Islamic Fiqh > Judgment and testimony > Guardianship of the incapable: minors, spendthrifts and the insane > The lifting of interdiction (hajr) from the boy and the girl
Contents
Updated on 26 September 2026 at 7:12 PM
This part belongs to the full section: All sections of this part.
This first part of the chapter on the causes of legal interdiction (hajr) gathers seventeen leaves of the fiqh encyclopedia: the consensus on interdicting the minor and its lifting at maturity, the definition of rashd (sound conduct with wealth), the timing and method of testing the orphan, the acts of the minor before puberty, destruction committed by the minor and the insane, the minor's liability, the question of the ruler's judgment in lifting the interdiction, the signs of puberty, then the interdiction of the insane and its lifting, the interdiction of the slave, and the interdiction of the prodigal adult of sound mind (safih), with the definition of prodigality and the role of the judge in interdicting him and releasing him. Each leaf cites its Quranic and prophetic evidence, the exact positions of the Hanafis, Malikis, Shafi'is and Hanbalis, and the classical references.
As for orphans who have not reached puberty, the interdiction upon them is agreed upon by consensus, by the explicit text of the Quran (Raudat al-Mustabin, commentary on Kitab al-Talqin, 2/1109). Ibn Hubayra (may Allah have mercy on him) said: they agreed that minority is among the causes that necessitate interdiction (al-Ifsah 1/426). Ibn Rushd (may Allah have mercy on him) said: the scholars agreed on the obligation of interdicting orphans who have not reached puberty, by the word of Allah: "Test the orphans until they reach the age of marriage" (Bidayat al-Mujtahid 2/210).
"Test the orphans until they reach the age of marriage; if you perceive in them sound conduct (rushd), then hand over to them their property."
Surah An-Nisa, 4, 6
Ibn Hazm (may Allah have mercy on him) said: they agreed on the obligation of interdicting whoever has not reached puberty, as well as whoever is insane, feeble-minded (ma'tuh) or utterly deprived of reason; and everything that the one we mentioned executes while his reason is absent or before his puberty, whether a gift, manumission, sale or charity, is void; they differed, however, on permitting him to buy what he cannot dispense with in food and clothing (Maratib al-Ijma, p. 58).
As for the lifting of interdiction from the boy and the girl: the people of knowledge agreed that when the minor reaches maturity (rushd), the interdiction is dissolved and it becomes obligatory to hand over his property to him. Ibn al-Mundhir (may Allah have mercy on him) said: they agreed that the orphan's property must be handed over to him when he reaches the age of marriage and sound conduct is perceived in him (al-Ishraf 6/236), by the word of Allah: "Test the orphans until they reach the age of marriage; if you perceive in them sound conduct, then hand over to them their property"; for the interdiction upon him was only due to his incapacity to manage his wealth properly, in order to preserve his interest; when he becomes able to manage and preserve his property, the interdiction vanishes with the vanishing of its cause (al-Mughni 4/295).
They differed, however, regarding the female: if she reaches maturity, is the interdiction dissolved with regard to her, or does it not dissolve except after marriage? The majority of jurists, namely the Hanafis, the Shafi'is and the Hanbalis in the madhhab, held that it dissolves by her merely reaching maturity, like the boy, by the generality of the word of Allah: "if you perceive in them sound conduct, then hand over to them their property"; for she is an orphan who has reached adulthood and whose sound conduct has been perceived: her property is thus handed over to her like the man's; and because, being an adult of sound judgment, she may dispose of her property, like the one whose husband has consummated the marriage.
Imam Ahmad (may Allah have mercy on him) said, according to one narration: the girl's property is not handed over to her after puberty until she marries and gives birth, or until a year passes in her husband's house, based on what is reported from Shurayh, who said: Umar ibn al-Khattab (may Allah be pleased with him) charged me not to authorize a gift to a girl until she has spent a year in her husband's house or given birth to a child (reported by Ibn Abi Shayba (11), nos. 21914 and 21919, and by al-Bayhaqi in Ma'rifat al-Sunan wa-l-Athar 13/324; its narrators are, according to Ibn Abi Shayba, trustworthy men, because he reports it through al-Sha'bi, from Shurayh, from Umar, in a similar manner).
Ibn Qudama (may Allah have mercy on him) said: according to this narration, if she has not married at all, the interdiction may persist with regard to her, acting on the generality of Umar's tradition (may Allah be pleased with him), and because the condition for handing over her property has not been fulfilled: handing it over to her is therefore not permitted, as if she were not mature. Al-Qadi said: in my view, her property is handed over to her when she becomes a mature woman and appears before men, meaning when she grows older (al-Mughni 4/299).
