Islamic laws of worship and contracts: According to Fatwas of Ayatullah Al- Úzma Al-sayyid Muhammad Al-Hussayni Shirazi 187940222X, 9781879402225

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G.M. Elliott Library

W.,

Cincinnati Christian University

NB / MVE

2700 Glenway Ave ncinnati, OH 45204-3200

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ISLAMIC LAWS OR WORSHIP AND CONTRACTS According to Fatwas of Ayatullah Al-’Uzma Al-sayyid Muhammad Al-Hussayni Shirazi

Published by: Az-Zahra Islamic Foundation P. O. Box 515 Snowden, Quebec H3X 3T7 Canada

oe O ee ee e O

Published by: Az-Zahra Islamic Foundation P. O. Box 515 Snowden, Quebec H3X 3T7

Canada

First U.S. Edition 1993

Library of Congress Catalog Number: 93-060002

ISBN: 1-879402-22-X British Library Cataloguing in Publication Data

Distributor in U.S.A. Tahrike Tarsile Qur’an, iNC

P. O. Box 731115 Elmhurst, New York 11373

IN THE

THE NAME BENEFICENT

OF ALLAH, THE MERCIFUL.

All praise is due to Allah, the Lord of the universes. May Allah send His blessings and peace upon the best of His creatures, Prophet Muhammad and his family. May Allah’s condemnation be upon the enimies of Prophet Muhammad and his ahlibayt ( peace be upon them all) . It is permissible to follow the rules of Islamic Shari’a stated in this book, if Allah would so will. May Allah, in Whom we trust and before Whom we repent, grant us success.

Muhammad Ibn Al-mahdi Al-husayni AL-Shirazi. Holy City of Karbala, Iraq. 3rd of Rabi’

II 1400 Hijri calendar.

(c) All rights reserved

Febuary, 1992 USA.

SP

IATT

|

IRRARY

G.M. ELLIOT T LIBRARY

Sincinnati Christian Universil)

Translator’s

Note:

This book which consists of two major parts; the (ISLAMIC

LAWS

WORSHIP

is translated

& THE

ISLAMIC LAWS

OF CONTRACTS)

OF

from the collections of Fatwas of the scholars such as the Book known as Tawzihul Masa’il written in Persian and Minhaj Al-Salihin written in Arabic. Tawzihul Masa’il is the Book that is used by all most all of the Mujtahidin of our time with some editing to reflect their Fatwas for the persian speaking readers. The Book Minhaj Al-Salihin, in Arabic language, originally reflected the | Fatwas of Marhum Ayatullah Sayyid Muhsin Al-Hakim of Najaf, Iraq and it also with some editing reflects the Fatwas of Ayatullah Al-Khoee who lives in Nafaj, Iraq. This book consisting of Islamic laws of worships and contracts with facts about the Islamic principles of beliefs, some social issues and notes about the prayer reflects the views and Fatwas that are prepared and compiled by Ayatullah Al-‘uzma Sayyid Muhammad, Al-Husayni, Shirazi, Dama Zilluhu.

Throughout the book the letters and sybol ‘ CR #’ followed by a number stands for ‘ A Case And Its Rule According To Sharia’,

All possible efforts are made in editing and about the accuracy in preparing this book, however, only Almighty Allah is free of mistakes. The readers comments about the contents of this religious book is most welcome and very much appreciated to improve the quality of this religious

publication.

2/25/1992 USA.

s CONTENTS Introduction Basic Principles Belief in Creator Divine Justice The Prophets Facts about Prophet Muhammad Leadership of mankind Daughter of the Holy Prophet The first Imam The second Imam The third Imam The fourth Imam The fifth Imam The sixth Imam The seventh Imam The eighth Imam The ninth Imam The tenth Imam The eleventh Imam The twelfth Imam Resurrection The need to learn Quran

Respecting the Quran Memorize Quran For reverence of Quran Reading Quran very often Reading Quran with wudu Reading Quran every night Reading Quran from a copy Manner of reading Quran The Islamic system Politics

The Economy The Army Freedom Department of Justice Department of Health

IA o WN

CONTENTS Education Peace The family The supplement Some advantageous matters Things prohibited Evil matters Excellent abilities Hadith about repenting Prayer at night About childbirth Taqlid Environment Credentials Fatwas No Taqlid in beliefs Position of scholars Sources of a Mujtahid’s Fatwa Three ways to obey Qualifications of a Mujtahid Ahadith Ja’far Ibn Muhammad (A.S.) Responsibility Signs of Maturity Kinds of Obligations Major Sections of Law Rules of Taqlid Rules of Taharat Kinds of water Small quantity of water Flowing water Rainwater Wellwater Restroom Taharat Lawful or unlawful foods Meat and seafood

CONTENTS Conditions of slaughtering Unclean Substances Purifying Agents Water

Earth Sun Chemical change Evaporation Transformation Islam Subordination Isolation Absence of Muslim Using Lavatory Estibra’ Preferables in restroom Wudu Things Invalidating Wudu Prayers to say during Wudu Details about conditions Acts requiring Wudu Wudu with Bandage Obligatory Ghusls Details Forbidden for Junub Ghus] for Janabat Having Gus] by diving Precepts of Gusl Irregular period Test Regular period Rules during period Differences in period Ghus! for Child birth Ghus! for Touching a Corpse Rules about a dying person Ghusl, Shroud, Prayer and Burial

re Te

CONTENTS

iv

Shrouding Hunut

159 161

The form of Prayer for a Corpse Preferable things in Burial The Prayer of Wahshat Preferable Ghusls Tayammum Preface (Worship a constant need) Daily Prayer and its form The role of worship Unseen elements in worship Daily Prayers and its form Kinds of Prayers The Optional Daily Prayers Timing of the Daily Prayers

162 167 170 171 173

178 178 182 185 193 195 196

197

About Qiblah When to face Qiblah Clothing during Prayer Place of Prayer Adhan and Eqamah The Obligatory parts of Prayer The Elemental Parts of Prayer Intention Takbiratul Ehram

203 204 206 212 217 220 220 221 224

Recitation Preferables in recition Rukw’ Sajdah Mustahab in Sajda

229 233

Supplement Tashahhud Salam Proper Order The Continuity

240 241 242 243 244

Qunut

244

234

236 239

Ta’qib

246

Things invalidating Prayer

246

Things Mukruh during Prayer

22

a CONTENTS Disorder in Prayer Doubts in Prayer Prayer of Ehtiyat Remedy for forgotten Parts Sajdah for mistakes Friday Prayer Prayer for unusual! Events Qada Prayers Prayer for Payment Prayer in Congregation The Prayer on a Journey Factors that Discontinue a Journey Rules of Travelling Optional prayers "id prayer

Prayer of Wahshat Prayer in the Mosque of Kufah Fasting Things that invalidate Fast Expiation of Fast Conditions for Fasting People not Required to Fast Qada Fast Recommended and Mukruh Fasts Ways to know New Moon E’tikaf Things to avoid during E’tikaf Zakat The Taxable Property Zakat of Gold and Silver Zakat of Agricultural Products People Deserving to Receive Zakat Fitrah Khums & properties subject to Khums Minerals Treasures Valuables from sea Land purchased

CONTENTS

vi

Property mixed with unlawful ones Net Savings Recipients of Khums Virtue and Evil Reminder Undesirable matters Introduction Marketable & non Marketable things

367 369 380 382 385 387 390 391

Preferable Matters Condition of contract terms Conditions of parties

399 400 403

Tentative contract Conition about goods Right to revoke Right of insession Right in deal of animals Right because of a condition Right because of loss Right because of delay Right of observation Choice for defect Adenda Rules of choices Things part of merchandise Delivery of merchandise Cash & credit Musawama... Riba Sell of Golden & Silver Prepayed transaction Selling fruits Selling animals

404 409 415 415 416 416 419 423 424 426 429 430 431 432 434 436 437 440 445 448 452

Al Shuf’a Party of right of Shuf’a Claiming Shuf’a

454 456 457

Renting & leasing Hiring

461 464

CONTENTS Delivery of rentals Loss of rentals Two kinds of renting Miscellaneous Rules Share cropping Irrigating Ju’ala Sharp shooting Partnership Profit Sharing The Book of Deposits (Wadi’ah) The Book of Borrowing (’Ariyah) The Book of Foundling (Luqatah) The Book of Usurped (Ghasb) Property The Book of Reviving Dead and Barren land (Ihya’ul Mawat) The Book of Common Properties The Book of Loans and Lending The Book of Mortgage (Rahn) The Book of Placing under Guardianship (Hajr) The Book of Guarantee (Daman)

The The The The The The The The

Book Book Book Book Book Book Book Book

of of of of of of of of

Assignment (Hawalah) Bailsman (Kafalah) Settlement (Sulh) Professing (Iqrar) Proxy (Wakalah) Gift (Hibah) Will (Wasiyah) Bequeathed

Bequest recipient

Executer of will Will in death bed The Book of Endowment (Wagaf) Qualification of donar Endowed property Beneficiaries Some rules of endowment

CONTENTS

Viii

Restricted properties

603

Charity recommended The Book of Marriage (Nikah)

605 607

Guardian

609

Causes of unlawful marriage Temporary marriage Defects Dowry (Mahr)

611 621 623 626

Recalcitrance Children Expenses

628 629 633

The Book of Divorce (Talaq)

637

Kinds of divorce Waiting Period Khul’ and Mubarat Zihar Swearing ... one’s wife Condemnation Oath Vows Covenant The Book of Expiations (Kaffarat) Hunting Fish for Food Locusts Slaughtering The Book of Food & Drinks Birds

640 643 650 654 656 657 658 659 661 661 665 673 674 675 682 684

Solid Substances

685

Liquid

686

The Book of Inheritance Third Introduction Fourth Introduction

688 689 690

Exclusion Categories of Heirs

691 696

Shares of Children Second Category

696 700

Third Category

705

H

Ty?

*

eee ae

CONTENTS Inheritance (Part 2) Relatives Guardianship of Master Guardianship of Imam Children of ... Hermaphrodite The People Drowned The Inheritance of Majoos Appendix

ix 708 708 711 712 713 715 716 ny 718

ISLAMIC

LAWS

OF WORSHIP

1

INTRODUCTION Upon the request of some of the faithful members of the community to compile the rules of Islamic Sharia in considerable details, we decided to write this book which contains more details of the sections of the Sharia than other such books published. Besides, we added the following topics to the main sections. (1) A Brief account of the basic concepts of Religion (Islam). (2) Some Hadith on the virtue of the holy Quran. (3) An outline of the Islamic social system. (4) Some advantageous notes on Islamic prohibitions and the virtuous moral achievements. (5) Rules applicable to new emerging issues.

BASIC (1) (2) (3) (4) (5)

PRINCIPLES.

THE ONE SUPREME BEING AND CREATOR OF ALL THINGS. JUSTICE OF THE SUPREME BEING. THE PROPHETS. THE LEADERSHIP OF MANKIND. THE RESURRECTION.

1. Belief in One Supreme Creator means that the universe has one creator Who has created every thing when there nothing existed, therefore, creating, giving sustenance, granting bounties, denying bounties, death, life, health and sickness all are under His control. "Whenever He wants to do some thing He only says, " exist" and it comes into existence." The holy Quran. Of the evidence of the existence of Allah, the Most High is all that we see in the space like the shining sun, the moon and stars, the clouds in the skies, the winds and rain and things on earth such as the oceans, rivers, fruits, trees, all kinds of minerals, such as gold and silver etc., and the different species of

animals and birds animals that live on some are not alike, due to their various

flying, the creatures that swim in the waters and the land having various shapes and sizes some are alike and and human beings who are the most wonderful creature abilities such as their senses and feelings.

BASIC

PRINCIPLES

2

All of these are evidence of the existence of All-wisdom and omniscient Creator in Whom we believe and Whom we worship, from Whom we ask help and in Whom we trust. Allah, the Most High has many attributes:

He is omniscient; He knows about all things small and big. He knows what people may have in their hearts. He is Almighty; all things are in His control, He has the power to create things, give them sustenance, let them die or give them life. He lives and never will die. He has the will; He wills things that are useful and He does not will things that are not useful. He perceives all things; He sees all things, He hears the voice of all things even if it would only be a whisper. His existence is from eternity to eternity. He created things when nothing existed. He will live when there nothing will exist.

He speaks; He speaks to whomever of His sincere servants whom He wills like His messengers, and the angels.

He is truthful and never disregards His promise. He is the Creator, the provider, the life giver, the source of bounties with power to stop them also, He is merciful, forgiving, Majestic Honorable and Generous. Allah, the Most High is free of all short comings:

He does not have a body like ours. He is not composed of parts and He can never be seen in this world or in the nest world. In Him no accident takes place. He does not feel hungry and He never gets old. He has no partner or companion and He is the only One Supreme Being. His attributes are not different from His essence. Thus, He is Omniscient and Almighty since eternity, not like us that were ignorant at a time and then acquired knowledge or were weak at a time and then became strong.

He is self-sufficient. He does not need any consultations or helper or secretaries or any army to protect His person etc.

a ISLAMIC LAWS

(2)

OF WORSHIP

3

DIVINE JUSTICE.

Divine justice means that Allah does not do any injustice to any one and that He does not do any thing that would be against wisdom . Therefore, whatever He has created, or whatever amount of sustenance that He has given to someone or whatever that He has not given to someone all are on the basis of wisdom and on some good grounds even though we do not know such good reasons. It is simply like a physician’s prescribing a certain medicine for a patient that we consider is good and useful even though we may not know all the evidence for its usefulness. If we see that Allah has granted someone big amounts of wealth or that He has caused someone to become poor or that He has helped someone to become respectable and He may not have done such a favor to another person or that He caused someone to be come sick and has kept another person healthy and sound etc., in all such cases we must believe that all of such cases are based on good grounds and are on the basis of pure wisdom even though we are not aware of the wisdom of such decisions. It is stated in some Hadith that Moses peace be upon him asked Allah to let him know some thing about His Justice which would not be very clear example of justice apparently. Allah ordered him to go to a certain fountain of water in the wilderness to see things that are about to take place therein. When Moses peace be upon him arrived at the fountain he found-out that a horseman also had come to the fountain and some of his money were left behind. Then a child came to the fountain and picked up the bag of money that was left behind by the horseman. After this a blind man came to the fountain to wash himself for prayer and at this time the horseman comes back and accuses the blind man of picking up the bag of money that he had left behind at the fountain. As a result of the dispute between the horseman and the blind man the latter is killed by the horseman because of alleged stealing.

Allah then sent revelation to Moses peace be upon him to let him know the facts that he did not know. The revelation said that the horseman had stolen some properties of the father of the child who picked up the bag of money left behind at the fountain by the horseman. In this the property was returned to the rightful owner.

ISLAMIC

LAWS

OF WORSHIP

4

The blind man had killed the father of the horseman, this; the rightful

guardian was given the chance to exercise his right of tit for tat. This is how Allah’s justice and wisdom work even though it may look some how against the conventional rules.

(3)

THE PROPHETS.

Prophet is the person who receives divine revelations. The prophets are of two kinds of status:

(1) AL-MURSAL PROPHETS They were those prophets who were commissioned to guide people out of darkness

to light , out of falsehood to the truth, from unreal to real and out

of ignorance to knowledge. (2)

THE

NOT

AL-MURSAL

PROPHETS.

They were those prophets who just received divine revelations for themselves only and they had not received orders to preach such revelations to people. There were altogether one hundred twenty four thousand prophets but Almursals among them were just a few.

The first of them was Prophet Adam peace be upon him and the last of them Prophet Muhammad peace be upon him. Al-mursal Prophets were of two kinds of status also: (1) Those who had received Divine orders to preach to the whole of mankind were: (1) Abraham ( Ibrahim), (2) Noah, (Nuh) (3) Moses, (Mussa) (4) Jesus (‘issa)

(5) And Prophet Muhammad peace be upon them all.

THE

5

PROPHETS

Jews are followers of Moses, Christians are followers of Jesus and Muslims

are followers of Prophet Muhammad peace be upon him and upon all the other prophets.

The latest form of Divine guidance and religion for mankind now is Islam only. As the holy Quran says,” following any religion other than Islam is not acceptable, and such will be of the losers on the day of judgment." Islam will remain the only valid Divine religion until the day of judgment. As we just learned, prophet Muhammad was the last of the prophets and his message, Islam, is the latest version of the divine religion and it will remain effective and valid until the day of judgment. SOME

FACTS

ABOUT

PROPHET

MUHAMMAD,

PEACE BE

UPON HIM, IN BRIEF:

Prophet Muhammad was the son of Abdull and Amina Bint Wahab. He was born on Friday seventeenth of Rabi’ Awwal at dawn in the year of Elephant in Mecca during the time of a just king, the Caeser. He received Divine revelation on the twenty seventh of Rajab at the age of forty. The arch angel, Gabrael came to him in the mountains of Mecca and revealed to him the first chapter of the holy Quran now numbered 96. It reads, " In the name of Allah, the Beneficent the Merciful.

Muhammad, read in the name of your Lord Who created mankind......" Prophet Muhammad then started to preach the Divine message to people of Mecca, saying," O people, say that there is no God but Allah you will then achieve well-being. The Meccans were pagans. They laughed at him and caused great sufferings to him. The Prophet has said that no other prophet suffered as much as that he suffered. Only a few people from Mecca accepted his Divine message and the first among them was Imam Ali and the prophet’s wife , Khadija peace be upon them. When the pressures on the new Muslims by the pagans of Mecca increased he left the city of Mecca for the city of Madina and that time and date is marked as the starting point of the Muslim calendar. The number of the

Muslims then increased, an Islamic government was formed and it grew into a strong government; stronger than all the other governments and religions.

rs

ISLAMIC

LAWS

OF WORSHIP

6 SS AA ne A CELE During the time of the holy prophet of Islam in Madina many armed conflicts took place between the Muslims and the pagans and between the Muslims and the Jews and the Christians. In all of those conflicts the Prophet would always deal with his enemies with _ kindness and greatness of moral standards. In all of some eighty such conflicts the number of casualties on both sides were only one thousand and four hundred, as history has recorded.

From the day prophet Muhammad received the first piece of Divine revelation it continued coming to him up to twenty three years on different occasions and various events and at such time the holy book was completed as the latest version of Divine revelation for the guidance of mankind. During this time the holy prophet formulated and organized the affairs of the Muslims both worldly and all that concern the next life. He taught them the Divine book and wisdom. He formulated rules for their worships, businesses, social and political laws.

When it become a complete system, Allah, the Most High revealed this verse of the holy Quran, " this day we have perfected for you your religion, completed for you Our bounties and We have consented that Islam will be your religion." The holy prophet peace be upon him became ill and his illness increased and he left this world on twenty eight of Safar. Imam Ali peace be upon him undertook the task to prepare the holy prophet’s body for burial. The holy prophet’s body was buried in Madina where his holy shrine stands today.

Prophet Muhammad peace be upon him , in all cases, was an example of highest standard in sincerity, truthfulness, honesty, high moral abilities, high level of knowledge, forbearance, kindness and forgiving, generosity and bravery, self-control and piety, modesty and virtue, obedience to the law, justice , humbleness and hard-work. His physical form was in the best shape and form and his face was bright and attractive. In short , he was the center of human excellence, the common point of honor and dignity, in him knowledge , justice and virtue were incorporated. he was

the central figure nor shall there be He was a Mursal book and religion

of religion and civilization. There no man like him before any one like him in future. Prophet and with him Islam came into existence. His holy are pure and perfect as Divine guidance for mankind.

5 ae

ISLAMIC

LAWS

OF WORSHIP

7

(4) LEADERSHIP OF MANKIND (after the prophet) Just as Allah, the Most High, appointed His messengers for the guidance of mankind in the same way appointing deputies and successors for the prophets was a matter of necessity. Allah, the Most High, appointed twelve distinguished personalities, one after _ the other as successors of the holy prophet of Islam. These twelve Imams, leaders for mankind, are well known to all Muslims: (01) Imam Ali , the holy prophet’s son in-law and son of Abutalib, the holy prophet’s uncle. (02) Imam Hassan, Imam Ali and Fatimah’s son.

(03) Imam Hussayn, the younger sen of Imam Ali and Fatimah, daughter of the holy prophet. (04) Imam Zaynul Abidin, Ali Ibn Al- Hussayn. (05) (06) (07) (08) (09) (10) (41) (12)

Imam Imam Imam Imam Imam Imam Imam Imam

Muhammad AI- Bagir Ibn Ali. Ja’far Assadiq Ibn Muhammad. Mussa Al-kazim Ibn Ja’far. Ali Al- Reza Ibn Mussa. Muhammad Al-jawad Ibn Ali. Ali Al-hadi Ibn Muhammad. Hassan Al-askari Ibn Ali. Al-mahdi Ibn Hassan, peace be upon them all.

These Imams were the authorities of Allah among mankind. They all were from the same Divine light out of which the holy prophet was created. Like the holy prophet they all were special personalities in matters of knowledge, forbearance, moral excellence, justice, high moral standards and other intellectual achievements as being the successors of the holy prophet and leaders and Divine guides for mankind.

FATIMAH ZAHRA (DAUGHTER OF THE HOLY PROPHET)

In the following we will briefly write about each of these Divine personalities including the daughter of the holy prophet, Fatimah. peace be upon her.

LEADERSHIP

OF

MANKIND

8

Fatimah was the daughter of the holy prophet, Muhammad Ibn Abdullah and Khadija, the great lady and the spiritual mother of the faithful ones. She was married to Imam Ali Ibn Abu Talib and all the Imams were her sons and grand sons and great grand sons.

She was born on 20th of Jimadi al-thani forty five years after the birth of the holy prophet peace be upon him. She died on Tuesday the 3rd of Jimadi Althani in the year eleventh of Hijrah. She lived only for eighteen years. Imam Ali prepared her body for burial and did not tell people where her grave was as it was her wishes not to tell people where she was buried. She, like her father, possessed all the intellectual abilities and achievements.

Many verses of the holy Quran were reveal in her praise and about her spiritual credits. The holy prophet had given her several honorable titles among which one is, " leader of the ladies of the worlds.”

Her father loved her very much. Whenever she would go to the house of her father the holy prophet would stand up in her respect and would give her a special place and very often would kiss her hands and would say, " Allah, the Most High, is pleased when Fatimah is pleased and He is angered whenever Fatimah is angered. She and Imam Ali had two sons, Imam Hassan and Imam Hussayn and also Muhsin who died because of premature birth due to what she had suffered and they had two daughters, Zaynab and Ummi Kulthum, peace be upon them all.

IMAM ALI (THE FIRST IMAM) The first Imam is Imam Ali son of Abutalib and Fatimah bint Assad, nephew and son in-law of the prophet. He was the first successor of the prophet as leader of mankind and father of all the Imams after him.

Imam Ali was born in Mecca on Friday the thirteenth of Rajab, thirty years after the birth of the holy prophet and he was fatally wounded by the sword of Abdurrahman Ibn Muljim on Friday, the nineteenth of Ramadan in the Mosque of Kufa and left this world three days latter at the age of sixty three. His body was prepared for burial by his sons Imam Hassan and Imam Hussayn and he was buried in Najaf where his shrine stands now.

ISLAMIC

LAWS

OF WORSHIP

9

His excellent attributes are of great numbers. He was the first Muslim. He never worshipped any idols. Under his flag victory was guaranteed. He never turned his back to the enemy. As a judge he received this compliment from the holy prophet, " Ali is the best judge among you.” About his vast knowledge the prophet has said," I am the city of knowledge and Ali is the gate of this city." In Imam Alli’s relation to the Truth the prophet has said, " Ali is with the Truth and Truth is with Ali.”

He was just in his dealings with people. He treated people equally. He never indulged himself in the worldly luxuries. He would come to public treasury and would look at the gold and silver and say, " white (meaning silver) and yellow ( meaning gold), attract people other than me." He would then distribute them among the needy. He would treat the destitute with mercy and would sit near to the poor and would help people in need. He would speak the truth out loud and issue decrees on the basis of justice. In short, he was like the holy prophet in virtuous attributes and for this reason Allah, the Most High, has considered him in the holy Quran as the soul of the prophet. (see ch. 5.)

IMAM HASSAN (THE SECOND IMAM) The second Imam is Imam Hassan son of Imam Ali Ibn Abutalib and Fatimah daughter of the holy prophet, peace be upon them all. He was born in Madina on Tuesday the fifteenth of Ramazan in the second year of Hijrah. He died, as a martyr because of poison mixed in his food, on Thursday the twenty seventh of Safar in the year forty ninth after Hijrah. His younger brother, Imam Hussayn prepared his body for the burial and he was buried in Baqi’ cemetery in Madina.

He excelled all others in his time in worshipping Allah, in knowledge and in spiritual perfections. He was more like the prophet than other people. He was the most kind hearted person in his family at his time and the most forbearing among people.

LEADERSHIP OF MANKIND

10

Once a house maid presented him a bunch of flowers and because of this the Imam set her free. He then said that it was because of how Allah has disciplined us and he stated this from the holy Quran, " When you are greeted, you should respond in even a better way or just return the greeting.” Once a person from Syria on a horse back met the Imam and started to abuse him but the Imam did not respond. When the Syrian said all that he wanted to say the Imam went closer to him and said with a smile, " may peace be with you." The Imam further said to him, " sir I think you have just come to this town. If you need some food we can provide you. If you may need some thing we can give you and if you need directions we can give directions and if you may need a ride we can provide one and if you need protection we ready to protect you."

The man after hearing all this began to cry and said, " I testify that you are a deputy of Allah on earth and Allah knows better who to entrust with Divine message."

IMAM HUSSAYN (THE THIRD IMAM) Imam Hussayn son of Imam Ali and Fatimah daughter of the holy prophet is the third Imam. He was born in Madina on third of Sha’ban in the same year when his elder brother Imam Hassan was born. He was martyred unjustly by the swords of the army of Yazid on the tenth of Muharram on Saturday in the year sixty first after Hijrah in Karbala, Iraq. His son Ali Zaynul Abidin prepared his decapitated body, after being left in the field for three days, and buried him where his shrine stands now.

The holy prophet has said in his praise, " Hussayn is from me and I am from Hussayn.” He also said this about his grand sons, " my two grand sons are the delights of my eyes. Hassan and Hussayn are the leaders of the youth in Paradise. Hassan and Hussayn both are Imams either they will assume this position publicly or not."

He was the most knowledgeable and the best worshipper among the people of his time. He would pray a lot every night like his father and in may nights he would carry sacks of food to the needy and the marks of carrying heavy

ISLAMIC

LAWS

OF WORSHIP

11

sacks were seen on his back by others. He was very kind, a great and forbearing personality. He revived through his one of a kind revolution the Islamic Sharia and the religion of his grand father, in fact, he did a great favor to the whole world and he is the leader of the martyrs and the best among = pee after his elder brother.

IMAM ALI ZAYNUL ABIDIN (THE FOURTH IMAM) The fourth Imam was Ali son of Imam Hussayn and Shahe Zanan daughter of Yazd gurd, King of Persia. He was born in Madina on fifteenth of Jimadi Al-awwal in the year thirty six after Hijrah, which was the day when Imam Ali liberated the city of Basra, Iraq. He died, because of poison mixed in his food by the enemies, on Saturday, the twenty fifth of Muharram, in the year ninety five after Hijrah, at the age of fifty seven and he was buried in Baqi’ cemetery in Madina. He excelled all others in his time in knowledge, worshipping Allah, spiritual perfections, piety and helping the needy. The jurists, in the matters of the Islamic Sharia, quote him widely and there are many facts of spiritual guidance, prayers and words of wisdom that he left behind as his legacy.

Very often at night he would carry money and sacks of food to the needy with his face covered by a mask so that no one would recognize him, otherwise, they would feel obliged whenever they would meet the Imam. When he left this world, then people of Madina realized that the person who used to deliver to them food etc., with his face covered by a mask was no one other than Imam Ali son of Imam Hussayn. He loved to see the orphans and destitute join him on his dinner or lunch. Every month he would call a meeting of his employees and would offer them help if any of them needed to get married or wanted to be set free. Whenever a needy person would come to him asking for help he would say this, " welcome to those who carry for me supplies to the next life." It is said that he would pray a thousand rakat of prayer in every twenty four hours. At the time of prayer his face would change out of his realization of

LEADERSHIP

OF

MANKIND

12

ea

the greatness of Allah, the Most High. Due to his prostrating so much before Allah his forehead and knees were clearly marked.

Once a person from his relatives spoke to him improper words as such that normally would hurt one’s feelings. After a while the Imam stood up and stepped nearer to that person. People around thought that he, perhaps, wants to answer him in the same manner, but the Imam, instead, recited this from the holy Quran, "... those who control their anger and forgive people,

Allah loves those who do good."

He then said to that person, " brother, I heard all that you said to me. If all that you said about me is true, then I ask Allah to forgive me and if all that you said about me is not true, then may Allah forgive you."

IMAM MUHAMMAD AL-BAQIR (THE FIFTH IMAM) Imam Muhammad Al-baqir son of Ali Ibn Al-Hussayn and Fatimah daughter of Imam Hassan was the fifth Imam. He was born on Monday the third of Safar in the year fifty seven, after Hijrah and he died, because of poison given to him by the enemies, on Monday the seventh of Zilhajj in the year one hundred twenty four at the age of fifty seven and he was buried in the Baqi’ cemetery in Madina. He was a man of great virtue and leadership, a man of vast knowledge, great forbearance, great moral discipline, worship, generosity and kindness.

A Christian man, mispronouncing Imam’s name, once said to him, “ are you Bagar? ( meaning, a ’cow’). The Imam said ," no, I am Bagir." The man then said, " are you the son of female cook?" The Imam said, " that is her profession." The man then said, " are you the son of the bad negro woman?" The Imam said, " if what you say is true, then may Allah forgive her and if what you say is not true then may Allah forgive you." This changed the Christian man and he became a Muslim.

He had profound knowledge and he would answer every question without — delay. Ibn Ata of Mecca has said this about the Imam, " I never saw the | scholars look so small as they did in the presence of Imam Muhammad

Baqir. I saw Al- hakam Ibn Utaybah, with all his prestige in the community, looked just like a-child in the presence of Imam Muhammad Bagir."

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Muhammad Ibn Muslim has said this, " I asked Imam Muhammad A\I-bagqir all the questions that would come in my mind. I asked him about thirty thousand Hadith.” The fifth Imam would recite the names and attributes of Allah very often. His son Imam Ja’far Assadiq has said, " my father would recite Allah’s names very often and even when walking he would keep reciting Allah’s names and people’s talking to each other would not distract him from reciting Allah’s names. He would pray a lot at night and his tears would flow tremendously during his worshipping.

IMAM JA’FAR AL-SADIQ (THE SIXTH IMAM) The sixth Imam was Ja’far Al-Sadiq son of Imam Muhammad Al-bagqir and fatimah also called Umm Farwah. He was born in Madina on Monday the seventeenth of Rabi’ Al-awwal in the year eighty three after Hijrah. He died, because of poison given to him by the enemies, on fifteenth of Shawwal in the year one hundred forty eight after Hijrah at the age of sixty five. He, unquestionably, possessed vast knowledge, wisdom, piety, simple living manners, truthfulness and justice. Shaikh has said that from none of the members of the family of the holy prophet so much Hadith is narrated as much as it is narrated from the sixth Imam. None of the members of the family of the holy prophet had the chance to meet so many of the narrators of Hadith or historians as did the sixth Imam.

A list of the names of the narrators of Hadith from the sixth Imam number about four thousand among whom is Abu Hanifah,( as one of the sixth Imam’s students,) the Imam of a certain school of law of the Muslims. He lived a simple life. He himself would work in his garden. He would pray a lot with great deal of attention and often his body would not respond to any physical contact because of his mind attracting his attention totally to the meaning of his worship. One night Rashid, the caliph of the time wanted to meet him and he sent one of his servants to the sixth Imam’s house. The servant has said that he found the Imam in the state of prostration before Allah with his hands and face on the ground and his forehead and the sides of his face dust on them.

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The sixth Imam was very generous, of excellent moral perfections and of very polite manners in his social dealings.

IMAM MUSA AL-KAZIM (THE SEVENTH IMAM) The seventh was Imam Mussa Al-kazim son of Imam Ja’far Assadiq and Umm Hamida. He was born in Abwa between Mecca and Madina on Sunday the seventh of Safar, in the year one hundred twenty eight after Hijrah. He died, because of poison, in Haroon’s Jail after fourteen years of unjust and hostile confinement therein, on twenty fifth of Rajab, in the year one hundred eighty three. His body was prepared for burial by his son Imam Ali Al-reza and was buried where his shrine stands today in Kazimiah, Baghdad, Iraq. He was the most knowledgeable person of his time and the best of them. He was very generous, brave and of excellent spiritual perfections and worship and long prostrations in the presence of Allah. His control over his anger was as such that his name became Al-kazim, which means great control over one’s anger.

Once a poor person asked him for some help and the Imam just to know the man’s attitude of mind asked him some questions. When the man answered them properly, the Imam in appreciation of alertness of the man’s mind gave him a thousand Dirham instead of a hundred that he had asked for.

His love of worshipping Allah and prostrating before Him was so much that he breathed his last during his prostration before Allah.

IMAM ALI AL-RAZA (THE EIGHTH IMAM) The eighth Imam was Ali son of Imam Mussa Al-kazim and Al-sayyidah Najmah. He was born on Friday the eleventh of Zilga’dah, in the year one hundred forty eight in Madina and he died, because of poison mixed in his food by the enemies, on the last day of Safar in the year two hundred and

three. His body was prepared for burial by his son Imam Muhammad AF jawad and he was buried in Khurasan where his shrine stands now.

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It is needless to speak of his achievements in knowledge, virtue, nobility, generosity, moral perfections, humbleness and worship of Allah.

Mamoon, the caliph of the time asked him to take charge of the administration of the Muslim government but he did not accept it because he knew that things will not go the way he liked them to go. It was just like the case of his great grand father Imam Ali who did not accept the post of leadership with the condition set by the counsel that he should run the government according to the book of Allah, the traditions of the holy prophet and the policies of the two shaikhs,( Abu Bakr and Umar). Imam Ali did not accept such offer but Uthman accepted it. When the eighth Imam did not accept the post of the leadership of the Muslim government, Mameoon asked him to be his successor and the Imam accepted it with the condition that he will not be asked to take part in any governmental task during the life time of Mamoon. Some examples of his vast knowledge came to light when Mamoon invited the scholars of different schools of thought to attend a seminar of debate over the theological issues and matters of the doctrines of faith.

For his worship he would stay many nights awake and read the holy Quran in three days. Very often he would pray a thousand prayers in twenty four hours and he would fast very often. He was very generous and he would help people during the night so that no

_ One would notice that he was the eighth Imam.

He never did any injustice to any one in words or deeds. He would never speak very loud or rough. He never sat leaning on some thing or laugh in the presence of others. He would call all the members of his family and servants to have dinner or lunch together.

IMAM MUHAMMAD AL-JAWAD (THE NINTH IMAM) The ninth Imam was Imam Muhammad Al-jawad son of Imam Ali Al-Reza and Al-sayyidah Subaika. He was born on tenth of Rajab in the year hundred ninety five after the Hijrah in Madina. He died, because of poison given to

him by the enemies, in Baghdad at the end of Zilqa’dah in the year two hundred twenty and he was buried next to the grave of his grand father in

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He excelled all others of his time in knowledge, spiritual perfection, generosity, social and moral manners and dealings and in the art of eloquent communications. He would carry gold and silver with him to be spent for the needy.

More people became aware of his vast knowledge when about eighty scholars from different places met him on his way back from Hajj and asked him all sorts of questions and the Imam answered all of them to their satisfaction. It is astonishing indeed that once people gathered around him to ask him all sorts of questions and such questions numbered to thirty thousand and he answered all of them correctly and at that time he was only nine years old. Age factor, however, was not an issue in the case of the members of the family of the prophet. The Caliph of the time gave to him his daughter in marriage after the Imam’s answering all the questions that the Caliph had asked him for trial purposes.

IMAM ALI AL-HADI (THE TENTH IMAM) The tenth Imam was Ali Al-hadi son of Imam Muhammad Al-jawad and Alsayyidah Samanah. He was born in Madina on fifteenth of Zilhajj in the year two hundred and two after Hijrah. He died, because of poison given to him by the enemies, in Samarra, Iraq on Monday the third of Rajab in the year two hundred fifty four after the Hijrah and he was buried in Samarra where his shrine stands today.

He remarkably excelled all others of his time in the fields of human perfections, as knowledge, generosity, politeness of manners, worshipping Allah, moral qualities and discipline.

As one example of his generosity is the case of the Caliph of his times sending him thirty thousand Dirhams that he ( the Imam) gave to an Arab man of Kufa, all of it, saying, " pay your debts out of it and spent the rest on your family and people." The man then, thanking the Imam said, " sir, the debts on me is only about one third of it but Allah knows who to entrust with His message of Divine guidance." Then he left.

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IMAM HASSAN AL-ASKARI (THE ELEVENTH IMAM) The eleventh Imam was Imam Hassan Al-Askary son of Imam Ali Al-hadi and Al-sayyidah Jiddah. He was born on Monday the tenth of Rabi’ Al-akhir in the year two hundred thirty two after the Hijrah. He died, because of poison given to him by the enemies, on Friday the eighth of Rabi’ Al-awwal. His body was prepared for burial by his son Imam Al-mahdi and he was buried next to the grave of his father in Samarra where his shrine stands now. His noble and excellent personality is well-known to Muslims. His physical form was perfectly shaped and spiritually he was just like his great grand father the holy prophet. Ismael narrates the following: Once I sat on the way waiting for the Imam to pass by and when he did I complained about my difficulties and asked him for financial help. The Imam said, " you swear by Allah falsely because you have buried one hundred Dinars as a saving and what I say is not to deny you financial help. Boys, give him all the money with you."

He was well-known to Christians as having all human perfections like Jesus did. The Imam would worship Allah a lot and his personality was majestic.

IMAM MUHAMMAD AL-MAHDI (THE TWELFTH IMAM) The Twelfth Imam is Imam Al-Mahdi, Al-hujjah ( the authority) son of Imam Hassan Al-askary and Al-sayyidah Nurgis. He was born in Samarrah, Iraq, on fifteenth of Sha’ban, in the year two

hundred fifty five after Hijrah.

He is the last of the Imams of the people on earth and with him the line of succession to the holy prophet ends. He still, by the will of Allah is living in this world but he does not appear in the public sight and will come himself to

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public towards the last days of human civilization at a time when the earth will become full of injustice and he will restore order and make justice prevail. The holy prophet and the other Imams have said that Imam Al-mahdi will live so long until he will have full control of the whole world, make justice to prevail and will do away with all tyranny. He will make Allah’s religion to prevail even though the pagans would dislike it. May Allah, give him permission to come in public very soon and let us be of his helpers. Since this great Imam disappeared from the public sight, by the will of Allah, when he lived in his house in Samarra, people out of respect to this Imam consider that place as a place of worship.

(5) RESURRECTION Resurrection means that Allah, the Most High, will one day bring back to life all the dead people to let every one find the results of their deeds whether good or bad. Those who were praying, fasting, speaking the truth, maintaining sincerity, giving shelters to the orphans and feeding the destitute etc., they will be admitted into Paradise wherein streams would flow and will enjoy the mercy of Allah and the pleasures of Paradise. But those who disbelieved, committed evil deeds, spoke lies, breached their trust, committed murders, stole others properties, committed adultery or consumed intoxicant substances etc., will go to Hell to suffer all the miseries therein forever.

Before Paradise and Hell there are two other phases of time: (1) One is grave wherein every one will be questioned about his or her deeds and the person will be treated in accordance with the quality of his deeds. Because of this the holy prophet said, " the grave will either be a pit of the pits of Hell or a garden of the gardens of Paradise." People’s condition in the grave would be some thing like one’s condition during one’s sleep in which one would either have sweet and pleasant dreams or bad and terrifying ones. A person awake does not realize whether a person sleeping is having bad dreams or good ones, in the same way we do not realize whether a dead person is happy or in trouble.

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(2) Resurrection will take place after these bodies are brought back to life from their graves. All people will be brought together at one place wherein the court of Justice and the Balance will be established and the chief prosecutor will be present. The Judges, consisting of the good servant of Allah will take their seats and everyone’s records of deeds will be made public. The witness will show up, good people will be saved and people with evil deeds will face huge troubles. Man, therefore, must take all the necessary steps to protect him/herself against bad consequences of evil deeds and the terrifying sufferings of the life to come which will never end.

THE HOLY QURAN THE NEED TO LEARN AND TEACH THE HOLY QURAN Praise to Allah and may peace and blessings of Allah be with the holy prophet and his family.

In the following we will quote some Hadith ( sayings of the holy prophet) from Al-Wasael Al-shi‘a, chapter about holy Quran. Sa’d Ibn Al-khaffaf has narrated from Abi Ja’far peace be upon him, "Sa’d, learn the holy Quran, because on the day of judgment the holy Quran will come in the best form that people may have ever seen. ( the Imam continued saying ) ..until the holy Quran comes to Allah, the Most high, and Allah will speak to Quran saying, "my true spoken words and authority on earth, look up and ask for your wishes. Your wishes shall be granted and your intercession shall be accepted. How did you find my servants?" The holy Quran will then say, "my Lord, some of them kept me safely protected and did not lose any thing from me but some of them lost me and disrespected me and called me lies even though I was your authority to your creatures."Allah then will say, "I swear by My Majesty, Greatness and Highness that I shall give the best reward on this day because of you and shall punish severely because of you."

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The Imam then continued saying, "one of our followers then will come forward and the Quran will say to him, "do you know me ? I am the Quran for which you kept the whole night awake and faced sufferings in your life. come let us go to Almighty Allah."The Quran then will say, "Lord, this your servant was very close to me and very careful about me. He would love others because of me and would hate others just because of me." Allah, the most High, will then say, "Let my servant enter Paradise and let him be dressed and crowned and then let him come back to see his friend, the Quran."When that servant of Allah is well rewarded comes back to see his friend the Quran, Allah, the Most High will ask the Quran, ’ are you happy with Our rewards given to your friend?"the Quran will say, "Lord, I think it is not enough and I request that he should receive more good things. Allah then will say, "I swear by my Majesty, Honor and Highness I shall reward him and others like him with five things and more: I shall give them eternal youth, health, richness, happiness and life."

Yunus Ibn Ummar has narrated from the sixth Imam that a son of Adam shall be called to judgement and the holy Quran will lead him in the best form and shape saying, "Lord, this is your faithful servant. He would make himself tired reading me and would stay long hours awake studying me and would weep a lot in his efforts. Lord, be pleased with him as he has pleased me."Allah, the Most High, will then say, "my servant, raise your right hand." Then on his right it will all be full of the blessings of Allah and his left side will also be filled with Allah’s blessings. Then Allah will say, "my servant, this is my Paradise for you. Read from the Quran and go higher." For each verse of the holy Quran that he will read he will go one degree higher.

The sixth Imam has said that a person believing in Allah must not die before learning the holy Quran or at least be busy learning it. ’aqaba Ibn Ummar has narrated from the holy prophet peace be upon who has said, "Allah will not punish a heart that listens the holy Quran."

Ni’man Ibn Saed has narrated from Imam Alli (a.s.) who has said, " the holy prophet has said that the best among you are those who learn and teach the holy Quran," In Nahjul Balagha Imam Ali says in one of his sermons, "learn the Quran it is the spring for the hearts, seek cure from the Quran ; it is medicine for the chests, read it nicely ; it has the best stories. The scholar who does not

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practice what he knows is like the wondering ignorant person who never gains awareness out of his ignorance, but there is greater reason to remove his excuses, he will always regret and in the sight of Allah he will be more blamable." Ma’az has narrated from the holy prophet who said, "Whosoever teaches his child the holy Quran, Allah shall on the day of judgement crown his parents with the crown of the king and will dress them with such a dress that no one would ever have seen such dress.” The holy prophet has also said that the followers of the holy Quran are the people of Allah and very special to Him. That the holy Quran is a wealth without poverty and that the most respectable in my followers are the upholders of the holy Quran and those who worship at night. The holy prophet has said that this Quran contains the manners of Allah, learn out of it as much as you could. This Quran is the rope of Allah and His clear light. It is very useful cure and the strong-hold for those who seek for it and safety for those who follow it.

The holy prophet has also said that whoever learns the holy Quran and memorizes it Allah will enter him to Paradise and will accept his intercession for up to ten people from his family who all would be of those who are doomed to go to Hell. He has also said that the upholders of the holy Quran in this world will be of the well-known people in Paradise. The holy prophet has said, when a teacher asks the student to say the Quranic phrase "In the name of Allah the most merciful’ and when the child says it Allah writes the testimony of freedom for the child, his parent and his teacher.

RESPECTING THE HOLY QURAN Obligation of Respecting the Holy Quran and following Its Guidance and Unlawfulness of Disrespecting of It.

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Ishaq Ibn ghalib narrates from the sixth Imam, peace be upon him, who said, "on the day of judgement when all people are brought back to life at one place, a person will appear in such a beautiful form that no one would have ever seen such beauty before. The people will look at him, and, in fact, it will be the holy Quran, they will say that he is from our people but he has the best form that we have ever seen. This person goes to the Divine throne and stands right next to it. Almighty Lord then will say, "I swear by My Majesty, Greatness and Highness that I shall honor those who have honored and respected the holy Quran and disgrace those who disrespected the holy Quran.

Abil Jarood has narrated from Imam Abi Ja’far who has narrated from the holy prophet who has said, "on the day of judgement I will be the first to come to the presence of Allah with the holy Quran and my family and then my followers. Then I will ask them about how they treated my family and the holy Quran." The holy prophet has said, "one who reads the holy Quran and then thinks that some one other than him has received a better reward, such person has belittled what Allah has made great and has considered great what Allah has belittled." Talha Ibn Zayd has narrated from the Abi-Abdullah who said, "this Quran carries the torch of guidance and light for the darkness. Those who seek its light they will have their sight brightened and will find their eyes opened in the light. Thinking is life for the intelligent hearts just as one who finds light to walk in the darkness." Soma’a has narrated from the sixth Imam who has said, "one who reads the

holy Quran should pray to Allah for salvation, protection from Hell fire and wish for the best whenever one would read a verse of the Quran that contains some warning or prayers."

Al-sakooni has narrated from the sixth Imam who has narrated from his father and the holy prophet who said, "when confusion will surround you like a piece of dark night, you must seek guidance of the holy Quran, because its intercession will not be declined and its testimony will be held true. Whoever will take it as his leader it will lead him to Paradise and whoever will push it behind himself it will push him into Hell.

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The holy Quran guides to the best path and it is a book that gives one details, clarity and comprehension. It is a criteria of discerning right from wrong and clean of unwanted matters. It has face and hidden meanings. Its face meanings are laws and its hidden meanings are knowledge. Its apparent meanings are beautiful and its hidden meanings are deep. It has stars up on stars ( like space ) and its marvels are beyond numbers and its wonders never get old. It is the torch for guidance, beacons of wisdom, direction to the fact and knowledge of it for one who knows of the fact no more than a few of its clues. One, thus, must open his heart in the light and let his eyes see the fact. The holy Quran saves one from destruction and frees one from entanglement. Thinking is as life to an alert heart just as light is for one who needs light to walk in the dark. You must seek your salvation in the best form and stop waiting." Maymoon AlI-gassab has narrated from Imam Abi Ja’far who has narrated from the holy prophet who said, " It is astonishing that I do not get old.” Ibn Abbass has said that Abu Bakr asked the holy prophet, " holy prophet, what makes you to get old quicker? " The holy prophet said, " chapter 11,56, 77 and 78 of the holy Quran." The sixth Imam has narrated from Imam Ali, peace be upon them, who said in a long statement about the pious people, "at night they stand up ( for prayer) and read and recite the holy Quran one part after the other. They make their souls to feel sad and reading the holy Quran makes their sad feelings to further increase. They weep for their sins and pains of the cuts in their wounded feelings. Whenever they come across a passage of the holy Quran that speaks of warnings to mankind they open wide the ears of their hearts to them with their hairs standing on end and their hearts frightened and they think that it is the roaring and pounding of the flames of the Hell fire striking against their ears. Whenever they come across a verses of the holy Quran that speaks of good news and encouragements they incline on them with hope and their souls filled with delight of reaching such goals."

Abi Hamza Al-thamali has narrated from the sixth Imam who has narrated from Amirul Mo’minin who has said, "Should I tell you about the true jurist ? He is the one who does not cause despair from the mercy of Allah in the hearts of people, nor neglect of His punishments or loosing all hopes of His kindness. Those who do not allow people to disobey Allah and who does not give up the holy Quran because of some thing else. Know that knowledge

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without understanding, reciting the holy Quran without thinking about it is of no value. Know that worship without following Sharia is of no value’.

THE OBLIGATION OF RESPECTING THE HOLY QURAN AND RECOMMENDATIONS ABOUT MEMORIZE, LEARNING AND TEACHING THE HOLY QURAN. Al-sakooni has narrated from sixth Imam who has narrated from the holy prophet who said, "the followers of the holy Quran are of the highest ranks among man except the prophets. Do not consider the followers of the holy Quran weak because they are of high ranks in the sight of Allah." Abdullah Ibn Abbass has narrated from the holy prophet who said, "the most honorable among my followers are the upholders of the holy Quran and worshippers at night."

Abi Saed Al-khadari has narrated from the holy prophet who said, "the followers of holy Quran will be of the people with best knowledge of the truth in Paradise." Imam Hassan Al-askari has said in his commentary of the holy Quran quoting his grand father, the holy prophet, "the upholders of the holy Quran will have special shares in the mercy of Allah. They have kept themselves in the light of Allah, who have learned the words of Allah and have sought

nearness to Allah. Those who love them have loved Allah and those who are hostile to them are hostile to Allah. Allah repels from one who listens to the holy Quran being recited the worldly misfortunes and the misfortunes of the life hereafter and from the one who recites the holy Quran. I swear by the One in Whose hands is Muhammad’s soul that reward for the good deed of listening, with faith, to the holy Quran being recited will be greater than a lot of gold spent for a good cause and the reward for reciting the holy Quran, with faith, will be greater than whatever is between the Throne above and the point below the center of the earth." Fuzayl Ibn Yasar has narrated from the sixth Imam who has said, “one who memorizes the holy Quran and lives according to its guidance will have equal ranks with the people called ‘ Al-safarah Al-kiram Al-bararah ’ literally meaning the most honorable and virtuous Divine ambassadors."

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It is narrated from the sixth Imam who said, "one who tries hard to memorize

from the holy Quran and because of weaker memory faces difficulties, such person receives twice as much reward."

Minhal Al-Qassab has narrated from the sixth Imam who said, "if a young faithful person reads the holy Quran, the holy Quran gets mixed with his fiesh and blood and Allah will include him among the honorable and virtuous Divine ambassadors and on the day of judgement the holy Quran will be his supporter and the holy Quran will say, “Lord, every worker has received the reward for his deeds except my worker. Please, give him the most honorable reward.” Allah will then dress him with two dresses of Paradise and crown him with the crown of honor and then ask the holy Quran, "did We make you happy?"The holy Quran will say, "Lord, I wished for him better than this."Allah will then give peace in his right hand eternity in his left hand and will say to him read from the holy Quran one verse and go one degree higher". Then the holy Quran is asked again, "did we reward him good and make you happy?"The holy Quran will say,"yes."If one reads the holy Quran very often and faces difficulties to memorize it due to weaker memory, Allah will give him twice as much rewards. Aban Ibn taghlib has narrated from the sixth Imam who said, "a person who has both the holy Quran and faith his case is like citron with nice taste and aroma and the case of those who do not have the holy Quran and faith is like colocynth or bitter cucumber which is bitter and has no good aroma." Fuzayl Ibn Yasar has narrated from the sixth Imam who has narrated from the holy prophet who said, “learn the holy Quran ; on the day of judgement it will come to his friends in the form of a most beautiful young person of pale complexion and will speak to his friend saying, "I am the Quran for which you kept so often awake and endured thirst during the heat of midday, dried up your mouth and let your tears flow, I have good news for you. The man will receive a crown and peace will be placed on his right hand and eternal life in Paradise in his left hand and he will be dressed with two dresses of Paradise and then he will be told, "read and climb."For each verse that he will read he will climb up one degree and his parents, if they are of the believers each will receive two dresses of Paradise and they will be told that this is because of your teaching your child the holy Quran." Asbagh Ibn Nabatah has narrated from Amirul Mo’minin who said, " Allah, seeing people of the earth knowingly commit sins, decides to punish them all,

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but when He finds the old people using their feet to go for prayer and the children learning the holy Quran, He, then uses His mercy and postpones the punishment."

RECOMMENDATIONS FOR THE READERS OF THE HOLY QURAN TO HAVE REVERENCE. WHAT THE READERS OF HOLY QURAN MAY _ DESERVE FINANCIALLY. Unr Ibn Jami’ has narrated from the sixth Imam who narrated from the holy prophet, peace be upon him, who said, "the person who should really be submissive to Allah in public and in private are the upholders of the holy Quran and those who should observe prayer and fasting in public and in private are the upholders of the holy Quran and then he said loudly, "the upholders of the holy Quran, be humble with the holy Quran, Allah will uplift you and do not be malcontent or else Allah will bring you low. Upholders of the holy Quran, if you did observe proper manners in your relations with the holy Quran, Allah will make it a beauty for you. Let not such manners will only be superficial to please people because Allah will then disgrace you. One who completes reading the holy Quran it will be just like incorporating prophethood within himself, but only that Divine revelation does not come to him and one who upholds the holy Quran ( by learning,

understanding and following its guidance) he will not deal with things in the manners of the ignorant people and does not behave with anger and bitterness with things that usually cause anger and bitterness, instead he forgives and ignores, pardons and endures for the sake of his respect towards the holy Quran. If one is fortunate to have the holy Quran and thinks someone else has some thing better than what he has, he certainly has revered what Allah has belittled and has belittled what Allah has revered. Imam Abi Ja’far has said, "the readers of the holy Quran are of three kinds: there is one who takes the holy Quran as a means of investments to attract the kings and dominate people. There is one who learns the letters of holy Quran but looses its laws and guidance and preserves just its form. May Allah let not the number of such people of the carriers of the holy Quran

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increase! There is one who reads the holy Quran and holds it to be the medicine for the pains of his heart. He keeps awake at night and endures thirst in the heat of the midday and he stands up with the holy Quran in his mosques and leaves his bed empty at night for prayer with the holy Quran. Through these people Allah repels misfortunes, changes the enemies and through these people Allah sends down rain from the skies. I swear by Allah that such readers of Quran are more precious than the fountains of eternal life. Hussayn Ibn Yazid has narrated from Imam Al-Sadiq who has narrated it from the holy prophet who has said, "if one reads the holy Quran and then drinks some thing unlawful or gets indulged in love of the worldly things, he becomes subject to the wrath of Allah unless he repents and if he dies without repenting, without any shred of doubt, on the day of judgement he will remain confound for ever. Ismael Ibn Abi Ziyad has narrated from Imam Al-Sadiq, peace be upon him, who said, "if two groups of people in my followers behave properly the whole community of my followers will behave properly and if these two groups are corrupt, the whole community will be corrupted; they are the readers of the holy Quran and the rulers."

Al-sakooni has narrated from the sixth Imam-peace be upon him, who has said, "if one through reading the holy Quran would consume people’s properties on the day of judgement he will come with his face without any flesh on it." It is narrated from the holy prophet, peace be upon him, who has said, "one who learns the holy Quran and does not follow its guidance and instead prefers to love the worldly things and its attractiveness, he becomes subject to the wrath of Allah and he would be of the same rank as Jews and Christians who threw the Book of Allah behind their backs. One who reads the holy Quran using it as a means for the worldly gains and reputation, he, with his face without any flesh on it, will meet Allah on the day of judgement. And the holy Quran will push him into the Hell wherein he will fall with all those who will fall therein. One who reads the holy Quran and does not act - according to its guidance he will be brought back to life on the day of judgement unable to see things and he will say, "Lord, why have you brought me back to life blind while in the world I was seeing things? Allah will say,

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"because Our signs came to you but you forgot all about them and thus, We have forgotten you today and the angels will be ordered to take him to Hell. One who reads the holy Quran in order to please Allah and to understand religion, his share of rewards will be equal to the rewards of all the angels, the prophets and the messengers. One who reads the holy Quran in order to show off others and for the sake of worldly fame or to seek some kind of superiority over the people and boast before the scholars and make worldly gains, on the day of judgement Allah will scatter his bones and no one’s sufferings will be more severe than his and there no suffering will be left with which he will not be punished because of severity of Allah’s wrath against him. One who learns the holy Quran and is humble in knowledge and teaches the servants of Allah for Allah’s rewards no one in Paradise will have more rewards then him or of higher ranks and there no rewards or degrees of excellence will be left in Paradise which he will not enjoy. The holy prophet has said, "In Hell there is a valley and because of the severity of the sufferings therein the people of Hell cry for help seventy times every day and that will be the place for the wine drinkers and those who give up their prayers from my followers." Abi Al-ashhab Al-nakha’i has narrated from Amirul Mo’minin, Imam Ali,

peace be on him who said, "one who accepts Islam voluntarily and reads the holy Quran in its verbal sense, he will deserve a wage of two hundred Dinars per year from the Muslim treasury and if he is denied on the day of judgement he will receive full compensation out of what he would most urgently need.” Muhammad Ibn Ali Ibn Hussayn has narrated from Abu Abdullah, peace be up on him, who said, "Do not accommodate ladies in special chambers or teach them writing or the chapter of Al-yusuf from the holy Quran, but teach

them spindles and the chapter ’ the light’ from the holy Quran." Note:

This prohibitions, is, perhaps, based on the fact that if such teachings would cause serious harms to them.

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RECOMMENDATIONS ABOUT READING THE HOLY QURAN VERY OFTEN IN PRAYERS AND IN OTHER CONDITIONS ALL THE TIME. Mo’awiya Ibn Ummar narrates from Abi Abdullah, peace be upon him, who said about the will of the holy prophet to Imam Ali, peace be upon them, "You must read the holy Quran in all circumstances.” Zuhri has said, "I asked Imam Zaynul Abidin, "which deed is more virtuous?"He said, “opening the holy Quran and reading to the end and whenever coming to the beginning of the holy Quran read it all the way to the end." Hafs has said, "I heard Imam Mussa Ibn Ja’far peace be up on them, saying, "the degrees of ranks in Paradise are equal to the number of the verses of holy Quran. One is told to read a verse and climb one degree higher

and so one would do." Abdullah Ibn Sulayman has narrated from Abi Ja’far, peace be upon him who has said, "whoever reads the holy Quran in his prayer standing, Allah will write for him each for each letter one hundred virtue and fifty for each letter for one who reads from the holy Quran in sitting position. One who reads the holy Quran in a state other then during one’s prayer, Allah will write for him ten virtues for each letter.”

Bashir Ibn ghalib Al-asadi has narrated from Imam Hussayn who has said, "whoever reads from the holy Quran in his prayer in a standing position, Allah will write for him one hundred virtue for each letter and if one reads from the holy Quran in the conditions other than during prayer, Allah will write for him ten virtues for each letter, and if one listens to when the holy

Quran is read, Allah will reward him for each letter one virtue.

If one completes reading the holy Quran at night, the angles will pray for him until morning, and if he completes during the day the angles will pray for him until night and his prayers will be accepted and this will be better for him than all that is between the heavens and earth." I said, "this much for the

reader of the holy Quran? what about one who does not read the holy Quran?" He said, "Allah is generous and glorious and kind whatever one would read from the holy Quran Allah will reward him accordingly."

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Muhammad Ibn bashir narrates from Ali Ibn Al-hussayn, peace be upon them, and this Hadith is narrated from Imam Abi Abdullah, peace be upon him, who said, "one who just listens to the holy Quran being read, for every

letter Allah will give him the reward for one good deed, deletes one of his bad deeds and raises him one degree higher. One who reads the holy Quran by looking at it but not in the state of prayer, Allah will write for him the reward for one good deed for each letter, deletes one of his bad deeds and raises him one degree higher.

One who learns one pronounced letter from the holy Quran, Allah will write for him the reward for ten good deeds, delete ten of his bad deeds and raise him ten degrees higher."The Imam said, "I do not say for each verse. I say, "for each letter, like Ba, Ta. etc."The Imam said, "One who reads from the holy Quran in his prayers while sitting, Allah gives him the reward of fifty good deeds for each letter, deletes fifty of his bad deeds and raises him fifty degrees higher. One who reads from the holy Quran in his prayer while standing, Allah gives him the reward for one hundred good deeds, deletes one hundred of his bad deeds and raises him one hundred degree higher. One who reads the holy Quran completely, his prayer will be heard sooner or latter."I asked the Imam, "Sir, all of the holy Quran?"He said, "yes, all of the holy Quran." Ishaq Ibn Ummar has narrated from Abi Abdullah who said, "One who reads one hundred verses of the holy Quran in his prayer during the night, Allah will write for him the reward for worshipping for the whole night. One who reads two hundred verses of the holy Quran in a condition other than the state of prayer, Allah will write for him on the protected tablet one ‘Qintar of good deeds’ and a Qintar is equal to one thousand two hundred Awgiyah and one Awgiyah is bigger than the mountain of Uhud." Anas narrates from the holy prophet who said, "one who reads one hundred verses of the holy Quran his name will not be written among the names of the people unconcerned ( about faith) and one who reads two hundred verses from the holy Quran, his name will be written among the names of those who worship during the night and one who reads three hundred verses from the holy Quran, the holy Quran will not protest against him, meaning that one

who has memorized that mush from the holy Quran, as it is commonly said, "the boy has read the holy Quran meaning that he has memorized that much."

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Imam Hassan Al- askary has narrated from his forefathers who said, "the Opening chapter of the holy Quran in terms of virtue is better than all the treasuries of the throne. Whoever reads with faith in love of the family of the prophet, Allah will give him for each letter one good deed’s reward and each of such good deed would be better for him than the whole world and all that it contains of all kinds of properties and good things and one who listens to this chapter being recited he too will receive the same amount of reward as that of the one who just read it, thus, you should read it as much as you could."

It is narrated from the holy prophet, peace be up on him, who said, "this Quran is the rope of Allah and it is His illuminating light and useful cure. You must read it; Allah will give you the reward for ten good deeds for each letter that you would read. However, I do not say that for example ‘ALM?’ is ten, in fact, ‘A’ is ten ‘L’ is ten ‘M’ is ten."

It is narrated from the holy friend of the holy Quran will higher and higher and recite world before this; your final Quran that you would recite."

prophet, peace be up on him, who said, "the be told, "read from the holy Quran and climb by the good tune that you would recite in the destination will be the last verse of the holy

The holy prophet has said, " one reads the holy Quran it would be as if he has incorporated the prophethood within himself except that Divine revelation will not come to him. Bakr Ibn Abdullah has said that once Umar come to the holy prophet, peace be up on him and said, "holy prophet, you have very strong fever."The holy prophet, peace be up on him said, "it did not stop me last night from reading the holy Quran, thirty chapters of which seven were of the long chapters." Umar then said, "holy prophet, " Allah has already forgiven your past and future sins and you still work hard so much." The holy prophet said, "shouldn’t I be a thankful servant?" Ya’qub Al-ahmar has narrated from Abi Abdullah who said, "Sir, I had learned the holy Quran but now I have forgotten some of it. Would you please, pray for me to Allah to help me learn it again?"Up on this the Imam seemed shocked and said, “may Allah and all of us help you learn the holy Quran again and we are about ten people." Then he said, "If one would know one chapter of the holy Quran and then leaves it alone. On the day of

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judgement that chapter will come to him in the best form and will greet him and the man will ask, "who are you?" It will say, "I am chapter so and so of

the holy Quran . If you would not have left me alone, I would have taken you with me to this high rank."The Imam then said, "you must be very careful

about the holy Quran." Abu Basir has narrated from Abi Abdullah, peace be up on him, who said, “if one forgets a chapter of the holy Quran that he had memorized, on the day of judgement that chapter will come to him in the next form and with a high rank in Paradise and when the man sees it, he asks, "what are you ? How beautiful are you? I wish you belonged to me.” The chapter of the holy Quran will say, "do not you know me ? I am chapter so and so of the holy Quran and I wish you had not forgotten me; I could have taken you to this high position.” Ya’qub Al- ahmar has said, "I said to the sixth Imam, peace be up on him,

"there is a lot of debts on me and I am about to forget the holy Quran."The Imam, peace be up on him, Said, "holy Quran, holy Quran! On the day of judgement the chapter and the verses of the holy Quran will come and say, "If you would not have forgotten me I would have taken you today to such and such high ranks in Paradise." Ya’qub Al- ahmar has said, "I asked the sixth Imam, peace be upon him, "sir, I am facing such problems and difficulties that I am forgetting so many good things even some of the holy Quran."The Imam was shocked and said, "if a man forgets a chapter of the holy Quran on the day of judgement that chapter will come to him with a certain rank and greets him and the man asks, "who are you? the chapter of the holy Quran will say. "I am chapter so and so of the holy Quran which you forgot, and I wish you would not have forgotten me; to-day I could have taken you to such and such high ranks and it will point to a certain rank."The Imam then said, "you must be very careful about the holy Quran. Some people learn the holy Quran so that others would call him a very good reciter of the holy Quran.

Some people learn the holy Quran so that others would praise good tune of reciting the holy Quran and there is nothing good Some people learn the holy Quran and at night they stand up with the holy Quran as well as during the day and they do not others know his learning the holy Quran or not."

him for very in all of this. on their feet care whether

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Saed Ibn Abdullah Al-a’raj has said, "I asked the sixth Imam about a person who reads the holy Quran and then forgets it reads it and then forgets it again Will there be any thing against him ?"The Imam said, "no." Hussayn Ibn Zayd has narrated from the sixth Imam, peace be up on him, who has narrated from the holy prophet, peace be up on him, who said, in the Hadith called’ Hadith Al- manahi’, "whoever learns the holy Quran and then forgets it, he will meet Allah on the day of judgement tied up in chains and for each verse that he has forgotten Allah will send to him a snake that will stay with him in Hell until Allah forgives him." This perhaps means to give up the laws and guidance of the holy Quran.

RECOMMENDATIONS ABOUT READING THE HOLY QURAN WITH FORMAL PURIFICATION AND ASKING ALLAH FOR REFUGE FROM SATAN BEFORE STARTING TO READ THE HOLY QURAN. Muhammad Ibn Fuzayl has said that I said to the sixth Imam, peace be up on him, "I read the holy Quran and then I need to use the rest room. I come back after I have washed myself and my hands and continue reading the holy Quran.” The Imam Said, "no, until you have formal "Wuzu ’purification. The author of Al-khisal narrates from Imam Ali, peace be up on him, in the

Hadith ’ Al-arba’a mi’ah ’ (four hundred), who said, "One must not read the holy Quran without formal purification." Ahmad Ibn Fahd has said in Al-’uddah Al-da’i that Imam Ali, peace be up on him, has said, "for every letter that one reads of the holy Quran in his prayer in a standing position Allah will give the reward for one hundred good deeds, fifty for each letter if one reads them in his prayers in a sitting condition and the reward for twenty good deeds if one reads them with formal purification but not in the state of prayer and the reward for ten good deeds if one reads them without formal purification. I don not say that ‘ALMR’ is one, in fact,

(A) (L) (M) (R) for each there will be ten rewards." It is narrated from Imam Hassan Al-askary, peace be up on him, who has said in his commentary of the holy Quran, "the order of Allah that requires one to seek refuge in Allah before starting to read the holy Quran, is to say, "I seek refuge in Allah, Who

listens and is Omniscient, from the Satan,

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condemned."Amirul Mo’minin has said, "I seek refuge in Allah, means I protect my self from Satan through Allah." Seeking refuge in Allah means to follow the order of Allah which says, "Whenever you read the holy Quran, seek refuge in Allah from Satan, condemned. Whoever disciplines himself with Allah’s discipline it will lead him to eternal betterment. Then he mentioned the long Hadith from the holy prophet, peace be up on him, in which he said, "if you want not to be harmed by the evils of Satan, you should say every morning, "I seek refuge in Allah from Satan, condemned. Allah will give you protection against their evil deeds."

oe:

READ FROM THE HOLY QURAN EVERY NIGHT AT HOME OR AT THE MOSQUE.

DAY

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Hazir has narrated from the sixth Imam, peace be up on him, who said, “the

holy Quran is the covenant between Aliah and His creatures. A Muslim must look into his covenant and read at least fifty verses from it every day." Zuhri has said, Imam Ali Ibn Al- Hussayn, peace be up on him said, "verses of the holy Quran are treasures, and whenever a treasury is opened one

should look into it." Mu’ammar Ibn Al-khallad has narrated from Imam Ali Reza, peace be up on him, who said, "One must read every day after the morning prayer fifty verses of the holy Quran."

Abdul A’la Mawla Aal Sam has narrated from the sixth Imam, peace be up on him, who said, "when a Muslim reads from the holy Quran in his house, that house will shine to those in heavens just as stars from heavens shine to us on earth." Ibn Al-qaddah has narrated from the sixth Imam who has narrated from Amirul Mo’minin, Ali, peace be up on him, who said, "A house in which the holy Quran is read and Allah is mentioned often, blessings increase in it, the angels come to it, Satans move out and it will shine to those in heavens as

stars shine to us from the heavens. A house in which the holy Quran is not read and Allah is not mentioned, blessings in it decrease, the angels move out and Satans move in."

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It is narrated from the sixth Imam who narrated it from his father, peace be up on them, "my father would call us together and would order us to say our Rosaries until sunrise and would order us to read from the holy Quran those of us who wanted to read from the holy Quran and those who would not read from the holy Quran he would order them to say their rosaries. The house in which the holy Quran is read and Allah is mentioned, blessings therein increase." Layth Ibn Salim has narrated from the holy prophet, peace be up on him, who said, “light up your houses by reading from the holy Quran and do not turn them into your graves as the Jews and Christians had done; they would pray in their Synagogue and Churches and who had ignored their houses. The house in which holy Quran is read often and Allah’s holy names are mentioned, blessings therein increase, their people prosper and they shine to those in heavens as the stars from heavens shine to earth."

In ‘uddatul Al- da’i it is narrated from Imam Ali Al-reza who has narrated from the holy prophet who said, "set a share for your house from the holy Quran; a house in which the holy Quran is read the people therein prosper, blessings therein increase and the people living therein will increase and if the holy Quran is not read therein, it will become narrower for the people living therein, the blessings therein decrease and the people therein will reduce." Fuzayl Ibn Yasar has narrated from the sixth Imam, peace be upon him, who said, "what stops a businessman from reading from the holy Quran one | chapter when he comes back home from his shop before he goes to sleep, so that for each verse that reads the reward for ten good deeds be written for him and ten of his bad deeds be deleted?"

Sa’d Ibn Turayf has narrated from Abi Ja’far, who has narrated from the holy prophet, peace be up on them, who said, "One who reads ten verses of the

holy Quran each night his name will not be written among the names of those who do not care much about ( religion) and one who reads fifty verses of the holy Quran each night, his name will be written with the names of those who remember Allah, one who reads one hundred verses of the holy Quran every night, his name will be written with the name of the worshippers, one who reads two hundred verses of the holy Quran, his name will be written with those who are submissive, before Allah, one who reads three hundred verses, his name will be written with the successful ones, one who reads five hundred

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verses, his name will be written with the hard working ones for the cause of Allah, and one who reads one thousand verses of the holy Quran, one Qintar will be written for him and a Qintar is fifteen thousand ( fifty thousand) Mithqal of gold and a mithqal is twenty Qirat, the smallest of which is equal to the size of the mountain of Uhud and the biggest of them is the size of some thing as big as the space between the sky and the earth." Abi Hamza Al-thamali has narrated from Imam Abi Ja’far, peace be up on him, who has said, "one who reads all of the holy Quran in Mecca in one

week or before Allah will write place since the the same would

a week or for him the first Friday be the case

more than a week and completes it on Friday, reward of all the good deeds that may have taken to the last Friday that will come in this world and if reading is completed in other days.”

Jabir has narrated from Imam Abi Ja’far, peace be up on him, who said, "for

every thing there is spring. The spring for the holy Quran is the month of Ramazan."

ABOUT READING THE HOLY QURAN AND KEEPING A COPY AT HOME.

FROM

A COPY

Ya’qub Ibn yazid narrates from the sixth Imam, peace be up on him, who said, "One who reads holy Quran from a copy of the holy Quran he will enjoy his eye-sight and lighten the burden of his parents even though they may not be believers.” It is narrated from the holy prophet who said, "there is nothing more difficult for Satan than one’s reading the holy Quran from a copy."

Ishaq Ibn Ummar has said, "I asked

from the sixth Imam, peace be up on

him, ’ sir, Imemorize from the holy Quran and read from my memory, would

this be more rewarding or reading from a copy?" The Imam, peace be up on him, said, "there is more reward for reading from a copy by looking at it. Don’t you know that looking at the holy Quran is worshipping?" It is narrated from Abi Zar who narrated from the holy prophet, peace be up on him who said, " looking at Ali Ibn Abi Talib is worshipping, looking at one’s parents affectionately and kindly is worshipping, looking at the holy Quran is worshipping and looking at the holy Ka’ba is worshipping."

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Hammad Ibn ’isa has narrated from the sixth Imam, peace be up on him, who has narrated from his father who said, "I love that there be the holy Quran in the house and with it Allah would repel Satan." It is narrated from the sixth Imam, peace be up on him, who sad, "three

things will complain to Allah, the Most Glorious: a mosque which is damaged and the people of that mosque do not pray in it, a scholar among the ignorant people and the holy Quran kept under the dust and no one reads it."

MANNER OF READING THE HOLY QURAN, KEEPING SILENT WHEN IT IS READ AND ASKING ALLAH TO GIVE THE REWARD FOR ITS READING TO SOME ONE. Abdullah Ibn Sulayman has said, "I asked Imam Abi Abdullah, peace be up on him, about Allah’s saying, "read the holy Quran with good tune", the Imam said, that Amirul Mo’minim Imam Ali,peace be up on him has said,

"read clearly, not deliriously like it is done in reciting poetry, nor recite it scattered like pieces of pebbles but strike with it your hardened hearts and none of you should think it most important to finish the chapter ( quickly)."

Salim Al-farra narrates through his chains of narrators from the sixth Imam, peace be up on him, who said, "read the holy Quran clearly; it is in Arabic that means clear." Muhammad Ibn Fuzay! has narrated from the sixth Imam, peace be up on him, who said, "it is undesirable to read the whole chapter of ’ Ikhlas ’, Unity of Allah, with a pause in the verses." Abi Basir has narrated from the sixth Imam, peace be up on him, who said about Allah’s saying in the holy Quran ’recite the holy Quran in nice tune ’, "it means that you should pause, as and when punctuation rules require and recite in a nice tune."

It is narrated from Umm Salamah who has said, "the holy prophet, peace be up on him, would read the holy Quran with pause between the verses."

Ibn Umayr through the chain of his narrators has narrated from the sixth Imam, peace be up on him, who said, "the holy quran is revealed in serenity and concerned and it should be read in the same way."

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Abdullah Ibn Sinan has narrated from the sixth Imam, peace be up on him,

who said, "Allah, the Most High told Moses son of ’imran, "whenever you stand before Me, stand as a humble poor person and when you read Torah to Me read it in a sad tune." It is narrated from Hafs who said, "I never saw any one more afraid about himself than Imam Mussa Ibn Ja’far, peace be up on him, or any one more hopeful than him. He would recite the holy Quran with sadness and it was as if he would address some one." Sayf Ibn Umar has narrated from a man who narrated from Imam Abi Ja’far, peace be up on him, who said, “one who recites chapter ninety seven of the holy Quran with a loud voice, he would be like one who has drawn his sword. for the cause of Allah and one who reads it silently, he would be like one who runs a ground in his blood for the cause of Allah, and one reads it ten times

an order is issued to delete one thousand of his sins." Mo’awiyah Ibn ’ammar has said, "I told the sixth Imam, peace be up on him, “the man does not think that he has read any thing from the holy Quran or prayers unless he says them loudly." The Imam, peace be up on him, said, “it does not matter. imam Ali Ibn Al-hussayn, peace be up on him, would recite the holy Quran in a the most pleasant tune and he would read it loudly as such that every one in the house would hear him. Imam Abi Ja;far, peace be upon him, had the best reciting tune and he would recite the holy Quran loudly during the night and whoever would pass by would stop to listen to his recitation." It is narrated from Abi Zar who narrated from the holy prophet, peace be up on him, who said in his will, " Aba Zar lower your voice when walking in a funeral procession, in combat and when reciting the holy Quran." Abdullah Ibn Sinan has narrated from the sixth Imam, who has narrated

from the holy prophet, peace be up on him, who said, "read the holy Quran in Arabic tune and voice and never recite it in the voice and tune of the sinful and people committing major sins; after me there will come people who twist their tune in reciting the holy Quran as the singers, mourners and the monks. It is not lawful to promote them; their hearts and the hearts of those who like their actions are turned upside down." I

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Ali Ibn Muhammad Al- nawfali has narrated from Imam Abi Al- Hassan,

peace be up on him, who said, "fine reciting tunes were mentioned before him, up on this he said, "Imam Ali Ibn Al- hussayn, peace be up on him, had a very fine reciting tune and whenever some would pass by when he was reciting the holy Quran, the person would stop in astonishment because of the Imam’s very fine reciting tune."

Abdullah Ibn Sinan has narrated from the holy prophet who said, "for every thing there is some ornament, the ornament of reciting the holy Quran is fine recital tune." Hassan Ibn Abdullah Al-tamimi has narrated through his father from Imam Ali Reza, peace be up on him, who said,"the holy prophet, peace be up on him, has said, "recite the holy Quran in nice tunes because it gives beauty to the Quranic recitation.” it is narrated from Jabir who said, "I asked Imam Abi Ja’far, peace be up on him, about a people who on hearing any thing about the holy Quran or the reward about it get shocked as such that even if the hands or legs of one of them would be cut he would not notice."The Imam, peace be up on him, said, "Glory be to Allah. This Satanic. They were not told to behave as such. It is only serenity, soft hearted, tears, fear and concern."

Abdullah Ibn Abi Ya’foor has narrated from Imam Abi Abdullah, peace be up on him, who said, "When one reads from the holy Quran is it obligatory for others to keep silent and listen to it?" The Imam, said, “yes, when Quran is recited you must keep silent and listen to it."

Ali Ibn Mughayrah has narrated from Imam Abil Hassan, peace be up on him, who said, "I asked him, "my father asked your grand father about read the whole Quran in one night." He said, "every night?" Then he said, "in the month of Ramazan." Your grand father asked him, "in the month of Ramazan?"My father said, "yes, sir, in the month of Ramazan if I could."

Then my father used to read the holy Quran forty times in the whole month of Ramaza. Then I after my father would read the hcly Quran some times more and some time less than him according to my time work, activities and laziness. On ’id day after the month of Ramazan, I would assign the reward for reading the holy Quran once for the holy prophet, one Imam Ali, one for Al-sayyidah Fatimah and one for each Imam until your self and I assigned the reward for reciting the holy Quran once for you from the time I am doing

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this. Will, sir, there be any thing for me in this?"The Imam said, "because of this, on the day of judgment, you will be with them."Allah is great! I said. This for me ! The Imam, peace be up on him, said, “yes. three times."

Sulayman Ibn khalid has narrated from the sixth Imam who has narrated that some youth from Ansar came to the holy prophet, peace be up on him, who said, "I want to read some thing to you whoever of you would weep Paradise will be for him and then he recited the last part of chapter thirty nine, "the disbelievers will be driven into Hell in groups....."Every one wept except one young man who said, "holy prophet, I tried to weep but no tears came out." The holy prophet, peace be up on him, said, "I repeat for you, if any one who would try to weep Paradise will be for him." He repeated and people and the young man tried to weep and they all went to Paradise." It is narrated from Imam Ja’far Ibn Muhammad from his forefathers who have narrated from the holy prophet, peace be up on them, who said, "you must learn the holy Quran in Arabic and be careful about ’Al-nabz’ which means the letter Hamza’. The sixth Imam said," ’ Al- hamza’ in the Quran is

additional except the original ’Al-hamza’ Faddara’tum."

as in

Al- khabaa’, Dif and

It is narrated from Aslami from his father who has narrated from the sixth Imam, peace be up on him, who said,"Learn Arabic; it is the language of Allah in which He spoke to His creatures and talked to the people of the past."

In Al- ’uddah it is narrated from Imam Al-jawad, peace be up on him, who said, "two people are never equal in religion or race but better among them

in the sight of Allah is the well disciplined one among them."I said, “we can find their discipline in the eyes of the people in their activities in the society but how we would know his discipline in the sight of Allah?"The Imam said, "by his reading the holy Quran the way it was revealed, by his prayers without mistakes; prayer with mistakes are not raised to Allah." Al- sakooni has narrated from the sixth Imam, peace be up on him, who said,

"the holy prophet has said, "a none Arab of my followers reads the holy Quran in his none Arabic way but the angels raise his reading in Arabic,."

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THE ISLAMIC SYSTEM In the name of Allah, the Beneficent, the Merciful.

Praise be to Allah and may peace and blessings of Allah be up on prophet Muhammad and his family and may Allah condemn their enemies. There is no doubt that Islam has a certain system and there also is no doubt that the Islamic system was working, completely applied or not, for thirteen centuries until about half a century ago when its down fall came to take place.

One also hears that the Islamic civilization was an exemplary one to a great degree and that the Islamic System has sufficient solutions to world problems and if is brought back the world will become Paradise all by itself. Then what is that system? Is it possible for an Islamic system to come back to life during the space and nuclear age? And how it would solve the problems if it did really became in charge of the society? The Answers that will be given to such question in this book may, some times, astonish the reader and will think that we are talking of some Utopian city. The author is ready to meet the challenge of giving such answers and to present Islamic proofs for such answers and he would prove that it is quite possible for the Islamic system to come back to life. I have written before, several books on this topic, both small and large and this book summarizes this issue.

(1)

POLITICS.

Question: Is there politics in Islam? Answer: Yes, Islam has the best form of politics to bring order in the society. Q. Is the Islamic system Democratic or imperial.

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A. It is not democratic nor it is imperial in the conventional sense . In fact, it is a form of consultative and advisory government and it would be correct to call it democracy. There is no imperial or heredity system of government in Islam. Q. Who would be the head of the Islamic government? Ans. He is a faithful person who has understood religion completely, knows about the worldly affairs and is armed the spiritual ability not to deviate from the standards of justice in all matters. Whoever may possess these qualities and the majority of people accept him, he can be the head of the government even uo to fifty years. Whenever he would loose any of these qualities he is removed from his position immediately. However, if the people would not agree with his leadership they have the right to change him and choose the one who possess those qualities. Q. Who chooses the Islamic head of government?

Ans. The majority of the people. Q. Is there elections, voting, parliament and municipalities in the Islamic system? Ans. Yes, it has all of these. The parliament is to enforce the laws and apply them to whatever they are applicable but it is not for legislating task.

Q. What the Islamic Government would do? Ans. It protects justice, in and out side the country and leads life to progress. Q. What are the laws that work in the Islamic government? Ans. The laws that are taken from the Book of Allah, traditions of the holy prophet, consensus and reason.

Q. Who gives these laws the final shape for practical purposes? Ans. The people who specialize in the study of the Islamic laws and who possess the spiritual ability not to deviate from the standards of justice who are scholars both in religious and worldly matters.

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Q. Are there political parties in Islamic system? Ans. There is no problem in the existence of parties that are introductory to the parliament which enforces the laws, but there is no party which would work as an introduction to a parliament that is a legislative parliament; legislation is in the hands of Allah, the Most High, only.

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THE

Question. Ans.

ECONOMY

Is there any system of economy Islam?

The best system the world has known.

Q. Is the system of economy in Islam, capitalist, socialist, communist or distributive? Ans. It is non of the above in the conventional sense.

Q. What is then the system of economy in Islam? Ans. It allows private ownership, provided one does not earn by unlawful ways and he pays all of his liabilities. Q. How the government will have money? Ans. It will have money through the taxes that Islam has properties.

sanctioned on

Q. What are the compulsory taxes? Ans. There are four categories of them: Khums, Zakat, Al-kharaj, and Al-

jezyah. Q. What do these things mean? Ans. Khums is the amount of taxes that the religious authority gets from the public at the rate of 20% of the net savings of a person in a year of all forms of earnings and the following means of earning: the minerals, found

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treasures, things achieved through diving into the oceans, the properties that may get mixed with unlawfully earned properties, the spoils of the battle field and some sorts of land.

Zakat is the kind of taxes the religious authorities receive one in the rate of one of out forty or one out of one hundred from cattle, cows, camels, gold, silver, raisins, barley and wheat.

Al-kharaj is the tax that the Islamic authorities receive from the non-Muslim tax payers.

Q. Is there any banking system in Islam? Ans. Yes, there is but without unlawful interests, provided, all the Islamic laws about it are applied and the expenses of its employees are met from

other incomes of the bank and if it will not be enough then the department of treasury would pay. Q. Would the Islamic government take other taxes like those that people pay today?. Ans. There will never be such taxes, besides the ones mentioned, except in the cases of emergencies, and as soon as it is over the normal condition

prevails.

Q. What the Islamic government will do with the money she receives from public? Ans. The Baytul Mal ( department of treasury) is to meet all the expenses of the Muslims, in addition, that the government will pay for the expenses of all the projects of reforms and developments of the country, help the needy to run their affairs so that there no needy is left in the society, like helping people to get married, start a business, buy a house, treatment of illness, travelling for necessity or one is left without money at a journey etc. The records will be kept and maintained in simple and easy ways and in this way there no needy will be left without help in the Islamic system of

government. Q. Will those four categories of taxes be enough for all such expenses?

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Ans. It will be enough the other natural resources of the government such as oil etc. Q. How it could be enough when we see today that all the big taxes still are not enough?

Ans. The number of government employees in the Islamic government will be just little, because, in the Islamic government there is no need for many of the departments and many of the jobs done today by the government will be done in the Islamic system of government by the public and what will be left | for the government will be done in a very little time and in the simplest way. When there is just a few employees and bureaucracy is reduced the expenses will be reduced and there will be more money available. Q. Is there any pension system in the Islamic system of government?

Ans. If one is needy and not able to earn he receives help for what he needs, not a fixed amount, as it is in governments today otherwise there will be no such payments unless some establishment requires it.

(3) Question.

THE ARMY Doe the Islamic system of government have an organized army?

Answer. Yes, it has an organized army in the best form. Q. Is there compulsory draft system? Ans. No, serving in the Islamic army is voluntary except in an emergency.

Q. How would that work? Ans. The Islamic government will arrange large training camps near every city with all the equipments needed for training to train the public all of them small and grown ups so that every one receives training and this would reduce the expenses for the army and members of the army would remain near their families and places of their work. Every one will attend training courses every day for some hours and then go for his own

Pais |

THE ISLAMIC SYSTEM 46 retardants ai ial al ies work. When there is an attack on the country every one rises to defend the Islamic government. Those who like to serve in the army they will receive

salaries so they can stay in the front line for defence. Q. What is the Islamic opinion about the modern tools of warfare? Ans. The Islamic system considers it necessary to have whatever possible as Allah, the Most High has said, "be prepared with whatever you could, of manpower and arms.."

Q. What the Islamic government will do for the relatives of those killed in the battle field? Ans. If they are needy and not able to make their living the government will help them with whatever they may need and if they are not needy they will not receive any thing unless there is a certain interest in helping them.

(4)

FREEDOM

Question. Is there freedom in the Islamic system of government? Answer.

Yes, there is the best form of freedom in Islam, a freedom of which

the world has not even dreamed of, and it is found only in Islam the best form of civilizations of the world. Q. What are the islamic freedoms?

Ans. There are may forms of freedoms and we will only mention a few in the following: 1. freedom in trade, in which every one can import or export goods and buy or sell without restrictions at all. There is no custom charges or tariffs and no conditions, however, the goods must be lawful for buying and selling and not things like wines etc., and that there is no unlawful interest involved or that the transaction is unlawful and trading does involve monopoly and hoarding and that it is not harmful to the Islamic government. 2. Freedom in agriculture

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One would be allowed to farm any amount of land and in any manner that he wants he would be entitled to it and there is no land reform in the conventional sense, in Islam. However, if the land is taken from the enemy by force by the government then the farmer has to pay a small amount of rent to the government and this rent is called Al-kharaj and if the farmer is poor the government must help him out. One is allowed to farm as much land as he can, provided, this will not seize other people’s opportunities. The government can not demand for more taxes other than Khums and Zakat with all the conditions required. 3. Freedom in technology, means one is allowed to develop the land in any way he wants and there will be no tariffs on such developments. The government will no right to make him pay even a single penny for the land or other things. Islam has said, "whoever develops the barren land it becomes his, except if the land would have been taken forcibly by the government from the enemy in which case the developer would pay rent to the government. Thus, there is freedom in all forms of technology to which the word ‘technology would apply except unlawful technologies. 4. Freedom in business and work, like hunting, mining, reserving the properties permissible to reserve and doing all kinds of lawful businesses in whatever way one wants and the government will not ask for any taxes for the land etc., however, it is not permissible to do those businesses that are not lawful in Islam.

5. Freedom of travelling and staying; one may reside or stay wherever he wants or travel wherever he wants and there will be no condition required of him, There is no boundary lines in Islam, no racial conditions, no discriminations due to color or language etc. With this freedom there will be no identity cards, permits and passports and other things related to this except, however, in the cases of necessity and the necessities are only for the time needed.

6. Freedom of activities of all forms and shapes except those prohibited in Islam, which are just a few and, thus, no secret police wili be needed, besides

the department for collecting information for the benefits of the government. There is freedom to speak, write, form organizations and corporations and publishing magazines, news papers, broadcasting etc. Q. Would the facts just mentioned require to dismantle many departments?

THE ISLAMIC SYSTEM

Ans. Yes, There will before that government

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48

and this is how an Islamic system of government would work. not be a lot of departments in it but just a few as mentioned because of much smaller number of government employees the will not have to struggle financing huge budgets.

DEPARTMENT OF JUSTICE.

Question. Is there government?

any justice department

in the Islamic system

of

Answer. Yes, a system of justice in the best form exists in the Islamic system of government. Q. How is the Islamic system of justice?

Ans. The judge must be a man of faith, justice and well versed in the Islamic laws and he will judge the cases without fees and he does not require complain applications and one judge will look into all kinds of cases to issue the Islamic verdict for each case. Of witness only those who possess the spiritual ability to uphold the standards of justice will be accepted. There is not a lot of time consuming routines, only one judge had been settling the case of a whole city of millions of population.

Q. Where from the judge receives his salary? Ans. He will be paid from department of treasury. Q. What exactly will be the job of a judge?

Ans. Through his assistants he would be involved in of the government. He would supervise the affairs the properties and affairs of the people who are not because of age etc., such as looking into the marital and the management of their properties besides people and executing the penalties and punishments

many of the departments of charitable properties, | independent, mentally or | problems of such people | settling disputes among | to be carried on. |

Q. Will there be any role for the attorneys in the Islamic system of justice?

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Ans. There won’t be a lot of such businesses in the Islamic system because it runs on much simpler grounds. Q. What the government will do for the attorneys who will not be needed in the Islamic system?

Ans. The system will provide for them other constructive projects and will pay them from the treasury to help them out until they are on their own. Should then those who are not given jobs by the system revolt against the system despite the fact that the system provides for them certain projects that would allow them to be on their own? The Islamic system abolishes unlawful activities in the society and finds lawful jobs for the people involved in such activities and provides them the opportunity to settle in the families. .

(6)

DEPARTMENT OF HEALTH

Question. Is there any health department in the Islamic system?

Answer.

Yes, it has the best of preventive and treatment systems.

Q. How does this system work?

Ans. Islam through a general guide line provides the following measures for the health care programs. 1. The preventive measures that help control the spread of disease. (a) It prohibits getting involved in matters that cause the disease, like Alcohol, adultery and music that bring anxieties etc.

(b) By the measures of general discipline in life and health like cleanliness, cleansing the circulating blood in the body by cupping and opening veins from time to time, fasting, use of certain ointments, marriage, introducing of certain medicine into the nose, the use of certain eye powders, use of lime as hair remover and manners of eating and drinking etc.

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2. Treatment of disease; by means of proper medicine and certain dietary procedures all of which are simple and easy. Such measures although may not be comprehensively adequate but they would stop the disease especially at the beginning, as it is mentioned in health guide lines of the holy prophet and the Imams, peace be up on them. 3. Supervision of the health care program includes close examinations of the physicians’ treatment of the patients. The Islamic law holds a physician responsible, even though being an expert, if any thing goes wrong with the patients and this alerts the physician against carelessness and makes him to realize the need for paying due attention when prescribing a certain medicine or diagnosing a certain disease. Q. Has not medical knowledge made a lot of real progress? Ans. There is no doubt about it, however, the basic ideas, in the health care field we mentioned, are certainly destroyed and, thus, we see mankind

afflicted with all sorts of diseases to the degree that the huge numbers of physicians and health care facilities are not enough to ease the difficulties, while we remember that our forefathers had enjoyed good health until the last days of their lives and today we see that every household has one or more people suffering from a certain illness and many people suffer from one or several illness. Q. What is the remedy then?

Ans. The Islamic health care program must come back and take charge of all the useful new methods and procedures of the health care programs today and remove all the unlawful things in it to open the way for the old medical programs to merge both the old and modern methods and in this way mankind will be saved from the grip of diseases and will not suffer because of devastating sickness.

(7)

EDUCATION

Question. Does Islam have any educational program?

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Answer. Yes, it has the best educational programs. Q. What are those programs?

Ans. It has made it compulsory for the Muslims, male and female, to acquire knowledges, provides the means for it and the government supports the program. Q. Why then the Muslims are so much behind? Ans. They remained behind from the day they abandoned the Islamic educational programs. At the time when they were following such programs they were much ahead in the field of education and there is no better proof for this than the western people’s own acknowledgements of this fact. The number of books, libraries, schools, and educated people, with regards to those days facilities, much more than the books, libraries, schools and educated people today with all the means and conditions available.

Q. Does Islam prohibit schools, news papers, televisions, radios and cinemas?

Ans. Islam prohibits unlawful, harmful and of evil temptations of such educational means if they would be free of such problems, Islam will be of the strong supporters of such educational means. Q. What are the major differences between the Islamic educational programs and the conventional educational programs today.

Ans. The general difference is that Islam combines knowledge and faith and excellence and the conventional educational programs has ignored faith and excellence and instead has mixed atheistic and immoral ideas in it. Thus,

knowledge which is the best means for progress, peace and security, has become a tool of degradation, destruction and distress.

(8) QUESTION.

PEACE Is Islam a religion of peace or a religion of war?

SVE

CE i AMEE IBRARY

sity cinnati Christi n Univer

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Ans. Islam is the religion of peace, as the holy Quran says, "believers, you must all enter into peace."However, if any one would commit an act of aggression against any one or against people, or against the Muslims, Islam then fights back to protect justice, truth and to repel the aggression.

Q. How Islam supports peace? Ans. In Islam it is necessary to let peace prevail both internally and externally. Inside the country it abolishes crimes and outside the country it does not commit acts of aggression against any one and it holds back the hands of the aggressors Q. How Islam would abolish crimes?

Ans. The causes behind committing crimes are: poverty, elements of evil temptations, ignorance, animosity and sufferings etc. Islam fights against all of such elements and when they are abolished crimes will be abolished consequently. A poor person, for example, steals to survive, careless women and liquors lead to adultery and crime. Ignorance causes transgression and animosity causes hurting others and murder. Family problems

cause

tribulation

and

crimes.

Islam

abolishes

poverty,

stops

unlawful display of sexual beauty and liquors, promulgates education and removes the causes of animosity and altercations etc., and settles problems with easy judgements and quick decisions.

|

_Q. How the criminals are punished in the Islamic system?

|

Ans. After abolishing the causes of crimes Islam comes down with stefo punishment up on the criminals. Because he has committed them due to his| meanness of nature and his deviation in the desires of his soul. With quick and stern punishment the environment is sterilized and crimes would 4 repeat. |

For example, four fingers of a thief are cut, after all the conditions for such| verdict are present of which one is not being a poor, no one would dare to| steal. For this reason, history shows that very few fingers were cut in all those| long years of the Islamic governments. Q. How Islam would do with jails?

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Ans. Islam knows that conventional laws are of no value at all. The only laws are the heavenly laws. Thus, many of the things called crimes today are not crimes according to Islam so that people would be jailed for them. Whatever is Islamically a crime, like theft or fornication, Islam has set a certain amount of quick punishments for them, like cutting the fingers and whipping. However, for smaller crimes there is jail in Islam, like a delinquent in paying his due debts. Jail is what the judge asks people to keep the criminal in a room of his home, for example. Thus, there is no jail in the conventional sense in Islam at all. In the case of urgent needs jails are built in simple forms.

Q. How Islam will keep peace out side the country? Ans. Islam does not allow transgression against any one at all. Whatever country would like to have peace, Islam also likes to have peace. The holy Quran says, "if they like peace have peace with them."If war is created, Islam deals with it in the most decent manners as the history has recorded its ° uniqueness. Whatever country would commit aggression against Islam it will repel such acts of aggressions.

Q. How Islam will keep peace between the people and the government? Ans. The government in Islam is the government of the people in the true sense. What the people would want except to have the right to vote, to be self-sufficient, be educated, free, be secure, healthy and excellent that Islam

provides for them in the best form? This is why Muslims had lived for so long. It was because of nation and the government. The leader did not protect him against the people except in the case

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the good governments of the the mutual love between the need security forces etc., to of emergency.

THE FAMILY

Question. What does Islam say about the family?

Answer. From the Islamic point proper Hijab (modest dress) as (women) ask from behind the strengthens the relations between

of view it is necessary for Allah has said, "if you curtain,"and this reduces the husband and wife and

women to have ask from them problems and the family lives

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in an environment of love and serenity. Hijab means that women must cover their hairs and would not let body and dress attract sexual feelings. Q. Does Islam prohibit women from learning and work? Ans. Never, Islam has not prohibited learning and work for women,it only has prohibited abusive and pervert manners and bedecking themselves in public. Islam also prohibits women from the kind of works that would be against their chastity and status. Q. What is the Islamic view about women?

Ans. According to Islamic view point, family life is incomplete without the hard work out side the house and peacefulness and work inside the house, therefore, it has divided the matter:

Mans share is outside and women’s

share inside the house, thus, the house is the best place to grow and develop physically as well as intellectually and emotionally. Islamic wisdom has found out that if women would start to undertake men’s works it would necessitate to leave the works inside the house for men and this would be a waste of two powers, waste of the noble emotions of women very vital for inside the house and waste of the work power of men required for the outside of the house. Work is work except that if turned upside down it gives undesirable results. For this reason it is best for women to do inside the house works.

Q. What is the Islamic view of marriage.

|

|

|

Ans. marriage is permissible after the age of nine for the female and after | mans adulthood which comes at the age of fifteen at which time getting| married is very much recommended so that they would not fall in indecency. —

Q. What is the Islamic view about young boys and girl’s mixing during, different phases of life? |

Ans.

It is not permissible at all, whether it is during recreational times, at|

school, factories, social gatherings and clubs etc. From the Islamic point of view such mixing would lead to immorally which requires the system to take quick preventive measures against it, unless the mixing is out of necessity | like those that take place during pilgrimage or Hajj.

Q. What are the duties of both spouse in life?

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Ans. The husband must provide all the expenses and satisfy her emotionally in accordance with the rules of Sharia. The wife must obey the husband in about going out of the house and her availability to the husband for emotional pleasures. It is not of the duties of women to work around the house. For marriage the consent of both the husband and wife is required. Divorce is in the hands of man alone unless a condition, set up in the marriage contract, entitles the wife to arrange for her own divorce. Q. What is the Islamic view about polygamy?

Ans. It is permissible in Islam to have up to four wives, but one must maintain justice among them. In this way the Islamic system solves the problems of maids and widows.

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THE SUPPLEMENT

1. The Islamic society has a special characteristic which other societies today do not have. That special characteristic is faith which control behavior as such that no other earthly system can ever do. And for this reason Islam gives a very sublime meaning to man while today’s world speaks of man in terms of iron and machines. In an Islamic society many psychological and today’s problems go away. Trust, love and kindness to individuals and the society will increase. 2. Life, in all dimensions, will blossom under the banner of Islam. Housing,

farming, industrialization, expansion of trades and growth of wealth in an environment free of injustice, restrictions and conditions and a society free of sufferings and poverty. For this reason, developments, love of progress and trust in each other in the beginning of Islam all were normal matters, a fact that no one has experienced today, even though there is an abundance of means to improve standards of living.

—— Pe

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SOME ADVANTAGEOUS MATTERS (1) LIST OF THINGS PROHIBITED IN_ ISLAM. Allah, the most High says in the holy Quran, "Muhammad, say, "let me tell you what your Lord has prohibited to you." One should know that as it is necessary to know what one’s obligations are in the same way one should know what are the things prohibited so that one would stay away from them. For this reason we have listed in the following the matters that are prohibited and one encounters them often in one’s every day activities:

(1) Helping others to commit sins. (2) Helping others to commit injustice. (3) to become unconcerned about the wrath of Allah. (4) To deny miracles. (5) To deny the life to come or one of the principles of religion. (6) To deny such religious matters that are unanimously accepted. (7) To refuse to commemorate the holy names of Allah. (8) To make fun of the believers. (9) To be extravagant. (10) To persist in committing smaller sins.(11) Wearing gold ring for men. (12) To discharge ones own semens without lawful sex. (13) To hurt the believer (14) To disregard the rules of Sharia> (15) Using gold and silver utensils even for decorating reasons. (16) To look down up on the Muslims. (17) To publicizes some one’s secrets without his consent. (18) Publicizing of the spouses each other’s secrets. (19) Wife’s disobeying her husband when necessary obey. (20) children disobeying the parents. (21) Betting with mihbas (a form of gambling).? (22) To confess one’s sins. (23) To publicizes indecency. (24) To break an obligatory fast such as due to a vow or fast during Ramazan without good reason. (25) Hoarding goods needed by the public. (26) Not keeping oneself clean from urine and other unclean substances. (27) Protesting against Allah’s plans. (28) To order other to sin (29) Hurting the neighbors. (30) To some degree, accepting payment for religious obligations that has to be carried on by one person. (31) Seeking support of the unjust people. (32) Endangering one’s own life.

(33) Relating a child to some one other than his natural father. (34) Women’s going out of the house without the permission of the husband. (35) Kissing of man or women strangers of the opposite sex. (36) Kissing of a person an other person with lust, except the spouses. (37) Innovating in

THINGS

PROHIBITED

57.

religion (39) Having bad opinion about people and acting up on it. (40) To accuse people. (41) Facing or turning one’s back to the direction of Ka’ba during using the rest room. (42) To consider oneself greater than to worship Allah. (43) Men’s decorating himself with gold. (44) To practice, to some degree, astronomy in the sense that star’s movement have so and so affect on people’s behaviors etc. (45) To be haughty. (46) Giving up obligatory prayers. (47) Giving up any other obligation. (48) To delay performing Hajj from the year it becomes obligatory. (49) Rejecting the holy Quran or rules of Sharia. (51) Not assuming the state of Ehram ( getting ready to perform Hajj or Umrah). (52) To be a spend-thrift (53) Delaying prayer until its time is over. (54) Asking judgment from an unjust person without need. (55) Attending useless games. (56) Women’ bedecking for strangers. (57) To subdue ghosts, Jinns and angles. (58) Mesmerizing. (59) Confusing, to some degree. (60) Delaying to make the fasting missed during Ramazan. (61) Not performing one’s duty of making people to do good and stay away from bad deeds. (62) Not disciplining one’s children that would lead them to corruption. (63) Making the lawful unlawful, (64) or vice verse. (65) Changing one’s will. (66) Spying on other’s shortcomings. (67) Frightening a believer. (68) Not observing Tagqiyah ( not to show one’s faith when needed) (69) Making oneself look like disbelievers, in their dressing etc. (70) Wounding or cutting some parts of some one’s body.

71. Not to answer Salam, greeting. 72. Giving judgement against the orders of Allah. 73. Seizing the rights of Allah. 74. Seizing the rights of people. 75. Jailing some one for no reason. 76. Wearing silk for men without good reason. 77. To be jealous and to act up on it. 78. Spoiling people’s rights. 79. Keeping, buying, selling, teaching and publicizing misleading literature. 80. Consuming the property of the orphans. 81. Drinking intoxicating liquors. 82. Consuming for food dead animals. 83. Consuming for food pork. 84. Consuming for food animals not edible.

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85 Consuming the flesh of animal slaughtered without the mention of the name of Allah or some other conditions missing. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99.

Eating soil or other things prohibited. Breach of one’s trust. Buying, selling or using the instruments of useless games. To deceive. Proposing marriage to a married woman or during her waiting period after divorce. Eating the testicles of cattle. Eating other inedible parts of the animals. Buying and selling of fighting dogs and swine. To rebel against the Imam, Divine leader. Eating and drinking of unclean or that which has become unclean. Lying against Allah, the prophet or Imams. Playing drums, except in wedding with certain conditions to observe. Stealing. preach falsehood.

(2) . To work as a pimp. Lying. To become a member of parties of falsehood, like communism etc. . Accepting false religious,like Sufis and Babis etc. . Animosity towards believers. . Friendship with the enemies of religion except in case of necessity. AnNPWNR 7. Abusing, Allah, the prophets, the Imams, religion, holy books, religion and other sacred things such acts as committed by some ignorant and corrupt people and some of such acts could even be disbelief apostasy, may Allah grant us refuge from such acts.

8. Touching the holy Quran without formal purification, Wuzu. 9. To paise one in his presence and abuse him in his absence. 10. Abusing a believer, accept or giving bribe to hide a truth or make some thing false prevail.. 11. Accepting or giving bribes in governmental affairs except in necessity.

=

yn B

THINGS

PROHIBITED

59

12. Lecturing unauthentic stories of the tragedy of Karbala, or about some sort of the circumstances therein. 13. Taking and giving unlawful interest and brokerage about it. 14. Migrating to places where one’s religion would be endangered. 15. Robbery. 16. Shaving one’s beard. 17. Performing the acting of shaving others beards. 18. Dancing. 19. Taking part in conventional races unless they meet all conditions approved by Sharia. 20. Going to schools that would lead one to evil. 21. Going to swimming pools, public, places and schools where male and females are mixed without Hijab. 22. Rejecting the orders of the scholars in their Shar’i verdicts.

23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43.

To consent in sins. Fornication. Beating some one for no reason. beating one’s children in excess of discipline. Accusing some one of fornication. Talebearing. Listening to talebearing. Going to the cinema that leads to evil. Working to destroy the mosques. Slandering some one before the unjust people. Manufacturing tools of gambling, crosses, and useless games. Practicing magic. Closing the road of the Muslims. Disgracing a believer. Considering one’s sins not seriously as such that would lead to disregarding repentance. Women’s going out of the house without Hijab. Considering things as partners of Allah. Publicizing indecent acts. Doing against one’s oath. Breaking one’s covenant. Presenting false testimony.

44, Betting in ways other then those mentioned in the section of Islamic laws

about sharp shooting and horse racing.

ISLAMIC

45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83.

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Playing tricks of conjurer. Playing chase. Drawing pictures of living things of man or animal. Betraying ones dependents. Playing and flying things that lead to evil. Oppressing and transgression. Al- Zuhar, declaring that one’s wife will be like the back of one’s own mother. To displease one’s parents. Women’s making her husband love her by means of magic etc. Getting angry for false reason. To be self praising about one’s own worships. Cheating. Singing and listening to it. Usurping. Getting angry that leads to evil. Backbiting and listening to it. Spreading corruption on earth. To spread scandals. Sins and adultery. Selling the holy Quran. Selling arms to disbelievers. Astrology, to some degree. Gambling. discontinuing obligatory prayer. False swearing. To work as a pimp. To isolate oneself from one’s relatives. Believing that Allah has children. Soothsaying. Flying pigeon that would lead to evil and sin. misleading people away from Allah. Killing for no reason. To marry one’s blood relatives or relatives by marriage or breast feeding. Not taking part in Jihad, (defence). Fleeing from battle field. Disbelief. Earning by unlawful things and means. Cheating in weighing and measuring. Hiding the testimony.

THINGS

84. 85. 86. 87.

88. 89. 90. 91.

PROHIBITED

61

Hiding the truth. To make oneself resemble a chest woman or a boy. Slandering a believer in poetry etc To uncover one’s private parts of the body before people who are not allowed to look at them. Sex with men. Playing useless games, to some degree. Touching the body of strangers, male or female. Touching others with lust, except one’s spouse.

92. Use of intoxicating, drinking, selling, buying and farming, making, using its money, taking it from others, renting property for it or using it in other ways like for curing unless it is a necessity 93. Going against one’s vow. 94. Doing things prohibited during Hajj. 95. Seeking help from astrologers, magicians, soothsayers, those who control Jinns etc., conjurers and those who do such works by looking into the water or pots, finger nails or eggs etc., hypnotizing, those who call the spirits and such people. 96. Women’s associating each other with lust. 97. men’s associating each other with lust. 98. Refusing to pay religious taxes such as Khums, Zakat or other obligatory rights. 99. Delaying the rights.

(3) 1. Women’s shaking hands with stranger male. 2. Disputing with Allah, the prophets and the Imams, peace be up on them. 3. To be double-faced. 4. To get intoxicated. 5. To dispute with Allah and the rulers. 6. To cause difficulties for the prophet, peace be up on him. 7. Blasphemy, especially, in the house of Allah. 8. Preventing people from going to mosques. 9. To be a Lesbian. 10. Making statues, buying, selling and promoting them.

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11. Staying in the mosques before doing ghusl, after sex and menses or child birth. 12. The above peoples passing through the two grand mosques. 13. Making the mosque unclean. 14. Mourning for false reasons and listening to it. 15. Confining young people for indecent acts. 16. Looking at the private parts of others, except the spouses. 17. Looking into the houses of neighbors without permission. 18. Sitting at a table where wine is served. 19. 20. 21. 22.

23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38.

Creating schism. Stopping from doing lawful things. Playing Dice. Sitting with those who indulge, meaninglessly, in talks about the signs of Allah. Mans not having sex with his wife for more than four months. Having sex with a girl less then nine years. old. To become hopeless of the mercy of Allah. Accusing some one of fornication, sex with man or lesbianism. Looking at a none relative woman. Looking at boys or relatives with lust. Exhuming. Praying, prostrating and kneeling for some thing other than Allah. To become employees of the unjust people. To disgrace the holy Ka’ba other holy places and objects. Sitting with people who make innovations in religion, to some degree. Abandoning believers, to some degree. Not learning the principles and rules of religion. Learning false subjects on falsehood, teaching to other than those who want to refute them. Not teaching principles and rules of religion to ignorant people. Swearing to disassociate oneself from Allah, the prophets, the Imams and the religion of prophet Muhammad, peace be up on him.

39. Reaching a religious rule by ways other than those permissible in religion. 40. Torturing to get confessions.

It should be noted that some of the matters prohibited are included in other items, but we mentioned them separately either because of the seriousness of

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63

the issue or because of a special verse of the holy Quran or some Hadith about them.

Some of these prohibited matters lead to disbelief, some to considering things equal to Allah, some are of the major sins, some require ransoms and warning or punishment as are mentioned in the proper sections of the laws of Sharia. (2) EVIL MATTERS IN MORAL DISCIPLINE.

The abominable habits and moral traits that should be avoided are many. The scholars of ethics have mentioned them in their books but we only will

mentione most of them even some of them, according to Sharia are prohibited. We Ask Allah, the Most high for help in such acts that would lead us to His pleasures: 1. Seeking revenge. 2. Boasting about oneself. 3. Hurting others even though an act causing it may not be unlawful, such as building one’s house that may block the neighbors house from getting sun shine.

. Insulting others but not in unlawful ways. . looking down up on people. . Frightening people not to the unlawful degrees. . Publicizing matters that should have been kept private. . Lying when joking. OONANKL . Making fun of others.

10. Causing inconvenience to others like stretching oneself next to others in a small place. 11. Taking the virtuous matters lightly.

12. Accusing some one of some thing in a joke, like calling some one a big eater. 13. Taking things that are not one’s concern. 14. Having trust in people. 15. Doing use less things.

ISLAMIC

16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33.

34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54.

LAWS

OF WORSHIP

Spying around for things that are not one’s business. Expressing impatience in hardships. Acting carelessly around the things that are disliked. To become sad about worldly things. To be unconcerned about the matters related to next life. Love of being praised. To love to become the leader or high position. Love of property. Love of the world. To be jealous. To be greedy. To burden others. To be rancorous and vindictive. To be afraid of people. To be curious about evil things. To confine oneself in particular matters about, clothing and house etc. Ignoring one’s promise. To show off even in non-worship matters. To be pessimist about Allah. To be pessimist about people. To be hot tempered. To have bad appearance. Involving one self in matters other than the unlawful ones. Not to be happy about one’s destiny. Keeping company of lowly people. Complaining about affairs of life. To be stingy. To have excessive sexual lust. To be malevolent. To have inferiority feelings. To be mean and low. To avarice To sleep a lot. To have long worldly hopes. To have no self respect. To who self respect unnecessarily. To be hasty. Hostility below the unlawful limits. To be very optimistic about one’s own soul.

55. Discrimination like those of the pre-Islamic habits.

64

1

Seti: ISLAMIC 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

LAWS

OF WORSHIP

Not to respect the elders. Not to be kind to the children. Not to have trust in Allah. To get angry without Shar’i reasons. To be too wealthy that would lead one beyond good manners. Boastfulness. To live unaware. To make fun of others problems. Use of bad words even below unlawful limits. To cause calamity. To be hard hearted. To be apathetic. To be haughty.

69. Hiding the truth even to make public would not be necessary and hiding would be just because of one’s silence. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85.

To consider one’s own good deeds a lot. To consider other’s good deeds little. To consider other’s bad deeds a lot. To consider one’s own bad deeds little. To be ungrateful. To be unthankful. To joke a lot. To be inconsistent in one’s in and outside, even in worldly matters. To be insolence. Avoiding a believer. To be lazy and no work. Laughing a lot. To have evil thoughts and suspicion, even in worldly matters. To be too busy in earning. Not to observe cleanliness. Not to be fair.

86. 87. 88. 89. 90. 91. 92.

To be an extremist. To be too much indifferent. Associating with sinners. Not to care for recommended matters. Persisting in detestable matters. Not to care for what is said for or against him. Not to care for the rules of Sharia.

65

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(3)

EXCELLENT MORAL ABILITIES GOOD QUALITIES.

66

AND

. To have confidence in the promises of Allah. . Not to be hasty in one’s affairs. . To consider oneself unimportant before Allah. . To have fairness. . To be independent of people. . To be self abnegating. . To spend for the cause of Allah. . To help people. . To train oneself in good matters. PE OSBNNAUKHSPWN 10. To make others to do good deeds. 11. To stop others from doing abominable things. 12. To bring reform among people. 13. To be sincere in one’s deeds. 14. To be comfortable with Allah. 15. To be good to one’s parents. 16. To be humble. 17. To visit friends. 18. To be friendly. 19. To repent from unlawful things that Allah dislike. 20. To submit oneself to the orders of Allah in all matters. 21. To have trust in Allah. 22. To be steadfast in good deeds. 23. To be forbearing. 24. To be good and friendly. 25. To protect the rights of the neighbors. 26. To love Allah and those whom He has ordered to love. 27. To love because of Allah. 28. To dislike because of Allah. 29. To have fear of Allah. 30. To have hopes in Allah. 31. To be afraid of sins. 32. Not to have all hopes in deeds. 33. To be considerate with people. 34. To be nice with oneself.

EXCELLENT

ABILITIES

35. To be nice with the family and children. 36. To agree with destiny. 37. To forsake worldly pleasures. 38. To be respectful. 39. To be protective of people. 40. To correct people’s mistakes. 41. To be pleasant in one’s speech. 42. To be thankful of the bounties. 43. To reform people with sweet language. 44. To spent much in charity and help the weak. 45. To maintain good relations with one’s relatives. 46. Not to publicizes people’s shortcomings. 47. To reach-out to the weak, sick and the orphans. 48. To say Salam, greetings, loud and clear. 49. To be clean. 50. To be the same in out side and in side in all matters. 51. To be truthful and stay away from lies even in joking. 52. To have patience. 53. To entertain gusts. 54. To accept invitations. 55. To give and accept gifts according to reasonable practices. 56. To forgive people. 57. To be chest. 58. To have justice in all matters. 59. To have reverence to religious people. 60. To stay away from lowly people. 61. To have courage. 62. To love the poor. 63. To work hard against the desires of one’s soul. 64. To give loans. 65. To help the believer when he needs. 66. Not to disturb them.67. To keep a secret and not to publicizes it. 68. To mention people with good names. 69. To hurry in doing good deeds. 70. To bring one’s soul into account. 71. To give good advise to believers whether they ask or not. 72. To intend to do good things. 73. To cleanse one’s soul and wipe off believers short comings from it. 74. To be pious. 75. To have godliness.

67

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76. To avoid doubtful matters. 77. To be content. 78. To be bashful.

79. To have a happy face.

(4) SOME

IMPORTANT HADITH REPENTING

ABOUT

It is narrated from the holy prophet who said, "there is no dawn of a day or sunset of a night when two angels would not talk to each other about man in four voices: one says, "I wish these creatures were not created.’ The other says, "I wish, since they were created, they knew what for they were created."The other then says, "If they did not know what for they were created, I wish they would practice what they knew."The other angel then says, "when they would not practice what they knew, I wish they would repent for what they have done."

it is narrated from Imam Ali, peace be up on him, who said when some one in his presence said, "I ask Allah to forgive me.", "may your mother cry for you. Do you know what this means? Asking Allah to forgive is of the high ranking people’s manners and it applies to six kinds of meanings: the first one is to regret for what one has done in the past. Two is to firmly decide to never go back to such act again. Third is give back the rights of the creatures to them so one can meet Allah free of all liabilities. Fourth is to make for all the obligations that one have missed. Fifth is to let the flesh that has grown from unlawful foods melt for worries of sins until the skin sticks to the bones and then new flesh grows between them. Sixth is to let the body feel tired for worshipping as it had enjoyed the pleasures of sins. Then you say, "I ask Allah to forgive me." In an other Hadith it is narrated from the sixth Imam, peace be up on him, who said, "guard yourselves against sins taken lightly; they will not be forgiven."When the Imam was asked, ’ what are the lightly taken sins?"H e replied, "A man sins and says, "I will be lucky if I will not do other sins." Imam Ali, peace be up on him, has said, "the worst sin is the one which taken

lightly by the person who committed it.”

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The sixth Imam (a.s.) has said, "I swear by Allah that Allah will not accept any worship when they are done with the persistence of the worshipper in sins and disobedience to Him.“

ABOUT

THE

PRAYER

AT

NIGHT

(TAHAJJUD)

There are strong recommendations about praying the night prayers, in the Hadith of the Imams, peace be up on them. These prayers have eleven Rak’ats: Eight of which are called night prayers. The other two Rak’ats are called Shufa and there is one more Rak’at called Al-witr.

The time for this prayer starts after midnight and ends at dawn. Every two Rak’at end with a Salam except for Al- witr which is one Rak’at and ends with Salam. It is desirable to read Qul hu wallah.. thirty times in each of the two first Rak’ats and in the other Rak’ats it is recommended that one of the long chapters of the holy Quran be read, like chapter fifth, eighteenth chapter twenty first if the time would allow. In reading the long chapters it is desirable to read the longest in the first Rak’at and the next longest in the second Rak’at. It also is desirable to read chapters 113, 114 and 112 in the two Rak’ats called Al-shufa and the one Rak’at A-al-witr or chapter 112 in all of them, and pray for forty believers in the Qunoot of Al-witr, saying,”

O, Allah forgive so and so, mentioning the name of the believing persons in place of so and so. Ladies and children are not counted of the forty people. It also is desirable to say in this qunoot Al-Istighfar, forgiveness phrase, seventy times, but it is better to say it one hundred times. During qunoot and in AlIstighfar one should raise his left hand and count with his right hand. It is even more better in Al- istighfar to say, "Astagh firullaha min jami’i zulmi wa jurmi wa israfi fi amri wa atubu elayhi."I ask Allah to forgive me all my unjust deeds, crimes and my exceeding the limits in my affairs and I repent to Him."It also is just enough to say, Astaghfirullaha Rabbi wa atubu elayhi."

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It is desirable to say seven times, "haazaa maqamu AIl-’ai’z bika min annar." At this place I seek refuge in You from fire."It also is desirable to say three hundred times, "Al-’afw " and if reciting continuously one should say, "al-’af wal ’af wal ’af, and so on.

(1) PREFERABLE THINGS LIKE CIRCUMCISION

ABOUT CHILD BIRTH, AND FEASTING ETC.

It is desirable to give the new born a shower, say Azan in his/her right ear and Eqamah in his/her left ear. Let the child test some water from euphrate river and name him/ her on the seventh day. It is recommended to shave his/her head on this day and give in charity gold or silver equal to the weight of the child’s hair. If shaving is not done on the seventh day then the recommendation would not exist. It also is recommended that on the seventh day a feast should be made on sheep, or camel.

The bigger the animal the better it would be. It is recommended that one leg and thigh should be given to the nurse. If there is no nurse then it should be given to the mother and she gives one forth to whoever she wants. If the nurse would be a Jew who would eat from the animal slaughtered by the Muslims, one forth of the price of sheep will be given to the nurse. It is recommended to give some of the sheep in charity and prepare the rest as food for ten believers. Inviting more people would be better. Some scholars have given Fatwa, (opinion) about it being compulsory but its being optional is more clear, as mentioned before.

It is desirable to circumcise the child on the seventh day and if guardian did not do it, it will be obligatory for one to get circumcise when one grows up. The scholars have said it and that it is on the basis of consensus and in the Ahadith there are indications about it.

It is preferable to read the following circumcision:

prayer during the operation of

"O, Lord, this is your tradition, and command

and the tradition of Your

prophet,peace be up on him and his family, and our obedience to You and Your prophet, because of Your pleasure, Your will and Your plans for the matter that You have willed and the plan that must be carried on and the

n

ABOUT

CHILDBIRTH

aA.

order that you have executed that he should feel the heat of iron in his circumcision, and cupping because of the fact that You only know better than me. O, Lord, cleanse him from sins, increase his life and protect him against

losses and pains in his body and grant him wealth and protect him against poverty because You know and we do not know. It is narrated from the sixth Imam, peace be up on him, who said that it is preferable to read the above prayer on the child before his maturity if not already done during the operation. of circumcision because Allah protects him against the heat of iron by getting killed etc.

CR # 1. If the feast is not done on the seventh day it is preferable to do it any time in one’s life, in fact even after one’s death also. CR # 2. It is better that the feast should be on a male animal for a male child and on female animal for a female child. Feasting on a male animal is also enough in all cases. The presence of the conditions for the animal for sacrifice during Hajj is not necessary. If the animal would not be found one should wait for it and paying its price is not enough.

CR # 3. It is permissible for the parents to eat from the feast but it is detestable for them to eat, in fact, it is detestable for all the dependents of the parents to eat from the feast and the detestableness is stronger on the part of the mother. Some people have said that if the mother would eat she then should not breast -feed the child.

CR # 4. It is better to make pieces but not break the bones and there is no proof to support the need to burry the bones as the public does.

CR # 5S. It is permissible to dived the feast and give a portion to the neighbors, however, it would be more better to prepare it into food, invite some of the believers and serve it to them. CR # 6. ’aqiqah is not only for the poor, it is permissible to give from it to the wealthy also. It could also be given to sayyids,( people from Bani Hashim) even though the feast is for non-sayyids.

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CR # 7. If the father may not have given the feast‘ ’agiqah’ for the child, it is preferable for the child to give ’agiqah for him / herself and the sacrifices are good enough for this feast. CR # 8. If the child survives until the seventh day, it would be preferable to arrange ’aqiqah for him / her even if the child would die in the after noon of the seventh day from the time of birth, but if the child dies before the noon time of the seventh day from the time of birth then there will be no need to do ’aqiqah.

(2) The most virtuous and the best milk for a child is the mothers’ milk but it is not necessary for her to breast-feed her child. Providing food for the child is the duty of the father, thus, it is permissible for the mother to get paid for breast feeding her child, however, if the father is not alive or is not able to provide food then it is mother’s responsibility. CR # 9. If the child would have some property, it is permissible to pay for the child’s food from that property and providing food will not be necessary for the father. CR # 10. It is preferable to breast feed the child from both sides of the breast. CR # 11. The total breast-feeding time is for two years. It is permissible to make it three months less but to reduce more than that is not permissible except in the case of necessity. According to Ihtiyat, precaution, breastfeeding should not go beyond two years, although some scholars permit it up to two more months.

CR # 12. The mother is the most proper person to breast-feed her child for the whole breast-feeding time if she would do it free of cost or she would not charge more than others, in which case it is not permissible for the father to separate the baby from the mother, however, if she would charge more than others then the father is allowed to give the child to some one else for breastfeeding.

CR # 13. Mother has the right to look after the child for two years, in the case of baby boy and seven years, in the case of a baby girl, if the mother is a

ABOUT

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Muslim, free, intelligent and trust worthy and that she is not married to some one other than the child’s natural father, in which case the father is not

allowed to take the baby away from the mother. CR #. 14. After the above mentioned times it is the right of the father to look after the child and if he dies the said right returns to the mother, according to Ehtiyat, precaution, and the executor of the will, will not be allowed to

interfere in the mother’s

right. Allah the Most

High is

Omniscient.

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TAQLID (FOLLOWING THE FATWAS) FOREWORD Certain terms will often be seen in this book. The readers unfamiliar with the meaning of such terms, in the context of this book, may not have the desired

benefit from their translations. Thus, an explanation will help them to have a better and more clear idea of the applications of such terms, A specialist in the Islamic Laws, ’Mujtahid’ and the collection of ‘fatwas’ are the ones which require a detailed explanation more than any other terms, The translation of a Mujtahid as a good enough, but if one would know doubt realize the difference between from the translation of the term and

specialist in the Islamic Laws is almost how one becomes a Mujtahid, he will no one’s idea about a 'Mujtahid’ perceived what takes one to become a 'Mujtahid’,

One may summarize what a Mujtahid faces during his task of Ejtihad into; environmental obstacles; the subject matter of Ejtihad and the achievement of moral and learning credentials. We do not have to mention what a Mujtahid has to study before he enters into the substance of the subject, the study of the texts or the sources of the Islamic Laws, for the study of the philosophy of language, general history, the history of learning, general logic, and philosophy and the philosophy of social Laws and jurisprudence all are common knowledge. A student and one with some experience in education can easily tell us what takes one to satisfactorily study these subjects, The earliest time to complete one’s courses of Ph. D., as we know, is in one’s

late twenties. A Mujtahid before entering into the substance of the subject of Ejtihad must be able to form out of his studies of the subjects mention above, a world pattern purely Islamic and acceptable to the Islamic philosophy and theology, The subject of Ejtihad has two main branches; the principles of jurisprudence (usulul fiq) and Laws, (Shari’a). It is beyond the scope of this brief foreword, to present to the readers an account of even the smallest topics from the subject of Ejtihad because of their technical nature and complicated forms, Our only choice would be to simply describe (a) what a student of the subject

= a TAQLID

75

of Ejtihad does during all those years and (b) how he achieves learning credentials. It takes one six years from the day he attends classes on the subject of the principles of jurisprudence to the end of this subject. After this if he is lucky, and had not dropped out, he starts teaching the same subject to others. Practically, such people form a very small percentage of the students attending with him on the subject. In the school of Najaf, Iraq or Qum, Iran classes and teachers of the subject of the principles of jurisprudence are not restricted or limited. Anyone capable of teaching may start a class anywhere in some Mosque anytime. There no other factors exist to make the students to attend the lectures of a certain teacher on the principles of jurisprudence except the degree of the teacher’s knowledge of the subject and his communicating skill. Because of the kind of freedom students are free to attend any class anywhere and find the teacher of their choice. The best teacher will have the greatest number of students attending lectures. There are people who start lectures on the subject and one may few people attending his lectures but not very long after one can see no attending his lectures but the teacher himself. If a teacher can prove capability in the subject, more people will attend his lectures.

his see one his

Also, if a student who attends the lectures of a teacher can raise relevant

question and challenge the teacher’s ability of presenting evidence in support of his point, he also will have potential credit for his intelligence and it may damage the learning credentials of the teacher. In this way at this stage every one’s learning credentials practically become public to the intelligent students. If a lucky teacher can complete teaching this subject by the help of using the text books on the subject, which is very rare to happen, he then starts lectures on the same subject without using a text book in the class. Text books on this subject are numerous and of different styles. Traditionally the specialist on this subject would always express their own new findings in the matter in the form of footnotes and explanations to the existing text books of the most scholarly and technical styles. But since the early sixties the prominent scholars have changed the tradition of footnote writing into independent form of scholarly works on the subject.

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TAQLID (FOLLOWING THE FATWAS) FOREWORD Certain terms will often be seen in this book. The readers unfamiliar with the meaning of such terms, in the context of this book, may not have the desired benefit from their translations. Thus, an explanation will help them to have a better and more clear idea of the applications of such terms. A specialist in the Islamic Laws, ’Mujtahid’ and the collection of ’fatwas’ are the ones which require a detailed explanation more than any other terms.

The translation of a Mujtahid as a good enough, but if one would know doubt realize the difference between from the translation of the term and

specialist in the Islamic Laws is almost how one becomes a Mujtahid, he will no one’s idea about a "Mujtahid’ perceived what takes one to become a Mujtahid’.

One may summarize what a Mujtahid faces during his task of Ejtihad into; environmental obstacles; the subject matter of Ejtihad and the achievement of moral and learning credentials. We do not have to mention what a_ Mujtahid has to study before he enters into the substance of the subject, the. study of the texts or the sources of the Islamic Laws, for the study of the philosophy of language, general history, the history of learning, general logic, and philosophy and the philosophy of social Laws and jurisprudence all are common knowledge. A student and one with some experience in education can easily tell us what takes one to satisfactorily study these subjects. The earliest time to complete one’s courses of Ph. D., as we know, is in one’s | late twenties.

|

A Mujtahid before entering into the substance of the subject of Ejtihad must f be able to form out of his studies of the subjects mention above, a world pattern purely Islamic and acceptable to the Islamic philosophy and theology. | The subject of Ejtihad has two main branches; the principles of jurisprudence (usulul fiq) and Laws, (Shari’a). It is beyond the scope of this brief foreword, to present to the readers an account of even the smallest topics from the | subject of Ejtihad because of their technical nature and complicated forms. Our only choice would be to simply describe (a) what a student of the subject

TAQLID

eh

leaving untouched any of the others’ views in every single topic, regardless of how many they may have been, and accurately analyzing and answering them as well as teaching the whole text of Shari’a which re4required much more pains-taking scholarly work, sharper intelligence and a longer time then will be called a ’Mujtahid’, Mujtahids are practically different from each other. A Mujtahid in the sense just mentioned does not practically publish his legal view points in a book form called one’s collection of ’Fatwas’. Only those who have successfully completed their lectures on the sources and texts of the Islamic Laws in the light of the principles of jurisprudence which usually takes one about eight to ten years, provided, their other credentials are well established have the right to publish the collection of their legal views. The amount of labor require in The final stage can some how be figured out from the volume of literature involved. (1) The scholarly examination and study of hadith, ie. 34000 statements published in the form of Was’il Ashshi’a in more than twenty volumes each having at least 500 pages. (2) The biography of all the thousand of narrators of these Ahadith also published in more than twenty volumes. (3) Also using one’s final view points formed out of his studies of the principles of jurisprudence to make sure that the utmost possible scholarly effort is made in issuing a final decision about each single legal rule. At the final stage the degree of criticisms and challenges of the intelligent students against the points in the lectures of an Ayatullah, a grand Mujtahid, becomes greater than ever for a student who can raise relevant objection at this stage has to be learned enough, who on the other hand at the same time will receive a great degree of credentials for his learning ability, also, as part of the system it encourages a Mujtahid not to leave unchecked all the possible questions against his ’Fatwas’, final decision in the legal rules. No single rule in this book is recorded without being examined in the light of the principles of Ejtihad, the results of the above mentioned long years of scholarly efforts, and in the best possible logical manner. Although, every Mujtahid forms each single rule of the collection of his ’Fatwas’ independently and uses all the relevant principles to clarify each rule and make sure that no doubt what the Islamic Shari’a requires people to do or stay away from. In practice, most of the rules in this book coincide with the ’Fatwas’ of all the Mujtahids. Only a small number of them which are mostly abstract one’s may not coincide the ’Fatwas’ of all the Mujtahids.

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Since we know that with regard to the latter case all the rules in this book coincides the ’Fatwas’ of Ayatullah Sayyid Muhammad Shirazi of Qum, Iran for this reason we have said that the rules in this book coincide the ’Fatwas’ of Ayatullah Sayyid Muhammad Shirazi.

ENVIRONMENTAL

OBSTACLES

There are few Mujtahids because of the following reasons: (a) Ejtihad is the stage of the highest Level of human ideological thinking at a given time. It is natural that starting from zero, that is, human childhood to reach to such level is a long way to go with so many obstacles on the way. Ph. D. has something common with Ejtihad in terms of thinking but Ejtihad has much more than Ph. D. as regards the quality and quantity of knowledge and thinking. This is one reason which makes Ejtihad so rare. (b) The subject of Ejtihad is an abstract thinking which makes it difficult to get through. It is not easy to organize the ideas analyzed through the years and years of hard work and put them together, coincide and apply them to particular purposes. An accord between the analytical and synthetic process in a system requires a properly educated mind. This is another reason why it makes it difficult for one to get through the subject of Ejtihad. (c) The conditions demanding a certain standard of moral discipline are other factors contributing to make it more difficult. A Mujtahid is required by the system of Ejtihad to carry on this task as a social obligation which means that one has to do the work without any intention to have worldly _ gains thereby like to become famous, or get to the post of Leadership or have greater part in the material gains of life. A Mujtahid is required to have the best possible accuracy in his ideas and practice if he likes to be a Mujtahid, away from worldly gains which in practice is another reason to make Ejtihad difficult. (d) Because of the western influences, religion was thought of as having nothing to do with the system of government, economy and other social activities. Isolation from the society, deprivation from the social opportunities

combined with many other factors had been making it almost impossible for one to get through the subject of Ejtihad. The school of Ejtihad had no other

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LAWS OF WORSE

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80

of all the specialists in different fields of knowledge. This made men realize that it is impracticable for everyone to the scholarly efforts needed in different fields of knowledge, for the ability of every individual.

One can never become a specialist in all the branches of knowledge. Practically, in each of the branches of knowledge we have specialists to whom people refer whenever the need arises, a tradition of civilization to meet the requirements of life. The system of (Ejtihad), the scholarly study of the Law, and the duty sanctioned upon the Muslim masses to refer to the qualified specialists in the Islamic Laws is the practical approval of this tradition by the Islamic system.

A person legally responsible for his voluntary deeds must ask a qualified specialist about the rules of his activities if such rules are not commonly known. God has not imposed on everyone the duty of Ejtihad, the scholarly effort in the study of the Law, to create difficulty in meeting other requirements of life. Also, He has not allowed a non-specialist to himself refer to the sources for a certain precept. His duty is to find out a precept by the way of referring to specialist, a Mujtahid. Therefore, following the decisions of scholar in the Islamic Laws is one of the obligations of a Muslim. word (TAQLID) which means to place something around symbolically means to consider the specialist responsible before

a qualified a qualified The Arabic ones neck, God for his issuing his Fatwa in a precept. It does not mean following blindly without reason on the basis of prejudice and ignorance. There is a big difference between accepting others’ view-points without reason and accepting what is based on a well established principle.

In Islam the former case is disapproved, but the latter is considered reasonable when due precaution is observed. In the matters of Law, one must follow only that specialist, whose degree of knowledge is greater than others,

in case their views differ. The specialist must be a just person, not following his unlawful desires of getting involved in trivial or serious sins, so that the person following him may have the greatest degree of confidence in the accuracy of his decision, safe from following him on the basis of prejudice and ignorance.

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On this basis Taqlid became an Islamic tradition during the time of the Imams (a.s.) and is valid to this day. The Imams (a.s.) would recommend Muslims to refer for the precepts guiding their activities to the local scholars of their school of thought, and would accept no excuse from them in their shortcomings to ask the scholars.

No Tagqlid In Matters of Beliefs

In practical matters, as we noted, the Law has made it compulsory for the common people to follow the (Fatwas) decisions of a qualified specialist in the sense described, while in matters of beliefs and basic principles the above method is vigorously rejected; what is required in the matters of beliefs is to have certainty about the existence and supremacy of one’s Creator, the life hereafter, His religion and guides. The Law requires one to find sufficient reasons in support of the truthfulness of one’s beliefs, instead of following others’ view points. The holy Quran has, in different ways, severely belittled the beliefs that are in any respect based on the views of others. The reasons such as to believe in something because one’s fore-fathers had believed in it or because it serves one’s national interest or not to have any belief due to carelessness or laziness in searching for reasonable beliefs are not acceptable in Islam. Since the basic beliefs in Islam are limited in number, harmonious with human conscience, easy to understand and of greatest significance in human life, thus, the demand of the Law from every responsible person to do his best in a direct search to find out the reality is a natural process that creates no difficulty in one’s other affairs. Even if one would face hardships in the search for proper belief, still it is

important to have patience because of the significant effects beliefs can have in life. Besides, the Law has not ignored different peoples’ ability of approach, their thinking power and cultural attitudes. No one is responsible for what is beyond his ability. Everyone has simply to do his best according to his capability to support the truthfulness of his beliefs, thus, have enough psychological comfort and

sufficient answers before the Creator.

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Both, the scholarly efforts in the studies of the Laws called ’Ejtihad’, and the following of the (Fatwas) decisions of a qualified scholar in this field called "Taqlid’ are continuous tasks on the part of common people. The whole Quran as a text of law is with us in the same form as it was revealed. The same is true of a great number of the Ahadith, saying of the Prophet (peace be upon him and his family). What is required is a logical practice of the Law which naturally demands scholarly efforts in order to find out the exact precept of an event, a process that requires greater experience and farsightedness from the specialists. ;

The specialists have to manage for greater safety measures by means of more profound inferences than their predecessors. This gives the common people the logical opportunity of not limiting themselves within the view points of the specialist of the remote past, just as modern medical progress tells us not to accept the outdated theories in the medical field. For this reason, the relationship between the specialist in the studies of the Law and the common people is an ever new relationship and of a continuous nature. The scholars, especially, the well qualified ones have a holier position as being the representatives of the Imams (a.s.), in the general sense.

THE

POSITION

OF

THE

SCHOLARS

Ever since the Law had considered the two tasks ’following’ and the ’scholarly efforts’ as the best possible way to maintain social order, it also has sufficient means to make the order practically successful. Scholarly effort is a social obligation which any individual may fulfill for the whole community.

In other words, although every member of the community is responsible for this, yet whin one person fulfills this task on behalf of the others, the obligation of others ends. "All believers do not have to become specialists in religious learning. Why not some people from each group of believers seek to become specialists in religious learning to guide their group after completing their studies so that they will have fear of God?" (9:122). "Ask of those who possess the message" 16:43, is a statement from the holy Quran that gives a high position to the scholars and considers them the heirs of the Prophets. The holy Prophet said, "Lord, forgive my successors, for they will be the ones who will teach my traditions, and people will learn from them."

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It is narrated from Imam Ali (a.s.) who said, "The scholars who know about God have the authority in lawful and unlawful matters, being the trustees of His guidance." A look at the faces of the scholars is considered an act of worship so that people can have more benefit from their knowledge. Equal to the extent of the privilege given to them the scholars are enjoined to strengthen their faith in God, to observe piety, have purity of character and to take all the necessary measures against the misuse of their knowledge, so that they may represent the prophets as their true heirs. It is narrated from Imam Alaskari (a.s.) who said, "The common people have to follow the Scholars of the Law who safeguard their souls (against sin), protect their religion, oppose

their desires and obey their Master." It is narrated from Imam As-sadiq who said, "One who uses his knowledge as a means of earning will become poorer." Someone asked, "What do you say about those of your followers who have learnt from you, propagate their knowledge among other followers and receive something in exchange? "He replied, "They are not of those who make a living out of their knowledge by issuing decrees without guidance from God, and spoil others’ rights for their own worldly gains." The Prophet said, "The scholars are the trustees of the Prophets as long as they stay out of the worldly interests."The system of Ejtihad, scholarly effort in the study of the law, and following the decisions of the scholars, on the part of the common people, which must continue as a lawful process, are also the proper ways to preserve the religion.

The scholars by maintaining the standard system of Ejtihad will have the chance to understand the Law, remove the doubts about it, and make others

understand. The Prophet said, "In every generation there will be just scholars who will defend this religion against the innovations of the straying ones and purify it from the false interpretations of the liars, and the inferences of the ignorant people, as a furnace that purifies iron from unwanted matters."

The Sources

of a Mujtahid’s

(Fatwas)

Decision

The sources of the decisions of a Mujtahid are almost always the holy Quran and the Sunnah (traditions of the Prophet) with its continuity in the form of the traditions of his successors, the twelve Imams (a.s.) from his family, whom he regarded being as important as the holy Quran for the guidance of the Muslims. The other sources such as Qiyas, analogy, or Estihsan, what may look acceptable to a scholar, have never been considered as sources of

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the decisions in a Law-handbook, containing a set of collected rules for practical purposes called ’Risalah ’amaliyah’, for such sources were not approved by any of the Imams (a.s.). ’Aq! (Reason), although has a great potential to serve as a source of Law, is controversial among the scholars. Despite its great chance to be considered a practical source in a Law-handbook,reason alone has not been the source of any decision that may be mentioned; whatever could be proved by reason as a legal precept has enough proof in the holy Quran and Sunnah. Consensus so far is not a source equal to the holy Quran and Sunnah. It is not a dependable source except in some instances where it may serve as a means to support some hadith as regards its authenticity. Therefore, the only sources in a Law-handbook or a collection of Fatwas are the holy Quran and the Sunnah (the traditions of the holy Prophet).

THREE

WAYS

TO

OBEY

GOD

1. Man will be questioned about the religion, the guidance of God, His orders and prohibitions. There is no other way to fulfill this responsibility and be sure that one has obeyed God unless (a) one is himself a scholar in the matters of the Law, or (b) he follows the decisions of a well qualified scholar (c) or follows the law by means of observing precaution in order to be certain that whatever is done is within the Law, and no obligation is given up. No scholarly effort, following a scholar or observing precaution is required in the case of the obligations and prohibitions that are commonly known; such as the daily prayers, fasting during the month of Ramadan, unlawfulness of adultery and many others of the obligatory nature. Nor in the case of preferable and allowable acts known to people living in a religious community; that a young divorced woman after sexual intercourse, or a widowed woman, has to wait for a certain period of time before a second marriage; that there are certain informal preferable prayers to pray and that one is allowed to eat an apple, etc. The same rule applies to the natural objects such as to see if some liquid is intoxicating or not. However, one who knows that the above ways are the only ones to obey God, but he follows none of them, his acts have no value

according to the Law. Whatever is done according to none of the above ways is of no value except in the case of one who is ignorant of the whole matter

“Qa Zz ¥ ‘4

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and whatever he has done by chance are as required by the Law or according to the decisions of the qualified scholars.

QUALIFICATIONS

OF A SPECIALIST

(MUJTAHID) (1) Maturity as regards age i.e. sixteen lunar years.(2) Soundness of reason.(3) To be a male.(4) Born of wedlock.(5) To be a follower of the twelve Imams (a.s.).(6) To be a just one in his dealings.(7) To be a living person.

The Ahadith of the Imams (a.s)

Dealing with the intellectual or spiritual aspects of the Imam’s Ahadith or the narrators and their quantity is beyond what can be explained here. In brief the following is a mention of the situations which were surrounding the Ahadith of the Imams (a.s.). The Ahadith, our heritage and the back-ground of our ideology, are subject to criticism; we do not want to afflict ourselves with ignorance. No doubt, a great number of the Ahadith are falsely ascribed to the Prophet, and it is not possible for an ordinary Muslim, a non-specialist, to discern a genuine hadith from a forged one for a practical purpose. The significance of Ahadith in general is beyond question. They contain the fundamentals of our beliefs and the teachings of religion. Muslims have always been careful to safeguard this invaluable treasure against falsehood. With the expansion of the Islamic community many factors came into being which made the Muslims worry about foreign ideas getting into the Islamic teachings. Of those who became part of the Islamic community were people who accepted Islam just for worldly gains, and joined those who accepted Islam on the basis of understanding and under the influence of the spiritual power of the holy Prophet. As a result, forgery and false reports began to emerge in the very life-time of the Prophet who admonished and threatened the forgers with Hell fire and the punishment of God. Dealing with the phenomenon of forgery was not new to the holy Prophet. It was, in fact, to expose forgery that God sent Prophets from time to time. Muslims believe, and it is true that with the holy

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86

Quran God has put an end to forgery. The holy Prophet also had to take effective measures against this phenomenon by means of getting his teachings recorded and setting up standards for the narrators with respect to their dependability. After the death of the Prophet once again the market of forgery boomed.

People began to practice according to the forged Ahadith instead of the authentic ones. Trading with forged Ahadith became more popular, especially, during the time when the Muslims began to fight with each other for the leadership. Many Ahadith were forged in support of the power seekers who had no sympathy with Islam or interest in its teachings, like Muawia who brought the Islamic community under his sway by force and injustice. Under the influence of un-Islamic political systems, forged Ahadith were accommodated in the Islamic Literature and with it new generations were brought up. Muslims began losing ground, partly because of the political situation and also because of the way in which they had been brought up by the unjust leaders. The Islamic Literature got mixed with false Ahadith so much that without scholarly effort and extensive logical work it is almost impossible to discern the genuine Ahadith from the forged ones. The Imams (a.s.) had always been the patrons of the Islamic heritage. They were well aware of the situation and the dangers surrounding the purity of the Islamic teachings. Whenever there appeared a chance, they did their best to educate the people and teach them the Divine guidance. In order to discern a genuine hadith from a forged one, the Imams set up the following standards:1. None of the Ahadith must contradict a self-evident fact that is proven to be true by reason. Any hadith that contradicts the self-evident proof established by reason must not be accepted, for a Prophet or an infallible Imam never speaks against reason. In fact, no statement in the holy Quran or genuine Ahadith contradicts reason in the logical sense of contradiction.

A logical contradiction only takes place when two single matter each in the opposite sense; one negative. Besides, the fact in both statements must respect with regard to time, place, quality and something may happen and it might be true at another time. The same is true of the factors of

statements state the same affirmative and the other be one and the same in all conditions. For instance, one time and not true at place, condition and other

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aspects. A contradiction in the above sense does not and cannot exist between the holy Quran, Ahadith and the self-evident proof established by reason. 2. A hadith can only be accepted when it is not contradicting the holy Quran and other genuine Ahadith, or is not contrary to them. Therefore, any

hadith that is against the meaning of the holy Quran or genuine Ahadith is not acceptable. 3. The narrator of every hadith must hc a just, trustworthy or a person who possesses a high degree of truthfulness. Any hadith that does not meet any of the said conditions is not acceptable. 4. Another hadith of the same degree with regard to the required conditions must not be against it. If there is no © way to reconcile their meanings, neither of them can be accepted.

JA’FAR (THE

IBN

MUHAMMAD

FOUNDER

OF

THE

SHIA

SCHOOL

OF

LAW)

"I had regularly been visiting Imam Assadiq for a long time. I never saw him, except in one of these conditions: (1) praying, (2) fasting, or (3) reading the holy Quran. I never saw him narrating a hadith from the holy Prophet without a formal purification (Taharat). He was one of the most God fearing, pious, and most learned scholars after the time of the holy Prophet, Muhammad (p.b.). "No eye has ever seen, no ear has ever heard and no mind has ever thought of someone exceeding Ja’far Ibn Muhammad in worship, piety and knowledge." Malik Ibn Anas, Tahdhib Al-Tahdhib. Vol. 2: 104. "I never saw a jurist of greater understanding than Ja’far Ibn Muhammad". Imam Abu Hanifah said. During a discourse, Mansoor, the ruler of the time, tried to convince Abu Hanifa that people were very much attracted towards

Ja’far Ibn Muhammad because of his knowledge and That he (Abu hanifah) should prepare some difficult questions to ask him (Ja’far Ibn Muhammad) in a debate. Mansoor had planed to defeat Ja’far Ibn Muhammad in this way and to prove to the people that he did not know much. Abu hanifa has said, "Mansoor called me while I was in Hirah (a city in Iraq). When I entered his Court, I saw Ja’far Ibn Muhammad sitting besides Mansoor. Seeing Ja’far Ibn Muhammad, my heart almost dropped from its place out of the fear that overcame me, more so of Ja’far Ibn Muhammad than of Mansoor. After salutations and greetings, Mansoor asked me to sit

JA’FAR

IBN

MUHAMMAD

(A:S.)

88

down and he introduced me to Ja’far Ibn Muhammad who said,"Perhaps he dislikes people’s words, "Abu hanifah knows the ’man" (Probably Ja’far Ibn Muhammad noticed the feelings of Abu hanifah that appeared on his face). Abu hanifah has said, "Then Mansoor turned to me saying, ’Ask Ja’far Ibn Muhammad your questions.’ I began asking him questions, one after another and he answered them one by one, explaining not only each of the view of the jurists of Iraq and Medina, but also his own view and whether he agreed or disagreed with the views of others until hc had answered all of the forty most difficult legal questions that I had arranged". Abu hanifah has said, "Don’t we say that in the matters of Law, the most Learned person is the one whose knowledge of others’ views is greater?" After this experience, Abu hanifah has said, "I never saw a jurist of greater knowledge and understanding than Ja’far Ibn Muhammad." Manaqib of Abu hanifah by Muwaffaq Vol. 1. P. 173, Jami’ul Asanid of Abu Hanifah P. 222., Tadhkirat ’ul-Huffaz by Dhahabi Vol. 1. P. 157. "In all times, God through a person from us, the Ahl al-Bait (family of the Prophet), leaves no excuse for mankind to say that they did not know His laws. In our time that person is my nephew, Ja’far; one who opposes him will never find guidance.” Zaid Ihn Ali, Managib of Shahr Ashub. Vol. 3. P. 147. "Ja’far Ibn Muhammad established the principles of Islamic Law and Jurisprudence and it is said that Abu Hanifah and Sufyan Althury were among his pupils." Abu Bahr Al-Jahiz, Risa’il al-Jahiz by Sadubi P. 106. "Ja’far was of those about whom God has said, ‘Then we give the Book in inheritance to those whom We choose from among our servants’. Ja’far was of those whom God had chosen, and of those who exceeded others in good deeds. From the family of the Prophet there had always been a scholar who knew the whole tradition of the Prophet and taught it to others.

In our time that person is Ja’far Ibn Muhammad. Mansoor Al-Dawaniqi, History of Ya‘qubi Vol. 3. P. 117; Al-Manaqib of Shahrashub Vol. 3: 302. "During the time of Ja’far Ibn Muhammad learning became greatly popular, this set the minds free from wrong beliefs. Philosophical discourses became public in all the great cities of the Islamic world. The grandson of Ali Ibn Abu Talib, called Imam Assadiq, was a leading personality in the propagation of knowledge. He was a man of powerful reason and of deep and wide thought. He, in fact, is the founder of the Islamic school of philosophy, jurisprudence and the schools of Law. Among his pupils were many scholars and young men who had come from distant lands to learn from him. Sayyed Amir Ali Hindi. "This is not a man. If in the world there had been a spiritual

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personality who could appear in physical or spiritual form whenever he wanted, he would have been no other than this". Pointing to Imam Assadiq said, Ibn Abil ’wja, History of Arabs P. 179.

(1) Responsibility

Responsibility is a sign of honor and respect from God to man. God has given him reason and the power to purify his soul, discipline his instincts and undertake responsibility. This quality is the reality that makes man distinct from the other beings around him. If he fulfills his responsibility, God will — give him due reward. Responsibility

and

Rights:

If we take responsibility in its philosophical sense, apart from what we understand it as a legal term, it means that it is a means to protect and to safeguard oneself from danger. Obviously, to be able to protect oneself from danger is one’s unquestionable right. This makes it difficult to make a distinction between a ’responsibility’ and a ’right’. A complete account of the difference between these two terms can only be found in the subject that deals with the principles of Islamic jurisprudence. Here for the convenience of the readers it should be observed that RIGHTS are mostly concerned with the section of the Law dealing with contracts, property and social relations while RESPONSIBILITY has its application in almost all the branches of the Law. Is a right something natural and responsibility something imposed by the Law, or do both of them have the Law as their source? The answer for such a question is beyond the scope of this outline. In brief, one of the differences between the two terms is that ’Right’ is something that one is entitled to give up or use, while in matters of responsibility one has no choice, because of the Law, but to fulfill that responsibility. For instance, one has the right to take back what he may have given to someone as loan or decide to give it to the borrower as a gift. On the contrary the borrower because of his responsibility of paying his debts has no choice but to pay back what he has borrowed. Another difference is that in the case of ’rights’ no qualification is required on the part of the person entitled to it, while this is not true of responsibilities. For example, a child may have property and have the right to be considered the owner, but he is not responsible to fulfill the terms of a contract or complete certain worship acts, because he does not have the qualifications required for responsibilities such as age, reason, etc.

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(2) Qualifications:

The general requirements of responsibility are these qualifications: (a) Maturity as regards age is fifteen lunar years in the case of a male and nine years in the case of a female. A person who does not have this qualification is not responsible on the Day of Judgement for the violations of the Law, such as drinking wine or not praying the daily prayers. This however, does not mean that the guardians of such people have no responsibility to educate or prevent them from doing wrong. The holy Quran says, "Man, save yourselves and your family from the fire in which people and stones will be burnt as fuel" 6. 66. Children will not be punished for what they may have done against the Law, but this does not mean that their good deeds also will not be of any value. All that is recommended for a mature person to do is true of a child, provided, it is not harmful for the child. It is recommended that the child should begin praying at the age of seven and fasting at nine or should fast part of the day if not the whole. There, however, are cases in which a child too will be held responsible

for the damage which he may have done to someone property. (b) Reason, the natural ability that enables one to discern between right and wrong and realize responsibility.

(c) Ability and power to fulfill the responsibility. "God does not hold one responsible for what is beyond his ability." Ch. 2. 284. There is no responsibility for those who cannot complete certain worship or fulfill a social duty such as a person who is sick or cannot avoid what he has been forbidden to do; a person who is drowning and has no power to avoid the danger. Sometimes one has the ability but the act performed through such ability may endanger his life. In such a case, he will not be considered responsible except in these cases: (a) When one’s life is lost in an armed expedition that is carried out by the state, duly authorized by the Law, the duty is more important than life. (b) When one has enough power to kill someone is forced to kill an innocent one, in this case too, he is not allowed to kill the innocent person even if it may cost him his own life. Sometimes one may face two obligations to be fulfilled at the same time, and may only have the ability to fulfill each at a time, not both of them together. For example, at a time that one has to say his prayer, a fire starts to burn some valuables. In such a case, only what is of

Seed

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greater significance is required to be fulfilled. There is no difference in ignoring an obligation directly or creating a situation which would cause one to miss a duty. For instance, when the time for a prayer has already come, to start a journey by train wherein the prayer cannot be said is to disobey the Law and it must be avoided.

To be a Muslim is not among the general qualifications required for responsibilities. The Legal responsibilities equally apply to both a Muslim and a non-Muslim except for the remedy for the prayers and fasts that are

missed in the case of a non-Muslim before he accepts Islam. A non-Muslim © at the time of prayers is also considered responsible by the Legislator, not for — a remedy of the same.

SIGNS

OF

MATURITY.

Maturity, as we noted, is one of the general requirements for a person to be considered responsible for an obligation. Besides the limit of one’s age as described before, there are two other ways to know if one has become mature or not:

(a) Discharge of semen (the genital fluid) through having sex, or in a dream or for some other reason. (b) Growing of the hard hairs around the genital organs. Soft hairs are not considered as the signs of maturity. If one doubts whether he has become mature or not, he has to wait until his maturity is certain. If one doubts about one’s ability to fulfill a responsibility, he should not dictate to himself that he does not have it. He must do his best, but if hc still is not able to fuifill the

duty, he is not responsible.

(3) General

Effects

of Responsibility

(a) Once the responsibility comes into being all the means that are required to fulfill that responsibility also become obligatory to acquire, that is, if the duty is prayer, to have a formal purification such as Wudu, and cleaning one’s clothes and body also becomes obligatory. (b) If one is not allowed to do certain things, another person also is not allowed to make him do what he himself is not allowed to. For example, a person after having sex and before having Ghusl is not allowed to enter a

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Mosque. As a result, another person also is not allowed to make him enter the Mosque. (c) If one is certain that something has become his duty to do, but doubts whether such a duty was fulfilled or not, he must fulfill that duty again, provided, there is enough time. (d) If after fulfilling the responsibility one doubts whether the duty was fulfilled as it was required or not, if the doubt has come into being alter the act, it is not necessary to do it again. This is either because the duty performed cannot be fulfilled in the same way again or because the time for the same no more exists. For example, if one doubts whether a certain prayer was said in the proper way or not; in fact, in such a case, it is not possible to complete the same prayer. What can be done is to say another prayer as a remedy for that prayer and this is not the prayer said before. Or if in the ease of Adhan which is supposed to be said before the Eqamah, if when saying Eqamah, one doubts whether Adhan has been said or not, in this case, since the time for Adhan no more exists, he does not have to say it again.

(4)

Kinds

of Obligations

(a) Worship acts. (b) Non-worship acts. The difference between these obligation can be described as follows: In general, all kinds of obligation have some conditions. Among the conditions of the Worship acts the most important one, not necessarily found in the other obligations, is ’intention’. A non-worship act is valid without intention and identifying the kind of worship that one is going to complete. The meaning of intention is to decide to complete a certain worship in obedience to God’s order, and thereby get nearer to Him, which means to discipline oneself and have the ability of receiving reward from God. Intention must purely be for this purpose alone. If other things are also included in the intention in the sense that in completing a worship, besides the aim mentioned, other purposes are also intended, such as to show off and become popular thereby, such association invalidates the worship and the person will he considered a sinner.

Another difference is that the worship acts have a definite form and all its particulars are described in the Law. On the other hand, other obligations do not have such limits. What is required in the non-worship obligatory acts is to achieve the purpose. For instance, one is required to maintain his dependents

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but no definite form is needed. It can be fulfilled by means of business or any of the other ways of earning.

