Book C: The Nature of Legal Rulings

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BOOK C: THE NATURE OF LEGAL RULINGS

(A: In the Shafi'i school there is no difference between obligatory (fard) and requisite (wajib) except in the pilgrimage, where nonperformance of a requisite does not invalidate the pilgrimage, but necessitates an expiation by slaughtering. For any conditions necessary for its validity and all of its integrals (rukn, pl. arkan) are obligatory, since it is unlawful to intentionally perform an invalid act of worship.)

c2.2 The sunna (n: or recommended (mandub)) is that which the Lawgiver asks be done, but does not strictly require it. Someone who performs it out of obedience to Allah is rewarded, though someone who refrains from it is not punished.

c2.3 The permissible (mubah) is what the Lawgiver has neither requested nor prohibited, so the person who does it is not rewarded or punished. Rather, doing or not doing it are equal, though if a person does it to enable him to perform an act of obedience to Allah, or refrains from it for that reason, than he is rewarded for it. And if he does such an act to enable him to perform an act of disobedience, he is sinning.

c2.4 The offensive (makruh) is that which the Lawgiver has interdicted but not strictly forbidden. A person who refrains from such an act out of obedience to Allah is rewarded, while the person who commits it does not deserve to be punished.

c2.5 The unlawful (haram) is what the Lawgiver strictly forbids. Someone who commits an unlawful act deserves punishment, while one who refrains from it out of obedience to the command of Allah is rewarded.

(n: Scholars distinguish between three levels of the unlawful:

minor sins (saghira, pl. sagha'ir), which may be forgiven from prayer to prayer, from one Friday prayer (jumu'a) to another, and so forth, as in mentioned in hadith;

enormities (kabira, pl. kaba'ir), those which appear by name in the Koran or hadith as the subject of an explicit threat, prescribed legal penalty, or curse, as listed below at book p;

and unbelief (kufr), sins which put one beyond the pale of Islam (as discussed at o8.7) and necessitate stating the Testification of Faith (Shahada) to reenter it.

Repentance (def: p77) is obligatory for all three (al-Zawajir 'an iqtiraf al-kaba'ir (y49), 1.5-9).)

c2.6 (Nawawi:) There is no doubt that the merit of an act varies. Fasting, for example, is unlawful on 'Eid Day, obligatory before it, and recommended after it. The prayer is highly desirable most of the time, but offensive at some times and situations, such as when restraining oneself from using the lavatory. Reciting the Koran is desirable, but offensive when bowing in the desirable, but offensive when bowing in the prayer or prostrating. Dressing one's best is good on the 'Eid or on Friday, but not during the drought prayer. And so forth.

Abul Qasim al-Junayd (Allah have mercy on him) said, "A sincere person changes forty times a day, while the hypocritical show-off stays as he is forty years."

The meaning of this is that the sincere person moves with what is right, wherever it may lead, such that when prayer is deemed better by the Sacred Law, then he prays, and when it is best to be sitting with the learned, or the righteous, or guests, or his children, or taking care of something a Muslim needs, or mending a broken heart, or whatever else it may be, then he does it, leaving aside what he usually does. And likewise for fasting, reciting the Koran, invoking Allah, eating or drinking, being serious or joking, enjoying the good life or engaging in self-sacrifice, and so on. Whenever he sees what is preferred by the Sacred Law under the circumstances, he does it, and is not bound by a particular habit or kind of devotion as the show-off is. The Prophet (Allah bless him and give him peace) did various things of prayer, fasting, sitting for Koran recital and invocation, eating and drinking, dressing, riding, lovemaking with his wives, seriousness and jest, happiness and wrath, scathing condemnation for blameworthy things, leniency in punishing those who deserved it and excusing them, and so ion, according to what was possible and preferable for the time and circumstances (al-Majmu' (y108),1.17- 18).

c3.0 OBLIGATORY ACTS

c3.1 ('Abd al-Wahhab khallaf:) Obligatory acts are distinguished in four ways, according to various considerations.

One distinction is whether current performance is time-restricted or non-time-restricted.

A time-restricted obligatory act is one the Lawgiver demands be done at a particular time, such as the five obligatory prayers, for each of which the time for current performance is set, such that the particular prayer is not obligatory before it, and the individual is guilty of serious sin if he delays it past its time without excuse.

A non-time-restricted obligatory act is one which the Lawgiver strictly demands, but does not specify a time for its current performance, such as the expiation obligatory for someone who swears and oath and breaks it (def: o20).

c3.2 A second distinction between obligatory acts is made on the basis of who is called upon to perform them, namely whether an act is personally obligatory or communally obligatory.

