Book of Testimonies Testimony is informing a bout a right of a person against another person based on seeing,not on guessing. Any one who is a witness solily having no body else,then he has no choice of declining from it.It becomes obligatory to fullfill the testimony after he is fixed as only one to do that,when he is asked for that,except if the right gets established without him. It is better for him not to disclose in the decisive penalties (hudud).He says in theft "he took",not "he stole". It is a requirement for adultery to have for male witnesses,for the retaliation and other decisive penalties (hudud) two witnesses. For the birth,virginity,the defects related to the womanhood and which no man may be aware of,a woman witness is necessary.It is also a woman witness is necessary for alive birth of a child,the testimony here to besed on for the funeral prayer,not the inheritance,buthe two imams say that her testimony will work for the the inheritance as well. For the cases other then those two males or one male and two women,no matter whether it is related to the property or not,like the marriage and foster relation,devorce,agency and will. Requirements of all types of witnesses are freedom,being muslim,justice (`adalah) and usage of the word witnessing 300 / (shadah). It is not valid if he says "I know" or "I certainly believe". The judge is not going to dig the credibility of the witness withgout being raised by other party,except in the definitive type of crimes (hudud) or retaliation.According to two imams the judge is going to investigate privately as well as publicly in the areas other than last two points.The religious opinion is to be given based on this last view. A secret (private) investigation is sufficient.It suffices to say "he is just (`adl)" according to the correct view.It is said that it is necessary to say "he is just and eligible to testify". But the defendant can not say "the witness is just,but he made a mistake" or "he forgot".If he says "the witness is just and right",then the claimed right gets established. One person is sufficient to to privately clear up (tazkiyah) a witness,or translation as w messenger to the person who was cleared up.But two witnesses are better.According to imam Muhammad it is necessary to have two witnesses. Freedom is the requirement in open type of clearing up (tazkiyah),but not in secrecy. Chapter The witness testifies in all of what he heard or saw,like sale,aknowledfgment,decision of a judge,anger and murder.This is so even if no one testifies against it.He says "I testify (ashhadu)".He does not say "So ans so person let me testify". He does not testify upon the tetimony of any one else if he hears his testimony or letting a third peson testify in that regard as long as he himself is not fixed as witness for that case. A witness,a judge or a narrator of the saying of the Prophet can 301 / not act based on a handwriting if he does not remember.According to two imams it is good if it was kept in his hand. No one may testify about any thing he did not see,except blood relation,death,marriage,privacy between the couples,jurisdiction of a judge and the origin of a foundation,provided he is informed by the two just males or one male and two females whom he trusts. But in the death issue a just person is sufficient,even if it is she,according to the preferred opinion. A person who sees a third person sitting in the court where the litigannts were appearing,testifies as he was the judge.Any one who sees a man and a woman living to gether in a house and they have marital telation with each other,testifies that she was his wife. Any one who sees ant thing other than a human being in the hand of a person who disposing on it a s the owner of that thing he testifies that it bnelongs to him if he feels like that in his heart.He also may testify that it is under his ownership for hiuman being who he knows that he is a slave or a minor who is unable to express by himself. If the witness declares that his own tesdtimony was based on hearing the others or his examination with hjis hand,the judge does not accept the testimony. Any one who testifies that he attended the burial ceremony or prayed funeral prayer for the body of Zaid,the testimony is acceptable;since this is itself a seeing. Chapter on whose testimny is acceptable and whose not The testimony of a blind person is not acceptable.Abu Yusuf has an opposing opinion in the matters which the blind person sees before he becomes blind. Also the testomonies of the slave and minor are nor 302 / acceptable,except if they get it when they are respectively slave and minor and testify after they are respectively emancipated and reached to puberty. A testimony of the one who was penalized in hadd crime of slandaring a muslim wrongly,even if he repents;except if he was penalized before he accepts Islam,after that he becomes muslim. Also the testimony of a witness regarding his parents and ancestors,no matter how far it goes up,his offspring,no matter how far it goes down,his slave,his mukatab,one of the couple's testimony for the other spouse,one of the share-holders for the other part,the testimony being confined to their corporation. Alkso the testonies of the following people are not acceptable: a gay who is involved in bad act,professional weeper after the death (al-na'ihah),a singer woman,a person having enimosity because of the wordly causes against his counterpart,alcoholics having involvement in the entertainments with instruments,any one who plays with birds or lute or sings to the public,or plays wit cards,or gambles with chess,or misses prayers because of his involvement in the chess play,or commits things which necessitates the severe penal;ty (hadd) or eats interest,or enters the public bathing rooms without cobering his/her awrah parts of the body,or he acts in a way which leads to the mockery and unseriousness like urinating and eating in the street,or swearing upon the early good muslims (al-salaf). The following testimonies are acceptable:testimonies made regarding his brother,his uncle,unmarriable lever relative blood rerlation wise or relation stemmming from the marriage,tesiminies of the people of the lust with the exception of al-Khtatabiyyah group,testimony of a zimmi for another zimmi,even if their religions are different,also his testimony against the passportholder non-muslim in a muslim country (musta'min),but not vice versa,testimony of a musta'min against another musta'min,if they are from the same country and the enimy because of religious things. 303 / The testimonies of the following people are also acceptable: a person who intends to do small sins,provided he abstains frombig (kabirah) sins and his goodnessovercomes his faults,a person who is not circumcised,whose testacles are removed, a child of adultery,a person having both of the male and female organs,state employees (`ummal),and thetestimonyofa manumitted person about a case related to his manumitter. The creterion is the state of the witness at the time of the testimony,not at the time of the event. If he testifies that his parents made a wil for Zaid and Zaid also claims it,the testimony is acceptable;if Zaid rejects it,it is not acceptable.If the two sons testify that their absentee father delegated Zaid,the testimony is not acceptable,even if Zaid claims it. If the two debtors of a dead person testify that he bequeathed for Zaid and Zaid's claim corresponds to it,the testimony is acceptable.The same rule will be applied if the two debtors of a deceased,the wto person for whom a will is made or the two executers of a will testify. Testimony accusing simply so that the person bbecomes sinful (fasiq) without establishing any right for any one according to Islamic Law,like he is sinful or eater of interest,or he paid for the testimony. The testimony of the claimant on the unrightousness of the witnesses is acceptable.Also his testimnony about that they were slaves or penalized in Qazf crime,or they were alcoholics,or just slanderers or in cooperation with the claimant or hired them for the testimony with such amount or he gave them for what I have with him or I settled the matter peacefully for such or I have paid them for that they would not testify against me,then they testified. Any one who testifies and still he did not depart from that place and he said I made mistake in some of my testimony,it is acceptable,provided he is just (`adl). 