Qada' (plural aqdiya) is used for judgements, finishing, destruction performance, sending,
carrying out, going, and determination, Technically, as Ibn Rushd says, it is reporting about a legal ruling in a binding
way. It is one of the fard kifayas, i.e, there must be a number who undertake it since it contains necessary
public welfare. It can become an individual obligation, as when there is one man who fulfils its preconditions and it is feared
that rights will be lost for their people if he does not undertake judgement. It can be forbidden, when someone is ignorant
and aiming for this world by it or tyrannical. Judgement with justice is one of the best pious actions and injustice in judgements
is one of the greatest wrong actions and greatest sins. The Almighty says, "The degenerates will be firewood for Hellfire."
(72:15) The Prophet, may Allah bless him and grant him peace, said, "The most arrogant of people to Allah and the most
hated of people by Allah and the furthest of people from Allah is a man whom Allah appoints over anything in the Community
of Muhammad in anything and is not just to them."
[Being is a qadi is a test for the one who undertakes it. The Prophet, may Allah bless him
and grant him peace, said, "Whoever is made a qadi has been slaughtered without a knife." It has certain preconditions: being
Muslim, sane, free, male, adult, equitable, intelligent and capable of ijtihad.]
One of its preconditions is ijtihad. It is not sound to appoint an imitator when there is a mujtahid
[It is permitted when there is no mujtahid. He must act according to the well-known
position in the school of his Imam. Know that he means an absolute mujtahid. A lesser mujtahid is in the position
of an imitator. There are two categories: a mujtahid of the school, who can establish the proofs, and a mujtahid
in fatwa, who can exercise preference.
He begins the topic with the sound hadith.
38.1. Court procedure
38.1a. The onus is on the claimant
The plaintiff must produce testimony and the one who denies it takes an oath.
[ One of the shaykhs said that the claimant is the one who says that something is true and the defendant
is the one who says it is not. The claimant must produce evidence because he is someone who seeks to establish something.
The oath is taken by the one who denies it because he has the stronger side since he claims the basis and the basis is lack
38.1b. No oaths unless the case is plausible
There is no oath taken unless it is established that they have had dealings or that is suspected.
That was the practice of the judges of the people of Madina. 'Umar ibn 'Abdu'l-'Aziz said, "People have new cases acccording
to the extent that they have new iniquity."
[ Dealings are established by the admission of the claimant or by the testimony of two just witnesses
or one witness and the oath of the claimant. "Suspicion" is in respect of the theft and usurper. "Dealings" is in business
and probability of suspicion is in unlawful appropriation or use of property.
[Hash.: The Mukhtasar says that "dealings" are established by a woman's evidence.]
The people of Madina agreed on the evidence, and it is singled out by the hadith where the Prophet,
may Allah bless him and grant him peace, said, "The claimant produces evidence and the oath is for the one who denies it."
The literal meaning of the hadith is that the oath is generally directed, but it is specific requirement that there were dealings
between them. That is because there are modern cases according to what people devise of new forms of iniquity which is stressed
by what 'Umar ibn 'Abdu'l-'Aziz said. Cases are decided according to ijtihad in that in which there is no text. There is no
doubt that 'Umar ibn 'Abdu'l-'Aziz was one of the imams who are imitated in word and deed. This is not contradicted by his
words, "Leave what the moderns innovate" because that is not based on the Book, Sunna or consensus.
38.1c. When the defendant refuses to swear
If the defendant refuses to take the oath, judgement is not given to the claimant until he swears
an oath to what he claims to the best of his knowledge.
[When he says "I will not swear", for instance. The claimant does not receive his claim simply by the
refusal of the defendant to swear. The claimant must swear to what he knows of the description of what he claims and its amount.
This is for a claim of identification. As for an accusation, as when he suspects a person of stealing property, the claimant
does not swear, but the defendant must pay when he refuses to swear. The oath is only taken by the claimant in a claim of
38.1d. The form of the oath
The oath is "By Allah, there is no god but Him." [Bi'll‚hi'lladhÓ l‚ ilaha ill‚ huwa]
[ This is the oath for all rights. Nothing is added or taken form this form. This is general to all
people, Muslims and Kitabis. It is said that the Kitabi only says, "By Allah." ]
[The later is the apparent position of the Mudawwana.]
38.1e. Where the oath is taken
He takes the oath standing by the minbar of the Messenger of Allah, may Allah bless him and grant
him peace, if it concerns something worth a quarter of a dinar or more. Outside of Madina, he takes the oath in the central
mosque at the most esteemed place in it. The unbeliever swears "By Allah" in a place he respects.
[ He takes the oath standing to make it harsh. If he swears seated, that is not adequate. This is what
is relied on it. The oath in Madina is taken at the minbar to deter the one who takes the oath. Other places, it is the Jumu'a
mosque, and at the mihrab. If he refuses to swear there, he is considered as refusing to swear.
