[In this chapter he also mentions mines and the zakat on merchandise. Linguistically zakat means growth and increase and it is used for the increase in crops and property. In the Shari'a it is a term used to designate the amount of money or goods taken from specific property when it reaches a specific amount at a specific time which must be spent in specific categories with specific ways. It is called zakat because the one who gives it grows by doing it with Allah Almighty, i.e. his rank with Him is raised by that. It is attested to by the words of the Almighty, "Take sadaqa from their wealth to purify and cleanse them" (9:103)]
It is obligatory to pay zakat on money, crops and livestock.
[Money consists gold and silver and is mentioned in respect to the tradition. What is mentioned of gold and silver is called "specie" ('ayn) by its honour. Crops consists of food groups used for life in general. Livestock refers to camels, cattle, and sheep and goats.
Zakat became an obligation in the second year of Hijra. The evidence for its obligatory nature is the Book, Sunna and consensus. Whoever disputes its obligatory nature is an unbeliever. If someone affirms that it is obligatory but refuses to pay it, he is beaten and it is taken from him by force and that is enough: he is not an unbeliever. Ibn Habib says he is an unbeliever, but this is unlikely.
There are preconditions for the obligation and preconditions for the validity. As for the first, they are seven in general because Islam is one of the preconditions of the obligation since the unbelievers are not responsible for the rulings of the Shari'a. The soundest position is that they are addressed to them, and so Islam is a precondition for its validity.]
[The preconditions of the obligation are:
The preconditions for its validity are four:
Zakat on crops must be paid on the day they are harvested.
[There are two statements about grains and three about fruits. The first is by Malik who says that when the palms are appraised, the grapes are good, the olives are black or near to it, the crop was begun to ripen and does not need water, then zakat is due on it . Ibn 'Abd's-Salam said that it is the well-known position. The second is by Ibn Maslama is that it is only obliged on crops when they are harvested and only obliged on dates when they are cut. His evidence is the words of the Almighty, "Render the dues that are proper on the day that the harvest is gathered." (6:141)This is the meaning "harvest and cutting". The third is particular to dates which is that they are only obliged by estimation, which is made by al-Mughira. There is an order to these things: first soundness, then estimation and then cutting; and ripening is first and then harvest.]
Zakat on money and livestock is paid once a year.
[Money is other than mines and treasure-trove. Zakat is obliged on money and livestock once a year, after the end of a full year. Zarruq said, "The precondition of livestock after a year is that the collector comes in the well-known position if he exists and arrives. Otherwise it is obliged after the year by agreement. According to the well-known position, if it is paid before he comes, then it does not satisfy the requirement.]
No zakat is due on any amount of dates or grain less than five wasqs.
[Since it is sound that the Prophet said, "No zakat is due on grain or fruit until it reaches five wasqs." (Muslim) Ibn 'Umar said, "See whether legumes are included with grain, raisins and olives with fruits or not. Some commentaries include it in grain and make grain include other things than fruits. There are 19 types: wheat, barley, sult-barley, rice, millet, sorghum, and Arabian wheat, and seven legumes: lentils, beans, broad beans, chick-peas, lupines, peas, grass peas, and oil seeds, which are the seeds of red radishes, sesame designated as sesame and cartham (safflower), and olives and raisins. So there are twenty types of fruits. No zakat is obliged on others like cotton seeds or rape and the like.
They mentioned two rules for the five wasqs: one is by measure and the other by weight.]
Five wasqs is the same as six and a fourth qafizes. (609.84 kg.) One wasq is sixty sa'as measuring by the sa'a of the Prophet, may Allah bless him and grant him peace. One sa'a is four mudds.
[Wasq linguistically is joining one thing to another. The Almighty says, "and the night and all it shrouds (wasaqa)," (84:17) i.e. joins and gathers the darkness and the stars. It is 60 sa's by the sa' of the Prophet. So he states that the nisab in the year is 747 mudds with the mudd of the Prophet. Then he goes on to explain the categories which are joined together and when they form the nisab, there is zakat due, and the types which are not joined since not all of the categories are combined to reach the nisab.]
