BOOK K: TRADE

Table of Contents:

k1.0 SALE

(O: The legal basis for sale, prior to scholarly consensus (ijma'), is such Koranic verses as the word of Allah Most High,

"Allah has made sale lawful..." (Koran 2:275)

The more reliable of the two positions reported from our Imam (Allah Most High be well pleased with him) is that this verse is general in meaning, excluded by other evidence. For the Prophet (referring to all sales except those specifically). (Allah bless him and give him peace) forbade various sales butdid not explain the permissible ones, his not doing so proving that the initial presumption for the validity of a sale is that it is lawful. This is also borne out by hadiths such as the one is which the Prophet (Allah bless him and give him peace) was asked what type of earning was best, and he answered.

"The work of a man's own hand, and every pious sale."

Meaning sales free of cheating and deceit. Hakim related this hadith, which he classified as rigorously authenticated (sahih).

Lexically, sale means to transact something for something else. In Sacred Law it means to exchange an article of property for other property in a particular way. Its integrals are six:

1. the seller;
2. the buyer;
3. the price;
4. the article purchased;
5. the spoken offer;
6. and the spoken acceptance.)

(N: Sale (bay'), whereever it is used in the ruling below, refers to both exchanging goods for money and exchanging them for other goods (n: i.e. barter).)

THE SPOKEN OFFER AND ACCEPTANCE

k1.1 A sale is not valid unless there is a spoken offer (O: by the seller) and spoken acceptance (O: by the buyer(. Offer means the statement of the seller or his agent (wakil, def: k17) "I sell it to you" or "I make it yours." Acceptance means the statement of the buyer or his agent "I buy it" or "I take possession of it" or "I accept,"

(A: Regarding mujatah, which is giving the seller the price and taking the merchandise without speaking, as when buying something whose cost is well known, Bajuri notes, "Nawawi and a group of scholars have adopted the position that sales conducted by it (A: mu'atah) are valid for all transactions that people consider sales, since the determining factor therein is that acceptance of both parties, and there is no decisivelly authenticated primary text stipulating that it be spoken, so common acknowledgement ('urf, def: f4.5) is the final criterion (A: as to what legally constitutes acceptance)" (Hashiya al-Shaykh Ibrahim al-Bajuri (y5), 1.355).)

(N: The category of mu'atah also includes sales conducted by means of vending machines (A: provided it is clear what one is buying before one puts the money in the machine).)

It is permissible for the buyer's acceptance to precede the offer, such as his saying, "I buy it for so- and-so much," and for the seller to reply, "I sell it to you," It is also permissible to say, "Sell it to me for so-and-so much," and for the seller to reply, "I sell it to you." All of these are unequivocal expressions. Sales can likewise be effected, if the intention exists, by equivocal expressions such as "Take it for so- and-so much," or "I consider it yours for so-and-so much," thereby intending a transaction with the buyer, who then accepts. If one does not intend a transaction by such expressions, then the sale is nothing (O: but empty words, and the buys is obliged to return the merchandise to its owner if it still exists, or replace it if used up while in his possession).

It is obligatory (O: for the validity or the sale agreement that other conditions be met, among them):

1. that the interval between the offer and its acceptance not be longer than what is customary (O: the criterion being whether it gives the impression that one is averse to accepting, not merely a brief interval. Other conditions include:
2. that conversation extraneous to the agreement by either of the two parties not intervene between the offer and acceptance, even if inconsiderable, since, it gives the impression of nonacceptance;
3. that the offer and its acceptance correspond, for if the offered price is one thousand, and the buyer "accepts" for five hundred, the transaction is invalid;
4. that neither the offer nor acceptance be made conditional (ta'liq) upon an event extraneous to the agreement, such as saying, "I sell it to you, should my father die";
5. and that the sale not be subject to time stipulations (ta'qit) such as saying, "I sell it to you for a period of one month";

-because both (d) and (e) vitiate the necessary intention).

A mute's gesture is as binding as a speaker's words.

THE BUYER AND SELLER

k1.2. The conditions that must exist in the buyer and seller are:

1. having reached puberty (A: Imam Ahmad permits the buying and selling of minor items by children, even before they have reached the age of discrimination (def:f1.2) and without their guardian's permission);
2. sanity:
3. that one's disposal over one's property not be suspended (def:k13);
4. and that one not be unjustly forced to make the sale. (O: The agreement of someone unjustly forced to sell his property is invalid because of lack of consent, though it is valid if he is justly forced, as when he is ordered to sell his property to repay a debt.)
5. If a Koran is being purchased for someone, it is obligatory that the person be Muslim. (O: The same is true of books of hadith and books containing the words and deeds of the early Muslim, "Koran" in this context means any aork that contains some of the Koran, even a slight amount.) (A: This ruling holds for any religious books, even the Tabaqat of Sha'rani (n: a collection of biographical sketches of Muslims), though the Hanafi school permits non-Muslims to buy or be given the Koran and other Islamic books.)
6. It is a condition that someone buying weapons be of a people who are not at war with Muslims.

THE OPTION TO CANCEL A SALE AT THE TIME OF THE AGREEMENT

k1.3 When a sale is effected, both buyer and seller have the option to cancel at the time of the agreement (khiyar al-majlis), meaning the right to nullify the agreement at any time before they (O: physically) part company, or both waive the right to cancel, or until one of them cancels the sale.

(O: The option to cancel at the time of the agreement exists at every sale, and for its duration, the ownership of the articles exchanged is suspended (def:k1.5)

STIPULATING AN OPTION TO CANCEL PERIOD

k1.4 Both the buyer and seller have the right to stipulate an option to cancel period, an interval during which either party may cancel the agreement, of up to three days (O: provided the days are consecutive. The option to cancel period is not period, is not valid if the two parties stipulate an indeterminate period or leave it open-ended by merely stipulating "an option to cancel" (A: though the buyer has the right to return the article because of defects (dis:k5) regardless of what they stipulate), or when the period is determinately known, but exceeds three days). The option to cancel may be given (A: depending on what the buyer and seller agree upon) to both parties, or just one of them (O: and not the other, or they may give the option to a third party, since the need for this might arise. In any case, both buyer and seller must agree t the conditions). But such a period may not be stipulated for transactions in which it is unlawful to part company before taking possession of the commodities exchanged (O: by one or both parties) as is the case in exchanging the kinds of foodstuffs and moneys in which usurious gain (riba, dis: k3.1-2) is present, or in buying in advance (salam, dis:k9.2(a)).

k1.5 If the option to cancel is given to the seller alone, then the merchandise is considered his property during this period (O: meaning that he owns the proceeds earned by the property, and its increments such as its milk, eggs, or fruit, and he is obliged to cover its maintenance and other expenses).

If the option to cancel is given to the buyer alone, then the merchandise is considered his property during this period (O: and the above increments and expenses are his).

If the option to cancel is gives to both buyer and seller, then the ownership of the merchandise during this period is suspended, meaning that if the transaction is finalized, it is established that it belonged to the buyer (O: from the time the agreement was first made, together with its increments and expenses), but if the transaction is cancelled, it is established that it belonged to the seller (O: meaning that it never left his ownership).

k2.0 THE THINGS EXCHANGED IN A TRANSACTION

(N: Things here refers to both the merchandise and its price.)

k2.1 Five conditions must exist in any article transacted. It must:

1. be pure (O: in itself, or if affected with filth, it must be capable of being purified by washing);
2. be useful;
3. be deliverable (O: by the seller to the buyer, meaning that the buyer is able to take possession of it);
4. be the property of the seller or the person whom the seller has been authorized to represent;
5. and be determinately known (ma'lum) (O: to the buyer and seller, as to which particular thing it is, how much it is, and what kind it is, in order to protect against chance or risk (gharar), because of the hadith related by Muslim that the Prophet (Allah bless him and give him peace) forbade the transaction of whatever involves chance or risk) (n: w42 discusses buying and selling insurence policies.)

PURITY

k2.2 It is invalid to transact something that is impure in itself (najasa, def: e14.1) such as a dog, or something affected with filth that cannot be purified (O: by washing), like milk or shortening, though it it can be, like a garment, then it may be transacted.

USEFULNESS

k2.3 It is invalid to transact something which is not useful (O: whether the reason for invalidity is the article's baseness or the smallness of the amount being dealt with,) such as vermin, a single grain of wheat, or unlawful musical instruments (dis: r40) (O: such as the mandolin or flute, since there is no lawful benefit in them).

DELIVERABILITY

k2.4 It is invalid to transact something undeliverable, such as a bird on the wing or something that a third party has wrongfully taken from one, though if one sells the latter to a buyer who is able to take it back from the third party, the sale is valid; while if the buyer is unable to take it from him, then the buyer has the option to either declare the sale binding or cancel it.

It is invalid to transact a particular half of a whole object such as a vessel, sword, or garment (O: since the buyer cannot take possession of that part without breaking or cutting the article, involving the lessening and loss of property), or part of anything whose value is diminished by cutting or breaking, though if it does not diminish its value, as with a bolt of heavy cloth, such portions may be sold.

LAWFUL DISPOSAL OVER THE PROPERTY

k2.5 It is not valid for the owner of an article that has been put up as collateral (def:k11) to sell it without the permission of the person to whom the collateral has been given.

Nor is it valid to sell property belonging to another, unless the seller is the owner's guardian (def: k13.2) or authorized representative (def: k17).

BEING DETERMINATELY KNOWN

k2.6 It is not valid to sell property not determinately identified such as "one of these two garments" (O: since "one of them" is not an identification. Likewise with saying, "I sell you one of these sheep." It makes no difference whether all the objects are of equal or unequal value).

It is not valid to transact a particular thing that is not in view (O: meaning that it has not been seen by both buyer and seller or by one of them) such as saying, "I sell you the Mervian robe I have up my sleeve," or "the black horse that is in my stable." But if the buyer has seen it before and the article is something that does not generally change within the time that has elapsed since it was last seen, then such sales are valid.

It is permissible to sell something like a pile of wheat that is in plain view when its weight is unknown, or to sell something for a heap of silver that is visible when the silver's weight is unknown, for seeing is sufficient.

The selling and buying of a blind person are not valid. He must commission another to buy and sell for him (A: though the Hanafi, Maliki, and Hanabali schools permit him to buy and sell for himself). It is valid for a blind person to buy in advance (def:k9) or for another to buy in advance from him, provided the payment is forwarded to and held by the person being bought from in advance.

k3.0 USURIOUS GAIN (RIBA)

(O: The word riba lexically means increment. In Sacred Law it is (N: of two types, the first being usurious gain (riba) in selling, which is) an agreement for a specific recompense whose equivalence to the merchandise is unknown (def: k3.1 (a)) according to the standards of the Law at the time of the transaction, or in which the exchange of the two properties transacted is delayed, or one of them is delayed. (N: The second type concerns loans, and consists of any loan by which the lender obtains some benefit (dis: k10.5).) The basis for its unlawfulness, prior to scholarly consensus (ijma', def:b7), is such Koranic verses as:

"Allah permits trade but forbids usurious gain:" (Koran 2:275),

and,

"Fear Allah and relinquish what remains of usury, if you are believers" (Koran 2:278),

and such hadiths as that related by Muslim,

"The Messenger of Allah (Allah bless him and give him peace) cursed whoever eats of usurious gain (riba), feeds another with it, writes an agreement involving it, or acts as a witness to it."

Another hadith, in al-Mustadrak (n:by Hakim), relates that the Prophet (Allah bless him and give him peace) said,

"Usurious gain is of seventy kinds, the least of which is as bad as a man marrying his mother.")

(n:w43 discusses taking interest in enemy lands (dar al-harb).)

USURIOUS GAIN IN SALES OF FOODSTUFFS, GOLD, AND SILVER

k3.1 Gain is not unlawful except in certain exchanges involving (O: human) foodstuffs, gold, and silver (A: or other money) (N: which is the ruling for usurious gain in sales. As for usurious gain or interest from loans, it is unlawful for any type of property whatever). The determining factor in the prohibition of usurious gain in foodstuffs is their being edible, and in gold and silver, their being the value of things.

When a foodstuff is sold for a foodstuff of the same kind, such as wheat exchanged for wheat (O: or the gold is traded for gold). three conditions are obligatory:

1. exact equivalence in amount (def: k3.5) (O: which must be made certain of, this stipulation precluding exchanges of foodstuffs, gold, or silver in which the amounts are not known, for such sales are not valid even if the two quantities transacted subsequently turn out to be equal, because of the ignorance of their equivalence at the time of the transaction, since ignorance of it is the same as actual nonequivalence);
2. that the properties transacted be in the respective possession of buyer and seller before they part company;
3. and immediacy (N: such that the agreement does not mention any delay in the exchange, even if brief).

k3.2 When foodstuffs are sold for foodstuffs of a different kind, such as wheat for barely (O: or when gold is sold for silver), only two conditions are obligatory:

1. that the exchange be immediate;
2. and that the properties exchanged be in the respective possession of buyer and seller before they part company.

If these two conditions are met, the two commodities exchanged may differ in amount.

TRANSACTING GOLD AND SILVER

k3.3 When gold is exchanged for gold, or silver for silver, conditions k3.1 (a,b,c) are obligatory. If gold is exchanged for silver, their amounts may differ, but conditions k3.2(a.b) are obligatory.

k3.4 When foodstuffs are sold for gold or silver, the transaction is unconditionally valid (O: meaning none of the above conditions are necessary).

k3.5 Equivalence in amount for commodities customarily sold by volume is reckoned according to volume (O: even if weights differ), and for articles customarily sold by weight according to weight. Thus, it is invalid to sell a pound of wheat for a pound of wheat when there is a difference between the two's volume, though it is valid to sell a bushel of wheat for a bushel of wheat even when their weights differ.

Customarily transacted by weight or volume means according to the prevalent custom in the Hijaz during the time of the Messenger of Allah (Allah bless him and give him peace). If this is unknown, then according to the custom of the town where the transaction takes place. If the foodstuff is of a kind not customarily exchanged by either weight or volume, and it has no dried strong state, such as cucumbers, quinces, or citrons, then it may not be traded for its own sort.