304 / Chapter on Discripancies in the Testimonies Testimony mous correspond to the claim.If the plaintiff claims that he got the house buying or by inheritance and the two witnesses testify on the ownership only,the testimony is to be rejected.But the case of vice versa is acceptable. It is also necessary that two witnesses agree on the sentence and the meaning.So the testimony is not acceptable if one of them testifies about thousand,or hundred or divorce and the other witness testifies on two thousands,two hundreds and twwo divorces or three divorces.According to two imams the testimony is acceptable for the least amount. If one of the witnesses testify about a thousand and the other about about a thousand and one hundred and the claimant claims the heighest one,then the thousand is to be acceptable. The same rule will work one the testimonies about a hundred and a hundred and ten and one divorce and one and half divorces. If the two witnesses testify on one thousand or on accrediting a thousand and onew of them says that so much of them have been paid from that,the tesmony for thousand is acceptable,but not the part related to the payment until the other witness testifyies for that.And it is necessary for one who knows not to testify until the claimant aknowledges it. If the two witnesses testify that acertain person murdered Zaid in Makka at the Sacrificial Feast day and other two witnesses testify that he was killed at the same feast day in Kufah,both of the testimonies are to be rejected. If a verdict has been passed on one of them,then the the later one is void. If the two witnesses testify about the theft of a cow,but they disagree on its color,then the hand of the thief is to be chopped.But if the two witnesses disagree on the malehood and 305 / femalehood,then the hand is not to be cut off.According to two imams the hand is not to be cut off in both of the cases. In the field of usurpation it will not be unanimously accepted. If one of the witnesses testify on the buying a slave or on making mukatabah with him against one thousand and the other one on one thousand and one hundred,both of them are to be rejected. The same way the testimonies on the manumission against a property and peaceful setlement in retaliation,and collateral and khul` type of divorce in the cases of a slave,a killer,a pawner and a woman claims it respectively.If the other litigant is the one who claims,then that becomes like the claim of a credit (debt). Lesing is like a sale at the beginning of lease period and like the debt atfter it. In marriage it will be accepted for the thousand as some thing acceptable by the mauslim public (istihsanan).But there is no difference in claiming the least level or highest level in the marriage.The two imams say that it will be rejected in marriage as well. It is necessary to attach the assets of the deceased to the heirs in an inheritance problem by saying "a certain person died and he left the inheritance for the claimant" or "a person died,this is his property,or what he had in his hand".Abu Yusuf is of the opposite opinion. If he says "this was for the father of the claimant,he rented it to the holder (zu'l-yad)" or "he deposited it to him" then the testimony is acceptable without atribution. If the two witnesses testify that "this thing was in the hand the claimant sinece so and so",it will be rejected.If they testify that "this thing was his property",then it will be accepted. If the defendant aknowledges that it was in the hand of the 306 / claimant,he is to be instructed to give it back.The same rule to be applied if the two testify about his aknowwledgment. Chapter on testifying on the testimony It is acceptable in the procedures other than decisive crimes (hadd) and retaliation (qawad),it is good even if the testimony is a repeated one. It is a requirement that the presence of the original witness has to be impossible because of death,or sickness or being on journey and it is also necessary that for each original witness two persons have to testify.But it is not necessary for every witness to have seperate individuals as secondary witnesses. The testimonial procedure is like this: The original must have said "I let you witness that I witness so and so".Secondary witnesses say during their testimony "I testify that such a such person made me witness that he witnessed so and so and told me (you testify on my testimony fo such and such". The clearance (tazkiyah) of the original witness by the secondary witnesses is allowed and also one of the witnesses may clear the other.If the secondary witness keeps silent, that is also lawful. According to Abu Yusuf the judge has to look at the status of the original witness.Imam Muhammad says that the testinmony of the secondary witness is to be rejected. The testimonies of the secondary witnesses are to be void by the denial of the original testimony. If the two secondary witnesses testify on the testimony of a lady that she witnessed that certain woman was so ans so and the two said that the two original witnesses informed them that they knew her,if the claimant brings a woman whom the witnesses did not know whether she was the same lady or npt,the claomant in this case is to be told "bring two witnesses that she was it". Transfering the testimony also has the same rule.If the two witnesse say in both of the previous cases that she was from the tribe of Tamim,that is not sifficient;they must say her bronch as well. 307 / The description gets completed if her grandfather,her branch of the clan,or her speciall type of attachment to her clan is mentioned. Attacchment o f an individual to a city or to a big locality is not specific type attachment (ammah).But to attach to a smol street is special one. Chapter on Revoking the testimony To draw back is not valid,except in the presence of the judge. If the defendant (one against whom the testimony is made) claims that they cancelled the testimony in the presence of one who is not a judge),they are not going to be called to take the oath and his evidence will not be accepted about the cancellation.This just opposite of a case in which he claims it occured in the presence of a judge and it was compensated. If the witnesses draw back their testimony before the decision,he will not pass any decision;if it is after that,the judge does not annul his decision.The two witnesses compensate what they consumed or cause to loose because of their testimony,if the claimant took in his posession what he claimed,be it a debt or a good. If one of the witnesses cancel his testimony,he compemsates half of it.The criterion is what is left,not what he annulled. If three man testify and one of them draws back,he is not to compensate.If another one draws back,both have to compensate the half. If a male and two women testify and one of the women cancells her testimony,she compensate one fourth.If two women draws back,both of them compensate the half. If a man and ten women testify and then eight of the women daraw back their testimony,they will not compensate any thing.If another one of the women draws back,then all nine are to compemsate one fourth.But if ten of them draw back,they compensate the half. If all of the witnesses in this case cancel their testimony,man has to compensate a sixth anf the women have to compensate five sixths. 308 / According to two imams half due to man and the other half to women. If two males and a woman testify and they all draw back their testimony,the compensation is the responsibility of the two men only. Any witness who testifies about a dowry fixed against her or him,if he cancells he has not to compensate except what exceeds the the average amount of the dowry (mahr mithl). Any one who testifies about a divorce after the actual matrimonial relation takes place,has not to compensate.He has to compensate half of the dowry in the case of divorce before the sexual relation. He also compensate what has been decreased from the value of the sold good in the sale transaction,the value of the slave in the manumission and the blood-money only in the retaliation (qisas). The secondary witnesses compensate if he draws back,not the original one, if the latter says "I did not make him witness on my testimony".But if he says "I lat him witness and I made a mistake",he is to pay according to Muhammad,he is not according to two imams. If the original and agent (secondary witness) draw back their testimony, only the agent has to compensate.According to Muhammad the party against whom the testimony is made,causes any one of the witnesses to compensate according to his wishes. If the agent says "the original witnesses lied" or "he made a mistake".it has no effect. If the clearer (muzakki) revokes his clearance,he has to compensate;the two imams have a dissident opinion. Any one who testifies for a chastity (ihsan) if he draws back his testimony,he has not to compensate. If a witness of an oath and a witness of a condition draw back their testimony,the witness of the oath compensates only.If the 309 / witness of the condition draws back alone,the scholars have conflicting views in regard to this issue. Any one who is discovered as lied in his testimony,he is to be defamed,but not to be pumnished descretionarily (ta`zir). According to two imams he is to let feel pain by beating and put into jail. Book on Agency (wakalah) Agency (wakalah) is one's letting any body represent him in transactions. The condition is that the principal has to have the transaction.And the agent has to have capacity to understand and also intend the contract. So it is valid to depute a free person who has reached the age of puberty or an auothorized minor who is free and reached to the age of puberty,or an authorized slave or a minor (sabi) who is competent to understand the transaction,or a slave (the last two being restricted in their transactions). Procuration is possible in in all areas where the principal has the right to transact,also in relinquishing any right or accpeting the payments,except in decisive crimes and retaliation if the principal is absent. Procuration is also valid in representing the party in the court in all kind of rights provided other conmtendind party accepts the bindingness of the procuration.The consent of the contendind party is not required if the principal is sick so that it is not possible for him to attend the court procedure or he is far away so much far that the rules of traveller is applicable or he is just at the verge of journey or she is a woman very much confined to her home so that she cannot go to the court. According to two imams the consent of the contendind party is not necessary. Any contractual right which is attributed by the agent to himself,like selling,renting or settling amicably by acknowledging,all of these belong to him,if he is not resticted 310 / (mahjur). So agent delivers the sold good, receives good,taakes the payment and he can be asked forr them,he may be appeled in case of claim, he may also sue for the defect of what he bought, he may give the defectful good back to the seller if he did not deliver it