The Malikis said: the interdiction is not dissolved from the minor girl, even when she becomes an adult, until she marries, her husband consummates the marriage, and she proves capable of preserving her property. The virgin girl's exit from the interdiction of her three guardians, namely the father, the executor of the will (wasi) and the judge's appointee, therefore requires two conditions: first, the husband's consummation of the marriage; second, the testimony of upright witnesses attesting to her good state; the recourse to testimony is explained by the fact that women's tendency is prodigality, so sound conduct is measured only by safeguarding wealth, not religion.
Al-Qadi Abd al-Wahhab (may Allah have mercy on him) said: the interdiction is not dissolved from the minor girl, even when she becomes an adult, until she marries, her husband consummates the marriage, and she proves capable of preserving her property. Abu Hanifa and al-Shafi'i said: the interdiction dissolves by puberty alone, with no need for marriage. Their proof: every state in which the father may marry her off without her consent is a state in which the interdiction over property persists, like the minor girl; the girl knows neither her interest nor transactions, nor their meanings nor the benefit of wealth, by puberty alone without marriage; for when she is married and the marriage is consummated, she then knows the things and becomes aware of them: then the interdiction dissolves from her (al-Ishraf 3/39-40, no. 903).
It has also been said: because at puberty she has not mixed with men nor known transactions, and does not know how to set wealth right or recognize the forms of loss: the interdiction upon her therefore continues by antecedent presumption (istishhab), until the husband consummates the marriage, she comes to know men and what is sought of her, her situation becomes exposed, she knows transactions, and it is known of her that she manages her wealth well: her interdiction is then lifted; that is the difference between her and the boy (al-Ma'una 2/159-160).
Al-Qarafi (may Allah have mercy on him) said: the aim of sound conduct is the knowledge of interests; before the choosing of husbands, ignorance and deficiency of knowledge are present. And it is reported from Shurayh (may Allah be pleased with him) that he said: "Umar wrote to me not to authorize a gift to the girl until she has resided in her husband's house and given birth to a child"; for the father's right of compulsion remains, and that right is a form of interdiction, which therefore applies in general; for the word of Allah: "if you perceive in them sound conduct" means setting the property right, which is agreed upon, and we prevent that setting right from being realized before the mentioned limit (al-Dhakhira 8/228, 230; Bidayat al-Mujtahid 2/210; Tahbir al-Mukhtasar 4/165, 167; al-Sharh al-Kabir 4/484-485; Mawahib al-Jalil 6/487-488; Sharh Mukhtasar Khalil 5/296; al-Ifsah 1/428).
The jurists differed on the meaning of rashd in the word of Allah: "Test the orphans until they reach the age of marriage; if you perceive in them sound conduct, then hand over to them their property": is it rectitude in property alone, or rectitude in property and religion together? The Shafi'is in the madhhab held that rashd is rectitude in religion and property all together: he therefore commits no unlawful act that nullifies justice, whether a major sin or persistence in a minor sin; for the wicked (fasiq) is not mature, and his corruption of his religion prevents trust in him for preserving his property, just as it prevents accepting his word and his establishing guardianship over others, even if no lie or prodigality is known of him.
He is not prodigal in the sense that he does not lose his property by accepting a gross loss (ghabn fahish) in a transaction, by throwing it into the sea or spending it on the unlawful; and the soundest view is that spending it in charity, in works of goodness, and on food and clothing unbecoming of his state is not prodigality (Mukhtasar al-Muzani 1/110; al-Hawi al-Kabir 6/357; Raudat al-Talibin 3/383-384; Mughni al-Muhtaj 3/112-113).
The majority of jurists, namely the Hanafis, the Malikis, the Hanbalis, and the Shafi'is according to one view, held that rashd is rectitude in property alone, by the previous verse: it establishes the handing over of property in an indefinite form (nakira), and whoever sets his property right manifests sound conduct; and because justice is not taken into account in rashd continuously, it is not taken into account at the outset either, like asceticism in this world; and because such a person sets his property right and thus resembles the just man: this is confirmed by the fact that the interdiction was upon him only to preserve his property, so what matters is what affects the loss or preservation of property.
And if rashd were rectitude in religion, interdicting the disbeliever would be more warranted than interdicting the wicked. If the wicked spends his wealth on acts of disobedience, such as buying wine and instruments of amusement, or leads to corruption through it, he is not mature, for having squandered and wasted his property without benefit, despite a divergence on this point; but if his wickedness lies in something else, such as lying, withholding zakat or neglecting prayer, while he preserves his property, his property is handed over to him; for the purpose of interdiction is preserving property, and his property is preserved without interdiction: that is why, if wickedness occurs after his property has been handed over, it is not withdrawn from him.