Equivalence in amount is not applicable to foodstuffs until they are completed, meaning, for fruits, in the dried storage state. It is invalid to trade fresh dates for fresh dates for dried dates, fresh grapes for fresh dates, fresh dates for dried or fresh grapes for raisins. Types of dates and grapes not sold as dried dates and raisins may not be exchanged for their own sort. it is also invalid A: because of ignorance of their equivalence) to exchange:

1. flour for flour (O: when they are of the same type);
2. flour for wheat;
3. bread for bread (O: when of the same type);
4. a pure foodstuff for a mixed one;
5. cooked food for uncooked, or cooked food for other cooked food, unless the cooking is very slight, such as separating honey (O: from the comb) or milkfat (O: from milk).

It is not permissible to exchange (N: for example) a measure of dates plus one dirham for two dirhams, or for two measures of dates, or for a measure of dates and a dirham. Nor is it permissible to exchange a measure of dates and a garment for two measures, nor a dirham and a garment for two dirhams.

It is invalid to transact meat for a live animal (O: even when the two are not of the same kind of animal).

k4.0 SOME PROHIBITED KINDS OF TRANSACTIONS

(O: Prohibited transactions may be invalid, as is usually the case with the prohibited, for prohibition generally entails invalidity; or not, such that the transaction is valid despite being prohibited (dis:c5.2).)

SELLING THE OFFSPRING OF EXPECTED OFFSPRING

k4.1 It is invalid to sell the offspring of (A: expected) offspring, such as saying, "When my she-camel gives birth, and her offspring in turn gives birth to a camel, I hereby sell you that camel" (O: i.e. the offspring of the offspring. The reason for invalidity is that it is a transaction of an article that is not owned, known, or deliverable). Nor is it valid to sell something for a price whose payment is deferred to a time similar to the above (O: that is, till the time the offspring of an offspring is born, because the date of payment is not known).

EITHER-OR SALES

k4.2 It is invalid to make a transaction whose terms include two different possible deals (A: without specifying which has been agreed upon) such as saying, "I sell you this for either one thousand in case or two thousand in deferred payment" (O: which is invalid because the price is not known), or such as saying, "I sell you my robe for a thousand, provided you sell me your sword for five hundred" (O: which is invalid because of the invalid stipulation (dis: below)).

SALES WITH EXTRANEOUS STIPULATIONS

k4.3 It is not valid to make a transaction that includes an invalid stipulation (A: such as a condition that is extraneous to the original agreement which adds to its price) (O: because the Prophet (Allah bless him and give him peace) forbade transactions with such conditions, like stipulating a loan or a second transaction), saying for example, "I hereby sell it to you (n: for a thousand) provided you loan me a hundred" (O: or "provided you sell me your house for such and such a price" (A: or "Provided you do not sell it to So-and-so"). It invalidity is due to considering both as the price. Stipulating this invalidates the transaction, and paying this "price" is void, it not being determinately known (def: k2.1(e))). (A: The invalidating factor is stipulating a second transaction, not the mere fact that it accompanies the first transaction, for it is permissible to join two transactions, as discussed at k4.12 below.)

SALES WITH VALID STIPULATIONS

k4.4 The following types of conditions do not invalidate transactions that stipulate them:

1. a condition to postpone payment, though this requires that the date of payment be specified;
2. a condition that collateral (def: k11) be put up as security (N: for payment of the price or for delivery of the merchandise);
3. a condition that a particular individual will guarantee (def: k15) payment;
4. or other conditions (O: from the seller, the buyer, or both) that the deal requires, such as an option to return the merchandise if defective, and so forth.

It is valid for the seller to stipulate that he is free of responsibility for defects in the merchandise. By doing so, he is not held responsible for an animal's internal defects which he does not know of, though he remains responsible for all other kinds of defects. (O: The conditions for this ruling are that the defect be internal, be found in an animal, be unknown to the seller, and that it exist at the time of the agreement.)

PAYING NONREFUNDABLE DEPOSITS

k4.5 It is not valid to pay a nonrefundable deposit towards the price of an article, such as paying a dirham for piece of merchandise on the basis that if the buyer decides to keep it, the dirham is part of the price, but if he does not, then the seller keeps the dirham for free.

(A: The school of Imam Ahmad permits non refundable deposits.)

UNDERCUTTING ANOTHER'S DEAL

k4.7 It is unlawful to undercut a brother's deal (A: or a non-Muslim's, since there is no difference between Muslims and non-Muslims in rulings concerning commercial dealings) that he has made with a customer, after they have settled on the price excludes someone going around taking bids from those who are increasing them, as auctioneers do, which is not unlawful).

It is also unlawful to undercut a brother's price (O: that is, during the option to cancel at the time of the agreement (def: k1.3), or during a stipulated option to cancel period (def: k1.4)) by telling the buyer, "Cancel the deal and I'll sell you one cheaper." (O: This also hols for other contracts, such as renting or lending the use of something.)

BIDDING UP MERCHANDISE

k4.8 It is unlawful to bid up the price of a piece of merchandise that one is not really interested in, to fool another bidder.

SELLING GRAPES TO A WINEMAKER

k4.9 It is unlawful to sell grapes to someone who will make wine from them. (O: Like grapes in this is the sale of dates, bread, wheat, or barley, whenever one knows that this (A: i.e. alcoholic drink) will result, or thinks it will. If there is doubt or if one merely imagines it, then the transaction is merely offensive. (N: Think (zann) means to believe it probable, doubt (shakk) means one is undecided, and imagine (wahm) means to merely consider it possible.) Selling in such cases is unlawful or offensive because it is a means to disobedience, whether certain or suspected (A: means meaning an instrumental cause, as opposed to something which is not instrumental, such as renting a house to a drunkard, which is not unlawful because it is not a cause, though it is unlawful to rent a building to someone who intends to open a bar, for example). Tirmidhi relates that the Prophet (Allah bless him and give him peace) cursed whoever drinks wine, gives it to others to drink, sells it, buys it, presses it for another, transports it, receives it, or eats its price.)

k4.10 If one makes any of the above unlawful transactions (k4.6-9), the agreement is valid (dis: c5.2)

A VALID SALE COMBINED WITH AN INVALID SALE

k4.11 If one combines something valid to sell with something invalid to sell in one transaction, such as selling one's own garment together with someone else's without his permission, or such as selling wine and vinegar, then the transaction is valid for the portion of the price that covers the valid sale (O: no matter whether the person knew what the case was, or whether he did not and believed the sale permissible, thinking at the time, e.g. that the wine was vinegar) and is invalid for the portion of the price that was not valid (A: and the portion must be refunded to the buyer). The buyer has the option to cancel the whole agreement if, at the time the deal was made, he did not know it included something inpermissible.

JOINING TWO TYPES OF TRANSACTIONS IN ONE CONTRACT

k4.12 It is valid to join two contracts of different kinds (O: for example, a sale with a rent agreement) such as saying, "I sell you my horse and rent you my house for a year for such and such an amount" (O: though it is not necessary that they be different kinds, for the ruling also applies to two contracts of the same type, such as a partnership (def: k16) linked with financing a profitsharing venture (qirad, def: k22)), or such as saying, "I marry you my daughter and sell you her house (N: as her proxy, the proceeds being hers) for so-and-so much," and the price is considered as proportionately distributed over the two transactions.

k5.0 THE RETURN OF MERCHANDISE BECAUSE OF A DEFECT

(O: The criterion for defect is based on something that is expected to exist (n in merchandise), whether this expectation results from:

1. stipulations agreed upon (dis: k4.4(4));
2. the customary level of quality (dis: f4.5) for merchandise of its type;
3. or outright deception by the seller.

The author does not mention (1) in this section, but confines himself to (2) and (3).)

INFORMING A PROSPECTIVE BUYER OF DEFECTS IN MERCHANDISE

k5.1 Whoever knows of a defect in the article (O: he is selling) is obliged to disclose it. If he does not, he has cheated (O: the buyer, which is prohibited by the Prophet's statement (Allah bless him and give him peace),:

He who cheats us is not one of us"),

though the transaction is valid (A: provided the buyer accepts it, as discussed below).

RETURNING DEFECTIVE MERCHANDISE

k5.2 When a buyer notices a defect in the merchandise that existed when the seller had it, he is entitled to return it (O: though if he is content to accept the defect, he does not have to return it. He may also return it when the defect occurred after the sale but before the merchandise was delivered, since the merchandise is the seller's responsibility during this period).

k5.3 The criterion (O: of defectiveness) is:

1. any flaw that diminishes the article or its value to a degree that hinders a valid purpose;
2. provided that such an imperfection does not usually exist in similar merchandise.

(O: The former restriction excludes such things as amputation of a surplus digit or a minor nick from the animal's thigh or hock that is inconsequential and does not obviate its purpose, in which case there is not option to return it. The latter restriction excludes defects not generally absent in similar merchandise, such as missing teeth in older animals. There is no option to return such merchandise, even if the value is diminished.)

k5.4 If the buyer notices a defect in the merchandise after it has been destroyed (O: whether physically, such as an animal being killed, a garment worn out, or food eaten; or whether legally finished, by being no longer permissible to transfer from person to person, as when a site has been made an endowment (waqf, def: k30))- then a compensation (A: from the seller to the buyer) is obligatory. (O: The buyer is entitled to it because of the impossibility of returning the article due to its no longer exiting. Compensation means a part of the article's price whose relation to the whole price is the same as the relation of the value which the defect diminished to the full value of the article if it had been without defect. (N: The difference between price and value is that the value is how much money an article is worth in the marketplace, while the price is whatever the sale agreement specifies, whether this be more or less than the value.) The value in such a case is fixed at the lowest value (A: for articles of its type current in the marketplace) between the time the deal was made and the time the buyer took possession of it.)

The buyer is no longer entitled to seek compensation for such a defect it (O: he notices the defect after) he no longer owns the article because of having sold it or otherwise disposed of it. But if such an article returns to the buyer's possesion after this (O: i.e. after having left his ownership, whether as a gift, or returned (A: from a subsequent buyer) because it was defective, or because of a cancelled deal, or he buys it back), then he is entitled to return it (A: to the person who originally sold it to him).

k5.5 If an additional defect occurs in an article (O: other than the above-mentioned defect (A: that existed before the buyer received the article)) while it is in the buyer's possession, then the buyer is only entitled to take a compensation (O: from the seller, to compensator for the original defect) and is not entitled to (A: insist that the seller accept) return (A: of the article for a full refund).

But if the original seller is willing to accept it back with the (O: new) defect, (A: refunding the original price,) then the buyers is not entitled to (A: keep the article and) demand compensation (O: for the original defect. Rather, the buyer is told, "Either return it, or else be content with it as it is and you get nothing,"; for the harm to the original seller which is what prevents (A: it being obligatory for him to accept) its return no longer exists if the seller is content to take it back, and the merchandise is as if the additional defect never occurred.

Their agreement is implemented if buyer and seller agree upon:

1. the seller taking it back with (A: the seller refunding the original price, and the buyer giving him) compensation for the new additional defect;
2. or the buyer keeping the merchandise, and the seller paying him compensation for the original defect;

since either of these options might satisfy the interests of the two parties. If the buyer and seller disagree about which of these two options should be implemented, the decision goes to whichever of them requests option (2), whether this person is the buyer or the seller, since it confirms the original contract).

k5.6 If the new defect which occurs while the article is in the buyer's possession is the sole means of disclosing the old defect, such as breaking open a (A: spoiled) watermelon or eggs, and so forth, then the new defect does not prevent (A: the obligation of the seller to accept) its return. But if the new damage exceeds the extent that was necessary to reveal the original defect, then the seller is no longer compelled to accept it back.

k5.7 It is a necessary condition for (A: cases where the buyer seeks a refund for something he is) returning (O: because of a defect) that the buyer return it immediately upon noticing the defect (O: and his option to return it is cancelled if he delays without an excuse). On his way back to the seller, he should have two witnesses affirm that he is cancelling the agreement (A: so if the seller is unavailable at the time, the buyer is nevertheless able to prove that he went to return it immediately). If the defect is noticed while one is praying, eating, using the lavatory, or at night (A: if the night presents a problem in returning it), then one is entitled to delay returning it until the hindrance preventing one from doing so is no longer present, provided one stops using and benefiting from it. If the buyer delays returning it when capable of doing so, then the seller is no longer obliged to accept the article back for a refund, or no longer obliged (A: in cases like k5.5 above) to compensate the buyer for the original defect (O: because the delay gives the impression that the buyer is satisfied with the defect).

k5.9 (A: The term murabaha applies to sales where the seller states the price in terms of "the original price plus such and such an amount as profit," whether by original price he means the amount he originally paid for the whole lot, or whether he means the proportion of that price represented by the percentage of the lot which he is now selling.)

The seller in murabaha (O: meaning an agreement where the price consists of the original price plus increment) is obliged to inform the buyer of any defect that occurred in the merchandise while in his possession, such as by saying, "I bought it for ten (O: or "bought it for one hundred and sell it to you at what I bought it for, plus one dirham's profit on every ten") but such and such a defect happened to it while I had it." (O: He is likewise obliged to say, for example, "Such and such a defect appeared in it that was from the previous owner, and I accepted this.")

The seller in murabaha is also obliged to explain how much time he was given to pay the original price (A: since deferring payment generally raises the price, and merely stating such a raised price without mentioning that it was deferred would give the new buyer a false impression).

(O: The author should have mentioned (A: that telling the prospective buyer the above information is also obligatory in sales of) discount (A: on a lot of goods or portion thereof), as when the seller tells someone, "I sell it to you for what I bought it for, minus one from every eleven." These relings likewise apply to agreements stated in terms of, "I sell you it at the same price the original deal was made for.")

k6.0 SELLING FRUIT AND CROPS

k6.1 It is not permissible (O: or valid) to sell the fruit alone from a tree (A: without the tree, while still on it) before it is ripe, unless the agreement stipulates immediate picking of the fruit. But such a sale is valid without restriction if made after the fruit is ripe, meaning, for fruits that do not change color, to become fit to eat; and for fruits whose color changes, to start to turn the color of ripeness.

