Encyclopedia

of Maliki Fiqh
Prepared by
Khalid ‘Abd al-Rahmiya al-‘Ak ((‫دلاخ دبخ ةامحرلا ةالا‬
Volume Two
Two Important Introductions on
The Emergence of the Maliki School
and the Soundness of the School of the People of Medina (Ahl al-Madina) Adopted by
Imam Malik
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The Emergence of the School of Imam Malik
The Emergence of the Maliki School
This school is ascribed to Imam Malik ibn Anas, born in Medina in the year 93 AH and
who died there in 179 AH. He was raised in a household of knowledge and was
educated in Medina, to which he remained attached, not leaving it except for pilgrimage
to Mecca. He learned fiqh (jurisprudence) and hadith (prophetic tradition) from its
foremost hadith scholars. His first teacher was Rabi‘a al-Ra’y, one of the leading jurists
of opinion among the Tabi‘in (Successors). However, Malik’s jurisprudence was
predominantly influenced by the environment of Medina, which was the home of hadith.
He matured in fiqh and sat to teach in the Mosque of the Prophet, and people traveled
to him. He was pious and God-fearing. He authored a valuable book titled the Muwatta’,
in which he compiled authentic (sahih) hadiths and included a number of the legal
opinions (fatwas) of some Companions and Successors, and at times added what his
own ijtihad (juridical reasoning) led him to. It is among the earliest works to combine
hadith and fiqh. Due to the greatness of this book, some caliphs desired to make it a
reference to which people would refer and rely upon for their legal needs, but Malik
refused this. Malik was strong in upholding the truth, undeterred by the blame of any
critic, issuing rulings according to the evidence, even if it did not please others
regardless of their status.
Malik’s Methodology in Deriving Rulings
His methodology in deriving rulings was to refer first to the Book of God (the Quran); if
he did not find (a ruling) there, he would turn to the Sunnah (prophetic tradition).
Likewise, if what was in the Book was general, he would seek clarification in the
Sunnah. He regarded the practice of the people of Medina (Ahl al-Madina) as
tantamount to a mutawatir (mass-transmitted) hadith, which he would give precedence
over any solitary report (khabar ahad) that contradicted it. If there was no text from the
Book or Sunnah, he would search for it in the consensus (ijma‘) of the jurists among the
Companions or the Successors. Otherwise, he would take the opinion of a Companion if
found, provided it was not an area open to opinion; if not, he would resort to qiyas
(analogical reasoning), assigning to the matter under consideration the ruling of another
analogous matter due to the shared effective cause (‘illah). Malik was among those
most expansive in accepting hadith, due to his upbringing and education in Medina,
which, as noted, was the source of hadith. Nevertheless, he often based his rulings on
rational evidences such as istihsan (juristic preference), istis-hab (presumption of
continuity), maslahah (public interest), dar‘a (legal stratagem/contextual reason), and
‘urf or ‘adah (customary practice). Thus, it may be said that Malik was expansive in both
domains: hadith and opinion (ra’y). His association with the school of hadith is due to his
being contemporary to Imam Abu Hanifa, who was raised in Iraq and had little access to
hadith, relying much on opinion. Malik, on the other hand, was not in need of such
reliance due to the abundance of hadith and the practices of the people of Medina in his
environment. This difference between the two contemporary schools led to Malik being
included among the people of the school of hadith.
Malik’s Aides in Spreading His School
Among the most famous of those who assisted Malik in spreading his school were: ‘Abd
Allah ibn Wahb, ‘Abd al-Rahim ibn al-Qasim, Ashhab ibn ‘Abd al-‘Aziz al-Qaysi, and
‘Abd Allah ibn al-Hakam—all Egyptian jurists who traveled to him for knowledge and
then returned to Egypt, where they became the pillars of the religious school there and
worked to spread his school in Egypt. He also had students and followers in other
regions who worked to spread his school in their areas. Among these was Asad ibn al-
Furat, who was raised in Tunisia and then traveled to study fiqh under Malik and then
under the companions of Abu Hanifa, then returned to Egypt and presented his
knowledge of the jurisprudence of the Hanafis to Ibn al-Qasim, the Maliki jurist, who
issued fatwas on it according to the Maliki school. He recorded his fatwas in a book
called the Madawwana, attributing it to Imam Malik. Among them was ‘Abd al-Salam ibn
Habib, known as Sahnun, originally from Homs, who moved to Egypt with the
Madawwana of Ibn al-Furat, where he met Ibn al-Qasim, presented it to him, and
received some amendments which he documented. He then moved to Kairouan in
North Africa and worked to spread the school there. Among them was Yahya ibn Yahya
al-Laythi al-Andalusi, who traveled to him and then to Egypt, where he met the
companions of Malik, learned from them, and then returned to Andalus to spread his
fiqh there.
It should be noted that these students often differed from Imam Malik in some rulings
according to what their ijtihad (juridical reasoning) within the framework of the imam’s
principles led them to. Many books were later authored compiling these opinions and
subsequent ijtihads based on the school’s principles, and the rulings contained in these
books were added to the Maliki school. This explains what we have said about it being a
collective school. Among the most important of these works are: al-Muqaddimat al-
Mumahhidat by Ibn Rushd, al-Qawanin al-Fiqhiyya by Ibn Jazzi, Tabsirat al-Hukkam by
Ibn Farhun, the Mukhtasar of Khalil, its commentary, and its numerous marginalia.
(1) Madkhal al-Fiqh al-Islami by Dr. Muhammad Salam Madkur, pp. 40–42.
The Soundness of the School of the People of Medina
The Soundness of the School of the People of Medina Adopted by Imam Malik
Shaykh al-Islam, may God have mercy on him, was asked:
About “the soundness of the foundational principles of the school of the people of
Medina (Ahl al-Madina), and the status of Malik, to whom their school is ascribed, in
leadership (imama), religious authority (diyana), and his mastery of the sciences of the
Shari‘a, according to the leading scholars of the cities and the trustworthy and
experienced among the people of all ages?”
He answered, may God be pleased with him: (1)
Praise be to God. The school of the people of Medina—the abode of the Sunnah, the
abode of emigration, and the abode of victory, in which God established for His
Messenger Muhammad (peace be upon him) the practices and laws of Islam, and to
which the emigrants (muhajirun) to God and His Messenger migrated, and in which
were the Ansar who settled in the abode and faith before them—their school in the time
of the Companions, the Successors, and their followers is the soundest of the schools
of the Islamic cities, east and west, in fundamentals and branches. These three eras are
the eras of the three virtuous generations about which the Prophet (peace be upon him)
said in the authentic (sahih) hadith from various sources: “The best of generations is the
generation in which I was sent; then those who follow them; then those who follow
them.” Ibn Hibban mentioned after his (the Prophet’s) generation two generations
without dispute, and in some hadiths there is uncertainty about the third generation after
his, while in some narrations it is stated decisively, affirming the third generation after
his, making them four.
(1) The issue of the soundness of the school of the people of Medina is found in
Majmu‘ Fatawa Shaykh al-Islam Ahmad ibn ‘Abd al-Halim ibn Taymiyya, may God have
mercy on him, vol. 20, pp. 294–305 and 328–381.
The Soundness of the School of the People of Medina
This was asserted by Ibn Hibban al-Busti and others among the scholars of hadith
regarding the ranks of this umma, as this addition is established in the authentic
narrations.
As for the hadiths regarding the three generations, in the two Sahihs from ‘Abd Allah ibn
Mas‘ud who said:
The Messenger of God (peace be upon him) said: “The best of my umma is the
generation who are with me, then those who follow them, then those who follow them.
Then there will come a people whose testimony will precede their oath, and their oath
will precede their testimony.” And in Sahih Muslim from ‘A’isha (may God be pleased
with her): She said: A man asked the Messenger of God: “Which people are best?” He
said: “The generation in which I was sent; then the second; then the third.” As for doubt
regarding the fourth generation: In the two Sahihs, from ‘Imran ibn Husayn, the
Messenger of Allah (peace be upon him) said: “The best of you are my generation, then
those who follow them, then those who follow them.” ‘Imran said: I do not know whether
the Messenger of Allah (peace be upon him) said after his generation ‘two times’ or
‘three times’: “Then there will come after them a people who bear witness without being
asked to do so, who betray and are not trustworthy, who vow and do not fulfill, and
obesity will appear among them.” In another wording: “The best of this Ummah is the
generation in which I was sent, then those who follow them, then those who follow
them.” In it he said: “They swear oaths but are not asked to swear.”
And in Sahih Muslim, from Abu Hurayrah, he said: The Messenger of Allah (peace be
upon him) said: “The best of my Ummah is the generation in which I was sent, then
those who follow them—by Allah, I do not know, did he mention the third or not?—then
there will come a people who love obesity, who bear witness before being asked to do
so.”
His statement in these hadiths, “They bear witness before being asked to do so,” has
been understood by a group of scholars to mean giving testimony to the truth before it is
requested by the one for whom the testimony is being offered. They interpreted this as
applying to someone who has knowledge, reconciling this with his statement: “Shall I
not inform you of the best of witnesses? The one who brings his testimony before he is
asked for it,” and they interpreted the latter as referring to one who brings his testimony
to the person concerned and informs him of it.
The Soundness of the Madhhab of the People of Medina
The soundest opinion is that the blame in these hadiths is for those who bear false
witness, as has come in some wordings of the hadith, and then lying becomes
widespread among them, so that a man bears witness without being asked; for this
reason, it is mentioned alongside betrayal and failure to fulfill vows. These traits are the
signs of a hypocrite, as established in the agreed-upon hadith from him (peace be upon
him): “The signs of a hypocrite are three: when he speaks, he lies; when he promises,
he breaks his promise; and when he is entrusted, he betrays the trust.” In Muslim’s
narration: “Even if he fasts and prays and claims to be a Muslim.” Thus, he blamed
them for the spread of the traits of hypocrisy among them and clarified that they hasten
to lie so much so that a man bears false witness before being asked to do so; this is
worse than one who does not lie until he is asked to do so.
As for what mentions the fourth generation, it is like what is in the two Sahihs from Abu
Sa‘id al-Khudri, from the Prophet (peace be upon him), who said: “A time will come
upon people when a group of people will go out for battle and it will be said to them: ‘Is
there among you anyone who saw the Messenger of Allah?’ They will say: ‘Yes!’ and
victory will be granted to them. Then another group will go out and it will be said: ‘Is
there among you anyone who saw the companions of the Messenger of Allah?’ They
will say: ‘Yes!’ and victory will be granted to them. Then another group will go out and it
will be said: ‘Is there among you anyone who saw the companions of the companions of
the Messenger of Allah?’ They will say: ‘Yes!’ and victory will be granted to them. Then
another group will go out and it will be said: ‘Is there among you anyone who saw the
companions of the companions of the companions of the Messenger of Allah?’ They will
say: ‘Yes!’ and victory will be granted to them.” In al-Bukhari’s wording: “Then a time will
come upon people when a group will go out for battle…” and so forth. In it, the
Messenger of Allah (peace be upon him) mentioned the second and third [generations],
and in it he said: “all are companions,” but did not say “saw.”
And in Muslim, from another narration: “A time will come upon people when an
expedition is sent and they say: ‘Look, do you find among you anyone who was a
companion of the Messenger of Allah?’ A man is found and victory is granted to them
through him. Then the second expedition is sent and they say: ‘Is there among you
anyone who saw the companions of the Messenger of Allah?’ They say: ‘Yes!’ and
victory is granted to them. Then the third expedition is sent and they say: ‘Look, do you
see among you anyone who saw someone who saw the companions of the Messenger
of Allah?’ Then the fourth expedition is sent and it is said: ‘Look, do you see among you
anyone who saw someone who saw someone who saw the companions of the
Messenger of Allah (peace be upon him)?’ A man is found and victory is granted to
them through him.”
This hadith of Abu Sa‘id indicates two things: that the companion of the Prophet is one
who saw him while believing in him, even if his companionship was brief, as the imams
Ahmad and others have explicitly stated. Malik said: “Whoever accompanied the
Messenger of Allah (peace be upon him) for a year, or a month, or a day, or saw him
while believing in him, is among his companions, and has the degree of companionship
according to that.” This is because the term “companionship” is a general term with
various types beneath it; it is said, “He accompanied him for a month, or an hour.” This
hadith clarifies that the ruling of companionship pertains to one who saw him while
believing in him; for this is necessary.
And in the second path in Muslim, four generations are mentioned. Whoever affirms this
addition says: it is from a reliable source, and the omission of it in other hadiths does
not negate its existence, just as when there is doubt in the hadith of Abu Hurayrah as to
whether the third was mentioned, it does not undermine the other sound hadiths in
which the third generation is established. And whoever denies it refers to the authentic
hadith of Ibn Mas‘ud: he informed that after the three generations there would come a
people among whom a man’s testimony would precede his oath, and his oath would
precede his testimony, so what comes after the three generations is mentioned with
blame. It may be said: there is no contradiction between the two reports; for falsehood
may appear in the fourth generation, and yet among them may be those through whom
victory is granted due to the continuity of vision [i.e., connection to the previous
generations].
In the generations praised by the Messenger of Allah, the madhhab (school) of the
people of Medina was the soundest of the madhhabs of the cities, for they adhered
more closely to the practice of the Messenger of Allah (peace be upon him) than the
people of other regions. Others among the people of the various regions were lesser
than them in knowledge of the Prophetic Sunnah and in following it, to the extent that
they did not require recourse to any form of royal governance, while the needs of
scholars and the aims of worshippers in other regions were greater than those of the
people of Medina; for the people of Medina were more independent of all such needs by
virtue of what they possessed of the Prophetic traditions, which everyone else required
knowledge of and adherence to.
For this reason, none of the scholars of the Muslims ever claimed that the consensus
(ijma‘) of the people of any city was binding except for Medina, neither in those
generations nor after them—not the consensus of Mecca, nor of Sham, nor of Iraq, nor
of any other Muslim city. Whoever claims that Abu Hanifa or one of his companions held
that the consensus of the people of Kufa is binding on all Muslims has erred regarding
Abu Hanifa and his companions in this. As for Medina, scholars have discussed the
consensus of its people, and it is well known from Malik and his companions that the
consensus of its people is a proof. Although the rest of the imams disputed this.
The discussion concerns their consensus in those virtuous generations; as for after that,
people have agreed that the consensus of its people is not a proof, since by then there
were scholars elsewhere who were not present in Medina, especially after the rise of
Shi‘ism therein. For its people remained adherents to their ancient madhhab, affiliated
with the madhhab of Malik, until the early sixth century or before or after, when some of
the Shi‘a from the East, from Qashan and others, came to them and corrupted the
madhhab of many of them, especially those affiliated with the Prophetic household.
They brought with them the books of the people of innovation (ahl al-bid‘ah), contrary to
the Book and the Sunnah, and expended great wealth for this, so innovation became
prevalent there from that time.
As for the three virtuous generations, there was never in Medina any manifest
innovation whatsoever, nor did any innovation in the fundamentals of religion emerge
from it at all, as emerged from the other cities. For the major cities inhabited by the
companions of the Messenger of Allah (peace be upon him), from which knowledge and
faith spread, are five: the two Harams, the two Iraqs, and Sham; from these emerged
the Qur’an, hadith, fiqh, worship, and all that pertains to the affairs of Islam.
And from these cities, foundational innovations emerged, except for Medina. From Kufa
emerged Shi‘ism and irja’ (doctrines of extreme postponement), which later spread
elsewhere. From Basra emerged qadariyyah (denial of divine decree), i‘tizal (rationalist
theology), and corrupt asceticism, which later spread elsewhere. And in Sham there
was nasb (hostility to the family of the Prophet) and denial of divine decree. As for
Jahmism (al-tajahhum), it only appeared from the direction of Khurasan, and it is the
origin of innovation (bid‘ah). The emergence of innovations was proportional to the
distance from the prophetic abode (al-dār al-nabawiyyah). When division occurred after
the killing of ‘Uthman, the innovation of the Haruriyyah (Kharijites) appeared, and the
Shi‘a, from among the three predominant groups, preceded the others in being
punished for it: ‘Ali burned them with fire; as for the mufaddilah (those who preferred ‘Ali
over others), he ordered them to be flogged eighty times; and as for the Saba’iyyah
(followers of Ibn Saba’), he threatened them and sought to have Ibn Saba’ punished by
death or otherwise, so he fled from him.
At the end of the era of the Companions, the Qadariyyah (deniers of predestination)
emerged in the last days of Ibn ‘Umar, Ibn ‘Abbas, Jabir, and their peers among the
Companions. The Murji’ah (postponers) also emerged around that time.
As for the Jahmiyyah, they only appeared at the end of the era of the Followers (al-
tabi‘in), after the death of ‘Umar ibn ‘Abd al-‘Aziz. It is narrated that he warned against
them. The emergence of Jahm (founder of Jahmiyyah) was in Khurasan during the
caliphate of Hisham ibn ‘Abd al-Malik. The Muslims killed their elder, Ja‘d ibn Dirham,
before that: Khalid ibn ‘Abd Allah al-Qasri sacrificed him on the Day of Sacrifice and
said, “O people, sacrifice—may Allah accept your sacrifices! I am sacrificing Ja‘d ibn
Dirham, for he claimed that Allah did not take Abraham as a close friend (khalil) nor did
He speak to Moses directly. Exalted is Allah above what Ja‘d ibn Dirham says, a great
exaltation!” Then he descended and slaughtered him. It is reported that this reached al-
Hasan al-Basri and his peers among the Followers, and they praised it.
As for the prophetic city (al-Madina al-nabawiyyah), it remained free from the
appearance of these innovations, though there were some there who concealed such
beliefs; yet they were despised and condemned. There were some among them from
the Qadariyyah and others, but they were censured and subdued, unlike the prevalence
of Shi‘ism and irja’ in Kufa, i‘tizal (Mu‘tazilism) and ascetic innovations in Basra, and
nasb (hostility toward ‘Ali) in Sham, which was manifest.
It has been established in the authentic collection (sahih) from the Prophet (peace be
upon him) that the Dajjal will not enter it (Medina), and in the well-known story that ‘Amr
ibn ‘Ubayd, who was the head of the Mu‘tazilah, passed by a man who was conversing
with Sufyan al-Thawri, not knowing it was Sufyan. ‘Amr said to that man, “Who is this?”
He replied, “This is Sufyan al-Thawri,” or, “He is from the people of Kufa.” ‘Amr said,
“Had I known, I would have invited him to my opinion, but I thought he was one of those
Medinans who come to you from above.” Knowledge and faith continued to be manifest
there up to the time of the companions of Malik, who are the people of the fourth
century, for that generation took from Malik and his contemporaries, such as al-Thawri,
al-Awza‘i, al-Layth ibn Sa‘d, Hammad ibn Zayd, Hammad ibn Salama, Sufyan ibn
‘Uyaynah, and their peers. These took from groups among the Followers, and those
took from those who met the Companions.
The discussion of the consensus (ijma‘) of the people of Medina in those eras:
The precise investigation into the matter of the consensus of the people of Medina is
that among it is that which is agreed upon by all Muslims; some is the position of the
majority of the leading scholars of Islam; and some is held only by a few of them.
The consensus of the people of Medina is of four ranks:
The first: That which is transmitted as if directly from the Prophet (peace be upon him),
such as their transmission of the measure of the sa‘ and mudd (legal measures); their
abandonment of zakat on green vegetables and endowments (awqaf). This is a proof by
agreement of the scholars. As for al-Shafi‘i, Ahmad, and their companions, this is a
proof for them without dispute, just as it is for Malik. This is also the view of Abu Hanifa
and his companions. Abu Yusuf—may Allah have mercy on him, the greatest of Abu
Hanifa's companions and the first to be called “Chief Judge”—when he met Malik and
asked him about these issues, and Malik replied with the mass-transmitted (mutawatir)
reports of the people of Medina, Abu Yusuf returned to his opinion and said, “If my
teacher had seen what I have seen, he would have returned just as I returned.” Abu
Yusuf transmitted that such reports are a proof for his teacher Abu Hanifa, just as they
are for others, but Abu Hanifa did not receive this transmission, just as many hadith did
not reach him or other imams; thus, there is no blame on them for not following what did
not reach them in knowledge. Abu Yusuf’s return to this transmission is like his return to
many hadith which he and Muhammad followed, abandoning the opinion of their
teacher because they knew their teacher would say: “These hadith are also a proof if
they are authentic, but they did not reach him.”
Whoever supposes that Abu Hanifa or other imams of the Muslims deliberately opposed
authentic hadith for the sake of qiyas (analogical reasoning) or otherwise has erred
against them and spoken either out of conjecture or caprice. Here is Abu Hanifa acting
upon the hadith of performing ablution with nabidh (date infusion) during travel,
opposing qiyas, and upon the hadith of laughter in prayer, though it opposes qiyas—
because he believed them to be authentic, even if the scholars of hadith did not
authenticate them.
We have explained this in the treatise “Quarter of Blame on the Eminent Imams,” and
clarified that none of the imams of Islam opposes an authentic hadith without excuse;
rather, they have some twenty excuses, such as: the hadith did not reach one of them;
or it reached him from one he did not trust; or he did not believe it indicated the ruling;
or he believed it was abrogated (nasikh), or something indicating abrogation opposed it,
and similar matters. In some cases, the scholar is correct and has two rewards, and in
others he errs after striving (ijtihad) and is rewarded for his effort, and his error is
forgiven, as in Allah’s saying: “Our Lord, do not take us to task if we forget or make a
mistake” (Qur’an 2:286). It is established in the authentic collection that Allah answered
this supplication and said, “I have done so.” For the scholars are the heirs of the
Prophets.
Whoever reflects upon the foundations of Islam and the principles of the law will find the
foundations of Malik and the people of Medina to be the soundest of foundations and
principles. This has been mentioned by al-Shafi‘i, Ahmad, and others. Indeed, when al-
Shafi‘i debated Muhammad ibn al-Hasan, and Muhammad returned to his companion’s
(Abu Hanifa's) opinion over al-Shafi‘i's, al-Shafi‘i said to him, “By fairness or by
stubbornness?” He replied, “By fairness.” Al-Shafi‘i said, “I ask you by Allah, is our
companion more knowledgeable of the Book of Allah or yours?” He replied, “Your
companion.” He said, “Is our companion more knowledgeable of the Sunnah of the
Messenger of Allah (peace be upon him) or yours?” He replied, “Your companion.” He
said, “Is our companion more knowledgeable of the statements of the Companions of
the Messenger of Allah (peace be upon him) or yours?” He replied, “Your companion.”
He said, “All that remains between us is qiyas; and we also use qiyas, but whoever is
more knowledgeable of the foundations, his qiyas is sounder.” They said to Imam
Ahmad, “Who is more knowledgeable of the Sunnah of the Messenger of Allah (peace
be upon him), Malik or Sufyan?” He replied, “Malik.” They asked, “Who is more
knowledgeable of the traditions of the Companions of the Messenger of Allah, Malik or
Sufyan?” He replied, “Malik.” They asked, “Who is more ascetic, Malik or Sufyan?” He
replied, “That is for you.” It is known that Sufyan al-Thawri was the most knowledgeable
in Iraq at that time in jurisprudence and hadith; for Abu Hanifa, al-Thawri, Muhammad
ibn ‘Abd al-Rahman ibn Abi Layla, al-Hasan ibn Salih ibn Jinni, and Sharik ibn ‘Abd
Allah al-Nakha‘i the judge were contemporaries, and they were the leading jurists of
Kufa in that era. Abu Yusuf first studied jurisprudence with Muhammad ibn ‘Abd al-
Rahman ibn Abi Layla, the judge, then he met Abu Hanifa and found him more learned,
so he adhered to him. He composed the book “Disagreement between Abu Hanifa and
Ibn Abi Layla,” and Muhammad ibn al-Hasan took it from him, and al-Shafi‘i transmitted
it from Muhammad ibn al-Hasan, mentioning his own preference, in the work called
“Disagreement of the Iraqis.”
It is known that Sufyan al-Thawri was the most learned of that group in hadith,
surpassing others in jurisprudence and asceticism. Those who objected among the
people of Iraq and elsewhere objected to what they objected to from... The newly
formulated opinion in Kufa was not rejected by them with regard to Sufyan al-Thawri;
rather, Sufyan is, in their view, the Imam of Iraq. Thus, Ahmad’s preference for the
madhhab (school) of Malik over that of Sufyan is a preference for it over the madhhab of
the people of Iraq. Imam Ahmad has already stated, regarding Malik’s and his own
knowledge of the Book (Qur’an), the Sunnah, and the traditions (athar), what has been
mentioned previously, even though Ahmad ranks Sufyan al-Thawri above all of this
class and holds Sufyan in the utmost esteem. However, he also knew that the madhhab
of the people of Medina (Ahl al-Madina) and its scholars is closer to the Book and the
Sunnah than that of the people of Kufa and their scholars. Ahmad was moderate and
knowledgeable in these matters, giving each person his due; for this reason, he loved
al-Shafi‘i, praised him, supplicated for him, and defended him against those who
criticized al-Shafi‘i or accused him of innovation (bid‘ah), and he would mention his
veneration for the Sunnah and his adherence to it, as well as his knowledge of the
principles of jurisprudence (usul al-fiqh) such as abrogation and abrogated (nasikh wa-
mansukh), the general and the specific (mujmal wa-mufassar), and his affirmation of the
single-report (khabar al-wahid). He debated those who opposed the madhhab of the
people of hadith with reasoning and otherwise. Al-Shafi‘i used to say: “They called me in
Baghdad the supporter of hadith.”
The virtues of al-Shafi‘i and his juridical reasoning (ijtihad) in following the Book and the
Sunnah, and his efforts in refuting those who opposed them, are very numerous. He
followed the madhhab of the people of the Hijaz, having studied according to the
method of the Meccans, the companions of Ibn Jurayj, such as Muslim ibn Khalid al-
Zanji and Sa‘id ibn Salim al-Qaddah. Then he traveled to Malik, learned from him the
Muwatta’, and completed the foundations of the people of Medina, who are more
eminent in knowledge, jurisprudence, and standing than the people of Mecca from the
time of the Prophet (peace be upon him) until the time of Malik. Then he underwent an
ordeal which led him to Iraq, where he met Muhammad ibn al-Hasan, wrote his books,
debated him, and became acquainted with the foundations of Abu Hanifa.
1A The Soundness of the Madhhab of the People of Medina
And his companions, and he received from the people of Iraq what he did of hadith,
then he went to the Hijaz.
He then came to Iraq a second time, during which he composed his earlier book known
as “al-Hujjah.” Ahmad ibn Hanbal met him on this visit to Iraq, and they met in Mecca,
and Ahmad gathered with him and Ishaq ibn Rahwayh, and they debated in Ahmad’s
presence, all together. He did not meet Abu Yusuf nor al-Awza‘i nor others; whoever
claims that in the journey attributed to him is lying. That journey contains many
falsehoods about him, about Malik, about Abu Yusuf, about Muhammad, and about
other scholars—matters not hidden from the learned, and it is of the kind of lies told by
storytellers. Neither Abu Yusuf nor Muhammad ever sought to harm al-Shafi‘i, nor was
Malik’s relationship with him as described in that false account.
Then al-Shafi‘i returned to Egypt and wrote his later book. In his discourse and writing,
he would attribute himself to the madhhab of the people of the Hijaz, saying, “Some of
our companions said,” meaning the people of Medina, or some of their scholars such as
Malik. He would say in the course of his speech, “Some of the easterners disagreed
with us.” Among the companions of Malik, al-Shafi‘i was considered one of them,
attributed to their circle. He chose to reside in Egypt at that time because its people
followed the madhhab of the people of Medina and those similar to them among the
Egyptians, such as al-Layth ibn Sa‘d and his likes. The people of the Maghrib (West)
were partly on this madhhab and partly on the madhhab of al-Awza‘i and the people of
Sham (Greater Syria). The madhhab of the people of Sham, Egypt, and Medina are
close, but the people of Medina are more esteemed by all.
When al-Shafi‘i—may God be pleased with him—was a mujtahid (jurist exercising
ijtihad) in knowledge, and saw among the sahih (authentic) hadith and other evidences
that which obliged him to follow them, even if it contradicted the statements of the
people of Medina, he did what he saw as his duty, composed the “Dictation” (al-Imla’)
on the issues of Ibn al-Qasim, and made manifest his disagreement with Malik where he
differed from him. Al-Shafi‘i did well in what he did and fulfilled his obligation, even if
those who disliked it resented him and harmed him, and a well-known ordeal befell him
in Egypt. May God forgive all believing men and women, living and dead.
Abu Yusuf and Muhammad are the two companions of Abu Hanifa, and they are as
closely associated with him as al-Shafi‘i was with Malik. Perhaps their disagreement
with him is comparable to al-Shafi‘i’s disagreement with Malik, and all of this was in
pursuit of evidence and fulfillment of duty.
Al-Shafi‘i—may God be pleased with him—established the foundations of his
companions, the Book and the Sunnah, and was keen to follow whatever hadith was
authentic in his view. For this reason, ‘Abd Allah ibn al-Hakam used to say to his son
Muhammad, “O my son! Adhere to this man, for he is a man of proofs (hujaj).” He said:
“There is nothing between you and saying: ‘Ibn al-Qasim said’ and being laughed at,
except that you depart from ‘Muhammad said.’ When I went to Iraq, I sat in a circle in
which was Ibn Abi Dawud, and I said, ‘Ibn al-Qasim said.’ He replied, ‘Who is Ibn al-
Qasim?’ I said, ‘A jurisconsult whose fatwas extend from Egypt to the far West.’ I think
he said: I said, ‘May God have mercy on my father.’”
His father’s intention was: seek proof for the statements of your companions and do not
merely imitate. Taqleed (imitation) is only accepted when the one imitated is greatly
esteemed; as for proof, it is accepted in every place. God has obligated every mujtahid
to act according to the knowledge he possesses, and God bestows on one person
knowledge and understanding not given to another. One may be distinguished by
greater knowledge and understanding in a particular field or question, and another in a
different one.
But overall, the madhhab of the people of Medina is, in general, superior to the
madhhabs of the people of the Maghrib (West) and the East. This is evident through
comprehensive principles:
Among them is the principle regarding the lawful and the unlawful (halal and haram)
relating to impurities (najāsah) in water. It is well known that God said in His Book: “And
My mercy encompasses all things, so I shall prescribe it for those who are God-fearing,
give zakat, and believe in Our verses, those who follow the Messenger, the unlettered
Prophet, whom they find written with them in the Torah and the Gospel. He enjoins
upon them what is right and forbids them what is wrong, makes lawful for them the good
things and forbids for them the evil, and relieves them of their burden and the shackles
that were upon them.” (Qur’an 7:156-157) Thus, God has permitted for us good things
and forbidden for us evil things. The evil things (al-khabā’ith) are of two kinds: those
whose filth is inherent due to some quality in them, such as blood, carrion, and pork;
and those whose filth is due to their acquisition, such as what is taken unjustly or by a
prohibited contract, like riba (usury) and gambling (maysir).
As for the first type, everything whose contact is forbidden, such as impurities (najāsah),
its consumption is forbidden; but not everything whose consumption is forbidden is
forbidden to touch, such as poisons. God has forbidden us certain foods and drinks, and
certain types of clothing. It is well known that the madhhab of the people of Medina
regarding beverages is stricter than that of the Kufans; for the people of Medina and the
rest of the regions, and the jurists of hadith, prohibit every intoxicant, and every
intoxicant is khamr (wine) and is forbidden, and whatever intoxicates in large quantity, a
little of it is forbidden. There has been no dispute about this among the people of
Medina, neither the early nor the later generations, whether it is from fruits, grains,
honey, mare’s milk, or anything else. As for the Kufans, they consider nothing to be
khamr except what has fermented from grape juice; if it is cooked before fermenting so
that two-thirds evaporate, it is permitted. Nabidh (date or raisin wine) is forbidden if it is
intoxicating and raw; if it is cooked even slightly, it is permitted even if it intoxicates, and
all other types of nabidh are permitted even if they intoxicate, but they prohibit the
intoxicating part.
As for foods, the Kufans are stricter than the people of Medina; for they, in addition to
prohibiting every carnivore with fangs and every bird with talons, even prohibit lizard
and hyena meat, and in one opinion, horse meat is prohibited. Malik prohibits, with firm
prohibition, only what is mentioned in the Qur’an—those with fangs—otherwise, he
either prohibits them less strictly or, in the well-known opinion, dislikes them. It is also
narrated from him that he disliked birds with talons but did not prohibit any of them nor
dislike them, even if the prohibition… Ranks, and horses are disliked; though
permission and prohibition have also been narrated. Whoever contemplates the
authentic hadith (prophetic traditions) in this chapter will know that the people of Medina
(Ahl al-Madina) are the most adherent to the Sunnah (prophetic practice). For in the
chapter of beverages, there have been established from the Prophet (peace be upon
him) such hadith that, for one who knows them, are among the most widely mass-
transmitted (mutawatir). Indeed, it is authentically reported from him regarding the
prohibition of mixing two substances and the use of certain vessels, in a manner not
hidden from one learned in the Sunnah. As for foods, even if it is said that Malik
opposed authentic hadith concerning prohibition, there is disagreement on this, and the
authentic hadith which he opposed—such as those prohibiting the consumption of the
lizard and others—counterbalance or even outweigh that claim. Moreover, these hadith
are very few in comparison to those concerning beverages.
Furthermore, Malik has supporting reports from the early generations, such as Ibn
Abbas, Aisha, Abd Allah ibn Umar, and others, in addition to his interpretation of the
apparent meaning of the Quran. The one who permits beverages has neither a text nor
analogical reasoning (qiyas) to support him, but rather his statement contradicts both
text and analogy. Moreover, the prohibition of the category of wine is more severe than
the prohibition of impure meats, for wine must be avoided absolutely, and whoever
drinks it is subject to the prescribed punishment (hadd), and it is not permissible to
possess it. Also, Malik permitted the destruction of its substance, following what has
come in the Sunnah regarding that, and forbade its transformation (takhleel); all of this
demonstrates adherence to the Sunnah not found in the opinions of those who opposed
him among the people of Kufa. Thus, since the prohibition by the Lawgiver (the Prophet)
of intoxicating beverages is more severe than his prohibition of foods, the opinion that
accords with the Lawgiver is more correct.
To clarify further, a group among the people of Medina permitted singing, to the extent
that this is narrated from the people of Medina. Isa ibn Ishaq al-Tabba‘ said: Malik was
asked about the indulgence of some people of Medina in singing; he replied, “Only the
licentious among us do so.” It is well known that this is lighter than what is permitted by
those who permit beverages, for there is not in the prohibition of singing the widespread
texts from the Prophet (peace be upon him) that exist regarding intoxicating beverages.
Thus, it is evident that the people of Medina are more adherent to the Sunnah.
One of the greatest issues is the matter of the mixing of lawful and unlawful substances
themselves, such as the mixing of impurities (najāsah) with water and other liquids. The
people of Kufa prohibit any water or liquid into which impurity has fallen, whether little or
much; then they estimate what the impurity does not reach by the extent of movement,
and they measure it as ten cubits by ten cubits. Some say if impurity falls into a well, it
cannot be purified but must be filled in. Some jurists say it should be drawn out by a
specified number of buckets, or all of it, as is known, due to their view that water and
liquid become impure by the occurrence of impurity therein. The people of Medina hold
the opposite: water does not become impure according to them unless its properties
change. However, regarding a small quantity of water, whether it becomes impure with
a small amount of impurity, there are two opinions; Ahmad’s school is close to this, as is
al-Shafi‘i, but these two consider “small” as less than two qullahs, unlike Malik.
Regarding foods, Malik has a different view, and likewise in Ahmad’s school there is
disagreement concerning other liquids. It is known that this is closer to the Quran and
the Sunnah, for the name “water” remains, and the name by which it was permitted
before the occurrence (of impurity) remains, and the Sunnah of the Messenger of Allah
(peace be upon him) concerning the well of Budā‘ah and others indicates that it does
not become impure, and the only opposing hadith is not explicit in the point of dispute,
namely the hadith prohibiting urinating in standing water; it may be restricted to urine by
ruling.
Some have specified that only urination therein is prohibited, not the flow of urine into it.
Some have limited this to a small amount of water. It may be said: the prohibition of
urinating does not necessarily entail impurity; rather, it may be prohibited because it
leads to impurity when it increases. This is established by the fact that there is no
dispute among Muslims that the prohibition of urinating in standing water does not apply
to all waters; rather, seawater is excluded by text and consensus, as are large
reservoirs that cannot be drained, and whose ends do not move by the movement of the
other end; urine does not render them impure by agreement. The authentic and explicit
hadith is not contradicted by any hadith in this generality and possibility.
Likewise, the purity of used water and similar matters—the position of the people of
Medina and those who agree with them regarding its ritual purity (tahārah) is
established by authentic hadith from the Prophet (peace be upon him), such as the
hadith of pouring his ablution water on Jabir and his saying: “The believer does not
become impure,” and similar reports.
Also, the urine of a boy who has not eaten solid food—the position of some people of
Medina and those who agree with them is supported by authentic hadith from the
Prophet (peace be upon him) that are not contradicted by anything. Likewise, the view
of Malik and the people of Medina regarding the manifest impurities in acts of worship is
closest to the authentic hadith and the practice of the Companions. Furthermore, they
do not declare the urine and dung of animals whose flesh is lawful to eat as impure, and
for this there are more than ten proofs from text, ancient consensus, and reasoning,
which we have mentioned elsewhere. Those who declare it impure have only a wording
presumed to be general but is not, or an analogy presumed to equate the branch with
the root, which is not the case.
Since impurities (najāsah) are among the forbidden filth due to their very nature, and
their view in this is taken from the Kufans as in the case of foods, what those declare
impure is more severe. If it is said to him: he has opposed the hadith of lapping and
similar reports regarding impurities, this is like saying he has opposed the hadith of
predatory birds and the like. There is no doubt that this is less in opposition to the texts
than one who declares the dung and urine of edible animals, or some of them, as
impure, or dislikes the leftover water of a cat.
Some have held that all dung and urine are pure except for human urine and feces, and
this view is not further from the evidence than the view of those who declare impure
what the people of Medina declare pure, among the people of Kufa and those who
agreed with them. Whoever contemplates the position of the people of Medina and is
knowledgeable of the Sunnah of the Messenger of Allah (peace be upon him) will be
certain that the position of the people of Medina, which is characterized by ease in this
matter, is closer to the Sunnah of the Messenger of Allah (peace be upon him) than the
position characterized by hardship. The Prophet (peace be upon him) said in the
authentic hadith, when the Bedouin urinated in the mosque and he commanded them to
pour water on his urine: “You were sent to make things easy, not to make things
difficult.” This is the position of the people of Medina and the people of hadith; those
who oppose them say it must be washed and pouring water does not suffice, and they
narrate in this a mursal hadith that is not authentic.
As for the second type of prohibitions, which is that which is prohibited due to its
acquisition—such as what is taken unjustly by various forms of usurpation, theft,
betrayal, and coercion; or what is taken through riba (usury) and gambling; or what is
taken as compensation for a prohibited object or benefit, such as the price of wine,
blood, swine, and idols, the wage of a prostitute, and the fee of a soothsayer, and
similar cases—the position of the people of Medina in this is among the most just of the
schools (madhhab). For the prohibition of injustice and what entails injustice is more
severe than the prohibition of the first category, for Allah has prohibited filth among
foods because it nourishes with a vile nourishment that leads a person to injustice, as
when one is nourished by swine, blood, or predatory animals; for the nourisher is similar
to the one nourished by it, so he becomes in himself prone to tyranny and aggression
according to what he was nourished with.
This harm is permitted for one in dire necessity, for the benefit of preserving life takes
precedence over preventing harm, and since that is incidental, it does not have a
harmful effect in cases of severe need. As for injustice, both little and much is
prohibited, and Allah has forbidden it upon Himself and made it forbidden to His
servants.
He prohibited riba because it entails injustice, for it is taking an excess without
equivalent, and the prohibition of riba is more severe than the prohibition of gambling,
which is betting; for the usurer has taken a definite excess from one in need, whereas
the gambler may acquire an excess and may not, and it may be this one or the other, or
the reverse. The Prophet (peace be upon him) forbade the sale of gharar (uncertainty);
and the sale of mulāmasa (sale by mere touch), munābadhah (sale by throwing), the
sale of fruit before its goodness becomes apparent, and the sale of habal al-habala (the
unborn offspring of a pregnant animal), and the like—anything that involves a type of
gambling. However, he permitted such sales in cases of necessity or when they are
subsidiary to another transaction. For example, he permitted purchasing fruit after its
goodness has become apparent, even if some of its parts have not yet developed, as
long as it remains on the tree until full ripeness; and he permitted the purchase of
pollinated date palms along with their new growth, if the buyer stipulates it, even though
its goodness has not yet become apparent. This is permitted by the consensus (ijma‘) of
the Muslims. Likewise, the same applies to all other trees with visible fruit. The seller is
entitled to the fruit of the pollinated date palm if the buyer does not stipulate it, so the
tree belongs to the buyer while the seller benefits from leaving the fruit on it until the
time of harvest.
It is established in the sahih (authentic) collections that the Prophet (peace be upon
him) commanded the waiving of losses due to calamities, saying: “If you sell fruit to your
brother and it is struck by a calamity, it is not permissible for you to take anything from
your brother’s wealth. Why should one of you take his brother’s wealth without right?”
The school (madhhab) of Malik and the people of Medina (Ahl al-Madina) in this regard
is closer to the Sunnah and justice than the school of those who opposed them from
among the people of Kufa and others. Their opponents held that if a sale is concluded
upon something existent, it is valid whether or not its goodness has become apparent,
and that every contract necessitates the handover of the item immediately, prohibiting
any delay in taking possession. Thus, they said: if one purchases fruit, whether its
goodness has become apparent or not, the contract necessitates immediate cutting; he
is not permitted to delay until the fruit matures, nor to stipulate such a delay. They
considered this taking possession, transferring liability to the buyer rather than the
seller, and they extended this reasoning further. They said: if one sells an item with
delayed delivery, or if one reserves for oneself the benefit of the sold item—such as the
riding of a hired camel or the residence in a house—such a sale is invalid. All of this is a
branch of that analogy (qiyas).
The school of the people of Medina and the people of hadith (ahl al-hadith) differed with
them in all this, following the sound texts, which also agree with sound and just analogy.
For when it is said that the contract necessitates immediate taking possession, it is to
be asked: does the obligation of the contract derive from the Lawgiver (al-shāri‘) or from
the intention of the contracting parties? There is nothing in the speech of the Lawgiver
that necessitates the obligation of immediate possession in every contract. As for the
contracting parties, they are bound by what they mutually agree upon and contract for:
sometimes they agree on immediate exchange, and sometimes on delayed possession,
as in the case of fruit. For an unconditional contract implies immediacy, but they may
defer it if there is benefit in doing so. The same applies to tangible items: if the sold item
contains a benefit for the seller or another—such as a tree with visible fruit, or a leased
item, or an item whose benefit the seller has reserved for a period—this contract does
not entitle the buyer to what is not his or what he does not yet own. If he owns part of
the item, he may sell it excluding its benefit.
Whether it is said that the buyer takes possession of the item, or not, in either case, it
does not matter; for possession in a sale is not essential to the contract as in the case
of a pledge, but ownership is transferred to the buyer before possession, and any
growth or increase belongs to him without dispute, even if the item remains with the
seller. However, the effect of taking possession is either with respect to liability or the
permissibility of disposal. It is established from Ibn ‘Umar that he said: “The Sunnah has
passed that whatever is present and collected at the time of the contract is under the
liability of the buyer.” For this reason, the people of Medina and the people of hadith
adopted this view: that linking liability to the ability to take possession is better than
linking it to actual possession, and this is established by the Sunnah. In the case of fruit
struck by a calamity, if the buyer is unable to harvest it and is excused, then if it is
destroyed, it is under the liability of the seller; but if it perishes after the buyer has
neglected to take possession, then it is under his liability. The same applies to a slave
or riding animal: once the buyer is able to take possession, it is under his liability, as
related from ‘Ali and Ibn ‘Umar.
Whoever makes the right of disposal dependent on liability is mistaken. They all agree
that the benefits of a lease, if lost before the lessee is able to utilize them, are under the
liability of the lessor. The only dispute is whether he may lease it out for more than the
original rental, so as not to profit from what he does not guarantee. The correct view is
that this is permissible, as it is guaranteed for the lessee: if it is lost after he is able to
utilize it, it is under his liability; but if lost before that, it is not. This is also the principle: it
is established in the sahih from Ibn ‘Umar that he said: “We used to buy grain in bulk
during the time of the Messenger of Allah (peace be upon him), and he forbade us to
sell it until we had moved it to our own places.” Ibn ‘Umar is also the one who said: “The
Sunnah has passed that whatever is present and collected at the time of the contract is
under the liability of the buyer.” Thus, it is clear that such grain is under the buyer’s
liability, and he may not sell it until he moves it. The yield of fruits and benefits is for him
to dispose of, but if it is lost before he is able to take possession, it is under the liability
of the seller or lessor. Benefits cannot be disposed of except after they are obtained,
and likewise, fruit is not sold on the tree after harvesting, unlike transported grain.
The Sunnah in this matter differentiates between one who is able to take possession
and one who is not, regarding liability and disposal. Thus, the people of Medina are
closer to the Sunnah in all these rulings, and their view is more just than that of those
who oppose the Sunnah.
There are many similar examples, such as the sale of absent items: some jurists allow
their sale absolutely, even without description; others prohibit their sale even with
description. Malik permitted their sale with description but not otherwise, and this is
more just.
Some require explicit formulas and the alternation of offer and acceptance in contracts,
and the people of Medina made the reference in contracts the customary practice (‘urf)
of the people and their conventions: what people consider a sale is a sale, what they
consider a lease is a lease, what they consider a gift is a gift. This is closer to the Book
and the Sunnah and more just, for some names have a definition in language, like “sun”
and “moon,” and some have a definition in the law, like “prayer” and “pilgrimage.” Some
have no definition in language or law, but refer to customary practice, like “possession.”
It is known that the terms “sale,” “lease,” and “gift” in this context have not been defined
by the Lawgiver nor have a definition in language, but vary according to people’s
customs and conventions: what they consider a sale is a sale, what they consider a gift
is a gift, and what they consider a lease is a lease.
From this, Malik permitted the sale of things hidden in the ground, like carrots and
turnips, and the sale of entire vegetable plots, just as he and the majority permitted the
sale of beans and the like in their pods. There is no doubt that this has been the
practice of Muslims from the time of their Prophet (peace be upon him) until now, and
people’s needs cannot be fulfilled without it. Any supposed uncertainty in such sales is
similar to what is permitted in other transactions, because it is slight and there is need
for it, and each of these individually is permitted, so how much more so when they are
combined?
Likewise, Malik permitted the benefit of trees as an adjunct to the land, such as when...
Whoever leases land or a house in which there is a tree or two, this is closer to the
foundational principles than the opinion of those who prohibit it. A group among the
companions of Ahmad ibn Hanbal even permit this absolutely, and they allow the
guarantee of a garden that contains both land and trees, as was done by ‘Umar ibn al-
Khattab when he accepted the garden from Usayd ibn Hudayr by a third, and he ruled
by what was advanced as a debt upon him. I have elaborated on this issue elsewhere.
This is clarified by mentioning riba (usury), for the prohibition of riba is more severe than
the prohibition of gambling, because it is manifest injustice. God, exalted is He, when
He created His creation of two kinds—rich and poor—obligated the rich to pay zakat
(alms) as a right for the poor, and forbade the rich from riba, which harms the poor. He
said, “Allah destroys riba and gives increase for charities” (Qur’an 2:276), and He said:
“And whatever you give as riba, to increase within the wealth of people, will not increase
with Allah; but what you give as zakat, desiring the countenance of Allah—those are the
multipliers” (Qur’an 30:39). Thus, the wrongdoers withhold zakat and consume riba. As
for gambling, each of the two gamblers may win from the other; the one who loses may
be the rich, or they may both be equal in wealth and poverty. It is the consumption of
wealth through falsehood, so God prohibited it, but it does not contain the injustice to
the needy and its harm as is found in riba. It is well known that injustice to the needy is
greater than injustice to others.
It is also known that the people of Medina (Ahl al-Madina) prohibited riba and forbade
legal stratagems (hiyal) to make it lawful, and blocked the means (sadd al-dhara’i‘)
leading to it. How far is this from those who permit the use of stratagems to obtain it, or
even guide people to such means!
This is further clarified by mentioning examples such as riba al-fadl (usury of excess)
and riba al-nasa’ (usury of delay).
As for riba al-fadl, it is established in sahih (authentic) hadiths, and the majority of the
Companions, Followers, and the four imams agreed that gold, silver, wheat, barley,
dates, and raisins are not to be sold for their own kind except equal for equal; for any
increase is the consumption of wealth through falsehood and injustice. If a debtor
wishes to sell one hundred dinars of deficient weight for one hundred and twenty dinars,
the one who permits stratagems would allow him to add a loaf of bread or a
handkerchief in which the one hundred dinars are placed, or something similar that is
easy for any usurer to do. If this were permitted, the prohibition of riba would have no
benefit nor wisdom, for any usurer could always add some trivial item to the lesser
amount.
Likewise, if they are permitted to agree that he will sell it to him for goods in which the
buyer has no real interest, and then buy it back from him for a higher price, the seeker
of riba could always do this.
It is well known that if anyone other than the Messenger (peace be upon him) were to
prohibit something due to its corruption, and then allow it to be done in a way that yields
no benefit, this would be a flaw and folly, for the corruption remains, and deceit is added
to it. And if there is hardship, it is a hardship with no benefit. How could this be thought
of the Messenger (peace be upon him)? Indeed, even kings, if they prohibited what the
Prophet (peace be upon him) prohibited, and the prohibited person resorted to such
stratagems, they would consider him a mocker and scoffer at their commands. And God
punished the people of Paradise who sought to avoid giving charity by stratagem, and
He punished the town by the sea (the Sabbath-breakers) who made the unlawful lawful
by stratagem, transforming them into apes and swine. The Prophet (peace be upon
him) said: “Do not do as the Jews did, making lawful what God has forbidden through
the slightest of stratagems.”
We have elaborated on the principle of invalidating stratagems and blocking the means
(sadd al-dhara’i‘) in a separate, extensive book, in which we established the school of
the people of Medina (Ahl al-Madina) by the Book, the Sunnah, and the consensus
(ijma‘) of the earliest of the Emigrants and Helpers.
Likewise, riba al-nasa’ (usury of delay): The people of Thaqif, about whom the Qur’an
was revealed, used to have a man approach his debtor at the due date and say, “Will
you pay, or will you increase (the debt)?” If he did not pay, the debtor would increase
the amount and the creditor would extend the term, thus multiplying the debt for the
sake of delay. This is the riba about which there is no doubt, by the consensus of the
predecessors of the ummah, and concerning which the Qur’an was revealed, and its
injustice and harm are manifest.
God, exalted is He, has permitted sale (bay‘) and commerce, and forbidden riba. The
buyer purchases what he benefits from—such as food, clothing, shelter, transport, and
so on. The trader buys what he wishes to sell for profit. But the taker of riba only intends
to take dirhams for dirhams deferred, obligating the other to pay more than he took,
without any benefit accruing to him. He neither sold nor traded; the usurer consumes
wealth through falsehood and injustice, benefiting neither himself nor others through
trade or anything else, but rather spends his dirhams for an increase with no benefit to
himself or to people. If this is their intention, then whatever means they use to achieve
it, corruption and injustice result—such as agreeing that he will sell it and then buy it
back. This is two sales in one sale, and in the Sunan collections, the Prophet (peace be
upon him) said: “Whoever makes two sales in one sale, he gets the lesser of the two, or
it is riba.” Or riba may be achieved by introducing a third party as a legal device, where
one of them buys from him something he has no interest in, so that the usurer may sell
it to his client in riba, then the client returns it to the intermediary for less than the
original price. It is established from the Prophet (peace be upon him) that he cursed the
one who consumes riba, its client, its witness, and its scribe, and he cursed the
intermediary and the one for whom the stratagem is made. Similarly, if they combine
riba with a type of loan, it is established from the Prophet (peace be upon him): “It is not
permitted to combine a loan and a sale, nor two conditions in one sale, nor profit from
what is not guaranteed, nor sell what you do not possess.”
The Prophet (peace be upon him) also forbade muzabana and muhaqala, which is the
purchase of fruits and grain by estimation, and he forbade the sale of a heap of food,
the measure of which is unknown, for a named amount of food, because ignorance of
equality in what requires equality is like knowledge of inequality, and estimation is only
conjecture and guesswork. This is agreed upon among the imams.
It is also established that he permitted ‘ariyya sales, where the owners buy their dates
by estimation as dry dates. Thus, it is permitted to buy a ribawi (usurious) item here by
estimation, and estimation in cases of need stands in place of measurement. This is
among the perfections of the shari‘ah, just as in the case of zakat and division,
estimation stands in for measurement. He used to estimate fruits for their owners for
zakat, and ‘Abd Allah ibn Rawaha used to divide the produce of Khaybar by estimation
by the order of the Prophet (peace be upon him). It is known that when measurement is
possible, it is to be used, but when not possible, estimation stands in its place out of
necessity, like all substitutes in what is known and indicated; for analogy (qiyas) stands
in place of text when the latter is absent, and appraisal stands in place of equivalency
when the named price is lacking due to the impossibility of equivalency or the named
price.
From this category is qiyafah (forensic identification), which is deduction by
resemblance for lineage when inference by other indicators is impossible; for a child
may resemble his father in estimation, and qiyafah and appraisal are substitutes in
knowledge, just as qiyas is to text, and likewise justice in action; for the shari‘ah is
founded upon justice, as God, exalted is He, said: “We sent Our messengers with clear
proofs and sent down with them the Book and the Balance so that people may uphold
justice” (Qur’an 57:25), and “Allah does not burden a soul beyond its capacity” (Qur’an
2:286). God has legislated retribution (qisas) in life, wealth, and honor according to what
is possible, as He said: “Prescribed for you is retribution (qisas) in cases of murder...”
(Qur’an 2:178), and He said... Exalted is He: “And We ordained for them therein: a life
for a life” (the verse), and He said: “And the retribution for an evil deed is an evil like it”
(the verse), and He said: “So whoever transgresses against you…” (the verse), and He
said: “And if you punish, then punish with the like of that with which you were afflicted”
(the verse). Thus, if a man deliberately and wrongfully kills one who is his equal, then
retribution (qisas) is due against him, and it is permissible to do to him as he did, as is
held by the people of Medina (Ahl al-Madina) and those who agree with them, such as
al-Shafi‘i and Ahmad (in one narration), to the extent possible; unless its prohibition is a
right of God, as when he crushes a head—for example, as the archer crushed the head
of the Jew who had crushed the head of the slave girl—this is more complete in justice
than killing with a sword at the neck. If retribution becomes impossible, one resorts to
the blood money (diyya), and the blood money is a substitute when equivalence is
unattainable.
And if he destroys someone’s property, such as when something is destroyed under his
care as a borrower (‘ariyah): he is liable for its equivalent if an equivalent exists, and if
equivalence is impossible, then its value—in dirhams and dinars—is taken as a
substitute for the unattainable equivalent. For this reason, the opinion of those who
obligate equivalence in all things to the extent possible, while considering value, is
closer to justice than that of those who obligate value without equivalence, and this is
reflected in the story of David (Dawud) and Solomon (Sulayman). We have elaborated
on all these matters elsewhere; the purpose here is merely to provide an indication.
Accordingly, permitting the sale of ‘araya (fresh dates on the palm) by estimation (khars)
due to necessity when sale by measure is not possible, is in accordance with the
foundational principles of the Shari‘ah, especially with the establishment of a sound
Sunnah (sunnah sahihah) regarding it, and this is the madhhab (school) of the people of
Medina.
The madhhab of the people of Medina and the people of hadith, and Malik permitted
estimation (khars) in similar cases out of necessity, and this is the very essence of
correct fiqh.
The madhhab of the people of Medina and those who agree with them, such as al-
Shafi‘i and Ahmad, regarding compensation for game (hunting), is that it is guaranteed
by equivalence in form, as the Sunnah and the judgments of the Companions have
established. In the Sunan, it is reported that the Prophet (peace be upon him) ruled that
a ram is the compensation for a hyena, and the Companions ruled that a camel is the
compensation for an ostrich, and a sheep for a gazelle, and similar cases.
Those who differ from them, such as the people of Kufa, only obligate value in
compensation for game, meaning that livestock is purchased for its value, and the value
differs according to time.
As for what is prohibited, there are two types: one prohibited in its essence, and one
prohibited due to its acquisition. Dealings among people are of two types: exchange and
partnership.
Sale (bay‘), lease (ijarah), and similar transactions are exchanges.
As for partnership, it is like ‘inan partnership and other types of partnerships. The
madhhab of Malik regarding partnerships is among the soundest and most just; he
permits ‘inan partnership, partnership of bodies (abdan), and others, and he permits
mudarabah (profit-sharing), muzara‘ah (sharecropping), and musaqah (irrigation
partnership).
Al-Shafi‘i does not permit any partnership except that which is subsidiary to joint
ownership; for partnership is of two kinds: partnership in property (milk) and partnership
in contracts. As for partnership in property, such as heirs sharing inheritance, this does
not require a contract. But if two people enter into a contract, the madhhab of al-Shafi‘i
holds that partnership does not result from the contract, nor does division result from a
contract.
Ahmad holds that partnership is established by contract and division by contract; he
permits ‘inan partnership with differing capital and without mixing, and if the two
partners settle accounts without separation, that is division, so if the capital is lost
afterwards, the loss is not compensated by the profit.
Al-Shafi‘i does not permit partnership of bodies, nor partnership of reputation (wujuh),
nor partnership without mixing of funds, nor stipulating for one party a profit greater than
his share of the capital, since, in his view, the contract has no effect. He permits
mudarabah and some forms of musaqah and muzara‘ah only as exceptions for
necessity, not in accordance with qiyas (analogical reasoning).
As for Abu Hanifa himself, he does not permit musaqah or muzara‘ah, because he
considers them to be a form of lease (ijarah), and lease requires knowledge of the
wage.
Malik, in this matter, is more expansive than both of them, as he permits musaqah for all
types of fruit, along with permitting various types of partnerships, such as ‘inan
partnership and partnership of bodies, but he did not permit muzara‘ah on uncultivated
land (white land), agreeing with the Kufans.
As for the early people of Medina, among the Companions and Successors, they
permitted all of this, and it is also the view of al-Layth, Ibn Abi Layla, Abu Yusuf,
Muhammad, and the jurists of hadith such as Ahmad ibn Hanbal and others.
The doubt that prevented those from permitting such dealings was their assumption that
these transactions are leases, and lease requires knowledge of the wage; then they
permitted mudarabah out of necessity, since money cannot be leased.
The correct view is that these transactions are, in essence, partnerships, not
exchanges; for the lessee seeks to benefit from work, as one seeks to benefit from the
work of a tailor, baker, cook, and the like. But in this matter, work is not the objective;
rather, one offers the benefit of his body, the other offers the benefit of his wealth, so
that both may share in what God provides of profit—they may both gain or both lose.
This is how the Prophet (peace be upon him) dealt with the people of Khaybar, that they
should cultivate it from their wealth for half of what comes out of it in fruit.
What the Prophet (peace be upon him) prohibited in the lease of sharecropping, in the
hadith of Rafi‘ ibn Khadij and others (agreed upon, as mentioned by al-Layth and
others), is that he prohibited leasing for what grows in specific spots or canals, or for a
portion of the straw—since this may yield for one and not the other. Thus, he prohibited
the owner from specifying the crop of a particular plot, just as in mudarabah he
prohibited the worker from specifying a certain amount of profit or the profit of a
particular garment, for that invalidates justice in partnership.
The principle of the people of Medina in this matter is sounder than that of others who
require the wage of equivalence, and the former is the correct view; for the contract is
not upon work, and thus knowledge of the work is not stipulated, and sometimes the
wage of equivalence is greater than the capital and its profit. What is deserved in the
invalid contract is like what is deserved in the valid one; so if the obligation in valid sale
and lease is price and wage, then in the invalid contract, a share of the profit is due, and
likewise in musaqah, muzara‘ah, and others.
What is weak in this matter from the later people of Medina is weaker still in the view of
the Kufans, and it is likely that all of this is from the newly introduced opinion (ra’y
muhdath) for which the early ones were criticized, whereas what the Sunnah and
practice established is justice.
Whoever examines the principles will see that musaqah, muzara‘ah, and mudarabah
are closer to justice than leasing; for leasing is a risk, and the lessee may benefit or may
not, unlike musaqah and muzara‘ah, in which both share in gain and loss, so there is
not the same risk on one side as there is in leasing. As for acts of worship, the
foundation of religion is that nothing is forbidden except what God has forbidden, and
nothing is religion except what God has legislated; for God, Exalted, in Surat al-An‘am
and al-A‘raf, censured the polytheists for forbidding what God had not forbidden, and for
legislating in religion what God had not permitted, as Ibn ‘Abbas said: If you wish to
know the ignorance of the Arabs, read His saying: “And they assigned to God a share of
what He produced of crops and cattle” (the verse); for God reproached the polytheists
for their innovation in forbidding crops and cattle, and for their innovation in shirk, and
He censured them for arguing for their innovations by appeal to divine decree, as He
said: “And those who associate others with God say: ‘If God had willed, we would not
have associated partners’” (the verse). In the Sahih (authentic collection) from ‘Iyad ibn
Himar, from the Prophet (peace be upon him), it is narrated that he said: Allah the
Exalted says: “I created My servants as monotheists (hanīf, inclining toward truth), but
the devils turned them away, and made unlawful for them what I had made lawful, and
commanded them to associate with Me that for which I sent down no authority.” And in
Surat al-A‘raf, He mentioned what they prohibited and what they legislated, and He, the
Exalted, said: “Say: My Lord has only forbidden indecencies…” (the verse), and He
said: “Say: My Lord has commanded justice…” (the verse). Thus, He clarified for them
what He commanded and what He Himself forbade. And He censured them, saying: “Or
have they partners who have legislated for them in religion…” (the verse). This is
elaborated elsewhere.
The point intended is that no one may declare something unlawful except what the
Shari‘ah (revealed law) has declared unlawful; otherwise, the default is non-prohibition,
whether in matters of substances or actions. Nor may anyone legislate a religion as
obligatory or recommended unless there is a shar‘i (legal) proof for its obligation or
recommendation. Once this is understood, the people of Medina (Ahl al-Madina) are the
most devoted to this fundamental principle; they are the most averse among the
inhabitants of the Islamic cities to innovation (bid‘ah). We have pointed out what others
have prohibited of substances and transactions, which they (the people of Medina) do
not prohibit.
As for religion, they are the most adherent among the cities to the prescribed acts of
worship, and the furthest from innovative acts of worship.
There are many examples of this, among them that a group from Kufa and elsewhere
recommended the practice of the people of Medina…
For the one performing ablution (wudu’), ritual bath (ghusl), prayer, and the like, that
they pronounce the intention (niyyah) aloud in these acts of worship, and they said:
Pronouncing it is stronger than mere inward intention, though none of the imams made
its pronunciation obligatory. The people of Medina did not recommend any of this, and
this is correct. The followers of Ahmad (ibn Hanbal) have two opinions; for this is an
innovation (bid‘ah) not done by the Messenger of Allah (peace be upon him) nor his
Companions. Rather, he would commence prayer with the takbir (saying Allahu Akbar),
and would not say anything of these utterances before the takbir, and likewise in his
instruction to the Companions, he taught them to begin with the takbir. So this is an
innovation in the law, and an error in intention, for intending the act is a necessary
matter in the soul, so pronouncing it is mere idle talk, like saying “I intend to eat” before
eating, or “I intend to drink” before drinking, or “I intend to marry” before marrying, or “I
intend to travel” before traveling, and the like.
Also,
Among these is the manner of acts of worship: Malik and the people of Medina do not
permit altering the prescribed manner of worship; so one does not commence prayer
with anything other than the prescribed takbir, which is the saying “Allahu Akbar” (Allah
is Greatest), just as this takbir is prescribed in the adhan (call to prayer) and the
festivals (‘id), and they do not permit reciting the Qur’an except in Arabic, nor do they
permit substituting the specified objects in zakat with what the owner chooses by value.
In the prayer times (mawaqit), they are more adherent to the Sunnah than the people of
Kufa, who recommend advancing the times for Fajr and ‘Asr, and consider the time for
‘Asr when the shadow of everything is equal to its length, which is the end of the time
for Dhuhr, and they make the times for ‘Isha and Maghrib shared for those with an
excuse, such as a menstruating woman who becomes pure, or the insane who regains
sanity, and they permit combining prayers for the traveler whose journey is pressing,
and for the sick, and in rain.
In the prayer for travel, they are moderate; for among the jurists are those who consider
completing the prayer (itmam) better than shortening (qasr), or consider shortening
better but do not dislike completing, rather they see it as apparent and do not shorten
unless intending to shorten. Among them are those who consider completing
impermissible. The people of Medina hold that the Sunnah is shortening, and that if one
completes, it is disliked, and they consider shortening a regular Sunnah and combining
(jam‘) a temporary concession. There is no doubt that this view is closest to the Sunnah.
Similarly, in the regular supererogatory prayers (sunan rawatib), they make witr a single
rak‘ah, even if preceded by shaf‘ (two rak‘ahs). This is more correct than the view of the
Kufans who say: There is no witr except like Maghrib (three rak‘ahs). Allowing both
ways is more correct, but separating (between the rak‘ahs) is better than joining them.
