Chapter 59. Book of Preconditions

I: Preconditions, provisions and contracts which are permitted in Islam

2564. It is related from Marwan and al-Miswar ibn Makhrama from the Companions of the Messenger of Allah, "When Suhayl ibn 'Amr wrote out the document on that day, one of the preconditions which Suhayl ibn 'Amr stipulated from the Prophet, may Allah bless him and grant him peace, was: "If anyone comes to you, even if he has your deen, you will return him to us and not come between us and him.' The believers disliked that and resented it. Suhayl refused to accept anything but that, so the Prophet, may Allah bless him and grant him peace, wrote it with him on that basis. On that day he returned Abu Jandal to his father, Suhayl ibn 'Amr. In that period he returned any man who came to him, even if he was a Muslim. Believing women came as emigrants, and Umm Kulthum bint 'Uqba ibn Abi Mu'ayt was one of those who came to them on that day.She was a young girl. Her people came to ask the Prophet, may Allah bless him and grant him peace, to return her to them, but he did not return her to them since Allah had revealed about them, 'When believing women come to you as emigrants, submit them to a test. Allah has best knowledge of their faith. If you know they are believers, do not return them to the rejectors.They are not lawful for the rejectors nor are the rejectors lawful for them.' (60:10)"

'Urwa reported from 'A'isha that the Messenger of Allah, may Allah bless him and grant him peace, used to examine them based on this ayat, "O you who believe! When believing women come to you as emigrants, submit them to a test. ... to ...Ever-Forgiving, Most Merciful." (60:10-12)

'A'isha said, "When any of them acknowledged this precondition, the Messenger of Allah, may Allah bless him and grant him peace, would say to her, 'I have taken a contract of allegiance from you.' These are the words he used to say and, by Allah, he never touched the hand of a woman in the contract of allegiance, and he only made the contract of allegiance with them by his words."

2565. It is related that Jarir was heard to say, "I offered allegiance to the Messenger of Allah, may Allah bless him and grant him peace, and he imposed a condition on me: 'Give good counsel to every Muslim.'"

2566. It is related that Jarir ibn 'Abdullah said, "I offered allegiance to the Messenger of Allah, may Allah bless him and grant him peace, on the condition that I would perform the prayer, pay the zakat, and offer sincere counsel to every Muslim."

II: When palm-trees are sold after they have been pollinated

2567. It is related from 'Abdullah ibn 'Umar that the Messenger of Allah, may Allah bless him and grant him peace, said, "If someone sells palm-trees which have been pollinated, their fruits belong to the seller unless the buyer makes a stipulation about their inclusion."

III: Preconditions in sales

2568. It is related that 'A'isha reported that Barira came to her to seek her help in her freedom-contract (kitaba) and she had not paid any of her kitaba. 'A'isha said to her, "Go back to your people. If they like, I will pay off your kitaba for you and your wala' will then belong to me. I will do that.' Barira mentioned that to her people, but they rejected it. They said, "If she wishes to do it seeking a reward for you, let her do it and your wala' will belong to us." She mentioned that to the Messenger of Allah, may Allah bless him and grant him peace, and he said to her, "Buy her and set her free. The wala' belongs to the one who sets free."

IV: When a seller makes a condition of having the use of the animal's back to a certain place, that is permitted

2569. It is related from Jabir that he was travelling on a camel of his which had become tired. "The Prophet, may Allah bless him and grant him peace, passed and struck it and made supplication for it. Then it travelled in an unparalleled manner. Then he said, 'Sell it for an awqiyya.' I said, 'No.' Then he said, 'Sell it for an awqiyya.' So I sold it to him and I made a condition that it carry me to my family. When we reached Madina, I brought him the camel and he paid me its price and then I left. He sent after me: 'I will not take your camel. Take your camel, That is a gift for you.'"

Jabir said, "The Messenger of Allah, may Allah bless him and grant him peace, let me use its back to ride back to Madina."

Mughira reported: "I sold it provided that I could use its back until I reached Madina."

'Ata' and others have, "You have its back as far as Madina."

From Jabir, "The precondition of using its back to Madina."

From Jabir, "You have its back until you return."

From Jabir, "We let you use its back as far as Madina."

From Jabir, "Use it to reach your family."

From Jabir, "The Prophet, may Allah bless him and grant him peace, bought it for an awqiyya."

Zayd ibn Aslam corroborates it from Jabir. Ibn Jurayj said from 'Ata' and others from Jabir, "Take it for four dinars." This is an awiqyya when the dinar is reckoned as ten dirhams. Mughira from ash-Sha'bi did not make its price clear from Jabir, nor Ibn al-Munkadir and Abu'z-Zubayr from Jabir.

From Jabir is, "An awqiyya of gold."

From Jabir is, "A hundred dirhams."

From Jabir, "He bought it on the road to Tabuk." I think that he said, 'For four awqiyyas."

From Jabir, "He bought it for ten dinars."

"The words of ash-Sha'bi about it being for an awqiyya is in most and the precondition is more frequent and I consider it to be sounder." Abu 'Abdullah said that.

V: Preconditions in transactions

2570. It is related that Abu Hurayra said, "The Ansar said to the Prophet, 'Divide the date-palms between us and our brothers.' He said, 'No.' The Ansar said, 'Look after them and we will share the fruits with you.' They [the Muhajirun] said, 'We hear and obey.'"

2571. It is related that 'Abdullah ibn 'Umar said, "The Messenger of Allah, may Allah bless him and grant him peace, gave Khaybar to the Jews provided that they work it and cultivate it. [In return,] they were to receive half of what it produced."

VI: Preconditions about the bride-price in the marriage contract

'Umar said, "Rights are limited by preconditions, and you have what you stipulate."

Al-Miswar said, "I heard the Prophet, may Allah bless him and grant him peace, mention his son-in-law and he praised him as an in-law and said he was good. He said, 'When he spoke to me, he spoke the truth to me. When he made me a promise, he kept it.'"

2572. It is related that 'Uqba ibn 'Amir said that the Messenger of Allah, may Allah bless him and grant him peace, said, "The most binding of the preconditions which you should fulfil are those by which private parts are made lawful."

[Meaning the preconditions stipulated in a marriage contract.]

VII: Preconditions in share-cropping

2573. It is related that Rafi' ibn Khadij was heard to say, "Among the Ansar, we had the most fields. We used to rent the land. Sometimes that land would produce and sometimes it would not produce, so we were forbidden to do that, but not forbidden from [letting] it for silver."

VIII: Preconditions which are not permitted in marriage

2574. It is related that Abu Hurayra said, "The Messenger of Allah, may Allah bless him and grant him peace, forbade townsmen selling on behalf of men of the desert, and [said] 'Do not bid against each other, bidding to raise the price. A man should not increase a bid to override the sale of his brother nor make a marriage proposal overriding the proposal of his brother. A woman should not ask for the divorce of her sister so that she can get hold of what her sister possesses."

IX: Preconditions which are not permitted in hudud

2575. It is related that Abu Hurayra and Zayd ibn Khalif al-Juhani said, "A bedouin man came to the Messenger of Allah, may Allah bless him and grant him peace, and said, 'Messenger of Allah, I ask you by Allah, to judge for me by the Book of Allah.' The other opponent, who had more understanding than him, stood up and said, 'Yes, judge between us by the Book of Allah. Give me permission to speak.' The Messenger of Allah, may Allah bless him and grant him peace, said, 'Speak.' He said, 'My son works for this man and committed fornication with his wife. I was told that my son must be stoned, and so I ransomed my son with a hundred sheep and a slave-girl. Then I asked the people of knowledge and they informed me, "Your son must receive a hundred lashes and be exiled for a year and this woman must be stoned."' The Messenger of Allah, may Allah bless him and grant him peace, said, 'My the One in whose hand is my soul, I will judge between the two of you by the Book of Allah. The slave-girl and sheep must be returned and your son must receive a hundred lashes and be exiled for a year. Unays, go to the wife of this man and if she confesses, stone her.'" He said, "He went to her and she confessed and the Messenger of Allah, may Allah bless him and grant him peace, commanded that she be stoned."

