Chapter on the Cancellation of the Contract Cancellationisvalid wit two words of which one must signifythe future contrary to the opinion of Imam Muhammad.It gets completed by the acceptance in the same sitting, like a sale. Cancellation is a new sale transaction from the point of the peole other than two parties according to the unannimously accepted view.And it is for both of them revoking (faskh) after the delivery takes place. If it is impossible to make it revoked,then it is void (batil).According to Abu Yusuf it is just a revoke,if revoking it is not possible,then it is void. According to Muhammad it is still revoked.If it is not possible,then that is sale,then if it does not work, it is void,and before the receiving it,that is a revoke in the movable things,and also in immovables. According to Abu Yusuf it is in estates it is sale. If the price fixed is more than what was in sale previously or giving another type of the item as condition,then the condition is void and the first price is to be paid,according to two imams the condition is valid,if it is after the receiving,the cancellation is a new sale. If the frice fixed in revoking is less than that while it had no 257 / defect,then the first price gets fixed.According to Abu Yusuf it is to be made a sale.And the condition gets valid. If it is defected,the condition gets valid as unanimously accepted view. No revoking is possible after the she-slave gives birth.According to two imams that is allowed. Revoking it is not prevented if the price perishes;but the perish of the sold material and even some part of it,prevents it at the level of the proportion of the part lost. Chapter on Murabahah and Tawliyah al-Murabahah is sale of the stuff with the the price it was bought together with some more added to it. Tawwliyah selling it with the same price,no more and no less. WWadi`ah is a selling it for the price less than the paid price. All of these types of sale are not possible if the first amount is not a fungible property (mithly) or it is in the ownership of one who is willing to buy and the profit is known. One needs to add to the capital the the expenses made for washing,dying,tailoring,knetting,moving,shepherding and agency in selling. He says "it has cost me so and so" and does not say "I purchased it so and so". He does not add his owwn expenses and also expenses for the salary of the shapherd,phisycian,teacher and storage. If it is undrestood that the cutomer betrayed in the murabahah,then he gets the option of taking the sold material for the whole price or leaving it. In Tawliyah he decreases the price at the rate of the deception. That prinsiple also work analogically in Wadi`ah type of 258 / sale.According to Abu Yusuf the amount of the deception is to be decreased from the price together with the profit in Murabahah type of sale.According to Muhammad he will have option in both of them. If the item perishes before returning it back or revoking it is not possible,then it is necessary to pay the whole prive according unannimously accepted view. Any one who buys a thing for ten and sells it for fifteen and then buys it second time for ten,that means he makes maurabahah for five.But if he buys it second time for five,he does not make murabahah. According to two imams he makes murabahah for the last price in all conditions. If a debtor slave who is authorized to make business independantly for ten and then sells it to his patron for fifteen or just vice versa,he makes murabahah by ten. A co-partner in Mudrabah partnership who put his effort to the corporation with a stipulation of sharing half,if he purchases some thing for tne and sells it to the other partnerwho put capital to the corporation for fifteen,then the latter makes murabahah with the portion of twelve and half. If a she-slave loses one of her eyes or sex is being made with her and she is found not virgin or a cloth is pierced by the mouse or the fire burns it, the holder makes murabahah without any clarification being done. But if her eye is pulled out or sex is made with her while she is virgin,the cloth is put into pieces because of it folding and unfolding,then he has to declare the dfecefcts. If he buys with credit to pay in istalments (nasi`ah) and then makes murabahah without any clarification,the buyer gets option. If he loses it and then he learns the buyer,he has to pay the whole of the price. 259 / Tawliyah is also in the same pattern. If he purchases two clothes in one transaction each one for five,then it is disapproved to sell one of them for five as murabahah without any clarification. Any one who makes tawliyah some thing for a price it has and the buyer does not know what was the amount,then it is void transaction.But if he learns it in the same session,then he gets the option. Chapter The sale of the movables is invalid before reception (qabz) the sold item.But it is valid in real estates (al-`aqar),imam Muhammad ahs an opposing view. Any one who purchases a thing which meazsurable (kayli),he has neither to eat it nor to sell it until he actually measures it. And the measuring og the seller in his presence after the transaction suffices.This is the correct opinion. The weighable (wazni) and countable (al-`adadi) things are likewise,but not things which are measured by the lenght measures (al-madhru`). It is valid to dispose in the money to be paid as a price of some thing before its reception,also to substract from it or to add to it,while the sold material is in existence,not after it is perished. Adding some thing more to the sold material is also under the same law. The right of each one the buyer and seller is releted to all of the mentioned items.So one may make murabahah and tawliyah in all of them if there are some things added to or the remaining part of them if some things are substracted. Any one who has right of preemption (shuf`ah) will take the less in in both of the cases. Any on ewho says "sell your slave to Zayd for a thousand with a condition that I am guaranteeing you suretyship of paying so much amount out of the price of thousand,not thousand itself",the buyer takes the thousand from Zaid and the exceeding part fro the guarantor.If the guarantor does not use the expression of "out of 260 / the price (min al-thaman)" then to pay thouusand is the duty of Zaid and nothing is due to be paid by the guarantor. Any credit (debt) which has been deterred for a fixed period is valid. Anyy credit (debt) may be validly delayed except in the loan (of money).The latter also has an exception: That is the case where the the loan of momey is included in a will.But no delay is valid upto a non-fixed exaggerated period,such as the blowing of the wind. Delaying it valid to the periods which are relatively known,like the harvest and things like that. Chapter on Interest (al-Riba) Interest (Riba) is present extra wealth (economic value) which is for the exchange and is stipulated to be given to one of the two paries in excgange of wealth (propery and money-mal) for wealth. Its legal cause (illah) is its quantity and its type (jins). So it is unlawful selling of a measurable and weigable material for its kind of thing with the extra amount in giving back,or thed sale with the payement to be done later (nasi'ah),even if it is not edible.For example the gypsum and the iron. Thus it is lawful exchanging those stuff with the same amounts at the deliverance in the same time and also exchanging the stuff one of them being more than the other in the stuff where there is no way of measuring them by any means,a a handful for two handfuls,an egg for two eggs,a date for two dates. If the two qualities (quantity ang type) are there,then exchanging with some extra and also delaying the delivery of the other party's delivery is unlawful. If these two qualities are not there,then they are lawful. If only one of the two is there,the exchanging the stuf with one of them being more,is lawful,but not the delaying the delivery of the second party's obligation. So it is not lawful to sell a harawi cloth (cloth made in Harat) in exchange of another harawo cloth,also wheat against the barley. Immediate delivery of the both party's obligations is the requirement in exchanging the money and fixing only is the requirement in the stuff other than that. Any stuff in which riba (interest) is declared in the main sources as unlawful because of the measurebility of the stuff,is 261 / considered as measurable forever,like the barley,the date or salt or any stuff which is declared as unlawful because of the weighability,then it is weighable forever,like gold and silver,even if the the costomary concept was against it. Any thing which there is no mention in the main sources (nass),then the usage and costom is to be given an important role in it,such