preemptor] may
raise the dispute in the preemption against him. e judge does not
listen to the evidence until the buyer attends. us, he revokes the

284
sale [only] in his [the buyer’s] presence. He decides the preemption
[case] against the seller and places the care of it with him.537

When the preemptor, though able to summon witnesses, refrains

from it at the time when he acquired knowledge of the sale, his [right
of ] preemption is void, as it is when he summons witnesses within
the session but does not produce witnesses against either of the
contracting parties nor [at] the real estate.538

If he concedes his [right of ] preemption for a consideration which

he takes, his [right of ] preemption is void, and he must return the
consideration.539

When the preemptor dies, his [right of ] preemption is void.540

When the buyer dies, the [right of ] preemption does not lapse.541

When the preemptor sells whatever he is claiming in the

preemption before the preemption is decided for him, his [right of ]
preemption is void.

285
 If the agent of the seller sells [it] and he is [also] the preemptor,
he has no [right of ] preemption, as is the case if the preemptor takes
responsibility of the commodity on behalf of the seller.542 However, if
the agent of the buyer purchases [the property] and he is [also] the
preemptor, he may claim preemption.

Whoever sells, with a condition stipulated then the preemptor has

no [right of ] preemption, but if the seller drops the option [to
withdraw], the preemption is an established right.543

If someone buys stipulating an option [to withdraw], [then] the

preemption is an established right.

Whoever purchases a house in an invalid purchase, there is no

preemption in it.544

Either of the two parties to the contract may rescind [the sale]. If
the [right of ] rescission lapses, preemption may take place.

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 When a dhimmī buys a house [in exchange] for wine or pigs, and
its preemptor is [also] a dhimmī, he may take it for the same wine
and the price of the pigs. If its preemptor is a Muslim, [then] he may
take it for the price of the wine and [of ] the pigs.

ere is no [right of ] preemption in gifts, unless they are [given]

for a stipulated counter-value.545

When the preemptor and the buyer differ with regards to the
price [of the real estate], then the [decisive] statement is the word of
the purchaser, but if both of them produce evidence, then the
[decisive] evidence is the evidence of the preemptor, according to
Abū Ḥanīfah and Muḥammad, may Allah have mercy on them. Abū
Yūsuf, may Allah have mercy on him, however, said that the
[decisive] evidence is the evidence of the purchaser.

When the buyer claims a price that is higher, and the seller claims
less than that and has not [yet] taken the payment, the preemptor

287
may take it [according] to what the seller stated, and that is a
reduction [of price] from [the claim of ] the buyer.

If [the seller] has taken [the payment, then the preemptor] takes
it [according] to what the buyer has stated, and the statement of the
seller is not heeded.

When the seller reduces some of the price for the buyer, it [also]
drops for the preemptor,546 but if he drops the price completely, it
does not drop for the preemptor.547

When the buyer increases the price for the seller, the excess is not
binding on the preemptor.548

When many preemptors come together, then the preemption is

[divided] between them according to the number of their heads
[persons], and the difference [in the amounts] of the ownerships is
not taken into account.549

288
 Whoever buys a house [in exchange] for a non-fungible
commodity, the preemptor takes it [the house] for [the commodity’s]
value.550 If he bought it [in exchange] for a measured or weighed
[item], [the preemptor] takes it for the same.

If one sells real estate [in exchange] for real estate, the preemptor
may take each one of the two for the value of the other.551

When it reaches the preemptor that it was sold for a thousand and
so he relinquishes the [right of ] preemption, and later comes to know
that it was sold for less than that [amount], or [it was sold] for wheat
or barley the price of which was a thousand or more, then his
relinquishment is void and he [still] has [the right of ] preemption.552

If it becomes clear that it was sold for dinars the value of which is
a thousand, then he has no [right of ] preemption.553

If it is said to him that “the buyer is so-and-so” and he

relinquishes [his right of ] preemption, then later comes to know that
[the buyer] is someone else, then he has [the right of ] preemption.

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 Whoever buys a house for someone else, [then] he [himself ] is
the litigant in [the lawsuit of ] preemption, unless he surrenders it to
the client.

When someone sells a house except for the measure of a cubit

from the boundary which adjoins the preemptor, he has no [right of ]
preemption.554 If he purchases a part of it for a [particular] price, and
later purchases the rest of it, the neighbour’s [right of ] preemption is
in the first part, [and] not [in] the second.555

When one purchases it for [cash] payment then he pays him [in]
cloth as consideration for it, then the preemption is for the [cash]
payment, not for the cloth.

[Adopting] a stratagem (ḥīlah) in [order to be] rid of the [right

of ] preemption is not disapproved, according to Abū Yūsuf, may
Allah have mercy on him, but Muḥammad, may Allah have mercy on
him, said that it is disapproved.

290
 When the buyer has built or planted [the land], then later the
preemption was decided in favour of the preemptor, he has the
option:
1. If he wants, he may take it for the price and for the value of
the building and the plants stripped away, or
556
2. If he wants, he tasks the buyer with its removal.

When the preemptor takes [the land] and builds [upon it] or
plants [in it], then later it becomes the right of someone else, [the
preemptor] may demand the price [of the land], but he may not
demand the value of the building and the planting.

When the house collapses, or it burns down, or the trees of the

orchard become dry without anyone’s having done it, then the
preemptor has a choice:
1. If he wants, he may take it for the total price, or

2. If he wants, he may leave [it].557

291
 If the buyer tears down the building, it is said to the preemptor,
“If you want, take the open ground558 for its share [of the price], or if
you want, then leave [it],” but he may not take the ruins.

Whoever purchases some land and on its date-palms there is fruit,

the preemptor may take it with [all] the fruit, but if the buyer has
picked it, its portion [of the price] lapses for the preemptor.559

When judgement has been given that the house belongs to the
preemptor and if he had not seen it, he has the option of examination
(khiyār ar-ru’yah), and if he discovers a blemish in it, then he may
return it because of [that blemish] even if the buyer had made a
condition of not being responsible for it.560

If someone purchases with [the condition of ] deferred payment,

the preemptor has a choice:
1. If he wants, he may take it with immediate payment, or

2. If he wants, he may wait patiently until the deadline lapses,

and then take it.

292
 When many partners divide real estate [amongst themselves],
there is no [right of ] preemption for their neighbour because of the
division.561

When someone buys a house, and the preemptor relinquishes his

[right of ] preemption, and then the buyer returns it due to the option
of examining it, or due to a stipulated condition or due to a blemish,
with the adjudication of a judge, the preemptor has no [right of ]
preemption.562 If, however, he returns it without the decision of a
judge, or they both (i.e. the buyer and the seller) agree to rescind the
sale, then the preemptor has the right of preemption.

293
 SHARIKAH – PARTNERSHIP

Partnership (sharikah) is of two kinds:

1. Partnership in owned things, and

2. Contractual partnership.

Sharikat al-Amlāk – Partnership in Owned

ings

Partnership in owned things is [regarding] a [physical] item

which two men inherit or which both of them buy, so it is not
possible for either of them to dispose of the share of the other except
with his permission. Each of the two is as if he were a stranger in the
share of his partner.

Sharikat al-‘Uqūd – Contractual Partnership

294
 e second type is the partnership of contracts [or contractual
partnership], and it is of four kinds:
1. Mufāwaḍah (unlimited partnership),

2. ‘Inān (limited partnership),

3. Ṣanā’i‘ (partnership in manufacture), and

4. Wujūh (partnership in liabilities).

Sharikat al-Mufāwaḍah – Unlimited

Partnership

With regards to unlimited partnership (sharikat al-mufāwaḍah), it

is that two men are partners and they [agree that they] are equal in
their wealth (māl), in their transacting [with it] and in their debt.563

It is permitted between two free Muslims who are major and

sane, but it is not permitted between a free person and a slave, nor
between a minor and a major, nor between a Muslim and a non-
Muslim.564

295
 It is formed according to [the contract of ] agency (wakālah) and
[of ] surety (kafālah).565

Whatever either of the two [partners] buys it is [due] from the

partnership, except food for his family and their clothing.566

Whatever debts are binding upon each of them in exchange for

what the partnership is valid in, the other is liable for them.567

If either of the two inherits property in which the partnership is

fit, or someone gives [property] as a gift to him and it reaches his
possession, the [partnership of ] mufāwaḍah is void568 and the
partnership becomes limited [‘inān partnership].

Partnership is only concluded with dirhams, dinars and copper

coins (fulūs)569 that are in ready demand, and it is not permitted in
anything other than that unless people deal in it, such as gold nuggets
and silver; in which case partnership is valid in them.570

296
 When the two intend to form a partnership in goods, each one of
the two is to sell his half of the property [in exchange] for half of the
property of the other. en they form the partnership.571

Sharikat al-‘Inān572 – Limited Partnership

With regards to limited partnership (sharikat al-‘inān), it is

formed on the basis of agency but not standing surety,573 and
disparity of wealth is valid in it.574 It is [also] valid if both of [the
partners] are equal in wealth but they have disparity in profit.575

It is permitted that either one of the two enters into the contract
with a part of his wealth, leaving out a part.576

It [sharikat al-‘inān] is not valid with other than with which we

have explained that unlimited partnership (mufāwaḍah) is valid
with.577

It is permitted if they are partners in such a way that from the side
of one of them there are dinars, and from the other side there are

297
dirhams.

Whatever either of the two buys for the partnership, its price is
demanded [from him] and not from the other [partner],578 and he
recovers [the price] from his partner according to his share in it.579

When the property of the partnership, or one of the two

properties, perishes before [the partners] buy anything, the
partnership is void.580 If either of the two buys something with his
[share of ] property, and the property of the other perishes before
[his] purchase, then the purchased [commodity] is [shared] between
them according to what they stipulated,581 and the purchaser resorts
to his partner for his share of its price.

Partnership [of ‘inān] is permitted even though they do not mix

the property.

If specified dirhams from the profit are stipulated for either of the
two, then the partnership [of ‘inān] is invalid.582

298
 Each one of the parties to the mufāwaḍah and the partners in
‘inān has [the right] to:
1. Make his property into merchandise (biḍā‘ah),
583
2. Pay it as muḍārabah,

3. Employ an agent who transacts with it,

4. Pledge or demand a pledge,

5. Hire a third party with it, and

6. Trade [it] for cash or credit.

His possession of the property is a possession of trust.

Sharikat aṣ-Ṣanā’i‘584 (Partnership in

Manufacture)

With regards to partnership in manufacture (sharikat aṣ-ṣanā’i‘), it

is permitted for two tailors or two dyers to be partners on the basis
that both accept work and the income is [divided] between them
both. Whatever work either one of the two accepts, it is binding on
him and is [also] binding on his partner. If one of the two [partners]

299
works but not the other, then the income is [divided] between them
both, [in] two halves.585

Sharikat al-Wujūh – Partnership in Liabilities

With regards to sharikat al-wujūh, the partnership is valid when

two men are partners and neither of them has property, on the basis
that they buy in their own manner and they sell [in their own
manner], and each of the two is an agent for the other in whatever he
buys.

If they stipulate the condition that the bought [commodity] is

[equally shared] between both of them, then the profit is [also] like
that. It is not permitted for them to differ in [the profit] thereof, and
if they stipulate that the bought [item] is in thirds, then the profit is
[also] like that. 586

Partnership is not permitted in collecting firewood, gathering

grass and hunting, and whatever either of the two hunts or gathers as
firewood, that is for himself and not for his partner.

300
 e partnership [of wujūh] is not valid if they are partners such
that one of them has a mule and the other has a leathern bucket with
which water may be drawn, and [they stipulate that] the income [is
divided] between them both.587 e income is absolutely for him
who draws the water, and the customary (mithl) payment for the [use
of the] leathern bucket is due from him, if the worker was the owner
of the mule. If [the worker] was the owner of the leathern bucket,
then the customary (mithl) payment for [the use of ] the mule is due
from him.588

Unsound Partnerships

[With regards to] every unsound partnership, the profit in it is

according to the amount of the capital, and making a condition of
disparity is void.

e partnership is void when either of the parties dies,589 or

becomes an apostate and moves to enemy territory (dār al-ḥarb).590

301
 None of the partners are to pay zakāh of the wealth of the other
without his authority.591 If each of the two does authorise his partner
to pay his zakāh [for him], and each of them pays [it], then the other
[partner] is [still] liable, [irrespective of ] whether he knew of the
payment [by the first] or did not know, according to Abū Ḥanīfah,
may Allah have mercy on him,592 but they,593 may Allah have mercy
on them, said that if he did not know, then he is not liable.

302
 MUḌĀRABAH – PROFIT-SHARING
PARTNERSHIP

Muḍārabah594 is a contract for partnership in profit, with capital

from one of the two partners and work from the other.

Muḍārabah is only valid with the property which we have

mentioned [earlier] that partnership is valid with.595

One of its preconditions is that the profit be [divided] between

them on a common basis, and neither of the two is entitled to
specified dirhams.596

e capital has to be handed over to the working partner

(muḍārib) and the owner of the capital (rabb al-māl) has no control
over it.

303
 When the profit-sharing trade is established unconditionally, it is
permitted for the working partner to buy, sell, travel, give as
merchandise and appoint an agent. He may not give the capital as
profit-sharing trade unless the owner of the capital authorises him [to
do] that, or says to him, “Act according to your opinion.”

If the owner of the capital specifies that he should transact in a

specific city, or in specific goods, [then] it is not permitted for him to
transgress that, and likewise, if he fixes a specific duration for the
profit-sharing trade, it is permitted, and the contract is void when it
lapses.

It is not [permitted] for the working partner to buy the owner of

the capital’s father, his son or someone who will become free from
him.597 If he buys them, he is a buyer on his own behalf, not for the
[contract of ] muḍārabah.598

304
 [Even] if there is any profit in the capital, he should not buy
someone who will become freed from him. If he does buy them, he is
liable for the capital of the profit-sharing trade.599 If, however, there
is no profit in the capital, it is permitted for him to buy them. If their
value increases, his share in them is free and he is not liable for
anything to the owner of the capital,600 and the freed [slave] works
for the owner of the capital in return for his share with him.601

When the working partner gives the capital [away] as profit-

sharing trade to someone else, and the owner of the capital had not
permitted him to do that, he is not liable for giving it [away] nor for
the transactions of the second working partner, until there is a
profit.602 When there is a profit, the first working partner is liable for
the capital to the owner of the capital.

When [the owner of the capital] gives it to [the working partner]

for a half [of the profit], and he permits him to give it [away] as

305
muḍārabah, and he does give it away for a third [of the profit], it is
permitted.603

If the owner of the capital said to him, “Whatever Allah, exalted

is He, bestows upon us, that is [divided] between us in two-halves,”
then the owner of the capital has half of the profit, the second
working partner has a third of the profit and the first working partner
has a sixth [of the profit].604

If he said, “Whatever Allah bestows upon you, that is [divided]

between us in two-halves,” then the second working partner
(muḍārib) has a third605 and whatever remains is [divided] between
the owner of the capital and the first working partner (muḍārib) as
two halves.

If he said, “Whatever Allah bestows, I have a half of it,” and he

[the first working partner] gives the capital to someone else as
muḍārabah for a half [of the profit], then the second has a half [of ]
the profit and the owner of the capital has [also] a half, and there is
nothing for the first working partner.

306
 If he606 stipulates two-thirds of the profit for the second working
partner (muḍārib), then the owner of the capital has a half of the
profit and the second working partner [also] has a half of the profit.
e first working partner is liable to the second working partner for
the amount of a sixth of the profit from his [own] property.

If the owner of the capital or the working partner die, the

muḍārabah is void.607

If the owner of the capital reneges [on Islam] and migrates to

enemy territory, the muḍārabah is void.

If the owner of the capital deposes the working partner (muḍārib)

and [the latter] has no knowledge [of that] so-much-so [that] he
[continues to] buy and sell, then his transacting [with the capital] is
valid.608 If, however, he knew of his [own] deposition and the capital
was [in the shape of ] goods in his possession, then he may sell them

307
and the deposition does not hinder him from [doing] that, but then
it is not permitted for him to buy anything else with its payment.

If [the owner of the capital] removes him, and the capital is

dirhams or dinars in cash, then he may not transact with it.

If both of them separate609 and there are debts due from the
capital and the working partner has profited from it, the judge
(ḥākim) should compel him to settle the debts. If there is no profit on
the capital, the settlement [of the debts] is not binding upon him,
and it is said to him, “Make the owner of the capital the agent for the
settlement [of the debts].”

Whatever of the profit-sharing trade’s capital perishes, it is

[deemed to be] from the profit not from the capital, and if the
perished [capital] exceeds the [amount of ] profit, then there is no
liability on the working partner regarding that.610

308
 If both of them had divided the profit, and the muḍārabah was in
its [original] state, then the whole of the capital or [even] a part of it
perished, they return the profit until the owner of the capital receives
the capital. en, if there is any surplus, it is [divided] between the
two, but, if it is less than the capital, the working partner is not liable
[for anything].

If they had divided the profit and [then] revoked the profit-
sharing trade, then formed it again and the capital, or a part of it,
perishes, they do not return the first profit [that of the first contract
of profit-sharing trade].611

It is permitted for the working partner to sell for cash or for

credit.

He612 cannot marry off a slave or a slave-woman from the profit-

sharing trade’s property.

309
 WAKĀLAH – AGENCY

Every contract, the forming of which is permitted for a human

himself, it is [also] permitted for him to appoint someone else as an
agent in it.613

It is permitted to appoint (tawkīl) an agent to dispute in all rights

and to secure them. It is permitted for securing the fulfilment [of all
rights] except in [cases of ] punishments for contraventions of the
limits (ḥudūd) and retaliatory punishments (qiṣāṣ), for agency is not
fit for securing their fulfilment with the absence of the principal
(muwakkil) from the session (majlis).614

310
 Abū Ḥanīfah, may Allah have mercy on him, said that appointing
an agent is not permitted for a dispute but with the consent of the
litigant, unless the principal is ill or absent for a travelling distance of
three days or more, but Abū Yūsuf and Muḥammad, may Allah have
mercy on them, said that the appointment of an agent is permitted
without the consent of the litigant.

Of the conditions of [the contract of ] agency are that:

1. e principal be one of those who owns disposal [of his
right]615 and who is bound by the rulings,616 and

2. e agent be [one] of those who understands sale and

intends it. 617,618

It is permitted for a free and major [person] or an authorised

[slave] to appoint an agent, the like of themselves.

If they [a free and major [person] or an authorised [slave]]

appoint a legally incompetent minor, who [nevertheless] understands
buying and selling, or a legally incompetent slave, then [that] is
permitted,619 and the rights are not relevant to them, but they are
relevant to their principals.620

311
Contracts that are entered into by agents are of two types:
1. Every contract which the agent attributes to himself, like
selling, buying and leasing. e rights in that contract attach
to the agent and not to the principal. [e agent] hands over
the goods and takes possession of the payment. e payment
is demanded from him whenever he buys and he takes
possession of the goods. He is challenged in the case of a
blemish [in the goods];

2. Every contract which the agent attributes to his principal,

like the marriage contract (nikāḥ), divorce at the request of
the wife (khul‘) and conciliation for intentional manslaughter,
for its rights attach to the principal and not the agent. e
agent of the husband does not demand the dowry (mahr) and
the agent of the wife is not bound to submit her [to the
husband].

312
 When the principal demands payment from the buyer, he may
refuse him, but if he pays it to him, it is permitted, and the agent [of
the seller] may not demand it from him a second time.

Whoever appoints a man to purchase something, it is essential

that he specifies its kind, its description and the amount of its price,
unless he appoints him according to a general [contract of ] agency,
and so says, “Purchase whatever you wish for me.”

When the agent buys and takes possession of the goods, then
becomes aware of a blemish, he may return them because of that
blemish as long as the goods are [still] in his possession. However, if
he has handed them over to the principal, he may not return them [to
the seller] except with the permission [of the principal].

It is permitted to appoint an agent for ṣarf (currency transactions)

and salam (advance payment) contracts. If the agent separates from
his dealing partner prior to taking possession, the contract is void,
but the separation of the principal is not taken into account.

313
 If the agent for purchase gives the payment from his own property
and takes possession of the goods, he may recover it from the
principal. If the goods perish in his possession before he has secured
them, then they perish as the property of the principal and the
payment does not lapse.621 [e agent] may detain [the commodity]
until he receives the payment.

If he secures it and it perishes in his possession, he is liable [as he

would have] liability for a pledge,622 according to Abū Yūsuf, may
Allah have mercy on him, and [as he would have] liability for sold
golds,623 according to Muḥammad, may Allah have mercy on him.

When a man appoints two men as agents, then neither of the two
may transact in that [matter for] which they have been appointed
without the [presence of the] other, unless he appoints them:
1. [To represent him in] a dispute,

2. To divorce his wife without consideration,

3. To set his slave free without consideration,

4. To return a deposit that is with him, or

314
 5. To discharge a debt that he owes.

e agent may not appoint an [other] agent [for] that which he

[himself ] has been appointed an agent for, unless the principal
authorises him or says to him, “Do as you wish.”

If he appoints an agent without the authorisation of his principal,

and the [second] agent makes a contract in his presence, it is valid,
and if he makes a contract in his absence and the first agent permits
him [to do that], it is valid.

e principal may depose the agent from the agency.624 If [the

notice of ] the deposal does not reach [the agent], then he is [still] an
agent, and his transactions are valid until he comes to know [of his
deposition].

at which Invalidates Agency

e agency is void upon the death of the principal, by his

complete insanity and by his moving to enemy territory as an
apostate.625

315
 1. When a mukātab slave appoints an agent, and then he or the
person authorised by him becomes incapable,626 then he is
declared legally incompetent, or

2. Two partners who then separate.

ese are all instances that nullify the [contract of ] agency,
[irrespective of ] whether the agent knows or does not know.

When the agent dies, or suffers complete insanity, his agency is

void. If he moves to enemy territory as an apostate, transacting is not
permitted for him unless he returns as a Muslim.627

Whoever appoints a man [as an agent] for something, then the

principal himself transacts with that which he appointed [the agent],
the agency is void.628

316
 [With regards to] the agent for selling and buying, according to
Abū Ḥanīfah, may Allah have mercy on him, it is not permitted for
him to enter into a contract, with his [own] father,629 his grandfather,
his son, his grandson, his wife, his slave and his mukātab slave.630
Abū Yūsuf and Muḥammad, may Allah have mercy on them,
however, said that his selling to them according to the customary
price (mithl al-qīmah) is permitted, except in [the case of ] his slave
and his mukātab slave.

[With regards to] the sales agent, his selling is permitted in small
or large [quantity], according to [Imam] Abū Ḥanīfah, may Allah
have mercy on him, but they,631 may Allah have mercy on them, said
that his selling is not permitted in [such a] diminished [quantity] to
which the people are not accustomed.632

[With regards to] the purchasing agent, his contract is valid

according to the customary value and [up] to any excess to which
people are accustomed.

317
 at to which the people are not accustomed is not allowed, and
whatever the people are not accustomed to is that which does not
come under the valuation of the valuers.633

If the sales agent guarantees the payment on behalf of the

purchaser, his guarantee is void.

When someone appoints an agent to sell his slave and he sells a

half of him, it is permitted according to Abū Ḥanīfah, may Allah
have mercy on him. If he appoints him as an agent to buy a slave and
he buys a half of him, the purchase is suspended, and if he buys the
rest of him, it is binding on the principal.

If he appoints him as an agent to buy ten riṭls of meat for [the

price of ] one dirham, and he buys twenty riṭls of meat for one
dirham the like of which is sold as ten riṭls for one dirham, then

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[only] ten riṭls [of meat] for half a dirham is binding on the principal,
according to Abū Ḥanīfah, may Allah have mercy on him. ey,634
may Allah have mercy on them, however, said that twenty [riṭls is
binding on him].

If he appoints him as an agent to buy something specific, he [the

agent] should not buy it for himself.

If he appoints him [an agent] to buy a slave without specification,

and he [subsequently] does buy a slave, he is for the agent, unless he
says, “I intended to buy [him] for the principal,” or if he buys him
from the property of the principal.

e agent for a dispute [settlement] is [virtually] an agent to take

possession, according to Abū Ḥanīfah and Muḥammad, may Allah
have mercy on them, and the agent for taking possession of
[repayment of ] a debt is an agent for [the settlement of a] dispute,
according to Abū Ḥanīfah, may Allah have mercy on him.

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 When the agent in a dispute confesses against his principal in the
presence of the judge, his confession is allowed, but his confession is
not allowed against [his principal] in the presence of someone other
than the judge, according to Abū Ḥanīfah and Muḥammad, may
Allah have mercy on them, but that he should leave the dispute. Abū
Yūsuf, may Allah have mercy on him, however, said, “His confession
against [the principal] in the presence of someone other than the
judge is permitted.”

Whoever claims to be the agent of someone who is absent in the

affair of collecting his credit and the debtor affirms that, [the debtor]
is ordered to submit the debt to him. If the absentee [principal]
arrives and acknowledges [the agent as his bailiff ],635 it is permitted.
Otherwise the debtor pays him a second time and recovers it from
the agent if it is still in his [the agent’s] possession.636

If he says, “I am the agent for the recovery of the deposit,” and the
depositary verifies it, he is not ordered to hand it over to him.

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 KAFĀLAH – SURETY

Surety (kafālah) is of two types:

1. Surety of person (nafs), and
637
2. Surety of property (māl).

Surety of Person

[e contract of ] standing surety for a person is permitted, and

the person who stands surety for him must present the principal
(makfūl bihī).
It is concluded when one says:
1. “I am surety for the life of so-and-so,”
638
2. “…for his neck,”

3. “…for his soul,”

4. “…for his body,”

5. “…for his head,”

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 6. “…for a half of him,”

7. “…for a third of him.”

Likewise, if one says:

1. “I give guarantee for him,”

2. “He is [a liability] upon me,” or “… to me,”

3. “I am responsible for him,” or “… surety for him.”

If a condition is stipulated in the [contract of ] surety to surrender

the principal at a specific time, it is binding upon [the one standing
surety] to present him when the one to whom the surety was given
(makfūl lahū) demands him from him at that time. If [the one
standing surety] presents him [then it is good], but otherwise the
judge (ḥākim) detains [the one standing surety].639

If [the one standing surety] presents him [to the one to whom the
surety was given] and surrenders him in a place where the one to
whom the surety was given can present his case legally against [the

322
principal], the one standing surety is free from [the bonds of the
contract of ] surety.640

When he stands surety to surrender [the principal] in the

assembly of the judge but he surrenders him in the marketplace, he is
[still] free [of the obligations of the contract of surety], but if he
submits him in the wild, he is not free [of those obligations].641

If the principal dies, the one standing surety of person is free from
the [contract of ] surety.

If he himself undertakes the surety [on the condition] that if he

does not present him at such a time then he [himself ] is liable for
whatever is due upon [the principal], and that is one thousand
[dirhams], and he does not present him at [that] time, the liability
for the property [of one thousand dirhams] is binding upon him, but
he is not clear of the [contract of ] surety of person.642

Standing surety of person is not permitted in punishments for

contraventions of the limits (ḥudūd) and retaliatory punishments
(qiṣāṣ), according to Abū Ḥanīfah, may Allah have mercy on him.643

S fP
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 Surety of Property

[With] regards to [the contract of ] standing surety for property, it

is permitted when the debt is valid, whether the principal is known or
unknown. For example, someone says:
1. “I am surety for him with regards to one thousand dirhams,”
or

2. “…with regards to whatever he owes you,” or

3. “…whatever comes to you in this transaction.”

e one to whom the surety was given (makfūl lahū) has the
option:
1. If he wants, he may demand from the one who owes the
original [debt],644 or

2. If he wants, he may demand from the one who was surety.

It is permitted to tie the [contract of ] surety with conditions. For

example, someone says:

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 1. “Whatever you sell to so-and-so, [its payment] is [due] from
me,”

2. “Whatever is due from him to you is due from me,” or

3. “Whatever so-and-so expropriated from you is [due] from

me.”

When someone says, “I am surety for whatever he owes you,”

[and] then evidence is established that [the principal, or debtor] owes
one thousand [dirhams], the one who is surety is liable for it. If,
however, evidence is not established, then the [decisive] statement is
the saying of the person who is surety along with his oath about the
amount he acknowledges, and if the person for whom he is surety
acknowledges more than that [amount], he is not believed against the
one who is surety for him.645

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 Being surety is permitted by the order and [also] without the
order of the person on whose behalf someone is surety (makfūl
‘anhu); if someone is surety by his order, then he claims [from him]
whatever he paid on his behalf, but if he is surety without his order,
then he does not claim for what he paid on his behalf.
Someone being surety may not demand property from the person
on whose behalf someone is surety (makfūl ‘anhu) before he pays it
on his behalf, but if [the person who is surety] is obliged [to give] the
property, [then] he may compel the person on whose behalf he is
surety (makfūl ‘anhu) [to pay] until he clears it. If the person seeking
[the sum]646 absolves the person on whose behalf someone has been
surety, or he receives [the property] from him, the person who is
surety is [also] free. Attaching a condition to absolving someone
from the [contract of ] surety is not allowed.647

Every right, the fulfilment of which is not possible by the person

who is surety, the [contract of ] surety is not valid for it, such as [in
the cases of ] punishments for contraventions of the limits (ḥudūd)
and retaliatory punishments (qiṣāṣ).

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 It is permitted for someone to be surety for payment on behalf of
a buyer,648 but if he is surety for the object of sale on behalf of a
seller, it is not valid.649

Whoever hires an animal for carrying, if it is a specific [animal],

the [contract of ] surety is not valid for the load, but if it is not
specific, [then] the [contract of ] surety is permitted.

[e contract of ] surety is only valid with the acceptance of the

person to whom the surety was given (makfūl lahū) within the
session of the contract, except in one case, and that is when an ill
person says to his heir, “Stand surety on my behalf for whatever debt
is due upon me,” so that he stands surety for him in the absence of
the creditors.

327
 If [repayment of ] the debt is due from two people and each of the
two stands surety [and is] liable for the other, then whatever either of
them pays, he does not recover it from his partner unless that what
he gives is more than half,650 [in which case] he may then recover the
excess.

When two persons are surety on behalf of one [and the same]
person for a thousand [dirhams] such that each of the two stands
surety for his partner, then whatever either of them gives, he recovers
it from his partner, whether it is a little or a lot.

[e contract of ] surety is not permitted for the property of the

contract in which a slave agrees to purchase his own freedom
(kitābah), irrespective of whether a free man stands surety for [the
slave who has contracted to purchase his freedom (mukātab)] or a
slave.

When a man dies owing debts, and he has not left anything, and a
man stands surety to the creditors [for him], the [contract of ] surety
is not valid, according to Abū Ḥanīfah, may Allah have mercy on
him, but according to Abū Yūsuf and Muḥammad, may Allah have
mercy on them, it is valid.

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 ḤAWĀLAH – TRANSFER OF DEBT

Transfer (ḥawālah) of debts is permitted. It is valid with the

consent of:
1. e primary debtor who is transferring the debt (muḥīl),
2. e creditor (muḥṭāl), and
e person to whom responsibility for the debt is transferred
3.
(muḥṭāl ‘alayhi).651

When the transfer of debt is complete, the primary debtor who is

transferring the debt becomes free of the debts,652 and the creditor
may not recover it from the primary debtor who is transferring the
debt, unless his right is infringed.

According to Abū Ḥanīfah, may Allah have mercy on him,

infringement [of a right] is by either of two ways:

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 1. Either [the person to whom responsibility for the debt is
transferred] denies [the existence of ] the [contract of ] transfer
of debt and takes an oath [upon it], and the creditor has no
evidence against [the person to whom responsibility for the
debt is transferred], or
[e person to whom responsibility for the debt is transferred]
2.
dies insolvent.

Abū Yūsuf and Muḥammad, may Allah have mercy on them, said
that these are two views, and there is a third view and that is that the
judge (ḥākim) declares [the person to whom responsibility for the
debt is transferred] insolvent during his lifetime.

When the person to whom responsibility for the debt is

transferred demands from the primary debtor who is transferring the
debt the same amount as the property of the transferal of debt, and
the primary debtor who is transferring the debt says, “I have
transferred the debt I owe you,” his statement is not accepted and he
owes the equal [amount] of the debt.

330
 If the primary debtor who is transferring the debt demands from
the creditor that for which [the person to whom responsibility for the
debt is transferred] accepts the transfer and says, “I made the transfer
so that you may take [the debt] for me,” and the creditor says, “No,
but you made me the transfer of the debt [in exchange] for a debt
which I owe you,” the [decisive] statement is the saying of the
primary debtor who is transferring the debt along with his oath.

Bills of exchange (safātij) are disapproved; and that is a loan by

which the person who lends benefits by safety from the perils of the
way.653

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 ṢULḤ – NEGOTIATED SETTLEMENT

Negotiated settlement (ṣulḥ)654 is of three types:

1. Negotiated settlement with acknowledgement,
Negotiated settlement with silence – that is when the one
2. against whom the claim is made (mudda‘ā ‘alayhi) does not
confirm but neither does he deny, and
3. Negotiated settlement with denial.
All of that is valid.

If negotiated settlement occurs from an acknowledgement, then

that which is taken into account in commercial goods655 is taken
account of in it, if it takes place in the exchange of property for
property. If, however, it occurs in the exchange of property for
benefits, then it is taken into account as [that] in leases.656

332
 Negotiated settlement arising from silence and denial on the part
of the defendant is for the expiation of an oath and to discontinue a
dispute, and with respect to the plaintiff it is in the sense of
compensation.

When one makes a settlement concerning a house there is no

right of preemption in that, but if he makes a settlement against a
house [then] there is a right of preemption in that.

When the settlement arises from an acknowledgement and entails

some benefits, the defendant recovers that share from the
compensation.

When the settlement arises from silence or denial, then a

disputant merits it, the claimant returns to litigation [with the new
claimant] and returns the [full] consideration [to him].657

If someone is entitled to a part of that [disputed item], he returns

his share and returns to litigation over it.

333
 If someone claims a right in a house and does not make that
[right] clear,658 then settlement is made [with him] for something,
and later [it appears that] he is entitled to a part of the house, [the
defendant] does not return any of the consideration.659

Settlement is permitted in claims concerning properties, benefits,

and deliberate and accidental offences, but it is not permitted in
claims of ḥadd [punishments].660

When a man claims marriage with a woman and she denies [it],
and she then makes a settlement with him by giving him some
property so that he drops the claim, it is permitted, and it is in the
sense of khul‘ (divorce at the instance of the woman).

When a woman claims marriage with a man and he makes a

settlement with her by giving her some property, it is not valid.

If a man claims against [another] man that [the latter] is his slave,
and [the latter] makes a settlement with him for property which [the

334
latter] gives [to] him, it is valid, and it is with respect to the claimant
in the sense of setting [a slave] free in exchange for property.661

Everything upon which a settlement takes place and it is owed

due to a contract of loan, it is not based upon compensation,662 but it
is based upon [the fact] that he took the fulfilment of a part of his
right and relinquished the remainder of it, like someone who is owed
a thousand good quality dirhams by another [person], and he makes a
settlement with him for five hundred dirhams adulterated with
alloy,663 which is valid, and it is as though he has absolved [the
debtor] of a part of his right. If, however, he made a settlement with
him for a thousand [dirhams] to be paid at a later date, it is [also]
valid, and is as if he postponed the right itself.664

It is not permitted for him to make a settlement with [the debtor]

for dinars [deferred] up to a month.665

If there are a thousand [dirhams] due him at a later date and he

makes a settlement with him for five hundred [to be paid]
immediately, it is not permitted.

335
 If a thousand black dirhams are owed him and he makes a
settlement with [the debtor] for five hundred white666 [dirhams], it is
not permitted.667

Whoever appoints an agent [to make] a settlement on his behalf

and he makes a settlement with [that party], [then] whatever [the
agent] makes the settlement with is not binding on the agent, unless
[the agent] [personally] becomes responsible for it, but the property
is binding upon the principal [only].

If [the agent] makes a settlement [with another] on his behalf

without his order, then there are four perspectives:
If he made the settlement with property and he [personally] is
1.
liable to him [for it], the settlement is complete,
2. Similarly, if he says, “I have made a settlement with you for
two thousand [dirhams],” or “…for this slave of mine,” the
settlement is complete, and the surrender [of the two

336
 thousand dirhams or the slave, as the case may be,] to him is
binding upon him,
Similarly, if he says, “I have made a settlement with you for a
3. thousand [dirhams]” and [immediately] surrenders it to him,
and
Similarly, if he says, “I have made a settlement with you for a
thousand” and does not surrender that to him, [in which case]
4. the contract is suspended, if the defendant permits it, it is
allowed and the thousand is binding upon him,668 but if he
does not permit it, it is void.

When there is a debt [owed] between two partners and one of the
two makes a settlement of his share upon some cloth, then his
partner has an option:
If he wants, he may pursue the one who owes the debt for his
1.
half [of the share of debt], or
If he wants, he may take half of the cloth, unless his partner
2.
becomes responsible to him for a quarter of the debt.

337
 If one [partner] receives half of his share from the debt, it is
permitted for his partner to share with him in that which he has
taken. en later they may resort to the debtor for the remainder [of
the debt].

If one of the two [partners] buys goods with his share of the debt,
it is [permitted] for his partner to hold him liable for a quarter of the
debt.669

When there [exists] a [contract of ] salam between two partners

and one of them makes a settlement of his share upon the capital, it
is not permitted according to Abū Ḥanīfah and Muḥammad, may
Allah have mercy on them. But Abū Yūsuf, may Allah have mercy on
him, said that the settlement is permitted.

When there is inheritance [to be divided] between heirs and they

exclude one of themselves from it by [settlement of ] some property
which they give him, and the inheritance is real property or goods, it
is permitted, whether they give him a little or a lot. If the inheritance
is silver, and they give [him] gold, or it is gold and they give silver,
then it is likewise.670

338
 If the inheritance is gold and silver plus other than that and they
make a settlement with him for gold and silver, then it is essential for
whatever they give him to be more than his share in that genus, so
that his share is equal to it and the excess is for his right from the
remainder of the inheritance.671

When the inheritance is a debt owed by people, and they include

him in the settlement of that on the basis that they exclude from it
the one who makes the settlement, and that the debt is for [the heirs
only], then the settlement is void [with that condition]. If they
stipulate that he release the debtors from it and not resort to [the
inheritors] for the share of the one who made the settlement, then
the settlement is permitted.672

339
 HIBAH – GIFTS

[e contract of ] gift (hibah) becomes valid by offer and

acceptance673 and it becomes complete with taking possession.

If the person given the gift (mawhūb lahū)674 takes possession

within the [same] session without the authority of the person who
gives the gift (wāhib),675 it is permitted, but if he takes possession [of
the gift] after separation,676 it is not valid, unless the person who
gives the gift allows him [to take] possession.

[e contract of ] gift takes place by [the person who gives the
gift] saying:
1. “I give you a as a gift…,”
2. “I make a present of to you…,”

340
 3. “I give you…,”
4. “I feed you this food,”
5. “I render this garment yours,”
6. “I have given you this thing for life,” and
“I have mounted you on this [riding] animal,” when, by the
7.
mounting, he intends it as a gift.

A gift is not permitted in that which is divisible,677 unless it is

divided and [also] free from rights.678

A gift of common property in that which is not divisible is

permitted.679

Whoever gives a small portion [of that] which is communal as a

gift then the gift is vitiated, but if he divides it and gives it away
[then that] is permitted.680

If someone gifts flour [which is still] in the [grains of ] wheat, or

oil in the sesame, the gift is vitiated. So, if he grinds [the grains] and
hands [it] over, it is [still] not permitted.

341
 If the material [gift] is in the possession of the one given the gift,
then he has ownership of it through gift, even if he does not renew
taking possession of it.

When a father gives gifts to his minor son, the son acquires
ownership of it with the contract [itself ], [even though there is no
possession involved], but if a non-relative gives gifts to him, it is
complete by the father taking possession.

It is permitted if [a non-relative] gives gifts to an orphan and his

guardian takes possession of it for him.

If someone is [still] in the lap of his mother [as an infant], then

her taking possession of it for him is permitted, and likewise, if he is
in the lap of a non-relative who is raising him, then his taking
possession of it for [the infant] is permitted.

If a minor takes possession of the gift himself, and he is

intellectually sound, it is permitted.

342
 It is permitted if two persons gift one house to a single person.

If one person gifts to two persons, then according to Abū

Ḥanīfah, may Allah have mercy on him, it is not valid. ey,681 may
Allah have mercy on them, however, said that it is valid.

Retraction of a Gift

When someone gives a gift to a non-relative, retracting it is

permitted, unless:
[e person given the gift] gives a consideration to [the
1.
person who gives the gift] for it,682 or
2. It increases in such a way as is mingled [in it],683
3. One of the contracting parties dies,
4. e gift leaves the ownership of the person given the gift.684

If someone gives a gift to an un-marriageable close relative (dhū

raḥm maḥram), then there is no [right of ] retracting it, and likewise
whatever one of two spouses gives as a gift to the other.

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 When the person given the gift says to the giver of the gift:
1. “Take this in consideration for your gift,” or
2. “…in exchange for it,” or
3. “…as an equivalent for it,”
and the giver of the gift takes it, the [right of ] retraction lapses
thereby.

If a non-relative gives to [the giver of the gift] a consideration on

behalf of the person given the gift, as a contribution, and the giver of
the gift takes the consideration, the [right of ] retraction lapses.

If someone is entitled to a half of the gift, [then] he may claim a

half of the consideration [from the person who gives the gift]. If he is
entitled to a half of the consideration, [then] [the person who gives
the gift] may not retract anything of the gift, unless he returns
whatever else of the consideration there may be. ereafter, he may
retract the whole of the gift.

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 Retraction of the gift is not valid except with the consent of both
parties, or with the order of the judge (ḥākim).

When the material gift is ruined and then someone entitled to it

appears and takes compensation from the person given the gift, he
may not claim anything from the person who gives the gift.

When one gives a gift with the stipulation of a counter

consideration, [then] it is determined by the mutual taking
possession of both considerations. When both parties have taken
possession, the contract [of gift] is valid, and it has the [same] ruling
as that of a [contract of ] sale in which [the commodity] may be
returned due to a blemish, and there is the option to purchase subject
to investigation (khiyār ar-ru’yah), and for which there is the right of
preemption.

‘Umrā (the grant of the use of something for life)685 is permitted

for the person given the gift (mu‘mar lahū),686 during his life, and to
his heirs after his death.

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 Granting something as a gift on succession (ruqbā)687 is void,
according to Abū Ḥanīfah and Muḥammad, may Allah have mercy
on them, but Abū Yūsuf, may Allah have mercy on him, said that it is
permitted.

Whoever gifts a slave-woman as a gift [whilst] excluding her

unborn child, the gift is valid but the exclusion is void.

Ṣadaqah is like a gift: it is only valid with taking possession and it

is not permitted in commonly held property which has the possibility
of being divided.

When one gives something in charity to two poor people it is

permitted. e retraction of charity is not valid after its being taken
possession of [by the person given the charity].

Whoever makes a vow that he will give his property in charity, it

is binding upon him to donate [something] of the category on which
zakāh is incumbent.688

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 Whoever vows to give what he owns as charity, it is binding upon
him to give it all, and it is said to him, “Retain [for yourself ] of it the
amount which you spend on yourself and [on] your family, until you
earn [more] wealth. When you have earned [more] wealth, you
should donate of that [as charity] equal to what you had retained for
yourself.”689

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 WAQF – ENDOWMENT

e ownership of the endower (wāqif) [of property] does not end

by endowment, according to Abū Ḥanīfah, may Allah have mercy on
him, unless the judge (ḥākim) rules thus, or [the endower] connects it
to his [own] death, and thus says, “When I die, then I [will] have
endowed so-and-so with my house.” Abū Yūsuf, may Allah have
mercy on him, said that the ownership ends by the mere mention [of
endowment],690 and Muḥammad, may Allah have mercy on him,
said that ownership does not end until he appoints a guardian for the
endowment and hands it over to him.

If the endowment is valid, in accordance with the differences [of

the Imams], it leaves the ownership of the endower but it does not
enter the ownership of the person who has been endowed (mawqūf
‘alayhi).691,692

348
 e endowment of common property is permitted, according to
Abū Yūsuf, may Allah have mercy on him, but Muḥammad, may
Allah have mercy on him, said that it is not permitted.

According to Abū Ḥanīfah and Muḥammad, may Allah have

mercy on them, endowment is not complete unless [the endower]
renders its conclusion in such a way that it never ceases.693

Abū Yūsuf, may Allah have mercy on him, said that when [the
endower] mentions in it a way which ceases, it is permitted, and after
that it is for the poor, even if he does not mention them.694

Endowment of real estate is valid, but the endowment of that

which may be moved (i.e. movable property) or altered is not
permitted.

Abū Yūsuf, may Allah have mercy on him, said, “When one
makes an endowment of land [together] with its cattle695 or its

349
workers, when they are his slaves, it is permitted.”

Muḥammad, may Allah have mercy on him, said that the

endowment of horses [and camels] and weapons [in the way of
Allah] is permitted.

When endowment is complete, its sale is not allowed, nor transfer

of ownership of it, unless it is common property, according to Abū
Yūsuf, may Allah have mercy on him, such that [when] a shareowner
demands [its] division, the mutual division [of it] is valid.696

[From the proceeds of the endowment] it is necessary to begin to

elevate the endowment by tending it [the endowed property],
whether the endower had stipulated that or not.

When one endows a house for the dwelling of his son, the repairs
are due from the one who has the right to dwell in it. If he refuses [to
pay] that, or he is poor, the judge (ḥākim) leases it and has it repaired
from its rent. When it has been repaired, [the judge (ḥākim)] returns
it to the one who has the right to dwell in it.

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 Whatever of the building or the integral part of the endowment
collapses, the judge (ḥākim) should, if he requires it, use it on the
repair of the endowment.697 If he does not need it, he should keep it
until he requires [it] in his repairs, [and] so, he can utilise it
therein.698 It is not permitted to divide it amongst those entitled to
the endowment.

When the endower appoints the proceeds of the endowment for

himself, or he appoints the guardianship (tawliyah) to himself, it is
permitted, according to Abū Yūsuf, may Allah have mercy on him,
but Muḥammad, may Allah have mercy on him, said that it is not
permitted.

When someone builds a mosque, its ownership remains with him

until he separates it from his ownership with its path,699 and permits
people to pray in it. So, when [even] a single person has prayed in it,
his ownership ceases, according to Abū Ḥanīfah, may Allah have
mercy on him, but [Imam] Abū Yūsuf, may Allah have mercy on

351
him, said that his ownership ceases when he says, “I make [this] a
mosque.”

Whoever builds a watering place for Muslims, an inn for travellers

to stay in or a ribāṭ fortress, or makes his land a cemetery, his
ownership of that does not cease, according to Abū Ḥanīfah, may
Allah have mercy on him, until the judge (ḥākim) decides it. Abū
Yūsuf, may Allah have mercy on him, however, said that his
ownership ceases by his statement.700

Muḥammad, may Allah have mercy on him, however, said,

“When people drink from the watering place, reside in the inn and
the ribāṭ fortress, and bury [their dead] in the cemetery, the
ownership [of the endower] ceases.”

352
 GHAṢB – USURPATION

Whoever usurps a fungible item701 and it perishes whilst in his

possession is responsible for [replacing it with] one similar to it. If,
however, it is non-fungible, then its value is due from him.702

e return of the usurped (maghṣūb) material [item] is obligatory

upon the usurper (ghāṣib). If he claims that it was destroyed, then the
judge (ḥākim) detains him until he knows that if it was still existent,
[the usurper] would definitely have presented it. en, he judges
against him [with regards] to its substitution.

Usurpation is committed in what is moveable and alterable.703

When someone usurps real estate and it perishes [whilst] in his

possession, he is not liable for it, according to Abū Ḥanīfah and Abū

353
Yūsuf, may Allah have mercy on them, but Muḥammad, may Allah
have mercy on him, said that he is liable.704

Whatever loss he incurs in it due to his act or his residing [in it] is
liable for it, according to the verdict of all of them, may Allah have
mercy on them all.

When the usurped [item] perishes in the possession of the

usurper, [whether it was] due to his act or not due to his act, then he
is liable for it. If a loss [occurred] whilst it was in his possession, then
he is liable for the reduction.

Whoever slaughters someone else’s sheep or goat without his

permission, then its owner has an option:
1. If he wants, he may hold him liable for its [contemporary]
value and its [the slaughtered sheep or goat] surrender to him,
or
2. If he wants, he may hold him liable for the reduction [in its
value].705

Whoever rips a small tear [in] someone else’s garment is liable for
the reduction [in its value]. If he rips a large tear such that its uses in
general are void, its owner may hold him liable for its complete value.

354
 When the usurped material item alters due to the act of the
usurper such that its name (i.e. nature) and most of its main uses
cease, [then] the ownership of the victim (maghṣūb minhu) also
ceases,706 and the usurper, thereby, acquires its ownership and is
liable for it,707 and it is not lawful for [the usurper] to benefit from it
until he gives something in exchange for it. is is as [when]
someone:
1. Usurps a goat and slaughters it, [then] roasts it or cooks it,
2. Usurps wheat and grinds it,
3. [Usurps] a piece of iron and makes it into a sword, or
4. [Usurps some] brass and makes it into a pot.

If someone usurps silver or gold, and coins it into dirhams or

dinars, or [into] a pot, the ownership of the [rightful] owner does not
cease, according to Abū Ḥanīfah, may Allah have mercy on him.

355
 Whoever usurps a beam and builds upon it, the ownership of it by
its [rightful] owner ceases, and [payment of ] its price-value is
binding upon the usurper.708

Whoever usurps some land and plants in it or builds [on it], it is

said to him, “Eradicate the plants and the building, and return it
vacant to its owner.”

If the land would suffer a loss due to that eradication, then it is up

to the owner to compensate him the value of the eradicated building
and the plants.709

Whoever usurps a garment and dyes it red, or [usurps] barley-

broth and mixes ghee with it, its owner has an option:
If he wants, he may hold him liable for the value of the [un-
1. dyed] white garment, and the equivalent of the barley-broth,
and submit [those goods] to the usurper, or
If he wants, he may take them both [back] and be liable to
2. [the usurper] for what has increased [with regards to] the
colour and the ghee in both of them.

356
 Whoever usurps a material item and causes it to disappear, and
the owner holds him liable for its value, the usurper acquires
ownership of it upon the [payment of its] value.
e [decisive] statement regarding the value [of the item] is that
of the usurper, [together] with his oath, unless the owner provides
evidence of it being more than that. So, when the item appears and
its value is more that what [the usurper] had paid as compensation,
and that he had paid the compensation according to the saying of the
owner, or due to the evidence provided by [the owner], or due to the
usurper [himself ] refraining from [taking] the oath, then there is no
option for the owner and [the usurped item] is the usurper’s. If
however, [the owner] had paid compensation due to the statement of
the usurper [himself ], with his oath, then the owner has the option:
1. If he wants, he may execute the guarantee, or
If he wants, he may take the item and return the
2.
consideration.

357
 e offspring of a usurped female, its growth (namā’) and the fruit
of a usurped orchard are a trust in the hands of the usurper; if they
perish in his possession, there is no liability upon him unless he
transgresses therein or its owner demanded it [from him] and [the
usurper] refused him.

Whatever [financial] loss a slave-woman incurs due to giving

birth, it is within the liability of the usurper. So, if there is any
sufficiency in the value of the child, the loss is compensated with the
child, and its liability shall lapse from the usurper.710

e usurper is not liable for the benefits of what he usurped,

unless he damages [it] by using it, in which case he pays a fine for the
reduction in value.

When a Muslim wastes the alcohol of a dhimmī, or his pigs, he

pays compensation according to its value,711 but if a Muslim wastes

358
them [and they belong] to a Muslim, he is not liable.712

359
 WADĪ‘AH – DEPOSITS

A deposit713 (wadī‘ah) is a trust in the possession of the keeper

(mūda‘);714 when it perishes [whilst] in his possession, he is not liable
for it.715

e keeper (bailee) may safeguard it himself, or by means of

someone who is in his household.716 en, if he safeguards it by
someone other than them, or deposits it [with someone], he is liable
[for any loss that incurs], unless a fire occurs in his house and
therefore he surrenders it [for safekeeping] to his neighbour, or he is
in a ship and fears its sinking, and so throws it into another ship.

If the keeper mixes it with his own property in such a way that it
cannot be distinguished, he is liable for it, or if its owner (bailor)
demands it and he keeps it back from him whilst he is able to hand it
over, he is liable for it.717

360
 If it mixes with his goods without his action, then he becomes a
partner with its owner.718

If the keeper spends some of it and the remainder perishes, he is

liable for that amount [which perished].

If the keeper spends some of it and returns a similar [amount] of

it and mixes it with the rest, he is liable for all of it [if it perished].

When the keeper transgresses in [the rules of ] the deposit, for

instance:
1. It is a [riding] animal and he rides it, or
2. A garment and he puts it on, or
3. A slave and he takes service from him, or
4. He deposits it with someone else,
then he removes the transgression and returns it to his [own]
possession, the liability [also] ceases.

361
 If its owner demands it and he denies him it,719 he is liable for it,
and if he [later] returns to admission [of the deposit], he is not free
from the liability.

e keeper may travel with the deposit, even though it is a burden

and discomfort.720

When two men place a deposit with one [and the same] man,
[and] then one of them appears and demands his share of it, [the
keeper] should not give him anything, according to Abū Ḥanīfah,
may Allah have mercy on him, until the other [depositor] appears.
Abū Yūsuf and Muḥammad, may Allah have mercy on them,
however, said that he should give his share to him.

If a man deposits a divisible item between two men, it is not

permitted for either of them to give it to the other [keeper], but they
both divide it and each of the two safeguards his [respective] half.721
If, however, it is indivisible, it is permitted for [only] one of the two
to safeguard it, subject to the permission of the other.722

362
 When the owner of the deposit says to the keeper, “Do not hand
it over to your wife,” but he hands it over [to his wife], he is not held
liable [for any loss incurred].723

If he says to him, “Safeguard it in this room” and he safeguards it

in another room of the [same] house, he is not held liable, but if he
safeguards it in another house, he is held liable [for any loss].724

363
 ‘ĀRIYAH – LOAN (OF T HE USE OF A
COMMODITY)

Loan [of the use of commodities]725 is permitted and that is to

vest [someone] with the ownership of [their] uses without a
consideration.

It is concluded when someone says:

1. “I lend you and I feed you [from the produce of ] this land,”
2. “I bestow on you this garment,”
“I mount you on this [riding] animal” – when, by that, he does
3.
not intend to gift,726
4. “I make this slave serve you,”
5. “My house is an abode for you,” or
6. “My house is for you for life (‘umrā) and a residence.”

364
 e lender (mu‘īr) may retract the loan whenever he wants.

e loan is a trust in the possession of the borrower (musta‘īr); if

it perishes without transgression, the borrower is not liable.727

e borrower may not lease out that which he has borrowed.

us, if he does lease it and it perishes, he is liable. He may lend it
[to someone else] when the borrowed item (musta‘ār) is of such a
nature that it does not alter by the changing of the user.

e loan of dirhams, dinars, measured [items] and weighed

[items] is a [monetary] loan (qarḍ).728

When someone borrows some land so that he may build upon it,
or plant in it, it is permitted, and the lender may take it back and
compel [the borrower] to demolish the building and [remove] the
plants.

365
 If [the lender] had not stipulated a time for the loan, there is no
liability against him, but if he had stipulated a time for the loan and
takes it back before the [stipulated] time, the lender is liable729 to the
borrower for whatever loss the building and the plants incur due to
their demolition and removal.

e remuneration (ujrah) for returning the loan is upon the

borrower,730 the remuneration for returning a leased item is upon the
lessor, the remuneration for returning a usurped item is upon the
usurper and the remuneration for returning a deposited item is upon
the person with whom it is deposited.

When someone borrows a [riding] animal and returns it to the

stable of its owner, and it perishes, [the borrower] is not liable, and
[likewise] if he borrows an item and returns it to the house of the
owner but does not hand it to him, he is not liable, but if he returns a
deposit to the house of the owner and does not submit it to [the
person who entrusted it to him], he is liable.

366
And Allah knows best.

367
 LAQĪṬ – FOUNDLINGS

e foundling is free731 and his expenditure is from the treasury

(bayt al-māl).

If a man finds him, then no-one else will have [the right] to take
him from the possession of [the finder]. en, if someone claims him
to be his son, his saying is the [legally decisive] statement, [together]
with his oath, [but] if two men claim him and one of the two
describes a mark on his body, then he has more right to him.732

If he is found in one of the Muslims’ cities, or in one of their

villages, and a dhimmī claims him to be his son, the lineage of [the
foundling] from him is established, and he is [deemed to be] a
Muslim [as against the dhimmī], but if he is found in a village of the

368
dhimmīs, in a synagogue or a church, [then] he is [deemed to be] a
dhimmī.

Whoever claims the foundling to be his slave [or his slave-

woman], it is not accepted from him, and he is free, and if a slave
claims him to be his son, his lineage from him is established but he is
free.

If goods are found with the foundling, tied to him, then they are
his.

e one who finds him (multaqiṭ) is not permitted to marry [him

or her] off,733 and neither [is he permitted] to transact with his
property.

It is permitted to take possession of gifts on his behalf, and [it is

permitted] to submit him to a trade and to hire him out for work.

369
 LUQṬAH – FOUND PROPERTY

Found property (luqṭah) is a trust in the hands of the finder

(multaqiṭ); if he takes a witness that he is taking it in order to
preserve it and to return it to its owner.

If it is [worth] less than ten dirhams, then he publicises it for a

few days,734 but if it is [worth] more, [then] he publicises it for a
whole year.

If the owner [of the found property] arrives, [it is good],

otherwise [the finder] may give it away in charity. If, however, its
owner does turn up but [the finder] has given it in charity, then [the
owner] has an option:
1. If he wants, he may give effect to the charity,735 or
2. If he wants, he may charge the finder.736

370
 e taking [into protective custody] (luqṭah) of goats, cows and
camels is permitted.737 If the finder spends on them without the
authorisation of the judge (ḥākim), then that is a donation, but if he
spends [on them] with his authorisation, then that is a debt upon its
owner.

When this [case of finding the animal] is raised with the judge
(ḥākim), he looks into it:
If there is a benefit in the animal, he hires it on lease738 and
1.
spends upon it from its remuneration,
If there is no benefit in it, and he fears that expenditure will
2. consume its value, the judge (ḥākim) sells it and orders the
protection of its payment.

If expenditure upon it is better, [the judge (ḥākim)] authorises

that and he makes the expenses a debt against its owner. So, when its
owner appears, the finder may deny him [the animal] until [the
finder] receives the expenses [from the owner].

371
 Property found outside of the Ḥaram739 and inside the Ḥaram are
[deemed] the same.

When a person appears and claims that the found property is his,
it is not given to him until he produces evidence. If he describes a
[distinguishing] mark upon it then it is lawful for the finder to give it
to him, but he is not compelled to do that as a judgement.

One should not give found property in charity to a wealthy

person.

If the finder is wealthy, it is not permitted for him to benefit from

it, but if he is poor, then there is no objection to him benefitting740
from it. If he is without need it is permissible for him to give it as
ṣadaqah to his father, son or wife if they are poor.

372
 KHUNTHĀ – HERMAPHRODITES

If a newly-born has a vulva as well as a penis, then it is a

hermaphrodite.

If he urinates from the penis, then he is a boy, but if he urinates

from the vulva, then he is a female.741 If, however, he urinates from
both, and the urine comes first from either of the two, it is attributed
to the one that it comes first from in either of the two. If it comes out
of both simultaneously, then the majority is not taken into account,
according to Abū Ḥanīfah, may Allah have mercy on him, but
they,742 may Allah have mercy on them, said that it is attributed to
the one of the two which has the majority of the urine discharge.743

373
 When the hermaphrodite reaches majority and a beard emerges,
or he [sexually] couples with a woman, then he is a man [in legal
terms].

If, however:
1. His744 bust swells, like the bosom of a woman,
2. Milk gathers in his breasts,
3. He experiences menstruation,
4. He becomes pregnant, or
[Sexual] coupling with him becomes possible via the vulva,
5.
then he is a woman.

If none of these features appear in him, then he is an

indistinguishable hermaphrodite (khunthā mushkil).

When he stands behind the Imam, he should stand between the

rows of the men and the women.745

374
 A slave-woman is purchased from his wealth to circumcise him,
[that is] if he has any wealth, but if he does not have any wealth, the
Imam purchases the slave-woman for him from the treasury. When
she has circumcised him, [the Imam] should sell her and return the
payment for her to the treasury.

If his father dies, and leaves behind a boy and a hermaphrodite,

then the property is [divided] between the two, according to Abū
Ḥanīfah, may Allah have mercy on him, into three shares; two shares
are for the boy and one share for the hermaphrodite; [the
hermaphrodite] is a woman, according to Abū Ḥanīfah, may Allah
have mercy on him, in the [case of ] inheritance, unless the contrary
is proven.

ey,746 may Allah have mercy on them, however, said that the
hermaphrodite has a half of the inheritance of the male, and a half of
the inheritance of the female. at is [also] the verdict of ash-Sha‘bī,
may Allah have mercy on him, but they,747 may Allah have mercy on
them, have differed in the analysis of his verdict.

Abū Yūsuf, may Allah have mercy on him, said that the property
is [divided] between the two into seven shares; four shares for the boy
and three shares for the hermaphrodite.748

375
 Muḥammad, may Allah have mercy on him, said that the
property is [divided] between them into twelve shares; seven shares
for the boy and five for the hermaphrodite.749

376
 MAFQŪD – MISSING PERSONS

When a man disappears750 and his whereabouts is not known,

and it is not known whether he is alive or dead, the judge appoints
someone to safeguard his property, to oversee it and receive [for him]
his rights, spend on his wife and [on] his minor children from his
wealth.

[e judge] does not cause separation between him and his wife
[by divorce].

When one hundred and twenty years have passed from the day he
was born, we adjudicate his death;751 his wife performs the ‘iddah
(waiting period before she may remarry), his property is distributed

377
amongst his heirs who are present752 at that time, but whosoever of
them has died prior to that753 does not inherit anything from that
[property of the missing person] and the missing person does not
inherit from anyone who dies during his state of being lost.

378
 IBĀQ – FUGITIVE SLAVES

When a slave runs away and a man returns him to his master
from a distance of three days away or more, then he is due from [the
master] his reward and that is forty dirhams.

If [the man] returned him from less than that [distance], then it is
according to that.754

If the value of [the fugitive slave] is less than forty dirhams, then
it is decided for him according to his value minus one dirham.755

If [the slave] had run away from [the same person] who returned
him, then there is nothing due from [that person], but there is no
reward for him [either].

379
 One ought to have a witness when he captures [the fugitive slave]
that he has seized him for the purpose of returning him to his master.

If the fugitive slave is collateral [in a contract of pledge], then the

reward is due from the pledgee.756

380
IḤYĀ AL-MAWĀT – REVIVIFYING BARREN
LAND

Mawāt is that piece of land from which benefit is not derived due
to:
1. e cessation of the water [supply] to it,
2. Water overwhelming it, or
Whatever resembles that of such things that prevent
3.
cultivation.757

So, whatever of that [barren land]:

1. Customarily had no owner, or
It is owned under Islam and its owner is not specifically
2.
known, and

381
 3. [It is] far from the village such that when a person stands in
the furthest part of the population and yells, his voice is not
heard in it,
that [land] is mawāt.

Whoever revives [barren land] with the permission of the

Imam758 owns it, but if he revives it without the permission of [the
Imam], he does not own it, according to Abū Ḥanīfah, may Allah
have mercy on him, but Abū Yūsuf and Muḥammad, may Allah have
mercy on them, said that he owns it.

A dhimmī may acquire ownership of [barren land] by revival [of

it] just in the same way as a Muslim may acquire ownership of it.

Whoever demarcates some land with stones and does not cultivate
it for three years, the Imam takes it from him and gives it to someone
else.759

It is not permitted to revivify that [land] which is close to

inhabited land, and it should be left as pasture for [the animals of ]
the villagers, and as a dump for their harvests.

382
 Whoever digs a well in the wilderness then its precincts are [also]
his. So, if it is for drinking [water] then its precincts are forty cubits
(dhirā‘).760 If it is for irrigation, then its precincts are sixty cubits, and
if it is a spring, then its precincts are five hundred cubits.

Whoever wants to dig a well within the precincts of [that well], is

to be prevented.761

Whatever the [rivers] Euphrates and the Tigris762 leave

[behind],763 and the water deviates from there, then if it is possible
for [the river] to return there, its revivification is not permitted,764
but if its return to that place is not possible, then it is like barren land
(mawāt); if it is not a precinct of an inhabited [piece of land], the one
who revives it with the permission of the Imam, acquires its
ownership.

383
 Whoever has a river765 in the land of someone else, then it has no
precinct,766 according to Abū Ḥanīfah, may Allah have mercy on
him, unless there is evidence for him of that [precinct], but according
to them,767 may Allah have mercy on them, the jetty of the river
upon which he walks and throws its mud is his.768

384
 MA’DHŪN – AUTHORISED SLAVES

When the master authorises his slave with a general authority, his
transacting in all trades is permitted, and he may buy, sell, give a
pledge and take a pledge.

If [the master] authorised him for one type [of transaction] from
them and no other, then he is [still] authorised in all of them. If he
authorises him in one particular thing, then he is not authorised [in
general].

e acknowledgement of the authorised slave (ma’dhūn) regarding

debts and usurped [goods] is permitted.

385
 He may not:
1. Get married, nor
2. Can he marry off his slaves,769
3. Write a contract for a slave to purchase his freedom (kitābah),
4. Free [a slave] against property,
5. Give a gift [in return] for a consideration or without a
consideration, unless he gifts a small amount of food, or he hosts
someone who fed him.

His debts [remain] attached to his slavehood, for which he may be

sold for the sake of the creditors – unless the master ransoms him –
and his price is divided amongst them according to [their] shares. 770

If anything of his debts is left over, it is demanded from him after

his being set free. If limits are set on his competence [by his master],
he does not become [legally] limited (maḥjūr ‘alayhi) until the
limitation becomes apparent among the people of the market.771

If the master dies, becomes insane or moves to enemy territory as

an apostate, the ma’dhūn’s legal competence has a limit placed on it.

If the ma’dhūn runs away, his legal competence has a limit placed
on it.

386
 When [the ma’dhūn’s] legal competence has a limit placed on it,
then his acknowledgement is permitted concerning whatever is in his
possession, according to Abū Ḥanīfah, may Allah have mercy on
him.772 ey,773 may Allah have mercy on them, however, said that
his acknowledgement is not valid.

When there are debts binding upon him, which overwhelm his
property and his slavehood,774 the master does not acquire ownership
of what is in his possession.775

If [the master] sets the slaves of [the ma’dhūn] free, they are not
[legally] free,776 according to Abū Ḥanīfah, may Allah have mercy on
him, but they,777 may Allah have mercy on them, said that [the
master] acquires ownership of what is in the possession of [the
ma’dhūn].

It is permitted for the ma’dhūn slave to sell something to the

master according to its customary value (mithl al-qīmah) or more,
but if he sells it at a loss, it is not permitted.

387
 If the master sells something [to his slave] according to the
customary value or less, the sale is permitted, and if he surrenders it
to [the slave] prior to taking possession of the payment, the payment
is void, but it is permitted if [the master] withholds [the object of
sale] in his possession until he receives payment.778

If the master sets the ma’dhūn slave free while he [the slave] owes
debts, his setting free is permitted, but the master is liable for his
value to the creditors, and whatever of the debts remains, the freed
slave is demanded of it.

When a ma’dhūn779 slave-woman gives birth to [the child of ] her

master, that is [enough for] placing a limit on her competence.780

If a child’s guardian authorises a minor to trade, then he is like the

ma’dhūn slave in buying and selling, if he comprehends [the affairs
of ] buying and selling.

388
 MUZĀRA‘AH – CROPSHARING

Abū Ḥanīfah, may Allah have mercy on him, said, “Cropsharing

(muzāra‘ah) for a third or a quarter [portion] is void.” they,781 may
Allah have mercy on them, however, said that it is permitted, and
according to them, it is of four types:
When the land and the seeds belong to one person, and the
1. labour and the oxen belong to another person, cropsharing is
permitted,
If the land belongs to one and the labour, oxen and seeds
2.
belong to the other person, cropsharing is permitted,
3. If the land, the seeds and the oxen belong to one person and

389
 the labour belongs to another person, cropsharing is
permitted,
If the land and the oxen belong to one person and the seeds
4.
and the labour belong to another person, cropsharing is void.

Cropsharing is not valid unless it is for a known duration, and

when the produce is [divided] between both of them jointly. So, if
both of them stipulate that one of them has specified qafīzs, then it is
void, [and] likewise, if they stipulate what [grows on] canals and
irrigation ditches [it is void].782

When cropsharing is valid, the produce is [divided] between them

upon the [stipulated] condition, but there is nothing for the labourer
if the land does not produce anything.

If the cropsharing is invalid, the produce is for the owner of the

seeds. en, if the seeds are from the landowner, the labourer has
remuneration at a customary rate (mithl) not exceeding the amount
of what was stipulated for him of the produce.783

390
 Muḥammad, may Allah have mercy on him, said that he has
remuneration at a customary rate which may reach whatever
[amount] it may reach.