to the principal, bu with the permit of the principal in case of his deliverance it to him, he may also be sued for the defct of what he sold also in a preemption if it was in his hand alnd also in the preemption of the good he bought. The ownership is established for the principal from the outset of the transaction.So the hindered of the agent (deputy) gets not freed when he buys it. The rights of a transaction which he atributes to the principal go to him sich as the transactions of wedlock, khul`, amicably setlement of the debts against the denial or retaliation for the first degree murder charge, being mukatab or emanicipation against the property, donation,giving charity,leasing and depositing, pawning against the credit, accrediting,partnership and mudarabah. Also the deputy of a husband cannot be sued for the dowery and also the deputy of wife for her giving and also the deputy in khul' issue cannot be asked for the money fixed for it. The buyer has the right to hold back the payment from the principal.But he delivers it,that is valid.The deputy cannot ask him once more. But if the buyer has a credit against the principal, so it an automatic clearance takes place in that regard. The same rule if there was against the deputy any credit.Abu Yusuf has the opposite view. The deputy in this last case has to compensate it for the principal. But if the credit was against both of them, the clearance will take place for the debt of the principal,not for the debt od the representative. 311 / Chapter on Agency for Buying and Selling It is not allowed to depute to buy things which cover many types, like slave,cloth,vehicle or things which are counted as different types, like houses. But if he declares the price, then if he describes the cloth such from Herat (a city in Iran),that is allowed. And also if he qulifies the type of vehicle like horse, or mule or declares the price of the house and its suburb or qualifies the typeof the slave,like the full slave or gives its type as "Turkish",or he fixes the price by which the type of good is clarified or he generalizes it and says "buy for me whatever you see good". If the principal deputes him to buy "food (ta`am)",it means wheat (in grains) and wheat flour.It is said that "food" wheat in case of the dirkams (money) are much,but it means the type if the amount of the money is less.But it means the flour if it is in medium level. If the occasion of wedlock party it means in all cases just bread. To delegate some one in buying a specific thing by credit which he has against the principal is valid. But deputing in a non-specific goods,if the good perishes in the hand of the deputy,h3e has to compansate it; but if the principal reveived it,he has to bear the risk. The two imams said that in both cases the principal has to bear the risk and the principal has also to bear the risk if the deputy already received it. 312 / same dissent is there in case the principal instructs the deputy to deliver wht he owes or to depose it. If he delegates a slave to buy himself (slave) on behalf him from the master,if the deputy slave says "sell me to so and so person" and the master sells,then the slave belongs to the principal.If he does not say "so and so person",then hes is emancipated. If the slave delegates any one else to buy him from the patron,in this case if the deputy says to his patron "I am buying the slave for him",then he sells him,the slabe gets free on the expense of the patron. And its wala relation gpes to the patron. If he does not say ".. for him",then the slave belongs to the deputy. He has to has to pay the price. And whatever the slave gives as the money will go to the patron. If the agent (deputy) says to his perincipal who delegated him to buy a slave "I bought for a salave and he died" and the principal said that "you bought it for yourself",the word of the principal is to be taken,provided he did not pay the price,otherwise it will go to the deputy. A deputy has the right of asking the price from the principal even if he did not pay to the seller, he also can hold back the sold good for the payment. But if the good perishes before taking it in his posession,then the risk goes to the delegator and its payment will not be relinquished.But if it happens after taking it in the posession.then it is relinquished. According to Abu YTusuf it is like the collateral. A deputy who is delegated to buy a specific thing has no 313 / authority in buying it for himself. If he buys any thing opposite of what has been fixed from the price or as the type of money,then that transaction gets effective for the deputy. The same rule will work if the deputy instructs another person to buy some thing in his absence.But if it happens in his presence,the good belongs to the principal. In case of non-specified goods,it goes to the deputy,except if he attaches the contract into t5he property of the principal or leaves it undefined,but he intends it for the principal. In the transactions of salam and exchange of money the departure of the deputy is valid,not the departure of the delegator. If he says "sell me4 this for Zaid",then it is sold,but the deputy denies that it was for Zaid, who delegated him,in this case Zaid has the right of receiving it if he does not accept his denial; but if he approves it,he is not going to take it forcefully. But if the buyer delivers him,that is valid. Any one who was deputed in buying a ritl (a unit of measure) of meat for a dirham,and he bought two ritls for a dirham, while it was sold a dirham a ritl,the delegator has to get a ritl for half of a dirham.But the two imams are of the opinion that he is bound to get two ritls against one dirham. If he is delegated to buy two specific slaves and he bought one of them,that is valid. Same rule if he is de;efated in buying then for a thousand and therir values were equal and he buys one of them against half of the total price or less than that. If he buys with the the amount more than that,that is not valid.The two imams said it is also valid, if it is in the area where one can cheat and an amount by which the other slave can be bought is already spared. If he buys the other slave against the remaing of the money 314 / before the suit,that isw unanimously acceptable. If an agent who was deputed in buying a non-specified slave against "a thousand by which I bought" and the pricipal said "with half of it", if he already paid the thousand to the agent,he is to be accepted, if it equals to the thousand. If he did not pay yet,then if it equals to half of it,the principal is to be taken true; and if it equals to the thousand,they have to swear. And the slave goes to the agent. The same situation will work if they take the oath in a specific good of which the price has not been fixed,then he bought and both dissented about its value. According to the most clear view the approval of the seller has no effect in this regard. Chapter An agent who is deputed to sell and buy may not make a contract with an individual for who his testimony is refutable.The two imams say that the contract is permissible for the goods of average standard value (mithl al-qiymah),except in the slave and mukatab. Any one who is deputed for the selling,may sell against less or more money and also for the good.The two imams say that it is not permissible except with the average standard value and with cash. He may sell with instalments. He may too sell half of what he was deputed to sell and to receive for the payment backed with sureyship or collateral. 315 / He is not going to compensate if what the garantor has perishes or the collateral expires while it is in his hand. If he donates the amount to the buyer or he acquits him from paying any thing or discounts from it some amount,all are effective.He has to compensate it.According to Abu Yusuf it is not permissible. The same differences of views are there in case he postpones or accepts it as transfer of the debt/credit (hawalah). If he cancils it,that also valid.The payment becomes undue on the part of the buyer and it becomes due from the point of the deputy.According to Abu Yusuf the money will not be undue on the part of the buyer. Any one who is deputed to buy,he is allowed to buy with the average standard value (mithl al-qiymah) and also with more than that,provided it is at level where one can be cheated. Cheating is a level in which an appraisal can be fixed in terms of goods as ten and half,in live stocks eleven and in the real estate twelve.It is not valid to buy against the goods in which cheating cannot take place. If he was deputed to sel a slave and her sold half of it,that is valid.The two imams say it is not valid,except if he sells the remaning part before the suit.This is better view. If he was deputed to buy a slave and then he bought half of it,it does not bind the the principal,except if he buys the remaning part before the suit.This is what unanimously accepted. If the sold good has been returned to the deputy based on the verdict passed by the judge for a defect,he returns it to the principal,in any case.This is for the things which can no more take place any thing like that. The same rule will work in the thinks can take place changes like that with a condition it is based on an evidence,or rescension. If it happens because of confession,that will be just opposite.And that will bind the deputy. 