as the stuffs other than six articles mentioned. So it is not lawful to sell the wheat against the wheat in the same amounts,but with weighing it and also selling the gold against the gold in the same amount,but measuring it. It is allowed to sell a certain coin (fals) for two certain coins contrary to the opinion of Muhammad.It is also permitted to sell the cotton made cloth against the cotton,meat against the animal.But according to Muhammad sale of the meat against the same type of animal is not approved,lest the meat may be more than the meat of the animal. sale of the flour against the flour is allowed in equal amount and with measure,but not against the gruel of parched barley in any way.This is contrary to the opinions of the two imams. It is also allowed to sell the fresh date for the fresh date in the same quantities,contrary to the opinions of the two imams.And also fresh dates against the dried dates,grapes against the dried ones in the same quantity contrary to the two imams. Also sale of the fresh or wet wheat in the same quntity or being dried as well and also the dried dates and grapes against the same type of stuff and in the same amount.This is contrary to Imam Muhammad's view. IT is allowed sale of the an animal of the meat for the ones other than its type with the extra in quantity.Sale of the milk is also the same. The buffalos are considered the same type with cows,goats with 262 / the sheep,a hairy camel with the small size camel. It is permitted to sell the grape vinegard against the vinegard of date with unequal quantity.And also to sell the fat of the abdomen against the fat of th eetail or meat,sale of the bread against the wheat or the flour or gruel,even if one of them is to be delivered later.This is to be based in Fatwa. It is not allowed to sell the new for the old,since there is an extra amount (riba-interest) in it,except if they are in equal amount. Also unripe dates against the ripe dates,the wheat against the flour or the gruel or rubbish remained in the sieve in any means. And also it is not allowed sale of the olive against the olive oil,the sesame against the oil of sesame,lest the oils in both cases may be more than oils contained by olive and sesame.And the extra be the dregs of the pressed ones. Borrowing bread is not allowed bo mo means,according to Abu Yusuf it is permitted by weight.This is to be based in Fatwa.According to Muhammad it is allowed also based on cunting. There is no interest (riba) between the patron and his slave and muslim and non-muslim citizen in a Non-Islamic State (dar al-harb). Chapter on Rights and Claiming of the Rights The upper story and the bathroom are included in the sale of a real estate,but not awning except if it iis mentioned tha all rights in the house or smal or big all rights which are in the house or from the house,according to two imams the awning will also be included if its entrance is from the house. No upper part will be included in buying a dwelling place 263 / (manzil),except with the mentioning some thing like "all rights",also it will not be included in the sale of the home (dar),even if the expression of "all rights" is pronounced. Also neither the road and water canal,nor the right ddrinking water (shirb) are automatically included,except if an expression like "all rights" is mentioned.The latter three otems are included automatically without any mentioning in the leasing. Chapter The evidence (bayyinah) is a proof (hujjah) that transits to others.Aknowledgment (iqrar) is a incomplete proof. Inconsistency impedes the claim of the ownership,but not manumission,divorce and the blood relation. If a sold she-slave gives bitrh to a child,then she was claimed by some one based on the evidence,her child will foolw her,if the child is in the hand of the buyer and the judge too included him in his decision. It is said that decison related to her mother will suffice. If the buyer aknowledges him for some one else,then he will not follow her. If a person says to another one "buy me,I am a slave",then he purchases him and finds that he is free,so if the seller id there or his location is known,the instructer will not comppensate for him,otherwise he will compensate him,and after that he will appeal to the seller,if he is there. If he says "take me as a pawn",then he finds him free,no compensation is needed in any way. Any one who claims any unknown right in a home,then an amicable settlement is made on some thing,but some part of the home was claimed by a third person,the claimant has no right to withdraw.If the whole of it is claimed,the calimant has to return all of the countercalue. It is understood from this point that amicably settlement regarding the unknown (majhul) is valid. 264 / If the claimant claims the whole of it,he has to give back the share of what has been claimed,even if it is a part. Chapter Any one whose property is sold by an unauthorized agent (fuduli) has the right of cancelling. He may also approve (ijazah) it, provided the parties,the sold material,the first posessor and the amount paid,if it is a thing,are existant. If he approves,then the thing given as the amount of price (ard) goes to the posession of the unauthorized agent.He has to pay the equivalant of the sold material,if it is fungible,otherwise he has to pay its value. The things which are not property belong to the approver and they are just trust in hand of the unauthorized agent. Unauthorized agent has the right to revoke it before the owner approves it. The mancipation of a buyer who bought from a usurper is effective,if the sale is approved,imam Muhammad has a dissenting opinion in this issue.The sale of the buyer is not valid. If the hand is chopped while he was in the posession of the buyer,and it was approved,then the penalty money (arsh) will go to the buyer.He has to give away as charity the extra amount exceeds the half of the price. Any one who buys a slave from a person other his patron,then he brings an evidence that the seller or the patron aknowledges that there was no authority and he intends to rerurn him back,his evidence is no admissible. If the seller aknowledges that in the court,then the buyer may return him back. If he buys a home from an unauthorized agent and then adds it to 265 / his own building,unauthorized agent has nothing to compensate.Imam Muhammad has an opposin view. Chapter on The Sale with Prepayment (al-Salam) Salam is the sale of a thing to be delivered later for the immediate payment. It is valid for the things which can be determined with their qualities and also can be known its amount;not valid in the other things. That is valid in the measurable and weighables with the exception of the gold and silver coins (money). It is valid too in the cuntbles which are nearly standard,like the peacan and egg countingly as well as measuringly.And also the in the coins,withe the dissenting view of imam Muhammad. It is alos valid sun-baked brick and also fire-baked bricks when the moulder is fixed and known. Also in leght meazsured stuffs,like the cloth,if the lendth,width and height are clarified. This type of sale is effective in the salted fish provided it is known in weight and kind.The fresh fish is also admissible in this type of sale only when it stilt is fresh,but it is not valid in both of them,if the criterion is counting. Salam is nor allowed in the animals and their parts,their skins,if the later's criterion is counting,the wood in bundles,jewelery and normal necklace stones and the fresh meat,the two imams say that it is valid also in the meat,if the part of which meat is made from the body is described with certainity. No salam is allowed to be measured with a certain cup or measure of which the quantity is not known. Also it is not permitted to do the transaction of salam in the food of a certain village or dates of a certain palm and the fruits which do not stand from the time of contract to the time delivery. The requirements of the salam are declaring the stuff,like the wheat or barley,the typelike raised by watering or without water,the quality,like the best or lower level,the amount,like so much of ritl or measure with cups which can not be squeezed or stretched,fixed period which at least may be one month according to the correct view,the amount of the capital (that is the price),if it measurable or weighable or countable. Salam is not permitted in two different stuffs without mentioning the prices of each one of them also it is not permitted in two types of coins without mentioning the ratiosof each one of them has in the stuff sold by this type of sale. And mentioniong the place of the relinquishing the transaction is necessary,if there is a load and trouble to be beared.According to two imams knowing the price is not necessary,if it is