If the seeds are from the labourer, then the landowner has
remuneration at a customary rate.

When the contract of cropsharing is concluded, and the owner of

the seeds ceases to work, he is not compelled, but if the one who is
not the owner of the seeds ceases [to work], the ḥākim compels him
to work.

If one of the two contracting parties dies, then the [contract of ]

cropsharing is void.

When the term of the cropsharing [contract] elapses, and the

crops have not [yet] ripened, the customary [rate of ] payment
according to his share of the land is due upon the cultivator until they
ripen.784

391
 e expenses [spent] on the crops are due from both of them
according to the measure of their shares.

e wages of reaping, threshing, gleaning and winnowing are

upon the both of them, according to their [respective] shares. So, if
they stipulated that [as] a condition in [the contract of ] cropsharing
as [an obligation] upon the labourer, then [the contract of
cropsharing] is void.

392
 MUSĀQĀH – CROPSHARING BY
IRRIGATION

Abū Ḥanīfah, may Allah have mercy on him, said, “Cropsharing

by irrigation (musāqāh) [in exchange] for a portion of the fruits is
void.” ey,785 may Allah have mercy on them, said that it is
permitted when both of them mention a known duration and
nominate a portion of the fruit to be shared.

Musāqāh is permitted in date-palms, trees, grape-vines, vegetables

and aubergines. So, if one gives a date-palm on which there is fruit
for irrigation, and the fruit increases due to the labour, it is
permitted, but if [the fruit] has ceased, [then] it is not permitted.786

When musāqāh becomes invalid, then the labourer is due wages

according to his [customary rate] (mithl).

393
 Musāqāh becomes void by the death [of either party].

[e contract of irrigation] may be rescinded due to [legal]

excuses, just as [the contract of ] lease (ijārah) may be rescinded.

394
 NIKĀḤ – MARRIAGE

e marriage [contract] is concluded with [an] offer and

acceptance, by [using] two statements which express the past
[tense],787 or one of the two [statements] expresses the past [tense]
and the other [expresses] the future [tense], for example, one says,
“Marry [her to] me,”788 and [the other] says, “I have married [her to]
you.”

e marriage of Muslims is not concluded except in the presence

of two male witnesses [who are] free, major, sane Muslims, or one
man and two women, be they upright or not, or [whether] they have
been punished [a ḥadd punishment] for qadhf (wrongful imputation
of unlawful sexual intercourse).

395
 If a Muslim male marries a woman of the People of the Book
living under Muslim governance (dhimmīyyah) with the witnessing
[made] by two of the People of the Book living under Muslim
governance (dhimmīs), it is permitted, according to Abū Ḥanīfah and
Abū Yūsuf, may Allah have mercy on them, but Muḥammad, may
Allah have mercy on him, said that [the marriage] is not permitted
unless one makes two male Muslim witnesses.

Prohibited Categories of Women

It is not lawful for a man to marry his:

1. Mother,
2. His paternal and maternal grandmothers,
3. His daughter,

396
 4. e daughter of his child789 howsoever low,
5. His sister,
6. e daughters of his sister,790
7. His paternal aunt,
8. His maternal aunt,
9. e daughters of his brother,791
e mother of his wife, with whose daughter he has had
10.
sexual intercourse or not had sexual intercourse,792
e daughter of his wife with whom he has had sexual
11. intercourse – be the daughter under his guardianship or
under the guardianship of someone else,
12. e wife of his father,
13. [e wives] of his grandfathers,
14. e wife of his son,
15. [e wives] of his grandsons,
16. His foster mother [who breastfed him], nor
17. His foster sister.

One is not to combine two sisters by marriage, nor in sexual

intercourse by lawful ownership.793

397
 One is not to combine a woman with her paternal aunt, maternal
aunt, the daughter of her sister or the daughter of her brother.
One is not to combine two women in such a way that if either of
the two was a man, it would not be permitted for him to marry the
other.794

ere is no objection for someone to combine a woman with the

daughter of a husband she had before.795

Whoever commits unlawful sexual intercourse (zinā) with a

woman, her mother and her daughter are forbidden to him [in
marriage].

When a man divorces his wife [with] a final divorce (ṭalāq

bā’in),796,797 he is not permitted to marry her sister until her waiting
period (‘iddah) elapses.

It is not permitted for a master to marry his [own] slave-woman,

nor for a free woman [to marry] her [own] slave.798

Marriage to Non-Muslim Women

398
 Marriage to women of the People of the Book (kitābīyāt) is
allowed, but marriage to Magian799 women is not permitted, nor [is
marriage permitted] to idol-worshipping women.

Marriage to Sabian800 women is permitted if they believe in a

prophet and they recognise a [divinely revealed] book. If, however,
they worship the stars and they have no [divinely revealed] book,
[then] marriage to them is not permitted.

It is permitted for men and women in iḥrām to marry801 whilst in

the state of iḥrām.

Virgins (Bikr) and Previously-Married Women

who had Consummated eir Marriages
(ayyib)

e marriage of a free, major, sane woman is concluded with her

consent, even though a guardian does not conclude it [for her],
according to Abū Ḥanīfah, may Allah have mercy on him, be she a
virgin (bikr) or a previously-married woman who had consummated
her marriage (thayyib), but they,802 may Allah have mercy on them,

399
said that it is not concluded [in either case] except with the
permission of a guardian.

It is not permitted for the guardian to compel a sane, major virgin

[to marry]. When the guardian seeks her permission [for marriage],
and she remains silent, giggles or cries without [making] a sound,
then that is [deemed] permission from her, but if she refuses, then he
should not give her in marriage.

When someone seeks permission from a previously-married

woman who had consummated her marriage, then she must give her
consent by speaking.

When her virginity is lost due to jumping, menstruation, a wound

or due to a long period of waiting, then she is [still] under the ruling
of being a virgin.

If her virginity is lost due to unlawful sexual intercourse (zinā),

then she is just like that [a virgin], according to Abū Ḥanīfah, may
Allah have mercy on him, but they,803 may Allah have mercy on

400
them, said that she comes under the ruling of the previously-married
woman who had consummated her marriage.

When a husband says to a virgin, “e [proposal of ] marriage

reached you and you remained silent,” and she replies, “No, on the
contrary, I rejected [the proposal],” then the [decisive] statement is
her statement and there is no oath [to take] from her. An oath is not
taken about marriage, according to Abū Ḥanīfah, may Allah have
mercy on him, but they,804 may Allah have mercy on them, said that
an oath is taken about it.

e marriage contract (nikāḥ) is concluded with the words: nikāḥ

(marriage contract), tazwīj (marriage), tamlīk (ownership), hibah
(gift) and ṣadaqah (charity).

It is not concluded with the words: ijārah (lease), i‘ārah (loan) or

ibāḥah (permissibility).

e marriage of a minor boy and [of ] a minor girl is permitted

when the guardian gives them in marriage, be the minor girl a virgin
or a previously-married woman who had consummated her marriage.

G d (W l )
401
 Guardian (Walī)

e guardian [in marriage] is [of the] consanguine relatives

(‘aṣabah).805

If the father, or grandfather, marries them off, then there is no

option for them after attaining the age of majority, but if someone
other than the father or the grandfather marries them off, then each
one of the two has an option:
1. If he/she wants, he/she may remain in the marriage, or
2. If he/she wants, he/she may repudiate [it].

ere is no [right of ] guardianship for a slave, minor, the insane

nor for the non-Muslim (kāfir) over a Muslim woman.806

Abū Ḥanīfah, may Allah have mercy on him, said that it is

permitted for people other than male relatives to give away in
marriage, such as a sister, mother and maternal aunt.807

402
 Whichever [previously enslaved] woman has no guardian, if the
master who set her free gives her away in marriage, [then] that is
allowed.

When the most closely-related guardian is absent in disconnected

absence, it is permitted for whomever is more remote than him [and
next in proximity] as a relation, to give her away in marriage.

Disconnected absence (ghaybah munqaṭi‘ah) is when one is in a

city which convoys do not reach except [only] once a year.

Suitability (Kafā’ah)

Suitability in marriage is to be reckoned with. us, if a woman

marries someone without equal status [to her], the guardians may
seek separation between the two.

Suitability is taken into account [with regards to] lineage, religion

and wealth – and that is, that he possess the dowry (mahr) and
financial maintenance (nafaqah); and it is also taken into account
[with regards to] skills.808

403
 When a woman marries and she reduces [something] from the
customary dowry [a woman of her standing would receive] (mahr al-
mithl), then the guardians may oppose her, according to Abū
Ḥanīfah, may Allah have mercy on him, until the customary dowry [a
woman of her standing would receive] (mahr al-mithl) is given to her
complete, or [the husband] is separated from her.

When a father gives his minor daughter in marriage and he

reduces [something] from the customary dowry [a woman of her
standing would receive] (mahr al-mithl), or he marries off his minor
son and [that son] increases [the amount] in the dowry of his wife,
then that is permitted for both of them. at is not allowed for
anyone other than the father and the grandfather.

e marriage contract is valid when the dowry is mentioned in it,

and it is [also] valid even if the dowry is not mentioned in it.

Dowry (Mahr)

404
 e minimum [amount] of dowry is ten dirhams. So, if someone
specifies less than ten [dirhams], she has ten [dirhams].809

Whoever specifies the dowry as ten [dirhams] or more, then

whatever has been mentioned is due upon him if he consummates the
marriage810 or if he dies leaving her [as his widow]. If, however, he
divorces her prior to the consummation of the marriage, or [before]
seclusion811 [with her], then she is entitled to a half of what was
mentioned [as dowry].

If he marries her without specifying the [amount of ] dowry for

her, or he marries her on [the condition] that there is no dowry for
her, then she is entitled to the customary dowry [a woman of her
standing would receive] if he had consummated the marriage or died
leaving her [as his widow]. If, however, he divorces her prior to
having sexual intercourse with her, or [adopting] seclusion [with her],
then she is entitled to a gift of consolation (mut‘ah), and that is three
garments according to the attire [a woman of her standing would
wear], and they are:
1. A shirt,
2. A head-covering, and
3. A large outer wrapper.

405
 If a Muslim marries her for wine or swine, the marriage contract
is permitted, but she is entitled to the customary dowry [a woman of
her standing would receive].

If he marries her without specifying any dowry, and then both of

them agree upon fixing the dowry, that is hers if he consummates the
marriage or dies leaving her [as his widow]. If, however, he divorces
her prior to sexual intercourse or [adopting] seclusion with her, then
she is entitled [only] to a gift of consolation (mut‘ah).

If someone increases the [amount of ] dowry after the conclusion

[of the marriage contract], the increment is binding upon him if he
consummates the marriage or dies leaving her [as his widow]. e
increment lapses due to divorce prior to sexual intercourse.

If she reduces some of the dowry, the reduction is valid.

406
 When the husband is secluded with his wife and there is nothing
to prevent sexual intercourse, and then he divorces her, she is entitled
to her full dowry [and the waiting period (‘iddah) is due upon her].

If either of the two are:

1. Ill,
2. Fasting during Ramadan,
3. In iḥrām for ḥajj or ‘umrah, or
4. She is menstruating,
then it is not a valid seclusion.812 If he were to divorce her, then a
half of the dowry is required.

When a man whose genitals are amputated (majbūb) secludes

himself with his wife, and then divorces her, she is entitled to the full
dowry, according to Abū Ḥanīfah, may Allah have mercy on him.

A gift of consolation (mut‘ah) is recommended for every divorcée

(muṭallaqah), except for one type of divorcée, and that is she whom
someone divorces prior to consummation [of the marriage] without
specifying the [amount of ] her dowry.813

407
 When a man marries off his daughter on [the condition] that the
[other] man will marry his sister or his daughter to him, so that one
of the contracts [of marriage] becomes a consideration for the other
[contract], then both contracts are valid, and each of the two [brides]
is entitled to the customary dowry [a woman of her standing would
receive].

It is permitted if a free man marries a woman on the condition of

his service [to her] for a year, or on the condition of teaching the
Qur’ān [to her], and she is [still] entitled to the customary dowry [a
woman of her standing would receive].

It is valid if a slave, with the permission of his master, marries a

free woman on the condition of his service [to her] for a year, and
thus, she is entitled to that service [from him].

When, in [the case of an] insane woman, her father and her son
are both present, then the guardian for her marriage contract is her

408
son, according to Abū Ḥanīfah and Abū Yūsuf, may Allah have
mercy on them, but Muḥammad, may Allah have mercy on him, said
that [the guardian is] her father.

e marriage contract of a slave or a slave-woman is not allowed

except with the permission of her master.

When a slave marries with the permission of his master, then the
dowry is a debt upon him for which he [may be] sold.814

When a master gives away his slave-woman in marriage, he is not

liable to lodge her in a house for the husband and she shall continue
to serve her master. It is said to the husband, “Whenever you find [an
opportunity] with her, you may have sexual intercourse with her.”

If someone marries a woman for a thousand dirhams on the

condition that he will not take her out of the city, or on the condition
that he will not marry another woman [during their marriage], and
then, if he fulfils the condition, she is entitled to the specified
[dowry]. [But] if he does marry [during their marriage], or [if he]
does take her out of the city, then she is entitled to the customary
dowry [a woman of her standing would receive].

409
 If someone marries her for an unspecified animal,815 the
nomination [of the unspecified animal] is valid and she is entitled to
an average [animal] within that [category], and the husband has an
option:
1. If he wants, he may give her that, or
2. If he wants, he may give her its value.

If he marries her for an unspecified garment, then she is entitled

to the customary dowry [a woman of her standing would receive].

Temporary marriage (mut‘ah)816 and marriage of a set duration

(muwaqqat)817 are void.

e marrying off of a slave and slave-woman without the

permission of their master is suspended:
1. If the master permits it, it is valid, and
2. If he refuses it, it is void.

Likewise, if a man marries off a woman or a man, without their

consent [the marriage is suspended].818

410
 It is permitted for the son of the paternal uncle to marry the
[minor] daughter of his paternal uncle to himself.819

When a woman authorises a man to marry her to himself, and he

concludes [it] in the presence of two male witnesses, it is valid.

When the guardian takes responsibility of the dowry for the

woman, his [taking] responsibility is valid, and the woman has the
option of demanding [the dowry] from her husband or [from] her
guardian.820

When the judge orders the separation of the husband and the wife
in an invalid marriage prior to consummation, and likewise, after
seclusion, then she is not entitled to any dowry.

And if he has had sexual intercourse with her, then she is entitled
to the customary dowry [a woman of her standing would receive]
which does not exceed the specified [dowry], she is liable to the

411
waiting period (‘iddah),821 and the lineage of her child [born of that
wedlock] is established [as being] from him.

e customary dowry [a woman of her standing would receive] is

determined by [the dowry of ] her sisters, her paternal aunts and the
daughters of her paternal uncle,822 and it is not determined by [the
dowry of ] her mother and her maternal aunt, if they are not from her
tribe.823

For the customary dowry [a woman of her standing would

receive], it is taken into account whether the two women are equal in
terms of age, beauty, wealth, intellect, religion, lineage, land and
epoch.824

Miscellaneous Issues Pertaining to Marriage

It is permitted to marry a slave-woman, whether she is a

Muslimah or a woman of the People of the Book (kitābiyyah).

It is not permitted to marry a slave-woman in addition to [the

existing marriage to] a free woman,825 but it is permitted to marry a
free woman with her.826

412
 e free man is allowed to marry four free women and slave-
women, but he is not permitted to marry more than that.827

e slave is not allowed to marry more than two women [at any
one time].

If the free man divorces one of the four [wives] with a final
divorce, it is not permitted for him to marry [another] fourth [wife]
until [the divorcée] completes her waiting period (‘iddah).

When a slave-woman is married away by her master [and] then is

set free, she has an option,828 irrespective of whether her husband is a
free man or a slave, and likewise [is the case with] the slave-woman
who has contracted to purchase her freedom (mukātabah).

If a slave-woman gets married without the permission of her

master, [and] then she is set free, the marriage contract is valid and
she has no option.829

413
 Whoever marries two women in a single contract [of marriage],
such that one of the two women is not lawful for him [to marry],
then the marriage with the one whose marriage is lawful for him is
valid and the marriage with the other [woman] is void.

When the wife has a blemish, her husband has no option.830

When the husband is [afflicted] with insanity, leprosy or

leucoderma, then the wife has no option [to discontinue the
marriage], according to Abū Ḥanīfah and Abū Yūsuf, may Allah have
mercy on them, but Muḥammad, may Allah have mercy on him, said
that she does have the option.

When the husband is impotent, the ḥākim issues him a deadline

of a year. en, if he gains [potency] within this period, she has no
option [of discontinuing the marriage]; otherwise [the ḥākim] is to
declare separation between them, if the wife demands that.

414
 [is] separation is a final divorce,831 and she is entitled to the full
dowry if [the husband] had been in seclusion with her.

If his genitals are amputated (majbūb), the judge declares

separation between the two immediately, and he does not allow [the
husband] any time [to disprove the amputation]. e castrated
[husband] will be given a deadline, in the same way the impotent
[husband] is given a deadline.

When a woman accepts Islam and her husband [remains] a

disbeliever, the judge offers him [to embrace] Islam. en, if he
accepts Islam, then she remains his wife, but if he refuses Islam, [the
judge] declares separation between the two, and that is a final
divorce, according to Abū Ḥanīfah and Muḥammad, may Allah have
mercy on them, but Abū Yūsuf, may Allah have mercy on him, said
that it is a separation without divorce.

If the husband accepts Islam while married to a Magian woman,

he offers Islam to her. en, if she accepts Islam she remains his wife,

415
but if she refuses, the judge declares separation between the two, and
the separation does not amount to divorce.

If [the husband] had consummated the marriage with her, she is

entitled to the full dowry, but if he had not consummated the
marriage, there is no dowry for her.

When a woman accepts Islam in enemy territory, her separation

does not take place until she has menstruated three periods.832

When she has menstruated [thrice], she becomes finally divorced

(bā’inah) from her husband.833

When the husband of a woman of the People of the Book

(kitābiyyah) accepts Islam, they [remain] married.

When one of the spouses comes over to us [Muslims] from

enemy territory as a Muslim, then separation by divorce (baynūnah)
occurs between the two.

416
 If either of the two is taken prisoner-of-war, then separation by
divorce takes place between the two, but if both of them are taken
prisoners-of-war together, then separation by divorce does not take
place.

When a woman comes over to us [Muslims] as an emigrant, it is

permitted for her to marry immediately, and according to Abū
Ḥanīfah, may Allah have mercy on him, there is no waiting period
(‘iddah) upon her, but if she is pregnant, then she is not to marry
until she gives birth.

When one of the spouses leaves Islam as an apostate, then

separation takes place between the two, and the separation between
them will be without divorce.

If it was the husband who became apostate, and he had

consummated the marriage with her, then she is entitled to the full
dowry, but if he had not consummated marriage with her, then she is
entitled to half the dowry.

417
 If it is she who became apostate, and if [the apostasy] was before
consummation of the marriage, then there is no dowry for her, but if
the apostasy took place after consummation of the marriage, then she
is entitled to the full dowry.

If both [of the spouses] become apostates together, then later

accepted Islam together, they remain married.

It is not allowed for an apostate man to marry a Muslim woman,

an apostate woman or a disbelieving woman,834 and likewise for an
apostate woman, neither is a Muslim man to marry her, nor a
disbeliever nor an apostate man.

When either of the spouses is a Muslim, then the child is on their

religion,835 and likewise, if either of the two accepts Islam and has a
minor child, their child becomes Muslim due to their conversion to
Islam.

If one of the parents is one of the People of the Book and the
other is a Magian, the child is [also] one of the People of the

418
Book.836

When a disbeliever marries without witnesses, or during the

waiting period (‘iddah) of a disbeliever, and that is permitted in his
religion, then later both of them convert to Islam, they remain
married.837

If a Magian marries his mother or his daughter, then later, both of

them become Muslims, they are separated.838

If a man has two wives who are free women, then he ought to
deal justly with both of them in the apportioning [of time], whether
both of them were virgins or women who had been previously
married, or if one of the two is a virgin and the other is a previously-
married woman.

If one of the two is a free woman and the other is a slave-woman,

then the free woman is entitled to two-thirds [of the time] and the
slave-woman is entitled to a third.

419
 ey have no right to the apportionment [of time and provision]
during the state of travel.839

e husband may travel with whomsoever of them he wishes, and

it is better that he draw lots between them and travel with the one
whose lot emerges.

If one of the wives consents to relinquish her [right of ]

distribution [of time] in favour of another wife it is permitted, and
she has a right to retract that [consent].

420
 RAḌĀ‘ – SUCKLING

A little suckling or a lot, if it occurs during the period of

breastfeeding, prohibition [of marriage of children suckled by the
same woman] is attached to it.840

According to Abū Ḥanīfah, may Allah have mercy on him, the

period for suckling is thirty months,841 whereas according to
them,842 may Allah have mercy on them, it is two years.843

When the period for suckling elapses, the ruling of prohibition is

not attached to the suckling.844

421
 Every [person] becomes prohibited [for marriage] due to suckling,
who is prohibited due to lineage,845 except the mother of his sister
through suckling, for it is permitted for him to marry her, but it is
not permitted for him to marry the mother of his biological sister,
and the sister of his son-through-suckling, it is permitted for him to
marry her, but it is not permitted for him to marry the sister of his
biological son.

It is not permitted for someone to marry the wife of his son-

through-suckling, just as it is not permitted for him to marry the wife
of his biological son.

Prohibition is [also] attached to the milk engendered by the one

who sires the woman’s children (laban al-faḥl), which is when a
woman nurses a female infant, then this female infant becomes
prohibited to the husband [of the feeding woman], to his fathers and
his sons, and the husband, due to whom milk had come [into her
breasts, himself ] becomes a father to the female nursling.846

It is permitted for a man to marry the sister of his brother-

through-suckling, just as it is permitted for him to marry the sister of

422
his biological brother,847 and that is the same as the brother from the
father’s side when he848 has a sister from his mother’s side, it is
permissible for his brother from the father’s side to marry her.849

Every two infants who came together on the breast of one

woman850 are neither of them permitted to marry the other.851

It is not permitted for the woman who has been suckled to marry
any male child of the woman who suckled her.852

e male who has been suckled is not to marry the sister of the
husband of the woman who nursed him, because she is his paternal
foster aunt [by milk relationship].

When the milk mixes with water and the milk is predominant,
prohibition is attached to it, but if the water is predominant, [then]
prohibition is not attached to it.853

423
 When [the milk] mixes with food, prohibition is not attached to
it, even though the milk is predominant, according to Abū Ḥanīfah,
may Allah have mercy on him, but they,854 may Allah have mercy on
them, said that prohibition is attached to it.

When it mixes with medicine and the milk is predominant,

prohibition is attached to it.

When milk is extracted from a woman after her death and it is

dripped into [the throat of ] the child, prohibition is attached to it.855

When the milk of a woman mixes with sheep or goat’s milk and
the milk of the woman is predominant, then prohibition is attached
to it, but if the sheep or goat’s milk is predominant, then prohibition
is not attached to it.

424
 When the milk of two women mixes, prohibition is attached to
the one of the two whose [milk] was more, according to Abū Ḥanīfah
and Abū Yūsuf, may Allah have mercy on them. Muḥammad, may
Allah have mercy on him, however, said that prohibition is attached
to both [of them].856

When milk is produced by a virgin and she nurses an infant, then

prohibition is attached to it.

When milk is produced by a man and he feeds it to an infant,

prohibition is not attached to it.857

When two infants drink from the milk of one [and the same]
sheep or goat, there is no suckling [relationship] between them.858

When a man marries a minor girl859 and an adult woman, and the
adult woman breastfeeds the minor girl [after the marriage], both are
prohibited to the husband.860

425
 If he had not consummated marriage with the adult woman, she
has no dowry, and the minor girl is entitled to a half of the dowry.

e husband has recourse to the adult woman for [the return of

the half dowry] if she had intended to invalidate [their marriage], but
if she had not intended [the invalidation], then she is not liable for
anything.

e testimony of women in [the case of ] suckling is not accepted

individually;861 it is only reliably established with the testimony of
two men, or one man and two women.

426
 ṬALĀQ – DIVORCE

Kinds of Divorce

Divorce is of three types:

1. e best [form of ] divorce (aḥsan aṭ-ṭalāq),
862
2. Sunnah form of divorce (ṭalāq as-sunnah), and
863
3. Innovated divorce (ṭalāq al-bid‘ah).

e best form of divorce is for a man to divorce his wife with a

single pronouncement of divorce during one period of purity (ṭuhr) in
which he does not have sexual intercourse with her and [for him to]
leave864 her until her ‘iddah passes.

e sunnah form of divorce is that the woman whose marriage

has been consummated, is divorced thrice in three [separate] periods
of purity.

427
 e innovated form of divorce is that one divorces her thrice in
one statement, or thrice in one period of purity. If he does that, the
divorce takes effect and his wife becomes irrevocably divorced
(bā’inah)865 from him, and he has been disobedient.866

e sunnah form of divorce is of two types:

1. Sunnah according to time, and

2. Sunnah according to the number [of pronouncements of

divorce].

In the sunnah [divorce] according to the number [of

pronouncements], the woman with whom marriage has been
consummated and the woman with whom marriage has not been
consummated are both equal.

Sunnah according to time is established only in respect of the

woman with whom marriage has been consummated, and that is
when he divorces her once in the period of purity867 in which he does
not have sexual intercourse868 with her, and [with regards to] the

428
woman whose marriage has not been consummated, [the sunnah is]
that he may divorce her in the period of purity or menstruation.

When the woman does not menstruate due to her minority [age]
or old age, and he wants to divorce her according to the sunnah, he
should divorce her once.

When a month passes, he divorces her again, and when a month

passes [again], he divorces her another [time].

It is permitted for him to divorce her and not create a gap in time
between having sexual intercourse with her and her divorce.869

e divorce of a pregnant woman following sexual intercourse is

allowed. One should divorce her according to the sunnah, thrice,
creating a gap of a month between every two pronouncements of
divorce, according to Abū Ḥanīfah and Abū Yūsuf, may Allah have
mercy on them. Muḥammad, may Allah have mercy on him,
however, said that he should not divorce her according to the sunnah,
but [only] once.

429
 When the man divorces his wife during menstruation, the divorce
is effectual. It is recommended [however] for him to take her back.
en, when she becomes pure and menstruates, and [again] becomes
pure, then he has an option:
1. If he wants, he may divorce her, and
870
2. If he wants, he may retain her.

Divorce is effectual from every husband who is sane and major,

and the divorce of a minor, insane or sleeping husband does not take
effect.

When a slave marries with the permission of his master and he

pronounces divorce, the divorce takes effect, but the divorce
[pronounced] by his master against the wife of the slave does not take
effect.

Divorce is of two kinds:

1. Explicit (ṣarīḥ), and

430
 2. Implicit (kināyah).

Explicit Divorce
Explicit [divorce] is [like] his saying:
1. “You are divorced,”

2. “… [you are] a divorced woman,” and

3. “I have divorced you.”

Revocable divorce (ṭalāq raj‘ī) takes effect by it.

Only one [divorce] takes place, even if he had intended more than
that [single divorce], and with these words [of expression], an
intention is not required.871

His saying:
1. “ Anti aṭ-ṭalāq – You are the [embodiment of ] divorce,”

2. “ Anti ṭāliq aṭ-ṭalāq – You are divorced with the divorce,” or

3. “ Anti ṭāliqun ṭalāqan – You are divorced with a divorce,”

431
 then if he has no [specific] intention, then it is one revocable
[divorce], but if he had intended two [pronouncements of divorce],
only one takes effect. If he intended three [pronouncements of
divorce] by it, [then all] three [apply].872

Implicit Divorce

e second types are the implied [methods]. Divorce only takes

effect by them with intention or with immediate indication.

is [method of pronouncing divorce] is of two types:

A. ere are three wordings for it by which revocable divorce
takes place and only one [pronouncement of divorce] occurs, and that
is [by] someone saying:
1. “I‘taddī – Enter the waiting period,”

2. “Istabri’ī raḥimaki – Seek to keep your womb free,” or

3. “ Anti wāḥidah – You are single.”

B. [With regards to] all other implied [methods],873 when one

intends divorce with them, then [only] one final [divorce takes place],
but if he intends [all] three, then [all] three take effect.874

432
 If he intends two [pronouncements of divorce], then [only] one
occurs, and that is like his saying:
1. “You are separate [from me],”

2. “Decidedly,”

3. “…severed from me,”

4. “…ḥarām [for me],”

5. “Your rope is on your neck,”

6. “Join your relatives,”

7. “[You are] set free,”

8. “[You are] free,”

9. “I give you to your relatives,”

10. “I abandon you,”

11. “Choose!,”

12. “I separate from you,”

13. “You are a free woman,”

14. “Veil yourself,”

15. “Cover yourself,”

433
 16. “Become a stranger,” and

17. “Seek out husbands.”

us, if he has no intention of divorce, divorce does not take place

with these wordings, unless [these two types of implied
pronouncements] are [pronounced] in a discussion of divorce,875 then
divorce is established by them in a legal ruling. It does not, however,
occur for what is between him and between Allah the High, unless
he intends it.876

If [these two types of implied pronouncements] are not in a

discussion of divorce but they are in [a state of ] anger and quarrel,
divorce occurs with every wording which is not meant for insult and
abuse.877

It does not occur by that with which insult and abuse are aimed,
unless he intends [divorce].

434
 When someone describes divorce with something extra, it is [one]
final [divorce], as when he says:
1. “You are divorced finally,”

2. “You are divorced the most extreme [form of ] divorce,”

3. “…the worst [form of ] divorce,”

4. “…the divorce of Satan,”

5. “…innovated [bid‘ah] divorce,”

6. “…like [the size of ] the mountain,” or

7. “…a roomful [of divorce].”

When someone attaches the divorce to her entirety, or to [a part]

which may be understood as [her] entirety, [then] divorce takes
effect, for example that he says:
1. “ Anti ṭāliq (You are divorced),”

2. “Taqabatuki ṭāliq (Your neck is divorced),”

3. “‘Unuquki ṭāliq (Your neck is divorced),”

4. “Tūḥuki …(Your soul…),”

5. “Badanuki… (Your body…),”

6. “Jasaduki… (Your torso…),”

7. “Farjuki… (Your vagina…),” or

435
 8. “Wajhuki… (Your face…).”

[And] likewise, if he divorces an indivisible part878 of her, for

example that he says:
9. “A half of you…,” or

10. “A third of you is divorced,” [then divorce takes effect].

If, however, he says:

1. “Your hand…,” or

2. “Your foot is divorced,”

[then] divorce does not take effect.

If he divorces her a half of a pronouncement of divorce or a third

of a pronouncement of divorce, then [that] is one [full]
pronouncement of divorce.

e divorce of someone who is coerced and someone who is

intoxicated takes effect.

436
 When someone [after saying or doing something] says, “By this, I
intended divorce,” the divorce is effective.

e divorce by a mute through indication takes effect.879

When someone attributes divorce to the marriage, it takes effect

[immediately] following the marriage. For example, someone says, “If
I marry you, then you are divorced,” or he says, “Every woman whom
I marry, she is divorced [by me].”

When he attaches it to a condition, it takes effect following the

[fulfilment of the] condition. For example, someone says to his wife,
“If you enter the house, then you are divorced.”

e attaching of divorce [to a condition or event] is not valid

unless the one taking the oath is the owner, or he attributes it to his
ownership. us, if he says to a female non-relative, “If you enter the
house then you are divorced,” [and] thereafter, he marries her and she
enters the house, she is not divorced.880

437
 e words [used] for conditions are:
1. In (if ),

2. Idhā (when),

3. Idhā-mā (whenever),

4. Kullu (every/each),

5. Kullamā (whenever),

6. Matā (when),

7. Matā-mā (whenever).

us, if a condition is found in any of these words, the oath is

released and divorce takes place, except with [the word] kullamā,
[wherein] divorce repeats with the repetition of the [fulfilment of
the] condition, until [all] three pronouncements of divorce have
taken place.

If he marries her after that, and the [fulfilment of the] condition

repeats, nothing takes effect.881

438
 e loss of ownership after [swearing] the oath does not nullify
[the oath]. us, if the condition is found in the ownership, the oath
is fulfilled and divorce takes place,882 but if it is found in non-
ownership, the condition is fulfilled but nothing takes effect.883

If both [spouses] differ with regards to the existence of a

condition, then the [legally decisive] statement in it is the saying of
the husband, unless the woman produces evidence.

If the condition cannot be known except from her side, then the
[legally decisive] statement is her saying in her own favour. For
example, he says, “If you menstruate, then you are divorced,” and she
says, “I am menstruating,” [then] she is divorced.

If he says to her, “If you menstruate, then you are divorced and so-
and-so [a woman] with you,” and she says, “I am menstruating,”
[then] she is divorced, but so-and-so is not divorced.

439
 When he says to her, “When you menstruate, you are divorced,”
and then she sees blood, the divorce does not take effect until the
bleeding continues for three days. When three days are complete, we
declare the effect of the divorce from the moment she began her
menstrual period.

If he says to her, “When you menstruate for one period, you are
divorced,” she is not divorced until she becomes pure of her
menstruation.884

e [irrevocable] divorce of a slave-woman is two

pronouncements of divorce, and her waiting period (‘iddah) is two
menstrual periods, be her husband a free man or a slave, and the
divorce of a free woman is three [pronouncements of divorce], be her
husband a free man or a slave.

When a man divorces his wife with three [pronouncements of

divorce] prior to consummating the marriage, they take effect on her.

440
 If he separates the divorce,885 the first one is final and the second
and third do not take place together.886

If he says to her, “You are divorced once and once,” only one
[pronouncement of divorce] takes effect on her.

If he says to her, “You are divorced once before once,” then one
[pronouncement of divorce] takes effect on her.

If he says to her, “…once before which is one,” [then] two

pronouncements of divorce take effect upon her.

If he says to her, “…once, after which is one,” [then only] one

[pronouncement of divorce] takes place.

If he says to her, “You are divorced once after once,” “…with

once,” or “… with that one, once,” [then] two [pronouncements of
divorce] take effect.

441
 If he says to her, “If you enter the house, then you are divorced
once and once,” then she enters the house, according to Abū Ḥanīfah,
may Allah have mercy on him, only one [pronouncement of divorce]
takes effect upon her, but they,887 may Allah have mercy on them,
said that two [pronouncements of divorce] take place.

If he says to her, “You are divorced at Makkah,” then she is

divorced immediately in all lands, and likewise when he says to her,
“You are divorced in the house.”

If he says to her, “You are divorced when you enter Makkah,” she
is not [effectively] divorced until she enters Makkah.

If he says, “You are divorced tomorrow,” the divorce takes effect

upon her with the rising of the true dawn.

Delegation (Tafwīḍ) of Divorce

If he says to his wife, “Choose yourself,” and by that he intends

divorce, or he says to her, “Divorce yourself,” then she may divorce
herself as long as she is in that session of hers. If she stands [and

442
moves away] from it, or she begins doing something else, the affair
leaves her hands.

If she chooses herself in response to his saying “Choose yourself,”

then one final [pronouncement of divorce] takes place, but not three,
even though the husband may have intended that.

It is important to mention the [word] nafs (self ) in his statement,

or in her statement.

If she divorces herself in response to his saying “Divorce yourself,”

then it is one revocable [pronouncement of divorce].

If she divorces herself thrice, and the husband had intended that,
[all three pronouncements of divorce] take effect on her.

If he says to her, “Divorce yourself whenever you want,” then she

may divorce herself during that session and [also] after it.

And when he says to another man, “Divorce my wife,” then [the

other man] may divorce her during the session and [also] after it.

443
 If he says [to the man], “Divorce her if you want,” then [the
delegate] may only divorce her during the sitting.

If he says to her, “If you love me…,” or “…hate me, then you are
divorced,” and she replies, “I love you,” or “I hate you,” [whichever
applies, then] the divorce takes effect, even though in her heart there
is the opposite of what she expresses.

If a man divorces his wife during his terminal illness with a final
divorce and he dies whilst she is [still] in her waiting period (‘iddah),
she inherits him.888

[But] if he dies after the completion of her ‘iddah, then she is not
entitled to inheritance.889

If someone says to his wife, “You are divorced, Allah willing (in
shā Allāh),” connecting [in shā Allāh to his declaration], the divorce
does not take effect upon her.

444
 If he says to her, “You are divorced thrice, except for one,” [then]
she is divorced two [pronouncements of divorce], and if he says, “…
thrice, except for two,” [then] she is divorced one [pronouncement of
divorce].890

When a husband becomes the owner of his wife, or a part of her,

or a woman becomes the owner of her husband, or a part of him,
[then] separation891 takes place between them.892

RETRACTION OF DIVORCE (RAJ‘AH)

When a man divorces his wife with a single revocable divorce, or

[with] two [revocable] pronouncements of divorce, he may take her
back during her ‘iddah, whether the woman consents to that
[retraction] or does not consent.

e retraction (raj‘ah) is [made when]:

1. He says to her, “I have taken you back,”

445
 2. “I have taken my wife back,” or

3. He has sexual intercourse with her,

4. He kisses her,

5. He touches her with [sexual] desire, or

6. He looks at her private parts with [sexual] desire.

It is recommended for him to take two male witnesses for the

retraction, but if he does not take any witnesses, the retraction is
[still] valid.

When the ‘iddah elapses and the husband says, “I had taken her
back during the ‘iddah,” and she affirms him [in that], then that is a
[valid] retraction. If she contradicts him, then the [legally decisive]
statement is her saying, and according to Abū Ḥanīfah, may Allah
have mercy on him, she does not have to take an oath.

When the husband says, “I had taken you back,” and she says in
reply, “My ‘iddah had ended,” the retraction is not valid, according to
Abū Ḥanīfah, may Allah have mercy on him.

446
 When the husband of a slave-woman says after the termination of
her ‘iddah, “I had taken you back during the ‘iddah,” and the master
[of the slave-woman] verifies that but the slave-woman denies it,
then the [decisive] statement is her saying, according to Abū
Ḥanīfah, may Allah have mercy on him.

When the bleeding of the third [period] of menstruation ceases in

ten days, the retraction period has elapsed and her ‘iddah has ended,
even if she has not taken a ghusl. If, however, the bleeding ceases in
less than ten days, the retraction [period] does not end until she takes
a ghusl or the duration of one prayer passes over her893 or she
performs tayammum and prays, according to Abū Ḥanīfah and Abū
Yūsuf, may Allah have mercy on them, but Muḥammad, may Allah
have mercy on him, said that when the woman has performed
tayammum, the retraction [period] ends, even though she does not
pray.

447
 If she takes a ghusl and forgets [to wash] a part of her body which
water has not touched:
1. If that is a complete limb or more than that, [then] the
retraction [period] has not ended,894 but

2. If it is less than a limb, then the retraction [period] has

ended.

e woman who has been given a revocable divorce should be in

anticipation [of retraction] and [may] make herself up.895 It is
recommended for her husband not to enter upon her until he seeks
her permission and lets her hear his footfall.

Revocable divorce does not prohibit sexual intercourse.

If it was a final divorce of less than three [pronouncements of

divorce], then [the divorcing husband] may marry her during her
‘iddah and [also] after the completion of her ‘iddah.

On Legalisation of Remarriage (Ḥalālah)

448
 If the divorce is [pronounced] thrice for the free woman, or twice
for the slave-woman,896 [then] she is not lawful for [the divorcing
husband]897 until she marries a husband other than him in a valid
marriage, and he consummates the marriage with her, [and]
thereafter divorces her, or dies leaving her [as his widow].

An adolescent boy is like an adult in [terms of ] making [her] ḥalāl

[for her first husband] (taḥlīl).898

e sexual intercourse of the master with his slave-woman does

not render her lawful [for her first husband].899

When someone marries her with the condition of rendering [her]

ḥalāl [for her first husband] it is disapproved. And if he divorces her
after having sexual intercourse with her, she becomes lawful for the
first [husband to remarry].

449
 When a man divorces a woman with one or two pronouncements
of divorce, and her ‘iddah elapses and she marries another husband
who consummates the marriage with her. ereafter, she returns to
the first [husband],900 she returns with [all] three pronouncements of
divorce [still in hand].901

e second husband tears up what is less than three

[pronouncements of divorce], just as he tears up [all] three
[pronouncements of divorce], according to Abū Ḥanīfah and Abū
Yūsuf, may Allah have mercy on them, but Muḥammad, may Allah
have mercy on him, said that the second husband does not tear up
[that] what is less than three [pronouncements of divorce].

When he divorces her with three [pronouncements of divorce]

and then she says, “My ‘iddah has elapsed, I married another
husband, the second husband had sexual intercourse with me, he
divorced me and my ‘iddah has ended,” and the period of time bears
that interpretation,902 [then] it is permitted for the first husband to
believe her if on the whole he thinks that she is truthful.

450
 ĪLĀ’ – VOWING TO ABSTAIN

(FROM SEXUAL INTERCOURSE WITH ONE’S WIFE)903

When a man says to his wife, “By Allah! I shall not come near
you,”904 or “…I shall not come near you for four months,” then he is
someone who makes the vow of continence (mūlī). us, if he has
sexual intercourse with her within the four months, he has breached
the vow, and an atonement is binding upon him whilst the īlā’ will
have ended.

If he does not go near to her [for sexual intercourse] until four

months elapse, she is divorced with one final pronouncement of
divorce. If he had vowed four months, the vow will have ended, but if
he had vowed (īlā’) forever, then the vow remains [intact].

451
 If [the person who vowed continence forever] reverts and marries
her [again], the īlā’ returns. If he has sexual intercourse with her, [it is
better,] otherwise with the passing of four months another
pronouncement of divorce takes place.905 If he marries her a third
time, the īlā’ returns, and with the passing of four months, another
pronouncement of divorce906 takes place.

If he marries her after [her marriage to] another husband,907

divorce will not occur with that īlā’ again, but the vow remains
[intact].908 So, if he has sexual intercourse with her, [then] he has to
pay atonement for the [breach of ] vow.

If he makes a vow of less than four months, he is not someone

who makes a vow of continence (mūlī).909

If he makes a vow of [performing] ḥajj, fasting, charity, freeing [a

slave] or divorce, then he is someone who makes a vow of continence,

452
and if he makes īlā’ from a divorcée with a revocable divorce,910 then
he is [also] someone who makes a vow of continence.911
If he vows to abstain from sexual intercourse from a wife who is
finally divorced, then he is not someone who makes a vow of
continence.912 e period of īlā’ for a slave-woman is two months.913

1. If the person who makes a vow of continence is ill and

cannot perform sexual intercourse, or

2. e woman is ill,

3. She is atretic,

4. She is a minor with whom sexual intercourse is not possible,

or

5. ere is such a distance between them that he cannot reach

her within the period of īlā’,
then his returning to her is [for him] to say with his tongue,914 “I
have returned to her.”915 us, if he says that, the īlā’ lapses.

If he recovers916 during the period [of īlā’], then that [verbal

expression of ] return becomes void and sexual intercourse is rendered
his [means of ] return.

453
 When one says to his wife, “You are ḥarām for me,” he is asked
regarding his intention, and if he says, “I intended to lie,” then it is as
he says.

If he says, “By it, I intended divorce,” then it is one final divorce,

unless he intended [all] three.

If he says, “By it, I intended ẓihār (unlawful assimilation),” then it

is ẓihār.

If he says, “By it, I intended prohibition,” or “I did not intend

anything by it,” then it is [considered] a vow [of continence] by
which he becomes someone who makes a vow of continence.

454
 KHUL‘ – DIVORCE AT THE INSTANCE OF
THE WIFE

When the spouses clash [with each other] and fear that they will
not be able to uphold the boundaries set by Allah, then there is no
objection to her ransoming herself from him with property (māl),917
for which he will release her.

When he does that, by divorce at the instance of the wife (khul‘)

one final divorce takes effect, and the [payment of the] property
becomes binding upon her.

If the discord (nushūz) is from his side, [then] it is disliked for

him to take a consideration from her, but if the discord is on her part,
it is disliked for him to take more than what he has given her. But, if
he does that, it is permitted in a legal decree.918

455
 If he divorces her [in return] for goods and she accepts, the
divorce takes effect and the goods are binding upon her, and the
divorce is [one] final [divorce].

If the consideration for the divorce at the instance of the wife

(khul‘) is void, for example, he gives divorce at the instance of the
wife (khul‘) to a Muslim woman in return for wine or pigs, [then] the
husband has nothing,919 and the separation is [one] final [divorce].

If the consideration for the divorce is void, then it is [one]

revocable [divorce].920

Whatever is permitted to be dowry in the marriage is permitted to

be a substitute (badal) in divorce at the instance of the wife (khul‘).

If she says, “Release me [in exchange] for whatever is in my

hand,” and he releases her but there is nothing in her hand, then she
owes him nothing.

456
 If she says, “Release me for whatever goods are in my hand,” and
he releases her but there is nothing in her hand, [then] she is to
return her dowry to him.921

If she says, “Release me for whatever dirhams are in my hand,”

and he does [that] but there is nothing in her hand, then she owes
three dirhams.922

If she says, “Divorce me thrice for a thousand,” and he divorces

her once, then she owes [him] a third of a thousand [dirhams].

If she says, “Divorce me thrice against a thousand,” and he

divorces her once, then she owes nothing, according to Abū Ḥanīfah,
may Allah have mercy on him. ey,923 may Allah have mercy on
them, however, said that she owes a third of a thousand.

457
 If the husband says, “Divorce yourself thrice for a thousand,” or
“… against a thousand,” and she divorces herself [only] once, nothing
of divorce takes effect against her.924

Divorce through mutual consent (mubāra’ah) is like divorce at the

instance of the wife (khul‘).

Divorce at the instance of the wife (khul‘) and divorce through

mutual consent (mubāra’ah) both waive every right of either spouse
against the other, of whatever is connected to the marriage, according
to Abū Ḥanīfah, may Allah have mercy on him. Abū Yūsuf, may
Allah have mercy on him, said that divorce through mutual consent
(mubāra’ah) waives [the rights], but divorce at the instance of the
wife (khul‘) does not waive [them], but Muḥammad, may Allah have
mercy on him, said that neither of the two waive anything except that
which [the spouses] specify.

458
 ẒIHĀR – INJURIOUS COMPARISON

When a man says to his wife, “You are to me like my mother’s

back,” she becomes prohibited to him; it is not ḥalāl for him to have
sexual intercourse with her, nor to touch her or kiss her, until he
expiates for his injurious comparison.

en, if he has sexual intercourse with her before he expiates, he

should seek forgiveness of Allah, and there is no liability upon him
other than the first expiation, but he is not to do that repeatedly until
he has made expiation.

e resumption for which expiation is obligatory is for him to

resolve to have sexual intercourse with her.

e Wording of Injurious Comparison (ẓihār)

459
 If someone says [to his wife]:
1. “You are like the belly of my mother,”

2. “…like her thigh,” or

3. “…like her vagina,”

[then] he has committed injurious comparison (ẓihār).

[And it is] likewise, if he injuriously compares her to one of the

un-marriageable relatives (maḥrams), looking at whom [with sexual
desire] is eternally unlawful, for example, his sister, his paternal aunt
or his foster mother.

[And it is] likewise, if he says:

1. “Your head upon me is like the back of my mother,”

2. “Your vagina…,”

3. “Your face…,”

4. “Your neck…,”

5. “A half of you…,” or

6. “A third of you….”

460
 If he says, “You, for me, are like my mother,” [then] one resorts to
his intention, and if he says, “By it I intended reverence,” then it is as
he says.

If he says, “By it, I intended injurious comparison (ẓihār),” then it

is injurious comparison (ẓihār), and if he said, “I meant divorce,” then
it is a final divorce, but if he had no intention, then it is nothing.

Injurious comparison does not occur except with one’s wife, thus,
if he makes [a statement of ] injurious comparison (ẓihār) against his
slave-woman, he has not committed injurious comparison (ẓihār).

If he says to [all of ] his wives, “You are all to me like the back of
my mother,” then he has committed injurious comparison (ẓihār)
against all of them and is liable to expiation [on account of ] each one
of them.

e Expiation of Injurious Comparison (ẓihār)

e expiation for [committing] injurious comparison (ẓihār) is:

1. e freeing of a slave, if that is not possible, then

461
 2. Fasting for two months consecutively, and for someone who
is not able [to fast],

3. e feeding of sixty destitute people.

All that [should be fulfilled] before contact925 [with his wife].

In that it is sufficient to free a Muslim or non-Muslim [slave],

male or female, minor or major, but a blind slave does not suffice nor
one both of whose hands or feet are amputated. However, it is
permitted [for expiation, to free] a deaf [slave] and one one of whose
hands and one of his feet are amputated on opposite [sides],926 but
one both of whose thumbs are amputated is not permitted, nor an
insane [slave] who does not understand [anything].

Freeing a slave who is to be freed on the death of his owner

(mudabbar), a slave-woman who is the mother of her owner’s child
(umm al-walad)927 and a slave who has contracted to purchase his
freedom (mukātab) who has discharged some of his payment, is not

462
allowed, [but] it is permitted if one frees a mukātab who has not
discharged anything.

If someone purchases his [own] father or his [own] son and

intends [to free them in order to perform] expiation by that purchase,
it is valid for it [the purpose of expiation].

If one frees a half of a jointly-owned slave for [the purpose of ]

expiation and accepts liability for the value of the remainder of [that
slave], and frees him, it is not permitted, according to Abū Ḥanīfah,
may Allah have mercy on him. Abū Yūsuf and Muḥammad, may
Allah have mercy on them, however, said that it is sufficient for him
if the one who is setting free is in [financial] ease, but if he is in
[financial] difficulty, [then] it is not valid.

If he frees a half of his slave for [the purpose of ] his expiation,

then later frees the remainder of him for that [expiation], it is
permitted.928

If he frees a half of his slave for his expiation, then has sexual
intercourse with [the wife] whom he had committed the injurious

463
comparison against, then frees the remainder of him, it is not
permitted, according to Abū Ḥanīfah, may Allah have mercy on
him.929

If the person who made the injurious comparison (muẓāhir) does

not find that which he may set free, then his expiation is to fast two
successive months, neither of the two being the month of
Ramadan,930 the day of [‘Īd] al-Fiṭr, the day of an-Naḥr (sacrifice), or
the days of tashrīq.931

If he has sexual intercourse with the one whom he committed the

injurious comparison against, during the two months [of expiation],
whether deliberately at night, or forgetfully during the day, he is to
restart [the fasting from day one], according to Abū Ḥanīfah and
Muḥammad, may Allah have mercy on them, and [similarly] if he
breaks the fast932 on any day of them933 with or without an excuse,
he is to restart [the expiation from day one].934

464
 If a slave commits injurious comparison nothing suffices him as
expiation but to fast. us, if the master frees [a slave] on his behalf,
or he feeds [sixty needy persons] on his behalf, it is not enough for
[the slave who made the injurious comparison (muẓāhir)]. en, if
the person who made the injurious comparison (muẓāhir) is not able
to fast he feeds sixty destitute people. He is to feed each needy
person:
1. A half ṣā‘ of wheat,

2. A ṣā‘ of dates or barley, or

3. e value of that.

If he feeds them dinner and supper, it is permitted, whether what

they eat is a little or a lot, and if he feeds [only] one needy person for
sixty days, that suffices him. However, if he feeds him for one day,
that is not valid for him except for that day only.935

If he approaches the woman against whom he committed the

injurious comparison936 during the [period of ] feeding [the needy],

465
he is not required to restart [the expiation of feeding] from the
beginning.

Whoever is obliged with two expiations for injurious comparison,

and he frees two slaves without making the intention for one of them
specifically, [the atonement of setting free] is permitted for both of
them. [And] likewise, if he fasts for four months, or he feeds one
hundred and twenty persons it is permitted.

If he frees one slave on account of both [expiations], or fasts for

two months, [then] he may attribute that to either of the two
[expiations] he wants.

466
LI‘ĀN – IMPRECATION BY BOTH PARTIES

When a man accuses his wife of sexual infidelity without

substantiation, and both of them are of the people whose testimony is
accepted (ahl ash-shahādah)937 and the wife is one of those whose
accuser of unsubstantiated unlawful sexual intercourse would be
punishable with a ḥadd [punishment], or he denies paternity of her
child, and the wife demands the consequences of an unsubstantiated
accusation of sexual infidelity from him, then he is liable to [the
process of ] imprecation.938

If he refrains from it, the judge (ḥākim) is to detain him until he

engages in [the process of ] imprecation, or admits he was lying [for
which] ḥadd [punishment] is applied to him.939

If he makes the imprecation, [then] engaging in [the process of ]

imprecation940 is obligatory upon her [also]. If she refrains [from

467
making the imprecation], the judge (ḥākim) should detain her until
she imprecates or [until] she says he is telling the truth.941, 942

If the husband is a slave or a non-Muslim, or has been subjected

to a ḥadd [punishment] for unsubstantiated accusations of sexual
infidelity, and he makes unsubstantiated accusations of sexual
infidelity against his [own] wife, then he is due [the punishment for]
unsubstantiated accusations of sexual infidelity.

If the husband is one of the people whose testimony is accepted

(ahl ash-shahādah) and [the accused wife] is a slave-woman or a non-
Muslim, or she has been punished with ḥadd for unsubstantiated
accusations of sexual infidelity, or she is someone whose accuser of
unsubstantiated sexual infidelity cannot be punished with the ḥadd
punishment, then there is no ḥadd punishment against him for his
unsubstantiated accusations against her of sexual infidelity, nor will
there be any imprecation.

e Procedure of Imprecation by Both Parties

468
 e procedure for imprecation is that the judge initiates [the
proceedings with the husband], who testifies four times, each time
saying, “I testify by Allah that I am truthful in that adultery I have
accused her of.” e fifth time, he says that may the curse of Allah be
upon him if he is a liar in that adultery he has accused her of. He
points towards her in all of that [what he says].

en the woman testifies four times, each time saying, “I testify by
Allah that he is a liar in that adultery he has accused me of.” e fifth
time, she says that may the anger of Allah be upon her “if he is
truthful about that adultery he has accused me of.”

When both of them have made the imprecation, the judge orders
their separation. e separation is one final divorce, according to Abū
Ḥanīfah and Muḥammad, may Allah have mercy on them, but Abū
Yūsuf, may Allah have mercy on him, said that it is an eternal
prohibition.943

If the unsubstantiated accusation of sexual infidelity (qadhf) is

regarding a child, the judge should negate its paternity and attach it
to its mother.944

469
 If the husband retracts945 and belies himself, the judge applies the
ḥadd punishment on him, and it becomes lawful for him to marry her
[again], and likewise if he makes unsubstantiated accusations of
sexual infidelity against someone other than her and is [subsequently]
punished with the ḥadd punishment, or she commits adultery and is
[subsequently] punished with the ḥadd punishment.

If he makes unsubstantiated accusations of sexual infidelity against

his [own] wife and she is a minor or insane, then there is no
imprecation between them, nor is there any ḥadd punishment.

An unsubstantiated accusation of sexual infidelity made by a mute

has no imprecation [process] attached to it.

When the husband says [to his wife], “Your pregnancy is not from
me,” there is no imprecation.946 If he says, “You have committed
adultery and this pregnancy is from that adultery,” they both engage
in the imprecation [process], and the judge does not negate the
pregnancy from him.

470
 When the man negates [paternity of ] his wife’s child following
the birth, during the period when congratulations are accepted for it,
or when baby products are purchased for it, his negation of it is valid,
and he is to engage in the imprecation [process] for it.

If he negates it after that, he engages in the imprecation [process]

and [his] paternity is established. Abū Yūsuf and Muḥammad, may
Allah have mercy on them, said that his negation of it during the
period of postnatal bleeding is valid.947

If she bears two babies in one pregnancy, [then] he denies the first
and acknowledges the second, it establishes the paternity of them
both [to the same father], and the husband is punished with the ḥadd
punishment.948 If he acknowledges the first [baby] and denies the
second it establishes the paternity of both of them, and he is to
engage in the process of imprecation.

471
 ‘IDDAH – WAITING PERIOD

When a man divorces his wife with a final or a revocable divorce,

or a separation without divorce has taken place between them, and
she is a free woman who menstruates, her ‘iddah is three menstrual
cycles (qur’), and qur’ is menstruation.

If she does not menstruate due to youth or old age, then her
‘iddah is three months. If she is pregnant, then her ‘iddah is that she
delivers her foetus.949

If she is a slave-woman, then her ‘iddah is two menstrual cycles,

and if she does not menstruate, then her ‘iddah is a month and a half.

472
 When a man dies leaving his wife [who is a] free woman, then
her ‘iddah is four months and ten days. If she is a slave-woman, then
her ‘iddah is two months and five days,950 and if she is pregnant, then
her ‘iddah is that she delivers her foetus.

When a woman who was divorced during the [terminal] illness

[of her husband] inherits, her ‘iddah is the further of the two terms,
according to Abū Ḥanīfah, may Allah have mercy on him.951

If a slave-woman is set free during her ‘iddah from a revocable

divorce, her ‘iddah converts to the ‘iddah of free women, but if she is
set free while irrevocably divorced or widowed, [then] her ‘iddah does
not convert to the ‘iddah of free women.

If she is someone who does not menstruate, who calculates her

‘iddah in months, then later she sees blood, whatever of her ‘iddah
has passed is overruled, and it is necessary for her to restart her ‘iddah
according to menstruation.

473
 e woman who is married with an invalid marriage (nikāḥ fāsid),
and the woman who has sexual intercourse because of an ambiguity,
their ‘iddah is based on menstruation in the cases of separation
[from] and death [of her husband].

When the master of the [slave-woman who is] mother of [his]

child (umm al-walad) dies leaving her, or he sets her free, then her
‘iddah is three menstruations.

When a minor dies leaving his wife [as his widow], and she is
pregnant, then her ‘iddah is that she delivers her foetus. en, if the
pregnancy becomes manifest after the death [of the husband], her
‘iddah is four months and ten days.

When a man divorces his wife during [her] state of menstruation,

she does not count the menstruation in which the divorce took place.

474
 When a woman in ‘iddah has sexual intercourse because of an
ambiguity, she is liable to another ‘iddah and both ‘iddahs may
overlap [each other]. Whatever of menstrual bleeding she sees, it is
reckoned for both [‘iddahs]. us, when the first ‘iddah elapses and
the second is not [yet] complete, she is liable to complete the second
‘iddah.

e beginning of the ‘iddah due to divorce follows the divorce

[immediately], and [the ‘iddah] due to the death [of the husband,
immediately] follows the demise.

If she did not know of the divorce or of the death [of her
husband], until such [time] that the period of ‘iddah elapsed, then
her ‘iddah has elapsed.952

e ‘iddah due to an invalid marriage [immediately] follows the

separation between the two [spouses], or [immediately after] the
resolve of the one who has sexual intercourse to cease having sexual
intercourse with her.953

On the Mourning of Widows

[With regards to] the woman [in ‘iddah] who has been
irrevocably divorced, and [she] who has been widowed, when she is

475
major and Muslim,954 she is to mourn.955

Mourning is to refrain from [wearing] perfumes, adornment,956

oil and kohl, except for a [valid] excuse. She must not dye [herself ]
with henna, wear clothes coloured with wars (a yellow dye) or
saffron.

ere is no [obligation of ] mourning on a non-Muslim woman or

on a minor female, but mourning is [obligatory] on the slave-woman.

ere is no mourning in the ‘iddah of an invalid marriage or in

the ‘iddah of the mother of her master’s child (umm al-walad).

e woman in ‘iddah ought not to be proposed to [in marriage],

but there is no objection to making an allusive reference to a
proposal.

Leaving the house is not permitted for the woman who has been
divorced, revocably or irrevocably, by night or day, but the woman
whose husband has died leaving her [as his widow] leaves the house

476
during the day and [during] a portion of the night, but she does not
spend the night anywhere but in her own house.

e woman in ‘iddah should spend her ‘iddah in the house which

was ascribed to her for residence at the time of the separation.957
us, if her share from the house of the deceased [husband] is
enough for her, she is not to leave it except with a [valid] excuse. If,
however, her share of the house of the deceased [husband] is not
enough for her, and the heirs exclude [her] from their share[s],958
then she moves [out].

It is not permitted for the husband to travel with the revocably

divorced [wife].

When the husband divorced his wife with a final divorce, then
later remarries her during her ‘iddah, and [again] divorces her prior
to consummating the marriage with her, then he is obliged [to pay]
the full dowry, and she is obliged a future ‘iddah.959 Muḥammad,
may Allah have mercy on him, however, said that she is entitled to a
half dowry, and is [only] obliged to complete the first ‘iddah.
P f fL f h N B Ch ld
477
 Proof of Lineage of the New-Born Child

e paternity (nasab) of the child of the woman who has been

revocably divorced is established when she bears him within two
years or more, so long as she does not confirm the completion of her
‘iddah.960 If she bore him in under two years, his paternity of him is
established and she is finally divorced (bā’inah) from her husband. If
she bore him after two years, his paternity is established and it is a
rescission [of the divorce].

[With regards to] the irrevocably divorced woman, the paternity

of her child is established when she bears him in under two years.
When she bears him on the completion of two years from the day of
the separation [due to divorce], his paternity is not established unless
the husband claims it.

e paternity of the child of the widow is established between the

[time of ] death [of her husband] and two years.961

478
 When the woman in ‘iddah acknowledges the completion of her
‘iddah, then later bears a child in less than six months, his paternity is
established. If, however, she bears him in six months [or more], his
paternity is not established.962

When a woman in ‘iddah bears a child, its paternity is not

established,963 according to Abū Ḥanīfah, may Allah have mercy on
him, unless:
1. Two men testify to its birth, or one man and two women,
unless the pregnancy is evident,964 or
2. An acknowledgement from the husband’s side,965 in which case
paternity is established without testimony.

Abū Yūsuf and Muḥammad, may Allah have mercy on them, said
that in all of the [above] cases, [paternity] is established with the
testimony of [only] one woman.

479
 When a man marries a woman and she bears a child in less than
six months from the day that he married her, his paternity of [the
child] is not established, but if she bears him in [exactly] six months
or more, his paternity is established, whether the husband
acknowledges it or remains silent. If, however, he denies the birth
[relating to himself ], it is established with the testimony of one
woman who testifies to the birth.966

e longest period of pregnancy is two years and its shortest

[period] is six months.

When a dhimmī divorces a dhimmī woman, there is no ‘iddah for

her.967

If a woman, pregnant from adultery or fornication, marries, the

marriage is permitted but [her husband] does not have sexual
intercourse with her until she gives birth.

480
 NAFAQĀT – MAINTENANCE

Maintenance (nafaqah) is a duty for the wife from her husband,

whether she is a Muslim or disbeliever, when she surrenders herself
in his house. So, there is due from him her maintenance, her clothing
(kiswah) and her lodging, and all of that is determined according to
the circumstances of [the spouses, whether] the husband is well-off
or in [financial] difficulty.

If she refuses to submit herself [to him] until he gives her dowry
to her, then she is [still] entitled to maintenance.

If she deserts [him], then she has no maintenance until she

returns to his house.

481
 If she is a minor from whom he cannot derive pleasure [through
sexual intercourse], then there is no maintenance for her, even if she
does submit herself to him.

If the husband is a minor who is unable to have sexual intercourse,

whilst the wife is adult, then she is [still] entitled to maintenance
from his property.

When a man divorces his wife, she is entitled to maintenance and

lodgings during her ‘iddah, be she revocably divorced or finally
divorced.

ere is no maintenance for the woman whose husband has died

leaving her [as his widow].968

[In the case of ] all the [forms of ] separation that take place on
the part of the wife due to a wrongdoing, there is no maintenance for
her.969

If he divorces her,970 then later she reneges [on Islam], her [right
of ] maintenance lapses.

482
 If she empowers the son of her husband over herself:971
1. If that is after divorce, then she is [still] entitled to
maintenance,

2. If it is before divorce, then there is no maintenance for her.

When the wife is in custody because of debts, someone abducts

her forcibly and takes her away, or she embarks on ḥajj with someone
who is marriageable (a non-maḥram), she is not entitled to
maintenance.

When she becomes ill in the house of her husband, then she is
entitled to maintenance.

Maintenance for her servant is obligatory on the husband when

[the husband] is well-off, and it is not obligatory for more than one
servant.

It is incumbent upon him to house her in a separate building in

which none of his family [members live], unless she chooses that [to

483
live with other family members].

e husband may prevent her parents, her child from another

[previous] husband and her family from visiting her. He may not,
however, hinder them from looking at her nor from talking to her at
any time they choose.

Whoever experiences difficulty in the [payment of ] maintenance

to his wife, they are not separated, but it is said to her, “Take a debt
against him.”972

When a man is absent and he has some property in the possession

of a man who acknowledges it and [also acknowledges] the marriage,
the judge imposes the maintenance of the wife of the missing man on
that property, and of his minor children and his parents. [e judge]
takes from her a guarantor (kafīl) for her, and he does not decide
maintenance in the property of the missing person [for anyone]
except for these [people].

When the judge has adjudicated for her the maintenance of

someone in financial difficulty, then later, [the husband] becomes

484
more prosperous and she disputes [an increase in her maintenance
money] with him, [the judge] completes the maintenance of someone
in financial ease for her.973

When a period elapses wherein the husband has not given

maintenance to her and she demands that from him, she is entitled
to nothing unless the judge had prescribed some maintenance for her,
or she had made an agreement with the husband regarding its
amount, and then [the judge] adjudicates for her regarding the
maintenance of what [period] has passed [without maintenance].974

If the husband dies after what was adjudicated against him

regarding the maintenance, and a few months have passed [after his
death], the [payment of ] maintenance ceases.

If he gives her advance maintenance for a year, then later dies,

nothing is taken back from her, but Muḥammad, may Allah have
mercy on him, said that the maintenance of whatever has passed is
reckoned up as hers, and whatever remains is for the husband.975

485
 When a slave marries a free woman, her maintenance is a debt
upon him, for which he [may be] sold.

When a man marries a slave-woman, and her master lodges her in

a house with him [the husband], then her maintenance is due upon
[the husband], but if he does not lodge her, then there is no
maintenance for her due from him [the husband].

e maintenance of minor children is due from the father; no-one

shares with him in that, just as no-one shares with him in the
maintenance of the wife.

If the minor is breastfeeding, it is not incumbent upon the mother

to breastfeed him, and the father hires someone for him who
breastfeeds him with her. If he hires her to breastfeed [his wife’s]
child and she [the breastfeeding woman] is [another] wife of his, or a
divorced wife of his in ‘iddah, it is not permitted. It is permitted for
him to hire [the divorced wife] to breastfeed [the child] when her
‘iddah has ended.

486
 If the father says, “I will not hire [the mother of the child],” and
he brings someone else, and the mother consents to the same wages
as that of the stranger,976 the mother is more deserving to
[breastfeed], but if she asks for more, the husband is not compelled
to pay it.977

e maintenance of a minor is obligatory upon his father even if

he is of a different religion, just as the maintenance of the wife is
obligatory upon the husband even if she is of a different religion.

CUSTODY

If separation between the spouses occurs, the mother has more

right to [custody of ] the child. If the mother is not there, then the
maternal grandmother has more right than the paternal grandmother.
If [the child] does not have a maternal grandmother, then the
paternal grandmother has more right than sisters. If, there is no
grandmother, then sisters have more right than paternal aunts and
maternal aunts.

487
 e full sister has priority [to the custody of the child], then the
uterine sister, then the consanguine sister, then maternal aunts have
more right than paternal aunts. ey descend [in order of priority]
just as the sisters descend.978 en paternal aunts [have custodial
rights of the child and they] descend, likewise.

Out of these [women], whoever gets married, her custodial rights

lapse, except the maternal grandmother when her husband is the
paternal grandfather.

If the child has no woman from his family [for his custodianship]
and the men dispute over him [regarding custodial rights], then the
one who has the most right is the closest of them in agnatic
relationship (‘aṣabah).979

e mother and the maternal grandmother have more right to the

[custody of the] boy, until he can eat by himself, drink by himself,

488
dress himself and wash himself after using the toilet, and of the girl
until she begins to menstruate.

Women other than the mother and the maternal grandmother,

have more right to [custody of the] girl until she reaches the age of
[sexual] desire.

[With regards to] the slave-woman, when her master sets her
free, and the mother of her master’s child (umm al-walad), when she
is set free, is with respect to the child like a free woman.980

Before being set free, the slave-woman and the mother of her
master’s child (umm al-walad) have no right to [the custody of ] the
child.

e woman of the People of the Book living under Islamic

governance (dhimmī) has more right to her Muslim child as long as
he has not come to comprehend the religions, or it is feared for him
that he becomes intimate with disbelief (kufr).

It is not permitted for the divorced woman to decide to take her

child out of the city, unless she takes him to her [own] country, and it
was [that country] in which the husband had married her.

489
 It is incumbent upon the man to spend upon his parents, his
grandfathers and his grandmothers when they are poor, even if they
are of a different religion.

Maintenance is not obligatory along with difference in religion,

except for the wife, parents, grandfathers, grandmothers, the child
and grandchild.

No-one shares with the child in the maintenance of his parents.

Maintenance is incumbent [to be given] to any un-marriageable

relative (dhū raḥm maḥram) of his when [that un-marriageable
relative] is:
1. A minor and needy,

2. [When] she is major and needy,

3. A chronically ill981 male, or

4. A needy blind male.

490
 at [maintenance] is incumbent according to the ratio of the
[shares] of inheritance.

