ṬAHĀWĪ'S IKHTILĀF AL-FUQAHĀ'

Author(s): S. H. MA'ṢŪMĪ and S. M. Ma'ṣūmī

Source: Islamic Studies, Vol. 9, No. 1 (MARCH 1970), pp. 89-97
Published by: Islamic Research Institute, International Islamic University, Islamabad
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 TAHAWI'S IKHTILAF AL-FUQAHA'
s. h. ma sDmI

(Abridged)
Book I?Money Exchange

Kitab al-Sarf1 : The of Sarf or exchange

Book of money for
bullion, or bullion for bullion.
This book consists of seven topics.

1. On takingpossession of thesarf
Our authorities hold that it is legal to take possession of the (object)
of exchange before the separation of the parties although the duration
was extended and the parties transferred themselves to a different place.
This is the view of al-Shafi'i.2
Ibn al-Qasim, however, says on the authority of Malik, that the
Sarf is only legal when the things are exchanged from hand to hand.
If the exchange was not enforced or the things were exchanged in the
morning but were taken possession of at noon, the ?arf is not valid. Nor
will it be valid except when the acceptance is expressed in words.
Similarly, if the parties transferred themselves from one place to another
place their taking possession of the things exchanged is not valid.3

2. On theappointmentof an agentfor takingpossession of the$arf

Our authorities say it is lawful to contract sarf, exchange, then,

appoint an agent to take possession thereof so long as the parties are not
separated. This is the view of al-ShafVi.
however, says it is necessary that the contracting party takes
Malik,
possession of the sarf. It is lawful that a dinar is exchanged by two
persons and either takes its possession by the order of the other in his
presence.4

3. On taking ofa part of thefarf

possession
Ourauthorities say that the exchange is valid concerning the part
that has been possessed, and not valid concerning that which is not taken
into possession when the parties are separated.
Malik and al-Shafi% however, say that the entire sale is invalid
when the parties are separated and no part of the ?arf was taken
possession of.

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90 S. H. MA'SOMl

Abu Ja'far argues in favour of theHanafite view that if two slaves

are purchased and one slave dies before his
possession is taken over, the
sale is unanimously considered valid concerning the living one and in
valid concerning the dead only. The sarf, exchange, should, therefore,
be dealt with likewise.

4. On the sale of gold in exchange of silver in an undeterminedquantity5

Our authorities see no harm

in this kind of exchange. This is the
view of al-ShafVL6 Malik also sees no harm
in purchasing gold in ex
change of silver in an undetermined quantity in case it was pure gold or
golden ornament. But darahim and dananir should not be
exchanged
indeterminately unless they are counted and their number is specified,
or else it is a device and gambling. This has been mentioned by Ibn

al-Qasim on the authority of Malik.

5. On the vindication\the
protection of bonafide acquisition in thefarf exchange7

Our authorities say that when a silver-jar is purchased in one hun

dred dinar and the objects were taken possession of and the parties were

separated, and then the jar is vindicated (and claimed by a third party)
and the vindicator (the claimant) declares the sale lawful, it is lawful.
But Malik and Zufar say it is not lawful except when the case ended
before separation.

6. On thedisposition of theprice of $arf exchange

Our authorities and Layth say it is not lawful to sell the price of the
sarf, exchange, before possessing it.

Malik, however, sees no harm in taking an article in exchange of the

price of the sarf.

7. On theexchange ofwhat is notwith theagent

Our authorities and al-Shafici declare it lawful to purchase a dinar

in ten dirhams which neither of the parties possess. One party then
borrows and delivers it to the other before their separation.

Al-Hasan narrates that it is not lawful to exchange when one of the

parties does not determine the thing by saying, for example, that he
purchased from the other a thousand dirham in one hundred dinar, no
matter whether they possessed them or not. If, however, one party
determines, then it is lawful to say 'I purchased from you one thousand
dirham in exchange of these (determined) dinars, and the party delivers
them to the other before they disperse.

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 TAHAWl'S IKHTILAF AL-FUQAHA' 91

There has been narrated on the authority ofMalik, a view like that
of Zufar except thatMalik considers itnecessary to take possession of what
is not determined immediately after the contract.

Book II?Emancipation*

A considerable portion of this book ismissing from the beginning.

The surviving topics are as follows:
1. Sale of a slave who has been manumitted by tadbir (tadbir,
manumission which takes effect at the death of the owner).
Malik does not allow the sale of a mudabbar.
If a slave woman who was to be manumitted at the death of the
owner was sold and the purchaser emancipated her, the emancipation
is lawful and tadbir is invalidated, and the wala* (relationship of client)

belongs to him who emancipates. In case she bears a child after mating
she becomes ummwalad (the female slave who has borne a child to her
owner which he has recognized. She becomes free by law on his death),
and tadbirbecomes invalid.

