Islamic Fiqh > Judgment and testimony > Guardianship of the incapable: minors, spendthrifts and the insane > Acts concluded before the legal interdiction (hajr)
Contents
Updated on 26 September 2026 at 7:12 PM
This part belongs to the full section: All sections of this part.
This second part of the chapter on the legal interdiction (hajr) first completes the treatment of acts concluded by the prodigal (safih) before his interdiction, together with the exceptions tolerated in his favor, then examines the one in charge of the minor, the insane and the prodigal, and the extent of the guardian's disposal, before turning to the second family of causes of interdiction: those aimed at the benefit of others, foremost among them the insolvent (muflis), with its conditions, detention and effects. Added to these are the interdiction of the terminally ill, that of the wife regarding what exceeds a third of her property, and that of the apostate. The 17 sheets below are a faithful and full translation of the encyclopedia of fiqh: exact school positions, the takhrij of hadiths and classical references are preserved.
4 - The pardon of retribution (qisas): the one who holds an established right of qisas against an aggressor, or against the one answering for him, may waive it: the pardon binds him and is not revoked. As for accidental or intentional injury that entails an obligation of money, such as the indemnity due for a wound (jayida), he has no faculty to waive it, because it belongs to his patrimony, over which he is barred from disposing by the effect of the interdiction; unlike the minor, who has absolutely no faculty to pardon at all.
5 - Confession entailing a punishment: if he says "I committed an assault against Zayd" or "I slandered him", the legal punishment (hadd) becomes due upon him, because a sane person is not suspect when he confesses a lie that leads to his death, whereas he is suspect when he confesses a debt of money that leads to the squandering of his wealth, for an interest that sane, mature people would not pursue. The secret is that the natural deterrent holds one back from confessing to qisas and the legal punishments, and pushes toward pleasures and desires; this is why his confession regarding his own body is accepted as an established legal cause, and not as a debt of money.
The insane, by contrast, is bound by none of this in general, like the minor: as for the diyia, if it reaches a third or more, it weighs upon their two combined solidarity groups (aqila), otherwise upon each of them, as with money, as mentioned previously.
Acts concluded before the interdiction: the act of the male prodigal whose prodigality is established, left without a guardian, performed before the interdiction over his property, is final and not annulled according to the predominant opinion, even if he disposed of it without compensation, as in freeing a slave; for the cause of annulment is the interdiction, and it is absent. It is different with the minor's act: it is not final and he may obtain its annulment; likewise the neglected female prodigal: her act is annulled, even if she married, unless a husband has consummated the marriage and their union has lasted, for example seven years or more, in which case her acts become final and are no longer annulled. His act after the interdiction is annulled, however well it may be conducted, so long as he is not released by an executor, a judge or an appointed administrator, for the cause of the interdiction persists.
Ibn al-Qasim (may Allah have mercy on him) and some Malikis said: his act is annulled, because the cause of it, prodigality, still exists. Al-Maziri (may Allah have mercy on him) said: my most rigorous shaykhs prefer the annulment of his acts, and hold that prodigality is the cause of the annulment, while the ruling of interdiction is not its cause; for interdiction is only the removal of prodigality, and prodigality is stronger and is the reason for it: it is not the ruling of interdiction that establishes the interdiction and makes it binding, rather prodigality is the cause and the ruling is its effect; the order of things cannot be inverted so that the effect becomes cause and the cause effect.
Whoever followed the opposite view considered that establishing prodigality requires investigation and inquiry, a matter over which the madhhab differs as to its nature, as we have explained, and whose establishment, being disputed and requiring investigation, is not pronounced without the ruling of a judge; especially since annulling his acts harms his contracting parties: they see a man disposing freely of his property without anyone objecting, so they deal with him, and if we annulled their transactions we would harm them although they were neither negligent nor at fault. It is different from their transaction with a prepubescent minor or an insane person: their transaction with him is annulled because they themselves know they are dealing with someone who wastes his money and is careless in his affairs; indeed the cause of the annulment of their acts there is evident and requires neither investigation nor the arbitration of a judge: childhood and insanity are two observable states, unlike prodigality (Sharh al-Talqin 3/216-217, see also Bilghat al-Salik 3/422-423, al-Dhakhira 7/110-111, al-Furuq 2/205 and al-Ishraf 3/43-44).