Wheat, barley and sult barley are considered as one category for zakat purposes
[Wheat, barley and sult barley are combined as a single category of grain as is stated in the School. They are also a single category in sales according to the well-known position and so disparity in selling one for the other is forbidden. They are combined when they are cultivated and harvested in the same year. When they are cultivated in two or more years, it is said that one considers what is grown at the same time and they are added to each another, and what is grown at one time is not added to what is grown at another time. It is said that what is considered is the crop. If he plants the second before harvesting the first, it is added to it. Otherwise it is not. The first is from Malik in the book of Ibn Sahnun and the second by Ibn Maslama.]
so that if together they add up to five wasqs you have to pay zakat on them.
[Ibn 'Umar said that he pays from each grain what is representative of it and so he pays the highest from the highest, the lowest from the lowest, and the middle from the middle. If he chooses to pay the highest grain for the lowest, that is allowed. If he pays the lowest for the highest, that is not allowed. So there is agreement regrding grains that he pays from every type what is representative of it. There is agreement regarding animals that he pays the middle. There is disagreement about dates: it is said that they are like livestock, and it is said like grains.]
In the same way different kinds of pulses are added together
The Maliki School considers that pulses are considered as a single category for zakat, but not for selling. Pulses includes various types: peas, chickpeas, lentils, grass peas, broad beans, lupins, beans and sesame seeds. The commentator on the Muwatta' said that radish seeds are included with them.]
and this also applies to different varieties of dates and raisins.
[The same is for dates and raisins when they reach five wasqs.]
However rice, sorghum and millet are each considered to be in a different category and are not added together when calculating zakat.
[Each of these are a separate category and according to the School they are not added together because they are clearly separate and their form differs. He says this is in reference to zakat to indicate the the person who says that they are all one category in usury, i.e. disparity is not allowed between them. That is the position of Ibn Wahb. The well-known position differs from that.]
If there are various types of dates in a date-garden you use the middle quality when paying zakat.
[So they are good, middle and poor. In the well-known position, the middle variety are used. If there is one type, it is taken from it, be it is good or poor. He does not have to bring the middle or the best of it. If there is both excellent and poor, he takes each from its share, even if the poor is few, because the basis is that zakat is taken from its source by the words of the Prophet: "The zakat of every property is from it." The sunna is makes certain requirements in livestock. So the sunna is that it is paid from the generality of livestock because it is taken from the middle and the rest remains on its root.]
You pay zakat on olives when the amount of them reaches five wasqs, paying the zakat in oil.
[i.e. measured in dry ones. Ibn Wahb says that there is no zakat on them nor in anything which has oil. The sound position in the basis of the School, i.e. sound and current according to the rule of the School is that that which is not a foodstuff has no zakat paid on it. We read in at-Tahqiq, "Even it is not a comestible, it is included in it if it is sound for food." According to the statement that there is zakat, its zakat is given from its oil, not from its grain in the well-known position. There is no precondition that oil reach the nisab in weight. The precondition is the grain reaching the nisab, as was clearly stated by the Shaykh. Ibn al-Hajib reported the agreement on that. If it is paid from its grain, that is not allowed.]
You also pay zakat on sesame seeds and radish seed in oil for them. If you sell this produce, it is possible to pay the zakat owed using the money you have received, if Allah wills.
[And other things which are pressed for oil when that reaches the nisab. if the olives are sold, then it is paid from the price whether the price reaches the nisab or not. The nisab of the grain itself is only considered, not the price. One of them said that he said, "If Allah wills" because of the weakness of this position, and some say that it is because of the strength of the disagreement regarding it. That which is in the Mukhtasar and its commentary is that if olives and their like have oil, it is paid from their oil. If they have no oil, like olives of Egypt, it is paid from their price. It is like that with what is it not dried, like the fresh dates and grapes of Egypt and green broad beans. Zakat is paid from their price, even if they are sold for a lot less than that on which zakat is obliged if it is estimated to be five wasqs. If it is less than that, nothing is obliged on it, even if he sells it for many times more than what would incur zakat.]
You do not pay zakat on fruit and vegetables.