Awza'I does not allow the sale of the mudabbar but for the sake of the
owner himself or for one who expedites his manumission, wala' being
the right of the purchaser as long as he lives and then of his heirs after his
death.

dislikes the sale of the mudabbar. But if he is sold and the

Layth
him, the emancipation is valid and waW is the
purchaser emancipates
right of the emancipator.
'Uthman al-Butti and Shafi'i declare the sale of the mudabbar legal
with or without necessity.9

'Ata' narrates on the authority of Jabir b. 'Abd Allah, Jlbir said

that a man of the Ansar declared that a slave would be free after his
death, but he had no other property, so when the Prophet heard of this
he said, "who will buy him from me?" and Nu'aim b. ''AbdAllah bought
him for eight hundred dirhamswhich he brought to the Prophet.10 'Ata'
said, he is not to be sold except when his price is needed.11

2. On themortgage of a mudabbar.

Our authorities and al-Thawri declare it unlawful to mortgage a

mudabbar. But Malik holds that it is lawful.

Imam Tahawi argues saying that they all agree it is unlawful to

mortgage an ummwald as it is so to sell her. Similar is the case with the
mudabbar. So he will not be mortgaged.

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92 S. H. MA'SCMI

3. On the child of themudabbar woman.

Our authorities hold that the child of the mudabbarah will be treated
like the mother. Al-Thawri, al-Awza% Malik, al-Hasan b. Hayy, and
also al-Shaf?i, in respect of his one view, agree with the JJanafites.12
The other view of al-Shafi'l declares him a slave not to be set free on the
death (of themaster).
It has been narrated on the authority of 'Udiman, Ibn 'Umar and
Jabir that the child of the mudabbarah is to be treated like her and will
be set freewith the emancipation of themother. They were not opposed
by any ?ahabi.

4. On (manumission)
themudabbaris to be debited to the thirdof the
(assets).
This is held by our authorities, al-Thawrl, Malik, al-Awzaci, al-Hasan
b. Hayy and al-ShafVl. Shurairji also joins them.
Zufar and Laydi b. Sacd hold that it is to be debited to thewhole
of the assets. Masruq, and Ibrahim al-Nakh'I join them on the basis of
the hadith of 'Abd Allah b. Mas'ud indicating the same view.
But al-Tahawi states that the hadith of Ibn Mas'ud is not sahih
(genuine), it has been narrated by Jabir al-Ju'fi. He further refers to
the narration of al-Hasan al-Basrl, "Manumission of the mudabbar is
(to be debited) to the third (of the assets).13

5. On theword ofTadbir14

Book III?Hunting & Animals (To be slaughtered)

1. On hunting in theCity of theProphet, and onfelling trees therein1

Our authorities say it is not unlawful to hunt at al-Madmah, and

similarly to fell trees therein.

Malik dislikes to do so without recommending any compensation for
it. This is the view of al-Shafici.

Tahawi, then, narrates a hadith reported by Sacd from the Prophet,

"whomsoever you find hunting (a bird or wild animal) in the area
(Hudud) of the haram of al-Madlna, or felling a tree (therein), you take
his belongings." Sa'd adds saying that he took the belongings of him
who did it.2
But, all jurists agree that ehisbelongings' will not be taken (fromhim).
Again, the hadltih narrated by Salmah b. al-Akwa' (see Text, p. 6)
indicates that the prohibition understood from the hadith of Sacd is

abrogated.

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 TAHXwrs IKHTILAFAL-FUQAHA' 93
Al-Slmfi'idislikes hunting at al-Wajj in al-TTa'if, and also felling its
trees, because the Prophet declared the place a fraram. Abu Ja'far says,
"we have not heard any narration in this matter, nor any view of the
learned."

2. On Eating afanged beast ofprey.

Our it is not lawful to eat (the flesh of) any carni

authorities hold
vorous beasts/any beasts of prey with a fang and bird with a claw/talon3
Malik prohibits wild beasts of prey, such as cat, whether wild or
domestic, fox, hyena, and any beast of prey. He sees harm in eating
birds with a talon, such as vulture, eagle, etc. whether they eat carcass
or not.

Al-Awza'i allows all birds, but dislikes (Makruh) rakhm, vulture.