316 / If he sells it in instalments and the principal says that "I instructed you to it with cash", and the deputy says "no,perhaps,you left it unspecified",the principal is to be accepted.And in a mudarabah partnership,mudrarab (one who puts his effort as capital in the partnership) is to be followed. Eac one of the two deputies is not allowed to transact alone in the area they were deputed,except in suits,returning back the deposits,paing the debt,divorec and emancipations in which both of them have no remuneration. An agent (deputy) cannot delegate another person,except with the permit of his principal or his word such as "you act according with your opinion". If he gives permission and swo the deputy delegates a third [erson,the second deputy becomes agent of the first ptincipal,not for second one. Therefore,second deputy cannoot be automatically released from the job by deposing the first agent,also by his death. But both of them get deposed by the death of the principal. If the second was delegated without permission,then his transactions in the presence of the authorized deputy is valid. Also if he transacts in his absence,but later he approves it or he himself fixed the amount to be [aid. Neither slave nor mukatab may enter into transactions of selling or buying in the property of their children.They also cannoot join them in marriage. A disbeliever has the same status in regard with his muslim child. Chapter on Representing in Suits and Reception A person who is deputed with suing has the right of receiving the good. Zufar has an opposing view. And fatwa is on his opinion in our time. An agent who is deputed in clearing debts mutually has the same status. Any one who is delegated in receiving the debt has the right of going/be4ing taken to court before he receives it.The two imams have a dissenting opinion. 317 / Any one who is deputed in taking the preemption can be a party before the reception as unanimously admitted. The ones who are deputed in taking back the gifts,or in devision,or in returning the good for its defect and one who is delegated to buy some thing after the materializing it, these all have the procedural rights and responsibilities. A person who is deputed to receive a good has no right of being sued.If a person who holds a slave actually proves against athe deputy who was delegaded to receive the slave that his delegator sold the slave to him,in that case the dominion of the deputy is to be finished.The sale does not get established. Repeating the proof is needed when the principal comes to the scene. In the same way the dominion of the deputy ends by the transfer of a wife or a slave from one place to another. Neither divorce nor the manumission will occur if bothe of the latter persons bring evidences about them without the principal being present. An aknowledgment made by a deputy who is deputed for being sued against his delegator in the court,not out side the court except in the view of Abu Yusuf, is valid.But if the defendant can proove that the deputy aknowledged in the court,then his agancy ends and the property has not to be given to him. This is like a father or a an executioner of a will if they aknowledge in the court,their aknowledgment are not valid and the property is not going to be given to them. The creditor cannot validly delegated his garantor in receiving what the debtor owes to him. Any one who admits the claim of a person who claims the delegation in regard the receiving the debt,he is to be instructed to deliver it to him, provided the creditor accepts it too. Otherwise the debtor is to be instructed to deliver to the claimant in this case too and then he may 318 / appeal to the deputy,if it has not vanished in his hand.But if it perished in his hand,he can not return to the deputy, except if he guaranted him while he gave the credit to the debtor or he gave it to debtor without approving his being deputy. Aby one who approves the claimant of the agency in regard with receivinf the deposits,is not going to be instructed to give him.The same situation if he approves him in his claim of buying it from the owner.If he admits the claim that the owner passed away and left it as inheritance for him,then he is to be instructed to give it to him. If the debtor claims against the deputy who is delegated with the receipt of the debt,that the creditor already received the amount due to him and he had no evidence,he is to be instructed to pay it to the deputy. and he will mot ask him to swear that he does not lnow that his delegator received the amount,on the contrary hhe has to follow the creditor and the dentor let the principal swear that he did not receive the amount that was due to him. If the buyer claims against the deputy who was delegated to return the good for its defect that the principal has accepted the defect,then he is not to be instructed to pay the price before the swear of the buyer. Any one who was given ten (dirhams) to spend for teh family of the giver,but he himself spent ten from his own budget,the ten which were given to him becomes his money. Chapter on Firing the Deputy The principal may fire the agent,except if the right of a third person is related to as is the case in an issue where thedeputy who is delagetd to be sued in the court,when he is asked by the other party to relinquish the debt. His being fired is to be based on his knowledge.His transaction before his knowledge of being fired is effective. The procuration becomes void with the death of the principal and his getting insane fully. The limit for this insanity is one 319 / month according to Abu Yusuf and one year according to Imam Muhammad. The last view is one which is preferred. Also it becomes void with the principal's joining to the country of war (dar al-harb),himself beind apostate.The two imams oppose to this idea. Also the procuration becomes invalidated by becoming disable if he is mukatab,or being deprived from his dispositions,if he is an authorized slave,and with the seperation of the two partners and also with the dispostion excercised by the principal himself in the area where the deouty was delegated in. The knowledge of the deputy is not needed in the case of death and thereafter. The Book of Suit It (da`wa) is the plaintif's informing that he has a right on some one else. Plaintiff (mudda`i) is one who cannot be forced to litigate, defendant (muda`a `alaih) is one who can be forced to litigation. No suit can be filed without mentioning any thing of which both of the quality and the quantity are known. If it is a credit he has to state that he he is demanding it, if it is a thing moveable,he states that that it is in the dominion of the defendant with having no right and he wants it back.And it is necessary to bring it into court,if possible, in order to to be pointed out while court is in process.And during the testimony and taking oath too. If it was impossible, he has to state its value. In real estate he does not need to state "without right". And the doninion of neither plaintiff nor defendant can be established by their agreement,it may get established by the evidence or by the knowledge of the judge according the correct view. It is mandatory to mention in real estate procedure the city,the zone,borders sourrounding from four directions in regard to suit and testimony about the estate,the names of the owners of fuor adjacenet estates,their identities up to their grandfathers,but if the person is well known,just mentioning his name may be enough. If he mentions the adjacent estates and leaves the 320 / fourth that is also valid. If he mentions it,but he makesa mistake, it will not be valid. If the claim is valid,then the judge asks the defendant about that, if he accepts,he decides against him,if he denies he asks the plaintiff the evidence,if he he brings his evidence that is fine, otherwise the judge makes the defendant swear if the plaintiff wishes it. If he swears,then the suit may end unless there comes out an evidence or he rescinds his oath or keeps silent without any impairment.Then he gives his verdict about his rescension,that becomes effective. To let the defendant swear three times,then to decide is the most cautious way. The swear may in no way return to the plaintiff. No decision can be based on one witness and and oath. The defendant can by no means be sworn in marriage, revokable divorce, and in revoking the suspended marital relation, making the status of umm walad to his she-slave, slavery,kinship,wala' (relation between the old master and emancipated slave).But according to two imams they may be sworn on all of them. This is the fatwa base. No swear in decisive crimes (hadd) and li`an (a way of procedure in which the couples mutually curse each other). A thief can be sworn in,if he cancels his oath,then he compensate it,his hand is not to be choped. A husband can be sworn in the divorce,if she alleges it before the actual privacy as unanimously accepted. If he revokes, he has to compensate half of the dowry. And also in marriage if she claims her dowry and in blod relation if he claims any right like inharitance, dependancy support and others,and in retaliation. If he revokes it in the murder,he is to be imprisoned until he cofesses it or swears on it.In all of 321 / the other cases retaliation will take place. According to two imams a blood-money is to be paid in all of them. If the plaintiff states that he had a n evidence in the city and asks for swearing of the defendant,he is no going to be sworn in,but he himself guarantee him for three days. If her abstains, then the plaintiff follows the other party and goes with him whereever he goes.If he is a stranger, he is to be guaranteed or followed upto the court. Swearing must be done by Allah,not by divorce or the emancipation. It is said that if the defendant insists,both of them are also valid in our days. Swearin may be qualfied with extra qualifications,if the judge wishes.One must avoid repeating neither in terms of time nor place. A jew may be sworn in by Allah who revealed the Torah to Moses (pbuh),a christian by Allah who revealed the Gospel to Jesus (pbuh),a fire-worshipper by Allah who has created