(al-\ajr)
The Insane & the Minor
Definition
\ajr
\ajr
literally means man` (to prohibit, refuse, prevent, deprive, detain), and this
meaning is also evident from the Qur'anic verse:
(Upon the day that they see the angels, no good
tidings that day for sinners: they—i.e. the angels—shall say), 'A ban
for~idden. ' (25:22)
Legally it implies prohibiting the dispositions of a person with respect
to all or some of his property. The causes of disability, which we will discuss
here, are four: (1) insanity (aljunun); (2) minority (al-sighar); (3) idiocy
(al-safah); (4) insolvency (al-'iflas).
Insanity
In
accordance with explicit traditions as well as consensus, an insane person is
prohibited from all dispositions, irrespective of whether his insanity is
permanent or recurring. But if a person suffering from recurring insanity
manages his property during the period he is free from it, his dispositions are
binding. Further, where it is uncertain whether a particular disposition belongs
to the period of sanity, it will not become binding. Because sanity is a
condition for the validity of an agreement, and an uncertainty regarding it
amounts to an uncertainty concerning the existence of the contract itself, not
its validity, consequently its very basis is negated. In other words, where
there is un certainty about the validity of a contract due to uncertainty
concerning the presence of sanity at the time of its conclusion, we will presume
that the situation before the contract continues to exist and will leave it at
that.
The rule applicable to an insane person is also applied to a person in a
state of unconsciousness and intoxication.
If an insane person cohabits
with a woman and she becomes pregnant, the child will be considered his, exactly
like in the case of 'intercourse by mistake.'
A minor is considered legally incapable by consensus, and there is a
difference of opinion regarding some dispositions of a child of discerning age,
as will be mentioned later. When a minor matures mentally and attains puberty he
becomes an adult and all his dispositions be come enforceable.
The Imámi and the Shaafi'ee schools observe: When a child reaches
the age of ten, his will shall be considered valid in regard to matters of
charity and benevolence. More than one Imámi Jurist, relying on some
traditions, has said: His divorce is also valid.
The reader may refer to the chapter on marriage, the section entitled
"Capacity to Enter Into a Marriage Contract," regarding the age of
puberty and its signs.
(al-Damán)
If an insane person or a child destroys another person's property without
his permission, they are considered liable, because liability pertains to
al-'ahkam al-wad'iyyah in which mental maturity and puberty are not considered
as conditions.2 Therefore, if they have any property that is being administered
by their guardian, compensation will be claimed from this property; otherwise,
the person entitled to the compensation will wait until the insane person
regains sanity and the child attains puberty and then claim from them his dues.
Discerning Child
A discerning child
(mumayyiz) is one who can in general distinguish between that which is harmful
and beneficial, and who understands the difference between contracts of sale and
rent and between a profitable bargain and one entailing loss.
The \anafís say: The
dispositions of a discerning child without his guardian's permission are valid
provided they involve sheer benefit, e.g. the acceptance of gifts, bequests and
waqfs without giving anything in return. But the dispositions in which the
possibility of profit and loss exists—such as transactions of sale, mortgage,
rent and bailment— are not valid except by the permission of the guardian.
As to a non-discerning child, none of his dispositions are valid,
irrespective of the permission of the guardian, and regardless of the thing
involved being of petty or considerable worth.
The \anbalís observe:
A discerning child's dispositions are valid with the permission of the guardian;
so are those of a non-discerning child, even without the guardian's permission,
if the thing involved is of petty worth, e.g. where he buys from a confectioner
what children usually purchase, or buys a bird from someone in order to set it
free. (al-Tanqih and al-Tadhkirah)
The Imámi and the Shaafi'ee schools state: A transaction by a
child whether discerning or not, is altogether illegal, irrespective of whether
he acts as an agent or for himself, irrespective of whether he gives or takes
delivery, even if the object transacted is trivial and insignificant, and
whether it involves a vow (nadhr) or a confession (iqrar). Al Shaykh al-'Ansari
observes in al-Makasib: "The basis for invalidating a child's transaction
is a narrated consensus (al-'ijma' al-mahki) strengthened by an unusual
preponderance (al-shuhrat al-'azimah). The criterion is to act in accordance
with the preponderance."
