Chapter 38. Judgements and Testimony
Qada' (plural aqdiya) is used for judgements, finishing, destruction performance, sending, carrying out, going, and determination, Technically, as Ibn Rushd says, it is reporting about a legal ruling in a binding way. It is one of the fard kifayas, i.e, there must be a number who undertake it since it contains necessary public welfare. It can become an individual obligation, as when there is one man who fulfils its preconditions and it is feared that rights will be lost for their people if he does not undertake judgement. It can be forbidden, when someone is ignorant and aiming for this world by it or tyrannical. Judgement with justice is one of the best pious actions and injustice in judgements is one of the greatest wrong actions and greatest sins. The Almighty says, "The degenerates will be firewood for Hellfire." (72:15) The Prophet, may Allah bless him and grant him peace, said, "The most arrogant of people to Allah and the most hated of people by Allah and the furthest of people from Allah is a man whom Allah appoints over anything in the Community of Muhammad in anything and is not just to them."
[Being is a qadi is a test for the one who undertakes it. The Prophet, may Allah bless him and grant him peace, said, "Whoever is made a qadi has been slaughtered without a knife." It has certain preconditions: being Muslim, sane, free, male, adult, equitable, intelligent and capable of ijtihad.]
One of its preconditions is ijtihad. It is not sound to appoint an imitator when there is a mujtahid available.
[It is permitted when there is no mujtahid. He must act according to the well-known position in the school of his Imam. Know that he means an absolute mujtahid. A lesser mujtahid is in the position of an imitator. There are two categories: a mujtahid of the school, who can establish the proofs, and a mujtahid in fatwa, who can exercise preference.
He begins the topic with the sound hadith.
38.1. Court procedure
38.1a. The onus is on the claimant
The plaintiff must produce testimony and the one who denies it takes an oath.
[ One of the shaykhs said that the claimant is the one who says that something is true and the defendant is the one who says it is not. The claimant must produce evidence because he is someone who seeks to establish something. The oath is taken by the one who denies it because he has the stronger side since he claims the basis and the basis is lack of liability.]
38.1b. No oaths unless the case is plausible
There is no oath taken unless it is established that they have had dealings or that is suspected. That was the practice of the judges of the people of Madina. 'Umar ibn 'Abdu'l-'Aziz said, "People have new cases acccording to the extent that they have new iniquity."
[ Dealings are established by the admission of the claimant or by the testimony of two just witnesses or one witness and the oath of the claimant. "Suspicion" is in respect of the theft and usurper. "Dealings" is in business and probability of suspicion is in unlawful appropriation or use of property.
[Hash.: The Mukhtasar says that "dealings" are established by a woman's evidence.]
The people of Madina agreed on the evidence, and it is singled out by the hadith where the Prophet, may Allah bless him and grant him peace, said, "The claimant produces evidence and the oath is for the one who denies it." The literal meaning of the hadith is that the oath is generally directed, but it is specific requirement that there were dealings between them. That is because there are modern cases according to what people devise of new forms of iniquity which is stressed by what 'Umar ibn 'Abdu'l-'Aziz said. Cases are decided according to ijtihad in that in which there is no text. There is no doubt that 'Umar ibn 'Abdu'l-'Aziz was one of the imams who are imitated in word and deed. This is not contradicted by his words, "Leave what the moderns innovate" because that is not based on the Book, Sunna or consensus.
38.1c. When the defendant refuses to swear
If the defendant refuses to take the oath, judgement is not given to the claimant until he swears an oath to what he claims to the best of his knowledge.
[When he says "I will not swear", for instance. The claimant does not receive his claim simply by the refusal of the defendant to swear. The claimant must swear to what he knows of the description of what he claims and its amount. This is for a claim of identification. As for an accusation, as when he suspects a person of stealing property, the claimant does not swear, but the defendant must pay when he refuses to swear. The oath is only taken by the claimant in a claim of identification.]
38.1d. The form of the oath
The oath is "By Allah, there is no god but Him." [Bi'llâhi'lladhî lâ ilaha illâ huwa]
[ This is the oath for all rights. Nothing is added or taken form this form. This is general to all people, Muslims and Kitabis. It is said that the Kitabi only says, "By Allah." ]
[The later is the apparent position of the Mudawwana.]
38.1e. Where the oath is taken
He takes the oath standing by the minbar of the Messenger of Allah, may Allah bless him and grant him peace, if it concerns something worth a quarter of a dinar or more. Outside of Madina, he takes the oath in the central mosque at the most esteemed place in it. The unbeliever swears "By Allah" in a place he respects.
[ He takes the oath standing to make it harsh. If he swears seated, that is not adequate. This is what is relied on it. The oath in Madina is taken at the minbar to deter the one who takes the oath. Other places, it is the Jumu'a mosque, and at the mihrab. If he refuses to swear there, he is considered as refusing to swear.