The Prophet (peace be upon him) indeed applied the legal punishments (hudud) and did not interdict those upon whom he applied them regarding their property; likewise Abu Bakr, Umar and Uthman (may Allah be pleased with them), and it is not reported that they interdicted those upon whom they applied them. The instinct for property is natural and the instinct for religion is legal; the natural one is stronger: proof of this is the acceptance of the confession of the corrupt wicked man, for his instinct there is natural, and the rejection of his testimony, for the instinct there is legal: justice was required in testimony, not in confession (al-Jawhara al-Nayyira 3/270; al-Ikhtiyar 2/118; al-Hidaya 3/284; al-Inaya 13/235; Mukhtasar al-Wiqaya 2/410; al-Ishraf 3/37-38; al-Qawanin al-Fiqhiyya, p. 111; al-Bayan wa-l-Tahsil 14/22; al-Dhakhira 8/231; al-Ifsah 1/427-428; al-Mughni 4/301-302; Matalib Uli al-Nuha 3/404).
The jurists differed on the timing of the test (ikhtibar): does it take place before puberty or after? The Malikis in the famous view, the Shafi'is in the view opposite to the soundest, and the Hanbalis according to one narration held that the test takes place only after the orphan has reached puberty: the verse includes the prohibition of handing over to the young any part of his property, and the test is what yields knowledge of sound conduct through managing property; if the Law forbade handing it over to him, the path of knowledge leading to the knowledge of sound conduct is cut off: the test must therefore take place after puberty.
Moreover, the word of Allah: "if you perceive in them sound conduct" means: when you know them; the verb being past tense, when placed after the conditional particle it refers to the future: the handing over of property therefore requires an act that will take place in the future, and knowledge is only obtained through testing: the test therefore cannot take place except after puberty.
The Hanafis, the Shafi'is in the madhhab, the Hanbalis in the madhhab, and some Malikis held that the test takes place before puberty, by the word of Allah: "Test the orphans until they reach the age of marriage": He thus placed the test before reaching the age of marriage, that is, puberty (ihtilam); the orphan exists only outside puberty, and there is no orphanhood after puberty.
The antecedence intended is the time close to puberty, so that his sound conduct appears and the property is handed over to him. The particle "until" (hatta) was set as the limit of this test: if this test, before puberty, produces a general impression in the mind regarding the orphan's sound conduct, his property is handed over to him immediately after puberty; and the word of Allah: "if you perceive in them sound conduct" carries the particle fa of consequence, meaning: if you know of them, through that prior test, sound conduct, then hand over their properties promptly.
And because the orphan, upon reaching puberty, may in the knowledge of Allah already be mature, and detaining the property of a mature person is unlawful: if the test took place after puberty, we would fear falling into the unlawful, and the precaution lay in fleeing it, which is obtained only by testing before puberty.
Ibn Qudama (may Allah have mercy on him) said: the time of the test is, according to one of the two narrations, before puberty, for Allah said: "Test the orphans until they reach the age of marriage; if you perceive in them sound conduct, then hand over to them their property"; the apparent meaning of the verse is that their test takes place before puberty, for two reasons. The first: He named them orphans, and they are orphans only before puberty. The second: He extended their test up to puberty by the word "until", which indicates that the test precedes it; and because delaying the test until puberty leads to interdicting the adult of sound conduct, the interdiction extending until he is tested and his sound conduct known, whereas testing him before puberty prevents that: it is therefore preferable.
However, only the discerning adolescent is tested, the one who knows selling and buying, benefit and harm; and as soon as his guardian permits him to dispose, his act is valid. Imam Ahmad (may Allah have mercy on him), however, indicated in one place that his test takes place after puberty, because his act before that is the act of one in whom no measure of reason is presumed (al-Mughni 4/302; see Ahkam al-Qur'an by al-Jassas 2/356; al-Taj wa-l-Iklil 4/90; Sharh al-Talqin 3/413; al-Dhakhira 8/230; al-Tawdih, commentary on the Mukhtasar of Ibn al-Hajib, 6/226; al-Tabsira of al-Khatib [al-Khamiyari] 10/5590; Raudat al-Talibin 3/384-385; Mughni al-Muhtaj 3/114-115; Nihayat al-Muhtaj 4/416-418; al-Najm al-Wahaj 4/407-409).