The Imámi Jurists have mentioned in this regard a number of subtle
sub-issues which al-'Allamah al-Hilli has recorded in al-Tadhkirah. Among these
are the following:
1. If one owes something to a person, and he tells
one: "Give what you owe me to my son," when his son is legally
incapable, and one does so on the basis of the father's behest, and by chance
the child loses it, in such a situation one's liability concerning the debt does
not cease and the creditor is still entitled to demand it from one, although it
was he who asked one to deliver it to his son. Similarly, the child will not be
responsible for the thing he has lost, and one is neither entitled to claim it
from his guardian nor from him on his attaining majority.
As to one's remaining liable for the debt, this is because the debt is
not cleared unless it is validly delivered, and it is presumed that neither the
creditor nor his authorized representative has taken delivery. As to the
delivery taken by the child, its occurrence and non-occurrence are equal,
presuming his incapacity for taking and giving delivery. As to the father's
permission to deliver to the child, it is exactly like someone telling one:
"Throw what you owe me into the sea," and one does as he tells one.
Here, one's liability for the debt is not cast off.
The reason for not considering the child liable for the thing delivered
to him is that it is the deliverer who has destroyed it by improperly using his
discretion and giving it to someone whose possession has no effect, even if it
is by the permission and order of the child's guardian.
2. Where one has in one's possession something belonging to a child and
his guardian tells one to give it to him, and one gives it to the child who
destroys it, one will be liable for it because one is not entitled to act
negligently regarding the property of someone legally incapable even if his
guardian permits it.
3. If a child gives one a d~nar to see whether it is genuine or
counterfeit, or gives one an article for pricing it or selling it or for some
other purpose, it is not valid for one, after it has come into one's hands, to
return it to him; rather one must return it to his guardian.
4. If two children buy and sell between themselves and each takes
delivery from the other and then both destroy what they have received, their
guardians will be liable if they had permitted the transaction, if not, the
liability will be borne from the property of each child.
This is what the Imámi Jurists have observed, but what we consider
appropriate is this: If we know doubtlessly that a particular disposition of a
discerning child is cent per cent to his benefit, it is obligatory for his
guardian to accept it and he cannot annul it, especially if his annulling it
entails a loss for the child.
As to the general proofs which indicate that a child's disposition is
void, they either do not include this situation or it is exempted from these
general proofs. This is so because we are sure that the purpose of the Shari'ah
is benefit, and when we are certain that it exists, we are bound to accept it
exactly like our acceptance of a self-evident notion or a valid syllogism. And
this is not ijtihad contradicting nass. (an explicit Qur'anic verse or
tradition); rather, it amounts to acting in accordance with nass for the
knowledge of the aim of the Shari'ah is exactly like the knowledge of a nass, if
not a nass itself.
If we were to accept the view of the Imámi and the Shafi';
schools, a prize—for instance, a watch—given by the school to the best
student would be something out of place, and if a child under the age of
majority were to receive it he would not own it. This is something unnatural and
goes against the practice of rational beings, creeds and religions.
A Child's Intentional Act is a Mistake
If a child kills a person or injures him or severs any part of his body,
he will not be subject to retribution. He will be dealt exactly like an insane
person, because he is not capable of being punished, neither in this world nor
in the Hereafter. A tradition states: ,~~ (A child's intentional act is a
mistake). There is no difference of opinion among the schools concerning this.
As to the compensation given to the victim, it will be borne by the paternal
relatives (al-'aqilah).
In some circumstances where
beating a child is permissible, it is only for reforming him, not as retribution
(qisas) or punishment (ta 'zir).
The Impudent
(al-Safíh)
Definition
An 'idiot' differs from a child due to majority and from an insane person
on account of sanity. Thus idiocy as such is accompanied with the capacity to
comprehend and distinguish. An 'idiot' is one who cannot manage and expend his
property properly, irrespective of whether he has all the qualities necessary
for its proper management but is negligent and does not apply them, or lacks
these qualities. In short, he is negligent and extravagant, in that he
repeatedly performs acts of negligence and extravagance. The acts of
extravagance may be such as donation by him of all or a major part of his
wealth, or build ing a mosque, school or hospital which a person of his social
and monetary status would not build, so that it is deterimental to his own
interests and those of his dependents, and the people view him as having strayed
from the practice of rational persons in the management of property.
