[1766] In the accusative case as an encouragement [to give a third] or in the sense of “give [a third]!” or it is in the nominative case in the sense of “[a third] is enough for you.”
[1767] yatakaffafūn meaning begging for ṣadaqah with their hands (kaff) and stretching out their hands to beg.
[1768] Al-Bukhārī under “testaments” in the chapter “that one leave one’s heirs without need is better,” and under “the fixed shares of inheritance” in the chapter on “the inheritance of daughters” and in the chapter on “bequeathing a third.”
[1769] And if they are adults because it is their right to refuse and they may drop [their right of refusal]. One does not take into account their giving permission while [the person bequeathing is] still alive because it is before the due becomes firmly established which is upon the death [of the person bequeathing] and they have the right [to repudiate their agreement to it] after his death.
[1770] Contrary to the case after his death since after the establishment of their due [and their renunciation of it] they are not able to change their minds.
[1771] Meaning that the repudiation is their denial of their permitting the bequest and thus the bequest is not valid.
[1772] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[6], p.[210].
[1773] Because it happens before the establishment of the due.
[1774] Meaning if the heirs permit it.
[1775] Then if anything is left over it is for the people who are to receive bequests. Moreover, the act of freeing the slave is only given precedence over the other bequests if it was executed during [the last] illness or connected to the death, for example, if he says, “If anything happens to me because of this illness then he is free.” As for if he bequeaths that his slave should be freed after his death, then one does not begin with freeing the slave, but on the contrary he is equal to the others who are to receive bequests (al-Bināyah).
[1776] Except for the act of freeing a slave which is executed in the final illness because it is begun with before every other bequest, and then the people due bequests contend after that. The act of setting free which takes effect is the one which has been executed not one which is delegated to the act of those receiving bequests setting him free such as for example if he says, “Free him!” or bequeaths that he should be free after his death (an-Nihāyah).
[1777] Meaning during his last illness.
[1778] This is based on the well-known difference of opinion between Abū Ḥanīfah and his two companions, which is that if a master frees a part of his slave, that amount of him is set free and he works to free the remainder of his price to his master according to Abū Ḥanīfah. But the two of them said that all of him is free.
[1779] For example the debt is sixty dirhams and the price of the slave is ninety dirham, then the slave is set to work for sixty dirhams for the creditors and twenty dirhams for the heirs, because he must work for two- thirds of what is due to the heirs and thirty dirhams is what remains, two thirds of which is twenty.
[1780] Meaning, those things which are rights due to Allah such as prayer, fasting etc., and if he has left no bequest about that, it is not to be taken from what he has left unless the heirs donate it.
[1781] Abū Yūsuf narrated it on p.[173].
[1782] In that he says in his final illness, “My slave is free.” [The point being that if he had not been in his final sickness he could dispose of his entire property as he wished. – Trans.]
[1783] For example, if a man says to his slave, “You are free after I die.”
[1784] Abū Yūsuf narrated it on p.[172].
[1785] Because it has the same judgement as a fatal illness.
[1786] The ascription of ownership to the slave is not as ownership but taking into account what is in his hands.
[1787] nasmah is a spirit (rūḥ) meaning a being possessing a spirit.
[1788] Abū Hurayrah narrated it as a marfūʿ hadith in the collection of al- Bukhārī under “expiations of oaths” in the chapter “on the saying of Allah, exalted is He, ‘or free a slave’” (Sūrat al-Mā’idah:[89]), and Muslim under “freeing slaves” in the chapter on “the merit of freeing slaves.”
[1789] Meaning: under the same ruling as the mother, since the children of a slave to be set free on his master’s death are also set free.
[1790] Abū Yūsuf narrated it on p.[192].
[1791] Abū Yūsuf narrated it on p.[192].
[1792] Abū Yūsuf narrated it on p.[192].
[1793] Meaning that it is valid for him to have sexual intercourse with her, to employ her as a servant, hire her out and marry her off.
[1794] siqṭ is the incompletely formed miscarried foetus.
[1795] Abū Yūsuf narrated it on p.[128].
[1796] Meaning if they were in ample circumstances.
[1797] Meaning that they could take on the responsibility to their partner for their share, and if they did so the one who set free would return to the slave, and the walā’ is for the one who sets free. If the one who sets free is in tight circumstances, then they have the choice if they wish to set free and if they wish they set the slave to work. This case is based on two principles, the first of which is that the act of setting free can be divided into parts according to him [Abū Ḥanīfah] but not according to the two of them [Muḥammad and Abū Yūsuf], and second, if the person who sets free is in easy circumstances then in his view [Abū Ḥanīfah] it is not prohibited to set the slave to work but it is in the view of the two of them [Muḥammad and Abū Yūsuf].
[1798] Abū Yūsuf narrated it on p.[165].
[1799] walā’ confers on the one who sets the slave free the right to inherit from the slave, for example. – Trans.
[1800] Abū Yūsuf narrated it on p.[164].
[1801] His relationship to a part of him is the same as his relationship to the whole, and so for this reason all of him is set free.