the fire and an idol-worshipper by Allah.They are not to be sworn by their temples. The defendant is to be sworn in what has been produced.In the sale and marriage swear must be by Allah that teheis no sale between you and him and no marriaage established between you and him.In divorce the swear has to be as "she is not divorced (bain) from you now".In usurpation "it is not necessary for you to return it", in the depository "what yo have in yourhand and this person has a claim for does not belong to him,he has nothing from it and he has no right stemming from any thing before you". He is not to be sworn in the cause,like "By Allah,I did not sell it".Abu Yusuf has a dissident view. 322 / If there is a necessity of avoiding to look at the product for the plaintiff,he is to be sworn on the cause,as it is unanimously accepted, like in preemption suit because of neighbourhood anmd the dependency support for the divorced wife,both of them being betond the seight of the defendant. Also the same rule will be applied in the cause which is not removable,like a muslim slave who claims the manumission,an infidel and she-slave are exceptions. Any one who inherits any thing and another person claims it,he is to be sworn on the knowledge.If he sold it or donated it,then swear on denial (batat) of that transaction is to be directed. If the denier gives some amount as ransom for his swear or he amicably settles the issue,that is valid and he has no longer to be sworn in after that. Chapter on reciprocal swear If both of the parties disagree on the amount of the cost or the sold material or in both of them,it is to be decided for the one who proves it,if both of them bring evidences,the decision will be in favour of the one who proves the increase.If both of them are unable to prove,then they are to be told either one of you accepts the claim of the other party,then that will be fine,or we cancel the sale.If no one accepts the other party's claim,then they reciprocally swear.First the buyer has to swear. But in exchanmge,any one can beginn. If any one of them rescinds his swear,then the claim of other partyy becomes binding.If both of the swear,then the judge cancels the sale transaction based on the wish of other party. No reciprocal swear will be done if they disagree in the span of time,or condition of option or receiving some part of the price.The denier has to swear but not after the perish of the 323 / sold good. Also the buyer has to be sworn,according to Muhammad both of them have to swear.The sale is to be cancelled and the value becomes binding. The differences of views are the same if the returning of the sold property is impossible whereas it is there,but not after some part of it perishes,except in a case when the seller gives his consent to put up with the share which perished. According to two imams they reciprocally swear and the remaining part will be returned back. The word of the buyer is to be taken in regard to the perished part according to Abu Yusuf. According to Muhammad its value becomes due. The values of both of them are to be taken in devision at the day of reception. If both of them disagree in the value of the perished part at the day of reception,then the word of the seller is to be taken. If both of them produce evidences,then the evidence of the seller has the priority. If both of them disagree about the amount of the price after the callation of the sale,they reciprocally swear and the sale turns into previous form if the seller does not receive the sold property.But if he receives it,then there is no reciprocal swear.Imam Muhammad has an opposite opinion. If they disagree on thew amount of the capital after the cancellation of the salam transaction,then the word of buyer the property is to be taken.And the salam is not to be returned. If they disagree in the amount of the wage and benefits in both of them before the reception of the benefits,both of them reciprocally swear. and each one gives what he has received from other part.First the employer swears,if they dfisagree on the wage,and the empolee swears first,if disagreement is in the benefit. If any one returns from his swear,then he becomes bound to the claim other party.Any one brings evidence,his evidence will be accepted.If both of them prove,then the argument of employerin the benefits and the arguments of the employee in the 324 / wage are acceptable.And after the receivining the benefits,they are not to swear and the word of the employer is to be taken.And after the receiving part of it,they reciprocally swear and the transaction is to be cancelled for the rest of the amount and the word of the employer is to be taken in what has passed. If the parties disagree inb the amount of the mukatab cost,they are not to swear reciprocally and the word goes to the slave.The two imams are of the opinion that they swear reciprocally and the transaction gets cancelled. If the couple disagree about the things in the home,her word is to be taken in regard to what it is good for her, and his word is to be taken in regard to what it is good for him or good for both of them. In case of death of both of them,the word of the one who was possible to be alive, is to be taken. According to Abu Yusuf the same ruling works to what exceeds her marriage average belongings (jahaz mithliha) and or her marriage average belongings or her heirs,but according to Muhammad that goes to the man and his inheritants. If one of them is slave,all go to one who is free in case of they are alive, it goes to the one who is alive,in case of death. The two imams say that an outhorized slave and mukatab are like a free individual. Chapter A person who holds a thin in his dominion said "this is the thing so and so person who is absent deposited in me,or lent to me ,or rented me,or gave me as collateral,or usurped it from him" and proves it,then the plaintiff's claim ends in that issue. Abu Yusuf says that it does not end if the person is known with tricks. This view is to be followed. If the witnesses say that some one whom we don't know deposited in him,then it does not end.this is just opposite of what if they say "we know him by 325 / face,but not by name and blood relation". In this last case the litigation ends according to Imam Abu Hanifah,but Imam Muhammad has an opposing view. If he says "I bought from him",it does not end. The same ruling will be applied if the plaintiff says "you stole it from me,or usurped it from me",even the one who holds it proves that a person who is absent deposited it. same thing if he says "it was stolen from mne".This is against the view of Muhammad. If the plaintiff states "I bought it from Zaid" and the one who holds it says "he lend it to me",the litigation ends without any evidence,except in case where a plaintiff proves that Zaid deputed him to receive". Chapter on the claims of two persons The evidence of a person who has a thing in his dominion is not valid in unlimited ownership (mulk mutlaq).The evidence of a third person is preferred to him. If two persons who are not owners prove on what a third person has in his hand,that thing will be decided for both of them. If they bring evcidences on a marriage of a woman,their evidenced lose the effectiveness. The wife is the wife of whom she aproves. If the two persons give dates for marriage, the one who gives earlier date is effective. If the woman accepts one of the the two before the litigation,then she goes to him.And if the other party proves otherway after that,the decision will be passed in favour of him. If one of them proved and the decision passed for him,then the other party proved,his evidence will not be accepted,except if he proves that he was earlier. Also the evidence of a third person will not be taken into consideration in regard to an acxtually holder of a marriage relation which is obvious,except if he proves that he was earlier. If thetwo individuals prove on buying a thing from another person,each one of them will get half against the half price,or he may leave it. Or if one of them leaves after it was decided for both of them,the other party does not take the whole. If one 326 / of them has a dominion on it or a date,then he is preferred.If both of them give dates,earlier one is preferred.If one of them has doninion on it and the other is earlier,then the one who has dominion is preferred. Buying is better than donation and giving it as charity together with actual reception.Donation and giving it as charity are equal in the area where there is no pssiblility of devision.Buying and dowry are also like that according to Abu Yusuf.And imam Muhammad said that buying is preferred and the husband has to pay the value of it. And collateral together with actual reception is better than donation with reception.If donation was together with a counter donation,then it is better. If the two individuals prove on an ownership with ful date or on a buying from some one who was not having dominion on it,then the one who predes is preferred. If one of them proves that he bought it from Zaid and the other from Bakr,but the dates corresponde to each other,then they are equal. The same ruling if one of them only gives the date. If a third person proves that he has bought it from another person and another individual proves that he got it donated, the reception was from another person,another individual proves that he got it inherited from his father and another person got it given as charity being received from a fourth person,the thing will be decided for each one of them as one fourth. If a person proves that he has an ownership dated,and a holder of dominion on an ownership which is older than that,the last one is to be preferred. Imam Muhammad opposes to it according to one report. same differences