If both the tree and the fruit are sold together, the sale is permissible without stipulating that the fruit be picked.

k6.2 Grain, when green, is subject to the same rulings as fruit before it is ripe: it may not be sold (O: nor would the sale be valid) unless the agreement stipulates immediate harvest, though there are no restrictions on sales made after the grain is sold and firm.

k6.3 It is not permissible to sell grain when still in the husk, or to sell unripe nuts, almonds, or broadeans when these are in the shell. (A: When the latter three are dried, they may be sold in the shell.)

k7.0 MERCHANDISE BEFORE THE BUYER TAKES POSSESSION OF IT

k7.1 Merchandise is the responsibility of the seller before the buyer has taken possession (def: k7.3) of it. If such merchandise is destroyed (Ar. talifa, to be finished off or used up) by itself or through an act of the seller, then the agreement is cancelled and no payment is due for it. If the buyer destroyes such merchandise, he must pay it sprice, and his destroying it is considered as having taken possession of it. If a third party destroyes such merchandise, the deal is not cancelled but rather the buyer is given a choice to either:

1. cancel the agreement and make the value (def: k5.4(N:)) (O: of what the third party destroyed) a debt that the third party owes to the seller;
2. or effect the deal, paying the seller the price (O: if he agrees to effect the deal) and making the third party liable to pay the value (O: to the buyer).

k7.2 When one buys something, it is not permissible (O: or valid) to sell it until one has taken possession of it. (O: The invalidity of selling it likewise applies to all transactions disposing of it (A: such as renting it, giving it away, and so forth).

It is also invalid for the seller to dispose of the price in any way before it has been received from the buyer, unless the new transaction is with the same buyer and involves the very same (A: article that is the) price.)

But if the price is a financial obligation (N: that is, an amount of money, unspecified as to which particular pieces of money it is), the seller may ask for a different sort of payment, provided he has not already accepted the payment, as when he sells something for dirhams, but then accepts gold, a garment, or something else instead of them.

k7.3 Taking possession means:

1. for transportable things such as wheat or barley, that they be transported (N: by the buyer or his representative) (O: that is, when he moves the merchandise to a place not belonging to the seller, such as the street or the buyer's house);
2. for things dealt with by hand, such as a garment or book, that they be taken in hand;
3. and for other things, such as a house or land, that they be given over (O: i.e. the seller give the buyer control over them, such as by handing the key to him or moving others' belongings off the property).

k8.0 DISPUTES OVER WHAT THE TERMS OF A TRANSACTION WERE

k8.1 When two parties agree on the validity of a transaction but disagree on its terms, and there is no proof, then they each swear an oath (dis: k8.2) affirming their side of the story. Such a disagreement could be:

1. the seller saying that he sold it for immediate payment, while the buyer asserts that payment was to be deferred;
2. the seller stating that he sold for ten, while the buyer maintains it was five;
3. the seller saying he sold it to the buyer on condition that there be an option to cancel period (def: k1.4), while the buyer asserts that no such option was stipulated:

or similar disputes.

k8.2 (N: Swearing an oath (def:o18) is a means for urging one's case when there is no proof, meaning no witnesses. When rulings mention, for example, that "So-and-so's word is believed," or "So-and-so's word is accepted," it means that his word is accepted when he swears an oath in cases where there is no proof presented by either of the two pairs. If there is proof, whether from the plaintiff or defendant, it is given precedence over an oath.)

k8.3 In the oath for such cases, the seller swears first, saying, for example, "By Allah, I did not sell it to you for such and such an amount, but rather for such and such an amount." Then the buyer swears, "By Allah, I did not buy it for such and such, but rather bought it for such and such." It consists of one oath (A: from each party) which joins the denial of the other's claim with the affirmation of one's own claim, and in which the dential is recommended to precede the affirmation.

k8.4 When the buyer and seller have sworn, but subsequently reach a solution that both accept, the agreement is not cancelled. But if they cannot reach an accord, they cancel the agreement, or one of them cancels, it, or the Islamic magistrate does (O: to end the trouble between them. When the agreement is cancelled, each returns whatever he has accepted from the other).

k8.5 If either the buyer or seller testifies that a particular agreement is invalid, but the other party says it is valid, then the word of whichever of them asserts it is valid is accepted if he swears an oath (dis: k8.2).

It the buyer comes to the seller with a piece of merchandise, that he wants to return because of a defect, but the seller says that it is not the one he sold him, then the seller's word is accepted (O: when he swears).

If the buyers and seller disagree about a defect in an article that could have occurred while it was in the buyer's possession, but each party asserts that the defect occurred while in the other's possession, then the seller's word is accepted (O: when he swears).

k9.0 BUYING IN ADVANCE (SALAM)

k9.1 Buying in advance means the sale of described merchandise which is under (A: the seller's) obligation (A: to deliver to the buyer at a certain time).

THE CONDITIONS FOR THE VALIDITY OF BUYING IN ADVANCE

k9.2 In addition to the conditions for valid sales (def: k1.1-2, k2.1), other conditions (O: seven of them) must be met for buying in advance to be valid:

1. that the price of the merchandise be received when the agreement is first made. It is sufficient to merely see the price that is being accepted, even when its exact amount is unknown;
2. that the merchandise bought in advance be a financial obligation (dayn) (O: owed by the seller (N: meaning that buying in advance is not valid for particular individual articles ('ayn) (A: i.e "this one" and no other)) which the seller will deliver when its time comes). Its delivery may be due from the present onwards, or may be due later through deferment (O: by clearly stating whether it is to be due immediately or deferred) to a specific date (O: which specificity is a necessary condition for the validity of differing payment). It is not permissible to say, "I advance you these dirhams for that particular horse" (O: which is invalid because of the condition that the merchandise bought in advance be a financial obligation (dayn), which the above-mentioned horse is not, but is rather a particular individual article ('ayn));
3. that the location to which the merchandise is to be delivered be clearly stipulated (A: though this is only a condition) in cases in which the buyer pays for it at a place where it cannot be delivered, such as the wilderness; or to which the merchandise can be delivered, but transporting it there involves considerable difficulty;
4. that the merchandise bought in advance be determinately known by volume, weight, quantity, or yardage in terms of a familiar measure. It is not valid for someone to say "the weight of this stone," or "the capacity of this basket," if the (O: stone's) weight or basket's capacity is not known;
5. that the merchandise be within the seller's power to deliver (def: k2.4) when the time for delivery arrives;
6. that the merchandise not be generally subject to unavailability. If it is something rare (O: such as a great quantity of the season's first fruits of a particular kind of produce) or something not typically safe from unavailability, such as "the fruit of this particular date palm," then its sale in advance is not permissible;
7. that those characteristics of the merchandise over which the buyer and seller might be at cross- purposes be expressly delineated by clear specifications. It is not permissible (O: to buy things in advance which cannot be defined by clear criteria, such as) for jewels or composites like meat pastry (O: composed of wheat, meat, and water, all of which are expected but not delineable in terms of minimal or maximal amounts), ghaliya perfume (O: composed of musk, ambergris, aloes, and comphor), or slippers (O: composed of outer and inner layers and padding), nor articles whose top randomly differs from their bottom, like a lamp or pitcher (O: the top of which is sometimes wider than the bottom, or vice versa) (N: though the Hanafi school permits such agreements, calling them made to order (istisna'), which they hold includes whatever is customarily bought in this way. They affirm the buyer's option to cancel the agreement when he see the merchandise, and it is obligatory that the article be described very precisely), nor something substantially processed and altered by fire (A: meaning heart), such as bread or roast meat, since describing it (A: i.e. how much cooking it takes) is impossible in a precise way.

k9.3 It is not permissible for the buyer to sell something he has bought in advance until he has received it.

k9.4 It is not permissible to take some other type of merchandise in place of the article bought in advance (A: that is, when the buyer demands the substitute before the delivery of the original is due, though they may agree on it after that).

If the seller delivers the merchandise specified, or better (O: than what was specified), the buyer must accept it (O: since it is apparent that the seller could not find a way to fulfill his obligation save through this means. If the seller delivers merchandise that is inferior to what was specified, then the buyer may accept it, as this is voluntarily refraining from demanding his due, but he is not obliged to, because of the loss therein).

k10.0 PERSONAL LOANS (QARD)

(A: A Loan means repayable financial aid. It does not refer to lending a particular article ('ayn) for someone to use and then return after use, which is termed an 'ariyya (def: k19).)

k10.1 Loaning (O: meaning to give something to the borrower on the basis that he will return its equal) is recommended.

k10.2 A loan is effected through a spoken offer and acceptance (def:k1.1), such as saying, "I loan you this," or, "I advance you it."

k10.3 It is permissible to give as a personal loan any article that may be brought in advance (def: k9.2 (b,d,e,f,g)) and nothing else (A: though this restriction does not apply to lending for use ('ariyya, dis: k10.0 (A:))).

k10.4 It is not permissible for the lender to impose as a condition that the loan be repaid on a certain date (N: though for the Maliki school, to stipulate that repayment is obligatory on a certain date is valid and legally binding).

k10.5 It is not permissible for the lender to impose some condition that will enable him to benefit from the loan, such as a condition that the borrower must return superior to what was loaned, or such as saying, "on condition that you sell me your horse for such and such an amount," for these are usurious gain (riba). But it is permissible for the borrowers to return superior to what was loaned without this having been stipulated.

k10.6 It is permissible for the loan agreement to include the condition of collateral (O: meaning for the recipient to give the lender something as collateral (def: k11) for what he borrows) or the condition of a guarantor (O: such that the recipient brings someone to guarantee that the loan will be repaid (def: k15)).

k10.7 The recipient of a loan is obliged to repay the equal of what was lent, though it is permissible for the lender to accept something other than the (A: type of) thing loaned. If the lender gives the recipient a loan and later meets him in another town and asks for it back, the recipient must repay it if it was gold or silver and the like, though if the loaned commodity was something troublesome to carry, such as wheat or barley, then the recipient is not obliged to pay it back (A: in kind) but is merely obliged to pay back its value.

k11.0 PUTTING UP COLLATERAL (RAHN)

(O: In Sacred Law collateral is a piece of saleable property put up as security for a financial obligation to cover the amount if it should prove impossible to repay.)

CONDITIONS FOR THE VALIDITY OF PUTTING UP COLLATERAL

k11.1 Putting up collateral is only valid when done by someone with full disposal over his own property, as security for a financial obligation (dayn, dis: k9.2(b)) that is currently due, such as the price (O: due for merchandise after its delivery), or a personal loan, or for a financial obligation that is currently becoming due (N: such as something's price) during the option to cancel period (def: k1.4). (O: The collateral's being security for a financial obligation is one restriction on its validity, and for one that is currently due is another. It is not valid to put up collateral for a particular individual article ('ayn) or the use of an article, since (A: the obligation to deliver) a particular article is not a financial obligation (dayn), as the selfsame article cannot be obtained by selling the collateral.)

Putting up collateral is not valid in cases in which the financial obligation is not yet due, such as collateral accepted (O: by a lender) as security for a loan that he will make (O: in the further).

It is necessary (O: for the validity of putting up collateral) that there be a spoken offer (O: by the person putting up the collateral) and spoken acceptance (O: from the person accepting it, just as it is necessary for sales, the conditions mentioned in connection with sales (k1.1) applying equally here).

The agreement is not legally binding until the collateral has been taken possession of with the permission of the person putting it up, who is entitled to cancel the agreement (A: at any point) before the collateral has been taken possession of (def: k7.3).

When the agreement has been effected, if the two parties (A: the collateral's giver and receiver) agree that the collateral should be dept with either of them, or with a third party, this is done. If not (O: if they do not agree), the Islamic magistrate has it kept with an upright person (def: o24.4) (O: to end the disagreement. But the magistrate is not entitled to place it with either of the two parties without the other's permission).

GENERAL PROVISIONS CONCERNING COLLATERAL

k11.2 The collateral must be an article that is permissible to sell (def: k2.1).

None of the collateral may be separated from the rest of it until the financial obligation has been entirely paid off.

The person who put up the collateral is not entitled to dispose of it in any way which infringes upon the right of the person who has received it as collateral (O: such as transferring its ownership to another) by selling it or giving it away (O: or putting it up as collateral for another person), or to dispose of it in any way that diminishes its value, such as wearing (O: a garment put up that would depreciate by being worn), though he may use it in ways that do not harm (O: the interests of the person who has received it) such as riding it, or living (O: in a house that has been put up as collateral).

k11.3 An article put up as collateral for a financial obligation may not (A: at the same time) be put up as collateral for a second financial obligation, even when the second obligation is with the same person who has accepted the article (A: for the first one).

k11.4 The expenses for maintaining an article put up as collateral (O: such as fodder for livestock, or the wages of a person watering trees) are the responsibility of the person who put it up, and he may be compelled to pay them to protect the rights of the person receiving it (O: lest it be destroyed). The person who put it up is entitled to the increments produced by it (O: that are separable from it) such as milk or fruit.

k11.5 If the article is destroyed while in the possession of the person who received it as collateral without negligence on his part (A: meaning he took the precautions normal for similar articles), then he is not obliged to pay anything for its loss. But if destroyed because of his negligence, then he is obliged to pay the article's value to the person who put it up though its destruction does not eliminate any of the original financial obligation for which the destroyed collateral was put up. (O: When the collateral has been destroyed and the two parties are at a disagreement,) the final word as to how much the article was worth (A: when there is no proof (dis; k8.2)) belongs to the person who received it as collateral (O: provided he swears an oath as to how uchit was). But the final word as to whether the collateral has been returned (A: to its owner after his financial obligation has been paid) belongs to the person who put it up (A: when there is no proof, and he swears).

k11.6 The benefit of collateral is that the article is sold (A: by the person who put it up) when there is need to pay the amount which is due. If the person who put it up refuses (O: to sell the article when the person who has received it as collateral asks him to), then the Islamic magistrate has him either pay the original obligation or else sell the article. (O: He is given a choice between the two alternatives.) If he continues to refuse (O: to sell), then the Islamic magistrate sells it for him. (O: If the person who put it up is absent, then this is established by proof to the magistrate, who sells it for him and gives the person who accepted the collateral his due. If there is no Islamic magistrate and no proof (A: that there is a financial obligation for which the collateral has been put up), then the person who accepted it as collateral is entitled to sell it himself.)

k12.0 BANKRUPTCY (TAFLIS)

(O: Bankruptcy occurs when the Islamic magistrate makes a debtor bankrupt by (N: declaring him so and) forbidding him to dispose of his property (N: such that if he disposes of is, his disposition is not effected).)

k12.1 When someone obliged to pay a current debt is being asked to pay it, and he claims that he is unable to (O: while his creditors deny this), then if it is known that he has saleable property, he is kept under arrest until he provides evidence that he cannot pay. If no (O: i.e. if it is not known that he has saleable property), then he swears an oath (O: that there is no property), and (O: when it is established that he is unable to pay, whether through evidence, or though his oath) he is released (O: and given time) until his circumstances allow him to pay (O: and his creditors may not keep after him, because of Allah's word,

"If there be someone in difficulties, let him have respote until things are easier" (Koran 2:280)).

k12.2 But if he has saleable property (O: such as real estate, home furnishings, or livestock) and refuses to pay his debt, then the Islamic magistrate sells it for him and pays his debt. If the proceeds of the sale are insufficeient to cover the debt, and he or his creditor asks the magistrate that he be suspended from dealing in his property, then this is done (O: obligatorily, if requested). When the person is suspended, his disposal over his own saleable property is not legally binding or effective, and the magistrate pays the person's expenses and those of his family (O: whom he is obliged to support (def: m12.1)) out of this (O: suspended) property if he is unable to earn enough to pay his expenses.

