Islamic Fiqh > Judgment and testimony > Guardianship of the incapable: minors, spendthrifts and the insane > The guardian's fee
Contents
Updated on 26 September 2026 at 7:12 PM
This part belongs to the full section: All sections of this part.
The executor does not sell the child's or the insane person's property to himself, nor his own property to the child or the insane; and no guardian, not even the father, executes qisas for them, nor waives qisas; he is, however, permitted to waive the arsh regarding the poor insane person, unlike the minor, for childhood has an end that can be awaited, unlike insanity.
"Divorce belongs only to the one who takes hold of the leg."
He therefore does not spend his money on races, and buys only from a trustworthy person. He exercises the right of preemption in his favor, or abandons it according to the interest he sees in it, for he is commanded to act upon it: taking it is therefore obligatory if the interest lies in it, forbidden if the interest lies in abandoning it; and if the interest is equal between taking and abandoning, is taking forbidden, obligatory or left to choice? Three views. He pays its zakat by obligation, for he stands in its place. He maintains him in a fitting manner in food, clothing and other necessities, according to what suits him in hardship and in ease; if he is stingy he is sinful, and if he is extravagant he is sinful and guarantees it, and he pays the arsh of the offense even if it is not demanded of him. He also spends for the [interdicted person's] relative, for this charge lapses with the passage of time.
The guardian's fee: neither fee nor allowance for the guardian from his interdicted person's property; if he is poor and his interdicted person has occupied him to the point of preventing him from earning his living, he takes the lesser between fee and allowance, in a fitting manner, according to Allah's word:
"Let the one who has sufficiency abstain from it, and let the one who is poor take according to custom, in a fitting manner."
Surah al-Nisa, 6
Food is mentioned only because it is the most general of the forms of benefit, and every other use falls under it. The guardian may take directly, without resorting to the ruler. If the fee of the father, the grandfather or the mother, when she is an executrix, falls short of the interdicted person's upkeep, each of them being poor, the difference is completed from the interdicted person's property, for an obligation established without work, a fortiori here. If he took because of poverty and then found ease, the restitution of the amount is not due upon him according to the more apparent view. All of this concerns the guardian other than the ruler; as for the ruler, he has no such right, for his guardianship is not exclusive to the interdicted person, unlike the others, down to his agent.
The guardian may mix his property with the minor's and share his table if the minor has his share in it, according to Allah's word: "And if you mingle with them, they are your brothers" (Surah al-Baqara, 220); otherwise it is forbidden, according to His word: "And do not approach the property of the orphan, except in the way that is best" (Surah al-An'am, 152). The mixing of the travelers' provisions is a sunna, even if they differ in their consumption, according to authentic reports related on this. The guardian is not obliged to buy clothes for the one entrusted to him before being self-sufficient in that purchase for himself: if he is not self-sufficient, he gives himself precedence. If the father, however high, is in hardship, he may bring the matter to the judge so that he appoint an administrator with a fee taken from the interdicted person's property, or appoint someone else himself with that fee.
If the minor, after puberty, brings an action against the father and the grandfather for a sale of his property, even real estate, without benefit, he is confirmed by oath, for neither of them is suspect, because of the abundance of their compassion; likewise the mother when she is an executrix, and the one holding her rank, such as her female ancestors. If he brings it against the executor or the agent, that is, the judge's delegate, the latter is confirmed by his oath because of the suspicion resting upon them. It is said: the guardian is confirmed in all cases, for the principle is the absence of betrayal; it is said: he is never confirmed, but evidence is required; it is said: the father and the grandfather are confirmed in all cases, and the others outside real estate, for real estate requires a precaution not taken for what is not so.
And if we say that the word of the executor and the agent is not accepted, that concerns what is not trading merchandise; as for merchandise, the apparent position is that their word is accepted, for witnessing it is difficult; and the guardian's claim against the buyer is like his claim against the guardian: his word against the latter is accepted if he bought from someone other than the father and the grandfather, not if he bought from them. If the one whose word is not accepted, among the guardians and the interdicted, produces evidence for what he claims, judgment is rendered in his favor, even if it be after the oath (Rawdat al-Talibin 3/389-390, Mughni al-Muhtaj 3/121-126, Nihayat al-Muhtaj 4/428-438, al-Najm al-Wahhaj 4/421-431, al-Dibaj 2/244-249).