already fixed and also the place of the relinquishing it.He pays it at the place of the transaction. The price is like that. The wage,the division and the thing which has no load problem are to be paid by him whereever he wants according to the most authentic opinion.This is what unannimously admitted attitude. |Takin the posession of the money before they seperate from each other is a requirement to make the salam last.If he makes a salam transaction with a condition that he will immediately pay one hundred and one hundred as a debt upon the one whome naoher salam is made and some wheat is to be provided by him later,that is 267 / invalid only in the share which falls to the debt. No disposition is allowed in the money or the material sold by putting them in a partnership or tawliyah,before taking them into posession. It is not allowed to buy any thing by the price money from the person with whom salam is made after a reciprocal revocation of the salam transaction is activated before taking the posession of the money. If he buys the wheat and instructs the other party to take the prosession of it as a fulfilment of the obligation,that is not admissible,but if he instructs the creditor with the posession of that item,then that is valid. It is also valid if he instructs the other patry to take it it into his posession for him and for himself,then he measures it for the instructor,then for himself that is also valid. If the the person measures it with measure of the party who is to deliver the material by his consent while he is absent,that is not considered as taken it into posession.But if the seller measures in the way it is mentioned above,then that is considered as taking it into posession contrary to wah he has measured with his own cup or with a cup in a corner of his home. If he measures the debt and the thing with the cup of the buyer,if he begins with the thing first,then he is considered to have taken it in the posession,if he begins with the debt,then that is not valid.According to two imams taking the posession of the material is valid,if he wishes heagrees for partnership or if he wishes he rescinds the sale. If he makes a salam giving a she-slave for wheat and it was already taken into posessoin,the the parties reciprocally cancell the sale,the she-slave died before it was returned to the related party,then the cancellation stayed in effect,the 268 / value of it at the day of the taking posession is to be paid.If she dies first,then they cancel the sale reciprocally,it is valid. Exchange of the properties in both of the case is laso under the same principles,contrary to the purchasing any thing against the money in the both of the issues. If one of the parties in the salam sale claims that there was a determined period or a stipulation old wheat and but the other party refutes it,the the word of the claimant is to be taken in both of them in all conditions.The two imamms say that the word of the defender (or denyer) is to be taken,if he is one who buyer in the first case,or the seller the item in the second case. Contract of manifacture (istisna`) with a condition of period is a salam contaract. Istisna` is valid in the articles which can be definitely fisex with their qualities and amount;no matter whether it is cosumary or not. Istisna also is valid without any period in the materials which are costumarily acceptable for manifacture,like boot-like leahtern sockc for ablution (khuff),some kind of movable waste water cup used for the ablution and copper-boiler. Istisna` without mentioning any period is a sale,it is not just a promise. So the manifacturer can be forced to manifacture it and the one who orders (mustasni`) can not withdraw from it.The sold item is the manifactured article,not the labour. If the manifacturer brings some thing which was manifactured by some one else or he produced it before the contract,then the client takes it,that is valid. It will never be fixed for the client without his consent. So the manifacturer may sell the article for the client before he sees it.He may take or leave it when he sees it. No is tisna is valid in the items which costumarily it is not admissible,like the clothing. Miscellaneous Issues 259 / Sale of the dog,hunting-panther and the other wild fiercing animals are valid,no matter whether they are trained or not. Zimmi in the sale like a muslim,except in alcohol.Alcohol for him is like the vinegard. The pig is for him like the sheep. Any one who joins the bought she-slave before the taking it in the posession,that is lawful,if sex is made with her,that is considered as taking her in the posession,otherwise it is not. Any one buys some thing,then he disappears in away that stil he is known,he is not going to be sold for the debt of the seller. If his being absence is not known,then he is to be sold for the debt of the seller,if a witness proves that the seller is one who sold to the one who is absent,if he did not take it into his posession. If one of the two clients disappear,the one who is present has to pay the whole price and take the item into his posession,and heep it in the custody when the absent appears,he pays for his share. If he buys for the thousand mithqal of gold and silver,each one of them will take half (taht is five hundred gold and five hundred silver). But if he says "with a thousand of gold and silver;then from gold five hundred mithqal and from the silver five hundred dirham,which each ten dirham will weigh seven mithqal. Anu one who buys the false money instead of good money without knowing it,then he spends it or it perishes,that means it was 270 / paid.Abu Yusuf says that it is to be returned like false money and he asks for the good money. If a bird hatches or lays an egg in an earth or a deer enters to any one's ranch,those belong to the one who takes it. Also the prey which is caught in a nest which was fixed to dry up or enters a house are also to belong to the posessor. Dirham and sugar were spread,then they fell on some cloth,if the owner prepared it for that reason or folds it after the spreding or closes the door of the house after the prey enters,then he owns it,no one else has the right of taking it as it is the case if the bee makes honey in his land or a tree grows up there or some dust gathers with the current of flood or water.(These all belong to the owner of the land,not to any body else). The acts which are not good for suspending them to the conditions and the void conditions nullifies them are the sale,renting,devision,approving,withdrawing,amicably setlement,acquitance from the debt,annuling the agency authority,seclusion for the prayer in the mosque,partnership in the cultivation,to make transaction,aknowledging and founding a foundation (waqf). Arbitration is also included to the list according to Abu Yusuf,imam Muhammad has a dissenting view. The contracts which are not invalidated by the void condition are 271/ crediting,donation,giving charity, marriage, divorce, khul`, manumission, pawning, appointing some one as executer of the will, the will,partnership, mudrabah, appointing as judge, appointing as governor, suretyship, transfering the credit to third creditor,authorized agency, cancellation of the contract, mukatabah, authorizing a slave to make business for his patron, claiming that some one is his child, peaceful setlement regarding the the blood of a murder and inhury,an agreement related to zimmah,suspending the returning of the materials to the defect or to the option of condition and the firing of a judge from his office. The Book of Exchange Exchange (al-Sarf) is a sale of the money for the money, both of them being or being not the same type. It is a requirement in exchange that the parties take the exchange items reciprocally before they depart from each other. It is also valid to sell one kind for another kind of money in lumpsum and with some extra amount. But it is not valid the sale of a thing for its kind,except if they are equal in terms of quantity,even if they defer from the point of quality and mould. If they make a sale in lumpsumnthe it is understood before they seperate from each other thatthewy are equal,then the sale is valid. Disposition of in the money of exchange before teking it is not allowed. If he sells gold for the silver and buys with that a cloth before he takes it,so the sale of the cloth is void. 272 / If he purchases for two thousands a she-slave who is equal to the thousand together with a necklace which worth a thousand and pays only one thousand,then it is the value of the necklace.But if he buys her for two thousands,one thousand being immediate payment and one thousand to be paid later,immediate payement is the price of the necklace. If he buys a sword of which decoration is fifty for one hundred and then