The Kitabi swears in a place he respects. For a Jew, he would swear in the synagogue and a Christian
in the Church and a Magian in his temple.]
38.1f. Later evidence
When the claimant finds evidence which he did not know before after the defendant has taken an oath,
judgement can be given in his favour by it. If he knew of it before, it is not accepted. There is also a view that it is accepted.
[ Whether the evidence was absent or present, if it is close to the time, like about the length of
a week. Ibn al-Majishun said that judgement is given in his favour after he swears an oath that he did not know. If he knew
about it and it was present, then the evidence is not accepted in the well-known position. Ibn al-Qassar says that it is accepted.]
[Hash: He moves on to discuss testimony which is a fard kifaya. If there is only one
person capable to giving testimony, then it is an individual obligation. If he then refuses to testify in such a case, he
is disobedient and can be dealt with by beating and imprisonment. Testimony has different ranks. The first is testimony in
the case of illicit sex and sodomy. The second rank is dealt with here.]
38.1g. One witness and an oath in property cases
Judgement can be given on the basis of a single witness and oath in the case of property,
[ And that which leads to property, as when one of them claims that he has an option to withdraw in
a sale and the other that the sale was final. The statement accepted is that of the one who says it was final and the one
who claims there is an option must bring a witness and take an oath. It similar to hire, accidental wounds and recording.]
38.1h. Not for other cases
but one witness and an oath is not accepted in the case of marriage, divorce, and hudud punishments,
[This is the third rank.]
[Two witnesses are required in marriage, divorce and the hudud. It states in al-Mudawwana
that if someone claims he has married a woman and she denies it, he cannot take an oath to it, even if he produces a witness.
Marriage is only established by two witnesses. An example of that in divorce is when the woman claims that her husband divorced
her and she has one witness. She does not swear an oath with him and the divorce is not obliged. An example of that in the
hudud is that one man states that another man has slandered him and produces one witness. He does not swear with him
and there is no hadd.]
38.1i. Not in homicide or deliberate wounding
nor is one witness and an oath accepted in deliberate wounding or homicide. Homicide is only decided
by the qasama process. There is another view that wounds can be decided on that basis.
[ As when he claims that someone else has deliberately injured him and has only one witness. He does
not swear with him. The oath is offered to the accused. If he swears, he is free. If he refuses, he is imprisoned. If he remains
for a long time, he is indebted and removed. This does not mean that one judges in homicide by a witness and an oath along
is with the qasama about the life.
It is also said that judgement can be made about injuries by one witness and an oath in general, whether
deliberate or accidental. He presents this and it is well-known while putting the other first which is not well-known.]
[The view about accidental wounding being decided by one witness and an oath is because it
leads to property in the form of the blood money.]
38.2. Women's testimony
38.2a. Their testimony regarding property
The testimony of women is only permitted in respect of property.
[ And what is connected to property, like hire.]
38.2b. The weight of a woman's testimony
A hundred women count as two women. Two women count as one man. Judgement is given on the basis
of that with one man or an oath in cases where one witness and an oath are permitted.
[ That is like one man, since the rule that it is possible with an oath when in such cases.]
38.2c. Cases where women's testimony is accepted
The testimony of two women alone is accepted in matters which men do not observe, such as childbirth,
the crying of a new-born child and the like.
[ This is the fourth rank of testimony.
Their testimony is accepted in what men do not witness, like birth and the cry of a new-born. The fact
that he cries means that he was born alive and then he inherits and is inherited from. The like of that are things like defects
of the vagina and body. This does not contradict what he said about the testimony of women only being accepted in property
because that is particular to what we defined of his words.]
38.3. Rejecting a witness because of character or relationship
38.3a. Rejection of testimony
Neither the testimony of an adversary nor someone who is suspect is not allowed.
[ This is the testimony of an opponent against his opponent. Someone suspect is suspect in his deen
because of committing something not permitted in the Shari‘a. It is also said that his testimony is suspect.
[Hashiyya: This is an opponent for material gain which is not insignificant. It is
permitted if it is about something insignificant or it is a difference in the deen, as a Muslim testifying against an unbeliever.
It, however, there is a long-standing feud, it is not accepted.
As the evidence of an adversary is not accepted, it is not accepted against the mother, father or son
of his adversary, nor is his son's testimony accepted. Someone's testimony itself being suspect is when he is suspected of
bias in his testimony.]
38.3b. Acceptable witnesses
One only accepts the testimony of reputable witnesses.
[ Being reputable ('adala) is not that a man is investigated for obedience so that no act of
disobedience sullies it because that is impossible and only the true are capable of it. What is meant is he usually is obedient
to Allah and avoids wrong actions.]