The Kitabi swears in a place he respects. For a Jew, he would swear in the synagogue and a Christian in the Church and a Magian in his temple.]
38.1f. Later evidence
When the claimant finds evidence which he did not know before after the defendant has taken an oath, judgement can be given in his favour by it. If he knew of it before, it is not accepted. There is also a view that it is accepted.
[ Whether the evidence was absent or present, if it is close to the time, like about the length of a week. Ibn al-Majishun said that judgement is given in his favour after he swears an oath that he did not know. If he knew about it and it was present, then the evidence is not accepted in the well-known position. Ibn al-Qassar says that it is accepted.]
[Hash: He moves on to discuss testimony which is a fard kifaya. If there is only one person capable to giving testimony, then it is an individual obligation. If he then refuses to testify in such a case, he is disobedient and can be dealt with by beating and imprisonment. Testimony has different ranks. The first is testimony in the case of illicit sex and sodomy. The second rank is dealt with here.]
38.1g. One witness and an oath in property cases
Judgement can be given on the basis of a single witness and oath in the case of property,
[ And that which leads to property, as when one of them claims that he has an option to withdraw in a sale and the other that the sale was final. The statement accepted is that of the one who says it was final and the one who claims there is an option must bring a witness and take an oath. It similar to hire, accidental wounds and recording.]
38.1h. Not for other cases
but one witness and an oath is not accepted in the case of marriage, divorce, and hudud punishments,
[This is the third rank.]
[Two witnesses are required in marriage, divorce and the hudud. It states in al-Mudawwana that if someone claims he has married a woman and she denies it, he cannot take an oath to it, even if he produces a witness. Marriage is only established by two witnesses. An example of that in divorce is when the woman claims that her husband divorced her and she has one witness. She does not swear an oath with him and the divorce is not obliged. An example of that in the hudud is that one man states that another man has slandered him and produces one witness. He does not swear with him and there is no hadd.]
38.1i. Not in homicide or deliberate wounding
nor is one witness and an oath accepted in deliberate wounding or homicide. Homicide is only decided by the qasama process. There is another view that wounds can be decided on that basis.
[ As when he claims that someone else has deliberately injured him and has only one witness. He does not swear with him. The oath is offered to the accused. If he swears, he is free. If he refuses, he is imprisoned. If he remains for a long time, he is indebted and removed. This does not mean that one judges in homicide by a witness and an oath along is with the qasama about the life.
It is also said that judgement can be made about injuries by one witness and an oath in general, whether deliberate or accidental. He presents this and it is well-known while putting the other first which is not well-known.]
[The view about accidental wounding being decided by one witness and an oath is because it leads to property in the form of the blood money.]
38.2. Women's testimony
38.2a. Their testimony regarding property
The testimony of women is only permitted in respect of property.
[ And what is connected to property, like hire.]
38.2b. The weight of a woman's testimony
A hundred women count as two women. Two women count as one man. Judgement is given on the basis of that with one man or an oath in cases where one witness and an oath are permitted.
[ That is like one man, since the rule that it is possible with an oath when in such cases.]
38.2c. Cases where women's testimony is accepted
The testimony of two women alone is accepted in matters which men do not observe, such as childbirth, the crying of a new-born child and the like.
[ This is the fourth rank of testimony.
Their testimony is accepted in what men do not witness, like birth and the cry of a new-born. The fact that he cries means that he was born alive and then he inherits and is inherited from. The like of that are things like defects of the vagina and body. This does not contradict what he said about the testimony of women only being accepted in property because that is particular to what we defined of his words.]
38.3. Rejecting a witness because of character or relationship
38.3a. Rejection of testimony
Neither the testimony of an adversary nor someone who is suspect is not allowed.
[ This is the testimony of an opponent against his opponent. Someone suspect is suspect in his deen because of committing something not permitted in the ShariÔa. It is also said that his testimony is suspect.
[Hashiyya: This is an opponent for material gain which is not insignificant. It is permitted if it is about something insignificant or it is a difference in the deen, as a Muslim testifying against an unbeliever. It, however, there is a long-standing feud, it is not accepted.
As the evidence of an adversary is not accepted, it is not accepted against the mother, father or son of his adversary, nor is his son's testimony accepted. Someone's testimony itself being suspect is when he is suspected of bias in his testimony.]
38.3b. Acceptable witnesses
One only accepts the testimony of reputable witnesses.
[ Being reputable ('adala) is not that a man is investigated for obedience so that no act of disobedience sullies it because that is impossible and only the true are capable of it. What is meant is he usually is obedient to Allah and avoids wrong actions.]