X: Conditions permitted in the mukatab if he agrees to be sold provided that he will be set free

2576. It is related that 'A'isha said, "Barira came to me while she was a mukataba and said, 'Umm al-Mu'minin, buy me. My people are going to sell me, and you can free me.'" She said, "Yes." Barira went on, "My people will only sell me on the condition that they keep my wala'." She said, "I have no need of you." The Prophet, may Allah bless him and grant him peace, heard that - or it reached him - and he said, "What is the problem of Barira?" He said, "Buy her and set her free and give them the condition they want." She said, "I bought her and set her free and gave her people the condition of her wala'." The Prophet, may Allah bless him and grant him peace, said, "The wala' belongs to the one who sets free, even if a hundred preconditions are made."

XI: Preconditions in divorce

Ibn al-Musayyab, al-Hasan and 'Ata' said, "If he mentions the divorce first or afterwards, he must abide by the condition he made."

[i.e. When he says something like, "If you enter the house, you are divorced" or "You are divorced if you enter the house."]

2577. It is related that Abu Hurayra said, "The Prophet, may Allah bless him and grant him peace, forbade meeting caravans, a Muhajir selling on behalf of a man of the desert, a woman making a precondition of the divorce of her sister, a man overbidding the sale of his brother, and he forbade bidding against one another to raise the price and also leaving animals unmilked [for days to make it appear that the animal has a lot of milk]."

It was corroborated by Mu'adh and 'Abdu's-Samad from Shu'ba. Ghundar and 'Abdu'r-Rahman said, "It is prohibited (passive tense)." Adam said, "We were forbidden." An-Nadr and Hajjaj ibn Minhal said, "He forbade."

XII: Verbal preconditions with people

2578. It is related that Ubayy ibn Ka'b said, "The Messenger of Allah, may Allah bless him and grant him peace, said, 'Musa is the Messenger of Allah,' and he mentioned the hadith and where [al-Khidr] said, 'Did I not say that you would not be able to bear with me?' (18:72) The first time [he did that] was due to forgetfulness; the second time he made a precondition, and the third time was deliberate. He said, 'Do not take me to task because I forgot. Do not demand of me something too difficult'; So they continued until they met a youngster whom he killed. ... So they continued . . .They found a wall there about to fall down and he built it up.' (18:73-77)" Ibn 'Abbas recited it [in a shadhdh reading], "Before them was a king."

XIII: Preconditions in the wala'

2579. It is related that 'A'isha said, "Barira came to me and said, 'My people have given me a freedom-contract (kitaba) for nine awqiyas, one awqiya per year. Can you help me?' She said, 'If your people like, I will count it out for them (in full) and your wala' will then belong to me. I will do that.' Barira went to her people, told them but they rejected it. She came from them when the Messenger of Allah, may Allah bless him and grant him peace, was sitting there. She said, 'I proposed that to them and they refused unless they can keep the wala'.' The Prophet, may Allah bless him and grant him peace, was listening and 'A'isha told the Prophet, may Allah bless him and grant him peace, all about it. He said, 'Take her and give them their precondition of keeping the wala'. But the wala' belongs to the one who sets someone free.' 'A'isha did that and then the Messenger of Allah, may Allah bless him and grant him peace, stood up among the people and praised and glorified Allah and then said, 'Why is it that some men make conditions which are not found in the Book of Allah? Any condition which is not in the Book of Allah is invalid even if it is stipulated a hundred times. The decision of Allah is more binding and the condition of Allah is firmer. The wala' belongs to the one who sets someone free.'"

XIV: When a precondition is made in the sharecropping: "If I wish, I can expel you"

2580. It is related that Ibn 'Umar said, "When the people of Khaybar dislocated the joints of 'Abdullah ibn 'Umar, 'Umar stood up to speak and said, 'The Messenger of Allah, may Allah bless him and grant him peace, employed the Jews of Khaybar to work their property and said, "We confirm you as long as Allah confirms you." 'Abdullah ibn 'Umar went out to his property there and they attacked him in the night and dislocated its hands and feet. You have no enemy there but them and they are our enemies and those whom we suspect. I think that they should be expelled.' When 'Umar had decided on that, one of the Banu Abu'l-Huqayq came and said, 'Amir al-Mu'minin! Will you expel us when Muhammad, may Allah bless him and grant him peace, confirmed us and employed us over property and granted us that condition [of residing there]?' 'Umar said, 'Do you think that I have forgotten what the Messenger of Allah, may Allah bless him and grant him peace, said? "How will it be for you when you are expelled from Khaybar and your she-camel will travel with you night after night?"' He said, 'That was a little joke from Abu'l-Qasim.' He said, 'You lie, enemy of Allah!' So 'Umar expelled them and gave them the price of the fruits they had in money, camels, and goods in the forms of camel saddles and ropes, etc."

Another isnad from 'Umar from the Prophet, may Allah bless him and grant him peace, in summary.

XV: Conditions in jihad and making peace with the people of war, and writing down the conditions

2581. It is related from al-Miswar ibn Makhrama and Marwan, the hadith of each supporting the other's, who said, "The Messenger of Allah, may Allah bless him and grant him peace, set out at the time of al-Hudaybiyya. When they had gone part of the way, the Prophet, may Allah bless him and grant him peace, said, 'Khalid ibn al-Walid is at al-Ghamim with the vanguard of the Quraysh cavalry, so go to the right.' By Allah, Khalid was not aware of them until the dust of the army appeared. Then he galloped back to warn Quraysh. The Prophet, may Allah bless him and grant him peace, proceeded until he was at ath-Thaniyya from where they could go down to them and then his camel knelt with him. The people said, 'Go! go!' It stayed put. They said, 'Al-Qaswa' has become headstrong. Al-Qaswa' has become headstrong.' The Prophet, may Allah bless him and grant him peace, said, 'Al-Qaswa' is not headstrong, and that is not her nature. But the One who held back the Elephant has held her back. Then he said, 'By the One in whose hand is my soul, if they ask for anything by which they show respect for the sacred things of Allah, I will grant it to them.' Then he scolded the camel and she got up."

He said, "He turned aside from them until he stopped at the furthest part of al-Hudaybiyya at a pit containing a small amount of water. The people kept taking small amounts from it, and they did not leave it until there was none of it left. So the people complained of thirst to the Messenger of Allah, may Allah bless him and grant him peace. He removed an arrow from his quiver and then commanded that they put it in the pit. By Allah, it continued to flow for them and quench their thirst until they left it. While they were like that, Budayl ibn Warqa' al-Khuza'i arrived with a group of people from Khuza'a. They were the confidents and advisors of the Messenger of Allah from the people of Tihama. Budayl said, 'I left Ka'b ibn Lu'ayy and 'Amir ibn Lu'ayy who have camped at the water-holes of al-Hudaybiyya. They have milk camels and camels with young with them. They will fight you and bar you from the House.'

"'The Messenger of Allah, may Allah bless him and grant him peace, said, 'We did not come to fight anyone, but we came to perform 'umra. War has weakened Quraysh and caused them harm, so if they wish, I will conclude a truce with them in which they will leave me and the people alone. If I am victorious, then they can enter what people have entered if they so wish. Or, if not, they will have had a respite from war. If they refuse, then, by the One in whose hand my soul is, I will fight them for the sake of this business of mine until I am killed. Let Allah carry out His command.' Budayl said, 'I will convey to them what you say.'"