he pays just fifty,that is the share of the ornament,even if he does not declare it or says it is the price of both of them.If they depart from each other without taking the posession,then it is valid for the sword,not for the ornament,if the ornament can be taken away easily without any damage,otherwise the transaction is void in both of them. If he sells a cup of silver and gets some of the price and then they depart from each other,that is valid only in what he had already taken.And the cup will be shared bu both of them.If some one claims the ownership of some part of the cup,the buyer may take the remaining part of it with his share or give it back. If If some of the lump piece which is purchased, was claimed by any one,then he takes the rest of it for its rate without having any alternative. It is valid the sale of two dirhams and one dinar for two dinars and one dirham,sale of one kurr ( a cup of measurement) of wheat and a kurr of barley for two kurrs of wheat and two kurrs of barley,slae of eleven dirham for ten dirham and one dinar and 273 / sale of pure dirhan and two mixed dirham for two pure dirhams and one mixed dirham also sale of one dinar for ten which is his debt ot just any type of ten,provided the seller delivers immediately the dinar. Any material in which sliver or gold is more in the mixture,is considered as silver and gold. No pure ones can be sold for mixed ones,and also no mixed ones can be sold on e another except if theyy are equal in weight,also it is not permitted to borrow the mixed gold or silver except in weight. If the substance other then these two is more than the gold and silver,then the mixture is considered as a property (arud).So sale of this type for the pure ones is as it is in the ornament on the sword. It is allowed sale of the mixed ones both being same type without observing any equality,provided they take posession reciprocally in the same session. It is also valid selling and buying and borrowing.They are to be valued by weights or counts or by both of them. The mixed ones can be fixed by fixing because it is the price money.If he buys with it and then it becomes worthless,the sale is void,The two imams say that it will not be void. According to Abu Yusuf it is necessary to pay its value at the day of the sale and according to imam Muhammad the value of the last time it was subject of the transaction. The mixed coins which are not having market value can be fixed by specifying them. Any item in which the mixture ingredients are in equal percentage is subjugated to the rules of the mixtures having an ingredient 274 / less than the others when it is used in a sale and a borrowing. The same rule applies to the exchanges.It is said that in exchange it is to be considered as the one in which an ingredient ovecome the others. Sale with valid coins are allowed,even they are not fixed.If they are no valid coins,then differeneces of views are like the loss of the mixed coins. If he borrows and then the money looses its value (kasad),the borrower returns the similar amount from that,according to Abu Yusuf he has to return its value at the day of borrowing,according to imam Muhammad the value of the day which it looses the value. No sale is allowed with moneys which have no market value (rawaj) unless they are specified. Any one who buys some thing with the half of dirham of a fals or daniq (one sixth of a dirham) of a fals or qirat (one out of twelve of a dirham) of fals,then the sale is valid.He has to pay pay what is sold with halves of dirham,daniq and qirat. If any one gives a dirham to the exchanger and says "give me for the half some falses and for the other half half of the dirham with the exception of one grain (habbah)",then the sale is void in all of them.According to two imams it is valid in terms of falses.If he repeats "give me",then it is valid in falses as unanimously accepted. If he says "give me with it half dirham falses and one half (wa nisfan) with the exception of a grain",then that is valid in all of them. The expression of "al-nisf ill habbah (half with the exception of a grain)" meians itself and "al-fulus (falses)" denotes to the remaining part of it. 275 / Book on Suretyship (al-kafalah) It is adding a liabilty to to a liabilty in the sense of demanding the payment,but not in the sense of the debt.Thjis the most authentic view. Suretyship (kafalah) is not validly established except by the ones who owns the capacity of donating any thing. Suretyship is two kinds: Soretyship for the person (al-nafs) and suretyship for the property (mal). The first one gets established by "I stand for suretyship fot his person " or "for his neck" and similar expressinons which mean the whole body or by unspecified fraction of the body,like half of it or one tenth of it and also by "I guarantee him" or "he is on my shoulder" or "to my shoulder" or "I am guarantor of him".But it is not established by "I am guaranteeing (zamin,damin) for his knowledge". It is valid to have two or more guarantors (kafil). It is the obligation of the guarantor to bring the principal debtor if the one the creditor asks for it.If he can nor bring him,then he is to be put behind the bars. If the guarantor fixes any time for delivery,it is binding for him to fulfil it at that time,if the beneficiar asks for it. But if he delivers him before that,he is acquitted from that. If the pricipal debtor gets lost and his location is known,the judge gives the guarantor enough time to go and come back. If the time passes and the guarantor did not bring him,then he imprisons him. If he disappears and his location is not known,so the guarantor is not going to be asked for that. Suretyship expires with the death of the guarantor and the rpincipal debtor,even if the latter is a slave,but not with the 276 / death of the beneficiary suretyship (creditor).His heirs or the exceuter of his will,shall ask the guarantor to fulfil his obligation. The guarantor gets acquitted if he delivers him in any place where the litigation is possible,this so even if the guarantor did not say "I pay it to you,I am acquitted". He will be also acquitted with the delivery of the agent of the gurantor,or his messenger and with the debtor's giving himself in. If bringing him in was stipulated to be done in the presence of the judge,then the guarantor delivers him in the market,they say that he is acquitted.But the preferred view nowadays is that he will not be acquitted. If he submitts him in another city,he will not be acquitted according to two imams.But according to Abu Hanifah he is acquitted. If he brings him in in a no man's land (desert) or in a rural area,he will not be acquitted.It is the same if he submits him in the jail,in a case where a person other than the demander let him be imprisoned. If he stands for suretyship for the person wit the condition that if he does not fulfil it tomorrow,then he will compensate the debt of the debtor,then the next day he does not fulfil it,it becomes his obligation to pay what he owes,this so even if the beneficiary of suretyship dies.He will not be acquitted from the liability for the person. Any one who claims that a person owes him hundred dinars,no matter whteher he defines it or not,and another person satands for suretyship for person with a condition that if he does not relinquish it tomorrow,he himself will pay the hundred,then he does not fulfil it next day,it becomes his obligation to pay the hundred.Imam Muhammad opposes to this view. 277 / A defendant ic not to be forced to provide a guarantor for person in ahad and qisas conciction.But he himself spontaneously does it,that is valid.The two imams are of the opinion that he is not to be forced in qisas (ritaliation) and in the penalty of falsely accusation of a chastite musilm woman (qazf). If the two witnesses who are neither rcleared up or refused from the point of eligiblity to sitnessing, testify in decisive penalty (hadd) or in qisas,he is to be imprisoned.It is also the same rule to apply if one qualified witness testifies.The two imams are of the opposite opinion in one report. It is valid also to give pawn or to stand for suretyship for kharaj. Suretyship for the property is effective,even if it is unknown with a condition that it is a valid debt.The suretyship may be established by "I guarantee for such and such person a thousand" or "what you have upon him" or "what will be transfered to you from this sale". It is also ubder the same rule if the suretyship is suspended to a condition which is goes along with the contract,like the condition that states the necessity of the right,for example "if you sell such person" or "if what some one usurped from you" or "the thing that is his duty to pay you" and "If some one claims the ownership of the sold material,then I