Maintenance of a major daughter and [of ] the chronically ill son

is incumbent upon their parents in thirds; from the father, two-
thirds, and one-third from the mother, but their maintenance is not
obligatory if there is difference in religion.

[Maintenance] is not incumbent upon the needy person.

When there is property belonging to an absent son, the

maintenance of his parents is adjudicated to come from it. If his
parents sell his [movable] property for their maintenance, it is
permitted, according to Abū Ḥanīfah, may Allah have mercy on him,
but if they sell his real estate, that is not permitted. If there is
property belonging to an absent son in the care of his parents, and
they spend of it, they are not liable [to recompense him], and if there
is property belonging to him, which is in the care of a non-relative,
and he spends it on [the parents] without the authorisation of the
judge, [the non-relative] is liable [to recompense him].

491
 When the judge adjudicates maintenance for the child, the
parents and for un-marriageable relatives (dhu raḥm maḥrams), and a
period [of time] passes [with non-payment], it lapses [as an
obligation], unless the judge authorises them to buy on credit against
him.

It is [incumbent] upon the master to spend upon his slave and his
slave-woman. If he refuses to do so and they have some earnings then
they earn and spend out of [those earnings], but if they have no
earnings, [then] the master is compelled to sell them.

492
 ‘ITĀQ – SETTING FREE982

e adult, sane free man’s setting free takes effect in his property.
us, if he says to his slave, or to his slave-woman:
1. “You are free,”

2. “…set free,”

3. “…‘atīq (set free),”

4. “…freed,”

5. “I have freed you,” or

6. “I have set you free,”

then he [or she] is free, whether the master intended setting
[them] free or not.983

Likewise, when he says:

493
 1. “Your head is free,”

2. “Your neck…,”

3. “Your body…,” or

4. He says to his slave-woman, “Your vagina (farj) is free.”

If [the master] says, “I have no ownership over you,” and by that

he intends freedom, [the slave or slave-woman] is set free, but if [the
master] does not intend [freedom, then] they are not set free.
Likewise, all statements that imply setting free [depend on the
intention].

If he says, “I have no authority over you,” and he intends setting

free by that, [the slave or slave-woman] is not set free.

When [the master] says, “is is my son” and sticks to that

[statement], or he says, “is is my freed slave (mawlā),” or “O my
freed slave (mawlā),” [then the slave] is set free. If, however, [the
master] says [to the slave], “O my son,” or “O my brother,” he is not
set free.

494
 If he says, regarding a slave the like of whom could not be born to
someone like him,984 “is is my son,” he is set free, according to
Abū Ḥanīfah, may Allah have mercy on him, but according to Abū
Yūsuf and Muḥammad, may Allah have mercy on them, he is not set
free.

If he says to his slave-woman, “You are divorced,” intending by

that freedom, she is not set free.

If he says to his slave, “You are like a free man,” he is not set free,
but if he says, “You are nothing but a free man,” he is set free.

When a man acquires ownership of an un-marriageable relative

(dhū raḥm maḥram) [as a slave], he is set free [unconditionally].985

When a master sets a part of his slave free, he is set free in that
part, and he works for the remainder of his [own] value for the
master, according to Abū Ḥanīfah, may Allah have mercy on him.986
ey,987 may Allah have mercy on them, however, said that he is set
completely free.

495
 When the slave is [shared] between two partners and one of the
two sets his [own] share [of the slave] free, he is free. If [the partner
who set him free] is [financially] well-off, then his partner has a
choice:
1. If he wants, he may set [the slave] free,

2. If he wants, he may take compensation from his partner

according to the value of his share, or

3. If he wants, he may demand work from the slave.

If, however, [the partner] who set him free is in difficult

[financial] circumstances, then the partner has a choice:
1. If he wants, he may set his [own] share [of the slave] free, or

2. If he wants, he may demand work from the slave.

is is according to Abū Ḥanīfah, may Allah have mercy on him.

Abū Yūsuf and Muḥammad, may Allah have mercy on them, said
that [the partner who did not set the slave free] is not entitled to
anything except compensation if [the partner who set the slave free

496
is] well-off, and work [from the slave] if [the partner who set the
slave free is] in [financial] difficulty.

If two men buy the son of either of the two, and likewise if they
inherit him, the share of the father is set free and there is no
compensation for him, but the [other] partner has a choice:
1. If he wants, he may set his [own] share free, or

2. If he wants he may demand work from the slave.

When each of the [two] partners testifies against the other

regarding the freedom [of the slave],988 the slave works for both of
them, according to their share [in him], be they [financially] well-off
or in difficulty, according to Abū Ḥanīfah, may Allah have mercy on
him, but they,989 may Allah have mercy on them, said that:
1. When both of them are well-off, there is no work [on the
slave], but

2. If they are both in [financial] difficulty, he works for both of

497
 them, and

3. If one of the two is well-off and the other is in difficulty, [the

slave] works for the one who is well-off and not for the one
who is in [financial] difficulty.

Whoever sets his slave free for the Face of Allah, exalted is He, or
[even if he sets him free] for Shayṭān or for an idol, he is set free.

e liberation [of a slave] by a coerced or intoxicated person takes

effect.

When one attaches the act of setting free to ownership or [to] a

condition, it is valid, just as it is valid in [the case of ] divorce.

When the slave of a belligerent (ḥarbī) leaves enemy territory (dār

al-ḥarb) [to come] to us as a Muslim, he is set free.

When someone sets a pregnant slave-woman free, she is set free

and her foetus is [also] free, but if he sets the foetus free only, it is set
free but the mother is not set free.

498
 When someone sets his [own] slave free against property and the
slave accepts, he is set free. us, when he accepts, he becomes a free
man and the [payment of ] property is binding upon him. If [the
master] says, “If you pay me a thousand, you will be free,” it is valid;
the [payment of ] property becomes binding upon [the slave, if he
accepts the deal], and he becomes an authorised slave (ma’dhūn).
us, if he presents the property, the judge (ḥākim) compels the
master to take it and set the slave free.

e child of the slave-woman from her master990 is [born] free,

but her child from her husband is owned by her master and the child
of the free woman from a slave991 is [born] free.

TADBĪR – SETTING FREE A SLAVE ON

THE DEATH OF THE MASTER

499
 When the master says to his slave [or slave-woman]:
1. “When I die, you will be free,”

2. “You are free after my passing away,”

3. “You are mudabbar,” or

4. “I have made a mudabbar of you,”

he has become a mudabbar; selling him and giving him away as a
gift is not allowed,992 but the master may seek his services and hire
him out.

If she is a slave-woman, he may have sexual intercourse with her

and he may [also] marry her [to someone].

When the master dies, the mudabbar is set free from a third of his
property, if he can be extracted from the third.993 If, however, [the
deceased master] has no property other than [the mudabbar], he
works for two-thirds of his [own] value.994 If the master was in debt,
[the mudabbar] works for [the amount of ] his [own] full value, for
the creditors of [the master].

e child of the woman who is to be set free on the death of her

master (mudabbarah) is [also] set free on the death of the master
(mudabbar).

500
 If [the master] attaches the act of setting the slave free on his
death (tadbīr) to a description, for example, he says:
1. “If I die due to this illness of mine,”

2. “…in this journey of mine,” or

3. “…in such-and-such an illness,”

then he is not a [real] mudabbar, and he can be sold.

If the master dies according to the description which he

mentioned, [the slave] is set free, just like a slave set free on the death
of his master would be set free.

ISTĪLĀD – BEARING THE CHILD OF THE

MASTER

When a slave-woman gives birth [to a child] from her master, she
becomes the mother of his child (umm al-walad); it is not permitted
for him to sell her nor to transfer her in ownership.995 He may,
however, have sexual intercourse with her, avail of her services, hire
her out and marry her away.

501
 e paternity of her child is not established unless the master
acknowledges it. en, if she bears a child after that,996 his paternity
of it is established without acknowledgement. And, if he denies it, it
is [legally] negated by his statement [of denial].

If he marries her away and she bears a child, then it comes under
the [same] ruling as its mother.

When the master dies, she is set free from all the property.997 If
the master was a debtor, working for the creditors is not binding
upon her.

When a man has sexual intercourse with the slave-woman of

someone else, in marriage, and she gives birth from him, then later
he acquires ownership of her, she becomes an umm al-walad to him.

When a father has sexual intercourse with his son’s slave-woman

and she bears a child, and he claims it, his paternity is established and
she becomes his umm al-walad; her price will be due upon him, but

502
[the payment of ] her compensatory dowry (‘uqr)998 or the price of
her child will not be due from him.

If the paternal grandfather [of the master] has sexual intercourse

with her, with the existence of the father [of the master], his
paternity is not established, but if the father is deceased, the paternal
grandfather’s lineage is established, just like the father’s paternity.

If the slave-woman is [shared] between two partners, and she

bears a child:
1. If either of the two claims it, his paternity is established, she
becomes his umm al-walad, and half her compensatory
dowry and half her value is due [as payment] from him, but
there is nothing due from him [as liability] for the value of
her child;

2. If both of [the partners] claim it together, paternity is

established to both of them, and the slave-woman becomes

503
 an umm al-walad to them both, each of the two is [liable for]
half her compensatory dowry, they clear their property for
the other equally.999 e son inherits from each of the two
the full inheritance [share] of a son,1000 both of them inherit
from him the [equivalent] inheritance of one father.1001

When the master has sexual intercourse with the slave-woman of

his slave who has contracted with him to purchase his freedom
(mukātab), and she bears a child, and he claims it:
1. If the slave who has contracted to purchase his freedom
(mukātab) confirms him [in that], his [the master’s] paternity
is established and [the payment of ] her compensatory dowry
is due from him as well as the value of her child, but she does
not become his umm al-walad;

2. If the slave who has contracted to purchase his freedom

(mukātab) denies his [the master’s] paternity, his paternity of
him [the child] is not established.

504
 AL-MUKĀTAB – THE SLAVE WHO
CONTRACTS TO PURCHASE HIS
FREEDOM

When a master makes his slave or his slave-woman a mukātab

upon [the payment of ] property which he stipulates for them, and
the slave [or slave-woman] accepts that contract,1002 he [or she]
becomes a mukātab.1003,1004

It is permitted to stipulate the [payment of ] the property

immediately, it is [also] permitted to delay it, and [to pay it] in
instalments.

e contract for a minor slave to purchase his freedom is

permitted when he comprehends [the acts of ] buying and selling.

505
 When the contract for the slave to purchase his freedom (kitābah)
is valid, the slave who has contracted to purchase his freedom
(mukātab) goes out of the possession of the master, but does not leave
his ownership. It is permitted for him to sell, buy and travel, but it is
not permitted for him to marry unless the master gives him
permission. He may not give anything as a gift or in charity except
something slight, and neither is he to act as a surety [for anyone]. If a
child is born to him from his slave-woman, it enters into his contract
to purchase his freedom (kitābah); its [legal] ruling is just like the
ruling of its father and its earnings are [also] his.

If a master marries off his slave to his [own] slave-woman, then

later gives them both contracts to purchase their freedom,1005 and
she bears him a child, it enters her contract to purchase her freedom,
and its earnings are hers.

If the master has sexual intercourse with his slave-woman who has
contracted to purchase her freedom (mukātabah), the compensatory

506
dowry (‘uqr) is binding upon him. If he harms her or her child, the
[payment of ] damages [or retaliation against him] is binding upon
him,1006 and if he destroys any of her property, he owes it [to
her].1007

When the slave who has contracted to purchase his freedom buys
his [own] father, or his [own] son, they are comprised in his contract
to purchase his freedom. If he buys the slave-woman who is the
mother of his child (umm al-walad) together with her child, her child
is comprised in the contract to purchase his freedom, and selling her
is not permitted for him. If he buys an un-marriageable relative (dhū
raḥm maḥram) who has no relationship of birth1008 to him, according
to Abū Ḥanīfah, may Allah have mercy on him, they are not
comprised in his contract to purchase his freedom.

When the slave who has contracted to purchase his freedom

(mukātab) is unable [to pay] an instalment, the judge (ḥākim) should
look into his circumstances:
1. If he is owed [a] debt whose discharge he is seeking, or some

507
 property is to come his way, then [the ḥākim] should not
hurry in declaring him insolvent (‘ājiz), but allow him two or
three days;

2. If he has no resort [to anything] and the master demands

declaration of his insolvency, the judge declares him insolvent
and repeals the contract for the slave to purchase his freedom
(kitābah).

Abū Yūsuf, may Allah have mercy on him, said, “He should not
declare him insolvent until two successive instalments are due from
him.”
When the slave who has contracted to purchase his freedom
(mukātab) becomes insolvent, he returns to the [legal] ruling of
slavehood, and whatever earnings he has in his [own] possession are
his master’s.

When the the slave who has contracted to purchase his freedom
dies and he has some property, the contract to purchase his freedom
is not rescinded. Whatever is due from him is discharged from his
property and it is ruled that he was set free during the last part of his
life.1009 Whatever remains is inheritance for his heirs,1010 and his
children are set free.

508
 If he did not leave [enough] to settle [the contract], and he leaves
behind one child who was born during the [period of ] the contract to
purchase his freedom, he is to work for his father’s contract’s
instalments. So, when he has paid [the complete dues], we rule the
setting free of his father before his death, and the child is [also] set
free.

If he leaves a child whom he had bought during the [period of ]

the contract to purchase his freedom, it is said to him, “Either you
pay the contract [dues] to purchase [your] freedom immediately, or
you will be returned to slavery.”

When a Muslim makes a contract for his slave to purchase his

freedom with:
1. Wine,

2. Swine, or

3. For the value of the slave [himself ],

the contract to purchase his freedom is invalid. But, if [the slave]
furnishes the wine, or swine, he is set free and it is binding upon him

509
to work for his value which shall not decrease from the specified
[amount], but it may increase.1011

If he gives him a contract to purchase his freedom for an

unspecified animal, the contract (kitābah) is permitted.

If he gives him a contract to purchase his freedom for a garment,

the type of which is not mentioned [in the contract], it is not
permitted, and [even] if he furnishes it, he is not set free.

If he gives two of his slaves a contract to purchase their freedom

in one contract1012 for a thousand dirhams, if both of them pay, they
are both set free, but if both of them are insolvent, they are both
returned to slavehood.1013

If he gives them a contract to purchase their freedom on [the

condition] that each of them is responsible for the other, the contract
is permitted; whichever of the two pays, they are both set free, and he
resorts to his partner for a half of what he [himself ] has paid.

When a master sets his slave who has contracted to purchase his
freedom free, he is set free with [the master’s act of ] manumitting
[him], and the [payment of the] property of the contract is waived.

510
 When the master of the slave who has contracted to purchase his
freedom dies, the contract for the slave to purchase his freedom is
not rescinded.

And it is said to [the slave who has contracted to purchase his

freedom], “Pay the property to the heirs of the master according to
its instalments.” If any of the heirs set him free, his being set free is
not executed, but if all of them set him free, he is set free and the
[payment of ] the property of the contract is waived.

On the Umm al-Walad and Mudabbar being

Mukātab

It is permitted if the master gives a slave-woman who is the

mother of his child (umm al-walad) a contract to purchase her
freedom. en, if the master dies, the property of the contract is
waived.1014

If his slave-woman with the contract to purchase her freedom

gives birth by him, then she has an option:
1. If she wants she may continue with the contract to purchase
her freedom, or

511
 2. She may declare herself insolvent and become a slave-woman
who is the mother of his child (umm al-walad).

If he gives his female slave who is to be freed upon his death

(mudabbarah) a contract to purchase her freedom, it is permitted.
en, if the master dies and he has no property other than her, [then]
she has an option between:
1. Working for two-thirds of her [own] value, or

2. [For] the full property of the contract to purchase her

freedom (kitābah).

If he decides that his slave-woman who has contracted to

purchase her freedom is to be set free after his death (mudabbarah),
the act of setting her free after his death (tadbīr) is valid, and she has
the option:
1. If she wants she may continue upon the contract to purchase
her freedom, or

2. If she wants she may declare herself insolvent and become

one who is set free after his death (mudabbarah).

512
 en, if she remains on her contract to purchase her freedom and
the master dies without property, she has an option:
1. If she wants, she may work for two-thirds of the sum named
in the contract to purchase her freedom, or

2. Two-thirds of her [own] value, according to Abū Ḥanīfah,

may Allah have mercy on him.

It is not permitted for a slave who has contracted to purchase his

freedom to set his [own] slave free upon [the payment of ] property,
and when he gifts [him] in exchange for a consideration, it is not
valid. It is permitted if [the slave who has contracted to purchase his
freedom] gives his own slave a contract to purchase his freedom.
en, if the second [slave] pays prior to the first being set free, his
clientage (walā’)1015 is for the first master, but if the second [slave]
pays after the first slave who has contracted to purchase his freedom
(mukātab) is set free, then his clientage (walā’) is for [the first].

513
 WALĀ’ – CLIENTAGE1016

When a man sets his slave free, and likewise when a woman sets
[a slave] free, the clientage (walā’) of [that freed slave] is for [the
master or mistress]. If he makes a condition that he is set loose
[without walā’], then the condition is void.

e clientage belongs to the person who sets [the slave] free.

When the slave given a contract to purchase his freedom pays off

[his dues], he is set free and his clientage is for the master. If he is set
free after the death of the master, then his clientage is for the heirs of
the master.

When the master dies, his slaves who were to be freed on his
death (mudabbars) and the slave-women who are mothers of his
children (ummahāt al-awlād) are set free, and their clientage is his.

514
 Whoever acquires ownership of an un-marriageable relative (dhū
raḥm maḥram), he is set free from him, and the clientage of [the un-
marriageable relative (dhū raḥm maḥram)] is his.

When the slave of one man marries the slave-woman of another,

and the master of the slave-woman sets the slave-woman free, and
she is pregnant by the slave (i.e. her husband), she [as well as] her
foetus, are [both] set free. e clientage of the foetus is for the
master of the mother from whom it will never be transferred. If she
gives birth to a child after more than six months of her being set free,
then its walā’ is for the master of the mother, but then if the father is
set free, he draws the clientage of his son and it is transferred from
the master of the mother to the master of the father.

When a non-Arab marries a freed slave-woman of an Arab, and

she gives birth to children from him, the clientage of her child is for
her masters, according to Abū Ḥanīfah and Muḥammad, may Allah
have mercy on them, but Abū Yūsuf, may Allah have mercy on him,

515
said that the clientage of her children will be for their father because
the lineage is [linked] to the fathers.

e clientage of being set free is [subject to] consanguine

orientation (ta‘ṣīb).1017 us, if the freed slave has a consanguine
inheritor in lineage, he is the closest to him, but if he has no
consanguine inheritor in lineage, then his inheritance is for the one
who set him free.1018

If the master dies, and then later the freed slave [also] dies, the
inheritance of [the freed slave] is for the sons of his master not for his
daughters.

Women have no clientage except:

1. Of those whom they set free, or

2. ose whom they set free [in turn] set free,

3. ose whom they give a contract to purchase their freedom

(kitābah), or

4. ose whom they have given a contract to purchase their

freedom [in turn] give a contract to purchase their freedom
(kitābah), or

516
 5. ose they declare to be free after their death (mudabbar), or

6. ose they declare to be free after their death [in turn]

declare free after their death, or

7. Who attract the clientage of someone whom they have freed,

or

8. [Who attract the clientage] of the freed slave of someone

whom they freed.

When the master [dies and] leaves a son, and the children of
another son,1019 the inheritance of the freed slave is for the son [and]
not for the grandsons, because the clientage is for the eldest.

When a person becomes Muslim at the hands of a man and

makes a treaty of clientage with him that he will inherit [the new-
Muslim] and [also] pay on his behalf when he commits [an] offence,
or he becomes Muslim at the hands of someone else and makes a
treaty of clientage with him, the clientage is valid.

e legal responsibility [of the slave] is upon the master.1020

Hence, if he dies and has no heir, then his inheritance is for the

517
master, but if he does have an heir, then [the heir] has more right
than [the master].

e master may transfer the clientage from himself onto someone

else as long as he has not acted as legally responsible for him.1021
When he has acted as legally responsible for him, then he may not
transfer his clientage to anyone else.

It is not [permissible] for the freed slave to enter into a treaty of

clientage with anyone.1022

518
 JINĀYĀT – OFFENCES

Kinds of Homicide

Homicide is of five types:

1. Intentional (‘amd or ‘mens rea’),
2. Quasi-intentional (shibh al-‘amd),
3. Unintentional (khaṭa’),
4. A semblance of unintentional homicide (mā ujriya majrā al-
khaṭa’),
5. Homicide by accidental cause (qatl bi as-sabab).

Intentional [homicide] (qatl al-‘amd) is when one intends to strike

[the victim] with a weapon, or with that which is a substitute weapon
[used] in severing limb from limb,1023 like a sharpened piece of
wood, stone and fire. e consequence of that [action] is sin and
retaliation (qiṣāṣ), unless the heirs (the walīs entitled to exact
retaliation) forgive [him], and there is no expiation for it.

519
 Quasi-intentional [homicide] (qatl shibh al-‘amd) – according to
Abū Ḥanīfah, may Allah have mercy on him, is that one intends to
strike with that which is not a weapon nor a substitute for it.
ey,1024 may Allah have mercy on them, however, said that when
one strikes another with a large stone or with a large piece of wood,
then that amounts to intentional homicide, but quasi-intentional
homicide is when one intends to strike [the victim] with that which
does not ordinarily kill. According to both sayings, the consequence
of that [action] is sin and expiation, and there is no retaliation for it.
ere is [however] severe compensatory payment (diyah
mughallaẓah) for it, due from those legally responsible (‘āqilah).1025

Unintentional [homicide] (qatl al-khaṭa’) is of two types:

1. Mistake in purpose (khaṭa’ fī al-qaṣd): that is when one shoots
[an arrow or other object] at a person believing him to be game,
but it was a human, and
2. Mistake in act (khaṭa’ fī al-fi‘l): that is when one shoots [an
arrow, etc.] towards a target and it hits a human.

520
 e consequence of that [action] is expiation, and a compensatory
payment (diyah) by the group legally responsible (‘āqilah), but there is
no sin for it.

at which resembles unintentional [homicide] (qatl mā ujriya

majrā al-khaṭa’) – like a sleeping person who turns over [in his sleep]
onto a person and kills him. e legal ruling for this [type of
homicide] is the [same] ruling [as that] for unintentional [homicide].

Homicide by accidental cause (qatl bi as-sabab) – like someone

who digs a well and the one who places a rock inside the property of
another. e consequence of this [action], when a human perishes on
account of it, is compensatory payment (diyah) upon the group
legally responsible (‘āqilah), and there is no expiation for it.

Qiṣāṣ (Retaliation; lex talionis) for the Loss of

Life

Retaliation (qiṣāṣ) is obligatory for the killing of everyone the

bloodshed of whom is to be prevented (maḥqūn ad-dam) forever,
when someone kills [him] deliberately.

521
 e free man is killed [in retaliation] for [the killing of ] a free
man, a free man for a slave, a slave for a free man, a slave for a slave
and a Muslim for a person of the non-Muslims living under Muslim
governance (dhimmī). e Muslim is not killed [in retaliation] for
[killing] someone assured of temporary protection (musta’min). A
man is killed for [killing] a woman, an adult for a minor, the sound of
health for [killing] the blind and chronically ill.1026

A man is not killed for [killing] his [own] son, nor for his slave,
his slave who is to be set free after his death (mudabbar), his slave
whom he has given a contract to purchase his own freedom
(mukātab) or for his son’s slave.

Whoever inherits retaliation (qiṣāṣ) against his [own] father, it

lapses.1027

Retaliation is not to be carried out except with a sword.1028

522
 When a slave who has a contract to purchase his own freedom
(mukātab) is intentionally killed, and
1. He has no heir but the master, [the master] has the right of
retaliation if [the mukātab] leaves no payment [for the
contract of kitābah],1029

2. If he does leave a payment [for the contract of kitābah] and

his heir is someone other than the master, then [the heirs]
have no right to exact retaliation, even if they unite with the
master.

When a slave who has been pledged is killed, retaliation is not

obligatory until the pledgor and the pledgee unite.1030

Whoever injures a person deliberately, and [the victim] remains

disabled1031 until he dies, then [the offender] is liable to retaliation.

Qiṣāṣ for the Loss of Bodily Organs

523
 Whoever deliberately amputates the hand of a person from the
joint, the hand of [the offender] is amputated, and likewise the foot,
the flexible part of the nose1032 and the ear.1033

Whoever strikes the eye of a person and [thereby] knocks [the

eyeball from its socket], there is no retaliation (qiṣāṣ) against him,
but if it remains [in its socket] and its [sense of ] sight is lost, then he
is liable to retaliation. [As retaliation] a mirror1034 is heated for him,
some moist wool placed on his face and his eye made to face the
[heated] mirror until its [sense of ] sight goes.

ere is [the right of ] retaliation for teeth.

ere is retaliation in every head wound (sḥajjah) for which a

corresponding [retaliatory wound] is possible.

ere is no retaliation for bones other than for the teeth.

524
 ere is no quasi-intentional (shibh al-‘amd) [crime] in
[anything] other than for [taking a] life (nafs); it is either intentional
(‘amd) or unintentional (khaṭa’).1035

ere is no retaliation between a man against a woman for

[anything] other than [taking a] life, nor between a free man and a
slave or between two slaves.

[e right to] retaliation is obligatory for limbs between a Muslim

and a disbeliever.

Whoever amputates the arm of a man from the middle of his

forearm, or injures him in the body cavity (jā’ifah) and [the victim]
recovers from it, there is no retaliation against [the offender].

If the hand of the amputee1036 was fine, and the hand of the
person who amputated it1037 is crippled, or its fingers are defective,
then the amputee has the option:
1. If he wants, he may sever the impaired hand and he is not
entitled to anything other than that, or

525
 2. If he wants, he may take full compensation (arsh).

Whoever causes a head wound (sḥajjah) to a man and that head

wound comprises that which is between both the sides of [his head]
but it does not comprise that which is between the two sides of [the
head of ] the one who inflicted the head wound,1038 then the victim
of the head wound (mashjūj) has the option:
1. If he wants he may take retaliation according to the amount
of his [own] head wound, beginning at either of the two
sides [of the head] that he wants, or

2. If he wants he may take full compensation (arsh).

ere is no retaliation for the tongue nor for the penis, unless one
amputates the head of the penis.1039

When the murderer makes an agreement with the heirs of the

murder [victim] for [the payment of ] some property, the retaliation

526
lapses and the property becomes incumbent [to be paid by him], be it
little or much. us, if any of the partners [to the right of retaliation]
forgives the killing, or negotiates a settlement for his [own] share for
a consideration, the right of retaliation for the remainder [of the
heirs] lapses, and they are [only] entitled to their share of
compensation (diyah).

When a group [of people] intentionally kill an individual,

retaliation is to be applied to all of them.

When an individual kills a group, and the heirs of the murdered

[victims] appear [for their rights], he is to be killed for all of them
and they are not entitled to anything other than that,1040 but if [only]
one of [the heirs] appears, [the offender] is to be killed for him [only]
and the right of the remainder [of the heirs] lapses.

Against whomsoever qiṣāṣ is obligatory [to be executed] and he

dies, the retaliation lapses.

When two men amputate the hand of one man, there is no [right
of ] retaliation against either one of them, but they are each liable to a
half of the compensatory payment (diyah).

527
 If one man amputates the right hands of two men, and both of
them appear [to claim their rights], then both of them may amputate
his [right] hand, and [also] take a half of the compensatory payment
(diyah) from him, which they divide [between] themselves in two
halves. But if [only] one of the two appears and he amputates the
hand of [the offender], then the other may claim a half of the
compensatory payment (diyah) from him.

When a slave confesses to intentional homicide, then retaliation is

binding against him.

Whoever deliberately shoots [an arrow, etc.] at a man, and the

arrow passes through him and pierces another man [also] and they
both die, then he is liable to retaliation for the first [victim], and the
compensatory payment (diyah) for the second [victim] is due upon
the group who are legally responsible for him (‘āqilah).1041

528
DIYĀT – COMPENSATORY PAYMENTS FOR
CRIMES

When a man kills [another man] quasi-intentionally (shibh

al-‘amd), then the group who are responsible for him (‘āqilah) are
liable for a severe compensatory payment (diyah mughallaẓah), and
[the offender] must make expiation.1042

According to Abū Ḥanīfah and Abū Yūsuf, may Allah have mercy
on them, the compensatory payment (diyah) for quasi-intentional
(shibh al-‘amd) homicide is one hundred camels of four types:

1. Twenty-five camels that are daughters of a pregnant camel,

and that have begun their second year (bint makhāḍ),

2. Twenty-five camels that are daughters of a suckling camel,

and that have begun their third year (bint labūn),

3. Twenty-five camels ready for riding and carrying loads, and

529
 that have begun their fourth year (ḥiqqah), and

4. Twenty-five camels that have entered their fifth year

(jadha‘ah).

Severity (taghlīẓ) [in compensatory payment] is not established

[in anything] but camels. us, if judgement is given [to pay] the
compensatory payment in something other than camels, it is not
[regarded as] severe (mughallaẓah).

[With regards to] unintentional homicide (qatl al-khaṭa’),

compensatory payment for it is incumbent upon the group
responsible for the person who committed the homicide (‘āqilah) and
expiation is binding on the killer.

e compensatory payment (diyah) in unintentional homicide

([qatl] al-khaṭa’) is one hundred camels of five types:
1. Twenty camels that are daughters of a pregnant camel, and
that have begun their second year (bint makhāḍ),

2. Twenty male camels that are sons of a pregnant camel and

that are of one year’s age (ibn makhāḍ),

3. Twenty camels that are daughters of a suckling camel, and

530
 that have begun their third year (bint labūn),

4. Twenty camels ready for riding and carrying loads, and that
have begun their fourth year (ḥiqqah), and

5. Twenty camels that have entered their fifth year (jadha‘ah).

In gold, [it is] one thousand dinars, and in silver, [it is] ten
thousand dirhams.

Compensatory payment (diyah) is not established except with

these three categories, according to Abū Ḥanīfah, may Allah have
mercy on him, but they,1043 may Allah have mercy on them, said
regarding that, “[It is] with them (camels, gold and silver) and with
cows, [it] is two hundred cows; in goats and sheep (ghanam), two
thousand goats or sheep and in clothing, two hundred sets of
clothing (ḥullah) where each set of clothing is of two garments.”1044

e compensatory payment (diyah) for a Muslim and [for] a non-

Muslim living under Muslim governance (dhimmī) is the same.1045

531
For [taking] life [there] is [payment of ] the compensatory payment.

Organs of the Human Body of which there is

Only One
1. For the cartilage of the septum [there] is [payment of ] the
compensatory payment,

2. For the tongue [there] is [payment of ] the compensatory

payment,

3. For the penis [there] is [payment of ] the compensatory

payment,

4. For the intellect, when one strikes someone’s head and his
intellect goes, [there] is [payment of ] the compensatory
payment,

5. For the beard, when it is shaven and does not grow [again],
[there] is [payment of ] the compensatory payment, and

6. For the hair of the head [there] is [payment of ] the

compensatory payment.

Organs of the Human Body that Exist in

Pairs1046

532
 1. For both of the eyebrows [there] is [payment of ] the
compensatory payment,

2. For both of the eyes [there] is [payment of ] the

compensatory payment,

3. For both of the hands [there] is [payment of ] the

compensatory payment,

4. For both of the feet [there] is [payment of ] the

compensatory payment,

5. For both of the ears [there] is [payment of ] the

compensatory payment,

6. For both of the lips [there] is [payment of ] the

compensatory payment,

7. For both of the testicles [there] is [payment of ] the

compensatory payment,

8. For both of the breasts of a woman [there] is [payment of ]

the compensatory payment, and
for each of these parts [there] is [payment of ] half the
compensatory payment.1047

Organs of the Body, or other Essential Parts, of

which there are More than Two

533
 1. For the eyelashes of both eyes [there] is [payment of ] the
compensatory payment, whilst for each of them [there] is
[payment of ] a quarter of the compensatory payment,

2. For each of the digits of both hands and of both feet there
is [to be paid] a tenth of the compensatory payment, all of
the digits are [deemed to be] the same,

3. For each digit in which there are three joints,1048 for each
of them there is a third of the compensatory payment of the
[full] digit,

4. For that [digit] which has two joints,1049 for either of the
two [joints] there is due a half of the compensatory
payment of the digit.

For each tooth there are due five camels [as compensatory
payment], and the incisors and the molars are all [deemed to be] the
same.1050

534
 Whoever strikes an organ [of the body] and he removes its
[functioning] capacity, then for it there is due one full compensatory
payment, just as if he had amputated it, such as the hand when it is
crippled, and the eye when its [sense of ] sight goes.

Compensatory Payment for Wounds

ere are ten kinds of head wound (sḥajjah):

1. Where the skin is ruptured but no bleeding occurs
(ḥāriṣah or khafīfah),

2. Skin is ruptured and blood emerges but does not flow

(dāmi‘ah),

3. Skin is ruptured and bleeding occurs (dāmiyah),

4. Cutting or incising the flesh without exposure of the bone

(bāḍi‘ah),

5. Lacerating the flesh (mutalāḥimah),

6. When the wound touches the pericranium (simḥāq),

7. Exposing the bone but without fracturing it (mūḍiḥah),

8. Fracturing the bone but without dislocation (hāshimah),

9. Fracture and dislocation of the bone (munaqqilah),

535
 10. Fracturing the skull and the wound touches the membrane
of the brain (āmmah).

For exposing the bone but without fracturing it (mūḍiḥah) there is

retaliation, if it was intentional, and there is no retaliation for the
remainder of head wounds.

For whatever is less than a wound exposing the bone but without
fracturing it (mūḍiḥah) there is the ruling of an honest person.1051

For exposing the bone but without fracturing it (mūḍiḥah), if it

was [committed] unintentionally, there is a half of a tenth of the
[full] compensatory payment.1052

For fracturing the bone but without dislocation (hāshimah)

[there] is [due payment of ] a tenth of the compensatory payment.

For fracture and dislocation of the bone (munaqqilah) [there] is

[due payment of ] a tenth plus a half of a tenth of the compensatory
payment.1053

536
 For fracturing the skull and a wound that touches the membrane
of the brain (āmmah) [there] is [due payment of ] a third of the
compensatory payment.

For a wound which penetrates into the inside [whether through

the chest, belly, back or sides] (jā’ifah) [there] is [due payment of ] a
third of the compensatory payment. If it pierces [through to the
other side], then that is two jā’ifah wounds,1054 for which [there] is
[due payment of ] two-thirds of the compensatory payment.

Compensatory Payment for

Amputation/Dismemberment

For [all] the fingers of [one] hand [collectively] [there] is [due

payment of ] a half of the compensatory payment.

en, if someone cuts them off along with the palm [of the hand],
then [there] is [due payment of ] a half of the compensatory payment,
but if he cuts them off along with half of the forearm, then for the
fingers and the palm [together] [there] is [due payment of ] a half of
the compensatory payment, and for the excess there is the judgement
of an honest person. For any additional finger there is [also] the
ruling of an honest person.

537
 For the eye of a minor, his tongue and his penis, when its
soundness is not known, there is the ruling of an honest person.

Whoever wounds a man exposing the bone but without fracturing

it (mūḍiḥah) and his intellect is lost, or the hair of his head [is lost],
the compensation (arsh) for mūḍiḥah will render into [the full]
compensatory payment.1055 If his [sense of ] hearing, his sight or his
speech perish, then [the liability for] the compensation (arsh) for
mūḍiḥah will be upon him, plus the compensatory payment
(diyah).1056

Whoever cuts a finger of a man off and the other [finger] next to

it is crippled, then for both of them is compensation (arsh), and there
is no retaliation for it, according to Abū Ḥanīfah, may Allah have
mercy on him.

Whoever breaks the tooth of a man and another one grows in its
place, the [right of ] compensation lapses.

538
 Whoever wounds a man and the wound heals in such a way that
no sign of it remains, and the hair has grown [again], the [right of ]
to compensation (arsh) lapses, according to Abū Ḥanīfah, may Allah
have mercy on him, but Abū Yūsuf, may Allah have mercy on him,
said that [the offender] is liable to pay compensation (arsh) for the
pain [caused to the victim], and Muḥammad, may Allah have mercy
on him, said [that he is liable for] the doctor’s charges.

Whoever inflicts a wound on a man, [the offender] is not

retaliated against until it is healed.

Compensatory Payment for Homicide and the

Legally Responsible Group (‘Āqilah)

Whoever cuts the hand of a man off by mistake, then later kills

him by mistake prior to the recovery of the wound, [full]
compensatory payment (diyah) is due from him and the
compensation (arsh) for the hand lapses. If [the wound] heals, and
then later [the offender] kills him, he is due [to pay] two
compensatory payments (diyah); one compensatory payment for the
life and one compensatory payment for the hand.

539
 Every intentional homicide ([qatl] al-‘amd) for which retaliation
lapses due to doubt (shubhah), the compensatory payment is [taken]
from the property of the murderer, and every compensation (arsh)
which is incumbent because of [compounding] a negotiated
settlement or confession is [taken] from the property of the killer.1057

When a father intentionally kills his son, compensatory payment

is [taken] from his property within three years.1058

Every offence to which the offender confesses is [a liability paid]

from his [own] property and it is not assigned to the group
responsible for him (‘āqilah).

e intentional [killing] by a minor or insane person is [regarded

as] being unintentional (khaṭa’), and for it there is compensatory
payment due from the group responsible for him (‘āqilah).

Whoever digs a well in the passageway of Muslims, or places a

rock [there], and a person perishes due to it, then his compensatory
payment is due from the group responsible (‘āqilah) for [the
offender]. If an animal perishes, then its compensation is from the
property of [the offender].

540
 If one makes an aperture or a gutter1059 towards a [public]
passage, and it falls on top of a person and he perishes, then his
compensatory payment is due from the group responsible (‘āqilah) for
him.
ere is no expiation due the digger of the well, or [on] the one
who places a rock [in the property of someone else].1060

Whoever digs a well in his [own] property and a person perishes

in it is not liable.

Offences by Riding Animals

e rider [of a mount] is responsible for whatever the mount

tramples on, [for] whatever it knocks with its foreleg or [for]
whatever it chews [with its mouth], but he is not liable for what it
touches with its hind legs or with its tail. If it defecates or urinates in
the path and a person perishes because of it, [the rider] is not liable.

e driver is responsible for whatever [the mount] touches with

its foreleg, or [with] its hind leg, and the man who leads [animals by

541
a halter] is responsible for what [the mount] touches with its foreleg,
[but] not the hind leg.

Whoever leads a caravan is responsible for whatever it tramples

on. If he has a driver with him, then the liability falls upon both of
them.

Offences by Slaves

When a slave commits an offence unintentionally, it is said to his

master, “Either:
1. You hand him over for that [offence], or
2. You ransom him.”

If [the master] hands him over, the person responsible (walī) for
[seeking redress] for the offence acquires ownership of him. If [the
master] ransoms him, he ransoms him with the compensation (arsh)
for [the offence].

If [the slave] returns and offends again, the legal ruling of the
second offence is [the same as] the legal ruling of the first.

If he commits two offences, it is said to his master, “Either:

542
 1. You hand him over to the persons responsible (walī) for
[seeking redress] for the two offences, who divide him
according to the amount of their rights, or

2. You ransom him with compensation (arsh) for each of the

two [offences].”

If the master frees him unaware of the offence, the master is liable
for the lesser of his value or the compensation (arsh) for [the
offence].1061

If he sells him, or frees him, after coming to know of the offence,

[the payment of ] compensation (arsh) is incumbent upon him.

When a slave who is due to be freed on the death of his master

(mudabbar), or a mother of her master’s child (umm al-walad),
commit an offence, the master is liable [to pay] the lesser: their value
or the compensation (arsh) for [the offence].

543
 If they commit another offence, and the master had already paid
their value to the first person responsible (walī) [for the first offence]
due to a legal decision, then there is nothing [as liability] upon him.
e person responsible (walī) for [seeking redress] for the second
offence pursues the person responsible (walī) for [seeking redress] for
the first offence and shares with him in what he has taken. If the
master had paid the value without a legal decision, then the person
responsible (walī) [for the second offence] has a choice:
1. If he wants, he may seek redress from the master, or

2. If he wants, he may seek redress from the person

responsible (walī) for [seeking redress] for the first offence.

Leaning Walls and Killing Slaves

When a wall leans over the path of Muslims, and its owner is
demanded to demolish it, and [the demand] has been witnessed, and
he does not demolish it within a period in which he could have
demolished it, until it falls, he is liable for whatever perishes due to it,
be it of life or [of ] property.

It is the same whether a Muslim demands its demolition or a

non-Muslim living under Muslim governance (dhimmī).

544
 If it leans towards the house of a man, then the demand [for its
demolition or reparation] is only vested in the owner of the house.

If two horse-riders1062 collide and both of them die, then the

group responsible (‘āqilah) for each of the two is responsible for
[payment of ] the compensatory payment for the other.

When a man kills a slave unintentionally, he is liable for his value,

and it shall not exceed ten thousand dirhams. If his value was ten
thousand dirhams or more, judgement is given against him for ten
thousand less ten.1063 [With regards to] the slave-woman, when her
value exceeds the [amount of ] compensatory payment (diyah), five
thousand less ten is incumbent.1064

For the hand of a slave there is due a half of his value, and it shall
not exceed five thousand less five.1065

All that which is taken into account in the compensatory payment

for a free man, it is [also to be] taken into account in the value of the
slave.

545
 When a man1066 strikes the belly of a woman and she miscarries
the foetus, then he is liable for ghurrah; ghurrah is a half of the tenth
of the compensatory payment (diyah).1067 If she delivers it alive, and
then later it dies, there is full compensatory payment (diyah) for it. If
she delivers it stillborn, then later the mother dies, compensatory
payment and ghurrah are [both] due upon him. If she dies, then later
delivers it stillborn, there is nothing for the [delivered] foetus [as
liability].1068

Whatever is incumbent for the foetus [as compensation] is for his

heir.1069

[With regards to] the foetus of a slave-woman, when it is a male,

[compensatory payment (diyah) is] a half of the tenth1070 of its value
if it was alive, and a tenth of its value if it is a female.

ere is no expiation for [the death of ] a foetus.

546
 e expiation in quasi-intentional (shibh al-‘amd) and
unintentional (al-khaṭa’) [homicide] is to free one Muslim slave, and
if he is not found, then to fast two months consecutively [as
expiation], but feeding [the needy] is not sufficient for it.

QASĀMAH – COMPURGATION BY OATH

When someone is found slain in a locality and it is not known

who killed him, fifty men, whom the heir [of the slain man] (walī)
chooses, are made to swear an oath: “By Allah! We did not kill him
and neither do we know of his killer.”
When [after] they have sworn, compensatory payment (diyah) is
adjudged to be due from the people of the locality.1071

e heir [of the slain man] (walī) is not required to swear [the
oath] nor is he adjudicated against with [respect to] the offence, even
if he does swear [the oath].

If any of them refuse [to swear the oath], he is taken into custody
until he swears.

547
 If the people of the locality do not complete [the quorum of fifty],
the oaths are repeated amongst them until they complete fifty oaths.

Minors, the insane, women and slaves are not included in the
qasāmah.1072

If a dead [body] is found, and there is no sign upon it,1073 there is

no qasāmah or compensatory payment (diyah) [for it], and likewise if
blood is pouring from his nose, his behind or [from] his mouth. If,
however, [the blood] is emerging from his eyes or his ears, then he
has been killed.

When a slain person is found on a mount which a man was

driving, then compensatory payment (diyah) is due from the group
legally responsible for him (‘āqilah) not from the people of the
locality.

If the slain person is found in the house of a person, the qasāmah

is due from [the occupier of the house] and compensatory payment
(diyah) is due from the group legally responsible for him (‘āqilah).

548
 Lessees shall not enter the qasāmah with [the presence of ]
landlords, according to Abū Ḥanīfah, may Allah have mercy on
him.1074 It is due from the original authorised settlers (ahl al-khiṭṭah)
and not buyers,1075 even if [only] one of them remains.

If the slain person is found on a boat, the qasāmah is due from

whomever is embarked [on it] and the boatmen who are in it.

If he is found in a locality’s mosque, the qasāmah is due from the

inhabitants of that locality.

If he is found in a congregational (jāmi‘) mosque, or [in] a main

road, then there is no qasāmah in it, and the compensatory payment
(diyah) is due from the public treasury (bayt al-māl).

If he is found in the wilderness where there is no building close

by, then he is not to be retaliated for and it goes uncompensated
(hadar). If he is found between two villages, [the qasāmah] is due
from the closer of the two.

549
 If he is found in the middle of the [River] Euphrates1076 and
water is flowing over him, then he is not to be retaliated for and it
goes uncompensated. If he is held to the bank [of the river], then he
is [the liability] of the closest of the villages to that place.

If the heir [of the slain] (walī) accuses one specific person of the
people of the locality with murder, the qasāmah does not lapse from
[the other people of the locality], but if he claims [the murder]
against someone other than [the locals], qasāmah lapses from them.

When the oath-taker says, “So-and-so killed him,” he is made to

swear an oath: “By Allah! I did not kill [him] and neither do I know
of his murderer, other than so-and-so.”

When two of the people of the locality testify against a man,

other than [the locals] that he killed him, their testimony is not
accepted.

550
 MA‘ĀQIL – PAYERS OF DIYĀT/THE
LEGALLY RESPONSIBLE GROUP

Compensatory payment (diyah) for quasi-intentional ([qatl] shibh

al-‘amd) and unintentional ([qatl] al-khaṭa’) [homicide] and every
compensatory payment that is incumbent due to homicide itself,1077
are due from the legally responsible group (‘āqilah).

e ‘āqilah are the people of the register (dīwān) (of military

personnel)1078 if the killer is from the people of the register; [the
diyah] is taken from their wages over three years.

If the wages are paid in more than three years, or less, it shall
[nevertheless] be taken from them.

551
 Whoever is not of the people of the register (dīwān) [of military
personnel], then his legally responsible group (‘āqilah) are his tribe,
from whom [diyah] is taken in instalments over three years, no one
[paying] more than four dirhams [in total]. In each year [the
payment] is one dirham and two dāniqs1079 [per head]. [e total
payment] may be less than [four dirhams].

If the tribe cannot afford that [amount], the tribe closest to them
are merged with them and the killer will join with the legally
responsible group, and he will be like one of them in whatever he
pays.1080

e group legally responsible for a freed slave is the tribe of his

master.

e person who has become a client (mawlā) of amity

(mawalāt),1081 his master (mawlā) and the tribe of [the master] pay
[compensatory payment] on his behalf.

552
 e group who are responsible (‘āqilah) do not undertake [the
payment of ] less than a half of a tenth1082 of the compensatory
payment, and it undertakes a half of the tenth or more. Whatever is
less than that [amount of the total liability], is [taken] from the
property of the offender.1083

e legally responsible group does not pay [compensatory

payment (diyah)] for an offence [committed] by a slave, nor does it
pay for the offence to which the offender confesses, unless they all
confirm it.1084 ey do not pay [compensatory payment (diyah)] for
what becomes binding by negotiated settlement.

When a free man commits an offence of unintentional ([qatl] al-

khaṭa’) [homicide] against a slave, it is [a liability] upon his legally
responsible group (‘āqilah).

553
 ḤUDŪD – PUNISHMENTS FOR
CONTRAVENTION OF THE LIMITS1085

Zinā – Unlawful Sexual Intercourse

Unlawful sexual intercourse1086 is established1087 by clear proof

and confession.

Clear proof [of unlawful sexual intercourse] is that four male

witnesses1088 testify against a man or a woman [having committed]
unlawful sexual intercourse.

e Imam (leader) is to interrogate [the witnesses] regarding the

unlawful sexual intercourse:

1. What is it?
2. How was it [committed]?
3. Where did he [or she] commit unlawful sexual intercourse?
4. When did he [or she] commit unlawful sexual intercourse?
5. With whom did he [or she] commit unlawful sexual
intercourse?

554
 When they make that clear, and they say, “We saw him having
sexual intercourse with her in her vagina, just like a kohl stick inside a
kohl jar,” the judge is to inquire about them and [if ] they are declared
honest in private and in public1089 he is to legally decide according to
their testimony.

Confession is that a sane and adult [person] confesses against

himself four times, in four [separate] sessions of the sessions of
confession,1090 whenever [the offender] confesses, the judge refuting
him. When his confession is completed four times, the judge should
question him regarding the unlawful sexual intercourse: what it was,
how it was [committed], where he committed the unlawful sexual
intercourse and with whom he committed the unlawful sexual
intercourse. us, when he has disclosed [all] that, the ḥadd
punishment is carried out on him.

If the person who committed unlawful sexual intercourse (zānī) is

or has been married (muḥṣan),1091 he is pelted with stones until he
dies.

555
 He is taken out to open ground and the witnesses begin by
stoning him, thereafter the leader (Imam), followed by [the rest of ]
the people. If the witnesses decline to initiate [the stoning], the ḥadd
punishment lapses.

If the person who committed unlawful sexual intercourse had

confessed, the leader (Imam) commences [the stoning], then [the rest
of ] the people.

[When he dies after being applied the ḥadd punishment] he is

given a ghusl, shrouded and prayed over.1092

If he was not married and had never consummated a marriage,

and he is a free man, then his ḥadd punishment is one hundred
lashes. e leader (Imam) shall give the order to strike him with a
whip in which there is no knot, [with] medium strokes. His clothes
are removed from him and the lashes dispersed over his limbs except
his head, his face and his private parts (farj).

If he is a slave, his lashes are fifty [in] the same [manner].

R b h C f dW
556
 Retraction by the Confessor and Witness

If the one who confesses [to] unlawful sexual intercourse goes

back on his confession prior to the application of the ḥadd
punishment to him or [even] during it, his retraction is accepted and
he is released.

It is recommended for the leader (Imam) to encourage the one

who is confessing to retract [his confession], and [that] he says to
him, “Perhaps you [only] touched or kissed [her].”

e man and woman are [treated] the same in that,1093 except

that with the woman, her clothes are not removed except for fur and
padding.1094

In the [case of ] pelting, it is permitted for [a ditch] to be dug for

her.1095

A master may not apply the ḥadd punishment to his slave or to his
slave-woman, except with the permission of the leader (Imam).

557
 If one of the witnesses retracts [his testimony] after the legal
decision [has been issued], [but] prior to the stoning, the ḥadd
punishment is applied to them,1096 and the [the ḥadd punishment
of ] stoning lapses from the accused.

If he retracts [his testimony] after the stoning, the retracting

[witness] alone is subject to the ḥadd punishment, and he [alone] is
liable to a quarter of the compensatory payment (diyah).

If the number of witnesses falls below four, all of them are subject
to the ḥadd punishment.1097

e [conditions of ] being muḥṣan (iḥṣān) for stoning are to be:

1. Free,

2. Adult,

3. Sane,

4. Muslim,

5. Who has married a woman in a valid marriage, and

6. Has had sexual intercourse with her when both of them had
the characteristics of iḥṣān.1098

558
 Lashing and stoning are not combined in [the punishment of ] the
muḥṣan.1099

Lashing and banishment are not combined in [the punishment

of ] a virgin [male or female], unless the leader (Imam) sees that as
welfare, and so punishes him according to what he deems
appropriate.

When an ill person commits unlawful sexual intercourse, his ḥadd

punishment being stoning,1100 he is stoned [to death], but if his ḥadd
punishment is lashing, he is not whipped until he recovers [from his
illness].

When a pregnant woman commits unlawful sexual intercourse,

she is not subjected to the ḥadd punishment until she
delivers.1101,1102

If her ḥadd punishment is lashes, then [it is not applied] until she
comes out of her postnatal bleeding.1103

559
 When the witnesses testify of a previous ḥadd punishment, the
execution of which their distance from the leader (Imam) did not
hinder them,1104 their testimony is not accepted except in the [case
of ] the ḥadd punishment for unsubstantiated accusations of unlawful
sexual intercourse in particular.1105

Whoever has sexual intercourse with a female non-relative in

other than the vagina, is to be subjected to a discretionary
punishment (ta‘zīr).1106

ere is no ḥadd punishment for someone who has sexual

intercourse with the slave-woman of his son, or of his grandson, even
if he says, “I knew that she was ḥarām for me.”

When someone has sexual intercourse with the slave-woman of

his father, [of ] his mother or [of ] his wife, or a slave has sexual
intercourse with the slave-woman of his master and says, “I knew
that she was ḥarām for me,” he is to be subjected to the ḥadd
punishment, but if he says, “I thought that she was ḥalāl for me,” he
is not subjected to the ḥadd punishment.

560
 Whoever has sexual intercourse with the slave-woman of his
brother, or [of ] his paternal uncle and says, “I thought that she was
ḥalāl for me” is subject to the ḥadd punishment.

Someone to whom a woman other than his wife is conducted [in

matrimonial fashion], and the women say, “She is your wife,” and he
has sexual intercourse with her, there is no ḥadd punishment upon
him, but he owes [the payment of ] dowry.

Whoever finds a woman in his bed and he has sexual intercourse

with her, then the ḥadd punishment is carried out upon him.

Whoever marries a woman to whom marriage is not lawful and

has sexual intercourse with her, the hadd punishment is not carried
out upon him.1107

Whoever comes to a woman by that location which is

disapproved,1108 or he practices the act of the nation of [the Prophet]
Lūt1109 there is no ḥadd punishment, according to Abū Ḥanīfah, may
Allah have mercy on him, but he is subject to a discretionary

561
punishment (ta‘zīr). ey,1110 may Allah have mercy on them,
however, said that it is like unlawful sexual intercourse and he is
subject to the ḥadd punishment.

Whoever has sexual intercourse with an animal,1111 there is no

ḥadd punishment for him.

Whoever commits unlawful sexual intercourse in enemy territory

(dār al-ḥarb), or in rebellious territory (dār al-baghy),1112 and
thereafter, he comes out to us [Muslims], the ḥadd punishment is not
applied to him.

e Ḥadd Punishment for Consumption of

Alcohol (Shurb)

Whoever drinks wine (khamr) and is caught while its odour is

present, and witnesses testify against him to that effect, or he
confesses while its odour is present, then the ḥadd punishment is due
upon him. If he confesses after the departure of its odour, he is not
subject to the ḥadd punishment.

562
 Whoever becomes intoxicated with date-beverage (nabīdh) is
subject to the ḥadd punishment.

ere is no ḥadd punishment upon someone from whom the

odour of wine is smelt, or [if ] he vomits [wine].1113

e intoxicated [person] is not subject to the ḥadd punishment

until it is known that he was intoxicated with date-beverage and
[that] he drank it voluntarily.

Someone is not punished with the ḥadd punishment until the

intoxication has left him.1114

e ḥadd punishment for wine and intoxication for the free man
is eighty lashes which are dispersed over his body, just as we
mentioned in [the case of ] unlawful sexual intercourse. If it is a slave,
then his ḥadd punishment is forty [lashes].

Whoever confesses to drinking wine and [to] intoxication, then

later goes back [on his confession] is not subject to the ḥadd
punishment.

563
 Drinking [wine] is proven by the testimony of two male witnesses,
or by his confessing once.

e testimony of women along with the men is not accepted for

[intoxication].

QADHF – UNSUBSTANTIATED
ACCUSATION OF UNLAWFUL SEXUAL
INTERCOURSE

When a man accuses a muḥṣan man or a muḥṣanah woman of

explicit unlawful sexual intercourse without substantiation, and the
person accused of unlawful sexual intercourse (maqdhūf) demands
the ḥadd punishment, the judge (ḥākim) is to carry out the ḥadd
punishment on [the accuser].1115 [It is] eighty lashes if he is a free
man, which are dispersed over his limbs. He is not to be stripped of
his clothes, except that fur and padding are removed from him. If he
is a slave, [the ḥākim] lashes him forty times.

564
 Iḥṣān1116 is that the person falsely accused of unlawful sexual
intercourse (maqdhūf) be:
1. Free,
2. Adult,
3. Sane,
4. Muslim, and
5. Abstaining from the act of unlawful sexual intercourse.

Whoever denies the lineage of someone and says, “You are not
your father’s,” or “O son of an adulteress,” and his mother was a
muḥṣanah who is dead, and the son demands the ḥadd punishment
for her, the person who makes the unsubstantiated allegations of
sexual misconduct is subjected to the ḥadd punishment.

e ḥadd punishment for unsubstantiated accusations of unlawful

sexual intercourse by the deceased is only demanded by someone in
whose lineage impairment occurs due to the unsubstantiated
accusations of unlawful sexual intercourse [made by the offender].1117

When the person against whom the unsubstantiated allegations

are made is muḥṣan, it is permissible for his non-Muslim son and
[also] his slave to demand the ḥadd punishment.

e slave may not demand [the ḥadd punishment] for his [own]
master for unsubstantiated accusations of unlawful sexual intercourse

565
[made] against his [own] free mother.

If someone confesses to [making] unsubstantiated accusations of

unlawful sexual intercourse, and then later retracts [it], his retraction
is not accepted.

Whoever says to an Arab, “O Nabatean” is not subject to the ḥadd

punishment, and whoever says to a man, “O son of the Water of the
Sky (Mā’ as-Samā’)”1118 has not made an unsubstantiated allegation
of sexual misconduct. When someone ascribes [another] to his
paternal uncle, to his maternal uncle, or to the husband of his
mother, he has not made an unsubstantiated allegation of sexual
misconduct.

Whoever has ḥarām sexual intercourse in a place other than his

own property, then the person who makes an unsubstantiated
accusation of unlawful sexual intercourse against him is not subject to
the ḥadd punishment.

A woman whose husband engaged in the process of li‘ān with her

who has a child [whose paternity he did not accept], the person who
makes an unsubstantiated accusation of unlawful sexual intercourse
against her is not subjected to the ḥadd punishment.1119 If, however,

566
the woman whose husband engaged in the process of li‘ān with her is
without a child then the person who makes an unsubstantiated
accusation of unlawful sexual intercourse against her is subject to the
ḥadd punishment.

Whoever without substantiation accuses a slave-woman, a slave or

a non-Muslim of unlawful sexual intercourse, or makes
unsubstantiated accusations against a Muslim of [an act] other than
unlawful sexual intercourse and says, “You deviant (fāsiq),” “O
disbeliever (kāfir),” or “You foul person (khabīth)” is to be subjected
to a discretionary punishment, but if he says, “You donkey (ḥimār),”
or “You pig (khinzīr)” he is not subject to a discretionary punishment.

Ta‘zīr – Discretionary Punishment

Discretionary punishment’s maximum is thirty-nine lashes, and

its minimum is three lashes.

Abū Yūsuf, may Allah have mercy on him, said that discretionary
punishment can reach [up to] seventy-five lashes.

If the leader (Imam) decides to combine the lashes in

discretionary punishment with imprisonment, he may do so.

567
 e most intense striking is [in]:
1. Discretionary punishment (ta‘zīr), then

2. e ḥadd punishment for unlawful sexual intercourse

(zinā), then

3. e ḥadd punishment for drinking alcohol (shurb), and

then

4. e ḥadd punishment for unsubstantiated accusations of

unlawful sexual intercourse (qadhf).

Whomsoever the leader (Imam) applies the ḥadd punishment to,

or punishes with discretionary punishment, who then dies, his death
is to be un-retaliated and uncompensated.

When a Muslim is subjected to the ḥadd punishment for

unsubstantiated accusations of unlawful sexual intercourse, his
testimony lapses, even though he repents.1120

If a non-Muslim is subjected to the ḥadd punishment for

unsubstantiated accusations of unlawful sexual intercourse, then later
becomes a Muslim, his testimony will be accepted.1121

568
 SARIQAH WA QUṬṬĀ‘ AṬ-ṬARĪQ – THEFT
& HIGHWAY ROBBERS

When an adult, sane person steals ten dirhams, or that whose

value is ten dirhams, coined1122 or un-coined, from a well-protected
place about which there is no doubt, then amputation is
prescribed1123 against him. e free man and the slave are [deemed]
the same in this [matter].

Amputation becomes obligatory by:

1. His single confession, and [also] by
2. e testimony of two [male] witnesses [against him].

If a group join together to steal, and each one of them acquires ten
dirhams, he is subject to amputation, but if he acquires less that that
[amount], he is not subject to amputation.

569
 One is not subject to amputation for [the theft of ] what is found
to be insignificant and ownerless in the abode of Islam (dār al-Islām),
like wood, grass, cane, fish and game, nor for what perishes quickly,
like fresh fruit, milk, meat, melons, fruit on trees and crops that have
not been harvested.

One is not subject to amputation for [the theft of ]:

1. Delicious beverages,

2. A lute, nor for the theft of

3. A written copy of the Qur’ān (muṣḥaf) even if there is

decoration on it,1124

4. A crucifix [made] from gold and silver,

5. Chess [set] or backgammon.1125

570
 ere is no amputation for the kidnapper of a free minor, even if
there may be jewellery on him, nor for the abductor of an adult slave.

e kidnapper of a minor slave is subject to amputation.

ere is no amputation for [the theft of ] any files except for files
of accounts.1126

e thief of a dog, a lynx, a tambourine, a drum and a woodwind

musical instrument (mizmār) is not subject to amputation, but he is
subject to amputation for [the theft of ] teak, the shaft of a spear,
ebony and sandalwood.

When pots and doors are manufactured from wood, someone is

subject to amputation [for the theft of it].

ere is no amputation for a male or female fraudster, a

bodysnatcher, a looter or a pilferer.

Someone who steals from the public treasury (bayt al-māl) is not
subject to amputation, nor for [the theft of ] property in which the

571
thief has a share.1127

Whoever steals from his [own] parents, from his son or from an
un-marriageable relative (dhū raḥm maḥram) is not subject to
amputation, and likewise when one of the spouses steals from the
other, a slave from his master or from the wife of his master, from
the husband of his mistress, or a master [steals] from his slave to
whom he has given a contract to buy his freedom (mukātab), and
similarly someone who steals from booty.

On Well-Protected Places (Ḥirz)

Well-protected places are of two types:

1. Well-protected places, like houses and rooms, and
2. Well-protected places with a guard.

So, whoever steals something specific from a well-protected place

or a place that is not well-protected when its owner was with it
safeguarding it, amputation is prescribed against [the thief ].

572
 ere is no amputation for someone who steals from the public
baths (ḥammām), or from a room which is permitted to the public to
enter.

Whoever steals an item from a mosque and its owner was with it,
[the thief ] is subject to amputation.

ere is no amputation for a guest when he steals from the one

who hosted him.

When a burglar makes a hole in a house, enters, takes away

property and hands it over to someone else outside the house, there is
no amputation for either of the two.

But if he threw it into the street then came out and took it, he is
subject to amputation, and likewise, when he loads it on a donkey
and drives it and [thereby] takes it out [of the house].

When a group enters a well-protected place and [only] some of

them take [things], all of them are subject to amputation.

573
 Whoever makes a hole in a house and enters his hand into it and
takes something is not subject to amputation, but if he enters his
hand into the trunk of a cambist, or into the pocket of someone, and
takes his property, he is subject to amputation.

On Amputation

e right hand of the thief is amputated from the wrist and it is

cauterised.

If he steals [a] second [time], his left foot is amputated.

If he steals [a] third [time], he is not subject to amputation but is

made to remain in prison until he repents.

If the thief has a crippled left hand, or it is amputated, or his right

leg is amputated, he is not subject to amputation.1128

574
 e thief is not subject to amputation unless the one he stole from
is present and demands [the legal decision and punishment for] theft.
If he gives [the stolen property] to the thief as a gift, sells it to him,
or if its value drops below the minimum level (niṣāb of ten dirhams),
[the thief ] is not subject to amputation.

Whoever steals an item and [his hand or foot] is amputated for it,
and then he returns it, and then later returns and steals it [again]
whilst it is [in] the same [condition], is not subject to [a second]
amputation. But if it had altered from its [previous] state, for
example, it was some spun thread and he stole it and [his hand or
foot] was amputated for it, and then he returned it, and then later it
is woven,1129 and he returns and steals it, he is subject to [a second]
amputation.

When the [hand or foot of the] thief is amputated and the item
remains in his possession, he returns it, but if it has perished, he is
not liable.

575
 When the thief claims that the stolen item is his [own] property,
the amputation lapses, even if he does not produce evidence.

On Highway Robbery

When a group of people goes out as those forbidding others [on

their way], or one [person] who is able to hinder [others], and they
intend to commit highway robbery (qaṭ‘ aṭ-ṭarīq),1130 and they are
caught before they take any property [of others], and they have not
killed anyone, the leader (Imam) should detain them until they
express repentance.

If they take the property of a Muslim or [of ] a non-Muslim living

under the governance of Islam (dhimmī), and when the seized item is
divided between their group each of them gains ten dirhams or more,
or its value reaches that [amount], the leader (Imam) amputates
alternate hands and feet.1131

576
 If they killed someone but did not take any property, the leader
kills them as ḥadd [punishment],1132 but if the heirs forgive them, he
does not pay heed to their forgiveness.1133

If they murdered as well as taking property, then the leader has an

option:
1. If he wants, he amputates alternate hands and feet, kills
them and crucifies them, and

2. If he wants, he kills them, and

3. If he wants, he crucifies them.

ey are to be crucified alive, and their bellies are slit with a spear
until they are dead; they are not crucified for more than three days.

If there is a minor among them, someone who is insane or an un-

marriageable relative (dhū raḥm maḥram) of the victim of the

577
banditry [maqṭū‘ ‘alayhi], the ḥadd punishment against the rest of
them lapses.1134

And the [right of ] killing goes to the heirs:

4. If they want, they may kill [the group], or
5. If they want, they may pardon [them all].
If any of [the bandits] had pursued the murder, killing [as a ḥadd
punishment] is carried out against them all.1135

578
ASHRIBAH – [INTOXICATING] DRINKS

ere are four [types of ] prohibited drinks:

1. Wine – and that is the juice of grapes when it ferments,1136
becomes strong1137 and gives off froth,1138

2. Expressed fruit juice – when it is cooked until less than

two-thirds of it has gone,1139

3. e infusion (naqī‘) of dates,1140 and

4. e infusion of raisins, when it ferments and becomes

strong.

579
 Mead (nabīdh) of dates and [of ] raisins, when each of the two is
cooked with minimum cooking is lawful, even though it becomes
strong, when one drinks some of it predominantly believing that it
will not intoxicate him, not [drinking it] for amusement and
pleasure,1141 and there is no objection to the mixture of the two.1142

e mead of honey, figs, wheat, barley and durra1143 is lawful,

even though it may not be [fully] cooked.1144

e juice of grapes, when it is cooked until two-thirds of it has

gone from it, is lawful, even if it is strong.

ere is no harm in producing mead inside a gourd, a fresh

pitcher, a pitcher smeared with pitch or a hollowed piece of wood
(naqīr).

When wine becomes vinegar it is lawful, irrespective of [whether]

it changes into vinegar on its own or due to something cast into it. It
is not disapproved to make [wine] into vinegar.

580
 ṢAYD WA DHABĀ’IḤ – GAME & ANIMALS
FOR SLAUGHTER

Hunting with a trained dog as well as with a lynx,1145 a falcon and

with all trained predators, is permitted.

e training of a dog is that it refrains [from] eating three

times,1146 and the training of a falcon is that it returns when you
summon it.

If someone sets his trained dog, his falcon or his hawk on game,
and pronounces the name of Allah, exalted is He, on sending it, and
it seizes the game and wounds it, and [the game] dies, eating it is

581
lawful. But if the dog or lynx eats of it, it is not eaten. If, however,
the falcon eats of it, it may be eaten.

If the person who loosed [the trained animal] finds the game
[still] alive, it is incumbent upon him to slaughter it, and if he
refrains from slaughtering it until it dies, it is not to be eaten.

If the dog strangles [the game and it dies] and it did not wound it,
it should not be eaten.

If an untrained dog, the dog of a Magian, or a dog over which the

name of Allah, exalted is He, has not been mentioned, shares in
[killing the game], it should not be eaten.

When a person shoots an arrow at game and says the name of

Allah, exalted is He, whilst shooting, if the arrow wounds it and it
dies, whatever it hits [and kills] may be eaten. If he finds it alive, he
slaughters it, and if he refrains from slaughtering it, it is not to be
eaten.1147

582
 When the arrow hits the game and [the game] carries on [it] until
it disappears and he continues searching until he finds it dead, it may
be eaten. But if he gave up pursuing it, and then later found it dead,
it is not to be eaten.

If someone shoots game and [the game] ends up in water, it is not

to be eaten, and likewise if it lands on a roof or a mountain, then
later falls down off it onto the ground, it is not to be eaten. However,
if it initially ended up on the ground, it may be eaten.1148

Whatever a blunt object (mi‘rāḍ) hits with its width is not to be

eaten,1149 but if it [merely] wounds it, it may be eaten.1150

Whatever a pellet1151 hits, it is not to be eaten, if it dies from it.

When someone shoots [an arrow] at game and severs a limb from
it, the game may be eaten, but the [severed] limb is not to be eaten. If
[the arrow] cuts it into three and most of it is connected to the
posterior, [then] all [of it] may be eaten,1152 but if most of it is of that

583
which is connected to the head, [then] the larger [part] may be
eaten.1153

e game of the Magian, the apostate, the idolater and the person
in iḥrām is not to be eaten.

Whoever shoots [an arrow at] game and hits it, but does not
weaken it and does not take it out of the boundary of prohibition,1154
and another [person] casts [an arrow] at it and kills it, then it belongs
to the second [hunter], and it may be eaten.