(5) Other

Division

of Obligations

(a) Personal obligations (b) Social obligation (c) Replaceable obligation (d) Irreplaceable obligation (e) Independent obligation. (f) Introductory obligations (g) Obligations of limited time. (h) Obligation of no time limit, of a longer period. (i) The Original obligations. (j) Obligation that are a replacement or a remedy. | Personal obligations are those that one himself has to fulfill. Social obligations are those that are obligatory for mankind in general but even one person may fulfill it on behalf of the others. For example, if different kinds of social needs as teaching medical studies are undertaken by a few people, it will set the others free from such social duties. Replaceable obligations are those in which one has the choice to do one out of several forms. For instance, a murderer may pay blood money or accept capital punishment.

Irreplaceable obligations are those which one is required to fulfill without having other choices, such as daily prayers. The introductory obligations are those that in themselves have no purpose, or if there is some benefit it is not re4required. Such obligations are required to be fulfilled as a means to achieve the purpose behind another obligation such as the obligation of cleaning one’s clothes for prayer. Wudu by itself is not obligatory but is re4required for prayer, although by itself also is not without benefit.

(6) MAJOR

SECTIONS OF THE LAW

Although the rules in the Law are inter-related, they can be classified under the following sections: (a) Rules of worship that consist of Formal purifications, Prayer, Fasting, hajj, ’umrah and the remedies, in case some such obligation is missed. (b) Rules of public properly such as Zakat, Khums and the rules pertaining to private property and its various precepts, such as the means of ownership, the means of earning and the rights of the owner. (c) The rules of the properties used in trade and different forms of contracts. (d) Personal laws:

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(1) The rules of family relations and marriage. (2) The rules of food, clothing and places to live. (€) The Social Laws, the Administrative System and Leadership. Worship acts have various forms. Every worship act besides its form has certain conditions and rules. Most of the worship acts in their forms are acts. Only one thing regarded in worship is not an action. It is ’intention’, the attitude of one’s mind. As mentioned before, in worship one’s intention must be to obey God alone. If anything else is included in one’s intention his whole act or worship will be considered void. The intention must not be hypocritical which means that one worships God and at the same time intends to be praised by the people. After a worship is complected, to include something else in one’s intention will be considered of no effect to the validity of the worship. If people think of one as careless towards worship, and to remove people’s doubts one may need to worship in public, this also will be considered of no effect to the validity of his worship. It is undesirable, not forbidden, to tell people about one’s worship in obedience to God. There is, however, a case in which it is

not even undesirable. Thus, if one thinks that telling people about one’s obedience to God may encourage them to worship, there is no harm to tell the others about it.

If one is worshipping with the intention of obeying God but because of someone presence he feels happy that someone has seen him worshipping, this situation too, will be considered of no effect to the validity of one’s worship. To be proud of one’s worship and to think that one has done God a favor, although a sin, has no effect on the validity of one’s worship. However, just to feel happy because of one’s worship does no harm. If one’s worship may have some physical benefit and one’s intention is strong enough to make him worship even without the worship’s physical benefit but one is only aware of such benefit, his worship will be considered valid. However, if the situation is such that one is not ready to worship without the

physical benefit, his worship will be considered void. Belief is the most important condition for the validity of a worship act. No worship will be considered valid without belief. It is not necessary to pronounce one’s intention. If one’s mind is made up to worship God alone,

this will be considered enough for the validity of one’s worship. If one knows

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that a certain act is not acceptable to God, hc is not allowed to do it or else it will be an innovation in the

Dissimulation

and

Insincerity

Dissimulation takes place when something is done to help make one popular among the people or to make them think of one’s act with greatness. To assume such an attitude in one’s worship is illegal. The worship act performed with such an attitude is invalid and the person committing such an act is a sinner, no matter whether it is done to please both God and the people or the people alone.

In some of the Ahadith from the Prophet, dissimulation is considered as Shirk (considering things e4equal to God). Worship is a private matter between one and his Creator. It is not valid to complete a worship on behalf of a living person.

RULES OF TAQLID (FOLLOWING OPINIONS OF MUJTAHID SHARIA) CR # 1. Inthe matiers of the principles of belief it is necessary for a Muslim to prove for himself that such principles are true and it is not lawful to follow others in such matters without proper reason and logical proofs, but in matters of the rules of Sharia one must either himself be a Mujtahid to form his own logical opinion of the rules from the original sources of the Islamic laws or follow the opinion of a Mujtahid who is well qualified or fulfill one’s obligations by means of observing proper precaution to make sure that whatever is obligatory is fulfilled and no unlawful matters is done, for example if a group of Mujtahid is of the opinion that a certain act is unlawful while another group is of the opinion that it is not unlawful he, in order to be sure that rules of precaution are observed, stays away from doing such an act or if a group of Mujtahids are of the opinion that a certain act is obligatory and an other group consider it as preferable, in such a case he performs that act to make sure that he has not missed to act.

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CR # 2. In matters of Sharia Taqlid means to follow the opinions of a Mujtahid. A Mujtahid must be a male, adult, follower of Ahlebayt (a.s.), born of wedlock, living free and possessing the noble quality and ability to observe justice. A person who has the noble quality of justice is the one who fulfills all of his obligations, stays away from all unlawful acts and if his neighbors and associates are asked about his manners they would speak of him as a man of good deeds. CR # 3. A Mujtahid can be identified in the following ways: 1. One’s own certainty because of being of the people who study in the Islamic Seminaries.

2. Report of two Scholars of the Islamic Seminaries who possess the noble quality of justice, as mentioned earlier, who are able to identify a Mujtahid and that their report would not contradict the report of such two other scholars. 3. The testimony of a group of knowledgeable people who are able to identify a Mujtahid and are reliable in their reporting. Apparently, the testimony of one reliable person is enough proof in the matter. CR # 4. Considering that it is obligatory to follow the most knowledgeable Mujtahid, if it would become difficult to identify such Mujtahid it is necessary, in such case, to follow the opinion of a Mujtahid about whose being the most knowledgeable Mujtahid one’s degree of knowledge would be more than 50 % or even if such knowledge would be less than 50 % and one has no knowledge of some one else’s being the most knowledgeable. If every one in a group would be just like the others in one’s opinion he may follow the opinion of any one of them that he choose. However if one the of Mujtahids would be more strict (Awra‘) in observing the rules of Sharia he should be given preference over the others.

CR # 5. In the following four ways one may learn about the opinions of a Mujtahid: 1. Hearing directly from the Mujtahid. 2. Hearing from two people who possess the noble quality of justice and who report the opinions of the Mujtahid.

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3. Hearing from reliable people whose reports could be trusted. 4. Finding the Mujtahids opinions in written form which could be trusted as reliable and authentic and safe from mistakes.

CR # 6. As long as one does not know of any change in the opinions of Mujtahid he can still follow such opinions found in reliable and authentic written forms but when one thinks that a change may have taken place in th Mujtahid’s opinions it is not necessary to find out about it unless the possibility of change is strongly reasonable. CR # 7. When a Mujtahid pronounces his opinion it is not lawful for his follower to follow other Mujtahids in that Fatwa and opinion, according to Ehtiyat ( precaution) but if the Mujtahid did not express his fatwa ( definite opinion) and instead said, “it is a precaution to do so and so.. like saying that _ it is a precaution to say three times the four tasbihat in the two last Rakats of a prayer that has four Rak’ats.. "in such case it is necessary for the follower either to follow such opinion based on precaution which is called a necessary precaution or follow the opinion of another Mujtahid who says that saying such tasbihat only once is enough. The same is the rule if one’s Mujtahid would say, "this case requires some thinking or it is not free from

difficulties.." CR # 8. If a Mujtahid expresses a precautionary statement after pronouncing his opinion in a case like saying, “an object after becoming unclean is cleansed by washing once with water that is a large quantity although it is a precautionary way to wash it three times.."in such a case his followers may follow some other Mujtahid in this case. CR # 9. If the Mujtahid whom one follows dies he must either continue following that Mujtahid’s opinions or find another living Mujtahid to follow. CR # 10. In case that it would be lawful to continue following a deceased Mujtahid, if one acts according to the Fatwa of a Mujtahid in a case and then acts in the same case according the Fatwa of a living Mujtahid in the same case he is not allowed to act in the same case according to the Fatwa of the deceased Mujtahid whom he had followed in the past.

In the same way if his living Mujtahid instead of Fatwa has a precautionary opinion and he has acted according to such precautionary opinion for some

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times, now he is allowed to begin acting in this particular case according to the Fatwa of his deceased Mujtahid. CR # 11. It is necessary to learn the rules that one often needs to practice. CR # 12. If one faces a case without knowing the rule for it, if possible he must wait until he learns the Fatwa of his Mujtahid about it or act according to precaution if possible for him.

CR # 13. If one explains the Fatwa of a Mujtahid to some one and then later it is discovered that such Fatwa is changed, it is not necessary to inform one’s audience of such change, but if one finds out that he has made a mistake in his explanation of the Fatwa then it is necessary to inform one’s audience if possible. CR # 14. If one performs his worship acts without Taqlid for some times, such acts will be valid only if they are according to the Fatwas of the Mujtahid whose taqlid is obligatory for such person or they were according to the Fatwas of the Mujtahid whose taqlid is definitely obligatory for him now or he learns through other ways that his acts were according to the rules of Sharia and that he has in fact performed his duties the way he was required.

RULES OF TAHARAT, CLEANSING ACCORDING TO THE ISLAMIC LAWS. THE WATERS; PURE AND MIXED. CR # 15. Water is either pure or mixed. The mixed water is the water mixed with juice like those of fruits or with things like soil etc., which can not be called water. Pure water is the water which is not mixed with any thing and it is of the following kinds: 1, Large amount of water. 2. Small amount of water. 3. Flowing water. 4, Rain water. 5. Water from wells.

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CR # 16. Large amount of water is that amount of water that measures about three cubic feet or 376 kilograms and 740 grams by weight.

CR # 17. Kur, or large quantity of water does not become unclean as soon as it comes in contact with unclean substances like blood or human urine. It only becomes unclean when one of its three qualities like smell, color or taste change into those of unclean substance. CR # 18. The Kur water does not become unclean if its qualities are changed but not by those of the unclean substance. CR # 19. If unclean substance comes in contact with water that is more than

a Kur and some of the qualities of some parts of that water changes into those of unclean substance but not those of its other parts if the remaining amount is less than kur the whole water becomes unclean but if the remaining portion is more than kur then only that part which has a changed quality is unclean and not the rest.

CR # 21. If an unclean object is washed under the tap which is connected with kur, drops from the object being washed is clean if such drops do not have any one of the three qualities of the unclean substance mentioned above or particles of the unclean substance. CR # 22. If some of the water freezes and the remaining is less than kur the whole water becomes unclean as soon as it comes unclean substance as well as whatever that melts.

in contact with some

CR # 23. If there is doubt whether an amount of water that was kur is still kur or less it will still be considered kur and will have the effects of kur. CR # 24. By the following ways an amount of waters’ being a kur can be established:

1. One’s personal certainty of the fact. 2. Reports of two people who possess the noble quality of justice. 3. The report of reliable people in whose custody the water is.

Small Quantity of water. CR # 25. Small amount of water is the water which is less than kur and is not connected with under ground waters.

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CR # 26. If some unclean substance comes in contact with small amount of

water it becomes unclean but if such water is poured from a higher place the water that is above the unclean substance remains clean.

CR # 27. In the case of washing an object with small amount of water the water that comes out or drops from the unclean object during washing that water is unclean. It is also necessary to stay away from such water that is poured on the object even after the unclean substance is removed from it. However, in the case of washing after urine or defecating it is not necessary to stay away with the presence of the following conditions: 1. Such water does not have any of the three qualities mentioned above. 2. No other unclean substance from outside is mixed. 3. No particles of urine or feces is seen in it. 4. No blood has come out with urine or feces. 5. Urine and feces have not spread beyond normal.

THE FLOWING WATER. CR # 28. The flowing water is the water that come out of the ground and flows like brooks and rivers etc. CR # 29. If an unclean substance comes in contact with the flowing water which is less than kur it still remains clean until one of its qualities mentioned before is changed by those of the unclean substances.

CR # 30. If an unclean substance comes in contact with flowing water only the portion of water which has a changed in one of its three qualities is unclean but not the other portion which is connected with the source even if it would be less than kur. The portion of water not connected with the source and not affected by any changes in any one of its three qualities is clean if it is a kur and unclean if it is less than kur.

CR # 31. The fountain that gushes in certain seasons and dries up in other times is just like flowing water when it is gushing out. CR # 32. The fountains that fills up the level of water when some __water is taken from it but does not flow is the same as the flowing water. It does not

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become unclean just because of coming in contact with some substance as long as any of its three qualities are unchanged.

unclean

CR # 33. The amount of water near the brooks that does not flow but is connected with the flowing water is the same as the flowing water in the matters of the rules of being clean or otherwise. CR # 34. The waters in the tanks or pools which are connected with source or by themselves or kur are just like the flowing water provided the source also is kur. CR # 35. The Waters coming out of taps are also like flowing water if they are connected

with the sources which is not less then kur.

CR # 36. The water that flows on the ground but has no source if it is less than kur it becomes unclean by coming in contact with unclean substance but if it flows with strong current only the portion that is in contact with the unclean substance and those below such part is unclean and not those above

the contact part.

3

RAIN WATER CR # 37. If rain falls on something unclean and if there is no unclean substance on it becomes clean because of rain and there is no need to wring if it is like fabric etc. The rain must be more than few drops. It must be considered raining according to a mustahab ehtiyat rain must be able to flow on hard ground. CR # 38. If rain falls on such droplets are clean of their three qualities sprinkle around if these color and taste of blood

unclean substance and then sprinkles to other places unless unclean substance is found in them and none are changed. If rain falls on blood and droplets droplets do not have any blood in them or the smell in them they are clean.

CR # 39. If rain falls on roofs or surfaces with unclean substances on them the water flowing down would be clean even if it carries unclean substances with it as long as rain is falling. If rain stops and one knows there is unclean substance on the roof or the surface from which water flows such flowing rain water will be considered unclean.

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CR # 40. The earth which has become unclean becomes clean by the falling of rain. If rain falls on the roof and water flows down onto an surface such surface also becomes clean.

unclean

CR # 41. The unclean soil that is turned into mud by rain becomes clean.

CR # 42. If rain water accumulates at a place and something is washed in it when rain is falling it becomes clean even if the accumulated water is less than kur and none of its three qualities is changed by those of unclean substances. CR #. 43. If rain falls on floor covering which are spread over unclean floor and water flows on the unclean surface such surface also becomes clean with

out making the covering unclean.

WELL WATER CR # 44. The water coming out of earth is clean even though less then kur as long as none of its three qualities is changed but it is mustahab to take out a certain quantity of water out of such well as soon as it comes in contact with some unclean substance. For details see larger books on this topic. CR # 45. If some unclean substance falls into a well and it changes the smell or taste or color of the water and then such change go away the well becomes clean only when some new water is added to it from its source according to a mustahab ehtiyat. CR # 46. If rain water accumulates or any other water at a place and it is less then kur in quantity it becomes unclean as soon as it comes in contact with some unclean substance.

PRECEPTS

OF WATER

CR # 47. The mixed water as defined and mentioned in rule 15 does not clean any unclean substance and it is not good for wudu.

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CR # 48. Mixed water, even if it would be a lot in quantity (not of the size of oil-wells or the like) it becomes unclean as soon as it comes in contact with an unclean substance, but if it is poured from a higher level like being poured on an unclean hand only the portions contacting the unclean substance and below become unclean not the portions on a higher level. CR # 49. When mixed water is mixed with pure water as such that it can no more be called mixed water it becomes clean. CR # 50. The pure water about which one may doubt whether it has become mixed or not, it is considered pure and the rules of pure water will apply to it. If it was mixed before and one may doubt whether it has become pure or not in this case the rules of mixed water will apply to it. CR # 51. The water about which one does not know whether it is pure or mixed and also its previous conditions would not be known as being mixed or pure it is considered as not a purifying agent and Wudu or Gus also will not be valid with it but if its quantity would be a kur or more and some unclean substance comes in contact with it will not be considered unclean.

CR # 52. Water with which some unclean substance has come in contact and as a result one of its qualities has changed into those of unclean substance it will be considered unclean even if it would be flowing or Kur but if such change would not be because of contact but it would be due to nearness in such a case its being clean is objectionable it would be necessary to stay away from it. CR # 53. The water that has become unclean due to coming in contact with some unclean substance and one of its qualities has changed and then if change would go away because of pure water being poured in it or rain water until the changes go away such water will be considered clean. CR # 54. After washing some object with water of kur or flowing water the water that is in the object already washed is clean.

CR # 55. The clean water about which one may have doubt whether it is still clean or not is considered clean and the water that was u unclean and one is not sure whether it has become clean or not is considered unclean.

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CR # 56. The left-over water from which dogs, pigs, or atheists have drunk is unclean. It is not lawful to drink it. The left-over water from which edible animals have drunk is clean and there is no offense to drink it. The left-over water from which inedible animals have drunk is makruh to drink but it is clean and in the case of cat it is not even makru also.

THE RULES

OF USING

REST-ROOMS.

CR # 57. It is obligatory for one to cover one’s private parts from every responsible adult person in all times even if they are relatives also, if they are mentally retarded or children who are able to discern good from harmful but this restriction does not apply to wife and husband. CR # 58. It is not necessary to cover one’s private parts with special objects. CR # 59. It is necessary not to face or back the direction of Qiblah during one’s using the rest-room.

CR # 61. It is mustahab ehtiyat not to face or back the direction of Qiblah during washing one’s private parts or doing Estabra (as will be described later).

CR # 62. The above rule applies in normal conditions but not if one is forced to face the Qiblah to avoid being exposed to people or some other unavoidable reason.

CR # 63. It is not necessary to observe Ehtiyat about the direction of Qiblah when sitting a child in the rest-room and if a child faces the direction of Qiblah on his own, it is not necessary to stop him from doing so. CR # 64. Using the following places for urine or defecating is not permissible: 1, 2. 3. 4. 5.

Private and public roads. In some one else’s property without his permission. In the places reserved for certain people like certain schools ete. On a believers grave if it would be an insult to him. In the sacred.places where it would be against the respect of such places.

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CR # 65. In the following cases the private parts because of stool can only be cleansed with water with Ehtiyat in some of them: 1. If some unclean substance from outside is present. 2. If blood or other unclean substance has come out with stool. 3. If stools has spread more than normal around the area. In other cases it can be cleansed by washing or wiping with other materials although washing is more better. CR # 66. Urine can only be cleansed with water. If after removing the urine the place is washed only once with water of kur or flowing water it is cleansed but with small amount of water it is necessary to wash two or more better three times.

CR # 67. If the place of stool is washed with water it is necessary not to leave any stool thereat but there is no need to remove the color or smell therefrom and if the stool is removed then only once washing is enough and there is no need to repeat the wash. CR # 68. It is permissible to clean the place of stool with materials other than water if they are dry and clean and some moisture in them that would not transfer to the place of stool is not objectionable but it is necessary to wipe at least three times even if they are removed only by once wiping or twice CR # 69. It is a necessary Ehtiyat that the material to wipe the place of stool must be three pieces if the pieces would not remove the stool then it is necessary to add until it is clean and it is not necessary to remove very small and invisible particles.

‘CR # 70. It is not permissible to clean or wipe the place of stool with respectable objects like the materials with names of Allah or the Prophets. It is not permissible to use bones or dung and if such materials are used it would be an offense but the place would become clean. CR # 71. If one doubts whether one’s place of stool is washed or not it is a necessary Ehtiyat to wash it even if it would be one’s usual manner to wash soon after using the rest room.

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CR # 72. If one doubts after a prayer as whether one washed the place of stool before the prayer or not one’s prayer which is already completed is valid but it is necessary to wash for the coming prayers.

TAHARAT (PURIFICATION) The term TAHARAT is used in the following meanings in the Islamic Law: (1) Natural process of purification: such as to wash something that has become unclean because of contact with some unclean substance, in the way required by the law. (2) Formal process of purification: (a)Wudu: meaning to wash one’s face and hands from the elbows to the tip of the fingers, wiping one’s front part of the head and feel from the toes to the ankles. (b) Ghusl: meaning to wash one’s body, take a bath in certain situations for a worship act. (c) Tayammum: Using clean dust as a substitute for water in a prescribed way instead of Wudu or Ghusl. The formal process of purifications with its three above-mentioned forms is considered to be among the worship acts. None of the formal purifications are obligatory in themselves. They are introductory obligations. Each of them must be fulfilled with intention in the sense mentioned before. Although they are introductory obligations, they also are considered as desirable acts, not obligatory. In the natural process of purification intention in the sense mentioned before is not necessary. What is required, in this case, is the natural result which is to remove unclean substances by washing as the law requires.

LAWFUL

OR

UNLAWFUL

FOODS

Besides the substances considered filthy in the Islamic Law, other food materials unlawful for food can be classified as follows: (1) It is forbidden to eat all the materials that are substantially dangerous to one’s health. (2) It is forbidden to eat the food that does not belong to one unless he is permitted by the owner. (3) It is forbidden to eat all the food materials that have become filthy by getting mixed with filthy substance unless they are cleansed.

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MEAT (1) SEA FOOD Only those fish which have scales can be used for food. A shrimp is considered as a fish that has scales. Fish do not need to be slaughtered as do the animals on land and birds. However, a fish must be taken out of the water alive by human beings.

(2) Birds: (1) The flesh of all hunting birds is not lawful for food. (2) The flesh of bats, peacocks, wasps, flies, the eggs of all birds not edible and all birds that feed on filthy substances unless put in quarantine for certain days, arc not lawful for food. (3) Of the birds those which when flying keep their wings straight, more often than moving, are not lawful for food. In case, the two manners of flying arc equal and the bird has neither: (a) Gizzard (b) crop or crow (c) spur or hind claw. Such a bird is not lawful for food. It is abominable to cat the flesh of swallows, hoopoos, rollers, wood-pigeons, ring-doves or skylarks. (3) The Animals Living on Land The following species of animals are edible: (1) Sheep (2) Goats (3) Cows and Bulls (4) Camels. The flesh of horses is abominable to cat and that of donkey is almost forbidden. The following items in the body of the above species are not lawful for food: (I) Genital Organs (2) Spleen (3) Feces (4) Blood and Bones (5) Bladder (6) Gall Bladder (7) Spinal Cord (8) Small Glands (9) Pupil of the eyes.

MANNER

AND

CONDITIONS

OF

SLAUGHTERING

The animal must be slaughtered by cutting the pharynx, larynx jugular vein leaving the thyroid cartilage to the head. Conditions: (a) The person slaughtering must be a Muslim male or female. cutting instrument must be made of iron. (c) When slaughtering, parts of the animals must face the Ka’ba (i.e. the abdomen, feet and

and the

(b) The the front chest).

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(d) Simultaneously, with cutting the throat, the person must, with the intention of slaughtering the animal, mention the name of Allah (ie. Bismillah or Allahu Akbar). (e) After the throat is cut, the animal must move. Only the movement of its eyes is also sufficient. This is necessary only if there is doubt whether the animal was alive or dead before it was slaughtered. (f) It is Makruh that the neck of the animal, excluding birds, be cut before it dies. If the animal is a camel, the cut must be made in the cavity close to the chest. If any of the above conditions is knowingly ignored, the slaughtering is improper and the flesh of the animal is not lawful for food.

SECTION NO. 1. UNCLEAN SUBSTANCES The following substances are unclean or filthy: 1. Urine 2. Feces of human beings and all the animals that have spurting blood and their flesh is not edible. . Semen, the genital fluid of all the animals that have spurting blood.

Any dead animal. . The blood of animals which spurts when they are slaughtered. Pigs . Dogs that live on land. . An atheist who believes that there is no God, polytheists who believe in OIDNAAW more than one God and idolaters who believe in idols. 9. Wine. 10. Beer. 11. The perspiration of the animals that feed on unclean substances or human excrement according to necessary ihtiyat. The perspiration of a person who has become Junub (has experienced semen discharge) in some unlawful way is unclean according to a Mustahab Ihtiyat, regardless the discharge of semen is caused by regular sex, homosexually, sex with animals or masturbation and to say a prayer with such perspiration is not lawful. Such person has to clean himself before saying a prayer, otherwise, the prayer will not be valid. With regards to the precepts of perspiration to have sex with one’s wife during her period is the same as if having sex in an unlawful way. The same rule is true of one who has had sex

Soe iAka

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during the days of the month of Ramadan with his wife without an excusable reason.

DETAILS:

CR # 1. The urine and feces of human flesh and spurting blood are unclean. escapes with force when a main artery which do not have spurting blood, such

beings and all the animals of inedible Spurting blood is that blood which is cut. The urine and feces of reptiles as fish, although being of the category

which do not have scales, arc not unclean.

CR # 2. The blood of animals are unclean whether they were slaughtered properly or died naturally. On the other hand, the blood of a fish that dies in the water is not unclean, even though the fish is not of the edible category. The body fluid of all insects, such as flies or fleas, is not unclean.

CR # 3. Semen from any animal that has spurting blood is unclean regardless of its quantity.

CR # 4 Dead animals, those which die of natural causes and not by proper slaughtering are unclean. CR # S. The hide, fur, or bones of a dead animal are not unclean, such as the

hide of an ox or the wool of a lamb. If a part such as the hide is removed from a dead animal and a portion of the animal’s skin is still attached to it, that portion is unclean.

CR # 6. Any piece of skin which is separated from a living person or animal is unclean. A small portion of skin from the lips or dandruff which naturally falls off is not unclean. CR # 7. When an unclean substance is removed from the inside part of a human being’s body, such as the mouth and the inside of the nose, or from the surface of the animal’s body, the area where the unclean substance touched is considered clean and no cleansing is required. CR # 8. One must remove his false teeth whenever his mouth bleeds and wash both the teeth and the mouth before replacing the false teeth.

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CR # 9. An egg with a hardened shell taken from the carcass of the chicken is clean. The egg must be washed due to its unclean surroundings.

CR # 10. Any kind of meat, or skin for Leather garments purchased from an Islamic market is considered clean. CR # 11. The dead bodies of human beings and all the animals are unclean. Blood from insects or reptiles that do not have spurting blood is not unclean. CR # 12 The remaining blood in the body of an animal of edible flesh after being properly slaughtered is clean, provided, enough blood has gone out from the artery immediately after the slaughtering. However, if the excess blood somehow returns to the body, the remaining blood in the body is unclean. CR # 13. Atheists, polytheists, idolaters, and those who openly deny the Prophethood of the holy Prophet of Islam, Muhammad (Peace Be Upon Him), are unclean. The entire bodies of such people are unclean. If the parents or the grandfather and grandmother of a child are of the people mentioned,

the child, because

of subordination

to them,

will also be

considered unclean. If a child’s father or grand father is a Muslim and the child will be considered clean. If it is not known whether a person is a Muslim or not, he will be considered clean if he is in Muslims’ country, as a

Muslim in all respects. Also a person who knowingly denies one of the unanimously accepted Islamic obligations like ’Salat’ (prayer) or "Sawm’ (fasting) is unclean.

CR # 14. Fermented grapes or grape juice are unclean and their use is prohibited. When grapes or grape juice are boiled in a container both the juice and the container become unclean. On the other hand, if the grape juice is boiled until two-thirds of the liquid is evaporated, both the container and the liquid become clean and lawful to use. Hashish and opium are not unclean even in the liquid form, but their use is forbidden. Wine and all intoxicating liquid is unclean. CR # 15. The boiled liquid from dates or raisins is considered clean and lawful to use, according to a Mustahab Ihtiyat in they should not be used especially raisins and dates. The meat and eggs of animals and birds which are edible and clean is lawful to eat. However, if they have the habit of eating

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unclean things such as human excrement, they are unclean. In order to cleanse them or consider them as clean, they must receive clean food for the following periods: Camels: forty days according to Mustahab Ihtiyat, Cows or bulls: thirty days, Sheep: ten days, Ducks: seven days, Chicken: three days. Even after such time, if the animal is still called an unclean eater, it will be considered unclean and must be confined until it can be called a clean eater.

CR # 16. Beer is unclean and its use is forbidden. However, the liquid taken from barley for medical purposes is clean. CR # 17. An item can be proven unclean in three ways: (a) Certainty about the fact. (b) Two or one just man testify that it is unclean. (c) The people associated with the object, servants or hostesses state that it is unclean. CR # 18. It is forbidden (haram) to make a line, a word, or a page of the holy Quran unclean. If accidentally, it is made unclean, it is obligatory to cleanse it. CR # 19. Writing even one word of the holy Quran or the names of God with unclean ink is forbidden. However, if it is accidentally written with unclean ink, it must he washed away, or if that is not possible, it must be erased.

CR # 20. Giving the holy Quran to an atheist or anyone who does not believe in God aad who may cause disrespect to it is forbidden. It is necessary to take it back from him.

CR # 21. Eating or drinking unclean c is absolutely forbidden. Also, it is forbidden to give someone unclean things to eat or to drink. However, if a baby is eating something that has become unclean, it is not necessary to take it away from him. CR # 22 There is no harm in selling or buying something that has become unclean when it is possible to clean it. It is necessary for the validity of a contract that the seller should inform the buyer of the uncleanliness of the

merchandise. CR # 23. If a person is eating unclean food or praying with an unclean garment, it is not necessary for others to bring the fact to his attention.

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CR # 24. If a host or a hostess discovers that the food which is going to be served is unclean, it is his or her duty to inform the guests, according to necessary Ihtiyat. However, if the guest himself discovers the uncleanliness of the food he should not mention the matter, except to a person with whom he is closely related, such as a husband or wife. One should inform them about the matter

after they finish eating.

SECTION NO. 2. PURIFYING AGENTS The following substances and conditions are purifying agents: (a) Pure water. (b) The earth. (c) The sun. (d) Changing of form. (e) Evaporation. (f) Becoming a Muslim. (g) Subordination. (h) Isolation of an animal that feeds on unclean substances. (i) Absence of a Muslim with regards to his property. (j) Transfusion. (k) The release of blood from the animal slaughtered makes the remaining blood in the body to be considered clean. (1) Disappearance of the unclean substance from the surface of the animal’s body and from the inside parts of the human being’s body such as the inside of the mouth or nose.

Further

Details

(I) WATER: Qualitative Division:

(a) Water not mixed with other matters which change its original state is called pure or absolute water. (b) Water which is mixed with some other liquid, such as juice etc. is called impure or mixed water. (2) WATER: Qualitative Division:

(a) Running water (b) Rain water. (c) Well or spring water.(d) ’Kur’ (an amount of water in a container of about three cubic meters). (e) Clean water which is less than ’Kur’.

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(3) Water purifies things that have become unclean with these conditions: (a) The water must be of the absolute quality as mentioned. (b) The water must be clean. (c) When a substance which has become unclean is washed, no change must occur in any of its three qualities of purifying water: its color, taste, or smell and it must remain in the absolute quality. Such a change must not occur in the last wash of the substance. However, before the last wash, a

change in the qualities of the purifying water is not harmful. For instance, if a substance is to be washed with a ’Kur’ of water or a lesser amount and it is necessary to wash it twice, if in the first wash one of the three qualities of the purifying water is changed, the second time, the qualities must not change; otherwise, the substance remains unclean. (d) After the substance is washed,

no unclean matters must remain on it. The above process of cleansing is only proper with the water which is a Kur’ or more in quantity, but when washing something with an amount of water less than a ’Kur’, there are still other conditions to observe.

CR # 25. A pool that has become unclean must be washed three times if the amount of purifying water is Less than a ’Kur’ hut if the water is running water, only once is enough. If the pot has become unclean because a dog has drunk from it, the pot must first be rubbed entirely with earth before washing it once with a ’Kur’ or running water or twice if the amount of water is less than a Kur’.

CR # 26. If a pig licks a pot or drinks some liquid from it, the pot must be washed seven times with water and there is no need to rub it with earth although it is a Mustahab Ihtiyat to rub with dry earth. If a pot has become unclean because of wine, it must be washed three times, regardless of the amount of the purifying water, although it is a Mustahab Ihtiyat to wash seven times with water less than Kur.

CR # 27. A pot that is made of unclean clay can be cleansed by putting it in the water until the water penetrates into all its parts. CR # 28. An unclean pot can also be cleansed with water that is less than a ’Kur ’in quantity by, (a) filling it with water and pouring the water away three times, (b) or pouring some water into the pot and rinsing it such that water covers the whole surface of the pot each time. CR # 29. Something which has become unclean may also be cleansed by placing it in running water or a ’Kur’, and letting the water reach ali the

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unclean parts. If clothes have become unclean because of urine they must be washed twice and according to Mustahab Ihtiyat they should be wrung after washing each time.

CR # 30. To cleanse something that has become unclean because of urine, with the amount of water which is Less than a ’Kur’, these steps must be

taken: Water should be poured on it. When water removes the urine and stops dripping, it is sufficient to pour water only once again. But in the case of clothes and the like, according to Mustahab Ihtiyat they should be wrung after washing each time water is poured. CR # 31. If something has become unclean because of the urine of a baby boy who feeds only on his mother’s milk and water is less than a ’Kur’, it is enough to pour such water on it only once such that it may reach all the unclean parts. However, for a Mustahab Ehtiyat (preferable precaution), if water is poured twice, there will he no need to wring it. CR # 32 If grain or soap becomes unclean, they can be cleansed by being placed in water so that it will penetrate into all their parts. CR # 33. The meat that has become unclean can also be cleansed in a pot by filling it with water a number of times. CR # 34. Dyed clothes that have become unclean can also be cleansed by the above mentioned process, provided, when they are wrung, the water dripping is not changed as such that it can no longer be called water in the absolute sense. When clothes are washed, the small pieces of soap or clay that may be seen on them will be considered clean. However, if the unclean water has reached the inside of the soap or clay, only their surfaces are clean, not the inside. CR # 35. Unless the unclean substance is removed from the object, the object does not become clean. However, if the smell or the color of the unclean substance remains, it does not effect the cleanliness of the object.

For instance, if blood is washed properly from clothes, the color of the blood that remains will not affect its cleanliness. However, if because of the color or the smell one is sure or thinks that some particles of the unclean substance have also remained, in such a case, the object will be considered unclean. If the particles of unclean food remain between the teeth, they can be cleansed

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by washing the mouth, provided, water reaches such particles entirely. In washing the hair of the head it is not necessary to wring it.

CR # 36. In washing the body or clothes with an amount of water that is less than a ’Kur’, the surroundings Or the unclean places, naturally, become wet and also clean, when the unclean part is cleansed. For instance, in order to

wash a finger that has become unclean if water is poured on all the fingers and the unclean water from the finger transfers unclean substances to the other fingers, when washing has been completed the other fingers will also he considered(I clean. CR # 37. The greasy meat and fat which may have become unclean can be washed and grease has no effect on the cleansing process. The same CR # applies to the body and clothes. If the fat on cloth or body may prevent water from reaching the unclean parts, the fat should be removed first and then proper washing should be completed. The water less than a ’Kur’ from the tap connected lo a source will be considered as a Kur’ in quantity.

CR # 38. After washing an object if one doubts whether the unclean substance has been removed or not, although he is certain about proper washing, he must wash it again to make sure that the unclean substance is removed, according to Ihtiyat. CR # 39. Earth absorbs water and it is possible to cleanse it. The ground that does not absorb water can also he cleansed, hut the water must flow on the

ground in this case. CR # 40. If the surface of the materials, such as solid salts or rocks, becomes unclean it can also he washed with an amount of water which is Less than a ’Kur’. The sugar that has become unclean can not be cleansed.

EARTH

Earth cleanses the soles of the shoes and the feet with these conditions: (a) The earth must be clean. (b) It must be dry. (c) The unclean substances or the objects that have become unclean and have stuck to the feet or the soles of the shoes must be removed by walking on the ground or by rubbing against the ground. The ground must be in the natural state. By walking on the grass or a mat etc., this result can not be achieved.

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CR # 41. It is better to walk on the ground for at Least forty-five feet, although the unclean substances may possibly have been removed before walking such a distance. It is not necessary that the feet or the soles of the shoes he wet; even so they can be cleansed by walking on the ground. When the feet or the soles of the shoes are cleansed by walking, those parts of the shoes or feet which are very close to the ground also become clean. CR # 42. All of the following can be cleansed by walking on the ground: Artificial feet, knees, palms of the people who use them instead of feet and automobile tires etc., although it is objectionable. The Sun

The sun cleanses the ground, buildings and the objects that are permanently fixed in the buildings with these conditions: (a) The object that has become unclean must be wet and must be dried by the sun’s rays. (b) The pe substance must be removed before sun rays shine on it to dry the object.

(c) The sun’s rays must not he prevented from falling directly on the object, or else, the object cannot be considered clean. However, thin clouds that do not prevent the sun’s rays from falling directly on the object are not harmful. (d) The sun must independently dry the object. The object dried partly by the wind and partly by the sun cannot be considered clean. However, if the wind is so slight that it could he said the object is dried only by the sun, such a slight wind does not harm the purifying effect of the sun. (e) The sun must dry the whole object at once. If one side of the object is dried at one time and the other side at another time, only the sides which were dried up first will be considered clean. Trees and grass can all be cleansed by the sun by the above mentioned way. In the case of the unclean ground if one doubts about the existence of any of the conditions necessary for the purifying effect of the sun, that ground will be considered unclean.

CHEMICAL CHANGE CR # 43. If the form of an unclean substance is changed in such a way that it has taken the form of a clean substance, the new form will be considered clean; the unclean wood burnt into ashes or the body of a dog turned to salt

where such chemical change takes place. However, a change such as turning the wheat to flour etc. isnot sufficient for purification. The chemical change is other than the change in the qualities or

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divisions in some parts of a substance. Only complete chemical change is a purifying agent.

EVAPORATION CR # 44. If wine by itself, or due to something else such as vinegar or salt, becomes vinegar, the wine becomes clean. If the wine of unclean grapes, in a pemaines other than that in which it was made, turns to vinegar, it becomes

clean. CR # 45. Vinegar made of unclean grapes, raisins or dates is also unclean. Grape juice boiled by itself or by fire is unlawful to use; if two-third of the juice has evaporated, one is allowed to use the remaining one third portion. CR # 46. If two-thirds of the grape juice has gone without being boiled and the remaining one-third is boiled, it becomes unlawful to use. If it is not known whether the grape juice has boiled or not, itis allowed to use it. If it is not certain whether the two-thirds of the juice has evaporated or not, it is not allowed to use it. If only a single grape is placed into something boiling and the grape is also boiled, the use of that boiled material is not lawful.

TRANSFORMATION CR # 47. If blood from a human body or an animal is transfused into the body of insects that do not have spurting blood and has become part of the latter body, such blood will be considered clean. The above rule is not true in the case of a leech for the blood is still referred to as a human being’s blood and not that of a leech. The rule of transfusion applies to all the other unclean substances. CR # 48. If one swats a mosquito on his body and he is not sure about the blood whether it is from the fly or is taken by the fly from his body, the blood will be considered unclean, according to Ihtiyat . It is unclean if one knows that it was taken from his body and spilt before becoming part of the fly’s body.

ISLAM CR # 49. If a non-Muslim declares his belief ( by pronouncing Shahadatayn) in the existence of one Almighty, All-Knowing, Ever-Living God and the truthfulness of the Prophet Muhammad (peace be upon him and his family) regardless of the language, he will be considered a Muslim and his body, the fluid of his mouth, nose and perspiration will all be considered clean. However, if at the time when a person becomes a Muslim some unclean substance is attached to his body, it is necessary to wash it. If the wet clothes

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of a non-Muslim are touching his body and after he becomes a Muslim those clothes are off his body, such clothes will be considered unclean. If a non-Muslim declares his belief in the Islamic principles of faith but one doubts whether he did so out of belief or not, he will be considered clean. If

one knows that he did not say it out of belief he is not considered clean.

SUBORDINATION CR # 50. If wine becomes vinegar, its container also becomes clean because of subordination. The child of a non-Muslim is clean in the following cases: (a) When a non-Muslim becomes a Muslim his children, because of subordination, become clean. The same rule applies to the grandfather, grandmother or the mother of a child. (b) A non-Muslim child (with no parents) living with a Muslim is clean, provided, after he becomes able to discern right from wrong, he does not express anything against the Islamic beliefs. The wooden table on which a corpse is washed and the pieces of cloth used to cover the private parts of the body all become clean in subordination when the Ghusl for the corpse are completed. The hands of a person washing an object become clean in subordination when washing is complete. Disappearance of the Unclean Substance CR # 51. The surface of the body of an animal that has come in contact with an unclean substance such as blood, or with something that has become unclean due to some unclean substance, when such a substance is removed,

that part of the body becomes clean. The above rule also applies to the inside surface of a human being’s body, such as the inside of the mouth and nose. For instance, if the gums bleed and afterwards the blood is removed by the saliva, there is no need to wash the inside parts of the mouth; washing the lips is sufficient. If the mouth bleeds and one does not know whether the blood is mixed with the food in the mouth or not, the food will be considered clean. If the blood is mixed with the food, the food is considered unclean, even if no blood is seen in it

according to a Mustahab Ihtiyat. It is not necessary to wash those unclean parts of the lips and the eyelids which when closed come together and the parts that one does not know whether they are part of the inside or the outside surface of the body.

ISOLATION OF AN IMPURE EATER CR # 52 The urine and feces of animals that habitually feed on human excrement are unclean. To cleanse such animals, it is necessary to isolate and prevent them from feeding on human excrement. Clean food must be given to them up to a time after which they can no longer be called impure eaters.

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The period for which such animals are to be isolated has been mentioned before.

ABSENCE OF A MUSLIM CR # 53. The body, clothes and other articles of a Muslim in his absence will be considered clean with the following conditions: (a) That he considers the substance that has come in contact with the articles as unclean. If he does not consider the substance unclean, such as if he thinks that a non-Muslim is not unciean and the fluid of a non-Muslim’s body has come in contact with his clothes, in this case, his clothes, during his absence cannot be considered

clean. (b) It is known that his articles had become unclean. (c) One has seen that he had been using the articles in question for the acts in which it is necessary to observe cleanliness, such as prayer. (d) One may consider that it is necessary to have clean clothes to complete a worship act. Therefore, if he did not know, that it is necessary to have clean clothes for a prayer, the clothes in the absence of the Muslim cannot be considered clean. (¢) One may think that person has washed the articles after they had become unclean. If one knows that he has not washed those articles, he cannot consider them

clean. (f) That person must been adult, according to a necessary Ihtiyat.

CR # 54. If one is certain that something which was unclean has become clean, or two just people inform him about it, such an object will be considered clean. CR # 55. If a person washes someone clothes and tells the owner that he has washed his clothes, in such a case, if the owner has confidence in the words of that person, they will be considered clean.

CR # S56. If two just people say that a certain object is clean, it will be considered clean, or if such people describe the reason of purification, although such a reason may not be considered as purifying to the two just people. For instance, if they say that certain amount of rain fell which according to them is not purifying, but to the person who is concerned with the purity of the article such amount of rain is sufficient to clean the unclean articles. In the case of the witness, it is necessary that their testimonies do not contradict each other, otherwise-wise, both testimonies will be considered(l void and the article in question will be considered unclean. CR # 57. Among the purifying agents one is a technical process. If such a technique is used after urination and the area is also cleansed in the proper way, if after this, some fluids come out, they will be considered ( clean and there is no need to wash them. (See rule 64)

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CR # 58. Another purifying agent is that blood which comes out when an animal is slaughtered. If such blood comes out in a normal quantity, the blood which remains in the body of the animal will be considered CR # 59. If the changes in the qualities of water which make it unclean, and the water has a regular source, this also is considered as a purifying agent.

USING A LAVATORY CR # 60. It is necessary for a responsible person to cover his private parts from other responsible people, even from a person who suffers from mental illness or a child who is able to discern right from wrong. However, this is not necessary for the wife and the husband. Special covering is not necessary to cover one’s private parts. What is necessary is to cover them from other responsible people at all times. CR # 61. When using lavatory one must not face or turn his back towards the direction of the Ka’ba. Only in an emergence one is not obliged to observe the above rules. A child should not be seated with his face or back to the direction of the Ka’ba. However, if the child himself sits in such a way, it is not obligatory for others to prevent the child.

CR # 62. It is unlawful to use the following places for a lavatory: (a) Private property without the consent of the owner. (b) A place prepared for special people. (c) All places that, being used as lavatory, would cause disrespect to things associated with religion, such as on the graves of the pious people, etc.

The rectal-outlet can only be cleansed with water in the following cases: (a) If besides feces some other unclean substance such as blood, etc. has come out. (b) Around the outlet an area larger than usual has become unclean. (c)

Some unclean substance from outside has come in contact with the area. In other cases the area can also be cleansed with other materials besides water in the following ways, although it is better to wash it with water: (a) According to necessary Ihtiyat, the materials used should not be less than three units. (b) If the area is not cleansed with three units, more units must be used until the area is completely cleansed. (c) The materials used must be dry or their wetness must not transfer to the area. (d) The materials used must be clean and not of respectable objects. CR # 63. Nothing besides water cleanses the. outlet of urine. If the urine outlet is washed in water not less than a ’Kur’ in quantity or running water, after the urine is completely removed it is sufficient to wash the area just once. However, with water less than a Kur’ in quantity, the outlet must be washed twice or still better three times. If one doubts whether the area is cleansed or not, one has to wash them even if he had the habit of washing after using the lavatory.

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ESTIBRA Estibra is a technical method, used to clean up the urinary track. CR # 64. It is preferable for the males to use this method in order to be sure that nothing is Left in the urinary track. If this method is used and the outlet is washed, the fluid coming from the urinary track, other than blood, semen,

or urine will be considered clean. Estibra should be done as follows: (a) First, if the rectal-outlet is not clean it should be washed or completely cleansed with other materials. (b) Using the middle finger of the left hand, the urinal track should be squeezed from the outlet to the penis, three times. (c) Then taking the penis between the two fingers, the thumb and the middle finger, squeezing it move the fingers with slight force to the urinal outlet, three times. (d) The glans-penis should, | be pressed three times. CR # 65. After the above method is used, the fluids that come out (a) after having romance with one’s wife, (b) after a semen discharge (c) and after urinating sometimes, all will be considered clean, provided, the outlet is washed after urination.

CR # 66. After using the above method and washing the outlet if one doubts about the coming fluid whether it is one of the three kinds already mentioned or it is urine, such fluid will be considered clean. CR # 67. if one doubts whether he has used the method or not and some fluid has come out from the urinal track, such a fluid, in this case, will be considered unclean.

CR # 68. If one may doubt whether the Estibra he has done was proper one or not, if some fluid has also come out, the fluid will be considered clean and it will have no effect on one’s Wudu. CR # 69. If one has not done Estibra but because of the long time since his urinating is certain that no urine is Left in the urinal track, if some fluid comes cut of which he is doubtful, such fluid will be considered clean and will

have no effect on the validity of one’s Wudu. If one after urinating has had Estibra and some fluid comes out that is either urine or semen, in such a

case, it is necessary, according to Ihtiyat, to have Ghusl and also Wudu. But if he did have Wudu after Estibra, only. Wudu is sufficient and no Ghus! is necessary. CR # 71. The females do not need to have Estibra. If some fluid comes out

after urination and washing of the area, such a fluid in their case will be

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Sabon clean and will have no effect on the validity of their Wudu or Ghusl.

THINGS PREFERABLE WHEN USING

A LAVATORY

(a) When using lavatory one should be away from people so that no one sees him. (b) It is recommended that while using a lavatory, one should cover the head. (c) While using a lavatory one should shift the weight of the body to the left leg. (d) It is recommended to enter with the left foot and leave with the right foot. It is recommended to urinate before prayer, going to bed, having sex and after a semen discharge. Things Abominable When Using a Lavatory (a) When using lavatory it is abominable to race the sun and the moon, but if the private parts are covered, there is no harm. (h) Facing the wind, on the road or streets, in front of doors and under the fruit bearing trees etc. (c) Eating when using a lavatory. (d) To stay in a lavatory for a long time. (e) Washing the private parts with the right hands. (f) Talking except when necessary or mentioning the name of God. (g) To urinate while standing, on a solid ground, in the holes of creeping creatures and in water, especially still water. (h) Preventing excrement more than usual.

SECTION NO. 3. WUDU (1) The reason for which Wudu is required. (2) The conditions. (3) Things invalidating Wudu.

THE FORM (a) Washing the face, forehead and both the sides cheeks, eyes, nose and

chin. (b) Washing the hands from the elbows to the tip of the fingers. (c) Wiping the front part of the head. (d) Wiping the face from the tip of the toes to the ankles.

THE CONDITIONS a. Water used for Wudu must be absolutely pure, that is, it must not be mixed with other liquids, such as juices and milk, etc. b. Water must be clean. c. Water and the space where one is going to have Wudu must not be usurped. d. Pot used as a water container also must not be usurped. e. Pot must not be made of silver or gold. f. Places to be washed or wiped should be

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clean before starting Wudu. g. There must be enough time for Wudu, that is to say, enough time for Wudu and the prayer for which one intends to have Wudu. h. Wudu must be completed with the sole intention of obeying God and for no other reason. i. Wudu must be completed in the proper form and sequence. j. Wudu must be had in consecutive order without any interval between its acts. k. Wudu must be had without the help from others. 1. There must be no cause to prevent one from having Wudu. m. For the places to be washed or wiped, there must he nothing preventing water from reaching the skin, such as dirt or plaster etc.

THINGS AND CONDITIONS INVALIDATING WUDU The following things and conditions invalidate Wudu: a. Discharge of semen or urine b. Discharge of feces ‘ c. Discharge of stomach wind through theoutlet of the feces. d. Sleep in which the eyes stop seeing and the ears hearing. However, if the eyes do not stop seeing and the ears are still hearing, Wudu will not be considered void. e. The use of anything that stops one’s mind and reason from functioning, such as insanity, drunkenness or unconsciousness. f. Estihadah (the discharge of blood from the women’s womb other than the regular period). g. Janabat (the discharge of semen or having sex). The above outline was a description of the three factors in Wudu, the form,

the conditions and things that invalidate it. The following are details about these factors: About The Form

CR # 72 The area of the face to he washed, vertically is from the hairline on the forehead down to the end of the chin and normally whatever part of the face, the thumb and the middle finger can cover when they are completely widespread. CR # 73. People with unusually short or long fingers have to observe what people with normal physical conditions would do.

CR # 74. Even if a small portion of the described areas is not washed, Wudu will be considered void. Therefore, in order to be sure that the face is

completely washed, one must wash a little beyond the limits mentioned. (in 72 and 73) CR # 75. If one thinks that there exists some dirt around the eyes, for example, which may prevent water from reaching the skin, as long as he has

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eet reasons for his thinking so, he must remove the dirt before starting Wudu. CR # 76. If the skin of the face can be seen through the hair, for instance, the

beard is not thick enough, it is necessary to Let the water reach the skin. If the beard is thick enough and the skin of the face is covered, it is not necessary to Let the water reach the skin. CR # 77. It is not necessary to wash the inside of the nose and the portions of the eyelids which cannot he seen when they are closed, but in order to be sure that one has washed all that had to be washed one must wash some of those areas also. CR # 78. One who does not know that it is necessary to wash the areas mentioned or does not know whether or not such portions had been washed during Wudu which he has already had, he does not have to say again all the prayers that were prayed with such Wudu. CR # 79. It is necessary to wash downwards the face and the hands from the forehead to the chin and from the elbows to the tip of the ringers. If the race is washed from the chin to the forehead and the hands from the fingers to the elbows, such Wudu will be considered void.

CR # 80. If only wet hands are rubbed on the face and a little water has flowed down-wards, it will be considered sufficient.

CR # 81. After washing the race, the right hand must be washed before the left hand. CR # 82 In order to be sure that the hands are completely washed, one must wash a little from the arms above the elbows. CR # 83. It is necessary to wash the face and the hands at least once. A second time is preferable, but the third time or more is unlawful. A wash is a question of how one decides. If he pours water several times considering it one wash, it will be considered as once. If each time water is poured, he intends it to be one wash and has poured water three times they will be considered three washes.

CR # 84. After washing the hands it is necessary to wipe the front portion of

the head with the wet hand with the water from Wudu. It is necessary to wipe from the upper portion down-wards with the right hand due to Ihtiyat.

CR # 85. The front quarter of the head is the place to be wiped equal to the size of one finger according to Ihtiyat. It is a Mustahab Ehtiyat (preferable

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precaution) that from the front portion or the head an area of two inches wide and the of size of one finger it should be wiped. CR # 86. It is not necessary to wipe the skin of the front portion of the head. Wiping the hair of this part is also sufficient. But if the hairs are so long that they reach down to the face or other parts of the head, it is necessary to wipe those parts of the hair that arc close to the skin. CR # 87. If the hair is so long that it reaches down lo the face or other parts of the head, or very long hair of the front of the head is collected there and wiped, this will be considered sufficient for wiping. CR # 88. After wiping the head, the feet must be wiped with the hands wet from the water of Wudu. It is necessary to wipe the feet from the lip of the toes to the ankles.

CR # 89. The wiping of the feet in length starts from the tip of the toes to the ankle and according to Mustahab Ihtiyat to the joint of the foot and for its breadth there is no definite limit, although it is better that in breadth it should be equal to that of three fingers but better still would be to wipe the feet with the whole palm and fingers of the hands. CR # 90. When wiping the head and the face, it is necessary to wipe them with the hands but not in a way that they should be used to wipe the hands. That is, the hands should be rubbed on them not vice-verse.

CR # 91. The places to be wiped must be dry; if they are a little wet and if the wetness from the hand overwhelms their wetness, such a small amount of

wetness will be considered of no effect to the validity of Wudu. CR # 92 If no wetness is left on the hands, it is not allowed to get wetness for hands from new water to wipe the head and feet. The wetness of the hands must he from the water of the face and hands. In case, the wetness of the hands has dried up before wiping the head and feet, one may get wetness from his beard to wipe. CR # 93. If the wetness left on the hand is only sufficient to wipe the head, for wiping the feet, one has to get wetness from one’s beard.

CR # 94. It is not allowed to wipe the feet through socks or shoes. But, in case of an emergency or some sort of danger when it is not possible to take them off, it is necessary to place some clean material on them and wipe on top and according to Ihtiyat have Tayammum also. CR # 95. If the backs of the feet are unclean and it is not possible to clean them, one has to have a Tayammum instead of Wudu.

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CR # 96. It is also allowed to have Wudu by washing at once the parts which need to be washed instead of washing them in gradual steps. With the intention to have Wudu first one keeps his face under the water and then the right hand. The left hand can not be washed in this way, because with the wetness of the hand which is washed in this way, wiping is not allowed. CR # 97. In this kind of washing too, it is necessary to wash from the upper parts down-wards. The face must be washed with the water from the forehead and the hand from the elbow. The time for the intention of having Wudu in both ways is before starting to wash the lace. CR # 98. It is also allowed to have Wudu washing some parts by the gradual way of washing and the others by the instant way of washing.

PRAYERS TO SAY WHEN STARTING WUDU It is recommended that when starting Wudu upon seeing water one should say, "I start my Wudu with the name and praises of God who made water purifying and not unclean.’ Before placing the hand into the water, one should say, "God, make me of those who repent and purify themselves.’ When rinsing one’s mouth, one should say, ’God, dictate to me the principles of

faith on the Day of Judgement

in your presence. Open my tongue to

commemorate

rinsing the nose one should say, ’Lord,

thy names.’ When

make my face white on the day when faces will turn black. Do not blacken my face on the day when faces are made white.’ This should be said when washing the right hand, ’Lord, give my book of account into my right hand. Place me in Paradise forever and make my reckoning easy and favorable.’ This should be said when washing the left hand, ’Lord, do not give my book of account in my left hand or from behind my back. Do not make it be chained to my neck. I seek refuge in You from the fire.’ This should be said when wiping the head, "Lord, cover me with Your mercy, blessings and forgiveness.’ Finally, this should be said when wiping the feet, "Lord, keep me safe from falling down on the Day of Judgement when all feet will tremble and help me in my efforts to do all that will please You are Glorious and Merciful.’ DETAILS ABOUT THE CONDITIONS In Reference to Condition (n) and (b).

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CR # 99. A Wudu with unclean water or water mixed with some other liquid is not valid, even though one does not know that the water is not clean or is mixed or has forgotten this fact. All the prayers said with such Wudu are to he said again with proper Wudu.

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CR # 100. If the only available water is muddy and there is enough time for the prayer and for the water to become clear, it is necessary to wait according to necessary Ihtiyat, otherwise, one has to have Tayammum instead of Wudu. In Reference to Condition (c)

CR # 101. It is unlawful to have Wudu with usurped water or that which the owner does not allow one to use for Wudu.

CR # 102 The same rule applies if when having Wudu the water falls on a usurped place. If it is not possible to have Wudu elsewhere, one has to have Tayammum instead of Wudu. CR # 103. There is no harm in having Wudu with water from large streams, although one does not know whether the owner will allow one or not according to Ihtiyat one should not make from such waters if the owner would prohibit. The following are exceptions to this rule: (1) The owner prohibits it. (2) One knows that he does not allow it. (3) The stream is usurped. (4) The owner is immature or suffers from a mental illness. If because of forgetfulness one has had Wudu with usurped water, one’s Wudu will be considered valid, but if himself has usurped the water and forgetting the fact has had Wudu with the same, according to Ihtiyat one should consider it sufficient. If one does not know whether water is for public use or a certain group, he is not allowed to have Wudu with such water, unless he himself is a member of the group. In Reference to Condition (e).

CR # 104. If the only water available is in a pot which is usurped or is made of gold or silver, and it is not possible to take the water out of the pot in a legal way, one has to have Tayammum instead of Wudu. If the materials used in the construction of a water pool are not from Legal property, materials legally owned, even if a single brick is usurped and one’s common sense tells one that the usurped brick has been also used, it is a Mustahab Ihtiyat not to make Wudu with such waters. In Reference to Condition (f).

CR # 105. Before completing Wudu, if some of the places already washed or wiped become unclean, it will have no effect as to the validity of Wudu .

CR # 106. Uncleanliness of other parts washed or wiped in Wudu, has no effect can be cleansed later, except the private Ehtiyat should be washed before starting

of the body, besides the one to be on the validity of one’s Wudu. They parts which according to Mustahab Wudu.

CS an

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CR # 107. If one of the parts to be washed or wiped is unclean and after Wudu one doubts whether it was cleansed before starting Wudu, if during Wudu he was not aware of the situation, his Wudu will be considered void,

but if he did(I have it in his mind, his Wudu will not be considered void. However, if he knows that during Wudu he was aware of the situation, his Noe will be considered(I valid, hut in both cases, the unclean part must be cleansed. CR # 108. If the blood of a wound on the face or on the hands does not stop and water is not harmful, it is possible to have Wudu in the following way: After washing the parts to be washed, the wound must be kept under the water and pressed, thus, the blood stops for a while, and this with the intention of washing the wound for Wudu is sufficient. This Wudu will be considered(I valid. In Reference to Condition (g).

CR # 109. If the time Left is so short that after having Wudu there will be no time to pray the whole or part of the prayer, one has to have Tayammum instead of Wudu. If Wudu and Tayammum take the same amount of time, one has to have Wudu. CR # 110. If because of the shortness of time one has to have Tayammum instead of Wudu, he may have Wudu for other worship acts besides the prayers of that time. If one intentionally, had Wudu for the prayer for which he ought to have had Tayammum, the Wudu is void. Wudu can also be taken just to recite a portion of the holy Quran and such Wudu will also be considered as a worship act. In Reference to Condition (h).

CR # 111. When starting Wudy, it is not necessary to say one’s intention in words. Only if in order to cbey God a Wudu is completed, it will be considered sufficient for the ’intention’. In Reference to Condition (i).

CR # 112 If the places to be washed or wiped are not washed or wiped soon after the others and because of the delay no wetness is left on the hand to wipe the head, such Wudu will he considered void.

CR # 113. If due to the hot weather, the wetness dries up soon after a part is washed, the Wudu is valid.

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CR # 114. No harm will be done to Wudu for walking a few steps during Wudu. For instance, after washing the face and the hands if one walks a few steps, wipes the head and the feet, his Wudu is valid. In Reference to Condition (j).

CR # 115. If one himself cannot have Wudu, he is allowed to appoint someone as his agent to manage for his Wudu, even if he has to pay for it, and the payment is not difficult for him. However, he himself must have the intention and wipe the places to be wiped. If this is not possible for him, the agent with the hand of that man must wipe the head and feet of his principal. If this also is not possible, the agent should take the wetness from the hands of that person and with that wipe principal’s head and feet. CR # 116. Whatever is possible for a person to do of the washing or wiping in Wudu, he must do it himself and leave the rest for the agent. In Reference to Condition (K).

CR # 117. If one is afraid that using water in Wudu will make him sick or - that there will he no water to drink, he must not have Wudu. However, if he

does not know that water is harmful to him hut after using it discovers that it was harmful, his Wudu, will he considered valid. CR # 118. If the use of a small amount of water which is sufficient for Wudu

is not harmful, one must not use more than that amount. In Reference to Condition (1).

CR # 119. If one doubts whether or not there is something, preventing water from reaching the places to be washed or wiped, he has to remove such things first, or make sure that water has reached the skin of the parts to be washed or wiped.

CR # 120 If some dirt is under the nails, it will have no effect on the validity of Wudu. If the nails are cut, the dirt must he removed. If the nails are longer than usual, one has to remove such dirt from those parts of the nails which pave grown longer than usual. It is better to keep one’s nails moderately short.

CR # 121. If some of the parts to be washed or wiped are swollen, it is sufficient to wash or wipe the surface of the skin of such parts; if it has been torn off, it is necessary to let water reach underneath and wash the inside; if the skin has been partly removed, it is not necessary to wash the inside. If the skin sometimes attaches itself to the body and sometimes is hanging, it is necessary to wash the inside.

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CR # 122 If one has doubts about the existence of something preventing water from reaching the skin, as long as his doubt is commonly considered reasonable, he must make sure that water has reached the

CR # 123. If the not prevent water to the validity of water has reached

materials attached to the parts to be washed or wiped do from reaching the skin, they will be considered of no effect Wudu, but in a doubtful case, one has to make sure that the skin.

CR # 124 If before starting Wudu, one knows that on the parts to be washed or wiped some material exists which prevents water from reaching the skin, but after Wudu doubts whether such materials were removed before starting Wudu, or whether water reached the skin, if he thinks that during the time he wanted to have Wudu he was aware of the situation, his Wudu will be considered valid.

CR # 125 If one discovers after Wudu that something preventing water from reaching the skin of the parts to be washed or wiped was attached and he does not know whether it was there before starting Wudu or after it, his Wudu will be considered valid. CR # 126. After completing Wudu, if one doubts whether or not something existed on the parts to be washed or wiped that could prevent water from reaching the skin, if he thinks that during Wudu he was aware of the situation, his Wudu will be considered valid.

GENERAL CASES CR # 127. One who very often clothes in the matters about Wudu, must not pay any attention to them if his doubts arc considered(I as unreasonable. If one doubts whether his Wudu is still valid or not, he must consider it valid. However, if after urinating and without using Estibra, he has had Wudu and some fluid has also come out that he does not know whether is urine or

something else, he has to have Wudu again. CR # 128. If one doubts whether he has had Wudu or not, he must have Wudu again.

CR # 129. If one knows that he has had Wudu, and also something invalidating Wudu has taken place, but he does not know which one was first, if this happens before starting a prayer, he has to have a new Wudu but if it happens during a prayer, he has to discontinue the prayer and have a new Wudu. If it is after prayer, he does not need to pray again, provided, he

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thinks he was aware of the situation when starting that prayer. He should have Wudu for the coming prayers. CR # 130. If during Wudu one doubts whether or not all the parts were washed and wiped, one has to start Wudu from the beginning, if the wetness of the part before the part which he is washing or wiping, has completely dried up due to the lapse of long time. However, if the wetness on such parts has not yet dried, he has to work out for the part which has been forgotten and complete the remaining work. CR # 131. If after completing a prayer, one doubts whether he has had Wudu or not, if he thinks that when starting the prayer he was well aware of the situation, his prayer will be considered valid, but for the coming prayer, he has to have a new Wudu. CR # 132 If in the middle of a prayer one doubts whether he has had Wudu or not, his prayer is void and he has to have a new Wudu. CR # 133. If after completing a prayer one comes to know that his Wudu has become void, but does not know whether it happened before the prayer or after it, such prayer will be considered valid but for the coming prayers, he has to have a new Wudu. CR # 134. If because of illness a person cannot control his urine or stool, he has to observe the following rules: (a) If there is a chance to have Wudu and say the prayer, such a chance must not be missed, according to Ihtiya. (b) If the chance is only sufficient for the compulsory parts of the prayer, one has to give up those parts which are not compulsory to say. (c) If there is no chance even for some parts of Wudu or prayer, one has to have Wudu for every prayer and there is no need to have another Wudu for saying Tashahud or Sajdah, missed during its proper time. (d) It is not necessary for such a person to say the prayer soon after having Wudu, although it is better to do so. (c) A person who cannot control his urine or stool, after Wudu, is aliowed to touch the holy Quran. (f) Such a person must manage to keep his body clean from the urine or stool. (g) If it is possible to prevent the urine and stool during Wudu and prayer, one must do it even if it may require certain

expenses. (h) When such a person is cured, it is not necessary for him to make up all the prayers that were said during his illness. (i) If a person with an illness in question recovers during a prayer, it is necessary for him to say that prayer again. (j) If a person, due to illness, cannot control his stomach gases, he too

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has to follow the same rules as mentioned before for a person who cannot control his urine and stool.

ACTS THAT REQUIRE WUDU (1) All obligation prayers, except the prayer for a dead person. (2) A Sajdah or Tashahud missed during its proper time. (3) An obligatory Tawaf (walking seven times around the Ka’ba). (4) Swearing or promising God to have Wudu. (5) Because of a vow to touch the holy Quran. (6) In order to aap the holy Quran that has come into contact with some unclean substance.

CR # 135. It is objectionable to touch without having Wudu the translation of the holy Quran in any language other than Arabic. CR # 136. It is not necessary to prevent a child or an insane person from touching the holy Quran unless it causes disrespect to it. It is not lawful to touch the names of God without Wudu, no matter in what language they are written. It is necessary Ihtiyat not to touch the name of the

holy Prophet, the Imams, and the name of the daughter of the holy Prophet, Fatima Zahra, without having Wudu. It is not an offense to have Wudu before the time of a prayer in order to have formal purification, also if it is as preparation for a prayer before its time.

CR # 137. If one completes a Wudu, thinking that it is time for prayer, and discovers that Wudu was completed before the time, such Wudu will be considered valid. It is Mustahab (recommended) to have Wudu in order to say the prayer for a dead person, to visit the graves, a mosque, the shrines of the Imams, to carry, to read, and write the Quran, touch the margins of the

pages of the Quran, when going to sleep, and to have another Wudu in addition to the one still valid. If Wudu is taken for any of the above purposes, that Wudu will be sufficient for any of the acts that require Wudu, such as prayer, etc.

WUDU WITH BANDAGE CR # 137. If there is a wound, burn, or cut in a place to be washed or wiped in Wudu and the use of water is not harmful to it, one has to have Wudu in

the usual way, provided, such wound is not covered with something. CR # 138. If the wound is not covered and water is not harmful to it, after washing the other parts in the usual way, when it is time to wash the wound, it must be wiped by the hand with some moisture on it according to a necessary Ihtiyat but if this is harmful to it and the wound is not clean and

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cleaning also can not be done, its surroundings must be washed in the normal way from the upper parts downwards and according to a necessary Ihtiyat a piece of clean cloth must be placed on top of the wound and then wiped wiih the hand with moisture of Wudu and if placing clean cloth on it also can not be done, its surroundings must be washed in the normal manners and then according to a Mustahab Ihtiyat Tayammum should also be made.

CR # 139. If the wound is on the head or on the feet and there is no place left to be wiped, if the wound is open and a piece of clean can be placed on it and it can be wiped from behind the cloth it must be done but if this can not be done it wiping is not necessary but Tayammum is necessary according to Ihtiayt. CR # 140. If it is possible to open the bandage, it must be opened, if water is not harmful to it, one has to have Wudu in the usual manner, regardless, where the wound is. CR # 141. If there is a bandage at the face or hands and it is not possible to O-pen it and water is also harmful to it, whatever is possible to wash around the wound should be washed, and the wiping must he completed on top of a clean piece of cloth as mentioned in (138). CR # 142 If it is not possible to o-pen the bandage, but the bandage and the wound are clean and water is not harmful to the wound, one has to make the

water reach the skin and complete the rest of the Wudu.

CR # 143. If the wound or the bandage is unclean, and if it is possible to clean them and make the water reach the skin, they must be cleansed, allowing the water to reach the skin. CR # 144. If water is not harmful to the wound but it is not possible to make it reach the skin, or the wound is not clean and it is not possible to wash it, in

this case, one must wipe it from behind the clean piece of cloth. CR # 145. If the whole face, one or both hands arc covered with bandage, it is Ehtiyat to have Wudu according to the bandage process, and also a Tayammum in addition according to a necessary Ihtiyat.

CR # 146. If all parts to be washed or wiped for wudu are covered by bandage, it is necessary Ihtiyat to make wudu according to the bandage process and also Tayammum. It is not necessary that the material used for bandage be made of the same material with which it is allowed to say a prayer. If it is made of silk or is part of the animals which one is not allowed to use in prayer, still, in the case of bandage, it has no effect on the validity of Wudu.

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CR # 147. If the middle portion of the upper part of the feet is covered with bandage, whatever is remained uncovered from the sides of fingers and ankles they must be wiped in the usual way, and the bandage, according to the process of bandage. CR # 148. If on the face, hands, head or feet, there are more than one bandage, The work for The bandage must be done according To The process of bandage and for The places That are safe by the usual way.

CR # 149. If the bandage has covered unnecessary parts around the wound and it is not possible to remove it, one has to have Wudu according to the process of bandage as well as Tayammum, according to necessary Ihtiyat. CR # 150. If at the place to be washed or wiped for Wudu there is no wound, but using water is harmful to it, one has to have Tayammum and according to Mustahab Ihtiyat wudu according to bandage process also.

CR # 151. If a vein of the places to be washed or wiped for Wudu is cut and it is harmful to wash it, or it cannot be washed, one has to have wudu according to the process of wudu with bandage.

CR # 152 If Wudu, or any remove it, or difficulty, he bandage.

something is stuck to the places to be washed or wiped for part of the body to be washed in Ghusl, and it is not possible to is so difficult to remove that a person cannot afford such a has to have wudu according to the process of wudu with

CR # 153. The rule of having Ghus! with bandage mentioned in Wudu. The only difference is that one has gradual order,according to necessary Ihtiyat, not by the washing the whole body even if all conditions required parts, that it is not harmful would be present.

is the same as that to have Ghusl by the instantaneous way of like cleanliness of all

CR # 154. A person who has to have Tayammum instead of Wudu, if he has some bandage at the places to be wiped in Tayammum, he has to have Tayammum with the bandage in the same way as mentioned in Wudu.

CR # 155. A person who has had Wudu or Ghus! with bandage, if he knows that he will not be able to have Wudu or Ghusl, is allowed to say a prayer at the beginning of its time.However, if there is some hope that he will be able to have Wudu or Ghus! without the bandage before the time for a prayer is over, according to necessary Ihtiyat, it is better to wait. If close to the end of the time for the prayer, still it is not possible to have Wudu or Ghusl without bandage, he has to have them according lo the process of bandage and say the prayer. However, if the excuse for the bandage is over before the time of

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a prayer expires, it is necessary to have Wudu or Ghusl by the usual way and say that prayer again.

CR # 156. If due to illness, the eye-lashes are closed, one has to have wudu according to the process of wudu with bandage and due to Mustahab Ihtiyat make a Tayammum also.

CR # 157. One who does not know whether he is supposed to have Wudu or Ghusl according to the bandage process or by the usual way, according to a Wajih Ehtiyat, he should do it according to both ways. CR # 158. Prayers said with a Wudu according to the process of bandage will be considered valid, and other prayers also can be said with the same Wudu, provided, such excuse continues until the end of the time for that prayer.

SECTION NO. 4 THE OBLIGATORY GHUSLS (1) A Ghusl that becomes obligatory because of semen discharge or having sexual relations. It is called (Ghusl Janabat). (2) Because of blood discharge of period in the ease of the females (Ghusl Hayz). (3) Because of blood discharge of irregular period also in the ease of the females (Ghusl Estihazah). (4) Because of child birth (Ghusl Nifas). (5) Because of touching a corpse (before it has been given bath). (6) Ghusl of a corpse, that is, to wash the body in a certain process before it is buried. (7) A Ghusl that becomes obligatory because of vows, swearing or making a promise to have a Ghusl.

DETAILS ABOUT GHUSL NO. 1 The Causes: (a) Semen discharge, regardless of the quantity and the state of a person, such as sleeping or awake, having an orgasm or not, willingly or unwillingly. (b) Having sexual relations. Signs of Semen Discharge

(a) Orgasm (b) Ejaculation (c) Sluggishness of the body. CR # 159. If some fluid comes out and one is not sure whether it is semen or

some other fluid, if there is some of the above signs or all of them, the fluid will be considered semen.

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CR # 160. In the case of an ailing person. Ejaculation is not necessary; only if the two other signs are present, the discharging fluid will be considered as semen. CR # 161. If some fluid comes out and the person is not ailing, but of all the signs he had experienced only one was present, if before the discharge of such a fluid the person had a valid Wudu, one Gusl is enough , due to Ihtiyat, if did have wudu before the coming of the fluid he must do Gusl,due to

Ihtiyat, and wudu also according to necessary Ihtiyat. CR # 162 It is Mustahab (recommended) to urinate after a semen discharge. In case one has not urinated after a semen discharge, if some fluid comes that is not known whether it is semen or another fluid, such a fluid will be considered the same as semen.

CR # 163. In a sexual intercourse, if the Glans penis penetrates the female organ, regardless of its being the vagina or rectum or whether the person is mature or immature, with discharge or without it, both of them will be considered Junub and obliged to have Ghusl.

CR # 164. If one doubts whether the Glans penis penetrated or not, in this case it is not necessary to have Ghusl. CR # 165. If one may have a sexual relation with an animal (May God grant us refuge from such an evil act) and a semen discharge takes place, it is necessary to have a Ghusl and no Wudu is required.

If there is no semen discharge and the person had a valid Wudu before the act, in this case also, only a Ghusl will be sufficient.

If the person did not have Wudu before, it is a Wajib Ehtiyat (necessary precaution) to have a Ghus! as well as Wudu. CR # 166. If semen moves from its place but does not come out or one doubts whether it came out or not, in both cases, there is no need to have a

Ghusl. CR # 167. One who cannot have Ghusl, but is able to have Tayammum, such

a person is allowed to have sexual relations, even though the time for a prayer has already come. CR # 168. If one finds some semen on his clothes, knowing that it is his own for which he has not had a Ghusl, he must have a Ghusl, and say all the prayers that have been said after the discharge of that semen.

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ACTS FORBIDDEN FOR A JUNUB are forbidden for 2 Junub person who has not yet had Ghusl:

Placing something in a or enteringi (©) Reading the chapters a tee Gad cos eee ee reading them it becomes obligation to have a prostration. The chapters containing those verses are: (2) Chapter No. 32 (b) Chapter No. 41(c) Chapter Ko. 53 (d) Chapter No. 96 In all of the above chapters, mostly the verses which require prostration (Sajdah) are marked. Things Not Advisabie for 2 Junub Person To Do

The followings are Makruh (disliked, not advisable to do) for a person who is im the state of Janabat (one who has experienced a semen discharge or sexual intercourse), after the discharge and before having a Ghusl: (a) Eating (b) Drinking, but not after doing wudu(c) Reading more than verses from

the Quran, other than the chapters mentioned before. (d) Touching the cover or the margms of the pages of the holy Quran. (¢) To carry the holy Quran.

GHUSL FOR JANABAT This Gus! by itselfts 2 Mustahah act (recommended), but it is obligatory for prayez. CR # 169. It ts necessary to have a Ghusl because of Janabat for all the acts that requxe Wudua. However, there is no need to have a Ghusl for the prayer for a dead person, for the Sajdah which is necessary because of a mistake which may take place Curing prayer, thanksgiving Sajdah, and for the Sajdah whick becomes upon reading certain verses of the holy Quran, aithough x is Mustzhab Ihtryat for the prayer for a dead body to do wudu. CR # 170. Whea having 2 Ghusl, # is not necessary to specify the kind of Gus) one kas to have that whether # is Mustahab (recommended) or

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obligatory. Only if in or order to obey the order of God, the Ghusl is completed, this will be considered sufficient.

CR # 171. If one is sure that it is time for a prayer and with an obligatory intention he completes a Ghusl but later discovers that the Ghusl was completed before the time, his Ghusl will be considered valid. CR # 172 There are two ways of having a Ghusl: (a) A gradual process. (b) Washing the whole body instantaneously. According to the gradual process, one has to take the following steps: (a) He must have the intention for Ghusl. (b) With the same intention, wash the head and the neck. (c) Then wash the right side of the body. (d) Then wash the Left side of the body. CR # 173. If the above order is ignored because ignorance or forgetfulness the Gusl is void, however, Ihtiyat should be observed in considering the Gusl void if the left side is washed before the right side. CR # 174. In order to make sure that each part is properly washed, one should also wash a portion of the part of the body which was already washed and the part next to it, that is, when washing the right side of the body, same part of the neck and the left side of the body should also he washed. CR # 175. If after the Ghusl is completed, one comes to know that some part is left unwashed, but he does not know which part it is, it is necessary to have

Gusl again. CR # 176. After Ghusl, if one comes to know that some parts have not been washed, if this is from the Left side of the body, he only has to wash that part and it will he considered sufficient. However, if that part is from the right side of the body, after washing that part, the Left side of the body should also be washed. If that part is from the head, washing it in the usual way and both the right and Left sides of the body would be sufficient. CR # 177. Before the Ghus! is completed, if one doubts whether some of the parts of the left or right sides of the body are washed or not washed, it is necessary to wash the part which he thinks he has not washed and as well as those that one must wash after it in the normal cases. If his doubt is about the head and the neck it is for a necessary ihtiyat.

HAVING GHUSL INSTANTLY CR # 178. According to this process, water must cover the whole body at the same time. Therefore, if in order to have Ghusl in this way, one goes under the water, he must raise his feet up from the ground so that his whole body is covered with water and washed at the same time.

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CR # 179. It is not necessary that the intention for such a Ghusl must be made when some parts of the body are out of the water, having the intention when under the water also is good and valid.

CR # 180. After such a Ghusl, if one comes to know that some part of the body is not washed, whether he knows or does not know the part in question he has to have a Ghusl again. CR # 181. If the time is not sufficient for the Ghusl, according to the gradual order, but is sufficient for the instantaneous way of having Ghusl, one has to have a Ghusl by the latter process. CR # 182 If one is fasting an obligatory fast due to a vow or other such fasts, he is not allowed to have a Ghusl according to instantaneous method. However, if it is done by mistake, the Ghusl will be valid.

OTHER PRECEPTS OF GHUSL CR # 183. In the process of having Ghusl at once it is necessary that the body be cleansed before starting the required Ghusl but not in the process of Gusl gradually in which even if the body is cleansed along with the washing for Ghusl, it will be considered sufficient for the Ghusl and for cleansing the body. CR # 184. If one has become Junub in some illegal way and has a Ghus!l with warm water, he may perspire. Since such perspiration is unclean according to mustahab Ihtiyat, it is not allowed to say prayer with such perspiration, he should have a Ghus! with cool water. CR # 185. Even if equal to the point of a needle some parts of the body remain unwashed

after Ghusl, the Ghusl will be considered invalid. But

washing the parts that are not on the surface of the body, such as the inside of the nose, ear, etc., is not necessary.

CR # 186. If one doubts about some parts and does not know if they are of the outside surface or the inside surface, in such cases, it is necessary according to necessary Ihtiyat to wash.

CR # 187. If the holes for the earrings are so large that the inside of the hole has become an outside surface, it is necessary to wash them, otherwise, it is

not necessary to do so. CR # 188. Everything stuck to the body that prevents water from reaching the skin must be removed before starting the Ghusl. If before making sure

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that such things are removed, one completes a Ghusl, his Ghusl will be considered invalid. CR # 189. During Ghusl, if one doubts whether there is something on his body preventing water from reaching the skin, one has to make sure that there is no such thing on his body. CR # 190. When having Ghusl, the short hairs that are part of the body must also be washed with the body. But it is not necessary to wash the long hair. If the skin of the body is washed in such a way that the long hair is left dry, this will he of no effect to the validity of the Ghusl. But, if it is not possible to wash the skin without washing the hairs, they also must be washed. CR # 191. The existence of all the conditions necessary for the validity of Wudu must also exist for the validity of a Ghusl, with the exception of washing from the upper parts down to the lower parts, and the continuity of washing between the parts which have to be washed. Therefore, there is no harm in Ghusl to wash some parts together at the same time, and other parts later after the previously washed parts have already been dried up. CR # 192 A person who cannot control his urine, stool, or stomach gases, he must not lose the chance in which he can control them.

CR # 193. In the case where one has to pay for the water that one needs for his Ghusl, if one intends to pay it later without knowing whether the owner will agree or not, the Ghusl will be considered void, although, afterwards, he

will make the owner agree to receive the payment. CR # 194. If the owner agrees to receive the payment later but the person having Ghusl thinks of not paying him or of paying him from an illegally owned property, in such a case too, the Ghusl will be objectionable.

CR # 195. If one pays for the water from the money from which one has not paid the religious dues, such as khums, in this case, his Ghusl will he considered void.

CR # 196. If one doubts whether he has had Ghusl or not, one has to have it.

If after Ghusl, one doubts whether his Ghusl was done properly or not, one does not need to have Ghusl again.

CR # 197. While having Ghusl, if something invalidating wudu.u takes place, such as urination, etc. one has to start a new Ghusl according to Ihtiyat with the intention to do whatever may be his duty and do wudu also after it.

CR # 198. If because of the lack of sufficient time one has to have Tayammum, if he thinks that there is enough time for a Ghusl and prayer

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and he completes the Ghusl with the intention of only obeying God, his Ghusl will be valid, even if it is done to say a prayer. CR # 199. If a person who has become Junub doubts whether he has had Ghusl or not, in such a case, if he thinks that in the prayers he has said after

the Janabat, he was aware of his obligations, those prayers will be considered valid. But for the coming prayers, he must have Ghusl. Also, if other things invalidating Wudu other than the cause of Janabat have taken place, he has

to have Wudu as well. If there is still time, he has to say the prayer that he has already said. CR # 200. A person who has to have several Ghusl for various reasons is allowed to have just one Ghusl for all the causes. CR # 201. If some verses of the Quran, or the names of God are written on the body, and one wants to have Wudu or Ghusl by the gradual process, one

must wash such parts without touching them.

CR # 202 After having Ghusl for Janabat, there is no need to have Wudu. The same is true of the other obligatory Ghusl.

ESTIHAZAH (IRREGULAR PERIOD) One kind of blood discharge from the womb is called Estihazah. The signs are: (a) Mostly, the color of this kind of blood is yellowish (b) Cool (c) Comes out without pressure and burning. (d) It is not thick, but it is possible that sometimes it may have black or red color and come out with pressure and burning.

KINDS OF ESTIHAZAH This kind of blood discharge, quantitatively, is of three stages: (a) At the first stage, the minimum stage, the discharging blood reaches only the surface of a piece of cotton that is used to prevent the blood from reaching one’s clothes.

(b) The blood discharge of the medium stage, after reaching the piece of cotton, will penetrate into the cotton, but it still does not come out of the cotton. (c) The blood of the maximum stage is that which goes through the cotton.

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The Rules:-

CR # 203. During the blood discharge of the minimum stage, the general CR # is that a woman must have Wudu for each prayer, wash the uncleanliness and change the cotton. CR # 204. During the blood discharge for the medium stage, besides observing the rules about the first stage, she must have Ghusl each morning. CR # 205. During the blood discharge of the maximum stage, besides the observance of the rules about the two former stages, she has to have one Ghusl for the noon and the afternoon prayers, and another for the evening and late evening prayers. She must not allow an interval between the noon and afternoon prayers, otherwise, she has to have another Ghusl for the afternoon prayer. The same is true in the case of the evening and late evening prayers.

CR # 206. After having Ghusl, there is no need for Wudu unless something invalidating Wudu takes place. CR # 207. If the blood discharge stops before the time of a prayer and the - woman has not had a Ghusl for that blood discharge, still she has to have a Ghusl, although at the time of the prayer she is completely clean. CR # 208. During the blood discharge of the medium stage, she is allowed to have either Ghusl or Wudu first, although it is better to have Wudu first. However, during the blood discharge of the maximum stage, Wudu must be completed first.

CR # 209. If after the morning prayer the blood discharge of the minimum stage shifts to that of the medium stage, she has to have Ghusl for the noon and afternoon prayers. The same is true of the evening and late evening prayers if the shift has taken place after the noon and afternoon prayers.

CR # 210. If either of the two first stages 01 blood discharge shifts to the maximum stage after the morning prayer, for the coming prayer she has to follow the rules at-out the maximum stage. The same rule applies if this happens after the noon and afternoon prayers. CR # 211. During the two before the time of prayer, have a Ghusl before dawn God. However, after dawn,

later stages of blood discharge, if she has a Ghusl her Ghusl will be void, but there is no harm to for the night prayer in the hope of acceptance by she must have a Ghusl for the morning prayer.

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CR # 212. Besides the daily prayers, during blood discharge, only Wudu is sufficient for a prayer, whether obligatory or not, but if she wants to say the daily prayers again for the sake of precaution or in congregation, she has to follow the usual rules. However, for Salat of Ehtiyat, missing Sajdah, Tashahhud, or Sajdah for a mistake during prayer, if performed soon after that prayer, there is no need to follow the general rules. After the blood stops, she is require(I only to follow the rules for the first coming prayer.

TEST CR # 213. If she is not sure which kind of find out by testing with a piece of cotton, as knows that there will be no change with discharge, she is allowed to make a test, even

a blood discharge it is, she may mentioned previously, but if she regards to the stages of blood before the time of prayer.

CR # 214. If she starts a prayer without a test and she has followed the general rules and her intention is to fulfill her obligation, her prayer will be considered valid, otherwise, it will not be valid.

CR # 215. If she cannot test herself, she has to follow the general rules about what certainly is the case. For instance, if there is a possibility that the discharge could be one of the first two stages, she has to follow the rules about the first one, and if it is about the two later ones, she has to follow the rules about the medium stage. If she knows that sometimes before the discharge was of a certain stage, she has to follow the rules about the same. CR # 216. At the beginning of the blood discharge if blood has not yet come out from the womb, this does not invalidated the Wudu or Ghusl. If the

blood has come out, regardless of its quantity, it invalidates them.

CR # 217. If she knows that since she has started Wudu or Ghusl a discharge has taken place, she is allowed to postpone the prayer till the time that she knows there will be no discharge.

CR # 218. If she knows that before the time for a prayer expires blood will stop or it will stop for a time long enough to complete a prayer, she has to wait, according to Ihtiyat, for that time and pray at that time.

CR # 219. If after Wudu or Ghusl, the blood apparently stops and she know that later it will stop completely before the time for prayer will expire, she has to wait, according to Ihtiyat, for that time and when the blood has completely stopped, she should have Wudu or Ghusl and pray. In the same case, if the time is very short, there is no need to have Wudu or Ghusl again.

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CR # 220. In the case of the two latter stages when she is completely clean, she must have Ghusl, but if she knows that since she started Ghusl for the previous prayer there had been no discharge in between, there is no need to have a Ghusl again.

CR # 221. In all stages, soon after the Wudu or Ghusl, she must start the prayer, but there is no harm to say the non-obligatory parts of the prayer, such as Adhan, etc. after Ghusl. CR # 222. If the prayer is not started soon after the Ghusl or Wudu, she has to repeat them (Wudu and Ghusl) again and start her prayer without delay.

CR # 223. If the discharge is continuous and it is not harmful to her health, she should, according to Ihtiyat, prevent it before and after having Ghusl. If it is not done willingly, and the blood has come out after the Ghusl, she should according to Ihtiyat have Ghusl again as well as her prayer. CR # 224 If the discharge continues during the Ghusl, it will be of no effect to the validity of the Ghusl, hut if it changes from the second to the maximum stage, the Ghusl must be started from the beginning. CR # 225. It is a Mustahab Ehtiyat (preferable precaution) that if it takes place during fasting in the daytime, she should prevent the blood discharge as far as possible but if she did not do the Gusl for Maghrib and ‘Isha prayers but did do Gusl before dawn of the day that she wants to fast and with the Gusls that she is required to do during the day her fast is valid. CR # 226. It is Ehtiyat (precaution) that the fast with a discharge of the maximum stage is only valid if the Ghusl for the evening and the late evening prayers before that day and the obligation Ghusl for the prayers of that day are completed.

CR # 227 If the discharge starts in the afternoon and she has not had Ghusl until the evening, her fast will he considered valid. CR # 228. If the discharge has shifted from the minimum stage to the second one before the time of a prayer, she has to follow the rules for the second stage in that prayer. If the change is from the second to the third, she has to follow the rules for the maximum, the third stage. The Ghusl that is taken for the second stage will be of no use; she has to have it again for the third stage.

CR # 229 During a prayer, if the second stage changes to the third one, she has to discontinue the prayer, according to Ihtiyat, and have Ghusl for the third stage, clean herself, and say that prayer. If she has no time, she should have Wudu and Tayammum instead of Ghusl. If there is no time for

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Tayammum also, she should complete that prayer and say another one afterwards as a redemption according to Mustahab Ihtiyat. This is also true of the change from the first to the second or third stage, except that the _ Ghusl for the second stage will not be sufficient for Wudu. CR # 230. If during prayer the discharge stops but she does not know whether it has stopped from the inside, if after the prayer she Learns that the discharge has stopped completely, it is necessary for her, according to Ihtiyat, to do Gusl, wudu and gain. CR # 231 If the third stage changes to the second, for the coming prayers she should follow the rules for the second one. For instance, if this happens before the noon prayer, she should have Ghusl and Wudu for the noon prayer, and only Wudu for the other prayers of that day. CR # 232 If the third stage changes to the first one, she should follow the rules about the third stage for the first coming prayer and those of the first stage for the other prayers. The same is true of the shift from the second to the first. CR # 233. If any of the rules is not followed, her prayer will be void. CR # 234. It she wants to do some thing other than prayer that requires wudu, like to touch the holy Quran, if it is after prayer , she must do wudu

besides the wudu with which has just said the prayer.

CR # 235. After following the rules of purification, she is allowed to enter a Mosque, to stay there and read the chapters containing the verses that require a Sajdah, even though the cotton is not changed. CR # 236. The prayer for the unusual natural happening is also obligatory for her if such thing happens during the blood discharge. CR # 237. If such things happen during the time of the daily prayers, she has to have another Ghusl.

CR # 238. If she wants to say the redemption for same prayers, she has to follow the general rules for each of such prayers.

CR # 239. If she knows that the bleeding is not from a wound, regular period, or child-birth, she has to follow the rules for ’Estihazah’ (irregular period). Even if she doubts which kind of.a blood discharge she has and there is no sign of the other kinds, still, she has to follow the rules about Estihazah according to a Wajib Ehtiyat.

~~

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PERIOD)

Definition: Regular period or menstruation is a blood discharge from the womb. It is experienced for a few days at monthly intervals. Signs: CR # 240. It is mostly: (a) Thick (b) Warm (c) Of black or red colors (d) Comes with pressure (e) Causes a little pain. CR # 241. The kind of blood discharge which girls under nine years of age and women after menopause experience, is not menstruation blood. CR # 242 It is possible that pregnant women and those who breast feed babies, also experience menstruation blood discharge.

CR # 243. The girl who docs not know completed or not, if she experiences a menstruation or without those signs, such menstruation without signs and with signs

whether her nine years have been blood discharge with the signs of a discharge will not be considered it will be considered menstruation.

CR # 244. A woman who doubts whether she has reached the age of menopause or not, if she experiences a blood discharge and does not know whether it is menstruation blood or another kind, she has to consider it as menstruation blood discharge.

CR # 245. This blood discharge does not last too long. It lasts between three to ten days. CR # 246. According to Ihtiyat, there must be no intervals in the blood discharge which occurs in the first three days. For instance, if there is a one day interval in three days, this will not be considered as menstruation blood. CR # 247. In the beginning the blood must come out, but it is not necessary

for it to be released in all three days. Even if there is a discharge inside the womb, it will be considered as part of the period.

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CR # 248. It is not necessary for her to experience the discharge in the first and fourth nights, but in the second and third nights there must be some discharge. CR # 249. If she experiences a t-blood (discharge for three consecutive days with the general signs, or she experiences it during her habitual days, if after an interval this is repeated again and the whole time of the interval is not more then ten days, the whole time, including the interval will be considered as menstruation. CR # 250 A discharge which is less than three days and more than ten days and is not known whether it is due to a wound or menstruation, it cannot be considered as menstruation discharge.

CR # 251. If she does not know whether it is due to a wound or menstruation, according to necessary Ihtiyat she must perform ll her worship acts and stay away from all things that are not lawful to do during menstruation. CR # 252. If one doubts whether the kind of the discharge is Estihazah or menstruation, if it has the general signs of the latter, it will be considered(I as menstruation. CR # 253. If one doubts whether the discharge is due to the loss of one’s virginity or mense, in such a case, she must examine herself by placing a piece of cotton inside, and after a while, examine. If the blood has gone around it, the discharge will be considered due to the loss of her virginity, but if it has gone into the center of the piece of cotton, it will be considered as menstruation. CR # 254. If a discharge takes place for less than three days and she is clean, again, there is a discharge during the habitual days, or with the general signs, in such a case, the second discharge will be considered

as menstruation,

although the first one may have taken place during the habitual period.

RULES

DURING

PERIOD

The following are prohibited acts for a woman to do while she is experiencing menstruation: (a) All worship acts which re4require Wuzu, Tayammum, or

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Ghusl. (b) All that is prohibited for a Junub before having Ghusl. (c) To have sexual relation for both the parties. CR # 255. Even in the days when she is not sure whether she is having menstruation or not, according to the law, she has to consider herself as having menstruation and she is not allowed to have sexual intercourse. For instance, one who experiences a blood discharge after the tenth day, according to the law, has to consider herself as menstruating a number of days that are equal to the usual period of her other female relatives. She also is not allowed to have sexual relation. CR # 256. If one may have sexual relation with his wife during her period, he must ask forgiveness from God and preferably pay some money as an expiation. CR # 257. Except for sexual intercourse, other sexual enjoyments are allowed. CR # 258. The amount of money to he paid is as follows, depending upon the stage of the period when one has had sexual intercourse: (a) For the first third of the period, eighteen carats of gold. (b) For the second third, nine carats of gold. (c) For the last third, four and a half carats of gold. CR # 259. The expiation must be paid in carats of gold, or if this is not possible, its value in money must be paid according to the price of the time of payment if it would be different from the price during committing the sexual act.

CR # 260. If one has had sexual intercourse in each of the three parts of the period, one is required to pay the total amount. CR # 261. If sexual intercourse takes place several times during the period, it is better to pay for each time. CR # 262. During intercourse, if a man comes to know that the woman has her period, he must withdraw, otherwise, he should pay the expiation.

CR # 263. Even if sexual intercourse takes place beyond the bonds of marriage, thinking of her as one’s wife, during a women’s period, still, one should pay the expiation according to Mustahab Ihtiyat.

Bp.:

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CR # 264. If one had sexual intercourse during the period due to forgetfulness or ignorance, he (Does not have to pay the expiation.

CR # 265. To divorce a woman while she is experiencing menstruation, will not be effective. If it is pronounced, it will be considered void. CR # 266. If a woman says that she is having her period but in reality she is not, still her words must be accepted if one is not sure that she lies.

CR # 267. If a blood discharge starts during a prayer, the prayer becomes void. CR # 268. If during prayer she doubts whether her period has started or not, her prayer will be considered valid. CR # 269. After the period is over, she has to have a Ghus! for the worship acts that requires either Wuzu, Tayammum or Ghusl. Ghusl must be had in the same way as the Ghusl for Janabat, but it is better to have Wuzu also. CR # 270. After she is clean, even before Ghusl, it is not an offense to have sex or to get divorced. In the case of sex, it is a strong Ihtiyat for her to wash and sex should not take place before the private part is washed and it is Mustahab Ihtiyat that sex should take place only after Gusl. However, acts such as staying in a mosque or touching the holy Quran will not be allowed for her until she completes the Ghusl.

CR # 271. If the water is not sufficient for both the Ghusl and Wuzu, it must be used for Ghusl and according to Ihtiyat have a Tayammum for Wuzu. If it is only enough for *Wuzu, a Tayammum is required instead of Ghusl and if there is no water at all, one Tayammum is required for each of the Ghusl and the WUZU. No redemption is needed for prayers missed while having a period, but it is necessary to manage for a redemption for the fast that the woman has missed during the Month of Ramazan because of her menstruating condition. A woman experiencing menstruation is not allowed to fast during the Month of Ramazan.

CR # 272 If it is time for a prayer and she knows or thinks that her period is going to start, she must not delay the prayer.

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CR # 273. If she delays from the beginning of the time of a prayer for a time that is sufficient for prayer and a formal purification and after that her period starts, she has to manage for the redemption for such a prayer. CR # 274. If the blood stops at the end of the time for a prayer and the remaining time is sufficient for having Ghusl and one Rak’at prayer, she must manage for that prayer. Otherwise, the redemption is due. CR # 275. If she doubts whether the time is sufficient for prayer or not, in such a case, she has to say that prayer. If she thinks that the time is not sufficient and does not say the prayer, later discovers that it was sufficient, she has to manage the necessary redemption. CR # 276. It is recommended that when the time for a prayer comes, she should clean herself, have Wuzu, or in case she cannot have Wuzu, have Tayammum, sit where she used to pray facing the Qiblah, say some ’Du’a’ informal prayers and salawat (asking God to bestow His blessings upon Muhammad and his family).

Different

Experiences

During a Period

Because of time and the number of days, a period may have these forms: (a) Starts at a known day till another known day. (b) The starting day is known, but the number of days are not. (c) The number of days are known but not the starting time. All the above three cases are called ’habit’. This habit or experience takes place if the same has happened in two consecutive months. (d) Women of no fixed habit (confused). (e) The beginner. (f) The woman who has forgotten her habit. In case of some confusion, the law has set up

certain standards like the following ones to make things for a woman during her menstruation easy to follow as required by the law: (1) The standards of the general signs. (2) The cases in a, b, and c. (3) That a period is not less than three days. (4) That it does not exceed ten days. (S) That the time between the two period is not Less than fifteen days. CR # 277 If her experience is one of those in a, b, and c, but by chance, within ten days the discharge takes place twice with an interval in between, in such a case, the whole time including the interval, will be considered as menstruation. It will be no problem if the discharge starts one or two days before the known time.

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CR # 278. If one of the two discharges has none of the general signs and is not in the habitual time, such a discharge will be considered as Estihazah. CR # 279. If the two discharges exceed ten days but the interval is less than fifteen days, if one of them is in the habitual time, the other one will be considered as Estihazah, even if it has the general signs. CR # 280. If none of them is in the habitual time, the one that has the

general signs will be considered as menstruation and the other as Estihazah. If both have the general signs, the first one will be considered as menstruation. If none have the general signs, she has to follow the rules for Estihazah for both of them.

CR # 281. If she experiences a discharge for the first time, if it is more than ten days all with the general signs, she has to consider her number of days e4equal to the number of the habitual days of her kins women, and should consider the rest as Estihazah. CR # 282 If she has no kins women or their habits are different from her first period, she has to consider six or seven days as her period and should take precautionary measures up to the tenth day. In the coming months, she may consider three days as her period, and may take precautionary measures up to the sixth or seventh day.

Childbirth:

CR # 283. From the time that the first part of the baby’s body comes out of the womb, the blood coming from the womb at that time till the first ten days is called ’Nifas’, childbirth blood discharge. CR # 284. The blood that comes before the baby is born will not be considered as Nifas.

CR # 285. It is not necessary for the baby to have a perfect physical form, only if it is called giving birth, the blood released up to the first ten days of a childbirth will be considered as Nifas.

aa

GHUSL

FOR

CHILD

BIRTH

=

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CR # 286. It is possible that the childbirth blood discharge may take place just for a moment, but it does not exceed ten days.

CR # 287. If there are doubts whether a miscarriage has taken place or not, or whether that which has come out is a baby or not, in such a case, according to a necessary Ihtiyat she needs to examine herself and the doubt remains the blood will not be considered as Nifas. CR # 288. To stay in a mosque and all that is forbidden for her during her period is also forbidden for her in this case. Also, all that is necessary in the former case is also true here. CR # 289. Divorce and sex are not allowed in the state of Nifas, but if sexual

intercourse takes place, there is no need to pay expiation but it is Ihtiyat to pay. CR # 290. If before the tenth day, the blood stops and again a discharge takes place, as long as the total is not more then ten days, it will be considered as Nifas for which she has to follow the set rules of Nifas.

CR # 291. If there is no blood coming out but she thinks that blood is released inside, she has to examine herself with a piece of cotton. If there is blood inside, she has to have a Ghusl.

CR # 292. If the blood discharge exceeds ten days and she has a habitual experience in her menstruation, she has to consider the equal number of those days as Nifas and the rest as Estihazah7.ah. CR # 293. If her experience in menstruation is Less than ten days and she experiences Nifas more than the number of days in the former case, equal to that number she has to consider Nifas and give up her worship acts for one more day,according to Ihtiyat the rest as Estihazah or give up her worship acts to the tenth day. If it exceeds the tenth day, she has to consider the equal number of the days of her case in the habitual experience of menstruation as Nifas and the rest as Estihazah. In the latter case, she has to manage for the redemption of the acts that she had given up in the latter days which she considered as Estihazah.

CR # 294. After childbirth, if the blood discharge continues up to a month or more, the number of clays equal to that which she experiences in her

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menstrual period will he considered as Nifas and the rest as Estihazah.

Ghusl for Touching a Corpse CR # 296. If one touches the body of a dead person after it has become cold and before it is given a formal Ghusl, it is necessary to have a Ghusl, regardless, one has touched it willingly, by force, in one’s sleep, or while awake. Even if one’s fingernails or bones have touched the bones or the fingernails of the dead body, still, one has to have a Ghusl. CR # 297. It is not necessary to have a Ghusl for touching the dead body of an animal. . CR # 298. If the whole body of a human being has not yet lost its natural temperature but one has touched a part which has already become cold, still one does not have to do Ghusl. CR # 299. If one touches the dead body with his hair or touches the hair of the dead body, no Ghusl is necessary if the hair is so long that it cannot be considered as touching, otherwise, one has to have a Ghusl.

CR # 300. The rule for touching a human corpse is applicable from the time a baby in the womb reaches the age of four months till whenever he may pass away. If a baby dies before he is four months old in the womb, there is Gusl according to a Mustahab Ihtiyat for touching such a corpse. Therefore, if a baby is born dead, the mother has to have a Ghusl due to her body being in contact with the dead body of her baby. CR # 301. The child who is born of a dead mother has to have Ghusl when phe or she reaches maturity according to Ihtiyat. CR # 302. If one touches the dead body after it has been given all the three formal Ghusl, there is no need to have a Ghusl. CR # 303. If one touches the dead body’s that part that has already been given the third Ghusl but before the third Ghusl is completed for the whole body, still one has to have a Ghusl. CR # 304. If a person suffering from mental illness or if a child touches the body of a dead person, the former when he recovers and the latter when he has become mature must have a Ghusl according to Ihtiyat.

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CR # 305. If someone touched a portion that has some bone in it and is cut off from a dead body that has not yet been given all the three Ghusls, or from the body of a living person, he has to have a Ghusl, but no Ghusl is necessary for touching the portion which was cut off and had no bone. CR # 306. According to necessary Ihtiyat there is Ghusl necessary for touching a piece of bone that has no flesh if it is given no Gusl, regardless, it is from a dead or living person there fore there is Gusl for touching the tooth of a dead person if the dead person is not given Gusl but there is no Gusl for touching a piece of without flesh which is separated from a living person or even it may have little flesh. CR # 307. For touching several dead bodies or touching one dead body several times, only one Ghusl is sufficient.

CR # 308. Before having this Ghusl, it is not an offense to stay in a mosque, have sex and read the chapters of the holy Quran containing the verses which require Sajdah, but it must be taken for prayers, etc.

SECTION NO. 5. Rules

About

a

Dying

Person

CR # 309. When a Muslim is dying, whether mature or immature, male or female, such a person should be laid down on his back, facing the Ka’ba in such a way that his feet are stretched towards that direction. CR # 310. It is Mustahab Ihtiyat to leave the dead body in the same position until it is given all the three Ghusls, but after the Ghusls are completed, it should be laid down on its back for the prayer. The head should be placed to the right hand of the person saying the prayer while facing the Qiblah.

CR # 311. It is the obligation of every mature Muslim to place the body of a dying person in the right position. CR # 312 It is recommended, Mustahab, that the following statement should

be dictated to a dying person. (a) There is no God, but Allah. (b)

RULES

ABOUT

A

DYING

PERSON

155

Muhammad is His servant and messenger. (c) That the twelve Imams (a.s.) after the holy Prophet were Allah’s deputies on earth and so on with the other principles of Islamic belief.

CR # 313. It should be said in such a way that the dying person would understand. The above statements should be repeated until the person dies. CR # 314. This ’Du’a’ should be dictated to the dying person: “Lord, forgive my numerous sins and accept my little obedience to you. Lord, it is You who accepts little and forgives many. Accept the little from me and forgive my sins which are many. Lord, it is You who forgives and covers the faults. Lord,

have mercy on me, for you are the Most Merciful." CR # 315. It is recommended to place the dying person at the place where he used to say his prayers if he is facing difficulty in dying, provided, it does not disturb him. CR # 316. It is recommended

to recite chapters 36, 37, 33, verse 254 of

chapter 2, verse 54 of chapter 7, the three last verses of chapter 2, and as much as possible from the holy Quran when one is dying.

Things

Should Not Be Done to a Dying Person:

(a) The dying person should not be left alone. (b) Nothing heavy should be placed on the dying person’s stomach. (c) A Junub, or a woman during her period should not go where one is dying. (d) Talking too much, lamenting, and leaving women alone with the dying person should be avoided. Things

Preferable

After The Death of a Person

(a) The eyes and the lips should be closed and the chin bones should be pressed against the upper teeth. (b) The arms and legs should be stretched. (c) The body should be covered with a sheet of cloth. (d) If death has taken place during the night, the body should not be Left in darkness. (e) People should be informed for the burial. (f) The burial should not be delayed, unless death is not certain in which case it is necessary to wait. Also, if a

pregnant woman has died with a living child in her womb, in this case too, the

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burial must be delayed until the child is taken out through a cut in her Left side.

Rules

About

Ghusl, Shroud,

Prayer and Burial

CR # 317. Ghusl, shrouding, prayer and the burial of a Muslim who has died is the obligation of all responsible Muslims. If this obligation is fulfilled by one or a few people, the rest will be free of this obligation. However, if it is not done, all of them will be considered as committing a sin. CR # 318. If one undertakes the whole work about a dead person, it is not necessary for the others to take part in it, but if he Leaves the work incomplete etc, the others are obliged to complete it. CR # 319. If one is sure that others are performing the rituals about a dead person, it is not necessary for him to take part in it, but if he doubts or thinks that nobody is doing the work, it becomes necessary tor him to take part in it. CR # 320. If one is sure that the rituals for a dead person are not properly performed, he has to do them in the proper way, but if he only thinks so or has doubts about it, in such a case, he will not be considered responsible for anything.

CR # 321. All the above rituals for a dead person should be performed by the permission of the guardian of the deceased. CR # 322 The guardian of a deceased wife is her husband, after him her guardian is the adult male who inherits her according to the Islamic laws.

CR # 323. If one says that he is the guardian or the executor of the will of a deceased person, or the deceased had permitted him to do the works, if what he says is true, or the body is in his custody, or two just people approve of what he says, or one trustworthy person approves it, what he says must be accepted. CR # 324 If someone was appointed by the deceased person to do the whole

work, such a person will be considered as the guardian in all such works. It is

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LAWS

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TS7

not necessary for such a person to accept the appointment, but if he accepts it, he will be obliged to do the necessary works.

THE

MANNER

OF

GHUSL

FOR A CORPSE

CR # 325. It is necessary to wash (give Ghusl) to a corpse three times. (a) With water mixed with powdered leaves of lotus tree. (b) With water mixed with camphor. (c) With pure water. CR # 326. The powdered leaves of a lotus tree or camphor must not be in such a quantity that may change the color of the water or that the water can no longer be called pure water, nor so little that no one could say that the water has been mixed with something. It should be in a small quantity. CR # 327. If someone dies during the hajj (Pilgrimage) in the state of Ehram (putting on a certain clothing as part of the requirements of the rules of hajj), his body must not be washed with the water mixed with camphor. Pure water must be used in this case, as a substitute for the second Ghusl, except if one’s death takes place in the state of Ehram for hajj (not ’umrah) and one has finished Sa’y (walking seven times between Safa and Marwa-the names of two places), in the second Ghusl it is necessary to use camphor. CR # 328. In the case where powdered leaves of lotus tree and camphor are not available or one is not allowed to use them, pure water must be used as a substitute for the first and second Ghusls.

CONDITIONS GHUSL

FOR

UNDERTAKING

WORKS

OF

(a) He must be a Muslim. (b) A follower of the twelvers’ school of law. (c) An adult. (d) Of sound reason. (¢) He must know the rules about Ghusl. CR # 329. If a non-Shia Muslim undertakes the work of giving Ghusl to another non-Shia Muslim according to his own school of law, there will be no obligation on the Shias. (f) The person who gives Ghusl to the corpse must . do it with the sole intention of obeying and pleasing God.

RULES

ABOUT

A

DYING

PERSON

158

CR # 330. It is necessary to manage for the Ghusl of a Muslim child even if the child is born out of the wedlock. CR # 331. One who has been suffering from mental-illness from childhood and with the same condition has become an adult if he can be considered a Muslim, it is necessary to manage for the Ghusl of such a person when he dies. CR

# 332. A miscarried

child of four months

or older must

also be

considered as an adult with regards to Ghusl. CR # 333. It is not allowed for a man to wash the body of a woman and vice-verse, but there is no offense if a wife washes the body of her husband or

the husband washes the dead body of his wife. CR # 334. Men and women are allowed to wash the dead(I body of a child who dies before completing three years, regardless of the child’s sex.

CR # 335. If no man is available to undertake the work about Ghusl for the corpse of a male person, the female relatives of the dead person, such as his mother, sister or aunt may wash his body beneath a cloth. If the dead person is a female, the male persons from her family may undertake the work by the above mentioned method. CR # 336. If a female undertakes the work of Ghusl for a dead female or male for a male, it is better not to cover the body, except the private parts. CR # 337. It is not allowed to look at the private parts of a dead(I person, but if the person doing the work of Ghusl does so, it will be considered of no effect to the validity of the Ghusl. The person who has looked at the private parts has committed a sin. CR # 338. The body of a dead person should be cleansed before starting to wash it for the three Ghusl.

CR

# 339. The process of washing (Ghusl) a corpse is the same as the

Ghusl for Janabat, although it is better to wash a corpse by the gradual process of Ghusl. Besides, the right side of the body should be washed before the left side.

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CR # 340. If a person dies during her period or the person died a Junub, in such a case, there is no need to wash the dead body because of period or Janabat. Only if the three necessary Ghusls for a corpse are completed, no other Ghusl will be required.

CR # 341. It is not lawful according to Ihtiyat to charge for one’s labor, doing the work of washing a corpse. If one undertakes the work in order to get money for the labor, such Ghus! will be considered void. It is not an offense to charge for the labor of providing the means and the materials for the Ghusl, such as managing for water, place, etc. CR # 342In case, water is not available to wash a corpse, Ihtiyat should not be ignored to give three Tayammums as the substitute for the three Ghusls and according to Ihtiyat one Tayammum should be given first for all three Gusls. CR # 343. The Tayammum given to a corpse must be completed by the hands of the person doing the work.

RULES

OF

SHROUDING

CR # 344. A corpse must he clothed with three pieces of cloth. (a) A loin cloth. (b) A shirt. (c) An over-all sheet. CR # 345. The loin cloth must cover the body from the navel to the knees. Although, it is better that it should cover the body from the chest to the feet. CR # 346. The shirt must be large enough to cover the body from the shoulders to the upper half of the Legs, or better to cover the upper portion of the feet.

CR # 347. The over-all sheet must be wide enough to cover the body when it is wrapped with the sheet, one side Lying on the other side, and long enough that both ends from the head and feet of the corpse could be tied up when the corpse is wrapped in it.

CR # 348. In the case of loin cloth and shirt, what is necessary is the minimum size as mentioned in 2, and 3, but the maximum size is preferable.

SHROUDING

CR # of the but in to pay

160

349. If all the heirs are mature and agree to pay for the maximum size shroud from the legacy, it is not an offense to use the maximum size, the case of an immature heir, it is a Mustahab Ehtiyat (precaution) not for the maximum size from his or her share of the legacy.

CR # 350. If the deceased has said in his will that the preferable shroud will be purchased with the money from the one third of the legacy or the will states that one-third of the legacy shall be spent for the cause of the testator, whether partially or as a whole is not specified in the will, in all cases, it is allowed to pay for the preferable size of the shroud from the one-third of the legacy.

CR # 351 If the deceased has made no will about the payment of the shroud from the one-third of the legacy, in such a case, if it is intended to pay for the shroud from the whole Legacy, with the observance of the social status of the deceased, the minimum price should be paid for the shroud. However, if the mature heirs agree to pay for the additional price, it is not an offense to pay for the shroud from their share of the Legacy. CR # 352 The shroud of a deceased wife must be managed by the husband,

even though she may have her own property. The husband has to also manage for the shroud of the deceased wife who was divorced by the revokable rules of divorce, and her waiting period is not expired before her death. CR # 353. If the husband is not mature or is mentally ill, the guardian of the husband has to pay or manage for the shroud of the deceased wife from the property of such husband.

CR # 354. It is not obligatory for the relatives to pay for the shroud of their deceased relatives, even though the deceased was his or her dependents although it is a Mustahab Ihtiyat to pay.

CR # 355. The clothes used for shroud must not be of the transparent quality that the body could be seen from behind the shroud. CR # 356. It is not allowed to use the skin of a dead animal or usurped material for shroud, even if other materials are not available.

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CR # 357. In case usurped materials are used for shroud, it is necessary to remove it from the body of the deceased, even if the corpse is already buried.

CR # 358. It is not allowed to use unclean materials or pure silk for the shroud or gilded materials should be used as a shroud, but it is not an offense in the ease of an emergency.

CR # 359. It is not lawful due to Ehtiyat (precaution) that the materials, made of the wool of inedible animals or of the skin of edible animals be used for shroud in normal cases, but it is not an offense if the materials for shroud

are made of the wool of edible animals, although it is better to avoid this also. CR # 360. If the shroud of a corpse becomes unclean, it is necessary to clean it even if the body is already placed in the grave. The shroud must be made clean in one of the following ways: (a) Washing. (b) Cutting the unclean part. (c) Changing the shroud. In ali cases, the easiest possible way should be observed. CR # 361. If one dies in the state of Ehram for hajj or ’umrah, he must be shrouded as in the normal cases. It is not an offense to cover his head.

CR # 362. It is recommended to manage a shroud during one’s lifetime, along with camphor, and the Leaves of lotus tree, as required for a dead

person.

HUNUT Rubbing witth some camphor on the parts of the body which one places on the ground during prostration in a prayer is called hunut. CR # 363. After Ghusl, hunut is necessary. It is necessary to rub some camphor on the forehead, palms, knees, and toes.

CR # 364. It is Mustahab (recommended) that some camphor should also be rubbed on the nose of the deceased person. The camphor must be fresh and powdered. The camphor that has lost its perfume will not be considered sufficient.

HUNUT

162 ES aeenn ec nT I HOH EE Se CR # 365. It is a Wajib Ehtiyat (necessary precaution) that first the camphor should be applied to the forehead, but for the other parts no order is required.

CR # 366. It is better to complete hunut before the corpse is shrouded(l, although it is not an offense to do it during shrouding or after the corpse is shrouded.

CR # 367. If one dies in the state of Ehram for hajj or ’umrah, it is not allowed to apply camphor in his case, except if the death has taken place in the state of Ehram for hajj after completing Sa’y (walking seven times between the two places called Safa and Marwa). CR # 368. 11 a woman whose husband has died before the expiration of her waiting period dies, although she was not allowed to use perfume after the death of her husband an(I before the expiration of the waiting period, still, it is necessary to give her hunut. (The waiting period called ’eddah is four months and ten days in which a widowed woman is not allowed to marry another person). CR # 369. It is Ihtiyat (precaution) not to apply other perfume to a corpse along with camphor or without it.

CR # 370. It is recommended that some Turbah (earth from the grave of Imam Hussain, a.s.) be mixed with camphor. Such mixture must not be applied to the places that may cause disrespect to the Turbah and it must not be of such quantity that when mixed with camphor it can no longer be called camphor. CR # 371. If sufficient camphor is not available, or it is just enough for Ghusl, hunut is not necessary. It is Mustahab (recommended) that two pieces of twig, newly cut from the tree, should be placed in the grave with the corpse. The Prayer For a Dead

Person

CR # 372 It is necessary to say the prayer for a dead person for all the adult deceased Muslim and the child who can be called a Muslim and is not less

than six years old.

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LAWS

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CR # 373. It is Mustahab to say the prayer for a deceased child, who is less than six years old, only with the hope of its acceptability to Allah, not considering it as an obligatory or a preferable act. The child who is born dead, in this case, it is not even Mustahab (recommended) to say this prayer. CR # 374. The prayer for a dead person must be said after the works of Ghusl, hunut, and shrouding are completed. If it is said before or during these works, although it may have been done due to forgetfulness, the prayer is to be said again.

CR # 375. One who wants to say the prayer for a dead person is not required to have Wuzu, Ghusl, or Tayammum, or to clean his clothes. Even if his clothes are not Legally owned still, it is not an offense to say this prayer with

such clothes; although it is Mustahab Ihtiyat to observe all that is required for the daily prayers with regards to formal purification and clothing. CR # 376. One who says this prayer must face the Qiblah (the holy Ka’ba) and the dead person must be laid on the ground on his back with the head to the right of the person praying and the Legs towards his Left.

CR # 378. The person praying must not he far away from the corpse also . If the prayer is said in congregation, the prayers of the people in the second and other lines, provided, the lines are connected, will also be considered valid. CR # 379. The person praying must stand at a right angle to the corpse, but this is not a required from those who are standing at the end of the long line of prayers.

CR # 380. It is Ehtiyat (precaution) That there must not be anything separating the corpse from the person praying, such as a wall or a curtain. Coffin is exceptional. CR # 381. The private parts of the corpse must be covered during the prayer.

CR # 382 The prayer for a dead person must be said in a standing position with the intention of seeking the pleasure of Allah alone. The deal person must he identified(1, for example, saying, "I pray for this dead(I person in order to seek Allah’s pleasure." Will he sufficient for this purpose.

PREFERABLE

THINGS IN BURIAL

164

CR # 383. If there is no one who can say this prayer in a standing position, it is allowed to say it in the sitting position.

CR # 384. If a person says in his will that a specified person should Lead the prayer after his death, for such a person it is only a Mustahab Ehtiyat (preferable precaution) to obtain permission to lead the prayer from the guardian of the deceased. CR # 385. It is lawful to say the prayer for a dead person several times, hut it is not an offense to do so if the decease(I had some religious distinction, such as knowledge and piety. CR # 386. If willingly or due to forgetfulness or because of some other acceptable excuse the corpse is buried(1 without the required prayer or after the corpse is buried it is discovered that the prayer was not valid in all cases, the prayer must he said on his grave before the body decompose.

The Form

of Prayer for a Dead

Person

CR # 387. The prayer for a dead(I person consists of five Takbirs (Allahu Akbars - God is Greater then everything else), as follows:

CR # 388. The Takbirs must be said in a consecutive order without an interval that may destroy the form of the prayer. This may happen when it could be said that he or she is not praying.

CR # 389. One who says this prayer in congregation, must also say all the Dw’as. Preferable

Matters

in This

Prayer

(1) The prayer to be said with formal purification, Wudu, or Tayammum according to Mustahab Ihtiyat. (2) In case the deceased is a male, the person praying alone, or as an Imam, should stand parallel to the middle part of the body, if the deceased is a female, the person praying should stand parallel to her chest. (3) The person praying should be hare-footed. (4) When saying a Takbir, he should raise his hands. (5) The prayer should be said in congregation. (6) The person praying should stand close enough to the

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165

corpse so that if his clothes are blown by the wind, they would touch the corpse. (7) The person leading the prayer should say all the Takbirs and Duw’as loudly and the others should say them in a low tone. (8) If the prayer is said in congregation, the people should stand behind, even if there is only one person besides the Imam. (9) Those praying should pray for the believers and the deceased a great deal. (10) Before the prayer is started, ’As-sa-Lat’, should be said aloud three times. (11) The prayer should be said in a place where many people can join the prayers. (12) If a woman during her period is joining the prayer, she should stand alone not in the lines of those praying. It is detestable (Makruh) to say this prayer in a mosque, but it is not Makruh in the Masjidul-haram, sacred Mosque in Mecca.

Precepts

of Burial

CR # 390. It is necessary to hurry the corpse in a way that no smell would spread and no beast can take it out, even if it would(i be necessary to close the grave with materials other than that which are dug out of the grave. CR # 391. If it is not possible to bury the corpse in a grave, it is allowed to place it in a special room for that purpose or inside a coffin. CR # 392 The corpse must he placed in the grave on its right side facing the holy Ka‘ba. CR # 393. If one dies on board at sea and the body. does not decompose or there is no obstacle to keep it there, it should be brought back to land for burial, otherwise, after completing the works of Ghusl, hunut, shrouding and prayer, it should be placed in a coffin, if this is not possible, something heavy must be tied to its legs then it should be thrown into the sea. If possible, the corpse should not be made an immediate prey for the beasts of the sea. CR # 394. If there is fear that the enemies may take the corpse out of the grave and disgrace it, it is necessary, if possible, to throw the corpse into the sea as mentioned above.

CR # 395. The expenses for building the grave stronger or throwing the corpse into the sea, if necessary, must be taken from the whole legacy.

THE FORM

OF PRAYER FOR A CORPSE

166

CR # 396. If a non-Muslim woman dies with a baby in her womb who is also dead, if the father is a Muslim, the woman should be buried on her left side with her back to the holy Ka’ba, the baby’s face will be towards the holy Ka’ba.

CR # 397. It is not allowed to hurry a Muslim in a non-Muslim graveyard and vice-verse.

CR # 398. It is not allowed to bury a Muslim in a place that may cause disrespect to him. CR # 399. It is not allowed to hurry a corpse in a place that is obtained by force or in a mosque that is made Wagf (assigned for a special cause) for other purposes. CR # 400. It is not allowed to hurry a corpse in another corpse’s grave unless the latter has completely become dust. CR # 401. Whatever is separated from the body of a dead person, such as nails, teeth, and hair, must also be buried with the rest of the body. It is only

Mustahab (recommended) to bury whatever is separated from the body in one’s lifetime, such as nails and teeth. CR # 402 If one dies in a well, tunnel, or other such closed places and it is

not possible to take one’s corpse out, there is no offense in filling up the well or the enclosed area, thus, making it a grave for the corpse. CR # 403. If a baby dies in the mother’s womb, and it is dangerous for the mother to leave the baby inside her womb, the baby must be taken out in the best possible gentle way and it is not an offense to cut the baby into pieces if necessary. This must be done by the husband if he is a specialist or some other male or her relatives or any other specialist. If none of the above mentioned people are available, anyone other than the people mentioned may do it.

CR # 404. If the mother dies and the baby is alive in her womb, even though there may not be hope for the survival of the baby, still, the baby must be taken out by the people mentioned in rule 403 in the same successive order, that is, first the husband, the relatives and so on. An opening must be

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LAWS

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167

made from her Left side and after the baby is taken out, the opening must he stitched.

Preferable

Things

in the

Burial of a Corpse

(1) It is preferable that the depth of the grave should be e4equal to the length of a person of a medium size.(2) The corpse should be buried in the nearest grave yard, unless other grave yard has some priorities, such as being the grave yard of the pious ones, or that people often visit it and recite some Du’as for the people buried there. (3) It is Mustahab (recommended) that the corpse should be placed on the ground near the grave. It then should be raised and placed on the ground three times .Each time it should he carried one step closer to the grave and then placed in the grave. (4) On the third time if the dead person is a male, his body should be positioned in such a way that his head would he close to the end of the grave where later his feet will have to rest. From this end of the grave, the corpse should he entered by the head and carried onwards until the body takes the prescribed position, that is to say, it is laid down in the grave on its side with the face towards the direction of the holy Ka’ba. (5) If the dead person is a female, on the third time her body should be placed in front of the grave and on the fourth time the whole body, at once, should be placed into the grave breadth-wise with the right side downwards until the body takes the prescribed position in the grave. When placing the body into the grave, the surface of the grave should be curtained with a piece of cloth. (6) It is also Mustahab (recommended) that the corpse should be taken very gently from the coffin and when entered into the grave, the prescribed Du’as (prayers) should be recited. (7) When the corpse is placed in the grave, the ties of the shroud should be opened and the face of the corpse should be placed on the pillow that should be made of earth. (8) At the backside of the body, some bricks or stones should be placed so that the body may not turn on its hack. (9) When the body is positioned in the right way in the grave, one should place one’s right hand on the right shoulder of the corpse and the left hand on the left shoulder of the corpse bringing one’s mouth close to the ears of the corpse, shaking the shoulders firmly say this three times: (I) “Listen! O so and so, son of so and so, calling the deaa ~erson by his name and his father’s name,then dictate to

the corpse the principies of belief.

GHUSL,

SHROUD,

PRAYER AND

BURIAL

168

Translation:

Are you holding the covenant that you had when you left us’? The covenant of your belief and your testimony that there is only one God Who has no partner.That Muhammad.ld (peace he upon him and his family) is His servant and Messenger who is the chief of the prophets and The last Messenger of God. That Ali, The leader of the believers, the chief of the deputies of God on earth, is the Imam whose obedience is made obligatory for the worlds by God. That Hassan, Hussain, ’Ali Ibn Hussain, Muhammad Ibn ’Ali, Ja’far Ibn Muhammad, Musa Ibn Ja’far, ’Ali Ibn Musa, Muhammad Ibn ’Ali, ’Ali Ibn Muhammad, Hassan Ibn ’Ali, and Al-Qa’em, the authority,

Al-Mahdi (may the blessings of God be upon them all), are the commanders of the believers and the trustees of God in His creation as a whole and your Imams, well-guided and pious. (2) Then say this, Did you understand,O so and so son of so and so? Then say this: "When The Two angels appointed by God will come to you and ask you about your Lord, The Prophet you had been following, your religion, your Book, your Qihlah (the place you had been facing during your prayers) and your Imams, don’t be afraid and grieved. Tell them that, "Allah is my Lord, Muhammad is the Prophet whom I followed, Islam is my religion, the holy Quran is my Book of guidance, the Ka’ba is my Qiblah and the commander of the believers, Ali the son of Abu-Talib, is my Imam.

Hassan Ibn Ali Al-Muj-ta-ha is my Imam. Hussain, the Martyr of Karbala, son of Ali, is my Imam. Ali, Zainul Abe-deen, son of Hussain is my Imam. Muhammad AlI-Bager, son of Ali is my Imam. Ja’far As-sa-deq, son of Muhammad, is my Imam. Musa Al-Kazim, son of Ja’far, is my Imam. Ali Al-Ra-za, son of Musa, is my Imam. Muhammad Al-Jawad, son of Ali, is my Imam. Ali Al-Hadi, son of Muhammad, is my Imam. Hassan Al-’askari, son of Ali, is My Imam. And

Al-Hujjat, Al-Muntazer, is my Imam. They, upon whom may Allah bestow His blessings, are my Imams, masters, leaders, and intercessors before Allah. I love them and hate their enemies both in this life and in the life to come.’ \

(3) Then say, ’O so and so,... calling the dead person by his name and the name

of his father,and

this: "Allah, the most

High, is the best Lord.

Muhammad (May Allah’s blessings be upon him and his family) is the best Messenger of God. Ali Ibn Abu-Talib and his eleven infallible sons are the best Imams. Whatever Muhammad brought from God is true, the

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questioning of the two angels in the grave is true, the Resurrection is true, the appearance of people before God is true, the Bridge is true, the Balance is true, the distribution of people’s book of accounts is true, Paradise is true, Hell is true, the coming of the inevitable Hour is true and the rising of everyone from the grave is true. Then this should be said, "Did you understand, O so and so? May Allah keep you safe and guide you to the right path. May Allah introduce you to your guardians in the place full of His mercy. Then this should be said, "Lord, make the earth spacious for both his sides and raise his soul to Yourself’. (10) It is recommended

that the person placing the corpse in the grave

should be bare-footed, bare-headed, and have formal purification. He should come out of the grave from the end wherein lie the feet of the corpse. It is also recommended that besides the relatives of the deceased, others present

should throw the dust by the hack of their hands and say: Enna Lellahe wa enna ellayhe raje‘un (we are from God and to Him we will return. If the deceased is a female, her close relatives should place her body in the grave, or one of her other relatives. (11) It is recommended that the surface of the grave, after it is filled up with earth, should be formed square or rectangular and that it should be raised four inches from the ground with a sign on it to make it recognizable. (12) Some water should be poured on the grave.(13) The people present should place their hands on the grave and recite the sura of Al-Qadr and ask Allah to forgive the deceased and say, "Lord, make the earth spacious on his both sides and raise his soul to Yourself. Meet him with a merciful welcome. Fill up his grave with mercy to make him needless of the mercy of other creatures.” (14) After the people leave the grave, one of the deceased relatives or one who is authorized by the guardian of the deceased should read the above mentioned dictation again on the grave. (15) It is Mustahab (recommended) that people should give condolence to the relatives of the deceased, unless it renews their grief. Also, it is recommended that, up to three days, the people Or the house of the deceased should be served food. It is Makruh (detestable) to eat in their presence. (16) It is recommended that one should be patient on the death of his relatives, especially one’s son or daughter, and whenever remembering the deceased, one should say, "We are from God and to Him we will return." (17) The holy Quran should be recited on the graves and one should ask Allah for his needs on the grave. The grave should he made strong so that its

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signs remain for a longer time. (18) It is not allowed to scratch one’s face because of the grief caused by the death of someone, or slap oneself in the face, or harm oneself in some other way. (19) If a woman, upon the death of someone scratches her face or pulls her hair, it is Ehtiyat (precaution) that she should set a slave free, or feed ten poor people and clothe them. The same is true if she tears up her clothes. (20) It is Mustahab Ehtiyat (necessary precaution) that upon the death of someone, one should not cry loudly.

The Prayer of Wah-Shat

It is Mustahab to say two Rak’ats of prayer on corpse is buried. This prayer is called the prayer be said with the intention of pleasing God. The give the reward for this prayer to the person who

the first night on which the of "Wah-shat’ which should pray-er should ask Him to has recently been buried.

The form of this prayer is as follows:

(a) In the first Rak’at, after Al-Fa-ti-hah, (the first chapter of the holy Quran), Ayatul Kursi, verse No. 256 of the second chapter should be recited. (b) In the second Rak’at after Fa-ti-hah, chapter No. 97 should be recited ten times. (c) After the prayer is finished, Durud should be said, that is: Allahumma salle ’ala Muhammad wa Ale Muhammad. Then one should say, ’Lord, instead of giving mc the reward for this prayer, please send it to the grave of such and such person. The name of the deceased should be mentioned. (d) This prayer can be said any time during the first part of the night of the burial, but it is better to say it at the beginning of the night, after the late evening prayer. (e) If because of some reason, a deceased is not buried before the first night, the prayer should be said on the first night of his death. Excavation

of the Grave

CR # 405. It is not allowed for one lo excavate the grave of a Muslim, whether he be a child or insane but it is not an offense in doing so if the body has already turned to dust.

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CR # 406. The excavation of the graves of pious people, immediate descendants of the Imams and scholars is not allowed, although years may have passed since the time of their death. CR # 407. Excavation of the grave is not an offense in the following cases: (a) If a corpse has been buried in a usurped place and the owner does not agree to leave the corpse in that place. (b) Where the shroud or some other thing buried with the corpse has been usurped and the owner does not agree to leave it in the grave. If something from the deceased own Legacy is buried and the heirs do not agree to leave it in the grave. (d) Excavation is permissible if it would be necessary to see the body of the deceased in order to secure certain rights of some people. (e) If the corpse is buried in a place that causes disrespect to the deceased, such as a dirty place or a non-Muslim cemetery. (f) It is necessary to excavate The grave to take out a baby who is alive in the womb of a dead mother. (g) Excavation is allowed if there is fear of some beast, flood or enemy about the corpse’s grave left in a certain place. (h) Also excavation is allowed if some parts of the corpse are left unburied and one intends to bury them in the same place. In such a case, it is a Wajib Ehtiyat (necessary precaution) that such parts be buried without exposing the rest of the body in the grave.

The

Preferable

Ghusls

It is recommended to have Ghusl on certain occasions. Such Ghusls are called preverbal Ghusls.The list of such Ghusls is as follows: (1) The Ghusl on Friday. The time for this Ghusl starts after the dawn of that day, although it is better to have it near noon-time. If it is not completed before noon, it is better to have it without the intention of considering the Ghusl as a redemption or as the Ghusl originally recommended. If this Ghusl is not completed on Friday, it is Mustahab (recommended) to have its remedy on Saturday from dawn to sunset.lf one knows that on Friday there will be no water to have Ghusl, one should do it on Thursday.!t is recommended that during this Ghusl one should say: (1) I testify that there is no god but Allah Who has no partner and that Muhammad, (may peace and blessings of Allah be upon him and his family), is His servant and Messenger. Lord, make mc of those who repent and purify themselves). (2) The Ghusl for the first, seventeenth, nineteenth, twenty first, twenty third and the twenty fourth nights of the month of Ramazan. (3) The Ghusl on the day of the ’ids, the first of Shawwal and the tenth of Dhil-hajj.The time for this Ghusl starts

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at the dawn of that day until noon. If within this time it is not completed one should have it anytime until the sunset of that day, but only in the hope of its acceptability by Allah. It is better to have this Ghusl before starting the prayer of that day. (4) The Ghusl for the first night of Shawwal. The time for this Ghusl is from sunset of that night till the dawn of the following morning, although it is better to have it at the beginning of that night. (5) The Ghusl of the eighth and ninth days of Dhil-hajj. It is better to have the Ghusl of the ninth of Dhil-hajj near the noon of that day. (6) The Ghusl for a person who during the total eclipse of the sun or the moon has not said the prayer for the eclipse intentionally. (7) The Ghusl for touching a corpse after it has been given all the necessary formal Ghusls. (8) The Ghusl before wearing the clothes for Ehram. (9) The Ghusl for entering haram, the precincts Or the Ka‘ba. (10) The Ghusl for entering Mecca. (11) The Ghusl for visiting the holy Ka’ba. (12) The Ghusl for entering the holy Ka’ba. (13) The Ghusl for slaughtering the animals for sacrifice. (14) The Ghusl for entering Madina. (15) The Ghusl for entering the holy Shrine of the Prophet. (16) The Ghusl for praying and saying farewell to the holy Shrine of the Prophet. (17) The Ghusl for invoking Allah’s curse on the unjust (Mobahilah) in an attempt to settle a dispute by the Divine Will. (18) The Ghusl to a new-born baby. (19) The Ghusl for having Istikharah (re4requesting Divine Assistance in deciding a matter). (20) The Ghusl to pray for a rain-fall. (21) The Ghusl at the time of a total eclipse of the sun. (22) The Ghusl for visiting the Shrine of Imam Hussain. Some other recommended Ghusls mentioned by the scholars are as follows:

(1) The Ghusl for all the even nights of the month of Ramazan, the Ghusl for each of the last ten nights of that month and one further Ghusl tor the later part of the twenty third night of the month of Ramazan. (2) The Ghusl for the twenty fourth day of Dhil-hajj. (3) The Ghusl of the first day of spring (Nawruz), the fifteenth of Sha’ban, the ninth and seventeenth of Rabi’ul-Awwal and the twenty fifth of Dhil-Qa’dah. (4) The Ghusl for a woman who has used perfume for someone other than her husband. (5) The Ghusl for one who has slept while drunk. (6) According to necessary Ihtiyat the Ghusl for a person who has after three days watched someone being hanged, but if one sees such a corpse accidentally or by force, a Ghusl will not even be recommended. (7) The Ghusl for entering the

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Mosque of the Prophet. (8) The Ghusl for visiting the Shrine of any of the infallible Imams from the family of the Prophet.

All the Ghusls that are proved to be preferable are not sufficient as the substitute for Wuzu, that is to say, when such Ghusls are completed there is a need to have Wuzu for some worship acts. If more than one preferable Ghusl becomes incumbent on one, and if that person has only one Ghusl with the intention of considering it to be for all of them, this will be considered sufficient and one does not need to have a Ghusl for each of them; only a general intention will meet the requirement.

TAYAMMUM CR # 408. Steps to perform Tayammum after intention: (a) Place both palms

of the hands firmly on the dusty ground. (b) Then with both palms placed side by side, wipe the forehead starting from the hairline downwards to the upper part of the nose, covering also both sides of the forehead breadth-wise and according to Ihtiyat wiping with palms both eyebrows also. (c) Wipe the back of the right hand with the palm of the left hand starting from the wrist and continuing to the top of the fingers; then do the same on the back of the left hand with the palm of the right hand. CR # 409. One must have Tayammum instead of Wuzu or Ghusl in the following seven instances: (a) When it is not possible to find enough water for Wuzu and Ghusl. (b) When one is not able to obtain water for Wuzu or Ghusl such as in the case of an old person, one who is afraid of thieves or beasts, one who does not have the means of getting water or the water being so hard to obtain that one cannot endure the hardships. In the case of hardships if one takes a Wuzu or Ghusl such a Wuzu or Ghusl would be considered sufficient.

(c) In the case where the use of water is harmful to one’s health such as when it may prolong one’s illness, make one sick or make a treatment for it difficult.lf warm water is not harmful, it is necessary to have Wuzu or Ghusl in this case. (d) When if water is used, the person at that time or later may suffer from thirst which may endanger his life, make him sick or cause a serious injury or thirst will endanger the lives of the people whom one is obliged to save, some people or animals will suffer from thirst, and the person cannot bear to see them suffering or to see that their lives are in

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danger, in such circumstances if one has a small amount of clean and unclean

water, the clean water must he used for drinking, and a Tayammum must be taken instead of Wuzu or Ghusl.

However, the unclean water may be given to a child or to an animal to drink and the clean water could then be used for Wuzu or Ghusl. (e) In the case where one’s body or clothes are unclean and the water is only enough to clean them, in such a case, it is Mustahab Ehtiyat (precaution) that water should be used for cleansing, and Tayammum has to be taken instead of Wuzu or Ghusl. If there is nothing available to be used for Tayammum, the water must be used for Wuzu or Ghusl and the prayer is to be said with the unclean body or clothes.

(f) If no water or pot is available besides those that one is not allowed to use, for instance, the water or pot is usurped and one has no other way of getting water or pot to use.

(g) Where the time left for a prayer is so little that after having Wuzu or Ghusl, the whole prayer cannot be finished in time. CR # 410. It is a sin to intentionally delay to have Wuzu or Ghusl until there is no longer any time left, but in such a case, the prayer which is said with Tayammum will be considered valid. CR # 411. One who doubts whether there is enough time Left to have Wuzu,

Ghusl and say a prayer; such a person has to have to have Tayammum. One who because of shortness of time has to have Tayammum and after prayer can have Wuzu or Ghusl with the water that he had but did not use it until the water was no longer within his reach, in such a case, if the person still has to have Tayammum for the coming prayer, he, apparently, does not have to have another Tayammum for such a prayer even though his previous Tayammunm is still valid. CR # 412 If after having Wuzu or Ghusl The time left is only sufficient for the obligatory parts of the prayer, one is allowed to have Wuzu or Ghusl and omit the non-obligatory parts of the prayer, such as Eqamah, Qunut, etc.; even the sura (recitation of a chapter from the Quran after Al-Fatihah) can also be omitted. The extra time should be spent to have a Wuzu or Ghusl.

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CR # 413. It is Ehtiyat that if one is in a populated area, he should search for water to have Wuzu or Ghusl until all hopes are lost in finding water. CR # 414. If one is in an non-populated area, hilly and full of trees, which makes it difficult to search around for water, one has to search in each of the

four directions a distance of two-hundred steps. CR # 415. If the area is plain the search should he carried on to a distance of four-hundred steps in each of the four directions. CR # 416. If some of the directions are plain and some are not, the distance of four-hundred steps should he searched in the plain direction and two-hundred steps in the directions that are not plain. CR # 417. There is no need to search in the directions which one is sure that there is no water.

CR # 418. One who has enough time for prayer and for finding water, if he is sure that in a direction beyond two or four-hundred steps there is water, he must go there to get water, hut if he only thinks that there is water, it is not necessary to go there. If he has a stronger guess that would make him almost sure about the existence of water there, in such case, according to necessary

Ihtiyat, he has to go in search for water. CR # 419. It is not necessary that everyone should carry on the search for water; it can be undertaken by one person on behalf of one or several people. CR # 420. If there is very little time left for prayer or there is a fear of some thief or to carry on the search for water is so difficult that usually people do not want to endure such hardships in all such cases, it is not necessary to search for water. CR # 421. If one does not search for water until very little time is left for prayer, although one has committed a sin, one’s prayer would be considered valid with Tayammum.

z =

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CR # 422 If one is sure that no water can be found and says one’s prayer with Tayammum but later after prayer comes to know that if he would have searched he would have found some water, his prayer is void according to Thtiyat and it must be said again with Wuzu or Ghusl. CR # 423. If the search for water was carried on and after finding no water the prayer was said with Tayammum hut after the prayer one comes to know that in some of the directions already searched, there is water, if there is still enough time for prayer, the prayer must be said again with Wuzu according to Mustahab Ihtiyat. CR # 424. If one has retained his Wuzu to the time of a prayer and he knows that there will be no water for Wuzu, if that Wuzu is invalidated, in such a case, if it is possible not to invalidate the Wuzu it must not be invalidated.

CR # 425. When it is time for prayer, if the water is only enough for Wuzu or Ghusl, one is not allowed to spill that water. CR # 426. A person who knows that there will he no water for Wuzu and it is already time for prayer, if such a person invalidates his Wuzu or spill the water that he has, such a person has committed a sin, but his prayer will be considered valid with Tayammum, although it is Mustahab (preferable) to say the remedy for that prayer in other times. CR # 427. If it is possible to buy water or it is necessary to pay by some other means to get water, one has to pay for it even though the price is more than usual unless it is harmful for one’s financial situation.

CR # 428. If one can only pay tor the water by taking a loan, he has to do it unless he knows or thinks that he will not be able to pay the loan back.

CR # 429. If it is not too difficult to dig a well to get water for Wuzu, it must be dug out. CR # 430. If there is someone who does give water, without obliging and showing off his favor, still it is not an offense to get such a water for Wuzu or Ghusl. CR # 431. It is not necessary to be sure that the use of water in Wuzu is harmful, only if one thinks that water may harm one and such a guess is

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usually considered reasonable, this will he considered as a sufficient reascn for having Tayammum instead or Wuzu or Ghusl. CR # 432. If one’s eyes are sore and the use of water in Wuzu is harmful to them, this also is a sufficient‘ reason to have Tayammum instead of Wuzu or Ghusl.

CR # 433. One who on the basis of certainty or fear or some sort of harm because of the use of water in Wuzu or Ghusl takes Tayammum and before prayer discovers that the use of water in Wuzu has no harm, his Tayammum will be considered void, but if it is discovered after the prayer, it is Ehtiyat (precaution) that he should say that prayer all over again.

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PRAYER PREFACE WORSHIP A CONSTANT HUMAN NEED Worship has an important status in Islam. The worship rules form a considerable part of the Islamic Laws. A religious Muslim’s conduct in the field of worship is a distinct phenomenon in his daily life. The system of worship in Islam represents the invariable aspect of the Islamic Laws, a constant aspect which always remains unaffected by the changes in circumstances in normal life, except to a very small degree. In the other fields of the Islamic law the case is different. For instance, the laws of contracts may sometimes become different due to their applicability to a certain case because of the changing situation in life. The Laws of worship demand men of the present century to observe them exactly as did the people of the time when these Laws were sanctioned. Today people travel to hajj by airplanes, and today’s means of transportation is different from camels used as conveyance in those days. This is of no effect to the Laws of worships or the worship acts required from the individuals. Today for clothing people use fine products of our time’s technology.

In the earlier days people did not have this opportunity. Despite all the dramatic changes, the form of worship still is the same as it was sanctioned centuries ago. This, evi dently, indicates that the form of worship in Islam is not variable. This attitude, on the other hand, proves that the laws of worship in Islam are sanctioned to meet the constant and an ever present need of human life, regardless of the changes that may take place around them. For only one way of dealing with a certain matter is the evidence of its constant nature. This Islamic attitude pauses this question: Are the Islamic Laws of worship constant? Does anything as a constant need exist in human life, If not, then how would it be possible to justify the invariable forms and Laws of worship in Islam? Apparently, such an unchanging situation in human life does not seem to exist, when the present-day ways of living is compared with those of the early centuries.

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Men are getting farther away from the way of life of the early days when the Islamic Laws were sanctioned in a tribal environment and had to deal with the paganism’s narrow angle of thinking. The time difference is enough reason for the emergence of new human needs, demanding different means and solutions. Considering that the Islamic Laws of worship could discipline people of the past centuries in matters of cleanliness food and other manners, today people themselves have discovered what means are the best to keep one clean and in good health. Thus, why all such rigid Laws of worship should be observed anymore?

In answer to the above question one should make a distinction between men’s relationship with nature and worship. It is true that the changes that have come into being in the later centuries are related to man and nature. The means through which people today deal with nature are quite different from those in the past,but worship is not a relationship between men and nature so that it would also change with the changing situations around us. Worship establishes a relationship between men and their Creator. It also brings into being a spiritual relationship between man and man.

This relationship gives us the opportunity to realize that throughout history human life has always had constant needs, unchanged by the passing of time. Thus, the need for the means to deal with the constant needs of men in both

personal and social matters is always there. Let us first outline such needs, then consider the effectiveness of worship in dealing with them: (a) The need to have a strong relationship with the Absolute. (b) The need within and beyond one’s self. (c) The need to realize one’s responsibility.

(1) RELATION WITH THE ABSOLUTE The system of worship is the means to organize the practical sides of men’s relationship with their Lord. Thus, the practical side of worship can not be evaluated without first knowing the value of this relationship to one’s self and its role in ones life. Hence, this questions:

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What can civilized men gain of their relationship with the Lord? Is such relationship a constant need or a variable one that loses its value after a certain time? The Two Unwanted Sides of this Relationship

When studying the history of human civilization one encounters with the two unwanted sides of men’s relationship with the Absolute. (a) An indifference attitude towards faith; (b) The excessive form of faith. Calling them atheism and polytheism, respectively, Islam has sternly condemned them both, and has always fought against their entire dimensions. The point common between the two unwanted sides of the relationship with the Absolute is their characteristic of obstructing men’s creative and virtuous ability from meaningful progress. With the attitude of having no relationship with the Absolute the situation would be a form of straying in the dark without a strong hold to depend on. Atheism or polytheism are no durable solution for men’s problems; none of the different forms of polytheism is able to make a way out for men from his constant move towards narrower circles

which in turn causes stagnation in his progress of mind and personality. The characteristics of the belief in gods are almost the same no matter what form they take; whether it is perceived in the form of the tribal chief or material achievements, as technological gains and materialistic means. In both cases, the excessive love or faith deviating from the Absolute or the absence of the relationship with the Absolute, are unnecessary burdens on one’s mind, against its freedom and an extra condition to observe and a heavy load to carry along the way which ends no where.

BELIEF IN ALLAH Belief in Allah is a heavenly gift to men. Relation with Allah is the absolute relation, free from difficulties involving the previously mentioned sorts of attitude toward faith. It is a belief in the Absolute Supreme Being that gives

one true freedom and replaces one’s love of gods with the sense of responsibility. One who has faith in Allah finds himself as His representative on earth, a position which requires him to give others and receive from the Absolute. This relation saves one from the danger of straying in the dark because of faithlessness.

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One who has the sense of responsibility and belief in the Absolute has the most noble ambition and the best guide to follow. The difference between the relationship with the Absolute or belief in Him and belief in gods or the absence of belief is that the two latter cases are the outcome of one’s own mind after the struggles that he may have gone through to find his place in the world. For instance, in the search to have a source of protection against the dangers one would seek refuge in the chief of the tribe and in latter stages he would consider him as the god protecting him from the enemies. People who could find some answer to some of their questions to meet their material needs by the help of knowledge and science began to believe that besides the visible realities nothing else exists, thus, material gains appear to be their gods that protect them from dangers. Unlike the above cases, belief in Allah is not the product of the circumstances and the search of mind to find protection. Allah Himself is Absolute

and

free from

all needs.

His attributes

such

as intelligence,

knowledge, power, justice and needlessness are the most exalted examples for men, His true representatives on earth. The way to Him has no end which means that there is no limit for the progress of men. The way towards the Absolute is all progress, knowledge, power and justice. Men are required to work hard and overcome ignorance, weakness, oppression and need.

In this case, labor on the part of men is not required to strengthen the position of the gods but rather it is for the dignity of men and for the establishment of a personality formed out of noble qualities inspired by the attributes of Allah. On the other hand, gods can never help men in their task to meet their needs of life. Besides, belief in the Absolute itself is the denial of the development of false ideas. The holy Quran in its own style tells us about the three forms of belief as this: "The deeds of the man, parched with God with him and worship none but

unbelievers are like a mirage in sandy deserts which the thirst, mistakes for water, until he comes up to it and finds God will pay him his account.” Ch. 24. 39. "If not Him you names which you have named, you and your fathers for

which God has sent down no authority." Ch. 12. 40. "Are many Lords differing among themselves better or the one God Supreme and All-Dominant. Ch. 12. 39. "Such is God your Lord. To Him beiongs all dominion and those whom you invoke besides Him have not the least power". Ch. 35. 13.

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THE DISCIPLINARY ROLE OF WORSHIP All men need progress and belief in the Absolute. Their relationship with the Absolute is the most powerful factor in their task of perfection. The story of men’s belief in God started from the very day man started to live on earth. This experience is scientific enough in its nature to prove that men’s need to believe in the Absolute is a solid reality. A real belief is only the one which is strong enough to make one act and express it as any of his well balanced psychological factors. Men’s psychological factors and their feelings such as to be kind to the others, etc. are progressive only when they are properly balanced. This takes one a long time and hard work to accomplish. The establishment of a strong belief in the Absolute means to realize His greatness. It demands one to strive and work hard. The best means to this goal is worship and devotion. Worship in the form it is sanctioned in Islam has shown many examples of its success in serving the purpose for which it was selected as a means. The great Islamic personalities and the strength of their faith are the best examples that prove the effectiveness of worship to realize the greatness of the Lord.

THE NEED WITHIN AND BEYOND ONE’S SELF Many things are good for men but men always need to work in some way or the other to obtain them. Regardless of the time and means through which men can have things serve their interests, some interests are directly one’s own and some are for the well being of the others. If the need is personal, inevitably the will to decide exists within one’s own-self. Some times the need _ is not personal but the will to decide and work for the fulfillment of such need is still a strong motivating force in him. Such force comes into being only through one’s education, unlike the motivating force in the case of one’s own needs which exists within him. Although no force is directly involved to make one obtain the second kind of human interests, the need in this case too is personal, but in some way indirect and farther from one’s immediate needs.

It is simple to understand the need within and its natural relation with the will to decide. In other words, the will to decide and work for one’s own

interest is the continuity of one’s feeling the need. On the other hand, to work without a direct feeling of the need is not easy to understand, thus, the

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absence of a motivating force is evident. One of the causes that worship serves is to establish a motivating force in men to make them work for their needs which they do not directly feel from their within. The Islamic teachings about the worship provide a favorable ground for a motivating force to take form within men and make them realize their responsibility as the representatives of the Lord on earth, by the means of instructing them to worship with the intention to obey the Lord. The need to obey the Lord, as mentioned before, is one of the needs that men realize exists within them, thus, it serves men in two ways: to fulfill a direct need, the establishment of strong belief in the Absolute and at the same time to learn how to serve a social cause or sacrifice for the cause of the Lord’s creatures. The islamic teachings tell men to work for the cause of the Lord and it is not difficult for a believer to accept such a condition. This condition which is required in all of the worship acts is the most effective educational means to form in men the ability to sacrifice for the well being of their fellow human beings. Whenever the Islamic laws require that certain worship acts must be completed with the intention to work for the cause of the Lord, it will be no offense to say that it is required to be completed with the intention to serve people. In paying alms which is a form of worship in Islam, of the ways it has to be spent, one is to spend it for the cause of the Lord which means to spend for the well being of people. Another duty in Islam is to serve in the Islamic armed forces which means to defend people and restore their rights usurped by the oppressors. Worship acts are sanctioned to test men’s ability of giving sacrifice, some times by the acts that required physical work and mental awareness as in the case of prayers, and sometimes through psychological effort as in fasting. In other cases the test is designed to try their ability of financial sacrifice as in alms giving. Above all there is the test to try their ability of sacrificing their lives as in the case of serving in the Islamic armed forces to defend the oppressed fellow human beings against their enemies.

It is not difficult at all to compare the man educated by the means of worship, one of the educational means in Islam, and the person who always follows his desires to satisfy his needs that he feels from his within and has no desire to give any sacrifice for a cause that has no relation with the physical functions of his mind and body. A man of worship has no difficulty to work without receiving anything in exchange, but the fellow who never thinks of anything in

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his life without receiving something in exchange will never feel the need to work for the others, which in turn is a work done to serve his own indirect needs.

The person who never has done anything without receiving something in exchange will always deal with the social works in terms of the market value and the fix price figures, regardless, it is a public office or an educational institute. In Islam the value of work is not as important as the sincerity with which a certain social or personal act of worship is completed. No matter how many lives are saved through someone’s hard labors, what is more valuable is the intention and the degree of one’s sincerity in obedience to Allah. The greatest work done to serve others based on the terms of market price, would be a form of trading deal and of no value to God.

THE SENSE OF RESPONSIBILITY History shows that in society there always existed some social order, a certain manner of giving each one’s rights, undertaking responsibilities and a certain way of enforcing the regulations to protect the rights of the individuals. To this extent, the existence of order in human society is the characteristic of a certain form of social order at a given time. This had been existing in the past and will exist in future. There we have Laws to deal with crimes, the Laws

serving to have proper discipline and those dealing with the other social matters. A social order which is only enforceable by the external powers, had also had significant role to serve the purpose, however, this alone did not seem to be enough. The ideal case is the one when both the internal and the external forces join hands to enforce the order designed for the well being of the society.

As mentioned before the sense of responsibility, as a force to help people to observe the laws of the society and other people’s rights, can only exist in the ideal form when the whole process of establishing such force is safe from the effects of the material means and the process of trade-wise dealing. This comes only as a result of ones relationship with the Absolute, the limitless Supreme being. In other words, it is only the proper worship that provides men with the God-given gift, the sense of responsibility, absolutely different from one’s dealing with things in terms of their business-wise values. Worship

is the unseen obligation which means that it is not possible to fulfill it as it is required by the outside force. Thus, it is impossible to get the desired result

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from the worship by the help of police and security forces. The relation of worship with men is a relation between his attitude of mind and the purpose for which the duty is to be fulfilled. It is the relationship between the spirit of men and their Lord, the unlimited Absolute Supreme Being. It is a relationship that can never be controlled by the forces from outside. The only controlling force in this case is one’s relationship with the Absolute, the Unseen from Whose knowledge nothing is absent, and the existence of the sense of responsibility from within. The duty of worship is absolutely different from all the social duties when they are dealt with as considering them of no relationship with one’s attitude towards

the Lord. In brief, there is no way to consider someone as a useful member of the society unless he realizes his responsibility towards Allah and that he is required to deal with other members of the society for the cause of God. In a case where there is nothing from within to make one deal with the others in a just manner, and with sincerity he may do a great deal of wrong to the others to secure his personal interests and at the same time, for a while, keep the

others happy, although they may have seriously been harmed by the same person in some way. For no one knows what other’s intentions, in reality, are. There are some form of worship which are recommended to be performed in a place where no one can see the worshippers. The optional prayers would be more virtuous when they are prayed in private. This requirement in worship and the rest of its characteristics, altogether, show the role that worship plays in one’s life in his task of establishing his relationship with the Absolute and the opportunity of having the sense of responsibility towards one’s social obligation and his contributions to maintain order in the society.

GENERAL ELEMENTS IN WORSHIP THE UNSEEN ELEMENT IN ITS DETAILS We have already mentioned the significant role of worship, in general, in human life, and that worship is a constant human need throughout their journey in all phrases of civilizations. Although modern men’s progress in knowledge has been quite helpful to discover the benefits of the different forms of worship that Islam has sanctioned for men, however, a study of its details will show that despite such achievements in the field of knowledge,

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still we are not able to discover the reasons and secrets behind some of the detailed formalities of worship required by the rules of the Islamic Shari'a. Still we do not have an explanation to certain details of the Islamic way of worship that may satisfy a materialistic mind. Why the number of the Rak’ats in daily prayers is not the same? What is the reason behind the number of Rukw’ and Sajdah in each Rak’at? We call this the unseen element in worship, and we find it, in some way or the other,in different parts of worship sanctioned by the Islamic Shari’a. We believe that the unseen element is one of the general characteristics of worship in Islam. Thus, it is an integral part of worship. As we noted before, the task of worship is to strengthen men’s faith and relationship with the Absolute.