The Hanbalis said: oversight of the minor's and the insane person's property, while they are under interdiction, belongs only to the father, or his executor after him, or the ruler in their absence. Guardianship over the minor and the insane, boy or girl, is therefore established for the father, for it is a guardianship in which the father is given precedence, like the guardianship of marriage and because of his perfect compassion. The father must be of sound judgement, sane, free and upright, even apparently, for entrusting guardianship to one lacking these qualities would be a squandering of the property; and because the one who is not of sound judgement, free and sane may himself need a guardian, he therefore cannot be guardian over another. If the father is a disbeliever, he has guardianship over his disbelieving child, by equality between them; guardianship is moreover established for a disbeliever, on condition that he be upright in his religion, performing what he considers obligatory, avoiding what he considers forbidden, and observing magnanimity.
Then guardianship over a minor and an insane person is established, after the father, for his upright executor, even if he exercises the guardianship for a fee while a volunteer for the guardianship exists; for he is the father's substitute, like his agent during his lifetime. Then, if there is neither father nor executor, or the father exists but lacks something of the required qualities, guardianship is established for both in favor of a ruler possessing the same required qualities, for the guardianship has lapsed on the father's side and therefore passes to the ruler, who is the guardian of the one who has no guardian.
Ibn Muflih, al-Buhuti and al-Ruhaybani (may Allah have mercy on them) said: Imam Ahmad was asked about someone who holds property that the heirs demand of him and who fears for his situation: do you see that he inform the ruler and bring the matter to him? He said: "As for our governors of today, I do not see that one address any of them nor hand anything over to them", and that referred to his time. What then of our governors today! Al-Ruhaybani said: the preference goes in that direction, and what the Imam said is the undeniable truth; the companions' words refer to a qualified ruler if one exists, which is rarer than red sulfur.
If the father appointed no one possessing the required qualities, or the father exists without possessing the required qualities, the ruler appoints a trustworthy agent to oversee the orphan and the insane, the guardianship having passed to him. If there is no ruler with the required qualities, a trustworthy agent who cares for the orphan is required. Al-Athram asked Imam Ahmad about a man who died leaving minor heirs, what should be done? He said: "If they have no executor and they have a compassionate mother, the charge is given to her."
The grandfather has no guardianship, for he does not recommend himself but recommends the father: he is therefore like the brother. The mother and the rest of the agnates have no guardianship, for property is the place of betrayal, and all who come after the first mentioned are incapable and are not trusted with property. As for the prodigal, if he was interdicted as a child and the interdiction continued for his prodigality, his guardian is the one we mentioned; if the interdiction is renewed against him after puberty, oversight of his property belongs only to the ruler, for the interdiction requires the ruler's judgment: its removal therefore likewise, and likewise the oversight of his property.
It is not permitted for the guardian of the minor and the insane to dispose of their property except in view of their interest, according to Allah's word: "And do not approach the property of the orphan, except in the way that is best" (Surah al-An'am, 152), and the insane person falls under the same meaning. If he shows generosity through a gift or charity, or acts with partiality by buying above or selling below, or exceeds the fitting allowance toward them, or exceeds for those whose allowance is due upon him, such as a wife and the like, the fitting allowance: he guarantees it, for he is negligent, like his disposal of another's property. He guarantees the excess over the obligatory, not absolutely.
Their guardian may spend on them from their property without the ruler's permission, as he spends for a foundling without the ruler's permission, because of his guardianship. If a child or an insane person squanders his allowance, the guardian hands it to him day by day, to ward off waste. It is known that the one who does not squander it may have it paid in advance according to the usage of the people of his land; if the one in charge squanders it by destroying it, or hands it to another, the guardian feeds him while watching him, that is, while he watches him, otherwise he is negligent. If he squanders his clothing, he is covered within a house only, if it is not possible to divert him from it by keeping the garment on him, even by threat, reprimand and shouting; as soon as the guardian shows him to the people, he dresses him in his clothes, and when he returns to the house, his clothes are removed and he is merely covered. The insane person is chained with iron out of fear, and the same applies if he is feared.
It is not valid for the guardian to take a pledge from their property for himself, nor to buy anything from their property for himself, nor to sell them anything of his property, for that is the place of suspicion; except the father, for suspicion between a child and his parent is excluded: compassion for him, inclination toward him and giving up one's own share for his are part of parental nature; and it is in this that the executor and the ruler differ from him. It falls upon their guardian to extract the zakat of their property from their property, and to extract their zakat al-fitr from their property, likewise the zakat al-fitr of the one whose upkeep is due upon him.