The Shafi'is said: no sale is valid from the one interdicted for prodigality, even a bargain sale (ghibta), no purchase, even on credit, nor manumission nor gift over any part of his property; for validating that would nullify the very meaning of the interdiction. As for a gift made to him, the soundest view is its validity, for he suffers no loss but rather realizes a gain. The acceptance of a bequest (wasiyya) in his favor is not valid according to the predominant opinion, because it is a financial disposition; al-Mawardi, al-Ruyani and al-Jurjani, however, definitively ruled on its validity by analogy with the validity of accepting a gift. The difference between the two is that the acceptance of a bequest is an acquisition, unlike the acceptance of a gift; and the acceptance of a gift further requires immediacy, whereas the guardian may be absent and the gift lost, which cannot happen with a bequest.
Al-Mawardi (may Allah have mercy on him) said: if we validate that acceptance, it is not permitted to hand to the interdicted person the gifted item or the bequeathed item; if they are handed to him, he guarantees the bequeathed item but not the gifted one, for the bequeathed item has become his property by his acceptance, unlike the gifted one.
None of these dispositions is valid from him, unless his guardian authorizes him, according to one of the two views, just as marriage is valid if he is authorized for it. According to the other view: it is not valid, for market prices fluctuate from one moment to the next, which requires the guardian's contract; and because sale and purchase involve only money, the domain over which he is interdicted, unlike marriage.
It is also not valid from him for a marriage he would conclude for himself without his guardian's permission, for marriage entails an obligation of money: it is therefore not valid without the guardian's permission. If he needs to marry, the guardian has the choice: either he marries him off himself and conducts the contract, or he authorizes him to conclude it himself, for he is sane and legally responsible; the interdiction was decreed against him only to preserve his money, unlike the minor. As for the acceptance of marriage by proxy, it is valid; as for the proposal (ijab), it is never valid, neither in person nor by proxy, whether the guardian authorizes it or not.
If he buys from or borrows from a person of sound judgement and takes possession with his permission, or if the latter hands it to him and the item perishes in his hands before he demands its return, or if he destroys it: no guarantee is due, neither immediately nor after the lifting of the interdiction, whether the person who dealt with him knew his condition or not; for the one who dealt with him enabled him to destroy it by handing over possession, and he had the right to inquire into his condition before dealing. It is debated whether he never guarantees or guarantees after the lifting of the interdiction: two opinions. But if he took it from a person lacking sound judgement, or from a person of sound judgement without his permission or handover, or if the item perished after the demand for restitution, he guarantees it.
Likewise, if he married without permission and consummated the marriage, nothing is due upon him. If the item remained in his possession until he became of sound judgement, and he was able to return it, then it perished without his returning it, he guarantees it, as if he had destroyed it deliberately.
With the guardian's permission, his marriage is valid, but not the financial disposition according to the soundest opinion, for his legal capacity is removed, as if a minor were authorized; according to the other view: it is valid like marriage. The first view is justified in that the purpose of the interdiction is the preservation of money, not marriage. The two views apply where the guardian has specified for him an amount equal to the price, otherwise it is never valid; they also apply to acts with compensation, such as sale: if it is an act without compensation, such as manumission or gift, it is never valid.
A few questions are excepted from that:
His confession concerning marriage is not valid, just as his denial is not. No debt results from a transaction whose obligation is attributed to the period before the interdiction or to the period after it, as with the minor; and his confession concerning an item in his possession during the interdiction is not accepted, nor his confession concerning the destruction of property or an offense entailing money according to the more apparent view, such as a transaction debt. According to another view: it is accepted, for if he commits the destruction he guarantees it, so if he confesses to it, the confession is accepted.
His confession to a legal punishment or to qisas is valid, for no money is attached to them and suspicion is far removed, even if the punishment is the amputation of the thief; but money is not due upon him. And if the holder of the qisas right pardons after his confession for money, the money becomes due, for it depended on another's choice, not on his confession.
His divorce, his return (raj'a) and his compensated divorce (khul') from his wife, with or without an equivalent dower, are valid. Likewise his zihar, his vow of abstinence (ila), the denial of paternity he pronounces against his wife's child by imprecation (li'an), and the one he pronounces against his slave woman's child by oath, for these matters, with the exception of the khul', do not touch the money for which he was interdicted.