A personally obligatory (fard al-'ayn) act is what the Lawgiver requires from each and every morally responsible person. It is insufficient for someone to perform such an act on another's behalf, such as the prayer, zakat (def: h1.0), pilgrimage, keeping agreements, and avoiding wine or gambling.

A communally obligatory (fard al-kifaya) act is what the Lawgiver requires from the collectivity of those morally responsible, not from each one of them, such that if someone undertakes it, then the obligation has been fulfilled and the sin and responsibility (n: of nonperformance) is lifted from the rest, while if no one undertakes it, then all are guilty of serious sin for neglecting the obligation, Examples include commanding the right and forbidding the wrong (def: book q), praying over the dead, building hospitals, lifesaving, fire fighting, medicine, industries people require, the existence of Islamic courts and judges, issuing formal legal opinions, responding to someone who says "as-Salam 'alaykum," and testifying in court. The Lawgiver requires that these obligatory acts exist in the Islamic Community regardless of who does them. But He does not require they be done by each person, or some particular one, since the interests of the Community are realized by the existence of these things through the efforts of some of those morally responsible, and do not entail every particular person's performance of them.

Someone able through himself or his property to perform the communally obligatory act is obliged to perform it, and someone unable to do it himself is obliged to urge and have the person do it who can. If the obligatory act is done, all are cleared of the sin, and if neglected all the guilty of serious sin. The person capable of it is guilty because he neglected a communally obligatory act he could have done, and the rest are guilty because they neglected to urge him and have him perform the obligatory act he was capable of.

When an individual is the only one available who can perform a communally obligatory act, it becomes personally obligatory for him.

c3.3 A third way Obligatory acts are distinguished is by the amount of them required, that is, whether the act is of a defined amount or an undefined amount.

Obligatory acts of defined amount are those for which the Lawgiver has determined a particular quantity, such that the subject is not free of the obligation until he has done the amount stipulated by the Lawgiver, as with the five obligatory payers, or zakat.

Obligatory acts of undefined amount are those which the Lawgiver has not stipulated the amount of, but rather demands them from the subject in an undetermined quantity, such as spending in the way of Allah, cooperating with one another in good works, feeding the hungry, helping those in distress, and so forth.

c3.4 A fourth distinction between obligatory acts is whether an act is a specific obligation, or an obligation to choose between certain alternatives.

Specific obligations are those in which the Lawgiver demands the act itself, such as the prayer, fasting in Ramadan, paying for merchandise, rent from a tenant, or returning something wrongfully taken; such that the individual is not free of the obligation until he does that very act.

An obligation to choose between certain alternatives is when the Lawgiver requires the performance of one of a given number of actions, such as one of the options in expiating a broken oath, where Allah Most High requires the person who has broken his oath to feed ten poor people, clothe them, or free a slave ('abd,def:w13), and the obligation consists of doing any of these three things ('Ilm usul al-fiqh (y71), 106, 108-11).

c4.0 RECOMMENDED ACTS

c4.1 (`Abd al-Wahhab Khallaf:) Recommended acts are divided into three categories.

c4.2 The first is recommended acts whose demand is confirmed. Someone who neglects such an act does not deserve punishment, but does deserve censure and blame. This includes the sunnas and recommended acts that are legally considered to complete obligatory acts, such as the call to prayer (adhan) or performing the obligatory prayers,in a group, as well as all religious matters that the Prophet (Allah bless him and give him peace) diligently performed and did not omit except once or twice to show that they were not obligatory, like rinsing out the mouth when performing ablution, or reciting a sura or some verses of the Koran after the Fatiha during the prayer. This category is called the confirmed sunna (sunna mu akkada ) or sunna of guidance.

c4.3 The second category is those acts whose performance is sanctioned by sacred Law such that the person who performs them is rewarded, though someone who omits them deserves neither punishment nor blame. This includes acts the Prophet (Allah bless him and give him peace) did not diligently perform, but did one or more times and then discontinued. It also includes all voluntary acts, like spending on the poor, fasting on Thursday of each week, or praying rak'as (units) of prayer in addition to the obligatory and confirmed sunna prayers. This category is called the extra sunna or supererogatory (nafila).

c4.4 The third category consists of the superlatively recommended, meaning those acts considered part of an individual's perfections. It includes following the Prophet (Allah bless him and give him peace) in ordinary matters that proceeded from him as a human being, as when a person eats, drinks, walks, sleeps, and dresses like the Prophet used to. Following the example of the Prophet (Allah bless him and give him peace) in these and similar matters is an excellence and considered among one's refinements, as it shows one's love for the Prophet and great attachment to him. But someone who does not follow the Prophet (Allah bless him and give him peace) in matters like these is not considered a wrongdoer, because they are not part of his lawgiving (A: though such acts are rewarded when one thereby intends to follow the prophet (Allah bless him and give him peace), and every desirable practice one performs means a higher degree in paradise which the person who neglects it may not attain to).

