Fiqh Second Semester 8-5-06 The book of Financial Transactions (trade)(sale) Scholars start with ibadaat because that is something that must be done constantly, then the muamalat because it deals with dealing with other people. Definition of sale Linguistically: baiya comes from bah which means to stretch your hand. Islamically: the exchange of an article of property with another article of property. Definition of money in islam: anything that can be exchanged for money. Types of selling: Is buying and selling halal in the first place? Yes Quran says “Allah has made trade halal and riba haram.” 2:275 Aspect of absence and presence of the commodity. 1) selling a present commodity – halal 2) selling a commodity that is described but not present – halal 3) selling a commodity that is not described and not present – haram Conditions of transactions: Necessary conditions of each valid transaction are five: 1) must have a seller 2) must have a buyer 3) must have a price 4) the article purchased 5) the offer and acceptance. Both seller and buyer have the following conditions: 1) must have reached puberty (shafi school – because you can be deceived) 2) sanity – insane cannot sell because can be deceived 3) consent – of both buyer and seller the article that is sold requires three conditions: 1) has to be ritually pure – cannot sell pigs (shafi and majority says cannot sell manure but hanafis allow the sale of things that have clear benefit. Proof: hadith jabar the Prophet forbade the sale of animals that were not slaughtered, and khamar” 2) has to be useful – cannot buy something useless even if you want to. Things like a jar of tears or an insect or something. 3) it has to be the property of the seller. The transaction is not valid unless there is a spoken agreement (offer and acceptance). In shafi school you can‟t rely on a price tag because it could have changed or been mislabeled. There must be verbal offer and acceptance. Other scholars say it‟s ok for minor things but major things have to have verbal. The reasoning is to eliminate any possibility of deception. This impermissible unspoken buying and selling is called bay al-mua3ta (from muata means to give)
Interest Riba linguistically means increment – ziyada. The word rubwa is like a small hill. Islamically, the definition: an agreement for a specific recompense whose equivalence to the merchandise is unknown according to the standards of the Law at the time of the transaction, or in which the exchange of the two properties transacted is delayed, or one of them is delayed. 8-6-06 The punishment for riba? It is the only sin in which Allah promised that the one who does it is like making war with Allah. “Fear Allah and give up what is remaining from interest” – ibn abbas said the one who does it will be given a sword and be asked to fight war with Allah. There are 70 types of interest and the least of them is like adultery with your mother in the sacred house. 2 types of interest: a) riba al fadl (usury of superiority) – lesser goods for better goods, etc. b) riba an-nasi‟ah (usury of increment) – this is the common one that is used here. You borrow 100 and pay back 130, etc. In sura ____ they used to delay the months and get benefit from the delay in time – Allah said this was added to their kufr. Riba Al-Fadl “to exchange Gold, Silver, or Food with the same type but different weight due to the difference of quality.” Ex. To exchange 1g of 24k gold with 50g of 14k gold – this is riba al-fadl. Hadith “the selling of gold for gold is riba except if the exchange is from hand to hand and equal in amount, and similarly, the selling of wheat for wheat is riba unless it is from hand to hand and equal in amount, and the selling of barley for barley is riba unless it is from hand to hand and equal in amount, and dates for dates is riba unless it is hand to hand and equal in amount.” Shafi school says this hadith is supposed to draw an analogy for all types of food. Because dates is nonessential, it is fruit, and wheat and barley are not two types, it‟s just food. So all food is riba. Other schools disagree. Hadith “don‟t sell gold for gold unless qual in weight, nor silver for silver unless qual in weight, but you could sell gold for silver or silver for gold as you like.” Conditions of exchange in these types: There are two necessary conditions for exchanging gold, silver, food: 1) equivalence in amount. 2) Immediacy Is it permissible to exchange a dell laptop for two sony laptops? Yes because it‟s not gold, silver, food. Riba An-Nasi‟ah The increment of money based on time. It is forbidden because it is injustice. Modern interest justifies itself by saying that borrowers will profit from their loans. However, people aren‟t really doing this – loan on a home for example – that money isn‟t always being invested and the interest rate is certainly higher than the growth of the economy. What about buying on increment? Making a payment plan is halal.
8-12-06 Selling of „Inah Definition: to purchase a commodity and pay the price later then sell it to the original seller with a lesser amount cash. Example: I show up with nothing to buy a car. I promise to pay $30,000 over time. Then I resell the car to the dealer for $25,000. Basically I got a loan and the car was just a symbolic intermediary. Shafi considers this permissible but the vast majority of scholars say it is riba because the object being sold is simply symbolic. Shafi says you have to prove it‟s haram and Allah made trade lawful. So they bring the hadith “when you use „3nah and abandon Jihad then Allah will abandon you”. Shafi says it‟s not authentic which a good case can be made and then they said prove that this is al-3nah. All the later shafi scholars like an-nawawi said it was haram. Principles of forbidden transactions Three major reasons to make a transaction haram: 1 – usury 2 – deception 3 - ?? what constitutes deception? Any type of selling where you don‟t know if you‟re gaining or selling. The Prophet (saw) forbade stone selling. This is like if you go to go a land and you pay money to buy as far as you can throw the stone. Selling by touching. Means I wont tell you anything, you just touch it and figure out what you want. The Prophet put his hand into a thing and saw it was wet inside – he asked the man “what is this?” and the man answered the rain came, and he said “tell the people.” Future selling – cannot buy next season‟s harvest because it could be wiped out. Or selling what‟s inside this pregnant cow. Gambling Reasons for prohibiting gambling. Allah said “alcohol, idols, gambling is filth so avoid it. Satan wants to create animosity and to turn you from the remembrance of Allah.” Sheikh says more time is spent gambling than anything else. It creates animosity because thousands lose for every one winner. Insurance. If you pay and something happens, you might get more money back. If you pay and nothing ever happens, then you paid for nothing. 8-13-06 The Right of Option Buyer and seller have the right to cancel a transaction within 3 days if they agreed on that. The option to cancel could be given only if they want to and only to one of them if they want to. Shafi school says only 3 days is enforceable. The malikis and hanbalis say it‟s unlimited as long as you agree. What‟s the proof that Islam allows this? At the time of the Prophet (saw) there was an old blind man that people used to take advantage of – he asked the Prophet (saw) about it and the Prophet (saw) replied that he should say he 3 days to return it. Hadith of habban ibn munkif. The choice of defect. If the buyer finds a defect, then he can cancel transaction. However, if the buyer knew about the defect yet he didn‟t mind at the time of sale, he cannot come later and cancel the transaction.