[Like apples and apricots, nor vegetables based on what is reported by Mu'adh ibn Jabal: the Messenger of Allah said, ""There is a tenth ('ushr) on land watered by the sky or springs or running springs.There is half an 'ushr (5%) on land which is irrigated," i.e. that which is transported from a river or well to water crops by some device. That is about dates, wheat and grains. As for cucumbers and watermelons, they are exempt as the Messenger of Allah exempted them.]
There is no zakat on gold if you have less than twenty dinars. If the amount reaches twenty dinars you pay one half of a dinar, in other words, one-fortieth of the total amount. Any more than that is calculated on the same basis, however small the additional amount is.
There is no zakat on silver if you have less than two hundred dirhams, which is five uqiyyas - one uqiyya being forty dirhams. This is based on seven dinars being of the same weight as ten dirhams. If you have two hundred such dirhams you pay one-fortieth, that is five dirhams. Anything more than that is calculated on the same basis.
[By the legal dirham, which is the Makkan dirham. Its weight is 555 grains of middle barley corns. Each dinar weighs 72 grains. It is said that it is the dirham of measure because by the legal measures.]
Gold and silver and considered as one category for the purposes of zakat. So if, for example, someone has one hundred dirhams and ten dinars they should pay one-fortieth of each.
[Since that is what the Prophet did in that. It is clarified in at-Tahqiq: "It is related that Bukayr ibn 'Abdullah ibn al-Ashajj said, 'The sunna is that the Prophet joined gold to silver and silver to gold and took zakat from them."
He goes into a subcategory of that. The joining is by parts and not by value. The opposite would be to make each dinar equal to ten dirhams, even if its value is many times over, as when he has 100 dirhams and ten dinars, or 150 and 5 dinars. If he has 180 dirhams and 1 dinar equal to 20 dirhams, he does not pay anything. It is permitted to pay one of the two types for the other according to the well-known position.]
There is no zakat on goods unless they are for trading purposes.
[Goods comprises slaves, real estate, land, clothes, wheat, and all grains, fruits and animals when they are less than the nisab. As for private property, there is no zakat on it by agreement. As for merchandise, there is zakat on it by agreement. As for hoarding which is what is kept from the markets for a large profit, zakat is obliged on it. ]
[There are preconditions for the obligation of zakat on it.
1. One of them is the intention, which is indicated by "unless they are for trading purposes." This means he only intends them for commerce, or commerce as well as private ownership, or revenue. He is careful about the lack of intention so when there is an exchange of goods which is not intended for commerce, as when it is simply for ownership or just for revenue or both, then there is no zakat.
2. The second precondition is that he keeps thegoods from the markets until a time when there is a good profit.]
If you sell goods after one year or more from the day you bought them or paid zakat on their price,
[3. The third precondition is that he owns them by paying for them. This precludes goods possessed through inheritance, gifts or the like. There is no zakat on them except after a year from the day their price is received, even if he delays receiving it to avoid zakat.
4. The fourth is that he sells them for money, not that he sells them at all or sells them for other than money, unless selling them not for money is out of the intention to evade zakat. There is no difference in selling between it being real or metaphorical in that a person consumes the item and the merchant takes his price. What is sold must reach the nisab because stored goods are not evaluated as opposed to the situation where there is a constant turnover. So simple selling in respect of it is enough for the existence of zakat, even if the price of what he sells is less than the nisab because he must value the rest of his goods. This precondition is taken from his words:]
then you only have to pay one year's zakat on the proceeds of the goods whether these goods were in your possession for one year or more than one year before you sold them.
[To exclude the one who sells it for goods. He does not pay zakat.
5. The fifth precondition is that a year passes from the day the zakat was paid on the capital or he acquires it. He is silent about the precondition, which is that the basis of those goods be money by which he bought them. If it is less than the nisab or was by barter, even private property which he then he sells and uses to buy those goods for the sake of trade. If he sells them before the end of the year, there is no zakat on them until the year has passed.
Then he moves to speaking about the merchandise which has a constant turnover, which are goods which he buys for trade and sells without waiting not wait for a favourable market or a slack market like all owners of shops with a constant turnover. This is an exception to the previous statement.]