[1802] Abū Yūsuf narrated it on p.[191].
[1803] Abū Yūsuf narrated it on p.[190].
[1804] Abū Yūsuf narrated it on p.[190].
[1805] And Abū Dāwūd narrated from ʿAmr ibn Shuʿayb from his father from his grandfather that the Prophet said, “The mukātab (slave who has written a contract to purchase his freedom) is a slave as long as there remains one dirham of his contract unpaid.”
[1806] Abū Yūsuf narrated it on p.[190].
[1807] Meaning that if the mukātab slave dies leaving wealth, then the contract to purchase his freedom is not cancelled and what he still owes is paid from his wealth and the judgement is that he was set free in the very last portion of his life.
[1808] What is left over from his wealth after paying the remains of the contract. Ash-Shāfiʿī said that the contract is invalidated and he dies as a slave and whatever property he leaves is his master’s.
[1809] Abū Yūsuf narrated it on p.[190].
[1810] Abū Yūsuf narrated it on p.[191].
[1811] Meaning of the slave who died.
[1812] The slave who is still alive.
[1813] It is not valid from the wealth of the mukātib whether a free man undertakes it or a slave.
[1814] Abū Yūsuf narrated it on p.[196].
[1815] Meaning that if an heir kills someone from whom he inherits then the killer is forbidden his share of the inheritance, and it is the killing which according to us has necessarily attached to it retaliation, just as with intentional killing, or expiation as is the case with quasi-intentional or mistaken killing.
[1816] Abū Yūsuf narrated it on p.[161].
[1817] Abū Yūsuf narrated it on p.[171].
[1818] The Mājūs are the Zoroastrians. Apart from keeping alive the eternal flame and thus being “fire-worshippers” they were also dualists who considered that the cosmos is governed by two forces, good and evil, in constant conflict. – Trans.
[1819] See the Muṣannaf of Ibn Abī Shaybah, vol.[6], p.[288].
[1820] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[6], p.[288].
[1821] See the traditions on that in the Muṣannaf of Ibn Abī Shaybah, vol.[6], p.[288].
[1822] Meaning if the two of them differ about the household goods.
[1823] Such as the large outer wrapper called khimār, the shift and the like.
[1824] Such as a turban, tunic and weapons.
[1825] rijāl: men, is possibly a mistake for rajul: man. – Trans.
[1826] Unless the other establishes a clear proof that it is his.
[1827] Ibn Ḥazm ascribed it to Sufyān ath-Thawrī, Sharīk ibn ʿAbdullāh al- Qāḍī, ash-Shāfiʿī, Abū Sulaymān and it is also one of the two verdicts of Zufar, and the verdict of aṭ-Ṭaḥāwī.
[1828] And it is the verdict of az-Zuhrī.
[1829] And it is the verdict of Abū Yūsuf . The Imam al-Aʿẓam only chose the verdict of Ibrāhīm an-Nakhaʿī because it is supported by analogical deduction since clear proof is required of the claimant and the oath is the right of the one who repudiates, and the person against whom the claim is made is the one who outward appearances testify in support of, so we regard the man as being weightier in that which pertains to him and we regard his word as being definitive when accompanied by his oath, and the woman in that which pertains to her and regard her word as being definitive when accompanied by her oath. As to that which pertains to both of them, we regard the word as being that of the one surviving of the two since that one is the person with actual control because control belongs to the living and not the dead. The person with actual control is the one against whom the claim is made and we regard his word as being weightier when accompanied by his oath, and the heirs of the deceased must bring clear evidence. If it is divorce and not death, then the decisive word is that of the man in that which pertains to both of them because the wife and what she owns are under the authority of the husband, and the decisive word belongs to the person with control and authority, contrary to the situation with respect to what pertains particularly to her, because an outwardly clear matter which is stronger than it contradicts it.
[1830] It appears from the text that the mawlā had been killed and that compensatory payment was paid for his death. – Trans.
[1831] Meaning, “Ṣafiyyah is my mother.”
[1832] Meaning, “I have more right to it,” and the walā’ is of two types: the walā’ of emancipation whose cause is the act of his setting free from his ownership, and the walā’ of alliance which is a contract, and the meaning of both is mutual assistance. The Arabs used to assist each other in various ways and the Prophet confirmed both types of mutual assistance through walā’.
[1833] People only have walā’ from those whom they have set free or from someone set free by someone whom they had set free [meaning the one who was set free by the slave whom they had set free – a second order freed slave. – Ed.]
[1834] This is the walā’ of the contract of alliance whose form is that someone whose lineage is unknown should say to the one at whose hands he has accepted Islam or to someone else, “I make the contract of walā’ with you on the basis that if I die my inheritance goes to you, and if I commit a corporal or capital crime my compensatory payment is due from you and from your ʿāqilah” and the other accepts that from him. The one who accepts is his mawlā who inherits him if he dies and who pays his compensatory payment if he commits a corporal or capital crime.
[1835] Abū Yūsuf narrated it on p.[170].