Declaration of Legal Diprivation
(al-Ta<jír)
The
schools—with the exception of Abu Hanifah—concur that the idiot's legal
disability is confined to his financial dispositions, and excepting where his
guardian permits him, his position in this regard is that of a child and an
insane person. He is totally free regarding his other activities that are not
closely or remotely connected with property. An idiot's disability continues
until he attains mental maturity, in accordance with the following verse:
And do not give to fools your property which Allah
has assigned to you to manage; provide for them and clothe them out of it, and
speak to them words of honest aduice. And test the orphans until they reach the
age of marrying; then if you find in them mental maturity, deliver to them their
property; (4:5—6) 3
This is the view of the Imámi,
Shaafi'ee, Malik; and the \anbalí schools,
as well as that of Abu Yusuf and Muhammad, the two disciples of Abu Hanifah.
Abu Hanifah observes: Mental maturity is neither a condition for
delivering property to its owners nor for the validity of their monetary
dispositions. Thus if a person attains puberty in a state of mental maturity and
then becomes an idiot, his dispositions are valid and it is not valid to
consider him legally incapable even if his age is less than 25 years. Similarly,
one who attains puberty in a state of idiocy so that his childhood and idiocy
are concomitant, he will not be considered legally incapable in any manner after
attaining maturity at 25 years (Fath al Qad-ir and Ibn 'Abidin)
This contradicts the explicit ijma' of the entire ummah, or rather it
contradicts the obvious teaching of the faith as well as the un ambiguous text
of the Qur'an:
The Judge's Order
Imámi legal authorities state: The criterion for considering the
dispositions of an idiot as void is appearance of idiocy, not the order of a
judge declaring him legally incapable Thus every disposition of his during the
state of idiocy is void, irrespective of whether a judge declares him incapable
or not, and regardless of whether his idiocy continues from childhood or occurs
after puberty. Hence, if an idiot acquires mental maturity, his disability will
be removed, returning only on the return of idiocy and disappearing with its
disappearance (al Sayyid al-'Isfahani, Wasilat al-najat). This opinion is very
close to the one expressed by the Shaafi'ee school.
The Hanafi and the H. anbali schools observe: An idiot will not be
considered legally incapable without the judge's declaration. Therefore, the
dispositions prior to the declaration of his legal disability are valid even if
they were improper; after the declaration his dispositions are not enforceable
even if appropriate.
This opinion cannot be substantiated unless we accept that the
declaration of the judge alters the actual fact. This view is confined to the
\anafís only. As to the Sháfi`í~
Maaliki and the \anbalí schools,
they concur with the Imámís in holding that the judge's order has
no bearing, close or remote, on the actual fact, because it is only a means and
not an end in itself. We have dealt with this issue in detail in our book Usul
al-'ithbat.
The Málikís say: When a person, man or woman, comes to be
characterized with idiocy he becomes liable to be declared legally incapable.
But if idiocy occurs after a short period, say a year, after hir, attaining
puberty, the right to declare his legal incapacity lies with his father, because
the time of its occurrence is close to the period of his attaining puberty. But
if it occurs after a period exceeding a year after puberty, his disability can
be only declared by a judge (al-Fiqh 'ala al madhahib al-'arba'ah, vol. 2,
"baab al-hajr").
The Málikís
also observe: A woman, even if she becomes mentally mature, is not entitled to
dispose her property unless she has married and the marriage has been
consummated. After the consummation of marriage, her right to donate is limited
to one-third of the property, and for the remainder she requires the permission
of the husband until her old age (al-Zarqani).
But all the other schools do not differentiate between the sexes, in
accordance with the general import of the Qur'anic verse (4:6):
The Impudent's Confession, Oath and Vow
If
an idiot is permitted to dispose his property and he does so, the schools concur
that it is valid. As to non-financial acts, such as his acknowledgment of
lineage (nasab) or his taking an oath or a vow to perform, or abstain from, a
certain act that does not involve property, these acts are valid even if the
guardian has not permitted them.
If he confesses to having committed theft, it will be accepted only for
the purpose of amputation and not for financial liability, i.e. his confession
will have effect vis-a-vis the right of God (,haqq Allah) and not vis-a-vis the
rights of other human beings (haqq al-nas).
