Rules Regarding Agency (Wakalat)
Wakalat means that a person delegates somebody a task (like concluding a transaction), which he himself had a right to do, so that the other person may perform it on his behalf. For example, one may appoint another person to act as one's agent for the sale of a house, or for a marriage contract. Since a feeble-minded person does not have right od discretion over his property, he cannot appoint agent (Wakil) to sell it.
2265. * in Wakalat, it is not necessary to recite a formula. If a person conveys to another person, by conduct, that he has made him his agent and the other person also conducts himself in a way to convey that he has accepted that position, e.g. if he places his property at Wakil's disposal so that he may sell it on his behalf, and the Wakil takes that property for that purpose, the agency is in order.
2266. * If a person appoints a person in another city as his agent, and gives him power of attorney, and he accepts it, the agency is in order, even if the power of attorney reaches the agent after some time.
2267. * The Muwakkil ( pricipal) , that is, the person who appoints another person as his Wakil (agent), as the Wakil should be sane, acting on his own volition and authority. And the principal should be abligh, except in case where a discerning child can act.
2268. A person cannot become a Wakil for an act which he cannot perform or which is haraam for him to do. For example, a person who is wearing Ehram for Hajj cannot recite the Nikah as an agent for another person.
2269. * If a person appoints another person as his agent to perform all his tasks , the agency is in order, but if he appoints him as his agent for performing a task without specifying it, the agency will be void. But if the principal gives an optional task agent, like, if he appoints him as a Wakil to either sell his house or give it on rent, the Wakil will be valid.
2270. If a person removes his agent from office, he (the agent) cannot perform the taskentrusted to him after the news of his dismissal has reached
him. However, if he has already performed the task before the news of his dismissal reaches him, it will be in order.
2271. * An agent can relinquish the agency even if the principal is absent.
2272. An agent cannot appoint Sanother person as agent for the performance of the task entrusted to him, except when the principl has authorised him to engage an agent. In that case, he should strickly act according to the insruction. Hence, if the principal has said to him: "Engage an agent for me", he should Sengege an agent for the principal and cannot appoint the agent on his own behalf.
2273. If an agent appoint ans agent for his principal, with his permission, he cannot remove that agent. And if the first agent dies or the principal dismisses him, the secon agency will not be invalidated.
2274. If an agent appoints asomeone as his own agent with the permission of the peincipal, the principal and the forst agent can dismiss that second agent, and if the first agent dies or is removed from office, the second agency becomes invalid.
2275. * If several persons are engaged as agents for performing a task, and everyone of them is allowed to act independedtly, everyone of them can perform that task, and if one of them dies the agency of others is not invalidated. But if, they were told to work jointly, they cannot act independetly, and if one of them dies, the agency of others is invalidated.
2276. * If the agent or the principal dies, the agency becomes invalid. Similarly, if the thing for the disposal of what which one his appointed an agent perishes, (for example, the sheep which the agent was entrusted to sell, dies) the agency becomes invalid. And if either of them ( i.e. the principal or the agent) becomes insane or unconscious, the agency is invalidated. but if either of them becomes insane or unconscious occasionally, the agency does not become during such period, nor after the recovery.
2277. *If a person appoints someone as agent to perform a task, and promis-
es to give him something for his services, he must give the promised thing after completion of the task.
2278. * If an agent is not careless in looking after the property entrusted to him, nor does he exercise such discretion over it for which permission was not grante, and by chance the property is lost or destroyed, he should not compensate for it.
2279. * If an agent has been careless about looking after the property entrusted to him, or treated it in a manner which was different from the one allowed by the principal, and consequency the property is lost or destroyed, he is responsible for it. For example, if he is given a dress to sell, and instead he wears it, and it is lost or damaged, he should pay compensation for it.
2280. If an agent deals with a property in a manner other than the one for which he has been granted permission, for rxample, he wears a dress which hes been asked to sell, and then disposes it in in the authorised manner, that disposal will be in order.
Rules Regarding Debt or Loan
To give a loan to Momineeeen, particularly the needy ones. is Mustahab, on which great has been laid in the Holy Qur'an and in the Traditions ( Ahadith). The Holy Prophet hsa been reported to have said that whoever gives loan to his Muslim brother, his wealth flourishes, and the angles invoke Divine mercy for him, and if he lenient with his debtot, he will pass over the Bridge (Sirat) swiftly. And if a Muslim denies his brethern-in-faith a loan, Paradise becomes forbidden (haraam for him).
2281. It is not necessary to recite a specific formula in the matter of debt. If a person gives something to another person with the intention of loaning, and the other takes it with the intention of borrowing, that contract will be in order.
2282. * Whenever a debtor pays his debt, the creditor should accept it. But if the time for repayment had been fixed at the request of the creditor, or by mutual understanding, then in this case, the creditor can refuse to accept the repayment before the termination of time.
2283. * If a period is fixed for the repayment of debt in the formal contract of debt by the debtoer, or by mutual agreement, the creditor cannot claim repayment of the debt before the expiry of that period. But if it was stipulated by the creditor, or if no such period was fixed, the creditor can demand the repayment of his debt at any time.
2284. When the creditor demands his debt, and the debtor is in a position to pay it, he should pay it immediately, and if he delays its payment, he can commits a sin.
2285. *If the debtor does not possess anything other than the house he occupies, the househol;d effects, and other things of essential needs, without which he would be facing hardship, the creditor cannot claim the repayment from him. He should wait till the debtoer is in a position to repay the debt.
2286. * If a person is indebted and he is unable to repay his debt, he should take up a suitable employement if he can, and pay off his debt. This is an obligatory precaution. Especially. if employment for him is easy, or if it has been his vocation, it is obligatory upon him to do so in order to pay off the debt.