But if the first [hunter] had weakened it, and the second [hunter]
shoots at it and kills it, it belongs to the first [hunter], but it is not to
be eaten.1155 e second [hunter] compensates for its value to the
first less whatever the wounding of it had diminished.1156

It is permitted to hunt the animal whose meat is [lawfully] eaten

or not [lawfully] eaten.

584
 e animal (dhabīḥah) slaughtered by a Muslim and by a person
of the People of the Book (kitābī) is lawful,1157 but the animal
slaughtered by an apostate, a Magian, an idolater and a person in
iḥrām is not to be eaten.

If the slaughterer deliberately omits saying the name of Allah, the

slaughtered animal is [deemed to be] something that has died1158 and
is not to be eaten, but if he leaves it out of forgetfulness it may be
eaten.

On Dhabḥ – Slaughtering

Slaughter (dhabḥ) is [made] between the throat1159 and the upper

bone of the chest.1160

e vessels that are cut in slaughter are four:

1. e windpipe or trachea (ḥulqūm),1161
2. e gullet or oesophagus (marī’),1162
3. And the two jugular veins (wadjān).1163

If someone cuts them [all], eating [of that slaughtered animal] is

lawful. If he cuts the majority of them, it is likewise, according to

585
Abū Ḥanīfah, may Allah have mercy on him, but they,1164 may Allah
have mercy on them, said that cutting the windpipe, the gullet and
[either] one of the two jugular veins is essential.

Slaughtering is permitted with splinters, sharp stones and with

anything that causes blood to pour forth, except fixed teeth and fixed
nails.1165

It is recommended for the slaughterer to sharpen his blade.

Whoever reaches the spinal cord with the knife and severs the
head, that is disapproved for him, but the animal he slaughtered may
be eaten.

If someone slaughters a sheep or goat [beginning] from its nape,

if it remains alive until [all] the vessels are cut, it is permitted, but it
is disapproved.

But if it dies prior to cutting [all] of the vessels, it is not to be

eaten.

586
 Whatever game becomes tame1166 is slaughtered by dhabḥ.
Grazing livestock which have become wild1167 are slaughtered by
stabbing and wounding.

Naḥr1168 is recommended for the camel, but if one slaughters it by

dhabḥ it is permitted but disapproved.

Dhabḥ is recommended for oxen, and sheep and goats, but if

someone performs naḥr on them it is permitted but disapproved.

Whoever slaughters a she-camel by naḥr or slaughters a cow,

sheep or goat by dhabḥ, and finds a dead foetus in its uterus, [that
foetus] is not to be eaten, [irrespective of whether] it is definable or
not.

It is not permitted to eat any predator which has canine teeth, and
[any] bird which has talons.

ere is no objection [to eating] the agrarian crow,1169 but the

speckled crow,1170 which eats carrion, is not eaten.

587
 It is disapproved to eat hyenas, lizards and all insects.

It is not permitted to eat the meat of the domestic donkey or [of ]

the mule, and it is disapproved to eat the meat of the horse according
to Abū Ḥanīfah, may Allah have mercy on him.

ere is no harm in eating rabbit.

When that, the meat of which is not eaten, is slaughtered by

dhabḥ, its hide and flesh become [physically] pure, except [the hide
of ] the human1171 and [of ] the pig,1172 and sacrifice (dhakāh) does
not work [for purification] in either of the two.

Animals of the water are not to be eaten except for fish and it is
disapproved to eat those [fish] which [have died and] float on the
surface.

ere is no objection to eating the hagfish and the eel [which is

called in Persian] the mārmāhī and it is permitted to eat locusts and

588
there is no [need to] sacrifice them.

589
 UḌḤIYAH – SACRIFICE

Sacrifice is incumbent upon every free Muslim man, who is

resident and [financially] well-off, on the day of Adḥā.1173

He should slaughter [an animal] on his own behalf and on behalf

of his minor child. He should slaughter on behalf of each of them a
sheep or goat or he should slaughter a camel or a cow on behalf of
seven [persons].

It is not incumbent on the needy and the traveller to sacrifice.

e time of the sacrifice begins at dawning of the fajr on the day

of sacrifice (naḥr), except that it is not permitted for those living in
cities to slaughter until the Imam has offered the ‘Īd prayer. With

590
regards to village inhabitants, they may slaughter after the dawning
of the fajr.

[Slaughtering] is permitted for three days; the day of sacrifice

(naḥr) and two days after it.

One may not sacrifice blind, one-eyed and lame [animals] which
cannot walk to the place of sacrifice, nor [does one sacrifice]
emaciated [animals].

It is not sufficient [to sacrifice] an [animal] which has a severed

ear or tail, nor the [animal] a major portion of whose ear or tail is
missing. If the larger [part] of its ear or tail remains then [that] is
permitted.

It is permitted to sacrifice a hornless [animal], one that is gelded,

scabbed or mad.

Sacrifice is [only] of camels, bovine animals and sheep and goats

(ovines); it is sufficient for them each to be thanī1174 or above, other
than the sheep for which a jadha‘1175 suffices.

591
 One may eat from the meat of the sacrifice, feed [it to] those who
are not in need and to the needy, and one may [also] store [some of ]
it.

It is recommended not to give less of it in ṣadaqah than a

third.1176 He may give its hide as ṣadaqah or [he may] make an
instrument from it which may be used in the house.

It is better for someone to slaughter his own sacrifice [animal]

with his own hands, if he slaughters well.

It is disapproved for one of the People of the Book (kitābī) to

slaughter it.

When two men err and each of them slaughters the sacrificial
animal of the other, it suffices on behalf of both of them, and there is
no liability against either of the two.

592
 AYMĀN – OATHS

ere are three types of oath:

1. A false oath (yamīn ghamūs),
2. An enacted oath (yamīn mun‘aqidah), and
3. An unintentional oath (yamīn laghw).

e false oath is the oath about a past matter by which a lie is

intended. is is the oath by which its exponent becomes sinful.
ere is no expiation for it other than repenting and seeking
forgiveness.

e enacted oath is the oath someone swears about a future

matter that he will do it or not do it. If he violates that, expiation is
binding upon him.

593
 e unintentional oath is that someone swears about a past affair
thinking that it was as he says, but the matter was contrary to that.
is [type of ] oath, we hope that Allah will not take its exponent
to task for it.

Someone who intends an oath, and someone who is coerced or

absent-minded are the same [with regards to oath-taking]; whoever
does that which he swore an oath to do under coercion or absent-
mindedly it is [deemed] to be the same.

e oath [is made]:

1. By Allah ,

2. Or by one of His names like ar-Raḥmān (the All-Merciful)

and ar-Raḥīm (the Most Merciful),

3. Or by one of the attributes of His essence, like ‘the honour

of Allah’, ‘His majesty’ and ‘His magnificence’,
but not by saying ‘by the knowledge of Allah’ for that is not
[counted as] an oath.

594
 If someone swears an oath by the attributes of action, such as ‘the
wrath of Allah’ and the ‘displeasure of Allah’, he is not considered an
oath-taker (ḥālif).

Whoever swears an oath by [something] other than Allah is

not an oath-taker (ḥālif), such as [by] the Prophet , the Qur’ān
and the Ka‘bah.

e oath is [made with] the letters of oath, and the letters of oath
are three:
1. e wāw ( ), like one’s saying, “wa’llāhi – by Allah!”,
2. e bā’ ( ), like one’s saying, “bi’llāhi – by Allah!”, and
3. e tā’ ( ), like one’s saying, “ta’llāhi – by Allah!”.

Sometimes, the letters of oath are implied so that one is [still] an

oathtaker (ḥālif), like one’s saying, “Allah!1177 I will not do such-and-
such.”

Abū Ḥanīfah, may Allah have mercy on him, said that when one
says, “wa ḥaqqi’llāhi – by the right of Allah!” he is not an oath-taker
(ḥālif).

595
 When he says:
1. “I swear,”
2. “I swear by Allah,”
3. “I swear an oath,”
4. “I swear an oath, by Allah,”
5. “I testify,” or
6. “I testify, by Allah,” then he is an oath-taker (ḥālif).

Likewise, his saying,

1. “By the compact of Allah,” and
2. “By His covenant.”

If he says, “A pledge is binding on me,” or “e pledge of Allah

[is binding on me],” then it is an oath.

If he says, “If I do such-and-such, then I am a Jew, Christian,

Magian, idolator or a disbeliever,” it is an oath.

596
 If he says, “Upon me be the wrath of Allah,” or “…His
displeasure,” then he is not an oath-taker (ḥālif), and likewise, if he
says, “If I do such-and-such, then I am a fornicator, drunkard or
usurer,” then is not an oath-taker (ḥālif).

Expiation for the Breach of Oath

e expiation for [the breach of ] an oath is to set a slave free, for

which that [slave] who is sufficient in the [case of ] injurious
comparison (ẓihār) suffices.1178 If he wants, he may clothe ten
destitute people, each with one garment or more, and the minimum
is that in which prayer is valid. If he wants, he may feed ten needy
persons, like the feeding for the expiation of injurious comparison
(ẓihār).1179 If he is unable [to fulfil] any of these three things, he
should fast for three consecutive days.

If someone advances the expiation prior to the violation [of the

oath], it does not suffice him.1180

Whoever makes an oath for [to perpetrate] a wrong action, for

example that he will not pray, that he will not speak to his parents, or

597
that he will kill so-and-so, should render himself a violator [of the
oath] and pay the expiation for [the violation of ] his oath.1181

When a non-Muslim swears an oath, then later violates [it] in the

condition of kufr, or after becoming Muslim, there is no [guilt of ]
violating [an oath] upon him.

Whoever prohibits himself something which he owns, it does not

become prohibited [for him], but if he [then] permits [himself ] it, an
expiation of the [breach of ] oath is due from him.

If someone says, “All permissible [things] are unlawful to me,”

then that is [understood as being] in terms of food and drink, unless
he intends otherwise.

Whoever vows an unconditional vow must fulfil it.

If someone attaches a vow to a condition and the condition exists,

then it is incumbent upon him to honour that very vow.

598
 It has been reported that Abū Ḥanīfah, may Allah have mercy on
him, retracted that [verdict] and said, “When someone says, ‘If I do
such-and-such, then a ḥajj is obligatory upon me,” or “…fasting for a
year…,” or “…[giving as] ṣadaqah whatever I own…,” it is sufficient
for him to expiate the oath. is is also the verdict of Muḥammad,
may Allah have mercy on him.

Swearing an Oath Not to Enter a House, etc.

Whoever swears an oath [that] he will not enter any house, and
he enters the Ka‘bah, a mosque, synagogue or church has not violated
[his oath].

Whoever swears an oath not to speak, then recites the Qur’ān in

the prayer has not violated [his oath].

Whoever swears an oath [that] he will not don this [particular]

garment whilst wearing it and he removes it immediately, has not
violated [his oath], and likewise, if he swears an oath that he will not

599
mount this [particular] animal whilst mounted on it and he
immediately dismounts [from it], has not violated [his oath], but if
he remains [mounted] for a moment [longer], he has violated [his
oath].

Whoever swears an oath [that] he will not enter this house whilst
inside it, has not violated [his oath] by sitting [there] unless he exits
[it and] later enters [it] again.

Whoever swears an oath [that] he will not enter any house, and
[then] he enters a derelict building, has not violated [his oath].

Whoever swears an oath [that] he will not enter this [particular]

house,1182 and he enters it after it had been demolished and become
desolate, has violated [his oath].

Whoever swears an oath [that] he will not enter this [particular]

home,1183 and he enters it after it has been demolished, has not
violated [his oath].

Whoever swears an oath that he will not speak to the wife of so-
and-so, and that person divorces her, then later [the person who
swore the oath] speaks to her, he has violated [his oath].

600
 Whoever swears an oath that he will not speak to the slave of so-
and-so, or that he will not enter the house of so-and-so, and [then]
that person sells his slave or his house, then later [the person who
swore the oath] speaks to the slave and enters the house, he has not
violated [his oath].

If one swears an oath that he will not speak to the owner of this
[particular] large outer garment (pallium), and [the owner] sells it,
then later [the person who swore the oath] speaks to him, he has
violated [his oath], and likewise, when he swears an oath that he will
not talk to this [particular] youth and he speaks to him after [that
youth] becomes an old man, he has violated [his oath].

Swearing an Oath Not to Eat Food

If one swears an oath that he will not eat the meat of this
[particular] foetus [of an animal], [then later] it [develops and]
becomes a ram and he eats [of ] it, he has violated [his oath].

If he swears an oath that he will not eat from this [particular]

date-palm, [the oath relates to] its fruit.

601
 Whoever swears an oath that he will not eat this [particular]
unripe date, then [later] it ripens and he eats it, he has not violated
[his oath]. And if he swears an oath [that] he will not eat any unripe
date and he eats a ripe one, he has not violated [his oath].

If he swears an oath that he will not eat a fresh date and he eats
an unripe one [which is] ripe at its rear, he has violated [his oath],
according to Abū Ḥanīfah, may Allah have mercy on him.

Whoever swears an oath that he will not eat meat and then eats
the meat of fish, has not violated [his oath].

If someone swears an oath that he will not drink from the [river]
Tigris1184 and drinks a pot from it, he has not violated [his oath]
until he sips a sip from it [with his mouth], according to Abū
Ḥanīfah, may Allah have mercy on him.

If someone swears an oath that he will not drink from the water
of the [river] Tigris1185 and drinks a pot from it, he has violated [his
oath].

602
 Whoever swears an oath that he will not eat of this [particular]
wheat and then eats of its bread, he has not violated [his oath].

If he swears an oath that he will not eat of this [particular] flour,

and then eats of its bread, he has violated [his oath], but if he puts it
into his mouth just as it was, [then] he has not violated [his oath].

If someone swears an oath that he will not speak to so-and-so,

and he talks to him such that he could have heard him but that he
was asleep, he has violated [his oath].

If he swears an oath that he will not speak to him without his

permission, and [the other] permits him but he does not know of the
permission to him such that he talks to him, he has violated [his
oath].

When the governor (wālī) requires from a man on oath to tell him
of every indecent person who enters the city, then that applies to [the

603
term of ] his [own] governorship only.1186

Whoever swears an oath that he will not mount the animal of so-
and-so, and then mounts the animal of his authorised slave, has not
violated [his oath].

Whoever swears an oath that he will not enter this [particular]

home then stands on its roof or enters its foyer, has violated [his
oath], but if he stands in the arch of the door in such a way that if the
door was closed he would be [on the] outside, [then] he has not
violated [his oath].

Whoever swears an oath that he will not eat roasts, then that
applies to meat [only] and not to aubergines and carrots.

Whoever swears an oath that he will not eat cooked food, then
that applies to whatever meat is cooked.1187

604
 Whoever swears an oath that he will not eat heads, then his oath
applies to what is cooked in ovens and sold in the city.

Whoever swears an oath that he will not eat bread, then his oath
applies to what city inhabitants are accustomed to with regards to
eating bread. us, if he eats qaṭā’if bread (a pastry), or rice bread in
Iraq,1188 he has not violated [his oath].

Whoever swears an oath that he will not sell, buy, or lease

[anything], and then authorises an agent who does that [for him], he
has not violated [his oath].

Whoever swears an oath that he will not sit on the ground, then
sits on a rug or on a mat, he has not violated [his oath].

Whoever swears an oath that he will not sit on a [particular] bed,

then sits on a bed upon which there is a rug, he has violated [his
oath],1189 but if he places another bed on the top of that [particular
bed] and sits upon that, he has not violated [his oath].1190

605
 If someone swears an oath that he will not sleep on a [particular]
mattress and then does sleep upon it, and a blanket was [spread] over
it, he has violated [his oath], but if he places another mattress on the
top of it and sleeps upon that, then he has not violated [his oath].

Whoever swears an oath and says, “in shā’ Allāh (Allah-willing)”

attached to his oath, there is no violation [of the oath] upon him.1191

Swearing an Oath on Time

If one swears an oath that he shall definitely come to him if he

can, then that is [dependent] upon the ability of health and not [of ]
capacity.1192

If he swears an oath that he shall not talk to him for an appointed

time (ḥīn) or a period (zamān), or for the appointed time (al-ḥīn) or
the period (al-zamān), then that is for six months. And it is likewise
[if he uses the word] time (ad-dahr), according to Abū Yūsuf and
Muḥammad, may Allah have mercy on them.

606
 If he swears an oath that he will not speak for some days (ayyām),
he is [bound by the oath] for three days.

If he swears an oath that he will not speak to him for days (al-
ayyām), then he is [bound] for ten days, according to Abū Ḥanīfah,
may Allah have mercy on him. Abū Yūsuf and Muḥammad, may
Allah have mercy on them, however, said that he is [bound] for the
days of the week.1193

If he swears an oath that he will not speak to him for months, he

is [bound] for ten months, according to Abū Ḥanīfah, may Allah
have mercy on him, but Abū Yūsuf and Muḥammad, may Allah have
mercy on them, said that he is [bound] for twelve months.

If he swears an oath that he will not do such-and-such, he is to

abstain from it forever.

607
 If he swears an oath that he will definitely do such-and-such and
he does it once, he has fulfilled his oath.

Whoever swears an oath [that] his wife will not go out without
his permission, and he gives her permission once, so she exits and
returns, then later she goes out again another time without his
permission, he has violated [his oath]. ere must be a [separate]
separated authorisation for each time she goes out.

If he says, “…unless I permit you,” and he permits her once

[only], then later she goes out after that without his permission, he
has not violated [his oath].

When someone swears an oath that he will not eat breakfast, then
breakfast [refers to] the meal from the dawning of the fajr up until
ẓuhr [time], supper1194 (‘ashā’) is [the meal] from the ẓuhr prayer
until midnight and the pre-dawn meal (saḥūr) is [the meal taken]
between midnight up until the dawning of the fajr.

608
 If someone swears an oath that he will definitely pay off his debt
soon (qarīb),1195 then it [is whatever] is less than a month,1196 but if
he said, “… later (ilā ba‘īd),” then it is more than a month.1197

Whoever swears an oath [that] he will not reside in this

[particular] home, and then he himself leaves it but keeps his family
and luggage there, he has violated [his oath].

Whoever swears an oath [that] he will definitely rise up to the sky,

or [that] he will definitely convert this [particular] stone into gold,
his oath takes effect and he has violated [it] immediately following
[the making of ] it.1198

Whoever swears an oath [that] he will definitely pay off his debt

to so-and-so that [very] day,1199 and he pays him, then later that
person finds that some of it is counterfeit, false or owned [by
someone else], the person who swore the oath has not violated [his
oath], but if [the creditor] finds it [completely composed of ] lead or
spurious, [the person who swore the oath] has violated [his oath].

609
 Whoever swears an oath [that] he will not take his debt dirham
by dirham,1200 and he does take some of it, he has not violated [his
oath] until he takes all of it separately.

If he takes [repayment of ] his debt in two [separate] weighings

between which he did not occupy [himself in anything] other than
the act of weighing, [then] he has not violated [the oath], and that is
not [considered to have been done] with separation.1201

Whoever swears an oath [that] he shall definitely come to Baṣra

[or any other specified city or location] and he does not come, before
he dies, he will have violated [his oath] in the final stage of [all] the
stages of his life.

610
 DA‘WĀ – LAWSUITS

e plaintiff (mudda‘ī) is whoever is not compelled [back] into a

litigation whenever he abandons it, but the defendant (mudda‘ā
‘alayhi) is whoever is compelled to litigation.

e suit is not accepted unless [the plaintiff ] mentions something

specific in its type and [in] its amount. us, if it is an item in the
possession of the defendant, he is charged to present it so that he
may point it out for the claim, but if it is not present, he must
mention its value.

If [the plaintiff ] sues for real estate, he should define it and [also]
mention that it is in the possession of the defendant, and that he (i.e.
the plaintiff ) is seeking it. If it is a personal right, [the plaintiff ]
should mention that he is seeking it.

611
 When the suit is established, the judge (qāḍī) questions the
defendant in relation to it. If he confesses, [the judge] decides against
him in it, but if he denies, [the judge] demands evidence from the
plaintiff. If [the plaintiff ] produces [the evidence], [the judge]
decides by it, but if [the plaintiff ] is unable to do that and he
demands an oath from his adversary, [the defendant] is made to
swear an oath upon the suit.

If [the plaintiff ] says, “I have evidence present,” and he demands

an oath, [the defendant] is not made to swear an oath, according to
Abū Ḥanīfah, may Allah have mercy on him.

e oath is not returned to the plaintiff.1202

Evidence from the person who owns the property is not accepted
in unspecified ownership.1203

When the defendant refuses to take the oath, the judge decides
against him on the refusal to take the oath (nukūl), and whatever has
been claimed against him becomes binding upon him.

612
 e judge ought to say to him: “I offer you [to take] the oath
thrice, so if you do take the oath [it is better], but if not, I shall
decide [the case] against you regarding whatever he has claimed.”
When [the judge] has repeated the proposal three times, he
decides against him on the refusal to take the oath (nukūl).

If the claim is of marriage, the defendant should not be

administered an oath, according to Abū Ḥanīfah, may Allah have
mercy on him.

He will not be made to swear an oath in [the cases of ] marriage

(nikāḥ),1204 a revocable divorce (raj‘ah),1205 the rescission of an oath
to abstain from sexual intercourse with one’s wife for a period of four
months or more (īlā’),1206 slavery (riqq),1207 the paternity case with a
slave-woman (istīlād),1208 paternity (nasab),1209 clientage (walā’),1210
cases involving ḥadd punishments1211 and imprecation by both
parties (li‘ān).1212

613
 ey,1213 may Allah have mercy on them, however, said that one
is administered an oath in all of these [cases] except in [the cases of ]
ḥudūd and li‘ān.

When two persons claim one [and the same] item which is in the
possession of another, and each of the two alleges that it is his, and
both of them establish evidence, [the judge] decides in that [to divide
it] between both of them.1214 If each [one] of the two claim to be
married with one [and the same] woman, and both of them provide
evidence [to his own claim], then he (the judge) does not decide on
[the basis of ] either of the two pieces of evidences, and he resorts to
the confirmation of the woman of either of the two [claimants].

If two persons make a claim, such that each of the two [claims
that he] bought this particular slave from [a third party], and both of
them provide evidence, then each of the two has a choice:
1. If he wants, he may take half of the slave for half of the
price,1215 or
2. If he wants, he may abandon [the claim].

614
 If the judge decides between the two1216 and one of them says, “I
do not want [my half share of the slave],” it is not valid for the other
to take the whole of him.

If each of the two mentions a date,1217 then [the slave] belongs to

the earlier of the two,1218 but if they do not mention a date and one
of the two has [current] possession [of the slave], he has more right
to him.

If one of the two claims [to have acquired the slave through]
‘purchase’ and the other [claims to have been given him as a] ‘gift’
and they both took ‘possession’, and both of them establish evidence
with no date [of ownership] for either of them, then the purchase has
more right than the other [claim].

If one of the two claims [to have acquired the slave by] purchase
and the woman claims that [the other party] married her by [giving]
him [as a dowry to her],1219 then both of them are equal [in their
claims].

615
 If one of the two claims [the slave was placed with him as a]
pledge along with [his having taken] possession, and the other
[claims] [he was given him as a] gift along with [his having taken]
possession, then the [person given him as a] pledge has more right.

If two people who do not have possession establish evidence of

[ownership of ] property and a date [of ownership], then the one with
the earlier date has more right.

If both of them claim buying from one [and the same] person,
and both of them establish evidence for two [different] dates, then
the [purchaser who bought it on the] first [date] has more right.1220

If each of the two establish evidence of purchasing from the other

[person], and both of them mention one [and the same] date, then
both of them are equal.1221

If an individual not having possession provides evidence of a dated

ownership and someone having possession [also] establishes evidence
of prior ownership, [the latter] has more right.

616
 If an individual not having possession and someone having
possession both provide evidence regarding offspring1222 [of an
animal], then the person with possession has more right [to the
claim].

It is likewise [the case with] the weaving of clothes which are

woven only once, and every cause of ownership that does not
repeat.1223

If the individual not having possession provides evidence

regarding unqualified ownership, and the one with possession [of it
provides] evidence of purchase from him, the one with possession has
more right [to it]. If each of the two provide evidence of purchasing
[it] from the other and neither of them has a date [of purchase], both
evidences will contradict1224 each other.1225

If one of the two claimants produces two male witnesses, and the
other [produces] four, both of them are equal.1226

617
 Whoever files for retaliation (qiṣāṣ) against someone, and [the
defendant] denies [it], is administered an oath. If he refuses to take
the oath which is for retaliation for something other than for
homicide,1227 [the sentence of ] retaliation is binding upon him, but
if he refuses to take the oath for retaliation for homicide, he is
detained until he confirms [the charge] or takes the oath.

Abū Yūsuf and Muḥammad, may Allah have mercy on them, said
that compensatory payment (arsh) is binding upon him in both
[cases].

When the plaintiff says, “I have evidence with me,” it is said to his
adversary, “Give him a guarantor for yourself [within] three days.”1228

If [the defendant] does so [it is better], otherwise, the order is

given for someone to assiduously accompany him, unless he is a
stranger on a journey, in which case he is assiduously accompanied
for the measure of [the court] session of the judge.

618
 If the defendant says, “Such-and-such an absent person has
entrusted me with this thing,” or “…he pledged it with me,” or “…I
expropriated it from him,” and he produces evidence for that, then
there remains no litigation between him and the plaintiff.

If, however, he says, “I purchased it from so-and-so who is

absent,” he remains a litigant.

If the plaintiff says, “It was stolen from me,” and produces
evidence, and the one in possession of it says, “So-and-so deposited it
with me,” and [also] produces evidence, the litigation is not [deemed]
abandoned.

If the plaintiff says, “I purchased it from so-and-so,” and the

person in whose possession it is (i.e. the defendant) says, “at
[person] so-and-so1229 deposited this [item] with me,” the litigation
is dropped without [production of ] evidence.

Oaths in Lawsuits

619
 e oath is [sworn] by Allah, exalted is He, and none other. It
may be emphasised by mentioning His attributes.

No oath is administered [on the pain of ] divorce or setting

[slaves] free.1230

A Jew is administered the oath, “[By] Allah Who revealed the

Tawrāh to Mūsā (Moses) ,” a Christian [the oath], “By Allah
Who revealed the Injīl to ‘Īsā ( Jesus) !,” and a Magian [the
oath], “By Allah Who created fire.” ey are not administered the
oaths in their [respective] houses of worship.

It is not incumbent to strengthen the oath upon the Muslim by

[requiring it at a] time1231 or location.1232

Whoever claims that he purchased from this [defendant] his slave

for a thousand [dirhams], and [the defendant] denies [that], [the
defendant] is required to swear an oath by Allah that: there is no

620
established sale between the two of you regarding [the slave]. He is
not required to swear the oath, “By Allah, I have not sold.”

In [the case of ] expropriation, he is required to swear an oath by

Allah that: he has no right against you to take back this item, nor [to
require] the return of its value. He is not required to swear the oath,
“By Allah, I have not expropriated [it].”

In [the case of ] marriage, [the oath required is], “By Allah, there
is currently no marriage enacted between the two of you.”

In the case of a claimed divorce, [the oath required is], “By Allah
that, as she describes, she is not finally divorced from you at this
time.” He is not required to swear an oath by Allah that he had not
divorced her.

Miscellaneous Claims

If a building is in the possession of a man [but] two people lay

claim to it, one [claiming] all of it and the other [claiming] a half of

621
it, and both of them produce evidence, then the claimant of the
whole [of the building] has three-quarters of it and the claimant of
the half [of the building] has a quarter of it, according to Abū
Ḥanīfah, may Allah have mercy on him. ey,1233 may Allah have
mercy on them, however, said that it is [divided] between them both
in thirds.1234

If the building is in the possession of both of them, it is

surrendered to the claimant of the whole, a half of it by way of legal
judgement, and a half of it without legal judgement.

When two people have a dispute regarding an animal, and each of

them produces evidence that it was born with him, and both of them
mention a [different] date, and the age of the animal corresponds to
one of the two dates, then [that claimant] has more right [to the
animal], but if that [also] becomes confusing, then it is [shared]
between the two of them.

622
 When both of them dispute regarding an animal, one of the two
being mounted upon it and the other holding its bridle, then the
rider has more right [to it]. Similarly, when both of them dispute a
camel, and upon it there is the load of one of them, the owner of the
load has more right [to it]. Similarly, when both of them dispute a
shirt [when] one of them is wearing it and the other is holding on to
its sleeve, the one wearing has more right [to it].

When two traders dispute about a sale in which the buyer claims a
price and the seller claims more than that [amount], or the seller
acknowledges an amount of the commodity and the buyer claims
more than that, and one of the two produces evidence, [the judge]
decides in favour [of the one who produces evidence]. If each of them
produces evidence, the evidence that establishes the excess is stronger.
If neither of the two have evidence, it is said to the buyer, “Either you
agree on the price that the seller claims, or we repeal the sale,” and it
is said to the seller, “Either you submit that commodity which the
buyer claims, or we repeal the sale.”

623
 If both of them are displeased, the judge (ḥākim) requires an oath
from each of them against the claim of the other. He begins with the
oath of the buyer. When both of them have sworn [their respective]
oaths, the judge repeals the sale between them.

If either of the two refuses to take the oath, the claim of the other
is binding upon him.

If both of them disagree about the deadline,1235 the option

stipulated in the contract (khiyār al-sharṭ),1236 or the furnishing of a
portion of the price,1237 then there is no swearing of oaths between
them. e [legally decisive] statement is the statement of the one
who denies the option (khiyār) and the deadline, with his oath.

If the object of sale (mabī‘) perishes,1238 and then later they differ
regarding the price, they do not swear oaths, according to Abū
Ḥanīfah and Abū Yūsuf, may Allah have mercy on them. e [legally
decisive] statement is the statement of the buyer with regards to the
price. Muḥammad, may Allah have mercy on him, however, said that
they both swear oaths, and the sale is annulled upon the value of the
[commodity] that has perished.

624
 If one of two slaves [being sold together] perishes,1239 then later
they both [the buyer and seller] differ about the price [of that slave],
they do not take oaths, according to Abū Ḥanīfah, may Allah have
mercy on him, unless the seller consents to abandon the share of the
[slave] who has perished. Abū Yūsuf, may Allah have mercy on him,
said that they both swear oaths. e sale is repealed with respect to
the living [slave] and to the value of the [slave] who perished, and
that is [also] the verdict of Muḥammad, may Allah have mercy on
him.1240

When the two spouses disagree about the dowry, the husband
claiming that he married her for a thousand [dirhams], and she
saying, “You married me for two thousand,” whichever of the two
produces evidence, his [or her] evidence is accepted. If both of them
produce evidence together, the [legally decisive] evidence is that of
the woman, but if she does not have [any] evidence, [then] they both
take oaths, according to Abū Ḥanīfah, may Allah have mercy on him,
and the marriage is not repealed, but it is adjudged that the
customary dowry [a woman of her standing would receive] (mahr al-
mithl) [be paid].

625
 If it is the same as what the husband acknowledges, or less [than
that amount], [the judge] decides according to what the husband
says. If it is the same as what the wife claims, or more [than that],
[the judge] decides according to what the wife claims. If the
customary dowry [a woman of her standing would receive] is more
than what the husband acknowledges and less than [that] which the
wife claims, [the judge] gives judgement that she is to receive the
customary dowry [a woman of her standing would receive].1241

When two parties1242 disagree with regards to a lease before the

objective is achieved, they take oaths and repay each other.1243

If they differ after the achievement [of the objective], they do not
swear oaths, and e [legally decisive] statement is the word of the
employer.1244

If they differ after the fulfilment of a portion of what has been

contracted upon, they take oaths and the contract regarding the
remainder is repealed. e [legally decisive] statement about what is

626
already past, is the statement of the employer [together] with his
oath.

When a master and a slave who has contracted to buy his freedom
(mukātab) differ with regards to the property of the contract to buy
his freedom (kitābah), they do not swear oaths, according to Abū
Ḥanīfah, may Allah have mercy on him.1245 ey,1246 may Allah have
mercy on them, however, say that both of them swear oaths and the
contract to buy his freedom is annulled.

When spouses differ with regards to household goods, then

whatever is useful to men is for the man, and whatever is useful to
women is for the woman, and whatever is useful to both of them is
for the man.

If either of the two [spouses] dies, and his heirs differ with the
other [spouse], then whatever is useful to men and women is for the
survivor of the two.1247

Abū Yūsuf, may Allah have mercy on him, said that the
woman1248 is given the like of what she would normally be furnished

627
with, and the remainder is for the husband.1249

When a man sells a slave-woman and she bears a child and the
seller claims him, then if she had delivered him within less than six
months from the day that he had sold her, he is the son of the seller,
and his mother is umm al-walad to him [the seller]. e sale is
annulled and the payment [is] returned. If the purchaser claims him
[together] with the claim of the seller or [even] after it, then the
claim of the seller is more rightful.

If she bears him after more than six months but less than two
years, the claim of the seller is not accepted for that unless the buyer
confirms it.1250

If the child [of the slave-woman] dies and the seller claims him,
and she had delivered him in less than six months, the paternity [of
the seller] is not established, nor is the mother declared umm al-
walad.

628
 If the mother dies and the seller claims [the child], and she had
delivered him in less than six months, his paternity of the child is
established, and the seller takes him [into his custody] and returns
the full payment [to the purchaser], according to the verdict of Abū
Ḥanīfah, may Allah have mercy on him. ey,1251 may Allah have
mercy on them, say that he returns the share of the child not the
share of the mother.1252

Whoever claims the paternity of one of a pair of twins, his

paternity of both of them is established.1253

629
 SHAHĀDĀT – TESTIMONY

Testimony is an obligation which the witnesses are bound to

discharge, and it is not permissible for them to conceal it when the
plaintiff demands [it] of them.

In testimony concerning ḥudūd, the witness is given the choice

between concealing or disclosing, but concealing is better, except that
it is incumbent upon him to testify with regards to the property in
[the ḥadd of ] theft, and so he says, “He took the property,” and does
not say, “He stole.”

Testimony is of [various] levels, of which there is testimony

concerning unlawful sexual intercourse. For this four men are a
condition and the testimony of women is not accepted for it.

630
 Testimony for the other infringements of the limits (ḥudūd)1254
and retaliation (qiṣāṣ); for them, the testimony of two men is
accepted and the testimony of women is not accepted.

In other rights, the testimony of two men or one man and two
women is accepted, irrespective of whether that right is a property or
something other than property, such as marriage, divorce, agency and
bequests (waṣiyyah).

For childbirth, virginity and feminine blemishes in areas which

men do not behold, the testimony of a single woman is accepted.1255

In all of these [cases], being a credible witness (‘adālah)1256 and

wording [indicating] testimony (shahādah)1257 are necessary, so that
if the witness does not mention the wording of testimony and says, “I
know…,” or “I am sure…,” his testimony is not accepted.

631
 Abū Ḥanīfah, may Allah have mercy on him, said that the judge
(ḥākim) confines himself to the apparent probity (‘adālah) of the
Muslim, except in contravention of the legal limits (ḥudūd) and
[cases of ] retaliation (qiṣāṣ) where he investigates the witnesses.1258
And if the litigant impugns them, [the judge] investigates them. Abū
Yūsuf and Muḥammad, may Allah have mercy on them, say that it is
important that he investigates into them in private and in the open.

Whatever the witness undertakes [in testimony] is of two types:

First, that whose ruling is established by itself,1259 for example
sale, confession, expropriation, homicide and the judgement of the
judge (ḥākim). So, when the witness hears that1260 or sees it, it is
permitted [for him] to testify to it, even if he is not asked to testify.
He should say, “I testify that he sold [it],” and not say, “He has made
me a witness.”

632
 [Another] example of [testimony is the second type], that whose
ruling is not established of itself, for example, testifying to testimony.
So, when someone hears a witness testifying to something, it is not
permitted for [the second person] to testify to the testimony of [the
witness] unless [the witness] makes him a witness [to the testimony].
Likewise, if he hears him calling a witness to testify to his testimony,
it is not for the listener to bear witness to that.

It is not lawful for the witness, when he sees [his own] script,1261
to testify, unless he remembers the testimony [well].1262

Acceptable and Unacceptable Witnesses

Testimony is not accepted from:

1. e blind,
2. Slaves,
3. Someone convicted of ḥadd [punishment] for unsubstantiated
allegations of sexual misconduct (qadhf) – even if he repents,
nor is
4. e testimony of a father [in favour] of his child or his
grandchild [accepted], or
5. e testimony of a child [in favour] of his own parents or
grandparents.

633
 Testimony is not accepted from:
6. Either spouse [in favour] of the other, nor is
7. e testimony of a master [in favour] of his slave [accepted], or
[in favour] of his slave who has contracted to purchase his
freedom (mukātab), nor is
8. e testimony of a [business] partner [accepted, in favour] of
his partner concerning that in which they have partnership.

e testimony of a man [in favour] of his brother or [in favour] of

his paternal uncle is accepted.

Testimony is not accepted from:

9. An effeminate person (mukhannath),
10. A professional mourner (nā’iḥah),
11. A [professional] female singer,
12. Someone who is a drunkard for the sake of amusement,1263
13. Someone who has a bird hobby,1264
14. Someone who sings for the public,
15. Someone who practises major wrong actions to which ḥadd
[punishments] are attached,
16. Someone who enters the public baths without a loincloth,1265
17. Someone who consumes usury (ribā),

634
 18. Someone who gambles with backgammon and chess,1266 and
19. Someone who practises disgusting acts such as urinating in
the public roadway, eating on the path [etc.],
20. e testimony of someone who openly abuses the first
community (salaf) is [also] not accepted.

e testimony of the people of erroneous views (ahl al-ahwā’)1267

is accepted, except [that of ] the Khaṭṭābiyyah.1268

e testimony of the dhimmīs against each other is accepted, even

if their religions differ.
e testimony of a non-Muslim from a land at war with the
Muslims (ḥarbī) for or against a non-Muslim living under Muslim
governance (dhimmī) is not accepted.

If the good deeds [of a man] are predominant over [his] bad
deeds, and the man is one who abstains from major wrong actions,
his testimony is accepted, even though he may commit acts of
disobedience (minor wrong actions).

635
 e testimony of the uncircumcised, eunuchs and the illegitimate
[person] is accepted, and the testimony of a hermaphrodite is [also]
valid.

Conformity of Testimony

When evidence conforms to claims, it is accepted, but if it

contradicts them, it is not accepted.

e unanimity of two male witnesses in word and meaning is

taken into account, according to Abū Ḥanīfah, may Allah have mercy
on him. So if one of the two testifies for one thousand, and the other
for two thousand, their testimony is not accepted,1269 according to
Abū Ḥanīfah, may Allah have mercy on him. Abū Yūsuf and
Muḥammad, may Allah have mercy on them, however, say that it is
accepted for one thousand.1270

If one of the two testifies for one thousand, and the other for one
thousand five hundred, and the plaintiff claims one thousand five
hundred, their testimony is accepted for one thousand.

636
 When both of them testify that it was one thousand, and one of
them says, “He has [already] paid him five hundred of that,” their
testimony regarding the one thousand is accepted but his statement,
“He has paid him five hundred of that,” is not listened to unless
another [witness] testifies with him. It is essential for the witness that
when he learns that, he does not testify regarding the one thousand
until the plaintiff confirms that he has taken possession of the five
hundred.

When two [male] witnesses testify that Zayd was killed on the
day of sacrifice (naḥr) in Makkah, and two others testify that he was
killed on the day of sacrifice (naḥr) in Kufa, and they get together
with the judge (ḥākim), neither of the testimonies is accepted. If
either of the two [testimonies] precedes [the other] and [the judge]
gives judgement according to that, then later the other [testimony]
emerges, it is not accepted.1271

637
 e judge does not listen to testimony of invalidation (jarḥ) or
negation (nafy), and he does not issue a verdict based upon it, except
that which is a right [for someone].1272

It is not permitted for a witness to testify [regarding] that thing

which he did not see with his own eyes, except for paternity, death,
marriage, consummation and the jurisdiction of the judge. He has
the capacity to testify regarding these when he considers the one who
informs him of them to be reliable.

Testimony against testimony is permitted in [the case of ] every

right which does not lapse due to an ambiguity, but it is not accepted
in cases of ḥadd punishment and retaliation (qiṣāṣ).

e testimony of two [male] witnesses against the testimony of

two [other male] witnesses is permitted, but the testimony of one
[male witness] against the testimony of one [other male witness] is
not accepted.

638
 e procedure of testimony is that the witness of the source
(shāhid al-aṣl)1273 (or primary witness) says to the witness of the
subsidiary (shāhid al-far‘)1274(or secondary witness), “Testify to my
testimony that I bear witness that so-and-so, the son of so-and-so,
confirmed to me regarding such-and-such, and he has made me a
witness for himself.”

If he does not say, “He has made me a witness for himself,” it is

[still] valid.

e secondary witness, at the delivery [of his testimony], says, “I

testify that so-and-so confirmed to him regarding such-and-such,
and he said to me, ‘Testify to my testimony regarding that,’ hence I
testify to that.”

e testimony of the secondary witness is not accepted unless [all]

the primary witnesses die, they are absent at a distance of three days

639
[travel] or more, or they fall ill to such an extent that, due to it, they
are unable to attend the session of the judge (ḥākim).

If the secondary witnesses declare the primary witnesses to be

honest it is valid, but if they remain silent regarding their honesty, it
is [also] valid, and the judge [then] investigates their1275
circumstances.

If the primary witnesses decline to testify, the testimony of the

secondary witnesses is not accepted.

Abū Ḥanīfah, may Allah have mercy on him, said regarding false
testimony, “I publicise him in the market but do not give him a
discretionary punishment.” ey,1276 may Allah have mercy on them,
said, “We beat him painfully and imprison him.”

640
 AR-RUJŪ‘ ‘AN ASH-SHAHĀDAH –
RETRACTION OF TESTIMONY

When witnesses retract their testimony prior to a ruling [being

made] upon it, their testimony lapses and there is no liability on
them.

But if judgement has been passed based on their testimony, then

later they retract [their testimony], the judgement is not repealed and
they are liable for whatever damage they have done with their
testimony.

Retraction is only valid in the presence of the judge (ḥākim).

641
 When two [male] witnesses testify with regards to property and
the judge (ḥākim) decides on the basis of [their testimony], then later
both of them retract [their testimony], they are both liable for the
property to the victim.1277 If one of the two retracts [his testimony],
he is liable for a half.1278

If three [witnesses] testify and one of them retracts [his

testimony], there is no liability against him, but if another
retracts,1279 both of the retractors are [together] liable for a half of
the property.

If one man and two women testify, and one woman retracts [her
testimony], she is liable for a quarter of the right, but if both the
women retract [their testimonies], both of them are [ jointly] liable
for a half of the right.

If one man and ten women testify, and eight of those women
retract [their testimonies], there is no liability against them1280, but if
another1281 retracts [her testimony], then the women are [liable] for a
quarter of the right.1282

642
 If the man and the women [all] retract [their testimonies], then
on the man [there is liability for] a sixth of the right and on the
women five-sixths of the right, according to Abū Ḥanīfah, may Allah
have mercy on him. ey,1283 may Allah have mercy on them, said
that the man is liable for a half, and the women are [ jointly] liable
for a half.

If two [male] witnesses testify against a woman regarding

marriage according to the amount of dowry customary for someone
such as her (mahr al-mithl) or more, then later both of them retract
[their testimony], there is no liability against them. If they testify for
less than the customary dowry, then later retract [their testimony],
they are not liable for the loss,1284 and likewise, when both of them
testify against a man that he married a woman for the amount of the
customary dowry or less – but if they testify for more than the
customary dowry then later retract [their testimony], they are liable
for the excess.

If [two male witnesses] testify to the sale of something according

to the customary value1285 or more, then later retract [their

643
testimony], they are not liable [for anything]. If, however, it was for
less than the value, they are both liable for the loss.

If they testify against a man that he divorced his wife before

consummation with her, then later they retract [their testimony],
they are liable for half the dowry. If, however, [the testimony] was
[that he divorced her] after consummation,1286 they are not liable
[for anything].

If they testify that he freed his slave, then later they retract [their
testimony], they are both liable for his [the slave’s] value.

If they testify regarding retaliation (qiṣāṣ), then later they retract

[their testimony] after the killing [of the accused], they are both
liable for compensatory payment (diyah), but retaliatory punishment
is not awarded to them.

If secondary witnesses go back [on their testimony], they are

liable.

If primary witnesses retract [their testimony] and say, “We did not
make the secondary witnesses as witnesses to our testimony,” there is

644
no liability upon them. If they say, “We made them witnesses but we
have erred,” then they are liable.

If the secondary witnesses say, “e primary witnesses lie,” or “…

they err in their testimony,” no heed is paid to that.

When four [males] testify regarding unlawful sexual intercourse

(zinā) and two [male] witnesses [testify] regarding iḥṣān,1287,1288 and
the witnesses to iḥṣān retract [their testimony], they are not liable
[for anything].

When those who declare people to be worthy witnesses1289 retract

their [testimony] that [those people are] worthy (tazkiyah)1290 to be
witnesses, they are liable.1291

When two male witnesses testify regarding an oath, and two male
witnesses [testify] regarding the presence of a stipulating, then later
they [all] retract [their testimony], the liability is upon the witnesses
of the oath in particular.1292

645
 ĀDĀB AL-QĀḌĪ – CONDUCT OF THE
JUDGE

e appointment of a judge is not valid unless [all] the conditions

of [being] a valid witness1293 are united in the appointed person
(muwallā), and he is a jurist capable of reaching an independent
judgement (mujtahid).1294

ere is no objection to someone undertaking the position of

being a judge who is sure about himself that he will fulfil its
obligations. It is, however, disapproved for someone to undertake it
who fears his incapacity for it and is not secure in himself [from
committing] injustice in it.1295

One should not seek appointment [as judge] nor should one ask
for it.

646
 Whoever is made a judge, the register (dīwān) of the judge prior
to him is surrendered to him.

He investigates the condition of the prisoners. So, whoever of

them acknowledges a right,1296 [the newly-appointed judge] binds
him to it,1297 and whoever denies, [the judge] does not accept the
statement of the [ judge] who was removed [from office] unless there
is evidence.1298 If evidence is not produced, he does not rush into
releasing [the prisoner from prison] until he has announced [a claim
of a charge] against him and sought [disclosure] in his case.

He investigates deposits and the incomes [generated] by

endowments and he acts according to what is established by the
evidence, or what the person in whose possession they are
acknowledges.

He does not accept the statement1299 of the [ judge] who was

removed [from office] unless the one in whose possession it is
acknowledges that the [ judge] who was removed [from office]

647
submitted it (i.e. the evidence) to him, and so he accepts his
statement about it.

e judge sits in open session1300 in the mosque.

He does not accept gifts except from an un-marriageable relative

(dhū raḥm maḥram), or from someone who had made it his custom
to give him gifts prior to [his appointment to] judgeship.

He does not attend an invitation [to a meal] unless it is

general.1301 He attends funerals and visits the sick.

He should not show hospitality to one of two litigants without the

other.

When both [of the litigants] are present, he should treat them
both equally in seating1302 and attention.1303

He does not speak in confidence to either of them nor does he

make gestures to him, and he does not prompt him with any
argument.

648
 When the right has been reliably established in his view and the
one in whom the right is vested (ṣāḥib al-ḥaqq) demands that his
debtor be held in custody, [the judge] does not hasten to take him
into custody. He orders him to pay what he owes.1304 en, if he
refuses, [the judge] detains him, in [respect of ] each debt which is
binding on him, in lieu of property which has come into his
possession such as the payment for goods loan and in lieu of a loan,
or which is binding on him because of a contract, such as dowry and
standing surety.1305

[e judge] does not detain him for anything other than that if he
says, “I am poor,”1306 unless his creditor proves that he does have
property, [in which case the judge] imprisons him for two or three
months. ereafter, he makes enquiry about him. en, if no
property of his appears,1307 he sets him free1308 but he does not
interpose between him and his creditors.1309

A man is imprisoned for [not paying] his wife’s maintenance.1310

649
 A father is not imprisoned for his son’s debt, unless he refuses to
spend on [the son].

e judgement of a woman is permitted in everything other than

in cases of ḥadd punishments and retaliation (qiṣāṣ).

e document of one judge to [another] judge is accepted

concerning rights, if [a litigant] testifies to him in his presence.1311
So, if they testify against a present litigant,1312 [the judge] decides
according to the testimony and writes his decision.1313 If they testify
without the presence of the litigant, [the judge] does not pass
judgement and he writes [the details] regarding the testimony so that
the [ judge] addressed (maktūb ilayhi) may pass judgement.1314

e document is only accepted with the testimony of two male

witnesses, or one male and two female witnesses. It is incumbent that
he reads the document to them so that they may know what it
contains. en he seals1315 it and hands it over to them.

650
 When [the written testimony] reaches the [other] judge, he does
not accept it without the presence of the litigant.1316 When the
witnesses hand it over to him, he looks at its seal. When they testify
that, “It is the document of so-and-so the judge. He handed it to us
in the session of his verdict and [in] his jurisdiction, and he read it to
us and sealed it.” e judge opens it and reads it to the litigant and
binds him to whatever1317 it contains.

e document of one judge to [another] judge in [respect of ]

ḥadd punishments and retaliation (qiṣāṣ) is not accepted.

e judge may not deputise [anyone] to pass judgement unless

that [authority] has been delegated to him.

When the order of a judge (ḥākim) is raised to [another] judge

(qāḍī), he endorses it, unless it opposes the Book [of Allah], the
Sunnah, the consensus [of jurists] (ijmā‘) or it is a statement for
which there is no evidence.1318

651
 e judge does not decide against an absentee unless his
representative is present.1319

When two men appoint someone as an arbitrator (ḥākim)

between themselves, and they agree to his judgement, it is permitted
if he has the qualifications1320 of an arbitrator.

e appointment as arbitrator of a non-Muslim, a slave, a non-

Muslim living under Muslim governance (dhimmī), someone
convicted of unsubstantiated accusations of illegal sexual intercourse
(qadhf), a transgressor (fāsiq) and a minor are not permitted.

As long as he has not adjudicated between the two, each of those

who appointed another as a ḥākim (muḥakkims) [between them] may
rescind [the authority].

When [the arbitrator] adjudicates, it is binding on both of

them.1321

652
 If he refers his verdict to the judge and it conforms to his
madhhab, he endorses it, but if it contradicts it, [the judge] nullifies
it.

e appointment of an arbitrator is not allowed in cases involving

ḥadd punishments and retaliation (qiṣāṣ).

If they appointed [someone] as arbitrator in accidental homicide

(dam al-khaṭa’), and the arbitrator issues a verdict that the group
responsible for his compensatory payments (‘āqilah) must pay a
compensatory payment, his judgement is not executed.1322

It is permitted for him to hear testimony and decide refusal to

take oaths (nukūl).

e decision of the arbitrator in favour of his parents, his child

and his wife is void.

653
 QISMAH – DIVISION1323

e leader (Imam) should appoint a distributor (qāsim), whom he

provides for from the bayt al-māl,1324 [in order] to distribute [shares]
between the people without a fee [from them]. If [the Imam] does
not do that, [then] he should appoint a distributor to distribute for a
fee.1325

It is obligatory that he be just (‘adl), trustworthy and one who

knows the [rules and methods] of distribution.

e judge does not compel people to [only] one distributor.1326

He does not leave the distributors sharing.1327

654
 e fees of the distributors are [paid according] to the number of
the heads of [the heirs], according to Abū Ḥanīfah, may Allah have
mercy on him.1328 ey,1329 may Allah have mercy on them,
however, said, “… according to the proportion of the shares.”1330

When those who share come to the judge and in their possession
there is a building or an estate,1331 and they [all] claim that they have
inherited it from so-and-so, the judge shall not have it partitioned
unless they establish evidence of the death of [said person] and [of ]
the number of his heirs, according to Abū Ḥanīfah, may Allah have
mercy on him.1332 ey,1333 may Allah have mercy on them said
[that the judge] apportions it according to their verification,1334 and
he mentions in the document of division that he had it divided
according to their word.

If the property is shared (mushtarak), of that which is other than

real estate (i.e. is moveable), and they claim that it is inheritance, [the
judge] apportions it according to the saying of all of them.

Regarding real estate, if they claim that they have bought it, then
[the judge] has it divided among them.

655
 If they claim ownership but they do not mention how it was
transferred to them, [the judge] [still] has it divided between them.

If each one of those who share derives benefit from his [own]
share, [the judge] has [the property] divided upon the demand of
[any] one of them.1335

If [only] one of them derives benefit [from the property] and the
other suffers loss due to the smallness of his share, then [in this case,]
if the owner of the large [share] demands it, it is not to be divided,
but if the owner of the small [share] demands it, it is not to be
divided.

If each of the two [who share] suffers harm, [the judge] does not
have it divided without the mutual consent of both of them.

[e judge] has goods divided when they are of the same kind,1336
but he does not have two genera divided, one against the other,
except with the mutual consent of both of them.

656
 Abū Ḥanīfah, may Allah have mercy on him, said that he does not
have slaves and gems distributed,1337 but Abū Yūsuf and
Muḥammad, may Allah have mercy on them, said that he has slaves
distributed.

He does not have public baths, wells or querns divided up, except
when those who share them mutually consent [to that].

When two heirs come to the judge and both of them produce
evidence of the death [of the owner] and [of ] the number of heirs,
and [that the] building is in their possession, and along with them [in
the heirs] there is an heir [who is] absent, the judge divides it up on
the demand of those present and appoints an agent for the absentee
who receives his share [for him]. But if they are purchasers, he does
not have [it] divided up in the absence of any of them.

If the real estate, or some [part] of it,1338 is in the possession of an

absentee heir, [the judge] does not divide it up. If [only] one heir

657
attends, he does not have it divided up.

When there are some collectively owned buildings in one city,

each building is partitioned individually, according to the verdict of
Abū Ḥanīfah, may Allah have mercy on him.1339 ey,1340 may Allah
have mercy on them, however, said that if the division of some of the
[buildings] for others is more beneficial for [the collective owners],
[the judge] divides them [like that].1341

If [the collectively owned property consists of ] a building and an

estate, or a building and a shop, he divides each one individually.

e distributor makes a diagram of whatever he is to divide and

he does it fairly.1342 He measures it1343 and he values the building.
He separates each share from the rest with its passage and its drain
[included] so that there does not remain any connection for the share

658
of one of them with the share of the other.1344 He writes [down] the
names of [the co-owners] and he casts them in lots. He then
nominates one share as the first, [that] which is next to it as the
second, [that] which is next to it as the third, and so on. en he
draws the lots. Whoever’s name emerges first has the first share,
whoever emerges second has the second share [and so on].

Dinars and dirhams are not included in the division1345 except

with their [the heirs’] mutual consent.1346

If [the real estate] has been divided between them and one of
them has a rivulet1347 on the property of another, or a pathway which
was not a stipulation in the division,1348 if the diversion of the
pathway and the rivulet [away] from [the property of the other
person] is possible, then he may not take a pathway or rivulet in the
share of the other, but if that is not possible, the division is rescinded.

If there is a lower storey [but] no upper storey to it,1349 an upper

storey [but] no lower storey to it1350 or a lower storey [which does
have] an upper storey to it,1351 each one is valued individually and
divided according to its value and it is not taken into account without
that.

659
 When applicants for division differ,1352 and two distributors
testify,1353 their [the two distributors’] testimony is accepted.

If one of [the applicants for the division] claims an error and

thinks that something has entered the possession of his partner [in
the division] and he [himself ] had testified against himself of the full
execution [of the division],1354 he is not confirmed in that [claim]
without evidence.

If he says, “I have received my right,” and then later [says,] “I took

[only] a portion of it,” the [legally valid] statement is the word of his
adversary1355 along with his oath.

If he says, “[e portion] up to such a place [legally] fell to me but

was not surrendered to me,” and he had not testified against himself
regarding the execution, and his co-owner belies him, they both
swear oaths, and the division is rescinded.

660
 If someone is entitled to a share of one of the two, the division is
not rescinded, according to Abū Ḥanīfah, may Allah have mercy on
him, and he resorts to that [amount of ] portion from the share of his
co-owner. Abū Yūsuf, may Allah have mercy on him, said, “e
division is rescinded.”

661
 IKRĀH – COERCION

Coercion – its [legal] ruling is established1356 when it comes

about from someone who has the capacity of enforcing whatever he
threatened, [be he] a king or a thief.1357

When a man is coerced into selling his property, or buying goods,

or confirming a thousand dirhams for [another] man or to lease out
his [own] house, and he was coerced to do that with [the threat of ]
murder, severe beating, or with imprisonment,1358
[and] so he sells1359 or buys,1360 then he has the choice:
1. If he wants, he may confirm the sale, or
2. If he wants, he may annul it and return the sold item.1361

662
 If he had taken the payment1362 willingly, then he has endorsed
the sale, but if he had taken the payment reluctantly, it is not an
endorsement,1363 and he must return it if it is still in his possession.
If the sold goods have perished in the possession of the buyer, and he
was not compelled, [then] he pays in compensation its value, and the
coerced person (mukrah) may receive compensation from the one
who applied coercion (mukrih), if he wants.1364

Whoever is compelled to eat carrion, or drink wine, and he is

coerced into that with [the threat of ] detainment, beating or
fettering, it is not lawful for him, unless he is coerced with something
from which he fears for his life, or with [harm to] one of his limbs.
us, when he fears that, it is permitted for him to proceed with
whatever he has been coerced to do. It is not permitted for him to
patiently endure that which he has been threatened with. If he
endures it until they carry it out and he has not eaten [the carrion or
drank the wine], then he is guilty [of wrongdoing].

663
 If someone is coerced into rejecting Allah, exalted is He, or
abusing the Prophet by [the threat of ] fettering, detainment, or
beating, then that is not coercion until he is coerced with a matter
from which he fears for his life or [harm to] one of his limbs. us,
when he fears that, it is permitted for him to express whatever they
command him with but to dissimulate. So, when he says that and his
heart is at rest in faith, there is no guilt [of wrongdoing] upon him,
but if he endures it until he is killed and does not express disbelief, he
will be rewarded.

If he is coerced into wrecking the property of a Muslim because of

a matter from which he fears for his life or [harm to] one of his
limbs, it is permitted for him to perform that [act or omission]. e
owner of the [wrecked] property receives compensation from the
person who coerced [him].

664
 If he is coerced by [the threat of ] being killed to murder someone
else, it is not permitted for him to proceed with that. He should
patiently endure [the pressure of the threat] until he [himself ] is
killed. If [the coerced individual] kills [the victim], he is guilty of
wrongdoing, and retaliation (qiṣāṣ) is due against the one who
coerced him, if the killing was deliberate.

If he is coerced into divorcing his wife or setting his slave free and
he does [that], whatever he was coerced into takes effect. [e person
who was coerced] resorts to whoever coerced him into [doing that]
for the value of the slave, and he resorts [to him] for a half of the
wife’s dowry if [the coerced] divorce was [made] prior to
consummation [of the marriage].

If he is forced into [committing] unlawful sexual intercourse

(zinā), the ḥadd punishment is obligatory upon him, according to
Abū Ḥanīfah, may Allah have mercy on him, unless the Sulṭān
compels him. ey,1365 may Allah have mercy on them, however, said
[that] the ḥadd [punishment] is not binding on him.

665
 When someone is coerced into apostasy (riddah), his wife is not
finally divorced from him.1366

666
 SIYAR1367 – CAMPAIGNS

Jihād is a collective obligation; when a group of the people

establish it, [the obligation] lapses from the rest, but if none of them
establish it, [then] all of the people are guilty of wrongdoing by its
omission.1368

Fighting unbelievers is obligatory, even it they do not initiate it

against us.1369

Jihād is not obligatory for minors, slaves, women, the blind, the
disabled or amputees.

When the enemy attacks a city, repulsing [the attack] is obligatory

on all the Muslims: [in such circumstances] women go out [to fight]

667
without the permission of their husbands, and slaves without the
permission of [their] masters.

When Muslims enter territory at war [with the Muslims] (dār al-
ḥarb) and they lay siege to a city or to a fort, they invite [the
inhabitants] to Islam. If [the inhabitants] accept them, [then] [the
Muslims] desist from fighting them, but if they decline, [the
Muslims] call them to pay jizyah.

If they give it (jizyah), then they have [as a legal right] whatever
the Muslims have, and [the legal duties] due on them are whatever
are due on [the Muslims].1370

It is not permitted to fight those whom the invitation of Islam has

not reached, except after [the Muslims] have invited them [to Islam].

It is recommended to invite those whom the invitation of Islam

has [already] reached [before fighting them], but that is not
obligatory.

668
 If they refuse,1371 [the Muslims] should seek the aid of Allah,
exalted is He, against them and wage war on them. ey should fire
catapults1372 at them and burn [their buildings and strategic
positions]. ey should unleash water against them1373 and cut down
their trees and destroy their crops.

ere is no objection in shooting them [with arrows], even

though there may be Muslim prisoners or traders amongst them.

If they shield themselves with children of the Muslims, or with

prisoners, [the Muslims] should not cease shooting at them [with
arrows]. With the shooting [of arrows, etc.] they target non-
Muslims, but not the Muslims.

ere is no objection in taking women and copies of the Qur’ān

(muṣḥafs) with the Muslims when the army is great and there is
confidence in it. It is disapproved to take them in a detachment
(sariyyah) when there is no confidence in it.

669
 Women do not fight except with the permission of their husbands
nor slaves except with the permission of their masters, unless the
enemy attacks.1374

e Muslims are required not to:

1. Be treacherous,
2. Act unfaithfully in taking from the spoils,1375
3. Mutilate, or
4. Kill

a. A woman,
b. A minor,
c. An enfeebled old man,
d. e blind, or
e. e disabled,
unless any one of these [persons] are people who have an insight
into war,1376 or the woman is a queen.
f. e insane are not to be killed [either].

O T
670
 On Truce

If the leader (Imam) thinks that he should make a truce with the
[enemy] combatants, or [with] a group of them, and in that there is
some benefit for the Muslims, there is no objection to that.

If he secures a truce with them for a period, then later thinks that
breaking the truce is more beneficial, he is to [formally] renounce
[the truce] to [the enemy]1377 and fight them.

If [the enemy] initiates [the breach of the truce] by treachery, [the

Imam] should fight them and not [formally] renounce [the truce] to
them,1378 if that [breach] was by their arrangement.

If their slaves leave towards the army of the Muslims, they are
free.

ere is no objection to the [Muslim] army:

1. Foddering [its animals] in enemy territory (dār al-ḥarb),

671
 2. Eating whatever they find of food,
3. Making use of firewood,
4. Embrocating with oil, and
5. Fighting with [the use of ] whatever of weapons they find –
all of that without distribution [by the Imam].

It is not permitted for them to sell any of that nor to hoard it.

Whoever of them becomes Muslim, due to his [acceptance of ]

Islam he thus protects his [own] life, his minor children, all of his
wealth [that is] in his possession or entrusted for safekeeping to a
Muslim or to a non-Muslim living under Muslim governance
(dhimmī).1379

If we [the Muslims] overcome his house, then his real estate

property is fay’-booty,1380 his wife, his mount and his major children
are [all] fay’-booty.

672
 Weapons ought not to be sold to the [enemy] fighters, nor may
they be equipped with those [weapons] nor may prisoners be
ransomed,1381 according to Abū Ḥanīfah, may Allah have mercy on
him. ey,1382 may Allah have mercy on them, however, said that
Muslims’ prisoners are ransomed with them [Muslims imprisoned by
the enemy].

It is not permitted to [show] favours to them.

When the leader (Imam) conquers a city by force, then he has the
choice:
1. If he wants, he divides it between the victorious fighters
(ghānims), or
2. If he wants, he confirms1383 its inhabitants on it and applies
jizyah to them and kharāj (land tax) to their lands.

With regards to the prisoners, he has the choice:

1. If he wants, he kills them,
2. If he wants, he enslaves them, or
3. If he wants, he leaves them as free men under the contract of

673
 the dhimmah to the Muslims.

It is not permitted for him to return [the prisoners] to the

territory at war (dār al-ḥarb).

When the leader (Imam) decides to return to the Muslim lands

(dār al-Islām) and with him there are cattle1384 and he is not able to
transport them to the Muslim lands, he slaughters them and burns
[their carcasses], and he does not hamstring them or leave them
[roaming free].

He does not distribute the booty in enemy territory until he takes

it to the Muslim lands.

e auxiliary and the fighter in the army are [deemed] the

same.1385

When reinforcements reach [the Muslims] in enemy territory (dār

al-ḥarb) before they take the booty to Muslim lands, [the
reinforcements] share with them in it.1386

674
 People of the army’s market1387 have no right to booty unless they
fight.

When a free man or free woman grant safety to a non-Muslim, or

a group or the inhabitants of a fortress or a city, their promise of
safety is valid. It is not permitted for any of the Muslims to kill them
unless there is a corrupting [element] in that, [in which case], the
leader (Imam) formally renounces [the promise of safety] to them.

It is not valid for a non-Muslim living under Muslim governance

(dhimmī), a prisoner-of-war or a [Muslim] trader who visits [the
enemy] to grant safety.

It is not valid for a legally incompetent slave to grant safety,

according to Abū Ḥanīfah, may Allah have mercy on him, unless his
master permits him [to take part] in the fighting. Abū Yūsuf and
Muḥammad, may Allah have mercy on them, however, said that his
[granting of ] safety is valid.1388

675
 When the Turks overcome the Romans,1389 imprison them and
take their property, they take ownership of it. And if [the Muslims]
overcome the Turks, whatever we find from that is lawful to us.
When they overcome our property and they take it [back] to their
homes, they acquire ownership of it.

If the Muslims then conquer that1390 and [its owners] find it prior
to [its] distribution [among the Muslim fighters], it is for them for
nothing [as payment].1391 But if they find it after distribution, they
take it [back] with payment,1392 if they wish [to take it back].

If a trader enters enemy territory (dār al-ḥarb) and buys that

[property], then takes it to Muslim lands, its initial owner has the
choice:
1. If he wants, he may take it (i.e. buy it) for the price which
the trader bought it for, or
2. If he wants, he may leave it.

676
 By conquest, enemy combatants do not become owners against
1393
us of our slaves who are to be set free on the death of their
owners (mudabbars), our slave-women who are mothers of our
children (umm al-walads), our slaves who have a contract to purchase
their freedom (mukātabs) or of our free men, but we may become
owners against them of all of that.

When the slave of a Muslim absconds and goes in among them

and they take him, they do not acquire ownership of him, according
to Abū Ḥanīfah, may Allah have mercy on him. ey,1394 may Allah
have mercy on them, however, said that they acquire ownership of
him.

If a camel escapes to them and they take it, they acquire

ownership of it.

Ghanā’im – Spoils

If the leader (Imam) has no beasts of burden on which to

transport the spoils, he distributes it among the conquering fighters
as a deposit on trust, for them to transport to the Muslim lands.
en, he takes it back from them and distributes it.

677
 e sale of spoils in enemy territory prior to distribution is not
permitted.

Whoever of the conquering fighters dies in enemy territory,1395

has no right in the [distribution of the] spoils.1396

Whoever of the conquering fighters dies after their [spoils] being

brought to the Muslim lands, then his share is for his heirs.

ere is no objection if the leader promises more during the

fighting and [thereby] urges on the fighting with the promise of
more, and he says, “Whoever kills someone, then he has his spoils
(salab1397),” or he says to a raiding party, “I promise you a quarter
after the [exclusion of the] fifth (khums1398).”

After the collection of the booty, he does not reward [anyone],

except from the fifth (khums).

678
 When [the Imam] does not promise the spoils (salab) to the
person who killed [the slain enemy], then it is [made] a part of the
total booty,1399 and the person who killed him and others are equal
with respect to it.

e spoils (salab) are whatever clothes and armour the slain

[enemy fighter] has on as well as his mount.

When the Muslims leave enemy territory, it is not permitted for

them to feed [their animals] from the booty nor for them to eat
anything from it.

Whoever has some fodder or food left over should return it to the
booty.

[Only] the leader distributes the booty. He takes out a fifth

(khums) and distributes the [remaining] four-fifths among the
conquering fighters: two shares [each] for cavalry and one share
[each] for infantry, according to Abū Ḥanīfah, may Allah have mercy
on him. ey,1400 may Allah have mercy on them, however, said, “For
[each of ] the cavalry there are three shares.”

679
 ere is only a share for one horse. Common horses and pedigree
horses are the same.1401 He does not appoint shares for riding camels
or mules.

Whoever enters enemy territory as cavalry and his horse perishes

is entitled to a share as cavalry.

Whoever enters as infantry and then buys a horse is entitled to a

share as infantry.

ere are no shares for slaves, women, non-Muslims living under

Muslim governance (dhimmīs) or minors, but the leader may give
them as a gift, as he sees fit.

With regards to the fifth (khums), it is divided into three shares:

1. A share for orphans,

2. A share for the needy, and

680
 3. A share for travellers.

Poor close relatives (dhawū’l-qurbā)1402 are comprised among

them and they are given priority, but the wealthy of them are not
given anything.

Whatever Allah, exalted is He, has mentioned of the fifth

(khums) for Himself in His Book, it is [there] to open the speech,
deriving blessing from His name.1403

e share of the Prophet lapsed with his demise, just as did the
ṣafī1404 and the share of [his] close relatives who were entitled to it
during the time of the Prophet due to victory, and after him due to
poverty.