guarantee it". Or like a condition of asking for fulfilment,for instance "if zaid comes,he is guaranteed ". And the condition of the impossibility of the relinquishing it,like "if he disappears from the city,it is my obligation". If he suspends the suretyship simply to a condition, like blowing of the wind or the advent of the rain,then that void. It is the same rule if one of the two examples is fixed a period (ajal).In this last case the condition gets void,but the 278 / suretyship is valid and the property gets due immediately. The claimant may appeal any thing from the guarantor or from the principal debtor,except in the case that the acquitance of the principal debtor is put as condition.Then the suretyship in this last case changes to hawalah (transfering the liablity of paying the debt to a third person). As it is the situation that hawalah with a condition that the debtor will not be acquitted is a kafalah (suretyship). If the creditor demands from one of them,he also demands from the other one. If a person guarantees the property of any one which due upon a third person,then the demander proves that it was a thousand,the guarantor has to pay that.If he does not prove,the guarantor is to be taken as true in what he aknowledges together with his oath and also the principal dentor also is to be accepted in his aknowledgement as having more upon himself only. If the guarantor guarantees without having any authority from the debtor,so he will not appeal to him for what he pays as suretyship. But if the guaranteed person approves it or the suretyship occurs with the permission of the debtor,then he may appeal to reimbursment. The guarantor has no right to appeal to the guaranteed parson before he pays and fulfils his suretyship duty. If the gaurantor is appealed to do his duty,then he may appeal to the guaranteed. If the guarantor is imprisoned,then he has right to imprison the the principal debtor. The guarantor gets acquitted by the fulfilment of the principal debtor's duty. If the beneficiary of the suretyship acquits the proincipal debtor or delays the fulfilment,then the guarantor also gets acquitted and his liability of fulfilment gets delayed. If if he acqits the guarantor or delays his payment,the principal debtor does not get acquitted and his payment does not get delayed. If the guarantor gurantees an immediately to be paid debt as 279 / delayed to a certain period,then the debt of the principal debtor gets also delayed. If the guarantor settles peacefully the the debt of a thousan for a hundred,both of them (the guarantor and the principal debtor) get acquitted.And the guarantor may appeal to the principal debtor for the payment ha has done only,if he stood for suretyship with his permission. If the guarantor settls the payment of a thousand by giving some thing which is not the same type,then he has right to appeal to the principal debtor for a thousand. If the guarantor settls his obligation peacefull,then he himself gets acquitted,not the principal debtor. If the creditor says to a guarantor who has a permission from the principa; debtor "you are acquitted for me from the property you guarantee",then he returns to the principal debtor.According to Abu Yusuf it is the same rule if he says "you are acquitted".Imam Muhammad has a dissenting view. If he says "I let you be acquitted", he will not appeal. If the demander (creditor) is present,one needs to contact with him for clarification in all of them. It is not effective to suspend the acuittance from the suretyship to a condition like other acquittances.But the preferred view is that it is valid. No suretyship is allowed in what is not possible to ask for fulfilment of the guarantor,like decisive penalties and qisas,or the things which are guaranteed with other things,like the sold material andguaranteed with a pawn,also it is not valid to guarantee trusts,like deposits,borrowed for benefit,hired,mudarabah property,property of partnership. Alaso no guarantee is permitted for a debt which is not valid,like the amount for mukatabah.There is no difference 280 / whether a free person or a slave guarantees it. Also it is no valid to guarantee the slaves's way of fulfilment his payment by serving personally for a certain period to the beneficiary.This is according to Abu Hanifah. No suretyships are valid for the debts of loading on a specific horse or camel or service of a specific slave,contrary to the unspecified ones in the both of latter cases,for the dead bankrupt person,the imams oppose to this latter point. Also it is not valid if there is no acceptance of the demander (beneficiary from the suretyship) in the same sitting. Abu Yusuf says that the suretyship is allowed if the beneficiary is absent,provided when the news reches to him,he approves it. If the ill person says to his heir "guarantee for me what I am liable for",then he guarantees when the dentors are absent,that is valid according to unanimously accepted view. If he says to a third person,then the scholars got different views. Suretyship is allowed in the the things which are guaranteed by themselves,like the things already taken in posession with the bargaining of the purcshase,the usurped material and the voidably sold materials and delivering the sold material to the buyer and delivering the the material used for the pawn to pawner,and the hired one to the hirer and also delivering the price. Chapter If the principal debtor delivers the property to the guarantor before the guarantor fdulfils his duty to the demander,he does not get it bach from the guarantor. Whatever the guarantor gains from it,it belongs to him.He does no need to give it in charity.But to give it to the principal 281 / owner,is better,if the thing which was paid is some thing can be specified by defining it,like the wheat.The two imams are of the opposite opinion. If the pricipal debtor instructs the guarantor to buy for him a cloth to be payed in istalments as iinah transaction,then he does it,the cloth in this case belongs to the guarantor.The profit which made is to be paid to the seller is his duty. Any who guarantees to another person (creditor) that it is his liability to guarantee what he has to get from the debtor or whatever has been decided that the debtor has to pay him,then the debtor disappears,the demander (creditor) proves to the guarantor that he has a a thousand as a credit on the debtor,that will not be acceptable.If it was proved in the court that Zaid owes him a thousand and this person is his authorized guarantor,it is to be decided that the two of them (guarantor and the principal debtor) are liable to pay the debt.If the guarantor was not authorized,then the decision must be that the guarantor only has to pay the debt. The Darak gurantee (that is the buyer gets a pawn from the the seller for his money which already paid as an insurance against any claim may be done that the sold material is owned by a third person) for the buyer while the transaction is made ,is considered as deliverance and it nullifies the claim of the guarantor about the sold item after the guarantee. The claim is also void if a witness wites his testimony in an official document in which he says that the seller sold the item or the sale contract was decisively done and seals it. This is opposite of the case that he writes his testimony on the aknowledgements of the two contracting parties. The guaranteeing of the agent (wakil) in a sale,the payment of the the price for the delegator (muwakkil) is also void. Also the the guarantee of a mudarib the payment to the owner of the capital and the auaranteeing of one of the copartner's the share of the other partner from the price of what both sold in one transaction are invalid.That is valid if it has been done in two transactions. 