Acts of this category are called desirable (mustahabb), decorum (adab), or meritorious ('Ilm usul al-fiqh (y71), 112).

c5.0 UNLAWFUL ACTS

c5.1 (`Abd al-Wahhab Khallaf:) The unlawful is of two kinds.

The first is the originally unlawful in itself, meaning the Sacred Law forbids it from the outset, such as adultery, theft, prayer without ritual purity, marrying a member of one's unmarriageable kin while knowing them to be such, selling unslaughtered dead animals, and so forth, of things that are intrinsicallu unlawful because they entail damage and harm, the prohibition applying from the outset to the very act.

The second is the unlawful because of an extrinsic reason, meaning that the initial ruling of an act was that it was obligatory, recommended, or permissible, but an extrinsic circumstance became linked with it that made it unlawful, such as a prayer performed in a garment wrongly taken, or a sale in which there is fraud, or a marriage whose sole purpose is to allow the woman to remarry her previous husband who has pronounced a threefold divorce against her, or fasting day after day without breaking the fast at night, or an unlawfully innovated divorce (def:n2.3), and so forth, of things unlawful because of an external circumstance. The prohibition is not due to the act itself. But because of something extrinsic to the act; meaning the act is not damaging or harmful in itself, but something has happened to it and become conjoined with it that makes it entail damage or harm.

c5.2 One consequence of the above distinction is that an intrinsically unlawful act is uncountenanced by the Law to begin with, so it cannot be a legal cause or reason, or form the basis for further legal cosequences, Rather, it is invalid, Because of this, prayer without ritual purity is invalid, marriage to a close unmarriageable relative when one knows them to be such is invalid, and the sale of an unslaughtered dead animal is invalid. And something legally invalid is without other legal efficacy.

But an act that is unlawful because of an extrinsic circumstance is intrinsically lawful, and can thus be a legal reason and form the basis for further legal consequences, since its prohibition is accidental to it and not essential. Because of this a prayer while wearing a garment wrongfully taken is legally valid, though the person is guilty of serious sin for having taken it; a sale in which there is fraud is legally valid (N: though the buyer has the option to cancel the sale and return the merchandise for a full refund); and an unlawfully innovated divorce is legally effective.

The reason for this is that the prohibition of an act because of an extrinsic event or circumstance does not vitiate either the basis of its being a legal cause or its identity, provided all its integrals and conditions exist. As for intrinsic unlawfulness, it negates the basis of an act's being a legal cause and vitiates its identity by the nonexistence of one of its integrals or conditions, so that it is no longer something that is of legal consideration ('Ilm usul al-fiqh (y71), 113-14).

c6.0 DISPENSATION (RUKHSA) AND STRICTNESS (`AZIMA)

c6.1 (`Abd al-Wahhab khallaf:) Strictness is what Allah initially legislates, of general rulings not concerned with one circumstance rather than another, or one individual rather than another.

c6.2 Dispensation is when what is normally forbidden is made permissible because of neccessity or need.

For example, if someone is forced to make a statement of unbelief (kufr) it is made permissible, to ease his hardship, for him to do so as long as faith remains firm in his heart. Likewise with someone who is forced to break his fast in Ramadan, or forced to destroy the property of another; the normally prohibited act which he is forced to do becomes permissible for him, to ease the hardship. And it is made permissible for someone forced by extreme hunger or severe thirst to eat from an unslaughtered dead animal or drink wine. (A: The latter is not permissible even under such conditions in the Shafi'i school)

Dispensation also includes being permitted to omit an obligatory act when an excuse exists that makes its performance a hardship (dis: c7.2. second par.) upon the individual. Thus, someone who is ill or travelling in Ramadan is permitted not to fast. And someone who is travelling is permitted to shorten prayers of four rak'as to only two rak'as ('Ilm usul al-fiqh (y71), 121-22).

