Book of International Law (al-Siyar) Holy war (al-Jihad) which has been started from our side is fard kifayah (a community duty);if some of them fulfils the requirement,the whole society is exempted;otherwise the whole society becomes sinful. It is not the obligation of a minor,a woman,a slave,a blind and one whose hands are chopped off. If the enemy attacks,then it is fard ain (personal duty of each muslim).Thus a woman and a slave goes out to fight without any 207 / permit from her husband and the patron. To levy a tax on the people for this purpose is repugnant,if there is sufficeint amount in the state budget;otherwise not. When we besiege them,we invite them into Islam,if they accept Islam,that is better.If they do not accept,then we invite them into the poll-tax (al-jizyah),if they are eligible to that. It is to be explained to them,if they accept it,how much is that and when it is due.If they accept they have rights what we have as muslims and they are responsible for the things we are responsible for. To fight with a person whom a divine invitation did not reach is disapproved until we invite him to Islam.It is good to repeat the invitation to one who already got the invitation.If they refrain we trust Allah and fight with with them by fixing ballistas,firing,watering,cutting down the trees,destroying their crops. We shoot them,even if they use the muslim captives as their shields,we im the infidels. It is not good to take the women and Qur'ans in an operation in which wno one is sure,bu t it is not bad to take them in an army in which every body is assured. It is not also disapproved if a non-believer citizen of non-muslim state who is visiting the Muslim State, takes with him the Qur'an to the infidels,provided they fulfil their covenant. It is prohibited to make oppression,to steal from the booty,to cut off the noses and ears,to kill woman or and the ones who are not responsible islamically,or ald people,or blind,the patients unable to walk,or whose right hand is cut off,except if any one of them is able to fight,or has a plan of fighting or wealth by which he encourages to war or he is the head and chief. 208 / It is also prohibitedto kill the infidel father,the son has to shun to do that,some body else kills him,except in a case of infidel father attempts to kill the son and he was unable to defend himself except by killing him. It is allowed to make peace with non believers if there is a public interes in that and to take some amount of compemsation for tis reason,if we are in need of it.That is considered the poll-tax if it was before the reaching their lands,and as booty if it is after that. To give some money or any thing else in order to get infidels' consent for peace is not allowed,except in case of fear of perish. The apostates are to be made peace without taking any thing.If any thing has been taken,that will not be rerurned to them. Whenever the peace is going to be broken,they are to be informed for that.Any one who begins from them betraying,he is to be killed only;if it happens by their unanimous intention or by the permit of their head (king),then all of them are to be killed without any information to be given in advance. No gun,horse or iron is to be sold to them,even after the peace is established. No business of important materials are to be trade with them. A fere man or woman has the right of granting protection (aman) to any infidel or a group or the people of the castle.And it is prohibited to kill them. If there is any harm for muslim in that,the imam informs the invalidity of the protection garan and the grantor is to be taught a lesson. Any aman given by a zimmi,or a captive or a trader who is among them is void. It is also invalid a protection given by one who accepted Islam but did not mgrate to the Muslim State,or he is insane or minor or a slave,the latter two having no permit to fight,according to 209 / Muhammad their aman is valid.And Abu Yusuf is with him according to one report. Chapter on the Booties of War Imam will divide the booties of the reginons conquered with force among the muslims or leveaves the native people on the land and levies the poll-tax upon them and the land tax (al-kharaj) too upon their farms. He kills the captives or enslaves them or leaves them free on behalf of muslims.Their acceptance Islam does not prevent them to be subjugated to slavery unless it takes place before their capture. It is not allowed to return them to their country or leave them free or against some money.It is said that there is nothing wrong to leave them against some money if it is needed.But according to two imams the latter way is permitted in captures. The livestocks which are difficult to transport are to be slaughtered and burned and they are not to be amputated by swords. The arms which are not easy to transport are to be burned up. No division of the booties in war except for a depositorry reasons.Then tehy are to be returned to the state budget. No booty can be sold before division.The actual fighter and assistant are at the same level in the booty.The support units who joined before taking the booty to our muslim land are also at the same status. There is no right of getting booty for the trader who does marketer who does not fight.Also no share for one who dies in the non-muslim land before taking it to our muslim land.If he dies after the booty has been taken to our land,his share will be inherited. One may benefit before division by using the arms,riding and 210 / wearing,provided it is needed;and also by hay,woodand any type of parfume;it is said that if it was needed.No benefit is allowed at all by selling,appropreating and also not after going out from non-muslim land. Any thing left after using is to be returned back to the budget of the booty;if he benefitted from the remaining part,its value is to be reimbursed.If it was divided before the remaining part has been returned,then he givs it as charity if he is rich. Any one who accepts Islam before the capture,he gets hold of himself,his child,any property he has with him or is trusted to a muslim or a zimmi. His lasnd is the booty.It is said that there is conflict of views in this matter viewed by Muhammad and Abu Yusuf )the latter in his first view). His adult child,his wife and the fetus she carries in her womb,his fighting slave and his property usurped by or entrusted to a non-muslim citizen of a non-muslim state are also included in the booty. Also his property in a muslim or a zimmi based on usurpation is tha part of the booty.The two imams are having adissenting opinion.It is said that Abu Yusuf is with Imam Abu Hanifah. Chapter The booty is to be divided as for infantry one share and for the mounted fighter double share.According to two imams the latter will get three shares as one forhim and two out of the three for his horse.No share is to be given to more than one horse.According to Abu Yusuf two horses are to be alloted shares. Turkish horses are like the arab horses. 211 / No share are to be alloted neither to a camel nor to the mule. The criterion for being mounted or infantary is his status while he passes the border gate. The imam has to inspect the army during their eitrance into the non-muslim land to know the mounted and the infantary.Any one who passes it being infantary,then he buys a horse,he will get the share of the infantary.Any one who passes riding a horse,then his horse perishes,he will have a share of the mounted fighter. Any one who sells it or donates it,leases it or pawns it his share according the clearest view is the share of a infantary. It will be the same if the horse sick or baby horse,so that no one may fight on it. No share is to be assigned to the slave,mukatab,minor,woman or zimmi;but they will be given some thing according the imam's view,given that they fight or the woman cured the wounded soldiers,or zimmi pointed the women of the infidel enemies or the way. One fifth of the booty will be for the orphans,needy people,wayfarers.The needy ofsprings of the Prophet Muhammad are to be preferred in each group respectively.The rigch ones have nothing to get.Allah's name was mentioned (Surah al-Anfal,verse 41) for blessing purposes. The share of the Prophet Muhammad (pbuh) is annuled by his death like his feature of getting the best of the booty for himself. The ones who enter the non-muslim state without any authority 212 / from imam and having no defense or securityforces,if they get any thing from there.that will not be taken into the fifth system.If that happens with permit of imam or they had the security forces,it will be put into the fifth system. Imam has the right of giving each one of the fighter some thing from the booty before the the getting hold of the booty and before the war is settled.Imam says any one who has kills any enemy,he gets what the enemy had on,or any one who gets any thing,he will get one fourth,or he says to the infiltration unit " I alloted you one fourth after the fifth". He doe not give in advance all what has been received and also nothing will be given after the booty has been got hold,except from the fifth. If imam does not declare that the killed persons belongings are alloted to the fihter who kills him,then all belongings go to the whole fighetrs. The personal belongings of an enemy (salbuhu) here,are what he ride on,wht he has on his horse,his cloth,his arms and what are attached to the arms.What his slave has on another horse is not included to this. Allototing in advance (tanfil) is to elininate any one else's claim of right but not for the ownership,imam Muhammad has adissenting view. If the imam says "any one who gets a she-slave,she gets her",the it is halal to make sex with him.Also selling is not allowed before getting hold of the bboty,imam Muhammad has a opposing view. Chapter on the Invasion of the Disbelievers If turks caprure the greeks and get their propeties,the ownership goes to them.And we get the ownership of what we got hold,if we defeat them,if they defeat us and got our properties and take them to their country,that becomes their property.And also it belongs to them any camel which escapes from us to them. But when we attack and defeat them any one of us who finds his 213 / property,he takes it free before the division of the booty. But