282 / Guaranteeing of Darak,and kharaj and division (qismah) are valid.Also the guaranteeing of disasters,no matter whether they are related to a right,like excavating a river,paying the salary of the guard or it is not related to any right,like collections of the taxes. Guaranteeing of al-~ahdah (means leterally taking the liability on the shoulder,but the word has other meanings) is void. And laos guaranteeing of khalas (to take the sold item from claimant anf give it to the buyer) is also invalid;but two imams disagree in this point. If the guarantor says that "I guranteed it for a month" and the demander says "now",the word od guarantor is to be followed.But if the same case happens in an aknowledgement,then the word of the person for whome aknowledgement is made (al-muqarru lah) is to be based on. A guarantor of darak is not to be asked for fulkfilment,if the sold material is claimed by a third person,until it is decided that the price must be paid by the seller. Chapter on the Suteryship where two men and slaves are involved Two of them heve one debt,each one of them guarantees the other's part.So any one of them who pays may not appeal for that to the other,except if what he has paid exceeds the half. If both of them stood for suretyship for a property owed by a third person,ensc one to the wo guarantees the other party's share,then what is paid by any one of them,may be appealed by him for half of it to the other partner or for all of it to the principal debtor,if the suretyship is established by his authorization. If the demander acquits one of them,then he may sue the other one for the whole of the liabilty. If the partnership of mufawadah is annulled,then the creditor has the right of demanding from any one of the two partners all 283 / of the debt.And whetever is paid by one of them,he will not appeal for it to the other partner as long as it does not exceed the half. When two slaves are subject to one contract of mukatabah and each one of them stands for suretyship for the other,then each one of them appeals to the other for half of what he has paid. If a patron emancipates one of them before the fulfilment of the debt,that is valid.The patron has the right of getting the share other one from as a real owner of it and from the manumitted one as a rigth stemming from guaranteeing. The manumitted person mat appeal to his frend only for what he had paid. If a slave owes some thing to any one,that will not be binding for him to pay excep after he is emancipated.If any one guarantees the debt of a slave without any restriction,the liability is immedite liabilty. If the guarantor pays it,then he will not appeal to to the slave until he is manumitted. If a person claims the ownership of a slave,then another person guarantees him,then the slave dies,and the the claimant proves that he was his own,the gurantor has pay his value. If a patron guarantees for his slave with his consent or a slave who no debt guarantees for his patron,then the slave gets emancipated,any one of the two who pays any thing will not appeal to the other. Book of Transfering Debt (al-Hawalah) It is a transfer of the debt from one liability (zimmah) to another liability. It is valid in debts,nou in the things with acceptance of the person who ownssome thing or right or credit (al-muhtal) and the person who admits transfer of the debt (al-muhal alaih) and it is said that also the acceptance of the debtor (al-muhil) are necessary. Whenever the transfer is completed,then the debtor gets acquitted by the acceptance. Muhtal does not take any thing from the assets of the transferer after he dies,but he takes a suretyship from his heirs or creditors for fear of the perish. So the creditor will not appeal to transferer,except if his right perishes.That happens when the one who accepted the transfer dies in bankrupcy or he denies the transaction of the transfer provided he swears,and there is no evidence to prove it. According to two imams he gets the right of appealing by the decision of a judge on the bankrupcy of the personn who accepts the transfer. Transfer of debt is valid in the dirhams which are deposited for trust (wadi`ah). The one who accepts the transfer gets acquitted by the perish of the deposited things. It is also valid in the usurped materials,but the usurper will not be acquitted from its perish. When the transfer is of the debt is restricted with debt,deposited materials or usurpation,in this case the transferer will demand from the person who accepts the transfer as the owner of the thing (creditor) is equal to the creditors of the transferer after the transferer dies. If there is no restriction on the transfer,then the transferer has the right of asking for it. Transfer of the debt will not be void by by the taking of the transferer what the accepter owes to do or he has with him. When the accepter of the transfer ask the transferer the same amount of what he tarnsfered and he says "Itransfered it for the 285 / credit you owe me",that is not acceptable without any prove.If the trasferer asks the creditor for what he had transfered,then he says "you transfered it against a credit you owe to me",that is also not acceptable without any proof. Bill of exchange (suftaja) is reprehensible.That is crediting for the danger of the road. Book of the Trial (al-qada') Judiciary job (al-qada') is one of the strongest fard duties and the best of worships (prayers). The persons who are eligible to be witness are eligible to be judges. The requirements for the capacity of a judge are requirements which are the for the witnesses. A sinner (al-fasiq) is eligible for this job.His appointment to the job is valid,but he is not to be preferred to be appointed,as acceptance his testimony is valid,but it is not to be accepted. If a qualified judge (`adl) falls in a sinn (fisq),then he deserves to be fired. He is not automatically left out from the office according to Zahir al-Mazhab (the views dominant in the the schools of thoughts).Our jurists are in this track. If a judge takes the office by bribe,he is not accepted as judge. A sinner (al-fasiq) is appropriate to be mufti.It is said that,it is not. A judge must not be tough,strict,arrogant and stubborn. He has to be trustworthy in his religion,his decency,mind,his piety,undrstanding and knowledge of sunnah and the reports made 286 / from the Companions and the varieties of Fiqh (Islamic Law) points. He has to be mufti too. Ijtihad (being able to solve the new problems with his dicretion and knowledge according to Qur'an and Sunnah) is the requirement of being preferred. To appint an ignorant (jahil) to this office is permissible.But the leader (imam) has to choose the mosdt capable and the best one. It is a reprehensible act the office to be taken by one who fears the from inflicting unjustice and tresspassion the limits (al-haif) and incapacity to execute it properly. There is no problem to appoint a person who is confident to that he would fulfil the obligatory elements of it. Any one who is just only person eligible for that office,is fard to take the office. No one must be eager to be judge and ask for the office. The appointment made by an unjust leader (sultan jair) or by belligerents is permissible,except if the belligerents do not allow him to excercise justice rightfully. When the new judge takes the office,he asks for diwan (the records of the judge served before him),in which the books of registrations and the minutes etc. are kept. He sends two trustworthy persons to take them in the presence of the deposed judge or his agent.They ask him one by one and put each one of them in a sack seperately. The judge ispects the inmates.Any one who aknowledges the right or any evidence stands against him,the judhe has to enforce it. He does not act with the words of the deposed judge. If he can not find any thing about the inmate,he has to annouce 287 / about it and then he releases him after he scrutinizes his case. The judge manages the trusts and the incomes of the foundations based on the evidences and aknowl;edgements of the people in charge,not with the words of the deposed person,except if the person in charge of it aknowledges that he delivered it to the judge. The judge will sit in a publicly known place in the mosque (masjid).bu it better if he sitts in the entral mosque (jami`). If he sitts in his home and allows the public to access to him,that is not so bad. He has not to accept any gift,except in from his own relatives or from the people who are traditionally he is used to exchange gifts,provided they have no issue of conflict to be looked at by him.And the gift must not exceed the normally acceptable level. The judge may attend genaral invitations,not private ones.The private ones are the invitations which are not to be arranged if he does not attend. He may attend the funeral ceremonies,visit the patients,empolys the interpreter and a just clerk. he treats equally to the litigants in the sense of sitting,approach and looking. He will not speak with one of them in privacy ang makes any hints to him,will not host him wthout having the otjer party. He will not smile to any one of them and will not make any joke with one of them. He will not show a way to prove to any one of them.It is also repugnant his showing the way to the witness by saying him "Do you testify so and so" . Abu Yusuf sees it good in the cases where there is no accusation. He will not sell or buy any thing in his sitting.He will not joke too. 288 / If he has any problem or slumber or is angry or hungry,thirsty and any need,then he abstains from excercising his capacity in looking at the case. When the two litigants proceed to the judge,if he wishes he says "what is the matter with you" or he keeps silent.If one of them speaks,then he lets the other