So their view is stronger than that of the Kufans in general, and they do not consider
there to be a regular Sunnah before Jumu‘ah, contrary to those Kufans who disagreed.
Malik does not fix anything with the obligatory prayers, while some Iraqis fixed certain
things by weak hadiths; Malik’s view is closer to the Sunnah.
The people of Medina permit combining and shortening prayers for the pilgrim at ‘Arafat
and Muzdalifah, and shortening at Mina whether one is from Mecca or elsewhere. There
is no doubt that this was the practice of the Messenger of Allah (peace be upon him),
and this is one of the views in the Shafi‘i and Ahmad schools. As for those who say that
shortening is only permitted for those at the travel distance, their view contradicts the
Sunnah, and weaker still is the view of those who say combining is only permitted for
those at the travel distance; it is known that combining has reasons other than long
travel; thus, the view that combining is permitted in short travel as in long travel is
stronger than the view that does not permit it except in long travel.
Some of those from Iraq and elsewhere thought that the Prophet (peace be upon him)
was at Mina, then said: “O people of Mecca, complete your prayer, for we are a
traveling people.” This is false according to the agreement of the hadith scholars; rather,
what is in the Sunan is that he said this when praying in Mecca during the conquest,
and this has also been reported from ‘Umar.
It is reported that when al-Rashid performed Hajj, he ordered Abu Yusuf to lead the
people in prayer, and when he finished he said: “O people of Mecca! Complete your
prayer, for we are travelers.” One of the Meccans said to him: “Do you say this to us,
when from us this Sunnah originated?” He said: “This is your jurisprudence, speaking
while in prayer out of ignorance or forgetfulness does not invalidate the prayer
according to Malik, al-Shafi‘i, and Ahmad in one of the narrations, but it does according
to Abu Hanifa.
If the Meccan had known the Sunnah, he would have said: This is not the Sunnah;
rather, the Prophet prayed two rak‘ahs at Mina, and Abu Bakr and ‘Umar likewise
prayed two rak‘ahs at ‘Arafat and Muzdalifah, and did not command those behind them
from Mecca to complete the prayer there, as is the view of the people of Medina.
Among these is the eclipse prayer (salat al-kusuf), for the Sunnah has been mass-
transmitted (mutawatir) from the Prophet (peace be upon him) that he prayed it with two
bows (rukū‘) in each rak‘ah, and the people of Medina followed this Sunnah, while it was
hidden from the people of Kufa, who forbade it.
Likewise, the prayer for rain (salat al-istisqa’), for it has been established in the
authentic hadith that the Prophet (peace be upon him) performed the prayer for rain,
and the people of Medina hold that it is to be performed for rain, while this Sunnah was
hidden from those in Iraq who denied the prayer for rain.
Among these are the additional takbirs in the festival prayers (‘id), for most of the
Sunnahs and reports agree with the view of the people of Medina: in the first rak‘ah,
seven takbirs including the opening and ihram takbirs, and in the second, five.
Among these is whether the prayer is attained by a rak‘ah or by less than a rak‘ah; the
view of Malik is that it is only attained by a rak‘ah. This is what is authentically
transmitted from the Prophet (peace be upon him) where he said: “Whoever attains a
rak‘ah of the prayer has attained the prayer,” and he said: “Whoever attains a rak‘ah of
Fajr before sunrise has attained it, and whoever attains a rak‘ah of ‘Asr before sunset
has attained it.” So Malik says regarding Jumu‘ah and congregational prayer: it is only
attained by a rak‘ah, and likewise attaining the prayer at the end of its time, and
attaining the time itself, as for a menstruating woman who becomes pure or the insane
who regains sanity before the end of the time.
Abu Hanifa attaches attainment in all cases to the measure of a takbir, even in Jumu‘ah,
saying that if one attains the measure of a takbir, he has attained it. Al-Shafi‘i and
Ahmad agree with Malik in Jumu‘ah, and their views differ in other prayers; most of their
followers agree with Abu Hanifa in the rest. It is known that the view of those who agree
with Malik in all cases is more correct by both textual evidence and analogy. Some have
argued against Malik on the basis of his statement regarding the sahih (authentic)
hadith: “Whoever catches a prostration (sajdah) of the prayer…” However, this is not a
valid argument, for what is meant by “prostration” here is a rak‘ah (unit of prayer), as Ibn
‘Umar said: “I memorized from the Messenger of Allah (peace be upon him) two
prostrations before Zuhr and two after it.” There are many similar examples.
Among these is that the madhhab (school) of the people of Medina (Ahl al-Madina)
holds that if the imam (prayer leader) prays while forgetful of his state of major ritual
impurity (janabah) or minor impurity (hadath), and then becomes aware, he must repeat
the prayer, but the followers (ma’mum) do not. This is what has been transmitted from
the Rightly Guided Caliphs, such as ‘Umar and ‘Uthman. According to Abu Hanifa,
however, all must repeat the prayer. This is also reported as one narration from Ahmad,
but the well-known and established position from him is as Malik says, and it is also the
position of al-Shafi‘i and others. Supporting this is the incident that occurred with Abu
Yusuf: the caliph appointed him to lead the Friday prayer, so he led the people, then
remembered that he was in a state of minor impurity, so he repeated the prayer but did
not command the people to repeat it. When asked about this, he said: “Sometimes
matters become difficult for us, so we take the opinion of our brethren, the people of
Medina”—even though Friday prayer has much controversy, as imamate is a condition
for its validity.
Malik extended this foundational principle to all errors of the imam: if the imam prays
according to his own juridical reasoning (ijtihad) and omits something the follower
believes to be obligatory—such as the imam not regarding the basmalah (recitation of
‘In the Name of Allah, the Most Merciful, the Most Compassionate’) as obligatory, or not
requiring ablution (wudu’) after blood, or after laughter during prayer, or after touching
women, while the follower considers it obligatory—then according to Malik, the prayer of
the follower is valid. This is one of the two opinions from Ahmad and al-Shafi‘i; the other
opinion, like that of Abu Hanifa, is that it is not valid.
The madhhab of the people of Medina is undoubtedly correct, for it is established in
Sahih al-Bukhari that the Prophet (peace be upon him) said: “They lead you in prayer; if
they are correct, then it is for you and for them, and if they err, it is for you and against
them.” This is explicit regarding the issue. Moreover, since the imam prays based on his
ijtihad, his prayer is not to be ruled invalid—do you not see that his judgment is enforced
if he rules by ijtihad? Following him in prayer is even more appropriate.
The objector bases his argument on the assumption that the follower believes the
imam’s prayer to be invalid. This is a mistake, for the imam prays based on his own
ijtihad or imitation (taqlid). If he is correct, he receives two rewards; if mistaken, he
receives one reward, and his error is forgiven. How, then, can it be said that the follower
believes his prayer to be invalid?
Moreover, it is known by mass transmission (tawatur) from the earliest generations of
the ummah that some would pray behind others despite such differences. Al-Shafi‘i and
his peers continued to pray behind the people of Medina, who neither recited the
basmalah silently nor aloud.
It is also reported that al-Rashid underwent cupping and sought a fatwa from Malik, who
ruled that he need not perform ablution. Abu Yusuf then prayed behind him, even
though the madhhab of Abu Hanifa and Ahmad is that discharge of impurity from any
orifice nullifies ablution, while the madhhab of Malik and al-Shafi‘i is that it does not. Abu
Yusuf was asked: “Will you pray behind him?” He replied: “Glory be to Allah! He is the
Commander of the Faithful. Abstaining from praying behind the imams for such reasons
is a hallmark of the innovators (ahl al-bid‘ah), such as the Rafidah and the Mu‘tazilah.”
Thus, when Imam Ahmad was asked about this and gave a fatwa that ablution is
required, the questioner said: “If the imam does not perform ablution, should I pray
behind him?” He replied: “Glory be to Allah! Would you not pray behind Sa‘id ibn al-
Musayyib and Malik ibn Anas?!”
Malik holds that speech by one who is forgetful or ignorant during the prayer does not
invalidate it, according to the hadith of Dhu’l-Yadayn, the hadith of Mu‘awiyah ibn al-
Hakam when he praised a sneezer, and the hadith of the Bedouin who said in prayer:
“O Allah, have mercy on me and on Muhammad, and do not have mercy on anyone
else with us!”
This is also the view of al-Shafi‘i and Ahmad in one of the narrations; the other
narration, like the view of Abu Hanifa, is that such speech invalidates the prayer. They
claim that the hadith of Dhu’l-Yadayn occurred before the prohibition of speech in
prayer, but this is not the case. The hadith of Dhu’l-Yadayn took place after Khaybar, as
witnessed by Abu Hurayrah, who only embraced Islam in the year of Khaybar. The
prohibition of speech occurred before Ibn Mas‘ud’s return from Abyssinia, and Ibn
Mas‘ud witnessed Badr.
The madhhab of the people of Medina regarding supplication (du‘a) in prayer, correction
by reciting Qur’an, tasbih (glorification), and similar matters is broad and in accordance
with the Sunnah, unlike the Kufans, who greatly restricted this and considered all of it to
be forbidden speech.
Among the issues of ritual purity (tahārah) is that Malik considered ablution (wudu’)
necessary after touching the penis or touching women with desire, but not after laughter
in prayer, nor after touching women without desire, nor after discharge from the two
private parts in rare cases, nor after discharge of impurity from other than the two
private parts. Abu Hanifa considered ablution obligatory after laughter in prayer and
after discharge of impurity from the two private parts in all cases, but not after touching
the penis.
It is well known that the hadiths regarding the nullification of ablution by touching the
penis are more firmly established and better known than those regarding laughter in
prayer, for none of the hadith scholars have narrated anything about laughter in prayer
in their Sunan collections; such narrations are weak mursal reports according to the
hadith scholars. For this reason, none of the hadith scholars held that ablution is
required after laughter in prayer, knowing that nothing authentic is established in this
regard.
As for ablution after touching the penis, there are two approaches: some consider it a
devotional act whose rationale is unknown, so it is not far from the legal bases, like
ablution after laughter in prayer. Others do not consider it devotional, and in this case, it
is clearer and stronger.
Regarding touching women, there are three well-known opinions: Abu Hanifa holds that
no ablution is required in any circumstance; Malik and the people of Medina—which is
also the well-known view from Ahmad—hold that if it is with desire, ablution is required,
otherwise not; al-Shafi‘i holds that ablution is required in all cases.
There is no doubt that the opinions of Abu Hanifa and Malik are the well-known views
among the early generations. As for obligating ablution after touching women without
desire, this is an anomalous opinion with no basis in the Qur’an, the Sunnah, or any
report from the predecessors of the ummah, nor is it consistent with the principles of the
Shari‘ah. Touching without desire has no effect in ihram (pilgrimage consecration) or
i‘tikaf (spiritual retreat), whereas touching with desire does; it is not disliked for one who
is fasting, nor does it establish marital relations, nor does it affect any act of worship or
other rulings. Whoever considers it to nullify ritual purity has opposed the legal
foundations. As for the saying of Allah Most High: “or you have touched women (aw
lamastum al-nisa’)”—if what is meant is intercourse, as ‘Umar and others said, then it is
known that the phrase “or you have touched” in the context of ablution is like His saying
regarding i‘tikaf: “Do not have sexual relations with them while you are in retreat in the
mosques” (Qur’an 2:187), and non-lustful touching has no effect there, so likewise here.
Similarly, His saying: “Then if you divorce them before you have touched them
(tamassuhunna)” (Qur’an 2:237).
Moreover, we know that men have always touched women without desire; if ablution
were obligatory in such cases, the Messenger of Allah (peace be upon him) would have
commanded it, and it would have been transmitted and reported. This is like the
argument made against Malik regarding the issue of semen (mani): people have always
experienced wet dreams, and their bodies and clothes are affected by janabah (major
ritual impurity); if washing were obligatory, the Prophet (peace be upon him) would have
commanded it. Yet he never instructed anyone to wash what was soiled by semen,
whether on their body or clothes, though he did instruct menstruating women to wash
menstrual blood from their clothes. It is known that clothes are more often soiled by
janabah than by menstrual blood, so how could he clarify this for menstruating women
and leave unclarified a general rule? It is not permissible to delay clarification beyond
the time of need. What is established in the sahih (authentic) sources is that ‘A’ishah
used to wash semen from the Prophet’s clothes, but this does not indicate obligation, as
it is also established that she used to scrape it off. Furthermore, it is established that
washing it was due to its filthiness, as Sa‘d ibn Abi Waqqas and Ibn ‘Abbas said:
“Remove it from yourself, even if with a stalk of grass, for it is like mucus or saliva.”
If this argument is valid, then the same reasoning applies to ablution after touching
women. Touching women without desire, and touching them with desire with regard to
the obligation of ablution (wudu’) therefrom, is a matter of juridical reasoning (ijtihad)
and ancient dispute. As for touching them without desire, the ruling is as you see.
Likewise, regarding ritual bathing (ghusl) from major ritual impurity (janabah): the Maliki
school (madhhab Malik), and one of the two opinions within the school of Ahmad (Ibn
Hanbal)—indeed, it is what is transmitted from him—hold that one should follow the
Sunnah in this matter. For those who have transmitted the description of the Prophet’s
(peace be upon him) ritual bath, such as ‘A’ishah and Maymunah, did not report that he
washed his entire body three times; rather, they mentioned that after performing
ablution (wudu’) and running his fingers through the roots of his hair, pouring water over
the side of his head, he then poured water over the rest of his body.
Those who recommended repeating the washing three times did so only by analogy
(qiyas) with ablution, but the Sunnah has differentiated between the two.
The Maliki school and the people of Medina (Ahl al-Madina):
It is established that the Prophet (peace be upon him) used to perform ablution with a
mudd (a small measure) and bathe with a sa‘ (four mudds). It is known that if the
Sunnah in ritual bathing was to repeat the washing three times, this amount would not
suffice, for the rest of the limbs—beyond those of ablution—are more than four times as
numerous.
Similarly, with regard to dry ablution (tayammum): among the scholars, some say it is
not obligatory to perform tayammum for every prayer—such as the opinion of Abu
Hanifa. Others say that tayammum must be performed for every prayer, such as the
view of al-Shafi‘i. The Maliki school holds that tayammum is required for the time of
each prayer. This is the most just of the opinions, and it resembles the transmitted
reports (athar) from the Companions (sahabah) regarding the woman experiencing
chronic menstrual bleeding (mustahadah); for this reason, it is the well-known position
among the scholars of hadith (fuqaha’ al-hadith).
Furthermore, the people of Medina obligate zakat in the wealth of partners as if it were
the wealth of a single owner, and they stipulate, for camels exceeding one hundred and
twenty, that for every forty there is a bint labun (a two-year-old she-camel), and for
every fifty a hiqqah (a three-year-old she-camel). This conforms to the letter of the
Prophet (peace be upon him) regarding charity, as narrated by al-Bukhari from the
hadith of Abu Bakr al-Siddiq, and the generality of the Prophet’s letters, such as those
preserved by the family of ‘Umar ibn al-Khattab, the family of ‘Ali ibn Abi Talib, and
others, are in agreement with this.
Those who differ from them among the Kufans require a fresh obligation (istinaf) after
that, so that partnership (khalta) has no effect, and they possess reports (athar)
supporting istinaf, but these do not match the strength of the aforementioned; and if
such reports are authentic, they are abrogated, just as the report that cattle (baqar) are
to be assessed zakat by analogy with sheep (ghanam) was abrogated.
The school of the people of Medina holds that there is no waqs (intermediate
exemption) except in livestock. For gold and silver, additional amounts are assessed
proportionally, as is reported in the traditions (athar). Abu Hanifa, however, makes waqs
dependent on the nisab (minimum threshold): for gold and silver, in his view, there is no
zakat on the waqs, just as with livestock. As for crops subject to ‘ushr (tithe), in his view
there is neither waqs nor nisab; rather, the tithe is due on every amount, great or small,
including vegetables. However, his two companions agreed with the people of Medina,
since it is established from the Prophet (peace be upon him) that he said: “No charity is
due on less than five awsuq (measures), and no charity is due on less than five
camels,” and it is established from him that he did not take charity from vegetables,
along with what has been narrated from him: “There is no charity due on vegetables.”
The school of the people of Medina holds that rikaz (buried treasure) upon which the
Prophet (peace be upon him) said, “One-fifth is due on rikaz,” does not include minerals
(ma‘din); rather, zakat is due on minerals as was collected from the mines of Bilal ibn al-
Harith, as Malik mentioned in his Muwatta’. Whoever reflects on the Muwatta’, its
chapter headings, the reports it contains, and its arrangement, will realize that Malik
intended by this arrangement and these reports to clarify the Sunnah and refute those
who opposed it. Whoever is more knowledgeable of the school of the people of Medina
and Iraq is more aware of the value of the Muwatta’. For this reason, Malik would say:
“A book I compiled over such-and-such years, and you take it in such-and-such days—
how will you comprehend what is in it?” or words to that effect.
Those who differ from this among the people of Iraq consider rikaz to be a term
encompassing both minerals and pre-Islamic hoards.
Likewise, concerning the rites of pilgrimage (manasik), the people of Medina do not see
that the one performing qiran (combining hajj and ‘umrah) should perform more than
one tawaf (circumambulation) and one sa‘y (ritual walk). It is well known that the
authentic (sahih) hadiths from the Prophet (peace be upon him) all support this view.
Those among the Kufans who hold that one should first perform tawaf and sa‘y for
‘umrah, then another tawaf and sa‘y for hajj, rely on narrations from ‘Ali and Ibn Mas‘ud.
Even if these are authentic, they do not oppose the sound Sunnah.
If it is said: “Abu Hanifa holds that qiran is superior; Malik holds that ifrad (performing
hajj alone) is superior; and the scholars of hadith have no doubt that the Prophet (peace
be upon him) performed qiran, as is detailed elsewhere.” It is said: These matters have
been much disputed among people, and the reports concerning them are confused.
There is no group except that it has held a weak opinion in this regard. The established
conclusion from the authentic hadiths is that when the Prophet (peace be upon him)
performed hajj with his Companions, he commanded them to exit their ihram and make
it ‘umrah, except for those who had brought the sacrificial animal (hady). The Prophet
(peace be upon him) had brought the hady, so he did not exit ihram. When they
hesitated, he said: “If I had known then what I know now, I would not have brought the
hady and would have made it ‘umrah.” The Prophet (peace be upon him) had combined
‘umrah and hajj. What the Sunnah indicates is that whoever does not bring the hady,
then tamattu‘ (performing ‘umrah then hajj in one journey) is superior for him; and
whoever brings the hady, then qiran is superior for him, if he combines both in one
journey. But if he travels for hajj and ‘umrah separately, then ifrad is superior for him.
This is agreed upon by the four imams: they agree that if one travels separately for
each, ifrad is superior. The qiran that the Messenger of Allah (peace be upon him)
performed was with one tawaf and one sa‘y; he did not combine two tawafs and two
sa‘ys, as supposed by some followers of Abu Hanifa, nor did he perform only hajj as
supposed by some followers of al-Shafi‘i and Malik. Nor did he perform ‘umrah after
hajj, neither he nor any of his Companions, except for ‘A’ishah regarding her ‘umrah for
which she had menstruated. It is authentically reported that he performed four ‘umrahs,
one of which was in the Farewell Pilgrimage (Hajjat al-Wada‘), and the Prophet (peace
be upon him) did not exit his ihram as supposed by some followers of Ahmad.
Their school is that the one prevented (from completing pilgrimage) (muhsar) is not
required to make up (qada’).
This is more correct than the view of the Kufans, for the Prophet (peace be upon him)
and his Companions were prevented from ‘umrah in the year of al-Hudaybiyyah, then
the following year, the Prophet (peace be upon him) performed ‘umrah, but a group of
those with him did not perform ‘umrah, and all the people of Hudaybiyyah were more
than one thousand four hundred. They were the ones who pledged allegiance under the
tree, and some of them died before the compensatory ‘umrah. Their school is that it is
not recommended for anyone—in fact, it is disliked—to enter the state of ihram before
reaching the appointed place (miqat), whereas the Kufans recommend entering ihram
before it.
The opinion of the people of Medina, which is in accordance with the Sunnah of the
Messenger of Allah (peace be upon him) and the Sunnah of his rightly-guided
successors (khulafa’ al-rashidun): the Prophet (peace be upon him) performed three
‘umrahs before the Farewell Pilgrimage: the ‘umrah of al-Hudaybiyyah, the ‘umrah of al-
Qada’, both of which he entered ihram for at Dhu al-Hulayfah, and the ‘umrah of the
year of Hunayn from al-Ji‘ranah, then the Farewell Pilgrimage, for which he entered
ihram at Dhu al-Hulayfah. He never entered ihram from Medina itself, and the
Messenger of Allah (peace be upon him) would never persist in leaving the superior act,
nor would his successors.
As for the permissibility of exiting ihram if prevented, and the hadith of ‘A’ishah
regarding the Prophet (peace be upon him) perfuming himself before entering ihram
and before tawaf of the House, and the hadith of Ibn ‘Abbas that he continued to recite
the talbiyah until he stoned the Jamrah al-‘Aqabah, and other such reports:
It may be said: If this is compared with what opposes it among the Kufans and others, it
is more numerous; and even in such issues, they followed reports from ‘Umar ibn al-
Khattab, Ibn ‘Umar, and others. The correct position, when the Companions differ, is to
refer to the Sunnah of the Messenger of Allah (peace be upon him); but whoever did not
receive a report of the Sunnah and followed ‘Umar, Ibn ‘Umar, and the like, his position
is weightier than one who missed more than what was missed by the people of Medina,
and who did not have a precedent like the precedent of the people of Medina.
Among these matters is the sanctuary (haram) of Medina the Radiant (al-Madina al-
Nabawiyya): the hadiths have reached the level of mass transmission (tawatur) from the
Prophet (peace be upon him) from multiple chains affirming its sanctuary, and it is also
authentically reported from him that he decreed the penalty for one who cuts down its
trees is that his property be forfeited to the one who finds him. The school of the people
of Medina and those who agree with them, such as al-Shafi‘i and Ahmad, is that it is
also inviolable (haram), although there is dispute among them regarding the penalty for
hunting within it.
Those who differed in this... And among the Kufans, there were those to whom these
Sunnah traditions did not reach; yet some of their followers began to oppose this by
citing, for example, the hadith of Abu ‘Umayr and the hadith concerning wild beasts. If
these were equal in authenticity to the aforementioned traditions, it would not be
permissible to oppose the latter with them. However, those are mass-transmitted
(mutawatir) traditions, while the hadith of Abu ‘Umayr is interpreted as referring to game
hunted outside Medina and then brought into it, and likewise the hadith concerning wild
beasts, if its authenticity is established.
If it is supposed that the two are contradictory, then it would be analogous to the
prohibition concerning Medina, for the traditions regarding the sanctuary were narrated
by Abu Hurayrah and others whose companionship with the Prophet (peace be upon
him) was late; whereas the Prophet’s entry with Abu Talha occurred at the beginning of
the migration, or that when two texts conflict, one of which is the school (madhhab) of
the people of Medina (Ahl al-Madina) transmitting from the original source and the other
negating and maintaining the original ruling, the transmitter (naql) is preferred. For when
the transmitter is given precedence, the determination of the ruling is required only
once, whereas if the maintainer is preferred, the ruling would change twice. Thus, if it is
said that the hadith of Abu ‘Umayr came after the traditions prohibiting Medina, it would
mean that it was first prohibited and then permitted; and if it is supposed that it was
before that, it would only entail that it was prohibited after being permitted, and there is
no doubt about this. And Allah knows best.
As for matters of marriage, there is no doubt that the school of the people of Medina
regarding the invalidity of the marriage of a muhallil (one who marries a divorced
woman so she can remarry her first husband) and the marriage of shighar (exchange
marriage without dowry) is more in accordance with the Sunnah than those who did not
invalidate these from among the people of Iraq; for it is established from the Prophet
(peace be upon him) that he cursed the muhallil and the one for whom it was done, and
it is established from his Companions, such as ‘Umar, ‘Uthman, ‘Ali, Ibn Mas‘ud, Ibn
‘Umar, and Ibn ‘Abbas, that they forbade tahlil (contracting a marriage for the purpose of
making a woman lawful for her former husband); no dispensation from anyone is known
in this matter, and this agrees with the principles of the people of Medina.
Among their principles is that intention in contracts is considered, as they treat a prior
condition like a concurrent condition, and a customary condition like a verbal condition.
For these reasons, they invalidated the marriage of the muhallil, the dissolution of oaths
made as a stratagem to permit what was sworn against, and they invalidated
stratagems by which riba (usury) is made permissible, and similar matters.
Those who disputed with them from among the Kufans and their followers disregarded
intentions in these actions and considered a good intention equivalent to an evil
intention, permitting the display of acts that have no reality or intent, which is a type of
hypocrisy and deceit. As Ayub al-Sakhtiyani said: “They deceive Allah as they deceive
children; if they approached the matter directly, it would be easier for them.” Al-Bukhari
included in his Sahih a book refuting the people of stratagems, and the predecessors
and imams of the Ummah have always denounced those who practiced such things, as
we have detailed in a separate treatise.
The school of the people of Medina
As for shighar marriage, it is established from the Prophet (peace be upon him) from
more than one chain that he prohibited it, but those Kufans who deemed it valid saw no
objection except the lack of announcement of the dowry, and marriage is valid without
naming the dowry. Thus, those who invalidate it have two bases: one is that its basis is
making the private parts of each woman the dowry of the other, which necessitates
sharing in the private parts, as al-Shafi‘i and many of Ahmad’s companions state. A
group invalidates it unless a dowry is named; for them, if a dowry is named, the sharing
in the private parts is negated, and some only invalidate it if it is said: “The private part
of each is the dowry for the other,” for if this is not stated, it is not certain that the private
part is made the dowry. Some invalidate it absolutely, as is explicitly stated in a hadith in
the Sunnah. These three opinions exist in the school of Ahmad and others.
The second basis is its invalidity due to the stipulation of no dowry, and there is a
difference between silence regarding naming the dowry and stipulating the dowry; for
this marriage was a special case for the Prophet (peace be upon him). Thus, if the
dowry is named as something known to be forbidden, such as wine or pork, the
marriage is invalid, as is stated by some of Malik’s companions, and it is one of the two
opinions in Ahmad’s school, and it is closer to the apparent meaning of the Quran and
to the analogy of the principles.
Similarly, the marriage of a pregnant woman or one in her waiting period (‘idda) due to
fornication is invalid in the Maliki school, and this conforms more closely to the
transmitted reports and analogy, lest lawful and unlawful lineage be mixed. Abu Hanifa
differed, permitting the contract but not consummation, while al-Shafi‘i permitted both.
Ahmad agreed and added that he did not permit marriage to a fornicatress until she
repents, due to the indication of the Quran and hadith on the prohibition of marrying a
fornicatress. As for those who claim that this is abrogated and that what is meant is
intercourse, the invalidity of their statement is evident from multiple aspects.
Likewise, the issue of overlapping waiting periods from two men, such as a woman who
marries during her ‘idda or who was intercourse with due to doubt, the Maliki school
holds that the two waiting periods do not overlap, but she observes a waiting period for
each of them. This is what is transmitted from ‘Umar and ‘Ali (may Allah be pleased with
them), and it is the school of al-Shafi‘i and Ahmad, while Abu Hanifa held that they do
overlap. Similarly, the issue of the second husband’s consummation: does it annul less
than three divorces? That is, if a man divorces his wife once or twice, then she marries
another who consummates with her, then returns to the first; according to Malik, she
returns with what remains, and this is the view of the senior Companions such as ‘Umar
ibn al-Khattab and his likes, and it is the school of al-Shafi‘i and Ahmad in his well-
known opinion. Only Ibn ‘Umar and Ibn ‘Abbas, and Abu Hanifa, said she does not
return with what remains.
Likewise, in the issue of ila’ (oath of abstention), the school of the people of Medina, the
jurists of hadith, and others hold that at the end of four months, the husband is
compelled either to fulfill or to divorce. This is what is transmitted from more than a
dozen Companions, and it is indicated by the Quran and the principles from more than
one angle. The Kufans say that the intention to divorce is the end of the waiting period;
if it ends and he does not fulfill, she is divorced, and the utmost that is narrated about
this is from Ibn Mas‘ud, if it is authentic from him.
As for the issue of return by action, such as if he divorces her, does intercourse
constitute a return? There are three opinions: one, that it does constitute a return, as
Abu Hanifa says; the second, that it does not, as al-Shafi‘i says; and the third, that it
constitutes a return with intention, which is the well-known opinion of Malik and the most
just of the three opinions in Ahmad’s school.
And in this amount there is sufficiency as evidence for the soundness of the school of
the people of Medina, by proof and argument, which is the view adopted by Imam Malik
ibn Anas, may Allah have mercy on him. And praise be to Allah, Lord of the worlds.
Islamic Etiquette
Deferred Sales
[See: Deferred Sales]
Islamic Etiquette
Mockery, slander, offensive nicknames, suspicion, spying, backbiting, and gossip are all
prohibited.
1 – Allah the Exalted said: “O you who believe! Let not a people ridicule another people;
perhaps they may be better than them. Nor let women ridicule other women; perhaps
they may be better than them. And do not insult yourselves, nor call each other by
offensive nicknames. Evil is the name of disobedience after faith, and whoever does not
repent, then those are the wrongdoers. O you who believe! Avoid much suspicion;
indeed, some suspicion is sin. And do not spy, nor backbite one another. Would any of
you like to eat the flesh of his dead brother? You would detest it. And fear Allah; surely
Allah is Oft-Returning, Most Merciful.” (Qur’an, al-Hujurat 49:11–12)
And He, the Exalted, said: “And do not obey every habitual swearer, contemptible, one
who goes about with slander…” (Qur’an, al-Qalam 68:10–11)
2 – Malik: from al-Walid ibn ‘Abd Allah ibn Sayyad that al-Mutalib ibn ‘Abd Allah ibn
Hantab al-Makhzumi informed him that a man asked the Messenger of Allah (peace be
upon him): “What is backbiting?” The Messenger of Allah (peace be upon him) said: “It
is to mention about a person that which he dislikes to hear.” He said: “O Messenger of
Allah, even if it is true?” The Messenger of Allah (peace be upon him) said: “If you say
what is false, that is slander (buhtan).”
(1) Surah al-Hujurat, verses 11–12. (2) Surah al-Qalam, verses 10–11.
Etiquette of Eating and Drinking
He said: “O Messenger of Allah, even if it is true?” The Messenger of Allah (peace be
upon him) said: “If you say what is false, that is slander (buhtan).” I said: “This is the
position of the scholars. His statement: (Let not some of you mock others) means: let
none ridicule, despise, or belittle others. (Nor defame one another) means: do not
disparage your brothers who are as your own selves. ‘Al-nabz’ (with the vowel mark)
means a nickname, and ‘al-tanabuz’ is mutual exchange of nicknames, that is, calling
each other by what displeases a person, such as saying to his Muslim brother: ‘O
sinner, O swine, O dog, O donkey.’ (Evil is the name of disobedience after faith) means:
evil is the name ‘Jew’ or ‘Christian’ when many have believed. (Avoid much suspicion)
means that for which there is no evidence, as He, the Exalted, said: ‘And do not pursue
that of which you have no knowledge’ (Qur’an 17:36). ‘Tajassus’ (spying) is seeking out
the faults and private matters of Muslims; and ‘ghibah’ (backbiting) is to mention your
brother in his absence with that which he dislikes. (Would one of you love) means: that
your mentioning someone with evil in his absence, while he is unaware of what you say,
is like eating his flesh while he is dead and cannot feel it—so you would abhor it. When
it was said: (Would one of you love), the answer was: no. So it was said: (Then abhor
it). Why then do you not abhor backbiting, which is like it? The scholars have made six
exceptions to backbiting: seeking redress for oppression, seeking aid in changing a
wrong, seeking a legal verdict, giving sincere advice to Muslims such as criticizing
unreliable narrators, mentioning the open sinner, and identifying someone by a
nickname by which he is known. (Namimah) is carrying tales from one person to
another with the intent of causing corruption. (Al-hamz) is criticizing in one’s absence;
(al-lamz) is criticizing to one’s face.
Al-Musawwa from the hadith of the Muwatta’, vol. 2, pp. 398–399
Etiquette of Eating and Drinking
[See: Eating and Drinking and their Etiquette]
Etiquette of Entering the Bathhouse
[See: The Bathhouse and its Etiquette]
Etiquette of Companionship
The schools (madhhab) of people differ regarding companionship: some prefer
companionship for the sake of mutual benefit and the virtue of brotherhood for God’s
sake; others prefer withdrawal and solitude, as it is closer to safety and because the
conditions of companionship are rarely found. People are of three types: friends (and
they are few), acquaintances (who are the most harmful to you), and those who neither
know you nor you them, so you are safe from them and they from you. As for the friend,
his conditions are seven: (1) he must be sound in his beliefs; (2) he must be pious in his
religion, for if he is an innovator or a sinner, he may draw his companion into his way or
people may think so of him, for a person is upon the religion of his companion; (3) he
must be intelligent, for companionship with a fool is a calamity; (4) he must have good
character, for if he is ill-tempered, you cannot trust his enmity, and you should test him
by angering him—if he becomes angry, leave his company; (5) he must be pure of heart
in your presence and absence, not resentful, not envious, not seeking harm, nor two-
faced; (6) he must be steadfast in loyalty, neither fickle nor changeable; (7) he must
fulfill your rights as you fulfill his, for there is no good in the companionship of one who
does not see for you the same right as you do for him. The rights of a friend are seven:
the first is sharing wealth, with neither keeping anything from the other; the second is
helping with one’s self in fulfilling needs and preferring his need over your own; the third
is agreeing with him in word and assisting him in his aims without opposition or dispute,
for opposition breeds enmity; the fourth is pardoning the slips of the friend and
overlooking his faults—whoever seeks a friend without faults will remain friendless; the
fifth is advising him in his religion and worldly matters; the sixth is sincerity in affection,
openly and secretly, present and absent, and defending him in his absence; the seventh
is praying for him in his absence.
As for all other people, the rights of a Muslim upon another Muslim are ten: to greet him
when met; to visit him when sick; to answer his invitation; to say “may Allah have mercy
on you” when he sneezes; to attend his funeral when he dies; to fulfill his oath if he
swears; to advise him if he seeks advice; to wish for him what you wish for yourself of
good; to withhold from him as much harm as you are able—for the Muslim is the one
from whose hand and tongue the Muslims are safe—and to give him of your good as
much as you can in religion and worldly matters. If you are unable to do anything, then a
kind word suffices. If he is a relative, then add to that the right of kinship through
kindness, visitation, good speech, and bearing with harshness. If he is a neighbor or
guest, then he has the right of hospitality and neighborliness. If he is a servant, then he
has the right of gentleness and fulfillment of his rights in clothing and food. The causes
of affection are three: that you begin your brother with greeting, make space for him in a
gathering, and call him by the name most beloved to him. The sum of good character is
three: refraining from harm, bearing harm, and doing good. The sum of all that is to be
to your brother as you would have him be to you. The best of virtues is to maintain ties
with one who cuts you off, to give to one who withholds from you, and to pardon one
who wrongs you. It is not lawful for a Muslim to shun his brother for more than three
nights; greeting removes shunning, and the better of the two is the one who initiates the
greeting. One must shun the people of innovation (bid‘ah) and disobedience (fusuq), for
love for God’s sake and hatred for His sake are part of faith.
Issue: Two people should not converse privately excluding a third, for that grieves him,
whether in travel or at home; likewise, three should not converse privately excluding
one. The larger the group, the greater the grief, so it is obligatory to prevent it.
Etiquette of Dress
Al-Qawanin al-Fiqhiyyah, pp. 478–479
[See: Dress and its Etiquette]
The Father and His Inheritance
[See: The Laws of Inheritance and their Order]
Delaying the Zuhr Prayer for Coolness
The recommendation of delaying the Zuhr prayer in the summer heat:
1 – Malik: from Zayd ibn Aslam, from ‘Ata’ ibn Yasar, that the Messenger of Allah
(peace be upon him) said: “The severity of the heat is from the blast of Hellfire, so when
the heat is intense, delay the prayer until it cools.” And he said: “The Fire complained to
its Lord, saying: ‘O Lord, some of me has consumed the other,’ so He permitted it two
breaths each year: a breath in winter and a breath in summer.”
2 – Malik: from ‘Abd Allah ibn Yazid, the freedman of al-Aswad ibn Sufyan, from Abu
Salamah ibn ‘Abd al-Rahman, and from Muhammad ibn ‘Abd al-Rahman ibn Thawban,
from Abu Hurayrah, that the Messenger of Allah (peace be upon him) said: “When the
heat is intense, delay the prayer until it cools, for the heat is from the blast of Hellfire.”
And he mentioned that the Fire complained to its Lord, so He permitted it two breaths
each year: a breath in winter and a breath in summer.
I said: al-Shafi‘i said: The delaying (ibrād) is only when there is an imam in a mosque
frequented by people from afar. Ahmad said: It is to be delayed in summer absolutely.
Al-Baghawi said: This is closer to following (the Sunnah).
Al-Musawwa from the hadith of the Muwatta’, vol. 1, p. 110
The Son and His Inheritance
[See: The Laws of Inheritance and their Order]
Urine of Cattle and Sheep
1 – Malik said: The people of knowledge do not see any obligation on one upon whom
some urine of cattle, camels, or sheep falls, nor upon his garment, to wash it; they do,
however, require one upon whom falls the urine of beasts of burden—horses, mules, or
donkeys—to wash it. The distinction between them is that the first are those whose milk
is drunk and whose meat is eaten, whereas the latter are not. I asked some people of
knowledge about this, and they told me so.
Al-Mudawwana al-Kubra 1/21
Abu Bakr al-Siddiq
On
Abu Bakr al-Siddiq (may Allah be pleased with him)
The biography and virtues of Abu Bakr al-Siddiq (may Allah be pleased with him):
1 – Malik: from Ibn Shihab, from Humayd ibn ‘Abd al-Rahman ibn ‘Awf, from Abu
Hurayrah, that the Messenger of Allah (peace be upon him) said: “Whoever spends two
of a kind in the way of Allah will be called in Paradise: ‘O servant of Allah, this is good!’
Whoever was among the people of prayer will be called from the gate of prayer;
whoever was among the people of jihad will be called from the gate of jihad; whoever
was among the people of charity will be called from the gate of charity; and whoever
was among the people of fasting will be called from the gate of al-Rayyan.” Abu Bakr al-
Siddiq said: “O Messenger of Allah, is there any necessity for someone to be called
from all these gates? Will anyone be called from all of them?” He said: “Yes, and I hope
you will be among them.” 2 – Malik: From Zayd ibn Aslam, from his father, that ‘Umar
ibn al-Khattab entered upon Abu Bakr al-Siddiq while he was pulling at his tongue.
‘Umar said, “Enough! May Allah forgive you.” Abu Bakr replied, “This (my tongue) has
led me to many perils.”
3 – Malik: From Ibn Shihab, from ‘Urwah ibn al-Zubayr, from ‘A’isha, the wife of the
Prophet, that she said: “Abu Bakr al-Siddiq had given me twenty wasqs of his property
in al-Ghaba as a gift, but when death approached him, he said, ‘By Allah, my daughter,
there is no one among the people more beloved to me to be well-off after me than you,
nor more grievous to me to be poor after me than you. I had given you twenty wasqs,
but if you had gathered and taken possession of them, they would have been yours.
Today, however, it is property and inheritance. They are for your two brothers and your
two sisters, so divide it according to the Book of Allah.’ ‘A’isha said: ‘I said, O my father,
by Allah, if it were such and such, I would have left it; it is only Asma’, so who is the
other?’ Abu Bakr said, ‘She is that which is in the belly of the daughter of Kharija; I think
it is a girl.’”
4 – Malik: From Yahya ibn Sa‘id, that ‘A’isha, the wife of the Prophet (peace be upon
him), said: “I saw three moons fall into my chamber, so I related my vision to Abu Bakr
al-Siddiq. She said: When the Messenger of Allah (peace be upon him) died and was
buried in her house, Abu Bakr said to her: ‘This is one of your moons, and he is the best
of them.’”
5 – Malik: From Yahya ibn Sa‘id, who said: “It reached me that Abu Bakr al-Siddiq said
to ‘A’isha while he was ill, ‘In how many garments was the Messenger of Allah (peace
be upon him) shrouded?’ She said, ‘In three white Yemeni garments.’ Abu Bakr al-
Siddiq said, ‘Take this garment in which I am clothed, which has some wear or saffron
on it—wash it, then shroud me in it along with two other garments.’ ‘A’isha said, ‘And
why is that?’ Abu Bakr said, ‘The living have more need of the new than the dead; this is
only for decay.’”
6 – Malik: From Abu al-Nadr, the mawla of ‘Umar ibn ‘Ubayd Allah, that it reached him
that the Messenger of Allah (peace be upon him) said regarding the martyrs of Uhud:
“Bear witness to these.” Abu Bakr al-Siddiq said, “O Messenger of Allah, are we not
their brothers? We accepted Islam as they did, and strove as they strove?” The
Messenger of Allah (peace be upon him) said, “Yes, but I do not know what you will do
after me.” He said: Then Abu Bakr wept, then wept again, and said, “Are we to be
changed after you?”
I say: His statement “jad” means the harvested, that is, what is obtained from it, and
“jidad” (with fatha or kasra on the jim) is the cutting of the dates from the palm; “mashq”
(with kasra) is ochre, “mahlah” (with damma or kasra on the mim) is the pus and matter
that melts and flows from the body.
I say: The hadith of Abu al-Nadr is used as evidence for the superiority of those who
died in his (the Prophet’s) time over those who remained after, but this opposes what is
transmitted from the Salaf. However, the meaning intended is a partial merit that does
not contradict the universal. It is necessary for a person to reflect on the meaning of this
hadith so that doubts may be dispelled. Know that when the Prophet (peace be upon
him) gave a companion glad tidings of Paradise, it does not entail that he would not
need any reason among the reasons for entering Paradise at all. Rather, the glad
tidings are an announcement of what the matter will ultimately lead to after the causes
of salvation have been fulfilled. Likewise, when Allah promised the Prophets protection
from sins, it does not mean that they have no means by which they guard themselves
from sins in practice. Rather, Allah’s promise to them brings about for them countless
causes: warnings, visions of Paradise and Hellfire, making known the wretchedness of
sinners, preventing them at times from what they desire by showing them the proof of
their Lord and turning their hearts away, and so on. Just as Allah promised them victory
at Badr, yet fighting was the cause of victory. All of Allah’s promises are of this kind.
When this is understood, we say: Those given glad tidings of Paradise are the most
fearful of Allah, most cautious of places of peril, most apprehensive of change and
alteration, and most reliant upon Allah, Mighty and Majestic. The Prophet (peace be
upon him) was most diligent in admonishing them, reminding them, purifying their souls,
and alerting them to places of error more than with others. He might rebuke them for
what is permissible or disliked, whereas he would not rebuke others for such. This is his
saying: “It does not befit the truthful (al-siddiqin) to be cursers.” If you understand this
secret, then this hadith and all that is similar among the merits of those given glad
tidings is a demonstration of their intense fear, reliance, and of the Prophet’s (peace be
upon him) special care for the purification of their souls, even though he purified the
souls of his entire community, as Allah Most High said: “He purifies them and teaches
them the Book and Wisdom” (Qur’an, Al ‘Imran 3:164).
[Al-Musawwa from the Hadiths of the Muwatta’, vol. 2, pp. 487–490]
Responding to the Call of the Mu’adhdhin (Adhan) It is recommended that the listener
say as the mu’adhdhin says
1 – Malik: From Ibn Shihab, from ‘Ata’ ibn Yazid al-Laythi, from Abu Sa‘id al-Khudri, that
the Messenger of Allah (peace be upon him) said: “When you hear the call (adhan), say
as the mu’adhdhin says.”
Except in the two hayya ‘ala (the calls to prayer and success), one says: “There is no
power nor strength except with Allah.”
[Al-Musawwa from the Hadiths of the Muwatta’, vol. 1, p. 120]
Ijarah (Hire/Lease)
1 – Allah Most High said about the story of Musa and Shu‘ayb, peace be upon them:
“One of the two women said, ‘O my father, hire him; indeed, the best one you can hire is
the strong and trustworthy.’ He said, ‘I wish to marry you to one of these two daughters
of mine on the condition that you hire yourself to me for eight years; but if you complete
ten, that will be from you. And I do not wish to make it difficult for you. You will find me,
if Allah wills, from among the righteous.’ He said, ‘That is between me and you;
whichever of the two terms I fulfill, there will be no injustice to me, and Allah is a witness
over what we say.’” (Qur’an, al-Qasas 28:26–28)
And Allah Most High said: “And if you wish to have your children nursed, there is no
blame upon you if you pay what is due in a fair manner.” (Qur’an, al-Baqarah 2:233)
I say: In this verse is the permissibility of ijarah (hire/lease) in general, and the
permissibility of ijarah for personal service. The scholars are agreed upon this. It also
indicates that if service is stated in general terms, it is understood according to
customary practice, and ambiguity in this is not harmful in general, because nursing and
pasturing cannot be precisely defined.
[Al-Musawwa from the Hadiths of the Muwatta’, vol. 2, pp. 55–56]
Ijarah of Implements
1 – Sahnun said to Ibn al-Qasim: “Does Malik allow the lease of the qafiz (measuring
vessel), the scale, the bucket, the rope, the axe, and similar things?” Ibn al-Qasim said:
“I asked Malik about the lease of the measure and the scale, and he said there is no
harm in that. So I consider these things similar, and I see the lease of them as
permissible.”
[Al-Mudawwana al-Kubra, vol. 3, p. 395]
Ijarah and its Pillars Ijarah (hire/lease), which is permissible according to the majority of
scholars, has four pillars: (first) the lessee; (second) the employee (ajīr); and the
conditions for both are the same as those for contracting parties in a sale, and it is
disliked for a Muslim to hire himself out to a non-Muslim; (third) the wage; (fourth) the
benefit (manfa‘ah), and for it is required what is required for price and object of sale in
general. As for the details:
Regarding the wage, there are two issues. The first issue: it must be known, contrary to
the literalists (Zahiriyya). It is permissible to hire an employee for service or a riding
animal for its food and clothing according to customary practice, contrary to al-Shafi‘i. If
one says, “Harvest my crop and you will have half of it,” or “Grind it,” or “Press the oil,” if
he owns half of it now, it is permissible; but if he intends half of what comes out, it is not
permissible due to uncertainty.
The second issue: It is not obligatory to pay the wage merely by contract; rather, it is
recommended to pay part of the wage upon receiving the corresponding benefit, unless
there is a condition or custom that necessitates payment with the contract, such as if the
wage is a specified item, fresh food, or similar, or if the lease is established as a debt
upon the employee, then payment is obligatory as it is akin to the capital in a salam
contract. Al-Shafi‘i said the wage becomes obligatory by the contract itself.
As for the benefit (manfa‘ah), two conditions are required: (first) it must be known, either
by time (such as daily or monthly periods), or by the completion of an act (such as
sewing a garment); it is not permissible if it is ambiguous, for that combines work before
and after the term. If he is hired to tend specific sheep, it is necessary to stipulate a
substitute according to Ibn al-Qasim. (Second) The benefit must be lawful, not
prohibited nor obligatory; as for the prohibited, it is impermissible by consensus. As for
the obligatory, such as prayer, adhan, and fasting, it is not permissible to take a wage
for them. It is permissible to hire for the imamate (leading prayer) and maintaining the
mosque, but not for prayer alone; Ibn Habib forbade it whether separately or
collectively, while Ibn ‘Abd al-Hakam permitted it in both cases.
Branch: The wage for performing Hajj is permissible, contrary to some, and the hire of a
stallion for mating with females is permitted, contrary to others. Hiring for teaching the
Qur’an is permissible, contrary to Abu Hanifa. It is permissible to hire for the adhan,
contrary to Ibn Habib.
[Al-Qawanin al-Fiqhiyya, pp. 301–302] [See: Annulment of Ijarah and Lease]
Hiring the employee for produce: 1 — Sahnun asked Ibn al-Qasim: What do you say if I
hire an employee—may I have him bring me the produce according to Malik? Ibn al-
Qasim said: Yes, if he did not stipulate a known tax upon him at the time of hiring. 2 —
Sahnun asked: If he did not stipulate a known tax at the time of hiring, but imposed a
known tax afterwards, is that permissible or not? Ibn al-Qasim said: If he imposed a
known tax, and if he does not bring it, he is not held liable, then there is no harm in that.
Sahnun asked: Is this the view of Malik? Ibn al-Qasim replied: Yes. 3 — Ibn Wahb said:
Al-Layth ibn Sa‘d and ‘Amr ibn al-Harith narrated from Bukayr ibn al-Ashbah that he
said: We see no harm in hiring a man to work with his hands or his riding animal, and
giving him what he earns, if it is clarified at the time of hiring.
Ijarah of a well: 4 — Ibn Wahb from Ibn Lahi‘a from Yazid ibn Abi Habib from Ibn Shihab
said: It is not permissible to impose a specified tax on him, but to employ him on trust,
even if he is given a riding animal to work with. 5 — Ibn Wahb from Makhrama ibn
Bukayr from his father from ‘Abd al-Rahman ibn al-Qasim said: It is not permissible to
stipulate, “I have hired you for such-and-such on condition that you bring me such-and-
such,” for that is not permissible. 6 — Ibn Wahb said: Malik said about a man who hires
another for a year to work for him in the market for such-and-such dinars on condition
that he brings him three dirhams daily: Malik said: That is not permissible, for he has
lent him dinars for silver to a term, if what he gives the employee is silver; and if it is
wheat, he has lent wheat without a known price. Also, the third varies, increasing and
decreasing: if the price is low, it increases; if it is high, it decreases. This is gharar
(uncertainty), and the Messenger of Allah (peace be upon him) forbade the sale of
gharar.
Ibn Wahb from ‘Amir ibn Murrah from ‘Amr ibn al-Harith from Rabi‘ah ibn Abi ‘Abd al-
Rahman said: Regarding a man who hires an employee and buys a donkey, and
instructs his employee to work on it and imposes on him a daily tax of a dirham: Rabi‘ah
said: If a man hires an employee, then gives him a donkey to work on, or a boat to
travel in, or similar, and imposes a fee for that, it is permissible if the employee is
independent in that, but it is not permissible to hold him liable if it falls short.
Ijarah of a well [Al-Mudawwana al-Kubra, vol. 3, p. 404] 1 — Sahnun asked Ibn al-
Qasim: What do you say if I hire a well from a man, and it is in his house or courtyard,
not among the wells for livestock—I hire it from him to water my sheep every month for
a dinar. Is this lease permissible according to Malik? Ibn al-Qasim said: As for what is in
his house, he may sell it and prevent people from it, and so I heard from Malik. As for
his courtyard, I do not know what the courtyard is; if it is set aside for people to drink
from or for their livestock, he should not sell it. If he set it aside for himself as he does
with what is in his house for his own use, and it is his land, and he did not set it aside as
charity for people, then I see no harm in selling or leasing it. 2 — Sahnun asked: Did
Malik dislike selling water from the cisterns of the sky? Ibn al-Qasim said: I asked Malik
about selling water from the cisterns on the road to Tripoli, and he disliked it. 3 —
Sahnun asked: Did Malik dislike selling surplus water from the springs or wells for
crops? Ibn al-Qasim said: There is no harm in selling that. 4 — Ibn al-Qasim said: As for
what is set aside in his house or land for himself, like what people do in their homes, he
has more right to it and its sale is permissible. As for what is made in open country or
land, like the cisterns on the road to the west, he disliked selling them, though he did not
consider it forbidden; most of the basis for this was dislike and the heaviness of its
water. I have explained what I heard from Malik and its reasoning. It is like the wells set
aside for livestock—their owners have priority to its water until they are satisfied, and
whatever remains is for the people except for those passing by for their thirst and their
animals; such people are not prevented, just as they are not prevented from drinking
from a livestock well.
Ijarah of garments and jewelry [Al-Mudawwana al-Kubra, vol. 3, p. 402] 1 — Sahnun
asked Ibn al-Qasim: What do you say if I hire a tent, a carpet, sacks, bags, pots,
utensils, or cushions to Mecca, going and returning—is it permissible to lease these
items according to Malik? Ibn al-Qasim said: Yes, there is no harm in that. 2 — Sahnun
asked: What if I hire these items, and when I return, I say, “They were lost from me at
the beginning”? Ibn al-Qasim said: Malik said: The statement of the lessee is accepted
regarding loss. Sahnun asked: How much rent is due from the renter in such a case?
Ibn al-Qasim said: The renter is liable for the full rent unless he can produce evidence
that they were lost from him. Sahnun asked: What if I hire a garment or tent for a month,
and keep it that month without wearing it—is the wage due or not? Ibn al-Qasim said:
Malik said: The wage is due. Sahnun asked: What if he keeps it after the lease ends
and does not wear it? Ibn al-Qasim said: Malik said: He owes rent for the length of time
he kept the garment without wearing it, but not the same as someone who wore it, since
it was not worn. 4. Sahnun said to Ibn al-Qasim: What do you say regarding the hiring
(ijarah) of household items such as vessels, pots, plates, curtains, tents, canopies, and
personal effects—is this permissible according to Malik? He said: Yes.
5.
Sahnun said to Ibn al-Qasim: What if someone hires a garment to wear for a day
until night, and then it is lost—does he bear liability (daman) according to Malik?
Ibn al-Qasim said: There is no liability upon you according to Malik.
[Al-Mudawwana al-Kubra, vol. 3, p. 394]
6.
Sahnun said: What do you say regarding hiring gold jewelry with gold, or silver
with silver—is this permissible or not? He said: There is no harm in that
according to Malik; Malik has permitted it at times and found it burdensome at
others, and he said: I do not deem it to be manifestly unlawful (haram), and
renting jewelry is not customary among people, but I see no harm in it.
7.
Sahnun said to Ibn Sa‘id: What do you say if I hire a tent to go to Mecca, and
then I rent it out to someone else—is this permissible according to Malik? Ibn al-
Qasim said: If you rent it to someone like yourself, in your situation and
 trustworthiness, and his use of the tent is like yours, and his need for the tent is
like your need, then in my opinion the rental is permissible.
8.
Ibn Wahb from Malik ibn Anas, and Yunus ibn Yazid, and Ibn Abi Dhi’b regarding
the hiring (ijarah) of carrying wine for a Christian, and tending pigs.
Ibn Shihab was asked about a man who rents a house and then sublets it for more than
he rented it for. Ibn Shihab said: There is no harm in it.
Ibn al-Qasim said: And men of knowledge from among the people of knowledge
informed me from Abu al-Zinad, Nafi‘ the client of Ibn ‘Umar, and ‘Ata’ ibn Abi Rabah,
with the same (ruling). And some of them said: The same applies regarding an animal
and a ship.
[Al-Mudawwana al-Kubra, vol. 3, p. 395]
Hiring (ijarah) for carrying wine for a Christian and tending pigs
1. Sahnun said to Ibn al-Qasim: What do you say regarding a Muslim who hires
himself to a Christian to carry wine for him on his animal or on himself—does he
have any entitlement to the wage, or is there any valid contract of hire for him?
Ibn al-Qasim said: Malik said: This hiring is not valid, and I do not see that he is
entitled to any of the named wage, nor to a wage by analogy, whether little or
much. However, Malik said to me regarding a Muslim man who sells wine: Malik
said: I do not see that he should be given any of its price, whether little or much;
so the rent, in my view, is of the same status—I do not see that he should be
given any of the wage, whether little or much.
Sahnun said to Ibn al-Qasim: And likewise, if he rents his shop to a Christian who sells
wine in it? He said: Malik said: There is no good in that, and I see the hiring as invalid.
2.
Ibn al-Qasim said: Thus, I see that any Muslim who hires himself, his slave, his
animal, his house, or anything he owns for any matter involving wine—I do not
see that he should receive any wage, whether little or much. However, if the
wage has been received or not, it should be treated as I have described to you
regarding the price of wine.
3.
Ibn Wahb from Ibn Lahi‘a and Yahya ibn Ayyub from ‘Ata’ ibn Dinar, from
‘Allaman al-Hudhali from Malik ibn Kulthum, that he asked Sa‘id ibn al-Musayyib
about men who work in the market with their animals, and sometimes they carry
wine. He said: Sa‘id ibn al-Musayyib forbade me from that with the strongest
prohibition.
4.
I said: What if a Muslim hires himself to a Christian to sell wine? Ibn al-Qasim
said: I see that the price should be taken and given in charity to the poor, as a
reprimand to the Christian, and the wine should be destroyed by the hand of the
Muslim.
5.
Ibn al-Qasim said: And I see that the wage should be taken from the Christian
and given in charity to the poor, and not given to this Muslim, as a reprimand to
this Muslim, and because the wage is not permissible for this Muslim if his hiring
was for tending pigs. Thus, I see that this Muslim should be disciplined for what
 he did in tending pigs and accepting payment for tending pigs, unless he is
among those excused due to ignorance, in which case he is spared the
punishment, and he is not given anything from this wage, and the wage is given
in charity to the poor, and the wage is not left to the Christian; this is like Malik’s
position regarding wine.
[Al-Mudawwana, vol. 3, pp. 400–401]
Hiring by a minor without the permission of his guardian
1. Sahnun said to Ibn al-Qasim: What do you say if a boy hires himself out while he
is a minor, without the permission of his guardian—is this hiring valid or not? Ibn
al-Qasim said: The hiring is not valid.
Hiring by a minor without the permission of his guardian.
Sahnun said to him: What if he works? Ibn al-Qasim said: He is entitled to the wage that
was agreed upon for him, unless the wage for someone like him is more, in which case
he is entitled to the wage for someone like him.
2. Sahnun said: What if the boy or slave is injured—what is upon the hirer? Ibn al-
Qasim said: If he employed them in work in which they could be injured, then he
is liable for their value or the wage, and the master of the slave has a choice: if
he wishes, he may take the wage and has no right to the value of the slave; if he
wishes, he may take the value of the slave, whatever it may be, and has no right
to the wage.
As for the freeborn boy, the hirer owes the wage for the work the boy performed, the
wage that was agreed upon, unless the wage for someone like him is more than what
was agreed upon, and the blood money (diyah) is upon his kin, because the freeborn is
not like the slave, for the freeborn’s heirs do not have the option as the master of a
slave does, for the slave is merchandise, but the freeborn is not merchandise, and the
blood money is due in every case, and it is the Sunnah that the blood money is
obligatory.
3.
From Sahnun, Ibn Wahb said: And Malik said regarding slaves who are hired out:
There is no liability upon the one who hires them for what befalls them, even if
the masters of the slaves say, “We did not authorize them to hire themselves
out,” except if a slave is hired for dangerous work of a risky nature, for which the
wage is increased many times, such as a well with mud or demolition under walls
and the like—then the one who hired him for this is liable for the slave if it was
without the master’s permission, and this is the established practice among us.
4.
Ibn Wahb said: And Malik said: Whoever employs a slave in strenuous and
dangerous work without the permission of his owners, and he works, is liable if
he is injured, even if the slave has been sent out for hiring, because the
permission was only for hiring in work in which hiring is customary and calamities
are not feared. Permission was not given for risk, such as a well whose mud has
killed its people and the like. If he takes him on a journey without the master’s
permission, he is liable for him. Ibn Wahb said: Yunus said: Rabi‘ah ibn Abi ‘Abd
al-Rahman said: The hirer is liable for the slave in whatever he is employed for, if
the work is of a type for which hiring is proper, and anyone who hires a slave for
a risky hiring in which destruction is feared, is liable, even if the slave has been
 sent out for hiring, because the permission was only for hiring in work in which
hiring is customary and calamities are not feared, and not for risk, such as a well
whose mud has killed its people and the like. As for an adult free man, we know
nothing regarding him except if he is deceived, tricked, or lured into something of
which he has no knowledge, unlike the one who lured him into it.
[Al-Mudawwana al-Kubra, vol. 3, p. 403]
Hiring and the liability of the hirer
[See: Liability of the Hirer]
Hiring physicians
1.
Sahnun said to Ibn al-Qasim: What do you say if I hire an oculist to apply eye
medication for pain every month for a dirham? He said: Malik said regarding
physicians when they are hired for treatment: it is only for recovery—if he
recovers, he is entitled to his fee, otherwise he is entitled to nothing. Malik said:
Unless they stipulate a lawful condition between them and settle between
themselves.
2.
Ibn al-Qasim said: And I see that if he stipulates that he will apply the medication
every day or every month for a dirham, that is permissible if he does not pay him
in advance; he said: If he recovers, it is said that the physician is entitled to the
wage proportionate to that.
Hiring for the removal of impurities (najāsāt)
3. Ibn al-Qasim said: Unless he has sound eyes, but stipulates upon him that... He
applies kohl for him for a month for one dirham, and applies it every day—this is
permissible, for each party has adhered to what was stipulated; this is not
something whose outcome is anticipated, but rather, a man stipulated with the
oculist to apply kohl to him for a month for one dirham, whether his eyes are
healthy or otherwise, with antimony or other substances, so the hire (ijarah) in
this case is valid. Sahnun said: and it is permissible for the payment to be
immediate.
Hiring for Removal of Impurities (najāsah)
Al-Madawwana, vol. 3, p. 398
Sahnun said to Ibn al-Qasim: What is your view if I hire a man to remove this carcass,
or this blood, or this filth from my house—does this hire (ijarah) become valid or not?
Ibn al-Qasim said: There is no objection to this according to Malik. He said: Malik was
asked about a man in whose house a sheep died, and he said to another man: “Carry it
away for me and you may have its skin.” Malik said: There is no good in this On the
Sale of Qur’anic Codices (Mushaf)
4 – Ibn Wahb reported, and ‘Abd al-Jabbar ibn ‘Umar informed me, saying: Ibn
Musayyib used to write Qur’anic codices (mushaf) in those early times—I think he said
during the era of ‘Uthman ibn ‘Affan—and he would sell them, and no one objected to
him.
Ibn al-Qasim said: We did not see anyone in Medina objecting to that. He said: And all
of them saw no harm in it.
Hiring a Teacher and the Instructor of Crafts
5 – Sahnun said, reporting from Anas ibn ‘Iyad from Bukayr ibn Simar from Ziyad, a
mawla of Sa‘d, that he asked ‘Abd Allah ibn ‘Abbas and Marwan ibn al-Hakam about
selling Qur’anic codices and trading in them. They said: “We do not consider it proper to
make it a means of trade, but what your hands have produced—there is no harm in it.”
Malik said: “There is no harm in selling and buying Qur’anic codices.” (al-Mudawwana,
vol. 3, p. 396)
Hiring a Teacher and the Instructor of Crafts
1 – Sahnun said to Ibn al-Qasim: What do you think if I hire a man to teach my child the
Qur’an, to perfect their recitation, for such-and-such dirhams?
Ibn al-Qasim said: Malik said: There is no harm in that. Sahnun said: And what if I hire
him to teach his child the Qur’an, every month for a dirham, or every year for a dirham?
He said: Malik said: There is no harm in that.
2 – Sahnun said to Ibn al-Qasim: And what if I hire him to teach my child the entire
Qur’an for such-and-such (amount)?
He said: There is no harm in that.
3 – Sahnun said: What if I hire him to teach my child writing, every month for a dirham?
Ibn al-Qasim said: There is no harm in that.
Sahnun said: And is this the opinion of Malik?
Ibn al-Qasim said: Malik said: There is no harm in hiring teachers year by year for this,
so the one who hires him to teach his child writing alone—there is no harm in that, just
as Malik said regarding hiring teachers year by year.
4 – Sahnun said: What do you think if I hire a man to teach my child fiqh (jurisprudence)
and the laws of inheritance—does this contract of hire stand or not?
Ibn al-Qasim said: I did not hear anything from him about this, except that he disliked
the sale of books of fiqh and inheritance, so I do not like the hiring for teaching that, and
hiring for teaching both is worse.
Sahnun said: What do you think if a man said to another: “Teach my boy writing for a
year, or the Qur’an for a year, on the condition that the boy’s earnings are between you
and me?”
Ibn al-Qasim said: I do not like this, because neither of them is able to sell (his share)
before the year is up, so this is invalid; and if the slave dies before the year, his work
goes to waste.
6 – ‘Amr ibn Qays from ‘Ata’ ibn Abi Riyyah: He used to teach writing during the era of
Mu‘awiya ibn Abi Sufyan and would stipulate (his wage). Ibn Wahb from Ibn Jurayj said:
I asked ‘Ata’ about the wage of the teacher for teaching writing—did you know anyone
who disliked it?
He said: No. Hafs ibn ‘Umar reported to me from Yunus ibn Yazid from Ibn Shihab that
Sa‘d ibn Abi Waqqas brought a man from Iraq to teach their children writing in Medina,
and they would pay him for that.
Ibn Wahb from Yahya ibn Ayyub from al-Muthanna ibn al-Sabbah, said: I asked al-
Hasan al-Basri about a teacher of writing for boys who stipulates (a wage) from them.
Ibn al-Qasim said: There is no harm in it.
Hiring a Teacher and the Instructor of Crafts
‘Abd al-Jabbar ibn ‘Umar said: Everyone among the people of Medina whom I asked
saw no harm in teaching boys for a wage.
9 – Ibn Luhay‘a from Safwan ibn Sulaym: He used to teach writing in Medina and they
would pay him for that.
10 – Ibn Wahb said: I heard Malik say: There is no harm in taking a wage for teaching
boys writing and the Qur’an.
He said: So I said to Malik: What if he stipulates, along with his wage, something
specific for every ‘Eid al-Fitr and ‘Eid al-Adha?
He said: There is no harm in that.
11 – Sahnun said to Ibn al-Qasim: What do you think if I entrust my boy to a tailor, or a
fuller, or a baker to teach him that craft for a known wage, and I hand him over to them?
Ibn al-Qasim said: Malik said: There is no harm in that.
Sahnun said: And what if I hand him over to them to teach him that craft for the boy’s
work for a year?
He said: Malik said: That is permissible. Others said: With a known wage, it is more
permissible.
12 – Sahnun said to Ibn al-Qasim: What do you think if I hire him to teach my child
poetry?
He said: Malik said: I do not like that.
Sahnun said: What do you think if I hire a scribe to write poetry or a board or a Qur’anic
codex (mushaf) for me?
Ibn al-Qasim said: Malik said: As for writing a Qur’anic codex, there is no harm in that;
but as for poetry and boards, I did not hear anything from Malik about them, and I do not
like it, for he disliked the sale of books of fiqh, so books of poetry are even more
disliked.
(al-Mudawwana al-Kubra, vol. 3, pp. 396–397)
121
Permission to Leave on Friday (Jumʿa)
I said: “He fabricates,” meaning he invents, and in this is an argument for what the
hadith scholars have adopted regarding seeking corroborating narrations and witnesses
to clear a hadith from errors.
From
Al-Musawwa from the hadiths of al-Muwatta [vol. 2 / pp. 338–390]
Permission to leave
on
Friday
If someone is afflicted by an excuse, is he required to seek permission from the Imam to
leave?
1 – Malik said: There is no requirement for one who has a nosebleed or is afflicted by a
matter that necessitates his departure to seek permission from the Imam on Friday if he
wishes to leave. I said: And His statement, the Exalted: “And when they are with him on
a collective matter, they do not leave until they have sought his permission” [Surat al-
Nur 62], is, according to them, applied to jihad. Al-Wahidi generalized it, saying: “On a
collective matter,” meaning on a matter of obedience upon which they are gathered,
such as Friday, Eid al-Adha, Eid al-Fitr, jihad, and similar occasions. He mentioned that
seeking permission on Friday was during the time of the Prophet ‫ﷺ‬, and that the
Prophet ‫ ﷺ‬would grant permission by gesture.
Al-Musawwa from the hadiths of al-Muwatta [vol. 1 / p. 199]
Prisoners of the Muslims
There are four issues:
The first issue: On the ruling of ransom (fidaa’)—It is obligatory to rescue them from the
hands of the disbelievers by fighting; if the Muslims are unable, then ransom with wealth
is obligatory. The wealthy prisoner must ransom himself, and the Imam must ransom
the poor from the public treasury (bayt al-mal). Whatever is lacking becomes incumbent
upon all the Muslims’ wealth, even if it exhausts it. The Imam compels the leaders of the
non-Arabs to ransom Muslims with them, and does not pay them the price.
The second issue:
[1] Surat al-Nur 62
Muslim prisoners
122
Reclaiming the ransom, and whoever ransoms a prisoner by his order may reclaim the
ransom from him by consensus. If he ransoms him without his order or knowledge, he
may also reclaim it from him if he is wealthy, and from the public treasury if he is poor.
The ransom takes precedence over debt. If one spouse ransoms the other, there is no
recourse unless it was by his order; likewise for relatives—fathers, mothers,
grandparents, children, paternal and maternal uncles, brothers and their children,
sisters and their children. If the enemy demands horses and weapons as ransom, they
are given, unlike wine and swine. Sahnun permitted ransom with them, but Ibn al-Qasim
forbade what harms Muslims. Whoever ransoms a prisoner with wine or its like has no
recourse, nor its value. Whoever ransoms prisoners for a thousand [coins], recourse is
upon both the wealthy and poor equally, unless the enemy knows of the wealthy and
targets him.
The third issue: Disagreement between the ransomer and the ransomed—If the
ransomer and the ransomed disagree, the statement of the ransomed is accepted
regarding denial of the ransom’s basis and its amount, even if he claims what is
unlikely, for he can deny its basis. Some said the ransomer’s statement is accepted if
the ransomed agrees to the basis of the ransom. If he says, “I was able to escape
without anything,” he is not pursued if his truthfulness appears and he was ransomed
without his knowledge. If he says, “I would have ransomed myself generally without
this,” and his truthfulness is established, the excess is dropped. Whenever he knows