Then (O: after the person has been suspended) the magistrate sells the property in the most profitable manner and divides the proceeds according to the percentage of the total debt which is owed to each creditor.

k12.3 If one of the creditors is owed money on a debt which is not yet due, he is not entitled to be paid from the proceeds. (N: Rather, if the bankrupt does not agree to pay the person immediately, the magistrate keeps this person's share until the debt is due (A: and then pays him).)

k12.4 If one of the creditors has accepted an article of the bankrupt's property as collateral from him for a debt, he is paid the amount owed to him from the sale of the collateral (O: and if there is money from its sale in excess of what was owed to him, it is distributed among the other creditors).

k12.5 If one of the creditors finds the very piece of merchandise he sold to the bankrupt person, he may choose between selling it and dividing the profits with the other creditors, or cancelling the deal and taking back the piece of merchandise, provided there is nothing to prevent taking it back such as it being subject to preemption by a part owner (shuf'a, def: k21), or the bankrupt person having made it collateral to another person, or the merchandise's being mixed with merchandise better than it, or some similar objection.

k12.6 The bankrupt person is permitted to keep a suitable set of clothes and enough food for himself and his dependents to suffice for the day on which his saleable property is divided up. (N: If the bankrupt is then earning enough to suffice himself and his dependents, he is left as is. If not, then he is supported by the Muslim common fund (bayt al-mal), like all poor people. If there is no common fund, he must be supported by all the Muslims.)

k13.0 THE SUSPENSION OF CHILDREN AND THE INSANE FROM DEALINGS

(O: Suspension is of two types:

1. The first has been established in Sacred Law for the interests of others, such as the suspension of a bankrupt person in the interests of his creditors, or the suspension of the person putting up collateral from dealing in it, in the interests of the person who has accepted it.
2. The second has been established in Sacred Law in the interests of the suspended person, which is the type of suspension our author refers to in the following.)

k13.1 It is not permissible for a child or insane person to dispose of their own property (N: and their doing so is considered legally invalid) (O: to protect them from loss. The fact that a person is a child, male or female, even if at the age of discrimination (def:f1.2), negates the legal efficacy of whatever he says, as well as his legal authority over others, both in respect to transactions such as sale, and in respect to religion, such as Islam. His Islam is not valid, since it requires full capacity for legal responsibility (taklif, dis: c8.1). And this state continues until he reaches puberty. Insanity similarly negates the legal efficacy of whatever the insane person says, as well as his legal authority over others. His Islam is not valid, nor his leaving Islam (def: o8), nor are his dealings, as previously mentioned).

(A: Also suspended from commercial dealings is the foolhardy person (safih), meaning a spendthrfit who is chronically careless with his money. In the schools of Shafi'i and Ahmad, this class also includes those who are careless about their religious obligations, as they too are considered too foolish to deal in their own property.)

k13.2 A guardian conducts such a charge's affairs, the guardian being:

1. the charge's father;
2. the father's father, if the father is deceased;
   (O: it is a necessary condition that they be upright (def: o24.4), at least outwardly, though they need not be Muslim unless the child is Muslim)
3. if neither of them is alive, then the person designated by the guardian's will (wasiyya, def: L3) to take custody of the charge;
4. or if no one has been designated by the will. then the Islamic magistrate or his representative.

THE GUARDIAN'S DISPOSAL OF HIS CHARGE'S PROPERTY

k13.3 The guardian deals with the charge's property to the charge's best financial advantage (O: and is entitled to sell it for needs that arise, such as when he does not have enough to cover his charge's expenses and clothing).

k13.4 If the guardian claims to have spent his charge's property to cover the charge's expenses, or claims that the property has been destroyed (O: by an act of God (A: and not through his negligence)), then his word is accepted (O: about it without having to swear an oath). But if the guardian claims to have given the property to the charge (O: i.e. to the child who has reached maturity or the insane person who has regained his sanity), then his word is not accepted (O: because of the ease with which he could have legally established that he gave the property to his charge at the time of doing so. if he did not obtain witnesses to observe the property being handed over, he is guilty of remissness for neglecting to have it witnessed).

k13.5 Suspension from dealings ends (O: without a ruling from the judge) when a child reaches puberty and mental maturity, meaning that he:

1. is physically mature;
2. shows religious sincerity;
3. and is competent to handle his own property.

(O: For an insane person, suspension ends when he regains his sanity, shows religious sincerity, and displays competence in handling his property. Religious sincerity means that a person performs acts of obedience and avoids disobedience and the unlawful. Competence in handling one's property means that one does not waste it by losing it, for example, in buying something outrageously overpriced. Both of these traits ((b) and (c)) are the criteria for maturity according to Imam Shafi'i, as opposed at Abu Hanifa and Malik, who hold that competence in handling property is sufficient.)

k13.6 A charge is not give his property until his competence in handling it has been tested before puberty in a manner appropriate to him. (O: Thus a merchant's son is tried at striking a bargain in dealings, having been given money to do this, though not actually concluding the deal, which is done by the guardian. A farmer's son is tested at agriculture and managing the expenditures connected with it. An examination is also made of the charge's religion, by observing whether he performs acts of worship, avoids acts of disobedience, shuns the unlawful, and is wary of things that are doubtful (dis: j16.1).

It is necessary that this testing be repeated one or more times.)

k13.7 It the suspended person reaches puberty or regains his sanity but is corrupt in his religion or incompetent in financial dealings, then his suspension continues and he is not permitted to deal in his property by selling or anything else, with or without his guardian's permission, though if the guardian permits him to marry, the marriage is valid.

If the suspended person reaches puberty with religious sincerity and financial competence, but subsequently squanders his wealth, then he is resuspended by the Islamic magistrate not the guardian. But if the person becomes morally corrupt (A: after having reached puberty), he is not resuspended (N: provided his corruption does not involve spending money on what is unlawful, though if it does, he is suspended from dealing).

k13.8 Puberty applies to a person after the first wet dream, or upon becoming fifteen (O: lunar) years old, or when a girl has her first menstrual period or pregnancy.

k14.0 TRANSFERRING THE RIGHT TO COLLECT A DEBT (HAWALA)

(O: In Sacred Law, a transfer is an agreement that moves a debt from one person's responsibility to another's.)

(n: Given three persons, X (al-muhtal), Y (al-Muhil), and Z (al-muhal `alayhi) (A: where X loans Y a dirham, and Z already owes Y a dirham, so Y transfers the right to collect the old debt (that Z owes him) to X, instead of repaying X for the new debt. Such transfers have six integrals:

1. Y;
2. X;
3. Z;
4. Y's debt to X;
5. Z's debt to Y;
6. Y's spoken offer and X's spoken acceptance).)

k14.1 It is a necessary condition for the validity of transferring a debt that Y wishes to do so, and that X accepts. It is not necessary that Z wishes it.

(O: The agreement also requires a form, which is the spoken offer and acceptance (def:k1.1), meaning Y's offer and X's acceptance.)

k14.2 Such a transfer is not valid unless z owes Y a debt and Y owes X a debt.

A transfer is valid respecting a legally binding debt (O: owed to X) for another legally binding debt (O: Z owes to Y), provided:

1. that X and Y know what is being transferred (A:gold, silver, or wheat, for example) for what;
2. that X and Y know that the two debts are homogeneous in type (A: such as money for money, or wheat for wheat) and in amount (O: though if Y owes X five, and Z owes Y ten, and Y transfers (A: the right to collect) five of it to X, then this is valid);
3. and that X and Y know whether the debts are currently due or payable in the future (A: the two debts may differ in this respect if both parties agree).

k14.3 (O: The validity of a transfer is not affected by the existence of collateral (def: k11) or of a guarantor (def;k15) as security for one of the debts, but the occurence of the transfer eliminates (A: either form of) security, the guarantor being relieved of any responsibility and the collateral no longer being collateral.)

k14.4 Through a valid transfer, Y no longer owes X a debt, Z no longer owes Y a debt, and the debt owed to X becomes the responsibility of Z. If X is unable to collect the debt from Z because Z is bankrupt or denies the existence of the debt or for some other reason (O: such as Z's death), then X is not entitled to go back to Y (A: to collect it) (N: but rather it is as though X has accepted for the debt a remuneration which was subsequently destroyed in his possession).

k15.0 GUARANTEEING PAYMENT (DAMAN)

(O: Guarantee lexically means ensuring implementation, and in Sacred Law means to ensure a financial obligation which is another's or ensure the appearance of a particular person whose presence is required.)

(n: Given three persons, P (al-madmunlahu), Q (al-madmum 'anhu), and R (al-damin) (A: where P loans Q a dirham, and R guarantees to P that either Q will repay it or else he, R, will repay it. Such guarantees have five integrals:

1. R;
2. P;
3. Q;
4. the debt covered;
5. and the form of the agreement).)

GUARANTEEING ANOTHER'S FINANCIAL OBLIGATION

k15.1 It is necessary condition for the validity of guaranteeing payment that R have full right to manage his own property. It is not valid from a child, someone insane, or a foolhardy person (def: k13.1(A:)), though it is valid from someone suspended for bankruptcy.

k15.2 It is a condition for the validity of a guarantee that R know P, though it is not necessary that P agree to it.

It is not necessary that Q agree, or that R know Q.

k15.3 It is necessary that the guaranteed debt be a financial obligation (dayn, dis: k9.2(b)) that is existent (O: since it is not valid to guarantee a debt before it exists, such as "tomorrow's expenses") and is determinately known (O: in terms of amount, type, and description).

k15.4 It is necessary that R make the guarantee in words (O: or their written equivalent, with the intention) that imply he is effecting it, such as "I guarantee your debt [O: that So-and-so owes you], "I will cover it," or the like. (O: These are explicit expressions in that they mention the guaranteed financial obligation. When it is not mentioned, the expression is allusive, which is valid provided the financial obligation is what is intended, and the speaker knows how much it is Otherwise, allusive expressions are not valid.)

It is not valid to base the implementation of a guarantee on a condition, such as saying, "When Ramadan comes, I hereby guarantee it." (O: Nor is it valid to make it subject to time stipulations, such as saying, "I guarantee what So-and-so owes for one month, after which I no longer guarantee it.")

k15.5 When a seller has accepted the price of something, it is valid (O: for someone) to guarantee the buyer his money back if the merchandise should prove to belong to another or to be defective. (O: It is likewise valid for someone to guarantee to the seller that the merchandise will be returned if the price paid for it should turn out to belong to someone other than the buyer.)

k15.6 P is entitled to collect the guaranteed debt from R and Q (O: by asking both of them or either for the full amount, or one of them for part of it and the other for the rest of it).

If another guarantor guarantees the debt for R (O: by saying (A: to P), "I guarantee Q's debt [A: to you] for R"), then P is entitled to collect it from all (A: from Q,R, and the new guarantor).

k15.7 If P asks for payment from R, then R is entitled to ask Q to pay the debt, provided that Q had given his permission to R before R guaranteed it.

k15.8 If P cancels the debt Q owes him, then R is also free of the obligation to pay P. But if P cancels R's obligation to cover Q's debt, then Q is not thereby free of the debt he owes P.

k15.9 If R pays Q's debt to P, then R can collect it from Q, provided that q had given his permission to R before R guaranteed it. But if Q had not (O: given his permission to R to guarantee), then R is not now entitled to collect it from Q, no matter whether R paid if off with Q's leave or without it.

k15.10 It is not valid to guarantee delivery of particular articles (`ayn) (A: as they are not financial obligations (dis: k9.2(b)), such as something wrongfully taken, or articles loaned for use (O: i.e. "guaranteeing" they will be returned to their owner).

GUARANTEEING ANOTHER'S APPEARANCE

k15.11 It is permissible for R to guarantee that Q will appear in person (O: in court) provided:

1. that Q owes someone something or is liable to punishment for a crime against another person, such as when the other is entitled to retaliate (def: o1-o3) against Q, or when Q has charged someone with adultery without evidence (def:o13);
2. and that Q gives R permission to guarantee his appearance.

It is not valid to gurantee Q's appearance if (non-(a) above) Q's crime is against Allah Most High (O: such as drinking, adultery, or theft).

k15.12 If R guarantees Q's appearance but does not specify when, he is required to produce Q at once. But if R stipules a certain time, then he is required to do so at that time.

If Q disappears and his where abouts is unknown, R is not required to produce Q until he knows where Q is.

(A: When R knows where Q is, then) R is given time to travel to where Q is and return. If R does not bring Q, then R is under arrest, though he is not responsible for Q's (A: unfulfilled) financial obligations.