[Someone who is 'adl is free, Muslim, sane, adult, free of iniquity, debarment due to foolishness, and free of innovation. Innovation includes Mu'tazilites and Kharijites. Al-Qarafi said, "In our view, 'adala is Allah's right from the judge. He is only permitted to give judgement with reputable witnesses. Ash-Shafi'i said, "Since it is Allah's right, even if the litigants agree to accept the testimony of an unbeliever or one with whom Allah is angry, the judge is not permitted to give judgement on that basis." Ibn al-Qasim said that.]
38.3c. Those who have been punished for a hadd are not acceptable as witnesses
One does not accept the testimony of someone who has been given a hadd punishment nor the testimony of a slave, child, or unbeliever. If someone who has received the hadd for illicit sex repents, then his testimony may be accepted except in cases involving illicit sex.
[ This is when someone has not repented. If he repents, there is a text on that.
A slave's testimony while still a slave is not permitted because testimony is one of the ranks of the Shari'a which obliges rights against another and a slave is not worthy of it. The limitation is only while he is a slave. He can testify once he is free. The testimony of a child is not accepted although it can be accepted against another child.
The testimony of an unbeliever is not acceptable either against a Muslim or an unbeliever. If he was an unbeliever and becomes Muslim, his testimony is accepted in what does not refer to the time he was an unbeliever. It is not accepted after his Islam because he is suspected of removing the imperfection which his testimony rejects because of it is natural human natural to seek to remove shame.
If someone repents of illicit sex, his testimony is not accepted in illicit sex. It is only accepted in other cases than for which he received a hadd. This is general, even if he became the best person after his repentance.]
38.3d. Kinship bars testimony
It is not permitted for a son to testify in favour of his parents or vice versa, nor a husband to testify in favour of his wife or vice versa. It is permitted for a man of good character to testify in favour of his brother.
[ The point is that the branch does not testify to its root nor the root to its branch. As for the testimony of the branch for the branch of the root or the reverse, that is permitted as is the testimony of one of the parents for one of the sons against another son if there is no bias for the one in whose favour the testimony is given. Otherwise it is forbidden, as when a parent testifies for his pious son against the impious. A spouse cannot testify for the other spouse while they are married or in a revocable divorce. The same does not apply once they are divorced.
[The point about root and branches is that the principle extends upwards to grandparents and downwards to grandchildren.]
It is permitted for a brother in favour of his brother, but only in cases of property and injuries which entail property, not that which would bring his brother honour or rank, like testifying that he married in such a way that would bring him honour or rank.]
38.3e. Others whose testimony is inadmissible
One does not allow the testimony of a habitual liar, someone who openly commits a major wrong action, someone seeking his own self-interest or seeking to avert harm from himself, or a guardian in favour of his orphan. A guardian may, however testify against his ward.
[Hash: A habitual liar lies time and time again. A single lie has no effect. This is also unlawful lying. As for permitted lying, as when it is done in an effort to make peace between two people with a feud, that does not detract from his character.
[Someone who openly commits a major wrong action or commits a small of minor action which involves baseness like stealing a morsel or stinginess about a grain in the measure. As for the minor wrong actions which do not indicate baseness, like looking at a woman, that does not detract unless that is habitual.
It is not permitted for someone to testify for his own benefit, as when someone testifies for his partner about something regarding shared property, as when one of the partners claims money from a man and that money which he claims is part of the property of the partnership. His partner cannot testify for him because it would bring him benefit. Averting harm is like when a man owes a debt to another and another man claims a debt and this one testifies that he paid his debt. He is suspected of defending himself in the quarrel between him and the other claimant, so he will say, "I will divide the property of the debtor with you," or "I will have it alone and you have no debt."
The same applies to a guardian because this is part of bringing about self-interest by his testimony. The point is repeated because he can testify against him. The expression in the Mudawwana is that if someone cannot testify in favour someone, is permitted to testify against him.]
38.4. Testifying to the character of a witness
38.4a. Such testimonial is not permitted from women
It is not permitted for women to testify to the good or bad character of a witness.
[ Neither about men or women. Their testimonial is not accepted in either case.]
38.4b. Form of testimonial about character
Declaring someone to have good character (tazkiya) is only accepted when someone says, "He is reputable and pleasing ('adlun ridâ)." A single witness to the character or bad character of a witness is not accepted.
[ Justice is a firm form in the self which is compelled to have constant taqwa. One witness is not accepted outwardly. ]
[Hash: Reputability is in action and pleasing means for testifying. It is said that reputability it between a person and people, and being pleasing is between him and Allah.]
38.5. Testimony of minors
The testimony of minors may be accepted on wounds before they have dispersed and no adult has been with them.
[ This is about what happens among them. Their testimony is also accepted in killing in the famous position as well as in wounds, but only before they separate, out of the fear that they might be coached by an adult.]
[Hashiyya: There are further preconditions. They must be male, free and Muslim. Two or more of them must testify and they must have the same testimony. The one who gives evidence must not be a relative of the one in whose favour he testifies nor an enemy of the one he testifies against. They must have discrimination about the action. They must have been in the same group. It is also said that the child must be at least around the age of ten.]