The Malikis said: the manner of the test rests on contemplation and diligent effort, through a way by which the guardian gains insight into the inner state of the orphan and the utmost extent of his ability to hold wealth, manage it and make it grow; what one relies on are the concordant circumstances, and one sometimes encounters among them what cannot be expressed in speech or writing, yet is known in detail: when the orphan reaches the age when he needs someone to feed him and secure his food, then becomes independent in feeding himself and managing his food and sleep, dinars or dirhams are handed over to him in the amount of what he buys his lunch or dinner with; this continues until it is known of him that he has followed the path of the wise and mature; once this description is established for him, it is transferred to him bit by bit, and a small sum of his property above what he spends on his sustenance is handed over to him; he is charged with buying and selling in things one cannot dispense with; and when one is settled in mind about his state, that he follows the path of sound conduct, one moves on to handing him a small sum to trade with; if he preserves it and makes it grow, the guardian adds another capital to him, until it is certain that if he took all his property he would preserve it and make it grow; it is then handed over to him. The aim is to obtain knowledge derived from circumstances, not all of which can be expressed in speech or writing (Sharh al-Talqin 3/414; al-Taj wa-l-Iklil 4/90; al-Dhakhira 8/230; al-Tawdih 6/226; al-Tabsira 10/5590).
The Shafi'is said: the minor's sound conduct is tested in religion and property, by the word of Allah: "Test the orphans", meaning: test them; the male and the female, the Muslim and the disbeliever are alike in this. His test in religion is by observing his state in acts of worship, his avoidance of forbidden things, his precaution regarding doubtful matters, and his keeping company with the virtuous and devout. As for the disbeliever, his rectitude in religion means rectitude as understood by his community. Whoever is charged with the test is anyone in charge of his affair: the paternal kinsmen ('asaba), the ruler or the guardian.
As for the test in property, it varies with the ranks: the merchant's son is tested by haggling (mumakasa) in selling and buying, namely asking for a reduction of what the seller asks and an increase over what the buyer gives; and when he has been tested in one type of trade, that suffices, with no need to test him in all types; the son of the market keeper is like the merchant's son. The farmer's son is tested by farming and maintaining the hired workers thereby, namely by giving them their wage: they are those hired to look after the interests of the crop, such as plowing, harvest and guarding. The craftsman is tested in what relates to his craft, that is, his father's and relatives' craft: the tailor's son, for example, is tested by estimating the wage; and the prince's son and the like, by giving him a part of his property to spend over a month on bread, meat, water and the like. The one whose father has no craft is tested by supporting the dependents, for whoever has a child depends on that for the most part. The woman is tested in what relates to spinning and cotton, in keeping and the like; this concerns the one to whom spinning and cotton suit; as for the daughters of kings and the like, they are not tested by that, but by what their peers do.
Among the test is safeguarding food from the cat and the like, such as the mouse and the hen; for thereby his management, his preservation of wealth and his freedom from deception become evident, and these are the foundation of sound conduct. And the hermaphrodite (khuntha) is tested by what the male and the female are both tested with, so that the knowledge of sound conduct is obtained.
The Hanbalis said: his sound conduct is only known by testing him, by the word of Allah: "Test the orphans until they reach the age of marriage", meaning: test them, like His word: "that He may test you, [to see] which of you is best in deed" (Surah Hud, 11, 7), meaning: He puts you to the test. The test is by entrusting to him the dispositions his peers perform: if he is among the sons of merchants, selling and buying are entrusted to him; if it is repeated from him without his being cheated or losing what is in his hands, he is mature. If he is among the sons of dignitaries and grandees, whose peers are kept from the markets, an allowance is given to him for a period to spend on his interests; if he is then diligent, spending it in its proper places, demanding account from his agent and checking on him, he is mature. The woman is entrusted with what the housewife is entrusted with: hiring spinners, delegating the purchase of flax and the like; if she proves to manage what is in her hands and demand account from her agent, she is mature.
The test must be repeated twice or more, so that his sound conduct becomes preponderant in near-certainty: one time does not suffice, for he might succeed in it by coincidence (Raudat al-Talibin 3/384-385; Mughni al-Muhtaj 3/114-115; Nihayat al-Muhtaj 4/416-418; al-Najm al-Wahaj 4/407-409; al-Mughni 4/302).
There is no divergence among the jurists on the nullity of the acts of the non-discerning minor, whether selling, buying or otherwise: his word is nullified, to be given no legal weight; no act of worship is valid by it, no punishment is due by it, and neither sale nor purchase is concluded with it; and it continues thus until he reaches the age of discernment (tamyiz).