and does not deny, he is pursued.
The fourth issue: Pledging (ar-Rihān)—It is permissible for the Muslim prisoner to make
a free Muslim his pledge (ransom) in his place; it is permissible for the disbeliever to
pledge a disbeliever from his relatives or others. If he stipulates that the pledged
becomes his slave if the money is not brought, his condition is valid. If he pledges his
son or another, and the ransom is not brought—if there is an excuse, such as death,
imprisonment, or other, the pledge is not enslaved; if there is no excuse, the adult male
or female is enslaved, unlike the minor. It is permissible for the pledge to be forfeited,
unlike other pledges.
Al-Qawanin al-Fiqhiyya / pp. 172–173
Istibra’ (Clearance) from Pregnancy
[See: ‘Idda and Istibra’]
123
Seeking Permission in Oaths
Exception in Oaths
1 – Sahnun ibn Sa‘id: What if a man says, “Upon me is a vow if I speak to so-and-so,
insha’Allah (if Allah wills)?”
Malik said: In this, there is nothing upon him. This is like swearing by Allah, according to
Malik.
2 – Ibn al-Qasim said: Exception in an oath by Allah is permissible, and it is an oath
whose expiation is the expiation for an oath by Allah. So I see it as equivalent to an oath
by Allah, and exception is valid in it; and idle oaths (laghw al-yamin) also occur in it.
3 – Sahnun ibn Sa‘id: What if he says, “By Allah, I will not do such-and-such, if Allah
wills,” then he does it?
Ibn al-Qasim said: Malik said: If he intended the exception, there is no expiation upon
him; but if he intended the statement of Allah in His Book, “And do not say of anything, ‘I
will do that tomorrow,’ except ‘if Allah wills’,” and did not intend the exception, then he
has broken his oath.
4 – Sahnun ibn Sa‘id: What if he swore an oath, then was silent, then made an
exception after the silence?
Ibn al-Qasim said: It is of no benefit, and so said Malik, unless the exception is
immediately continuous. We said to Malik: What if he did not mention the exception at
the beginning of the oath, but when he finished the oath, he mentioned and attached it,
catching the oath with the exception after its conclusion, but he joined the exception to
the oath?
Malik said: If he joined it, then it counts as an exception; but if there is a gap, then it
does not count for him. This happened in Medina, and Malik issued a fatwa on it.
Al-Mudawwana al-Kubra [vol. 33/2]
Exception in Oaths
Exception in Oaths
[See: Expiations and their rulings – Chapter Two]
Ihram for Prayer
[See: Intention and Ihram]
Istinja (Anal Cleansing)
Istinja is sufficient with three stones
124
1 – Malik: From Hisham ibn ‘Urwa from his father, that the Messenger of Allah ‫ ﷺ‬was
asked about anal cleansing (istinja), and he said: “Doesn’t one of you find three
stones?”
I said: Al-Shafi‘i said: Istinja is obligatory, and what is meant is three wipes.
Abu Hanifa said: It is sunnah (recommended), and what is meant is cleanliness (enqā’).
It is recommended to use an odd number in istinja
2 – Malik: From Abu al-Zinad from al-A‘raj from Abu Huraira, that the Messenger of
Allah ‫ ﷺ‬said: “When one of you performs ablution, let him put water in his nose and
then blow it out; and whoever uses stones for cleansing (istijmar), let him use an odd
number.”
I said: Al-Shafi‘i said: It is not permissible to use less than three stones, even if
cleanliness is achieved with fewer; if not achieved, he must increase until it is achieved.
If cleanliness is achieved with an even number, it is recommended to finish with an odd
number. Abu Hanifa said: Cleanliness is recommended, but using an odd number is not
recommended. His interpretation of the hadith is that the odd number refers to three, as
a metaphor for cleanliness.
It is recommended to use water for istinja, but not obligatory
3 – Malik: From Yahya ibn Sa‘id, who heard Sa‘id ibn al-Musayyib asked about ablution
after defecation, and he said: That is the ablution of women.
125
Seeking Protection for a Polytheist
4 – Malik: From Yahya ibn Muhammad Tahlā’ from ‘Uthman ibn ‘Abd al-Rahman, that
his father told him he heard ‘Umar ibn al-Khattab perform ablution with water for what
was beneath his garment.
I said: The meaning of ablution here is washing and cleaning, and this is the view of the
majority of scholars.
Al-Musawwa from the hadiths of al-Muwatta [vol. 1 / pp. 77–78]
Seeking Protection for a Polytheist
If the Imam grants him protection so he may hear the Qur’an and the proofs of Islam, he
is to be granted protection.
Allah the Exalted said: “And if any of the polytheists seeks your protection, then grant
him protection so that he may hear the words of Allah; then deliver him to his place of
safety. That is because they are a people who do not know.” [Surat al-Tawba, verse 6].
I said: This is the general view of the scholars.
Al-Musawwa from the hadiths of al-Muwatta [vol. 2 / p. 326]
Istihada (Non-menstrual bleeding)
[See: Menstruation and Nifas]
Imam’s Substitution: Appointing a Man to Complete the Prayer with the People
1 – Sahnun asked Ibn al-Qasim: What if he says, “O so-and-so, come forward and
speak”—does this make him a substitute (khalifa), and do you see their prayer as
complete, or do you see him as an Imam who intentionally invalidated his prayer? He
said: If he innovated something, he leaves his prayer; he may appoint someone and
leave. If he speaks, it does not harm them, for he is not in prayer.
2 – Sahnun said: If he leaves without appointing a substitute, do the people have the
right to appoint someone? Or should they pray individually after the first Imam has
exited the mosque and left them?
Substitution of the Khatib on Friday
126
3 – Ibn al-Qasim said: I hold that one of them should step forward and lead them in the
remainder of their prayer. This is also the opinion of Malik.
I prefer
He builds
upon it.
4 – Sahnun said: If they pray individually, he said: I did not hear this from Malik nor from
anyone else, but their prayer is valid. If the Imam becomes impure (invalidates his state
of purity) or has a nosebleed, it is proper for him to leave his place. The only harm
would be if he persisted and continued to lead them; but if he does not do so and
leaves, then he has not harmed anyone. If he speaks, and it is in something upon which
the prayer is built, he invalidates it for himself; but if it is not something upon which the
prayer is built, then he is not in prayer due to impurity or otherwise, which does not
[affect the congregation]. Malik said: Regarding an Imam who becomes impure and
appoints a man who has missed a rak‘a (cycle of prayer), he said: When this appointee
reaches his rak‘a, he should sit in his rak‘a, as it is the second for the Imam who
appointed him. This substitute only leads them in the remainder of the Imam’s prayer,
and suffices with what the first Imam recited. Al-Sha‘bi said: His recitation suffices them
if he recited, and his takbir (opening declaration) suffices if he made it, as reported in
the hadith of Waki‘.
He led them
[al-Mudawwana al-Kubra 1/135–136]
Substitution of the Khatib on Friday
 1 – Malik said: Regarding an Imam who becomes impure on Friday while
delivering the sermon: He should appoint another man to complete the remainder
of the sermon and lead them in prayer. He should not complete the remainder of
the sermon after he has become impure.
2 – Ibn al-Qasim said: Regarding an Imam who becomes impure while delivering the
Friday sermon, whether during the sermon, after finishing it but before commencing the
prayer, or after commencing the prayer: All of that is the same. He should appoint
someone to complete the remainder of what was upon him, whether of the sermon or
the prayer. If he is ignorant of this or deliberately leaves it, the congregation should
appoint someone to complete it for them, and their prayer is valid.
127
Prisoners of the Disbelievers
3 – Malik said: If the Imam becomes impure on Friday and leaves without appointing a
substitute, and a man steps forward by himself and leads the congregation, without
them or their Imam appointing him, this suffices for them. It is as if the Imam or
someone after him appointed him, and the ruling for Jumu‘a is the same in this and
other cases.
4 – Malik said: Regarding someone Facing the Qibla in Prayer
In certain issues: among them is that the one entitled to something does not return the
yield he benefited from it, nor does he give rent for it; and among them, if he has
planted the land, the one entitled to it does not have the right to uproot the crops. If
entitlement occurs during the planting period, he is entitled to rent; if it occurs after the
planting period, he is not entitled to rent. Among them, if he has built on it, the entitled
person does not have the right to demolish the building; rather, it is said to the entitled
person: give him the value of his building as it stands, not diminished. If he refuses, it is
said to the other: give him the value of his land without the building. If he refuses, then
they become partners: this one by the value of his land, and that one by the value of his
building. If it is a female slave and he has had intercourse with her, there is no hadd
punishment upon him; and if she bears a child from him, there is disagreement: does
the entitled person take her, or take her value? As for the child, it is agreed he takes
him, but there is disagreement: does he take his value or not? Among them, if the
entitled thing has become the property of the one entitled to it by purchase, he may
return the price to the one who sold it to him. If the seller is in another town and the
entitled person wants to carry the entitled thing to the town where the seller is, to return
the price to him, its value is assessed and he is taken there.
[Al-Qawanin al-Fiqhiyya, 363]
Facing the Qibla in Prayer
It has three sections:
(Section One) Facing the Qibla, which is a condition in the obligatory prayers except in
the prayer of combat (musayafa), and for the rider in travel who fears if he dismounts
from a thief or a wild beast. In such case, prayer is permitted on the mount, facing the
Qibla or otherwise. It is also a condition in voluntary prayers except in travel, in which he
prays wherever his mount turns, signaling (with gestures) for bowing and prostration,
making prostration lighter than bowing, and he does not speak nor turn away. This is on
the condition that the travel is long and he is riding. The one on a ship prays facing the
Qibla; if it turns, he turns. Ibn Habib narrated that he performs voluntary prayer
wherever the ship goes, like the mount.
(Section Two) The worshipers are three: one certain of the Qibla, one exercising ijtihad
(independent reasoning), and one following (taqlid). They are ranked; one may not
move from one to the next except after inability. Certainty is for one praying in Mecca,
and the Prophet’s mihrab in Medina is like the Ka‘ba in Mecca. Ijtihad is for one praying
in other lands if he is able; taqlid is for one unable to exercise ijtihad, so he asks a
knowledgeable Muslim and follows him. If he does not find anyone to follow, it is said he
prays as he wishes, and it is said he prays four prayers in four directions.
Three branches:
(Branch One) The obligation is to face the Ka‘ba, the Sacred House: some said its exact
location, some said its direction. The Qibla of the people of the West is toward the East
and vice versa. The Qibla of the people of Medina, Syria, and Andalusia is toward the
gutter of the Ka‘ba, which is between East and South. Some said the Qibla of Cordoba
and its surroundings is thirty degrees from the southeastern quadrant.
(Branch Two) The Qibla is determined by sunrise and sunset, and it is said by the
direction where the shadow starts increasing at noon. At night, it is determined by the
moon: its tips at the beginning of the month are toward the East, at the end of the month
toward the West; in the middle of the month, at the beginning of the night toward the
East, at the end toward the West. It may also be determined by mountains, winds, and
other means.
(Branch Three) Whoever prays and then realizes he erred in the Qibla repeats (the
prayer) within the time, according to the well-known opinion. Sahnun said: within the
time and after it, in agreement with the two opinions.
(Section Three) On the sutra (barrier) in front of the worshiper: it is prescribed for the
imam and the individual. The sutra of the imam is a sutra for the follower. Its minimum is
the length of a forearm and the thickness of a lance. Its conditions: it must be something
fixed, pure, and not distracting to the heart. So, one does not use a child or a woman or
face those speaking. It is permitted to use camels, cows, or sheep as a sutra. He should
not aim directly at the sutra but incline slightly to the right or left, leaving between him
and it the space of a sheep’s passage; it is said three forearms. If he does not find a
sutra, he prays without it. He does not draw a line on the ground to pray to it, contrary to
Ibn Hanbal. The worshiper should not expose himself to being passed in front of, nor
should anyone pass in front of him; if he does, he should gently repel him.
[Al-Qawanin al-Fiqhiyya, 70–72]
Facing the Qibla for Defecation and Urination
132
1.
Malik said: The hadith that came, “Do not face the Qibla for defecation or
urination,” refers only to open land and not to villages and towns.
2.
Sahnun ibn Sa‘id: May a man have intercourse with his wife facing the Qibla?
According to Malik, he said: I do not recall anything from Malik about this, but I
see no harm in it, since he sees no harm in latrines in towns and villages even if
they face the Qibla.
3.
Malik disliked facing or turning one’s back to the Qibla for urination or defecation
in open land.
4.
From Malik ibn Anas, from Ishaq ibn Abdullah ibn Abi Talha, from Rafi‘ ibn Ishaq,
who heard Abu Ayyub say: The Messenger of Allah (peace be upon him) said:
“When any of you goes to relieve himself or urinate, let him not face the Qibla
with his private parts nor turn his back to it.”
5.
From al-Sha‘bi, regarding facing the Qibla for defecation or urination: He said,
that is only in the open fields, for Allah has servants who pray to Him among His
creation; as for your latrines in your houses, they have no Qibla.
[Al-Mudawwana al-Kubra 7/1]
Islam and Iman
There are two issues:
(First Issue) On their meaning: Islam in language means absolute submission; in the
Sharia, it means submission to Allah and His Messenger by speech of the tongue and
action of the limbs. Iman in language means absolute belief; in the Sharia, it means
belief in Allah, His angels, His books, His messengers, and the Last Day. Thus, Islam
and Iman are distinct according to this, as in His saying, “The Bedouins say: ‘We
believe.’ Say: You have not believed, but say: ‘We have submitted.’” [Quran citation]
They may also be used synonymously, as in His saying, “We brought out from it those
who were believers, and found in it only one house of Muslims.” [Quran citation] They
may also overlap, in general and specific senses: Islam is broader if submission is by
tongue, heart, and limbs, for Iman is specific to the heart; and Iman is broader if we say
it is speech of the tongue, sincerity of the heart, and action of the limbs, which is the
view of many of the early generations. If we say Islam is by tongue and limbs only, that
is another view.
(Second Issue) On their rulings: There are four scenarios—
(First) To combine both: that is, the servant believes in his heart and submits with his
limbs; such a person is sincere with Allah.
(Second) Submission by limbs without belief in the heart: such a person is eternally in
the Fire; he was called in the time of Prophethood a hypocrite, later a heretic (zindiq).
(Third) Belief in the heart and speech of the tongue without submission by the limbs; in
the Sharia this is called a sinful believer, and his fate is subject to Allah’s will.
(Fourth) Belief in the heart without speech or action; if that is due to compulsion or lack
of time, such as one who accepts Islam then dies immediately before he can speak or
act, he is excused and sincere with Allah. If for another reason, there is disagreement
about it.
[Al-Qawanin al-Fiqhiyya, 29–30]
Enjoyment of the Wife
[See: Marital Rights]
Names of Allah Most High
The Messenger of Allah said: “Allah has ninety-nine names; whoever enumerates them
enters Paradise.” [Hadith citation] Are those particular names transmitted from the
Prophet (peace be upon him) as the origin of the hadith, or are they attributed to Abu
Huraira? For Allah Most High has names beyond those specified, some of which appear
in the Quran and hadith, and some are derived from His actions. Know that the names
and attributes of Allah are, in general, divided into three...
[continues] Of its categories are those that pertain to the Essence, to the attributes of
the Essence, and to the attributes of action. When examined in detail according to their
meanings, they are divided into ten categories:
(First) — A name indicating the Essence, which is our saying “Allah,” and it has been
said that it is the Greatest Name of Allah.
(Second) — Names indicating Oneness, such as His names al-Wahid (the One), al-
Samad (the Eternal Refuge), and al-Witr (the Odd/Unique).
(Third) — Names indicating Life, such as al-Hayy (the Living), al-Awwal (the First), and
al-Akhir (the Last).
(Fourth) — Names indicating the origination of creatures, which are the most specific
attributes of Lordship, such as al-Khaliq (the Creator), al-Bari’ (the Maker), and al-Fatir
(the Originator).
(Fifth) — Names indicating Power, such as al-Qadir (the All-Powerful), al-Muntaqim (the
Avenger), and al-Qahhar (the Subduer).
(Sixth) — Names indicating Will, such as al-Murid (the Willer), al-Fa‘al lima yurid (the
Doer of what He wills), al-Qabid (the Withholder), and al-Basit (the Expander).
(Seventh) — Names indicating Perception, such as al-‘Alim (the All-Knowing), al-
Sami‘ (the All-Hearing), and al-Basir (the All-Seeing).
(Eighth) — Names indicating Greatness and Majesty, such as al-‘Azim (the
Magnificent), al-Kabir (the Great), and al-‘Ali (the Most High).
(Ninth) — Names indicating Sovereignty, such as al-Malik (the King), al-Malik (the
Owner), and al-Ghani (the Self-Sufficient).
(Tenth) — Names indicating Mercy, such as al-Rahman (the Most Merciful), al-Rahim
(the Most Compassionate), al-Tawwab (the Acceptor of Repentance), and al-Wahhab
(the Bestower).
The Names of the Prophet, peace and blessings be upon him
al-Qawanin al-Fiqhiyya, p. 20–21
1 — Malik: from Ibn Shihab, from Muhammad ibn Jubayr ibn Mut‘im, that the Prophet,
peace and blessings be upon him, said: “I have five names: I am Muhammad, I am
Ahmad, I am al-Mahi (the Eraser) — through whom Allah erases disbelief, I am al-
Hashir (the Gatherer) — people will be gathered at my feet, and I am al-‘Aqib (the
Last).”
I said: It is said that the meaning of “at my feet” is that he is ahead of them on the Day
of Gathering, and they will need his intercession. It is also said that it means he is the
first for whom the earth will be split open, then it will be split for the people after him.
The meaning of al-‘Aqib is that he is the last of the Prophets, after whom there is no
prophet.
[al-Musawwa min Ahadith al-Muwatta’, vol. 2, p. 473]
Istinja (anal cleansing)
It consists of two sections:
(The first section: On the etiquette of relieving oneself) — That one distances oneself
from people and conceals oneself from them; that one avoids cursed places, which are
the pathways, places of people’s sitting, the shade of walls and trees, and the riverbank;
that one does not urinate in a hole, nor in standing water, nor in the direction of the
wind; that one remembers Allah upon entering by saying: “I seek refuge in Allah from
filth and evil,” and upon leaving says: “Praise be to Allah who removed harm from me
and granted me well-being” — or says: “Your forgiveness”; that one does not face the
qibla nor turn one’s back to it, except if between buildings — in agreement with al-Shafi‘i
— while Ibn Hanbal forbade it absolutely; that one does not speak, that one counts what
removes filth, and that one does not urinate standing unless the ground is soft, like
sand.
(The second section: On istinja with water and istijmar with stones) — It contains five
issues:
(The first issue) — The best is to combine istijmar (cleansing with stones) and istinja
(cleansing with water), giving precedence to istijmar, then sufficing with istinja, then
sufficing with istijmar. It is permissible whether water is available or not. Ibn Habib said:
It is not permissible except when water is unavailable, and it is not permissible to
perform istijmar for semen or madhiy (pre-ejaculate), nor if the impurity exceeds both
outlets or what is close to them.
(The second issue) — The manner of istinja is to pour water onto the left hand before
touching the filth with it, then wash the front (genitalia); if from urine, washing the outlet
alone suffices; if from madhiy, the entire penis is washed, and it is said: as with urine.
Then the anus is washed, pouring water successively and rubbing with the left hand,
relaxing slightly and rubbing thoroughly until clean. One does not use the right hand for
istinja nor touch the penis with it.
(The third issue) — It is permissible, according to the four [Imams], to perform istijmar
with stones or anything similar — any solid, cleansing, pure object that is not food, not
sacred, not wasteful, not someone else’s property, nor dung, bone, or coal, due to the
prohibition regarding these. If one performs istijmar with what is not permissible, it
suffices, contrary to Ibn ‘Abd al-Hakam. The Zahiris said: It is not permissible except
with stones.
(The fourth issue) — The obligation in istijmar is cleansing, even with one stone; the
preferred number is three, and it is said: it is obligatory. If not cleansed, one adds to
make the total an odd number.
(The fifth issue) — Istibra’ (cleansing after urination) must precede istinja, which is the
expelling of what remains in the outlet, and it has no specific limit but is according to
people’s customs. Al-Shafi‘i said: the penis is milked three times.
al-Qawanin al-Fiqhiyya, p. 251/50
Indicating with the index finger during the tashahhud
Gesturing with the index finger in the tashahhud
1 — Malik: from Muslim ibn Abi Maryam, from ‘Ali ibn ‘Abd al-Rahman al-Ma‘adi, who
said: ‘Abdullah ibn ‘Umar saw me playing with pebbles during the prayer. When I
finished, he forbade me and said: Do as the Messenger of Allah, peace and blessings
be upon him, used to do. I said: How did the Messenger of Allah do? He said: When he
sat in prayer, he placed his right hand on his right thigh, grasped all his fingers, and
gestured with the finger next to the thumb, and placed his left hand on his left thigh, and
said: This is how he did.
2 — Malik: from ‘Abdullah ibn Dinar, who said: ‘Abdullah ibn ‘Umar saw me supplicating
and gesturing with two fingers, one from each hand, and forbade me.
Gesturing in prayer
I said: Most scholars consider it recommended to gesture with the right index finger at
the phrase of tawhid (la ilaha illa Allah), and to gesture at the words “except Allah,” and
this is the sound position in the school of Abu Hanifa, as mentioned by Muhammad in
al-Muwatta’.
[al-Musawwa min Ahadith al-Muwatta’, vol. 1, p. 157]
Gesturing in prayer
1 — Malik did not see any problem in a man replying to another with a gesture, and
said: This and that are the same. Malik said: If someone greets a man who is praying,
whether obligatory or supererogatory, let him reply with a gesture by hand or by head.
2 — Ibn Wahb reported from Hisham ibn Sa‘d, from Nafi‘, who said: I heard ‘Abdullah
ibn ‘Umar say: The Messenger of Allah, peace and blessings be upon him, went out to
Quba, and the Ansar heard of him and came to greet him. I said to Bilal or to Suhayb:
How did you see the Messenger of Allah replying to them when they greeted him while
he was praying? He said: He would gesture with his hand.
Gesturing of the one praying with his hand
[al-Mudawwana al-Kubra, vol. 1, p. 98]
If someone greets the one praying, he does not reply verbally but gestures with his
hand
1 — Malik: from Nafi‘ that ‘Abdullah ibn ‘Umar passed by a man who was praying, and
greeted him, and the man replied verbally. ‘Abdullah ibn ‘Umar returned to him and said:
If one of you is greeted while praying, let him not speak but gesture with his hand.
I said: Most jurists hold that one does not reply to the greeting but gestures with his
hand; if one replies verbally, his prayer is invalid. Abu Hanifa said: One does not reply to
the greeting nor gesture with his hand.
[al-Musawwa min Ahadith al-Muwatta’, vol. 1, p. 167]
Drinks
Nabidh (fermented drink)?
Drinks
— Sahnun asked Ibn al-Qasim: Did Malik dislike intoxicants from nabidh?
Ibn al-Qasim said: Malik said: Whatever intoxicates from all drinks is khamr (wine); its
drinker is lashed eighty times, and for its smell, if witnessed that it is the odor of an
intoxicant, whether nabidh or otherwise, he is lashed eighty times.
2 — Sahnun asked: Whether this nabidh is from wheat or barley?
Ibn al-Qasim said: Yes, and sakraka (another drink) and others; according to him, they
are khamr if they intoxicate.
[al-Mudawwana al-Kubra, vol. 4, p. 410]
Drinks
Wine is forbidden, its little and its much, by consensus — meaning grape juice if it
intoxicates. If it does not intoxicate, it is permitted by consensus. As for other
intoxicating drinks made from raisins, dates, honey, wheat, barley, and others, they are
like wine according to the two Imams and Ibn Hanbal. Some said only the quantity that
intoxicates is forbidden, not the small amount. Abu Hanifa said: That made from other
than the palm or vine is not forbidden, whether it intoxicates or not. He did not become
intoxicated, and what is made from dates and raisins, what intoxicates from them is
forbidden, but not a small amount. Ten branches:
First branch: What is considered in grape juice is intoxication, and it is not considered
whether it was cooked or not. It is said: if it is cooked until only a third remains, then
there is no harm in it because the intoxication has gone.
Second branch: Preparing nabidh (infused drinks) is permissible except in gourds and
pitch-coated vessels, in which it is disliked. It is also said that it is disliked to prepare
nabidh in hantom (earthenware) and naqir (wooden vessels), but Abu Hanifa permitted
it in all vessels.
Third branch: It is disliked to sell or drink mixed nabidh, such as dates and raisins
together, even if it does not intoxicate. Some have forbidden the mixture, while others
have permitted it so long as it does not intoxicate.
Fourth branch: It is not lawful for a Muslim to possess wine or anything intoxicating. If
found with someone, it is poured out. There is disagreement about its containers: some
say all should be broken and split; others say only those spoiled by wine should be
broken and not used, but those that can be benefited from after the odor is gone may be
used. It is said: as for leather vessels (ziqaq), they should not be used, but as for large
jars (qilal), water should be boiled in them twice and washed, then they may be used.
Fifth branch: It is not permissible for a Muslim to rent himself, his slave, his animal, or
his house for work involving wine, contrary to Abu Hanifa.
Sixth branch: It is not lawful for a Muslim to deliver wine to a Muslim or non-Muslim,
nor to sell grapes to someone who will make wine from them. If wine is found that was
sold, it should be destroyed and the sale annulled. If the buyer has not paid the price, it
is dropped; if he has paid, it is returned to him, though it is said it should be given as
charity. If a non-Muslim converts to Islam while possessing wine, he pours it out; if he
converts while possessing the price of wine, there is no harm.
Seventh branch: If wine becomes vinegar by itself, it becomes lawful and pure by
consensus. As for making it vinegar by processing, there are three opinions: prohibition
(in agreement with the two Imams), permissibility with dislike, and distinction between
one who made it into wine (then it is not permitted to make it vinegar), and one who had
juice that unintentionally fermented (then it is permitted to make it vinegar). Regarding
eating it according to the prohibition opinion, there are three views.
Eighth branch: In the Mudawwana, Malik was asked about putting fish in wine to make
it into a marinade; he said: I do not see that as permissible and disliked it. Ibn Habib
said it is forbidden, and if it intoxicates, it is forbidden by consensus.
Ninth branch: Al-Qarafi said: Narcotics that cause unconsciousness do not incur the
hadd punishment for their drinker, and a small amount is permitted by consensus, and
neither a little nor a lot is impure because they are not intoxicants; only what intoxicates
is sought.
Tenth branch: It is permissible to eat human milk if collected in a vessel, like other
milks, but Abu Hanifa forbade it and prohibited the sale of any human part.
al-Qawanin al-Fiqhiyya / 194–196
Udhiyya (Sacrifice)
1. Malik said: Udhiyya (sacrifice) is sunnah (recommended) and not obligatory (wajib),
and I do not like for anyone who can afford it to leave it. Al-Shafi'i agreed with him. Abu
Hanifa said: It is obligatory.
Sacrifice is a communal sunnah (sunnah kifaya) for every household.
2. Malik: From ‘Umara ibn Sayyad, that ‘Ata ibn Yasar informed him that Abu Ayyub al-
Ansari informed him: We used to offer one sheep as sacrifice; a man would slaughter it
for himself and his household, then people began to boast and it became a matter of
pride.
3. Malik: From Ibn Shihab, who said: The Messenger of Allah (peace be upon him) did
not slaughter on his behalf and his household except one camel or one cow. Malik said:
I do not know which of the two Ibn Shihab said.
I said: Al-Mahalli said: The camel and the cow suffice for seven people, and the sheep
suffices for one. If he has a household, the sunnah is fulfilled for all of them. The same
applies for each of the seven who share in a camel or cow; thus, the sacrifice is a
communal sunnah for every household, and an individual sunnah for one who has no
household. According to the Hanafis, a sheep suffices only for one, and a cow or camel
only for seven, and they do not distinguish between household and others. They
interpret the hadith to mean that sacrifice is not obligatory except for the wealthy, and in
those times, the wealthy were usually householders, so it was attributed to their
households, meaning they aided him in the sacrifice and ate its meat and benefited from
it.
Seven may share in a camel or cow, even if they are from different households.
4. Malik: From Abu al-Zubayr al-Makki, from Jabir ibn ‘Abdullah, who said: We
slaughtered with the Messenger of Allah (peace be upon him) at al-Hudaybiyyah: a
camel for seven and a cow for seven.
I said: This is the view of the scholars, and they made an analogy between sacrifice and
the hady (ritual offering).
No sacrifice for the unborn fetus.
5. Malik: From Nafi‘, that ‘Abdullah ibn ‘Umar did not offer sacrifice for what was in the
womb of a woman.
I said: This is the view of the scholars.
What is avoided in sacrificial animals.
6. Malik: From ‘Amr ibn al-Harith, from ‘Ubayd ibn Firuz, from al-Bara’ ibn ‘Azib, that the
Messenger of Allah (peace be upon him) was asked: What should be avoided in
sacrificial animals? He gestured with his hand and said: Four—and al-Bara’ would
gesture with his hand and say: My hand is shorter than the hand of the Messenger of
Allah (peace be upon him)—the lame with obvious limp, the one with obvious blindness,
the one with obvious sickness, and the emaciated one that has no marrow.
7. Malik: From Nafi‘, that ‘Abdullah ibn ‘Umar would avoid in sacrificial animals and
camels those that had not grown adult teeth and those with defects in their creation.
I said: They unanimously agree that these four do not suffice, and that it is not
permissible from camels, cows, or goats except those that are thani (have two adult
teeth): thani from camels is what has completed five years, and from cows and goats
what has completed two years and entered the third. The jadh‘ (one-year-old) sheep
suffices according to them. A sheep with a cut ear does not suffice except according to
Abu Hanifa, who said: If what is cut is less than half, it suffices. Thani for sheep and
goats is what has completed one year. Lame means limping; "does not have marrow"
means it has no fat, and marrow is fat.
Do not offer sacrifice before the Imam departs.
8. Malik: From Yahya ibn Sa‘id, from Bashir ibn Yasar, that Abu Burda ibn Niyar
slaughtered his sacrifice before the Messenger of Allah (peace be upon him)
slaughtered on the day of Eid al-Adha, and claimed that the Messenger of Allah (peace
be upon him) ordered him to offer another sacrifice. Abu Burda said: I do not find a
jadh‘ (one-year-old sheep). The Messenger of Allah (peace be upon him) said: "Even if
you only find a jadh‘, then slaughter it."
9. Malik: From Yahya ibn Sa‘id, from ‘Abd ibn Tamim, that ‘Uwaymir ibn Ashqar
slaughtered a sacrifice before dawn on Eid al-Adha, and he mentioned that to the
Messenger of Allah (peace be upon him), who ordered him to offer another sacrifice.
I said: According to the Hanafis, it is not permissible to offer sacrifice until the Imam or
his deputy has prayed, and this is the ruling for city dwellers. As for villagers, they may
slaughter after dawn. According to the Shafi‘is, it is not permissible to offer sacrifice
before the sun has risen to the height of a spear and the time for two light rak‘ahs and
two light sermons has passed; if slaughtered after that, it is valid, whether the Imam has
prayed or not.
Sacrifice is valid on the day of Eid and two days after.
10. Malik: From Nafi‘, that ‘Abdullah ibn ‘Umar said: The days of sacrifice are two days
after Eid al-Adha.
11. Malik: It reached him from ‘Ali ibn Abi Talib the same.
I said: The Hanafis are upon this, and the Shafi‘i school holds that the time for sacrifice
extends until sunset on the last day of al-Tashriq, based on the hadith related by al-
Hakim indicating that.
The sunnah of sacrifice.
12. Malik: From Nafi‘, that ‘Abdullah ibn ‘Umar once offered sacrifice in Medina.
Nafi‘ said: He ordered me to buy him a robust, horned ram, then to slaughter it on Eid
al-Adha in the prayer area of the people. Nafi‘ said: I did so, then carried it to ‘Abdullah
ibn ‘Umar, who shaved his head when the ram was slaughtered, though he was sick
and did not attend Eid with the Muslims. Nafi‘ said: ‘Abdullah ibn ‘Umar used to say:
Shaving the head is not obligatory on the one who offers sacrifice, though ‘Abdullah ibn
‘Umar did it. I said: The uncastrated ram is considered superior by the scholars,
although the castrated one is not disliked; and slaughtering at the prayer place is better
as it manifests the rituals of the religion. It is recommended according to al-Shafi‘i for
one who intends to offer the sacrifice (udhiyya) not to touch his hair or nails during the
ten days, and when he sacrifices, he should shave his head and trim his nails and
moustache, contrary to Abu Hanifa.
[al-Musawwa from the Hadiths of al-Muwatta’ vol. 1 / pp. 225–229]
Udhiyya (Sacrifice)
There are three issues within it:
The first issue: Regarding its type, it must be from the livestock only; if it is born from a
livestock and another species, the mother determines its status. The best is sheep, then
cows, then camels, due to the goodness of their meat; al-Shafi‘i reversed this for
abundance, as with sacrificial gifts, and sheep are better than goats. It is mentioned that
every male type is better than its females, and its females are better than the males of
the type below it, and the uncastrated male is better than the castrated. Ibn Habib said:
The fat castrated is better than the weak uncastrated.
The second issue: Regarding its age, it is the jadha‘ (young) from sheep and the thani
(second year) from other than that and above. As for the jadha‘ from sheep and goats, it
is six months old, some say eight, some say ten, and some say a full year, in agreement
with Abu Hanifa. The thani from them is two years old, in agreement with al-Shafi‘i, and
some say what enters the second year, in agreement with Abu Hanifa. The jadha‘ from
cows is two years old, and the thani is what enters the third year, in agreement with
both of them, and some say four years. The jadha‘ from camels is five years old, and
the thani is six years old.
The third issue: Regarding its attributes, which are three types: recommended, those
preventing sufficiency, and disliked. As for the recommended, it is that it be a fat,
uncastrated, piebald, horned ram, looking with blackness, drinking with blackness, and
walking with blackness; and the piebald is that in which whiteness is more than
blackness. As for what does not suffice, there are three by consensus: the clearly sick,
the emaciated that does not have marrow (i.e., fat), some say that which does not have
bone marrow, and the one-eyed with clear defect even if the eyeball remains, and there
is no harm in whiteness in the eye unless it affects vision. A fourth that does not suffice
according to the two Imams and others, contrary to Abu Hanifa, is the lame, and a fifth
that does not suffice according to the four Imams, contrary to the Zahiris, is the blind, as
well as the broken (limbed); and the scabrous and senile are like the sick if scab or
senility is excessive, likewise the mad if madness is persistent.
As for the disliked, among them are defects of the ear: the one born without an ear, the
split-eared, the pierced-eared, some say one with part of the ear cut from below, and
the one with the ear completely cut; if more than a third is cut, it is not sufficient;
regarding a third, there is disagreement, and a little does not harm. The muqabala is
what is cut from the front of the ear, and the mudabira is what is cut from the back;
some say none of these suffice. Among them is loss of teeth; if the front teeth fall, it
suffices, but if they fall due to old age, there are two opinions, and for slight breakage it
suffices, for much breakage two opinions. Among them are defects of the horn: the
‘adba’ is the broken-horned; there are three opinions: sufficiency, prevention, and
distinction between whether it bleeds or not, which is the famous view; some say the
‘adba’ is the one lacking by creation, and it is also disliked. There is no harm in the
hornless, i.e., created without horns.
(Branch): Whoever buys a sacrificial animal and then it develops a disqualifying defect,
he must replace it; and if his sacrifice’s limb breaks and heals, it suffices.
[al-Qawanin al-Fiqhiyya / pp. 209–210] [See: al-Dahaya (Sacrificial Animals)]
Rulings of the Sacrifice Before Slaughter:
As for before slaughter, there are six issues:
The first issue: Designation. It becomes designated by slaughter by consensus, and by
intention before that, according to disagreement in the madhhab, and by purchase
without intention of sacrifice according to Abu Hanifa, and by vow if designated for it by
consensus. If he says, “I have made this an udhiyya,” it is designated according to one
opinion; then, according to both opinions, if it dies, nothing is required of him, and if he
sells it, he must buy another with its price without keeping any excess; it is preferable to
replace it with one better than it.
The second issue: If one dies before slaughtering his udhiyya, it is inherited from him.
Ibn al-Qasim recommended that it be slaughtered for him, while Ashhab did not see
this.
The third issue: If his udhiyya is seized and its value compensated, he should buy
another with the value; some say he may do as he wishes. If the value does not reach
the price of a sheep, he may give it in charity or do as he wishes, according to the
earlier disagreement.
The fourth issue: Regarding its offspring and yield: If it gives birth before slaughter, it is
good to slaughter its offspring with it, but not obligatory, and it does not suffice for his
sacrifice because it is below the age requirement; if it is born after slaughter and alive, it
is treated like its mother. As for its milk, Ibn al-Qasim said, if its offspring does not drink
it, it should be given in charity, in agreement with Abu Hanifa; Ashhab said he may drink
it if he wishes, in agreement with al-Shafi‘i. As for its wool after slaughter, it is like its
meat, and does not suffice before slaughter because it is an adornment for it; Ibn al-
Qasim said he should not sell it, contrary to Ashhab.
The fifth issue: If the sacrificial animals are mixed before slaughter, each takes one and
offers it, and it suffices.
The sixth issue: It is recommended for one who wishes to offer a sacrifice not to cut his
hair or nails once Dhu al-Hijjah enters until he has sacrificed; Abu Hanifa did not
recommend this, and Ibn Hanbal made it obligatory.
As for its rulings after slaughter, there are four issues:
The first issue: None of the meat, skin, hair, or anything else from the udhiyya may be
sold. Abu Hanifa said it is permissible to sell it for goods, but not for dinars or dirhams,
and ‘Ata’ permitted selling it for anything; it is not to be exchanged for another, contrary
to Ibn Hanbal. Regarding renting out its skin, there are two opinions. The butcher is not
given his wage from its meat or skin, nor the tanner for tanning any of its skins. If it is
gifted or given in charity, may the recipient sell it? There are two opinions: if it is sold,
the sale is void; if it is too late, Ibn al-Qasim said the price should be given in charity and
not used, while Ibn Abd al-Hakam said he may do as he wishes. If it is stolen or seized,
he does not take its price; some say he may take it and give it in charity.
The second issue: If one dies after its slaughter, it is not inherited as wealth, nor sold for
his debt, but his heirs may dispose of it as he could, and may they divide the meat?
There are two opinions.
The third issue: If they are mixed after slaughter, Yahya ibn Umar said it suffices and
they give it in charity and do not eat it; Abd al-Haqq said this does not prevent eating. If
the heads are mixed during roasting, it is disliked to eat them, lest one eat the portion of
one who did not eat his portion; if mixed with roasted heads, it is light because he is
liable. Some say one whose portion is mixed may not demand compensation.
The fourth issue: It is best to eat from the udhiyya and give in charity; if one restricts
himself to one of these, it suffices but is disliked, and some have made it obligatory to
eat from it. There is no set limit for what may be eaten or given in charity; Ibn al-Jallab
preferred to eat less and give more in charity. Abu Hanifa and Ibn Hanbal said: eat a
third, give a third in charity, and store a third. It is disliked to feed a Jew or Christian
from it.
[al-Qawanin al-Fiqhiyya / pp. 211–212]
Necessity and Its Conditions
There is no doubt that the dead animal is permitted for the one in necessity. Then,
consideration is given to the state of necessity, the type of what is permitted, and its
amount. As for necessity, it is fear of death; it is not required to wait until one is on the
verge of death. As for the type of what is permitted, it is anything that wards off hunger
or thirst, such as the dead animal of every animal except the son of Adam, and likewise
blood, pork, impure foods, and impure waters, except for wine, which is only permitted
to ease choking, according to disagreement; it is not permitted for hunger or thirst
because it does not ward them off. Some say it is permitted, but it is not permitted for
medicinal use in the well-known opinion; some say it is permissible, in agreement with
al-Shafi‘i. As for the amount of what is permitted, it is to eat and be satisfied, and if he
fears lack in the future, he may take from it as provision.
Feeding in the expiation for zihar... He who has no need for it may discard it. Al-Shafi‘i
said: He should not take provisions, rather he eats only what suffices to keep him alive.
Branches: The one in dire necessity does not eat the corpse of a human, contrary to al-
Shafi‘i. If he finds both carrion and pork, he prefers the carrion; and if he eats pork, it is
recommended that he slaughter it (properly). If he finds carrion and someone else’s
food, he eats the food if he is sure he will not be accused of theft and guarantees its
value; it is said he does not guarantee it, and he should take only what suffices his need
and not take any as provision, and he should seek food by purchase or as a gift from its
owner who is not in necessity. If the owner refuses, he may be fought by force; if this
leads to killing, it is as with a combatant. The permissibility of eating carrion applies to
the sinner traveling (for sin) according to the well-known opinion, unlike shortening the
prayer and breaking the fast; it is said it is not permitted if he persists in sin.
Feeding in the expiation for ẓihār
[al-Qawānīn al-Fiqhiyya, p. 194]
1 — Sahnun ibn Sa‘id said: What do you say if someone fasts for a month or feeds
thirty poor for his ẓihār, is that sufficient according to Malik? Ibn al-Qasim said: It is not
sufficient according to Malik.
2 — Sahnun ibn Sa‘id said: What do you say if he feeds for his ẓihār, how much does
he feed according to Malik? Ibn al-Qasim said: Malik said he feeds a mudd, a mudd by
the mudd of Hisham, to each poor person. Sahnun asked: Wheat or barley? He said:
Wheat. As for barley, how much does he feed? Malik said regarding oaths’ expiations: If
barley is the staple food of the people of the land, it suffices for him just as wheat does,
and he feeds them from the barley a moderate amount sufficient for satiety; and dates
are like barley if dates are their staple, and he feeds them a moderate amount from it
also in expiations for oaths. I see that he should feed in ẓihār from barley and dates an
equivalent to a mudd of Hisham of wheat satiety, and not feed them the moderate
amount for satiety; rather, the moderate satiety is only for expiations of oaths.
3 — Sahnun ibn Sa‘id said: Is it sufficient for him to provide lunch and dinner to sixty
poor for ẓihār according to Malik, or to provide lunch but not dinner, or dinner but not
lunch, or both? 4 — Ibn al-Qasim said: I was informed that Malik says regarding
expiations for oaths: If he gives them lunch and dinner, that suffices for him. I have not
heard regarding ẓihār anyone specifying lunch and dinner except what came from the
Prophet (peace be upon him): two mudd, two mudd.
[al-Mudawwana al-Kubra 2/310]
Foods
All foods are of two types: animal and inanimate, plant or otherwise. All inanimate foods
are permissible except impurities and what is mixed with impurity, intoxicants, and
harmful substances such as poisons; clay is disliked, and it is said forbidden. Al-Shafi‘i
forbade mucus and semen. As for animals, some are forbidden for a reason, such as
carrion, that which dies by strangulation, and their sisters, which will be mentioned in
the section on slaughter; some are forbidden by their essence. Al-Turtushi said: The
school is established on one of two narrations, the narration of the Iraqis, that all
animals are eaten from the elephant to the ant and worm and everything in between
except humans and pigs, for these two are forbidden by consensus. Among them are
those absolutely permissible, and among them are those disliked. The discussion
regarding animals is divided into seven issues:
(The first issue) Marine animals, consisting of five types. (First) Fish, which is
permissible by consensus, except that Abu Hanifa does not permit eating what floats
(dead on water), but only what is caught or comes out of the water, or otherwise.
(Second) That which resembles animals of the land, and both are permissible according
to the two Imams, contrary to Abu Hanifa, who does not permit eating anything except
fish. (Fourth) That which resembles forbidden animals, such as the water pig and its
dog; it is eaten, and it is said to be disliked, and it is said forbidden, in agreement with
them. (Fifth) That which lives long on land, such as frogs; it is eaten, contrary to them.
(The second issue) Predators, such as the lion, wolf, leopard, bear, tiger, and dog; they
are disliked, and it is said all are forbidden, in agreement with them, except that al-
Shafi‘i permitted the lizard, hyena, and fox; it is said the aggressive ones are forbidden
and the non-aggressive ones are not, such as the fox and cat. There is no
disagreement regarding the permissibility of eating the lizard, which Abu Hanifa disliked.
(The third issue) Birds: those with talons and otherwise are permissible; it is said those
with talons are forbidden, such as the hawk, falcon, eagle, and vulture, in agreement
with them. The swallow is disliked, and it is said permissible. Al-Shafi‘i forbade it along
with all that is forbidden, such as ants and bees, and those ordered to be killed in the
sanctuary, such as the crow, kite, snake, mouse, and scorpion. As for locusts, they are
eaten if they die due to cutting a limb, burning, or being placed in hot water; they are not
eaten if they die otherwise, contrary to them and al-Mutarrif.
(The fourth issue) Hoofed animals: horses are disliked, and it is said permissible, in
agreement with al-Shafi‘i, and it is said forbidden; donkeys are severely disliked, and it
is said forbidden, in agreement with them, and mules likewise. Al-Lakhmi said: Horses
are less severe than donkeys, and mules are intermediate. As for the wild donkey, it is
permissible; if it is domesticated and used for carrying, there are two opinions.
(The fifth issue) Those disputed as being transformed creatures, such as the elephant,
lizard, monkey, and hedgehog; it is said permissible, and it is said forbidden.
(The sixth issue) Repulsive animals, such as insects and earth vermin. In al-Jawahir, it
is related that the dissenters from the school permit eating them. Ibn Bashir said the
school is to the contrary. Al-Shafi‘i forbade them because they are foul. Snails are eaten
if boiled or grilled, not if they die on their own.
(The seventh issue) Bloods: Al-Lakhmi said: The blood of what is permissible to eat is
forbidden, little or much, and the blood of what is permissible to eat before slaughter
likewise, and after slaughter only the flowing blood is forbidden. If the sheep is roasted
before being cut and the blood appears, it is permissible to eat it by consensus; if it is
cut and the blood appears, there is disagreement whether it is permissible or forbidden.
As for the rest of the issues, it is permissible by consensus, except eating impurities,
such as free-range chickens, regarding which there is disagreement. [al-Qawānīn al-
Fiqhiyya 192–193]
Tranquility in Prayer
Tranquility is obligatory in bowing (rukū‘) and prostration (sujūd).
1 — Malik: From Yahya ibn Sa‘id from Nu‘man ibn Murrah al-Ansari: The Messenger of
Allah (peace and blessings be upon him) said: “What do you say about the drinker, the
thief, and the adulterer?” This was before the verse was revealed about them. They
said: Allah and His Messenger know best. He said: “They are grave sins and have
prescribed punishments, and the worst theft is the one who steals his prayer.” They
said: How does he steal his prayer, O Messenger of Allah? He said: “He does not
complete its bowing nor its prostration.”
I say: Al-Shafi‘i held that if one omits the straightening of the back in bowing and
prostration, and tranquility therein, and in standing after bowing and sitting between the
two prostrations, his prayer is invalid. The school of Abu Hanifa, according to the
analysis of al-Karkhi, is that tranquility is obligatory in bowing and prostration, and
sunnah (recommended) in standing after bowing and sitting between the two
prostrations, and this is the correct view in terms of knowledge. The well-known position
among his companions is that tranquility is not obligatory, nor is straightening after
bowing and sitting between the two prostrations. Thus, the analogy to theft in al-Shafi‘i’s
view is for prohibition, and in Abu Hanifa’s view, according to the well-known opinion, for
dislike (makruh).
[al-Musawwa from the hadiths of al-Muwatta’ 1/151]
Repeating Congregational Prayer a Second Time in the Mosque
1 — Malik said: Whoever prays on a path among the paths of the Muslims where there
is no appointed imam, and a group comes and prays there—whether they are travelers
or not—and then another group comes after them, there is no harm in them praying in
congregation there again; and if many groups come in this way, there is no harm in that.
2 — Malik said: If a man comes to a mosque after its people have prayed, and he hopes
to catch a congregation in another mosque or elsewhere, there is no harm in him
leaving for that congregation; and if a group comes after the people of the mosque have
prayed, there is no harm in them leaving the mosque and praying in congregation
elsewhere, unless it is the Sacred Mosque or the Mosque of the Messenger of Allah—in
these, they should not leave, and should pray individually, because the Sacred Mosque
and the Mosque of the Messenger have greater reward for them than their prayer in
congregation elsewhere. 3 – Sahnun ibn Saʿid narrated from Ibn al-Qasim from Malik
from ʿAbd al-Rahman ibn al-Mujbir, who said: I entered the mosque of al-Juhfa with
Salim ibn ʿAbd Allah after the people had finished the prayer, and they said, “Will you
not repeat the prayer?” Salim replied, “The prayer is not repeated twice in one mosque.”
Adhering to the Qur’an and the Sunnah
al-Mudawwana al-Kubra 1/89
Obligation to adhere to the Book and the Sunnah
1 – Malik: It has reached him that the Messenger of Allah, peace and blessings be upon
him, said: “I have left among you two matters; you will never go astray as long as you
hold fast to them: the Book of Allah and the Sunnah of His Prophet.”
al-Musawwa min Ahadith al-Muwatta 2/453
Adhering to the Book and the Sunnah and abandoning innovation
There are two issues herein:
The first issue is abandoning innovations. The Messenger of Allah, peace be upon him,
said: “I have left among you two matters; you will never go astray as long as you hold
fast to them: the Book of Allah and my Sunnah.” He, peace be upon him, also said: “My
Companions are like stars; whichever of them you follow, you will be guided.” He urged
following the Rightly Guided Caliphs. All goodness is in holding fast to the Book and the
Sunnah and emulating the righteous predecessors among the imams, and avoiding
every innovation and newly introduced matter. The early generations would censure
innovations absolutely. The later scholars divided them into five categories: obligatory,
such as recording knowledge; recommended, such as the tarawih prayer; forbidden,
such as unjust taxes and the like; disliked, such as singling out certain days for
particular acts of worship; and permissible, like what people have introduced in foods
and clothing. ʿAisha, may Allah be pleased with her, said: “In the time of the Prophet,
peace be upon him, there were no sieves.”
The second issue concerns investigation and imitation (taqlid). Belief is attained either
by investigation (nazar) or imitation (taqlid). As for taqlid, scholars have disagreed about
it. The theologians (mutakallimun) hold that it is not permitted and does not suffice. Most
of the hadith scholars hold that it is permitted and suffices before Allah, and this is the
correct view, for the Messenger of Allah, peace be upon him, was content with people
attaining faith by whatever means, whether by imitation or investigation. If reasoning
and investigation were obligatory for them, it would be too difficult for them to enter the
religion, since many people, such as the desert dwellers and others, do not know it.
Investigation and reasoning are the concern of those with sound intellect and sharp
minds, and among them the degrees of scholars vary, and that is Allah’s bounty which
He gives to whom He wills. The best form of reasoning is that which follows the method
of the righteous predecessors from the Companions, Followers, and the imams of the
Muslims, which is reasoning by the Book of Allah, pondering its verses, reflecting on the
wonders of His creation and marvels of His handiwork, emulating the reports of the
Chosen One, his beautiful conduct, and his outstanding knowledge, then sincerity of
love for him and his pure family, his wives the mothers of the believers, his noble
companions, the righteous, and those who follow them with excellence until the Day of
Judgment. May Allah be pleased with them all.
al-Qawanin al-Fiqhiyya, pp. 30–31
Repeating the prayer with another imam
Repeating the prayer with another imam
1 – Malik said: Whoever has prayed in congregation, even if only with one other person,
does not repeat that prayer in another congregation. If the prayer is established in the
mosque while he has already prayed it with another or with a group, he does not repeat
it but should leave the mosque.
Repeating the prayer due to purification
al-Mudawwana al-Kubra 1/88
1 – Malik said: Whoever prays while carrying the skin of a dead animal that has not
been tanned, or something from its flesh or bones, must repeat the prayer as long as
the time remains. If the time has passed, he does not repeat it.
2 – Malik said: Regarding someone who performed wudu and prayed with water that
was not pure, thinking it was pure, then learns the truth: he repeats the prayer as long
as the time remains. If the time has passed, he does not repeat it, but he washes
whatever of his body and clothes that the water touched.
al-Mudawwana al-Kubra 1/92
Withdrawing from the common people out of fear of tribulation
The virtue of withdrawing from people if one fears tribulation from them
1 – Malik: From ʿAbd al-Rahman ibn ʿAbd Allah ibn ʿAbd al-Rahman ibn Abi Saʿsaʿa,
from his father, from Abu Saʿid al-Khudri, who said: The Messenger of Allah, peace be
upon him, said: “Soon the best wealth for a Muslim will be sheep which he follows to the
peaks of the mountains and places of rainfall, fleeing with his religion from tribulations.”
2 – Malik: From ʿAbd Allah ibn ʿAbd al-Rahman ibn Maʿmar al-Ansari, from ʿAtaʾ ibn
Yasar, who said: The Messenger of Allah, peace be upon him, said: “Shall I not tell you
who has the best dwelling among people? A man holding the reins of his horse, striving
in the path of Allah. Shall I not tell you who has the best dwelling among people after
him? A man withdrawn with his flock, establishing prayer, giving zakat, and worshipping
Allah alone without associating anything with Him.”
I said: “Shaʿfa” means the highest part of anything.
al-Musawwa min Ahadith al-Muwatta 2/454
Iʿtikaf until the end of Ramadan
The Sunnah is that the person observing iʿtikaf does not return to his house until he
witnesses the Eid with the Muslims. Yahya narrated from Ziyad from Malik from Sumi,
the freedman of Abu Bakr, that Abu Bakr ibn ʿAbd al-Rahman performed iʿtikaf and
would go for his need under a roof in a closed room in the house of Khalid ibn al-Walid,
and would not return until he witnessed the Eid with the Muslims. Yahya narrated from
Ziyad from Malik that he saw some of the scholars, when they performed iʿtikaf during
the last ten days of Ramadan, would not return to their families until they had witnessed
the Eid with the Muslims. Malik said: I have been informed of this from the virtuous
people of the past. Malik said: This is the most beloved of what I have heard in this
regard.
I said: Its reason is that it is recommended to enliven its night, and Abu Bakr saw that
spending that night in iʿtikaf in the mosque was easier for him for enlivening it; and it is
recommended to enliven the two nights of Eid with worship, and this is attained by
spending most of the night.
al-Musawwa min Ahadith al-Muwatta 1/318–319
Iʿtikaf
And consideration of its ruling, place, time, conditions, and invalidators
As for its ruling: it is a recommended act of devotion for men and women, especially in
the last ten days of Ramadan, and it becomes obligatory by vow. Malik expressed
apparent dislike for it due to its difficulty.
As for its place: it is in all mosques according to the majority, except for a group who
restricted it to the three mosques, and contrary to Ibn Lubaba who permitted it outside
the mosque. If one intends to observe iʿtikaf for a set period, he must attend Friday
prayer during it, so the congregational mosque is required, because if he leaves for
Friday prayer, his iʿtikaf is invalidated, contrary to Abu Hanifa and Ibn al-Majshun. The
person observing iʿtikaf does not leave except for four things: for human necessity, for
what is indispensable from buying his sustenance, for illness, and for menstruation. If he
leaves for any of these, he is considered as outside [the iʿtikaf].
As for its time: the minimum is a night, and the preferred is not less than a day. If one
enters before sunset on the night of the day he begins, it suffices by agreement. If he
enters after dawn, it does not suffice. If he enters after sunset and after ʿisha, there are
two opinions regarding its validity and invalidity. As for leaving: if he leaves after sunset
on the last day, it suffices except for the prayer. If one performs iʿtikaf (spiritual retreat)
at the end of Ramadan, it is prescribed in the [Maliki] school that he remain until the Eid
exits. There is a difference of opinion as to whether this is obligatory (wajib) or
recommended (mandub), and accordingly, whether the iʿtikaf of one who leaves before
Eid is invalidated or not.
As for its conditions, they are three: — Intention (niyya), by consensus. — Fasting
(sawm), differing from al-Shafiʿi. — Occupying oneself with worship to the extent of
one’s ability, night and day, with prayer, remembrance (dhikr), and recitation—
specifically according to Ibn al-Qasim, and with all acts of the Hereafter according to Ibn
Wahb. According to the first opinion, he does not attend funerals, nor visit the sick, nor
teach knowledge; according to the second, he may do so.
As for its nullifiers, they are six: — Sexual intercourse, by consensus. — Physical
contact, even without emission, differing from Abu Hanifa. — Apostasy (riddah). —
Intoxication. — Leaving his place of iʿtikaf for anything not permitted, even if obligatory,
such as a specific obligation of jihad, imprisonment for debt, or falling into a major sin
such as slander; there is disagreement on this. — In the [Maliki] school, iʿtikaf is not
invalidated by applying perfume, nor by contracting marriage for himself or another, and
it does not benefit him to stipulate doing something that would prevent iʿtikaf, differing
from al-Shafiʿi.
[Al-Qawanin al-Fiqhiyya, pp. 143–144]
Iʿtikaf in Mosques
Iʿtikaf in Mosques It is permissible to perform iʿtikaf in any mosque.
1. Yahya said: Malik said: The matter with us, about which there is no
disagreement, is that iʿtikaf in any mosque where Friday prayer (Jumʿa) is held is
not disliked, nor do I see it disliked in mosques where Friday prayer is not held
except for the concern that the person performing iʿtikaf would leave his mosque
for Friday prayer or miss it. If it is a mosque where Friday prayer is not held, and
it is not obligatory for him to attend Friday prayer elsewhere, then I see no harm
in performing iʿtikaf there, for Allah, Blessed and Exalted, said: “While you are in
retreat (iʿtikaf) in the mosques” [Quran 2:187], so Allah generalized ‘mosques’
and did not specify any particular one. Malik said: Hence, it is permissible for him
to perform iʿtikaf in mosques where Friday prayer is not held, if he is not
obligated to leave for a mosque where Friday prayer is held.
I said: Iʿtikaf is permissible in any mosque. If the mosque is not a congregational
mosque, then leaving for Friday prayer is obligatory by consensus; and if he leaves, his
iʿtikaf is invalidated according to al-Shafiʿi, and he must make a new intention for what
remains if it is voluntary; it is not invalidated according to Abu Hanifa, as if he left for a
need.
[Al-Musawwa min Ahadith al-Muwattaʾ, vol. 1, pp. 316–317]
Iʿtikaf in Ramadan
Recommendation of iʿtikaf during the last ten nights of Ramadan, seeking Laylat al-
Qadr
1. Malik: from Yazid ibn Abdullah ibn al-Had, from Muhammad ibn Ibrahim ibn al-
Harith al-Taymi, from Abu Salama ibn Abd al-Rahman ibn Awf, from Abu Saʿid
al-Khudri, who said: The Messenger of Allah (peace be upon him) would not
perform iʿtikaf during the middle ten nights of Ramadan. He performed iʿtikaf one
year until the night of the twenty-first, which is the night he would leave his iʿtikaf
in the morning. He said: “Whoever is performing iʿtikaf, let him perform iʿtikaf
during the last ten nights with me. I have seen this night, then I was made to
forget it, and I saw myself prostrating in its morning in water and mud. So seek it
in the last ten nights, and seek it in every odd night.” Abu Saʿid said: The sky
rained that night, and the mosque was a canopy, so the mosque leaked. Abu
Saʿid said: My eyes saw the Messenger of Allah (peace be upon him) depart,
 and on his forehead and nose was the trace of water and mud from the morning
of the twenty-first night.
I said: The scholars are agreed upon this. In this hadith, whoever wishes to perform
iʿtikaf in the last ten nights should enter before sunset on the twentieth day—this is the
view of al-Shafiʿi and Abu Hanifa.
No iʿtikaf except with fasting
1. Malik: It reached him that al-Qasim ibn Muhammad and Nafiʿ, the freedman of
Abdullah ibn Umar, said: There is no iʿtikaf except with fasting; Allah Most High
says in His Book: “And eat and drink until the white thread becomes distinct to
you from the black thread of dawn. Then complete the fast until the night, and do
not approach them while you are in retreat (iʿtikaf) in the mosques.” [Quran
2:187] Thus, Allah mentioned iʿtikaf together with fasting.
I said: Abu Hanifa holds this view, and al-Shafiʿi said: Fasting is not a condition for the
validity of iʿtikaf.
[Al-Musawwa min Ahadith al-Muwattaʾ, vol. 1, pp. 318, 312]
Leaning in Prayer
1. He said: I asked Malik about a man who prays beside a wall and leans on the
wall. He said: As for the obligatory prayer, I do not approve of it; as for the
voluntary prayer, I see no harm in it. Ibn al-Qasim said: And a staff in his hand is,
in my view, like the wall. Ibn al-Qasim said: Malik said: If he wishes, he may lean,
and if he wishes, he may not; and he did not dislike leaning.
[Al-Mudawwana al-Kubra, vol. 1, p. 75]
Iʿtikaf and Its Making Up
Making up iʿtikaf if missed in Ramadan
1. Yahya, from Ziyad, from Malik, from Ibn Shihab, from ʿAmra bint Abd al-Rahman,
that the Messenger of Allah (peace be upon him) intended to perform iʿtikaf.
When he came to the place where he intended to perform iʿtikaf, he found tents:
the tent of ʿAisha, the tent of Hafsa, and the tent of Zaynab. When he saw them,
he asked about them, and it was said to him: This is the tent of ʿAisha, Hafsa,
and Zaynab. The Messenger of Allah (peace be upon him) said: “Is it
righteousness that you attribute to them?” Then he left and did not perform iʿtikaf
until he performed iʿtikaf for ten days in Shawwal.
I said: The scholars are agreed upon this. Its meaning according to al-Shafiʿi is that if a
timed voluntary act is missed, it is recommended to make it up, as with obligatory acts;
and this is only conceivable if he intended a specific, continuous period. Its meaning
according to Abu Hanifa is: If one begins an act of obedience, it is obligatory to
complete it; if he invalidates it, he must make it up, as happened here from Ibn Shihab.
The correct version according to the hadith critics is: Malik from Yahya ibn Saʿid from
ʿAmra; so it is not known whether the error is from Yahya or from Ziyad.
[Al-Musawwa min Ahadith al-Muwattaʾ, vol. 1, p. 320]
Ghusl (Ritual Bath)
It has four sections:
Section One: Types of ghusl—obligatory (wajib), sunnah, and recommended
(mustahabb). Obligatory ghusl is due to janaba (sexual impurity), menstruation (hayd),
postnatal bleeding (nifas), and for entering Islam. Sunnah ghusl is for Friday (Jumʿa)—
the Zahiri school considered it obligatory—and for the two Eids, for entering ihram for
Hajj, for entering Mecca, and for washing the dead (some said this is obligatory).
Recommended ghusl is for tawaf, for saʿy between Safa and Marwa, for standing at
ʿArafah and Muzdalifah, for bleeding due to istihada (non-menstrual vaginal bleeding),
and for washing after washing the dead.
Section Two: Its obligatory elements (faraʾid) are five: intention (niyya), differing from
Abu Hanifa; washing the entire body, by consensus; rubbing (tadlik), in the [Maliki]
school, differing from others; immediacy with remembrance and ability, differing from
them both; combing through the beard, in agreement with al-Shafiʿi (some said it is
sunnah).
Section Three: Its recommended elements (sunan) are five: washing the hands before
putting them in the vessel; rinsing the mouth and nose—Abu Hanifa made these
obligatory in ghusl; wiping the inside of the ears; combing through the hair of the head
(some said it is a virtue, and al-Shafiʿi made it obligatory).
Section Four: Its virtues (fadaʾil) are five: saying bismillah; pouring water on the head
three times; performing ablution (wudu) first; beginning with removal of filth before
wudu; beginning with the upper and right side. Its disliked elements (makruhat) are five:
excessive use of water; reversing the order of actions; repeating the washing of the
body if it has already been thoroughly washed; performing ghusl in the toilet; speaking
except with the remembrance of Allah.
Its description: He begins by washing his hands, then removes any filth from his hands,
then washes his private parts due to janaba so as not to touch them after wudu, then
performs wudu as for prayer (it is permissible to delay washing the feet until the end of
ghusl), then combs the roots of his hair with his fingers, then pours water over his head
three times; a woman should squeeze her braided hair, and she is not required to undo
her braids, differing from al-Shafiʿi; then he washes the rest of his body.
Five branches:
Branch One: He must inspect hidden places such as under the chin...
Obligatory causes for ghusl. ...the armpits, the roots of the thighs, under the knees, the
depth of the navel, and other such areas.
(Second Subsection) If one's wudu (ablution) is invalidated during his ghusl (ritual bath),
he must repeat the wudu. There is a difference of opinion regarding whether he must
intend it (niyyah) or not.
(Third Subsection) It suffices for a menstruating woman (ha'id) and a person in a state
of major ritual impurity (junub) to perform a single ghusl for both menstruation and
janabah, and the intention of ghusl suffices for wudu, since wudu is subsumed under it,
but not vice versa.
(Fourth Subsection) If one performs ghusl for janabah and for Friday (Jum‘a), there are
several scenarios: The first is that he intends janabah and follows it with Friday, and this
suffices for both by agreement.
(Fifth Subsection) A dhimmi woman (non-Muslim under Muslim rule) may perform ghusl
for menstruation under a Muslim husband for the husband’s right, even if she does not
intend it. The husband or master may compel her to perform ghusl for menstruation, but
not for janabah according to Ibn al-Qasim, while Ashhab said he may not compel her.
Obligatory causes for ghusl
They are: janabah, entering Islam, cessation of menstrual or postpartum bleeding
(nifas)—which will be discussed in its chapter.
As for janabah, it is of three types: emission while awake, penetration of the glans, and
nocturnal emission (ihtilam).
As for emission, it is the discharge of semen. Semen (mani) is the gushing fluid, white,
thick, viscous, with a scent resembling pollen or dough. If it exits with the usual pleasure
from intercourse or less, ghusl is obligatory by consensus. If it exits without pleasure or
with unusual pleasure, such as by scratching the body, bathing with hot water, or by
something painful like a blow, ghusl is not obligatory—though it is said it is, in
agreement with al-Shafi‘i.
If the usual pleasure is felt without foreplay, as when one has intercourse or direct
contact but no fluid exits then, and it exits after the pleasure has gone, there are three
opinions: that ghusl is obligatory (in agreement with al-Shafi‘i), that it is not, and that
there is a distinction—if he had intercourse and performed ghusl before the semen
exited, he does not repeat ghusl; if he did not, then he must perform ghusl.
Where we say ghusl is not obligatory, there are two opinions regarding the obligation or
recommendation of wudu.
As for penetration of the glans (or its equivalent) into the front or rear of an animal or
human, ghusl is obligatory, whether emission occurs or not, by consensus after the
abrogation of “water is only from water.”
Obligatory causes for ghusl
Benefits:
Know that penetration of the glans, as it obligates ghusl, also obligates the hadd
punishment in zina, legalizes spouses, invalidates obligatory and voluntary fasting,
obligates kaffara (expiation) in Ramadan, obligates a man to pay kaffara on behalf of a
woman if he coerces her, invalidates consecutive fasting in expiations, invalidates Hajj if
before standing at ‘Arafah, obligates ‘umrah and sacrificial animal if after ifadah and
before the Jamrah al-‘Aqabah, obligates the sacrificial animal if after ifadah and before
Jamrah al-‘Aqabah for one who delays its stoning, invalidates i‘tikaf, invalidates ‘umrah,
obligates Hajj for a woman if coerced, obligates fulfillment of an oath to have
intercourse, obligates breaking an oath not to have intercourse, obligates payment of
value by a father for intercourse with his son's slave girl, and by a grandfather for
intercourse with his grandson’s slave girl, obligates value on the usurper of a slave girl,
obligates value on one of two partners if he has intercourse with a jointly owned slave
girl, severs the marital bond of a missing husband if a second husband consummates,
severs the return (ruju‘) of a first husband who took her back without her knowledge,
validates the marriage of a second husband if two guardians marry her to two men
without knowledge of the other, validates the sale to a second buyer if her master or his
agent sold her to two men without knowledge of the other, makes the stepdaughter
forbidden, invalidates marriage to a daughter if one marries her mother and
consummates, makes the second sister forbidden by right of ownership, makes the
paternal aunt forbidden to her brother’s daughter by right of ownership, makes the
maternal aunt forbidden to her sister’s daughter by right of ownership, makes the
woman married during her ‘idda forbidden, obligates full dowry, obligates dowry on the
usurper and the adulterer, validates marriage if contracted with a corrupt dowry,
obligates investment for the daughter if her father marries her after him, obligates ‘idda,
obligates istibra’ for the slave girl, obligates istibra’ in zina, obligates ruju‘, makes the
thrice-divorced woman lawful for the one who divorced her, obligates option for the
woman whose husband conditions that she not be affected, and severs the option of the
slave girl if freed under a slave husband, obligates kaffara for zihar, initiates kaffara for
zihar if intercourse occurs after beginning it, cancels ila’ (oath of abstinence) for the one
swearing, cancels li‘an, obligates hadd on the li‘an if intercourse occurs after
accusation, cancels the daughter’s maintenance on her father if she is divorced,
validates a corrupt sale of a slave girl, cancels the option in selling a slave girl, cancels
action for defect in a slave girl, cancels a father’s retraction in a gift, obligates payment
in a reward gift—these are fifty rulings.
Summary of rulings of intercourse into four categories: one pertains to lawful intercourse
in marriage or by shubha (doubtful circumstances), not by haram, such as making
lawful, legalizing spouses; one pertains to lawful and shubha, not haram, such as
lineage, ‘idda, full dowry, prohibition by marriage ties, and the like; one pertains to
haram with legal protection, but not sin; one pertains to lawful, haram, and shubha, such
as obligation of ghusl and invalidation of acts of worship like fasting, Hajj, i‘tikaf, and so
on.
As for nocturnal emission (ihtilam), ghusl is obligatory for discharge of semen during
sleep, whether by man or woman, by consensus; it is not obligatory for ihtilam without
discharge by consensus. If one wakes and finds wetness, not knowing if it is semen or
madhiy, and does not recall a dream, there are two opinions on whether ghusl is
obligatory. If one finds traces of emission on his garment and is unsure when it
occurred, if it is fresh, he repeats the prayer from the closest sleep he had; if it is dry, he
repeats from the first sleep he had in that garment; it is also said from the closest sleep.
Issue: Janabah prevents prayer by consensus, prostration of recitation by consensus,