one keep quiet. Chapter When a right is established for the claimant and he demands for the imrisonment of the defendant,if the truth is established by the aknowledment of the defendant,the judge will not imprison him,otherwise the judge instructs him to fulfill his obligation and he abstains to do that. If the right is established by the evidence,then the judge puts him into jail before ordering him to pay.It is said that he does not. If the convicted person claims that he is poor,then the judge imprisons him for every item he owes to as paymernt for a property,like the price of a thing or a credit or his own freely undertaken duty,like the advanced dowry and the suretyship.The judge will not imprison him in other cases,except the other party provbes that he has some thing to pay.He imprisonshim for a period which he thinks that if he has any thing as property,he would produce it.This is the correct opinion. It is said that he imprisons him two or three months.If no property comes out from him,then he releases him,except in the positions where his defendant proves that he is well-to-do before the judge puts him in the jail.Scholars are generally of this opinion. A husband can be imprisoned for his duty of maintenace to his 289 / wife.But no father is to be imprisoned for the debt of his child,except if he declines from spending for his meaintenance. If he gets ill in the jail,he is not going to be released,if there is any one who will serve him in the jail,otherwise he is to be released. Any professional will be facilitated to exceicise his profession in the prison.This is the correct view. But he will be allowed to have sex with her she-slave if there is a private room. When the time expires and nothing from his property comes out,then the judge releases him. The judge will not prevent the creditors to follow him (mulazamah),on the contrary they follow him step by step. The creditors have not to impede him from making transactions and traveling,so that they may get the earnigs which will be distributed among them according to the proprotions of their credits. The creditors' following (mulazamah)) means to watch him and to go with him whereever he goes.If he enters his home,they sit out side the door. If the credit is owed by a woman to a man,the man does not follow her by himself,but he sends a lady who will follow her. The two imams say that if the judge declares him as bankrupt he does not leave the creditors to take the law by their hands until they prove that he has any thing to pay. Chapter When the witnesses testify against the present person,the judge records the testimony and also records in the recordings book (sijill). If they testify against an absentee,the judge will not decide besed on the testimony,but he records it to facilitate the one 290 / whom he will write to (another judge) decide based on it. The recording-letter (kitab) is a letter sent by a judge to another judge.But there is another juducial recording-letter.That is a letter which transfers the testimony to the original judge. Writing a letter by a judge to amother is acceptable in the areas where do not get invalidated by the doubt,such as the debt and the land,marriage,blood relation,usurpation,deposit and mudarabah partnership,the latter two are being denied. It is reported from Imam Muhammad that it is acceptable in the items which are movable.The later scholars are of this opinion.Fatwa is to be based on it. The letter has to be addressed to the known judge by statting that "from such and such to such and such" mentioning his and the addressed judge's identities,if he wishes,then he says "to whom it may reach from the judges of the muslims". Then he reads the text to the witnesses he wants to make them bear witness and let them know what is the content of the book,the names of the witnesses are to be inculded in the letter,then he seals it in their presence,asks them to keep what is in it in their minds and delivers it to them. Abu Yusuf did not put any condition except the letting them witness that it is a letter in his prectice when he was to be in charge of the judgment office. al-Sarakhsi prefers his view. And the personal experience is not like a news heard about. When the letter reaches to addresse he looks at the seal and does not accept it without the presence of the accused person and at 291 / witnesses of two men or one man and two women that it is the letter of such and such judge.He read it to us and sealed it and submitted it to us in his court session. According to Abu Yusuf the testimony will be "it is a letter of such and such of judge,he sealed it".It is reported fro him also that the seal is not a requirement. When they testify like that,then he opens it and reads it to the other party (accused) and forces him to fulfil what it is in. Ther letter gets ivaldated by the death of the sending judge or his deposition before the letter reaches to the addresse and by the death of the addressee,except if the sender writes after his name "to whom it may reach from the judges of the muslims". It will not be invalid by the death of the other party,it will be effective against his heirs. If a judge knows any thing related to the rights of the humans (huquq al-`ibad) from the time of his term in the office in the reign of his authority,he may pass a decision based on it. Chapter It is permissible to appoint a woman into the office of judge for the cases other than decisive penalties (hudud) and retaliation. A judge may not delegate any one else without any clear authority,this on the contrary to the one who is authorized to establish the friday prayer. When some one becomes a delegated judge,he is not deposed automatically with the deposition of the delagator judge,also with his death.On the contrary,he is the acting judge representing the leadership of the community. 292 / If the judge who is delegated by a judge who is not authorized to delegate decides while the delegator is present or he is absent,then the first judge approves it,that is effective as it in the agency (wakalah). When a matter is brought to a judge the verdict of another judge about any thing in which there were differences of views in the time of the fdirst generation (the Companions of the Prophet Muhammad,pbuh),he executes it if it is not against the Qur'an and well known tradition or consensus (Ijma`). In any point on which the majority agrees,the opinions of minority is not countable. Any verdict passed about the lawfulness and unlawfulness is executable in the wordly as well as in the spiritual areas,even if it is based on the false testimony,if it was claimed because of the specific reason.According to two imams that will not be effecticve in the spiritual area if it is based on the false testimony. If a lady brings a false evidence that a man married her and then the judge decided on the marrige,then it is lawful for her to let him make sex with her.The two imams oppose to this idea. But in the area of ownership without any limitation the false testimony will not be effective from the spiritual point of view,according to a unanimousl;y accepted point. Any decision given willingly or unwillingly against his own view in the matters which fall to the area of discretion (ijtihad) will not be effective according to two imams.This is the point to be depended for fatwas.According to Abu Hanifah it is effective if it occuirs unintentionally.But there two conflicting opinions in the cases of intentionally occurance. The judge does not give any verdict regarding the absentee,except in the presence of his real representative,such as his agent (wakil) or legally acting person on his behalf,such as exceutive of the will,who is appointed by the judge or judicially acceptable agent;like any thing which is alleged 293 / against the absentee was the cause for some thing which is claimed against the present one. Any thing which claimed against the absentee if it is the condition,that is is not effective. The judge may give as credit the property of the orphans and records it as a right in his decisions. But to do that is not permitted to the executive of the will and alos not for the father according to the most correct opinion. Chapter If the two parties appoint any one who isd eligible to be hudge as arbitrator to solve their conflict,that is effective. The decision of the arbitrator is binding upon the both of them if it is based on the evidemce,or aknowledgment or revoking or informing of the confession of the two litigants or their being eligible witnesses (`adalah) while he had in the office. Each one of the parties has the right of rescinding the arbitration before he gives his decision.But not after that. If the decision is taken into the judge,he just executes it if it is according to his way of