38.6. Sale disputes
When two parties to a contract disagree, the seller is asked to swear an oath and then the buyer either accepts that or swears an oath and is free of the contract.
[ They may disagree about the price as when the seller says that it is a dinar and the buyer half a dinar. First the seller swears. The School obliges that the seller begins with the oath and takes an oath denying the claim of the buyer and confirming his claim in the same oath. He says, "By Allah, I did not sell it for half a dinar, I sold it for a dinar." Then the buyer can take the goods for what the seller says, or swear to deny the claim of the seller and affirm his claim. He would say in this example, "By Allah, I did not buy it for a dinar, I bought it for half a dinar." Then he is freed of the binding nature of the sale, and he can choose between taking the goods for what the seller swore or swear and be quit of the transaction.]
38.7. Ownership disputes
38.7a. Contention over ownership
When two claimants disagree about something in their possession, they swear oath and then the disputed property is divided between them.
[ This is when each of them claims ownership and neither has any evidence nor proof of his truthfulness and no one else contends with them in it, and it is part of which either of them can acquire. It is shared between them because their claims are equal and one cannot be preferred over the other. If one of them refuses to take an oath, then his right is cancelled in favour of the other.]
[If there are three, it is divided between the three.]
38.7b. When there are character witnesses
If the two produce witnesses, judgement is given in favour of the one with better character. If the two witnesses are equal, then the two parties swear an oath and the property is divided between them.
[ If each of them has a witness who testifies for him and one of the dominates the other in justice, then judgement is given in favour of the more just after he swears that he did not sell that thing nor give it him nor did it remove from his property by any aspect at all. If neither witness is preferred, then the two witnesses must be the same in justice and one does not prefer by number unless it reaches the level of mutawatir. They swear and the disputed thing is divided between them because it is not more fitting to give judgement for one of them than the other.]
37.8. Retracted testimony
When a witness retracts after judgement, he is liable for any losses in which his testimony resulted if he admits to perjury. The people of Malik said that.
[ Ibn Naji says that the apparent meaning of the words demands that all the people of Malik differentiated between him admitting that he gave false testimony or not admitting it. In the first, he is liable but not in the second. That is not the case, Mutarrif, Ibn al-Qasim and Asbagh said in the Wadiha that he is liable absolutely because the error and deliberate regarding people's property is the same.]
38.9 The statement of an agent
38.9a. His statement is accepted
When someone says, "I have returned to you what you entrusted to me to pay" or "to sell" or "I paid you its price" or "I have returned your deposit or your loan," then his statement is accepted.
[ As when he entrusts him with an amount to repay a debt he owes to someone and the agent does not find him and returns it. If the one who entrusted him contends with him, then one takes the word of the agent since he is a trustee. The same applies in cases of a deposit.
In all these cases the statement accepted is that of the one entrusted. It maybe that the author follows what the shaykhs of the Mudawwana said when he makes a statement on it, his word must be accompanied by an oath and so the statement accepted is when he swears an oath to it. ]
38.9b. Proof of delivery
If someone says, "I gave it to so-and-so as you commanded," and that person denies it, then the one who delivered it must produce proof. Otherwise he is liable.
[ He must have evidence that he gave it to him, otherwise he is liable for it.
[Hashiyya: This is when the custom is to produce witnesses or he was commanded to have witnesses. Then not having witnesses is negligence on his part. If the custom is not to have witnesses, then he is not liable, as this is a case of acting according to custom ('urf).]
38.10. The statement of a guardian (wali)
The same is true in the case of an orphan's guardian. He needs proof about what he spent on them or gave to them. If, however, they are in his direct custody, then he is believed about their maintenance when it seems probable.
[ This is when the orphans dispute with him about spending and claim that he has not spent on them or they contest the amount he has spent when they were not in his custody as when he spent on them is feasible or well-known, if they are in his care. That is because of the difficulty of having witnesses in the later case and so the onus is lightened.]
38.11. Amicable settlements (sulh)
An amicable settlement is permitted unless it leads to the unlawful. It is permitted in both affirmation or denial.
[ Unless it involves something forbidden in the Shari'a, like paying gold for silver on a delay. It is permitted in affirming a sale, as when it is goods or animals and is settled for dirhams, or denial when he claims a house and the defendant denies it, but satisfies him with something. It is permitted in contracts.]
[Hashiyya: Abu Dawud and at-Tirmidhi report that the Prophet, may Allah bless him and grant him peace, said, "Reconciliation between the Muslims is permitted except for a reconciliation which makes the lawful unlawful or the unlawful lawful." An example of the first is when about a house which is claimed for wine or pigs, and the second is exchanging goods for a garment provided that one who takes it does not wear it or sell it."]