after division if it was a standard and similar type of property (mithliy) he will not get it,but if it was some property which is to be evaluated independantly (qiyami),he gets its value. If any trademan purchases it from them and takes it to his own land,that is the property which is to be evaluated.He gets it by paying the price,if he bought it,if he got it by exchange,the the value of the proiperty he gave against it. If it was donated to him,then it s value. Ther same thing in the standard same type of materials in case he buys it by paying the price or exchanging the materials. If he purchases it by its type of the material or it was donated to him,he does not get it. If it was slaves whose eyes have been put out in the hand of the trader and he got its blood money,he gets him by paying the whole price,if he wishes. If tehy caprured him from the dominion of a trader who purchased him from an enemy who had bouhgt from another trader,then first buyer gets him from the second buyer by paying the price,the the owner will get him by paying double prices.He will not get him from the second buyer. The non-belivers will not own our free people,our mudabbar slaves,our umm walads and our mukatabs.But we own all of them from tehir community. They will not have a slave who escaped to them,the owner will get him free after the division.But his price is to be paid of from the the state budget.According to two imams he is like the captive. If the slave escapes with a horse with the things and some body bought all of them and took them to his country,the owner gets all of them except the slave by paying the price,and he gets the 214 / slave free.According to two imams,the slave is also to be taken by his price. If a non-believer who has aman purchases a muslim slave and takes him to their country,he becomes free;the two imams have a dissenting opinion. If one of their slave is converted to Islam over there and then comes to us or we overcome to them or he joins to our army,then he is free. Chapter on one who has aman (musta`min) If a muslim business man goes to non-muslim country with a passport,it is not lawful to him to get hold any thing from their property or to touch their body with any harm. If he takes any thing and brings it here,then he gets it,but in unpleasant way,then he gives it as charity. If their king oppresses them and seizes their properties or imprisons them or any body else does it with the knowledge of the king,then it is lawful for the muslim to get hold it as is the captive. If a harbi accredits in non-muslim state a muslim passport holder or a non-muslim citizen in his status,or one of them gets some thing from other by force and then they both come to us,nothing is to be decided. It is the same law to be applied if the two harbis does like that and come to our country as musta'mins (having aman status).If they come to us as muslims,a decision is to be given as debt but not as usurpation. If a harbi converts to Islam after a muslim got some thing from him by force,then both of them come to us,fatwa is to give it back from the point of religion. If on f the two muslim musta'mins kills the other one in non-muslim state,he has to pay the blood money from his property and also fulfils the kaffarah penalty in the murder by mistake. 215 / If both of them are captives then there is nothing but kaffarah penalty in the murder by mistake.According to two imams they are like musta'mins. There is nothing to be observed,but kaffarah,according to unannimously accepted opinion, in the case of a muslim murders by mistake in non-muslim country another muslim who accepts Islam and does not immigrate to the muslim country. Chapter No musta'min will be given a authrity to satay here in our country one year.It is to be told to him "if you stay one year,we will levy upon you poll-tax".If he stays a year,he becomes a zimmi and he will not get permit to go back to his country. It is the same law to be followed if he is told "if you stay here a month" or the like,and he stays there,or he purchases a lot of land and some land tax is levied upon it and he has to pay one year land taqx beginning from the time of leviying the tax or a musta'mina woman married a zimmi man. Bu it is just opposite if he marries to a zimmi woman. If he returns to his country,then he may be murdered with no penalty. If he had any property deposited to a muslim or a zimmi or a credit to be paid to him by these last two,he fell captive or muslims defeated the enemy,in which he was and he was killed, the credit gets void and his deposited property becomes part of the booty.If he is killed ,but muslims could not defeat and got hold them,or he died,the property and the credit go to his relatives. If a hrbi comes to the muslim state havin aman,he left his wife and chilkdren in his non-muslim country and he got some property 216 / with a muslim,or a zimmi or a harbi,then he converts to Islam here in Muslim state,then muslims dfeated the non-muslim state,all of them are the booty.If he converts to Islam there,then comes and then they are defeated,then his son is emancipated muslim. His property which is deposited to a muslim or zimmi,goes to him and the rest is the booty. If a muslim who has no guardian is murdered by mistake or a musta'min converts ti Islam here in muslim country,imam has the right of getting the blood money from guilty's aqilah (the ones who are obliged to pay it from his relatives ect.some kind social security circle).But in intentional murder imam has to retaliate or getiing the blood money.He has no privilige of forgiving him free. Chapter on one tenth land tax (al-`Ushr) and the tax of the lands of non-muslims (al-kharaj) The land of Arab is the land of one tenth land tax.That comprises the lands between al-`Uzaib and Aqsa Hajar in Yaman,Mahrah upto the border of Sham (Damascus),also Basrah and all of the lands of which the people has accepted Islam or was conquered by force and distributed among the sharers of the booty. The land os Sawad is a land of land tax (al-Kharaj,kharaj),that is an area among al-`Uzaib to `Aqaba of Halwan,from al-tha`labiyyah or al-`Alth to `Abbadan.Also the land which have been conquered by force and the people thereof was left there or they were part pf the peace with exception of Mecca. The land of Sawad is owned by its people,they may sell it and dispose in it as they wish. If a no man's land (ard al-mawat) has been revived (ihya') the criterion of its being close to kharaj or Ushr land is to be 217 / effective according to Abu Yusuf,the water it is watered with,either water of Kaharaj land or Ushr land, is to be considered. Kharaj is two types: Kharaj muqasamah,that is related to the fruit and crop like a tenth of it. Kharaj of fixed amount,it is not to exceed on what Umar,radiya Allahu anhu,levied upon the land of Sawad.That is one sa` of wheat or barley and one dirham for each land of agreculturally good land of jarib ( aunit of measuring the land). One jarib of the greens five dirham,adjascent one jarib of vineyard or palms,ten dirhams,for other fruits like saffron and gardens what the land may afford,and the maximum of affordability is the half of the product. IF the land can not afford what was levied on,it may be decreased.That will never be increased,even if it may afford it according to Abu Yusuf.Imam Muhammad has a dissenting view in this point. There is no obligation of paying kharaj,if the water ceases from the land or it may flood it or the crop is inflicted by a calamity.But it is to be paid if the owner neglects tocultivate it. Itis sataus will not change if he accepts Islam or a muslim purchasee it. No tenth tax is levied upon the product of the land of the kharaj. No double tax of the fixed kharaj is to be paid by the harvesting on the same land more than one,this being contrary to ushr and kaharaj muqasamah. Chapter Jizyah (al-jizyah) if it was levied by the common consent or by a treaty of the peace,,it is not to be changed. 218 / If the land was conquered by force and its people were left there,it is to be levied on the obviously rich people fourty eight dirham annully,on the bverage non-believer half of it,and on the the poor who is capable to earn one fourth of it. Jizya tax is to be levied on the People of Scripture,fire-worshipper and non-arab idol-worshipper (not on ara idol-worshipper).And also not on the apostates,nothing but acceptance of Islam is wanted from the latter two,or a sword will be applied to them.The women and the children of the last two are to enslaved. No jizyah on the minor, woman, slave,cripled,blind,limb,poor who can not earn,minister who does not socialize. It is to be taken at teh beginning of the year, monthly istallments are to be taken in each month. Jizya ends with the conversion to Islam or death. It fets void by the passage of a year without being paid.The two imams oppose to this opinion,that is contrary to the kharaj land. No new church or synagog or fire-worship temple is to be erected in our land of Islam.The one which is runied may be restored without transporting it. A zimmi mus be different in his/her clothing,riding vehicle and sadle.He has no to ride on horse,he has not to manifacture the arms.He has to wear and show a special belt of christendom (al-Kustij).He may ride on sadle like the donkey's simple cloth put on the bakc of it. The truest way is not to allow a zimmi to ride on any vehicle (markab),except for the necessity.And in this case also he has to 219 / get off the vehicle when there is a gathering of muslims. He has no to wear the uniforms assigned to the men of science,piety and honour.The she-zimmi (zimmiyah) is to be differentiated in the streets and public bating places (hammam). A sign must be put on house of zimmilest it may be asked forgivness from Allah for him. No body beginn with salam to the zimmi.The roads are to be narrowed him. He has to pay jizyah tax while standing,the receiver must be sitting.He will be held from his collar and shaken told " o zimmi,o enemy of Allah,pay uour tax".Any agreement made with him is not to be invalidated by his decline from paying the tax or his involvement with adultery to a muslim lady,or his being guilty from murdering a muslim or his cursing the Prophet,pbuh. Bu the covenant has been considered broken by his