2287. * If a person has no access to his creditor, and does not hope to find him or his heirs, he should pay the amount he owes to poor on behalf of the creditor. And as a precaution, he should obtain permission for it from the Mujtahid. And if his creditor is not a Sayyid, the recommended precution is that he should not give the sum he owes to a poor who is Sayyid. But if he hopes to find his creditor or the heirs, he should wait and search for him. And if he does not succeed, he should make a Will stating that if he died, and if the creditor or the heirs appear, they should be paid from his estate.
2288. If the estate of a dead person deos not exceed the obligatory expenses of his Kafan, burial and the payment of his debt, his estate should be utilised for these purposeand his heir will not inherit anything.
2289. * If a person takes a quantity of gold and silver currency as a loan
and then its price falls, it will be sufficient if he gives the same quantity which he had taken. And if its price rises, he must give the same quantity which he had taken. Hopwever, in either case, there is no objection if the debtor and the creditor mutually agree to some other arrangement.
2290. If the property taken on loan has not perished, and its owner demands it the recommended precaution is that the debtor should return him the same property.
2291. If a person who advances a loan. makes a condition that he will take back more than what he gives, for example, he gives 3 kilos of wheat and stipulates that he will take back 31/ 2 kilos of whea, or eggs and says that he will take back eleven eggs, it will be usury and therefore haraam. Rather if he stipulates that the debtor should apart from the repayment, do some work for him, or repay the loan along with a quantity of another commodity (for example, if he lays down the condition that the debtor will return one rupee owed along with a match box) it will be usury and haraam. Also, if he stipulates that the debtor will return the thing loaned to him in a particular shape, e.g. if he gives him a quantity of gold, and imposes the condition that he will take it back as golden ornaments, that too, is usury haraam. However, if no condition is made by the creditor, and the debtor himself decides to repay something more than what he borrowed, there is no harm in it. In fact, it is Mustahab to do so.
2292. To pay interest is haraam,the same way as charging interest. However, if a person takes a loan against interest, he becomes it owner, althogh it is better that he should not exercise his right of disposal over it. And if it is known that the creditor would have allowed him the use of money loaned, even if they would not have agreed on interest, then the debtor can exercise his discretion over the money loaned to him without any objection.
2293. If a person takes interest bearing loan in the shape of wheat or any other similar thing, and does farming with it, he becomes the owner of the harvest, but it is better he should not exercise his right of disposal over harvest to acquired.
2294. * If a person purchases a dress, and then pays the owner of the dress with the money earned from interest, or with lawful money mixed with interst money, there will be no harm in wearing that dress and offering press with it. But if he says to the seller: " I am purchasing this dress with this sort of money", it will be haraam to wear that dress. But offering prayers with that dress has been adequately explained in the rule for the clothes worn be one who wishes to pray.
2295. If a person gives a sum of money to a merchant, so that he may get from him something less in another city, there is no harm in it. It is called Sarf-i-Barat'.
2296. * If a person gives some money to another person with the condition that after a few days, he will take a larger amount from him in another city, or town, ( for example, he gives $990 to him, and stipulates that after ten days he will take $1000 from him in another city)and if that currency is of gold or silver, the transaction is uaury which is haraam. However, if the person who is taking more amount gives some commodity against the excess amount or performs some task, there is no harm in this arrangement. As for the usual bank notes, which is classified as things to be counted, there is no harm if some more is taken in exchange, except when it is in the form of debt and a condition for rxcess is laid, in which case, it will be interest and haraam. Or, if a person sells bank notes on credit basis, for more in return , and if they belong to the same classification of commodity, it is not a permissible transaction.
2297. If a person is owed by someone, and the thing owed is not in the category of gold, silver or anything measured or weighed, he can sell it to the debtor or anybody else for a lesser amount and realise the sum in cash. On this basis, in the present times, a creditor can sell the bills of exchange or the promissory notes received from the debtor, to the bank, or any other person at a price lower than the amount due to him( which is called' discounting' in common parlance) and can take the outstanding balance in cash, because dealing with regard to common bank bank notes is not by weight or measure.
Rules Regarding Hawala ( Transferring the debts etc.)
2298. If a debt directs his creditor to collect his debt from the third person, and the creditor accepts the arrangement, the third person will, on completion of all the condition to be explained later, become the debtor. Thereafer, the creditor cannot demand his debt from the first debtor.
2299. * The debtor, the creditor and the person to whom collection is referred, should be adult and sane, and none should have coerced them, and they should not be feeble-minded, that is, those who squander their wealth. And it is also necessary that the debtor and the creditor are not bankrupt. Of course, if the debt is transferred to a person who is solvent, there is no harm even if the person assigning the transfer is bankrupt.
2300. * Transferring the debt to a person who is not a debtor will not be correct, unless he accepts it. And if a person wishes to affect a transaction to a debtor for a commodity other than that for which he is indebted, ( for example, if he transfers the debt of wheat while he is indebted to him for barley) the transfer will not be in order, unless he accepts it. In fact, in all cases of such transfers and Hawalas, one to whom it is assigned should have accepted it, otherwise, the transaction will be void.
2301. * It is necessary that a person should actually be a debtor at the time he trasnsfer the debt. Therefore, if he intends taking a loan from some one, he cannot trnsfer the prospective debt in advance to another party, teeling the would be creditor to collect the debt from the party.
2302. * The debtor must specify exactly the category and the quantity of the debt he transfers to another party. For example, if his debt comprises of ten kilos of wheat and ten dollers owed to one person, and he tells him to go and collect either of the two debts from a certain party, that transaction will not be valid.
2303. If the debt is fully indentfied, but the debtor and the creditor do not know its quantity and category at the time of assigning the transfer, the transaction is in order. For example, if a person who has recorded the debt he owes to someone in his books, assigned a Hawala or transfer of debt before
referring to the books, and later, after consulting his records, infroms the creditors about the quantity of his debt, the transfer is in order.