The \anafís state:
His confession will be given credence in regard to those of his assets which
have been realized after his disability and not from what he owned at its
advent. Also, his will is valid to an extent of one-third in matters of charity
and benevolence.
The Imámís state: There is no difference between the former
and the latter properties. Rather, they say, it is not valid for an idiot to
hire himself for any work even if advantageous without his guardian's
permission. They also obsene: If a person deposits something with an idiot with
the knowledge of his idiocy and the idiot personally destroys it, either
voluntarily or by mistake, he will be liable. But if the deposited thing is not
destroyed personally by the idiot but as a consequence of his negligence in
presening it, he will not be liable, because in this situation the depositor
himself has been negligent and at fault. As to the liability of the idiot where
he personally destroys the deposit, it has its basis in the dictum~ ***** 'He
who destroys an other's property is liable for it.' (Was'ilat al-najat)
The Impudent's Marriage and Divorce
The Shaafi'ee, H. anbali and Imámi schools say: The idiot's
marriage is not valid, and his divorce (talaq or khul') is valid. But the \anbalís
allow his marriage where it is a
necessity.
The \anafís obsene:
His marriage, divorce, and freeing a slave are valid, because these three are
valid even when performed in jest, and with greater reason in a state of idiocy.
But if he marries for more than Fair Dowry, the Dowry will be valid only to the
extent of Fair Dowry.
The Proof of Mental Maturity
The schools concur that mental maturity (rushd) is
ascertainable through testing, in accordance with the words of God Almighty:
********. But the modes of testing are not specific, though the Jurists mention
as examples such methods as handing over to a child the management of his
property, or relying upon him to buy or sell for fulfilling some of his needs,
and the like. If he shows good sense in these activities, he will be considered
mentally mature. As to a girl, she will be given domestic responsibilities to
ascertain her mental maturity or the lack of it.
As per consensus, mental maturity in both the sexes is proved by the
testimony of two male witnesses because the testimony of two male witnesses is a
principle. The Imámís say: It is also proved in the case of women
by the testimony of a man and two women, or that of four women. But in the case
of men, it is only proved by the testimony of men (al-Tadhkirah).
Guardian
Minor's Guardian
We have discussed the legal disability of the minor, the insane person
and the idiot. It is obvious that every legally incapable person needs a
guardian or an executor to attend to the things concerning which his disability
has been declared, and to manage them as his representative. Now, who is this
guardian or executor? It is worth pointing out at the outset that the discussion
in this chapter is limited to guardianship over property. As to guardianship
concerning marriage, it has already been discussed in the related chapter.
The schools concur that the guardian of a minor is his father; the mother
has no right in this regard except in the opinion of some Shaafi'ee Jurists. The
schools differ concerning the guardianship of others apart from the father. The
\anbalí and the Malik;
schools state: The right to guardianship after the father is enjoyed by the
executor of his will, and if there is no executor, by the judge (hakim
al-Shar'). The paternal grandfather has no right to guardianship whatsoever,
because, according to them, he does not take the father's place in anything.
When this is the state of the paternal grandfather, such is the case of the
maternal grandfather with greater reason.
The \anafís say:
After the father the guardianship will belong to his executor, then to the
paternal grandfather, and then to his executor. If none are present it will
belong to the judge.
The Sháfi`ís observe:
It will lie with the paternal grandfather after the father, and after him with
the father's executor, followed by the executor of the paternal grandfather, and
then the judge.
The Imámís state: The guardianship belongs to the father
and the paternal grandfather simultaneously in a manner that each is entitled to
act independently of the other, though the act of whoever precedes acquires
legality, in view of that which is necessary. If both act simultaneously in a
contrary fashion, the act of the paternal grand father will prevail. If both are
absent, the executor of any of them will be the guardian. The
grandfather'sexecutor's acts will prevail over those of the father's executor.
When there is no father or paternal grandfather nor their executors, the
guardianship will be exercised by the judge.
Guardian of Insane Person
An insane person is exactly like a minor in this regard, and the
I views of the schools are similar for both the
cases, irrespective of
whether
the child has attained puberty while continuing to be insane
or has
attained puberty in a state of mental maturity to become insane
later.