The guardian's confession against them of a debt of money, of a destruction or the like is not valid, for it is a confession against another. As for his effective dispositions from him, such as sale, lease and the like, his confession concerning them is valid, like the agent. It is not valid for him to authorize them to keep their property, for the purpose is not attained. It is recommended to honor the orphan, to bring joy to him and to ward off humiliation from him: mending his heart counts among his greatest interests.
Their guardian may travel with their property for trade and otherwise, when a journey presents itself in safe places, for that is more profitable for them, and it is the custom of adults with their property. The guardian hands their property only to trustworthy depositaries, for they have no interest in its being handed to other than a trustworthy one. The guardian does not endanger their property by exposing it to what is doubtful between safety and insecurity, for lack of benefit for them. The guardian may trade their property by commenda (mudaraba) himself, without a fee in his analogous trading, and the entire profit belongs to the one in charge, for it is the growth of his property. Trading their property is preferable to leaving it. The guardian of the minor and the insane may hand their property in commenda to a trustworthy person who trades with it for a share of the profit, for Aisha (may Allah be pleased with her) placed the property of Muhammad ibn Abi Bakr (may Allah be pleased with him) in commenda; and because the guardian is the substitute of his interdicted person in everything profitable in it.
The guardian may place the property in commenda, that is, hand it to the one who trades with it, the entire profit belonging to the one in charge. The guardian may also sell it on credit to a solvent buyer, and lend it for an interest on their behalf, when the deferred price exceeds what is paid in cash, such as the need for a journey or fear for the property or the like: it is then permitted, even without pledge or surety for him and for them; having one or the other is preferable to abandonment, for it is the precaution. If the property is lost, that is, disappears, because of the abandonment of the pledge and the surety, the guardian does not guarantee it, for the apparent state is safety.
The meaning of the interest in lending the minor's and the insane person's property is that the minor or the insane has property in a land and the guardian wants to transfer it to another land: he then lends it to a man in that land so that he may claim its equivalent in his land, the guardian thereby seeking its preservation from the risk of transfer, or fearing its loss by plunder, drowning or the like; or the property is of what perishes with the length of time, or its recent state is better than its old state, like fresh wheat and the like: the guardian therefore lends it, fearing weevils or the fall of its value, and for similar reasons. If there is no interest in lending it, its lending is not permitted to his guardian, for it resembles generosity. If the guardian wants to deposit the minor's or the insane person's property, its lending to a trustworthy person is preferable to deposit, for it is better preserved for him; if he deposits it although its lending was possible, that is permitted to him, and no guarantee weighs upon the guardian if it is lost, for lack of negligence on his part.
In every place where we said: the guardian may lend it, seeing the interest in it: it is permitted to lend it only to a solvent trustworthy person, so as not to expose it to loss; likewise its sale on credit. The guardian does not lend it for affection and reward explicitly, for the one in charge has no interest in it; and neither the executor nor the ruler borrows anything of it for themselves, just as they do not buy from it for themselves nor sell to it, because of suspicion; the apparent position is that the father has that right, for lack of suspicion. The guardian may gift it for compensation equal to its value or more; without it, it is partiality according to what precedes. The guardian may pledge it with a trustworthy person for a need, and the father may pledge their property for himself; that is not permitted to another guardian.
Their guardian, that is, the guardian of the minor and the insane, whether the father or another, may buy for them real estate from their property so that it may be exploited, the capital remaining theirs. He may also build it for them according to the usage of the people of his land. If buying real estate is more profitable than building and possible, it must be preferred to building, for it is more profitable. The guardian may buy the sacrificial animal for an orphan possessing abundant property, from the orphan's property, for it is a day of joy and happiness, so that his heart may be mended, like the one who has a father; likewise fine clothes, with the recommendation of largeness on that day. The guardian's charity from any part of the sacrificial animal is unlawful.
When mixing the orphan's food with his guardian's is gentler for him and softens his life in bread, and obtaining the accompaniment of the meal is possible, that is preferable, in seeking gentleness, according to Allah's word: "And if you mingle with them, they are your brothers" (Surah al-Baqara, 220). If separating the orphan is gentler for him, the guardian separates him, respecting the interest.
The guardian may leave the orphan at school so that he learns what benefits him; he may also teach him writing, archery, manners and what benefits him; he may pay his fee from his property, for that is part of his interests, like the price of his food. He may apprentice him to a craft if it is a benefit; he may also treat him for a benefit, and carry him so that he attends the congregational prayer, for a fee covering both, that is, the treatment and the transport, without the ruler's permission, when the guardian sees benefit in it.
