بَابُ الاسْتِعَاذَةِSeeking Refuge

¹ The statement: “Equal to the creditors”: For this reason, it is said in the completion of Bahr Ar-Ra’iq: This means that if someone buys goods and becomes bankrupt while the goods are still in his possession, the seller of the goods is equal to the creditors in it. The intent is after the buyer takes possession of the goods with the seller’s permission. If it is before possession, the seller may withhold the goods until he receives the price. Likewise, if the buyer takes possession without the seller’s permission, the seller may reclaim and withhold it for the price. It is stated in Umdat Al-Qari: Ibrahim An-Nakha‘i, Al-Hasan Al-Basri, Ash-Sha‘bi in one narration, Waki‘ ibn Al-Jarrah, ‘Abdullah ibn Shubrumah, the judge of Kufa, Abu Hanifah, Abu Yusuf, Muhammad, and Zufar held that the seller of the commodity is equal to the creditors. It is authentically reported from ‘Umar ibn ‘Abdul-‘Aziz that if someone receives part of the price of his commodity and then the buyer becomes bankrupt, he is equal to the creditors. This is also the view of Az-Zuhri, and a similar view is narrated from ‘Ali ibn Abi Talib (may Allah be pleased with him). Ash-Shafi‘i, Malik, and Ahmad argued with what Bukhari and Muslim narrated from Abu Hurairah, who said: “If a man becomes bankrupt and someone finds his property as it is, he has more right to it than others.” They followed the apparent meaning of this hadith, stating that if a man becomes bankrupt and possesses goods he purchased, which remain as they are, the owner has more right to them than other creditors. At-Tahawi responded to this hadith, saying that it refers to someone finding his property as it is, but the sold item is not his actual property; it is only property that was his. His actual property refers to usurped items, borrowed items, deposits, and the like. That is his property as it is, so he has more right to it than other creditors. This hadith from the Messenger of Allah (ﷺ) supports this, as does what is narrated from the Messenger of Allah (ﷺ) in the hadith of Samurah, where he said: The Messenger of Allah (ﷺ) said: “If someone’s property is stolen or lost and he finds it as it is with someone, he has more right to it, and the buyer may seek the price from the seller.” Al-Tabarani also narrated it, clarifying that the hadith of Abu Hurairah refers to deposits, borrowed items, usurped items, and the like. The owner of the property has more right to it if he finds it as it is in someone’s possession, and the creditors have no share in it because it remains in his ownership. The hand of the usurper is one of transgression and injustice, as is the thief’s, unlike when it is sold and delivered to the buyer, as it then leaves the seller’s ownership, even if the price is not received. The seller here is no longer the owner of the property, as it has left his ownership, and the characteristic has changed as the essence has changed. Thus, the sold item is no longer his property, though it was his property initially.

¹ The statement: Look at her, etc. Scholars have differed regarding the permissibility of looking at a woman one intends to marry. Al-Awza‘i, Ath-Thawri, Abu Hanifah, Ash-Shafi‘i, Ahmad, and Ishaq permitted it absolutely, whether the woman consented or not, based on the hadiths of Jabir and Al-Mughirah. Malik permitted it with her consent, and it is narrated from him that he prohibited it absolutely. If a woman were sent to describe her, it would be more in line with avoiding disagreement. Al-Mirqat and Al-Luma‘at are sourced from this. It is said in Ad-Durr Al-Mukhtar: It is recommended to look at her beforehand.