The degree of the strength of one’s faith in God and his relationship with Him is directly proportionate to the degree of the sincerity of one’s submission to His will and the purity of his obedience to His commands. Because of his complete knowledge of the benefits and reasons behind all the particularities of worship, the desires of mans souls may divert his mind from the unseen elements of worship towards the benefits and rewards. Thus, the unseen element’s effect of strengthening the worshipper’s faith and relationship with the Absolute will naturally be reduced. In the case of the disciplinary measures for the armed forces of a country it is well understood that the policy of ’this is an order’ produces much favorable results, and such results can never be achieved by explaining to each of the soldiers the gains which a ranking officer thinks will be obtained in a certain expedition. The Islamic Shari’a has not ignored human psychology and it is

well aware of the favorable results of the unseen elements in worship in strengthening men’s relationship with the Absolute and in having a greater degree of submission to His will. Once it is proved, on the bases of sound logical grounds, that worship is a constant human need and its benefits are irreplaceable, one’s efforts of measuring the unseen element in worship in terms of benefits and gains will be of no educational value. However, the unseen element has almost no traces in the forms of the worships of greater social values as opposed to those of purely personal obligations. The tax payers to the Islamic Government and the soldiers who sacrifice their lives to defend the Islamic sovereignty all know very well the result of their efforts to fulfill their obligations.

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The absence of the unseen element in such cases will have no effect on the degree of one’s submission to the Will of the Absolute and the purity of this obedience to Him; the existence of a motivating force that will make one to unhesitating sacrifice his life in defending the Islamic sovereignty or reduce a considerable amount of one’s property by paying tax to participate in economical needs of the Islamic government is the manifestation of the degree of one’s submission to the Will of the Absolute and the purity of one’s obedience to Him. Despite the absence of the unseen element in most of the worship of social nature, it does not mean that it has no role in the social side of the worshippers life; it is this element that for its share strengthens one’s faith and determination to purely obey the Absolute and be always submitted to His will, whether such obedience would require one to pray his morning prayer or sacrifice his life in defending the Islamic sovereignty.

THE UNIVERSALITY OF ITS VIRTUE One ever-present element of worship in Islam is its universality that covers all the walks of human life. All forms of worship are not sanctioned to serve a single end alone. Sajdah and Rukw’ in prayer may help one to realize the greatness of God. Jihad serves one social end. Zakat and Khums are two other worship acts of socio-economic benefits. To the rest of the end in life other worship forms each in turn has its role. Fasting, besides its other virtues, is part of a dietary programme, and Wuzu or Ghusl, two other forms of worship, have significant parts in peoples cleanliness needs. This ever-present element in worship is the manifestation of the Islamic attitude towards its educational plans for man. A plan whereby may come into being the establishment of a relationship between man and God and wherein mans every single act is used as a meaningful means.

In order to provide a sound educational ground for men in Islam the constant forms of worship are proportionately divided among the different fields of human activities. Through this plan every deed will have the spirit of worship all the time and the spirit of Mosque everywhere; at home or at work, factory or the offices as long as their activities are intended to serve the cause of God. The Islamic way is different from the two other attitudes towards worship of which one completely isolates life from worship and the other entangles life within some narrow forms of worship. The first one suggests that worship must have a distinct place so that none of life’s problems will disturb the worshipper. When his worship is completed, he should freely

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depart it until the next opportunity. A separation between the activities of life and worship paralyzes worship and frustrates its role in human education and moral discipline. It causes a deviation from the goal of having the ability of self-abnegation whenever required. God does not intend to impose His greatness on people through worship, so that the above mentioned isolated forms of worship from life can be considered enough to satisfy Him. He does not consider Himself the only goal of human life, so that man would have to bow his head before Him and think that his duty is well done. What He, in fact, wants man to get through worship is to have the ability of getting beyond their selves and to have a greater role in the system of creation and the destiny of man. Such a goal would only be achieved when the spirit of worship could be found in all human activities. The spirit of worship as such would extend itself from people’s activities to the inner-most corner of their conscience, feelings and reason. Once a person achieves the ability of self-control this will be a big step towards the establishment of proper relation between himself and the eternity that encompasses him from both ends, the beginning and the end. The Mosque is the house of God not because it is different from the house of man in its form or materials. It is considered as the house of God because people practice therein the methods of getting the ability to move beyond their selves and the limited field of material gains. Any place wherein people would be having the attitudes or deeds which go beyond their selves in obedience to God, and people are not ignored therein, that place indeed has the spirit of Mosque and worship. The latter attitude towards worship which narrows down life within certain limited forms of worship has tried to keep man in the mosque instead of allowing the mosque to extend its spirit within the activities of man in all the walks of life.

This attitude is probably based on the idea that a contradiction always exists between mans spirit and his body, that no perfection would take place in either side without a substantial reduction to the same degree in the other side; thus,in order to have spiritual perfection one must deprive his body from the worldly blessings and keep pressing down all the desires and ambitions that one’s physical activities may demand. Prolonged deprivation of one’s feelings in the material field of life would at last bring them under full control. The Islamic law disapproves this attitude.

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Islam wants worship for life; thus, nothing out of life could be given for worship. It wants to bring up virtuous people with the spirit of worship present in all their activities, but not in the sense to make them stay away from all the activities and to confine themselves within the walls of the worship places. Islam wants to turn the activities into worships and the mosque into the starting point towards this goal. The holy Prophet once said to Abuzar, "If you would not be able to eat and drink but for Allah, do it for

Him." In Islam worship is for life and its spirit to the extent of one’s success in the matter extends itself into the different fields of one’s activities.

THE VISIBLE ELEMENTS The perceptual ability in men is not just feelings nor it is abstract intellectual thinking. It is a combination of both reason and feelings and or abstraction and determination. If worship is supposed to have effective role in life and coincide with mans essence wherein both reason and feelings exist, worship must also have visible and abstract aspects to bring harmony in the nature of the worshipper, who is part of nature, and provide him with all the required relations with the Absolute. To turn worships as such does not seem to be any difficult to the Islamic wisdom.The Islamic worship rules consider intention or one’s attitude of mind (a psychological phenomenon) one of the validity conditions to represent the intellectual and abstract aspects in worship.

Since the intention to worship is purely supposed to be in obedience to God, it helps one to realize the greatness of God and find himself in His presence while there are other factors involved in worship that pertain to its visible side. For instance, facing the direction of Ka’ba in prayers, or the holy places in Mecca where the pilgrims have to fulfill their hajj obligation,as seven times walking around the holy House, walking the same number of times between Safa and Marwah and throwing pebbles on the stone pillars and that mosques, in general, are assigned to be the place of completing the worship of E’tikaf, all belong to the visible aspect of worship. The rules that, ’A prayer is not a prayer during which one has not faced the direction of Qiblah. A Tawaf which has not been completed around the holy House will not be considered a Tawaf’, all are sanctioned to support the visible aspect of worship. Despite its oft-stated guide lines as "An hour of thinking about the creation is more virtuous than a whole year’s worship" which recommends

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man to pay due attention towards improving his reasoning ability, Islam does not approve the way of worship which considers man as an intellectual being and thinks that the only way of worshipping God is to abolish first all that lead man to the material side of life in order to have a better relation with the Absolute. No matter how profound a worshipper’s thoughts are or what kind of concentrated meditations he may exercise it can place nothing in the emptiness of human soul and get man no closer to the Absolute; man is not made out of reason alone. A prayer, in Islamic, has to be started with, "Allahu Akber - God is great" which is an exalted way to mention Him. The one who prays at the same time considers the holy mosque in Mecca as a Divine reminder to which he turns his face, his thoughts, feelings, logic, emotions, abstraction and conscience join him to worship God. Some people’s attitude go too far in the direction of material life. It starts to believe in the reminders as meanings and in symbols as the reality itself; worship as the replacement for the reality behind it and the direction to a certain goal as the goal itself. This, in one way or the other, leads one towards having faith in duelist instead of the Absolute. This attitude towards worship brings an inevitable end to the spirit of worship which had to serve as a means to improve the relation between man and God. Worship which has to be in obedience to God becomes the means to serve false deities because of the false abstraction in matters related to the Absolute. Islam has strongly opposed and condemned the belief in the duelist instead of the Absolute. The difference between a false reminders and facing the direction of Qiblah in prayer is distinctly clear. Qiblah is only a worship place for man and God is his real Benefactor, while the false reminder in themselves are thought of as having special relation with the Absolute. Its Social Role

Worship in Islam is the manifestation of men’s relation with the Absolute, a means of introducing man to eternity and strengthening his stand in life. In Islam, worships also serve as the means to establish good relations between

man and man, to reflect its social aspects. In worship there are factors which brings men together but each with the intention to complete his own worship. At the same time the individuals are demanded to harmonize themselves to have a better form of worship. Jihad is a worship act and in order to have this worship as required, the participants have to organize themselves as steadfast armed units. The other forms of worship although may not involve the

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individuals directly in a certain social task, yet there is no worship wherein the social end is ignored. The prayer in congregation is a worship of a visible social aspect. hajj, the pilgrimage to Mecca, and all the details therein are required to be fulfilled in the prescribed manners. Every act of hajj has a significant role in social matters. Even fasting, which basically is a worship act of individualistic, nature ends with a festivity wherein the social element is also clearly visible. The ’id prayer and paying Zakat to the needy are worships but they serve certain social needs. In every form of worship in Islam, social elements are always present either being included in the very form of the worship acts or that different worship acts serve a social end in one way or the other. The peak of the social side of the worship in Islam is when it demands every one to face the same direction in prayer. The worship of facing the holy Mosque in Mecca is not only a matter of worshipping dimension, it serves the cause of a whole nation’s unity. It is because of the social dimension of this worship that the holy Quran tells us about the grave concern of the other people when this worship act was sanctioned. People who realized the significant social role of this worship in unifying the Muslim nation could not control their disappointment and tongues. The holy Quran has considered their concern as worthless and the Muslim nation as a well balanced people. 143-144 ch. 2.

THE PRAYERS (SALAT) Prayer is the most beloved deed to Allah. The fact that the last words of the holy Prophet addressed to his followers are strong recommendations about prayer is also a sign of the significance of prayers. Prayer is one of the pillars upon which Islam is established. If one’s prayers are entitled to acceptance before Allah only then will the other deeds be accepted. If prayer is rejected so will be the other deeds. Prayers will be examined on the Day of Judgement before the other human deeds. If prayers are accepted only then will other deeds be examined, but if prayer will not be considered valid the other deeds will not be even looked upon. Prayer in moral discipline is like a flowing river which cleanses unclean objects. One who washes himself five times a day in a river will be clean all the day. Each prayer also keeps one clean from immorality at least until the time of the next prayer. Prayer is a distinguishing factor between a Muslim and a non-Muslim.

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On the Day of Judgement when a person is called upon, the first thing that he will be asked about will be prayer to see if it was managed properly. If it was not, he may face trouble. Through authentic ways it is narrated from Imam Ja’far Assadiq who said, "I do not know anything more virtuous than prayers, except wisdom." It was the virtuous servant of God, Jesus who said, "God has recommended

me to pray and give alms as long as I live." Also it is narrated from the sixth Imam who said, "One obligatory prayer in virtue will be considered equal to a thousand hajj and ’umrah already approved and accepted." A great number of hadith is narrated about the significance of prayer, strongly recommending that the prayers should be said each at the beginning of its proper time. The one who does not pay much attention to it will be considered as the one who ignores it. The holy Prophet said, "One who does not pay any attention to prayer is not of my followers. Such a person will not receive my intercession on the Day of Judgement.

Never miss your prayers, for one who misses his prayer will be raised with Qarun and Haman on the Day of Judgement - two bad people in the time of Abraham - and will face Hell along with the hypocrites." Once the Prophet and some other people were in the Mosque, and a person was praying. He did not properly complete the different parts of the prayer as Ruku’ and Sajdah. The Prophet said, "He acted just as the crow picking up its food from the ground. If he dies with this kind of attitude to the prayer, he should die with a belief in some religion other than my religion. "Abu Basir has said, "I visited Um Hamidah to express my sympathy on the death of the sixth Imam. When I saw her weep I too started to weep and then she said, "If you were there when the Imam was dying you would be surprised. He opened his eyes and asked us to call all his relatives. When every one was

there he looked at all of us and said, "Those who do not pay much attention to the prayer will not be entitled to receive our intercession on the Day of Judgement",

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DAILY PRAYERS SECTION NO. 1 DAILY PRAYERS THE FORM OF PRAYER A prayer consists of some standing, bowing, prostrating and sitting position and certain recitations in each position. (1) Prayer must start from a standing position. The recitation starts after a definite will and intention to say a certain prayer as a worship act with the phrase. ALLAHU AKBAR followed by the recitation of the first chapter from the holy Quran and any other complete chapter from the Quran. (Mostly from the shorter ones so that a prayer could be completed in time). (2) The bowing position ’Rukw’ with palms resting on the knees, while the knees and neck are kept straight. Recitation in this position will either be: SUBHA NALLAH HAM DEH once.

three times or SUBHANA

RABBI AL-’AZIME WA BE

(3) After this position called ’Rukw’ and a brief standing, comes the two prostrations with a short sitting in between. In this position seven parts of the body must be kept touching the ground: the big toes, knees, palms and forehead. The recitation in the prostrating position can be either, SUBHA NALLAH three times or SUBHANA RABBI AL-A’LA WA BE HAMDEH

once. (4) After the second prostration one has to sit resting the back of one’s foot against the sole of the other foot folding the thighs on the legs and the knees touching the ground.The recitation in this position consists of the phrases: ASHHADU AN LA ELA HA EL-LALLAHU WAHDA HU LA SHARIKA LAHU WA ASHHADU ANNA MUHAMMADAN ’ABDUHU WA RASU-LUH ALLAHUMMA SALLE ’ALA MUHAMMAD WA ALE MUHAMMADAN.

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(5) The ending: To end the prayer either one of the following phrases is enough to come out of the state of praying: ASSALAMU ’ALAYNA WA ’ALA ’EBADELLAH ASSA LEHIN ASSALAMU ’ALAYKUM WA RAHMATULLAHE WA BARAKATUH.

or

These positions and recitations form a prayer that consists of only one Rak’at. If the prayer consists of two Rak’ats, after the second prostration and a short sitting up-right one has to re-assume the standing position starting the recitation from the first chapter of the Quran in the same way as in the first Rak’at up to the end of the recitations in the sitting position and the ending phrases. If the prayer consists of three Rak’ats, before saying the ending phrases one has to re-assume standing position again starting the recitation therein with only the first chapter from Quran or SUBHANALLAHE WAL HAMDU LELLAHE WA LA ELAHA ELLALLAHU WALLAHU AKBAR once or preferably, three times continuing up to the end of the second prostration from which position one may assume the fourth position which is sitting and saying the recitations therein completing the prayer with the ending phrases or assume again the standing position for the fourth time if the prayer consists of four Rak’ats. The recitation in the fourth standing position would be the same as in the third standing position. When Rukuw’ and Sajdahs with the recitations therein are completed one simply continues with the fourth position and recites the ending phrases. From the details mentioned above, the following terms are considered the elemental acts in a prayer: (1) NIYAT, the definite will to pray, followed by, (2) TAKBIRATUL EHRAM, that is to say, ALLAHU AKBAR both at the very beginning of a prayer, (3) A standing position (QIYAM) from which the bowing position (RUKU’) can be assumed and the Takbir can be said, (4) The bowing position (RUKU’) and (5) The prostrations (SAJDAH)

CR # 1. If any of the above elements are altered, added to or missed willingly or by mistake the prayer will be void which means that one has to start the prayer again.

DAILY PRAYERS CR # 2 Besides the above elements all the other positions and recitations even though are called necessary acts in a prayer, they differ &om those called the elements in a prayer for the following rule:

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CR # 3. Any of the recitations missed because of forgetfulness can be said again ,provided, one has not yet entered the next elemental position.

THE NON-ELEMENTAL COMPONENTS

OF

A PRAYER: (1) Standing position during the recitation of the first chapter of the Quran and the chapter to be recited in addition. (2) Recitation of the chapters already mentioned. (3) The recitation in the Ruku’ position. (4) Standing position after Ruku’. (5) The recitations in the prostrating positions (called Dhikr of Sajdah). (6) The sitting position in between the two Sajdahs. | (7) Position No. 4 and the recitation therein called TASHAHHUD testimony). (8) The ending phrase (called Salam).

(the

THE KINDS OF PRAYERS: (a) The Obligatory Prayers. (b) The Optional Prayers. THE

FOLLOWING

ARE

THE

KINDS

OF OBLIGATORY

PRAYERS

(1) The daily prayers; two Rak’ats in the morning (called subh prayers). Four Rak’ats in the early afternoon: (called zuhr prayer). Four Rak’ats in the late afternoon (called ’Asr prayer). Three Rak’ats after sun set (called Maghrib). Four Rak’ats before midnight (called ’isha prayer) (2) The Friday prayer can be considered as an alternative to the early after noon prayer on that day, provided, all the conditions required for the same are existing. (3) The prayer because of an unusual natural happening such as earth quake etc. (4) The prayer after a necessary Tawaf (seven times walking around the holy House in Mecca). (5) The prayer for the dead people. (6) The prayer due to a vow, a covenant with Allah. The prayer which one has committed oneself to say on behalf of a dead person and the prayers which have become the duty of the oldest son on behalf of his deceased father who missed them in his life time.

CR # 4. The daily prayers consisting of four Rak’ats are on a journey to be commuted only to the first two Rak’ats.

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THE DAILY OPTIONAL PRAYER. For every day there are thirty four Rak’ats of optional prayers except Friday which has an additional four Rak’ats. (1) Eight Rak’ats before the early afternoon prayer. (2) Eight Rak’ats before the late afternoon prayer. (3) Four Rak’ats after sun set. (4) Two Rak’ats in a sitting position after the ’isha prayer. (5) Two Rak’ats before the morning prayer. (6) Eleven Rak’ats at night after midnight; eight of which would be concluded with the ending phrases after each two Rak’ats. After this two more Rak’ats called shuf should be completed. Then another one Rak’at called Witr should be added to the rest. In the Witr prayer before Rukuw’ and after the recitations this phrase should be said three hundred times; Al’afw (O Lord! forgiveness!) Seventy times this; ASTAGHFERULLAHA RABBI WA ATUBU ELAYH (I ask forgiveness from my Lord and to Him I turn in repentance). One should Pray for forty people dead or living and

mention their names. If one considers the two optional Rak’ats in a sitting position after the prayer before midnight as one Rak’at, the total of the Rak’ats optional and obligatory in twenty four hours except Friday would be fifty one Rak’ats of which seventeen are obligatory and the rest optional.

CR # 5. In each prayer after the recitations in the second Rak’at and before the Rukw’ both hands should be raised in front of one’s face and some prayer should be said, preferably, any phrase or verse from the Quran containing prayers. The prayers in this position is called Qunut. Qunut is recommended to be said even in a prayer which consists of only one Rak’at. Besides the daily optional prayers there are many other optional prayers; of which one is ‘Ghufaylah’. The time for this prayer is before ’isha prayer. Its form is like the Subh prayer except that after Fatihah, the first chapter of the Quran, instead of reciting a chapter from Quran the following verses should be recited successively in the first and the second Rak’ats; verse No. 87 Ch. 21. and 59. of Ch. 6. CR # 6. The Salatul wusta, middle prayer which the Quran strongly recommends is the zuhr prayer. Thus, if some one undertakes a vow to say the middle prayer at the beginning of its time or in a certain mosque, zuhr prayer would be enough for the remittance of the vow.

CR # 7. It is allowed to pray all the optional prayers those of every day or the others in a sitting position. In this case, it is better to consider every two

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Rak’ats as one, thus, the eight optional Rak’ats before the zuhr prayer will be sixteen Rak’ats in a sitting position.

SECTION NO. 2. THE TIMING

OF THE

DAILY PRAYERS

(Obligatory and Optional) (a) The time for the zuhr and ’asr prayers begins at noon and ends at sunset. The period starting from noon until the time which would take one to complete the zuhr prayer is the special time for the zuhr. In the same way, a period before sunset which would take one to complete the ’asr prayer is the special time for ’asr. CR # 8. Thus, if ’asr is prayed in the above mentioned period, soon after the noon time, or zuhr is prayed in the above mentioned time before sunset, none of them would be valid. (b) From Maghrib, which begins about fifteen minutes after sunset, to midnight is the time for the Maghrib and ’isha prayers, and the periods from the beginning and end of this time have the same characteristics as those mentioned about the time for the zuhr and ’asr prayers. The timing for the Maghrib and ’isha prayers as mentioned is for the normal cases, however, in an emergency the time for the Maghrib and ’isha prayers ends at Dawn. (c) The period between the Dawn and sunrise is the time for the morning prayer. (d) The period from noon to the time when the shadow of an object, erected straight on a plain ground, becomes equal to the length of that object is the time for Friday prayer. CR # 9. If the Friday prayer is not prayed within the time mentioned, one’s only choice is to pray the zuhr prayer.

THE VIRTUOUS TIMES (for Each of the Five Daily Prayers) (a) From noon to the time when the shadow of an object, like the one mentioned in the description of the time for the Friday prayer, becomes equal to its length, is the virtuous time for the zuhr. (b) The virtuous time for

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the ’asr prayer starts from the time when the virtuous time for the zuhr prayer ends, and it continues to the time when the shadow of an object, such as the one mentioned above, becomes twice the length of the same. (c) The virtuous time for the Maghrib prayer begins about fifteen minutes after sunset and continues to the time when the red spots in the western horizon turns to darkness. (d) The virtuous time for ’isha starts from the time when the virtuous time for the Maghrib prayer ends and it continues to the end of the one third of the night. (e) The virtuous time for the morning prayer begins from dawn and ends with the appearance of the red spots in the eastern horizon. CR # 10. One way to find out the noon time is to erect a straight object on a plain ground. At the places close to the equator the shadow of the object almost disappears at noon. The noon time is when the shadow of such object disappears or reaches the minimum in its length. Another way to show, approximately, the noon time is to find the sun declined to one’s right

eye-brow when one is standing facing southward. CR # 11.A redness appears in the eastern horizon after sunset and it comes westward followed by the darkness. When it disappears in the sky over one’s head, then it indicates the beginning time for the Maghrib prayer.

CR # 12. Midnight is when the stars rising from the eastern horizon reach midway between the eastern and the western horizons. This is true if the stars rise from the same point in the eastern horizon from which CR # 13. Dawn is the time when a brightness appears in the eastern horizon at the end of the night, getting brighter as the time goes on. CR # 14. The special timing for the zuhr, ’asr, Maghrib and ’isha prayers are called such because if one of the others of the daily prayers are prayed during

that time it will be considered void. However, It is not an offense to pray those prayers which one may have missed some time ago, during those times. CR # 15. One who starts to pray the zuhr prayer thinking that the time for it has already come, though in fact, the time happens to have started only when he has reached the middle of the zuhr prayer, it is not an offense to start the ’asr prayer right after he completes zuhr. Even though only half of the special time for the zuhr prayer has passed.

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CR # 16. In case, one who by mistake prays ’asr before zuhr at a time when the remaining period to sunset would only be enough to pray four Rak’ats, if he prays the zuhr prayer in that period it would be considered valid and the zuhr prayer in this way would be considered as the zuhr prayed in time, not a make up or remedy of the same. However, it would be a precautionary measure to pray it with an intention to fulfill one’s duty of that time, regardless of it being the zuhr in time or a make up and the remedy for the same.

CR # 17. The ’asr and ’isha prayers must be prayed respectively after the zuhr and Maghrib prayers. CR # 18.If intentionally, ’isha is prayed before Maghrib or ’asr before the zuhr prayer, they will be considered void, regardless, they are prayed in the special time for the other or in the time common for both. If this is done by mistake, for instance, ’asr is prayed and completed, it will be considered valid, or one may change one’s intention to the one which he was supposed to pray, if there is enough time left for the prayer.

CR # 19. If one has already completed all the three Rak’ats of ’isha and is busy with the fourth Rak’at, in this case, his ’isha prayer will be considered void while if one comes to know of his disorderly way of praying at the proper time, he must change his intention to the one which he was supposed to pray first. CR # 20. If the duration of the time left to sunset is only sufficient to pray five Rak’ats, in such a case, one must pray first zuhr and then ’asr, however, if

the time left is only sufficient to pray four Rak’ats then ’asr is to be prayed first. On a journey the above case would be true of two and three. CR # 21. It is not allowed for one to change one’s mind (niyyat) from the prayer that is supposed to be prayed first to the one which follows it. It is not an offense to change one’s mind from the one that comes later to the one that comes first. In case, one who starts to pray considering it to be zuhr but comes to know in between that he has already prayed it, he is not allowed to turn it into an ’asr prayer by changing his intention. He must discontinue it and start ’asr from the beginning. If the prayer in progress is the ’asr prayer, one simply changes one’s mind to a zuhr without discontinuing the same and starting a new zuhr.

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CR # 22. On a journey if the time left is only sufficient to pray four Rak’ats and one starts zuhr according to the rule of the journey, but during the prayer one decides to stay there for at least ten days, according to rule 21, one is not allowed to change one’s mind to ’asr. One must discontinue it and start ’asr from the beginning. If in the above case the situation is to the contrary, that is, one had the intention to stay for at least ten days and suddenly during prayer changed his mind to leave the place before ten days, one must change one’s mind to complete zuhr in two Rak’ats, as one’s duty on a journey. CR # 23. It is Mustahab (preferable) to separate the prayers of common time, like zuhr and ’asr, Maghrib and ’isha with an interval in between.

CR # 24. It is Mustahab (preferable) to pray each of the daily prayers in their virtuous times unless there is some other factor more important than the virtue of the time such as waiting for a congregation which is about to start.

For the morning prayer it is Mustahab to pray it within the relatively dark period after dawn. CR # 25. Any prayer of which one Rak’at is completed within the last moments of its time will be considered as a prayer completed in time, not as the one which is called Qaza (the remedy or a make up of the same). It is not allowed for one to delay to such extent. The following are factors which are considered to be more important than the virtue of the virtuous times for the daily prayers: (1) The time spent for the optional prayers before the zuhr and ’asr prayers which may take the whole or some of the virtuous times of the zuhr and ’asr prayers. (2) The time spent to complete the remedy of the prayers that one has missed. (3) The waiting period, if there is a possibility of finding water for Wuzu which may take the virtuous time of a prayer. (4) The time that one spends because of the urge to use a W.C. (5) The time that takes one to complete Tahajjud, optional prayer of the night, if its four Rak’ats are completed before dawn. (6) The haste of a traveller which may occupy him during the virtuous time of a prayer. (7) A nurse who does not have enough clothes and the one which she has is unclean because of the baby’s wastes, she may delay her zuhr and ’asr prayers to a time within which it would be possible for her to wash her clothes and pray zuhr, ’asr, Maghrib and ’isha one after another. (8) A woman who is experiencing irregular blood discharge of the maximum stage is allowed to delay zuhr and Maghrib to the later portions of their times so that she may pray zuhr and ’asr with one

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formal bath and the Maghrib and ’isha with another formal bath which she is required to take because of her blood discharge. (9) One may delay ’asr and ’isha prayers so that he can pray them when their virtuous times starts. (10) Maghrib and ’isha can be delayed to one fourth or one third of the night in the case of those who leave ’arafat for Mash’ar (names of two places in Mecca) at sunset on ninth of Dhil-hajj. (11) One who is trying to avoid the heat of the weather at the beginning of the time for zuhr he may delay it to the end of its virtuous time. (12) One who has a strong desire to eat at Maghrib because of fasting the whole day or some one is waiting for him can also delay the Maghrib prayer for this reason. CR # 26. It is Mustahab (preferable) not to delay the remedy of the prayers — missed and pray them before the prayer for which the time has come. In the same way, it is recommended to hasten for the remedy of the optional prayers of each day if they are missed. In this case, it would be better to pray the optional prayers of the night at night and those of the day during the day. CR # 27. In the following cases it is necessary to delay the prayer: Those who are missing some of the conditions necessary for a prayer and think that the conditions could be fulfilled at a later time; like water for Wuzu, proper clothing, learning the components of the prayer and the rules about it. CR # 28. It is also necessary to delay if another obligation is to be fulfilled, like the cleansing of the Mosque which has become unclean, paying one’s debts for which one has the ability and saving a respectable life. If one ignores to fulfill such obligation and first prays, his prayer will be considered valid. However, he has committed a sin and it would be a precautionary measure to pray that prayer again. The Optional Prayers are of the Following Categories: (a) The regular ones that should be prayed before or after the daily prayers within every twenty four hours. (b) Those which have a particular cause behind them like those recommended to be prayed on certain occasions. (c) Those for which no particular reason is mentioned but one wants to pray just because that prayer in general is a good deed.

CR # 29. It is Makruh (abominable) to pray those prayers mentioned in the category (c) in the following times: (a) After the morning prayer and before sunrise. (b) After ’asr and before sunset. (c) At sunrise before the light spreads all over the area. (d) At noon before the sun declines. (e¢) When the sun is disappearing in the western horizon. However, it is not an offense if

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one starts them before the above mentioned times and is praying during these periods.

PRECEPTS OF THE PRAYER’S TIMING CR # 30. It is not permitted for one to say a prayer before its proper time. If done so the prayer will be void even if a part of it may have taken place before the proper time. It is necessary to be sure that the time for a prayer has come before one starts one. An uncertain idea of the coming of the time is not sufficient unless one is of those who because of some reason are considered exceptional. CR # 31. If two just people testify that the time for a prayer has come, it is not an offense to depend on their testimony. The Adhan, call to prayer, of a just and knowledgeable person is another way to know the coming of the time for a prayer. CR # 32. If one prays without having any of the above evidence, one’s prayer will be void, unless later he discovers that his whole prayer had taken place during the proper time and his intention had been to pray in obedience to Allah

CR # 33. If one who is not aware of the necessity of being certain of the coming of the time of a prayer, may have already started his prayer, it will only be valid if he discovers later that the whole prayer was completed within the proper time. If he, later, comes to know that the whole prayer was completed before the time or does not know when the prayer was said, his prayer will be considered void. CR # 34. If based on one’s certainty or the evidence that is approved by the law like the testimony of two just people, one starts a prayer and later discovers that the whole prayer was completed before the time, one’s prayer will not be valid. If part of the prayer may have taken place in time, even a small portion of it such as the ending phrases, his prayer will still be valid. CR # 35. If one starts the ‘isha prayer before Maghrib prayer mistakenly and finds out in the middle about his mistake if he prayed the whole or some of the prayer in the time common for both Maghrib and ‘isha prayers and he has not reached the fourth Ruku‘ of the fourth Rak‘at it is necessary for him to change his intention into that of prayer of Maghrib and all that he

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CR # 36. In a case where little time is left for a prayer, it is necessary to complete only the necessary components of a prayer, if including the preferable items may cause the necessary ones to take place after the proper time.

SECTION NO. 3 ABOUT QIBLAH (The direction of Mecca) Qiblah, means the direction to face during a prayer, the place on which the holy House is built in Mecca. This space is called Qiblah from the earth to the sky. It is necessary even for those who live far from Mecca to face the space on which the holy House is built, not the Mosque around it or the area around the Mosque amounting to some square miles called haram. The hijr of Ismael a ’C’ shaped wall attached to one side of the House is not included in the space which is called Qiblah. CR # 37.It is not necessary for those who live far from the House to be ona straight line with the House. What is required from them is to face the direction where the House is. To find the direction of the House one must depend on common sense and no mathematical accuracy is required.

CR # 38. It is necessary, if possible, to know where the Qiblah is. If this is not possible, one may depend on the signs and evidence of the greatest probability of being true. It is hard for one to depend on what two just people say in this matter, if it is possible for him to find out the direction of the Qiblah through other ways. It is not an offense to depend on the testimony of the two just people. If it is not possible to find any evidence indicating the direction of the Qiblah, one must pray to all four sides, once to each side, as a precautionary measure, even though once to one direction could also be considered enough. CR # 39. One who is convinced about a certain direction as being the direction of Qiblah by doing his best and by using the evidence available, he

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does not need to search again for the next prayer as long as the evidence has not been proved wrong, CR # 40. If zuhr is prayed to a certain direction according to some evidence, but for the ’asr stronger evidence shows the direction different from the first one, ’asr must be prayed according to the latter evidence and zuhr must be prayed again if the difference between the two directions is more than 90 degrees.

CR # 41. One who doe not know which is the direction of Oiblah if he wants to do something that requires the facing to Qiblah, besides prayer, like slaughtering animals he must learn where the direction of Qiblah is but if he would have no way to find out then as a case of emergency to whichever direction that he may face is enough.

WHEN IS IT NECESSARY TO FACE THE QIBLAH (1) It is necessary to face the Qiblah in all The obligatory prayers; those prayed in time or completed as the remedy of those missed in their proper time.

CR # 42. To face the Qiblah in the optional prayers is one of the conditions required only when in a stationary position, not when one is walking or riding.

CR # 43. In the standing and sitting positions the face and the front part of the body must be facing the direction of the Qiblah. In the Lying position if one is Lying on the right side, again, the face and the front part of the body must face the direction of the Qiblah. If the person is Lying on his back, the soles of his feet must face the direction of the Qiblah. (2) When a person is dying, he has to be laid down on his back with his feet towards the direction of the Qiblah. (3) During the prayer for a dead person the head of the dead person must be placed to the right side of the person praying and the feet to his left. (4) In the grave the dead body must be placed on its right side with its face and the front parts of the body facing the direction of the Qiblah. (5) During slaughtering an animal, the belly, chest and front parts of its body and the person slaughtering the animal must face the direction of the Qiblah. For the person slaughtering, facing the Qiblah is only a precautionary measure which should not be ignored.

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CR # 44. During using W.C. it is not lawful to face the Qiblah, and it is Ehtiyat (a precautionary measure) not to do so even when washing the private parts or doing Estibra, a technic to dry out the urine passage. CR # 45. It is Makruh (abominable) to face the Qiblah when having sex or in any position which would be disrespectful to the Qiblah. CR # 46. In the following conditions it is Mustahab (recommended) to face the Oiblah: (a) When praying an informal prayer (Du’a). (b) When reading the holy Quran. (c) During praising or thanking Allah. (d) During the informal prayers after the formal prayers.(e) During a hearing before the judge. (f) In a prostrating position to thank Allah. (g) During sitting position at all time.

THE EFFECTS OF NOT FACING THE QIBLAH CR # 47. If one with the knowledge of the necessity of facing the Qiblah in a prayer intentionally ignores to face the direction of the Qiblah, his prayer will be considered void. If the rule is not obeyed because of ignorance, forgetfulness, unawareness mistake or lack of time, as long as the deviation from that direction is less than 90 degrees, the prayer is valid. If one does not know the necessity of facing the Qiblah in a prayer, it is necessary for him to pray again, or its remedy if the time is over, especially, if because of his shortcomings. If one comes to know of the deviation during a prayer, one has to face it properly, and continue his prayer, regardless, there is enough time or not.

CR # 48. If one ignores to face the direction of Qiblah while slaughtering an animal with the knowledge of the necessity of facing it, the animal slaughtered will be considered improperly slaughtered. If it is out of forgetfulness, ignorance or because one could not find the right direction, the animal will be considered properly slaughtered. Also it is not an offense if it is for some

reason; the animal does not allow itself to be turned to the

direction of Qiblah or there is no place to turn him like his having fallen into a well etc.

CR # 49. If a dead body is buried against the rule of the Qiblah, it is necessary to place it properly by opening the grave before the body decays,

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regardless, it was buried improperly at first, because of ignorance, forgetfulness or the intention to do so. It is necessary to open the grave for the above said purpose, provided, no disrespect will be caused to the dead body.

SECTION NO. 4 CLOTHING DURING PRAYER CR # 50. It is necessary to cover one’s private parts from all the responsible people, male and female relatives and others.

CR # 51. It is unlawful to look at the private parts of any responsible person, except wives and husbands and the master and his slave girl, provided, the girl is not married to some one else. Also it is not allowed to look at the private parts of one’s young sister who can discern good from bad and one must cover one’s private parts from them. CR # 52. Women must cover their whole body except their faces and hands from all the others, except their husbands and relatives, provided, there is no

lustful tendency in the case of the relatives.

CR # 53.If no lust is accompanied in the case of relatives, it is necessary to only cover from the navel to the knees. CR # 54. It is unlawful to look at the images of those parts of the people’s body reflected by reflecting materials such as water, mirrors, etc. which must be covered even if no lust is accompanied. CR # 55. No particular form or quality is required for the covering for ones body. The only requirement is to cover one’s private parts even if the covering is some thing like plaster. CR # 56. During prayer men have to cover only their back and front private parts. It is sufficient for the covering to be thick enough to hide the color of the parts. It is a precautionary measure to cover them with something such that their image should not be seen from behind the covering. However, it is not an offense if the magnitude of those parts can be seen from behind the covering. It is better to cover one’s body from the Navel to the knees.

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CR # 57. Women must cover their whole body during prayer except their face, hands and feet to the ankle. Some of the parts excepted must also be covered to make sure that the rule is properly observed. CR # 58. One must observe the rule about covering during prayer, whether someone observes it or not. CR # 59. It is not necessary for women to cover the ornaments on their face and the artificial hair. CR # 60. It is necessary to observe proper covering during the acts of prayer performed as remedy and qada of the original even according to Mustahab Thtiyat during Sajdah because of mistake in the prayer.

CR # 61. It is not necessary for a girl less than nine years of age, to cover her head, neck and hair during prayer, but it becomes compulsory when she completes her ninth year of age.

CR # 62. The kind of covering in question is a necessary condition for all the obligatory and optional prayers and their forgotten parts which one has to complete after the ending phrase of a prayer as the remedy. Only during the prayer for a dead person the above mentioned kind of covering is not required. CR # 63. It is necessary to cover one’s private parts of the body during tawaf (walking seven times around the holy House in Mecca). CR # 64. If one during prayer finds out that his privacy is uncovered he must cover it and according to a Mustahab Ihtiyat complete the prayer and pray it all over again especially when covering would require a long time but if one learns after the prayer that his privacy was not covered during prayer his prayer is valid.

CR # 65. The parts of the body that are to be properly covered during a prayer must be covered from all sides so that no one can see them. CR # 66. The private parts must be covered such way that even oneself cannot see them. If one can see his private parts in certain positions, this will turn his prayer void.

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CR # 67. If the covering is such that it covers the private parts in a certain position not in others, if it is possible to properly cover with it the parts to be covered in every position, the prayer will be valid. CR # 68. If would have no covering to use during prayer not even such materials as leaves, mud or ditch in which to stand during prayer and does not think that he can find any covering until the end of the time for prayer if he thinks that some one will see him he must pray sitting and bend for Ruku‘ and Sajdahs and make bending for sajdah a little more than for Ruku‘and raise the turbah or some earth to his forehead to touch during sajdah. If he thinks that no one would see him then according to Mustahab pray standing also and use his hands as covering for his privacy. In one of these prayers the Ruku‘ and sajdahs should be in the normal manners and in the other one the Ruku‘ and sajdas should be by the gestures of the head, although one prayer with gestures would also be enough.

THE CONDITIONS (About Clothing for Prayer) (a) The clothing to be used during a prayer must be clean in the sense required by the laws of taharah. The uncleanliness of small pieces of clothing like socks or something in one’s pockets or a belt etc. with which one’s private parts cannot be covered will not harm one’s prayer. (b) The clothes to be used during a prayer must be such that one can legally use them during prayer. If one does not know that he is not allowed by the owner to use them, has forgotten or does not know that to pray with such kind of clothing is not lawful, a kind of ignorance for which the law would excuse him or has forgotten this fact or he has no other choice, in this cases, it is not an offense to use them during prayer. However, if one himself is the usurper and has forgotten about according to Ihtiyat he should pray again with lawful clothings. CR # 69. It makes no difference whether the very substance of the clothing would be usurped or is the benefit of the usurped substance. For instance, if one buys clothes with the money from which one has not paid the religious dues as Zakat or Khums or has not paid the dues on that money even from other money or one’s property, the clothes would still be considered as usurped. If a person dies without paying his debts either religious dues or

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others and the debts will be equal to the whole legacy, in this case, no one will be allowed to use anything from his legacy without the permission of a person who is an authority according to the law such as the qualified Mujtahids. If a person dies and his heirs are not of the ages fifteen for males and nine for females and for whom the deceased did not appoint any guardian, again no one would be allowed to use anything from the legacy without the permission of a qualified Mujtahid. CR # 70. It is not an offense to carry a usurped substance during prayer as long as it is not moved during the movements of the person praying. However, according to the strong reasons even if the substance is moved during the movements of the person praying, still it will not be an offense to carry it during prayer. (c) The clothing to be used for prayer must not be taken from animals which has died without being slaughtered properly according to the Islamic Laws, regardless, the animal is edible or not, or is the kind that have spurting blood when slaughtered or not; in the latter case the decision is based on a necessary precaution. If it is not exactly known that a certain substance is from the skin of some animal or something else, there would be no offense to use it during prayer. There is no harm to use those parts of the edible animals, which are not of the living ones, such as wool, even if the animal had not been slaughtered properly. (d) The clothing to be used during prayer must not be taken from the animals which are not edible, regardless, they have spurting blood or not, or whether it is from their living parts or those that have no life as wool etc. It makes no difference whether they are big enough to cover one’s private parts or not. Even one hair of an animal which is not edible, is not allowed to be carried during prayer.

CR # 71. During prayer something from an inedible animal is carried because of ignorance is valid. The same rule applies if it is out of forgetfulness or not knowing that one is not allowed to carry such substances - or has forgotten the rule. However, if one is ignorant of the rule because of one’s shortcomings in learning it, he is obliged to make up this prayer. CR # 72. If one doubts about a substance whether it is from an edible or an

inedible animal, or whether it is from some other source, a prayer with such substance will be valid.

CR # 73. It is not an offense to carry candle wax, honey, mixed silk, bugs, fleas, wasps and the like which have no flesh, during prayer. In the same way

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it is not an offense to carry sea-shells, human hairs, spit and milk, during prayer. CR # 74. The skin of the squirrel, according to a necessary Ihtiyat must not be used for prayer. However, it is not allowed for one to use the skin and the fur of the Sable. (€) Men are not allowed to carry anything made of gold during prayer even if it is a ring, however, there is no offense if they are polished with gold. This rule does not apply to women. If a man carries gold coins or a watch, this will not harm his prayer. During prayer men are not allowed to carry a watch or a chain around his neck. CR # 75. If due to forgetfulness, or ignorance for which the law may excuse him a man carries gold during prayer, this will not harm his prayer. CR # 76. It is not permissible for men to wear gold all the time, for this is a sin. There is no offense in the cases where using gold cannot be called wearing, such as a golden tooth, a tooth holder or a tooth filled with gold. (f) During prayer men must not use clothes which are made of pure silk. Also, it is not allowed for men to wear clothes of pure silk all the time, except in times of war or emergency cases such as sickness or cold weather. During prayer it is allowed for men to carry silk or using it as house hold articles which cannot be considered as clothing. It is not an offense to use silk fabrics in a ribbon form to decorate clothing, provided, it is not wider than the area covered by the four fingers even though the ribbons are stitched in more than one place. However, it would be a necessary precaution to avoid carrying a piece of silk fabric which would be enough to cover one’s private parts for a prayer. CR # 77. It is not allowed to wear a clothing of which the lining is of pure silk even if the lining is half the size of the main clothing. CR # 78. It is not an offense to use clothes which are made out of half silk and half from the.other materials with which prayer is valid. The mixture must be such that it can no longer be considered pure silk.

CR # 79. If there is doubt whether a certain cloth is made from silk or not or whether it is mixed with other fabrics or not, there is no harm to use it during prayer.

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CR # 80. It is allowed for the guardian of a child to clothe him in silk. However, the child’s prayers will not be valid in such clothing.

CR # 81. If one cannot find the kind of clothing required for a prayer, but it is possible to find other means of covering one’s private parts such as using leaves or mud etc., one must pray in the normal way. If he cannot find even the latter means of covering and there are no one from whom it is necessary to cover oneself to see him, he has to pray standing and for the Ruku’ and Sajdah make certain gestures. In such case, it is Ehtiyat to place one’s hand on the front and back parts. If one does not feel safe from the on-lookers, one has to pray sitting and make © gestures for the Ruku’ and Sajdah, and as a precautionary measure the

gesture for the Sajdah should be lower than the ones for the Ruku’s. CR # 82. If no other substance is available for a prayer besides the usurped clothing made of gold or silk, taken from inedible animals or unclean and one is forced to use them as clothing, one may pray with them and his prayer will be valid. If there is no emergency to wear them, in the cases of the first four substances instead of using them as covering he must pray naked. In the case of unclean substance, it is a precautionary measure to pray both ways; naked and using the unclean substance as covering, although it is more evident that prayer in such a case, will be considered valid.

CR # 83. If one thinks that one may later find proper covering, it is a necessary precaution not to pray at the beginning of the time for a prayer but to wait. However, if one has no hope of finding covering later and prays at the beginning of the time for a prayer, as long as the case remains the same all through the time, his prayer will be valid, but if later he finds the covering required, his prayer will not be considered valid.

CR # 84. One who has two kinds of covering; one silk or usurped and the other is of the category with which it is allowed to pray but does not exactly know which is which, he should use neither of them but rather pray naked. In the case, such as the one above if one knows that one kind of covering is from an edible animal and the other from inedible animals or that one is an unclean substance, he must pray two prayers using one covering for one prayer and the other for the second prayer.

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SECTION NO. 5 THE PLACE OF PRAYER CR # 85. It is not lawful to pray at a place which is not legally owned, regardless, the very substance of the place is usurped, it is the benefit of an illegally owned property or someone’s right is involved therein; but one may lawfully pray under the roof or a tent that is usurp if the space underneath is not part of the roof or the tent. However, if he believes that the place is not illegally owned or has forgotten and he has not usurped it, his prayer will be valid. The same is true for the one who has no other choice or is forced to use such a place, such as the prisoner confined for no lawful reason. It is permitted to pray at a place wherein it is not allowed to stay because of some danger to one’s life or body, and at a place under an illegally owned roof or a place of gambling.

CR # 86. If one believes that a place is not legally owned and prays therein, his prayer will be void even if later he discovers that it was legally owned. CR # 87. A share holder of a company is not allowed to pray on the company’s property unless the other share holders allow him. CR # 88. To pray at a place of an unknown owner also is not allowed unless one has permission from a qualified Mujtahid.

CR # 89. If a person occupies a place in the Mosque which another person has prepared for himself to pray and who does not like other to pray there, it would be difficult to consider the prayers of the occupying person as valid. CR # 90. Prayer is not valid on a usurped place as long as the owner of that place does not permit the person to pray therein. CR # 91. Permission from the owner does not need to be in a verbal form so that one may pray there or use it for a purpose which requires to be fulfilled by the permission of the owner. It can exist through the owner’s act such as his not preventing the prayer, an understood attitude that if the owner was to know about the worship completed on his property, he would no doubt allow the person to complete his worship therein.

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CR # 92. Commercial and public places which are opened most of the time cannot be considered the same as the charitable ones for which an understood permission exists. Thus, in the case of the commercial places it is necessary to first obtain permission to pray or make use of them for all the purposes which are to be fulfilled with the permission of the owner.

CR # 93. It is not an offense to pray in the open places and have Wudu with the water therein, even if one does not have an idea of the permission of the owner, provided, the owner is not a child or one suffering from mental-illness or it is known that the owner does not like anyone to pray therein. Also it is not an offense to pray in open gardens which have no fences around them or any sign of being not for the public. However, if one thinks that the owner does not like people to use the place, it would be a precautionary measure not to use it. CR # 94. According to a strong reason it is not an offense if a man and a woman pray at the same place parallel to each other, provided, the distance between them is more than a foot, although it is Mustahab Ehtiyat that a man should be ahead of a woman by at least a yard; that there should be a curtain between them, or a distance of about ten yards. It makes no difference whether they are wife and husband, relatives or others.

CR # 95. It is not lawful for one to pray in front of the graves of the holy prophet and the infallible Imams if it will cause disrespect to them, however, it is not an offense if the distance in between is far enough or something distinctly separates the two places also one, according to a necessary Ihtiyat must not pray parallel to such graves.

CR # 96. According to the holy Quran certain people are allowed to enter certain houses, pray there and use the house-holds like the houses of one’s father, mother, brother, uncle, aunt, the house which belongs to one and the

houses of one’s friends. If one knows that they do not like him to enter their houses, one is not allowed to enter such houses without the permission of the owner. CR # 97. One who because of ignorance, forgetfulness or thinking that he is allowed, enters a place where he is not supposed to and then discovers that he was not allowed to pray there, if there is enough time and he has started a prayer, it must be discontinued. If the time is about to expire, one has to start

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the prayer when coming out and try to get out of there as quick as possible by the nearest exit, observe the direction of Qiblah as far as possible, make

gestures for the Rukuw’ and Sajdah of the prayer in the usual way, unless it can be considered an extra use of the place in which case he must make the gesture for the Sajdah the same as that for the Ruku’. Such prayer will be considered valid and no Qada, remedy, is required. The expiring time in the above rule means that after coming out of such place one will not be able to pray even one Rak’at in time.

CR # 98. Cleanliness of the place where one places his forehead during Sajdah is another condition besides the other conditions required for the place where one prays. Another condition is that the object on which one places his forehead during Sajdah can be called earth or part of the earth by common sense, such as leaves and paper. It is better that such object should be made of the soil taken from the grave of the grandson of the holy Prophet, for texts say that this has a great virtue. It is not lawful to use during Sajdah the objects that common sense would not consider as earth or part of the earth, such as minerals and plants. There is no harm to use during Sajdah bricks and lime-stones after they are baked. CR # 99. For the usability of the plants for Sajdah one condition is that they must not be of those which people commonly use for food, like wheat, barley and fruits even before the time they are ready for consumption or can be used for food unless cooked. There is no harm to use during Sajdah the skin, the seed, and the stems of fruits and hay of wheat and barley. It is difficult to consider lawful during Sajdah the use of certain plants which are considerably sweet or their taste attract certain people. There is no harm to use during Sajdah those plants which are used for medicine and are not sweet or are only used for food in an emergency or only a few people use them. CR # 100. The object used during Sajdah must not be of the materials used for clothing like cotton and silk, even before they are made into threads, but it is not an offense.to use their stems, leaves and those parts not commonly used for clothing or are only used in rare cases or only a few people use them.

CR # 101. Paper can lawfully be used as the object on which a person praying has to place his forehead during Sajdah, regardless of the material out of which it is made, such as cotton or silk.

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CR # 102 It is allowed to use during Sajdah some written paper, provided, the writing is not to the extent of painting and coloring.

CR # 103. In case, one may not have the chance to get the proper object for Sajdah; there are people who dislike one’s doing so, there is no harm to use any object during Sajdah as what the circumstances may be. If the reason would be other than what is already mentioned, like the scarcity of the proper object or unfavorable weather etc., it is necessary to use one’s clothes during Sajdah. If this also would not be possible, one may place his forehead on the back of his hands or if this too would not be possible, one may place his forehead during Sajdah on anything which under normal cases are not lawful to be used during Sajdah. CR # 104. One is not allowed to place one’s forehead during Sajdah on mud or the kind of soil which does not stay under one’s forehead. If anything from the proper soil would stick to one’s forehead during Sajdah, it should, because of a precautionary measure, be removed from the forehead for the next Sajdah. If nothing besides mud which slips under one’s forehead would be available for Sajdah, one must while praying, make gestures for Sajdah instead of using such mud. CR # 105. If the earth is so muddy that it will stick to one’s clothes and will create an unbearable condition for him, he is allowed to pray making gestures for the Ruku’, Sajdah Tashahhud and the Salam of the prayer.

CR # 105. If during Sajdah one would lose the proper object, he should discontinue the prayer to find one, provided, there is enough time left for the prayer, otherwise, he should continue the prayer as in the case of an emergency. CR # 107. One who places his forehead on an object which he believed was the proper one and discovers it to be otherwise after raising his head from the Sajdah, he should, as a precautionary measure, have Sajdah once again on a proper object, even though he may have had both Sajdahs on the wrong object and then start the prayer from the beginning. If he discovers it during a Sajdah, he must raise his head and place it on the proper object, if possible, and according to Ehtiyat start the prayer from the beginning, provided, there is still enough time.

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CR # 108. The place where one prays must be such that he can stand there steadily throughout the prayer. It is not allowed to pray while riding without being able to maintain steadiness. There is no harm to pray riding if steadiness can be maintained, regardless, the object or animal is moving or not. If steadiness and facing the direction of Qihlah cannot be maintained,

_ the prayer will be considered void, unless it is an emergency in which case

one must try his best to maintain facing the direction of Qiblah as far as possible. If one would have no chance to face the direction of Qiblah during prayer except during the first Takbir, the phrase with which the prayer starts and is an elemental part of the prayer, one must not miss that chance and continue with the rest of the prayer even though he may not face that direction any more. If one cannot face the direction of Qiblah even during saying the above mentioned Takbir, he does not have to face it, it would be Ehtiyat to face the direction nearest to Qiblah. The same applies to the people who may face such a situation when walking or for other reasons.

CR # 109. There is a strong reason that it is lawful to say an obligatory prayer inside the holy Ka’ba in normal cases, although it would be an Ehtiyat not to do so, however, in an emergency it is allowed, as it is allowed in the case of the optional prayers all the time. The Places Where It Is Preferable to Pray (a) The best place to pray is the holy Mosque in Mecca, in which one’s prayer would be considered a hundred thousand prayers. (b) The Mosque of the holy Prophet where one prayer would be considered as ten thousand prayers. (c) The Mosque of Kufa and Al-aqsa Mosque where a prayer would be considered as a thousand prayers. (d) The Mosque in a town which is assigned for Friday prayer where one prayer would be considered as a hundred prayers. (e) The Mosque of a community where one prayer would be considered as twenty five prayers. (f) The Mosque of a market place where one prayer would be considered as twelve prayers. The best place for women to pray is their houses and the best place in their houses is the most private ones therein. (g) It is recommended to pray in the holy Shrines of the Imams. It is said that their Shrines are more virtuous for a prayer than the mosques. It is narrated that one prayer in the Shrine of Imam Ali (a.s.) would be considered as two hundred thousand

prayers.

CR # 110. It is Makruh, abominable to ignore a mosque. it is narrated that on the Day of Judgment three things will complain to Allah: (a) an ignored

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mosque where no one prays, (b) a scholar who lives among the ignorant people, (c) The copy of the holy Quran Lying under the dust unread and ignored.

CR # 111. It is recommended to visit a mosque often, for it is narrated that in walking to a mosque for each step going and coming back one will be rewarded as much as for ten good deeds, his ten sins will be forgiven and he will be raised ten degrees high in virtue. It is Makruh, abominable, for the neighbors of a mosque not to pray in the mosque without reason. It is narrated that the neighbors of the mosque should pray no where but in the mosque. CR # 112 It is recommended that one should place something in front of the object which he uses for Sajdah if people pass by the place of one’s prayer. CR # 113. It is said that it is Makruh (abominable) to pray in bathing houses, trash houses, slaughter houses, liquor houses, places where animals are kept, all filthy places and on the road. However, if praying on the road may harm the by passers it is unlawful to pray there and the prayer is void according to a necessary Ihtiyat. It is Makruh to pray in water beds, salty ground, fire houses, in the kitchen, a place in front of which there is a burning fire, lamp,

a statue of a living thing, an open book, on a grave, in the grave yard, facing a save, between the two graves and where a human being happens to be face to face with a person praying.

SECTION NO. 6 The Adhan and Eqamah It is strongly recommended to say Adhan and Eqamah before the daily prayers, regardless, they are the ones prayed at their proper time, the remedy of those missed, whether one is at home, on a journey, in good health or in illness, praying alone, in congregation, or one is a man or a woman. This recommendation is stronger about the prayer said at its proper time, especially, the Maghrib and the morning prayers. The recommendation is still more strong about the Eqamah for men. It is a Mustahab Ehtiyat (preferable precaution) for them to say Eqamah before each of the daily prayers.

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CR # 114. It is not lawful to say Adhan or Eqamah before the optional prayers and the prayers other than the daily ones. CR # 115. Those who are in ’arafat ready to leave for Mash’ar in the evening of the ninth of Dhil-hajj, do not have to say Adhan for the ’asr prayer of that day if they have prayed the zuhr and ’asr prayers of That day together. There is no Adhan for the ’isha prayer, if it is prayed together with the Maghrib prayer of that night. CR # 116. There is no Adhan and Eqamah in the following cases: (a) The Imam of a congregation does not have to say them if he has already heard them from other people. (b) A person joining a congregation does not have to say them if they were said for the congregation before the person joining arrived. (c) A person entering the Mosque does not have to say them if he enters it before the congregation has dispersed, regardless, he is going to pray as an Imam or behind an Imam, in a congregation or alone, provided, the place can be considered one and the same. Another condition is that the previous congregation should have been held after saying the Adhan and Eqamah. In case, the previous congregation did not have to say them because of the congregation concluded before it, the person in question should say them by himself. Another condition is that the previous congregation must be a proper one. If the Imam of that congregation was not a qualified one and the people praying behind him knew this fact, again the person in question should say them by himself. (d) A person who hears another person saying them, provided, he has heard it thoroughly. If he hears only some of the phrases, he should say the rest in the proper order of the phrases. The Phrases of Adhan

(1) ALLAHU AKBAR four times. (2) ASHHADU AN LA ELAHA EL LALLAH twice. (3) ASHHADU ANNA MUHAMMADAN RASULULLAH twice. (4) HAYYA’alas SALAH twice. (5) HAYYA ’ALALFALAh twice. (6) HAYYA ’ALA KHAYREL ’AMAL twice. (7) ALLAHU AKBAR twice. (8) LA ELAHA EL LALLAH twice. The phrases of the Eqamah are the same less two ALLAHU AKBARS from the beginning and one LA ELAHA EL LALLAH from the end plus twice QAD QA MATES SALAH after the sixth phrases.

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CR # 117. It is recommended to say ALLAHUMMA SALLE ’ALA MUHAMMAD WA A’LE MUHAMMAD whenever hearing the name of the Prophet.

CR # 118. Evidently, the phrase ASHHADU ANNA ALIYAN AMIRAL MU’MENINA WALIYULLAH twice after the phrases No. 3. in both the Adhan and Eqamah is part of the two readings.

THE CONDITIONS (ABOUT THE ADHAN AND EQAMAH) (a) To decide to read all the phrases of the Adhan or Eqamah in obedience to Allah and continue this decision to the end of the reading and to determine the purpose for which the readings are. (b) That the person saying them must be of sound reason and a believer in Islam. (c) A woman reading for men is not enough. However, for their own kind it is valid. (d) To maintain proper order between the two readings and among the phrases in each reading by saying the phrases again if they are missed or starting from the beginning if repeating the phrases again and again may not cause discontinuity in the whole reading. (e) To say all the phrases without a long interval in between and between the two readings as a whole. A disorder in this sense should be corrected by starting the whole reading from the beginning. (f) That they must be read in Arabic with correct pronunciations. (g) That they must be read after the proper time has come for the prayer of which they are supposed to be an introduction. CR # 119. It is allowed to say Adhan before dawn as a general call for prayer. CR # 120. It is Mustahab (preferable) to have a formal purification (wudu) for the above mentioned readings and they should be said in a standing position.

CR # 121. It is Makruh (abominable) to talk about other things during the reading, especially, when saying the seventh phrases in the Eqamah, except if the talking is related to the prayer.

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CR # 122 It is Mustahab to maintain a short pause after finishing each pair of phrases before starting the next ones. The reading should be slower in Adhan and quicker in Eqamah. The letters ’A’ and ’H’ in Allah should be distinctly pronounced whenever the word comes. When coming to a Takbir two palm should be placed in the ears when saying Adhan. The Adhan should be said with a higher and longer pitch of voice if the reader is a male. In Eqamah too it is Mustahab to raise one’s voice but less than the way one would do in Adhan. CR # 123. If one who has already said the first Takbir of the prayer, but has forgotten to say Adhan and Eqamah, he is not allowed to discontinue the prayer to recollect Adhan and Eqamah. This rule is based on a precautionary measure. If Adhan and Eqamah are missed out of forgetfulness, if one has not yet reached the Rukuw’ it is Mustahab to discontinue the prayer and recollect them. If Eqamah alone is forgotten, it is Mustahab to recollect it before starting the first chapter of the Quran read in a prayer.

SECTION NO. 7 The Obligatory Parts of a Prayer (1) Intention. (2) Takbiratul Ehram the first phrase (ALLAHU AKBAR) after the intention to pray. (3) The standing position. (4) The recitation. (5) The phrases to be said during Ruku’ and Sajdah. (6) The Ruku’. (7) The Sajdahs. (8) The Tashahhud (testimony). (9) The ending phrases (Salam). (10) Proper order. (11) The continuity in the sense of completing the whole prayer each part after the other without delay in between. The Elemental Parts

(Number one, two, three, six and seven) Detail About Each Part

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THE INTENTION. CR # 124, Intention, in general, means to decide and make up one’s mind to

do something. Intention in this context means the decision for which the only cause would be obedience to the order of Allah. CR # 125. When making the decision, it is not necessary to speak out loud one’s intention, present the whole picture of the worship in one’s mind, give the details about the quality of the worship act such as being an obligatory, a preferable one cr to make a distinction between the obligatory and the non-obligatory ones. Only a general decision based on the order of Allah as the sole reason behind would be enough to fulfill the legal requirement and make one’s worship distinct from the acts of the people forced to do something, acting by mistake, unintentionally or for no reason. CR # 126. The intention must be purely to obey Allah. An intention accompanied with dissimulation such as to show off by praying in a congregation, in a Mosque, in the first line of the congregation, behind a certain Imam, praying at the beginning of the time or the like will turn the prayer or any other worship void, regardless, it is included at the beginning, in the middle, in some parts of the prayers, in the very worship act or its conditions. However, association of dissimulation in the formalities detached

from the prayer like removing uncleanliness from one’s body or clothes for prayer when one is sincere during prayer will most probably not harm one’s prayer. An unexpressed feeling of pride within oneself for one’s worship which would disturb one or a worship act made public to remove other’s suspicions of considering him a careless person, will not be considered as invalidating one’s prayer or other worship acts. Expressing a hypocritical viewpoint after the worship act is completed does not harm the worship act completed before such expression. Feeling proud of one’s worship does not invalidate one’s worship, whether it may emerge during the worship or after it. Other associations in one’s intention besides dissimulation which are of an illegal nature will also invalidate one’s worship. However, if they are not of an illegal nature and the intention to worship could be considered enough cause to make one worship, even though no other reasons exist, the worship will be valid. If the motive to worship is not strong enough to be considered as the only cause to make one worship, the worship will be void.

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It is necessary to determine the prayer which is intended if it can some how be distinguished. At least a distinction of a general nature would serve the purpose of distinguishing the worship act which one is going to start like starting with the intention of praying because of one’s duty. If one starts a prayer with no distinction in his intention; whether the prayer is going to be the morning prayer which is obligatory or the one which is optional, such a prayer would be good for neither of them. If it is not possible to make a distinction between them such as when one assumes a vow to pray two optional prayers, it is not necessary to make a distinction between them. If one has to pray a certain prayer but he does not know whether it is a prayer in time or one as the remedy for one missed at its proper time, it is necessary for him to specify the prayer in his mind; to know that it is his duty to pray the zuhr prayer as a remedy or the zuhr in time the prayer will be valid, provided, he prays with the intention to fulfill the duty which is his obligation of the present time. If one believes that the prayer which one has to pray is the one for which there is still enough time and with this intention completes the prayer, again, his prayer will be valid, even, in fact, the case is contrary to what he believed.

CR # 127. If one prays with a clothe and is not sure whether it is clean or not but after the prayer discovers that the cloth was clean, his prayer will be valid. If one starts a prayer at a place and is not certain of being able to complete it there because of the crowd, but gets the chance to complete the prayer there, again, his prayer is valid. It makes no difference in both cases, whether he had other alternatives such as other clean clothes and safe places or not; the rule would be the same as mentioned. The above rule could also be stated as this: It is not necessary for an intention to be hundred percent practicable. CR # 128. As mentioned before it is not necessary to bear in mind one’s intention during the entire act of completing a worship act with all the details and the particularities therein. The intention must be continued lo the end of the act in a general sense that if one is asked at any time during the prayer what one is doing, he must be aware of his act and give the exact answer; if

one would question himself, he should find what his intention during the act is. This kind of continuity in one’s intention would be enough for the required continuity of intention through the end of a worship act. The intention made at the beginning of an act must not be changed by a difference which may conceptually take place in the human mind whenever intending to change one’s intention from one kind to another.

CR # 129. If during a prayer one decides to discontinue one’s intention or later decides to do something which discontinues one’s intention, if the prayer is completed in this situation, it will be void. The same applies to the parts of the prayer which have been completed in such a situation but then one re-assumed his first intention. If one re-assumes his first intention before any part of the prayer has been completed, the prayer will be valid. CR # 130. If one doubts whether the prayer which he is praying was intended to be zur or ’asr, if zur has not yet been prayed, and he assumes it to be zahr, the prayer will be valid, but if zuhr has already been completed, the

prayer in which the doubt has raised will be void.

CR# 131 In the above case if one finds himself praying ’asr but at the same i time doubts whether he decided at the beginning it to be asr or zuhr, ifone completes suck prayer as ’asr it will be considered valid. CR # 132 If one starts 2 prayer which is obligatory and completes it unintentionally, thinking that itis an optional one, his prayer will be valid as an obligatory onc, and the same is truc if the case would be contrary. CR# 133. If one intends to pray and starts it, but doubts whether he started the one which was intended or another one, it wouldbe a precautionary measure to complete the one already started and pray one again. CR # 134. One is not allowed to change one prayer to another except in the following: (2) If two prayers are of the same time like zuhr and ’asr or Maghrib and “isha in their respective times and one starts the one coming later, be must change his intention and go back to the one that originally comes first. (b) If one starts to pray the remedy for the prayers of the prescribed order such as zuhr and “asr of the same day but starts the one Which is following rather than the one preceding it, again, one has to change kis imteniion to the one coming first. (c) If one starts a prayer for which the tame has come and recalls that the remedy of some prayer missed beforeis due, agzim, be is allowed to change his intention to the one which is the

remedy of the onc missed. In the above case, to change the intention is allowed, provided, if # 1s manageable to do so, if the case is not manageable, such 2s praying “isha when one is already in the fourth Rukw’ and recalls that a remedy of Maghrib is duc, im this case, it is not manageable to go for the

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remedy. If this happens in the other cases mentioned before, the prayer will be void and one has to start the one required as mentioned in (a) and (b)(d). If one recites in the first Rak’at of the Friday prayer something other than the chapter No. 62 of the Quran and realizes when he has finished more than half of the other chapter which he is reciting, it is Mustahab to change it to an optional prayer and later start the Friday prayer from the beginning. (e) When a congregation commences after one has already started his prayer, he should preferably change his prayer to an optional one, if it is manageable, and join the congregation. (f) When on a journey if one starts a prayer and during this prayer decides to stay there for ten days, as long as he has not yet said the ending phrases (Salam) he must change it to the form of the prayer which one has to pray when at home; or like the one who has intended to stay somewhere on a journey for ten days. If during a prayer one changes his mind and decides to leave before ten days, as long as he has not yet come to the position of the third Ruku’, he must change this prayer to the prayer which is the duty of a person on a journey, that is, praying two Rak’ats instead of four. CR # 135. If one changes his mind from one prayer to another when it is not the proper place to do so, as long as he has not yet done anything to invalidate a prayer, he may go back to the one that he started before but if he has done such things, if it is done purposely both prayers will be void, if it is out of forgetfulness and he becomes aware of the fact, he should complete the first one if no unwanted Rukw’ or Sajdas are added. CR # 136. If one starts praying the remedy for a prayer but in between recalls that he has to pray another remedy of which the original was missed before the original of the one which he has started, in such a case, he may change to the latter one; the same is true if there is a series of them being of the same nature as those mentioned above.

THE TAKBIRATUL EHRAM It is also called the introductory Takbir. Its form is ALLAHU AKBAR, meaning Allah is greater than He could be described. It is called Takbiratul Ehram for after it is said one is not allowed to do certain things.

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translation in other languages is not enough. CR # 138. This phrase is one of the elements in a prayer, if it is missed either mistakenly or intentionally, the prayer will become void.

CR # 139. If it is said twice the prayer will be void unless it is said once more. In brief, the even numbers must always be made odd. However,

for an

additional one because of a mistake a prayer will not become void. CR # 140. It is necessary that the letters and the composition of the phrase be those of the Arabic language and according to its rules. One who does not know must learn or say it as dictated to him by someone who knows. If this is not possible he may say it in the best way possible for him. If he cannot say the proper wordings of the phrase he may say it in other words with the same meaning and if this is not possible he may say its translation. CR # 141. It is a Mustahab precaution not to join it with any reading before or after it. Joining means to pronounce some letters of a word which have no sound of their own to the sound of the last letter of the word before it which has a sound, or to omit the sound of the first letter of a word in order to let it

be pronounced by the sound of the last letter of this phrase. Thus, it should not be pronounced with the sound of the last letters of any reading before it nor should its last letter be used to pronounce the first letter of the word following it. CR # 142 No words used to indicate Allah’s attributes should be added to the word ’Allah’. The letter ’L’ in the word Allah and the letter ’R’ in Akbar should be pronounced in the way called "Tafkhim’ (high pitch) which is a matter of vocal technique.

CR # 143. When saying this phrase one must be in a standing position; if this rule is ignored either willfully or mistakenly, regardless, the person is one who joins a congregation late when the Imam is already in the Rukw’ position or is not such a person, it will become

void. Steadiness in the standing

position is necessary so that it -Takbir- can be said in a complete standing position. Even though the standing position, contrary to walking or the one distinct from leaning to either side, and steadiness in the standing position are necessary when saying this phrase, but if these qualities of standing are

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mistakenly missed, the phrase as an element in the prayer, will still be considered valid.

CR # 144. A person who is not able to speak must say it in the best possible way for him, if he is not able to speak at all, he must say it in his mind and point with his fingers. It is Ehtiyat (precaution) and better that he should also move his tongue if possible. CR # 145. It is lawful to say six other Takbirs besides the Takbiratul Ehram which will make the number amount to seven. Also, it is allowed to say five or three and decide that the final one will be the Takbiratul Ehram. CR # 146. It is Mustahab for the Imam to say one of them out loud and the rest softly. Also, it is Mustahab to raise the hands up to the ears or up to the sides of the face or up to the sides of the throat with the fingers side by side touching each other and the palms facing the direction of the Qiblah. CR # 147. If one after saying a Takbir doubts whether the one he has said was the one before the Rukw’ or Takbiratul Ehram, he must assume that it was Takbiratul Ehram. If the doubt is about its correctness, one has to assume that it was correct or if the doubt is about whether it was said or not,

if one has started the part after it, the assumption has to be that it was said correctly. CR # 148. It is allowed to say all the Takbirs one after the other without any Duw’a in between. The Standing Position

CR # 149. That portion of the standing position during which one says Takbiratul Ehram and from which Rukw’ position comes into existence is one of the elements in the prayer. The prayer of one who says Takbiratul Ehram when sitting, will be void. In the same way, if one assumes the Rukuw’ position from some other state besides the standing position, his prayer will also be void. Besides the two above mentioned portions of the standing position other parts of the standing position during prayer, although are obligatory positions, are not considered elements in the prayer. Thus, if one completes the recitations while sitting because of a mistake and stands up for the Rukw’ where he finds out that a mistake has been made, his prayer will be valid. The same is true if one forgets the standing positions after the Rukw’ and finds out during the Sajdah that a mistake took place, still his prayer will be valid. ——

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CR # 150. If one bows down for some other purpose and in between decides to assume the Rukuw’ position, this will not be enough; since the Ruku’ has not come into existence from the standing position his prayer will be void. However, if before reaching the proper position for Ruku’ or reaching the position without the decision to assume the Rukuw’ position, one stands up straight and assumes the Rukuw’ position, his prayer will be valid CR # 151. One who bows down for Rukuw’ and unintentionally sits down for the Sajdah, as long as the unawareness took place after the Ruku’ position came into existence, even in a minimum form, his prayer would be valid, although it is a Mustahab Ehtiyat (preferable precaution) to stand straight

and sit down for the Sajdah. In the above case if one comes to know of the mistake after completing one Sajdah he must continue his prayer as it is. It is only a Mustahab Ehtiyat to start a new prayer when the one of the above cases is completed. If awareness comes after the two Sajdahs are completed the prayer is valid and he must continue to complete it. In the same way the prayer is valid if unawareness takes place before a minimum form of the Rukw’ position has come into existence. In this case, he must stand up straight, assume the Ruku’ position and continue his prayer to complete it as required. CR # 152 Under normal conditions it is necessary to stand in a straight position; to lean forward or to the sides will cause the prayer to become void. The same is true if the feet are placed too wide apart which normally cannot be considered straight standing. However, there is no harm to only bow down one’s head in this position.

CR # 153. During the non-elemental parts of the standing position, steadiness is also necessary. It is a necessary precaution to stand evenly on both legs. CR # 154. If it is not possible for one to stand as described before, he may stand leaning or with his feet apart from each other. In this case too, if it is not possible for him he may pray sitting. If this is also not possible he must lie down on his right side, facing the direction of Qiblah. This also being not possible, he must lie down on his left side or if it’s not possible, he must lie on his back with his feet towards the direction of Qiblah. In all cases, he must

make gestures for the Ruku’ and Sajdahs and it is better to make the gestures for the Sajdah lower than those for Ruku’.

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CR # 155. If it is possible for one to stand straight but not to assume the position for Rukw’ he must pray standing, making gesture for the Ruku’, and it will be a Mustahab Ehtiyat to pray again sitting to assume the proper position for the Ruku’. If in the sitting position also Rukw’ and Sajdah are not possible, one must pray standing and make gestures for the Ruku’ and Sajdahs. CR # 156. If it is possible for one to stand up only for some parts of the prayer, he must complete those parts standing and sit for the rest; whenever he feels he is able to stand he must stand up and sit down when standing is not possible for him. To repeat the parts completed when sitting is not necessary. If one has recited Al-Fatihah while sitting but after completing the recitation he can stand, he must stand up only for the Rukw’ not to recite the whole recitation again from the beginning. This applies when the time is not enough. If there is still enough time and if the situation continues to the end of the time, there is no need to pray again, but if he is able to pray properly the second time, he must pray again. CR # 157. If the ability to stand only exists for one of the two parts, it has to be used for the one coming first even if the second one would be an elemental position. CR # 158. The following are Mustahab during prayer: (a) To keep one’s back straight and relax one’s shoulders and arms. (b) To place one’s palms on the front sides of the thighs. (c) To keep the fingers of the hands side by side. (d) To keep one’s gaze fixed on the place of one’s prostration. (e) To face the feet with the toes to the direction of the Qiblah and keep evenly the weight of the body on both feet. (f) To keep the two feet three to ten inches apart and side by side in the case of females. (g) To stand respectfully as before the most respectable master.

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THE RECITATION CR # 159. In the two first Rak’ats of each the daily obligatory prayer it is necessary to recite Al-Fatihah, the first chapter of the Quran, and another complete chapter from the Quran after the Fatihah. If another chapter is recited willfully before the Fatihah the prayer must be started again. However, if it is because of forgetfulness and if one recalls it before the Rukw’ that a mistake has taken place and Al-Fatihah has been recited after the chapter, one has only to recite the chapter again. If Al-Fatihah has not been recited, he must start from the beginning of Al-Fatihah. If one comes to © know of the mistake after. the Rukuw’ or has forgotten to recite them, he must continue the prayer from where he is and the prayer will be valid. _ CR # 160. It is necessary to recite a chapter from the Quran in an obligatory prayer even if it becomes optional for some reason such as a prayer prayed again when one was not required to pray. CR # 161. It is not necessary to recite a chapter from the Quran in an optional prayer even if it becomes obligatory because of a vow etc. However, in the optional prayers, for which reciting a certain chapter from the Quran is prescribed, it is a must to recite the same chapter therein unless the chapter is considered to be more virtuous for the prayer, not as a condition required. CR # 162 A person who is sick, is in a big rush, is afraid of something or does not have enough time to recite the chapter, which is to be recited after the Fatihah in an obligatory prayer, does not have to recite it. In the case of the two first people it is a Mustahab Ehtiyat to do so only when it is very difficult for them. CR # 163. One is not allowed to recite a very long chapter which cannot be finished in the proper time for a prayer. If one does it knowingly, his prayer will be void. If he has mistakenly started it, he must give it up and start another shorter one if there is enough time, but if he comes to know of the mistake after the prayer is finished and the time has expired, he must complete the prayer, even if one Rak’at is not completed in time; his prayer will be void and he will have to say the remedy for the same. CR # 164. It is not allowed for one to recite in a prayer any of the chapters of the Quran in which there is the verse that on being read makes it necessary for one to prostrate. Their verses are in chapters No. 32, 41, 53 and 96.

(Against this rule a weak reason also exists). If one of these chapter is recited willfully, it is necessary to prostrate for the same; thus, Sajdah being done the

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prayer will also become void and if the Sajdah is ignored it will be a necessary precaution to complete the prayer and start it a new. If one recites one of those chapters because of forgetfulness and comes to know of the mistake before reaching the verse which necessitates prostration, one has to change it to another chapter, also, if one comes to know of the mistake after the verse

and goes to Sajdah for the same because of the mistake, his prayer will be valid if completed. If he comes to know of the mistake before going to prostration, according to Ihtiyat he only has to make a gesture for the Sajdah and complete the prayer, and he should go to have the Sajdah for the verse recited during prayer, otherwise, his prayer will be considered void. CR # 1065. If during a prayer one hears someone else reciting one of the verses for which Sajdah is necessary, he must make two Sajdahs for it according to a necessary Ihtiyat. If one hears these verses recited by a child who does not know good from bad or one who does not intend it to be Quranic recitation, according to a necessary Ihtiyat must do two Sajdahs and the same rule applies to hearing form radios etc. CR # 166. In the optional prayers it is allowed to recite one of the chapters mentioned before, regardless, it is recited alone or in addition to some other chapter. One should simply complete the Sajdah when the verse is read and continue his prayer from the position discontinued for the Sajdah. The same is true if one recites in an optional prayer only the verse which makes it necessary to have a Sajdah. CR # 167. The phrases Bismillah with which each chapter of the Quran starts, except chapter nine, is part of each chapter. Thus, it is necessary to read that phrase with the chapter to be recited in a prayer. When one decides to read the phrase for a certain chapter, he is not allowed to change it unless he reads the phrases again for the other chapter. If the phrase is read without deciding about the chapter following, it is necessary to read it again after deciding about the chapter to be recited. The same is true if one forgets the chapter which one had decided to read. If one is not yet certain of which of the two chapters he is going to recite, it will not be enough to read the phrase unless the chapter is specified. If at the beginning of a prayer one decides to recite a certain chapter or habitually always recites a certain chapter and by chance one recites another chapter, in this case, it is not necessary for him to recite the chapter again.

CR # 168. It is Ehtiyat not to recite two chapters together in an obligatory prayer although, apparently, it is allowed but it would be Makruh (abominable). In an optional prayer there is no harm to recite more than one chapter.

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CR # 169. Chapters No. 93 and 94 and No. 105 and 106 are considered to be as one chapter, thus, it is not enough to recite only one of them in a prayer. It is necessary to recite a pair of them together with the Bismillah in between.

CR # 170. The pronunciation in reciting the readings of the prayer must be correct pronunciation of the Arabic language and its rules. If anything required by the rules of that language is missed the recitation will be void. CR # 171. It is necessary to omit the letter ’A’ in the word Allah and Arrahman etc. when these words come in the middle of a reading and one wants to pronounce the letter in question with the sound of the letters before them. CR # 172 It is necessary not to omit the sound of the letter ’A’ like the one in | Eyyaka which if omitted will cause the reading to become void.

CR # 173. It Rak’ats of the silently in the *Bismillah’ can

is necessary for men to recite the readings in the two first morning, Maghrib and ’isha prayers aloud and to recite them prayers besides the ones mentioned above. Only the phrase be read aloud all the time.

CR # 174. To knowingly reverse the above order of reading will cause the prayer to become void. If it is done out of forgetfulness, and ignorance of the rule or the meaning of reading aloud and silent, the prayer will be valid. It would be an Ehtiyat and better to pray again if out of uncertainty one recites aloud or silently, thinking it to be acceptable. If one comes to know of the mistake, he must continue his prayer without going back to start the reading from the beginning. CR # 175. Women do not have to recite any reading in the prayer aloud. In the cases where it is necessary for men to recite silently they too must recite them silently, but regarding the readings to be read aloud, it is up to them to recite them aloud or not. CR # 176. The minimum loudness is enough for the above purpose. It is not allowed to make the loudness as shouting. For the silent rule of reading it is Ehtiyat that one should hear himself what he is reading. CR # 177. One who cannot pronounce the readings in the prayer correctly, if it is not possible for him to learn, it is enough to recite the prayer whichever way is possible. The same is true if there is no time for one to learn.

If one does not learn properly, it is necessary for him to pray in congregation, following the Imam. It is a Mustahab Ehtiyat for one who can recite correctly only part of the Fatihah to recite equal to the rest of the Fatihah from other

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parts of the Quran which he can read cprrectly. If one can recite nothing from Al-Fatihah, he must recite from other parts of the Quran, but according to a necessary Ehtiyat the reading should not be more than Fatihah. If he cannot read anything from the Quran, he should recite equal to the length of the Fatihah from the small phrases like Allahu Akbar or Subhanallah, according to a necessary Ehtiyat. If one knows how to read the Fatihah but cannot read any chapter to be read after it, if it is because it is not possible for him to learn, he is not required to read it. CR # 178. It is not an offense to recite while looking at the holy Quran or by the help of someone dictating. However, according to a Mustahab Ehtiyat one should only do this when there is no other way.

CR # 179, Even in the normal cases, it is allowed to change one’s mind when reading a certain chapter and instead start reading another even if he has read half of the first chapter. It is Ehtiyat not to do so when more than the two thirds of the first chapter has been read, but after the two thirds have been read, it is not allowed to change. If the chapter already started is either of No. 109 or 112, one is not allowed to change one’s mind and start reading other chapters or one instead of the other. If one wants to change his mind while reading other chapters and wants to read one of them he may do so even if he has already read more than the half of the chapter that he started first or because of some other reason he cannot complete the chapter that he has already started, even if it would be one of the two chapters already mentioned.

CR # 180. The Friday prayer is an exception to the above rule. Thus, one who has decided to recite chapter 62 in the first Rak’at and chapter 63 in the second Rak’at but because of a mistake starts reading some other chapter, he is allowed to give up the chapter he is reading, even if it would be one of the two chapters mentioned before, or he has already read more than the half of the chapter started. It is a necessary precaution not to give up chapters 62 and 63 and start another chapter instead, even if the second chapter is one of the chapters 109 or 112 unless there is an emergency, one should start one of the 109 or 112 instead, not other ones.

CR # 181. For the third Rak’at of the Maghrib or the two last Rak’ats of the prayers with four Rak’ats one is allowed to read either Al-Fatihah or the small phrases mentioned before once or preferably three times. One who prays in congregation, and is not the Imam should necessarily read the reading other than Fatihah.

CR # 182 It is not necessary that the reading in the third and fourth Rak’ats be the same reading. One may read Fatihah in one Rak’at and the reading mentioned above in the other Rak’at.

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CR # 183. One who for the third and fourth Rak’at’s reading decides to read Al-Fatiha or the reading mentioned above but by mistake starts to read the one other than the reading intended, according to Mustahab Ihtiyat he should start the one intended from the beginning. If one who usually reads Tasbihat by mistake reads Al-Fatihah he must give it up and read according to Mustahab Ihtiyat. CR # 184. If one forgets to recite the reading Tasbihate Arba in a certain Rak’at and comes to know of the mistake after assuming the position of the Rukv’, his prayer will be valid. If he comes

to know of the fact before

assuming the Rukuw’ position, even after bowing down, he has to go back to complete the reading. If one doubts whether the reading was completed or not, if the mistake has taken place before the Ruku’, one has to go back to complete the reading, but if it has taken place after the Ruku’, he does not have to go back.

CR # 185. For those saying a prayer which has to be prayed silently, behind the Imam, the readings other than Al-Fatihah in the third and the fourth Rak’ats are better than Al-Fatihah.

PREFERABLE MATTERS IN THE READINGS (a) One should say before starting Al-Fatihah. ’I seek protection from God against the condemned Satan.’ This should be said silently and ’Bismillah’ aloud in the first two Rak’ats of zuhr and ’asr prayers. (b) The reading should be recited in a sweet manner, not in a musical tone. (c) To have a pause after finishing each verse. (d) To keep a little interval between Fatihah and the chapter which follows it. (¢) To have a small interval between the chapter read and the Takbir after it, before Ruku’. (f) To say (in Arabic) after reading chapter 112,"Thus is my Lord Allah."(g) To say after Al-Fatihah,"It is only Allah who deserves all Praise."To recite certain chapters in certain prayers like ch. 78, 76, in the morning, ch. 87, 91, in the zuhr and ’isha ch. 110, 108 in ’asr and Maghrib. CR # 186. It is Makruh not to read ch. 112 in none of the prayers in twenty four hours or to read it without breathing in between. It is also Makruh to read the same chapter other than ch. 112, in both the first two Rak’ats of a prayer.

CR # 187. It is not an offense to read a certain verse again and again to weep.

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CR # 188. In the standing position when reciting the readings therein if one wants to move forwards or backwards he must stop reciting until he comes te a perfectly steady position; continue the recitation from where it was stopped There is no harm in moving one’s hands, or toes during the recitation. CR # 189. If during the recitation one is moved by the wind or other thing: and has lost his balance, it is a Mustahab Ehtiyat to read again whatever was read during the time he lost balance. CR # 190. In the readings which are required to be read aloud all the words and letters therein must be said aloud. CR # 191. One of the conditions necessary to observe in a prayer is to maintain continuity. Thus, when reciting a certain reading it is necessary to maintain proper continuity among the words and the letters of that reading.

CR # 192 One who has doubts about the sound of a certain letter or the way to pronounce it, he must not read it in two ways thinking that one or the other is certainly correct.

THE RUKU’ CR # 193. In each Rak’at of a prayer there is only one Rukuw’ whether the prayer is obligatory or optional except the prayer which becomes due because of some unusual happening, like an earth quake etc. Rukuw’ is one of the elements in a prayer. If Ruku’ is omitted or added, intentionally or mistakenly, the prayer will become void, except if one adds a Rukw’ in a congregation because of following the Imam, as it will be described later, and in optional prayers because of a mistake.

THINGS NECESSARY IN RUKU’ (1) To bow down in obedience to the order of Allah. In this position the palms must reach one’s knees. People of extra long or short hands do what the people of medium sized hands do. (2) To recite the Dhirk (a certain kind of reading) like (SUBHANA RABBI AL’AZIME WA BEHAMMADER) according to Ihtiyat,or this (SUBHANALLAH) three times, (2) or even any kind of Dhikr like ALLAHU AKBAR etc. would be enough if it is equal to three times ALLAHU AKBAR, for instance. There is no harm to say both No. 1 and 2 at the same time.

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CR # 194. It is necessary that the Dhikr should be in correct Arabic and according to the rules of that language. (3) To be steady in the Rukw’ position during the recitation of the necessary Dhikr. It is a necessary precaution to maintain steadiness even when saying the optional Dhikr therein. It is not allowed to say Dhikr before assuming the Rukw’ position in the proper way. (4) To stand straight after the Dhikr is said properly. (5) To be steady in a standing position after the Rukuw’. If it is not possible for one to assume a standing position after the Rukv’, he is not required to do so. CR # 195. It is Ehtiyat for one who loses balance in the Rukw’ position and stands up as soon as he reaches that position then comes to know of it, to complete the prayer and pray it again. CR # 196. When saying the necessary Dhikr, if one loses balance he must stop saying the Dhikr while he is moving and say it again when he is completely steady. If one says Dhikr while he is moving and if the movement is an intentional one, his prayer will be void, if it is because of a mistake, as a precautionary measure he should say it again. The followings are Mustahab in this part of the prayer: (a) Before bowing down for Rukw’ to say with the hands raised: Allahu Akbar. (b) To place the right palm on the right knee and the left palm on the left knee. (c) To push the knees backwards. (d) To stretch the neck forwards in level with the back. (e) To keep ones gaze between the feet. (f) To stretch the arms and elbows as wings to both sides. (g) To place the right palm on the right knee before the left palm. (h) For women, their palms should be placed on their thighs. (i) To say the second form of Dhikr mentioned before three times or more but end with an odd number, and say this after Ruku’: (Same’allahu Liman hamedah) (Allah hears those who praise Him). It is Makruh to bow down one’s head or raise it up during Ruku’, keep one’s arms attached to one’s sides, place the palms on

the side of the knees, read Quran in this position or place one’s palms under one’s clothes attached to one’s body. CR # 197. If one cannot assume the proper position for Ruku’ he may lean on something which may help him. If this is not possible, it is necessary to have this position in whatever way is possible for him and to make a gesture for it when standing straight before or after it. CR # 198. The duty of one who cannot assume the Ruku’ position in the norma! manner and whose only choice is to make gestures while standing or assume Rukw’ in a sitting position, would be to make a gesture for Rukw’ from the standing position instead of assuming the position for Rukw’ while sitting. However, it is better for him to pray twice once making a gesture for the Rukw’ while standing, and pray another prayer in which he assumes the

position for Rukw’ while sitting.

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CR # 199. The gesture for Rukw’ must be made with one’s head. In case, this

is not possible, one should open and close ones eyes.

CR # 200. It is necessary for one who has a hunched back and looks like a person in the Rukv’ position to straighten himself for the standing position during the recitation, bow for Rukw’ if it is possible even if it is with the help of something. If it is possible for him to raise his body some how such that if he bows down again for Rukw’ it could be considered Rukv’, he has to do so. If this is not possible, he must also make gestures for the Ruku’ with his head, if that is not possible, he should do with his eyes. CR # 201. A person assuming the Rukuw’ position while sitting has to bring his face down to his knees to keep his back as evenly straight as a line on the surface. If this is not possible for him, he too has to make a gesture for Rukw’. CR # 202 One who bows down for Ruku’ but instead because of forgetfulness sits down for Sajdah and comes to know of the mistake before reaching the proper position for Sajdah, he has to stand up, and assume Rukw’ position. The same is true if he comes to know of the mistake before going to Sajdah for the second time. In the second case, it would be a Mustahab Ehtiyat to say the prayer again after completing the first one. If he comes to know of the mistake after assuming the proper position in the second Sajdah, his prayer will be void.

CR # 203. When bowing down it must be intended to be for Rukuw’ only. If one bows down to pick something up from the ground, and decides to assume the Ruku’ position, this will not be enough; he has to stand straight and assume the position for Rukw’. CR # 204. In an emergency, such as sickness, shortness of time and other such cases, it is enough for the Dhikr in Rukw’ to say only once ’Subha Nallah’.

THE

SAJDAHS

In each Rak’at two Sajdahs are necessary and both of them together form an elemental part in the prayer, as mentioned before, such that adding or

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omitting them together will cause the prayer to become void, regardless, it is done willfully or mistakenly, while only one Sajdah does not have this effect on the prayer. Sajdah is the position in which one places his forehead on the ground in obedience to the order of Allah, and doing this twice is called two Sajdahs and an element in the prayer.

THINGS

NECESSARY

IN SAJDAH

(1) It is necessary to place seven parts of one’s body on the ground; the big

toes of both feet, both knees, the palms with all the fingers of the hands evenly touching the ground and the forehead. CR # 205. It is not necessary that the whole forehead must touche the ground. It would be sufficient for the Sajdah required if several parts of the forehead touch the ground and all together can be considered such that one has touched the ground with his forehead. Therefore, there is no harm to assume Sajdah on rosary beads which are made of raw

CR # 206. In the case of the big toes either their fronts or backs may be placed on the ground. It is Ehtiyat to place their sides on the ground. CR # 207. In the case of the forehead, this part of the body by itself must touch the earth while it is not necessary for the other parts to do so.

(2) To say the Dhikr therein after assuming the proper position. The Dhikr according to Ihtiyat should be three times Subhanall or Subhana Rabbi Al-a’la Wa Behamdeh once. (3) To be steady in the Sajdah just as described for Ruku’. (4) That the parts of the body to be placed on the ground during Sajdah must all be touching the ground when saying the Dhikr. If one of them is moved from its place, one must stop saying Dhikr until it takes its proper place again. (5) To sit upright in a steady position after the first Sajdah. (6) That the place of the forehead must not be higher or lower than the place of one’s feet. However, the difference between the forehead,the knees and toes, according to a strong reason must not be more than the width of four fingers held together side by side. CR # 208. If one places his forehead on a higher or lower place than that which is acceptable, he has to raise his forehead to place it on the proper place. In case if the difference is less the four fingers, according to a strong reason one must slide one’s forehead to a place which is level with the places of knees and toes and if this is not possible, according to a strong reason one must raise his forehead to find a level place, complete the prayer and do it all over again according Ihtiyat. The same is true if the place is not acceptable

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because the object is not of the category on which a Sajdah could be

considered valid.

If one assumes the position for the Sajdah with his

forehead on the proper object but not on the more virtuous one, he is allowed to slide his forehead from the one less virtuous to the more virtuous one. CR # 209. If one assumes the position for the Sajdah in a rush and one’s forehead springs back from the object on which Sajdah is to be assumed before saying any Dhikr or after it, if it is possible to control one’s head from coming back to the ground again, he must control it and sit up-right, and go for the second Sajdah. If he cannot control his head from going back again to the ground he must disregard the second time and continue as usual for the second Sajdah. CR # 210. If it is not possible for one to assume the proper position for the Sajdah he must bow down as far as possible and raise the object towards his forehead, and according to Mustahab Ihtiyat make the other parts of the body touch the ground in their respective places. If bowing down is not at all possible to the extent to be considered Sajdah, he must make the gesture with his head for the Sajdah, if this too is not possible, he must make the gestures with his eyes. If this is not possible, a gesture should be made with one’s hand with the intention of considering it for the Sajdah. In the latter case, it is a Mustahab Ehtiyat to raise the object to one’s forehead and place the other parts of the body in their respective places, although, in this case, it is not necessary to place them where they are supposed to be placed.

CR # 211. If part of the forehead is wounded such that it cannot be placed on the ground, one’s chin also can not be used, the parts which can be placed on the ground, if anyone left unharmed, must be placed on the ground even though it may require extra technique such as finding an object which has a cavity and allows one to fulfill what he intends to be done; the Sajdah has to be completed in the way described. If there is no place left on the forehead, the chin or either sides of the forehead and face one must do Sajdah by the front of his head.

CR # 212 When praying in the presence of those who do not like the idea oi placing one’s forehead on a certain object, a situation called Taqyah, there is no harm to have the Sajdah as the circumstances may demand, such as having Sajdah on the rug etc. it is not necessary to try to get rid of the situation by leaving the place for where one may find proper objects. CR # 213. If one forgets the two Sajdahs all together and comes to know of the mistake before assuming the next Ruku’, he has to go back to complete the forgotten Sajdahs. If he comes to know of the mistake after assuming the next Ruku’, his prayer will be void. If the forgotten part of the prayer is only

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one Sajdah, if one comes to know of it before the next Ruku’, he must go back, complete the Sajdah and continue the rest of the prayer. If he comes to know after the next Ruku’, he must simply continue the prayer, but after saying the ending phrases (Salam), he has to have the remedy for the forgotten Sajdah as it will be described later.

MUSTAHAB

MATTERS

IN

SAJDAHS

(a) To say (Allahu Akbar) before assuming the position for Sajdah and after the steady standing position after Ruku’. (b) To raise both hands when saying the above phrase. (c) To first place the two hands on the ground. (d) To place the whole forehead on.the ground. (e)’To place the top of nose on the ground. (f) To place the hands with the fingers side by side at both sides of the ears with the fingers facing the direction of Qiblah. (g) To direct one’s gaze to both sides of the nose. (h) To read before saying the Dhikr certain Du’as mentioned in the books with more details. (i) To say the Dhikr three times or seven times, but always end with an odd number. ( ) To assume the Sajdah on the earth or preferably soil. (k) That the place of one’s forehead and feet should be of the same level, but all parts must be placed on the ground. (I) To place when sitting upright between the two Sajdahs, the back of one’s foot on the sole of the other, the knees on the ground and thighs folded backwards. (m) To say when sitting upright ’Astagh Ferullahe wa Atubu Elayh’, "(I beg forgiveness from God and turn to him in repentance)." (n) To raise one’s hands whenever saying ’Allahu Akbar’. (0) To place one’s palms on the thighs when sitting upright. (p) To stretch ones arms as wings during the Sajdah position. (q) To raise one’s knees before the hands when standing up. (r) To place both palms on the ground when standing up. (s) To lengthen the Sajdahs by saying more Dhikrs and placing the palms on the earth. (t) To place the whole forehead on the ground. (u) Women should place Their Knees on the ground before their hands when assuming the position for Sajdah. (v) Women should place their elbows on the ground instead of stretching them like wings and try to touch the ground with their bellies. (w) Women should not stretch their limbs or raise their hips first when standing up. (x) It is Makruh to sit on both one’s heels by placing the front portion of the feet on the ground and raising the heels to use them as a chair. (y) It is Makruh to blow at where one places his forehead with one’s mouth even if it does not create the sound of two letters, otherwise, it is not allowed. (z) It is

Makruh not to raise the hands from the ground in between the Sajdahs. It is also Makruh to read Quran in the Sajdahs.

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CR # 214. It is a necessary Ehtiyat to have a steady sitting position after the second Sajdah before standing up for the second and fourth Rak’ats.

SUPPLEMENT The Sajdah which is obligatory because of reading the verses from any of the four chapters of the Quran, mentioned before, require almost none of the conditions for the prayer such as Wuzu, cleanliness of the body and clothe: or facing the direction of the Qiblah. It is only Mustahab to say some Dhiks in it like LA ELALLAHU

ELAHA IMANAN

ELALLAHU HAQQAN HAQOA WA TASDIQA LA ELAHA

LA ELAHA ELALLAHUL

‘UBUDIYATAN WA RIQAIt is not necessary to place all the other sv parts of one’s body on the ground besides the forehead.

CR # 215. There are no Takbiratul Ehram, Tashahhud or Salam endings phrases necessary in this Sajdah. CR # 216. It is necessary that the place where this Sajdah is going to be assumed be such that one can legally use it for the above purpose. This Sajdah must be started with an intention and preferably the Dhikr which one has to say in the Sajdah for prayer should also be said in this case. In the chapters containing verses No. 32, 41, 53, and 96, in almost all of the

copies of the Quran in the Arabic language, the verses mentioned above are marked. The following are chapters which contain verses that on being reac it would be Mustahab for one to have a Sajdah. These verses also are marked. These are chapters; No. 7, 13, 16, 17, 19, two places of 22, 24, 27, 38 and 84. CR # 217. One who reads the verses of the four above mentioned chapter: or hears others reading them both have to have the Sajdah as describec unless the one who hears them is praying, in which case, he on hearing it ha: to make a gesture for it and after the prayer assumes the Sajdah in the proper manner, according to Ehtiyat. CR # 218. It is Mustahab to have a Sajdah when giving thanks to Allah whenever receiving a blessing, when a trouble is over or when one recall: them, when fulfilling an obligatory prayer or an optional one, after any gooc deed and managing for a reconciliation between two parties. CR # 219. Only one Sajdah for the above said reasons would be enougl although it is better to have two Sajdahs with an interval in between, to plac

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both sides of the forehead on the ground and also the forehead starting with the right side and ending with the forehead, and then assume the second Sajdah. CR # 220. In the Sajdahs for the above reasons it is Mustahab to touch the ground with one’s elbow, chest and belly. It is also Mustahab after this Sajda

to touch one’s forehead with both palm and wipe one’s face and the front parts of the body with them. CR # 221. It is Ehtiyat to place one’s forehead in this Sajdah on the ground or on proper objects for the Sajdah for a prayer and to place all the seven parts of the body on the ground.

CR # 222. It is Mustahab to have a Sajdah-in obedience to Allah. Sajdah in fact is the greatest act of worship. It is narrated that the position in the Sajdah is the nearest position to Allah that a person may have. It is Mustahab to have a long Sajdah. CR # 223. It is not allowed for one to have a Sajdah for the others besides Allah, regardless, the person is an infallible one or not. What the Shias do,

when visiting the Shrine of one of the Imams or the Prophet, has to be in thanks giving to Allah for His favors of enabling them to have the opportunity to visit the Shrines.

TASHAHHUD CR # 224. Tashahhud is necessary only once in a prayer of two Rak’ats and this is after the second Sajdah in the second Rak’at. In the prayers of three or four Rak’ats it is necessary to say Tashahhud once more after the second Sajdah in the last Rak’at. CR # 225. Tashahhud is a non-elemental obligatory part of the prayer. CR # 226 If Tashahhud is given up, intentionally, the prayer it is done mistakenly, one has to assume the proper position complete it. If one comes to know of the mistake after the has to manage for the remedy of the same after the whole completed.

becomes void. If for the same and next Ruku’, one prayer has been

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THE FORM OF TASHAHHUD: ASHHADU AN LA ELAHA ELLALLAHU WAHDAHU LA SHARIKA LAHU WA ASHHADU ANNA MUHAMMADAN *7ABDUHU WARA SULUH ALLAHUMMA SALLE ’ALA MUHAMMAD WA ALE MUHAMMAD. CR # 227. When saying Tashahhud it is necessary to have an upright steady sitting position, say it in Arabic according to the proper rules of that language and maintain proper continuity among the letters and words therein. CR # 228. One who does not know how to say Tashahhud properly and has no one else to teach him, he must say it in the best way possible for him, provided, it can be considered Tashahhud (testimony). If this also is not possible, it is a necessary Ehtiyat to say its translation, if this too is not possible, he may say any other Dhikr equal in length to Tashahhud. CR # 229. It is Makruh to sit on one’s heels during Tashahhud using them as chair by supporting the portion of the toes of the feet on the ground and raising the heels as a chair under the thighs. CR # 230. (a) It is Mustahab to place the back of one’s foot on the sole of the other foot with the knees on the ground and the thighs folded back on the leg. (b) It is Mustahab before saying Tashahhud to say (Al-hamdu Lellah). Praise be to God. (c) The hands should be placed on the thighs with the fingers side by side attached to each other. (d) One’s gaze should be fixed on one’s lap when saying Tashahhud. (e) In the sitting position during Tashahhud, women

should raise their knees from the ground, with their

thighs attached to their bellies, and sit supported by their legs.

SALAM (the ending phrases) CR # 231. Salam is necessary only once in each prayer at the end. When Salam is said all that is prohibited for one to do or say during prayer becomes permissible. The forms for the phrases are: (1) ASSALAMU ’ALAYNA WA "ALA

’EBADELLAHESSALEHIN.

(2) ASSALAMU

’ALAYKUM

and

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RAHMATULLAHE

WA

BARAKATUH.

CR # 232. A prayer could be ended by saying any of the above phrases. If one says number 1 first, number 2 would become only preferable to say. If number 2 is said first, number 1 will not even be preferable to CR # 233. This phrase (Assalamu ’Alayka Ayyuhan Nabbiyu Wa Rahmatullahe Wa Barakatuh) is not part of Salam and prayer cannot be ended with it. It is only Mustahab to say it. CR # 234. It is necessary to say Salam in the proper Arabic language and observe all the conditions about the sitting position as mentioned for Tashahhud and deal with the difficulties about reading just in the way described for Tashahhud.

CR # 235. If anything invalidating Wuzu takes place before completing Salam, it will cause the prayer to become void according to a necessary Ihtiyat. The same applies if anything else invalidating the prayer takes place before the completion of salam. CR # 236. If one forgets to say Salam and something invalidating the prayer takes place, his prayer will be considered valid. It is Ehtiyat to pray it again. CR # 237. If one forgets to have both the Sajdahs and says Salam, he is only required to pray that prayer again, if for either intentional or mistakenly reason something invalidating the prayer takes place. Otherwise, he has to have both the Sajdahs and say thereafter Tashahhud and Salam. After Salam, he has to have two other Sajdahs because of his saying Salam at an improper time.

PROPER ORDER CR # 238. It is necessary to maintain proper order in the prayer among its

elemental and non-elemental parts just in the way they have been described in the previous rules. If any of the obligatory parts are intentionally completed before or after their proper place, the prayer will become void. If a disorder takes place not because of one’s short comings but because of a mistake or out of ignorance, if it is a non-elemental part, one has to manage for the same in time or continue the prayer if its proper time has gone, such

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as when one assumes an elemental part which is next to the non-elemental part missed. Adding on or omitting of elemental parts cause the prayer to become void regardless of the reason.

THE CONTINUITY CR # 239. One of the conditions necessary to maintain in a prayer is continuity in the acts and readings therein. The interval which according to the followers of the law, can be considered as destroying the form of a prayer, will be considered as invalidating a prayer. An interval in the above sense will invalidate a prayer, regardless, it takes place for some intentional ane. or because of a mistake. A longer Rukw’ or Sajdah is not an interval as such.

QUNUT CR # 240. Before assuming the position for Rukw’ in the second Rak’at of each prayer or the first, if the prayer has only one Rak’at, one should in a ‘standing position raise both hands in front of his face, both palms side by side with fingers open and attached to each other say some Du’a. This act is called ?Qunut’. CR # 241. Qunut is Mustahab in all obligatory and optional prayers.

CR # 242 The reason for its being Mustahab is stronger for the prayers in which certain readings are to be said aloud, especially, the morning, Friday and Maghrib prayer and all the optional prayers are of only one Rak’at.

CR # 243. In the Friday prayer there are two Qunuts; one before the Rukw’ of the first Rak’at and the other after the Rukw’ of the second Rak’at. CR # 244, In the Id prayer there are five Qunuts in the first Rak’at and four Qunut in the second Rak’at. CR # 245. In the prayer for an unusual natural event there are two Qunuts; one before the fifth Rukuw’ of the first Rak’at and the other before the fifth Rukw’ of the second Rak’at or five Qunuts one before each second Rukuw’, as it will be explained later.

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CR # 246 In the Witr prayer, the last Rak’at of the night prayers, there are two Qunuts; one before the Rukw’ and one after it. However, the second

Qunut is not free from objection.

CR # 247. It is Mustahab to say certain Du’as after the Rukw’ in the Witr prayer. CR # 248. Also it is Mustahab to say in the Qunut before the Rukw’ the Du’a of ’Fraj’. (Name of certain Du’a)

CR # 249. In the Qunut before the Rukw’ one should ask forgiveness from Allah for forty people alive or dead. CR # 250. In this .Qunut one should say seventy times: ASTAGHFIRULLAH WA ATUBU ELAYH, (I ask forgiveness from Allah and turn to Him in repentance). CR # 251. There is no need to say some special prayer or Dhikr in a Qunut. Any Dhirk, prayer, praises of Allah or phrases in thanks giving to Allah, like SUBHANALLAH once, three or five times will be sufficient. It is better to say in Qunut what is narrated from the Imams.

CR # 252. It is Mustahab to say Takbir before starting a Qunut with the hands raised then lowered to their usual positions and raised again to say Qunut. CR # 253. It is Mustahab to say Qunut aloud except one who prays in congregation in whose case it is Makruh that the Imam would hear his voice.

CR # 254. If one forgets to say Qunut before bowing down for the Rukw’, if he has not yet reached the proper position for the Rukw’ he should go back and say Qunut. If he comes to know after Ruku’, he may say it in the standing position after Ruku’. If he comes to know of his forgetfulness after assuming the Sajdah position, he should say the remedy for the Qunut after Salam in a sitting position facing the direction of Qiblah. CR # 255. If one, intentionally, does not say Qunut, he does not have to say the remedy for the same after Salam.

CR # 256. Apparently, a prayer or Dhikr improperly pronounced or prayers in languages other than Arabic would not be enough for the required Qunut, although it does not harm one’s prayer.

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TA’QIB (Prayers that should follow a Prayer) CR # 257. Soon after a prayer is completed, that is, the ending phrases have been said, Allahu Akbar should be said three times raising the hands to both sides of one’s face. In Ta’qib the best is the rosary of Fatima (a.s.) daughter of the Prophet (peace be upon him and his family):(a) ALLAHU AKBAR thirty four times.

(b) AL-hAMDU LELLAH thirty three times. (c) SUBhA NALLAH thirty three times. The following are the prayers in Ta’qib:

(a) Al-Fatihah, (b) Verse 256 CH. 2 (c) Verse 27 Ch..3 and Verse 19. Ch. 3.

SECTION NO. 8 THINGS INVALIDATING A PRAYER (1) Hadath which means discharge from the urine and feces outlets because of a natural demand or having sexual intercourse. A discharge which may take place, intentionally or mistakenly, also invalidates a prayer. (2) To turn the whole body more than ninety degrees away from the direction of Qiblah because of a mistake or because one has been forced by the winds etc. If the mistake takes place because of one’s unawareness and one does not come to know of it until after the time for the prayer has expired, he does not have to manage the remedy for that prayer. If he comes to know of the mistake when there is still enough time, he is required to pray again. The above rule is also true of turning one’s face more than ninety degrees from the direction of Qiblah. (3) Whatever destroys the proper form of the prayer. The form is that which people of the law, the jurists, who know how far the required form of a prayer can exist and when it is destroyed, maintain for a prayer. That form can be destroyed by one’s starting to dance, clap or do some other work such as sewing or knitting etc. regardless, it is done intentionally or

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mistakenly. There is no harm in moving one’s hand, pointing to something, leaning down to pick up something, walking a little to some place without deviating from the direction of Qiblah, killing a snake, scorpion or picking up a baby from the ground and giving him milk such other things which do not destroy the form of a prayer. CR # 258. To start a prayer within a prayer causes the prayer to become void. However, the second prayer will be valid if this is done by mistake. The same applies if the first prayer is an optional one. If the first prayer is an obligatory one and one comes to know of the mistake before assuming the first Ruku’, one is required to complete the first prayer unless the time for the second one is about to expire, in which case, the second prayer has to be completed first. If one comes to know of the mistake after assuming the position of Rukuw’ in the first prayer, he has to complete it as if it were the second prayer unless the time for the first prayer is about to expire, in which case, he must give up the one he is praying and start praying the first one. | CR # 259. If one doubts whether something destroying the form of the prayer took place or not, such as a long silence etc., it is Ehtiyat to complete that prayer and pray the same again. (4) To talk intentionally, even if it would be composed of two letters or one letter which has a meaning like the Arabic form of the letter ’Q’, an imperative form of the verb taken from the root ’Wiqaya’ meaning to save. Based on a precautionary measure, even one letter of the alphabet, spoken in the prayer, which has no meaning, also invalidates the prayer. CR # 260. Coughing, and sighing, however, do not cause the prayer to become void.

CR # 261. It makes no difference whether the talk causing the prayer to become void is addressed to someone or not, one is forced to talk or has done it intentionally out of necessity. It is not an offense if one has mistakenly spoken during a prayer or has thought that he has already finished the prayer. CR # 262 There is no harm to say any prayer, Dhikr or read Quran any time during a prayer except the four chapters mentioned before, and according to Ihtiyat one should pray in other than Arabic language. Praying for an illegal purpose even though it may not invalidate a prayer, but it is Ehtiyat to pray the prayer again.

CR # 263. If a prayer is not addressed to Allah but rather to some people like saying, may Allah forgive you; there is a strong reason that it is not allowed.

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CR # 264. A person praying is not allowed to say, may Allah bless you when he hears some one sneezing. CR # 265. It is not allowed for a person praying to be the first to pronounce the Islamic form of Salute which is (SALAMU ’ALAYKUM) meaning peace be with you. CR # 266. It is necessary for one praying to answer a ’Salam’, the Islamic form of Salute, when another person pronounces it. If the person praying does not answer a ’Salam’ when he is praying, his prayer will be valid, even though he has committed a sin. CR # 267. It is necessary that the answer to a Salam’ during a prayer be of the same form as that pronounced by the other person. If the other person for instance, says "SALAMU ’ALAYKUM’ the answer must also be "SALAMU ’ALAYKUM’. In the cases other than during prayer the answer should be in an even better form such as adding "WA RAH MA TULLAHE as BARA KATUHW’ (His mercy and blessings) to the phrase mentioned above.

CR # 268. If Salam’ to a person praying is pronounced in an incorrect form and it can not be called ‘salam’, it is not necessary to answer, but it is Ehtiyat to answer in the proper way. CR # 269. If the person pronouncing ’Salam’ to the praying person is a child who can discern good from bad or is a woman, still it is necessary for the person praying to answer them.

CR # 27a It is necessary to answer a Salam’ such that the other person must hear it, regardless, it is during a prayer or in a normal situation, unless the person pronouncing Salam’ is a deaf or is far away, in which case, it would be enough to answer just the way people usually do. CR # 271. If a salutation or greeting would be in a form other than the one mentioned above, it is not necessary to answer it during prayer, although it is Ehtiyat and better. If the person pronouncing a greeting other than the proper form intends to get a response from the person

praying, it is a necessary Ehtiyat to answer, intending thereby a form of prayer addressed to Allah. CR # 272 It is Makruh to say Salam’ to a person who is praying.

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CR # 273. If one says ’Salam’ to a group of people and one of them answers, it would be enough. If one of the group is a person praying, it is not allowed for him out of the group to answer, even if the answer is given by a child who can discern good from bad or the person praying doubts whether the person specially addressed ’Salam’ to him or not and no one from the group answered him. CR # 274. If Salam’ is repeated several times to the person praying, only one answer would be enough. If after answering a Salam’ another comes, it is necessary to answer that one too, regardless of being in a prayer or not. CR # 275. If Salam’ is said to either one of two people and neither of them has been specified, none of them would be obliged to answer. In such a case, if one of the two people is praying, it is not even permitted for him to answer.

CR # 276. If two people say ’Salam’ to each other at the same time, it is necessary for both of them to answer each other as a necessary precautionary measure. XS

CR # 277. If one says ’Salam’ to another person just as a joke, there is no need to answer him. CR # 278. If one says only ’Salam’ without the next word which is "ALAYKOM, it is Ehtiyat for a person answering during a prayer to answer this too. CR # 279. If the person praying doubts that in which form the ’Salam’ had been, he must answer it in either one of the four common answers: (1) SALAMU ’ALAYKUM. (2) ASSALAMU ’ALAYKUM. (3) ’ALAYKUM SALAM. (4) ’ALAYKUM ASSALAM.

CR # 280. It is necessary to answer a Salam’ without delay. If it is delayed, because of disobeying the law or forgetfulness until it can no more be considered the proper answer to the ’Salam’, it is not necessary to answer a delayed answer. During prayer this is not even allowed. If one doubts whether the delay will be considered such that the answer can no longer be called a proper answer or not, it is necessary, according to Ehtiyat, to answer even if it is during prayer, although in the latter case it is Ehtiyat to answer and pray the prayer again after the first prayer has been completed. CR # 281. If one is forced to talk during a prayer to avoid danger, he may talk but his prayer will be void. CR # 282. If one mentions Allah in a prayer or reads some Du’a or reads Quran for the prayer, but intends thereby to warn others of the orders and

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prohibitions of Allah, his prayer will not be void. but if he only intends warning the prayer will be void even if he intends Dhikr thereby also according to Ihtiyat. If he has intended thereby no prayer or Quran but rather his tongue slipped to say them, his prayer will be void. (5) To laugh aloud. There is no harm in laughing because of forgetfulness or smiling. CR # 283. If one feels strongly ticklish and is about to burst into laughter but controls himself during a prayer and because of it his face turns red, he should pray again according to Ihtiyat after completing that prayer. (6) To intentionally weep aloud, even, according to a necessary Ehtiyat, if it is without an expressed sound but it is for a worldly reason. There is no harm to weep for a reason that originates from the life hereafter such as one’s concern about one’s attitude towards Allah, even though it is related to one asking Him for his worldly needs or the reason behind one’s weeping would be Imam Hussayn’s cause which is also related to the life hereafter. Also there is no harm in weeping during prayer if it is because of a mistake. if one is forced to weep and is unable to control himself, his prayer will be void. (7) To eat and drink, even though it may be very little in quantity, it destroys the proper form of the prayer. If the form of the prayer is not destroyed, it would be difficult to consider a prayer void in this case. There is no harm to swallow dissolved sugar in one’s mouth or the remaining pieces of food. CR # 284. If one during a prayer mistakenly eats or drinks and this destroys the proper form of his prayer, his prayer will become void, otherwise, his prayer will be valid.

CR # 285. To the above mentioned rule about eating and drinking the following is an exception; One who is thirsty when he is saying the Witr prayers which is part of the night prayers and who has already decided to fast the next day, if the night is about to end, if water is available near by, he is allowed to drink, continue the prayer from where he discontinued and complete the rest of the prayer. It is Ehtiyat that this rule should be confined to the Mustahab Witr, not to the Witr which has become obligatory because of a vow or so. This only applies to drinking during prayer, not to eating. (8) To fold one’s hand during prayer in the standing position when reciting Al-Fatihah and the chapter from the Quran that one may select. "Takfir’, or folding one’s hands in prayer by placing both hands on one’s chest or belly with the palm of one hand on the back of the other, is an invalidating act to the prayer if it is considered part of the prayer. If it is not considered part of the prayer but one only does it as a sign of respect, if being done, it would be necessary to complete the prayer and pray it again even Takfir is not done just the way they do it. The act itself is illegal in prayer if it is done intentionally. If it is done because of forgetfulness or because the situation

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requires one to do so or is done not considering it as part of the prayer or not because of respectfulness but to scratch one’s body etc., it will not be an offense.

(9) To say ’amin, intentionally, after reading Al-Fatihah in any condition or manner. It invalidates the prayer when it is considered as part of the prayer or is not considered to be a form of prayer to Allah. If it is said mistakenly or because the situation requires one to say it, there is no harm in it. Sometimes it becomes necessary to say it, if it is not said, one would be considered to have committed a sin, however, his prayer will be valid. CR # 286. If a doubt arises after the ending phrases Salam’ have already been said whether something invalidating the prayer took place during the prayer or not, in such a case, one must pay no attention to his doubt. CR # 287. If one knows that he slept intentionally but doubts whether he slept unawarely before completing a prayer or after it, he must consider his prayer valid. If he thinks that he slept intentionally during the prayer to invalidate the prayer, in this case, it is necessary for him according to Ihtiyat to pray that prayer again. The same applies if one knows that sleep forced him to fall asleep but doubts whether this took place after the prayer or in the middle of the prayer, like the one who finds himself in a Sajdah position and cannot figure-out whether it is the Sajdah for thanks-giving after the prayer or is the Sajdah from the middle of the prayer. CR # 288. One is not allowed to discontinue an obligatory prayer unless there is some reason related to the hereafter or this life like protecting one’s © properties, or some respectable life, even possibly anything of same importance to someone, could be considered as a reason to discontinue the prayer, that in case, one missed it, one would not face great difficulties. For

instance, one who prays in a Mosque and during prayer comes to know that something unclean is there, he is allowed to discontinue the prayer and remove the uncleanliness first from the Mosque. There is no harm to discontinue an optional prayer any time even though it would be the one which one prays because of a vow. In this case, it is Ehtiyat not to discontinue, and it is a Mustahab Ehtiyat not to discontinue an optional prayer at any time except when one is allowed to discontinue an obligatory prayer. CR # 289. When it becomes necessary to discontinue a prayer and one does not do so but instead continues, his prayer will be valid although he has committed a sin although it is a Mustahab Ihtiyat to pray again.

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PRAYER

(a) To turn one’s face or eyes a little from the direction of the Qiblah. (b) To play with one’s beard, hands or head. (c) To read two chapters in one Rak’at. (d) To blow the place where one places his forehead during the Sajdah with one’s mouth, spitting or blowing one’s nose. (e) To crack one’s fingers, stretch one’s limbs or yawning. (f) To prevent urine, feces and gas. (g) To be lazy or drowsy. (h) To place one foot on the other when standing. (i) To entangle one’s fingers. ( ) To wear tight socks. (k) To talk to oneself in his mind. (I) To look at the engraving on one’s ring or at a book or some written material. (m) To intentionally place the hand on the hips. CR # 290. It is Mustahab when mentioning the name of the Prophet or hearing others mention his name to say this ALLAHUMMA SALLE ’ALA MUHAMMAD

WA

’ALE

MUHAMMAD,

’Allah, have

blessing upon

Muhammad and his family’. This is Mustahab even if one is praying, regardless, his very name is mentioned or one of his tittles, be it a noun or pronoun referring to him. CR # 291. If his name is mentioned several times it is Mustahab to say the above mentioned phrase as many times as his name is mentioned. If one says

"

the above mentioned phrase as part of the Tashahhud in a prayer and at the same time hears someone mentioning the Prophet’s name, he should say the phrase as many times as is required besides that which he has to say for the prayer. CR # 292 The preferability of the above recommendation requires an immediate action. However, there is no fixed form for the expression to be expressed after mentioning or hearing others mentioning the name of the Prophet, but it is necessary to mention his family therein too.

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CR # 293. Any intentional omission of any obligatory part or condition of the prayer will cause the prayer to become void, even if it is one letter, or the sound of a letter in the readings or the Dhikr. The same is true of adding some words or actions to the elemental or non-elemental parts of the prayer, regardless, it coincides with the part of the prayer or not or whether one had intended to do it from the beginning or decided about it in between.

CR # 294. An addition in the non-elemental parts of the prayer will not be

considered an addition unless one intends to consider that addition as part of

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the prayer. Thus, if one moves his hands to scratch his body, for instance, but does not intend it to be part of the prayer this will not harm his prayer, unless it destroys the form of the prayer. CR # 295. If a part is mistakenly added, if that part would be Ruku’ or two Sajdahs, the prayer will be void, otherwise, it will be valid.

CR # 296 If one omits a part out of forgetfulness and comes to know of the mistake before the time for the same has passed, he is required to complete that part and continue onwards. If the proper time for the missing part has already passed, if that part is one of the elemental ones, his prayer will be void. If it is not of the elemental ones, his prayer will be valid. In this case, he need only to manage for the remedy of only one Sajdah or Tashahhud. To manage for the remedy for the Tashahhud is only based on an Ehtiyat.

CR # 297. The proper time for a part expires when: (a) One has already entered the next elemental part, such as one who forgets to read Al-Fatihah, a certain Dhikr, or part of Al-Fatihah or Dhikr, or forgets the proper order and comes to know of the mistake when he is already in the next Ruku’. In the above case, he must continue his prayer from the position of Rukw’ onwards, If he comes to know of the mistake before assuming the position for the next Ruku’, he must go back to complete the missing part and continue from there by the right order. If the missing part is an elemental one in the prayer, such as the two Sajdahs or Ruku’, and one comes to know of the mistake only after one has already assumed the next Rukw’ or Sajdah, his prayer will be void. If one comes to know of the mistake before assuming the position for the next Rukw’ and the missing parts are the two Sajdahs, he has to go back to complete the missing Sajdahs. If the missing part is only one Sajdah or the Tashahhud or part of the Tashahhud or the order between them and one comes to know of the mistake after he has assumed the position for the next Rukw’, he is required to simply continue his prayer to complete it. If he comes to know of the mistake before assuming the next Ruku’, he must go back to complete the missing parts and continue therefrom by the proper order. In some of the above cases one is required to have two Sajdahs called the ’Sajdahs for a mistake’. This will be explained later. (b) That one has come out of the state of prayer. If one forgets all together to have the two Sajdahs and comes to know of the mistake when he is already out of the state of prayer and has also already done things invalidating the prayer both being done, intentionally or mistakenly, his prayer will be void. If he comes to know of the mistake before doing anything invalidating the prayer, he must go back to have the two Sajdahs after which he must say *Tashahhud’ and ’Salam’, the ending phrases. After this he will have to have

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| two Sajdahs for mistakenly saying Salam’. The same rule applies when one forgets only one Sajdah or Tashahhud or part of the Tashahhud, unless one comes to know of the mistake after having done something invalidating the prayer, in which case, his prayer will be valid. The only thing that he is required to do is to manage for the remedy of the missing part and have two Sajdahs on account of his unintentionally saying Salam’. (c) That one has missed the proper position which is necessary in a certain part, such as missing the Dhikr or the steady position in Ruku’ or in the Sajdahs until one assumes the next part, in such case, he must continue his prayer by going back to complete the missing part. The same applies if one does not correctly place the parts of the body to be placed on the ground during the Sajdahs. If one misses the standing position during the recitation of Fatihah or Dhikr in the third and fourth Rak’ats and comes to know of the mistake before assuming the position for Ruku’, he is required to go back to complete the missing part.

CR # 298. One who forgets to stand upright after Ruku’ and bows down for Sajdahs instead, or has already assumed Sajdah, he must continue his prayer without going back to complete the missing part. It is a Mustahab Ehtiyat to go back for the missing part if he has not yet assumed Sajdah, or say the prayer again if he comes to know of the mistake after assuming Sajdah. If he comes to know of the mistake after the second Sajdah, he is not required to do anything. The same applies if he comes to know of the mistake during the second Sajdah. If one comes to know of the mistake before assuming the second Sajdah, one should go back to complete it. If one places his forehead in Sajdah on a place which is higher or lower than necessary, or on an object which cannot be legally used for the purpose or which is unclean and comes to know of the fact after raising his head from the ground, he is required to go back to complete the Sajdah properly.

CR # 299. If one forgets Ruku’ and comes to know of the mistake only after the two Sajdahs, one is required to pray again. If he comes to know of the mistake before assuming the second Sajdah, it would be almost acceptable for him to go back to complete the missing part and thereafter complete the prayer. It would be a Mustahab Ehtiyat to pray the prayer again. CR # 300. It would almost be acceptable for one who has missed two Sajdahs and doubts whether they were from the first or second Rak’at, if he comes to know of the fact after assuming the next elemental part, to manage later for the remedy of the two Sajdahs. If one comes to know of the fact before assuming the next elemental part, if he thinks that perhaps both Sajdahs were from the second Rak’at, he must go back to complete the missing Sajdahs and continue his prayer, but if he knows that one is from the previous Rak’at and one from the second Rak’at, he must go back to complete the Sajdah missing from the second Rak’at and later manage the remedy for the missing

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Sajdah from the previous Rak’at. In all the three cases, it is a Mustahab Ehtiyat to pray the prayer again. CR # 301. If one comes to know that he has missed two Sajdahs from two Rak’ats one from each, he is required to manage for the remedy of the two Sajdahs after Salam’ of the prayer, even though he knows that they were missed from the first two Rak’ats.

CR # 302 If one forgets to say Salam’ and comes to know of the mistake before doing anything invalidating the prayer, he simply has lo say them and his prayer will be valid. If one comes to know of the: mistake after doing things that invalidate the prayer, his prayer will still be valid, although it would be a Mustahab Ehtiyat to pray it again. CR # 303. One who forgets a whole Rak’at from a prayer or even more, if he comes to know of the mistake before saying the ending phrases he must go back to complete them and his prayer will be valid. If he comes to know of the mistake after Salam’ and before doing anything that invalidates the prayer, his prayer will be void. CR # 304. If one mistakenly loses the balance necessary to maintain during the readings or Tashahhud, he must continue his prayer and it will be considered valid. However, the Mustahab Ehtiyat should not be ignored to retain the missing part with an intention of a general nature, if it is missed from the Rukw’ or Sajdah and one comes to know of the mistake before getting up from such position; he should go back to assume the position required.

CR # 305. If one forgets to maintain the silence required in the readings and the Dhikr in the prayer, one does not have to pay any attention to it, but instead must continue his prayer, regardless, he comes to know of the mistake during those parts or after them. The precept of the one who is ignorant of the rule is the same as the one who forgets to maintain the rule.

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PRAYER

For a better understanding of the doubts arising in the prayer one should first have in mind the following classification of the parts of a prayer. (a) Elemental parts, (b) non-elemental parts, (c) conditions, (d) Rak’ats, (e) and the whole prayer.

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CR # 306. One who doubts whether he has prayed or not has to pray, if there is still time, but if the time for the prayer has already passed, he does not have to pay any attention to it.

CR # 307. Zan, the heavier side of the knowledge of something, has the same effect to the acts in the prayer as that of the doubts. For instance, if one doubts whether the time for a prayer still exists or not, one must assume that the time still exists. CR # 308. If one doubts whether he completed a condition or act in the prayer when the time for that prayer has already gone, he does not have to pay any attention to it. CR # 309. If one doubts about saying Salam’; if the doubt is about the correctness of his Salam’, he does not have to pay any attention to it. The same applies to one’s doubts about the very existence of Salam’ when he has already done things invalidating the prayer, even if he did them mistakenly. In the latter case, if his doubt came into being before doing anything that invalidates the prayer, he has to go back and say ’Salam’. CR # 310. A person who doubts very often, in the prayer, does not have to pay attention to his doubts, regardless, they are about the number of the Rak’ats in the prayer, about the acts therein or about its conditions. He must simply assume that the doubtful matters have come into existence, provided, its existence does not invalidate the prayer such as one’s doubt about saying four or five Rak’ats or assuming one Rukw’ or two. Since the assumption of the existence of something extra and of an elemental nature will be considered as invalidating the prayer, he just has to assume that no such thing has taken place.

CR # 311. In the case of a person who very often doubts in prayer, if his condition as such is because of a certain reading, an act, time or place, the rule of paying no attention will be true of that particular thing alone, not of all the other circumstances. CR # 312. The criteria to discern whether someone doubts very often or not is common sense. If one doubts in three consecutive prayers once in each, he will be considered as the one who often doubts. His doubts must not be because of some accidental factor such as fear, hunger or anxiety, causing disturbance in his mind.

CR # 313. If one because of the rule deals accordingly with a certain doubt and later discovers that a mistake, in fact, occurred, he must deal with it as he

would do in the light of the rule about it. Thus, if it invalidates the prayer, he has to pray again, if it is possible to manage, he has to manage for the same

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according to the requirements of the rule or manage for the remedy of the same if required. CR # 314. It is not necessary for a person who doubts very often to manage for some means to indicate the number of the Rak’ats in a prayer.

CR # 315. It is not allowed for a person who doubts very often in prayer to go back and complete the doubtful act or reading in the prayer, for then his prayer would be considered void. CR # 316. If one doubts whether he could be classed as one developing doubts very often or not, he is not required to pay any attention to his doubts like the person who often doubts and then doubts whether the condition of developing doubts has gone or is still there. CR # 317. If the Imam in the congregation doubts about the number of the Rak’ats of a prayer, he may refer to any of the people praying behind him, regardless, of their characters and sex. In the same way, if a person praying behind an Imam doubts, he also may refer to the Imam who does not have any doubts. The zan of the above people will be considered as certainty. If the people praying behind, themselves have doubt, the Imam cannot refer to them. If some of them have doubts and the others are certain, the Imam may refer to one who have no doubt. The above rule also applies to the other parts and acts in the prayer besides the number of the Rak’ats therein. CR # 318. Similar to the one who very often doubts is the one who is disturbed by anxiety or temptation. Whenever developing a doubt in the prayer, he is required to assume that he has completed the work which he was supposed to do, even if there is still enough time. For instance, if he doubts about praying zuhr and ’asr in a time which is only for ’asr, he has to assume that zuhr has already been prayed and he has to pray ’asr alone. If he doubts about praying zuhr when he is praying ’asr, he has to change his intention to zuhr to complete it as zuhr. CR # 319. In the optional prayers one is allowed to assume the lesser number if the doubt is about the number of the Rak’ats or the greater, provided, this does not lead to the invalidation of the prayer, if so, he should assume the lesser side. CR # 320. In all the prayers whenever one doubts whether one had completed a part of the prayer properly or not, when he has already assumed the next part, he must pay no attention to such doubt; such as the doubt about Takbiratul Ehram when one is reading the Fatihah; about the Fatihah when one is reading the chapter about any verse of the two later ones; when one is reading the next verse or about the Ruku’; when one is in the Sajdah

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258 eS ae and so on. If the doubt arises when one is about to assumed the next part, it is necessary according to Ihtiyat to go back and complete that part, such as the doubt whether the Takbiratul Ehram was said or not, when one has not yet started reading the Fatihah and so on, however, reading the verses it is a

Mustahab Etiyat to go back and read the doubtful verse with the intention of Qurbat, seeking nearness to Allah.

CR # 321. One condition about the doubtful parts is that both must be obligatory parts. If the next part is not obligatory such as the doubt about Al-Fatihah when one is saying Qunut, it is necessary to go back and read the doubtful part.

CR # 322 If a doubt arises whether a certain part was done properly or not, and this is when one has already completed it, again, one must pay no attention to it, regardless, he has assumed the next part or not; such as

doubting whether Takbiratul Ehram was said properly or not, when one is already through with it. In the same way one does not have to pay any attention to the doubtful part when one doubts whether a word or letter of some part was completed properly or not.

CR # 323. If the doubtful part is completed in due time, then it is discovered that it was done also once before, if the part is an elemental one, the prayer will be considered void, if not, it will be valid. If the doubtful part is not completed until the proper time for the same is over, and it is discovered that in fact that part was not done at all, if it is possible to manage the same it must be done, otherwise, the prayer will be valid unless that part is an

elemental one. CR # 324. During a part of the prayer if one doubts whether he had any doubts about the previous parts or not, he does not have to pay any attention to such doubt. The same applies if one doubts whether he made some mistake in the previous parts or not, and he is already out of the proper place for that part. If the latter case takes place when one is still in the time and

place for the doubtful part, he has to go back and complete it.

CR # 325. If one doubts about the number of the Rak’ats of the prayers, he must,first of all, think about the situation until he finds out the exact case. If the doubt takes place in the prayers of only-two Rak’ats or three Rak’ats or

in the first two Rak’ats of those consisting of four Rak’ats that prayer will be considered void. If the case is other than the above ones, and one is certain that two Rak’ats have been completed, such as when he is in the sitting position after the second Sajdah of the second Rak’at, there are the following rules for such a case: (a) That there is no remedy for the case and the prayer

is void. (b) That there are rules for the case to follow and the prayer will be considered valid. The situation in ’b’ may have one of the following forms:

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(1) That after completing the second Sajdah of the second Rak‘at one doubts whether he has completed the second Rak’at or whether it is the third Rak’at. CR # 326. In this case, he must assume that he has completed Rak’at, and has to pray another Rak’at in addition. After Salam’ pray one Rak’at prayer called ’Prayer of Ehtiyat’ according to a precaution, in a standing position. If his duty is to pray sitting, he two Rak’at in a sitting position.

the third he has to necessary must pray

(2) That any time during prayer one doubts whether he has prayed three Rak’ats or four. CR # 327. In this case, he must

assume

that four Rak’ats have been

completed. After Salam’ he must pray either the one Rak’at prayer of Ehtiyat in a standing position or two Rak’ats in a sitting position.

(3) That one after completing the second Sajdah of doubts whether he has prayed two or four Rak’ats.

the second Rak‘at

CR # 328. In this case, one must assume that he has prayed four Rak’ats. After Salam’ he must pray two Rak’ats of Ehtiyat in a standing position. (4) That after the last Sajdah of the second Rak‘at one doubts whether he has prayed two, three or four Rak’ats. CR # 329. In this case, one must assume

that four Rak’ats have been

completed. After completing a prayer based on the above assumption one has to pray two Rak’ats of Ehtiyat in a standing position and two Rak’ats in a sitting position, first completing the one in a standing position and then that in a the sitting position. If one’s duty is to pray in a sitting position, he must pray first the two Rak’ats in a sitting position and one further Rak’at in a standing position. (5) That when one has just completed the last Sajdah of the second Rak‘at one doubts whether he has prayed four or five Rak’ats.

CR # 330. In this case, one must assume that one has prayed four Rak’ats. He must complete the prayer and after Salam have two Sajdahs for the mistake. _ (6) That one in a standing position doubts whether he has prayed four or five _ Rak’ats.

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EE SOO LT CR # 331. In this case, one has to sit down and complete the rest of the prayer and follow the rule about the prayer of Ehtiyat as mentioned in the tule about ’2’ by praying two Rak‘at of Ihtiyat in standing position according to a Mustahab prayer one should pray two Rak‘at in a sitting position, and according to necessary Ihtiyat one must do two Sajdahs for mistake. (7) That one cannot decide, while in a standing position, whether it is the third or the fifth Rak’at. CR # 332 In this case, one has to sit down and complete the rest of the prayer and follow the rule about the prayer of Ehtiyat by praying two Rak‘at standing and two Rak‘at sitting and according to Ihtiyat two Sajdas for mistake of standing up.

(8) That one, while in a standing position, cannot decide whether it is the second, third or the fourth Rak’at. CR # 333. In this case, one must assume that it is the fourth Rak’at and after

’Salam’ follow the rule about the Ehtiyat prayer as mentioned by two Rak‘at standing and two Rak‘at sitting and according to Ihtiyat two sajdas_ for standing by mistake. (9) That one, while in a standing position, doubts whether it is the fifth or the sixth Rak’at. CR # 334. In this case, one must sit down, complete the rest of the prayer and follow the rule as mentioned in ’5S’, It is Ehtiyat that in the four latter cases one should have a Sajdah after Salam’ because of forgetfulness in his unnecessarily standing.

CR # 335. If one doubts whether one has prayed two or three Rak’ats and assumes that it is the third Rak’at; adding another Rak’at completes the prayer, but after Salam’ doubts whether his assumption of third Rak’at was based on the rule about the doubt in the case or was based on his zan, the

heavier side of the idea about the case, he has to after Salam’ one is certain that one’s assumption about the doubt but rather was because of one’s about following the rule of a doubt, his prayer will

CR # 336. zan about the number The zan in the acts of the prayer that of certainty, however,if one perhaps it was completed, if there that act again. If one has a zan

pray the Ehtiyat prayer. If was not based on the rule zan for one’s unawareness be valid.

of the Rak’ats in the prayer is as certainty. may be considered as of the same rule as has a zan in the acts of the prayer that is still time he has to go back and complete about not having completed an act of the

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prayer and he has already assumed the next position, he does not have to pay attention to it and it is a Mustahab Ehtiyat to pray all over again. CR # 337. In the cases about doubts where completing the last Sajdah is a condition as in 1, 3, and 4, if one faces another doubt about completing the last Sajdah, if his doubt arises when one is in a sitting position or has started Tashahhud, his prayer will be void; it will be considered as if the last Sajdah was not completed. If it is after assuming the standing position or assuming Tashahhud, his prayer will be valid.

CR # 338. If one doubts whether the situation he is facing is a doubt or a zan, the case will be considered as a doubt, not a zan. The same applies to the case where during the acts of the prayer, after starting the next act, one can not decide whether his attitude towards the previous act was a doubt or a zan. In this case, he has to assume that it was a doubt, if it is presently a doubt and assume that it was a zan if it is presently a zan; he must follow the rule required by the zan or the doubt in the case. In the same way one has to follow the rule about the present attitude of one’s mind if one’s doubt changes from one to the other. For instance, if one doubts whether it is the

third or the fourth Rak’at, and according to the rule for the same assumes that it is the fourth Rak’at but later the doubt is changed into a zan indicating that it was

in fact the third Rak’at, not the fourth, he has to assume,

according to the zan, that it was the third Rak’at, for it is the present attitude of his mind.

SECTION NO. 10 THE PRAYER OF EHTIYAT CR # 339. The prayer of Ehtiyat is obligatory and one is not allowed to give it up and pray again a prayer for which one was supposed to pray the prayer of Ehtiyat. According to Ehtiyat, even praying a prayer again will not be considered valid, unless it is discontinued by doing something that invalidates a prayer.

CR # 340. All the conditions required for the parts and acts of the prayer are required for the prayer of Ehtiyat - like: (a) Intention, (b) Takbiratul Ehram, (c) To recite Al-Fatihah, (d) To read Fatihah silently even the Bismillah’ therein according to Ehtiyat, (e) Ruku’, (f) Sajdahs, (g) Tashahhud and (h) *Salam’ the ending phrases.

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oh # 341. To read a chapter from Quran is not necessary in the prayer of Ehtiyat.

CR # 342 Between the prayer of Ehtiyat and the original prayer if anything invalidating the prayer takes place, the whole prayer will be considered void and one has to pray it from the beginning.

CR # 343. If it is discovered during the prayer of Ehtiyat that the original prayer was valid and no prayer of Ehtiyat was needed, regardless, it is discovered before starting the prayer of Ehtiyat or during the same, it is not an offense to discontinue it or complete the same as an optional prayer. CR # 344. If before starting the prayer of Ehtiyat or during the same it is discovered that the original prayer was, in fact, defective (some Rak’at or Rak’ats were missed therefrom), it is necessary to complete it if possible, otherwise, it will be considered void. For instance, if one doubts whether it is

the second or the fourth Rak’at and after assuming the Rukw’ for the second Rak’at of the prayer of Ehtiyat it is discovered that from the original prayer only one Rak’at was missing, the whole prayer will be void. If one doubts whether it is the third Rak’at or the fourth and following the rule therein after Salam’ of the original prayer starts one Rak’at of the prayer of Ehtiyat in a standing position, but after completing the prayer of Ehtiyat and before doing anything that invalidates the prayer it is discovered that, in fact, two Rak’ats were missing from the original prayer, he has to pray another Rak’at to complete the prayer and after Salam’ has to have the Sajdahs for two mistakes; one for the unnecessary ’Salam’ in the original prayer and one for the unnecessary Salam’ in the prayer of Ehtiyat. CR # 345. All the rules true of the other prayers concerning doubts, omission or additions are true of the prayer of Ehtiyat. If one doubts about the number of the Rak’ats in the prayer of Ehtiyat, he may assume the side which indicates the greater number, unless this side will lead to invalidation of the prayer and according to Ihtiyat one should do the original prayer all over again.

CR # 346. If one.doubts whether one did pray the prayer of Ehtiyat or not if this is when the time of prayer is gone he disregards the doubt, but if there is time and nothing invalidating prayer has taken place, one assume that he did not do, and if such things have taken place or it is after f the time for prayer it is Mustahab Ihtiyat to pray the original pray all over again. CR # 347. If one forgets to complete an elemental part of the prayer of Ehtiyat and cannot manage to complete it in the due time or if an elemental

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part is added therein such as Rukw’ or Sajdah, one is required to pray the original prayer again.

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CR # 348. If one forgets to have one of the Sajdahs and comes to know of the mistake only after the next Rukw’, it is necessary for him to manage the remedy for the same after the original and the prayer of Ehtiyat and make two sajdahs for mistake. The same rule is true of missing a Tashahhud if one comes to know of the mistake only after he has assumed the next Rukw’. Also if one forgets to complete one Sajdah and Tashahhud from the last Rak’at of a prayer and comes to know of the mistake only after Salam’ when one has already done things that invalidate the prayer, intentionally or _ mistakenly, he must according to Ihtiyat manage the remedy, Qada, of the forgotten part and pray the original also over again but if such parts are of the last Rak‘at and one comes to know of the mistake after Salam’ and before doing anything that invalidates the prayer, he has to go back to complete the missing parts, say Tashahhud and ’Salam’ and have two Sajdahs because of unnecessary Salam’ on account of a necessary Ehtiyat therein and if this would be after things invalidating prayer takes place then according to strong reason one must pray the original all over again. There is no need to -manage ’Qada’, remedy of the other parts of the prayer besides Sajdah or Tashahhud. CR # 349. Everything required for the original of a Qada (remedy) is needed for Qada such as conditions and parts. CR # 350. It is necessary that Qada (remedy) be completed with the intention to complete the same as a replacement of the original. CR # 351. It is not allowed to separate Qada of the parts of a prayer from the original with an interval in between which could be considered invalidating to the prayer. If one does so, one has to pray the original again. CR # 352 If one doubts whether a Qada for the missing part from the original prayer has been completed or not, he has to assume that it has not been done, unless this happens when the time for the same has already gone. If one doubts whether there is any reason to manage for Qada or not, one has to assume that no such reason exits.

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CR # 353. One is required to have two Sajdahs for the mistakes in the original prayer in the following cases. (a) Talking by mistake during prayer. (b) Saying an unnecessary ’Salam’ in the prayer. (c) Because of doubt ee one has prayed four or five Rak’ats. (d) Forgetting a Sajdah or as ud. CR # 354. It is a necessary Ehtiyat to have Sajdahs for mistakes, unnecessary standing when one is required to sit or unnecessary sitting when One is required to stand. It is a necessary Ehtiyat to have Sajdahs for other mistakes or forgotten parts and for all the unnecessary additions or omissions in the prayer. CR # 355. The Sajdah for the mistakes must be completed as many times as the number of mistakes. If the reason would be talking, repetition in it will not require several Sajdahs, unless the mistake in talking is made several times like talking by mistake once and after realizing the mistake to talk again by mistake. On the contrary, if one during prayer mistakenly talks a great deal, only one Sajdah will be needed. CR # 356. It is not necessary to maintain an order among such Sajdahs if one has to have more than one on account of several reasons that have come into being during prayer. One may start first with any of them and continue until they all are completed.

CR # 357. Such Sajdahs must be managed only after the prayer of Ehtiyat and the remedy (Qada) of the missing parts if any. It is Ehtiyat not to delay after the prayer is completed or cause an interval between this Sajdah and the prayer by saying something that invalidates the prayer. If something invalidating the prayer takes place in the interval between the prayer and the Sajdah, this will have no effect on the validity of the prayer and one still has to have the Sajdah, according to Ehtiyat, without delay. If one forgets to have the Sajdah and comes to know of it only when one has already started another prayer,.he has to complete the prayer first then manage for the Sajdah. CR # 358. The form of this Sajdah in question is as follows: (a) Niyat Intention, (b) two consecutive Sajdahs, (c) this Dhikr in each Sajdah Bismillahe Wa Bellahe Wassalamu ’Alayka Ayyuhanna Biyyu Wa Rahmatullahe Wa Barakatuh. (d) placing all the seven parts of the body on the ground, (e) placing the forehead on the right object like the kind mentioned for prayer, (f) observing all the other conditions required for

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prayer according to a Mustahab Ehtiyat, such as Wuzu facing the direction of Qiblah and having proper clothing, (g) Tashahhud after completing the second Sajdah and (h) ’Salam’, the ending phrase.

CR # 359. If one doubts the existence of the reason for the Sajdah he does not have to pay attention to it. If the doubt is about the number of the Sajdah, he has to assume the lesser number. If one doubts whether he completed the Sajdah that he was supposed to have or not, he is required to do it again. If one believes that the reason for a Sajdah came into being but after Salam’ starts to doubt it, he does not have to pay any attention to it. If one doubts the existence of the reason and after Salam’ is sure of the existence of that reason, in this case, one is required to have the Sajdah. If one doubts whether he had one Sajdah or two, he has to assume that the lesser number was done unless he has already entered Tashahhud. If one doubts whether he said the Dhikr in the Sajdah and this happens when he is up from the Sajdah, he does not have to pay any attention to it. If he believes that the Dhikr has not been said, he must go back to have the Sajdah again. If one adds one further Sajdah, this does not harm the validity of the Sajdah.

CR # 360. The rules about doubts in the obligatory and optional prayers share the common point in that whenever there is a doubt about a part of the prayer and there is still time for the same, one has to go back to complete that part. If the doubt arises after the time for a part has gone, one does not have to pay attention to it. The other point that they share is that if one forgets a part and comes to know of the mistake before he enters the next elemental part, again, one has to go back to complete the forgotten part. The difference between the obligatory and optional prayer is that in the case of a doubt in the number of the Rak’ats in the optional prayer one is allowed to assume the lesser number or the greater one, as mentioned before. No Sajdah for a mistake is necessary in the optional prayer and no remedy (Qada) is required for the forgotten parts of the optional prayer. To add an elemental part to the optional prayer does not effect its validity. Thus, one may go back to complete a forgotten part of the optional prayer even though he comes to know of the acts that he has forgotten after entering the next elemental part.

SECTION NO. 12 THE FRIDAY PRAYER CR # 361. In the absence of the Twelfth Imam, the Friday prayer is an obligation of the alternative nature. On Friday, if conditions for the Friday

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prayer exist, either zuhr prayer or the Friday prayer would be enough for that day’s worship at the time for the zuhr prayer.

CR # 362 It is not necessary to particularly manage for the Friday prayer instead of zuhr on that day. If Friday prayer is held, it would be an Ehtiyat not to miss attending the same.

CR # 363. The form of the Friday prayer is like the morning prayer with one difference: two sermons that be delivered before the Friday prayer. CR # 364. The time for the Friday prayer starts from noon and ends when the shadow of an object erected on a plain ground at a places close to equator becomes equal to the length of that object. If the Friday prayer is not prayed within this time, it is necessary to pray zuhr.

THE CONDITIONS (A) THE NUMBER OF THOSE PRAYING. CR # 365. There must be at least seven people including the Imam for the congregation in the Friday prayer. Thus, if this number of Muslims are not present to attend the congregation, it is not necessary to pray Friday prayer. If including the Imam five people are present to attend the congregation, the congregation would be valid, but not enough for the Friday prayer.

(B) QUALIFICATIONS OF THE IMAM. CR # 366. The qualifications required for the Imam to lead the congregation are the same as those required for the Imam who is entitled to lead the congregation of the daily prayer.

CONDITIONS

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PRAYER

(a) The Friday prayer must be prayed in congregation.

If a person joins the congregation in the first Rak’at before the Imam assumes the position for Rukw’, it will be considered sufficient. The same applies if one joins it before the Imam assumes Ruku’ of the second Rak’at, however, if one joins in when the Imam is already in the Ruku’ of the second

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- Rak’at, it would be difficult to consider his prayer valid. In this case, it is a necessary Ehtiyat to complete the prayer with congregation and pray zuhr also.

(b) Two sermons must be delivered.

CR # 367. In the first sermon after thanks and praises to Allah, the Imam should recommend people to observe the laws of Allah and do their best to make some progress in piety; also one chapter from the holy Quran has to be read. Then there should be an interval by sitting down for a short while before starting the next sermon. In the second sermon the Imam after thanks and praises to Allah should ask Allah to send His blessing upon Muhammad and his family and ask forgiveness from Allah for the people. CR # 368. One is not allowed to deliver the sermons before noon.

CR # 369. The sermons must be delivered before the prayer in a standing position. CR # 370. One person must deliver the sermons and lead the prayer. CR # 371. Wudu is not necessary for delivering the sermons, although it is an Ehtiyat to deliver them with Wudu.

CR # 372. The parts of the sermons which are necessary, must be delivered in Arabic and the rest can be delivered in any language. If the people present do not know Arabic, it is Ehtiyat to address them in their own language. (c) Distance between two congregations

CR # 373. It is necessary that two congregation of the Friday prayer must not be held within a radius of less than one Farsakh, otherwise, only the one starting first will be valid.

WHEN

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CR # 374. Once a qualified congregation is held, it is a necessary Ehtiyat to attend that congregation.

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CR # 375. Women are not required to attend the congregation for the Friday prayer.

CR # 376. A slave is not required to attend the Friday prayer. CR # 377. A person on a journey or a sick person is not required to attend the congregation for the Friday prayer. An old person also is not required. CR # 378. If the congregation is held at a distance of more than two Farsakhs, it is not necessary to attend the congregation held there. A person for whom it is not necessary to attend the Friday prayer is allowed to pray zuhr at the beginning of its time. It is Ehtiyat that the person living near to where the Friday prayer is held, should not start on a journey during the time of the Friday prayer. One is not allowed to talk while listening to the sermons. It is Ehtiyat to listen to the sermons with care. When the Imam is delivering the sermons it is not necessary for one to attend them. During the time the Imam is delivering the sermons it is not unlawful to do business, provided, it does not prevent one from attending the prayer, and the contract made for such business will also be valid. If people who do not have to attend the prayer, attend and pray, their prayer will be valid. If after praying the Friday prayer one comes to know that another Friday prayer was held within a distance of less than one Farsakh his prayer will be valid, regardless, the discovery was in time or after it.

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SECTION NO. 11 The Prayer for an Unusual Natural Event:

CR # 379. This prayer is obligatory for every responsible person except women who are experiencing menstruation or blood discharge of chid birth. The natural events are: (a) Eclipses of sun and moon, even partial ones, (b) earth quakes and (c) any-frightening natural event such as violent storms, darkness, thunder, unusual lightning in the sky or any other such frightening events.

CR # 380. Fear is not a condition regarding eclipses of the sun, moon and earth quakes. In those events where fear is taken as a condition in the | prayer, the criteria would be the kind of fear that could be found in most of the people. Thus, an event that does not cause fear or only causes it in few people will not be considered as a cause for the prayer to become obligatory.

CR # 381. The time for this prayer starts from the beginning of the eclipses of the sun and moon and ends with the full clearance of the eclipse. If the time of eclipses would less than the time that takes one to pray the prayer for it then the prayer must be said with the intention just to do one’s duty without any intention for it to be a prayer in time or a Qada. The is the case if one does not pray until the time left would only be enough for one Rakat prayer.

CR # 382 If only one Rak’at is prayed in time, still it will be considered as a prayer in time. If less than a Rak’at is prayed in time, it should be prayed with a general intention of cither a prayer in time or a remedy (Qada) for the same. The above rule only applies when the time is long enough. CR # 383. Besides the eclipses of the sun and moon it is difficult to limit the timing. It is necessary, in the case of other natural unusual events to pray immediately, if possible, as soon as it takes place. If the rule is violated, one may pray any time in his life time.

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CR # 384. If one does not know of the eclipse until after it has fully cleared, if it is not a total eclipse, there would be nothing due on him.

If one ignores the eclipse or forgets to pray for the same or the eclipse is a total eclipse, it is necessary for him to pray the remedy (Qada). The same is true if one prays incorrectly.

CR # 385. A delay in the cases other than the prayer for the eclipses would be considered a sin. CR # 386. This prayer is necessary for people who live in the place where the happening takes place and can be seen.

CR # 387. If an unusual happening takes place at the time of any prayers and the time for both the prayers is long enough, one may the prayers first. If the time for one of them is about to expire, lesser time is to be prayed first, if the time for both of them expire, the daily prayer must be prayed first.

of the daily pray any of one of the is about to

CR # 388. In the case of a situation like the above one, if one starts one of the prayers and during this prayer discovers that the time for the other is about to expire before he finishes the one which he is praying, in this case, he is allowed to discontinue the one which he is praying and start the other. If the one discontinued is the prayer for the unusual event, after completing the other prayer, one may continue the first one from the place at which it was discontinued as long as nothing else has taken place to invalidate the prayer.

CR # 389. One is allowed to discontinue the prayer for the unusual happening if one is afraid of missing the virtuous time of the daily prayer, but after praying the daily prayer he must complete the prayer for the unusual happening from the place at which it was discontinued.

The

Form

of This

Prayer:

CR # 390. The prayer for an unusual natural event has only two Rak’ats. In each Rak’at there are five Ruku’s with an upright steady position after each Rukw’. There are two Sajdahs after the fifth Ruku’ in each Rak’at. After the last Sajdah in the second Rak’at there is a Tashahhud and a Salam. After

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’Niyat’ intention, Takbiratul Ehram, reciting Al-fatihah and a chapter from the Quran one must assume Ruku’, stand up and recite Al-fatihah and a chapter and assume Rukw’ and so on, until the five Ruku’s have been completed. He must continue with the second Rak’at in the same way.

CR # 391. One is also allowed to divide one chapter into five parts, reading each part between the Ruku’s without going back to the beginning of the Fatihah after each Rukw’. For instance, after reading Al-fatihah in the first Rak’at one may read one fifth of a chapter then assume Ruku’. After Rukw’ he may read the second fifth of the chapter and assume Rukuw’ until all the _ five parts are read, all the five Ruku’s are completed and the two Sajdahs are also completed. With this the first Rak’at is complete, and he must then stand for the second Rak’at and start from AJ-fatihah continuing in the same way as in the first Rak’at. After the last Sajdah in the second Rak’at he must say Tashahhud and Salam with which his prayer ends. This means that in each Rak’at he has recited Al-fatihah once and has divided one chapter into five equal parts in each Rak’at. So far, according to the above explanations there— are two ways to pray a prayer for an unusual natural event. CR # 392 One is also allowed to pray one Rak’at according to the first way, mentioned above, and the second Rak’at according to the second way and vise verse. CR # 393. A doubt about the number of the Rak’ats in this prayer will cause it to become void, for it consists of only two Rak’ats, as mentioned previously there is no manageable way for a doubt concerning the number of the Rak’ats in the prayer consisting of two Rak’ats. In the case of such a doubt one has to discontinue the prayer and start praying from the beginning.

CR # 394, one has to number of six Ruku’s.

In this prayer, if a doubt arises about the number of the Ruku’s, assume the lesser number unless it may lead to a doubt about the the Rak’ats, such as doubting whether one has completed five or In such a case, one’s prayer will be void.

CR # 395. The Rukw’ of this prayer are elemental parts just as the Rukw’ in the daily prayers; if added or omitted for any reason, it will cause the prayer to become void.

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CR # 396. All other necessary or optional parts and conditions in this prayer are the same as those of the daily prayers including the rules about doubt and forgetfulness and so on. CR # 397. It is Mustahab to say Qunut before each second Rukw’ in each Rak’at. There is no harm to say only two Qunuts, one before the last Ruku’ in each Rak’at or only one Qunut before the last Rukw’ in the second Rak’at. CR # 398. It is Mustahab to say Takbir (ALLAHU AKBAR) before assuming each Rukw’ and after it, except after the fifth and tenth where one should say: SAME ’ALLAHU LE MAN hAMEDAH. The Takbirs should be said before and after Rukw’ in a standing position not in Rukw’. CR # 399. It is Mustahab to pray this prayer in congregation, regardless, it is the one in due time or a remedy for the same. The people behind the Imam do not have to recite the readings, Al-fatihah and the chapter from the Quran, but have to say or do all the other parts and positions. CR # 400. If one joins the congregation when the Imam is about to assume the first Rukw’ in the first or second Rak’at, his prayer will be valid but not at any other place. CR # 401. It is Mustahab to lengthen the prayer for the moon eclipse until it is fully cleared. If the prayer is finished before the full clearance, one should sit where he prayed and continue praying or pray the same prayer again. If the Imam realizes that to lengthen the prayer would be difficult for the people behind him, he should not lengthen the prayer. It is Mustahab to read one of the long chapters of the Quran in this prayer and that the time taken for the Ruku’ and Sajdahs should be equal to that taken for the recitation, the recitations should be recited aloud, regardless of the time, and it should

be prayed under the sky or in the Mosque.

CR # 402 The testimony of the two just people can be considered enough proof that an unusual event has taken place and also, according to a necessary Ihtiyat, the testimony of only one trustworthy person CR # 403. The number of the prayers will increase with the increase in the number of the causes. It is a Mustahab Ehtiyat to determine for which reason one is praying.