25.7d. The case of constant turnover
However, if you are a merchant with a constant turnover so that you never keep money or goods in your possession for any length of time then you should assess your goods every year and pay zakat on them and on whatever cash you have in hand at that time.
[He sells for current price and replaces it and does not wait for a good market to sell or a slack market to buy. Then you assess your goods of every category for what they are normally sold at that time time for a price equivalent to the common sale rather than the forced sale because the forced sale is at a great reduction. Brocade and similar cloth, like fine cotton garments, delicate cloth, and real estate, are assessed in gold, and coarse garments and daily wear are assessed in silver. He begins the assessment, i.e. the tax year, according to Ashhab from the day he begins to trade. Al-Baji said that it is from the day the zakat of the price is taken or from the day he has profit. After assessment, zakat is paid on the merchandise provided some have been sold, even a dirham. There is no difference between selling something at the beginning or the end of the year. When he does not sell anything or has a sale a month after the year, for instance, he assesses it at that point, and transfers his year to that month and voids the extra over the year. It is like that the one who deals in money if it is with him. It is like that with the zakat of his debt when it is immediately taken.]
Zakat is due on invested wealth when that wealth has been in your possession for one year.
[It would literally mean whether there was a nisab or not. That is the case in the well-known position. For example, he has a dinar which remains with him for 11 months. Then he buys goods with it which he sells after a month for 20. He pays zakat now, when he sells them after a month, relative ot the fact that it was with him for 11 months, and it becomes the second year when it is completed.]
[If he enters the zakatable level in the year, he pays for the entire year.]
Similarly zakat is due on the offspring of livestock if the mother animals have been in your possession for a year.
[The basis for that is the statement of 'Umar for them to count the lambs with their mothers but not to take them. The profit is like the lambs, and lambs include the male and female young sheep and young goats at the moment which they are born.]
If you have wealth on which zakat is due but you also have a debt of the same amount or one which will reduce your wealth to less than the amount on which zakat is due then you do not have to pay zakat.
[So i f you have 20 dirhams and owe a debt in goods, for instance, or food, livestock or something else, immediate or deferred, equal to the amount or one which will reduce it below the minimum on which zakat is due (as when he has 20 dirhams and owes half a dinar) there is no zakat in both cases. The apparent meaning of the words of the Shaykh is that the debt cancels zakat, even if it is the mahr of this wife who is in his care, and even more so if she is divorced and he owes her the mahr. It is the preferred from the two well-known positions. In the other well-known position, it is not cancelled.
Acording to the well-known position, the debt cancels zakat, even the debt of the zakat, as opposed to the debts of vows and expiations which do not cancel zakat. The difference is that the debt of zakat is sought by the just Imam, and zakat is taken, even by force, which is not the case with vows and expiations. Then there is an exception from that generality.]
If, however, you have other assets on which zakat is not due such as personal effects or slaves or domestic animals or private property which could be used to pay off your debt, then you do pay zakat on your wealth.
[This is when someone has wealth on which zakat is due and has a debt equal to it; or one which reduces the zakatable property. If he has goods like slaves, real estate, residences, garments, grains, dates and animals less than the nisab, or even if he has grains, dates or animals on which there is zakat, he puts that against the debt he owes and pays zakat. Real estate means that which has no lintels, like open land, houses is property with a lintel like houses. If the wealth on which zakat is not obliged of his personal goods is enough to discharge the debt, it is put opposite the debt he owes with the precondition that he has had it for a year. The year of everything is according to it. This applies to things that can be sold to settle the debt.]
If your assets are not sufficient to pay your debt, then you calculate the difference between the debt and your assets and subtract the difference from the wealth on which zakat is due. If there is still enough left for zakat to be due you must pay the zakat.
[It is assessed according to what is left. So if he has 30 dinars and owes 20 and has goods which could be sold for ten to settle the debt and has had them for a year, ten are be taken from the 30 and and put opposite the debt. What is meant is not acutal taking and giving since it is permitted to delay the term of the debt. So 20 remain free of the debt and zakat is paid on them.