touching the mushaf (Qur’an) according to the four schools, contrary to the Zahiris, and
prevents tawaf and i‘tikaf by consensus, and reciting the Qur’an from memory according
to the four schools, contrary to some; Malik permitted brief verses for seeking refuge,
contrary to al-Shafi‘i; and prevents entering the mosque. Al-Shafi‘i permitted passing
through it, Ibn Hanbal permitted sitting in it for one in janabah.
As for Islam, it is obligatory for the non-Muslim upon entering Islam to perform ghusl, in
agreement with Ibn Hanbal; it is said to be recommended, in agreement with al-Shafi‘i.
There is a difference of opinion regarding whether he must perform ghusl if he believes
in Islam in his heart before openly declaring it, and whether he should perform
tayammum if water is unavailable.
[Al-Qawanin al-Fiqhiyya, 40–44]
Inability to provide maintenance for the wife
[See: Marriage and causes of option therein]
Ghusl for Hajj with shaving
It is recommended to perform ghusl for ihram and for entering Mecca and for standing
at ‘Arafah.
1 – Malik: From Nafi‘ that Abdullah ibn Umar used to perform ghusl for his ihram before
entering the state, and for entering Mecca, and for standing on the eve of ‘Arafah.
I said: This is the practice of the scholars.
It is recommended to trim the beard and mustache at ihram
2 – Malik: It has reached me that Salim ibn Abdullah, when intending ihram, would call
for scissors, trim his mustache, and take from his beard before mounting and before
declaring ihram.
3 – Malik: From Nafi‘ that Abdullah ibn Umar, when breaking his fast in Ramadan and
intending Hajj, did not take anything from his head or beard until he performed Hajj.
Malik said: This is not required of the people.
I said: The “scissors” are the cutting instruments. Al-Mahalli said: It is recommended to
prepare for ihram by shaving the pubic hair, cleaning the armpits, trimming the
mustache, and clipping the nails, and it is preferable to do these before ghusl. In al-
‘Alamkiriyya: similar, and in it, shaving the head for those men accustomed to it,
otherwise combing it.
[Al-Musawwa from the hadiths of al-Muwatta’, vol. 1, 326–327]
Fainting in the option of sale
Fainting in the option of sale
170 1 — Sahnun said to Ibn al-Qasim: What do you say if a man bought merchandise
with the option of rescinding (khiyar) for three days, and he was unconscious during all
the days of the option—those in which he had the right of choice—do his heirs or the
ruler stand in his place according to Malik’s opinion?
Ibn al-Qasim said: I do not recall anything from Malik on this, and neither the heirs nor
the ruler have any right here; it is left until the period expires. If he regains
consciousness, he retains his option: if he wishes, he may take (the merchandise), and
if he wishes, he may return it. His right of option is not cut off due to his
unconsciousness during the days of the option.
2 — Sahnun said: If this unconsciousness is prolonged, what is to be done? Ibn al-
Qasim said: The ruler considers the matter; if he sees harm in it, he annuls the sale
between them, and the annulment is valid.
3 — Sahnun said to Ibn al-Qasim: Is it not for the ruler to take (the merchandise) for the
benefit of the unconscious man? Ibn al-Qasim said: No, because he is neither insane
nor a minor; he is merely ill. [al-Mudawwana al-Kubra, vol. 3/227]
Allowing the Weak to Leave ‘Arafat Early
Precedence of the Weak from Jam‘
1 — Malik: From Nafi‘ from Salim and ‘Ubayd Allah, the sons of ‘Abd Allah ibn ‘Umar,
that their father ‘Abd Allah ibn ‘Umar would send his family and children ahead from
Muzdalifah to Mina so that they would pray Fajr at Mina and throw (the pebbles) before
the people arrived.
2 — Malik: From Yahya ibn Sa‘id from ‘Ata’ ibn Abi Rabah that the freedwoman of
Asma’ bint Abi Bakr al-Siddiq informed him. She said: We came with Asma’ bint Abi
Bakr to Mina in the darkness. I said to her: We have come to Mina in darkness. She
said: We used to do that with one better than you.
3 — Malik: It reached him that Talha ibn ‘Ubayd Allah would send his women and
children ahead from Muzdalifah to Mina.
4 — Malik: From Hisham ibn ‘Urwah that Fatimah bint al-Mundhir informed him that she
would see Asma’ bint Abi Bakr al-Siddiq at Muzdalifah instructing the one who prayed
Fajr for her and her companions to pray for them at the break of dawn, then she would
mount and proceed to Mina without stopping.
I said: This is the practice of the scholars in the Minhaj, and it is sunnah (recommended)
to send the weak and women after midnight to Mina. In al-‘Alamkiriyya: If one leaves
Muzdalifah before dawn, a sacrificial penalty (dam) is due for omitting the standing,
unless he has an illness, sickness, or weakness and fears crowding, so he departs by
night; in that case, nothing is due. [al-Musawwa min Ahadith al-Muwatta’, vol. 1/385]
Prompting the Imam in Recitation
1 — Malik said: Whoever is behind the Imam and is above the Imam in recitation, let
him prompt the Imam from behind.
2 — Ibn Wahb from several people from ‘Aqil ibn Khalid from Ibn Shihab from Humayd
ibn ‘Abd al-Rahman ibn ‘Awf: The Messenger of Allah, peace be upon him, led the
people in the morning prayer one day and recited: “Blessed is He Who sent down the
Criterion upon His servant,” but omitted a verse. When he finished, he said: “Is Ubayy
ibn Ka‘b in the mosque?” He said: “Yes, here I am, O Messenger of Allah.” He said:
“What prevented you from prompting me when I omitted (the verse)?” He said: “I feared
it had been abrogated.” He said: “It has not been abrogated.” [al-Mudawwana al-Kubra,
1/103]
Invalidation of Hajj
1 — Sahnun ibn Sa‘id said to Ibn al-Qasim: What do you say if a muhrim (one in ihram)
played with his private part and ejaculated—does this invalidate his Hajj?
Malik said: His Hajj is invalidated, and he must perform Hajj the following year.
2 — Sahnun ibn Sa‘id said: If it was a woman who did what wicked women do during
ihram—playing with herself until she ejaculated—do you see that she has invalidated
her Hajj according to Malik? He said: Yes, in my opinion.
3 — Malik said: If he touched, kissed, or had physical contact and ejaculated, he must
perform Hajj the following year, and his Hajj is invalidated. If he looked and ejaculated,
and it did not persist, and the ejaculation was sudden and not due to repeated looking
for pleasure, then his Hajj is complete, but a sacrificial penalty (dam) is due.
Malik said: Whoever kisses, squeezes, touches, or derives pleasure from his spouse
without ejaculation and without penetration (glans entering) must pay a sacrificial
penalty (dam), and his Hajj is complete. [al-Mudawwana al-Kubra, 1/327]
Breaking the Fast in Ramadan Due to Excuse
[See: Fasting and Its Exemptions]
Breaking the Fast and Its Consequences
There are seven: qada’ (making up the fast), major expiation (kafara kubra), minor
expiation (kafara sughra)—that is, fidya; withholding (imsak), breaking continuity
(qat‘ al-tatabu‘), punishment (‘uquba), and nullification of intention (qat‘ al-niyya).
As for qada’ (making up), whoever breaks the fast deliberately in an obligatory fast must
make it up, as does one who breaks it due to illness or travel. Whoever breaks the fast
out of forgetfulness must make it up, contrary to those who permit otherwise. If one
breaks the fast deliberately during qada’, is he obliged to make up the original fast only,
or both the original and the qada’? There are two opinions. Whoever breaks a voluntary
fast deliberately must make it up, contrary to those who permit otherwise. If one breaks
a voluntary fast out of forgetfulness, he completes it and does not have to make it up by
consensus. If he breaks it for a permitted reason, no qada’ is due.
As for kafara (expiation), its cause and types are as follows: Its cause is the deliberate
invalidation of the fast of Ramadan, with the intention to violate the sanctity of the fast
without a permitted excuse. There is no expiation for breaking the fast in making up
Ramadan, according to the majority, nor for the forgetful or coerced, nor for kissing, nor
for menstruating women, women in nifas, the insane, or the unconscious, because it is
not by their action, nor for the sick, traveler, one overcome by hunger or thirst, or the
pregnant due to their excuse, nor for the apostate, because he has violated the sanctity
of Islam, not specifically the fast.
Branches:
First branch: Expiation is obligatory for deliberate intercourse, whether with one’s wife or
a stranger. If the woman consents, expiation is due on both; al-Shafi‘i and Dawud said
one expiation suffices for both. If he has intercourse with a sleeping or coerced woman,
expiation is due for both. If he has intercourse out of forgetfulness, no expiation is due
according to the well-known opinion, contrary to Ibn Hanbal, and qada’ is due, contrary
to both. If he has intercourse under coercion, no expiation is due, contrary to Ibn al-
Majshun and Ibn Hanbal.
Second branch: Expiation is obligatory for deliberate eating and drinking, contrary to al-
Shafi‘i and the Zahiris. Likewise, for anything that reaches the throat from the mouth
specifically, but not for what enters from elsewhere, such as the nose or ear, contrary to
Abu Mus‘ab alone.
Third branch: Expiation is obligatory for beginning the day with the intention to break the
fast, even if he intends to fast afterwards, according to the sound opinion, and for
abandoning the intention during the day, according to the sound opinion.
Fourth branch: There is disagreement regarding its obligation for one who vomits
deliberately, or who swallows something non-nutritive deliberately, and for one who
says, “Today is my turn for fever,” so breaks the fast and then is afflicted, and for the
woman who says, “Today I will menstruate,” so breaks the fast and then menstruates. If
one deliberately breaks the fast without excuse, then falls ill, travels, or menstruates,
expiation is due according to the well-known opinion, considering the initial state; some
say it is dropped considering the subsequent state.
As for its types, they are three: freeing a believing slave sound from defects and not
bound by any contract of freedom, and her emancipation is not obligatory for another
reason; fasting two consecutive months; and feeding sixty poor persons, each with a
mudd by the mudd of the Prophet, peace be upon him. Abu Hanifa said two mudds. The
choice is permitted, as with the expiations of oaths, except that feeding is preferred
according to the well-known opinion, and some said it is in order, as with the expiations
of zihar, in agreement with both.
Two branches:
First: If one breaks the fast and expiates, then breaks the fast again in the same day, a
second expiation is due by consensus. If he repeats breaking the fast in one day, only
one expiation is due. If he breaks the fast and does not expiate, then breaks the fast on
a second day, a second expiation is due, contrary to Abu Hanifa.
Second: Whoever is unable to perform the expiations, they remain a debt upon him, and
what matters is his state at the time of expiation according to the opinion of order.
Summary of the School on Qada’ (making up missed fasts) and Kaffara (expiation):
Whoever deliberately breaks their fast in any type of fasting must perform qada’ (make
up the fast), and kaffara (expiation) is only required for Ramadan. Whoever breaks their
fast in any of them due to forgetfulness must perform qada’ without kaffara, except in
voluntary fasting, for which neither qada’ nor kaffara is required. As for fidya
(compensatory payment), it is a measure (mad) of food for a poor person for each day,
and it is obligatory for four types:
(First) Whoever delays making up missed Ramadan fasts despite being able to, until
another Ramadan enters, contrary to Abu Hanifa; it does not multiply with the passing of
years. It should be paid at the time of making up the fasts according to the latter
opinion, and Ashhab said it is paid when unable to make up the fasts.
(Second) The pregnant woman: fidya is obligatory for her according to the narration of
Ibn Wahb, in agreement with al-Shafi‘i; Ashhab said it is recommended for her, and Ibn
al-Majshun said: If she fears for herself, she does not feed (pay fidya) because she is ill;
if she fears for her child, she feeds.
(Third) The nursing woman: there are two narrations regarding the obligation of fidya for
her.
(Fourth) The elderly: no fidya is required for him according to the well-known opinion; it
is said it is obligatory in agreement with the two (Abu Hanifa and al-Shafi‘i), and it is said
it is recommended.
As for holding (abstaining) for the rest of the day, it is commanded for one who breaks
the fast in Ramadan specifically, whether deliberately or forgetfully, not for one who
breaks the fast for a valid excuse.
As for punishment, it is for one who violates the fast of Ramadan, and that is subject to
the ijtihad (discretion) of the Imam and the specific circumstances.
As for breaking consecutive fasting, it applies to one who deliberately breaks a fast in
vow fasting (nadhr) and consecutive expiatory fasts, such as for killing or zihar: he must
start over, unlike one who breaks the fast due to forgetfulness, excuse, or error in
counting, for he continues from where he left off.
As for breaking the intention (niyya), it is nullified by corrupting the fast or abandoning it
altogether, whether for an excuse or not, and by the cessation of the obligation to fast,
such as travel—even if one fasts while traveling. Only the legal presumption (istishab) of
intention is interrupted.
Bankruptcy
[See: Taflis (bankruptcy)]
Relatives and Their Rights
Al-Qawanin al-Fiqhiyya, pp. 140–143
1. Malik: With his chain of transmission, in the story of Abu Talha when he gave
charity with Birha’, the Messenger of Allah (peace be upon him) said: “I see that
you should give it to your relatives.” So Abu Talha said, “I will do so, O
Messenger of Allah,” and he distributed it among his relatives and paternal
cousins.
2. Malik: From ‘Abd al-Rahman ibn ‘Abd Allah ibn ‘Abd al-Rahman ibn Abi Sa‘sa‘a,
from ‘Ata’ ibn Yasar, in the story of Maymuna and the lizard; the Messenger of
Allah (peace be upon him) said: “What about your slave-girl whom you consulted
me about freeing? Give her to your sister and maintain the ties of kinship with
her, let her tend to her, for that is better for you.” [Summary]
Al-Musawwa from the hadith of al-Muwatta’, vol. 2, p. 445
(1) Reported in the chapter on the conduct of the Companions from the Book of
Siyar.
Revocation (Iqalah) in Agricultural Partnerships
Iqalah in Musaqah
 1. Sahnun said to Ibn al-Qasim: What do you say if I took palm trees from a man in
partnership, then he regretted it and asked me to revoke (iqalah) the contract
before any work was done, and I refused, then he said, “I will give you a hundred
dirhams if you revoke it,” and I did so—Is this permissible according to Malik? Ibn
al-Qasim said: This is not permissible according to Malik, neither before you work
nor after you have worked.
Sahnun asked: Why did Malik dislike it?
Ibn al-Qasim said: Because it is gharar (uncertainty); if the palm bears fruit that
year, then he has sold the fruit before its goodness appears, and if it does not,
then you have taken the owner’s money unjustly.
[Al-Mudawwana al-Kubra, vol. 9, p. 4]
Iqama for Prayer
[See: Adhan and Iqama]
Iqama for Missed Prayer
1. Malik: From Zayd ibn Aslam in the story of al-Ta‘ris and the command of the
Messenger of Allah (peace be upon him) to call for prayer or to establish it
(iqama).
2. Malik: From Ibn Shihab, from Sa‘id ibn al-Musayyib in the story of al-Ta‘ris (1),
then the Messenger of Allah (peace be upon him) commanded Bilal to establish
the prayer.
I said: The new opinion of al-Shafi‘i is that iqama is made for it but not adhan;
Abu Hanifa said both adhan and iqama are made, and this is al-Shafi‘i’s old
opinion.
Al-Musawwa from the hadith of al-Muwatta’, vol. 1, p. 122
(1) The story of al-Ta‘ris is reported in the chapter: “Whoever sleeps through a
prayer should pray it when he remembers.”
Following a Lone Individual Without His Knowledge
Iqama for the Waiting Period (Idda)
[See: Idda and Istibra’ – Chapter Four]
Following a Lone Individual Without His Knowledge
1. Sahnun ibn Sa‘id said: What is Malik’s opinion of a man who prays Zuhr alone,
then another man comes and prays following him, while the first man does not
intend to be an imam—Is his prayer valid? Ibn al-Qasim said: I have heard from
Malik that he considered his prayer complete if the follower stands on his right
and follows him, even if the first does not know. Ibn Sahnun said: What if a man
prays Zuhr alone, and another comes and stands on his right following him? He
said: His prayer is valid and complete. I asked: Even if the first does not intend to
be imam for the second? He said: It is valid, whether he intends or not.
Moderation in Foods
Al-Mudawwana al-Kubra, vol. 1, p. 86
Advice to Practice Moderation in Eating, and Not to Make a Habit of Meat and Similar
Delicacies
1. Malik: From Yahya ibn Sa‘id that ‘Umar ibn al-Khattab said: Beware of meat, for it
has a craving like the craving for wine.
2. Malik: From Yahya ibn Sa‘id that ‘Umar ibn al-Khattab met Jabir ibn ‘Abd Allah
carrying meat, and said: “What is this?” He replied, “O Commander of the
 Faithful, we craved meat, so I bought a dirham’s worth.” ‘Umar said: “Does one of
you want to fill his belly while his neighbor or cousin goes hungry? Have you not
considered this verse: ‘You have exhausted your good things in your worldly life
and enjoyed them’ [Surat al-Ahqaf, 20].”
3. Malik: It reached him that ‘Isa ibn Maryam (upon him be peace) used to say: “O
Children of Israel, stick to pure water, wild herbs, and barley bread, and beware
of wheat bread, for you will never be able to thank for it.”
I said: This is the preferred and best way according to the scholars.
Al-Musawwa from the hadith of al-Muwatta’, vol. 2, pp. 349–350
Al-Iqtidha’
[See: Qada’ and Iqtidha’]
Confession (Iqrar)
It contains three chapters:
The first chapter concerns the confessor (muqir): Every confessor’s statement is
accepted except for six: the child and the insane, whose confession is never accepted;
third, the slave, whose confession is accepted regarding matters concerning his own
body, such as hudud (penal punishments), but not in financial matters; fourth, the
foolish (safih), whose confession is accepted in criminal and penal matters but not in
financial matters; fifth, the bankrupt (muflis)—his ruling will be mentioned; sixth, the sick
person—his confession is not accepted for anyone suspected of affection, whether a
relative or a friendly acquaintance, whether an heir or not, unless the heirs approve it,
and it is accepted in other matters.
Branch: If one of the heirs absolves another from something, then if the absolution is for
something that, if the heir claimed to be absolved from, he would be required to provide
evidence, the absolution by the sick person is of no benefit, and he must provide
evidence for its validity, otherwise he is liable. If the absolution is for something that, if
claimed, would be accepted without evidence, then the absolution benefits him.
Whoever confesses against himself and another, the confession binds him for himself
but not for the other; he is considered a witness for the other. For this reason, the
confession of a guardian (wasiyy) concerning his ward, or a father concerning his child,
is not accepted for the minor or the adult; they are only witnesses. Whoever confesses
to a right and an obligation, his confession is accepted for the obligation but not for the
right.
Nisab (legal threshold) Chapter Two: Regarding Confession (Iqrar)
If the wording [of the confession] is explicit, then whatever the confessor admits to—
whether property, hadd (prescribed legal punishment), or qisas (retaliation)—becomes
binding upon him. If the wording is ambiguous, it is interpreted according to the most
apparent meaning. This chapter contains many branches, wherein the jurists have
differed due to the variation in meanings.
If someone says to another, “You have something over me,” before interpretation, it is
taken as the least thing of value. If he says, “You have wealth over me,” it is interpreted
by whatever he explains it to be, even if it is a single grain or a qirat (carat), and he must
swear an oath. It is said that less than the threshold of zakat is not accepted; another
opinion says it must be at least a quarter dinar. If he says, “A great or much wealth,” it is
said that this is not accepted and is equivalent to saying “wealth”; another opinion says
it is one thousand dinars, the amount of blood money (diyyah).
If he says, “Such-and-such,” it is treated like “something,” and whatever he explains it to
be is accepted. If he says, “Such-and-such and such-and-such,” joined by conjunction,
he is liable for twenty-one, because that is the lowest composite number of the
conjoined items. If he says, “Such-and-such dirhams,” he is liable for twenty. If he says,
“Such-and-such such-and-such dirhams,” without a conjunction, he is liable for eleven,
because that is the lowest composite number.
If he says, “Ten dirhams and a little more,” his statement is accepted regarding the “little
more.” If he says, “You have over me a thousand,” he may interpret it as he wishes—
dinars, dirhams, or otherwise. If he says, “You have over me a few tens,” it is thirteen,
because “few” (bidʿa) ranges from three to nine.
If he says, “You have over me more than one hundred,” or “about one hundred,” or “one
hundred minus a little,” then two-thirds is binding; another opinion says half plus more,
i.e., fifty-one. If he says, “Dinars, dirhams, or camels,” of any type, three are binding;
likewise, if he diminishes and says “small dirhams.” If he says, “Many dirhams,” it is said
four are binding, another opinion says nine, yet another says two hundred.
If he says, “Between one and ten,” nine are binding; another opinion says ten. If he
says, “Ten by ten,” one hundred is binding unless he explains it as meaning that he had
ten by ten which he sold to him. If he says, “You have over me oil or honey in a skin or
jar,” the confessed vessel is binding.
If he says, “Dirham, dirham,” one dirham is binding, but the claimant may have him
swear that he did not mean two dirhams. If he says, “Dirham and dirham,” or “Dirham
then dirham,” or “Dirham with dirham,” or “Above a dirham,” or “Below a dirham,” or
“Before a dirham,” or “After a dirham,” one dirham is binding. If he says, “Dirham, rather
a dinar,” the dinar is binding and the dirham is dropped.
If he says to someone, “In this house you have a share or right,” it is accepted as
whatever he interprets it to be, whether little or much, unless the confessor claims more,
in which case he may have him swear to deny the excess.
If he says, “On Saturday you have a thousand over me,” and likewise on Sunday, only
one thousand is binding, unless he attaches it to two different things. If the confession
differs, meaning he confesses in one place to one hundred and in another to two
hundred, then three hundred are binding.
If he says, “You have over me a thousand of wine or pork,” nothing is binding. If he
says, “You have over me a thousand if you swear,” and the confessor swears, he has
nothing, because the confessor says, “I did not think he would swear.”
If he confesses to one hundred dinars as a debt or deposit, it is binding as a deposit. If
he says, “Debt or deposit,” it is treated as a debt.
Issue: Regarding Exception (Istithnaʾ)
If he makes an exception that does not exhaust [the original number], it is valid, as in,
“You have ten over me, except nine,” so one is binding. If he makes exceptions from the
exceptions, saying, “Ten except nine except eight except seven except six except five
except four except three except two except one,” five are binding.
If he makes an exception from a different category, such as, “A dirham except for a
garment,” the exception is valid according to the well-known opinion, and the value of
the garment is deducted from the thousand. It is also said that his exception is invalid.
Chapter Three: Regarding Recanting a Confession
If someone confesses a right to a creature, recanting does not benefit him. If he
confesses a right of Allah, such as zina (fornication) or drinking alcohol, and then
recants due to a doubt, his recanting is accepted. If he recants for another reason, there
are two opinions: one says his recanting is accepted, in agreement with the two [Malik
and Abu Hanifa]; another says it is not accepted, in agreement with al-Hasan al-Basri.
[Al-Qawanin al-Fiqhiyya 342–344]
177
Confession, Denial, and Settlement in Inheritance
Confession, Denial, and Settlement in Inheritance
There are three chapters:
Chapter One: On the Jurisprudence of Confession—What Confession Establishes
Regarding Lineage and Inheritance
It is divided into three categories:
The first: Confession establishes both lineage and inheritance, and this is in three
cases:
(1) Two upright men, whether relatives/heirs or not. (2) A man’s acknowledgment of a
child or parent, provided the acknowledged person has no known lineage, and the
acknowledged person confirms this, and the age is such that it is possible for the
acknowledged person to be born to the confessor, and there is no clear falsehood, such
as the confessor being Arab and the acknowledged person being Abyssinian. Some say
his statement is not accepted until it is established that the mother of the child was
married to the father or his slave, and that she gave birth after the usual pregnancy
term. If a man confesses to a wife or a woman to a husband, their claim is not accepted
without evidence unless they are newcomers to the town. Abu Hanifa said it is accepted
unconditionally. (3) Attribution by qāfa (experts in genealogy), contrary to Abu Hanifa.
These are people among the Arabs who have knowledge of similarities in kinship, and
their judgment is accepted in two cases: (a) a foundling claimed by two or more men;
(b) the child of a slave woman who has been had intercourse with by two or more men
in the same period of purity. If the qāfa attribute the child to one, he is attributed to him
for lineage and inheritance. If they attribute him to two, the child is left to choose when
mature, and it is said to him, “Choose whichever you wish.” Some say he becomes the
son of both.
The second: Confession does not establish lineage or inheritance, and this is when a
deceased other than father or son confesses to an heir, such as a brother or paternal
cousin, if he has another heir by kinship or walaʾ (patronage).
The third: Confession establishes inheritance but not lineage, and this is in three cases:
(1) Confession by a deceased other than father or son to an heir, and he has no other
heir. Sahnun said neither inheritance nor lineage is established by this. (2) One upright
witness and an oath regarding the inheritance of one who has no heir. (3) Confession
by an heir of another heir with him. Malik and Abu Hanifa said the confessor gives the
confessed person from his own share what he has reduced.
Confession, Denial, and Settlement in Inheritance
Together
178 Confession, and lineage is not established by it. Al-Shafi’i said: One does not
deserve inheritance nor lineage except if the one confessed about encompasses the
entire estate; in that case, inheritance and lineage are established according to him.
(Section Two: On Practice)
If an heir confesses to another heir in a case where lineage is not established, then the
one confessed about only receives what the confession obligates in terms of reduction
from the confessor’s share. If it does not obligate a reduction, he receives nothing, such
as a wife confessing about a mother. If he confesses to someone who would exclude
him, he is given his entire share, like a grandson confessing about a son. If he
confesses to someone who would reduce his share, he is given the surplus that he
would gain by denying compared to what he would gain by confessing. The practice in
this is that you calculate the inheritance scenario for denial, then for confession, and
compare their totals until a common number is reached. If they are identical, one
suffices, and the one confessed about is given the surplus of what the confessor holds
in denial. If they are nested, the larger suffices, so you divide it by the smaller, then
multiply what each heir holds in the smaller by the quotient. If they are disparate, you
multiply one by the other, then multiply what each heir holds in one by the total of the
other, and vice versa. If they are compatible, you multiply the common factor of one by
the entirety of the other, then multiply what each heir holds in one by the common factor
of the other, and vice versa.
Example: Husband and son, the son confesses to a daughter. The scenario for denial is
four, likewise for confession. The confessor holds three in denial and two in confession,
so the one confessed about is given one, which is the surplus of what the confessor
holds. If the son confesses to a son, they are nested: denial is four, confession is eight;
the confessor holds six in denial, three in confession, so the one confessed about is
given three. If three brothers, one confesses to a fourth brother, they are disparate:
denial is three, confession is four, so multiply one by the other to get twelve; the
confessor has four in denial, three in confession, so the one confessed about is given
one.
Clarification: There are four conceivable scenarios in this chapter:
1. The confessor and the one confessed about are united; the practice is as
previously stated.
2. The one confessed about is one, but the confessors are multiple; the one
confessed about receives from each confessor what the confession reduced from
his share, and this is summed for him.
3. The confessor is one, but the ones confessed about are multiple; they divide the
surplus the confessor holds according to their respective shares.
4. Both the confessors and those confessed about are multiple; each one
confessed about receives from each confessor what he confessed to him.
(Section Three: On Settlement)
Settlement (sulh) is of three types: First: The heir settles to forfeit his entire share; the
practice is to calculate the scenario, drop his share, and divide the estate among the
remainder. Second: He settles for less than his share, such as giving a third or a quarter
of his share; the practice is to take from his share the portion settled for and divide it
among the heirs, either by heads if the settlement is by heads, or by shares if by shares.
The one settling joins them if stipulated, or is excluded if not stipulated, and he is given
the remainder of his share. If the portion divides evenly, there is no problem; if not, you
multiply the compatible heads or shares in the common factor, and all in the case of
disparity, in the base scenario, and the solution is from the total. Then multiply what
each heir holds by what you multiplied in the base scenario, then multiply the settlement
portion by what you multiplied in the base scenario, then divide and sum for each heir
what he receives from the scenario and the settlement.
Third type: He settles for more than his share; the practice is to divide the portion settled
for from the denominator, then drop the portion from the denominator, and divide the
remainder according to the shares of the other heirs excluding the one who settled. If it
divides evenly, there is no problem; if not, multiply the shares or their common factor in
the denominator, and the solution is from the total. Then give the one settling what he
settled for, and divide the remainder among the other heirs.
Example: Someone leaves a mother, two sons, and a daughter. The scenario is from
six; one of the sons has two. If he settles to forfeit his share, four remain, and the estate
is divided among them. If he settles for half his share, which is one, divide it among the
four if by shares, or among the three if by heads; if the settler joins them by his head,
divide it among four and proceed as previously stated. If he settles for three-fifths of the
estate, make the denominator five, drop three, and divide the remainder, which is two,
among the other heirs as mentioned.
[Al-Qawanin al-Fiqhiyya, pp. 435–438]
Confession of Zina (illicit sexual intercourse) four times necessitates the prescribed
punishment (hadd)
1.
Allah the Exalted said:
{And those of your women who commit the indecency, bring against them four
witnesses from among you. If they testify, then confine them to the houses until
death takes them or Allah makes for them a way.} [Surat al-Nisa, verse 15]
2.
Malik: From Ibn Shihab, who informed him that a man confessed to zina during
the time of the Messenger of Allah (peace be upon him), and testified against
himself four times, so the Messenger of Allah (peace be upon him) ordered him
to be stoned. Ibn Shihab said: For this reason, a man is held to his confession
against himself.
3.
Malik: From Ibn Shihab, from Ubayd Allah ibn Abdullah ibn Utbah ibn Mas’ud,
from Abdullah ibn Abbas, who said: I heard Umar ibn al-Khattab say: Stoning is a
right in the Book of Allah Almighty for whoever commits zina among men and
women if they are muhsan (legally married), if evidence is established against
them, or pregnancy, or confession.
4.
Malik: From Yahya ibn Sa’id, from Sulayman ibn Yasar, from Abu Waqqid al-
Laythi, that Umar ibn al-Khattab was in Syria when a man came to him and
mentioned that he found a man with his wife. Umar ibn al-Khattab sent Abu
Waqqid al-Laythi to his wife to question her about it. He went to her, and there
were women around her, and mentioned to her what her husband had said to
Umar ibn al-Khattab, and told her she would not be held by his word, and kept
prompting her similarly to make her recant, but she refused to recant and
persisted in her confession, so Umar ordered her to be stoned.
Malik, with his chain: That a man from Aslam came to the Messenger of Allah (peace be
upon him) and said: The other [man] committed zina. The Messenger of Allah turned
away from him three times, each time turning away, until he pressed him, so the
Messenger of Allah (peace be upon him) sent to his family and asked: "Is he ill or mad?"
They said, "O Messenger of Allah, he is healthy." The Messenger of Allah (peace be
upon him) said: "Is he a virgin or previously married?" They said, "Previously married, O
Messenger of Allah." So the Messenger of Allah ordered him to be stoned. —
Abridged—
I said: Upon this, the scholars agree. His statement "he testified against himself four
times" is used by Abu Hanifa as evidence that it is required to confess four times in four
separate sessions; in some narrations, it is mentioned that he came from four
directions. Al-Shafi’i interpreted it as meaning he was turned away repeatedly due to a
lingering doubt about his case, hence the thorough investigation: "Is he mad?" In some
narrations: "Perhaps you kissed, or touched, or looked?" He said, "No, O Messenger of
Allah." He said: "Did you have intercourse with her?" and did not use euphemism.
The statement of Umar "or pregnancy": Malik held that a pregnant woman who has no
husband is stoned, even if she does not confess and no evidence of her zina is
established. According to the majority, the meaning of this division is that confession is
initially (without pregnancy), and evidence is initially (without pregnancy), or there is
pregnancy that arouses suspicion, so investigation is made until confession is given or
evidence is established.
[Al-Musawwa from the Hadiths of al-Muwatta’, vol. 2, pp. 283–284]
Legal Judgments (al-Aqdhiya) 1 – Sahnun said to Ibn al-Qasim: What is Malik’s opinion
regarding two litigants who come to the judge, and the judge discerns the truth for one
of them and wishes to issue a judgment against the one upon whom the truth has
become clear?
Ibn al-Qasim said: I heard Malik say: When the basis for judgment in a case is
established—if both litigants present their proofs and the judge understands them and
wishes to judge between them—then the judge should say to them, “Do you have any
further evidence?” If they say, “No,” he should decide between them and render the
judgment. If they then return afterward seeking to overturn that judgment, it is not
accepted from them unless they bring forth something for which there is a legitimate
basis.
2 – Sahnun said: What is the meaning of Malik’s statement: “for which there is a
legitimate basis”? Ibn al-Qasim said: Its meaning is that if someone brings a witness
before a judge who does not accept testimony with an oath, and the litigant says, “I
know of no other witness,” so the judge rules against him, but afterward he is able to
produce another witness, then the judge shall rule with this new evidence. And anything
similar to this is what Malik meant by “a legitimate basis for the claim.”
3 – Sahnun said to Ibn al-Qasim: What is your view if a man dies on a journey and there
are no Muslims with him—can the testimony of the non-Muslims who are with him be
accepted if he made a bequest? Ibn al-Qasim said: Malik did not permit the testimony of
any non-Muslim, whether in travel or at home, and I do not see it as permissible.
Coercion Lifts the Prescribed Punishment [Al-Mudawwana al-Kubra 4/69]
1 – Malik, from Nafi‘: A slave was in charge of the government’s fifth-share slaves, and
he coerced a slave-girl among them, so ‘Umar ibn al-Khattab flogged him and banished
him, but did not flog the slave-girl because she had been coerced.
Coercion Lifts the Prescribed Punishment [Al-Khitab]
2 – Malik, from Rabi‘a ibn Abi ‘Abd al-Rahman: ‘Umar ibn al-Khattab said to a man who
had taken a slave-girl belonging to his wife with him on a journey and had intercourse
with her. His wife became jealous and reported this to ‘Umar ibn al-Khattab, so he
questioned the man, who said: “She gave her to me.” The wife said: “I gave her to him.”
‘Umar said: “You must bring me proof, or I will stone you with your own stones.” Then
the wife admitted that she had given her to him.
3 – Malik, with his chain of transmission: ‘Umar ibn al-Kh 1 – Malik said: It is not
appropriate for anyone to lead (others) in voluntary prayer sitting down. And if
something befalls the imam of a group such that he cannot pray with them except
sitting, he should appoint someone else to lead the people, and he himself should return
to the row and pray with the congregation, following the prayer of the imam. Ibn al-
Qasim said: We asked Malik about a sick person who cannot stand, so he prays sitting
and people pray following his prayer. He said: It is not appropriate for anyone to do that.
And he narrated to me from Ali, from Sufyan, from Jabir ibn Yazid, from al-Shaʿbi, that
the Messenger of Allah, peace and blessings be upon him, said: "A man should not lead
a people in prayer sitting."
[al-Mudawwana al-Kubra 1/482]
On
Imamate and Congregation
And it contains four chapters
Imamate and Congregation
The first chapter: On the description of imams, and there are four types: obligatory,
those prevented from imamate, disliked, and recommended. The obligatory in the
madhhab are seven: (first) Islam; (second) sanity—these two are agreed upon; (third)
puberty—it is stipulated for the obligatory prayers according to the well-known opinion,
and it is said it is only stipulated for Friday prayer, in agreement with al-Shafiʿi; (fourth)
maleness—al-Shafiʿi said a woman may lead (other) women; (fifth) uprightness—there
is disagreement in the madhhab and others, as a precaution against the openly
immoral, and there are five opinions: permissibility, absolute prohibition, permissibility if
his immorality is not in prayer, permissibility if his immorality is not established, and
permissibility if he has a (legal) interpretation, such as one who permits nabidh (date
wine). As for the innovator in beliefs, there are four opinions regarding his imamate; the
third distinguishes between a ruler, for whom imamate is permitted, and others; and if
we declare them disbelievers, imamate is not permitted, unlike the one who differs in
subsidiary matters, whose imamate is permitted by agreement. (Sixth) Knowledge of
what is necessary of fiqh and recitation; as for the ignorant of the rulings of prayer, his
imamate is not permitted by agreement, likewise one who cannot recite al-Fatiha and
the mute, unlike the one with a speech impediment. As for one who makes grammatical
mistakes in recitation, there are four opinions; the third distinguishes between mistakes
in Umm al-Qur'an (al-Fatiha) and other surahs; the fourth distinguishes between
mistakes that change the meaning, such as ‘anʿamta’ (with damma or kasra), and those
that do not. (Seventh) Ability to fulfill the pillars; so whoever can only gesture for bowing
and prostration does not lead those who bow and prostrate, but leads someone like
himself; unlike one unable to stand, he does not pray sitting for those able to stand in
the madhhab, but al-Shafiʿi and Abu Hanifa said the sitting person may lead, and Ibn
Hanbal said he leads them sitting. As for the attributes that prevent (imamate), they are
the obligatory ones. As for the disliked, they are the slave and the child of zina if both
are permanent (in their roles), with disagreement as to permissibility; the castrated, the
hermaphrodite, and it is said the uncircumcised, the blind, the paralyzed, and the one
with a severed limb. As for the recommended, they are knowledge, piety, noble lineage,
age, good character, dignified appearance, voice, clothing, and every praiseworthy
attribute.
A branch on preference among imams: One with a distinguishing merit is preferred after
the obligatory conditions; the ruler and the owner of the house have more right than
others; the jurist is preferred over the reciter, contrary to Abu Hanifa; the most
knowledgeable is preferred over the most righteous; if they are equal in every respect
and dispute without arrogance, then draw lots among them.
(Second chapter: On the congregational prayer, with three issues.
First issue: Its ruling—congregation in obligatory prayers is a confirmed sunnah, and the
Zahiris made it obligatory. It is permitted to leave it for an excuse: violent rain at night,
illness, nursing the sick, fear of the ruler or a creditor who is unable to pay, or fear of
retaliation while hoping for pardon, and for hunger—one begins with food.
Second issue: On repetition—whoever prayed in congregation does not repeat in
another, contrary to Ibn Hanbal; whoever prayed alone may repeat in congregation
except for Maghrib, and Abu Hanifa also excepted ‘Asr, Abu Thawr added Fajr, al-
Shafiʿi did not except any. Whoever prayed in one of the three mosques, alone or in
congregation, does not repeat elsewhere, and it is not permitted to hold two
congregations in one mosque (according to) Ibn Hanbal; the permanent imam alone is
like the congregation.
Third issue: Whoever is praying alone in the mosque and the prayer is established—if
he fears missing a rakʿa with the imam, he breaks off with salam. If not, and he has
completed a rakʿa, he completes two rakʿas, otherwise he breaks off.
(Third chapter: On the description of following the imam, with five issues:
First issue: Agreement of intention is stipulated between imam and follower in obligatory
prayer—so one does not pray Zuhr behind one praying ‘Asr, contrary to al-Shafiʿi; it is
permitted for the one praying obligatory to lead the one praying voluntary by agreement,
but not the reverse, contrary to al-Shafiʿi.
Second issue: The follower is commanded to follow the imam, not doing anything until
the imam does it; if he precedes the imam in the opening takbir or salam, his prayer is
invalid; if he matches him, there are two opinions; if he precedes in other things, he has
done wrong but his prayer is not invalid.
Third issue: If the imam prays in a state of janaba or without wudu, his prayer is invalid
by agreement, whether intentionally or forgetfully; the follower’s prayer is invalid if
intentional, but not if forgetful; al-Shafiʿi said it is not invalid in either case but he sins if
intentional by consensus; Abu Hanifa said it is invalid in both.
Fourth issue: Preferred positions for the follower are four—one man stands to the right
of the imam; two stand behind him; Abu Hanifa said to his right and left; three or more
stand behind; a woman stands behind if alone, and behind men if present.
Fifth issue: On rows—the first row is best, those of virtue are nearest the imam;
whoever finds no space in the row prays behind it and does not pull a man to him,
contrary to al-Shafiʿi; whoever prays alone behind the row, his prayer is valid, contrary
to Ibn Hanbal; if the worshipper sees a gap in front, he walks to it if near—near meaning
two or three rows.
A branch: It is disliked to pray between pillars (columns), and the imam should not pray
on a place higher than the followers except in a small amount, not due to arrogance;
those on ships pray with one imam in one ship; if the wind separates them, they are like
those whose imam is prevented from leading. The prayer of one who listens is
permissible according to the sound opinion; the imam does not wait for the latecomer
according to the three; if one arrives and the imam is bowing, there is difference
whether he bows in place or waits until reaching the row; if he bows in place, he walks
to the row while bowing, and al-Shafiʿi disliked it.
(Fourth chapter: On substitution (istikhlaf)—if something happens to the imam during
prayer preventing him from leading, such as inability to fulfill a pillar, or something
preventing prayer entirely, such as a state of impurity or remembering it, he leaves
immediately and appoints by gesture or speech someone from the congregation to
complete the prayer, provided the substitute entered the prayer before the excuse
occurred; if he does not appoint, the congregation appoints one of themselves; if they
do not, one steps forward; if none do, they pray individually and their prayer is valid
except for Friday prayer; the substitute begins from where the first imam stopped. Al-
Shafiʿi said substitution is not permitted.
[al-Qawanin al-Fiqhiyya, pp. 82–85]
Imamate and Succession
And it contains two issues The First Issue: On Establishing the Imamate of the Four
Rightly Guided Caliphs, may Allah be pleased with them, and the evidence for the
Imamate of all of them from three perspectives. The first: Each of them fulfilled all the
conditions of Imamate perfectly. The second: The Muslims in their respective times
unanimously pledged allegiance to each of them and entered under their authority, and
consensus (ijma‘) is a binding proof. The third: What each of them possessed of
companionship with the Prophet, migration, illustrious virtues, Allah’s praise for them,
and the testimony of the Truthful and Trusted (the Messenger of Allah) that they are
people of Paradise. As for Abu Bakr and ‘Umar, may Allah be pleased with them, the
Messenger of Allah (peace be upon him) indicated their succession and commanded
following them, and he put Abu Bakr forward for the Farewell Pilgrimage and for leading
the people in prayer during his final illness, and that is evidence of his succession. Then
Abu Bakr appointed ‘Umar as his successor. Then ‘Umar made the matter a
consultation among six men, who agreed to appoint ‘Uthman until he was killed
wrongfully, as attested by the Prophet and his promise of Paradise for him on that
account. Then the one most entitled after him was ‘Ali, may Allah ennoble his face, due
to his noble rank and eminent virtues. As for what occurred between ‘Ali and Mu‘awiyah
and those companions with each of them, the best approach is to refrain from
discussing it, and to mention them in the best way, and to seek the best interpretation
for them, for the matter was a place of ijtihad (independent legal reasoning). As for ‘Ali
and those with him, they were upon the truth because they exercised ijtihad and were
correct, so they are rewarded. As for Mu‘awiyah and those with him, they exercised
ijtihad and erred, so they are excused, and they and the rest of the Companions should
be respected, because of what has come in the Qur’an of Allah’s praise for them and
Chapter One: On What Makes a Slave Woman an Umm Walad
If a man has intercourse with his slave woman and she becomes pregnant, she
becomes his Umm Walad, whether she gives birth to a fully formed child, a lump of
flesh (mudgha), a clot (alaqa), or blood, so long as it is known to be a pregnancy.
Ashhab said: She does not become Umm Walad by the mere presence of congealed
blood. Al-Shafi‘i said: She does not become Umm Walad until some part of the child’s
form is completed, such as an eye, a fingernail, or something similar. If someone
marries a slave woman and then purchases her while she is pregnant by him, there is
disagreement as to whether she becomes Umm Walad by that pregnancy or not. The
slave woman of a male slave does not become his Umm Walad by what she bears
during his period of slavery. There is disagreement regarding the mudabbar (slave freed
upon death), the mukatab (slave with a contract for freedom), and the slave freed at a
specified term.
Chapter Two: Rulings Concerning Umm Walad
As for her status during the lifetime of her master, her rulings are as follows: 140. Her
rental, Her property, The rulings of Umm Walad, The rulings of the slave woman
concerning prohibition of inheritance, the hadd punishment for zina, and other matters.
Her master may have intercourse with her by consensus. He may only employ her in
light tasks, contrary to al-Shafi‘i. He may not sell her according to the majority, in
agreement with the position of ‘Umar and ‘Uthman, may Allah be pleased with them.
The Zahiris permitted her sale, in agreement with Abu Bakr and ‘Ali, may Allah be
pleased with them. If she commits an offense, she is not surrendered as an ordinary
slave woman would be; rather, she is ransomed by the lesser of the compensation for
the offense or the value of her neck (i.e., her price as a slave). If her master dies, Umm
Walad is emancipated from his estate, even if he leaves nothing else, and she joins the
free in matters of inheritance, hadd, janabah, and other rulings.
Chapter Three: On the Rights of the Child
Whoever acknowledges having intercourse with his slave woman, whatever child she
brings forth is attributed to him, even if he practiced coitus interruptus, provided she
gives birth within a period not less than six months and not more than the maximum
pregnancy term, whether she gives birth during his lifetime, after his death, or after he
has freed her—except if he claims istibra’ (that she was cleared of pregnancy), and did
not have intercourse with her after that; in this case, his claim is accepted and the child
is not attributed to him. There is disagreement as to whether his claim is accepted by
oath or without oath, and whether he may deny the child without resorting to li‘an
(mutual cursing). If she does not give birth and claims she bore his child, she is not
believed and does not become Umm Walad until two women testify to her giving birth
by him. If he denies intercourse and she produces two witnesses to it and gives birth,
the correct opinion is that this is equivalent to his acknowledgment of intercourse.
[Al-Qawanin al-Fiqhiyya, pp. 415–416]
Property, Debts, and Their Fulfillment [See: Qada’ (Judgment) and Iqtidha’ (Demand)]
Property and Its Related Commands and Prohibitions
As for the commanded matters, they are three: renunciation (zuhd), piety (wara‘), and
spending. As for the prohibited matters, they are the three opposites: the opposite of
renunciation is greed, the opposite of piety is earning wealth unlawfully, and the
opposite of spending is stinginess. Each one is discussed with its opposite in separate
sections.
Chapter One: On Zuhd (Renunciation)
Its meaning is little or no desire for wealth, and the removal of love for the world from
the heart. Complete zuhd is renunciation of all worldly shares: status, wealth, honor,
praise, fame, luxury in food and clothing, excess in living, and the like. Zuhd is not
abandoning the lawful nor wasting wealth; a wealthy person may be a zahid if his heart
is emptied of the world, and a poor person may be worldly if his greed is intense and his
heart is filled with the world.
Issue: People have differed regarding preference between poverty and wealth. Most
jurists hold that wealth is superior, arguing that the wealthy can perform righteous deeds
that the poor cannot, such as charity, freeing slaves, and building mosques. Most Sufis
hold that poverty is superior, citing texts to that effect. True preference is only correct
after detail: whoever fulfills the rights of Allah in wealth but not in poverty, wealth is
better for him by consensus; whoever fulfills them in poverty but not in wealth, poverty is
better for him by consensus. The disagreement concerns one who fulfills Allah’s rights
in both states. The rights of wealth are fulfilling obligations, performing recommended
acts, gratitude to Allah, and not transgressing due to wealth. The rights of poverty are
patience, contentment, not seeking increase, and despairing of what is in people’s
hands. Blessed is the grateful rich or the patient poor, though they are few.
Chapter Two: On Wara‘ (Piety)
It is of three degrees: piety from haram (forbidden), which is obligatory; piety from
doubtful matters, which is strongly recommended if not obligatory; and piety from the
lawful out of fear of falling into the forbidden, which is virtuous. This is to abandon what
is permissible out of caution from what is not permissible. The basis of this is the saying
of the Prophet (peace be upon him): “The lawful is clear and the unlawful is clear, and
between them are doubtful matters not known by many people. Whoever avoids the
doubtful has protected his religion and honor; whoever falls into the doubtful falls into
the unlawful, like a shepherd grazing around a sanctuary who is likely to enter it” (to the
end of the hadith). Thus it is said this hadith is a quarter of knowledge, or a third.
Issue: On dealing with people whose wealth is unlawful. Their situation is twofold: first, if
the unlawful wealth is still present with the usurper, thief, or the like, it is not permissible
to buy it from him, nor to sell with it if it is a tangible item, nor to eat it if it is food, nor to
wear it if it is clothing, nor to accept any of it as a gift, nor to take it as payment of a
debt. Whoever does any of this is like the usurper. The second situation is if the
unlawful wealth has left his possession and become a debt upon him; this has three
circumstances: (1) If most of his wealth is lawful, Ibn al-Qasim permitted dealing with
him, while Asbagh forbade it. (2) If most of his wealth is unlawful, dealing with him is
discouraged according to Ibn al-Qasim and forbidden according to Asbagh. (3) If all his
wealth is unlawful, and he never possessed lawful wealth, then dealing with him is
forbidden; but if he possesses lawful wealth yet has acquired unlawful wealth that
exceeds and consumes his lawful wealth, there is disagreement regarding
permissibility, with some distinguishing between transactions with compensation (such
as sales, which are permitted) and gifts or the like (which are not permitted).
Chapter Three: On Spending
It is of two types: (1) Obligatory, and withholding it is forbidden, such as zakat,
obligatory expenditures, feeding animals, and paying debts. (2) Recommended, such as
feeding the hungry, clothing the naked, freeing slaves, building mosques and bridges,
endowments for good causes, assisting the indebted, spending in jihad, and the like.
The best of these is maintaining family ties, prioritizing the closest relatives, and
prioritizing the most important expenditures.
[Al-Qawanin al-Fiqhiyya, pp. 471–473]
Orphans’ Property
Completing the Dowry of Orphans
1. Allah the Exalted said: “They ask you for a ruling concerning women. Say: Allah
gives you a ruling concerning them, and what is recited to you in the Book
concerning the orphan girls whom you do not give what is prescribed for them,
and you desire to marry them, and the oppressed among children, and that you
should deal justly with orphans. And whatever good you do, indeed Allah is ever
Knowing of it.” [Surat al-Nisa’, verse 127]
The guardian may trade with the property of orphans and enter into partnerships, and
do what is in their best interest.
2.
Malik: It reached him that ‘Umar ibn al-Khattab said: “Trade with the property of
orphans so that zakat does not consume it.”
3.
Malik: It reached him that ‘Aisha, the wife of the Prophet (peace be upon him),
used to give the property of orphans to those who would trade for them with it.
4.
Malik: From Yahya ibn Sa‘id, that he bought for his nephews some property in a
chamber, and that property was later sold for much more.
Malik said: There is no harm in trading with the property of orphans for their benefit if
the guardian is trustworthy; I do not see that he is liable for loss.
I said, and al-Shafi‘i holds likewise in al-Minhaj: The guardian may sell... And deferred
for benefit, and he pays zakat on his wealth and spends on him according to what is
customary. His wealth is given as a loan. [Al-Musawwa from the Hadith of the Muwatta,
vol. 2, pp. 77–78]
Waiting for prayer and its iqama in the mosques; the virtue of sitting in the mosque
awaiting prayer and walking to it
1 – Malik: from Abu al-Zinad, from al-A‘raj, from Abu Huraira, that the Messenger of
Allah, peace and blessings be upon him, said: “The angels pray for one of you as long
as he remains in his place of prayer in which he prays, as long as he does not break
[his wudu]: ‘O Allah, forgive him, O Allah, have mercy on him.’” Yahya said: Malik said: I
do not see his saying ‘as long as he does not break’ to mean anything except that which
nullifies wudu.
2 – Malik: from Abu al-Zinad, from al-A‘raj, from Abu Huraira, that the Messenger of
Allah, peace and blessings be upon him, said: “One of you remains in prayer as long as
the prayer keeps him, and nothing prevents him from returning to his family except the
prayer.”
3 – Malik: from al-‘Ala’ ibn ‘Abd al-Rahman ibn Ya‘qub, from his father, from Abu
Huraira, that the Messenger of Allah, peace and blessings be upon him, said: “Shall I
not inform you of that by which Allah erases sins and raises ranks? Perfecting wudu in
times of difficulty, many steps to the mosque, and waiting for prayer after prayer; that is
ribat, that is ribat, that is ribat.” [Al-Musawwa from the Hadith of the Muwatta, vol. 1, pp.
125–126]
Al-Andalus and its conquest, and mention of its kings [See: The Conquest of Al-Andalus
and Mention of Its Kings]
Preoccupation of thought in prayer
1 – Malik said: I dislike that a man prays while there is a dinar or dirham or anything of
things in his mouth. Ibn al-Qasim said: If he does so, I do not see that he must repeat
[the prayer]. Ibn al-Qasim said: Malik used to dislike that a man pray while there is
bread or something of food or other similar things in his palate, like what is stuffed in the
sleeve. He said: Malik disliked that a man crack his fingers in prayer. Ibn Wahb, from
Ibn Abi Dhi’b, from Shu‘bah, the freedman of Ibn Abbas, said: I prayed beside Ibn
Abbas and cracked my fingers. When he finished praying, he said: “May you lose your
mother! Do you crack your fingers while you are in prayer?”
[Al-Mudawwana al-Kubra, vol. 1, p. 103]
Listening attentively to the khutba
1 – I asked Malik: When is it obligatory for the people to face the imam with their faces?
He said: When he stands to give the khutba, not when he comes out.
Listening attentively to the khutba.
2 – Malik said: There is no harm in speaking after the imam descends from the minbar
until he opens the prayer.
3 – Ibn al-Qasim said: We asked Malik about a man who engages in dhikr while the
imam is giving the khutba. He said: If it is something hidden, secretly within himself,
there is no harm in it. He said: But I prefer that he listen and pay attention.
4 – Malik said: It is obligatory for one who does not hear the imam to listen attentively
just as it is obligatory for one who hears him.
5 – Malik said: Regarding one who sneezes while the imam is giving the khutba, he
should praise Allah secretly within himself, and no one should say “may Allah have
mercy on you” while the imam is giving the khutba.
6 – Malik said: There is no harm in sitting cross-legged [ihtiba’] on Friday while the
imam is giving the khutba.
7 – Malik said: No one should speak during the sitting of the imam between the two
khutbas, and there is no harm in speaking after he descends from the minbar until he
enters into prayer.
8 – Sahnun, from Ibn Wahb, from Maslama ibn Ali, from ‘Abd al-Rahman ibn Yazid,
from Ibn Shihab, that the Messenger of Allah, peace and blessings be upon him, said:
“When the imam sits on the minbar on Friday, face him with your faces, listen to him
with your ears, and watch him with your eyes.”
[Al-Mudawwana al-Kubra, vol. 1, pp. 138–139]
Communication of the one praying with someone outside the prayer
1 – Malik said: If a man is in prayer and another man comes to him and informs him of
something, whether the prayer is obligatory or supererogatory, and he listens to him and
pays attention, he said: If it is something light, there is no harm in it.
[Al-Mudawwana al-Kubra, vol. 1, pp. 102–103]
241 The Calamity of Sins
The Calamity of Sins
Punishment for Certain Types of Sin
1 – Malik: From Yahya ibn Sa’id, who reported from Abdullah ibn Abbas, who said: “No
act of embezzlement (ghulul) ever appears among a people except that terror is cast
into their hearts; no fornication (zina) spreads among a people except that death
becomes frequent among them; no people ever diminish the measure and weight
except that their provision is cut off; no people ever judge by other than the truth except
that bloodshed becomes widespread among them; and no people ever betray a
covenant except that the enemy is given authority over them.”
[Al-Musawwa from the Ahadith of Al-Muwatta 2/456]
Swallowing What is Between the Teeth During Prayer
1 – Malik said regarding one who has food between his teeth and swallows it during his
prayer: that does not invalidate his prayer.
[Al-Mudawwana al-Kubra 1/103]
Building a House Above a Mosque
1 – Ibn al-Qasim said: I asked Malik about a man who builds a mosque and then builds
a house above it?
He said: No, that is not allowed. And Malik mentioned that Umar ibn Abd al-Aziz used to
sleep on the roof of the mosque in Medina during the summer, and no woman would
approach him there.
2 – Malik said: As for one who builds above the mosque intending to make it a
residence for his family, Malik meant that if it becomes a house and he lives in it with his
family, and thus has intercourse with his wife on the roof of the mosque, Malik strongly
disliked that.
[Al-Mudawwana al-Kubra 3/399]
Urinating While Standing
2430
The Daughter and Her Inheritance
[See the section on inheritance and her share...]
Urinating While Standing
Permissibility of urinating while standing, though it is contrary to what is preferable
1 – Malik: From Abdullah ibn Dinar, who said: I saw Abdullah ibn Umar urinate while
standing.
I say: It is established that the Prophet (peace be upon him) said: “Do not urinate while
standing.” The majority of scholars hold this as a prohibition for the sake of discipline.
[Al-Musawwa from the Ahadith of Al-Muwatta 1/79]
Urine of Adults and Children
The purification of the ground from urine by pouring a bucket of water over it
1 – Malik: From Yahya ibn Sa’id, who said: A Bedouin entered the mosque, uncovered
his private parts to urinate, and the people shouted at him until their voices rose. The
Messenger of Allah (peace be upon him) said: “Leave him.” So they left him, and he
urinated. Then the Messenger of Allah (peace be upon him) ordered a bucket of water
to be poured over that place.
2 – I say: Al-Shafi’i said: If urine or any other liquid impurity falls on the ground, and
water is poured over it until the water overwhelms it, the ground is purified. The runoff
water is pure if it does not change (in color, smell, or taste), but it does not itself purify.
He differentiated between impurity coming onto water and water coming onto impurity.
According to the Hanafis, the runoff water is impure, and the ground is not purified until
the runoff is removed.
Purifying a Garment from the Urine of a Boy Who Has Not Eaten Food by Sprinkling
3 – Malik: From Hisham ibn Urwah, from his father, from Aisha, the wife of the Prophet
(peace be upon him), who said: The Messenger of Allah (peace be upon him) was
brought a boy who urinated on his garment, so the Messenger of Allah (peace be upon
him) called for water and followed it with water.
244
4 – Malik: From Ibn Shihab, from Ubaydullah ibn Abdullah ibn Utbah ibn Mas’ud, from
Umm Qays bint Mihsan, who brought her young son who had not yet eaten food to the
Messenger of Allah (peace be upon him). The Messenger of Allah (peace be upon him)
seated him in his lap, and the boy urinated on his garment. The Messenger of Allah
(peace be upon him) called for water and sprinkled it but did not wash it.
I say: Al-Shafi’i said: The urine of a boy who has not eaten food is purified by sprinkling,
but the urine of a girl must be washed. Al-Baghawi explained that the urine of a boy is
impure, but sprinkling suffices—that is, water is sprinkled over it so that it reaches all of
it, thus purifying it without pouring or scrubbing. Abu Hanifa said: Both must be washed,
and it may be said, from Abu Hanifa’s perspective, that “sprinkling” means a light
washing, while “washing” means pouring and scrubbing. The basis of the issue is that
purification is achieved by removing the substance and trace of impurity. The urine of a
girl is more severe and foul, so it requires more thorough washing.
[Al-Musawwa from the Ahadith of Al-Muwatta 1/97–98]
Eloquence and Its Effect on People
The Prophet’s Saying: “Verily, in eloquence there is sorcery.”
1 – Malik: From Zayd ibn Aslam, who said: Two men from the East came and spoke
eloquently, and the people were amazed at their eloquence. The Messenger of Allah
(peace be upon him) said: “Verily, some eloquence is sorcery,” or, “Verily, in eloquence
there is sorcery.”
I say: The scholars differed in interpreting this statement. Some understood it as
censure, saying: Some eloquence brings its possessor the same sin as a sorcerer gains
by his sorcery, for he affects speech without need, mixes in hypocrisy, lies, and makes
falsehood appear true. Others interpreted it as praise, saying: It is as effective as
sorcery, except that this is lawful and sorcery is forbidden. An indication for this is in
another hadith: “Verily, in poetry there is wisdom.”
[Al-Musawwa from the Ahadith of Al-Muwatta 2/403]
Sale with Deferred Payment
Deferred Sale
1 – Sahnun said to Ibn al-Qasim: What if I sell a garment for one hundred dirhams to be
paid at a deferred date, then buy it back for one hundred dirhams at that same deferred
date—is that valid according to Malik?
He said: Yes, there is nothing wrong with that.
Ibn al-Qasim said: I asked, what if I buy it for a later date for one hundred dirhams?
He said: There is nothing wrong with that as well.
2 – Sahnun said: What if I buy it for more than the price at a later date—such as selling
it for one hundred to be paid in a month, then buying it for one hundred fifty to be paid in
two months?
Ibn al-Qasim said: That is not valid unless it is a set-off (muqassah) when the first term
comes due—he sets off one hundred for one hundred, and the remaining fifty remains
due at its term. Then he takes it. But to take the one hundred he sold the garment for at
its due date, and owe one hundred fifty at the due date of the second sale—this would
be like exchanging one hundred dirhams for one hundred fifty at different terms, which
is not valid.
Sahnun said to Ibn al-Qasim: What if I sold a garment for one hundred Muhammadi
dirhams to be paid in a month, then bought it for one hundred Yazidi dirhams at the due
date—is this permissible or not?
He said: There is no good in this, as if he sold Muhammadi for Yazidi dirhams on a
deferred basis.
4 – Waki’ from Sufyan from Sulayman al-Taymi from Hibban ibn Umayr al-Qaysi from
Ibn Abbas, who said regarding a man selling silk on deferred payment: he disliked that
he buy it for cash (i.e., for less than he sold it for).
[Al-Mudawwana al-Kubra 3/181–182]
Sale and Exclusion Within It
1–
Sale and Exclusion Within It
Exclusion in sale is permissible if it is specified
2460
– Malik from Rabi’ah ibn Abi Abd al-Rahman that al-Qasim ibn Muhammad used to sell
the fruit of his orchard and exclude some of it.
2 – Malik: From Abdullah ibn Abi Bakr that his grandfather, Muhammad ibn Amr ibn
Hazm, sold the fruit of his orchard called al-Afraq for four thousand dirhams and
excluded fruit worth eight hundred dirhams.
3 – Malik: From Abu al-Rijal Muhammad ibn Abd al-Rahman ibn Harithah, that his
mother, Amrah bint Abd al-Rahman, used to sell her fruits and exclude some of them.
I say: Al-Nawawi said in his commentary on Muslim, in the narration of al-Tirmidhi with a
sound chain: “He forbade exclusion (thunya) unless it is known.” He said: “Thunya that
invalidates a sale” is when one says: ‘I sold you this heap except for some of it,’ or
‘these trees except for some of them’—the sale is invalid because the excluded part is
unknown. But if he says: ‘I sold you for a thousand except one dirham,’ the sale is valid
by consensus. If he sells a heap except for a sa’ (measure) of it, the sale is invalid
according to al-Shafi’i, but Malik considered it valid to exclude up to one-third of it. If he
sells the fruit of some palm trees and excludes ten sa’ for the seller, the view of al-
Shafi’i, Abu Hanifa, and all the scholars is that the sale is invalid. Malik and a group of
the scholars of Medina said: It is permissible as long as the excluded amount does not
exceed one-third of the fruit.
[Al-Musawwa from the Ahadith of Al-Muwatta 2/35]
Sale with Deferred Payment If someone says: “Buy such-and-such for me so that I may
buy it from you at a deferred term,” this is not a contract.
1 – Malik: It has reached him that a man said to another: “Buy this camel for me with
cash so that I may buy it from you on credit (deferred payment).” Abdullah ibn Umar
was asked about this and he disliked it and forbade it.
I said: This is the position of the people of knowledge. The statement of the man, “Buy
this camel for me,” is not a valid agency because he added, “so that I may buy it from
you,” nor is it a purchase, as the other party does not yet own it. Rather, it is a promise
and not a contract. If he intended it as a contract, it would be a sale of what one does
not possess, which is prohibited, and this is what Abdullah ibn Umar forbade. [Al-
Musawwa from the hadiths of Al-Muwatta, vol. 2, p. 27]
Sale until the harvest or until the juice is extracted
1 – Sahnun asked Ibn al-Qasim: What is Malik’s opinion regarding someone selling until
the harvest, or until the cutting, or until the juice is extracted, or until the grant, or
Nowruz, or Mahrajan, or the Christian Easter, or the Christian fast, or the Nativity? He
said: Malik said, “Whoever sells until the harvest, or until the cutting, or until the juice is
extracted, that is permissible because it is a known, defined time.”
Malik said: “If the grant has a known time, then selling until that time is permissible.”
2 – Ibn al-Qasim said: “We did not ask Malik about Nowruz, Mahrajan, Christian Easter,
Christian fast, or the Nativity, but if it is a known time, that is permissible and there is no
harm in it.”
3 – Sahnun ibn Sa’id said: “What if a man buys something to be delivered at harvest,
but the timing of the harvest varies, with its beginning in such-and-such a month and its
end a month later?”
Ibn al-Qasim said: “We asked Malik about this, and he said: One should look to the
harvest time in the region where the sale is made, considering the main period when
most of it is harvested, not the earliest or latest dates; the due date is based on that.”
4 – Sahnun said: Ibn Wahb informed me, and Ibn Jurayj informed him, that Amr ibn
Shu’ayb reported from Abdullah ibn Amr ibn al-As that the Messenger of Allah (peace
be upon him) commanded him to prepare an army. Abdullah said: ‘We have no mounts.’
The Prophet ordered him to purchase mounts on credit until the collector (of charity)
arrived. Abdullah then bought a camel for two camels, and camels for more camels,
with payment deferred until the collector’s arrival, by the order of the Messenger of Allah
(peace be upon him).
5 – Some scholars said: Sa’id ibn al-Musayyib, Sulayman ibn Yasar, Ibn Qusayt,
Abdullah ibn Abi Salamah, Ibn Shihab, and Rabi’ah all said: There is no harm in that.
6 – Ibn Wahb informed me from Abu Luhay’ah, from Ibn Abi Ja’far, from Nafi’: Ibn Umar
used to purchase on condition that the seller would settle when his income or his grant
arrived.
7 – He informed me from Maslamah ibn Ali: The Mothers of the Believers used to buy
on credit until their grants arrived. He informed me from Abdul Jabbar ibn Umar, from
Rabi’ah, from Ibn al-Musayyib, that he used to say: “Anything that is reliable and rarely
fails to materialize may be bought or sold for delivery at that time, such as a man buying
until the grant, or until the provision arrives, or similar known times.”
8 – Ibn Wahb said: From Sulayman ibn Bilal, from Amr ibn Nafi’, from Ibn al-Musayyib,
al-Qasim ibn Muhammad, and Salim ibn Abdullah: They saw no harm in selling until the
grant.
9 – Sahnun asked Ibn al-Qasim: “What if I say to a man: ‘Press your olives, for I have
taken the oil from you, every pound for a dirham,’ and he does so; is the sale binding
according to Malik?”
He said: “If there is no variation and it is a well-known matter, like buying wheat in its
ear after it has dried and ripened, every bushel for a dirham, then there is no harm in
that.”
10 – Ibn al-Qasim said: “But oil varies when extracted from the olives, so in my view, it
is not permissible unless it is stipulated: if it comes out good, I will take it for such-and-
such, and payment is not made, or it is stipulated that there is an option (khiyar), and
payment is not made, and the pressing is to be done within a short period, like ten days
or so. I see no harm in that, because I asked Malik about a man who, at harvest time,
goes to the farmers whose wheat has ripened and buys from them as they are
harvesting, paying them the price, and the process takes ten or fifteen days for
harvesting, threshing, and winnowing. Malik said: ‘This is a short period, so I hope there
is no harm in it.’”
11 – Sahnun said: “If the oil is reliably known in people’s experience regarding its
extraction and pressing in a short, well-known period as with wheat, what then?” Ibn al-
Qasim said: “I see no harm in paying for it if the pressing is soon, like the wheat harvest.
If it is variable, I do not see it as permissible unless he sells it to him on condition that if
it comes out as is known, he will take it, or with an option; there is no harm in that, as it
is a short period and there is no debt for debt, nor a commodity guaranteed by a specific
item.”
12 – Ashhab said: “Selling oil by measure, if the quality of the oil is known, and the like,
I see no harm in it. As for by the pound, if the quantity is known and does not vary, there
is no harm. If it does vary, then it is not permissible, as one does not know what he is
buying, because measure is known but weight is unknown.” [Al-Mudawwana al-Kubra,
vol. 3, pp. 217–218]
Sale with deferred price
Sale with deferred price
If one buys with a deferred price, it is not permissible for the buyer to pay before the due
date in exchange for the seller reducing part of his right.
1 – Malik, from Abu al-Zinad, from Yasar ibn Sa’id, from Ubayd Abu Salih, the freedman
of al-Saffah, who said: “I sold some cloth of mine to the people of Dar Nakhlah on credit,
then I wanted to travel to Kufa, so they offered that I reduce the amount they owed if
they paid me immediately. I asked Zayd ibn Thabit about this, and he said: ‘I do not
instruct you to consume this nor to feed it to others.’”
2 – Malik, from Uthman ibn Hafs ibn Khaldah, from Ibn Shihab, from Salim ibn Abdullah
ibn Umar: He was asked about a man who is owed a debt by another, due at a certain
time, and the creditor reduces the amount if the debtor pays early. Abdullah ibn Umar
disliked that and forbade it.
I said: This is the position of the people of knowledge. It is reported in the two Sahihs
that the Prophet (peace be upon him) said to Ka’b regarding his debt on Ibn Abi Hadra:
“O Ka’b.” He replied: “At your service, O Messenger of Allah.” The Prophet gestured
with his hand: “Reduce half your debt.” Ka’b said: “I have done so, O Messenger of
Allah.” The Prophet said: “Stand and settle it.” This is a settlement on half, meaning a
waiver of half. The scholars explained: The difference between this and the other
reports is that those reports concern deferred debts, while this concerns a current debt.