joining to non-muslim state his overcome on a place to fight with us.thus he becomes like the apostate. But if he falls captive,he is to be enslaved whereas an apostate is to be killed. A double of zakah is to be taken from the man and woman (not children) of the ribe of Bani Taghlib.The manumitted old slaves of this tribe are to give just jizyah. Kharaj of their land is like the the duties of manumitted people of Quraish. Kaharaj,jizyah,waht hase been taken from Bani Taghlib,or from the lands of which the people have been banished,or the people of non-muslim warrior country donated or have taken from them without any fight are to be spent for the public interes of the muslims,such as repairing the walls of the castle,building the bridges (any type of them.translator),satisfying the needs of the 220 / muslim scholars,teachers,religious leaders (mufti),judges,tax- collectors,the army and their offsprings. Any who passes away in the middle of the year looses his share out of that. Chapter on the Apostate Any one who apstatizes (irtidad),God forbid,he will be invited to Islam and his doubts will be solved,if there was any. If he asks for any time,he will be imprisoned three days,if he repents,very good,otherwise he will be killed. His repentance wiil be hi declarion of that he rejects all religions except Islam or the religion to which he has been converted. To kil him before the invitation is some thin unethical.No compensation is due for that. His dominion upon his property and wealth is is suspendedly removed;if he accepts Islam,it may come back.If he dies.or is killed,or joins to non-muslim warrior country and averdict passed by judge about his joining to that country,his mudabbar slaves and umm walads get emancipated,his debts become automatically due,his wealth which he aquired in Islamic period goes to his muslim heirs and he aquired in apostasy is the booty. His debt of islamic period are to be paid from his muslim aquirements,his apostasy debts are to be paid from the wealth he gained in the apstatic period. His selling,purchase,leasing,donation,pawn,manumission,tadbir and makatab of his slaves and his will dets suspended;if he accepts Islam,those are vaild.If he dies,or is killed or a court judgment is giving about his joining to the non-muslim state,the above law is to be applied.Thew two imams say that his ownership on his wealth does not get suspended.His debts are to be paid in all cases from both of the aquirements (islamic and apostatic),and 221 / both of them go to his muslim heir. Imam Muhammad applies the criterion of his being heir beginning from apstate's joining to the non-muslim state and Abu Yusuf beginning from the judgment related to it. His transactions are valid,none of them gets suspended except the totally equal type of partnership (al-mufawadah).But the vailidity here is as totally competent person according to Abu Yusuf and as some one who is sick according to Imam Muhammad. It is unanimouslyy accepted that he becomes the father of his umm walad,his divorce is valid,but his marriage ind his slaughter are invalid,his totally and equally shared partnership gets suspended,his muslim wife inherits him if he dies or he is murdered while she is in her waiting period. If he returns as muslim after a decision has been passed about his joining to the non-muslim state,he takes what are left in his heirs' hands. But the manumission of his mudabbar and umm walad can not be reversed. If he returns before the judgement,he is like one who does not apostatize. A woman apostate will not be killed,she will be imprisoned until he she repents and she is to be beaten every day. She-slave is to be forced by her patron,all her transactions in her property are effective,all her aquuarements are for her heirs if she dies,her husband inherits her if she apostetizes while she was sick. But he will not get inherit if she apstatizes while she is healthy. Her murderer is to be punished by a discretionary penalty only. All other laws are like a man. If the she-slave of an postate gives birth to a baby and he recognizes the baby,a blood relation and her motherhood get legally established. The baby is free by all means,if the mother is muslim,and also if 222 / she is christian,except in the case if she gives him birth in a period exceeding half of the year since the the husband's apostasy. If he joins to non-islamic state takenig some property and then he is captured,then the property is booty. If he joins,then returns and then goes back and after that he is captured,his property belongs to his heir before the division. If he joins to the non-muslim state and a decision is passed that his slave belongs to his son,and the son made mukatabah for him,after that the convert comes back as muslim,the price of mukatabah and wala' will go to him. Any one who is killed by the convert by mistake,and he was murdered while he is apostate or joined to non-muslim country,his blood money will be paid from his muslim aquirement,the two imams say that any type of the aquirements are good for that. Any one whose hand is cut off intentionally,if he apostatizes,God forbid,and dies because of that,the half his blood money will taken from the cutter ang given to his heirs. If he becomes muslim without joining,then dies the whole blood money and according to Muhammad the half will go to the heirs. A mukatab apostaizes,and joins to the non-muslim country,then taken with his property and killed,the price of mukatabah will go to his patron,and the rest will go to his inheritants. Thge coples apostatizes and joins to non-muslim land,then the wife gives birth to alady,then the child gets a child,after that they were defeated,both of the children are booty and the first child will be forced to accept Islam,but his child (second child). If a minor sane child accepts Islam,that is valid,also his apostasy,Abu YYusuf is of the dissenting opinion.He is to be forced to Islam,but will not be killed if he avoids it. 223 / Chapter on The Belligerents If a muslim group declares disobedience against the imam and overcome on the city,he is to call them to return and to solve their doubts.Then he statrts fighting with them,if they are all together.It is said that he does not until they start. If they are a team,wounded ones among them will be murdered and the fugitives will be chased,otherwise they will not be like that. Their ofsprings are not to be capivated and their property is not to be divided,but to kept intact until they repent abd it may be returned to them. It is allowed to them to use their arms and horses if they need. If a belligerent murders any one like him,then he is captured,nothing is due. If they seize a city and some of them murdered some one else from them willingly,he is to be murdered if the city is captured. If a just person murders a belligerent whom he inherits from,he gets his share from inheritance,if it is just opposite the belligerent will not inherit him,except if he claims it was done for the justice and truth.According to Abu Yusuf,he will not inherit him in any condition. It is disapproved to sell arms to one who is known as being from the group of mischief and belligerency,if it is not known,no problem. Capter on the Foundling To pick up that type of child is good,but the risk of perish is inevitable,then it is an obligation. 224 / Also any thing found and picked up,the same rule applies to it. Fundling is free,except if his/her slavery gets established by an evidence. His expenses are to be paid by the sate budget,also his penalties are the burden of the the public bbudget.The state budget will be his inheritant.If the person who pickes him spends for some expenses on him,that is a charity made by him,except in the case the head of the community (hakim) authorizes it with a condition of appealing to him for reimbursement,the foundling approves it after he reches to puberty.Thhe foundling is not to be taken away from his finder. If some one claims his blood relation to himself,then the relation gets established,even if he is slave,in this case he is manumitted,if he is zimmi,he becomes muslim,provided he is not in their headquarter,he becomes zimmi,if he is there. If two people claims the blood relation at the same,it gets established for both of them. But if one of them proved that he had a special mark in him or he precedes in his claim,then he is to be preferred. A free and muslim person is preferred to the slave and zimmi one. If some property fund with him or he was on a horse,that belongs to the foundling,he spends on him out of it by the order of the judge,it is said that he may spend without his judgement. The finder has the privilege of purchasing whatever the foundling needs as food and clothing and he receives gifts giben to him and he may deliver him to a profession.But he has no right to let him marry or to dispense in his property in a way other tha what are mentioned above aqnd he may noy lease him acording to the mast authentic opinion.It is said that he has right to let him be hired. Chapter on Lost and Found Lost and found material is a trust,if he declares that he picked it in order to deliver to its owner,otherwise he pays for it. 225 / The word of thed owner is to be taken,if he refuses that he picked it up to deliver to the owner,according to Abu Yusuf the word of the picker is to be based on. It suffices if he anounces "if you hear any one looking for a lost material,send him to me".The finder makes it known in the localiry he found it and in the mosque for a period he thinks that the owner will no longer seek for it after that period.This the authentic opinion. It is said that if it is ten dirham or more,then he is to anoucce it one year,and if its value is less than that,the period is some days. The materials which does not wait unchanged are to be announced until time it may be fixed that after that it will be wasted,then he gives it as charity whomsoever he wishes.If the owner comes after that,he mar approve it and the reward goes to him,or he let the finder or the poor who got it pay for it,if the found material was perishable one,nay on eof the two pays for it will not resort to the other.He gets back if any thing is left. The foundings in non-haram and haram areas (the areas which are fixed for some laws to ba followed by