The guardian may sell the minor's and the insane person's real estate for an interest, even without an increase beyond the price of the like; and the types of interests are many: the need of the minor and the insane for upkeep, clothing, the payment of a debt due upon them, or a necessity they cannot meet for lack of means; fear for the real estate of loss by flooding, ruin or the like; the presence of an advantage (ghibta) in the sale of the real estate, namely that much increase beyond the price of the like be offered for it without limiting oneself to a third; the real estate being in a place from which no benefit is drawn, for it yields no revenue because of the ruin of its location for example, or its usefulness is small: he then sells it and buys him real estate in a place where usefulness is abundant; or the guardian sees a property to buy in which there is an advantage, and he can buy it only by selling his real estate. His house may be in a place where the boy suffers harm by residing there, because of bad neighborhood or otherwise: he sells it and buys him with its price a residence that suits him; and countless similar situations: what counts is that he sees an interest in it.
The essence is that it is sold only at the price of the like: if it is reduced, the sale is not valid; it is said: if the guardian sells below the value, the sale is valid according to the madhhab and he guarantees the deficit, like the agent.
The guardian may permit the little girl to play with non-figurative toys, that is, without a head, and he may buy them for her from her property explicitly, for there is no prohibition in that, but rather a benefit of training in what is asked of her; and buying them with his property is preferable, so as to preserve her property. Part of the covering of modesty has been mentioned. Her guardian may also prepare her for marriage if he marries her off, with what suits her of clothes, jewelry and bedding according to custom, for that is part of her interests.
If the guardian cannot deliver the right of the one who appointed him from a debt or an item except by bringing the matter to a governor who wrongs him, it is permitted to him to bring it, that is, the matter of the one upon whom the right rests, for he is the one who drew the injustice upon himself; as when the restitution of usurped property is possible only at an enormous cost: the owner may impose that cost upon the usurper, and the expense is borne by the usurper, for he is the one who caused it; it is therefore taken from him. Thus, if a man can obtain his right only by bringing the matter of the one who holds it to a governor who wrongs him, that is permitted to him.
It belongs to the guardian in need, other than the ruler and his agent, to consume from the property of the one entrusted to him less than the wage of his like, or what suffices for his subsistence, even without the ruler assessing it, and not to return the compensation if he finds ease; if he is rich, that is not permitted to him, provided he is not the father. If the ruler fixes a sum for the guardian, he may take it without charge, even if rich. He does not recite in the orphan's Quran if he risks damaging it. The overseer of a waqf consumes in a fitting manner explicitly, if the founder did not stipulate anything for him, even if not in need. The agent of charity consumes nothing of it in return for the work.
As soon as the interdiction ceases over the minor, the insane or the prodigal, and one of them brings an action against the guardian for exceeding bounds with his property, or claims what entails a guarantee, such as negligence, partiality, generosity or the like, without evidence: the guardian's word prevails, for he is a trusted depositary like the one who receives a deposit, up to the measure of the allowance due to him and the measure of clothing, or the measure of expense and clothing upon the interdicted person's property, whether movable goods and animals; likewise his word is accepted concerning the measure of allowance toward the one whose upkeep is due upon him, such as a wife or a relative, or the measure of expense upon his real estate if he spent on its construction in a fitting manner from the guardian's property so that it benefits the interdicted person; the apparent position is that his claim of a loan against him is not accepted, for it contradicts the apparent. His word stands so long as his lie is not established, that is, the guardian's, by the testimony of the senses contradicting his claim or by custom and usage contradicting it; once his lie is established, his word is no longer accepted, for it contradicts the apparent.
If, however, the executor says: "I spent on you for three years", and the orphan says: "My father died two years ago and you spent on me from the time of his death", the orphan's word is confirmed by oath, for the principle is to accord with him. A guardian's word is accepted also concerning the existence of a necessity, an advantage and an interest requiring the sale of the interdicted person's real estate; his word is also accepted concerning the loss of the interdicted person's property or part of it, for he is a trusted depositary. When we say that the guardian's word prevails, he may swear, just as the orphan's word may be accepted; the ruler, however, never swears, for lack of suspicion. The guardian's word is accepted also concerning the handing over of the property after his puberty, his sound judgement and his sanity, if the guardian was a volunteer, for he is a trusted depositary, like the depositary; but if he was not a volunteer, rather remunerated, his word is not accepted concerning the handing over of the property to the interdicted person, but the orphan's word is, for the guardian held the property for his own profit: his claim of restitution is therefore rejected, like that of the pledgee and the borrower (al-Mughni 4/304, al-Sharh al-Kabir 4/518-520, al-Mubdi 4/336-338, al-Insaf 5/323-326, Kashshaf al-Qina 3/520-533, Sharh Muntaha al-Iradat 3/480-491, Matalib Uli al-Nuha 3/406).