He said, "He went until he came to Quraysh and said, 'We have come to you from this man and we have heard what he said. If you wish us to present it to you, we will do so.' Their foolish ones said, 'We have no need for you to inform us of anything!' Those of them with good sense said, 'Tell us what you heard him say.' He said, 'I heard him say such-and-such, and such-and-such,' and he recounted to them what the Prophet, may Allah bless him and grant him peace, had said. 'Urwa ibn Mas'ud got up and said, 'O people! Are you not like a father [to me]?' They answered, 'Yes, indeed.' He said, 'Am I not like a son [to you]?' They answerted, 'Yes indeed.' He said, 'Do you suspect me at all?' They answerted, 'No.' He said, 'Do you not know that I summoned for war the people of 'Ukaz, and when they refused me, I came to you with my family and children and those who obeyed me?' They replied, 'Yes indeed.' He said, 'This man has offered you a sensible plan. Accept it and let me go to him.' They said, 'Go to him.' He went to him and began to speak to the Prophet, may Allah bless him and grant him peace. The Prophet, may Allah bless him and grant him peace, said the like of what he had said to Budayl. At that 'Urwa said, 'O Muhammad, do you mean to eradicate your people? Have you heard of anyone of the Arabs who eradicated his people before you? If the other happens, by Allah, I do not see notables here, but rather I see a motley lot of people who will actually flee and desert you.' Abu Bakr said to him, 'Suck al-Lat's nipples! Would we flee from him and desert him!' He asked, 'Who is this?' They said, 'Abu Bakr.' He said, 'By the One who has my soul in His hand, were it not for a favour I owe you and for which I have not repaid you, I would have answered you back!'"

He said, "He began to talk to the Prophet, may Allah bless him and grant him peace, and when he talked, he took hold of his beard. Al-Mughira ibn Shu'ba was standing by the head of the Prophet, may Allah bless him and grant him peace, with a sword and wearing a helmet. Whenever 'Urwa reached his hand toward the beard of the Prophet, may Allah bless him and grant him peace, he would strike his hand with the hilt of the sword. He said to him, 'Keep your hand away from the beard of the Messenger of Allah, may Allah bless him and grant him peace!' 'Urwa lifted his head and asked, 'Who is this?' They replied, 'Al-Mughira ibn Shu'ba.' He said, 'Treacherous one! Am I not striving [to remedy] your treachery?' Al-Mughira had accompanied some people in the Jahiliyya and then killed them and took their money. Then he came [to Madina] and became Muslim. The Prophet, may Allah bless him and grant him peace, said, 'As for his Islam, I accept it. As for the money, I will have nothing to do with it.'

"Then 'Urwa began to scan the Companions of the Messenger of Allah, may Allah bless him and grant him peace, with his eyes. He said, 'By Allah, the Messenger of Allah, may Allah bless him and grant him peace, would not spit but that it landed in the palm of one of their men and he would rub his hand and skin with it. If he gave a command, they hastened to do it. When he did wudu', they would practically fight over his left-over wudu' water. When they spoke, they lowered their voices in his presence and none of them would fix his gaze on him out of respect for him.' 'Urwa returned to his companions and said, 'O people! By Allah, I have visited kings, and I have visited Caesar, Chosroes and the Negus, and by Allah, I have not seen a king whose people respect him as the Companions of Muhammad respect Muhammad. He would not spit but that it landed in the palm of one of their men and he would rub his hand and skin with it. If he gave a command, they hastened to do it. When he did wudu', they would practically fight over his left-over wudu' water. When they spoke, they lowered their voices in his presence and none of them would fix his gaze on him out of respect for him. By Allah, he has offered you a sensible plan, so accept it.'

"A man of the Banu Kinana said, 'Let me go to him.' They said, 'Go to him.' When he was in sight of the Prophet, may Allah bless him and grant him peace, and his Companions, the Messenger of Allah, may Allah bless him and grant him peace, said, 'This is so-and-so. He is one of the people who have esteem for sacrificial camels. Drive them in front of him.' They were driven in front of him and the people met him saying the talbiya. When he saw that, he said, 'Glory be to Allah! It is not proper to bar these people from the House!' When he returned to his companions, he said, 'I have seen the sacrificial camels which are garlanded and marked. I do not think that these people should be barred from the House.'

"A man among them called Mikraz ibn Hafs caught up and said, 'Let me go to him.' They said, 'Go to him.' When he was in sight of them, the Prophet, may Allah bless him and grant him peace, said, 'This is Mikraz. He is a shameless man.' He began to speak to the Prophet, may Allah bless him and grant him peace, and while he was speaking to him, Suhayl ibn 'Amr arrived."

Ma'mar related from Ayyub from 'Ikrima, "When Suhayl ibn 'Amr came, the Prophet, may Allah bless him and grant him peace, said, 'Your business has become easy for you.'" Ma'mar said that az-Zuhri said in his hadith, "Suhayl ibn 'Amr came and said, 'Write a document between us and you.' So the Prophet, may Allah bless him and grant him peace, summoned the scribe and the Prophet, may Allah bless him and grant him peace, said, 'In the name of Allah, the All-Merciful, the Most Mericful.' Suhayl said, 'By Allah, I do not know what "the All-Merciful" is. Rather write, "In Your name, O Allah," as you used to write.' The Muslims said, 'By Allah, we will only write, "In the name of Allah, the All-Merciful, the Most Merciful!"' The Prophet, may Allah bless him and grant him peace, said, 'Write: 'In Your name, O Allah."' Then he said, 'This is what Muhammad, the Messenger of Allah, has agreed." Suhayl said, 'By Allah, if we had known that you were the Messenger of Allah, we would not have barred you from the House nor fought you. Rather write: "Muhammad son of 'Abdullah."' The Messenger of Allah, may Allah bless him and grant him peace, said, 'By Allah, I am the Messenger of Allah, even if you deny me. Write: "Muhammad son of 'Abdullah."''

Az-Zuhri said, "That was because of his words, 'If they ask for anything by which they show respect for the sacred things of Allah, I will grant it to them.'"

"The Prophet, may Allah bless him and grant him peace, said to him, "On condition that you let us go to the House and do tawaf of it.' Suhayl said, 'By Allah, the Arabs will not say of us that we were forced to submit. Rather that will that place in the coming year.' So he wrote. Suhayl said, 'On the condition that if any of our men comes to you, even if he has your religion, you will return him to us.' The Muslims said, 'Glory be to Allah! How can someone who has come as a Muslim be returned to the idolaters!' At that moment Abu Jandal ibn Suhayl ibn 'Amr arrived dragging his chains, having left the bottom part of Makka. He then threw himself down in the midst of the Muslims. Suhayl said, 'This, O Muhammad, is the first term of the agreement with you - that you return him to me.' The Prophet, may Allah bless him and grant him peace, said, 'We have not finished the document yet.' He said, 'By Allah, I will not make peace with you on any conditions ever!' The Prophet, may Allah bless him and grant him peace, said, 'Endorse it for me.' He said, 'I will not endorse it for you.' He said, 'Do it.' He said, 'I will not do it.' Mikraz said, 'We endorse it for you.' Abu Jandal said, 'O company of Muslims! Am I to be returned to the idolaters when I have come as a Muslim! Do you not see what I have suffered?' He had been severely tortured for Allah."

He said, "'Umar ibn al-Khattab said, 'I went to the Prophet of Allah, may Allah bless him and grant him peace, and said, 'Are you not truly the Prophet of Allah?' He replied, 'Yes indeed.' I said, Do we not have the truth while our enemy have the false?' He answered, 'Yes indeed.' I said, 'Then why do we concede humbleness in our deen?' He said, 'I am the Messenger of Allah and I do not disobey Him. He will make me victorious.' I asked, 'Did you not tell us that we would go to the House and do tawaf of it?' He said, 'Yes, but did I inform you that we would go to it this year?'" 'I said, 'No.' He said, 'You will go to it and do tawaf of it.'"