the pilgrims of hajj und umrah) are the same. It is allowed to pick any livestock.The finder donates in spending on it,if there is no permission given by the head of the state (or governor).if it is done by the permission conditioned with right of appealing to be reimbursed,then it is the debt of the owwner,and the picker has the privilege of keeping it until he gets the payment. If the owner abstains,then the fund material may be sold for the expenses.If it perishes after it was kept in the hand of the finder,then the debt gets void;but if it happens before that,it will not. 226 / The judge leases any thing which is useful and he spend to it from the amount he gets.Any thing which has no product to be benefitted from,the judge permits to spend on him if it is the the most convenient way ,provided he proved that it is a found thing;if he says "I do not have any evidence",then the judge says to him "spend for it,if you are tru",otherwise he sells it and instructs the money to be keept. The picker has the right of benefitting from the found thing after he anunces it,if he is poor. If he is rich he has to give it as charity,even if the receivers are his parents,his children or his wife,provided they are needy people. But if the found materials are trivial things such as seeds of the fruits,peeled parts of pomegranate the left parts of the wheat after the harvest,these can be benefitted from without any anouncements,But the owner has the right of taking it. There is no obligation of delivering the found thing to the claimant,except by the prove.But it is lawful with no abligation to deliver it to him if he mentions any particular mark on it. The book of runaway slave It is good to take him for any one who manages it.also the lost slave is under the same law.It is said that it is batter if the lost one left without touching. Both of them are to be taken to the governor,he puts in jail th escapee,not the lost one. Any one who brings it from travel distance has the right to get fourth dirhams,ig its value is less than fourty,then its value minus one dirham according to Muhammad.But according to Abu Yusuf fourty dirham,If he brings it from a distance nearer than that,than it will be calculated proportionately. 227 / If he flees from one who caught and tries to give him back to the owner,ha will not pay for him,if he declared and let the others witness that he got him to give to return him to the owner;otherwise,there is nothing for that.If he flees from a person who caught him,he is to pay for him. The wage and expenses (ju`l) of a colateral slave is on the shoulder of the person who accepts it. The wages and expenses of a culprit slave is the resposibility of his master,or the responsibilty of the guardian (wali) of the victim,if he has already paid it.The wages and expenses of the debtor slave is to be paid from his value and they come before the debt itself if he is sold for that reason.But it is the responsibility of the patron if he paid for him.The costs and expenses of the gift slave is upon one whom he was donated.This so even if the donater rescinds his donation after he was returned. The support expenses of the slave who escaped is like a foundling. Mudabbar and umm walad and are like the slave. If one who returns the slave is the father the patron or his son who a part of his family or one who is appointed as executioner of the will or one of the couples,there is nothing due to be paid by the one who is returnig the slave to the owner. The minor owwner is like the adult one. The book of Absentee al-Mafqud is some one who disappears,his place is not known,and also no one knows wwheter he is alive or dead. The judge appoints some one to protect his property and collects what he has the right for the things which there is no delegation made by the absentee. He sells what is feared of perish from his property.He spends on his wife and relatives by birth. The absentee is alive from the point of the laws to applied upon him;thus his wife can not marry to any one,his property can not be divided,his leasing can not be revoked. But the absentee is considered dead from point of the 228 / others.So,he will not inherit any thing from any one who dies during his absence,if adecision has been passed about his death.His share will be suspended as a hole or as apart until the judgement about his death has been passed. If he cames before the decision,he gets the share,otherwise it goes to one who inherits it if the absentee does not inherit the deceased. When a period passes so that no one of his age lives,some said ninty years and some one hundred and twenty years,a judgement is to be passed about his death.No one who dies before the judgement will inherit him,his wife begins to observe her waiting period after that moment. Book of Partnership Partnership is two types:Partnership of ownership (shirkah milk) and partnership of contract (shirkah `aqd). The partnership of ownership is if two person own a property together as inharitance,or purchasing,or getting as donation,or invading a country or their own properties were mixed up in a way that it is impossible to sort them out or the themselves intentionally mixed their properties. Each one of the partner is considered a third person regarding the share of the co-partner.He may sell his share to the partner in all forms and to any one else without getting his permission except in the case of mixture and mixing;it will not be valid without the permission of the partner. The second form of the partnership is if some one says to another person "I am your partner in so and so" and the other person accepts it. The requirements are offer and acceptance.Its condition is the 229 / absence of any thing cutting it off,like a condition that requires to put a fixed amount of the profit for one of the partners. This partnership is four types: First one is shirkah mufawadah.That is a partnership in which the two partners are equal in terms of property,liabilty,religion,transaction and profit. It automatically implies the legal representation (wakalah) and guaranteeing (kafalah). It can not be established between a muslim and a zimmi,Abu Yusuf has a dissenting opinion here,between the free and slave,between the adult and the minor,between the two minors or two slaves or two mukatabs. The word of mufawadah or declaring all of the requirements are to be mentioned. But neither the delivery of the shared property or mixing it is not needed. Any thing which is bought by any one of them with the exception of the food and clothings of his family,is shared by the both of them. Any kind of debt which binds one of them from the point of partnership such as selling,buying and renting,also binds the other partner. If some thind is binding guarantee for any thing,that will also bind the other partner.The two imams opposes to this point.It is under the same rule if one of them is bound because of a usurpation.Abu Yusuf has a dissenting view. If there is a guaranteeing process without any authorization,that will not be binding according to the authentic view. If one of the partner inherits any thing in which the partnership works,or some thing was donated to him and he got it,then the partnership changes to `Anan Partnership.It will also be Anan Partnership if it looses an element which is not required in Anan 230 / Partnership. If he inherits an unmeasurable and unweighable property (`ardan) or immobile property (`aqar),the partnerships keeps its being Mufawwadah. Neither Mufawada nor `Anan partnership may be established in any thing else than dirham,dinar and valid money according to Muhammad,and also gold and silver (not moulded yet),provided the people use it in their dealings. Both of them are not valid by any property,except if he sells half of his property against the property of the other partner,then he establishes the partnership. Also both of them can not validly established by the measurable and weighable orcountable standard type materials before the mixture. If they mix as one kind of mixture,then they became partners,according to Muhammad it is partnership of contract and accordnig to Abu Yusuf it is the partnership of orwnership. If they mix two different mixtures,then it will not be formed as partnership according to the unanimously accepted view. The second is `Anan Partnership (Shirkah `Anan).It is a partnership in which the parties are equal in wwhat have been mentioned or not equal. Anan partnership implies the legal representation,but not guaranteeing (kafalah). It may be validly established in some kind of businesses and also in general businesses by the properties owned partly or wholly by each one of the partners,alswo by unequal shares inthe capital and profit or having equal shares and profit opportunities or equal in one of the two while they work together with some more 231 / profit for the one who labours in the work of the other,and also it is valid in which one of the shares is dirham and the other one is dinar. Mixing of capitals is not required in this partnership. The risk is according the rate of the share,even if they set any requirement different than that. Any partner who purchases any thing like that,he only is liable to pay for it.Then he returns to the other partner for payment according his share in the capital,if he paid it from his own property. The partnership gets void if the both of the shares or one them perish before the purchase. The risk will be upon the burden of the owner,if the property perishes in his hand or in the hand of the other partner before the mixture,and uopn both of the partners after the mixture. If it perishes after the other partner purchases it by his own property,the bought material is under the ownership of both of the partners.The one who bought may appeal to his partner bty the price of his share,even if it perishes before the purchase of the other partner. If he delegates the other partner clearly while they were forming the partnership,the purchased material will be under the dominion of both of them as the ownership,and he may appeal to the other partner for the reimbusement,otherwise that will be only for the buyer. Each of the partner in both of Mufawadah and `Anan has the right of giving the capital to the other partner and getting the profit for himself