c6.3 (n:) Since it is permissible for a Muslim to follow any of the four Imams in any of his acts of worship, comparison of their differences opens another context from discussing dispensation and strictness, a context in which classical scholars familiar with various schools often use the term "dispensation " to refer to the ruling of the school easiest on a particular legal question, and "strictness" to refer to the ruling of the school that is most rigorous. Which school this is varies from question to question. The following entry discusses how and when it is permissible for ordinary Muslims to use dispensation in the sense of following easier rulings from a different school, while entry c6.5 discusses the way of greater precaution (al-ahwat fi al-din) taken by those Muslims who purposely select the strictest school of thought on each legal question because of its being more precautionary and closer to godfearingness (taqwa).

c6.4 Scholars frequently acknowledge that the difference of the Imams is a mercy, and their unanimity is a decisive proof, Sheikh `Umar Barakat, the commentator of 'Umdat al-salik, says:

"It is permissible to follow each of the four Imams (Allah be well pleased with them), and permissible for anyone to follow one of them on a legal question, and follow a different one on another legal question. It is not obligatory to follow one particular Imam on all legal questions" (Fayd al-llah al-Malik (y27), 1.357). This does not, however, imply that it is lawful to indiscriminately choose dispensations from each school, or that there are no conditions for the above mentioned permissibility. Imam Nawawi was asked for a formal legal opinion on whether pursuing dispensations in such a manner was permissible;

(Question:) "Is it permissible for someone of a particular school to follow a different school in matters that will be of benefit to him, and to seek out dispensations?"

He answered (Allah be well pleased with him), "It is not permissible to seek out dispensations [A: meaning it is unlawful, and the person who does is corrupt (fasiq)], and Allah knows best" (Fatawa al- Imam al-Nawawi (y105),113).

But when forced by necessity or hardship to take such a dispensation (A: even retroactively as when one has finished the action, and then makes the intention to have followed another Imam's school of thought on the question), then there is nothing objectionable in it, provided that one's act of worship together with its prerequisites is valid in at least one of the schools. One may not simply piece together (taliq) constituent parts from various schools in a single act of worship, if none of the schools would consider the act valid. An example is someone who performs an ablution that is minimally valid in the Shafi'i school by wetting only a few hairs of his head in the ablution sequence, something not permitted by Hanafis, and then prays behind an imam without himself reciting the Fatiha, something permitted by Hanafis but not shafiis. His ablution, the necessary condition for his prayer is inadequate in the Hanafi school and his performance of the prayer is inadequate school, with the result that neither considers his prayer valid, and in fact it is not, Whoever follows a ruling mentioned in this volume from another school must observe the conditions given at w14 and make sure his worship is valid in at least one school, which for prayer can best be achieved by performing all recommended measures in the present volume relating to purity, for example, e5, e11, and so on, as if obligatory.

c6.5 A second way to use differences between schools is to take the way of greater precaution by following whoever is most rigorous on a given question. For example, when performing the purificatory bath (ghusl), rinsing the mouth and nostrils with water is a nonobligatory, sunna measure according to the Shafi'i school, but obligatory and necessary for the purificatory bath's validity according to Hanafis. The way of greater precaution is for the Shafi'i to perform it as diligently as if it were obligatory, even though omitting it is permitted by his school.

(`Abd al-Wahhab Sha'rani:) My brother, when you first hear of the two levels of this scale (n: dispensation and strictness), beware of jumping to the conclusion that there is absolute free choice between them, such that an individual may without restriction choose either dispensation or strictness in any ruling he wishes. It does not befit a person able to perform the stricter ruling to stoop to taking a dispensation permissible to him. (A: The more rigorous is always preferable in the Shafi'i school even when the dispensation is permissible.) For as you know my brother, I do not say that the individual is free to choose between taking the dispensation or taking the stricter ruling when he is able to perform the stricter ruling obligatory for him. I take refuge in Allah from saying such a thing, which is like making a game of religion. Of an absolute certainty, dispensation are only for someone unable to perform the stricter ruling, for in such a case , the dispensation is the stricter ruling in relation to him.

Moreover, I hold that mere sincerely and honesty demand of anyone who follows a particular school not to take a dispensation that the Imam of his school holds is permissible unless he is someone who needs to; and that he must follow the stricter ruling of a different Imam when able to, since rulings fundamentally refer back to the word of the Lawgiver, no one else; this being especially necessary when the other Imam's evidence is stronger, as opposed to what some followers do.