Then he clarifies zakat which is not cancelled by debt.]
Debt does not, however, affect the obligation to pay zakat on grain, dates or livestock.
[Nor does it affect the zakat of mines or treasure. For instance, he may have some of these things and owe a debt which would absorb all he has. He still must pay zakat on it and the debt does not cancel what is due on it. The difference between that and money is that the sunna has come that the debt affects money. As for livestock and fruits, the Messenger of Allah and the khalifs after him sent assesors and agents and they estimated for the people and took the zakat of their livestock from them and did not ask whether they had a debt or not.
Similarly the debt does not cancel Zakat al-Fitr according to Ashhab, and it is the preferred position. According to 'Abdu'l-Wahhab it cancels it.]
You do not have to pay zakat on money which is owed to you until after you have received it and if the debt has been outstanding for a number of years you only pay one year's zakat on it after it is repaid.
[Whether it is money or goods, until he receives it, meaning the loan and unpaid sales when it is hoarded. An example of that is when he has some money and lends it to a man or buys goods with it and then sells it with a debt. It does not matter how many years pass: the zakat of its owner is due one year after it it received if it is the minimum or is added to money he has and it reaches the minimum. It is evident he pays for just one year, even if he delays it to evade zakat. Ibn al-Qasim said that if he leaves it to evade zakat, then he pays for the past years.]
This is the same as when you own goods. You only pay zakat on them after you have sold them.
[These are goods stored up for trade. They are the same as the debt since their source is money. He pays zakat for one year even if they remain for many years.]
If the debt owing to you on the goods has been inherited by you, you wait for one year after receiving payment before paying the zakat due.
[If there is an inheritance which he does not receive for some years, or the goods which he sells are from inheritance, i.e. he inherited goods and sells them but does not receive that price for some years, or the debt is from a gift or sadaqa in the possession of the giver or a brideprice in the hand of the husband or khul' which he pays, or the fine of a tort in the hand of the perpetuator or his guardian, there is no zakat on it except after a year from when he takes it, even if he delays it out of avoidance. If the gift remains in the possession of its giver before giving and taking for two years, there is no zakat on it for previous years from either the giver or receiver according to Sahnun because the ownership is clear when the recepient takes it on the day of the sadaqa and that is why he had its proceeds from the day it is given.]
Zakat must be paid on wealth belonging to minors whether it is in the form of money, crops or livestock.
[Based on what is in the Muwatta' from 'Abdu'r-Rahman ibn al-Qasim from his father. He said, "'A'isha used to look after me and one of my brothers in her house. We were orphans. She used to pay the zakat from our property." (17.6.13) In it 'Umar said, "Trade with the property of orphans and then it will not be eaten away by zakat." (17.6.12) The like of this is not stated out of opinion. The guardian of orphans does not pay zakat for them until the matter has been presented to the Imam or Qadi. The gist of the fiqh of the question is that what is considered is the school of the trustee because disposal depends on him and not on the school of the father of the children since he is dead and the property has moved on from him, nor the school of the child because he is not responsible for it. So the trustee does not pay its zakat if his school is that it is cancelled for the child. Zakat is also paid on the property of the insane.]
Zakat al-fitr must also be paid on their behalf.
Slaves, including those who are partially but not completely freed, do not have to pay zakat on any of these categories.
[Slaves of any category do not pat zakat. That applies to all the categories and to zakat al-Fitr.]
If they have been completely freed they do not pay zakat on any wealth in their possession until a whole year has passed from the day when they were freed.
[It is a precondition that they own it for a year: cash or livestock.]
No zakat is payable on slaves, servants, horses, your house nor on any private property or goods which are for your own personal use nor on jewellery which in regular use.
[There is no zakat on such property as indicated by the hadith in the two Sahih collections where the Prophet said, "There is no zakat owed by the Muslim on his slaves or horses." It is not due on jewellery which is worn by women even if it belongs to a man. From this it might be assumed that jewellery which is rented must have zakat paid on it. The evident text of the Mudawwana is that there is no zakat, and that is the accepted position. As for jewellery for the purpose of trade, there is zakat on it by consensus whether it belongs to a man or a woman, and its zakat is a year from the time when it is intended to trade in it. It is weighed every year and if it reaches the minimum, or he has gold and silver which will complete the nisab. ]
If you inherit or are given any goods or take any produce, on which zakat has already been paid, from your land and then sell any of these things, no zakat is due on the proceeds until a year has elapsed.