As for the khul', it is because if his free divorce is valid, divorce with compensation is so a fortiori, provided the money is handed to his guardian: if she hands it to the interdicted person himself and it perishes in his hand or he destroys it, she guarantees it; and even if the prodigal's guardian permits the woman to hand the money to the prodigal and she does so, she is not absolved according to the madhhab, for he is not qualified to receive. His attribution of paternity (istilhaq) is valid, and he is supported from the public treasury (bayt al-mal).
In obligatory worship in general, and in bodily recommended worship, such as voluntary fasting, his status is that of the discerning person, for all the conditions are met. As for recommended worship of money, such as voluntary charity, he is not like the discerning person, but he cannot distribute the zakat himself, for that involves guardianship and a financial disposition; unless his guardian authorizes him and designates the recipient: his payment is then valid, like the discerning minor, and as a stranger may be delegated for that. However, the payment must take place in the guardian's presence or that of his deputy, for the money may be lost if he is left alone with it, or he may falsely claim to have paid it; the expiation (kaffara) holds the same status as the zakat. His vow entailing a debt of money is valid, but not his vow over a specific item of property; the validity of his vow mentioned above means that it remains due upon his liability until the lifting of the interdiction.
If he enters into consecration (ihram) during the interdiction for an originally obligatory hajj, or a makeup hajj, or a hajj vowed before the interdiction, the same applies after: the guardian provides what covers his expenses, entrusting his spending on the way to a trustworthy person, even for a fee, or the guardian travels with him for fear of his negligence. If he spoils his obligatory hajj through intercourse during his prodigality, he must continue and make it up, and the guardian pays him the expenses of the makeup. If he enters ihram during the interdiction for a voluntary hajj or umra, or by a vow after the interdiction, following the path permitted by the Law, which is the predominant opinion, and his travel expenses for completing the rites or for returning exceed his usual residence expenses, the guardian may prevent him from completing or returning, in order to preserve his money. The madhhab is that he is like the blocked pilgrim (muhsar): he is released by fasting, for he is deprived of money (Rawdat al-Talibin 3/386-389, al-Bayan 6/233-237, Mughni al-Muhtaj 3/117-120, Nihayat al-Muhtaj 4/420-428, al-Najm al-Wahhaj 4/412-420, al-Dibaj 2/241-244).
The Hanbalis said: the prodigal's marriage is not valid if he does not need it, except with his guardian's permission, for it is a disposition that gives rise to an obligation of money: it is therefore not valid without the guardian's permission, like purchase. If he needs to marry, the marriage is valid with an equivalent dower without his guardian's permission, for the permission there serves a pure interest, and marriage was not legislated for the pursuit of money, whether he needs it for pleasure or for service.
If the guardian commands him to marry, the prodigal may override his prevention, as if he had not prevented him, for what precedes. If the guardian knows the prodigal will divorce as soon as he marries him, he buys him a slave woman for concubinage, and her manumission is not executed, for it is an act of generosity akin to gift and waqf.
He is maintained from his property and clothed from his property in a fitting manner, and his guardian manages that. If the prodigal squanders his food and clothing, the guardian deals with him as with the minor and the insane: he hands him the allowance day by day. If he squanders it, he feeds him in his presence and merely covers him within a house, if he cannot be diverted by threat and the like; and when he goes out among the people, he dresses him in his clothes.
The management of his property and the bequest he makes of it are valid, for no harm comes to him in them: it is a pure benefit for him, for it is drawing near to Allah with his property, once he has been made self-sufficient by it. His manumission, his gift and his waqf are not valid, for it is an act of generosity for which he is not qualified; but if the waqf is suspended upon his death, it is apparently valid, for it is a bequest.
The prodigal has the right to demand qisas, for he is qualified in what does not touch money as to its purpose; he may waive qisas for money; his waiver of qisas without money is not valid according to one of the two views, and valid according to the other. His attribution of paternity of the slave woman he owns is valid, and the slave mother of his child (umm walad) is freed at his death.
If the prodigal confesses to the punishment of adultery, drinking or slander, or divorces his wife or separates from her by khul' for money, the confession, the divorce and the khul' are valid, for their purpose does not touch money. The judgment arising from them is binding upon him immediately, for he is not suspect regarding himself, and the interdiction concerns only his money. If he receives the compensation of the khul' or the divorce, his receipt is not valid, for it is a financial disposition: if he destroys it or it perishes in his hand, the prodigal does not guarantee it, and the woman is not absolved by handing him the compensation of the khul' or the divorce, as with the minor, for he lacks the capacity to receive. His zihar, his ila, his li'an and the denial of paternity by imprecation are valid.