or making mudaraba (one part gives capital and the other part makes business withe that and the profit is shared between them),or hiring the other partner,or delegating him,or making him depository. The dominion of the partner on the prperty is trusteeship (amanah). The third parnership is partnership of manifacturing (shirkah al-sana'i` or al-taqabbul), It is a partnership in which two tailors may share or a painter (some one like dry cleaner) or a tailor agrees on jointly run a 232 / workshop and accept orders and sharing the profit.If they share in working half and half and in sharing in profit by the thirds,that is valid. Each one of them accepts the order and it binds both of them.Both of them are may ask the other partner to work. And each one of them has the right askinf the wage.And any who pays to one of them the amount,gets considered as reimbursed his debt. The profit will be between them,even only one of them works. The fourth is the partnership of credit (shirkah al-wujuh). It is apartnership in which two parties may form a company,while they have no money,to buy jointly things with their credits and sell and the profit will be shared between them. If the fix this as mufawadah ,that is good. If it is left without any definition,then it is Inan.It automatically implies the consent of the delegation in what both of them buy. If they aggree on the sharing of the bought materials half and half or one third to some partner and two thirds to another partner,then the profit also will be the same way. Unequal type of sharing conditions in this partnership is void. Chapter No partnership is permitted in an area where deledation is not pssible,like cutting down the trees,collecting the plants and grasses,catching the fish and accepting the materials and properties. Any thind collected by any one of them,belongs to him,if the other partner helps him in colleceting,he is eligible to get wage for that service.But the wage will not exceed the half of the price of the thing picked up according to Abu Yusuf.Imam Muhammad dissents in this point.Whatever they get together,that goes to them half and half. 233 / If one of them had a mule and the other one had a horse serving to water,and one of them waters and gains money,that will go to him only,the other one will get the average wage of the share he has in the partnership (ajr mithl malih). The profit in a void partnership will be according to the share in the capital. The umequal type of sharing is void. If one of the partner dies or joins to a non-islamic state,provided the decision is passed about that,then the partnership is void. No partned has the right giving zakah from the share of the other partner without the permission. If each one permits the other and both of them pay together,each one of them is to compensate the share of the other.If they pay one after the other,the second one has to reimburse,no matter whether he knew or not.The imams say that they do nor reimburse,if they did not know. If one of the partners in Mufawada partnership permits the other partner in purchasing a she-slave to make sex with her,then he did that,she is only for the buyer (permitted partner) with no obligation at all.And each one is responsible for for her price.The two imams say that he has to pay the share of the other partner. The Book of Foundation (al-Waqf) Foundation (waqf) is to confine and some thing and allot it regarding the dominion of the owner and give awway as charity its fruits,like lending some thing to use (ariyah). It is not irrevokable transaction.The owner will not loose the ownership until the judge passes a resolution about that.It is said that ot he suspends it to his death by saying "if I die,I certainly made foundation (waqf). According to two imams it is alloting some thing for the ownership of Allah in away that the fruits and bewnefits will go to the the public (al-`ibad). It is irrevokable and the owwnership of the founder ends siply 234 / by the utterance of the word according to Abu Yusuf.According to Muhammad it will not until he delivers it to a guardian. Ifhe makes foundation for the needy people or builds a fountain for public watering or a guest house (khan),or a guest house in a remote area (ribat) for the wayfarers or allots his land to be a graveyard,his ownership dominion will not end until a decision is given for that reason.According to Abu Yusuf it ends just by the utterance of the word.According to Muhammad just by the deliverance of the material to the guardian (mutawalli),or by the drinking of the public from the water,and their staying in the guest house or in the castle and the burial of the body in the garaveyard. It is a condition to complete the foundation that he must fix whome the the fruits and benefits are to go.According to Abu Yusuf making waqf is valid without it. If the fixed persons are no more available then the money will be spent to the poor people. According to Abu Yusuf making foundation by alloting an unspecified fraqction of the property (al-musha`),alloting the the income or its administration for himself are effective. And it is also valid alloting some part or all of them to his umm walads or mudabbars as long they rae alive and after tham to the destitutes. The condition of changing the foundation to another type of foundation,whenever he wants,is also valid;Imam Muhammad dissents in all of those points. To allot a land for foundation is also valid also the mobile things which are traditonally accepted in founding a waqf according to Muhammad,such as axe,blade,hand chopper,saw,the table for washing the dead body and caskets and the related clothes,pots (smal as well as big),the Qur'ans and the books.Abu 235 / Yusuf share with him the idea of founding the arms,carrier livestocks like horse and camel in the way of Allah.This to be based on fatwa. It is also valid according to imam Abu Yusuf to make foundation of the moveable materials (al-manqul) being attached to immoveables (immobiles),like one who founds a farm with the cows in it and labourers (farmers working there).They may be their slaves and the tools and instruments for ploughing and processing the land. When the foundation is made,then he no more owwns that property and the property may not be the subject of any kind ownership,except dividing the unspecified fraction according to Abu Yusuf. One has to begin first to revive and better the foundation by its income,evben if the founder (al-waqif) did not make any condition,provided it was founded for the poor.If it was for a fixed one,then it will be for that only. If any one for whome waqf is made avoids than looking after the foundation or he is destitute,the judge will rents it and looks after it from the income,then he returns it to the one for whom it was aimed. The wreckage and ruins of the waqf will be spent to its betterment and repair,if it is needed,otherwise it will be kept for the time it may need. If the wreckage of a foundation is not possible to be spent,then it itself has to be sold and the price is to be spent on its betterment. The wwreckage will not be divided among the beneficiaries of the foundation. Chapter If any one builds a mosque,his ownership will not cease until he sperates it from his ownership dominion including its road and allows the public to pray in it and at least one person actually prays inside of it. According to one view establishment of a prayer in congregation is necessary. Having a store under the building of a mosque for the use of the 236 / mosque itself is not harmful to to the waqf. If he allots the store under the mosque to the uses which are not related to the mosque or makes at the top if it a home and makes the door of the mosque to the street and seperates the ownership of the mosque from his dominion,or he makes a mosque in the center of his home and permits the public to pray inside of it,his ownership of the mosque will not end,he may sell it and it may be inherited by his heirs. According to Abu Yusuf his dominion will end simply by the utterance of the word in any way. If the mosque becomes insufficient to the people and there is a public road adjascent to it,it is to be expanded,also it may be vice versa. If there is a guest house in a remote area (ribat) which is no more needed,its income will be spent to the nearest guest house. Founding a foundation during the illness of death (marad al-mawt) is considered as wasiyyah (will). The conditions and requirements put by the founder are to be followed in leasing it out,if there is any;otherwise it is to be preferred that the farms have no to be leased out for a period more than three years.Any property other than land may not be leased for more than a year. A foundation can not be rented out,but by the the amount of the average standandard payement (ajr al-mithl). The lease contract will not to be broken,if the the price goes up for the high demand of it. The one for whom the foundation is made (al-mawquf `alaih) has no right to lease it out,except in case of his being delegated or beinmg in charge of administering it. A foundation can be ledede to be used by some one (i`arah) and also can be pawned for any thing. If the land of the foundation is usurped,its reimbusement is to be preferred. If the founder puts a requirement that the administration will be run by himself and he is found as betrayer,the authority of administering it is to be taken away from him,even if he explicitly put a condition that it will not be taken away. Book of Sale (al-Buyu`) 237 / A sale (al-bay`) is exchanging a property agains a fropety. It is completed by an offer (ijab) and acceptance (qabul) made in the past tense,like "Isold,I bought" or in a word which have the same meanining.And also by exchanging the phisically what are valuable and non-valuables according the authentic opinion. If the sller says "take it by so much",then the buyer says "I took" or "I accepted",that is valid. If one of the parties offers,the other party has the right to accept the whole of the thing supplied against the whole of the price in the same sitting (majlis) or refuse it. It is not valid to take some part of it,leaving aside the rest,except if the price of each one of them are being declared. If the offerer revokes his offer or one of the parties gets up from the