They then differed on the acts of the discerning minor before puberty: are they valid from him or not? They said: the acts harmful to the minor, such as donating his property or lending it, are not valid from him in any way, whether the guardian consents or not. The beneficial acts, such as accepting a gift, are valid from him even without the guardian's permission. As for the acts oscillating between benefit and harm, such as selling and buying, they differed: the Hanafis and the Malikis said they are valid from him and suspended on the guardian's permission: if he consents, the act passes; otherwise not. The Hanbalis in the madhhab said it is not valid from him except with the guardian's permission: if he consents, the act is valid. The Shafi'is and the Hanbalis according to one view said the minor's acts are not valid in any way, whether the guardian consents or not.
They agreed that if he destroys something he is liable for it; this is the summary, and the detail is as follows: the Hanafis said that the minor either performs an act bearing manifest harm, such as divorce, manumission, donating part of his property or lending it: this is neither valid from him nor executed, even if the guardian consents to it; or he performs a beneficial act, such as accepting a gift or charity: this is valid from him and executed, even without the guardian's permission; or he performs an act oscillating between benefit and harm, such as selling and buying: this is suspended on the guardian's permission, for the transaction may be profitable or losing, without excluding that the transaction may be manifestly profitable and belong then to the second category, selling and buying being in themselves susceptible to both; this category is concluded pending the guardian's ratification, and the guardian may not ratify it if it contains a gross loss (ghabn fahish), as the detail will come.
They said: the act of the discerning minor is permitted only with his guardian's permission; for it is apparent that the guardian only permits it for a clear benefit in view, otherwise he would not permit it. As for the minor who does not discern, it is not permitted, even if his guardian permits it, due to the absence of capacity (ahliyya). The meaning of "who discerns" is that he knows that selling takes away and buying brings, and knows that the price and the object of the price do not come together in a single ownership; and one of the signs that he does not discern is: if he gives money to the confectioner, takes the sweet and starts crying saying "give me back my money", that is the sign that he does not discern; if he takes the sweet and goes off without claiming the money, he discerns. The absence of permission means the absence of execution without the guardian's authorization, not the absence of the contract's conclusion.
If he sells or buys a thing while understanding the contract and intending it, meaning not joking and not mistaken, the jester's sale not being valid even if ratified by the guardian, then the guardian has the option: if he wills he rescinds it, and if he wills he ratifies it, when the act contains a benefit and the loss is not gross; for the gross loss is not permitted, even if the guardian ratifies it, unlike the slight loss.
The minor who does not discern and the one permitted who does not understand selling and buying are interdicted in statements, not in acts; for acts have no reversal, being existent through sense and observation, unlike statements, whose consideration depends on the Law and on the intention which is its condition, except if it is an act to which a judgment repelled by doubt attaches, such as the legal punishments (hudud) and retribution (qisas): the absence of intention then constitutes a doubt in favor of the minor and the insane. These meanings did not entail interdiction in the acts because the acts are valid from them as from others.
As for the permitted minor who understands selling and buying, he is held to his statements in matters of property as he is in acts, to the point that if he confesses that such a man owes him a hundred dirhams, it becomes binding on him. As for the minor who does not discern and the insane, neither their contracts nor their confessions are valid, neither in property nor regarding a legal punishment; for there is no word for them: the consideration of statements in the Law depends on capacity, which is absent in both of them; and the harmful side prevails in view of their imprudence, their lack of concern and their absence of pursuit of interests. As for pure benefit, its pursuit is valid from them, such as accepting the gift and the charity; likewise, if the minor hires himself out and the work proceeds, the wage becomes due. The minor's word is valid concerning another's property, another's divorce and another's manumission if he is an agent.
Their divorce and their manumission do not take place; for divorce and manumission are the relinquishment of a right, and are therefore not valid from the minor and the insane, like the gift and the acquittal; and there is no suspending the minor's divorce on interest in any situation, due to the absence of desire; nor suspending the guardian's on the absence of agreement, in view of the possibility of agreement considering his puberty reaching the threshold of desire; that is why their divorce and manumission do not depend on a ratification and are not executed by their own act, unlike the other contracts. By divorce, his wife's divorce is meant: if a man deputizes a minor to divorce his wife and he divorces her, the principal's wife is divorced; and manumission likewise if it is verbal; as for manumission by tadbir, if he owns a relative with whom marriage is forbidden to him, she is manumitted at his expense.