Definition of Defect – any flaw that diminishes the article or its value to a degree that hinders a valid purpose provided that such an imperfection does not usually exist in similar merchandise. Example – car with gas leaking, cow without toe. They used to sell sheep – what‟s intended is milk and sheep and wool. They used to not milk the sheep for 3 days to make it appear full. This was called musarraa (which means that which is left ie they would leave the sheep alone to make it appear full) – the Prophet said whoever buys a sheep like this can either return it or he can go take some money back for the depreciation. 9-9-06 Selling of salam (selling in advance) Buying in advance a described merchandise Pillars of buying in advance (7) 1. to be described in a way that removes any delusion 2. the merchandise is absent at the time of the transaction (doesn‟t mean it‟s haram to do so i.e. pay not and pickup later, but it‟s not salam, it‟s something else) 3. the merchandise will usually arrive on time (if the seller knows it won‟t, this transaction is void) 4. the price is to be received when the agreement is made. 5. the merchandise is within the ability of the seller to deliver (must be something that can be delivered – can‟t sell fish in the sea, etc.) 6. the location of the delivery is mentioned. 7. the merchandise bought should be known by description (this means in general – how the merchandise is known) narrated ibn abbas when the Prophet came to al-madina, they were paying one and two years in advance for fruits, so he said “those who paid in advance must do so for a specified measurement and weight for a specified time” Suspension of financial disposal 6 types of people that cannot dispose of their property 1) the child (he‟s a minor, he may be deceived) 2) the insane 3) the spendthrift (very subjective – this is determined by a judge)(abdallah ibn jaafar was too generous and his family complained – his assets were seized) 4) the bankrupt 5) the sick on his deathbed (up to one third because this is what the Prophet (saw) allowed for saad when saad thought he was on his deathbed) 6) the slave
9-16-06 Bankruptcy Happens when a creditor asks for his money and the debtor is unable to pay off his debts so the ruler or his deputy declares the debtor bankrupt. There are two cases when the debtor refuses to pay his creditors: 1- the debtor has no money. 2- The debtor may have money so he‟s imprisoned until there‟s proof that he‟s bankrupt. If there is more than one creditor then the money is divided in proportion to their debts.
If the buyer didn‟t have the merchandise in his possession, and the merchandise is lost, how will he be liable for this loss? Islamically, if the buyer doesn‟t have it, it‟s the responsibility of the seller. If the buyer and seller dispute over the price, then they swear back and forth
Settlement of two types: Absolution or acquittal (ibra‟) – taking money Exchange (mua‟wadah) – taking an object to exchange instead Confession (Iqrar) Where someone borrows money and then denies it, their later confession is absolute Hawala (transfer) Transfer of the rights. 1. the approval of the debtor 2. the acceptance of the creditor 3. has to be agreement 4. the similarity of the debt between the debtor and the person. Surety (kafalah) 2 kinds: Bail (surety of the person) Surety for wealth or property It‟s permissible to be liable for other‟s financial or personal obligations. 9-17-06 There is something called “wadee‟a” it means when you give something to someone you trust to hold it for you like the people used to do with the Prophet in the days of jahiliya. When you deposit into a bank, it‟s called wadee‟a also. Deposits: * it is forbidden for someone to accept a deposit if he can‟t protect it. * if the entrusted person protected the deposit as usually then it was destroyed, he‟s not liable for anything. * if the deposit was destroyed or lost because the entrusted person didn‟t fully protect it then he‟s liable. Borrowed items: It‟s permissible to borrow an item with two conditions: 1) there is benefit in it (lawfully, cannot borrow alcohol) 2) the item can last after using it (cannot borrow food to eat because it cannot be returned if the borrowed item was destroyed then the borrower is liable and he has to pay its value or give back a similar article. (unless it‟s not your fault. If you just press the button on a cell phone or just turn the ignition in a car and something breaks, you‟re not liable since you were using it properly) Usurpation: Ghasb: - taking someone‟s property unlawfully. It‟s like robbery and stealing except you don‟t hide yourself, you do it openly. You just go up to someone and take their stuff. - This is a major sin as Allah describes in the Quran. - Prohibited to sell or buy an item purchased unlawfully. - You are always liable for what happens because you‟re a transgressor - (if you gave it back to someone and it depreciated, you‟re responsible. If it appreciated, you don‟t‟ benefit, you take nothing as the Prophet (saw) said).
Rent: - exchanging the services of an article with money - it is permissible to rent any article of property that can be sold while it can last after using it‟s benefits. (can‟t rent food) - in general, it‟s permissible to sublease unless you specify no. - If the tenant dies the owner can‟t posses the property until the period ends. Gift: - giving an article of property without anything in return.
9-23-06 Definition of company – shareka (like shirk, to share) Linguistically, mixing. In sacred law, the cooperative company, meaning the right is shared by more than one person without restriction. (shafi definition, there are many types of companies generally, but shafi only allows this) The company is an optional contract, Conditions of a company: 1) to be established by money 2) to be of the same type from both sides 3) to mix both monies 4) to allow each other to act freely 5) the ratio of profit and loss is according to the monies *what types of contracts are optional? Iqrar is obligatory with someone else. Between you and Allah it is optional. Wadee‟a is optional, gift is optional.