If Q dies, the guarantee is nullified, though if R is asked to produce Q's body before burial to verify its identity, he is obliged to if able.

k16.0 PARTNERSHIPS (SHARIKA)

k16.1 Partnership is valid with anyone having full right to dispose of his own property.

COOPERATIVE PARTNERSHIP

k16.2 There are four kind of partnership (dis:k16.9) of which one alone, cooperative partnership, is valid. It consists of each of the two (A: or more) partners putting up capital, which must be either money or a fungible commodity typically transacted measure for measure (mithli, def:k20.3(1)) (O: as opposed to goods appraised and sold as particular pieces of merchandise (mutaqawwim), which cannot form the basis of a partnership because it is impossible to mix each partner's share with the other's (dis: below)).

k16.3 It is a condition for the validity of a cooperative partnership that the two shares of capital put up by the partners be inter mixed such that it is impossible to tell them apart.

k16.5 It is a necessary condition that each partner give the other his permission to handle the capital (O: that they have put in common).

Each partner must deal in a a way that realizes their common capital's best advantage and maximal safety. Thus, neither partner may travel with it (O: i.e. the shared capital, because of the danger in travelling) or sell for postponed payment (N: unless the other partner gives him permission, in which case (A:either of) these are permissible).

k16.6 It is not necessary that the two shares of capital put up by the partners be equal in amount.

Both profits and losses are divided between the two partners in proportion to the percentage of the shared capital each of them put up (O: even if there is a difference in the amount of work that each does). If they stipulate otherwise, the partner who put up one hundred, for example gets two-thirds, while the partner who put up two hundred gets one-third; or stipulating that each gets an equal share, despite having put up unequal amounts). (N: This is in the Shafi'i school. The Hanafis and Hanbalis hold that it is permissible for the distribution of profits to be disproportionate (A: to the amount of capital each invests0, corresponding to the disproportionate amount of work each puts into the venture (A: or any other division of the profits which they both agree upon).)

k16.7 If partner A forbids partner B handle the shared capital, then B is not entitled to handle it, though A is still entitled to (O: handle both shares, one of which is his by ownership, and the other by permission of his partner) until B forbids him to handle it.

k16.8 Each partner is entitled to cancel the partnership whenever he wants (O: and it is also cancelled by the death or instanity of either or both partners).

k16.9 The following types of partnerships are not valid:

1. manual partnership (sharika al-abdan), such as the partnership of two porters or other workers agreeing to divide their earnings between them (N: though this type of partnership is valid in the Maliki, Hanbali schools);
2. well-known partner partnership (sharika al-wujuh) (n: such as of two individuals who put up no capital, but have good reputations among people which create confidence and enable them to purchase trade goods for deferred payment, the profits from the sale of which they agree to divide between them (Mughni al-muhtaj ila ma'rifa ma'ani alfaz al-Minhaj (y73), 2.212)).
3. and comprehensive partnership (sharika al-mufawada) (n: an agreement by which the partners share whatever they each earn from their respective (A: separate) funds and labor, mutually covering the financial liabilities incurred by either (Mughni al-muhtaj ila ma'rifa ma'ani alfaz al-Minhaj (y73),2.212)).

k17.0 COMMISSIONING ANOTHER TO DO SOMETHING (WAKALA)

(n: Given persons X (al-muwakkil) and Y (al-wakil) (A: where X and Y article to sell for him. This section deals with commissioning others to carry out such requests, which have four integrals:

1. X;
2. Y;
3. the act that is being commissioned (al-muwakkal fihi);
4. and the words by which X commissions Y to do it).)

k17.1 It is a necessary condition that both X and Y have full right to perform the act being commissioned, though it is permissible to commission a child to let people into one's house or take a gift to someone.

THINGS ONE MAY COMMISSION OTHERS TO DO

k17.2 X may commission Y:

1. to conclude contracts on X's behalf (O: such as a sale, gift, putting up collateral, conducting a marriage contract, guaranteeing payment, or transferring a debt);
2. to cancel contracts on X's behalf (O: such as cancelling a sale or returning defective merchandise);
3. to conduct X's divorce;
4. to make claims (A: by lawsuit against others, as lawyers do);
5. to ensure fulfillment of established claims (O: from whoever owes them to X, after they have been established by proof);
6. or to take possession of something that is free to take, such as wild game, pasturage, or water (O: by Y conveying it from land which X is permitted to take it from, since this is a way of gaining property just as sale is).

k17.3 It is not permissible for Y to undertake obligations of worship that X owes Allah Most High, except for:

1. distributing zakat to deserving recipients (O: or giving food or alms as an expiation, or voluntary charity);
2. performing hajj (O: or 'umra, which another may perform on the behalf of an invalid or a deceased person);
3. and slaughtering sacrifices (dis: j12.6 (end), j14.3).

k17.4 It is permissible to commission Y to perform an obligation (O: to Allah) that consists of inflicting a prescribed legal penalty (hadd) (O: such as the penalties for the crimes of accusing another of adultery without proof (def:o13), adultery, or drinking), but is not permissible to commission Y to establish that such an obligation exists (O: such as by X telling Y, "I commission you to affirm [A: in court, by Y submitting X's testimony] that So-and-so has committed adultery," or "that So-and-so has drunk wine").

k17.5 It is a necessary condition for the validity of X's commissioning Y that there be:

1. a spoken proposal (O: indicating X's wish for Y to handle some matter for him) that does not restrict the (A fact of there being a) commission by giving conditions under which the commission takes effect (O such as saying, "If So-and-so come, I hereby commission must be) such as saying, "I commission you, " or "Sell this garment for me";
2. and an acceptance (O: by Y, whether this be) in word or deed, i.e. by Y simply doing what he has been asked to, it is not necessary that his acceptance take place immediately.

k17.6 When X validity commissions Y to do something, X may include stipulations about how it is to be carried out, such as saying, "I commission you, but don't sell it sell it till after a month." (A: The previous ruling prohibits stipulations restricting the fact of Y being commissioned Y and his stipulations merely govern how Y is to do it.) (O: A temporary commission, such as saying, "I commission you for one month," is also valid.)

k17.7 Y may not commission another to perform what X has commissioned Y to do unless X either gives Y permission to commission another, or Y cannot undertake the task (O: because he is unable to, or it doe not befit him) or it incapable of it because it is too much (A: for a single person to perform).

THE AGENTS DISCRETIONARY POWERS

k17.8 Y is not entitled to sell an article (A: he has been commissioned to sell) to himself or his underage son, nor (O: is it valid) to sell it:

1. for less than the current price of similar articles;
2. for deferred payment;
3. or for other than the type of money used locally;

though Y may do these (O: (1), (2), or (3) if X grants him permission to.

k17.9 Y's sale of the commissioned article is not valid when X specifies the type of funds he wants as its price, but Y sells it for a different type, such a when X says, "Sell it for a thousand dirhams," but Y sells it for a thousand dinars. But Y's selling it is valid if X specifies the amount he wants and Y sells it for more, provided the type of funds is the same, as when X says," Sell it for a thousand, "but Y sells it for two thousand-unless X has specifically prohibited this (O: in which case the sale would not be valid, as it contravenes X's commission).

k17.10 If X commissions Y to "buy such and such a thing for a hundred, "but Y buys one worth a hundred for less than a hundred, then the purchase is valid. But if Y buys one for two hundred that is worth two hundred (A: when X has commissioned him to buy one for a hundred), then the purchase is not valid. If X tells Y, "Buy a sheep with this dinar, "(O: and describes it in type and so forth, since without such a description, the commission would not be valid), but Y buys two sheep (A: with that dinar) of which each one is worth a dinar, then the purchase is valid and both sheep belong to X,though if the sheep are not each worth a dinar, then the purchase is not valid.

k17.11 When X commissions Y to sell something to a particular person, it is not permissible (O: or valid) for Y to sell it to another.

k17.12 When X tells Y, "Buy this [A: particular] garment,"and y buys it and X finds it is defective, then Y may return it for a refund (O: and so may X, since he is its owner). But when X merely tells Y to "buy a garment" (O: without further restriction), then it is not permissible for Y to buy a defective one (O: because the lack of further restrictions is understood to mean being free of defects, and if Y buys a defective one, the purchase is invalid).

k17.13 It is a necessary condition that the thing Y is being commissioned to do is determinately known (O: to X and Y) in some respects. Thus, if X says, "I commission you to sell my property and conduct the divorce of my wives," his commission is valid, though if he merely commission Y to "handle everything large or small," or " all of my affairs, " it is not valid.

k17.14 Y's responsibility in a commission is that of someone who has been given a trust (O: since he represents X, and his possession of the article is like X's). meaning that if (O: X's) property is destroyed without negligence while in Y's possession, Y does not have to pay for it. (O: But when Y is to blame and negligent, a when he uses the article himself or keeps it in a place lacking the normal precautions for safeguarding similar articles, then he must pay for its loss, as with any trust.)

k17.15 Y's word (dis: k8.2) is accepted over X's when there is a dispute:

1. concerning the commissioned article's destruction;
2. as to whether the article was or was not returned to X;
3. or whether Y betrayed his trust.

k17.16 Either X and Y may cancel the commission at any time. If X relieves Y of his commission, but Y does not learn of this and performs it, then what he has done is not legally binding or effective (O: because he did not have the right to handle the matter).

k17.17 The commission is cancelled when X and Y dies, loses his sanity, or loses consciousness (Ar. ughmiya 'alayhi, i.e. through other than falling asleep).

k18.0 DEPOSITS FOR SAFEKEEPING (WADI'A)

(n: Given persons P (al-mudi') and Q (al-wadi') (A: where P deposits an article with Q for safekeeping until such time as P should want it back. Such deposits have four integrals:

1. the article (al-wadi'a);
2. the verbal agreement;
3. P;
4. and Q).)

(O: The appropriateness of mentioning deposits for safekeeping after having discussed commissioning others is plain, namely that both the person commissioned and the person with whom something is deposited are bearers of a trust, and do not pay for the loss or destruction is the result of their wrongdoing (A: or remissness in taking normal precautions).)

k18.1 Deposits for safekeeping are only valid when both P and Q full right to handle their own property.

Thus, if a child or a foolhardy person (def: k13.1 (A:)) deposits something for safekeeping with an adult, he should not accept it. If he does, then he is responsible for it (O: and must cover the cost if it destroyed) and is not free of the responsibility until he returns it to the child's guardian. He is not free of the responsibility if he merely returns it to the child.

If an adult deposits something for safekeeping with a child (A: or other person without full disposal over their affairs), then the child is not responsible if the article is destroyed through negligence or otherwise (O: as when an act of God befalls it), though if the child destroys the article, he is financially responsible for it.

k18.2 It is unlawful for Q to accept a deposit for safekeeping when he is not able to protect it. It is offensive for him to accept it if he is able to protect it but cannot trust himself and fears he may betray the responsibility> But if he can trust himself, it is desirable and praiseworthy for him to accept it.

k18.3 If Q accepts a deposit for safekeeping, he is obliged to keep it in a place meeting the normal specifications for safeguarding similar articles (A: for his town and times) (O: which varies according to the nature of the article deposited, as each thing has precautions proper to safeguarding it (dis:o14.3)).

k18.4 If Q plans to travel or fears he may die, he must return the deposited article to P. If Q cannot find P or someone commissioned by P (A: to manage P's affairs), then he must deliver it to the Islamic magistrate (A: to keep for P). If there is none, Q leaves it with a trustworthy person (O: and he is not obliged to delay his trip), though if he deposits the article with a trustworthy person when there is an Islamic magistrate, he is still financially responsible for it.

If Q fails to take the above measures (A: of returning it to the owner or next most appropriate person available ) and he dies without having provided in his will for returning the article, or he travels with it, then he is financially responsible for it, unless he dies suddenly, or looting or fire breaks out in the city, and he travels with it because of being unable to give it to any of the above persons.

k18.5 Whenever P asks for the deposited article, Q is obliged to return it by allowing P to take it (O: i.e. by relinquishing possession of it, though this does not mean he has to transport it to P).

k18.6 Q is financially responsible for the deposited article if:

1. without excuse, he delays allowing P to take it;
2. he deposits the article or safekeeping with a third party, without having had to travel and when there was no need;
3. he mixes the deposited property with his own property or with some of P's other property such that the deposited property is no longer distinguishable from what it has been mixed with (O: as opposed to when the deposited property can be easily distinguished and has not depreciated as a result of being mixed);
4. he takes the article out of the place of safekeeping to use, even if he did not use it (O: because merely taking it out with such an intention is a betrayal of his trust);
5. he does not keep it in a place meeting the normal specifications for safeguarding similar articles;
6. or if P has told him, "Keep it in such and such a particular place for safeguarding, "but he instead puts it in a different place less protected (O: than the one P indicated), even when this second place meets the normal specifications for safeguarding similar articles (O: though if Q puts it in a different place with protection equal or superior to the place P has indicated, Q is not responsible for it).

k18.7 Either party may cancel the deposit for safekeeping agreement at any time. The agreement is also annulled when either party dies, loses his sanity, or loses consciousness (Ar. ughmiya `alayhi, i.e. through other than falling asleep).

k18.8 Q's responsibility in accepting a deposit for safekeeping is that of someone who has been given a trust (O: meaning that his claims when he swears an oath (N: and neither side has proof (dis:k8.2)) are accepted, a he is a trustee). His word is accepted over P's when there are disputes about:

1. whether the deposit for safekeeping was actually made (O: When P claims that it was);
2. whether the article was returned to P;
3. or whether and how the article was destroyed (O: when Q claims it was).