Only a group of Imámi Jurists differ here by differentiating between
insanity continuing from minority and that which occurs after
puberty
and mental maturity. They say: The father and the paternal
grandfather
have a right to guardianship over the former. As to the
latter,
the ,hakim al-Shar' will act as his guardian despite the presence of
both
of them. This view is in consonance with qiyas (analogical reason
ing)
practised by the \anafís, because the guardianship of both the
father
and the paternal grandfather had ended (on the child's attaining
puberty
and mental maturity), and that which ends does not return.
But
the \anafís have acted here
against qiyas and have opted for
istihsan.
The Imámi author of al-Jawahir says: It is in accordance with
caution (i ,htiya,t) that the paternal grandfather, the father and the judge act
in consonance, i.e. the property of an insane person between whose insanity and
childhood there is a time gap, will be managed by mutual consultation among the
three. Al-Sayyid al-'Isfahani remarks in al Waseelah: Caution will not be
forsaken if they act by mutual consent.
In my opinion there is no doubt that caution is a good thing, but here it
is only desirable and not obligatory, because the proofs establish ing the
guardianship of the father and the paternal grandfather do not differ in the two
situations. Accordingly, the father and the paternal grandfather will always be
preferred to the judge, because the appli cability or inapplicability of a
particular rule revolves around its subject, and the generality of the proofs
proving the guardianship of the father and the paternal grandfather enjoy
precedence over the generality of the proofs proving the judge's guardianship.
Apart from this, the sympathy of the judge or someone else cannot equal
that of the father and the grandfather, and what rational person would approve
the appointment by the judge of a stranger as a guardian over a legally
incapable person whose father or paternal grand father are present and fulfil
all the necessary conditions and qualifica tions?
The Guardian of an Impudent
The Imámi, \anbalí
and Hanaf schools concur that if a child attains puberty in a state of
mental maturity and then becomes an idiot, his guardianship will lie with the
judge to the exclusion of the father and paternal grandfather, and, with greater
reason, to the ex clusion of the executors of their wills.
That which was observed concerning an insane person holds true here as
well, that no rational person would approve that a judge appoint a stranger as
guardian in the presence of the father and the paternal grandfather. Hence, as a
measure of caution, it is better that the judge choose the father or the
paternal grandfather as the guardian of their child. However, if the idiocy has
continued from childhood and the subject has attained puberty in that state, the
opinion of the three above-mentioned schools is similar to their opinion
concerning a minor (al-Mughni, al-Fiqh 'ala al-madhahib al-'arba'ah, Abu Zuhrah
and al Jawahir).4
The Sháfi`ís neither
differentiate between the guardianship of a minor, an insane person and an
idiot, nor between idiocy occurring after puberty and one continuing from
childhood.
Qualifications of The Guardian
The schools concur that a guardian and an executor require to be mentally
mature adults sharing a common religion. Many jurists have also considered
'adalah (justice) as a requirement even if the guardian is the father or the
grandfather.
There is no doubt that this condition ('adalah) seals the door of
guardianship firmly with reinforced concrete and not merely with stones and mud.
Apart from this, 'adalah is a means for safeguarding and promoting welfare, not
an end in itself. The inclusion of 'adalah as a condition, if it proves
anything, proves that 'adalah was not something rare in the society in which
those who consider it necessary lived.
There is consensus among the schools that those dispositions of a
guardian which are for the good and advantage of the ward are valid, and those
which are detrimental are invalid. The schools differ concern ing those
dispositions which are neither advantageous nor detrimental.
A group of Imámi Jurists observe: They are
only valid if the guardian is the father or the paternal grandfather, because
the condition for their dispositions is the absence of harm, not the presence of
an advantage. But where a judge or an executor is involved, their dispositions
are valid only when advantageous. Rather, some of them observe: The dispositions
of a father are valid even if they are disadvantageous and entail a loss for the
child.5
Other non-Imámi schools state: There is no difference between the
father, the paternal grandfather, the judge and the executor in that the
dispositions of all of them are invalid unless they are advantageous and entail
benefit. This is also the opinion of a large number of Imámi Jurists.
On this basis, it is valid for the guardian to trade with the wealth of
his ward—be he a child, an insane person or an idiot—or to give it to
another to trade with it, to buy with it real estate for his ward, and to sell
and lend from what belongs to him, provided all this is done for benefit and
with good intention, and the surity of benefit in lending is limited to where
there is a fear of the property being destroyed.