5 - The interdiction of the openly sinful: the jurists differed concerning the openly sinful who does not squander his property and preserves it, without neglecting it: is he interdicted or not? The Hanafis, the Malikis, the Shafi'is according to the soundest view, and the Hanbalis according to the madhhab, hold that the openly sinful who lies, withholds the zakat and neglects prayer while preserving his property is not interdicted, and his property is handed over to him; for the purpose of the interdiction is the preservation of property, and his property is preserved without interdiction: it is therefore not needed. This is why, if corruption (fisq) appears after his property has been handed to him, it is not removed from him. According to Allah's word:
"And if you perceive in them sound judgement, hand over to them their property."
Surah al-Nisa, 6
And a kind of sound judgement has been observed in him, namely the good condition of the property, which the text therefore covers. And because the interdiction is for corruption of property, not of religion: do you not see that the tribute-paying subject (dhimmi) is not interdicted, while disbelief is graver than sin? And because the early generations did not interdict the openly sinful; and because sin does not necessarily entail the destruction of property nor its absence, that is, there is no necessary implication between sin and the destruction of property. And because the Prophet (peace be upon him) applied the punishments without interdicting the one upon whom he had applied them, in his property; likewise Abu Bakr, Omar and Uthman (may Allah be pleased with them) applied them, without it being reported that they interdicted the one upon whom they had applied them. And because the restraint in money is natural, while the restraint in religion is legal, and the natural is stronger, as shown by the acceptance of the confession of the openly sinful profligate, for his restraint is natural, and the rejection of his testimony, for the restraint acting in it is legal: uprightness was therefore required in testimony, not in confession. On this basis, his property is handed to him even if he corrupts his religion, like the one who neglects prayer and withholds the zakat, and the like.
The Shafi'is in the opposite of the soundest view, which is the view of Ibn Surayj, and the Hanbalis in one view, which is that of Ibn Aqil, hold that the openly sinful is interdicted even if he manages his property well, according to Allah's word:
"...if he is slow-witted or weak, or unable to dictate himself, then let his guardian dictate with justice."
Surah al-Baqara, 282
Allah established therein guardianship over the prodigal, and this one is such; and because if corruption accompanied puberty, it would prevent the lifting of the interdiction: so if it appears after the lifting of the interdiction, it requires the reestablishment of the interdiction, like squandering.
The openly sinful is the one who commits a forbidden act that nullifies uprightness, whether a major sin or persistence in a minor sin; for the openly sinful is not of sound judgement; and because the corruption of his religion prevents trusting him with the preservation of his property, just as his testimony is rejected and guardianship over another is not established for him, even if no lie or squandering is known of him. As for the openly sinful who spends his money on disobediences, such as the purchase of wine and instruments of amusement, or who uses it to corrupt, he is not of sound judgement according to the majority of jurists and he is interdicted for having squandered his property and wasted it without benefit (al-Jawhara al-Nira 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, Mukhtasar al-Muzani 1/110, al-Hawi al-Kabir 6/357, al-Bayan 6/228-229, Rawdat al-Talibin 3/385, Mughni al-Muhtaj 3/116-117, Nihayat al-Muhtaj 4/419, al-Najm al-Wahhaj 4/412, al-Dibaj 2/240, al-Mughni 4/301-302, al-Mubdi 4/334, Matalib Uli al-Nuha 3/404).
Second cause: the causes entailing interdiction for the benefit of others. 1 - The interdiction of the indebted bankrupt (muflis). The bankrupt is the one who has no property and nothing with which to meet his need; among the jurists, he is the one whose debt exceeds his property and whose outgoings exceed his income; or it is the name given to the one upon whom debts weigh that his property cannot cover. He may have been so named because of what he ends up as, namely the absence of property after the payment of his debt, for his property is destined to be poured into his debt: he is thus as if nonexistent; he may have been so named because he is prevented from disposing of his property, except for a trivial thing.