[Someone who is 'adl is free, Muslim, sane, adult, free of iniquity, debarment due
to foolishness, and free of innovation. Innovation includes Mu'tazilites and Kharijites. Al-Qarafi said, "In our view,
'adala is Allah's right from the judge. He is only permitted to give judgement with reputable witnesses. Ash-Shafi'i said,
"Since it is Allah's right, even if the litigants agree to accept the testimony of an unbeliever or one with whom Allah is
angry, the judge is not permitted to give judgement on that basis." Ibn al-Qasim said that.]
38.3c. Those who have been punished for a hadd are not acceptable as witnesses
One does not accept the testimony of someone who has been given a hadd punishment nor the
testimony of a slave, child, or unbeliever. If someone who has received the hadd for illicit sex repents, then his testimony
may be accepted except in cases involving illicit sex.
[ This is when someone has not repented. If he repents, there is a text on that.
A slave's testimony while still a slave is not permitted because testimony is one of the ranks of the
Shari'a which obliges rights against another and a slave is not worthy of it. The limitation is only while he is a slave.
He can testify once he is free. The testimony of a child is not accepted although it can be accepted against another child.
The testimony of an unbeliever is not acceptable either against a Muslim or an unbeliever. If he was
an unbeliever and becomes Muslim, his testimony is accepted in what does not refer to the time he was an unbeliever. It is
not accepted after his Islam because he is suspected of removing the imperfection which his testimony rejects because of it
is natural human natural to seek to remove shame.
If someone repents of illicit sex, his testimony is not accepted in illicit sex. It is only accepted
in other cases than for which he received a hadd. This is general, even if he became the best person after his repentance.]
38.3d. Kinship bars testimony
It is not permitted for a son to testify in favour of his parents or vice versa, nor a husband to
testify in favour of his wife or vice versa. It is permitted for a man of good character to testify in favour of his brother.
[ The point is that the branch does not testify to its root nor the root to its branch. As for the
testimony of the branch for the branch of the root or the reverse, that is permitted as is the testimony of one of the parents
for one of the sons against another son if there is no bias for the one in whose favour the testimony is given. Otherwise
it is forbidden, as when a parent testifies for his pious son against the impious. A spouse cannot testify for the other spouse
while they are married or in a revocable divorce. The same does not apply once they are divorced.
[The point about root and branches is that the principle extends upwards to grandparents and
downwards to grandchildren.]
It is permitted for a brother in favour of his brother, but only in cases of property and injuries
which entail property, not that which would bring his brother honour or rank, like testifying that he married in such a way
that would bring him honour or rank.]
38.3e. Others whose testimony is inadmissible
One does not allow the testimony of a habitual liar, someone who openly commits a major wrong action,
someone seeking his own self-interest or seeking to avert harm from himself, or a guardian in favour of his orphan. A guardian
may, however testify against his ward.
[Hash: A habitual liar lies time and time again. A single lie has no effect. This is
also unlawful lying. As for permitted lying, as when it is done in an effort to make peace between two people with a feud,
that does not detract from his character.
[Someone who openly commits a major wrong action or commits a small of minor action which involves
baseness like stealing a morsel or stinginess about a grain in the measure. As for the minor wrong actions which do not indicate
baseness, like looking at a woman, that does not detract unless that is habitual.
It is not permitted for someone to testify for his own benefit, as when someone testifies for his partner
about something regarding shared property, as when one of the partners claims money from a man and that money which he claims
is part of the property of the partnership. His partner cannot testify for him because it would bring him benefit. Averting
harm is like when a man owes a debt to another and another man claims a debt and this one testifies that he paid his debt.
He is suspected of defending himself in the quarrel between him and the other claimant, so he will say, "I will divide the
property of the debtor with you," or "I will have it alone and you have no debt."
The same applies to a guardian because this is part of bringing about self-interest by his testimony.
The point is repeated because he can testify against him. The expression in the Mudawwana is that if someone cannot
testify in favour someone, is permitted to testify against him.]
38.4. Testifying to the character of a witness
38.4a. Such testimonial is not permitted from women
It is not permitted for women to testify to the good or bad character of a witness.
[ Neither about men or women. Their testimonial is not accepted in either case.]
38.4b. Form of testimonial about character
Declaring someone to have good character (tazkiya) is only accepted when someone says, "He
is reputable and pleasing ('adlun rid‚)." A single witness to the character or bad character of a witness is not accepted.
[ Justice is a firm form in the self which is compelled to have constant taqwa. One witness is not
accepted outwardly. ]
[Hash: Reputability is in action and pleasing means for testifying. It is said that
reputability it between a person and people, and being pleasing is between him and Allah.]
38.5. Testimony of minors
The testimony of minors may be accepted on wounds before they have dispersed and no adult has been
[ This is about what happens among them. Their testimony is also accepted in killing in the famous
position as well as in wounds, but only before they separate, out of the fear that they might be coached by an adult.]
[Hashiyya: There are further preconditions. They must be male, free and Muslim. Two
or more of them must testify and they must have the same testimony. The one who gives evidence must not be a relative of the
one in whose favour he testifies nor an enemy of the one he testifies against. They must have discrimination about the action.
