[1862] aymān is the plural of yamīn which means lexically “strength” and in terms of the Sharīʿah a contract strengthened by the resolve of the one swearing the oath to act or to leave undone.
[1863] Witnessing is an oath because of His words, exalted is He, [that the hypocrites say], “We bear witness that you are indeed the Messenger of Allah,” and then He says, “They have made their oaths into a cloak...” (Sūrat al-Munāfiqūn: 1-2).
[1864] Because contract is an oath. Allah, exalted is He, says, “Fulfil your contracts” (Sūrat al-Isrā’: 34). And dhimmah has the same meaning.
[1865] Because of his saying , “Whoever vows a vow without saying the name [of Allah] has to make the expiation of an oath.” At-Tirmidhī.
[1866] Meaning that if someone says that if he does such-and-such he is a Jew or a Christian or anything else, then that is an oath.
[1867] And expiation is not permissible according to us before retracting the oath, but Mālik and ash-Shāfiʿī said that it is permissible. Our argument is that which Muslim narrated from Abū Hurayrah, “Whoever swears an oath but sees something other than it to be better, should do what is better and expiate his oath.”
[1868] Abū Yūsuf narrated it on p.[168].
[1869] The meal that is eaten at the beginning of the day. [The word is used variously for breakfast and lunch. – Trans.]
[1870] ʿashā’ is the meal that is eaten around the time of ʿIshā’.
[1871] Because of their earning their freedom.
[1872] If he has not paid anything it is valid, because his condition of slavehood still exists in every respect.
[1873] According to us a kāfir is valid for liberation contrary to ash-Shāfiʿī, and we say that the noun “slave” (raqabah) is used [in the Qur’ān] for both Muslims and kuffār.
[1874] See the Muṣannaf of Ibn Abī Shaybah, vol.[3], pp.[78]-80.
[1875] Meaning that the exception he makes is valid and the oath does not take effect [such that he would have to expiate it if he did not fulfil it].
[1876] Abū Yūsuf narrated it on p.[138].
[1877] It does not mean that it does not originally take effect since that does not accord with his statement and his expiation, but on the contrary it means that one does not fulfil it as is clearly stated in some narrations, because in them there is, “There is no fulfilment of a vow of disobedience.”
[1878] Muslim narrated it in the book of “vows” in the chapter that “one does not fulfil a vow to disobey Allah,” and Abū Dāwūd under “oaths and vows” in the chapter on “vows concerning that which the son of Ādam does not possess.”
[1879] The verdict of ash-Shaʿbī is contrary to hadith and is not acted upon.
[1880] taṣaddaqa I have here read to refer to the obligatory zakāh, since nothing else is obligatorily due from a Muslim than it, and it would not technically be an act of disobedience to swear not to give optional ṣadaqah. In the context of the other oaths it is clearly an oath to abstain from an obligation that is intended here, even though lexically to the modern Muslim, ṣadaqah almost invariably means optional generosity to the poor. However, in the language of fiqh and Qur’ān it regularly refers to the zakāh. – Trans.
[1881] Abū Yūsuf narrated it on p.[168].
[1882] Meaning all of it.
[1883] Meaning, if he vows to give all of his wealth away. This type of vow is interpreted according to us to refer to his property on which he has to pay zakāh, as is clearly stated in al-Badā’iʿ, which is legal preference (istiḥsān). The analogical deduction if one takes it to refer to all of his wealth is as Ibrāhīm said in this tradition.
[1884] Meaning that if he cannot find anything else he should retain of it enough for his food, but if he comes into possession of something else he should give the same amount as he retained as ṣadaqah.
[1885] Abū Yūsuf narrated it on p.[92].
[1886] Meaning someone who said, “It is obligatory on me to walk to the House of Allah,” or “to the Kaʿbah” must perform Hajj or ʿUmrah walking. If he wishes, he may mount and then slaughter an animal [in expiation].
[1887] Aṭ-Ṭaḥāwī mentioned that he has to sacrifice a hady sacrifice for giving up walking and make expiation for breaking his oath.
[1888] Meaning that he vowed.
[1889] As an expiation.
[1890] Meaning that his vow is valid but he is required to sacrifice a hady offering, which is to sacrifice a camel or a sheep, and that is only done during the days of tashrīq (the drying of the meat) whether or not he is in the ḥaram. This is legal preference (istiḥsān) and it is the verdict of Abū Ḥanīfah and Muḥammad. Analogical deduction gives that his vow is not valid and that is the verdict of Abū Yūsuf, Zufar and ash-Shāfiʿī, may Allah have mercy on them (al-Badā’iʿ).
[1891] naṣībahu: his portion. It is thus in the original and it is possible that it should be nafsahu (himself) instead of naṣībahu.
[1892] From tawrīk: an intention in an oath that what the person swearing intends is different from that which the person requiring him to swear intended. Abū Dāwūd narrated it from a hadith of Suwayd ibn Ḥanẓalah that he swore an oath Wā’il ibn Ḥujr was his brother and so the enemy let him pass. He mentioned that to the Messenger of Allah and he said, “You told the truth; a Muslim is a Muslim’s brother.”
[1893] However, if someone is made to take an oath before the qāḍī, the oath is according to the intention of the one who demands the other to take an oath, because judgement revolves around what is outwardly apparent and so one takes no account of his equivocation and his interpretation (ta’wīl) lest it avert the right of the claimant.
[1894] Which is the oath that takes effect, that someone takes an oath on something future that he will or will not do it, and thus when he fails to fulfil it he is obliged to make expiation.
[1895] This is an inadvertent oath for which there is no expiation, and that is that someone swears an oath about a matter which is past, thinking that it is as he said, but the matter is contrary to what he thought.
[1896] “Allah does not take you to task for your inadvertent oaths.” (Sūrat al- Mā’idah: 89) – Trans.
[1897] Mālik narrated it in the Muwaṭṭa’ under “vows” in the chapter on “inadvertent oaths,” and al-Bukhārī narrated the like of it under “oaths and vows” in the chapter [on the words of Allah, exalted is He], “Allah does not take you to task for your inadvertent oaths” (Sūrat al-Mā’idah:[89])