When one or two people enter enemy territory raiding without

the leader’s permission and they take something, the fifth is not taken
from it.

681
 But if a body [of people] who have power enter [it] and take
something [from it], a fifth is taken from it, even if the leader
(Imam) had not authorised them.

When a Muslim enters enemy territory as a trader, it is not lawful

for him to attack anything of their property or their lives. If he
deceives them and takes something, he acquires ownership of it [but]
with an embargoed ownership1405 and is ordered to give it away as
ṣadaqah (in charity).

When a belligerent (ḥarbī) comes to us [the Muslims] as someone

seeking temporary protection (musta’min), it is not possible for him
to stay in [our] land for one year.

e leader says to him, “If you stay for a whole year, I shall impose
jizyah on you.”

So, if he stays for a year, jizyah should be taken from him and he
is [classified] as a non-Muslim living under Muslim governance

682
(dhimmī), and he is not left to return to enemy territory (dār al-
ḥarb).

If he does return to enemy territory and leaves goods with a

Muslim or a non-Muslim living under Muslim governance
(dhimmī), or [he leaves] a debt in their care, his blood becomes
lawful by his returning [to enemy territory], and whatever of his
property is in the Muslim land is [now] at risk.1406 If he is taken
prisoner-of-war, or the [enemy] territory is overcome and he is killed,
his debts lapse and his goods become fay’-booty.

Whatever of the enemy combatants’ property the Muslims

capture without fighting, is spent on the welfare of the Muslims, just
as the land-tax (kharāj) is spent.

Arabian land is all land of ‘ushr.1407 It [includes] whatever is

between ‘Udhayb1408 and the furthest stone of Yemen in Mahrah, to
the extent of the easternmost parts of Syria.

683
 e Sawād1409 is all land of kharāj. It [includes] whatever is
between ‘Udhayb and ‘Aqabah Ḥulwān, and from ‘Alth1410 to
‘Abbādān (Abadan).1411,1412

e land of the Sawād is owned by its inhabitants. Selling it as

well as transacting with it is permitted for them.

All land whose owners become Muslim, or which has been

conquered by force and has been distributed amongst the conquering
fighters, is the land of ‘ushr.1413

All land conquered by force whose owners1414 are confirmed [in

ownership of ] it is the land of the land-tax (kharāj).

Whoever revivifies barren land, it is determined according to its

closeness, according to Abū Yūsuf, may Allah have mercy on him; so,
if it is close to the land of the land-tax (kharāj), it is subject to the

684
land-tax (kharājiyyah), and if it is close to the land of the tenth
(‘ushr), [then] it is subject to a tenth (‘ushriyyah).

According to us [Muslims], Baṣra is subject to a tenth

(‘ushriyyah), because of the consensus of the Companions, may Allah
be pleased with them.

Muḥammad, may Allah have mercy on him, said [that] if he

revivifies it by a well which he digs, with a spring which he discovers,
or by water from the Tigris or Euphrates [rivers], or from major
rivers which nobody owns, then it is subject to a tenth (‘ushriyyah),
but if he revivifies it with the water of rivers which non-Arabs had
dug, like the river of the king and the River Yazdagird,1415 then it is
subject to land-tax (kharājiyyah).

e land-tax that ‘Umar imposed on the people of the Sawād,

was:
1. For every arable patch of land (jarīb)1416 which water

685
 reached,1417 and which was good enough for cultivation, the
Hashemite qafīz,1418 [which is] a ṣā‘ and a dirham,
2. For every lush arable patch of land (jarīb), five dirhams, and
3. For every arable patch of land (jarīb) [full] of contiguous
grapevines and contiguous date-palms, ten dirhams.

For other types [of land], [kharāj] is imposed upon it according to

its capacity. If it cannot support [the amount] that is imposed on it,
the leader reduces it.

If water inundates kharāj land, or [the water] ceases to [reach] it

or a calamity destroys the crops, then there is no land-tax due from
them [the owners], but if its owner leaves it [uncultivated] then land-
tax is [still] due from him.

Whoever of the people who [pay] land-tax becomes Muslim, as it

stands, land-tax is [still] taken from him.

It is permitted for a Muslim to buy land of kharāj from a non-

Muslim living under Muslim governance (dhimmī), and land-tax is

686
[nevertheless] taken from him.

ere is no tenth (‘ushr) due on the produce of the land of kharāj.

On Jizyah – e Capitation on Non-Muslims

Living under Muslim Governance (Dhimmīs)

Jizyah is of two types:

1. Jizyah which is imposed by mutual agreement and treaty.1419
It is determined according to what agreement is reached on,
and
2. Jizyah which the leader (Imam) initiates by enforcing it,
when the leader defeats the disbelievers, and confirms them
[as owners] of their properties.

He [the Imam] imposes [as jizyah]:

1. On the obviously wealthy [non-Muslim living under Muslim

687
 governance],1420 forty-eight dirhams per year, he takes four
dirhams per month from him,
2. On the [non-Muslim living under Muslim governance
(dhimmī) of ] average condition,1421 twenty-four dirhams –
two dirhams per month, and
3. On the labouring poor,1422 twelve dirhams – one dirham per
month.

Jizyah is imposed on the People of the Book (Ahl al-Kitāb), the

Magians and on the idolaters from the non-Arabs, but it is not
imposed on the idolaters of the Arabs nor on the apostates.

ere is no jizyah due from women, minors, the chronically ill,

the unemployed poor [dhimmīs] or [hermit] monks who do not mix
with people.

Whoever becomes Muslim and there was jizyah [due] from him,
it lapses from him.

When two years combine upon [the non-Muslim living under

Muslim governance (dhimmī)], both jizyahs combine with one

688
another.1423

It is not permitted to build a new church or synagogue in the

Muslim lands, but when old synagogues and churches fall into ruin,
they rebuild them.

Non-Muslims living under Muslim governance (ahl adh-

dhimmah) are required to preserve a distinction from the Muslims in
their dress, their mounts, their saddles and their headgear. ey do
not mount horses or bear arms.

Whoever refuses [to pay] jizyah, kills a Muslim, insults the

Prophet or has unlawful sexual intercourse with a Muslim woman,
his contract has not been violated.1424

e contract is not violated except when he takes [himself ] to

enemy territory (dār al-ḥarb), or they [the non-Muslims living under
Muslim governance (dhimmīs)] overrun a place and wage war against
us [the Muslims].

On Apostates (Murtadds)

689
 When a Muslim reneges on Islam, Islam is presented to him. If
he has any doubt [about Islam], it is explained to him. He is
imprisoned for three days.1425 If he accepts Islam [it is better for
him], otherwise, he is executed. If someone kills him prior to
presenting Islam to him that is abhorrent, but there is nothing [as
liability] against the killer.

As for women who renege [on Islam], they are not killed but are
imprisoned until they become Muslims.

e ownership of the renegade concerning his property ceases

because of his reneging, [and is kept] in custody.1426 en, if he
becomes Muslim [again], it returns to its [previous] state.1427

If someone dies or is killed whilst a renegade, whatever he earned

in [his] state of Islam (i.e. as a Muslim) is transferred to his Muslim
heirs. Whatever he earned as a renegade is fay’-booty.1428

690
 If he took [himself ] to enemy territory as a renegade, and the
judge (ḥākim) has declared [official] his removal [to enemy territory]:
1. His slaves who were to be set free on his death (mudabbars)
and the slave-women who were mothers of his children
(umm al-walads) are set free,
2. e debts upon him fall due,1429
3. Whatever he earned in the state of Islam is transferred to his
heirs from among the Muslims,
4. e debts binding upon him in the state of Islam are paid
from whatever he earned while a Muslim, and whatever
debts became binding on him while a renegade are paid from
that [what he earned] while a renegade.

Whatever he sold, bought or transacted with from his [own]

property in the state of his reneging, is suspended.1430 en, if he

691
becomes a Muslim [again], his contracts become valid, but if he dies,
is killed or takes himself to enemy territory, they are void.

If the renegade returns as a Muslim after his taking himself to

enemy territory has become official, whatever tangible item of his
own property he finds in the possession of his heirs, he takes [back].

When the female renegade transacts with her property in the state
of her reneging, her transacting with it is permitted.1431

With regards to the Christians of Banū Taghlib,1432 twice what is

taken as zakāh from Muslims is taken from their wealth.1433 [It] is
[also] taken from their women but not from their minors.1434

Whatever the leader has collected as kharāj from the properties of

the Banū Taghlib, and whatever those at war [with the Muslims]
have given as gifts to the leader, and the jizyah are [all] spent upon
the welfare of the Muslims. With it, frontiers are secured, bridges

692
and aqueducts built, and from it, the judges of the Muslims, their
administrators and their scholars are paid whatever [amount] is
sufficient for them, and from it, the provisions of the soldiers and
their children are [also] paid.

REBELS (BĀGHĪS)

When a group of Muslims take over some land and they leave
obedience to the leader (Imam), he invites them to return to the
[united] body, and he dispels their doubts.1435

He does not initiate fighting against them unless they initiate [it]
against him. en, if they initiate [fighting], he fights them until he
disperses their group.

If they have a band [waiting by], [then] one hastens to kill their
wounded and give chase to those of them who flee. If they do not
have a band, then one does not hasten to kill their wounded or give
chase to those of them who flee.

693
 eir children are not imprisoned and their property is not
distributed [as booty].1436

If the Muslims need to, there is no objection that they fight them
with their own (the rebels’) weapons.1437

e leader holds their property and does not return it to them –

but he does not distribute it – until they repent, then he returns it to
them.

Whatever land-tax (kharāj) and the (‘ushr) the rebels had

collected from the lands which they conquered, the leader (Imam)
does not take from them [the inhabitants] a second time.

If they had spent it on its rightful purposes, it discharges [the

duty] of those from whom it was taken, but if they had not spent it
for its rightful purposes, then it is a duty on them that they should
repay it for the sake of whatever is between them and Allah, exalted
is He.1438

694
 ḤAẒR WA IBĀḤAH – PROHIBITION &
PERMISSIBILITY

Wearing silk is not lawful for men but it is lawful for women.
ere is no objection to using [silk] as a pillow, according to Abū
Ḥanīfah, may Allah have mercy on him, but they,1439 may Allah have
mercy on them, said that using it as a pillow1440 is disapproved.

ere is no objection to wearing silk or brocade in battle,

according to them,1441 may Allah have mercy on them, but it is
disapproved according to Abū Ḥanīfah, may Allah have mercy on
him.

ere is no objection to wearing something woven (mulḥam),

when its [warp] is silk and you make the weft with cotton or silky
fabric (khazz).1442

695
 It is not permitted for men to wear jewellery [made] of gold and
silver, but there is no objection to a ring, belt and the decoration of a
sword from silver.

It is permitted for women to wear jewellery [made] of gold and

silver.

It is disapproved for a [male] minor to be dressed in gold and silk.

It is not permitted to eat, drink, [apply] oil and perfume from

receptacles of gold and silver, for [both] men and women.

ere is no objection to the use of receptacles [made] of glass,

lead, crystal and carnelian.

It is permitted to drink from a silver-plated vessel, according to

Abū Ḥanīfah, may Allah have mercy on him, as well as being
mounted on a silver-plated saddle and sitting on a silver-plated bed.

696
 It is disapproved to mark every ten verses of the written copy of
the Qur’ān (muṣḥaf)1443 and to dot [the letters].

ere is no objection to the decoration of the written copy of the

Qur’ān, decorating the mosque and ornamenting it with liquid
gold.1444

It is disapproved to employ eunuchs.

ere is no objection to the castration of animals and getting a

[male] donkey to mount1445 a [female] horse.1446

It is permitted to accept the statement of slaves and minors in

[cases of ] gifts and authorising [a slave].

In [cases of ] ordinary transactions (mu‘āmalāt),1447 the statement

of the dissolute is [legally] accepted.1448

In [cases of ] religious matters (diyānāt),1449 nothing but the

statement of the morally upright is accepted.

697
 It is not permitted for a man to look at [any bodily part] of a
female non-relative (ajnabiyyah) except her face and her palms. If he
is not safe from sexual desire, he does not look at her face except out
of necessity.

It is permitted for the judge to look at the face of [a woman],

when he wishes to pronounce a judgement upon her, and for the
witness when he wishes to testify against her, even though they fear
becoming aroused.

It is permitted for the doctor to look at the locus of disease on her

[body].

A man may look at the whole body of a man, except what is

between his navel up to [and including] his knee.

It is permitted for women to look at in a man whatever a man

may look at.1450

A woman may look at [the same bodily parts] of a woman which

are permitted for a man to look at in another man.

698
 In the cases of his slave-woman who is lawful to him and of his
wife, a man may look at their genitalia.

With respect to his un-marriageable (maḥram) females,1451 a man

may look at the face, head, chest, lower legs, and arms, but he cannot
look at her back, belly or thighs. ere is no objection if he touches
those [parts] of her [body] it is permitted for him to look at.

A man may look at in someone else’s slave-woman, that which it

is permitted for him to look at of his [own] un-marriageable
(maḥram) females. ere is no objection to him touching that [part]
when he intends to purchase [her], even if he fears that he will be
[sexually] aroused.

e eunuch, in [terms of ] looking at the female non-relative is

the same as the un-castrated male.

699
 It is not permitted for a slave to look at [any bodily parts] of his
mistress except that of her which it is permitted for the male non-
relative (ajnabī) to look at.1452

One may practise coitus interruptus (‘azl) with his slave-woman

without her permission but he may not practise coitus interruptus
with his wife without her permission.

It is abhorrent to hoard the foodstuffs of humans and animals

when that is in a land where hoarding would be harmful to its
inhabitants. Whoever hoards grain off his own estate or what he has
imported from another land is not [considered] to be hoarding.

e Sulṭān ought not to set prices for the people.

e sale of weapons during days of civil strife is abhorrent, but

there is no objection to the sale of expressed fruit-juice to someone
whom it is known will make wine from it.1453

700
 WAṢĀYĀ – BEQUESTS

Making a bequest (waṣiyyah) is not obligatory, but it is

recommended. [Making a] bequest to an heir is not permitted unless
the [other] heirs permit it.1454
It is not allowed in anything over a third.1455
e bequest in favour of a homicide is not permitted.1456
It is permitted for a Muslim to make a bequest to a disbeliever,
and a disbeliever to a Muslim.

e acceptance of the bequest is after the death [of the testator

(mūṣī)]. So, if the legatee (mūṣā lahū) accepts it during the life [of
the testator], or rejects it, that [decision] is void.

It is recommended that a person bequeaths less than a third [of

his property].

701
 When [the testator] bequeaths to a man, and he (i.e. the legatee)
accepts the bequest in the presence of the testator but declines it
when out of his presence, then that is not a [valid] refusal, but if he
declines it in the presence of [the testator] then that is a [valid]
refusal.

e bequest (mūṣā bihī) becomes owned by acceptance [by the

legatee] except in one case and that is if the testator dies, then later
the legatee [also] dies prior to acceptance, [in which case] the bequest
enters the property of the heirs of the deceased.1457

Whoever bequeaths to a slave, a disbeliever or someone dissolute,

the judge excludes them from the bequest and appoints [someone]
other than them.

Whoever bequeaths to his own slave while there are elders among
the heirs, the bequest is invalid.

702
 Whoever bequeaths to someone who is incapable of
implementing the bequest, the judge associates another person with
him.1458

Whoever bequeaths to two [persons], it is not permitted for either

of the two to transact [with it] without his associate, according to
Abū Ḥanīfah and Muḥammad, may Allah have mercy on them,
except in:
1. Purchase of a shroud for the deceased,
2. His [funeral and burial] preparation,
3. Food for his minor children and their clothing,
4. e return of specific deposits,
5. e execution of a specific bequest,
6. Setting a specific slave free, and
7. e payment of debts and litigations with respect to the
deceased.1459

703
 Whoever bequeaths a third of his property to a man, and a third
of his property to another, and the heirs do not allow [this], then
[only] a third is [shared] between the two in two halves.1460

If [the testator] bequeaths a third to one of the two, and a sixth to

the other, then the third is [shared] between both of them in
thirds.1461

If he bequeathed his entire property to one of the two and a third

of his property to the other and the heirs do not allow [that], then
the third is [shared] between the two in four portions, according to
Abū Yūsuf and Muḥammad, may Allah have mercy on them.1462
Abū Ḥanīfah, may Allah have mercy on him, said that the third is
[shared] between both of them in two halves.

Abū Ḥanīfah, may Allah have mercy on him, does not give to the
legatee anything in excess of a third except in [the cases of ]:
1. Muḥābāh,1463
2. Si‘āyah,1464 and
3. Darāhim mursalah.1465

704
 Whoever makes a bequest and there is a debt which he owes
which overwhelms his property, the bequest is not permitted1466
unless the creditors release [him] from the debt.

Whoever bequeaths the share of his son, the bequest is void. If he

bequeaths an [amount] equal to the share of his son, it is permitted.
en, if he has two sons, the legatee has a third [as maximum].

Whoever sets his slave free during his [terminal] illness,1467 or

sells, or performs muḥābāh, or gives as a gift, then all of that is
permitted and it is taken into account from the third [of his
property],1468 and the sharers in the bequests are given from it.1469

If he performs muḥābāh, then later sets [the slave] free, the

muḥābāh is more excellent, according to Abū Ḥanīfah, may Allah
have mercy on him. If he sets [the slave] free, then later performs
muḥābāh, they are both the same. ey,1470 may Allah have mercy on
them, said that setting a slave free is more excellent in both cases.

705
 Whoever bequeaths a portion of his property, then he [the person
to whom it was bequeathed, i.e. the legatee] has the inferior [portion]
from the portions of the heirs, unless it becomes less than a sixth in
which case the sixth is topped up for him.

If he bequeaths a part of his property, it is said to the heirs, “Give

to him whatever you wish.”

Whoever bequeaths bequests regarding [the performance of ] the

rights of Allah, exalted is He, the obligations (farā’iḍ) are given
priority over others, [irrespective of whether] the testator advanced
them or delayed them [when mentioning them], such as the ḥajj,
zakāh and expiations. Whatever of it is not obligatory is given the
priority that the testator gave it [when mentioning them].

Whoever bequeaths [the performance of ] the ḥajj of Islam, [the

heirs] should send one person for ḥajj from his city on his behalf,
who [sets forth] mounted. If [the property of ] the bequest does not
reach [the level of ] expenditure [to be incurred], then they send

706
someone forth for ḥajj on his behalf from whichever [place] it
reaches.

Whoever proceeds from his city as a ḥājjī and dies along the way,
and bequeaths that ḥajj be performed on his behalf, [then] ḥajj is
performed on his behalf from his city, according to Abū Ḥanīfah,
may Allah have mercy on him. ey,1471 may Allah have mercy on
them, however, said that ḥajj is performed on his behalf from [the
location] where he died.

e bequest of a minor or of a slave who has contracted to

purchase his freedom (mukātab) is not valid, even though they leave
enough [property behind].1472

Retracting the bequest is permitted for the testator. If he

announces the retraction, it is a [valid] retraction. Whoever disputes
the bequest, it is not [considered] a retraction.

Whoever bequeaths to his neighbours, then they are the adjacent

[neighbours], according to Abū Ḥanīfah, may Allah have mercy on
him.

707
 Whoever bequeaths to his in-laws (aṣhār), the bequest is for every
un-marriageable relative (dhū raḥim maḥram) on [the side of ] his
wife.

Whoever bequeaths to his akhtān, then they are the husbands of

every one of his un-marriageable female relatives.1473

Whoever bequeaths to his close relatives (aqribā’), the bequest is

to the closest, then the [next] closest of every un-marriageable
relative (dhū raḥm maḥram). [Neither the] parents nor children are
included in them, and it is for two [persons] or more.1474

When someone bequeaths that, and he has two paternal uncles

and two maternal uncles, the bequest is for his two paternal uncles,
according to Abū Ḥanīfah, may Allah have mercy on him, but if he
has one paternal uncle and two maternal uncles, then the paternal
uncle has a half [of the bequest] and the two maternal uncles have
[the other] half.

708
 ey,1475 may Allah have mercy on them, said that the bequest
[which is made to his relatives] is for everyone who is a descendent of
the most distant [paternal] grandfather of his in Islam.

Whoever bequeaths to a man a third of his dirhams or a third of

his sheep and goats, and two-thirds of that perish and a third
remains, and it proceeds out of a third of whatever of his property is
left, then [the legatee] has the whole of whatever remains.

Whoever bequeaths a third of his garments, and two-thirds of

them perish and [only] a third of them remains, and it proceeds from
a third of whatever of his property remains, he is only entitled [to] a
third of what remains of the garments.

Whoever bequeaths to a man a thousand dirhams, and he

[himself ] has tangible property (‘ayn) and [also he is owed] debts
(dayn), if a thousand be produced from a third of the tangible
[property], it is paid to the legatee, but if it cannot be produced

709
[from it], then a third of the tangible [property] is paid to him.
Whenever something is produced from [repayment of ] the debt, a
third of it is taken until the thousand [dirhams-worth] is paid in full.

Bequest to a foetus is allowed, and [to bequeath] a foetus, when it

is delivered in less than six months from the day of the bequest.

Whoever bequeaths a slave-woman to a man, excluding her

foetus, the bequest and the exception are [both] valid.

Whoever bequeaths a slave-woman to a man, and she gives birth

to a child after the death of the testator [and] prior to the legatee
accepting, and then later the legatee accepts, and both of them1476
proceed from the third [of the total property of the testator], then
both of them are the legatee’s. But if they cannot both proceed from
the third, he sticks to the third and takes the share from them both
in total, according to the verdict of Abū Yūsuf and Muḥammad, may
Allah have mercy on them. Abū Ḥanīfah, may Allah have mercy on
him, however, said that he takes that [share which is not more than a

710
third of the total] from the mother. If anything is left over, he then
takes it from the child.

Bequest of the service of his [the testator’s] slave and residency in

his house for a specified [number of ] years is permitted, and that is
also permitted indefinitely.

If the bondage of the slave proceeds from the third, he is

submitted to [the legatee] for service. If [the testator] has no property
other than him, [the slave] serves the heirs for two days, and [serves]
the legatee for one day. If the legatee dies, [the slave] returns to the
heirs, but if the legatee dies during the life of the testator, the bequest
is void.

When someone makes a bequest to the children of so-and-so, the

bequest is between them, the male and the female being equal in that
respect.

If the testator makes a bequest to the heirs of so-and-so, the

bequest is between them [according to]: “For the male there is the
equivalent of the share of two females.”1477

711
 Whoever bequeaths to Zayd and ‘Amr a third of his property, but
‘Amr was dead [at the time], then the third all goes to Zayd.

If he says, “A third of my property is [to be shared] between Zayd

and ‘Amr,” and Zayd was dead [at the time], ‘Amr has a half of the
third.1478

Whoever bequeaths a third of his property and he has no property

[at all], then later he earns some property, the legatee is entitled to a
third of whatever [the testator] owns at [the time of ] his death.

712
 FARĀ’IḌ – INHERITANCE

ere is unanimous agreement that ten males inherit:

1. A son,
2. A son of a son, even if lower in descent,1479
3. A father,
4. A paternal grandfather, even if higher in ascent,1480
5. A brother,
6. A son of a brother,
7. A paternal uncle,
8. A son of a paternal uncle,
9. A husband, and
10. A master who sets [his] slave free.

and of the females there are seven:

1. A daughter,
2. A daughter of a son,
3. A mother,

713
4. A grandmother,
5. A sister,
6. A wife, and
7. A mistress who sets her slave free.

Four [people] do not inherit:

1. A slave,
2. A homicide from the person killed,1481
3. A person who reneges [on Islam], and
4. People of two [different] religions.1482

ere are six shares fixed in the book1483 of Allah :

1. A half,
2. A quarter,
3. An eighth,
4. Two-thirds,
5. A third, and
6. A sixth.

e half is the fixed share of five [persons]:

1. A daughter,
2. A daughter of a son, when there is no proper daughter,

714
 3. A full sister,1484
4. A half-sister from the same father if there is no full sister, and
5. A husband, when the deceased [woman] has no children and
no grandchildren [from a son], no matter how much lower in
descent.

e quarter [share] is:

1. For the husband with a child,1485 or [with] a grandchild, 1486
even if lower in descent,
2. For the wife, when the deceased [husband] has no children or
grandchildren [from a son].

e eighth [share] is for wives with a child,1487 or a grandchild

[from a son].

e two-thirds [share] is for every two or more of those whom a

half is their fixed share, except the husband.

e one-third [share] is for the mother, when the deceased has:

1. No child,
2. No grandchild [from a son], or
3. Two or more brothers or sisters.

715
 A third [share] of whatever remains is assigned to her as a fixed
share in two cases,1488 and they are [in the presence of ]:
1. A husband and both parents [of the deceased], or
2. A wife and both parents [of the deceased],1489
so he has a third of whatever remains after the fixed shares of the
husband or wife.1490

It is [also] for every two or more uterine siblings, the males of

them and the females of them being equal in that.1491

A sixth is the fixed share of seven [persons]:

1. Each of the parents along with a child or a son’s child,1492
2. e mother along with siblings,1493
3. It is for grandmothers [with a child or a grandchild [from a
son]],1494,1495
4. e grandfather1496 with a child or a grandchild [from a son],
5. Daughters of a son (granddaughters) along with a daughter,
6. Sisters from the father along with a full sister, and
7. A single uterine sibling.

E l I h
716
 Eclipses in Inheritance

1. Grandmothers are dropped [from the inheritance] because of

[the presence of ] the mother,
2. e grandfather, brothers and sisters [are dropped] because of
[the presence of ] the father.

And the uterine sibling is dropped [from the inheritance] because

of any one of four [persons]:
1. e child,
2. e grandchild,
3. e father, and
4. e grandfather.

When the daughters take [their] two-thirds in full, the

granddaughters are dropped, unless there is a grandson [from a son]
at their level or below them, so he agnatises1497 them.

When full sisters have taken [their] two-thirds in full, the agnatic
sisters are dropped, unless there is with them a brother who agnatises
them.

RESIDUARIES (‘A ABĀT)

717
 RESIDUARIES (‘AṢABĀT)

e closest residuaries (‘aṣabāt) are:

1. e sons, then
2. eir sons, then
3. e father, then
4. e [paternal] grandfather, then
5. e sons of the father, and they are the [agnatic] brothers, then
6. e sons of the grandfather, and they are the paternal uncles,
and then
7. e sons of the great-grandfather.1498

When the sons of the father are level in one class, then the more
deserving of them is whoever is from the [same] mother and
father.1499

e son, the grandson [from a son] and the brothers share1500

with their [respective] sisters [according to]: “For the male there is
the equivalent of the share of two females.”1501

Apart from these residuaries, their males alone inherit [and] not
their females.1502

718
 If there is no agnate [residuary] relative, then the residuary is the
master who sets free [if the deceased was his freed slave], then the
closest, then the next closest from the agnate relatives of the master.

EXCLUSION FROM INHERITANCE (ḤAJB)

e mother is excluded from a third [of the inheritance] [but

instead receives] a sixth by [the presence of ]:
1. A child,
2. A grandchild [from a son], or
3. Two brothers.

e residue from the daughters’ fixed share is for the grandsons

and their sisters [on the basis of ]: “For the male there is the
equivalent of the share of two females.”1503

e residue from the full sisters’ fixed share is for the agnatic
brothers and sisters [on the basis of ]: “For the male there is the
equivalent of the share of two females.”

719
 When someone leaves a daughter, and granddaughters by a son
and grandsons by a son, then the daughter has a half and the
remainder is for the grandsons and their sisters, [on the basis of ]:
“For the male there is the equivalent of the share of two females.”

[And] likewise, the residue from the full sister’s share is for the
agnatic brothers and sisters [on the basis of ]: “For the male there is
the equivalent of the share of two females.”

Whoever leaves behind two sons of a paternal uncle, one of whom

[also] is a uterine brother,1504 then the [uterine] brother has a sixth,
and the remainder is [shared] between the two of them in two halves.

e Issue of Mushtarakah

Mushtarakah is that a woman leaves behind a husband and a

mother – or a grandmother, [some] uterine brothers and one full
brother, then the husband has a half, the mother a sixth, the uterine
brothers a third and there is nothing for the full brothers.

720
 REDISTRIBUTION OF RESIDUE (RADD)

When there are no residuary heirs, the excess after the fixed shares
of those who have shares (dhawū’s-sihām), is redistributed among
them according to their shares, except to the spouses.

e [unintentional or deliberate] homicide does not inherit from

the [one whom he] killed.

Disbelief (kufr) is one religion;1505 its people inherit because of it

[from one another], but the Muslim does not inherit from the
disbeliever nor the disbeliever from the Muslim.

e property of the renegade is for his Muslim heirs. Whatever he

had earned during his state of reneging [on Islam] is fay’-booty.

When a group [of people] drown or a wall falls on them,1506 and

it is not known who amongst them died first, then the property of

721
each one of them is for their heirs who are living.1507

When two close relationships are united in a Magian, such that if

they separated into two [distinct] persons, one of the two would
inherit with the other, [the Magian], [in such a case] would inherit
from them both.

e Magian does not inherit by the invalid marriages which they

deem lawful in their religion.1508

e residuary heirs of the illegitimate child and [of ] the child of

[a couple who have engaged in] imprecation (mulā‘anah)1509 is the
master of their mothers.

Whoever dies and leaves behind an unborn child, his property1510

remains suspended until his wife delivers her child,1511 according to
the verdict of Abū Ḥanīfah, may Allah have mercy on him.

722
 According to Abū Ḥanīfah, may Allah have mercy on him, the
grandfather has more right to the inheritance than the brothers. Abū
Yūsuf and Muḥammad, may Allah have mercy on them, said that he
shares with them [equally] unless the [act of ] sharing reduces [the
share] for him to less than a third.

When there are grandmothers joined together, then the one [who
is] the closest of them has a sixth.

e grandfather excludes his own mother.1512

e mother of the maternal grandfather does not inherit any

share.

Every grandmother excludes her own mother.

RELATIONS BY THE WOMEN’S SIDE

(DHAWŪ’L-ARḤĀM)

723
 When the deceased has no agnate residual heirs (‘aṣabah) and no
[Qur’ānic possessors of ] fixed shares (dhū sahm), relations by the
women’s side (dhawū’l-arḥām) inherit him. ey are ten:
1. A child of a daughter,
2. A child of a sister,
3. A daughter of a brother,
4. A daughter of a paternal uncle,
5. A maternal uncle,
6. A maternal aunt,
7. A maternal grandfather,
8. A paternal uncle of the mother,
9. A paternal aunt,
10. A child of a uterine brother,
and whoever is connected through them.

e most deserving of them is he/she who is:

1. From the children of the deceased, then
2. e children of the parents, or of either of them, and they are
daughters of brothers and children of sisters, then
3. Children of both parents of his parents, or of either one of
them, and they are maternal uncles, maternal aunts and

724
 paternal aunts.

When two [distinct] heirs are level at any stage, then the more
deserving of them is the one who is [closer by being] connected
through an heir, and the closer of them is more deserving than the
further of them.1513

e maternal grandfather is more deserving than the child of the

brother and [the child] of the sister.

e master who sets free is more deserving to the residue of the

share of those who have fixed shares when there is no residual heir
other than him.1514

e master in the contract of clientage (mawla’l-mawālāh)

inherits.1515

When the freed slave leaves behind the father of his master and
the son of his master, his property is for the son, according to
them.1516 Abū Yūsuf, may Allah have mercy on him, however, said
that the father has a sixth and the son the remainder.

725
 If [the freed slave] leaves behind [both] the grandfather of his
master and the brother of his master, then the property is for the
grandfather, according to Abū Ḥanīfah, may Allah have mercy on
him, but Abū Yūsuf and Muḥammad, may Allah have mercy on
them, said that it is for both of them.

Clientage (walā’) cannot be sold or gifted.

CALCULATION OF SHARES (ḤISĀB AL-

FARĀ’IḌ)

When, in a case, there is a half and a half, or a half and the

remainder, its basis is two.1517

If there is a third in it and the remainder, or two-thirds and the

remainder, then its basis is from three.1518

If there is a quarter in it and the remainder, or a quarter and a

half, then the basis is from four.1519

726
 If there is an eighth in it and the remainder, or an eighth and a
half, then the basis is from eight.

If there is a half and a third in it or a half and a sixth then its basis
is from six.

[e basis of decision] may rise to seven, eight, nine and ten.1520

If there is with the quarter a third or a sixth, then its basis is

twelve, and that may rise to thirteen, fourteen and fifteen.

If there is with the eighth two-sixths or two-thirds, then its basis

is twenty-four, and it may rise to twenty-seven. When the issue is
[fully] distributed between the heirs then that has worked out
correctly.

727
 If the shares of a group of them do not properly divide up, then
multiply their number [of sharers] by the basis of the case, and adjust
it if it needs to be adjusted. Whatever is produced, the case will work
out correctly with that, like:

A wife and two brothers – the wife has a quarter share and the
brothers have the remainder: the three-quarters. It does not divide
between the two [brothers equally]. You multiply two by the basis1521
in the case and it becomes eight [shares]. e issue works out
correctly with that.1522

If their shares agree with their number, then multiply their

highest common factor (wifq) with the basis of the case, like:

A wife and six brothers – the wife has a quarter and the brothers
have three shares [i.e. the remaining three-quarters] which do not
divide [fully] amongst them. You multiply a third of their number by
the basis of the case and from that the case will work out
correctly.1523

728
 If the shares of two parties or more do not [fully] distribute,
multiply [the shares of ] one of the two parties by [those of ] the
other. en, [multiply] the aggregate with [the shares of ] the third
party. en, [multiply] the aggregate with the basis of the case.

If the numbers are equal, either of the two will be sufficient for
the other, like two wives and two brothers; you multiply two by the
basis of the case.1524

If one of the two numbers is a factor of the other, then the larger
[number] is sufficient for the smaller, such as four wives and two
brothers; when you multiply by the four, it suffices you for the
other.1525

When one of two numbers conforms to the other, you multiply

the highest common factor of one of the two by the aggregate of the
other. en, [you multiply] the aggregate by the basis of the case,
such as four wives, one sister and six paternal uncles; six conforms to

729
four [in being divisible] in half. You multiply half of one of them by
the aggregate of the other,1526 then [you multiply] the aggregate by
the basis of the case, it becomes forty-eight,1527 and from that the
case works out correctly.

When the case [works out] correctly, multiply the shares of each
heir by the inheritance, then distribute the aggregate on account of
whatever share is correct,1528 and the right of the heir will be
produced [in this manner].1529

When the inheritance has not been distributed until one of the
heirs dies: if whatever he was receiving from the first deceased,
divides amongst his heirs, then both cases will work out correctly
according to how the first worked out correctly, but if it does not
divide, the share of the second deceased will work out correctly
according to the manner which we have mentioned.1530 en [the
share of ] one of the two cases will be multiplied by the other, even if
there is no common factor between the shares of the second deceased
and that according to which the share worked out correctly.1531

730
 If their shares do have a common factor, then multiply [the
highest common factor of ] the second case by the first. Whatever is
aggregated, both cases will work out correctly. Everyone who has
something [of inheritance] from the first case, it is multiplied with
whatever the second case has worked out correct with, and whoever
has something from the second case, it is multiplied with the highest
common factor of the inheritance of the second deceased.1532

When the issue of abolishment (munāsakhah) [works out]

correctly and you wish to know what each one would receive
according to calculation in dirhams, you divide whatever the case was
correct on with forty-eight [grains].1533 Whatever proceeds, you
would take that for him as a measure from the shares of each heir.1534

731
 APPENDIX ON ZAKĀH
TABLE TO SHOW RATES OF ZAKĀH IN
CAMELS
No. of Camels Amount of No. of Amount of
(Niṣāb) Zakāh Camels Zakāh
(Niṣāb)
0—4 0 125 — 129 1 goat + 2
ḥiqqahs
5—9 1 goat (1—yr 130 — 134 2 goats + 2
old) ḥiqqahs
10 — 14 2 goats 135 — 139 3 goats + 2
ḥiqqahs
15 — 19 3 goats 140 — 144 4 goats + 2
ḥiqqahs
20 — 24 4 goats 145 — 149 1 bint
makhāḍ + 2
ḥiqqahs
25 — 35 1 bint makhāḍ 150 — 154 3 ḥiqqahs
36 — 45 1 bint labūn 155 — 159 1 goat + 3
ḥiqqahs
46 — 60 1 ḥiqqah 160 — 164 2 goats + 3
ḥiqqahs

732
61 — 75 1 jadha‘ah 165 — 169 3 goats + 3
ḥiqqahs
76 — 90 2 bint labūns 170 — 174 4 goats + 3
ḥiqqahs
91 — 120 2 ḥiqqahs 175 — 185 1 bint
makhāḍ + 3
ḥiqqahs
186 — 195 1 bint labūn +
3 ḥiqqahs
ereafter, the obligation is refreshed;
196 — 200 4 ḥiqqahs
thus, for every five camels over 120,
200+ is theme will
there is one goat, and so forth.
continue as it started from
150 camels onwards.

TABLE TO SHOW RATES OF ZAKĀH IN

BOVINES
No. of Cows/Buffaloes (Niṣāb) Amount of Zakāh
0 — 29 0
30 — 39 1 tabī‘ or tabī‘ah
40 — 59 1 musinn or musinnah
60 — 69 2 tabī‘s or tabī‘ahs
70 — 79 1 musinnah + 1 tabī‘
80 — 89 2 musinnahs
90 — 99 3 tabī‘s

733
 100 — 109 2 tabī‘s + 1 musinnah
It is irrelevant whether the tabī‘/musinn is a male or female; the
payment of zakāh can be made in either.
Note: 1 tabī‘ is equal to 30 bovines and 1 musinn is equal to 40
bovines. is table corresponds to these amounts and eases the
calculation of zakāh therein.

TABLE TO SHOW RATES OF ZAKĀH IN

OVINES (SHEEP AND GOATS)
No. of Goats/Sheep (Niṣāb) Amount of Zakāh
0 — 39 0
40 — 120 1 goat
121 — 200 2 goats
201 — 399 3 goats
400 — 499 4 goats
500 — 599 5 goats
600 — 699 6 goats
700 — 799 7 goats
800 — 899 8 goats
900 — 999 9 goats
1000 — 1099 10 goats
… and so on ( + 1 goat for every 100 ovines).

734
 GLOSSARY

A
ab father.
‘abd slave, bondsman.
‘abd maḥjūr legally incompetent slave.
ābiq fugitive slave.
abraṣ leper.
adab (pl. ādāb) conduct, moral value,
etiquette, manners.
‘ādālah moral uprightness, justice; leg. the
condition of being a witness in legal
proceedings, esp. in a court of law.
‘ādī land which is barren from an unknown
time.
‘adl (also ‘ādil) someone who is morally
upright and just, in order to be a legal
witness.
āfāqī someone who is from beyond the
mīqāt.
ahl al-ḥarb enemy fighters, combatants, those
fighting in war, those from enemy

735
 territory dār al-ḥarb.
ahl al-khiṭṭah original and native inhabitants,
authorised by the authorities to build
and settle in lands conquered by the
Muslims.
Ahl al-Kitāb (sing. kitābī, fem. kitābiyyah) the
People of the Book, referring to the
Jews and christians.
‘ajam non-Arab.
ajīr (pl. ujarā’) someone who contracts to
work for wages.
ajīr khāṣṣ employee; someone who is employed
for wages by a specific person or
company.
ajīr mushtarak hireling; someone who works for
different people as a self-employed
person.
‘ājiz insolvent, broke, incapable.
ajnabī (fem. ajnabiyyah) foreign, alien; non-
maḥram, stranger.
akh brother.
akh li-ab brother from the same father but
different mother, consanguine brother,

736
 agnate brother.
akh li-ab wa’l-umm full brother, brother from both parents,
brother- german.
akh li-umm uterine brother, brother from the same
mother but a different father.
amah (pl. imā’) female slave, bondmaid.
Amānah trust.
‘amd deliberation, intention, willfulness; qatl
al-‘amd is willful homicide.
‘amm paternal uncle, father’s brother.
‘ammah paternal aunt, father’s sister.
āniyah pot, utensil.
‘āqilah blood-relatives; male agnates of the
offender, or ‘aṣabah, who are liable to
pay diyah to the heirs of the slain in the
cases of qatl al-khaṭa’ and qatl shibh al-
khaṭa’. ey may also be his co-
members of the dīwān register of
fighting men (see also ma‘āqil).
‘aqīq carnelian.
aqṭa‘ amputee.
‘arḍ (pl. ‘urūḍ) goods, merchandise.
‘āriyah commodity loan.

737
arsh estimated penalty for injury against the
body, amercement.
‘aṣabah (pl. ‘aṣabāt) consanguine member of the
family, agnatic relatives; the residuaries
in the distribution of inheritance who
receive what is left over after those who
inherit fixed shares (farā’iḍ) have
inherited.
aṣl source, base, root, foundation,
principle.
‘awl in inheritance the method of
adjustment by which fractional shares
are allocated.
āyah verse, sign, miracle.
āyisah a woman in menopause.
‘ayn a definite item that is defined by
weight, measurement or other method
of quantity determination. In a
contract, such an item is present and
physically accessible by the possessing
party; tangible property; cash, i.e.
dinars and dirhams, as opposed to
credit.
ayyām (sing. yawm) days.

738
‘azl coitus interruptus, withdrawal of the
penis and ejaculation outside the
vaginal cavity.

B
badal substitute.
badanah cow or camel.
bā’i‘ seller.
ba‘īd far, distant, later.
bā’inah a woman who has been finally divorced
with talāq bā’in.
ba‘īr camel, esp. for carrying loads.
bāligh someone who has attained the age of
majority or puberty; a major.
baqar cows; includes large domesticated
bovines such as buffaloes, etc. that are
reared for dairy or meat products.
bay‘ sale, exchange, barter, trade.
baynūnah ṣughrā final divorce resulting from the
termination of the ‘iddah following a
talāq raj‘ī – a divorce in which the
husband has the right to return his wife

739
 to him within her ‘iddah – waiting
period.
baynūnah kubrā irrevocable divorce resulting from the
issuance of the third divorcement.
bayt al-māl treasury.
bī‘ah synagogue.
bid‘ah innovation.
biḍā‘ah merchandise; the submission of
property or wealth to another so that
the latter may carry on business and
submit its profits to the former.
bikr (pl. abkār) virgin.
billawr crystal.
bint aṣ-ṣulb proper daughter.
bint labūn two-year old she-camel; camels that are
daughters of a suckling camel and that
have begun their third year.
bint makhāḍ one-year old she-camel; camels that are
daughters of a pregnant camel and that
have begun their second year.
bulūgh reaching puberty; attaining the age of
majority.

C
740
C

D
dahr time, era.
dalīl evidence, proof, instruction, direction.
dam animal sacrificed as atonement.
ḍamān liability, compensation, guarantee,
surety.
ḍamānah see kafālah.
dāniq a silver coin worth one-sixth of a
dirham.
dār al-baghy rebellious territory.
dār al-ḥarb enemy territory, hostile land, war zone,
hostile non-Muslim state.
dār al-Islām area under jurisdiction of Islamic
governance.
da‘wā (pl. da‘āwā) lawsuit, claim, legal
proceedings.
ḍay‘ah estate, landed property, real estate,
productive land, valuable land.
dayn debt.
dhabḥ lawful slaughter, performed by cutting
the four main vessels: the trachea, the

741
 oesophagus and the two jugular veins.
dhabīḥah slaughtered animal.
dhahab gold, it derives from the arabic verb “to
go”.
dhakāh slaughter performed according to
prescribed conditions.
dhawū’l-arḥām distant kindred; in inheritance distant
kindred esp. uterine relations, those
who have not been allotted any share in
the Qur’ān and Sunnah.
dhawū’l-qurbā close relatives, near kindred.
dhimmī (fem. dhimmiyyah) a non-Muslim
living under Muslim governance.
dhirā‘ cubit; instrument of measure, usually
from the elbow to the tip of the middle
finger.
dhū raḥm maḥram (fem. dhāt raḥm maḥram) male relative
of the prohibited degree for marriage
due to consanguinity, cognate relative.
dhū sahm (also dhu’l-farḍ, pl. dhawū’l-furūḍ)
allottee, someone who has been allotted
a share of inheritance.
dīwān register of fighting men in particular;

742
 archives, records, accounts, office,
cabinet.
diyah (pl. diyāt) compensation paid to the
victim or to his successors for the loss
of limbs or of life; wergild.
diyah mughallaẓah exorbitant, or enhanced, diyah.
diyah mukhaffafah inexorbitant, or reduced, diyah.

F
faḥl male. lit. stallion.
faqīr needy, poor; someone who owns less
than the niṣāb.
far‘ branch, shoot, subsidiary, secondary,
surplus; also derivative ruling.
faraq (pl. afrāq) thirty-six riṭls.
farḍ ‘ayn universal, or individual, obligation; a
definite obligation which each
individual Muslim is required to
perform.
farḍ kifāyah communal, or collective, obligation; a
definite obligation for the performance

743
 of which a sufficient amount of persons
are required to respond, such that if
some undertake it the rest are absolved
of any guilt, but if no one undertakes it
all will be guilty of wrongdoing.
farīḍah (pl. farā’iḍ) obligation, divine precept;
in the Qur’ān the fixed share of an heir.
farj external genital organs.
fasād vitiation; voidness, corruption or
irregularity; lacking necessary
condition(s).
fāsid vitiated; void, corrupt, irregular; lacking
one or more of the conditions necessary
to fully establish an act.
fāsiq deviant, dissolute, morally wayward,
sinner.
faskh repulsion, rescission, cancellation,
abrogation, annulment.
fay’ booty or property captured by Muslims
from enemy forces without fighting.
fiḍḍah silver.
fidyah ransom; redemption by donation –
material or otherwise – due to neglect
or omission of a religious requirement.

744
fiqh Islamic practical law (in-depth
understanding of ).
fiṭrah natural disposition.
fulūs copper coins, pennies, small change,
petty cash.

G
ghanam sheep and goats; includes small
domesticated ovines that are reared for
dairy or meat products.
ghānim conquering fighter in an army.
ghanīmah spoils, booty.
gharīm one party to a debt; the debtor, as
against the creditor; the creditor, as
against the debtor.
ghaṣb expropriation, usurpation, coercion,
extortion, illegal seizure.
ghāṣib expropriator, usurper; someone who
illegally seizes the property of another.
ghāzī someone who takes part in a military
expedition.
ghulām a boy; also used for a slave.
ghurrah compensation paid for willful criminal

745
 miscarriage or for causing the loss of
the foetus.
ghusl major ritual purification, bathing.

H
ḥadd (pl. ḥudūd) limit, restrictive divine
ordinance, divine legal limit,
punishment explicitly prescribed by
Allah.
hady offering, sacrificial animal at ḥajj.
ḥajb deprivation, exclusion, esp. of
inheritance where the presence of an
heir excludes another from inheriting.
ḥajb ḥirmān total exclusion.
ḥajb nuqṣān partial exclusion.
ḥajj pilgrimage to Makkah.
ḥajjām cupper.
ḥājjī (also al-ḥājj) pilgrim, honorific title of
someone who has performed the
pilgrimage to Makkah – the ḥajj.
ḥajr interdiction, legal incompetence.
ḥākim ruler, king, person of legal or political
authority; mediator, arbitrator,

746
 intercessor, referee, umpire, broker,
adjudicator.
ḥalāl lawful, permitted.
ḥalālah making lawful; the impermissible
legalisation of remarriage after all three
divorcements have been exhausted by a
legal artifice.
ḥalf oath.
ḥālif someone who makes an oath; ally,
confederate.
ḥalq throat, pharynx.
ḥāmil a pregnant woman; someone who
carries baggage, a porter.
ḥaml foetus, embryo; baggage, luggage.
ḥānūt shop, store, tavern.
ḥaqīqī (fem. ḥaqīqiyyah) real as opposed to
metaphorical; corporeal, physical.
ḥarām unlawful, forbidden.
al-Ḥaram the parts of Makkah in immediate
proximity to the Ka‘bah and excluding
al-Ḥill.
ḥarb military combat, armed fighting, battle,
war.

747
ḥarbī enemy combatant, belligerent.
ḥarīm perimeter; boundary.
ḥarīr silk.
ḥawālah transfer of a debt; endorsement.
ḥiqqah camels ready for riding and carrying
loads and that have begun their fourth
year.
ḥīlah stratagem; a method of legalising that
which is, under normal circumstances,
not legal.
al-Ḥill the outskirts of Makkah not including
al-Ḥaram.
ḥīn appointed time.
ḥinth to do wrong, to violate, esp. al-ḥinth
fi’l-yamīn the violation of an oath,
perjury, falsely swearing an oath, etc.
ḥiqqah three-year old she-camel.
ḥirz a place of protection; a place of safe
disposal; sanctuary.
ḥudūd see ḥadd
ḥukmī (fem. ḥukmiyyah) legal.
ḥukm shar‘ī a primary rule of law.
ḥulqūm windpipe, trachea.

748
ḥurr (fem. ḥurrah) freeman.

I
i‘ārah lending.
‘ibādah worship, an act of worship.
ibāḥah permissibility.
ibāq fugitiveness of a slave.
ibil camels.
ibn aṣ-ṣulb proper son.
ibn makhāḍ one year old he-camel; camels that are
male offspring of a pregnant camel and
that have begun their second year
‘iddah waiting period before a woman can
remarry following divorce or the death
of her husband.
‘Īd al-Aḍḥā the Muslim festival which takes place
in the month of Dhu’l-hijjah, greater
bairam or kurban Bairami.
‘Īd al-Fiṭr the Muslim festival which follows the
month of Ramadan, lesser bairam.
iḍṭibā‘ whilst donning the iḥrām, to place the
top sheet under the right shoulder and
over the left shoulder.

749
iḥdād mourning of the divorcée or the widow,
usually by refraining from adorning
herself.
iḥṣān the quality of being muḥṣan (see
muḥṣan); unblemished reputation,
chaste,
iḥyā to revive, give new life to, to renew.
iḥyā al-mawāt to revive barren land, cultivation of
virgin land.
ījāb offer; compulsion.
ijārah hire, lease, rent; letting out on rent.
ijmā‘ the consensus of Muslim jurists
(mujtahids), within a specific point in
time, after the death of the Prophet ,
on a rule of law.
ijtihād the intense effort exerted by a qualified
jurist in the quest to deduce laws from
legal sources. In Islam, those agreed-
upon legal sources are the Qur’ān, the
Sunnah, the consensus of jurists and
analogy.
ikrāh coercion, duress, compulsion,
intimidation.
īlā’ vow of continence; vowing voluntary

750
 abstention from sexual activity which if
it is for a period of four months or more
can lead to divorce.
‘illah underlying cause, ratio decidendi.
imām someone who leads Muslim prayers.
Imām leader; Muslim legal scholar of the
highest degree, or amongst the elite.
‘innīn impotent male.
in sha Allāhu ta‘ālā if Allah, exalted is He, wills.
iqālah negotiated rescission of a contract,
dismissal.
‘iqār real estate, immovable property, real
property, landed property.
iqrār confession, acknowledgement;
acceptance.
irtithāth linger, survive, delay of death, etc.
istiḥṣān application of discretion, juristic
preference.
istīlād the act of becoming, or making, an
umm al-walad.
‘itāq setting a slave free, emancipation,
manumission of a slave or bondmaid.

J
751
J
Jabariyyah a school of thought believing in the
inescapable fate of man; fatalism.
jadd grandfather.
jaddah grandmother.
jadh‘ah four-year old she-camel; camels that
have entered their fifth year.
jadha‘ goat of six months and over.
jā’ifah wound that penetrates to the body
cavity.
jamrah (pl. jimār) pillar that pilgrims stone
during ḥajj.
janābah major ritual impurity requiring ghusl.
jāriyah a girl; a slave-girl, a bondmaid.
jihād war waged by Muslims according to the
rules laid down for it; to struggle, to
strive.
jināyah (pl. jināyāt) offence, crime, felony.
jins genus, type, kind, category, species.
jizyah capitation on non-Muslims living
under Muslim governance.
ju‘l payment, wages, remuneration; reward.
junub major ritually impure person requiring a

752
 ghusl.
jurḥ wound, injury.

K
kafālah (also known as ḍamānah) guaranty,
surety; bail.
kafālah bi’l-māl surety of property or wealth.
kafālah bi’n-nafs surety of person.
kafīl someone who is surety, guaranty; a
guarantor of payment or performance if
another fails to pay or perform.
kāfir (fem. kāfirah) disbeliever; non-Muslim.
kanīsah church.
kayl a dry measure for identifying the
quantity of commodities that are
measured by a three- dimensional
object, like wheat, salt, etc.; a dry
measure of volume.
khabīth evil, satanic, lit. foul or malodorous,
esp. person.
khāl maternal uncle, mother’s brother.
khālah maternal aunt, mother’s sister.
khalīṭ associate; someone who has a share in

753
 goods.
khalwah seclusion.
khamr wine, alcoholic beverage, especially that
which is produced from grapes.
kharāj tax levied on the produce of land owned
by dhimmīs.
kharājiyyah accountable by way of kharāj.
khārij outsider; in legal cases where possession
of an item is involved, he is the one
who is not in possession, as against
someone who has possession (qābiḍ).
khaṣī a castrated or emasculated male,
castrate.
khaṣm antagonist, adversary or adverse party,
opponent or opposing party in a
lawsuit, litigant, contender.
khaṭa’ mistake; qatl al-khaṭa’ is homicide by
negligence or misadventure.
Khaṭṭābiyyah a sub-sect of the Rawāfiḍ (Shī‘ah) who
testify in favour of anyone who swears
an oath upon his claim.
Khawārij seceders; a dissident school of thought
who rose in insurrection in the time of

754
 the first community.
khiyār choice, option.
khiyār ar-ru’yah the option of seeing or examining the
goods.
khiyār ash-sharṭ stipulated option of rescinding a
contract or sale due to blemish or
defect, stipulated right of cancellation.
khul‘ divorce at the instance of the wife.
khums a fifth; the share of war spoils that goes
to the leader.
khunthā hermaphrodite.
khunthā mushkil an indistinguishable hermaphrodite,
one whose biological inclination
towards either gender is difficult to
establish.
khuṣūmah lawsuit; argument; dispute.
kināyah implied, implicit, metonymy, allusion,
figurative.
kiswah clothing, dress.
kitābah contract between a master and his slave
in which the latter buys his freedom.
kitābī (fem. kitābiyyah) scriptural; someone
who belongs to the religions of Judaism

755
 or Christianity (see also Ahl al-Kitāb).
kufr disbelief, infidelity; lit. covering over
[the truth]; ingratitude; rejection.

L
laban al-faḥl lit. the milk of the man i.e. the man due
to whom the woman witnesses milk in
her breasts after conception.
labbah collarbone, clavicle, upper bone of the
chest.
laqīṭ foundling.
li‘ān imprecation by both parties with
regards to the accusation of unlawful
sexual intercourse made by the husband
against the wife, where the former is
unable to produce four witnesses; sworn
allegation of adultery against spouse;
imprecation.
liṣṣ thief, robber.
luqṭah found property.

M
ma‘āqil (sing. ma‘qil, meaning sanctuary). Leg.
it refers to those responsible to the

756
 victim, or to the victim’s heirs, for an
offence committed by the offender,
usually in the cases involving diyah (see
also ‘āqilah).
mabī‘ goods of sale, saleable item(s),
commodity, object of sale.
madhy or madhī pre-seminal or pre-ejaculatory fluid,
sperma-torrhoea.
ma’dhūn authorised slave, a slave who has been
authorised by his master to carry out
specific tasks on the behalf of the latter,
such as trade, etc.
maḍrūbah minted currency; currency in the form
of coins.
mafqūd missing person, someone or something
that is lost.
maghṣūb that which has been expropriated,
usurped; seized property.
maghṣūb minhu the victim of ghaṣb, whose property has
been usurped.
maḥqūn ad-dam one whose bloodshed is to be
prevented.
mahr (also ṣadāq) dowry, what the groom
gives to his bride as a gift on their

757
 wedding.
mahr al-mithl the customary and reasonable amount
of dowry that a woman of her status
would receive.
maḥram spouse, or relative of the prohibited
degree of marriage.
Mahrjān Persian Autumn Festival.
majbūb castrate, someone whose genitals have
been amputated.
majlis session, sitting; court of the judge.
makfūl ‘anhu primary obligee.
makfūl bihī principal; primary obligor.
makfūl lahū obligee, for whom the surety is made,
creditor.
maktūb ilayhi addressee, to whom a letter or other
postable item is addressed or
dispatched.
māl property, wealth, stock.
mann a maund; one maund is equivalent to
815.39 grammes.
maqdhūf someone who is accused without any
substantiation of unlawful sexual
intercourse.

758
maqṭū‘ ‘alayhi victim of banditry.
ma‘qūd ‘alayhi item that is the subject of a contract.
mar’ food pipe, oesophagus.
maraḍ al-mawt terminal illness, final illness, that which
is connected to one’s death, when one is
on his/her deathbed.
marhūn the item pledged as security against a
loan or debt.
mashhūd ‘alayhi the person testified against in a legal
decision, the one against whom a
testimony is made.
mashjūj victim of sḥajjah.
mā ujriya majrā al-khaṭa’ homicide that resembles homicide by
negligence or misadventure (also known
as qatl qāi’m al- maqām bi al-khaṭa’ and
qatl shibh al-khaṭa’).
mawāt barren, uncultivated or virgin land.
mawhūb the object of donation, the gift, benefit
or favour.
mawhūb lahū donee, beneficiary, the recipient of a
gift.
mawla’l-mawālāh master in the treaty of amity.
mawla’n-ni‘mah the master who sets a slave free;

759
 benefactor.
mawqūf ‘alayhi the beneficiary of the endowment.
maytah dead body, carrion; meat not
slaughtered according to sharī‘ah.
milk ownership.
milk yamīn lawful ownership of slaves.
mi‘rāḍ blunt object.
miskīn destitute person, someone who owns
nothing of property or goods.
mithl fungible; reasonable; similar;
customarily reasonable.
mithl al-qīmah reasonable price, customary value.
mizmār a musical instrumental of the
woodwind family, like the oboe or flute.
mu’ajjal postponed, deferred, given time.
mu‘ajjal immediate, prompt, e.g. in the prompt
portion of the dowry payment.
mu‘ār subject of i‘ārah; the commodity that is
lent.
Mu‘aṭṭilah a religious sect which denies the
attributes of Allah.
mūdā‘ bailee; trustee; custodian.
mudabbar (fem. mudabbarah) a slave who is set

760
 free at the death of his master.
muḍārabah trade contract in which the capital
provider shares the profits with the
trader but the former alone bears the
losses (also known as qirāḍ), silent
partnership, speculative partnership.
muḍārib trader in a contract of muḍārabah.
mudda‘ā ‘alayhi defendant, respondent, one against
whom a claim or charge is brought in a
lawsuit.
mudda‘ī plaintiff, claimant, appellant, petitioner,
the one who initiates a lawsuit.
mudhābanah throwing the commodity onto the
ground, or elsewhere, in order to settle
the sale.
mūdi‘ depositor; someone who places
something on trust with another; bailer.
muflis bankrupt, insolvent, someone reduced
to surviving on fulūs (small change).
muḥābāh obligingness, nepotism.
muḥakkim mediator, arbitrator, intercessor, referee,
umpire, broker, adjudicator; someone
who appoints a muḥakkim or ḥākim.

761
muḥāl creditor.
muḥāl ‘alayhi someone to whom a debt is endorsed or
transferred (esp. ḥawālah).
muḥīl someone transferring a debt; a debtor.
muḥrim someone who has entered the state of
iḥrām for ḥajj or ‘umrah, someone who
is wearing the iḥrām. muḥṣan (fem.
muḥṣanah) married man or someone
who has been married and
consummated the marriage, someone
who is safeguarded from the evils of
zinā by marriage.
mu‘īr lender.
mūjir landlord; lessor; employee; hireling.
mujtahid a fully qualified and independent jurist
(see ijtihād).
mukārī someone who hires animals; donkey-
drover, muleteer.
mukātab (fem. mukātabah) a slave who has
entered into a contract with his master
that he will be set free upon payment of
an agreed amount, a slave who buys his
freedom from his master.
mukhannath effeminate.

762
mukrah coerced, compelled person.
mukrih compeller, someone who coerces.
mulā‘inah (masc. mulā‘in) the woman who makes
li‘ān.
mulāmasah an unlawful transaction whereby a man
can feel a garment but is not allowed to
unfold it or examine what is in it, or he
buys by night and does not know what
is in it.
mulḥam woven fabric.
mūlī someone who makes the vow of
continence or abstinence from sexual
intercourse from his wife.
multaqiṭ finder of a foundling or of found
property.
mu‘mar lahū donee, in a donation granted for life.
munāsakhah when subsequent heirs to a common
inheritance die and the inheritance is
not distributed until generations have
lapsed.
munfarid one who performs his prayer on his
own and not within a congregation.
muq‘ad disabled.

763
muqarr lahū someone in whose favour the
confession or the acknowledgement is
made.
muqāsamah (see qismah) distribution, partition.
muqirr someone who confesses or
acknowledges.
murābaḥah re-sale with profit.
murāhiq (fem. murāhiqah) adolescent, teenager,
one in his late teens.
murtadd (fem. murtaddah) apostate, renegade;
someone who leaves Islam and becomes
a disbeliever, having been a Muslim.
murtaddah see murtadd.
murtahin pledgee, mortgagee, to whom a pledge
is made.
mūṣā bihī that which has been bequeathed or
devised, the subject matter of the
bequest; bequest.
muṣālaḥ the party agreeing to the offer of a
settlement in a negotiated settlement
(ṣulḥ).
mūṣā lahū someone to whom a bequest is made,
devisee, the beneficiary of a will,

764
 legatee.
muṣāliḥ someone who initiates the negotiation
of a settlement.
musāqāh cropsharing when someone waters or
irrigates an orchard or the crops of
another for a share of the produce.
mushā‘ common property, shared property,
shared tenancy.
Mushabbihah a school of thought which ascribes
human characteristics to Allah,
anthropomorphisation of Allah,
anthropomorphism.
muṣḥaf a written copy of the Noble Qur’ān.
mushtarak common, collective, in which there is
more than one partaker; that which is
shared between many.
mushtarī buyer, purchaser.
mūṣī bequeather, devisor (in the case of real
estate), testator, one who makes a will
or bequest before he dies.
musinn (fem. musinnah) two-year old male calf.
muslam fīhi the subject-matter of the contract of
salam.

765
muslam ilayhi the person to whom advance payment is
made in a contract of salam.
muslim the one who makes the advance
payment in a contract of salam;
adherent of the dīn of Islam, someone
who submits peacefully to the will of
Allah, exalted is He.
mustaḥāḍah a menstruating woman.
musta‘īr borrower.
musta’jir tenant; lessee; hirer; leaseholder.
musta’min someone who is given assurance of
temporary protection, such as an enemy
combatant who enters Muslim lands for
any specific non-hostile activity, etc.
mut‘ah gift of consolation; temporary marriage.
muṭallaqah divorcée, a woman who has been
divorced.
mutaqāsim allottee in partition, someone at whose
instance a partition is made, applicant
for partition.
muwakkil someone who appoints the agent or
attorney; the principal in a contract of
agency.

766
muwallā appointed person, candidate, successor.
muwāthabah prompt assertion of a claim (esp. in the
presence of witness), as in the right of
preemption.
muzābanah the sale of fruit on trees in exchange for
picked fruit.
muẓāhir someone who commits ẓihār.
muzakkī someone who pays zakāh; someone
who attests to witnesses, someone who
declares another to bear the qualities
required under the rule of tazkiyat ash-
shuhūd.
muzāra‘ah cropsharing (also known as
mukhābarah, muḥāqalah and qirāḥ).

N
nabīdh an infusion of dates and/or raisins.
Sometimes alcoholic.
nadhr vow, pledge.
nafaqah supply of the means of living,
maintenance, expenditure.
nafy banishment, exile; negation.
naḥr sacrifice or slaughter performed by

767
 stabbing a creature in the jugular vein
in the lowest part of the neck (esp.
when slaughtering camels).
nā’iḥah professional, or occupational, mourner;
someone who cries in grievous
circumstances for wages.
najāsah impurity, filth.
namā’ growth, expansion, extension, natural
increase, increment, multiplication.
naqī‘ infusion.
naqīr a hollowed piece of wood.
nasab lineage, ancestry, kinship, genealogy;
descendants, progeny.
naskh to repeal, abrogate
nayroz Persian New Year’s Day.
nifās postnatal bleeding.
nikāḥ marriage contract; the institution of
marriage itself.
nikāḥ fāsid irregular marriage, invalid marriage
where one or more of the conditions of
the marriage have not been fulfilled.
niṣāb minimum amount of property obliging
payment of zakāh.

768
nitāj produce; the act of bearing offspring.
niyyah intention.
nukūl refusal to take an oath.
nushūz discord (marital); violation of marital
duties on the part of the husband or the
wife.

Q
qabā’ an outer garment with long sleeves.
qābiḍ the possessor, esp. of an item in a
lawsuit, as against the khārij.
qābilah midwife.
Qadariyyah a school of thought purporting to
believe in man’s freewill to the extent of
denying the Divine decree.
qadhf unsubstantiated accusation of unlawful
sexual intercourse.
qādhif one who, without substantiation,
accuses another of unlawful sexual

769
 intercourse, one who commits the
offence of qadhf.
qāḍī judge, adjudicator.
qafīz a volumetric measure equal to twelve
ṣā‘s, Ḥanafī 40.344 litres; others 32.976
litres.
qarḍ loan, credit.
qarīb near, close, soon.
qarīb al-bulūgh adolescent.
qārin someone performing ḥajj qirān.
qasāmah an oath-taking procedure in order to
establish the guilt of the accused;
effectively, it is the exact opposite of
compurgation.
qāsim distributor, one who is appointed to
distribute allotted shares.
qaṭā’if small triangular doughnuts fried in
melted butter.
qaṭ‘ aṭ-ṭarīq banditry, brigandage, armed robbery.
qāṭi‘ aṭ-ṭarīq (pl. quṭṭā‘ aṭ-ṭarīq) bandit, brigand,
armed robber.
qatl bi’s-sabab homicide by accidental cause.
qirāḍ see muḍārabah.

770
qiṣāṣ legally supervised retaliatory
punishment for bodily injury or killing.
qismah division, distribution.
qitāl war, battle, military combat, armed
fighting.
qiyām standing posture in prayer.
qubūl acceptance.
qur’ menstruation.

R
rabb al-māl owner of the property, of the capital, of
the stock.
raḍā‘ fosterage, suckling, breastfeeding.
rāhin someone who pledges or pawns
something as security for a loan.
rahn pledge, pawn, collateral; security for a
debt or loan.
raj‘ah retraction of divorce.
raj‘iyyah a woman who has been divorced with
ṭalāq raj‘ī.
ramal to walk briskly with a strong
intimidating gait esp. during the first

771
 three circuits when circumambulating
the Ka‘bah.
ramy pelting of stones esp. at the jamarāt
during ḥajj.
ra’s al-māl financial capital.
raṣāṣ lead.
Rawāfiḍ a school of thought belonging to the
Shī‘ah sect.
rāwiyah a large leathern bucket used for drawing
water from wells.
ribā usury.
riddah apostasy, reneging [on Islam].
riqq slavery, bondage.
ruḥā quern, hand mill.
rukhṣah exemption, concession, allowance.
ruqbā donation on surviving the other, gift on
succession.

S
ṣā‘ a cubic measure of four double
handfuls, equivalent to eight riṭls
according to the Ḥanafī school.
ṣabī minor; a boy who has not reached the

772
 age of majority nor attained puberty.
ṣadaqah in modern usage a voluntary charity.
However, in classical use it means both
the obligatory zakāh and voluntary acts
of giving.
ṣadaqat al-fiṭr (also zakāt al-fiṭr) legally prescribed
ṣadaqah given at the end of Ramadan.
safātij (sing. saftajah) bills of exchange like
money orders, cheques, etc.
safīh fool, stupid person.
sāḥah open land; public square; open field.
ṣāḥib al-ḥaqq in whom rights are vested, the rightful
individual.
ṣāḥib al-yad possessor.
Ṣāḥibān Imam Abū Yūsuf and Imam
Muḥammad, may Allah have mercy on
them both.
sahm share, lot, allotted portion.
ṣaḥīḥ sound, authentic, valid, complete.
salab spoils of war from the belongings of
one particular fallen enemy combatant.
salam forward buying; advance payment;
when one party in the sale pays in

773
 advance to the other party and the
other party delays surrendering the
item.
salas al-bawl incontinence of urine.
ṣarf exchange, currency transactions,
exchange of currency or precious
metals, such as gold, silver, etc.
ṣarīḥ express, explicit.
sariqah theft.
sariyyah detachment, a small raiding party.
ṣawm fasting, abstinence from food, drink
and conjugal relationships during
daylight.
ṣayrafiyyā money-changer, teller.
shafī‘ preemptor; the executor of preemption.
Shahādah testimony, certification, evidence,
witnessing.
shāhid witness.
shāhid al-aṣl (pl. shuhūd al-aṣl) original witness, a
witness to the actual event in question
with regards to the testimony in a legal
court.
shāhid al-far‘ (pl. shuhūd al-far‘) the subsidiary

774
 witness; a witness to the testimony of a
shāhid al-aṣl.
shahīd witness par excellence; martyr.
shājj someone who wounds someone with a
sḥajjah wound.
sḥajjah wound to the head.
sharikah, shirkah company, partnership.
sharikat al-abdān see sharikat aṣ-ṣanā’i‘.
sharikat al-amlāk partnership in which the parties have a
share in a physical item; physical
partnership.
sharikat al-amwāl see sharikat al-‘inān.
sharikat al-‘inān (also sharikat al-amwāl) partnership in
which all partners contribute capital
and share the profits and losses
according to a fixed measure.
sharikat al-mufāwaḍah partnership in which the partners
contribute their belongings and their
labour.
sharikat aṣ-ṣanā’i‘ (also sharikat al-abdān, at-taqabbul and
al-a‘māl) partnership in which the
partners contribute their labour in

775
 return for profits according to a fixed
measure.
sharikat al-‘uqūd partnership in which the parties
contribute either tangible goods, labour
or rights and non-tangible goods;
contractual partnership.
sharikat al-wujūh partnership in which the capital is
provided on credit.
sharīk partner, co-owner; sharer, partaker.
Shaykhān Imam Abū Ḥanīfah and Imam Abū
Yūsuf, may Allah have mercy on them
both.
shaykh fānī enfeebled old man.
shibh al-‘amd quasi-intentional; qatl shibh al-‘amd is
quasi- intentional homicide which does
not amount to murder but amounts to
culpable homicide.
shubhah doubt, uncertainty, confusion.
shuf‘ah preemption.
ṣinf sort, kind, category, type.
sīrah (pl. siyar) conduct, behaviour, manner;
biography (esp. of the Prophet

776
 Muḥammad ; military expedition,
campaign.
siyar see sīrah.
ṣulḥ negotiated settlement.
sulṭān ruler, king, someone in supreme
authority.
sunnah mu’akkadah emphasised, stressed or persistently
performed practice of the Prophet
Muḥammad .
sunnah ghayr mu’akkadah non-emphasised or irregularly
performed practice of the Prophet
Muḥammad .
Sunnah that which has been done,
recommended or tacitly approved by
the Prophet Muḥammad .