sitting before the acceptance occurs,the offer gets nullified. Whenever both of the offer and the acceptance take place,then the sale binds without any choice of sitting (majlis) of canceling it. The sale is valid in exchanging the things by pointing them without specifying the amount and quality.But it is not valid if the things are not pointed. It is also valid transaction if the sale is made against the price to be immediately paid or the price to be paid later but in a fixed date. If he buys against a payment after a year,then the seller does not supply the material until the year passes,then he delivers it,the buyer gets a neww year concession.The two imams have an opposite opinion. If the price is mentioned in general,if the money is standard and the value is fixed,then the sale is efffective;and it becomes necessary to pay whatever type is fixed. If the value differsmthe highest one in terms of value is to be paid.If the values (rawaj) are the same,but the costs (maliyyah) 238 / are not,then the sale is void (fasid) until it is clarified. It is valid sale transaction if the subject is the food and any thing measurable and weighable. It is also valid sale if it is done in lump (juzaf) with the exchange of the different types of materials,or by a fixed cup or using a fixednstone as measuring unit which can not specifically be known what is the amount. Any who sells the wheat on its ear at the lot where the wheat grains are to be sperated from their ears (subrah) as one sa` ( a cup) by a dirham,the sale is valid for one cup only,except if he names the whole of the harvest. The buyer has the choice of revoking the transaction,even if it is measured in or the whole of that was mentioned clearly in that sitting after the establishment of the transaction. Any one who sells a flock of the sheep,each sheep agains one dirham,nothing is valid by no means. It is also no valid if he sells a cloth each unit yard (zira`, a unit of measure) one dirham.Also all countables of which each one of them is different. According to two imams it is valid in all of them. If he sells it in lump as it is one hundred qafiz ( a unit of measure) agaist one dirham,then it is found less than that or mor than that,the buyer gets the less one agaist theproportionated price or revokes the transaction. If it is found more than one hudred qafiz,that belongs to the seller. In the materials which are cultivated the buyer gets the less one against the the whole price or revokes it. The extra goes to the seller without having any kind of choice of revoking it. If the seller fixes for each one of the unit of measure (zira`) some share rate,the buyer gets the least of what falls to his share. It is under the same rule if there is any thing extra. The purchaser has the right of choice in both of the cases. It is valid transaction if some one sells ten share out of the hundred shares of a house,but not valid if he sells ten zira`s out of hundred zira`s of the house.According to the two imams the transactions are valid in both of them. 239 / If he sells a bundle as it contains ten clothes,then it is found less or more than that,the sale transaction gets void. Bu if the seller gives in detail the prices,then the transaction is invalid in case the sold materials are found more than what was declared,but it is valid with its share, in what is found less than what was declared.The purchaser has the right of buying it or revoking it. If he sells a cloth as it is tne zira`,each zira` being one dirham,the buyer gets it by ten dirham,if it is ten and half zira` without having any choice,and will buy with nine dirhams,if it is nine and half zira` with a choice of revoking it. According to Abu Yusuf the buyer is free in buying it against eleven dirhams in the first case and against ten dirhams in the second case or revoking them. According to Muhammad he is free in buying it against ten and half dirhams in the first case and against nine and half dirhams in the second cases or revoking them. Chapter The building and the keys are included in a sale of house without any need of mentioning them.the tree is also included inselling the land,If he simply declares the purchase of a tree,its part from the land is also included according to Muhammad.This is the preferred view.Abu Yusuf dissents from this. The crops are not included in the sale of a land.And also the fruits are not also included in the sale of a tree,except if it is mentioned that it is included.It is like that,even if the seller mentions the rights (huquq) and utilities (al-marafiq). The seller is to be told "uproot it" and "pick up the fruits" and "deliver the sold material". The ggrains of seeds, which are no longer grown up,are not included in the sale.But if it grows and has no value yet,it is included.It is said that it was not included. 240 / Any one who sells fruit, whether they seem to ripe or not,that is valid.The buyer picks them immediately.If he puts the condition they are to be left on the tree,then the sale gets invalidated.This is true,even if the growth of the fruit has already ended.Imam Muhammad has an opposite view in this regard. Purchasing the crop is same too.If teh buyer leaves it with the permission of the seller without any condition,the exceeding part becomes lawful for him,if it is without his permission,he gives as charity wwhat exceeds in terms of the fruit.If it is after the fully growth of the fruits,then he has no obligation ofgiving it away as charity. If he rents a tree from the owner until he it ripens,then this rent is void and the extra becomes good for the leaseholder.If he rents a land leaving the cultivation,then the the lease is also void and the extra will not be good. If it goves the scond crop of fruits before receiving the first crop,then the sale is void.But after the receiving both of the parties will share. The word of client is valid regarding the amount of the product. If he buys its fruit and excepts some fixed ritls (a measure),then that is valid.It is said that it was not. It is allowed to sell the wheat on its ear,if it is sold against thematerial which is not its kind.Broad beans are also the same, when it is in its skin,and also the rice and sesame. Almond,peanut and wallnut in their outer skins are too under the same rule. The wage of measuring and counting the sold materials,and their weighing are upon the seller. But the wage for counting the money and weighing it is on the buyer. 241 / In a sale of a material against the cash money,the money is to be given first,if the delivery of the material is not delayed.In thesales of selling things against things or selling the money against the money (that is exchange),both of them are to be delivered at the same time. Chapter on the Options (al-Khiyarat) Suspending the sale contract to a condition (khiyar al-shart) is valid for any one of the parties or for both of them at a period of three days,not more than that,except if the one who has that privilege auothorizes it in the period of three days.According to two imams that is permissible,if he declares a fixed period of time,no matter what kind of time it is. If he buys a material on the condition that if he does not pay the money until the three days,there is no sale,that is a valid transaction.But untl four days,it is not,except in the case of his paying the price in the three days period.According to Muhammad it is allowed upto four or more days. If the sller has a choice of not selling it,that prevents the transfer of the ownership dominion on the sold materila from the seller to the purchaser.So if the buyer receives it and it perishes in his hand,he has to pay its value. But the choice of the buyer will not prevent the above mentioned transfer,if it perishes in this case,he has to pay the price. The same rule will apply if the sold material gets defected,except that it will not be transfered to the ownership of the buyer,the two imams are having a dissenting view. If a patron buys a she-slave who is already his wife with a choice of revoking the sale,the marriage contract does not get void.If he makes sex with him,he is to return her to the seller,because the sex is based on themarriage,except in the case when she is virgin. If she gives birth during the period of choice,she will not be his umm walad. If he buys his relative or a slave with the choice after saying 242 / "if I own a slave,he is free",both of them will not be manumitted in the period in which the choice is effective. The menstruation period of the she-slave bought with the option of revoking the transaction,the mestruation being in the option period,is considered as istibra'.There is no is tibra' upon the sller,if the she-slave is returned back with the condition of the option. If the buyer receives thew material which sold with the option with permission of the seller,then he deposits it to the seller,afteh that it perishes,the risk is upon the seller because of the receiving it (qabz) is lifted up with giving it back,since there is no ownership determined for the buyer who receives some thing with condition of having right to revoke the transaction. If the slave who is authorized to work for his ptaron buys some thing with that condition of option,then the seller acquits him from its price,his option still is effective and he has the right of rescission of the transaction and give the materials back,since it implies lack of ownership. If a zimmi buys from zimmi any kind of alcohol with the option of the condition,then converts to Islam in that period,his buying becomes void,for a muslim must not own the alcohol with the approval to be given (ijazah).But the two imams have opposite views in all of these issues. Any one who has the right of recession he may authorize it in the presence and also absence of the other party.But revoking the transaction will be only in the presence of the other party,Abu Yusuf is just of the opposite opinion. If he cancels and the other party was informed in its period about the cancellation,the transaction is cancelled,otherwise the contract gets fulfilled also by the death of the one who has the optional right. It also is completed with the passage of the period and with taking it by a preemption for the cause of the sold,and with the words which denote upon the consent,like