If he confesses to something that brings qisas upon a life or a limb, and the beneficiary of the confession demands its execution, the latter may obtain it immediately; if the beneficiary pardons for money, the pardon is valid, and the correct view is that the money for which he pardoned is not due immediately, for the prodigal and the beneficiary of the confession may have colluded in that; the money becomes due when the interdiction is lifted and the qisas has lapsed through the pardon. If he confesses to the lineage of a child or the like, his confession is valid and the rulings arising from it bind him, such as maintenance and others, such as housing and inheritance, like the maintenance of a wife or a servant.
He cannot distribute the zakat of his property himself: his guardian distributes it, as with his other financial dispositions. His partnership (sharika), his transfer of debt (hawala), a transfer of debt to him, his guarantee on behalf of another and his personal suretyship for a person are not valid, for they are financial dispositions that are therefore not valid from him, like sale and purchase.
From him, the vow of any bodily worship, such as hajj and the like, such as fasting or prayer, is valid, for he is not interdicted over his body; but not the vow of a monetary worship, such as charity or sacrifice, for it is a financial disposition that amounts to an expiation by fasting.
If he enters ihram for an obligatory hajj, his consecration is valid like his other acts of worship, and the expense is taken from his property and given to a trustworthy person who will cover his expenses on the journey until his return. If the hajj for which he entered ihram is voluntary and his travel expenses equal his residence expenses, or exceed them but he can earn the surplus during his journey, his guardian does not prevent him from completing the hajj, for it became obligatory upon undertaking it, and the expense is given to a trustworthy person, as mentioned for the obligatory hajj. Otherwise, if the travel expenses are greater and he cannot earn them, it belongs to his guardian to release him from the consecration of the voluntary hajj, because of the harm he would incur; the prodigal is then released by fasting, that is, ten days of fasting, like the blocked pilgrim when he is prevented.
If the prodigal owes the expiation of an oath, or another expiation, such as for killing or zihar, he expiates by fasting, for money would harm him; if he frees, feeds or clothes, it does not suffice, and his manumission and the like are not executed, for it is a financial disposition that is therefore not valid from him. If the interdiction is lifted before his expiation, he expiates by what the discerning person expiates with; but if it is lifted after the expiation, he does not repeat it, for he did what was obligatory upon him, like the one who prays with dry ablution (tayammum) and then finds water.
If he confesses to a debt of money, his confession is valid according to the madhhab, but what he confessed does not bind him during his interdiction: he is pursued after it, for he is legally responsible and confessed to what does not bind him immediately, so it binds him after the lifting of the interdiction, like the slave who confesses a debt, the pledgee who confesses over the pledge, and the bankrupt who confesses a debt. But if the guardian knows the validity of what the prodigal confessed, such as a debt from an offense or the like, its payment is due upon him.
According to one view: the prodigal, when he confesses to a debt of money, such as a loan, or to what entails it, such as an accidental, intentional or semi-intentional offense, the destruction of property, its usurpation or its theft, his confession is not accepted, for he is interdicted for its preservation: his confession to a debt of money is therefore not valid, like that of the minor and the insane; and because if we accepted his confession concerning his money, the meaning of the interdiction would vanish, for he would dispose of his money then confess to it, and the beneficiary of the confession would take it; and because he confessed to what he is barred from disposing of, like the confession of the pledgee over the pledge and the bankrupt over his money.
Ibn Qudama (may Allah have mercy on him) said: "It is possible that his confession is not valid and is not applied in the judgment immediately, and this is the madhhab of al-Shafi'i; for he is interdicted because of the absence of sound judgement: the ruling of his confession therefore does not bind him after the lifting of the interdiction, like the minor and the insane. The prevention of the immediate effect of his confession was established only to preserve his property and repel harm from him; if the confession took effect after the lifting of the interdiction, it would yield only the postponement of the harm until his worst state, and he would differ from the one interdicted for another's right: the impediment is indeed the attachment of another's right to his property, and it vanishes when the right over his property vanishes, so that the effect of his confession is established. But in our question, the judgment lapsed because of a defect in the confession: it therefore did not become established as a cause, and with the removal of the interdiction the cause was not completed: the judgment is not established while the cause is defective, as it was not established before the lifting of the interdiction. And because the interdiction for another's right did not prevent these persons from disposing of their liabilities: it is therefore possible for them to validate their confession within their liabilities in a way that does not harm others, namely that it binds them after the disappearance of another's right. But the interdiction here aims at his own preservation, because of the weakness of his intellect and his mismanagement, and the harm is repelled only by the absolute invalidation of his confession, as with the minor and the insane."