'Umar said, "I went to Abu Bakr and said, 'O Abu Bakr! Is this one not truly the Prophet of Allah?' He replied, 'Certainly.' I asked, 'Do we not have the truth while our enemy has the false?' He replied, 'Yes indeed.' I said, 'Then why do we concede humbleness in our deen?' He said, 'O man! He is the Messenger of Allah, may Allah bless him and grant him peace, and does not disobey his Lord and He will help him to victory. Hold to his command. By Allah, he is based on the truth' I said, 'Did he not tell us that we would go to the House and do tawaf of it?' He said, 'Yes, but did he inform you that we would go to it this year?' I said, 'No.' He said, 'You will go to it and do tawaf of it.'"

Az-Zuhri said, "'Umar said, 'I did many good deeds to make up for that.'

He said, "When the agreeing on the document was finished, the Messenger of Allah, may Allah bless him and grant him peace, said to his Companions, 'Get up and sacrifice and then shave your heads.'" He said, "By Allah, not a man of them got up until he had said that three times. When none of them got up, he went to Umm Salama and mentioned to her what he had encountered from the people. Umm Salama said, 'O Prophet of Allah, do you want that done? Then go out without saying a word to anyone until you have sacrificed your camels and then summon your barber and have him shave your head.' So he went out without speaking to anyone until he had done that. He sacrificed his camels and summoned his barber who shaved his head. When they saw that, they got up and slaughtered their camels and shaved one another's heads so that they were practically fighting one out of sorrow. Then some believing women came to him, and Allah Almighty sent down: 'O you who believe! When believing women come to you as emigrants, submit them to a test- to - Do not hold to any marriage ties with women who reject." (60:10) On that day 'Umar divorced two wives of his who were idolaters. Mu'awiya ibn Abi Sufyan married one of them and Safwan ibn Umayya married the other.

"When the Messenger of Allah, may Allah bless him and grant him peace, returned to Madina. Abu Basir, a man of Quryash who was a Muslim, came to him. They (the Makkans] sent two men to fetch him and they said, 'In accordance with the treaty which you have given us.' So he handed him over to the two men. They took him as far as Dhu'l-Hulayfa and there they stopped to eat some dates which they had. Abu Basir said to one of the two men, 'By Allah, O so-and-so, I see that this sword of yours is excellent!' The other unsheathed it and said, 'Yes indeed. By Allah, it is excellent! I have tested it and tested it again.' Abu Basir said, 'Let me have a look at it.' So he gave it to him, and Abu Basir struck him until he was stone dead. The other man fled until he reached Madina and entered the mosque running. When the Messenger of Allah, may Allah bless him and grant him peace, saw him, he said, 'I see this man is terrified.' When he reached the Prophet, may Allah bless him and grant him peace, he said, 'By Allah, he has killed my companion, and would have killed me as well!' Abu Basir came and said, 'Prophet of Allah, by Allah, Allah has let you fulfil your agreement. You returned me to them. Then Allah saved me from them.' The Prophet, may Allah bless him and grant him peace, said, 'Woe to his mother! What a war-sparker if only he had supporters!' When [Abu Basir] heard that, he knew that he would return him to them again, so he went out until he came the coast of the sea."

He said, "Abu Jandal ibn Suhayl got free of them and joined Abu Basir. Whenever a man of Quraysh became Muslim, he would only go out and join Abu Basir until there were a band of them together. By Allah, whenever they heard about a caravan belonging to Quraysh leaving for Syria, they would stop it and kill them and take their property. So Quraysh sent to the Prophet, may Allah bless him and grant him peace, entreating him by Allah and kinship to send word [to Abu Basir] and that whoever came to him [the Prophet] would be safe. So the Prophet, may Allah bless him and grant him peace, sent word to them and Allah Almighty sent down, 'It is He who held their hands back from you, and your hands from them in the valley of Makka, after giving you the upper hand over them. Allah sees what you do... to ... the fanatical rage of the Days of Ignorance .' (48:24-26) Their fanatical rage was that they did not affirm that he was the Prophet of Allah and did not affirm, 'In the name of Allah, the All-Merciful, the Most Merciful,' and prevented them from reaching the House."

Abu 'Abdullah said, "Ma'arra is the cause of the scabies, tazayyalu means "to distinguish". The zeal of people is making protection inviolable. 'I defended the protected place so that it would not be entered.'"

2582. It is reported from 'A'isha that the Messenger of Allah, may Allah bless him and grant him peace, used to test the women. It has also reached us that when Allah Almighty sent down that they should return to the idolaters what they had spent on those of their wives who had emigrated and judged that the Muslims should not keep guardianship of unbelieving women, 'Umar divorced two wives, Qurayba bint Abi Umayya and the daughter of Jarwal al-Khuza'i. Mu'awiya married Qurayba and Abu Jahm married the other woman. When the unbelievers refused to agree to pay what the Muslims had spent on their wives, Allah Almighty sent down, "If any of your wives rejoin the unbelievers, you should have compensation. So repay to those whose wives have gone the dowry they paid out." (60:11) 'Aqb is what the Muslims paid [of dowry] to the unbeliever whose wife had emigrated. He commanded that a Muslim whose wife had departed be paid what he had spent out of the dowry of the wives of the unbelievers who had emigrated. We do not know of any of the women who emigrated who apostasised after she had believed.

It reached us that Abu Basir ibn Asid ath-Thaqafi came to the Prophet, may Allah bless him and grant him peace, as a believing emigrant during the truce. Al-Akhnas ibn Shariq wrote to the Prophet, may Allah bless him and grant him peace, asking him for Abu Basir - and he mentioned the hadith.

XVI: Preconditions in loans

2583. It is related from Abu Hurayra that the Messenger of Allah, may Allah bless him and grant him peace, mentioned a man who had asked one of the tribe of Israel to lend him a thousand dinars and he gave it to him for a specified term."

Ibn 'Umar and 'Ata' said, "It is permitted to stipulate a specific term in a loan."

XVII: The mukatab, and preconditions which are contrary to the Book of Allah are not lawful

Jabir ibn 'Abdullah said in respect of a mukatab that there can be preconditions to which all parties agree.

Ibn 'Umar or 'Umar said, "Every precondition which is contrary to the Book of Allah is invalid, even if a hundred such preconditions are made."

Abu 'Abdullah said, "It is said that  it is reported from both of them: 'Umar and Ibn 'Umar."

2584. It is related that 'A'isha said that Barira came to her to ask her for help in her kitaba. She said, "If you like, I will pay your people and the wala' will be mine." When the Messenger of Allah, may Allah bless him and grant him peace, came, she mentioned that and the Prophet, may Allah bless him and grant him peace, said, "Buy her and set her free. The wala' belongs to the one who sets free." Then the Messenger of Allah, may Allah bless him and grant him peace, stood up on the minbar and said, "Why is it that some men make conditions which are not in the Book of Allah? Any condition which is not in the Book of Allah is invalid even if it is stipulated a hundred times."

XVIII: Preconditions which are permitted and exemptions made in the settlement. Preconditions which are common between people. When someone says, "A hundred less one or two."

Ibn Sirin said that a man said to his hirer, "Prepare your riding animal. If I do not travel with you on such-and-such a day, then you will have a hundred dirhams." He did not leave. Shurayh said, "If someone imposes a condition on himself of his own free well without being forced, it remains binding on him."

Ayyub reported from Ibn Sirin that a man sold some food and the buyer said, "If I do not come to you on Wednesday, there is no sale between you and me." The buyer did not come, so Shurayh said to the buyer, "You have broken your promise," and gave judgement against him.

2585. It is related from Abu Hurayra that the Messenger of Allah, may Allah bless him and grant him peace, said, "Allah has ninety-nine names, a hundred less one. Whoever knows them all will enter the Garden."

XIX: Preconditions in waqfs

2586. It is related from Ibn 'Umar that 'Umar ibn al-Khattab got some land in Khaybar and he went to the Prophet, may Allah bless him and grant him peace, to ask for his advice about it. He said, "O Messenger of Allah, I have got some land in Khaybar, and I have no property more precious to me than it. What do you command about it?" He said, "If you wish, you can make its capital a waqf and you can give its proceeds as sadaqa." He said, "'Umar gave it as sadaqa provided that it would not be sold or given away or inherited. Its proceeds would be given in sadaqa to the poor, relatives, freeing slaves, in the Way of Allah, for travellers, and guests. The trustee does nothing wrong if he consumes some of it in a correct and reasonable manner and feeds people without storing up."