riding in a contract in which there is no option,or sex or manumission and its related varieties. If the buyer puts an optional condition for a third person,that is also valid,Any one of them ratifies or revokes,that is 243 / valid.If one of them approves and the other one rescinds,the first one is valid;if both of them act at the same time,then cancellation gets effective. If he selles two slaves with the option in one of them,if he determins which one of of them is the subjec of option and declares the prices of each one of them,then it is valid,otherwise it is not. It is also allowed to have an option of choosing one out of the many (khiyar al-ta`yin). That is selling one out of the two or three with the option that the purchaser will select any one which he wishes.But it is not valid for the items more than three.His right of option is restricted with with the peiod of the option of condition with all of the different opinions. One of them is sold item and the rest are entrusted items. If he receives all of them and one of them perishes aor gets a defection,thesale gets binding in that perished item and the other two become trusted materials. If all of the items perish,he has tp pay half of the price of each one of them,if they are two or one third of the price of each one of them,if they are three. The buyer has no right of returning all of them,except if the option of the condition is added to the option of seleting one out of many. Right of option to selectand to return for descovering a defect can be inherited,but not the options of condition and or giving back after seeing the item. If two buyers buy some thing with a condition that both of them will be free in returning the item,then one of them gives his consent,the other buyer does not give it back,the two imams are of the oppsite opinion.The options of defects and seeing are also based in this diversity of the opinion. If he buys a slave as he is baker or writer,then it is understood that he is not like that,he buys him with the whole price or leaves him. Chapter on the Option of Seeing (khiyar al-ru'yah) Any who purchases some thing which he did not see,that is permitted.He has the right to return it back when he sees it,as long as there is nothing which cancels his right of option to 244 / return it,even if he gives his consent before seeing it. There is no option for some one who sells what he does not see. Seeing option gets void with the things by which the option od condition gets void like causing defect or getting defected in the hand of the buyer and the impossibilty of returning some part of it and disposing in a way that no revoking is possible,like the manumissio and its related varieties,or creation a right of athird person like the sale undontionally,pawning and rentin out before seeing and after it. Any thing which does not establish any right for a third person,like the sale with the option or bargaining,donation without delivering the material annuls it after seeing it,not before it. Seeing the face of a slave,a livestock and also its flank is enough.In a shhep for breeding,groping its body is necessary.Sheep for matching and producing lambs are necassry to see their udders. Seeing the outer part of the cloth suffices if the cloth is nor branded with figures (mu`laman),but seeing the figure if it is figured. Seein inside the house is sufficient,even if the rooms were not seen.But according to Imam Zufar seeing inside is the rooms is necessary.The official view is like this. If the purchaser sees some part of the bought item,he has option seen the rest. Whatever is offred by the example,like the measurable and weighable items,seein some part of them means seeing the whole. The stuff which are edible are neceasry to taste them. The seeing of an agent and his receiving is enough,contrary to 245 / the messenger.According to two imams he is too like the agent. The sale made by the blind and also his buying are valid.Bu he has an option when he purchases.But the option extincts by touching,or smelling or tasting in the items which can be specified by those ways. Bu an immobile item is to be desribed to the blind. Any one who sees one of the two cloths,then he bought them,then he saw the other cloth,he has the right buying them both or returning them both,not buying one of them. Any one who sees some thing and buys,then finds it different,he gets the option,otherwise does not.If both of the parties disagree on the defference,the word of sller is to be taken.If they disagree in the option of seeng,then the word of the buyer is to be taken. If he buys a bundle of zutt ( atribe in Iraq and India) cloth,then he sells or donates a cloth from that bundle and delivers it,he has the option of returning the rest because defect,nut because of the option of seeing and condition. Chpater on the option of defect (al-`ayb) Unconditional sale necessitates the goodness of the sold item.Any one who finds any defect in the sold item,he has the option of returning it or taking it with full proce,he has no right to keep it and decrease its price,except by the consent of the seller. Any thing which lessens the price according to the business people,it is defect. If a minor slave flees without any opression of his patron to a distance,even less than islamic travel distanec,that is counted as defect. Steeling and urinating in the bed are defects too.Each one these three factors are defect seperately in adults. 246 / If he steels or flees or urinates in his bed while he was minor then he repeats it while he is still minor in the hand of the purchaser,then he is ti be returned because of those factors. But if he repats those actions in the hand of the buyer after he reaches to the puberty,he is not going to be returned. Madness is a defect in any way.If he was mad while he was little and then he returns to in the hand of the buyer while he is minor or adult,he is to be returned because of that. Bed breath and underarm odor,adultery and being born out of adultery are defective elements in the she-slave,but not in the he-slave,except if it is caused by a desease. Blleding of nose is defect too.And also having no menstruation while she is seventeen years old,not less than that,is a defect That will be understood by the word of the she-slave.She is to be returned when the the revoking of the oath made by the seller before the receiving of the item and after it also.That is valid. Being disbeliever is a defect in both of them.Also old age,debt,coughing suffered from old days,hair and water in the eye are defects in the slaves. If an old defect bursts out in the hand of the buiyer after it was observed in another time,the buyer appeals to the seller by the option of defect. For example,the cloth he bought it and scissored it,then he found out that it has a dfect,he has no right of returning it back,except if the seller agrees on taking it as it is,then the buyer has the right to return it back.It is so much so that the buyer has no right to appeal for the decreased value to the seller, if he has sold the item. If he tailors the cloth or paints it with red color or pasts it with flour past mixed with oil,then he discovers the defect,then 247 / he appeals to the seller for reimbursement of the lost value. The seller has no more right to take it back. Even if the buyer purchases it after seeing the defect of the sold item,still the his right to appeal for the decreased value to be reimbursed by the seller does not. If he ermancopates against nothing,or makes mudabbar or causes her ba umm walad,then the defect is noticed,he returns to the seller.This so even if it is noticed after the death of the buyer. If he manumits against any propery or kills,he can not return for nothing. The same law if he eats all or a part of the food or wears the cloth and then it becomes torn,he has no right to appeal,the two imams are of the dissenting opinion. If he buys eggs,walnuts,melons,cucumbers and then cuts them and finds them wasted,if it is stil usable he appeals for the reimbusement of the decresed value,otherwise,for the full price of it.If he finds some of them wasted and they are very few like one or two percent,then sale is valid,otherwise it is wasted.And he returns for the full price. Any who sells what he purchased,then the sold item is returned to him (second seller) because of the defect based on a court decision,or aknowledgement or rescing the oath or the evidence,then he returns it to the seller (first one).But if he had accepted the item with his concent,then he does not return it. Any one who receives what he buys,then he claims that there was a defect,he will not be forced to pay the price,but he has to prove it or ivites the seller to take an oath. If he says "my witnesses are absent",the price will be given if the seller takes the oath and the defect gets binding if he revokes his evidence. Any one who alleges that the bought slave escaped,he has to prove 248 / first that "he fled while he was in his dominion",then he lets the saller take an oath by Allah that he sold it and delivered it and he never fled before or he swears by Allah that the buyer has no right of giving it back as he alleges it or by Allah he did not flee at all while he was in the hand of the buyer.The one who swears does not say that "by Allah he sold him and he had no defect of this type or he has sold it and delivered it whereas it had no such a defect. In the case of and adult fled he makes the seller swear by Allah that he did not escape since he reached the manhood. If the buyer does not have any evidence on his fleeing while he was with him,then the seller is to be asked to take an oath according to two imams thah he did not know that he fled while was with the buyer.The scholars have apposing views about wat the opinion of Abu Hanifah was. If he revkes the oath according to two imams,he suggets to the seller to swear second as is mentioned above. If the seller says after after the mautual receivings "I sold you this together with the other" and the buiyer says that "no,just opposite,only ome of them",then the word of the buyer is effective.It is the same law to be applied if the both agree upon the quantity of sold item,but disagree on the received part ofit. If he buys two slaves at a time and received one of them and