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12 Prayer

CR # 404. It is necessary to pray the Qada (remedy) of the daily prayers missed in their due time for any reason except a permanent or timely mental-illness, disbelief in Islam, menstruation or the blood discharge of child birth. CR # 405. A person who gives up Islam for a while and again becomes a Muslim, must pray the Oada of the prayers that he has missed during the time of his disbelief in Islam.

CR # 406. It is a necessary Ehtiyat that a person suffering from a timely mental-iliness should manage for the Qada of the prayer he has missed during his illness, if he himself has caused to miss a prayer. CR # 407. If a child reaches maturity at the time of a certain prayer, and a mentally-ill person recovers at the time of a prayer if they have enough time to pray one Rak’at from that prayer with all the conditions required, they must do so. The same rule applies to women after their period if they can manage the formalities required. If they had time to pray one Rak’at with proper Taharat; Wuzu, Ghusl or Tayammum and did not pray, Qada for that prayer will be due on them.

CR # 408. If one of the above mentioned reasons, preventing one from praying, takes place some time after the time of a prayer has already passed and within this time one could have managed the prayer but did not do so, the Qada for this prayer will also be due on him. CR # 409. Muslims, other than the Ithna ’ashari Shias, who embrace beliefs and laws of the Shia school have to pray only the Qada of the prayers missed during the time they were non-Shias or those prayers which they themselves believed were invalid according to their own school.

CR # 410. The prayer or prayers missed because of the effect of the intoxicating things must be managed in the form of Qada (remedy), _ regardless, one experience that state willingly or by force.

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CR # 411. It is necessary to manage the Qada of the obligatory prayers other

than the daily ones except the prayers of the two ’ids, the ’id after Ramadan and the ’id on tenth of Dhil hajj. CR # 412. A Qada can be prayed any time during the twenty four hours anywhere at home or on a journey. The form of a Qada will always be the same as the original one. CR # 413. If one is at home at the beginning of the time for a prayer and on a journey at the end of its time, and he misses that prayer, he is required to follow the rule about the end of the time, even if the above case would be the contrary.

CR # 414. If one misses a prayer on a journey in the places where one is allowed to pray both ways, (as if at home or on a journey), he must pray the Qada for the prayer missed as if he missed it on a journey, even though he is still staying at that place where he may pray either way. CR # 415. In some cases it is necessary to pray both ways at the same time and the same prayer. This case may take place when one is not sure whether one has journeyed the necessary distance to be considered as one on a journey or not. Thus, Qada for such a prayer, if missed, will be the same as the original, that is, to pray both ways. CR # 416. It is Mustahab to pray the Qada of the daily optional prayers and also the others. It is not strongly recommended that one should pray the Qada of the optional prayers missed through illness. If one cannot manage the Qada of optional prayers, it is Mustahab to give a handful of food to the needy as a remedy for each Rak’at or a handful for the optional prayers of the night and one for those of the day, if one cannot manage a handful of food for each Rak’at.

CR # 417. No proper order is required in praying the Qada for the prayers other than the Qada of the daily prayers. If the Qada is that of the daily prayers, it is necessary to maintain a proper order if they are of the ones which have a certain order like zuhr, ’asr, Maghrib and ’ish prayers of the same day. In such a case one must pray the Qada for zuhr then for ’asr and so on, however, even in the daily prayers that do not hav such order still it is necessary Ihtiyat to observe such order.

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CR # 41%, If one is certain that he has missed only one of the prayers of a day, as the Qada for the same, he has to pray three prayers; one of two Rak'ats, three Rak’ats and four Rak’ats intending to fulfill the duty incumbent on him, If he is a person on a journey, he has to pray two prayers, one of two Rak’ats and one of three Rak’ats praying the two Rak’ats with a general intention to fulfill his duty. If one does not know whether the prayer was missed at home or while on a journey, he has to pray a Maghrib, one of two Rak’ats and one of four Rak’ats with a general intention in the two latter cases, In all cases, regarding the silence and loudness in the readings of the

prayers either way would be allowed.

CR # 419, If one knows that of the five daily prayers of one day the Qada for two on them is incumbent of him, he has to pray four prayers: first one morning prayer then a four Rak’at prayer for either zuhr or ’asr, a Maghrib prayer and a four Rak’at prayer for either ’asr or ’isha. If he is on a journey, he has only to pray three prayers each of two Rak’ats for either morning, vuhr or ’asr and a Maghrib prayer, again, two Rak’ats for either zuhr, ’asr or ‘isha, If he does not know whether they were missed at home or on a journey, fer he has to pray five prayers; one of two Rak’ats for either morning, zuhr or ‘asr, one of four Rak’ats for either zuhr or ’asr, a Maghrib, one of two Rak’ats for cither 'asr or ’isha and finally one of four Rak’ats for either ’asr or ‘isha, CR # 420. If one knows that he has missed three out of the five prayers of the same day, he has to pray as Qada all the five prayers. If he has missed them on a journey, four prayers of two Rak’ats would be sufficient for either morning or zuhr, one of two Rak’ats for either zuhr or ’asr, one Maghrib,

then one of two Rak’ats for either ’asr or isha. If one knows that four prayers out of five are missed, if he is at home, he has to pray all the five prayers in a day, as if at home, and five as if on a journey if he is on a journey. CR # 421. If one doubts whether he has missed any obligatory prayer or not, there will be no Qada incumbent on him. If he knows that some prayers have been missed but does not know the exact number, he may assume the lesser number, It is Ehtiyat to pray sufficiently to make sure that one’s duty has

been fulfilled, /CR # 422 It is not necessary to manage the Qada of a prayer immediately, as long as the delay will not be considered as a disrespect of the duty.

4

QADA

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27¢

CR # 423. It is not necessary to pray Qada before the one for which it i time, even if Qada would be of the same day. If one thinks that the virtuou time for the prayer may expire, it is Mustahab to pray the prayer of th present time, then Qada, if there is no such fear, it is Mustahab to pray Qad first, although it is Ehtiyat to pray first Qada of the same day. Moreover, it i Mustahab to change the prayer of the present time, if one unintentionall starts it first into the Qada. CR # 424. There is no harm in praying optional prayers, even if one has t pray the Qada of the prayers that were missed before.

CR # 425. One is allowed to pray Qada in congregation, either as an Iman or praying behind the Imam. There is no need that the prayers of both th Imam and the person behind him should be of the same nature.

CR # 426 It is necessary for the people who cannot pray properly for som: reason, to wait before praying Qada, until that reason is over, as long as the know that the reason will pass later on. If they know that the reason will no pass, there is no harm for them to pray anytime. They may even pray if the think that perhaps the reason will continue. If they pray Qada and later o1 the reason passes, if because of the reason some short-comings took place ix the elemental parts of the prayer, in this case, they have to pray them again There is no need to pray them again if the short-comings in the prayer wer not in the elemental parts of the prayer.

CR # 427. If one has to pray the Qada of several prayers at the same time he is allowed to say the Adhan and Eqamah only once, and after this, only sa the Eqamah for each prayer.

CR # 428. It is Mustahab to recommend children to pray the prayers of th present time, the optional prayers, the Qada for them and all kinds o worship; there is a strong reason that their worship will be considered valid, 1 during the time for a prayer they reach maturity their prayer will b considered valid as an obligatory one.

CR # 429. It is necessary for the guardian of a child to protect him from al

dangers, and from all that are known according to Shari’a as Makruh, even i

that which is Makruh is done by a child. Children must be stopped fron

illegal sex, homosexuality, drinking wine and tale-bearing, respectively.

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CR # 430. To say that it is necessary for the guardian of the child to prevent him from eating unclean things or drinking something which may not harm him is not free from objection, although it seems allowed, especially, in the things which have become unclean and are from him or are associated with him. Also there is no harm to clothe him with silk and gold. CR # 431. It is necessary for the eldest son of a deceased to manage the Qada of the obligatory prayers missed by his father, provided it was not due to his disobeying the law, for some reason, such as sickness etc. This kind of obligatory prayer for the eldest son will be limited to those prayers for which the father had the ability to pray but did not. The fast missed by the father on a journey, even though he did not have the ability to do the Qada, itis a necessary Ihtiyat that the eldest son do the Qada for him or hire someone for it. CR # 432. According to a Mustahab Ehtiyat, after the eldest son this duty will go to the next eldest male who comes in the next class of the heirs and so on.

CR # 433. It is Ehtiyat to consider the prayers that the deceased may have missed intentionally or prayed incorrectly as those mentioned before. CR # 434. It is better to consider a mother also as the father in the above

CR # about the OQada prayers.

CR # 435. If the eldest son at the time of the death of his father would be a child or mentally-ill, still it is obligatory for him to fulfill this duty when he becomes mature or gets well. CR # 436 If there are two sons who are of the same age, it would be the duty of both of them, if being fulfilled by one person the other will no longer need to do it, even though he also was obliged to do, regardless, it was possible for them to divide the duty or not, such as if there existed several prayers to be prayed or only one as Qada or such as only one Rak’at.

CR # 437. If it is unknown which of the sons of a deceased is the eldest or there is a possibility about the oldest being one of several people, all will be obliged to pray the Qada prayer of the deceased, according to Ihtiyat, or they may decide it by casting Qur‘a, lots.

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CR # 438. It is not necessary for the oldest son to pray the Qada of the prayers which his father was supposed to pray on account of his hiring out himself to pray certain prayers for others. CR # 439. If the oldest son dies after the death of his father, other sons will

not be obliged to pray the prayers missed by the father, and neither will it be necessary to hire someone to pray them who would be paid from the legacy of the oldest son. CR # 440. The oldest son has to pray the Qada of the prayers missed by the father, even if he has no right to receive his share of the legacy of the father for some reason, such as killing the father or becoming a non-Muslim.

CR # 441. If someone voluntarily prays the Qada of the prayers missed by the deceased, there is no need for the oldest son to pray them. In the same way, the oldest son does not have to pray them if they are prayed by someone who prays for payment. If it is known that he has, in fact, already prayed them. CR # 442 If there is doubt whether there was any Qada incumbent on the deceased to be prayed by the oldest son or not, the oldest son may assume that he does not have to pray any Qada on behalf of his father. If he doubts about the number of the Qada incumbent on his father, he may assume the lesser number.

CR # 443. If the deceased has no one who could be considered responsible for the Qada of the prayers he has missed, or he has missed the prayers for which no one after his death could be considered responsible, there is strong reason that it is not necessary to pay someone from the legacy of the deceased to pray them, although it would be a Mustahab Ehtiyat for the adult heirs of the deceased to do so. CR # 444. The eldest son is the one who is the oldest in age not in maturity or because he was conceived by his mother before some one CR # 445. It is not necessary to hurry to pray the Qada of the prayers missed by the deceased, as long as it is of no disrespect to the duty.

CR # 446. If one knows the number of the Qada prayers but does not know whether he must pray them all because it is his duty, or whether it is

tae cy

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necessary to pray only some of them, in this case, it is a necessary Ehtiyat to pray them all.

CR # 447. The eldest son must observe the rules about the conditions and parts of the prayer when praying the Qada for the prayers missed by the deceased father, according to his duty as being a Mujtahid or as the one following a Mujtahid. CR # 448. If the father dies at the time of a prayer before praying a prayer which could have been prayed, it is Ehtiyat that the oldest son should also pray the Qada for this prayer on behalf of his father.

SECTION Praying

for

NO. 13 Payment

CR # 449. One is not allowed to pray the prayers that someone may have missed for a certain amount paid for the labor of praying. It is not allowed while the person who pays for the missing prayers is still alive even if he himself is not able to pray them. CR # 450. Only in the case of hajj, someone who is not able to fulfill his obligation of hajj may hire someone to perform the acts of Hajj.

CR # 451. It is not an offense to visit the Shrine of the Prophet (p.b.) and those of the Imams (a.s.) on behalf of the people who themselves can not visit them.

CR # 452 One is allowed to pray or do some other worship and ask Allah to present the reward that he may receive from Allah to the soul of certain people whom he may like to benefit in this way. It is narrated that this is a legal way to benefit the souls of those who have died and some of the well known companions of the Imams were seen practicing it. CR # 453. One is allowed to pray on behalf of people who have died, and receive money for the labor of praying. The same applies to the other worship acts. In this way people already dead will be considered free from their obligations, regardless, it is done by a relative or others.

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CR # 454. The person undertaking to complete a certain prayer or other worships on behalf of the dead person must be: (a) Free from mental-illness, (b) a believer in Islam, (c) mature as regards age, and (d) know the necessary rules about the worship acts.

CR # 455. It is necessary that the one who has hired himself out for the work must pray the prayer with the intention of praying it on behalf of the person who missed it in his life time, and also with the intention lo free himself from the duty of being hired out for the work. CR # 456. Both men and women are allowed to hire themselves out for the

work of praying on behalf of some deceased people of either sex.

CR # 457. Regarding the CR # of reciting certain readings aloud or silently, the case of the person who has hired himself out must be observed, not that of the deceased. Thus, a woman must always pray silently even if she has hired herself out to pray on behalf of a man, and a man always pray aloud where he himself is supposed to pray aloud and silently where it is to he silent, even though he may have hired himself out lo pray on behalf of a deceased woman. CR # 458. One is not allowed lo hire, for the above purpose, those people who cannot stand properly, clean themselves or have proper Wudu, except when no one else is available. According to a strong reason even if such people volunteer for such works, still they will not be considered valid.

CR # 459. Concerning the rules that the person who hires himself out, may need to solve the problems of doubt, forgetfulness and others, he must follow the rules according lo his own Ejtihad, being himself a Mujtahid, or the decisions of the Mujtahid. He must not follow the rules that the deceased was supposed to follow. This applies if the contract is unconditional, otherwise, he must go according to the conditions mentioned in the contract. For instance,

if the contract says that whenever facing a doubt in the prayer he must pray the prayer again, this condition must be fulfilled. The same is true of the other rules of the prayer. CR # 460. If the contract says that the person who has hired himself out has _ to pray and no one else, this conditions must be fulfilled, and he is not “allowed to hire someone else for the work; others are not allowed to volunteer on his behaif. If nothing is said in the contract, he may hire

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someone eise for the work but not for less payment unless some parts of the work have been done by the first person who has hired himself out for the work,

CR # 461. If a time limit is set up for the work to be done and it is not done in time, the person who has hired himself out will not be allowed to do the work after the time limit, unless part of the work was done within the time or the person hiring him permits this. If without permission he completes the work after the time limit, he would deserve no payment. However, the deceased will be considered free of the obligation even for the work not done within the time limit set up in the contract. CR # 462 If after completing the work it is discovered that the contract was not valid, the person who has hired himself deserves to receive the equivalent amount of the payment that he was supposed to receive. The same is true if the contract is annulled because of the loss to one party etc. CR # 463. If nothing is said in the contract as regards the optional matters in the prayer, it is necessary to include them in the prayers as people usually do.

CR # 464. If the person hiring himself out for the work forgets to include some of the optional matters in the prayer, proportionate with the amount of the optional matters left Out an amount from the payment must be deducted. CR # 465. If the person who has hired himself out is not sure whether he is supposed to do the lesser work or that which is more, he may assume that he is supposed to complete the lesser one. If the doubt is about the two works of different nature, as a precautionary measure, he should complete both of them.

CR # 466. It is necessary to identify the person on whose behalf the work is supposed to be done; at least intending that he is praying on behalf of the _ person whom the person finalizing the contract has kept in his mind. 7

CR # 467. If the contract says that what is required is to free the deceased from his responsibility, and someone volunteers to complete the whole work ;

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on behalf of the deceased before a time within which the person hiring himself out could complete the work, the contract will be considered annulled, otherwise, he will still deserve the equivalent of the payment that he was supposed to receive; if the contract says that the work must be done by

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the person hiring himself out, the contract will not be considered annulled and payment must be made according to the contract.

CR # 468. There is no harm to pray the contractual prayer in congregation either as an Imam or behind an Imam, provided, the congregation is well qualified. ’ CR # 469. If the contract says that the person who has hired himself out must do the work, and if he dies before the time within which he could complete the work, the contract will be considered annulled and his heirs must pay back an amount equivalent to the payment paid to the other party. If he dies after a time within which he could complete the work but did not do it, the heirs have to pay back to the other party an amount of the par value payable for the same work, even if they have to pay more than the original payment. If the contract does not say that the work must be done by the person hiring himself out, the heirs have to hire someone else for the work and pay him from the legacy as the other debts. CR # 470. One who has to pray or fast as Qada must do it without delay when he discovers the signs of his imminent death or is certain that if not now then he will not be able to do them in his life time. If he delays, it is necessary for him to make a will about them and after his death those work will be done on the basis of hiring one to do them and the payment will be made out of one third of his legacy. If one owes others something he must pay them without delay even if he knows that he is not going to die soon. If it is not done and if he has a legacy, he must make a will about his debts and appoint someone to execute his will after he dies. The debts will be paid off from the legacy.

CR # 471. If one hires himself out to pray the prayers of certain days on behalf of someone, but is not sure whether he is supposed to pray the prayers as those which one prays at home or those on a journey, or does not know whether he is supposed to pray a zuhr or ’asr, he has to pray both of them to make himself free of the obligation.

CR # 472 If it is known that a deceased had to pray some Qada, but it is not known whether he prayed them before his death or not, some one must be hired to pray them.

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CR # 473. If one hires himself out to pray a four Rak’at prayer between noon and sun-set, but does not pray until the time when it would be possible to pray only four Rak’ats before sun-set, within this time he must pray his own ’asr. The other party may annul the contract to get back the payment or ask for the par value for such work, although it may be more than the one paid to him. CR # 474. Because of a precautionary reason the person hiring himself out should be a just one at least when he reports that he has completed the work or at least a trustworthy one so that people will believe him.

SECTION Prayer

NO.

14

in Congregation

It is Mustahab to pray all obligatory prayers in congregation except the

prayer after Tawaf (walking around the holy House in Mecca seven times). It is a necessary Ehtiyat that the prayer after Tawaf should not be prayed in congregation. It is strongly recommended to pray the daily prayers in congregation, especially, those in their due times, particularly, the morning and ’isha prayers. The reward is great for the prayer in congregation. The Ahadith narrated in this matter are more than the recommendations for any other preferable worship act. CR # 475. It is necessary to pray the Friday and the prayers of the two Ids in

congregation, provided, all the conditions required exist. Congregation is one of the conditions for the validity of the above prayers. Besides these, congregation is not necessary for the other prayers. Sometimes it may, accidentally, become necessary such as because of a vow, shortness of time for prayers or because one himself does not know correct recitations, although he is able to learn them. CR # 476. Originally it is not lawful to pray any optional prayer in congregation, however, accidentally, such as because of a vow, they can also be prayed in congregation. Only the prayer of the two ’ids and the prayer for asking Allah to send down rain can be prayed in congregation. In the case of the two ’ids this only applies when the conditions required to make them obligatory do not exist.

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CR # 477. One is allowed to pray the daily prayers behind the Imam who is praying other obligatory prayers of any form or time, except the prayer of an unusual natural happening, the prayer for a dead person and the prayers of

*ids. CR # 478. One is not allowed to pray the prayers of Ehtiyat in congregation and the prayers that one prays as a precautionary measure to make sure that one has done his duty, such as when one is not sure whether he is supposed to pray as a person at home or as the one on a journey. In this case, he must pray both ways to make sure that he has fulfilled his duty. If both the Imam and the person praying behind him are in the same situation as that mentioned above, they may pray their prayers in congregation.

CR # 479. Besides the Friday and the two ’id prayers the minimum number required to form a congregation is two people; one as the Imam and the other one praying behind him even if the latter one is a women or a child. The Friday and the "Id prayers in congregation cannot be formed with less than five people including the Imam. CR # 480. A congregation can be formed when the people behind the Imam intend to pray behind him, considering him as the Imam, even if the Imam does not know about it. Without such intention from the people behind the Imam a congregation cannot come into being.

CR # 481. In the case of the Friday prayer, the prayers of the two ’ids and

when the Imam is praying a prayer again, the Imam must also make up his mind to lead the prayer as the Imam in the congregation.

CR # 482 The Imam must be a person identified to each one of the people praying behind him. CR # 483. If one doubts about his intention of joining the congregation, if he finds himself in a condition like that of the one joining the congregation according to necessary Ihtiyat he must complete his prayer as separate from congregation but if he finds himself in those act common for every one in congregation like sajdah etc. then he must not join and must pray individually, unless he comes to know that he is in the congregation and has not decided to separate himself from it, in which case, he may assume that he has joined the congregation.

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CR # 484. If one joins a congregation thinking that the Imam is a certain person, but later discovers that he is not the one of whom he was thinking, if the second Imam is not a qualified one, that person’s prayer, if something that invalidates a prayer takes place, will be void, otherwise, his congregation will be valid. If the second Imam would be a qualified one, both the prayer and congregation of that person will be valid. CR # 485. If after a prayer two people discover that during the prayer each of them had the intention of being an Imam, both people’s prayers will be valid. If they discover that both of them had the intention to pray behind the other, if their prayers are different from the prayer prayed individually, the prayers will be void.

CR # 486. Under normal conditions one is not allowed to change from praying behind one Imam to an other Imam. It is not an offense to do so if something happens to the Imam such as death, invalidity of Taharat or insanity in which case the people behind him may appoint someone else from among the people praying in that congregation, in his place. CR # 487. A person who is praying individually is not allowed to change his intention and prayer to those in congregation before completing the prayer which he is praying.

CR # 488. There is no harm to change one’s mind at any time from praying in congregation unless he had such an intention at the very beginning, in which case, it would be difficult to consider his congregation valid. CR # 489. If one decides to separate himself from the congregation before after the Imam recites Al-fatihah or the chapter, he must recite them from the very beginning but if it is after the time when the Imam has just finished the readings and has not yet assumed Rukw’ he does not have to recite them.

CR # 490. Once one has decided to separate himself from the congregation, he is not allowed to turn back. In the case of one who is not sure whether to separate himself or not and who then decides not to separate, he is allowed _ to stay in congregation. ) CR # 491. If one doubts whether he decided to separate himself from the congregation or not, he must assume that he did not decide so.

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CR # 492 It is not necessary that the intention of every one in the congregation must purely be for congregation alone. If anyone therein has joined it thinking that it is easier for him, still it will be valid, even though he

will not receive the reward of the congregation.

CR # 493. If one unknowingly decides to pray behind somebody who is praying a prayer that cannot be prayed in congregation, if he comes to know of the fact before doing anything that invalidates one’s prayer, it will be considered valid. The same rule applies if he completes his prayer without knowing anything about the situation unless something invalidating an individual’s prayer has taken place in between, in which case, his prayer will be void. CR # 494. A congregation can be joined from the time when the Imam stands up and starts the first Rak’at until he is in the Rukuw’ position. Any time during this period one can join the congregation. In joining the congregation when the Imam is already in the Rukw’ position it is necessary for one to reach that position before the Imam gets up therefrom.

CR # 495. If one proceeds to the Rukw’ position thinking that one will join the congregation before the Imam gets up from the position of Ruku’ and then discovers that he could not join him, his prayer will be void. The same rule applies if one doubts about such possibility at the beginning. CR # 496. One is allowed to try joining the Imam in the Rukw’. If he joins him properly, his prayer will be valid otherwise, it will be void. CR # 497. If one decides to join the congregation and says the Takbiratul Ehram but before one can move, the Imam gets up from the position in Ruku’, one may either continue his prayer individually or change it to an optional prayer, then join the congregation (when the Imam starts the next rakat).

CR # 498. If one finds the Imam saying the last Tashahhud, he is allowed to say Takbir, sit down and follow him for the rest of the prayer but without saying the ‘salams’. After the Imam’s prayer has been completed, the person joining must continue his prayer from Al-fatihah without any need to say Takbir again. In this way, he will receive the reward for the congregation. In the same way, one may join the congregation and follow the Imam for the

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rest of the prayer if the Imam is in the first Sajdah of the last Rak’at or is completing any of the parts after this Sajdah.

CR # 499. If one comes to a place where congregation is held and finds that before he may properly join the line of the congregation, the Imam will get up from the Rukv’, he is allowed to say the first Takbir where he is, assume

the position for Ruku’, move forward during the Rukw’ to join the line of the congregation properly and continue following the Imam in the next parts of the prayer. At the same time he may keep moving forward until he joins others praying in the congregation properly, regardless, he has to move forwards or to one of the sides. He may continue this even in the next Rak’at, provided, he does not miss. facing the direction of Qiblah all the time and nothing as a curtain comes between him and the congregation. This is a condition in the congregation that nothing must exist between the Imam and the people praying behind him. Another condition, in this case, is that the distance must not be such that it will prevent him from joining the congregation and that he must observe steadiness where it is required.

The

Conditions

(1) There must not be something between the Imam and ma’mum (the person praying behind the Imam) separating them from each other or between the ma’mums that might lead to the same result, regardless, the separating item is a curtain, a tree, a wall or something else.

CR # 500. It is not an offense if something in between is only about ten inches high. CR

# 501. If the Imam

is a male and the ma’mums are women or some of

them are females, it is not an offense if something exists as a separation between the Imam and the female ma’mums.

- CR # 502 It is Mustahab Ehtiyat that the material separating should not even ‘ be an something like glass which do not prevent people from seeing through. It is not an offense if something like a brook or a small path way would exist _ in between, as long as the separating area does not exceed the limit. (2) The ' place where the Imam stands must not be higher than the places of the | ma’mums. It is not an offense if the height is less than ten inches in the case

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of a sudden height, not in the form of a slope. There is no harm if the place of the ma’mum is higher than the place of the Imam, as long as they can still be considered one place. (3) The ma’mums must not be farther than one step from Imam and from each other, although it is Mustahab that there should be no distance at all between the standing place of the Imam and the place where a ma’mum places his forehead during the Sajdah, also between him and the person standing behind him. CR # 503. No one praying behind the Imam must stand more than one step away from the Imam or the ma’mum that joins him to the Imam. (4) The ma’mum must not stand ahead of the Imam, but there is no objection if they are in the same line as the Imam, provided, they are not taller than the Imam. CR # 504. It is a necessary Ehtiyat that if there is more than one person praying behind an Imam, they should all stand behind him. If the Imam is a female for the females, it is Ehtiyat that she should stand in the middle of the first line.

CR # 505. The above conditions are required at the very beginning tili the end of the congregation. If any of them would be missing in between, the congregation will be considered void. In the case of doubt about them, one has to assume that it was alright if he knew that at the beginning it was all right. If no certainty existed about a conditions before a doubt arises, one must find out and make sure that it is alright now. CR # 506 If after the prayer in congregation a doubt arises whether a condition required in congregation existed or not, if one knows that something invalidating The prayer prayed individually has taken place, he must pray it again if he unwittingly joined the congregation, otherwise, he must assume that it was valid. If he does not know of anything invalidating the prayer prayed individually, again he must assume that the prayer was valid, although it is a Mustahab Ehtiyat to pray again in both cases. CR # 507. The separation caused by the people who intend to join the congregation does not harm the prayer.

ISLAMIC LAWS CR # 508. before the separation about such

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If some of the people praying behind the Imam finish their prayer others such as the ones who are on a journey, they may cause a after their prayers are completed. Thus, one has to be careful a happening.

CR # 509. A separation caused by a small passage in between does not harm the prayer unless people are continuously passing there from. CR # 510. If there is some passage in between which only allows people in certain positions to see the people of the other line, the congregation will not be considered valid.

CR # 511. The congregational prayer of one who joins the congregation with the existence of a separation therein, which he does not know for some reason, is not valid. If he comes to know of the separation before doing anything that invalidates the prayer prayed individually, he has to complete it individually, and his prayer will be considered valid. CR # 512 A thin curtain behind which people’s images can be seen will also be considered as a separation.

CR # 513. The praying of a child who discerns good from bad will not be considered as a harmful separation in between, provided, one thinks that the

child’s prayer is valid. CR # 514. If the connecting passage with the Imam would be through a door, the walls on either sides of the door will not harm the validity of the congregation, as long as there is a proper connection through the door but the validity of the prayer of people on both sides of the door who do not see the row ahead of them is objectionable.

Conditions

for

the

Imam

Besides the belief in Islam, soundness of reason and being legitimately born the following conditions are required on the part of the Imam: (1) The Imam must be a male if the people praying behind him are males. A female can only become Imam for the females. (2) The Imam must be a just person, thus, one is not allowed to pray behind a law breaker.

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CR # 515. It is necessary to make sure by any means, that the Imam is a just person. One is not allowed to pray behind a person about whose justice one is not sure. (3) The pronunciation of the Imam must be correct and proper. CR # 516. It is not an offense for a person who pronounces better than the Imam to pray behind him if the pronunciation of the Imam can be considered valid and proper. CR # 517. A person who prays standing is not allowed to pray behind the one who can only pray sitting, and one who prays sitting is not allowed to pray behind the one who can only pray Lying down. There is no harm to pray behind a person who prays in the same position as him. A person who prays sitting or Lying down can become the Imam for the one who is praying in a Lying position. CR # 518. A person whose means of Taharat for a prayer is Tayammum or Wudu with bandage, that of in the condition of being unable to control his urine and feces, that of one experiencing irregular period Estihadah or one who has no choice but to pray with unclean clothes, is allowed to become the Imam for the congregation, and the people who have proper Taharat may pray behind such Imam. CR # 519. After prayer, if a person praying behind an Imam discovers that the Imam was missing some of the conditions required for the prayer or for the Imam, his prayer will only be considered valid if nothing invalidating the prayer prayed individually has taken place, otherwise, he has to pray it again. If he discovers this in the middle of the prayer, he must complete it in the first case (missing conditions about the prayer) and pray again in the second case (missing conditions about the Imam).

CR # 520. If there is a difference in view point between the Imam and the ma’mum, as regards the rules about the prayers because of their own Ejtihad or because of the decisions of the Mujtahids whom they follow, the ma’mum is not allowed to pray behind such Imam, provided, he knows that in fact the prayer of the Imam is not valid, otherwise, it would be valid. In the same way, if the difference between them would be because of their discernment of the objects around them, such as in the case, where the Imam believes a certain amount of water is clean and good for Wudu, while to the other person that water is unclean for Wudu or the Imam believes that a certain clothe isclean and good for prayer while the person believes that it is not clean, in the first

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case the person is not allowed to pray behind the Imam, but in the second case he is allowed to.

Rules

About

Congregation

CR # 521. People praying behind the Imam have to read all the readings except the recitation of Al-fatihah and the chapter in the first two Rak’ats.

CR # 522 It is necessary for the people praying behind the Imam to follow him in all the actions and the recitations during prayer. However, steadiness in the standing position is not necessary for the people praying behind when the Imam is reciting fatihah or the chapter after CR # 523. In the prayers where it is necessary not to recite Al-fatihah and the chapter aloud, according to Ihtiyat it is not allowed for the people praying behind the Imam to recite them at all, intending them to be part of prayer. It is better for them in the above case to say some Dhikr. In the first two Rak’ats of the prayers where it is necessary to recite Al-fatihah and the chapter aloud, if the person praying behind the Imam does not hear the voice of the Imam reciting them, he is allowed to recite them with the intention of their being part of the prayer. If one in the above case doubts whether he is hearing the voice of the Imam or of someone else; there is a strong reason that he is allowed to recite them, regardless of his reason for not hearing such as being deaf or the like.

CR # 524. If one joins the congregation when the Imam is in one of the two last Rak’ats, it is necessary for him to recite Al-fatihah and the chapter. If reciting the chapter will cause a delay which will prevent him from reaching the Imam in the Ruku’, he has to limit the recitation only to the Fatihah. In case, after the recitation of Al-fatiha, if it will be too late for him to reach the Imam in the Rukv’, it is a necessary Ihtiyat for him to pray individually. It is a Mustahab Ihtiyat not to join the congregation when one is not sure that after the recitation of Al-fatihah he will reach the Imam in the Rukw’ but rather wait until the Imam has completed the recitation and started to assume Rukv’, then join the congregation. CR # 525. It is necessary for the people praying behind the Imam to recite silently all the recitations that they may recite either obligatory or optional.

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To recite them aloud, intentionally, will cause their prayer to become void. If it is not intentional, but is because of a mistake or forgetfulness, the prayer will be valid. CR # 526. It is necessary for the people behind the Imam to follow him closely in all the acts of the prayer, not to go ahead of him. It is Ehtiyat and better that they should not do an act at the same time as the Imam. In the readings in the prayer it is not necessary to follow him, except for the Takbiratul Ehram which if said before the Imam, the prayer of the person saying it before the Imam will turn into that of the individual prayer. It is a necessary Ehtiyat that Takbir should not be said at the same time with the Imam. Also, it is not necessary not to proceed the Imam in reading the *Salam’ and it is not necessary to say it again if one said before the Imam he even may say it again after the Imam says it and if one says it before his reward will be less. CR # 527. If one intentionally disregards the rule of following the Imam, his prayer which he will have to complete individually will still be valid, but his congregation will be void. If he assumes Ruku’ before the Imam, his prayer will be void, unless he has recited Al-fatihah and the chapter by himself This refers to when he assumes Ruku’ while the Imam has not yet completed the recitations. According to Ehtiyat, the same applies if he assumes Rukw’ before the Imam when the Imam has completed the recitations.

CR # 528. If one, intentionally, assumes Rukw’ or Sajdah before the Imam, one has to pray individually, continuing from the place where he preceded the Imam. If he mistakenly assumes Rukw’ or Sajdah before the Imam, it is Ehtiyat that he should go back to join the Imam and then follow him thereafter. This time he does not need to say the Dhikr for the Rukuw’ or Sajdah again. CR # 529. If one,intentionally, gets up from the Sajdah or Rukw’ before the Imam and before saying the Dhikr therein, his prayer will be void. If it is not intentional, his prayer will be valid, but his congregation will be void. If he gets up before the Imam after saying the Dhikr therein intentionally, his prayer will be valid and he must return to Ruku‘ to join the Imam, and thereafter follow him properly. If he mistakenly gets up from Ruku’ or Sajdah, he has to go back again, if he does not go back again intentionally, his congregation will become void, he has to complete the prayer individually, but if he docs not go back again because of mistake, in this case, both his

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prayer and congregation will be valid. If he goes back to join the Imam but before he can reach the Imam by assuming the proper Rukuw’ the Imam gets up from it, his prayer will become void. CR # 530. If one raises his head from Sajdah, finding the Imam in the Sajdah and thinks that he is still in the first Sajdah and in order to follow him goes back to Sajdah but later finds out that it is Imam’s second Sajdah, everything wili be considered valid and he must continue. If he thinks that the Imam is in the second Sajdah and he goes for the second Sajdah; then comes to know that it is Imam’s first Sajdah, in this case, it will be considered following and everything will be considered valid, according to Ihtiyat in both cases he

should complete the prayer in congregation and pray it all over again. CR # 531. If the Imam mistakenly adds something like one Sajdah or Tashahhud whose being added does not harm the prayer, it is not necessary for the people to follow him in his mistake. If he mistakenly omits something of the nature mentioned above, the people have to complete it themselves. CR # 532 People are allowed to say more Dhikr than the Imam in the Ruku’ or Sajdah and may omit the Mustahab Dhikrs.

CR # 533. If the Imam disregards the steadiness in the sitting position after the second Sajdah of the second Rak’at because to him it is not necessary while according to the people behind him it is necessary, they must observe it. The same applies if the Imam disregards saying the readings in the third and the fourth Rak’ats for the second and the third time. CR # 534. If some one joins the congregation without knowing whether the Imam is in the first two Rak’ats or the two last ones, he is allowed to recite

the Fatihah and the chapter with the intention to obey Allah; if it is discovered later that the Imam was in the two last Rak’ats, his recitation will also considered proper, if he was, in fact, in the first two Rak’ats, the

recitation of the person joining would not be considered harmful to his prayer.

CR # 535. If one joins the congregation in the second Rak’at, he still does not need to recite anything. This Rak’at will be his first and he must follow the Imam for the rest of the prayer like Qunut and Tashahhud. It is Ehtiyat that during Tashahhud, in the above case, one should raise his knees from the ground and place one’s both palms on the ground, following the Imam

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until he stands up for the third Rak’at; then he too should stand up for his second Rak’at. When he is supposed to say Tashahhud for his third Rak’at while the Imam stands up for the fourth Rak’at, it will not harm his prayer to disregard following the Imam in continuing the Tashahhud in the sitting position when the Imam is not in that position. When he has to get up for the fourth Rak’at while the Imam is sitting to say Tashahhud for the last time in his prayer, it would be better for him to sit with his palms on the ground and knees raised, saying the Tashahhud, following the Imam until he completes Salam; this person then should stand up for his fourth Rak’at and complete the rest, or he may just separate himself from the congregation from the time the Imam starts saying the last Tashahhud. CR # 536. One is allowed to pray again in congregation, the prayer which one has already prayed, regardless, one is an Imam or one following the Imam. Also, one is allowed to pray again the prayer which one has already prayed in the congregation before. If both the Imam and ma’mum have prayed their prayers individually before, and now want to pray in congregation without another person who has not yet prayed his obligatory prayer to join them in the congregation, their congregation would be objectionable. CR # 537. If it is discovered, after the second prayer in the above case, that the first prayer was not valid, the second prayer will be considered enough for the prayer incumbent on them. CR # 538. One is not allowed to pray a prayer individually again unless one knows that the prayer was not correct. CR # 539. If the Imam starts the prayer believing that the time has come, but other people do not believe, they are not allowed to start their prayer behind him. CR # 540. If one is praying an optional prayer and a congregation starts; if he is afraid that he perhaps will not be able to join the congregation before completing the optional prayer, it is Mustahab for him to discontinue the optional prayer to join the congregational, even though in continuing the optional prayer he would only miss the first Takbir. He should discontinue it as soon as someone starts saying the Eqamah for the congregation. If his prayer is an obligatory one, he should change it into an optional one, completing it in two Rak’ats, then join the congregation. He may do as above

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if he is sure of not missing the congregation, otherwise, he is allowed to discontinue his prayer to join the congregation. CR # 541. If the Imam is not sure of his own just nature, the validity of the congregation would be open to objection. There is a strong reason that one is not allowed to pray behind such person. Apparently, he will not be considered a sinner in forming the congregation. CR # 542 If the person praying behind the Imam doubts after the second Sajdah of the Imam whether he has had both Sajdahs or only one of them, it is necessary for him to have another Sajdab if he has not already assumed the next Ruku’. CR # 543. One who finds an Imam aoe but does not know whether he is praying one of the daily prayers or an optional one, is not allowed to pray behind him in congregation. The same applies if he thinks perhaps the Imam is praying one of the daily prayers.

CR # 544. If one knows that the Imam is praying one of the obligatory prayers allowed to be prayed in congregation, but does not know it in particular, it is not an offense for him to pray behind him in congregation. CR # 545. Praying as an Imam is more virtuous than praying as a ma’mum. CR # 546. It is said that it is Mustahab for the Imam to stand in the middle of the line of the people praying behind him; that he should observe the condition of the weaker people as regards lengthening the prayer, except when the people want him to lengthen the prayer; that people behind him should listen to his voice when he is reciting something which is allowed to be recited aloud; that he should lengthen the Rukw’ if he feels that someone is trying to join the congregation, and that he should stand up to leave before the people behind him. CR # 547. If the ma’mum would be only one person, it is Mustahab for him to stand on the right side of the Imam, a little behind him, but if she is a woman, it is necessary to stand right behind her. If one man and woman are praying behind the Imam, the male should stand right behind the Imam and the woman behind the man. If they are more women they should line behind the line of the males. It is Mustahab that the people of more religious virtue should stand in the first line; the more virtuous among them should stand on

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their right side, for the right side is better than the left, and to be closer to the Imam is more virtuous than to be far away from him. Only in the prayer for a dead person is the last line behind more virtuous. It is Mustahab that the lines should be straight, and people therein shoulder to shoulder close to each other; that the place where people of the next line place their forehead should be very close to the standing place of the people in the line in front of them. When in Eqamah the seventh phrases are said, it is Mustahab for the people to stand up. When the Imam completes reciting Al-fatihah people should say Alhamdulellah. CR # 548. It is Makruh for one to stand alone when there is room among the lines; to start an optional prayer, especially, when Eqamah for the congregation has started; when the seventh phrase therein are said; to speak after it unless it is to bring order in the lines; and pray the prayer at home behind the one on a journey and vice verse.

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SECTION NO. 15 THE

PRAYER

ON A JOURNEY

CR # 549. On a journey one must not pray the last two Rak’ats of all the prayers consisting of four Rak’ats when the following conditions exists: (1) The decision to travel a distance of 44 kilometers one way or half of the same round trip. CR # SSO. If it is a round trip, it is necessary that one does not intend to stay at his destination for more than ten days. There is no offense if one spends some time less than ten days in between. CR # 551. If the distance is less than that mentioned above, one has to pray his prayers as if at home. The same applies if one doubts whether one completed the distance or is not sure about it. CR # 552. The following are ways to know whether the required distance was completed or not: (a) Certainty on natural bases. (b) A legally approved testimony, that is, the testimony of two just people. (c) Information given by some trustworthy people or even one trustworthy person.

CR # 553. In case, the witness contradict one another, it is necessary to pray as if at home. If searching to find out the exact distance is difficult, searching is not necessary. A person who doubts about the length of the distance required may either refer to a Mujtahid or pray both ways; as if at home, and as well as if on a journey. If he prays as if on a journey, if it is later discovered that he was right, his prayers will be valid.

CR # 554. If one on a journey prays as if on a journey thinking that it was the complete distance, and later discovers that it was not, he has to pray again. The same applies if the case is to the contrary.

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CR # 555. If during a journey one doubts whether the distance is the complete one or not, and during the journey discovers that it is the full distance, he has to pray as if on a journey, even if the rest of the distance is not a complete distance. CR # 556. If there are two ways to the destination; one less than the required distance and the other the full distance, one must act according to the way he travels. CR # 557. If one way to the destination is four Farsakh which is equal to half of the required distance and the other is less than the half, one has to pray on such a journey as if at home. CR # 558. The beginning of a journey starts from the boundary of the city or town where one lives. CR # 559. Continuity of the journey is not necessary for one considering as a traveller.

to be

CR # S60. If the distance of the journey takes a circular shape and half of the circle is equal to half of the required distance, it is necessary to pray as if on a journey.

CR # 561. One must have the intention of travelling from the very beginning of the required distance. If after travelling a certain distance one decides to travel the required distance, he would be like the one who has started from home: if the returning distance is a complete one independently, he has to pray as if on a journey when coming home.

CR # 562 If one does not know how far he will travel, he has to pray as if at home unless he comes to know that he will travel the required distance. CR # 563. It is not necessary that the decision for travelling be made independently. Thus, if a servant follows his master to the required distance, he has to pray as if on a journey. If he does not know about the intention of his master, he must ask his master about his intention. On the part of the master it is not necessary to inform his servant of his intention. If the servant comes to know the intention of his master in The middle of the journey, if the rest of the journey is the required distance he has to pray as if on a journey.

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CR # 564. If the servant intends to depart from the master before travelling the required distance or is not sure of travelling the whole distance, he must pray as if at home. The same applies if his journey happens to be conditional. If one thinks that while on the journey something will prevent one from continuing the journey, if his thought could be considered reasonable, he must pray as if at home, even though later he continues with the journey as planned. CR # 565. In case of travelling the required distance unintentionally, such as being taken away by train, one must still pray as if on a journey. (2) One must continue his intention of travelling. Thus, if one changes his intention during the c or is not sure of continuing, he has to pray as if at home, and it is a necessary Ehtiyat to pray again the prayers which had already been prayed as Qasr (as if on a journey) if the change take place before the time for a prayer expires (stop eating or drinking, if it is the days of the month of Ramadan, even if he had been eating and drinking before on that day). CR # 566. It is not necessary that the intention be continued for the same journey. If one changes his mind during the journey to travel to another direction which is also of the same length or with the distance already travelled completes the required distance, it would still be considered all right. The same applies if from the beginning one has the intention to travel to either one of the two places, and the distance to both of them would be equal to the distance that necessitates Qasr prayers.

CR # 567. If in the middle of the journey one becomes uncertain of whether to continue the journey or not and decides to continue; if the rest of the journey is the required distance and he has already started travelling, he must pray Qasr (as if on a journey), otherwise, he must pray as if at home (Tamam). If the uncertainty takes place in the middle of the required distance and he wants to go home before staying there for ten days, he must continue praying Qasr until he gets home. (3) One must not intend to stay somewhere, before travelling the required journey, for ten days. The same applies if one is not sure of whether he will do so or is not sure of whether he will pass through his home town before travelling the required distance. (4) The journey must be legal. In an illegal journey it is not allowed to pray Qasr, regardless of the purpose like travelling to steal, kill someone who cannot legally be killed, help an oppressor, or to ignore a duty such as paying one’s debts or giving up other obligation. If the purpose of the journey is not

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to give up obligations or doing some illegal thing but by chance they occur on one’s way like drinking wine or giving up one’s prayers, still it is necessary to pray Qasr.

CR # 568. On a legal journey if one takes a conveyance which he is not allowed to use, or walk on a land where he is not allowed lo walk, according to a strong reason he has to pray Qasr. CR # 569. It is necessary that the journey must at all time remain legal. If one changes one’s view in between to some illegal one, he has to pray Tamam (as if at home) thereafter but he does not have to pray the Qada of the prayers which he has already prayed from the beginning, provided, he has travelled the required distance, otherwise, according to a necessary Ehtiyat he should pray them again if there is still time. CR # 570. One who is returning from an illegal journey of the required distance to his home must pray Qasr, although it is Ihtiyat to pray both ways is such case. CR # 571. If the purpose of a journey is the combination of both legal and illegal purposes, he must pray as if at home unless the illegal purpose cannot independently be considered as the cause of the journey in which case he must pray Qasr.

CR # 572 The journey for useless hunting is also an illegal journey unless one intends to make his living thereby or intends it to be for business purposes. If on coming home the distance would be the required distance, he has to pray Qasr although it is Ihtiyat to pray both ways is such case. CR # 573. If an oppressor takes someone with him on a journey by force or the oppressed on the journey will be having a chance to defend himself, he must pray Qasr, otherwise, if he could be considered as the helper of the oppressor he has to pray as if at home (Tamam). If the journey of the oppressor would be legal, the person accompanying him has to pray Tamam and the oppressor will pray as if on a journey (Qasr). CR # 574. If one is not sure whether the journey is illegal or not, he must pray Qasr unless he knows that it previously was illegal or some other reason proves its illegality.

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CR # 575. If one intends to travel illegally during Ramadan and continue fasting, then changes his intention to make it a legal journey; if the change occurs before noon, he must discontinue his fast, if the rest of the journey is equal to the required distance, and he has already started it. He must not discontinue fasting right after the change in his intention before travelling. If the change takes place after noon, it is a necessary Ehtiyat to continue fasting, and later manage the Qada of the same. If one changes his intention in the above case from legal to illegal, if it is before noon and before eating or drinking anything, it is a necessary Ehtiyat to fast; then manage the Qada of the same. (5) That travelling is not one’s business, regardless, it would be one’s business, for one’s business needs or an introduction to one’s business.

CR # 576. One whose business is at a distance less than the required one but some-times travels the required distance, he must pray Qasr in the latter

case. CR # 577.People whose work is in traveling pray as at home except in their first journey. CR # 578. If travelling is one’s business for a certain time in the year, he has to pray as if at home only in those days in which travelling could be considered as his business. (6) One must not be one of those who move from one place to another with their homes, such as the nomads. Such people have to pray as if at home, not as if on a journey. If one of them travels somewhere other than their usual travelling ways and for other purpose, he has to pray as if on a journey. If any of such people would travel to look for grazing places for more than the required distance it is a necessary Ihtiyat to pray both ways even though praying as at home is enough if his household is not with him otherwise, he must pray as at home. Tourists who want to travel all the time without choosing a home land also have to pray as if at home as long as they have not chosen some place as their home.

(7) That one has not reached the place called the limit of Tarakhkhus, meaning the place which is a little away from one’s home town. It is the place where from one cannot distinguish the shape of the houses in the town in detail, nor can one hear the voice of Adhan from the mosques, not including

the voice coming from loud speakers. In case of the absence of one of them the other would be enough. Absence means that one does not know of the

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other, but if he knows that the other does not exist, it is Ehtiyat that he

should pray as if on a journey as well as if at home.

CR # 579. If one coming back from a journey reaches the place where from he can hear the Adhan, or can see the houses in detail, he must pray Tamam (as if at home). The places where on a journey one stays for ten days, or where one stays undecidedly for thirty days, are different from one’s home town. In such places one has to pray Qasr as soon as one starts the journey, although it is a Mustahab Ehtiyat to pray both ways, until one is within the area where from he can see the houses in detail or can hear Adhan from the town.

CR # 580. Soon after leaving one’s town for a journey one is not allowed to pray Qasr before passing the limit of Tarakhkhus. In the same way one is not allowed to pray Qasr after entering that limit when coming home. CR # 581. If one doubts about entering the above mentioned limit he must assume that since leaving the town he has not yet entered it. The same is true if one is coming home, one prays as Qasr, provided, one has not prayed as at home at the same place from both sides but in both cases one must investigate. CR # 582 In the case of Adhan, only the Adhan which is said on the limit of the town close to the traveller will be considered as a standard, not those said

towards the other limits of the town far away from the traveller, or the Adhan which is said from a place too high in the town.

CR # 583. If one believes that he has reached or has entered the limit of Tarakhkhus, and prays according to the duty which is incumbent on him; later discovers that his belief was wrong, he has to pray according to the actual duty which he was supposed to follow. If the discovery takes place after entering or reaching it, he has to pray according to his prior belief, otherwise, he has to pray the Qada if it was ignored at that time.

FACTORS

THAT

DISCONTINUE

A JOURNEY

(1) Home town; it is the place where one has decided to live if no reason would bother him to leave that place, regardless, it is the place where one

oo ie re 2) Nea

ISLAMIC LAWS

2

Pn

OF WORSHIP

303

was born or has selected to live. It is necessary that one must live somewhere for at least six months so that then it could be considered as one’s home town. CR # 584. One may have more than one home town, provided, one stays in each of them for some time during the year, and common sense would consider that he lives there considering it as his home town. CR # 585. To intend considering some place as one’s home town is not enough. It is necessary that common sense would consider that he lives there as if at his own home. CR # 586. The legal definition of home town is the one where one has bought some property and wants to stay for six months so that on coming there he could consider it as his home and worship as if at home. CR # 587. The intention to live in some place as one’s home town would be enough to consider it one’s home town even in a subordinated case like a wife and children who because of the husband or the father live in a town.

CR # 588. In the case of one’s uncertainty about continuing to live in one’s home town or leaving the same, to consider it still as one’s home town is objectionable. There is strong reason that it would be considered as his home town.

CR # 589. In the case of a home town it is necessary to intend to live there for a lifetime, otherwise, it cannot be considered a home town.

CR # 590. The places where people go for study and live for a long time, intending to return home can also be considered as a home town, not a real home town. Thus, whenever, coming back to such places, they have to pray as if at home whether they intend to stay there for another ten days or not. (2) To intend to stay for ten days at one place successively or knowing that one will remain there for ten days, even if it will not be out of his own choice.

CR # 591. It is necessary that the place where one intends to stay for ten days be one place. Thus, if he intends to stay for ten days at two different places, he has to pray Qasr. It is not necessary that one must not even go out of the boundary of the town. Besides, if one intends to go to the places such

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as gardens and other visiting places of the town where people of the town often go, provided such places are not farther than standard distance, this will not harm his intention of staying for ten days,and one will be allowed to pray as if at home, provided, it does not take him longer than one day time to go and come back. CR # 592 The intention to stay somewhere for ten days must be clear and unconditional. Thus, if one intends to stay until one’s work is finished, this will not be enough, even though his work may take him more than ten days; he did not know at the beginning how long it was going to take him. CR # 593. One who has already decided to stay for ten days at a certain place and who changes his mind in between; if he has prayed one prayer there in the Tamam form, as if at home, he must continue to pray in the same way until he starts on his journey. If he has not yet prayed even one prayer of four rak’ats, he has to pray Qasr, regardless, he has not prayed at ali, or has prayed prayers like Maghrib and morning prayers or has just started a prayer of four rak’ats but has not yet completed it. CR # 594. When ten days are completed, there is no need to intend staying on for another ten days; as long as one is there he must pray Tamam. CR # 595. It is not necessary that during the ten days one must be a mature person or have the conditions necessary for a responsible person, such as safety from mental-illness etc. If during the ten days a woman having her period recovers from the blood discharge or a child becomes mature, they have to pray Tamam. CR # 596. If one after intending to stay somewhere for ten days prays a prayer in the Tamam form (as if at home), then changes his mind about staying there for ten days, and in the meantime, also discovers that his prayer was not valid, in this case, he must begin praying Qasr. In case, one prays zuhr as Qasr, then decides to stay there for ten days; thus, prays ’asr after which he discovers that either one of the two prayers was not valid, again, he must assume himself as one on a journey, and the rules about staying ten days will no longer exist. If one prays with the intention to pray Tamam and after Salam doubts whether he prayed and said Salam after two Rak’ats, four Rak’ats or after three Rak’ats, one may assume that the rule about staying

ten days is valid and consider himself as staying there for ten days. In the same way as the above case, the rules of staying for ten days will be valid, if

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one changes his mind about staying after an obligatory Salam of a prayer consisting of four Rak’ats. CR # 597. Once the Eqamah (rules of staying for ten days) are set up, even on account of praying one prayer of four Rak’ats, there is no need to stay in

the town continuously until the ten days are completed. If one has to travel out of town, but for less than the required distance, he must continue praying Tamam until he decides to travel the fully required distance again.

If he travels from the town to a place out of town which is less than the required distance; if he intends to stay there for ten days or go back to the town or go somewhere else, he still has to continue with the rules of staying ten days until he decides to travel from the second place. If he intends to come back to the place where he had intended to stay ten days, then travels from there before ten days, he must pray Tamam while going, at the intended place, while coming back and at the place where he had intended to stay for ten days according to a strong reason but according to Ihtiyat one should pray both ways specially on his coming back and at the place where he wanted to stay for ten days. If such place is more than the standard distance than one must pray qasr

when going, when one is there and on his return. If he intends at the second place to travel from the place where he had intended to stay for ten days, and his return to the first place is purely because it is on his way, he must pray Qasr on the way and in the place where he had intended to stay for ten days. CR # 598. If one starts to pray and during it decides to stay there for ten days, he must complete that prayer as Tamam. If one decides to stay for ten days and starts praying as Tamam, but during it decides to change his mind, if is when he is in the third Ruku‘ he must complete as at home according to a Mustahab Ihtiyat then pray it Qasr all over again and after that as long as he is there he must pray both ways. CR # 599. If one changes one’s mind about staying some-where for ten days, then a doubt arises in his mind whether he changed his mind after praying a prayer of four Rak’ats or not, in this case, he must assume that no Tamam prayer was prayed.

RULES

OF TRAVELLING

306

CR # 600. If one decides to stay for ten days, then decides to fast, but later in the afternoon changes his mind about staying before having prayed one prayer of four Rak‘ats, he has to continue his fast which will be valid. the prayers must be prayed as Qasr. (3) That one who remains at a place on a journey undecided up to thirty days, without intending to stay there for ten days, must pray Qasr all through this time, and after the last day must pray as if at home (Tamam) until he starts another journey. CR # 601. If one remains undecided at one place for up to twenty nine days, then travels to another place where also he remains undecided for up to twenty nine days, and so on, he has to pray Qasr unless he intends to stay somewhere for ten days or remain undecided at one place up to thirty days. CR # 602. It would be difficult to replace one lunar month by thirty days mentioned in (3). However, there is strong reason that it will not replace the thirty days when it is less than thirty days.

RULES

OF

TRAVELLING

CR # 603. Optional daily prayers are not required to be prayed on a journey. However, to say the same about the two sitting Rak’ats after ’isha would be objectionable, but there is no harm to pray it in the hope that it will be accepted.

CR # 604. Of the daily obligatory prayers all that consist of four Rak’ats have to be cut in half by praying only the two first Rak’ats except at four places, that will be described later, where one has the choice of praying either Tamam or Qasr. CR # 605. On a journey, if one knowingly prays four Rak’ats, one’s prayer will be void which means that one has to pray again or pray the Qada if the time has passed. If one is totally ignorant of the rules about the journey, that is, one does not know that on a journey one has to pray Qasr, on him there will be no obligation. If one knows the general rules about travelling, but does not know some of the particularities like the rules about a person whose business is travelling etc. or does not know whether the distance he has travelled is the required distance, or has forgotten that he is on a journey or has forgotten that on a journey one is required to pray Qasr, in such cases, if

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one comes to know of the fact in time, one must pray his prayer again. If he comes to know of the fact or his mistake after the time has gone, there will be Qada on him according to Ihtiyat. CR # 608. The rules of fasting on a journey are just the same as those for prayer. Thus, to fast on a journey, knowingly that it is not allowed, will cause the fast to become void. However, in the case of ignorance, one’s fast will not be harmed, no matter one is ignorant of the very rules about travelling or of some of its particularities. CR # 607. The prayer of one who prays Qasr when he is required to pray Tamam would be void in all cases.

CR # 608. The Qada for the prayers missed at home must also be prayed as if at home, even if one prays them while on a journey and vice verse. One who is at home at the beginning of the time, for a prayer and on a journey at the end of the time for that prayer or vice verse, he has to observe the rules about prayers missed in such a situation according to his conditions at the end of the time for that prayer. CR # 609. One has the choice to pray either way in the following four places even though one may have travelled the required distance to pray Qasr: (a) The holy Mosque in Mecca. (b) The Mosque of the Prophet in Madina. (c) The Mosque ir the city of Kufa. (d) The Shrine of Imam Hussayn. It is better to pray Tamam in the above places. However, to pray Qasr would coincide

with Ehtiyat. The city of Mecca and Madina should be considered the same in regards to the above rule as the Mosque therein, not the cities of Kufa and Karbala.

CR # 610. One is not allowed to consider fasting of the same rule as the four places mentioned before. Thus, it is not permissible to fast there. CR # 611. Besides the four places mentioned above other holy places do not have such rules.

CR # 612 It is Mustahab on a journey to say after each prayer cut in half the Dhikr, read in the two last Rak’ats of an obligatory prayer, thirty times. CR # 613. The rule about the four places mentioned above only applies to the prayers prayed in time, not to the Qada.

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SOME OPTIONAL (1) THE PRAYERS OF ’IDS.

PRAYERS

In the absence of the Imams, from the family of the Prophet the prayers of the two ’ids; the ’id after the month of Ramadan and the one on the tenth of

Dhil hajj are not obligatory, but are only Mustahab and can be prayed in congregation or in the form of a prayer prayed individually. The conditions of the Friday prayer are not required in this case.

THE FORM OF THE ’ID PRAYER CR # 614. ’id prayers consist of two Rak’ats like the morning prayer, except that in the ’id prayers in the first Rak’at chapter 91 or 87 and in the second

Rak’at chapter 88 or 91 should be read after Sura-eFatiha. After the chapter five Takbirs should be said and after each Takbir this should be recited: ... and after the fifth recitation one more Takbir should be said. In the second Rak’at after the chapter four Takbir should be said followed by the same reading as in the first Rak’at and after the last recitation one more Takbir should be said as in the first Rak‘at. It is Ehtiyat that during the reading one should raise one’s hands in front of one’s face just as during Qunut. Any kind of Du‘a is enough for the Qunut in this prayer but it is better to recite the Du‘a which is usually read therein. CR # 615. The Imam should deliver two sermons after the prayer with an interval in between just as in Friday prayer. It is Ehtiyat to deliver the sermons but it is not necessary for people to be present during the sermons or listen to them. CR # 616_ In this prayer every one has to say and do all the reading and acts in the prayer except the Fatihah and the chapter which on being recited by the Imam would suffice the others.

CR # 617. If the condition that make this prayer obligatory do not exist, it would

be difficult to consider

it just as the other

optional prayers.

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Apparently, this prayer will be considered void in the case of a doubt about the number of its Rak‘ats. It would be necessary to have the Qada of a forgotten Sajdah therefrom, but it would be better to have the Sajdah for a part added because of a mistake if any.

CR # 618. If one doubts about not saying or doing a part from this prayer, he has to go back to complete the same if there is time and ignore it if the time for the same has gone. CR # 619. There is no Adhan or Eqamah in this prayer. However, it is Mustahab that the person saying Adhan should say three times ’Asalat’. CR # 620. The time for this prayer begins at sunrise and ends at noon. It is Mustahab to have a Ghusl before it, recite the readings therein aloud either being the Imam or praying individually, raise the hands when saying Takbir, have the Sajdahs on earth, pray on non-populated ground outside, except the city of Mecca where it is better to pray in the holy Mosque, go for this prayer walking barefoot, wear a white turban and to eat something before going for prayer, if it is the ’id after Ramadan, and after it if it is the ’id on tenth of Dhil Hajj.

(2) PRAYER

ON

FIRST

BURIAL

NIGHT

CR # 621. It is Mustahab to pray a two Rak’at prayer on the first night of the burial of a deceased. This prayer consists of two Rak’ats. According to Ehtiyat in the first Rak’at after Al-Fatihah verse 256 Ch. 2. should be read up to Khalidun. In the second Rak’at after Al-fatihah Ch. 97. should be read ten times. After Salam one should ask Allah to present the reward for this to the soul of the person who left this world that day, mentioning his name or saying ALLA HUMMA

SALLE ’ALA MUHAMMAD

WA ALE MUHAMMAD.

Lord, present the reward for this to the soul of the deceased.

CR # 622 There is no offense in hiring someone for this prayer, although it is better not to give the money as payment, rather as a gift with the condition that he will pray this prayer.

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CR # 623. If during this prayer one forgets to read some parts of the readings therein, the prayer will not be considered valid, and in case someone has hired himself out for the work he will not be allowed to use the money. CR # 624. The time for this prayer is any time on the first night of the burial of the deceased. If one remains unburied for several days, the time for this prayer would still be the first night of his burial. CR # 62S. If one who has hired himself out for this prayer cannot pray it on the first night of the burial, he is not allowed to use the money without the permission of the people of the deceased. In case, he cannot find them or does not know them, the money would be considered as the property of an unknown owner which cannot be used without the permission of the high authority in the Law.

(3) PRAYER

OF THE FIRST DAY OF EACH

MONTH.

CR # 626. This prayer consists of two Rak’ats in both Rak’ats after Al-fatihah chapter 112 should be recited thirty times. After the prayer something should be given in charity. This will be considered as if buying one’s safety for the whole month. Also, these verses should be recited after the prayer Ch. 11.6, 6.17, 10.107.

CR # 627. One is allowed to pray this prayer at any time during the first day of the month.

(4) Prayer in the Mosque of Kufa.

If one needs help from Allah he should pray a two Rak’at prayer in the Mosque of Kufa, then ask Allah for his needs. In each Rak’at after Al-Fatihah one should read these chapters 113, 114, 112, 109, 110, 87 and 97.

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RULES OF FASTING

SECTION NO. 1 FASTING THE INTENTION CR # 628. In fasting intention is a condition in the sense of obeying Allah thereby not in the sense of deciding and producing the fast or performing it as is required in the other worship acts. Fasting may come into being even if one is not able to use things that invalidate the fast or one has decided not to use them. In the case of inability the intention to fast is enough. When one has the intention not to use them such as in the case of a person who decides at night to fast the next day and on that day remains sleeping from morning to evening, still his fast will be valid. CR # 629. It is not necessary to exactly identify the fast in regard to its qualities such as its being a fast in time or a Qada (remedy) or other particularities of the worship acts.

CR # 630. As mentioned in prayer, if one is fasting on behalf of someone else, it is necessary to intend and complete it on behalf of that person and as one’s own obligation in the matter. CR # 631. It is not necessary to know all the matters invalidating the fast, in detail, a general idea of the same would be enough. CR # 632 In the month of Ramadan validity of other fasts is not free from objection; thus, fasting other fasts in this month will not be considered valid, except in the case of one who does not know this rule or has forgotten it. In such a case, his fast will be good for Ramadan, not for the one which he intended it to be.

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CR # 633. In the month of Ramadan there is no need to mention that one will fast the next day because it will be one of the days of the month; thus, if

one intends to fast a legal one the next day, it will be enough for the fast of the day of Ramadan instead. If one decides to fast the next day without specifying it as ‘lawful fast’, it will not be good for Ramadan. The same applies to all other obligatory fasts. However, in the optional fasts this is not required and only the intention of obeying Allah thereby would be enough, provided, one does not have to manage the Qada of a fast incumbent on him at that time. CR # 634. The time to decide about fasting an obligatory fast is before the dawn of the day at which time fasting starts. This applies to the fast of a known nature. In the case of the obligatory fast of unspecified timing, the time of intention ends at noon even if the time left for the same is not very long. For instance, if one at night does not have any intention of fasting the next day but before noon next day he realizes that he has to fast a certain fast and decides to fast, it will be considered enough. In the optional fasts the time for intention continues up to a time before sunset within which one would be able to make his intention. CR # 635. For the whole month of Ramadan one intention to fast at the

beginning is enough.

CR # 636. If one does not formally meet the condition of intention about the fasting in the month of Ramadan because of forgetting either about the rule or that it is Ramadan or ignorance of both, and in the mean time nothing invalidating the fast takes place from him, in this case, renewing his intention before the noon time will be enough and valid. CR # 637. To fast, on a day when it is not exactly known whether it is the last day of the month before Ramadan or the first day of Ramadan, with the intention of fasting it as the last day of the last month before Ramadan or as an optional fast or a Qada will suffice for Ramadan, in case, it happens to be the first day of Ramadan. In such a case if one discovers this before noon he must simply renew his intention. If one from the beginning intends to fast it as the fast of the month of Ramadan, his fast will not be considered valid. If

he fasted with the intention of fulfilling a duty apparently, it will be valid. If one fasts, in the above that if it is the last day of the last month if will be for the first day of Ramadan, it will be for Ramadan, in

that he in fact owes, case, with the intention that purpose, if it will be this case, his fast will be

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void. If one has no intention of fasting the next day, then discovers that it is the first day of Ramadan or any other day of the same; if he discovers it before noon, he has to have an intention and later manage a Qada for the same, but if he discovers it after noon time, he has to abstain from the things

invalidating the fast; later manage a Qada for that day. CR # 638. It is necessary to continue one’s intention throughout the day. If one intends to discontinue or is uncertain of fasting, in all cases, his fast will be void, according to Ihtiyat. If one is uncertain in his intention because of his doubt about the validity of his fast, his fast, will be valid. All these apply to the fasts of a known nature in regards to timing and quality. In the fasts that are not such, none of the situation above will harm it if one renews one’s intention before noon time. ; CR # 639. One is not allowed to change one’s mind from one kind of fast to another if this will cause one to miss the time for the new one, otherwise, this will not be harmful.

SECTION NO. 2 THINGS INVALIDATING THE FAST (1) To Drink and eat anything or even something which people do not usually use for food or drink. (2) Sexual intercourse even with a dead person or an animal, according to a necessary Ehtiyat. If one decides to have sexual intercourse but is not sure whether it took place or not, his fast will still be void. However, Kaffarah (expiation) will be incumbent on him. If one is playing with one’s wife without the intention of having sex, and along the way, glans penis disappears in one of the outlets this does not harm one’s fast as long as there is no discharge.

(3) To ascribe a lie to Allah or to the Prophets and the Imams; also, according to Ehtiyat the Prophet’s daughter, Fatimah Al-Zahra, regardless, it concerns a worldly thing or a religious one. If one thinks that the matter and report ascribed to them is true but in fact it happens to be false, this does not harm one’s fast, but if one does it with the intention of ascribing a lie to them, and in fact, it is not a lie, his fast will become invalid according to Thtiyat.

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CR # 640. If one tells a lie of the above nature without addressing anyone or addressing those who do not understand him, in this case, it would be difficult to consider his fast as void. However, precaution should be observed.

(4) To immerse one’s head in water totally or gradually, but it is not an offense to have a part of the head in the water at different times while the other parts are out side. Also, it is not an offense in keeping one’s whole head immersed in water, if the head is covered with something that prevents water from reaching the head. CR # (640a) According to a necessary Ihtiyat one must not immerse his head in impure water like muddy discolored water.

CR # 641. If one dives into the water intending to have an obligatory Ghusl knowing that he is fasting, if the fast is one of a limited time like fasting of Ramadan, both the fast and Ghusl will be void. If fast is Mustahab or of the

ones with unlimited time or the fast is an optional one, only the fast will be void, not the Ghusl. If it is done because of forgetfulness, the fast and Ghusl

will both be valid. (5) To intentionally let thick dust reach inside one’s throat, regardless such dust is of edible or inedible substances. It is a necessary Ihtiyat not to let thin dust reach one’s throat. If it is difficult to avoid dust from reaching one’s throat, it will not be harmful. According to Ehtiyat, smoke has the same rule

as dust. (6) To intentionally remain without Ghusl until dawn after a seminal discharge in one’s dream or because of sex. This rule only applies to the fast in the month of Ramadan and the Qada for the same and according to necessary Ihtiayt also to obligatory fasting of limited time.

CR # 642 Because of a strong reason, if the above situation takes place unintentionally, it will not harm the fast of the month of Ramadan as well as other obligatory fasts of a limited time except the Qada of Ramadan, even if its time becomes limited in shortness. ; CR # 643. If one during the night makes it necessary for himself to have a Ghusl because of having sex or seminal discharge at a time when he can have no Ghusl before dawn, his fast will be considered void. If it is possible for him to have a Tayammum, it will be necessary for him to have it and manage

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for the Qada of the fast, according to Ehtiyat. If he ignores Tayammum, he has to manage the Qada of the same and the expiation. CR # 645. If one forgets to have Ghusl at night in the month of Ramadan, and days later discovers that he had to have Ghusi, his fast will be void and he will have to manage the Qada of the same. This rule applies to the fast of Ramadan alone, although it is a Mustahab Ehtiyat to observe it in the other obligatory fasts too. The Ghusl for period or child birth does not have the same effect as the one mentioned, although it is a Mustahab Ehtiyat to

consider them as the same. CR # 646. If it is necessary to have a Ghusl during the night, but is not possible before the dawn, it is necessary to have Tayammum instead. If one — ignores Tayammum, his fast will be void, if he manages for the Tayammum, it would be necessary for him to stay awake until dawn. The latter case is based on Ehtiyat. CR # 647. If one thinks that there is still enough time to have sex and a Ghusl, but later discovers that this was not so, nothing will be incumbent on

him if he has made Tayammum as replacement for ghusl. It would be Ehtiyat to have the Qada for the fast. CR # 648. The rule about the Ghusl in the case of women for periods and child birth is the same as that mentioned in No. 6. If they become clean in a time within which they can manage neither Ghus! or Tayammum, or if they do not know that they have become clean before dawn, their fast will be valid the rule applies to fast of the month of Ramadan also its Qada and to all the obligatory fasts of definite time according to necessary Thtiyat.. CR # 649. In the case of a woman experiencing the maximum stage of an irregular period one condition for the validity of her fast is that she must have a Ghusl for her morning prayer, the zuhr, ’asr and the night before, according to Ehtiyat. If she ignores any of the Ghusls, her fast will be void. It is not necessary for her to have the Ghusl for the morning prayer before dawn. The Ghusl taken before dawn will not be enough for the morning prayer unless it is completed with the appearance of dawn.

CR # 650. If it becomes necessary for one to have Ghusl at night in the month of Ramadan, but one sleeps until dawn, unaware that he has to do ghusl before dawn, without Ghusl, if one did so intending to have Ghusl

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knowing or having the habit to wake up before dawn he must do the Qada for that day according to necessary Ihtiyat. If a person who must do ghusl sleeps in the night of Ramadan and then wakes up if he knows or it is his habit of wake up again before dawn if he sleeps again with the intention to wake up for ghusl before dawn but did not wake up before dawn he must do qada for the fast of the next day but if he woke up after the second time sleeping and went to sleep for the third time and did not wake up before dawn to do ghusl he must do qada and Kaffarah for the fast of the next day. It is necessary to count the sleep in which one gets a wet dream as the first sleep according to a necessary Ihtiyat.If one sleeps after waking up from such sleep knowing that he will wake up or that it is his habit to wake up with the intention to do ghusl after waking up but his sleep goes to dawn he must do Qada according to a necessary Ihtiyat. But if he wakes up from the second sleep and goes to sleep for the third sleep knowing or it is his habit to wake up before dawn and with the intention to do ghusl after waking up but remains asleep until dawn he must do qada and according to a necessary Ihtiyat kaffarah also. CR # 651. To sleep for the first time and a second one is allowed if one has the habit of waking up and thinks that he will wake up, although it is a necessary Ehtiyat not to sleep if one does not have the habit of waking up. To sleep a third time must be avoided in all cases, according to Ehtiyat.

CR # 652 If one experiences a seminal discharge in a dream during the day in the month of Ramadan, it is not necessary for him to rush for the Ghusl; he is allowed to urinate, even though he knows That some semen left inside the urinary track may come out. If he has had the Ghus! before urinating, it is Ehtiyat for him not to urinate until after Maghrib. CR # 653. The sleep in which one experiences a discharge is not considered the first sleep as mentioned. The first sleep is the one which takes place after one comes to know of a discharge. CR # 654. The rule about sleeping for the fourth or fifth time is the same as that about the third time.

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CR # 655. The rule about the Ghusl for periods or child birth is different from the one because of a semen discharge or sex. Thus, the fast of the women who have to have Ghusl because of a period or child birth will be valid if they have not ignored the Ghusl out of laziness even if they remain sleeping after a second or third time. (7) Seminal discharge because of one’s acting such after which a discharge usually follows when one thinks that it will happen and is not confident of not experiencing it. If one is confident that there will be no discharge or it takes place without anything done, the fast will be valid. (8) To have Enema with liquid. It is not an offense to have Enema with solid materials, as it also applies to things entering the body, not from the mouth which cannot be considered eating or drinking like applying medicine to a wound or something pierced into the body. If food is entered into the body through some way other than that of the mouth, this will be — considered as eating and drinking. The same applies to entering food or drink through the nostrils. There is no offense in injecting medicine into the arms or thighs, or using eye or ear drops. CR # 656. It is not permissible to swallow the substance that comes out from the chest after coughing or that which comes from the nose, when they reach in the mouth. This rule is based on Ehtiyat. CR # 657. It is not an offense to swallow the saliva, even if it is collected in

the mouth intentionally or by thinking of juicy things. (9) To vomit intentionally even if there is a need for it to relieve the stomach ache. There is no offense if the vomiting is not intentional. ‘CR # 658 If because of belching something comes out, then forcefully goes back, this will not harm the fast. Once it has reached the mouth, to swallow

it, intentionally, will invalidate the fast and one has to expiate for it too. CR # 659. If one eats something at night that might cause vomiting, his fast will be void, even though he may not vomit afterwards. The same applies to the obligatory fast of an unspecified timing, according to Ehtiyat, if vomiting is the only way to get it out of the stomach. If vomiting is not the only way out for it, the fast will be valid unless vomiting takes place intentionally. CR # 660. Chewing food for a baby or tasting something which does not reach the throat does not harm one’s fast unless something is swallowed intentionalfy.

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CR # 661. It is Makruh for a fasting person to kiss or play with his wife unless he is sure that there will be no discharge. If one intends to have a discharge, it invalidates his fast according to ihtiyat, even if there will be no discharge; he has intended to break his fast. It is also Makruh to use eye shadow which has a taste and may reach one’s throat. It is also Makruh to take blood from one’s body which may cause weakness, smell any sweet smelling plant, put on wet cloths, for a woman to sit in water, to take Enema with solid materials, pull out a tooth, make one’s mouth

bleed, brush the teeth with a fresh twig, take water into the mouth for no reason, and compose and recite poetry unless it is in praise of the Imams or in mourning for them. It is narrated that when you fast keep your tongue safe from telling lies and your eyes from illegal glances. Do not quarrel with each other; avoid jealousy and backbiting, lies and mingling with women, opposing each other angrily, abusing and calling bad names, oppressing, silliness, disappointing people and ignoring Allah. CR # 662 The above mentioned factors invalidating the fast only invalidate it when they take place or are used intentionally, regardless, the person is ignorant of the rule or the object, or it is because of his inability or his short coming; they invalidate the fast, even if a person believes that they are not invalidating. In the case of one’s short-comings to learn Kaffarah is obligatory according to Ihtiyat.

CR # 663. If one is forced to invalidate his fast by using one of the invalidating things, his fast will become void. The same applies to the situation when one must not fast because of Taqiyah, (fear of the people who may harm one on account of one’s fasting or because their law requires one not to fast, such as the day which they think is ’id or they believe so). In this case, it is necessary not to fast, but Qada will be incumbent on that person. CR # 664. If one needs to drink because of life threatening thirst which he can no longer bear, he may drink to the extent that he needs. His fast will be valid and he has to avoid other invalidating things and more water until sun set if it is the month of Ramadan. In other fasts this is not necessary.

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EXPIATION CR # 665. Expiation is due when the fast is invalidated by one of the invalidating factors, such fasts are like that of Ramadan, Qada after the noon

time, and the fast because of a specified vow. CR # 666. Expiation is due when one knows about it. If one is ignorant of the fact, no expiation will be incumbent on him, even if it is because of his shortcoming that he did not know it.

CR # 667. The expiation for one day of the month of Ramadan is either to set free a slave, or feed sixty poor people or fast two consecutive months. Each poor should be given three fourths of a Kilo of food. CR # 668. The expiation for the Qada of Ramadan, if invalidated after the noon time is to feed ten poor people as mentioned before or fast for three days. CR # 6069. The expiation for the fast of a specified vow is to set free a slave, or fast for two continuous months, or feed sixty destitute people.

CR # 670. The number of expiations is equal to the number of violations in two days except in the case of sex and causing a seminal discharge in which case the number of expiations is equal to the number of violations in one day according to a necessary Ihtiyat. CR # 671. One who can manage for none of the three alternatives mentioned above as expiation, must seek forgiveness from Allah, even only once, and according to a necessary Ehtiyat manage for the expiation when it is possible for him. CR # 672 If the fast is invalidated by an illegal factor (unlawful to do even while not fasting), the expiation for it must be all the three alternatives mentioned above, according to Ehtiyat. CR # 673. If one forces his wife tc have sex in the month of Ramadan,

expiation for two people will be incumbent on him.

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CR # 674. If one knows that something invalidating the fast has taken place but is not sure whether this would make it necessary for him to manage for a

Qada only or the expiation too, no expiation will be incumbent on him. If one knows that he has given-up a number of days of fasting but does not know the

exact number, he has to manage for the expiation of the days which are exactly known to him. If one doubts whether the invalidating factor was legal or illegal, it would be sufficient to manage for only one of the alternatives as the expiation. If one doubts whether the invalidated fast was a day of the month of Ramadan or its Qada and whether the invalidating factor took place before noon, no expiation will be incumbent on him. If the invalidating factor took place after noon time, feeding sixty poor people would suffice as the expiation. CR # 675. If one invalidates his fast intentionally, before noon and in the afternoon starts a journey, he still has to manage for the expiation.

CR # 676. If the husband is not fasting for some legal reason and he forces his fasting wife to have sex, he will not be obliged to pay the expiation for her, although he has committed a sin. No expiation will be incumbent on her either. CR # 677. One is allowed to pay on behalf of a deceased the expiation for fasting or other reason. To pay the expiation on behalf of a living person is not free from objection.

CR # 678. There is no time limit for the payment of the expiation, but the delay must not be such that could be considered a disregard of the CR # 679. Feeding the poor could be carried out by either feeding them or giving to each one three quarters of a kilo of food. Any kind of food which can be called food is sufficient. In the expiation for swearing it is Ehtiyat to give only wheat or wheat flour or wheat bread. CR # 680. One is not allowed to feed one person several times or give him more than three quarters of a kilo of food as expiation. CR # 681. If a poor has dependents, it is permissible to give the expiation to them, count each one as one poor person, and let their guardian or proxy to act on their behalf. The food will become their property; no one will be

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allowed to use it without their permission, if they are mature, if not, their

guardian will use it for them. _CR # 682 A wife whose husband maintains her cannot be considered poor, and she cannot receive food for expiation unless she needs it for her expenses not incumbent on her husband.

CR # 683. As soon as the food is given to the poor, the person giving the expiation will be considered free of his duty. After the food has been given to the poor, it could be bought back from him by the person paying the expiation. CR # 684. The following are cases wheré only Qada is necessary, not the expiation:

(a) The case mentioned in No. 6. (b) When the fast is invalidated by discontinuing one’s intention without the use of any of the invalidating factors. (c) When a compulsory Ghusl is not done for more than a day because of forgetfulness. (d) When one uses something to invalidate the fast after dawn without observing the timing. If there were enough signs showing the coming of the dawn, he has to manage for both Qada and expiation. If one did observe the timing, but came to believe that it was still night, no Qada will be incumbent on him. This refers to fasting in Ramadan. All the other fasts, obligatory or optional will be considered void.

(e) Eating or drinking( for one’s being sure that it is time) before the proper sun set because of the darkness which may make one think it is night with no clouds in the sky. If there are clouds in the sky, no Qada and expiation will be incumbent on him. It is Ehtiyat not to consider other reasons in the sky as clouds for other factors causing darkness in the sky are not free from objection. CR # 685. If one is not sure about the proper timing of sun set, he is not allowed to eat or drink. If he eats, he will be considered as having committed a sin; both Qada and expiation will be incumbent on him unless it is

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discovered later that itwas the proper time to eat or drink. The same rule applies when there are enough sign to indicate that it is not yet the proper sunset but one eats or drinks, then it is discovered that it was time to eat or

drink. If there are enough signs indicating that it is the proper time to eat or drink or one is certain of it; and one accordingly eats or drinks, there will be no expiation incumbent on him. If later the contrary is discovered, only Qada will be incumbent on him. (f) Taking water into one’s mouth which may, unintentionally, pass one’s throat. In this case only Qada will be due. If this happens because of forgetfulness, there will be no Qada either. CR # 686. Apparently, the above rule applies to all kinds of fasting. (g) An unintentional discharge of semen by romancing with one’s wife, provided, one did not intend it from the beginning and it was not his habit either. In this case, only Qada will be incumbent on him. This applies only when one thinks that a discharge may take place, but if one is confident that there will be no discharge; by chance a discharge takes place, apparently, not even Qada will be incumbent on him.

CONDITIONS FOR FASTING (1) Belief in Islam. (2) Mental Soundness. (3) Cleanliness from menstruation and the blood discharge of child birth.

CR # 687. If during the day one of the above conditions may come into being, one’s fast will be considered void; the same is true if a condition required would be missing during the day. (4) One must not be on a journey, as mentioned before, with the knowledge of the rule about it except the following cases (when the rules of journey do not apply): (a) The three days of fasting for the one who has not managed for a sacrificial offering during Hajj. (b) The eighteen days of fasting which are an expiation for leaving ’arafat before sunset during Hajj. (c) The fast which becomes obligatory because of a vow of a specified time which may take place on a journey. (5) That one has not remained sleeping without having Ghusl after having sex or seminal discharge or having Ghusl for menstruation and child birth. CR # 688. The fast of the traveller who docs not know the rule about fasting on a journey will be considered valid unless he later comes to know of the

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rule. The fast of the person who has forgotten the rule about fasting on journey will not be considered valid.

CR # 689. The fast of a person who has decided to stay somewhere for ten days during his journey or that of those whose journey is not legal will be considered valid. CR # 690. The fast of an ailing person is not valid. One example is sore eyes; if fasting may increase such illness or prevent improvement. The extent of facing difficulty which invalidate one’s fast is that which commonly people do not want to suffer. No matter whether one is certain that fasting is harmful or only thinks about it, as long as his idea is reasonable and causes fear of facing difficulty, his fast will not be valid. The fast of a healthy person who is afraid of fasting because it will cause him to face hardships also is not valid. The fast of a ailing person which does not cause him to face hardships will be considered valid.

CR # 691. Weakness caused by fasting will not be considered as invalidating one’s fast unless it causes great difficulty, in which case one is allowed to eat, then manage the Qada later on. The same rule applies if fasting prevents one from earning his living when he has no other way to live or from working because of thirst. In the latter case it is Ehtiyat to drink only to the extent that is needed and avoid eating or drinking any more. CR # 692 If one believing that fasting will not harm him, fasts and later discovers that fasting is harmful for him, in this case, the validity of his fast will be open to objection. If one despite knowing or fearing that the fast may harm his health, it will be void, unless his intention is only to obey Allah and or later discovers that fasting did not harm him.

CR # 693. The report of a physician which may make one almost certain of facing hardships because of fasting will also be considered enough reason for one not to fast, especially, if the physician is an expert, provided, one is not sure of his mistake. One is not allowed to follow the report of the physician in cases other than those mentioned above. CR # 694. A person who recovers before noon time, and has not yet done anything that invalidates the fast, if he decides to fast, it will not be valid. He will not be considered as a sinner if he does not avoid the invalidating things

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for the rest of the day. It is a Mustahab Ehtiyat for him to avoid invalidating things for the rest of the day.

CR # 695. The fast of a child, as the rest of his other worships will be considered valid. CR # 696. One is not allowed to fast an optional one if some obligatory fast is incumbent on him, such as the Qada of Ramadan. If one fasts an optional fast and has forgotten that there is some obligatory fast incumbent on him, if he comes to know of the fact afterwards, his fast will be valid. One is allowed

to fast an optional fast if one has hired oneself out to fast on behalf of someone else. The same applies if he hires himself out while some obligatory fast of his own is incumbent on him. CR # 697. If a child becomes mature during a fasting day in which he has fasted an optional fast, it is not necessary for him to complete the

fast even if this takes place in the afternoon, although it is a Mustahab Ehtiyat to complete it. CR # 698. If one starts to travel before noon, it is necessary not to fast after travelling the distance called limit of permissibility, Tarakhkhus. if one invalidates his fast before reaching such a limit He must pay expiation according to a necessary Ihtiyat. If he starts the journey after noon time, it will be necessary to complete fasting the whole day. If one returns home from a journey or arrives at the place where he intends to stay for ten days, or it is before noon and he has not yet done any of the things invalidating the fast, it will be necessary for him to fast. If it is after noon time or if he has already done things that invalidate the fast, it is not necessary for him to fast, although it will be Mustahab for him to avoid things invalidating fast until sunset.

CR # 699. A journey starts from the town where one lives and ends at the same place. One is not allowed to do things that invalidates the fast before reaching the limit of Tarakh-khus as mentioned in the rules about travelling. If one does something that invalidates the fast before reaching the limit of Tarakh-khus knowing the rule about it must pay the expiation for it. CR # 700. One is allowed to travel during the month of Ramadan even if it is to avoid fasting. It is Makruh unless it is for Hajj or ’umarah or to serve in

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the army of the Islamic government, or to save a life or it is after the third day of the month of Ramadan. If some specified obligatory incumbent on someone, he is allowed to travel even if it may cause miss the fast; it is not necessary for him to decide to stay somewhere journey for ten days.

AZo

twenty fast is him to on his

CR # 701. During the month of Ramadan it is allowed for a traveller to eat and drink to the full capacity while on a journey or have sex during the day although it would be Makruh; thus it would be a Mustahab Ehtiyat not to do so, especially sex.

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CR # 702. Old people are not required to fast. The same applies to those who cannot fast because of their suffering from thirst or because fasting is very difficult for them. Old people have to pay a ransom of three quarters of a kilo of food for each day. Old people have to have Qada if they can manage it after Ramadan according to Ihtiyat. It is a necessary for those who cannot fast because of the hardship of thirst in fasting to have Qada if it is possible for them.

CR # 703. Pregnant women whom fasting may harm or whose child may be harmed or who will not be able to breast-feed the baby, do not have to fast,

but Qada will be incumbent on them, as well as the ransom of three quarters of a kilo. To feed a person will not be enough for it. CR # 704. In the case of a woman breast-feeding a baby it does not matter whether the baby is her own or of someone else; the woman will be exempt from fasting only when no one else is available to breast-feed the baby.

QADA

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CR # 705. It is necessary to have the Qada of the fast missed because of menstruation, child birth, passing the time asleep and drunk or incorrect fasting.

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CR # 706. If one doubts whether he fasted the other day or not, he must assume that it took place. If one is not sure of the number of the fasts missed, he may assume the lesser number.

CR # 707. It is not necessary to manage for the Qada of the fasting of Ramadan immediately, although it is Ehtiyat not to delay it up to the next Ramadan. If several days are missed from one month, there is no need to observe a certain order in the Qada for the same. If one has to fast the Qada for two or more complete Ramadan missed, it is Ehtiyat to fast the Qada of the second Ramadan before the first for it should be completed before the coming of the third Ramadan. If he starts to fast the Qada of the first Ramadan, for the second Ramadan which will enter the second year a ransom will be incumbent on him for each day as mentioned before. CR # 708. No proper order is required in fasting if several kinds of fasting would be incumbent on someone. He may fast any of them first.

CR # 709. If one misses several days of fasting in the month of Ramadan because of sickness and dies before recovering from it, there will be no Qada incumbent on him. The same rule applies if one dies during a menstruation period or child birth or after it within such a time as was not possible to fast. CR # 710. If one cannot fast during Ramadan because of an ailment which continues to the next Ramadan, no Qada will be incumbent on him for the

same, but he has to pay a ransom of a three quarters of a kilo of food for each day. Qada will not be considered enough for the ransom. If one misses fasting because of some reason other than ailment, it will be necessary for him to fast the Qada for the same and pay the 3/1 Kilo food for each day as ransom, according to a necessary Ehtiyat.

CR # 711. If the fasting of Ramadan is missed for some ailment that goes away after Ramadan, or reasonable cause or for an intentional reason and the Qada is not managed until the coming Ramadan, it is a necessary Ihtiyat to have the Qada and pay the ransom. If one had intended to fast before the coming Ramadan but because of some reason could not manage, Qada will be a necessary, Ehtiyat, also the ’Fidyah’, ransom.

CR # 712. If the ailment continues up to three Ramadans, the ransom will be necessary for the first and the second, if it goes on to the fourth one, there will be a ransom for the third and so on.

oer

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CR # 713. It is not an offense to give the ransom of several days to one person. CR # 714. The ransom incumbent on a slave is not the duty of the master to pay nor it is his duty to pay the ransom incumbent on the wife or any of his dependents or guests. CR # 715. It is not enough to pay the price of a ransom which is food, and the same applies to the expiations.

CR # 716. It is not an offense to discontinue an optional fast even after noon time, but one is not allowed to discontinue the Qada of Ramadan after noon time if the Qada is one’s own duty, for in doing so, as was mentioned, expiation will also become incumbent on him. If it is before noon, it will be of

no offense to discontinue, if there is still enough time left for the same. In the case of the obligatory fasts other than the Qada of Ramadan one is allowed to discontinue any time during the day, although it would be Ehtiyat not to do SO. CR # 717. The rule about the one who is having Qada for himself is different from that about one who is having Qada on behalf of someone else, although it is a Mustahab Ehtiyat to consider both of the same rule. CR # 718. The rule about the fast missed for some reason by the deceased father and the rule that after his death it will be the duty of the oldest son to have all the Qadas on behalf of his father and all the cases that may possibly take place will be the same as that mentioned in prayer.

CR # 719. In the case of the expiation where one has the choice of having either one of the three alternatives and where one has to have all the three kinds of expiations; the two months of fasting as the expiation for one day of Ramadan must be fasted in consecutive order. If one month is fasted continuously and one day from the next month, this will be sufficient for the continuity.

CR # 720 If for some good reason one cannot continue when he is required to maintain continuity, or the discontinuity takes place for no proper reason, he has to start from the very beginning. An example of the proper reason is one’s forgetting to have an intention for the next day’s fast the night before, when one comes to know of the error after noon time or decides the night

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before to fast some other kind of fast or before the whole expiation has been completed one makes a vow to fast each Friday. CR # 721. If one vows to fast for two months, continuity is not necessary unless he has said that there will be no interval at all throughout the two consecutive months, in which case, he has to observe this conditions

CR # 722. If one knows that he will not be able to fast at a certain time, he is not allowed to start fasting for the two months such that they will be discontinued by that time, except in the case of the expiation for killing someone inside the boundary called ’Haram’ (sacred) in Mecca or the months of Haram’ in which case, it is necessary to fast during the months of Haram and the interval caused by the ’id in between will not be considered a discontinuity. If one does not know of such interval and unwittingly starts fasting, this will not harm his fasting. If one doubts about the discontinuity that may take place, his fast will not be considered valid. The three days of fasting as the expiation for not offering the sacrifice during Hajj started only two days before ’id, there is no offense to discontinue it on the ’id day and fast the third day soon after the ’id or after the days called ’Tashriq’ during which time one has to stay in Mina (name of a place in Mecca). If one starts fasting on the ninth of Dhil hajj, he has to start from the very beginning afterwards. CR # 723. If one vows to fast a month or several days, there is no need in his case to observe continuity unless continuity is taken as a condition therein. CR # 724. If one’s fast for vow, conditioned with continuity, is missed, it is

~Ehtiyat to observe continuity when fasting the Qada for the same. CR # 725. Optional fasting is considered a noble deed and is a strongly recommended form of worship. It is called a protective means against Hell fire and a purifying factor of the body. Fasting is a means to take one to Paradise. The sleep of the person fasting is considered as worship, his breathing or silence as commemorating the names of Allah. His deeds are accepted and his prayers are heard. His mouth will be sweeter to Allah than the best perfume. The angels pray for him until the time he completes the fasting day. For him there will be two chances of happiness; once at the sunset and the other when he finds himself in the presence of Allah.

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RECOMMENDED

(a) It is recommended to fast three days of each month, the first and last Thursdays, the Wednesdays of the second week and (b) eighteenth of Dhil hajj which will be considered equal to a hundred already accepted ’umrahs and haijjes.

(c) It is recommended to fast on the birth day of the Prophet and on the day he received revelation, the twenty of Dhil Q’ada and the ninth of Dhil hajj as long as it does not cause weakness or prevent one from praying the prayers recommended for that day; (d) the twenty fourth of Dhil hajj, the whole month of Rajab and Sha’ban; (e) the day of Nawrooz, the first day of spring; (f) the first, third and seventh days of Muharram; (g) every Thursday and Friday if they do not take place on the ’id

THE

MAKRUH

FASTING

(a) It is detestable to fast on the ninth of Dhil hajj for one who because of weakness cannot say the Du’as that day or the date is uncertain; (b) for a guest to fast an optional fast without the permission from the host and (c) for the children without the permission of the father. CR # 726. One is not allowed to fast on the ’id days, on the days called ’Tashriq’ for those staying in Mina whether as part of their Hajj duty or not, the day when it is not known whether it is Ramadan or not, but still consider it as Ramadan or because of a vow for an illegal purpose. It is not an offense to eat or drink at sunset or even up to the next sunset, provided, one does not intend to fast for two days, although it is Ehtiyat not to do so in the latter case. It is Ehtiyat for the wife and a slave girl not to fast without the permission of the husband and the master respectively, if their fast is optional, although there is strong reason that the fast of the wife is valid

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without the husband’s permission, as long as this does not deprive the husband of his rights. She should not ignore her husbands permission.

WAYS

TO

KNOW

WHEN

IT IS NEW

MOON

(1) The ways to know when it is new moon are personal certainty based on seeing the Moon; (2) report of a great many people whom one cannot think as reporting falsely;

(3) Certainty by any means; (4) Confidence which may come from a great many people’s report about the new Moon;

(5) passing of thirty days from the month of Sha’ban for this proves the beginning of Ramadan, or the passing of thirty days from Ramadan that proves the beginning of the month of Shawwal and (6) the testimony of two just people about their own sighting of the new moon. CR # 727. If the high authority in the Law orders to celebrate a certain day as ’id and if his mistake is not known or the mistake on which his decision is based as proof of the new moon, would be open to objection.

CR # 728. The testimony of one man or woman does not prove new moon, even if they enforce it by swearing. Also, if the testimony of two just people is not based on their own sighting of the new moon, it cannot be considered as proof of the new moon. CR # 729. It is not necessary that the just witness testify before a qualified authority. Any one who comes to know of their testimony may follow it.

CR # 730. If the new moon is proved, all the places which share the place where the moon is seen in the possibility of seeing the moon at the same time, can also celebrate ’id. If the moon is seen at one place other places can also celebrate new moon for there is enough reason to support this point.

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3o1

E’PTIKAF E’tikaf is a form of worship. It is formed by staying in a Mosque for a certain time. It is Ehtiyat that one should stay with the intention to worship Allah by praying formal or informal prayers although prayer is not a condition therein. CR # 731. The time for this form of worship could be any time when one is allowed to fast. The best time is the month of Ramadan, especially, the last ten days.

CONDITIONS (1) Intention as in the rest of the worship acts. It is necessary that the intention be made at the beginning of E’tikaf so that the rule, requiring the worship act to be completed with intention, be followed thoroughly from the beginning to the end. The decision made at the beginning of the night to start E’tikaf from the beginning of the following day will be open to objection. However, if one decides to start it from the beginning of the night it is not an offense to do so.

CR # 732 One is not allowed lo change one’s mind from one E’likaf to another of The same qualifies or different.

(2) Belief in Islam.

(3) Freedom from mental illness. (4) Fasting; thus, The E’tikaf of one who cannot fast for some reason is not valid. (S) Duration; which is Three continuous days at least. It could be more but not less than three days.

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332

CR # 733. If it is started from the beginning of a day the two nights in between will be part of the duration. Less than three days is not considered E’tikaf. (6) That it must take place in one of these Mosques: (a) The holy Mosque in Mecca,

(b) the Mosque of the Prophet in Madina, (c) the Mosque of Kufa, (d) the Mosque of Basrah, and (e) the Mosque which is assigned for the Friday prayer in any town or city. It is Ehtiyat, however, to complete it in either of the first four Mosques.

CR # 734. If one starts E’tikaf in a certain Mosque and later discovers That he cannot stay there for the time required for some reason, his E’tikaf will be void and he has to have the Qada in the same Mosque or somewhere else; he is not allowed to continue the same in another Mosque. CR # 735. The roof and basement of a Mosque is part of the same and it is valid to complete the E’tikaf in such places of a Mosque.

CR # 736. If one decides to complete E’tikaf at a certain place of the mosque his intention will be of no effect. (7) Permission of the people whose permission is required such as the master for the slave, husband and parents for the wife and children if this will be against the right of the husband or causes trouble to the parents. (8) Completing it in the Mosque where it was started. Thus, going out of the Mosque without an acceptable reason will invalidate the E’tikaf, regardless, one knows the rule or is ignorant or has

gone out because of forgetfulness, except inthe case of an emergency or one being forced or it-is because of some need such as using W.C. or having Taharat.

CR # 737. One is allowed to come out of the Mosque during E’tikaf to take part in the burial of a deceased or to visit an ailing one; coming out of the Mosque during E’tikaf to see off a believing friend, to bear witness or to testify to a fact and other such likable acts arc objectionable, although there 2

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is strong reason that doing such works is allowed, provided, one always goes about it through the shortest way according to a Mustahab Ehtiyat. One is not allowed to delay more than necessary. Going out of the Mosque for a time long enough to cause the E’tikaf to become as non-existing will be considered as invalidating the same, even if one has not done it out of one’s own choice. CR # 738. It is a necessary Ehtiyat not to sit out side the Mosque, if one is forced to sit, he must avoid sitting in the shadow, if possible.

CR # 739. If one needs to have Ghusi during the E’tikaf and it is possible for him to have it inside the Mosque, he is not allowed to go out unless the reason for Ghusl requires him not to stay inside the Mosque.

The Nature of E’tikaf

CR # 740. E’tikaf is originally an optional worship act but it may become obligatory because of a vow etc.

CR # 741. When because of a vow E’tikaf becomes obligatory, there is no objection that it will be obligatory before it is started. When it is not an obligatory from the start, it only becomes obligatory after two days. It will be necessary to stay for the third day unless when intending to have E’tikaf a condition was set to discontinue after the two days, regardless, such condition was set up before the intention or during the same. It is not an offense to set up such a condition even though there is no reason to make one discontinue the E’tikaf.

THINGS

TO

AVOID

DURING

E’TIKAF

(1) Having sex and also according to Ehtiyat kissing or romancing with one’s wife; (2) according to a necessary Ehtiyat causing a semen discharge, (3) and smelling perfumes for enjoyment; it is not an offense if one cannot enjoy the perfume because of some defect in his smelling ability. (4) Selling or buying in the form of a business deal, according to a necessafy Ehtiyat; there is no

E*TIKAF

334

offense to he occupied with allowable activities as sewing or writing etc., although it is a Mustahab Ehtiyat to avoid them too. CR # 742 If one needs to buy something for food and there is no one to do the buying for him, it is not an offense for him to do it. (5) Expressing bitterness in talking about worldly or religious matters in order to prove one’s ability, not the truth which is one of the best worships. CR # 743. The above mentioned factors invalidate E’tikaf if any of them may take place during the same at night or during the days. CR # 744. If E’tikaf is invalidated by one of the above mentioned things, if the E’tikaf is an obligatory one and of a limited time, one has to have the Qada for the same, if it is an obligatory one of an unlimited time, one has to start it from the beginning. If the E’tikaf is an optional one and it is invalidated after the second day, one has to manage the Qada of the same. If the optional E’tikaf is invalidated before the second day, there is no Qada. It is not necessary to manage immediately for the Qada of an optional E’tikaf.

CR # 745. The contracts of buying or selling during E’tikaf invalidate E’tikaf, but such contracts will be valid. CR # 746. If E’tikaf is invalidated because of having sex even, during the night, an expiation will be due; if it is invalidated by other things, there will be no expiation, although it is a Mustahab Ehtiyat in this case too.

CR # 747.The expiation for invalidating an E’tikaf is to set free a slave or if this is not possible ,fast for two consecutive months or if this also is not possible, feed sixty poor people.

CR # 748. If E’tikaf takes place in the month of Ramadan and it is invalidated by having sex during the day, one has to manage two expiations, one because of Ramadan and the other because of E’tikaf. The same rule applies if the E’tikaf takes place during fasting the Qada of Ramadan and it is invalidated by having sex after noon time

CR # 749. If E’tikaf has become obligatory because of a vow during the month of Ramadan or when one is having the Qada of Ramadan, if such E’tikaf is invalidated by having sex, one has to manage a third expiation because of the vow. In the same case, if the wife is fasting in Ramadan and

ISLAMIC LAWS OF WORSHIP

335

the husband has forced her to have sex, he has to pay a fourth expiation on her behalf too, according to Ehtiyat.

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LAWS

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336

ISLAMIC PRACTICAL LAWS PART 4: ZAKAT (AWORSHIP ACT AND AN ECONOMIC FACTOR) Zakat or a form of income tax is one of the elements which form the Islamic way of life. One of its characteristics is that with the knowledge of its importance in Islam if one denies it, he can no more be considered a Muslim. More-over, according to a number of Ahadith, one who does not pay Zakat when it is due cannot be considered a Muslim. In the rules of the Islamic Laws about Zakat the following elements form the subject matter of the section dealing with Zakat:(a) Who has to pay Zakat? (b) Taxable goods. (c) Where Zakat has to be spent?

In part ’a’ of this section the followings are the elements and conditions which form the substance of one’s Taklif (responsibility) of paying zakat: (a) Maturity as regards age (b) Soundness of one’s reason (c) Freedom which is contrary to slavery. CR # 1. The above conditions must be existing from the day a certain amount of goods become taxable to the end of the year when timing is also required. If the above conditions come into being some times later from the day a certain piece of goods becomes taxable, in this case, the accounting year will be considered as having started from the day the above condition came into being. In the case of a child who owns cattle if he becomes mature during the accounting year it is Ihtiyat to pay Zakat. CR # 2 No distinction is made between permanent or occasional mental-illness in regard to responsibility, however, if an insane person

ZAKAT

337

recovers during the end of the year he should pay Zakat according to Ihtiyat. (d) Ownership is another condition forming Taklif (responsibility) for Zakat. CR # 3. This condition must also be existing, at the time a certain property becomes taxable, throughout the accounting year when timing (completion of one year) is one of the conditions. Therefore, there is no Zakat on girts and loans before they are received and property which one may receive through some one’s will before the death of the person making such will. (e) Disposability This condition as regards the above rules is the same as the ones mentioned before. CR # 4. There is no Zakat on stolen property or that which is in the hands of someone who refuses to return it to the owner. The property buried somewhere which the owner has forgotten where it was kept, property given in mortgage, endowment or vow, missing property and property given as loan which the owner can’t get back. CR # 5.There is no Zakat on the profits of the property given as endowment if the endowment is supposed to be spent for a certain cause. There will be Zakat on such profits if the endowment is supposed to become the property of certain people, no matter,if the endowment is for a certain person, a group of people or general welfare. For example, if one intends his garden as endowment so that his children or scholars would benefit from it, in this case,

there will be no Zakat on the profits taken from the garden. If it is decided that the profits or income from the garden will go to his children or certain people as their own property, in this case, such profits would be taxable, provided, all the other conditions required also exist like the quantity of the property, timing and other conditions. If a certain property would be given as endowment to a certain title, instead of people, like the poor or scholars, there will be no Zakat on it even if each person’s share would be a taxable quantity. CR # 6. A taxable property belonging to two people, for instance, would only be taxable if each one’s share is of the would amount which is liable for tax. CR # 7. In a contract, when it is agreed among the parties that the contract would be revokable if the other party will not give the goods or price within the appointed time, this condition would eliminate condition (e) but the other conditions set up in a contract which entitles one party to revoke the contract do not have this effect.

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CR # 8. Fainting or becoming drunk do not free one from his responsibility of paying Zakat. CR # 9. If condition (e) exists at the time Zakat becomes due on a certain piece of property and later before Zakat is paid that condition ceases, or if it ceases to exist after the end of the year, responsibility to pay Zakat still remains; payment is necessary. One would be responsible for Zakat if the above would be the result of his own short-coming to pay, otherwise, he will not be held responsible. CR # 10. Zakat due on a loan would be the responsibility of the person receiving the loan and is to be paid when he receives it. For instance, if one borrows a taxable amount of property or money and maintains possession for a whole year, in such case, the person borrowing would be responsible to pay Zakat due on this property even if in the contract the parties may agree that Zakat must be paid by the lender. If the lender pays the Zakat without any condition in the contract, this will also be acceptable, as in the case of

another person not involved in the contract who may voluntarily pay some one’s debts. CR # 11. If the property of a child or an unsound person may have been used in trade for profile, it is Mustahah (preferable) that their guardian should pay Zakat on such property.

CR # 12. If someone recovers from mental-illness but the date of final recovery relative to the date of the taxability of that person’s income is not known, there will be no Zakat on him. If a formerly sane person becomes mentally ill, but the exact date of the beginning of his illness (relative to the date of the taxability of such person’s property) is not known, there will be Zakat until the point that his illness is establishment. CR # 13. If the taxable amount of property is enough to make one responsible to fulfill the duty of hajj, in this case, Zakat must be paid first if Zakat has first become due before hajj season. After the payment of Zakat if the amount of property left is not enough to meet one’s hajj expenses, there will be no hajj due. If Zakat becomes due after the hajj season, one must preserve his ability to fulfill the duty of hajj even though he may have to change that property to that required for the hajj expenses. If he does not change the same before a whole year is passed, in this case, Zakat will also be due.

ISLAMIC

THE

LAWS

OF WORSHIP

TAXABLE

339

PROPERTY

(I) Live-stock: (a) Camels. (b) Cows. (c) Cattle, sheep and goats Grains: (a) Wheat (b) Barley (c) Dates. (d) Raisins. Currency (a) Gold (b) Silver. CR # 14. It is Mustahab (preferable) to pay Zakat for all the other kinds of grains used for food and it is a necessary Ihtiyat to pay Zakat for ‘Salt’ and ‘als’ two forms of grains very similar to wheat and barley. There is no Zakat on vegetables used for food.

DETAILS

ABOUT

TAXABLE

PROPERTIES

CR # 15. Live-stock is taxable only when the following conditions exist

QUANTITY

OR

NUMBER

For Camels there are twelve different numerical standards. (a) Five heads of camels for which Zakat is one sheep. (b) Ten camels on which the amount of Zakat would be two sheep. (c) fifteen camels on which the amount of Zakat would be three sheep. (d) Twenty camels for which Zakat is four sheep. (e) Twenty five camels for which Zakat will be five sheep. (f) Twenty six camels for which Zakat will be one two years old camel. (g) thirty camels for which Zakat will be one three years old camel. (h) Forty six camels on which Zakat will be one four years old camel. (i) sixty one camels for which the amount of Zakat will be one five-years old camel. ( ) Seventy six camels for which Zakat will be two camels each three years old. (k) Ninety one camels for which Zakat will be two camels, each four years old. (I) For one hundred twenty one camels or more one will have the choice of either paying one four years old camel for each fifty or one three years old for each forty camels, depending on the divisibility of the total number of camels. If after dividing the total taxable number of camels by forty or fifty one yields a remainder of less than ten, there is no Zakat on the residue. (2) For the Zakat payable on cows there are two numerical standards. CR # 16. (a) For thirty cows the amount of Zakat will be one two-years old cow, that is in the second year . (b) On forty cows the amount of Zakat is one three-years old cow.

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340

CR # 17. If the total number of the cows cannot be divided by the multiples of 30 or 40 whichever is applicable without leaving a remainder, there will be no Zakat on the remainder. (3) There are five standard numbers as regards the taxable quantity of cattle: (a) Forty heads of cattle for which the amount of Zakat is one sheep. (b) One hundred twenty one heads of cattle for which the amount of Zakat is two sheep.

(c) Two hundred and one heads of cattle for which the amount of Zakat is three sheep. (d) Three hundred and one heads of cattle for which the amount of Zakat is four sheep. (e) Four hundred and over and for each hundred is one sheep. It is not necessary to pay Zakat out of the same cattle, paying from other flocks or other property is also permissible.

CR # 18. There will be no Zakat on the number of cattle which is less than forty nor on the number of cattle which may remain between any two standard numbers. (See No. 3 under rule 17) CR # 19. Buffalo and cows are of the same category and the same is true of all types of camel, sheep, goat and male or female live-stock. CR # 20. Property belonging to more than one person is taxable only if each individual’s share is of such an amount that is taxable. CR # 21. If one’s property is located in several places and the total amounts to the standard taxable quantity, he must pay Zakat.

CR # 22 The sheep that must be given as Zakat for camels or cattle must not be less than seven months old and due Mustahab Ihtiyat it should be in the second year and if it is a goat it must be one year old and according to a Mustahab Ihtiyat it should be in the third year. CR # 23. The tax-payer may pay Zakat from the taxable property or other property. It is also allowed to pay Zakat of some property in cash or some other kinds of goods, although it is better to pay Zakat from the taxable property itself. CR # 24. If the tax of Zakat made is with other than the taxable commodity,

it must be according to the market value of the taxable item. If there is a difference in the par value of the measure of payment at the place of

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payment and the location of the property, it is a precaution (Ehtiyat) to pay the higher one.

CR # 25. If payment is not made from the taxable property and no change is made in the quantity of the taxable property for a year following the payment, one has to pay Zakat again. If one pays Zakat from the taxable property itself, he has to pay only the Zakat of one year, for in this case a reduction takes place in the standard quantity. CR # 26. If the amount of one’s property is more than the standard quantity and it remains in one’s possession for several years without any Zakat paid, he has to pay Zakat for all those years unless in doing so the reduction (due to payment for a certain year) will reduce the standard quantity before Zakat for all the years has been paid. CR # 27. It is not an offense to pay a male or female as Zakat for the standard quantity of cattle, regardless, all the individuals are males, females, goat or sheep; the same applies to camels and cows.

CR # 28. The quality of the individuals in the standard quantity has no effect on the taxability of the amount as a whole. For instance, if some of the individuals in the standard amount are sick, defective, too old or too young, this will not be considered of any effect to the standard quantity in regard to its taxability; the owner still has to pay Zakat for the whole amount. If all the individuals are not free of defects, to pay them as Zakat for the above said kind of cattle will be permissible, and according to Ehtiyat if the standard quantity is composed of physically sound individuals, one is not allowed to pay a defective one as Zakat for the physically sound ones. If the whole consists of all young ones, in this case, one is not allowed to pay as Zakat for them an old one. If the whole is composed of both young and the old ones, in this case it is Ehtiyat to pay a healthy, and young as Zakat for the whole of the above said quantity but it is permissible to pay proportionately.

THE

SECOND

CONDITION.

Live-stocks in regard to their taxability must be living on their own by means of grazing, not being fed at home from the animal food collected by the owner.

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34

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CR # 29. If the cattle are fed on the animal food, collected for them by the; owner, even for few days during the year, there will be no Zakat on them., Their feeding on food collected by the owner for a day, two or three would make it difficult to consider them as untaxable, although it would be Ehtiyat if not because of a strong reason to consider them still as taxable live-stock.

CR # 30. In the case of cattle grazing on their own whether the owner wants them to graze or he has no other option but to feed them through grazing, the grass belongs to the owner or someone else, the cattle are grazing by the permission of the owner or the other person, or whether the grass land belongs to the owner or not, still they will be considered as taxable. If the grass is cultivated by the owner and the cattle are grazing on it, in this case, it would be difficult to consider them as untaxable. There is a clear reason that in this case too they will be considered as taxable.

THE

THIRD

LIVE-STOCK

CONDITION: MUST

NOT

BE

WORKING.

CR # 31. During the year if they are used for some forms of work for the owner or others for a day, two or three, it would be difficult to consider them as untaxable because of this amount of work. Therefore, it would be Ehtiyat to consider this amount of work as of no effect to their taxability.

THE

FOURTH

CONDITION:

Live-stock, besides the existence of all the other above mentioned conditions, in the form of a whole standard quantity must remain in the possession of the owner for complete eleven months according to Ihtiyat.

CR # 32. As soon as the twelfth month starts Zakat becomes incumbent on the owner for taxable live-stock. After this and before the twelfth month is completed if any of the conditions cease to exist, still Zakat will be due. The twelfth month is part of the whole year and the next year will start after the twelfth month is completed.

CR # 33. If one of the required conditions ceases to exist during the eleventh month such as a reduction in the number of the standard quantity, or the owner is losing control of disposing the property or the existing taxable

my :

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property is changed into some other kinds of live-stock, even if the change is done just to avoid Zakat still there will be no Zakat due on the owner. CR # 34. If during the accounting year an increase in the taxable live-stock takes place through buying or the birth of new ones, according to the general rule each standard quantity would only be taxable when it remains in the _ possession of the owner for a whole year. If during the accounting year out of forty cattle forty more are born the young ones would only be taxable after the completion of one year since birth. CR # 35. Gold and silver are taxable when the following conditions about them exist. CR # 36. There are two standard quantities in the taxability of gold. (a) Twenty units by weight called twenty Mithqals. On this quantity the amount of Zakat would be 2.5 percent. There is no Zakat on gold if the whole amount in ones possessionis less than the standard quantity, mentioned above. (b) Four units in addition to the above mentioned standard quantity. CR # 37. Whenever there is an addition of four Mithqals to the standard quantity the amount of Zakat would be 2.5 percent of the whole existing amount of gold in one’s possession. There will be no Zakat on any additional quantity besides the standard quantity if the additional amount is less Than four legal Mithqals. Note: One Mithqal is equal to a Dinar which is equal to twenty Qirats or Carats which is equal to four beads of locust-beans by weight.

ZAKAT

OF

SILVER

CR # 38. As in the case of gold, the Zakat on silver too has two standard quantities: (a) One hundred and five (Shar’i) legal Mithqals on which the amount of Zakat is one fortieth. (b) The second standard quantity of silver is twenty one Mithaals in addition to the hundred and five Shar’i Mithqals. Whenever there is an addition of twenty one Mithqals of silver to the first standard quantity only, one has to pay Zakat for the whole amount of silver, the one hundred and five plus twenty one. If the additional amount to the first standard quantity, which is one hundred and five, is less than twenty one Mithgals, there will be no Zakat on the additional amount.

CONDITIONS SILVER

FOR

TAXABILITY

OF

GOLD

AND

(1) Zakat is due on gold and silver only when they exist in the standard currency forms with due market value and a circulating function in the

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344 |

market. If for some reason the marks on the coins are worn out, this will have no effect on their taxability.

CR # 39. The silver and gold coins that women keep as there jewelry will, according to a necessary Ehtiyat be considered as taxable only if they are used in the market as a means of transaction. In case, such coins are no

longer used in the market for transaction, it would be only a Mustahab Ehtiyat (preferable) to pay Zakat if a whole standard quantity exists in one’s possession. (2) The second condition for the taxability of gold and silver is one year time factor. CR # 40. If the standard quantity of gold or silver remains in one’s possession for complete eleven months and part of the twelfth month, condition (b) will be considered as existing with due validity. CR # 41. If a reduction takes place in the standard quantity before the eleventh month is completed, there will be no Zakat on such gold or silver. There will be no Zakat if silver or gold besides the amount existing in one’s possession is added or the existing quantity is melted or molded into some form other than coin form such that they can no longer be used as currency in transaction in the market. If someone changes them, melts or molds them into some other kind or other forms of property just to avoid Zakat, it would be a Mustahab Ehtiyat to pay Zakat for such gold or silver. CR # 42. If any changing, melting or molding takes place in the twelfth ' month, the owner is responsible for paying Zakat on such gold or silver. If any reduction in the standard quantity takes place in the process of changing or molding, the owner will be responsible to pay the Zakat of the standard amount that existed before the change.

CR # 43. It is not an offense to pay the Zakat of pure silver and gold from an amount of pure gold or silver and the Zakat of an impure quantity in the form of impure amount. CR # 44. If part of the standard quantity is impure, it will be no offense to pay Zakat for the same in the form of some impure amount of gold or silver. CR # 45. As long as the standard quantity can be referred to as gold or silver coins in the market, even though in those coins a certain amount of other metals may exist, in regards to Zakat, they will still be considered as gold or

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silver. If the amount of mixture is to such an extent that people will no longer consider them as gold or silver coins; it would be difficult to consider them as taxable, even though the amount of pure gold or silver existing would be a standard quantity. CR # 46. It is not an offends to pay the Zakat of the gold and silver coins in the form of other goods or property of equal value to the payable amount of gold or silver.

ZAKAT

ON

THE

CONDITION AGRICULTURAL

AGRICULTURAL FOR THE PRODUCTS.

PRODUCTS TAXABILITY

OF

(a) The standard quantity which is eight hundred and forty seven kilos of the taxable product. (b) That this quantity must be owned at the time of its taxability, regardless of the means of possessing whether it is farming, buying or inheriting. CR # 47. In the case of wheat and barley Zakat becomes due at the time when the seed could be called wheat and barley. In the case of dates Zakat becomes due when their color turns reddish or yellowish. In the case of raisins Zakat becomes due when the grape seeds take shape inside according to Ihtiyat. A more distinct standard in the matter is that Zakat will be due when they can be called such products i.e. wheat, barley, grapes and dates.

CR # 48. The weight of the standard quantity would be that of the time when they become dry, not that of the time in the ears or on the trees.

CR # 49. Zakat for these products will be payable when they are collected from the held and the trees by the usual process. From such time onwards, if the owner delays in paying Zakat, he will be held responsible for the amount of Zakat. Before this time the tax collectors have no right to demand Zakat from the owners. It is not an offense to pay Zakat before the above period and the tax collector would also be responsible to accept it, provided, it is after Zakat becomes due on a certain product.

CR # SO. Zakat for agricultural products is payable only once. Thus, if the Zakat of a certain amount of the agricultural product is paid and the product

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346

remains in the possession of the owner for the coming years too, in such case, the owner does not have to pay Zakat for each year. In the case of live-stock if Zakat is paid with gold or silver, it is necessary to pay Zakat next year until the number is reduced to below the standard quantity. CR # 51. The amount of Zakat on agricultural products is one tenth if they are irrigated by natural ways such as stream or rain water or water from the ground. The amount of Zakat is half of one tenth 2.5 % when the means of irrigation is mechanical such as motor pumps and other means. If both means of irrigation are used, the one which has the greater share would be considered the standard in the case. If both ways are used, and that people say water from rain and natural means was more , it is necessary Ihtiyat, the payable Zakat will be one tenth. In case, one doubts which one is the major means of irrigation, he may pay the lesser amount, although it would be Ehtiyat to pay one tenth. CR # 52. In the case of a tree the standard means of irrigation is the time when the fruits are growing, not the time when the tree was planted. CR # 53. The occasional rainfalls each year have no effect on the taxability of the farm products which are usually irrigated through the mechanical means unless such rainfalls meet half of the irrigation needs or more, in which case, the rules will be followed according to the actual proportion of each means.

CR # 54. If someone with or without a reason pumps water from the ground and someone else uses that water to irrigate his farm, in such a case, it is

clear that the amount of Zakat on the products of the farmer will be one tenth. The same rule applies if one pumps water out from the ground for no reason or for some other purposes, then decides to water his farm with it. If he pumps water out of the ground for a certain farm; later decides to water another piece of farm, or if he had some water left which he pumped out of the ground for a certain farm and he decided to water another piece of his farm, in this case, apparently, the amount of Zakat will be half of one tenth. CR # 55. In the cases where the government takes a part of the product of the farm as its share, there will be no Zakat on that part. CR # 56. All the expenses for a certain product like labor or government taxes will all be deductible from the standard quantity, taxable in the form of Zakat, although it is Ehtiyat to pay Zakat for the expenses too. The expenses

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involved after Zakat becomes due on a certain product, they will be divided on the whole according to the proper ratio. It is lawful to deduct the amount of depreciation of the tools used for making the product possible. The expenses made for taxable and non taxable will be divided according to the ratio of the quantity of each product. It is permissible to deduct the expenses made for better products in future from the income of the products of the first year. CR # 57. The existence of date trees and grapes in different places and the difference in the timing of getting their products has no effect on the taxability of the product as longas they can be considered the products of the same year, even if the difference is several months. The same rule applies to other farm products. If the trees give fruits twice a year, in such a case too it is a necessary to consider all of them as part of the standard quantity of the same year and pay Zakat according to Ehtiyat. CR # 58. It is not an offense to pay Zakat for a certain product in other kinds of goods or in cash.

CR # 59. If the owner dies after the time when Zakat becomes due on a certain product, it would be necessary for his heirs to pay Zakat from that product. If he dies before such time and the product has been transferred to the heirs, in this case, if the share of each of the heirs is equal to the standard

quantity, each one would have to pay the Zakat on his share. Only those whose share is equal to the standard quantity have to pay Zakat. The same rule applies to the case where certain products have been transferred to some one through buying or as gift. CR # 60. If the standard quantity may consist of the products of the same kind but of different qualities, it will be no offense to pay Zakat from the best quality for something less good or bad but it would be difficult to consider lawful paying a bad quality as Zakat for the better or best quality. According to a necessary Ehtiyat the products of a bad quality should not be given as Zakat for the better or best quality.

CR # 61. There is a strong reason that the substance of the standard taxable quantity is subject to Zakat.

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348

CR # 62 The owner is allowed to use any amount of the whole taxable quantity, leaving untouched an amount which would be equal to the amount of payable Zakat. If he uses the whole quantity in a transaction, it will not be considered valid and lawful on the part which is the share of the Zakat in the whole taxable quantity, as long as the seller does not pay the payable amount of Zakat from the products exchanged in the transaction. As soon as he pays the payable amount of Zakat, the transaction for the part of the amount of Zakat will also be considered legal without permission from a qualified authority in the Islamic Law, or if the amount of payable Zakat being paid by the buyer, in which case, he has the right to receive from the seller an amount of goods equal to the amount of Zakat on the whole quantity. If an authority in the Islamic Law permits the transaction the purchase will be valid and the authority will ask the buyer to pay the amount of Zakat if it has not already been paid by the seller. CR # 63. One is not allowed to delay paying Zakat without some reasonable excuse. If the delay has taken place because of the owner’s search for the proper recipient of Zakat and the product is lost before finding one, in this case, the owner will not be responsible for the Zakat, but if he delays with the knowledge of the existence of the deserving people and the product is lost, he will be responsible. CR # 64. The owner is allowed to separate the amount of Zakat from the whole taxable amount if no proper recipient of Zakat is available. Even if deserving recipient of Zakat are available still the owner may put aside the amount of Zakat, in which case, the separated amount in particular will be the Zakat of the whole quantity under the trusteeship of the owner, and he will not be responsible in the case of loss or damage to that separated amount unless it is because of his own carelessness. In the case of the existence of the proper recipient of Zakat if the owner delays in paying Zakat and wants to pay it gradually within a month, two or three and the amount of Zakat gets lost, in such a case, it would be hard to consider the owner

responsible for the same. CR # 65. The profit on the amount of Zakat has the same rules as the amount of Zakat itself, thus, the owner is not allowed to change it after he has separated it from the rest of his property. CR # 66 If one sells farms or taxable fruits, then doubts whether he sold them before the time when Zakat becomes due on them, in which case, it will

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be his duty to pay the Zakat or after such a time so that the buyer would be responsible lo pay Zakat, there will be no Zakat incumbent on him even if he is sure of the time when Zakat became due on the product but doubts when the transaction actually took place. If the buyer may have such a doubt, if he knows that the seller has paid the amount of Zakat which is true of the case when the transaction may have taken place after the time when Zakat became due on the product, there will be no Zakat incumbent

on him,

otherwise, it would be his duty to pay Zakat even if he knows the time and date when Zakat became due on the product but does not know the date when the transaction took place. CR # 67. It is allowed for the authority in the Islamic Law or his representative to determine the amount of Zakat for dates or grapes when they are on the trees by estimation, or the profit of the amount of Zakat without exact measurement. Because of a strong reason, even the owner himself may determine the amount of Zakat for a certain product, if himself is an expert in the matter; he may also refer to some other expert in the case.

THINGS ZAKAT:

AND

PEOPLE

DESERVING

TO

RECEIVE

The following are people and things on whom and for which Zakat could legally be spent: (a) The poor. (b) The destitute. (c) Tax collectors. (d) People having a tendency towards Islam. (e) To set free the slaves. (f) To pay off debts of the people who can not pay themselves. (g) For the cause of Allah. (h) To help the travellers who may have lost their money. Details About The Said People and Things

The poor and destitute are those who do not have enough money or means to meet their annual financial needs and those of their dependents. People

mentioned in (b) are those whose conditions are worse than those mentioned

in (a). On the other hand ’Ghani’, or rich, are those who have sufficient money for their annual needs and the needs of their dependents, their wealth; money, goods or professions provide them enough financial means to meet their annual expenditures. People who have the ability to earn their living but - because of laziness do not work, because of a strong reason are not allowed

ZAKAT

350

to receive Zakat. If the season for the kind of work that such people have | been doing has now passed, they will be allowed to receive Zakat. | |

CR # 68. One who has some money as the capital for his business, but the |

profit for such capital is not enough to meet his annual financial needs, is also allowed to receive Zakat. The same rule applies to the people who have a certain profession. Since the money that they invest in equipment or | commodities is enough to meet their one year financial needs, but not the profit that they get from such a profession; thus, they too are allowed to receive Zakat for their needs and preserve their equipment to continue their profession. CR # 69. Having a house to live, servants, a means of transportation and other items which one needs and are not above the standard of his status will not disqualify him from receiving Zakat, if he needs such help for his annual expenses. The same rule applies to one’s households and the clothing of different seasons. If the items mentioned above are more than what one really needs, and the value of such items is enough to meet one’s annual financial needs, such people will not be allowed to receive Zakat. If one has an expensive house that on being changed to a less expensive one would suffice him as a place to live and the difference of price would be enough to meet his annual financial needs, he also will not be allowed to receive Zakat,

according to a necessary Ehtiyat. The same rule applies to the means of transportation and servants. CR # 70. Those who do a certain available work which is against their status, or those who have a certain skill but do not have the equipment to put their skill into practice are also allowed to receive Zakat. CR # 71. One who has the ability to learn a certain skill which will enable him to earn his living is not allowed to receive Zakat unless the time for learning has gone, in which case, he will be allowed to receive Zakat. In order to be considered a rich person one’s ability of learning certain skill does not disqualify him in receiving Zakat if that time is far away or even if it is near

as a day or two. CR # whose Zakat. he will

—

72 A student who does not have any means to make his living and studies are necessary (wajib) for him, will also be allowed to receive If his studies are not necessary for him and he has the ability to earn, not be allowed to receive Zakat, provided, the earning through which

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he may make his living will not be against his status or that he does not have the equipment to benefit from his skill or any capital to use in business, for in all these cases he would be allowed to receive Zakat. In the above cases, the

rule refers to the share of the poor in the amount of Zakat. If the amount of Zakat involved is the share to be spent for the cause of Allah, a person such as the one mentioned above would also be allowed to receive Zakat from such a share, provided, the result of his studies are likable to Allah, even

though the person himself does not have any intention of pleasing Him by such results. If he intends to have some illegal results such as an illegal leadership etc., then he will not be allowed to receive Zakat.

CR # 73. If one knows that a person is only claiming to be poor while before he was not poor or is not known whether he was poor or not according to a necessary Ihtiyat Zakat must not be given to him if one is not confident about the truth of his claim. CR # 74 If a poor person is indebted to someone on whom Zakat is due such tax payer may offset the loan given to the poor from the amount of Zakat which is incumbent on him, regardless, the poor person is alive or dead. In the case of a dead person if the legacy is not enough or the heirs refuse to pay or receiving payment is not possible for other reasons according to necessary Ihtiyat to offset is not permissible. If the heirs will not agree to pay the debt, it will be hard to consider a deal as the above one as legal. The same rule applies if someone has usurped the legacy andit is not possible to get it back from him, or someone has destroyed it and there is no way to obtain an equivalent amount from him.

CR # 75. It is not necessary to inform the recipient of Zakat of his receiving Zakat even though he may think that what he is getting is a gift. One is also allowed to spend Zakat on a poor by paying for his dinner or giving him something IO eat. CR # 76. If one pays Zakat to someone thinking that he is a poor, but later discovers that he is not or has given to non poor because of the ignorance of the ruie, if the amount of property given as Zakat is existing , one may claim it back from him to spend in the proper way, provided, the very substance of the property paid still exists. If the substance is lost and the recipient knew that it was Zakat the payer can ask for refund but if the recipient did not know, the payer will not deserve refund.

ZAKAT

chy,

CR # 77. The collectors of Zakat are those who are appointed to collect and take care of the Zakat property and send it to the Imam (as.), his representative or give it to deserving people or causes. CR # 78. People who have some tendency towards Islam are those Muslims whose faith in Islam is weak, but who on receiving Zakat may strengthen their faith or the non-Muslims who on receiving Zakat may help the Muslims or Learn about Islam and accept it.

CR # 79. The slaves who deserve to receive Zakat are those who have made a contract with their masters that if they pay a certain amount of money they will be set free, but are not able to pay that amount. Besides these, slaves who suffer because of being slaves can also be bought by the money from Zakat and set free. Moreover, any slave can be bought from the money from Zakat and be set free, provided, no other properties exist for such cause. CR # 80. People who can not pay their debts are also allowed to receive Zakat if they cannot earn enough for their annual financial needs, provided,

the loans which they have received are not spent in illegal ways. If the lender has to pay Zakat he may charge the person indebted to him and deduct the amount of Zakat which is incumbent on him from the debt. A third party on whom Zakat is due also is allowed to pay the lender and deduct it from the amount of the debt which the poor owes to him. It is not an offense to pay Zakat to one’s dependents so that they could pay the debts incumbent on them but one is not allowed to pay Zakat to one’s dependents so that they may spend it for their own living. CR # 81. The cause of Allah includes public welfare, building roads, schools, Mosques, improving people’s relations, removing corruption and helping

people to have good manners. Because of a clear reason there is no harm to pay Zakat for any cause that could be considered an act of obedience to Allah and the recipient cannot have such obedience without the help from Zakat. The same rule applies if he is able to-do it without the help from Zakat but he would not be ready to do so without such help.

CR # 82 The needy travellers are those whose money is spent on the journey and have nothing left to spend on their way home. They will be allowed to receive Zakat, provided, their journey is a legal one and they cannot get a

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loan or sell some of their property at home. If they can find one ready to make such deal with them, they are not allowed to receive Zakat. CR # 83. If one believes that no Zakat was due, he is allowed to ask the

recipient to pay him hack what he has given him as Zakat. In case, the amount given is lost, he would he allowed to get back its value, provided, the recipient knows the situation, otherwise, he will not be allowed to ask the

recipient for a refund. CR # 84. If one on whom Zakat is due has made a vow to pay the amount of Zakat to a certain deserving person, his vow would be valid. If because of mistake he would give it to another person, still it would be alright and he will not be allowed to get itback from him, even though the very substance of the property paid would still be existing. If he pays it to someone else intentionally, in this case too, it would be acceptable bull the payer will be considered as committing a sin because of disregarding his vow and a penalty would be due on him because of the violation of the vow.

CONDITIONS

ABOUT

THE

RECIPIENTS

OF

(A) TO BE A BELIEVER (IN A PARTICULAR OF BELIEF).

ZAKAT

SENSE

CR # 85. It is not allowed to pay from the share of the poor in Zakat lo a non-Muslim or a non-Shia. It is not an offense to pay Zakat to the children of the Shias and their mentally-ill ones. In case, it is intended that the amount paid has to become the property of such people, it is necessary that their guardian accept it. On the other hand, if the payer of Zakat himself spends the amount of Zakat on such people or it is spent on them through his agent, there is no need for the acceptance of their guardians. CR # 86. If a non-Shia may have given the amount of Zakat due on him to the people of his own sect and later on he accepts the Shia school, he is allowed to get that amount back. If he may have paid it to a Shia, his payment would be considered valid. (b) The second condition about the recipient of Zakat is that they must not be of the sinners who would spent Zakat in sinful ways; and giving Zakat would help them to commit more sins. It is an Ehtiyat that Zakat should not be given to a person who does not pray his daily prayers, one who drinks alcohol or the ones who commit sins in public. (c) The third condition about recipient of Zakat is that they must not be of the

ZAKAT

354.

dependents of the Zakat payer like one’s parents, grand-parents on-wards, || children down-wards male and female, ones wife of permanent marriage, | provided, her rights of maintenance are still valid or one’s servants. It is not allowed to give such people from the amount of Zakat due on him for their living, but there is no offense to give them for their other needs; like giving Zakat to one’s father or child to maintain his wife or servants or pay his debts. However, giving Zakat to such people in order to have more facilities, according to Ehtiyat if not a strong reason, is not allowed. CR # 87. One’s dependents are allowed to receive Zakat from other people if their guardian cannot provide them with their living or in doing so makes them feel bad a great deal or show them that without his favors they could have been considered nothing. If one’s dependents get enough money from Zakat and it is enough for their needs of living, according to a strong reason, it would not be necessary for the guardian still to provide them with money for their living. CR # 88. A wife is not allowed to receive Zakat if her husband maintains her, or even if it would be possible for her to use force to get her living from her husband, in case, he does not provide her in a peaceful way.

CR # 89. It is not an offense to give Zakat to a wife by a temporary marriage, regardless, the pay-number would be the husband or someone else. The same rule is true of the wife of a permanent marriage when a condition is included in the contract that in the absence of a certain condition the wife would lose her right of maintenance. If she may lose her right of maintenance because of the disregard for her husband’s rights, in this case, she can not be considered a deserving recipient of Zakat.

CR # 90. The wife is allowed to pay the Zakat due on her, to her husband, even if that Zakat has become due on her because of the money given to her by the husband for her maintenance. CR # 91. If one may have volunteered to provide someone his living such money could be given from the Zakat due on the person who has volunteered or someone else, regardless of the relation between them. CR # 92. If one would not be able to provide his dependents with their living needs, he is allowed to give Zakat due on him to them for their living,

although it is a Mustahab Ehtiyat not to do so. (d) The fourth condition

ISLAMIC

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355

about the recipient of Zakat is that they must not be of the descendants of Hashim, the-grand father of the Prophet of Islam, Muhammad (p.b.). CR # 93. People belonging to the descendants of Hashim from their father’s side are not allowed to receive Zakat due on the people not belonging to the descendants of Hashim. However, they may use Mosques and other charitable places established from Zakat which is paid by the people who are not from the descendants of Hashim.

CR # 94. It is not an offense for the descendants of Hashim to receive Zakat due on other descendants of Hashim. Also, in the case of emergency they may receive Zakat of the non-Hashimites. CR # 95. Only Zakat of the above mentioned properties and Zakat of people called Fitrah are the ones which the descendants of Hashim are not allowed to receive from the non-Hashimites, but it is not an offense for them to receive other non-obligatory charities or the obligatory ones like vows, expiation and the properties about which a will is made to be paid to the poor. CR # 96. The sons of an Hashimite out of marriage wedlock will not be considered Hashimite. CR # 97. The following are ways to know who a Hashimite is: (a) Certainty based on reasonable grounds. (b) Testimony of the just people. (c) Being famous as Hashimites which would make it a reliable matter. Only people’s claim of being Hashimites is not enough to set one free of his obligation of paying them Zakat due on him.

PRECEPTS

OF

ZAKAT

CR # 98. There is no need to distribute Zakat due on one among all the people and things mentioned before as deserving to receive Zakat or among the individuals of one group of the receivers of Zakat. If Zakat is paid to only one individual of any of the kinds of the recipient of Zakat it would be enough to set one free of his obligation. CR # 99. It is allowed to send Zakat of the properties of one place to another place to be given to the deserving people or causes. If deserving people or things are already existing at the first place, the transportation cost

E°TIKAF

356

would be on the person who is sending Zakat to the other place. If the amount of Zakat gets lost on the way, the sender would be responsible for the amount. If the amount of Zakat gets lost on the way not because of carelessness or with the existence of the deserving people at the first place, in this case, the sender will not be responsible for the amount of Zakat lost on the way. The same rule is true if an authority in the Islamic law appoints someone to transfer Zakat from one place to another and it gets lost on the way, but, in this case, the cost petransportation would be deducted from the amount of Zakat. CR # 100. If the property on which Zakat has become due is existing at some place other than where the owner lives, he may pay such Zakat to the deserving people or things of his home town, even though at the place of the taxable property deserving people or things are already existing. The same rule is true if one wants to deduct the amount of Zakat due on him from the loan which a poor living somewhere else may owe to him. CR # 101. If an authority in the Islamic Law takes charge of the amount of Zakat from the person on whom it is due, from then onwards this person would be considered free of his obligation, even though the amount of Zakat may get lost out of carelessness or is given to a non-deserving person or place. CR # 102. It is not allowed to pay Zakat before it becomes due, however, it is not an offense to give some money as loan to a poor before the time when Zakat becomes due, and afterwards deduct the amount of Zakat which one

may owe from the amount of loan given to the poor before Zakat was due. It oA is not an offense, in the above case, to pay Zakat to some one other than the hi person to whom a loan was given, in which case, the loan would still be outstanding.

CR # 103. If an increase or decrease may take place in the amount given as loan, the borrower would only be responsible for the loss and the increase will belong to him.

CR # 104. If the amount of Zakat is separated or the whole taxable quantity is lost, in such a case, if this may have taken place before any delay which would by itself be considered a reason to make one responsible for the amount of Zakat lost, the person who has caused such loss would be responsible for the same, not the owner of the taxable property. If the above

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357

case may take place after a period as mentioned above, the owner and the person causing the loss would be responsible and the authority in the Islamic Law may ask any of them to pay the amount. If the authority would ask the owner to pay, he would have the right to ask the person causing the loss, but if the authority would ask the latter one to pay, he will not have the right to ask the owner to pay him.

THE

WORSHIP

ASPECT

OF

ZAKAT

CR # 105. Giving Zakat is a worship; thus, as the rest of the worship acts ’Niyat’ (intention) of getting nearer to Allah thereby is one of the conditions for its validity. If Zakat is paid without intention it will not be considered valid; it will still be due on the taxable property. It is allowed to have the intention until the amount of Zakat is existing, but if it gets lost in a way that the recipient would not be considered responsible for the same, the owner

has to pay it again. In case the amount is lost such that the recipient would be considered responsible the owner may charge him with the same amount as Zakat or leave it as loan and pay another amount as Zakat to him. CR # 106. The owner of the taxable property may appoint some one as his agent to pay Zakat on his behalf to the poor, in which case, the agent would be the one who has to have the intention according to an obligatory Ihtiyat, a condition for the validity of this worship act. In the same way one may appoint another person to deliver the amount of Zakat to the deserving people or things, in which case, the owner himself has to have the intention and it would be an Ehtiyat to have the intention from the time he is giving the amount to the agent.

CR # 107. The poor recipient is allowed to appoint someone to receive Zakat on his behalf from a certain person or anyone in general, in which case, the payer of Zakat would be considered free from the obligation when the amount is paid to the agent of the recipient, even though it may get lost in the hands of the agent.

CR # 108. Because of a strong reason it is not necessary to pay Zakat to a qualified Mujtahid at the time when the Imam is not among the public, although it is an Ehtiyat and better to do so. If a Mujtahid may ask people and considers it their obligation to do so as in the case where there is enough reason to make it necessary for them to pay him, it would be necessary for his followers to do so. Even the others would also have to pay him when he may

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358

ask them in the form of the order and not a Fatwa (expression of his view in a legal matter), otherwise, only his followers would have to pay him. CR # 109. It is necessary to make a will about the payment of Zakat, in case, one may die before paying. The same rule is true of Khums and other obligatory rights. In the case of Zakat if the heirs themselves are deserving to receive Zakat, the executor of the will may pay it to them, even though they are the dependents of the deceased. CR # 110. In the first taxable quantity of gold and silver currencies it is an Ehtiyat to pay the poor recipient without deducting the fraction which is involved therein, although it is allowed to do so. CR # 111. It is Mustahab for the recipient of Zakat to pray for the payer, the owner of the taxable property, regardless, the recipient is the authority in the Islamic Law or is a poor or the tax collector.

CR # 112. It is Mustahah to pay a greater share to those who are of greater virtue in religion as it is Mustahah to give preference to one’s relatives and those who do not ask, to those who ask for Zakat.

CR # 113. It is Makruh for the owner of the taxable property to ask the recipient of Zakat to sell it back to him, however, if the recipient wants to sell it, the owner of the taxable property has the priority to buy it and it would not be Makruh for him to buy. The same would be the case if the payer may become the owner in an unintentional way, as in the case of receiving it back through inheritance.

PART TWO:

FITRAH

(PEOPLE’S ZAKAT) CR # 114. People responsible to pay the above form of Zakat must have the following qualifications: (a) Maturity as regards age which is fifteen years in the case of males and nine for the females. (b) Freedom which means non-slavery. The slaves who have made a contract with their masters to be set free on paying certain amount of money have to pay Fitrah according to

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Ehtiyat. (c) To be a rich, in the sense as mentioned in the rules of Zakat. (d) Mental soundness. CR # 115. Soundness of one’s mind from unconsciousness at sun set of ‘id night is a condition.

mental-illness

and

CR # 116. The existence of the above conditions are necessary at least for a while before the sunset of the night before the first day of Shawwal until the total sunset of that day.

CR # 117. If any of the above conditions would be missing, even for a short while during sunset or before it, it will not be necessary to pay Fitrah. The same rule is true if the conditions may come into being after sunset, although in the latter case it is Mustahab to pay if the conditions may come into existence within the time between sunset and the noon time of the first day of Shawwal. CR # 118. If the conditions and sunset would take place at the same time, it will be necessaryto observe Ehtiyat. CR # 119. For a poor too it is Mustahab to pay Fitrah. In case, he does not have more than the amount of food which has to pay as Fitrah he may give it to one of his dependents as Fitrah and it could be circulated among his other dependents. At last pay it to some one other than his dependents. The same rule is true if among the dependents there are mentally ill children. The guardian accepts the amount of Fitrah for himself and it is a Mustahab Ihtiyat not to give to others. CR # 120. If someone accepts Islam after the new moon, he does not have to pay Fitrah, but in the case of a non-Shia, it still will be necessary to pay.

CR # 121. When paying Fitrah intention is one of the condition as in Zakat and the other forms of worship.

CR # 122. With the existence of the conditions mentioned before it is obligatory to pay Fitrah for oneself and all his dependents, no matter they are real dependents or invited guests, Muslims or non-Muslims, adults or children. Apparently, even if someone may join one’s family for a short time before the new moon and stays for the night before the first day of Shawwal, even though he may not eat anything with them, still the head of the family

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360

will have to pay the Fitrah for such a person. If someone is invited for breakfast before sunset of the night before the first day of Shawwal, his Fitrah will not be due on the host. CR # 123. Giving an amount of money to someone to the extent that it would be enough for his living needs will not make the recipient as one of his dependents. CR # 124. One whose Fitrah has become due on another person does not have to pay Fitrah, although it would he Ehtiyat to pay, in case the host did(l not pay it willingly or because of forgetfulness. If the host or the guardian is poor, the dependents are responsible to pay their Fitrah, provided, all the conditions are existing in Their case.

CR # 125. If a baby would be born to someone before the sunset of the night before the first day of Shawwal or one gets married at such time, if the wife and the child would be his dependents in the sense considered a condition in this context, he will be responsible to pay their Fitrah. In case, no one could be considered as the host or guardian of the wife, she herself has to pay her own Fitrah, provided, the other conditions would be existing in her case, and there will be no Fitrah on the baby in a situation as the one mentioned above.

CR # 126 If two people become the host of one person, his Fitrah will be due on both of them in equal proportions, if one of the hosts would be poor, he will not have to pay any Fitrah for the guest, but the one who is not poor has to pay only his share of the Fitrah for the guest. If both hosts may have been poor, the guest himself will have to pay his own Fitrah, not the hosts.

CR # 127. The consideration to be paid as Fitrah must be some kind of food, like wheat, barley, dates, raisins, corn or milk. It is Ehtiyat that Fitrah should be given out of the first four kinds of food products. CR # 128 It is not an offense to pay the par value of the above said food products in cash at the place of payment, but not the price of the time when Fitrah becomes due or the place where the payer lives. CR # 129. The amount of Fitrah is three kilos, per head, of the above

mentioned food products. It is not enough to pay less than three kilos from

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the good quality of food of equal price to the three kilos of the same product of a lower quality. Also, it is not enough to give half of the standard amount from one kind of food and the other half from another. CR # 130. It is not necessary to pay the Fitrah for one’s dependents of the same kind of food which he has paid as his own Fitrah. Each one’s Fitrah can be paid from a different kind of food. CR # 131 The time or the payment of Fitrah is the night before the first of Shawwal, and according to Ehtiyat it should be paid off before the ’id prayer. In case, it is not paid within this time, it will be alright to pay before noon, however, if the amount for Fitrah is separated aside, it is not an offense to

delay giving it to the deserving people on Some reasonable ground. In case, it | is not paid before the noon time nor is separated aside, it would be a necessary Ehtiyat to pay with a general intention of paying what he owes to set free himself from the obligation of paying Fitrah. CR # 132 The amount of Fitrah could also be given as loan to a deserving person before the month of Ramadan and at the proper time consider the said amount as Fitrah paid to that person.

CR # 133. The amount of Fitrah can be separated aside from the kinds of food products mentioned before or in the form of their price in cash. According to a necessary Ehtiyat, it is not valid to separate aside such amount in a way that it can not be distinguished from the rest of one’s property or from the property owned by several people. CR # 134. When the amount of Fitrah is separated, one is not allowed to change it. If one delays giving it to the deserving people when it is possible for him to do so, and the amount gets lost, he will be responsible for that amount.

CR # 135. It is allowed to send the amount of Fitrah to some other place if no deserving people would be available in one’s home town. However, with the existence of the deserving people in one’s home town it would be a Mustahab Ehtiyat not to send it to some other place if it is sent and it is lost before reaching the needy it is obligatory to pay again. In case, one is on a journey, it will be no offense to pay the Fitrah wherever he is, when Fitrah becomes due.

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362

CR # 136. Fitrah can be given to the people and causes mentioned as the deserving recipients of Zakat.

CR # 137. A Hashimite is not allowed to receive Fitrah from non-Hashimites. However, they may receive Fitrah from other Hashimites. CR # 138. A Hashimite is allowed to receive the amount of Fitrah which is

due on his dependents. CR # 139. When there is no deserving Shia available, it is allowed to pay Fitrah to the non-Shias who are not capable of understanding the need to follow the Shia school of law.

CR # 140. It is allowed for the person on whom Fitrah is due to pay it himself to the needy people, however, it is better and an Ehtiyat to pay it toa qualified Mujtahid. CR # 141. It is a necessary Ehtiyat that less than the amount of Fitrah due on one person should not be given to a deserving person unless there is a number of needy people and the standard amounts is less than their number.

ISLAMIC

LAWS

OF WORSHIP

PARTS

KHUMS

THE

PROPERTY

TAXABLE

363

(AccorDING

To THE

RULES

OF

KHUMS)

(1) THE

SPOILS.

It is the moveable property seized in a battle from the non-Muslims with whom fighting is lawful. Twenty percent of such property belongs to the Imam (a.s.), provided, the fight took place with his permission or his representative such as a Qualified Mujtahid. The same rule applies even if his permission was not given and the fighting had been in the form of an attack to call and an invitation to Islam or a defensive move. CR # 1. Whatever is taken from such people, without fighting, in the form of Islamically illegal interest or false claims will not be subject to Khums according to the rules of spoils. They will simply be dealt with according to the rules of net savings by usual earnings, (perhaps under the rules of the property of unknown owner). CR # 2 According to authentic sources a standard quantity is not a condition in the case of spoils. Spoils must not be usurped from a Muslim or those whose property is protected by the Islamic Laws. The usurped spoils must be returned to the owner. If one has obtained the property of hostile non-Muslims by usurpation or has been entrusted with it etc., it will be considered as if it is his own property.

CR # 3. The property obtained from the people bitterly hostile to the qualified successors of the Prophet (the Imam a.s.), according to a necessary precaution, will also be taxable, and will be dealt with by the rules applicable to spoils.

(2) MINERALS. This includes gold, silver, lead, brass, carnelian, turquoise, ruby, kohl, salt, tar, oil, sulphur, etc., it is Ehtiyat to consider limestones, different forms of

limestones, millstones, and whatever are thought to be beneficial minerals as true minerals. Evidently, the taxability of the latter category will be dealt with according to the rules of normal earnings, not by those of minerals. In the

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& PROPERTIES

SUBJECT TO KHUMS

364

case of minerals it doesn’t matter whether they are found in someone’s property or a land which is lawful to use. CR # 4. In the taxability of minerals the standard quantity is a condition. This quantity is equivalent to twenty dinars which is equal to 15 Mithqal of gold currency. This standard quantity applies to all the minerals. It is a necessary Ehtiyat to observe the standard quantity of gold and silver currencies; the exact quantity is taxable, even before the deduction of the expenses and purification of the minerals. If a standard quantity is obtained, Khums will be due on the amount which is left after the deduction of the expenses and purification. CR # 5. The second condition is that the standard quantity should be obtained at one time. Thus, there is no Khums if it is obtained at several

intervals, even if the total amount is the standard quantity. However, after starting to dig for a certain mineral if one changes his mind and starts again, if this will not be considered as obtaining them at different times, the obtained standard quantity will be taxable. CR # 6. If a group of people join together to obtain certain minerals, if each one’s share obtained is a standard quantity, this also is taxable. CR # 7. The minerals of someone’s land belongs to him, provided, they are considered part of his land. Even if someone digs it out without the permission of the owner it will still belong to him (owner) and it will be incumbent on him to pay Khums. if the mineral is obtained from a conquered land which belongs to the Muslims, it will be the property of the one who obtains it, provided, he has done it with the permission of the qualified leader of the Muslims, according to a necessary Ehtiyat. Such minerals will be subject to Khums. Whatever is obtained from a barren land during a conquest will belong to the one who has obtained it and he will have to pay its tax. CR # 8. If one doubts whether the minerals in his possession amounts to the standard quantity, it is a necessary Ehtiyat to find out.

(3) TREASURE. This is a property stored somewhere in the land, such as inside walls, etc. It becomes the property of the finder and he has to pay its Khums. This only applies when the’ property is in the form of gold and silver currencies. Treasure in other than these currencies form according to a necessary Ehtiyat, will not be dealt with by the rules of treasures. One condition of the

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taxability of a treasure is that the finder must have decided to own it, provided, he does not know that it belongs to a Musiim. It does not matter whether he has found it in the lands of those who are at war with The Muslims or in Muslim lands, nor does it matter, in the latter case, whether it

was a barren land during the conquest or an established one or it was found in ruins whose inhabitants had just vanished, regardless, it had some Islamic

markings or not. Standard quantity, in this case also is a condition which is equal to the first standard quantity of taxable gold and silver by the rules of Zakat. It does not matter, if a treasure has been dug out at one time or at

several intervals. The expenses are deductible; the standard quantity is the one which exists before such deduction, and in the case of the distribution between a group of finders if each one’s share is standard quantity he pays Khums. If the finder comes to know that it belongs to a Muslim who is alive and he knows him, the finder must return it to him. If the finder does not

know him in person, he should describe his findings publicly (in order to find the owner). If the finder does not know the owner and the property is not describable, he should give it in charity on behalf of the owner, according to a necessary Ehtiyat. If the owner was a Muslim of the remote past, evidently,

the finder will become the owner and will have to pay the Khums. According to a Mustahab Ehtiyat it will be dealt with by the rules of a legacy without heirs.

CR # 9. If one finds a treasure in his own land, if his ownership is because of reviving such land, the treasure will belong to him, he will have to pay the Khums unless he knows that it belongs to a living Muslim or a Muslim of the past, in which case, it will be dealt with according to the above mentioned relevant rules. If he has become the owner by purchasing or other such ways, according to Ehtiyat, the previous owner or owners should describe it in public. If they find the owner they should give it to him. If they cannot find him, the owner before them should describe it, provided, he knows that

treasure existed on his property during his ownership and so on. If no one finds the owner, it will become the property of the finder, provided, he also docs not know that it belongs to an existing Muslim or a Muslim of the past, otherwise, it should be dealt with according to the above mentioned relevant rules. The same applies if one finds a treasure on someone else’s property which is at his disposal on account of leasing, etc. In this case too, the owner of the land has to describe it publicly and on finding the owner give it back to him, but if he can not find the owner, according to a necessary Ehtiyat, the owner before him has to describe it, provided, he knows that such treasure

existed on his property. If no one can find the owner, it will become the

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& PROPERTIES

SUBJECT TO KHUMS

366

property of the finder, unless he knows that it belengs to an existing Muslim or a Muslim of the past, in which case, it will also be dealt with according to the above mentioned relevant rules. CR # 10. If one purchases a horse and finds some valuables in its stomach, the seller should describe it publicly (in order to fin(l the owner). If he cannot find the owner it will become his property. The same rule applies for other animals which were under the custody of the seller. If one purchases a fish and finds some valuables in it, it will become his property, and he will not need to describe it publicly. In all cases, it is not necessary to pay Khums because of the rules of treasure. They will simply be dealt with according to the rules of normal earnings.

(4) VALUABLES DIVING.

TAKEN

FROM

THE

SEA_

BY

Such property is only taxable if in the form of jewels etc. CR # 11. It is a necessary Ehtiyat to pay Khums on such valuables even if they are less than a dinar in value.

CR # 12 If such valuables are obtained by some instruments and not by diving, it is necessary to pay Khums for it according to Ihtiyat.

CR # 13. The valuables taken from large rivers will, evidently, also come under the rules of valuables taken from the sea by diving. CR # 14. There is no objection about the taxability of coral, provided, it is taken out by diving. It is taxable even though it has been obtained from the surface of the water or sea-shore, according to Ehtiyat.

(5) LAND TAXPAYER FROM

PURCHASED

BY

NON-MUSLIM

MUSLIM.

It is a strong evident that such land is taxable, regardless of being cultivated or barren or whether it is designed for housing or the like. It is also not

necessary for the contract to have as its subject matter a piece of land. Even if the subject of the contract would be a house or other establishments such

ee ik

Tia

Ne

eS "7

Agi

ISLAMIC

LAWS

OF WORSHIP

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as shopping centers, etc., still the land will be taxable. In the same way, it

does not matter whether the land is transferred to such a person through an exchange or without a price. CR # 15. If a non-Muslim purchases some land from a Muslim and then becomes a Muslim he will still have to pay Khums. The same rule applies if such person sells it to a Muslim. If he purchases the same land from a Muslim for the second time, he has to pay another Khums. If the first Khums was paid from the substance of the land the second Khums would be twenty percent of the remaining 4/5. If he did not pay the first Khums the substance of the land, the second Khums will be twenty percent of the substance of the whole land. If a Shia purchases such land he is allowed to use it without _ paying Khums.

CR # 16. Khums will be due on the substance of such land. A non-Muslim taxpayer has the choice to pay the Khums either from the substance or an equivalent price of the amount of Khums. Whichever one he pays it must be accepted. If he purchases a land with trees and houses and it has been agreed that they should remain there on a rental basis or free of charge, the land should he appraised according to its existing condition and the Khums paid

according to that price. If it was agreed that the trees and houses be removed, in this case too, the land should be appraised according to its existing condition and the Khums paid. If a non-Muslim taxpayer purchases a land with the condition that the Muslim seller pay the Khums or that he himself will not pay any Khums still Khums will be due, and the condition will be considered If it is said that Khums has to be paid on his behalf, the condition will be valid and the obligation of paying Khums will nct be fulfilled unless it is paid.

(6) LAWFUL ONE.

PROPERTY

MIXED

WITH

UNLAWFUL

If some lawful property gets mixed with unlawful one, if amount cannot be distinguished the quantity determined nor the true owner found, it will become legal property with the payment of Khums. It is Ehtiyat that such Khums be given with a general intention, ic. a payment of Khums or Mazalim (Mazalim means to pay charity as a redemption for valuables obtained in an unlawful way and one is not able to reimburse the owner either because he does not know him or because it would be dangerous for him to do so). If the amount of illegally obtained property is known but not

KHUMS

& PROPERTIES SUBJECT TO KHUMS

368

SN

the owner, it must be given to charity on behalf of the owner, regardless, such an amount is equal to the amount of Khums or more or less than that. If the owner is known but not the amount, they have to come to some agreement. If the owner does not agree, one is allowed to pay him the lesser amount, provided, the owner will accept the specified amount, otherwise, they have to refer to a legal authority to settle the dispute. In such a case, if the owner accepts the specified amount the matter will be settled. If he does not know, the authority must force him to. If both the owner and the amount are known, it must be given back to him and the work of specifying such property must be based on mutual agreement. CR # 18. If the amount of such property is known and also the owner, not in person but as one in a numberable group, it is Ehtiyat to obtain the consent of the whole group not to hold him liable. If this is not possible, there can be several ways of dealing with the problem, of which one, would be to distribute it among them proportionately. The same rule applies when the amount is not known and the owner is one of a group of numberable people.