2304. *The creditor may decline to accept the transfer of debt, although the person in whose name the assigning has been given may be rich, and may not fail to honour the Hawala
2305. * If a person accepting the Hawala is not a debtor to the person giving the Hawala, he can demand the amount of the Hawala from the person who gave it, before honouring the Hawala, unless it was previousely agreed that the payment would be deferred for a fixed period, and that period has not lapsed. In this case, the person receiving Hawala cannot demand payment even if he himself have honoured the Hawala. And if the creditor compromises for a lesser amount, the person honouring the Hawala should demand only that sum which he has paid.
2306. * When the conditions of the transfer of debt or Hawala have been fulfilled, the person effecting the Hawala and the person reciving it cannot cancel the Hawala and if the person receiving the Hawala was not poor at the time the Hawala was issued, the creditor cannot cancel the Hawala even if the recipient becomes poor afterwards. The same will pply if the recipient of the Hawala was poor at the time it was issued, and the creditor knew about it. But if the creditor did not know that the person to whom Hawala has been issued is poor, and when he comes to know of it, the recipient is still poor, then the creditor can abrogate the Hawala transaction, and demand his money from the debt himself. But if the recipient of Hawala has tuirned rich, then cancelling the Hawala cannot be substianted.
2307. * If the debtoer, the creditor, and the person to whom the Hawala is assigned agree among themselves that all of them or any one of them has a right to cancel the Hawala, they can do so in accordance with the clause of the agreement.
2308. If the person inssuing a Hawala pays the creditor himself, at the request of the person in whose name the Hawala was issued, who was also his debtor, he can claim from the recipient of the Hawala what he has paidto the
creditor. And if he has paid without his request, or if he was not his debtor, he cannot demand from him what he has paid.
Rules Regarding Mortgage (Rahan)
2309. * Mortgage means that a person effects a conveyance of property to another person as security for money debt, or property held under responsibility, with a proviso that if that debt is not paid, the creditor may pay himself out of the proceeds of that property.
2310. * It is not necessary to pronounce a prescribed formula for effecting the mortgage. If the debtor conveyances his property to the creditor with the intention of providing security for the debt, and the creditor accepts it with the same intention, the mortgage is in order.
2311. * The mortgage and the mortgagee should be adult and sane, and should not have been coerced by anyone. Moreever, the mortgagor should not be bankrupt and feeble minded. The meaning of 'bankrupt' and 'feeble- minded' have been given in rule 2262. But if the property mortgaged does not belong to the bankrupt, or if he has not been prohibited to use it, there is no objection.
2312. A person can mortgage that property over which he has a right of disposal discretion, and it is also in order if he mortgages the property of another person with his permission.
2313. The property mortgaged must be such in which trading is permissible by Shariah. Hence, if alcohol liquor or something like it is mortgaged, the transaction will be void.
2314. * The benefit which accrus from the mortgaged property, belongs to the oner, whether the mortgagor or any other person.
2315. *The mortgagcannot present or sell the mortgaged property to another person without the permission of the owner, whether he is the mortgagor or any other person. However, if he presents or sells it to another person, and the owner consents to it later, there is no harm in it.
2316. * If a mortgagee sells the mortgaged property with the permission of the owner, the sale proceeds will not be considered mortgaged like the property itself. And the same will apply if he sells it without the permission of the owner, but the owner endorses the transaction later. But if the mortgagor sells it with the permission of the mortgagee, with an understanding that its proceds will be mortgaged, that is, the sale proceeds of that property will get motgaged like the property itself, then he must follow the understanding . And if he contravenes it, the transaction will be void, except when the mortgagee gives his assent.
2317. * If the creditor demands the repayment of debt when it is due, and the debtor does not repay it, the creditor can sell the mortgaged property and collects his due, provided that he had been authorised to do so.
And if he was not authorised to do s, it will be necessary to obtain permission from the debto. And if the debtor is not availabel, he should obtain permission for the sale of the property from the Mujtahid. In either case, if he slae proceeds of his debt to the debtor.
2318. * If the debtor does not possess anything othert than his house he occupies, and the essential household effects, the creditor cannot demand the repayment of the debt from him. But, if the thing mortgaged by him is his house and its household effects, the creditor can sell them, and realise his dues.
Rules Regarding Surety (Zamanat)
2319. * If a person wishes to stand surety for the repayment of the debts of another person, his act in this behalf will be in order, only when he makes the creditor unerstand by his words in any language, or by conduc, that he undertakes the responsibility for the repayment of the deb, and the creditor also accepts the deal. It is not necessary that the debtor, too, should be agrreable.
2320. * It is necessary that the guarantor and the creditor are adult and san, and have not been coercedby anyone. Furthermore, they should be feeble-minded or bankrupt. However, these conditions are not applicable
to the debtor. Therefore, if a person stands to repay the debt of a child, an insane, person or a feeble-minded aquanderer, the arrangement is in order.
2321. * When a person gives a guarantee with a condition, as when he says: " If the debtor does not repay your debt, I shall pay it", it is a matter of Ishkal to accept such a conditional guarantee as valid.
2322. * A man giving guarantee should know that the person that the person for whom he stands surety is actually a debtor. If someone is still considered to take a loan, one cannot stand as a guarantor till such time when the loan has been taken.
2323. A person can stand surety for some only when the creditor, the debtor, and the property given as loan, are actually specified. Therefore, if there are two creditors of a person, and a person wishing to guarantee says: "I guarantee to pay the debt of one of you " his being a grantor is void, because he has hot specified as to whose debt he would pay. Also, if a person is the creditor of two persons, and a person giving giving guarantee says: " I guarnatee to pay you the debt of one of them", his becoming a guarantor is void, as he has not specified which person's debt he would pay. Similarly, if a person is owed 30 kilos of wheat amd $10 by another person, and a person wishing to be a guarantor say: I guarantee to pay one of your two debts", and does not specify whether he guarantees payment of wheat or money, the grantee is not in order.
2324. If a creditor gifts the guarantor with the debt owed to him, the guarantor cannot claim anything from the debtor, and if the creditor gifts him with a part of his debt, the guarantor cannot demand that part from the debtor.