As for the validity of his confession in what is between him and Allah: if the validity of what he confessed is known, such as a debt from an offense that binds him, or a debt that bound him before the interdiction, its payment is due upon him, for he knew that a right weighed upon him, so its payment is due, as if he had not confessed to it; and if the invalidity of his confession is known, such as when it is known that he confessed a debt while no debt weighs upon him, or an offense that did not occur, or that he confessed to what does not bind him, for example if he destroyed the property of someone who had entrusted it to him as a loan or a sale without the payment being due upon him, for he knows that no debt weighs upon him: nothing is due upon him, as if he had not confessed to it.
When the prodigal's guardian authorizes him to sell and buy, is it valid from him? Two views. The first: it is valid, for it is a contract of exchange, and his ownership by permission is like marriage; and because he is sane yet interdicted, his disposition therefore becomes valid by permission, like the minor. This view establishes that the interdiction of the minor is stronger than his, since the minor's disposition becomes valid by permission: a fortiori here; and because if we prevented his disposition by permission, we would have no way of knowing his sound judgement and testing him. The other: it is not valid, for the interdiction is decreed against him for his squandering and mismanagement; when he is authorized, what brings no benefit is therefore authorized, and that is not valid, as if the sale of what is worth ten for five were authorized.
The status of the disposition of the prodigal's guardian is that of the disposition of the guardian of the minor and the insane, for his guardianship over the prodigal seeks the latter's interest, like the guardian of the minor (al-Mughni 4/171-172, al-Insaf 5/334-338, Kashshaf al-Qina 3/528-530, Sharh Muntaha al-Iradat 3/487-489, Matalib Uli al-Nuha 3/415-417).
Chapter on the one in charge of the minor, the insane and the prodigal, and what it is permitted for them to do and what is not permitted. The jurists of the four schools agree that the guardian of the minor, the insane and the interdicted prodigal is the father; they then differ over the one in charge after the father, with a detail specific to each school, as well as over what the guardian is permitted to do with the interdicted person's property, according to the following detail.
The Hanafis said: the guardian of the minor in this matter is, first, his father; second, the executor whom his father chose and appointed during his lifetime, if the father dies; third, the executor whom that chosen executor appointed during his lifetime, if he dies; fourth, his true grandfather, however high, that is, the father of the minor's father, or the father of the father's father; fifth, the executor whom this grandfather chose and appointed during his lifetime; sixth, the executor whom this executor appointed; seventh, the ruler (wali): by ruler is meant the one to whom the appointment of judges belongs, unlike the chief of police, for the appointment of judges does not belong to him; eighth, the judge, or the executor whom the judge appointed.
The essence is that there is no guardianship of the grandfather so long as the father's executor exists, nor guardianship of the ruler or the judge so long as the grandfather or his executor exists; after that there is no order: it is valid for the guardian to be the ruler, the judge or the executor whom the judge appoints, and whichever of them acts, his disposition is valid. As for relatives, such as brothers, uncles and others, their permission is not admitted if they are not executors.
As for the agnates other than ascendants, they have no guardianship over property: the mother therefore has no guardianship in matters of property. If the mother appoints a guardian by testament for her minor child before dying, and then dies, that guardian has no right to dispose of the mother's estate so long as the father, his executor, his executor's executor, the grandfather or his executor exists, in any situation; however, if none of the mentioned guardians exists, the mother's executor has the right to preserve the mother's estate and to sell the movable goods, for their sale is their preservation. No disposition is valid over any part of the minor's property beyond that, whether he inherited it from his mother or otherwise. Likewise, none of the other agnates, such as the uncle and the brother in matters of property, has guardianship over the minor: the brother, the uncle and others therefore have no right to dispose of the minor's property so long as one of the mentioned guardians in the cited order exists, for they have no right to dispose of his property in trade, and therefore they likewise have no power to authorize him in trade.