In Kitab al-Rahmah, there is consensus that if a person has a debt on someone due at a
future date, it is not permissible for him to reduce part of the debt in exchange for early
payment of the remainder, nor is it permissible for him to take part in cash and part in
goods before the due date. However, if the due date arrives, there is no harm in taking
part and waiving part, or in deferring to another term.
(I say): Debt is more significant than a loan, and it is not permissible to stipulate a term
in a loan, but in a sale with deferred payment, stipulating a term is permissible. [Al-
Musawwa from the hadiths of Al-Muwatta, vol. 2, pp. 47–48]
Sale with excess (tafadul) is not permissible
Sale with excess (tafadul) is not permissible
1 – Malik, from Abd al-Majid ibn Sahl ibn Abd al-Rahman ibn Awf, from Sa’id ibn al-
Musayyib, from Abu Sa’id al-Khudri, and from Abu Huraira, that... * The Messenger of
Allah, peace and blessings be upon him, appointed a man over Khaybar, and he came
to him with fine dates (janīb). The Messenger of Allah, peace and blessings be upon
him, said to him: “Are all the dates of Khaybar like this?” He replied: “No, by Allah, O
Messenger of Allah. We take a sa‘ (measure) of this for two sa‘s, and two sa‘s for
three.” The Messenger of Allah, peace and blessings be upon him, said: “Do not do so.
Sell the mixed dates for dirhams, then buy the fine dates (janīb) with the dirhams.”
2 – Malik: From Zayd ibn Aslam, from ‘Ata’ ibn Yasar, who said: The Messenger of
Allah, peace and blessings be upon him, said: “Dates for dates, equally.” It was said to
him: “Your agent at Khaybar takes a sa‘ for two sa‘s.” The Messenger of Allah, peace
and blessings be upon him, said: “Call him to me.” So they called him, and he said to
him: “Do you take a sa‘ for two sa‘s?” He replied: “O Messenger of Allah, they do not
sell me the fine dates (janīb) for the mixed dates, sa‘ for sa‘.” The Messenger of Allah,
peace and blessings be upon him, said to him: “Sell the mixed dates for dirhams, then
buy the fine dates (janīb) with the dirhams.”
I say: Janīb is a type of date, the finest of their dates; the mixed dates (al-jam‘) are
inferior blends of dates. In Sharh al-Sunnah: This is the opinion of the scholars. He
intended to exchange something subject to riba (usury/interest) for its own kind and take
an excess, which is not allowed, such that if one sells it for another kind, receives what
was bought, and then sells it for more than what he received. Then they differed
regarding ‘īnah (a sale where a man sells a commodity on deferred payment and then
buys it back from the buyer for less in cash or merchandise and on credit). Al-Shafi‘i
said: There is no harm in it; Abu Hanifa said: If he buys it for less than he sold it for, or
for a longer term, it is not allowed.
Sale of legumes before their growth is complete
1 – Malik said regarding the seed of white radish that is eaten, and the seed of carrots,
and the seed of chard, leeks, and khurbuz (melon), and similar things: If a man buys it,
there is no harm in selling it before it is fully grown, because this is not food, and there is
no harm in exchanging one for two of the same kind.
He said: As for the seed of radish from which oil is pressed, it is not permissible to sell it
before it is fully grown, because this is food; do you not see that it contains oil?
As for what I have described to you of carrot seed, chard, and the radish that is eaten,
there is no food in it. If someone says: It is planted, and something edible comes out of
the palm...
2 – Malik said: Anything that is food is not to be sold when bought until it is received, nor
salt, nor any spice if bought by measure or weight; pepper, coriander, caraway, black
cumin, all spices are not to be sold when bought until received, and only equal for equal
is allowed, and not two for one of the same kind, hand to hand, except if the types differ.
3 – Malik said: There is no harm in selling water before it is received. He also said:
There is no harm in exchanging water one for two, hand to hand, and there is no harm
in exchanging food for water on deferred payment.
Sale of fruits and crops
There are three sections
[Al-Mudawwana al-Kubra 3/164]
(Section One: On selling them without their roots) It is not permissible to sell fruits until
their ripeness appears; this applies equally to grapes, dates, all fruits, cucurbits,
vegetables, and all legumes and crops. The sign of ripeness varies: for dates, it is when
they turn red or yellow; for grapes, when they turn black and sweetness appears; for
other fruits and legumes, when they become good for eating; for crops, when they dry
and harden. When ripeness appears in a type, it is permissible to sell all of that type in
the orchards by agreement, and it is permissible to sell what is adjacent from other
orchards, contrary to al-Shafi‘i. It is not permissible to sell a type whose ripeness has
not appeared due to the ripeness of another type, such as an orchard with grapes and
pomegranates; it is not permissible to sell the pomegranates until their ripeness
appears, contrary to the Zahiris. If the fruit is harvested in successive batches, it is
permissible to sell all batches when the first ripens, if they are consecutive, such as
cucurbits and figs, contrary to them. If they are separate, it is not permissible to sell the
second due to the ripeness of the first, by agreement, such as early figs and late figs. It
is only permissible to sell fruits before ripeness appears on condition of cutting, if they
are useful, such as fodder, etc. If the condition is to leave them, it is not permissible; if
silence is kept about leaving or cutting, there are two opinions. If he buys it before
ripeness appears on condition of cutting and then leaves it, the sale is void; if he buys
the land after that, it is permissible to leave the crop.
(Section Two) On selling land with crops and trees, and orchards with fruit. Whoever
sells trees with fruit, if the fruit is pollinated (mabūra), it belongs to the seller, whether
stipulated or silent, and it belongs to the buyer if he stipulates it. If it is not pollinated, it
belongs to the buyer, whether stipulated or not; it is not permissible for it to belong to
the seller. If part is pollinated, the pollinated part belongs to the seller, and the
unpollinated part to the buyer. Pollination in dates is the fertilization, and likewise in all
that is fertilized; pollination in what is not fertilized is the formation of the fruit. Pollination
of crops is their emergence from the ground. Whoever sells land with crops, if the crop
has not appeared, it belongs to the buyer, whether stipulated or not; it is not permissible
for the seller to stipulate it, because it is like a fetus in a slave girl’s womb. If it is small
but has appeared, it belongs to whoever stipulates it; if both are silent, some say it
belongs to the seller, others to the buyer. If the crop is large and ripeness has
appeared, it belongs to the seller, whether stipulated or silent; if the buyer stipulates it, it
is his.
Sale of fruits and crops
(Section Three) On calamities (jawā’iḥ). If someone buys fruit and it is struck by a
calamity, the price is reduced by the amount of the calamity, contrary to the two (other
opinions). The deduction is subject to two conditions: (1) the calamity is not caused by
human action, such as drought, excessive rain, hail, wind, locusts, and the like; there is
disagreement regarding armies and thieves; (2) the calamity affects one third or more of
the fruit; Ashhab said one third of its value. If less than one third is affected, nothing is
deducted from the buyer. If one third or more is affected, the buyer is obliged to pay its
value after deducting what was lost to the calamity.
Here are four branches: (Branch 1) If the calamity is from thirst, all is deducted, whether
it reaches one third or not. (Branch 2) If the calamity is in legumes, all is deducted, and
some say it is like other fruits, only one third or more is deducted. (Branch 3) If crops
are sold after they have dried and hardened, or fruit after full ripeness and eligibility for
cutting, and keeping them has no benefit, then if struck by a calamity, nothing is
deducted. (Branch 4) If the sale includes various types of fruit, such as grapes and figs
in one transaction, and the calamity strikes one type and the rest are safe, each type is
considered separately; if the calamity reaches one third of the type, it is deducted; if
less, it is not. Asbagh said it is considered as a whole: if the calamity is one third of the
total, it is deducted; otherwise, not.
On the sale of fruits before ripeness appears
[Al-Qawanin al-Fiqhiyya 287–289]
Prohibition of selling fruits before ripeness appears
That the Messenger of Allah, peace and blessings be upon him, forbade
Abdullah ibn Umar: That the Messenger of Allah, peace and blessings be upon him,
forbade the sale of fruits until their ripeness appears; he forbade both seller and buyer.
Sale of fruits before ripeness appears
2 – Malik: From Humayd al-Tawil, from Anas ibn Malik, that the Messenger of Allah,
peace and blessings be upon him, forbade the sale of fruits until they show signs of
ripening. They said: “O Messenger of Allah, what is showing signs of ripening?” He said:
“Until they turn red or yellow.” The Messenger of Allah, peace and blessings be upon
him, said: “If Allah withholds the fruit, for what does one of you take his brother’s
wealth?”
3 – Malik: From Abu al-Rijal Muhammad ibn Abd al-Rahman ibn Haritha, from his
mother ‘Amra bint Abd al-Rahman, that the Messenger of Allah, peace and blessings be
upon him, forbade the sale of fruits until they are safe from calamity. 4 – Malik: From
Abu al-Zinad, from Kharija ibn Zayd ibn Thabit, from Zayd ibn Thabit, that he would not
sell his fruits until the Pleiades appeared.
h – Malik: It reached him that Muhammad ibn Sirin used to say: Do not sell grain in its
ear until it whitens. Malik said: The practice among us regarding the sale of watermelon,
cucumber, melon, and carrot is that it is permitted and valid for one to sell it when its
goodness becomes apparent; then, the purchaser is entitled to what grows until its fruit
ceases and perishes, and there is no fixed time for this. This is because its time is well
known among people, yet sometimes the common folk may harvest its fruit before that
time comes. If it is struck by a calamity (jahāh) that destroys a third or more, that is
deducted from what the purchaser bought.
I said: The “azha” of the palm is when it becomes red or yellow; “calamity” (ʿāhah) is a
pest that affects fruit and crops. Al-Shafiʿi holds the same view. In al-Minhāj: It is
permitted to sell fruit after its goodness appears, absolutely, or with the condition of
cutting it, or with the condition of leaving it. Before its goodness appears, selling it
separately from the tree is not permitted except with the condition of cutting, and what is
cut must be beneficial. According to Abu Hanifa, the sale is valid absolutely, but he is
ordered to cut it. Thus, the interpretation of the hadith, according to Muhammad, is that
nothing of the fruits should be sold on the condition that it is left on the palm until it
becomes red or yellow. If it does not become red or yellow, then there is no good in
buying it to be left until it ripens.
[al-Musawwa from the ahadith of al-Muwatta, vol. 2, pp. 16–18]
The Sale of Present for the Bedouin (Bayʿ al-ḥāḍir lil-bādī)
Prohibition of Intercepting Caravan Traders and the Sale of Present for Bedouin
1 – Malik: From Abu al-Zinad, from al-Aʿraj, from Abu Huraira, that the Messenger of
Allah, peace be upon him, said: “Do not intercept the caravans for sale, and let none of
you sell over the sale of another, nor artificially inflate prices (najash), nor let a
townsman sell for a Bedouin, nor tie up camels and sheep (to make them appear full of
milk).”
I said: This is the view of the scholars. In al-Minhāj: Among the prohibited matters that
do not invalidate a sale is the sale of a townsman for a Bedouin, such as when a
stranger arrives with goods needed by all, intending to sell them at the day’s price, and
a local says: “Leave it with me to sell gradually.” And intercepting caravans is to meet a
group bringing goods to town and buy from them before they arrive or know the price;
the buyer has the right of option if he discovers he was cheated. In al-Wiqāya: It is
disliked to intercept goods in a way that harms the townspeople, and for a townsman to
sell for a Bedouin out of greed for a high price in times of scarcity.
[al-Musawwa from the ahadith of al-Muwatta, vol. 2, p. 32]
Sale of Animal for Animal and for Meat
1 – Malik: From Salih ibn Kaysan, from Hasan ibn Muhammad ibn Ali ibn Abi Talib, that
Ali ibn Abi Talib sold his camel named ʿUsayfir for twenty camels, payment deferred.
2 – Sale of Animal for Animal and for Meat
2 – Malik: From Nafiʿ, that Abdullah ibn Umar bought a riding animal for four camels,
guaranteed by him, to be delivered to its owner at al-Rabadha.
3 – Malik: He asked Ibn Shihab about selling two animals for one, deferred. He said:
There is no harm in that.
I said: Al-Shafiʿi, in Sharh al-Sunnah, says: It is permitted to sell one animal for two, in
cash, whether of the same species or different, and this is the view of all the scholars.
Saʿid ibn al-Musayyib held that if both are edible, it is not permitted if bought for
slaughter, but if they are of different species, it is permitted. There is disagreement
about selling animal for animal on deferment. Al-Shafiʿi said: It is permitted, whether of
the same species or different, whether edible or not, whether one for one or one for two.
Abu Hanifa said: It is not permitted.
4 – Malik: From Zayd ibn Aslam, from Saʿid ibn al-Musayyib, that the Messenger of
Allah, peace be upon him, forbade the sale of animal for meat.
h – Malik: From Dawud ibn al-Husayn, that he heard Saʿid ibn al-Musayyib say: Among
the gambling of the people of Jahiliyya was selling meat for one or two sheep.
6 – Malik: From Abu al-Zinad, from Saʿid ibn al-Musayyib, that he used to say: The sale
of animal for meat is forbidden. Abu al-Zinad said: I said to Saʿid ibn al-Musayyib: What
if a man buys a she-camel for ten sheep? Saʿid replied: If he bought them to slaughter,
there is no good in that. Abu al-Zinad said: All the scholars I met forbade selling animal
for meat. Abu al-Zinad said: It was written in the contracts of the officials in the time of
Aban ibn Uthman and Hisham ibn Ismaʿil to prohibit that.
I said: Al-Shafiʿi, in al-Minhāj, says: It is forbidden to sell meat for animal, whether of the
same species or not, whether edible or not. In Sharh al-Sunnah, the scholars differed
regarding the sale of meat for animal; a group of Companions and Followers forbade it,
and so did al-Shafiʿi. The hadith of Ibn al-Musayyib, though mursal, is strengthened by
the practice of the Companions. Al-Shafiʿi considered the mursal of Ibn al-Musayyib
sound, while others permitted it, as the hadith is not established and there is an earlier
view with disagreement. Also, animal is not subject to riba, as it is permitted to sell one
animal for two, so selling meat for animal is selling a riba-commodity for what is not
subject to riba, so it should be permitted by analogy—except if the hadith is established,
we follow it and leave analogy. In al-Wiqāya: It is permitted to sell meat for animal.
Muhammad said in al-Muwatta, and this is our practice: Whoever sells mutton for a live
sheep, not knowing whether the meat is more or the sheep is more, the sale is invalid
and disliked, and should not be done. This is like mazabana (barter of dates on the
trees; prohibited) and mahāqala (barter of standing grain for harvested grain;
prohibited), and likewise the sale of olives for oil and sesame for sesame oil. As
explained in Sharh al-Wiqāya, if an animal is sold for meat of its own kind, the sale is
not permitted unless the meat is more than the meat on the animal, so the excess is in
exchange for the risk. I say: The best interpretation of the hadith is when the butcher is
asked, “How much meat will this sheep yield?” He replies, “Twenty pounds.” The seller
says: “Take this sheep for twenty pounds of meat. If it yields more, it is yours; if less,
you owe it.” This is a kind of gambling, and the hadith returns to analogy.
[al-Musawwa from the ahadith of al-Muwatta, vol. 2, pp. 10–13]
Sale of Wine is Forbidden
Prohibition of Selling Wine
1 – Malik: From Zayd ibn Aslam, from Ibn Wa’la al-Misri, that he asked Abdullah ibn
Abbas about what is pressed from grapes. Ibn Abbas said: A man gifted the Messenger
of Allah, peace be upon him, a skin of wine. The Messenger of Allah said to him: “Do
you not know that Allah has forbidden it?” He replied: “No.” Someone whispered to him
beside the Prophet, so the Messenger of Allah asked: “What did you whisper to him?”
He replied: “I told him to sell it.” The Messenger of Allah said: “The one who forbade
drinking it, forbade selling it.” So the man opened the skins and let what was in them go.
2 – Malik: From Nafiʿ, from Abdullah ibn Umar, that a man from Iraq said to him: “O Abu
Abd al-Rahman, we buy dates and grapes and press them into wine to sell.” Abdullah
ibn Umar replied: “I call Allah and His angels and all who hear from jinn and men to
witness that I command you not to sell it, nor buy it, nor press it, nor serve it, for it is filth
from the work of Satan.”
[al-Musawwa from the ahadith of al-Muwatta, vol. 2, p. 24]
Sale with Option (Bayʿ al-Khiyār)
1 – Sahnun said to Ibn al-Qasim: Describe to me the sale with option according to
Malik? He said: Malik said: Sale with option is when a man says, “I buy from you this
garment, or this house, or this slave girl, or this animal, and I have the option over it for
this day, or this week, or this month.” 2 – Imam Malik said: As for a garment, there is no
objection to stipulating an option (khiyar) for a day or two, or something similar; but if it
is for longer than that, it is not good. For a slave girl, the option period may be a little
longer—five days or a week, or something similar; there is no objection to an option up
to that, so that her quality, condition, and work may be examined. For a riding animal,
one may ride it for a day or something similar.
3 – Ibn al-Qasim said: I asked Malik, “What if the condition is that the buyer may ride it
for the distance of a courier or something similar, to examine its pace?” He said: There
is no objection to that, as long as it is not for an extended period. As for real estate, the
option period may be a little longer—a month or something similar. Regarding various
items, there are different cases of this kind: people buy them with an option so they can
test them or seek advice about them. If what is bought is something people need to
choose carefully, as I have described, then there is no objection to an option for that;
but if the option period is extended, then it is not good, because it is gharar
(uncertainty/speculation)—you do not know what will happen to the item by that time,
nor does the owner know how it will return to him.
Imam Malik said: Payment in such cases, whether the period is long or short, is not
permissible with a condition. If the payment is in silver coins, there is no objection to
payment between them if it is a sale with option (khiyar). For non-cash payment, if the
option is for the seller or buyer, it is permitted.
Al-Mudawwana al-Kubra 3/223
Sale with Option (Bay‘ al-Khiyar)
The stipulated option (khiyar) is the option to reflect and choose, and the well-known
ruling concerns five issues: The first issue is its ruling—it is permitted for either the
seller or the buyer, or both, to stipulate it. Whoever stipulates it may finalize the sale or
rescind it before the option period ends or before an act indicating consent is shown, if
both stipulated it together. If both agree to finalize or rescind, what they agreed upon
occurs; if they disagree, the word of the one who wants to rescind prevails. It is also
permitted to sell with an option for someone else, or with their consent or consultation.
Rescinding via option does not require the presence of the other party nor a judge’s
ruling; Abu Hanifa required the presence of the other party.
(The second issue) concerns its duration: it begins at the contract and its end varies
according to the type of goods. For houses and land, it is a month or similar, or less; Ibn
al-Majshun said a month or two months. For slaves, it is a week or less; Ibn Wahb
narrated a month. For animals and garments, it is three days or less. For fruit, it is an
hour. Al-Shafi‘i and Abu Hanifa said the option period is three days, not to be increased;
Ibn Hanbal permitted any period stipulated. If a contract is made with a specified option
period, as mentioned, it is valid; if the period exceeds the appropriate duration, the
contract is invalid. If they do not specify the period, the contract is valid and the option
period is as described. If they stipulate an unknown period, such as “until Zayd arrives”
and his arrival is uncertain, the contract is invalid.
(The third issue) concerns what counts as acceptance of the sale by the actions of the
contracting parties, and these are three types: (First) what is considered acceptance by
agreement, such as explicitly stating it, or emancipating a slave, writing his
manumission, marrying a slave girl, enjoying her, or benefiting from her—these, from
the buyer, indicate finalization; from the seller, they indicate rescission. (Second) what is
not considered acceptance, such as riding the animal for testing or wearing the
garment—doing these is as if not done. (Third) what is disputed, such as pledging the
sold item, renting it out, offering it for sale, or similar ambiguous acts; according to Abu
al-Qasim, the option is terminated, contrary to Ashhab. If the one who stipulated the
option dies during the period, the option passes to his heirs, contrary to Abu Hanifa and
Ibn Hanbal.
(The issue) The sold item during the option period remains the property of the seller; if it
is lost, the loss is his, unless the buyer has taken possession and it is something
customarily possessed, and no evidence is established for its loss. If a defect occurs
during the option period, it is the seller’s responsibility. If a slave girl gives birth during
the option period, her child belongs to the buyer according to Ibn al-Qasim; others say it
belongs to the seller, like the yield, which is his. The buyer may not stipulate benefiting
from the item during the option period except to the extent needed for testing; if the sale
is not finalized, his benefit is invalid and the seller receives nothing. As for stipulating
payment, if the sale is not finalized, it is considered a loan; if it is finalized, it is the price.
If the contract is made on that basis, the sale is rescinded whether the condition is
upheld or dropped. Payment without stipulation is permitted.
The fifth issue: The option of the session (khiyar al-majlis) is invalid according to Malik,
the seven jurists of Medina, and Abu Hanifa—the sale is finalized by verbal agreement
even if the parties have not separated from the session. Al-Shafi‘i, Ibn Hanbal, Sufyan
al-Thawri, and Ishaq said: when the contract is completed, both parties have the option
as long as they have not separated from the session, based on authentic hadith.
Al-Qawanin al-Fiqhiyya, pp. 299–300
Sale with Option and Consultation
1 – Imam Malik said: If a man buys an item on condition that he consults so-and-so, the
sale is valid.
2 – Imam Malik said: If the buyer chooses to purchase and the seller says, “You cannot
choose until you consult so-and-so,” the seller’s statement is disregarded and the item
belongs to the buyer.
Imam Malik said: Whoever buys on condition of so-and-so’s approval, then the buyer
cannot finalize or rescind until that person approves. Whoever buys on condition that
so-and-so has the option, it is the same. Ashhab said: It is valid if one buys an item on
condition that a stranger or a relative has the option for several days.
Al-Mudawwana al-Kubra 3/228
Sale with Option after the Period Expires
1 – Sahnun asked Ibn al-Qasim: What is Malik’s view regarding a man who sells an
item with a three-day option for the buyer, and the buyer takes possession but does not
return it until the option period ends, then brings it back to return it after the period has
ended—can he return it or not?
Ibn al-Qasim said: If he brings it after sunset on the last day of the option or soon after
the period ends, I see that he may return it; but if it is much later, I do not see that he
may return it.
Sale of a House with Stipulation of Residence for a Year
2 – Ibn al-Qasim said: I said to Malik: What if a man buys a garment or item with a one-,
two-, or three-day option, and the sun sets on the last day of the period and he has not
returned the garment by the end of the period—the sale is binding.
Al-Mudawwana al-Kubra 3/240
Sale of a House with Stipulation of Residence for a Year
1 – Sahnun asked Ibn al-Qasim: What about a man buying a house on condition that
the seller may reside in it for a year—is this permitted according to Malik? Ibn al-Qasim
said: Malik said it is permitted if the seller stipulates residence for months or a year; that
is not too long. Malik disliked what is for a long period.
Malik said: If he stipulates residence for his lifetime, it is not good.
2 – Malik was asked about a man who dies owing a debt, admits his assets, and owns a
house in which his wife resides.
Ibn al-Qasim said: I see no objection to selling the house and stipulating that the
creditors allow the wife to reside during her waiting period (iddah); this supports your
question.
Sahnun asked Ibn al-Qasim: What if I sell my riding animal and stipulate that I may ride
it for a month—is this permitted according to Malik? Ibn al-Qasim said: Malik said it is
not good; only a day or two, or something similar, is permitted according to Malik, but
not a month or a long period.
Al-Mudawwana al-Kubra 3/262
Sale by Murabaha, Bargaining, and Auction
As for murabaha, it is when the owner of the item informs the buyer of the price he paid
for it and then takes a profit, either in total—such as saying, “I bought it for ten and you
profit me a dinar or two”—or in detail, such as saying, “You profit me a dirham for every
dinar,” or something similar. And here... Six Branches:
First Branch: If the owner of the goods has incurred additional costs beyond the
purchase price, then if these additions have a tangible, existing form—such as tailoring,
dyeing, or plastering—the owner counts them as part of the price and allocates a share
of the profit to them. If the addition does not have a tangible form and he performed the
work himself, like folding or cutting, he does not count it in the price nor allocate any
share of the profit for it. However, if he hired someone to do it, he counts it in the price
but does not allocate a share of the profit for it, such as hiring transport or tying goods.
All of this is permissible if he discloses it to the buyer.
Second Branch: Lying about the purchase price is not permitted. If the seller lies, and
the buyer later discovers the actual higher price, the buyer has the option either to keep
the item at the full price or to return it, unless the seller chooses to deduct the excess
and its share of the profit, in which case the buyer must complete the purchase. Abu
Hanifa said: the buyer is not obliged.
Third Branch: Cheating is not permitted in murabaha (profit-based sale) or any other
sale. This includes concealing from the buyer anything about the goods that he would
dislike or that would reduce his interest in them, even if it is not tangible—such as how
long the goods remained with the seller, a change in market conditions, or including
them in an inventory of items to which they do not belong. If the seller does this, the
buyer has the option to keep the item at the full price or to return it, just as in the case of
lying, except that the buyer is not obliged to complete the purchase if the seller deducts
part of the price for what he concealed, unlike the case of lying.
Fourth Branch: The ruling on defects in this type of sale is the same as in other sales.
Lying, cheating, and deceit regarding defects may occur together or separately, and the
buyer is entitled to whichever ruling is most favorable to him.
Fifth Branch: Whoever buys goods on deferred payment must not sell them by
murabaha without disclosure. If he does so, the sale is void. If the buyer agrees to the
price at a deferred term, it is not permitted, because it constitutes a loan for the seller.
Sixth Branch: If someone buys goods with other goods (barter), Ibn al-Qasim said: He
may sell them for what he bought them for by murabaha. Ashhab said: He may not sell
them by murabaha.
As for bargaining (musawama), it is when the buyer negotiates with the seller over the
price until they agree, without disclosing how much the seller paid for it. This type of
sale is safer from corruption than murabaha and is preferred by scholars. Cheating and
deceit regarding defects are forbidden in it, and it is not subject to claims of unfair profit
according to the well-known opinion.
As for auctioning (muzayada), it is when the goods are announced and people bid up
the price until it settles with the highest bidder, who then takes it. This is not considered
bargaining over someone else’s deal, because there has been no commitment or
closeness. If two people offer the same price for an item, they share it; it is also said
that it goes to the first. Najsh (price-boosting/bid-rigging) is forbidden in auctions, which
is when someone bids up the price without intending to buy, only to inflate the price for
the buyer or benefit the seller. Cheating and deceit regarding defects are also forbidden
in it.
As for trust sale (istirsal), it is when the buyer says to the seller: “Sell to me at the
market price,” or the seller sells to people in general. Cheating and deceit regarding
defects are also forbidden in it.
A branch: Among forms of cheating is to make an item appear fresh and newly arrived
when it is old, or to include it with other inventory to make it seem as if it belongs.
It is forbidden.
[Al-Qawanin al-Fiqhiyyah, 289–290]
Sale of Mazabana and Mahāqala
The sale of mazabana and mahāqala is forbidden.
1.
Malik: From Nafi‘, from Abdullah ibn Umar, that the Messenger of Allah (peace
be upon him) forbade mazabana; mazabana is the sale of dates for dates by
measure, and the sale of grapes for raisins by measure.
2.
Malik: From Dawud ibn al-Husayn, from Abu Sufyan, the freedman of Ibn Abi
Ahmad, from Abu Sa‘id al-Khudri, that the Messenger of Allah (peace be upon
him) forbade mazabana and mahāqala; mazabana is buying dates for dates
while they are on the palm trees, and mahāqala is renting out land for wheat.
Sale of Mazabana and Mahāqala
3. Malik: From Ibn Shihab, from Sa‘id ibn al-Musayyib, that the Messenger of Allah
(peace be upon him) forbade mazabana and mahāqala; mazabana is buying fruit
for dates, and mahāqala is buying crops for wheat. Ibn Shihab said: I asked Sa‘id
ibn al-Musayyib about renting land for gold and silver, and he said: There is
nothing wrong with that.
Malik said: The Messenger of Allah forbade mazabana, and the explanation of
mazabana is that anything sold in uncertain measure, weight, or number for something
specified by measure, weight, or number is forbidden. For example, a man has
preserved food—wheat, dates, and similar foods—whose measure is unknown, or he
has goods such as wood, pits, fodder, safflower, cotton, flax, silk, or similar items whose
measure, weight, or number is unknown. Then someone says to the owner: “Measure
your goods, or have someone measure them, or weigh what is weighed, or count what
is counted; whatever is less than a specified amount, I will cover the deficit until I fulfill
that specified amount, and whatever exceeds that amount is mine. I guarantee the
deficit for you, and what exceeds is for me.” This is not a sale, but gambling, uncertainty
(gharar), and risk—because he did not buy anything from him for something he gave,
but guaranteed the specified measure, weight, or number, on condition that what
exceeds belongs to him. If the goods fall short of the specified amount, he takes from
the owner the deficit without a price paid; if the goods exceed the specified amount, he
takes the surplus from the owner without price or a gift freely given. This resembles
gambling, and anything similar falls under this ruling.
I said in the Sharh al-Sunnah: The practice among the majority of scholars is according
to this.
Sale of Dung and Hides of Dead Animals
Mazabana is the sale of fruit on the tree for its kind on the ground; mahāqala is the sale
of crops after the grain has hardened for its kind, cleaned. The reason for the prohibition
is that equality between them is a condition, and what is on the tree cannot be
measured by volume or weight—its estimation is only by guesswork and conjecture,
which is subject to variation. If, however, one sells for another type of fruit, whether on
the ground or on the tree, it is permitted, because similarity is not a condition between
them. Immediate exchange in the session is a condition, and taking possession of what
is on the ground is by removal, and what is on the tree is by relinquishment.
I say: The meaning is that the reason for prohibition is suspicion of riba (usury), and
Malik’s statement that the reason is gambling is also correct; both reasons are valid. As
for the statement “mahāqala is renting land for wheat,” the hadith differs on the meaning
of mahāqala, but most hold that mahāqala in cultivation is like mazabana in palm trees.
Abu Sa‘id seems to have meant renting in this sense, leniently. Malik said: Renting land
for food is not permitted. Others permitted it for a specified amount of food, just as it is
permitted for dinars and dirhams, but not for what grows from that land after renting.
[Al-Muwatta, vol. 2, pp. 13–15]
Sale of Dung and Hides of Dead Animals
1.
Sahnun asked Ibn al-Qasim: What do you say about the sale of dung—does
Malik permit it? Ibn al-Qasim said: I have not heard anything from Malik on this,
but I see no objection to its sale.
2.
Sahnun asked: Have you heard Malik say anything about the sale of human
excrement—like what is sold in Basra? Ibn al-Qasim said: I heard Malik dislikes
it.
3.
Ashhab said regarding purchased dung: The buyer is more excused than the
seller in its purchase. As for the sale of excrement, there is no good in it. Ibn al-
Qasim said: Malik was asked about a man in whose house a dead animal died,
and he hired someone to dispose of it for its skin. He disliked that, and said: He
saw no harm in hiring someone to dispose of it for dinars or dirhams, but he
disliked it only because he did not approve of the sale of the skin of a dead
animal, even if it was tanned.
He said: I asked Malik about the sale of ‘adhra (excrement) used to fertilize crops. He
said: I do not like it and he disliked it. He said: The ‘adhra which he disliked was human
excrement.
Sahnun said: What is Malik’s opinion regarding animal dung? Ibn al-Qasim said: I did
not hear anything from Malik about it except that, according to Malik, it is impure. He
disliked ‘adhra because it is impure, so likewise dung is also impure, though I personally
see no harm in it.
Sahnun said to Ibn al-Qasim: What about the droppings of sheep, camels, and the urine
of cattle? He said: There is no harm in this according to Malik, and I have seen Malik
buy camel dung for himself.
He said: Malik was asked about the bones of a dead animal—do you think it is
permissible to use them as fuel under cooking pots? He disliked that and said: There is
no good in it. Sahnun said: What about using them for purposes other than food? Ibn al-
Qasim said: We only asked him about food. He said: I do not like heating water with
them for dough or ablution, but if lime or bricks are cooked with them, I see no harm in
it.
Sahnun said: Did Malik dislike benefiting from the bones of a dead animal? Malik said: I
do not approve of buying or selling the bones of a dead animal, nor the tusks of
elephants, nor trading in them, nor combing with combs made from them, nor anointing
with ointment containers made from them. He said: "How can one put ointment in a
dead animal or comb his beard with its bones when they are wet?" He disliked cooking
with them.
Al-Mudawwana al-Kubra 3/218
Sales and Loans
Prohibition of Sale and Loan
1 - Malik: It has reached him that the Messenger of Allah, peace and blessings be upon
him, forbade sale and loan (bay‘ wa salaf). 2 - Malik said: Its explanation is that a man
says to another: I will take your merchandise for such and such, on condition that you
lend me such and such. If they contract the sale on this basis, it is not permissible. If the
one who stipulated the loan abandons his condition, then the sale is valid. I said: The
scholars, in explaining the Sunnah, say: He says, “I sell you this garment for ten
dirhams on condition that you lend me ten dirhams,” and what is meant by ‘salaf’ here is
a loan. This is invalid, because the ten dirhams and the benefit of the loan become the
price of the garment, so if the condition is voided, part of the price drops out, and what
remains of the sold item is exchanged for an unknown equivalent.
Al-Musawwa from the hadith of Al-Muwatta 2/25-26
Selling goods in one town and receiving payment in another
1 - Sahnun asked Ibn al-Qasim: What do you think if I sold food on deferred payment for
dirhams or dinars while we are in Medina, and I stipulated, or the buyer stipulated, that
the dirhams or dinars would be paid when due in Fustat? Ibn al-Qasim said: Malik said:
If a term is set and the town is specified, there is no harm in it.
Sale of goods in one town and receiving payment in another.
2 - Ibn al-Qasim said: If the town is specified but no term is set, there is no good in it; if
the term is set but the town is not specified, that is permissible, and wherever he meets
him when the term falls due, he may take dirhams or dinars in the town where they
contracted or elsewhere.
3 - Sahnun asked Ibn al-Qasim: What if both term and town are specified, but when the
term falls due, he meets him in a town other than the one stipulated for payment? Ibn al-
Qasim said: Malik said: When the term falls due, wherever he meets him, he may take
payment, and even if the town was specified, if he meets him in another town he may
collect from him and does not have to wait until he returns to that town, because if he
wished never to return to that town, he would keep the creditor from his right forever,
and that is not acceptable.
4 - Sahnun asked Ibn al-Qasim: What if he sold his goods for an item of merchandise—
jewels, pearls, garments, food, goods, slaves, animals, or other items—and stipulated
that he would pay him in a particular town at a certain term? Ibn al-Qasim said: As for
goods, garments, food, slaves, and animals, I heard Malik say that he pays him in the
town stipulated when the term falls due. He said: I did not hear anything from him about
pearls and jewels, but I think that he should only deliver them in the town where
payment was stipulated, because these are merchandise and not like gold and silver,
since gold and silver are currency in all towns.
Sahnun asked Ibn al-Qasim: What if, when the term falls due, the one owing these
things says: I will not go to that town?
Ibn al-Qasim said: Malik said: He must pay only in that place, or appoint an agent, or go
himself and pay his companion; he must do so.
Al-Mudawwana al-Kubra 3/263-264
Sale of residence
1 - Sahnun asked Ibn al-Qasim: What do you think if a man sold the right of residence in
a house where he lived for years? Is this considered a sale according to Malik, or is it
invalid, or is it rent and permissible? Ibn al-Qasim said: Rather, it is permissible and is
rent, because Malik said to me: I do not look at the wording, I look at the action; if the
action is sound, the wording does not harm it, and if the action is unsound, the wording
does not benefit it.
2 - Sahnun asked Ibn al-Qasim: What may I buy my residence and the service of my
slave whom I have made serve me with? Ibn al-Qasim said: With whatever you wish—
dinars, dirhams, food, and all items.
3 - Sahnun asked Ibn al-Qasim: May I buy the residence I used with the residence of
another house I own, or with its service, or with the service of another slave I own? Is
that permissible or not? Ibn al-Qasim said: I see no harm in it.
4 - Sahnun asked: With what may I buy my grant according to Malik? Ibn al-Qasim said:
With dinars, dirhams, and all goods, whether cash or deferred; and with food, whether
cash or deferred, because Malik said: There is no harm in buying a milking sheep for
food on deferred payment.
Al-Mudawwana al-Kubra 3/262
Sale of salam (forward sale)
272
Sale of salam Chapter One: On Its Conditions
Salam (forward sale) is only permissible with certain conditions. Some of these
conditions are shared by both the capital (price) and the subject of salam (muslam fih),
some pertain exclusively to the capital, and some exclusively to the muslam fih.
As for the shared conditions, they are three:
First: Each of the two (the price and the subject of salam) must be something that is
owned and whose sale is valid, to avoid (the transaction of) wine, swine, and other
prohibited things.
Second: They must be of different kinds, such that deferment (nesi’a) is permissible
between them. Thus, it is not allowed to deliver gold for silver or vice versa, for that is
riba (usury). Likewise, the delivery of one kind of foodstuff for another of the same kind
is absolutely prohibited, as it constitutes riba. It is permissible to deliver gold or silver for
animals, goods, or foodstuffs; and it is permissible to deliver goods for other goods, and
animals for other animals, provided that the intended purposes and benefits differ. It is
not permissible if the purposes and benefits are the same, because it amounts to a loan
that brings a benefit. Abu Hanifa prohibited salam in animals, and the Zahiris prohibited
salam in animals and goods, and Abu Hanifa also prohibited it in eggs, meat, heads,
and trotters. Al-Shafi‘i prohibited it in houses and gems.
Third: Each must be known with respect to kind, description, and amount—by weight for
what is weighed, by measure for what is measured, by length for what is measured by
length, by count for what is counted, or by description for what is not weighed,
measured, or counted. Al-Shafi‘i permitted unspecified (jazaf) sales, contrary to Abu
Hanifa, and there is disagreement within the Maliki school regarding this.
As for the conditions exclusive to the capital (price): it must be in cash. It is permissible
to delay its payment if not stipulated (as a condition), and it is permissible if stipulated
for three days or so. Al-Shafi‘i and Abu Hanifa required both parties to take possession
in the same session.
As for the conditions exclusive to the muslam fih (subject of salam), they are three:
First: It must be deferred to a known term, the minimum of which is the period during
which markets change, such as fifteen days or so, or if the delivery is in another town.
There is no maximum unless it reaches the level of gharar (prohibitive uncertainty) due
to its length. Al-Shafi‘i permitted it to be immediate. It is permissible for the term to be
until harvest or picking, and similar cases, contrary to their view.
Second: It must be unspecified in the liability (dhimma), so it is not permissible in a
specified item, such as the crop of a particular village. For this reason, it is not permitted
in real estate by consensus, due to its specificity.
Third: Its kind must be available at the due date, whether it was available at the time of
contract or not, by consensus. Abu Hanifa required it to be available at both the time of
contract and at the due date.
Chapter Two: On the Delivery of the Muslam Fih
This chapter contains six issues:
First Issue: Substitution. Whoever contracts salam in foodstuff may not take anything
other than foodstuff, nor may he take foodstuff of a different kind, whether before or
after the due date, because this is a sale of food before taking possession. If the salam
was in something other than food, it is permissible to take something else if he takes
possession of the other kind in place of it. If possession is delayed beyond the contract,
it is not permissible, as it would then be debt for debt. It is permissible to take foodstuff
of a different variety within the same kind, such as white raisins for black, unless one is
better or inferior to the other; in that case, it is permissible after the due date, as a
matter of leniency and mutual concession, but not before, because that would be
considered a discount for prompt payment. In the case of the superior item, it is
considered compensation for the guarantee.
Second Issue: If, after the due date, the seller gives extra dirhams in return for an
increase in the muslam fih, it is permissible if the dirhams are paid immediately, as they
are two separate transactions. Sahnun prohibited this, considering it a case of debt for
debt.
Third Issue: If the muslam fih is delivered before its due date, it is permissible to accept
it, but not obligatory. Later scholars made acceptance obligatory if the advance is for a
day or two. As for non-salam transactions, such as sales or loans, acceptance is
obligatory by consensus if delivered before its due date.
Fourth Issue: It is preferable to stipulate the place of delivery, and Abu Hanifa made this
obligatory. If no place is stipulated in the contract, then the place of the contract is the
place of delivery; if specified, it is binding. It is not permissible to take delivery in a place
other than the specified one, and the cost of transporting between the two places is
borne, as they are like two separate terms.
Fifth Issue: If someone contracts salam for an item, but when the due date arrives,
delivery is impossible due to its absence or its season having passed, such as fresh
dates, he has the option to take back the price or wait until the following year. Sahnun
prohibited taking back the price, and Ashhab prohibited both options, saying the
contract should be annulled, as this would be debt for debt. It is not permissible to take
part of the item and annul the rest, as that would be a sale and a loan combined.
Sixth Issue: It is permissible to sell the item of salam before taking possession from the
original seller, at the same price or less, but not for more, because a higher price is
suspected of being a loan that brings benefit. It is permissible to sell it to someone other
than the original seller for the same, less, or more, hand to hand, but not deferred, due
to gharar, as it would be a transfer from one liability to another. If the original sale was
for cash, it would be permissible.
[Al-Qawanin Al-Fiqhiyyah, pp. 294-296]
Sale of Ghee and Honey in Their Containers, Then Weighed
1.
Sahnun said to Ibn al-Qasim: What if I buy ghee, oil, or honey in containers, each
pound for such-and-such, on the condition that I weigh the containers with the
honey, ghee, or oil, then the weight of the containers is subtracted? Ibn al-Qasim
said: Malik said there is no harm in this. I asked Malik about a man who buys
ghee, honey, or oil in containers by measure, and they want to weigh that ghee
with its containers, or the honey or oil, then subtract the weight of the containers.
2.
Malik said: If the weight of the container is known and does not vary, and they
know how many pounds it is when weighed, then there is no harm in weighing it,
determining how much is in the container by weight, and subtracting the weight
of the containers according to what they contained. The sale is concluded for
what remains after the weight of the containers is subtracted. If the weight and
measure are consistent, there is no harm in it.
3.
Sahnun said: What if they weighed the ghee and left the containers with the
seller, then returned to him, and the buyer said, “These are not the containers in
 which the ghee was,” while the seller said, “They are the containers in which the
ghee was”? Ibn al-Qasim said: If they both agree on the ghee and it has not
perished, but differ over the containers used to weigh the ghee, and if the ghee
has perished and they differ over the containers, the statement of the one in
possession of the containers is accepted, with his oath, because he is trusted. If
the buyer had taken the ghee and left the containers with the seller to weigh
them, he has entrusted him with them, so his word is accepted with his oath. If
the seller had delivered the containers to the buyer with their contents to be
weighed, and then the buyer claimed he had exchanged them, he is making a
claim, so the buyer’s statement is accepted with his oath, as he has been
entrusted.
[Al-Mudawwana al-Kubra, 3/264]
Sale and Purchase at the Time of the Friday Call to Prayer
1.
Malik said: When the imam sits on the pulpit on Friday and the mu’adhdhins give
the call, at that moment buying and selling is disliked. He said: If a man buys or
sells at that time, the sale is valid.
2.
Ibn al-Qasim said: Malik disliked that women, slaves, children, and those upon
whom Friday prayer is not obligatory, from among the Muslims, buy and sell at
that time.
3.
Malik said: The imam should not prevent the people of the markets from buying
and selling on Friday.
4.
Malik said: When the mu’adhdhin calls the adhan and the imam sits on the pulpit,
people are prevented from buying and selling—men, slaves, and women.
Malik said: I have heard that some of the Companions of the Messenger of Allah, peace
be upon him, disliked that a man should abandon work on Friday as the Jews and
Christians abandoned work on Saturday and Sunday.
Sale and Condition
6. Ibn Wahb narrated from Ibn Abi Dhi’b that Umar ibn Abd al-Aziz used to prevent
people from buying and selling when the call to prayer was made on Friday.
Sale and Condition
[Al-Mudawwana al-Kubra, 1/143-144]
Prohibition of Sale with a Condition 1 – Malik: From Hisham ibn ‘Urwah, from his father,
from ‘A’isha, that the Messenger of Allah, peace and blessings be upon him, said: “Now
then, what is the matter with men who stipulate conditions that are not in the Book of
Allah? Whatever condition is not in the Book of Allah is void, even if it were a hundred
conditions. The judgment of Allah is true, and the condition of Allah is more binding.
Verily, the wala’ (right of inheritance/loyalty) is for the one who emancipates.” (abridged)
2 – Malik: From Ibn Shihab, that ‘Ubayd Allah ibn ‘Abd Allah ibn ‘Utbah ibn Mas‘ud
informed him that ‘Abd Allah ibn Mas‘ud bought a slave-girl from his wife Zaynab al-
Thaqafiyyah, and she stipulated to him: “If you sell her, then she is to return to me for
the price for which you sell her.” So Ibn Mas‘ud asked ‘Umar ibn al-Khattab about that,
and ‘Umar ibn al-Khattab said: “Do not go near her while there is a condition for anyone
(else) in her.”
I say: This is the view of the scholars. In al-Wiqayah, the sale is valid with a condition
implied by the contract, such as the condition of ownership for the buyer, or a condition
not implied by the contract but with no benefit to either party, such as a condition to sell
the sold animal. This is unlike a condition not implied by the contract and which benefits
one of the contracting parties or the sold item, which is not allowed. In al-Minhaj: The
Messenger of Allah, peace and blessings be upon him, prohibited a sale with a
condition, but exceptions are made in cases such as a sale with the option (khiyar),
exemption from defect, deferment, pledge, or guarantor. If the condition is one implied
by the contract, or one with no interest, or a condition of description intended, it is valid.
(Al-Mahalli said:) The condition is void in the second case. [Al-Musawwa from the
hadiths of al-Muwatta, vol. 2, pp. 27–28] See: Purchase with a condition
277 Sales and Their Conditions Sales and Their Conditions
It is stipulated in every contract that it be by mutual consent of the contracting parties
and that it not be a contract upon something void.
1 – Allah the Most High said: “O you who believe! Do not consume one another’s wealth
unjustly, except that it be trade by mutual consent among you. And do not kill
yourselves. Verily, Allah is to you Most Merciful.” (Surat al-Nisa’, verse 29)
I say: Allah the Exalted has forbidden that any of us consume the wealth of another
unjustly, and this includes what is not by contract, such as usurpation or theft, or what is
by a forbidden contract, such as gambling or riba (usury), or a contract over something
with no benefit, such as the sale of insects, or a contract over something that cannot be
delivered, such as the sale of the lost or runaway slave, or what is not owned by the
seller.
It is stipulated in trade that it be by mutual consent. The reality of consent is known only
to Allah, but what is meant here is its indication, such as offer and acceptance, and
such as mutual exchange (mu‘ata) according to those who hold it valid.
Sale
And upon this are the scholars. In al-Minhaj: The condition for a sale is offer and
acceptance, and it is established by indication. Al-Mahalli said: Not by mutual exchange
(mu‘ata); it is said it is valid in the insignificant, such as a loaf of bread or a bundle of
greens, and it is said: in everything that is customarily considered a sale, contrary to
others such as livestock and real estate—and this was chosen by al-Nawawi in al-
Rawdah. In al-Minhaj, among the conditions of sale is benefit, so the sale of insects and
every sale without benefit is invalid, as is the sale of wheat grains for wheat. Among its
conditions is the ability to deliver, so the sale of the lost, runaway, or usurped is invalid.
Among its conditions is ownership by the contracting party, so the sale by a non-owner
is void. In the old opinion, it is suspended. In al-Wiqayah, it is established by offer and
acceptance in the past tense, and by mutual exchange for both valuable and
insignificant items, and this is the sound view. In al-‘Alamkiriyyah: Among the conditions
for the sale of something for its like hand to hand,
278 the item sold must be present and owned in itself, and it must be owned by the
seller for himself, and it must be property that is valued in the Shariah, able to be
delivered at present or soon. The sale of what has no benefit and its purchase is invalid,
such as selling a dirham for a dirham of equal weight and description.
[Al-Musawwa from al-Muwatta, vol. 3, pp. 2–4]
Sale of Like for Like Hand to Hand
It is forbidden to sell foodstuff for its like, or currency for its like, except hand to hand,
equal for equal. If the types differ, and it is food for food, or currency for currency, then
exchange is required, not equality. If it is food for currency, exchange is not required.
1 – Malik: From Ibn Shihab, from Malik ibn Aws ibn al-Hadthan al-Nasri, that he sought
to exchange one hundred dinars. Talhah ibn ‘Ubayd Allah called him, and they
bargained until he exchanged with him, and he took the gold and turned it in his hands.
Then he said: “Wait until my treasurer comes from the plain.” And ‘Umar ibn al-Khattab
was listening. ‘Umar said: “By Allah, do not leave him until you take from him.” Then he
said: The Messenger of Allah, peace and blessings be upon him, said: “Gold for silver is
riba except hand to hand; wheat for wheat is riba except hand to hand; dates for dates
is riba except hand to hand; barley for barley is riba except hand to hand.”
His saying “hand to hand” means take and give, i.e., direct exchange. His saying “we
bargained” means they negotiated the sale and purchase.
2 – Malik: From Nafi‘, from Abu Sa‘id al-Khudri, that the Messenger of Allah, peace and
blessings be upon him, said: “Do not sell gold for gold except equal for equal, and do
not give some advantage over others, and do not sell silver for silver except equal, and
do not give some advantage over others, and do not sell some of it deferred for
immediate.” His saying “do not give advantage” means do not increase, and
“advantage” (shaf) is among the contraries, meaning increase or decrease. “Immediate”
(najiz) means present; it is said “he fulfilled the promise” if he delivered it.
279 Sale of Like for Like Hand to Hand
3 – Malik: From Musa ibn Abi Tamim, from Abu al-Habbab Sa‘id ibn Yasar, from Abu
Hurayrah, that the Messenger of Allah, peace and blessings be upon him, said: “The
dinar for the dinar, the dirham for the dirham—there is no excess between them.”
4 – Malik: From Zayd ibn Aslam, from ‘Ata’ ibn Yasar, that Mu‘awiya ibn Abi Sufyan sold
a vessel of gold or silver for more than its weight. Abu al-Darda’ said: “I heard the
Messenger of Allah, peace and blessings be upon him, forbidding such except equal for
equal.” Mu‘awiya said: “I do not see any harm in this.” Abu al-Darda’ said: “Who will
excuse me from Mu‘awiya? I inform him from the Messenger of Allah, peace and
blessings be upon him, and he tells me his opinion! I will not reside in a land where you
are.” Then Abu al-Darda’ went to ‘Umar ibn al-Khattab and mentioned that to him. ‘Umar
wrote to Mu‘awiya ibn Abi Sufyan: “Do not sell such except equal for equal, weight for
weight.”
His saying “who will excuse me” means who will support me; “excuser” (al-‘adhir)
means helper.
5 – Malik: That it reached him from his grandfather Malik ibn Abi ‘Amir that ‘Uthman ibn
‘Affan said: The Messenger of Allah, peace and blessings be upon him, said: “Do not
sell the dinar for two dinars, and do not sell the dirham for two dirhams.”
6 – Malik: From Yahya ibn Sa‘id, that he said: The Messenger of Allah, peace and
blessings be upon him, ordered the two Sa‘ds to sell vessels from the spoils of war, of
gold or silver, and they sold every three for four in cash, or every four for three in cash.
The Messenger of Allah, peace and blessings be upon him, said to them: “You have
engaged in riba; return it.”
7 – Malik: From Nafi‘, from ‘Abd Allah ibn ‘Umar, that ‘Umar ibn al-Khattab said: “Do not
sell gold for gold except equal for equal, and do not give some advantage over others,
and do not sell silver for silver except equal for equal, and do not give some advantage
over others, and do not sell silver for gold with one deferred and the other immediate. If
he asks you to wait until he enters his house, do not wait, for I fear for you ‘al-rima’
(riba).” And “al-rima’” is riba.
8 – Malik: That it reached him from al-Qasim ibn Muhammad, that ‘Umar ibn al-Khattab
said: “The dinar for the dinar, the dirham for the dirham, the sa‘ for the sa‘; and do not
sell deferred for immediate.”
His saying “kali’” with a hamza means deferment.
9 – Malik: From Humayd ibn Qays al-Makki, from Mujahid, that he said: I was with...
Abdullah ibn Umar was approached by a goldsmith who said: “O Abu Abdurrahman, I
craft gold and then sell an item made from it for more than its weight, thus making a
profit equivalent to the value of my labor.” Abdullah ibn Umar forbade him from doing
so. The goldsmith kept repeating the question to him, but Abdullah continued to forbid
him until they reached the door of the mosque or to a mount he intended to ride. Then
Ibn Umar said: “A dinar for a dinar, a dirham for a dirham, with no excess between
them. This is the covenant our Prophet entrusted to us, and our covenant to you.”
10 – Malik narrated from Yazid ibn Abdullah ibn Qasit that he saw Sa’id ibn al-Musayyib
exchanging gold for gold: he would pour his gold into one side of the scale, and his
counterpart would pour his gold into the other side; if the scale balanced, they would
take and give.
I said: Al-Shafi’i holds this view; in the Minhaj: If food is sold for food of the same type,
immediate exchange and equivalence and hand-to-hand delivery before separation is
required. If it is two different types, like wheat and barley, disparity is allowed, but
immediacy and hand-to-hand delivery before separation are required. The same applies
to currency for currency as with food for food. In Al-Wiqayah, the rationale is the
measure with the same type, so it is forbidden to sell measured or weighed goods of the
same kind with disparity, even if not edible, like gypsum or iron, but permitted if
equivalent, and without a standard, like a handful for two handfuls. If both conditions
exist, excess and delay are forbidden; if both are absent, it is permitted; if one exists
without the other, excess is permitted but not delay, such as salam of a Herat garment
for another Herat garment, or wool for barley. Specification of ribawi (usurious) items is
required in non-currency exchange without stipulating hand-to-hand delivery. Al-
Baghawi said: The Hanafi scholars held that hand-to-hand delivery in the transaction of
foodstuffs is only stipulated in currency exchange, i.e., exchanging one currency for
another or the same type.
I say: Their interpretation of “hand-to-hand” was specification.
[Al-Musawwa from the hadiths of Al-Muwatta 2/4–7]
Sale of Food Before Taking Possession
It is not permitted to sell food purchased before taking possession of it.
1 – Malik narrated from Nafi’ from Abdullah ibn Umar that the Messenger of Allah,
peace be upon him, said: “Whoever buys foodstuff, let him not sell it until he has
received it.”
2 – Malik narrated from Abdullah ibn Umar that the Messenger of Allah, peace be upon
him, said: “Whoever buys foodstuff, let him not sell it until he has taken possession of
it.”
3 – Malik narrated from Nafi’ from Abdullah ibn Umar that he said: “In the time of the
Messenger of Allah, peace be upon him, we used to buy food, and someone would be
sent to order us to move it from the place we bought it to another place before we sold
it.”
4 – Malik narrated from Nafi’ that Hakim ibn Hizam bought food that Umar ibn al-
Khattab had ordered for the people. Hakim then sold the food before taking possession
of it. When Umar was informed, he reversed the sale and said: “Do not sell food you
have bought until you have received it.”
5 – Malik reported that it reached him that certificates (sukuk) were issued to people in
the time of Marwan ibn al-Hakam for food from the public granary. People traded these
certificates among themselves before taking possession of the food. Zayd ibn Thabit
and another companion entered upon Marwan ibn al-Hakam and said: “Do you permit
the sale of riba, O Marwan?” He replied: “I seek refuge with Allah! What is that?” They
said: “These certificates—people trade them and then sell them before taking
possession.” Marwan then sent the guards to retrieve them from people’s hands and
return them to their owners.
6 – Malik narrated from Musa ibn Maysarah that he heard a man ask Sa’id ibn al-
Musayyib: “I am a man who sells on credit.” Sa’id replied: “Do not sell except what you
have brought to your own place.”
7 – Malik narrated from Yahya ibn Sa’id from al-Qasim ibn Muhammad that he said: “I
heard Abdullah ibn Abbas being asked about a man who had advanced payment for
fine garments and wanted to sell them before taking possession.” Ibn Abbas said: “That
is silver for silver,” and he disliked it.
Malik said: “The agreed-upon practice among us, about which there is no difference, is
that whoever buys food—wheat, barley, sult (a type of grain), corn, millet, or any of the
cotton seeds or anything similar to them for which zakat is due, or any of the edible
oils—olive oil, ghee, honey, vinegar, cheese, milk, or shirq (a type of dairy), and similar
foodstuffs—the purchaser must not sell any of it until he has taken possession and
received it.” I said: Saba’ib are fine Yemeni garments—turbans or veils. The certificate
(sakk) was a document the rulers would write for people for their stipends and gifts, and
people would sell what was in them before receiving it, handing the buyer the certificate
to collect it. On the sale of certificates in Sharh al-Sunnah: The scholars agree that
whoever buys food may not sell it before taking possession, and they differed regarding
other goods. Al-Shafi’i and Muhammad said: There is no difference between food,
merchandise, and real estate; none may be sold before possession. Abu Hanifa and
Abu Yusuf said: Real estate may be sold before possession, but not movables. Malik
said: Other than food, it may be sold before possession.
[Al-Musawwa from the hadiths of Al-Muwatta 2/19–21]
Sale of Food by Measure, Then the Seller Consumes It
1 – Sahnun asked Ibn al-Qasim: “What if a man bought food by specific measure, then
the seller went and sold it or consumed it?” Ibn al-Qasim said: “According to Malik, the
seller must provide the buyer with the like of that food, fulfilling what is due.” Ibn al-
Qasim said: “I asked: Should the buyer have the option—if he wishes, he can compel
him to deliver the food, or if he wishes, take his gold?” He said: “No, the seller is only
obliged to deliver similar food. There is no option here; it is like a man who consumes
another’s food—he must replace it with the like.”
2 – Sahnun asked: “What if I have a loan with a man, and when it is due, I delegate his
son, his slave, his wife, his mudabbar (a slave promised freedom at the master’s death),
or his umm walad (slave-mother of his child) to collect it?” Ibn al-Qasim said: “I dislike
appointing these, because they are as if they are the debtor, so it is not permitted for me
to appoint the debtor to collect what is owed. If his children are adults and have
separated from his household, I see no harm, and he follows up with their collection if
he wishes.”
3 – Malik was asked about a man who sold food to another for a deferred price, and the
creditor borrowed dinars from someone else equal to those owed him by the food seller,
or he bought goods from someone for the same amount as the dinars owed by the food
seller. When the term was due, the lender assigned the debt or sold the goods for that
gold to the buyer of the food, and the one assigned wanted to take from him food, flour,
raisins, or dates. Malik said: “As for the type of food originally bought, he may take from
it the like of its measure in its type. As for other fruits, raisins, and similar, or any other
food, he may only take what it would be lawful for the seller to take.”
[Al-Mudawwana al-Kubra 3/167–168]
Sale of ‘Ariyyah (Usufruct Permits to Collect Fruit)
Concession in ‘Ariyyah
1 – Malik narrated from Nafi’ from Abdullah ibn Umar from Zayd ibn Thabit that the
Messenger of Allah, peace be upon him, granted a concession to the owner of an
‘ariyyah (usufruct) to sell it according to estimation.
2 – Malik narrated from Dawud ibn al-Husayn from Abu Sufyan, the freedman of Ibn Abi
Ahmad, from Abu Huraira, that the Messenger of Allah, peace be upon him, granted a
concession for the sale of ‘ariyyahs by estimation, in amounts less than five awsaq or in
five awsaq—Dawud was uncertain whether it was five or less than five.
I said: ‘Ariyyah is a form meaning “usufruct” from ‘ara—ya‘ruhu, meaning to intend or
visit, or from ‘ari—ya‘ri, meaning to strip off one’s garment, as if it is stripped from the
general prohibition of mazabana (barter of dates on the trees; prohibited), i.e., it is
exempted. Al-Shafi’i held likewise, regarding wheat... Al-Minhaj:
A sale is not valid if it is of grain in its ear for clean grain; this is mahāqala. Nor is it valid
to sell fresh dates on the palm for dried dates; this is mazabana. However, ariyah
(arīyah) is permitted, which is the sale of fresh dates on the palm for dried dates on the
ground, or grapes on the vine for raisins, provided it is less than five wasqs. Muhammad
said, “And this is what we follow.” Malik ibn Anas mentioned: Ariyah occurs when a man
owns palm trees and allows another to eat from them, giving him the fruit of one or two
palms to pick for his family, but then it becomes burdensome for him to keep entering
his orchard, so he asks him to forgo his share in exchange for an equivalent measure of
dried dates at the time of harvest. All of this is permissible according to us, because all
the dates originally belonged to the first man, and he gives from them as he wishes. If
he wishes, he may hand over the palm’s fruit, or if he wishes, he may give him an
equivalent measure of dried dates, since this is not considered a sale. But if it is
considered a sale, then it is not permitted to exchange fresh fruit for dried dates with
deferred payment.
285
Bay‘ al-‘Urban (Earnest Money Sale)
The prohibition of Bay‘ al-‘Urban
1. Malik: From a trustworthy source, from Amr ibn Shu‘ayb, from his father, from his
grandfather, that the Messenger of Allah forbade bay‘ al-‘urban (earnest money
sale).
2. Malik said: In our view, and Allah knows best, this is when a man buys a slave or
a female slave, or hires a riding animal, and then says to the seller or lessor, “I
will give you a dinar or dirham or more or less, on the condition that if I take the
item or use the animal, what I gave you is part of the price or the hire. But if I do
not buy or hire, then what I gave you is yours for nothing.”
I said: This is the position of the scholars in al-Minhaj: Bay‘ al-‘urban is not valid,
i.e., to purchase and give him money to be part of the price if he accepts the
item, otherwise it is a gift. Al-Mahalli said: Its invalidity is due to the inclusion of
the condition of returning and gifting if he does not accept the item.
[Al-Musawwa min Ahadith al-Muwatta, vol. 2, pp. 33-34]
Sale of Real Estate or Leased Land
It is permitted to sell houses and leased land, contrary to al-Shafi‘i, and the lease does
not become void. The rent remains for the seller for the remainder of the lease period. It
is not permitted for the buyer to stipulate [the lease], as this leads to riba, unless the
sale is for non-monetary goods. If the buyer did not know the land was leased, this is a
defect, and he has the right to annul the sale.
Sale of Absent Real Estate
[Al-Qawanin al-Fiqhiyyah, p. 305]
1. Sahnun said to Ibn al-Qasim: What if I bought a house from a man which is
absent, and I said, “I know it,” but we did not describe it in our contract— is this
purchase valid? Ibn al-Qasim said: Yes, if the seller knows what he sold.
2. Sahnun said: What is Malik’s opinion regarding someone who sells sheep he
owns, some present and some absent, and each describes his goods to the
other, then they part before taking possession? Ibn al-Qasim said: There is no
harm in this according to Malik.
Sahnun said: What is the basic position of Malik regarding someone who sells
goods, animals, or clothing specifically, and the item is in a different place? If it is
nearby, there is no harm, and payment is permissible. If it is distant, the sale is
permitted, but payment is only valid if it is real estate, whether near or far.
Ibn al-Qasim said: Yes, this is Malik’s opinion.
Malik said: This is because houses and land are considered secure.
[Al-Mudawwana al-Kubra, vol. 3, p. 258]
Sale upon Sale is Forbidden
The prohibition of sale upon sale
1. Malik: From Nafi‘, from Abdullah ibn Umar, that the Messenger of Allah, peace be
upon him, said:
“None of you should sell over the sale of his brother.”
YAV
Gharar (Uncertainty)
I said: This is also the view of al-Shafi‘i in al-Minhaj, and the prohibition includes selling
over another’s sale before it is binding, such as telling the buyer to annul the sale so he
can sell to him instead, or telling the seller to annul so he can buy for a higher price. In
Sharh al-Sunnah: According to the Hanafis, “sale over the sale of his brother” refers to
outbidding, because in their view the option of place does not apply in sales, so after
mutual consent, another sale cannot occur upon it.
[Al-Musawwa min Ahadith al-Muwatta, vol. 2, p. 31]
Sale of Gharar (Uncertainty)
The prohibition of selling gharar
1. Malik: From Abu Hazim ibn Dinar, from Sa‘id ibn al-Musayyib, that the
Messenger of Allah forbade the sale of gharar.
Malik said: Among examples of gharar and risk is when a man’s animal is lost or
his slave has fled, and its value is fifty dinars. Another says, “I will buy it from you
for twenty dinars.” If the buyer finds it, the seller loses thirty dinars; if he does not
find it, the seller gets twenty dinars from the buyer.
2. Malik said: There is another defect in this, for if the lost item is found, it is not
known whether it increased or decreased in value, or what defect occurred to it;
this is the greatest risk.
3. Malik said: According to us, it is also risk and gharar to buy what is in the wombs
of females—whether women or animals—because one does not know if it will
come out or not, and if it does, whether it will be good or bad, complete or
defective, male or female; all of this varies in value depending on its
characteristics.
I said: This is the position of the scholars. In al-Anwar: The Messenger of Allah forbade
the sale of gharar, which is the concealment of the outcome of a thing and its being
subject to two possible results, such as selling birds in the air or fish in water. In al-
Wiqayah: It is not permitted to sell fish not yet caught, or game thrown into an enclosure
from which it cannot be taken except with a trick, nor to sell birds in the air, nor unborn
offspring, nor milk in the udder.
[Al-Musawwa min Ahadith al-Muwatta, vol. 2, pp. 29-30]
Sale of Gharar
It is forbidden due to the prohibition, except if it is minor and excusable. There are ten
types of forbidden gharar. The first type is the impossibility of delivery, such as a
runaway camel, and also selling a fetus in its mother’s womb without exception, as well
as selling what has not been created, such as the sale of “habal habala” (offspring of
unborn offspring), which is the offspring of what the stallions will produce. The second
type is ignorance of the type of price or item, such as saying, “I sell you what is in my
sleeve.” The third type is ignorance of the description of either, such as saying, “I sell
you a garment from my house,” or selling an item without inspection or description.
Note: In the Maliki school, it is permitted to sell an absent item based on its description
or a prior viewing; Abu Hanifa permitted it without description or viewing, and al-Shafi‘i
prohibited it absolutely. The Maliki school requires five conditions for the sale of an item
by description: (1) It must not be very far away, such as Andalusia or Ifriqiya; (2) It must
not be extremely close, such as present in the town; (3) It must be described by
someone other than the seller; (4) All intended descriptions must be included; (5)
Payment must not be made conditionally except in secure items like real estate, though
payment without condition is permitted. If the item matches the description and prior
viewing, the sale is binding; if not, the buyer has the option.
YA4
Note: It is permitted to sell what is in bundles of clothing by description. Unlike a folded
garment that has not been turned over and spread out.
Type Four: Ignorance of the Amount of One of the Exchanged Items
For example, saying: “I sold to you at today’s price,” or “at what people are selling for,”
or “at what so-and-so says”—except for sales by estimation (jazaf), which has been
discussed previously.
It is not permissible to sell wheat in its ear due to ignorance of its quantity, but it is
permissible to sell it together with its ear, contrary to al-Shafi‘i. Similarly, it is not
permissible to sell it in its straw, but it is permissible to sell it together with its straw. It is
not permissible to sell goldsmiths’ sweepings (dirt containing gold particles).
It is permitted to sell fresh fava beans, walnuts, and almonds in their outermost shells,
contrary to al-Shafi‘i.
Type Five: Ignorance of the Term
Such as saying: “Until the arrival of Zayd,” or “until the death of ‘Amr.”
But it is permissible to say: “Until the harvest,” or “until most of the threshing is done,” or
“until such-and-such month,” and it is understood as meaning the middle of that month.
Type Six: Two Sales in One Sale
This is when a single item is sold for one of two different prices, or one of two items is
sold for a single price.
The first is to say: “I sold you this garment for ten (in cash) or for twenty (on deferred
payment),” with the sale being binding in one of the two.
The second is to say: “I sold you one of these two garments for such-and-such,” with
the sale being binding in one of them.
Type Seven: Sale of What Is Not Expected to Remain Sound
Such as selling a dying person’s property in the throes of death.
Type Eight: Pebble Sale (Bay‘ al-Hasā)
This is when a person has pebbles in his hand; when one falls, the sale becomes
binding.
Type Nine: Sale by Throwing (Bay‘ al-Munābadha)
This is when one throws his garment to the other and the other throws his garment to
him, and the sale becomes binding by that act.
Type Ten: Sale by Touch (Bay‘ al-Mulāmasa)
This is when one touches the garment, and the sale becomes binding by that touch
even if he does not examine it.
[Al-Qawānīn al-Fiqhiyyah, pp. 282–283]