The status of the interdiction of the bankrupt: the jurists differed concerning the interdiction of the bankrupt when debts weighing upon him exceed the property he holds: is he interdicted at the request of his creditors or not? Imam Abu Hanifa (may Allah have mercy on him) said: the indebted bankrupt is not interdicted because of the debt; not being interdicted, his disposition and his confession are therefore valid, for he is an adult of sound mind. And: when debts weigh upon a man and his creditors demand his detention and his interdiction, I do not interdict him; if he has property, the ruler does not dispose of it while the debtor lives. If he dies while debts established before the judge by evidence or by his confession weigh upon him, the judge sells all his goods, movable and immovable, pays his debts with them, and liability for what was sold rests upon the creditors, not upon the judge nor his agent; likewise, if the judge sells the estate for the legatee, liability rests upon the latter, not upon the judge; or if he sells for the minor, liability is placed upon the minor, and likewise upon the judge's agent.
But he detains him until he sells for his debt, in order to fulfill the creditors' right and repel his injustice; he sells the goods, then the real estate. If his debt is in dirhams and he possesses dirhams, the judge pays it without his order, and that by consensus, for the holder of the debt, if he finds the species of his right, has the right to take it without consent: payment by the judge is therefore preferable. If his debt is in dirhams and he possesses dinars, or the reverse, the judge sells them for his debt by legal preference (istihsan), for dirhams and dinars have been treated as one species in some rulings; analogy (qiyas) would have it that he not sell them, as with goods: that is why the creditor has no right to seize it by force.
The majority of jurists, namely the Malikis, the Shafi'is, the Hanbalis and the two companions of the Hanafis, Abu Yusuf and Muhammad, the fatwa following their view, hold that the bankrupt is interdicted when the creditors demand it and the debts have overwhelmed him; and that this is owed by the ruler, who has the right to prevent him from disposing so that he does not harm the creditors; and that he has the right to sell his goods if the bankrupt abstains from selling them, and to distribute them among his creditors in shares proportional to their debts, according to the hadith of Ka'b ibn Malik (may Allah be pleased with him) according to which the Prophet (peace be upon him) placed the property of Muadh ibn Jabal under interdiction and sold it for a debt weighing upon him.
"The Prophet (peace be upon him) placed the property of Muadh ibn Jabal under interdiction and sold it for a debt he had contracted."Weak hadith, reported by al-Tabarani in al-Awsat (1/146), al-Bayhaqi in al-Kubra (11041), al-Darqutni (523) and al-Hakim in al-Mustadrak (2/67)
Abu Sa'id al-Khudri (may Allah be pleased with him) reported that a man suffered a loss in the lifetime of the Messenger of Allah (peace be upon him) over fruits he had bought, and his debt multiplied. The Messenger of Allah (peace be upon him) said: "Give charity for him." The people gave charity for him, but it did not suffice to pay his debt. The Messenger of Allah (peace be upon him) then said to his creditors: "Take what you find, and you have right to nothing but that."Reported by Muslim (1556)
And in his (peace be upon him) authorization for them to take his property lies the prevention of its disposal (al-Jawhara al-Nira 3/258-269, al-Ikhtiyar 2/118-119, al-Lubab 1/448-452, Mukhtasar al-Wiqaya 2/411-412, al-Inaya 13/230-238, Tahrir al-Mukhtasar 4/121-134, al-Sharh al-Kabir with al-Dasuqi's hashiya 4/424-443, Mawahib al-Jalil 6/448-468, al-Taj wa-l-Iklil 4/37-63, Sharh Mukhtasar Khalil 5/263 ff., Bilghat al-Salik with al-Sharh al-Saghir 3/217-228, Rawdat al-Talibin 3/339 ff., al-Bayan 6/131 ff., Mughni al-Muhtaj 3/78-102, Nihayat al-Muhtaj 4/355 ff., al-Najm al-Wahhaj 4/353 ff., al-Dibaj 2/210 ff., al-Ifsah 1/420-422, al-Mughni 4/265 ff., Sharh Muntaha al-Iradat 3/439 ff., Kashshaf al-Qina 3/494 ff.).
Nevertheless, the majority of jurists who ruled the interdiction of the bankrupt differed over some details, among which: is he interdicted when his debt equals the property he holds, or not? Likewise: is it the ruler who interdicts him, or the creditors? Likewise: his detention if he is in hardship, and the portion left to him to meet his needs and those of his dependents? And the things that are sold for the debt? And other questions, which the encyclopedia expounds school by school in detail.