We find among the dictums of the Sufis that one should not follows a position in Sacred Law for which the evidence is weaker except when religiously more precautionary than the stronger position. For example, the Shafi'i opinion that (n:a male's) ablution is nullified by touching a girl who is a child or touching the nails or hair of a woman: though this position is considered weaker by them (n: than the position given at e7.3),it is religiously more precautionary, so performing ablution for the above- mentioned things is better (al-Mizan al-kubra (y123,1.10-11).

(A Because more rigorous rulings necessarily meet the requirements of less rigorous ones (though not vice versa), following more rigorous rulings from another school is unconditionally valied, unlike following its dispensations. And Allah knows best.)

c7.0 THINGS ONE MAY BE HELD LEGALLY RESPONSIBLE FOR

c7.1 ('Abd al-Wahhab Khallaf:) Three conditions must exist in any act that it is legally valid to make an individual responsible for.

The first is that the act be well enough known to the individual that he can perform it in the way required of him. It should be noted that the individual's knowledge of what he is responsible for means the possibility of his knowing it, not his actual knowledge of it. Whenever a person reaches puberty, of sound mind and capable of knowing the rulings of Sacred Law by himself or by asking those familiar with them, then he is considered to know what he is responsible for, and rulings are carried out on him, their consequences exacted of him, and the excuse of being ignorant of them is not accepted from him. The second condition is that it is known that the ruling has been imposed by someone who possesses the authority to do so and whose rules the individual is obliged to observe, since it is through this knowledge that the individual's will can be directed to obey him. This is the reason that in any proof for a ruling of Sacred Law the first point discussed is why it is legally binding for individuals.

The third condition is that the act the subject is responsible for be possible and within the capacity of the subject to do or to refrain from. This condition in turn implies two things: first, that it is legally invalid to impose something impossible, whether impossible in itself or impossible because of another thing; and second, that it is invalid to ask that a particular individual be responsible for someone else's performing an act or refraining from one, since someone else's action or inaction is not within the individual's own capacity. Hence, a person is not responsible for his father's paying zakat, his brother's performing the prayer, or his neighbor's refraining from theft. As regards others, all a person is obliged to do is to advise, to command the right and forbid the wrong, for these are acts he is capable of.

Nor is it legally valid to make a person responsible for various innate human states which are the results of natural causes that are not of the person's acquisition or choice, such as emotional arousal when angry; turning red when embarassed; love, hate, grief, elation, or fear when reasons them exist; digestion; breathing; being short or tall, black or white; and other innate traits with which people are born and whose presence or absence is subject to natural laws, not to the individual's will and choice, and which are thus beyond his capacity and not among the things possible for him. And if some primary texts have reached us that apparently show that there is responsibility for some of the things that are not within a person's capacity, these are not as they seem. For example, the order of the Prophet (Allah bless him and give him peace),

"Do not become angry,"

is outwardly an order to refrain from something natural and unacquired, namely, anger when motives for it exist. But the real meaning is "Control yourself when angry and restrain yourself from its bad consequences."

c7.2 From the condition that an act must be within the individual's capacity before he can be held accountable for it, one should not jump to the conclusion that this implies there will not be any hardship whatsoever for the individual in the act. There is no contradiction between an act's being within one's capacity and its being hard. Nothing a person is responsible for is completely free of hardship, since moral responsibility is being obliged to do that in which there is something to bear with, and some type of difficulty.

Hardship, however, is of two types. The first is that which people are accustomed to bear, which is within the limits of their strength, and were they to continue bearing it, it would not cause them harm or damage to their persons, possessions, or other concerns. The second is that which is beyond what people are accustomed to bear and impossible for them to continually endure because they would be cut off, unable to go on, and damage and harm would affect their persons, possessions, or one of their other concerns. Examples include fasting day after day without breaking it at night, a monastic life, fasting while standing in the sun, or making the pilgrimage on foot. It is a sin for someone to refuse to take a dispensation and insist on the stricter ruling when this will probably entail harm (`Ilm usul al-fiqh (y71), 128-33).

c8.0 WHO MAY BE HELD RESPONSIBLE

c8.1 (`Abd al-Wahhab Khallaf:) Two conditions must exist in an individual for it to be legallly valid to hold him responsible.