9-24-06 Lost and Found Four types of found articles: 1) what remains (like money) 2) what expires (food) 3) what can remain with work (like a fish in a fishtank) 4) what requires expenses (like animals like sheep, cows – these things probably wont expire on their own ) In general, you do what is best for the owner of the item. What remains - You have to give things back to people if they ask within one year. You have to look for the owner. The Prophet (saw) said anything you find, know the amount, the description. With money, you don‟t spend it until one year passes. What expires – you use it. If the owner comes back, you are liable for the amount of it. What can remain with work (like a fish in a fishtank) – like a sheep, you purchased some grass and a pen, and then the owner came. You ask for your expenses and you give him the sheep. What requires expenses – similar to remain with work, but it‟s better to leave it especially if it‟s in a lonely place that the owner that can find it. In Mecca, there is a different ruling because of the hadith of the Prophet (saw), if you see something in mecca you leave it, although they have a lost and found now and perhaps you can do it.
Endowment Conditions of permissible endowment: 1) the article of property remains while it‟s used 2) the permanence of the outcome and the presence of the capital 3) on a permissible thing Conditions of a company 1) to be established by money 2) to be of the same type of from both sides (cannot mix $10k with 500 laptops according to shafi – must be money or laptops from both sides) 3) to mix both monies 4) must allow each other to act freely – (not an employee) 5) ratio of profit and loss is according to amount invested. (60/40 investment splits profits 60/40)
9-30-06 The book of Marriage This book is placed into different areas when studying fiqh because it‟s part ibadaat and part transactions so some put it after ibadaat and some put it after transactions, etc. Definition of marriage – a contract that allows the man to enjoy the woman and limits the woman to enjoy the man. Linguistically, nikah means to hug, from tree leaves touching each other. Ruling on marriage: in general, it is recommended (except dhahiri who says it‟s must) Four conditions for marriage: 1) offer and acceptance (ijaab and kabool, a contract) 2) wali 3) Mahr 4) Two witnesses Evidence: the Prophet (saw) said “there is no marriage without wali, 2 witnesses, and mahr” Evidence: it must be a contract It is permissible for the free man to have four wives and the slave to have two wives. Why did Islam allow men to marry more than one woman? Islam did not allow it, Islam limited it. Allah allows this, that‟s enough There are more women than men. You tell the woman she cannot be a wife, she will become a mistress. Looking to women Six types: 1) a foreign woman – non-mahram. Cannot look. 2) wife – permissible to look at everything (shafi says it‟s not recommended to look to the private parts. Based on a weak hadith) 3) his mahram – (someone you cannot marry “permanently”) – shafi school you can look to everything except what is between the belly and the knee 4) for marriage – yes, permissible (shafi says face and hands.) (if you want to marry her, you can see her hands and her face according to shafi and this is the majority school. the face shows you her beauty, her hands show you her body) 5) For treatment – only if needed, then look to what is needed. (if there are female doctors, then not needed)(a female non-muslim is preferred to a male muslim) 6) For testimony – you can look to her face for verification in witnessing
Six conditions of the wali and a witness: 1) islam 2) puberty 3) Sanity 4) Freedom 5) Has to be a male (evidence, the hadith says two male witnesses) 6) Trustworthiness (Consequences, if the father of the bride is an alcoholic, then he‟s not trustworthy and he can‟t be the wali.) In the case of marriage of a woman from the people of book (jew or Christian) the wali doesn‟t have to be a Muslim. (not a hindu) 10-01-06 Types of women – two types: 1) virgin 2) non-virgin in shafi school and the majority of scholars say that it‟s permissible for the father to mary his daughter to someone without her consent when she is virgin. Proof: hadith says a girl can be forced, but it‟s debated. Still, majority of scholars agree that a girl under puberty can be forced. It is prohibited for a father to marry his daughter to someone if she was not virgin without her consent and reaching the age of puberty. All scholars agree that besides father, nobody can force a girl to marry, guardian or not. There are levels of wali: first father, then grandfather (who can also force the girl), then brother, then brother‟s son, then uncle. (this sequence comes from the rules of inheritance). If the wali refused to marry the girl to a qualified suitor, then his guardianship is removed and the Muslim ruler marries her to the suitor. Forbidden women Thirteen women forbidden on the husband to marry permanently: Seven of these forbidden forever because of blood relation: 1) Mother 2) Daughter 3) Sister 4) Father‟s Sister 5) Mother‟s Sister 6) Brother‟s daughter 7) Sister‟s daughter Two are forbidden forever because of nursing: 1) the nursing mother 2) the foster sister Four in-laws are forbidden forever: 1) mother in law 2) step-daughter (daughter of your wife from previous marriage) 3) father‟s wife (step-mother, even if they divorce) 4) Son‟s wife (even if they divorce)
Three women are forbidden on the husband to marry temporarily: 1) the wife‟s sister 2) the wife‟s paternal aunt 3) the wife‟s maternal aunt Mahr No limit to the minimum or the maximum mahr, but the minimum is better. Hadith “the most blessed woman is the one accepts the least in mahr” It is permissible for the woman to marry someone for a benefit instead of money. It is recommended to mention the amount of Mahr before Nikah. If no mahr is agreed upon, you look to what was done by the other women in the wife‟s family. If there is divorce before the marriage is consummated, then you pay HALF the mahr. 10-07-06 Choice of terminating the marriage without consequence. The husband can divorce the wife without paying mahr in any of four conditions: 1. Insanity – voidable at the choice of the husband, in this case you don‟t pay the mahr in one of four conditions. 2. Leprosy - ibn abi joon – the Prophet (saw) married this girl and he saw on her a light or dark spot. He then sent her back to her parent‟s house saying “you deceived me.” 3. Missing private part – impossible to have sex 4. Inability to mate with spouse. Perhaps psychological, etc. The wife has this choice in marriage if there‟s the same four things in the husband. In these cases, if she chooses to, she can keep the mahr. However, the judge will give the husband one year to cure the defect in the case of #4. Walima – literal meaning is feast. Inviting people to a meal for wedding is recommended. Accepting the invitation is a must. Rights of the Husband and Wife He has to provide for her, maintain her, etc. She has to protect his house in his absence, obey him. Rebelliousness * If wife disobeys her husband then he should advise her as the first step. Nushuz means disobedience. * next he she doesn‟t listen, then he can leave her bed * next then you can hit her (with certain conditions) Remember, you cannot bruise her, you cannot hit her in the face, etc. We interpret this by the sunnah – the Prophet (saw) never hit any of his wives. Then there‟s counseling, then there‟s divorce. The husband divorces the wife. If it‟s the other way around, the wife can get khul