38.12. A slavegirl who marries claiming she is free
If a deceitful slavegirl marries a man on the basis that she is free, her master can reclaim her and claim the value of any child on the day of the judgement.
[ She deceives him by her actual words or by giving the appearance that she is free to the one who wants to marry her. The husband owes the minimum of what is named and the brideprice of a woman like her. The price of the child is paid by the father since the child is not one whom the master has to free. If the master has to free him, there is no liability for the deluded husband to pay the price of his child, as when she deludes the son of his grandparent and he marries her thinking she is free and then he learns that she is a slave. The child is freed by his grandfather or grandmother.]
38.13. Establishing a claim to a slavegirl
38.13a. The right of the legal owner
When someone establishes his claim to a slavegirl who has borne (her new master) a child, he is entitled to her value and the value of her child on the day of judgement.
[ The case is when she has borne a child to a free person who did not acquire her illegally, whether by ownership, gift, inheritance, purchase or whatever manner of ownership. The real owner is entitled to the price of the slavegirl and the price of the child on the day of judgement and the child is free and his lineage established. ]
38.13b. Other views
It is also said that he takes her and the price of the child, and it is also said that he only takes her price, unless he chooses to take the price. If he choose to take her price, he takes from the abductor who sold her.
[ He takes her value on the day he had intercourse with her. All three statements are made by Malik. He takes the price from the abductor when he chooses the price as is confirmed by the sale of the usurper.]
38.13c. If the usurper still has her
If she is still in the possession of the abductor, then he receives the hadd and the child and its mother are slaves of her true owner.
[ If, after birth, the slavegirl to whom someone is legally entitled is still in the unlawful possession of the one who abducted and he knows she is not lawfully his, then he receives the hadd because he had illicit sex.
The child is a slave since it is without father. It would have been better to say that the child is ascribed to the lineage of the mother because it is connected to her and not him.
The ruling regarding someone who purchased her from the abductor, knowing about his abduction, is the same as that of abductor: his lineage is severed when there is evidence that he knew before intercourse that she was unlawfully abducted.]
38.14. Establishing a claim to land
38.14a. If land has been build on
If someone establishes his claim to land after it is has been built on, he should pay the price of the buildings which are standing. If he refuses to do that, the buyer should pay him the price of the undeveloped land.
[ In the case of someone entitled to take land from someone who has bought it or someone else who has not unlawfully acquired it after there are buildings, planting and the like on it, he can pay for the improvements and take the land with its structures or the buyer can pay him the value of the empty land.]
38.14b. When the owner refuses either course
If the buyer refuses, then they become partners in the property according to the value of which of them owns.
[Hash: One version has, "either of them refuses."]
[Or when either of them refuses to pay the other. They become partners according to the value of each of them. If the land is worth 10 dinars and the buildings worth 20, then one owns two-thirds and the other one-third. One assesses the value on the day of the judgement, according to the famous position, not the day of construction of the buildings.]
38.14c. The case of the usurper
A usurper, however, is ordered to remove his buildings, crops and trees. If he wishes, their owner can be paid the price of the debris and trees, after deducting the cost of hiring someone to remove that. He owes nothing for what has no value after it is uprooted or demolished.
[ It is not permitted for the two of them to agree to have that remain in the land in exchange for rent because that would lead to selling crops before they are ripe in exchange for letting them remain because the owner would be able to take it free of charge in the first division or by the value uprooted in this second division after it is sold to him.
[Hash:. If the time for planting that land has passed, the owner does not command him to remove the crop, but he is paid rental for that year.]
Then the trees can be taken as firewood. He is allowed to gives the owner the price of its debris and crops. The like of that is that its price uprooted is 10 dirhams and the wage for removing it is four dirhams. He can pay him six dirhams. He is not liable for things like engravings, or plants or trees before they are of any use.]
38.15. Increment in usurped goods
38.15a. Any increment must be returned
Someone who unlawfully acquired it must return any revenue, but no one except someone who has acquired it unlawfully is obliged to return it.
[ This includes the thief, treacherous person, pickpockets and the like and all of those about whose unlawful possession is clear without any uncertainty. That is also based on the words of the Prophet, may Allah bless him and grant him peace , "The property of a Muslim person is only lawful when he is happy about it." The non-usurper is one with a doubt, even if he bought it from an usurper when he did not know.
Since the child is not part of the revenue and he fears that it might be included, he continues:]
In the case of the offspring of animals and slavegirls, if they have children by other than the (new) master, they are taken by the one entitled to the mothers from the person who purchased them or has gained possession of them for some other reason. If someone unlawfully abducts a slavegirl and has intercourse with her, the child is a slave and he receives the hadd punishment.