Thus if Q says, "You did not deposit anything with me," or "I returned it to you," or :It was destroyed without negligence on my part," then his word is accepted when he swears.

k18.9 It is a necessary condition for the validity of a deposit for safekeeping that P states it in words such as "I entrust it to you to keep," or "I entrust it to you to protect." It is not necessary that Q give a spoken reply to this, but is sufficient for him to simply accept the article.

k19.0 LENDING SOMETHING FOR USE (`ARIYYA)

(n: Given persons A (al-mu'ir) and B (al-musta'ir) (A: where A lends B an article to use and return after use. This section discusses such loans, which have four integrals:

1. the article (al-`ariyya);
2. the verbal agreement;
3. A;
4. and B).)

k19.1 A's lending an article for B to use is valid if A possesses full disposal over his own property and has the lawful right to the article's use, even if he is only renting (n: though not if someone else has lent him the article without giving him permission to relend it, as at k19.8).

k19.2 It is permissible to lend anything that can be benefited from while the article itself still remains (O: such that B gets some use out the article, as is usually the case, or else he materially gains from it, as when he borrows a sheep for its milk or its expected offspring, or borrows a tree for its fruit. It is not valid to lend something of no lawful benefit such as a musical instrument (dis: r40), or such things as edibles, which do not themselves exist after use, since their use consists solely in their consumption). (A: The latter would be a loan (qard, def:k10) repayable in kind, and hence not included in lending for use.)

k19.3 It is necessary for the validity of lending something for use that either A or B state the agreement in words. (O: The loan is not valid except by either A or B stating it, such as by B telling A, "Loan me such and such." and then A giving it to him. The action alone, between A and B, is insufficient.)

k19.4 B may then use the article according to the permission given. He may:

1. do what A has given him permission to;
2. or do the equivalent (O: in respect to the wear and tear on the article involved) or something less, though not if A has forbidden B to do other than what he has specifically given him permission to do.

If A tells B, "Plant wheat," (A: on land lent), then it is permissible for B to plant barley, though not vice versa (O: since wheat is harder on the soil than barley), while if A merely permits B to plant, without further restriction, then B may plant whatever he wishes.

k19.5 When A permits B to plant an orchard or build buildings on property he lends B, but later wants the land back, then:

1. if A had stipulated that B would have to remove the trees or buildings, then B removes them (O: obligatorily, performing what was stipulated, for if B will not, then A may remove them);
2. but if A had not stipulated this, then if B whether, he may remove them, though if B does not (O: but rather chooses to keep them there), then A has a choice between leaving them on the land for rent (O: from B for the land), or else removing them (O: the trees or buildings) and being obliged to pay B a compensation for the loss of value (O: to the trees (A: or buildings)) caused by removal.

A is entitled to take back the article lent at any time he wishes.

k19.6 B is financially liable for the article lent (N: even if it is destroyed by an act of God). If it is destroyed while B is using it for other than what A gave him permission to do with it, even if not through B's negligence, then B is responsible to A for the article's value (A: at the market price current for similar articles on) the day of its destruction (O: and he may either replace it or pay A for it).

But if the loaned article wears out through being used in the way that A gave permission to use it; then B is not financially responsible for it (N: as when B borrows a garment to wear which becomes worn out through use alone).

k19.7 B is responsible for the measures entailed in returning the article to A.

k19.8 B may not loan (O: the article lent to him) to a third party (O: without permission).

k20.0 THE RETURN OF WRONGFULLY TAKEN PROPERTY (GHASB)

(O: Taking another's property is an enormaity (dis:p20), the scriptural basis for its prohibition being Koranic verses such as the word of Allah Most High,

"Do not consume each other's property through falsehood" (Koran 2:188).)

(n: Given persons X and Y (A: where X takes an article belonging to Y. This section presents the details of X's obligation (dis: p77.3) to restore Y his property).)

k20.1 Wrongfully taking (ghasb) means to appropriate what is another's right (O: even if this consists of the right to use something, such as forcing someone sitting in a mosque or marketplace to get up from his place) unjustly.

k20.2 When X wrongfully takes anything of value from Y, even if the value is inconsiderable, he is obliged to return it unless this involves destruction to life or lawful property, as when X takes a plant and nails it over a leak in the hull of a ship at sea that is bearing others' property or worthy people or animals (N: meaning those not obligatory to kill (def:e12.8(O:))).

k20.3 If the article taken is destroyed while in X's possession or X himself destroys it, then:

1. if it was fungible (mithli, a homogeneous commodity transacted by weight or measure, an equal amount of which precisely supplies the place of another), then X is financially responsible for replacing it with an equal amount, fungible meaning that which is measured by volume or weight, and which can be validly sold in advance (def; k9.2 (b,d,f,g)) such as grain, gold or silver, and so forth, while nonfungible (mutaqawwim, commodities appraised and transacted as particular pieces of merchandise) means everything else, such as livestock and articles of heterogeneous composition, like meat pastry, and so forth;
2. if the article was fungible (mithli) but it is no longer possible for X to obtain an equal amount to return to Y, then X owes Y its value, which is reckoned at its highest market value between the time X seized it and the time of its subsequent unavailability;
3. but if the article was nonfungible (mutaqawwim), X owes Y its highest market value during the interval between X's taking it and the time of its destruction.

(N: The foregoing apply to when X has appropriated a physical article or commodity (`ayn). As for when he has wrongfully appropriated the use of something, the obligation consists of repaying Y the cost of renting a similar article for a similar amount of time.)

k20.4 X's word (O: provided he swears an oath (N: and neither side has proof (dis:k8.2))) is accepted over Y's when there is a dispute about the destroyed article's value (O: when both agree that it has been destroyed) or about its destruction (A: as to when it occurred, for example). But Y's word is accepted over X's when there is a dispute about whether or not X returned the article to Y.

k20.5 If the property returned by X is materially diminished or has depreciated in value because of some new defect, or both, then X is obliged to pay Y compensation for the loss of value (O: while still being obliged to return the rest).

But if the article has diminished in value solely because its market price is now less, then X is not required to pay anything.

k20.6 If the article possesses a utility (O: meaning a rentable utility, as a house does), then X owes Y its rent for the period that X had it, no matter whether he used it or not.

k20.7 Anyone who obtains the wrongfully appropriated article from X, or subsequently obtains it from the person who got it from X, and so forth, on down, is financially responsible (def: k20.2-6) to Y for it, no matter whether such a person knows of its having been wrongfully appropriated or not.

k20.8 (N: Given persons X,Y, and Z, where X has wrongfully taken something from Y, and then Z obtains it from X. This ruling describes the compensation due to Y when the article has been damaged or destroyed in Z's possession.)

Y is entitled to demand restoration or payment for the loss or depreciation of the article from either X or Z. The obligation to cover this becomes Z's own financial liability-meaning that if Y asks Z for compensation, Z may not in turn demand it from X; though if Y asks X for it, X may it turn demand it from Z-in the following cases:

1. when Z obtained it knowing that it had been wrongfully appropriated;
2. when Z obtained it not knowing that it had been wrongfully appropriated, but the means by which Z obtained it would have made him financially responsible for its destruction anyway, as when Z himself wrongfully appropriated it or borrowed it for use (def: k19) from X. (O: Z is also financially liable if he bought it from X);
3. or when Z obtained it not knowing it had been wrongfully taken, and the means by which he got it from X would not otherwise have made him responsible for its destruction except for the fact that he himself precipitated its destruction (A: as when X deposits it with Z for safekeeping and Z destroys it).

k21.0 PRE-EMPTING THE SALE OF A CO-OWNER'S SHARE TO ANOTHER (SHUF'A)

(n: Given P, Q, and R (A: where P and Q each own part of some dividable piece of real estate, and P sells his part to R, a third party. In such a case, Q can legally force R to sell the part to him by right of pre-emption (N: whose purpose is to prevent the harm to Q that would result if R were to subsequently go to the Islamic magistrate and demand that the property be divided to distinguish his property from Q's)).)

k21.1 Preemption is only legally binding:

1. on a portion of real estate (A: that belonged to P and Q) which can be divided without loss of value;
2. when P has sold his part (A: to R) for recompense.

In such a case, Q may preempt its being sold to R by buying R's share for the price that P and R agreed on. If there are several co-owners in place of Q, they each buy a part of the share proportionate to the percentage of the whole property they respectively own.

(A: If there is disagreement between the parties as to how much P sold it to R for, and there is no proof, then) R is the one to say (A: when he swears(def:k8.2)) how much the price of the part was.

k21.2 It is a necessary condition for the pre-emptive sale that Q effect it with words such as "I hereby appropriate this property by preemption."

It is also necessary that Q give R the price, that R agree to let Q pay it later, or that the Islamic magistrate rule that Q may buy the property by preemption; in any of which cases Q takes possession of it.

If R paid P with something fungible (mithli, def: k20.3(1)), then Q must pay R an equal amount. If R paid with something nonfungible, then Q must pay its value (A: in the marketplace on) the day of the sale.

k21.3 There is no preemption if:

1. the property is divided (N: already, by boundary markers or similar);
2. the building and trees on the land are sold separately from it;
3. the property cannot be divided without eliminating its usefulness (non-k21.1(a)), such as a cistern or a narrow walkway;
4. R acquired it without paying a price for it, as when it has been given to him as a gift;
5. or if R bought it with a price whose amount was not known (A: such as "for this pile of silver you see").

k21.4 It the building and trees have been sold with the land (A: for one price), then Q also takes them as part of the land he preempts.

k21.5 Preemption must occur immediately (A: upon Q's learning of P's having sold the property to R). When Q learns of it, he must preempt at once (def:f4.5). If he delays without excuse, he no longer has the right to preempt, unless R bought the property from P for postponed payment, in which case Q has a choice between buying it at once, or waiting until payment is due and then buying it.

If Q learns of the sale while ill, or being denied, he must commission someone (def:k17) to preempt for him. If he does not, he loses the right to preempt, unless he was unable to commission someone, or the person who informed him of the sale was a child or someone unreliable, or he was informed of it while travelling and then started returning in order to preempt; in all of which cases he may still preempt.

k21.6 If R has built, or planted trees (A: before Q could preempt), then Q has a choice between paying R the value of the new buildings (A: or trees) and taking possession of them, or else removing them and paying R for the loss of value (A: to them as a result of being removed).

If R has given away the part of the property (A: that he bought from P), made it a charitable endowment (waqf,def;k30), sold it, or returned it to P because of a defect, then Q may annul any of these transactions that R has effected.

Q also has the right to take the property from the person who bought it from R, by paying this person who bought it from R, by paying this person the amount for which he bought it.

k21.7 If Q dies (A: before he is able to preempt), his heirs can preempt. If some of them decline to do so, the rest of the heirs may still preempt the entire portion, or may relinquish the right to preempt any of it.

k22.0 FINANCIAL A PROFIT SHARING VENTURE (QIRAD)

(n: Given persons X (al-malik) and y (al-`amil) (A: where X and Y a sum of money for Y to do business with, on the basis that X will take a percentage of the profits. Such ventures have six integrals:

1. X;
2. Y;
3. the work performed by Y;
4. the profit (n: divided between them at a given percentage);
5. the spoken form;
6. and the venture's capital (n: which is put up by X)).)

k22.1 Financing a profit-sharing venture (qirad) means for X to give Y money with which to trade, the profits to be shared between them. (O: It is not valid to finance such a venture on the basis that a third party gets any of the profit.)

It is only valid when both parties have full right to manage their own property. It also requires that there be:

1. a spoken proposal (O: by X, such as "I finance you," or "I engage you, "or "Take these dirhams [N: as a trade loan]");
2. an acceptance (O: by Y in words. It is insufficient for him to begin working without saying anything);
   and that the invested capital be:
3. money (lit. "gold or silver" (A: money taking their place in these rulings));
4. of known amount;
5. physically existent (A: i.e. it can be seen and handled, not merely a debt or financial obligation to be collected);
6. delivered to Y (O: it is not valid to finance a profit-sharing venture on condition that the funds be held by someone other than Y, such as X holding them and paying for what Y buys, since y might not find X he needs him);
7. (A: and that Y be given the funds) in return for (A: X's receiving) a known fraction of the entire profit, such as a half or a third.

Financing a profit-sharing venture is not valid when:

1. (non-(c) above) the capital put up consists of commodities;
2. (non-(f)) X holds the funds;
3. (non-(g)) it is stipulated that either X or y be specifically entitled to the profits from a certain part of the business (O: such as saying, "You get the profits from the clothing, and I get the profits from the livestock");
4. (non-(g)) either X or Y is guaranteed (N: for example) ten dirhams of the profit (O: since they might not make more than ten, in which case the second partner would get nothing) (A: rather, they must specify the percentage that each will take);
5. (non-(g)) it is stipulated that one of them be entitled to all of the profit;
6. or (non-(f)) it is stipulated that X work with Y in the business.

k22.2 Y's role is to conduct business and related matters with consideration for their best financial advantage and with circumspection. Y may not sell at a loss, sell for deferred payment, or travel with the capital, and so forth, without X's permission.

k22.3 The agreement between X and Y is nullified whenever X stipulates (O: something that is not obligatory for Y in such ventures, such as) that Y buy wheat, mill it, and bake it; that Y buy yarn, weave it, and sell it; that Y not deal except in such and such a rare commmodity; or that Y deal exclusively with So-and-so.

k22.4 When such an agreement is invalid, the transactions Y has conducted are valid, and Y is paid the wages that are usual for such work, unless X had stipulated, "I get all the profits, "in which case he takes all of it and Y gets nothing (O: since he worked without expecting anything).

k22.5 When either X or Y cancels the agreement, loses his sanity, or loses consciousness (Ar. ughmiya `alayhi, i.e. through other than falling asleep), then the agreement is annulled and Y is obliged to liquidate the holdings (A: by changing them back into funds).

k22.6 (A: When neither party has proof,) Y's word (O: if he swears (dis:k8.2)) is accepted over X's when there are disputes:

1. concerning the amount of capital originally put up;
2. as to whether or not the capital was restored to X;
3. concerning the destruction of the holdings;
4. or as to whether Y betrayed his trust.

k22.7 If X and Y dispute as to how much of the profit was stipulated half for me," and X replies, "To the contrary, it was onethird"), then each party swears an oath supporting his own claim (O: and when they have sworn, X gets all the profit, and Y receives the wages customary for the work he did).

k22.8 Y does not own his share of the profit until the venture's final division. (O: His possession of it is only finalized by dividing the profits when the holdings ae liquidated and the agreement is terminated.)

k23.0 WATERING GRAPES OR DATES FOR PART OF THE CROP

k24.0 SHARECROPPING (MUZARA'A)

(n: Sharecropping means to farm someone's land for a share of the harvest. In the Shafi'i school, it is not permissible or valid except on strips of land between date groves under certain conditions, such as:

1. that the landowner provide the seed;
2. that it be unfeasible to separate working the trees from working the ground;
3. and that the sharecropper be currently working the trees also, under the above (k23) arrangement.