[The literal meaning of 'selling' is whether it is sold for money or on credit, and its literal meaning is also whether or not he leaves it to avoid zakat. 'Produce' is what is normally produced since its judgement is the same when it comes from land which is not his, as when he rents land and grows crops in it. So he pays zakat on it when the crop is produced, and it is like that if he did not pay zakat on it on. ]
Zakat is due on gold or silver extracted from mines as soon as the weight of gold amounts to twenty dinars or the weight of silver to five uqiyyas. One-fortieth must be paid on the day it is extracted.
[By his literal words, this would apply to nuggets found without mining or with little work. The famous well-known is that there is a fifth on mines and that fifth is paid to the Imam if he is just. Otherwise it is distributed to the poor Muslims. There is no zakat on mined things other than gold and silver - like lead, copper, iron, and arsenic. This zakat is due when it reaches the minimum weight. One-fortieth is due on that, not a fifth by the generality of the statement of the Prophet, "And there is no zakat on what is less than 5 awqiyyas." This implies that when there is five awqiyyas, there is zakat on it, and that includes ore. It is due the day it is extracted and the year is not a precondition for it. al-Aqfahasi said that the Shaykh means the year is not a precondition and he means after it is extracted because the obligation is only connected to it after it is extracted. It is one of two statements. The famous one is how al-Aqfashasi applied the Risala as meaning after extraction. So the obligation is connected to its mining and not its extraction.]
After this zakat is due on all gold and silver continuously extracted from the same deposit, however small the amount until such time as that deposit has been worked dry. If work is begun on another deposit, no zakat is due until the amount extracted reaches the amount on which zakat is due.
[This continuity is probably in obtaining and or work or in both together, and so there are three possiblities, and he prefers the first. When he begins a new work, then there is no zakat until the nisab is reached as was the first case. ]
Jizya is taken from the men of the people of dhimma status provided that they are both free and adult. It is not taken from their women, their children, or their slaves.
[Ibn Rushd defines it thus: what is taken from the people of disbelief in repayment for their security and sparing their lives while they remain unbelievers. It is derived from jaza' (repayment) which is exchange, because they receive security in exchange for the money they pay. We offer them security and they offer money. It is not taken from three categories: women, children and slaves because Allah Almighty has obliged it on those who can fight, and generally that is men rather than women and children.]
[The author implies that there are four preconditions for paying jizya: male, adulthood, freedom and disbelief. There is also a precondition that he mix socially with the people of his deen. Jizya is not taken from someone alone in a monastery or hermitage. It is a precondition that the unbeliever remain an unbeliever. It is not taken from the apostate because he is not confirmed in his disbelief. Sanity and the ability to pay it are two preconditions. It is not taken from the madman nor from the pauper who has nothing.]
It is taken from Magians and from Christian Arabs.
['Abdu'l-Wahhab said it applies to both Arabs and non-Arabs. He means universality by that to refute the one who opposes that.]
For people who use gold the jizya is four dinars and for people who use silver it is forty dirhams.
[This applies to people conquered by force who are people of the unbelievers whose lands have taken by force. It is like that for the people of truce who are unbelievers who protected their land by making peace in exchange for something which they paid of their property. If something particular is determined from them, it is taken, be it little or a lot. ]
It can be made less for people who are poor.
[It can be lessened for the poor according to what the Imam relates. If someone does not have the ability to pay something, it is cancelled for him. Ibn Habib said that it is not taken from the poor and al-Lakhmi recommended that.]
Those among them who are engaged in long-distance trading should pay one tenth of what they receive when they sell their goods even if they come and go several times in on year.