CR # 19. If one is liable for an illegally obtained property which is no longer at his disposal, there is no ground for Khums. In this case, if he knows the kind, the amount and the owner of such property, he must give it back to him. If he docs not specifically know the owner but he is one among a numberable group, it is a necessary Ehtiyat for him to obtain the consent of the whole group not to consider him liable. If this is not possible, the owner must be determined by casting lots. If the owner is one of a group of numerous people, it must be given as charity on his behalf, and it is a necessary Ehtiyat that this be done with the permission of a high authority in the Islamic Laws. If the kind of such property is known but not the quantity, one is allowed to relieve himself of the obligation by paying the lesser amount. The above rules apply also if the owner is known of as only one among a group of numerous people, or an innumerable group. The same rules apply if the kind of such property is known and it usually is exchanged for its price (not by weight or measure), and one is liable without the property being at his disposal. If the kind is not known and the property is an item of a category of a whole product, if it is possible to reach a settlement with the owner it will solve the dispute, otherwise, it is possible to solve the dispute by casting lots to determine the item.

CR # 20. If the owner is found after Khums is paid, evidently, one will not be owing anything to the owner.

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CR # 21. If after paying Khums one comes to know that the amount of illegally obtained property is more than what was paid as Khums, it is necessary to pay the difference. If the Khums paid was more than the amount of the property in question, it is not lawful to ask a refund for the extra amount.

CR # 22 If the illegally obtained property general or specified endowments, and is property, it cannot be made lawful by paying will be to refer to the relevant peau such Khums, Zakat etc.

is from Khums, Zakat or any mixed with one’s own lawful Khums. Obviously, the solution as the deserving recipients of

CR # 23. If a lawful property has become subject to Khums and has been mixed with unlawfully obtained property, it is said that it is necessary to pay the Khums first, then deal with it according to the relevant rules of such a mixture. For instance, if one has seventy five dollars, he must pay the 20% first and deal with the remaining forty eight dollars according to the relevant rules. It is evident that one will deal with it as follows: (a) Separate aside the amount of Khums due on the lawful property. (b) Then pay Khums out of the remainder. For instance, if fifty dollars of the seventy five dollars is known to be lawful and subject to Khums, if it is unknown whether the amount of illegally obtained property is more or less than 20%, it is sufficient to first separate aside ten dollars as the Khums of

the fifty dollars and pay the Khums of the rest. After paying the above amounts he will have left with him fifty two dollars. CR # 24. If one disposes such a mixture without paying the Khums, Khums will still be due and he will be liable for it, and will have to pay it to the proper recipient if he knows the exact amount. If he cannot decide between the lesser or greater amount, he is allowed to pay the lesser amount, but it is Ehtiyat to pay the greater.

(7) NET

SAVINGS.

This is the amount of property which is saved after deducting one’s expenses

of the whole year and that of his dependents. The source of such income could be one’s special skills, agriculture, trade, rent or that which is obtained through other lawful means other than the six above mentioned categories of

valuables. In fact, it is a strong view that all kinds of income over which one

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& PROPERTIES SUBJECT TO KHUMS

370

has assumed ownership such as gifts, donations, prizes, income as a result of

a bequest, profit from a general or special endowment and according to necessary Ihtiyat income from unexpected inheritance all must be taxed. Evidently, there is no Khums on the amount of one’s dowry( Mahr) or on the money which the husband receives from the wife because of his agreeing to set her free from the bond of marriage.

CR # 25. It is Ehtiyat, if not a strong viewpoint, to pay Khums on the net savings resulting from receiving Khums, Zakat, expiation, Mazalim CR # 26. If one has some property which is not subject to Khums or whose Khums has already been paid and if it increases or grows and such increment is separated from the original like the young of animals, fruits, milk etc., or such increments as could be considered separable by common sense, according to Ihtiyat there will be Khums on such an increase. Also, in the same way there will be pay Khums on inseparable increments like the growth of trees of fattening of sheep, provided, such increments could be considered an increase in one’s property. If the market price of something goes up without a substantial increase in the original, if the original was purchased for business purposes, such a price increase will be subject to Khums. If it was not purchased for business purposes, it will be subject to Khums according to necessary Ihtiyat. If it is sold for a higher price than it was bought, there is no Khums on the difference. However, that difference will be included in the income of the whole year.

CR # 27. Those who own cattle have to pay Khums at the end of the year for the profit from the cattle such as from their wool, ghee, milk and young. If some cattle are sold during the year their price will be subject to Khums, provided, it remains in one’s possession until the end of the year. The same will apply to other animals.

CR # 28. If one establishes a garden and plants trees therein to make profit out of their fruits, there will be no Khums on the garden as long as either taxed money or a money free of tax or taxable money from the previous year’s income was spent for this establishment. It is necessary to pay Khums on what was spent on the garden. If before the end of the year its (gardens) income has been spent on the garden, it is necessary to pay Khums on the cost of improvements made to the garden after the yearly expenses have been

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371

deducted. Also, it is necessary to pay Khums on separable increments, like fruits, leaves and wood which is to be sold. Also it is necessary to pay Khums on inseparable increments as mentioned before. It is necessary to pay Khums on trees planted during the second year even though they were taken from taxed trees, and also on plants growing on their own, provided, they have some value. In brief, whatever new property comes into being will have to be

taxed at the end of the year after the deduction of the yearly expenses, and there is no Khums on the increase of the price in this case. If it is sold for more than what was spent for it, the extra money will be subject to Khums, as being a part of the yearly income. If the improvement in the garden enables it to be used for business purposes, it is necessary to pay Khums on the increased price of the garden at the end of the year, even though it has not been sold. CR # 29. If the price of a substance which is purchased for business increases during the year but is not sold on account of unawareness of this increase, expectation of further increase or for other reasons and at the end of the year the price returns to normal, there will be no Khums on that increase. If that

increase remains until the end of the year and the substance was not sold for no valid reason and after the end of the year the price decreased, one will be liable for the Khums of such increase. CR # 30. There are two factors to note about deductible annual expenses: (a) Expenses to make profit. (b) Annual necessities. Expenses to make profit includes the cost of labor, rent of the premises, governmental taxes and depreciation of instruments used for profit making. Annual necessities are those which one spends in a reasonable way for one’s own living and that of one’s dependents. They include charities, expenses for pilgrimage, gifts, reasonable prizes, expenses for guest, payments of one’s liabilities because of vows or expiations, payments of debts, compensations of damages done to other people’s property, intentionally or mistakenly, transportation costs, employments, books, furniture, weddings for children, circumcision for children, regardless, the legal status of such expenses is preferable, necessary, permissible or abominable. It is necessary that such necessities should have already been paid for. Thus, if one acts in a miserly manner it will not affect the tax due on what had been saved. In the same way, if someone volunteers to pay for either all of someone necessities, such payments will not be

deducted from the savings. It is also necessary that what is spent on these annual necessities be reasonable. Whatever is spent foolishly, extravagantly or unreasonably will be subject to Khums. Evidently, if an expense has some

KHUMS

& PROPERTIES SUBJECT TO KHUMS

BIZ

legal desirability, that will be deductible, even though it would be a very rare occurrence in the case of an individual such as establishing a Mosque, and or

entertaining numerous guests for a person of low Income.

CR # 31. The beginning of the year is the time when a certain profit comes into being; thus, each profit has its own year. However, it is allowed for a person to determine a certain date as the beginning of his accounting year; he must finalize his account exactly one year from that time, even though he may have different sources of income such as business, rents, agriculture, etc., he must pay Khums on whatever has been saved after deducting his yearly expenses. He is also allowed to have a separate accounting year for each kind

of income. CR # 32 If one needs some capital to invest to make a living for himself and his dependents and obtains some money which is not more than his yearly necessities, evidently, such money will be considered as part of his yearly necessities. He is allowed to invest such money as his capital to make his and his dependents living; his profits will only be taxable if it exceeds his yearly expenses. If he obtains some money which exceeds his yearly necessities, he will still be allowed to lake an amount equal to his yearly necessities from such money and use it to make a living for himself and his dependents; there will be no Khums on that amount. The remainder and the profit exceeding his necessities will be subject to Khums. Those who do not need a capital for business to make their own living and that of their dependents are not allowed to deduct an amount from their yearly income as capital for a business without paying Khums first. The rules about the capital for business also apply to whatever one needs for his profession like agricultural or medical equipments. Sometimes it is necessary to pay Khums on the cost of such tools and sometimes it is not. When it is necessary to do so, if at the end of the year the price decreases, only the current price will be subject to Khums. CR # 33. If during a year one’s capital decreases, he is allowed to compensate the loss from the profit of that year. However, he is not allowed to compensate such loss from the income of the coming years. The same rule applies to depreciation of equipments. CR # 34. In regard to the yearly necessities, it makes no difference whether the substance of the income or the profit is consumed, like food and drink, or the substance remains, still, in all cases, they are deductible. If one has some

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property before starting to make profit, the price of such property is not deductible, it will he considered as though it is not part of the yearly necessities.

CR # 35. It is allowed for one to of that year even though he may for business. It is not necessary other property or business capital

deduct his ycarly necessities from the profit have some property other than his capital to deduct the yearly necessities from the or divide it on both.

CR # 36. At the end of the year whatever is left from what had been bought as yearly expenses will be subject to Khums according to Ihtiyat. However, expenses made for certain items that are only needed for a certain length of time and whose substance still remains without being needed any longer, will still be subject to Khums, such as seasonal clothing and jewelry which women do not use during their old age. CR # 37. If an item of yearly necessities is purchased with taxed money and while using it during the year its price increases, one is not allowed to deduct its price at the time of its use. What is deductible is its price at the time of purchase. CR # 38. If whatever is strode as a ycarly necessity, purchased with taxed money, remains until the second year, there will be no Khums on the increase

of the price, and one is not allowed to compensate from the income of the second year if the price decreases. If one buys something with the substance of a year’s profit then discovers that such an item was not needed, in this case, he has to pay its Khums. CR # 39. It is a Mustahab Ehtiyat that Khums should be paid for the purchase price of such an item if its current price has decreased. The same tule applies if one purchases something to make profit and with the knowledge that such an item will not be needed, such as certain items of furniture or jewelry which people may buy for the future or gardens and houses which may be bought to make profit. In all such cases, their present value will be taxable, not their cost, even though their present value might be less. The same rule applies if such things are bought on credit and are paid from the year’s income. Only their value of the end of the year will be taxable. It is a Mustahab Ehtiyat to take into consideration in all cases the cost.

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& PROPERTIES

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CR # 40. One item of the yearly necessities is the expanses for Hajj, no matter it is obligatory or optional. If Hajj becomes due during a certain earning year and one does not fulfill this duty, even though it is on account of

disobedience, the amount to be spent for Hajj is subject to Khums and it will not be considered as part of the yearly necessities. If Hajj becomes obligatory for one because of what one has saved for several years, whatever is saved during those years will be taxable, but not the savings of the year which completes the required amount of money for Hajj, to be performed in that year. Hajj will only be necessary if after paying Khums the remainder will still be enough for its expenses. If hajj is not performed in that year because of disobedience, it becomes necessary to pay Khums on the money that was supposed to be spent from the income of that year on Hajj. CR # 41. If one has gradual earNings with which in the first year he buys land to build a house, in the second year some material and further material during the third year, such expenses will not be deductible; they are considered to be future necessities. CR # 42 If one hires himself out, his wage will be considered as part of his yearly income and his future salary the income of the coming years. If one sells the product of several years from his garden in advance, the total amount will be considered as the income of the year when the deal was made and will be taxable after the expenses and depreciation of the garden have been deducted. CR # 43. If one pays some money as Khums in advance and at the end of the year wants to finalize his account, if what he has paid is from the income of the same year, that also will be considered taxable. CR # 44. Paying debts is deductible, whether the borrowing may have taken place during the earning year or before it; whether the payee was able to pay it before or not. However, if one docs not pay ones debts until the end of the year, Khums will be due before the deduction of the payable debt unless the debt itself was part of the ycarly necessities and was incurred after the income was received. In such a case, one is not without grounds to consider it as a deductible item. Also, there is no difference whether the debt is a religious due such as Khums, Zakat, vows, expiations, other liabilities conditions included in contracts etc. or of other types. In all such cases, if

such debts are paid during the earning year they will be deductible, even though they were borrowed during previous years. If they are not paid in the

ISLAMIC

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earning year, they will not be deductible even committed a sin by not paying them on due time.

375

though one may have

CR # 45. If one buys things, not of the yearly necessities, on credit or borrows money to increase his capital and has an existing asset equivalent to the debt and such an asset is not of the yearly necessities, he is not allowed to pay his debt from the income of the accounting year. His income must be taxed, then his debt paid or he may pay his debt from his non-taxable property.

CR # 46. If one turns over his capital several times, sometimes losing money and sometimes making profit, if the loss takes place after the gain or at the same time, he may compensate the loss from the gains. If the result is neither profit nor loss, there will be no Khums, but if the profit exceeds the loss, he

has to pay Khums for the remaining profit. If the loss exceeds, there is no Khums. If the gain comes into being after the loss, off-setting is lawful in this case. The same rule applies if one invests his capital in different merchandising items; in some of which he losses and in others gains. Also, the same is the case, if some of his capital is destroyed or is spent on his necessities or even if he has spent for his necessities some other money after making some profit; i.e. it is lawful to off-set the loss from the income. The same also applies to cattle owners. If they sell some cattle for their yearly necessities, some die or are stolen, at the end of the year they may off-set their loss from their profit and pay Khums if any taxable items are left. If the off-setting cannot be managed from the profit of the whole year, there will be no Khums. CR # 47. If one has two ways of earning like business and farming, and if he gains in one and loses in the other, he may off-set his losses from the profit and pay Khums from the rest. CR # 48. If one loses some property which was not used as a means of living nor was it of his yearly necessities, in this case too, off-setting it against the yearly income is objectionable. Evidently, it is not allowed.

CR # 49. If one’s home or some of his property which is part of his yearly necessities is destroyed such as furniture, clothes, car etc., in this case too,

obtaining relief from the ycarly income is objectionable. Evidently, it is not allowed. However, one is allowed during the earning year to build a house or

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& PROPERTIES SUBJECT TO KHUMS

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buy what was destroyed, provided, they are part of the yearly necessities. This will be considered a way of handling one’s deductible yearly necessities.

CR # 50. If one buys some profit bearing item and the contract gives him the option to annul it, but then such contract, for some reason becomes binding

and the seller asks him to annul the contract in question and he also agrees for such dismissal, Khums will still be due on the profit unless the contract in question because of its nature is doomed to be annulled as it is true in most of the contracts that include the option of dismissal upon the refund of the price. CR # 51. If some property is purchased in exchange with the substance of a property from which Khums is not paid and the buyer says to the seller, " I purchase this property in exchange for this property" , if the Sharia authorities approved the Khums due on it the deal is valid and the buyer is responsible to pay Khums of the property he has purchased and if the authorities did not approve the deal is not valid to the degree proportionate to the amount of Khums due on the property, and if the property is still existing the authorities will demand the seller for Khums if the property is not existing any more the authorities will demand from either the purchaser or the seller.

If the profit obtained from such property would be some grains which after being planted would be existing in the form of some farming produce, only the grains in question would be subject to Khums, not what stands in the field in the form of a planted farm. In the same way Khums will be due only on the eggs which have been hatched to fouls. If the profit of a property would be the branches of some trees that one has planted them to become independent trees, one has to pay Khums for the trees. In general, if the increase is in the form of reproduction, the original will be subject to tax, if it is in the form of growth, the product will be subject to Khums. CR # 52. If one finalizes his account and pays the Khums for his taxable property but after the payment discovers that he has paid more than he had to pay, in such a case, he is not allowed to deduct such over payment from the tax of the coming year. However, he is allowed to ask for a refund from the recipient, provided, the substance paid is still existing or the recipient has full knowledge of the situation, even though what is given to him has already been consumed or destroyed.

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CR # 53. In the case of the agricultural products, if at the end of the accounting year only some of them are ready for consumption but not the others, one has to pay only Khums for that which is ready, and finalize the account of the rest at the end of the coming year. If a product that is not yet ready for consumption at the end of the accounting year may have some existing roots of due market value, it is necessary to pay Khums for such product. For instance, if at the end of the accounting year some of one’s wheat plantations would have already produced ears and some of them have not yet produced ears, in such a case, one has to pay Khums for the whole product. However, if the ears only appear during the next year, it will be considered as part of the profits of the following year. CR # 54. If one’s means of living is obtaining gems of the sea by means of diving or digging out minerals, he is only required to follow the relevant rules of the minerals and the valuables taken out of the sea. He does not have to consider what he obtains also subject to Khums as being part of his annual income. CR # 55. A working woman has to pay Khums for her savings, provided, her living expenses are paid by her husband or her earning is more than her expenses, in case, the husband does not maintain her. The same rule applies to whatever things of value that she may receive from her own earning or from other sources. In general, all responsible people have to have an accounting year and pay Khums for their taxable earnings. CR # 56. Evidently, maturity and freedom from mental-illness are of the conditions that must exist in order to consider the owner of all the different categories of the valuable properties responsible to pay Khums. A child and one who is suffering from mental-illness have to pay Khums only after maturity and recovery according to Ihtiyat, they must pay Khums for whatever they owned during the absence of the said conditions and their guardians have not yet paid. CR # 57. If one buys with the money of the income of a certain year something which is not part of his yearly necessities and the price of such item increases, he has to pay its Khums. If such item is purchased on credit and one has to pay for it from the taxable property, only what is paid for it will be subject to Khums and there will be no Khums on the amount of some increase in such item’s price, if any, as long as the item is not sold. If one

knows that the price of the item in question was paid from the money on

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which Khums was due, but doubts whether the purchase took place during an accounting year, so that he would have to pay Khums for what is increased in the price of the item as well, or it was after the accounting year in which case one has only to pay Khums for the price paid, in such a case, according to Ehtiyat, one should reach an agreement with the legal authorities. CR # 58. If one has not paid Khums for several years during which money has been earned and different valuables have been purchased, he has to pay Khums for his belongings with the exception of his yearly necessities. In the case of one’s yearly necessities the following rules must be followed: If an item is paid for from the income of the year of purchase, there will be no Khums on it, if it is paid for from the income of the years before, such items will be subject to Khums. In the latter case, it makes no difference whether in the year of purchase there was no income or it was only enough for one’s necessities.

CR # 59. An accounting year starts whenever an income is received, however, one is also allowed to change the beginning of his accounting year and start a new one by paying Khums for all the taxable incomes that he has, before such decision. It is also allowed to maintain one’s accounting year according to any calendar he may choose. CR # 60. At the end of the year it is necessary to pay Khums for all the unconsumed food materials that were stored for the yearly necessities. However, if there is some outstanding loan that was borrowed for one’s yearly necessities and the amount of loan is equal to the value of the unconsumed rood material, there will be no Khums on them. If such items

remain for the coming year and the loan is also paid in this year, the remaining items of unconsumed food materials will be considered as part of the income of this year. Thus, Khums will be paid accordingly. The same rule applies to the item purchased not for the yearly necessities, but there would be an outstanding loan of equal amount to the price of such item and the loan would be taken for one’s yearly necessities. CR # 61. If one vows to spend half of his income of a certain year for a legal cause, he must act accordingly, and the amount spent is deductible, provided, it is spent during the accounting year. If the said amount is not spent during the year of income, it will be subject to Khums as well as the other half of one’s income after deducting his yearly necessities.

ISLAMIC

LAWS

OF WORSHIP

CR # 62 In case one’s capital is an amount same after using it in a business, besides the pay Khums only for the asset, but there is no rents, etc. However, the money paid as a according to he situation, for some items one paid for some times equal or less.

379 of money which he finds it the asset and expenses, one has to Khums on the expenses such as goodwill should be dealt with may get more than what he has

CR # 63. The money paid as Khums for the savings of the previous years will not be considered as the expenses of the year in which such Khums is paid. CR # 64. If at the end of the year one’s savings is existing as outstanding loan, if it is possible to collect them, he has to pay the Khums. If it is not possible, he has the choice of either to pay Khums and collect the loans in the coming year or wait until the loans are collected, then pay Khums. The amount collected will be considered as the income of the previous year, not of the year when they are collected. CR # 65. Khums becomes due as soon as some income is received, but it is

allowed not to pay it until the end of the year for the sake of precaution to have enough money for one’s yearly necessities. If the money spared for the above reason is lost, one will be responsible tor its Khums. The same rule applies when such money is misused or given as unnecessary presents, etc. It is a Mustahab Ehtiyat to pay Khums if one knows that he will not need to take such precautionary measures.

CR # 66. If one dies during the year, the deductible amount will only be those spent up to the time of his death, not what is spent up to the end of the year. CR # 67. If the heirs know that the deceased had not paid Khums of the legacy, it is necessary, to pay Khums for the whole Legacy. If they know that the deceased had some taxable property, in this case also it is necessary to pay such Khums from the whole legacy like the other kinds of debts. CR # 68. Believing that one has made some profit, if he pays some amount as Khums, then discovers that no Khums was due on him, he may ask the recipient for refund if what is given to him as Khums is still existing with him or it is already spent out, but the recipient is aware of the situation. If one pays Khums at the beginning of the year thinking that he will not need more money for his necessities, but later discovers that more money is needed or

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some unexpéctéd need may emerge, in this,case, he will not have the right to ask for refund, even though what is given to the recipient would still be existing with him. CR # 69. All kinds of Khums becomes due on the taxable objects, but the

owner has the choice to pay from the same object or the price for the same. After the end of the year one is not allowed to use the property on which Khums is due unless Khums is paid. According to Ehtiyat, even some parts of such property also can not legally be used although the amount of Khums is still existing with the remaining unused parts. If one first obtains permission from a legal authority for such purpose, he is allowed to use it, but he will be responsible for the amount of Khums. CR # 70. It is not an offense to have partnership in business with a person who does not pay Khums because of his disbelief in Khums or because of his ignorance or disobedience. The other partner will not be held responsible for him and it will be sufficient for him to pay Khums of his share of income. CR # 71. Although after the end of the year it is unlawful to use a taxable property, but if it is used in a contract it will have no effect on the validity of the contract, except for the amount of Khums in such property, the Sharia authorities demands Khums from either party if the substance of the property on which Khums was due is not existing any more.

THE RECIPIENTS OF KHUMS

CR # 72 At the present time one half of the Khums money belongs to the Twelfth Imam (a.s) and the other half to poor, orphans, the destitute and those of the Hashimites who may run out of money on a journey. All the above mentioned categories of the Hashimites must be believing people. Those of them who may need money on a journey are not required to be needy at home also. It is Ehtiyat that their journey be a lawful one and they must be given just enough to get home. Evidently, justice is not a condition for all the above mentioned people to qualify them as the deserving recipient of Khums.

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CR # 73. It is Ehtiyat if not a strong view, that one person should not be given more than his expenses of one year except those on a journey who may receive Khums even though they may not be poor at home.

CR # 74. The Hashimites are those who belong to these people from the side of their fathers, but those who belong to them only from the side of their mothers, they cannot receive Khums. CR # 75. One’s claim of being a Hashimite must be proved by the testimony of two just people. It is also sufficient as a proof if some people are proved as belonging to the Hashimite people through other confidential reasons. CR # 76. It is not allowed to pay Khums to one’s dependents according to necessary Ehtiyat. However, if one’s wife would have to pay the expenses of people obligatory for her to pay and she is not able to do so then she can receive Khums from her husband.

CR # 77. It is allowed for the Khums payer to independently distribute the half that belongs to the people mentioned above. However, it is a Mustahab Ehtiyat to give it to the legal authorities or pay it to the deserving people by the permission of a legal authority. CR # 78. The half of the Khums money that belongs to the Imam (a.s) at this time has to be paid to a qualified Mujtahid or spent by his permission for a cause which will please the Imam (a.s). It is a Mustahab Ehtiyat that it should be given on behalf of the Imam (a.s) and it is necessary to observe priorities like religious and educational needs of the Muslims, and helping the cause of propagating the Shari’a.

CR # 79. It is allowed to transfer Khums money from one place to another, provided, there lives no deserving recipient at the first place. Even if there are deserving people (at the place where Khums tax has arisen) still a transfer is allowed, provided, it is not because of carelessness or disregarding to pay Khums. It is not an offense to pay Khums to the agent of a deserving recipient who may transfer it to his principal or the representative of a Mujtahid. In the same way the Khums payer who is authorized by the Mujtahid to be in charge of the khums due on him is allowed to transfer it to the Mujtahid.

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CR # 80. If the taxable property is somewhere other than the place of the owner, it is necessary to pay due attention to paying Khums within the shortest possible time.

CR # 81. It is not free from objection to separate aside distinguishably the amount of Khums from the rest of one’s property. If such money is transferred to some other place and it is lost even without the involvement of any carelessness, the Khums payer will have no obligation to pay again. If one becomes in charge of such money on behalf of the deserving recipient or a legal authority, he will be considered free from his obligation. If he may transfer it by the permission of his principal and if the money gets lost, not because of his carelessness, he will be considered free from his obligation but he is allowed to deduct his own expenses. CR # 82 If a deserving recipient would owe some money to the Khums payer, it will be alright to consider such loan as a payment of Khums to the deserving person.

VIRTUE (THE GOOD

AND SINS)

AND

OBLIGATION

PREVENTING

EVIL OF

THEM

URGING

FROM

OTHERS

DO

COMMITTING

This obligation is one of the great religious obligations for Allah has said in the holy Quran, "Believers, among you there must be some people who would call others to righteousness, making them do good and preventing them from committing sins. Such people are those who will have lasting happiness. The holy Prophet said to the people, "What will happen to you when your women will commit indecency and your youths will become wicked ones?" The people hearing the alarmingly news asked him, "Messenger of God, are such things really going to happen?" He replied, "Yes, certainly, it is going to happen." Further he said, "What will happen to you when you will cause others to commit sins and prevent them from doing good? The people asked, "Messenger of God, are such things, in fact, going to happen also? He replied, "Yes", and said, "What will happen will be even worse. There will

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come a time when you will call what is lawful as unlawful and the unlawful ones as lawful." The following statement is narrated from the Imams (a.s.) about this obligation. As a result of making others do good all the obligation will be fulfilled, religions well protected, earrings lawful, exploitations stopped, the land well developed and justice properly maintained. People will always be righteous as long as they urge others to do good, prevent them from committing sins and cooperate with each other in virtuous deeds. If they do not fulfill such obligation, God’s blessings will be removed from among them, they will become each other’s enemies and there will be no one in the heavens and earth to help them."

CR # 1. The obligation of urging others to do good and preventing them from committing sins is a public obligation as opposed to the personal obligation. Thus, if some people in a generation fulfill this duty the others will also be considered free from this obligation. If no one in a generation fulfills this obligation, every one will be held responsible for this obligation. CR # 2 If a deed is preferable to be done, the duty of urging other’s to do such deed will also be preferable. The followings are conditions that must exist before one could be held responsible for this duty: (a) One must know, at least in general, what is virtue and what is a sin. (b) There must be a possibility that others will pay attention to one’s effort of making them do good and preventing them from committing sins. If one knows that others or an individual will pay no attention to what one will tell them to do, it will be considered the absence of one of the required conditions. (c) The people or an individual must be persisting in his or their disobedience of the Law. If there is evidence that they will not disobey the Law again, this also will be considered as the absence of one of the required conditions. The same rule applies to the case when one only thinks that some people or a certain individual will not disobey the Law again. In case, one knows that some people or a certain individual has disobeyed the Law at a certain time, but he does not know whether they are still persisting in their disobedience or not, still it will be considered as the absence of one of the required conditions. If one knows that certain people or an individual has or has decided to disobey the Law, it becomes necessary for him to fulfill his duty of trying to make them not disobey the Law even though he knows that they have decided to disobey the Law only once. (d) The people or a certain individual must not have some acceptable reason for which they do not believe their deeds as disobedience. If some people or a certain individual considers something lawful or unlawful because of mistake or ignorance, this also will be

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considered as the absence of one of the required conditions. (e) In fulfilling this obligation no serious harm must be caused to oneself, his dignity, property or other Muslims, otherwise, it will be considered the absence of one of the required conditions. Evidently, it does not matter whether one knows that such harm will be involved or that the possibility of such occurrence would only be based on some dependable evidence. The rule about the harmfulness of the fulfillment of this duty is only applicable when one is not certain about getting a favorable result. On the other hand, if one knows that the result will positively be favorable, he has to observe the rule about that side which is of greater significance. Thus, sometimes it becomes necessary to fulfill this obligation, even though one positively knows that some serious harm will be involved. CR # 3. As mentioned before, this obligation is not only for a certain class or group of people. If the required conditions would be existing, all the adults of a whole generation will be held responsible for this obligation. Because of the circumstances the fulfillment of this obligation may take place in several degrees: (a) Expressing one’s dislike of and disagreement in certain people’s disobeying the Law by not talking to them or some other ways which would express one’s negative attitude. (b) Taking other measures, such as using different degrees of force to prevent people from committing sins. According to the popular view, in fulfilling this obligation, with a view to the circumstances, one should start with the lesser forceful reaction, then take a

greater forceful measure and so on. It is Ehtiyat that one should not react according to the way mentioned in (b) if favorable result can be obtained by reacting as in (a).

CR # 4. If none of the above mentioned ways of reacting in one’s fulfilling this duty serve the purpose, there are two views about the use of further force that would cause serious injury or death of the disobeying party; according to the stronger view it is not lawful to react as such. However, if one willingly or by mistake may act as such, he will be held responsible for the damage and his case will be dealt with according to the rules of criminal penalties. The Imam (a.s.) or his representatives may take such measures if necessary, and they will not be held responsible for the damage. CR # 5. The fulfillment of this obligation has a greater priority in the case of one’s relatives. One must take effective measures against his relatives if he would see them ignoring or being careless about the rules of their worship and social obligations or the rules of cleanliness or disobeying such rules.

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CR # 6. If one knows that a certain person has disobeyed the Law, not persisting in his disobedience any further, but has not yet repented for his disobedience, it will become one’s obligation to make him repent. Repenting for one’s sin is obligatory and ignoring it is a major sin. This rule is only applicable when the disobeying person would be well aware of his sin, if he is not aware of the sin, it would be objectionable for one to make him repent, although it is a Mustahab Ehtiyat to do so.

AN

ADVANTAGEOUS

REMINDER

Some of the learned scholars have strongly recommended that the most significant instance of fulfilling the obligation of urging others to do good and preventing them from committing sins is one’s own self-discipline. Before anyone else one himself must be obedient to the Laws of God. One should continuously strive to achieve discipline and a higher moral status. Especially, in the case of the religious leaders a continuous hard work for moral accomplishment is one of their great obligations. Their achievement in the field of self-discipline and moral accomplishment will be the best policy of attracting others to follow their example and learn how to obey the Laws of God.

SOME

VIRTUQUS

MANNERS

AND

DEEDS

(a) To seek protection from God for He has said, "One who seeks protection from God has found the way to the Right Path." The sixth Imam (a.s.) has said, "God revealed this to David,"Whoever of my servants will seek protection from Me instead of the others, should know that I Am Well

Aware of his intention. If all the heavens and the earth and all that exists between them would plot against him I will certainly provide for him a safe place and a way out of the surrounding dangers." (b) To have trust in God Who is the Most Kind and Merciful to His servants, Who knows well all about their needs and has all the power to grant them all that they may ask from Him. God has said in the holy Quran, “Whoever trusts God, should

know that God suffices him for all that he may need." The sixth Imam has said, "Wealth and dignity always move around; when they find a place where trust in God exist they also settle themselves therein." (c) To expect good always from God. Imam Ali (a.s.) has said, "I swear by the One Who is the only Lord that God deals with His servants exactly the way they expect Him to, for God is the Most Generous and all virtue is in His hands. He dislikes to

REMINDER

386

ignore His servants who always expect good from Him. Thus, you always expect good from God and seek to get nearer to Him. (d) To have patience in hardships and act patiently against the temptation of committing sins. God has said in the holy Quran, "God will give sufficient reward, without keeping any account, to those who exercise patience." The holy Prophet has said, "Have patience for there is a great deal of virtue in patience and know that after suffering any hardship there always comes relief" Relief always follows hardships, certainly after hardship there comes relief. "Imam Ali (a.s.) has said, "The exercise of patience will always result in victory, even though it may take a long time." There are many kinds of patience; one is to exercise patience when suffering hardships which is a virtuous attitude and better than this is the exercise of patience when one is tempted to commit a sin. (e) To maintain chastity. The fifth Imam (a.s.) has said, "No worship is more virtuous in the sight of God than preventing one’s sexual desires and stomach from involvement in the unlawful things." The sixth Imam (a.s.) has said "My followers are only those who prevent their stomach and sexual desires from the involvement in unlawful things, who

strive hard to please God in the hope of receiving their reward from Him and who are afraid of His punishment. If one would find such people, he should know that they are my followers." (f) Forbearance. The holy Prophet has said, "God never grants dignity to an ignorant one nor He humiliates a forbearing person." Imam Ali (a.s.) has said, "One cannot be considered a true worshipper unless he becomes forbearing." (g) To be humble. The holy Prophet has said, "Whoever is humble before God will receive a higher degree of virtue from Him, but God will disgrace the proud ones. God will make prosperous those who are modest in spending and will deprive those who spend their wealth unnecessarily. God loves those who are much concerned about death." (h) To be just in one’s dealing with others. The holy Prophet has said, "The most virtuous in one’s deeds is to maintain justice,

even though it will be directed against one’s own self and co-operation with one’s brother in faith in God in all circumstances." (i) To pay due attention to one’s own short comings before criticizing others. The holy Prophet has said, "How blessed will be the reward of those whose

fear of God has made them to have no fear of people, whose effort of over-coming their own short-comings has kept them away from criticizing others." The virtuous deeds of the most immediate reward is kindness and the most evil of ali deeds which most immediately brings punishment is the practice of unlawful carnal relationship, finding faults in others and being

ISLAMIC

LAWS

OF WORSHIP

387

blind to those of his own, criticizing others for what he himself cannot avoid or hurt his companion for what is not his concern at all. These are the most

serious short-comings in one’s moral attitude. (j) To reform one’s soul for its growing tendency towards evil. Imam Ali (a.s.) has said, "God will reform the visible faults of those who reform their invisible short-comings and He will look after the worldly affairs of those who strive hard for their religion, one who strives hard to have proper relationship with God, He will improve his relationships with people. (k) To stay away from worldly pleasures. The sixth Imam (a.s.) has said, "As the reward for those who stay away from worldly pleasures God will firmly establish wisdom in their hearts, make it to emerge from their tongues, show them the defects of this life, its sickness and cures

and will take them safe to the peaceful dwelling.” Once a man asked the sixth Imam (a.s.), "I can only meet you after several years. Please teach me some beneficial ideas." The Imam (a.s.) said, "I recommend you to have fear of God, to have piety and to strive hard in good deeds. Never desire to have what is beyond your approach for God told His messenger, (may God bless him). "Do not be envious of what We have given to some men as means of enjoyment and worldly delight. Let not their wealth and property attract you.’

Consider the way the holy Prophet lived. You will find out that his food consisted of only barley loafs and dates and he would use the branches of palm trees whenever he needed some fire. Whenever you face hardships concerning yourself, your property or children, recall the suffering of the Prophet (p.h.) for no one suffered as much as he did."

SOME

OF

THE

UNDESIRABLE

MATTERS:-

(a) Anger. The holy Prophet (p.b.) has said, "Anger spoils faith as vinegar spoils honey.” The sixth Imam (a.s.) has said, “Anger is the key of all evil deeds." The firth Imam (a.s.) has said, "A man who does not control his anger will never be satisfied until he will be driven into Hell fire. Whoever gets angry with his people should immediately sit down for in doing so Satan’s wickedness will go away from him. Whoever gets angry with any of his relatives should get close to him and touch him for this also calms down one’s anger." (b) Envy. The fifth and sixth Imams (a.s.) have said, "Envy consumes faith just as fire consumes fire wood. The holy Prophet one day said to his companions, "The sickness of the people living before you has started to creep among you also. It is envy and it does not shave the hairs but it shaves off one’s religion from him. The way to protect one’s self from it is to hold back ones hands and tongue (from harming others) and never make a jest of his believing brothers." (c) Oppression. The sixth Imam (a.s) has said, The

ISLAMIC

LAWS

OF WORSHIP

389

misfortune of one’s oppressive acts will eventually return to him, to his property or children. There is no virtue in a success through oppression. The oppressed will get much more from the good deeds of the oppressor than what he has taken from the property of the oppressed." (d) Trouble making. The holy Prophet (p.b.) has said, "The worst of men on the Day of Judgement in the sight of God will be those whom people had been respecting for fear of their trouble making desires." The sixth Imam (a.s.) has said, "One from whose tongue people are afraid will have Hell fire for his dwelling. God will be extremely angry with those people from whose tongues others have always been afraid." The End

ISLAMIC

LAWS

OF

CONTRACTS

5)

INTRODUCTION

Business as business to a certain extent is strongly preferable. Sometimes f some other reasons it becomes preferable and/or compulsory when it is means for an obligatory or preferable act respectively. In the same way, becomes detestable and/or unlawful. The unlawful businesses are various.

CR # (1):- Transaction of wines, intoxicating liquors, flesh of dead anima non-hunting dogs and swine is unlawful and invalid, regardless, su transactions are in the form of buying, selling, renting, payment for Ju’ala, dowry (mahr) or what a wife pays to the husband to get divorced. Oth unclean substances, apparently, can lawfully be exchanged in a transactio provided, they have some intended lawful use, like fertilizer and agricultur use and blood for transfusion. Also in the latter case it is lawful to use the in other forms of business transactions or giving as gifts.

CR # (2):- In the case of the unclean substances which cannot lawfully| used in a transaction, it is possible for their owners to have the right appropriating them. For instance, if one has vinegar, and it becomes wine | his animal dies or non-hunting dog catches a prey it is not lawful for others have any of such property from him without his consent. This also applies all other such cases. In such a case, it is lawful for the owner to exchan; such rights in a transaction and receive some other property which th becomes lawfully his. For instance, another person may give him son property to leave such substances for him. CR # (3):- Apparently, the dead bodies of such animals as fish and locus although not unclean, cannot lawfully be exchanged in a transaction even they may have some intended lawful benefits according to common sen which would allow giving of some property in exchange for such dead bodie However, it is allowed to spend some property for such substances to mal the owner leave them to the spender as mentioned in the case of uncle: substances.

CR # (4):- It is lawful to exchange in a transaction those parts of a dead bo which originally have no life such as hairs etc., provided, they have son lawful benefit of some significance.

ars

ISLAMIC

LAWS

OF

CONTRACTS

391

CR # (5):- It is lawful to benefit from the unclean substances, in ways other than those not lawful. Thus, it is not an offence to benefit from the unclean substance as fertilizer or fuel, or paints etc.

CR # (6):- It is lawful to exchange in a transaction the clean dung, wastes and urine of animals, provided, they may have lawful benefits of some CR # (7):- It is lawful to exchange in a transaction the substances which have become unclean, such as oil, honey and fruits, because of coming in contact with some unclean substance, provided, they have lawful benefits of some significance according to common sense. In such a case, it is necessary to let the buyer know that they are not clean. If they may not have any such lawful benefits, it is not lawful to exchange them in a transaction, according to a

precautionary reason, apparently, they will still be considered the property of the owner and he is entitled to receive some property to leave his right to the other party. CR # (8):- The exchange of what is an instrument for an unlawful act, if mostly used for such reason, in a transaction is not lawful such as pipes, idols, crosses, drums, gambling tools such as chess etc. There is no doubt that turntable of songs is one of such items. Likewise, is the cassettes of songs, however, the box of the turntable like radio is of the tools which have both lawful and unlawful use, therefore, it is not an offence to exchange it, as in the case of radio, in a transaction as well as listening news, recitation of the holy Quran and all the recordings that lawfully could be listened to. If television according to the common sense be considered an instrument only for useless amusements, it is not lawful to exchange it in a transaction or use it, but there is no offence to watch its movies if they do not cause excitement to satanic desires or the programs which provide one with knowledge or relaxation. If it so happens that its intended lawful use becomes frequent enough and common sense would no longer consider it an instrument of useless amusements, it is lawful to exchange it in a transaction and use it, thus, it would be like radio, and its unlawful uses are those that arouse satanic desires. There is no offence in exchanging in a transaction the cassette recorders or using them.

CR # (9):- As it is unlawful to exchange in a transaction the above-mentioned instruments it is also unlawful to manufacture or rent them. According to precautionary reason, it is necessary to destroy them (or at least) change their shape. However, there is no offence to exchange in a transaction the materials of which they are made, such as wood or metals,

after changing their shapes or even before, provided, one has confidence in

ISLAMIC

LAWS

OF

CONTRACTS

392

CR # (5) :— It is lawful to benefit from the unclean substances, in ways other than those not lawful. Thus, it is not an offence to benefit from the unclean substance as fertilizer or fuel, or paints etc.

CR # (6):- It is lawful to exchange in a transaction the clean dung, wastes and urine of animals, provided, they may have lawful benefits of some significance. CR # (7):- It is lawful to exchange in a transaction the substances which have become unclean, such as oil, honey and fruits, because of coming in contact with some unclean substance, provided, they have lawful benefits of some significance according to common sense. In such a case, it is necessary to let the buyer know that they are not clean. If they may not have any such lawful benefits, it is not lawful to exchange them in a transaction, according to a

precautionary reason, apparently, they will still be considered the property of the owner and he is entitled to receive some property to leave his right to the other party. CR # (8):- The exchange of what is an instrument for an unlawful act, if mostly used for such reason, in a transaction is not lawful such as pipes, idols,

crosses, drums, gambling tools such as chess etc. There is no doubt that turntable of songs is one of such items. Likewise, is the cassettes of songs, however, the box of the turntable like radio is of the tools which have both lawful and unlawful use, therefore, it is not an offence to exchange it, as in the case of radio, in a transaction as well as listening news, recitation of the

holy Quran and all the recordings that lawfully could be listened to. If television according to the common sense be considered an instrument only for useless amusements, it is not lawful to exchange it in a transaction or use it, but there is no offence to watch its movies if they do not cause excitement to satanic desires or the programs which provide one with knowledge or relaxation. If it so happens that its intended lawful use becomes frequent enough and common sense would no longer consider it an instrument of useless amusements, it is lawful to exchange it in a transaction and use it, thus, it would be like radio, and its unlawful uses are those that arouse

satanic desires. There is no offence in exchanging in a transaction the cassette recorders or using them. CR # (9):- As it is unlawful to exchange in a transaction the above-mentioned instruments it is also unlawful to manufacture or rent them. According to precautionary reason, it is necessary to destroy them (or at least) change their shape. However, there is no offence to exchange in a transaction the materials of which they are made, such as wood or metals, after changing their shapes or even before, provided, one has confidence in

Marketable and not Marketable things

393

the buyer to bring about such change. But without such confidence although, apparently, the transaction is lawful, one has committed a sin for not changing the shape of such object, if the object has no lawful use. In case, there is some lawful use, even very little, it then is not necessary to make the

above-mentioned kind of change.

CR # (10):- It is not lawful to exchange in a transaction the out-dated currencies to deceive people, either as payment or as the merchandise, if the other party has no knowledge of the situation, however, if the other party knows about them, it would be subject to

objection, although, AOA it is lawful. It is not an atfenes apparently, to give such currencies to fend off thereby an oppressor without informing him of the situation. The necessity of changing them is subject to objection. Apparently, it is not necessary to change them. CR # (11):- It is lawful to sell the beasts such as cats, lions and wolves, elephants etc., provided, they have some lawful and valuable benefits and so is the exchange of insects such as silk worms, leeches and honey bees, and the elephant. However, if they do not have any lawful benefit, the transaction is not lawful and valid according to precautionary reason. CR # (12):- The lawful benefits that make a transaction lawful are the lawful benefits which are often and mostly needed and attract the attention of the people of reason to own such substance, regardless of the need being out of emergency, like the case of medicines or the normal needs. CR # (13):- According to the popular view, the exchange of pots made of gold and silver in a transaction for decoration or just to own them, is unlawful. However, according to strong reasons, it is lawful to own them, only to use them is not lawful.

CR # (14):- To exchange copies of the holy Quran in a transaction with a non-Muslim according to precautionary reason is unlawful and invalid. It also is unlawful to make copies of the holy Quran available to non-Muslims unless it is to guide them and show them the right path. It is a preferable precaution not to sell it to a Muslim, In case one wants to receive something in exchange for the copies of the holy Quran, it has to be for its cover etc., or the exchange be made in the form of conditional gift, i.e.. one may give a copy of the holy Quran with the condition that the other party also gives him a certain amount of property. Apparently, it is lawful to exchange the books containing certain verses of the holy Quran, du’as (prayers) or the name of Allah in a transaction even with a non-Muslim not to speak of the Muslims.

ISLAMIC

LAWS

OF

CONTRACTS

394

The same rule applies to the books containing the sayings of the infallible personalities (a.s.) both in the case of transaction and making them available to non-Muslims.

CR # (15):- It is not lawful to sell grapes, dates or woods to be brewed into wine or manufactured in the case of wood into idols or instruments of useless amusements etc. It makes no difference whether the understanding and agreement of the parties on the purpose of the transaction is made part of the deal or is a separate one. If something is sold with an unlawful condition the transaction will be considered valid but not the condition. In the same way, it is not lawful to rent premises for selling or storing of wines or manufacturing or doing unlawful acts or products therein and such contracts will not be valid. Renting ships and animals etc., for carrying wine is not lawful and such contract is not valid. However, if ‘the seller or the landlord only knows that the buyer or tenant will brew wine out of the grapes which he has sold or store wine in the premises rented or will manufacture unlawful products therein, and this is without the both parties’ understanding and agreement as part of the deal or before it, it is said that such transaction also is unlawful but this is based on precautionary reason, apparently, it is lawful. CR # (16):- It is unlawful to draw pictures of the living beings like men and animals, regardless, the picture is of two or three dimensions. Also, it is unlawful to receive wages for the job of drawing such picture. Drawing pictures of non-living things and receiving wages for a work is lawful and the same rule applies to photographic pictures. Drawing pictures of certain parts of the living beings, like the head or leg vena not be called an incomplete picture is lawful but if it will be called an ens picture like the picture of a decapitated person, such drawing is not free from objection. If it would be the drawing of a certain pose of a person like one sitting or with the hands behind etc., apparently, such drawing is unlawful as it is also true of the defective drawings if such defect would have no part in one’s life such as the picture of a person without hand or leg. It is lawful, but undesirable to keep such pictures or sell them even though they would be two-dimensional or portraits of living beings. CR # (17):- Singing is unlawful when it is done for falsehood and useless reasons and the quality of the tone would be of the ones performed for useless amusements. The standard for the discernment of such tone is common sense. Listening of such songs is also unlawful, regardless, it takes place in the recitation of the holy Quran, du’as (prayers) or mourning etc. An exception to this rule is the singing of women during a wedding, provided, other unlawful acts are not associated with it, like beating of drums or unlawful songs, or entering of men among women or men’s listening of the

Condition of contract terms

395

women’s voices which would cause lustful excitement, otherwise, it also is unlawful.

CR # (18):- Co-operating with the unjust in their injustice and also in all the unlawful deeds is unlawful. There is no offence in co-operating with the unjust in lawful acts unless one would be called their supporters and associates, in which case such co-operation also becomes unlawful. CR # (19):- Playing the gambling instruments like chess etc., which are made for such purpose with betting is unlawful as well as receiving money for such betting and the winner will not be considered the lawful owner. Playing such instruments without betting is also unlawful. Playing with other instruments only with betting is unlawful, like betting in weight-lifting, running or jumping etc.,and receiving money for such betting also is unlawful, however, without betting, apparently, is lawful. CR # (20):- Performing made is unlawful, as well as teaching, learning it or earning through performing made. Made is the kind of performance which affects one’s imagination by controlling one’s sight or hearing etc., to consider some form of having control over Jinns, Angels or men as magic is not free from objection, however, apparently, a performance which would harm

all that

cannot

be harmed

is unlawful,

not

all kinds

of such

performances. CR # (21):- Linking people to others based on certain physical signs contrary to the Islamic standards of relationship is unlawful.

CR # (22):- A performance called ’shu’badha’, that shows unreal as real by quick and uncommon movements is unlawful, if this would harm someone. CR # (23):- Soothsaying on the basis that some Jinn is providing the soothsayer such information is unlawful, however, if it would be based on some uncommon signs, apparently, there is no offence if one believes or has

confidence in such predictions to be true.

CR # (24):- It is unlawful to offer higher price for a certain commodity without the will to buy it, even just to make some other buyer to hear him and raise the price, regardless, such unreal offer is because of an understanding with the seller or not. CR # (25):- The prophecies of astrology about the changes of the conditions of food products or weather etc., because of the movements of stars and

ISLAMIC

LAWS

OF

CONTRACTS

396

planets and their positions with a belief contrary to Islamic belief in their effectiveness in causing such changes is unlawful. CR # (26):- Cheating is unlawful, the holy Prophet has said,"Allah does not support a cheater and leaves him to his own soul, takes away the blessings from his livelihood and makes life difficult for him". Cheating takes place when a commodity of lower quality is mixed with one of a higher quality, thus, sold for the price of the latter, or the unwanted one with the one needed like mixing water with milk or making it look like a merchandise of good quality like sprinkling water on vegetables or making something look gold or silver while in fact it is not. Sometimes cheating may take place by not telling the buyer about an existing defect in the merchandise because the seller may have made the buyer to trust him. CR # (27):- Cheating although unlawful, does not invalidate a contract, but one is entitled to annul it because of cheating. However,if cheating takes place in a transaction of gilded materials exchanged as gold or silver in this case the transaction is not valid and receiving the price is unlawful and the same is true of likewise materials when cheating amounts to a difference in the very substance of the goods exchanged in the transaction. CR # (28):- It is unlawful to receive wages for performing all the acts of worship which cannot be considered valid unless they are performed without wages, were they a personal duty of the person demanding wages to perform them, regardless of this being obligatory or of the preferable ones, personal or (kifa’i) social ones. Thus, a contract wherein it is agreed that one party, for performing or completing an act of worship such as daily prayers, or the daily optional prayers, or fasting in the month of Ramadan, or preferable acts of worship, receives a certain wages, such contract is not valid if one is supposed to perform them with the intention of considering them his own duty. However, it is lawful if a contract is made to perform some act of worship on behalf of another party, such as prayer etc., for which it is lawful to appoint a proxy, and the same rule applies to a contract in which the act is obligatory but not an act of worship, such as prescribing medicine for a patient or treating him etc., or the act is of the kind of obligation on which a social system depends .like teaching some forms of agricultural know-how or medicine. If one is hired to teach rules of what is lawful and what is unlawful when they are part of day-to-day matters, according to obligatory precaution, in fact, apparently, such wages and contract would be unlawful as well as invalid. But lawfulness and validity of teaching for money the obligations which are not a matter of day-to-day practice is not objectionable.

CR # (29):- It is unlawful to sing mourning songs for falsehood but it is not an offence when it is for truthful purposes.

ISLAMIC

LAWS

OF

CONTRACTS

397

CR # (30):- It is unlawful to defame a believer, but there is no offence in defaming an unbeliever or one who commits sins in public and innovates in religion, to safeguard others from following his footsteps. CR # (31):- Using indecent language is unlawful, and the same is true of being explicit in an expression considered indecent in public to people other than one’s wife or a slave girl, but this does not apply to one’s wife and slave

girl.

CR # (32):- Receiving bribe for issuing a right or false decree is unlawful. However, receiving something to get back a right from an oppressor is lawful although it is unlawful for an oppressor to be. the recipient.

CR # (33):- It is unlawful to keep books, which may mislead one or others, if one is safe from being misled or keeping is a priority, there is no harm to keep them. The same rule applies to selling and publishing such books. CR # (34):- It is unlawful for man to wear gold, even a ring etc., but uses such as capping front teeth with gold, apparently, is permissible.

CR # (35):- To lie is unlawful. Lying means reporting what is not true, regardless, one is serious or joking, however, if one speaks a lie in the form of a report and is joking not intending to narrate or report, there is no harm in it. And the same rule applies to (tawriyah) a statement in which the speaker has intended to mean thereby a true meaning and such true meaning is not understood from the spoken form of the statement. There is no offence to lie to safeguard one’s self or a believer against a serious harm, in fact, in such

case, untrue swearing has also no harm, or if it settles issues among differing believers, but it is a preferable precaution, however, in both cases, it is so only if tawriyah is not possible. Apparently, not keeping one’s promise is lawful but seriously detestable. Apparently, with an intention of not keeping a promise when promising, is unlawful. According to necessary precaution one should avoid promising one’s family with the intention of not keeping such promise. CR # (36):- It is unlawful to receive official authority from an oppressor ruler and serve as his officer unless in doing so one serves the interests of the believers and does not commit anything against sharia (laws). Accepting such authority is also lawful when one is forced and threatened by the oppressor and refusing such offer would result in serious physical harm or loss of property to one’s self or relatives and the harm to the relatives or the loss of their property will according to common sense be considered a harm

ISLAMIC

LAWS

OF

CONTRACTS

398

or loss to ones self such as father, children or others whose welfare would be one’s concern.

CR # (37):- It is lawful to exchange in a transaction or receive gratis the property collected as real estate taxes by a non-Shia who considers himself as the khalifah (caliph) of the Muslims, regardless, it would be in the form of _‘kharaj (tax on cash), (Muqasimah) a certain share or zakat. Apparently, by paying such taxes the tax-payer will be considered free of taxpaying obligation, in fact, it is apparent that even if such government endorses such taxes in favor of a third party who then gets paid, receiving such payment is lawful for him and sets the payer free of tax obligation. It is not free from objection to apply the above rule to the taxes collected by the rulers who do not proclaim themselves as the Caliph of Muslims, regardless, they oppose the Shia school of law or not or are non-Muslims. CR # (38):- If one gives some property to a certain person to spend for the welfare of a certain group of people and the person is one of the group, he can only benefit from such property when it could be understood that the donor considers him as one of the group or allows him to receive more than the share of one of the group, otherwise, that person will not be allowed to benefit from such property at all. If such property would be of a certain category of religious dues which can be spent for prescribed deserving causes, if that person’s welfare comes under the deserving cause ,he can only benefit equal to what he gives to other deserving cause or person and he is not required to obtain the permission of the tax-payer. CR # (39):- Accepting prizes from an oppressive ruler is lawful even if one knows in general that there is unlawfully acquired property in it or receiving other property from him owning or using them with his permission unless it is known that it is usurped, in which case it is necessary for the recipient to give it to the lawful owner if he could personally be known, if he could only be known as one among a limited group, one has to obtain the consent of all of them if possible, if not one finds the owner by casting lot, if it is only known as one in uncontainable group, he gives such property in charity for the owner by permission of a person of high authority in law for precaution, if one loses hope to find him, otherwise, one must find him to give him such property.

CR # (40):- The exchange in a transaction of gold for gold or silver for silver or gold for silver and vice verse in a currency form or without it is detestable and the same rule applies to selling shrouds, foods (grains) and slaves. To be a butcher is also detestable and so is cupping, especially, with the condition of receiving wages for such work, the same rule applies to earning by grooming animals, regardless, such earning is in the form of hiring or other forms of

——

Preferable Matters

399

exchange, however, if it would be free arrangement, receiving something as

gift islawful

CR # (41):- Selling lottery tickets is not lawful if one pays for such tickets considering such payment a payment for the possible winning; the payment will not be valid, however, there is no offense in giving money and considering it a donation to a charitable project. In both case, the prize money will be considered a property of unknown owner, if the prize giving company is a foreign one, the prize winner has to refer to the person with the highest authority in sharia (law) to legalize it. CR # (42):- It is lawful to donate blood to the needy patients as well as receiving money for such donation as mentioned before.

CR # (43):- It is not lawful to shave one’s beard according to precautionary reason and the same rule applies to receiving money for shaving other’s beards, except when not shaving would be a serious insult to one and the people of reason would not bear such insults.

PREFERABLE

MATTERS

IN

BUYING

AND

SELLING

CR # (44):- It is preferable to know the rules of buying and selling to be able to discern valid and invalid transaction and remain safe from unlawful interest. In case of having doubt about the validity and invalidity of a transaction it is not lawful to relate to it the effects of a valid one, in fact, in

such case, one has to observe precaution . It is preferable to maintain equality among buyers, thus, one should not sell for less to a prompt payer and for more to one who is not a prompt payer etc., however, segregating because of religious priorities such as buyer’s knowledge and piety etc., apparently, has no harm. It is preferable to refund the party who is not happy with the deal, say the two phrases of testament of faith and the phrase Allahu Akbar during pronouncing the legal contract terms and receive lesser and give little more. CR # (45):- It is detestable for the seller to praise his merchandise, and for the buyer to downgrade it . It is detestable for the seller to hide the defect of the merchandise that is not to the extent of cheating, otherwise, as mentioned before, it is unlawful, to swear and selling in darkness which may hide the defect of the merchandise or with the presence of any such factors, to charge _a believing person and one whom the seller has promised a favor more than needed profits, to enter the market before every one else, to make deals with

ISLAMIC

LAWS

OF

CONTRACTS

400

_ low and handicapped people, to ask to lower the price after concluding the legal terms of the deal, to delay to increase demand by calling and attracting more buyers. However, there is no offense to increase the price after calling is stopped, interference with counting and measuring, when it does not suit one, in order to be safe from mistakes; to interfere in an ongoing deal with a believer by offering a higher price or a different merchandise if there existed a chance that the first parties may conclude the deal were they been left alone. However, there is no harm if one of the first two parties quite or one knows that their deal cannot go through or their deal would be in the form of auction, to travel up to 16 miles to meet the suppliers before anyone else does. However, there is no harm in travelling distances more than 16 miles or if it takes place accidentally. The latter rule, apparently, applies also to the deals other than selling and buying such as negotiation or renting etc. CR # (46):- Withholding a commodity for higher price is not lawful, when Muslims need it and other suppliers are not available, apparently, this rule applies only to wheat, barley, raisin and oil used for food, not other commodities although according to a preferable precaution it is true of salt also, in fact, all commodities that Muslims need such as clothing and means of transportation etc. The person withholding commodities in an unlawful way must be forced to make it available without fixing a price for it. However, if the price which he may choose is unreasonably high, he must be forced to reduce it.

SECTION Conditions About Conclude a Deal:

ONE the

Legal

Terms

to

be

Used

to

Selling means to transfer same property in exchange for some other property as a property, regardless of its qualities, *Shiri’a, or buying means paying the price in exchange for some property because of a certain quality in its substance, thus, in the sale of some sugar, for instance, the seller preserves

his property in the form of the price of sugar but the buyer obtains sugar only because he needs it. Whenever the purpose of both parties is the same like the exchange of a book, for a book, such transaction will not be called selling

or buying, but it is some other form of transaction. CR # (47):- One condition for validity of a transaction in the form of selling

and buying is offer and acceptance, this can take place by means of any word

Par

Condition of contract terms

401

indicating what is meant even though it may not be a very explicit expression, words such as, "I have sold, I have given you possession or I have exchanged" will be enough for an offer and words such as, "I have accepted, I have agreed, "I have assumed possession, or I have bought" will be enough for acceptance. Such terms can be expressed in any language and mispronunciation of words also is not harmful. CR # (48):- If one says, "Sell to me your horse for a Dinar - a unit of moneyand the person addressed would say," I have sold my horse to you for this Dinar," the validity of the deal and relating its legal effects without any acceptance terms being added to it by the first party is not free from pejection, The same rule applies to the guardians or proxy of the parties, an offer without acceptance is not enough. CR # (49):- Another condition for the validity of a transaction in the form of selling and buying is continuity of the expressions of offer and acceptance, thus, if the seller pronounces the terms of offer and the buyer delays in expressing the terms of acceptance until the seller changes his mind about the deal, the

transaction will not be considered to have come into existence and no legal effect can be related to it, but if the seller has not yet changed his mind and waits for acceptance until it is expressed, the deal will be valid. It also is not necessary for the parties to be at the same place, thus, a deal concluded by phone is also valid. Concluding a deal by letter is not free from objections, apparently, it is valid, if the seller does not change his mind and waits for

acceptance.

CR # (50):- Apparently, one of the conditions for the validity of a transaction in the form of selling and buying is harmony between the offer and acceptance about the commodity and the price, thus, if the seller says, "I have sold to you this horse with the condition ’A’ and the buyer says, "I have bought this donkey with condition ’B’ or without any condition the deal will not be valid.

However, if the seller says," I have sold to you this horse for

one Dinar and the buyer says, I have bought each half of this horse from you for half Dinar, the deal will be valid, and the same rule applies to other such expressions where the difference is only that of summing up the details.

CR # (51):- If pronouncing the terms of the deal would not be possible for some reason it can be replaced by gesture, even if it would be possible to appoint a proxy or proxies, the same rule applies to writing if gesture is not possible, if gesture would also be possible, there are two views about the

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case, apparently, both ways are lawful, in fact, these methods can be adopted even if pronunciation would also be possible. CR # (52):- Apparently, a deal in the form of buying and selling can also take place by give-and-take. The seller forms the offer by giving the commodity to the buyer and the buyer forms his acceptance by giving the price to the seller, regardless of the amount of the merchandise. Some times a deal may take place only by giving of the seller the merchandise to the buyer without the latter giving any thing to the seller such as in the case when the seller owes some property to the buyer or vice verse.

CR # (53):- Apparently, in a transaction of selling and buying in the form of ‘give-and-take’ all the conditions required for the validity of a transaction concluded with the pronouncement of terms, are also required. Such as the condition about the terms of the goods exchanged and the parties. It also is apparent that the right of revoking the deal by any of the parties, which will be discussed later also comes into effect in a deal of ’give- and-take’. CR # (54):- Apparently, a ’give-and-take’ form of transaction can also be considered valid in the sorts of contracts other than selling and buying, even in the unilateral contracts, except certain instances such as marriage, divorce,

granting emancipation, allowing.a slave girl sexual relations with others, vows and oaths. Apparently, a ’give-and-take’ form is effective in mortgage and endowment. CR # (55):- The effectiveness of a condition in a transaction in the form of ‘give-and-take’ is not free from objection, regardless, the condition would be the right of revoking the deal within a certain time or doing something for the other party etc.,although, to consider a condition effective is not groundless. For instance, if during give and take one party says "I will have the right of revoking this deal within a year", and the other party accepts it, such condition will be valid and effective and the deal will be a revokable one.

CR # (56):- It is not lawful to let the effectiveness of a transaction depend on what is not existing during processing a deal, regardless, the parties know that it will come into existence such as saying, "I sell it to you when new moon is seen” or they would not know about its coming into existence, such as, saying, "I sell it to you when I will have a male child, or it is not known to either party during processing the deal such as saying,"I sell it to you if today is Friday

when none of them would know about it, but if he knows that the day is Friday, it will be considered lawful.

CR # (57):- If the buyer assumes possession of a commodity by invalid transaction, if he knows that the seller agrees as regards the use of the

a vaa s

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commodity by the buyer even though the transaction is not valid, it is lawful for the buyer to use it, otherwise, he must return it to the seller, if the

commodity is already used up or destroyed, even not because of carelessness, the buyer has to pay to the seller its value or its kind. The same rule is true of the price in an invalid transaction. In the above case, if the owner is unknown to the other party, the rule about a property of unknown owner will apply to it. In any case, it does not matter whether one knows the rule or is ignorant

about it. If one of the parties would sell what he has got this second transaction will depend for its validity on the consent of the party involved in the first transaction. Details about the second form of transaction will be discussed later.

SECTION Conditions

About

TWO The

Parties

CR # (58):- The following are conditions required of the parties. (a) The parties must be mature as regards age, thus, a transaction concluded by a child is not valid even though the child is able to discern right from wrong, if it is not by the permission of his guardian, in fact, even with his permission if the child is independent in handling the deal. However, if the transaction is by the permission of the guardian and the child is only his proxy ‘to pronounce their terms, the validity will not be considered without a good ground and the same rule applies to the child’s handling other properties, with owner’s permission, even without permission from his guardian. (b) The parties must be of sound reason, thus, a transaction concluded by a mentally ill person is not valid, even though such a person may be intending to bring about a transaction. (c) The parties must have freedom in their concluding the contract, thus, a transaction concluded by a person who is forced to do so is not valid, if it is his choice of the lesser side of two harmful aspects i.e. opposing one who forces to enter the deal and concluding the transaction. However, if one is not forced but an oppressor orders one to sell a certain amount of his property and he does it, the transaction will be valid, or orders one to do something other than selling but it ends up in selling forcibly and he does it, the transaction will be valid, such as when one is ordered to pay some money and he sells his house to pay the money, his deal of selling will

be valid.

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CR # (59):- If an oppressor orders that either one Mr.’A’ or ’B’ must sell his house, and only one of them sells his house, the transaction will not be valid,

less beknows that the other person has already sold his house because of e order.

CR # (60):- In the case of rule 59. if one party sells after the other person has done so, the second person’s deal will be valid, but if both would sell at the same time both will not be valid. CR # (61):- If one would be forced to seli his animal only and he sells his animal with its young, only the deal about the young will be valid but not that about the animal. CR # (62):- In the effectiveness of a forcible case it is necessary that the person forced cannot even avoid the situation by a -tawriyah-, expressing a statement which is not true but he means thereby something else which is true ,thus, if one sells his property when he could have avoided by such statement which he did not make, the deal will not be valid.

CR # (63):- The harm which one may suffer in a forced transaction is the kind in which would one himself, his property, dignity or those of one’s concern be involved, if the case is not so and he sells his property, the deal will be valid. (d) A TENTATIVE (fuduly) CONTRACT One of the conditions required for the validity of a transaction about the parties is that they must be able to use the property involved by being the owner, a proxy of the owner, have his permission or be the guardian of the owner. Thus, if the owner is not able to make use of his property, the deal will not be valid, in fact, its validity depends on the permission of one who is able to use it like, the owner, his proxy, one permitted by the owner, or is the guardian of the owner. If permission is obtained the deal becomes valid and if such a person rejects the deal it is not valid. This is what is meant by tentative transaction. According to the popular view, a permission coming after the dealis rejected, is not effective, but this view is not free from objection, in fact, its effectiveness is not far from reality, however, rejecting the deal after giving permission is not effective without doubt. CR # (64):- If the owner says, "do not sell my property," and a tentative transaction agent sells such property and the. owner then approves it, his previous refusal will have no effect on the validity of the transaction.

CR # (65):- If one knows that the owner will approve the sale of his property and sells it, the deal will not be valid until the owner approves it.

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CR # (66):- If a tentative transacting agent sells other’s property thinking it as his own or considering it as his own as in the case of a usurper and then CS owner approves it, the deal will be valid and the price will belong to the real owner . CR # (67):- For a permission in order to come into effect only unexpressed consent is not enough, it has to be expressed in some way by words or deeds. CR # (68):- Apparently, approval of a deal becomes effective from the time of transaction, thus, the benefits of the price from the time of the deal to the

time of approval belong to the owner of the commodity and the benefit or increase in the commodity from the time of transaction to the time of approval will go to the buyer. CR # (69):- If one sells a property thinking himself as the guardian of the owner of his proxy and later it is discovered that he was none of those people, if the owner approves the deal, it will be valid, if not it will be invalid, if one sells a property thinking himself as a stranger and then finds himself as a proxy or guardian of the owner, the deal will be valid and permission of the owner is not needed, but if he finds himself the owner, the validity of the deal without his own permission is not free from objection, apparently, it is valid without such permission. CR # (70):- If one sells other’s property in a tentative transaction and then becomes the owner before the approval of the deal by the first owner, about the validity of the deal without his own approval or with it or the invalidity of the deal totally there are several views and the strongest of such views is that his own approval of the deal is required.

CR # (71):- If one sells someone property in a tentative transaction and the owner himself sells it to someone else the deal made by the owner will be valid and the deal made by the tentative transactor will also be valid if the person who has bought the property from the owner approves the deal of the tentative transactor. CR # (72):- If a tentative transactor sells some one’s property and the approval of such deal does not come into existence, the owner may demand for his property from the seller if it is still with him or from both the seller and buyer if it is already given to the latter, if it is consumed or destroyed while with the seller the owner may demand from the seller, if it was given to the buyer, the owner may demand its price or kind from any one of the seller or buyer.

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CR # (73):- The benefits of property sold in a tentative deal bring responsibility, thus, the owner demands from the one who has obtained them. The same rule applies to the increases of the property, the owner may demand such increases from the one who has obtained them, but the responsibility of not-obtained benefits or increases is not free from objection; that they bring responsibility is more apparent.

CR # ee The standard for one’s being entitled to receive the price or the kind of property depends on its physical condition. Whatever property is available in the same form in great numbers such as today’s manufactured commodities and the demand by the people also differs because of the difference in the qualities of such commodities. In such case, if certain commodities are consumed or destroyed the owner is entitled to received its kind. If the commodity is found very rarely then in a case like the one mentioned the owner is entitled to receive its price such as the rare precious stones etc.

CR # (75):- Apparently, the price for which one becomes responsible is the price of the time of obtaining the commodity not the price of the time it is consumed or destroyed nor the price of the time of payment. . CR # (76):- In the case of a transaction, herein called a tentative one, if the owner does not approve the deal, the aftermath of such transaction may have several possibilities. (a) The seller must give to buyer the price, he has received. If the owner demands from the buyer something for his property in the form of its price or kind, the buyer is not entitled to demand from the seller anything but for the extra money that he may have paid to the owner, provided, he has suffered losses in the contract. If the owner demands his property from the seller, the seller can demand from the buyer the agreed price if he has not yet received it, and he cannot demand from buyer any extra money that he may have paid to the owner if he the seller was the reason for this. If the owner demands from the buyer for the increases of the property or the equivalent of the benefits that are obtained, if the buyer is deceived in the whole matter by the seller while the seller is aware of the case but the seller tells the buyer that he is the owner or the buyer thinks that the seller is the owner he can demand from the seller all the loss that he has suffered because of the owners demand, but if he was not deceived in the matter by the seller, i.e. the buyer knew about the matter or the seller also did not know about the fact of the matter, the buyer is not entitled to demand from the seller any of the loss he may have suffered because of the owner’s demand. If the owner demands from the seller for the increases of his property, if the buyer is deceived by the seller in the matter, the seller is not entitled to ask the buyer to pay him for any of the loss that he may have suffered by paying to the owner. If the buyer has not suffered any loss the

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seller asks him to compensate the owner, the same rule applies to other people who may get involved in such a matter, those having the property in their hands first can demand their losses from those who obtain such property after them, provided, the first ones have not deceived those after them, otherwise, they are not entitled to demand from those who have the

property in their hands. If the owner demands his property from the ones who have such property in their hands latter on, these people cannot demand their losses from those before them if they were not deceived in the matter. This rule also, applies to the properties that are not private, such as Zakat already kept aside from the rest of one’s other property and properties of endowment, for special use or general use, for the welfare of one or many people, the supervisor demands such losses from the one who has them in his hands, if it is available and follows the above mentioned rules if the property is already consumed or destroyed. CR # (77):- If one sells his property and some property of another person all together in one deal, the transaction will only be valid for his own property and for the rest, validity depends upon the permission of the owner of the rest of the property, thus, the buyer has the right of separating the mixed property, therefore, he may revoke the whole deal. CR # (78):- The following is the way to separate the mixed property mentioned in rule 77: Both properties have to be priced according to their market value. The buyer demands from the seller an amount that has the same ratio to the price in the deal as that of the price of the property that do not in fact belong to the seller to the total market price of both properties combined. Thus, if the value of the seller’s property is 10 units of money and the value of the property not belonging to the seller is 5 units of money and the price paid by the buyer is 3 units the buyer demands only 1 unit of money from the seller. This is acceptable only if combining the properties may not have any effect on the total price, otherwise, each property has to be priced when combined and the proper ratio to both prices has to be found and an amount of the same ratio is deducted from the price. Thus, if the value of property ’A’ and property ’B’ when combined would be 5 units of money and the value of property ’A’ alone would be 6 units but when together 4 units of money and the value of property ’B’ would be quite the opposite of the value of property ’A’ in both conditions. If property ’A’ did not belong to the seller the buyer demands 2/5 which is 2/8 of the price and there remains 3/5 for ~ the seller. If property ’B’ does not belong to the seller, the buyer demands 3/5 of the price he has paid which is 3/5 and 2/5 remains for the seller.

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CR # (79):- If two people equally own one house and one of them sells half of that house, if somehow it would be possible to know the amount of the house sold the deal will be considered effective accordingly but if there would be no sign as such the deal will be considered as having taken place about the half that belongs to the seller. CR # (80):- It is lawful for the father and grand-father from the father’s side regardless, how distant they may be to use and handle the property of their children and grand children in a transaction,both father and grand-fathers are independent as guardians of their children. They (father and grand-father) do not need permission of each other. Their guardianship is effective even though they may not be just in their over all practice, or they may not have any benefits in their dealings with the property . In fact, if their dealing would be free from harm it justifies the deal or use. For instance, if a guardian would be in need of selling his children’s property and the property could be sold for more, their deal is not lawful.

The same rule applies if the difference should be an amount like one Dirham or two the guardian is not allowed to sell for less even though selling for less may have some benefit but at the same time selling for less would be considered carelessness toward the property of a child. The standard of harm and benefit is the decision of the people reason in the matter, not the knowledge of the unseen, thus, if a guardian uses a child’s property in a deal and the deal is not reasonable to the people of reason, such deal will not be valid, but if while people of reason approve, it is discovered that the deal is not reasonable, according to the knowledge of the unseen, the deal will be considered valid.

CR # (81):- The father and grand-father are entitled to handle the affairs of the minor like making him work as an employee or such other ways of working. The same rule applies to their marriage, etc.,however, they can not divorce his wife. Can they annual the contract of his marriage when there is sufficient reason to do so or waive the remaining time of his temporary marriage, there are two views about it. According to the view closer to reality, they can annual such contract. CR # (82):- If the father and grand-father appoint someone as guardian of his minors after his death, his appointment and will is effective and he is entitled to undertake all the tasks about minors which the guardian was entitled to do.

It is necessary for him to be trustworthy and of sound reason,

according to a strong reason having the quality of justice is not necessary. For the effectiveness of such will, it is necessary that it is after the death of both father and grand-father. If one of them is still alive the will is not effective.

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CR # (83):- Besides father and grand-father from the father’s side or their agent others are entitled to make a will about the minors, like uncle, mother,

grand-father from the mother’s side or the elder brother. Any of such people’s handling of the affairs and properties of the minors is not valid and it is dependent upon the permission of guardian. CR # (84):- The high authority in Shari’a is the guardian of the minors when father, grand-father or executor of their will is not alive. When the high authority is not accessible, it becomes the task of the just ones of believers, but according to precautionary rule, they carry the task when only absolutely necessary, like if their property may get destroyed if it is not sold, thus a just man of the believers sells it and it is not necessary for such undertaking to be of some ambitious consequences or benefits, in fact, if just people are not available other believers can also undertake such task. Ifa responsible person needs to enter the house of the minors and sit on their furniture, eat their food and acq permission of their guardian is not possible, it is not far from reality to consider it lawful and permissible,if he provides them with proper compensation and it is not harmful to the minors, although according to precautionary rule it should also be avoided. If the above case is beneficial to the minor than it is permissible without compensation.

SECTION Conditions Transaction.

About

THREE Goods

To

Be _ Exchanged

In

A

It is necessary for a piece of goods sold to be a substance,regardless, it exists or is owed by a person and whether it is owed by the seller or some one else, like when ‘B’ owes to ’A’ some property and ’A’ sells it to ’C’. It is not permissible, according to Ihtiyat, to seli the profits of some property like the profits of a house or selling a certain amount of work like the work of tailoring, but what is paid for a piece of goods can be the substance of a property or the benefits of it or a certain amount of work. CR # (85):- According to the well-known view it is necessary for what is sold and what is paid for it, to be such property that for the acquisition of which people of reason are ready to compete with each other. Things that are not of any value like some of.the insects, cannot lawfully be sold or paid for a piece of goods, but, apparently, such condition is not necessary, although to consider it necessary is a precautionary rule.

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CR # (83):- Besides father and grand-father from the father’s side or their agent others are entitled to make a will about the minors, like uncle, mother, grand-father from the mother’s side or the elder brother. Any of such people’s handling of the affairs and properties of the minors is not valid and it is dependent upon the permission of guardian. CR # (84):- The high authority in Shari’a is the guardian of the minors when father, grand-father or executor of their will is not alive. When the high authority is not accessible, it becomes the task of the just ones of believers, but according to precautionary rule, they carry the task when only absolutely necessary, like if their property may get destroyed if it is not sold, thus a just man of the believers sells it and it is not necessary for such undertaking to be of some ambitious consequences or benefits, in fact, if just people are not available other believers can also undertake such task. If a responsible person needs to enter the house of the minors and sit on their furniture, eat their food and acquiring permission of their guardian is not possible, it is not far from reality to consider it lawful and permissible,if he provides them with proper compensation and it is not harmful to the minors, although according to precautionary rule it should also be avoided. If the above case is beneficial to the minor than it is permissible without compensation.

SECTION COnditions Transaction.

THREE About

Goods

To

Be _ Exchanged

In A

It is necessary for a piece of goods sold to be a substance,regardless, it exists or is owed by a person and whether it is owed by the seller or some one else, like when ‘B’ owes to ’A’ some property and ’A’ sells it to ’C’. It is not permissible, according to Ihtiyat, to sell the profits of some property like the profits of a house or selling a certain amount of work like the work of tailoring, but what is paid for a piece of goods can be the substance of a property or the benefits of it or a certain amount of work.

CR # (85):- According to the well-known view it is necessary for what is sold and what is paid for it, to be such property that for the acquisition of which people of reason are ready to compete with each other. Things that are not of any value like some of the insects, cannot lawfully be sold or paid for a piece of goods, but, apparently, such condition is not necessary, although to consider it necessary is a precautionary rule.

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CR # (86):- The rights in general are like rules as it is not valid to sell them, they cannot be paid for what is purchased also, however, in case they can be transferred it is permissible to assign the object of the right,as a payment and it is permissible to receive something in exchange for waiving one’s rights in

favor of some one even if the right involved is not transferable but could be waived, as it is permissible to assign the waiving as price and payment for some thing like an amount of work which may become the property of the buyer and it becomes necessary for him to waive after selling. CR # (87):- For the validity of a contract it is necessary that the deal is not a loss for a party. Such loss can be avoided by observation when observation is commonly needed and the quantity of the goods to be exchanged must properly be measured or weighed and determined to be equivalent of each other. It is not an offense to use weighing instead of measurement and vice verse as long as no loss is caused to one party. In certain cases observation is the way to avoid losses and in other cases by means of finding out the exact quantity and quality. All depends on common practice and forms of doing business.

CR # (88):- For learning the exact amount and quantity of the merchandise the report of seller is enough as regards its weight, measurement or number,regardless, the seller is a just person or not, according to a precautionary rule the buyer should be satisfied with his report. If a deficiency is discovered that the amount is more than the agreed one, the seller will have the choice to annual or approve the deal for the whole merchandise, it also is said that in the case of deficiency, the buyer asks for compensation and in the case of the extra amount it goes to the seller in the second case, but such view is weak.

CR # (89):- In the case of properties wherein the size of the area has a bearing on the price it is necessary to know such factor as in the case of fabrics and lands, observation is not enough, unless observation removes losses from the deal as in the case of sale of houses etc. CR # (90):- If the practice of localities is different to determine the qualities and quantities of certain merchandise like weighing in one place and measuring or counting in another place, the practice of the location of the deal must be held effective, but dealing according to a different means of determination is also valid if no loss is caused to any one.

CR # (91):- Sometimes a certain weight is a requirement in the merchandise sold by a measurement or vice verse, like the sale of a ton of oil that is required to be a barrel in size and it is later discovered that it is different

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because of the heaviness or lightness of the oil and the same thing can take place in the deals of fabrics, when the presence of another quality represents a higher quality of merchandise not a necessary ingredient of the merchandise. In the case of any inconsistencies the buyer has the right of having the choice to approve the deal in which case he pays in full and extra goes to the buyer anyway. CR # (92):- It also is necessary for the validity of the contract to know the kinds and qualities of goods to be exchanged, the kinds and qualities that make a difference in the prices, like colors, tastes higher and lower qualities, thick and thinness etc. If it does not affect the price, it is not necessary to know them although they are liked by some people and are not liked by the others, one may know such factors either by observation, the description of the seller or previous observation. CR # (93):- It also is necessary for the validity of the contract that the goods to be exchanged are owned (by the parties) as is usual among people or similar to what is owned like a merchandise of general nature for the delivery of payment of which a party is responsible or like a specified property appropriated for a certain cause like the sale of the Zakat property by its custodian or buying food for the animals of Zakat. Thus, it is not permissible to sell anything unlike the above example like selling birds in the sky, fish in the sea or trees of the jungle before securing ownership of such articles. CR # (94):- It is lawful for the mortgagor to sell the mortgaged substance by the permission of the mortgagee, the same rule applies if the mortgagee approves the deal after it takes place, according to a more clear reason, the sale is also valid even if the mortgagee does not approve the sale except that the buyer will have the right to revoke the contract if he does not know the situation at the time of the contract. CR # (95):- Selling endowed property is unlawful except in the following cases:(a) The property is dilapidated as such that it cannot serve its cause in its existing condition like a slaughtered animal or such other substances.

(b) That it is dilapidated so much such that it does not produce any benefits or such benefits-are so little that common sense would consider it of no significance at all. (c) That the donor has set a condition requiring its sale at the taking place of a certain matter, like the diminishing of its benefits or the increase of taxes on it or that the sale is more beneficial or the beneficiaries need some thing else in exchange for it etc.

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413

(d) That a serious dispute arises among the beneficiaries and because of this there is fear about the loss of property or lives.

(e) That the donor’s condition requires the endowed property to remain in a specified form like a garden etc., and such form does no more exist in such case it is lawful to sell it even if the benefits produced are as normal or more. (f) That a situation arises which leads to a deteriorating condition or diminished benefits, the profits acceptable according to common practice. What is necessary in such case is to delay the sale to the latest possible time to benefit from it. CR # (96):- The above cases wherein the sale of the endowed property is lawful, does not apply to the mosque. The sale of mosque is not lawful in all cases. The above rule, however, applies to guest houses, the books for schools and buildings for public welfare. CR # (97):- If the sale of the endowed property for any of the reasons mentioned becomes lawful, if it does not have a supervisor like those endowed in favor of certain individuals besides such beneficiaries other’s permission is not required, otherwise, the permission of the supervisor is required and it is necessary to ask him for all matters about the endowed property and if there is no supervisor the case according to a precautionary rule should be presented to the high authority in sharia to acquire his permission in the matter and also because of a precautionary rule with the money received another property to be endowed for the same cause should be purchased. However if only some parts of the endowed property are dilapidated it is lawful to sell such parts to use the money for the upkeep of the rest or for some other endowed property serving a similar cause. If the endowed property deteriorates and no benefits can be acquired from it, if it is possible to sell some parts of it to repair the rest, according to a precautionary rule the sale should be limited to what is needed for repairs.

CR # (98):- It is not lawful to sell the Kharaji land; such land is the land forcibly conquered and established at the time of conquest. Such lands belong to Muslims: those existing as well as those to come into existence, regardless, there are the marks of the seller’s ownership like buildings or trees etc. In fact, apparently, it is not permissible to use such lands without the permission of the high authority in sharia, except when it is under the control of a ruler who claims to be Khalifa, in which case it is enough to acquire such ruler’s permission in fact, in such a case to consider acquiring the permission of the high authority enough, is objectionable. if the conquered land already established during the conquest is becoming barren, it is not far from reality to own such lands by means of reviving. The land which is dead at the time of conquest is the property of IMAM (AS). If any

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one revives it, it becomes his property because of reviving, regardless, he is a Muslim or a non-Muslim, and he does not have to pay for it anything and if he leaves it until it becomes barren and dead again, it remains his property but if he does not cultivate it and does not benefit from it in any way, it is permissible for others to cultivate it. The second person is the more rightful over it, although according to a preferable precautionary rule it should not be cultivated without his permission if he could be known, unless he has abandoned it. If the ruler who claims to be a Khalifa revives it for the Muslims the rule of the lands of Kharajiyah as explained before applies to it.

CR # (99):- Specifying the Kharajiyah lands is not free from objection, although the scholars and historians, have mentioned numerous pieces of lands as such. If it cannot be found out exactly and one has doubts whether a piece of land was dead at the time of the conquest or established, it will be assumed as dead, thus, it is lawful to revive and own it, as well to sell it etc.,

such other uses that require ownership. CR # (100):- It is necessary for both the merchandise to be exchanged that it could be delivered and possession could be transferred, thus, the sale of a run-away camel or a bird in the air or a fish in the sea is not permissible, regardless, the situation is known or not. If a usurped substance is sold and

the buyer is able to get it back from him and then deliver it to him, it is valid. It also is valid to sell it to the usurper even if the seller is not able to get it back from him and then give possession. The same rule applies if the merchandise is such that the buyer is not entitled to own it like buying of a slave who may become free when purchased by the buyer is not able to take possession. CR # (101):- If one knows that he is able to deliver and sell the property and then the opposite is discovered, the deal is void; if one knows of his inability to deliver but then the opposite is discovered, apparently, the contract is valid. CR # (102):- If one loses control and ability to deliver when delivery is due but knows that he regains such ability later, if the time is just little the deal is valid and if the length of such time is not negligible,if the duration is known like a year or more, apparently, the contract is valid if the buyer knows or even if he does not know but it establishes in favor of the buyer the right of having the choice to annul the contract. If the duration of time is not exactly known, apparently, the deal is void, like selling of an animal which has for the time being disappeared and it is known that the animal will be found but not exactly when.

ISLAMIC

LAWS

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CONTRACTS

415

CR # (103)- If the owner himself finalizes the contract terms and expressions, his own abilityis required, and if one is an agent just to finalize the terminology of the contract, again the ability of the owner is required but if he is an agent for the deal as a whole like the case of Mudarabah, profit sharing business, the ability of the agent is required or that of the owner, only either one’s ability to give possession is enough. For the validity of the deal if both are not able, the contract is void.

CHAPTER

FOUR

On The Right Of Having The Contract.

Choice

To

Revoke

The

CR # (104):- The choice is a right that requires the authority to annul and revoke the contract through eliminating its theme, such choices are of several kinds:

(1) The Right of Having the Choice Due to an Ongoing Contract Session. As long as the session for contract is in progress, any of the parties is entitled to annul the contract when the parties depart each other and common practice also calls it departing the contract becomes binding and the right of this form ceases to be effective. If the agent is the participant in the contract the right to exercise is only for the owner, if he is the agent for all of the matters related to the deal, he can annul the contract also. The session is considered to be on-going as long as the participants have not departed, nor the owners. If the parties leave the session together, the right remains effective as long as they are together. If the offeree and the accepting of the offer is only one person as agent or guardian of the parties, proving the right of having such choice is objectionable, in fact, according to a more strong reason the right does not remain effective. CR # (105):- This kind of right is only effective in the contract of buying and selling but not in the other forms of exchanging goods. CR # (106):- This right can be waived and dropped by means of a condition set in the contract that requires it to be annulled and waived as well as waiving it after the contract.

416

Right because of a condition

(2) The Right of Choice to Annul the Contract in a Deal of the Sale of Animals. Whoever buys an animal his right of choice to annul the contract in his favor is established for three days beginning from the time the contract is formed. If the contract is formed during the day, three days can be completed by adding some parts of the fourth day and the two nights in the middle are part of the three days also the third night if part of a day is added in the case of forming the contract in the middle of a day. If the parties stay together for all the three days this right ceases to remain effective, but the right due to an on-going session remains effective. CR # (107):- This right can be eliminated by setting a condition in the contract requiring it to be of no effect just as it can be eliminated after the contract is formed. Also it is considered of no effect if the animal is used in a way that would indicate one’s intention of approving the contract and choosing not to annul it. CR # (108):- This right is established in favor of the seller also if he has received an animal as payment for the purchase. CR # (109):- This right is only applicable in the contracts of selling and buying it cannot have any effect in other forms of transaction.

CR # (110):- If the animal is lost before the after it and before the three days the loss is on the refund of what is already paid for. CR # (111):- If the animal is damaged but not to care for it, he can still annul the contract and is due to his acts his right does no more remain

buyer’s taking possession or the seller, the buyer asks for

by the buyer’s short-comings return it to the seller but if it

effective.

(3) The Right of Choice to Annul the Contract Because of a Condition.

It is the right because of a condition set in the contract requiring such right to be effective in favor of both or one party or a third party. CR # (112):- There is no time limit for it, it is permissible to agree on a short or long time for it to exist effective, and such time could start as the contract is formed or sometimes later. It however, is necessary to set a specific amount of time for it as regards its beginning and end. It could even be for life, thus, without time or time limit no such right can be established or a

time limit that could be increased or decreased and could cause losses to one party, otherwise, the contract is void.

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CR # (113):- If the time for it is said to be one month according to the face meaning of such indication the beginning of such time would start soon after the contract is formed. The same rule applied to years or weeks etc. If it is said to be an unspecified month out of the twelve months such agreement is Aiea void because of uncertainty in timing, but, apparently, it is valid, use it results in the effectiveness of such right in all of the months. CR # (114):- In unilateral contracts it is not permissible to establish the right of choice to annul the contract by setting a condition in the contract: like divorce etc, or the permissible contracts, as different from binding ones like depositing, or lending. CR # (115):- It is permissible in the binding contracts other than marriage, and the permissibility in the case of charity, and binding gift giving and in the case of guaranteeing is objectionable, apparently, in the last case it is not and in the 2nd case it is permissible. CR # (116):- It is permissible to set up a condition requiring the establishment of the right of having the choice to annul the contract in favor of the seller for a certain time simultaneous with the forming of the contract or at a time later so that he may have such choice in the case of his refunding the payment in substance if still existing or its replacement if it is lost, such eal iscalled a deal with choice. When the time is over, the contract becomes

binding and the choice ceases to have any effect and annulment of the contract becomes forbidden. If he annuls the contract in time without refunding the payment received or its replacement in case of the loss of the substance of what is paid, annulment is not valid. The same rule applies if annulment of the contract takes place before the choice becomes effective, annulment is only valid within the appointed time and in the case of refunding the substance of what is paid or its replacement if the substance is lost. The annulment could be expressed independently at the time of refunding such as "I have annulled the contract", or it may take place with refunding itself in which case it is an annulment by means of deeds, namely refunding as opposed to verbal annulment. CR # (117):- Refund means presenting the items of property paid before the buyer and make it available to him, once this happens it is permissible for the seller to annul the contract even if the buyer may refuse to accept it. CR # Srey iaApparently, it is permissible that a condition would require annulment for the whole of the merchandise purchased when some of what is

paid is refunded or partial annulment for the partial refund.

pee Se

Right because of a condition

418

CR # (119):- If it is not possible to make the refunded items of property available to the buyer due to his absence, or becoming ill mentally etc., some such reasons that are because of some shortcomings on the part of the buyer, apparently, for the validity of annulment. It is sufficient to make the refund available to his guardians even if he is the high authority in sharia or his representative, when it is available to such people he can annul the contract.

CR # (120):- The profits of the merchandise purchased from the time of the eae the seller.

of contract belong to the buyer and the profits of what is paid to

CR # (121):- It is not lawful for the buyer from the time of contract within the effective time of the choice to make such uses of the merchandise which would transfer it to some one else like gifting or selling etc. If the merchandise is lost within such time it is the buyer’s responsibility and it does not affect the seller’s choice, except, if it is linked with the availability of merchandise itself and by means of annulment the very substance of the merchandise would return to the seller, but mostly the first case takes place. CR # (122):- If the payment that is required to be refunded is owed by the seller, like when the seller is a debtor to the buyer and in exchange for such indebtedness the merchandise is sold to the buyer with the condition in favor of the seller to have the choice of annulling the contract upon the refund of what he has received as payment, in such a case, refunding of only one individual of such indebtedness is enough, if the substance of what the seller has received as payment for the merchandise exist with him, apparently, the choice is established when it is given to the buyer. If what is supposed to be payment owed by buyer in the form of merchandise of general nature, and he gives one individual of such merchandise to the seller, apparently, the refund of another individual of such merchandise is enough for the validity of the annulment.

CR # (123):- If a guardian buys some thing for his dependent through a contract with choice, and the dependency before the expiration of the effectiveness of the choice is over, the annulment is valid only with refund to him; refund, in this case, only to the guardian is not effective. If the guardian in such a case is either the father or grandfather it is permissible to refund to either one, unless the condition requires only a specified one, i.e.,the one participating in the contract. CR # (124):- If the seller dies, before exercising "Khayar-Choice", the choice

will transfer to his heirs. It is lawful for them to annul (the contract) by

-

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419

paying back the price to the buyer. They would share what is sold according to their shares. If some of them refuse to abrogate (the contract), it is not correct for the others to abrogate (it), neither in the whole of what is sold nor in part of it. And if the buyer dies, it is permissible for the seller to abrogate (the contract) by paying back the price to the buyer’s heirs. CR # (125):- It is lawful for the buyer to stipulate a choice of annulment by returning what he has bought. Apparently, he must return the very substance of goods bought. It is not sufficient to return the substitute (of goods) even if the goods have perished, except if there are indications that include the destroyed substitute in case of its being perished. Also it is lawful for each party to stipulate the choice upon the transfer of the original goods to him or its substitute, in case, the original is destroyed.

CR # (126):-It is not permissible to stipulate the choice of annulment by paying back the substitute (of goods) while the original (goods) exist. There is no difference between returning the price or the goods. In the permissibility of such stipulation by paying back the price if goods are exchanged in kind or returning the kind if goods are exchanged by the price, if the goods are destroyed, there is objection ,apparently it is not permissible. CR # (127):- The choice expires when its specified period expires, and no payment is made or if it is dropped after contracting.

(4) The

Right

Of Having

The Choice Because

Of Loss.

If one sells an item for less than its usual price, he is entitled to exercise this choice. Likewise, in case, if he buys some goods by paying more than its price. None of the two is entitled to exercising this choice, if he was fully aware of the situation. CR # (128):- A losing (buyer or seller) is entitled to exercise such right only if the price difference according to common practice is a loss, for example a sum which most of the people will not overlook. If the price difference is minimal and nobody pays attention to it for its smallness, this choice is not effective. Some scholars have specified the price difference to be like one-third others have said it to be one-fourth, and according to a third one-fifth. This is because of different economic transactions. In some

Right because of loss

420

commercial transactions a price difference of one-tenth or even one-twentieth is sufficient to establish this choice. Whereas in ordinary transactions this is not sufficient and the criterion is the negligibility according to common practice. CR # (129):- It is apparent that the above mentioned choice is effectively established at the time of the contract, and not when the loss becomes manifest. Annulment is correct if it occurs before the manifestation of loss, with the actual existence of it.

CR # (130):- A losing party is not entitled to ask for the price difference and to ignore the annulment if the other party offers him the price difference, it is not incumbent upon him to accept. Rather he can choose either to abrogate the sale as a whole or to go ahead with it on the basis of the agreed price. However, if the two parties agree to drop this choice in return of some money, this agreement is good and the choice is dropped, and it is incumbent upon the other party to pay back what they agreed upon. The Right Of Having The Choice Can Cases:

Be Dropped

In The Following

(a) Dropping it after the contract and before the loss is discovered. If i t is dropped on the basis that the loss is only ten dollars and it is then discovered to be 100 dollars, if lesser amount is thought of to be a condition for dropping the right, dropping of right is void but if it is simply because minimal difference is only a motive to drop the right,the dropping is effective. The same rule applies to a settlement in exchange for some property. (b) That in the contract it is stipulated to drop the right in which case again if the difference is thought of to be minimal and it is then discovered to be otherwise, it is dealt with like the case in (a). (c) If the losing party (the seller or the buyer) utilized what he received in such a way that it indicates his commitment to the contract and such utilization comes after knowing the loss. It is considered as dropping the right. If it is used before the discovery of the loss, the choice does not become invalid according to well known view by utilization but it requires thinking, but to say that this choice is dropped by utilization which indicated commitment to the contract, is not without reason. If there is no such indication, as it often happens when the loss is not realized, this choice remains valid even if the utilization renders the goods useless, takes it out of a party’s ownership, or makes it difficult to return.

CR # (131):- If the seller’s loss is discovered the contract is revoked if the merchandise is in the possession of the buyer,the seller is entitled to get it back from him. If it is not because of or not because of the buyer use, he

ISLAMIC

LAWS

OF

CONTRACTS

421

must return its substitute, if that is possible or its price otherwise. If it is damaged because of or not because of the buyer’s use, the seller is entitled to have it back with a compensation. If the seller finds it outside the buyer’s possession, for instance if the latter moves it to somebody else by a binding contract as in sale, conditional gift, or giving it to a relative apparently, it must be considered as lost. The buyer gives back the seller the substitute or the price of the goods. The latter is not entitled to make the former to bring

back the (same) merchandise by buying or having it back as a gift. This is also

the case if the seller has transferred the goods to someone on the basis of a permissible contract as in gifting and selling with choice to annul the sale, the annulment of contract and returning the merchandise is not necessary for the buyer. If the original merchandise comes back to the buyer by dismissal of a deal, buying, inheritance, or the like after paying back to the seller the substitute or the price, it is not incumbent upon him to return it to the losing seller. Yes, if the coming back of the original merchandise to him happened before paying the substitute, he must return it to the seller. This remains true (also) if it comes back before the seller’s abrogation of the contract. There is no difference if the coming back of the merchandise is because of the annulment of previous contract or the establishment of a new one the buyer must return the original merchandise to the losing seller who has annulled the contract, and it is not sufficient to pay back the substitute or the price,. if the original is in the possession of the buyer when the losing seller annuls the contract, but the latter has transferred its benefits to someone else through a binding contract as binding rental contract or a non-binding one like renting conditionally to have the choice to revoke it, it is not necessary for him to revoke such contract ask the other party to dismiss it, if possible. He returns the substance itself and compensation for the loss of its being stripped off its

benefits during rent.

CR # (132):- If the losing party annuls the contract when buyer has already changed and used the goods he may have: (a) Reduced, (b) Increased or, (c) Mixed it. In (a) the seller gets the merchandise back with compensation. In (b) the increase is: (1) Only a change of a quality with or with no change in the price like changing the wheat to flour or gold into jewelers or coloring clothes. 2) Or some inseparable increase. 5}Or is separable like fruits, building and plants. In (1) the merchandise goes to seller and there is nothing for the buyer and so is also if the increase has some value but it is not because of buyer’s deeds. In (2) also there is nothing for the buyer. In (3) the increase goes to buyer; if separating does not cause a loss to him, the seller may force him to separate it, in fact, even so separation can be forced, if the buyer wants to separate the seller does not have to stop him, if separating causes damage it is buyer’s responsibility. In (c) if it is mixed with a different kind, it is considered as lost and the buyer is

Right because of loss

422

responsible for its replacement in kind or price, regardless, the merchandise is considered as totally changed or exists as a mixture. CR # (133):- If the buyer due to loss annuls the contract when he has already used the merchandise as such that would not affect his right of having the choice to annul the contract because of his ignorance of the loss; his use would also be either without introducing a change in the merchandise or with a change in the form of reduction, addition or mixing. The situation here would be dealt with just like the cases mentioned in the previous rule. The same rule applies if the buyer who due to his loss annuls the contract, and the seller has used what he has in exchange for the merchandise or the seller who has suffered loss, annuls the contract, and he has used what he had in

exchange for the merchandise, and his use would not affect his right to annul the contract. In any case, the rule about the merchandise being destroyed, transfer of his benefit, reduction addition and being mixed with other substance and the rules of the other cases mentioned in previous rules, would all apply here in the same way. CR # (134):- Apparently, the right to annul the contract because of loss, does not have to be exercised immediately. Thus if one delays declaring the annulment intentionally and knowingly, waiting for the party causing the loss or the presence of consultant to annul the contract or not etc., like other valid purposes, the right of having the choice will not be affected. This right, no doubt, will not be affected if it is not exercised because of the party’s ignorance of the loss or whether or not the party is entitled to such right or is unaware of such right or has forgotten. In all cases it is permissible for him to annul the contract as soon as he comes to know or becomes aware of it.

CR # (135):- Apparently, a party would be entitled to exercise the right of having the choice to annul the contract because of loss in all transactions in which time would be a factor for the loss to become evident, like settlement cases, rents etc.

CR # (136):- If a party buys two pieces of merchandise in a lump sum deal like buying a camel for ten units of money and a horse for another ten, and then the party happens to have suffered loss in the deal of the horse, it is permissible for him to annul the contract, and the seller will have the right of having the choice to sell the camel or not to sell. CR # (137):- If the merchandise gets destroyed in the custody of the party who has caused the loss because of his own action or some heavenly reason and the merchandise would be of the kind exchanged in transaction according to the price (as opposed to its kind) if the person who has suffered

i

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LAWS

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CONTRACTS

423

the loss annuls the contract, he would be entitled to ask the other party for refund of the price of merchandise at the time of destruction or at the time of annulment or at the time of payment, there are several views; the strongest one is the second (at the time of annulment). If the destruction would be because of the action of the party who has suffered loss, he will not be entitled to claim any refund .

If the destruction would be caused by a third party, if the per son who has suffered loss, can claim refund from the party who has caused the loss or the third party or have the choice to claim from either one, there are several views; the strongest is the first one which means claim from the party who has caused the loss. And he in turn would claim refund of compensation from the third party. The same would be the rule if the merchandise in the custody of the party suffering loss gets destroyed. And he annuls the contract after destruction. Then, if the destruction would be because of the action of the

party who had caused the loss, he cannot claim refund from the party who had suffered loss. If the destruction would be caused by some heavenly element, or because of the action of the party suffering loss, or because of the action of the third party, the party who had suffered loss, would have to pay the price of the merchandise destroyed, and the price would be the price at the time of annulment. And the party who had suffered loss, would claim compensation from the third party if he would be the one who caused destruction. The rule of the destruction of the quality of the merchandise which would entitle a party for receiving compensation, would be the same as the destruction of substance of merchandise.

(5) The

Choice

For

Annulment

Because

Of. Delay.

An unrestricted and simple contract requires that both the merchandise and the price must be at hand ready for delivery. If one party may refuse on his part the delivery, he must be made to do so but if he fails the other party can annul the contract and there is good legal ground for him to annul the contract even before forcing him after his refusal to the delivery. The right of annulling is not only good in buying and selling transactions, it is applicable to all transactions involving exchange of goods. In the buying and selling contract there is a certain right of annulling a contract that is applicable and it is called the right of annulling because of delayed delivery this right becomes applicable when a party sells the merchandise and has not yet received the price and himself has not given the merchandise to the buyer. When the buyer comes with the price, in this case the contract stands good and binding for three days, within this time if the buyer comes with the price

Right because of delay

424

he gets the merchandise but if he does not come the seller has the choice to annual the contract. If the merchandise is destroyed it is the responsibility, regardless, it takes place within three days the right was valid or after it becomes invalid. CR # (138):- Apparently, receiving some portion of the price is like receiving nothing and this is true of the merchandise also. CR # (139):- The three days duration are the three successive days with the two nights in the middle only. Half or portion of days could be completed from the fourth day as mentioned in rule 107. CR # (140):- For the effectiveness of this right it is necessary that the parties must not have agreed on delayed delivery as a condition in the transaction, otherwise, this right will not exist.

CR # (141):- There is no doubt that this right becomes effective in the case of a transaction where the merchandise is an identified piece of goods but if the merchandise would be of general nature and one party promises to deliver it at a certain time, in this case it is a necessary precaution not to annul the contract after three days. This could only be done with agreement of both parties. CR # (142):- In the case of perishable goods such as vegetables which could not be kept overnight, one may annul the contract when the night falls and if he did, he can do whatever he likes to the merchandise. This rules applies only to goods of specified nature

CR # (143):- This right itself could be annulled after three days but annulling during the three days or during the contract is open to objection, apparently, such annulment is effective. Apparently, this right cannot be annulled because of buyer’s payment after three days before sellers annulling it or because of sellers demand for payment. This is dropped if the seller accepts the money from the buyer to finalize the transaction not to keep it for the buyer or to keep it for himself, as well as being authorized to use it. The intention of receiving money to finalize the transaction can be manifested by deeds or even by some signs.

CR # (144):- Whether or not the right of executing this right becomes effective immediately or not, there are two views about it a second view Is more strong. (6) The Right of Observation and Choice to annual the contract.

ISLAMIC

LAWS

OF

CONTRACTS

425

If one sees some merchandise and then buys it, but finds it against what he had seen before or finds some merchandise against what it was described, in these cases the buyer has the choice to either approve the contract or annul it. CR # (145):- It does not matter whether the presence or absence of a quality which entities one to exercise this right of annulling the contract is a quality which makes the merchandise of higher or lower quality and attracts more buyers and, thus, is what this buyer desired or it happens to be satisfying to some people only like the illiteracy of a worker, supposing it is not liked by all people, or a certain color of some fabrics that is desirable to some people and undesirable to others. CR # (146):- The party in the above cases has the choice to annul the contract and returning the merchandise or not annul the contract and keeping the merchandise, but the party having such right, does not have the right to demand compensation for the defect if he does not annul the contract. Likewise, the parties’ right to annul stands good even if the seller compensates him for the defect or replaces the merchandise with one not defective. CR # (147):- Just as the buyer becomes entitled to the right to annul the contract when the quality of merchandise happens to be against what it was described. In the same way the seller becomes entitled to have the same right if in case first he observes the merchandise and then sells it thinking of it as having the same qualities but later finds it as a different quality or sells something with the description of a certain quality but later discovers the contrary.

CR # (148):- According to the more popular view this right becomes immediately effective but according to the view more to reality the opposite is true.

CR # (149):- This right is annulled by revoking it after seeing the merchandise or even before seeing as well as by using the merchandise after secing if it indicates one’s accepting the contract, likewise, would be the case if it happens before seeing. About the legality of invalidating the right of annulling the contract during finalizing the contract there are two views, according to the stronger view it is legal and thus it could be annulled during finalizing the contract. If the merchandise is of general nature. For example, if one sells a merchandise of general nature with a certain description and then delivers to the buyer a piece of the merchandise, the buyer will not have the choice of revoking the transaction; all he can do is to demand for a piece

ISLAMIC

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of merchandise that has the described quality. If the merchandise of a general nature is confined to one individual like saying, "I sell you a pound of this good grape", and then he receives a merchandise that does not fit the - description, he in this case, can exercise his right to annul the contract.

CR # (150):- The example in which this right is exercised is the specified goods. Such right is not applicable to the sale of goods of general nature . If one sells such goods and delivers to buyer a piece of goods which does not have the required quality, the buyer will not have the choice to revoke the contract. All he can do is to demand for a piece of merchandise that has the described quality. If the goods are of a general nature but confined to one piece like saying I sell you a pound of this good grape, and then he receives goods that does not fit the description, he can exercise his right to revoke the contract.

SECTION The

Choice

SEVEN: For

Defect.

If one buys something and later finds it defective he has the choice to annul the contract, return the goods or approve the contract. If it is not possible to return the goods he may keep them and demand compensation. In all cases this rule is equally applicable to both the seller and buyer.

CR # (151):- This choice is considered as annulled when a party makes it a binding contract. One indication of such decision is using the goods as such that reveals one’s intention not to dismiss the contract.

Examples Wherein Compensation.

One

Can _ Lawfully

Demand

In the following cases it is not lawful to annul the contract but the only choice is to demand for.compensation for the defective goods. 1. When the goods are destroyed. 2. When the goods are not available like when they are sold or given to some one. 3. When goods are used and changes have been made in them, like cutting the fabric, dyeing or sewing it, etc. 4. Using goods in a formal way like renting or mortgaging. 5. Causing some defect in goods after receiving delivery of the same from the seller. In all of these cases a party is not allowed to annul the contract and

ISLAMIC

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427

return goods. In the case of defective goods, one is entitled only to demand compensation because of defect, if he desires. If a defect takes place in goods during the time when some other form of the right to have the choice to annul a contract is effective like the choice in Section 2, a party is allowed to return goods.

CR # (152):- No compensation is payable with the choice to return goods when the defect does not affect the value and fair market price of a piece of goods. [If a finalized contract falls under the deals involving RIBA like selling wheat for wheat or gold for gold but later some defect is discovered in one side of the deal, it is said that it is not lawful to demand compensation because ’RIBA’ (unlawful interest) but according to the strong view demand for compensation is lawful. The right to demand compensation and returning goods will not exist because of two reasons: . 1. If one has full knowledge of the defect before the contract. 2. Relieving the seller of all responsibilities regarding the appearance of some defect in goods after concluding the contract, namely that the buyer will not demand compensation or return goods if a defect will be discovered in goods.

CR # (153):- According to the strong view this right also does not become effective immediately. CR # (154):- Defect means what is not natural like blindness, deafness dumbness etc, or something extra like extra finger, etc. If defects other than the above ones it is difficult to prove the right to demand compensation although it is more clear that such right can be proved in the latter case too. CR # (155):- If a defect is existing in most pieces of the category of a given goods according to the more clear view, rules of defect will not apply in this case.

CR # (156):- For the existence of defect it is not a condition that its presence should affect the cost or value. For such defect one is not entitled to demand compensation as mentioned before.

CR # (157):- Just as a defect which is present in goods during forming of the contract give a party the choice to annul the contract in the same way a defect which may come into existence after the formation of the contract and before delivery, thus, it is lawful to return the goods because of the defect. However, a demand for the deference between the defective and not defective goods is objectionable.

Choice for defect

428

However, about the lawfulness of demand for compensation there are two views and the more clear one is no compensation if the defect is not due to buyer’s deeds. CR # (158):- The right of having the choice to annul the contract or ask for compensation because of defect can come into effect in case of defects like insanity and leprosy etc., such defect comes into existence within a year after the formation of contract. CR # (159):- The compensation could be adjusted in the following ways: The goods are priced as if they had no defects and then as if they were defective to find out the difference which is the amount to be paid as compensation.If goods are priced for $8.00 as without defect and for $4.00 as defective and if the agreed price is $4.00 the agreed price should be cut in half which in this case is $2.00 and so on. The pricing of goods as defective should be done by an expert who is reliable and trustworthy. CR # (160):- If the experts differ in pricing in some cases there is a solution like the case where there is a common factor among prices such as if one party prices a piece of goods $8.00 and $6.00 respectively in both cases the difference is by half the compensation and half of the agreed price, but if the difference does not have any such common factors like one party prices $8.00 and $4.00 as defective and the other party prices $8.00 and $6.00 as defective about such case, there are several views and situations. According to the rules the expert’s decision must be adopted in a precautionary way until a mutual agreement is reached.

CR # (161):- If one buys two pieces of goods for two different prices in a lump sum deal and then a defect is discovered in one of them, he will have the choice to return the defective one.

If he did, the seller has the choice to

annul the contract of goods without defect, the same rule applies when one buys two different objects for one price, he is not allowed to return only the defective one, he must return both if he chooses to annul the contract.

CR # (162):- If two people buy one piece of goods and find them defective one of them may choose to annul the contract for his share and it gives the seller the choice to annul the contact as a whole. CR # (163):- If a defect is removed before it is discovered by the buyer, according to a clear view, it will not affect the validity of the right to annul the contract, he can return goods if possible, if not, he can demand compensation.

ISLAMIC

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To

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Rules

CONTRACTS

Of

429

Stipulation.

Just as it is necessary to abide by the binding contracts, it is necessary to abide by all the conditions associated with it like if one sells a horse for a certain price with a condition that the buyer does a certain amount of work for him, the seller is entitled because of the condition to make the buyer do the work for him. In the obligation of fulfilling the condition the following matters must be observed. (a) A condition must not be against the Holy Quran and Sunnah, traditions of the Holy Prophet(a.s). This takes place as follows: That fulfilling the condition is unlawful like accepting a condition which requires one to discontinue fasting during the month of Ramadan or such other unlawful matters. (b) That the condition in itself is unlawful like gifting one’s property with the condition that ones heirs or some of them will not inherit it, such condition is void and ineffective. (c) That the condition is not against what its very nature demands such as stipulating with the contract that one must not receive any price or rent for the goods sold or the property rented. (d) That the condition must be mentioned during the formation of contract implicitly or explicitly to indicate that the contract was based on a certain condition and tied to it due to mentioning it before forming the contract or because of common understanding like the condition of having the right of receiving delivery on time. If a condition is mentioned before the contract, but the contract is not based on it, willingly or mistakenly, it is not necessary to go by such condition. (e) That the condition must be within the ability of a party if,in fact, it is discovered that it is not so, it is not even

possible to formalize a binding condition. CR # (164):- It is lawful to stipulate with the buyer to sell back to one what he has already sold even if it may take place after a while; but it is not lawful to stipulate to sell back for a price less than what he has paid or the buyer stipulates that the seller later on buys it back for more than what he has paid. In both cases the contract is invalid. CR # (165):- For the validity of a condition it is not necessary that it inevitably takes place. It is all right for it to be conditional like selling one’s house with a condition to live therein for a month if one did not travel. Apparently, it also is valid to set a condition about something not exactly known unless such condition leads to cause deceit to a party in which case the deal is invalid.

CR # (166):- Apparently,an invalid condition does not affect the validity of the contract in which it is set. The contract stays valid but not such condition.

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CR # (167):- If one who has to meet a condition, does not do so, the other party can force the former to meet the condition. Apparently,the choice of forcing the party is not conditional upon one’s inability to force him, in fact, even if one 1s able to force him he can exercise this right when the other party fails to meet the condition.

CR # (168):- If a set condition is not met ,one in whose favor it is set can only revoke the deal but he can not demand for the cost of the condition, regardless,the party’s failure is due to his inability or the object of the condition is destroyed.

CHAPTER On

Rules

Of

FIVE Choice

The right of having the choice to revoke a deal is just like other rights. If the holder of such right dies, it is transferred to his heirs. Those heirs who cannot receive a share of the legacy because of certain reason will not receive anything of this transferred right. If the contract in which such right is involved is for a property in the form of legacy that goes only to certain heirs like certain personal belongings of deceased which goes to the oldest son like one’s ring etc., in which a wife has no share about such heir’s having share in the transferred right of choice to annul a contract, there are several views;

the one nearest to reality is that such heir is not deprived of having a share in the transferred right now as legacy and it belongs to all heirs, i.e. if one sells lands by a contract in which he has such right or has bought some land and he dies, this right will be transferred to his heirs including his wife. CR # (169):- If the right of annulling a contract becomes legacy and there are many heirs to this legacy, obviously, annulling of the contract by only one of the heirs without the other will be of no effect to the whole contract or even to the ratio of his own share, unless the other party of the contract agrees to annul it proportionate to the share of this heir.

CR # (170):- If the heirs annul the contract formed by the deceased, and the substance of the price is available it is returned to the buyer, if the substance of the price is destroyed or is not available an amount equal to the price is taken from the legacy like other debts.

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CR # (171):- If the right to annul the contract belongs to some one not related to the contract and he dies, the right will not go to his heirs.

CR # (172):- If goods are destroyed when the right, in the deal of animals, is valid, the seller will be responsible for it. The same rule applies if the merchandise is destroyed during the validity of the right of choice in the form of a ’stipulated right’ of having choice in favor of the buyer. If ’stipulated right’ is in favor of the seller or goods are destroyed during the validity of the choice based on the on-going session and after taking charge of goods, apparently,the buyer is responsible for it.

CHAPTER

SIX

Things That Are Part Of The Merchandise To Be Sold: If one sells a substance everything that the parties decide to be part of it is part of it, not other things. The intention of the parties about things to be part of the merchandise can be found out by means of words which stand for goods because such word (s) are the names of the merchandise or other indications in general or particular manner. If one sells a garden, the land, trees, palm-trees, the well, pump and caretaker’s quarters etc., will all be part of the merchandise and related to it. If one buys land only, the trees and palm trees existing therein are not part of it. Also the unborn young and fruits when the mother and trees are sold, are not part of the property sold. In the sale of palm trees, if pollinated, the dates go to seller; if not pollinated, the dates go to the buyer. This rule applies only to the sale of palm trees. In the transfer of palm-trees but not by means of selling or the sale of trees other than palm-trees the fruits always go to the seller even if not pollinated. The above rule applies only when there is no indication about the fruits being part of goods of the contract or trees in the sale of land or unborn young animals in the sale of young bearing animals, but if there exist some indications about trees, fruits, young animals as being part of the deal even though such indications are because of common understanding, then it must be followed and such things all go to the buyer.

CR # (173): If fruit-bearing trees are sold with the condition that fruits go to the seller and that they should remain on the trees and the trees need watering the seller is allowed to water the trees and the buyer cannot deny him and if they do not need water the seller does not have to water them even if the buyer asks the seller to do so. If one party suffers loss because of

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watering and the other because of not watering; about giving preference to any of the parties there are two views; a more preferable view gives preference to seller if he has stipulated that the fruit should remain on trees, otherwise, preference goes to buyer. CR # (174): If one sells a garden except one palm tree he has the right of way or easement to reach it and exit and to extend the branches and roots and the buyer cannot stop him. CR # (175): If one buys a house, the land and building up and down are part of the merchandise unless the upper level is independent in entrance and exits which is a sign of not being part of merchandise. The cellar, wells, doors, woods in the structure of the building, fixed stairs, electrical lines, plumbing etc., which are related to the house even keys all are part of the house unless they are excluded by some stipulation.

CR # (176): The stones and the mineral in a piece of land are part of such parcel of land in a transaction if they are related to the land according to common understanding of people but if they are not related to the land to common understanding of people like the hidden minerals, obviously they do not belong to anyone; those who take them are the owners, likewise, is the rule for the stones deeply buried therein and treasures deposited in it.

CHAPTER The Delivery Delivery.

SEVEN Of

The

Merchandise

And

Accepting

The

It is necessary for both parties to hand over each on his side the merchandise and the agreed price if the contract is concluded and if delaying is not a mutually agreed condition. None of the parties is allowed to delay the delivery if possible unless the other party agrees. They will be forced if they do not deliver. If one of the parties refuses to do his part, when the other party has delivered his side of merchandise, he will be forced to comply with the rule. It is lawful for a party to set a condition to delay the delivery for a certain amount of time and the other party is not allowed to delay his part.

CR # (177):- It is quite lawful for a seller to set a condition which allows him to use his house, or land etc, for a certain period of time to benefit.

Delivery of merchandise

433

CR # (178):- Giving possession of the merchandise which is obligatory for both parties, in the case of moveable properties means letting the other party fo use what he has bought and removing all obstacles for such use. CR # (179):- If the merchandise gets destroyed due to some heavenly reason and before it is delivered to the relevant party, the contract becomes invalid and the buyer is entitled for refund of what he has paid and the loss of merchandise is loss to the seller. The same rule applies to what the buyer has paid if it gets destroyed before reaching the seller.

CR # (180):- In order to relieve one party from the responsibilities of giving possession of the merchandise or the payment in the case of moveable

properties, it is enough to follow whatis mentioned in rule 178, besides, for

movable ones it is necessary to give full control of merchandise or payment to the other party like collecting money or clothes or holding the harness of the animal. CR # (181):- It is the same as if the merchandise is destroyed when it is not possible for one party to use what he has bought like when the property before delivery is stolen, drowned, or a slave runs away or bird flies off, etc.

CR # (182):- If the buyer asks the seller to give what he( buyer ) has bought fo a certain person and this person accepts the delivery it is just like accepting delivery by the buyer himself, likewise, if the buyer asks the seller to send the merchandise to his home town, etc, and the seller does so. It will make no

lifference whether the delivering person is identified or not. CR # (183):- If the merchandise is destroyed by the seller or some one not nvolved in the contract; but could be reached to remedy the loss, in this case, according to the strong view the contract is valid and the buyer demands

‘efund or replacement from the person who has destroyed the merchandise. Whether it is lawful on the part of the buyer to annul the contract because he merchandise can no longer be delivered to this there exists an objection, ulthough it is more clear that he may have the choice to annul the contract. CR # (184):- If the merchandise before getting destroyed and reaching the uyer, produces some gains, the gains will belong to the buyer. SR # (185):- If a defect appears in the merchandise before it is delivered to he buyer he may return it to the seller as mentioned before.

SR # (186):- If one buys some merchandise in wholesale deal and some of hem are destroyed before the delivery of the rest, the contract becomes void

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for the destroyed portion of goods for which the buyer asks refund and about the rest it is up to him to annul the contract or not.

CR # (187):- It is necessary for the seller to make the merchandise available and ready for the use of the buyer like if the land is cultivated and it is not yet the time of harvest, the seller has still to remove the produce, unless the

seller sets a condition to let the produce stay in the field until harvest; but he must pay the rent if it is not stipulated to let them be in the field without an charges. If after harvest the roots harm the land or such other things whic affects the land, all such obstacles must be removed by the seller or if when

ane out some damage is caused to the land it must be repaired by the seller. CR # (188):- If one buys something he can sell it even before receiving delivery, provided, the merchandise is not exchanged by weighing or measurement, even so he can still sell it, provided, the price is not more than what he has paid; but if, in this case, profit is involved, there are two views about it. According to the more clear view such profiting is not permitted.

CHAPTER On Caso &

EIGHT

CREDIT

If one sells some goods and does not set a condition about the payment to be made sometime later the payment becomes due after the contract is concluded, thus, the seller can demand payment and he must accept payment if the buyer pays and the seller cannot deny accepting and receiving payment. CR # (189):- If it is stipulated that the payment will become due later on then the transaction is called ’nisyah’ credit and the buyer does not have to pay anything before payment is due, even if the seller may demand payment, however, if the buyer pays before payment is due the seller must accept it, unless there is some indication about the delayed payment being a right in favor of the seller.

CR # (190):- It is necessary to determine when exactly payment becomes due. There must be no ambiguity about it. If for example, the time for payment becomes due, is said to be when it is harvest time etc. the deal is void and invalid.

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Cash & credit

435

CR # (191):- If a computation of the exact duration needs a lot of calculating work like certain calendars that require such work, apparently, the contract is not valid, if the time for the payment to become due is like the beginning of next lunar month while the current month’s beginning is not certain (as it mostly happens with lunar calendar) or that whether the current month will a - 30 days or 29 days, according to a more clear reason the contract is valid.

CR # (192):- If one says I sell this commodity for ’x’ amount of money if paid in cash and for a higher amount if paid later and the buyer accepts it, according to the well known view such contract is void and this view is more clear. ; CR # (193):- It is not lawful to postpone a due payment, even all forms of loans duly payable, in exchange for a higher amount like postponing a debt of ten dollars already due until one year later to be paid $20. The same rule applies to extension of more years with an increase of the payable amount. The reverse of the above case is lawful,i.e. paying half of the amount, payable after a year, in cash to waive the deducted amount in favor of the other party or in exchange for something, provided, the commodity is not of the kind sold by weight or measurement. CR # (194):- It is lawful to sell a higher amount, payable one year later, for a lesser amount in cash, if the commodity is not of the kind exchanged by weight or measurement in which case it is not lawful because of RIBA (unlawful interest). It is not lawful to pay some of the debt payable after a year, in cash to extend one more year’s time for the payment of the rest.

CR # (195):- If one buys some commodities to be paid for after a certain time, it is lawful to buy such deal before the time of payment or after in exchange for the same kind of goods or other commodities equal to it, more than it or less, regardless, the second transaction is cash transaction or the payment is to be made later. [If in the first transaction either party stipulates that later on the commodity be sold to him or bought from him for a higher amount than what he has paid or received in the first transaction, according to the well known view the contract is void and this view is more clear.

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ADDENDA: Musawama, Murabaha, Muwad’a & Tawliwa. If transaction between two parties is made with no regard to the capital involved in the commodity the dealiis called MUSAWAMA. If it is made with regard to the capital, if payment is more than capital, the transaction is called Murabaha, if payment is less than capital, the transaction is called Muwada’a, and if payment is equal to the capital the transaction is called *Tawliyah’. CR # (196):- In all the last three cases it is necessary to mention the price in full details; i.e. if one says I sell this commodity to you in exchange for the amount of money invested in it plus or minus one dollar or nothing else, the transaction will not be valid until the amount invested is specifically mentioned with addition, deduction or none of the two.

CR # (197):- If the seller says I sell this commodity to you for $100 plus 10% discount the contract will be valid if the buyer can figure out what it means, apparently, even if he cannot figure out then, but would do so later that it means $110 or $90 still the contract will be valid.

CR # (198):- If in case of Murabaha the seller has bought the commodity to be paid for after a certain period of time he must inform the buyer about it, if the buyer is not informed he has the choice to return the commodity or keep it for the same price.

CR # (199):- If one buys a number of things in a wholesale deal for a certain amount of money he is not allowed to sell by pricing each piece in a murabaha transaction unless the buyer is informed about the wholesale transaction. CR # (200):- If it is discovered that the seller has not been true about the capital i.e. 10% profit, in fact, is 20% in this case the buyer has the choice to annul the contract or approve it the way it stands. CR # (201):- If one buys a certain commodity for a certain price: say $100 and does nothing to it the $100 is the capital and he can inform a buyer about it, but if he does something to it like renting it, etc., he can add the rent to the capital and say to a buyer I sell it to you in exchange for the capital plus what it has gained.

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CR # (202):- If one’s own labor is involved in a commodity for which he deserves payment he is not allowed to add his own labor’s money to the capital. He must say the capital is so and so, my labor so and so plus such and such amount of profit.

CR # (203):- if one buys a defective commodity and then demands compensation from the seller the actual price would be what is left after deducting the amount of compensation. If the seller reduces as a favor or gift a certain amount this will not affect the actual price which was set during the formation of contract and that price is the capital.

CHAPTER ON RIBA

NINE

(unlawful interest) Riba is of two kinds: (a) Riba in transaction (b) Riba in loans. Riba in transaction means: selling a certain quantity of commodity in exchange for a quantity of a commodity of the same kind with some extra quantity on one side of the transaction, like selling 100 kilo of wheat for 110 Kilo wheat or 50 kilo wheat for 50 kilo plus $5 or some quantity potentially extra like selling 20 kilos wheat for 20 kilos payable after a certain period of time. Whether Riba in a transaction is associated only in buying and selling or it can take place in other exchanges too, there are two views about it, according to a more clear view, Riba can take place only in exchanges between two substances of a commodity, regardless, such exchange takes place in the form of buying and selling or in a settlement with both parties consent such as when a party says, "I agree to settle this issue on grounds that this $20 be for you in exchange for $5 for me." If the exchange is not between two substances of a certain commodity like the case of a settlement wherein a party is saying, "I agree to your giving me this $10 in exchange for $5 which I give you, or my waiving $5 in your favor in exchange for your relieving me of

owing you $10 etc." In such a case the contract is clearly valid. About the presence of Riba in a transaction there are two conditions: (a) The two

substances of the commodities to be exchanged, must be of the same kind of substance according to the common sense even if some of their qualities be different, thus, it is not lawful to sell 100 kilos wheat of good quality for 150 kilo of lower quality or likewise in the case of rice. In the exchange of certain

Riba

438

quantities of the commodities of different kind of substance Riba does not take place: like selling 100 kilos wheat in exchange for 100 kilos rice. (b) Riba can also take place in a transaction when both commodities to be exchanged are sold by weight or measurement, thus, if the commodities are exchanged by numbers like certain number of eggs, etc., in such a case, one egg can be exchanged for two eggs. CR # (204):- A transaction wherein Riba is involved is absolutely void and invalid, regardless, the parties know it or not or that the ignorance is because of not knowing the rules or inability to distinguish the form of the transaction wherein Riba may take place. Therefore, in a transaction where Riba has taken place the parties must return the commodities to each other as mentioned in Rule 57. CR # (205):- Wheat and barley are considered of the same kind in substance in a transaction, thus, selling 100 kilos of wheat for 200 kilos of barley is not

lawful, even though in the case of zakat (a certain form of income tax) wheat and barley are two different kinds of commodities, therefore, in order to raise a certain quantity of wheat to the standard taxable quantity one can add barley to it. If one has equal to half of the standard taxable quantity of wheat and the same quantity of barley, he does not have to pay zakat. CR # (206):- Obviously salts (a wheat looking grain) is not wheat and a grain that looks like barley, is not barley. CR # (207):- Meat and all dairy products are different because of different animals. Thus, it is lawful to sell 1 kilo of lamb meat for 2 kilos of beef and the same rule applies to their milk; in all these cases the extra quantity on

one side does not affect the transaction. CR # (208):- All kinds of dates are of the same category in regard to the rules of Riba and each kind of grain is of different category in this matter like wheat,rice, peas and beans etc.; each is a different category.

CR # (209):- Sheep and goats are of the same category, so are cows and buffaloes; camels and bukhate (a kind of camel) are of the same category. Of birds each category known by a certain name, is a category as opposed to the - other kind which has a different name, thus, sparrows are different from

pigeon and even different kinds of pigeons are different species and categories. In the matter of fish, according to one view, all are one category and each kind a different species; according to another view which, in fact, is the strong one.

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ISLAMIC

LAWS

OF

CONTRACTS

439

CR # (210):- The wild and the domestic animals are considered different from each other like in the case of the wild cows and the domestic ones. It is lawful to exchange them with extra numbers or quantities on one side of the i and the same rule applies to domestic and wild donkeys and sheep. CR # (211):- Each kind and its derivatives have the same rule like wheat, wheat flour, bread and milk, cheese, butter, buttermilk and ghee and different dates of different qualitylike very fresh and still fresh and dates and very dry dates. CR # (212):- If some commodity is exchanged by weight and measurement and its derivatives are not exchanged by weight and measurement in this case, it is lawful to exchange that commodity with its derivatives with extra amount or quantity on one side like wool that is weighed and woolen fabric that may not be exchanged by weight and the same rule applies to cotton and silk and cotton and silk fabrics. CR # (213):- If a commodity in certain condition is exchanged and sold by weight or measurement and in other conditions not in this way. In the first case it is not lawful to exchange two quantities of it with some extra on one side of the transaction,but in the second case it is lawful.

CR # (214):- It is lawful to exchange the meat of an animal with a live animal of different kind, like sheep and cows. Because of precautionary reason it is not lawful to sell beef in exchange for live cow, although according to a more clear reason it is lawful. CR # (215):- If one commodity is found in two conditions like fresh and dry forms of certain commodities like two states of dates or grapes and raisins, fresh bread and very dry one in such cases it is lawful to exchange dry for dry of the same kind with no extra quantity on one side of the transaction, but an exchange of fresh for dry in equal amounts is open to objection, although because of a more clear reason it is lawful but detestable, however, with some extra quantity on one side of the transaction is not lawful even if when dried they become equal quantities.

CR # (216):- If a certain commodity is exchanged by weight or measurement in one town and by a different manner in another town, in each town it will be dealt with according to the demands it is exchanged. Thus, it is lawful to exchange it with some extra quantity on one side of the transaction in the town where it is exchanged in some way other than weighing and measuring and not lawful with extra quantity on one side where it is exchanged by

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weight and measurement. If in most towns it is exchanged by weight or measurement, because of necessary precaution, it must not be exchanged with some extra quantity on one side of the transaction. CR # (217):- One way to free transaction from Riba is adding a certain quantity of a different kind of commodity to the lesser quantity in the transaction, like selling 100 kilo of wheat and one dollar for 150 kilo of wheat or adding some to both sides in the same way with extra on both sides like selling of 100 kilo of wheat and $200 for 150 kilos of wheat and one dollar.

CR # (218):- Riba, there is no objection, does not take place in transactions between father and son. Thus, they can exchange the commodities of the same kind even with some extra quantity on one side of the transaction. The same rule applies to wife and husband and to the transaction of a Muslim person and non-Muslim who is not a tax payer of the Islamic state when the Muslim receives the side of the transaction with extra. CR # (219):- Because of a more clear reason, it is not lawful to have a deal wherein Riba is involved with a tax paying non-Muslim, but after a transaction is concluded, the Muslim because of the rule of binding contract.

in this case too can receive extra

CR # (220):- The currency notes which are not of the commodities exchanged by weight or measurement, is not in the category of the commodities that may involve Riba. Thus, it is lawful to exchange them with some extra amount on one side of the transaction but if in the transaction the amounts on both sides of the transaction are not individually well identified in this case it is necessary for the validity of the transaction to distinguish the commodity and the price for it, like selling Iraqi dinar for Irani riyal but it is not lawful to sell Iraqi dinar for its kind payable by the other party. CR # (221):- Whatever is given these days as a note with certain value that could be cashed with a third party for a lesser amount than its face value according to the more clear reason, is not lawful. However, it could be cashed through foreign exchange agencies as a property of unknown owner

and then settle the case with higher authorities in sharia.

CHAPTER

TEN

Exchange of Gold and Silver for Gold or Silver with or without currency marking on them.

Sell of Gold & Silver

441

CR # (222):- In this transaction for the validity of contract it is necessary to hand-over the amount of gold or silver involved in contract to the relevant party before the parties depart each other,otherwise, the deal is void. a partial hand-over is good only for that portion but not for the rest. CR # (223):- If one sells non-gold or silver goods parties depart each other, silver and void for the gold

gold or silver currencies in addition with some and nothing would be handed over before the the contract is only valid for the non-gold and and silver portions.

CR # (224):- If the parties leave together the place where the transaction was made before they hand-over anything to eachother but they would hand-over ae to each other before they depart, the contract will still be valid and effective. CR # (225):- Handing over of gold and silver is necessary in buying and selling of these two substances in exchange for the same it is not necessary when a contract involving gold and silver would be in the form of settlement between the parties. CR # (226):- The rule of the above form of transaction does not apply to today’s currency notes like Iraqi dinars or Indian rupees or dollars, etc., which are used these days in place of gold and silver which could be sold in exchange for one another even if no handing over would take place before the parties depart and also there is no zakat payable for these currencies.

CR # (227):- If one has loaned money to another person in the form of gold or silver and he then sells what he has loaned to the borrower in exchange for other currency and the currency available is handed over before the parties depart each other, there is no need for the buyer to formally take possession of what he owes to the other party. CR # (228):- If ’A’ amount of a certain and B authorizes C such contract on objectionable, most what he is supposed of currency.

sells to °C’ what ’B’ owes to ’A’ in exchange for some currency and takes possession of the currency from B to take possession of what he owes to A, the validity of the basis of authorization for taking possession is probably it will not be valid until C takes possession of to receive and identifies it in the form of a certain piece

CR # (229):- If ’A’ buys some specified dollars from ’B’ in exchange for a certain amount of currency then sells it back to B or C before actually taking possession of the money, the second contract will not be valid. If he then

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takes possession after it and before departing, the first contract will be valid and then if he authorizes the second contract and gives possession to C the second also becomes valid and if A does not take possession at the first place before departing the relevant party both the first and second contracts will be void and invalid. CR # (230):- If B owes some dollars to A and A asks B that the dollars that he owes should be payable by B to A in yens and B accepts, the deal will be valid and payable dollars become payable in yens even if there would be no actual handing-over. And the same rule would apply if instead of dollars some other kind of currency would be payable to A at the first place. The same is the rule if the currency would be Dinar and Dirham currencies. CR # (231):- Ina transaction of ’surf (exchange of gold and silver) it is not necessary for the parties to give possession of the currency to other party even if one party may already have taken possession. It is not obligatory for the other party to do the same. If there is some gain in one of the properties before giving or taking possession the gain belongs to the first owner, not the one who will be taking possession.

CR # (232):- The impure coins in the form of Dirhams or Dinars if still in circulation can lawfully be used and exchanged in transactions, regardless, the impurities would be known or unknown or whether the quantity of impurities were known or unknown. _ If such currencies would not be valid for circulation anymore, it will not be lawful to exchange them in transactions without informing the other party about their invalidity.

CR # (233):- It is lawful to change zinc coins and the like into their smaller denominators even with some extra amount on one side of the transaction. This, however, does not apply to gold and silver because it is exchanged by weight, thus, it cannot be exchanged with its smaller denominators with some extra amount on one side without adding some commodity other than gold to one side or to both. CR # (234):- The amount of impurities existing in gold and silver coins is enough as an addition of a different goods that removes Riba from a transaction, provided, such impurities are not totally lost in substance and value in the state of being called impurities, not when separated. If both sides of the deal have impurities it is lawful to exchange them with extra on one side, the same rule applies if one side has impurities and the extra is on the side of the pure goods but not if it is on the side of the impure one.

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CR # (235):- The objects decorated with gold can be sold in exchange for gold, provided, the substance of such objects is more than the quantity of decorative gold, otherwise, such exchange is not lawful, however, if sword is sold in exchange for sword and both have decorative gold and in one sword it would be more than the other sword still the deal is valid. CR # (236):- The silver coated or gold coated threads can lawfully be exchanged for silver or gold respectively, provided, such threads weigh equal or more than silver or gold. CR # (237):- If one buys silver for silver or gold for gold and takes possession before departing the other party and then finds it something other than silver or gold, like lead or copper, etc., the contract becomes void and he is not entitled to demand to change. If he finds only some are other than gold or silver the contract will also be void except for the silver or gold portion, in which case he can return all the commodity because of split in the deal.

If he finds it to be defective silver he will have the choice to return or demand compensation if returning is not possible, regardless, the commodities on both sides are of the same kind or different or getting compensation is before departing the other party or after. CR # (238):- If one buys silver in exchange for silver or gold which he would pay after a certain period of time and after taking possession finds it to be something other than silver or gold, if it happens before departing the other party, the seller is allowed to change it, and if he takes possession before departing the contract will be valid, but if he finds it out something other than silver or gold after departing the other party, the contract will be void and changing the wrong material will not validate the deal. If he finds it out to be defective silver, according to a strong view the buyer has the choice to change, return or accept the wrong merchandise without asking for compensation, but he cannot annul the contract, regardless, the commodities

are of the same kind or not that the defect is discovered after or before departing the other party. CR # (239):- It is not lawful to buy gold or silver jewelry in exchange for gold or silver respectively with some extra quantity because of jewelry work; jewelry should be bought in exchange for something other than gold or silver or for less on one side with an addition of some other goods on other side to avoid Riba. CR # (240):- If for example five dinars of gold would be payable by A to B and B gets from A some silver tumans or rupees as payment of debt in

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several installments and the rate of exchange would also be different each time, the changing rates should be taken in consideration, and equal to the value of amount of silver recovered an amount of gold should be deducted from what A owes to B each time separately. If one receives ten rupees each month for three months and the rate of exchange in the first month would be one dinar for 15 rupees, in the second month 1 dinar for 21 rupees and in the third month 1 dinar for 10 rupees, if in the first month he deducts two thirds of dinar in the second month 5/6 of dinar and one whole dinar in the third month. If B receives those rupees as independent loans, then it will be a loan and what A owed to B remains payable, now if each of A and B considers what he has received from the other as payment for what he demands from rin,:will be open to objection although because of a more clear view it is awful. On the other hand there would be no offense in settling the deal independently by relieving each other of debt obligation on the basis of what each one has received. CR # (241):- If A borrows a certain amount of gold or silver or the dowry ‘Mahr’ of one’s wife would be a certain amount of gold or silver payable in cash or to be paid after a certain period of time and then the rate of exchange changes, in such a case one would owe that amount of gold or silver and the change in the rate of exchange would have no effect.

CR # (242):- It is not lawful to sell a silver dollar for a silver dollar with the condition of getting one ring also made out of it, however, it is lawful to say, "make for me this ring and I will sell you one dollar for one dollar, this makes the sale a prize and gift for the making of the ring and it also is lawful to buy an ounce of silver in the form of jewelry for one ounce of silver not in jewelry form. CR # (243):- If one sells ten Rupees for a gold dollar less 20 pennies the deal is valid, provided, the parties know the value of pennies in relation to a dollar.

CR # (244):- It is not lawful to sell jewelries made of gold and silver in equal amount in exchange for gold or silver. It would be sold either with some extra amount exchanged for either gold or silver or in exchange for a certain amount of both gold and silver or in exchange for some other commodity.

CR # (245):- Because of a more clear reason the small particles of gold or silver left with the jeweler during working on a piece of jewelry, and the owner of the jewelry does not usually ask for it,it becomes the property of the

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jeweler. Although it is a preferable precautionary idea to give as charity on behalf of the owner if he does not know the owner; if possible he should ask for permission from the owner if he may know and this rule applies to other such professionals also, even though such pieces may have a certain value, the professionals will not be held responsible for the same if according to common sense in their profession it would commonly be separated.

CHAPTER ELEVEN (Prepaid transaction) ’Salaf’ If a commodity by a general definition to be delivered after a certain time is purchased to be paid for soon after the formation of the contract, contrary to paying for an already delivered merchandise after a certain time, such transaction is called ’Salaf. For each of the four elements involved there is a certain Arabic word: Buyer called Muslim.

Seller called Muslam Elayh, Commodity called Muslam-fih and Price called Muslam.

CR # (246):- In a prepaid deal it is lawful for the goods and the money to be other than gold and silver, regardless, they are of the same kind or different or that one side is exchanged by weight or measurement. It also is lawful for the one side to be gold or silver and the other side not gold and silver, irrespective of the side of deal and it is not lawful for both sides of the deal to be gold or silver whether both sides are of the same kind or different. In prepaid transaction the following conditions must exist:

(a) The goods to be delivered after the agreed time must be such that its qualities could be thoroughly described: the qualities that because of their absence or presence its (goods) prices change, qualities like good, bad, smell, taste and color, etc., like vegetables,

grains, foods, clothing, medicines,

professional tools, arms, works, animals, etc. The prepaid contract of commodity which cannot be fully described and without close observation the possibility of loss and lack of knowledge cannot be removed, the deal is not valid.

‘b) Description of kind and qualities that fully identify the goods.

i

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transaction

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446

(c) Taking possession of the price before departing the buyer. Taking possession of some of the price only validates the deal for that portion for which payment is received, and the rest of the deal is void, however, the seller

has the right to revoke the contract for that portion. Also if the seller owes an amount of money to buyer such loan can also be turned into the payment for a prepaid form of deal. (d) The quantity of the commodity should exactly be determined either by weight, measurement or number. (e) The exact time of the delivery must be determined either by days, months or years, and it must not be such a time when the goods are scarce and it would not be possible to deliver etc., (f) It must be possible for the seller to deliver what he has promised on time and at place of delivery, if place also is a condition, regardless, the commodity is rare or in abundance. If for some reason even for his inability like being in prison, etc., he cannot deliver, the deal is void. CR # (247):- Unrestricted nature of contract requires the delivery for a prepaid deal to be made at the place where the contract is formed, unless there are some indications otherwise, either making any place good for delivery or a particular one. According to a strong reason it is not necessary to determine the place of delivery in the contract unless delivery to a certain

place is more difficult and more expensive which in turn amounts to loss and deceit to one party in which case it is necessary to determine the place also. CR # (248):- When the time is said to be one lunar month or two if the deal is formed at the beginning of the month it means the whole month, if the deal is made in the middle it means the rest of the month in addition to some days of the next month equal to the amount of time of the last month past before the deal. CR # (249):- If in a contract of prepaid deal the time of delivery is agreed to be either one or two months like A or B it will be interpreted to have started at the beginning of the month which comes first in the order of the months in a year, and if it is agreed about the delivery time to be Thursday or Friday it will be the first month and day of the year and the first part of such day will mark the due time for delivery.

CR # (250):- It is not permissible to sell it to other than seller before the time set for delivery, but it is lawful after the time set for delivery, regardless, it is in exchange for the same kind of goods originally paid as price or

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different with some extra amount or less or none. This is about the case where the commodity is not of the kind exchanged by weight or measurement, otherwise, it is not lawful to sell before taking possession in a ‘Murabaha’ deal (see rule 195), however, in the case of grains selling or buying before delivery is Makruh, undesirable. CR # (251):- If the seller delivers the commodity according to a prepaid deal and it does not fit the description which it was supposed to have it is not necessary for the buyer to accept it, but if he accepts it, the deal will be valid, also if what is delivered is less than the agreed quantity of the commodity bought through prepaid deal the seller may be freed of his obligation by the buyer if he may do so. If goods of prepaid deal are delivered with all the described qualities and quantities the buyer must accept it. The same rule applies if the commodity has the required qualities and more and it would still be considered the same goods and it would not oblige the buyer for any thing. If the condition for the commodity in the contract would indicate that there must not be anything less than the required qualities, it is necessary for the buyer to accept the goods but if the condition in the contract says that there must be nothing less or more than the required qualities, it is not necessary for the buyer to accept the delivery.

If the commodity is delivered with more than the required qualities, it is not necessary for the buyer to accept the delivery. If the commodity is delivered in more than the agreed quantity still it is not necessary for the buyer to accept it.

CR # (252):- When the delivery time of a prepaid deal is due and the seller is not able to deliver, the buyer has the right ,either to annul the contract and demand for refund of what he has paid without anything less or more or wait until the seller is able to deliver. If the seller can only deliver some of the commodity, the buyer has the choice to annul the contract for the remaining or wait to secure them later, but annulling of the contract for the whole at this point is not free of objection, although because of a more clear reason annulling, is lawful. If, the contract is annulled for some part, the seller has the right to annul the whole contract.

CR # (253):- If the commodity would be available in some place other than where it was to be delivered according to the contract, if the parties agree to have the delivery where the commodity exists, it would be lawful to do so,

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otherwise, if delivery where the contract says it must be delivered, and such

delivery is a common practice it is necessary for the seller to do so if not then the buyer has the choice to annul the contract or wait.

CHAPTER

TWELVE

Selling fruits, vegetables and crops. It is not lawful to sell fruits of palm trees and trees before the fruits appear for one year and without including anything else in the deal. It is lawful to sell them for two years or more or for one year with adding some other commodity in the transaction because of a strong reason. After the fruits appear, if they are ripe or if the sale is for two years or some other commodity is included in the deal, in all these cases, the transaction is lawful without any objection, otherwise, according to a strong reason the contract is lawful although based on precaution it is not.

CR # (254):- For the fruits to be ripe means when people commonly begin to use them, even though it would be the very beginning of such use. CR # (255):- About the adding commodity in the sale of fruits that makes selling of fruits lawful before they are consumable, it is necessary that such added factors could independently be sold, is the property of some one and that the price to be paid for the deal must commonly be for the fruits and for the added commodity to be a principal factor in the deal is not a requirement for the added property, it could be of a secondary value, according to a strong reason.

CR # (256):- About the nature and kind of the commodity added to legalize the sale of fruits, such commodity could even be fire wood and such branches of trees in the garden.

CR # (257):- If the fruits are sold before they are ripe, but with their roots it will be lawful without any objection. CR # (258):- When some fruits have appeared in the garden it is lawful to sell the would-be appearing fruits in that year even if they would not appear, regardless, they all are of the same kind or different, there would be all one garden or many, because of a strong reason.

Selling fruits

449

CR # (259):- If a tree gives fruit twice a year, in this case to consider it two years is open to objection, although there is strong reason to do so. CR # (260):- If the fruits are sold for one, two, three or more years, and the roots are sold to some one else it will have no effect on the contract of fruit,

the roots belong to this buyer without producing any profits for him as long as the fruit deal has not ended and this buyer has the right to have the choice to annul the contract if he did not know about the other deal. CR # (261):- The contract of fruits sale does not become invalid because of the death of the seller. The roots are transferred to the heirs without producing any profits, the same rule applies to the side of the buyer. CR # (262):- If one buys fruits which are destroyed before taking possession, the contract becomes void and the seller is responsible as mentioned in the rules of taking possession; it was also mentioned that stolen property and other such cases are considered as destroyed or that the loss is an act of seller or buyer or third party.

CR # (263):- It is lawful for the seller of the fruits to exclude the fruits of a certain tree or trees in particular or exclude from the deal a ratio of the produce like one fourth or fifth, etc., or a certain amount of fruits like 100 kilos. In the two last cases if the produce gained is below normal the shortage is compensated from both the excluded amount and the rest of the produce in equal proportions. If the estimated shortage is 255 the other remaining 75% must be divided in four or five parts of which one goes to the seller. If the excluded amount is a known quantity one has to find out an estimated ratio of the shortage, if the shortage is 255 the same is deducted from the known quantity excluded. CR # (264):- It is lawful to sell fruits of palm-trees or trees while on the trees in exchange for cash or other property, like animals, foods and works etc, like

other buying and selling deals. CR # (265):- In Muzabanah it is not lawful to sell fruits of palm-trees, fresh or dry in exchange for the dates of the same trees but selling in exchange for fruits of other palm-trees, whether the other party has only promised to deliver the fruits sometime later or they are existing at a certain location, according to a more clear reason such deal is lawful although it is a precautionary measure not to do such deals. CR # (266):- According to a more clear view rule 265 is not only applicable to the fruits of palm trees it can also apply to the fruits of other trees.

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However, selling them in exchange for fruits of other trees is free from all objections. CR # (267):- It is lawful to sell what one has, of the fruits on their trees, bought in exchange for money equal, more or less than what he has paid, regardless, such deal takes place before taking possession of the fruits or afterwards. CR # (268):- It is not lawful to sell planted crops before they appear, but it is lawful to sell them as subordinate to the land if it is just sold but after they appear it is lawful to sell them along with their roots in the ground and it would be to the buyer to leave or cut them if a condition to leave them with their roots is set in the contract or the land owner permits to leave them with their roots. If the buyer leaves them with their roots until their ears appear the buyer gets the ears and pays the rent of the land if letting them grow in the field for no charges is not a condition in the contract. If after the crops are cut before their ears appear and they grow again until their ears appear they too belong to the buyer and he does not have to pay any rent for the land although it is obligatory to pay because of precaution. CR # (269):- It is lawful to sell crops without their roots or even when they are already mowed at the time of harvest. It is also lawful to sell crops without their roots with the understanding that they remain with their roots until they are mowed. If the buyer mows them and they grow until they have ears, the ears belong to the seller. If the buyer does not mow them the landlord can force him to mow or let them stay with their roots until their ears appear, the ears belong to the buyer, the seller can only demand rent for the land. The same rule applies if the commodity is palm-trees. CR # (270):- If one buys branches of trees with the condition that they are cut but they are not cut and they grow, the growth belongs to the buyer.

CR # (271):- It is lawful to sell harvested crops and it is not necessary to know the quantity by weight or measurement; only observation is enough.

CR # (272):- ’Muhaqalah’ to sell the ears of wheat or barley in exchange for the ears of wheat or barley respectively is unlawful and the same rule applies to the ears of the other crops. CR # (273):- To sell vegetables appear from their stumps is not after they appear when the buyer and the units of pick-ups are fixed

like cucumber, eggplants, etc, before they lawful because of precaution. It is lawful has seen them for one or several pick-ups according to the farmers.

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451

CR # (274):- If the vegetable is covered in the ground like carrot or radish, etc, apparently, it is lawful to sell them. CR # (275):- If the vegetables are like mint, etc, that are cut several times in

a season it is lawful to sell them, but not before they appear from the ground, because of precaution, and the farmers determine when it is the time to cut for consumption certain vegetables like mint. The same rule applies to fruits like berries after they appear. CR # (276):- When garden or trees or palm-trees are owned by two people it is lawful for either one to buy the other’s share on the basis of estimated quantity; if the share is estimated like a ton etc, the buyer can accept it whether, in fact, it is a ton, less or more.

CR # (277):- Apparently, in a case like the above, it does not matter whether the partners are two or more and the estimated quantity is of the existing produce, or it is the responsibility of the other party to provide and deliver to the other party from some other source. If the estimated quantity of existing produce is destroyed the accepting party is not responsible, contrarily he is responsible when he is committed to provide such quantity from some unspecified source. Apparently,this is a settlement to determine the quantity and the person who agrees to accept such quantity has the choice to do so.

Such settlement can be expressed by any word that expresses such decision. It can be done by common give and take of the people in every day practice. CR # (278):- When a person passes by some palm-trees or a garden it is lawful for him to eat on common necessity grounds the fruits without destroying other fruits and branches or tree, etc.

CR # (279):- Apparently, it is lawful for a passer-by to eat fruits from a garden even if he may have such intention before passing but it is not lawful to carry anything of the fruits with him. If he does it is unlawful, but eating is lawful. If the garden has walls, or fence around or one knows that the owner does not like one eating fruits, the lawfulness of eating is not free from objection and because of a clear reason, it is not lawful.

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CR # (280):- If one has a single palm-tree in someone else’s property, it is lawful for him to sell its fruits, before they become fresh dates, considering them fresh dates.

CHAPTER The

THIRTEEN

selling of Animals

CR # (297):- It is lawful to own animals with one or many people in common like half or one fourth etc., and it is not lawful to buy some specific part of the animal like the head or skin, etc, if the purchase is not for meat, but is for some other objective like riding or other services. CR # (298):- If the animal is bought for meat it is lawful to buy certain parts of that animal. If it is not slaughtered due to obstacles like if some loss is involved in slaughtering, the buyer has a share proportionate to that part. The same rule applies if one buys an animal with the exception of its head and skin. If two or a group of people buy an animal and if one of them sets a condition to have the head and skin he has a share in it proportionately to what he has paid not proportionate to head and skin. CR # (299):- If one says to another," buy an animal for both of us", a valid deal is formed and there will be equal portions for both of them, if no limitation is set against the contract and each one pays half of the price, unless there are indications against equal sharing which is dealt with accordingly.

CR # (300):- If one who is told by the other person to buy something on partnership basis pays for him his share of the cost, if asking him to buy as such is enough indication to pay his share, this party can ask him for what he has paid on his behalf, otherwise, he is a volunteer and can demand for what he has paid.

Conclusion About Eqalah: Eqalah means annulling of a contract on the basis of demand by the other party to do so, apparently, this rule is applicable to all binding contracts even to gift giving, except marriage and guarantees. Its applicability to charity is not free from objection. This annulment can take place by means of expressing it through any words which express adequately such intentions, even if it is not in Arabic. It can also take place by expressing it through deeds. If one asks for annulment and the other party gives him

Selling

animals

4S:

back the commodity it is annulment and it is must for the demanding party tc return what is in his possession. CR # (307):- It is not lawful to annul a contract by means of EQALAH witt certain addition or deduction in the goods or the price because suck annulment is not valid and goods and price remain the property of partie: respectively. CR # (308):- If one asks the other for annulling the contract in consideratior for ‘ju’alah’ a certain amount of money in cash or payable later on apparently, it is valid

CR # (309):- If the contract is-annulled on the basis of EQALAH ir consideration for ’Ju’alah’ for some property or work and the party accepts it the deal is valid. CR # (310):- In annulling the contract by means of EQALAH no annulling can be carried on by Eqalah or revocation. CR # (311):- In matters of Eqalah, considering the heirs of the parties like the parties themselves is not free from objection, because of a more clea

reason, the heirs are not considered like the parties themselves, however asking for Eqalah by the heirs of one party and request by the other party himself is acceptable and lawful.

CR # (312):- Eqalah is effective for everything that is involved in the contract as well as for parts of it, in which case the price is settled in relevant ratios. I! the seller or buyer is more than two people Eqalah would be valid only for the seller and buyer who are for Eqalah about their shares and there is nc need to ask the other parties.

CR # (313):- If on one or both sides of the contract the commodities are destroyed it does not affect the validity of Eqalah if the parties do so the commodities will go to the original owners if the commodities exist, if not,

one asks for its kind or the price of the time of Eqalah if the commodity does not have any of its kind. CR # (314):- For a commodity being out of one’s possession because ot selling or giving as gift is like getting destroyed, a partially destroyed commodity is considered like the whole being destroyed which gives reason to ask refund for the parts destroyed.

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CR # (315):- If the commodity becomes defective when in the possession of the buyer it makes him responsible for compensation.

THE

BOOK

OF AL-SHUFA

If one partner sells his share to a third party the other partner has the right to buy for the fixed price and this right is called Al-Shufa.

CHAPTER

ONE

The commodity About Which The Right of Al-shuf'a Could be Established. CR # (316):- The right of Al-Shufa can doubtless be established about the sale of immovable properties, divisible properties like real property, land, houses and gardens. Can it be established in movable properties, like tools, clothes, animals and also indivisible immovable properties? There are two views: According to the stronger view it can be established in this case with the exception of ships, canals, roads and flour-mills in which case this cannot be established. CR # (317):- The right of Al-Shuf'a cannot be established on the basis of being the neighbor, thus, if one sells his house the neighbor does not have the right of Al-Shufa in this case. CR # (318):- If two neighboring houses each belonging to a person would have a common walkway or driveway and the house is sold with its share of the common driveway, the owner of the other house has the right of Al-Shufa, regardless, the houses were commonly owned by the two people and is recently divided or they were not commonly owned at all. CR # (319):- Even if many houses would have a common driveway, still the right of Al-Shufa can be established for the owners of all such houses sharing a common driveway. CR # (320):- If a house which has a common way with another house is sold without the way, the owner of the other house would have no right of Al-Shufa.

The

Book

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45:

CR # (321):- If only the share of one of the two neighboring houses of th common way is sold still the neighbor would have the right of Al-Shufa

CR # (322):- Is the right of Al-Shufa associated only with houses or it exist with other properties sharing drive-ways also? There are two views about it according to the stronger view, this right does take place with othe properties also. CR # (323):- A group of scholars have applied the rule of commonly owne: way to commonly owned canals, brooks and wells. Thus, houses sharing the other, a canal, or a brook or a well is share of canal, etc., the owner of the other house will Al-Shufa in the house also. This view is objectionable,

if one of the tw sold along with it have the right o in fact, it is no

correct.

CR # (324):- If a property once commonly owned is now divided and is sol together with one’s share of unspecified area or quantity, the other partne: has the right of Al-Shufa in the common share, not the one divided and it price after it is divided.

CR # (325):- In the properties other than houses and land, the right o Al-Shufa can only be established when a property is sold, thus, in gift fo which one receives something in exchange, financial settlement, etc., ther will be no right of Al-Shufa, for the concerned party, but in the case o houses and for the land limiting this right with the sale of such properties i not free from objection. CR # (326):- If some part of a property is privately owned and some part o it is endowed and is charitable, and when the privately owned part is sold the beneficiaries of charitable property do not have the right of al-shuPa becaus of a strong reason even if there is one person only.

CR # (327):- If in the case of rule 303 the charitable part of the property i: sold (provided such sale is lawful) in this case, would the other partner have the right of Al-Shuf'a? There are two views about it, according to the on closer to reality the other partner does have the right of Al-Shufa. CR # (328):- To establish the right of Al-Shufa it is necessary that the property sold be owned commonly by two parties not more. In case of more than two partners if everyone sells his share except one, his having the righi of Al-shuf’a is subject to objection, in fact,he does have such right.

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CR # (329):- If two people have shares in one substance and one sells some parts of his share the other party will have the right of Al-Shufa.