It is beneficial here to mention some sub-issues mentioned by the great
Imámi Jurist al-'Allfimah al-Hilli in al-Tadhkirah, "baab
al-,hajr."
Pardon and Compromise
(al-`Afuw wa al-@ul<)
Some
Imámi scholars have said: A child's guardian can neither demand qisas
(retaliation), a right to which his ward is entitled, because the child may opt
for pardon, nor can he pardon, because the child may opt for the execution of
the sentence for his own satisfaction. Al 'Allamah al-Hilli has then opined that
a guardian can demand the execution of the sentence, or pardon, or conclude a
compromise regarding a part of the child's property, provided it is
advantageous.
Divorce and pre-emption
(al-Taláq wa al-Shuf`ah)
A guardian is not entitled to divorce the wife of his ward, irrespective
of whether it is with or without any monetary compensation.
If there is along with the child a cosharer in a property and the
cosharer sells his share to a stranger, the guardian of the child is entitled to
opt for pre-emption or to forgo it, depending on the child's interest. This is
the more sah. i,h of the two opinions subscribed to by the Sháfi`ís
.
Deduction of Claims
(Ikhráj al-\uqúq)
It
is obligatory upon the guardian to deduct from the property of his ward those
claims whose payment is compulsory, e.g. debts, criminal damages, Zakaat, even
if they have not been claimed from him. As to the maintenance of those relatives
whose maintenance is Waajib upon the child, the guardian will not pay it to the
person entitled unless it is demanded.
Spending of the Ward
(Ikhráj al-\uqúq)
It is obligatory upon the guardian to spend towards his ward's wel fare
and it is not permissible for him to act either niggardly or extrav agantly. He
is expected to act moderately, keeping in mind the standard of those similar to
the ward.
The guardian and the executor are trustees and are not liable unless
breach of trust or negligence is proved. Hence, when a child attains puberty and
claims breach of trust or negligence on behalf of the guard ian, the burden of
proof lies on him, and the guardian is only liable to take an oath, because he
is a trustee and the dictum, 'The trustee is liable to nothing except an oath' (
,**** ), will apply.
A Guardian's Sale to Himself
The Sháfi`ís as
well as some Imámi Jurists observe: It is not valid for a guardian or an
executor to sell himself any property belonging to his ward or to sell his own
property to the ward. Al-'Allamah al-Hilli himself has considered it
permissible, making no distinction between the guardian and a stranger, provided
such a deal is advantageous (for the ward) and no blame is involved. Similarly
it is also permissible for a guardian appointed by the judge to sell to the
judge an orphan's property whose sale is valid. This also applies to an
executor, even if he has been appointed by the judge to act as a guardian. As to
the judge selling his property to the orphan, Abu Han;fah has prohibited it on
the basis that it amounts to the judge's pronouncing a decision concerning
himself, and such a judgement is void. Al-'Allamah al-Hilli says: "There is
nothing objectional in it," i.e. the opinion of Abu Hanifah.
As may be noted, there is more to it than mere objectionability, because
this act is neither the same as pronouncing judgement nor related to it, closely
or remotely. Therefore, if it is valid for a judge to buy from the property of
an orphan provided it is advantageous, it is also valid for him to sell to the
orphan if advantageous, and the distinc tion is arbitrary.
The Guardian's or Executor's Agent
The guardian and the executor are entitled to appoint others as their
agents for those activities which they are not capable of perform ing
personally, as well as for those activities which they are capable of performing
personally but do not consider it appropriate on the basis of custom to perform
them personally. But where they consider it appro priate, the opinion
prohibiting it is preferable.
It is evident here that acting personally or through an agent is a means
for securing the ward's advantage and for fulfilling what is Waajib. So wherever
this end is achieved, the act is valid, irrespective of whether it is performed
by the guardian or his agent; otherwise, the act is not valid even if performed
by the guardian himself.
The Insolvent Person
(al-Muflis)
Definition
'Muflis', literally, means someone who has neither money nor a job to
meet his needs. In legal terminology it means someone who has been declared
legally incapable by the judge because his liabilities exceed his assets.
The schools concur that an insolvent person may not be prohibited from
disposing his wealth, regardless of the extent of his liabilities, unless he has
been declared legally incapable by the judge. Hence, if he has disposed of all
his wealth before being declared incapable, his dis positions will be considered
valid and his creditor, or anyone else, is not empowered to stop him from doing
so, provided these dispositions are not with an intent to elude the creditors,
especially where there is no reasonable hope of his wealth returning.