It is the first holders of guardianship who have the right to dispose of his property, and they therefore have the power to authorize him in trade. As for guardianship in marriage, it is established by four things: kinship, patronage (wala), the imamate and ownership. The order of guardians is as follows: the son, then the son's son however far down, then the father, then the grandfather, the father's father, however high, then the full brother, then the paternal brother, then the son of the full brother, then the son of the paternal brother however far down, then the full paternal uncle, then the paternal uncle, then the son of the full uncle, then the son of the paternal uncle however far down, then the father's full paternal uncle, then the father's paternal uncle, then their sons in this order; then the grandfather's paternal uncle through the father and through the mother, then the grandfather's paternal uncle through the father, then their sons in this order; then the most distant of the woman's agnates, namely the son of a distant uncle. All of these hold the guardianship of marriage according to the cited order, and they have the right to compel the girl and the boy into marriage during their childhood, not in adulthood. In the absence of the agnates, guardianship belongs to the blood relatives in the line of inheritance.
Marriage by non-agnates: it is permitted to relatives other than the agnates to give in marriage, in the absence of the agnates, whether men or women, such as the mother, the maternal uncle, the maternal aunt, the sister and every blood relative: all of them have the right to marry off the one who has not yet had nocturnal emissions, beginning with the mother, then the grandmother, then the full sister, then the paternal sister, then the uterine sister, then their children. If the agnates and the blood relatives do not exist, the judge marries her off.
The guardianship of the father and the grandfather over the minor, over his person and his property, is established and disappears only through the establishment of the boy's sound judgement (rushd) after puberty; if the boy reaches puberty and then turns out to be insane or mentally deficient, the guardianship of the father and the grandfather continues without interruption (al-Mabsut 25/23, al-Jawhara al-Nira 4/295-300, Ibn Abidin's hashiya on al-Durr al-Mukhtar 6/174-175, al-Fatawa al-Hindiyya 4/392 and 5/110).
The Malikis said: the guardian who oversees the affairs of the interdicted person, whether a minor, a prodigal whose prodigality did not appear after his sound judgement, or an insane person, is the father of sound judgement, not the grandfather, the brother or the uncle, except by the father's instruction: any relative other than the father has no charge over the interdicted person, except by delegation from the father or the ruler. As for the one upon whom prodigality appeared after his sound judgement, his guardian is the ruler; likewise the insane, that is, his status is that of the prodigal if insanity appeared upon him after sound judgement: his guardian is then the ruler, otherwise it is the father or his executor.
The father has the right to sell the property of his interdicted child in general, property yielding revenue or otherwise, and his disposition is presumed to seek the interest: it is therefore never questioned or challenged, for he is among those over whom suspicion cannot fall in his particular guardianship, even if he does not state the reason; because if the disposition is presumed to seek the interest, he has no need to mention the reason for which it is made. This does not, however, exclude that a motivating cause must exist: it is indeed never permitted for the father to sell without a reason. Then, if the father does not exist, his executor follows him, and likewise his executor's executor, however distant, for he is like the authorized agent.
The executor does not sell his interdicted person's real estate except for a reason requiring the sale, with evidence (bayyina) against suspicion: the witnesses testify that he sold it only for such a thing; as for the mere verbal statement without evidence, it brings no great benefit, for there is no executor who wants to forfeit the orphan's revenue without verbally stating whatever reasons he pleases; and that is within everyone's reach, at no cost at all.
The executor has no right to gift any part of his interdicted person's property for the sake of reward, unlike the father; for the gift made for the sake of reward, if it escapes the recipient's hand, obliges only the repayment of its value; and the executor is like the ruler, who has no right to sell at its value except in necessity, unlike the father. Then the ruler succeeds the two, that is, the father and his executor, when they are absent: if he has neither father nor executor, the ruler is then the one who oversees his affairs, or he appoints someone to oversee him; the same applies to the one upon whom insanity or prodigality appeared after his sound judgement. Sound judgement exists only after puberty, for sound judgement is puberty accompanied by good management of affairs.
The ruler may sell the orphan's property under the following conditions:
Otherwise his ruling is annulled, for fear that it be said afterwards: what was sold is not what was witnessed as the orphan's property. As for the custodian, that is, the kafil who takes charge of the orphan, boy or girl, relative or stranger, such as a grandfather, a brother, an uncle or a mother: he has no right to dispose by sale or otherwise, and their act is annulled. It is permitted to validate the small portion of the custodian's dispositions and the like over the orphan's property, namely what the necessity of living depends on, such as food or clothing: what he sold is therefore not annulled and the disposer is not pursued; the apparent position is that this varies according to custom, with no fixed limit of ten dinars or more.