of views are there if both of them have dominions on it. If a third person and one who has dominion prove 327 / on the absolute ownership and one of them only givesdate, then the one who is third oerson is to be preferred.According to Abu Yusuf one who produces the date is preferred. If claimed thing is in the hands of both of them, or in the hanmd of a third person,and the problem is the same,the two are equal in theis position.According to Abu Yusuf,one who gives the date is better than the other.According to Muhammad one whose statement is unrestricted is prefferred to the others.If a third person and the one who has dominion bring evidences on the product,the one who has dominion is preferred. The same way if each one of them brings proof on the reception of the ownership from the other and the product from him. If one of them proves an absolute ownership and other on the product,the latter is better than other. Also the same ruling,if bothofthem were third persons. If the judge decides that the product will go to the holder of the dominion,then a third person proves that it was for him,he decides for the latter,except in the case if the former repeats his proof. This is exactly like if the one against who the verdict was passed regardin the absolute ownership,proves that the oroduct was his,the evidence is acceptable and the verdict can be turned down. Any factor which does not repeat,is like the products, for example weaving the textile which can not be woven but once and milking and cheesing,felt,making cloth from the soft type of a goat hair (mir`izz) and shearing the wool. Whatever gets repeated is like the absolute ownership,for example 328 / textile of silk,building,plainting,cultivating wheat and grains. Whatever becomes doubtful,they may refer to the expert witnesses.If they too can not solve,then it may be considered as absolute (mutlaq). If a third person brings evidences on the absolute ownership and the one who has dominion proves that he bought it from that third person, the latter is better. If both of them prove that each one has bought from other,no one has any date,both of the evidenced get ineffective. And the thing is to be left with the one who has dominion on it. According to imam Muhammad it will be decided for the third person. If both of them give date in a real estate without mentioning the the dominion and the date of the one of them is earlier,then it is to be decided for the one who has dominion. According to Muhammad it goes to the other party. If both of them proved the dominion,then it is to be decided,unanimously,for the one who has dominion. If the date of the holder of dominion is earlier,then it is to be decided for the other party in both cases. No effect will bring the bigness of the number of witnesses. If one of the third persons alleges the ownership of half a house and the other whole of it,then one fourth goes to the first.According to two imams one third goes to the first and the remaining part goes to the other party. If it is in hands of both of them,the whole of it will go to theclaimant of the whole,half of it by the court decision and the rest automatically. If the two persons bring evidences for the product of a live stock, and both of them give dates,it will deceided for one whose date corresponds to the age of animal.If the problem still remains unsolved,it will go to both of them,if both of the dates do not agree and both do not correspond to the age,then both of the evidences get ineffective.If one of the indidividuals proves 329 / that it was usurped and the other it was deposited,then both are equal. Chapter on Conflicts of dominions The one who wears a cloth is stronger than the one who holds the sleeve.The rider is better than the one who leads it by the bridle,and one who is sitting on the sadle is better than who is riding athe back of the sadler as second rider.The posessor of a load is better than one who just hangs his jug on it. The riders without saddles or all being on sadles are equal. The following people too are equal: The one who sitts on a carpet and yhe one who stick to it,one who has a cloth and other end is in the hand of another person. A wall belongs to one who who its foundation belongs, or it is attached to his building,it does not belong to one who has some woods at the top of the wall on which he puts his orchards.Both of the neighbours are equal in that regard. If each one of the neighbours has three woods on the wall,then it is for both of them.No preference can be made for the reason based on who has more wood. If one has three and the other less than that,it will go to one who has three and to the other belongs a place of one wood. If one has the foundation and the other the connections,it belongs to the one who owns connections.The other one has the right of putting things on it.It is said that it belongs to the owner of the foundation ( columns). Who owns an apartment from a block is equal to the owners of other apartments from the same block with regard to the owner of block. If two of them claim a land,each one saying that it is in his hand and they bring the evidences,it is to be decided for both of them. If one of them only brings evidence or lays the bricks,or builds or excavates,then it is to be decided for his dominion. 330 / If there is a minor who express himself and says "I am free",his word is to be taken.If he says "I am a slave of such person",then he is the slave of one whose dominion is on him. Also the minor who is unable to express himself.If he claims freedom when he grows up,he is not going to be accepted without any evidence. Chapter on suit ob blood relation A she slave who was sold gave birth in a period less than six months from the transaction,then the seller claimed that it is his son,in that case she becomes umm walad.And the sale is to be cancelled and the money is to be returned back. This is so, if the buyer claims it while the buyer is claimung or after its claim. Also the same ruling will work if each one of them claims that it is his child after the death of the mother or her emancipation. He is to give back his share from the cost in the emancipation and whole of the price in the case of death. The two imams say that they have to pay the cost of child in both of them. If they claim after the death of child or his emancipation,then the claim of the seller is to be rejected. If she gives birth in a period more than six months and less than two years,if the buyer, in this case, approves it, then the ruling will be like the first one,otherwise it will not be established. If the birth happens in a period more than two years,then the claim is not valid. If the buyer approves him,his blood relation gets established and the birth is to be considered from the marriage. The sale will not be rejected and the emancipation will not be done. If he buys a slave who was born in his dominion,then he claims it after the sale of the buyer,then the claim of the seller is valid,and the sale of the buyer is to be camcelled. 331 / Also the same system wiil work if the buyer makes mukatab relation with him,or his mother or gives as collateral or rents him or his mother or joins her in a marriage,then the claim came out,it is valid and all these transactions get void. If he sells one of the twins who wre born in his dominion,then the buyer emancipates him,then the seller claims the blod relation for the other child,then the relation of both of them will be established from him and emancipation of the buyer will get void. If,any one who has a child in his dominion, sdays that he is the son of Zaid,then he says "he is my son",the child will not be considered as his child,even if Zaid denies his being his son. According to two imams it is valid,if he rejects it. If the child is in hand of a muslim and a zimmi,then the muslim claims that he is slave,and the non-muslim claims that he is his son,then he is considered as free and son of the non-beliver. If the child is with a couple,the husband thinks that he is his son from another wife,and she is tinkink that he is her son from previous husband,then the son is the child of both of them (couples). If he makes her bought she-slave umm walad,then she was claimed by a third person,the child in this case becomes free.Ftahre has to pay his value at the day of claim.If the child dies,then his father has nothing to pay and his assets will be inherited by the father. If the father murders him,then he has to pay his value.The same ruling will work,if a third person kills him.The father in this case takes the blood money and then returns to the buyer with his value and the buyer returns to the seller with the price,not the blood-money, paid for the mother (she-slave). The Book of Acknowledgement It (iqrar) is one's aknowledging that there is a right on him for third person.That will not work except for the known thjings. 