Prohibition of Bay‘ al-Mulāmasa and Bay‘ al-Munābadha

1. Malik: From Muhammad ibn Yahya ibn Habban and from Abu al-Zinad, from al-
A‘raj, from Abu Hurayra, that the Messenger of Allah forbade mulāmasa and
munābadha.
Sale of What the Seller Does Not Possess
2. Malik said: (Mulāmasa) is when a man touches a folded garment without
unfolding or examining it, or buys it at night without knowing what is in it.
 (Munābadha) is when a man throws his garment to another and the other throws
his garment to him, without either of them examining, and each says: “This for
that.” This is what was prohibited of mulāmasa and munābadha.
I said: The scholars are agreed on this. In al-Minhaj: The Messenger of Allah (peace be
upon him) forbade mulāmasa, which is to touch a folded garment and then buy it with
no option (khiyar) after seeing it, or to say: “If I touch it, I have bought it.” (Munābadha)
is to make the act of throwing the sale itself. Al-Muhalli said: The invalidity here is due to
lack of inspection, lack of formula, or a corrupt condition. In al-Wiqaya: Sale of
mulāmasa, throwing the stone, and munābadha are not permitted; if the buyer touches
the item, or puts a stone on it, or the seller throws it to him, the sale is binding. The
commentator said: These sales are invalid because the contract’s conclusion depends
on one of these actions, making it like gambling.
[Al-Musawwa from the Hadiths of Al-Muwatta’, vol. 2, p. 30]