They must have been in the same group. It is also said that the child must be at least around the age of ten.]
38.6. Sale disputes
When two parties to a contract disagree, the seller is asked to swear an oath and then the buyer
either accepts that or swears an oath and is free of the contract.
[ They may disagree about the price as when the seller says that it is a dinar and the buyer half a
dinar. First the seller swears. The School obliges that the seller begins with the oath and takes an oath denying the claim
of the buyer and confirming his claim in the same oath. He says, "By Allah, I did not sell it for half a dinar, I sold it
for a dinar." Then the buyer can take the goods for what the seller says, or swear to deny the claim of the seller and affirm
his claim. He would say in this example, "By Allah, I did not buy it for a dinar, I bought it for half a dinar." Then he is
freed of the binding nature of the sale, and he can choose between taking the goods for what the seller swore or swear and
be quit of the transaction.]
38.7. Ownership disputes
38.7a. Contention over ownership
When two claimants disagree about something in their possession, they swear oath and then the disputed
property is divided between them.
[ This is when each of them claims ownership and neither has any evidence nor proof of his truthfulness
and no one else contends with them in it, and it is part of which either of them can acquire. It is shared between them because
their claims are equal and one cannot be preferred over the other. If one of them refuses to take an oath, then his right
is cancelled in favour of the other.]
[If there are three, it is divided between the three.]
38.7b. When there are character witnesses
If the two produce witnesses, judgement is given in favour of the one with better character. If
the two witnesses are equal, then the two parties swear an oath and the property is divided between them.
[ If each of them has a witness who testifies for him and one of the dominates the other in justice,
then judgement is given in favour of the more just after he swears that he did not sell that thing nor give it him nor did
it remove from his property by any aspect at all. If neither witness is preferred, then the two witnesses must be the same
in justice and one does not prefer by number unless it reaches the level of mutawatir. They swear and the disputed
thing is divided between them because it is not more fitting to give judgement for one of them than the other.]
37.8. Retracted testimony
When a witness retracts after judgement, he is liable for any losses in which his testimony resulted
if he admits to perjury. The people of Malik said that.
[ Ibn Naji says that the apparent meaning of the words demands that all the people of Malik differentiated
between him admitting that he gave false testimony or not admitting it. In the first, he is liable but not in the second.
That is not the case, Mutarrif, Ibn al-Qasim and Asbagh said in the Wadiha that he is liable absolutely because the
error and deliberate regarding people's property is the same.]
38.9 The statement of an agent
38.9a. His statement is accepted
When someone says, "I have returned to you what you entrusted to me to pay" or "to sell" or "I paid
you its price" or "I have returned your deposit or your loan," then his statement is accepted.
[ As when he entrusts him with an amount to repay a debt he owes to someone and the agent does not
find him and returns it. If the one who entrusted him contends with him, then one takes the word of the agent since he is
a trustee. The same applies in cases of a deposit.
In all these cases the statement accepted is that of the one entrusted. It maybe that the author follows
what the shaykhs of the Mudawwana said when he makes a statement on it, his word must be accompanied by an oath and
so the statement accepted is when he swears an oath to it. ]
38.9b. Proof of delivery
If someone says, "I gave it to so-and-so as you commanded," and that person denies it, then the
one who delivered it must produce proof. Otherwise he is liable.
[ He must have evidence that he gave it to him, otherwise he is liable for it.
[Hashiyya: This is when the custom is to produce witnesses or he was commanded to have witnesses.
Then not having witnesses is negligence on his part. If the custom is not to have witnesses, then he is not liable, as this
is a case of acting according to custom ('urf).]
38.10. The statement of a guardian (wali)
The same is true in the case of an orphan's guardian. He needs proof about what he spent on them
or gave to them. If, however, they are in his direct custody, then he is believed about their maintenance when it seems probable.
[ This is when the orphans dispute with him about spending and claim that he has not spent on them
or they contest the amount he has spent when they were not in his custody as when he spent on them is feasible or well-known,
if they are in his care. That is because of the difficulty of having witnesses in the later case and so the onus is lightened.]
38.11. Amicable settlements (sulh)
An amicable settlement is permitted unless it leads to the unlawful. It is permitted in both affirmation
[ Unless it involves something forbidden in the Shari'a, like paying gold for silver on a delay. It
is permitted in affirming a sale, as when it is goods or animals and is settled for dirhams, or denial when he claims a house
and the defendant denies it, but satisfies him with something. It is permitted in contracts.]
[Hashiyya: Abu Dawud and at-Tirmidhi report that the Prophet, may Allah bless him and
grant him peace, said, "Reconciliation between the Muslims is permitted except for a reconciliation which makes the lawful
unlawful or the unlawful lawful." An example of the first is when about a house which is claimed for wine or pigs, and the
second is exchanging goods for a garment provided that one who takes it does not wear it or sell it."]