2325. * If a person becomes a guarantor for the payment of someone's debt, he cannot withdraw from his responsibility as a guarantor.
2326. As a precaution, the guarantot and the creditor cannot stipulate an option for cancellation of the grantee at any time they wish to do so.
2327. If a person was capable of paying the debt of the creditor at the time he stood as a surety, the creditor cannot cancell his guarantee and demand the payment of the debt from the first debtor, even if the guarantor may have become poor afterwards. And the same rule will apply if the surety at the time of guaranteeing wa not capable of paying the debt, yet the creditor agreed to his becoming the guarantor despite knowing it.
2328. * If at the time of standing surety, a person was incapable of paying the debt of the creditor, and the creditor not knowing the position, now wishes to cancel his guarantee, it will be a matter of Ishkal, especially if the surety becomes capable of paying the debt before the creditor takes notice of the matter.
2329. If a person guarnatees the payment of the debt of a person, without obtaining his permission, he (surety)cannot demand anything from the debtor.
2330. * If a person guarantees the payment of debt with the permission of the debtor, he can demand that amount or quantity from the debtor even before having paid anything to the creditor. But if he paid, or delivered acommodity other than the one which was owed, he cannot ask the debtor to pay or deliver to him that commodity. For example, if the debtor owed 10 tons of wheat, and the guarantor settled the debt with 10 tons of rice, he can not demand rice from the debtor, except when the debtor agrees to the arrangement, in which case, there is no objection.
Rules Regarding Personal Guarantee For Bail (kafalat)
2331. * Personal surety or security means that a person takes the respomsiblity for the appearance of a debtor, as and when the creditor asks for him. A person who accepts such a responsibility is called Kafil (guaranator)
2332. * A person surety will be valid only when the guanteor makes the creditor undertstand by words ( in any language), or conduct, that he understakes to produce the debtor in person as and when demand by the creditor, and the creditor also accepts the arrangement. As a precaution, the debtor's consent is also necessary for the validity of such a gurantee; in
fact, as a matter of precaution, both the debtor and the creditor must accept the Kafalat
2333. It is necessary for a guarantor ( kafil) to be adult and sane, and he should not been under any coercion or pressure, and he should not be able to procduce the person whose guarantor he becomes. Similarly, he should not be a feeble-minded squanderer or a bankrupt, particularly if he has to spend his wealth in order to be able to produce the debtor before the creditor.
2334. * Anyone of the following five things will terminate the personal surety (bail guarntee):
(i) When the guarantor hand over the debtor to the creditor, or if the debtor himself surrenders to the creditor.
(ii) When the debt of the creditor has been discharged.
(iii) When the creditor himself forgives the debt, or transfer it to someone else.
(iv) When the debtor or the guarantor dies.
(v) When the creditor absolves the gurantor from his personal surety.
2335. If a person forcefully releases a debtor from the hands of his creditor, and if the creditor does not have access to the debtor, the person who got the debtor released should hand him over to the creditor, or pay his debt.
Rules Regarding Deposit Or Custody Or Trust (Amanat)
2336. * When a person gives his property to another person, and tells him that it is deposited in trust, and the latter accepts it, or without uttering a word, by a simple conduct, the depositor and the reciever both understand and accept the intention, then they must follow the rules of Amanat as will be explained later.
2337. * Both the trustee and the depositor should be baligh and sane, and should not have been forced by anyone. Therefore, if a person deposits some property with an insane person, or a minor, or if an insane or minor trusteedeposits some property with someone, their action will not be in order. Of course, it is permissible for a discerning child to deposit someone else's property with that person 's consent. Similarly, a depositor must not be a feeble-minded squanderer or a bankrupt. But if the bankrupt person deposits a
property from which he has not been debarred, there is no objection. Also, the trustee must not be a feebel-minded squanderer or a bankrupt, if the protection of the property under his care involves spending from the wealth from which he is debarred.
2338. * If a person accepts a deposit from a child without the permission of its owner, he should return it to its owner. And if that deposit belong to the child himself, it is necessary that it is delivered to his guardian; and if it gets lost or destroyed before the delivery, the person who accepted the deposit must compensate for it. But if he had secured it from the child with the intention of delivering it to the guardian, and if he had not been careless in its safekeeping, he will not be responsible for a loss or damage. The same rule will apply in the case of an insane depositor.
2339. * If a person cannot look after the deposit, and the person making the deposit is not of his incapability, he should decline to accept the deposit.
2340. * If a person tells the owner of the property that he is not prepared to look after his property, and does not accept it, yet the owner leaves it there and goes away, and then the property perishes, the person who has declined to accept the deposit will not be responsible for it. However, the recommended precaution is that, if possible, he should look after that property.
2341. *A person who gives something to another person as a deposit, can abrogate the arrangement as and when he likes, and similarly, one who accepts the deposit can do the same as and when he likes.
2342. If a person renounces the custody of the property deposited with him and abrogates the arrangementhe should deliver the property to its owner or to the agent or guardian of its owner, as quickly as possible, or inform them that he is prepared to contniue as a custodian. But if he does not, without any justifiable excuse, deliver the property to them and also does not inform them, and property perishes, he should give its subsitute.
2343. * If a person who accepts a deposit does not have a suitable place for its safe keeping, he should acquire such a place, and should take care of the deposit in a manner that he would not be accused of negligence. But if he acts carelessly in this regard, and the property is lost or damaged, he will have to compensate for it.
2344. * If a person who accepts a deposit has not been negligent in looking after it, nor he has gone beyond moderation, and then tghe property unexpectedly perishs, he will not be responsible for it. But id he has been careless about its security, say, by keeping it at a place which is vulnerable to theft, or if he commits such excesses like using those article od deposit without the owner's permission ( like wearing the dress or riding the vehicle or the animal etc) and then the deposit property is lost or damaged, he should pay the owner its compensation.
2345. * If the owner of a property specified a place for its safe keeping, telling the person who has accepted the deposit: "You will secure the property here, and even if you suspect that it might get lost here, you must not take it elsewhere", in such case, he cannot transfer it to another palce, and if he does, and it is lost, he is responsible.