he finds in the received part the remainig part the defect in the non-received part of it,then he has to return all of it.He has not to return the defective material alone,except in the case of the defect is noticed after the receiving both of them. If some part of the measurable and weighable materials after the defect,he has to give either all of them or take all of them.It 249 / is said this is the case if there are not in two cups,other wise they are like two slaves. If some part of the sold material is claimed after the receiving,he has no right of giving the remaning part back,contrary to the cloth. To cure the defective item after the defect has been seen or riding it means the consent is given.But if he rides it toreturn it or water it or to buy the hay for it or because the buyer had to ride it,then it does not meant giving the consent. If the sold material is cut after it was received or killed for a reason which was there while it was in the hand of the seller,he returns it back and gets its price.The two imams say that he appeals for the exceeding defference between his being steeler and not being steeler,or murderer and not murderer,if he did not know the defect while he was buying it;otherwise he does not. If it has been transfered from one hand to another many times,then it was cut in the hand of the last one,the sellers have the right to appeal one another,as it is the case if its ownership was claimed by many people.According to two imams the last one appeals to his seller,but no one else may appeal to his seller. If he sells some thing with a condition he will never be resposible from any defect,that is valid,even if he did not count the dfecets.The defects which may occur before the receiving the item are also included in the irresposiblity according to Abu Yusuf,not Imam Muhammad. Chapter on Void Sale Selling things which are not accepted as propety (mal) and its sale is void,like the blood,dead body and the free person. Selling umm walad and mudabbar slave are too void.Also selling of 250 / mukatab slave,except in a case of if it is approved by him later. It is also under the same rule selling against the cash the property which are not acceptable as transactional property (mal mutaqawwim),like the alcohol and the pig.The selling of a slave is to abe covered by the rules related to the free person and teh slaughtered animals are to be pplied by the rules ralated to the dead body.,even if the seller declared the price of each one of them.According to two imams the sale is valid in theslave and slaughtered animal if he declares the price. The sale is also valid in the slave added to the mudabbar or the slave of anotehr person with proportion of the share he has in them. According to the authentic view the situation is the same in a thing which is added to a foundation. Sellin any property against the alcvohol or vice versa void;it is the same to sell it against the pig or vice versa. It is not allowed to sell the birds in the air,the fish not caught yet,or caught but put in a big tent in the water so that it may not be caught without abig effort or the fish itself entered in that tent and the entrance is not closed.But if it is caught and put there and it is possible to catch it without any big effeort,then it is valid. It is also not valid to sell the lamb in the womb of the mother amy product in the body and the milk in the udder,pearl in the shell,wool on the sheep.Abu Yusuf is of the opposing opinion in the last two views. It is also not allowed to sell the meat in the sheep,throwing the net and selling the probable fish can be caught in advance,selleing the connecting wood fixed at the top of the building and one yard of the cloth,even if the seller mentions cutting it. If he takes off the wood or cuts a yard from the cloth and then delivers it before the relinquishing the contract,then the validity returns back. Also muzabanah is not allowed;it is selling the dates on the palm 251 / against the dried up dates like measuring it in lump with guessing. Also muhaqala is not allowed;it is selling of the wheat on the ear against the wheat like that with a undetemining measure. It is also not valid to sell by whoever touches first (mulamasa),or puts the stone or throwing the material to one another after they bargain and agree on that the sale will be binding if the buyer touches it or puts a stone on it or throws the seller to him. It is also not valid selling one of the two clothes except with the condition that the customer will take any one of them he wishes. It is also not valid to sell the lands for grazing the cattles (mara`i) or renting them out and the bees without hives,imam Muhammad sees hust opposite of it.Also silkworm and its egg.According to Abu Yusuf,silkworm is allowed to sell with its raw silk.There are two contradicting two views reported from Abu Yusuf about its eggs.According to Muhamd it is allowed selling both of them in any way.This the preferred view for the fatwa. The patron has no right to sell a slave fled from him,except to one who he believes the slave is with him.If he returns before the revoknig the sale,sale never changes to be valid.It is said it will turn to be valid. The milk of a woman is also not valid for sale,even if it is after the milk is drawn.According to Abu Yusuf sale of the milk of a she-slave is valid. The hair of a pig is also can not be sold.But is allowed to to use it for sewing in the case of the necessity.It makes filthy if it falls in the water which is not much according to Abu Yusuf,but not according to Muhammad. It is also not allowed to sale the hair of a human being,and to use it.And also no other parts of the human body is allowed to be sold or to be used. 252 / Also the shin of a dead animal before tanningit.It is allowed to sell it after the tanning.It also may be used for the benefit.The bones of a dead animal can be sold and can be used,also its nerves,horns,wool,hair of any animal including the camel.Also the bones can be sold,but imam Muhammad has a dissenting opinion in this point. It is also not permitted to selll the upper part of a building after it falls down.Also the water way also its donation is not accepted.Both of the cats are valid in the roads. It is also not valid to sell a person as he is the his she-slave whereas it is a he-slave. But if he sells a ram whereas it is a calf.But the buyer will get an option. It is not valid to buy an item before the payement against a price less than what was fixed, while he sold.And also not valid, if he purchases an item before it was payed together with another item against the price it was fixed in the first sale.But it is valid from the point of other item with the proportion of falls to it. It is not valid sale of the oil by weighing it together with its cup and substracting from that for each cup some fixed aproximate amount.If it is fixed substracting the equivalant of the cup,then it is valid. If they differ in the cup and its amount of containment,then the word of the buyer is to be taken. If a muslim instructs a zimmi to sell the alcohol or to buy it,that is valid.The two imams are of the opposing opinion.It is under the same rule if a muhrim (one who is in the ihram state for the pigrimage) instructs another person to sell the hunted animals. If an infidel buys a muslim sl;ave or a Qur'an,that is valid and he is to be obliged to to let them go away from his ownership. Selling an item with a condition which is needed by the contract is effective,like the condition of transfering the ownership to 253 / the purchaser. It is also under teh same law selling it with a condition which is needed by the contract and it has no use to any body,like the condition of not selling the animal sold (bought). If it is sold wit a condition which is not necessitated by the the contract and there is a use in to one of the parties to to the contract or to the sold person has a riht to benefit from that,then it is void,like selling a slave with acondition the purchaser has to manumit him,or make him mudabbar or mukatab amnd also selling a she-slave with a condition of making her umm walad. If the costumer emancipates him then the sale transaction turns into the valid,the it becomes necessary to pay the price.According to two imams it will not turn to be valid,so its value gets necessary to be paid. And also like the condition that the seller will benefit from his service a month or he will stay in it (house) or he will not deliver it until the beginning of the month or the purchaser will lend to the seller somer dirhams or will give him a gift or the seller will cut the cloth and sew for the client an overcoat or shirt,or repair the shoes and to add some leather piece at the top of it.But it is valid in the hoes based on the popular practice (istihsan). It is also not valid selling the she-slace except the fetus in her womb,selling any thein until the New Day and Feast (these are two pre-islamic iranian holidays),christian fasting and jewish breaking of the fasting provided the parties do not any thing about them. Also selling is not valid if it is done under the condition "until the harvest,or seperating the crops from their ears,or picking up the grapes,or cut off the wool or return of the pilgrims. But to guarantee (al-kafalah) until these periods is valid.If the 254 / buyer annuls the period before it occurs,that is valid. If he sells an item with no condition,then he fixes some period out of those mentioned above. Any one who sells his share of the house,that is allowed,if the partie know it.Abu Yusuf opposes to this point.And according to Muhammad the knowledge of the buyer suffices. Chapter If the buiyer gets hold of the sold material in a void sale by the permission of the seller,he does not own it.That is a deposit to be kept in costody in the safe under teh his dominion according to some of the jurists and it is under the suretship of the buyer according to some other jurists.It is said that the first one is the view of Abu Hanifah and the second is the vieww of the two imams.That is taken from the difference of views in the isuue that if a mudabbar or umma walad has been sold and he died in the hand buyer,it is not to be compensated according to Abu Hanifah and two imams have a different view in this regard. 50