CHAPTER

TWO

About the Party Having The Right of Al-Shuf’a. CR # (330):- The party who can have the right of Al-Shufa must be a Muslim, if buyer is a Muslim. There is no Al-Shufa in favor of a non-Muslim, even if the seller is non-Muslim and a non-Muslim can have this right if the buyer is non-Muslim. CR # (331):- The claimant of this right must be able to pay. Whoever is not able to pay is not entitled to it even if he may arrange for guarantee or bond, unless the buyer agrees to such arrangements. If the claimant of such right says that the price only is not present, he must be given three days after which this right is not valid. The number of three days can be completed by adding up the fraction of days. If he claims that he has money at some other place he is given enough time to get his money plus three days and if such time expires there is no Al-shufa for him. The beginning of such time is the time Al-shuf'a is demanded not the time the sale contract is made. CR # (332):- If it takes one more time than what according to common sense is needed to transfer the money from another town, apparently, his Al-Shuf‘a becomes invalid.

CR # (333):- If the claimant of this right is out of town when the property is sold he can claim it when he comes back and learns about the sale, even if he

comes back after a long time. CR # (334):- If one has an attorney for one’s all matters or just for Al-Shufa, it is lawful for the attorney to acquire one’s Al-Shufa. CR # (335):- People who suffer from mental-illness, children and insane people also are entitled to this right. The guardians of such people can demand for their Al-Shufa. A mentally ill person can with the permission of his guardian, acquire this right as well as children on the basis of strong probability.

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CR # (336):- A bankrupt can also be entitled to this right, provided, the buyer agrees to give him time for payment or borrows money from someone or pays from his property with the permission of other debtors.

CR # (337):- If the guardians of children, mentally ill or insane people waive, their Al-Shufa, afterwards when a child grows or mental-illness or insanity is cured they cannot claim this right. The same rule applies if claiming this right would not be for the benefit of these people but if the guardian neglects it, apparently, these people themselves can claim it afterwards when they grow up or their illness is cured.

CR # (338):- If one and his guardian share some property and the guardian sells it on his behalf it is lawful for him to demand Al-Shufa because of what his guardian has sold, because of a strong reason. CR # (339):- If the guardian sells his own share, he can demand Al-Shufa for his dependent, the same rule applies to an attorney if he is a partner of whom he represents.

CHAPTER

THREE

Claiming the Al-Shufa CR # (340):- Claiming this right requires the formal legal expression, like the rest of contracts, such expression is made in words or deeds, like giving the price and accepting goods. CR # (341):- It is not lawful for the claimant of this right to buy partially. He must take or leave the whole commodity.

CR # (34V:- The claimant of Al-Shufa buys goods for the specified price, regardless, its market price is less, more or equal to the specified price. CR # (343):- Whether or not such right is effective when the price for the property is exchanged by its price not in kind and the claimant pays the price of price not its kind, there are two views, according to the stronger one it is

not effective. CR # (344):- If the buyer may have spent, for a broker or gift to the seller the claimant of Al-Shuf’a is not responsible for it.

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CR # (345):- If the seller gives the buyer discount, the claimant of Al-Shufa does not have the right to claim for such discounts. CR # (346):- According to a strong reason the claimant must not delay to claim, because hesitation and delay with no good reason invalidates this right, but not if it is because of good reason like one’s unawareness of the sale or the right or thinks of the price very high and then learns that it is not, or thinking of buyer as ’A’ then learning that he is ’B’ or that there are many persons and then learning that there is only one, or that the commodity’s half is 0.100 while, in fact, one fourth is 050 or that the price is gold but he learns that it is silver or that he is imprisoned wrongly or rightly for his inability to pay a loan etc. CR # (347):- The immediate demand for Al-Shufa that lets one receive such right means to register one’s claim immediately that is normally called demand without delay. If one is busy in an obligatory or even optional worship act, it is not necessary to disrupt it. CR # (348):- If the claimant is busy eating, say, lunch or drinking, it is not necessary to discontinue and rush to register his claim. CR # (349):- The claimant of Al-Shufa can wait for friends if he is on a journey if he needs the friend, hot or raining weather to get better, if it is commonly done so or getting ready or taking shower, etc., when he has already learnt about the sale. A delay like visiting sick people or seeing-off a friend etc., is objectionable, provided, not doing so does not cause people to speak ill against him. The same is true of starting optional prayers. Apparently, doing anything which common sense considers delay, invalidates Al-Shufa.

CR # (350):- If the claimant is away from the location where the sale has taken place and he knows about it and he can register his claim through his attorney and does not do so, his right becomes invalid. CR # (351):- The claimant must pay immediately. If he only says in words,"I hereby claim my Al-shufa" and then goes away or delays or is not able to pay, the commodity remains the property of the buyer, and words do not make it the property of the claimant. It is not that words make it his property but his not paying causes it to become the seller’s property again.

CR # (352):- If the buyer sells goods before the claimant claims his right, it still remains effective, he is allowed to buy it from the first buyer for the same price. In doing so the second contract becomes invalid, if the claimant

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authorizes the second sale it makes it valid and he can also buy it from the second buyer for the same price and this validates the first contract. CR # (353):- If more than one contract take place, from whichever buyer the claimant may overtake, it validates the one before it and invalidates what is after it. This latter could also be made valid by claimant’s authorization. CR # (354):- If the buyer uses goods as such that it affects Al-Shufa like giving it in charity or irreversible or reversible gift or as dowry, etc., the claimant can register his claim against the contract which invalidates all the subsequent uses. CR # (355) Shufa is a right that can be dropped by dropping or exchanged for money for dropping it or not claim it. In the first case it must be verbally waived and if it is not done so the claimant can claim it but he has committed an offence and the other party has the choice to annul the agreement and ask for refund or ask the claimant to drop and charge him for the amount of work and apparently, in the second case also. The claimant can also reach a settlement and in doing so it turns ineffective and annulled. CR # (356):- Apparently, without objection, this right is not transferable to someone other than the claimant.

CR # (357):- If a partner sells his share before claiming Al-Shufa, apparently, this right becomes invalid especially when his selling takes place after knowing about Al-Shufa.

CR # (358):- It is well known that for claiming Al-Shufa it is necessary to know the amount of price, but if one claims this right without knowing the price such claim is not valid, however, to consider such claim valid is not totally groundless. CR # (359):- If the commodity is totally destroyed before any Al-Shufa claim is registered, Al-Shuf'a becomes invalid and void. CR # (360):- If the commodity is partially destroyed the claimant can claim the rest of the commodity for the whole agreed price without any responsibility on the part of the buyer.

CR # (361):- If the commodity is destroyed after claiming Al-Shufa, if the loss is due to an act of the buyer he is responsible for it.

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CR # (362):- If the commodity is destroyed and it is not due to buyer’s act he is still responsible if it is because of his delay in giving possession to the claimant of the right. CR# (363):- Transfer of the right of Al-Shufa to the heirs of the claimant is objectionable, in the case of transfer, the claims of only some of the heirs without the rest of heirs is of no effect.

CR # (364):- If the claimant drops his right of Al-Shufa before a sale takes place such waiving is not effective, the same rule applies when the claimant witness the sale and congratulates the buyer, unless there is some clear indication of waiving it after the sale. CR # (365):- If a commodity is owned by two people of whom one is not present and a third party claims to be the representative of the other partner, it is lawful to buy it from him and use it and in this case claiming of the partner present the right of Al-Shufa after learning about the sale is objectionable, although its lawfulness is not far from reality; if the partner not present arrives his acknowledgement of such representative authenticates the deal, but if he denies it his words are effective on oath.

When he takes the

oath his share goes out of the claimant’s hand and the owner can claim rent from the claimant if the commodity has yielded profits, in fact, even without yielding any profits, and if the claimant returns it to the owner, he takes his demand against the person claiming to be the representative. CR # (366):- If the price is payable at a certain time later the claimant of the right of Al-Shufa can buy the commodity on the same terms, and apparently, he could lawfully be made to arrange for a guarantee for such terms, and the claimant can also buy and pay cash if the other party (buyer) agrees or go with the delayed payment if it is a condition made in favor of the buyer against the seller.

CR # (367):- The right of Al-Shufa cannot be annulled through Eqalah (see para. before rule 307) if the parties do arrange for Eqalah, the claimant of the right of Al-Shuf‘a can lawfully demand for the right of Al-Shufa which invalidates the Eqalah and after this the profits of the commodity belong to the buyer and the profits of the price to the seller just as was the case before it. CR # (367):- If according to the terms of the deal the seller has the choice to get the commodity back, apparently, this does not affect the right of Al-Shufa, but if the seller chooses to annul the contract the commodity comes back to him, in fact, the rest of the forms of the right of having the

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thoice to annul a contract could also be applied to this case and if the contract is annulled the commodity goes back to the seller.

CR # (369):- If the commodity is defective and if the buyer knows about it he

Joes not have the choice to annul the contract, or ask for compensation. Now

if the claimant of the right of Al-shuf’a claims it if he knows about it, he can have nothing but if he is ignorant, he has the choice to return it but he cannot ask for compensation, fits he buyer is j ignorant of this fact he can ask for

compensation but he has no choice to return and if the claimant claims

Al-shuf’a, he can return it, if this is not possible it is not far from reality that he can demand compensation from the buyer even if the seller may have been taken harmless against such demand,

CR # (370):- If the buyer learns about the defect after the claimant demands his right, apparently, he can demand compensation and must deliver the commodity to the clolenant If the claimant not the buyer learns about it, the claimant, in such case, cannot demand compensation from the seller and it is not far from reality for the buyer to demand compensation from the seller if returning the commodity is not possible.

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RENTING

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ONE

Rent is an amount of consideration in exchange for some profit of work or some other factor like the consideration paid for work of a mechanic as an

example for the first instance and the amount of consideration paid for the use of a house which is an example of the latter instance, CR # (371):- In forming a contract of renting or hiring, it is necessary to expressly communicate a formal offer and acceptance, i.e. in offering one’s work one Says,’ I complete this work for you", the landlord says," I rent you this house." The other party can formally express and communicate his acceptance by saying ,nI bays accepted it. An offer can also be made by the andiord or the hiring party as ,nl have rented you this house, or I have hired you for this work, the other party says," L have accepted it. Such contracts and

Jeals can also be formed by means of simple give and take deals.

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CR # (372):- It is necessary for the parties that none of them would be a *mahjur’- stopped from using his properties- because of childhood, mental illness, bankruptcy or slavery as well as not being forced, unless in the latter case it is for a justified reason. The following condition must exist in the commodities on both sides of the contract. (a) The commodity or work must specifically be identified because of a precaution. If the commodity is exchanged by means of weight or measurement or numbers, the weight, the measurement or the number must be known and if it needs observation or pesertion such observation and description must thoroughly be made own. CR # (373):- In renting something it is not necessary to exactly know the amount of benefits out of such rent when there is no deception taking place like renting a car to a certain place, when the benefit is known and not knowing exactly the amount of the benefits or the time which it would take one to reach the destination is not an offence. In other cases it is necessary to know the amount of the benefits and this can be done either by specifying the amount of time like the period of a year or six months when renting a house or the distance in renting a car like 4 miles or so or specifying the amount of work to be done in terms of the area by measurement or the time which it would take one to complete such work, specifying the time is necessary in the case of renting or hiring. If for example one rents a house for a year or rents a car for 5 miles the contract is not valid unless there is some indication to identify the amount of time etc, like an unrestricted contract that indicates immediate start.

CR # (374):- (a) In the case of hiring wherein the value of work is not related to time, apparently, it is not necessary to have a time limit in the contract, in fact, in such a case it is necessary to do the work on demand by the hiring person. (b) The parties must be able to deliver what each is supposed to deliver, otherwise, the deal is not valid even if some deliverable property is also added, therefore, hiring a runaway slave is not valid. (c) The substance rented must yield some profits, thus renting for plantation of a piece of land which does not have any water is not valid. (d) The substance rented must yield profits with its substance still in use, thus it is not valid to rent a loaf of bread to eat. (e) The yields and profits must be lawful, thus,renting real property to be used for unlawful reasons, like hiring a girl to sing prohibited songs is not lawful. (f) It must be possible to benefit from the substance rented or the person hired, thus, it is not valid to have a lady when she is experiencing her menses, to sweep the mosque. CR # (375):- If one rents another person’s property the validity of such deal depends on the permission of the owner, if one who is stopped from using his property because of being a muhjur like childhood, suffering mental illness,

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bankruptcy or slavery the validity of such deal depends upon the permission of the guardian. If one is forced to rent his property the validity of his deal depends on his own consent to the deal.

CR # (376):- If a person suffering from mental illness hires himself for a certain work, apparently, the renting is valid, but it is a precautionary measure to acquire the permission of the guardian. CR # (377):- If one hires an animal to carry a certain load, it is necessary to specify the quantity of the load, and if the animal is hired for riding the rider must be specified, if the animal is hired for tilling the field, the field must be specified. however, if the difference of load, rider or the field does not cause any financial difference then it is not necessary to specify the load, etc.

CR # (378):- If one says "I rent you this house for a month or two, the renting agreement is not valid. If one says "I rent you this house for a Dirham each month the renting is valid for the first month and void for the rest. The same rule applies if one says one month’s rent is one Dirham and if you stayed for more days the same rate will apply. This is a rule about rent, but if a deal is in the form of a price (a) Ju’ ala form of contract whereby one makes binding for himself to pay certain amount of money,saying," if anyone gives one Dirham, he can use this house for a dayn, or in the form of allowing the use in exchange for one Dirham, the deal is valid.

CR # (379):- If one says to a handyman, "if you paint this room one coat I give you one Dirham, if you paint it two coats you will have two Dirhams," if he intends thereby ’Ju’ala’ which is apparent from the statement it is valid, but if he intends thereby hiring it is not valid. The same rule applies to limiting the work with time, like saying "If you do not work today you receive such amount and if you do it in two days, you receive such and such amount. The difference between rent and Ju’ala can be stated as this, in renting once the contract is formally formed the landlord becomes responsible to make, say, the house available and the tenant responsible to pay the rent and abide by the conditions and rules of the contract. Thus, it is a binding contract, while in Ju’ala the person offering such deal becomes responsible only when the job is done and there is no responsibility on the part of the person doing the job, thus, it is a unilateral contract.

CR # (380):- If one hires a person for a certain work to be done with certain imitation like matters of time, place, material, tools or qualities and the work is done against such requirements, the worker is not entitled to any pay for his work. If the work cannot be done again, the party has the choice to annul ‘he contract totally or ask the worker for an equal amount of money with

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which the job can be completed, if he demands it the worker must pay him, but if it is possible to redo the job the worker must do it the way it is required. CR # (381):- If one is hired for a job with a condition in a manner that is included along with terms of the contract of hiring, like painting a room along with reading a chapter of the Holy Quran, and the worker does the painting but not the reading, the party can annul the contract and pay the worker what it takes to do the job again and the worker has to approve it and return the agreed payment. The difference between a limitation and a condition can be stated as this; the subject matter of the hiring contract when associated with a limitation is a certain portion of the job different from other portions but in case of the contract associated with conditions the subject matter of the hiring contract is the very nature of the job, but abiding by the effects of the contract is subject to the fulfillment of the condition by the other party.

CR # (382):- If one hires an animal to ride to a certain destination for one Dirham and sets a condition that if the animal can get him there at an earlier time he will pay two dirhams, such deal is valid. CR # (383):- If one hires an animal to ride to a certain place for two Dirhams and sets a condition that if the animal cannot get him there earlier he will pay only one dirham, it will be valid. CR # (384):- If one hires the animal with the condition that if he gets him there during the day he pays two Dirhams and if it gets him there at night he pays one Dirham and the hiring contract refers to either of the two in unspecified manners, the hiring contract is void. CR # (385):- If one hires a means of conveyance to take him to Karbala,name of a place- and he intends that he must be there on 15th of ’Shaban’name of a month- and he does not mention it in the contract and there is no indication available for such intention, the other party is entitled to payment even if the person is not taken to Karbala on 15th of Shaban.

CHAPTER

TWO

Cases Related To Binding Hiring Contract.

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CR # (386):- Hiring or renting contract is binding, once formed it is not lawful to annul it except through mutual agreement or the party annulling may have the right of having the choice to do so. According to a more clear reason, a hiring deal by means of Mu’atat - give and take as opposed to formally and literally communicating offer and acceptance of the literal contract is also binding. CR # (387):- If the owner decides to sell the substance or property he has rented or hired before the lease and time of the agreement ends, the hiring contract remains effective, the property is transferred, to the buyer without any profit until the lease or the time of hiring ends. If the buyer does not know about the lease or believes it is a shorter lease and finds it longer, he can annul the contract and he cannot demand compensation. When the contract is annulled the profits go to the seller.

CR # (388):- The rule stating that sale of the rented property does not affect the renting contract stands effective whether it is the tenant or someone else. CR # (389):- If one sells a commodity to someone certain time to another person and both deals take renting is void but not the sale but with no profit the commodity is rented. This gives the buyer the to annul the contract if he so may choose.

and his agent rents it for a place at the same time the during the time for which right of having the choice

CR # (390):- The renting contract or the lease stands effective, although one or both parties, tenant and landlord may die, like even if one rents a house for himself and dies after it. CR # (391):- If one hires himself to personally do a certain job and he dies within a time less than enough to perform the work, the hiring contract is void.

CR # (392):- If a previous generation of the beneficiaries rents out a certain endowed property, who themselves vanish before the expiration of the lease, the lease also becomes void. If such generation rents it out as supervisors of the property to safeguard the interests of all the beneficiaries, in this case, the renting contract stands valid even if that generation would also vanish. CR # (393):- If one hires himself to perform a certain work without any condition of doing it personally, such contract stands valid even if he dies within a time long enough for the job to be done or get done. It is necessary in this case to pay for that job from his legacy like other payable debts.

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CR # (394):- If a guardian rents or hires out the property of a minor or makes the minor to work on hire such contract is valid without objection. If the duration of rent would be longer than the time that takes him to become a mature person,

he has the choice to revoke the contract after his maturity,

however, if not including the time after his maturity would be against the interests of the minor, in such case, according to Ihtiyat revoking the contract after his maturity is not permissible. CR # (395):- If a woman hires herself to do a certain service for a certain time and within this time gets married, the hiring contract stands valid even if the job affects the conjugal rights of the husband.

CR # (396):- If she hires herself after marriage to perform a certain service the contract is effective and valid for only that portion of the service which does not affect the conjugal rights of the husband and for those parts which e ats such rights the contract’s validity depends on the approval of the usband. CR # (397):- If one finds some defect in the rented property, if he was aware of it during forming the contract, the defect has no effect on the contract, but if he was not aware of it, and if such defect affects the purpose of renting like losing profits like the damaged real properties, rent is void and the tenant can demand from the landlord compensation for his losses, and he can also annul the contract. This is only where no benefit at all can be achieved in any manner, otherwise, the tenant follows the rules of one’s having the right of

having the choice to revoke the deal because of defect in the merchandise. This is only when the substance is a specified one, if it is rather of a general nature and a defective piece is handed over, the tenant has the right to demand for one without defect but he can not revoke the deal, if a piece without defect cannot be given the tenant has then the choice to annul the deal. CR # (398) If the defect affects the profit the tenant has the right to annul the contract but cannot demand compensation. If the defect causes none of these, but only indicates that the rent must be lower in this case too, tenant has the right to annul the contract, if none of these exist there is no right of having the choice to annul the contract.

CR # (399):- If one finds out some defect in what is received as rent without his being aware of the defect, he has the right of having the choice to annul the contract, but he is not entitled to ask for compensation; if the rent is a commodity of a general nature and he receives a defective piece of a whole category, he does not have the right to annul the contract, he can, however,

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demand for a piece without defect and if such piece is not available, he can then annul the contract. CR # (400):- All forms of the rights to annul a deal are applicable to hiring or renting deals except 1 and 2 which are the rights to annul the contract due to on-going session and the special form of right due to the sale of animals. CR # (401):- When the contract of renting or hiring is annulled at the beginning of the term, there is no difficulty in it, if the contract is annulled during the term, because of a strong reason such annulment retrospectively annuls the contract from the beginning. The tenant is entitled to get back all the agreed rent that he has paid and the landlord is entitled to receive a rent based on fair market value for the time past.

CHAPTER

FOUR

Rules About Making The Rented Or Hired Property Available To the Other Party.

When the hiring contract or renting lease is formed the tenant or the hiring person becomes the owner of the profits of the property or work by means of the contract and in the same way the worker or the landlord become the

owner of the rent or the pay by means of the contract. The tenant or the hiring person cannot demand the profit or work unless they pay the rent or pay for work; in the same way the landlord and worker cannot demand pay or rent unless they render the work or make the rented property available. Everyone must make available what he is supposed to do, unless the other party refuses to do his part. The profit, in the case where work is involved, is delivered when the work is completed, and the finished product is made available to the owner. CR # (402):- The worker is not entitled to demand pay before completing the work unless a condition is set to have pay before work or there is a common practice to get paid before work is done, in the same way, the tenant and the hiring person cannot demand for the rented property or the result of the work before paying the rent or pay for the work. If the landlord does not make the rented property available despite tenant’s paying the rent the tenant can force him to make the property available or annul the contract and demand for refund of rent if paid. He can also keep the rent and demand for the lost profits if any. The same rule applies if the landlord makes the

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property available and then takes it back from the renting party soon after or during the time of lease. If the contract is annulled in mid-term he returns all rent and is entitled to receive a fair market value rent of the property of the time the property was in use. And the same rule also applies if the tenant poe pay rent when the property is made available to him by the andlord. CR # (403):- If in the case of a workman, the property on which he works is destroyed or lost after completing the work before delivery to owner and it is not due to his neglect, he deserves payment, but if the property is insured by the workman the owner gets compensation for finished job, otherwise, not. CR # (404):- The worker can hold the product of work until he is paid, if in such hold-up the product is destroyed but not due to worker’s neglect, he is not responsible for the product. CR # (405):- If the rented property is destroyed before the lease expires, the contract becomes void and if it happens before or soon after, it is made available to tenant, the owner is not entitled to receive anything from the tenant, if it happens sometimes after taking possession, the tenant has the choice to annul the contract; if he does the landlord refunds the agreed rent and the tenant pays fair market value rent for the time the property is used; if contract is not annulled, the landlord receives the rent by ratio to the time the property is used. This is if the property is totally destroyed, but if it is partially destroyed and some of it is not usable the contract is void proportionate to the destroyed portions of property from the beginning of the lease or mid-term and the tenant has the right to annul the deal.

CR # (406):- When the rented property is made available to tenant and he does not use it until the lease expires, he has to pay rent, the same rule applies if the tenant refuses to take charge of it to profit thereby until the lease expires. The same rule also applies, to workman and the hiring party who does not let him work until the time expires. The workman must be paid, regardless, he during this time does some other work for himself or others or not. According to a strong reason, it does not matter in renting property, it is a specified piece of house, a certain car, or equipment or in general like a car, any car, a two room apartment; an apartment etc. If the tenant uses the property to the end of term, he has to pay the rent, regardless, the rented property is of a general nature, the time is specified or not, when one has already taken charge of a piece of property of a general nature. Rent is payable even if the property is not used. If it is not used due to compelling reasons like natural ones to the end of term, the contract becomes void, and

the tenant does not have to pay any rent, if the obstacle is a particular reason only for the tenant like his becoming ill, thus, unable to use, the validity of

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contract is not objectionable. If a condition such as the tenant’s own use of the property is not set, but even in this case according to a strong reason the contract is valid, unless the preventing cause from use is as such that makes the contract void. If such cause exists before contract, like if a contract is

made to treat an illness but before treatment the illness goes away in this case the contract becomes void. CR # (407):- If the tenant does not benefit from the property only for sometimes during the term of the lease, the case will be dealt with just as in the previous rule and all possible cases therein. CR # (408):- If one takes away the rented property by force and, thus, not possible for the tenant to benefit, if it happens before the tenant takes charge of it, he has the choice to annul the deal and asks refund of the rent if paid or asks the usurper to pay market rent. If it happens after taking charge of the rental property he demands the usurper for market rent and the same rule applies if some oppressor prevents the tenant from benefits of the property but not the substance, he asks him for market rent of the time he was unable

to benefit. The tenant’s destroying the rented property is considered as his normal use of the same, thus, he must pay the rent. CR # (409):- If the landlord has destroyed the property, the tenant has the choice to annul the deal and demand refund of rent paid or demand him to pay the cost of the profits.

CR # (410):- If a third party destroys the rented property, if it happens after the tenant takes charge, the tenant demands this party for the cost of the profit. If it takes place before tenant’s taking charge of the property, in this case, he has the choice to annul the contract and ask the landlord to refund

the rent or approve the contract and demand the person destroying the property for the cost.

CR # (411):- If some part of the house is damaged and he - the landlord quickly starts repairs according to a strong reason if repair time is negligible the contract is not revoked ,if the time is not negligible the tenant demands for the equivalent of rent for the time under repair. He can annul the contract for the whole time because of split deal and divided, if he annuls the contract he can demand for refund of the whole rent paid and he owes to the

landlord a fair market value rent of the property before getting damaged. If the whole house is destroyed, apparently, the contract is annulled.

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CR # (412):- In cases where the contract becomes void, and the landlord is entitled to fair market value rent instead of specified rent it does not matter whether the landlord knows that the contract is void or does not know. CR # (413):- It is lawful to rent ones share of a property commonly owned; but it is not lawful to give possession to tenant without the permission of the other partner.

CR # (414):- It is lawful for two people to rent one house or some other property and share the profit like partners. CR # (415):- It is lawful for two people to hire themselves for one job and share the pay. They must both work to complete work. CR # (416):- According to strong reason it is not necessary for the contract and the time rented to start together. It is lawful that the time of rent starts one year after the contract or less or more, but it is necessary to specify the beginning of the term. If in the contract the beginning of the term is not specified, it is interpreted as to start right after the contract is formed. CR # (417):- If the property rented is of a general nature and then a piece of the category is made available to the tenant and that piece is destroyed; the renting party has to provide another piece.

CHAPTER

FIVE

Rules Related to Loss of Property Rented CR # (418):- The rented property is the owner’s property in the trust of the tenant, who is not responsible if it is destroyed or is made defective without any negligence on the part of the tenant. If the renting party sets a condition that the tenant is responsible to pay or compensate if the property is destroyed or is made defective it is valid. But holding of the tenant responsible for the price or kind, apparently, such condition is not valid. In the same way, the case of void renting contract, one is not responsible if the property is destroyed or is made defective.

CR # (419):- If ones property is destroyed or is made defective while with the workman, the latter is not responsible for it unless it is due to his negligence or trespassing.

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CR # (420):- If the landlord or the renting person sets a condition in the contract whereby the other party is held responsible to pay or compensate for the property if destroyed or made defective, such condition is effective.

CR # (421):- If the rented premises is destroyed or a third party has done it before the tenant starts any work or during the term before a time within which the tenant can complete his work, the contract is void and the rent paid is refunded to tenant the whole rent or partially as the case maybe. CR # (422):- If the property is destroyed by the tenant it is like his taking charge of the property and the landlord must receive the whole rent. CR # (423):- If the landlord destroys the property, the tenant has the choice to annul or approve the contract and in the latter case he may also demand for his losses.

CR # (424):- One’s cost is the cost of the time of becoming liable. CR # (425):- If a workman, a professional, a technician or a physician, etc.,

undertakes a work or a job and in his hand the job is damaged or destroyed hhe is responsible for the damage and the loss. This is when the worker exceeds the limit permitted by the other party, but if he has not exceeded the limit permitted and agreed to by the owner or the patient, etc., his being responsible is not free from objection, although according to a more clear reason he is not responsible, for example, a physician personally undertakes treatment, if the patient is harmed, he (the physician) is responsible for the damage as said just above but if he only gives opinion and diagnoses of the problem, apparently, he is not responsible.

CR # (426):- If a physician offers his services, provided, he is not held responsible and the patient or his guardian agrees and the physician’s performance is free of negligence in such case, he is not responsible, even though he personally undertakes treatment. CR # (427):- If a party, for example, carries someone luggage and it falls off and is damaged, he is responsible only when he walks negligently, otherwise, he is not responsible, and the same rule applies if the luggage falls on someone else’s property and causes damage.

CR # (428):- If the owner asks the workman to use some material for a job only if the material is sufficient and proper, but the worker cuts the material or uses it and it happens to be not enough and proper. The worker is responsible, but if he is told, use the material only if it is enough for the job

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and the worker says yes, it is enough, and uses it but it happens to be not enough, apparently, he is not responsible if the worker happens to be wrong in his opinion. CR # (430):- If someone rents his animal to carry someone load and the animal slips and the load is destroyed or damaged, the owner is not responsible, unless he causes it by disturbing the animal. If some other person causes the loss, he is held responsible. CR # (431):- If one rents a boat or an animal to carry loads, and the load is damaged or lost, the owner is not responsible, but he is held responsible if he is committed to such responsibilities ag has made a condition to pay or compensate.

CR # (43V:- If one loads an animal or a machine rented more than the agreed load, or more than commonly practiced and it destroys the carrier or damages it, he is held responsible for the loss, the fair market cost of extra

load besides the specified rent. The same rule applies if the carrier is used for an extra distance. CR # (433):- If one hires a carrier to carry certain loads to a certain distance, but instead he rides it or vice verse, he must pay the specified rent and the rent of the benefit received according to the fair market value. The same rule applies whenever the acquired benefit is different from the specified benefit in the contract, regardless, if it’s a piece of property or a certain amount of work. CR # (434):- If one is hired for a certain job and he on purpose or because of mistake does something other than what he is hired to do, he is not entitled for any pay.

CR # (435):- If one hires a carrier to carry a load for "A" but he carries a load for "B" he is not entitled to receive any payment from "A" nor "B". CR # (436):- If one hires a carrier to ride to a certain distance, but knowingly or by mistake uses another carrier, he must pay the specified rent for the specified carrier and fair market value to the second carrier. But if by mistake he uses someone else’s carrier, he pays fair market value fare to this and the specified fare to the one he had hired in the first place. CR # (437):- If one hires a ship to transport vinegar to a certain distance but he loads wine and the vinegar already specified. The owner of the ship must

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over is not lawful unless the first tenant is trustworthy, otherwise, if it is given to him the second tenant is held responsible. This is when the contract is unrestricted, but if the contract is restricted like being an animal for a specified person to ride, it is not lawful to rent it to another person, if it is done the contract is void and if the second party rides, knowing that his contract is void he has committed an offense, and he owes to the owner the

fair market value fare for the benefit he has achieved and also he owes the fair market value fare to the first tenant for the benefit he has lost. If he did not know the case but the first tenant knew it he demands from the first tenant what he has paid as compensation to the owner. CR # (443):- If, an animal for transportation is hired with a condition that only "A" personally benefits or must not hire it to another person but he gives it to ’B’ for some money, it is said that it makes the contract void, and if "B" acquires any benefits "A" not the owner receives market rent because of the loss of expected benefits, according to a more clear reason the contract is valid, the owner has the choice to annul the deal and demand ’A’ to pay market rent.

If one rents a shop, when the lease expires he must make it available for the owner and it is not lawful to rent it to someone else without the permission of the owner. It also is not lawful to make it available for someone in exchange for money if such money is not a condition in the contract unless the owner agrees. If the tenant dies it is not lawful for his heirs to make the property available to someone else in exchange for a certain amount of money, unless the owner agrees, if the owner agrees it is not necessary to exclude one third of the rent as part of the whole legacy even if the deceased may have said in his will, unless such exclusion is a condition for the owners agreeing to the deal. CR # (445):- If the tenant sets a condition in the contract or through another binding contract which gives him the right to make it available to someone else in exchange for some money and the owner agrees the tenant can lawfully do so and if he dies this right is transferred to his heirs and it becomes necessary to exclude one third of such benefits if the deceased only has asked for one third of his property to be spent for a certain cause. When the tenant has the right he receives such money even without the owner’s permission and if such money is of trade benefits it becomes necessary to pay 20% as khums out of its value which may decrease, increase or remain the same. CR # (446):- If a condition does not require the tenant to personally use the property it is lawful for him to rent it to someone for less or equal to the rent he pays or more if he has made some improvements in the property or the

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receive the specified rent and the fair market value rent because of wine, supposing to carry it would be lawful. CR # (438):- One who hires an animal to ride or to carry load, it is lawful for him to make the animal move by beating or stirring to the common practice limit, unless the owner forbids even such common practice also. If he exceeds

the common practice limit or does against the wishes of the owner he is responsible for the damage and loss; but if such practice is lawful he is not responsible for any loss according to a strong reason. CR # (439):- The owner of such public places like a club, etc. is not held responsible for ones clothes or other personal belongings if lost, unless, it is kept in his trust of which he has assumed responsibility or it is because of his negligence. CR # (440):- If one is hired as security-guard to watch someone property and it is stolen, the guard is not held responsible unless it is due to his negligence and shortcoming. Apparently, if the guard is overcome by sleep it is not considered negligence. However, if it is agreed in the contract that the guard pays the cost if the property is lost, he must stand by his promise, but in both cases the guard does not deserve any pay. CR # (441):- It only is necessary for the owner to hand over the rented property to the other party if benefitting is not possible without being given to him like as in the case of professional tools or there is such condition for it in the contract, otherwise, it is not necessary as in the case of a rented ship for transportation.

CR # (442):- For validity of renting contract it is enough that the owner is the owner of the intended benefits of the property even if he does not own the property. If one rents a house, he can rent it to someone else, even though he may not be the owner of the house. If benefitting from the property depends on one’s handing it over to the party, the second renting party must hand it over to the tenant even if the owner may not agree to it. If benefitting depends upon handing over, it is necessary for him owner of benefits - to hand it over to his tenant, even if the owner would not allow it. If benefitting from the property does not depend on handing it over to the party, like a ship, it is not necessary for the first renting party to hand it over to the second tenant unless a condition calls for handing it over. It is not lawful for the second renting party to hand it over to the first tenant even if a condition calls for it, in fact, such condition is not valid. If the owner agrees he can hand it over to the first tenant, also in the previous case in which it is necessary for the second tenant to hand it over to the first tenant, handing

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substance of rent is different from that of rent he pays to the owner, even if they are not of such substance except a house, shop and workman, it is unlawful to rent for more than what he has rented, and for precaution, ships are also dealt with like houses, shops and workman. Also according to such view the same rule applies to mills and land, even though according to a strong view it is lawful in the two latter cases, but it is detestable. CR # (447):- Houses, shops and for precaution also ships must not be subleased for more than the agreed rent with owner without any improvement work in it, but for less there is no objection. According to a strong reason subleasing for the same rent is lawful. CR # (448):- If one hires himself for a certain work without any condition of personally doing the work or other such indicators, he is allowed to hire someone else for the work, for the same pay or more but not for less unless he has done some of the work, even just a little or that the payment is made with a different kind of property. CR # (449):- When it is necessary for the worker to have the substance, on which he works, in his hands and if it is lawful for him to hire someone else,

he can give it to the second person just like the case of a property rented to a second person by the first tenant. CR # (450):- When one hires himself for work to personally do it but someone else does the work in less time than the first person could do, the contract becomes void and none of them is entitled for any pay. The same rules applies to a case wherein one has to do a work without any condition of personally doing it and someone else does it, not as a volunteer ,but if he does it as a volunteer the first person is entitled for the payment.

The Two Kinds of Renting or Hiring: CR # (451):- (a) That the subject of the contract is some existing benefits, contrary to someone becoming indebted like hiring an animal or renting a house or some other property. (b) The subject of the contract is a work which someone owes to perform and is indebted, just as other loans or debts. In (a) if there is time limit, it is not lawful for the worker within this time to work

for himself of for someone else for pay or as a volunteer or for JU’ALA. It is not an offense on his part to do the works that are out of the scope of the contract and are not contrary to it like when the contract requires to work during the day and one works at night for oneself or others for pay or no pay or JU’ALA unless such works affect one’s performance during the day. If one works during the time the contract requires him, if he works for himself, the

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FIVE

Miscellaneous Rules CR # (452):- It is not lawful to rent land for plantation for a rent to be paid from the produce of the same plantation like wheat, barley etc., in the form of specified quantity or a share of common nature like one third or one fourth of the produce etc. It however, is lawful to receive as rent the same quantity of wheat or barley to be paid by the tenant even if it is the kind of the produce of land, if so then paying such rent in the form of other kinds of grains is free of objection, although precautionary it should also be avoided. CR # (453):- It is lawful to rent an unspecified portion of a certain piece of land as it is lawful to rent a portion of it in the sense of a portion of a general nature limited and confined in one existing individual.

CR # (454):- It is not lawful to rent for a long time a piece of land to be made an endowment as mosque; the rules of a mosque do not apply to it however, it is lawful to rent for praying and worshipping at it etc., but, as mentioned the rules of a mosque do not apply to it. CR # (455):- It is lawful to rent trees for the benefit of its shadow in hot season, or such reasonable benefits as it is lawful to rent a garden for recreation. CR # (456):- It is lawful to hire a person to collect fire-wood, grass or such other reasons. If the contract is for a specified benefit only or with other benefits also, the owner of work becomes the owner of the materials collected, even if the worker intended the materials to be for his oneself or someone other than the owner of work. If the contract is for a certain work for which the worker is indebted, if the worker intends the work to be what

he owes and has worked to fulfill his promise in the contract, the owner of work becomes the owner of the materials collected but if the worker intends the work to be his oneself or someone other than the owner of work according to the contract, provided, such reservation and is lawful, the reserved material becomes the property of whom the worker is reserved, the owner of work according to the contract can revoke the contract and demand for the specified cost of the work belonging to him or approve the work and

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If the worker does a work that interferes with the requirement of the contract the owner of work has the choice to revoke the contract and demand for the cost of the work not done. If the worker hires himself for a work which interrupts the requirements of the first contract the validity of the second contract depends on the approval of the owner of the work of the first contract in the form of his waiving his rights, if he does not approve the second contract it is void and the worker deserves payment according to fair market value from the owner of work. The owner of work according to first contract has the choice, as mentioned, to revoke the contract and demand for the cost of the work he has lost.

If the owner of work according to the first contract approves the second contract, the worker deserves the specified payment from both the owners of works according to the first and second contracts, and he would not be free of his responsibility of the work according to the first contract. The same rule applies if the contract allows alternatives for the work to be done, in any case, the worker has to complete the work and approval of the second contract does not relieve him of this responsibility, such approval removes the condition requiring to personally work. The worker must work for owner of work according to first contract, but not necessarily personally and work for the owner of work of second contract personally. However, in case (b), the case of alternatives is not free from objection.

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other party has the choice to revoke the contract and demand for refund of what he has paid, or approve the contract and demand for the cost of work that the worker has already done for himself or has volunteered for someone else. However, it is possible for him to demand the third party the beneficiary of the work to pay, thus, he has three choices:

(a) Revoke the contract and demand for the agreed price of the work.

(b) Approve the contract and demand for the cost of work done for the third party or ask the third party for the cost of work done for him, the latter case is Objectionable. If he works for someone else by means of contract, or JU’ALA, the owner of the work has one of the two former(a) or (b) choices and approving this contract or JU’ALA and receive the rent for the second contract and the payment for JU’ALA and it is very possible that the owner of the work can demand the beneficiary of the work to pay, in such case, the owner of the work has four choices (a) (b) (c) and one more. Furthermore, if the owner of work chooses to revoke the contract in all of these cases, and

goes with the specified pay or rent and the worker has already done some of the work he is entitled for the fair market value payment for his work. This is when the subject of the contract happens to be the benefits but if the contract is made for a specified form of work, the worker is not supposed to do such work for himself or a third party for pay or without it because of a second contract or JU’ALA if he works for himself the owner of work has one of the two first choice. If he works as a volunteer for a third party the owner of work has one of the three choices, if he works because of a second contract or JU’ALA the owner of work has one of four choices. In this case and in the case before it, the worker can work for himself or a third party because of a second contract or JU’ALA a work different from the contracted work at first, provided, the second contract does not interfere with the first contract. If one hires himself in a certain day to fast on behalf of "A" it is lawful for him to do some sewing work for himself or others because of a contract or JU’ALA he can have the pay or receive payment for JU’ALA. But if work

interrupts the first contract like when the contracted work is sewing and the worker starts writing, in this case the owner of work has the choice to revoke the contract or demand for the cost of the work which is supposed to be done. In (b) where the subject of the contract is a certain amount of work owed by the worker and is indebted for it in this case too sometimes the contract requires the worker himself to work with one choice only and

sometimes the contract allows alternatives also. In the first case the worker can undertake a work that does not interfere with the requirements of the first contract, but it is not lawful for him to do any work that interferes with the requirements of the first contract, regardless, the work is of the same nature or different.

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ask for the cost of work belonging to him according to the contract which is not done for him.

CR # (457):- It is lawful to hire a woman for breast-feeding a child or use her milk even if she may not do any breast-feeding work for a certain period of time, the child must be specified to avoid possible fraud, by means of fully describing the baby if not in person, as well as knowing fully the pois lady, the place and time if it would make some financial erence. CR # (458):- It is lawful to rent trees for the benefits of its fruits or hire a cow or a woman for a certain time for the milk that can be provided after the contract. The same rule applies to trees for fruits and wells for water, but renting or hiring such items for the benefits existing with them during contract is not free of objection, in fact, to be unlawful is more apparent. CR # (459):- It is lawful to hire oneself to sweep the mosque or the holy shrines etc., or to light up such places etc.,. It is not lawful to hire oneself for the obligatory worship acts, except Hajj for a person who is not able to perforrn it personally, but it is lawful to hire oneself to perform optional worship acts on behalf of someone else but to perform all optional worship acts even like daily prayers and fasting, is objectionable but it is not an offense to perform such acts in the hope of their being desirable in the sight of Allah.

CR # (461):- It is lawful to hire oneself to perform the obligatory worship acts on behalf of a deceased as well as optional worship acts, the worker, in this case, can consider such work as his own but ask Allah to grant the reward for such work to the deceased.

CR # (462):- If one orders another person for a certain work and that person performs such work if he does it as a volunteer, he does not deserve any payment, even if the ordering person wanted to pay. If the worker does it for payment, he deserves it even if the ordering person wanted it to be free of charges, except if there is some indication for it to be free of charges like when it is a common practice or the worker does not usually do such thing for payment or there are such indications that prove it to be free.

CR # (463):- If one is hired for sewing or writing according to the free and unrestricted nature of the contract, the ink and thread has to be provided by the worker, and the same rule applies to all such works that require such

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materials unless a condition in the contract demands the owner of work to

provide materials or there are other such indications. CR # (464):- It is lawful to hire a person and ask him to do whatever is needed, provided, the person is able to do such works and usually the person does such works, and according to a strong reason, he bears his own expenses, not the owner of work, unless a condition in the contract calls for it or there are some other indications even if it is due to common practice. CR # (465):- It is lawful to use someone’s services and command him to work without specifying the amount of payment, but such practice is detestable, in such case, he pays fair value pay for benefitting from the services but not because of hiring. CR # (466):- If one rents a piece of land for plantation for a certain time and plants therein some thing that cannot be harvested before the expiration of the lease, aher the lease expires the owner has the right to ask the tenant to remove the plantation; the same rule applies, if it is rented for plantation in general he can not keep it after the lease expires without the permission of the landlord, even if the rent is paid, and the tenant cannot demand compensation if the plantation is damaged because of removal, the same rule applies, if the plantation for some accidental reason is not removed from the field according to a more clear reason. ;

CR # (467):- The tax of the taxable land is the responsibility of owner,however, if a condition in the contract requires the tenant to pay it is valid according to a strong reason.

CR # (468):- It is lawful to receive payment for narrating the tragedy of KARBALA and the virtues of the family of the holy Prophet, or lectures on religious themes etc., and things that are reasonable worldly or religious benefits. CR # (469):- It is lawful to hire oneself for such worship acts which are allowed to be performed on behalf of someone else, dead or living, regardless, it is obligatory or optional. It is not lawful to receive payments for teaching what is lawful and what is forbidden and for teaching the obligatory acts, like prayer, fasting etc., which every one faces every day but if it is not of the kind every one all the time faces still it is not free from objection. It also is not lawful to receive payment for washing and preparing a dead body for burial, however, apparently, it is lawful to get paid for digging a grave in a special way in its length, depth etc., but receiving payment for the digging the

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grave to the necessary limit and degree is not lawful and it cannot be contracted,

CR # (470):- If the roots of plantation remain in the field which was rented for such purpose and plants grow out of such roots if the owner does not want them any more such plantations belong to whoever has reserved them first, be it the owner or others, however, it is not lawful to enter the field

without the permission of the owner, if the owner has not abandoned them such plantations belong to him. CR # (471):- If one hires a person to slaughter an animal and this person does it not exactly the way it is required by sharia that person is responsible for the loss; the same rule applies if the person does it as a volunteer without owner’s permission. CR # (472):- If one is hired for sewing a certain piece of cloth without any condition for him to personally do such work, it is lawful for another person to volunteer, in this case, the person who is hired deserves the specified payment but not the person who has volunteered for the work if someone does the work of sewing but not as an agent of the worker according to the contract, the contract is void, if it happens before a time within which the

person hired in the contract can do the job, otherwise, both parties of the contract have the right to revoke the contract. This is when the work is not done because of the order of the owner or because of a second contracting, otherwise, the person hired in the first contract must be paid, according to a more clear reason. Simply because of owner’s not giving him the chance to do the work. The person who has done the work is entitled to receive fair market value payment for his work, if the owner has ordered to do it. The same rule applies if he is hired by a second contract, because the second contract is void, the worker deserves fair market value payment for his work even if it would be less than specified payment according to the first contract.

But if he does the work without his order or permission, he is not entitled to any thing even if he may think that the owner has ordered him. CR # (473):- If one is hired to deliver some of one’s property to a certain place within a certain time and he starts the journey for the delivery and because of some obstacle on the way he can not reach the destination, the

contract becomes void and if he is hired just for the delivery, he does not deserve any payment but if he is hired for the journey and the delivery he must be paid proportionate to the amount of journey and the work done but if the contract is formed for one purpose, apparently, he does not deserve any payment.

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CR # (474):- When the worker has the choice to revoke the contract, because of loss, violation of a condition, the presence of a defect, if he

revokes the contract before starting the work he does not get paid, if it happens after the work is done he is entitled to fair market value payment for the work if it takes place in the middle, he is entitled for the fair market value payment for the work proportionate to the amount of work done and what is left, unless the work as a whole is one unit, like prayer and fasting in which case partial amount would not serve any purpose like half prayer and half day of fasting is not fasting. CR # (475):- If one rents a substance for a certain time and then buys it

during the terms of the lease the lease remains effective, but it is sold during the terms of the lease, in this case, whether the benefit follows the substance

or not there are two views according to the stronger view it does follow the substance. CR # (476):- It is lawful to rent a piece of land for a certain time to built a house on or turn it into a garden, dig wells therein, plant trees etc., but it is necessary to specify the quantity and quality of construction. CR # (477):- It is lawful to hire oneself for treating a certain illness, by giving prescription or direct work like operating etc. CR # (478):- It is lawful to contract treating a patient with guaranteed recovery, if such guaranty is a common practice like the most guaranteed works that depend upon factors beyond the worker’s control, but such goals are usually reached when decision is made to work.

CR # (479):- If the tenant drops his right involved in the substance of the property rented it is of no effect and the benefit of the property remains his property.

CR # (480):- In the case of HAJJ to be performed by a proxy and the journey to start from the principal’s home town it is not allowed to hire Mr. "A" to journey from point B, C and Mr. "D" to journey from point C-D and so on, it is necessary to hire a person who starts the journey and completes HAJJ. CR # (481):- If one is hired to say prayer on behalf of a deceased or a living person and he omits some of the parts and conditions not of the "Rukn" principal ones by mistake, if the contract requires a valid prayer, as an unrestricted contract would normally indicate, the person hired deserves the payment, the same rule applies if the contract requires certain acts of prayer

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and the omission does not exceed the limit of common practice, but if the omission is more than the limit of common practice his pay is reduced proportionately.

CR # (482):- If one is hired to recite the whole holy QURAN, for precaution, the sequence among the chapters and verses and words should be maintained. If some words are not said correctly and he learns about it later after finishing the chapter or the whole holy QURAN, if such mistakes do not exceed the limit ofcommon practice, he deserves the whole payment but if it exceeds such limits, correcting such mistakes by reading them correctly is objectionable, it is a precautionary way for him to read them correctly and

continue reading until the end of the chapter. CR # (483):- If one is hired to say prayers on behalf of Mr. "A" and mistakenly he prays on behalf of Mr. "B" if his mistake is due to mistake in wrongly discerning the person of the principal, like when one intends to pray on behalf of his principal and does so but in practical life he believes that Mr. "B" not "Anis that principal while, in fact ’A’ is the principal, he still must be paid and the prayer is valid on behalf of ’A’ but if the mistake has some other form he is not entitled for payment and the prayer is not valid on behalf of #6

CR # (494):- In the cases where it is lawful and permissible to hire an adult person to perform certain optional worship act on behalf of some one else, to hire a child for such works is also permissible, ALLAH knows best.

BOOK OF SHARE (MUZARA’A)

CROPPING

It is an agreement between the land owner and a person ready to undertake farming and plantation in exchange for a certain portion of the produce. In this agreement the following conditions and matters are required. (a) An offer from the landowner followed by an acceptance from the farmer, by means of communicating and expressing the intentions of the parties about such agreement, the agreement of making the land available on the part of the owner and the acceptance, of the other party. It verbally could be expressed by such words as, "I make the land available to you for farming and plantation, followed by the farmer’s words such as, "I have accepted." It can

also be expressed through the deeds indicating the owner’s intentions of making the land available for farming and the other party’s acceptance. It is

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not necessary to express such agreements in Arabic language or the use of the past grammatical tense. It also is not necessary to first express the offer. It is not necessary for the offer to be made by the owner of land and acceptance by the farmer, in fact, the reverse also is good and valid. (b) Both parties must be mature, free of mental illness and free of compulsion and duress. The owner must not be under a court order not to use his belongings because of certain financial problems like bankruptcy or health reasons like mental illness and the same rule applies to the worker if he is involved in some financial dealings. (c) The share of both parties must be taken from the whole produce, thus, if the first harvest is agreed to go to a certain party and the last harvest to another party, the contract is void, the same rule applies if the whole produce is given to one party. (d) That the share of each party must be a certain portion of the produce in common like one third, or one fourth etc. If the owner says, " cultivate this land and give me whatever amount you like, the agreement is not valid and the same rule applies if certain specified amount like 10 tons is agreed to go to a certain party. (e) Specifying the duration and the total time of the contract in terms of months, years, or season within which at least it would be possible to farm and harvest, thus, after specifying the beginning of the term, it is enough to consider harvest time the end of term. (f) The land must be good for cultivation, even after some repair works and improvements, but if it is not

good and cannot be cultivated, the contract is void. (g) Specifying the kind of plantation if there exists any difference in the parties’ choice of views, otherwise, it is not necessary. (h) Specifying the piece of land and its boundaries and its area, otherwise, the contract is void. If, however, it is

specified only by saying ten acres, of this land, while all parts of that land are of the same nature, and would not result in any deception or fraudulent situation, this also is enough for specifying requirements. (i) Specifying the expenses like seeds etc., as who would be responsible for such expenses one party or both and how much will be each one’s share, if both would provide a certain amount. The common practice in the community around is also a way of specifying such expenses, as the general nature of the contract also refers to such standard.

CR # (485):- It is lawful for the farmer to cultivate the land all by himself or with someone else as partner, provided, a condition in the contract does not require him to personally farm the land.

CR # (486):- If one allows someone to cultivate his land for a certain portion of the produce, can such deal be considered, the popular share-cropping contract or not; there are two views about it. According to the more clear reason it is share-cropping contract and the rules of such contract apply to it, the same rule applies if the landowner says, “any one who undertakes

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cultivating work of my land, will have one-half of the produce or one third > etc."

CR # (487):- It is said that it is lawful to assign a certain amount of the produce for one party, provided there is such extra amount, and divide it according to the specified ratios. In the same way it is lawful to exclude a certain amount for a certain expense, like taxes, cost of improvements and the amount of seeds which is the responsibility of one of the parties but, except for taxes, excluding other items is objectionable, in fact, it is not allowed. CR # (488):- If the owner sets a condition in the contract which requires the farmer to cultivate only a certain kind of plantation, like wheat or barley etc., it is not lawful for the farmer to cultivate something else, but if he did, the

owner has the right to revoke the contract or approve it, if he revokes he demands from the farmer the fair market value payment equal to the value of the benefits of the land lost. The produce of farming belongs to the farmer if the seeds were his but if the seeds belong to owner he can demand for its kind and if the kind of seed is given to owner the produce goes to farmer and the farmer cannot demand payment for his work from the owner. This is when the owner learns about it after it is about harvest time but if he learns before such time, he can demand compensation for the lost benefits of the land, and force the farmer to clear the land of plantation or let the plantation until harvest for a certain amount of rent or free if the seeds belong to farmer. If the seeds belong to the owner he can demand for replacement for the benefits of the lands he has lost and the seeds, if the seeds replacement is returned the produce goes to the farmer this is when a condition in the contract requires it, but if the specification requires the farmer to grow a certain kind of plantation in a restricted sense not as a condition in the contract, the agreement becomes void (See Rule 381) for difference between a condition and a limitation.

CR # (489):- When the invalidity of share-cropping agreement is discovered, after the land is cultivated, if the seed belongs to the owner, the plantation belongs to him and he owes to the farmer all that he has spent and payment for his work and his tools used. If the seeds belong to the farmer, the plantation belongs to him and he owes to the owner rent of the land and all that the owner has spent. If the owner agrees to let the plantation stay on the land for rent or free, the problem is solved; but if the owner does not agree,

he can force the farmer to clear the land even if the farmer cannot have any produce and suffer loss. The farmer cannot force the owner to let plantation stay in the land even for rent, just as the owner cannot force the farmer to let the plantation stay in

The Book of Share Cropping (Muzara’a)

486

- the land even for no charges. The same rule applies when the lease expires and the plantation is not ready for harvesting. CR # (490):- It is valid if one party sets a condition to receive something other than the produce like gold or silver owed to one party by the other besides his share of the produce.

CR # (491):- Share-cropping agreement is a binding contract, it cannot be revoked unless the parties formally agree or is annulled on the basis of a party’s having the right of choice to do so because of other party’s violating a required condition on his part. The contract does not become invalid because of one party’s death, the heirs take charge of the deal, however, if a condition in the contract requires the farmer to personally do the work and the farmer dies, the contract is annulled.

CR # (492):- If the farmer after formalizing the contract leaves the land without cultivation until the time of lease expires if the land was at his disposal, and he has left the land as such without any good reason, he owes the fair market value rent to owner, regardless the owner knew about the case or not, or even if the land was not at his disposal, the owner was incharge of the land instead and if the owner knew about it, apparently, the farmer is not responsible, otherwise, he, the farmer is responsible.

CR # (493):- It is lawful for the parties with consent of the other to estimate the quantity of the plantation, thus, the rest of the farm goes to the other party, and the farmer gets that certain amount, or if some of it is destroyed they both share the loss. CR # (494):- If the land is flooded before the farmer takes charge of it or after his taking charge before the plantation grows or before harvest the share-cropping contract becomes void. If it is only partially flooded, the parties have the choice to revoke or approve the contract, and keep it. CR # (495):- According to a strong reason it is not lawful to make share-cropping contract between more than two parties in which one party has the land the other has the seeds and another party undertakes the work and another one managing etc., the same rule applies if a whole group shares a share-cropping deal.

CR # (496):- It makes no difference for the validity of contract whether the seed belongs to owner or farmer or both but all must be mentioned and formalized in the contract, unless there exists a well-known common practice which explains the nature of the contract. Also it does not make any

ISLAMIC

LAWS

OF

CONTRACTS

487

difference whether the land belongs to one party or both; both parties do the work or not and the same is true of tools and other factors. In general it all depends upon the terms of the contract. CR # (497):- If some thing happens before the plantation grows or before harvest, like when water is cut off or is flooded-or there is some other obstacle which makes it impossible to reach the produce, apparently, the contract retrospectively becomes void, thus, the existing produce goes to the party to whom the seeds belong if he is the owner he pays the fair market value wages to the worker, and if the seeds belong to the worker he owes fair market value rent of the land to the owner of land. CR # (498):- When land under share-cropping contract happens to be usurped and the seed belongs to the worker, the contract is void from the side other than the farmer if the owner approves the contract, it becomes effective in his favor, otherwise, the produce goes to farmer and he pays fair market value rent of land to owner. If the above case is discovered before harvest the owner has the choice to revoke the contract or approve it, if he revokes he can demand to clear the land or agree to let the plantation stay for rent and the farmer has to pay fair market value rent of the land for the time past. CR # (499):- It is necessary for both parties to pay ZAKAT if every one’s or only one’s share is more or equal to the standard quantity for which ZAKAT becomes payable, this is when the plantation is commonly owned by the parties from the beginning of plantation or the time fruits started to appear before they could be called fruits. But if the parties have made a condition that requires them to become partners only after the time when fruits appear or at the time of harvest and collecting in such cases ZAKAT becomes the obligation of the owner of seeds, regardless, he is the owner or works.

CR # (500):- If in the next season after the lease expires and plantation is harvested plants grow out of the remaining roots, such plantation belongs to land-lord if due to a condition in the contract they are not partners in the roots also. CR # (501):- If the parties differ about the duration of lease, one holds it to be longer and the other shorter, the words of one who denies it to be a longer time, will be accepted. If they differ about the amount of each one’s share and one says it is a lesser amount and the other says it to be a greater amount in this case the words of the owner of seeds who believes it to be a lesser amount, are accepted. If the parties’ difference is based on the fact that who

The Book of Share

Cropping

(Muzara’a)

488

is responsible for seeds, work and workers, one solution is both on the basis of each one’s swearing or their refusing to do so, the contract is revoked. CR # (502):- If the farmer does not treat the land properly and as a result there is less produce, he very possibly could be held responsible, provided, the seeds in this case belong to the owner, but if seeds belong to worker and the neglect in treating the land takes place before plantation starts to grow, he is not responsible, but the owner can revoke the contract and demand for the fair market value rent for the land. CR # (503):- If the owner accuses the farmer of not fulfilling some conditions of the contract or not doing some works or neglecting the plantation with harmful results or not watching the farm etc., and the farmer denies it, his words are accepted. The same rule applies whenever one party claims certain things and the other party denies it until he proves his case to be true according to shar’i standards. CR # (504):- If the supervisor of some endowed land for certain generations forms a share-cropping contract for a certain time as he may think to be for the good of the beneficiaries, such contract becomes binding and it does not become void due to his death. But if such contract, as mentioned in rule 481 is made by the former generation of beneficiary and such persons die during

the terms of contract before it expires the contract becomes void at that time, unless the next generation of beneficiaries approve it.

CR # (505):- It is lawful for the landlord and farmer after the plantation appears from the ground to reach settlement among themselves about each other’s shares in exchange for some thing of its kind or other things after estimating the quantity of the share on the basis of common practice as it is lawful even before the plantation appears from the ground by including some other property in the deal. CR # (506):- It is not necessary for the validity of contract that the land which is the subject of a share-cropping contract be ready for farming at the very beginning of the time the contract is formed or in the first year, in fact, such contract is valid even if the land is barren and not fit for farming before certain improvements that could be done in one or more years. Thus it is lawful for the supervisor of endowed land for the benefits of a general purpose or a specified one, a land which has become barren since ten years or less or more the way he considers it to be beneficial for the beneficiaries to form a share-cropping contract.

ISLAMIC

LAWS

OF

THE BOOK (MUSAQAT)

CONTRACTS

OF

489

IRRIGATION

The Arabic word MUSAQAT means an agreement between two partiesfor irrigating fruit bearing trees and looking after them for a certain time in exchange for a certain portion of their fruits. THE FOLLOWING MATTER:

ARE

CERTAIN

CONDITIONS

IN

THIS

(a) There must be an offer and acceptance by the parties which can be expressed by any form of communication that would indicate the intention of the parties, by words, deeds etc. It is not necessary to express such intention by means of Arabic words nor it is necessary for certain terms in the contract to have the past tense mode and form. (b) The parties must be mature, free of mental illnesses and free from compulsion and duress, but freedom of one’s activities from the control of court; a condition called ’Hijr’ or suffering from mental-iliness may only exist on the part of the owner, not the worker. (c) The roots of trees must belong to the party completely or only their benefits or at least he must be authorized to deal with it as a supervisor or agent.

(d) The trees must be known and specified. (ce) The length of time of work harvest as the end of such time or time the fruits could be picked up, is void. (f) The share of each party

must be specified either considering the in terms of months and years within which but if the time is less than this the contract must be specified and that such share be a

certain ratio of the whole amount of produce, thus, it is not lawful to assign

the fruits of a certain tree as the worker’s share. However, it is lawful to assign a certain amount like one ton besides the share according to the common ration of the whole product when they know that there will be some more fruits left. (g) Specifying the responsibilities of the parties, common practice and other strong indications which show what each and every one’s responsibilities are, would also be enough for specifying the responsibilities.

() The irrigation must e time nai if vrigatiog the validity of not free from objection.

be made before the fruits appear or after it before the trees need irrigation but if they do not need contract on picking up the fruits or watching them is (i) The contract must be based on such plants that

The Book of Irrigation (Musaqat)

490

have permanent roots but if they are like watermelons or egg-plants etc., apparently an irrigation contract cannot materialize and considering such a case an independent contract and valid is open to objection, but precaution should be observed. Irrigation contract for fruitless trees is not valid. Even the validity of such a contract about the trees that are used for their leaves also is not free from objection. CR # (507):- In an irrigation contract for trees that do not need water because of rain or their roots receive water from the soil, even if they need other works, is not valid.

CR # (508):- It is lawful to agree to assign a certain amount of gold or silver for one party in addition to his specified share, but is it necessary to pay such amounts if share of fruits is not delivered there are two or several views about it according to a more clear one of these views it is necessary, regardless, such condition of paying gold or silver is in favor of the owner or the worker, or whether no fruits at all appear or are destroyed after they appear. CR # (509):- It is not an offense if owners are more than one person, the worker is only one person, thus, partners, for example, can have one person to irrigate their trees, the same rule applies to the reverse of this case. i.e. one owner two workers, or that on both sides of the contract there are more

than one person as owners or workers. CR # (510):- Paying the taxes of the land is the responsibility of the owner as well as building walls around the trees or digging wells etc., which are not related directly to the growth of fruits.

CR # (511):- The worker becomes the owner of the share assigned to him, if the contract is free of conditions and limitations, from the time fruits appear,

if the contract takes place after the fruits appear, he becomes the owner from the time of the contract. CR # (512):- According to a more clear reason a contract which would say that ’A’ plants certain trees on "B’s" land so that they share such trees equally or one party will have more or less, such contract is not valid. If such a thing happens the trees belong to the owner of land and the worker would deserve fair market value payment for his labor if the other party of the contract is the owner and if the worker himself is the party of the contract the owner demands from him for the fair market value rent of the land. He cannot force the owner of land to let such trees stay therein even for a certain amount of rent. It is necessary for him to cut them down if the owner does not agree

ISLAMIC

LAWS

OF

CONTRACTS

491

and he also must repair and fill-up the ground because of damage etc, and the owner cannot cut such trees and if he did and the trees are damaged, he

is responsible for the damage.

CR # (513):- If in the irrigating agreement and contract all the product is said to go to owner such contract is void despite this the whole product belongs to him and the worker cannot demand any payment because he has started to work free, but if the invalidity of contract is because of some other reasons, it is necessary for the owner to pay fair market value payment to worker. : CR # (514):- The irrigation contract is binding; it cannot be revoked without mutual agreement or without an effective right in favor of one party to do like violation of conditions set in the contract or other reasons of invalidity in the contract.

CR # (S515):- If the owner dies his heirs replace him; the irrigation contract stands effective. If the worker dies his heirs replace him, provided, his working in person is not required by the contract, otherwise, if it also is said in the contract that the farmer must not leave the trees to other persons, the contract becomes void. If the condition does not prohibit the farmer from leaving the trees after his death to other persons then the land-lord may revoke the contract or work with the heirs of the farmer. The heirs of worker do not work or arrange for it; the authorities of sharia hire workers for the job and is paid from the deceased’s property and the product is divided between owner and heirs of the worker. CR # (516):- An irrigation contract with no conditions and limitations against it requires that works needed for the up-keep of the trees tools and watering have to be provided by both parties in equal amounts, unless there are some indications telling othervise and show certain things as a certain party’s responsibilities. For certain expenses or works to be a certain party’s responsibility there must be a provision in the contract as a direct indication or indirect denotation. In the absence of such factors the parties have to share the expenses in equal measure. CR # (517):- If the worker disregards some of the conditions and does not do certain works, the owner can force him to do his part; also he can revoke the contract, even if the time for the work not done is gone, the owner can

revoke the contract because of the disregard of a condition by the worker he, however, instead of revoking the contract cannot demand compensation for the work not done in addition to his share of produce according to a more clear and strong reason.

The Book of Irrigation (Musaqat)

492

CR # (518):- In the irrigation contract it is not necessary that worker himself do the job, if no such condition is set in the contract he can hire someone for some of his work or all of it and make the payment, and just as well he can set a condition for owner to pay for some of the work. CR # (519):- If a garden for the irrigation of which a contract is made contains various trees such as Palm trees, Apples and Grapes etc., it is not necessary to exactly know how many of each kind of trees are there in actual details but a general knowledge which removes deceitful losses is enough or even if it may not do so still such general idea is enough. CR # (520):- In the above case it does not matter whether the shares are taken out of the whole produce like half of the whole for owner and half for the worker or different ratios out of different kinds of fruits like half out of grapes and one third out of apples and one fourth out of dates.

CR # (521):- The irrigation contract, it is said, can also be valid if the shares because of certain conditions are assigned to be of different quantities like one half of the trees are watered from a well and one third watered from brooks or river and this much of uncertainty does not affect the validity of contract, but according to a more clear reason it is not valid as mentioned in the rules of renting. CR # (522):- If some fruits are destroyed; would there be a reduction proportionate to the ratio of destroyed fruits in the amount of gold or silver that the parties may have agreed to be for one of the parties in addition to his _ specified share of fruits or not, there are two views about it according to a strong view there would be no reduction.

CR # (523):- If in accordance with certain legal ( shar’i ) means it is discovered that the roots of fruit plants were usurped, the contract is valid only if the owner approves it, otherwise, it is void and the whole produce belongs to owner and the worker receives the fair market value payment to be paid by the usurper. CR # (524):- If the discovery in the above rule is made only after the fruits are divided and consumed, the owner demands &om the usurper only for compensation or ask both parties of the contract to pay each proportionate to his share but he cannot ask the worker for the whole amount of compensation. CR # (525):- Both parties of irrigation contract must pay Zakat if each one’s share is more or equal to the standard amount for which Zakat is payable, if

_

=a

od

has ciate

‘hia

ISLAMIC

LAWS

OF

CONTRACTS

493

the contract is made before Zakat becomes due, otherwise, only the owner

pays Zakat. CR # (526):- If a difference arises between the owner and worker about whether one party was supposed to do a certain job or not, the words of one who denies the existence of such condition is accepted. CR # (527):- If owner and worker differ about validity or invalidity of contract, the words of one who speaks of the validity of contract are accepted. CR # (528):- If the parties differ about the amount of share of the worker, the words of owner who denies larger amount are accepted, the same rule applies if the difference is about the time. If the dispute between the parties is about the whole amount of produce and the owner demands larger quantity, the words of worker are accepted not those of owner even if the worker is accused of deceit and theft or destroying the produce, or that destroying was because of neglect, unless, same is proved against him by shar’i standards, after that the worker was supposed to be trustworthy.

THE

BOOK

OF

JU’ALA

JU’ALA is a unilateral contract that requires a general offer like one’s saying "if any one fLxes my car he will get ’X’ amount of money, n or an offer to a specified person, like if you service my car you will get ’X’ amount of money. No acceptance is required because it 1s not a bilateral contract like irrigation contract or share-cropping etc. An offer as JU’ALA is valid for all reasonable and lawful works. It is lawful if the job is not known and the same applies to payment, provided, it does not lead to dispute, like to say, "any one who finds my lost car he gets half of it etc." If the payment is totally unknown the offer is not valid like saying, "if any one finds my lost car he gets some thingn. In such case the worker receives fair market payment for his work. CR # (529):- If one volunteers for the work for which service is asked he is not entitled to any payment, regardless, there exists an offer for someone other than him or not. CR # (530):- Such offer could even be made by some one other than the owner like saying,nif any one repairs A’s car he will be paid ’X’ amount of money, and if some one does such a job the offer is binding.

The

Book

of Ju’ala

494

CR # (531):- In this unilateral contract payment becomes due as soon as service is delivered when delivery is required or at completion of work as the case may be. CR # (532):- JU’ALA as a unilateral contract or one-sided offer, is allowable from shar’i point of view. The person who offers such deal can cancel his offer before the work begins but can his cancelling the offer in the middle of work be effective is objectionable and if he did, there is no doubt that the worker is entitled to get paid for the work he has done.

CR # (533):- If one offers two different prices for the same job the one offered later is effective. If first offer is ’x’ minus ’b’ and the second offer is ’x’ plus ’b’ or vice verse, plusor minus do not make any difference. Always the second offer is effective, and if there is no indication for his changing his mind from the first to second, he is responsible for both offers and whatever is offered becomes payable. CR # (534):- If one makes an offer for a certain service to be done and several people render the service each a part of it, the amount of payment will be divided proportionate to everyone’s work. If every one renders the eae service fully and independently every one is entitled to the amount offered.

CR # (535):- If the offer says that for a certain amount of goods to be delivered to a place distant 10 miles an ’X’ amount of money will be paid and some one delivers it to a place S miles away, he receives a payment proportionate to the distance he has covered, provided, the owner does not object to such division.

CR # (536):- If the owner and worker dispute about whether there was an offer or not, job specification, the amount of payment and the efforts of worker in all cases the words of owner is accepted.

CR # (537):- If the owner and worker dispute about determining the offer, it _ is objectionable, according to a strong reason, if the dispute is about how many offers were made, the words of one who speaks of a lesser number are accepted, but if the dispute is about the essence of the offer, the words of one

who has made the offer is accepted in negating the claim of worker and it is necessary for the owner to make available, what he himself approves to be | for the worker.

ISLAMIC

LAWS

OF

CONTRACTS

495

CR # (538):- Life or property insurance is valid under the rules of exchanging valuables, provided, on the part of insuring party some reasonable valuable job is done like helping the insured with safety rules and programs etc. or arranging to watch the property and such other respectable works to fit the deal into the rules of exchanging valuables. In such case receiving money from both sides of the contract is lawful, otherwise, the contract is void and receiving money unlawful. However, if money is given to the insuring party as conditional gift, a condition that Bates the other party to also pay a certain amount of money such deal is lawful.

THE AND

BOOK OF SHARP-SHOOTING HORSE RACING CONTEST

CR # (539):- In both cases there must be an offer and an acceptance. Such contests are only valid with the use of arrows, spears, swords, camels, elephants, horses, mule and donkeys, and it is very possible that today’s arms could also be used for this kind of contest.

CR # (540):- It is lawful to pay the winner in substance or as payable credit and that such payments are made by the contestants or a third party or from public treasury. It is lawful to assign payment for the winner or referee but to assign it to referee is not a condition for the validity of contract. CR # (541):- It is necessary in such a contest to specify the directions which in case not known would cause dispute, thus, it is necessary to specify the distance, the objectives and the animals. And in case of sharp-shooting to determine the number and conditions of hitting the target, the distance, and objectives etc. CR # (542):- If the contestants after they each set aside ’X’ amount of money to be paid to the winner and include the referee and say whoever finishes first before us and the referee he will have both prizes and if anyone finishes before all three he will have both prizes and if both parties finish before others each of the contestants will only have what he has set aside for the winning party. If one of them and the referee finish first ,this one gets what he himself has set aside and half of what the other party has set aside and the rest goes to the referee.

ISLAMIC

LAWS

OF

CONTRACTS

496

CR # (543):- Referee is the one who enters between the two contestants and does not assign anything payable to anyone; he only lets his horse run in the middle of the two contestants or to one side of them. He is part of the terms of the contract that if he finishes first or with another party he gets paid one prize or some of the prize whatever the conditions are and if he did not finish first he does not pay anything. CR # (544):- If the contract becomes void the winner does not get paid anything.

BOOK

OF

PARTNERSHIP

CR # (545):- Partnership from the sharia point of view is an allowable contract. Any one of the party can revoke it and if one party revokes it, the other is not allowed to use the partnership property. Such contract is also revoked because of one party’s death, mental illness, bankruptcy or a court order stopping the owner from the use of his property. CR # (546):- Partnership is valid in dealing with properties not works and performances like contracting to have the wages received by each party as property commonly owned by both partners, if they did such contract it is void and each one is entitled to the amount of payment he has received. However, if the parties decide to have a compromising settlement about their work and wages they receive like when each would say, " half of my wages will be for half of my friend’s wages for a certain time," and the other party agrees and the parties share their work.

CR # (547):- If along with another binding contract the parties reach a compromising settlement requiring each party to pay half of his wages to the other party, such deal is valid and it is necessary to observe such condition. CR # (548):- A partnership is not valid if it is based on the fact that each buys certain goods in exchange for some loan payable later and then sells such goods and equally shares the benefits or losses of such deals. CR # (549):- A confused partnership is not valid like forming a contract that requires each party to share with the other party his income, regardless, of the source, income from trade, agriculture and inheritance etc., as well as

their losses.

[The Book

of Partnership

497

CR # (550):- In the kind of contract in rules 527 and 528 as mentioned every

one is responsible and entitled to and for their losses and profits. However, if

they agree on a settlement in a binding contract that if one party makes profit half of it will go to the other party and if one party suffers loss the other party compensates one half of it, such deal is valid.

CR # (551):- Partnership in a property comes into being when two people or more are entitled to the ownership of a piece of property as a substance, a loan owed by some one, legacy, property transferable to some one through a will or through their works like building or manufacturing etc., such means that comes out of free choice etc. Sometimes it is by means of mixing two properties in an undistinguishable manner when they are of the same kind or of different kinds like certain amount of grains or oils etc. CR # (552):- The partners are each responsible and entitled to and for the loss and benefits proportionate to the amount of their share equal or different as the case may be. CR # (553):- If equal sharing of losses or benefits is agreed upon when their shares of the capital are not equal or vice versa, such conditions are binding as long as they are reasonable.

CR # (554):- It is not lawful for any of the partners to use common property without the permission of the other, if one party is allowed for certain uses, it is not permissible for him to make other uses without the permission of the other party. However, making use of certain properties commonly owned is lawful even without other party permission when such use according to common practice does not require permission such as common drive-ways, paths and roadways. CR # (555):- If not using the property would lead to its destruction like perishable food items etc., and one party would not allow the use, the other party can refer the case to a shar’i authority for permission to use or sell etc., to avoid loss.

CR # (S56):- If one partner demands to divide the property if it may cause losses in the substance or value to the limit that common

sense does not

ignore, it is not necessary for the other party to agree to such demand, otherwise, it is necessary to divide or he is forced to divide.

CR # (557): - If two people own a house and they start to have difficulties and one party would not allow all kinds of uses and it would result in losses,

ISLAMIC

LAWS

OF

CONTRACTS

498

the other partner presents the case to shar’i authority for permission to use in more beneficial ways as he may see it. CR # (558):- If one party asks to sell a property that if divided would cause losses, so that the money received for it could be divided without loss, in such case it is necessary to agree to dividing the property or else he is forced to do so. CR # (559):- If one party in a binding contract sets a condition which requires not to divide for a certain time, it is not necessary to agree to dividing the property until the end of the time required by the contract.

CR # (560):- For properly dividing commonly owned goods it is enough to divide it in equal parts and then cast lots to determine every one’s share. Only consent of parties on whatever each party gets is not free from objection but optional precaution is against it.

CR # (561):- Dividing endowed property mixed with non-endowed one is valid, while dividing endowed property against certain conditions set by the founder is not valid, othervise, it is valid.

CR # (562):- A partner authorized to use partnership properties as being trustworthy is not held responsible for commonly owned property in his charge without neglect and trespassing. If he says that the property is destroyed his statement is accepted on oath. His statement is also accepted on oath when he is accused of neglect or trespassing which he denies.

PROFIT

SHARING

When a party gives some property to another to use as business capital and the profits are divided in halves or thirds etc. such a deal is called MUDARABAH. THE

FOLLOWING

MATTERS

MUST

EXIST

IN SUCH

DEALS:

(a) There must be an offer followed by acceptance of the other party, which can be formalized by means of words or deeds or some other indications; it is not necessary to use Arabic words or the past grammatical tense only.

The Book of Profit

Sharing (Mudarabah)

499

b) The parties must be mature, free from mental illnesses and free from ompulsion and duress. Freedom from being forbidden to use one’s property, yy a court order because of suffering from mental illness or bankruptcy is equired only on the part of the owner not the worker.

c) The owner must specify the capital because only saying that either one of wo property is the capital is not enough. Also the quantity of the capital nust be determined. The share of each paarty must be specified on the basis f certain ratios like halves, or one third etc., unless there is a common ractice which serves as specifying each party’s rights and responsibilities, in ase the contract is free from condition and limiting factor. d) Only the parties, the owner and the worker, must be the recipients of rofits, thus, it is not valid if a condition is set which requires them to give

ome of the profits to a third party. ¢) The worker must be able to do business in case personal work on his part ; required, thus, if he is not able to do business work the contract is void. ‘his is when personally working for the business on the part of the worker is . restrictively agreed-upon factor (qayd) in the contract, but if the equirement of working personally for the business is a condition, the artnership is valid but the owner has the right to annul the contract when a ondition is not observed. If the worker is not able to work with or without elp the deal is not valid. It does not matter, whether inability takes place at he start or later. Mudarabah is revoked whenever it takes place.

‘R # (563):- According to a strong reason partnership of this nature is valid ven in the case of the properties other than gold and silver currencies like ther currency notes etc. However, validity of such contract in the case of rofits is objectionable and in case of property as payable loan is not valid.

‘R # (564):- In Mudarabah it is not necessary for the worker to have the 10oney or property in his hand even if the owner has the money or property 1 his hand and the worker undertakes the business work, still the contract is alid.

R # (565):- The nature of the contract of Mudarabah requires sharing of 1e profits, thus, the owner and worker each gets the share assigned to him, if 9 some reason the contract becomes void the worker has to receive fair iarket value payment for his work and the profit belongs to owner. R # (566):- It is necessary for the agent or worker not to go beyond the mits set for him or the activities for which he is authorized, if he is told to

ISLAMIC

LAWS

OF

CONTRACTS

500

sell only at a certain place, or for a certain price or deal with certain kinds of goods, it is not lawful for him to do things without authority. If he did his deals will not be effective and it requires owners approval. CR # (567):- In Mudarabah it is not necessary for the property to be of specifically known qualitatively or quantitatively, even if it is unspecified, like if the owner presents two kinds of properties and says to the worker, I give one of these properties for a Mudarabah deal the contract is valid although it is a precautionary way that the property be specifically known in all of the above respects. CR # (568):- The worker is not responsible for any loss unless it is due to his neglect. If the owner sets a condition in the contract which says the loss must also be shared, apparently, such condition is void. However, if a condition requires the worker to pay the loss from his own pocket, if it may take place such condition is valid. CR # (569):- If a person may have some property with some one to be kept as safe deposit etc., and forms a contract of Mudarabah with him the contract is valid. CR # (570):- If one has in his possession what he has usurped or is simply another one’s property in a manner that makes him responsible for it and with such property he forms a Mudarabah contract with the real owner, does this relieve him of the responsibility of having the property in his possession or not? There are two views about it the first view is more strong because the contract of Mudarabah basically does not require the owner to agree to the

other party’s having the property in his possession as it was mentioned earlier that it is not necessary for the validity of the contract that the executive manager have the property in his possession although, forming a contract with the owner itself is an indication, according to common practice of the owner’s consent to manager’s having the property in his possession and using it. However, if there is no indication of the owner’s consent the party is not relieved of his responsibility.

CR # (571):- A Mudarabah contract from the Sharia point of view, is allowable

not binding, thus, it is lawful for both parties to revoke

it,

regardless, its before the start of work or after, before making any profits or after, whether the contract is unlimited or has certain time limitations.

CR # (572):- The worker, the manager - or call him the director - is not permitted to mix the capital with other property belonging to him or others without the permission of the owner (principal) in a general or specified way,

The Book of Profit Sharing (Mudarabah)

501

if he does mix without his permission he is held responsible for what may get destroyed in his possession out of that property, but this does not affect the validity of Mudarabah and profits belong to the parties according to the proportion stated in the contract. CR # (573):- In case, the Mudarabah contract is absolute and free from all restrictions and conditions the workers or director can use the money or property the way he considers proper in terms of buyers, sellers and the kinds of goods, however, he cannot travel with it without the permission of the owner, unless there is a common practice that helps unrestricted and absolute contract to cover such situation, otherwise, he is responsible for the loss in the case of travelling. And the same rule applies to all uses and works out of the limits of the contract. CR # (574):- In case, the contract is absolute and free of conditions, it is lawful to buy for cash or payable later on if the latter case is commonly practiced in the market that could be covered by the absolute nature of the contract, but if there is no such practice, it is not lawful without proper permission. CR # (575):- If the agent sells some thing without the permission of the owner and the payment is agreed to be made later on, if such payment is received before the owner learns all about it, it will not be a problem but if the owner learns about it before payment is received, if he approves it, the deal is valid, if not it is void.

CR # (576):- The absolute nature of the contract does not require one to sell

the properties for cash, in fact, it is lawful to sell one kind of goods for another kind of goods, but if it is a kind that no one wants, in such a case, it is not lawful to sell certain kind of goods for such undesirable kind, because the absolute nature of the contract does not

CR # (577):- The agent must do all that he is required, thus, he manages and works if it is fit for him, employs and hires all that is needed for the business as attorneys, brokers and common workers. Thus, if he hires someone for a work that according to common practice one himself must do, the payment for such work must also be paid out of his pocket not from the property commonly owned. On the other hand if he does himself and according to common practice is done by the employees, it is lawful for him to have such payable amounts for himself, if he has not done it for free.

CR # (578):- The travel expenses of the agent, like food, accommodation, clothes, transportation etc., is paid from the capital, if the journey is with the

ISLAMIC

LAWS

OF

CONTRACTS

502

permission of owner, and no condition requires the worker to pay. And the same rule applies to whatever is spent to help the business, however, spending unrelated to business is paid by the agent. The limit of expenses is calculated with a view to the agent’s standard of living conditions; if he spends extra it is deducted from his accounts, however, if he cuts his normal expenses or is a guest of some one else, such cuts are not counted for him. CR # (579):- If one works for two or more principals, or works for himself and others, the expense will be shared on the basis of the sizes of work according to clear reason not proportionate to the size of the capitals. CR # (580):- The payability of the expenses of the worker does not depend upon profit-making, he is paid from the capital, however, if profits are made afterwards, the expenses will be paid thereby and owner’s whole capital is returned to him and then the profits are divided among the parties. CR # (581):- If the agent becomes ill on a journey if this does not prevent him from work he gets paid for his expenses, but he cannot get medical expenses; if the illness prevents him from work he can not receive any thing for his expenses.

CR # (582):- If the agent on a journey revokes the contract or the contract is revoked, he bears his expenses when coming home. CR # (583):- If the principal and agent dispute, on matters like, that the contract is void or that it was a loan and there is no proof in favor of any of the parties; the dispute can take place because the agent claims it to be a loan so that he can have the profits and the principal claims it to be a Mudarahah so that he would pay nothing but the fair market value payment for his work, in such case, the principal is required to take an oath after which the profits are given to him and fair market wages to the agent or the director etc.. Sometimes it is because the owner or the principal claims it to be a loan so that he would not be liable for the losses and he would not be held responsible for any thing towards the agent and the worker or agent, claims it to be an invalid Mudarabah so that after oath-taking the owner is held responsible for the losses, and no responsibility on the part of the worker. This is when the dispute is either because it was a void Mudarabah or it was loan, but if their dispute is because it was a void Mudarabah, profit goes to owner after his taking oath and the worker does not deserve any fair market value payment for his work.

CR # (584):- It is lawful in Mudarabah to have one owner and several agents, regardless, of the capital being one or several or that all the agents have

The Book of Profit

Sharing (Mudarabah)

503

equal or different tasks. In the same way there can be several owners and one worker. CR # (585):- If the capital belongs to two people who loan one party and agree to give him one half and set a condition requiring to pay, despite the capital being equally owned, more profit to one and less to the other or pay equal profits while the capital is not equally owned, apparently, such Mudarabah is void if the extra payment to one party is not in exchange for some work. However, if such differences are settled on the basis of the amount of payment each one is making to the worker like ’A’ gets more profit and pays more to worker and ’B’ gets less profit and pays less to worker etc., and thus, all parties end up with responsibilities and benefits, the Mudarabah contract is valid. CR # (586):- Mudarabah becomes void because of the death of both parties; in the case of the owner it is void because the property goes to heirs and leaving in the possession of worker requires a new Mudarabah, and in the a of the death of the worker it is void because permission is limited with m.

~CR # (587):- The agent is not allowed to appoint his own agent for the work he is required to do or hire some one without the permission of owner as well as forming a new Mudarabah contract with someone without owner’s permission and if he does so and the property is destroyed, he is held responsible for it. However, he may hire or appoint some one for some preliminary tasks to the limits permissible according to common practice and the generality of the meaning of the contract. CR # (588):- It is lawful for both the owner and agent to set a condition during forming the contract that requires one of them to pay or do some thing to or for the other party besides the normal procedures of the contract like agreeing on some other contract appointing an agent or giving some loan etc., and it is necessary to meet such condition, regardless, any profit is made in Mudarabah or not or that making no profit is because of some obstacles or that the agent has stopped the work. CR # (589):- The Mudarabah contract requires that the agent becomes owner of his share from the time any profit is made and it does not depend on dividing of profits. However, if after such time any losses take place they are compensated from the profit until his - worker’s - net profit is determined. For a final ownership, is one required to divide the whole profit alone without revoking the contract? There are two views about it,

ISLAMIC

LAWS

OF

CONTRACTS

504

apparently, dividing profits is enough because it is practically revoking. Thus, property’s getting destroyed after dividing is not compensated from profits. CR # (590):- When profit is made and it is saved and one of them asks to divide it if the other party agrees the matter is settled if not and if he is the worker ,apparently, he can force him to divide but not vice versa. CR # (591):- If after dividing the loss some profit is made and if profits are more than or equal to the losses, it will be paid out of the profits but if such profits are less than the losses, it is necessary for the worker or the agent to pay whichever of his share of loss or profit is less. CR # (592):- If the worker sells or gives to someone as gift his share of the profit and then some loss takes place in the capital of Mudharabah, it is necessary for the worker to pay whichever amount of the price of the profit and loss is less. A loss that takes place on a date later does not retrospectively Se the contract of sale or gift etc., in fact, it is as if a loss has taken place. CR # (593):- It does not matter in paying off the loss out of the profit whether such loss may have taken place before or after the profits as long as the contract stands valid, in fact, apparently, paying the loss out of profits is proper even if the loss takes place during the journey for the business or even at home before the journey starts. This is about partial loss but if the whole property of Mudharabah is lost before trading starts, apparently, it causes the contract to become void. Also this is about a loss caused by some heavenly reason but if the loss is because of the worker or a third party not associated with business, the contract stands valid if the person causing the loss pays for it.

CR # (594):- Revoking the Mudharabah contract or its getting void, sometimes takes place before the start of businesses or after it before any profit is made, in both cases the owner owes nothing or demand anything and the same is true of the worker, regardless, it is because of worker or owner. CR # (595):- If revoking the contract is caused from the side of the worker after the start of journey for business with the permission of the owner and has already spent some money from the capital for his expenses, it precautiously is required to achieve owner’s consent.

CR # (596):- If revocation of the contract or its getting void takes place after some profit is made if both parties agree to divide the profits the matter is settled, otherwise, the disagreeing party is forced to do so.

The Book of Profit

Sharing (Mudarabah)

505

CR # (597):- If there is some credit for the property of Mudharabah, is it necessary or not for the worker to get them back after the contract is revoked or is made void, there are two views; the necessity of getting them back if not based on a strong reason is certainly based on a precaution. CR # (598):- After revoking the contract all the worker has to do is to make the property available to the owner, but delivery to him is not necessary unless the property is taken to another place, in such a case, apparently, delivery to owner’s place is necessary. CR # (599):- If dispute takes place between the owner and the worker about the quantity of the capital given to worker, the owner claims it to be a greater amount while the worker denies it, the words of the worker are accepted on oath, if the owner has no qualified testimony against it,regardless, the capital property is existing or is lost with the worker being responsible for it.

CR # (600):- If there is a dispute between the parties about the amount of the share of the worker, and the owner claims it to be a lesser quantity while the party claims it to be a larger quantity, the words of the owner are accepted. CR # (601):- If the owner accuses the worker of dishonesty and negligence the words of worker are accepted.

CR # (602):- If the owner claims that there was a condition in the contract that required the worker to buy only certain goods, or not to buy from certain party etc., and the worker denies it, the words of the owner are accepted because the doubt is traced back to whether the owner authorized to do or not; the principal says, ’no’.

CR # (603):- If the worker claims that the property is destroyed and the owner denies it the words of the worker are accepted, the same rule applies if the worker claims that certain loss has taken place or no profit is made; that certain credit is not received, supposing that he was authorized to deal with certain bargains of loan.

CR # (604):- In the above cases wherein the words of the worker are accepted it does not matter whether the claims are made before or after revoking the Mudharaba contract, in fact, apparently, his words are accepted even if after revocation of contract he claims the property was destroyed after revoking the contract.

ISLAMIC

LAWS

OF

CONTRACTS

506

CR # (605):- If the worker dies when he had the capital of Mudharabah in his possession, if the substance of such property is known the matter is settled if it is known that the property exists in the legacy but if it can not be distinguished, the owner receives an amount equal to his property from the legacy and he will not share a certain ratio with the heirs, according to a more clear and strong reason. CR # (606):- If the capital belongs to two people as partners and they form a Mudharabah contract with another party and only one of the partners cancels the contract, apparently, the Mudharabah contract proportionate to the share of the other partner stands valid. CR # (607):- If the worker takes charge of the capital for Mudharabah and does not use it in business for a little or long time the owner cannot demand anything more than the capital, although the worker has committed an offense for keeping someone’s property idle. CR # (608):- If in the contract the worker sets a condition requiring that the losses must not be paid out of the profits, regardless, such losses take place before or after making profits, apparently, such condition is valid.

THE BOOK (WADIA)

OF

DEPOSITS

Depositing with someone is an allowable contract and it is an indication of trust for security.

CR # (609):- It is necessary for the custodian of deposit to safe-guard the deposit according to the usual procedures, if the depositor specifies a certain manner of safe-guarding it must be carried on, if it is opposed the custodian is responsible, unless, it was opposed because of fear for security and the depositor has not made any mention of what to do when afraid, otherwise,

custodian is responsible, according to a necessary Ihtiyat, even if there is fear about the safety of property. CR # (610):- The custodian of deposit is responsible for the deposit if he uses the deposit in some way against the trust and safe-guarding idea and 1s called dishonesty and trespassing like mixing it with his property in an

The Book of Deposits

(Wadi’ah)

507

indistinguishable way, or the deposit is given to him in a sealed envelop and he opens it or the deposit is some food, i.e., and he consumes it or it is some money and he takes some of it as loan.

CR # (611):- If two sealed envelops are deposited and the custodian of deposit uses one of them he is responsible for only that used . CR # (612):- If using is not called dishonesty and treachery like if he writes something on the envelop or draws a picture etc.,such use does not make him responsible for the deposit even though such uses are not lawful because of not being authorized for it. CR # (613):- It is necessary for the custodian of deposit to feed the animal which is left with him to be watched, and for any expenses he asks the owner. CR # (614):- The custodian of deposit becomes responsible for the deposit because of his shortcoming about it and he remains responsible until he returns it to owner or asks the owner to relieve him from his responsibility. CR # (615):- It is necessary for the custodian of deposit to swear to an oppressor to hide the depositif possible, if he confesses to the oppressor he becomes responsible for the deposit. CR # (616):- It is necessary for the custodian to return the deposit to the depositor or his heirs after his death even if he is non-Muslim, except when the depositor is a usurper, in which case it must not be given to him; it is necessary to return to the legitimate owner, and if it is returned to the depositor the deposit-keeper becomes responsible, if the owner is not known the case must be advertised to find the owner; if the owner is not found it is given as charity on behalf of the owner if the owner is found and he does not accept it,apparently, the deposit-keeper is not responsible, if the usurper forcibly takes it from him the deposit-keeper is not responsible for it. CR # (617):- If a non-Muslim, who is in a state of war with Muslims, deposits some property with him, according to precautionary view, it 1s unlawful to be dishonest to the trust, the deposit-keeper cannot own or sell it.

CR # (618):- When a dispute arises between the parties about neglect and shortcoming and the value of the deposit, the words of the depositkeeper are accepted on oath and the same rule applies if the dispute is about the deposit getting destroyed, provided, the deposit custodian is not accused of dishonesty.

ISLAMIC

LAWS

OF

CONTRACTS

508

CR # (619):- If the dispute is about the return of the deposit, apparently, the words of the owner are accepted on oath, the same rule applies if their dispute is about whether it is a loan or deposit when it is destroyed. CR # (620):- It is not right to deposit with a child or a person suffering from mental illness if he cannot discern right from wrong, he is not responsible for the deposit even if he causes it to be destroyed and the same rule applies to the insane person. CR # (621):- If the deposit keeper is a child who can discern right from wrong he becomes responsible for the deposit if he causes it to get destroyed but he is not responsible just because of taking charge of the deposit, especially, when it is with the permission of the guardian. Whether he becomes responsible because of shortcoming and neglect is objectionable, apparently, he is responsible.

THE BOOK C?ARIYAH)

OF ,

BORROWING

Borrowing in this context means borrowing some property with permission to use it free of charges. CR # (622):- It is valid to borrow the substance of an owned property that could be used beneficially and its substance is preserved. It is lawful to borrow a property in order to own its profits but not its substance.

CR # (623):- The borrower benefits from the property according to the reasonable common practice and it is not lawful to use it beyond allowable limits, otherwise, he is held responsible but not on the contrary, except if a condition is set that requires him to be responsible or the substance is gold or silver, even not in a currency form according to a weak objection, but if a condition requires the party not to hold the borrower responsible in gold or silver such condition will be valid. CR # (624):- If the substance of the property borrowed is reduced because of permitted use, the borrower is not responsible. If one borrows from a usurper he is held responsible and if he is ignorant of the case and if he suffered losses because of deceit on the part of usurper he demands for his loss from him,

SLAMIC

LAWS

OF

CONTRACTS

509

*R # (625):- If one is given permission only to use it for a certain benefit the yeneficiary must not use it otherwise, even if other uses are commonly racticed. *R # (626):- It is valid to borrow some property to be used in a mortgage leal the owner can demand the release of the property after the mortgage erm, in fact, it is said even before the end of mortgage term he can demand

ind the mortgage is not affected.

SR # (627):- If the mortgaged property is not released it is lawful to sell it to ecover the loan against it and if such property is borrowed the borrower yecomes responsible for the price of the property to the owner, unless it is old for less than fair market value. Is the borrower responsible for the ubstance of the property if it is destroyed before it is released from a nortgage deal? it is objectionable, apparently, he is not responsible unless a ondition requires him to be responsible.

THE BOOK (LUQATAH)

OF FOUNDLING

‘oundling is a property which is not in the possession of any one, its owner is .0t known.

oR # (628):- Something lost is either: (a) A human being. (b) An animal or, c) Other property. (a) Is called foundling (b) Is called wandering (c) Is alled foundling in a particular sense.

SR # (631):- Keeping a foundling is the responsibility of all responsible eople, if keeping him is the only means for his safety, the keeper in this case, s more rightful for his custody and upbringing than others, unless there is the oundling’s guardian because of blocd relation or some other reason, in vhich case it is necessary to handover the foundling to him and the rules of a oundling do not apply to him any more. >R # (632):- Whatever property is found with a foundling is considered as is property.

SR # (629):- The foundling found in Islamic or non-Islamic lands wherein here

also

are

Muslims

or

non-Muslims,

who

pay

taxes

to Muslim

The Book of Foundling

(Luqatah)

510

government, which provides a possibility that the child could be their child, such child is considered a Muslim and his heir is the Imam if he does not have any heirs, the Imam also acts as his clansman in the case of blood money payment.

CR # (633):- The person who can keep a foundling child must be mature, of sound reason and free; people otherwise can not keep a foundling without the permission of their guardians. They must also be Muslims if the foundling is considered a Muslim.

CR # (634):- If there is a volunteer to donate for the expenses of the foundling the matter is settled; otherwise, if his own property, if any, can be spent for him after authorization by the authorities in Sharia or his agent; if not the finder spends for him and later asks him for payment if it was not donated to him, otherwise, he cannot demand.

CR # (635):- It is detestable to keep a wandering and lost animal even if there is fear that the animal may get destroyed.

CR # (636):- If the animal is found in an unpopulated place like jungles, forests, hills and valleys etc., and away from population if the animal can protect itself, because it is large,fast in running or strong it is not lawful to keep it, regardless, there is food for it or not, if the animal is healthy and able to find food. If the finder keeps it he has committed a sin and is responsible for it and it is necessary for him to feed it and it is not lawful for him to ask the owner for the expenses. If he gets some benefits like milk or wool etc, he is responsible for its price or its kind to owner. If he rides it or loads it, he must pay rent and he is not relieved of such responsibilities until he returns it to owner. However, if there is no hope for being able to return it to owner or find him; by the permission of an authority in Sharia he gives it in charity on behalf of the owner. CR # (637) If the animal cannot protect itself from dangers, it is lawful to keep as in the case of lambs and calves etc. If one keeps such animal he must advertise where it was found should also be advertised in the near by places where it was found according to a precautionary rule. If the owner is not found, it is-lawful for him to own it and use for food or selling ete. According to the popular view he is responsible for it but, apparently, it depends whether or not the owner demands for it, if the owner shows up and asks for it, it is necessary to give it to him, the finder can also keep it until the owner is found and there is no responsibility for him in this case.

ISLAMIC

LAWS

OF

CONTRACTS

S511

CR # (638):- If the owner leaves his animal on the road, if he has abandoned it, any one can own it like the things originally allowable to be owned by any one and there is no responsibility in keeping them. If the animal is left because it is tired or for other reasons, if the place where it is left is such that the animal cannot survive therein or due to lack of food and water and the animal is not able to find any food, it is lawful for any one to keep and own it. If the animal can survive on its own it is not lawful to keep; any one who keeps it is responsible for it, the same rule applies if it was tired and he wanted to come back before the coming of danger. CR # (639):- If the animal is found in a populated place where the animal is safe, it is not lawful to keep such animal and any one who keeps it is responsible and it is necessary to advertise it, it remains in his custody on his responsibility until he returns it to the owner and if he does not find the owner he then gives it in charity by the permission of Sharia authority on behalf of the owner. However, if the animal would not be safe, because of surroundings,it is possible to deal with it as if found in a jungle; by owning it after advertising or be responsible for it as mentioned before.

CR # (640):- If a chicken or a lamb enters someone’s home it is not lawful to keep it and it is lawful to send it away and there is nothing against him, if he had kept it applying the rules of wandering animal to it is objectionable, it is a precautionary rule to advertise it until one loses all hope of finding the owner, then gives it in charity on behalf of the owner, and it is not far from reality that he is not responsible to the owner even if he shows up later on. CR # (641):- If the wandering animal needs expenses, if some one donates for it the matter is settled if not he spends for it and then asks the owner for what he has spent.

CR # (642):- If the wandering animal can provide some benefits the keeper can use them for what he has spent for it but it is necessary to keep the account according to prices, due to a strong reason.

CR # (643):- Properties other than animals if lost or the owner is not known such property is called foundling or property found. It is lawful to take it but is detestable, regardless, it is found in the sacred place (around Makka calied Haram ) or somewhere else, although, the detestability of taking such property from the sacred place is more strong and emphatic.

CR # (644):- If a ship breaks apart in the sea whatever of belongings are taken out belongs to owner but things taken through diving belong to the diver if the owner has abandoned them.

The Book of Foundling (Luqatah)

512

CR # (645):- If the value of something found is less then a Dirham it is permissible to take and own it soon after taking; there is no need to advertise it in order to find the owner or search for him, then if the owner comes,if the

substance is still available it must be returned to owner if it is not available it does not need any replacement. CR # (646):- If the value of what is found is equal to a Dirham or more it is necessary for the finder to advertise to find the owner. If the owner is not found, if it is found in the sacred place (in Makka), according to a precautionary CR #, it should be given in charity on behalf of the owner, and he cannot own it,if it is found somewhere other than the sacred place in Makka, he has three choices, (a) own it with responsibility (b) give it in charity on behalf of the owner with responsibility for it also, (c) keep it as trust in his possession without responsibility. CR # (647):- The price and value is based on the value of the property at time and place it was found, not other places or times. CR # (648):- A Dirham is little more than half of mithqal of sayrafi, ten Dirhams are equal to 5 1/4 of Mithqal.

CR # (649):- If it is not possible to advertise to find the owner either because it has no marks or is an unmarked piece of manufactured product or the owner has left the place to far-away places difficult to reach or that the finder is afraid of being accused if advertises etc., he does not have to advertise. According to a precautionary rule, it should be given in charity on behalf of the owner, but owning of such property is not free from objection, although apparently, owning is lawful if it has no marks on it.

CR # (650):- It is necessary to advertise quickly after finding upto one year continuously, if he did not do it, he has done an offense, but still it is

necessary to advertise and it must be done quickly until find the owner. The same rule applies if one quickly after six months upto the end of the year. When completed one has the choice to keep for the owner or his behalf

there is no hope to advertises but stops advertising time is give it in charity on

CR # (651):- If the finder does not quickly advertise because of some obstacles or discontinues for the same reason upto the end of the year, as mentioned before, one has the choice to give it in charity on behalf of the owner or keep it for him except that the finder has not sinned.

ISLAMIC

LAWS

OF

CONTRACTS

513

CR # (652):- It is not necessary for the finder to himself advertise, he can have an agent for it with or without payment according to a strong reason, the finder must pay for advertising not the owner even if taking what is found is to keep it for the owner. CR # (653):- If he has advertised for a year, as said before, he can either give it in charity on his ( owner’s ) behalf etc., and losing hope of finding the owner is not a condition to have those choices. CR # (654):- If the finder knows that if he advertises more than a year the owner is found, according to precautionary rule, if not a strong reason he should necessarily advertise, and it is not lawful to own or give it in charity.

CR # (655):- If what is found is perishable like vegetables etc. It is lawful for the finder to price it for himself and use it as he may choose and the money for it remains payable on him. It is also lawful to sell it to others and keep the money for the owner, due to a precautionary rule he should sell it by the permission of the Sharia authorities and according to a precautionary rule he should advertise for one year, in fact, he must record its description and

advertise according to precautionary rule for a year if the owner is found the money must be given to him or the amount payable, if he is not found it is not far from reality that the finder may have either one of the choices mentioned before. CR # (656):- If the finder loses what he had found and another person finds — it, he must advertise for a year if owner is found it must be given to him if he is not found but the first finder is found it is lawful to give it to him if one can trust him that he will do his duty and this other completes the advertising even by adding the advertising already done and if the owner is not found one of the choices mentioned before is adopted like giving in charity on behalf of owner etc.

CR # (657):- As mentioned it is necessary to continue advertising for a year, some scholars have said continuation can take place when one would not forget the first ad., it also is ascribed to popular view which says that it is necessary to advertise in the first week. Once every day and once a week in the first month and for the rest of months once every month. Both views are objectionable it is necessary to follow common practice, it is not far from reality if an ad. is put once every three days. CR # (658):- One must advertise where it was found, at other places it is not enough.

The Book of Foundling

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CR # (659):- If the property is found in the market place on the road, or other such places, the ad. must also be placed on such places wherever it is likely for the owner to be found. CR # (660):- If it is found in unpopulated places, if anybody comes there according to precautionary rule, the ad. should be placed in the nearby places where there is possibility for the owner to be found. CR # (661):- If one finds it on a journey he can travel and find some one trustworthy to advertise and it is not lawful to take it home. CR # (662):- If it is found at one’s resting place on a journey, he can take it with him on the journey and advertise in the area of his journey. CR # (663):- If one finds it in his town he can travel and find trustworthy person to advertise on his behalf. CR # (664):- The wordings of ad. does not need to be clear and informative describing the found property, thus, it is enough to say," if some one has lost something or property. One may mention the kind like gold or silver or pots or cloth but somewhat the ad. must be left unclear and the property must not be exactly described.

CR # (665):- If some money is found, if it is possible to find the owner for certain indications like the amount or number, certain time or place, it is necessary to put an ad. and it is not of the unmarked kind that cannot be advertised. CR # (666):- If the finder is a child or insane, it is less than a Dirham the guardian can decide to own for them if it is equal to a Dirham, if more he can put an ad. for it for a year after which there comes the term for the choices mentioned before. CR # (667):- If one decides to own what he has found after putting the required ad., then comes to know the owner if the substance is still available it is given to owner the owner cannot demand for replacement if it is destroyed or transferred to some one through, sale, settlement or gift etc. The owner gets replacement in kind or price based on whatever kind it is. CR # (668):- If he gives as charity on behalf of owner and then finds the owner he gives him in kind or pays what it was worth for, he cannot reclaim the substance if it is available nor can he get it back from the charity recipient; the substance for its kind or payment for it if the substance is not

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available. This is when the owner does not agree to charity, gets the reward for charity and does not ask any one for it. CR # (669):- The property found is a safe deposit in the hands of the finder, he is not responsible for it unless, there is neglect or trespassing against it, regardless, of the time of one year and beyond it, if one assumes ownership or gives in charity he is responsible for it as mentioned before.

CR # (670):- According to well known views if the finder gives it to a sharia authority he does not have to put any ad. but it is objectionable. Also it is objectionable if the sharia authority accepts as considering it necessary. CR # (671):- If there is testimony that.a certain person is the owner it is necessary to give it to him and putting ad. is not necessary, regardless, it happens before doing any ad. during such time or afterwards before deciding to own it or afterwards. If it happens after deciding to own it as mentioned if the substance is available with him he must give it to the owner if it is destroyed or something likewise has happened it is replaced and the same rule applies if it is given in charity and the owner does not approve it.

CR # (672):- If the property found is destroyed before the ad, if no one is responsible for it due to not being neglected etc., putting ad is not necessary but if he is responsible the ad. must be carried on. The same rule applies if it is destroyed during ad. in the first case no ad is needed, in the second case ad. must continue and if the owner is found the property must be given to him or he must be paid for it. CR # (673):- If some one claims to be the owner and if one knows that he tells the truth the property must be given to him;the same rule applies if he gives full description and is satisfactory for his truthfulness, only description is not enough even if the chances of being true are between 51% and 99% it also is not enough.

CR # (674):- When the owner is known and the property found has given some profits that cannot be separated the substance and profit must be given to him, regardless, if the growth took place before or after deciding to own it. CR # (675):- If the property found gives some profit which is separable if it has taken place before the finder’s deciding to own the profit goes to owner, if it is after such decision it goes to finder.

CR # (676):- If owner is not found and the property gives profits; if the profit is not separable, it goes to the finder after his deciding to own it, if it is

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separable, to own it is not free from objection, according to a precautionary CR #, the profit should be given in charity. CR # (677):- If the owner is found but it is not possible to deliver the property to him or his agent if it is possible to get his permission to use it like using for charity or giving to his relatives etc., it settles the problem, if not it is given in charity on behalf of the owner. CR # (678):- If the finder dies and if it happens after the ad. and the decision to own it, it goes to his heirs as part of the legacy, if it happens after ad. and before the decision to own, according to well known view the heirs decide to go with one of the three or two choices see (656). If it is before or during ad. the heirs do the ad. until it is complete, then the heirs have the choice of going with one of the three or two choices mentioned before. According to a precautionary rule the rules of the properties of unknown owner should be applied in putting up ad. until there is no hope to find the owner and then it is given in charity on his behalf. When some property is found in one’s own box and does not know whether it is his or someone else’s, if no one enters his hand in the box it is his, otherwise, he gives an ad. if the owner is found it is given to him, if he refuses, it is his and if he does not know, it is not far from reality to decide by casting lot, like the other cases when a property becomes indistinguishable between two owners. This is when the other person is one out of a limited number, otherwise,it is not far from reality to cast lot and if it comes in the name of others, he searches for owner and when no hope is left.to find him it

is given in charity for him. CR # (681):- If one finds some property whether it belongs to him or someone come to the house or has come but less like public places, it will be dealt with as

in his own house and does not know else, if no one else besides him has often it is his if often people come in property found.

CR # (682):- If one’s gown or shoes are changed with another person’s gown or shoes if he knows that the other person has done it knowingly, he can take it as replacement as MUQASAH if it is worth more than his shoes he must pay the difference in charity for the owner if it cannot be given to the owner. If he does not know; whether the other person did it knowingly, if he knows that the other person agrees for using it he can do so, otherwise, he deals with it like a property of unknown owner; he searches for owner and when no hope is left to find him, taking it as replacement is objectionable, according to a precautionary rule, it should be given in charity on behalf of the owner with the permission of Shari’a authority, and according to a more

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precautionary rule, it should be taken as replacement for his own property and then given in charity for owner, all by the permission of the high authority in sharia.

BOOK ON PROPERTY

USURPED

(GHASB)

Usurping and taking other’s property by force is not lawful. It can take place by taking other’s property unjustly. If it is real property the usurping person alone is responsible for the whole property. If one forcibly starts living in a house with owner, he is responsible for half if it is used in equal proportions, or different ratios he is responsible for as much as he uses. The usurper is also responsible for the benefits he gets from the property; he also is responsible for it being destroyed in his hands. If a load carrier usurps the load he carries, he is responsible for it. CR # (683):- If the owner forbids one from holding an unguarded animal of his, and it runs away or forbids from sitting on a chair and it is stolen the other person is not responsible, as long as he is not considered the cause for the loss, otherwise, he is.

:

CR # (684):- If one usurps some property from a usurper, the owner may demand either one for his property, if he demands it from the first usurper he demands it from the second usurper but if the owner demands the second usurper he does not demand any one.

CR # (685):- If one keeps and controls another free person and he is destroyed while with him, he is not responsible for the loss even if he is a child unless he has caused the destruction. CR # (686):- If one prevents another person from work he is not responsible for anything to him, unless he has contracted to work for someone, in which case, the intruder is responsible to the employer. If he is working for the intruder the latter must pay worker’s wages. CR # (687):- If one releases a horse from his reins and the horse causes damage he is responsible for it, the same rule applies to all animals that can cause damages to other animals or human beings the owner of such animals

is liable for the harm they may cause if it is because of owner’s neglect like

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letting them harnessed.

roam

(Ghasb)

free when

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Property such animals

are supposed

to be kept

CR # (688):- If a wall falls on a human being or an animal etc. The owner of the wall is liable if he knew it was about to fall but did not repair, or demolish it to make it safe. The same rule applies if such wall is on a public road and it falls on some one. The liability in both cases comes only when the person harmed does not know about the situation if a person who is seeing the crumbling wall and leans against it or ties the animal near such wall as a result the person or the animal is harmed the owner of wall is not held liable for anything. CR # (689):- Liability for the harm caused to a human being is a personal responsibility payable from his property not by his "AQILAH, the Clan (literally meaning the clan’s commitment by unwritten law of the bedouins to pay the blood wit for crimes of its members.) Islamically meaning male members of blood relatives from the father’s side.

CR # (690):- If one opens a door and some one else steals the property therein, the thief is responsible. CR # (691):- If one lights a fire that can spread to other properties in the surroundings, and it does spread he is liable for it but if it usually does not ,spread and accidentally it did because of wind etc., he is not liable for it. CR # (692):- A Muslim becomes liable for the cost of the wine and the pigs of a non-Muslim tax-payer, provided, they keep such things away from public eyes and also to Muslims for such things due their right of having control over such things, if they keep them for good reason.

CR # (693):- It is obligatory to return the usurped property. If it is damaged one is liable for compensation, if it is not possible to return the property one is liable for it in kind or for its price of the day of usurping if it does not have any kind. According to an optional precautionary rule the highest price between the day of usurping the and the present day market price should given. CR # (694):- If it is not the season to find the kind of a property one, in such _ case, is liable for its cost of the day of payment. CR # (695):- If the market price of the property rises and then goes down one is not liable for such changes, if a quality is added and then it is gone he

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must return the property plus the price of the added quality. If an added quality is of no value there is no liability. CR # (696):- If an increase takes place in the substance or value of the property, the increase belongs to owner even if such increase is due to usurper’s deeds. If the increase belongs to usurper, like if he plants trees on a usurped land he returns the land and compensates for the loss, if there is loss in the substance, and he cannot demand compensation for loss in the substance belonging to him.

CR # (697):- If the usurped property is mixed with some substance of its kind, if both are of the same quantity the owner shares him equally if there is difference in quality, the owner shares in proportionate value, and the owner can ask the usurper for replacement. The same rule applies if it is mixed with a different kind and cannot be distinguished like vinegar mixed with honey etc. CR # (698):- If one buys something not knowing that it is usurped, he demands refund from the usurper and the loss he has paid to the owner, but if he knows about usurpation the buyer cannot ask for what he has paid to the owner to offset his losses. CR # (699):- If one usurps land and plants in it, the plantation belongs to him but he has to pay rent to owner; the words of usurper are accepted on oath about the amount of cost when testimony is not available.

CR # (700):- It is lawful for the owner to take his property from usurper even by means of using force, if safeguarding one’s right would only be possible through an unjust authority it still is lawful but he cannot charge the usurper for the expenses of proving his case. CR # (701):- If one owes another person some money who refuses to pay back he cannot charge such expenses against indebted party unless a condition demanding such expenses is set in a binding contract. CR # (702):- If one can get hold of some property of usurper, he can compensate from it for his losses, and he does not need to ask permission of high sharia authority and his doing this does not depend on whether a high authority in sharia can manage to get his property back or not.

CR # (703):- About the usurper’s property used to offset one’s losses, it does not matter it is of the kind of usurped property or not as well as its being as deposit in the trust of the owner of usurped property or other people.

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CR # (704):- If the property of usurper is more than he has usurped, one gets only what is equal to his property it is not far from reality to say lawful the selling of the whole and get his right from the sale but it is a precautionary rule to do so with the permission of a high authority in sharia and the rest should be given back to usurper.

CR # (705):- If the usurper is sworn by the owner and he has taken oath that he has not usurped other party’s property, it is not lawful for the owner to offset for his property from the usurper’s property.

BOOK BARREN

OF

REVIVING LAND

DEAD

AND

({HYA AL-MAWAT)

Barren means abandoned land which no one uses either because it is not needed because of some obstacle, like lack of water or floods, sands, stones or because it is marsh land etc.

.CR # (706):- Dead or barren lands are of two kinds: (a) Originally barren is the land about which no one knows whether there lived any people or it is known that there lived no one like most of forests, valleys, open fields and mountains etc. (b) Empty and unpopulated for some reason; because population is destroyed or it is abandoned.

CR # (707):- It is lawful for any one to revive and establish the land mentioned in (a), apparently, such person becomes the owner, regardless, he is a Muslim or a non-Muslim.

CR # (708):- The kind of lands mentioned in (b) are of several kinds: (1) The land which has no owner like the old abandoned and ruined lands, towns and villages and canals filled up and levelled, that belonged to nations of the past of whom no one is left nor even their names or traces, or such lands are called to have been of a people of whom nothing but their name is left.

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(2) The land which has become undeveloped for some reason after being developed, such lands become the property of those who revive them as such that is not harmful to others.

(3) The land which has a known owner. The land in (1) is like the ones in (a) and cannot be dealt with under the rules of the property of unknown owner. Could the land in (2) be revived and established, there are two views about it. such lands become the property of those who revive them as such that is not harmful to others. If it is known that the owner has abandoned it, it is lawful to revive and establish it without any one’s permission. In the case of the land in (3) if the

owner has abandoned, it is lawful for any one to revive it if he has not abandoned but has kept it unestablished to use it as grassland or he is waiting for the right time and tools etc, in such a case, there is no doubt that it is not lawful to revive and establish such lands without the permission of the owner. But if it is known that the land is not used only because the owner does not care about it if such land is needed the authority in Sharia gives the owner the choice either to revive or let others revive it. CR # (709):- Just as it is lawful to revive old ruined towns and broken down villages the residents of which are vanished, it also is lawful to revive and refurbish and use the materials of buildings and houses. The person who reserves them is the owner when he takes with intention to own them.

CR # (710):- The endowed land and property abandoned and ruined are of several kinds: (1) That there is no detail available about the by-laws of such property whether the beneficiaries were certain people or general public, whether they were to benefit certain causes or certain people. (2) That it is known that the beneficiaries were certain groups of people but there is no trace of such people left, or that the beneficiaries were certain people of whom nothing besides their name is left.

(3) That the beneficiary is a certain project but it is not specifically known whether it is a mosque, a school, a shrine, or cemetery etc. (4) That certain people are beneficiaries but they are not personally known like when it is

known that the owner made it an endowment for his progeny who he knows exist. (S) That it is known that the beneficiaries are specified causes and / or people particularly known. (6) That it is only known in general that the owner made it an endowment, but it is not known whether it was for a certain cause like a certain school or the beneficiaries are the owner’s offspring particularly known but in accordance with standard of sharia there is no proof in favor of

any of the two. In the case in (1) and (2), apparently, there is no objection for any one to revive such properties; he becomes the owner, such properties

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are like all other barren lands. In the case of (3), according to well-known view it is lawful to revive it but it is not free from objection. It is a precautionary rule for one who revives it by farming or building to ask the high authority in sharia or his representative for permission and pay fair market rent to him who spends for good causes. He can buy it or rent it for a certain rent and the same rule applies to the case in(4). In the case of (S) it is necessary for one who revives or builds such property

to pay fair market value rent and spend it for the specified cause if it is for a cause or give to the specified beneficiaries, if it is for them and it is necessary that the property be used with the permission of the supervisor or the beneficiaries. In the case of (6) it is necessary for one who revives or builds such property to pay fair market value rent and it is necessary to spend for the specified cause by the permission of the offsprings of the donor and it also is necessary to have permission for using it from the supervisor if any, otherwise, permission of high authority in sharia or his agent. If the offsprings would not permit spending on the cause the matter is decided by casting lots to determine the beneficiaries. CR # (711):- If one revives some land he is entitled to own certain area (called Harim) of the land which may not be part of revived land and such areas are those places without which one cannot benefit from the land and no one else can revive such part without the consent of the owner.

CR # (712):- Harim of a house is the way to and from it at its entrance and the place to keep the refuse and sewerage area and the like.

CR # (713):- The Harim of the walls of a garden consists of an area which would be needed to use for keeping the material to build the walls whenever alteration is needed.

CR # (714):- Harim of a canal consists of the area where the soils and things which are collected when cleaning the canal could be kept, when such works are needed to be done and a proper path along it to reach and to watch it. CR # (715):- Harim of a well consists of the area where a person getting water can stand if it is manual at places where animals come and go and the place where water is collected for plants etc; the places where when clearing the well, materials taken out of it could be kept etc. CR # (716) - Harim of a spring like the above cases are the area which make it possible to use the spring.

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CR # (717):- Harim of a village are the areas which are needed to safeguard its interest and the interests of its population, like recreation places, dump sites, drainage areas, roads to and from it, cemeteries, grasslands for their animals etc., all of these are to the limit the population needs that if some others would bother with such places it would cause hardships to the people of the town. There is no other standard to specify such areas and no one must a any thing to such places which would cause difficulties to the people therein.

CR # (718):- Harim of a farm or plantation is the area and places which make it possible to reach to benefit from it like the paths to and from it and the area necessary to keep the materials needed for it.

CR # (719):- The lands said to be of the Arab tribes or non-Arab tribes because they are close to where these people lived when they have not practically assumed ownership by means of reviving them, such lands still have the original condition of being lawful to use. Thus, it is not permissible for these people to prevent others from using such places or demand rent. If they divide such lands among themselves to stop disputes such divisions are not valid thus any one of them can use any part of such lands. However, if they may need such lands for grassland and pastures etc, in such case it will be considered as Harim of their properties and it is not permissible for others to cause them hardships by using such lands. CR # (720):- For wells there is another kind of Harim namely there must be enough distance between two wells so that one is not affected by the digging of the new one by making the water flow off the old well. CR # (721):- For springs and canals also there is another kind of Harim similar to that of the well namely, the distance between two springs or two waterway tunnels must be, in hard grounds, 250 yards and 500 yards in soft grounds. This limitation, however, is an approximate one because the effect of one on the other is mostly zero because of by such distance, and it is not like an unexplained act of worship. Therefore, if the second spring or canal affects the first one despite the said distance between them, apparently, it is not permissible to create another spring or canal, thus, the distance must be enough to stop the unwanted effect on the first spring or canal or the owner of first spring agrees or on the other hand a lesser distance would stop the

unwanted effect of reducing the water of the first spring or canal because of the creation of new spring. Apparently, it is permissible to create a second spring etc, regardless, it is created in a barren and dead land or in an owned land and just as it is necessary that the second spring must not have bad effects on first one, the same rule applies to the second case wherein the land is already owned. The same is the case with creating a new well and canal or

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brooks next to an existing one whenever no harm is caused to first well or canal or brook it is lawful. CR # (722):- It is lawful to revive the dead land around the wells and canals besides the area called HARIM which makes it possible to benefit from canals etc, and the second kind of Harim for wells etc, is applicable only to canals etc. created afterwards etc. CR # (723):- If the dead barren lands are not of the Harim of the established and owned lands it is lawful for any one to revive them even if such lands are very close to the established lands and the owners of the nearby lands have no priority to others. CR # (724):- Apparently, Harim in general is not the property of the person who owns the property that has the Harim, regardless, it is the Harim of a well canal or a house etc., the fact is that it is not lawful for any one to cause him hardships because such areas are subordinate to his property.

CR # (725):- There is no Harim for the adjacent properties for example if two owners build a wall at the boundary-line of the two properties, such wall does not have any Harim on either side; in the same way if one party builds a wall at the boundary-line of his own property such wall does not have any Harim in the adjacent property. CR # (726):- Every owner is entitled to use his property the way he likes as long as such use is not harmful to his neighbor, otherwise, apparently, it is not lawful, such as when because of construction the neighbor’s property is damaged or building a water storage which leaks water to neighbor’s property and causes damage or a sewerage system that leaks into neighbors well etc, or digging new well near that of neighbor’s which affects the latter. Apparently, it makes a difference whether the second well drains water from the first well because of being deeper than the first or some other reason. However, there is no offense in building a house higher even if it would prevent sun’s rays and wind. CR # (727):- If because of one’s using his own property a considerable harm is caused to a neighbor and such harm is not negligible among neighbors, such use is not lawful, if one does, he has to remove it. This is when not using does not harm the owner, otherwise, there are two views about the lawfulness of such use, precaution about not making such use should not be

ignored, also, on precautionary grounds, if not a strong reason, one is responsible for the damage caused to a neighbor due to such use according to common sense, like the leaking sewerage system that leaks into neighbor’s

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case it is necessary to remove such system, but if removing or be done and not having it is harmful to owner, removing and system, both are objectionable and the precautionary rule ignored.

Apparently, such rule is not applicable if the well is dug after the sewerage system.

CR # (728):- If one of believers comes before others to a land with trees that could yield benefits, he becomes the owner. This can only take place when he establishes his control as such that it is now out of other’s control.

CR # (729):- There are a number of HADITH which strongly recommend to be considerate towards neighbors and maintain good social relations with neighbors. They must not be harmed and harms stopped from reaching them.

In some Hadith it is said, "a neighbor is like one’s self, and he is respectable as one’s mother". In some other Hadith it is said "good neighborly manners increases one’s income, develops the neighborhood, makes people live longer. Another Hadith says,"one who stops his harm from reaching the neighbors, it keeps him safe from falling on the Day of Judgement. Another Hadith says,"one who does not have good neighborly manners is not of us." There are still other Hadith with stronger recommendations about good neighborly manners.

CR # (730):- It is recommended that a neighbor should ask permission of neighbor if he needs to place one end of the beam of his house on the neighbor’s wall; even if the neighbor agrees he can still ask him to remove the beam before the construction or afterwards, provided, removing is not damaging, otherwise, due to a more clear reason, keeping is not lawful.

CR # (731):- If two neighbors dispute about a wall which is in possession of none of them, it will go to the one who takes an oath, when the other party refuses to take oath. If both take oath or refuse, the wall would belong to both. If it is attached to only one party’s building or he has plans for it, the wall would go to him after his taking oath.

CR # (732):- If there arises dispute between up-stairs and down-stairs people, the words of down stairs people are accepted about the walls of house and those of the up-stairs about the ceiling and walls of the rooms and the stairs, but if there is storage under the stairs it could belong to down-stairs and the passage way to up-stairs belong to both and the rest belongs to people down-stairs.

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CR # (733):- A neighbor can bend back branches of trees leaning to his property from that of neighbor’s. If it cannot be done, he can cut it by the permission of the neighbor and if the neighbor refuses, the high authority in sharia would make him agree. CR # (734):- The rider of a load carrier animal has priority to it than the one who is holding the reins. CR # (735):- In taking valid possession of dead land it is necessary that it is free of anyone else’s reservations; if one revives such land without the permission of the reserving party the reviver cannot have valid possession. A reservation can take place by any indication of one’s intention to revive, like fencing around, digging foundations, the old well or canals, and digging only one of such well is a reservation for other wells of the waterway tunnels, in fact, it is reservation for the dead land which is watered thereby, thus, others cannot revive such reserved lands. CR # (736):- If one digs a well in an originally barren and dead land to dig one of the wells of waterway tunnels, apparently, is enough for the reservation of the other wells of waterway tunnels as well as the barren lands to which water therefrom reaches after the well is completed and others cannot revive such lands. CR # (737):- Reservation as noted only serves to give priority to the reserving party, it does not make one the owner of reserved lands, despite this, however, it is not an offense to transfer the reserved lands to another by selling etc; what is not transferable is the right itself because it is a right but the subject of the right can be transferred.

CR # (738):- Reservation is only effective as long as the party is able to revive the reserved lands; if he fails to do so for some reason like lack of

funds and tools etc., on which reviving depends, in such case others can revive it. CR # (739):- If one reserves a piece larger than what is possible for him to revive, his reservation of the extra area is not effective.

CR # (740):- One who is not able to revive and establish barren lands, if he reserves some of such land he cannot transfer such lands to others through selling or gift etc.

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CR # (741):- It is not necessary to personally do the reservation work; one’s agent or employee can do it and the right so established would go to him, not to the agent or employee. CR # (742):- If one reserves some barren land on behalf of some one else and then that person agrees to what is done on his behalf, would the right be established in favor of principal in such case or not; there are two views about it, the latter has greater possibility to be true.

CR # (743):- When the signs of reservation are gone if it is because of neglect, his right is no more effective and it is lawful for others to revive it,

but if it is not due to neglect, in fact,ssome thing beyond his control may have done it like strong winds etc., in such case, to consider his right ineffective is not free from objection.

CR # (744):- It is necessary for the person reserving lands to start reviving them after the reservation, if he delays it for a long time, others reviving such lands without his permission is objectionable, according to a precautionary rule, the case should be presented to high authority in sharia with him or his agent and he will be made to go with one of the two choices, revive or give up. If he gives good reason he will be given enough time until such reason is

over. If after this he starts the work, it settles the case, otherwise, his right

turns to be of no effect and others will be allowed to revive it. If high authority in sharia cannot be reached, apparently, the right of the reserving party remains of no effect if he has delayed reviving long enough that common practice would call it as neglected. According to a precautionary rule his rights should be preserved for three years.

CR # (745):- Apparently, require formal decision to or one like him is enough. he becomes the owner but for all to use it.

establishing ownership through reviving does not possess, only deciding to revive and benefit himself If one digs a well in a forest to use for one’s needs, when he leaves the place for good, it is then lawful

CR # (746):- It is necessary for a proper reviving to establish and develop the land good enough to be called as becoming an example of these categories: a house, a garden, a farm, reserved land, a well, a waterway tunnel, or a canal

stc., thus, the degree of development varies from case to case. The degree of Jevelopment of a house is different from that of a garden and so on, but when it is doubtful as whether the required development is achieved or not he rule to follow is that it is not achieved.

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CR # (747):- Abandoning one’s property does not mean that one’s ownership has ceased to exist. If someone comes forward to possess it, he becomes the owner; otherwise, it remains the property of the one who has abandoned it and when he dies, it goes to his heirs and it is not lawful to use it without his permission or his abandonment.

THE BOOK OF COMMON PROPERTIES (MUSHTARAKAT). Paths, roads, mosques, schools, inns, waters and minerals herein are called

commonly owned properties. CR # (748):- Roads are of two kinds (a) open and (b) not so. The first kind is applicable to public roads for all people, no one is permitted to make private use of such roads, like building, digging well, canal or farming planting etc., even if it is not harmful to the road users. Building drainage system, which is part of the maintenance of road in a safe way is not an offense also in the same way constructing cellars under the road with strong and safe structure is lawful, also using the space above the roads in a manner not blocking the road is permissible. Any opening or construction that is not harmful to the road users is permissible. If one extends a balcony above the street and then removes or is removed; if he intends to build again, according to a more clear reason, it is not lawful for another party to use such space junless the first party stops to reuse it.

CR # (750):- A dead end street surrounded by the houses belongs to the owners of the surrounding properties that have doors opening to it, not those that have only a side wall to it. Such street is commonly owned by the owners of the above-said properties from its beginning to its end. Ali the rules of commonly owned properties, apply to it and none of the owners of the surrounding properties can use it without the permission of the others. Every one of them has the right to close the existing door of his property to it and open a new one. CR # (751):- One whose property has only side walls on the dead end street cannot open a door to such street without the permission of the other property owners in that street. He can open a window or such small openings to the street and opening a door not to be used as entrance, but for air circulation or the light coming in also is not free from objection.

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529

CR # (752):- All people whose homes surround a dead end street can use it without the permission of others for all of their needs and without any consideration to equal use by all people around it, even if those under others’ guardianship are among them.

CR # (753):- Everyone can use public roads for sitting, sleeping, praying, selling and buying etc, on them, as long as it does not disturb others or cause them hardships; no one has the right to stop or disturb such users or disturb them in their use of the area they need to place their carry-on materials, or stand on when talking bussiness. CR # (754):- If one sits on the road (sidewalks) and moves away, if he sat to take rest and then moved, his right to that spot also becomes void, if he sits for work or business etc. If he moves after finishing his work or he does not intend to come back again his right becomes void; if someone else occupies the spot, the first person can not stop him. If he moves away before finishing his work and he intends to come back to that spot, if he leaves some of his belongings, apparently, his right to the spot still stands valid, but if he does not leave any of his belongings at the spot, the validity of his right for it is objectionable. The precautionary rule should not be ignored if it happens in one day, but if it happens in another day, apparently, without objection the second one is more rightful than the first. CR # (755):- The following factors form a public road. (a) Very often use of the road by many groups of people in the case of barren and. (b) A person’s decision to turn his property to be used as public road perpetually, when some people uses it, it becomes a public road and the owner can no more take it back. (c) A group’s reviving a piece of barren land and leaving some parts as the roadway among the houses and properties.

CR # (756):- If a public road is situated in several properties it does not have limit, like if there is a piece of barren land in the middle of several properties, three yards wide or more or less, and people use it until it becomes a public road, the property owners do not have to widen such road even if it becomes very congested for the public. The same rule applies if a person creates a road in the middle or at the boundary line of his property for people to use.

;

ISLAMIC

LAWS

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CONTRACTS

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relatives etc., with the intention of returning and leaving one’s luggage behind. It is not an offense to go on such a journey as long as it is not against the terms of the contract of the endowment. It is necessary that one must be called a resident of the school property, if the journey time is so long that one having such a journey can no longer be called a resident of the school, his right to the use of the property becomes void. CR # (768):- If the contract requires the resident not to leave at certain times like week days or at all times, if one goes against such condition, his right to reside therein becomes void. CR # (769):- The resident of an accommodation in such a place must not stop another to share the facility with him unless it is only for one person due to its size or because of the terms of the endowment.

CR # (770):- A shelter for the needy is subject to all the rules mentioned for schools. Waters of rivers and canals, like Tigris and Euphrates etc., or small ones which flow naturally like the springs, or floods or melting snow, and the springs gushing from mountains or barren land etc. are all of the commonly-owned properties. \

CR # (77V:- Whatever of water flows naturally or is collected in some way without any hands involved in it, is of the things that originally is lawful to own, things any one who reserves any thing from them like some water in a container, he owns it, regardless of being Muslim or a non-Muslim. CR # (773):- Water of wells, springs and waterway tunnels which flow due to excavation, not naturally, is the property of the person who has worked to excavate; no one else can use them without his permission.

CR # (774):- If one digs to revive a canal in his own or barren land so that it is lawful to own water flow therein, he becomes the owner of such water also.

CR # (775):- Every one’s share of water in a commonly owned canal is proportionate to his share of canal. If a canal is owned in equal portions, the same rule applies to water. If a canal is shared in smaller and larger portions, the same applies to water. This rule of proportion, does not apply to the lands receiving water from such canals.

CR # (776):- The water of a commonly owned canal is also subject to the rules of commonly-owned properties. Thus, no one is allowed to use it

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-R # (763):- One’s only leaving his luggage to establish the right to such lace is objectionable; precautionary rule should not be ignored. This is if he time between his leaving his luggage and his coming back is not very long hat leaves the place idle, otherwise, such reservation is not effective and it is

awful for others to use it and move his luggage and pray there if the luggage nay have occupied some space and without moving the luggage one can not ray, whether or not one becomes liable for such luggage if he moves them, here are two views about it, according to a more clear reason he is not liable or it because there is no ground for such responsibility after the fact that it is awful to move it in order to reach one’s own right. OR # (764):- All the above mentioned rules apply to the holy shrines.

SR # (765):- The lawfulness.and otherwise of residing of students in school religious) properties, depends upon the terms of the endowment ncorporated by the person forming the endowment contract. If the contract ays, that the beneficiaries are a certain group of students like those of the subject of Sharia, jurisprudence or theology etc., others besides these cannot ise such properties.

About the beneficiaries in terms of who has the priority and who does not 1ave, all the rules applicable to likewise situations of Mosques are applicable n this case too. If one reserves a room in a school property he establishes a riority to the use of room, and others cannot disturb him, as long as he does 10t leave the room for good even if he stays for a long time in that room, inless the endowment contract has a limit for each person’s stay like five ears for example, in which case it is necessary to vacate the place soon when he time expires.

oR # (766):- If the endowment contract requires certain qualifications and onditions, like to be a single student or a married one or be a teacher or a tudent etc., if he gets married or becomes single or quits teaching etc., he nust also vacate the place as soon as his condition or qualification turns to be wainst the terms of the endowment contract. In short, the right to reside in he property of school depends on terms of both the existence of such right ind its continuing to exist on the terms and conditions of the endowment ontract, thus, unqualified persons can not reside therein.

SR # (767):- One entitled to reside does not lose his right because of leaving he property for his daily needs like going out for food etc., as well as one’s ‘oing on a journey for a day or two or more, and also the journeys which are ommonly undertaken which take a certain period of time like a month or wo or more, like going to Hajj or visiting the holy shrines, or visiting

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LAWS

OF

CONTRACTS

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CR # (757):- If a public road is situated in the middle of barren lands from both sides or only one side it cannot be revived to the limit that narrows down the road in the middle to less then five yards which is a limit for such roads by sharia,in fact, it is better to leave the road seven yards wide. If reviving adjacent barren land narrows down the road to less than five yards, the road must be extended by adding the revived land to the road. If a person revives the land from one side of the road and then another from the other side to the extent that narrows it to less then five yards, only the second reviver has to leave enough space for the road not the first one. CR # (758):- If people stop using a road either because it is no more needed or because of some obstacles, the rules of roads will no more apply to it, for both the subject and name are not there any more, any one can revive it.

CR # (759):- If a road is wider than five yards if its extra part is used as a road it is not lawful to revive or possess it, if it is not used as a road if that extra portion is needed because of traffic, it is not lawful to possess such portion, otherwise, it is not an offense to possess and revive it. CR # (760):- All Muslims can pray in mosques without distinction, no one can disturb others, unless one has occupied a place therein before him, apparently, prayer has priority over other activities, thus, if one decides to pray individually or in congregation, it is not lawful for others to disturb him, even if one is there before the person praying, like one reading the holy Quran or other prayers or teaching. He must vacate the place for the one praying a formal prayer. The same rule may apply, even if the person praying chooses the place out of his own choice, if a person who wants to pray chooses a place already occupied by another person who is not praying, it is objectionable to disturb him by an act other than prayer even if he is there before the person who wants to pray.

CR # (761):- If one comes to pray individually, others who want to pray in congregation must not stop or disturb him, although it is better to vacate such place for those praying in congregation if other place is available for prayer and not to be an obstacle for virtue. CR # (762):- If one stands up from his place in the mosque and leaves it, if he does not intend to occupy that place again, his right to the place becomes void.If he then comes back and finds it occupied by another person, he can ‘not move or disturb him.If he intends to come back and leaves his luggage behind, but his absence becomes very long and the place is needed by others it is lawful to use it, otherwise, his right to the place also stands valid without

objection.

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The Book of Common

Properties (Mushtarakat)

533

without the permission of others. If every one of them agrees to let every other person having a share to use it, at all times and in any quantity, he then can do so. CR # (777):- If disputes take place among people sharing a canal, like any other situation they must reach a settlement of dividing according to proper shares and portions by means of special dividing materials which provides the desired ratios and quantities of water like 1/2, 1/3, 1/4 and so on to satisfy

the demand.

CR # (778):- Dividing the water of a commonly-owned canal proportionately, apparently, is compulsory, thus,upon demand of a partner to divide, those who refuse, are forced to do so. But letting each other to use by hours or days or alternative use is not binding, thus, every one can change his mind, apparently, one who has already used for his turn cannot change his mind in such arrangement. CR # (779):- If a group of people find some water originally lawful to own like natural spring etc., every one of them has the right to benefit. If it is enough for every one’s needs without any disturbance the matter is settled, otherwise, each receives his share on first come first served basis if applicable or on the basis of serving first those closer to the source and so on if applicable. The same rule applies to canals taken from rivers. If first come first served or closer to the source receives his share first is not applicable, the one closer to the source gets what he needs and then the next one and so on. First come first serve here means those who have first revived the land or have established their canals.

CR # (780):- Maintenance of commonly-owned canals is the duty of all members proportionate to the size of their shares if every one comes forward for the job, but those who do not participate,cannot be forced. The participants to work are not entitled to demand from non-participants his share of expenses, unless, their participation is because of non-participant’s request and commitment to pay his share of expenses. CR # (781):- If the canal is owned by a child and other people, and without the child’s participation others cannot benefit from it for some reason, it is necessary for the guardian of the child for the interests of the child, to participate in the construction or maintenance of the canal or bearing the expenses according to the share of his ward. CR # (782):- It is not lawful for the owner of a canal to change the course of the canal without the agreement of those benefitting from it for their

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LAWS

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CONTRACTS

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plantations or other needs by the permission of the owner of the canal. Also it is not lawful to reserve a pasture and prevent others to use it,unless it is his _ private property that he can use. CR # (783):- Minerals are of two kinds.

(a) Those on the surface of the earth which do not require digging of the — ground like salt etc. (b) The underground minerals which require digging and work to take them out, like gold and silver mines. Those in (a) are owned by means of reservation, provided it does not harm the others, regardless, of the quantity and the remaining is of the common properties. Those in (b) are owned through reviving after reaching and exposing them. If some digging work is done and the mineral is not yet exposed, such work is good enough for the reservation of the minerals. CR # (784):- If one starts reviving and establishing a mine and then gives up and ignores it, the high authority in sharia or his agent forces him to complete the work or leave it alone. If he gives some reason, he is given sometime until his reason is over and then is given one of the two above choices. CR # (785):- The underground minerals are owned by means of reviving the land if common

sense considers them as materials subordinate to the land,

but the oil wells etc. that need a lot of digging to reach them, such minerals are not subordinate to the land; they are not owned by means of reviving the land.

CR # (786):- If the owner asks one to work for half of the minerals taken out, if this is thought to be hiring it is void, and its validity in the form of ju’ala (offering award for certain job to be done ) is also open to objection.

BOOK

OF LOANS

AND

LENDING.

CR # (787):- In giving loans pronouncement of specified terms is not required. If one gives some property to another intending it to be a loan and the other party takes it with the same intention, the loan agreement is valid. CR # (788):- It is detestable to ask for a loan if he can do without it. If one receives a loan he must pay it back. Asking for a loan is better than asking for charity.

The Book of Loans

and

Lending

|

535

CR # (789):- For the validity of loan it is necessary that the property given as loan must be a substance, thus, payable loan as a responsibility or the benefit in the form of increase in value of something, cannot constitute a valid loan contract. However, a loan contract having a substance of a general nature,

confined in limited individuals as its subject is valid, like the case of lending one of the two Dirhams in one’s possession. CR # (790):- It is necessary for the validity of a loan contract that the property lent could lawfully be owned, thus, lending wines and pigs is not valid. It is not necessary to specify the quantity, quality and details which makes the values of properties different from each other, regardless, the property is exchanged in kind or value. However, it is necessary that the recipient of loan know the amount and qualities of the property loaned to him; a prelude to paying back which is totally unrelated to the validity of the loan contract. ; CR # (791):- It is necessary that the recipient takes charge and possession of the loaned property, because he cannot own it before taking charge and possession of the same.

CR # (792):- If the property loaned is of the category which is exchanged in kind like gold or silver, wheat and barley etc. The recipient becomes responsible for the same kind and he has to pay in kind, regardless, the price is the same as that at time of receiving the loan or it is less or more at the time of payment. The lender cannot ask him to pay in value. However, it is lawful to do so with both parties’ consent and the payable price is the market price of the time of payment. If the property loaned is exchanged on value basis, the value of the time of receiving the loan is payable.

CR # (793):- If one lends as loan a substance, and the recipient accepts, and the lender demands the same substance loaned, it is not necessary to return the substance. CR # (794) A loan which is due for pay-back cannot be delayed unless a condition in a binding contract requires it, however, it is valid to pay a loan before the due date with some reduction but to delay a duly payable loan for the capital and plus something is not valid.

CR # (795):- The lender must not refuse to accept payment any time if the loan is already payable. The same rule applies when it becomes due. Before the time payment is due, can the lender refuse accepting a payment which is not yet due; there are two views about it, apparently, he must not refuse,

ISLAMIC

LAWS OF

CONTRACTS

536.

except, if it is known from other sources that the lender has the right to delay | payment. CR # (796):- It is not lawful to set a condition in the loan contract which requires the borrower to pay extra in quantity or quality, the condition is void and getting extra is unlawful. If one borrows some wheat by means of a contract wherein Riba is involved and he uses it as seed to plant more wheat, he can not lawfully use the harvested product. If one gets some property by means of contract wherein Riba is involved and then with such property he buys clothes he is allowed to use them for prayers. However, if one buys some thing with the very substance of the extra amount received, it is not, in this case, lawful to use it.

CR # (797):- It makes no difference in the unlawfulness of a condition requiring extra, that the extra amount would go to the lender or some one else, like if a lender says, "I lend you this $100 if you give ten dollars to ’A’ or spend it for such and such cause, such condition is not valid. The same rule applies, if the condition requires to build a mosque or a certain other project where some extra property is involved. It is lawful to accept a loan free of all conditions, and it is also lawful to set conditions that require the recipient to be upto his liabilities in the form of payable property like to say, I lend you *X’ amount of money if you pay Zakat due on you or you debts. The same rule applies if the condition requires what is not a property like saying, "I lend *X’ amount of money if you pray for me or Mr. ’A’ or yourself pray or fast," regardless, the benefit is in favor of the lender, the recipient or a third party. The fact is that when a condition requires some extra property which is not independent of the loan, such condition is not lawful, other than this is lawful. If a condition requires payment at a specified place it is binding and so is security deposit. If in a binding contract a condition requires delayed payment it 1s valid and the time limit is binding, apparently, it is lawful to set a time limit in the loan contract, the lender thereafter cannot demand payment before such time. CR # (798):- If one lends another person some thing with a condition that the latter sells some of it for less than its actual price or rent it to him for less than its actual rent, this falls under the extra requiring condition which is not lawful. If the recipient sells to lender some thing for less than its actual price or buys from him for more than its actual price, with a condition that he lends him some money, it is lawful and it does not fall under unlawfully extra paying loans.

CR # (799):- It is lawful for the lender to set a condition requiring the recipient to pay back, what is lent although being exchanged in kind, in another kind, like paying in Dinars for Dirhams, or vice versa. Such

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The Book of Loans

and

Lending

a2

condition becomes binding, if the properties are of equal value or what is paid is of less value than what was loaned to him. CR # (800):- A condition set by lender requiring extra payment from recipient is not lawful, but if it is in favor of the latter it is not an offense, like lending the ’X’ Dollars to be paid back ’X’ minus ’Y’ dollars; similarly if recipient sets a condition requiring the lender to pay the former something. CR # (801):- It is obligatory for the borrower to pay back immediately as soon as it is due upon the lenders demand, if possible even by selling his goods or property, or demanding people owing to him or borrow from someone if it does not cause hardship to him, or rent his property. But if he is not able to do any of these, is it obligatory for him to do some business suitable to his status to earn and pay his debts or not? precautiously he should do so. However, there are some exceptions; selling one’s house where he lives, his clothes that he uses, even

for beautification,

reducing his

employees whose services he needs etc., based on his social and economic status, that if he loses certain means and facilities he is faced with a lot of hardships, degradation and rancor. It does not make a difference whether

one piece is treated as an exception or more, one may need more than one house, or more than one employee because of his social and economic standing and status, and the same rule applies to other things treated as exceptional. But if one does not need some of his houses or things of his belonging, it is necessary to sell them. In matters of the exceptions, the properties like one’s house etc., one is not forced to sell them to pay his debts and it is not obligatory for him to do so, but if he agrees to sell his house to pay his debts it is lawful for the lender to accept such payment even though the lender should not have agreed to the sale of the house of the indebted. CR # (802):- If a house is a property of endowment and Mr. ’A’ is the beneficiary of that endowment and besides this he has his own house if his living in the endowment property is not against his socio-economic status and living therein does not harm his condition and status, he according to a precautionary rule,in fact,a more clear reason, should sell his own house to

pay his debts. CR # (803):- If one has some property, besides those exceptional ones but he can only seil them for less than fair market value, it is necessary to sell them for less to pay the loan. However, if the difference of price is to the extent that commonly is not negligible and the person is not considered affluent in this case, it is not necessary to sell them to pay the loan.

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CR # (804):- It is lawful to donate for paying some one’s debts, regardless, the indebted person is dead or living, and this frees him of his liability, and

regardless, it is with the approval of the lender or not, even if he disagrees. CR # (805):- If the person indebted sets aside an amount to pay off the debt, it is of no effect, only when the lender receives the payment, then the amount is specified. If the amount to be paid is lost before reaching the lender, the recipient is still liable for it. CR # (806):- When the recipient of loan (the borrower) dies, payment becomes due and it is paid from the legacy before any thing else. If the lender dies the payment time remains as it is according to the contract. His heirs cannot demand immediate payment before due time. Thus, if a husband dies, the wife can demand her dowry - Mahr which is not payable at that time; on the contrary, if the wife dies her relatives cannot demand her dowry for which payment time is not yet due. Can divorce be treated as death in this regard? There are two views about it, apparently, the same rule can be applied to it, because of the fact that the condition of delaying the payment is valid only when it is lawful with marriage still effective. CR # (807):- The death of the indebted is different from his being stopped by a court order from using his property, like bankruptcy, if the latter has debts payable presently or later on, his property is divided among the lenders who must receive payment immediately but not those whose loans are not due for payment yet.

CR # (808):- If the lender disappears and there is no news from him, the borrower must, with the intention of remedy, make a will to pay the loan after he dies. If his disappearance is such that can only happen with the death of a person, it is necessary to pay the loan to the lender’s heirs. It also is lawful to pay the loan to the heirs of the lender after ten years if there still is no news from him, even if it is not due to his death; in fact, it is lawful to pay to his heirs after four years from his disappearance if one has kept searching for him during this time. CR # (809):- It is not lawful to divide a receivable loan. Thus, if two people are to receive payment from several people, like if they sell a property commonly owned by the two to several people, or receive in inheritance a payable loan owned by several people, and then divide such receivable loans after adjustments and assign one to collect the loan from one of the indebted people what he has to pay for his share and what is owed by the rest of people would be collected by the other one, such arrangement is not valid. The loan remains as commonly owned by them both. However, if two people

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and

Lending

539

have a collectable loan owed by one person, they can decide to let one of them collect his share from the indebted and leave the rest for the other and this does not fall under the case of dividing the commonly owned loans. CR # (810):- It is not lawful to demand payment from an indebted who is not able to pay because of his facing financial hardships, he must wait until he can pay. CR # (811):- If one borrows some Dinars and then the government cancels them and replaces them by other Dinars, he only has to pay the former Dinars. However, if one borrows currency notes which are then cancelled,

the borrower has still to pay the value of such currency marketed before cancellation. CR # (812):- It is valid to sell a loan in exchange for a property at hand even if the property is less than the loan in value, if it is not of the same kind and not something that involves RIBA. It is not valid to sell a loan in exchange, for loan that existed before contract, regardless, both loans are due for payment, payable later or of different times to pay. If it becomes loan by that contract, such loan is not valid if both are payable later on, according to a precautionary rule, and it is valid in other cases. If one of them is loan before the contract and the other after the contract, it is valid except in the sale of (muslam Fih), goods purchased in exchange for cash to be delivered later on, for which the time of delivery is not yet due, in which case it is not lawful to sell it to other than its seller in all cases, but it is lawful to sell to other than

its seller aher it is due for delivery, and to its seller aher such time in all cases according to the details just mentioned.

CR # (813):- It is lawful for a Muslim to receive payment of loan from a non-Muslim tax-payer in the form of the proceeds of something that the latter has sold and which cannot lawfully be bought or sold and if he becomes a Muslim after such sale, he still deserves to demand payment for such merchandise. CR # (814):- It is lawful for ’A’ to give some property to ’B’ so that ’B’ authorize ’A’ to collect the same amount from ’B’s friend ’C’ at another place if °C’ owes something to ’B’ and the property is not of the kind that is bought and sold by weighing and measuring. ’C’ pays the same amount or less or more.

CR # (815):- If one receives money from a deal in which RIBA is involved and he is ignorant of the rule or the deal being involved in RIBA and then

ISLAMIC

LAWS

OF

CONTRACTS

540°

learns about it; if he repents, what he has received is his, but he must not do it again.

CR # (816):- If one receives in inheritance some property in which there is some RIBA, if it is mixed with lawfully owned property there is nothing against it, if such property is known and specified and its owner also is known, it must be given back to him, if the owner is not known, one has to deal with it as if it were a property of unknown owner.

SOME

FINAL

WORDS

Giving loan to believers is strongly recommended and preferable act, specially to the needy ones, because it provides relief to ease their difficulties. The Holy Prophet has said, "any one who provides relief and ease to a Muslim’s worldly hardships, Allah grants him relief to ease his hardships in the Hereafter". He has also said, "If one gives loan to a believer to provide him some relief, his rewards are like the rewards of paying Zakat and the angels pray for him to the time of payment. One who gives loan to his Muslim brothers, for each Dirham his reward will weigh equal to the mountain of Uhud of the Rizwa Mts and Mts Sinai, if he deals with kindness when demanding payment, he will pass the Bridge to paradise just like lightning, without any questions asked or any suffering. If one’s Muslim brother requests for a loan and it is denied, Allah makes his going to paradise unlawful when people of good deeds will be receiving their rewards. The sixth Imam has said, “any one of believers who gives loan for the sake of Allah, He

grants him a reward for it like the reward for charity until he is paid back." He also said, “it is written on the door of Paradise, ten for charity and eighteen for loan.

THE BOOK MORTGAGE

OF (RAHN)

It is necessary to form this contract with an offer and acceptance of the parties. Verbal pronouncement is not necessary, action and deeds can also serve the purpose. Taking charge or possession as being a condition is objectionable but according to a strong reason such condition is necessary.

The Book

of Mortgage

(Rahn)

541

CR # (817):- The mortgaged property must be an owned substance that one can take possession of and could validly be sold and the mortgage must be against an established right as a substance or the profits of something.

CR # (818):- If one mortgages someone else’s property along with his own property, for his own property the contract is binding; the rest depends upon the permission of the other owner. CR # (819):- From the side of Mortgager the contract is binding. CR # (820):- A young bearing property mortgaged does not subject the young to such contract. CR # (821):- The profit of the mortgaged property belongs to the owner, Mortgage for one of two loans is not a mortgage for the other, if one receives another mortgaged property as loan, and forms a contract to let the first mortgaged property cover both loans, it is considered valid. CR # (822):- It is lawful for the guardians of the minors to mortgage the property of the dependents to safe guard their interests. CR # (823):- The mortgagee is not allowed to use the mortgaged property without the permission of the mortgager and it is not an offense if the mortgager uses the mortgaged property as such that is not against anyone’s rights in such contract and the mortgager is not permitted to use the property in someway against the interest of the deal without permission of the mortgagee. In the rule about the goods to be exchanged in a transaction it was mentioned whether or not the mortgager can sell the substance of the mortgaged property with the knowledge of buyer or his ignorance in the section dealing with conditions required in the merchandise on both sides of the contract.

CR # (824):- If the mortgagee sets a condition in the contract requiring the profits of the mortgaged property to go to mortgagee during the whole term for free, if this does not lead to stipulating in loan or delaying the loan, such condition is valid. The same rule applies if the condition requires that the mortgagee have the profits of the mortgaged property in exchange for rent for the length of the term. If the condition is valid it becomes necessary to uphold it to the end of the term, even if the mortgager has become free from his obligation.

ISLAMIC

LAWS

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CONTRACTS

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CR # (825):- If in the contract a condition is set to let the mortgagee or someone else to act as agent in the selling, the agent cannot be removed from such task for life. CR # (826):- If the mortgager in his will says that the mortgagee can sell the mortgaged property and accept it as payment for the mortgage money, the will is binding and the heirs cannot make the mortgagee to return the property to be paid from other properties.

CR # (827):- The right in mortgage is inheritable, if the mortgagee dies the right is transferred to his heirs. CR # (828):- The mortgagee as a custodian is not liable for the mortgaged property without neglect or trespassing, otherwise, he is liable for its kind, if it is exchanged for its kind; if not, the cost of the time of neglect or trespassing and his words on oath are ‘accepted iin the matter of price and not having any neglect, and the words of the mortgager are accepted about the amount of liability and the loan. CR # (829):- The mortgagee has the priority over others demanding payment from the mortgaged property if the mortgager becomes bankrupt, if any thing is left after paying debts the mortgagee shares others in it, and if any thing is left from mortgage and the mortgagee demands payment because of other loans besides mortgage, he shares it equally with others.

CR # (830):- If the mortgagee uses the property without the permission of the mortgager, he is liable and he has to pay rent.

CR # (831):- If the mortgager authorizes the sale of the property before the end of the term, payment received is not used without the permission of the mortgagor until the end of the terms of mortgage, if the mortgager does not authorize to pay off the mortgage from the sale money the mongagee can accept the money for mortgage payment without his permission, likewise, if the mortgager does not authorize the sale and refuses to pay the loan, the mortgagee is allowed to sell and collect payment without his permission and it is a preferable precautionary rule to consult the high authority of Shari’a, in this case. CR # (832):- If the mortgage is for loan payable after a certain times and the property (mortgaged) is perishable like fruits etc., if the mortgager has set a condition requiring not to sell before the end of the term, the mortgage is void, otherwise, it must be sold and collected as mortgage payment if the mortgager or his agent sells it, the matter is settled, and if he refuses, the

ISLAMIC

LAWS

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CONTRACTS

543

high authority of shari’a makes him to do so if this can not be done, the authorities or their agents sell it and if they are not available, the mortgagee sells it.

CR # (833):- If the mortgagee is afraid of the heirs of the mortgager after his death, and has no witness for the mortgage, he is allowed to collect as mortgage payment from the mortgaged property.

CR # (834):- If disputes arise between the mortgagee and mortgager the words of owner are accepted, if he claims it to be safe deposit and the other party claims it to be a mortgage this is when the debt is an established fact, otherwise, the words of one who claims it to be a mortgage are accepted.

THE BOOK OF (HAJR) PLACING UNDER GUARDIANSHIP The following are reasons to place certain persons under guardianship. (a) To be a minor; a minor is not allowed to use his properties until maturity. The signs of maturity are growing of thick pubic hair, experiencing semen discharge in one’s dreams, or menses or becoming fifteen years old for a male and nine for female. A child’s handling of his affairs is not effective, thus, it is not valid to buy from or sell to him on credit or as loan or borrow from him even if the payment time coincides with his maturity; affairs like their marriage and divorce, leasing, renting, hiring themselves, work in Mudarabah and farming etc. (b) Mental-illness; handling of properties by such persons themselves is not effective except at times when they recover.

(c) Suffering from foolishness; such persons are placed under guardianship about their properties according to well-known views. Such people’s recovery is when they deal with their property reasonably, when they are judged they are proved to be guarding against losses and their activities are reasonable. They remain under guardianship if they are not reasonable. Maturity is proved in men by the testimony of other men, and in females by the testimony of men and also women with some degree of objection. (d) Bankruptcy with the presence of the following four conditions.

(a) His indebtness must be proved to the high shar’i authority and (b) that they all are due for payment and (c) his property is not enough for payment

The Book of Placing under Guardianship (Hajr)

544

to cover the debts and (d) the creditors demand for placing him under guardianship.

When the high authority places him under guardianship his handling of his properties become void and ineffective if it is without the permission of creditors as long as he is under guardianship. CR # (835):- If a bankrupt loans after being placed under guardianship or buys some thing on credit, this creditor and seller do not share other creditors in the property guarded. If he destroys some one’s properties, apparently, the owner is not entitled to share the other creditors in the guarded property. The same rule applies if he acknowledges a debt as prior to his going under guardianship or some existing substance. CR # (836):- A bankrupt can allow to sell the right of having the choice to annul a contract, and the lawfulness of his annulling a contract is objectionable. CR # (837):- If one finds the very substance of his property among the property of a bankrupt, he can take it without its separable profits, but the inseparable profits, like growth of animal and plants and ripening of fruits etc. which cannot be separated, go with the substance. Whatever can be separated, like wool and fruits etc., taking of such things is objectionable, apparently, they are not considered subordinate.