The two companions, Abu Yusuf and Muhammad, the fatwa following their view among the Hanafis, said: when the creditors of the bankrupt demand his interdiction, the judge interdicts him and prevents him from disposing, selling and confessing, so that he does not harm the creditors, that is, if he sells below the price of the like; at the price of the like, he is not prevented. He sells his property if he abstains from selling it: he sells for the debt first the goods, then the real estate, and leaves him a full set of garments on his body, the rest being sold. Likewise, if he owns a dwelling he can do without: it is sold, part of the price is paid toward the debt, and with the rest a dwelling is bought for him to sleep in; and it is all distributed among his creditors in shares proportional to their debts.
If he makes a confession during the interdiction, it binds him after the payment of the debt, for the right of the earlier creditors has attached to this money: he therefore cannot annul their right by a confession in favor of another, unlike the consumption of the property, for it is observable and without return; if he acquires property after the interdiction, his confession concerning it is effective, for their right has not attached to it.
The interdicted bankrupt is maintained from his property, likewise his wife, his minor children and his blood relatives who are owed his upkeep, for his essential need takes precedence over the creditors' right; and because it is a right established for another which the interdiction does not annul: this is why, if he married a woman at the price of an equivalent dower, that sets a precedent for the creditors.
If no property is known to the bankrupt and his creditors demand his detention, while he says: "I have no property", the ruler detains him for each debt he contracted, in replacement of property that came into his hand, such as the price of a sale or the price of a loan, and for each debt contracted by contract, such as a suretyship (kafala) or a dower paid in advance, not deferred: as for the deferred dower, the view of consensus is that he is not detained for it. As for the debt in replacement of property that came into his hand, his claim of insolvency is not confirmed, for we knew his wealth through that property: his claim of insolvency claims the disappearance of what is in his hand, which is a new event that therefore is not confirmed; likewise if he contracted it by contract, such as the dower paid in advance: his assertion in the claim of insolvency is not confirmed, for he may aim by his claim to void his obligation, which is not accepted. Any other case: his word is confirmed in his claim of insolvency, for the principle is poverty.
He is not detained for what is not of that kind, such as the compensation of usurped property and the arsh of offenses, if he says: "I am poor", for the principle is poverty, and the one claiming wealth claims a new event which is not accepted without evidence; unless his claimant establishes evidence that he owns property: he is then detained, for evidence is stronger than the claim of poverty.
The detainee for a debt does not go out for the month of Ramadan, nor for the two Eids, nor for Friday, nor for an obligatory prayer, nor for an obligatory hajj, nor to attend the funeral of one of his own, even if he offers a surety for his person. According to Muhammad: if a father or a child of his dies, he goes out only if no one can wash and shroud the deceased, and he then goes out. It is said: he goes out with a surety for the funerals of parents, grandparents, grandmothers and children; outside of them he does not go out, and the fatwa bears on that.
The place of detention: it is fitting to detain him in a harsh place where neither bed nor carpet is spread for him, and that no one enter upon him to keep him company; for detention was legislated only so that he grow weary and hasten to pay. If he falls ill and the illness exhausts him: if he has a servant, he does not go out, so that his weariness increase and he hasten to pay; he does not go out to be treated either, but is treated within the prison. If he has no servant and his death is feared, he goes out, for when death by hunger is feared for him, he is permitted to repel it with the property of another: how then would it be permitted for him to perish because of another's property? If he needs intercourse, there is no harm in his wife or his slave woman entering upon him and his possessing her where no one sees him. He is not prevented from receiving the visits of his family and his neighbors, for he needs them to deliberate with them over the payment of the debt; but they are not permitted to stay long with him.
The one who practices a craft is not permitted, in detention, to engage in his craft, so that he grow weary and hasten to pay. A man is detained for his wife's upkeep; a father is not detained for his child's debt; he is detained if he refuses to spend on him. The mukatab is not detained for the debt of the contract of manumission toward his master, for he does not thereby become unjust, and detention is the punishment of injustice. If the debtor is a minor and has a guardian, the latter may pay his debts; if the minor owns property, the judge detains his guardian if he refuses to pay his debts.