T
ta‘addī delict; a civil wrong; tort; a breach of
normal precautions.
tabī‘ (fem. tabī‘ah) one-year old male calf.
tadbīr committing to set a slave free after the
death of his master.
tafāḍul excess in weight or measure for the

777
 purpose of ribā.
taghlīẓ exorbitance, or enhanced. esp. diyah.
taḥāluf mutual swearing of oaths.
ṭahārah purity, the process of purifying.
ṭāhir pure, clean.
tahātur rebuttal, counter-evidence;
confrontation of evidences whereby
they cancel each other out (tahātur al-
bayyināt).
taḥlīl the act or procedure of making ḥalālah;
releasing oneself from iḥrām.
takbīr the saying of “Allāhu Akbar”.
taḥrīm the saying of the consecratory takbīr,
the initial saying of “Allāhu Akbar”
whilst raising both hands to the ears,
indicating the formal entry into the
prayer; prohibition.
takhyīr being given an option(s).
ṭalāq divorce.
ṭalāq bā’in final divorce.
ṭalāq raj‘ī revocable form of divorce, interlocutory
decree.
talbiyah specific repeatedly-pronounced words

778
 during ḥajj.
Ṭarafān Imam Abū Ḥanīfah and Imam
Muḥammad, may Allah have mercy on
them both.
taṣarruf transaction, disposal, discharge,
usufruct, disposition.
ta‘ṣīb see ‘aṣabah.
ṭawāf circumambulation of the Ka‘bah.
tawkīl the act of appointing an agent, the
appointment of a representative.
tawliyah re-sale without profit, at cost price;
appointing a guardian.
tawriyah dissimulation, when intentions or
beliefs are contrary to what one
expresses.
tayammum dry ablution, an alternative purification
or substitute for wuḍū’ and ghusl.
ṭaylasān pallium.
ta‘zīr discretionary punishment; that
punishment which is not defined
explicitly by the Qur’ān or the Sunnah;
legislated punishment.
tazkiyat ash-shuhūd the process of inquiry that the court

779
 employs to ascertain the eligibility and
standard of a witness, and whether the
witness is just or unjust, the attestation
of witnesses.
thaman price, payment, value.
thanī five-year old camel, two-year old bovine
or one-year old ovine.
thayyib a previously-married woman from a
marriage which was consummated.
thiqah trustworthy.
tola a unit of weight equal to 180 grains or
0.375 troy ounce (11.7 grams).
ṭuhr purity; the period of cessation of blood
discharge from the vagina between two
menstrual bleedings.
ṭunbūr a lute-like instrument, a musical
instrument with a pear-shaped wooden
body and a fretted neck, a mandolin.

U
uḍḥiyah sacrifice, immolation.
ujrah wages, remuneration, fee; rate; price.
ukht sister.

780
ukht li-ab consanguine sister, agnate sister, sister
from the same father but a different
mother.
ukht li-ab wa’l-umm full sister, a sister from both parents, a
sister- german.
ukht li-umm uterine sister, sister from the same
mother but a different father.
umm mother.
umm al-ab paternal grandmother.
umm al-umm maternal grandmother.
umm al-walad (pl. ummahāt al-awlād) the slave-
woman who is mother of her master’s
child.
‘umrā donation of the use of something for
life.
‘umrah visit to the Ka‘bah to execute specific
rites that may be performed at any
time.
‘uqr indemnity paid by the master to his
slave-woman when he performs
unlawful sexual intercourse with her.
‘urūḍ see ‘arḍ.
‘ushr a tenth, taxation paid by Muslims as

781
 zakāh on the produce of their land
property, tithe.
‘ushriyyah accountable by way of ‘ushr, that which
is or may be reckoned as tithe, tithable.

W
wadī post-urinal fluid.
wadj jugular vein.
wadī‘ah deposit; a trust, bailment.
wāhib donor, benefactor, one who gives a gift.
wājib incumbent; that act or omission which
is proven by non-definitive evidence (if
it was definitive, it would be obligatory
or farḍ).
wakālah agency, representation.
wakīl agent, attorney, representative whether
legal or otherwise.
walā’ clientage (or contract of ) between a
freed slave and his former master, amity
(or treaty of ), succession.
walī guardian; in cases of homicide, he is the

782
 heir entitled to exact retaliation from
the offender; governor, ruler,
administrative official.
walīmah wedding banquet.
waqf endowment; charitable trust.
wāqif the person who endows a waqf.
wasaq (pl. awsāq) a cubic measure equal to
sixty ṣā‘s.
waṣī guardian, trustee; executor; legatee.
waṣiyyah bequest.
wazan weight.
wifq highest common factor (e.g. in 8 and
20, the hcf or wifq, is 4).
wilāyah guardianship, jurisdiction, curatorship,
legal power, rule, political authority.
wuḍū’ minor ritual purification, ablution.

Y
yamīn oath.
yamīn ghamūs false oath.
yamīn laghw unintentional oath.

783
yamīn mun‘aqidah enacted oath.
Yawm an-Naḥr the day of sacrifice.

Z
zād supplies; luggage; remuneration.
zakāh mandatory poor-due.
zaman someone who is chronically ill.
zamān a period of time.
zānī (fem. zāniyah) someone who has
committed unlawful sexual intercourse.
zawāl noon.
zawj husband; used for male and female
spouse, partner.
zawjah wife; female spouse.
ẓihār the husband’s unlawful comparison of
his wife, equating her with the back of
his own mother and, thereby,
prohibiting intercourse with her.
zinā unlawful sexual intercourse.
ziqq (pl. azqāq) a unit of measure equal to
fifty maunds (see mann).
zujāj glass.

784
 BIBLIOGRAPHY

e Noble Qur’ān
Professor Shaykh Muḥammad Imdād Ḥussain Pīrzāda. Tafsīr
Imdād al-Karam (Urdu), Retford, UK: Al-Karam Publications,
2004 C.E.

Ḥadīth Compilations

Imam Abū ‘Abdullāh Muḥammad ibn ‘Abdullāh al-

Khaṭīb at-Tabrayzī (d. 741 A.H.), Mishkāt al-
Maṣābīḥ. Beirut: Dār al-Kutub al-‘Ilmiyyah, 2003
C.E/1424 A.H.

Imam Aḥmad ibn Ḥanbal Abū ‘Abdullāh ash-

Shaybānī (164 A.H. – 241 A.H.), Musnad Aḥmad.
Istanbul: Dār ad-Da‘wah, 1982 C.E.

Imam Abū Abdullāh Muḥammad ibn Ismā‘īl al-

Bukhārī (d. 256 A.H.), Ṣaḥiḥ al-Bukhārī. Cairo:
esaurus Islamicus Foundation, 2000 C.E.

Imam Muslim ibn al-Ḥajjāj an-Naysābūrī (d. 261

A.H.), Ṣaḥīḥ Muslim. Cairo: esaurus Islamicus
Foundation, 2000 C.E.

A A
785
Imam Sulaymān ibn Ash‘ath Abū Dāwūd as-
Sajistānī (d. 275 A.H.), Sunan Abū Dāwūd. Cairo:
esaurus Islamicus Foundation, 2000 C.E.

Imam Abū Muḥammad ‘Abdullāh ibn

‘Abdurraḥmān ibn Faḍl ibn Bahrām ad-dārimī (d.
255 A.H.), Sunan ad-Dārimī. Istanbul: ÇAĞRI
YAYINLARI, 1981 C.E./1401 A.H.

Imam ‘Alī ibn ‘Umar ad-Dāraquṭnī (306 A.H. – 385

A.H.), Sunan ad-Dāraquṭnī. Beirut: ‘Ālim al-Kitāb,
1993 C.E./1413 A.H.

Imam Abū ‘Abdurraḥmān Aḥmad ibn Shu‘ayb al-

Khurāsānī an-Nasā’ī (d. 303 A.H.), Sunan an-
Nasā’ī. Cairo: esaurus Islamicus Foundation, 2000
C.E.

Imam Abū ‘Ī sā Muḥammad ibn Sawrah at-

Tirmidhī (d. 279 A.H.), Sunan at-Tirmidhī. Cairo:
esaurus Islamicus Foundation, 2000 C.E.

Imam Muḥammad ibn Yazīd Abū ‘Abdullāh ibn

Mājah al-Qazwīnī (d. 273 A.H.), Sunan Ibn Mājah.
Cairo: esaurus Islamicus Foundation, 2000 C.E.

Fiqh books

A
786
Mawlāna Ḥāfiẓ ‘Abdurrazzāq al-Chishtī al-
Bhatrālawī, al-Mukhtaṣar al-Qudūrī ma ḥāshiyat al-
musammāt bi al-Mazhar an-Nūrī. Rawalpindi: Ḍiyā
al-‘Ulūm Publications.

Shaykh Kāmil Muḥammad Muḥammad ‘Uwayḍah,

Mukhtaṣar al-Qudūrī fī al-Fiqh al-Ḥanafī, Beirut:
Dār al-Kutub al-‘Ilmiyyah, 1997 C.E./1418 A.H.

Mawlānā Muḥammad I‘zāz ‘Alī, Al-Mukhtaṣar li’l-

Qudūrī ma ḥalli-hī al-musammā at-Tawḍīḥ aḍ-
Ḍarūrī, Karachi, Qadīmī Kutub Khānah.

Mawlānā Ghulām Muṣṭafā Sindhī, Mukhtaṣar al-

Qudūrī, Karachi: Qadīmī Kutub Khānah.

Burḥānuddīn al-Farghānī al-Marghīnānī (d. 596

A.H.), Al-Hidāyah, English rendering by ‘Imrān
Aḥsan Khān Nyāzee, Bristol: Amal Press, 2006 C.E.

Aḥmad ibn Naqīb al-Miṣrī (d. 769 C.E./1368

A.H.), ‘Umdat as-Sālik, English rendering entitled
Reliance of the Traveller by Nuh Ha Mim Keller,
Maryland, USA: Amanah Publications, 1994 C.E.

Dr. Ḥussain Ḥāmid Ḥassaan, Usūl al-Fiqh (Arabic),

Cairo: Dār an-Nahdat al-‘Arabiyyah, 1970 C.E.

A A
787
Abū Bakr ibn ‘Alī ibn Muḥammad al-Ḥaddād az-
Zubaydī, al-Jawharat an-Nayrah. Digital text.
Maktabah Mishkat al-Islamiyyah.

Lexicons

J. Milton Cowan, Ed. A Dictionary of Modern

Written Arabic.

Al-Mu‘jam al-Wasīṭ, Al-Maktabat al-Islāmiyyah

li’ṭ-Ṭibā‘ah wa’n-Nashr wa’t-Tawzī‘, Istanbul,
Turkey.

Abu’l-Faḍl Mawlānā ‘Abdu’l-Ḥafīẓ Balyāwī. Miṣbāḥ

al-Lughāt, Lahore: Maqbool Academy, 1950 C.E.

Others

Professor Dr. Muḥammad Ṭāhir-ul-Qādrī, Islamic

Penal System and Philosophy, Lahore: Minhāj-ul-
Qur’ān Publications, 1995 C.E.

Ṭāhir Maḥmood Kiānī, Taqlīd: Following a

Mujtahid. Retford, UK: Al-Karam Muslim
Quarterly, Oct. 2005: 21.

788
1 Ibn Juzayy al-Kalbī, Taqrīb al-Wuṣūl ilā ‘Ilm al-Uṣūl. Ed.
2 Mishkāt al-Maṣābīḥ, Book of Leadership; at-Tirmidhī, Vol.1;
ad-Dārimī.
3 Sunan an-Nasā’ī, Vol.2, Book of Adjudication, Chapter of Ruling
in Accordance with the People of Knowledge.
4 ere are a number of sayings of the Beloved Messenger of Allah
that identify this point, e.g. ‘My ummah (nation) will not unite
on an error’; ‘My ummah will not unite on a wrong’; ‘I asked Allah
for my ummah not to unite on wrong and He gave that to me’; ‘e
mercy of Allah is with the jamā‘ah [the united body of
Muslims]’; ‘Whatsoever the Muslims see as good, then it is good
with Allah ’, etc. ese narrations are āḥād (single chain of
narration), but due to their collective reference to the validity of
ijmā‘ , which is proven by at-tawātur al-ma‘nawī (the same meanings
transmitted by many chains of narration, though the words may
differ), they demonstrate a sound belief and solid evidence in favour
of ijmā‘. [Dr. Hussain Hamid Hassaan, Uṣūl al-Fiqh (Arabic), Dār
an-Nahdat al-‘Arabiyyah, Cairo: 1970, p.297]
5 e Noble Qur’ān, Sūrat an-Nisā’ (4), Verse 59.
6 Al-Qurṭubī, al-Jāmi‘ li Aḥkām al-Qur’ān, in commentary on
Sūrat an-Nisā’ 4:59.
7 is work is also known as al-Mukhtaṣar li’l-Qudūrī and al-
Mukhtaṣar al-Qudūrī.
8 According to Ḥijrī calculation.
9 qidr means a pot, or cauldron, the plural of which is qudūr.
Hence, al-Qudūrī refers to someone who either furnishes pots or
sells them. [‘Abdulkarīm ibn Muḥammad as-Sam‘ānī, Kitāb al-
Ansāb.]
10 Aṣḥāb at-tarjīḥ are those qualified legal experts who analyse and
assess verdicts within a madhhab.

1 e three limbs to be washed in wuḍū’ are: i. the hands and arms

up to and including the elbows, ii. the face, and iii. both the feet.

789
2 ey are Imams Abū Ḥanīfah, Abū Yūsuf and Muḥammad ash-
Shaybānī, may Allah have mercy upon them all.
3 Khuffs are leather socks covering the ankles.
4 ese are the passages whence are excreted urine and faeces, i.e.
the anus, excreting faeces and the urethra, excreting urine.
5 A mouthful of vomit is the minimum for the nullification of
wuḍū’.
6 is includes rainwater, melted snow and melted hail.
7 is includes streamwater, riverwater and water of lakes and large
ponds.
8 amar refers to the fruit of trees such as olives, whereas fākihah
refers to fruit such as strawberries, melons, etc., i.e. those which are
sweet.
9 His hand.
10 Spoiling the water, here, refers to spoiling the purifying nature
of the water.
11 irty small buckets, twenty large buckets or twenty-five
medium sized buckets.
12 Imam Abū Yūsuf and Imam Muḥammad, may Allah have mercy
on them.
13 ese are the animals the meat of which is ḥalāl for human
consumption.
14 He may perform either wuḍū’ or tayammum first.
15 Tayammum is an alternative to wuḍū’ and ghusl, subject to
stipulated conditions.
16 Imam Abū Ḥanīfah and Imam Muḥammad, may Allah have
mercy on them.
17 is depends on what original purity the tayammum was
performed for; if for wuḍū’, then all factors that nullify wuḍū’ would
nullify that tayammum, but if the tayammum is performed as an
alternative to ghusl, then breaking wind, passing water or answering
a call of nature would not nullify that particular tayammum, but it
would nullify the tayammum of wuḍū’.

790
18 If there is sufficient water for wuḍū’ to be performed with, then
the tayammum of wuḍū’ becomes invalid, and if the water is
sufficient enough for ghusl to be performed by it, then that
invalidates the tayammum for ghusl.
19 at is for twenty-four hours.
20 is is the breadth of the wiping.
21 e legal three days and nights continue from when one first
made the intention while resident, for example, if one made the
intention of wiping over his khuffs, as a resident, at 1pm on
Monday, and took up travel before 1pm of the next day, Tuesday he
may continue to wipe over the khuffs till 1pm on ursday, when
his three days and nights from the formulation of his original
intention legally lapse.
22 Imam Abū Yūsuf and Imam Muḥammad. Practically, his period
of wiping shall commence when he first invalidates the wuḍū’.
23 Includes plasters, bandages and casts.
24 A day and a night is equivalent to the common twenty-four
hour day.
25 Any period of purity falling in between the same menstrual
bleeding is disregarded.
26 Generally, ten days of menstrual bleeding would be the
maximum for any woman, but occasionally, some women experience
a period exceeding this maximum on a regular basis. Such regular
menstrual bleeding is not istiḥāḍah, and it is legally relied upon. e
maximum period for such a woman is according to the maximum of
what she experiences regularly.
27 is is when she has given birth for the first time and hence,
experiences postnatal bleeding for the first time, or she has given
birth before but experiences irregular periods of postnatal bleeding.
28 e appearance of the sun on the horizon terminates the time of
the fajr prayer.
29 e end of the time of the witr prayer is the same as the end of
the time of the ‘ishā’ prayer, but the witr prayer cannot be performed
prior to the ‘ishā’ prayer.
30 To delay it as close to sunrise as possible.

791
31 To delay it past midday.
32 To delay it as close to maghrib as possible, without risking the
sun changing its colour or its brightness.
33 at is the taḥajjud prayer.
34 Besides those prayers there are the witr, tarāwīḥ, eclipse, funeral
prayers, prayer for seeking rain, prayer of fear, etc.
35 i.e. the mu’adhdhin, the person who calls the adhān.
36 Call for the commencement of prayer congregation.
37 Direction of the Ka‘bah in Makkah.
38 e initial saying of “Allāhu Akbar” whilst raising both hands to
the ears, indicating the formal entry into the prayer.
39 He does not have to start the prayer again.
40 Up to and including saying the shahādah, while seated.
41 is includes incumbent acts and emphasised sunnahs.
42 e words “Allāhu akbar – Allah is greater.”
43 By pronouncing the ta‘awwudh.
44 Pronouncing any utterance or pronouncement in the prayer
silently means that it must not be audible to anyone but to oneself.
45 e first sūrah of the Qur’ān.
46 Leader of the prayer in congregation.
47 Silently.
48 Imam Abū Yūsuf and Imam Muḥammad.
49 is is the metatarsal area of the foot.
50 e taḥrīmah.
51 One is not required to add a chapter or three verses to the
Fātiḥah anywhere other than the first two units.
52 One is not to adopt a particular sūrah for any prayer on a regular
basis.
53 e length of the long verse must approximate three short
verses.
54 is refers to congregational prayer in which the imam is
reciting the Fātiḥah and the added sūrah, irrespective of whether
that is audible or not.

792
55 An emphasised practice of the Prophet Muḥammad
56 Who is ignorant of prayer-related issues.
57 Unlike men, where the imam stands in front of the rows.
58 If the worshippers are naked, then their imam is to stand in
between them and not in front of the rows.
59 Indicating as his method of prayer due to a physical disability
because of illness or otherwise.
60 i.e. he follows the imamate of the person praying an obligatory
prayer although having done that prayer, praying it as an optional
prayer.
61 is also includes knuckles, wrists, elbows, knees and all other
joints.
62 i.e. stand with arms akimbo.
63 Sitting on the buttocks with the knees up and the thighs
touching the chest whilst both hands are on the ground, or sitting
on the heels of the feet whilst both hands are on the ground.
64 As long as he has not spoken.
65 Includes bandages, plasters and casts, etc.
66 Or they were someone with a valid excuse and their excuse
expired.
67 Someone who observes the sequential order of prayers (ṣāḥib at-
tartīb) is someone who has missed a maximum of five prayers; he is
obliged to discharge the missed prayer prior to the due prayer.
68 e one who observes the sequential order of prayers (ṣāḥib at-
tartīb) must discharge the missed prayers in the sequence he missed
them.
69 Someone who has missed six prayers or more is not required to
follow the sequential order; he is not ṣāḥib at-tartīb.
70 Once the adhān for the maghrib prayer has been called, the
performance of supererogatory prayers delays the performance of
the obligatory prayers, hence the prohibition.
71 ese two units are performed prior to the obligatory fajr prayer.
72 Repetition of the invalidated supererogatory prayer is incumbent
(wājib).

793
73 Imam Abū Yūsuf and Imam Muḥammad.
74 He should omit the sitting posture.
75 Meaning six or more prayers.
76 e obligation of those prayers is waived.
77 Al-A‘rāf 7:206.
78 Ar-Ra‘d 13:15.
79 An-Naḥl 16:50.
80 Al-Isrā’ 17:109.
81 Maryam 19:50.
82 Al-Ḥajj 22:18.
83 Al-Furqān 25:60.
84 An-Naml 27:25.
85 As-Sajdah 32:15.
86 Ṣād 38:24.
87 Fuṣṣilat 41:38.
88 An-Najm 53:62.
89 Al-Inshiqāq 84:21.
90 Al-‘Alaq 96:19.
91 Meaning by sea, ocean, lake, river etc.
92 e obligatory prayers of the fajr and maghrib prayers do not fall
within the category of prayers that can be shortened, due to there
being insufficient units in them to do that, i.e. two and three
respectively.
93 Of obligatory prayers.
94 All obligatory prayers of four units are thus prayed as two units
only, and adding to those two units is impermissible for the
following reasons: it would amount to denial of the shortening of
prayer, or fusing the obligatory prayer with the supererogatory
prayer (because the additional units are deemed to be
supererogatory), omission of the final sitting position in the
obligatory prayer, delay in salutation and omission of the taḥrīmah
of the supererogatory prayer.
95 is is due to the element of uncertainty in the duration of its
stay.

794
96 He is required to follow the imam in that prayer, irrespective of
which prayer it is.
97 He is legally classified as a traveller until the elapse of fifteen
days of residence.
98 is is due to the fact that he is in two places rather than one.
For the ruling of residence to apply, one must take up residence in
only one place for fifteen or more days.
99 Two prayers are combined as an act when one prayer is delayed
towards the end of its time and the next prayer is brought forward to
the beginning of its time, such as the performance of ẓuhr prayer
near to the end of its time and ‘aṣr prayer at the beginning of its
time.
Prayers may not be combined in one time, such as performing
the ẓuhr and ‘aṣr prayers at the time of ẓuhr, other than those under
special circumstances at ‘Arafah and Muzdalifah (see Chapter of
Ḥajj – Pilgrimage).
100 Imam Abū Yūsuf and Imam Muḥammad.
101 e original number of units.
102 A miṣr jāmi‘, or comprehensive city, is that which has an amīr
(a ruler or governor), a qāḍī (judge) and a muftī (someone who
informs people of the decisions of the sharī‘ah), who enforce and
implement the laws of the sharī‘ah.
103 e Sulṭān is the supreme authority in the land. is term also
denotes the Khalīfah.
104 When the time of the ẓuhr prayer has passed.
105 Imam Abū Yūsuf and Imam Muḥammad.
106 Some editions of the Mukhtaṣar al-Qudūrī say that in the first
verdict, Imam Abū Ḥanīfah, may Allah have mercy on him, is alone
and Imam Muḥammad and Imam Abū Yūsuf agree on the second
verdict. Nevertheless, it is the former that is legally followed.
107 It is valid for them and they are not required to perform the
ẓuhr prayer.
108 Leading the Jumu‘ah prayer.
109 He does not pray four rak‘ahs of ẓuhr.

795
110 He prays the four rak‘ahs of the ẓuhr prayer instead of the two
units of the Jumu‘ah prayer.
111 Imam Abū Yūsuf and Imam Muḥammad.
112 Ordinarily the muṣallā is a large open space outside the town
or city where the Muslims from different mosques assemble. Ed.
113 e takbīr in this case is to say: “Allāhu akbar, Allāhu akbar, lā
ilāha illa’llāhu wa’llāhu akbar, Allāhu akbar, wa li’llāhi’l-ḥamd –
Allah is greater, Allah is greater, there is no god but Allah, and
Allah is greater, Allah is greater, and to Allah is all praise.”
114 Imam Abū Yūsuf and Imam Muḥammad.
115 Zawāl: though linguistically it means descent or declination, in
Islamic legal terminology it refers to the sun being at its highest
point at noon and at its zenith in the meridian just prior to
beginning to decline.
116 e eleventh, twelfth and thirteenth days of Dhu’l-Ḥijjah are
known as the days of Tashrīq.
117 is is the contract entered into by non-Muslim citizens of the
Muslim polity for the protection of their persons and properties in
exchange for a poll tax (jizyah) and taxes (kharāj) on their land and
trade, instead of the Muslims’ religious obligation of zakāh. e
non-Muslim who enters into such a contract is known as a dhimmī.
118 e recommendation is for the congregation of the tarāwīḥ and
not for the prayer of the tarāwīḥ itself, due to the latter being
sunnah mu’akkadah (emphasised Prophetic practice).
119 Tarwīḥah, its real plural in the Arabic language is tarāwīḥ,
meaning ‘to seek or achieve rest’. It refers to the rest that the
worshippers take between every four units of prayer during the night
prayer in the month of Ramadan.
120 e tarāwīḥ prayers are performed in two units with one
salutation. After that, there are two more units with one salutation,
and this totals four units. e worshippers then rest by sitting for a
while between the ending of the first four units until the beginning
of the next four units. Likewise, this goes on until all five tarwīḥahs
have been accomplished and all twenty units have been performed.

796
121 e tarāwīḥ prayers are to be performed after the ‘ishā’ prayers
and before the witr prayers.
122 When the time for prayer is due.
123 In the event of a battle, siege or other form of immediate
danger, which hinders them from performing the prayer without
fear of attack.
124 e other group follow the imam in the prayer.
125 ey had begun their prayer with the imam (lāḥiq).
126 Also to be performed individually.
127 ey had joined the prayer later (masbūq).
128 To witness that there is no god but Allah, and to witness that

Muḥammad is His slave and messenger.

129 Althaea includes the hollyhock and the marshmallow.
130 e flat part of the dais where the body is placed.
131 ese are seven; the two feet, the two knees, the two hands, the
nose and the forehead (considered as one part).
132 e izār is a cloth, like the Malay sarong, that wraps around
the lower half of the body.
133 e two cloths would be the izār and shirt.
134 e use of a brassiere is also permitted.
135 e three cloths are the wrapper for the lower half of the body,
the shirt and the wrapper.
136 is refers to the permission granted by the walī to conduct the
funeral prayer, hence, the prayer cannot be repeated if the walī has
permitted it to be established and it has been performed.
137 For the funeral prayer, the presence of the body is important.
e body begins to decay from the moment of death and by the end
of the third day, under normal circumstances, the substance of the
body is no more, therefore, there is no funeral prayer after that
period. Nevertheless, there is no fixed period in this regard due to
the fact that the speed of decay to the body varies from place to
place and from climate to climate.
138 It is not possible for all of the worshippers to be standing
facing the chest of the deceased; therefore, the term ‘worshipper’

797
refers to the imam, or to the one performing the funeral prayer
alone.
139 e people do not remain standing until the bier has been
lowered by those who are carrying it, directly in front of the body.
140 e grave is the hole that is dug in the ground and the niche is
what is dug out of the walls of that grave.
141 e grave is not to be cube-shaped or rectangular.
142 is is what has been reported by at-Tirmidhi, an-Nasā’ī, Ibn
Mājah and others. Crying is a sign of life, hence, the funeral rites
and prayer for one that cries at birth. If there is no sound made at
birth by the baby, it is presumed dead and stillborn unless other
signs of life are evident, like movement, etc.
143 Although martyr came to mean someone who passively
endured suffering for the sake of their beliefs until the point of
death, the original meaning is exactly the same as the root meaning
of shahīd: a witness, i.e. for the truth.
144 is includes all non-Muslims.
145 is is the area around the Ka‘bah and not inside it.
146 Ownership here refers to possession.
147 e slave who has contracted with his owner to purchase his
freedom.
148 By the word ‘ṣadaqah’, Imam al-Qudūrī, may Allah have mercy
on him, is referring to zakāh, which is an obligation, and he does
not mean that ṣadaqah which is optional.
149 e word used is ‘dhawd’ which refers to any number between
three and nine.
150 e shāh is a sheep or goat and may refer to a ewe or a ram,
and is required to be at least one year old.
151 A one-year old she-camel.
152 A two-year old she-camel.
153 A three-year old she-camel.
154 A four-year old she-camel.
155 See the appendix for a table on zakāh.

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156 is includes the cow, buffalo and other similar large
domesticated quadrupeds that are reared for dairy or meat products.
157 Two and a half percent, or one fortieth.
158 Five percent, or one twentieth.
159 Seven and a half percent.
160 See the appendix for a table on zakāh.
161 is includes sheep, goats and other similar small domesticated
quadrupeds that are reared for dairy or mainly meat products.
162 See the appendix for a table on zakāh.
163 i.e. two and a half percent. Note the niṣāb is two hundred
dirhams in this context.
164 e horses must be a mixture of mares and stallions; stallions
alone or mares alone do not suffice for the obligation of zakāh,
according to Abū Ḥanīfah, may Allah have mercy on him.
165 e excess is determined according to the value of the animal
that is taken. is is the same with the subsequent case.
166 One may pay the value of what is required to be paid in zakāh,
such as in cash or foodstuffs, etc.
167 is is the zakāh collector who is charged with the collection of
zakāh, etc.
168 For zakāh to become payable on sheep and goats, cattle, camels
or horses, etc., it is a condition that the animals be grazing
(sā’imah). If for most of the year, six months or more, the animal is
stall-fed by being confined to a feedlot, it does not conform to the
definition of a sā’imah, and there is no zakāh payable on it.
169 is works out to be around 612.36g; each dirham being
3.0618g in weight.
170 is makes the rate two and a half percent of the amount. e
niṣāb in silver is, therefore, two hundred dirhams worth of silver.
171 ey calculate two and a half percent of two hundred dirhams
worth of silver or anything totalling over that amount.
172 One mithqāl is equivalent to 4.374 grammes. e niṣāb in gold
is twenty mithqāls, which in weight works out to be 87.48 grammes.

799
173 In the minimum amount of niṣāb of gold, which is 87.48g, the
zakāh payable is 2.187g, and that is two and a half percent of the
niṣāb.
174 One carat is equal to approximately 219 mg – five percent of
the value of one mithqāl.
175 is works out to be two and a half percent of the total
amount.
176 is means intervals of four mithqāls over twenty, as in twenty,
being the niṣāb, with a payment of half of one mithqāl for zakāh;
then twenty-four being the next interval where two carats are added
to the half-mithqāl as zakāh with twenty-one, twenty-two and
twenty-three mithqāls being rated according to the interval
immediately below them, in this case being twenty, thereafter
twenty-eight being the next interval and four carats being added to
the half-mithqāl, thereafter thirty-two being the next interval, then
thirty-six, then forty, and so on.
177 Imam Abū Yūsuf and Imam Muḥammad.
178 As in silver, Imam Abū Yūsuf and Imam Muḥammad, may
Allah have mercy on them, calculate two and a half percent from
the total amount of gold that is niṣāb-level.
179 e year in Islam is calculated according to the lunar cycle and
not the solar cycle. e lunar calendar is on average ten days shorter
than the solar calendar.
180 is rule is specific for commercial goods where, if the niṣāb is
reached at the beginning of the lunar zakāh year, for example, the
twentieth of Ramadan in one year, and it is also reached on the
twentieth of Ramadan the following year, then, unlike personal
goods, any decline in the value or amount of the goods below the
niṣāb in between the two dates does not affect the obligation of the
payment of zakāh which is still due. is, however, is not the case
when cash, gold, silver and other forms of wealth subject to zakāh
decline below the niṣāb level during the year; the year is begun again
from the day the niṣāb is re-achieved.
181 Imams Abū Yūsuf and Muḥammad.

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182 According to Abū Ḥanīfah, may Allah have mercy on him, one
adds the value of the silver and the gold in order to achieve the
niṣāb, if they individually do not constitute niṣāb. According to Abū
Yūsuf and Muḥammad, may Allah have mercy on them, it is not the
value that is to be taken into account, but the portions of either
element.
183 In this case, and in other issues within this chapter, there is no
concept of niṣāb, hence, there is no minimum amount of produce to
validate ‘ushr; it is payable irrespective of amount.
184 is includes streams, rivers, canals, springs, wells, etc.
185 is includes rain, snow, sleet, hail, etc.
186 ese three products are generally not cultivated, and hence,
they are exceptions to the ruling of zakāh.
187 e plurals of wasq are awsuq and awsāq, as in the last issue. It
is a cubic measure that is calculated according to the load of a camel,
and is fixed at sixty ṣā‘s.
188 e ṣā‘ is a cubic measure which is equivalent to the weight of
1028.57 dirhams, or 3261.5 grammes, or eight riṭls.
189 Five percent of the produce.
190 at is, the verdict of Abū Ḥanīfah, may Allah have mercy on
him, and the verdict of Abū Yūsuf and Muḥammad, may Allah have
mercy on them.
191 Meaning camel-loads, each load equivalent to three hundred
maunds.
192 One maund is equivalent to 815.39 grammes.
193 ere is no minimum to be achieved before ‘ushr is charged.
194 e plural of ziqq is azqāq, and each ziqq is equivalent to fifty
maunds.
195 is is a specific tax imposed on land that is owned by non-
Muslims living under Muslim governance (dhimmīs).
196 e Imam is the ruler or leader. Ed.
197 e mukātab is the slave who has contracted with his owner to
purchase his freedom. Ed.
198 Imams Abū Yūsuf and Muḥammad.

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199 Meaning all Ḥanafī scholars.
200 e word land refers to a domain ruled by a specific governing
body, such as a ruler, sulṭān or governor. In the contemporary sense,
we may understand it as an independent country.
201 In the land where the payer of zakāh is.
202 e ownership of niṣāb is a condition for that day only and
there is no precondition of the passing of a year over it.
203 e ‘second dawn’ is al-fajr aṣ-ṣādiq ‘true fajr’ and that is the
whiteness that spreads across the horizon.
204 Fasting because of having divorced a wife by the expressions
that denote ẓihār divorce then wishing to take her back (See the
section in the Chapter of Ṭalāq – divorce).
205 Effectively, this constitutes the thirtieth night of Sha‘bān, as
the date starts at sunset.
206 Agreed upon by al-Bukhārī and Muslim.
207 “Imam” in the works of fiqh usually means the leader of the
Muslims rather than the imam of the prayer, unless stated
specifically. We only capitalise the former. Ed.
208 e new crescent of Ramadan.
209 e collective collaborating reports of a multitude of people
generally form sound knowledge and are treated as factual evidence.
Such reports are to be accepted by the Imam, i.e. the leader of the
Muslims and, thereupon, his decision is based.
210 Nocturnal emission due to a wet dream or otherwise.
211 Being a mouthful or more.
212 e stones of fruits such as cherries, peaches or plums.
213 is is injurious comparison by the husband of his wife to his
mother, which makes her unlawful to him (See Chapter of ẓihār –
Injurious comparison).
214 Vaginal intercourse.
215 Administration of a medicine via the anus.
216 Hypodermic, intramuscular, and intravenous injections do not
invalidate the fast.

802
217 is is due to there being no valid excuse for them to abstain
from fasting during their days of good health, if one was ill prior to
that, and during their days of residence, if one was travelling prior to
that.
218 is is because the commands of the sharī‘ah only apply to
those who possess the required legal capacity (ahliyyat al-wujūb)
which was absent in both these cases prior to attaining majority and
becoming Muslim. e minor and the non-Muslim do not possess
legal capacity unless they attain majority or accept Islam,
respectively.
219 is is with regards to the menses beginning whilst she is
fasting. If, however, she is menstruating before she has begun her
fast, she does not fast whilst in that condition.
220 During the last ten days of Ramadan i‘tikāf is a communal
(kifāyah) sunnah mu’akkadah. For days outside of this period it is a
recommended (mustaḥabb) act.
221 Women may perform i‘tikāf in the home in their normal
location of prayer. If there is no specific location where she offers
her prayer, she may specify a spot where she will perform the i‘tikāf.
222 Imams Abū Yūsuf and Muḥammad.
223 A maḥram is a relative with whom marriage is prohibited.
224 Mawāqīt is plural for mīqāt, meaning ‘an appointed time or
place’. For the ḥajj or ‘umrah, it refers to specific places or limits
outside Makkah which the person intending to perform ḥajj or
‘umrah is not to cross without entering into iḥrām.
225 Pilgrims coming from areas further than those mentioned here
use that mīqāt which falls in their path, like those coming from
Jordan, Egypt, etc. use the mīqāt that those of Syria use, which in
this case is al-Juḥfah.
226 Al-Ḥill is the opposite of al-Ḥaram and is what is outside of
the Ḥaram.
227 At this point, he becomes bound by all stipulations and
obligations of iḥrām.
228 Wearing perfume is prohibited after one has entered the state
of iḥrām (at-Tirmidhī, Ibn Mājah).

803
229 is includes the shaving of the beard and of pubic hair.
230 e garment needs be washed in such a manner that further
colour or fragrance do not emit from it.
231 Althæa officinalis or marshmallow.
232 Also, whenever he awakes, before he sleeps, after performing
wuḍū’, etc. In short, one should endeavour to pronounce the
talbiyah as often as possible.
233 It is also known as aṭ-ṭawāf al-masnūn – the circumambulation
prescribed by sunnah.
234 e word used – adhā – means annoyance, nuisance and harm.
Ed.
235 Beginning with his right side that is adjacent to the door of the
Ka‘bah. is wall is to the right side of the Black Stone, which is
from where he initiates the circumambulation.
236 Not inside it, because the ḥaṭīm is a part of the Ka‘bah itself.
237 Ramal is a trotting pace midway between a walk and a run,
with a strong intimidating gait.
238 If kissing the Black Stone is not possible for him, then he may
touch it with an object and kiss that. If that is not possible for him,
then he may indicate towards it from a distance, with his right
hand, and say, “Allāhu Akbar, lā ilāha illa’llāh – Allāhumma ṣalli ‘alā
Muḥammad wa ‘alā āli Muḥammad – Allah is greater, there is no
god but Allah – O Allah, send blessings upon Muḥammad and
upon the family of Muḥammad.”
239 e circumambulation of arrival.
240 Sa‘y means to walk quickly and vigorously; although it can
ordinarily mean to run, it does not mean that here. Ed.
241 Going from ṣafā to Marwah is one circuit, and back to ṣafā is
another circuit. e odd numbered circuits are from ṣafā to
Marwah, and the even numbered circuits are from Marwah to ṣafā,
and the final (seventh) circuit ends at Marwah.
242 is is the seventh of Dhu’l-Ḥijjah.
243 e day of tarwiyah is the eighth day of Dhu’l-Ḥijjah.

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244 During the ḥajj, there are three addresses in total; i. On the
seventh of Dhu’l-Ḥijjah, ii. On the ninth of Dhu’l-Ḥijjah, and iii.
On the eleventh of Dhu’l-Ḥijjah.
245 Also known as ṭawāf az-ziyārah – the circumambulation of
visiting.
246 is is when the sun declines from its zenith at midday and
when the ẓuhr prayer time begins.
247 is is the al-Mawqif al-A‘ẓam (e Greatest Station).
248 Wuḍū’ is also permitted, but ghusl is better.
249 e tenth of Dhu’l-Ḥijjah has entered.
250 It is said that during the time of the Abbāsī caliph, Harūn ar-
Rashīd, this hearth would be lit in the night of the stay at
Muzdalifah.
251 Such a person would be required to repeat the prayer.
252 is option is for someone performing the ḥajj ifrād.
Slaughtering an animal is obligatory for the performer of the ḥajj
qirān and the ḥajj tamattu‘.
253 It is also known as ṭawāf ar-rukn and ṭawāf al-ifāḍah.
254 Tenth, eleventh or twelfth of Dhu’l-Ḥijjah.
255 Abū Yūsuf and Muḥammad.
256 is is the eleventh of Dhu’l-Ḥijjah.
257 Twelfth of Dhu’l-Ḥijjah.
258 irteenth of Dhu’l-Ḥijjah.
259 e fourth day, i.e thirteenth of Dhu’l-Ḥijjah.
260 Abū Yūsuf and Muḥammad.
261 It is better to delay the pelting of stones till after midday.
262 It is also known as ṭawāf al-wadā‘.
263 is term refers to both camels and cows, unless expressly
stated otherwise. Here, the cow has already been mentioned so the
camel is meant in this context.
264 Fasting is the alternative to naḥr, and that is if one is unable to
provide an animal for slaughter.
265 In other words, the option of fasting has been taken away from
him and he can now only offer a sacrificial animal as atonement.

805
266 e person performing qirān is called qārin.
267 He must make up the ‘umrah by qaḍā’ for leaving it.
268 He must complete seven circuits, thus he performs four or
more circuits to make up the total.
269 He must give away something as charity.
270 If he covers his head for less than a whole day.
271 is works out as a half ṣā‘ for each needy person.
272 ese issues apply to both the male and the female.
273 Sexual intercourse in the anus is ḥarām, but the author includes
it here simply in relation to whether it invalidates one’s ḥajj.
274 e ‘umrah is still valid, hence no qaḍā’.
275 at is if he intends to keep the surplus of food.
276 e qirān is a combination of ifrād ḥajj and ‘umrah, so any
violation of it requires atonement double that of ifrād, i.e. two
animals to be sacrificed in place of one.
277 e qārin sends one animal to be sacrificed for each of the
iḥrāms.
278 Abū Yūsuf and Muḥammad.
279 is applies when they release themselves from the iḥrām.
280 ose who have undertaken to slaughter the offering for him.
281 One who is under siege, confinement, restraint or is hindered
by an enemy, or is ill and cannot perform such rites is, in the legal
meaning of the term iḥṣār, a muḥṣar.
282 e standing at ‘Arafah and the circumambulation.
283 e word used is qurbah, which refers to closeness to Allah
, and in this context, it is achieved by sacrificing an animal of a
specific category for His pleasure.
284 If one of the participants in a cow or camel decides to keep the
meat for himself, then ‘the closeness to Allah’ factor will not apply
to the others.
285 Naḥr is to slaughter the animal by stabbing into a vein at the
base of the neck, whereas dhabḥ is done by drawing a sharp knife
across the jugular veins and the windpipe.
286 is includes anyone who slaughters the animal.

806
287 Offer and acceptance are required to take place within the same
session, before either of the contracting parties leaves that session.
is may also include further meetings between the parties after the
offer has been made and prior to the acceptance concluding the sale,
or if he wants, he may refuse it.
288 In such cases where the accepting party has been given a
specific date upon which, or prior to which, it is required to enter
into a formal agreement so that the sale may be concluded, the lapse
of that date, or the express refusal prior to that date, renders the
session terminated. Where no specific date has been mentioned, the
express revocation of the offer by the party making the offer, or the
lapse of reasonable time without acceptance, renders the offer
revoked.
289 Once the sale has been entered into and both parties have
agreed to its terms and conditions, the sale is irrevocable.
290 If a previously undisclosed defect is found in the commodity, or
the sale was made without having viewed the commodity and, upon
seeing it, it does not appear to match the description made by the
seller, then the purchaser has the right to revoke the sale.
291 ese are the price and the object of sale.
292 If the objects of sale are present then it is not a condition of the
permissibility of the sale that the amount or quantity of those items
be known, e.g. A, the seller, says to B, the purchaser, “I have sold
this item X in my hand to you in exchange for the cash Y in your
hand,” and he indicates both considerations – such a sale transaction
is valid.
293 Both parties to the sale must know of the specific price and/or
method of payment with respect to the item. An unspecified price
would invalidate any sale, e.g. A, the seller, says to B, the purchaser,
“I have sold this item X in my hand to you in exchange for whatever
its price may be,” – this sale transaction is invalid.
294 Immediate payment is the general case which is always the
better method of concluding a sale. A deferred payment is, however,
permitted when the period of deferment, or the exact date of
payment, is known.

807
295 If the seller sells an item for ten dinars, it is presumed to be ten
dinars of the land in which they are in. e reason for this passage
in a classic text such as this is because, even when the only
currencies known were gold and silver, different rulers minted coins
of different weight and specifications, the metals having differing
degrees of purity. ose who say that it is enough to equate paper
money and digital currency directly with gold and silver coins then
go on to deduce that this approach may be transposed on to modern
currencies. us they say that if A sells item X to B for ten pounds
in the UK, it is presumed that the ten pounds are British pounds
sterling. Similarly, if A sells item X to B saying, “I have sold this
item X in my hand to you in exchange for ten,” it is assumed that it
is in the currency in use in that land.
296 If more than one form of currency is in use in that land, then
the sale is invalid, unless one of the currencies is explicitly specified.
See the previous note.
297 is may take place when one purchases food according to the
volume of a specific pot, or to the weight of a specific rock, which
the seller commonly uses in order to measure the commodity,
subject to the agreement or knowledge of the purchaser.
298 A dry volumetric measure equal to twelve ṣā‘s or 40.344 litres.
299 One may purchase a pile of food, or seeds, at the rate of one
qafīz for one dirham. is is only permitted, from that pile, if he
purchases only one qafīz. If he desires to purchase more than one
qafīz, then he is to nominate each qafīz with that rate, for example,
he is to say, “Five qafīzs for five dirhams,” or “irteen qafīzs for
thirteen dirhams,” but he is not to say, “irteen qafīzs for one
dirham each.”
300 is is due to not knowing the number of sheep and goats in
the flock.
301 e buyer pays accordingly at the rate established, e.g. ninety
dirhams for ninety qafīzs.
302 e.g. if it is one hundred and ten qafīzs he must pay one
hundred and ten dirhams.

808
303 e buyer has the choice whether to take what is available and
pay for that amount, or to cancel the sale altogether.
304 e seller is not to reserve for himself any specific amount of
unpicked fruit.
305 Although gold and silver coins were ordinarily used, sometimes
they were of nonstandard weights and thus had to be weighed. Ed.
306 In the original situation this pertained to exchange of gold or
silver coins, for which exchange there are very stringent rules in
order to prevent usury. Again, those who equate modern currencies
with that original coinage say that it includes currency exchange, the
sale of bonds, shares and other non-cash alternatives that hold
specific monetary value. Ed.
307 e buyer or seller, or both jointly, may stipulate an option in
the sale by which they may rescind the contract, or sale, upon the
satisfaction of that particular condition. For example, one may
purchase a garment for someone who is not present from another on
the condition that if such a garment does not fit the intended
person, the buyer has the choice to return it in exchange for a full
refund of his payment.
308 Since the sale was not completed, the item, in legal terms, still
belongs to the seller. If it is destroyed or sold on to a third party
whilst in the possession of the potential buyer, then he is responsible
for it and, therefore, must compensate the seller for it.
309 e other party.
310 e option is not a transferable property that can be traded. It
is a personal right that is invested in an individual and it expires
upon the death of its owner, hence it is not a part of the inheritance.
311 One may sell goods that he may never have seen, such as a gift
that one has presented to him via a third person. e seller may
communicate with the third person to submit that gift over to Mr.
A who has bought it from him. e seller, now, has no option to
revoke the sale. Similarly may be the case of buying stocks, shares
and other forms of intangible goods, particularly those that are
made over the telephone and via the internet, where one does, in

809
reality, never see them, unless such goods are presented to him as
hard copies.
312 In many cases, it is impractical to examine the whole of the
goods, and therefore, legally unnecessary.
313 e blind person relies on the senses and functions that he
possesses, therefore he may acquire benefit from them effectively in
transactions that require their use.
314 e owner of the object of sale may only enact the sale if four
ingredients exist: i. the deliberate enactment by the owner, ii. the
object of sale in its unaltered state, iii. the seller, upon his terms, and
iv. the buyer, upon his terms. In a case as such, the seller is an agent
(wakīl).
315 is option was vested as a right within that individual; it dies
with him and is untransferable.
316 If a minor is rid of his blemishes while he is with the seller
until he attains majority age and is then sold to a buyer without such
blemishes, if any of those blemishes return while he is with the new
master, the latter has no option to return him, due to the slave
coming into his ownership unblemished. If, however, any of those
blemishes had returned after his attaining majority age whilst he
was with the first master (the seller), the buyer now has the option
to return him, due to the slave coming into his ownership with
blemishes.
317 If the young male slave suffers from halitosis or an unpleasant
smell coming from his armpits, it is not considered a defect in him,
unless he has an illness due to which such odours occur.
318 As against the last issue, the cloth, barley-mush, or any other
commodity for that matter, are not returnable to the seller, even
though both parties may agree to the return of that commodity,
because the commodity has been altered from its original state by
the buyer adding to it.
319 If A purchases good quality cloth from B and stitches it into a
suit, then the cloth of the suit begins to tear due to a previously
unknown weakness in the cloth, A can recover the loss incurred by

810
him due to the tear from B, but B cannot demand A to submit the
stitched cloth back to him.
320 He is also the second seller.
321 When the seller stipulates absolute immunity from
responsibility for any defect and every blemish within the object of
sale, though he does not indicate, mention or enumerate, any or all
of those blemishes, he is not held responsible for any defects or
blemishes that may arise after the execution of the sale.
322 From a roll or pile which contains various qualities of cloth.
323 ere is no guarantee as to what the net will catch with regards
to fish or other animals or birds in any given throw.
324 is is a competitive form of unlawful transaction whereby the
buyer and the seller dispute the price of goods and decide to bid
each other out. One of them throws a stone onto the goods in order
to settle the sale at the current said price.
325 Mulāmasah is a competitive form of unlawful transaction
whereby a man can feel a garment but is not allowed to unfold it or
examine what is in it, or he buys by night and does not know what is
in it. Likewise, munābadhah is also an unlawful transaction whereby
a man throws his garment to another, and the other throws his
garment without either of them making any inspection. Each of
them says, “is is for this.” ese forms of sale are unfair and,
therefore, disallowed.
326 Unless the seller, or the buyer for that matter, specifies the
cloth of sale. Unspecified sale would not distinguish the intended
item from the other item.
327 e transaction is invalid if neither party knows the beginning,
end, the dates or even the existence of such special days.
328 Such occurs when the bidder does not intend to purchase but
to raise the price.
329 When the price between the seller and the buyer has been fixed
and mutually agreed upon, and a third party intervenes and offers a
higher price, thereby competing with the original potential buyer.
330 is is when the two are brothers, brother and sister, or even
uncle and niece or nephew, etc., both of minor age and

811
consanguineously prohibited to marry one another.
331 It could lead to the contract being a concealed way of taking a
loan at interest. Ed.
332 It is so because the payment must have been made with some
common currency or by other common considerations, like fungible
items, and so the repayment in similar currency or consideration is
always possible. e repayment, as far as iqālah is concerned, does
not require the same coins or the same consideration that was
exchanged in the initial contract or transaction; a similar common
thaman is sufficient.
333 Iqālah may be rendered invalid if the commodity perishes
being one that is not common and is not easily replaceable. Any
attempt to replace the commodity would involve the risk of undue
advantage to either of the parties to the contract, hence, its impact
on the iqālah itself.
334 With due settlement and subsequent agreement between the
parties, iqālah is valid when a portion of the commodity itself has
perished, like the fruit on a tree which was bought inclusive of all
the fruit and such fruit had subsequently perished.
335 A re-sale with profit.
336 A re-sale without profit, at cost price.
337 One that is easily replaceable.
338 One purchases some cloth for ten dirhams. He has it dyed and
embroidered, which costs him an additional two dirhams. He may
add that extra cost of two dirhams to make it twelve dirhams.
339 e purchaser in the last issue must not say that he ‘bought it’
for twelve dirhams whereas he had paid only ten dirhams for it. He
can, however, say that ‘it cost’ him twelve dirhams because that is
the total expenses that he incurred.
340 When the seller says that he bought the goods for fifty
dirhams, whereas he had bought them for forty dirhams, in
murābaḥah the buyer has one of the two choices mentioned.
341 If the last issue occurs in a tawliyah transaction, then the buyer
may reduce the amount of excess from the price that is mentioned

812
and pay only the real price, e.g. forty dirhams instead of fifty
dirhams, reducing it by ten dirhams.
342 Murābaḥah and tawliyah.
343 He may purchase the goods with the full price or he may leave
the purchase altogether.
344 Movable property.
345 is includes all items that are measured by other means, such
as counting, etc.
346 One may make alterations from ten dirhams to eleven dirhams
in the price of an item before the buyer has taken possession of the
item. Similarly, the seller may alter the initial method of payment
prior to taking possession, for example, in the place of currency, one
may ask for payment in labour.
347 e buyer may pay ten dirhams for an item that the seller has
on sale for only nine dirhams.
348 i.e. the price paid and the commodity.
349 If the commodity has been increased then the buyer is entitled
to all the rights to the increment as he is to the original commodity.
Likewise, the seller is bound by the same duties and liabilities with
respect to the increment, as he is with respect to the original
commodity.
With regards to the reduction in price, the same applies.
If iqālah is to be pursued by either party, the increment must also
be returned with the original commodity, and likewise, the price
that was paid, original or reduced, must be repaid to the buyer.
350 e selling of an item to a buyer in consideration of prompt
payment would generally require the payment to be made
immediately. If the seller allows the buyer to pay at a later date that
is fixed and known, then such is permitted and the payment is
deemed legally deferred (mu’ajjal). In the case of deferred (mu’ajjal)
payment, the seller may not demand the payment from the buyer
prior to the due date.
351 When a buyer purchases from a seller an item with promise to
pay it later, it becomes a deferred debt which must be paid to the

813
seller on a specific date. is, however, is not the case with respect to
loans; they may be demanded by their creditors at any time.
352 e prohibited factor in the exchange is the quantitative
disparity, and this is ribā.
353 Both items must be of the same method of defining quantity,
i.e. dry measurement or weight. Both must also be of the same
genus, i.e. gold for gold, wheat or wheat, etc.
354 e validity for such an exchange lies in the similarity of genus
as well as equality of weight or measurement. e genus must also
be the same otherwise the sale is invalid as it amounts to ribā.
Practically, a sale of this sort would seem pointless as one would
merely be swapping the same amount and quality of goods of the
same genus with someone else, with no gain, loss or benefit derived
from it.
355 Any such mutual excess in quality, quantity or value renders the
transaction forbidden.
356 Two commodities that could be subject to ribā cannot be
exchanged in a sale if one is inferior to the other in quality. Both
items must be of the same value, quality and quantity.
357 Ribā al-faḍl involves disparity in the quantity, quality or value
of the goods.
358 Ribā an-nasī’ah is ribā which is subject to the lapse of time,
thereby rendering necessary additional payment on borrowed goods,
such as lent money, etc.
359 e factors that would render the transaction invalid are non-
existent, hence its validity. Only one such factor need be absent; if
either the disparity in weight or measure, or the difference in genus
are absent that renders the transaction permissible.
360 When one commodity is silver and the other is gold, for
instance, both are similar in their method of quantification, and that
is weight, but both differ with respect to genus. ey may mutually
be exchanged; the quantity of one will differ from the other, e.g. two
grammes of gold in exchange for twenty grammes of silver is a valid
transaction.

814
361 If the quantitative disparity (tafāḍul) in a commodity is
prohibited and that commodity is a measured commodity, then it
always remains measured, and if it is a commodity that is weighed,
then it always remains weighed, and if it is quantified by any other
method, then that depends on what the people use as a method of
quantification, such as counting, etc.
362 Both commodities exchange hands in the same session without
delay.
363 e commodities must be specified and declared, mere taking
possession of such commodities is not enough.
364 e meat of cattle is different from the meat of sheep, and the
flesh of chicken is different from the flesh of partridge.
365 Whatever excess the master levies on his slave is not ribā, as
long as the slave is in the ownership of that master.
366 Muslims living in the West are there by contractual agreement
(‘ahd), which it is obligatory to fulfil, and so the West is not dār al-
ḥarb (enemy territory) and it is not ḥalāl to engage in usury. Ed.
367 is refers to the dry measure in volumes, such as wheat,
barley, etc.
368 ose items that are measured in lengths, like cloth in yards,
metres and cubits, land, etc.
369 Salam is permitted in these items when they are sold, or
exchanged, by weight, but not when numbered due to the possibility
of difference in weight with regards to each bundle, pack, skin, etc.
370 e subject matter of the contract of salam needs to be in
existence from the time the contract is entered into until the time
the duration [of the contract] expires and the object paid for
becomes due to be submitted.
371 It cannot be immediate, as this would defeat the purpose of
salam.
372 e duration of the period before the commodity is to be
handed over must be known; the date, day or any other appointed
point in future time must be fixed and mutually agreed upon by the
parties.

815
373 e cubit (dhirā‘) is the measure of the distance from the tips
of the fingers to the elbow. Ed.
374 e specification of such modes of identification are only
permitted when they are not perishable and, after the termination of
the period of salam, they remain the same, which is highly unlikely
given the lengthy periods of holding the muslam fīhi. If these
specific methods of measurement conform to common
measurements, then they are permissible, otherwise, the common
measurements are adhered to.
375 Like wheat, dates or eggs, etc.
376 For example, in the case of eggs, duck eggs or chicken eggs; in
the case of dates, varieties of dates.
377 For example, in eggs: large, medium or small, or in terms of
wheat, white or red, etc.
378 e place of delivery or fulfilment of the contract.
379 e dhimmī is permitted to enter into any contract of salam,
subject to the conditions which apply to all the citizens of the
Muslim polity, and additionally, he may also trade in swine and
alcohol which are forbidden for Muslims.
380 at are used as prices such as gold dinars, silver dirhams, gold
sovereigns, doubloons, guineas, sterling silver dollars, etc. e prime
method of pricing was the usage of gold and silver coinage. Some
consider that the same principles apply to paper money and digital
currencies.
381 e two things to be bartered must be exchanged like for like
even if they differ in terms of quality, e.g. fourteen carats against
twenty-four carats, or they differ in terms of form, e.g. a gold ring
for a gold necklace.
382 When the parties exchange the commodities, possession must
be exchanged before they separate from that session, otherwise the
transaction is void and all procedures must be renewed in the event
of the parties willing to continue.
383 As against all cases of ribā al-faḍl, the difference in the
commodities allows for their exchange with excess.

816
384 is is connected to the previous issue, where both parties
taking possession of their respective consideration is a condition.
385 e agreement is based on whatever is to be exchanged.
Neither of the parties enjoy a right to alter the method of payment
from the agreed method, e.g. both parties agree to exchange a gold
coin for ten silver coins. Now, neither of them may alter what they
have in their hands before it has been exchanged, e.g. the party
paying the gold coin may not purchase some food with it and then
exchange the food for the silver coins, and likewise, the other party
may not purchase cloth with the silver coins and exchange it for the
gold coin; the exchange may only involve the one gold coin against
the ten silver coins.
386 Conjecture is allowed in such cases where the genus of both
commodities differs, and the condition of immediate possession
applies.
387 e ornaments being silver, for example, which has to be sold
like for like, weight for weight. Ed.
388 Because the ornamentation must be bought in a manner that
strictly avoids usury, this part of the contract can invalidate the
whole contract. Ed.
389 If the ornaments cannot be removed without causing damage
to them or to the sword itself, then the sale in either of them is void,
unless they are sold together as one ornamented sword.
390 As in gold for gold and silver for silver, under certain
conditions some transactions are not permitted due to ribā, and that
rule also applies with respect to these coins which are predominantly
gold or silver.
391 He also accepted the view of Abū Ḥanīfah, may Allah have
mercy on them.
392 Fulūs, singular fals, are small copper coins whose value is such
that forty-eight of them equal a dirham. ey were used in small
transactions for everyday household items. Some confusion arises
because fulūs is used as a modern term for money per se. Ed.
393 is is because the coins now have no use and, therefore, no
value.

817
394 It is valid to purchase something with a half dirham’s worth of
copper coins. Imam Muḥammad, may Allah be merciful to him,
only regarded transactions in copper coins that involved less than a
dirham as being valid. Ed.
395 Ḥabbah, literally ‘a grain’.
396 e rest of the transaction involves disparity in weight between
the two, even though that is only a ‘grain’.
397 Rahn – pawning – is a contract in which a person pawns some
property, i.e. pledges it as security against a loan.
398 e pledgor (rāhin) says, “I place property A with you as a
pledge against loan x” as the offer, and the pledgee (murtahin)
replies, “I accept your pledge.” is is a valid offer and acceptance
and is a binding contract.
399 When both parties have taken possession of the respective
consideration, the contract of rahn is complete.
400 “Unattached” – there must be nothing intrinsically attached to
it, such as the fruit of a tree when only the fruit is pledged.
401 e pledgor now has no choice but to carry out his own
responsibility with the loan or debt that is to be satisfied, and the
pledgee is responsible for the protection and well-being of the
collateral.
402 e pledgee must guarantee what is pawned with him.
403 e collateral is guaranteed for less than its value and less than
the amount of the debt.
404 In such a case, the pledgor is free of the debt owed to the
pledgee.
405 In this scenario, the perishing of the higher valued collateral
will have to be made up to the pledgor according to the difference
between them, for example, if the debt is of ten dinars and the
collateral is of twelve dinars and the collateral perishes, the pledgee
is to repay the pledgor two dinars, and until he pays that amount, it
is regarded as a trust with him.
406 is means that someone pledges an item against a debt and
that both are of the same genus, for example, one pledges dates
against a debt of dates, or twenty dinars against a debt of twenty

818
dinars. If such collateral perishes with the pledgee, it is a liability
against him and such perishing reduces the debt against the pledgor
according to the value of the collateral. e differing quality and
nature of the collateral and the debt is immaterial.
407 Al-Jawharat an-Nayrah, which is a commentary on the text,

has
408 Because he has taken what was due to him and spent it, so
there is nothing outstanding for him.
409 Both of the slaves are considered together as one whole pledge
with respect to the debt.
410 is is the person who has been appointed as the agent in the
respective condition, even if he is the pledgee or someone else.
411 Any attempt by the pledgor to remove the agent will be
without effect and such removal deemed legally null and void.
412 If the pledgor does not fulfil his debt to the pledgee, the
pledgee may have him arrested, detained and imprisoned until the
debt is satisfied.
413 e pledgee is told to return the collateral to its real owner, the
pledgor, after the pledgor has repaid his debt to the pledgee.
414 Pawning is a contract and does not transfer ownership from
one person to another, therefore the slave remains the property of
the pledgor and his emancipation of the slave is effective.
415 If the debtor is unable to furnish the debt and his slave is taken
possession of by the creditor as collateral, on the maturity of the
settlement of the debt the slave is to work for the pledgee/creditor
until the debt is paid off. When the slave returns to the
pledgor/debtor after paying off the debt, he may recover the
expenses and wages of his work from him.
416 e pledgee is the aggrieved party in this issue, therefore, he is
the one whom the third party is to compensate by replacing the
perished item.
417 If the pledgor causes damage to the collateral, he must
compensate the pledgee according to the extent of the damage, in
order to make up for the loss.

819
418 If the pledgee uses, or misuses, the collateral, and it is thereby
damaged, whether accidentally or willfully, the damage done to it
reduces the debt accordingly. If the debt is twenty dinars and the
collateral incurs a damage of seven dinars, then seven dinars is
reduced from the amount of debt owed by the debtor/pledgor.
419 If collateral such as a slave, or livestock or horses, commits an
offence against either the pledgor or the pledgee, or against any
property that belongs to either of the two, such as when a pledged
horse kicks the pledgor and breaks his arm, or a pledged garment is
donned by the pledgee and it gives him an itchy rash, etc., then
there shall be no indemnity nor any other compensatory act or
omission against it.
420 e Arabic word used for increase is namā’. It includes all
natural extensions and expansions such as the fruit of a tree, the
offspring of an animal, or the growth on land, etc.
421 Such as a lamb born to a pawned sheep.
422 Loss of the increment will not raise liability against either
party.
423 A, the pledgor, pledges a cow for twenty dinars, but it is only
worth fifteen dinars on the day that pledgee, B, takes possession of
it. e cow delivers a calf and it itself dies. A wants to free the calf,
which is worth fifteen dinars, on the day of its redemption by a,
from the pledge and take it for himself. A may free the calf by
paying B the fifteen dinars. e remainder, which is five dinars, is
waived due to the value of the calf against the cow. B incurs a loss of
five dinars, whereas A incurs the loss of the cow. Neither can claim
against the other.
424 e pledge was raised against the debt. Any increase in that
debt will not allow the pledge to be secured against either of the
considerations, that is, against the original collateral and against any
increment therein.
425 is refers to his children who are adult and not minor
children.
426 e pledgor has deliberately and implicitly taken responsibility
for it, knowing that its protection by the pledgee is impossible when

820
the pledgee is not in possession of it.
427 e collateral is the responsibility of whoever has possession of
it. If it perishes in the possession of the pledgor when he has
borrowed it back from the pledgee, then the former is responsible
for all that happens to it such as injury and loss incurred. Its
perishing “without anything” refers to the responsibility of the
pledgee, who is free from any liability, whereas the pledgor is liable
to replace the borrowed collateral. is, however, does not nullify
the contract, nor does it absolve either party of anything.
428 e minor is normally deemed to be of mature and rational
thought when he attains majority. In this case, when it is noticed
that such a minor does not possess rational thought and that he may
be insane, his property and wealth are not surrendered to him, in
order to take precautions in case he may wreck it. If the
circumstances persist, the property is kept away from him until he
reaches twenty-five years of age.
429 e fool, of major age, may free a slave, but the slave is free
subject to paying off his own value in labour.
430 Abū Yūsuf and Muḥammad.
431 It is the right of his wife, children and others in his family and
household to be maintained by him. Foolishness does not take away
their right upon him from them.
432 is is the general rule of all bequests, that they are not to
exceed one-third of the property left behind by the deceased.
433 Likewise, if he has dinars and his debt is also in dinars, the
judge may settle the debt without his authorisation.
434 If the insolvent confesses to a debt or loan, other than one of
those in the case that is pending, then that loan or debt will not be
taken into question within this case. It becomes due on him after
the decision in the case that is pending and after he has settled those
debts.
435 Az-Zubayrī says in al-Jawharat an-Nayrah, “…for he only
detains him in custody if he is of ample means. As for if he is in
straitened circumstances, then he does not detain him in custody.”

821
Presumably the case here refers to someone who is able to discharge
his debts but reluctant to do so. Ed.
436 is is where he possesses property that he has yet to pay for or
a loan that he has yet to settle.
437 is is where he has yet to pay regarding a contract that he has
entered into.
438 is refers to the deferred form rather than the immediately
payable.
439 e insolvent, when he claims not to own any property, may be
detained on account of the preceding cases. Otherwise evidence of
his ownership of property must be established.
440 e insolvent may be trading property or goods for someone
else, or he may be working for another person which requires
travelling and disposing of goods from place to place, etc.
441 e creditors must not demand anything from the insolvent
debtor.
442 e dissolute must be safeguarding and utilising his property
wisely, otherwise interdiction may be brought against him.
443 In this case, the insolvent possesses goods that belong to
another person. at person is like a creditor to the insolvent, and
the goods owed to him are the debt.
444 e item must be of value, like an orchard, a dinar, etc., and
not something that has no value, like a grain of rice.
445 He is the one who confesses or acknowledges.
446 Two hundreds dirhams, the least amount of silver from which
zakāh would be taken, is considered to be a large amount of wealth.
447 Ten dirhams are considered to be lots of dirhams.
448 If A says to B, “I owe you thirty dinars except two dinars,” A
owes B twenty-eight dinars.
449 An example of a little amount is when A says to B, “I owe you
ten dinars except two dinars,” A owes B eight dinars.
450 An example of A lot is when A says to B, “I owe you ten dinars
except eight dinars,” A owes B two dinars.