332 / Its legal effect is the decleration and outcoming of the acknowledged right,but its construcion.So acknowlewdgement of the alcohol for a muslim is valid,but not the divorce or emancipation while he is under the force. If a fre islamically eligible person acknowledges any known or unknown right,like a thing or a right,that is valid and he has to declare the unknown as what its value is. His word is to be taken effective along with his oath,in case the one who is beneficiary claims more than that.But in a property problem,the acknowledger is not to be approved in the the amounts less than a dirham also if he says "a big amount of property (mal `azim)",he is not going to be approved in an amount less the silver and other type of fixed minimum quantity (nisab), less than twentyfive camels,less than five wasaq of wheat and less than zakah nisab from other zakatable items. If the expression of "many properties (amwal `izam)" is used, he is not going to be approved in less than three nisabs.If he says "dirhams (darahim),not less thasn three dirhams,if he says "many dirhams (darahim kathirah)" not less than ten is accepted. According to two imams "a nisab " is acceptable. If he says a dirham (dirhaman)" one dirham is the limit. If he says "so and so kaza and kaza)", eleven dirham is the limit. If he says "three (thalathan)",then it is the same. If he says "and so and so (wa kaza wa kaza)",twenty one dirham is the limit. If he says three times "and so",one hundred is to be added.If he says it four times,then a thousand is to be added. All measurables and weighables are in the same ruling. If he says "a partnership in a slave (shirkin fi `abdin)",that means half according to Abu Yusuf.According to Muhammad he is to be ordered to clarify. If some one uses the expression of "there is upon me (`alayya)" or "it is my duty (qibali)" means acknowledgement of a debt he owes to that specific person. If he connects immediately to one of the previous expression "it is a trust (huwa wadi`ah)",he is 333 / to be accepted. But if he says it after somew time, then he is not to be acceptable. If he uses the expressions of "in me (`indi)" or "with me (ma`i)" or "in my home (fi bayti)" or in my cabin (sunduqi" and "in my purse (kisi)" all are acknowledgments of a trust (amanah, deposit ;not debt). If he says to the debtor od one thousand "weigh it" or "take it into exchanger" or "postpone it" or " I had already paid it", or "you had exempted me from it" or you donated it to me" or "you gave it me as charity" or "Ihad transfered it to you" ,then that means he accepts it. But if he says it without "pronoun (it)",then it does not mean acknowledgement. If he acknowledges a postponed debt and the adresse says "it due by now",that is bound immediately. And the beneficiary has to swear about the period of postponment. If he says "I owe hundred and dirham", all are counted as dirham. All measurables and weighables are at the same level. If he says "one hundred and cloth" or "one hundred and two clothes", he has to clarify the meaning of "one hundred". If he says "one hundred and three clothes",all means three clotrhes. If he acknowledges the dates in the matt cup",both are due to be given. If he says "a ring (khatam)",ring and its top are due. If he acknowledges "a sword (sayf)",it contains its spear and handle and strip. If he uses the word wedlock home (hajlah),then all clothes and furniture are included. If he says a livestock in the stable,that means only a livestock.If he says "a cloth in handkerchif",both of them are due. The same law if he says "a cloth in the cloth".If he says "a cloth in ten clothes",then only one cloth is due according to Abu Yusuf and eleven clothes 334 / according to Muhammad.If he says "upon me five in five (khamsah fi khamsah)",then only five are due. If he means the multiplication together with "in (fi)" meaning "together (ma`a)", then ten are due. If he says "upon me from one dirham to ten" or "between one dirham to ten", then he has to pay nine.According to two imams,ten is due. If he syas "from my home between this and that wall",the adresse may get what is between walls only. It is valid to acknowledge the feotus,and it is to be interpreted as the will from a third person. It is also valid to appoing the feotus as beneficiary by the acknowledgment,provided he gives anappropriate reason,like the inheritance or will.If he is born alive in less than half a year from the time of the acknowledgment,then the baby will get what he was was acknowledfged for. If twins are born,then it will go to both of them.If a still baby is born,then the thing will be for the one who leaves the estate and who acknowledges it. If he interprets it as a sale or a loan or leaves it obscured,then the acknowledgment is void. If he acknowledges it with a condition of an option of giving it back,then he has to ghive the property and the condition gets void. Chapter of the exception and what is in its meaning It is valid to make exceptions of some part of what he acknowlledges,if the exception follows immediately the sentence,and he has to pay the rest.To make exception of the whole is invalid. If he acknowledges two things and excludes one of them or ane and some part of the rest,the exception is void,the two imams are of opposite opinion. If he excludes some part of one of them or some 335 / parts from each one of them,then it is valid unanimously. If he makes an exception of the things which are measurable,or weifghable or quantitative,which are almost homogenious with dirhams,then it is valid if it is done with the value.Imam Muhammad has an opposing opinion. If he excludes a ship or a cloth or a home from it,then that becomes invalid according to unanimously accepted view. Any one who adds to his acknowledgement "with the will of Allah (insha' Allah)",his acknowledment becomes void. same ruling if he suspends it to the will of of some one whose will cannot be known, like the angels, demons (jinn). If he acknowledges a home and excludes its building,both of them will go to the beneficiary. If he says "the building is mine and the plot is his",it will be as he says. The jewel of a ring and palms in a garden are like the building. If he says "I owe to him one thousand from the price of a slave who was not delivered to me yet", if he defines the slave,then the beneficiary is to be said "deliver him and get the money,if you wish". If he does not defines,then he has to pay a thousand and his word "who was not delivered to me yet",becomes void. If he says "from the price of alcohol or pig",he is not to be approved.According to two imams if he follows it immediately,he will be accepted. If he says "from the price of material" or "he rented it to me,while it was fake and not acceptable in the market",he has to pay the good money.The two imams say that he has to give with what he says if he connects it to the sentence. If he says "from usurpation" or " from the trust" while they are fprged and unacceptable in the market,he is to be accepted. If he says "fake (sutuqah)" or "lead",if he connects it to the sentence,his word is to be taken,otherwise not. 336 / If he says "I usurped it" and brings a defective one,he is to be taken as truth. If he says "I owe a thousand,from which one hundredis to be excluded", his word is truth.Otherwise,a thousand is necessary. If he says "i received from you one thousand as trust",then it perished and the beneficiary of the acknowledgment says "you took it usurping",then he has to compensate it. If he says "you gave me" instead of "I took from you",he will not compensate. If he says "I usurped this thing from Zaid,not from `Amr",then it is for Zaid and he has to pay the value to `Amr. If he says "this was for me a trust with you,and took it" and the other says "it is mine",it is to be given to him. If he says "I rented my horse or my cloth,this one,to so ans so person,he rode on it or wore it and then he returned it to me", or "I lended him or let him live in my home,then he gave it back to me",his word is to be taken as truth. According to two imams the word of the one from whome it was taken is valid. If he says he "he sew my cloth,this one, for this much,then I took it from him" and the other side claims same cloth. So the differences of views are based on this according the correct opinion. If he says "I took from such person one thousand which he owed to me" or "I had lended one thousand and then I took it back from him", and the person denies it,the word will be for denier. If he says "such person cultivated this land" or "built this building" or "planted this orch,I requested his help" and the other party claims same thing,then the word of the acknowledger is to be accepted. 337 / Chapter on Acknowledgment of A Patient The debt of a healthy period and what he owes in his sickness period coming out from a known reason are equal and both of them are preferred to what he acknowledges while he is ill.And all of them come before the the inheritance. It is not valid if he chooses one of the creditors to be paid for.His acknowledment to the heir is not valid too,except in the case the rest of the heirs approves him. If he acknowledges for a stranger,that is valid, vene if he mentions all of his wealth. If he acknowledges for a stranger and then his son too acknowledges for him,the sons blood relation gets established and his acknowledgment becomes void. If he acknowledges for a foreign woman,then he marries her,his acknowledgment does get void. If he makes w will and appoints a foreign lady as beneficiary,then he marries her,the will becomes invalid.If he donates to her,then marries her,then there is no way of returning back. If he acknowledges for a boy whose blood relation is unknown,in a way that a boy like that cannot be begotten to a such person,that he is his son, and the boy approves him,his blood relation to the accknowledger gets established,even if he was patient and inherits him along with orher heirs. One's acknowledgment for his parents,child,wife and mawla (master who emancipated him from slavery).And their approval are required. The acknowledgment of woman is also the same,but it is required in her acknowledgment for the child the approval of the husband or the testimony of of a midwife. Their approval after the death of the acknowledger are valid,except the approval of husband after the death of the 338 / wife.According to two imams that is too effective. If he acknowl;edges with a reason other than birth,like a brother or uncle,that cannot get established. He will inherit him if he has no known heir,even if he is far relative. Aony one whose father died and he acknowledges fro a brother,he will share the inheritance,but his blood relation will not get established. If their father who is dead has a credit tobe paid by a person,and one of the sons acknowledges that his father received half of it,the other half will gfo to the other son and the acknowledger will get nothing. The Book of Amicable Solution Amicable setttlement (sulh) isd a contract which lifts up the conflict. It is allowed to be made by the acknowledgment ,keeping silent and deniying. The first one is like a sale,if it is made property against property.Here the preemption,returning the stuff bought because of defect,an option of returning after seeing the bought material and the condition will work in it. The ignorance of the price,but the ignorance of the benefits to be made from it,will invalidate it. The power to deliver the money is required. If some of the benefits or all of them have been claimed,he may be asked to pay whole or part of the money. If some of the money or whole of of it was claimed,the whole of the benefits or some of them are to be appealde for. If the amicable solution is made for a property aganst an interest,that will be considered as renting out. And it required in this giving the time. It gets void,if one of the parties in amicable settlement dies. The other two types of amicable settlements are counterpayment regarding the claimant and expiation of an oath and cutting off the conflict in regard to other party. 