Khul‟ Separation with payment from the wife‟s side. Khul can be perfomed at any time unlike divorce. If there is a legit reason, she gets to keep the mahr, if there‟s no good reason, she has to pay some of the mahr back, maybe all – the judge decides. Fatima bint qays came to the Prophet (saw) and said my husband has nothing wrong with him but I don‟t like him. The Prophet (saw) did you return back the piece of land that he gave you, she said yes and then the Prophet (saw) divorced them. Hadith “a woman who asks for a divorce without a reason will not smell the fragrance of paradise. End of First Term
11-04-06 Divorce Islam is the perfect religion, therefore divorce is allowed. In some religions like Christianity, divorce is not allowed. It is among the indications of the perfection of Islam that divorce is allowed. Is it considered it bad thing or a good thing in Islam? It‟s a last resort, but does not encourage or prohibit it. Definition of divorce – “the separation of the husband and wife with a specific word (of divorce)” Two types of divorce: 1) manifest (talaq saree3h) – does not require intention, even if you say it on accident. The prophet (saw) said “there is no joking in 3 situations: divorce, freeing the slave, and marriage” - the words of manifest divorce are three: talaq, firaq (faraqtuki: I left you), and Sarah (saraHqtuki: I release you). Why these three words? They are mentioned in the Quran. Ex. Sura ahzab when Allah gives the Prophet the option to divorce his wives, he says “saraH” – or release them. 2) ambiguous (talaq kinaya) – unclear divorce requires intention. - ambiguous words of divorce are like: “you‟re not my wife anymore” “you‟re free” If the wife says “I divorce you” – does that count as divorce? No, what if the husband says “I agree” – then they are divorced. Two types of women in divorce: 1) A type that should be divorced in a specific time. So their divorce could be according to the sunnah or according to the bid‟ah. - no divorce during a woman‟s menses, also until there is purification after sexual relations, etc.discuss more later 2) A type that could be divorced anytime. And those are divided to four: - the young woman - the old woman - The pregnant - the woman who had khul; before consummating the marriage. Divorce is only 3 times: The free man can divorce his wife 3 times. The slave can divorce his wife twice. Conditional divorce is valid as long as it was continuous. It‟s permissible to connect the divorce to a description or a condition. What about the person who repeats “I divorce you” 100 times. 3 times is divorce and then 97 times is a sin because you‟re transgressing the bounds of Allah. What about the person who is unmarried but says “if I marry that person, she is divorced” and then they marry? Some scholars say they are divorced, shafi says no, you have to be married in order to divorce. Insane person can marry since the wali approves it. However, an insane person cannot divorce. Can a young boy marry? The guardians of the boy have to approve it. 4 types of people their pronouncement of divorce doesn‟t count: - the young boy - the insane - the sleeping person - the forced man (if your life is in danger, or it will cause you harm) - the drunk (in shafi, the drunk person is excused – the line is drawn when his words are not clear or when he is unable to distinguish between right and wrong)
11-05-06 Fiqh Iddah – if a husband divorced his wife once or twice as long as her iddah is not over. Once her iddah is over, he can't marry her again without a new contract. So two types of Talaq – revocable (talaq ar-raj3e) or irrevocable (talaq ____) how long is the iddah? Three Quruu' – this has two contradictory meanings – either means cycle or purification. If it means cycle then you wait until 3 periods end. If it means purification then you wait for 3 non-menses cycles to end. hanifa and ahmad think that Quruu means menses shafi and malik think that Quruu means purification how do you take your wife back? Some scholars say by having sex she is automatically returned – shafi says that he has to say I am taking you back. The reason is that it's just like the marriage contract. Can she refuse to have him back? No, her consent is not needed even though it's like a marriage contract. The ayah says “the husbands are more worthy of having them back” - it doesn't say they are both worthy of having each other back. What if the iddah expires and someone proposes and then the husband and comes back to propose again? The husband gets priority unless the woman says no because of the same ayah. The permanent divorce if the husband divorces his wife three times then he can't marry her again unless five conditions are fulfilled: 1. Her iddah is over 2. She marries another man 3. They consummate the marriage. (the man who agrees to just marry a woman and have her divorce him so that she can marry her old husband – he is like a borrowed mule.) 4. she is divorced 5. her iddah is over why 3 cycles? It's the law of Allah. Also, to see if there is a pregnancy, perhaps the husband will want her back and also to presume paternity Ela' – a husband takes an oath not to approach his wife forever or for a period over 4 months then it's considered Ela'. The man who did this is called “Mulee” which is the word used in the Quran. Jahilia arabs used to do this to torment a woman – she could not remarry because she is his wife and she has to just sit here. Islam says either treat her like your wife or divorce her. What happens is if after 4 months, if the woman complains, the judge will ask the husband to either divorce his wife or resume marriage and pay a kaffarah. What is the kaffarah? Ela is an oath so you break the oath and pay kaffarah for the oath which is either you free a slave or feed 10 people or clothe them. If you cannot do this, you fast 3 days. Thihar – taken from the word thahr which means back. Jahili arab habit that a man would say to his wife “you are like the back of my mother” - this is discussed in sura mujadila (the ones who was arguing/discussing with the messenger) – a woman aws as-samila complained that her husband said this to her. Scholars agreed this is a sin because your wife is not like your mother and the Quran says this is a false word so it's sinful. If a husband says this to his wife and he didn't follow up this with divorce then he's nullified his saying. Has to pay kaffarah, first free a slave. If you cannot, then you fast 2 consecutive months, if you cannot then fast 60 poor people.