understanding,otherwise he annuls it. No arbitration is allowed in the cases of definite sever crimes (hududs) and retaliation (qisas). Arbitration is valid in all the areas of discretion (ijtihad). The two imams say that arbitration is not good to be based in a fatwa,lest the people get encouraged to the acts out of proportion. If the the two litigants appoint a third person as an arbitrator in the area of the blood occured by mistake,then he he decides basing on the evidence for the the blood money to be paid by relatives (al-`aqilah,clan and tribe of the culprit),that will not be effective. No decison of arbitrator or the public servant is valid if it is in favour of his parents,or child or wife.But if it is against them,that is valid. The decison of the arbitrator is also valid for aor against the one who appoints him. 294 / Miscellaneous Issues There is no right for any one who posess the lower part of a building of which the upper part is owned by another individual to make any break or a window in the lower part without the consent the person owning the upper part. The one who owns the upper part,has no no right of buildreing any thing upon the lower level.The two imams say that each one of them has the right of doing any thing in which there is no harm without the consent of other part.It is said that their view is a reflection of the view of Abu Hanifah. The people who have houses at the corner of a branch stemming from a main rectangular openended way and not going thru,may not open opening for the doors to the the branch which is rectangular too.But if the rectangular branch is going thru or it is a semi- circular of which both ends are open to the main rectangular road. Any one who claims that some thing was donated to him some times before,then he was asked for an evidence,he says "the onation was denied to me,then I bought fom the donater",or he does not say something like that,if he proves that the purchase was after the donation occured,then the proof is accepted.But if it is before,it will not be accepted. Any one who claims that Zaid purchased a she-slave,but Zaid denied it and left the sue against Zaid,it is lawful for him to make sex with her. Any one who aknowledges the taking of the ten and allegesthat 295 / they are not real coins (zuyuf-spurious) or acceptable among business (nabahrajah) people his word is to be taken as true. But the case will be just opposite if he claims that the coins were mixed with some metals in an ovewhelming rate (satuqah). He is no to be taken as true if he confesses the reception of the good money or the right taking it or its price or its reception. Zayf (plural is zuyuf) is a money which is reported to be rejected.Nabahrajah is the money which is rejected by the trademen.Satuqah is the money on which the mixture is more than that the original. Any one who aknowledges saying "some body owes me one thousand,nothing is due upon you",then he says in the same sitting "yes,you owe me one thousand",that will not be acceptable from him without any proof,contrary to the case in which some the buyer denies some one who says "you bought from me this",then he accepts it after the denial. Any one who says to some body who alleges saying "you me some thing" rejecting him "I do not owe you any thing at all",the lleger produced the proof and the defendant also proved that he has already paid or he was acquitted,then this is acceptable.But if the defendant adds to his rejection "I do not know you",then it is not acceptable. Any one who claims some thing against the another person that he has sold his she-slave to him,and the defendant wanted to reject it because of the defect,but he refutes it,the claimant proved the sale and the rejecter also proves that there was no defects at all,in this case the prove of the rejecter is not taken. If he mentions the expression of "by Allah's will (insha Allah)" 296 / attheendthe document,that will annull the whole document,According to two imams it will annull onlt the last part of it. This is what the muslims see as good. Chapter A christian died,his wife says tha "I converted to Islam before his death",his heir says "no,before that",the word of the heir is to be taken. It is the same id a muslim man dies,his wife says "I accepted Islam befdore his death" and the inharitant says "no,after that". If the person by whom some thing is deposited says "this is the sone of the depositer who deposited this ariecle with me,he died and he left no heir other tahn his son",the depository item is to be given to him. If he says about another person "this is too his son",but the first sone refuses the second son,the verdict will be in favour of the first son. If the estate of a deceased are devided among the heirs and creditors based on a testimony,in which they do not say "we do not know any other heir or creditor for him",no guarantor is to be taken from them.Taking a guarantee is an oppression.According to two imams a guarantee will be taken. Any who claims the right of inheritance on an immovable assets 297 / for him and for his brother who is absent annd proves it,half of it wlii be given to the claimant and the rest will be left in the hand of the one who holds it temporarily but not owning it (zu 'l-yad),without getting any guarantee from him,even if he denies it. The two imams say that if he is a denier,then the remaning half is to be taken from him and put in in the hand ofa trustworthy person. But if the above item is the movable,a gurantee is to be taken from the holder it temporarily according to unanimously accepted view.It is said that the situation in the movables is also like the differences of views in the immovables. When the absent person shows up,then his hare will be given to him without any further looking at the proof. Any one who bequeathes one third of the estate,that means third of every thing owned by him.If he says "my property (mali)" or "what I posess is the chairity (sadaqah)" then that means zakah (almsgiving).The land of the one tenth tax (al-`ushr) is included to it according to Abu Yusuf.Imam Muhamd has just opposite opinion. If he has nothing more than the charity property,then he holds back some part of it as his food;if he gets any property,then he gives away the amount he held back as charity. Any one who was appointed in a will as a executor and he didknow it,he is considered as executor (wasiyy) contrary to delegate an agent (tawkil). One individual's informing for the delegation is acceptable,even if he is a sinner,but not infiring him from that task.Here in firing the information of an eligible (`adl) individual or two oerson whose status are not known (masturayn) are necessary. The two imams say that the last situation is like the former one. The differences of views about the patrons information that his 298 / slave murdered a person,pre-emptor about the buying,the virgin about the marriage and a muslim who did not migrate about the laws, these are all like that. If a judge or his agent sells a slave of the debtor for the creditors and gets his price,but the price (or its value) perishes and the slave was claimed as the posession of a third person,he has no obligation of compensating the loss.He buyer may appeal to the creditors for compensation. If the executor sells the slave for the creditors with the instruction of the judge,then the slave was calimed by a third person or he dies before the buyer toke it into his posession and the property is lost,the buyer will appeal to to the executor and the executor appeals to the creditors. If a just and knowledgable judge says to you "I convicted this person with death by stoning (al-rajm)" or "his hand to be chopped" or "to be beaten" and "execute it",it is permissible for you to execute that.The situation is the same if the judge is just but knowledgable,provided his interpretation is found good after being asked for that;otherwise no. No action can be based on the verdict of non-just in any way,as long as he does not declare the sources of his verdict. If a former judge says to a person "I received from you one thousand and submitted it to such a person,so I decided a thousand against you" or he says "I decided for choping your hand for a right established",but the addressee said that "no,you took it" or "chopped my hand" wrongly and the person (judge) aknowledged that it happened during his office term,the judge is to be taken as true,no need of his taknig an oath. If the person says "you did it before the term of the office" and 299 / the judge claimed that it was in his office-period,then the word of the judge is to be taken here too.This the correct view. If any one who chopped the hand or took some thing claims as the judge did in former issue,he has to compensate it here,but not in the previous case. 43