38.12. A slavegirl who marries claiming she is free
If a deceitful slavegirl marries a man on the basis that she is free, her master can reclaim her
and claim the value of any child on the day of the judgement.
[ She deceives him by her actual words or by giving the appearance that she is free to the one who
wants to marry her. The husband owes the minimum of what is named and the brideprice of a woman like her. The price of the
child is paid by the father since the child is not one whom the master has to free. If the master has to free him, there is
no liability for the deluded husband to pay the price of his child, as when she deludes the son of his grandparent and he
marries her thinking she is free and then he learns that she is a slave. The child is freed by his grandfather or grandmother.]
38.13. Establishing a claim to a slavegirl
38.13a. The right of the legal owner
When someone establishes his claim to a slavegirl who has borne (her new master) a child, he is
entitled to her value and the value of her child on the day of judgement.
[ The case is when she has borne a child to a free person who did not acquire her illegally, whether
by ownership, gift, inheritance, purchase or whatever manner of ownership. The real owner is entitled to the price of the
slavegirl and the price of the child on the day of judgement and the child is free and his lineage established. ]
38.13b. Other views
It is also said that he takes her and the price of the child, and it is also said that he only takes
her price, unless he chooses to take the price. If he choose to take her price, he takes from the abductor who sold her.
[ He takes her value on the day he had intercourse with her. All three statements are made by Malik.
He takes the price from the abductor when he chooses the price as is confirmed by the sale of the usurper.]
38.13c. If the usurper still has her
If she is still in the possession of the abductor, then he receives the hadd and the child and its
mother are slaves of her true owner.
[ If, after birth, the slavegirl to whom someone is legally entitled is still in the unlawful possession
of the one who abducted and he knows she is not lawfully his, then he receives the hadd because he had illicit sex.
The child is a slave since it is without father. It would have been better to say that the child is
ascribed to the lineage of the mother because it is connected to her and not him.
The ruling regarding someone who purchased her from the abductor, knowing about his abduction, is the
same as that of abductor: his lineage is severed when there is evidence that he knew before intercourse that she was unlawfully
38.14. Establishing a claim to land
38.14a. If land has been build on
If someone establishes his claim to land after it is has been built on, he should pay the price
of the buildings which are standing. If he refuses to do that, the buyer should pay him the price of the undeveloped land.
[ In the case of someone entitled to take land from someone who has bought it or someone else who has
not unlawfully acquired it after there are buildings, planting and the like on it, he can pay for the improvements and take
the land with its structures or the buyer can pay him the value of the empty land.]
38.14b. When the owner refuses either course
If the buyer refuses, then they become partners in the property according to the value of which
of them owns.
[Hash: One version has, "either of them refuses."]
[Or when either of them refuses to pay the other. They become partners according to the value of each
of them. If the land is worth 10 dinars and the buildings worth 20, then one owns two-thirds and the other one-third. One
assesses the value on the day of the judgement, according to the famous position, not the day of construction of the buildings.]
38.14c. The case of the usurper
A usurper, however, is ordered to remove his buildings, crops and trees. If he wishes, their owner
can be paid the price of the debris and trees, after deducting the cost of hiring someone to remove that. He owes nothing
for what has no value after it is uprooted or demolished.
[ It is not permitted for the two of them to agree to have that remain in the land in exchange for
rent because that would lead to selling crops before they are ripe in exchange for letting them remain because the owner would
be able to take it free of charge in the first division or by the value uprooted in this second division after it is sold
[Hash:. If the time for planting that land has passed, the owner does not command him
to remove the crop, but he is paid rental for that year.]
Then the trees can be taken as firewood. He is allowed to gives the owner the price of its debris and
crops. The like of that is that its price uprooted is 10 dirhams and the wage for removing it is four dirhams. He can pay
him six dirhams. He is not liable for things like engravings, or plants or trees before they are of any use.]
38.15. Increment in usurped goods
38.15a. Any increment must be returned
Someone who unlawfully acquired it must return any revenue, but no one except someone who has acquired
it unlawfully is obliged to return it.
[ This includes the thief, treacherous person, pickpockets and the like and all of those about whose
unlawful possession is clear without any uncertainty. That is also based on the words of the Prophet, may Allah bless him
and grant him peace , "The property of a Muslim person is only lawful when he is happy about it." The non-usurper is one with
a doubt, even if he bought it from an usurper when he did not know.
Since the child is not part of the revenue and he fears that it might be included, he continues:]
In the case of the offspring of animals and slavegirls, if they have children by other than the
(new) master, they are taken by the one entitled to the mothers from the person who purchased them or has gained possession
of them for some other reason. If someone unlawfully abducts a slavegirl and has intercourse with her, the child is a slave
and he receives the hadd punishment.
[ Other means would be like someone who was given her as a gift or sadaqa because the ruling of the
child is that of the mother since she is property of the one to whom she belongs and so the owner takes him. The usurper does
not owe the bride-price, but a fine for the lowering of her value due to intercourse.]