Pregnant woman divorced – if she has her baby, the iddah is finished and she can remarry. 11-11-06 Li‟an (imprecation) – accusing the wife of adultery. In general it‟s not different. If a husband accuses a wife, he can still be punished with 80 lashes like any other woman unlike li‟an. What is the basis for li‟an – it happened during the life of the Prophet (saw). A companion ( uwaimir al „ajlani) asked asim and asked “if a man saw another man with his wife and he killed him, what are you going to do? Punish the man for murder?” please ask the messenger (saw). So asim asked and the Prophet didn‟t like the question. Asim returned and said look what you did to me, I upset the Prophet (saw). So Uwaimir asked the Prophet himself and the P said there are ayats revealed for your situation. Sura noor 6. And for those who launch a charge against their spouses, and have (in support) no evidence but their own,- their solitary evidence (can be received) if They bear witness four times (with an oath) by Allah that They are solemnly telling the truth; 7. And the fifth (oath) (Should be) that They solemnly invoke the curse of Allah on themselves if They Tell a lie. 8. But it would avert the punishment from the wife, if she bears witness four times (with an oath) by Allah, that (her husband) is telling a lie; 9. And the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the Truth. If a husband accuses of wife, he says in front of everybody “I bear witness I said the truth in concerning what I accused my wife with adultery” x 4 and the 5th time he says “May the curse of Allah be upon me if I told a lie.” Then the wife is worthy of the punishment of stoning unless she does the li‟an as well. “he told a lie” x 4 and the the fifth time “may the wrath of God be upon me if he told the truth” A lot of this is to avoid paternity of a child that‟s not his? What about DNA? The Prophet said “if the child resembles such and such then we know” etc and uwaira said he would have committed murder.. Consequences of Li‟an: 1) he wont be punished – if he does lian 2) she should be punished – if she does not do lian 3) the denial of the relation between him and the baby (the child becomes ibn ummi) 4) separation forever – they can never marry each other no matter if she marries again or not Types of Iddah: For a widow – 4 months 10 days Divorced woman – 3 cycles or 3 months if she has no period Pregnant – always until she delivers. Divorced before consummating – no iddah at all (sura ahzab) if a husband divorces his wife, who pays for her? If she is during the first two Iddah‟s she still gets provision (she‟s still his wife) If the divorce is irrevocable (third divorce), she gets shelter, but no provision Ihdad Means Iddah for the widow (specifically means the mourning period of the widow) The widow mourns 4 months and 10 days. Evidence is from the Quran – there‟s also a hadith that supports it. Normally mourning is 3 days. Ihdad is a must . does not matter if wife does not miss husband.
What does mourning include? 2 things: no adornment, no perfume. (big misconception in the Muslim world that you have to wear black – there‟s no evidence for this). The woman during ihdad should stay at home except for a need. Nursing a child If a child is nursed, what counts as making him a foster brother/sister to the others that you suckled? 1) child must be 2 years or younger 2) quantity = 5. in bukhari Aisha said “it was revealed from the Quran 10 full nursings makes the child forbidden on the mother, then it was abrogated to 5”. This is the opinion of imam shafi and it is the correct opinion. ** whether the child sniffs the milk through his nose or drinks it through a bottle, it‟s all the same. 11-12-06 Providing for Parents It is a must under 2 conditions: Poverty & sickness Or Poverty & insanity. So poverty is always a condition – if your parents are rich, you don‟t have to provide for them. The conditions sick and insane go to her ability to provide for herself. If she‟s old or she‟s unable to work or otherwise provide for herself, then the child is obligated to provide. The Prophet said “you and your property are your fathers” – scholars differed about this hadith – some say that even if he‟s rich and he asked for something, you have to give it to him because he is the reason you are here. Provision for children is a must in 3 cases; Poverty and (childhood or sickness or insanity). What if your parents or children are not muslims? It doesn‟t matter, you have an obligation to them. Child custody The mother has the right of custody until the child is 7. Then he‟s given the choice with whom he wants to stay. (the age of 7 is not set in stone – it‟s the age of distinction when the child can tell the difference between right and wrong) Hadith: the prophet told a female companion “you are more worthy of him as long as you don‟t marry” the unmarried parent has priority whether father or mother Hadith: a boy was brought to the prophet and the prophet let the boy choose which parent he wanted to go to. These are situations when it is in dispute. People can voluntarily do what they want. Conditions for custody (7) 1. sanity 2. freedom 3. religion (has to be muslim) 4. chastity 5. honesty 6. residency 7. unmarried The book of offences: Jinayat and Dinayat – crimes of punishment and crimes of blood money
Murder Categories of Killing 1. deliberate killing (Qatl al-3am) 2. by mistake 3. deliberate by mistake (shubh al-3am) Deliberate Killing To hit someone with an instrument that is used for killing with the intention of killing him. In this case, we use Qisas – we use capital punishment. If the relatives of the murdered forgive then there‟s a heavy diyah that is paid from the killer‟s money. There are different types of diyah we will study later. (diyah mudallala and diya mughaffafa – both situations involve 100 camels etc) Accidental killing To throw something and hit someone with it and he‟s killed because of that. Like hitting someone with your car are throwing a rock. In this case, can the relatives demand your death? No, there is no Qisas, but there is a decreased blood money paid by the male relatives of the one who made that mistake. Has to be paid within 3 years. Deliberate by mistake To hit someone intentionally and he‟s killed with something that doesn‟t kill usually. This is not like when you hold someone down, it‟s like if you think if I hit him in the head he‟ll be unconscious for an hour, but he dies. In this case, there is no Qisas but there is increased blood money on the male relatives (it‟s about 30k these days) Four conditions for Qisas If one is missing, we do not apply Qisas 1. the killer is not the father of the victim (we never execute a father who kills his child) 2. the killer is not insane (not responsible for his actions) 3. the killer is not a child 4. the killer is free and the victim is slave OR the killer is muslim and the victim is kaafir 11-28-06 (makeup days for 11-24 & 11-25) Types of Diyah (blood money) is of two types: Increased diyah: 100 camels 3 types of camels – 30 camels hiqqah, 30 camels jadda3, 40 camels khalifa (pregnant she-camel) Decreased diyah: 100 camels 5 types of camels – 20 hiqqah, 20 jadda3, 20 bint makha, 20 bint laboun, 20 ibn laboun (4 types are she camels and 1 type is male) We don‟t have camels – the opinion of imam shafi is that you use the value of camels. Exceptions for the decreased diyah (situations where it becomes increased diyah even if it was a mistake) 1. if he killed in the haram 2. if he killed in the sacred months (dhul qaida, dhul hijja, muharram, then rajab) 3. if he killed a relative remember, in the case of increased diyah for deliberate killing, it is only permissible if the family forgives and agrees to accept diyah. started with the story of abdallah, the father of the messenger when abdal mutalib had to pay 100 camels to save his life. It was established after that