If the minor and the insane destroy a thing, the obligation of compensation becomes binding on them; for the acts are valid from them, and to revive the right of the victim; compensation is due without intention, as with property destroyed by the overturning of a sleeper or a leaning wall after witnessing; for destruction is a sensory cause and it is the reason for compensation, which is only averted in the legal punishments and retribution, where the absence of intention becomes a doubt and intentional killing reverts to blood money (diya).
Four cases are exceptions to this rule: first, if a person lends money to one of them and he consumes it, there is no compensation upon him. Second, if a person deposits a thing with one of them and he loses it or destroys it, it is lost at the expense of its owner, with no compensation upon the depositee, unlike the deposit made with the father or guardian which one of these interdicted persons destroys: he is then bound by it. Third, if a person lends to one of them (aariya) a thing and he loses it, it is lost at the expense of its owner and he does not answer for it. Fourth, if a person sells to one of them a thing and he loses it, it is lost at the expense of its owner and the interdicted person does not answer for it.
The ground for the interdicted person not bearing compensation in these four cases is when the guardian has not authorized; but if the deposit, the loan, the aariya or the sale took place with the guardian's permission and the interdicted person destroys it, he is bound by it and the compensation is upon him (al-Mabsut 25/20-22; Badai' al-Sanai' 5/135; al-Jawhara al-Nayyira 3/235-240; al-Ikhtiyar 2/113-114; al-Lubab 1/440-443; al-Inaya 13/235; Mukhtasar al-Wiqaya 2/409; Tabyin al-Haqa'iq 5/191; Radd al-Muhtar 6/373; al-Bahr al-Raiq 5/279).
The Malikis said: the minor's acts are either for a financial exchange, such as selling, buying and the gift of reward; or without exchange, such as his gift of part of his property or charity. If he disposes for a financial exchange, such as selling, buying or the gift of reward, without his guardian's permission, the guardian has the choice between ratification and annulment, by the word of Allah: "They ask you about the orphans. Say: setting their affairs right is best" (Surah Al-Baqara, 2, 220): He thus entrusted the guardian with the examination of ratification or annulment according to the interest of the interdicted person; and because annulment and acceptance are among the forms of the guardian's guardianship over the interdicted person in his acts: he may therefore, if he sees what diminishes his property or exposes it to loss in the exchange, annul his act.
If his acts are without exchange, such as a gift, charity and manumission, annulment becomes obligatory upon the guardian, for his destroying his property. Likewise, the annulment of the interdicted person's confession of a debt or destruction of property becomes obligatory upon the guardian. The discerning person who has reached maturity has the right to annul his own act that preceded his maturity if it occurred where his guardian left it, because he did not know of his act, or through forgetfulness, or for having disregarded it without benefit, or if he had no guardian; whether his act is of the kind the guardian has the right to annul, such as exchange, or of the kind whose annulment is obligatory upon him, such as manumission and gift. If he confirms after his maturity, as if he had sworn in his minority: "if I do such a thing, my wife is divorced or my slave is free", then did it after his maturity, he has the right to annul it: neither divorce nor manumission becomes binding on him, and he has the right to confirm it; for the cause occurred in a state where it does not count, no oath being concluded upon the minor, the religious instinct being absent from him and the pen being lifted.
Likewise, if his act took place during his childhood in a valid manner, he has the right to annul it after his maturity and to confirm it where his guardian left it.
The minor, even if not discerning, is liable to compensate what he has spoiled of another's property, upon his liability (dhimma): the value of what he spoiled is taken from his present property if he has any, otherwise it is pursued in his liability until property exists, if trust (amana) is not extended to the minor for what he destroyed. If he is granted safety (umina), no spoil occurs and there is no compensation upon him; for whoever granted him safety gave him authority over its destruction; he is interdicted, and if the interdicted person were to compensate, the utility of interdiction would be void; if the one who granted him safety is the owner of the property, it is lost in vain; if it is another, the compensation is upon the one who trusted him, for his negligence.
It often happens that a man sends a thing with a minor to deliver it to the people of a place, and it is lost through the minor or destroyed: there is then no compensation upon the minor, but upon the one who sent it; if the sender is the owner of the property, it is a loss in vain.
The insane and the non-discerning minor, if they destroy property or an injury occurs from them, even against themselves, compensate the property upon their liability; the blood money (diya) is upon their guarantors ('aqila) if it reaches a third, otherwise it is upon their properties wherever found, for its attachment to liability (Tahbir al-Mukhtasar 4/162-163; al-Sharh al-Kabir 4/478-480; al-Taj wa-l-Iklil 4/77-78; Sharh Mukhtasar Khalil 5/292-294; Mawahib al-Jalil 6/479-482; Bulghat al-Salik with al-Sharh al-Saghir 3/342-346; al-Taj wa-l-Iklil 4/90; al-Dhakhira 8/232).