822
451 When A says to B, “I owe you thirty dinars except thirty
dinars,” the exception is void and A has acknowledged owing thirty
dinars.
452 He does not qualify the hundred. Ed.
453 He does not qualify the hundred. It could mean, for example,
“one hundred dirhams” and a garment. Ed.
454 Contrary to the previous case, it is unlikely that someone may
owe garments to another in such a large number. With regards to
dirhams and dinars, it could be either, but due to the lack of
qualification here, the one who acknowledges will be asked to
explain his intended meaning. It is quite customary to use numbers
unqualifiedly to mean dirhams.
455 A acknowledges that he owes B one hundred dirhams, on the
condition that he has a week to pay that to him. e
acknowledgement of owing the one hundred dirhams is binding
upon A, but the condition of a week to pay B is void.
456 If someone acknowledges that a certain house belongs to
someone else (the one in whose favour the acknowledgement is
made (muqarr lahū)) and that its structure belongs to himself, then
the house, together with its structure, belong to the one in whose
favour the acknowledgement is made (muqarr lahū), because it is
unlikely to find a house divided in such a way.
457 Unlike the preceding issue, such a division is likely.
458 He is required to surrender, on demand, the dates together
with the basket to the one in whose favour the acknowledgement is
made (muqarr lahū).
459 e beginning is one, whatever comes after it is two, three…
until ten. e limit, which is mentioned in the statement here, is
ten, which is to be dropped. We are left with nine as the highest
number before the last one is dropped. Imam Abū Ḥanīfah, may
Allah have mercy on him, uses this method in such-like cases.
460 Abū Yūsuf and Muḥammad.
461 If A says that he has a ring that belongs to B, then A gives the
complete ring to B, the annulet together with the stone that is
affixed to it.

823
462 is is the terminal illness that leads to someone’s death.
463 For example, A is on his deathbed. He acknowledges debts of
five hundred dinars, of which three hundred dinars he incurred
while in good health. Two hundred dinars were incurred during his
final illness, of which one hundred dinars are outstanding bills. e
remaining one hundred dinars are from unknown sources. In
payment of these debts, the three hundred dinars that were incurred
during his good health are given priority, together with the bills due
to them being of known sources. e final one hundred dinars will
be paid off if and when there remains anything.
464 A divorce of the irrevocable type and at the instance of the wife
otherwise she receives her share from the inheritance.
465 If he divorces her only once or twice, and he dies during her
period of ‘iddah, she receives her share of the inheritance.
466 e purpose of the receipt of the lesser amount is that giving
the woman more than her right of inheritance and thus depriving
the other heirs of their fair shares is possible. In order to avoid such
injustice, the lesser of the two will be given to the divorcee.
467 If it is possible that a child of such description can biologically
be born to him, such as the relevant age of the confessor, etc.
468 One may say that so-and-so is his mother, father, wife, son,
daughter or master.
469 When someone claims another to be his brother, or uncle, etc.
470 Irrespective of the closeness or distance of the relationship, the
known relative will overshadow the one in whose favour the
acknowledgement is made (muqarr lahū) with regards to the
entitlement to inheritance.
471 In the absence of a known heir to the one acknowledging, the
one in whose favour the acknowledgement is made (muqarr lahū)
will be worthy of the inheritance and become an heir.
472 is refers to all types of smithery, especially the occupation of
the blacksmith.
473 is refers to heavy duty milling which requires the use of
animals or large amounts of water. With regards to hand-milling, it
is acceptable.

824
474 ese three types of work are generally those that can possibly
cause damage to the structure of the building. It is, therefore,
necessary that when someone intends to carry on any such trades or
work in a house or shop, he must mention that to the lessor.
475 Some crops could prove harmful to the land or to adjacent land
and crops, therefore it is important that the tenant mentions
whatever he is to cultivate in it in order to avoid future disputes.
476 Contrary to the preceding issue, the tenant may stipulate the
condition that he is to cultivate whatever he wishes.
477 When the building and the trees have been stripped, the
landlord may pay the tenant the value of the same in their current
state and he takes ownership of them.
478 If the landlord is happy with the tenant leaving the trees and
the buildings as they are and he does not charge or pay the tenant
anything with regards to them, the landlord remains the owner of
the land and the tenant remains the owner of the buildings or trees
thereon.
479 If the lessee does not mention anyone specific to be mounted.
480 is rule applies to all leasable goods that are liable to change
due to the different nature and skill of each individual user.
481 e nature of the load with respect to possible harm caused
must be the same or less. For example, barley, sesame, corn, etc.
resemble wheat when loaded, whereas planks of wood, sacks of
potatoes and bags of coins differ.
482 As in the last note, the iron is more harmful to the animal than
cotton of the same weight.
483 An employee held in common means someone who is self-
employed and provides his services to a variety of people. Ed.
484 A private employee is someone who is employed by one person.
Ed.
485 Abū Yūsuf and Muḥammad.
486 i.e. he lets blood.
487 So long as the owner authorises the surgery.

825
488 is is the general case, that whatever is destroyed, or even
harmed, whilst in his bona fide possession and by his responsible
undertaking, he is not liable for any damage caused.
489 If, however, he oversteps the boundaries of caution and causes
damage to anything that is in his possession due to the nature of the
work, he is liable for it. For example, if while driving a taxi that
belongs to someone else and for that owner, he negligently scrapes
its body against a wall causing damage to it, he is liable for the
damage caused to the taxi.
490 e services of a hired slave are naturally going to be availed of
within the home or other domestic environment. e journey
consists of further hardship relative to the home, therefore the lessee
must state his desire to the lessor of taking the slave on the journey
with him.
491 e contract was to load supplies of a specific amount, say, one
hundred kg in weight. Along the way, he has eaten, or used up,
twenty kg of those supplies. He may purchase more supplies in
order to make up the one hundred kg that was stipulated in the
contract. He must not, however, exceed this amount.
492 Once the parties have entered into the contract of ijārah, the
remuneration does not become due merely by virtue of its being
established.
493 e employee or hireling stipulated that he wanted to be paid
promptly.
494 e employee, hireling or lessor, may be remunerated in one of
three ways:
a. When a condition is stipulated that the lessee, or employer, will pay him before the
work is done (conditional advance payment),

b. When the employer pays the employee in advance and no such condition is
stipulated (unconditional advance payment), or

c. When the benefit from the contract has been achieved by the hiring party.

495 Makkah is used here as an example; this applies to all locations

and distances.

826
496 e cameleer may demand, separately, the fare for each stage as
it is covered.
497 eir services are availed of for a specific purpose, the
fulfilment of which is required in its entirety. Hence, the wages are
paid after the completion of their work. e exception to this rule is
that advance payment may be made a precondition to the fulfilment
of the obligation.
498 Until the cooked bread is withdrawn from the oven it is
regarded as useless, therefore the withdrawal of the cooked bread
from the oven is, in effect, the fulfilment of the contractual
obligation.
499 e condition is binding.
500 If he leaves the tailoring until the next day, he is not paid
according to the condition stipulated by the hirer. He is paid
according to the customary rate (mithl) of an average tailor of that
area, but the maximum that he may be paid is only half a dirham,
even if the customary rate may exceed that, say, three-quarters of a
dirham.
501 Abū Yūsuf and Muḥammad.
502 ey are the months of renting the house.
503 is is a repetition of the first part of the last issue, without the
designation of more than one month.
504 A and B share the ownership of a house. A cannot let his share
of the house to anyone except B.
505 Abū Yūsuf and Muḥammad.
506 Or any other milk apart from her own, and this includes
powdered milk, since it would be powdered cow, sheep or goat’s
milk.
507 It must be borne in mind that stipulations in contracts, of
whatever kind, divert the natural course of the contract in the favour
of either or both of the parties to the contract. It is a form of
customising the contract as and how the parties choose.
508 If the employer, customer or hirer does not specify the
condition that the artisan is to work alone, then the artisan may

827
avail of the services of someone else, such as an apprentice, partner
or another artisan, in the pursuance of the objective of his job.
509 at is if the tailor differs with the owner of the cloth. e
same applies to the dyer.
510 Mithl remuneration is that pay which is paid to the employee,
hireling, etc. according to the rate and kind that one would be
entitled to if the lease was valid.
511 e preconditioned amount is the maximum that one would be
entitled to in this type of transaction or labour.
512 e landlord is entitled to rent from the tenant as soon as the
latter takes possession of the house; the fact of possession validates
the remuneration.
513 e contract of lease, in cases such as these, self-rescinds, in the
favour of the leaseholder and against the interest of the lessor, due to
the perishing of the principle factor of benefit from the property.
514 e tenant cannot pay the rent of the shop due to the
destruction of his goods which he would have sold in order to
accumulate money for the rent. e landlord is therefore deprived of
his rent, which, ultimately, renders the lease void.
515 Contrary to the last issue, the landlord becomes bankrupt and
he is required to sell off his property in order to settle the debts that
are due on him. e court intervenes into this contract of lease and
the judge orders the sale of the property, the proceeds of which are
advanced towards the settlement of the debts.
516 If the journey is postponed due to unavoidable circumstances,
then the lessee is not liable for anything and the rescission of the
lease is justifed.
517 If the person hiring out the mount postpones the journey on
his own accord and demands rescission of the lease, he is liable to
pay to the lessor whatever is due to him.
518 Although the word wājib has been used in the original Arabic
text, which is ordinarily translated as ‘obligatory’ when in the form
wājibah ‘alayhi ‘obligatory on’, but when it occurs as wājibah lahū it
means ‘a right for him’ or ‘his right’. e obligation is not a binding
one, so as to compel each and every associate in sold property to file

828
a suit for preemption. e term wājib refers to a right, in this
context, which the associate enjoys, as far as his interest in the object
of the sale is concerned.
519 Khalīṭ is derived from the verb meaning to ‘mix’, and indicates
someone with whom ownership of property is mixed so that it is not
clear where the ownership of one ends and the other begins. is is
a degree more than partnership.
520 e associate may not enjoy a share of ownership but his right
of use and derived benefit entitles him to the right of preemption.
521 Neighbours are those whose houses are next to each other’s,
and the wall between their houses is the same or is connected.
522 e associate eclipses everyone’s right of preemption.
523 is is known as mawāthabah (prompt assertion of a claim).
524 If the object of sale, for example a house, is still in the
possession of the seller, the preemptor is to approach him and call
witnesses against him. If it is in the possession of the purchaser, the
preemptor approaches him with witnesses. If neither of the two is
available then the preemptor approaches the object of sale itself,
which is the house, and calls the witnesses there.
525 Once the witnesses have been made, the preemptor is to take
the matter to court. If he delays filing the suit, no harm befalls him
and his right of preemption is valid.
526 is may also refer to a grove.
527 Here, we understand that though preemption is established in
landed property, its consideration against the purchaser must be of
value, which is termed māl (property, wealth).
528 When the house is presented as dowry by the husband to the
wife.
529 When a woman releases herself from marriage by giving her
husband the house.
530 When one rents another house in lieu of it.
531 When someone guilty of intentional killing pays it as
compensatory payment to the heirs of his victim.
532 Which is paid to him for setting a slave free.

829
533 When the buyer remains silent on the nature of the transaction
due to the property not yet being transferred or denies the sale
altogether due to its not taking place, and then the plaintiff and
potential preemptor submits some payment for the house to the
buyer, the preemptor cannot bring a suit of preemption against the
buyer due to his negation or silence; ownership of the property has
not lapsed by receiving payment.
534 e acknowledgement would be a positive note in response to
the plaintiff ’s suit.
535 In favour of the preemptor.
536 If, after discovering a blemish in the real estate, or after
examining it and it not being according to his standard of choice,
the preemptor may return the real estate due to his position as of
that of a buyer.
537 e buyer is responsible for any blemish that may appear in the
property after the preemption order until its handing over to the
preemptor.
538 e preemptor is compelled to summon witnesses to at least
one of the three prescribed places in order to qualify for the right of
preemption. is initial step settles this right, otherwise, no such
right exists.
539 If A, the preemptor, accepts a consideration from B, for
example another house, waiving his right of preemption, then files a
lawsuit claiming preemption, the lawsuit is rejected and he is
ordered to return the consideration to B. Acceptance of the
consideration denotes his willingness to drop the right of
preemption.
540 Where such a right is vested in the individual only, it is non-
transferable and is not inherited. e right of preemption dies with
its owner.
541 e preemption is only a right of the associate and not of the
buyer. e death of the buyer does not herald the termination of this
right, which would be a grave injustice against the associate, who is
the preemptor. is right survives as against the buyer and the seller.

830
542 is is so because he knows of the sale and does nothing to
prevent it, rather he is an accomplice in it.
543 e stipulated option to withdraw does not conclude the sale
indefinitely, and the seller has a conditional right to return the real
estate to himself.
544 ere is no contract of sale here which would allow room for
the preemption.
545 When A gives B a house and receives from B some property in
exchange, stipulating the property as a consideration for the gift of
the house in question, such a gift, technically, becomes a sale,
therefore, the right of preemption arises for the preemptor. If,
however, no consideration is made, then no right of preemption
exists.
546 If the original sale was for one hundred dirhams and the seller
reduced it to eighty dirhams for the buyer, then after the suit of
preemption has been decided in the favour of the preemptor, the
preemptor shall only be required to pay eighty dirhams for the real
estate.
547 In contrast to the previous issue, if the seller reduces the price
from one hundred dirhams to nothing, the preemptor is required to
pay the full price of one hundred dirhams.
548 If the buyer pays one hundred and twenty dirhams instead of
the sale price of one hundred dirhams, the preemptor is not required
to pay the extra twenty dirhams, but only the original one hundred
dirhams.
549 When four people own a house with their respective shares in
different percentages: A owns fifty, B twenty-five, twenty and D
five. B sells his share of twenty-five percent and the other
shareholders file suit for preemption. e judge will award each of
the three preemptors one-third of the property and their respective
shares of ownership of the property will be disregarded.
550 Because the item of consideration is one that is uncommon, its
value is taken into account and the preemptor is required to pay
according to that value.

831
551 One case may be where the preemptor enjoys the right of
preemption against both pieces of real estate. e other case is
where the buyer has bought the real estate by paying in real estate,
now the preemptor may pay according to the value of the real estate
that is given in consideration for the real estate in question.
552 e associate in the property had relinquished his right to
preemption on the understanding that the real estate was sold for a
high price; one that he could not afford. Later, it was disclosed to
him that the price of the sale was not that high after all, or the sale
may have been at a high price but paid by means that he could
afford, say a transfer of rights or part-exchange. After such
disclosure, the associate has a right to sue for preemption and his
relinquishment of his right to preemption is not taken into account
due to its invalidity.
553 In contrast with the previous issue, dinars are money and the
associate’s relinquishment is also based upon the excess of monetary
value.
554 e distance of one cubit between the property of the
preemptor and the sold real estate is enough to avoid the suit of
preemption, whereas any lesser gap would suffice for the right of
preemption.
555 A purchases from B one-tenth of a property. en, he
purchases the other nine-tenths. C, the preemptor, only has a right
of preemption in the first sale of one-tenth and no preemption in
the second sale of nine-tenths.
556 Naturally, the buyer would put the bought land to beneficial
use. e preemptor may pay the buyer for the value of the building
and/or the plants, or he may uproot everything and charge the buyer
for it.
557 A calamity does not render the preemption void nor does it
over-privilege either party.
558 is is the land surrounding the ruins as well as the land upon
which the destroyed building once stood.
559 e fruit on the trees belongs to the preemptor, therefore, any
picking of the fruit results in a reduction of the price according to its

832
value.
560 e buyer’s stipulation of maintaining innocence on the
discovery of a blemish does not hold in the way of the preemptor’s
right to return the house.
561 ere is no change of ownership here nor is there any sale of
the property. e shareholders in the property have merely divided
the real estate.
562 If the preemptor decides not to file for preemption and the
buyer returns the real estate to the seller by the decision of the judge
on the account of a no obligation right of return condition or on
discovering a blemish, the preemptor, or associate, may not now file
for preemption. In this case, there are the following ingredients: the
buyer must have bought the house, the preemptor must have
relinquished his right of preemption, the buyer must have returned
the house to the seller due to a condition or a blemish and such
return must have been legally authorised.
563 With regards to this partnership, both partners must agree to
carry on business with the conditions that their contributed wealth,
its disposal and the debt that accrues therein are equal between the
two.
564 ese are what the partnership of sharikat al-mufāwaḍah is
based upon.
565 Each is the agent for the partnership and each stands surety for
the other.
566 e exception to this includes personal bills and other forms of
personal financial rights and liabilities.
567 Either partner acts as an agent and as a surety for the other,
according to what the partnership is based on. A creditor may
demand payment from either partner.
568 It is a condition of mufāwaḍah that both parties remain equal
with respect to their wealth, its disposal and in their debts
throughout the course of the partnership. One partner gaining of
that which may be used in the partnership, by means of inheritance
or gift renders him of a higher amount of wealth than his partner,
thus, it renders the partnership of mufāwaḍah void.

833
569 Fulūs, singular fals, are small copper coins whose value is such
that forty-eight of them equal a dirham ey were used in small
transactions for everyday household items. Some confusion arises
because fulūs is used as a modern term for money per se. Ed.
570 Common currency is what mufāwaḍah is based upon, like
dinars and dirhams and fulūs. Other forms of monetary value, like
gold nuggets and pieces of silver are also permissible, but only when
such valuable items are used commonly by the people. ose who
take the judgement that paper currencies are equivalent in value to
gold and silver extend the judgement to pounds sterling, dollars,
rupees, riyals, euros, etc.
571 is is to ensure equality between them in pursuance of this
partnership.
572 Also Sharikat al-Amwāl.
573 Each partner acts as the agent for the other, but no partner is
liable for the acts or omissions of the other due to the absence of
surety-like conditions in ‘inān.
574 Unlike mufāwaḍah, where the wealth of either party must be
equal, in ‘inān, the amount of contributed shares may differ.
575 It is permitted if A, B and C contribute £50 each towards the
business and they agree that A shall take 60% of the profits, B shall
take 25% and C shall take 15% of the profits.
576 e partners need not contribute all of their wealth towards the
partnership.
577 All of the conditions of mufāwaḍah apply to ‘inān, other than
those that have been specifically mentioned here.
578 Hence the agency and not surety.
579 For example, A purchases an item for the partnership at the
cost of ninety dirhams. ere are three partners in the partnership,
A, B and C. A may recover sixty dirhams, thirty dirhams from each
partner according to their respective shares.
580 e complete destruction of the partnership’s property, or if the
property of one partner is destroyed before either of the two partners
have purchased anything renders the partnership void. Lack of

834
wealth or property from one or both partners is invalid in limited
partnership (‘inān).
581 e purchase was made whilst the partnership of ‘inān was
valid. Any act or omission performed in the name of the partnership
during its time of validity binds all the partners.
582 For example, when they stipulate that B shall receive a fixed
amount of ten dirhams from the profits rather than a proportional
share.
583 In which the capital owner shares profit with an agent in trade
but bears losses himself alone. It also known as a dormant
partnership (See Chapter of Muḍārabah – Profit-Sharing
Partnership).
584 Also Sharikat al-Abdān, partnership in labour.
585 If A and B are partners in tailoring and A manufactures a suit
for the client and pays him, the payment is divided between A and
B, even though B did not work on it.
586 e profits are enjoyed between the partners according to their
shares in the bought commodity.
587 Only the worker is entitled to the remuneration and there is no
partnership.
588 e worker is entitled to the remuneration and he shall pay the
other for the use of his item or animal.
589 Partnership cannot be inherited.
590 It becomes practically impossible to undertake business in such
circumstances, which is why it has been declared invalid.
591 e payment of zakāh is a personal obligation and not a part of
the partnership.
592 When each of the partners discharges his own zakāh as well as
that of his partner at the same time, knowing that his partner has
already discharged his share of the zakāh or not knowing that, the
latter of the payers is liable for the payment of the zakāh of his
partner.
593 Abū Yūsuf and Muḥammad.
594 Also known as qirāḍ.

835
595 “Partnership is only concluded with dirhams, dinars and copper
coins (fulūs) that are in ready demand, and it is not permitted in
anything other than that unless people deal in it, such as gold
nuggets and silver; in which case partnership is valid in them.” is
can be seen in the Chapter of Sharikah – Partnership.
596 Neither can specify an amount of the profit. All profits are
divided between them according to their pre-agreed shares.
597 Like the un-marriageable close relative (dhū raḥm maḥram)
relatives, because these relatives may not be owned as slaves by the
owner of the capital and so automatically become free.
598 Such purchases are invalid as far as the contract of profit-
sharing trade is concerned. ese purchases are not made from the
capital but from the working partner’s own pocket.
599 He compensates for any loss incurred in the capital.
600 If the capital was worth one hundred dirhams and the working
partner buys an un-marriageable close relative (dhū raḥm maḥram)
of the owner of the capital for that price, and then the slave’s price
increases to one hundred and twenty dirhams. e working partner
is free of his liability for the capital to the owner of the capital.
601 With reference to the previous issue, the slave will work for the
owner of the capital to pay off the extra twenty dirhams that his
value has increased.
602 e giving away of the capital and the disposal of it is not a
condition of liability but rather, it is the profit that is a condition.
603 For example, the working partner (muḍārib) may, with prior
permission from the owner of the capital, enter into another
contract with another working partner (muḍārib), as a
subcontractor, on the basis of paying him a third of the profits.
604 ese shares are formed according to the stipulated conditions
that were made in the original contract and the subcontract.
605 is is according to the subcontract.
606 e first working partner (muḍārib), i.e. the working partner to
the original owner of the capital.
607 Muḍārabah is like agency wherein the death of either party
dissolves the contract.

836
608 Knowledge of the deposition is a requirement, just like that of
agency, where the agent continues to work in his normal capacity as
an agent until informed of his deposition.
609 When the contract of muḍārabah is rescinded.
610 is is a condition of the contract itself where the loss is to be
incurred by the owner of the capital himself.
611 ere is no link between the first and the second contract of
muḍārabah.
612 e working partner.
613 If the contract of the individual is forbidden for himself, it is
also forbidden to appoint an agent for it, as in trade in alcohol and
pork, etc.
614 e rights and liabilities of punishments for contraventions of
the limits (ḥudūd) and retaliatory punishments (qiṣāṣ) are
individual-based; they cannot be delegated or transferred, hence the
impermissibility of the appointment of an agent.
615 e principal must be one who owns a right and enjoys the
power of its disposal and due execution in order for him to delegate
that authority to the agent, and the rulings are binding upon him.
616 e rulings of agency must be binding upon the principal for
him to appoint the agent and authorise him with rights and impose
on him duties. e minor and the insane person are thus not
allowed to appoint agents due to the absence of the relevant rulings
binding them.
617 is concerns financial transactions but, as we shall learn later,
other interactions are also included.
618 Agency cannot be imposed upon someone who does not intend
to become an agent for the principal.
619 is goes against the general rule, but it does not come without
the following condition.
620 e agent enjoys the rights of the principal regarding the
agency and its subject. In this case, such rights remain with the
principal and they are not delegated to the agent.
621 is is connected to the preceding issue where the agent has
paid from his own property. e payment to him from the principal

837
remains due.
622 If the price is more than the value then the agent recovers it
from the principal.
623 e agent is liable for the complete price, irrespective of the
value.
624 e principal may rescind the agency at any time due to such
right vested in him.
625 In all such cases, the principal loses his capacity of overseeing
and approving any action or omission by his agent.
626 He is rendered incapacitated with regards to his payment of the
kitābah dues.
627 If the judge had declared him someone who has moved to
enemy territory as an apostate then when he returns, he does not
return as an agent. If the judge has not declared him as such then
his return to Muslim lands as a Muslim means that he is still
qualified as the agent.
628 e purpose of the agency has been lifted by the act of the
principal.
629 Male relatives in this issue include their female counterparts,
such as mother and daughter, etc.
630 One’s dealings with them have the possibility of an interest for
either party which may invite public criticism or even the allegation
of corruption from any third party, including the principal himself.
631 Abū Yūsuf and Muḥammad.
632 e basis of the difference between the two opinions is where
Abū Ḥanīfah, may Allah have mercy on him, relies on the agency
being unconditional and Abū Yūsuf and Muḥammad, may Allah
have mercy on them, tie it down with conditions.
633 ere are two scenarios to this issue:
a. If the valuers, or the experts in such commodities, are unable to ascertain the value
of any such commodity, then it is deemed to be one which the people are not
accustomed to;

b. If the seller prices it so that it does not correspond to the local price and the valuers
do not recognise the attributed price as customary, then it is one that the people are

838
 not accustomed to. Agency, therefore, is invalid with regards to such a commodity
and such a price, respectively.

634 Abū Yūsuf and Muḥammad.

635 at the debt collector is his agent and that the debtor is bona
fide.
636 If it is not in the agent’s possession, the debtor may not claim it
from him.
637 ey are also known as physical surety and financial surety.
638 is refers to life or slavery, depending upon the circumstances,
and as the case may be.
639 is is the liability of the one standing surety when he has
agreed to be surety against the default of or delinquency of the
principal.
640 is is when the surety has fulfilled his obligation of presenting
the principal.
641 Litigation is not possible in the wild, hence the
impermissibility.
642 ere are two separate surety contracts involved in this issue: i.
surety of property, which is for the one thousand coins, and ii. surety
of person. Neither is connected to the other, therefore, the
settlement of one does not discharge the surety of the other.
643 ese cases are individual liabilities and, therefore, punishable
on the perpetrator himself.
644 e debtor in this case is the principal, the person who
originally owes the debt.
645 e statement or declaration of the person for whom surety is
undertaken (debtor) is not of more weight than that of the person
who is surety.
646 e creditor, etc.
647 One may not stipulate a condition to free the person standing
surety other than the genuine purpose for which the contract of
surety was entered into.
648 Payment is price, as against value.

839
649 e goods are liable to change and destruction, which one can
never guarantee.
650 Only a half of the payment is from the primary obligor, and
any excess is from himself.
651 He is like the person who stands surety.
652 is is when the liability is transferred to the person to whom
responsibility for the debt is transferred (muḥṭāl ‘alayhi).
653 is is when one gives credit to another and the creditor
decides to receive the debt from a third party in another city, thus
relieving himself from the perils of travelling with wealth. Money
orders, traveller’s cheque, etc., fall within this category.
654 It is derived linguistically from muṣālaḥah – negotiating a
settlement – which means musālamah – conciliation after differing.
In the sharī‘ah it is an expression denoting a contract made between
the parties negotiating the settlement in order to prevent quarrels by
reaching mutual agreement and is interpreted to apply to contracts
governing transactions. Its fundamental support is making an offer
and acceptance. e two subjects of negotiated settlement and its
precondition is that over which the settlement is reached should be
property or a right for which it is permissible to offer compensation
or a substitute for (Al-Jawharat an-Nayrah). Ed.
655 is type of negotiated settlement is like a sale, wherein the
option of return, the stipulated option of examination, the right of
preemption, etc. are applicable, so long as it is determined according
to property-for-property transactions.
656 is is because such contracts are based on profit whereas the
property remains in the ownership of the original landlord all the
time.
657 When A is in possession of an item which is claimed by B, and
A makes a settlement with B to continue his possession by paying
him one hundred dirhams, but later it is proven that the item
belongs to C, A takes the one hundred dirhams back from B.
658 As to what proportion of the house, or what specific part, is his
share.

840
659 is is justifed due to the lack of specific share or portion of the
house. e part or portion which the claimant demands may or may
not be the part or portion of the rightful owner.
660 Ḥadd offences (pl. ḥudūd), i.e. punishments for contraventions
of the limits, are the rights of Allah alone and no-one is permitted
to vest these rights.
661 is is similar to the kitābah agreement written with a slave to
purchase his freedom.
662 is would render it a sale or the compensation, a fine.
Tendencies of usurious dealings are possible.
663 e creditor has waived his right to receive a thousand good
quality dirhams and has accepted five hundred inferior dirhams
which are adulterated with other metals, and written off the
remainder of the five hundred by relinquishing his right to them.
664 When something is due from another and the former allows
him to delay payment, it is understood as if the former postponed
his own right of receiving that payment.
665 In relation to the last issue, the payment of dinars in exchange
for dirhams is not permitted due to its rendering it a usurious
transaction.
666 ‘Black’ dirhams are poor quality, adulterated coins. ‘White’
dirhams are presumably better quality and purer coins. Ed.
667 is renders the settlement a contract based on usury, which is
prohibited.
668 e agent.
669 e other partner may demand a quarter of the debt from his
partner and the remaining quarter from the debtor. As in the
previous issues adjacent to this one, the other partner may resort to
the debtor for his complete share of the debt and leave the quarter
share from his partner.
670 It is permitted, be it of whatever amount or kind.
671 A inherits from the deceased along with B, C, D and E. e
inheritance includes gold, silver and other goods. B, C, D and E
want to exclude A from the inheritance and want to negotiate a
settlement with him by giving him gold and silver only, thus

841
depriving him of other goods. What they give him in gold and silver
must be more than his normal share of gold and silver from the
inheritance in order to make up for the value of the other goods
which they are depriving him from. Otherwise, this would be
rendered a usurious deal.
672 He waives his share of debt upon them.
673 Hibah is a contract for which the basic elements of a contract
are necessary, and they are the elements of the offer and the
subsequent acceptance.
674 He is the donee.
675 He is the donor.
676 Where the session (majlis) has changed.
677 When others may claim a share therein, and it has the
potential to be divided whilst retaining its benefit, like fruit, crops,
etc.
678 i.e. rights of inheritance, of passage, etc.
679 If the gifted item is indivisible, like a slave, a car, etc., then it
may be given as a gift.
680 e person who gives the gift gives away only his portion of the
shares.
681 Abū Yūsuf and Muḥammad.
682 Like payment or another commodity.
683 Such as when the gift is fruit, and the person given the gift has
mixed sugar and other substances with it to make it into jam.
684 When the person given the gift sells it or gives it as a gift to
someone else.
685 When one grants a gift to another person such that the person
given the gift may occupy, or possess, the gift as long as the latter
lives.
686 Also donee.
687 When one acquires ownership of property if he survives the
other.
688 Zakāh is paid from specific categories of wealth, therefore,
ṣadaqah is also to be paid from the same category as that of zakāh.

842
689 Someone vows to donate all of his wealth, which is one
hundred dirhams. He retains fifty dirhams to spend on himself and
on his family. After he has earned more wealth, he donates the
amount that he had retained from the original donation, which was
fifty dirhams.
690 e analogy of releasing a slave has been used here.
691 He is the beneficiary of the endowment.
692 e beneficiary is not entitled to sell, gift or pledge the
property of endowment due to the fact that he does not acquire its
ownership.
693 When A endows B the proceeds of his property, and after the
death of B, to C, or to the poor and needy forever, etc.
694 When A endows B with the proceeds of his property but does
not mention anyone after B, then upon the death of B, the
endowment passes to the poor.
695 is includes all bovines, such as oxen and other working
animals such as those of the horse family.
696 Abū Yūsuf, may Allah have mercy on him, specifies common
property in this issue due to being alone in validating its
endowment, whereas the other Imams are completely against the
endowment of common property.
697 If some slates fall off the roof of the endowed building, the
judge (ḥākim) shall, if he feels the need, restore them or put them to
beneficial use in the endowed building. He may also sell them and
utilise the proceeds thereof for the repairs of the building.
698 He retains building materials and the like for future use.
699 is is when someone separates the building by making a
separate path for it.
700 By his verbal expression that he has endowed it howsoever.
701 e usurped item must be returned in its original form. If it
has perished and it was of a fungible nature, i.e. easily replaceable
due to its common availability, and it was of real nature, i.e. of
weight, measure, etc. then the usurper must replace it.
702 is is because it is not possible to replace it.

843
703 Seizure of landed property, or of property that is not liable to
change, does not constitute usurpation (ghaṣb).
704 e Imam regards that there is a possibility of usurpation in
real estate as well as in movables.
705 In this option, the owner keeps the slaughtered goat and
receives compensation from the usurper.
706 e victim of usurpation, if he was the owner, ceases to be the
owner.
707 e usurper buys the item from the victim according to its
original value prior to the alteration.
708 e usurper has built upon it using bricks, stones, mortar, etc.,
and it is now non-returnable due to the impossibility of removing it
without severe damage being caused. e usurper compensates the
victim according to the value of the beam.
709 If, due to eradicating the building and the trees, the land is
likely to suffer loss by whatever standards, the owner may pay the
usurper the value of the planted trees and of the standing building as
if they had been eradicated, and not according to their value as they
stand erect on that land.
710 If the slave-woman was worth one hundred dirhams before
bearing child and sixty dirhams after childbirth, the usurper
compensates the owner with forty dirhams. If the child is worth
forty dirhams, the usurper does not compensate for anything due to
the value of the child making up for the loss incurred. If, however,
the child is worth only ten dirhams, the usurper compensates for
any difference, and that, in this case, is thirty dirhams.
711 Such items are of value to a non-Muslim who considers them
as lawful.
712 A Muslim has no lawful use for alcohol or pigs, therefore, they
have no value, and hence, no compensation is due for their wastage.
713 A deposit is something left on trust with someone or in his
safe-keeping. It is also known as a bailment of goods.
714 He is the bailee.
715 Liability for the destruction of, or damage caused to, the
deposit is not placed against the keeper (bailee) under normal and

844
reasonable circumstances. Where any such liability is mentioned, it
is imposed due to diversion from the general circumstances, like
transgression, etc.
716 Household includes all those who live with him in his home,
be those of blood or marital ties or of no relationship other than of
sharing the same residence, but does not include his minor children,
lunatics or those who lack reason and discrimination between right
and wrong. e keeper is permitted to protect the deposited item by
his household members due to the impossibility of his keeping it in
his own possession all the time.
717 If there is nothing restricting the keeper from submitting the
deposit to the depositor on his demand and it is damaged or
destroyed, the keeper is liable for such damage or destruction.
718 Both share the mixed product according to their respective
shares therein.
719 is is when the keeper refuses to acknowledge the contract of
deposit.
720 If the deposit is too heavy and burdensome and the passage is
hazardous, the keeper is not permitted to travel with it.
721 A places some books as deposit with two persons, B and C.
Neither B nor C may take the deposit to themselves as a whole.
ey may, however, split the books, each of the two taking a half of
them.
722 ere is no choice in this issue because the deposit, say a cow,
is not divisible, and only one of the two may possibly safeguard it at
any one time.
723 e wife is a part of the household and she may protect the
deposit on behalf of the husband, who is the keeper.
724 Houses, in terms of safety and security, are different. If the
house used for the deposit is more secure than the one chosen by the
depositor, the keeper is not liable in the case of destruction or
damage caused to the deposit.
725 is is a commodity loan.
726 ese words are also used for giving a gift, therefore, it is
necessary that one makes his intentions clear when lending them

845
out on loan.
727 General rules of trust apply to all loans used in a reasonable
manner.
728 As distinct from i‘ārah, qarḍ is the use of the item itself which
subjects the item to change hands and loss of its possession with
regards to the borrower. is is against the rules of i‘ārah where the
benefit derived from the borrowed item is achieved and it does not
change hands, nor does the borrower lose possession of it.
729 Time, as one of the conditions of the contract of ‘āriyyah,
cannot be overlooked; its breach raises the liability in the favour of
the aggrieved party, as against the lender.
730 If the borrower hires a taxi, or any other form of
transportation, to transport the item that he has borrowed to and
from the premises of the lender, he alone is required to pay the
charge for such transportation.
731 e foundling is not to be treated like a slave.
732 is is by virtue of knowing the foundling better than the other
claimant, which is stronger than a mere statement.
733 e person who finds the foundling is not a legal guardian and
may not marry off his charge. e judge (ḥākim) is the legal
guardian.
734 e finder is to investigate regarding the owner of the lost
property by asking people and by announcing it. He may utilise the
facilities of the local police station, public notice boards,
newspapers, gazettes, local television, radio stations, internet and
any other means of publicising it that he deems fit and reasonable
for this purpose.
735 e owner may accept the act of charity and let the finder be.
736 e owner may charge the finder according to the value of the
lost property which the latter has given away in charity.
737 e finder may take a goat, cow or camel which has gone astray
and is at risk from thieves or predatory animals, and protect it
according to the injunctions of this chapter.
738 He leases the camel, for example, to work as a part of a
caravan, transporting luggage or people. e income that is

846
generated from such lease is spent on the camel for food,
maintenance, etc.
739 i.e. outside the Ḥaram of Makkah and the Ḥaram of Madīnah
is known as al-Ḥill. Ed.
740 All positive uses in the favour of the finder are considered
benefits in this case. Availing of the strength of the camel in
carrying luggage and transporting people, etc. is a benefit within
this understanding.
741 is issue explains the legal position of such a person and not
the biological classification.
742 Abū Yūsuf and Muḥammad.
743 If more urine is excreted from either of the two passages, that
respective legal position shall be attributed to the hermaphrodite.
744 e noun khunthā is masculine and so the hermaphrodite is
referred to as ‘he’.
745 In a congregational prayer, the sequence of rows distributed
gender-wise is such that men form the front rows, followed by the
women. In the case of hermaphrodites joining the congregational
prayer, they should form their rows, if there are more than one,
behind the rows of the men but in front of the women.
746 Abū Yūsuf and Muḥammad.
747 Abū Yūsuf and Muḥammad.
748 e boy would normally have received four shares, a half of
which is two shares. A girl would then have received two shares, a
half of which is one share. us, the boy receives his normal four
shares whereas the hermaphrodite receives three shares, two from
the boy’s half and one from the girl’s half.
749 e boy would receive twice as many shares as those of the girl,
therefore, six shares would be an ideal denominator. It is, however,
difficult to establish the share the hermaphrodite would receive if
calculated according to Imam ash-Sha‘bī’s opinion, with regards to
Imam Muḥammad’s preferred method of calculation. We, therefore,
double the shares to twelve, in case the calculation became complex.
From twelve, if we deem the hermaphrodite to be a female, he then
receives four shares with the boy receiving eight. If we deem the

847
hermaphrodite to be a male, then he receives six shares with the boy
also receiving six shares. We amalgamate both cases and derive the
average shares from both cases, which for the boy is seven and for
the hermaphrodite five. (If we had used a total of six shares for this
calculation, the hermaphrodite would receive two and a half shares
and the boy three and a half shares.)
750 With respect to himself, the missing person is considered alive;
his wife does not remarry and his property is not inherited, etc.
With respect to others, he is considered dead in that he does not
receive inheritance from someone deceased and he is not entitled to
the proceeds of a will or a bequest.
751 Scholars and jurists of other schools of Islamic jurisprudence
have declared fewer years of waiting for the missing husband. Some
other Ḥanafī texts also state a significantly lesser waiting period
before the missing person is officially pronounced dead. Al-
Maydānī, in his commentary on the Mukhtaṣar al-Qudūrī called al-
Lubāb fī Sharḥ al-Kitāb, mentions a period of ninety years, whereas
al-Haskafī, in his ad-Durr al-Mukhtār, states four years.
752 ose who are alive.
753 When the inheritance is being distributed.
754 From a distance of one and a half days away would be twenty
dirhams, and likewise, it is calculated relative to the first issue.
755 If the slave is worth twenty-five dirhams and he runs away to a
distance of three days, and is subsequently caught and returned by
A, then A is entitled to a reward of a maximum of twenty-four
dirhams.
756 If the master had placed the slave as collateral in a contract of
pawning with A and he runs away and is subsequently returned, he
is returned to the pledgee and the one returning the slave is
rewarded by the pledgee. If the value of the slave is more than the
loan, the pledgee shall only be liable to pay a maximum of what is
according to the amount of the loan. Any surplus, thereof, is against
the pledgor.
757 Factors which hinder cultivation include the land being
situated in a treacherous location, or surrounded by hostile

848
undergrowth, etc.
758 Imam here is the leader of the Muslims, whether the khalīfah,
an amīr, a king or sulṭān.
759 is is to ensure the revival of that land and to remove its
barrenness. e ownership of barren land is justified by cultivation
or revivification. With respect to this topic, and where such
cultivation or revivification is non-existent, the Imam may appoint
any person for the task.
760 e precincts extend from the centre of the well, similarly to
the radius of a circle.
761 With regards to the issues pertaining to an existing well or
spring that has been acquired by someone in the wilderness, its
precincts belong to the owner of the well or spring. No person is
allowed to dig a well within the precincts owned by someone else.
762 ese two rivers have been mentioned due to the common
understanding of the people of that locality where the author, i.e.
Imam al-Qudūrī, may Allah have mercy on him, lived, otherwise
their reference towards any other river or any other large permanent
mass of moving water is valid.
763 When any river recedes or changes course and exposes the
riverbed where it once flowed.
764 When the receding of the water is temporary.
765 is includes canals, streams, etc.
766 e land, in itself, belongs to another, and the river merely
passes through it.
767 Abū Yūsuf and Muḥammad.
768 e jetty is important for access to the river in the case of
maintenance, cleaning, blocking, etc.
769 is is out of the jurisdiction of the authority enjoyed by him.
770 e ma’dhūn is responsible for his own personal debts, for
which he may be sold to the creditors in lieu of them should he fail
to settle them, unless his master repays the debts on his behalf.
771 If the master of the ma’dhūn revokes the authorisation, the
ma’dhūn remains authorised until the traders in the market become

849
aware of such revocation or interdiction.
772 e authorisation remains intact with regards to whatever is in
the possession of the slave for the purpose of the authorised act or
omission.
773 Abū Yūsuf and Muḥammad.
774 is refers to his bondage with his master, and it reflects his
value.
775 If the slave is burdened by debts to such an extent that they are
more than what he owns and more than he himself, as a slave, is
worth, then the master may not take anything from him. e master
may only take from his slave what is in surplus to the slave’s needs.
776 If the ma’dhūn owns a slave, in this case the master of the
ma’dhūn may not free that slave.
777 Abū Yūsuf and Muḥammad.
778 Surrendering the goods to one’s own slave before taking
payment from him renders the sale void due to the element of debt
in it.
779 Fem: ma’dhūnah.
780 She becomes an umm al-walad, and this status hinders her
from revealing herself in public.
781 Abū Yūsuf and Muḥammad.
782 e chances are that one may be deprived of produce due the
scarcity of such canals and ditches where fruitful crops may grow.
783 If both of them enter into a contract which they later realise
was based on void conditions, then the contract of cropsharing is
deemed invalid. In such a case, the produce shall go entirely to the
provider of the seeds thereof. e labourer is entitled to
remuneration and not to any share of the crops. If he would have
received a share of the produce in any percentage, had the contract
of cropsharing turned out to be valid, the price of which would have
been fifty dirhams, he is paid an amount as remuneration for his
provision of labour, and such amount shall not exceed fifty dirhams.
784 If the crops have not yet ripened, the cultivating partner in the
contract is liable to pay rent for the use of the land until the crops
ripen.

850
785 Abū Yūsuf and Muḥammad.
786 If the fruit has ripened and reached its peak, hence, the tree
ceases to produce more fruit by labour than what is already on it,
any contract of cropsharing through irrigation is void due to its
purposelessness.
787 When the man says, “I have married you,” and the woman
replies, “I have accepted it,” that concludes the marriage.
788 is is an order, and an order, in Arabic, is considered a part of
the future tense.
789 Granddaughter.
790 Nieces from female siblings.
791 Nieces from male siblings.
792 e daughter in this sense refers to his wife as well any of the
daughters of that woman with whom he may have lawfully
consummated marriage.
793 Just as this prohibition applies to two sisters in the same
marriage, so does it to two sisters lawfully owned as slaves (milk
yamīn).
794 is is a hypothetical issue explaining the prohibition of being
married to two women at the same time when if either of the two
was a man, then it would have been forbidden for them to be
married to each other, as in the case of blood siblings, foster
siblings, consanguine and uterine relatives, etc.
795 A, a woman, was married to B, who had a daughter, C, from a
previous wife, Z. B dies, leaving C in the care of A. A marries D. D
may also marry C because there is no legal objection to this
marriage.
796 is is similar to, but not the same as, a decree absolute (final
judgement declaring a marriage dissolved) in civil law.
797 is also includes a revocable divorce (ṭalāq raj‘ī). A revocable
divorce in Islam is similar to, but not the same as, a decree nisi
(provisional or interlocutory judgement granting a conditional
divorce) in civil law.
798 If they set them free, they are able to propose marriage to them
in both cases. Ed.

851
799 Zoroastrians or Parsees. Ed.
800 e term Sabian is applied to two groups: first, followers of one
of the prophets, and second, a group that are devoted to the stars.
Ed.
801 ey may enter into a marriage with each other or with
someone who is not a person in iḥrām, but they may not
consummate the marriage by sexual intercourse due to restrictions
imposed by the iḥrām.
802 Abū Yūsuf and Muḥammad.
803 Abū Yūsuf and Muḥammad.
804 Abū Yūsuf and Muḥammad.
805 Priorities of guardianship are given as those in priority of
inheritance.
806 e guardians of a Muslim woman cannot be any of these
categories of people, irrespective of close consanguine relationship
with her.
807 In such an issue, the absence of male relatives (‘aṣabāt) is a
condition.
808 e nobility of the occupation, sources of financial income,
employment, etc. are to be reckoned in the issue of suitability in
marriage.
809 Mentioning fewer than ten dirhams is invalid, and so, any
number that is mentioned below ten means ‘ten’.
810 Consummation of marriage is by sexual intercourse.
811 Seclusion in this context refers to the husband and wife being
together without the presence of anyone else and that neither of the
two are prevented, whether physically or ritually, from sexual
intercourse with the other.
812 ese are obstacles in the way of performing sexual intercourse,
and therefore, such a seclusion has no validity.
813 A gift of consolation is obligatory for her, unless the divorce is
pronounced according to this issue or at the instance of the wife.
814 If the slave is sold at any time after that, the dowry is a liability
upon him in the form of a debt.

852
815 If, for example, a goat is mentioned without qualification, and
the breed, colour, age, value, etc. are not specified.
816 is occurs when a man marries a woman saying to her that he
has married her for, say, ten days, and he uses the word ‘mut‘ah’ or
any of its variants, with respect to the marriage. In this kind of
marriage, witnesses are not present.
817 is takes place when a man marries a woman for a fixed
duration of time, say ten days or a month, and he uses the word
‘nikāḥ’ or any of its variants, with respect to the marriage. In this
kind of marriage, witnesses are present.
818 It depends upon the consent of that particular man or woman,
as the case may be.
819 is is valid only when the son of the paternal uncle becomes
the guardian of that female minor.
820 is is in the event of the non-payment of the dowry by the
husband.
821 e waiting period (‘iddah) applies in the event of divorce or
widowhood.
822 e customary dowry [a woman of her standing would receive]
is determined according to the dowries of women relatives of the
bride from the father’s side.
823 ey could be from a different financial background where the
dowries which they receive may not match the financial status of her
father’s family.
824 ese are the categories of comparison in determining the
dowry of the bride.
825 When someone is currently married to a free woman, he may
not marry a slave-woman.
826 In comparison with the last issue, when someone is already
married to a slave-woman, he may marry a free woman.
827 e maximum number of women that a free man is allowed to
be married to simultaneously is four.
828 e option is whether to remain in that marriage or not.
829 e marriage is binding upon her.

853
830 e marriage is valid and binding.
831 e man is not able to retract the divorce in order to reclaim
her, even if he regains potency after that, although he would be
allowed to propose marriage to her again.
832 e separation begins after the cessation of the third menstrual
period.
833 e offer of Islam to the husband lasts until the end of the
third menstrual period, at the end of which the couple is separated
in a final divorce.
834 He is not to marry any woman on account of his apostasy.
835 He is Muslim.
836 One of the People of the Book is closer to the natural religion
of Islam than the Magian would be.
837 With respect to the marriage of a non-Muslim, if he marries
according to the rites and rituals of his own religion, which may be
forbidden in Islam, and then the couple convert to Islam, they are
not required to repeal their marriage and remarry; their marriage is
maintained and acknowledged. is case would have seen a
prohibition in Islam due to the issuance of the marriage and its
preconditions whereas its continuity shall not come into question.
838 As against the previous case, the continuity of this marriage
would see a prohibition on account of the forbidden category of
women coming into question.
839 During travel, all wives are treated with equal apportionment,
irrespective of whether one is a slave-woman or a free woman. e
husband may choose whichever of the two he may to travel with
him and there is no 2:1 ratio in this respect.
840 e ruling of suckling is that it prohibits marriage between
those suckled by the same woman, and the quantity of the suckling
is immaterial.
841 Two and a half years.
842 Abū Yūsuf and Muḥammad.
843 Twenty-four months.

854
844 e natural period of suckling has elapsed and whatever
follows is not taken into account.
845 Relationship due to suckling is, legally, the same as blood
relationship, with respect to marriage. e suckling mother, her
daughter, her other breastfed minors, be they her own or not, are
forbidden for the suckled male to marry.
846 If a woman gains milk in her breasts due to a pregnancy caused
by her husband, and she nurses another’s female child with that
milk, the female child is prohibited for marriage to her husband,
due to milk-kinship, and also to his fathers and his sons.
847 When that sister is from different parents.
848 e brother being from the father’s side.
849 e marrying brother is not related to the foster-brother’s sister
in any way whatsoever, be that by blood, by suckling or by marriage
in any form.
850 ey were both breastfed by the same woman.
851 When one is male and the other is female.
852 ey are her foster brothers against whom the rule of
prohibition applies.
853 e ruling is applied to the predominant aspect of the mixture.
854 Abū Yūsuf and Muḥammad.
855 e prohibition derives from the milk, irrespective of the
method of its feeding.
856 e ratio is immaterial.
857 is is an exceptional case, and such-like cases are disregarded
as rare and insignificant. e milk which invites prohibition is the
milk of the woman.
858 e same applies to cow’s milk, camel’s milk, dry powdered
milk, etc. e ruling of prohibition does not to apply to any milk
other than that of a human.
859 is marriage is to a minor girl in the age of breastfeeding. It
was not unusual in many parts of the world, including Europe, for
very small children to be married contractually.

855
860 e relationship of the adult woman with the man becomes
like that of a mother-in-law, and his relationship with that of the
minor girl becomes like that of a foster father, as in the case of ‘sire’s
milk’ (laban al-faḥl).
861 Women alone are not to testify to prove or disprove a case
regarding suckling.

862 e method preferred by the Prophet Muḥammad .

863 e method contrary to the sunnah.
864 Does not take her back nor retract the divorce.
865 In what follows the reader will have to distinguish carefully
between the use of ‘revocable’, ‘fnal’ and ‘irrevocable’. If the man
wishes to take his wife back during her waiting period (‘iddah) he
ordinarily can do so, and this is referred to as a revocable divorce. A
divorce is fnal, for example, when the divorced woman’s waiting
period (‘iddah) expires and in other cases. But in many such cases,
the man may propose marriage to her again and she may accept or
refuse. However, in cases such as three pronouncements of divorce
at one time, or after three pronouncements of divorce on three
separate occasions, she is irrevocably divorced. ey may only
remarry after her marriage to another man, the consummation of
that marriage and a subsequent divorce.
866 is is due to the innovation that he has acted upon.
867 In order to minimise her ‘iddah as much as possible.
868 So that there is no possibility of conception.
869 is refers to non-menstruating women.
870 Keep her as his wife.
871 e express form of pronouncements of divorce produces only
one revocable divorce irrespective of whether he had intended more
than that or he had not even intended a divorce at all.
872 e word used for divorce here is the Arabic noun ‘ṭalāq’, or ‘al-
ṭalāq’. is would generally mean one divorce, but when it is used
for a plural term, as in three pronouncements of divorce, then they
may apply because the definite noun may refer to the whole genus of
an entity, like, ‘the horse’ may refer to one horse or to the whole

856
genus of horses. e noun, when used with the intention of three
pronouncements of divorce, produces all three pronouncements of
divorce because the maximum number of pronouncements of
divorce is three. It will not, however, produce two pronouncements
of divorce with the intention of two because this word does not refer
to two pronouncements of divorce in the literal sense at all.
873 is includes all figurative forms of speech, such as using
metaphors, similes and indications.
874 For one divorce to take effect, the intention for divorce is
sufficient, whereas, for three pronouncements of divorce to take
effect, the intention must include all three.
875 Divorce only takes place when these words are used in a
context of divorce and the married couple know what the other
intends by these words with reference to the divorce itself.
876 Divorce.
877 Insult and abuse are the primary objectives in a heated quarrel
between spouses. If such wordings are used which do not imply
insult or abuse but are directed towards divorce, then divorce takes
effect with such wordings.
878 at which is inseparable from her.
879 Since the mute cannot speak, any form of alternative means
may be applied, which includes writing and all other forms of
effective communication.
880 In this case, the man did not attribute ownership to the house.
881 When the maximum number of pronouncements of divorce
have been exhausted, the previously made condition becomes null
and void.
882 is is when ownership is gained, or regained, as the case may
be.
883 When the husband does not own the house and the wife enters
it, the condition will have been fulfilled but divorce does not take
place.
884 When the menstrual bleeding for that period ceases, her period
is complete.

857
885 at is when one issues all three pronouncements of divorce in
separate instances.
886 When the husband says, “You are divorced once, once, once,”
etc.
887 Abū Yūsuf and Muḥammad.
888 Marriage is a cause of inheritance. e divorce had not become
final before his death and so she still inherits from him.
889 Contrary to the previous case, due to the lapse of the ‘iddah the
divorce is final and she does not inherit.
890 If he says, “You are divorced thrice, except for three,” all three
pronouncements of divorce take effect, as against the previous two
statements mentioned.
891 e marriage is void.
892 When a master marries his slave-woman to his son, and
thereafter, the master dies, the son inherits the slave-woman into his
ownership, thus acquiring ownership of the slave-woman, his wife.
e marriage between the two becomes invalid and separation
occurs.
893 is is approximately fifteen minutes.
894 e bathing not being complete.
895 She may adorn herself as she would for her husband in
preparation for the retraction.
896 Irrevocable divorce.
897 He may not retract the final divorce nor may he remarry her, be
it during the ‘iddah or after its expiry.
898 If an adolescent boy marries the irrevocably divorced woman,
consummates the marriage with her, then divorces her or dies, she is
free to marry her former husband.
899 is is after her husband has irrevocably divorced her.
900 After being divorced, or widowed, by the second husband, and
remarrying the first husband.
901 e two pronouncements of divorce are ignored and the
husband acquires the right of all three pronouncements of divorce

858
again. is also applies to the issuance of one pronouncement of
divorce and three pronouncements of divorce.
902 e time between her divorce by the first husband and the
ending of her ‘iddah after the divorce by her second husband
conforms to her statement.
903 is is a vow of continence.
904 ese statements refer to the performance of sexual intercourse
with her.
905 is is the second final divorce.
906 is is the third and final divorce which is irrevocable.
907 is includes the subsequent divorce, the result of which is to
make her ḥalāl for remarriage to her former husband.
908 After the elapse of four months, if such condition exists, no
divorce will be issued, but the husband will be required to expiate or
atone for his vow if he breaks it, which he is recommended to do.
909 Īlā’ is a minimum of four months duration.
910 His own wife.
911 e marriage remains intact and, therefore, īlā’ is practicable.
e duration of such īlā’ extends the duration of the ‘iddah.
912 Sexual intercourse is not practicable since he cannot retract a
final divorce.
913 is is half that of a free woman.
914 Such statement must be verbal and express, though written and
indicative forms may be admissible according to the nature of the
case and of those involved.
915 Such return must be made within the four month period of īlā’.
Sexual intercourse, nevertheless, leads to a violation of the vow that
must be atoned for and not the verbal proclamation.
916 Recovery from illness includes the removal or vanishing of any
reason or excuse which prevented sexual intercourse, like minority
age, distance, etc.
917 is property, or wealth, is the consideration paid by the wife
to her husband, in exchange for her freedom from him.

859
918 e judge will decide about the husband if he demands more as
consideration than the value of the dowry he had given to her.
919 e husband shall receive nothing due to the invalid
consideration being useless to him as it does not constitute wealth
(māl). e separation in the divorce at the instance of the wife
(khul‘), however, is valid.
920 As against divorce at the instance of the wife (khul‘), the
invalid consideration in divorce renders it revocable.
921 Contrary to the previous case, the word goods (māl) has been
expressly stated by the wife.
922 e word ‘dirhams’ has been used which is plural, and the
plural in Arabic refers to a minimum of three.
923 Abū Yūsuf and Muḥammad.
924 e husband demands a thousand, less than which he will not
accept, and taking less than the three pronouncements amounts to
less than a thousand.
925 is includes kissing, touching, fondling and sexual
intercourse.
926 e opposites are, left hand and right foot, or right hand and
left foot.
927 e umm al-walad is automatically set free on the death of her
owner.
928 e condition for this instalment-based emancipation is that
the person who made the injurious comparison (muẓāhir) does not
resume normal marital affairs prior to the complete emancipation of
the slave, which includes the second half.
929 See previous footnote.
930 In this month, all fasts are obligatory, hence, no expiatory or
supererogatory fasts are permitted.
931 ese are the days in which fasting is prohibited due to their
unique sanctity.
932 is includes an undue breaking of the fast, which invalidates
it, as well as its omission.
933 e two months of expiation.

860
934 If he has fasted a month and a half then misses one day of
fasting, he is required to restart the two months from the first day.
935 is is irrespective of whether he feeds him according to his
requirement only, or whether he gives him that which is enough for
sixty needy people.
936 For any act that is prohibited due to the commission of the
offence of unlawful injurious comparison, such as kissing, touching,
fondling and sexual intercourse.
937 ese qualities are: Muslim, sane, major and free, and not
having been guilty of unsubstantiated accusations of sexual
impropriety.
938 I.e. to swear four oaths that he is truthful and then to call the
curse of Allah on himself if he is lying.
939 e ḥadd punishment is applied to him if he makes an
admission of his own false accusation. e ḥadd punishment for
making unsubstantiated accusations of sexual infidelity (qadhf) is
applied in such a case, and that is eighty lashes.
940 She swears four oaths that he is lying and that the anger of
Allah is on her if he is truthful.
941 e husband.
942 Her acknowledgement of him proves the offence of adultery
(zinā) against her, which makes her punishable with the ḥadd
punishment for adultery.
943 e husband is eternally prohibited to remarry her.
944 When the husband refuses to accept paternity of the child,
such a refusal is an accusation of adultery against his own wife. e
judge legally severs all ties between the child and the husband of its
mother, and he surrenders the child into the custody of its mother
alone.
945 When he goes back on the accusation of adultery which he had
made against his wife.
946 is applies when the fact of the pregnancy is not established
by way of factual scientific evidence, otherwise, the following issue is
to be borne in mind.
947 is is forty days.

861
948 Due to his unsubstantiated accusation of adultery against his
wife.
949 Give birth to the baby.
950 A half of that of the free woman.
951 When Mr. A divorces Mrs. A, and the former then dies soon
afterwards, Mrs. A inherits Mr. A and her ‘iddah is the longer of
the two periods, that is, the period of four months and ten days, or
the period of three menstrual cycles.
952 Knowledge of her ‘iddah is not a requirement for it to be valid,
hence, if the ‘iddah passes without her knowledge of it, it officially is
deemed to have passed, as it would have in the cases of the divorcée
or widow who do have such knowledge.
953 If both spouses of an invalid marriage are separated, such
separation amounts to divorce, and the woman begins her ‘iddah at
the instant of separation. If, however, they are not separated, but the
husband resolves not to have sexual intercourse with her any longer,
the ‘iddah of the wife begins, in this case, at the instant of the
resolve.
954 is includes the condition of sanity.
955 Mourning is incumbent.
956 All modes of beautification are to be avoided, such as make-up,
prettified clothing and jewellery, etc.
957 ...or death of the husband.
958 When the other heirs do not help her by providing her with
portions from their own shares.
959 She is to observe the ‘iddah from the beginning.
960 e establishment of the paternity refers to its descent from
the husband of its mother, unless otherwise stated.
961 e child must be born within two years from the death of the
husband of its mother.
962 e child being born more than ten months after the
beginning of the ‘iddah.
963 Ample proof is required to link the paternity of a child to its
bona fide father when the child is born after its mother has been

862
widowed or divorced. Visible signs of pregnancy, quorum of
testimony and confession are the methods that may be employed in
such a case.
964 If the pregnancy is evident then the testimony of witnesses is
not required.
965 If, in the case of divorce, the husband acknowledges the
paternity of the child, and in the case of the death of the husband,
the deceased husband’s heirs acknowledge the same.
966 at is when the wife had told the woman of the conception
resulting from sexual intercourse with her husband.
967 She is free to act according to the procedures and regulations as
set out within her own religion.
968 e widow is not entitled to maintenance due to the
inheritance that she will receive.
969 For example, when she indulges in adultery, or she leaves the
fold of Islam, etc.
970 It is immaterial whether the divorce is of a revocable or of an
irrevocable nature.
971 is refers to sexual enticement and seduction as well as
physical empowerment and control.
972 She may borrow money or take goods on his account and he is
liable for their repayment.
973 If the husband was poor, and he was paying her fifty dirhams
per week as maintenance, and now he has become wealthy, the
woman may dispute this with him and the judge subsequently raises
her maintenance payment from fifty dirhams per week to whatever
amount he sees fit regarding the current improved financial
circumstances of the man and the current essential requirements of
the wife.
974 If the husband does not pay the maintenance for a period of
time, the judge may prescribe it for her, or she makes an agreement
with the husband regarding its current amount, and the judge
subsequently adjudicates the past payments with respect to the
amount agreed upon between the spouses.

863
975 If the husband paid her for twelve months in advance and he
died after eight months, she is to repay for the four months that
remain.
976 e wet nurse.
977 e husband is only obliged to pay the amount that was agreed
upon between the two and any further demand need not be
entertained.
978 Full maternal aunts (the mother’s full sisters) have more right
than the mother’s uterine sister, followed by the mother’s
consanguine sister.
979 e priority of custodianship is determined in the same
manner as that of the sisters and the aunts. Full paternal uncles (the
father’s full brothers) have more right than the father’s uterine
brother, followed by the father’s consanguine brother.
980 e setting free of the slave-woman and the mother of her
master’s child (umm al-walad) renders both of them free women in
matters pertaining to the custody of the respective child.
981 is includes all physically and mentally disabled persons who
are unable to earn a living for themselves.
982 Manumitting slaves.
983 ese words or statements are generally used for emancipation
and manumission, therefore, the intention is immaterial.
984 For example, if the master is black but the slave is caucasian.
985 One may not own an un-marriageable relative (dhū raḥm
maḥram) as a slave.
986 If the master frees a quarter of his own slave saying, “You are
25% free,” the slave now belongs to his master at 75% of his original
self. He shall work for that value of his.
987 Abū Yūsuf and Muḥammad.
988 When each states that the other has set his share of the slave
free.
989 Abū Yūsuf and Muḥammad.
990 Where the master is the father.
991 Where the slave is the father.

864
992 Transfer of ownership of the slave is not allowed either.
993 If the master leaves behind three thousand dirhams worth of
property as inheritance, and the slave is worth less than one
thousand dirhams, which is one-third of the total value of the
property, he is free. If he is worth more than one thousand dirhams,
then whatever of excess he is worth over the third, he works for that
amount and pays it to the heirs before he may be set free.
994 If the master leaves behind nothing as inheritance other than
the slave, the slave works for the amount of two-thirds of his own
value and pays it to the heirs before he may be set free.
995 He may not give her away either.
996 e acknowledgement of the first child.
997 Unlike the slave who is to be set free on the death of his master
(mudabbar) who is set free from the third of the property if it can be
extracted from it, the mother of the master’s child (umm al-walad)
is set free irrespective of the amount of the inheritance left behind
by the master. If she was the sole property of the master, and thus,
the only inheritance, she is, nevertheless, set free.
998 e compensatory dowry (‘uqr) is what is paid to a woman in
place of a dowry when sexual intercourse has been had with her due
to some ambiguity.
999 Neither receives from the other.
1000 Half from each partner.
1001 Upon his death, whatever the son leaves behind as
inheritance, the inheritance share of one father is divided between
the partners.
1002 e contract, or act of entering the contract, is known as
kitābah.
1003 e feminine for mukātab is mukātabah.
1004 e offer of the contract of kitābah, i.e. the contract to
purchase his own freedom, is made by the master to his slave, or
slave-woman, with the consideration of payment of anything with
financial value from the slave or slave-woman to the master, in order
to secure his or her freedom. e contract is concluded with the

865
acceptance of the offer by the slave or the slave-woman, as the case
may be.
1005 e master rendering anyone into a slave who has contracted
to purchase his freedom (mukātab) refers to him entering into a
contract of kitābah with that slave or slave-woman.
1006 e slave who contracts to purchase his or her freedom is
treated as a free person, so that crimes against their person are
subject to judicial retaliation or compensatory payment.
1007 e master is irrelevant with regards to the property of his
slave and slave-woman who have contracted to purchase their
freedom, hence the repayment of its value to them.
1008 ose dhū raḥm maḥram relatives who have no relationship of
birth to one include siblings, siblings of parents, children of siblings
etc, whereas those who do have a relationship of birth include
parents, grandparents – howsoever high, and children,
grandchildren – howsoever low.
1009 He is legally declared free just before his death took place.
1010 Initially, his property is used to dispose of the debts that have
accrued on him, including the amount that he owes his master due
to the contract to purchase his freedom. en whatever remains is
distributed amongst his heirs as inheritance.
1011 e slave who has contracted to purchase his freedom
(mukātab), though set free, must work for the value of whatever he
has given in consideration of the contract and he is to surrender that
to the master. Whatever amount he pays to the master must not fall
below the value of the article which he has surrendered.
1012 Both slaves must agree to this offer of contract, otherwise it is
not binding.
1013 e amount of one thousand dirhams is due from both of the
slaves who have contracted to purchase their freedom jointly; if one
pays all of it, or both of them pay equal or unequal amounts, it
suffices.
1014 e umm al-walad becomes free on the death of her master in
any case.

866
1015 Walā’ involves the master becoming one of the heirs of the
slave, and standing responsibility for any compensatory payments he
might become due for causing damage, injury or even homicide.

867
1016 Walā’ includes the master becoming an heir of the former
slave and being responsible for compensatory payments he might
incur for damage, injury or homocide.
1017 e inheritance of the freed slave is to be divided amongst his
male consanguine relatives.
1018 In the absence of ‘aṣabah, the inheritance of the freed slave
goes to the one who freed him.
1019 Related to each other as uncle and nephews/nieces.
1020 e master (mawlā) here can also be the man with whom the
treaty of clientage (walā’) has been made in the previous paragraph.
1021 Standing legal responsibility denotes practical liability for the
slave, or the freed slave or the man who accepted Islam and
voluntarily entered into a contract of clientage.
1022 As mentioned above, the treaty of clientage can only be made
between the master who sets the slave free and his slave, and
between the man who accepts Islam and takes the person who
accepted him into Islam as his master (mawlā). But this paragraph
refers to the first instance of the freed slave.
1023 Like the parts of the human body, etc. All weapons or
potential weapons are those instruments that would normally cause
the death of a person.
1024 Abū Yūsuf and Muḥammad.
1025 See Chapter of Ma‘āqil – Payers of Diyāt/e Legally
Responsible Group. e ‘āqilah are the body of male paternal
relatives (agnates) who are legally responsible with the killer to pay
the compensation. In certain circumstances it includes the men of
the dīwān register of soldiers.
1026 is includes mentally or physically disabled.
1027 A, the father of B kills his own father-in-law, who is the
maternal grandfather of B. e mother of B dies and so B inherits
the right of retaliation against his own father, A. is right of
retaliation is automatically waived due to fatherly sanctity; the son
cannot exact retaliation against his own father.
1028 is is irrespective of the instrument of offence and the
manner and the method of the offence committed, but some

868
scholars take the position that contemporary means of exacting
retaliation are justified with regards to the objective sought.
1029 i.e. because he is still a slave and the master has the right of
retaliation.
1030 Both, the pledgor and the pledgee must be present in person
as well as give legal consent in order to carry out the necessary
directives.
1031 e word ‘ṣāḥib al-firāsh’ can be used for one who is
bedridden or crippled due to an injury or illness which is potentially
fatal.
1032 is is the cartilage of the septum.
1033 Whoever amputates or severs either of these parts of another,
the same amputation is carried out against him in that respective
part, e.g. a hand for a hand, a foot for a foot, an ear for an ear, etc.
1034 is includes glass.
1035 e term quasi-intentional (shibh al-‘amd) is only to be
applied when a loss of life occurs. In injuries, this term does not
apply, and an injury may either be intentional or unintentional but
not quasi-intentional.
1036 e victim of criminal amputation.
1037 e offender.
1038 One reason may be that the head of the victim may be
relatively smaller than that of the offender, and so a wound of
similar size would not reach from one side to the other.
1039 e glans penis.
1040 e offender can only be killed once, and there is no question
of compounding or negotiation.
1041 e first man is treated as a victim of intentional homicide
(qatl al-‘amd) and the second is treated as a victim of unintentional
homicide (qatl al-khaṭa’).
1042 e expiation for unintentional homicide is to free a believing
slave or, if unable, to fast two consecutive months (Sūrat an-Nisā’
4:92).
1043 Abū Yūsuf and Muḥammad.