2346. * If the owner indicated a place for the security of his deposit, but he did not mean to specify it to the exclusion of other suitable places, the person accepting the deposit can transfer it to a place which is equally safe, or safer than the first place, and if it is lost or damaged there, he will not be responsible.
2347. * If the owner of a depoist becomes permanently insane or unconscious, the deposit is authomatically abrogarated, and the person who had the deposit as trust, should return it immediately to his guardian, or inform him. And if he does not deliver the property to his guardian without a justifiable excuse, and is also negligent informing him, and the property perishes, he should give him its subsitute. But if the insanity or being unconscious is intenermitent, then the deposit cannot be considered as authomatically abrogated.
2348. * If the owner of the deposit dies, the transaction is nullified, and if
the peposit is transferable to theto the heirs without any liability, the trustee should deliver the deposit to the heirs, or inform them about it. And if he fails to do so, without any justifiable excuse, he will be responsible for its loss or damage. However, if he delayed to investigate whether the claimants were the right heirs or not, or whether there were other heirs besides them, and showed no negligence on his part in parting with the deposit or informing the heirs, he will not be responsible for any loss or damage.
2349. * If the owner of the deposit dies, and it devolves upon his heirs, the trustee of the deposit should give the property to all the heirs, or the person who has been authorised by all of them to receive the property. Hence, if he gives the entire property to ne heir without the consent of others, he will be responsible for tthe shares of the remaining heirs.
2350. * If the trustee of the deposit dies, or becomes permanatly insane or unconscious, his heir or guardian should inform the depositor of the property, or deliver the property to him as quickly as possible. But if insanity or unconciouness is intermittent, the deposit cannot be termed as void.
2351. * If a person with whom a property has been deposited, observes in himself the signs of approaching death, as precaution he should , if possible, deliver the deposit entrusted to him to its owner, his guardian or his agent, or inform him. And if it is not possible to do so, he should make such arrangement which would satisfy him that the deposit would reach its rightful owner after his death. For example, he should make a Will aboy it, his Will and to the witness, describing fully the nature of the deposit, and the place where it is kept.
2352. * If a person with whom a property has been deposited, sees in himself the signs of approaching death, and does not act according to his obligattion as mentioned in the foregoing rule, and the property suffer loss or damage, he will be responsible for the deposit, and should make amends for it. But if he recovers from his illness, or after some time repents and acts according to his obligations, then he will not remain responsible.
Rules Regarding Borrowing, Lending (Ariyat)
2353. Ariyat means that a person gives property to anothert person for use without asking anything in exchange.
2354. * It is not necessary in the case of Ariyat that a formal formula be pronounced. So, for example, a person gives a dress to someone with the intention of lending, and he takes it with the intention of borrowing, it is in order.
2355. Lending a thing which has been usurped, and a thing which belongs to the lender but its benefit has been assigned to some other persaon, like, if it has been given on lease, will be valid only when the owner of the usurped thing, or the assignee is agreable to its being lent.
2356. * The assingnee of any benefit, like a lease, can lend the object or property has been leased, to others. But, as a precaution, he cannot give it into the possession of the borrower without the owner's permission.
2357. * If an insne person, or a minor child, or one who is bankrupt, or aa feeble-minded squanderer, lends his property it is not valid. But if, the guardian of such persons considers it expendient to lend the property under his guardianship, there is no harm in it. Similarly, if a minor acts as an intermediary in delivering the lent article to the borrower, there is no objection.
2358. If a person who has borrowed something is not negligent in its keep, nor does he go beyond moderation in its use, he will not be responsible if it is lost or damaged by chance. However, if the two parties stipulate that, the borrower would be responsible for loss or damage, or if the thing borrowed is gold or silver and it is lost or damaged, the borrower should compensate for it.
2359. If a person borrows gold or silver and stipulates that if it is lost or damaged, he will not responsible, he is not responsible if it is lost.
2360. * If the lender dies, the borrower should give it to the former' heirs, acting according to rule 2348 in respect of the deposits.
2361. * If the lender is incapacitated in such a way that he does not have any right of disposal or discretion over his property, like, if he becomes insane or unconscious, the borrower must act in the manner explained in rule 2348 in respect of deposits.
2362. * A lender can rescind the transaction as and when he likes, and the borrower can also do so at any time he wishes.
2363. * Lending something which is not halal to use, like instuments of amusement and gambling, and utensils of gold and silver for eating or drinking, or for any other purposes, is void. However, giving them on loan for the purpose of decoration is permissible, although precaution is that they should not be given on loan even for thios purpose.
2364. Giving on a loan a sheep for the use of its milk and wool, and lending a male animal for matin, is in order.
2365. * If a borrower gives the borrowed property to the owenr, or to his agent, or guardian, and thereafter that thing is lost or damaged, the borrower is nor responsible. But if he takes it to a place without the permission of its owner, or his agent, or guardian, although it may be a usual place to the pwner usually kept it- for example, if he takes the borrowed horse to the stable which has been prepared for its owner, and ties ir there, and it is lost or destroyed later, or some one destroyes it, the borrower is responsible for it.
2366. * If a person lends a Najis thing, and if the situation is like the one explained in rule 2065, he must inform the borrower about it being Najis.
2367. If a person has borrowed a thing, he cannot give it to another person on hire or loan, without the permission of its owner.
2368. If a thing is borrowed, and is then lent to another person with the permission of its owner, and the first borrower dies or becomes insane, the second lending does not become invalid.
2369. If a borrower knows that the borrowed property has been usurped, he should deliver it to its rightful owner, and he cannot give it to the lender.
2370. If a person borrows somthing about which he knows that it has been usurped, and utilises it, and then it is lost or damaged while in his possession, the rightful owner can demand compensaionfor that thing, and the benefit derived from it, from him, or from the lender who usurped it. And if he takes that compensation from the borrower, the borrower cannot claim from the lender what he has paid to the rightful owner.