A judge will not declare a person insolvent unless the following
conditions exist:
1. Where he is indebted and the debt is proven in
accordance with the Shari'ah.
2. Where his assets are less than his liabilities.
There is consensus among the schools regarding these two conditions.
The schools also concur on the validity of the declaration of dis ability
where the assets are less than the liabilities. They differ where the
liabilities are equal to the assets. The Imámi, the \anbalí
and the Shaafi'ee schools state: He will not be declared legally
incapable (al Jawahir, al-Tanqih, and al-Fiqh 'ala al-madhahib al-'arba'ah). The
two disciples of Abu Hanifah, Muhammad and Abu Yusuf, observe: He will be
declared legally incapabie. The H. anafs have followed these two in their fatwa.
But Abu Hanifah has basically rejected the idea of considering an insolvent
person as legally ineapable even if his liabilities exceed his assets because
legal disability entails the waste of his capabili ties and human qualities.
However, Abu H. anifah says: If his creditors demand payment, he will be
imprisoned until he sells his property and clears his debts.
This form of imprisonment is reasonable—as we will point out
later—where the debtor has some known property. But Abu Hanifah has permitted
his detention even if no property is known to exist in his name. The following
text has been narrated from him in Fath al Qadir (vol. 7, p. 229, "baab
al-hajr bi sabab al-dayn"): If no property is known to be owned by the
insolvent person, and his creditors demand his detention while he says: "I
have nothing," the judge will detain him for debts accruing from
contractual obligations, e.g. Dowry and kifalah. This is contrary to the
explicit Qur'anic verse:
...lf the debtor is in straitened circumstances,
then let there be postponement until they are eased. (2:280)
Moreover, there is consensus on the issue among all the legal schools of
the Ummah: the Shaafi'ee, the Imámi, the H. anbali, the Maaliki, as well
as Muhammad and Abu Yusuf (Fath al-Qadir, Ibn 'Abidin, al Fiqh 'ala al-madhahib
al-'arba'ah, and al-Sanhuri in Masadir al-haqq, vol. 5)
3. The debt should be payable presently, not in the
future, in accordance with the opinion of the Imámi, Shaafi'ee, Maaliki
and \anbalí schools. But if
part of it is to be paid presently and part of it in the future, it will be seen
whether the assets suffice for clearing the present debts; if they do, he will
not be declared legally incapable; if not, he will be declared so. If he is
declared legally incapable for debts presently payable, the debts payable in the
future will remain till the time of their payment arrives (al-Tadhkirah and
al-Fiqh 'ala al-madhahib al 'arba 'ah ).
4. That the creditors, all or some of them, demand the declaration of his
legal disability.
When all these conditions are present, the judge will declare him legally
incapable and stop him from disposing his property by selling, renting,
mortgaging, lending, and so on, being detrimental to the interests of the
creditors.
The judge will sell the assets of the insolvent person and distribute the
proceeds among his creditos. If they suffice for repaying all the debts, they
will be so applied. In the event of their falling short, a proportionate
distribution will be affected.
On the completion of the distribution, the disability will auto matically
end, because its purpose was to safeguard the interests of the creditos and this
has been achieved.
Exceptions
Al-'Allamah al-Hilli observes in al-Tadhkirah, "baab
al-taflis": From among the assets of the insolvent person, the house where
he resides, his slave, and the horse which he rides will not be sold. This is
the view held by the Imámís, Abu Han-lfah and Ibn H. anbal.
Al-Shaafi'ee and Malik state: All of these will be sold.
A day's provision will also be left for him and his family on the day of
distribution, and if he dies before the distribution, the cost of his shroud and
burial will be met from his own assets, because funeral expenses have precedence
over debts.
In fact all that which is immediately necessary will be left for him,
e.g. clothes, a day's provision or more, in accordance with the circumstances,
books that are essential for someone like him, the tools of his trade by which
he earns his living, the necessary household goods such as mattresses, blankets,
pillows, cooking pots, plates, pitchers, and all other things which one requires
for his immediate needs.