¹ The statement: "A widow is not to be married until she is consulted" Know that the dispute between us and the Shafi‘is and others here concerns two issues. The first is whether a marriage contract is valid with a woman’s expression, whether she can undertake it herself without a guardian if she is mature, or whether it is invalid and impermissible. Ash-Shafi‘i and Ahmad hold that it is invalid and impermissible, citing: Do not prevent them from marrying their husbands [Al-Baqarah: 232], arguing that the address is to the guardians, as narrated from Ma‘qil ibn Yasar, who prevented his sister from marrying her husband, so the verse was revealed. Thus, it is understood that marriage is in the hands of the guardian who undertakes it, supported by the Hadiths in this chapter, such as Aishah’s narration: "Any woman who marries without her guardian’s permission, her marriage is void," repeated thrice, narrated by Abu Dawud, An-Nasa’i, Ibn Majah, and At-Tirmidhi, who deemed it good. Also, Abu Musa’s narration: "No marriage except with a guardian," narrated by At-Tirmidhi and others; Ibn Mas‘ud’s narration, narrated by Ad-Daraqutni; Ibn Umar’s narration in it: "No marriage except with a guardian and two just witnesses"; Anas’s narration: "No marriage except with a guardian," narrated by Al-Hakim; Imran ibn Husayn’s narration: "Marriage is not permissible except with a guardian and two just witnesses," narrated by Al-Bayhaqi; Abu Hurayrah’s narration: "A woman does not marry a woman, nor does a woman marry herself, for the adulteress is the one who marries herself," narrated by Ibn Majah; Mu‘adh ibn Jabal’s narration: "Any woman who marries without a guardian is an adulteress," narrated by Ibn ‘Adi; Jabir’s narration: "No marriage except with a guardian, and if they dispute, the ruler is the guardian of one who has no guardian," narrated by At-Tabarani in "Al-Awsat"; Ali’s narration: "Any woman who marries without her guardian’s permission, her marriage is void," narrated by Ibn ‘Adi in "Al-Kamil." Also in this chapter from Ibn Umar, Abu Dharr, Al-Miqdad, Miswar ibn Makhramah, Umm Salamah, and Zaynab bint Jahsh. Also, by reason, marriage aims at its objectives, and delegating it to women is inappropriate, as they are deficient in intellect and religion, quick to be deceived, and poor in choice. Abu Hanifah and his companions, however, ultimately hold that it is valid and permissible in the apparent narration, though the guardian can object if the match is unequal, supported by the Hadiths forthcoming in the book and by what Muslim and others narrated: "The widow is more entitled to herself than her guardian, and the virgin is consulted about herself." The widow is one without a husband, whether virgin or previously married, divorced, or widowed, which is its linguistic meaning and intended here. A non-mature woman is excluded by consensus. The true meaning is preferred as long as possible, and metaphor is disregarded due to the possibility of the true meaning and the absence of a metaphorical clue, which is the contrast with the virgin. It is only considered after the true meaning is impossible. Thus, it does not mean an elderly woman. In either case, it is an absolute truth, encompassing permission, choice, undertaking, and executing the contract, as in other contracts, contradicting Ash-Shafi‘i’s view with the Exalted’s sayings: until she marries another husband [Al-Baqarah: 230], that they marry their husbands [Al-Baqarah: 232], and there is no blame upon you for what they do with themselves by what is right [Al-Baqarah: 234]. Also, what Abdul Razzaq narrated from Khansa’s Hadith: "Marry whomever you wish." The default in attribution is to the actual doer, and one does not resort to rational or elliptical metaphor unless necessary, which is not the case here, supported by the Hadiths we narrated, which state that guardians or fathers have no authority over a mature widow or previously married woman. The response to Ash-Shafi‘i’s arguments: As for the verse, the address is to the husbands, as clarified by the preceding: When you divorce women and they reach their term [Al-Baqarah: 231]. Making the address to the guardians contradicts the Qur’an’s text and its explicit context, as Al-Fakhr ar-Razi established in his exegesis, and some prominent Dehlawi scholars chose in "Al-Musaffa Sharh al-Muwatta." As for the Hadiths, they are weak, containing unknowns and weak narrators. Moreover, As-Suyuti, the Shafi‘i, in "Qut al-Mughtadhi Sharh at-Tirmidhi," regarding: "No marriage except with a guardian," said the majority interpreted it as negating validity, while Abu Hanifah interpreted it as negating perfection. Thus, it is recommended for us that a woman’s marriage be through a guardian, and for one without a guardian, it is the judge. As for the rational response, choice in transactions is achieved by maturity. Indeed, in marrying an unequal match, there is a semblance of poor choice, so the guardian has the right to object. This is the detailed auditory and rational arguments from both sides, and the issue’s verification is sought from "Al-Binayah," "Fath al-Qadir," and the commentaries of Bukhari and Muslim. The second issue is whether a mature virgin can be compelled by the guardian in marriage, as with a non-mature virgin, or not. The Shafi‘is hold the former, the Hanafis the latter. The default is that the compelling guardianship’s reason, for us, is minority, and for them, virginity. The issue is detailed in the mentioned books, auditorily and rationally, so seek it there. The narrated Hadiths in the book support the Hanafi view in several ways, evident upon reflection. Umm Salamah’s marriage without a guardian, as narrated by the Sunan compilers, supports the Hanafis in the first issue. As for her son, he was young by consensus. When she stated the excuse that she had no guardian, the Prophet (ﷺ) refuted it, saying none of the guardians, present or absent, would disapprove. Thus, it is understood that the guardian is not a pillar of the contract but part of its completion and perfection, as Az-Zuhri and others said, so understand, taken from "Tansiq an-Nizam" ² The statement: "A virgin is not to be married until her permission is sought" For this reason, it is stated in "Sharh al-Wiqayah": Compelling guardianship is established for a minor female, not a mature one, according to us. According to Ash-Shafi‘i, it is established for a virgin, not a previously married woman. Thus, a minor virgin is compelled by consensus, not a mature previously married woman by consensus. A mature virgin is not compelled according to us but is compelled according to him. A minor previously married woman is compelled according to us, not according to him. According to us, every guardian has compelling guardianship, while according to Ash-Shafi‘i, the compelling guardian is only the father or grandfather ³ The statement: "The Prophet (ﷺ) married her when she was seven years old, etc." This Hadith is cited to prove that a father may marry his minor daughter without her permission. The Hadith: "A widow is not to be married until she is consulted, and a virgin is not to be married until her permission is sought," in its generality, makes an exception for the minor due to Aishah’s story (may Allah be pleased with her). The guardian’s marrying a minor male or female compulsorily is also supported by the Hadith: "No marriage except with a guardian," which, according to us, is interpreted as referring to this compelling guardianship to reconcile the evidence, taken from "Nayl al-Awtar" and "Umdat ar-Ri‘ayah"