This section has been left in Arabic below, and rulings from the Hanafi school, which permits sharecropping, have been added by the translator.)

k24.2 (Ahmad Quduri:) Abu Hanifa (Allah have mercy on him) holds that sharecropping, for one-third or one-fourth of the harvest (or anything less or more), is invalid, though Abu Yusuf and Muhammad (A: the colleagues of Abu Hanifa) hold it to be valid.

Sharecropping, in the view of the latter two, is of four types (A: three of them valid and one invalid). (n: Given persons X and Y, and the four agricultural variables: land, seed, labor, and oxen (i.e. the means of plowing):)

1. X provides the land and seed, and y provides the labor and oxen; and seed; which is permissible;
2. X provides the land, and Y provides the labor, oxen, and seed; which is permissible;
3. X provides the land, oxen, and seed and Y provides the labor, which is permissible;
4. or X provides the land and oxen, and Y provides the seed and labor; which is not valid.

A sharecropping agreement is only valid if the period of the agreemtnt is determinately specified (lit. "known"), and it requires that the total produce be divided between the partners (A: not a specific number of bushels to one, for example, or on condition that the produce from ne part of the land belong to one of them and the produce from another part belong to the other) (al-Lubab fi sharh al-kitab (y88), 2.228-30).

k25.0 RENTING THINGS AND HIRING PEOPLE'S SERVICES (IJARA)

(n: Given persons P and Q, where Q rents a pack animal from P, or hires P as a guide. The title of this section, Ijara, has the dual significance of renting an article and hiring a person's services.)

(O: Lexically,rent is a name for the rental fee. In Sacred Law it means to take possession of a utility or service for payment under certain conditions, It has four integrals:

1. the spoken form;
2. the fee;
3. the utility or service;
4. and the persons making the agreement.)

k25.1 A rental agreement is only valid between two persons entitled to conduct sales (def; k1.2) It requires both a spoken offer, such as "I rent this to you." or "the use of it"; and a spoken acceptance. (O: The agreement must also specify how much the rental fee is.)

k25.2 There are two types of rental agreements:

1. renting anticipated utilities or services described in advance and under obligation to deliver (ijara dhimma);
2. or renting the use or services of an identified thing or individual who is present (ijara 'ayn).

Rental of something anticipated (ijara dhimma) consists of Q saying, for example, "I am renting from you a pack animal of such and such a description," or "I am hiring you to tailor a garment for me,"or "to provide me with transportation to Mecca."

Rental of something identified and present (ijra'ayn) consists of Q saying, for example, "I rent this animal from you," or I hire you to sew this particular garment for me."

k25.3 It is a necessary condition for a valid rental of something anticipated (ijara dhimma) that P accepts the fee for it at the time the agreement is made.

k25.4 The necessary conditions for a valid rental of something identified and present (ijara 'ayn) are:

1. that the article (or person whose services are) being rented be a particular individual (O: meaning visible to the eye, as in sales);
2. that the article (or person's service) be within P's power to deliver such that Q can utilize it as intended (O: within one's power to deliver including both the actual ownership of an article and the possession of the right to use it, such that if Q is renting it from P, Q may in turn rent it out to a third party);
3. that Q have the right to utilize the article (or services of the person hired) as soon as the deal is made;
4. that the utility for which the article is being rented not entail the article's destruction;
5. and that the agreement specify a rental period that the rented article will probably outlast, even if it be a hundred years, as in the case of land.

Thus, rental of something identified and present (ijara'ayn) is invalid when it consists of:

1. (non-(a) above) hiring the services of "one of these two servants";
2. (non-(a)) hiring someone absent (A: from the place where the agreement is made);
3. (non-(b)) renting land for agricultural use when the land is without water and the area's rainfall is insufficient for crops;
4. (non-(c)) P renting out something (A: that he is already renting to Q) to a third party for the year following the current one, though Q may rent it for the following year (O: since his rental period is unexpired and the two periods are contiguous);
5. (non-(d)) wax for fuel;
6. (non-(e)) or renting out an article unlikely to last, for example, more than a year, for a period longer than that.

k25.5 (O: Additional) conditions for rental of something identified and present (ijara 'ayn) (O: relating to its use or service) are that its utility be:

1. permissible in Sacred Law;
2. of some value;
3. determinately known (O: as to which one it is, its amount, and its utility, meaning that both P and Q know these things), such as saying, "I rent you this land to raise crops on," or "[A: I rent you this pack animal] to carry such and such a quantity of iron, "or" of cotton";
4. for a period known (O: to both P and Q);
5. and for a fee known 90; to both P and Q, in type and amount), even when it is merely seen in bulk, or when it consists of the use of some other utility or service.

Thus, rental of something identified and present (ijara'ayn) is not valid when the utility for which it is being hired or rented consists of:

1. (non-(a) above) playing a flute;
2. (non-(a)) transporting wine, other than to pour it out;
3. (non-(b)) a hawker's cry that does not require any effort,even if it increases the demand for the merchandise;
4. (non-(c)) carrying such and such a quantity (O: on a pack animal) when the nature of the load is unspecified;
5. (non-(d)) being rented for "one dirham per month" when the total period (A: of occupancy, for example) is unspecified (A: though one may renew a valid rent agreement each month, and in such a case the landlord has the right to ask for it in advance);
6. or (non-(e)) hiring someone for the "fee" of providing him with food and clothing.

k25.6 The particulars of the utility (N: such as its precise duration) might not become determinately known except through the passage of time, as when renting a house or hiring a wet nurse in such cases the time must be preestimated (A; when the agreement is made, as a condition for its validity). Similarly, the utility or service might not become determinately known except through the work itself, such as when hiring someone to perform hajj in one's place (dis: j1.10) or the like, in which case the amount of work involved must be preestimated.

If the utility requires both time and work to become determinately known, as is the case with tailoring, building, or teaching someone the Koran, then the utility is preestimated (A: i.e. stated in the rental agreement) with regard to one of these two variables alone. It is not valid to estimate the utility with regard to both, such as Q saying, "[O: I hire you to ] tailor this garment for today's daylight hours" (O: since the work involved might take more or less time than that).

k25.7 The necessary things required by Q in order to utilize, such as the key (A: to a house), or the reins, girth, or saddle (A: of a mount), are P's responsibility to provide. Things that merely enhance or improve the utility for which Q has rented the article are Q's responsibility.

k25.8 Q is entitled to normal use of the article in obtaining the utility for which he has rented it of an equivalent utility (A: riding it in a different direction, for example, the same distance as the agreed upon and under the same conditions). If Q travels farther than the agreed upon destination, then he is obligated to pay the rental fee agreed upon, plus the amount customarily paid for a distance comparable to the excess.

k25.9 It is permissible (O: only when renting something identified and present (ijara 'ayn)) for Q to pay in advance or to defer payment to the future. If neither party states whether it is to be paid in advance or whether in the future, then it is payable in advance.

When renting anticipated utilities or services (ijara dimma), it is permissible to let Q use the utility prior to the agreed upon period, or to delay use until after the period.

k25.10 (O: When renting something identified and present (ijara 'ayn)), if the article being rented is destroyed, the agreement is thereafter cancelled (O: with respect to the future, since the article to be utilized is no longer available then, as opposed to the period that has transpired after the article's delivery, for which Q must pay an appropriate proportion of the agreed upon fee, based on the current market value of similar utilities or services).

(O: When renting an identified and present utility or service (ijara 'ayn),) if a defect occurs (O: in the article being rented, and the defect obviously entails a discrepancy in the rental fee), then Q has the option to cancel the agreement (O: unless P immediately undertakes to correct or repair the defect, for if he does, Q is not entitled to cancel it). But if the rental agreement concerns an anticipated utility or service (ijara dhimma0 (O: and the rented article has been destroyed after its delivery), then the agreement is not nullified and Q may not cancel it, but is only entitled to ask P to replace the article so that Q can obtain the utility anticipated.

k25.11 If the material Q has hired P to work on (A: e.g. when Q hires P to tailor a garment from material Q has given him) is destroyed in P's possession without his negligence, then P is not obliged to pay for its loss.

If Q has rented an article from P and it is ruined in Q's possession without his negligence, then Q is not obliged to pay for its loss.

k25.12 If P and Q dies while the rental agreement is in effect, it is not cancelled. (O: Rather, if P has died, Q finishes using the article, while if Q has died, then Q's heirs finish utilizing it. Neither party has the right to cancel the agreement in such a case when the article itself still exists.) (A; The death of either party is considered by the Hanafi school to nullify the agreement.)

k25.13 When the rental period is over, Q must return the article rented and is responsible for the measures (A: and the expenses) entailed in returning it.

k25.14 When P or Q stipulates a particular rental period or a specific use for the article, then when P has delivered the article to Q and the period stipulated elapses, or a period elapses that is sufficient for the utility stipulated to have been obtained from the article (O: even if it has not in fact been obtained), then the rental fee is due (O: from Q, who rented the article under such stipulations), and the article must be returned. (O: This ruling holds for both renting something identified and present (ijara 'ayn) and renting something anticipated (ijara dhimma).)

k25.15 In an invalid agreement, Q owes P the amount typically paid for renting similar utilities, due whenever he would have owed P the fee agreed upon had the agreement been valid.

k26.0 JOB WAGES (JA'ALA)

(n: Given persons X and Y,where X offers Y a dirham to do a certain job.)

k26.1 When X says, "I owe whoever builds me a wall a dirham" (A: or makes a similar offer), this is termed job wages. It is permissible that (A: the particulars of ) such a job be unknown, though not the amount of the wage. Whoever then builds the wall for X is entitled to the amount stated, even if they are a group of people.

k26.2 Whoever works when no wage has been stipulated does not deserve anything. If X and Y a garment to clean, saying "Wash it, "but does not mention a wage, and Y washes it, then Y deserves nothing (N: unless it is a well known customary usage that Y should receive a fee, as when Y is a barber or presses clothes and the like). If Y says, "You stipulated a wage for me, "but X denies it, then X's word is accepted (A: when there is no proof (dis:k8.2)) (O: if he swears an oath).

k26.3 Both X and y are entitled to cancel their agreement (O: before the job is finished), but if X cancels it after Y has begun work, then X is obliged to pay Y an appropriate portion of the wage agreed upon (O: such that if the job is half done, then X owes Y half the amount, and so forth).

Otherwise (O: if X cancels it before Y has begun, or if Y cancels it himself after having begun), Y gets nothing.

k27.0 LOST AND FOUND (LUQTA)

(n: Given Z, who finds an article lying on the ground and picks it up.)

k27.1 When a responsible adult finds a lost and found article it is permissible for him to take (O: or leave )it.

k27.2 If he can trust himself to take the proper measures for such articles (dis: below), it is recommended that he pick it up, though if he cannot depend on himself not to betray the trust (A: by simply appropriating the article without telling anyone), then it is offensive for him to take it.

k27.3 It is recommended that the finder determine the type, description, and amount of the article he has found, its container, and the string with which it was tied (O: it being preferable that he record this in writing so as not to forget), and for him to have witnesses attest to his having found it.

k27.4 The following two kinds of articles are permissible to pick up for safekeeping (def:k27.5) but unlawful to pick up as lost and found (A: to be advertised and then appropriated (def:k27.6)). and should he do the latter, Z is financially responsible for the article:

1. something lost and found within the Meccan Sacred Precinct (Haram);
2. or an animal unmenaced by small predators, such as a camel or a horse lost and found on open range.

In other than these two cases it is permissible for Z to pick up the article, either for safekeeping or to be advertised and then appropriated.

k27.5 If Z picks up the article for safekeeping, he is not obliged to advertise having found it, and it remains in his care as a trust (def:k17.14) which he is never entitled to dispose of in any way until he finds its owner, in which case he gives it to him. If Z wishes to deliver it to the Islamic magistrate, the latter must accept it.

If Z picks up the article within the Meccan Sacred Precinct (Haram) for safekeeping, he is obliged to advertise his having found it (n: as below).

k27.6 If Z picks up an article intending to appropriate it if he cannot find the owner, then he is obliged to advertise its having been found for a (O: full) year on the doors of mosques, in the marketplaces, and the vicinity where he found it, in the manner customary for advertising such things. At the first of the period he should publicize it morning and evening, then subsequently once a day, then once a week, then once a month, such that the first advertisement is not forgotten and that it is realized that the subsequent notices are repetitions of it (O: and this is what is meant by the customary matter mentioned above). Z should mention some of the article's characteristics in the advertisement, but not all of them (A: so that a would-be claimant is able to prove ownership by describing it in detail) (O: for if Z divulges them all (A: and a pretender takes it), then Z is financially responsible for its loss (A: if the real owner should appear and the pretender cannot be found)).

If the lost and found item is not something major, meaning something unlikely to cause much regret and which will probably be unsought after its loss, then it is not obligatory to advertise it for a whole year, though one must advertise it long enough that its owner will probably have ceased to be concerned about it (N: and this latter is the criterion for advertising most lost and found things, which need not be advertised for a whole year).

k27.7 When Z advertises a lost and found article for a year, it does not enter his possession until he chooses to appropriate it with a formal statement to that effect (O: and not by the mere intention. The statement consists of saying, "I take possession of it," or the like). Z takes possession of it when he chooses to do so (O: by uttering the above words). If it is destroyed before he chooses to appropriate it, Z is not financially responsible for its loss.

k27.8 If Z has appropriated the article (N: which thus enters his financial liability), and the owner one day appears, then the owners is entitled to take:

1. the article itself, if it still exists;
2. an equal quantity (O: if it was fungible (Mithli, def:k20.3(1)));
3. its market value (O: if it was nonfungible (mutaqawwim), where market value refers to the going price for similar articles on the day Z formally appropriated it);
4. or, if the article still exists but some defect has occurred in it, then the owner takes it back with an appropriate compensation (def:k5.4) (O: for the new defect that occurred while Z had it).

k27.9 It is offensive for a corrupt person (def: o24.3) to pick up a lost and found article. If he does, the article is taken from him and deposited with someone trustworthy, and a reliable person is dispatched to oversee the corrupt person's advertising (def:k27.6) of the find, after which the corrupt person may appropriate it.

k27.10 In cases where safekeeping the article is not practicable as when it is a watermelon or similar Z may choose to either eat it or sell it (A: in either case covering the cost if the owner subsequently appears), after which he advertises finding it for a year (O: if it something major, or less than a year (dis:k27.6 second par.) if minor).