sunan tirmidhi about the types of increased diyah and it also says “and whatever they agree, they can take” – so you can change the amount. If 20 people conspire to kill one person, they are all killed. Famous incident in the time of omar where he killed many people from yemen because they killed one person. The diyah of a woman is half of a man for killing by mistake. It has to do with responsibilities – it‟s like inheritance. Evidence – at the time of omar and othman, they judged for that amount. These stories are narrated by imam nawawi, etc. They considered it like ijma, even though it is not reported as ijma. If a Christian or jew is killed, the amount of diya is 1/3, or 33 camels, in killing by mistake. Evidence is from narrations from the companions – omar, Othman, and ali all ruled by this. sheikh might disagree with this but this is the shafi school. Paying the full diyyah not in the case of killing – 15 cases: 1. the two hands 2. the two legs 3. the tongue 4. the two eyes 5. the two ears 6. the two eyelids 7. the nose 8. the two lips 9. the ability of speech 10. the eyesight 11. the hearing 12. the smelling 13. the sanity 14. the private part 15. the testicles the evidence for these things: hadith of amr ibn hazm (ra) – narrated by an-nasa‟I and al-baihaqi. Regarding the injury of any ogan or limb – like breaking a bone or rendering someone lame, etc. Hukuuma – the judge decides Types of injuries 1. jaifah: which reaches inside the body (of the neck or hest or tummy) there‟s 1/3 diyya. 2. ma‟mumah: which reaches the brain – 1/3 diyya. 3. Munaqilah: which moves the bones from their place – 15% 4. Hashimah: which breaks the bone – 10% 5. Mudiha: (from wada, peels) – it peels the skin and flesh – 5 camels. Muslim kills Muslim unjustly, then he has to do kaffarah, except in 3 cases: 1. murderer 2. apostasy 3. adulterer the kaffarah is freeing a slave or fasting two consecutive months. Evidence is sura nisa. You pay the diyyah regardless – kaffarah is for your sin.
11-29-06 (makeup for 11-24 & 11-25) Thus far the punishments we are talking about are between men. Now we will talk about the punishments that are the right of Allah.
2 types of adulterer: Muhsan – the one who consummated a legal marriage. Not Muhsan – the one who is not legally married. Punishment for the Muhsan is stoning to death. Why is the punishment so harsh? It is not merely doing the act, it is the punishment for doing the act and being seen by 4 people. This was also the punishment in Judaism. Evidence – the ayah is abrogated in recitation but the ruling is still there. How did it happen? Maiz and ghamidiyyah came to the Prophet (s) and he turned away from them, once they insisted, he had them punished. Also, adultery is so serious which is why it‟s forbidden to be alone with a foreign woman. Allah doesn‟t say “don‟t commit adultery”, Allah says “don‟t approach adultery” – so we don‟t come close to it by being alone, etc. Punishment for the non-Muhsan is 100 lashes. Second ayah of sura noor. Also, another punishment is exile for one year. Why? It gives you a chance to recover your reputation and reflect what you did. Some scholars say the exile is abrogated, but imam shafi says the exile is still there. Conditions of Ihssaan (4) 1. reaching the age of puberty – remember, no age limit on marriage. Pen is lifted doesn‟t apply here 2. sanity – pen is lifted 3. freedom – slave belongs to master 4. validity of marriage – must be a valid marriage homosexuals are like adulterers – opinion of imam shafi. Other opinions is throwing them off a building or throwing them in fire. So according to shafi, if he‟s married to woman, then stoning, if unmarried, then 100 lashes and exile. Remember, no gay marriage in islam – allah created mates from the other gender.
Punishment for slander (this is only talking about accusation of fornication) Whoever is accused someone of adultery is whipped 80 times with 8 conditions, 3 pertain to accuser (evidence is in sura noor) 1) accuser must be adult (pen is lifted counts here) 2) accuser must be Sane 3) accuser cannot be father of accused (judge can punish something else, but not this punishment) (you are the property of your father) *these 5 apply to accused* 4) accused must be Muslim 5) accused must be Sane 6) accused must be Adult 7) accused must be Free 8) accused must be Chaste Acquittal of punishment the punishment of the slanderer is removed with any of three things: 1. corroboration by witnesses
2. 3.
forgiveness of accused in the case of Lian – swearing back and forth
Punishment for Drinking Whoever drank alcohol or intoxicating drinks is punished with 40 lashes. It is permissible to double the punishment to 80. Evidence: The prophet (s) used to punish 40. at the time of abu bakr it was 40, at the time of omar, it started at 40, and doubled to 80. Omar (ra) asked the companions and they said that once a man is drunk, he starts to tell lies, so you can punish him for that drunkenness as well. Punishment is due with one of two things: Established by evidence by 2 witnesses or Confession seeing someone drunk, seeing someone with alcohol, it‟s not enough – make excuses, he could have been forced, he could be destroying alcohol. Theft Cutting the right Hand. Qira‟a of ibn masood said right. It is an odd narration but it is supporting evidence. 3 conditions to apply punishment: 1) adult and sane 2) nisab of stealing – quarter dinar (about 10 bucks) 3) he should steal from Hirz (means the place where other people‟s properties and usually kept). Sheikh recalls very famous incident from Saudi where a man steals a car. Whenever hadd is applied, it takes 3 judges, the 3rd judge said no because the owner left the car turned on with the keys in and the judge said the owner encouraged and the Prophet (s) said to avoid the hadd through suspicion. 4) no suspicion in taking that money – the father stealing from the son, the wife can steal from the husband. There is a suspicion that the money is earned or for provision – the father is supposed to spend on the son, the husband on the wife, etc. (in the time of Omar, people were starving to death, and he suspended it) Thugs and Brigands (highway robbers) What is the difference between this and stealing? This is by force and openly, stealing is sneaky and the thief is usually ashamed. Highway robbers are of 4 types: 1) if they kill without taking money, then they are killed 2) if they kill and take money, they are killed and crucified 3) if they took the money without killing, their hands and feet are cut off (one hand and one foot opposite ends) 4) if they terrified without killing or taking money, then they‟re punished or imprisoned. Evidence for these cases. Allah says in sura maidah “indeed the only punishment for those who fight Allah and his Messenger and cause corruption is they are killed, or crucified, or their hands and feet are cut off, or they are exiled, and there is a painful punishment in the hereafter” What if they repented? They are forgiven. Next ayah says “except those who repented before they are caught” But he‟s liable for violations against others – if someone kills 4 people and take their money. Then they repented and took the money but they were caught by authorities. They are still liable for the 4 deaths. That does not mean the crucifixion or cutting hands and feet those are the rights of Allah– it means diyyah or qisas. The apostate Whoever rejects Islam after accepting it is given 3 days, if he did‟nt repent then he‟s klled and buried as a non Muslim.