A Particular Object and Its Owner
If an owner (from among the creditors) finds a
particular thing which the insolvent person had purchased from him on credit,
that thing will belong to him in preference to all other creditors, even if
there exists nothing else besides it. This is the opinion of the Imámi,
Malik;, Shaafi'ee and the H. anbali schools.
The H. anafis Observe: He is not entitled to it, but will have a joint
interest in it with the other creditors (al-Tadhkirah and Fath al-Qad-ir).
Wealth Accruing after Insolvency
If after legal disability any wealth accrues to an insolvent person, will
his disability extend to it exactly like the wealth existing at the time of the
disability, or not? Will the insolvent person be completely free in his
dispositions concerning it?
The H. anbalis say: There is no difference between the wealth acquired
after insolvency and the wealth present at the time of it.
The Sháfi`ís hold
two opinions, and so do the Imámís. Al 'Allamah al-H. illi states:
That which is more likely is that the disability extends to it as well, because
the purpose of the disability is to give those entitled their claims, and this
right is not limited to the wealth existing at the time of the declaration.
The \anafís observe:
The disability does not extend to it, and his dispositions as well as
acknowledgment (of debt) are valid in regard to it (Fat,h al-Qad-ir,
al-Tadhkirah, and al-Fiqh 'ala al-madhahib al-'arba'ah).
If a crime has been committed against an insolvent person, if it is
unintentional and requires the payment of damages, the insolvent person
cannot pardon the crime because the right of the creditors extends to
it, and if it is intentional and entails qisas, the insolvent person is
entitled either to take qisas, or to opt for damages, and the creditors
are not entitled to force him to take damages and forsake qisa,s (al
Jawahir).
Acknowledgment by Insolvent Person
If after being declared
legally incapable an insolvent person acknowledges being indebted to some
person, will his word be accepted and that person included among the creditors
at the time of distribu tion of the property?
The Shaafi'ee, the Hanafi and the Hanbal; schools observe: His acceptance
will not be valid in respect to his property present at the time of declaration
of his insolvency.
The Imámi Jurists differ among themselves, with the author of
al-Jawahir and a large number of other authorities subscribing to the view of
the \anbalí , Shaafi'ee and Hanafi schools.
Marriage
The \anafís say: If
an insolvent person marries after his being declared legally incapable, his
marriage is valid and his wife is entitled to be included among the creditors to
the extent of Fair Dowry, and that which exceeds it remains a claim against him.
The Shaafi'ee and the Imámi schools observe: The marriage is valid
but the entire Dowry will be considered a claim against him and the wife will
not be entitled to anything along with the creditors.
Imprisonment
The Imámís say: It is not valid to detain a person in
financial straits despite the disclosure of his insolvency because the Qur'anic
verse says:
And if the debtor is in straitened circumstances, then let there be
postpone ment
until they have eased (2:280).
If he is found to possess any known asset, the judge will order him to
surrender it, and if he refuses to comply, the judge is entitled either to sell
it and clear the debts—because the judge is the guardian (wali) of the
uncompliant—or to imprison the debtor until he clears his debts himself, in
accordance with the tradition:
It is legitimate to punish and humiliate (as when
the creditor calls his debtor 'injust', 'a delayer', etc. ) a debtor who
possesses (financial capability ).
Abu Hanifah observes: The judge is not entitled to sell his property
against his will, but he can imprison him.
Al-Shaafi'ee and Ibn Hanbal state: The judge is empowered to sell and
clear the debts (al-Tadhkirah and al-Jawahir).
Prohibition on Travelling
There is no doubt that if itispermissible to punish a debtor by impris
onment it is also valid to prohibit him from travelling provided the neces sary
conditions exist. These conditions are: The debt be proven as per the Shari'ah;
the debtor be capable of repaying it, and he procrastinate and keep on
postponing payment. Apart from this, the interests of the creditors should be
feared to be in jeopardy if he travels, such as where the journey is long and
dangerous. Hence if the debt is not proved, or is proved but the debtor's
circumstances are straitened and he is unable to repay, or he has an agent or
surety, or there is no fear of the creditors' interests being hurt if he
travels, in all these circumstances it is in no way permissible to prohibit him
from travelling.
From here it becomes clear that the measures taken by the courts in
Lebanon for stopping a defendant from travelling simply on the initiation of
proceedings against him have no basis in the Islamic Shari'ah but in positive
law.
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