He said, "Ibn Sirin related it and said that with the expression, 'without amassing wealth'."

Chapter 60. Book of Wills

I: Wills and the words of the Prophet, may Allah bless him and grant him peace, "The written will of a man should be with him."

The words of Allah Almighty, "It is prescribed for you, when death approaches one of you and if he has some goods to leave, to make a will in favour of his parents and relatives, correctly and fairly: a duty for all godfearing people. Then if anyone alters it after hearing it, the crime is on the part of those who alter it. Allah is All-Hearing, All-Knowing. But if someone fears bias or wrongdoing on the part of the person making the will, and puts things right between the people involved, in that case he has not committed any crime. Allah is Ever-Forgiving, Most Merciful." (2:180-182) Janaf means partiality. Mutajânif (5:3) means partial.

2587. It is related from 'Abdullah ibn 'Umar that the Messenger of Allah, may Allah bless him and grant him peace, said, "It is not proper for a Muslim man who has anything to bequeath to spend two nights with having a written will in his possession."

Muhammad ibn Muslim corroborated it from 'Amr from Ibn 'Umar from the Prophet, may Allah bless him and grant him peace.

2588. It is related from 'Amr ibn al-Harith, the brother-in-law of the Messenger of Allah, the brother of Juwayriya bint al-Harith, "When the Messenger of Allah, may Allah bless him and grant him peace, died, he left neither dirham nor dinar nor slave nor slavegirl nor anything other than his white mule which he used to ride, his weapons, and some land that he made sadaqa for travellers."

2589. It is related from Talha ibn Musarrif, "I asked 'Abdullah ibn Abi Awfa whether the Prophet, may Allah bless him and grant him peace, made a will. He answered, 'No.' I asked, 'So how was the will prescribed for people (or were they prescribed to make the will)?' He replied, 'He bequeathed the Book of Allah.'"

2590. It is related from al-Aswad that it was mentioned in the presence of 'A'isha that 'Ali was appointed by will. She said, "When did he appoint him? He was resting against my chest (or she said, "in my lap") and called for a basin and then he went limp in my lap and I was not aware that he had died, so when did he appoint him?"

II: It is better to leave one heirs wealthy than to make them beg from people

2591. It is related that Sa'd ibn Abi Waqqas said, "The Prophet, may Allah bless him and grant him peace, came to visit me when I was ill in Makka - (and he did not like to die in the land from which he had emigrated) - and said he said, 'May Allah have mercy on Ibn 'Afra'.' I said, 'Messenger of Allah, can I will away all my property?' He said, 'No.' I asked, 'A half?' 'No,' he answered. I said, 'A third?' He said, 'A third, but a third is a lot. It is better to leave your heirs wealthy than to make them beg from people with their hands. Whatever you spend on maintenance is sadaqa, even the morsel you put in your wife's mouth. Perhaps Allah may lengthen your life so that some people benefit by you and others are harmed by you." At that time he only had one daughter.

III: Willing away a third

Al-Hasan said, "It is only permitted to will away a third."

Allah Almighty says, "So judge between them by what Allah has sent down." (5:49)

2592. It is related that Ibn 'Abbas said, "People should reduce it to a fourth because the Messenger of Allah, may Allah bless him and grant him peace, said, 'A third, and a third is a lot - or substantial.'"

2593. It is related that Sa'd said, "The Prophet visited me when I was will. I said, 'Messenger of Allah, ask Allah not to make me die in the land I left.' He said, 'Perhaps Allah will lengthen your life and benefit some people through you.' I said, 'I want to make a will and I only have a daughter.' I asked, 'Shall I will away a half?' He said, 'A half is too much.' I said, 'A third, and a third is a lot - or substantial.'" He said, "People used to will away a third as they were permitted to do that."

IV: Someone making the will saying to his executor, "Look after my son," and what the executor is permitted to claim

2594. It is related that 'A'isha, the wife of the Prophet, said, "'Utba ibn Abi Waqqas had made his brother, Sa'd ibn Abi Waqqas give an undertaking, saying, 'The son of the slavegirl of Zam'a is mine, so take him with you.' In the year of the Conquest, Sa'd took him and said, 'My brother's son who gave me an undertaking about him.' 'Abd ibn Zam'a got up and said, 'My brother and the son of my father's slavegirl. He was born on his bed.' They took the case to the Messenger of Allah, may Allah bless him and grant him peace, and Sa'd said, 'Messenger of Allah, my brother's son. He gave me an undertaking about him.' 'Abd ibn Zam'a said, 'My brother and the son of my father's slavegirl.' The Messenger of Allah, may Allah bless him and grant him peace, said, 'He is yours, 'Abd ibn Zam'a. The child belongs to the bed and stones belong to the adulterer.' Then he told Sawda bint Zam'a, 'Veil yourself from him,' since he saw that he resembled 'Utba. He did not see her until he died."

V: When a sick person makes a clear indication with his head, that is permitted

2595. It is related from Anas that a Jew crushed the head of a girl between two stones and she was asked, "Who did this to do? So-and-so? So-and-so?" until the Jew was named. She made a gesture with her head. He was brought and kept until he confessed and the Prophet, may Allah bless him and grant him peace, ordered that his head be crushed with stones.

VI: No bequest is made to an heir

2596. It is related that Ibn 'Abbas said, "It used to be that property belonged to the child and the parents only inherited through a will, and then Allah abrogated what He willed of that and assigned the male the portion of two females and assigned each of the parents a sixth and appointed for the wife an eighth and a fourth, and for the husband a half and a fourth."

VII: Sadaqa at the time of death

2597. It is related that Abu Hurayra said, "A man asked the Prophet, may Allah bless him and grant him peace, 'Messenger of Allah, which sadaqa is best?' He replied, 'That you give sadaqa while you are healthy yet covetous, in fear of poverty and desiring wealth. Do not put it off until death is near and you say, "So-and-so should have this much and so-and-so this much,"' when it already belongs to someone else."

VIII: The words of Allah Almighty, "after any bequest you make or any debts" (4:11)

It is mentioned that Shurayh, 'Umar ibn 'Abdu'l-'Aziz, Tawus, 'Ata', and Ibn Udhayna permitted a sick person to acknowledge a debt.

Al-Hasan said, "The truest sadaqa that a man gives is that on the last day of [his life in] this world and the first day of the Next world."

Ibrahim and al-Hakam said, "If he absolves an heir from a debt, he is absolved."

Rafi' ibn Khudayj left in a will that his wife, al-Fazariyya, should not have removed those things on which her door had closed [i.e. the contents of her house belonged to her.]

Al-Hasan said, "When someone is dying and tells his slave, 'You are free,' that is valid."

Ash-Sha'bi said, "When a woman says when she is dying, 'My husband has paid me [what he owed me] and I have received it," that acknowledgement is valid. Some people* say, 'The affirmation of a dying person is not permitted because the heirs might suspect it. Then they employ istihsan** and say, 'It is permitted for him to affirm trusts, goods, and partnership.' The Prophet, may Allah bless him and grant him peace, said, 'Beware of suspicion. Suspicion is the falsest form of speech.'"

[*i.e. Abu Hanifa and his people.

** istihsan: juristic preference, setting aside the result of analogy for something considered better.]

The property of Muslims is not lawful [to other than the owner] by the words of the Prophet, may Allah bless him and grant him peace, "The sign of a hypocrite is that when you give him a trust, he betrays it." Allah Almighty says, "Allah commands you to return to their owners the things you hold on trust ." (4:58) He did not specify an heir or anyone else. This hadith contains 'Abdullah ibn 'Amr reporting from the Prophet, may Allah bless him and grant him peace.