38.16 Building Regulations
38.16a. Responsibility of the owner of the ground floor
The owner of the ground floor is responsible for maintenance of ground floor as well as for the
wood of the ceiling and the support for the rooms above it when the ground floor becomes weak and dilapidated until it is
sound. He is compelled to make the repairs or to sell it to someone who will repair it.
[ This is when someone owns the rooms above him. If the ground floor becomes weak, it is feared that
the house will collapse. The owner of the ground floor must make the repairs since he is able to do that. He is responsible
for the wood of the ceiling and the supports. Since the solidity of the house depends on the occupant of the ground floor,
he must either repair it or be made to. If it is sold to someone else and he refuses to repair it, then must either repair
it or sell it to someone who will put it right.]
38.16b. Alterations not allowed
"There is no harm nor exceeding harm done." He must not do anything which will harm his neighbour:
like opening a window facing him by which he can see his neighbour, opening a door directly in front of his door, or digging
anything that will harm his neighbour, even in his own property.
[ This is a sound hadith. There is no harming the one who does not harm you. That is the meaning of
"no harm". There is no doing to him more than he does you and so exceeding his harm. As for the like of his action or less
than it, that is permitted as Allah says, "So if anyone oversteps the limits against you, overstep against him the same
as he did to you." (2:194) This is in relation to the common people. As for the great people and the elite, they meet
evil with correctness.
If there already is a window onto the house of the neighbour, he does not have to block it, but he
is forbidden to look at his neighbour from it so that the male can be distinguished from male. He does not open a door opposite
his neighbour because that would entail looking at the private parts of his neighbours. He does not dig something which will
harm him, even if it is in his own property, like digging a well next to his wall or his lavatory.]
38.16c. Judgement on a wall
Judgement on the ownership of a wall is given in favour the one whose house has wooden or masonry
joints in the wall.
[ Qumut means the wood or palm fibre joints put in the middle of a wall to keep it from breaking
and the masonry joints are stones which support the structure. The terms are interchangeable.]
38.17. Water Supplies
38.17a. Excess water
Excess water may not be denied in an effort to prevent people from grazing animals.
[ The form of that is that there is pasture next to water where some people camp, desiring to graze
in it and the owners of the water prevent them from getting water so that they will leave their pasture.]
38.17b. Use of wells
People with wells for their livestock have the first claim on water for their animals and then the
rights of other people are the same.
[ The animals of the people who own the wells water their animals and then the animals of the travellers
can be watered. People are equal in the right to the water afterwards.]
[When the well are not on private land, and there is a conflict between those who dug the
wells and travellers.]
38.17c. Springs or wells on private land
If someone has a spring or well on his land, he may prevent others from using it unless his neighbour's
well has caved in and he has plants he fears he will lose. Then he cannot deny him his excess water. There is disagreement
about whether he can take payment for that or not.
[ Or if the well dries up. In this case he is obliged to let his neighbour use it with three preconditions.
The neighbour has crops which depend on water, his well has collapsed and he fears the crops will be lost and he has begun
to repair his well without delay. There is disagreement about whether he can take payment for that. It is related from Malik
that he does, and it is stated in the Mudawanna that he does not. The reason is that it is an obligation to give the
excess of water by way of help, so he should not take payment for it. The reason for the first opinion is that he uses the
property of someone else to revive his own property.]
[Hash: The relied on position is that he does not take payment.]
38.18 Another building regulation
Someone should not refuse to allow his neighbour to insert beams into his wall but he cannot be
compelled to accept that.
[ The meaning is that it is recommended. It is confirmed that the Prophet , may Allah bless him and
grant him peace, said, "No neighbour should prevent his neighbour from inserting a piece of wood in his wall." It is recommended
which is why he says that he cannot be compelled. That indicates the refutation of the position of Ibn Kinana and ash-Shafi'i
that he can be compelled.
[Hash: The prohibition is one of dislike.]
38.19. Damage done by animals
If livestock ruin crops and gardens during night, the owners of the animals are liable for that.
They do not owe anything for damage done during the day.
[ The details of this are in the Muwatta' and elsewhere. It is related from the Messenger of
Allah, may Allah bless him and grant him peace, that the owners of a garden must guard it in the day, but what animals damage
in it at night is the liability of the animals' owners. The place of the liability for what the animals destroy at night being
that of their owner is when there is no shepherd with them. Otherwise it is the shepherd who is responsible.
[Hash: This is when he lets them loose at night and does not die them up. If he ties them
up, he is not liable. It refers to animals which are normally tended, and not creatures like bees and doves for which they
are not liable. When he is liable for damage, he pays the value or replaces what has been destroyed.
38.20. Bankruptcy claims
If someone finds his goods in the possession of someone who has become bankrupt, he can either take
his share [with the other creditors] or recover his actual property if he can identify the individual item. If, however, the
debtor has died, he must take his share with the rest of the creditors.