He sells only with conditions: knowledge of the custody, the minority of the child in his care, the need requiring the sale, the smallness of the item sold, the fact that it is what has the most right to be sold, and knowledge of the soundness of the price; an evidence valid in religious terms testifies to these conditions. If the buyer is sued over what the kafil sold, he must establish these conditions and that he spent the price for the child's benefit and brought it into his interests; if one of the conditions fails, the child, once grown, has the option to annul the sale or confirm it.
Many of the later scholars approved that the custom prevailing among people, such as the inhabitants of the countryside and villages, upon the death of one of them, of not making a will for their children while relying on a brother, a grandfather or an uncle known for his compassion toward them, equals the explicit mention of the delegation to them: the sale is then permitted to him, small or large, with its prior conditions; it is final and not annulled, and the child, once adult, has no objection. It is a useful and frequently occurring question, especially in these troubled times (Tahrir al-Mukhtasar 4/167-169, al-Sharh al-Kabir with al-Dasuqi's hashiya 4/486-489, Mawahib al-Jalil 6/490-496, al-Taj wa-l-Iklil 4/85-86, Sharh Mukhtasar Khalil 5/297-299, al-Sharh al-Saghir 7/361-365).
The Shafi'is said: the guardian of the minor is his father by consensus, if he is trustworthy, and the ruler has no right to prevent him from it; then his grandfather, the father's father, however high, like the guardianship of marriage; their apparent uprightness suffices because of the abundance of their compassion: if they are corrupt, the judge removes the property from them. Are they removed from guardianship by corruption? Two views: the judge removes the property from them, and if they return to uprightness, their guardianship and trust return according to the soundest view.
Their Islam is not taken into account, unless the child is Muslim: the disbeliever has charge of his disbelieving child; but if they bring the matter before us, we do not confirm them, and we take charge of their affair ourselves, unlike the guardianship of marriage: for the purpose of the guardianship of property is trust, which is stronger among Muslims, while the purpose of the guardianship of marriage is alliance, which is stronger in the disbeliever. Then their executor, that is, the executor of whichever of the two died last, for he stands in his place; his condition is uprightness. Then the judge or his agent, according to the saying of the Prophet (peace be upon him).
"The sultan is the guardian of the one who has no guardian."Authentic hadith, reported by Abu Dawud (2083), al-Tirmidhi (1102), Ibn Majah (1879) and Ahmad (6/66)
If the orphan is in one land and his property in another, the guardian is the judge of the land of the property, for his guardianship is tied to his property, like the property of absentees; but his role in disposition is preservation and care according to what the situation requires, with the opportune advantage (ghibta) when the property is threatened with loss. As for disposing of it by trade and investment, the guardianship belongs to the judge of the land of the orphan, for he is his guardian of marriage: the same applies to the property. On this basis, the judge of his land, just and trustworthy, may ask the judge of the land of his property to have it brought to him when the road is safe, because of the evident benefit he finds in it: that he trade with it or buy with it a property for him; and the judge of the land of the property is obliged to assist him in that. The status of the insane is that of the minor in the order of guardians, as is that of the one who reached puberty in a state of prodigality.
If none of the mentioned guardians exists, it falls upon the Muslims to oversee the condition of their interdicted persons and to ensure the preservation of their property. The mother has no charge according to the soundest view, like the guardianship of marriage; according to another view, she follows the father and the grandfather and comes before their executor, because of her perfect compassion. Likewise, the other agnates, such as the brother and the uncle, have no guardianship; they do, however, have the right to spend from the child's property on his upbringing and education, even without guardianship over him, for it is little and has therefore been tolerated; the same applies to the insane and the prodigal.
The guardian's disposal within his interdicted person's property: it falls upon the guardian to dispose for him in the interest.
"And do not approach the property of the orphan, except in the way that is best, until he reaches maturity."
Surah al-An'am, 152
"And if you mingle with them, they are your brothers. And Allah knows the one who corrupts from the one who reforms."
Surah al-Baqara, 220
He clothes him in a garment that befits him, in his hardship as in his ease, and pays the fee of his Quran teacher through whom he learns the obligations of prayer, even if he taught him the whole Quran or a single letter; as for the fee, two views: the sounder of the two is that it be taken from the minor's property, because of the benefit he finds in it, like the fee of the barber, the cupper and the physician. If he tears his clothes, he is threatened; if he does not restrain himself, he is limited to a waistcloth within the house, and when he goes out, he is dressed and assigned a supervisor. The disposition in which there is neither good nor harm is forbidden to him, for it brings no benefit.