2371. If the borrower does not know that the property which he has borrowed is a unsurped one, and it is lost or damaged while it is with him, and if its owner receives compensation from him, he too, can demand from the lender what he has paid to the owner. But if the thing borrowed is gold or silver, or if the person who lent him the property stipulated that if it is lost or damaged he will have to give him compensation for it, he cannot demand from the lender the compensation which he gives to the rightful owner of the property.
* The relation between man and woman becomes lawful by contracting marriage. There are two kinds of marriages:
(i) Permanent marriage
(ii) Fixed-time marriage
In a permanent marriage, the period of matrimony is not fixed, and it is forever. The woman with whom such a marriage is concluded is called da'ima (i.e. a permanent wife).
In a fixed time marriage (Mut'ah), the period of matrimony is fixed, for example, matrimonial relation is contracted with a woman for an hour, or a day, or a month, or a year, or more. However, the period fixed for the marriage should not exceed the span of normal lives of the spouses, because in that case, the marriage will be treated as a permanent one. This sort of fixed time marriage is called Mut'ah or Sigha.
2372. * Whether marriage is permanent or temporary, the formal formula must be pronounced; mere tacit approval and consent, or written agreement, is not sufficient. And the formula (Sigha) of the marriage contract is pronounced either by the man and the woman themselves, or by a person who is appointed by them as their representatives to recite it on their behalf.
2373. The representative should not necessarily be a male. A woman can also become a representative to pronounce the marriage formula.
2374. * As long as the woman and the man are not certain that their representative has pronounced the formula, they cannot look at each other as Mahram (like husband and wife), and a mere probable suspicion that the representative might have pronounced the formula is not sufficient. And if
the representative says that he has pronounced the formula, but his assertion does not satisfy the parties concerned, it will not be deemed sufficient.
2375. If a woman appoints a person as her representative so that he may, for example, contract her marriage with a man for ten days, but does not specify the day from which the period of ten days would commence, the representative can contract her marriage with that man for ten days from any day he likes. However, if the representative knows that the woman intends a particular hour or day, he should pronounce the formula according to her intention.
2376. One person can act as the representative of both sides for reciting the formula of permanent or temporary marriage. It is also permissible that a man may himself become the representative of a woman and contract permanent or temporary marriage with her. However, the recommended precaution is that two separate persons should represent each side, for the formula of marriage contract.
The Method of Pronouncing the Marriage Formula
2377. * If a woman and a man themselves want to recite the formula of permanent marriage, the woman should first say: Zawwajtuka nafsi 'alas sidaqil ma'lum (i.e. I have made myself your wife on the agreed mahr), and then the man should immediately respond thus: Qabiltut tazwij (i.e. I accept the marriage). In this way, the marriage contract will be in order.
And if a woman and a man appoint other person to act as their representatives for pronouncing the formula of marriage, and if, for example, the name of the man is Ahmad and that of the woman is Fatimah, the representative of the woman should first say: Zawwajtuka muwakkilaka Ahmad muwakkilati Fatimah 'alas sidaqil ma'lum (i.e. I have given to your client Ahmad in marriage my client Fatimah on the agreed mahr) and thereafter the representative of the man should immediately respond thus: Qabiltut tazwijali Muwakkili Ahmad 'alas sidaqil ma'lum (that is, I accepted this matrimonial alliance for my client Ahmad on the agreed Mahr). Now the marriage contract is in order. And, on the basis of recommended precaution, it is necessary that the words uttered by the man should conform with those uttered by the woman; for example, if the woman says: Zawwajituka ...... (i.e. I have made myself your
wife) the man should also say: Qabituttazwija ......(i.e. I accept the matrimonial alliance) and not Qabitun Nikaha.
2378. * It is permissible for a man and a woman to recite the formula of the temporary marriage (Mut'ah), after having agreed on the period of marriage and the amount of Mahr. Hence, if the woman says: Zawwajtuka nafsi fil muddatil ma'lumati 'alal mahril ma'lum (i.e. I have made myself your wife for an agreed period and agreed Mahr), and then the man immediately responds thus: Qabiltu (i.e. I have accepted), the marriage will be in order. And the marriage will also be in order if they appoint other persons to act as their representatives. First, the representative of the woman should say to the representative of the man thus: Matta'tu muwakkilati muwakkilaka fil muddatil ma'lumati 'alal mahril ma'lum (i.e. I have given my client to your client in marriage for the agreed period and the agreed Mahr), and then the representative of the man should immediately respond thus: Qabiltut tazwija li muwakkili hakaza (i.e. I accepted this matrimonial alliance for my client this way).
Conditions of Pronouncing Nikah
2379. * There are certain conditions for the Nikah recited for marriage. They are as follows:
(i) On the basis of precaution, the formula (Nikah) of marriage contract should be pronounced in correct Arabic. And if the man and the woman cannot pronounce the formula in correct Arabic, they can pronounce the Nikah in any other language, and it is not necessary to appoint any representatives. But the words used in translation must convey strictly the meaning of Zawwajtu and Qabiltu;.
(ii) The man and the woman or their representatives, who recite the Nikah, should have the intention of Insha' (i.e. reciting it in a creative sense, making it effective immediately). In other words, if the man and the woman themselves pronounce the formula, the intention of the woman by saying: Zawwajtuka nafsi' should be that she effectively makes herself the wife of the man; and by saying:Qablitut tazwija; the man effectively accepts her as his wife. And if the representatives of the man and the woman pronounce the Nikah, their intention by saying: 'Zawwajtu' and
'Qablitu' should be that the man and the woman who have appointed them as their representatives, have effectively become husband and wife.
(iii) The person who pronounces the Nikah (whether he pronounces it for himself or has been engaged by some other person as his representative) should be sane, and as a precaution, he should be baligh also.