[ If he finds his goods which he sold to a man which are not lost and for which he has not been paid
before the buyer goes bankrupt, then he has this choice. He either shares with the other creditors in the property as a whole
and takes his share or, if it is something like an animal or a slave, he can recover it. If it is something like wheat, he
can only take a share. If the bankrupt person has died, and he has not received the price before the buyer dies, he is not
more entitled to his goods than the other creditors. He must take a share.]
38.21. Guarantee of debts
The one who gives a guarantee is liable, and the one who guarantees the appearance of the debtor
is liable if he does not bring the person unless he stipulated that he would not be liable.
[ When he is unable to fully satisfy the creditor. If someone who guarantees an appearance fails to
bring the debtor present at the time he is required to bring him, if is liable for the amount the debtor owes unless he stipulated
that that was not binding for him to be responsible for the money if the debtor failed to appeared. Ibn 'Umar stated that
if he is able to bring him and neglects it, then he is liable.]
38.22 Transfer of Debts (Hawala)
38.22a. A transfer is not revocable
If someone agrees to have his debt transferred to a third party, he cannot go back to the first
debtor, even if the third party becomes bankrupt, unless the first one deceived him.
[ If he deceives him, that means that he knew that the person to whom it was transferred was insolvent
and still transferred it to him. If that is the case, the original debtor is not freed of responsibility and the debt reverts
to the first debtor.]
38.22b. The transfer
The transfer is based on an original debt. Otherwise it is a guarantee.
[ If it is not on the basis of a debt, then he is a guarantor, i.e. responsible, because a transfer
is transferring the responsibility for a right to the responsibility of another. If there is no basic debt, there is no transfer,
even if the term "transfer" is used. The point of that is that the creditor can go back to the original debtor who is not
free is liability by that because the guarantee does not eliminate the responsibility of the one guaranteed. It is another
liability. If it had been an actual transfer, he would be free of responsibility and the one who transferred it would not
be able to return to him.]
38.23. More on the guarantee of debts and bankruptcy
38.23a. When a guarantor must pay the debt
A guarantor is not liable except in the bankruptcy or the absence of the debtor.
[ This refers to his words that the guarantor is liable. The situation in which he is liable is the
absence of the debtor when the creditor has not ready money with which he can pay the debt. If he is absent, but not far away,
he is considered as present. Then he is not liable.]
38.23b. In case of death or bankruptcy
The death of the subject or his bankruptcy makes every debt he owes immediately due, but not debts
which other people owe to him.
[ What is meant bankruptcy is when a judge orders the stripping of his property, not just the position
of creditors. That which is deferred is not immediately due. As for deferred debts becoming due by death, that is because
the debt is attached to blood, and it is ended by death and the creditor no longer has a connection to liability. Therefore
what was deferred becomes due immediately and the liability moves to the legacy because it is not connected to other than
the two. When one is gone, only the other remains.
As for its becoming due by bankruptcy, it is because the creditors made their agreement based on full
responsibility, and that is destroyed by bankruptcy and so that no longer remains.
The debts that others owe him do not become due by his death or bankruptcy, because their place, which
is the responsibility, still exists.]
38.23c. A slave with debts is not sold to settle them
A slave permitted to trade is not sold in order to discharge his debts nor is his master prosecuted
[ The master is only prosecuted if he tells them, "Employ him" and they do so.]
38.23d. Detaining a debtor whose financial situation is unclear
A debtor may be imprisoned until he is cleared. He is not imprisoned if he is known to be insolvent.
[ He is imprisoned until his state is known. When his insolvency is confirmed by the testimony of two
just witnesses who testify that they do not know that he has money either public or hidden. Then he is not released until
he takes an oath that he has no wealth either outward or hidden and his oath is absolute and he does obtain property, he will
pay his debt, even if he any beyond his immediate needs.]
[Hash: Someone who is well off and refuses to pay his debts is imprisoned and flogged time
after time until he pays what he owes. That is at the discretion of the judge.
A man is imprisoned with other men and a woman is lodged in the protective custody of a trustworthy
38.24. Apportionment of jointly owned property
38.24a. Division of property
Buildings and property which can be divided without harm are divided (in case of dispute).
[ Such property includes animals, goods and measured and weighed things. This is when there is a dispute
and some of the owners want to divide it and some do not. The one who refuses to do that is compelled to do it.]
38.24b. Enforced sale
In the case of something which cannot be divided without harm, if one party wishes to sell it, the
other partner can be compelled to sell it.
[ This is something like a single slave. If the object would be destroyed by division or would be harmed
by it, like a pair of leather socks, when division would destroy its use. If the partners contend about any of that and are
not happy about using it jointly, and one wants to sell it while the others refuse to do that, they are compelled to sell
it because it is not possible to divide it to end the dispute. Therefore it must be sold in order to end the dispute.]