It falls upon the guardian to preserve the minor's property from causes of loss, and to make it productive to the extent that supplies consume in expense and the like, if possible, without excess. If the guardian fears that an oppressor will seize the orphan's property, he is permitted to sacrifice part of it to save it, by obligation; the example cited for him is the scuttling of the ship by al-Khidr.
If the minor or the prodigal has earnings that suit him, the guardian compels him to work so that his condition improves. It is recommended to buy him real estate, and this is even preferable to trade if its revenue provides sufficiency, unless one fears the injustice of a ruler or the like, or the ruin of the property, or that he feels the weight of its kharaj; if the revenue does not provide sufficiency, trade is preferable, when possible. The one from whom the real estate is bought must be trustworthy, lest he sell what he does not own; the same applies to other goods whose end is feared. He does not buy him a precious property whose revenue does not match its price, such as a great residence the minor does not need and for which no tenant is found.
He may travel with the minor's and the insane person's property in times of safety and trade with it, with a trustworthy person, even without necessity such as fire or plunder, for the benefit may require it; not by sea, even if safety prevails, for it is a likely place of insecurity. He builds him dwellings and houses of earth and fired brick, that is, kiln-fired brick, for earth is cheap and is still useful after demolition, while fired brick lasts; not with sun-dried bricks, that is, unfired brick, nor with plaster, that is, gypsum, for sun-dried brick does not last and breaks upon demolition, and gypsum is costly and loses its usefulness upon demolition, rather it sticks to the brick and spoils it. This applies to lands where stone is scarce; if in a land stone is found, it is preferable to fired brick, for it lasts longer and costs less. The insane and the prodigal hold the same status as the minor in what has been mentioned. What has been cited of the restriction of building to earth and fired brick is a text of al-Shafi'i followed by the majority; many of the companions held the permission to build according to the custom of the land, whatever it may be: al-Ruyani held it, and al-Shashi and al-Shirbini approved it, saying that the inclination tends toward it.
He does not buy him what spoils quickly, even if profitable. He does not sell his real estate, for real estate is the safest and most beneficial of what is not so, except in case of need, such as food and clothing, when the property's revenue no longer suffices and he finds no one to lend to him, or he sees no benefit in borrowing, or he fears its ruin. Likewise, if the orphan is in one land and his real estate in another, and he needs an expense to send someone to collect the revenue, he sells it and buys in the orphan's land, or builds its equivalent there. Like real estate, so too the vessels of tableware of copper and the like: what is not of that kind is also not sold except for an advantage or a need; but a small need and a small, suitable profit are permitted, unlike the first two. The sale of trading goods is permitted without any restriction, to the point that if he sees selling below capital in order to buy with the price what promises profit, that is permitted.
If his property is demanded at more than its like-price, its sale becomes obligatory, if he does not need it and it is not real estate providing sufficiency. If the guardian neglects to build up his interdicted person's real estate until it falls into ruin, though capable of it, he is sinful; does he guarantee it? Two views, both oriented toward the absence of guarantee. If he abstains from selling in expectation of a rise and the property is lost, no guarantee is due.
It is not permitted for a guardian other than the judge to lend anything from the minor's and the insane person's property, except out of necessity, such as a fire, a plunder, or a journey feared for him; as for the judge, that is permitted to him in general because of his many duties. He lends only to a solvent trustworthy person, and takes a pledge if he sees benefit in it, otherwise he abstains; and he entrusts the property to a depositary only if he cannot lend it.
He may sell his property on credit for the interest he sees in it, such as when there is profit in cash and a suitable increase on credit, or when he fears plunder or raid for it; when he sells on credit, he makes the sale witnessed by obligation and takes a pledge, that is, the price be pledged in full. The buyer must be solvent and trustworthy, and the term short according to custom, as a precaution for the interdicted person: otherwise he guarantees it and the sale is void according to the soundest view, and a surety does not replace the pledge. It is not, however, incumbent upon the father and the grandfather to stand as sureties themselves; the debt weighs upon them if they sold his property to themselves on credit, for they are trusted regarding his right; and the judge validates the sale they made of their child's property when they bring it before him, even without establishing that their sale took place in the interest, for they are not suspect regarding their child.