2598. It is related from Abu Hurayra that the Prophet, may Allah bless him and grant him peace, said, "There are three signs of a hypocrite: whenever he speaks, he lies; whenever he is trusted, he betrays his trust; and whenever he makes a promise, he breaks it."

IX: Interpretation of the words of Allah Almighty, "after any bequest you make or any debts" (4:11)

It is mentioned that the Prophet, may Allah bless him and grant him peace, settled debts before bequests.

His words, "Allah commands you to return to their owners the things you hold on trust ." (4:58)

Returning trusts takes priority over voluntary bequests. The Prophet, may Allah bless him and grant him peace, said, "There is no sadaqa except from someone who is wealthy."

Ibn 'Abbas said, "The slave cannot make a bequest without his owner's permission. The Prophet, may Allah bless him and grant him peace, said, 'A slave is a shepherd of his master's property.'"

2599. It is related that Hakim ibn Hizam said, "I asked the Messenger of Allah, may Allah bless him and grant him peace, and he gave to me, and then I asked him and then he gave to me. Then he said to me, 'O Hakim, this wealth is green and sweet. Whoever takes it with a generous soul will be blessed in it. Whoever takes it with avarice will not be blessed in it. He is like someone who eats and is not filled. The upper hand is better than the lower hand.'" Hakim said, "I said, 'Messenger of Allah, by the One who sent you with the truth, I will never take anything from anyone after you until I leave this world!' Abu Bakr used to call Hakim to give him the stipend but he refused to take any of it. Then 'Umar summoned him to give it to him but he refused to take it. He said, 'O company of Muslims! I offered him his due which Allah has allotted him from this booty and he refuses to take it.'" Hakim did not take anything from the people after the Prophet, may Allah bless him and grant him peace, until he died, may Allah have mercy on him.

2600. It is related from Ibn 'Umar who said that he heard the Messenger of Allah, may Allah bless him and grant him peace, say, "All of you are shepherds. Each of you is responsible for his flock. An imam is a shepherd and is responsible for his flock. A man is a shepherd in respect of his family and is responsible for his flock. A woman is a shepherd in respect of her husband's house and is responsible for her flock. A servant is a shepherd in respect of his master's property and is responsible for his flock." He said, "I think that he said, "A man is a shepherd in respect of his father's property."

X: When someone makes a waqf or bequest for his relatives, and who constitutes the relatives

Thabit reported from Anas that the Prophet, may Allah bless him and grant him peace, said to Abu Talha, "Assign it to your poor relatives," and he assigned it to Hassan and Ubayy ibn Ka'b.

It is reported from Anas in a similar hadith to that of Thabit that he said, "Assign it to your poor kin." Anas said, "He assigned it to Hassan and Ubayy ibn Ka'b, who were closer to him than me. The kinship of Hassan and Ubayy to Abu Talha was that his name was Zayd ibn Sahl ibn al-Aswad ibn Haram ibn 'Amr ibn Zayd Manat ibn 'Adi ibn 'Amr ibn Malik ibn an-Najjar, and Hassan was the son of Thabit ibn al-Mundhir ibn Haram, and so they both have Haram, who is the grandfather. Haram was the son of 'Amr ibn Zayd Manat ibn 'Adi ibn 'Amr ibn Malik ibn an-Najjar, so Hassan, Abu Talha and Ubayy are joined in the sixth ancestor to 'Amr ibn Malik, who is Ubayy ibn Ka'b ibn Qays ibn 'Ubayd ibn Zayd ibn Mu'awiya ibn 'Amr ibn Malik ibn an-Najjar. So 'Amr ibn Malik is an ancestor of both Hassan, Abu Talha and Ubayy.

One of them* said, "If he makes a bequest on behalf of his kin, they must go back to a common Muslim ancestor."

[*Abu Yusuf]

2601. It is related from Anas that the Prophet, may Allah bless him and grant him peace, said to Abu Talha, "I think that you should assign it to your relatives." Abu Talha said, "I will do it, Messenger of Allah," and Abu Talha divided it between his relatives and cousins."

Ibn 'Abbas said, "When the ayat was sent down, 'Warn your near relatives," (26:214) the Prophet, may Allah bless him and grant him peace, began to call, "O Banu Fihr! O Banu 'Adi!', the subtribes of Quraysh.

Abu Hurayra said, "When 'Warn your near relatives', was sent down, the Prophet, may Allah bless him and grant him peace, said, 'O company of Quraysh!'"

XI: Are women and children included among relatives?

2602. It is related from Abu Hurayra, "When Allah, the Mighty and Exalted, sent down 'Warn your near relatives', the Messenger of Allah, may Allah bless him and grant him peace, stood up and said, 'O company of Quraysh! (or words to that effect) Purchase your selves! I cannot help you against Allah in any way. O Banu 'Abd Manaf! I cannot help you against Allah in any way. O 'Abbas ibn 'Abdu'l-Muttalib! I cannot help you against Allah in any way. O Safiyya, aunt of the Messenger of Allah! I cannot help you against Allah in any way. O Fatima daughter of Muhammad! Ask me what you wish of my property, but I cannot help you against Allah in any way.'"

Asbagh corroborated it from Ibn Wahb from Yunus from Ibn Shihab.

XII: Can someone who sets up a waqf benefit from his waqf?

'Umar stipulated that there is no harm in its trustee eating from it. The founder of the waqf or someone else can act as its trustee. It is like that with someone who designates sacrificial camels or something else for Allah - he can use that as others use it, even if he had not stipulated that.

2603. It is related from Anas that the Prophet, may Allah bless him and grant him peace, saw a man driving a sacrificial camel and said, "Ride it." He said, "Messenger of Allah, it is a sacrificial camel." He said on the third or fourth time, "Ride it, confound you (or bother you).

2604. It is related from Abu Hurayra that the Prophet, may Allah bless him and grant him peace, saw a man driving a sacrificial camel and said, "Ride it." He said, "Messenger of Allah, it is a sacrificial camel." He said, "Ride it, confound you" the second or third time.

XIII: When someone makes a waqf of something before he has given to someone else, that is permitted

That is because 'Umar created a waqf and said, "There is no objection if its trustee eats," and he did not specify whether its trustee was 'Umar or someone else.

The Prophet, may Allah bless him and grant him peace, said to Abu Talha, "I think you should assign it for relatives," and he said, "I will do it" and he divided it between his relatives and cousins.

XIV: When someone says, "My house is sadaqa for Allah" and does not specify that it is for the poor or others, that is permitted, and he can give it to his relatives, or wherever he likes

The Prophet, may Allah bless him and grant him peace, spoke to Abu Talha when he said, "The property I love the most is Bayraha' and it is sadaqa for Allah," and the Prophet, may Allah bless him and grant him peace, permitted that.

One of them* said, "It is not permitted until he makes it clear whom it is for," but the first is sounder.

[*ash-Shafi'i]

XV: When someone says, "My land - or my garden - is sadaqa on behalf of my mother," it is permitted, even if he does not specify the beneficiary

2605. It is related from Ibn 'Abbas that the mother of Sa'd ibn 'Ubada died in his absence. He said, "Messenger of Allah, my mother has died in my absence. Will it help her at all if I give sadaqa on her behalf?" He said, "Yes." He said, "Then I testify that my two gardens of al-Mikhraf are sadaqa on her behalf."

XVI: When someone gives sadaqa or makes a waqf of part of his property, or part of his slaves, or his animals, that is permitted

2606. It is related that Ka'b ibn Malik was heard to say, "I said, 'Messenger of Allah, part of my repentance is that I give all my property as sadaqa to Allah and to His Messenger.' He said, 'Keep part of your property. That is better for you.' I said, 'I will keep my share at Khaybar."