[ Other means would be like someone who was given her as a gift or sadaqa because the ruling of the child is that of the mother since she is property of the one to whom she belongs and so the owner takes him. The usurper does not owe the bride-price, but a fine for the lowering of her value due to intercourse.]
38.16 Building Regulations
38.16a. Responsibility of the owner of the ground floor
The owner of the ground floor is responsible for maintenance of ground floor as well as for the wood of the ceiling and the support for the rooms above it when the ground floor becomes weak and dilapidated until it is sound. He is compelled to make the repairs or to sell it to someone who will repair it.
[ This is when someone owns the rooms above him. If the ground floor becomes weak, it is feared that the house will collapse. The owner of the ground floor must make the repairs since he is able to do that. He is responsible for the wood of the ceiling and the supports. Since the solidity of the house depends on the occupant of the ground floor, he must either repair it or be made to. If it is sold to someone else and he refuses to repair it, then must either repair it or sell it to someone who will put it right.]
38.16b. Alterations not allowed
"There is no harm nor exceeding harm done." He must not do anything which will harm his neighbour: like opening a window facing him by which he can see his neighbour, opening a door directly in front of his door, or digging anything that will harm his neighbour, even in his own property.
[ This is a sound hadith. There is no harming the one who does not harm you. That is the meaning of "no harm". There is no doing to him more than he does you and so exceeding his harm. As for the like of his action or less than it, that is permitted as Allah says, "So if anyone oversteps the limits against you, overstep against him the same as he did to you." (2:194) This is in relation to the common people. As for the great people and the elite, they meet evil with correctness.
If there already is a window onto the house of the neighbour, he does not have to block it, but he is forbidden to look at his neighbour from it so that the male can be distinguished from male. He does not open a door opposite his neighbour because that would entail looking at the private parts of his neighbours. He does not dig something which will harm him, even if it is in his own property, like digging a well next to his wall or his lavatory.]
38.16c. Judgement on a wall
Judgement on the ownership of a wall is given in favour the one whose house has wooden or masonry joints in the wall.
[ Qumut means the wood or palm fibre joints put in the middle of a wall to keep it from breaking and the masonry joints are stones which support the structure. The terms are interchangeable.]
38.17. Water Supplies
38.17a. Excess water
Excess water may not be denied in an effort to prevent people from grazing animals.
[ The form of that is that there is pasture next to water where some people camp, desiring to graze in it and the owners of the water prevent them from getting water so that they will leave their pasture.]
38.17b. Use of wells
People with wells for their livestock have the first claim on water for their animals and then the rights of other people are the same.
[ The animals of the people who own the wells water their animals and then the animals of the travellers can be watered. People are equal in the right to the water afterwards.]
[When the well are not on private land, and there is a conflict between those who dug the wells and travellers.]
38.17c. Springs or wells on private land
If someone has a spring or well on his land, he may prevent others from using it unless his neighbour's well has caved in and he has plants he fears he will lose. Then he cannot deny him his excess water. There is disagreement about whether he can take payment for that or not.
[ Or if the well dries up. In this case he is obliged to let his neighbour use it with three preconditions. The neighbour has crops which depend on water, his well has collapsed and he fears the crops will be lost and he has begun to repair his well without delay. There is disagreement about whether he can take payment for that. It is related from Malik that he does, and it is stated in the Mudawanna that he does not. The reason is that it is an obligation to give the excess of water by way of help, so he should not take payment for it. The reason for the first opinion is that he uses the property of someone else to revive his own property.]
[Hash: The relied on position is that he does not take payment.]
38.18 Another building regulation
Someone should not refuse to allow his neighbour to insert beams into his wall but he cannot be compelled to accept that.
[ The meaning is that it is recommended. It is confirmed that the Prophet , may Allah bless him and grant him peace, said, "No neighbour should prevent his neighbour from inserting a piece of wood in his wall." It is recommended which is why he says that he cannot be compelled. That indicates the refutation of the position of Ibn Kinana and ash-Shafi'i that he can be compelled.
[Hash: The prohibition is one of dislike.]
38.19. Damage done by animals
If livestock ruin crops and gardens during night, the owners of the animals are liable for that. They do not owe anything for damage done during the day.
[ The details of this are in the Muwatta' and elsewhere. It is related from the Messenger of Allah, may Allah bless him and grant him peace, that the owners of a garden must guard it in the day, but what animals damage in it at night is the liability of the animals' owners. The place of the liability for what the animals destroy at night being that of their owner is when there is no shepherd with them. Otherwise it is the shepherd who is responsible.
[Hash: This is when he lets them loose at night and does not die them up. If he ties them up, he is not liable. It refers to animals which are normally tended, and not creatures like bees and doves for which they are not liable. When he is liable for damage, he pays the value or replaces what has been destroyed.
38.20. Bankruptcy claims
If someone finds his goods in the possession of someone who has become bankrupt, he can either take his share [with the other creditors] or recover his actual property if he can identify the individual item. If, however, the debtor has died, he must take his share with the rest of the creditors.