The Shafi'is said: the minor's act is not valid, whether his guardian permitted it or not; for the invalidity of the act is the very utility of interdiction (al-Tanbih 1/102; Raudat al-Talibin 3/9; al-Wasit 3/390; Mughni al-Muhtaj 2/417; Nihayat al-Muhtaj 3/444-445; al-Najm al-Wahaj 4/17; al-Siraj al-Wahaj 206; Hashiyat I'anat al-Talibin 3/14).
The Hanbalis in the madhhab said: the sale of the discerning and of the prodigal (safih) is not valid so long as their guardian has not authorized it; if he authorizes, it is valid, by the word of Allah: "Test the orphans", meaning: test them to learn their sound conduct, which is realized by entrusting selling and buying to them; permission without benefit is forbidden; and their act in the trivial thing is executed without authorization. According to the other narration among the Hanbalis: the minor's sale is not valid until he reaches puberty, for he is not legally responsible, resembling the non-discerning; and because it is a hidden matter which the Lawgiver bounded by a limit, namely puberty; the prodigal is interdicted for his bad management and prodigality: if his guardian permits him, he permits what has no benefit in it, and it is not valid without his permission, except in the trivial thing; for the wisdom of their interdiction is the fear that their properties be lost through their own acts, which is absent in the trivial thing; supporting this: Abu al-Darda bought a bird from a minor then set it free (al-Mughni 4/168; al-Kafi 2/195; Kashshaf al-Qina' 3/172-173; al-Mubda' 4/8; al-Insaf 1/725).
The jurists differed concerning the minor who has become mature: does the interdiction dissolve from him of itself, or is the ruler's judgment required? The Malikis and some of the Shafi'is said it dissolves only through a ruler; for it is a place of interpretive effort and examination: knowing puberty and sound conduct requires effort, which is suspended on the ruler's judgment, like the lifting of interdiction from the prodigal.
The Shafi'is in the madhhab and the Hanbalis said that the ruler's judgment is not taken into account in the lifting of interdiction from the minor who has become mature; for Allah commanded the handing over of their properties at puberty and upon perceiving sound conduct: requiring the ruler's judgment is an addition that prevents the handing over when it is obligatory without it, contrary to the text; and because it is an interdiction without the ruler's judgment that dissolves without his judgment, like the interdiction of the insane; in this the minor differs from the prodigal (Mughni al-Muhtaj 3/115; Nihayat al-Muhtaj 4/419; al-Najm al-Wahaj 4/410; al-Mughni 4/295).
If the minor becomes an adult without being mature, his property is not handed over to him: the people of science agreed that the minor who becomes an adult without maturity, according to the previous divergence on the definition of rushd, is not handed his property and the interdiction persists upon him, according to the opposing sense of the word of Allah: "Test the orphans until they reach the age of marriage; if you perceive in them sound conduct, then hand over to them their property".
They differed, however: does the interdiction persist upon him forever, until he becomes mature, even if he reaches a very old age, or until he reaches twenty-five years? The majority of jurists, namely the Malikis, the Shafi'is, the Hanbalis and the two companions of the Hanafis, Abu Yusuf and Muhammad, said that it persists until sound conduct is realized in him; for Allah said: "if you perceive in them sound conduct, then hand over to them their properties": this is a decisive verse (muhkam) that nothing has abrogated; it is therefore not permitted to hand over the property before sound conduct is perceived of him. Do you not see that at puberty, if sound conduct is not perceived of him, the property is not handed over to him by this verse? It is the same if he reaches twenty-five years; for imprudence hardens with the length of time, and imprudence, in the status of barring property, is like madness and idiocy, which prevent the handing over of property after twenty-five years as before; so too imprudence.
The common meaning of both is that the cause for which the orphan was barred from his property is the fear that he lose it through his deceits and imprudence: so long as the cause persists, the ruling is not lifted; and when the cause vanishes, the ruling vanishes; such is the meaning of the word of Allah: "if you perceive in them sound conduct, then hand over to them their properties". And because Allah suspended the handing over on two conditions, namely puberty and sound conduct, and a ruling suspended on two conditions is not established without them.