Al-Layth sees no harm
in eating cat, and dislikes a hyena. Al-Shafi'I
declares unlawful the flesh of all carnivorous beasts which feed themselves
with human flesh, such as lion, tiger, leopard, panther and wolf and
allows eating of hyena, and fox. He prohibits vulture, al-Bazi, falcon/
hawk, and their likes i.e., those birds which feed themselves with human
flesh.
Our authorities dislike j crow, and
i~*\jxl\ vU*" J
not^j^JI
because j^h crow (black) is included in the five <jjJj? trangressors,
to be killed in both fyaramand outside fyaram,as it is indicated in the
hadlth of 'Ayisha. Al-Tahawi explains that crow eats carcass. Hence,
all that eats the dead carcass is disliked

3. On thebeasts and birds ofprey usedfor hunting.*

Our authorities hold it lawful to use a beast of prey and a bird with
a talon which are trained for hunting.
This is also held by Malik, al-Thawri, al-Awza'i, al-Layth and
al-?hafi'i.

4. On huntingwith a traineddog of aMagian

Our authorities see no harm in hunting with a trained dog of a

Magian.
Malik, Al-Awzaci and al-Shafi'i also see no harm provided a Muslim
sends it for hunting.
Al-Thawri dislikes hunting with the dog of a Magian but allows
when the dog has been trained by a Muslim.
concerns a
Abu Ja'far (al-Tahawi) explains that the IJanafi view
Muslim, because if a Magian hunts with the dog of a Muslim, the flesh
of such prey is not lawful.5

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94 S. H. MA'SOMl

5. On thedisappearance
ofthe
preyof thedog
fromhismaster
Our authorities hold that in case the prey disappears and the dog
is searching for it, and there it is found already killed by the
dog, the
prey may be eaten. But if the dog gives up its search for the prey and
is occupied otherwise; and afterwards, the dog runs after its
prey which
is found killed and the dog stands we dislike its eating.6
by it,
Malik says that if the prey is found on the same day when it was
hunted it will be eaten whether hunted by a dog or by an arrow, no
matter, if it is dead provided it is wounded. But if it is found after
a night itwill not be eaten.7

Al-Thawri says if a prey is shot at and disappears for one day and
night I dislike its eating.
Al-Awza'i holds that if the prey is found next day dead with a wound
or with his arrow in it, it should be eaten.16

Al-ShafTi says reasoning indicates not to eat it when it remained

hidden.

6. On theprey offeatherless arrow9

Our authorities say if it kills the prey breadthwise it will not be

eaten, but if itwas torn with its edge itwill be eaten. The same is the
view ofMalik and al-Thawri.

Al-Thawri also says if you aim at a prey with a stone, a bullet shot,
I dislike it unless you slaughter it.10

Al-Awza'i says concerning the featherless arrow whether it tears or

not that Abu al-Darda, Fu<Jalah b. 'Ubaid, 'Abd Allah b. 'Urnar and
Makhul did not see any harm in its prey.

Al-Hasan b. Hayy allows eating of a prey torn by a stone. He says

a bullet shot does not tear. Al-ShafTi says, if the prey is torn or cut by
the edge or the thin (side) end of the arrow it is eaten; and what is torn

by itsweight is 'beaten to death5. As for the prey killed by the beasts

or birds of prey, itwill not be eaten unless it is torn, according to one of
his two views, as is understood from the expression of Allah, and accord

ing to his other view it is lawful.

7. On the
preyhurtbythedog
Our authorities hold that if the prey is knocked to death by the

hunting dog itwill not be eaten.11 The same is the view ofMalik and
al-Shafi'i.

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 TAHAWl'S IKHTILSF AL-FUQAHA' 95

8. On abandoning Tasmiyah (utteringBismillak al-Rahmdn ar-Rafifm) at the

time of hunting and slaughtering.

In case itwas not uttered deliberately itwill not be eaten as is held

by our authorities, Malik and al-Hasan b. Hayy. In case it was left

out by mistake itwill be eaten.12

Al-ShafVi says itwill be eaten in both cases.

9. What, if the dog (or arrow) sent to a prey catches/strikes a

different one? Our authorities al-Thawrl and al-Shafi'I hold itwill be
eaten13. But Malik forbids its eating.