The one who does not pray after 3 days is also killed but he is killed as a muslim and he is buried with muslims. 12-02-06 The book of Jihad Literally it means striving and struggling, In fiqh, it means “fighting the enemies of Allah in the cause of Allah” That means fighting your muslim brother, even if you have to, that is not jihad. You may be rewarded if your actions are good, but it is not jihad. Fighting for your race, your country, etc. for whatever worldly reward is not jihad. Conditions of jihad 1) Islam 2) Puberty 3) Sanity 4) Freedom 5) Manhood 6) Free of sickness 7) Ability to fight Either you die as a martyr or you win, and if you win, there are captives: Captives – two types 1. type that is enslaved because of capture – women and children of disbelievers (we do not kill or ransom women and children) 2. a type that is not enslaved and the imam has one of four options what to do with them (only for men): a. receiving a ransom b. forgiveness c. killing them d. enslaving them is this justice that we enslave people? Slavery in Islam is not based on race or money, etc. It is based on deficiency in religion – disbelievers that were fighting Muslims. Could be a rich white man but he fought muslims. So our slavery is not a bad thing. We do not go out picking fights with people. We defend ourselves or we correct injustices, so that means if you got enslaved, you did something to bring it on yourself. Whoever accepted Islam before capturing him, then his life money and children are protected. Evidence – osama ibn zaid was fighting someone who said “la ilaha illallah” and osama killed him. The prophet kept asking him “did you kill him after la ilaha illallah” and osama said “he only said it fearing death” and the prophet said “did you look inside his heart?” and osama said later “I wish I did not accept Islam until after this” because he felt so bad. If a boy becomes Muslim if (3): 1. one of his parents is Muslim 2. enslaved by a Muslim 3. he was found in the land of muslims Division of the spoils of war The spoils of war are divided into 5 shares. 4 out of 5 go to the fighters who witnessed the battle. The horsemen take 3 shares and the footmen take 1 share. (this was the division of the Prophet (s).) Why 3 shares for the horsemen? The horse requires maintenance and money. One share belongs to Allah. (ev. Surah anfaal – this is the one share). The one share is divided into 5 more shares:
1. 2. 3. 4. 5.
Prophet (saw) relatives of the Prophet (saw) – banu hashim orphans poor spent in the cause of Allah
Conditions for a fighter to receive a share (5): 1. Islam 2. Puberty 3. sanity 4. freedom 5. manhood * notice that sickness and ability to fight are not included – if you get sick or lose your ability to fight, you still get a share. * women and children who opt to fight don‟t get a specified share, but they get a different share as a gift. The prophet used to just give a gift. The fifth share. Allah says: 8:41. And know that out of all the booty that ye may acquire (in war), a fifth share is assigned to Allah,and to the Messenger, and to near relatives, orphans, the needy, and the wayfarer,- if ye do believe In Allah and In the Revelation we sent down to Our servant on the Day of Testing,- the Day of the meeting of the two forces. for Allah hath power over all things. Shia take this ayah literally, their scholars are very rich. The ones with the black turban, they consider to be related to the Prohpet (s). So the ayah lists wayfarers…in addition to the Prophet, the family, any money that is taken form the disbelievers without fighting is called Fay‟ – it‟s divided the same as spoils of war. Conditions of Jizyah (5) 1. puberty 2. sanity 3. freedom 4. to be male 5. to be people of the book (the prophet included fire worshipers and they did this during the time of Omar). Contract of Jizyah includes 4: 1. pay money 2. adhere to Islamic rulings (a woman cannot go naked, etc.) 3. not to mention Islam except that which is good 4. not to harm Islam by your actions. (includes helping the enemies of Islam) Amount of Jizya 1. minimum is one dinar per year ($40) 2. middle class (2 dinars) 3. wealthy (4 dinars) In the time of Omar (ra) and old man was given from the treasury in charity because he paid jizya when he was young 12-03-06 Chapter of sacrifice There are two ways to make an animal halal –
If an animal is captured then it‟s slaughtered and if it‟s not captured then it‟s injured (blood is shed) until it dies and that makes its meat halal. You cannot injure and animal without shedding blood – Allah forbade that. If you strike it and kill it that way, it‟s not halal. It‟s maita (dead meat) You have to shed the blood of an animal. Form of slaughtering Perfect form is to cut 4 parts – throat (windpipe) , esophagus, 2 veins in the neck. Permissible form is to cut 2 out of 4. the point is to make the blood flow and you do that by cutting 2. You should treat the animals nicely and you should slaughter them with a sharp object – doesn‟t have to be steel. Also, if you slaughter dully, the animal dies of suffocation, not bleeding. Cannot slaughter with tooth or fingernail. It is permissible to eat the slaughtered animal of every muslim and a follower of the scripture (not a fire worshipper or a pagan) What if you slaughtered a pregnant cow, can you eat the fetus? Yes, the embryo is not slaughtered unless it‟s found alive. Hadith “killing the fetus is done by killing it‟s mother” What if you cut a piece off an animal while it‟s alive? The Prophet (s) said it was maita (dead meat) which is najas impure. It‟s all najas except for the hair which is not maita (not for eating but using). What is halal and haram to eat? Any animal that has a fang that it hunts with? No Any bird that has claws that it hunts with? No In the sea? Everything is halal Dead animals? Everything is haram except grasshopper and fish. Blood? No, except the spleen and liver is allowed.