The first condition is that he is able to understand the evidence that he is responsible for something, such that it is within his capacity to understand legal texts from the Koran and sunna by which the ruling is imposed, whether by himself of through another (dis: b5.1). Since human reason is something hidden, unobservable by outward sense perception, the Lawgiver has conjoined responsibility for rulings with something manifest and perceptible to the senses from which reason may be inferred, namely, puberty. Whoever reaches puberty without showing signs of impaired intellectual faculties, his capacity for responsibility exists. And conversely, neither an insane person nor child are responsible, because of their lack of intellect, which is the means of understanding the evidence that something is a ruling. Nor are those responsible who are in a state of absentmindedness or sleeping, because while they are heedless or asleep it is not within their capacity to understand. The Prophet (Allah bless him and give him peace) said,

"The pen has been lifted from three: the sleeper until he awakens, the child until his first wet dream, and the insane person until he can reason."

The second condition (n: for the legal validity of holding someone responsible) is that he be legally eligible for the ruling. Eligibility is of two types, eligibility for obligation, and eligibility for performance.

c8.2 Eligibility for obligation is the capacity of a human being to have rights and duties. This eligibility is established for every person by the mere fact of being human, whether male, female, fetus, child, of the age of discrimination, adolescent, intelligent, foolish, sane or insane, healthy or ill; because its basis is an innate attribute found in man. Every human being, whoever he or she may be, has eligibility for obligation and none lacks it because one's eligibility for obligation is one's humanness.

There are only two human states in relation to eligibility for obligation, partial and full. One could have partial eligibility for obligation by being entitled to possess rights over others but not have obligations towards them, like a fetus in its mother's womb, which has rights, since it can be an heir, inherit a bequest, and the proceeds of an endowment (waqf) can accrue to it, but it does not have any obligations to others. Full eligibility for obligation means a person has rights upon others and obligations towards them. Every human being acquires it at birth.

c8.3 Eligibility for performance is the capacity of an individual for words and actions that are legally significant, such that if an agreement or act proceeds from him, it legally counts and entails the rulings applicable to it. If he prays, fasts, makes the pilgrimage, or does anything obligatory; it is legally acknowleged and discharges the obligation. And if he commits a crime against another's person, possessions, or honor, he is held accountable for his crime and is bodily or financially penalized.

So eligibility for performance is responsibility, and its basis in man is intellectual discrimination. There are three states which a person may have in relation to eligibility for performance:

A person could completely lack or lose eligibility for performance, like a young child during his childhood or an insane person during his insanity (regardless of his age), neither of whom has eligibility for performance because they lack human reason, and for neither of whom are there legal consequences entailed by their words or actions. Their agreements and legal dispositions are null and void, the limit of which is that if either of them commits a crime against another's person or possessions, he is responsible for paying the indemnity out of his own property, but not subject to retaliation in his own person. This is the meaning of the scholars' expression, "The intentional act of a child or insane person is an honest mistake." -
A person could have partial eligibility for performance, an example of which is the child who has reached the age of mental discrimination (def: f1.2) but not puberty (k13.8), or the retarded person, who is not disturbed in intellect nor totally bereft of it, but rather is weak-minded and lacking in intellect, so that the Sacred Law treats him as it does the child with discrimination.
Because each of these two possesses the basis of eligibility for performance by the fact of having discrimination, those of their legal actions which are absolutely beneficial to them, such as accepting gifts or alms, are valid without their guardian's permission.
As for those of their legal actions which are wholly harmful to them, such as giving donations or waiving their rights to something, these are not in any way valid, even with the guardian's permission. The gift, bequest, endowment, and divorce of such persons are not valid, and the guardian's permission is irrelevant to these actions.
The legal actions of the child with discrimination or the retarded person which are between absolute benefit and absolute harm to him are valid, but only on condition that the guardian gives his permission for them. If the guardian gives permission for the agreement or disposition, it is implemented, and if he does not permit it, the action is invalid.
Or a person could have full eligibility for performance by the fact of having reached puberty sound of mind.
Events, however, may befall this eligibility. They include those that happen to a person without affecting his eligibility for performance by eliminating or diminishing it, but which alter some rulings concerning him because of considerations and interests that arise through these events, not because of loss or lessening of eligibility for performance. Examples include the foolhardy and the absentminded person. Both have reached puberty with normal intelligence and have full eligibility for performance, but to protect their own property from loss and prevent them from becoming a financial burden on others, they are declared legally incompetent in financial dealings such that neither their financial transactions nor donations are valid. This is not because of a lack or lessening of their eligibility for performance, but rather to protect their own property.

A debtor has likewise reached puberty with normal intelligence and possessess full eligibility for performance, but to protect the rights of his creditors, he is declared legally incompetent to make transactions with his money that infringe on the rights of his creditors, such as charitable donations (`Ilm usul al-fiqh (y71) 134-40).

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