(iv) If the Nikah is pronounced by the representatives or the guardians of the man and the woman, they should identify the man and the woman by uttering their names or making intelligible signs towards them. Hence, if a person has more than one daughters, and he says to a man: Zawwajtuka Ihda Banati (i.e. I have given away one of my daughters to you as your wife) and the man says: Qabiltu (i.e. I have accepted) the marriage contract is void, because the daughter has not been identified.
(v) The woman and the man should be willing to enter into a matrimonial alliance. If, however, the woman ostensibly displays hesitation while giving her consent, but it is known that in her heart, she is agreeable to the marriage, the marriage is in order.
2380. If, while reciting the Nikah, even one word is pronounced incorrectly, as a result of which its meaning is changed, the marriage contract would be void.
2381. * If a person pronouncing Nikah comprehends its general meaning, and has a clear intention of effecting that meaning, the Nikah will be valid. It is not necessary for him to know the exact meaning of each word, or to know the laws of Arabic grammar.
2382. If Nikah of a woman is pronounced to a man without her consent, but later both man and woman endorse the Nikah, the marriage is in order.
2383. If the woman and the man, or any one of them, is coerced into matrimony, and they give consent after the Nikah has been pronounced, the marriage is in order, although it is better that the Nikah be repeated.
2384. * The father and the paternal grandfather can contract a marriage on behalf of his minor son or daugher, or on behalf of an isane son or daugh-
ter, if they are baligh. And after the children have become baligh or the insane has become sane, he can endorse or abrogate it, if the contracted marriage involves any moral lapse or scandal. And if the marriage contract does not involve any moral lapse or scandal, but the na-baligh son or daughter calls off the marriage, then as an obligatory precaution, a Talaq or a renewed Nikah, whatever the case may be, must be recited.
2385. * If a girl has reached the age of bulugh and is virgin and mature (i.e. she can decide what is in her own interest) wishes to marry, she should, obtain permission from her father or paternal grandfather, although she may be looking after her own affairs. It is not, however, necessary for her to obtain permission from her mother or brother.
2386. * In the following situations, it will not be necessary for a woman to seek the permission of her father or paternal grandfather, before getting married:
(i) If she is not a virgin.
(ii) If she is a virgin, but her father or paternal grandfather refuse to grant permission to her for marrying a man who is compatible to her in the eyes of Shariah, as well as custom.
(iii) If the father and the grandfather are not in any way willing to participate in the marriage.
(iv) If they are not in a capacity to give their consent, like in the case of mental illness etc.
(v) If it is not possible to obtain their permission because of their absence, or such other reasons, and the woman is eager to get married urgently.
2387. * If the father or the paternal grandfather contracts marriage on behalf of his na-baligh son, the boy, upon attaining bulugh, should pay maintenance of his wife. In fact, he should start paying her maintenance before becoming baligh, when he is able to consummate the marriage. And the wife should not be too young to have any sexual relation with the husband. And in the situation other than these, there is a strong indication that she is entitled to maintenance from the husband, therefore a compromise should be carried out as a precaution.
2388. * If the father or the paternal grandfather contracts a marriage on behalf of his na-baligh son, they should pay the Mahr if the boy does not own any means, or if either of them undertakes to pay the Mahr himself. In other situations, the father or the paternal grandfather can pay Mahr from the boy's wealth, but it should not exceed the proper usual Mahr customarily given in similar cases. But if the circumstances demand that higher Mahr be paid, they can pay it from the boy's wealth, and not otherwise, unless the boy approves it after having become baligh.
Occasions When Husband or Wife Can Nullify Nikah
2389. * If the husband comes to know after Nikah that his wife had, at the time of Nikah, any one of the following six deficiencies, he can annul the marriage:
(i) Insanity, even if it is intermittent.
(v) Being crippled, even if it is not to the extent of immobility.
(vi) Presence of flesh or a bone in the woman's uterus, which may or may not obstruct sexual intercourse or pregnancy. And if the husband finds that the wife at the time of Nikah, suffered from 'Ifdha' - meaning that her urinary and menstrual tract have been one, or her menstrual passage and rectum have been one, he cannot annul the marriage. As an obligatory precaution, he will have to pronounce talaq if he wants to dissolve the marriage.
2390. * A woman can annul the Nikah in the following cases, without obtaining divorce:
(i) If she comes to know that her husband has no male organ.
(ii) If she finds that his penis has been cut off before or after the sexual intercourse.
(iii) If he suffers from a disease which disables him from sexual intercourse, even if that disease was contracted after the Nikah, or before or after the sexual intercourse.
2390. * In the following situations, if a wife refuses to continue with the matrimony and wishes to dissolve the marriage, then as a matter of precaution, the husband or his guardian will solemnise the divorce:
(i) If she comes to know after the Nikah, that the husband was insane at the time of Nikah; or if he becomes insane after the Nikah, before or after consummation of the marriage.
(ii) If she finds out that at the time of Nikah, the husband had been castrated.
(iii) If she learns that he suffered at the time of Nikah from leprosy or leucoderma.
2391. * If the wife annuls the marriage because of the husband's inability to have sexual intercourse, the husband should give her half of her Mahr. But, if the man or the wife annuls the marriage because of one of the other deficiencies enumerated above, and if the marriage has not been consummated, he will not be liable for anything. But if the marriage was consummated, he should pay her full Mahr. If the husband annuls the marriage due to the deficiencies mentioned in rule 2389, he will not be liable for anything if he has not had sexual intercourse with her. But if he has had sexual relation with her, then he has to pay full Mahr.
Women With Whom Matrimony is Haraam
2393. Matrimonial relation is haraam with women who are one's Mahram, for instance, mother, sister, daughter, paternal aunt, maternal aunt, niece (one's brother's or sister's daughter) and mother-in-law.
2394. If a man marries a woman, then her mother, her maternal grandmother, her paternal grandmother and all the women as the line ascends are his Mahram, even if he may not have had sexual intercourse with the wife.