869
1044 A set of clothing is ordinarily an izār, a waist-wrapper
garment for the lower half of the body, and a ridā’ or outer wrap for
the upper half of the body. Ed.
1045 e value of a Muslim and of a non-Muslim living under
Muslim governance (dhimmī), is the same with regards to offences
committed against his life or against his body.
1046 ey are to be treated as organs of which there is only one if
the offence extends to both of them.
1047 If the offence has only affected one of the pair, then there is
payment of a half of the compensatory payment (diyah).
1048 ese are the phalanges of the fingers and thumbs.
1049 e thumbs.
1050 is also includes the canines.
1051 Someone who is a just and knowledgeable person of an
upright and noble character.
1052 A twentieth, or five percent, of the [full] compensatory
payment.
1053 is amounts to a total of fifteen percent.
1054 One from either side.
1055 e indemnity of mūḍiḥah is not a full diyah, but when its
impact results in the permanent hair loss of the victim, or the loss of
his intellect, the compensatory particular shall be a full diyah
because the loss of intellect could render the limbs useless.
1056 is compensatory payment (diyah) is for the senses of
hearing, sight and speech, as the case may be, as against the previous
issue where a full compensatory payment applies.
1057 It is not from the responsible group (‘āqilah).
1058 is is the maximum time limit given.
1059 is is when both are intended to be within the walls of the
property.
1060 If such is undertaken in the private property of another
person.
1061 If the slave is worth one thousand dirhams and the
compensation (arsh) for the offence committed is eight hundred

870
dirhams, the master is liable to pay the lesser, which is eight
hundred dirhams. Similarly, if the compensation for the offence
committed is twelve hundred dirhams, then the master is liable to
pay one thousand dirhams, which is the value of the slave and the
lesser amount of the two.
1062 is includes two pedestrians, drivers, cyclists, etc. colliding
with one another.
1063 9990 dirhams.
1064 4990 dirhams.
1065 4995 dirhams.
1066 is includes any legally responsible person.
1067 One twentieth, or five percent.
1068 In this case, though the offender is absolved of any liability
towards the stillborn, he is, however, liable to pay the compensatory
payment (diyah) for causing the death of the woman.
1069 e compensation, i.e. ghurrah, is paid to the inheritors of the
foetus.
1070 One twentieth, or five percent.
1071 e people of the locality are required to make compensatory
payment (diyah).
1072 ese are the categories of people from whom the oath is not
taken.
1073 Of wrongful death, like killing.
1074 If landlords are available, and they live in the locality, then
they take part in the qasāmah and not the tenants.
1075 Not people who bought those lands from the ahl al-khiṭṭah.
1076 e word ‘Euphrates’ here is purely hypothetical and includes
any river, canal, stream, natural or artificial.
1077 is excludes the compensatory payment (diyah) to be paid
due to compounding or negotiated settlement, etc.
1078 is applies to military personnel only.
1079 e dāniq, also pronounced dānaq, is a sixth of a dirham. Ed.
1080 He pays an amount equal to whatever each of the others pay.

871
1081 is is the free man who has accepted Islam and who takes
the person from whom he accepted Islam as his mawlā.
1082 One twentieth, or five percent.
1083 If the total liability is less than the value of five percent of a
full compensatory payment, it is taken from the property of the
offender and the legally responsible group are not obliged in any
way.
1084 If they all agree to its payment.
1085 ese limits are those fixed in the revealed Islamic legal texts.
1086 e term zinā denotes all categories of sexual misconduct
such as fornication, adultery and rape i.e. the rape of the offender,
not that of his victim.
1087 It is legally proven, and thereby established, by either of the
two methods.
1088 is is the quorum that must be satisfied in order to establish
legal evidence of zinā.
1089 e witnesses are to be investigated regarding their
reputation, their moral and social stature as well as their mental
stability, etc., in their private as well as in their public lives, thus to
ensure the strength of their evidence.
1090 e confession is to be made four times, in four separate
sessions, each session being held specifically for the confession of
the offence of unlawful sexual intercourse.
1091 e muḥṣan is someone, male or female (muḥṣanah), who is
married or has been married at some point, in a marriage that was
consummated. Ed.
1092 e funeral prayer is performed over him.
1093 e punishment and its procedure is the same for men and
women.
1094 e woman is to remain clothed but the fur and padding in
her garments, if any, are removed so that the impact of the strokes is
not diminished.
1095 e ditch, or trench, may be up to chest height.

872
1096 All four witnesses are subjected to the ḥadd punishment
because the required number of witnesses has not been reached, and
therefore, this amounts to unsubstantiated accusations of unlawful
sexual intercourse.
1097 See previous footnote.
1098 ese are the qualifications of a muḥṣan with respect to the
offence of unlawful sexual intercourse. e qualifications of a
muḥṣanah are the same.
1099 Only one form of punishment or the other will be applied.
1100 at is when he is muḥṣan.
1101 Delivers means that she delivers the baby, aborts it or
miscarries it, each resulting in her losing her status as somone who
is pregnant.
1102 e ḥadd punishment may be applied to her when she is in
her postnatal bleeding period.
1103 Lashing is delayed.
1104 ey were close enough and possessed the capacity to testify
before the leader (Imam).
1105 is exception stands due to the rights of the people (huqūq
al-‘ibād) being of immediate concern.
1106 Ta‘zīr is a discretionary punishment for an offence for which
there is no ḥadd punishment, the purpose of which is to disgrace the
offender for what he has done. It is not explicitly defined in the
Qur’ān or the Sunnah, but defined by juristic deduction from
Islamic evidence. In the Ḥanafī school it may not exceed a half of
the ḥadd punishment.
1107 is is according to Abū Ḥanīfah, may Allah have mercy on
him. According to Abū Yūsuf and Muḥammad, may Allah have
mercy on them, he is subject to the ḥadd punishment.
1108 Fellatio, cunnilingus and sodomy/anal intercourse.
1109 Homosexual sodomy.
1110 Abū Yūsuf and Muḥammad.
1111 Bestiality.
1112 e territory of those who rebel against the lawful ruler.

873
1113 e offender should be in the state of intoxication to qualify
for the ḥadd punishment.
1114 One charged with the willful consumption of wine or any
other alcoholic or intoxicating substance is not punished whilst he,
or she, is under the influence of that substance. e punishment
may only be carried out after the effects of the substance have worn
off.
1115 Who accuses another of unlawful sexual intercourse without
substantiation.
1116 Iḥṣān in the case of the person to be stoned to death in the
case of unlawful sexual intercourse and iḥṣān with respect to the
character of the person against whom unsubstantiated accusations of
unlawful sexual intercourse are made, share the first four points.
1117 Someone directly affected by such an allegation has the right
to demand the ḥadd punishment for unsubstantiated accusations of
unlawful sexual intercourse made against someone who is dead, such
as the child of the deceased father or mother.
1118 Mā’ as-Samā’ was a woman who was the progenitor of a
Yemeni tribe. e point being that the slanderer insinuated that the
Arab was not descended from whom he claimed. Ed.
1119 If the woman has been accused of unlawful sexual intercourse
because she has given birth to a child not belonging to her husband,
then in such a case her accuser is not subjected to the ḥadd
punishment, and likewise, if she bears a child whilst not being
married.
1120 is is for all present and future legal proceedings, where his
testimony will never be accepted.
1121 Contrary to the previous case, this is a new beginning for the
new Muslim whose previous sins have been forgiven because of his
acceptance of Islam.
1122 Maḍrūbah: that which is in the form of minted coinage. It
refers to any form of money, be it coins, paper or otherwise.
1123 is refers to the ruling being obligatory.
1124 is includes decoration with gold, silver and gems on it.

874
1125 is includes all games of chance and those wherein dice and
playing cards, are used.
1126 Files of genuine value that could be the subject of the ḥadd
punishment of amputation include all files of personal and sensitive
data from whose theft the aggrieved individual, or group, could
suffer financial loss. It is possible that ‘identity theft’ would be
included under this ruling.
1127 If A steals some property from B in which A himself has a
share, A is not subject to amputation.
1128 In such a case, the offender is imprisoned.
1129 e alteration occurs when the woven thread is woven into a
garment, cloth or other form of material.
1130 Lit: cut or intercept the path.
1131 Alternate hands and feet are the right hand and the left foot.
1132 ey are subjected to the ḥadd punishment for the crime of
murder.
1133 e heirs of the victim have no right to award the culprits
forgiveness due to this act of banditry being contravention of a right
of Allah rather than a right of people.
1134 is is because a ḥadd punishment of this nature cannot be
applied to a minor, someone who is insane or an un-marriageable
relative (dhū raḥm maḥram) of the victim.
1135 is is a collective punishment due to the collective nature of
their crime.
1136 is is the process whereby the juice, mixed with other
ingredients, causes a chemical reaction to produce wine or other
alcoholic drinks.
1137 During the process of fermentation, the wine is stored at
temperatures between 60 and 90 degrees Fahrenheit (16-32
Centigrade) for red wine and 50 to 60 degrees Fahrenheit (10-16
Centigrade) for white wine. At this point, it froths vigorously,
producing alcohol from the sugar and giving off a distinct odour.
1138 Without involving cooking, boiling or other forms of
manipulation.

875
1139 Boiling or cooking juice until most of it has evaporated and
one-third or less of it remains renders it lawful, but if more than
two-thirds remains it is not lawful.
1140 is is when it ferments and bubbles.
1141 When the mead (nabīdh) of dates and raisins is partly-
cooked, even to a boil, but not completely fermented or producing
an intoxicating beverage, and one drinks from it without intending
to derive amusement or pleasure from it, thinking that it will not
intoxicate, then such mead is permissible.
1142 is is subject to neither of the drinks being an intoxicant.
1143 Durra – dhurah – is a type of sorghum or millet.
1144 Cooking is when the pot comes to a boil.
1145 is includes any large feline predator which is trained for
hunting purposes.
1146 When the dog has hunted three times and each time it has
refrained from eating anything of its kill.
1147 If the game dies whilst the hunter could have slaughtered it, it
is not lawful for consumption.
1148 ese situations are not to do with shooting the animal but
the death of the animal caused by drowning or falling from a height.
Ed.
1149 is is like killing an animal by hitting it with a stick, or
bludgeoning an animal with a large blunt object.
1150 is is subject to lawful slaughter.
1151 is includes bullets, stones and other missiles which do not
cut through the animal making an incision, like a knife, blade or
arrowhead would, but rather push through the object.
1152 When two-thirds of the hunted animal is connected to the
posterior and a third or less is connected to the head.
1153 Contrary to the previous issue, the larger portion being the
portion attached to the head is lawful but not the whole animal.
1154 It would be taken out of the boundary of prohibition and
rendered lawfully edible if it was injured to such an extent that it
died of the wound, otherwise its death would be considered one of

876
natural causes, which would consequently prohibit it for human
consumption.
1155 From a legal stance, such a hunted animal is not legally edible
when the first hunter had enfeebled it and could have slaughtered it,
thereby rendering it lawful. e second hunter, in this case, has
destroyed the lawful edible nature of the game by his firing the
arrow and killing it when the first hunter had already weakened it.
1156 If the game was worth one hundred dirhams, and the second
hunter had shot the arrow wounding it in such a way that its value
has diminished twenty dirhams, the latter pays the former eighty
dirhams.
1157 e animal slaughtered by a person of the People of the Book
(kitābī) is only sought if one slaughtered by a Muslim is not
available.
1158 It is treated as carrion and is not lawfully consumable.
1159 Med: pharynx.
1160 Med: clavicle.
1161 Med: trachea.
1162 Med: oesophagus.
1163 ey are the interior jugular vein and the exterior jugular vein.
1164 Abū Yūsuf and Muḥammad.
1165 ese are teeth and nails that are yet unsevered and physically
attached to a body.
1166 is is one that has been domesticated.
1167 is is when the livestock animal has been released or has
escaped into the wild. If the animal is pierced by an arrow or
stabbed or wounded by a blade and bleeds to death it is lawful to
eat.
1168 Naḥr is to stab into the jugular vein of an animal, e.g. the
camel. Ed.
1169 is includes the jackdaw; it is not a bird of prey, does not eat
filth but relies on vegetation.
1170 is includes the carrion crow, which is a bird of prey. e
raven, rook, carrion crow, hooded crow and magpie are all

877
carnivorous, and all eat carrion, so are comprised under the term
‘speckled crow’.
1171 is is due to its sanctity.
1172 is is due to its unclean nature, i.e. it is najis.
1173 ‘Īd al-Adḥā, the tenth day of Dhu’l-Ḥijjah.
1174 anī: a five-year old camel, two-year old bovine animal or
one-year old sheep or goat.
1175 Jadha‘: a lamb of six months and over. In this case, it is a
condition that such a lamb be physically large enough not to
resemble that which is younger than six months.
1176 i.e. one should donate at least a third of the meat.
1177 In this example, the Divine name terminates with a kasrah
vowel “Allāhi” indicating the oath.
1178 e slave may be Muslim, non-Muslim, male, female, major
or minor.
1179 at is a half ṣā‘ of wheat, one ṣā‘ of dates, one ṣā‘ of barley or
the value thereof, for each destitute person.
1180 e breach of the oath must take place before one may be
rendered guilty and thereby required to pay the penalty. e
advancement of the penalty, irrespective of its form or method, is
not acceptable as it holds no expiatory value.
1181 ough the oath has been made, the purpose of the oath is
illegal and/or immoral, and he must not carry it out. His inability to
carry out his oath places him in direct violation of it, for which he
must pay expiation.
1182 A house (dār) in this regard is one built of walls, ceiling, etc.
1183 In contrast to the previous issue, a home (bayt) differs from a
house where the latter is a purpose built dwelling, irrespective of
whether it is inhabited or not, whereas a home is one that is
inhabited, be it made of mortar and bricks, of wood, of boxes, of
rags, of leaves or of anything that may or may not serve the purpose
of an abode.
1184 He swears not to drink from the ‘Tigris’.
1185 He swears not to drink from the ‘water’ of the Tigris.

878
1186 e transfer, removal or death of the governor releases the
ḥālif from his oath and he is not liable to the succeeding governor.
1187 As in the previous issue, it does not include the onions,
potatoes, etc. of the complete dish.
1188 Rice bread is not customarily eaten in Iraq.
1189 Anything upon the bed which does not alter the basic
condition of the bed itself may fall under this case, such as an extra
mattress over the original mattress, an extra duvet, bedspreads,
throws, under-blankets, over-blankets, an electric underlay, etc.
1190 e bed on top is not the same bed as the one in the oath.
1191 Irrespective of whatever his oath may be, the words ‘in shā’
Allāh’ revoke the oath if said together with, and as part of, the oath.
1192 Capacity refers to someone’s possibility of travel, its
affordability financially, the risk involved, safety and time-keeping.
1193 Seven days.
1194 It may also be called ‘tea’, and if a major meal, ‘dinner’.
1195 In the near future.
1196 He must repay the debt within the space of one month.
1197 He may take longer than a month to repay the debt.
1198 ese are acts that are humanly impossible, i.e. which cannot
be accomplished.
1199 Today.
1200 is is when he vows not to take repayment of the debt owed
him by another in dirhams separately, or in instalments.
1201 A repays his debt to B, which is twenty kg of rice, in two
separate bags of seven kg and thirteen kg each. B weighs both bags
separately and does not do anything else between the two
weighings. is is considered as one lump sum without separation.
e weighings may exceed two, and so long as the person
swearing the oath does not perform any act between any of the
weighings, the transaction is considered to be a single one and there
is no violation of the oath thereby.
1202 If the defendant refuses to take the oath, the plaintiff is not
asked to take it.

879
1203 When someone claims to own land that is in his possession
but does not provide sufficient evidence about his ownership, such
insufficient evidence is not admissible.
1204 When A claims to have married a woman and she refuses to
acknowledge it, or vice versa.
1205 When the husband issues a revocable divorce, and after the
lapse of the divorcée’s ‘iddah, he claims to have revoked the divorce
within the ‘iddah, but she denies it, or vice versa.
1206 When A, the man who had vowed to abstain from sexual
intercourse with his wife for a period of four months or more (mūlī)
claims to have revoked the vow of īlā’ within its term and his wife
denies it, or vice versa.
1207 When A claims an unknown person to be his slave and the
latter denies it.
1208 When a slave-woman claims to be the umm al-walad of A,
and that such-and-such a child of hers is from him, and A denies it.
1209 When A claims to be the father of B and B denies it.
1210 When A claims to have clientage (walā’) over B and the latter
denies it.
1211 When A accuses B of violating an injunction culpable under
ḥudūd laws.
1212 When B, the wife of A, alleges that A has accused her of an
act, the accusation of which may be dealt with under li‘ān, and A
denies it.
1213 Imams Abū Yūsuf and Muḥammad.
1214 e item is divided equally between the two parties in a
reasonable manner.
1215 He may sell his own half share of the slave to the other party
or buy the other party’s half share.
1216 If he gives them co-ownership, a half each.
1217 is is the date of purchase or of ownership acquired
otherwise.
1218 e party which claims to have bought the slave on the earlier
date of the two has a greater right to his ownership.

880
1219 e slave, i.e. that he was given to her as dowry.
1220 In contrast to the previous cases, this one deals with two
claimants to the ownership of one and the same object, with neither
of them having possession. If both claimants furnish evidence of its
ownership together with their respective dates of acquiring that
object then the claimant with the earlier date has more legal right to
it.
1221 e item is half and half between them both.
1222 e word used here is nitāj (produce) which refers to an
animal’s offspring.
1223 It takes place only once, such as the birth of offspring, the
weaving of yarn, the growing of a certain crop at a certain time, etc.
In cases like these, the person who has possession has a legitimate
right to retain possession and, with that, ownership of the object in
question.
1224 e phrase used is tahātur al-bayyināt (mutual contradiction
of evidence) which is a legal term in Islamic Law, similar to
‘rebuttal’ in Common Law, whereby the two pieces of evidence
cancel each other out.
1225 e possessor retains possession and acquires ownership.
1226 e quantum of testimony in such cases is two male
witnesses, or one male witness with two female witnesses; any
number of witnesses in excess of these has no legal effect upon the
weight of the evidence.
1227 e.g. for bodily harm.
1228 See Chapter of Kafālah – Surety.
1229 e same person from whom the plaintiff had purchased the
item.
1230 i.e. the person made to swear the oath is not required to do so
on pain of divorcing his wife or freeing a slave.
1231 Like Friday, the month of Ramadan, etc.
1232 Like within the Sanctuary of Makkah, inside a masjid, etc.
1233 Abū Yūsuf and Muḥammad.

881
1234 Two-thirds for the one who claims the whole building and a
third share for the one who claims a half.
1235 Immediate payment or on credit.
1236 When the buyer claims to have bought the goods upon
stipulation that he has the option of cancellation and the seller
denies that.
1237 When the buyer claims to have paid a portion of the total
price and the seller denies it.
1238 After the buyer has taken possession of it.
1239 Whilst in the possession of the buyer.
1240 e living slave is returned to the seller and the price of the
perished slave is paid to the seller by the buyer according to the
amount agreed by the latter.
1241 She is entitled to the customary dowry [a woman of her
standing would receive].
1242 e hireling and the employer.
1243 e contract of lease (ijārah) is rescinded by the repayments.
For example, A, the employer, asks B, the hireling, to build a house
for him. A claims to have agreed to pay 50,000 dirhams for the
construction work, whereas B claims that the agreement was made
for 70,000 dirhams. If the work has yet not begun, then both parties
are made to swear oaths and mutually rescind the contract. All
equipment is returned to the original provider, and any advance
payment, if made, is returned.
1244 e employer takes an oath in order for his statement to be
reliable. Contrary to the previous issue, after the completion of the
house, the claim of A, with his oath, is weightier.
1245 e statement of the slave who has contracted to buy his
freedom, together with his oath, is the more reliable statement of
the two.
1246 Abū Yūsuf and Muḥammad.
1247 A, the wife of B dies, and the heirs of A dispute with B with
regards to the inheritance of the household goods. e heirs of A
are entitled to those household goods which are exclusively of use to

882
women. B may retain all household goods which are exclusively of
use to men and also those that are of use to both men and women.
1248 Or her heirs, as the case may be.
1249 Or his heirs, as the case may be.
1250 A, the seller of the slave-woman, claims to be the father of
her child whom she bore between six months and two years after her
sale to B the new master; the claim of A is void. It is an exception to
this case if B verifies that he himself has had no sexual contact with
the slave-woman and that the father of the child is in fact A.
1251 Abū Yūsuf and Muḥammad.
1252 e seller takes possession of the child, and therefore is liable
to return the share of the child only.
1253 at is, if the paternity of either twin is established, then both
twins are his.
1254 ese include defamation, theft, intoxication, etc.
1255 e testimony of two women is better, but one is also
acceptable.
1256 e qualification for one to be a credible witness in the court.
1257 Such as, “I testify…,” or “I bear witness….”
1258 e credibility and legal qualifications of the witness is
verified and proven before he is allowed to testify in such cases.
1259 e ruling of testimony is established when the witness is
permitted to testify.
1260 Whatever is in question.
1261 is may include any piece of writing, handwritten or
otherwise, from signatures, letters, notes or mere scribbles.
1262 Testimony is based on memory and not written records. e
written record is acceptable only if it has not changed hands and
remains in the possession of the original issuer at all times so as to
dispel all doubts of its possible editing.
1263 Someone who intentionally remains intoxicated for sheer fun
and amusement.
1264 Such as pigeon-racing, fighting cockerels, quails and grouse.
Other forms of non-beneficial sports involving animals or other

883
things may be comprised in this category.
1265 Public baths, swimming pools, spas and springs are all
included.
1266 All acts of gambling are included. Betting on the outcome of
sporting events and games, casino-based and internet-based
gambling are also forbidden.
1267 ey are those who do not follow the beliefs of the Ahl as-
Sunnah. ese include the Jabariyyah, the Qadariyyah, the
Rawāfiḍah (Shī‘ah), the Khawārij, the Mu‘aṭṭilah and the
Mushabbihah.
1268 A sub-sect of the Rawāfiḍah.
1269 Because of the discrepancy between their evidence. Ed.
1270 i.e. that they agree on one thousand but do not agree on two
thousand, so the lesser sum is accepted. Ed.
1271 Having decided upon the first testimony, the second
testimony is not entertained.
1272 As an exception to the case in question, this refers to rights of
the Creator (ḥuqūq Allāh) and rights of the creation (ḥuqūq
al-‘ibād). A claim by the defendant of disparagement or negation of
the plaintiff ’s witnesses will not stand unless it refers to the
infringement of a right against the creation or against Allah and
not of a mere wrong committed by the witness against oneself.
1273 He is the witness to the original event in question and has
firsthand knowledge of what occurred.
1274 He is the witness to the testimony of the witness of the
source.
1275 e shuhūd al-aṣl – the judge investigates their character and
other relevant aspects pertaining to their testimony in the pending
litigation.
1276 Abū Yūsuf and Muḥammad.
1277 e word used is mashhūd ‘alayhi, meaning the person against
whom testimony is made.
1278 e non-retracting witness is not liable for anything.

884
1279 at would make two witnesses out of three retracting their
testimony together.
1280 e minimum quantum of witnesses is still intact – one man
and two women.
1281 A ninth woman.
1282 e remainder of the witnesses are one man and one woman.
e two women correspond to one man, so that the right divides in
two halves, one for the man and one for the two women. e
retracting women are thus together liable for one-quarter.
1283 Abū Yūsuf and Muḥammad.
1284 is is the remainder of the amount less than the customary
dowry (mahr al-mithl).
1285 is is the reasonable value of the respective item.
1286 at the husband divorced her after consummation of the
marriage.
1287 e quality of being muḥṣan, i.e. being, or having been,
married and having consummated the marriage.
1288 If it is established that one or both of those engaged in
unlawful sexual intercourse was married or had been married, and
the unlawful sexual intercourse was witnessed by four acceptable
witnesses then the sentence is stoning. If the testimony that one or
both of those engaged in unlawful sexual intercourse was married or
had been married is withdrawn then the sentence becomes flogging.
1289 A muzakkī is someone who declares another worthy to be a
witness. See below.
1290 Tazkiyat ash-shuhūd – verification that the said persons are
worthy to be witnesses.
1291 If the person retracts his testimony, after declaring a witness
to be honest and acceptable to testify in the court, he is held liable
for the relevant actions and its consequences.
1292 A and B, two witnesses, testify that Z swore an oath that his
wife Y would be divorced if she did a particular act. C and D, two
other witnesses, testify that Y did do that particular act.
Consequently, Y is divorced. later, all the witnesses, A, B, C, and D
retract their respective testimonies. Only A and B have any liability.

885
1293 ey are: sanity, being adult, freedom, being Muslim, being
honest and just (‘adālah), and not being deaf, mute, blind or
convicted of making unsubstantiated allegations of illegal sexual
intercourse (qadhf).
1294 e mujtahid exerts his intellect according to the uṣūl
(principles) of his madhhab in order to reach a judgement. Ed.
1295 If someone fears that he, for any reason, is not able to bear the
burden of being appointed a judge or fulfil its duties adequately, and
fears that he may do an injustice, it is disapproved for him to accept
this post.
1296 ...of someone else that he has infringed.
1297 ...with reasonable punishment.
1298 “Because, by being removed from office, he rejoined all the
other people and the testimony of an individual is unacceptable
particularly if it pertains to his own actions” (Al-Jawharat an-
Nayrah).
1299 Regarding deposits or endowments in the possession of
someone.
1300 e open session is public and there is no restriction on
attendance.
1301 When the invitation is specifically for him, or private, the
judge should avoid it, otherwise his impartiality could come into
doubt in the eyes of the public.
1302 eir seats must be the same, of a similar quality and position.
1303 e judge must pay equal attention to both parties and not
differentiate between them in any way whatsoever.
1304 All debts, the payments of which are due, are to be discharged
forthwith.
1305 e debtor is obliged to settle debts he has incurred, whether
actual or through contracts such as agreement to pay a dowry or to
stand surety for someone else. He is detained in lieu of property
which he has, such as payment made to him for goods he sold or
loans that are repaid.
1306 is refers to fact that he has nothing to pay off his debt with.

886
1307 And it seems that he was truthful in his claim of being poor
and/or insolvent.
1308 e judge releases him.
1309 e creditors reserve their right to pursue him and to claim
their dues from him, and the judge does not interfere in their issues
with the debtor.
1310 e husband is required to provide maintenance for his wife
and children. If he refuses to do so, he may be imprisoned.
1311 When one judge writes a legal document to another judge
regarding rights of people, it may be accepted as long as witnesses
testify to its authenticity.
1312 In this case, the litigant is the defendant.
1313 is may occur when the litigants agree to execute the
decision of the judge at another location which is out of the
jurisdiction of this particular judge but within the jurisdiction of
another judge.
1314 is is similar to the previous case but when one of the
defendants is absent and may have already left for that other
location. e judge, in this case, only writes the testimony and
evidence which was presented before him, but leaves the verdict to
be issued by the other judge.
1315 is is made by the judge stamping his official seal over the
contents of the document in order to authenticate its author and
origin, and to legalise its official status.
1316 e defendant.
1317 is is the verdict of the deciding judge.
1318 e verdict of an authority is executable only if it is based on
qualified evidence and it does not oppose the sources of Islamic law.
1319 An absentee may appoint a representative to attend the
session when the judge is to issue his verdict.
1320 Free, male, sane, major, Muslim, ‘ādil (someone with moral
probity), not blind, deaf or mute, nor convicted of unsubstantiated
accusations of illegal sexual intercourse (qadhf).

887
1321 e decision of the arbitrator is final and it binds both parties
who appoint him and who agreed to his decisions.
1322 e ‘āqilah are not a party to the arbitration, therefore, the
judgement of the arbitrator is not binding on them.
1323 is pertains to the division of inherited property. A great
deal of inheritance does not necessarily divide up in a simple fashion
and it takes great knowledge and skill to divide it to the satisfaction
of the heirs.
1324 e wages of the appointed distributor are paid from the bayt
al-māl.
1325 If the leader is unable to pay an appointed distributor from
the bayt al-māl, he should appoint one who is paid by the people
when he gives them their respective shares.
1326 He must not force the people to accept one particular
distributor; the number of distributors may be more than one.
1327 e distributors distribute their respective individual
allotments to the heirs. ey do not share any individual or
indivisible allotment but are given separate areas and shares of
allotment so as to avoid confusion and unnecessary contention.
1328 e distributors receive their fees from the heirs according to
the number of those heirs.
1329 Abū Yūsuf and Muḥammad.
1330 As against note 1328, the distributors shall receive their fees
according to the sizes of the shares they distribute. e bigger the
share of the partition one receives, the more he shall pay to the
distributor.
1331 is includes all immovable property.
1332 e claimants must prove the death of he from whom they
inherit as well as the number of those inheriting from him.
1333 Abū Yūsuf and Muḥammad.
1334 Contrary to note 1332, the heirs need not prove the death or
the number of heirs, and their collective confession is sufficient.
1335 If the property is such that after distribution, each of the
partakers may derive benefit from his own allotted share, the judge

888
should divide and distribute that property, even if only one of the
partakers demands its division.
1336 When all of the goods are cloth, for example, and unlike
contrasting genera, such as rice, goats, etc.
1337 is is due to the vast contrast between each slave in terms of
physical, mental, temperamental, psychological characteristics, etc.
1338 A part of real estate, like one room of a house or a portion of
a larger piece of land.
1339 If there are ten buildings in one city, irrespective of whether
they are together or scattered around the city, and there are seven
co-owners, the buildings are divided individually between all of the
co-owners. For example, if building A is divided between seven,
then building B will be partitioned between seven, etc.
1340 Abū Yūsuf and Muḥammad.
1341 Contrary to the verdict of Abū Ḥanīfah, may Allah have
mercy on him, Abū Yūsuf and Muḥammad, may Allah have mercy
on them, see the more mutually beneficial method to be acceptable
in this regard. ey accepted the division of all the buildings
together between all the parties, as in, building A goes to heir No. 1
completely, building B goes to heir No. 2, a bigger building may be
partitioned in order to accommodate another co-owner and smaller
buildings may entitle their holders to share another building also.
1342 e balance must express the division equally according to the
respective shares.
1343 e measurement depends on the nature of the property to be
divided, for example landed property is measured in cubits, and
valued according to its location.
1344 e drains and paths which are imperative portions of the
share are attached to their respective shares but separated from all
other shares so that no link remains with the other shares
whatsoever.
1345 is is the division of real estate, as stated above. Dinars and
dirhams are divided separately.
1346 All parties must consent if they wish to include dinars and
dirhams in the preceding issue. e building of A, for example, may

889
be smaller as a share than those of the others, and hence they may
want to offer him some dirhams or dinars in order to top up his
share. In the absence of the mutual consent of the parties thereto,
the distributor divides the real estate in such a way that the small
share of A is compensated with some land of the real estate in order
to balance all of the shares. Dinars and dirhams may not be used
unless all the parties concerned agree to it.
1347 is may include a drain from a building or from land.
1348 e parties had not agreed to make it a part of the partition
but to set it aside.
1349 When the lower storey is in shares and it is the portion in
question, and the upper storey is owned outright by an individual.
1350 In contrast to the previous note, when it is the upper storey in
question, to be shared between two or more, and the lower storey is
not in dispute between them.
1351 When both the upper and the lower storeys are disputed with
regards to their division.
1352 About any point in the division.
1353 In favour of any point in the division.
1354 at he himself has received his own share.
1355 Against whom he has made the claim.
1356 He means that coercion has taken place, not that it is legally
valid. Ed.
1357 Coercion is said to have taken place when A threatens B in
order to get him to perform such-and-such an act, and B out of fear
of that threat from A performs the act. It is immaterial by whom
the threat is made.
1358 When the coercing individual or group threatens to kill the
coerced individual, severely beat him, imprison him or cause him, or
his interests, any form of harm whatsoever which may compel him
to follow their directives.
1359 His property.
1360 Or admits the thousand dirhams, or leases his house, or
performs any act or omission against his own will.

890
1361 Although this example refers to buying and selling under
duress, all other matters are dealt with in a similar manner.
1362 Money or goods in exchange for the sold goods.
1363 is constitutes a vitiated sale (bay‘ fāsid).
1364 In this case, the coerced person shall not claim from the one
who was uncompelled.
1365 Abū Yūsuf and Muḥammad.
1366 When someone is compelled into saying something which
removes him from the fold of Islam, it is not considered a valid
expression of apostasy. He remains a Muslim and his wife remains
legally married to him.
1367 ough there are thirteen different types of jihād (as reported
in Ṣahīh Muslim), this book deals with military campaigns which
are undertaken in order to root out imminent threats and repel
armed attacks against the Muslim community.
1368 e term farḍ kifāyah means a collective or communal
obligation.
1369 As is obvious, this comes with its conditions, rules and
regulations, for example, to repel imminent danger and threat of
invasion such as when the enemy is ready to overrun and annihilate
the land, etc.
1370 e rights and duties of Muslims and jizyah-paying non-
Muslims living under Muslim governance (dhimmīs) are the same.
1371 To accept the invitation of Islam, or to pay jizyah and come to
a truce on other terms.
1372 Firing with catapults and shooting arrows at the enemy is
today replaced with modern means of onslaught, which includes
firing shells, laser-guided missiles, electronic means of attack and
even computer hacking – such as computer viruses, worms, trojans,
etc., media warfare, and financial un-plugging, etc.
1373 Flood their forts if possible.
1374 e legal classification farḍ kifāyah becomes farḍ ‘ayn when
the enemy invades the lands of the Muslims, and in such
circumstances, the wife does not require permission from her
husband to fight nor the slave from his master.

891
1375 e warriors can take nothing from the spoils except that
which the leader of the expedition gives them according to the
division of the spoils in the sharī‘ah. Ed.
1376 ose people upon whom the war strategies of the enemy
depend and the opinions of those whom are sought with regards to
warfare are not to be spared because of their danger to the Muslims.
1377 e Imam should inform the enemy of the dissolution of the
peace treaty.
1378 e Imam is not required to inform the enemy of the breach
of the truce in this case.
1379 None of these is a part of the spoils.
1380 Fay’ is that booty taken without fighting which all goes to the
Imam to do with as he sees fit.
1381 Ransoms may not be paid for Muslim prisoners-of-war in the
hands of the enemy in exchange for enemy prisoners-of-war.
1382 Abū Yūsuf and Muḥammad.
1383 In ownership and possession.
1384 A part of the spoils of war.
1385 With regards to the booty, the one fighting in the battle and
the one who helps in the battle receive equal shares.
1386 If reinforcements reach the Muslim army before the latter has
taken the booty back to the Muslim lands, the former receive a
share in that booty.
1387 ose who went with the army for the sake of trading within
the army have no right to the spoils because they did not go out
with the army to fight the enemy but only to trade.
1388 e authorisation of the master for him to do that is
immaterial.
1389 e words ‘Turks’ and ‘Romans’ are hypothetical; any two
groups that fight each other are referred to.
1390 Original Muslim property taken by the non-Muslims in battle
and then re-taken by Muslim warriors.
1391 If the goods of a Muslim, A, were taken by the enemy in
battle, the enemy becomes the owner of those goods, but if the

892
Muslims defeat the enemy and retake their own goods, then A may
acquire ownership of his own goods before division of the booty is
made, and he will not be required to pay for them.
1392 In contrast with the previous case, if the Muslim, A, wishes to
seek ownership of the goods, he must buy them back from the
fighter who was given them in the distribution of the spoils.
1393 Although they may gain them, they never gain full ownership.
us, if Muslims regain them in battle, they revert to their original
owners.
1394 Abū Yūsuf and Muḥammad.
1395 Before distribution of the spoils.
1396 i.e. his heirs will not get anything. Ed.
1397 ese are the belongings of the killed enemy fighter, that are
used in battle.
1398 e leader takes a fifth. Ed.
1399 e belongings of the fallen enemy fighter form a part of the
whole booty and they are distributed likewise.
1400 Abū Yūsuf and Muḥammad.
1401 With regards to the shares of the conquering fighters, the old
or inferior horse is considered the same as the superior breed.
1402 e close relatives in this context refers to those closely

related to the Prophet Muḥammad . So, if orphans, the needy

and the travellers are close relatives of the Prophet Muḥammad ,

they are given gifts from the fifth before other orphans, needy
people and travellers.
1403 ere is no actual share for Allah in the booty; it is figurative.

1404 Ṣafī is whatever the Prophet would choose for himself

from the booty.
1405 i.e. he does own it but it is prohibited (maḥẓūr) to him.
1406 i.e. at risk of expropriation or being spent otherwise.
1407 Land subject to ‘ushr is tithable, but dissimilarities lie
between this understanding of tithe and that of other religions and

893
cultures, such as Judaism, Christianity, Sikhism, those applied
during the Middle Ages, and those of modern practices such as
governmental collections in different countries.
1408 A place near Kufa in Iraq.
1409 Today’s Iraq.
1410 A town to the east of the River Tigris in Iraq.
1411 A place near Basra in Iraq.
1412 is was the geographical extent of the Arab lands and those
lands to which the land-tax (kharāj) and ‘ushr (a tenth) taxation
laws applied at the time of the writing of this book, the Mukhtaṣar
by Imam Abu’l-Ḥusayn Aḥmad ibn Muḥammad al-Qudūrī, may
Allah have mercy on him.
1413 ‘Ushr, i.e. a tenth of the produce, is payable by the Muslim
owners of such land as zakāh.
1414 ...if they are not Muslim.
1415 A river in Iran.
1416 e jarīb is sixty cubits by sixty cubits.
1417 is is for the land of the Sawād, as it was then owned by
non-Muslims, and so subject to kharāj.
1418 One ṣā‘ is eight riṭls in the school of Abū Ḥanīfah, may Allah
be merciful to him.
1419 is is made between the conquering Muslim army and the
non-Muslim owners of the conquered land.
1420 is is the upper class of the society.
1421 is is the middle class.
1422 is is the working class.
1423 According to Abū Ḥanīfah, may Allah have mercy on him, if
one has not paid jizyah for two years or more, then all previous
jizyah due lapse from him and he is only required to pay jizyah for
the current year. Abū Yūsuf and Muḥammad, may Allah have mercy
on them, hold the contrary view making all previous unpaid dues
payable.
1424 e jizyah is taken from him by force, if necessary, and the
appropriate ḥadd punishments for the above crimes applied to him.

894
Ed.
1425 is is after Islam is offered to him and any doubts that he
has therein are removed.
1426 It shall remain out of his ownership as long as he persists in
reneging.
1427 If the renegade returns to Islam and becomes Muslim again,
he is reinstated as the owner of his property.
1428 It is placed in the treasury (bayt al-māl).
1429 ey are repaid forthwith from his property.
1430 All trade made during that period remains suspended for the
duration of his reneging.
1431 e ownership of her property does not cease by her
becoming a renegade.
1432 A tribe of the Iraq region composed mainly of Christians.
1433 e Banū Taghlib refused to pay jizyah and asked instead to
pay zakāh like the Muslims. e Caliph ‘Umar accepted their
demand and a mutually agreed amount, double the zakāh, was
levied upon them in lieu of jizyah.
1434 Because zakāh is taken from Muslim women as well as men,
the women of Banū Taghlib were also required to pay it.
1435 Small groups or individuals may rebel against the leader due
to doubts or misunderstandings and it remains incumbent on the
leader to rid them of such doubts or misunderstandings.
1436 Although they are rebels, they are still Muslims.
1437 It may be that the loyal Muslims require weaponry due to the
lack of it, so whatever weapons they acquire from the rebels, they
may use them in any battle. Nevertheless, after the fighting, and the
consequent surrender and repentance of the former rebels, the
weapons must be returned to them, since they are Muslims and the
weapons are their property.
1438 If the rebels had not spent the proceeds of the land-tax
(kharāj) and the tenth (‘ushr) rightfully, e.g. they spent it to
purchase arms to fuel their rebellion, etc., then those who paid that
are not compelled to pay it again. It would, however, be better for

895
them that they do pay it again, for the sake of Allah, exalted is He,
and this time to the bona fide representatives of the Muslim leader.
1439 Abū Yūsuf and Muḥammad.
1440 is includes anything used to recline on or rest upon.
1441 Abū Yūsuf and Muḥammad.
1442 Khazz is a mix of fibres which include silk. Ed.
1443 is was written when the Arabic language was very strong
among the Muslims. It is now better, and not disapproved, to use
such marks and diacritical indications for ease of recitation,
especially for the benefit of non-Arab Muslims.
1444 is is permitted but better avoided.
1445 is refers to animal sexual intercourse, and in this case it is
crossbreeding.
1446 e offspring of a male donkey (jack) and a female horse
(mare) is a mule, whereas the offspring of a male horse (stallion) and
a female donkey (jenny) is a hinny.
1447 ese are transactions between humans, such as contracts,
agency, surety, trade, etc.
1448 is is only when we are inclined to believe their statement to
be true.
1449 ese are the affairs between Allah, exalted is He, and
humans, such as prayer, oaths, fasting, etc.
1450 is is the same as the preceding issue.
1451 ese are those with whom marriage is permanently
forbidden, irrespective of their relationship by blood, milk or
affinity.
1452 is permits the viewing of the permitted parts of any
unmarried woman, which is her face and her palms.
1453 e sale of fruit juice is itself lawful.
1454 It is not permitted for the testator to bequeath anything in
favour of someone who is already inheriting from him, unless all the
other heirs to the inheritance of this testator, after his death, agree
to it and allow such a bequest to go ahead.

896
1455 e maximum amount that one may bequeath is a third of the
property.
1456 If someone had made a bequest to another person who was
later responsible for his death, whether accidently or not, that
bequest would not be carried out. Ed.
1457 e general rule requires the legatee to accept the legacy after
the death of the testator. is proviso describes the situation when
the legatee dies before his acceptance of the bequest. Due to the
nature of the case, the bequest is made a part of the property of the
deceased, by way of juristic preference (istiḥsān), and his heirs
inherit it.
1458 e associated person appointed by the judge assists the one
bequeathed to in the implementation of the bequest.
1459 In matters other than these, neither of the two legatees may
transact with the shared bequest without the consent of the other.
1460 e maximum amount which may be bequeathed is a third,
otherwise the unanimous approval of the heirs is to be sought. In
this case, in total, two-thirds of the property have been bequeathed
to two persons. Lacking approval from the heirs, the maximum of a
third is divided equally between the two legatees, which makes the
maximum amount to each legatee a sixth of the total property of the
deceased.
1461 e sixth is returned to the inheritance. e third is divided
into three: two-thirds for the legatee who has been bequeathed a
third, and a third for the legatee who has been bequeathed a sixth.
1462 Out of the four portions, three is for the one to whom the
entire property was bequeathed, and one portion is for the legatee to
whom a third of the property was bequeathed.
1463 Muḥābāh: when A, the testator, bequeaths that an item worth
nine hundred dirhams be sold to legatee, B, for three hundred
dirhams, then B has acquired the benefit of six hundred dirhams
(two-thirds bequeathed), as muḥābāh. is issue of muḥābāh is valid
subject to the total bequest being within a third of the property of
the testator. In this case, the sum total of the bequest by way of
muḥābāh is six hundred dirhams. If the testator has other property

897
totalling a value of twice that of the bequest (i.e. two-thirds of the
total property), which in this case would be a minimum of twelve
hundred dirhams, then such a bequest would be valid; B having
acquired the benefit of receiving two-thirds of the item as bequest
via muḥābāh, though that amounts to less than one-third of the
total property of the testator.
If the total comprises more than a third of the property of the
testator, i.e. he has no other property, and the heirs do not approve
of the bequest, then they should leave out a third value for that item,
which is three hundred dirhams, and receive the value of the
remainder, in which case B, the legatee, pays six hundred dirhams.
1464 Si‘āyah: when A, the testator bequeaths the freeing of his two
slaves, B and C, who are worth nine hundred dirhams and 2700
dirhams, respectively, and A has no other property, but the heirs do
not approve of the bequest due to it being more than a third, the
slaves are freed to the extent of a third of their individual values,
together making up a third of their associated value of a third, i.e. B
is freed according to three hundred dirhams of his worth and C
according to nine hundred dirhams of his worth. With regards to
the remainder of their values, they have to pay that off, six hundred
dirhams and eighteen hundred dirhams respectively.
1465 Darāhim mursalah: when A, the testator bequeaths three
hundred dirhams to B and six hundred dirhams to C but his total
property is only nine hundred dirhams, if the heirs do not agree to
that, then a total of a third of the entire wealth of the testator is
distributed amongst the people to whom he has made a bequest. In
this case, out of nine hundred dirhams, a third of the total property
of the testator, which is three hundred dirhams, is shared between
the legatees, one hundred dirhams and two hundred dirhams for B
and C, respectively.
1466 e payment of the debt is a priority over that of the bequest.
1467 at is the terminal illness which confines him to his bed and
leads to his death.
1468 When he is on his deathbed he no longer has free disposal of
his property apart from the third from which he can make a

898
bequest. His dying actions are of the same status as bequests. Ed.
1469 All people who receive bequests (legatees) may partake in this
and they are not entitled to anything else.
1470 Abū Yūsuf and Muḥammad.
1471 Abū Yūsuf and Muḥammad.
1472 If either of the two leave behind enough property to
constitute a legal bequest, their bequest is nevertheless invalid due to
their legal incapacity.
1473 Such as the husbands of his daughters, his sisters and any
other un-marriageable female relatives, even his mother and
grandmother. Ed.
1474 If the testator bequeaths some property and states that such-
and-such a portion should go to his relatives, that bequest includes
two persons or more from amongst his un-marriageable relatives,
and it does not include his parents or his children because they
receive fixed shares (farā’iḍ) and thus may not receive bequests from
him. Ed.
1475 Abū Yūsuf and Muḥammad.
1476 e slave-woman and her child.
1477 Li’dh-dhakari mithlu ḥaẓẓi’l-unthayayn (Sūrat an-Nisā’ 4:11).
1478 A sixth.
1479 Howsoever low, great-grandson, etc.
1480 Howsoever high, great-grandfather, etc.
1481 e homicide cannot inherit from the person whom he has
killed, whether accidentally or deliberately.
1482 A Muslim cannot inherit from a non-Muslim nor can a non-
Muslim inherit from a Muslim. However, non-Muslims may inherit
from each other even if they are of different religions. Ed
1483 e Qur’ān.
1484 A full sister and a full brother are also known as sister-german
and brother-german respectively, although the usage is archaic.
1485 If the deceased wife leaves a child.
1486 When the child, or grandchild, exists.

899
1487 Two daughters or more, will together be given two-thirds to
be shared between them. e same applies to two granddaughters or
more from the son when no proper daughter exists, two full sisters
or more, and two or more half-sisters from the father in the absence
of a full sister.
1488 e residue of the estate, after the legally appointed persons
have been given their shares, is her fixed share in two cases.
1489 is applies when there are no heirs other than the spouse and
both parents of the deceased.
1490 After the husband or the wife, as the case may be, is allotted
his or her fixed share, the mother is given a third of whatever
remains.
1491 Uterine brothers and sisters, if they are two or more, jointly
inherit a third of the inheritance.
1492 If the deceased leaves a child or grandchild [from a son].
1493 is includes sisters, full, agnatic and uterine, when they are
two or more, in any combination.
1494 Along with a child or a grandchild from the son of the
deceased.
1495 e grandmother may be from either side, maternal or
paternal.
1496 Both paternal and maternal grandfathers are included.
1497 He renders them residuaries (‘aṣabah) in terms of inheritance,
i.e. the ‘aṣabah are those who inherit when there are no direct heirs
or they inherit the residue of the estate when the fixed shares are
distributed.
1498 Paternal uncles of the father.
1499 Full brothers are stronger in relation and in ties than half-
brothers from either the father or the mother.
1500 is is known as muqāsamah.
1501 Li’dh-dhakari mithlu ḥaẓẓi’l-unthayayn (Sūrat an-Nisā’ 4:11).
1502 e males shall inherit but not the females.
1503 e males have twice the share of the females at that level, i.e.
in relation to their sisters.

900
1504 e paternal uncle at some point was married to the mother
of the deceased, so that his son is both a cousin and a uterine
brother to the deceased.
1505 Including the Jews and the Christians.
1506 ese two cases are hypothetical; this applies to any case
wherein multiple deaths have occurred simultaneously of those who
would have inherited from one another, and the sequence of their
deaths cannot be ascertained.
1507 Otherwise, some of them would have inherited from others,
and then that would have gone, in turn, to their heirs.
1508 is is like a Magian father marrying his own daughter. Here
we find a clash of relationship which is that of daughter and wife. If
he died, she would inherit from him in two ways; as a wife and as a
daughter. Islam has forbidden such incestuous relationships and,
hence, inheritance applying thereto.
1509 e process of imprecation by both parties (li‘ān) (See
Chapter of Li‘ān – Imprecation by Both Parties).
1510 e distribution of the inheritance remains suspended.
1511 Waḍ‘ al-ḥamal in this regard refers to being relieved of the
pregnancy, whether delivering the child alive, stillborn, suffering a
miscarriage or having an abortion.
1512 She is the great-grandmother of the deceased.
1513 is is a comparative clause where the closer distant kindred
are more deserving to inherit than those who are relatively further.
1514 After the heirs who have fixed shares have been given their
shares and an amount is left over, in the absence of residual heirs,
the master who freed the slave inherits that amount.
1515 With regards to the contract of clientage, for example when a
man takes on the clientage of another person who accepts Islam, the
master has a right in the inheritance left by the client (mawlā).
1516 Abū Ḥanīfah and Muḥammad, may Allah have mercy on
them.
1517 If the largest share of the inheritance is a half, then the largest
common denominator is two, hence, the shares are divided from
two.

901
1518 As in the previous note, the largest common denominator
forms the basis of distribution, which in this case is three.
1519 Contrary to the first case, the inheritance is divided in fours
here.
1520 is refers to the doctrine of ‘awl, where in the case in which
shares such as those aforementioned cannot be determined due to
the number of shares exceeding the total inheritance, such
denominators may be increased in order to accommodate all the
heirs in fairness. For instance, if a woman dies leaving behind her a
husband and two sisters, the husband would take a half of the
property and the sisters would take two-thirds. is would leave us
with an impossible scenario if we were to divide the property in twos
or threes. If the husband was to be given a half, the sisters would
only be left with a quarter each, and if we were to give the sisters
two-thirds, the husband would only receive a third. In a case such as
this, we raise the number of shares to seven, where the husband
takes three shares and the sisters take two shares each, seven in total
between them. Likewise one deals with shares rising to eight, nine
and ten.
A similar case was first dealt with during the time of the Caliph
‘Umar ibn al-Khaṭṭāb and the decision reached on it is the basis
for this subject.
1521 In this case, the basis is four because the wife gets a quarter.
1522 e wife receives two-eighths and the brothers share six-
eighths between them.
1523 e three shares cannot be given to six brothers properly
unless we find the highest common factor between them, which is
two. We multiply three by two and achieve six, which now distribute
equally between the six brothers.
1524 In this issue, the common denominator is four, the wives
share a quarter and the two brothers are entitled to the remainder of
three-quarters which do not divide equally between them. We
multiply the denominator, which is four, with two to achieve eight.
We can now give two shares, one each, to the wives and six, three
each, to the brothers.

902
1525 When you have multiplied using the bigger number, which is
four, then you do not need to multiply using the smaller number,
two.
1526 Six multiplied by two or three multiplied by four, both of
which give twelve.
1527 e inheritance is divided into forty-eight shares, which are
easily divisible among the heirs without any awkward fractions. Ed.
1528 is forms the basis of the issue, the denominator.
1529 e basis of the case, for example, is four: the four wives have
a quarter, the sister a half, and the paternal uncles a share which is
divided among them, and they are six in number. So multiply half
the number of wives by the number of uncles, i.e. two times six, and
that gives twelve, and then multiply it by the obligatory shares,
which are four (because the inheritance is originally divided into
quarters) and you get forty-eight shares, of which the wives get a
quarter or twelve shares, three shares each, the sister gets twenty-
four shares, and the uncles get twelve shares, two shares each. is
case is taken from al-Jawharat an-Nayrah in explanation of this
paragraph. Ed.
1530 e issue is worked out according to the aforementioned
relevant examples.
1531 Such as a wife, a sister by the father, a mother and four
paternal uncles. Moreover the inheritance was not divided before
one of the uncles dies without any heirs apart from his siblings. e
first case is based on four, the wife taking a share, the sister two
shares, the uncles a share divided between them. So multiply the
four [shares] by four [uncles] and you will get sixteen, the wife
taking four, the sister eight, and the uncles four, each one taking one
share. One of them [the uncles] dies leaving behind him his three
siblings, and in his hand there is the one share which is not divisible
among his heirs [without using fractions]. So multiply the case,
which is three [because of the number of his siblings] by the sixteen
[shares which have not been shared out among the heirs of the first
deceased] and it will be forty-eight, of which the correct result is
that the wife gets four multiplied by three which will be twelve, that

903
being a quarter of the entire [inheritance of the first deceased], the
sister gets eight multiplied by three which is twenty-four, and that is
a half [of the original inheritance] and there remain twelve for the
remaining heirs [the uncles] each one receiving four. (Al-Jawharat
an-Nayrah). Ed.
1532 An example of this is a husband [who gets a half of his wife’s
estate] and two brothers [who share a half of their sister’s estate],
which correctly is from [a basis of ] four, and then the husband dies
and leaves four sons [from another wife]. Its basis is four and the
two [cases] agree on [being divisible] by a half. So multiply a half of
their [the sons’] number [i.e. a half of four is two] by all of the other
[four shares from the first case] and it will be eight [shares]. From
this the two cases will be correct: the two brothers get four [two
shares each] and the children of the husband get four shares, [one
share each]. (Al-Jawharat an-Nayrah). Ed.
1533 ere are forty-eight grains in a dirham.
1534 Its form is: a husband [who takes a quarter of his deceased
wife’s estate], two parents [each of whom takes a sixth] and a son
[the case being] from twelve [shares] and then the son dies leaving a
son, a father, and a grandmother and grandfather, they [the father,
grandfather and grandmother] being the ones left by the first
deceased, and he has in his possession five of the twelve [shares left
by his mother] and the basis of his fixed share is from six, so
multiply the second [six] by the first [twelve] and it will be seventy-
two, of which the father [of the deceased woman] takes in the first
[case] twelve [shares] but he gets nothing in the second case because
he is the father of a [deceased] mother, and the mother gets
seventeen, the husband in the two cases, and he is the father in the
second twenty-three [shares] and the son in the second [case gets]
twenty [shares].
So divide the [seventy-two] shares of the case by the grains of
the dirham, which are forty-eight, so that half a share comes out as
thirty-six, that corresponding to half a dirham which is twenty-four
[grains], and a third of a share is twenty-four corresponding to a
third of a dirham which is sixteen [grains], every share being two-

904
thirds of a grain, and for three shares there are two grains, and the
quarter [share] is eighteen [grains]. e dāniq is ten, the eighth
nine, the qīrāṭ six shares, and the ṭassūj – which is half a qīrāṭ – and
it is two grains or three shares, and the grain is a share and a half,
and every share has two-thirds of a grain (Al-Jawharat an-Nayrah).
Ed.

905
Table of Contents

Title Page 2
Copyright 3
Contents 4
Foreword 16
Endorsements of the Translation 16
1. Muḥammad Imdād Ḥussain Pīrzādā 16
2. al-Ḥajj Abū Ja‘far al-Ḥanbalī 16
3. Shaykh Muḥammad ibn Yaḥyā an-Nīnowī 22

INTRODUCTION 26
Fiqh 26
Meaning and Application 26
Objectives 28
Compilers 29
e Mukhtaṣar al-Qudūrī 31
About the Author 31
About the Book 33
e Translation 36

1. ṬAHĀRAH – PURIFICATION 40
Wuḍū’ – Minor Ritual Purification 40

906
e Obligations (Farā’iḍ) of Wuḍū’ 41
e Sunnahs of Purification [sought in Wuḍū’] 41
Matters that are Recommended (Mustaḥabbāt) in Wuḍū’ 42
at which Nullifies Wuḍū’ 43
Ghusl – Major Ritual Purification 44
e Obligations of Ghusl 44
e Sunnahs of Ghusl 44
e Factors which make Ghusl Obligatory 45
When Ghusl is Sunnah 45
Water 46
Used Water 49
On Tanning 49
On Wells 49
Leftover Water 52
Tayammum – Dry Ablution 54
Stipulations for the Validity of Tayammum 54
e Method of Tayammum 54
at which Nullifies Tayammum 55
e Search for Water 56
Masḥ – Wiping Over Khuffs 58
Its Ruling 58
Method of Wiping 59

907
 at which Nullifies Wiping 60
Issues Pertaining to the Duration of Wiping 60
at over which Wiping is not Valid 61
Ḥayḍ – Menses 61
e Duration of Menstruation 62
Colour 62
On its Legal Ruling 62
Istiḥāḍah – Chronic Menstrual Bleeding 63
On its Legal Ruling 64
Nifās – Postnatal Bleeding 65
Impurities and their Cleansing 66
Heavy and Light Filth 67
Visible and Invisible Filth 68
Istinjā’ – Cleansing the Excretory Passages 69

2. ṢALĀH – PRAYER 70
e Timings of Prayer 70
Recommended Times for Prayer 71
Adhān – e Call to Prayer and its Ruling 125
Preconditions of Prayer 74
e Properties of Prayer 76
Obligations (Farā’iḍ) 76
e Performance of Prayer 76

908
e First Rak‘ah or Unit 76
e Second Rak‘ah or Unit 80
Recitation 81
e Witr Prayer 82
Minimum Recitation 83
e Jamā‘ah or Congregation 83
Imāmah – Leading the Congregational Prayer 83
Congregation of Women 84
Sequence of Rows 85
Other Issues Pertaining to Prayer 85
at which Nullifies Wuḍū’ 88
Discharge (Qaḍā’) of Missed Prayers 90
Disapproved Times for Prayer 91
Nawāfil – Supererogatory Prayers 92
e Ruling of Recitation in Supererogatory Prayers 93
Prostrations for Error 95
e Prayer of the Sick 97
e Prostrations of Recitation 99
e Qur’ānic Verses (Āyahs) of Prostration 99
e Ruling on Prostration 100
e Prayer of the Traveller 102
Shortening (Qaṣr) the Prayer 102

909
Beginning the Shortening 102
e Jumu‘ah (Friday) Prayer 105
e Preconditions for the Validity of the Jumu‘ah Prayer 105
Its Preconditions 105
ose on whom the Jumu‘ah Prayer is not Obligatory 106
e Khuṭbah – Address 108
e Prayer of the Two ‘Īds 109
Recommended Acts of ‘Īd al-Fiṭr 109
e ‘Īd Prayer Procedure 110
Recommended Acts of ‘Īd al-Aḍḥā 111
e Takbīr at-Tashrīq 112
Prayer during the Solar Eclipse (Kusūf ) 112
e Istisqā’ – Prayer for Rain 113
e (Night) Prayer During the Month of Ramadan 114
e Tarāwīḥ Prayer 114
e Prayer in the State of Fear 115
Funerals 116
Bathing the Corpse 117
e Shroud 118
e Funeral Prayer 119
Carrying the Bier 120
e Burial 121

910
 e Stillborn 121
e Shahīd – Martyr 122
Prayer Inside the Ka‘bah 123

3. ZAKĀH – OBLIGATORY POOR-DUE 125

Obligations of Zakāh 125
Zakāh on Camels (Ibil) 126
Zakāh on Bovines (Baqar) 128
Zakāh on Sheep and Goats (Ghanam) 130
Zakāh on Horses (Khayl) 131
Zakāh on Property (Māl) 133
Zakāh on Silver (Fiḍḍah) 133
Zakāh on Gold (Dhahab) 134
Zakāh on Stock (‘Urūḍ) 135
Zakāh on Crops (Zurū‘) and Fruits (imār) 136
ose to whom it is Permitted to Pay Zakāh and those to
138
whom it is not Permitted
ose Entitled 139
ose Not Entitled 140
Ṣadaqat al-Fiṭr 143
e Amount of Fiṭrah 144

4. ṢAWM – FASTING 146

Types of Fasting (Ṣawm) 146

911
 Ramadan Moonsighting 147
e Meaning of Fasting 148
Miscellaneous Issues Pertaining to Fasting 148
‘Īd al-Fiṭr Moonsighting 154
I‘tikāf – Seclusion 154

5. ḤAJJ – PILGRIMAGE 157

e Stipulations of Obligation 157
Mawāqīt – Geographic Limits 158
Iḥrām – the Ḥajj Costume 158
Talbiyah – the Ḥajj Chant 159
Prohibitions for the Muḥrim 160
Allowances for the Muḥrim 161
Ifrād 161
Ṭawāf al-Qudūm – Circumambulation upon Arrival 161
Sa‘y – Going Vigorously and Quickly Between Ṣafā and
163
Marwah
Staying at ‘Arafah 164
Staying at Muzdalifah 166
Minā 166
Ṭawāf az-Ziyārah – Circumambulation of Visiting 167
Ramy – Casting Stones 168
Ṭawāf aṣ-Ṣadr – Farewell Circumambulation 169

912
 Miscellaneous Issues Pertaining to Ḥajj 170
Qirān 171
Tamattu‘ 173
Offences ( Jināyāt) During Ḥajj 177
Conjugal Relations 178
Impurity 180
Shortcomings 180
Hunting 182
Iḥṣār – Confinement 187
Lost Rites 189
Offering (Hady) 190

6. BAY‘ – SALES 194

e Conditions of Sale 194
Khiyār ash-Sharṭ – Option Stipulated in the Contract 200
Khiyār ar-Ru’yah – Purchase Subject to Examination 202
Khiyār al-‘Ayb – Option to Rescind a Sale due to a
204
Blemish
Bay‘ Fāsid – Invalid Transactions 207
Bay‘ Gharar – Uncertain Transactions 208
On Abhorrent Transactions 211
Iqālah – Negotiated Rescission of the Contract 212
Murābaḥah – Profit-based Sale – and Tawliyah – Profitless 213

913
 Sale
Ribā – Usury 216
Salam – Advance Payment 220
e Conditions for the Validity of Salam 224
Ṣarf – Currency Transactions/Exchange 225

7. RAHN – PAWNING 232

8. ḤAJR – LIMITATION ON SOMEONE’S
242
LEGAL COMPETENCE
On Fools 243
Puberty 246
On Insolvents 247

9. IQRĀR – ACKNOWLEDGEMENT 252

Making an Exception to an Acknowledgement 254
Confession on Deathbed 259

10. IJĀRAH – HIRE/LEASE 263

Types of Hired Persons (Ujarā’) 267
e Employee [Held] in Common 267
e Private Hireling 268
at which Invalidates Ijārah 269
When Remuneration becomes Due 270
Differences between the Lessor and the Lessee 276

914
11. SHUF‘AH – PREEMPTION 280
Procedure of a Lawsuit 283

12. SHARIKAH – PARTNERSHIP 294

Sharikat al-Amlāk – Partnership in Owned ings 294
Sharikat al-‘Uqūd – Contractual Partnership 294
Sharikat al-Mufāwaḍah – Unlimited Partnership 295
Sharikat al-‘Inān – Limited Partnership 297
Sharikat aṣ-Ṣanā’i‘ – Partnership in Manufacture 299
Sharikat al-Wujūh – Partnership in Liabilities 300
Unsound Partnerships 301

13. MUḌĀRABAH – PROFIT-SHARING

303
PARTNERSHIP
14. WAKĀLAH – AGENCY 310
at Which Invalidates Agency 315

15. KAFĀLAH – SURETY 321

Surety of Person 321
Surety of Property 324

16. ḤAWĀLAH – TRANSFER OF DEBT 329

17. ṢULḤ – NEGOTIATED SETTLEMENT 332
18. HIBAH – GIFTS 340

915
 Retraction of a Gift 343

19. WAQF – ENDOWMENT 348

20. GHAṢB – USURPATION 353
21. WADĪ‘AH – DEPOSITS 360
22. ‘ĀRIYAH – LOAN (OF THE USE OF A
364
COMMODITY)
23. LAQĪṬ – FOUNDLINGS 368
24. LUQṬAH – FOUND PROPERTY 370
25. KHUNTHĀ – HERMAPHRODITES 373
26. MAFQŪD – MISSING PERSONS 377
27. IBĀQ – FUGITIVE SLAVES 379
28. IḤYĀ AL-MAWĀT – REVIVIFYING
381
BARREN LAND
29. MA’DHŪN – AUTHORISED SLAVES 385
30. MUZĀRA‘AH – CROPSHARING 389
31. MUSĀQĀH – CROPSHARING BY
393
IRRIGATION
32. NIKĀḤ – MARRIAGE 395
Prohibited Categories of Women 396

916
 Marriage to Non-Muslim Women 398
Virgins (Bikr) and Previously-Married Women who had
399
Consummated their Marriages (ayyib)
Guardian (Walī) 402
Suitability (Kafā’ah) 403
Dowry (Mahr) 404
Miscellaneous Issues Pertaining to Marriage 412

33. RAḌĀ‘ – SUCKLING 421

34. ṬALĀQ – DIVORCE 427
Kinds of Divorce 427
Explicit Divorce 431
Implicit Divorce 432
Delegation (Tafwīḍ) of Divorce 442
Retraction of Divorce (Raj‘ah) 445
On Legalisation of Remarriage (Ḥalālah) 448

35. ĪLĀ’ – VOWING TO ABSTAIN (FROM

SEXUAL INTERCOURSE WITH ONE’S 451
WIFE)
36. KHUL‘ – DIVORCE AT THE INSTANCE
455
OF THE WIFE
37. ẒIHĀR – INJURIOUS COMPARISON 459

917
 e Wording of Injurious Comparison (Ẓihār) 459
e Expiation of Injurious Comparison (Ẓihār) 461

38. LI‘ĀN – IMPRECATION BY BOTH

467
PARTIES
e Procedure of Imprecation by Both Parties 468

39. ‘IDDAH – WAITING PERIOD 472

On the Mourning of Widows 475
Proof of Lineage of the New-Born Child 478

40. NAFAQĀT – MAINTENANCE 481

Custody 487

41. ‘ITĀQ – SETTING FREE 493

TADBĪR – Setting Free a Slave on the Death of the
499
Master
ISTĪLĀD – Bearing the Child of the Master 501

42. AL-MUKĀTAB – THE SLAVE WHO

CONTRACTS TO PURCHASE HIS 505
FREEDOM
On the Umm al-Walad and Mudabbar being Mukātab 511

43. WALĀ’ – CLIENTAGE 514

44. JINĀYĀT – OFFENCES 519
Kinds of Homicide 519

918
 Qiṣāṣ (Retaliation; lex talionis) for the Loss of Life 521
Qiṣāṣ for the Loss of Bodily Organs 523

45. DIYĀT – COMPENSATORY PAYMENTS

529
FOR CRIMES
Organs of the Human Body of which there is only One 532
Organs of the Human Body that exist in Pairs 532
Organs of the Body, or other Essential Parts, of which
533
there are More than Two
Compensatory Payment for Wounds 535
Compensatory Payment for Amputation/Dismemberment 537
Compensatory Payment for Homicide and the Legally
539
Responsible Group (‘Āqilah)
Offences by Riding Animals 541
Offences by Slaves 542
Leaning Walls and Killing Slaves 544
Qasāmah – Compurgation by Oath 547

46. MA‘ĀQIL – PAYERS OF DIYĀT/THE

551
LEGALLY RESPONSIBLE GROUP
47. ḤUDŪD – PUNISHMENTS FOR
554
CONTRAVENTION OF THE LIMITS
Zinā – Unlawful Sexual Intercourse 554

919
 Retraction by the Confessor and Witness 557
e Ḥadd Punishment for Consumption of Alcohol
562
(Shurb)
Qadhf – Unsubstantiated Accusation of Unlawful Sexual
564
Intercourse
Ta‘zīr – Discretionary Punishment 567

48. SARIQAH WA QUṬṬĀ‘ AṬ-ṬARĪQ –

569
THEFT & HIGHWAY ROBBERS
On Well-Protected Places (Ḥirz) 572
On Amputation 574
On Highway Robbery 576

49. ASHRIBAH – [INTOXICATING] DRINKS 579

50. ṢAYD WA DHABĀ’IḤ – GAME &
581
ANIMALS FOR SLAUGHTER
On Dhabḥ – Slaughtering 585

51. UḌḤIYAH – SACRIFICE 590

52. AYMĀN – OATHS 593
Expiation for the Breach of Oath 597
Swearing an Oath Not to Enter a House, etc. 599
Swearing an Oath Not to eat Food 601
Swearing an Oath on Time 606

920
53. DA‘WĀ – LAWSUITS 611
Oaths in Lawsuits 619
Miscellaneous Claims 621

54. SHAHĀDĀT – TESTIMONY 630

Acceptable and Unacceptable Witnesses 633
Conformity of Testimony 636

55. AR-RUJŪ‘ ‘AN ASH-SHAHĀDAH –

641
RETRACTION OF TESTIMONY
56. ĀDĀB AL-QĀḌĪ – CONDUCT OF THE
646
JUDGE
57. QISMAH – DIVISION 654
58. IKRĀH – COERCION 662
59. SIYAR – CAMPAIGNS 667
On Truce 671
Ghanā’im – Spoils 677
On Jizyah – e Capitation on Non-Muslims Living under
687
Muslim Governance (Dhimmīs)
On Apostates (Murtadds) 689
Rebels (Bāghīs) 693

60. ḤAẒR WA IBĀḤAH – PROHIBITION &

695
PERMISSIBILITY

921
61. WAṢĀYĀ – BEQUESTS 701
62. FARĀ’IḌ – INHERITANCE 713
Eclipses in Inheritance 717
Residuaries (‘Aṣabāt) 718
Exclusion from Inheritance (Ḥajb) 719
e Issue of Mushtarakah 720
Redistribution of Residue (Radd) 721
Relations by the Women’s Side (Dhawū’l-Arḥām) 723
Calculation of Shares (Ḥisāb al-Farā’iḍ) 726

APPENDIX ON ZAKĀH 732

Table to Show Rates of Zakāh in Camels 732
Table to Show Rates of Zakāh in Bovines 733
Table to Show Rates of Zakāh in Ovines (Sheep and
734
Goats)

GLOSSARY 735
BIBLIOGRAPHY 785
e Noble Qur’ān 785
Ḥadīth Compilations 785
Fiqh Books 786
Lexicons 788
Others 788

922