What about roaches rats insects, etc? Every animal that was eaten by the Arab is Halal except what the Sharia forbade, and every animal that was not eaten by the Arab is Haram except what was allowed by Shariah. What about amphibious animals? If it lives mostly in the sea, it takes the ruling of the sea, if it lives mostly on land, it takes the ruling of land. There is a hadith forbidding frogs. Sacrifice on the day of Eid is an established sunnah in shafi school (some scholars say it‟s a must but it‟s just a sunnah in shafi). Minimum age for goat is two years, for sheep is one year, for camel is five years and for cow is two years. One camel is sufficient for 7 people, the cow for 7 and the sheep for 1. What is the preference for slaughtering? shafi says camel by yourself, then cow by yourself, then sheep by yourself, then 7 in a camel, then 7 in a cow. This comes from the hadith of coming early for Friday prayers – whoever comes early it would be like they slaughtered a camel, then cow, then sheep, etc. (ibn hazm says you can sacrifice a chicken for eid) Time? From the eid prayer until the sunset of the last day of tashriq Five things recommended while slaughtering: 1. saying bismillah 2. sending prayers to the Messenger (s)
3. 4. 5.
facing Qiblah Takbir Supplication (any dua)
If a sacrifice was vowed then nothing is eaten from it by the one who vowed. But if it is sacrificed on Eid then you eat from it and feed the poor and the needy. It‟s not permissible to sell any part of the sacrificed animal or give it as a payment for the butcher. The book of oaths Means you promise to do something and if you don‟t do it, you pay kaffarah or else it‟s just like a sin. Defined: The oath is what the name of Allah or one of his beautiful names or one of his attributes is mentioned. Whoever took an oath by the charity of his money then he has a choice whether he gives what he promised or he pays the kaffarah. (normally we don‟t swear by anything except Allah, but the opinion of Imam shafi is that we have a choice). There‟s no expiation for the laghu (useless speech). Like when someone says “yeah I‟ll give it to you w‟Allah I‟ll give it to you no problem.” Allah says he will not hold us accountable for the lahgu in our oaths. Vowing – the vow becomes mandatory to fulfill in everything that is permissible or recommended once it‟s made. Like if someone said “If Allah cured my son by Allah I‟ll pray or fast. There‟s no vow in disobeying Allah. Kaffarah. Either you 1. feed 10 people or clothe 10 people or free a slave and if you can‟t do any of those, you 2. fast 3 days. 12-10-06 Book of Judging (scholars give different terms for the political system, etc. and we will learn more) Definition of testimony – information to prove a right for others against others with a specific word. (must use ashadu) – notice this is for the rights of others. You don‟t testify for your own rights. Conditions of the Judge (What‟s the difference between a judge and a mufti? The difference is in enforcement. A mufti gives a ruling and a judge gives a verdict that has to be obeyed.) Fifteen conditions: (you‟ll see these are very similar to the mufti. Many scholars became judges – Qadi ayad, imam ibj hajar) Fifteen conditions: 1) Islam 2) Puberty and sanity 3) Freedom 4) Male (a few scholars disputed this) – history of Islam, no women judges. This is almost like consensus. 5) Trustworthiness 6) Knowing the rulings of the book and the sunnah. 7) Knowing the consensus of the scholars 8) Knowing the differences amongst the scholars 9) Knowing the ways of ijtihad 10) Knowing part of the Arabic language (knowing the book and the sunnah involves knowing some Arabic. Also, people giving witness – they say “ashadu”) 11) Knowing the interpretation of the book of Allah.
12) 13) 14) 15)
To be able to see To be able to hear To be able to write To be vigilant
When not to judge: 10 cases: 1) Anger – “the Prophet (s) the judge should not judge while he is angry” 2) Hunger – You might just hurry people out 3) Thirst – 4) Extreme Sadness 5) Extreme Happiness 6) Sleepiness 7) Extreme Heat and extreme cold 8) Sickness 9) When desire is strong sexually 10) Need to use restroom The testimony of the father is not accepted to his son and the son‟s testimony is not accepted for his father. Conditions of the witnesses: 1) Islam – why? Because in sura baqara, when Allah tells you to take witnesses, it says take two men “of yours.” Also #5. 2) Puberty – 3) Sanity 4) Freedom 5) Trustworthiness – this is another evidence that it should be muslim Condition of Trustworthiness. 5 things. 1) avoiding major sins 2) avoiding persisting on minor sins 3) Honest while angry 4) Belief is valid (cannot be an innovator) 5) Maintaining the common respect – scholars discuss this a lot. Khawarim and nuzuu‟a. It‟s how to treat people with respect. Like laughing loudly at someone. This might not be a major sin, but it goes to respect of people. Rights of two types – rights that belong to God and rights that belong to human beings. Rights of human beings are in three categories: 1) What could use two male witnesses – anything that does not pertain to money or financial transactions. 2) two male witnesses and two female witnesses. – financial transactions. 3) What could have four female witnesses – things only women can see or deals with woman‟s issues. Rights of Allah – like huduud. The testimony of women is not accepted. 1) what requires four witnesses – like huduud. 2) what requires two witnesses 3) what is accepted with one witness – moon sighting. Even 10 women seeing the moon is not enough – why? This is what Allah said. Why not accept the testimony of women in criminal cases? Just because it‟s not accepted doesn‟t mean that there is something wrong with it. It means women are not given this burden. It doesn‟t mean women are incapable of seeing the moon or witnessing murders. Also a murder witness‟ life is in danger