38.24c. Division by lots
Division by lots is only done with the same category of thing. None of the partners can be given
a price [while the other takes the goods]. If they decide to equalise the shares, the division is only permitted when they
both consent to it.
[ It is not permitted to draw lots when the items consist of two categories and or disparate types,
like apples and peaches. Each category is put on its own so that there no clear uncertainty in the lots. There is no paying
a price since that would result in the existence of two different categories and lots can only be used in the same category.
[Hash: Ibn al-Hajib adds that the property on which lots are drawn is shared property.
Each category is divided on its own. You cannot have one lot consist of houses and the other a garden, for instance. Doing
that would involve uncertainty (gharar).]
An example of equalisation is when there are two garments. One is worth two dinars and the other worth
one. Lots are drawn for them, and the one who gets the garment worth two dinars gives the other five dirhams to equalise them.
That is only permitted with mutual consent as when one says the other, "You have a choice: either you choose that whose value
is two dinars and give five dirhams or you take that whose price in one dinar and take five dirhams."]
38.25. Function of an executor (wasi)
38.25a. Appointing an guardian-executor
A guardian appointed by the original guardian is like the guardian. A guardian can trade with the
property of orphans and arrange the marriage of their slavegirls. If an untrustworthy guardian is appointed, he may be removed.
[ If the basis is appointment by the father, not by the Qadi. If he is appointed by the qadi, then
he cannot appoint someone else. He cannot buy his property himself. If he does that, the ruler should examine the sale. If
he sees in good in it, he allows it, Otherwise, he cancels it.]
[Hash: The executor must be Muslim, adult, sane, legally responsible and reputable.]
38.25b. The sequence is which the estate is dealt with
One begins with the cost of the shroud, then paying debts, then paying bequests and then inheritance.
[ After specific requirements like the umm walad and woman whose emancipation is stipulated at a certain
term and the like. Then comes the cost of the shroud and then debts which are firm by evidence or admission when he was healthy
or ill, but that is when there is no suspicion. Then the bequests are paid and finally the inheritance is distributed.]
38.26. Squatter's Rights
If someone lives in a house belonging to someone else for ten years, it then becomes his if the
owner was present and then did not claim anything from him. Living in the house of a relative or in-law this for this period
of time does not establish this for him.
[ Or it can be land which is more general. The owner being present means present and sane, and not
a relative or a partner. The owner must know about his occupation and his ownership. If he does not know and says, "I did
not know it was my property while this person had it and I only just found the documentation with so-and-so," or he is an
heir and claims that he did not know that it was his property, his word is accepted.
[Hashiyya: Hiyaza, which includes the claim to the right of possession. Such
claims do not extend to animals and goods]
This is when he does not claim anything and nothing prevents him from claiming. If the squatter has
a force and he stays, even a long time, the claim is heard. After that time his evidence is not heard because custom denies
it since he was silent about the claim for this entire time outside of the right of Allah. If it is Allah's right, it is not
lost by occupation, even for a long time, as when someone occupies the road of the Muslims or a part of it or a mosque or
a place which is a waqf for someone else.]
38.26a. Debt owed to an heir
It is not permitted for a sick person to admit to a debt owed to an heir or to state that the heir
has paid him a debt he owes him.
[ This is in an illness from which it is feared that he might die. He cannot affirm the debt which
he owes by simple admission or say that he has been paid a debt as when he says, "So-and-so is owed such-and-such", and the
form of its admission of taking it is that he says, "I took the debt which I am owed." This is because there is the suspicion
that if his heirs consist of his daughter and nephew, there is basis for his daughter and so one judges by suspicion and his
affirmation of taking it is only because of his love for her.]
38.26b. A bequest to perform hajj
If someone leaves an instruction in his will that the hajj be performed (on his behalf), his instruction
is carried out, but we prefer a bequest of sadaqa.
[ This is paid out of the disposable third. The Malikis prefer sadaqa to a bequest for hajj because
there is no disagreement about the deceased benefiting from sadaqa whereas there is disagreement between scholars about whether
the deceased benefits from the hajj. The position of Malik is that it is of no benefit for him.]
38.26b. Someone employed to perform hajj
If the one hired to make hajj dies before completing it, he receives the fee for the amount he travelled
and the rest is returned. What he spent is his liability, unless he took it on the basis that he would be paid on completing
it. Then the liability is that of those who hired him. If anything is left it is returned.
[ This is when he dies on the way to Makka or before completing the practices of hajj. He is paid according
to the distance he travelled in respect of difficulty or ease and fear, not simple distance. So a quarter of the distance
may be equal to half the wage. The rest is returned because he is only entitled to the wage by completing the task. He is
liable for as spent because it is recompense for the task.
In the second case the liability is that of the hirers since they were negligent in not stipulating
liability which is more careful. The form is that he is given money to make hajj and it is his if he completes it, and he
has nothing if he does not.]