[ If he finds his goods which he sold to a man which are not lost and for which he has not been paid before the buyer goes bankrupt, then he has this choice. He either shares with the other creditors in the property as a whole and takes his share or, if it is something like an animal or a slave, he can recover it. If it is something like wheat, he can only take a share. If the bankrupt person has died, and he has not received the price before the buyer dies, he is not more entitled to his goods than the other creditors. He must take a share.]
38.21. Guarantee of debts
The one who gives a guarantee is liable, and the one who guarantees the appearance of the debtor is liable if he does not bring the person unless he stipulated that he would not be liable.
[ When he is unable to fully satisfy the creditor. If someone who guarantees an appearance fails to bring the debtor present at the time he is required to bring him, if is liable for the amount the debtor owes unless he stipulated that that was not binding for him to be responsible for the money if the debtor failed to appeared. Ibn 'Umar stated that if he is able to bring him and neglects it, then he is liable.]
38.22 Transfer of Debts (Hawala)
38.22a. A transfer is not revocable
If someone agrees to have his debt transferred to a third party, he cannot go back to the first debtor, even if the third party becomes bankrupt, unless the first one deceived him.
[ If he deceives him, that means that he knew that the person to whom it was transferred was insolvent and still transferred it to him. If that is the case, the original debtor is not freed of responsibility and the debt reverts to the first debtor.]
38.22b. The transfer
The transfer is based on an original debt. Otherwise it is a guarantee.
[ If it is not on the basis of a debt, then he is a guarantor, i.e. responsible, because a transfer is transferring the responsibility for a right to the responsibility of another. If there is no basic debt, there is no transfer, even if the term "transfer" is used. The point of that is that the creditor can go back to the original debtor who is not free is liability by that because the guarantee does not eliminate the responsibility of the one guaranteed. It is another liability. If it had been an actual transfer, he would be free of responsibility and the one who transferred it would not be able to return to him.]
38.23. More on the guarantee of debts and bankruptcy
38.23a. When a guarantor must pay the debt
A guarantor is not liable except in the bankruptcy or the absence of the debtor.
[ This refers to his words that the guarantor is liable. The situation in which he is liable is the absence of the debtor when the creditor has not ready money with which he can pay the debt. If he is absent, but not far away, he is considered as present. Then he is not liable.]
38.23b. In case of death or bankruptcy
The death of the subject or his bankruptcy makes every debt he owes immediately due, but not debts which other people owe to him.
[ What is meant bankruptcy is when a judge orders the stripping of his property, not just the position of creditors. That which is deferred is not immediately due. As for deferred debts becoming due by death, that is because the debt is attached to blood, and it is ended by death and the creditor no longer has a connection to liability. Therefore what was deferred becomes due immediately and the liability moves to the legacy because it is not connected to other than the two. When one is gone, only the other remains.
As for its becoming due by bankruptcy, it is because the creditors made their agreement based on full responsibility, and that is destroyed by bankruptcy and so that no longer remains.
The debts that others owe him do not become due by his death or bankruptcy, because their place, which is the responsibility, still exists.]
38.23c. A slave with debts is not sold to settle them
A slave permitted to trade is not sold in order to discharge his debts nor is his master prosecuted for them.
[ The master is only prosecuted if he tells them, "Employ him" and they do so.]
38.23d. Detaining a debtor whose financial situation is unclear
A debtor may be imprisoned until he is cleared. He is not imprisoned if he is known to be insolvent.
[ He is imprisoned until his state is known. When his insolvency is confirmed by the testimony of two just witnesses who testify that they do not know that he has money either public or hidden. Then he is not released until he takes an oath that he has no wealth either outward or hidden and his oath is absolute and he does obtain property, he will pay his debt, even if he any beyond his immediate needs.]
[Hash: Someone who is well off and refuses to pay his debts is imprisoned and flogged time after time until he pays what he owes. That is at the discretion of the judge.
A man is imprisoned with other men and a woman is lodged in the protective custody of a trustworthy woman.]
38.24. Apportionment of jointly owned property
38.24a. Division of property
Buildings and property which can be divided without harm are divided (in case of dispute).
[ Such property includes animals, goods and measured and weighed things. This is when there is a dispute and some of the owners want to divide it and some do not. The one who refuses to do that is compelled to do it.]
38.24b. Enforced sale
In the case of something which cannot be divided without harm, if one party wishes to sell it, the other partner can be compelled to sell it.
[ This is something like a single slave. If the object would be destroyed by division or would be harmed by it, like a pair of leather socks, when division would destroy its use. If the partners contend about any of that and are not happy about using it jointly, and one wants to sell it while the others refuse to do that, they are compelled to sell it because it is not possible to divide it to end the dispute. Therefore it must be sold in order to end the dispute.]