[1836] The lesser mawlā [since both parties to a walā’ contract of alliance are called the mawlā. – Trans.].
[1837] Move it [to another person].
[1838] The major mawlā.
[1839] On behalf of the lesser mawlā. This transference is possible because it is not a legally binding contract [until payment of compensatory payment] of the same status as a bequest. Similarly, the major mawlā can be quit of the alliance because it is not binding unless it has been stipulated that it ought to be done in the presence of the other.
[1840] mulāʿinah is the woman between whom and her husband the liʿān has occurred. It has also been said that it is mulāʿanah.
[1841] Because if one of the two begins the process of liʿān the liʿān is not complete as long as the other does not engage in it.
[1842] Meaning that if the child of the woman in the case of liʿān dies leaving his mother and his brother, then his mother receives a third and his brother a sixth, and what remains is divided between them in proportion to what they inherit, for which reason his mother inherits two thirds of the inheritance, one third as her obligatory share and one third by adjustment.
[1843] Her son inherits a third: one sixth as an obligatory inheritance and one sixth by adjustment [of the remaining portion].
[1844] See the Muṣannaf of Ibn Abī Shaybah, vol.[6], pp.[275]-7.
[1845] See some of the traditions on that in the Muṣannaf of Ibn Abī Shaybah, vol.[6], p.[277].
[1846] Meaning the verdict of Ibrāhīm that they both have a third and what remains is for his mother is deduced analogically from the verdict of ʿAbdullāh ibn Masʿūd because he said that if there is a brother he gets a third, and that if there are two whether or not a brother or sister (because they are equal), meaning that the two of them take a third and whatever remains is the mother’s because she is the ʿaṣabah.
[1847] As is in the narration of al-Bayhaqī from Ibn ʿAbbās who said, “Some people came to ʿAlī and argued over the child of a couple who had engaged in liʿān, and then the child of his father came for whom they were seeking his inheritance.” He said, “And he made his inheritance for his mother and made her the ʿaṣabah not meaning the literal ʿaṣabah but interpreting it metaphorically, meaning that he did not give the son of his father anything because of the interruption of the ascription to his father and gave the inheritance to the mother entirely because he had died without a son nor any brother from his mother. So the mother received a third of his inheritance as her fixed share of the inheritance and the rest by adjustment, so that she became as if she were the ʿaṣabah. So he made the mother and her people the ʿaṣabah contrary to the principles of the fixed shares of inheritance. [ʿAṣabah are the male relatives through the father who do not receive fixed shares of the inheritance [farā’iḍ] but receive in certain cases where there are none to receive fixed shares or where there is a surplus left over after the distribution of the fixed shares. It also denotes the heirs of someone who leaves neither parents nor children, and thus in some cases the wife and other parties. – Trans.]
[1848] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[6], p.[255] from Ibrāhīm from ʿAlqamah from Ibn Masʿūd.
[1849] Meaning in having a right to it in the sense of being ʿaṣabah that is maternal kinship not in establishment of literal ʿaṣabah [being male relatives through the father].
[1850] Abū Yūsuf narrated it on p.[168].
[1851] This is that someone says to his fellow, “I give you my house as an ʿumrā,” meaning “I appoint it for you for the duration of your life.” Thus, when this is said and it is connected to taking possession, it is giving the ownership of it itself and thus the Messenger of Allah called it “gift” when he said, “It belongs to whomever it was given as a gift,” and if it becomes a gift it is his during his life and his heirs after him. Mālik said that it is a granting of the possession of a certain benefit during his life but not ownership of it itself and when he dies its ownership returns to the one who granted it as an ʿumrā.
[1852] Abū Yūsuf narrated it on p.[67].
[1853] Abū Yūsuf narrated it on p.[167].
[1854] ḥamīl: the ascription of a relationship to someone else in that a woman says, “This child is my husband’s son,” or a man says to another, “This is my brother.” This person thus affirmed inherits with respect to the person who affirms him but not from others who repudiate unless he produces clear evidence in which case he inherits in all respects.
[1855] See the traditions in the Muṣannaf by Ibn Abī Shaybah, vol.[6], pp.[280]- 1.
[1856] Abū Yūsuf narrated it on pp.[158]-9.
[1857] Ash-Shāfiʿī said that they both have the choice.
[1858] Those apart from the mother and grandmother have more right to the girl child until she reaches the age of desire, and in al-Jāmiʿ aṣ-ṣaghīr there is that it is until she can manage.
[1859] Because of the words of Allah, exalted is He, “The same duty is incumbent on the heir” (Sūrat al-Baqarah: 231). In the recitation of Ibn Masʿūd there is, “The same duty is incumbent on the heir who is unmarriageable (maḥram) close kin.” Maintenance is obligatory according to the scale of the inheritance and he is compelled to pay it.
[1860] Abū Yūsuf narrated it on p.[159].
[1861] Ibn Abī Shaybah narrated the like of it from ʿUmar ibn ʿAbd al-ʿAzīz so see the Muṣannaf, vol.[4], p.[336]