XVII: Someone who gives sadaqa to his guardian and then his guardian returns it to him

2607. It is related that Anas said, "When it was sent down, 'You will not attain true goodness until you give of what you love,' (3:92) Abu Talha came to the Messenger of Allah, may Allah bless him and grant him peace, and said, 'Messenger of Allah, Allah, may He be blessed and exalted! says in His Book, "You will not attain true goodness until you give of what you love." The property I love the best is Bayraha.'" He said, "It was a garden, and the Messenger of Allah, may Allah bless him and grant him peace, used to enter it and enjoy its shade and drink its water. He said, 'It is sadaqa for Allah, the Mighty and Exalted, and His Messenger. I hope for its goodness and I hope that it will be stored up for me. Messenger of Allah, dispose of it in whatever way Allah shows you is best.' The Messenger of Allah, may Allah bless him and grant him peace, said, 'Excellent, Abu Talha! That is a profitable property. We accept it from you and return it to you. Designate it for your relatives." Abu Talha gave it as sadaqa to his relatives." He said, "They included Ubayy and Hassan." He said, "Hassan sold his share of it to Mu'awiya. It was said to him, 'Do you sell the sadaqa of Abu Talha?' He replied, 'Why should I not sell a sa' of dates for a sa' of dirhams?'" He said, "That garden was in the location of the fortress of the Banu Hudayla which Mu'awiya built."

XVIII: The words of Allah Almighty, "If other relatives or orphans or poor people attend the sharing-out, provide for them out of it." (4:8)

2608. It is related that Ibn 'Abbas said, "Some people claim that this ayat was abrogated. No, by Allah, it was not abrogated, but it is part of what people attach little importance to. There are two guardians: there is the guardian who inherits, and that is the one who provides [for them], and there is the guardian who does not inherit. That is the one to whom you should speak kindly and say, 'I do not own it so that I can give to you.'"

XIX: It is recommended to give sadaqa on behalf of someone who dies suddenly and to carry out the vows of the deceased

2609. It is related from 'A'isha that a man said to the Prophet, may Allah bless him and grant him peace, "My mother died suddenly and I thought that if she had spoken, she would have given sadaqa. Shall I give sadaqa on her behalf?" He said, "Yes, give sadaqa on her behalf."

2610. It is related from Ibn 'Abbas that Sa'd ibn 'Ubada asked for the decision of the Messenger of Allah, may Allah bless him and grant him peace, saying, "My mother died having made a vow." He said, "Carry it out on her behalf."

XX: Witnesses in waqfs and sadaqa

2611. It is related from Ibn 'Abbas that the mother of Sa'd ibn 'Ubada, the brother of the Banu Sa'ida, died in his absence. He went to the Prophet, may Allah bless him and grant him peace, and said, "Messenger of Allah, my mother has died in my absence. Will it help her at all if I give sadaqa on her behalf?" He said, "Yes." He said, "Then I testify that my two gardens of al-Mikhraf are sadaqa on her behalf."

XXI: The words of Allah Almighty:

"Give orphans their property, and do not substitute bad things for good. Do not assimilate their property into your own. Doing that is a serious crime. If you are afraid of not behaving justly towards orphans, then marry other permissible women." (4:2-3)

2612. It is related that 'Urwa ibn az-Zubayr asked 'A'isha about, "If you are afraid of not behaving justly towards orphans, then marry other permissible women," and she said, "It is refers to the orphan girl in the care of her guardian. He desires her beauty and property and wants to marry her for less than the customary dowry of women like her. They were forbidden to marry them until they were just to them by giving them their full dowry. [Otherwise,] they were commanded to marry women besides them."

'A'isha said, "Then after that people asked the Messenger of Allah, may Allah bless him and grant him peace, for a statement and Allah, the Mighty and Exalted, sent down, 'They will ask you for a definitive ruling about women. Say, "Allah gives you a definitive ruling about them."' (4:127)" She said, "Allah made it clear in this ayat that if an orphan girl has beauty and wealth, they would desire to marry her and not give her the full amount of dowry according to custom. If she is not desirable since she has little beauty and money, they would leave her and seek other women. He said, 'As they left her when they did not desire her, so they cannot marry her when they desire her unless they are fair to her by paying her the full dowry and giving her what she is due.'"

XXII: The words of Allah Almighty, "Keep a close check on orphans until they reach a marriageable age, then if you perceive that they have sound judgement hand over their property to them. Do not consume it extravagantly and precipitately before they come of age. Those who are wealthy should abstain from it altogether. Those who are poor should use it sensibly and correctly. When you hand over their property to them ensure that there are witnesses on their behalf. Allah is enough as a Reckoner. Men receive a share of what their parents and relatives leave and women receive a share of what their parents and relatives leave, a fixed share, no matter whether it is a little or a lot." (4:6-7)

XXIII: What the executor can do with an orphan's property and what he can consume from it according to his work

2613. It is related from Ibn 'Umar that 'Umar gave as sadaqa some property that he had in the time of the Messenger of Allah, may Allah bless him and grant him peace. It was called Thamgh and consisted of date-palms. 'Umar said, "O Messenger of Allah, I have obtained some property, and it is precious to me. I want to give it as sadaqa." The Prophet, may Allah bless him and grant him peace, said, "Give its capital as sadaqa provided that it would not be sold or given away or inherited. Its proceeds should be spent.' So 'Umar gave it as sadaqa and that sadaqa was in the way of Allah for freeing slaves, the poor, guests, travellers, and relatives. There nothing wrong if its trustee consumes some of it in a correct and reasonable manner or feeds his friend without storing up.'"

it 2614. It is related that 'A'isha said that "Those who are wealthy should abstain from it altogether. Those who are poor should use it sensibly and correctly" was sent down about the guardian of an orphan, so that if he is needly, he can take from the property according to his financial situation in a reasonable manner.

XXIV: The words of Allah Almighty, "People who consume the property of orphans wrongfully consume nothing in their bellies except fire. They will roast in a Searing Blaze." (4:10)

2615. It is related from Abu Hurayra that the Prophet, may Allah bless him and grant him peace, said, "Avoid the seven fatal sins." They asked, "Messenger of Allah, what are they?" He answered, "Associating others with Allah, sorcery, killing a soul which Allah has forbidden except by legal right, consuming usury, consuming the property of an orphan, fleeing on the day of battle and slandering unthinking chaste believing women."

XXV: The words of Allah Almighty:

"They will ask you about the property of orphans. Say, 'Managing it in their best interests is best.' If you mix your property with theirs, they are your brothers. Allah knows a squanderer from a good manager. Had Allah wanted, He could have been hard on you. Allah is Almighty, All-Wise." (2:220) "To be hard on" is "to make things difficult and constrict." "'Anat" (19:111) means "to humble.'

It is related from Nafi', "Ibn 'Umar did not refuse to act as anyone's executor."

That which Ibn Sirin liked best regarding the orphan's property was for his advisors and guardians to meet with him and investigate what was best for him.

Tawus said, "When he was asked about anything regarding the business of the orphans, he would recite, 'Allah knows the man who means mischief from the man who means good.'"

'Ata' said about orphans, "The guardian spends on the young and old, each one according to his share."

XXVI: Employing the orphan on a journey and at home if that is in his best interests. The mother and her husband should look after the orphan

2616. It is related that Anas said, "The Messenger of Allah, may Allah bless him and grant him peace, came to Madina and did not have a servant. Abu Talha took my hand and took me to the Messenger of Allah, may Allah bless him and grant him peace. He said, 'O Messenger of Allah, Anas is a clever boy, so take him for a servant.'" He said, "I served him on journeys and at home, and he never said to me about something I had done, 'Why did you do this like that?,' nor about something I had done, 'Why did you not do this?'"