CR # (838):- If one finds the substance of his property in the property of the bankrupt who has mixed it with its kind, he can have the substance of his property (in all cases) even if it is mixed with a better quality, the same rule applies if it is mixed with some thing other than its kind as long as it is not considered as destroyed. CR # (839):- The substance of the property of the lender present in the legacy cannot be taken out when the legacy is not enough to pay liabilities. CR # (840):- Seeds for planting and eggs for hatching are taken out of legacy as special case. CR # (842):- If in the legacy there is a property subject to Zakat, Zakat is taken out before other liabilities, so is khums, if they are payable by the deceased they are treated like all the other liabilities.

The Book of Placing Under Guardianship (Hujr)

545

CR # (843):- It is not lawful to demand payment from one who cannot pay or force him to work and earn if he usually does not do and it is difficult for him, nor he has to sell the house where he lives and it is not above his status

or cut off the services of his employees, etc., which cause him hardships as mentioned in the chapter on loan. CR # (844):- The loan not yet due for payment does not become due because of one’s being taken under supervision of court, but if the debtor dies, payment becomes due but a loan does not become due because of the death of the creditor. CR # (845):- The bankrupt recovers his and his dependent’s expenses from his own property until the day it is divided among creditors, if he dies, first the burial expenses like shroud etc., are taken from his property. CR # (846):- The property is divided upon the loans due for payment if a loan is reported due after division, its share is deducted from the other’s shares; with division he is freed and when payments are made supervision also is removed.

CR # (847):- Father and grand-father are the guardians of the property of children, the mentally-ill and fools who remain as such after maturity, in their absence testator is the guardian if he is appointed to deal with the case and if there is no one, the high authority deals with it. The guardian of the mentally-ill, the fools and who have become ill after maturity and the bankrupt, is high authority in sharia only.

ISLAMIC

LAWS

OF

THE BOOK GUARANTEE

CONTRACTS

OF

546|

(DAMAN)

Guarantee means a guarantor’s transferring of responsibility of the liability of a party on himself in favor of creditor. CR # (848):- In a guarantee contract there must be an offer by the guarantor and acceptance by the creditor by any means that indicates guarantor’s commitment to guarantee paying of the loan and the agreeing of the creditor. CR # (849):- The guarantee must be definite, not conditional, otherwise, it is not valid. The validity of the guarantee contract is not too far from validity if the guarantor is presently committed but the payment depends on not paying by the indebted party, the creditor demands payment from guarantor only if he is not paid.

CR # (850):- It is necessary that the guarantor and the guaranteed parties are mature, of sound state of mind, free from compulsion, foolishness and

bankruptcy. On the part of the indebted there is no such condition, if one guarantees the debt of a mentally-ill person or a minor the contract is valid. CR # (851):- When the guarantor pays the guaranteed the specified amount, he can demand from the debtor if the guarantee arrangement is made on his request; otherwise, he cannot demand. CR # (852):- If the guaranteed relieves the guarantor of his commitment of paying the debt, he is acquitted of his liability, and he then cannot demand payment from the debtor, the same rule applies to partial arrangements; the guarantor asks the debtor only for what is paid. If the guaranteed agrees to a settlement for less than the original debt with guarantor, the latter can only demand the debtor for what he has paid, not the whole original debt. The same rule applies if he has originally guaranteed partial payment with the agreement of the guaranteed in general, the guarantor, asks the debtor to pay only what he has actually paid and not anything extra. Thus, if a third party

The Book of. Guarantee

(Daman)

547

donates to pay off the whole debt, the guarantor cannot demand from the debtor anything.

CR-# (853):- A guarantee contract is binding. The guarantor is not allowed to revoke it nor can the guaranteed do so.

CR # (854):- The right of having the choice to annul the contract in favor of either the guaranteed or the guarantor by means of setting a condition can validly be established. CR # (855):- If the debt is due for payment and a guarantor has guaranteed to pay later, thus the time is because of the guarantee not because of the debt itself, if the guarantor waived the time factor and pays the debt in cash, he can ask the debtor for payment and the same rule applies if the guarantor dies before the due time for payment. CR # (856):- If the loan is payable after an appointed time and a guarantor guarantees it for the same timing, then he ignores the time and pays it cash, he cannot demand payment from the debtor before the time for payment is due. The same rule applies if the guarantor dies during the term, the guaranteed gets paid from the legacy immediately, but the heirs can not demand the debtor for immediate payment before the payment is due. CR # (857):- If the debt is payable after an appointed time and the guarantor agrees to pay it immediately by the permission of the debtor, and pays the debt, apparently, it is lawful to ask the debtor to pay after paying to guaranteed, due to common understanding from his permission.

CR # (858):- If the debt is payable after an appointed time and one guarantees it to pay before the payment is due, like if the time is three months and he has guaranteed to pay in a month, he cannot demand the debtor before three months, but if he has guaranteed to pay in six months, and then waives the three month and pays, he can ask the debtor for payment. The same rule applies if the guarantor dies after the time for payment is due and before the time he has agreed to pay. CR # (859):- If the guaranteed credits what the guarantor Khums or Zakat with the permission of high authority in Sharia apparently, the guarantor can ask the debtor to pay him guaranteed. The same rule applies if the guaranteed receives then gives it back as gift etc., to guarantor, or the guaranteed guarantor receives what he had to pay as inheritance.

owes him as or as charity, what he had payment and dies and the

ISLAMIC

LAWS

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548

CR # (860):- It is lawful to guarantee with the condition to have a mortgage from the debtor.

CR # (861):- If the debtor has a mortgage for a debt the guarantee relieves him of the mortgage obligation. CR # (862):- If two people guarantee one’s indebtness it assumes a general sense: they each must pay equal amounts or as it is said, each one is obligated for the whole. Based on the latter view if the guaranteed acquits one of them particularly the other is not free from obligation, but there is objection in it, in fact, according to a strong reason, it is void. CR # (863):- If one is a debtor to two people one person can be the guarantor for them both or only for one particularly, to become the guarantor for either one unspecified is not valid. The same rule applies if two persons are the debtors to one person and one person becomes the guarantor for the both, if the guarantee is for both or one specified it is valid but if it is for either one unspecified, the deal is not valid. CR #(864):- If the debtor is poor it is not valid for the guarantor to pay the debt from Khums or Zakat, regardless, the guarantor presently owes such taxes or not.

CR # (865):- If one’s established debts are payable as Khums or Zakat, it is valid to guarantee such debts in favor of the high authority or his agent as guaranteed.

CR # (866):- If one becomes a guarantor during his illness from which he dies, the.guarantee is valid and the debt is paid out of his legacy, regardless, it is with the permission of the debtor or not. CR # (867):- It is valid to be a guarantor for the past maintenance expenses of a wife, but for future is objectionable and it is not valid for relatives.

CR # (868):- It is valid to be the guarantor of an existing substance to guarantee to safeguard it, in effect it becomes necessary to return it to owner if the substance still exists and its kind if the substance itself is destroyed. Likewise is the case when one guarantees a buyer for what he pays, if for the merchandise someone else happens to be the more deserving or the sale is invalid. In general, to be a guarantor for a substance is to guarantee in the sense of safe-guarding the same not to become indebted, thus, it is another kind of guarantee.

The Book of Guarantee

(Daman)

549

CR # (869):- To guarantee what a buyer builds or establishes on land that he has purchased against the possible claim of the land to belong to others; the validity of such guarantee is objectionable.

CR # (870):- If one asks the other person,” throw your property in the sea; I will guarantee to pay you", and the person does, the former is responsible for it, regardless, it is to save the boat or other reasons, the same rule applies, if one orders the other to give one Dinar to a needy or to do some work for him or another person, he is liable, if the other person has not intended to do such thing free. CR #(871):- If the debtor claims the existence of a guarantee and the creditor denies it, the words of creditor are accepted, the same is the rule if the debtor claims the existence of guarantee for the whole debt and the guaranteed denies for some of the debts. CR # (872):- If the creditor claims that someone has guaranteed a loan for him and he denies it, the words of the denying person are accepted. If they agree about the guarantee but dispute the amount or about a condition of whether the payment was to be made soon or after an appointed time, the words of the guarantor are accepted. If they dispute whether there is a condition requiring the payment to be made after an appointed time when the debt is to be paid immediately or the dispute is about paying off or that the guaranteed has to waive something, the words of the guaranteed are accepted.

CR # (873):- If the guarantor and the debtor dispute about whether the guarantor was authorized to pay the guarantor or the amount of debt guaranteed or about any condition on the debtor, the words of the debtor are accepted. CR # (874):- If a defendant denies to be a guarantor and the guaranteed manages to make him pay because of establishing enough testimony, the guarantor cannot demand any thing from the debtor, because of his agreeing that the guaranteed has unjustly made him to pay.

CR # (875):- If the guarantor claims to have paid the debt but the guaranteed denies it and swears, the guarantor cannot demand the debtor to pay if he does not accept his words and approves what he says.

CR # (876):- It is lawful for ’A’ to be a guarantor of the debts of ’B’ and ’C’ to be the guarantor of the debts of ’A’ and so on. In this way all the

ISLAMIC

LAWS

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CONTRACTS

550

guarantors are free of their obligations except the last one who is responsible for the creditor, if ’C’ pays it he asks ’B’ for payment and ’B’ asks ’A’ and so on until it ends with the debtor. This is when the guarantee is authorized by the debtor, otherwise, he does not have to pay, if ’A’s guarantee is not authorized by ’B’ and ’C’s guarantee is authorized by ’A’ and ’C’ has paid the debt, he asks ’A’ for payment but ’A’ cannot ask ’B’ to pay.

THE BOOK OF (HAWALAH) ASSIGNMENT Assignment means one’s transferring what he owes to another person who would pay the creditor.

CR # (877):- For the validity of Assignment agreement there must be an offer by the assignor followed by an acceptance from the assigned or the creditor, by any means which indicates such agreement such as words or deeds or writings. CR # (878):- It is necessary for assignor and assigned to be mature, of sound mental condition and rational, as well as free from bankruptcy except in the case of assignment to an unindebted assignee in which case the assignor can be a bankrupt or a fool. The assignor and assigned must be free from compulsion but the need of this condition for the assignee is not free from objection, apparently, it is not necessary except if the assignee is unindebted or payment with some kind other than that of the debt is asked in which case it is necessary that the assignee accepts the assignment freely and willingly.

CR # (879):- It is necessary in assignment of debts that the debt is an established liability of the assignor, thus, to assign the debt that one has yet to become a debtor of is not valid. CR # (880):- It is a condition for the validity of an assignment that the property assigned is specified, if one owes to another a ton of wheat and one dollar it is not valid to assign one for either one of the two unspecified properties.

CR # (881):- For specifying the debt to have a valid deal it is enough to specify it as, in fact, it is, even if the parties do not presently know the kind

The Book of Assignment

(Hawalah)

551

and quantity. If debt is recorded in all details and the assignor assigns the creditor to the assignee before looking into the records and after he finds the records he informs the creditor of the kind and quantity, the deal is valid. CR # (882):- The party assigned, or creditor can refuse the assignment even if the assignee is not poor or tardy and procrastinating in paying his debts.

CR # (883):- It is not lawful for an unindebted assignor the amount of money before he pays it to and the assignee agree on a settlement for less lawful to ask from the assignor more than what he

assignee to demand from the creditor. If the creditor than actual debt, it is not has paid.

CR # (884):- It does not matter whether the assigned debt is a substance on the assignor or a benefit or a work in which personal work is not required, like sewing a dress or even like praying, fasting, performing Hajj, visiting the Holy Shrines and reading Holy Quran etc. It also does not matter whether the assignment is to an unindebted person or an indebted person, or that the debt is a property exchanged in kind or value. CR # (885):- Assigning a debt is a binding contract. The assignor and assigned cannot revoke it. If at the time of assignment the assignee is not financially able to pay and the creditor does not know about it, he can revoke the contract after coming to know the case, even if the assignee has become rich at present, but if the assignee is well to do at the time of assignment or the creditor knows his financial inability, he, the creditor can not revoke.

CR # (886):- It is lawful for the contract to give any one of the creditor, the assignor or assignee, the right of having the choice to revoke the contract. CR # (887):- If the assignor himself pays the debt if this is due to a request from the assignee who is a debtor, the assignor can demand from him for what he, assignor, has paid, but if it is not due to the assignee’s request or the assignor intended not get any thing from the assigned to, the assignee can not demand payment from him.

CR # (888):- If a third party volunteers to pay for the assignee, it makes him free from his obligation, and the same rule applies if some one guarantees the liability in favor of the assignee with the consent of the creditor or the assigned. CR # (889):- If the assignee asks the assignor to pay what he has paid and the assignor claims the assignee to be indebted to him and later denies it, the

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LAWS OF

CONTRACTS

552.

assignee’s words are accepted if there is no testimony, and he takes an oath to prove his not indebtdness. CR # (890):- If the creditor and the debtor dispute about a contract between them as whether it is assignment or agency? In the absence of testimony the words of one who denies it to be assignment, regardless, he is the creditor or the debtor, are accepted. CR # (893):- If 7A’ demands some Dinars from ’B’ and ’C’ demands some Dirhams from ’A’, then ’A’ assigns ’C’ to ’B’ for Dinars, if it is meant that ’A’ changes what he owes in Dirhams into Dinars with the agreement of ’B’ and thus ’B’ assigned to ’C’ for Dinars, there is no objection in it, but if it is meant to assign ’B’ to ’C’ so that Dinars are credited for the price of Dirhams without any assignment of debt, it is not necessary for ’B’ to accept the assignment of debt, and so it is when ’A’ assigns ’B’ to ’C’ for Dirhams while the debt of Dinars are still payable by ’A’ to ’B’, ’B’ does not have to accept it. It is a kind of assignment to a not indebted person.

THE BOOK BAILSMAN

OF

(KAFALAH)

Bailsman is the person who guarantees handing over of debtor to the creditor when the latter asks for him.

CR # (894):- A bailing contract becomes effective by the offer of the Bailsman by means of some expression that can indicate his commitment to such obligation followed by an acceptance of the creditor by means of some expression. CR # (895):- The Bailsman must be of sound mental condition, mature, free of any compulsion, able to present the debtor. Maturity, sound reasoning, freedom from mental-illness and freedom from compulsion are not required on the part of the creditor. Thus, it is valid to become a bailsman for a child, a fool or an insane if the guardian approves.

CR # (896):- Bailing is valid by presenting the bailed party if the latter liability is financial, and it is not necessary for the bailsman to know the amount of the property.

The Book of Bailsman

(Kafalah)

553

CR # (897):- If the debt is established and payable, the validity of bailing is not objectionable, but if it is not established, only the reason for a liability is established like the unilateral contract of ju’ala or the betting in horse-racing and sharp-shooting etc., in such case, the validity of bailing is not free from objection, although validity is not far from reality. CR # (898):- Bailing is a binding contract, the bailsman can not revoke it without asking the other party to agree or setting a condition that gives him the right to revoke. CR # (899):- If the bailsman does not present the bailed person and the creditor acquires the debt from the bailsman, if the bailed person has not authorized the bailing or pay-off, thebailsman cannot demand any thing from him if he has authorized for both tasks or just the pay-off the bailsman can demand from him payment, if only bailing is authorized, apparently, he can not demand payment even if he is not able to present the bailed person to the creditor. CR # (900):- It is necessary for the bailsman to use any lawful means to present the bailed person to the creditor, if he needs some strong people and seeking his help does not have any bad effects religiously, it is necessary to seek such help.

CR # (901):- If the bailed person is not present - and he requires transportation expenses, apparently, such costs are on the bailsman except if he spends by the permission of the bailed person. CR # (902):- If the creditor transfers his established and guaranteed right to another person by means of selling, settlement, assignment or gift, the bailsman is void. CR # (903):- If one releases another person’s debtor from his hand by force or some other deceitful manner in such a way that the creditor can no more acquire his property ,this person is like bailsman, he must present the debtor, otherwise, he is liable for the debt which he must pay.

The bailing contract is dissolved due to the following factors: (a) Presenting of the person liable before the creditor by the bailsman. (b) Paying off his debt. (c) Waiving of the creditor the debt in favor of the debtor. (d) The bailed out person dies. (e) The creditor drops the bail.

ISLAMIC

BOOK

LAWS

OF

OF

CONTRACTS

(SULH)

Settlement

Settlement is a contract of agreement and peace-making between two people on a certain matter, like possession of property, its profits, or waiving a debt or right etc., with or for no cost or in exchange for the same property. |

CR # (904):- Settlement is an independent contract; it is not related to other contracts, even if it gives a contracting result, it is like selling, when the settlement is in exchange for some property and it is like gift if it is reached

about a substance without anything in exchange, and the result of rent if it is about a benefit; the result of waiving if it is about waiving a right or debt. CR # (905):- If a settlement is reached about a substance or benefit, its effect is the transfer of such properties to the parties, regardless, of being in exchange for some thing or without it, the same rule applies if it is about a debt of a party other than the parties of settlement, or a transferable right, like the right of reserving an appropriation, if it is about a debt of the parties of settlement, its effect is the waiving of such debts. The same rule applies if it is about a right that could be waived and not transferred like the right of Al-shuf Settlement is not valid about whatever that cannot be transferred or waived. CR # (906):- A settlement is valid as soon as a benefit is acquired from a substance, like reaching a settlement with a person which says that one party can stay in the other’s house or use a certain piece of property for an appointed time, or that one party can place the beam of his property under construction on the wall of the other party’s house or use some of his ground to let the sewer system pass through or let one party use the other’s driveway etc., regardless, it is in exchange for some thing or without it.

CR # (907):- A settlement can be arranged even if a party is acting tentatively on behalf of a party concerned just as it is possible in selling and other such contracts.

CR # (908):- In a settlement it is not necessary to know exactly the amount of properties involved. If the properties of two people are mixed, they can reach a settlement by deciding to share it equally or each have a certain ratio, likewise, any one of them can agree to settle the case on receiving some other property, regardless, the mixed properties can no more be distinguished from each other or could be done.

a =

The Book of Settlement

(Sulh)

555

CR # (909):- Two disputing people can lawfully have a settlement in the disputed property or so, even if the defendant denies. With such settlement one’s ment of suing is abolished, likewise is the right of taking oath which the plaintiff has upon the denying defendant, after this the plaintiff cannot renew the law suit, but this, apparently, is the end of dispute. It is not lawful to receive anything through a settlement unless one is rightful, like if one demands a certain payment of debt from another person who denies, and then settle it by paying half, as a result the dispute is abolished but if the plaintiff is right, he has received half of his money and the other half is a liability of the denying party, but since the denying party believes otherwise, he is not held liable and has not committed any sin. However, if the plaintiff agrees with a settlement that relieves the other party of all liabilities, the plaintiff's right is abolished. CR # (910):- If the defendant asks the plaintiff for a settlement, it is not to establish the latter right, a settlement is valid in both cases of confirmation as well as denying, but if he says sell it to me or give me possession, such statement is confirmation. CR # (911):- It is necessary for the parties of the settlement to be mature, of sound reason, free from compulsion, willing, free from being supervised and foolishness etc. CR # (912):- Settlement agreement is formed by means of anything that could indicate such deal in the form of words or deeds etc., and no special statement or words are needed to express and pronounce it .

CR # (913):- If one reaches a settlement with a shepherd to have his sheep for a year for example to use their milk, give back a certain amount of butter, the deal is valid, but if one hires sheep for a year in the same way it is not

valid. CR # (914):- Waiving a right or debt does not require acceptance, but settlement for such matters needs acceptance. CR # (915):- If the debtor knows the amount of debt, but not the creditor and settles the debt for less than the actual amount, the debtor does not

become free of his obligation of the remaining amount, unless he knows that the creditor agrees with the settlement, even if he comes to know of the actual amount.

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LAWS

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CONTRACTS

556

CR # (916):- It is not lawful to reach a settlement which requires to exchange properties of the same kind if they are of the kind exchanged by weight and measure, and knowing that there some extra quantity is given on one side, according to a precautionary rule, but it is not an offence if there is just a possibility of extra on one side. CR # (917):- It is not an offense to exchange two debts on one person or on two people, when the debts are not of the goods exchanged by weight or measurement of the same kind, or equal in weight and measurement. If they are of the goods exchanged by weight and measurement of the same kind, the lawfulness of reaching a settlement with some extra amount on one side is objectionable. CR # (918):- It is valid to exchange two properties by settlement, not selling, if both properties are of known quantities and of the same kind but it is a Mustahab Ihtiyat that they should not be of unequal quantities, but if their quantities are not known the settlement is valid even if one may think that the properties are not equal in weight.

A settlement between two people in a debt payable to them by third party or parties after an appointed time for less than what is worth if is valid. This is when the debt is in gold or silver or other things not exchanged by weight and measurement and are not of the same kind, in properties, other than these it is lawful to sell or make settlement for less than the debt from a debtor or other people. Thus, it is lawful to reduce bill of exchange or draft in exchange id me ee

for other such materials of these days. Today’s Dinars are not exchanged by weight or measure.

CR # (919):- The settlement contract is binding by itself even when it is not in exchange for anything, and it gives the benefit of gift. Such contract cannot be revoked without the agreement of the parties to do so, or by the party who has been given the right in the contract to do so.

CR # (920):- The right of having the choice to revoke the following cases, 2, 1 and 5 is not applicable in settlement contract. However, if the delivery of what was agreed is delayed more than usual; or it was required to deliver in cash immediately but is not done, the other party has the right to revoke the contract. The rest of the rights of having the choice to revoke the contract are applicable in settlement contract also.

CR # (921):- If the goods involved in a settlement are proved to be defective, it is lawful to revoke the contract, but compensating the difference of

ty 3

ISLAMIC

LAWS

OF

CONTRACTS

SOF

defective and without defect is objectionable. If in the settlement contract a condition requires to give the property involved in the deal in endowment for a certain cause which would serve the party or other people or a general cause in the lifetime of one party or after his death, it is valid and the condition is binding which must be kept. CR # (922):- Fruits and vegetables and plantations could also be used as subjects of the settlement contract, before they appear in one year without adding anything with it, even though, it is not lawful in selling as mentioned before. CR # (923):- If ’A’ has some goods worth twenty Dirhams and ’B’s’ goods are worth thirty Dirhams and they get mixed indistinguishably, if they solve it by means of a settlement, it is not objectionable, if the disputed goods are sold and the value is divided in required ratios, the owner of twenty gets two shares and the owner of thirty gets three shares. This is when both parties’

objectives are the value of property but if both parties want the substance of im goods, regardless of the value, in such case the only solution is by drawing ots.

THE BOOK OF PROFESSING

(IQRAR)

Professing in this context means one’s declaration and reporting of some one’s right due on him or negating the existence of one’s own right on others, such declaration could be made by means of any words that can express and indicate one’s intention according to common understanding even if they are not very explicit, even gestures and making known hints are enough. CR # (926):- For the effectiveness of professing, it is not necessary for it to be the first hand declaration or to be understood from one’s statement directly or indirectly, even if it is learnt from another statement in some indirect way still it is effective like if one says, ~the house where I live I had bought it from Mr. ’A’." This is an indirect professing of the fact that the house used to be the property of Mr. ’A’ and he claims its transfer to himself, likewise, is when one of the disputing parties makes a statement like it, it is a declaration that the property belonged to the other party before.

oe

The Book of Professing

(Iqrar)

558

CR # (927):- The professed matter must be of such a nature that if the professing party is true in his declaration, the party concerned must be able to enforce the consequences

of the declaration, thus, the subject of the

declaration must be a property as a debt on him, or a substance, a profit of a substance with him, some work, or right like the right of having the choice to revoke a contract, or Al-Shufa the right of way or real property easements or matters concerning utilities etc., otherwise, the professing is not valid like if one professes that he owes Mr. ’A’ the cost of some wine or because of gambling etc. CR # (928):- If one professes about some thing and then changes it with a different statement, if this is a change in the first statement, his first statement is effective but not the second like if he states, ~ I owe 20 dollars

to ’A’ and then says no, I owe him ten," he will be made to pay 20. But if it is not a change, and, in fact, it is an indication to explain his intention, the meaning of his whole statement is enforced like if he says," I owe to Mr. ’A’ 20 dollars minus five, this is a professing for 15 due on him only this much is

enforced. CR # (929):- It is necessary for the party professing to be mature and free, the professing of a child is not effective and enforceable. The professing of a dying person who does not recover, if suspected of acting against the interests of the heirs is only effective in the one third of his legacy. CR # (931):- If one states, " I owe him property," he is made to pay even if he interprets it as some property that he does not own, it still will not be accepted. CR # (932):- If one says," this is for ’A’, in fact, for ’B’," that thing goes to ’A’ and he has to compensate for it to ’B’. In matters of weighing and measuring or cash it will be decided according to the common practice and understanding in the town or according to professing person’s own

explanation if practice of the town would not be the same. CR # (933):- A professing about something does not apply to its container. A professing of debt payable after an appointed time does not entitle the creditor to demand immediately. If it is about either one of two quantities, the lesser or the larger, it is applicable only to lesser one. CR # (934):- If the professing party leaves the statement unclear if he then

clarifies it, it is accepted and if another party claims the subject of professing to be his, it becomes a dispute the other party can ask the professing party to

ISLAMIC

LAWS

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559

take an oath of not knowing if he claims that the professing party knows about it. CR # (935):- If the professing party first makes an under-statement and then clarifies or from the beginning clarifies but the party in whose favor it is made denies, if the subject of professing is a debt on the professing it has no effect, but if it is an existing substance, it is said that the high authority in Sharia takes it away from him, but according to a more clear reason, it is not taken away from him.

CR # (936):- If a seller of merchandise claims not to have been paid he has to establish enough testimony to prove it or make the other party swear that he has paid. CR # (937):- If one professes about someone as being his son, brother or sister etc., his statement is effective if it is possible that he could be true, as a

result he must observe the rules of maintenance and marriage or inheritance in the matter. Besides, there are certain other details about it, if it is about

one being his son, the relationship is established because of his professing , if it is possible for him to be true and no one disputes with him and the child is a minor in his custody; confirmation of the matter by the child is not needed and if the child denies after maturity it will not be heard from him, it establishes the relationship between them and their dependent. In matters other than a child, it has no effect, unless the other party confirms it, otherwise, no relationship is established. If the other party confirms the statement and if there is no other heir, they inherit each other, their inheriting with the presence of other heirs is objectionable, the precaution should not be ignored. The same rule applies to spreading inheriting to other than them, again precautionary rule should not be ignored, if he professes about a son etc, and then denies it. CR # (938):- If someone as an heir professes that another person comes before him in the order of heirs, he must give to him what he has already received as his share of the legacy. If it makes them of the same equal order they share it equally, if he says so in favor of two people who may deny it, they are not heard and the implications of the rule of professing is followed, but the dispute remains yet to be resolved, if he professes about one to be before him in the order of inheritance and then states another one to be the first, like first stating about- one to be a brother and then another one to be the son, if the first confirms it the legacy is given to the second, if not confirmed, he pays it to the first and compensates to the second.

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CR # (939):- If a son professes another person to be his brother and says that a third one also is his brother who denies the second to be a brother, the

third receives one half and the second one sixth. If their relation is known the denying party will not be heard The same rule applies if a deceased has left two sons one of whom professes a third one to be a son also and the second denies it, half of the legacy goes to the denying party, one third to the professing and one sixth to the one in whose favor professing is made. If the deceased has wife and brothers, and the wife professes one to be a son, if the brothers confirm, one-eighth of legacy goes to wife and the rest to the son. If her statement is not confirmed, the brothers receive 3/4 of the legacy one eighth goes to wife and the rest which is 1/8 goes to one in whose favor professing is made. CR # (940):- Blood relation is established by the testimony of two just people, the testimony of one man and two women nor the testimony and oath of one man is enough for this matter. If two brothers who are just people testify for one to be the son of the deceased, the son comes before them in the order of inheritance and blood relation is proved. If they are not just people, blood relation is not proved but inheritance is established if there is not a third brother, otherwise, their professing is effective only on their part not for the other one.

THE BOOK OF (WAKALAH) PROXY There must be an offer and acceptance by any means which indicates such deal like words or deeds etc. It is not necessary for the acceptance to quickly come after the offer. Also it is not necessary for it to be definite, a conditional one even if such a condition does not exist during contract is set or it is not known to take place during contract, apparently, is valid, and the agent can validly take charge when the condition is fulfilied.

CR # (941):- Proxy is an allowable deal from both sides but it is necessary when removing the agent to inform him, if the agent works before knowing of his removal his works are valid. CR # (942):- Proxy becomes void due to one’s death or when its subject is abolished and by the act of the principal, also because of principal’s getting mentally ill or fainting during his insanity but its invalidity absolutely, in this case, even after recovery from mental illness etc, is objectionable.

The

Book of Proxy (Wakalah)

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CR # (943):- Proxy is valid in all such matters wherein Sharia does not

require it to be personally done and such acts are discovered through the practice of the law abiding religious community.

CR # (944):- The authorized agent is not permitted to act beyond his limits in discerning the market, unless he knows that during the contract he had mentioned a certain market as one of the market places.

CR # (945):- If the principal gives general authorization of working, the agent works doing the best, it is valid in general except in professing. However, if one says to his agent, "you are authorized to profess as my agent in favor of so and so". This itself is professing for the same goal in favor of Mr. so and so. CR # (946):- A general authorization in proxy requires to sell only for cash and for fair market value with the currency of the place of selling, valid selling, giving possession of the merchandise, and to pay when merchandise is bought and returning the defective merchandise. CR # (947):- Appointment of an attorney to present one’s case before the judge is not authorization to take possession of some thing or vice verse.

CR # (948):- It is necessary that both the agent and the principal are capable to work and use, thus, it is valid to appoint a child as an agent in the jobs which he can lawfully by himself perform like being appointed executor of a will if he is ten years old, it is lawful for the child to be an agent even without the permission of his guardian. CR # (950):- The agent permission of the principal.

cannot

appoint

another

person

without

the

CR # (951):- Only the high authority in Shari’a appoints agents for the fools and simple-minded people. CR # (952):- It is preferable for the people of outstanding status to appoint agents for their tasks. CR # (953):- A non-Muslim tax-payer, according to the well-known views cannot become a Muslim’s agent, but according to a more clear reason it is permissible.

CR # (954):- An agent is not held liable, unless it is due to his neglect or respassing and it does not affect his proxy.

ISLAMIC

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562

CR # (955):- On oath in the absence of testimony about neglect and trespassing the words of agent are accepted, also in removing from the task and knowledge of the same and working the task. However, accepting his words in the matters of returning the merchandise is objectionable, according to a more clear reason they are not accepted. CR # (956):- If the agent claims that merchandise is destroyed, his words are accepted, unless he is accused of dishonesty, he is asked to support his claim by presenting testimony. CR # (957):- The words of the party who denies proxy are accepted and the words of the principal are accepted if the agent claims to have been authorized to sell for a certain price, if the substance is available it is pared if not available or is difficult to have it, its kind if not the value is refunded. CR # (958):- If one acts as agent to form a marriage contract and the principal denies appointing an agent he takes an oath for it and the agent pays half of her dowry and the principal, if he is false in his denying marriage, divorces her, if he did not divorce and the wife learns his lies she takes it to high authority in sharia to divorce her after ordering the husband to provide maintenance, and his refusal to do so.

CR # (959):- If two people are appointed as agents, one of them can work without the other unless there is some indication proving each one as independent agent. CR # (960):- Disputed proxy cannot be proved without the testimony of two just people.

CR # (961):- If the agent does not allow possession when it is possible despite demand he bears the liability. CR # (962):- Authorized agent is like owner the buyer and seller can ask him for merchandise and payment and goods are returned to him when contract is revoked because of defect etc. and he is asked for replacement.

CR # (963):- It is permissible to appoint a proxy for such tasks that the principal himself cannot immediately perform because of not having a Shar’i permission while such task in the meantime is subordinate to what he can legally do, like appointing to buy a house for him sell it or to form a marriage contract on his behalf, or divorce etc., but an independent proxy to buy a

ISLAMIC

LAWS

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563

house which he would own later or to form a marriage contract while the woman is still in her waiting period or divorce a woman whom he would marry etc., the validity of such proxy is objectionable but its validity is more

close to reality. It is lawful to have a proxy for tasks like taking possession or

letting to have possession when necessary like loans mortgages and currency exchanges and when not necessary like when he sells his house to ’A’ and appoints ’B’ to take possession of payment in these cases taking possession of the agent is like that of principal. It is not necessary for validity of proxy that the principal is not able to take charge of the tasks practically, thus, if one is not able to acquire his property from a usurper he can have a proxy who is strong enough to do so and what he does is as if the principal has done. CR # (964):- It is valid to have a proxy to reserve allowable properties, and if the proxy does reserve such goods for the principal it becomes the property of the principal not the proxy. CR # (965):- If one appoints a proxy to acquire a right due on someone and the party refuses to yield the proxy does not have to dispute or litigate to prove the right unless he is appointed for that purpose too. CR # (966):- One can assign a certain compensation for the proxy, but he can only have such compensations when he does the job for the principal, for example, in a task like buying and selling the proxy cannot ask for the assigned compensation before the deal is formed, however, he can ask for it before taking possession or letting to have possession.

CR # (967):- If one is made proxy to acquire a debt from a certain party who dies before paying off the debt proxy becomes void and the agent cannot demand payment from the heirs, however, if proxy is general enough to apply to collecting debts even from heirs, the proxy stands valid and effective.

BOOK

OF

(HIBAH)

GIFT

It means giving possession of some goods free. It is a contract which requires offer and acceptance which could be expressed by any means that would indicate letting to have possession through words or deeds or hints. No specified terms or language is needed and the same rule applies to acceptance.

The Book

of Gift

(Hibah)

564

CR # (968):- The person making gift must be mature, willing, free from eppeulsion of being supervised because of foolishness or bankruptcy or slavery. CR # (969):- One’s gift during his illness from which he dies is valid even if it is for more than one third of the legacy, likewise are his other dealings, like selling and making settlements etc. CR # (970):- Gifting owned properties even those commonly owned is valid. Also gifting things as loan to other than debtor to be valid is not far from reality and possession of such property is when it is received. If a loan is gifted to debtor it is simply waiving of the same. CR # (971):- It is necessary for the validity of gift to give possession which cannot be done without the permission of the donator unless he presents what is in his hands, it is not necessary to immediately give possession or that it take place in the same session it is lawful to delay giving possession from the contract for a long time whenever possession by the recipient takes place the gift contract is valid from the time of possession if the gift may have yielded profits from the time of contract until the time of possession it would belong to the donator not the recipient. If one presents two objects as gift but the recipient takes only one, the gift contract is valid for what is possessed not in the other. CR # (972):- The father and grand-father are guardians and they can take possession for the minors and an insane if he has reached the age of maturity,

but if he has become insane after reaching the age of maturity, the guardianship of accepting and taking possession is in the hands of the high authority in Shari’a. If the guardian gives gift to a minor or insane and the gift property is in the hands of the guardian he does not need to take possession. CR # (973):- Giving possession of gift in both moveable and immovable properties can take place by making it possible for the recipient to take charge, use and benefit from it.

CR # (974):- The donator cannot demand the gift from the recipient if the person is a relative, or it is already consumed or destroyed or that it was a gift in exchange for something, in case, the recipient is not a relative. After the gift is used by the recipient whether it is permissible to ask for return or not is disputed matter. According to a strong view it is permissible if the substance of gift is still available. If the gift being cloths are colored, or cut

and sewed or is given to someone

else, asking to give it back is not

ISLAMIC

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565

permissible but in other cases he can demand for return. If the gifted material is damaged he cannot ask for compensation. If there is an increase and it is separable, or it is not separable like tallness, fatness or ripening of fruits etc., such increases as subordinate to the original goes to the donator. CR # (975):- In the case of wife and husband a gift contract is binding. CR # (976):- If either the donator or the recipient dies before possession the gift contract is void; the gift goes to the heirs of the donator. CR # (977):- If either one of the parties of the gift contract dies after possession, the contract becomes binding the donator cannot ask the heirs of recipient for refund and the same rule applies to the heirs of the donator. CR # (978):- For the validity of asking for refunding, knowledge of the recipient is not needed the donator can decide to take it validly back without the recipient’s knowledge.

THE

BOOK

OF

(WASIYAH)

WILL

Will is of two kinds:

(A) Will for the transfer of property to a certain person or a cause after one’s death. (B) A task will in which one asks that certain things to be done for him, like things related to his body or property, like to be buried in a certain place at a certain time or that a certain amount of money be paid to fast or pray for him, or that a certain piece of property made an endowed property etc. If he specifies the executor and asks him for the task such person is appointed to carry on the task, but if he does not specify the executor and there is no indication to specify the executor, the high authority in Shari’a would be the executor of such will. CR # (984):- A task will does not require acceptance, regardless, one has appointed an executor of the will or not. In the will to transfer ownership, however, a will which says that this property will go to ’A’ after I die,

The

Book of Will (Wasiyah)

566

according to well known view it requires acceptance of ’A’ but apparently it is not required. CR # (985):- When one finds that death is approaching him he must make a will and let people witness it that his liabilities such as religious taxes, worship acts missed or due on him and his debts to people must all be paid. The obligations which do not have time limitations become of limited time when a person is not confident of being able to fulfill them if further delayed like the obligation of making up for the prayers or fasting missed in time or paying-off expiations or vows etc., and other such deeds, in such case, it is necessary to fulfill them. It is necessary to make a will and make it public according to a strong reason unless one knows that the heirs or others would do on his behalf. Apparently, it is not necessary to pay off immediately, other’s property with him in the form of safe-deposits, borrowed properties or profit-sharing properties etc., unless one is afraid that his heirs may not pay them off. It is necessary to make a will about it and make it public and arrange for witness to the will if paying would depend on it, otherwise, it is not necessary. The same rule applies to loans if the creditor is not demanding, otherwise, it is necessary to pay-off quickly even if there is no fear of dying. CR # (986):- In order to make a will effective to express it by words explicitly or implicitly or by means of deeds or writing or hinting, regardless, one still has the choice to select anyone of such means of expression or not even if a written will with one’s own writing and signature which would indicate one’s intention to be executed the will after his death. If one is asked whether he has made a will and he replies, ’no’ and there is testimony that he has made a will the testimony is accepted not one’s own report. However, if the ’No’ is intended to be a cancellation of the will such change of mind is valid. The same rule applies if the answer is, Yes’ and the testimony is against it if Yes’ is intended to create a will such intention is valid and the will is effective.

CR # (987):- According to the well-known view if the case of a will which transfers ownership of some parts of the legacy if the executor refuses to accept the will it causes such will to become void if it comes after testator’s death and the will was not accepted before but this is not free from objection if it was accepted before refusal and after one’s death or during one’s life time, such refusal has no effect, the same is the case with refusal during the testator’s life time. CR one for one

# (988):- If a will is made to transfer two things to a party who accepts and refuses the other, the will is effective for what is accepted and void what is refused with objection and the same rule applies if there is only thing of which some is accepted and some parts are refused.

an ale

ISLAMIC

LAWS

OF

CONTRACTS

567

CR # (989):- It is not lawful for the heirs to use the property to be transferred according to the will to someone before his accepting or refusing and the heirs cannot force him to decide immediately. CR # (990):- If the executor dies before accepting or refusing the will his heirs replace him who decide to accept or refuse if the testator does not change his mind regardless, such death takes place before or after the death of the testator.

CR # (991):- Apparently, the heir gets the bequest from his own legator if he dies after the death of the testator, first the debts are excluded from the

legacy and his bequest. The wife does not inherit from the land but she does inherit from the value of land if it is palm trees or buildings but if one’s legator dies before the testator, apparently, the heirs get the bequest from the testator himself, thus, is not dealt with like a legacy of one’s legator in both cases the heirs are those of the person in whose favor the will is made not those after the death of the testator. If the heir too dies before the death of the testator; transfer of bequest to his heir also is not free from objection, although transferability is more clear. CR # (992):- If one makes a will to someone asking him to transfer some of his legacy to another person can the above rule of the transferability of the bequest to heirs apply in this case too, if he dies during the life time of the testator it is objectionable; applicability is more clear.

CR # (993):- The testator must have the following qualification:(A) He must be mature, the will of a child is not effective before he is ten years old and has understanding and his will is in virtuous matters in favor of his relatives, for other than relatives is objectionable.

(B) He must be of sound reason, the will of an insane and unconscious and drunk during such condition is not valid, if one makes a will when he is mentally sound then becomes insane, drunk or unconscious, his will does not become void taking intelligence as a condition also is objectionable but the precautionary rule should not be ignored (C) The testator must be free from compulsion; the will of a person forced is not valid.

(D) Freedom from slavery.

The

Book of Will (Wasiyah)

568

(E) He must not be a fool, a person of unstable mind who is not able to distinguish what is for his interests and what is not. (F) The testator must not have taken his own life if he makes a will after doing something to himself which causes his death, his will is not valid if it is about his property, but if it is about certain matters of his funeral etc., it is valid. His will is also valid if he has done to himself lethal things by mistake or not intending it to be lethal or as obedience to Allah, like fighting for the cause of God. The same rule applies if he recovers and then makes a will, apparently, the will is valid so if he makes a will after doing some lethal things to himself then recovers and then dies. CR # (994):- If one makes a will before doing something lethal to himself and then dies because of such thing his will is valid even if the lethal act takes place during making the will intending it (the lethal act ) to take place soon after.

CR # (995):- Father and grandfather’s making will regarding the guardian for a minor is valid if one of them (father or grand-father) does not exist but with the other’s existence it is not valid. CR # (996):- It is not permissible for the high authority in Sharia to make a will appointing thereby a guardian after his death for a child, after his death the matter goes into the hands of the next high authority in Shari'a. CR # (997):- If one makes a will of transferring some property to a child of his relatives or another child, but lets it to be managed by someone other than father, grand-father or high authority in Shari’a, such will is not valid, in fact, the task goes to either, father or grand-father if they do not exist the high authority in Shari’a is in charge of the matter. However, if he wills that the bequest stays with executor of his will until the child is mature and then he is given possession, such will is valid. The same rule applies, if he wills to spend for a child without giving possession to him.

CR # (998):- It is permissible for the father and grand-father to will and appoint thereby one or more people as guardians and custodians of children, as well as supervisor over the custodian who supervises and guides as it will be discussed in details later.

CR # (999):- If the testator says to someone "you are the guardian and custodian of my minor children and my grand-children, and does not mention any limitation it is permissible for such guardian to deal with all of the affairs

ISLAMIC

LAWS

OF

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569

of the children like looking after them, educating them, protecting their properties, spending for them, paying off their debts and their liabilities etc. CR # (1000):- If the testator sets certain limitation on the guardianship,the guardian must not exceed such limits and the rest of their affairs require supervision of the high authority in Shari’a.

CR # (1001):- It is lawful for the custodian to receive fair market value wages for his work if they need wages and he is poor but if he is rich, receiving payment is objectionable according to precautionary rule he should not receive payment.

CHAPTER ONE BEQUEATHED.

(MUSIBIHD

THE

CR # (1002):- The bequeathed must have lawful and reasonable benefits, regardless, it is an existing substance or non-existing which is expected to exist like the unborn young of animals or the benefits of an existing substance or not existing but is expected to exist, or a right which could be transferred like the right of reservation etc., not like one’s right of accusing (of adultery) etc., which cannot be transferred to the person in whose favor a will is made,

the beneficiary of the will. CR # (1003):- If one makes a will to give some wine for example to ’A’, a wine which could be turned into vinegar or that which is benefited from but not as drink or the will is about tools of useless activities, if they could be

used in lawful manner like after changing them for example, the will is valid. CR # (1004):- The bequeathed property must not be more than one third of the legacy, otherwise, for the excess amount it is not valid unless the heirs allow, if some allow and some don’t it is effective for the share of those who allow it, if they all allow in some of the bequeathed but not in others it is valid in what is permitted and void in what is not permitted. CR # (1005):- There are no difficulties if permission is given by heirs for more than one third after the death of the testator but about giving such

permission during the life time of the legator there are two views; according to the stronger one such permission is good.

The

Book of Will (Wasiyah)

570

CR # (1006):- Those of the heirs who have given such permission cannot change their mind during the life time of the testator nor after his death, likewise, is disallowing after giving permission. CR # (1007):- The will is effective whether it takes place during one’s illness or when he is well, the heirs are poor or rich.

CR # (1008):- It is not necessary for the effectiveness of a will that the testator decide it to be taken out of the 1/3 of the legacy which is permitted in Shari’a, if it is done without such decision and it is equal or less than 1/3 it is valid. CR # (1009):- If one bequeaths one third of his legacy and then bequeaths something intending it to be from the two thirds of the heirs, if they permit the second will is also valid, otherwise, it is void.

CR # (1010):- If one bequeaths a substance and intends it to be out of the whole legacy, the will is effective for its one third, and other 2/3 depends on the permission of heirs like if he says my horse is for A’ and one third of the rest of my legacy is for ’B’ his will is valid in favor of ’B’ but in favor of ’A’ is valid only if the heirs allow, otherwise, it is effective only in 1/3 of the horse the rest goes to heirs. CR # (1011):- If one bequeaths a substance to someone out of his legacy without any mention of one-third of legacy if such substance is not more than 1/3 it is effective, if more, the extra depends on the permission of heirs.

CR # (1012):- If one bequeaths a certain substance out of his legacy or something in general like a thousand Dinar, it must be studied to find out whether it is more or less than or equal to 1/3 of legacy at the time of the testator’s death not the time of forming the will if he has bequeathed something like half of his legacy to ’A’ and at the time of his death it becomes like 1/3 of the legacy due to change of prices or increase in the property which did not exist at the time of forming the will, the will is valid for the whole of such substance. CR # (1013):- If the bequeathed substance is equal to 1/3 of the legacy and it becomes more than 1/3 at the time of testator’s death due to increase of its

value or decrease of the values of other properties or because of using up of some of his other properties, the will is effective to what is equal to 1/3 and void for more than 1/3 unless the heir allows.

ae ) aay

e

ISLAMIC

LAWS

OF

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STL

CR # (1014):- If one bequeaths a common ratio like 1/3 of the legacy, if at the time of death is equal to 1/3, there is no objection about the validity of the will, and also if it is less then a 1/3 at the time of death. If at the time of death the 1/3 of the legacy becomes more than 1/3 at the time of forming the will like there being an increase in the property, thus, it is necessary to take out the 1/3 of the increase or just give away 1/3 of legacy of the time of forming the will?, which is not free from objection, although according to a strong view it is necessary to give away the 1/3 of the increase also unless there is some indication which tells that only 1/3 of the existing substance of legacy at the time of forming the will is to be given away, if the substances are changed there is no need to give away or there is enough indication saying that only 1/3 of the legacy existing at the time of forming the will must be given. Also if the statement-of the will is not clear in such a case what must be given is the lesser amount. CR # (1015):- All that belongs to the testator after his death is part of legacy, like blood money for a person slain by mistake or deliberately and the heirs reach a settlement about it, or whatever that he had invested now brings in profits all become part of legacy and 1/3 comes out of all these.

CR # (1016):- If one bequeaths the substance of a certain property which is more than 1/3 of the legacy in his life time and with adding blood money etc., it becomes equal to 1/3 of legacy the will is effective for the whole 1/3. CR # (1017):- The 1/3 is taken out only after excluding all financial debts when all such pay-offs are made thoroughly then 1/3 is dealt with according to the will. CR # (1018):- If a creditor after testator’s death waives the debt payable from the legacy or someone volunteers to pay, such debts are not excluded from the legacy, it is like as if there are no debts.

CR # (1019):- In bequeathing more than 1/3 of the legacy it is necessary that the heirs approve the will to be executed; only agreeing in their mind is not enough. CR # (1020 ):- If the testator specifies 1/3 of the legacy in a certain substance it must be done likewise. If it is left to the executor who specifies it in a certain substance this also must be accepted and it does not need the consent of the heirs if he, the testator, does not do anything the 1/3 remains as common ratio of the whole legacy and the executor cannot specify it in a certain item also do nothing without the agreement of the heirs.

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CR # (1021):- The financial liabilities are excluded from the whole legacy even if no will is made about them such liabilities are those like loans,

payment for purchase of properties he had purchased to be paid for after an appointed time, the compensations for liabilities etc., of which are Khums, Zakat and Mazalim expiations, remedial of misdeeds and wrong-doing, but

the expiations in general and vows etc, apparently, such payments are not made from the whole legacy.

CR # (1022):- If some parts of legacy are destroyed after the death of the testator, it is necessary to pay off the financial obligations from the remaining legacy even if it takes the whole legacy; the same rule applies if someone usurps some parts of the legacy. CR # (1023):- If some of the heirs oppose paying off the liable for such payments as are the rest of heirs. If others they do so with the permission of high authority in Sharia refusing heirs to pay his share, but if they paid without the high authority their demanding from the refusing party objection.

debts his share is pay such debts if they demand the permission of the is not free from

CR # (1024):- The expenses of obligatory HAJJ on the basis of required qualification are like the other debts are paid-off from the whole of the legacy, the expenses of HAJJ because of a vow are paid from the 1/3 of the legacy.

CR # (1025):- If one makes several wills each opposite to the other to execute the second is must and it cancels the first, if a specified substance is bequeathed to ’A’ then to ’B’ it must be given to ’B’ the same rule applies if one third is given to ’A’ and then to ’B’.

CR # (1026):- If 1/3 is bequeathed to ’A’ than 1/6 is bequeathed to ’B’ 1/3 goes to both in equal shares.

CR # (1027):- If a specified substance is bequeathed to ’A’ and then 1/2 of the same thing is bequeathed to ’B’ the second cancels the first by half which is equal to the amount of the second bequest. CR # (1028):- If several wills are made not opposite to each other but of the same nature to be paid from the whole legacy it is necessary to pay them off from the whole legacy even if it is more than 1/3.

CR # (1029):- If several wills are made to cover the cost of such obligations that are not deductible from the whole legacy like prayer, expiations and

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vows such bequeathed items are paid for from the 1/3 of legacy if such costs exceed 1/3 and the heirs allow it to be paid from the legacy it is done so, otherwise, the obligations are reduced proportionately, regardless, the wills are made by certain orders like testator’s words saying,” 20 months fasting and 20 years prayer to be paid for," or they are not orderly like his saying, “pay for all my worship acts -fasting and praying -of my life time." If the cost of such obligations is equal to 1/2 of legacy, if the heir allows, payment is made from the legacy, otherwise, the obligations are cut to size proportionately like 1/3 of fasting and 1/3 of praying etc. The same rule applies if the causes are optional if the cost exceeds 1/3 and the heirs also allow it such costs must be paid for, otherwise, the causes are reduced

proportionately. CR # (1030):+ If there are several wills of different nature some are to be paid for from the whole and others cannot be paid for from the whole legacy like the will which says, "pay 60 Dinars, 20 for zakat, 20 for prayer and 20 for fasting, if they are not more than 1/3 they are all paid for from 1/3 or the 1/3 does not cover but the heirs allow payment. If the 1/3 does not cover and the heirs do not allow 1/3 is divided on all obligations and those that could be paid for from the whole legacy are paid for from it in a supplemental way. If a deceased legacy is 100 Dinars 10 Dinar zakat is deducted, 30 Dinar, 1/3 of 90 Dinars are divided on prayer, fasting and zakat, 10 Dinars for each. The same rule applies if some matters are obligatory and others are optional. However, if supplemental payment cannot be taken from the whole legacy it must also be made from the 1/3 of legacy. CR # (1031):- If there are various wills some about obligatory matters and some for optional causes none of which could be paid for from the whole and 1/3 is not enough for all and the heirs do not allow payment, giving priority to obligatory ones over optional ones is objectionable, and disputed, apparently, priority must be given to obligatory ones. CR # (1032):- Will for optional causes is will for such cause that are not obligatory for one during his life time, regardless, it is of the nature of transferring ownership or covenant ( or task will ) which requires payment for certain causes.

CR # (1033):- If the will says 1/3 of legacy goes to ’A’ but does not specify any substance. ’A’ shares 1/3 with the heirs. He gets 1/3 and all heirs 2/3. If some of legacy is destroyed all pay the loss and the benefits are shared in the

same way.

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CR # (1034):- If one bequeaths 1/3 of legacy for his own good like certain worship acts; the 1/3 remains in his possession if something is destroyed from the legacy the heirs and he all share the loss proportionate to their shares and the same rule applies to profits. CR # (1035):- If one specifies the 1/3 of legacy in a certain substance, as mentioned earlier, if some growth takes place in it, it belongs to him only if all of it or some of it is destroyed, it is his loss, not the heir’s loss. CR # (1036):- If one makes a will about 1/3 of the legacy as its common ratio then makes a will about another specified item like if he says spend for me 1/3 of legacy and give my horse to ’A’. It is necessary to exclude the 1/3 of legacy not including the horse, and about 1/3 of the horse the will is effective in favor of ’A’. Effectiveness of will for the other 2/3 of horse depends on the permission of heirs; it is void if they did not allow. If the other item besides the 1/3 is not specified like if he says," spend for me 1/3 of legacy and give 100 Dinars to ’A’ the effectiveness of will partially or as a whole 100 Dinars depends upon the permission of the heirs who may allow the whole or some, if all of them agree or only few people among them do so the will is effective to what is allowed by heirs, likewise is if the will says,~ give 1/3 to ’A’ 1/3 to ’B’, it is good for ’A’s 1/3 but ’B’ 1/3 needs the permission of the heirs. If the will says, "give 1/3 to ’A’, and also says,” give 1/3 to ’B’, the second cancels the first, as mentioned it depends upon the indication of a statement. CR # (1037):- A will about disobeying Shari’a is not valid thus if one makes a will to help the unjust oppressor or for propagating falsehood, like the sale and distribution of misguiding literature, such will is void.

CR # (1038):- If the cause for which the will is made is lawful to the testator due to his own jurisprudential view or because of the view of the scholar whom he follows and it is not lawful to the executor of the will due to the some reasons, the executor is not allowed to deal with such will. If the case is

just the opposite of this the executor of the will must do his task. CR # (1039):- If the will deprives some heirs from the legacy if they do not agree with it the will is void. However, in such-a cases if he has not made any will about the 1/3 of legacy then it is necessary to execute the will about the 1/3 as a result if the legacy is 6, and the testator has two sons since ’A’ is deprived by the will and with a view to 1/3 ’A’ receives ’2’ and ’B’ who is not

deprived receives ’4’ out of 6. If 1/6 according to the will must go to ’B’. ’A’ receives 1/3 and In goes to his brother.

.ie aA

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CR # (1040):- If one makes a will about the property of after the testator dies such will is not valid even if ’A’ allows it. If it is said to be after the death of ’A’ and ’A’ allows it such will is valid.

CR # (1041):- If an item is bequeathed to ’A’ and then to ’B’ as mentioned before the second cancels the first and the item goes to ’B’. If in the same case it is not known which one was first ’A’ or ’B’ the case is decided by lottery. CR # (1042):- If one gives some property to another person and says, "when I die spend it for me" and it is not known whether it is less or more than 1/3 or equal, or it is known that it is more and he thinks that the heirs allow it or knows that the heirs do not allow, but it is possible that there is some Shar’i reason which makes it necessary to exclude from the whole legacy, in such case. Is it necessary for the executor of the will to execute such will until it is proved to be void?, there is some objection in it, especially in the last two possibilities.

CR # (1043):- If some property is bequeathed to ’A’ but is it the lesser or more amount?, one can consider the lesser amount enough, but if they are two different items it is decided by lottery.

CHAPTER TWO THE RECIPIENT OF THE BEQUEST (MUSILAHU) CR # (1044):- Apparently in a covenantal will to bequeath in favor of non-existing is valid if its coming into existence is expected in future like bequeathing something to children of one’s children who are not born during formation of will or at the time of death of the testator. The property bequeathed in this way remains under the ownership of the testator, if they are born it is given to them, if not it is spent for the causes close to the objectives of the testator.

CR # (1045):- In a will of transfer of property bequeathing for non-existing is not valid until the death of testator. CR # (1046):-If one bequeaths some property to an unborn child, if he is born alive the property is his, otherwise, the will is void and the property goes to the testator.

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CR # (1047):- Bequeathing is valid in favor of non-Muslim tax-payer, a non-Muslim in the state of war with Muslims, a slave and a slave girl who is the mother of one’s child etc.

CR # (1050):- If one bequeaths some property to a group of people, all male, or all female or mixed, they all share it equally, unless there is some indication for the property to be divided not all of the same amount.

CR # (1051):- If one bequeaths for his relatives, sons, daughters, uncles and aunts, they all share, everyone receives the same amount, unless there is some indication, otherwise, which requires to divide differently.

CHAPTER OF WILL

THREE THE (WASSD

EXECUTOR

CR # (1052):- It is lawful for a testator to appoint someone to execute his will and such person is called executor of the will. The following conditions must exist with the executor of will. (A) Maturity; according to well known view to appoint a child alone as an executor of the will is not valid if it is intended that he alone works out the job during his childhood but this is not free from objection. However according to a precautionary rule he should work by permission of his guardian or the high authority in Shari’a alone. If it is intended that he undertakes such work after his maturity or with the permission of his guardian, apparently, the will is valid. To appoint a child along with a mature person is lawful, regardless, it is intended that he must not work before the maturity of the child or do so alone before his maturity, in the first case if there are cases that require immediate attention such as due loans such works must be done by the permission of high authority in Shari’a. (B) Soundness of reason; thus, an insane cannot be appointed as the executor of the will during such illness, regardless, the illness is there all the time or only sometimes. If one is appointed as executor of the will when he is well and then he becomes insane the will also becomes void, if he recovers

the will’s validity also returns according to a more clear reason, if the testator makes his recovery a condition then there is no objection. (C) To be a trustworthy person.

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CR # (1053):- Apparently, it is not necessary for an executor of a will to be a just person; only his reliability and trust-worthiness is enough. This is in matters of others’ rights like payment of debts and dealing with the property of orphans but if such matters are related to his own person, like if it is willed that the executor must spend 1/3 of the legacy for good causes, in such case, to consider reliability as a condition for the executor is objectionable. CR # (1054):- If the executor of will apostatizes, the will becomes void, due to being a Muslim a condition in the matter the appointment does not return to him if he may de-apostatize, unless the testator has set it as a condition for re-appointment. CR # (1055):- If a just person is appointed as an executor of will who then loses his ability to be a just person, if there is an indication of justice being a condition, the appointment is void if there is no such indication it is not void, the same rule applies to reliability. CR # (1056):- Appointing a slave as executor of will is not valid except by the permission of the master or to make it conditional on the slave’s freedom. CR # (1057):- Appointing a female detestable and so is a blind or a heir.

as executor

of will is lawful but

CR # (1058):- If a child and an adult are appointed executors and the child dies before maturity or matures insane, about the lawfulness of the adult to be executor alone there are two views, the more cautious view requires the matter to be referred to high authority in Shari’a who will add another person with him for the job. CR # (1059):- It is lawful to appoint as executor of will more than one person with others or each independent of other. If the first case is true then no one is allowed to deal without others with the whole or some of the matters. If one such group, because of some good reason, is disqualified the high authority in Shari’a replaces him with another person. If the second case is true each can deal alone and the deal taking place first is effective, if both take place at the same time and are of different nature like one sells and the other buys both are void. If one of them is dropped the other independently works without Shar’i authority’s adding anyone with him. If the appointment is general and there is no mention of working together or independently it will be considered a joint appointment unless there is indication otherwise like one’s saying, “executors of my will are A’ and ’B’ and when they die then is ’C’. If one of them dies the rest becomes independent and there is no need

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for high authority to appoint and add any one else with them, the same rule applies to the supervisors of endowed property. CR # (1060):- If one says,n ’A’ is executor of my will if ’A’ dies then ’B’ replaces him it is valid they both successively are executors, the same rule applies, if one says," executor of my will is ’A’ but when my son matures he is the executor." CR # (1061):- It is lawful to appoint several people each for a specified job independent of the other as executors. CR # (1062):- If two people are jointly appointed as executors and if they dispute because of different view. If such view does not prevent one of them particularly from taking part jointly in the job the high authority in Sharia forces him to join the other if it does prevent both from working jointly the high authority forces both to work jointly, if such view prevents both from working jointly the high authority joins one of them and lets him execute the will not the other. CR # (1063):- If one says, "I bequeath such and such and appoint ’A’ as executor if he continues his studies, it is valid and if he discontinues his studies the appointment becomes void and the high authority undertakes executing the will.

CR # (1064):- If the executor loses the ability to do the task the high authority in Shari'a makes another person join him, if his dishonesty is discovered the high authority lets a trustworthy person stop him from treachery if such person is not available, the authority removes him and appoints someone else for the task. CR # (1065):- If the executor dies before completing the task the high authority appoints someone else in his place. The same rule applies, if he dies during the life-time of the testator who did not know about the death or knew but did not appoint anyone else and there is no proof of changing his mind about first will.

CR # (1066):- The executor of the will does. not have the right to appoint someone else to execute the task which he is supposed to do, unless the testator has authorized him to do so or there are some indications that what the will requires is to do certain tasks not that the executor must personally do them.

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CR # (1067):- The executor of will is trustworthy. He does not become liable except if there is neglect or trespassing on his part. If misdealing takes place, one is liable only for that instance to consider him liable for other instances where misdeeds has not yet taken place, is objectionable, apparently, there is no liability. CR # (1068):- If the testator specifies a certain task for the executor or a certain amount of work, he must keep within that limit and not exceed, if he did, it is a misdeed. If he is given general authorization, like saying "exclude 1/3 of legacy and spend it." The executor will do so according to his own discernment in which he must take into consideration the interest of the deceased not what he desires with no regard to what is good for the testator or there are priorities which are also easier to do, according to common practice, such priorities and interests differ from person to person perhaps,

performing worship acts for precaution are more rewarding or paying-off financial liabilities that are based on precautionary rules or praying or fasting or giving charity or medical help etc. This is when there is no indication of a certain cause to be served, otherwise, that particular purpose must be achieved. CR # (1069):- If one says, "you are executor of my will and specifies nothing and nothing specific could be understood from it the will is void unless common understanding and practice play some discerning role like the understanding of people in IRAQ that an executor of will excludes 1/3 of legacy and spends it for the benefit of the deceased, pays his debts, acquires his credits and rights from others, returns the safe-deposits with him and collects what belongs to the deceased. However, to include appointing a custodian for the minors in the above matter is objectionable, according to precautionary rule one should not deal with their affairs before consulting the high authority in Sharia and his permission, if he has not yet appointed

someone else for the task. CR # (1070):- If one learns that some one has appointed him as the executor of his will he can refuse to accept the appointment during the lifetime of the testator if he - the executor - informs him of his refusal. If he learns about it after the death of the testator or before his death but does not inform him, the testator, of his , executor’s, refusal or that it is not possible to appoint

someone else according to a precautionary rule, after his death it is not lawful to reject the appointment. CR # (1071):- Refusing of appointment before the will is made has no effect, if 7A’ say, to ’B’," I refuse to accept if you make a will to appoint me

executor." If ’B’ appoints him executor later it becomes binding unless ’A’ rejects it at that time.

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CR # (1072):- If one is appointed executor who rejects the appointment and it is done again and it is not rejected due to not knowing it, there is some _ ground for it to be binding but it is objectionable, apparently, it is not binding. CR # (1073):- If the testator finds it better to appoint certain people with experience in certain tasks he can do so like for prayers to be made a person of knowledge, in the field for construction a person of that field and for charities a person who knows the needy.

He can choose one qualified for all such tasks. Sometimes the testator may not make a will for specific tasks; he may only ask to exclude the 1/3 of legacy and leave the manner and amount of spending to the discernment of executor and then he finds people qualified

for the task like many executors who find Mujtahids and gives the 1/3 to him who they trust, therefore, to will an executor is to give him supervision of such dealing, even though it is done indirectly. It is, thus, lawful for executor to appoint someone else to do the task unless there is proof that the testator wants him to personally do it in which case, appointing of others is not permissible. _ CR # (1074):- The executor cannot appoint someone else in his place in the sense of removing himself from the post and let the will be for him, thus,

someone else becomes executor of the deceased will by his making it happen. CR # (1075):- When executor’s task becomes void due to some missing conditions the high authority assigns someone else in his place or himself does the task and the same rule applies if a will is made but no executor appointed.

CR # (1076):- If the executor forgets the causes to be served and is unable to find out, he spends on good causes that possibly can be the causes to be served with the property of the testator. This is when such causes are not - limited but if they are limited such spending is objectionable it is possible to decide by lottery. CR # (1077):- It is lawful for the testator to appoint also a supervisor over the executor of will to oversee his dealings, evaluate his performance and guard his activities and give the supervisor a status as such that executor, would not work without his knowing what is going on and working without

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his information would be equal to working without the permission of testator and a misdeed against him and if he works with his knowledge of the same it would be fulfilling his obligation. It is not necessary for executor to follow such supervisor’s own view and ideas, if the executor wants to get a job done by ’A’ because of the will the supervisor wants it by ’B’ because he thinks ’B’ is better, this does not harm the validity of ’A’s work and the supervisor cannot object to it. If the will says it must be executed according to the supervisor’s view it is necessary to do so, thus, in the above example ’A’s work is not acceptable, ’B’s work must be accepted but this is against having supervisor over executor. Apparently, if executor commits misdeed it is not necessary for supervisor as a supervisor to stop him, in both cases, if he did not stop the executor he is not liable. In both cases ifthe supervisor dies the executor must consult high authority in Sharia.

CR # (1078):- Making a will is an allowable act on the part of the testator. If he bequeaths something he can change his mind and bequeath another substance. CR # (1079):- If one appoints someone as executor he can change his mind and appoint another person. CR # (1080):- If one bequeaths several things he can change his mind about

ali of them or some of them as well as change all or some of them as long as he is alive and he has the qualifications necessary for a testator like maturity etc.

CR # (1081):- If one appoints an executor and then another without informing the first about the change before he does and the first executor does his duty then learns about the change the loss is the deceased liability and it is taken from the whole legacy before any division takes place; then 1/3 is taken from the legacy for the second executor. This is when there is no apparent reason for the change, if there is some reason like first executor’s leaving to a distant place or emergency or animosity and serious differences between the two and thus the change takes place, in this case what the first executor spends is from his own property.

CR # (1082):- Changing one’s mind about a will can be expressed in i words like saying," I changed my mind about ’A’ to be my executor," or deeds like for bequeathing 1/3 first and then turning it into endowment property or like bequeathing to make an endowment property or spend for a cause and then selling it or giving as gift.

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CR # (1083):- Executing a will does not require passing of a long or a short time. If soon after making a will one dies it is necessary to execute the will; as well as if one dies several years after making the will. It is necessary that the testator does not change his mind, if one is not sure of such change, one must assume that no change has taken place. CR # (1084):- If one says," If I die on this journey my executor is ’A’ and my will is x,y, and if he did not die on that journey but at other times it is not necessary to follow such will and no one is his executor. CR # (1085):- If the reason for a will is journey on which one is afraid of dying, it becomes necessary to carry out the will even if he does not die on that journey, thus it is necessary to execute ’Hajis, Pilgrims, will or people going to visit Holy Shrines, such people, apparently, make a will because of fear of dying on such journeys, it is necessary to execute their will if they do not come back home.

CR # (1086):- It is lawful for the executor of the will to charge fair market value wage for his work if it needs wages, unless the will says that the work must be done free or there is some such indication in which case charging for works is not permissible if he had accepted the appointment, but if he did not accept, to consider working free necessary, is objectionable. It is very possible that it is not necessary. This is for the works that the will requires him to do like buying and selling and paying off debts etc., the works which are matters under his authority. If the will asks for other work like asking ’A’ to do HAJJ, or pray for him etc, it is not necessary for executor to accept the appointment even if he did not know of it during testator’s lifetime, if he accepts it in his lifetime, if the will asks him to do HAJJ, for example, free, it is very possible that it can be lawful to reject it after the testator’s death. CR # (1087):- If a certain amount of wages is set aside for him, the executor, and the will says," do HAJJ for me for 100 Dinars. It is hiring, and it is necessary to do it and he will have the wages if he accepted the job duunlawful to her own husband. The same is the rule if either one of two co-wives breast-feeds each other’s grand-child or breast-feed her uncle or aunt from her any parent’s side,she does not become unlawful to her own husband even if he,in this case, becomes father of her uncle or aunt. Also the same is the rule if she breast feeds her own bother or sister of her husband in which case she is the mother of his brother or sister. She can breast-feed the

grand-son of her husband to become the mother of his graf transferring

property can be proved by the testimony of two just Muslims or by the testimony of one just Muslim and the oath of the beneficiary in his favor, and by the testimony of one just Muslim and two just Muslim ladies like all other court cases.

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CR # (1089):- One special matter in the will for transfer of property is that it can be proved by the testimony of the ladies singly, thus, 1/4 is proved by the testimony of one just lady and so on four ladies’ testimony proves the whole without oath. CR # (1090):- The covenantal will which is a will about guardianship it can only be proved by the testimony of two just Muslims. CR # (1091):- Both forms of will can be proved by the testimony of two male non-Muslim followers of the Bible who are just according to their own religion, when just Muslims are not available, other non-Muslims do not prove anything.

CR # (1092):- The will of transfer can also be proved by the professing of all the heirs if they are of sound reason and mature, even if they are not just ones. If some of the heirs profess and not others it is proved in the share of professing ones not in that of denying ones, however, if two just ones among them profess the entire will is proved, if only one just among them professes the will is proved with an oath by the beneficiary. CR # (1093):- The covenantal will is proved by the professing of all the heirs, if only some of them profess it proves only some of the will proportionate to the ratio of that heir’s share, which is deducted from his share also. If two

just ones among them profess, the whole will is proved.

CHAPTER MARID)

FOUR

(MUNJZATIL

Limits of Effectiveness of Will Made In One’s Death Bed.

CR # (1094):- If one during his illness, from which he dies, executes certain

matters if such dealings are not like gift giving, but is like selling for fair market value or rents a property for fair market price, there is no objection in it and it is necessary to let it work. If the dealings are like gift giving, free grants etc., like waiving a loan, giving a gift for free without anything in exchange or a gift in exchange for something of less value or selling for less than its actual price or rent etc., which causes a loss in his property, apparently, such dealings are effective like his normal dealings when he was

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not ill. The view that says such dealings are only in 1/3 of legacy and for anything more 1/3 is not effective without the permission of heirs, is weak. CR # (1095):- If one professes about a substance or debt in favor of an heir or some other person, if the professing person is trustworthy and truthful the professing is effective and it is taken from the whole legacy. If he is accused of dishonesty, it is effective only in 1/3 of legacy. This is if the professing takes place in one’s death bed but if it happens when he is well and normal or not in death bed, it is taken from the whole legacy even if he is accused. CR # (1096):- If one says,this will be an endowment property after I die etc." which makes it the unilateral contract conditional on death it is void and not valid even with the permission of heirs. CR # (1097):- Formation of a unilateral contract conditional with one’s death is valid in only two cases. (a) Formation of will of transfer of property. Formation of covenantal will to appoint a guardian or executor.

(b) Formation of will of setting slaves free. CR # (1098):- If one says," I sold or rented, made a settlement or made endowment to become effective after my death, it is void and the rules of will to sell or make endowment etc, which makes it necessary for the heirs to sell or make endowment after his death do not apply to it, unless it is understood from his statement or proved that he wanted to make will for selling or making endowment, in which case, the will is valid and a must to execute.

CR # (1099):- If he says to the debtor saying," I waived what you owe me after I die," and the heirs approve it after his death, the debtor becomes free of obligation, permission of heirs by itself is their agreeing to waive their

rights and freeing the debtor of the obligation.

THE

BOOK

OF

ENDOWMENT

(WAQAF) It means reserving the original and making the benefits charitable. CR # (1100):- For the formation of a unilateral contract of endowment only having the intention of doing so is not enough, it is necessary to create such

The Book of Endowment (Wagqat)

585

contract by words, like, "I made it an endowment, restricted it to be used for

A, B, and ’C’ purposes, etc, any such expressions that indicate one’s intention. CR # (1101):- Apparently, such contract can also be formed by means of just give and take deals like giving some furniture or things to the supervisor of mosque or a shrine to be used therein etc., in fact, it can even take place by deeds without any give or take, like building or repairing some part of a mosque, if such donator dies his donation does not go to his heirs as part of his legacy only because he had not formally created unilateral contract. CR # (1102):- Sometimes the beneficiaries of endowment are specified and sometimes it is only the tittle like a mosque in which beneficiaries are not specified by the donator, thus, such endowment has no beneficiary in the formal sense.

CR # (1103):- If the donator has a certain kind of benefit in mind like prayer and recitations etc., like other forms of worship acts and says, “I make this place an endowment property for worshippers or reciters etc.n, such place does not become a mosque and the rules of mosque do not apply to it, it only becomes and endowment for prayer etc., thus, it is an endowment of the kind

of specified beneficiaries in which the donator has given due consideration to beneficiaries, thus, it is of the first category of endowment which has the following forms. (A) That the benefits of the endowment go to the beneficiaries and it becomes their property like one’s saying," I make it an endowment and the profits whereof will become the property of my children or this garden is an endowment for my children so that the fruits will be their’s, profits and fruits will be their property like their other properties which they can give in exchange for other property and their heirs can inherit and they will be liable for possible liability that may emerge from such properties and each one must pay Zakat if each one’s share has reached the standard quantity for payable of Zakat. (B) That the benefits go to beneficiaries but not as their own property, thus, the beneficiaries cannot

exchange their share in selling etc., and there is no Zakat on them even if it is standard quantity and no one can inherit if the beneficiaries die before spending the benefits but the benefits could make one liable when reason for liability is present and this (B) section is of two kinds:(A) That the benefits specifically and directly are spent in favor of beneficiaries like saying, "I make this tree an endowment

and my children will use its fruits, in such a case,

even the guardian is not permitted to change or exchange, he spends only the fruits there-of on them so they eat. (B) That benefits are intended to be spent in a general sense either in substance or its value like saying, "this garden is endowed for my children, the benefits, therefrom, will be spent for them either in substance or the produce of the garden or they are exchanged for other food materials and other things needed. (C) That the donator intends

ISLAMIC

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the endowment to be benefited from by the beneficiaries themselves, like public guest houses, schools books, text-books, prayer books etc. CR # (1104):- However, apparently, in all kinds of endowment contract acceptance is not required although according to precautionary rule (it), acceptance, should exist, especially when the endowment allows the beneficiaries to own the benefits, regardless, it is the beneficiaries like scholars or particular beneficiaries like donator’s own children, in the first case, the high authority undertakes the acceptance role and in the second case the first generation of the beneficiaries do it. CR # (1105):- Apparently, for the validity of an endowment contract having an intention of seeking thereby nearness to God is not necessary especially when the beneficiaries are donator’s offsprings. CR # (1106):- For the validity of endowment taking possession is necessary by the beneficiary, his agent or guardian; if the beneficiary dies before taking possession it becomes void. It is not necessary to immediately take possession and the necessity for the permission of donator to take possession is objectionable. CR # (1107):- To establish possession when endowment is for off-spring undertaking of this task by the first generation is enough.

CR # (1108):- If endowment is for one’s minor offsprings and the children of his children and the substance is in his hands, this is enough for establishing possession and it is not necessary to have another possession. If the substance is in someone other than the guardian’s hands, it is necessary that the guardian takes possession for the children. CR # (1108):-~ If the endowed substance is already in the hands of the

beneficiary this is enough for establishing possession and no other possession taking is needed. CR # (1110):- In the case of immovable properties endowed, it is enough that the donator makes it available for the beneficiaries. CR # (1111):- For the validity of endowment

general nature to objectionable it is donator intends to requirements of its

for the beneficiaries of a

consider taking possession as a necessary condition is very possible that it is not required specially when the keep it in his own hands and deal with it according to endowment contract.

The

Book

of Endowment

(Wagaf)

587

CR # (1112):- In case taking possession is required in the endowment for beneficiaries of a general nature, apparently, it is not necessary that high authority in Shari’a take possession if one’s land is endowed to be used as graves, burying therein is enough for taking possession, if it is for prayer to pray therein is enough and if it is for Hussaynia for commemorating Imam Hussayn’s Martyrdom it is enough to hold services therein; the same rule applies to general guest-house, houses for scholars and the needy to start being therein is enough for taking possession.

CR # (1113):- If a mat is endowed for a mosque placing it therein is enough for taking and giving possession, the same rule applies to furniture for shrines, places of worship and mosques etc, apparently, to place them therein to be used is enough for possession. CR # (1114):- If one side of the mosque, a shrine’s etc., wall is damaged and someone repairs it, apparently, it becomes part of endowment even if no one formally takes possession, and if the constructor dies it does not become the legacy for his heirs as mentioned before. CR # (1115):- if it is endowed for s)ones grown-up off-springs and one of them takes possession it is valid in his share not for the shares of others. CR # (1116):- There is a tradition among some Arab people of endowing some of their cattle in such a way that the males born of such cattle are to be slaughtered and females kept for other benefits and so also the next generation, if such endowment is in order for their people suffering from illness to get well or for such other similar reasons the endowment is void. Even if the endowment is actually currently in use, not expected to come in use in future, still it is void because if the female is owned by the donator its product male to be born cannot become endowment because the contract of endowment for a non-existing property is void and if it is no more than the property of the donator its benefits cannot belong to donator or his heirs. CR # (1117):- It is not lawful to get time limit for an endowment, if one

says," My house is endowed for my children for ten or twenty years,~ it is void and, apparently, to keep it as reserved for them as such also is void.

CR # (1118):- If the beneficiaries at some point would no more exist like one’s endowing for his children and the children of their children who may cease to exist the endowment is valid. If the above case takes place, the endowment goes to the heirs of donator at the time of his death not the heirs at the time of the beneficiaries cessation. If the endowing person dies with

ISLAMIC

LAWS

OF

CONTRACTS

588

two children surviving and one of them dies before cessation of beneficiaries the endowed property belongs to uncle and the sons of his brother.

CR # (1119):- In the above case it does not matter the cessation is a rare case or takes place often. To this there is one exception: if there are signs that if the donator had in mind certain conditions to exist in the beneficiaries in the absence of which the endowment would still remain charitable in this case it will not go to the heirs it remains endowment property and its benefits are spent to the nearest possible deserving beneficiary. CR # (1120):- If one endows a substance with a condition that it is returned to him whenever needed, there are two views about its validity according to the more clear one, it is void.

CR # (1121):- For the validity of the endowment it is necessary to make it effectual; if it is conditional with some future matter that is known to take

place, probable to take place or with the matter presently probable to happen and if the endowment contract does not depend on such matter for its validity the contract is void like if one says that my house is endowed if the beginning of the month comes, if a boy is born for me or if today is Friday, the contract is void if it is linked with a matter known to happen presently or unknown to happen but the validity of contract would depend on it like if one says,” I endowed my house if you are ’A’ or I endowed my house if it is mine the contract in valid. CR # (1122):- If one says, "this is endowed after my death it is void except if common understanding would prove that he meant it to be a will for endowment, it is necessary to execute it when the condition required exists and it is endowed consequently. CR # (1123):- It is necessary for the validity of endowment that donator does not make himself a beneficiary, if one says, " my house is endowed for ’A’ and myself " it is void; if it is meant to be as partners but if it is meant to be in sequence like first for one’s self and then for ’A’ the contract is cut from the beginning and it is void altogether but if it is meant to be first for A’ and then for his own it is void for his own only and it is cut at the end. If he says it is endowed for my brother then for myself then for ’A’ it is void for his own and ’A’ and it is of a kind cut at the middle.

CR # (1124):- If one endows some property for his children and asks them to pay his debt common or debts of religious dues it is valid, in fact, apparently, the endowment is valid even if he sets a condition for them to pay his debt from he benefits of the endowment.

ee

eS

The Book of Endowment (Wagaf)

589

CR # (1125):- If one endows for his neighbors with the condition that they feed his guests or pay the expenses of his relatives, children and wife it is valid if the condition requires to pay the expenses of his wife which are his obligation it is valid, in fact, apparently, it is valid even if he asks them to pay from the benefits of the endowment. CR # (1126):- If one endows some of his property so that his debts common and religious dues be paid from it after his death its validity is objectionable, apparently, it is void, the same rule applies if he wants to pay for his worships to be done after his death.

CR # (1127):- If the donator wants, (call him ’A’) to be free of the objection of endowing for one’s own’ self he, ’A’ can let another person to own the property to be endowed and then ’B’ endows it in favor of the original donator A with all conditions and details he, ’A’ wants to exist.

’A’ can also set a condition with ’B’ that would require him, ’B’, to do what he, ’A’ wants ’B’ to do or even hire him, ’B’ for a certain time and set a

provision in the agreement that gives him, ’A’ to annul the contract of hiring and after endowment is formed,annul the contract of hiring, thus, the benefits go to him, ’A’, not to beneficiaries, in fact, it also is very possible to endow

the substance and let the benefits go to donator as his property for a certain time a year or unknown time like for one’s lifetime. CR # (1128):- the donator can benefit from the substance of endowed property like mosques, bridges, schools, public guest-houses, text-books, prayer-books, wells and springs etc., in which the benefit is not assigned to a specific title related to beneficiaries but is for a general cause that includes the donator also but if the endowment is in a different manner from what already mentioned despite the generality of the beneficiaries title the legality

peer uae of donator is objectionable but, apparently, his benefiting is lawful. CR # (1129):- Once the endowment contract is finalized it becomes binding and it is then not lawful for the donator to reverse it; if one forms it in one’s death-bed it is not lawful for the heirs to reject it even if the endowed property is more than one-third of legacy.

ISLAMIC

LAWS

CHAPTER

OF

CONTRACTS

590

ONE

On Qualifications Of Donator (WAQIF). CR # (1130):- It is necessary that the donator, the person endowing can lawfully use the property i.e., he must be mature, of sound mind, free from compulsion, bankruptcy and foolishness and free of slavery bond etc. Thus,endowment of a child is not valid even if he is ten years old. If he says that his property is endowed for good causes in favor of his relatives after he dies and at the time of making the will he is ten years old and of sound mind his will is effective as mentioned before. If the child’s endowment is with permission of guardian and such endowment is beneficial to consider it void is objectionable according to a more clear reason it is valid.

CR # (1131):- It is lawful for the donator - endowing person - to assign the supervision for himself and another person jointly or independently, also he can appoint an over-seer on the supervisors to over-see, or to be the final decision-maker, regardless, such people; over-seer and supervisor are just people or not. However, if they are proved to be treacherous, the high authority in Shari’a joins to them someone who would stop them from such behavior and if they do not stop they are removed. CR # (1132):- the appointed supervisor or over-seer can refuse to accept the post, it is very possible to reject it even after once accepting.

CR # (1133):- It is lawful for the endowing person to assign something from the product or benefit of the endowed property for the supervisor or the over-seer, regardless, it is less, more than or equal to the fair market value wages. If nothing is assigned he gets fair market value wages if his work requires wages, unless indications prove that the endowing person intended it to be free. CR # (1134):- If the endowing person does not appoint any supervisor the high authority in Shari’a is incharge. However if endowment is of the kind of transfer of ownership and it is for a particular cause the beneficiaries are supervisors. If one says, "this house is endowed for my children and after them their children and so on, the supervision of it and its benefits are in the hands of his children but if it is for a general cause or it is for a particular

ISLAMIC

LAWS

OF

CONTRACTS

591

cause but not in the form of transfer of ownership, but it is to be spent for the cause etc., the incharge is the authority in Shari’a.

CR # (1135):- If the donator, the endowing person, appoints supervisor or an over-seer over the supervisor and guardian of the endowment, he then cannot remove him from the post and appointment. However, if he loses some of the conditions set by the donator, like required justice which may be lost or being the most intelligent in the group who may become less intelligent etc., he is removed from the post because of this and there is no need to remove him. CR # (1136):- It is lawful for the donator to authorize someone to appoint a certain person as custodian for the endowment or appoint a custodian and authorize him to appoint someone else as custodian after the death of the donator.

CR # (1137):- If the donator assigns specified works for the custodian it is effective only to those works and the rest is up to high authority in Shari’a, if his appointment is general, the custodian works for all aspects of endowment, he can rent, build, receive payment, pay the liabilities, collect the income and distribute among the beneficiaries etc. However, if there exists a certain common understanding that specifies the job of the endowment custodian, he then would only do such jobs. CR # (1138):- To be a Muslim is not a requirement for the endowing person if a non-Muslim endows, it is valid, provided, he has other required

qualifications according to a strong reason.

CHAPTER

TWO

CONDITIONS ABOUT ENDOWED PROPERTY CR # (1139):- The endowed property must be an existing substance, thus, endowing receivable loan, a property of a general nature or the benefits of some property is not valid if one says, "I endowed the loan payable to me by ’A’ or 1 endowed a horse or the benefits of my house such endowment is not valid. CR # (1140):- The property to be endowed must be owned or things of the same rule. Thus, endowing a free person and all that is originally allowable to own before they are reserved is not valid. It is lawful to endow camels, sheep,

ISLAMIC

LAWS

OF

CONTRACTS

592

cows, received as ZAKAT, if the endowing person is the owner or the high authority in Sharia. CR # (1141):- It is necessary that one can benefit from the endowed property while the endowed substance remains existing. Thus, endowing perishables, like food, vegetables and fruits which can only be benefited from by consuming and destroying them, is not valid. It is also necessary that it has lawful benefits, the which are unlawful benefits of endowed animal to carry wine

endowing of tools of useless activities, gambling etc., to benefit from is not valid. It is necessary that the

property are lawful, thus it is not valid to endow an etc.

CR # (1142):- During formation of endowment it is not necessary for the endowed substance to be possessed at such time, if one endows a runaway camel that could be captured and possession can take place later, it is considered valid.

CR # (1143):- There is no objection to the validity of endowing things like cloths, utensils, carpets, houses, garden, farm-lands, books, arms and animals

if they could be benefited from for riding and as load carrying animals or for their fur or wool etc., or some other lawful benefits. It is lawful to endow

Dirhams and Dinars if they are used for decorating but for their given value as currency is objectionable.

CR # (1144):- the benefit can be as a substance like fruits and milk etc., or benefit of work like riding ploughing or living in it etc. CR # (1145):- It is not necessary that benefits exist at the time of forming endowment. Even endowing trees before they can bear any fruits or a small animal before it becomes a load carrying animal is valid.

CHAPTER THREE Conditions On The Part Of Beneficiaries.

CR # (1146):- The following conditions are required on the part of beneficiaries:(A) The beneficiaries must be specified if they are only vaguely mentioned as either one of the two or one of many like either one of two mosques, either one or two shrines or either one of two sons, the endowment is not valid, but if the beneficiary is as such that serves every one’s interest, it is valid. (B) The beneficiary, in case, are particular beneficiaries, they must

The Book of Endowment (Wagqaf)

593

be existing during forming the endowment contract, thus, endowment for non-existing beneficiaries at the time of formation of contract is not valid, regardless, it was existing before like ’A’ who has passed away or who is yet to be born like one’s child expected to be born but if the child is in the mother’s womb, not separate at time of the formation of endowment, the

invalidity of endowment needs serious thinking. If endowment is made for a non-existing that is subordinate to existing like ones children and then pe ceniidren and then great-grand-children and so on, the endowment is valid. CR # (1147):- If one endows for his existing children and then for those who would come into being and who after coming into being will have priority over the existing ones, apparently, it is valid. (C) The endowment must not be to cover

unlawful

expenses

of the beneficiary

like wine,

fornication,

publishing, teaching, distributing misleading books or spending for tools of useless activities. CR # (1148):- A Muslim can endow for a non-Muslim for lawful matters. CR # (1150):- If endowment is made for an unqualified beneficiary call it A’ and for a qualified one call it ’B’ as jointly beneficiaries the endowment is valid for the share of the second party ’B’ and void for the share of the first party, ’A’. The endowment contract is of cut off end nature, it then is valid for *B’ now first and void for ’A’ now second.

CR # (1151):- If first it is endowed for qualified beneficiary and then for unqualified one then a qualified, it is a cut middle only it is valid for the first and void for the rest. CR # (1152):- If endowment is for visitors of Holy Shrines or Hajjis or local scholars etc. or such like general titles which sometimes exist and sometimes don’t, it is valid even if there is none during formation of endowment contract.

CR # (1153):- If a Muslim endows for the needy or the needy of the town it means the Muslim needy. If the donor is a Shia, his endowment is for Shia needy and the same rule applies to endowment of non-Shia and non-Muslims.

CR # (1154):- It is not necessary to find all the individuals of beneficiaries even if their number is limited; only spending the endowment for such cause

is enough.

ISLAMIC

LAWS

OF

CONTRACTS

594

CR # (1155):- If one says, "This is endowed for my children or relatives or my offsprings or-my students or teachers or neighbors, it is general and it is for such beneficiaries entirely.

CR # (1156):- If it is endowed for Muslims it will be for those who are Muslims according to the belief of the donator. Thus,those who are not Muslims according to donators belief cannot be included in the beneficiaries, even if they profess the two testimonies of faith and the beneficiaries for an endowment

grown-ups.

for Muslims

are

all Muslims,

male,

female,

children

and

CR # (1157):- If it is endowed for believers, it will be for those who are so according to the belief of the donator if he is a twelver it will be only for those who believe in twelve IMAMS, regardless of sex and age and the degree of their religious accomplishments. The same rule applies if it is endowed for Shias, however, if the donator is not a twelver Shiite, apparently, the list of beneficiaries include all Shiite groups who believe that IMAM ALI (~S.) is the immediate successor of the prophet (~S.) CR # (1158):- If it is endowed for in the way of ALLAH or for virtuous causes, it means the causes whereby one can obey ALLAH and seek nearness to Him.

CR # (1159):- If it is endowed for one’s family members and relatives the criterion is common sense and understanding, if it is for close relatives it then is dealt with according to the sequence of relatives in the field of inheritance.

CR # (1160):- If it is endowed for one’s children, both male and female and

hermaphrodites, naturals, are beneficiaries if common understanding of some places would only apply it to males only it will be for them only not for the females and the same rule applies to grand-children. CR # (1161):- If it is endowed for brothers, the brothers from both parents and only one parent all are equal beneficiaries, the same rule applies if it is endowed for grand-parents the grand-parents from both the mother’s and father’s side are beneficiaries, the same rule applies to aunts and uncles of both parents’ sides. However, if it is for brothers the children for brothers and the sister are not included. The same rule applies to aunts and uncles. CR # (1162):- If it is endowed for one’s sons only daughters are not included, if it is for off-springs both male and female, small and grown-ups are beneficiaries.

The

Book

of Endowment (Wagaf)

595

CR # (1163):- If one says, "This is endowed for my children and whoever they leave behind them and their off-springs, apparently, it means they all share, if he says, “it is endowed for my children, the high and higher among them, it apparently, means successive order. If he says," it is endowed for my children, generation after generation and level after level or level than the next level, to take it for their sharing or successive orders there are two views according to a more clear reason successive order is effective.

CR # (1164):- If it becomes doubtful as to which of the two identities or persons are the beneficiaries, it is decided by means of drawing lot. If the doubt is about sharing at the same time or sequential order, if the documents indicate generality, it demands sharing but if it is not general and the doubt for one’s shares are decided by means of lottery. CR # (1165):- If it is endowed for the people of town it will be for the citizens and residents of the town it does not include the visitors and those

who just have decided to stay therein.

CR # (1166):- If it is endowed for a mosque or Holy Shrine its benefits are spent for the maintenance of such places like construction, furniture etc.;

paying the IMAM of the mosque from such benefits is objectionable except if there is indication proving that it also is one instance of beneficiaries and, thus, he also is paid from them. CR # (1167):- If it is endowed for Imam Husayn (A.S.) it is spent to cover the expenses of functions of the commemoration of his martyrdom, the rewards for such spending should be meant to be for him, Imam Husayn (A S.), regardless, such commemoration and functions are held in the mosques, the Holy Shrines or in the compound of the Shrines. CR # (1168):- If it is endowed to be spent for a deceased one or many, it will be spent for the cause favorable to them in hereafter like charity on their behalf if there is a probability that they may be indebted it is spent to free them from debts. CR # (1169):- If it is endowed for the Holy Prophet (S.) and the Imams it will be spent for organizing gatherings to preach about their virtues and excellence and anniversaries and injustice done to them etc., which would help that cause and enhance their position and according to a precautionary rule the rewards for this should be presented to their souls and regardless of him being the twelfth Imam or his forefathers

-

ISLAMIC

LAWS

OF

CONTRACTS

596

CR # (1170):- If it is endowed for one’s children according to a strong reason it universally applies to all children even the far-away later generations. CR # (1171):- If one says, ~it is endowed for my children if they and their children cease to exist altogether it will be for the poor, according to a strong reason it is for his own biological children and others in a joint manner, the same rule applies if he says, (according to a strong reason) "it is endowed for

my children, and when they cease and so would they do, their children and their children it will be for the poor. CR # (1172):- If one says, "It is endowed for my children to reside therein, apparently, it is not lawful to rent it and divide the rent. They must only reside therein if all can reside they all must do if dispute arises the custodian makes the decision, if there are more than one custodian of different views, the high authority in Shari’a makes the decision and if high authorities have

different views it is decided by casting lot, if some of them refuse residing therein it is lawful for the other to independently live therein and he does not owe anything to others. If all cannot live therein at the same time, they divide residing therein by days or months or years if there is difference among them in the matter the previous rule applies to it, none of them can refuse residing and demand rent of his share. CR # (1173):- If one says, "this is endowed for the males in my children and their male children generation after generation or levels after levels it will be for the males of the male children not the males of the female children.

CR # (1174):- If one says, "it is endowed for my brothers generation after generation, it will, apparently, be universally for their children, male and female. CR # (1175):- If one says, "it is endowed for my children then the children of my children the sequence will apply to his immediate children and their children not any later generation instead they all jointly share it.

CR # (1176):- If it is endowed for ’A’ and the poor, apparently, it is divided in half, the same rule applies if one says,” it is endowed for ’A’ and children of ’B’ or says that it is endowed for the children of ’A’ and children of ’B’ or it is for scholars and the poor. CR # (1177):- If it is endowed for the visitors of Holy Shrines, apparently, it is not for the people residing around the Shrine, it is for those coming from the outside to visit and to apply the same rule if he says that it is endowed for those who visit the Shrine is objectionable.

ies

ISLAMIC

CHAPTER

LAWS

ON

OF

CONTRACTS

SOME

RULES

597.

OF

ENDOWMENT

CR # (1178):- Once the endowment contract is finalized it is not lawful for the donator or others to change the beneficiaries by transfer of the property to others or by means of excluding some of the beneficiaries and including others unless including others is a condition in which case it, apparently,is valid; if including as per condition is executed it is effective, otherwise, if it is

not done until he dies the endowment remains unchanged, if excluding some is a condition ,apparently, it is valid and effective.

CR # (1179):- The donator, it becomes for them. However, for the beneficiaries

endowed property does not remain as the property of the an endowed property for the beneficiaries its benefits are If the contract says that only the benefits are to be spent it must be done so.

CR # (1180):- If the contract requires a condition from the beneficiaries in Shari’a if such condition is missing the endowed property becomes free of endowment contract.

CR # (1781):- If the endowed property needs money for maintenance such expenses are taken from the income of the property if any to preserve it prior to the rights of the beneficiaries. Ifthe need for repairs is such that without it, it cannot stay existing for future beneficiaries, apparently, such repairs must be done even if the present beneficiaries lose their benefits from it. CR # (1182):- Fruits on the trees during forming the endowment contract remain the property of the owner they are not for the beneficiaries, the same rule applies to the existing unborn young during forming the endowment contract, the milk, wool of endowed sheep and also the new coming fruits, to

be born young, milk and wool etc., after the formation of endowment contract before giving and taking possession in the cases where taking possession is a condition. CR # (1183): If it is endowed to achieve a certain benefit and the facility is destroyed like in the case of a mosque that may get destroyed, or a school and it is no more possible to repair it or may not need any expense, but no one uses them; if the endowment is multipurpose, which is mostly the case the profits of the endowment are spent for other mosques or schools if possible, otherwise, for that which is closest, to the purpose.

The

Book

of Endowment

(Wagaf)

598

CR # (1184):- If it becomes unknown where to spend the endowment, if the beneficiaries have common ground it is spent for what is certainly qualified, like if it is not known whether the endowment is for the just scholar or scholars or whether it is for the scholars or the poor in the first case it is spent for the just scholars and in the second case for poor scholars. If there is nO common ground among them if their number is not limited it is given as charity to the case which possibly is a beneficiary, if not it is spent for other such causes, if the number is limited like if it is for 7A’ mosque or ’B’ Mr. ’A’ or ’B’ is it for spending or giving possession the nearest possible solution is to decide by lot.

CR # (1185):- If the first generation of beneficiaries rent the property endowed for them (a) in sequential endowment order and this generation vanishes before the term of rent expires, the renting contract is not valid for the remaining time of rent; the same rule applies if the beneficiaries are (b) to benefit jointly as partners from the endowment as opposed to sequential endowment in which the beneficiaries benefit in one after the other person or party. If one beneficiary is born during the term of rent agreement the rent contract is not valid for the share of the newly born, apparently, it is valid in both cases if the next generation in (a) or partner in (b) and the renting party receives his share of rent and there is no need to renew the rent agreement although it is a precautionary rule to do so, if the rent agreement is made by the custodian for the benefit of endowment it is valid and effective and the same rule applies if it is for the benefits of the next generation of beneficiaries and if he is custodian for this generation also the rent is valid and the later generations receive their share of benefits. CR # (1186):-If the endowed property yields various profits and produce, all belongs to beneficiaries if the contract language is absolute and unrestricted. If the trees and palm-trees are endowed the fruits, their environmental and all other physical benefits all that is inseparably part of the endowment is for the beneficiary. It is not lawful for the owners and others to use them in ways other than those set forth by the donator. CR # (1187):- The branch that may grow out of an endowed tree, if it grows and by itself becomes a tree or is cut and planted at another place and it starts bearing fruit it is not endowed like the original, it is the profit of the endowed property and it is lawful to sell it and spend for the beneficiaries, the same rule applies to the pruned branches that may have been planted somewhere else and have become trees, only the rules of the benefits of endowment apply to them.

ISLAMIC

LAWS

OF

CONTRACTS

599

CR # (1188):- If a mosque is destroyed, the land still remains subject to the rules that apply to mosque even if repair is not possible. The same rule applies if the users vanish and it goes out of use forever.

CR # (1189):- Except mosque, other endowed properties when cannot be used anymore for beneficiaries for being destroyed or unable to produce profits, it is lawful to sell some of it to repair rest. If repair the is not possible it can be exchanged for something of use to beneficiaries, if this is not possible the proceeds of sale is spent for beneficiaries. CR # (1190):- If endowed property cannot be used for beneficiaries its benefits are spent on the nearest such beneficiaries. If it is for commemorating Imam Hussayn’s martyrdom at a certain place and doing so is not possible it is spent for the same cause at another place. CR # (1191):- If beneficiaries vanish, the endowment is void and it returns to owner, as mentioned before, or his heirs if he does not exist.

CR # (1192):- If the endowed property is damaged but still yields profits, only less than normal if it can be repaired even by renting for a while to use the rent, it is necessary to do so,if not, apparently, the endowment remains effective and the profits are used for beneficiaries. CR # (1193):- If a garden is endowed to spend its profits for a certain cause, and the trees are destroyed for lack of water or some other reason if the land can be rented it is necessary to do so and the rent is spent for the beneficiaries, if there is proof that to be used only as a garden is a condition in the endowment contract, like to be used for recreation, if it is possible to sell and buy another garden, it must be done, otherwise, the endowment is void because of the cessation of the cause and it returns to the ownership of the owner. CR # (1194):- It is lawful to endow a garden and exclude one palm tree, thus, it is permissible for him to enter the garden when necessary as well as keep it there free of charges and the beneficiaries cannot cut it off but if it is cut he will have no right to the land and it is not lawful for him to plant another palm tree. The same applies to excluding a room of an endowed house but if the room is destroyed the ground remains for him because it is part of the room.

CR # (1195):- If a property is only partly free property it is permissible to divide such property and the owner of the part of free property becomes

The

Book

of Endowment

(Wagaf)

600

custodian of the endowed part, in fact, according to a strong reason dividing is permissible if both donator and beneficiaries are more than one people like if a house belongs to two people and each endows his share of the common ratio of the house for his children or the donator is one person and the beneficiaries are more than one cause or persons as when one endows half of his house for a mosque and the other half for a holy shrine, also if the donator and beneficiary is one if dividing is not against endowment contract, like if one endows a land for his children who are four, it is permissible for them to divide it in 4ths and if one more is born the division is void but they a divide it in Sths and if two die, division is void and they can divide in 3rds and so on. CR # (1196):- It is not lawful to change the substance of the endowed property if it is known that donator the endowing person wants to preserve the original status, regardless, it is revealed from the details of endowment like when one endows his house as residence it is not lawful to change it into shops or some external indications reveal it, in fact, even if there is a possibility that the donator had such intentions and endowment documents are not absolute and unrestricted such change is not lawful However if the endowment contract is general and unrestricted the custodian can change the house to shops or vice verse. Sometimes the intention of preserving the original status of endowment is discovered to be linked with a certain level of yielding profits, thus, it is not lawful as long as this is the case but when the yielding level is reduced it is lawful to change.

CR # (1197):- If a tree is cut in the endowed garden, if the endowment is to benefit from the fruits it is lawful to sell it and use the money for the garden if it may need, otherwise, it is used for the beneficiaries. If it is endowed to just benefit the beneficiaries if it could be used for construction or so it is not lawful to sell. If it cannot be benefited from its existing condition it is lawful to sell it and use the money for the garden if needed. If not needed for the garden it is used for the beneficiary.

CR # (1198):- The collection of donations for commemorating the tragedy of Karbala and martyrdom of Imam Hussayn (a.s), regardless of the source of such donations as being from certain groups of people, people of a town or others, apparently, is of the kind of charity with a condition that requires to be used for a specific cause only. Thus, it is no more the property of the donator and it is not permissible for the donators to ask for refund and if the donator dies before his donation is spent it is not lawful for his heirs to ask for refund, the same rule applies if the donator is bankrupt his creditors cannot demand refund of such donations, if it cannot be spent to ask for refund and if the donator dies before his donation is spent, it is not lawful for his heirs to ask for refund, the same rule applies if the donator is bankrupt

ISLAMIC

LAWS

OF

CONTRACTS

601

his creditors cannot demand for refund of such donations, if it can not be

spent for the intended causes, for precaution it is spent to instances nearest to the original cause of donation. If the donator has not given his property totally away and spenders are like his agents in such case it still remains his property he, his heirs or his creditor can demand for refund and it is necessary to refund it to them on demand. It cannot be spent for the cause, and if there is a possibility that the owner may not agree to its use for other causes, one must ask the owner about it.

CR # (1199):- It is not lawful to sell the endowed property except the cases mentioned in the rules of buying and selling. CR # (1200):- If the purpose. of endowment is to achieve a certain goal and it is discovered that the goal is not achieved, this does not invalidate the endowment, if it is discovered that the donator wants his children to benefit

for their education or live in the neighborhood of a holy shrine etc., and such purpose is not achieved it does not affect the validity of endowment, the same rule applies to all goals which require unilateral or bilateral contracts if the buyer wants to make profits out of such purchase and he does not make any profits it does not affect the validity of the contract or give him the right of having the choice to annul the contract.

CR # (1201):- The conditions are effective and valid and it lawful ones if a condition says more than a year or must not renting to others is not valid.

set by the donator in the endowment contract is necessary to fulfil them, provided, they are that the endowed property must be rented for be rented to only a certain person or a group,

CR # (1202):- A property can be proved as endowed by knowing it to be so even if such knowledge comes from hearsay and a large number of people giving such report and by means of a testimony recognized in Shari’a and by means of the professing of the person who has it in his hands even if his hands are not independent like when there is a group of people in a house and any or some of them reports that the house is an endowment property, the endowment is considered valid even if the others do not profess. CR # (1203):- If some articles have writings on them which say, n it is endowed," apparently, it is considered endowed if such articles are in the

hands of someone who regrets the writing and gives a reasonable explanation it is said that such person is considered truthful and on such basis it is lawful

to buy it from him or use it with his permission or apply other rules of property but such view is objectionable.

The

Book

of Endowment

(Wagaf)

602

CR # (1204):- If some writing is found with the legacy of a deceased which says certain articles are endowed for a certain cause, if there are signs of his professing it to be an endowment document like his signature at the end or placing it in envelop with a writing on it which says, n this is the endowment document of such and such property etc. which clearly proves it to be his professing about some property as endowed ,it is considered endowed property, otherwise, it is not considered endowed even if it is proved that it is the deceased writing. CR # (1205):- For the effectiveness and validity of the report about endowment of the person in whose hand the endowed property is, it does not matter whether it is about the endowment contract or it is about certain other details such as being an endowment to be used by the beneficiaries in sequential order or all at the same time (see 1163) that it is only for a certain sex or that the beneficiaries have equal shares or different or that it is a spoken report or it is by deeds like dealing with it as an endowment property or using as an endowment use by the sequential order of beneficiaries or in manner of all at the same time, if such deeds provide clear indication of a communication about the status of the property such deeds are also dealt with as the spoken report. CR # (1206):- If the substance of endowed property is of taxable properties in the form of Zakat, like sheep, cows and camels, Zakat is not due on it even if all taxability conditions exist, but if its profits are taxable in the form of

Zakat, like a garden if the endowment is in the form of transfer of property to beneficiaries such as if one says, it is endowed for my children if everyone’s share is a taxable quantity Zakat is due, otherwise, if the property is endowed for a general title like one’s saying that the garden is endowed for poor of town without intending to include all, there is no Zakat on any of the beneficiaries except if the custodian gives one of them some of the profits before the time Zakat is obligatory and it is a taxable quantity Zakat is due on whoever owns such profits. Also the products of endowed property is not subject to Zakat if it is for using for a cause like if one says," the garden is endowed for the expenses of the wedding of my children or to feed the needy."

ISLAMIC

LAWS

OF

CONTRACTS

603

APPENDICES CHAPTER Restricted

ONE

Properties.

CR # (1207):- One can lawfully reserve his property to be restrictedly used for a certain cause for which endowing is also lawful, the profits are used for the cause and he still is the owner. If the owner intends to seek thereby nearness to Allah and his reservationis unconditional or is conditional with perpetually such assigning becomes binding as long as the substance exists and the owner is not permitted to reverse it, if it is for a limited time it cannot be reversed until the end of such time as soon as the time is over the property is free. If one says that my horse is only for transporting Hajis, it is binding as long as the horse exists but if he says," only for twenty years,” it is binding only for that time.

CR # (1208):- A large group of scholars has said the assigning for restricted use is not valid without possession and this is not free from objection, in fact, apparently, it is valid without possession but possession is a condition for it to become binding, thus, the owner before giving possession can reverse the assignment.

CR # (1209):- If the owner reserves his property for the exclusive use of a person if he sets a time limit like a year or ten years or for the whole lifetime of the beneficiary, it is binding and effective throughout the period and after this it returns to his ownership. If owner dies before the time ends the property remains reserved until the time ends after which it returns as legacy. If it is reserved for the lifetime of the owner he is not permitted to reverse it in his lifetime and after him it is his legacy. If a property is held in reserve

for someone with no mention of time limit there are two views about it; that

it is binding and effective until the death of owner only after which it becomes part of the legacy or that owner can reverse it anytime; the second view is more probable to be valid.

CR # (1210):- Similar to the above-mentioned way of holding in reserve

some property for a certain use is when it is a (a) -Sukna- house for residing or (b) some property in general, and if the time limit is for the lifetime of the user it is called lifetime benefitting (1) - ’umra- and if the time is only (2)-

ISLAMIC

LAWS

OF

CONTRACTS

604

ruqba - to an appointed time it is called held in reserve for a certain use for an appointed time. CR # (1211):- Apparently, possession is not a condition for its validity,in fact, it makes the contract binding as mentioned before. CR # (1212):- If one allows the beneficiary to live in the house for a certain time, say ten years or for the lifetime of either party the owner or beneficiary it cannot be reversed before such time and as soon as the time ends the property returns to his ownership or to his heirs. CR # (1213):- If one says," I let you and those after you live in this house," he can not reverse it as long as they exist and when they all cease the property returns to the owner, CR # (1214):- If one says," I let you live in this house as long as I live but the resident dies before the owner if it was for him and his dependents as the nature of general statement indicates the house after his death returns to the owner, if it is before the death of the latter, with some objection if the intention is to transfer the ownership by means of letting him to live in it the house goes to his heirs as long as the owner is living when the owner also dies the property is transferred from the heirs of the beneficiary to the heirs of the owner, the same rule applies if the beneficiary is allowed to reside for an appointed time and he dies within that time.

CR # (1215):- If he lets the beneficiary to reside for life by saying, "I let you reside in the house for life and the owner dies before the resident, it is not permissible for the heirs of the owner to prevent the beneficiary from residing, he can reside for life.

CR # (1216):- If one is allowed to reside in a house without any mention of time limit, it is valid and it becomes binding with taking possession and it isnecessary for the owner to let him reside, for a time and then he can reverse the contract any time, but this does not apply to the case in which time limit is mentioned either (a) life time or (b) an appointed time and in the above case none of such time limits exist. CR # (1217):- A general statement of letting the beneficiary to reside in a house as mentioned before requires that the beneficiary, his subordinates, his children, servants, guests, animals if there is place for them, and his such

belongings that are commonly owned by people of his class, ‘but he cannot rent it or allow others to use it for sometimes if he rents and the owner

2 Brees

OT A fT ae * Lae

ISLAMIC

LAWS

OF

CONTRACTS

605

allows it whether such renting deal is valid or could the rent go to beneficiary is objectionable. .

CR # (1218):- Apparently all three forms of letting beneficiary to reside in a house is of the form of contracts that require an offer and acceptance and just like other contracts the necessary conditions must exist in order for it to be valid (see chapter on selling and buying contract). In the case of holding some property in reserve for the use of a certain person, apparently, if it is for a person, acceptance is needed but if it is for spending for a certain cause, acceptance is not required. CR # (1219):- Apparently, in the case of property held in reserve for certain peoples, it is lawful to sell such property before the time of holding in reserve ends, the substance is transferred to buyer just as it was with the seller the beneficiary can still benefit according to holding in reserve contract, it is permissible for the buyer to reach a settlement with the beneficiaries in such a way that they let him benefit without disturbance until the end of their term as beneficiaries, however, if the settlement is to make the beneficiaries, give up their rights of benefitting or do so in exchange for something it is objectionable.

CHAPTER TWO CHARITY STRONGLY RECOMMENDED

The charity about which the reports from the Holy Prophet (AS), are unanimously narrated, and which place much emphasis on it as a very virtuous deed, reports say that charity is medicine for illness and protection from mishaps, it increases one’s wealth and that it reaches the hands of the Lord before reaching those of His servant and that it leaves blessings behind and through it debts are paid; evil death, sickness, burns, drowning, leprosy, insanity, and up to seventy forms of evil are repelled from one by charity. It is recommended to give charity early for it repels the evil of that day, and at the beginning of night to have protection from evils in that night. CR # (1220):- According to the well-known view charity is also a form of contract, thus, there is a financial favor to someone to seek nearness thereby

to ALLAH, if such favor takes place in the form of transferring property it requires offer and acceptance. If it is in the form of waiving a liability, only offer is enough, like saying,” I waived your debts," if it is like donation it is enough to allow using and so on, each case is dealt with accordingly.

ISLAMIC

LAWS

OF

CONTRACTS

606

CR # (1221):- According to the well known view taking possession is a condition in it in all cases, but apparently, it is only necessary when the case requires it, i. €., possession is necessary when itis a gift or endowment but if it is in the form of waiving or spending, possession is not necessary. CR # (1222):- In charity it is necessary for one’s intention and motives behind it seeking thereby nearness to ALLAH, thus, if one gives a gift, or waives a certain thing or endows without the intention of seeking thereby nearness to ALLAH, it is one of the above said contracts but not a charity. CR # (1223):- The charity of a Hashimite, member of the tribe of the Holy Prophet is lawful for Hashimites and non-Hashimites, in the case of Zakat of property and Zakat of breaking the fast of Ramadan. The charity of non-Hashimites if it is Zakat of property , it is unlawful for Hashimites, but in the case of Zakat for breaking the fast it requires some thought. Paying Zakat by non-Hashimites to Hashimites, if the charity is other than the two above-mentioned forms of Zakat it is lawful, regardless, it is an obligatory charity like redemption, payment for one’s unjust deeds, expiations, redemption for the fasting missed in time or desirable charity, except if it is the little amount given to the needy to protect oneself from evil which may cause a kind of insult to the recipient, the lawfulness of this latter form is objectionable.

CR # (1224):- According to a sound view it is not lawful to demand the return of the charity if it is a gift already in the possession of the recipient even if he is a non-relative. CR # (1225):- It is lawful to present an optional charity to a rich, a non-Shia and a tax paying non-Muslim. CR # (1226):- In the case of the optional charity, giving it in private is more virtuous unless giving publicly is intended to clear up false accusations or to encourage others for doing likewise., etc., or such like reasons on the other hand in the case of obligatory charity according to some reports it is better to give it in public; it also is said that giving in private is better according to a more clear reason; the rules are different because of different cases which require publicity or privacy.

CR # (1227):- Facilitating the family is better than giving charity to others, charity to a needy relative is better than to give to a non-relative and better than this is charity to an quarrelsome blood-relative. It is preferable to give charity through others to the needy, a Hadith says, "If a charity passes

pm

sr

ISLAMIC

LAWS

OF

CONTRACTS

607

through eighty hands until it reaches the needy all are rewarded without any reduction in the rewards of the donator for it Allah is All knowing and giver of success.

THE BOOK (NIKAH) CHAPTER

OF

MARRIAGE

ONE

In a permanent marriage there must be a contract consisting of an offer and acceptance using correct Arabic words in the past grammatical tense, like the Arabic words " ZAWWAJTU" and "ANKAHTU" and " QABILTU" or according to a necessary Ihtiyat appoint some one else to pronounce the contract terms in their behalf if the parties themselves are not able to say in correct Arabic words. The translation of such words is also enough, provided, the parties are not able to say them in Arabic, according to a necessary precaution, also in the case of inability, making gestures, pointing or by such means, is considered enough. If some woman marries by herself it is valid, in the case of a virgin because of a necessary precautionary rule, permission of the guardian, father and/or grandfather is required; except if the guardians prevent her from marrying her match according to the point of view of Shari’a and common sense in which case the authority of the guardian is void. If a virgin marries without the permission of the guardian and then he approves the marriage contract, it is valid without objection. CR # (1228):- In the case of a permanent marriage the terms to be used to form the contract are as follows): If the female says," Zawwaj tu ka nafsi bi Mahr ’x’ amount of money, n and the male says, n Qabiltu n it is enough, if the female has appointed a proxy he says to the party "Zawwajtuka Muwakkilati, "H’ Bil Mahr of ’x’ amount of money," and the male says, "Qabiltu." If the male has appointed a proxy the female says to male’s proxy

"Zawwajtu Muwakkilaka ’z’ Nafsi for a Mahr of ’x’ amount of money," and the proxy says, n Qabiltu," if both parties have appointed proxy the female’s proxy says to male proxy," Zawwajtu Muwakkilaka ’y’ Muwakkilati ’z’ for ’x’ amount of money," and male’s proxy says, n Qabiltu." It is lawful that one person acts as proxy for both parties even the male party himself can do so but according to an optional precautionary rule the would-be husband should not become a proxy of the would-be wife and accept the offer for himself.

The

Book of Marriage (Nikah)

608

CR # (1229):- For the validity of the marriage contract it is not necessary to have people witness the formation of marriage contract. A claim of marriage without testimony is not of any value, if the defendant takes oath even if the parties agree on having sex. If the defendant refuses to take oath, the plaintiff is asked to take oath and judgment is issued on this basis. A professing party is made to stand up to his statement in all cases. If the parties agree on marriage they are married. CR # (1230):- The words of father are accepted in specifying the female in several sisters, if she is not specified in the contract and the male has seen them all if he has not seen them all the contract is void. It is preferable for one who wants to marry, to choose a chaste, virgin, of noble descent, pray

two Rak’at prayer at the time of getting married and pray with this prayer, n O Lord, I want to marry; destine for me a chaste woman who safeguards myself and my property and who has great degree of blessings ", and say this when placing one’s hand on bride’s forehead, " O Lord, according to your Book I have married her, in Your trust I have taken her in marriage and by means of Your words I have made her sexual pleasures lawful, if You destine a child in her womb make him a perfect Muslim, do not make him a partner efpeer and ask her to do the same and ask Allah to grant him a male

child.

CR # (1231):- It is detestable to form marriage contract when constellation Scorpio according to Zodiac system is very close to the moon, to marry a barren woman, to have sex in the night of moon eclipse taking place and the day of sun eclipse, at the beginning of noontime except Thursday, at sunset before the disappearance of the bright spot in the western horizon, at the end of month when the moon is not observable anywhere, after dawn before sunrise, at the first night of the month except the month of Ramadan, at night in the middle of the month, at the time of earthquake, at the time of coming of the yellow winds and black winds, when facing the direction of Qibla or when one’s back is toward Qibla, when on board of a ship, when naked, after a dream of having sex, before taking shower, looking at the private organ of woman, talking anything other than praises of Allah, withdrawing before discharge from a free wife - as opposed to a slave girl - without her permission and at the night in which one arrives from a journey. It is unlawful

to have sex with a wife before she is nine years old. CR # (1232):- It is lawful for a man to look at the woman whom he intends to marry as well as at the hands and faces of non-Muslim woman without lust and according to necessary Ihtiyat one must not look at other than their hands and faces, also careless women who do not listen when they are told to observe (Hijab) Islamic dress for woman and the relatives with whom marriage is not lawful forever because of blood relations or matrimony or

ISLAMIC

LAWS

OF

CONTRACTS

609

breast-feeding, provided it is without lust in all cases. Itisunlawful to look at the women other than those just mentioned, and a girl who is less than nine years but is able to discern good from bad even without lust also, besides the face and hands which is unlawful with lust. Of the non-relatives is one’s wife’s sister and one’s step-daughter before having sex with her mother. It is unlawful for women to look at non-relative men. according to precautionary rule except the face, hands, neck and feet. Their looking to men’s these places, apparently, is lawful, provided, it is without lust and doubtful feelings, without it, it is a precaution not to look, the same rule

applies to looking with lust, even at one’s own kind and the same rule also applies to touching of men and women of each other in case of non-relatives. It is lawful for a man to look at or touch a minor girl and women’s touching or looking at a minor boy without lust in all cases, but with lust it is unlawful in all cases. CR # (1233):- It is obligatory for a woman to cover herself from others except

her

relatives,

besides

her

hands

and

face.

In fact, because

of

precaution even hands and face must be covered from all others except the husband; even relatives when it comes to looking with lust, according to precautionary rule. It is not necessary for men to cover in general.

CR # (1234):- It is lawful to listen to the voice of a non-relative woman without lust.

CR # (1235):- It is unlawful not to have sex with one’s wife for more than four months according to the popular view although according to a more clear reason one must agree with her whenever she demands and the same rule applies to a temporarily married wife according to a necessary precaution, in fact, not less then normal frequency.

CHAPTER

TWO

ON

(AWLIYA)

GUARDIAN

The guardian is father and grand-father and great grand-father and so on, the executor of one’s will, the high authority of sharia and the master of slaves. CR # (1236):- A father is the guardian of his minor children and the insane

adults and both groups have no right of having the choice to do, otherwise,

The

Book of Marriage (Nikah)

610

when their conditions are changed except if at the time of the formation of marriage contract it was harmful to them reasonably, the contract is not valid unless they approve it after they become adults or recover from insanity. If the parents marry the minor children as guardians, the contract is valid but its becoming binding on them after their maturity, is not free from objection. The precautionary rule should not be ignored. It is not far from reality to consider the father as guardian of one who becomes insane after maturity with some objections therein, thus, according to a precautionary rule the high authority in sharia’s permission should also be acquired. CR # (1237):- Father and grandfather have no guardianship over adult and mature son or daughter except a virgin, in her case, it is a necessary precaution that for her marriage her permission and the permission of her father is required. Her silence, when asked for permission is enough, unless there is proof of her disagreing to marriage. If she is not a virgin due to some reason other than sex, she still is virgin, as opposed to reasons like sex by mistake or fornication, according to a more clear view. CR # (1238):- It is not necessary to acquire father’s and grand father’s from the father’s side permission for the marriage of the virgin daughter if it is not possible because of his absence or imprisonment etc., and/or she is not a

virgin.

CR # (1239):- The executor of the will is the guardian for the marriage of the children of the deceased if the testator has particularly said it in his will and the same rule applies to an insane person who needs to marry, according to precautionary rule to acquire the permission of the authority in sharia. CR # (1240):- The guardian for an insane is high authority in sharia if there is no other guardian and the person needs to marry, his guardianship over a child in the same matter is not free from objection, according to a more clear view his guardianship is allowable when the dependent person needs it. CR # (1241):- Marriage of a fool is objectionable, according to a precautionary rule he should not marry without the permission of father if he exists or the high authority in sharia if the father is not existing. If he is reasonable in financial matters but not in the matter of marriage, precautionary, he should acquire the permission of the high authority in shari’a for his marriage.

CR # (1243):- If the guardian has established a marriage contract for the two minors they (such minors) inherit each other due to marriage if some one other than the guardian does it, it requires approval, if one of them dies

ISLAMIC

LAWS

OF

CONTRACTS

611

before maturity the marriage is void, if one of them matures and approves the marriage and then dies the second party is given oath after this person’s maturity for having no greed, when it is possible that his approval may have taken place due to greed in legacy, if oath is given the person is entitled to legacy, otherwise, not. CR # (1244):- Just as tentative proxy is valid in selling contracts it also is valid in marriage, if a person as proxy forms a marriage contract for his principal without the latter permission who then approves it, the contract is valid, if hc does not approve, it is void.

CR # (1245):- If a woman appoints a proxy for her marriage he cannot validly marry her except if the authorization is general, even if she allows him to marry her according to an optional precaution, he should not say both the offer and acceptance by himself, he should have a proxy for the offer on her behalf. It also is permissible for him to have her as proxy who says the offer by herself and the acceptance on his behalf

CR # (1246):- If the parties are forced to marry and then approve it, according to a necessary Ihtiyat the contract must be renewed.

CHAPTER ON MATTERS UNLAWFUL.

THREE CAUSING

TO

MAKE

MARRYING

There are two kinds of such matters:

(a) Blood Relations. (b) Matrimony People in (a) category are mothers in ascending order like grand, great grand-mothers and so on. All daughters in descending order like grand-daughters and great-grand daughters and so on. Sisters and her daughters downwards, aunts from both mother and father’s sides onwards like parents’ aunts and daughters of brother downwards. People in (b) category are those unlawful to marry because of marriage.

The

Book of Marriage (Nikah)

612

CR # (1247):- For one who has had sex with a woman, her mother upwards

and daughters downwards from her sons or daughters become unlawful for him to marry forever, regardless, they are there before or after having sex. CR # (1248):- After having sex with one’s wife she becomes unlawful for marriage to the fathers of husband upwards even a grand father from mothers side and to his children downwards and the same rule applies to father and son’s wives with whom sex or no sex has been had. It is unlawful forever for both to marry the others’ wife.

CR # (1249):- If one forms a marriage contract with a woman and has not yet had sex with her it is unlawful for him forever to marry her mother upwards, and also her daughters, according to a precautionary rule, downwards, regardless, they are from her daughters or sons as long as their mother is his wife, if she departs before having sex it is lawful for him to marry her daughter; if sex has been had with her it becomes unlawful for him ee to marry her daughter but she is not unlawful to marry for his son or ather.

CR # (1250):- It is unlawful to marry one’s sister in-law with one’s wife at the same time but not without her, the same rule applies to the daughters of one’s sister-in-law and brother-in-law except with the permission of one’s wife. If a marriage contract is formed in such case without the permission of one’s wife and who then approve it, it is valid without objection. CR # (1251):- If one fornicates with one’s aunt from mother’s side either front or back it becomes unlawful for him forever to marry her daughters if it is before having marriage contract with her daughter, the same rule applies to fornicating with aunt from father’s side. According to a precautionary rule, a fornicator should not marry at all daughters of the woman with whom he has fornicated. About to consider having sex by mistake or fornication after marriage and before having sex similarly, there are two view; considering as such is based on precautionary rule and a better and more clear view says not to do so. CR # (1252):- Kissing, touching and looking with lust etc., are not considered as having the same’rule as fornicating, thus, kissing one’s aunts or other women or touching them or looking at them with lust does not make it unlawful for him to marry their daughters. CR # (1253):- Fornication and sex by mistake may take place after a consummated marriage is considered as accidental elements, thus, they do not cause it to become unlawful. If one marries his aunt’s daughter and

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consummates the marriage and then commits fornication with his aunt and makes sex by mistake, his wife who is his aunt’s daughter does not become unlawful in marriage. CR # (1254):- According to the popular view if one fornicates with a woman it becomes unlawful forever for his father and children to marry this woman if fornication is before marriage, otherwise, not, apparently, it is not unlawful if fornication takes place before marriage, although it is a precaution not to marry in such case. CR # (1256):- It is unlawful for a free person to marry more than four free women at the same time and more than two slave girls; he can combine two free and two slave girls or three free and one slave girl. It is unlawful for a slave to marry more than four:slave girls at the same time or two free women, he can marry one free and two slave girls. It is not lawful to marry a slave girl on a free woman except with the free wife’s permission, if marriage contract is formed without her permission it is void, but with such permission it is valid according to a more clear view. If one marries a free woman as co-wife of a slave girl and the woman does not know about it she has the choice about her marriage to keep or dissolve it. If one marries a free woman and a slave girl at the same time, the marriage of free woman is valid and that of the slave girl depends upon the permission of the free woman.

CR # (1257):- It is unlawful to form marriage contract with a married woman or a woman whose waiting period (after divorce or death of the husband or expiration of marriage term), is not complete as long as they are in such condition. If one marries such a woman because of not knowing the rule or the person the contract is void. If sex is done it becomes unlawful for him forever to marry her, the child is his if any, he has to pay her an amount equal to her dowry Mahr. If she did not know, according to precautionary rule she should complete the first waiting period, if applicable to her case, and start the second waiting period, according to a more clear view both waiting periods run parallel. If he marries knowing the rule and the person, it becomes unlawful for him forever to marry her because of forming just a marriage contract, the same rule applies, if he married a woman during her waiting period, and knows the rule and the person, but a married woman knowledge has no effect and in the case of waiting period it does not matter, whether it is because of final divorce or a divorce wherein the husband has the choice to return to his wife and resume the marriage or is the waiting period because of the death of the husband or due to sex by mistake also,

regardless, the woman experiencing waiting period is free or a slave girl or that the sex is made in the front or back. Waiting period is not of the same

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rule as the QUARANTINE period of a slave girl or marriage contract or sex by mistake, or ownership, or legalization, the criterion is the knowledge of the husband not that of his guardian or agent.

CR # (1258):- It is not lawful to marry a woman in a period of time between the death of her husband and the time she learns about it. Can such time be considered part of waiting period; a given answer is no. If one forms a marriage contract with her at such a time she does not become unlawful for marriage for him even if he knows it and has had sex with her, he must renew the contract after learning the death and completion of waiting period after it but it is very much objectionable, and precaution should not be ignored. CR # (1259):- If he has had sexual intercourse with a boy according to precautionary rule, it becomes unlawful for him forever to marry the boy’s mother, his sister, or his daughters even if they are boys not adults. If one is married to one of such ladies before such act, it does not affect the already existing marriage, although it is a precautionary rule to avoid such marriage. Extending this rule to the case wherein one doing the act is a minor the one letting it done to him is an adult, is objectionable, according to a clear view it

does not apply. The daughter or brothers and sisters of the one letting it done to him do not become unlawful to one who has done the act.

CR # (1260):- If one makes sex with a child less than nine years and it cuts the wall of the urine and feces and or discharge of menses’ passages she becomes unlawful for him forever for sex according to necessary Ihtiyat and without such cut it is according to Mustahab precaution. The rules of matrimony, like maintenance etc., apply in fact, her maintenance is on him for the whole of her life even if she disobeys or is divorced, even if she marries someone else and divorces according to a precautionary rule. If

she suffers such injuries after she is nine years old her marriage does not become unlawful for him but there is no compensation payable for it at all but there is compensation if the injuries take place before she is nine and he divorces her, it also is said that there is compensation in all cases but such view is weak, according to a precautionary rule, it is necessary to provide as if she is less than nine years old. If a stranger girl is caused to suffer such injuries she does not become unlawful for him to marry. CR # (1261):- If one fornicates with unmarried woman who also is not during her waiting period, it is not unlawful for him to marry her, according to a necessary precautionary rule he should not marry her before her undergoing a certain time of quarantine by experiencing a menses’ cycle.

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CR # (1262):- It is lawful to marry a prostitute, according to a necessary precaution, one should not marry a publicly known prostitute before her repenting has become clear.

CR # (1263):- If one fornicates with a married woman or during her waiting period after a divorce in which the husband has the right to take her back in marriage, it becomes unlawful for him forever to marry her. But if she is married temporarily, or she is in a waiting period for irrevocable divorce or death of her husband it is permissible to marry her afterwards although for Mustahab precaution he should not marry her. CR # (1264):- The rule for a married woman does not apply to a slave girl with whom one has sex because of ownership or the legalized process, the rule for a woman during her waiting period after a divorce in which the husband has the right to take his wife back does not apply to waiting period after a final divorce after which the husband does not have the right to take back his wife, to waiting period after the death of the husband to, waiting period after sex by mistake and to the period of quarantine of slave girl. CR # (1265):- If a married woman fornicates she does not becomes unlawful because of this to her husband. CR # (1266):- If one in the state of Ihram for HAJJ (when one is dressed for HAJJ rituals ) forms a marriage contract knowing that it is not lawful, it becomes unlawful forever for him to marry her, but if he did not know the rule the contract is void but she does not forever become unlawful.

CR # (1267):- If one divorces a free woman three times it becomes unlawful for him to marry her before she marries some one else even if the second husband is a slave. If a slave girl is divorced twice it becomes unlawful for him to marry her before she marries some one else even if the second husband is a free man. CR # (1268):- If one has divorced a woman nine times in which she has married twice the same or two different men, it becomes, after this, unlawful

for him forever to marry her. It is not very far from reality that nine times divorce in all cases makes it unlawful for him forever to marry as it will be. mentioned latter. CR # (1269):- If one divorces one of his four wives in the form of reversible divorce it is not lawful for him to marry another woman before her waiting period is completed. But it is lawful in the case of irreversible divorce.

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CR # (1270):- If one marries successively three ladies on two existing wives the second contract is void. If all three are married at the same time, it is not

far from reality that he may have the choice to choose any two. The same rule applies to marrying two sisters. (b) The second cause of making marriage unlawful is breast feeding.

CR # (1271):- Breast feeding makes it unlawful to marry all those who cannot be married because of blood relations if the milk is due to child birth of correct sex, even if it is sex by mistake. Breast-feeding duration must be for one day and night or feeding to a degree whereby flesh grows and makes bones strong or it is fifteen times full breast feeding. CR # (1272):- Unlawfulness of marriage due to breast feeding for one day and one night or full fifteen times breast feeding requires that the feeding must not be interrupted by other feeding, but it does not affect the breast feeding which lets the flesh to grow and the bones to become strong. CR # (1273):- An interval by eating and drinking between two breast feeding does not affect the fifteen times breast feeding and the breast feeding factor that lets the flesh grow and the bones become strong but such interval does affect the one day and one night breast feeding if the baby drinks or eats pomeathing else besides breast feeding it will not cause marriage to become

unlawful. CR # (1274):- It is not far from reality to say that ten full and uninterrupted breast feeding even by eating and drinking can also make marriage unlawful.

CR # (1275):- In the case of breast feeding that makes marriages unlawful it is necessary that it must take place before the baby is two years old but not the baby whose mother breast feeds, the breast feeding after two years is of no affect. It also is necessary that the milk is produced because of one male and one female (apparently milk is produced because of sexual activities), thus, if a woman breast feeds a baby while she is sexually active with one male and she completes the required breast-feeding while being involved sexually with another male due to such breast-feeding, marriage does not become unlawful.

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CR # (1276):- Breast feeding by two woman of one child does not make marriage unlawful unless they both are sexually active with one and the same man, thus, if two woman breast feed; each one child while they are sexually active with one and the same man it makes marriage unlawful between the two children. If one woman breast feeds two children while her milk is due to

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her sexual activity with a different man when breast feeding each child this does not make marriage unlawful between the children. CR # (1277):- With all the required conditions existing in breast feeding the woman breast feeding is considered the child’s mother and the man as father and brothers and sisters and aunts and children all are considered as of the same relationships like those of blood relatives. CR # (1278):- If a woman breast feeds one’s wife who is only a baby this woman becomes unlawful for him in marriage and it is lawful to look at her because the woman breast-feeding one’s wife is like one’s mother by the same rule wife of a son on the basis of breast feeding is like the wife of one’s real son.

CR # (1279):- Marriage becomes unlawful between the children of the man sexually involved with breast feeding woman during her breast feeding his children by birth not due to breast feeding and the breast fed person, and the same rule applies to the breast feeding of breast feeding woman children by birth not those due to breast feeding and the breast-fed person. CR # (1280):- The father of milk recipient does not marry the children by birth or breast-feeding of man because of whose having sex the woman started to have milk to breast-feed, the same rule applies to the breast feeding woman children by birth only. If the wife of grand-father from mother’s side breast-feeds a child with the milk produced due to grand-father’s sexual activity, mother of the baby becomes unlawful to his father, regardless, the breast-feeding woman is mother of the mother of baby or is just wife of the father of the mother of baby.

CR # (1281):- There are two views about the lawfulness of a marriage between the children of the father of the milk recipient whose source of milk is different and the children of breast-feeding woman by birth and the children of owner of mother’s milk in all cases, (owner of milk is the person because of whose sexual activities the woman has milk). According to the view closer to reality such marriage is lawful, provided, there is no other reason like blood relation or breast-feeding such as if they are children from his other wife who is not a daughter of the owner of milk, otherwise, it is not lawful as in the above mentioned case, because the children of the father of

the baby are children of the sister of the children of the owner of milk and the children of the breast-feeding woman. CR # (1282):- If the older wife breast-feeds the younger one both becomes unlawful if he has had sex with the breast-feeding woman or assuming that

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the milk is his without having sex, otherwise, she becomes unlawful, and the precautionary rule about renewing the marriage contract with the breast-fed woman should not be ignored.

CR # (1283):- If one’s breast-feeding mother breast-feeds one’s minor wife when the owner of milk is the same person the marriage becomes unlawful but there are two views about the unlawfulness of the grand-mother from breast-feeding to the child because she is unlawful due to blood relations or its lawfulness because of different milk owners, according to a strong viewpoint the first view is applicable. CR # (1284):- It is preferable to choose a righteous, chaste and intelligent Muslim woman for breast-feeding. CR # (1285):- If the milk recipient has a brother who is not breast-fed with him it is lawful for him to marry his brothers breast-feeding woman or her daughter and if he has a sister who is not breast-fed with him it is lawful for her to marry the milk owner or one of his children. . CR # (1286):- It is lawful for a woman to breast-feed with the milk from his husband his brother or sister while she is still married to him this does not affect her being the sister of the child of her husband due to breast-feeding. The same rule applies if she breast-feeds the children of her own sister or brothers and her being the aunt from the father or mother’s side to the child of her husband.

The same is the rule if she breast-feeds the child of her own son and her being the grand-mother of the child of her husband does not affect her own marriage and the mother of the child does not become unlawful to her own husband. The same is the rule if either one of two co-wives breast-feeds each other’s grand-child or breast-feed her uncle or aunt from her any parent’s side,she does not become unlawful to her own husband even if he,in this case, becomes father of her uncle or aunt. Also the same is the rule if she breast feeds her own bother or sister of her husband in which case she is the mother of his brother or sister. She can breast-feed the grand-son of her husband to become the mother of his grand-son or breast-feed the son of the brother of her husband or his sister or aunts.

CR # (1287):- Breast-feeding is proved by testimony of four women separately without any man with them or by the testimony of two just people but not by the testimony of breast-feeding woman or the mother of the baby separately or with some men.

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(c) The third cause of unlawfulness in marriage is - Li’an. (alleging, on oath, against one’s wife to have committed fornication). It causes her to become _ unlawful for one forever to have her in marriage and the same rule applies if one accuses one’s dumb, speechless wife but if she is deaf the applicability of the above rule to her case is objectionable. (d) The forth reason which makes it unlawful for one forever to marry a woman is disbelief It is unlawful for a Muslim to marry a non-Muslim woman other than the followers of the Bible according to consensus of scholars, in permanent marriage or temporarily, but about the followers of the Bible there are two views: according to the one more clear it is lawful for temporary marriage, in fact, even for permanent, although, ignoring precaution is undesirable. The applicability of this rule to Zoroastrians is objectionable. CR # (1288):- It is not lawful to marry a Muslim woman who has just apostatized. The same rule applies to such man. Also it is not lawful for a Muslim woman to marry a non-Muslim. If one spouse apostatizes before having sex the marriage is revoked immediately. The same rule applies if it takes place on the part of the husband after having sex and one of his parents is a Muslim. Besides such case, according to the well known view, the contract’s revocation depends upon the completion of the waiting period but ~ there is objection in it and precaution should not be ignored. CR # (1289):- The waiting period of the wife of an apostate - Fitry whose one parent is a Muslim at his birth is the same as that of one whose husband has died. The waiting period for one whose husband is an apostate whose neither parent is a Muslim at his birth is the same like the waiting period for divorce.

CR the the her

# (1290):- If the husband of a tax-paying non-Muslim becomes a Muslim marriage stands valid but if only she becomes a Muslim before having sex marriage contract is revoked but after having sex she needs to complete waiting period.

CR # (1291):- If both spouses are non-Muslims nor are they of the followers of the Bible and one becomes a Muslim their marriage gets revoked at once if it is before sex. If it happens after sex, it depends on ending of waiting period.

CR # (1292):- One who has more than four non-Muslim and non-followers of the Bible wives who also become Muslims if he then chooses four of them, the marriage of the rest is void.

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CR # (1293):- If one who has four wives becomes a Muslim his marriage stands valid if they are more than four he chooses four and the marriage of the rest becomes void.

CR # (1294):- The marriage of a person in his death-bed is valid, provided, he performs sex, but if he dies before doing sex the marriage is void and his wife is not entitled to any dowry or inheritance, regardless, he dies of the same illness or some other reason such as being killed etc. If he dies after sex the marriage is valid and dowry and inheritance are established, if he recovers and then dies before sex she inherits his property and is entitled for half of the dowry. CR # (1295):- If a woman marries during an illness from which she dies or after recovery from the same before sex he inherits her property and she is entitled for half of the dowry. CR # (1296):- Husband’s inheriting a wife whom he may have married during illness and she dies before sex and then the husband also dies because of the same illness, is objectionable, precaution should not be ignored. CR # (1297):- Apparently, marriage contract during the illness of the husband from which he dies before sex is as no marriage. There is no need to observe waiting period for his death, apparently, this rule is also applicable to such illness that continues for years.

CR # (1298):- It is lawful for a Shiite woman to marry a Sunni Muslim, but it is undesirable, it is a precaution not to marry if there is fear for her straying from the right path in which case it is unlawful and the opposite of this case is also lawful except if there is fear about his getting to straying from the right path. It is undesirable to marry a corrupt person and such undesirability is more emphatic if the party is a drunkard. CR # (1299):- Marriage in the form of Al-Shughar which means agreeing to make one woman marriage the dowry for the marriage of another is unlawful. CR # (1300):- It is lawful for a free woman to marry a slave, and a Hashimite woman to marry a non-Hashimite, or Arab to marry a non-Arab and vice

verse. CR # (1301):- It is not lawful to propose marriage to a married woman or one during her waiting period after a revokable divorce but it is lawful in the case of irrevocable divorce and also to one’s own divorced wife unless she is

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unlawful for him forever to marry or a marriage with someone else that makes it lawful for him to marry her again, is required.

CHAPTER ON TEMPORARY ADVANTAGEOUS.

FOUR MARRIAGE

(Mut‘a)

To form a contract for this it is necessary to have an offer like her saying Matta’tuka or Zawwajtuka or Ankahtuka Nafsi, and an acceptance by the other party like Qabiltu and it is necessary to mention the dowry and the period of time which would not exceed the usual lifetime of the parties, otherwise, it will be a permanent marriage according to a more clear view, if the dowry is not mentioned the contract is void. CR # (1302):- If the mention of the duration of time is forgotten, whether in such case it is void or it becomes a permanent marriage there are two views about it and the first view is more clear. CR # (1303):- It is unlawful to marry in mut’a (temporary marriage) non-Muslim (other than the followers of the Bible) or a slave girl upon a free woman without the permission of the latter or the daughters of aunts from both the father and mother’s side without the permission of their mothers’ aunts. It is detestable to do Mut’a with a virgin or a prostitute if her such behavior is public, due to a necessary precaution mut’a must not be done with her.

CR # (1304):- There is no limit in the number of wives in temporary marriage, thus, one can marry as may as he may wish and there is no limit for the amount of dowry, it also is lawful to assign a certain amount of work like sewing or teaching as the dowry as well as a certain right which could be transferred like that of reservation etc. If the husband waives the remaining times of the duration of this form of marriage before sex; half of the dowry is established, according to a more clear reason, if he or she dies or the time expires the dowry is not reduced even if it is before sex.

CR # (1305):- Dowry (Mahr) as a whole in this form of marriage becomes her property after she makes herself available but if she reduces some of the time her dowry is also reduced to the same ratio, regardless, such reduction

of time is on purpose or because of some compelling reasons, except the

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menses cycle etc., in which time it is not lawful to have sex. The interruption or reduction of time means interruption in time for sex not any other forms of enjoyment in which if interruption takes place when she is available for sex nothing of the Mahr is affected, if she is not available for some times for sex due to his inability to do sex, to say that some of the dowry is also affected because of this is objectionable.

CR # (1306):- If it is discovered that the contract is void, she is not entitled to any dowry before sex but after it she will have, in temporary marriage not in permanent one, either the specified dowry or a par value dowry whichever :Se if she did not know that it is void, but if she knew it, there is no dowry or her. CR # (1307):- The children of a temporary marriage are related to the husband if he had sex with her even if he may have purposely discharged semen outside of her private organ. The rule of having sex applies to discharging semen outside around her private organ and the husband has no right to deny the child if it is possible that the child could be his, but if he decisively denies the child, apparently, it is effective without going through the process of Li’an (sworn allegation of fornication) to her, unless he has before professed in favor of the child to be his. CR # (1308):- If he waives in her favor the remaining of the time with a condition that she would not marry Mr. ’A’ both waiving and condition are valid and it is obligatory for her to stand by such agreement but if she marries even out of disobedience her marriage according to a strong view is valid.

CR # (1309):- If they agree in a settlement that he waives his right to the remaining time and that she would not marry Mr. ’A’ the settlement is valid and it is obligatory for him to waive and if he refuses he is forced by the high authority in Sharia to do so and if this cannot be done the high authority waives it, and it is not lawful for her to marry Mr. ’A’ but if she did the marriage is valid. If the settlement requires her to marry Mr. ’A’ it becomes obligatory for her to do so and if she refuses, the high authority forces her to do so and if this is not possible the high authority marries her to Mr. ’A’. CR # (1310):- A non-pregnant after the time expires or after the time is waived in her favor, observes a waiting period of two full cycles of menstruation and an equivalent of such time for one or both cycles is not enough. If she is of the age of experiencing menses and is not experiencing, she must wait for 45 days, according to a necessary Ihtiyat and if her husband dies she must wait for 4 months and ten days if she is free, and if she is a slave girl she waits for two months and five days, and a pregnant waits

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until delivery or 4 months and ten days whichever is longer, if it is because of his death, in fact, the same rule, for precaution, applies to other cases too. CR # (1311):- Before the time expires it is valid to renew the contract in a permanent form the temporarily married wife. CR # (1312):- If the parties disagree on whether it was permanent or temporary form of marriage it is not far from reality to give priority to claiming it to be of the temporary form with an oath on his part even if there is no testimony in favor of permanent form. CR # (1313):- It is not lawful to separate the time from the time of the formation of the contract like to marry after one month from the time the contract is formed. It is said that it is lawful but such a view is weak. CR # (1314):- It is lawful for her to set a condition on him not to have sex and it is obligatory for him to observe it but if she revokes such condition, having sex becomes lawful. CR # (1315):- it is lawful to marry temporarily a minor girl even if the time is just very short because it is lawful to enjoy her company without sex which is not lawful before her maturity. CR # (1316):- The validity of a temporary marriage contract with a minor girl for such a short time in which sexual advantage is not possible is lawful. CR # (1317):- It is lawful for the guardian of a minor boy to waive his right of time if it is in the interest of the child. CR # (1318):- In a temporary marriage it is not obligatory for the husband to provide all her expenses, unless a condition requiring it is set in the contract or along with some other binding contract. CR # (1319):- There is no divorce or Li’an or inheritance because of temporary marriage, unless a condition requiring such things is set in the contract to make it effective.

CHAPTER FIVE ON THE DEFECTS (’UYUB) CR # (1341):- Man’s defect which give the female the right to revoke the contract if she learns about such matters after the contract, are of four kinds:

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(1) Insanity.

(2) ’inan: Inability to do sex. (3) Emasculation: If it has taken place in a defrauding way before the contract when she had no knowledge of the condition.

(4) Al-Jubb: A condition with which one is not able to do sex at all and it existed before the contract . CR # (1342):- The defects in woman that give men the right of having the choice to revoke the contract are of seven kinds:

(1) INSANITY (2) LEPROSY (Causing whiteness of skin).

(3) LEPROSY (4) AL-QURAN: (abnormal growth of certain materials in vagina preventing to have sex)

(5) AL-IFDA: A cut of menses and urine passage wall by having sex.

(6) BLINDNESS (7) PALSY, PARALYSIS, also very much noticeable lameness. The right in favor of the husband to revoke the contract is established only if such defects existed before the contract. Whether such right can be established if the defects came back after the contract and before sex is objectionable, according to a view closer to reality it can be established, although the precautionary rule should not be ignored. CR # (1343):- The kind of right mentioned above in favor of both the male and female can become effective in both the permanent and temporary marriages and, apparently, immediate action is not required and a delay does not affect the validity of such right. CR # (1344):- Revoking of contract due to such reason does not require divorce and there is no dowry payable if the husband is revoking before sex, but after sex she is entitled to the specified dowry he pays it if he has cheated

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but if it is she, she is not entitled to dowry; the same rule applies if she revokes the contract before sex, except in the case of Al-Li’an in which case she is entitled to half of the dowry. CR # (1345):- The words of the party who denies the defect are accepted on oath while no testimony exists against it. CR # (1346):- In the case of inability to do sex it is necessary to present the case to the high authority in sharia who after certain inquires gives one year’s time in which time if he can perform sex with her or some one else, the contract is not revoked, otherwise, it is revoked if she wanted it. If he refuses

to appear before the high authority the rule of giving time still applies to him. CR # (1347):- If one marries her thinking that she is free and it is then discovered that she is a slave girl, he can revoke the contract and she is not entitled to any dowry if no sex is done with her and he can demand anyone who may have cheated in the matter if the cheater is not the master, he is entitled to 1/10 of her price if she is a virgin, 1/20 if she is not virgin. CR # (1348):- If she marries thinking him to be free but he happens to be a slave, she can revoke the contract and receive payment for dowry if it is after sex not before it. The same rule applies if he says, "I am from such and such family but

something different is discovered.

CR # (1349):- If he marries with the condition of her being virgin and it is discovered that she is not, he can revoke the contract.

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SIX (MAHR)

Dowry’s definition: This word Dower or Dowry used in this context and the meaning intended thereby is somewhat different from its verbal sense. Dower or dowry in this context is the sum of property that must be paid or is payable to form a valid marriage contract. It must be paid to the female party. CR # (1350):- The woman becomes the owner of the dowry by the contract and it is reduced by one half by divorce before sex, also because of the death of one party, according to a more clear reason if sex is performed by the front or back the dowry becomes an established right and the same rule applies if he tears her virginity by his finger and without her permission. CR # (1351):- If some one else removes the virginity of a woman by sex or other means he is liable for the equivalent amount of dowry of a virgin. CR # (1352):- It is valid for the dowry to be a substance or a payable loan or the profit of some thing and it also is permissible if it is paid by some one other than the husband and if the husband divorces her after sex one half of the dowry is refunded to him not the husband.

CR # (1353):- There is no limit for the maximum or the minimum amount of dowry but it is necessary to specify the amount even though it is not fully described or seen and if it is payable at a later time such time must be specified even in a general sense like the arrival of certain travellers or the delivery of a child etc., but if the time is totally unknown like at a time later

on, the arrival of a traveller etc., the contract is valid as well as the dowry according to a more clear reason but the timing will have no effect. CR # (1354):- If the dowry is not mentioned it does not affect the validity of the contract and she after sex is entitled for an equal amount of dowry and after divorce before sex she is entitled for certain benefits if the husband financially does well and the poor provides such benefits according to his ability. If one party dies before sex there is no dowry and benefiting.

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CR # (1355):- If sex is performed by mistake she is entitled to an amount equal to the dowry, regardless, the sex is due to invalid contract or without contract.

CR # (1356):- If one marries them by the order of one of the parties such contract is valid and the party giving the order is bound by his/her own order as long as the dowry is not more than traditional dowry if she is the one who has given the order. If the party giving the order dies before the contract and sex she is entitled to certain benefits and after sex she is entitled to an amount equal to her dowry if the order is to the husband but if it is to the wife it is not far from reality to have the traditional amount of dowry. CR # (1357):- If one marries a woman for a dowry being a servant or a house in a general sense, in terms of price and quality a medium price and condition is observed. If he says, "I marry Miss ’A’ for the traditional dowry, it will be five hundred ’Dirhams’.

CR # (1358):- If two tax-paying non-Muslims marry and set some wine as the dowry it is valid. If they both become Muslims before giving possession of the dowry the wife is entitled for the cost of the wine if one of them becomes a Muslim before possession, apparently, the cost of wine is payable. If a Muslim marries a woman and the dowry payable is some wine there are several views about it, according to the stronger among them the contract is valid and the dowry payable in the form of an equivalent amount is established if sex is performed. CR # (1359):- If an unlawful condition is included in the marriage contract it is void but not the contract. If a condition is set that requires the husband not to take the wife out of her home town it is binding. It is lawful for the wife to set a condition in the contract or along with some other contract that requires him not to marry anyone else. It is obligatory for him to stand by such condition but if he did marry another woman also, his marriage is valid. Also it is permissible to set a condition which authorizes her as agent of the husband to divorce herself or if he did certain things like a very long journey or a crime that would imprison him for a long time etc.,she thus is the agent to divorce herself on his behalf and it is not lawful for him to cancel such appointment and if she does divorce herself in this way, it is valid. CR # (1360):- About the quantity of the dowry the words of the husband are accepted and if he denies the dowry after sex he must pay either an amount equal to a dowry payable to her on the basis of common practice or whatever amount she claims whichever is less. If she claims sex and he denies it, his

words are accepted with oath on his part.

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CR # (1361):- If a father or grand father from father’s side marries a female for his minor son, he is responsible for the‘ Mahr’ dowry according to Ihtiyat, if the boy does not have any property, otherwise, the boy is liable for the payment. CR # (1362):- A woman can refuse sex before she is paid her dowry, unless the dowry is supposed to be paid after an appointed time in which case it is not lawful for her to refuse even if the payment time may have become due, regardless, he is poor or rich, if she has already agreed for sex she cannot refuse after this in order to receive payment and if she refuses she risks to become a recalcitrant and violator of the marriage rules ( of certain unfavorable results ).

CHAPTER ALLOCATION

SEVEN AND

RECALCITRANCE

CR # (1363):- According popular view among the scholars spending one of four nights becomes obligatory with the other wife, but it is not far from reality that there is no such obligation specially for one who has only one wife. If one of the wives gifts her time he can spend it as he likes, if she gifts one night to her co-wife he spends it with her,if he agrees only spending the night is obligatory, not sex.

CR # (1364):- If one marries a free woman, a slave girl or a follower of the Bible the free woman will have two nights out of eight and the slave girl or the follower of the Bible one night out of eight. The wife of a temporary marriage does not have any allocated time. The virgin wife at the beginning, specially, has seven nights and the non-virgin three. It is preferable to spend equally on the wives.

CR # (1365):- It is obligatory for the wife to make herself available and remove the causes of dislike. He can beat the recalcitrant wife (the violator of marital rules) without causing her to bleed or breaking her bones after giving her enough advise and isolating her, all these in turns. If he violates the marital rules she demands from him to follow the rules and she can refuse some of his rights or all of it to attract him.

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CR # (1366):- If each of the wife and husband starts to dislike each high authority in sharia enforces the rule of appointing arbitrators relatives of the both parties or non-relatives if the former are not for precaution, if they can make peace they arrange it and if separation more proper, they recommend the parties for divorce.

629 other the from the available, they find

If they have differences it is necessary for the wife to exercise patience and stay with the husband, if disobedience is from her side or from both sides, if it is from the husband only she can present her case to the high authority who orders the husband to come back to her and provide her expenses or divorce her and let her go. If he refuses both, the high authority divorces her to set her free from the bond of marriage.

CHAPTER

EIGHT

CHILDREN CR # (1367):- The children of a woman are related to her husband in both the permanent and temporary marriages with the following conditions. (a) Performing sex, and certainty of semen discharge or the possibility of such thing or discharge outside around the female organ. (b) Passing of six months from the time of sex or the like. (c) Not exceeding the maximum time of pregnancy; nine months or ten months or a year. The first case is well known and the last case is supported by more clear reasons.

CR # (1368):- If the husband is away from the wife for more than the maximum time of pregnancy and a child is born the child will not be related to him. CR # (1369):- The words of the husband are accepted about not having sex and if he professes it and then denies the child, the child is not refused except by means of LY?AN ’(sworn allegation of fornication’ in the case of permanent marriage.

CR # (1370):- It is not lawful for a fornicator to relate the child to himself although he may marry the mother after fornicating her; the same rule applies if he fornicates a slave girl, makes her pregnant and then buys CR # (1371):- If a free woman or a slave girl after divorce is married to another man and she brings a child within less than six months from the

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second marriage and the second husband’s sex the child is related to the first husband and it proves the second marriage’s taking place during the waiting ade after the divorce, thus, she becomes unlawful for the second husband

orever.

If the child is born after six months from the time of sex the child is related to the second husband, regardless, it is possible for it to belong to the first husband like the birth’s taking place within the maximum time of pregnancy from the last sex with first husband or there is no such possibility. If the child is born in less than six months after sex with second husband and after the maximum time of pregnancy after the last sex with the first husband the child will be related to none of them. CR # (1372):- If a woman is divorced and a man does sex with her during a waiting period other than that for a revokable divorce by mistake and because of confusion the child cannot be related to anyone it is said that the case is decided by drawing lot and it also is said that the child is related to the second man and perhaps it is more clear. The same rule applies if in a temporary marriage the husband waives his time or it expires and a man does sex by mistake and because of confusion the child cannot be related to any one. Also if one does sex with his wife during her waiting period after a revokable divorce by mistake if the child can be related to someone it is decided accordingly, otherwise, by casting lot. CR # (1373):- If two wives of two husbands or of one husband give birth and the children get mixed beyond distinction (and if every other means fails) the case is decided by casting lot. CR # (1375):- If a stranger performs sex by mistake and she gets pregnant the child is related to him and if she is married she returns to her husband after completing the waiting period from the second.

CR # (1376):- Sex by mistake means a sex to which one is not entitled but he thinks he is entitled, regardless, he could legally and reasonably be excused or not.

CR # (1377):- If a woman inserts a stranger’s semen into her vagina she has committed a sin and the child is related to her and the owner of semen, if the child is a female it is not lawful for the owner of semen to marry her; the same rule applies if the semen belongs to her husband except that she has not committed any sins in this case.

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CR # (1378):- It is lawful for a woman to use contraceptives if it does not cause a major harm although the husband may not agree.

CR # (1379):- Abortion is not lawful even if it is only a sperm just entered the ovum in the womb and blood-money must be paid for the creature just conceived; as it will be dealt with later in the section on the rules of

inheritance. CR # (1380):- If one does sex to his wife and she does lesbian sex with a virgin who becomes pregnant the wife is stoned and the virgin is whipped and the wife also is liable for the virgin’s dowry and the child is related to the owner of sperm as well as to the virgin because of a Hadith on the matter. CR # (1382):- It is preferable to both the new born, say Adhan in the right ear and Eqamah in the left ear and make the child taste a little of the soil from the grave of IMAM HUSSAIN (A S.) and some water from EUPHRATES and name him with the names of the Prophets or IMAMS (AS.) and if the name is Muhammad his second must not be made "ABUL QASIM’, shave his head on the seventh day and arrange ’AQIQA’ a feast after this and give charity by the weight of the hair of the child’s head in gold or silver and pierce a little hole through the lower end of his ear, and circumcise him on that day; circumcision is obligatory at maturity if it is not done before and reduce (the smal! bump in their private organ ) the girls psn if they are mature it is better to do this to girls after they are seven years old. CR # (1383):- It is preferable to feast with a ram for boys and sheep for girls, the animal should be healthy and meaty. In some Hadith it is said that the animal should be a meaty one and it is undesirable for the father to eat of the meat of such animal or the dependents of father. According to the precautionary rule the mother should also not eat such meat. The animal can be a sheep, a cow or small camel. The best is a ram. It is said that it is detestable to break the bones of the animal. It is preferable to give the nurse 1/4 of meat and give the rest to believers. Better than this is to make a feast and invite ten people or more and it is better to cook only meat and salt. The practice of wrapping the bones with a white sheet and burying them has no ground. CR # (1384):- If one reaches maturity and "AQIQAH‘’ the birth feast is not pee for him, it is preferable for him to arrange the ’AQIQAH?’ feast for imself.

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CR # (1385):- It is not enough to give in charity the cost of "AQIOAH?’ if a sacrifice is offered for this it is sufficient for "AQIQAH’.