[Meaning the people of dhimma, men or women, free or slaves, or children. It is from a place where jizya is not paid to one where jizya is paid. Ibn al-Qasim said it is a tenth of the sale price. Ibn Habib said it is a tenth of what they bring, like the harbis. According to the position of Ibn al-Qasim, if they want to return before they buy or sell, it is not due from them. It is the evident meaning of the words here. According to the position of Ibn Habib, it is obliged on them. The source of the dispute is whether what is taken from them is connected to benefit or to arrival in the region. It is understood from the words that the tenth is not taken from them when they trade in their land, and that is the case. Then he continues about a tenth of the price which is taken even if they come and go several times in the year. Abu Hanifa and ash-Shafi'i say that it is only taken from them once a year. We have what 'Umar did. The use and judgement are repeated when the cause is repeated.]
If they are carrying food destined specifically for Makka or Madina only one-twentieth of what they sell it for should be taken.
[If the people of the dhimma carry food, meaning wheat and oil, or it is said that it means all food products. As for things other than food, like goods, the full tenth is taken from their price.]
A tenth is also levied from traders who come from Dar al-Harb (the land of war - beyond the frontiers of Islam)
[This is on what they bring whether they sell or not, and whether they sell in one land or all of the lands of Islam. It is the position of Ibn al-Qasim. His position was given about the people of dhimma that it is not taken from them until there is a sale. There is a difference between them is that the people of harb obtain security while they are in the land of Islam, and all lands of Islam are like one land. As for the people of dhimma, it is taken from them by their benefit and they are not forbidden our lands. So when their benefit is repeated, taking from them is repeated. The apparent meaning of the words of the shaykh is that the tenth is not decreased, even if the Imam thinks that should be done. That is that position of Malik and Ashhab. In short, if it before alighting, an agreement can be made with them for more than a tenth. If it is after they camp, only a tenth is taken from them. Ibn al-Qasim said, "It is taken from them according to the opinion of the ruler." There may be stipulation for more than that when a safe conduct has been previously agreed.]
unless they have agreed to terms demanding more than that.
[It is permitted to take the greater amount which is stipulated. Ibn Naji said: they cannot sell wine to a Muslim by agreement. The well-known postion is that they are able to sell it to others. There is the text of the words of Ibn 'Umar, "When they bring wine and pigs and there are people of dhimma who buy that from them,they are left, and the tenth is taken from them after selling. If there is no one there to buy that from them, they return with it and are not allowed to to import it.]
If someone comes upon treasure (rikaz) that was buried in the time of the Jahiliyya (before Islam)
[Ibn Habib added in al-Wadiha that it is (rikaz) in particular. Kanz is applied to what was buried in the Jahiliyya and buried in Islam. There is disagreement about whether it is particular to gold and silver or general, including other things like pearls, copper and lead. There are two positions reported by Malik. The author of the Mukhtasar confines himself to the second, and says that it is applied to treasure-trove. If he doubts whether it is jahili or not, then the signs are studied. If there are none, that was mostly done by them. Al-Fakhani said it is known to be part of the school which Malik preferred it. Ibn al-Qasim reported that it is particular to gold and silver and its judgment is obliged on it.]
he must pay the fifth.
[The apparent meaning would be even if it is less than the minimum, and this is the case in the well-known position because the Prophet said, "There is a fifth on treasure" and that is general to a lot and a little. It is also clear that Islam and freedom are not preconditions. It also appears that there is a fifth in it, even if it is found by a lot of expense or work in extracting it. There is zakat on it according to what is in the Mudawwana and Muwatta'.
It also appears that it is absolutely belongs to the one who finds it. Ibn 'Umar affirmed that, but that is not always the case. If it is found in the wilds of the land of Islam, it belongs to its finder. If he finds in it in someone's property, then it is his by agreement. This is the judgement of treasure.
As for what the sea throws up to the shore, like amber, pearls and other jewellry which he finds, they belong to the one who finds them and there is no fifth. Al-Fakhani said unless prior protected ownership is proven by a Muslim or dhimmi. There are two statements: Ibn al-Qasim heard that someone who discards his goods out of fear of drowning takes them from the one who appropriated them. It is like that what he leaves due to constriction and is unable to take. There are two positions.]
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