If it is possible to preserve the article, as when it consists of dates (A: which are conserved by drying), then if it is to the owner's advantage to sell it, Z sells it, while if it is to the owner's advantage to dry it, then Z dries it. (O: In such a case, if Z wants to simply donate the cost of drying it to the owner , he does so, Otherwise , he sells part of the lot to cover the cost of drying the rest, in the owner's interests. The difference between this and an animal found, of which all is sold, is that an animal's maintenance requires repeated expenditures that may add up to more than it is worth).

k28.0 A FOUNDLING CHILD (LAQIT)

(O: Meaning a child found abandoned without anyone to care for it. The scriptural basis for these rulings is Allah's word:

"And do what is good" (Koran 22:77).

and,

"Cooperate with one another in [works of] piety and godfearingness" (Koran 5:2.)

k28.1 To pick up a foundling is a communal obligation (def: c3.2). A child that is found (N: in a Muslim town) is considered a Muslim, and likewise if found in a non-Muslim town if there is a single Muslim therein, even if he denies the child is his (N: because the religion of someone whose religion is unknown is considered to be that of the people of his own city, and in this case there are two religions, with Islam given precedence, as it always surpasses and is never surpassed. Moreover, considering the child a Muslim is a cause for his own happiness and salvation, as he will be raised in Islam).

k28.2 If money is found with the child or under his head, it belongs to him.

k28.3 If the finder is a resident, trustworthy, and Muslim, then the child remains with him, and he is obliged to have witnesses attest to his having found the child and whatever was found with him (O: such as clothing or money).

The finder spends the money found with the child for its own expenses with the permission of the Islamic magistrate. If there is no Islamic magistrate, then the finder spends it anyway, but has witnesses attest to the amount of the expenditures. If no money was found with the child, then its expenses are paid for by the Muslim common fund. If there is no money in the Muslim common fund (N: or no Muslim common fund), then the finder may borrow money to cover its expenses as a financial obligation to be later repaid by the child.

If the finder is a corrupt person (def: o24.3 (A:)) or a non-Muslim, then if the child is considered a Muslim (dis:k28.1), he is taken from the finder.

If two people find the child and disagree about whom the child should remain with, then the one who is a resident and wealthy is given preference.

k28.4 (A: Adoption is unlawful in Islam when it means giving a child one's own name, a share of one's estate division (irth,def:L1.0), and so on. But when it merely means giving the child a home and other advantages provided by family life until it grows up, then it is a charitable act rewarded by Allah. And Allah knows best.)

k29.0 GAMES, CONTESTS, AND PRIZES

(O: The scriptural basis for competitions and races entailing prize money is the word of Allah Most High.

"And make ready against them whatever force and lines of horses you can" (Koran 8:60).

Muslim relates from 'Uqba ibn 'Amir that the Prophet (Allah bless him and give him peace) said,

"Force means marksmanship,"

repeating this three times.)

RACES FOR PRIZE MONEY

k29.1 Races with prize money for the winner are permissible between horses, mules, donkeys, camels, or elephants, provided that the animals competing are of the same species, though it is not, for example, permissible to have such a race between a camel and a horse.

It is a necessary condition for such a race that the participants know which animals will be ridden, the amount of the prize, and the distance to be run.

k29.2 The prize money may be put up by both contestants, either one, or by a third party. If the prize money is put up by either contestant or by a third party, then the race is unconditionally permissible, and the winner takes all (N: regardless whether he was the one who put up the money or whether it was the other person).

But if the prize money is put up by both contestants, then it is a necessary condition that a third rider enter the contest with a mount equal to theirs (A: in speed, stamina, and so forth.) who puts up no money (N: so that it may be distinguished from gambling. If all three put up the money, then it is necessary that there be a fourth contestant with them who does not pay, and so on). (A: Similarly, bets from one side alone, such as saying, "I will give you ten dinars if what you have said proves to be correct," are lawful when the other party bets nothing.)

Here, the winner takes all. If two riders finish together, they divide the prize.

COMPETITIONS IN MARKSMANSHIP FOR PRIZE MONEY

k29.3 It is also permissible to compete for prize money in competitions of skill at archery, spear throwing, or other military weaponry, when the prize is put up by both contestants, either one, or a third party, though if put up by both, it is necessary that a third marksman enter the contest, as mentioned above (A: meaning one comparable to the others in marksmanship, who puts up nothing).

It is a necessary condition for the validity of such a competition that the following details be specified before the contest:

1. who will be shooting;
2. the number of shots per bout, how many shots are needed to win, and the criterion for a hit (A: that is, in archery, whether the arrow must stick or whether it need merely leave a mark);
3. the distance to the target;
4. and which of the contestants is to begin.

k29.4 It is not permissible to conduct contests for prize money that involve birds, footracing, or wrestling (O: since they are not military weaponry or equipment).

RULING CONCERNING GAMES

k29.5 (N: As for games:

1. every game played by two or more people that relies on luck, conjecture, and guessing is unlawful, no matter whether money is stipulated or not;
2. paying prize money in every game that encourages and assists fighting for Allah (jihad, def:o9) is permissible if the terms of the competition conform to the rulings discussed above in this section (k29.1- 4);
3. every game not of the preceding two types is permissible if no money is paid therein;
4. and any of the above mentioned things which are permissible become unlawful if they prevent one from performing a religious or this worldly duty.)

k30.0 ESTABLISHING AN ENDOWMENT (WAQF)

(O: Lexically, waqf means to be retained. In Sacred Law, it refers to the retention of any property that can be benefited from while the property itself still remains, by suspending disposal of it; with the financial proceeds of it going to some permissible expenditure. The scriptural basis for it is the hadith related by Muslim that the Prophet (Allah bless him and give him peace) said.

"When a human being dies, his work comes to an end, except for three things: ongoing charity, knowledge benefited from, or a pious son who prays for him,"

from which scholars understand ongoing charity as meaning an endowment (waqf).)

(n: Given persons P (al-waqif) and Q (almawquf `alayhi) (A: where P owns, for example, an apartment building that he makes an endowment (waqf), the rent of which will henceforth go to Q, and P stipulates that Q must supervise the upkeep of the building. This section deals with such endowments).)

k30.1 Establishing an endowment is an act of worship.

k30.2 Establishing an endowment is not valid unless the following conditions are met:

1. that P have full right to manager his own property (O: full right to manage his own property including the non-Muslim, whose endowment is legally valid, even if it is for a mosque);
2. that the endowment concern a particular identified article (`ayn) (O: it being invalid to make the mere "right to use something" an endowment, because it is not a particular article);
3. that the article have a (O: lawful) use;
4. that it remain existent (O: for a period in which it would be feasible to rent or hire it out), such as real estate or an animal (O: or clothing, weapons, Korans, or books. It is not permissible to make an endowment of something that cannot be utilized except by using it up, such as food);
5. that the beneficiary be some particular party (O: such as the poor, for example) besides P himself, whether the endowment is an act of worship, as when the beneficiary is mosques (O: or Islamic schools), one's relatives, or the general good; or whether it is merely permissible, such as an endowment that benefits the wealthy, or Jewish and Christian subjects of the Islamic state;
6. and that the endowment be formally established by words that effect it such as "I make it an endowment," or "I restrict [O: such and such a thing to benefit So-and-so]," or "I give [A: such and such] as nonsaleable charity."

k30.3 When the endowment has been made, the ownership of the article belongs to Allah Most High (O: not P or Q) (N: meaning that even though everything is the property of Allah, the article is now dissevered from its metaphorical human ownership), while Q owns the proceeds from it and its utilities (O: and all the benefits that come from it after the endowment has been made, such as rent, the fruit of trees, or offspring, Q may dispose of these as an owner would, as this is the purpose of the endowment. He may utilize the endowment either personally, or through another by loaning it for use or renting it out).

k30.4 The interests of the endowment (O: i.e. its concerns, condition, upkeep (N: and supervision)) are looked after by whoever P stipulates, whether himself or Q or a third party. If P does not stipulate (O: that anyone in particular look after it), then the responsibility belongs to the Islamic authority (N: by himself, or though the person he appoints to do so).

k30.5 The proceeds of the endowment (O: such as the produce of an acreage endowment, or the rent of a property endowment, are disposed of as P stipulates, in terms of (A: for example):

1. proportionality of shares (O: between recipients as to the amount each receives, such as having stipulated twice as much for males as females, or vice versa, or equal shares for each);
2. precedence (O: in some receiving the proceeds before others when they are a group, through a condition that determines who deserves to receive it);
3. inclusiveness (O: of (A: all) recipients, as by saying, "I make this an endowment for my children and their children ,"where the word and implies that each person must be given a share);
4. priority (O: such as saying, "I make this an endowment for the benefit of Islamic scholars, without restriction, and after that [A: if there are no more to be given a share] to the poor," or "I make this an endowment for the benefit of Zayd, and then `Amr, "where if one dies, the next one receives his share);
5. or other conditions (O: such as the proceeds going to those most closely related to P (N: of his offspring), and then the less closely related).

k30.6 (n: The following are examples of invalidity of establishing an endowment due to lack of one of the conditions mentioned at k30.2 above.) An endowment is not valid when it consists of:

1. (non-k30.2(b)) a debt (N: that someone owes to P);
2. (non-(b)) "One of these two houses";
3. (non-(d)) food;
4. (non-(d)) sweet basil (A: which used to be spread on floors as an air freshener) (O: since it quickly deteriorates) (N: i.e. if it is uprooted, though if it is growing, it is valid to make it an endowment);
5. (non-(e)) when its beneficiary is unidentified by P, or unknown (O: since the endowment cannot be implemented. It is thus invalid if P stipulates "whoever Zayd says" as the beneficiary), or is P himself (O: including P stipulating that the proceeds of the endowment be used to pay off his debts, or when P eats of its produce, or utilizes the endowment for his own benefit, any of which invalidates the endowment);
6. (non-(c)) when the proceeds are directed to an unlawful use, such as building a church (dis:o11.5(7)) (O: or purchasing lamps for a church, or building walls around it, since this assists disobedience to Allah. Rafi'i says, "The same is true of an endowment for printing the Torah or New Testament, which is invalid because the Jews and Christians have altered the texts and interpolated spurious material, it not being permissible to occupy oneself with printing their scriptures because doing so is to participate in their disobedience to Allah");
7. (non-(f)) when the beginning or end of the endowment's being in effect are subject to conditions such as saying, "I make it an endowment starting from the first of next month, "or 'for one year, " or "provided that I am entitled to sell it" (O: or "condition that I may take it back whenever I wish");
8. or (non-(e)) when (n: I stipulates, as a priority order of beneficiaries, "Q, then R, "and) Q is not an eligible recipient - such as P stipulating himself as the first beneficiary but R is an eligible recipient, as when P stipulates (A: after himself) "and then the poor."

k30.7 If P designates a particular recipient (O: or group of recipients), it is a necessary condition for the validly of the endowment that the recipient accept it. If he refuses it,this invalidates the endowment.

k30.8 If P designates a particular person (lit. "Zayd") as an endowment's beneficiary, but does not stipulate anyone after him, then the endowment is valid, and after the particular person is gone, its beneficiaries are the poor of P's relatives.

k31.0 GIFT GIVING (HIBA) (n: As when X gives Y a gift.)

k31.1 Gift giving is recommended, It is superior to give gifts to one's relatives than to nonrelatives. When giving gifts to one's children, it is recommended to give each child the equal of what the others are given.

k31.2 Gift giving is only valid under the following conditions:

1. that X have full right to manage his own property;
2. that the gift be something permissible to sell (def:k2.1);
3. that X give it with spoken words that effect it;
4. and that Y accept it with a spoken reply.

k31.3 Y does not own the gift until he takes possession(def:k7.3) of it, before which X may take it back. It is not valid for Y to take possession of the gift without X's permission. In cases where X gives Y an article that is already being kept with Y (O: as when Y has it as a trust for safekeeping, or has borrowed it), or X has put up the article as collateral for Y, and now simply gives Y the article, then it is necessary that Y obtain X's permission to take possession of the gift, and that enough time elapse for Y to reach the gift, (O: if it is distant) and take possession of it.

Once Y has taken possession of the gift, X is no longer entitled to take it back. An exception to this is when one gives a gift to one's child, or their descendant, in which case one may take the gift back, unless such a receiver has sold it in the meantime, and the article has subsequently returned to him (O: by sale or gift), in which case one may no longer take it back.

k31.4 If X and Y something and stipulates that Y give him something determinately known in return, this is valid, but is a sale (A: not a gift). If X stipulates that Y give him something in return that is not determinately known, then the gift is invalid. If X does not stipulate that anything be given him in return, then Y is under no obligation to him.

k32.0 MANUMISSION (`ITQ)

(n: This section, which begins, "To free a slave is an act of worship, "deals with a system of ownership that Islam did not invent but found fully established and not possible to instantly abolish, so it rather encouraged its elimination in steps, with incentives. It closed all avenues for obtaining new slaves except the capture of war prisoners, the soldiers of whom the caliph had the option to enslave or not; it encouraged the freeing of slaves by the tremendous reward from Allah Most High; and it materially helped slaves to purchase their freedom by providing them the money to do so from zakat funds (dis: h8.15). Like previous references to slaves, the following four sections have been left untranslated because the issue is no longer current, unlike the times of our author Ibn Naqib, whose rulers, the Mamelukes of Egypt, were themselves slaves who legally belonged to the Islamic state, a fact sufficient to show the fallacy of understanding slavery in the Islamic milieu in terms of the institution that existed in nineteenth-century America and elsewhere in the West (dis: w13).)

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