CR # (1386):- The best person to breast-feed the child is the mother and a free mother is entitled to be paid by the father if the child does not have any property, otherwise, payment is made from his property and if the father is dead payment is made from the property of the child if any, otherwise, from the property of the guardian of whose dependent is the child as it will be mentioned later. The mother can not be forced to breast-feed her child. CR # (1387):- The duration of breast-feeding is two years and it is permissible to increase it and the minimum is twenty one months according to the well known view. The mother has the priority over the other women if she agrees to breast-feed for the same amount of wages as the other women or volunteers for it.

CR # (1388):- The mother is more rightful for the custody of the child if she so desires and she is a free Muslim, wise and trustworthy toward the child for two years even if the child is female. It is better to leave the child in the custody of the mother for seven years even if the child is male. Her right of custody loses effect if she marries someone but not if she fornicates.

CR # (1389):- If the father dies after the custody is is a slave or a disbeliever or insane, the mother custody until the child is mature than the executor grand-father and grand-mother and other relatives

transferred to him or he is more rightful to the of the father’s will, the even if she has married

someone. CR # (1390):- If the mother dies during the time of her being the custodian of the child, the father is more rightful to the custody than the executor of the will of the mother, her father and mother and her other relatives. If both parents die, the grand-father from the fathers’ side is more rightful for the custody and in the event of his death the executor of any of the parents’ will is the custodian and if he is no more; establishing of custody right for the nearest relatives is objectionable. CR # (1391):- If the child becomes mature the guardianship of parents does not remain effective in his case. He has the choice to live with any one of them or join someone else. CR # (1392):- If the mother asks for breast-feeding wages which is higher than what others ask, if there is someone who does it voluntarily and the father also wants someone other than the mother to breast-feed, in such case, ™

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to say her right of custody ineffective is objectionable although according to a more clear reason it does not remain effective any longer. CR # (1393):- If she marries and loses her right of custody whether or not such right can be re-established by divorce from the second marriage there are two views about it according to a more strong view the negative is true.

CR # (1394):- The right of custody of mother can be dropped and waived but not the right of custody of father or grand father. CR # (1395):- Apparently, the mother is entitled to receive payment as custodian of the children, provided, volunteer is not available.

she has not volunteered

or some

CR # (1396):- If the father or others get the child from the mother’s custody even in a hostile manner the father does not have to compensate for her right of custody.

CR # (1397):- It is valid to waive and drop the future custody right or waive it on the daily basis.

CHAPTER NINE EXPENSES Expenses are of many kinds:(a) Expenses of the wife. (b) Expenses of close relatives. (c) Expenses of property. The expenses of the wife of permanent marriage is obligatory on the husband as food, clothing, home and furniture and other household goods for cleaning and maintenance according to her social condition, provided, she lives with him but if she leaves him without good shar’i reasons, she loses her right of expenses. According to well-known view, expenses are obligatory on the husband only as long as she does not violate the marital rules and is not recalcitrant in yielding to his marital rights or causing him to dislike her, but to consider scandalizing and verbal abuse as a violation of such rule is objectionable.

CR # (1398):- Apparently, the expenses of taking showers and cleaning also is part of such expenses if the house does not have such facilities as well as the expenses of child-birth and commonly needed medical expenses or even

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the expenses of more serious illness which cost lots of money as long as they are bearable. CR # (1399):- The expenses of the time between the marriage contract and ceremony is not obligatory on the husband because common practice is an indication and proof that it is waived and dropped for this period. CR # (1400):- The expenses of a wife of a permanent marriage is obligatory even if she is a non-Muslim tax-payer, slave girl or a minor and if she is divorced in a revokable form of divorce, her expenses are still due and payable but if the divorce is in an irrevocable form or her husband may have died she is not entitled to any of her expenses to be provided, if she is not pregnant but if she is pregnant her expenses are due on the husband in the case of divorce but not if the husband dies. If such expenses are not provided : time they are still payable dues and are transferred is part of her legacy to er heirs.

CR # (1401):- The expenses of the parents are obligatory for the son and the expenses of the children are obligatory for the father. One does not become free of such obligation if the dependent is able to receive public help from ZAKAT and KHUMS if this affects their public image and reduces their social status in fact, even without such consequences still the father and children have to fulfil their obligation. Spending is not necessary practically they are receiving enough for their expenses or they are rich or are able to earn.

CR # (1402):- The obligation of spending is effective only when one is able to spend if not the expenses of wife remain as payable debt not those of other relatives and dependents. CR # (1403):- To the well known view the expenses of children in the absence of father or grand-father are obligatory for the mother and in her absence it is the obligation of her father and mother in equal amounts and if there is the mother of the father she also bears her share of such expenses but this view is not free from objection, although, it is based on a precaution. Such expenses are not obligatory for others besides the parents and grandparents, like aunts, brothers and sisters and their children. CR # (1404):- One’s own expenses come before relatives and those of the nearer among them are prior to those not so near, thus, son is prior to grand-son and if they are all of the same degree and one is not able to provide for all of them he chooses any one or more from among them.

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CR # (1405):- The expenses of a slave are on the master who may pay it from the slave’s earnings and pay more if the earnings are not enough. Due to precaution the owner must spend for the animals he owns for their food, sell or slaughter them if they could be used for food.

CR # (1406):- To the popular view the ability to provide expenses is not a condition for the validity of marriage contact. If a woman marries a man who is not able to provide her expenses or such inability comes later on after marriage contract is formed, she will not have the right to revoke the contract not by herself or through the high authority in shari’a but it is lawful for her to present her case to high authority who then orders the husband to divorce her and if he refuses the high authority divorces her without him. If one who is able to provide the expenses of his wife but is refusing to do so, again it is permissible for her to ask the high authority in Shari’a who orders him to do either one of the two and if he refuses and it is not possible to acquire such expenses from his property it is lawful for the high authority to divorce her, regardless, the husband is present or absent. If the husband is missing but she knows that he is alive it is necessary for her to wait even if there is no property for him to spend for her and there is no one as his guardian who takes such responsibilities. More details of missing husband will be mentioned later. CR # (1407):- It is not lawful for the permanently married wife to leave the house without the permission of the husband. She must not deny him of any sexual pleasures without good reason. If she did follow such rules she is entitled for all her expenses to be provided by the husband like food, house, clothing etc. and if he did not provide her such expenses when he is able to do so he remains indebted to her. CR # (1408):- The consumable articles like food items and hygienic materials become the property of the wife as soon as she receives them. She can demand from him to give her possession of such items or agree with whatever he brings as it is common practice, she eats and uses his food etc. The durable goods like house, the servant are for her use not to possess and she cannot demand from him to give her possession, apparently, the household materials such as rugs etc., are also of the second category of household items but to consider clothes an item of the first or second category is objectionable, to consider them of the first category is more near to reality. It is not permissible for her to move the items of the second category to others or use them in a way different from common practice without his permission, but all of these is permissible in the first category.

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CR # (1409):- A wife violating marital rules, as mentioned, loses her right of expenses, but if she repents and comes back, her rights are restored and she is entitled to receive all expenses. CR # (1410):- If the husband becomes a violator of marital rules and does not provide the expenses of his wife without any good reason her case is presented to high authority in sharia but lawfulness of her becoming a violator of marital rules and refusing her husband’s right in such case is objectionable. CR # (1411):- If the husband does not have any property to spend from for the wife but is capable to earn it is necessary for him to earn unless such earning is against his status, in which case her expenses remain as payable debts on him, apparently, it is obligatory for him to borrow money if he knows of his ability to pay back but because of his thinking of his inability to pay back later to consider such obligation as dropped is objectionable according to reason nearer to reality such obligation in the latter case also remains effective. CR # (1412):- The expenses of the wife could be waived on the daily basis but waiving it for all future times is not free from objection, although according to a more clear reason it is lawful but the expenses of other relatives cannot be waived because such expenses by nature are purely obligatory because of law (not because of a contract and a practical case to deal with).

CR # (1413):- In the case of relatives it is enough to provide for them at one’s own house and it is not necessary to give them possession or provide for them at some other home, if the dependent makes such demands, it is not necessary to do so unless there are some good reasons because of which the dependent cannot receive the benefit at the provider’s house because of weather or some other unfavorable reasons on the part of the dependent.

CR # (1414):- If travelling becomes obligatory for a wife her expenses on the journey are still obligatory on the husband. The expenses of the journey are also on the husband if the journey is related to her life like medical treatment etc., but if the journey is her own obligation like performing HAJJ etc., it is not obligatory for the husband. Her liabilities like expiation of certain violations in the worship acts are not the husband’s responsibility.

CR # (1415):- If there is dispute between wife and husband while they agree on her right of receiving her expenses, apparently, the words of the wife are

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accepted with oath on her part, regardless, the husband is absent or the wife is separated etc. CR # (1416):- If a wife gives birth and she is divorced in the revokable form of divorce, and she claims as being divorced after birth so she can receive her expenses and the husband claims the divorce to be before birth and her waiting period is already over and, thus, there is no expenses for her, in such case the words of the wife are accepted with oath on her part if she takes oath she receives her expenses, but he is bound by what he has already professed and it is not lawful for him to revoke the divorce. CR # (1417):- If the wife and husband dispute about poverty or riches, the words of the husband who professes poverty are accepted with oath on his part, but if the husband who was rich claims to have become poor and the wife rejects it, her words are accepted with oath on her part. CR # (1418):- Wife’s entitlement to her expenses does not require her to be poor and needy, even if she is rich she is entitled to receive her expenses.

CR # (1419):- The husband has the choice to provide the wife with her needs like food etc. already prepared or give her the materials for such needs. But if the materials require certain expenses for preparation such expenses also are his responsibility.

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DIVORCE

CR # (1420):- The Divorcee ( male ) must be mature, of sound reason, free of compulsion and aware of his decision, thus, divorce by a child, even a teenager, insane, even if his illness is periodic and divorce takes place during his illness, the divorce of one compelled even if he may later agree, and the divorce of a drunk etc., of unsound awareness and intention, is not valid. It is permissible for the guardian of an insane person to divorce on his behalf if it is for his interest, and it is not permissible for the guardian of a child and a drunk person to divorce on their behalf Whether the guardian of a child can waive the time of marriage of a temporary marriage on behalf of a minor,

there are two views about it, according to the more clear one it is lawful.

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CR # (1421):- For a divorce there must be a permanent marriage contract. Thus divorce of a temporary marriage is not valid, and it also is necessary for her not to have been experiencing menstruation or child birth blood discharge if sex is performed with her and that she is not pregnant and that the divorcee is present. If sex is not performed with her or she is pregnant clearly it is lawful to divorce her even if she is experiencing menstruation. The same rule applies if the divorcee is not present who does not know her condition, regardless, the divorcee is the husband or his agent who is authorized to undertake the matters of divorce. It is necessary for the validity of the divorce, precautionary, that a certain period of time must pass so that it is learnt that she according to her experience of menses her condition is changed from one cycle of clean condition to another clean of menses condition, and precautionary, when such period of time is over and she is divorced her divorce is valid even if she may have been experiencing menses during divorce. The same rule applies to a person who is at home but has no way to know about the conditions of his wife to be divorced as regards her menses like one imprisoned etc. In the case of a man who is absent and away from home and is able to know by calculation the condition of his wife his divorce is not valid even if it takes place after the month’s period, except if it is discovered that she was not experiencing any menses. CR # (1422):- The stipulation of a month’s time in the divorce of an absent person, is for the wife who experiences menses. If she does not experience menses when she is of the age of experiencing menses, it is permissible for the absent husband to divorce her after three months from the time of sex even if one can think of menses taking place at the time of divorce.

CR # (1423):- The woman to be divorced must be in a menses-free condition in which she has not had any sex with her husband if he divorces her in a menses free time in which he has done sex with her it is not valid, unless she is a minor or is above the age of experiencing menses, or clearly pregnant,

the divorce of such women is valid even if it takes place during a menses free-time in which sex is done to them. The same rule applies to a woman whose husband is absent who does not know about the condition and she is divorced after the period of time mentioned earlier (one month’s time), precautionary, such divorce is valid even if it may take place in a menses free time in which he has had sex with her as mentioned before. CR # (1424):- If the wife says that she is free of menses and she is divorced by the husband or his agent and then she says that she had menses during divorce her words are not accepted without testimony and her first words are carried on until the opposite is proved.

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CR # (1425):- If the absent husband divorces his wife before the time mentioned earlier and it is discovered that the divorce has taken place in a menses free time in which no sex is done, the divorce is valid. If a husband at home divorces his wife in a menses free period in which sex is done and whose pregnancy is not clear, the validity of her divorce is objectionable, precaution to re-doing the divorce should not be ignored. The same rule applies if sex is done during her experiencing menses intentionally or by mistake then is divorced after she is free of menses, in fact, very possibly it is void; if she is divorced on the basis of considering the menses-free state to be still existing a process called (Istishab) or the Istishab of no sex the divorce is valid, apparently, but its validity, in fact depends upon when the conditions are met.

CR # (1426):- If a women’s menses is confused with her being of the age of experiencing menses but because of accidental reasons or a usual habit of her likes, like during the days that she breast-feeds or at the beginning of her age of maturity it is permissible to divorce her in menses-free time in which sex is done if he was separated from her for three months and if she is then divorced after the said time her divorce is valid even if it is in the menses-free time in which sex is done. CR # (1427):- For divorce it is necessary to specify the woman to be divorced if he has more than one wife, if he has only one wife and says Zawjati Taliq (my wife is divorced,) it is valid, if he has two or more wives and says ’Zawjati Taliq’ if he thereby intends a specified one out of the two or three, it is valid and his interpretation is accepted, but if he does it without specifying, the divorce is void according to a strong reason.

CR # (1428):- Proxy is permissible for finalizing divorce, regardless, of the principal being absent or at home and likewise about agent. CR # (1429):- The words to formulate divorce are such as:(ANTI TALIQ)( you are divorced, (HIYA TALIQ,) she is divorced, or (Fulanah Taliq), so and so is divorced. By using words like, I divorced so and so or (Tallaq Tuki,) I divorced you, or (Anti Mutallaqah,) you are divorced, or (Fulanah Mutallagah,) so and so is divorced, is objectionable,in fact, according to a more clear reason it is void.

CR # (1430):- Divorce cannot take place by writing or making gestures in the case of people who are able to speak, but in the case of inability to speak it is valid. If one gives his wife the choice and authority to divorce herself and she does choose to divorce herself it is said that such divorce takes place in the revokable form of divorce, and it also is said that divorce in this way never

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takes place is based on a strong ground. If he is asked, "did you divorce your | wife so and so," and he says, "yes," intending thereby imperative way of grammatical expression, the creation of divorce; it is said that divorce in this way takes place and there is the opposite view also and this view is based on stronger ground. CR # (1431):- For the validity of divorce it is necessary not to make it dependent upon a condition that may possibly come into existence or a quality known to come into existence in future, like one’s saying, "If A’ comes you are divorced, or if the sun rises you are divorced," it is void. Ifa possible condition exists is one of the elements that validate divorce, like one’s saying, "If you are my wife you are divorced" or that the quality known to come into existence is not taking place in future but simultaneously with divorce like one’s pointing to his hand and say, "If this is my hand you are divorced it is valid."

CR # (1432):- It also is necessary for the validity of divorce that two just people hear the designated terms for divorce pronounced, and it is not

necessary to know the women’s person to a testified degree of knowing her, thus, if one says, "my wife ’H’ is divorced," in the presence of two witness it is valid even though they do not know her personally or even believe a different woman to be her still it is valid. If the agent of the husband divorces her the witness of the agent or the husband is not enough. The testimony of agent to support his own proxy for the husband to create the divorce is effective and sufficient.

CHAPTER DIVORCE

ON

KINDS

OF

Divorce is of two kinds:(a) Innovative. (b) Traditional.

CR

#

(1433):- The

innovative

and heretical

is the divorcing of a

non-pregnant woman during her experiencing of menses or during the time of childbirth blood discharge while the husband is at home and present and is able to know her condition, or even if he is absent but is able to know her

condition divorce her in one’s absence without the ability to know her condition and before the passing of the specified period of time, divorcing during a menses free time in which sex is done, when she is not yet above the age of experiencing menses, or a minor or pregnant, divorcing a woman who

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is supposed to experience menses but is not experiencing before the passing of three months or divorcing three times either at once like one’s saying,” HIYA TALIQ THALATHAN," she is divorced three times, or successively like (Hiya Taliq, Hiya Taliq, Hiya Taliq,) all are void except the three times of which only one is valid and the rest is void. CR # (1434):- If a non-Shia divorces his wife in a (a) manner of divorcing, it is permissible to marry the woman divorced in this manner because of his holding himself bound by such divorcing contract. If he divorces her three times it becomes irrevocable for him and it is not permissible for him to revoke the divorce, however, if he becomes a Shia after divorce the rules applicable to a Shia apply to him also.

CR # (1435):- The divorce according to Islamic tradition is of two kind: (a) Irrevocable and

(b) Revokable. (a) Is: 1 The divorce of a woman above the age of menstruating. 2 One below nine years of age. 3 One with whom no sex is done even in the back.

4 One who manages to get divorced by means of paying to husband in exchange for his divorcing her. 5 One who is divorced in (Mubarat), which is just like divorce for payment except that in this case dislike is from both sides when she still pays. 6 One who is divorced three times with twice assuming marital relations in between, even if it is by a new marriage contract, if she is free. Besides the above forms of divorce, is of the second (b) kind of divorce in which it is permissible for the husband to revoke the divorce and start marital relations. CR # (1436):- The kind of divorce in (1) with a waiting period on the part of the wife is the divorce by husband with the existence of all the necessary conditions, then he revokes it before she completes the specified waiting period and does sex and divorce her in another menses free time and divorces and revokes it and does sex and then divorces in her another menses-free time then she becomes unlawful for him in marriage until she marries another person and is divorced from him and is married to the first husband who then divorces her three times in the manner mentioned before,

after which she becomes unlawful for him in marriage until she marries

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another man and when she marries another man and is divorced from him and is married to the first husband in the manner mentioned before for the ninth divorce she becomes unlawful for him in marriage forever if she is a free woman but if she is a slave girl after every two divorces she needs to be married to another man and for the sixth time she becomes unlawful for him in marriage forever. Besides this, is other forms of divorce not divorce of waiting period. If the divorce is not a divorce of waiting period, according to the well known view,the divorced woman

does not become

unlawful for

marriage forever even if she is divorced more than nine times but this view is not free from objection, the precautionary rule should not be ignored, in fact her becoming unlawful for marriage forever, is not far from reality. CR # (1437):- A free woman after the third divorce becomes unlawful for marriage for the first husband in an absolute sense until she marries another man and a slave girl needs to be married to another man after every second divorce before she can marry the first husband. CR # (1438):- The traditional divorce is of different kinds: the traditional divorce in general which includes all kinds of divorce formed with the existence of all necessary conditions as opposed to innovative or heretical divorce, or as opposed to the traditional divorce with waiting period, the traditional divorce in which one revokes the divorce within the waiting period without sex and the traditional divorce in the special sense in which the husband does not revoke the divorce until the waiting period is over and then marries her.

_ CR # (1439):- According to the well known view for the other husband after every third divorce whose marriage after being terminated with divorce makes it lawful for the first husband to marry her again, the existence of the following conditions are necessary: that he must be mature and performs sex, with semen discharge according to Ihtiyat after a valid marriage contract of permanent form. If any of these conditions is missing it is not lawful for the first husband to marry her but it is not free from objection in case of marriage of one about to become mature and sex in the back. Maintaining such condition is based on precautionary rules. Just as such marriage removes the effect of three divorces it also has the same effect on less than three divorces.

CR # (1444):- If a woman is divorced and then she claims that it has taken place during her experiencing menses and the husband denies it, his words are accepted on oath and if the husband revokes the divorce and decides to resume marital relations and the wife claims to have completed her waiting period her words are accepted. If the completion of waiting period and his decision of resuming marital relations are known but it is not certain which

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one has taken place first, in which case the husband claims the decision of

resuming marital relations to have taken place first and the wife claims it to be after the completion of waiting period his words are accepted, regardless,the date of the completion of waiting period is known and the date of the decision to revoke the divorce is unknown or vice verse or the date of both is unknown.

CHAPTER ON

WAITING

TWO PERIOD

CR # (1445):- There is no waiting period in the divorce of a minor and the woman above the age of experiencing menses even though sex may have been performed with them to the front or back, and sex is considered to take place when glans (penis) is entered into the female organ even though no discharge of semen takes place, regardless, the sex is lawful or unlawful like doing sex during the days of obligatory fasting, or during the female’s menses. CR # (1446):- In a divorce after consummating of marriage period of an adult woman who has not reached menopause menses-free cycles. As soon as she begins to experience the third menses her waiting period is complete, thus, one whose cycles of not regular like one who only experiences one in four months, period is three months.

the waiting is three cycle of her menses are her waiting

CR # (1448):- The divorce-waiting-period of a wife who is not pregnant and who may not experience any menses while she is of the age of experiencing it because of her physical condition or some other reason like breast-feeding etc., is three months and such amount of time could be completed by adding part of the last months to the next if it may have started from the middle of a month or so. CR # (1449):- The divorce-waiting period of a wife who is pregnant even if her pregnancy is due to her husband’s semen entering into her womb without actual intercourse, is to the delivery of the baby.

CR # (1450):- The waiting period of a free and non-pregnant woman whose husband has died is four months and ten days, regardless, she is a minor or

grown up or one who is above the age of menstruating, who is a Muslim or not, any sex is done with her or not; the marriage is permanent or not and regardless, the husband is a minor or a grown-up, free or a slave, a sane or

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not. For a preferable precaution, the months should total 130 days, but if she is pregnant her waiting period is either 4 months and ten days or the child delivery whichever is longer. CR # (1452):- It is obligatory for a woman whose husband has died to observe a mourning condition during her waiting period, by avoiding make-up dress-up and beautifying herself by colors of dresses or whatever that according to common practice is beautification even though the color of dress is black but whatever is not beautification such as cleaning the body or clothes or fingers or taking a shower is not a violation of the mourning rules, regardless, she is a Muslim woman or a tax-paying non-Muslim woman, the husband is a minor or a grown-up. According to a strong reason the wife of a temporary marriage must also observe the mourning rules. Apparently, mourning is not a condition for the waiting period, thus, if she ignores it purposely or because of some reason it is lawful for her to marry after the waiting period is over and it is not necessary for her to re-start the waiting period and according to a strong reason it is permissible for her to go out of her house although it is undesirable unless it is a matter of necessity like fulfilling an obligation or a need. CR # (1454):- If one divorces his wife in the manner of a revokable divorce and then he dies during the waiting period his wife must observe the waiting period of a widow. If it is irrevocable she only completes the waiting period for a divorce and nothing else. CR # (1455):- The pregnancy the delivery of which is the end of waiting period is of a general nature which covers normal pregnancy or an aborted one, even if it is an embryo or a blood clot.

CR # (1456):- If the pregnancy is a twin the waiting period is over only when both are born. CR # (1457):- The knowledge of a child delivery must be certain; less than 100% is not enough, thus, 50% is out of question. Qualified testimony is enough even if it may not give one a knowledge of 51% or so. CR # (1458):- According to the well known view the waiting period of a pregnant woman ends with delivery, provided, the child could be related to the husband, thus, if the child for some reason like prolonged absence of the husband etc., cannot be related to him the delivery will not be considered as end of the waiting period, in fact, cycle of menses and or passing of certain months decide the waiting period but this is not free from objection, precaution should not be ignored.

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CR # (1459):- If the news and information is available about an absent husband and it is known that he is alive, the wife waits for him; the same rule applies if there is no information about him available but his guardian provides the wife’s expenses from the property of the husband or his own property. But if the husband does not have any property and his guardian also does not spend for her from his own property, if she still waits for him it is her own decision if she does not wait, according to well known view she presents her case to the high authority in shari’a who gives her four years’ time and then searches for him in places where he has disappeared, if any information is received that he is still alive she waits for him and if information says he is dead she begins her waiting period according to that of a widowed woman. If no information is received about him and the four years are over the high authority orders his guardian to divorce her and if he refuses, he is forced to do so and if he does not have any guardian or is not possible to force him the high authority divorces her and she therefrom begins her waiting period like a widowed woman during which she does not have to observe any mourning. After the waiting period she becomes a stranger to her husband and she can marry another man if she wanted. If the husband comes he can do nothing to her. The weli known view is very near to reality although some have rejected it. CR # (1460):- If the absent husband may have other wives who have not presented their cases to the high authority in shari’a, it is permissible for the high authority to divorce them on their request and on the basis of the four years already passed in the case of the wife who had presented her case or that the procedure has to start all over again there are two views about it, according to the one nearer to reality the procedure already completed is enough.

CR # (1461):- It is not far from reality to consider the passing of four years after the disappearance of the husband sufficient in the matter along with carrying on the search for him this time without the order of the high authority who also does order to search for him for a time and then orders to divorce her or divorces her. It is a precaution and a priority that the procedure should begin under the supervision of the high authority. CR # (1462):- If the husband disappears in a certain place or a certain direction and there are enough indications that he has not moved from such place or direction somewhere else; searching only in that place or direction is enough. CR # (1463):- If a complete search is done in a short time if there is any possibility that he could be found if the search is carried on for the remaining time even in faraway places it is necessary to search. If it becomes certain

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npc

that he cannot be found the obligation of searching ceases to exist but waiting for the whole 4 years is still obligatory for precaution.

CR # (1464):- Once the 4 years time is over and there is still some possibility to find him if searching is continued searching is not necessary whatever is done during the appointed time is enough. CR # (1465):- It does not matter the absence of a husband is because of journey, being in the army or is ship-wrecked. CR # (1466):- It is permissible for the high authority to carry on the search through a proxy even if such person is the wife herself. The proxy must at least be trustworthy and, regardless, the husband is a free person or a slave and vice verse it applies to the wife also. Apparently, the searching rule is only applicable to permanent marriage not the temporary one.

CR # (1467):- The divorce by the guardian or high authority is a revokable one and during the waiting period the wife is entitled to receive expenses and if the husband arrives during waiting period it is lawful for him to revoke the divorce and resume marital relations and if one of them dies during the waiting period the other party inherits the deceased and if one party dies after the waiting period is over, there is no inheritance between them. CR # (1468):- Some of the great scholars have said that in the case of an absent husband known to be alive and whose wife is not able to wait,it is permissible for the high authority to divorce her. The same rule applies to one imprisoned who can not be released and all those whose wives do not want to wait with this condition. Such a view is far from reality above this is what he has added that going through the 4 years and the rest of the procedure would cause one to fall in sins, in such case, it is permissible to expedite the divorce without completing the procedure. According to such view it is permissible to expedite divorce without the consent of husband if it is known that her remaining as wife causes her to fall in sins and thus is this view as you may note.

CR # (1469):- As mentioned before if the husband refuses to provide the expenses of the wife when she is entitled to receive, she presents her case to the high authority in shari’a who orders him to provide her expenses or divorce her and if he refuses both, the high authority divorces her and, apparently, the divorce, in this case, is irrevocable and it is not lawful for him

to revoke it and resume marital relations during her waiting period and her waiting period is like the waiting period after divorce.

—. acS ae rete

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LAWS

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CONTRACTS

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CR # (1470):- The waiting period of a woman with whom sex is performed by mistake is like the waiting period of a woman after divorce, if she is pregnant then it is the delivery of the child and if she is not pregnant and regularly experiences menses it is the passing of three menses-free cycles, otherwise, by the passing of the months, the same rule applies to a woman whose marriage is revoked after sex because of defect or default etc., or because of apostasy or breast-feeding etc. If the husband apostatizes and whose one parent is a Muslim at the time of his birth the waiting period is like that of a widowed woman but if the revocation is before sex there is no waiting period for it. CR # (1471):- There is no waiting period for a woman who has committed fornication and it is lawful for her husband to have sex with her. She can marry the man who has fornicated as well as others but according to a necessary precaution the fornicator must not marry her before she experiences one cycle of menses. CR # (1472):- It is not lawfui for the husband of the woman with whom sex is done by mistake to do sex with her as long as she is still in her waiting period and other forms of his having pleasures with her is objectionable, apparently, it is not lawful to marry her during the waiting period if she is single.

CR # (1473):- The waiting period after divorce begins as soon as divorce is formally formed, regardless, the husband is present or absent and the beginning of the waiting period of a woman whose husband has died is from when death takes place and in the case of an absent husband and those in likewise conditions like the one imprisoned is from the time of receiving the news of death, in fact, it is not far from reality that the same rule may apply to the case when the husband is at home but the news of his death reaches her only after a certain time . It is objectionable to consider this rule applicable to the case of a minor or an insane wife. Whether or not for proving one’s reaching maturity it is necessary for the information and report to have the quality of having the strength of a legal authority in terms of its logically being true there are two views about it according to the more clear reason the existence of such condition is necessary. The beginning of the waiting period for a woman whose marriage is revoked commences from the time of revocation likewise, the waiting period for sex by mistake is from such time not from the time it is discovered that it is mistake, according to a more clear reason.

CR # (1474):- The woman who is divorced in an irrevocable divorce is like a stranger she is not entitled to receive anything from the husband for her expenses and it is not necessary for her to obey him and it is not unlawful for her to-go out of her house without his permission. The woman in waiting

Rt ob

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period of a revokable divorce is like a wife as long as she is in her waiting period. The husband can enter her chamber without formal permission. It is permissible even preferable to show him her beautification. It is necessary for Aa pay her expenses, and it is necessary for her to obey him, it is unlawful or her.

CR # (1471):- There is no waiting period for a woman who has committed fornication and it is lawful for her husband to have sex with her. She can marry the man who has fornicated as well as others but according to a necessary precaution the fornicator must not marry her before she experiences one cycle of menses. CR # (1472):- It is not lawful for the husband of the woman with whom sex is done by mistake to do sex with her as long as she is still in her waiting period and other forms of his having pleasures with her is objectionable, apparently, it is not lawful to marry her during the waiting period if she is single. CR # (1473):- The waiting period after divorce begins as soon as divorce is formally formed,

regardless,

the husband

is present

or absent

and the

beginning of the waiting period of a woman whose husband has died is from when death takes place and in the case of an absent husband and those in likewise conditions like the one imprisoned is from the time of receiving the news of death, in fact, it is not far from reality that the same rule may apply to the case when the husband is at home but the news of his death reaches her only after a certain time . It is objectionable to consider this rule applicable to the case of a minor or an insane wife. Whether or not for proving one’s reaching maturity it is necessary for the information and report to have the quality of having the strength of a legal authority in terms of its logically being true there are two views about it according to the more clear reason the existence of such condition is necessary. The beginning of the waiting period for a woman whose marriage is revoked commences from the time of revocation likewise, the waiting period for sex by mistake is from such time not from the time it is discovered that it is mistake, according to a more clear reason.

CR # (1474):- The woman who is divorced in an irrevocable divorce is like a stranger she is not entitled to receive anything from the husband for her expenses and it is not necessary for her to obey him and it is not unlawful for her to go out of her house without his permission. The woman in waiting period of a revokable divorce is like a wife as long as she is in her waiting period. The husband can enter her chamber without formal permission. It is permissible even preferable to show him her beautification. It is necessary for him to pay her expenses, and it is necessary for her to obey him, it is unlawful for her to go out. of his house without his permission as mentioned before.

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They inherit each other if one of them dies during the waiting period and it is not lawful for him to make her leave the house in which she lived during divorce for another house, unless she commits open indecency like her being of an abusive tongue or her letting the strangers in and out often. If she is forced to leave the house without the permission of the husband, precautionary, it should take place after midnight and come back before dawn; if the emergency may require it. CR # (1475):- If one divorces his wife after sex and revokes the divorce then divorces her before sex it is necessary to observe waiting period from the time of second divorce and it also is said that there is no waiting period because it is before sex but this view is weak. If she is divorced in the manner of irrevocable divorce after sex and then is married and divorced before sex,

in such case, about the applicability of the rules of divorce before sex or inapplicability of such rule there are two views: according to the stronger one such rules are not applicable but it is not necessary for her to re-start the waiting period, in fact, she only completes the waiting period from the first divorce. The same rule applies to a wife of a temporary marriage when sex is done and then the time is waived and is married again and then the time is waived before sex. CR # (1476):-If she is divorced and her menses start as such that there is no menses-free time between divorce and menses, that menses-free period is not counted as one of the three menses-free cycles. Later on and as her forth cycle of menses starts her waiting period ends but if there is some menses free time between divorce and the commencement of menses that little time is counted as one of the three menses free periods and the waiting period ends with commencement of the third cycles of menses.

CR # (1477):-If a woman experiences menses only once in three months and is divorced at the start of menses free period and then three months pass without any menses her waiting period is over and such waiting period is counted according to the number of months not the mensesfree cycles. If she experiences menses only once in three months and three menses free months do not come to pass at a time, such women’s waiting period is based on menses-free intervals or cycles not on the basis of months. If her condition is not constant as regards the three menses free months or three menses-free cycles like as if it is seasonal and she experiences menses once in three months in as certain season and in the next season no menses at all within three months her waiting period is completed on the basis of her experiencing of any condition that comes first three months or three menses-free cycles whichever comes first. If her experiencing of menses is regular and she is divorced and she experiences menses only once and then no menses at all without knowing the reason; whether it is due to pregnancy

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or some other reason she waits up to nine months from the time of divorce and if no child delivery takes place she starts her waiting period for three months therefrom and at the end of the three months her waiting period is over. CR # (1478):-If a divorced woman experiences menses only once and then becomes a woman over the age of experiencing menses she completes the waiting period by waiting two more months.

CR # (1479):-In the case of sex by mistake waiting period is required only when the man does not know the reality, regardless, the woman knows it or not, if the man knows but not the woman, apparently, he does not have to observe any waiting period in her case. CR # (1480):-If one divorces his wife by the irrevocable manner and then does sex with her by mistake; can, in this case, the waiting period for both reasons go on at the same time or she is required to observe separate waiting periods for each cause and also, regardless, the waiting periods are due to reasons of the same kind or of different kinds like the divorce of a pregnant woman with whom sex is performed or an non-pregnant is divorced and then sex is done to her for which she becomes pregnant according to the well known views they can go on at the same time and, in fact, it is not far from

reality, that it may also apply. If a stranger does sex to her by mistake and then her husband divorces her or vice verse, but precaution should not be ignored in the form of observing two waiting periods, and the same rule applies, if one does sex to her by mistake and so does another man. There is no objection in two waiting periods going on at the same time if one man does sex by mistake one time after the other.

CR # (1481):-If one divorces his wife with whom no sex is performed but she is pregnant because of discharging sperm outside her private organ she observes a waiting period like that of a pregnant woman with which he is entitled to revoke the divorce and resume marital relations.

CHAPTER THREE KHUL’ MUBARAT. |

AND

Khu? means divorce in exchange for something paid by the wife and Mubarat means a divorce because of both parties’ dislike of each other. According to a

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LAWS

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strong reason Khul’ and Mubarat are two different forms of divorce if two more times divorce are added to any one of these it becomes unlawful to him to marry her again before she is married to another man. CR # (1482):- Khul’ can take place by one’s saying, n ANTI TALIQ ’ALA KADHA," you are divorced in exchange for an ’X’ amount of money or, ’ FULANAH TALIQ ’ALA KADHA’. So and so is divorced in exchange for *X’ amount of money or money or his saying, "Khala’tuki ’alakadha’ or "ANTI MUKHTALA’A TUN ’ALA KADHA’, you are divorced for ’X’ amount of money, ? FULANAH MUKHTA LPA TUN ’ALAKADHA’ she is divorced for *X’ amount of money with ’a’ sound in both MUKHTALA’A’ but with 7? sound "MUKHRALI’A is objectionable even if it is not followed by ANTI TALIQ’ or ’HIYAYA TALIQ’ although, precautionary, it should be followed by such expression. This form of divorce does not take place by the parties TAQAYUL, which means both parties agreeing to annul the marriage contract.

CR # (1483):-In a divorce in the form of Khul‘ ransom is necessary it is necessary that such ransom can validly be owned, its quantity and quality be specifically known even in a general sense and that the woman pay it without compulsion, which may come from the husband or others. It is permissible for the ransom to be more than her dowry or less or equal to it. In Khul it also is necessary that dislike is from the side of the wife. If her dislike goes away Khul’ is not valid and the husband does not become the owner of the ransom. For precaution, for Khul’ in order to take place, the dislike should be to the degree that with it she may do something unlawful. CR # (1484):- In khul’ it also is necessary that the husband does not dislike the wife and that khul’ is pronounced in the presence of two just witness and that it is not tied up with the coming into existence of a condition that is uncertain to take place or certain to take place but sometime in future. If two just witness are not present the khul’ is void, and the same rule applies to setting up conditions as mentioned, however, if the condition is as such that the contract of Khul’ requires it like one’s saying, "I divorce you if you are my wife or if you dislike me," the Khul is valid. The Arabic word for it is n KHALA’ TUKI IN KUNTI ZAWSJATI or in KUNTI Karihan. CR # (1485):- For the divorcing husband he must be a mature man of sound reason, free of compulsion and aware of his intention; for the wife such conditions as maturity and being of sound reason is not necessary according to a strong reason her Khul is valid and her guardian undertakes payment.

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CR # (1486):- The wife during Khul’ must be clean and free of menses anc childbirth blood discharge and that in the menses-free condition sex must no have taken place, otherwise, Khul’ is not valid. The above conditions are required if sex after marriage is performed, the wife is not a minor or above the age of experiencing menses and is free of pregnancy and that the husbanc¢ is not absent, but if sex is not done, she is a minor, above the age o experiencing menses or is pregnant or the husband is absent, the Khul’ i: valid even if she is experiencing menses or childbirth blood discharge or it is during a menses-free period in which sex is done. The absent husband who is able to know about the conditions of the wife is like a husband at home and the husband who is not able to know about the wife is like an absent husbanc¢ as mentioned in the rules of divorce.

CR # (1487):- It is permissible for the wife to ask for refund of the ransom as a whole or partially and change her mind as long as she is still in her waiting period and if she did the husband can resume marital relations with her, anc if the husband would not know about her asking for refund of ransom until the waiting period is over his decision of resuming marital relations will not be effective; the same rule applies if he learns about her decision within hei waiting period but it is not possible for him to resume marital relations like when the divorce in itself is irrevocable like being the third divorce or that the husband may have married her sister or has married a fourth wife before her asking for refund of the ransom etc., anything that would prevent one from resuming marital relations during her waiting period. CR # (1488):- There is no inheritance between the husband and the wife divorced by means of Khul’, if one party dies during the waiting period unless she has demanded for refund of the ransom and then one of them dies during the waiting period.

CR # (1489):- If the ransom is an item which cannot be possessed by @ Muslim like wine or a pig the Khul’ is not valid.

CR # (1490):- If the ransom is thought of to be vinegar but, in fact, it then i discovered

to be- wine the ransom

is not valid, in fact, the Khul’ alse

according to a more clear reason is void. If the ransom is said to be one thousand without any mention of the kind of substance, the deal is void.

CR # (1491):- As mentioned before that if she pays the ransom so that she is divorced and she dislikes him and he says, n Anti Taliq Ala Kadha, you aré divorced for such and such amount of property it is valid even if the wore ’Khul’ is not mentioned. If she does not dislike him ’Khul’ is not valid whether or not her divorce is valid is objectionable and disputed; to a viev

=

ii

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LAWS

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CONTRACTS

653

closer to reality it is void, except when the ransom is possessed in some deal other than Khul’ in which case her divorce is a condition in the deal like a financial settlement requiring him to divorce her. Such deal is valid and property paid is possessed by the recipient and he has to divorce her but the divorce, in such case, is revokable even if there is a condition requiring him not to revoke the divorce. It is not lawful for him to revoke, but if he does

revoke the divorce it is valid and the wife is entitled to annul the settlement for the missing condition. CR # (1492):- Apparently, the Khul for which ransom is paid by some volunteer is not valid, but it is very possible to consider it a valid payment and the divorce is revokable or irrevocable as the case may be. The same rule applies if she pays someone else’s property for ransom by his permission, but if this party makes it her property and then she pays as ransom, the Khul’ is valid.

CR # (1494):- For precaution the husband should immediately express and pronounce the terms of Khul’ as the decision of paying ransom is expressed by the wife like if she says, "Divorce me for ’X’ amount of money," it is necessary for him say, "Anti Taliq (you are divorced)for ’X’ amount of money. CR # (1495):- The payment of ransom and the pronouncement of Khul can be finalized by the parties themselves or by their representatives or a principal and a proxy. If the principals finalize the deal, for precaution, the wife starts saying, "I have paid you the ’X’ amount of money, and the husband says, "Fa Anti Talig,” you are divorced, a start from the husband and following by the wife is objectionable. If both are agents, the agent of wife says, "I have paid you ’X’ amount of money so that you divorce my principal, and the husband’s proxy says," so and so wife of my principal is Mukhtali ’A for ’x’ amount of money, "Fa Hiya Taliq" she is divorced." A start by the agent of the husband followed by statement of wife’s proxy is objectionable as mentioned. CR # (1496):- The dislike on which validity of this form of divorce is based is of a general nature as being due to his bad physical appearance or moral attitudes or accidental reasons like some of his deeds against her taste without. being unjust or usurpation of her obligatory rights, like time allocation or expenses. If dislike is for such matters, to a more clear reason ransom is not valid and divorce is not in the form of Khul’i.

CR # (1497):- Mubarat is also like Khul’ with one difference that the dislike is from both sides in this case and secondly that the term ’Talaq’ must be

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mentioned, thus only saying, n Ba ra’tu Zawjati n for *X’ amount of money without saying, n Fa Anti or Hiyah Talaq n is not enough until it is followed by saying, n you, or she is divorced." Also it is enough to pronounce only the term Taliq and it is not lawful for the ransom to be more than the amount of dowry. CR # (1498):- The divorce in the form of Mubarat is irrevocable and revocation is not permissible as long as the wife does not revoke her decision of paying ransom before the end of waiting period. If she did revoke her decision before the end of the waiting period, it is permissible for her to resume marital relations as mentioned in Khul’.

THE BOOK OF DIVORCE FORM OF ZIHAR

IN

THE

Zihar means one’s addressing a specified woman like one’s wife etc., and saying, " You to me are like the back of my mother." CR # (1499):- Zihar is not lawful and it is said that it is forgiven but such view is not established. CR # (1500):- In a statement of Zihar considering things like hands, or feet etc., similar to back ( of one’s mother ) is objectionable, according to Ihtiyat they are of the same effect; the effect of such statement about mother applies to all people of blood relations like aunts from both mother and father’s sides etc., this rule does not apply to the relatives because of breast-feeding and marital relations. CR # (1501):- If the wife says to the husband," you are to me like the back of my father,” the effect of Zihar will not be established.

CR # (1502):- For the effectiveness of Zihar it is necessary that two just people hear the statement of the party pronouncing Zihar, and that such person must be mature, of sound reason, free of compulsion, with his intention, free of anger and that Zihar must take place in a menses free period in which sex has not been done if the husband is available at home and woman of her like experiences menses.

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CR # (1503):- Zihar is effective in the case of a permanent wife as well as a temporary one and also a slave-girl.

A conditional Zihar is effective even if such condition is a time (certain period of time) according to a strong reason a Zihar does not become effective on the basis of swearing for reasons of stopping her from something, like saying, " If I talked to you, you will be like the back of my mother to me," or for reasons of exhortation for a deed like saying, If you stopped praying you will be like the back of my mother to me".

CR # (1504):- Zihar does not become effective according to Ihtiyat in the case of a wife with whom no sex is done.

CR # (1505):- Validity of Zihar being tied with a condition for a month or year is objectionable. CR # (1506):- Sex after Zihar is not lawful if one decides to do so, expiation becomes due on him first, then he performs sex, if he divorces and revokes in

waiting period she will not become lawful for him until he pays the expiation; when she completes the waiting period or the divorce is irrevocable and marries her in the waiting period or one of them dies or apostatizes or is such that revoking the divorce and resuming marital relations is not possible, such as when apostatizing is before sex or after it but if the apostatizing person is the husband who has an apostate (of Fitrah); at the time of conception one parent is a Muslim, there is no expiation due. CR # (1507):- If a person does sex before pronouncing Zihar and before paying expiation willingly he must pay double expiation, (a) one for sex and (b) for intending to do it again, the number of expiation is equal to the number of sex as well as to the number of Zihars, provided, each time it is pronounced at a different place, but if the place is one its effectiveness is objectionable.

If one is not able to pay expiation asking forgiveness is not enough, for precaution.

CR # (1508):- If the wife takes her Zihar pronouncing husband to the high authority in Shari’a he gives him time for three months from the time the case is brought to the authority and thereafter presses him hard to either pay the expiation or to divorce.

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OF SWEARING NOT SEX WITH ONE’S WIFE

CR # (1510):- EILA means one’s swearing not to have sex with one’s wife. Such swearing is only effective by the name of ALLAH TA’ALA and no other names and it must be for the reason of harming (the wife) if it is for some benefit or for the sake of the child the Eila will not become effective, it

will become an oath and swearing and the rules of swearing will apply to it. CR # (1511):- It is necessary that Eila is formed by a perfectly mature, free of compulsion and aware of his decision man, even if he is a slave, a castrated, or in fact an impotent but with some objection and the objection is stronger when the person’s penis is not able to enter the female organ.

CR # (1512):- It is necessary for the validity of Eila that the wife’s marriage is permanent with whom sex is performed that it ( Eila ) must be without mention of time or for more than four months. CR # (1513):- If the wife presents her case to the high authority in sharia he gives the husband four months time from the time of hearing if he revokes his oath and pays the expiation after doing sex, otherwise, he will force him to divorce or to perform sex and pay expiation and pressure him by reducing his food and drink until he accepts one of the alternatives and if he refuses both the high authority divorces her and if he divorces her it will be revokable divorce or irrevocable as the case may be.

CR # (1514):- If one swears not to have sex for a certain time, and remains defensive, and does not do any of the two choices mentioned about it until the time is over, there will be no expiation on him but there will be expiation on him if he does sex before the passing of time.

CR # (1515):- If he claims to have had sex, his words will be accepted on oath. CR # (1516):- An able person’s decision to have sex is to actually have it, but one who is not able to have it for some reason his having it done is to decide to do it upon regaining such ability.

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CR # (1517) The expiation is not repeated upon the repetition of swearing of not having sex is the same, if the time of first swearing has not expired at the time of second swearing.

CHAPTER (LU’AN)

ON

CONDEMNATION

CR # (1518):- Reason for cursing is accusing the wife of fornicating on the eye witness basis but no testimony.

It also is established by refusing to accept the child, who is born in his home and possibly. CR # (1519):- For the effectiveness of cursing it is necessary that both husband and wife are mature, the woman is free from deafness and dumbness and the marriage must be permanent, already consummated and that she is not known as a prostitute. It is formed by man saying four times, " I take Allah as witness that what I say is true. I am of the truthful people about what I said about this woman, and about refusing to accept her child as my child" and then says," May the curse of Allah be upon me if I be of the Lying ones." Then the woman says four times, " I take Allah as witness that he is of the Lying ones.” Then says," May the curse of Allah be upon me if he be of the truthful ones in accusing me of fornication and his rejecting the child as being his child". Thus, she becomes unlawful for him forever in marriage. The statements of testimony about God must be pronounced in Arabic and in a standing position and that the man makes such statements first and specify the woman and say them in Arabic if possible. If Arabic is not possible, other languages could also be used. First the testimony part must be said then the cursing part in the case of man, it is preferable that the high authority at such time sits with his back to Qibla (the direction of Kaba) The man must stand to the right of the Judge and the woman on his left side, the people hearing it must be present and that the parties must be given enough advice before the process begins.

CR # (1520):- If the cursing man after cursing states that he has lied, he will not be punished for accusation, but the unlawfulness remains effective. If during the process of cursing he states that he has lied, he will be punished but cursing will not have any effect.

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CR # (1521):- If after cursing the man professes about the child to be his, the child inherits him but he will not inherit the child and nor the relatives of the father would inherit the child. If the woman after cursing process professes four times the fornication, whether or not she is punished is doubtful, according to a more clear reason she will not be punished. The Book Of Oaths and Vows. It Consists of Several chapters.

CHAPTER

ON

OATH

CR # (1543):- An oath and swearing by Allah is formed by one of His special names or something that indicates such names and whenever such words are pronounced it would direct one’s mind to Allah and even those of His special names that do not direct the mind to Him due to precaution. It is formed by saying, " Wallahi La Afalanna, I swear by Allah, I will certainly do it, or Billahi or Birabbil Ka’ba or Tallahi, or Aymullahi, or La’umri Allah or Ugsimu Billah, or Ahlufu Bi Rabbil Mushaf etc. A swearing of saying," I swear by the right of Allah is not effective unless one intends thereby swearing by Allah. Swearing is not effective, if it is in form of one’s disassociating from Allah or one of his prophets or the Imams(a.s). Such swearing is not lawful, due to precaution.

CR # (1544):- Swearing is only effective if a person is mature, aware of his intention and free of compulsion and swearing of a non-Muslim is also effective. Swearing is only effective for obligatory preferable or allowable acts with some priority or for staying away from unlawful detestable or permissible acts of some priority. If doing or not doing according to swearing both religiously or worldly are equal according to a more clear reason it is necessary to act according to the requirements of swearing. CR # (1545):- Another person’s acts can not be made the subject of swearing which is also called urgent appeal like one’s saying," please by God do it," also using past tense does not make it effective or some impossible matters, in all such cases the swearing will have no effect.

CR # (1546):- If one swears for some thing within his ability and than he becomes unable to do and it continues to remain until the time of swearing’s validity expires or it remains forever if there is not time for it, swearing is

dissolved.

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CR # (1547):- If one swears against the truth but due to some special advantage like diverting oppression and injustice directed towards his property or properties of Mu’min even if he could have expressed in dissimulating manner, in fact, swearing is necessary if it saves one from getting involved in unlawful matters or saving one’s self or the life of a Mu’min from destruction. CR # (1548):- If one swears about a matter and makes it dependent on the will of Allah like "God wills" it is considered dissolved but if he intends to have blessings thereby it will be effective. CR # (1549):- Swearing between father and son or wife and husband or slave and master is not effective, the father can dissolve the sons swearing, the husband and master can do the same to swearing of wife and slave’s swearing is not valid without the permission of father husband and master.

CR # (1550):- The Expiation becomes necessary when one does not do what because of swearing was obligatory to do, or does something which due to swearing was unlawful to do not because of a false swearing. Some texts indicate that swearing expiation is due when it is falsely formed against some one’s rights, it is not lawful to swear without the knowledge of the fact.

CHAPTER VOWS

TWO

(NADHAR)

CR # (1551):- Valid vows require that the person vowing must be mature, free of compulsion, aware of his decisions, permission of the master if one is a slave, and the need for husband’s permission in the case of the wife in case where the vow is not against his rights, is objectionable, it is not far from reality to consider husband’s permission not required for the vow of the wife specially when the vow is not related to her property, but if her vow is against his rights, there is no doubt that his permission is required for the validity of her vow even if such permission comes afterwards, provided, the vow is made

when she is the wife, in fact, even if the vow takes place before she becomes

his wife, according to a more clear reason. Apparently, the vow of a son is not valid if the father has prohibited him from what the son has vowed to do, and such vow is dissolved due to father’s prohibition.

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CR # (1552):- Vows are either to express thanks for a favor like saying, "ifI will have a son I will owe to Allah such and such," or for seeking security like saying,” if I recover from this illness, I will owe to Allah such and such," or to stop one self from committing some thing unlawful like saying, "If I did so and so, I will owe to Allah such and such" or if I did not do such and such, I

will owe to Allah such and such," or it is just a volunteering deed. The subject of a vow in all cases must be a deed of obeying Allah and within the ability of the person committing himself to the vow. CR # (1553):- Vows must be for Allah in order to be valid. If one says, "I owe to do such and such and does not say, I owe to Allah he is not obligated for any thing. If one says it in its translation, apparently, it is obligatory to fulfil such vow. CR # (1554):- If one makes a vow without specifying the subject or deed, he must give some thing in charity or pray two Rak-at prayer or fast a day or do some thing virtuous. If one vows to fast and says it in Arabic for a ’HIN’, which means a while, he, by saying this owes to fast six months and if he says, the Arabic word ’Zaman’ he owes to fast five months. If one says, "I will give in charity much property," according to a report HADITH’ he gives 80 Dirhams and this is what is practiced. CR # (1555):- If one loses the ability to pay his vows it will remain of no effect if his inability continues. If he regains his ability within the effective time of the vow it is necessary to fulfil its requirement. If the statement forming the vow is of general nature it will not require a particular time, but if it is limited with a certain time or place observing such limit is necessary. CR # (1556):- If one vows to fast one day and on that day one accidentally travels or becomes ill or experiences menses or gives birth or it becomes ’id ’ one does not fast that day and makes it up later on some other day.

CR # (1557):- If one vows to present his horse or some property to the house of Allah or a holy shrine, such present is used for the benefit of such places, if not possible it is sold and the proceeds are spent for such places. CR # (1558):- If someone has vowed to give some thing to the holy Prophet or a religious personality, the intention of the person vowing must be followed and in a doubtful condition, it is decided according to the face meaning of the statement of the vowing person, if he has vowed just to spend for the holy Prophet, the amount is spent for the visitors of his shrine, the poor or the maintenance of his holy shrine etc.

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If it is vowed to spend some thing for one of the holy shrines it is spent for its maintenance and its interests.

CHAPTER THREE ON COVENANTS CR # (1559):- Covenant is formed by saying," I promise Allah, I am obligated to Allah that if ’A’ takes place I will owe to do ’B’, which must be an act of worship or its doing would be better than not doing. Such covenant also is formed if the statement is of a general nature and unrestricted, such covenant is binding and the rules of the subject of vow apply to that of covenant also but this view is not free from objection. Vows and also covenants cannot be formed without expressing it in words, although it is a precaution for it not to be different from the way it is intended to be. CR # (1560):- If one promises Allah to give all of his belongings in charity and is afraid of the loss he evaluates his belongings and gives in charity in smaller amounts at different times until an amount equal to what was evaluated is given in charity.

THE BOOK (KAFFARAT)

OF

EXPIATIONS

CR # (1561):- Expiations are payable or are to be performed: (a) In orderly and successive manner. b) In either one of several items or; te Paying and or performing a number of specified forms of Expiations alternatively depending upon the nature of the offense for which expiation becomes due. (d) A combination of everything together. CR # (1562):- The Expiation for Zihar and killing someone by mistake is orderly and alternatively; in both cases it is necessary to set free a slave and if this cannot be done, one has to fast two successive months and if he cannot

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662

do this also he feeds sixty needy people, the same alternate rule applies to one who has invalidated one day of the making up of fasting of the month of Ramadhan after it is afternoon time of a day for which the expiation is to feed ten poor people and if he is not able to do it he fasts three days and for precaution, it should be three days successively. CR # (1563):- The Expiation for not fasting one day of the month of Ramadhan and not fulfilling a covenant is either one of the following: (a) Setting free a slave. (b) Fasting two successive months. (c) Feeding sixty poor people.

CR # (1564):- The Expiation for a vow of fasting the specified days is as follows according to a necessary Ihtiyat: (a) Setting free of a slave. (b) Feeding sixty poor people. (c) Fasts for two successive months. CR # (1565):- The Expiation for killing a believer purposely and unjustly is all the items collectively, i. e. setting free of a slave, fasting two successive months and feeding sixty poor people; the same rule applies to invalidating the fast during the month of Ramadhan by an unlawful act.

CR # (1566):- If several people become partners in killing a person each one is liable for a complete expiation for killing a person, and the same rule applies to killing by mistake.

CR # (1567):- If the law does not consider it necessary to expiate for killing of a person, like one fornicating with a married person, male’s committing an act of homosexuality, an apostate, if such people are killed by someone other than IMAM, there is no expiation if he is killed by the IMAM’S permission, but if it is done without the permission of IMAM, the case is not free from objection. CR # (1568):- It is said that the expiation for a swearing in the sense of disassociating oneself from Allah and then violating such swearing is like the expiation of Zihar and if he cannot fulfil this, the expiation is like that of swearing but there is no proof for it, and it is said also that the expiation for such swearing is feeding ten needy people and there is a reliable Hadith about it.

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CR # (1569):- The expiation for a women’s cutting-off and shearing her hair out of sorrow and grief (for the death of her relatives) is like that of breaking one’s oath. The ransom and expiation for a women’s pulling out her hair or scratching her face to bleed or a mans tearing his cloths for the death of his son or wife is like that of swearing, for precaution, and according to a view of some priority the latter kind of ransom and expiation is good for all of the

above offenses. CR # (1570):- If one marries a married woman or one in her waiting period of revokable divorce he must separate from her and for precaution, pay a ransom of five Sa’ of flour year according to a strong reason it is not obligatory. CR # (1571):- If one sleeps without performing the late isha prayer until no time is left for it he should start the day fasting according to a preferable precaution. CR # (1572):- If one vows to fast a day or days and then loses the ability to fast, according to a precautionary rule he should pay a ransom of a (Mood) handful of food or two ( one time dinner ) to a poor man so that he fasts for him.

CR # (1573):- If one cannot find a slave or finds one but does not have money to pay for, he then chooses fasting if the expiation is in an alternate manner. One owing expiations does not have to sell his clothes or his house etc., the sale of which would make it difficult for him and faces hardships.

CR # (1574):- The Expiation of Zihar due on a slave in the form of fasting is only one month which is half of the expiation due on a free person, according to the well known view the same is the expiation for killing a person by mistake but it is objectionable. CR # (1575):- If one needs to feed sixty people for expiation he must feed sixty people or give each one Mud of food items and according to a necessary Ihtiyat they must have enough to satisfy themselves. They must be sixty and not thirty fed twice. CR # (1577):- It is permissible to feed the minors by giving the food in their possession or give to their guardian who would spend for them but if it is direct feeding the permission of their guardian is not necessary and two of them must be counted as one.

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The Book of Expiations (Kaffarat)

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664

CR # (1578):- It also is permissible to directly feed some of them and give the food to some others, but it is not permissible to give or feed one person several times if it is for the expiation of one offense unless it is not possible to find the required number of poor. CR # (1579):- Clothing for each poor person must be by the normal way of clothing like two; a jacket and a pant. CR # (1580):- It is necessary to specify the expiation if there are more than one kind of offenses . It is necessary for the person expiating, to be an adult and a Muslim, also the recipient must be poor, for precaution, the recipient should be a believer, and it is not permissible to pay to one’s dependents and it is lawful to pay one’s relatives, perhaps it is better. CR # (1581):- In the expiation of an orderly alternative nature effective factor is the time of paying. If one was able to set free a slave but lost such ability and chose fasting he does not owe setting free a slave, and the loss of the ability according to the common understanding is enough reason for one to choose the second alternative of the orderly expiation with alternatives at a given time. If the second alternative is paid and then one regains the ability to pay the first in the order of the alternately payable expiations he does not have to pay again, even if one due to inability to set free a slave fasts a month and then regains his ability to free a slave, he just completes fasting.

CR # (1582):- In the case of the expiations of paying and/or performing a number of items together, if one is not able to set free a slave he must do or pay the rest and there is nothing on him for setting free a slave. CR # (1583):- In the case of the expiations where one can choose one out of several items it is necessary to complete the expiation with one item, not partly item (a) and partly (b) and (c) etc.

CR # (1584):- In the case of payable expiations it is permissible to delay as long as it is not considered neglecting the obligation but paying immediately is more precautionary. CR # (1585):- Of the preferable expiations and ransoms are the following reported in the Hadith of AL-IMAM As-Sadiq (A.S.): (a) The expiation for the works for a ruler is to help needy fellow believers. (b) The expiation for being in a gathering is to say when leaving it, "glory belongs to your Lord, the Lord Who is more Majestic and Exalted than what they (unbelievers attribute to Him); may Allah’s blessing be upon the messengers of Allah, it is Allah, Lord of the universes Who deserves all praise.

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(c) The ransom for laughing is to say, "Lord, do not abhor me." (d) The ransom for backbiting is to ask forgiveness for that person. (e) The expiation and ransom for omens is to trust (Allah). (f) The ransom for slapping one’s face ( for grief)is to ask forgiveness and repent. CR # (1586):- If one is not able to pay and/or perform the expiations for intentionally invalidating the fast in the month of Ramadhan, in which it is allowed to choose one out of several items, he may ask forgiveness and give in charity whatever is possible for him, for precaution, but if he regains the ability later it is necessary to pay and /or do the dual expiation for a necessary precaution. THE BOOK OF HUNTING AND SLAUGHTERING (SAYD & DHABAHAH ) It is not lawful to use for food animals without slaughtering them in accordance with methods of Sharia, called Tadhkiya such methods are hunting, slaughtering and slaughtering camels etc.

CHAPTER HUNTING

ONE

CR # (1587):- It is not lawful to use for food the animals hunted by other -animals

or birds like eagle, hawk, falcon, cheetah and tigers other than

hunting dogs. But if a dog hunts an animal which could normally be used as food and the dog kills the animal, stuns or wounds it according to Shari’a rules such animals can be used for food, regardless of the kind of dogs such as a greyhound etc. CR # (1588):- The animal hunted by a dog can only be used lawfully for food when the following conditions exist: 1. The dog must be trained for hunting and it can take place when the dog is trained enough to chase and catch the prey when the dog is told to do so. The dog must stop the chase after he is told to chase and catch the prey. Whether or not dog’s stopping the chase after he is told to catch the prey is required there are two views about it, according to the stronger view such condition is not necessary, although it is a precaution that the dog must not eat what he catches before the owner arrives, when normally he eats such

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food, however, if he accidentally eats when normally he does not eat it is not an offense.

2. The hunt must take place when the owner releases the dog to hunt, thus, if the dog is loose on his own and hunts an animal such animal cannot lawfully be used for food, the same rule applies if the dog is released for some other reasons like to chase away the enemy or a beast and the dog hunts an animal. If the dog is loose on his own chasing the animal and the owner tells him to hunt and the dog hunts it is Ihtiyat not to eat such hunt even if the owners telling to hunt would have made the dog to run faster to hunt. If the dog is loose on his own and the owner tells him to halt the chase and the dog obeys him then he tells the dog to chase and catch a prey and the dog obeys him the catch can in this case lawfully be used for food. If the dog is told to catch a specified deer but the dog catches another one the catch is good for food; the same rule applies if the dog catches another one along with the specified one because the condition affects the kind not the individuals.

3. The supervisor must be a Muslim; if the dog is ordered by a non-Muslim to catch, the catch is not good for food, regardless, the Muslim is an adult or a child, and regardless, the non-Muslim is of the followers of the

Bible or other kinds of non-Muslim or non-Muslim tax payer.

4, When releasing the dog to catch, the supervisor must pronounce the praise and name of Allah and according to strong reason it is enough to do so after the dog is released and before the catch takes place. If purposely, the name of Allah is not mentioned the catch is not good for food but if it is due

to forgetfulness, the catch is lawful for food, the same rule applies to hunting with arrows. CR # (1589):- In hunting or slaughtering it is enough to pronounce the name of Allah with one of His attributes expressing His glory and praise as Allahu Akbar, Allah is great beyond description, Al-Hamdu-lillah, praise be to Allah, Bismillah, in the name of Allah. Pronouncing just His holy name is not free from objection. 5. The death of the prey must be due to the dog’s wounding or stunning but if it is because of some other reason like being shocked, strangle or due to exhaustion in the chase etc., it can not be used for food.

CR # (1590):- If the dog is sent to catch and the dog reaches and one finds it dead after being approach by the dog, it is good for food. The same rule applies if the owner finds the prey after being caught by the dog but there is

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not enough time for a normal slaughtering and the prey dies, but if he finds the prey alive and there is enough time for a normal slaughtering and he leaves it until it dies, such prey cannot lawfully be used for food. If he finds the prey after being caught by the dog and is stunned and still is alive and not yet under full control like being hardly hurt but still on the run and if he chases the prey and approaches it if he finds it dead it is lawful for food. The same rule applies if he reaches it while still alive but there is not enough time for a normal slaughtering, but if there is enough time but he leaves it until it dies in this case the prey is not a lawful food. CR # (1591):- The minimum time needed for slaughter is a time which gives the animal a chance to at least move its eyes, legs or tail because of the effect of slaughtering, if one reaches the prey and a time as just mentioned is available such prey cannot lawfully be used for food without slaughtering. CR # (1592):- If one begins the preliminary works of slaughtering like sharpening the knife, removing the obstacles such as the hairs from the neck etc. and the animal dies before slaughtering it is used for food just like when there is not enough time for slaughtering. If he does not have the tools for slaughtering and does not slaughter until it dies it cannot lawfully be used for food according to a necessary Ihtiyat, if, in such case, one orders the dog to kill and he does so, the meat then can lawfully be used for food due to a strong reason.

CR # (1593):- Apparently, one does not have to hurry to reach the prey as soon as the dog is released and not even from the time the prey is caught as long as the prey is resisting, but does one have to hurry to reach the prey at a

time when it is fully controlled? There are two views; for more precaution, one must hurry up, if one thinks that it helps make slaughtering possible, otherwise, it is not necessary even if the reason for not reaching in time is the distance which does not allow one to reach the prey in time except after it is dead because of the injuries done to it by the dog, in such case, not to hurry is not objectionable.

CR # (1594):- The prey’s dog bite is unclean and it must be washed and it is not lawful to use it for food before washing. CR # (1595):- In dog’s hunting it is not necessary that there must only be one supervisor. Thus, even if several people tell a dog to chase and catch a prey while other conditions needed exist in all or with one of them whose telling the dog to chase and catch the prey is enough to motivate the dog if only he is the instigator of the dog. The prey can lawfully be used for good. In the same way it is not necessary that there must be only one dog, thus, if one person

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sends several dogs and they all together hunt one animal it can lawfully be used for food. In a multiple supervisors and hunters the needed conditions must exist. If a Muslim and a non-Muslim send two dogs who hunt an animal it cannot be used for food the same rule applies if two Muslims send the dogs and only one pronounces the name of Allah, or only one dog has the needed training, if the kill is caused by both together, but if only one is considered to be the cause of the kill which has the required training but not the other, the =Ais lawful for food the same rule applies if the opposite of the case takes place.

CR # (1596):- When it is doubtful whether or not the death of the prey was due to the dog’s attack or some other reason the meat cannot lawfully be used for food, if there are some indications good enough to prove for common practice purposes that the death was caused by the dog’s attacks, it is lawful food, even if such indications may not be giving certainty. CR # (1597):- If a prey is killed by the solid object other than what is called a cutting weapon like a sword, a knife, or a dagger etc., it can not lawfully be used for food, or it must be a sharp weapon like spears, or arrows or hand sticks even if there is no sharp piece of iron on one end but are sharp by itself, it is necessary that such objects cause a cutting in the prey if the object does not have any iron on it to make the prey lawful for food. On the contrary, in the case of an object with iron causing a cut is not necessary; only its hitting the prey is enough.

CR # (1598):- Apparently, metals other than iron serve the same purpose as the iron does; metals like gold, silver etc, if prey is killed by the weapons made out of such metals, it can lawfully be used for food. CR # (1599):- The prey killed by stones and sling-shots or nets and other such hunting devices which do not have cutting parts or pointed sharpness, is not good for food.

CR # (1600):- The sharp objects such as needles and spikes etc. which are not called weapons according to common sense even though they may be sharp, to consider such objects good for hunting is objectionable, but, whatever is a weapon even if it is outdated, is free from objection in hunting.

CR # (1601):- It is very possible to consider good for hunting the rifles, bullets, and guns used these days, provided, they have pointed round ends, regardless of their materials as being made out of iron or lead etc. If the size is very small like grains, its effectiveness for hunting to shari’a is objectionable. In hunting with solid objects it is necessary that the hunter is 2

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Muslim, the name of Allah is mentioned at the time of firing or shooting, the kill must be caused by the shot; that the shot is for hunting, thus, if one

shoots or fires into the air for no reason or to the enemy or a wolf and it hits a deer, the kill is not lawful for food. The same rule applies if a shot slips from one’s hands and hits and kills a deer, if one shoots a particular deer to hunt but it hits another it is lawful for food. For the lawfulness of a kill for food it also is necessary that the hunting object is the only cause for the kill, thus, if an animal falls from a high place or in the water after being hit by the hunter’s shot and then killed because of both reasons it is not good for food, the same rule applies if the reason for the kill is a Muslim and a non-Muslim, a person who has mentioned the name of Allah and who has not done so and who had wanted to and one who had no such intention and the kill is by both. In having doubts as whether or not the reason for the kill is the one that makes it lawful for food, it is considered not good for food. CR # (1602):- If an arrow is shot and the winds help it to hit the prey and kill, such prey is lawful for food, even if without the winds it would not hit the prey, the same rule applies if the arrow, hits the ground and bounces to the prey and hits it and kills. CR # (1603):- In hunting with tools it is necessary to complete the hunting with one tool or only one person, thus, if one person shoots the prey with an arrow and another hits the prey with a spear and it is killed due to both the arrow and spear’s effect it is lawful for food, provided, each hunter has all the other requirements, even if one party sends his dog to catch the prey and the dog makes deep bite at the prey and another party shoots the same prey with an arrow and the prey is killed because of the effects of both the dog bite and the arrow it is still good and lawful for food. CR # (1604):- If one hunts with a usurped hunting tool, the prey is good for food although he has committed a sin because of using such tools and must pay the rent according to its current market value, if such tool is rented for hunting, and the prey is the property of the hunter not the owner of tools. CR # (1605):- The rules of hunting are applicable only to the wild animals and birds that can be subdued by means of hunting like deer, wild cows and goats etc., not to pets or the farm animals or chickens. If pets become wild or wild ones become pets the rules of hunting applies to what is at the time of hunting. What is currently a pet can not be dealt with by the rules of hunting even though it may have been a wild animal or bird in the past. The young of the wild animals and birds before they are strong enough to run away are considered like pets,thus if one shoots at a bird and the chick is also killed with it, the bird is good for food but not the chick.

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CR # (1606):- If bulls or camels go out of control and the animal that attacks people, can be considered,in matters of hunting, like wild animals to use as good food; the same rule applies to the animals that cannot be slaughtered normally like if they fall into a well etc., in such cases slaughtering is done by cutting any part of the body even if it is not the neck area, the meat is good for food. Extending this to the use of hunting dog, in such a case, is objectionable, thus, according to a precautionary rule this rule should only be applied to cutting by means of tools. CR # (1607):- In hunting it does not matter whether the prey is edible or not, thus, if inedible beasts are properly hunted, it is lawful to use their skins. If hunting is done by means of solid tools, but there is no objection in their body being clean if it is done by means of dogs.

CR # (1608):- If the prey in hunting with tools is cut in two pieces if the tools is of such tools with which hunting is lawful like swords or dogs, if both pieces are dead both pieces are good for food, provided, other conditions required exist and the same rule applies if they are alive but there is not enough time to perform slaughtering. If there is enough time to perform slaughtering the piece without head is not good for food, and the piece with head after proper slaughtering is good food, and if it dies before slaughtering it cannot be used for food. If the hunting tool is not proper like ropes and nets the part without head is not good for food and the one with the head is edible after properly slaughtering and if it is not slaughtered it is not edible. CR # (1609):- The originally wild animal becomes the property of the person who catches it by its legs or tail etc., or catches it by means of net etc., or by shooting it or subdues such animal, the person becomes the owner and the owner of its benefits, and it is not lawful for others to use it without the permission of the owner if such animal runs away form the net or gets well from the injuries and goes out of control again and then is caught by another person this person does not become the owner and it is necessary for him to give it back to the owner. If the net is set but not for hunting he does not become the owner of the animals caught in the net, the same rule applies if a shot is fired but not for hunting, others can have such animal shot dead. If one catches a wild animal with no intention of owning it, his ownership of the same is objectionable according to a reason closer to reality, he is the owner.

CR # (1610):- If an animal gets stuck in the mud in one’s land or a fish jumps in one’s boat he does not become the owner of the animal or the fish, but if he may have prepared such things for hunting like letting the water to muddy one’s land or keeps a boat so that fish jump in it or spreads grains for the birds to be trapped or by such means that are not usually used for hunting, in

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such cases, one’s ownership of the prey is objectionable, although according to a more clear reason one’s ownership gets established in such a way.

CR # (1611):- If one chases an animal and it stops running because of exhaustion he does not become the owner until he catches it; if some one else

catches it before he does, the second person becomes the owner. CR # (1612):- If an animal falls in a net which is set up for hunting but the animal turns himself loose, he does not become the owner.

CR # (1613):- If the prey is shot but it runs or flies away and remains unsubdued the shooting person does not become the owner. CR # (1614):- If two people shoot at a prey at the same time if both have equally caused the kill it belongs to both, if one has brought it to stop and the other has wounded the prey it belongs to the former and the latter will not have any liability for causing wounds in the prey. But if the shots are not fired at the same time it becomes the property of the one whose shot has subdued the prey, regardless, such shot is the first one or the last.

CR # (1615):- If one shoots at a prey thinking it to be an inedible animal like a dog or a pig, while in fact, it is an edible animal and killed by the shot, it is not good for food. CR # (1616):- If one shoots a prey and it is wounded but still is not subdued and enters a house and the owner of the house catches it he becomes the owner because of catching not because of the prey’s entering his house.

CR # (1617):- If one arranges a resting place around his house for the pigeons and they do rest therein, the owner of the house does not become their owner because of this and others can catch and own them.

CR # (1618):- If a hunter lets his prey go if it is not because of his decision to let it go for good it remains his property, others cannot own it by hunting, but if it is to let it go for good it becomes a wild animal again; any one can hunt and own it and the person who has released it does not have any right to claim it. The same is the rule about other property abandoned by the owner whether it is an animal or same other property, in fact, according to a more clear reason, it does not matter whether abandoning is due to his ability to keep it under his control due to some reason in the property of the owner or it is not due to his inability but it is for some other reason.

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CR # (1619):- The hunter becomes the owner of the prey which is originally wild, as mentioned, but cannot own it if it was owned previously by someone else, if one has doubt whether or not it was owned before he assumes that it was not owned before, unless there is an indication otherwise, such as

ownership marks etc. If it is known that it belongs to someone it is necessary to give it back to him if nothing is known about it, it is treated as a found property, if it is not like a lost property it is treated like a property of some own owner, regardless, it is a wild or some other animal.

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OF

FISH

&

CR # (1620):- Cleansing of fish for food is done by catching it alive out of water by hand or net or catch it out of water if the fish has come out of water by itself and it the fish is not caught until it dies it becomes inedible. If a fish is cut in pieces and one catches a piece with the head and it is alive and it can be called fish, it is considered properly cleansed and it is good for food but if the piece cannot be called fish it is objectionable to consider the pieces edible and cleansed according to a more clear reason it is not edible. CR # (1621):- In cleansing fish for food one’s being a Muslim is not necessary nor it is necessary to pronounce the name of Allah when catching. If a non-Muslim catches it from water or out of water and then it dies it is considered as cleansed, regardless, the non-Muslim is a follower of the Bible or other kind of non-Muslim.

CR # (1622):- If fish is found in the hands of a non-Muslim and one does not know whether he has caught it alive or not, one assumes that it is not done so and if he says he has done it so it is not accepted. If fish is in the hands of a Muslim who deals with and it indicates that it is good for food or he says it is good for food, it is accepted. CR # (1623):- If a fish jumps into a boat neither the operator nor the owner owns it before anyone actually catches it, whoever, catches it becomes the owner, even if he is not the operator or boat-owner. CR # (1624):- If the boat-owner intends fishing thereby and has kept the boat as such that fish may come or jump therein, it is considered fishing and

this is good enough to make the fish good for food but to consider him the

owner before he catches them with his hand is objectionable, although as mentioned before, according to a more clear reason he becomes the owner.

CR # (1625):- If a net is set for fishing and the fish in it is found dead some of them or all of them, apparently, they are good for food.

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CR # (1626):- If one sets a net or some other device for fishing and fish comes in it and water subsides after which the fish dies, they are good for food, if they die before water dries up or subsides, there are two views about it, according to the stronger view they are good for food.

CR # (1627):- If one catches fish and takes it out of water alive and ties it with rope and lets it in the water and it dies therein, apparently, it is not good for food, if he takes it out and finds it dead and has doubts about whether it

died before or regardless, one fisherman needs its dying therein

after taking out of water it is considered good for food, knows the times of taking out and its dying or not, if the to let the fish already caught go in the water and is afraid of he must do so after they die even by hitting them hard etc.

CR # (1628):- If fish floats on the water because of some fishing device or getting hurt by other animals, if it is caught before it is dead it is good for food but if it dies before it is caught it is not edible.

CR # (1629):- If one throws fishing materials in the water but not for fishing and fish swallows it up and begins to float the person does not become the owner before he catches it, if someone else catches it he becomes the owner,

but if the material is thrown for fishing also, apparently, he does not become the owner, regardless, he wanted to fish a certain fish or any fish, however, if

he shoots fish or hits and it begins to float, it is not in this case far from reality to consider it his property.

CR # (1630):- In order for fish to be good for food it is not necessary for it to die on its own after being caught alive from the water even if it dies because of cutting etc., still it is good. In fact, according to a strong reason it is lawful to eat it alive. CR # (1631):- If a fish is taken alive and a piece is cut and the rest is thrown in water and then it dies, the piece out of water is good for food but not the rest, a fish is cut in water before being taken out and then it is taken out and it dies out of water, the separated piece is not good for food which was cut when in the water-and the rest is good for food.

CLEANSING

THE

LOCUST

CR # (1632):- Cleansing of locust also is done by catching it alive by hand or tools. If it dies before catching, it is not good for food. For such cleansing

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pronouncing the names of Allah is not necessary or to be a Muslim. Ifa non-Muslim catches them alive, it is good for food, however, if it is found in

his hands it is not considered good for food, even if he says it is good. oe- (1633):- The kind of locust looking things which do not fly is not good or food. CR # (1634):- If there is fire where locusts are and they die before they are caught alive, they are not good for food. If fire is set and locusts come from surroundings and die in the fire their being good for food is objectionable.

CHAPTER

ON

SLAUGHTRING

CR # (1635):- The person slaughtering must be a Muslim; what is slaughtered by a non-Muslim is not good for food even if such person is a follower of the Bible. It is not necessary that such a Muslim be a Shia; only if he could be considered a Muslim is enough. But if he is considered a non-Muslim it is not good like those abusing the IMAMS and those who rise against them and some of those who exceed the limits of their real position like those called ghali.

CR # (1636):- A Muslim boy or a child is all right to slaughter animals, provided, the child is capable to do the job, the same rule applies to a blind, castrated, a person who has not had ghusl after having sex, a lady experiencing menses or a sinner, It is not lawful to slaughter if he does not realize what is he doing like a mad person, and a drunk etc. However, apparently, it is lawful if a mad person slaughters, provided, he to some degree discerns and the other conditions required exist. CR # (1637):- It is not necessary for the person slaughtering to be independently free, it is even lawful if a person is forced to slaughter an animal and is forced unjustly. It also is not necessary that the person believes in the necessity of pronouncing the name of Allah even without such belief if the required pronouncement is made it is enough.

CR # (1638):- A Muslim born out of wedlock can do slaughtering, regardless, he is mature or not. It is not lawful to slaughter an animal with something other than a tool made out of iron even if it is made of other

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metals like lead, copper, gold,or silver. In a normal case the animal slaughtered with such metals is not edible. But if it is not possible to find iron it is lawful to slaughter with other metals even wood, stone or anything that can cut the proper veins and arteries. According to a more clear reason in an emergency it is not necessary to be afraid of losing the animal, although, according to a precautionary reason such fear should exist. It is not far from reality to consider permissible the slaughtering by a rack etc., which cuts the veins with difficulty although, according to precautionary reason, it only is permissible in emergency.

CR # (1639):- It is necessary to cut four parts at the neck of the animal namely: (a) The trachea. (b) The pharynx. (c) The two jugular veins. CR # (1640):- Only piercing the veins without cutting them is objectionable, similarly only cutting of the trachea is objectionable, according to a more clear reason cutting the trachea alone is not enough. CR # (1641):- According to a more clear reason cutting of all the said parts involve leaving of the thyroid to the head, if anything of it (thyroid) goes to the body, cutting of all four elements may not take place, as some people of . experience have reported.

CR # (1642):- It is necessary to have the intention of slaughtering, thus, if a knife falls from one’s hand and cuts the parts to be cut from the neck in slaughtering it is not good for food even if one pronounces the name of Allah when the knife hits the parts at the neck, the same rule applies, if the knife is moved around the neck for some other reason but it cuts the parts, or the person is drunk or fainting or mad unable to discern things normally. CR # (1643):It is necessary to cut the parts one after the other immediately doing so with intervals in between is objectionable even if the other parts are cut before the animal dies.

CR # (1644):- A large group of scholars is of the view that in order for an animal slaughtered to be good for food the animal must be able to live for some time like a day or many days and others do not consider such condition necessary, and the latter view is based on a stronger reason. However, it is necessary that the animal be alive in the sense of being opposite to dead, slaughtering a dead animal does not make it good for food, there is no objection to this, thus, if the neck is cut as such that the thyroid goes to the trunk and immediately, before the animal is dead, the parts are cut properly, it is good for food, the same rule applies if the animal is still alive or the

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animal is seriously injured but is slaughtered properly before it is dead, it is good for food. CR # (1645):- If at the time of slaughtering another person cuts the trunk of the animal, apparently, it is good for food, the same rule applies if such other things which kill the animal happen at about the time of slaughtering but to observe precaution is better. CR # (1646):- More than one person can also do the slaughtering work together or one after the other, but it is necessary that both people pronounce the name of Allah, according to a stronger reason, only one of such people’s pronouncing the name of Allah is not enough. CR # (1647):- If by mistake the throat is cut in the wrong way and after realizing the mistake one corrects it before the animal dies, it is good for food as mentioned before. CR # (1648):- If for some reason some of the parts to be cut for slaughtering are already cut but the animal is still alive while some other parts are safe, it is possible to slaughter it by cutting the remaining parts and piercing the parts already cut from the above or below the cut and it then becomes good for food, however, if all the parts are cut by a wild animal etc, the animal is not good for food.

CR # (1649):- If the animal is slaughtered and then it falls in water or fire or falls off from a high place, etc., a fall that kills the animal, it does not make the animal unlawful for food. This rule is different in hunting. It is necessary here to know that the animal has died because of slaughtering but such knowledge is not required in hunting.

CR # (1650):- The following conditions are required in slaughtering.

(a) Facing of the animal toward the Qiblah during slaughtering, the front parts and the neck must be facing the Qiblah, the holy Ka’ba, if this condition, knowingly and purposely, is missed, the animal is not lawful for food, if it is due to ignorance of the rule or forgetfulness or mistake it is not unlawful for food. In all such cases the same rule applies if one cannot find the Qiblah or cannot make the animal to face it and it is necessary to slaughter the animal like an animal running away or has fallen into the well etc.

CR # (1651):- It is not necessary for the person slaughtering to face the direction of Qiblah although it is a precaution to do so.

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CR # (1652):- If there is fear of dying of the animal when trying to make it face the Qiblah, apparently, in such case, its facing the Qiblah is not necessary.

CR # (1653):- It is lawful to lay the animal on the right or left side, like dead persons in the grave, when slaughtering or let stand up facing Qiblah. (b) The person at the time of slaughtering must pronounce the name of Allah and be well aware of his work. If this is purposely ignored, the animal becomes unlawful for food, but if it is done due to forgetfulness, it does not make the

animal unlawful for food, according to a precautionary reason the name of Allah should be pronounced whenever one remembers. If it is not done because of the ignorance of the rule, apparently, the animal becomes unlawful for food. CR # (1654):- According to a more clear reason, the name of Allah must be pronounced just for the slaughtering purpose, an accidental pronouncement or for some other reason is not enough. Apparently, it is necessary to pronounce it at the time of slaughtering, a time which common sense considers the time of slaughtering, not when the time of preparation for slaughtering like tying of the animal etc. CR # (1655):- Pronouncing of a dumb person in his own way by moving his tongue or pointing his fingers is enough.

CR # (1656):- Such pronouncement can consist of saying with respect, Allah-u-Akbar (God is great), AlHamdu-Lillah (Praise be to God), Bismillah (In the name of God). Just saying Allah is not free from objection. (c) Enough blood must come out; a normal quantity precautionary, if not for a strong reason, thus, if no blood, or flowing very slowly, or some drops only come out, it is not good for food, even if the animal may have been alive at the time of slaughtering, the kind of animal is also a factor. The blood may come out in drops in the case of an animal suffering from illness which could be considered normal but this does not make it unlawful for food.

(d) The slaughtering should be done by cutting the front part of the neck; by the back of it is Makruh, detestable, the knife should be placed at the neck to

cut, pushing it under detestable.

the parts and then cutting upwards is Makruh,

CR # (1657):- If one has doubts about the animal’s being alive or dead, he can consider it alive if there is some movement taking place when slaughtering is done even if it is just a little, like the movement of the eye,

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tail, ears or the legs etc. Such movement is not needed if one knows that the animal was alive at the time of slaughtering.

CR # (1658):- Itis Makruh, detestable, to cut the head purposely before the animal dies, but it does not matter if it is not done purposely, like its being due to unawareness or the sharpness of the knife etc. Also it is Makruh,

detestable,to cut the spinal cord purposely before the animal is dead. CR # (1659):- When slaughtering a bird, if purposely the head is cut altogether, apparently, it is permissible to use it for food, but, if not an emergency, it is not lawful, from the Pome of view of responsibility according to a precautionary reason. CR # (1660):- Of the animals, camel must be slaughtered not by cutting close to a thyroid but all the way down from the upper portion of the chest and end of the neck, this is not good for other animals or vice verse. Doing otherwise,

makes the camel and the animal unlawful for food. As mentioned before a wrong slaughtering can be corrected before the animal is dead, this rule applies to both camel and other animals. CR # (1661):- In slaughtering an animal it is not necessary to cut very close to the thyroid even from somewhere in the middle of the neck could be cut, provided, all the four elements are cut. CR # (1662):- An instrument made of iron is pushed into the cavity at the upper part of the camel’s chest to slaughter the camel. The other conditions

required in slaughtering are all the same as in the case of other animals. For making the camel to face Qiblah both standing and sitting positions are permissible.

CR # (1663):- If an animal or camel because of some reason, like being out of control, out of reach or in a well etc., cannot be slaughtered by the normai process, it is permissible to slaughter by wounding it fatally, with observing all other required conditions, even, if such wound is not at the place for normal slaughtering pronouncement of the names of Allah and all other conditions as mentioned in the rules of hunting are necessary in this case also.

CR # (1664):- The slaughtering of the mother is slaughtering of her young in her womb also. If the mother dies without being slaughtered and her young also dies inside, it is not good for food, as well as if the young is taken out alive but dies before being slaughtered. If it is taken out alive and is then slaughtered it is good for food. If the mother is slaughtered and the young also dies inside with it, both are good for food. If after the mother is

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slaughtered the young is taken alive, if it also is slaughtered it is good for food and not good if it is not done so. CR # (1665):- If the mother is slaughtered and the young is taken out alive and it dies before it could be slaughtered normally due to shortness of time, it is not good for food according to a stronger reason. If the mother dies without being slaughtered and the young comes out alive but dies without being slaughtered, without any question it is unlawful and not good for food. CR # (1666):- According to a more clear reason it is necessary to immediately cut the slaughtered mother to take out the young according to normal practice, if it is delayed beyond normal practice and then the young is taken out dead, it is not good for food.

CR # (1667):- It is necessary that the young inside the mother is complete, having full furs and wool etc., otherwise, because of slaughtering the mother the young is not good for food. To sum up: (a) The mother is slaughtered. (b) The young is full grown baby. (c) It dies before being taken out of the mother, only then it is good for food. CR # (1668):- It does not matter the animal is edible or not if only it is good for slaughtering.

CR # (1669):- All the edible animals can be slaughtered; if such animal is slaughtered it becomes clean and good for food. Animals like dogs and pigs are not good for slaughtering; such animals, even after slaughtering remain unclean, likewise

is human

beings. Other

animals

that are not edible,

apparently, can be slaughtered and their skins become clean and good for use, as well as their meat, regardless, it is a lion, a tiger, or fox etc., or mammals living in holes like a weasel etc., such skin can be used as water bags and other uses. CR # (1670):- If the inedible animal is of the cold blooded category and reptile whose blood does not shoot out when cut, the dead body of such animals is clean and it is permissible to use their skins etc., according to a more clear reason, but it is not permissible to sell such items unless such animal is properly slaughtered after which it is permissible to sell them also.

CR # (1671):- Of the inedible animals that become clean after slaughtering it does not matter they are of the birds or of the other kinds.

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CR # (1672):- If one finds some meat of an animal that is good for slaughtering and does not know if it is properly slaughtered or not he considers it as not properly slaughtered, thus, it is not good for food, but there is no need to wash clean any thing that may touch it, even, if it is not of the reptile category, as long as one does not know of its being a dead animal without being slaughtered, but if one finds it in the hands of a Muslim who deals with it as if it is slaughtered like his displaying it for sale or other such uses, one considers it as properly slaughtered, unless the opposite is proved. Apparently, it does not matter such use by a Muslim is followed by the use of a non-Muslim or not. If it is discovered that the Muslim took it from a non-Muslim without investigation, it is considered as not properly slaughtered. If it is taken from a person and it is not known whether he is a Muslim or not, it is considered as if taken from a Muslim if the majority of people of the area are Muslims. If some meat is found in the hands of a Muslim and one does not know whether he wants to use it for food or it is for dogs, it cannot be considered as cleansed and properly slaughtered, likewise is buckets made of skins of such animals to carry wastes. CR # (1673):- Of things like meat, fat or skins etc, taken from non-Muslims are considered as if not properly cleansed and slaughtered even if he says they are slaughtered properly, unless it is known that a Muslim had used them before which would indicate as being slaughtered. The fish oil imported from non-Muslim countries is not good for using in food unless there is an emergency, when it is bought from a non-Muslim even if one knows it is taken out of water alive by people but it is not known if it is of the edible category or not. It is permissible to use such oil if it is taken from a Muslim, unless one knows that he has taken it from a non-Muslim without

investigation.

CR # (1674):- About the Muslim whose use could be taken as a sign of an item as being properly cleansed by means of slaughtering it does not matter he is a Shi’a or non-Shi’a, or he believes in ways and conditions which cleanses things or not. CR # (1675):- If leather is brought from Muslim countries or leather materials made therein they are considered clean, as well as if such things are found in the Muslim lands which he marks of being used by Muslims for clothing or furniture, it is considered as properly slaughtered and cleansed and could be used as properly cleansed leathers without the need for investigation, the same rule applies to the imported meats from Muslim countries. CR # (1676):- Preferable matters when slaughtering an animal:

iets |

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(a) A sheep’s legs except one should be tied up. (b) A cow’s legs should all be tied up, only the tail is left free. (c) A camel’s front knees should be tied up and legs are left loose if slaughtering is done while the camel is sitting but if it is done standing, only the front left leg should be tied up. (d) In the case of birds it is preferable to let them loose after slaughtering. (e) The knife should be sharp. (f) The cut should be done quickly. (g) The animal should not see the knife. (h) The animal should not be moved from its place until it dies. (i) The animal should gently be taken to slaughtering place. (j) It should be offered water before slaughtering. (k) The knife should be used with force. (1) It should be done quickly to make it easy for the animal. The holy Prophet has said, God orders you to be kind in every thing. If you kill an animal do it with kindness and slaughter nicely with sharp knife to make it easy. Also the Prophet has said, "Make the knife sharp and do not show it to the animal." CR # (1677):- It is detestable to slaughter at night and Friday mornings until noon time.

THE BOOK DRINKS

OF

FOOD

AND

They are of several kinds:

1. Sea Animals CR # (1678):- The sea animals are not edible except fish which has scales on their skins if one has doubts about the existence of scales, he considers it inedible. A dead fish floating on water is not lawful for food, as well as fish feeding on unclean (NAJIS) substance until such habit according to common understanding is gone.

2ema

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CR # (1679):- The material inside edible fish is also edible.

CR # (1680):- Eggs are treated by the way the egg-laying animal regards its edibility or otherwise. In the case of uncertainty, it is kind with a rough surface is edible and the slipperysurfaced one needs some consideration, according to a more clear reason certainly known is not edible.

is treated in said that the is not, but it what is not

CR # (1681):- Of the domestic animals camels, cows, sheep and goats are edible, of the wild there are sheep, cows, donkeys, deer, bucks, wild ass, but limiting the edible animals to these five kinds is objectionable.

CR # (1682):- Eating horse, mules and donkeys is detestable. CR # (1683):- Of the edible animals the ones that feed on unclean substances like human feces etc. is not lawful for food, without first being kept in quarantine for a prescribed period of time until the habit of feeding such things is gone and according to a precautionary reason, such camel Bos be fed clean food for 40 days, cows 20, sheep 10, a duck 5 and chicken 3 days.

CR # (1684):- If a goat has fed on pig’s milk until it has got strong flesh, it is unlawful for food and also the goats born from it. If it has not got strong flesh from such food, it is kept in quarantine for seven days and is fed goat milk, or fed grass. This rule does not apply to the milk of dog or a non-Muslim human. Also applying this rule to feeding indirectly or fed by the help of human being is objectionable, according to a more clear reason, it is not applicable in this case. CR # (1685):- All the animals having tusk, sharp fang, like lion and fox, jackal; lizard and jerboa and insects like lice, bugs and fleas are not edible.

CR # (1686):- If a man does sex with an edible animal used for food it becomes unlawful for food, its milk and its young generation after generation, regardless, the human being is immature or a grown up, according to a precautionary reason a sane.or insane, a slave or free, one who knows the fact or is ignorant, willing or forced. Also about the animal it does not matter it is male or female, - but the young inside already conceived is not affected, also if the animal is dead or is not of the animals having four legs - such animal must be destroyed or burnt if it dies. If he is not the owner he owes its value to the owner, if it is not used for food but is a carry animal it is moved to another place and its price is paid to owner by the person

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affecting it and sell it in another place. About returning its price to owner or affecting person or give in charity there are several views about it, if such animals get mixed with many others, by casting lottery one is taken out as the affected animal. CR # (1687):- If an edible animal drinks wine and gets drunk and then is slaughtered, it is lawful to use it for food, but it is necessary to wash the parts that have come in contact with wine if the substance of wine is there. Also its stomach and other organs like heart etc. are not good for food due to a precautionary reason. If the animal drinks urine or other unclean things it does not become unclean for food and its inside organs can be used for food after washing if the unclean substance is still there.

3. THE

BIRDS

CR # (1688):- The predators of birds are not edible like falcons and vultures and all that fly and keep their wings steady more often than flapping them. If both conditions are equal, according to a more clear reason the bird is edible, poe one of the following signs also exists; otherwise, it is not good for (a) It has gizzard. (b) It has crow. (c) Spur (of rooster) behind the feet. The existence of one of these elements is enough for considering the bird good for food. If none of these exists, the bird is not good for food, if there is none of these but flapping is there, the latter is given priority and it is considered good for food. If there exists one of the above three elements but the bird flaps its wings less than keeping them steady, it is not good for food. If there is one or all of the three elements but there is uncertainty about the condition of the wings, it is considered good for food. The stork, it is said, has all three elements but possibly its wings are more steady. Thus, it is not good for food, as some of great scholars has given a ruling based on such report. CR # (1689):- The bats and peacocks are not edible. The birds feeding on human feces are also not good for food, until it is kept in proper quarantine. The flies and wasps are not edible. The eggs of inedible birds are not good

685 ‘for food. Also crows are not good for food with some objection about some kinds of it, although, according to a more clear reason they all are not edible. CR # (1690):- Swallows, hoopoes and swans are detestable for food.

(d) THE

SOLID

SUBSTANCES

CR # (1691):- The carcass and its parts are unclean if the animal is not of the cold blooded

animals,

except

furs, wool,

feathers,

horns,

claws, eggs,

(provided, the outer shell has hardened even if it is from the inedible animals) and rennet. CR # (1692):- From the animal slaughtered, according to the popular view the following parts are not edible:

(1) (2) (3) The

The penis. The testicles. The spleen. (4) dung dropping.

(5) Blood. (6) Gall bladder. (7) The bladder. (8) The placenta. (9) The vagina. (10) Two large vertebral muscles extended from the neck to the tail. (11) The spinal marrow. (12) The glands. (13) The small gland under the brain. (14) And the eyes. (15) A small piece between the hoof. The non-edibility of some of these items is objectionable, however, the precautionary rule should be observed. In birds, according to a more clear reason there is nothing like those mentioned above except the waste blood, gallbladder, the spleen and testicles in some of them. The kidney, and the

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ears of heart (a piece that looks like ears and is attached to it) are detestable to eat.

CR # (1693):- The unclean substances are not lawful for food like human feces and a piece separated from living animal, also soil except very little not bigger than a lentil’s grain of the soil from the grave-site of Imam Hussain used for blessings. The minerals, stones, and trees are not lawful. CR # (1694):- The lethal poisons and anything *unaffordably harmful is not lawful like opium, regardless, it is because of frequent use of a large quantity.

5. THE

LIQUID

CR # (1695):- Drinking all intoxicating liquid materials is unlawful like wines etc., even the solid materials of such nature, beer, blood, the blood clot even

if it is in eggs and all that becomes unclean, liquid or not. CR # (1696):- If an unclean substance falls in some solid materials, like butter or honey the unclean substance and whatever has come in contact with it can be removed and the remaining butter, etc., is lawful for food. Also there are thick liquids into which unclean substances do not penetrate. Thus, by the above method unclean substance can be removed and the remaining material is lawful and clean.

CR # (1697):- The oil that has become unclean can be sold and used for the things which are not required to be clean like burning as a source of light. CR # (1698):- The urine of the inedible animals is not lawful, in fact, the same is the rule about the edible ones due to a precautionary rule except the urine of camel, if used as medicine. The milk of all inedible animals, except that of human beings, is also unlawful for food.

CR # (1699):- If it.is not known whether or not some meat is from a properly slaughtered animal and it is not under the hands of Muslim which could indicate its being from a slaughtered animal, it must be avoided. If it is not known whether it is of edible kind or not, it is considered lawful for food.

CR # (1700):- It is lawful for one to eat from the houses of the people mentioned in verse No. 61 Ch. 24 who are brothers and sisters, paternal and

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maternal uncles and aunts and friends and one who is authorized to deal with one’s affairs. Wife and children are of such people. It is lawful to eat reasonably from the houses of such people if one does not know that they dislike it, in fact, if one’s knowledge of not disliking is less than 100% and more than 50% still one can eat, according to precautionary rule, also even if one has doubts about it, although, according to a more clear reason it is lawful. CR # (1701):- If wine turns into vinegar it becomes clean, regardless, it is because of a certain treatment or not.

CR # (1702):- Fruits, Jams are good for food, even if they may smell like wine. : CR # (1703):- If grape juice is boiled on fire or other ways, it becomes unlawful for drink until 2/3 of it is gone due to boiling or is turned into vinegar.

eas In an emergency one is permitted to eat things normally for food to save one’s life, except a rebellion against the IMAM zs.), a hunter for fun or an ambushing thief In the two last cases, it is because of being a less evil of the two. In the first case it is due to the act itself CR # (1705):- Eating from a table containing intoxicating things like wine is not lawful. In fact, even sitting on such a table is not lawful. CR # (1706):- It is preferable to wash one’s hands before eating, pronouncing the name of Allah ie., in the name of Allah the most High, eating with the right hand, washing hands after eating, expressly thanking Allah and Lying on one’s back while placing the right leg on the left leg.

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INHERITANCE

ONE

Introduction: (a) The reasons to make one a heir or heirs are two: 1. Blood relations. 2. Other relations. The first kind of relatives are of three categories: (a) There are two groups in (a): It consists of (1) the parents but not the grand-parents (2) children male and female and their children as far downwards as they may go. (b) Consists of two groups; (1) the grand-parents both male and female as far as upwards as they may be; (2) the brothers and sisters and their children downwards as far as they may go. (c) There is only one group in this category, namely; they are uncles and aunts even as far upwards as they may go and their children as far downwards as they may go from both parents’ sides, provided, they could according to common sense be called relatives of the deceased. The second reason which makes one a heir is of two kinds: (1) The marital (2) and guardianship relationships, and the latter one is of three kinds:

(a) The guardianship of a slave-master. (b) The guardianship of a guarantor. (c) The guardianship of IMAM (A.S.) the highest spiritual leader.

Second Introduction The heirs from another point of view are of five kinds: (a) Those who receive a specified share of legacy all the time and nothing else such as a wife who receives 1/4 if the deceased has no surviving children

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and 1/8 if there are surviving children and she does not receive anything besides the specified share. (b) Those who always receive a special share and may also receive additional sums of the legacy like the mother who receives 1/6 th the existence of surviving children of the deceased and 1/3 when there is no surviving child for the deceased and no other reasons prevent her from receiving 1/3 of legacy she may also receive additional sums like when the specified shares happen to be more than the payable shares. The husband receives 1/4 with the children of the deceased wife and 1/2 without her children and he receives additional sums when there are no other heirs besides the IMAM (a.s), the highest spiritual leader. (c) Those who inherit a specified sum on one hand and receive additional sums as the relatives of the deceased like the father who receives a specified share when the deceased leaves surviving children and without the children as a relative.. A daughter (s) with a son (s) gets her share as a blood relative and without a son she gets a specified share. Sister or sisters from one or both parents with brothers get their share as blood relatives and without them a specified share. Brothers from the mother’s side only get a specified share when there is no grand-father from the mother’s side and as a blood relative with him. d Those who only get a share as blood relatives like the sons of brothers from both parent’s sides or only from the father’s side and like grand-father and paternal and maternal uncles e Those who get their share not as relatives but as guardians like the slave-master, the guarantor or the Imam (a.s).

THIRD

INTRODUCTUION

The specified sum is a share which is specifically mentioned in the holy Quran and it is of six kinds, 1/2,1/4, 1/8, 2/3, 1/3, and 1/6 and the recipients of such shares are thirteen groups of people. 1/2 goes to one surviving daughter, the sister from both parents or the father’s side only when there is no brother(s), and the husband when the wife leaves no surviving children even downwards distantly. 1/4 goes to a husband when the wife leaves surviving children even though many steps away downwards and to a wife when the husband does not leave any surviving children in the same way as in the case of the husband if there are more than one wife they divide the 1/4 in

equal shares.

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One eighth, 1/8 goes to a wife and or wives when the deceased husband leaves surviving children. 2/3 goes to two or more daughters when there is no son of the same category as the daughters and to one for two sisters or more from one or both parents when there is no brother surviving. 1/3 goes to a mother when the deceased leaves no surviving child downwards and no brothers as it will be explained later and to a brother or sister from the mother’s side only when they are numerous. 1/6 goes to each parent when the deceased leaves surviving children downwards and to the mother when there are brothers from both parents or the father’s side only as it will be explained later and to one brother from the mother’s side or one sister from her side only.

FOURTH

INTRODUCTION

When the heirs are numerous, they may all be inheriting specified shares or none has such share or a mix of both groups. The first case wherein all have fixed shares such shares may be:

(a) Equal. (b) More. (c) Less than the legacy. Like the case where heirs are parents each with 1/6 and two daughters with 2/3 equalling a whole one unit 2/6 plus 2/3 is equal to 1 or like the case wherein the heirs are a husband, the parents and two daughters where the specified shares are 1/4, 2/6 and 2/3 totaling 1 & 1/4. A 1/4 more than a whole unit; a case referred to as the case of facing deficit; wherein according to non-IMAMIAS the amount of deficit is divided upon the specified shares, involve proportionate to each share’s ratio, but according to IMAMIAS the deficit is compensated from certain specified shares not all such shares:

(a) When the heirs consist of the first category of heirs, the deficit is taken from the share of daughter or daughters and in the case of the second category heirs like, (b) When they are a husband, a sister from both parents and two sisters from the mother’s side only, in which case the husband’s share is 1/2, that of sister’s from both parents is 1/2 and that of sister’s from the mother’s side only is 1/3 and the total is more than one whole unit and in this case the deficit is compensated from the share of those nearest relatives to father who

e Book of Inheritance

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in the above case is the sister from both parents but not the husband or the sisters from the mother’s only. (c) If the heirs are one daughter whose share is *In and another half of the legacy is extra; according to the non-IMAMIA the extra half is given to the males directly related to the deceased or through other male relatives and sometimes females are also included according to certain details in their law, but according to the IMAMIA laws the extra is given to the heirs who have a specified share. In the above case one-half is given to the daughter as her specified share and the extra half is also given to her as an additional share and when none of the heirs are recipients of fixed shares, the legacy is divided according to the details that will be explained later. When some heirs have fixed shares and others do not have any such shares the legacy is divided among them after deducting the fixed shares according to the details to be mentioned later.

CHAPTER

TWO

Factors causing exclusion of an heir from receiving any share of the legacy, are three: (a) Rejecting one’s religion (ISLAM). (b) Murdering the benefactor.(c) Slavery.

CR # (1707):- A non-Muslim does not inherit a Muslim even though he or she is a close relative, regardless, a non-Muslim is a tax-payer or in the state of war or an apostate of (Fitry) whose one parent is a Muslim during conception or none of whose parents is a Muslim during conception (called an apostate of Milly) or that the Muslim is a Shia or a non-Shia. CR # (1708):- A non-Muslim near-relative is not considered an obstacle to a Muslim relative to inherit, thus, if the deceased Muslim leaves a non-Muslim son and a Muslim grandson, the grandson inherits the grand father but not the son. If a Muslim dies and leaves no Muslim heirs, the IMAM is the heir | of such person.

CR # (1709):- A Muslim inherits non-Muslim relatives and with a Muslim heir existing the non-Muslim relatives are not entitled to receive any thing from the legacy, regardless of the categories and sexes the same rule applies to Muslim guarantor and Muslim slave master.

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However, if there is no Muslim heir from any of the categories except the | IMAM, in such case, the non-Muslim heirs, inherit, if such non-Muslim heir | is originally a non-Muslim but if the heir is an apostate of one or no parent a Muslim at his conception. The IMAM (as) is the heir according to the famous view, but it is not far from reality to consider an apostate as an originally non-Muslim especially if he is an apostate of no Muslim parent.

CR # (1710):- If a non-Muslim heir becomes a Muslim before the legacy is distributed,

he or she receives his/her share like the rest, however, if the new

Muslim is of the category of closer heirs than those of the existing category, he is considered the only heir but if he becomes a Muslim after the distribution he is not entitled to anything from the legacy the same rule applies if he becomes a Muslim during the distribution process, regardless, in the above cases the deceased is a Muslim or a non-Muslim. This is when the heirs are numerous, but if the new Muslim is the only heir, such heir does not inherit, however, if such relative is a wife and becomes a Muslim before distribution the legacy is divided between her and the IMAM (A.S.)(?).

CR # (1711):- If an heir becomes a Muslim only after some of the legacy is distributed, there are several views about such case: (a) It is said that such heir receives his share from the whole legacy. (b) That he does not inherit anything at all. (c) That he inherits from what is not yet distributed only and such a view is more close to the reality.

CR # (1712):- The Muslims inherit their relatives, regardless, of the difference in their schools of thought and laws and the same rule applies to the non-Muslims, (they too inherit their relatives).

CR # (1713):- The Muslim and non-Muslim in the above rules, whether as a heir or a benefactor as excluding someone from the heirs or as being excluded are Muslims and non-Muslims in general; like an originally non-Muslim or as subordinate to a non-Muslim like the children and mentally-ill people. Thus, any child whose one parent is a Muslim during his conception as a baby is considered a Muslim and excludes other heirs from inheriting his parents and non-Muslims do not inherit him, only the IMAM (A.S.) inherits him if he does not have any Muslim heir. Any child whose both parents are non-Muslims at the time of his conception as a baby is considered a non-Muslim, he cannot inherit a

Muslim at all as well as a non-Muslim who has a Muslim heir other than the IMAM (a.s). However, if one of his parents becomes a Muslim before he reaches the age of maturity, he is considered a subordinate of the new

Bid

-

a Book of Inheritance —

oo

693

parent, thus, all rules applicable to Muslims become applicable to

CR # (1714):- There are two kinds of apostate: (a) Natural. (b) National. An apostate naturally is the one whose one parent at the time of his conception as a baby is a Muslim but later he (born of such parent) apostatizes. Whether or not it is necessary that he should be a Muslim after his reaching maturity and then apostatizes to consider him an apostate, there are two views in it; according to the one closer to reality such condition is not required. According to the law he is executed at once and his wife from the time of his apostatizing starts a waiting period like that of a widowed woman and his legacy is distributed among his heirs. The above rules about him do not change even if he repents. However, his repenting, according to strong reason is accepted in reality but not for legal purposes, even, in fact, legally also his repenting is accepted for the rules other than those mentioned above. Thus, his body is considered clean, his new marriage lawful even with his previous wife. The apostate called herein national ( Milly ) is asked to repent, if he refuses to repent he also is executed, his marriage is abrogated and his wife becomes stranger to him if no sex is had with her and she begins the waiting period like that after a divorce starting from the time of his apostatizing if sex is had with her. His legacy is not distributed before his death by execution or without it. If he repents and apostatizes again, executing him without asking him to repent after his apostatizing for the third or fourth times is objectionable. An apostatizing woman is not executed nor her property is transferred to her heirs before her natural death, but her marriage is abrogated and if sex is had with her she begins a waiting period like that of after a divorce, if no sex is had with her she become stranger to her husband soon after her apostatizing. She is kept in confinement and is pressured and made to pray until she repents and her repenting is accepted, regardless, she is an apostate by nature or what is herein called ’national’ apostatizing.

CR # (1715):- To apply rules of apostatizing to one, these conditions must be observed; the person must be: (a) Mature. (b) Not mentally ill and free from compulsion. If one is forced to apostatize and he does so, it will not be of any effect,

the same rule applies if one is not aware or has forgotten or it is a slipping of tongue or because of anger beyond control or due to not knowing the meaning. The second reason excluding one from heirs is murdering the legator.

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CR # (1716):- A murderer does not inherit his victim when it is planned and | unjust killing, if it is killing by mistake it does not have such effect, like when one shoots at birds and his legator, instead, is shot, or is a justified execution or in one’s self defence or in the defence of one’s property or dignity, it does

not have the effect of excluding one from the heirs of one’s legator. If the killing is similar to that by mistake like when one hits another person with an object that does not usually kill and one intended to hit but not kill him but he is killed, there are two views about it according to the one based on a stronger ground it is like killing by mistake and it does not exclude one from one’s legator’s heirs but it is like planned killing as regards the payable of blood money due on the perpetrator not on his relatives consisting of fathers, children, brothers from the latter side and their children and uncles and their children, as contrary to killing by mistake in which case the blood money is due upon the above mentioned relatives of the killer and if these people are

not able to pay some of it or the whole the perpetrator pays it and if he is not able to do the IMAM pays it. Choosing the kind of commodity out of six categories to be paid is up to the recipient of the blood money not the payer. The six categories are: 1 One hundred camels. 2 Two hundred cows. 3 1000 sheep. 4 1000 Dinars. 5 10,000 Dirhams 6 200 Dresses called Hully.

These are for men. The blood money for women is as much as half of the above. In the case of Planned murder, it does not matter whether it is a direct

hit like that of a sword or indirect like throwing a person in front of a killer beast or ordering a child or a mentally ill person to kill, and thus, the victim is killed. If one orders a free person of normal mental condition and an adult who then agrees freely without being compelled and kills the victim, no doubt the commander has committed a crime and is jailed for life, except that he is not considered a murderer deliberately or by mistake. If two people purposely kill their legator, both are denied to inherit their victim, the guardian of the victim can execute capital punishment against the killers and half of the blood money is given back to each of them. If one person kills two of his legators he is denied to inherit any of the two and the guardians of the victims can execute capital punishment on the perpetrators; when one is executed for one of the victims the blood money for the other victim becomes due on the legacy of the perpetrator.

CR # (1717):- In case of killing the legator by mistake the perpetrator is not denied to inherit from the legacy other than blood money as mentioned before, but his inheriting from the blood money is objectionable.

ii “Book of Unheritance

695

CR # (1718):- The killer does not inherit nor he causes to prevent a relative farther than him from the legator to inherit, thus, if one kills his father who has no other son but the purposely killer has a son, the latter inherits his murdered grand-father aid3 if the victim’s parents are surviving they and the grandson inherit the victim.

CR # (1719):- If out of the first category of heirs the only survivor is a son of the killer, the legacy goes to the second category of heirs, consisting of grand-parents, brothers and sisters, and in case none out of this category exists, the legacy goes to the third category consisting of uncles and aunts from both parents’ sides and if there is no heir except the IMAM, the legacy goes to IMAM( ass ). CR # (1720):- If the mother aborts her child, she must pay the blood money to the father or the other heirs, and the amount of such blood money is twenty Dinars when the baby is in the first stage called; ’Nutfa’ 40 Dinars for the second stage called ‘alaga, 60 Dinars for the third stage called ’Muzgha’ 80 Dinars for the fourth stage when bones appear, 100 Dinars when the shape and body is complete and for the last stage when the baby becomes a living being the amount is equal to that payable for a living person. If the father is the perpetrator, the blood money goes to the mother. There are different views in specifying the different stages mentioned, according to a more clear view, stage 1-3 each consists of 40 days. CR# (721):- The blood money is subject to the same rules applicable to the victim’s properties, his debts can be paid off out of the blood money and his will can be executed on such property, regardless, the victim is killed by mistake or it was a planned murder, and that the blood money is received on the basis of a settlement or that because executing capital punishment is not ssible due to the perpetrator’ s deal or hiding away etc. All the heirs can inherit, regardless, one’s being an heir is because of blood relation or some other reason; like the spouses who do not inherit the right to execute capital punishment. The blood relatives from ~he side of the mother only like brothers and sisters and their children or the grand-father and grand-mother and uncles from the mother’s side do not inherit anything out of the blood money.

CR # (1722):- If one inflicts a wound on someone from which the victim dies but before his death he forgives the perpetrator, the blood money is still payable by the perpetrator, regardless, the wound is caused by mistake or a planned hit.

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696

CR # (1723):- If one who is purposely murdered has no surviving heirs except the IMAM, the matter is referred to him who demands capital punishment or blood money through mutual settlement. If the heirs are other than Imam, they may forgive the perpetrator without money but if they forgive him with the condition of receiving money, capital punishment is not waived and there is no blood money due unless the perpetrator agrees.

CR # (1724):- If some heirs waive executing capital punishment it is said that it is not lawful for the heirs other than those waiving to collect blood money, it is also said that collecting is lawful but the collecting party is responsible for the share of those who have not endorsed collecting. The second view is based on a more clear ground. CR # (1725):- If the victim is one already condemned to death legally, like already married fornicator or one who has committed sexual act with a male, is killed without the permission of the IMAM, it is said that in such case executing capital punishment is of no ground as well as blood money nor even expiation or ransom but it is objectionable, such view is valid if killing is in one’s self-defence or the defence of one’s dignity or the killing of abuser of the holy prophet or the IMAM’s (A S.) etc. CR # (1726):- If the victim is indebted and has no legacy to pay off such debts, the guardian can choose to execute capital punishment (instead of blood money) and the creditor cannot stop him from execution.

CR # (1727):- If a deceased is perpetrated against; the blood money is not given to the heirs, it is spent on good causes on behalf of the deceased and if on the deceased there are payable debts, the need for paying such debts out of such funds is objectionable, but, apparently, it is necessary. The third reason excluding one from the heirs is slavery.

CHAPTER

THREE

Details of the shares of first category consisting of children and parents.

CR # (1732):- If the heir is only a father he receives all the legacy. The same rule applies to mother; 1/3 as her specified share and the rest as additional

sum.

The Book of Inheritance

697

CR # (1733):- If the heirs are only the parents, no child or spouses, the mother gets 1/3 if there is no obstacle and 1/6 if there are obstacles as will be explained later, and the rest of the legacy goes to the father. If there also with parents is the husband, he gets In and a wife with parents gets 1/4. CR # (1734):- A single son gets the whole legacy the same rule applies to a single daughter who gets 1/2 as her fixed share and the rest as additional sums.

Two sons receive the whole legacy sharing it in equal sums and two daughters also receive the whole legacy; 2/3 as their fixed shares in equal portions and get the rest of the legacy as additional sum. CR # (1735):- If the heirs are only one son and one daughter or several of each sex all the legacy goes to them, each male receives twice the share of a female.

CR # (1736):- One parent or both with one or several children male or female each receives 1/6 and the rest goes to one or the several children, each male gets twice as much as a female if they are of both sexes.

CR # (1737):- One parent with one daughter receives 1/4 as a fixed share and additional sums and the other 3/4 goes to the daughter. One parent with two or more daughters gets 1/5 as fixed share and additional sums and the rest goes to the daughters who share equally. Both parents with only one daughter, mother gets 4/24, father gets 5/24 and the daughter gets 15/24 each as fixed shares and additional sums. Both parents with two or more daughters each gets 1/6 and the rest goes to the daughters. CR # (1738):- One spouse with one parent and one or several daughters; the husband gets 1/4 and a wife 1/8, one daughter gets 1/2 several daughters get 2/3 and one parent receives 1/6. If anything is left it goes to the father and one or several daughters and if there is any deficit it is paid by the daughters.

CR # (1739):- In the case of the husband, both parents and one daughter, the husband gets 1/4, 1/6 for each parent and the one daughter 5/12 reduced from half by 1/12. If there are two daughters they get 5/12 reduced from 2/3 by 3/12. CR # (1740):- If there is the wife with both parents and two daughters, the wife gets 1/8, the parents each gets 1/6 and the rest goes to the daughters which is less than 2/3, instead if there is only one daughter the legacy would

.

ISLAMIC

LAWS

OF

CONTRACTS

Pi

698

exceed the fixed shares by 1/24 which is given to parents and the daughter as additional sums of which 2/5 goes to parents and 3/5 to the daughter.

CR # (1741):- If there are

parents, a brother and two sisters, or 4 sisters or

two brothers the mother does not get more than 1/6 provided, they are Muslims, free and born separately even if they may have been conceived at the same time, and that they are from the same parents or the same father who is alive and if some of these conditions are missing the mother is not prevented from receiving extra sums and if all such conditions exist and if there is no child male or female with parents, the mother gets 1/6 and the rest goes to father, if there is a daughter with them the parents each gets 1/6 and the daughter gets In and the rest is given to the father and the daughter each 1/4 and nothing is given to mother. CR # (1742):- Grand children take the place of their parents in case they are not alive and each one gets the share of his or her closest relatives. If there are children of daughter they get 1/5 and 2/3 goes to the children of son, all males get twice as much as the share of a female. The grandchilds do not inherit if there survives a child of the deceased male or female, thus, if there

is a daughter and the son of the decreased son, the daughter inherits all the legacy and closer grand children prevent those one step-father from inheriting. Thus, with grand children great-grand-children do not inherit, grand children shares with the parents of the deceased have the same status _ like that of the children of the deceased. The parents of the deceased and his children are of two categories, thus, closeness of parents to the deceased does not prevent grand children from inheriting, thus, if there are parents and a grand child, parents each gets 1/6 and the rest goes to the son of son of the deceased. If there are parents and the children of the daughter of the deceased, the parents get 2/6 the grand children from the daughter’s side get

1/2, 1/6 is given to all as additional sums 3/6 to grand-children and 2/5 to parents. Thus, the whole legacy is made into 5 shares, 3/5 goes to the grand children and 2/5 to the parents as their fixed shares and as additional sums as mentioned in the case of parents and a daughter. If there is one parent with grand children from the daughter’s side, the latter gets 3/4 of the legacy as fixed share and as additional sums and 1/4 goes to one parent as mentioned in the case of one parent and two daughters, the same rule applies to other such cases, thus additional sums besides fixed shares as they are given to a daughter, are also given to grand-children from daughter’s side. With one spouse the deficit is on the shares of the grand-children from the daughter’s side. Thus, if there is the husband, parents and grand-children from the daughter’s side, the husband gets 1/4, the parents 2/6 and grand children from the daughter’s side get 5/12 reduced by 1/12.

The Book of Inheritance

699

CR # (1743):- The oldest son must receive as gift the personal items of the decreased belongings like his dress, rings, sword, and the copy of holy Quran and not other belongings. If there are several sets of each item according to Ihtiyat a settlement with other heirs should be reached about such items. If there is debt on the deceased covering the whole legacy, it is lawful for the eldest son to pay out from the gift items its share of the debts, if the debts are less than the legacy the eldest son pays out the gift items the proportionate share of the debts out of the gift items like if debts amount is $10.00 the

whole legacy $8.00 and gift items $4.00, the eldest son pays $3.1/3. The same rule applies to the burial expenses which are payable from the whole legacy. CR # (1744):- If the deceased in his will may have given all of the gift items or some of it to some one other than the recipient of the gift items nothing is given to the eldest son who is the recipient of gift items. If the deceased in his will may have given 1/3 of the legacy for a certain cause the 1/3 is taken from the gift items and the rest of the legacy proportionately, the same rule applies if the will says $100.00 must be given to someone. If the gift items or some of it may have been mortgaged it is necessary to release such items by paying off from the whole legacy. CR # (1745):- For the dresses as gift items it does not matter, they are for winter or summer, of cotton or skins, small or large like hats etc., and about

socks, belts and shoes it is not certain, although considering them as gift items is more apparent, and it is not necessary for them to be used, if such items are bought for selling or for some other persons, they are not considered gift items.

CR # (1746)- A watch is not of the gift items but in matters of coat-of-arm and such protective items there is objection. To a more clear reason they are

not. For precaution, and for other such items a settlement is to be reached with other heirs to consider the cases of swords and the holy Quran as related to such items is not far from reality. It is objectionable to consider gold rings and such items unlawful to use as gift items. If the deceased may nave lost both hands, the sword is not a gift item and if blind the holy Quran 's not a gift item, if such disabilities take place accidentally when he already as secured such items for himself, they then are considered as gift items.

OR # (1747):- If the recipient of gift items and other heirs disagree about ‘vhether or not a certain item is a gift item or about matters related because iif their own different views or that of the persons they follow in rules of ~hari’a, they must refer the matter to a qualified judge to reach a decision.

1 ISLAMIC

LAWS

OF

CONTRACTS

700

CR # (1748):- If the eldest son would be more than one person because of being of the same age, according to the well known view they share but it is not without strong ground. CR # (1749):- The eldest son is the one who is born first not the one conceived first, in the case of uncertainty it is decided by casting lot, apparently, it is for a son not a grand son. It is not necessary that the eldest son is born at the time of father’s death which removes the need of his being of full age at the time of the death of the legator. CR # (1750):- It is said that the recipient must not be a fool but it is objectionable, apparently, there is no such condition required, and it also is said that there must be other legacy besides the gift items but it requires more thinking. CR # (1751):- It is preferable for the parents inheriting their son to give 1/6 to the closest grand-parents from their side if his/her share in more than 1/6. Whether or not it is necessary that grand-parents be one only or that the deceased has no son, is objectionable.

THE

SECOND

It includes

brothers

CATEGORY and

grand-parents.

CR # (1752):- This category can only inherit the legacy when none of the parents and children of the deceased downwards is surviving. CR # (1753):- If there is no grand-father or grand mother only one surviving brother from both parents inherits the whole legacy as a blood relative and if there are several brothers they share the legacy equally and only one sister from both parents inherits the whole legacy In as her fixed share and the rest

being as a blood relative.

Two or more sisters from both parents inherit the

whole legacy, 2/3 as their fixed share and the other 1/3 as being blood relatives if there is only one or several sisters all from both parents, there is no fixed shares all share the legacy; each male having twice as much as the share of a female. CR # (1754):- Only one brother or one sister from the mother’s side only, inherits the whole legacy, 1/6 as the fixed share and the rest as being a bl relative. Several brothers or sisters or several of both sexes from the mother’s

J

The Book of Inheritance

701

side only inherit the whole legacy, 1/3 as their fixed share and the rest as being blood relatives sharing it all the fixed share and the rest equally. CR # (1755):- The brother or sister from the father’s side only do not inherit with the existence of brother and sister from both parents, but if none of the latter kind of brother and sister exists only one or several brothers from the father’s side inherit the whole legacy is a blood relative and only one sister from the father’s side only gets 1/2 as fixed share and the other In as being the blood relative. More than one sister from the father’s side only get the whole legacy 1/3 as fixed share and 1/3 as being blood relatives, if there are both sisters and brothers from the father’s side only they inherit the whole legacy each male getting twice as much as the share of a female.

CR # (1756):- If there are brothers some from both parents and some from the mother’s side only if the latter is only one, he gets 1/6, male or female, and the rest goes to those from both parents. If those from the mother’s side are several ones they get 1/3 sharing it equally all males and females and the rest goes to those from both parents, regardless of the number, each male receiving twice as much as the share of a female. If from both parents there are sisters and from the mother’s side there is only one brother the fixed share of sisters is 1/3 and the brother gets 1/6 as a blood relative. If from both parents there is only one sister she gets 1/2 as fixed share and the rest of the legacy after excluding 1/6 or 1/3 as the case may be for the brothers or sisters from the mother’s side, nothing is given to the latter group if there are brothers from the father’s side only, they do not inherit in such case.

CR # (1757):- If there are brothers some from the mother’s side only, and some from the father’s only, as mentioned in the previous rule, if there is only one brother from the mother’s side, he gets 1/6. If they are several they get 1/3 as their fixed share distributed among them as equal portions and the test besides 1/3 or 1/6 goes to those from the father’s side only; distributed among them by the rule of twice as much as the share of a female for each male. If there is only one sister from the father’s side only she gets all the legacy after the share of the brothers and sisters from the mother’s side only ither 1/3 or 1/6 is excluded, some as her fixed share and some as additional i CR # (1758):- In all cases of brother(s) from both parents or only from the inother or from the father’s side only the decreased husband gets 1/2 and the \wife gets 1/4. One brother from the mother’s side gets 1/6 and several of ‘hem from the mother’s side only get 1/3 and the rest goes to the brothers rom both parents or to those from the father’s side only males only or of »nixed sexes. If all are females in some cases the fixed shares are more than “he legacy, like the case of either spouse, two sisters from both parents or

ee

ISLAMIC

LAWS

OF

CONTRACTS

702

from the father’s side only, who get 2/3 and two sisters or brothers from the mother’s side only get 1/3. This is equal to legacy and there is nothing left for the husband or wife. The same is true when there is husband and one sister from both parents or the father’s side only and two sisters or brothers from the mother’s side only. 1/2 is for husband, 1/2 for one sister from both parents and there is nothing left for those from the mother side only, but the deficit is not taken from the share of the spouses or those from the mother’s side only. In some cases the legacy is more than fixed shares like the case of a wife, two sisters from both parents, one brother or sister from the mother’s side, in such case, only 1/12 of the legacy is left after the fixed shares are excluded which is given to the sister from both parents, she gets 7/12, the wife 1/4 and 1/6 goes to those from the mother’s side only. CR # (1759):- If there is no brother or sister and the only heir is a grandparent from the father’s or mother’s side, he or she gets the whole legacy; if there are both grandparents, if they are from the father’s side, the legacy is distributed between them by the rule of each male twice as the share of females. If both are from the mother’s side they share it equally. If some of the grandparents are from the mother’s side and some from the father’s side,

the grandparents from the mother’s side get 1/3 even if there is only one person and the grandfather from the father’s side gets 2/3, regardless, they are the grandparents or great grandparents. If there are both grandparents and great-grandparents, the latter do not receive anything, regardless, the grandparents are from the mother’s or father’s side like the case of a grandmother and her father, or like a grandfather and the father of grandmother, the legacy in both cases goes to grandfather and grandmother. If there are brothers from the mother’s side and a grandfather from the father’s side and a great-grandfather from the mother’s side or there are brothers from the father’s side only and grandfather from the mother’s side and great-grandfather from the father’s side, in all of these cases the great-grandparent share brothers and the existence of grandparents does not exclude the great-grandparents from the heirs. CR # (1760):- If there is husband or wife with grandparents the husband gets 1/2 and wife 1/4. The grandparents from the mother’s side get 1/3 and the rest goes to the grandparents from the father’s side. CR # (1761):- If there are brothers with grandparents the grandfather, no matter how high ascendantly they may go, are like brothers and @ grandmother is like a sister even if they ascendantly go onwards. The grandfather as such shares brothers and so is grandmother. If there are brothers and grandparents, they may all be related to father only or to the mother only or of different sides like grandparents from the father’s and brother from the mother’s side or each of grandparents and brothers are

The Book of Inheritance

703

from both and different sides or one group is only from one side and the other group from different side like grandparents being from both parents and brothers from the father’s side only or mother’s side only or that of the brothers some are from the father’s, some from the mother’s side only and the grandparents are all from the father’s side only or all from the mother’s side only and both groups can be male or female or several of each sex, thus, the following cases: (a) only one grandparent male or female or several males or several females or several of both males and females from the mother’s side and the same would be the case with brothers the legacy is distributed among them with equal shares for each.

(b) that each brother or grandfather exists with the same possibilities the father’s side they too divide the legacy in the same way if they all are males or all females. If they are of different sexes they divide the legacy by the rule of twice as much for males. (c) the grandfather is from the father’s side and brother from both parents’ side the same above rule applies to them. (d) that grandparents some are from the father’s side and some from mother’s side males or females or a male and a female and the same would be the case with brothers some from the father’s side and some from the mother’s side males or females or males and females, those from the mother’s side brothers and grandparents receive 1/3 sharing equally and

those from the father’s side get 2/3 dividing it by the rule of twice as much as the share of a female for a male person, in case of different sexes they share equally if they are of the same sex.

(e) that there exists the grandfather with one of the possible cases from the father’s side and the brother with one of the possible cases from the mother’s side, the brother gets 1/6 if there is one and 1/3 if there are several sharing .equally and the rest goes to grandfather(s) and if they are of different sexes | they divide by rule of twice as much for males; (f) or that the case is reverse of the above namely grandparents are from the mother’s side and the brother is from the father’s side, grandfather gets 1/3 d the brother get 2/3. If with a grandfather from the mother’s side there is a sister from the father’s side if there are only two or more and the fixed hares are not more than the whole, for one sister is 1/2 for grandfather, 1/3 d 1/6 should be precautionary dealt with on the basis of a settlement.

ala

ISLAMIC

LAWS

OF

CONTRACTS

704

If the grandparents are from different sides and there is one or more brothers from the father’s side, the grandparent from the mother’s side even a female and one gets 1/3 and if there are several they share it equally even if they are of different sexes and 2/3 for the grandparents from the father’s side and the brothers from the same side they divide by the rule "twice as much for males, and if there is with a brother from the mother’s side with the

grandparent from the same side they get 1/3 sharing equally even if they are of different sexes and 2/3 for the grandparents from the father’s side according to the rule of twice as much for a male. If there is a grandparent from the father’s side only and the brothers are of different sides, the brothers from the mother’s side get 1/6 if there is one and 1/3 if there are more sharing equally, and the brothers from the father’s side with the grandparents from the same get the rest. If the grandparents are from the mother’s side only and brothers are from different sides, the grandparent with brothers all from the same side get 1/3 sharing equally and the rest goes to the brother from the father’s side.

CR # (1762):- Children of brothers do not inherit with the existence of brothers, regardless of which side a brother is, provided, there is no obstacle,

in case, there is a grandfather and a brother’s son from the mother’s side with a brother from the father’s side, the brother’s son with the grandfather gets 1/3 and 2/3 goes to the brother.

CR # (1763):- If there are no brothers their children inherit instead and distribution of the legacy with grandparents is carried like the way with their fathers, the children receive the share of the closest relative. If there are

children of brother or sister from the mother’s side only, they get 1/6 which is the share of their father or mother as a fixed share and the rest as additional sums. If there are children of two brothers and two sisters or are brother or sister the children of each brother get 1/6 as fixed shares and the other 2/6 as additional sums. If there are the children of three brothers, each group of children receive the share of their father or mother, the same rule applies to the children of brothers from both parents or from the father’s side only. They divide their share equally if they are from the side of the mother even if they are of different sexes. According to the well known view the rule of twice as much for male applies. If they are from the brother from both parents or from the father’s side only but this is not free from objection. It is not far from reality if they share equally but according to precautionary rule it should be on the basis of a settlement among the parties concerned.

.ane a eras

The Book of Inheritance

705

CR # (1764):- If there are the children of a brother from the mother’s side and the children of brother from both parents or from the father’s side only, the children of brother from the mother’s side get 1/6 even if there are many

of them and the rest goes to those from both parents or the father only even if they are just a few. CR # (1765):- If there are no brothers or their children from both parents their grandchilds inherit the generation closer to the legator even from the side of the father only exclude from inheriting the generation one step farther even though they may be from both parents.

THE

THIRD

CATEGORY

It includes the uncles and aunts from both the father and mother’s sides.

CR # (1766):- No one from this category inherits if there exists any one from the two previous categories. The people of this category are members of one group, the nearest to the legator prevents those farther than him to the legator from inheriting. CR # (1767):- One paternal uncle gets the whole legacy and two or more of them also get the whole legacy sharing equally, the same rule applies to paternal aunts, regardless, they are from one or both parents. CR # (1768):- When there are both male and female of paternal uncle and aunts, distribution is done by the rule of "twice as much for males one share goes to those from the mother’s side only who share it equally, and the other two shares are made into three of which one share is divided equally among the aunts from the father’s side only and the other two shares go to the aunt and uncle each male getting twice the share of a female and also the aunts from father’s side there is settlement and in the case of those from the mother’s side it is done on equal share basis.

CR # (1769):- If there are paternal uncles and aunts of different relations as regards the number of parents like being of both or only one parent the legacy is i divided into three one goes to maternal aunt and uncle and the other two is made into six of which one goes to paternal! aunt and uncles who ‘are from the mother’s side and the rest goes to the aunts and uncles whose ‘male get twice the share of female.

4 ISLAMIC

LAWS

OF

CONTRACTS

706

If there are maternal aunts and uncles from the mother’s side only and paternal aunts and uncles from both parents sides or only from father’s side only the property is made into three of which one goes to maternal aunts and uncles and the two other shares are made into three of which one is given to aunt and uncles from the mother’s side only who share it equally and the other two share are given to those from both parent’s side whose male gets twice the share of a female.

CR # (1770):- One maternal uncle gets all the legacy and so do two or more of them sharing equally and one maternal aunt gets all the legacy and so do two or more of them. If there are one or more from both sexes they share the legacy equally, regardless, they are from both or only one parent and males or females and according to Ihtiyat they should divide as such on the basis of settlement and agreement of all parties. If they are different in their relation to parents like being from both or only one parent, those only from the father’s side do not inherit, and the property is divided into six of which one goes to the maternal aunt and uncles from the mother’s side only and the rest goes to those from both parents. According to Ihtiyat they should divide it on the basis of settlement and agreement of all parties. According to popular view those from the mother’s side get 1/6 if there is only one and 1/3 if there are more than one sharing equally and the rest goes to those from both parents who also share equally, but it is Ihtiyat to do such distribution on the basis of settlement and the agreement of all parties.

CR # (1771):- If there are paternal and maternal uncles and aunts 1/3 goes to maternal uncles and aunts even if there is only one person, 2/3 to the paternal uncles and aunts even if there is only one person and if in each group there are more than one person they share the 1/3 and the 2/3. CR # (1772):- The children of both paternal and maternal uncles and aunts replace their parents when the latter ones do not exist. The children of paternal uncle or aunt do not inherit when a paternal uncle or aunt is there nor do the children of maternal uncle and aunt inherit when there is a maternal one the legacy goes to the paternal aunts or uncles as mentioned that people of this category are of one group not two so that one may think that children of paternal uncles do not inherit with paternal uncle or aunt but inherit with maternal uncle or aunt and the children of maternal uncle or

aunt but do inherit with

paternal uncle or aunt in fact, the children only

inherit when no close relative survives.

CR # (1773):- The children of uncles and aunts, paternal and inherit the share of their own parents from the legacy of their there is the son of paternal aunt with the son of maternal uncle paternal aunt get 2/3 even if it is a female and the son of maternal

maternal, legator. If the son of uncle gets

ee

The Book of Inheritance

707

1/3 even if there is more than one. The distribution among the children of paternal uncles and maternal uncles is carried like in the rule (1717) about children of brothers. CR # (1774):- It is already mentioned that paternal uncle or maternal uncle or aunt prevent the children of this generation from inheriting and so doe: each previous generation to the next, their children and grand-children, thus

the children of paternal uncle prevent the grand-children of paternal uncle from inheriting and so is on the side of maternal case except one case whicl is the case of the son of paternal uncle from both parents with the paterna uncle from the father’s side only in which case such sons and uncles prevent: such uncie from inheriting. The uncle, in this case, does not inherit at all. I in such case there is a maternal uncle or aunt the son of uncles would no! inherit and the legacy goes to paternal uncles and maternal uncles and aunt If there are one paternal uncle and the sons of paternal uncles and spouses the applicability of previous rule becomes objectionable. CR # (1775):- If there is a paternal uncle with the paternal uncle of the father of the legator the latter does not inherit and so on, with the generatior of uncles closest to the legator, uncles and aunts of the generation farthe: than this generation do not inherit.

CR # (1776):- The children of the generation of uncles and aunts closest tc the legator prevent the generation of aunts and uncles farther to the parent: of these children as well as the next generation of the uncles and aunts whc still come farther than the previous generation of uncles and aunts.

CR # (1777):- If there are uncles and aunts of the father and the ones of the same generation of the mother of both side in the same way, those from the mother’s side get 1/3 sharing equally and those from the father’s side get 2/3 According to the popular view 1/3 goes to the maternal uncles and aunts o! his father sharing equally and the rest goes to those from the fathers side o! this generation who distribute by the rule of "twice as much for male" and it i: not far from reality that those from the father’s side also share the legacy equally, regardless, of their being maternal or paternal. CR # (1778):- If there is husband or wife with uncles and aunts, the husbanc gets 1/2 and wife gets 1/4 the maternal uncles and aunts get 1/3 and the res! goes to the paternal uncles and aunts who also share equally males anc females.

CR # (1779):- If there is husband or wife with maternal uncles only she or he gets 1/2 or 1/4 and the rest is distributed among the uncles as mentionec

ISLAMIC

LAWS

OF

CONTRACTS

708

before and the same rule applies if there is husband or wife with paternal uncles and aunts.

CR # (1780):- If for an heir there are two reasons to inherit if one of those reasons does not block the other reason from inheriting, that person gets the share of both reasons, regardless, if it is of the same kind like the _grand-father from the father’s side being also the grand-father from the

mother’s side or different reasons like if one’s brother from the father’s side marries one’s sister from one’s mother’s side and, has a child from her this person is the paternal and maternal uncle of the legator’s son and to her son he is the son of paternal uncle and the son of maternal uncle from the mother’s side. If one reason prevents the other reason the person inherits by _the preventing reason like if two brothers marry two ladies who give birth to both brothers and one brother dies and his wife marries the other brother’s widow and she gives birth, the son of this lady from the first husband is the son of uncle to her son from the second husband and a brother of the second son from the mother’s side, he inherits as a brother not as an uncle.

CHAPTER PART I

ON

INHERITANCE

INHERITANCE DUE TO SOME REASON OPPOSED TOBLOOD RELATION.

AS

Such reasons are of two kinds, to be an heir due to marital relation and because of guardianship. Thus, we have two sections:

(A): MARITAL RELATION

_CR # (1781):- The husband inherits 1/2 of the wife’s legacy if there is no child and she gets 1/4 of the legacy if there are children even though they may be many generations away and the wife gets 1/4 of the husband’s legacy if there are no children and with the children she gets 1/8 of the husband’s legacy even though they may be several generations away.

CR # (1782):- If there is no heir for the wife from the blood relatives or heirs for some reason except the IMAM, 1/2 of her legacy goes to her husband as fixed share and the other 1/2 as additional sums according to a strong

a.

The Book of Inheritance

709

reason. If a husband would leave no heirs of the blood relatives or because of some reason except the IMAM, his wife gets 1/4 as fixed share. Whether or not the rest is given to her as additional sums in all cases or only when the IMAM is absent or that the rest goes to the IMAM, there are several views, according to the strongest the rest goes to IMAM. CR # (1783):- If there are two wives or more they share the 1/8 equally, if there are children and with out children they share equally the 1/4. CR # (1784):- The spouses inherit each other only when their marriage is permanent; in a temporary marriage they do not inherit each other, but to have sex is not a condition for inheritance, if one of them dies before having sex the other spouse inherits the deceased party; wife or husband. A divorced wife in a revokable divorce also inherits but not in an irrevocable divorce.

CR # (1785):- If a person suffering from an illness divorces his wife and husband dies she inherits him, regardless, the divorce is revokable or irrevocable, provided, his death takes place before the end of the year in which divorce has taken place and he did not recover from the illness in which he divorced her and the divorce is not because of her demand for divorce and it is not a divorce in the khul’i form, in which the wife pays something to the husband to get divorce, or in the form of Mubarat in which both parties dislike each other, or she has not already married someone else, otherwise, her inheriting is objectionable. If he dies after the year of recovery she does not inherit. CR # (1786):- If a person suffering from an illness divorces his wives who are four in number and marries another four and does sex with them and dies from the same illness before the end of the year of divorcing the divorced women share the 1/4, or 1/8 of the legacy with the wives. CR # (1787):- If he divorces one out of four and marries one more and then he dies and it becomes confused as to which one of the four was divorced, according to a Hadith which is followed practically the newly married gets 1/32 and the others including the divorced one share the remaining 3/32, if there is a child or there are children, otherwise, she gets 1/4 of, and the others get 3/4 of 1/8. Could this be applied to all such confused case? Or it is

decided by lottery there are two views about it, deciding by lottery is based on a strong ground.

CR # (1788):- The husband inherits from all the legacy of the wife, moveable and immovable, land and other property and the wife inherits from only the moveable properties of the husband, and ship, if any and animals, but not

seid ~

ISLAMIC

LAWS

from the substance - what is established is given to her and empty or in use for

OF

CONTRACTS

710

of land nor its price but she inherits from the price of on it like buildings, trees etc., if money for establishments it is necessary for her to accept it, regardless, the land is farming etc.

CR # (1789):- in order to find how much is the value of a building, for example, the buildings must be considered as vacant and see how much is it

worth. From the price and value, 1/4 or 1/8 goes to a wife. CR # (1790):- Apparently, a wife inherits from the substance of the fruits of the trees existing at the time of the death of husband and the other heirs cannot force her to have her share from the price not the substance. CR # (1791):- If the heirs do not give her the price due to some good excuses or without it for a year or more, the wife can demand the rent of the building, and if the trees produce fruits she has her share in the substance of those fruits which she can demand, also if other heirs would not give her, her share from the price, she is entitled to receive her share from the profits and fruits etc.

CR # (1792):- If the trees are cut or broke and building demolished apparently, it is not lawful to force her to have her share from the price, it is _ lawful for her to demand from the substance like moveable properties, however, if the trees or buildings are about to break or crumble, it is lawful to force her to have her share from the price before breaking or demolition takes place, the same rule applies to the palm shoots and branches. Whether or not trellises and booths holding up materials have the same rules; there are two views about it according to the stronger one they are of the same rule, thus the heirs can force her to have her share from the price and value and the same rule applies to straw huts. /-

CR # (1793):- In the case of canals, springs and wells the wife inherits from them like she does from the land and equipments therein are like the buildings and the heirs can force her to have her share from the prices of such items but she inherits from the substance of water there and the heirs cannot force her to have her share from the price. If a well is dug but the legator dies before the well reaches water, she inherits from it and she must get her share from the price. CR# (1794):- If the heirs would not be willing to pay her from the price of trees and buildings, instead they would give her from the substance she shares them in the substance and it is not lawful for her to demand the price. If the heirs change their mind about giving her from the substance to

The Book of Inheritance

Ge

consider it obligatory for her to accept the price is not free from objection, according to a more clear reason it is not necessary for her to accept the price. CR # (1795):- The price from which her share must be paid is the price of the day of payment. CR # (1796):- It was mentioned in the rules of marriage that if a person suffering from an illness marries a lady and does sex with her she inherits him and if he dies before doing any sex with her, his marriage is void. She is not entitled to any Mahr (dowry) and there is no inheritance among them.

GUARDIANSHIP 1.The

guardianship

RULES of slave

. master.

CR # (1797):- A Slave Master inherits his previously owned slave now freed with certain details involved which are not of much concern these days. 2. The guardianship of guarantor. CR # (1810):- It is lawful for two people to become each other’s guardian and undertake to be responsible for the other party’s liabilities and say, " I contract with you so you undertake the responsibility to pay if any, blood money rule (Aqalah) for me and inherit me and the other party says, n I accept it." If two people conclude such a contract it is valid and the rules applicable to it become effective, namely payable of blood money and inheriting and it is lawful to limit the contract to paying of blood-wit only without mentioning inheritance, but inheritance becomes effective at the same time, but the opposite, namely, contracting inheritance only without mention of blood money, the validity of such contract and the applicability of related rules is objectionable, thus, payable of blood money is not effective without any doubt, in fact, according to a more clear reason the contract is not effective in both latter cases.

CR # (1811):- A guardianship as such is valid between two people, even if only one side agrees to pay and not vice verse. They can also contract requiring each one to pay for the other like saying," you pay blood money for me, I pay for you, you inherit me and I inherit you, and the other party says, n seeds it," the rules of paying blood money and inheritance become effective.

ISLAMIC

LAWS

OF

CONTRACTS

wD

CR # (1812):- Such contract is only valid when the guaranteed person has no heir; blood-relatives

or Slave Master who has set a slave free. If the

guarantee is from both sides it is necessary that they would not have any blood relative heirs or a Slave Master who has set free a slave on the part of both of them if the guarantee is from one side such condition is applicable to him only not to the other party. If a person who has heirs of blood relatives or Slave Master the contract is not valid, and because of this if the deceased see other heirs as blood relatives or Slave Master the guarantor does not erit.

CR # (1813):- If such a contract is made with a person who has no heirs or a Slave Master and then a son is born to the guaranteed person it becomes void or whether or not, in such a case, the contract remains valid there are

two views about it. CR # (1814):- If there is a husband or a wife with such guarantor he gets 1/2 and if it is a she there is 1/4 for her, and the rest goes to the guarantor. a # (1815):- If such guarantor dies the guardianship is not transferred to is heirs.

3. THE

GUARDIANSHIP

OF

IMAM

(AS)

_ CR # (1816):- If there are no blood relatives, Slave Master and guarantor the legacy goes to the IMAM (AS) except if there is the husband he gets 1/2 as fixed share and the rest is given to him as additional sums and if there is wife she gets 1/4 and the rest goes to the IMAM (AS) as mentioned before. _ CR # (1817):- If the IMAM (A S) is there the legacy goes to him who deals with it as he decides. IMAM ALI (a.s) used to give it to the needy of the town. If the IMAM is not there it goes to the highest authority in Shari’a who deals with it like he deals with the share of the IMAM from Khums and it is used for the causes wherein the share of IMAM from Khums is spent as mentioned in the rules of Khums.

CR # (1818):- If one who has no heir besides the IMAM (AS) gives all of his legacy through a will to the needy, the poor, the destitute and those left on a journey without money, based on some hadith and views of some scholars, the effectiveness of such will is objectionable but its effectiveness is not far from reality, but if it is willed for causes other than those mentioned, according to a more clear reason it is not effective.

The Book of Inheritance

CHAPTER

ON

CHILDREN

SARS

OF

MULA’ANAH

CR # (1819):- The child in a cursing case (see rule 1518) inherits his/her mother and the relatives from the mother’s side like brothers, maternal

uncles etc., but does not inherit those related to the father only. If there is only the mother she gets 1/3 as fixed share and the rest of the legacy as additional sums according to a strong reason, and if with mother there are children she gets 1/6 and the rest goes to the children who distribute it by the rule of n twice as much for males "...except when there is only one daughter who gets 1/2 and the rest.is given as additional sums to her and the mother each 1/4, If there is a husband or wife he gets his share like others and the rules related apply as mentioned in different categories of heirs. There is no difference in other respects between this deceased and others except in respect that his father and the relatives from his side do not inherit him, like paternal uncles, grandfathers and brothers. If there are brothers from ‘both parents they divide the legacy equally male and female. CR # (1820):the relatives acknowledges relatives from

The child mentioned in the above rule inherits his mother and from her side. He does not inherit his father unless he him after L?AN denying by cursing he does not inherit the the father’s side if he is not acknowledged, whether or not they

inherit him if the father acknowledges

him, there are two views in it,

according to the stronger one they do not inherit. CR # (1821):- If the father refuses to undertake the liabilities, such as blood money and receiving inheritance, then the child dies, it is said that his legacy goes to the blood relatives of his father but not to his father, it is also said that father’s refusal is of no effect and this is based on a strong reason.

CR # (1822):- A child born due to fornication does not inherit his father or father’s blood relatives nor would they inherit him. To say that he does not inherit his mother and the relatives from her side is objectionable. His/her own children and spouse inherit him/her and vice verse, if he dies without heirs his legacy goes to his ex-slave master if any, if there is none it goes to guarantor and if there is none, it goes to the IMAM. If there is either spouse he gets 1/2 and nothing as additional sums are given to wife if the only heir is the IMAM in the case of husband, however, the other 1/2 goes to him as mentioned before.

ISLAMIC

LAWS

OF

CONTRACTS

714

—CR# (1823):- An unborn baby even just a fetus at the time of the death of the legator is an heir although miscarried but alive even not yet fully developed, and his/her being born alive must be proved, even the testimony of ladies would do it. If the baby dies after being miscarried but was alive, his/her legacy goes to the heir even though the baby’s chance of survival is slim. If the miscarried baby is not alive such baby does not inherit even if it is known that the baby was alive in the womb or had moved after being separated from the womb if such move is not a moving of life. CR # (1824):- If half of the baby is out and is crying and then dies before aie separated from the mother, such baby does not inherit and is not inherited. _ CR # (1825):- It is necessary that the share of two males is set aside for a baby heir yet to be born, and fixed shares are given from the rest, and when the baby is born if it is two males the matter is settled if there is one male and one female or one male and two females or only one female the extra if any is given to those having fixed shares proportionate to the shares, if the heirs agree to it, if not, only the share of only one male is set aside for the unborn heir and the rest is distributed among heirs if there is assurance enough for the safety of the extra share for the yet to be born baby and the possibility of getting it back for the baby even after distribution in case he is born alive.

CR # (1826):- The blood money of a fetus is inherited by the heirs as mentioned before. CR # (1827):- In the case of a missing person or a person whose whereabouts are unknown, his share is set aside. About the length of time of keeping such share there are several views, according to the stronger reason 7 such share must be kept for four years and a search is carried on during this _ period and if still there is no news of him the property is distributed among the heirs who would inherit him if he would die at the end of the four years but not who would inherit him if he would die after the said period, and he also inherits his legator if the latter dies before the end of the said period but not if it takes place after the said period. According to a more clear reason it is lawful to distribute such property among the heirs after ten years without need to search.

CR # (1828):- If two people discover that they are relatives and they acknowledge it they inherit each other if there are no other heirs, otherwise, it is objectionable, as mentioned in the rules of professing".

The Book of faliaice

FAS

CHAPTER ON THE INHERITANCE OF HERMAPHRODITE OR A BI-SEXUAL PERSON. CR # (1829):- A hermaphrodite is a person who has the genital organs of both sexes. If one’s sex is known the person is dealt with accordingly or the following signs are examined: That organ from which the urine comes out or from which it comes first, if from both, which one stops later, but it is objectionable. If there is none of the above signs and the matter is undecided, 1/2 of the share of male and 1/2 of the share of female is given to such a person. If there is a son and a hermaphrodite person according to the above rule the legacy is made 2x3x2 equals 12, of which 7/12 goes to the son and 5/12 goes to hermaphrodite. If there are two sons and a hermaphrodite, either 3 shares equally or it is 4/5 for the boy and 1/5 for hermaphrodite or it is 33x5x22 equals 30 of which 8/30 goes to hermaphrodite 11/30 for each son.

CR # (1830):- One who has two heads or if the trunk is branched into two if they both wake up at the same time it is considered one, otherwise, two, according to a more clear reason other rules also, in such case, become

applicable.

CR # (1831):- If one’s sex is not known for some reason like being drowned etc., the legacy is distributed by means of casting lot, the same rule applies to a person who has the organ of none of the sexes; on one ticket the word male is written and on the other female and a lottery is drawn, after reciting "O lord, you are the only God, You know more about the unseen and seen, You

decide and judge for Your servants in matters disputed among them, tell us about this child so it can inherit the share you have given him in Your book". The two tickets are then mixed with other tickets and one is taken out of them and the legacy is given accordingly. According to a more clear reason the above prayer is a preferable not obligatory prayer, although, according to one group of scholars it is obligatory.

ta

ISLAMIC

LAWS

OF

CONTRACTS

716

CHAPTER ON THE DROWNED etc.

INHERITANCE

OF

PEOPLE

OR DEAD BY THE RUBBLE AND SUCH

FALL OF DEBRIS AND HEAPS Of MATERIALS

CR # (1832):- Such people inherit each other if the following conditions exist. (A): They all or one of them has some property. (B): They are relatives or there are reasons for them to inherit each other and there is no reason preventing from inheritance. (C): It is not known who drowned or died first and who was last. Each one inherits the other from the property belonged to him/her at the time of death not from what he/she inherited after the death of the other. If both spouses are drowned and it is not known who died first and who have no children, the husband gets In and the wife 1/4, thus 1/2 that he got from his wife’s legacy and 3/4 of his own legacy after deducting his wife’s share, namely 1/2 plus 3/4 is given to his heirs. In plus 1/4 of her legacy is given to the heirs of the wife as her legacy after applying the above rule in her case. The inheritance of a living heir in such a case has the following rules. If a wife and her daughter are drowned the living husband gets 1/4 from the legacy of the wife even if she has no other children besides the daughter drowned with her, he does not get 1/2.

The mother gets 1/3 from the legacy of the drowned daughter and 2/3 go to the living father. If a father who has no son is drowned with his daughter his living wife gets 1/8. In case more than two people are drowned, ’A’ and ’B’ inherit ’C’ as if both were living and ’C’ had just died then ’B’ and ’C’ inherit ’A’ as if both were living and so on.

CR # (1833):- If they because of some reason other than drowning and falling buildings etc., in case, they are burnt or killed in battle or killed by the beasts, about the applicability of the above rules there are two views; according to a stronger reason such rule is applicable, in fact, according to a more clear reason in general the rule is applicable even if they die without any known reason.

The Book of Inheritance

TAT:

CR # (1834):- If of the people dead due to drowning some inherit and not the other, except for reasons unknown like if they are a father and his sons due to the above rule the sons do not inherit each other unless the father is dead. Their inheriting, thus, is objectionable, in fact, according to a more clear reason they do not inherit. CR # (1835):- According to the popular view in a case like a drowning there must be people to inherit them. If there is no one the related rule is not applicable like if two brothers are drowned of whom only one has a son. It is also said that such condition is not required, they inherit each other and the latter is based on a stronger reason.

CHAPTER ON THE ZOROASTRIANS

INHERITANCE

OF

MAJOOS

CR # (1836):- There is no doubt that Zoroastrians inherit each other by means of valid blood relations and the valid reasons, whether or not they inherit by means of invalid blood relations and reasons there are several views about it: If one of them who has married his sister who has given birth, it is said that she inherits him as a wife and her baby as a child, it also is said, she does not inherit and nor the baby that there are details in it; in the above case the baby inherits because of blood relation but not because of other reasons to inherit thus the baby’s mother does not inherit as a wife.

All the above views are popular but the first one is more strong because of a hadith were it not because of that hadith the last view would have been the strongest.

CR # (1837):- If there are two reasons for one to inherit he inherits because of both, like if a Zoroastrian marries his mother and dies the mother inherits

him both as a wife and as a mother, the same rule applies if he marries his own daughter, she would inherit her both as a daughter and as a wife. If one of two reasons prevents the other, the person inherits by means of preventing reason not the prevented like if he marries his mother who gives birth, the baby is a brother also from the mother’s side, the baby inherits as a son not ‘as brother and so on. | |

'CR # (1838):- A Muslim does not inherit by means of an invalid reason but inherits by means of an invalid blood relation, provided, it is not because of

3)

ISLAMIC

LAWS

OF

CONTRACTS

718

fornication. A baby because of sexual relation by mistake inherits andis | inherited. If the mistake is only from one side only from that side he cher} and is inherited. The Glorious God is All knowing. |

APPENDIX The common denominators of fixed shares in the Holy Book are five numbers. Two for one half and three for 1/3 and 2/3, four for 1/4, six for 1/6 and eight for 1/8. CR # (1839):- the following are ways to find a common denominator for the fixed shares, in case, several of them are involved. If there is already a common denominator existing the matter is settled like 1/8 and 1/4 or 1/3 and 1/6 . The legacy is divided by the number eight and six. In the cases like 1/4 > 1/6 the solution is either 6 x 2 or 3 x 4 which give a fraction of 3/12 or 2/12.

Or it is like 1/3 and 1/8 in such case it is done by multiplying like 3x8 equals 24 which becomes 8/24 and 3/24. Or it is 1/3 and 1/4 in which case it is done by 3x4 equal 12 which becomes

4/12 and 3/12.

CR # (1840):- If the recipients of the share are several people it is multiplied by their own number like four wives and a son it is done from 4x8 equal 32. If there are the parents and four wives it is done by 3x4 which is 12x4 equal 48. All Praise To Allah; May He Send His Blessings Upon The Holy Prophet And His Noble Family. The End.

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This book: which consists of two major parts; the (ISLAMIC LAWS OF WORSHIP and CONTRACTS) is translated from the collections of Fatwas of the scholars such as the Book known as Tawzihul Masa’il written in Persian and Minhaj Al-Salihin written in Arabic. Tawzihul

Masa’il is the Book that is used by almost all of the Mujtahidin of our time with some editing to reflect their Fatwas for the Persian speaking readers. ~The Book Minhaj Al-Salihin, in Arabic, originally-reflected the Fatwas of Marhum Ayatullah Sayyid Muhsin Al-Hakim of Najaf, Iraq and with some editing, it also reflects the Fatwas of Ayatullah Al-Khoee who lives in Najaf, Iraq.

This book. consisting.of Islamic Laws of Worship and Contracts with facts about the Islamic principles of beliefs,

some social issues. and notes about the prayer reflects the views and Fatwas_ that are prepared and compiled by Ayatullah Al-’uzma Sayyid Muhammad Al-Husayni Shirazi Dama Zilluhu oe

ISBN

1-8?7940e-;

| 9"781879"402225

i ||