¹ The statement "the Jews would have turned me into a donkey" means they would have made me foolish and humiliated. The meaning is that they were sorcerers who were angered by my Islam. Were it not for my seeking refuge with these words, they would have overpowered me, subdued me, and made me foolish and humiliated like a donkey - which is a metaphor for humiliation. It does not mean they actually transformed him, as transforming realities is only in Allah's power, as He says: "Be as apes, despised" (2:65), and "It seemed to him from their magic that their ropes and staffs were moving" (20:66). This shows the extent of their magic, which was the pinnacle of what sorcerers could achieve in Pharaoh's time while seeking his wealth and status. If they could have done more, they would have done so against Moses. If they couldn't do it against Moses, how could they do it against the best of creation who manifested truth? As Al-Bayhawi said: Magic refers to what is achieved through seeking help from Satan in matters beyond human capability. If Satan cannot transform himself into a donkey, let alone others, how could those who seek his help transform realities?

¹ The statement "from the whisperings of devils" indicates that fright in dreams comes from Satan. As mentioned in Al-Mirqat.

² The statement "he would hang it around their necks" establishes the permissibility of wearing amulets containing Allah's names. As stated in Al-Mirqat. Some people confuse amulets (ta'wiz) with talismans (tamimah), but they are different. Talismans are beads, while amulets are permissible if they contain Quran or Allah's names. Al-Zayla'i said: Some people confuse ruqya (healing recitations) with talismans, which were strings tied around necks or arms in pre-Islamic times to supposedly ward off harm - this is prohibited and considered disbelief. In Al-Mujtaba: There are differences regarding healing with Quran - whether by reciting over the sick, writing and hanging it, or washing the writing and drinking it. The Prophet (ﷺ) used to seek refuge for himself, and people today follow this practice based on authentic narrations. There is no harm in women or menstruating women wearing amulets on their arms if properly wrapped. In Al-Khaniya: A woman wanted to wear an amulet to make her husband love her - this is prohibited. Writing religious texts during non-Islamic festivals or nailing them to doors is disliked as it disrespects Allah's name. [Summarized from Al-Durr al-Mukhtar]

¹ The statement: “He will have the reward of charity for each day”: There are hadiths on the virtue of lending, and the general Qur’anic and hadith evidence on the merit of helping, fulfilling a Muslim’s need, relieving his distress, and meeting his needs encompass this. There is no disagreement among Muslims regarding its legitimacy. This is stated in Nail Al-Awtar.

¹ “No jalab…”: Al-Qadi said jalab in racing is having someone follow and urge the horse; janab is keeping an unridden horse alongside to switch to if the ridden one tires. Jalab and janab in zakat were explained in the zakat chapter. Shighar is marrying one’s sister to another in exchange for his sister without dowry, derived from a deserted town, as the contract lacks dowry. The hadith indicates this contract’s invalidity, as it would otherwise exist in Islam, per most scholars. The invalidity stems from sharing intimacy as dowry. Abu Hanifah and Ath-Thawri say the contract is valid with dowry of the like. Ibn Al-Humam said the negation targets shighar’s essence, i.e., no dowry and intimacy as dowry. We negate this essence, invalidating such a marriage, but allow a marriage with an invalid dowry, requiring dowry of the like, as with a marriage naming wine as dowry. [From Al-Marqah]. Ayyad said there is no dispute on prohibiting shighar initially. If it occurs, Kufis, Al-Layth, Az-Zuhri, and Ata enforce it with dowry of the like; Malik and Ash-Shafi‘i invalidate it. [From Sharh Az-Zarqani]. Hanafis and Ash-Shafi‘i say the condition is invalid, not the marriage; Malik and Ahmad have two narrations. [From Sharh Al-Qari].

² “Whoever robs…”: This relates to the prior three, as taking wealth unjustly, like jalab and janab in horses, is a form of robbery. Similarly, causing distress, as in zakat’s jalab and janab, or shighar leaving women’s rights on husbands or guardians, is robbery. [From Al-Kawkab Ad-Durri].