XXVII: When land is made a waqf without its borders being stipulated, that is allowed, and it is the same with sadaqa

2617. It is related from that Anas ibn Malik said, "Abu Talha had more property in palm trees than any of the Ansar in Madina. His favourite property was Bayruha' which was opposite the mosque. The Messenger of Allah, may Allah bless him and grant him peace, used to enter it and drink its sweet water." Anas said, "When this ayat was sent down: 'You will not attain true goodness until you give of what you love,' Abu Talha stood up and said, 'Messenger of Allah, Allah says, "You will not attain true goodness until you give of what you love." The property I love the best is Bayruha'. It is sadaqa for Allah whose goodness I hope for and I hope that it will be stored up for me with Allah. Dispose of it in whatever way Allah shows you.' He said, 'Excellent! That is a profitable property (or a property with good return - Ibn Maslama was unsure he said.) I think that you should give it to your relatives.' Abu Talha said, 'I will do that, Messenger of Allah!' So Abu Talha divided it among his relatives and cousins."

Malik has "ra'ih" (rather than rabih).

2618. It is related from Ibn 'Abbas that a man said to the Messenger of Allah, may Allah bless him and grant him peace, "My mother has died. Will it help her if I give sadaqa on her behalf?" He answered, "Yes." He said, "I have Mikhraf and I testify to you that I have given it as sadaqa on her behalf."

XXVIII: When a group designate a shared piece of land as a waqf, that is permitted

2619. It is related that Anas said, "The Prophet, may Allah bless him and grant him peace, commanded that the mosque be built and said, 'O Banu'n-Najjar! Name me a price for this garden of yours.' They said, 'No, by Allah. We ask no price for it except from Allah.'

XXIX: How a waqf is written

2620. It is related that Ibn 'Umar said, "'Umar got some land in Khaybar and he went to the Prophet, may Allah bless him and grant him peace, and said, "O Messenger of Allah, I have got some land in Khaybar, and I have got no property more precious to me than it. What do you command about it?" He said, "If you wish, you can make its capital a waqf and you can give it as sadaqa." He said, "'Umar gave it as sadaqa provided that it would not be sold or given away or inherited. Its was for the poor, relatives, slaves, in the way of Allah, for guests, and travellers. Its trustee does nothing wrong if he consumes some of it in a correct and reasonable manner or feeds his friend without storing up."

XXX: A waqf for the wealthy, the poor, and guests

2621. It is related from Ibn 'Umar that 'Umar had some property in Khaybar and came to the Prophet, may Allah bless him and grant him peace, and told him and he said, "If you wish, you can make it sadaqa," and he made it sadaqa for the poor, the needy, relatives and guests.

XXXI: A waqf of land for a mosque

2622. It is related from Anas ibn Malik that when the Messenger of Allah, may Allah bless him and grant him peace, came to Madina, he ordered the mosque [be built] and said, "O Banu'n-Najjar! Name me a price for this garden of yours." They said, "No, by Allah. We ask no price for it except from Allah."

XXXII: A waqf of riding animals, horses, goods and money

Az-Zuhri [was asked] about someone who assigns a thousand dinars for the way of Allah and gives it to a slave of his who is a merchant to trade with and stipulates that its profit is sadaqa for the poor and relatives: "Can the man consume any of the profit of that thousand, even if he did not assign its profit as sadaqa for the poor? " He said that he cannot consume any of it.

2623. It is related that Ibn 'Umar gave away (a mount) a horse in the way of Allah. The Messenger of Allah, may Allah bless him and grant him peace, had given it to him so that he could mount a man on it. 'Umar was informed that he had put it up for sale. He asked the Messenger of Allah, may Allah bless him and grant him peace, about buying it and he said, "Do not buy it. Do not take back your sadaqa."

XXXIII: Paying the administrator of a waqf

2624. It is related from Abu Hurayra that the Messenger of Allah, may Allah bless him and grant him peace, said, "My heirs will not divide up a single dinar. What I leave after the expenses of my wives and the payment of my agent is sadaqa."

2625. It is related from Ibn 'Umar that 'Umar put a condition in his waqf that its executor could eat and feed his friend without storing up any property.

XXIV: When land or well is made a waqf and the person who makes it stipulates for himself the same use of the water as that which is assigned to the Muslims

Anas made a waqf of a house and used to stay there when he went there.

Az-Zubayr gave his house as sadaqa and said that any of his daughters who was divorced should live there without causing harm to others or harm to her. If she was free of need by virtue of having a husband, then she had no right to stay there.

Ibn 'Umar assigned his portion of the house of 'Umar to be lived in by those of the family of 'Abdullah who were in need.

2626. It is related that when 'Uthman was under siege, he looked down on them and said, "I ask you by Allah, and I ask none but the Companions of the Prophet, do you not know that the Messenger of Allah, may Allah bless him and grant him peace, said, 'Whoever digs the well of Ruma will have the Garden'? I dug it. Do you not know that he said, 'Whoever provisions the Army of Hardship will have the Garden'?' I provisioned it." He said, "They confirmed what he said."

'Umar said in his waqf, "There is no objection if its trustee consumes some of it." The waqf can be managed by the one who makes it or by someone else can tend it. The expression used includes both.

XXV: When someone making a waqf says, "We do not ask its price except from Allah," that is permitted

2627. It is related from Anas that the Prophet, may Allah bless him and grant him peace, said, "O Banu'n-Najjar! Name me a price for this garden of yours." They said, "No, by Allah. We ask no price for it except from Allah."

XXXVI: The words of Allah Almighty:

"O you who believe! When one of you is near to death and makes a will, two just men from among you should act as witnesses; or, if you are travelling when the misfortune of death occurs, two men from other than yourselves. You should detain them after the prayer and, if you are doubtful, they should swear by Allah: 'We will not sell it for any price, even to a near relative, and we will not conceal the testimony of Allah. If we did we would indeed be among the wrongdoers.' If it then comes to light that the two of them have merited the allegation of wrongdoing, two others who have the most right to do so should take their place and swear by Allah: 'Our testimony is truer than their testimony. We have not committed perjury. If we had we would indeed be among the wrongdoers.' That makes it more likely that they will give their evidence properly or be afraid that their oaths will be refuted by subsequent oaths. Show fear of Allah and listen carefully. Allah does not guide degenerate people." (5:106-108) "'Uthira" is to be shown. "A'tharna" is "We showed" (18:21)

2628. It is related that Ibn 'Abbas said, "A man went out from the Banu Sahm with Tamim ad-Dari and 'Adi ibn Badda' and the Sahmi man died in a land where there were no Muslims. When they brought his effects, they [the relatives] noticed the absence of a silver goblet with gold engraving. The Messenger of Allah, may Allah bless him and grant him peace, made them take an oath. Then the goblet was found in Makka and they said, 'We bought it from Tamim and 'Adi.' Two of the relatives of the deceased got up and swore, 'Our testimony is truer than their testimony. The goblet belonged to their companion.'" He stated, "It was about them that this ayat was sent down: 'O you who believe! When one of you is near to death and makes a will, two just men from among you should act as witnesses.'"

XXXVII: The executor settling the debts of the deceased without the heirs being present

2629. It is related from Jabir ibn 'Abdullah al-Ansari that his father was marytred at Uhud and left six daughters and also left debts. "When the time for harvesting the dates came, I went to the Messenger of Allah, may Allah bless him and grant him peace, and said, 'Messenger of Allah, you know that my father was martyred at Uhud and left many debts. I wish that the creditors would see you.' He said, 'Go and put each type of date in a heap.' I did that. Then I called him. When they saw him, they immediately bombarded me with their claims at that moment. When he saw what they were doing, he walked around the largest heap three times and then sat at it. Then he said, 'Summon your companions.' He continued to weigh out for them until Allah settled the account of my father. By Allah, I would have been pleased if Allah has just settled my father's account and I had not returned with a single date to my sisters. By Allah, the heaps were all whole, and I looked at the heap where the Messenger of Allah, may Allah bless him and grant him peace, had been and it was as if it had not been decreased by a single date!"

Abu 'Abdullah said, "Ughrû bî means they pressed me, as in "We stirred up enmity and hatred between them." (5:14)


Return to Contents

Return to Home Page