If the judge has detained him for two or three months, he inquires into his condition; if no property is revealed, he is released. If the ruler does not establish that he owns property, whether by evidence standing forth or by questioning his neighbors who know him, and nothing is found to release him: the statement of the evidence that he has no property before his detention is not accepted, for the evidence cannot observe his insolvency nor his solvency, since he may own hidden property that cannot be observed; he must therefore be imprisoned so that he grow weary of it. Likewise, if the evidence establishes that he has no property, he is released, for ease must be considered. The manner of testifying: that the witness, who is two in number, say: "He is a destitute bankrupt: we know of no property for him besides his garments." If no property appears after the lapse of the period, he is released, for he is entitled to the consideration of ease, and his detention beyond that would be an injustice.
No one stands, after his release from prison, between him and his creditors: they accompany him without preventing him from disposing or traveling, follow him wherever he goes, and do not confine him to one place; if he enters his house for a need, they do not follow him but await him outside. If the debt is owed by a woman to a man, she is not accompanied, because of seclusion with a foreign woman: rather a trustworthy woman is designated to accompany her. They take what exceeds his allowance and that of his dependents, and distribute it among themselves in shares.
If the detained debtor chooses detention and the creditor chooses accompaniment, the choice belongs to the creditor, for he is closest to attaining his aim, having chosen what is narrowest for the debtor; unless the judge knows that the accompaniment brings evident harm upon the debtor, by preventing him from entering his dwelling: he then detains him in order to repel the harm from him. When the ruler pronounces the bankruptcy between him and his creditors, for judgment by bankruptcy is valid: hardship is thus established, and he is entitled to a deferment until ease, unless they establish evidence that property has come to him (al-Jawhara al-Nira 3/258-269, al-Ikhtiyar 2/118-119, al-Lubab 1/448-452, Mukhtasar al-Wiqaya 2/411-412, al-Inaya 13/230-238).
The Malikis said: the one whom debt has overwhelmed as to his property is in three states. The first, before bankruptcy: he is prevented from disposing of his property without compensation, in what does not bind him, for what is not customary, such as gift, charity, manumission and the like; permitted are the rendering of service, the confession of a debt in favor of one who is not suspected, as well as sale and purchase. The second state is the general bankruptcy (taflis amm): it is the creditors' rising against him, and they have the right to imprison him and prevent him, including from sale, purchase, taking and giving. The third state is the specific bankruptcy (taflis khass): it is the seizure of his property by his creditors.
The general bankruptcy is the rising of the creditor of a debt whose term has arrived, or which is due from the outset, against a debtor whose property does not suffice to pay the debt, whether what he holds is less than the debt or equal to it; if he possesses more than the debt, he is not prevented from it, unless he shows generosity diminishing his property below the debt: he is then prevented, that is, the one whom debt has overwhelmed is prevented.
This creditor has more right over the bankrupt's property: if it is ransomed, he has no right to take it; the original does not pass through transformation, as wheat passes through milling: he therefore has no right to take it after the transformation.
The status of the ruler and the entry of others than the creditors with them: if the creditor distributes his property and swears that he has concealed nothing, or the creditors consent to it, he has no need of the ruler's judgment. If the creditor gives the holders of debts access to what is in his hand, and they sell it and share the price, and a remainder of their debts remains, and then this creditor contracts debts with other people: the earlier ones have no right to enter into the prices of what he took from the others, unless a surplus remains after the others' debt, in which case they share it. The same applies to the bankruptcy pronounced by the ruler: if they bring the matter to him, he pronounces the creditor's bankruptcy and distributes among them what is in his hand, then the latter contracts debts with others, the earlier ones have no right to join in.
Unless property comes to him from a source other than the origin of the others' property: they all share in it, as if he inherits property, or it is given to him, or charity is made for him, or otherwise, or an offense is inflicted upon him, or upon his guardian, in which case he takes the arsh of the offense.
The ruler's sale of his property takes place in his presence with an option period of three days; if the ruler sells without consultation, the bankrupt chooses to confirm the sale or annul it; the ruler does not guarantee the surplus present in the bankrupt's goods when he sells without consultation, for the surplus is not established, and liability binds only by an established thing. Unlike the heirs: the ruler does not distribute among them without requiring of them evidence testifying to their enumeration, the death of their testator and their ranks in relation to the deceased, for their number is known to the neighbors and the people of the land: there is thus no cost in establishing it upon them. A deferment is granted him by obligation: the essence is that when the deceased is known for his debts, the ruler does not hasten the distribution of his property among the creditors, but grants a deferment by obligation to the extent he sees fit, because of the possible appearance of another creditor, so that the creditors gather together.