339 / There is no preemption in a home which was the subject of an amicably settlment in one of these two types. Preemption is obligated in a house for which the amicably settlement is made. Any thing which are claimed from the other party as a whole or partly,the claimant will give back the same ratio from the money. He returns with litigation. Whatever is taken away from the money.partly or wholly,the claimant may return to his claim according the ratio. And the perishment of the money before the deliverance is like its being taken away in both of the types of amicable settlement. If he makes an amicable settlement on a part of a house he claims,that is not calid. Away of coming out from the problem,he increases the money a little and acquits from the claiming the rest. Chapter Amaicably settlement is valid from anunknown.But it is not permitted other than upon waht is known. It is permitted from the claim of property,benefit,murder and what is in lesser degree than that,intenteionally or unintentionally done,and from the claim of slavery. This becomes emancipation against the property and there will be no wala relation between them. Also a husband's claim marriage to a woman can be the subject of the amicably settlement,and it becomes khul'. And she becomes forbidden to him from the point of Fatwa,if he invalidates it. But if he settles it aganst a poperty in order to let her acknowledge the marriage,that is allowed.It is not valid,if the wife claims it.It is said that that is too valid. Amicable settlement is not permitted from the claim of decisive crime (hadd). If a slave who is authorised to do business on behalf of his master,murders a person intentionally and then he enter in an amicably settlement for himself,that is not valid 340 / contrary to the amicably settlement for the self of a slave,who kills a man intentionally. If he enters in an amicably settlement in a usurped thing,of which the more than its value,was spoiled,that is permitted. The two imams say that the exceeding part of it is void,if it is some thing in which no cheating works. If it is made for a stuff,then that is by all means valid,as unanimously accepted. If a well-to-do person frees a commonly shared slave and makes a peaceful settlement from the rest against an amount more than half of its value,then the exceeding part is void. If it is made aganst the stuff,then then that is valid. It is permitted to have a peaceful settlement against a property which can be given to the rejecting defendant in order to let him acknowledge for him. An amount given to peaceful settlement for the intentional murder or for some of the debt which is claimed by the plaintiff is binding the delegator (principal),not the deputy,except if he guarantees it. The amount paid for the transaction which is like the sale,is binding the deputy. If an unathorized agent enters into a peaceful setlement and guarantees the amount or he annexes to his property or points to a good or a money without any annexation or uses a sentence undefined and delivers it,that is valid,he becomes donator.But if he mentions it ubdefined and does not deliver the amount,then it is to be suspended.If the defendant approves it,that is valid and the substiyuting amount becomes binding,otherwise it is void. Chapter on the peaceful settlement of the debt Any peaceful settlement in regard to what has been claimed by a contract of credit on a part of the same type is considered taking some of his right and relinquishing the rest of it.That is not exchange of goods. If he enters into a peaceful settlement regarding a thousand which is due immediately against a hundred which is also immediately due or a thousand which is posponed,that is valid. 341 / Also if he makes peaceful settlement for thousand good money against one fake hundred,the same rule is applicable. No amicable settlement is valid for dirhams against posponed dinars or a posponed thousand agains half of it ,that half being immediately due or for thousand black against its haslf,provided this half is white. If he aggrees to amicably settlement on one thousand dirham and one hundred dinar against hundred immediately due or posponed dirham,that is valid. If one says "any one who has a credit of one thousand to be paid by a person,,you pay half of it tomorrow with a condition you acquitted from the rest" ,if the adresse does it,he becomes acquitted,otherwise he does not get acquitted.Abu Yusuf has a dissident opinion. If one says "I aggree with you to amicably settlement on half of the credit with a condition if ypu do not pay tomorrow that half,then a thousand is your obligation",he will not be acquitted if he does not pay it,as unanimously accepted. f one says "I let you acquitted from half of the credit with a condition you give me half of it tomorrow" ,the adresse becomes acquitted from the half,wheter he pays or not. Same rule to be followed if he says "pay to me half of the credit with a condition you become acquitted from the rest",and he does not fix any time. If he says "if you pay me half of the credit, you are acquitted" or "when you pay" or "whenever you pay",acquittance will not be valid,even if he pays it. Any one who says secretly to the creditor "I do not acknowledge for you until you potspone it for me a year or release me from it totally", then he does it,he deceived him. If he does it publicly,then the debt gets due immediately. Chapter If one of the two co-creditors aggrees on amicable settlement for 342 / the half of the credit against a cloth,the other creditor has the right of following the debtor for the half or taking the half of the cloth,except in the case where the first co-creditor guarantees for him one fourth of the debt. If he gets any thing from the credit,the partner shares with him and both of them sue the debtor for the rest.If he buys with his share some thing then he has to guarantee for the partner one fourth of the debt or he may follow the debtor. Any one who acquits the debtor from his share or cleans the debtor up agaiunst a previous debt,then he has nothing to guarantee to the other sharer.If he acquits him from some part of the debt,the rest has to be devided according the rato of his shares. If he postpones his share,that will not be valid,Abu Yusuf has a dissident opinion in this regard. It is invalid to make an amicable settlement made by one of the co-creditors who enters in Slam transaction against what he paid.Abu Yusuf is here too dissident. If the inheritants takes one of the heirs out from a property or real estate against a good,or from one of the two money units (silver and gold) against other or or for both of them against the two,these are valid,be the amount less or more. If settlement is done for the two money units or other than those agains one of the the two money units,then that is not valid,except in the case where the one whome is given gets more than his share from the same type of stuff. If it is done against a stuff,then that is in all ways valid. If there is a debt due for the public in the assets of a deceased and the heirs cleared it up in order to make the debt to credited to themselves,then the amicable settlement is void,even if they put a condition that the debtors are acquitted from that share. The same ruling if they relinquish the shere of the heir 343 / who was taken out as charity or they accredited him for the amount of his share or he transfered it to the debtors and they aggreed for the things other than that. To make amicable settlement for unknown assets of a deceased against the measurable and weifghable goods is controversial. The most correct opinion is its being valid if it was known that they were unmeasurable or unweighable,if all of them are in the hands of the rest. Amicable settlement and the devision are void if the deceased was drowned in the debt.If the debt was not more the assets,the better is to aggree on amicable settlement before the reimboursement,if it is done like that,the muslim jurists say that it is valid. The devision is also allowed from the point of teh analogy (qiyas),but not from the point of public acceptance (istihsan).It is said that the requirement of analogy is stopping the whole assets,but the consequence of the public acceptance is stoppimg the the amount of the debt.The rest can be devided and destributed. 45