Imam Abu Hanifa (may Allah have mercy on him) said: if he becomes an adult while prodigal, he is not interdicted from acts at all; his state and that of the mature person are equal in acts: they differ only in one respect, namely that the minor become an adult while prodigal is deprived of his property until twenty-five years, whereas if he becomes an adult mature, his property is handed over to him. As for acts, they do not differ: even if he disposes after becoming an adult prodigal and deprived of his property, his act is executed as it is executed after the property is handed over, by the word of Allah: "And do not approach the orphan's property except in the best manner, until he reaches his maturity" (Surah Al-An'am, 6, 152): he has reached his maturity and is fit for seriousness; for he is free, adult, rational, legally responsible: he is not interdicted, like the mature person; and because the deprivation of property is a manner of discipline, and there is no discipline after this period for the most part: do you not see that he may become serious at this age? It is impossible that he be serious without having reached his maturity. And Allah said: "and do not consume it wastefully and hastily, before they grow up" (Surah An-Nisa, 4, 2), meaning: that they grow up and the handing over of their property becomes obligatory upon you; and He said: "And give to the orphans their properties" (Surah An-Nisa, 4, 2), intending the adults: this is an explicit text on the obligation of handing over property after puberty; except that evidence has been established of the deprivation of property after puberty if sound conduct is not perceived of him, and it is what follows: Allah said: "until they reach the age of marriage; if you perceive in them sound conduct": the particle fa marks connection and consequence, so that the handing over of property follows immediately upon puberty on condition of perceiving sound conduct, or what is close to puberty in the meaning of the state of puberty.
Beyond that, the obligation of handing over property is absolute, unconditioned; the age of puberty is eighteen years, and we estimated the duration of proximity at seven years, in consideration of the duration of discernment at the outset, according to what the Prophet (peace be upon him) indicated by his word: "Command them to pray when they reach seven years." We then showed that the effect of childhood remains after puberty until a time has passed, and that the persistence of the effect of childhood equals childhood itself in barring property; and that effect does not remain after twenty-five years, given the length of time since puberty; that is why Abu Hanifa said, as will come in the chapter on the interdiction of the free prodigal: if he becomes an adult mature then becomes prodigal, the property is not withdrawn from him; for this is not an effect of childhood, which alone is considered in barring property; or the barring of property aims at discipline, and discipline applies as long as the hope of it is not cut; when he reaches twenty-five years without sound conduct being perceived of him, the hope of discipline is cut, for it is imagined that he might become serious, puberty by emission being realized after twelve years.
Abu Yusuf and Muhammad said: the state of the one who becomes an adult prodigal is the state of the rational minor and of the adult with deficient intellect (ma'tuh): they are all equal; his sale, purchase, hire, gift, charity and the like among acts susceptible of rescission and annulment are therefore not executed. As for the rest, his state and that of the rational mature adult are equal: his divorce, marriage, manumission, tadbir and istila' are permitted; zakat is due on his property; the pilgrimage (hajj) is obligatory upon him if he is able with provisions and mount; his bequest is executed in the third; his confession upon himself of what entails punishment is permitted, as when he confesses the obligation of retribution for a life and what is below it; he spends on his wives and relatives and pays the zakat of his property; he is not prevented from the pilgrimage, nor from the 'umra, nor from the offerings nor from driving the sacrificial animal; but the judge hands over the expenditure, the hire and the offering into the hands of a trustworthy man to provide for him on the road; his father, his grandfather and their guardian have no guardianship over him; his confession upon himself of the legal punishments and retribution is permitted; his bequests of nearness in death illness, up to the third of his property, are permitted; and the rest of the acts valid from the rational mature adult; except that if he marries a woman for more than the dower of her like, the excess is void. Beyond that, they do not differ. If he sells or buys, the judge examines: what is good he ratifies, and what contains harm he annuls (al-Mabsut 24/161-162; Badai' al-Sanai' 7/171; al-Ikhtiyar 2/115-116; al-Jawhara al-Nayyira 3/244-246; al-Lubab 1/444-445; Mukhtasar al-Wiqaya 2/410; al-Hidaya 3/282; Tabyin al-Haqa'iq 5/195; al-Bahr al-Raiq 8/91; Majma' al-Damanat 2/899; Ahkam al-Qur'an by Ibn al-'Arabi 1/403; Tafsir al-Qurtubi 5/9; al-Qawanin al-Fiqhiyya 211; Raudat al-Talibin 3/384-385; Sharh Sahih Muslim by al-Nawawi 12/191; Mughni al-Muhtaj 3/115; Nihayat al-Muhtaj 4/419; al-Najm al-Wahaj 4/409; al-Mughni 4/296; al-Ifsah 1/430).
The question will come in detail in the chapter on the ruling of interdicting the prodigal, Allah willing.