38.24c. Division by lots
Division by lots is only done with the same category of thing. None of the partners can be given a price [while the other takes the goods]. If they decide to equalise the shares, the division is only permitted when they both consent to it.
[ It is not permitted to draw lots when the items consist of two categories and or disparate types, like apples and peaches. Each category is put on its own so that there no clear uncertainty in the lots. There is no paying a price since that would result in the existence of two different categories and lots can only be used in the same category.
[Hash: Ibn al-Hajib adds that the property on which lots are drawn is shared property. Each category is divided on its own. You cannot have one lot consist of houses and the other a garden, for instance. Doing that would involve uncertainty (gharar).]
An example of equalisation is when there are two garments. One is worth two dinars and the other worth one. Lots are drawn for them, and the one who gets the garment worth two dinars gives the other five dirhams to equalise them. That is only permitted with mutual consent as when one says the other, "You have a choice: either you choose that whose value is two dinars and give five dirhams or you take that whose price in one dinar and take five dirhams."]
38.25. Function of an executor (wasi)
38.25a. Appointing an guardian-executor
A guardian appointed by the original guardian is like the guardian. A guardian can trade with the property of orphans and arrange the marriage of their slavegirls. If an untrustworthy guardian is appointed, he may be removed.
[ If the basis is appointment by the father, not by the Qadi. If he is appointed by the qadi, then he cannot appoint someone else. He cannot buy his property himself. If he does that, the ruler should examine the sale. If he sees in good in it, he allows it, Otherwise, he cancels it.]
[Hash: The executor must be Muslim, adult, sane, legally responsible and reputable.]
38.25b. The sequence is which the estate is dealt with
One begins with the cost of the shroud, then paying debts, then paying bequests and then inheritance.
[ After specific requirements like the umm walad and woman whose emancipation is stipulated at a certain term and the like. Then comes the cost of the shroud and then debts which are firm by evidence or admission when he was healthy or ill, but that is when there is no suspicion. Then the bequests are paid and finally the inheritance is distributed.]
38.26. Squatter's Rights
If someone lives in a house belonging to someone else for ten years, it then becomes his if the owner was present and then did not claim anything from him. Living in the house of a relative or in-law this for this period of time does not establish this for him.
[ Or it can be land which is more general. The owner being present means present and sane, and not a relative or a partner. The owner must know about his occupation and his ownership. If he does not know and says, "I did not know it was my property while this person had it and I only just found the documentation with so-and-so," or he is an heir and claims that he did not know that it was his property, his word is accepted.
[Hashiyya: Hiyaza, which includes the claim to the right of possession. Such claims do not extend to animals and goods]
This is when he does not claim anything and nothing prevents him from claiming. If the squatter has a force and he stays, even a long time, the claim is heard. After that time his evidence is not heard because custom denies it since he was silent about the claim for this entire time outside of the right of Allah. If it is Allah's right, it is not lost by occupation, even for a long time, as when someone occupies the road of the Muslims or a part of it or a mosque or a place which is a waqf for someone else.]
38.26a. Debt owed to an heir
It is not permitted for a sick person to admit to a debt owed to an heir or to state that the heir has paid him a debt he owes him.
[ This is in an illness from which it is feared that he might die. He cannot affirm the debt which he owes by simple admission or say that he has been paid a debt as when he says, "So-and-so is owed such-and-such", and the form of its admission of taking it is that he says, "I took the debt which I am owed." This is because there is the suspicion that if his heirs consist of his daughter and nephew, there is basis for his daughter and so one judges by suspicion and his affirmation of taking it is only because of his love for her.]
38.26b. A bequest to perform hajj
If someone leaves an instruction in his will that the hajj be performed (on his behalf), his instruction is carried out, but we prefer a bequest of sadaqa.
[ This is paid out of the disposable third. The Malikis prefer sadaqa to a bequest for hajj because there is no disagreement about the deceased benefiting from sadaqa whereas there is disagreement between scholars about whether the deceased benefits from the hajj. The position of Malik is that it is of no benefit for him.]
38.26b. Someone employed to perform hajj
If the one hired to make hajj dies before completing it, he receives the fee for the amount he travelled and the rest is returned. What he spent is his liability, unless he took it on the basis that he would be paid on completing it. Then the liability is that of those who hired him. If anything is left it is returned.
[ This is when he dies on the way to Makka or before completing the practices of hajj. He is paid according to the distance he travelled in respect of difficulty or ease and fear, not simple distance. So a quarter of the distance may be equal to half the wage. The rest is returned because he is only entitled to the wage by completing the task. He is liable for as spent because it is recompense for the task.
In the second case the liability is that of the hirers since they were negligent in not stipulating liability which is more careful. The form is that he is given money to make hajj and it is his if he completes it, and he has nothing if he does not.]
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