In case something is perceived, taken to be a prey, and is aimed

10.
at, but if itwas discovered to be something else while he struck a prey, it
will not be eaten, as has been narrated by Abu Yusuf from Abu KEanlfa.
But ifhe took it to be a man or a goat and aimed and uttered bismillah
and found that itwas a prey itwill be eaten.14

11. On theprey a part ofwhich was severed.15

Our say if it is cut into two halves both

authorities and al-Thawrl
will be eaten, the same is the case if a third of itwas severed from the
side of itshead. But ifone third is cut on the side of itshinder part, the
two-thirds on the side of the head alone will be eaten.16

if a portion of the prey is

Layla and al-Laytfi hold that
Ibn Abl
severed, and it dies with the blow, both parts will be eaten.

says if itwas cut from the middle or its neck was struck, it
Malik
will be eaten. But if one thigh is cut itwill not be eaten but the rest of
the prey will be eaten.17

Al-Awzaei says if the hinder part is severed itwill be leftout and the
rest of the prey will be eaten and if it is cut from the middle the whole
of itwill be eaten.

12. On thewild ass thatbecomesdomesticated.

a
Ourauthorities, al-Hasan b. Hayy and al-Shafi'I hold that if wild
ass becomes domesticated itwill be eaten (after it is slaughtered).

finds a prey of the dog or

13. Out authorities say if somebody
an arrow alive, and it dies before he slaughters it, itwill not be eaten.
its death
Malik and al-Shafi'I say ifhe was unable to slaughter it before
it will be eaten, but ifhe was able, but did not slaughter it and it died,

itwill not be eaten.18

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96 S. H. MA'SOMl

14. On thedog thateats theprey.

Our authoritiessay ifthedog eats theprey and it (the dog) is not

trained, its prey will not be eaten. But the prey of a hawk (falcon) will
be eaten even if the bird eats it. This is also the view of al-Thawri.19

Malik, al-Awzaci and al-Layth say that itwill be eaten even if the dog
eats out of it.

prohibits eating a prey which is eaten by the dog, and the

Al-ShafTI
falcon is like the dog by the judgement of reason.20

NOTES
(I AND II)
1. Cf. aUDirdsdtaUIslamiyah,
March, 1369,pp. 5-7.
2. See K. al-Umm, VII, p. 348.

3. AUDirdsdt, op. cit., pp. 5-6.

4. Ibid., p. 6.
5. Ibid.
6. AUUmm,VII, p. 348,
7. Ibid.
8. AUDirdsdt^ op. cit., p. 7.

9. Ibid.
10. AUUmm,VII, p. 348.
11. JMJ.
12. iJttf.

13. Ibid., V, p. 273.

14. Al-Dirasat, op. cit., p. 9.
15. As slavery has been abolished by international law the rest of the topics
discussed in thechapter is leftout.

(in)
1. Cf. aUDirdsdt, op. cit., p. 17.
2.Imam Tafeawi, ShflrbMa'ani aUAtfjflr,aURahimlyah, Deoband (India), vol. II,
pp. 257 and 260.
3. See Im5mMalik, al-Muwaffd, ed. Fu'ad 'Abd al-Baqi, 1951, vol. II, p. 496,
Marghinani, Karachi,
aUHidayah, 19^2, vol. IV, p. 44.
4. AUDirdsdt, op. cit., p. 19.
5. Ibid.

6. Ibid.

7. Ibid., pp. 19-20.

8. Al-Bukhdri, aUMafabi,Delhi, II, p. 824.
9. AUDirdsdt, op. cit., p. 21; cf.Mufchtasar al-Tafidwi, Dar aUKitab aWArabx, Cairo,

1370 H. p. 298; also aUHidayah, Sa'idi, IV, p. 311.

10. Cf. Mukbtasar, op. cit., p. 298.
There seems no harm in a prey wounded by a gunshot which causes bleeding.
The case furtherreceives supportfromthedecision of Ijlasan b. IJayy (mentioned
in the text infra).

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 TAHAwrs IKHITILAF AL-FUQAHA* 97
11. Cf. MuMitasar at-Tahdwi, p. 297.
12. Cf. al-Samarqandi, Tufifat aUFuqahd, III, p. 92.
13. Ibid., Ill, p. 105,aUHiddyah,IV, p. 506.
14. Cf TuftfataUFuqahd,III, p. 108,aUHiddyah,IV, p. 509.
15. AUDirasdt, op. ext., p. 23.
16. Cf Muf&tdsar aUJahajoi,p. 299, also TuhfataUFuqahd,III, p.ut.
17. AUDirasat, op. cit., p. 24.
18. Ibid., p. 25.
19. Cf.Mukhtasar al-Tahawi,p. 297;Muhhtdsar aUMuzani on themargin of al*Umm,
V, p. 205, aUHiddyah,IV, p. 504.
20. Mukhtasar aUMuzani, op. cit., p. 205.

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