Sale of What the Seller Does Not Possess

It is not permissible to sell what one does not possess in specific items, except in salam
sale (forward sale) by description.
1.
Malik: It has reached him that a man wanted to buy food from another on credit.
The seller took him to the market, showing him piles and saying, “From which do
you want me to buy for you?” The buyer said, “Will you sell me what you do not
possess?” They went to Abdullah ibn Umar and mentioned this to him. Abdullah
ibn Umar said to the buyer, “Do not buy from him what he does not possess,”
and said to the seller, “Do not sell what you do not possess.” (Subar: plural of
subrah, a heap or pile.)
2.
Malik: From Yahya ibn Sa‘id, who heard Jamil ibn Abd al-Rahman the muezzin
say to Sa‘id ibn al-Musayyib: “I am a man who buys from the provisions given to
people at al-Jar, as Allah wills, then I want to sell the food that is owed to me on
credit.” Sa‘id said: “Do you intend to deliver to them from the provisions you
bought?” He said: “Yes.” So Sa‘id forbade him from that.
I said: Al-Jar was a village on the coast near Medina to which ships came. In Sharh al-
Sunnah: This is in sales of specific items, not sales by description. If the buyer accepts
something described, commonly available at the specified place, it is permissible, even
if not owned at the time of contract. Selling what is not possessed also includes selling
the property of another without their permission, as it is gharar (uncertainty)—one does
not know if the owner will approve or not. This is the view of al-Shafi‘i. Abu Hanifa said:
Sale by a non-owner is valid but pending the owner’s approval. As for the sale of “qitāt”
(allotments, i.e., assigned shares), the scholars say it is not allowed until it reaches the
one to whom it was written, who then owns and may sell it. (Qit‘, from the verse:
“Hasten for us our share!” [Qur’an, Sad 38:16].)
[Al-Musawwa from the Hadiths of Al-Muwatta’, vol. 2, pp. 18–19]

Exchange Must Be Equal (Mithl bi-Mithl)

One may not sell wheat for barley except like for like.
1.
 Malik: It reached him that Sulayman ibn Yasar said: The fodder for Sa‘d ibn Abi
Waqqas’ donkey ran out, so he told his servant: “Take wheat from your family
and buy barley with it, but do not take except like for like.”
2.
Malik: From Nafi‘, from Sulayman ibn Yasar, who told him that Abd al-Rahman
ibn al-Aswad ibn Abd Yaghuth ran out of fodder for his riding animal, so he told
his servant: “Take food from your family’s wheat and buy barley with it, but do not
take except like for like.”
 Malik: It reached him from al-Qasim ibn Muhammad from Abu Mu‘ayqib al-Dawsi
the same.
I said: This is contradicted by the hadith of al-Shafi‘i and Muslim: “Sell gold for silver and
silver for gold, and wheat for barley, hand to hand, as you wish.” Most scholars hold this
view. In Sharh al-Sunnah: The majority of scholars permit selling wheat for barley with
disparity, except what is narrated from Malik, who said it is not permitted except equally.
[Al-Musawwa from the Hadiths of Al-Muwatta’, vol. 2, pp. 8–9]

Sale of Benefits Is in Lease and Hiring

[See: Ijara (Lease) – Kirā’ (Hiring)]

Najsh Sale Is Forbidden

Prohibition of Najsh (Bid Rigging/Price Boosting)
1. Malik: From Nafi‘, from Abdullah ibn Umar, that the Messenger of Allah (peace be
upon him) forbade najsh. He said: Najsh is when you offer more for an item than
its price, without intending to buy it, so that others imitate you.
I said: The scholars are agreed on this in al-Minhaj. Among the prohibited matters is
najsh: raising the price not out of desire but to deceive others into buying. In al-Wiqaya:
Najsh is disliked.
[Al-Musawwa from the Hadiths of Al-Muwatta’, vol. 2, p. 31]

Sale of Palm Trees after Pollination (Ta’bir)

Whoever sells palm trees after they have been pollinated, their fruit belongs to the seller
unless the buyer stipulates otherwise.
1. Malik: From Nafi‘, from Abdullah ibn Umar, that the Messenger of Allah (peace be
upon him) said: “Whoever sells palm trees after they have been pollinated, their
fruit belongs to the seller unless the buyer stipulates otherwise.”
I said: Pollinated (abrat) the palm tree, or pollinated it myself (abartuha), meaning it has
been fertilized. Al-Shafi‘i agrees. In Sharh al-Sunnah: The majority of scholars act on
this, that if one sells a palm tree after pollination, the fruit does not enter into the general
sale of the tree unless stipulated. If the fruit is still in its initial stage and has not split, it
is included in the sale like the branches; but if after splitting but before pollination, it is
not included. The Hanafis say: If one sells a palm tree with emerging fruit, the fruit is not
included unless stipulated, just as crops are not included in the sale of land. The phrase
“after pollination” is proof against them.
[Al-Musawwa from the Hadiths of Al-Muwatta’, vol. 2, p. 16]

Pledge of Allegiance to the Caliph on the Pillars of Islam

Pledge of allegiance on the pillars of Islam, leaving major sins, and other legal rulings.
1. Allah the Exalted said: “O Prophet, when believing women come to you, pledging
allegiance to you on [the following]…”
Sale of the Caliph on the Pillars of Islam
294 That they do not associate anything with Allah, nor steal, nor commit adultery, nor
kill their children, nor bring forth a false accusation which they invent between their
hands and feet, nor disobey you in what is right—so accept their pledge, and ask Allah
to forgive them. Indeed, Allah is All-Forgiving, Most Merciful. (Surah Al-Mumtahina,
verse 12)
2. Malik: From Yahya ibn Sa'id, who said: 'Ubadah ibn Al-Walid ibn 'Ubadah ibn Al-
Samit informed me from his father from his grandfather, who said: The
Messenger of Allah, peace be upon him, took our pledge on hearing and
obedience in ease and hardship, in enthusiasm and reluctance, and that we do
not contest the authority with its rightful people, and that we speak—or stand—for
the truth wherever we are, not fearing the blame of any blamer for the sake of
Allah.
Malik: From Muhammad ibn Al-Munkadir from Umaymah bint Ruqayqah, who said: I
came to the Messenger of Allah, peace be upon him, with a group of women who
pledged allegiance to him upon Islam, and they said to him: O Messenger of Allah, we
pledge to you that we will not associate anything with Allah, nor steal, nor commit
adultery, nor kill our children, nor bring forth a false accusation which we invent between
our hands and feet, nor disobey you in what is right. The Messenger of Allah, peace be
upon him, said: "As much as you are able and can bear." They said: Allah and His
Messenger are more merciful to us than ourselves. Come, let us pledge to you, O
Messenger of Allah. The Messenger of Allah, peace be upon him, said: "I do not shake
hands with women; my words to a hundred women are like my words to one woman, or
the same as my words to one woman."
I said: In this is evidence for the obligation to accept the rulings of the caliphs when they
agree with the Shari‘ah, and in it is evidence for the virtue of commanding the rulers to
do good and forbidding them from evil, and in it is evidence that the pledge is not limited
to accepting the caliphate.
Al-Musawwa min Ahadith al-Muwatta, vol. 2, pp. 216–217 [See: The Caliphate and the
Pledge to Accept It]
290 Two Sales in One Transaction Two Sales in One Transaction Prohibition of Two
Sales in One Transaction.
1. Malik: It has reached him that the Messenger of Allah, peace be upon him,
prohibited two sales in one transaction.
2. Malik: It has reached him that Al-Qasim ibn Muhammad was asked about a man
who bought a commodity for ten dinars cash, or for fifteen dinars on deferred
payment, and he disliked that and forbade it.
It is correct.
I said in Sharh al-Sunnah: They interpreted "two sales in one transaction" in two ways:
The first is that one says, "I sold you this garment for ten (dinars) cash or twenty (dinars)
deferred for a year." This is invalid according to most scholars. But if he sells it on one
of the two terms in the session, there is no disagreement. The other is that he says, "I
sold you my slave for twenty dinars on the condition that you sell me your maidservant."
This is invalid because he made the price of the slave twenty dinars and stipulated the
sale of the maidservant, which is a non-binding condition. If it is not binding, part of the
price is void, so what remains of the sale is in exchange for the remainder, which is
unknown. As for combining two items in one contract, such as selling a house and a
slave for one price, this is permissible and not from the category of two sales in one
transaction; rather, it is a single contract combining two items.
Al-Musawwa min Ahadith al-Muwatta, vol. 2, pp. 26–27
Sales with Deferred Payment A commodity may be bought and then sold back to its
seller, and many scenarios are possible, some permissible and some not. The
explanation is that he sells it to him for the same price as the first sale, or less, or more,
and for each case, he may sell it for the same deferred term, or a nearer term, or a
farther term. The nearer term is considered cash, so there are nine scenarios, because
three times three equals nine.
(First) He sells it for the same price for the same term. (Second) He sells it for the same
price for a longer term. (Third) He sells it for the same price for cash or a nearer term.
(Fourth) He sells it for less than the price for the same term. (Fifth) He sells it for less
than the price for a longer term.
These five scenarios are unanimously permissible. (Sixth) He sells it for less than the
price for cash or a nearer term—this is not permissible because it leads to a loan that
yields a benefit, for the one who pays first is considered a lender, since anyone who
pays what is not yet due is considered a lender; he paid less to get the commodity
whose price is more than he paid. (Seventh) He sells it for more than the price for the
same term. (Eighth) He sells it for more than the price for a nearer term or for cash—
these two scenarios are permissible. (Ninth) He sells it for more than the price for a
longer term—this is not permissible because it leads to a loan that yields a benefit, for
he deferred the payment to get more, and anyone who defers something that is due to
him is considered a lender.
From this, it is deduced that seven scenarios are permissible and two are prohibited:
selling for less than the price for a nearer term, and for more than the price for a longer
term, because each of them leads to a loan that yields a benefit, and because the
contracting parties are suspected of intending to pay dinars for more in the future, with
the commodity serving as a means to display that. It is prohibited to block the means
(sadd al-dhara'i). Al-Shafi‘i and Dawud permitted them, based on the absence of
suspicion, and because they considered the annulment (iqala) a second sale.
As for the rest of the scenarios, there is no suspicion in them. If one of the two
prohibited scenarios occurs, only the second sale is annulled according to Ibn al-Qasim,
and both sales together according to Ibn al-Majshun.
Supplement: The scenarios may be twenty-seven, because the nine mentioned
scenarios can occur in selling the commodity alone, or with an addition, or part of it—
three times nine equals twenty-seven. The rule regarding what is permissible and what
is not is: if the second sale is for the same term as the first, it is always permissible due
to set-off; if it is for cash or a nearer term, then if he bought it (the commodity) or part of
it, it is permissible for the same price or more, but not for less; if he bought it with an
addition, it is not permissible for the same price, less, or more. As for a longer term, if he
bought it alone or with an addition, it is permissible for the same price or less, but not for
more; and if he bought part of it, it is not permissible for the same price, less, or more.
Selling the commodity from someone other than its seller is always permissible. As for
the issues of this chapter, they occur in annulment (iqala), which is selling it back to its
seller, and annulment is permissible and recommended unless it leads to what is not
permissible or suspicion of what is not permissible, which is according to Thawri, and
according to Abu Hanifa, it is annulment of the first sale. Likewise, tawliyah is
permissible, which is the initiation of a second sale; what is permissible in other sales is
permissible in it, and what is prohibited in other sales is prohibited in it, according to
Malik.
Al-Qawanin al-Fiqhiyya, pp. 297–298
The pillars of sales are five: the seller, the buyer, the price, the sold item, and the
wording or its equivalent in speech or action indicating offer and acceptance. As for the
seller and buyer, each must meet three conditions: (First) to be of sound judgment,
excluding the insane, the intoxicated, and the child who does not understand; (Second)
to be owners, or agents for owners, or guardians over them. As for buying for someone
without their permission, or selling on their behalf likewise, it is a sale by an
unauthorized person (fuduli), which is concluded but dependent on the owner’s
permission. Al-Shafi‘i said it is not concluded. (Third) They must both act willingly, for a
coerced sale or purchase is invalid. If a man is forced to pay money unjustly and sells
something from his property for that reason, the sale is not valid, and the seller takes
back what he sold from the buyer without the price, and the buyer returns the price to
the seller.
Al-Qawanin al-Fiqhiyya, Sales and Their Pillars
This is their sale. The one who is coerced into selling—whether the price is handed to
the one coerced or to the one coercing him—this is not considered part of the liabilities
of laborers or tax collectors; if the sale is executed, there is no right of recourse for
them. If the buyer coerces the seller into the sale, he is like a usurper (ghasib) in all its
rulings. It is a condition that the seller be of sound judgment (rashid); thus, the sale of
the prodigal (safih) or one under interdiction is not valid, and his purchase is suspended
pending the approval of his guardian. Islam is not a condition except in the purchase of
a Muslim slave and in the purchase of a mushaf (copy of the Qur’an). Al-Shafi‘i
prohibited selling to or buying from one born blind, contrary to Malik and Abu Hanifa.
As for the price (thaman) and the sold object (mabī‘), each must fulfill four conditions: it
must be pure (tahir), beneficial, known, and deliverable. Our statement “pure” excludes
the impure, for its sale is not permitted, such as wine and swine. There is a difference of
opinion regarding the sale of ivory and manure, and regarding the sale of impure oil: the
well-known position is that it is absolutely prohibited, but Ibn Wahb permitted it if its
impurity is disclosed. There is also a difference of opinion about using it for lighting
outside the mosques. Our statement “beneficial” excludes that which has no benefit,
such as vermin and dogs. There is a difference of opinion about the permissibility of
selling dogs for hunting or herding. If the benefit is not permissible, it is as if it does not
exist, as with musical instruments. Our statement “known” excludes the unknown, for its
sale is not permitted, except that the sale of undetermined bulk (juzaf) is allowed with
two conditions: (1) It must be something measured or weighed, such as food and its
like, and it is not permitted in that which is valued per item, such as garments, coins,
and jewels, contrary to the other two Imams, nor in that which is sold by number, such
as livestock. (2) The seller and buyer must be equally aware or equally ignorant of its
amount, contrary to the other two Imams. Our statement “deliverable” excludes the sale
of birds in the air, fish in water, and the like, including usurped property, which may not
be sold except to the usurper himself.
Section: The buyer must deliver the price; if either party says, “I will not deliver what is
in my possession until I receive what I bargained for,” the buyer is compelled to deliver
the price, then the sold object is taken from the seller, in agreement with Abu Hanifa.
Malik said: the seller may withhold the merchandise until payment is received; al-Shafi‘i
said: the seller is compelled first, then the buyer.
Issue: Regarding liability for the sold item: after possession, liability is upon the buyer
and any loss is his, by agreement, except for slaves sold until the completion of three
days’ guarantee, and female slaves with defects until cleared, and fruit sold and then
struck by a calamity. Before possession, liability is upon the seller in both opinions, but
in the Maliki school, liability transfers to the buyer by mere contract in every sale except
in the following cases: (1) Sale of an absent item by description (with disagreement); (2)
Sale with option (khiyar); (3) Sale of fruit before ripening; (4) Sale requiring fulfillment of
measure, weight, or number, unlike bulk sales—if the measured item perishes and the
scales are balanced before delivery into the buyer’s container, there is disagreement
whether liability is with the seller or buyer; (5) Invalid sale—liability remains with the
seller until the buyer takes possession.
Issue: On disputes between the two contracting parties, there are six scenarios: (1) If
they disagree on the validity or invalidity of the sale, the statement of the one claiming
validity is accepted, as validity is the default. (2) If they disagree about the type of price,
e.g., one says “dinars” and the other “wheat,” both swear an oath and the sale is
annulled. (3) If they disagree on the amount of the price. (4) If they disagree about its
due date, whether immediate or deferred. (5) If they disagree about the sold item. The
ruling in these cases is the same: if the item is with the seller, both swear an oath and
the sale is annulled according to the three Imams; if it is still with the buyer, some say
both swear and the sale is annulled, others say the buyer’s statement is accepted with
his oath. If the item has perished in the buyer’s hand, some say both swear and the sale
is annulled, and they revert to the item’s value (in agreement with al-Shafi‘i), others say
the buyer’s statement is accepted (in agreement with Abu Hanifa). (6) If they disagree
about a stipulation of option (khiyar), Ibn al-Qasim said the statement of the one
claiming finality is accepted; Ashhab said the one claiming the option is accepted;
others say the buyer’s statement is accepted in every case.
Section: If both swear oaths, the seller swears first, in agreement with al-Shafi‘i; some
say the buyer swears first, in agreement with Abu Hanifa; others say lots are drawn
between them.
[Al-Qawanin al-Fiqhiyyah, 271–273]
Sales that are not permitted
Prohibition of selling habal al-habala, mudhamin, and mulaqih:
1. Malik, from Nafi‘, from Abdullah ibn Umar: The Messenger of Allah (peace be
upon him) forbade the sale of habal al-habala (a pre-Islamic sale in which a man
would buy a camel to be delivered when a she-camel gave birth, and then when
her offspring gave birth).
2. Malik, from Ibn Shihab, from Sa‘id ibn al-Musayyib: There is no riba in animals,
but three types of animal sales are prohibited: mudhamin, mulaqih, and habal al-
 habala. Mudhamin is what is in the wombs of female camels; mulaqih is what is
in the loins of male camels.
I say: This is the view of the scholars. Muhammad said: All these sales are disliked and
should not be engaged in, as they involve gharar (uncertainty/speculation). In al-Minhaj:
The Messenger of Allah (peace be upon him) forbade habal al-habala, which is the sale
of the offspring of the offspring, or for a price to be paid upon the birth of the offspring of
the offspring; and mulaqih, which is what is in the wombs; and mudhamin, which is what
is in the loins of the males.
[Al-Musawwa from the hadiths of Al-Muwatta, vol. 23/2]
Invalid Sales
Invalidity in a sale arises from five sources: the contracting parties, the price, the sold
object (already discussed under essential elements), gharar (uncertainty), and riba
(usury/interest, already discussed in its chapters). The fifth is all other forbidden sales.
In this chapter, we mention ten types, apart from what has already been discussed or
will be mentioned elsewhere.
Type One: The sale of food before possession. Whoever buys food, whether by sale,
gift, settlement, compensation for injury, dowry, or other transactions, may not sell it
before taking possession, but may gift it or advance it as a loan before possession;
likewise, rescinding the contract, partnership, and assignment—contrary to the other
two Imams. For partnership, assignment, and rescission to be valid, it must be at the
same price and with the agreement of the one holding the food, to avoid gharar. The
prohibition applies to both ribawi and non-ribawi food in the well-known view, unless it
was sold in bulk (juzaf), in which case it may be sold before possession, contrary to the
other two Imams. If one acquires food by way of salam, gift, or inheritance, it is
permitted to sell it before possession. As for non-food items, it is permitted according to
Malik to sell them before possession, contrary to Abu Hanifa.
Type Two: The sale of ‘inah (a form of buy-back sale used as a device to get around
prohibition), which is manifestly a permitted act used to reach what is prohibited, and is
thus forbidden as a preventive measure (sadd al-dhara’i‘), contrary to the other two
Imams. It has three forms: (1) A man says to another, “Buy for me such-and-such an
item for such-and-such a price, and I will give you a profit of such-and-such,” for
example, “Buy it for ten and I will give you fifteen for it at a later date.” This leads to riba,
for in the Maliki school, what matters is what leaves one’s hand and what enters it, and
intermediaries are disregarded; it is as if this person lent another ten dinars and took
back fifteen at a later date, with the item as a disregarded intermediary. (2) If he says,
“Buy for me an item and I will give you a profit on it,” without specifying the price, this is
disliked but not forbidden. (3) If he seeks the item from him but does not find it, then...
[continues, Al-Qawanin al-Fiqhiyyah, 302]
The other person buys it without his (the first’s) instruction and says, “I have bought the
merchandise you requested from me, so buy it from me if you He became confused
about the months and fasted a month intending it to be Ramadan, but he fasted before
it. Ibn al-Qasim said: It has reached me from Malik, though I did not hear it from him,
that he said: If he fasts before [Ramadan], it does not suffice him; but if he fasts after it,
it suffices him. [Al-Mudawwana al-Kubra 1/183]
The Takbir on Friday
The virtue of the Takbir on Friday
1 - Malik: from Sumayy, the freedman of Abu Bakr ibn Abd al-Rahman, from Abu Salih
al-Samman, from Abu Huraira, that the Messenger of Allah, peace and blessings be
upon him, said: “Whoever bathes on Friday with the bath of janabah, then goes in the
first hour, it is as if he has offered a camel; whoever goes in the second hour, it is as if
he has offered a cow; whoever goes in the third hour, it is as if he has offered a horned
ram; whoever goes in the fourth hour, it is as if he has offered a chicken; whoever goes
in the fifth hour, it is as if he has offered an egg. When the imam comes out, the angels
are present listening to the remembrance.” Yawning and sneezing in prayer and the
greeting therein.
I said: This is the view of the scholars, and the sound opinion is that these hours are
subtle periods after midday, not the hours by which night and day are calculated. [Al-
Musawwa from the Hadiths of Al-Muwatta 1/196]
Yawning
[See: Greeting …]
Yawning and sneezing in prayer and the greeting therein
1 - Malik said regarding one who sneezes while in prayer: He does not praise Allah; if
he does so, it is to himself. Ibn al-Qasim said: I saw him [Malik] hold that it is better to
leave it. Ibn al-Qasim said: I saw Malik, when yawning afflicted him, place his hand over
his mouth.
2 - Waki‘ said, from al-‘Umari, from Nafi‘, from Ibn Umar: If one of you is greeted while in
prayer, let him gesture with his hand.
[Al-Mudawwana al-Kubra 1/98–99]
Trade with the lands of the enemy
1 - Sahnun asked Ibn al-Qasim: Did Malik dislike a man trading in the lands of war? He
said: Yes, Malik disliked it greatly and said: He should not go out to their lands where
the rulings of shirk (polytheism) apply to him.
2 - Sahnun ibn Sa‘id asked Ibn al-Qasim: What of the people of war—may anything at
all be sold to them, such as livestock, goods, weapons, saddles, copper, or anything
else, according to Malik?
Ibn al-Qasim said: Malik said: As for anything that strengthens them against the
Muslims—such as livestock, weapons, or anything known to be a strength in war, such
as copper or otherwise—they must not be sold that.
[Al-Mudawwana al-Kubra 3/278]
Trade with the lands of the non-Muslims
There are three issues therein:
Foodstuffs
First issue: Trade to the land of war is not permitted. Sahnun said: It is a disgrace, and a
Muslim should not enter their lands except to ransom a Muslim. The imam should
prevent people from entering it and station guards on the road to block them.
Second issue: If the people of war come to our lands, buying from them is permitted,
except that nothing may be sold to them which aids them in war or intimidates the
Muslims, such as horses, weapons, banners, iron, or copper. Of clothing, only what
protects from heat and cold may be sold, not what they adorn themselves with in war or
churches. Of food, only what is consumed, such as oil, salt, and fruit.
Third issue: Transactions with the dhimmi (protected non-Muslim) are permitted even if
they practice usury and sell wine and pork; however, Malik disliked that a Muslim sell a
commodity to a dhimmi for a dinar or dirham knowing it was obtained as the price of
wine or pork. He also disliked selling to them with coins inscribed with the name of
Allah, the Exalted. Ibn Rushd said: Dealings with a dhimmi are like dealings with a
Muslim usurer: if he repents, what he gained from usury is not lawful for him, unlike the
non-Muslim. Only what is permitted between Muslims is permitted between a Muslim
and a dhimmi; if he deals with him in what is not permitted in sale or otherwise, the
ruling is as it is between Muslims. [Al-Qawanin al-Fiqhiyya 319]
Trading wealth after the year’s completion
Trading wealth after the year’s completion
1 - Malik said: If a man had twenty dinars and a year passed over them, then he bought
with them a commodity and did not pay its zakat, and the commodity remained with him
after the year until another year passed, then he sold it for forty dinars after the year.
2 - Ibn al-Qasim said: He pays zakat on twenty dinars for the first year—half a dinar;
then for the second year, on thirty-nine dinars, then again half a dinar.
Sahnun ibn Sa‘id said: Why does he not pay zakat on the full forty for both years? He
replied: Because when half a dinar is taken from the wealth, it decreases; so he pays
zakat on what remains after its decrease, as when he gave to the needy, it is as if he
gave it when the year was up—thus, zakat is due on what remains for the second year.
Trading and zakat on trade goods
[See: Zakat on trade goods]
Plastering graves
[Al-Mudawwana al-Kubra 1/210]
1 - Malik said: I dislike plastering graves and building upon them, and these stones that
are built upon them.
2 - Ibn Wahb, from Ibn Lahi‘a, from Bakr ibn Suwadah, said: Graves used to be leveled
with the ground.
[Al-Mudawwana al-Kubra 1/170]
Love for the sake of Allah, the Exalted
The virtue of those who love one another for Allah
Love for the sake of Allah, the Exalted
1 - Malik: from Abdullah ibn Abd al-Rahman ibn Ma‘mar, from Abu al-Habbab Sa‘id ibn
Yasar, from Abu Huraira, who said: The Messenger of Allah, peace and blessings be
upon him, said: “Indeed, Allah, Blessed and Exalted, will say on the Day of
Resurrection: Where are those who loved one another for My majesty? Today I will
shade them in My shade, on a day when there is no shade but My shade.”
2 - Malik: from Abu Hazim ibn Dinar, from Abu Idris al-Khawlani, who said: I entered the
mosque of Damascus and saw a young man with radiant teeth, and the people were
with him; when they differed about something, they referred to him and accepted his
word. I asked about him and was told: This is Mu‘adh ibn Jabal. The next day, I went
early and found he had preceded me, and found him praying; I waited until he finished
his prayer, then approached him from the front, greeted him, and said: By Allah, I love
you for the sake of Allah. He said: Allah? I said: Allah. He said: Allah? I said: Allah. He
said: Allah? I said: Allah. So he grabbed the edge of my cloak and pulled me to him and
said: Rejoice, for I heard the Messenger of Allah, peace and blessings be upon him,
say: “Allah, Blessed and Exalted, said: My love is obligatory for those who love one
another for My sake, who sit together for My sake, who visit one another for My sake,
and who give to one another for My sake.”
I said: “Al-Hubwah,” with kasrah and dhammah, is the name of the act of sitting with the
knees drawn up.
[Al-Musawwa from the Hadiths of Al-Muwatta 2/456–457]
The father’s slave-woman whom he has had intercourse with
It is forbidden for a man to have intercourse with a slave-woman whom his father has
had intercourse with
1 - Malik: It reached him that Umar ibn al-Khattab gave his son a slave-girl and said: Do
not touch her, for I have uncovered her.
Prohibition of milk kinship
2 - Malik: from Abd al-Rahman ibn al-Mujbir, who said: Salim ibn Abdullah gave his son
a slave-girl and said: Do not approach her, for I have desired her but did not have
intercourse with her.
3 - Malik: from Yahya ibn Sa‘id that Abu Nahshal ibn al-Aswad said to al-Qasim ibn
Muhammad: I saw my slave-girl uncovered and sat with her as a man sits with his wife;
she said: I am menstruating, so I got up and did not approach her. May I give her to my
son so he may have intercourse with her? Al-Qasim forbade him from that.
4 - Malik: from Ibrahim ibn Abi Ablah, from Abd al-Malik ibn Marwan, that he gave a
companion a slave-girl, then asked about her, saying: I was about to give her to my son
to do such and such with her. Abd al-Malik said: Marwan was more scrupulous than
you; he gave his son a slave-girl, then said: Do not approach her, for I have seen her
leg uncovered.
I said: According to the scholars, intercourse by right of ownership establishes the
prohibition of marriage relations as with marriage itself. Al-Musawwa from the Rulings of
Al-Muwatta, vol. 2, p. 191
Prohibition of Breastfeeding (Radā‘)
1 – Sahnun ibn Sa‘id said: What is your view regarding a woman and her maternal aunt
through breastfeeding—may they be joined in marriage according to the opinion of
Malik? Ibn al-Qasim said: No.
Sahnun said: And are ownership, breastfeeding, and marriage equal in that the
prohibition (of marriage) is the same in all? He said: Yes.
2 – Sahnun ibn Sa‘id said: What is your view regarding the wife of one’s father through
breastfeeding or the wife of one’s son through breastfeeding—are they in terms of
prohibition like the wife of the father by lineage and the wife of the son by lineage
according to Malik? Ibn al-Qasim said: Yes.
3 – Ibn Wahb from Malik ibn Anas from ‘Abd Allah ibn Dinar from Sulayman ibn Yasar
from ‘Urwah ibn al-Zubayr from ‘A’isha, the wife of the Prophet, peace be upon him, that
she informed him that the Prophet, peace be upon him, said: “What is prohibited due to
breastfeeding is prohibited due to birth.”

Al-Tahlil from Ihram (Release from State of Pilgrimage)

Al-Mudawwana al-Kubra 2/290
Whoever throws the jamra (stone pillar) and shaves, everything becomes lawful to him
except women. There is disagreement regarding perfume.
1 – Malik: From Nafi‘ and ‘Abd Allah ibn Dinar from ‘Abd Allah ibn ‘Umar that ‘Umar ibn
al-Khattab addressed the people at ‘Arafah and taught them the matters of Hajj, and
said to them among what he said: “When you come to Mina, whoever throws the jamra,
everything forbidden to the pilgrim becomes lawful except women and perfume—let
none touch women nor perfume until he circumambulates the House.”
2 – Malik: From Nafi‘ and ‘Abd Allah ibn Dinar from ‘Abd Allah ibn ‘Umar, that ‘Umar ibn
al-Khattab said: “Whoever throws the jamra and shaves or shortens (his hair) and
slaughters a sacrificial animal, if he has one, everything forbidden to him becomes
lawful except women and perfume until he circumambulates the House.”
3 – Malik: From Yahya ibn Sa‘id and ‘Abd Allah ibn Abi Bakr and Rabi‘a ibn Abi ‘Abd al-
Rahman that al-Walid ibn ‘Abd al-Malik asked Salim ibn ‘Abd Allah and Kharija ibn Zayd
ibn Thabit, after he had stoned the jamra and shaved his head but before he had
performed the ifada circumambulation, about using perfume. Salim forbade him, and
Kharija ibn Zayd ibn Thabit permitted it.
I said: It is countered by the hadith of ‘A’isha: “I perfumed the Prophet, peace be upon
him, on the Day of Sacrifice before he circumambulated (the House),” so the majority
say: Everything becomes lawful to him except women.

Release from Ihram and Plucking the Hair or Cutting the Nails of the Muhrim (Pilgrim in
Ihram)
Al-Musawwa from the Hadith of Al-Muwatta 1/393–394
1 – Sahnun ibn Sa‘id said: Did Malik obligate the muhrim, when released from his
ihram, to trim his beard, mustache, and nails?
Ibn al-Qasim said: He did not obligate it, but he recommended that if one shaves, he
should teach and trim his mustache and beard. Malik mentioned that Ibn ‘Umar used to
do so.
2 – Malik said: Whoever plucks one or a few hairs, I consider that he must feed some
food (as expiation), whether he did so forgetfully or out of ignorance. If he plucks
enough hair to remove harm, then he must pay the fidya (penalty). Malik said: Whoever
cuts his nails forgetfully or out of ignorance must pay the fidya.
Sahnun ibn Sa‘id said to Ibn al-Qasim: What if he only clipped one nail? Ibn al-Qasim
said: I have not heard anything from Malik on this, but if he removed harm by it, he must
pay the fidya; if not, he should feed some food.
4 – Sahnun ibn Sa‘id said: What if he clipped the nails of one hand today while in ihram,
and then clipped the nails of the other hand the next day—does he owe one fidya or two
according to Malik?
He said: According to Malik, he owes two fidyas.
Sahnun ibn Sa‘id said: What is Malik’s opinion if a nail breaks?
He said: He may clip it and there is nothing upon him.
I said: What if his fingers develop sores and he needs to treat them, and he cannot do
so except by clipping his nails?
Ibn al-Qasim said: In this case, I consider that he must pay the fidya.

Al-Mudawwana al-Kubra 1/329–330

Permitting the Wife to Divorce Herself if She Wishes
1 – Sahnun ibn Sa‘id said: What if a man says to his wife, “You are divorced thrice if you
wish,” and she says, “I wish one (divorce)”?
Ibn al-Qasim said: No divorce takes effect upon her according to Malik, because Malik
said regarding a woman whom her husband gives the choice and she says, “I choose
one divorce”: That is nothing and no divorce takes place.
2 – Sahnun ibn Sa‘id said: What if he said to her, “You are divorced once if you wish,”
and she said, “I wish three”?
Ibn al-Qasim said: I see it as one divorce, because Malik said regarding a man who
gives his wife the authority over herself and she chooses three, and he says, “I only
intended one,” then it is one. The same applies to your question.
3 – Sahnun ibn Sa‘id said: What if he said to her, “You are divorced every time you
wish”?
Ibn al-Qasim said: Malik’s view is that she may choose again and again as long as he
has not had intercourse with her or she has not stopped (making the choice). If he has
intercourse with her or she has stopped, she may not choose after that. She may only
choose before intercourse.

Bearing and Giving Testimony

Al-Mudawwana al-Kubra 2/278
[See: Bearing and Giving Testimony]

Greeting the Mosque

Recommendation to Pray Two Rak‘ahs upon Entering the Mosque
1 – Malik: From ‘Amir ibn ‘Abd Allah ibn al-Zubayr from ‘Umar ibn Sulaym al-Zuraqi from
Abu Qatada al-Ansari that the Messenger of Allah, peace be upon him, said: “When one
of you enters the mosque, let him pray two rak‘ahs before he sits.”
2 – Malik: From Abu al-Nadr, the freedman of ‘Umar ibn ‘Ubayd Allah, from Abu Salama
ibn ‘Abd al-Rahman, who said to him: Did I not see your companion, when he entered
the mosque, sit before praying? Abu al-Nadr meant by this ‘Umar ibn ‘Ubayd Allah, and
criticized him for sitting when entering the mosque before praying. Malik said: That is
good, but not obligatory.
I (Yahya) said: And this is the view of the people of knowledge; with them, it is
recommended.