2395. If a person marries a woman, and has sexual intercourse with her, the daughters and grand-daughters (daughters of sons, or of daughters) of the
wife and their descendants, as the line goes low, become his Mahram, irrespective of whether they existed at the time of his marriage, or were born later.
2396. If a man marries a woman, but does not have sexual intercourse with her, the obligatory precaution is that as long as their marriage lasts, he should not marry her daughter.
2397. The paternal and maternal aunt of a man, and the paternal and maternal aunt of his father, and the paternal and maternal aunt of his paternal grandfather, and the paternal and maternal aunt of his mother, and the paternal and maternal aunt of his maternal grandmother, as the line ascends, are all his Mahram.
2398. The husband's father and grandfather, however high, are the wife's Mahram. Similarly the husband's sons and the grandsons (son of his sons or of daughters), however low, are her Mahram, regardless of whether they existed at the time of her marriage or were born afterwards.
2399. If a man marries a woman (whether the marriage be permanent or temporary) he cannot marry her sister, as long as she is his wife.
2400. If a person gives a revocable divorce to his wife, in the manner which will be explained under the rules relating to 'Divorce', he cannot marry her sister during the Iddah. But if it is an irrevocable divorce, he can marry her sister. And if it is the Iddah of temporary marriage, the obligatory precaution is that one should not marry his wife's sister during that period.
2401. A man cannot marry the niece (brother's or sister's daughter) of his wife without her permission. But if he marries his nieces without his wife's permission, and she later consents to the marriage, it will be in order.
2402. * If the wife learns that her husband has married her niece (brother's daughter or sister's daughter) and keeps quiet, and if she later consents to that marriage, it will be in order. If she does not consent later, the marriage will be void.
2403. * If before marrying his maternal or paternal aunt's daughter, a person commits incest (sexual intercourse) with her mother, he cannot marry that girl on the basis of precaution.
2404. * If a person marries his paternal or maternal aunt's daughter, and after having consummated the marriage, commits incest with her mother, this act will not become the cause of their separation. And the same rule applies if he commits incest with her mother after the Nikah, but before having consummated the marriage with her, although the recommended precaution is that in this circumstance he should separate from her by giving her divorce.
2405. * If a person commits fornication with a woman other than his paternal or maternal aunt, the recommended precaution is that he should not marry her daughter. In fact, if he marries a woman, and commits fornication with her mother before having sexual intercourse with her, the recommended precaution is that he should separate from her, but if he has sexual intercourse with her, and thereafter commits fornication with her mother, it is not necessary for him to get separated from her.
2406. * A Muslim woman cannot marry a non-Muslim, and a male Muslim also cannot marry a non-Muslim woman who are not Ahlul Kitab. However, there is no harm in contracting temporary marriage with Jewish and Christians women, but the obligatory precaution is that a Muslim should not take them in permanent marriage. There are certain sects like Khawarij, Ghulat and Nawasib who claim to be Muslims, but are classified as non-Muslims. Muslim men and women cannot contract permanent or temporary marriage with them.
2407. If a person commits fornication with a woman who is in the Iddah of her revocable divorce, as a precaution that woman becomes haraam for him. And if he commits fornication with a woman who is in the Iddah of temporary marriage, or of irrevocable divorce, or in the Iddah of death, he can marry her afterwards, although the recommended precaution is that he should not marry her.
The meaning of revocable divorce and irrevocable divorce, and Iddah of
temporary marriage, and Iddah of death, will be explained under the rules relating to 'Divorce'.
2408. * If a person commits fornication with an unmarried woman and who is not in Iddah, as a precaution, he cannot marry her till he has sought forgiveness from Allah, and repented. But if another person wishes to marry her before she has repented, there is no objection. If a woman is known as a lewd person, it will not be permissible to marry her till she has genuinely repented, and similarly, it is not permissible to marry a man known for his lustful character, till he has genuinely repented. If a man wishes to marry a woman of loose character, he should, as a precaution, wait till she becomes Pak from her menses, irrespective of whether he had committed fornication with her, or anyone else had done so.
2409. If a person contracts Nikah with a woman who is in the Iddah of another man, and if the man and the woman both know, or any one of them knows that the Iddah of the woman has not yet come to an end, and if they also know that marrying a woman during her Iddah is haraam, that woman will become haraam for the man forever, even if after the Nikah the man may not have had sexual intercourse with her.
2410. If a person contracts Nikah with a woman who is in the Iddah of another man, and has sexual intercourse with her, she becomes haraam for him forever even if he did not know that she was in her Iddah, or did not know that it is haraam to marry a woman during her Iddah.
2411. * If a person marries a woman knowing that she has a husband, he should get separated from her, and should also not marry her at any time afterwards. And the same rule will apply, as a precaution, if he did not know that the woman was already married, and had sexual intercourse with her after Nikah.
2412. If a married woman commits adultery, she on the basis of precaution, becomes haraam permanently for the adulterer, but does not become haraam for her husband. And if she does not repent, and persists in her action (i.e. continues to commit adultery), it will be better that her husband divorces her, though he should pay her Mahr.
2413. In the case of the woman who has been divorced, or a woman who contracted a temporary marriage and her husband forgoes the remaining period of marriage, or if the period of her temporary marriage ends, if she marries after some time, and then doubts whether at the time of her second marriage, the Iddah of her first husband had ended or not, she should ignore her doubt.
2414. * If a baligh person commits sodomy with a boy , the mother, sister and daughter of the boy become haraam for him. And the same law applies when the person on whom sodomy is committed is an adult male, or when the person committing sodomy is na-baligh. But if one suspects or doubts whether penetration occurred or not, then the said woman would not become haraam.
2415. * If a person marries the mother or sister of a boy, and commits sodomy with the boy after the marriage, as a precaution, they will become haraam for him.
2416. If a person who is in the state of Ehram (which is one of the acts to be performed during Hajj) marries a woman, the Nikah is void, and if he knew that it was haraam for him to marry in the state of Ehram, he cannot marry that woman again.
2417. * If a woman who is in the state of Ehram marries a man who is n