Al-Musawwa from the Hadith of Al-Muwatta 1/126

Stepping Over Necks on Friday
Prohibition of Stepping Over Necks on Friday
1 – Malik: From ‘Abd Allah ibn Abi Bakr ibn Hazm from someone who narrated from Abu
Hurayra, who used to say: “For one I said: This is the view of the majority of scholars.
Al-Muhalli, in his commentary on Al-Muhadhdhab, said: The one praying alone should
not recite the complete recommended recitation from the long and middle sections of Al-
Mufassal. In Al-‘Alamkiriyya, it is stated: He should not exceed the recommended
recitation nor burden the prayer with lengthy recitation, but should lighten it while
maintaining completeness and recommendation.
Al-Musawwa min Ahadith Al-Muwatta, vol. 1, p. 174
Choice in Divorce [See: Divorce and Delegation of Divorce…]
Giving the Wife the Choice and Empowering Her to Divorce Giving the Wife the Choice
and Empowering Her to Divorce
1 – Sahnun ibn Sa'id asked Abd al-Rahman ibn al-Qasim: What if a man says to his
wife, after consummation, “Choose yourself,” and she says, “I have chosen myself,” but
the husband disputes her choice? He said: Imam Malik said, his disputation does not
benefit him; it is three divorces.
2 – If he says to her, “Choose,” and she says, “I have accepted my affair,” and she
intended by that—He said: She is asked what she intended by divorce. If she says, “I
only intended one divorce,” then that divorce is not binding on the husband; if she
intended two, that is also not binding; but if she intended three, it is binding and the
husband cannot dispute her. In matters of choice and empowerment, what is
considered is what the husband said: If he said, “Choose,” this is choice (khiyar); if he
said, “Your affair is in your hand,” this is empowerment (tamlik). The woman is asked
about what she intended in both empowerment and choice as described. In choice, the
husband may dispute her; in empowerment, he may dispute her.
3 – Sahnun ibn Sa'id asked: What is the difference between empowerment (tamlik) and
choice (khiyar) according to Malik?
He said: Because in choice, she is given the option to remain with him or separate from
him, and by one divorce she does not become irrevocably separated. So when the one
divorce does not make her irrevocably separated, we know that if he gives her the
choice and intends her to separate, he only made that possible for her with three
(divorces).
As for empowerment, this does not give her the option to separate or remain; it only
gives her the right to divorce herself once, twice, or thrice, unless he disputes her, in
which case it is known that he did not give her the option, as he said with his oath, and
he retains authority over her. Do you not see that if he empowers her and she divorces
herself once, and the husband says, “I also intended one,” he retains authority over her.
In empowerment, he has given her the right to divorce herself in a manner in which the
husband retains the right of return (ruju‘); in choice, he has not given her the right to
divorce herself in a manner in which the husband retains the right of return. Do you not
see that if he disputes her in choice, he does not have that right?
Choice in Expiation of Oaths Al-Mudawwana al-Kubra 2/268
1 – Sahnun ibn Sa'id asked: What about one who breaks an oath by Allah? Is he given
a choice to feed, clothe, or free a slave according to Malik? Ibn al-Qasim said: Yes.
2 – Sahnun asked: If he cannot do any of these, does he fast? Ibn al-Qasim said: Yes.
3 – Sahnun asked: Is it permissible for him to fast while he is able to feed, clothe, or free
a slave? Ibn al-Qasim said: It is not sufficient for him to fast while he is able to do any of
these. Al-Mudawwana al-Kubra, vol. 2, p. 42
Giving the Wife the Choice Regarding Herself
If a man gives his wife the choice and she chooses him, or he gives her father the
choice and he chooses him, that is not divorce.
1 – Malik, from Abd al-Rahman ibn al-Qasim from his father from Aisha, Mother of the
Believers, that she arranged the marriage of Qareeba bint Abi Umayya to Abd al-
Rahman ibn Abi Bakr, and they married her. Then they reproached Abd al-Rahman and
said, “We only married because of Aisha.” So Aisha sent to Abd al-Rahman and
mentioned this to him, and he placed Qareeba’s affair in her own hand, and she chose
her husband, and that was not divorce.
Giving the Wife the Choice Regarding Herself
2 – Malik, from Abd al-Rahman ibn al-Qasim from his father from Aisha, wife of the
Prophet (peace be upon him), that she married Hafsa bint Abd al-Rahman to al-Mundhir
ibn al-Zubayr while Abd al-Rahman was absent in Syria. When Abd al-Rahman
returned, he said, “Is this done to someone like me? Is this decided without my
knowledge?” Aisha spoke to al-Mundhir ibn al-Zubayr, and he said, “This is in Abd al-
Rahman’s hand.” Abd al-Rahman said, “I would not reject a matter you have decided,”
so Hafsa remained with al-Mundhir, and that was not divorce.
3 – Malik: It reached him that Abdullah ibn Umar and Abu Huraira were asked about a
man who gives his wife authority over herself, and she returns the matter to him and
does not decide anything. They said: That is not divorce.
4 – Malik, from Yahya ibn Sa'id from Sa'id ibn al-Musayyib, who said: If a man gives his
wife authority over herself and she does not separate from him and remains with him,
that is not divorce.
5 – Malik, from Ibn Shihab, who heard him say: If a man gives his wife the choice and
she chooses him, that is not divorce.
I said: His statement “decided without his knowledge”—Abu Ubayd said: If a matter is
decided without someone, it has been given by fatwa, and this is derived from “fawt” (to
pass by), and this is the view of most scholars.
Al-Musawwa min Ahadith Al-Muwatta, vol. 2, pp. 146–147
Litigation in Rulings and Possession
If two men dispute ownership of something, there are three possible scenarios: Either
the claimed item is in the possession of both, or in the possession of neither—in both of
these cases, each is both claimant and defendant, as they are equal in claim; or it is in
the possession of one of them, who has acquired it to the exclusion of the other. The
one who possesses it is the defendant, as possession strengthens his claim, and the
other is the claimant, as he has nothing to strengthen his claim.
As for when both are claimants, each must prove ownership and its continuity up to the
time of dispute. Then, either one of them brings evidence, or both bring evidence, or
neither brings evidence. If one brings evidence, judgment is given for him after warning
the other; if both bring evidence, judgment is given for the one whose evidence is more
reliable. If the evidences are equal in reliability, it is divided between them after both
swear oaths. If neither has evidence, it is also divided between them after both swear
oaths.
Clarification: If we say it is divided between them, if their claims are equal in amount, the
division is equal—for example, if each claims the whole, it is divided half and half. If
their claims differ in quantity, whether in lesser or greater amount, the view of Malik is
that it is divided proportionally to the claims, following the method of inheritance shares.
The view of Ibn al-Qasim is that division is according to the claims, and the one claiming
more gets the extra portion conceded by the other in his claim of the lesser amount. For
example, if one claims all and the other claims half, according to Malik, it is divided into
two halves, as one claims two halves and the other one half, so it is divided into three
parts: the one claiming all gets two, and the one claiming half gets one. According to Ibn
al-Qasim, the one claiming all gets three-quarters and the one claiming half gets one-
quarter, because the one claiming half concedes the other half to the one claiming all,
so he gets it exclusively, and the disputed half is divided between them. This calculation
follows the number of claimants and the extent of the claims.
As for if it is in the possession of one of them, what is considered is whether he has held
it for the period of possession or less. If he has held it for the full period or more—which
is ten years among strangers, fifty among relatives, and some say forty with the
opponent present, aware, and silent—then the claim is not heard and no evidence is
accepted unless it is proven that the possessor holds it by way of lease, sharecropping,
Umrah (life grant), or something similar. If he has held it for less than the period of
possession, the claimant is required to provide evidence; if he does so, he is entitled to
it after swearing that he did not sell it, gift it, or relinquish ownership. If…
Takbīr on the two nights of the festivals and the Days of Tashrīq
361
I said: In mentioning the takbīr (festive declaration: "Allāhu akbar") following the fast of
Ramadan, there is an indication that it is recommended (mustaḥab) to frequently recite
the takbīr on the night and day of ʿĪd, and when going out to the prayer area. This has
been narrated from a group of Companions and Successors, and it is the opinion of the
scholars. According to Abū Ḥanīfa, it is not to be recited aloud for ʿĪd al‑Fiṭr, but rather
quietly, and when the person praying arrives at the prayer area, he stops.
From
[Al‑Musawwá min Aḥādīth al‑Muwaṭṭaʾ, vol. 1/219]
Takbīr on the two nights of the festivals and the Days of Tashrīq
It is recommended (mustaḥab) to frequently recite the takbīr on the night and day of ʿĪd
al‑Aḍḥá, and to recite the takbīr on the Day of Sacrifice and the Days of Tashrīq after
the prayers.
1 - Allah the Exalted said: "Their flesh and their blood will not reach Allah, but the taqwá
(piety) from you will reach Him. Thus has He subjected them to you, that you may
magnify Allah (takbīr) for what He has guided you to. So give glad tidings to the doers of
good." (Sūrat al‑Ḥajj, 37)
And He said: "And remember Allah during the appointed days." (Sūrat al‑Baqarah, 203)
2 - Mālik said: The practice among us is that the takbīr in the Days of Tashrīq is after
the prayers, and the beginning of this is the takbīr of the imam and the people with him
after the ẓuhr prayer on the Day of Sacrifice, and the end is the takbīr of the imam and
the people with him after the ṣubḥ prayer on the last of the Days of Tashrīq, then the
takbīr is discontinued. He said: The takbīr in the Days of Tashrīq is for men and women,
whether in congregation or alone, in Miná or in all lands; it is obligatory (wājib). The
people follow the imam of the ḥajj and the people with him, because when they return
and the iḥrām is finished, they follow them so that they are like them in being released
from iḥrām. As for one who is not a pilgrim, he only follows in the major Days of Tashrīq.
Mālik said: The "appointed days" are the Days of Tashrīq.
(Sūrat al‑Ḥajj, 37; Sūrat al‑Baqarah, 203)
361
Takbīrat al‑Iḥrām for one who joins late
I said: In mentioning the takbīr in clarifying the guidance, there is an indication of the
recommendation (istiḥbāb) of takbīr in these days; and it is not said that what is meant
is the takbīr at the time of slaughter, for that has been mentioned in His saying: "So
mention the name of Allah over them." (Sūrat al‑Ḥajj, 36)
What Mālik mentioned is the most famous of al‑Shāfiʿī's opinions. According to him,
takbīr is recited for supererogatory and missed prayers, and the individual and the
woman recite it. According to the Ḥanafīs, its conditions are: establishment (of prayer),
city, written (prescribed) prayer, congregation is recommended, and its beginning is
after the fajr prayer on the Day of ʿArafah, and its end according to Abū Ḥanīfa is after
the ʿaṣr prayer on the Day of Sacrifice, and according to his two companions: after the
ʿaṣr prayer on the last of the Days of Tashrīq, as in al‑ʿĀlamkīriyyah, and the fatwá and
practice in most lands and all times is according to the two companions, and this is also
an opinion of al‑Shāfiʿī. In al‑Minhāj, the practice is according to this, and its wording is:
"Allāhu akbar, Allāhu akbar, lā ilāha illā Allāh, wa-Allāhu akbar, Allāhu akbar wa-li-llāhi
al-ḥamd" ("Allah is greatest, Allah is greatest, there is no god but Allah, Allah is
greatest, Allah is greatest, and to Allah belongs all praise").
So recite the takbīr
[Al‑Musawwá min Aḥādīth al‑Muwaṭṭaʾ, vol. 1/224-225]
Takbīrat al‑Iḥrām for one who joins late
If one catches the imam in bowing and recites a single takbīr, it is valid.
1 - Mālik: From Ibn Shihāb, who used to say: If a man catches a rakʿah (unit of prayer)
with a single takbīr, that takbīr suffices for him.
Mālik said: That is if he intends with that takbīr the opening of the prayer. I said: In
al‑ʿĀlamkīriyyah: One who catches the imam in bowing does not need two takbīrs,
contrary to some. If he intends with that single takbīr the bowing and not the opening, it
is valid and his intention is disregarded in al‑Minhāj. He should recite takbīr for iḥrām,
then for bowing; if he intends both with one takbīr, the prayer does not become valid,
and it is said: it is valid for a supererogatory prayer; and if he does not intend anything
with it, it does not become valid according to the correct opinion, as al‑Muḥallī said. The
second opinion: it is valid for an obligatory prayer.
[Al‑Musawwá min Aḥādīth al‑Muwaṭṭaʾ, vol. 1/179]
(Sūrat al‑Ḥajj, 36)
Takbīrat al‑Iftitāḥ (Opening Takbīr of Prayer)
Takbīrat al‑Iftitāḥ (Opening Takbīr of Prayer)
363
1 - Mālik said regarding one who enters with the imam in his prayer and forgets the
opening takbīr: If he recites the takbīr for bowing, intending thereby the opening takbīr,
his prayer suffices; and if he did not intend the opening takbīr by the bowing takbīr, let
him continue with the imam until the imam finishes the prayer. He said: If he did not
recite the takbīr for bowing nor for opening with the imam until the imam completed a
rakʿah and he performed it with him, then he remembered the beginning of iḥrām while
now being inside the prayer, let him complete the rest of the prayer with the imam and
then make up a rakʿah after the imam finishes. Mālik said: If he enters with the imam,
forgets the opening takbīr, and recites the takbīr for bowing without intending it as the
opening takbīr, he continues in his prayer and does not interrupt it; when he finishes his
prayer with the imam, he repeats it. If he was alone, he interrupts it, and if he had
prayed one or two rakʿahs and then realized he did not recite the opening takbīr, he
also interrupts it. He said: This is only for one praying behind the imam, not one praying
alone.
2 - Mālik said: Whoever recites the opening takbīr behind the imam, his prayer is valid
except if he knew and recited it after the imam's takbīr; if he recited it after the imam's
takbīr, his prayer suffices. Ibn al‑Qāsim said: I asked Mālik: What about one who recites
the opening takbīr before the imam, then learns that the imam has recited it after him,
should he finish the prayer and recite it after the imam? Mālik said: No, but after the
imam and he does not finish the prayer.
[Al‑Mudawwana al‑Kubrá, 1/66-67]
Repeating ʿUmrah in one year
1 - Sahnūn asked Ibn al‑Qāsim: What about one who performed ʿUmrah outside the
months of ḥajj, why is he not allowed to perform another ʿUmrah after his ʿUmrah?
He said: Because Mālik used to say: ʿUmrah in a year is only once.
364
Declaring a Muslim to be a disbeliever is a major sin
2 - Mālik said: If he performs ʿUmrah, it is binding upon him.
3 - Sahnūn ibn Saʿīd asked Ibn al‑Qāsim: Is it binding upon him, according to Mālik, to
perform another ʿUmrah if he entered the first in the months of ḥajj or outside the
months of ḥajj?
He said: Yes.
Declaring a Muslim to be a disbeliever is a major sin
[Al‑Mudawwana al‑Kubrá, 1/301]
It is forbidden to address a Muslim as "O disbeliever"
Mālik: From ʿAbdullāh ibn Dīnār from ʿAbdullāh ibn ʿUmar, that the Messenger of Allah
(peace and blessings be upon him) said: "Whoever says to his brother 'disbeliever
(kāfir)', then one of them has returned with it."
I said: According to the scholars, his saying "has returned" means that one of them
returns with this statement, for if he is truthful, he returns with the evil of the kufr
mentioned about him, and if he is lying, he returns with the burden of this word as the
speaker.
[Al‑Musawwá min Aḥādīth al‑Muwaṭṭaʾ, vol. 2/401]
Shrouding (Kafan) of the deceased
It consists of two sections:
(Section One) The shroud is taken from the estate of the deceased; if he has no wealth,
then from the Bayt al‑Māl (public treasury) of the Muslims, and if not, then upon the
Muslims (community), and it is upon the master to shroud his slave. There is
disagreement regarding the obligation of a parent to shroud his child and vice versa,
and regarding the wife, there are three opinions: she is shrouded from her own wealth,
from her husband's wealth, from her own wealth if she is affluent, and from her
husband's wealth if she is poor.
(Section Two) Regarding its description: he is shrouded in permissible clothing, but as
for silk, there are three opinions: permissibility, prohibition, and restriction of
permissibility to women. It is recommended (mustaḥab) that it be white and an odd
number (of garments); the minimum is one garment and the maximum is seven, and
some say not less than three. Cotton is placed at the openings of the body: eyes,
nostrils, ears.
Camphor, musk, or other perfumes are placed at the places of prostration, the folds of
the body, and in the shrouds. The same is done for one in iḥrām as for one not in iḥrām.
Al‑Shāfiʿī said: His head is covered, and no perfume is brought near him.
Branch: If a pregnant woman dies and her fetus moves in her womb, there is
disagreement about whether her belly is to be opened and the fetus removed or not.
Speaking unintentionally in prayer
[Al‑Qawānīn al‑Fiqhiyya, 109]
The prayer is not invalidated by a word or two if it was a mistake, forgetfulness, or for
the benefit of the prayer. 1 – Mālik: From Dāwūd ibn al-Ḥuṣayn, from Abū Sufyān, the
freedman of Ibn Abī Aḥmad, who said: I heard Abū Hurayrah say: The Messenger of
Allah (may Allah bless him and grant him peace) prayed the ʿaṣr prayer and gave salām
after two rakʿahs. Dhū al-Yadayn stood up and said, “Was the prayer shortened, O
Messenger of Allah, or did you forget?” The Messenger of Allah (may Allah bless him
and grant him peace) said, “Neither of those occurred.” He said, “Rather, some of that
did occur, O Messenger of Allah.” So the Messenger of Allah turned to the people and
said, “Is Dhū al-Yadayn speaking the truth?” They said, “Yes.” So the Messenger of
Allah (may Allah bless him and grant him peace) stood up and completed what
remained of the prayer, then performed two prostrations (sujūd) after the salām while
sitting.
I said: The scholars differed regarding this ḥadīth. Abū Ḥanīfah said: The speech of one
who forgets invalidates the prayer, and this ḥadīth was before speech was prohibited,
then it was abrogated. There is discussion about this, because the prohibition of speech
was in Mecca, while this incident occurred in Madinah. Al-Shāfiʿī said: The speech of
one who forgets does not invalidate the prayer, but intentional speech does, even if it is
little. His interpretation of the ḥadīth is that the Prophet was forgetful, basing his words
on the assumption that the prayer was complete, which was forgetfulness, and Dhū al-
Yadayn’s words were based on the assumption that the prayer was shortened, so his
ruling is like that of the forgetful. The speech of the people was in response to the
Messenger, and responding to the Messenger (may Allah bless him and grant him
peace) does not invalidate the prayer. Mālik said: If intentional speech is minor and for
the correction of the prayer, it does not invalidate it, such as saying, “You did not
complete it,” and he replies, “I have completed it.” The ḥadīth, “We were prohibited from
speech and not to speak,” is an exception for this type of speech.
[Al-Musawwá from the Aḥādīth of al-Muwaṭṭaʾ, vol. 1, pp. 168-169]
Talbiyah in Ḥajj
When is the talbiyah discontinued?
1 – Mālik: From Muḥammad ibn Abī Bakr al-Thaqafī, who asked Anas ibn Mālik, while
they were both going from Miná to ʿArafah, “How would you act on a day like this with
the Messenger of Allah?” He said: Some of us would enter into talbiyah (ihlal), and none
would object; some would say takbīr, and none would object.
2 – Mālik: From Jaʿfar ibn Muḥammad, from his father, that ʿAlī ibn Abī Ṭālib would
continue reciting the talbiyah in ḥajj until the sun passed its zenith on the Day of
ʿArafah, then he would stop the talbiyah. Mālik said: This is the practice that the people
of knowledge in our land have always followed.
857 – Mālik: From ʿAbd al-Raḥmān ibn al-Qāsim, from his father, from ʿĀʾishah, the wife
of the Prophet, that she would stop the talbiyah when she set out for the standing (al-
mawqif) on the Day of ʿArafah.
3 – Mālik: From Yaḥyā ibn Saʿīd, that ʿUmar ibn ʿAbd al-ʿAzīz went to ʿArafah from
Miná and heard the takbīr loudly, so he sent the guards to call out to the people: “O
people, it is the talbiyah.”
Talbiyah for Ḥajj
4 – Mālik: From Nāfiʿ, that ʿAbdullāh ibn ʿUmar would discontinue the talbiyah in ḥajj
when he reached the ḥaram, until he performed ṭawāf of the House and between al-
Ṣafā and al-Marwah; then he would resume the talbiyah until he went out from Miná to
ʿArafah. When he went out, he would stop the talbiyah, and in ʿumrah, he would stop
the talbiyah when entering the ḥaram.
5 – Mālik: From Ibn Shihāb, who said: ʿAbdullāh ibn ʿUmar would not recite the talbiyah
while performing ṭawāf of the House.
6 – Mālik: With his chain (1) that ʿĀʾishah would enter into talbiyah (ihlal) as long as she
was in her house and those with her, but when she mounted and headed to the
standing (mawqif), she would discontinue the talbiyah. I said: Al-Baghawī said: The
majority of the scholars hold that the pilgrim continues the talbiyah until he throws the
Jamrat al-ʿAqabah, as narrated from al-Faḍl ibn ʿAbbās that the Prophet continued the
talbiyah until he threw the Jamrat al-ʿAqabah. The same is found in al-Wiqāyah, and in
al-Minhāj: The talbiyah is not recommended during the ṭawāf of arrival, and in the older
opinion, it is recommended but not aloud.
[Al-Musawwá from the Aḥādīth of al-Muwaṭṭaʾ, vol. 1, pp. 385-386]
Talbiyah for Ḥajj
1 – Mālik: From Nāfiʿ, from ʿAbdullāh ibn ʿUmar, that the talbiyah of the Messenger of
Allah (may Allah bless him and grant him peace) was: “Labbayka Allāhumma labbayk,
labbayka lā sharīka laka labbayk, inna al-ḥamda wa al-niʿmata laka wa al-mulk, lā
sharīka lak” (“Here I am, O Allah, here I am. Here I am, You have no partner, here I am.
Truly, all praise, grace, and sovereignty belong to You. You have no partner.”).
ʿAbdullāh ibn ʿUmar would add: “Labbayk, labbayk wa saʿdayk, wa al-khayr bayna
yadayk, labbayk wa al-raghbāʾ ilayk wa al-ʿamal” (“Here I am, here I am and at Your
service, all good is in Your hands, here I am, and all desire and action is to You”). I said:
The people of knowledge agree on this; they said: One should not omit from the talbiyah
of the Prophet, though it is recommended to add to it.
(1) This ḥadīth is reported by Mālik from ʿAlqamah, from his mother ʿĀʾishah, and the
author mentioned parts of it in the chapter on separating ḥajj and ʿumrah, and in the
chapter on the descent at Namirah. Allah knows best.
It is recommended to raise the voice with the talbiyah
Al-Shāfiʿī said: The talbiyah is sunnah, and there is nothing upon one who leaves it. Abū
Ḥanīfah said: It is obligatory, and whoever omits it must offer a sacrifice.
It is recommended to raise the voice with the talbiyah
2 – Mālik: From ʿAbdullāh ibn Abī Bakr ibn Ḥazm, from ʿAbd al-Malik ibn Abī Bakr ibn
ʿAbd al-Raḥmān ibn al-Ḥārith ibn Hishām, from Khallād ibn al-Anṣārī, from his father,
that the Messenger of Allah (may Allah bless him and grant him peace) said: “Jibrīl
(Gabriel) came to me and commanded me to order my companions, or those with me,
to raise their voices with the talbiyah.”
Mālik said: I heard some of the people of knowledge recommend the talbiyah after
every prayer and upon every elevation of the land.
3 – Mālik: He heard some of the people of knowledge say: Women are not required to
raise their voices in the talbiyah; rather, a woman recites so that she hears herself.
I said: This is the view of the people of knowledge as in al-Minhāj; it is recommended to
increase the talbiyah and to raise the voice during iḥrām, especially when the
circumstances change, such as mounting, dismounting, ascending, descending, mixing
with companions, and the same is found in al-ʿĀlamgīriyyah. Al-Maḥallī said: A woman
does not raise her voice, but suffices with making herself hear it; if she raises it, it is
disliked.
[Al-Musawwá from the Aḥādīth of al-Muwaṭṭaʾ, vol. 1, pp. 325-326]
Talbiyah of Women and Children
1 – Sahnūn ibn Saʿīd asked Ibn al-Qāsim: To what extent does the muḥrimah (woman
in iḥrām) raise her voice in the talbiyah according to Mālik? He said: To the extent that
she hears herself.
2 – Sahnūn asked Ibn al-Qāsim: What about a child who cannot speak, if his father
takes him for ḥajj? Does the father recite the talbiyah on his behalf at the beginning of
iḥrām, according to Mālik?
He said: No, but he undresses him (for iḥrām). Mālik said: He should not undress him
(for iḥrām) if he is very young, until he nears the ḥaram.
Mālik said: Children are of various types in this regard: among them is the older one
who has nearly reached puberty, and among them is the younger, seven or eight years
old, who does not avoid what should be avoided. Such a child is brought near the
ḥaram, then enters iḥrām. As for the one near puberty, he enters iḥrām from the mīqāt,
because he can avoid what he is commanded to avoid.
Mālik said: As for the small child who cannot speak, if his father undresses him
intending iḥrām, then he is in iḥrām, and he should avoid what the adult avoids.
He said: When they perform ṭawāf, no one should perform ṭawāf on behalf of another
unless he has performed his own obligatory ṭawāf, for this would combine two ṭawāfs in
one: the ṭawāf of the child and the ṭawāf of the one performing it.
4 – Sahnūn ibn Saʿīd asked Ibn al-Qāsim: What is the obligatory ṭawāf according to
Mālik? He said: The ṭawāf by which one proceeds to saʿy between al-Ṣafā and al-
Marwah.
5 – Ibn al-Qāsim said: We asked Mālik: What if one takes the child between al-Ṣafā and
al-Marwah, but does not perform the required saʿy between them? He said: The saʿy
between al-Ṣafā and al-Marwah in this case is lighter in my view than the ṭawāf of the
House, and it suffices if it is done, and there is no harm in it.
6 – Ibn al-Qāsim said: Mālik only disliked that one combines his own ṭawāf with that of
the child in the ṭawāf of the House because the ṭawāf of the House, in his view, is like
prayer, and no one may perform ṭawāf except in a state of wuḍūʾ. Saʿy between al-Ṣafā
and al-Marwah is not of the same status, as one may perform saʿy without wuḍūʾ.
7 – Ibn al-Qāsim said: Mālik said: No one may throw (the pebbles) on behalf of a child
unless he has thrown for himself first, and not for both himself and the child at the same
time. He must finish throwing for himself, then throw for the child. He said: This is the
same as with the ṭawāf of the House; it is not permitted until he throws for himself, then
for the child.
8 – Sahnūn ibn Saʿīd asked: Is the mother of the child in the same position as the
father? Ibn al-Qāsim said: Yes.
9 – Mālik said: The child who was lifted to the Prophet (may Allah bless him and grant
him peace) from the litter was lifted by a woman, who said: Is there ḥajj for this one?
The Prophet ‫ ﷺ‬said: “Yes, and for you is a reward.”
10 – Mālik said: And it was not mentioned that he had a parent with him. 11 – Ibn al-
Qāsim said: So if his mother puts the child into iḥrām in this narration, the iḥrām is valid.
Thus, I see that whoever has the child in their care, what is permitted for the mother is
permitted for them. 12 – Ibn al-Qāsim said: He was asked about boys and young
children who are put into iḥrām while wearing bracelets on their arms and anklets on
their legs. He said: There is no harm in that.
Talbiyah of the ‘Umrah Pilgrim
Al-Mudawwana al-Kubrā 1/298–299
When does the ‘Umrah pilgrim stop the talbiyah?
1 – Mālik: From Nāfiʿ, that ʿAbdullāh ibn ʿUmar used to stop the talbiyah in ‘Umrah
when entering the ḥaram (summary).
2 – Mālik: From Hishām ibn ʿUrwah from his father, that he would cease the talbiyah in
‘Umrah upon entering the ḥaram.
3 – Mālik: From Ibn Shihāb, who said: ʿAbdullāh ibn ʿUmar used to make talbiyah while
circumambulating the House.
I said in Sharḥ al-Sunnah: Ibn ʿAbbās said: The ‘Umrah pilgrim makes talbiyah until he
begins ṭawāf, and this is the view of most scholars.
Al-Musawwā from the ahādīth of al-Muwaṭṭaʾ 1/409
Covering the mouth in prayer (talathum in ṣalāt)
Disliked to pray with one's mouth covered
1 – Mālik: From ʿAbd al-Raḥmān ibn al-Mujabbar, that he saw Sālim ibn ʿAbdullāh,
when he saw someone covering his mouth while praying, would pull the cloth from his
mouth forcefully until he removed it.
Al-Khaṭṭābī said: It was the custom of the Arabs to cover their mouths with turbans.
They were prohibited from doing so in prayer.
Al-Musawwā from the ahādīth of al-Muwaṭṭaʾ 1/133
Loss of zakāt after its withdrawal
1 – Mālik said: Whoever withdraws the zakāt of his wealth to deliver it to its rightful
place, and it is lost from him: there is nothing upon him.
2 – Mālik said: What further clarifies this is that if he was unable to deliver it after
withdrawing it, and returned home to find his wealth had been stolen, the theft of his
wealth does not exempt him from what he had already withdrawn as zakāt to deliver.
Al-Mudawwana 2/372
Prompting the dying (talqīn al-mayyit)
Al-Mudawwana al-Kubrā 1/294
The dying person is prompted with lā ilāha illā Allāh (“There is no god but Allah”) and
supplication is made for him with goodness, and he should think well of Allah, so that
hope dominates at that moment. Regarding reciting Sūrat Yā Sīn or other passages,
there are two opinions: recommendation and dislike, likewise regarding turning him
toward the qiblah. When he passes, his eyes are closed and four rights become
obligatory: that he be washed, shrouded, prayed over, and buried. The book contains
five chapters.
Al-Qawānīn al-Fiqhiyya 107
Granting the wife authority over her divorce
1 – Ibn al-Qāsim said: I asked Mālik, “What if a man says to his wife, ‘Your affair is in
your hands,’ and she says, ‘I accept for myself,’ then afterward she says, ‘I only
intended one or two (divorces)?’” He said: Her statement is not accepted; if she says, ‘I
accept for myself,’ it is an irrevocable divorce unless the husband objects in that sitting,
and she becomes separated (bā’in) by it.
Granting divorce authority
Disliked private conversation (tanjī al-makrūh)
Al-Mudawwana al-Kubrā 2/279
[See: Divorce and granting authority…]
Two should not converse privately excluding a third
1 – Mālik: From Nāfiʿ, from ʿAbdullāh ibn ʿUmar, that if there are three people, two
should not converse privately excluding one.
The Messenger of Allah ‫ ﷺ‬said:
2 – Mālik: From ʿAbdullāh ibn Dīnār, “I was with ʿAbdullāh ibn ʿUmar in the house of
Khālid ibn ʿUqbah in the market; a man came wanting to speak to him privately (and
there was no one with ʿAbdullāh ibn ʿUmar except myself and the man who wanted to
speak). So ʿAbdullāh ibn ʿUmar called another man until we were four, then said to me
and the man he called: ‘Move aside, for I heard the Messenger of Allah ‫ ﷺ‬say: “Two
should not converse privately excluding one, for that saddens him.”’
I said: The scholars agree on this—the prohibition is a disciplinary prohibition.
Al-Musawwā from the ahādīth of al-Muwaṭṭaʾ 2/402
Glorifying Allah Most High (tanzīh Allāh taʿālā)
This is the meaning of our saying “Subḥān Allāh” (“Glory be to Allah”): that you believe
in Allah, that there is nothing like Him, nor is He like anything; nothing resembles Him.
Exalted is He from having any likeness, equal, counterpart, peer, or companion. He is
not in need of anything, while everything is in need of Him; He is free from deficiency
and fault, sanctified from all imperfection, and clear of all flaws. Drowsiness does not
overtake Him, nor sleep, nor any affliction; He is not affected by incapacity, fatigue, or
exhaustion. The obedience of the servants does not benefit Him, nor do sins harm Him.
He does not die nor perish, nor is He led astray or forgetful; in His dominion occurs only
what He wills—what He wills happens, and what He does not will does not happen. He
does not wrong anyone, His treasures are not diminished, nor does what is with Him
perish.
(Note): In the Qur’an and hadith there are expressions whose apparent meaning
suggests resemblance, such as His saying, “The Most Merciful established Himself over
the Throne” (al-Raḥmān ʿalā al-ʿarsh istawā), and “His hands are outstretched,” and the
hadith of Allah’s descent every night to the lowest heaven, and others—these are many.
People have divided into three groups regarding them:
(The first group) are the righteous predecessors (salaf ṣāliḥ) among the Companions,
Followers, and Imams of the Muslims—they believed in them and did not investigate
their meanings or interpret them, but rejected those who spoke about them. The firmly
grounded in knowledge say, “We believe in it; all is from our Lord.” This is the way of
safety, adopted by Mālik, al-Shāfiʿī, and most of the traditionists.
(The second group) are those who took them literally, resulting in anthropomorphism
(tajsīm), and this is attributed to the Hanbalis and some traditionists.
(The third group) are those who interpreted them, removing them from their literal
meanings and referring them to what reason dictates—these are the theologians
(mutakallimūn).
Supporting the captive under compulsion
Al-Qawānīn al-Fiqhiyya 23
1 – Sahnūn said: What do you say about a captive whom some kings of the people of
war or the people of war themselves compel to accept Christianity—does his wife
separate from him or not?
Ibn al-Qāsim said: Mālik told me: If the captive accepts Christianity knowingly and
willingly, he is separated from his wife; but if he was compelled, he is not separated
from his wife. If it is not known whether he accepted Christianity under compulsion or
willingly, he is separated from his wife, and his wealth in all cases is withheld until he
dies, then it is placed in the treasury of the Muslims, or he returns to Islam.
Al-Mudawwana 2/98–99
Humility in accepting the invitation of the poor
From the ethics of prophethood is accepting the invitation of a tailor and the like, out of
humility before Allah Most High
1 – Mālik: From Isḥāq ibn ʿAbdullāh ibn Abī Ṭalḥa, who heard Anas ibn Mālik say: A
tailor invited the Messenger of Allah ‫ ﷺ‬to a meal he had prepared for him; Anas said:
So the Messenger of Allah ‫ ﷺ‬went to that meal, and he was offered barley bread and
stew containing pumpkin. Anas said: I saw the Messenger of Allah ‫ ﷺ‬seeking out the
pumpkin from around the dish, so I loved pumpkin from that day onward.
Al-Musawwā from the ahādīth of al-Muwaṭṭaʾ 2/347
Repentance and its related matters
Repentance and its related matters
As for repentance (tawbah), its meaning is returning to Allah Most High. It is obligatory
(wājib) upon every accountable person at all times. It is the first station of the wayfarers,
and its obligations are three: regret for the sin because it was disobedience to the
Majestic, not because it harmed body or wealth; immediate cessation from the sin at the
first opportunity, without delay or procrastination; and resolve never to return to it again.
Whenever he lapses and returns, he renews his resolve. Its etiquettes are three:
confessing the sins before Allah Most High with humility; frequent seeking forgiveness;
and increasing good deeds to erase previous bad deeds. Its motivations are seven: fear
of punishment, hope for reward, shame from the reckoning... And love of the Beloved,
vigilance before the Watchful, the Near, veneration of the station, gratitude for
blessings. Its levels are seven: repentance of the disbelievers from polytheism;
repentance of the sincere from sins and major offenses; repentance of the upright from
minor sins; repentance of the wayfarers from what infiltrates the heart of defects and
corrupting maladies; repentance of the worshipers from lapses; repentance of the
people of scrupulousness from doubtful matters; and repentance of the people of
witnessing from heedlessness.
As for taqwā (God-consciousness), it is to do what Allah has commanded and to avoid
what He has prohibited. Its reward, as mentioned in the Noble Book, is ten things: the
guardianship of Allah Most High, His love, His support, forgiveness of sins, relief from
distress, provision from where one does not expect, discernment between truth and
falsehood, glad tidings in this world and the Hereafter, entry into Paradise, and salvation
from the Fire.
As for istiqāmah (steadfastness), it is to remain firm upon taqwā until death. It is only
attained after the pre-eternal decree and divine success, through striving against the
self with commitment and perseverance, then vigilance and self-accounting, then
disciplining and punishing the self. The sum of all good is in several things: that Allah is
obeyed and not disobeyed, that He is remembered and not forgotten, and that He is
thanked and not shown ingratitude.
Section: Repentance and its related matters
Sins requiring repentance are of two types: major (kabāʾir) and minor (ṣaghāʾir). Minor
sins are forgiven by avoiding major ones. There is much disagreement among people
regarding the distinction between them. The view closest to correctness is that major
sins are those explicitly designated as such in the texts, or for which a threat of
punishment is mentioned in the Qurʾān or in hadith. Some have said the major sins are
seventeen: four pertaining to the heart—polytheism, persistence in sin, feeling secure
from Allah’s punishment, and despairing of Allah’s mercy; four of the tongue—sorcery,
slander, false oaths, and perjury; three of the belly—drinking wine, consuming usury,
and consuming the wealth of orphans; two of the private parts—adultery and the act of
the people of Lūṭ; two of the hands—murder and wrongful seizure of wealth; one of the
feet—fleeing from battle; and one involving the whole body—disobedience to parents.
Issue: Dice (nards) are ḥarām (prohibited) by consensus. As for chess, if played for
gambling, it is ḥarām by consensus. If without gambling, it is makrūh (disliked)
according to al-Shāfiʿī; some say ḥarām following Abū Ḥanīfa; and some say it is
prohibited if one becomes addicted to it, or it distracts from prayer times or other
religious matters, or if played in a manner that undermines dignity, such as playing with
riffraff or in public, unlike other cases.
Sins are also divided into two categories: sins between Allah Most High and the
servant—if one repents from them with true repentance, Allah forgives them; and sins
between the servant and other people—in these, along with repentance, one must
redress the wronged and satisfy adversaries. These relate to four matters: blood,
bodies, wealth, and honor. They are also divided into two: commission of prohibitions
and neglect of obligations, and in the latter, one must make up and compensate for
what was missed.
On the Unity (Tawḥīd) of Allah Most High
[Al-Qawānīn al-Fiqhiyyah, pp. 456–458]
It is the essence of our statement "lā ilāha illā Allāh" (there is no god but Allah): that you
believe He is a single, unique God, self-sufficient, who has not taken a consort nor a
child, nor has He any partner in His judgment. He has no peer in His Lordship, no rival
in His dominion, no adversary, no supporter. The clear proof of His oneness is
understood from four verses: (First) His saying, "If there were in them (the heavens and
earth) gods besides Allah, they would have both been ruined" (al-Anbiyāʾ 21:22)—from
which the theologians derive the well-known proof, though the Qurʾān is more eloquent
and clear. (Second) His saying, "Say: If there were with Him other gods as you claim,
they would surely have sought a way to the Lord of the Throne" (al-Isrāʾ 17:42)—for the
absence of conflict is evidence of the absence of rivals. (Third) His saying, "Allah has
not taken any son, nor is there any god with Him; otherwise each god would have taken
away what he created, and some would have dominated others" (al-Muʾminūn 23:91)—
the interconnectedness of existence is proof that its owner is One. (Fourth) His saying,
"They have taken besides Allah gods who create nothing, while they themselves are
created" (al-Naḥl 16:20)—for one of Allah’s attributes is being the Creator, and none
creates except Allah; so there is no god but Allah, and all else is created; the created
cannot be a partner to its Creator. "Is He who creates like one who does not create?
Will you not then remember?" (al-Naḥl 16:17).
Supplement: The sects opposed to tawḥīd are the Christians, Magians, Sabians,
naturalists, and astrologers. As for the Christians, they disbelieved due to their corrupt
statements and misguided beliefs regarding ʿĪsā (Jesus) and his mother, peace be upon
them. The most comprehensive refutation of them is contained in five verses: (First) His
saying, "They both used to eat food" (al-Māʾidah 5:75)—a trait of contingency and
servitude, not divinity. (Second) His saying, "The likeness of ʿĪsā before Allah is as the
likeness of Ādam" (Āl ʿImrān 3:59)—He who could create a man without mother or
father can create another with a mother but without a father. (Third) His saying, "They
say: Allah has taken a son—Glory be to Him! He is the Self-Sufficient" (al-Baqarah
2:116)—the absolutely self-sufficient has no need of a spouse or child or anyone.
(Fourth) His saying, "It is not befitting for the Most Merciful that He should take a son.
There is none in the heavens and the earth but comes to the Most Merciful as a
servant" (Maryam 19:92–93)—servitude and divinity cannot coexist. (Fifth) The
statement of ʿĪsā, peace be upon him: "I am the servant of Allah," and his saying, "O
Children of Israel, worship Allah, my Lord and your Lord" (al-Māʾidah 5:72)—his
admission of servitude for himself exposes the falsehood of those who ascribe to him
lordship.
As for the Magians, they disbelieved by worshipping light; the refutation against them is
His saying, "He created darkness and light" (al-Anʿām 6:1)—that which is originated and
created cannot be a god. As for the Sabians, they disbelieved by worshipping angels
and attributing them to Allah; the refutation is His saying, "Rather, they are honored
servants" (al-Anbiyāʾ 21:26). As for astrologers, they ascribed influence in existence to
the stars; the refutation is His saying, "The sun and the moon and the stars are
subservient by His command" (al-Aʿrāf 6:96), and "Do not prostrate to the sun or the
moon, but prostrate to Allah who created them, if it is Him you worship" (Fuṣṣilat
41:37)—how can the created be a partner to its Creator? As for the naturalists, they
ascribed actions to nature; the refutation is His saying, "Fruits of diverse colors," and
"They are irrigated with one water, yet We make some of them exceed others in taste"
(al-Raʿd 13:4)—the difference in forms, colors, scents, tastes, benefits, and harms is
proof of a volitional Actor.
Sufi indication: Tawḥīd is of two types, general and particular. The general is the
absence of overt shirk (association), which is the station of faith common to all
believers. The particular is the absence of hidden shirk, which is the station of iḥsān
(spiritual excellence), and is exclusive to the saints and gnostics.
Agency of the guardian in marriage
[Al-Qawānīn al-Fiqhiyyah, pp. 21–22]
1. Sahnūn ibn Saʿīd said: What if a woman appoints a guardian to marry her to a
man, and the agent says, "I have married you," and the groom also claims the
agent married him, but the woman denies it, saying, "He did not marry me," while
she admits to the agency? Ibn al-Qāsim said: If she admits to the agency, the
marriage is binding upon her.
[Al-Mudawwana al-Kubrā, 2/157]
Tayammum (Dry Ablution)
379
Tayammum
It comprises four sections: Chapter One: On the Conditions Permitting Tayammum
There are, in general, two conditions: absence of water, or inability to use it. In detail:
absence of water during travel and illness is agreed upon, and in residence (ḥaḍar)
without illness, there is disagreement (with Abū Ḥanīfa). If one finds some water
insufficient for purification, there is disagreement (with al‑Shāfiʿī). Also included is the
absence of means to reach the water, such as a bucket or rope; fear of thirst for oneself
or another person or animal; fear of thieves or wild beasts if one goes out to seek water;
if the price of water is exorbitant to the point of hardship; fear of missing the prayer time
if one seeks, waits for, or uses water (disagreement with al‑Shāfiʿī); fear of death,
illness, or worsening of illness, or delay in recovery for a sick person who cannot find
someone to bring water, or when wounds or sores cover most of the body of someone
in a state of major ritual impurity (junub) or most of the limbs required for wuḍūʾ.
Chapter Two: The Obligatory Acts (Farāʾiḍ) of Tayammum
Performing tayammum after the entry of the prayer time and after seeking water
(disagreement with Abū Ḥanīfa on both points); intention (niyyah) according to all four
schools; wiping the face and hands, by consensus; immediacy (doing it without delay),
which is disagreed upon. The "earth" (ṣaʿīd) is soil, but tayammum is permitted with
anything from the earth, such as stone, pebbles, sand, or gypsum (disagreement with
al‑Shāfiʿī).
Its recommended acts (sunan): beginning with the face before the hands, renewing a
strike for the hands, wiping the hands up to the elbows (some say this is obligatory,
agreeing with al‑Shāfiʿī and others).
Its virtuous acts (faḍāʾil): starting with the right hand, saying the basmalah at the
beginning. The method of wiping the arms: pass the left hand over the right from the top
of the palm to the elbow, then from the inside of the elbow to the wrist, and likewise for
the left with the right. Any method suffices if it covers the area.
Chapter Three: Tayammum substitutes for wuḍūʾ and for ghusl from janābah,
menstruation, and postnatal bleeding. However, the husband of a menstruating woman
may not have intercourse until she bathes with water, according to the most well‑known
opinion. Tayammum is invalidated by the things which invalidate wuḍūʾ and ghusl, and
also by the presence of water before prayer, by consensus. It is not invalidated after
entering prayer (disagreement with Abū Ḥanīfa and Ibn Ḥanbal), nor after completing
it—there is consensus that one does not repeat the prayer.
By tayammum, whatever is permitted by purification with water is permitted. One may
not combine two obligatory prayers with a single tayammum (disagreement with Abū
Ḥanīfa), but may combine supererogatory prayers, or an obligatory and a
supererogatory prayer if the obligatory is performed first. Al‑Shāfiʿī says one may offer
supererogatory prayers before and after the obligatory prayer.
Al‑Qawānīn al‑Fiqhiyya, pp. 52‑53
Tayammum
1.
Imām Mālik said: Tayammum for janābah and for wuḍūʾ are the same.
Tayammum is one strike for the face and one strike for the hands. One strikes
the earth with both hands together. If anything clings to them, one shakes it off
lightly, then wipes the face with them, then strikes again for the hands, beginning
 with the left over the right, passing it from the top of the palm to the elbow, and
from the inside of the elbow to the palm, and likewise the right over the left.
2.
Mālik said: The traveler, the sick, and the fearful should not perform tayammum
except in the middle of the prayer time. If they perform tayammum and pray, then
find water within the time: the traveler does not repeat the prayer, but the sick
and the fearful who know the location of water but fear they may not reach it
should repeat the prayer if they are able to obtain water during the time.
3.
ʿAṭāʾ ibn Yasār narrated: Two men had a wet dream during the time of the
Messenger of Allah (peace be upon him) while traveling. They sought water but
did not find it, so they performed tayammum and prayed. Then they found water
before sunrise, so they performed ghusl. One of them repeated the prayer, the
other did not. They mentioned this to the Messenger of Allah (peace be upon
him), who said to the one who repeated: "You have double the reward," and to
the other: "Your prayer is complete."
Tayammum
4. Mālik said: For those afflicted with smallpox or the plague, if they fear for
themselves and are in a state of janābah, they perform tayammum for every
prayer, whether they invalidate it or not; they perform tayammum for janābah and
do not perform ghusl.
For someone whose wounds cover most of his body, Mālik said: He is like one afflicted
with smallpox or the plague, if water cannot touch his body, he performs tayammum and
prays. If part of his body is healthy and the majority is wounded, he washes what is
healthy and wipes over the wounds if able; otherwise, he wipes over the bandages.
5.
Mālik said: If a person in a state of janābah fears death from cold or snow or
similar, tayammum suffices.
6.
Zayd ibn Abī Anīsah al‑Jazrī said: A man from the Muslims at the battle of
Khaybar was afflicted with smallpox and janābah, and his companions washed
him, causing his flesh to fall apart, and he died. This was mentioned to the
Messenger of Allah (peace be upon him), who said: "They killed him, may Allah
kill them! Was it not enough for them to perform tayammum with earth?"
Ibn al‑Qāsim said: Mālik was asked about pebbles—may one perform tayammum with
them if he finds no clay? He said: Yes. Mālik was asked about a man on a mountain
who cannot find clay—may he perform tayammum with it? He said: Yes. Mālik also said
about mud—if a man cannot find soil, he may perform tayammum with it. How should
he do so? He places his hands on the mud and removes as much as possible, then
performs tayammum.
Al‑Mudawwana 1/46–49
Tayammum and Its Rulings
The Reason for the Revelation of Tayammum
1. Mālik: From ʿAbd al‑Raḥmān ibn al‑Qāsim from his father from ʿĀʾishah, Mother
of the Believers, who said: We went out with the Messenger of Allah (peace be
upon him) on one of his journeys, until we were at al‑Baydāʾ—or Dhāt al‑Jaysh—
 when my necklace broke, so the Messenger of Allah (peace be upon him) stayed
to look for it, and the people stayed with him, and they were not at water, nor did
they have any water. The people came to Abū Bakr al‑Ṣiddīq and said: "Do you
not see what ʿĀʾishah has done? She has detained the Messenger of Allah and
the people, and they are not at water, nor do they have any water." ʿĀʾishah said:
Abū Bakr came, and the Messenger of Allah was lying with his head on my thigh,
asleep. He said: "You have detained the Messenger of Allah and the people, and
they are not at water, nor do they have any water." ʿĀʾishah said: Abū Bakr
reproached me, poking me in my side, and nothing prevented me from moving
except the position of the Messenger of Allah's head on my thigh. The
Messenger of Allah slept until morning without water, so Allah revealed the verse
of tayammum. Usayd ibn al‑Ḥuḍayr said: "This is not the first of your blessings, O
family of Abū Bakr." ʿĀʾishah said: We sent for the camel I was riding, and found
the necklace beneath it.
Description of Tayammum
2.
Mālik: From Nāfiʿ that ʿAbd Allāh ibn ʿUmar used to perform tayammum up to the
elbows.
3.
Yaḥyā said: Mālik was asked: How is tayammum performed, and to what extent?
He replied: One strike for the face and one strike for the hands, and they are
wiped up to the elbows.
4.
I said: Al‑Shāfiʿī and Abū Ḥanīfa both said: Tayammum is two strikes—one for
the face and one for the hands up to the elbows.
If one does not find water in residence, he performs tayammum and prays
5.
Mālik: From Nāfiʿ that he and ʿAbd Allāh ibn ʿUmar came from al‑Jurf, and when
they reached al‑Marbad, ʿAbd Allāh stopped and performed tayammum with pure
earth, wiping his face and hands up to the elbows, then prayed.
6.
I said: Most scholars hold that tayammum is permitted due to lack of water in
residence, if not in a settled area.
If the one who performs tayammum finds water, he does not repeat the prayer he
performed with tayammum
9.
Yaḥyā said: Mālik was asked about a man who performed tayammum for a
prayer that became due, then another prayer became due—should he perform
tayammum again, or is his first tayammum sufficient? He replied: Rather, he
should perform tayammum for each prayer, because he must seek water for
each prayer; whoever seeks water and does not find it, performs tayammum.
10.
I said: Al‑Shāfiʿī said: If one performs tayammum for an obligatory prayer, he
may pray it and any supererogatory prayers with that tayammum, but must
perform a new tayammum for any other obligatory prayer. Abū Ḥanīfa said: His
 tayammum suffices unless he invalidates it or finds water. Whoever performs
tayammum and then finds water while in prayer does not break it
11 – Yahya said: Malik said regarding a man who performed tayammum (dry ablution)
when he did not find water, then stood, said the takbīr (Allāhu akbar), and entered
prayer, and then someone appeared with water: He does not break his prayer, but
rather completes it with tayammum, and should perform wudūʾ (ablution) for
subsequent prayers.
12 – Yahya said: Malik also said: Whoever stands for prayer and does not find water,
and acts according to what Allah has commanded him of tayammum, has obeyed Allah,
Mighty and Majestic. The one who finds water is not purer nor is his prayer more
complete, for both have been commanded (with their respective rulings), and each
acted according to what Allah, Mighty and Majestic, commanded him. The action of
wudūʾ is for the one who finds water, and tayammum is for the one who does not find
water before entering prayer.
I said: Al-Shāfiʿī said: If someone performing tayammum finds water during prayer, he
completes it. Abū Ḥanīfa said: He must start the prayer anew with wudūʾ.
[Al-Musawwa from the ḥadīths of the Muwaṭṭaʾ, vol. 1, pp. 99–101]
Tayammum with clay
1 – Ibn al-Qāsim said: If there is no water, he performs tayammum and dries his hands.
2 – Malik said: He only places his hands lightly or performs tayammum.
3 – Malik said regarding a man who performed tayammum and entered prayer, then
someone appeared with water: He continues his prayer and does not break it. But if the
water was in his own baggage, he breaks his prayer, performs wudūʾ, and repeats the
prayer. He also said: If he finishes his prayer and then remembers that the water was in
his baggage but forgot or was unaware, he repeats the prayer within the time.
4 – Ibn al-Qāsim said: I asked Malik about someone in a state of janābah (major ritual
impurity) who cannot find water except by purchasing it. He said: If the cost is small, I
see that he should perform tayammum; but if he is able and the price is not excessive, I
see that he should buy it. If the price is raised against him, he performs tayammum and
prays. Malik also said regarding someone who has water but fears thirst if he uses it for
wudūʾ: He should perform tayammum and keep his water.
5 – What do you say about someone in a state of janābah who slept after performing
tayammum, or had a minor impurity after that, and has with him enough water for
wudūʾ: should he perform wudūʾ with it or tayammum? Malik said: He performs
tayammum and does not use the water for wudūʾ, except that he may use it to wash
away filth that has affected him. As for wudūʾ, I do not consider it obligatory for
someone in janābah if he only has enough water for wudūʾ.
6 – Malik said regarding a man who performed tayammum while in janābah and has
with him enough water for wudūʾ: Tayammum suffices him and he does not perform
wudūʾ. Ibn al-Qāsim said: If he becomes impure again and wishes to offer a
supererogatory prayer, then let him perform tayammum and not wudūʾ.
Tayammum with clay
Malik saw no harm in someone who does not find water while traveling to touch the
muṣḥaf (written Qurʾān) and recite his portion.
7 – Malik said regarding someone who performed tayammum for an obligatory prayer,
then prayed two units of supererogatory prayer before the obligatory: Let him repeat the
tayammum, for when he prayed the supererogatory prayer before the obligatory, his
tayammum for the obligatory was invalidated, so he must perform tayammum for the
obligatory prayer.
[Al-Mudawwana 1/50–51]
Letter Thāʾ ((‫ث‬
Fruits and their sale: see “Sale of fruits and crops.”
Clothing
1 – Ibn al-Qāsim said: I heard Malik asked about blood or filth on a garment in which
someone prayed, then he learned of it after the sun had yellowed (i.e., late afternoon).
He said: If he does not remember until after the sun has yellowed, there is no need to
repeat (the prayer). Malik set the time for someone who prayed with filth on his garment
until the sun yellows, and distinguished it from someone who finishes prayer before
sunset, or the insane who regains sanity before sunset, or the menstruating woman who
becomes pure before sunset. He used to say: The whole day until sunset is the time for
these, but for one who prayed with filth on his garment, the time is until the sun
yellows—this alone Malik set until the sun yellows. The same applies to one who prayed
not facing the qiblah. Sahnūn ibn Saʿīd said: If the filth is on the body, Ibn al-Qāsim
said: I heard Malik say that filth on the body and on the garment are the same. Malik
said: He repeats (the prayer) as long as it is within the time. Rabīʿah and Ibn Shihāb
said likewise. Ibn al-Qāsim said: Malik said: Whoever prays on a filthy place must
repeat as long as it is within the time, just like one who prayed with filth on his garment.
2 – Malik said: Whoever has only one garment, and it is impure, prays in it; and if he
acquires another garment or finds water to wash it, he repeats (the prayer) as long as it
is within the time. If the time has passed, he does not repeat. Sahnūn ibn Saʿīd said: If
he has a silk garment and an impure garment, which should he pray in? Ibn al-Qāsim
said: He should pray in the silk, which I prefer, and repeat if he finds another garment
within the time. It has also reached me from Malik that he said this, for the Messenger of
Allah (peace and blessings be upon him) forbade wearing silk.
[Al-Mudawwana al-Kubrā 1/38–39]
A woman’s garment in prayer
The minimum that suffices for a woman to pray in
1 – Malik, from Muhammad ibn Zayd ibn Qunfudh, from his mother, who asked Umm
Salamah, the wife of the Prophet (peace and blessings be upon him): In what garments
may a woman pray? She said: She may pray in a khimār (headcover) and a long
flowing dress (dirʿ sābigh) that covers the tops of her feet.
2 – Malik: It reached him that ʿĀʾishah, wife of the Prophet (peace and blessings be
upon him), used to pray in a dress and a khimār.
3 – Malik, from a trustworthy source, from Bukayr ibn ʿAbd Allah ibn al-Ashajj, from
Basar ibn Saʿīd, from ʿUbayd Allah al-Khawlānī, who was in the care of Maymūnah, the
wife of the Prophet (peace and blessings be upon him): Maymūnah used to pray in a
dress and a khimār, not wearing an izār (lower wrap).
4 – Malik, from Hishām ibn ʿUrwah, from his father: A woman sought his legal opinion
and said: The belt is difficult for me—may I pray in a dress and a khimār? He said: Yes,
if the dress is long.
I said: And upon this are the scholars: that a free woman must cover her entire body in
prayer except the face and hands. It is said: If the tops of her feet are uncovered, her
prayer is valid. It is said in al-Hidāyah that this is the soundest (opinion). Al-Shāfiʿī said:
If anything besides the face and hands is exposed, she must repeat (the prayer). Abū
Ḥanīfa said: If less than a quarter of a limb is exposed, she does not repeat.
[Al-Musawwa from the ḥadīths of the Muwaṭṭaʾ, 1/132]
Colored garments for prayer
Disliked to pray in a garment that distracts the worshipper with its beauty
1 – Malik, from ʿAlqamah ibn Abī ʿAlqamah, that ʿĀʾishah, wife of the Prophet (peace
and blessings be upon him), said: Abū Jahl ibn Ḥudhāfah al-Lakhmī gifted the
Messenger of Allah (peace and blessings be upon him) a Shāmī cloak with designs. He
prayed in it, then when he finished he said: “Return this cloak to Abū Jahl, for I looked at
its designs in prayer and it almost distracted me.”
2 – Malik, from Hishām ibn ʿUrwah, from his father, that the Messenger of Allah (peace
and blessings be upon him) wore a Shāmī cloak with designs, then gave it to Abū Jahl
and took from him an anbijāniyyah (plain woolen cloth). He was asked: “O Messenger of
Allah, why?” He said: “I looked at its designs in prayer.” (The khamīṣah is a garment of
silk or wool with designs; the anbijāniyyah, with a kasrah on the bāʾ, is a cloak from
Manbij, a city, and is pronounced with a kasrah.)
A single garment in prayer
1 – Malik, from Ibn Shihāb, from Saʿīd ibn al-Musayyib, from Abū Hurayrah, that a man
asked the Messenger of Allah (peace and blessings be upon him) about praying in a
single garment. The Messenger of Allah (peace and blessings be upon him) said: “Does
everyone have two garments?”
2 – Malik, from Hishām ibn ʿUrwah, from his father, from ʿUmar ibn Abī Salamah, that
he saw the Messenger of Allah (peace and blessings be upon him) praying in a single
garment, wrapped in it in the house of Umm Salamah, placing its ends on his shoulders.
3 – Malik, from Ibn Shihāb, from Saʿīd ibn al-Musayyib, that Abū Hurayrah was asked:
“May a man pray in a single garment?” He said: “Yes.” He was asked: “Do you do that?”
He said: “Yes, I pray in a single garment, though my clothes are hanging on the rack.”
4 – Malik: It reached him that Jābir ibn ʿAbd Allāh used to pray in a single garment, tying
it around himself with a belt. 5 – Mālik: From Rabīʿah ibn Abī ʿAbd al‑Raḥmān, that
Muḥammad ibn ʿAmr ibn... used to perform ṣalāt (prayer) in a single shirt.
I said: The “mishjab” is a rack with joined ends, upon which garments are placed.
How does one pray in a single garment?
6 – Mālik: It reached him from Jābir ibn ʿAbd Allāh that the Messenger of Allah (ṣallā
Allāhu ʿalayhi wa sallam) said:
“Whoever does not find two garments, let him pray in one garment, wrapping himself in
it (multahifan bihi); and if the garment is short, let him tie it around his waist (yaitazir
bihi).”
I said: By “wrapping” (iltihāf), he intended covering oneself by crossing its ends over
both shoulders.
[al‑Musawwá min Aḥādīth al‑Muwaṭṭaʾ, vol. 1, pp. 131–132]
Beautiful garments are among the blessings of Allah Most High.
Recommendation that the effects of Allah’s blessing be apparent on a man, and the
recommendation of patching clothes and humility.
1 – Mālik: From Zayd ibn Aslam, from Jābir ibn ʿAbd Allāh al‑Anṣārī, who said:
We went out with the Messenger of Allah (ṣallā Allāhu ʿalayhi wa sallam) in the
expedition of Banī Anmār. Jābir said: While I was resting under a tree, the Messenger of
Allah (ṣallā Allāhu ʿalayhi wa sallam) came. I said, “O Messenger of Allah, come to the
shade.” So the Messenger of Allah descended, and I went to our bag and searched in
it...
He said: That is, he rested during the midday nap.
Beautiful garments are among the blessings of Allah Most High.
I found in it cheese and cucumber, so I broke it and brought it to the Messenger of Allah
(ṣallā Allāhu ʿalayhi wa sallam). He asked, “Where did you get this?” I said, “We brought
it from Madinah, O Messenger of Allah.” Jābir said: We had a companion whom we
prepared to go and graze our riding animals. I prepared him, and he went out to the
livestock, wearing two worn-out cloaks. The Messenger of Allah (ṣallā Allāhu ʿalayhi wa
sallam) looked at him and said, “Does he not have two other garments besides these?” I
said, “Yes, O Messenger of Allah, two garments in the case; I will clothe him in them.”
He said, “Call him and order him to wear them.” So I called him, and he wore them, then
went away. The Messenger of Allah (ṣallā Allāhu ʿalayhi wa sallam) said, “What is
wrong with him, may Allah strike his neck! Is this not better?” The man heard and said,
“O Messenger of Allah, for the sake of Allah!” The Messenger of Allah (ṣallā Allāhu
ʿalayhi wa sallam) said, “For the sake of Allah.” The man was then killed in the way of
Allah.
2 – Mālik: From Ayyūb ibn Abī Tamīmah al‑Sakhtiyānī, from Ibn Sīrīn, who said: ʿUmar
ibn al‑Khaṭṭāb said:
“When Allah expands for you, expand for yourselves.” A man gathered his garments
upon himself.
3 – Mālik: From Isḥāq ibn ʿAbd Allāh ibn Abī Ṭalḥah, who said: Anas ibn Mālik said:
I saw ʿUmar ibn al‑Khaṭṭāb, who was then Commander of the Believers, and he had
patched between his shoulders three patches, one over another.
I said in al‑Anwār: It is disliked to wear coarse clothing without a valid religious purpose.
I say: The way to reconcile the narrations is to refer to two different situations: If one
chooses dirty or coarse clothing out of miserliness, or so that people see him as
content, that is prohibited. If it is out of necessity, or to teach others asceticism and
contentment, or to discipline oneself against pride and arrogance, then that is
praiseworthy.
Wearing white garments.
Wearing white garments
4 – Mālik: It reached him that ʿUmar ibn al‑Khaṭṭāb said:
“I love to see the reciter in white garments.”
I said: The scholars hold that white is the best color for garments and recommend
cleanliness.
[al‑Musawwá min Aḥādīth al‑Muwaṭṭaʾ, vol. 2, pp. 360–362]
Dyed garments
1 – Mālik: From Nāfiʿ, that ʿAbd Allāh ibn ʿUmar used to wear garments dyed with
madder and garments dyed with saffron.
2 – Mālik said: Regarding safflower‑dyed cloaks for men in their homes:
I do not know anything of that to be ḥarām (prohibited), but other types of clothing are
preferable to me.
I said: This is rebutted by what the ḥuffāẓ (hadith masters) narrated from the hadith of
ʿAbd Allāh ibn ʿAmr: The Messenger of Allah (ṣallā Allāhu ʿalayhi wa sallam) saw him
wearing a garment dyed with safflower and said, “What is this garment on you?”
Realizing what was disliked, he went to his family, who were stoking the oven, and
threw it in. Then he informed the Prophet, who said, “Why did you not clothe one of your
womenfolk with it? There is no harm in it for women.” Al‑Shāfiʿī narrated from Anas that
the Prophet prohibited men from wearing saffron. Most scholars hold that it is prohibited
for men to wear saffron‑dyed and safflower‑dyed garments, but not prohibited for
women, nor disliked for men and women to wear garments dyed with madder and
similar. Al‑Baghawī said: The prohibition of saffron for men applies to a large amount; a
small amount is permitted for the married, as in the hadith about ʿAbd al‑Raḥmān ibn
ʿAwf, whom the Prophet saw with traces of saffron and did not object.
[al‑Musawwá min Aḥādīth al‑Muwaṭṭaʾ, vol. 2, pp. 362–363]
Volume Two.
Index
Note: The topic you want is on the page before its numbered page in the index.
The emergence of the Mālikī school
Imām Mālik’s methodology in deriving rulings
Mālik’s assistants in spreading his school
Soundness of the doctrine of Ahl al‑Madīnah
Islamic etiquette: etiquette of eating and drinking
Etiquette of entering the bathroom
Etiquette of clothing
The son and his inheritance
Hiring a wet nurse for breastfeeding
A Muslim hiring himself out to a Christian, the hired worker travels with him
Hiring out the muṣḥaf (Qurʾān) and its sale
Hiring a teacher and the teacher of crafts
Permission for the stallion to descend
Permission for the guardian himself over his orphan
Payment of wages and their advance
Wages of the harvester, half of what he harvests
Payment of wages and withholding what was last done
Biography of Abū Bakr al‑Ṣiddīq (raḍiya Allāhu ʿanhu)
Responding to the call of the muʾadhdhin (caller to prayer)
Hiring and its pillars
Hiring the worker for produce
Hiring a well
Hiring garments and jewelry
Wages of the unauthorized agent
Wages on sale, the worker is liable if he exceeds
Wages of the agent in litigation
The worker serves two or more men
Hiring for carrying wine for a Christian and grazing pigs
Sitting cross‑legged during the sermon
Nocturnal emission
If he sees nocturnal emission on his garment and does not recall anything, what should
he do
A minor hiring himself without his guardian’s permission
Referral to the debtor
Hiring and the liability of the lessee
Hiring for disposing of impurities
Iḥrām from Dhū al‑Ḥulayfah
Hiring and renting and their invalidity
Kindness to animals
Prevention of the pilgrim by illness or enemy
Captives of the unbelievers
Prevention in ḥajj and ʿumrah
Reviving dead land
Disagreement in renting
End of times
The mute and divorce of the mute
Sincerity is the basis of acceptance of obedience and worship
Blameworthy character traits
Catching a rakʿah on Friday
Catching rukūʿ with the imām
Catching the ṣalāh
The adhān
Adhān and iqāmah
Adhān of Fajr
Virtue of the adhān
Raising the voice in the adhān
Adhān of the solitary person
Lands and their rulings
Inheritance, admission, denial, and reconciliation
Seeking rain
Inhalation and exhalation
Facing the qiblah in prayer
Facing the qiblah for relieving oneself
Enjoyment with the wife
Names of the Prophet (ṣallā Allāhu ʿalayhi wa sallam)
Purification after relieving oneself
Pointing with the index finger in tashahhud
Gesturing in prayer
Purchase
Uḍḥiyah (sacrificial animal)
Uḍḥiyah
No sacrifice for the fetus
Sacrifice is valid on the Day of Naḥr and two days after
Rulings of uḍḥiyah before slaughter
Necessity and its conditions
Feeding in expiation for ẓihār
Foods
Tranquility in prayer
Patchwork in prayer
Seeking permission
Holding to the Qurʾān and Sunnah
Holding to the Book and Sunnah and leaving innovation
Seeking permission three times; if permitted, enter, otherwise return Repeating the
prayer behind another Imam
153
154
156
Iʿtikāf until the end of the month of Ramadan 157
Friday for departure. 124 days
Muslim captives
Exception in oaths
•
Seeking protection from a polytheist.
124
126
128
⭑
 Appointing a deputy for the preacher on Friday 129
129 129
Iʿtikāf
Iʿtikāf in the mosques
There is no iʿtikāf except with fasting
Iʿtikāf and making it up
158
159
160
16161
398
Ghusl (ritual bathing)
Obligations of ghusl
171
163
Prohibited marriages
People of fitnah (sedition)
Financial difficulty in providing for the wife. 166
End times of prayer
Fainting in the option of sale
Reciting the opening with the Imam’s recitation
Invalidating the Hajj
Breaking the fast and its consequences.
Relatives and their rights
Annulment in musāqāh (sharecropping)
 167
168
169
169
172
173
203
210
210
212
•
Daily litanies
Times when prayer is disliked. 212
Times of the prayers
Children of the Prophet
Īlāʾ (oath of abstention)
14
222
 223
Īlāʾ of the husband from his wife
225
The believer’s food is blessed
Following an individual without knowing 174
Oaths: their types, formulas, and rulings 227
Admission.
175
Belief in the Hereafter
Admission, denial, and reconciliation in inheritance 178
Belief in the angels, messengers, and scriptures 232
Confession of adultery four times necessitates the ḥadd 181
An animal dies in a well
Judgments
Coercion lifts the ḥadd
182
183
 140
JAT
 188

191
192
193
194
195
.
Substitution in sales and others
Basmalah at the beginning of prayer.
236
237
•
238
Mules, donkeys, horses and their rulings 239
Baghy (rebellion) and rebels
Weeping over the deceased
The trial of sins.
Urinating standing
Clarification and its effect on a person
Sale
Deferred sales
Sale and exception in it
Turning in prayer
Imamate and congregation
Imamate and caliphate
Amān (safety)
Safety in battle
Umm al-walad among slave women
Mothers of children
•
•
·
Wealth and its related commands and prohibitions
Sale to a deadline
196
240
241
242
243
245
•
.
 246
247
247
Sale until harvest or until juice 248
Guardian trading in or investing or seeking profit with orphans’ wealth and acting
for their benefit
Preoccupation of the mind in prayer
Listening to the Friday sermon
Leaving the prayer
199
200
 200
202
 "
Sale and riba (usury) in it is not permissible
251
252
Sale of legumes before their growth is complete 252
Sale of fruits and crops
Sale of fruits before their ripening
253
255
 Present for the absent
Sale
257
Sales and their pillars.
Sales that are not permissible
Animal for animal and for meat 257
Sale
Sale of wine is ḥarām
Khiyār (option)
 Sale
Khiyār with consultation
259
260
263
 Corrupt sales
 Deliberateness and moderation
Security in prayer
298
301
302
305
306
 •
A house with the condition of living in it for a year 264
Ramadan month confused for the captive 307
Sale
Sale
Murābaḥah, bargaining, and auction 264
Sale of muzābanah and muḥāqalah
Sale of dung and hides of the dead
Sale and advance payment
266
268
270
Yawning and sneezing in prayer and (saying) peace upon him
308
Trade with the lands of the disbelievers
309
Trading with wealth after a year passes 310
Loving one another for Allah’s sake
Selling an item in one town and receiving payment in another 270
Sale of residence
Sale of salam (forward sale)
272
273
Prohibition of milk kinship (raḍāʿah)
Release from iḥrām
Release from iḥrām
Sale of clarified butter and honey in their containers then weighed 275
311
312
313
313
Buying and selling at the time of the Friday call. 6276
Making the wife permissible (taḥlīl) and divorce if she wishes 315
Sale and condition
Sale and its conditions
Sale of something for its like hand to hand
Food before taking possession
277
278
279
.*
282
Stepping over necks on Friday
Lightening the Imam’s prayer
316
317
Giving the wife the choice and ownership of divorce 318
Choice in expiation of oaths
319
319
Giving the wife the choice in herself
Sale of food by measure, then the seller consumes it 284
ʿArayā (exchange of dates for dates)
Sale
ʿUrbān (down payment)
.
Lost property
The depths
What is not with the seller
Najsh (bidding up the price) is ḥarām
Sale
Date palm after pollination
285
286
→
287
•
.
•
288
291
293
294
Dispute in judgment and possession
Tadbīr (manumission upon death)
320
322
Estate of the deceased and creditors’ debts
324
Estate of the Prophet, peace be upon him
Leaving rawātib (regular sunnah prayers) for the one who missed the
congregation 326
Adorning for Friday
327
Lending goods to one another 328
Pledge of allegiance to the caliph upon the pillars of Islam 294
Lending in dates
Two sales in one sale
Deferred sales
296
5296
•
330
331
Lending in dates from a specific village
Lending in crop from a specific land or iron from a specific mine
Lending in fruit
1333
335
Talbiyah (labbayka)
Talbiyah for women and children
Lending in offspring and wool of sheep and their milk
Talbiyah of the muʿtamir (ʿumrah pilgrim)
336
Covering the mouth in prayer
 Taslim (salutation) at the end of prayer 337
Prompting the dying
Saying bismillah over slaughtered animals
Straightening the rows in congregation
 338
339
Declaring Allah’s transcendence
Forced conversion of the captive
Pessimism about people
Tashahhud in prayer
340
341
Tawbah (repentance) and its rulings
Tawḥīd (monotheism) of Allah the Exalted
Clapping and tasbīḥ in prayer 343
Agency of the guardian in marriage
Clapping in prayer
Drawing and rulings of images
Supererogatory prayers
Advancing zakat before its due time
Transgression
Indirect speech
Chastity and patience from asking
344
•
345
346
347
348
0351
 352
Tayammum (dry ablution)
Tayammum and its rulings
Description of tayammum
Tayammum with clay
Garlic
Woman’s garment in prayer
Colored garment for prayer
.
368
369
371
373
373
374
•
 ·
375
376
378
379

 380
383
1384
385
389
390
397
Suspending divorce upon the woman’s action 353
Beautiful garments as blessings from Allah the Exalted 392
Suspending divorce upon the wife’s will 354
Wearing white garments
394
Covering the head for one in iḥrām
Bankruptcy
Takbīr (opening declaration) in prayer
Takbīr during the days of tashrīq
Takbīr in prayer
355
356
359
359
361
Takbīr on the two nights of ʿĪd and the days of tashrīq 362
Takbīrat al‑iḥrām for the latecomer
Takbīr al‑iftitāḥ (opening takbīr) in prayer
Takfīr (declaring a Muslim an unbeliever) is a major sin
Speaking unintentionally in prayer
 Talbiyah in Hajj
363
364
365
366
367
.
Dyed garments
394
 1