Islamic Fiqh > Judgment and testimony > Guardianship of the incapable: minors, spendthrifts and the insane > What is not required of the insolvent
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Updated on 26 September 2026 at 7:12 PM
This part belongs to the full section: All sections of this part.
What the bankrupt is not required to do: first, he is not required to earn a living in order to pour that into his debt, even if the creditors contracted with him on the earning of a living and set that condition in case of bankruptcy: that condition is not applied, whether he be craftsman or merchant; according to the view of some: he is compelled to it if he is a craftsman. Second, he is not required to borrow, for it is another debt; and it is not incumbent upon him to accept a gift, a charity or a bequest. Third, it is not incumbent upon him to exercise the right of preemption, even if there were surplus for him, for it is the initiation of an acquisition that does not bind; it is another transaction. If the bankrupt dies leaving a right of preemption, it belongs to the heirs, not to the creditors. Fourth, it is not incumbent upon him to waive qisas in order to take the diyia. Fifth, it is not incumbent upon him to take back what he gave as a gift to his child (Tahrir al-Mukhtasar 4/121-134, al-Sharh al-Kabir with al-Dasuqi's hashiya 4/424-443, al-Tabsira 10/5543 ff., 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).
The Shafi'is said: the one upon whom due and binding debts weigh, exceeding his property, is interdicted by obligation in his property at the creditors' request, even through their agents, such as their guardians, for the interdiction is their right; the interdiction against Muadh (may Allah be pleased with him) had taken place at the creditors' request. There is no interdiction for a debt owed to Allah, even if immediate, nor for a non-binding debt, such as vows of a number of writs, for the debtor can void them. There is no interdiction for a deferred debt, for it is not claimed immediately. Only the ruler interdicts the bankrupt, for that requires reflection and effort. As for the origin of the interdiction, it is because the creditors find benefit in it: one of them may obtain payment alone, to the harm of the others, or he may dispose of it and all their right be lost. It falls upon the ruler to interdict when its conditions are met, that is, whether at the request of the creditors or of the bankrupt.
By his property is meant his actual property from which payment is possible: what payment is not possible from, such as usurped or absent property, is not taken into account. As for benefits, if he is able to obtain their fee, they are taken into account, otherwise not. As for the debt, if it is due upon a solvent confessor, or evidence weighs upon him, it is taken into account, otherwise not. When he is interdicted for a due debt, the deferred debt does not lapse according to the more apparent view, for the term is intended by him and will therefore not escape him; in the opposite of the more apparent view: it lapses, for the interdiction makes the debt attach to the property, the term therefore falls, as at death. If the debtor becomes insane, his debt does not lapse. It lapses only by death, apostasy following [life], or the enslavement of a belligerent.
If the debts equaled the property: if he earns a living and spends from his earnings, there is no interdiction, for lack of need; rather the ruler obliges him to pay the debts, and if he refuses, he sells against him or compels him. If he does not earn a living and his upkeep comes from his property: there is likewise no interdiction according to the soundest view, for they can demand it immediately; according to the other view: he is interdicted, so that his property not be lost in expenses.
Interdiction is not imposed without the creditors' request, even through their agents, for it is for their interest, and they themselves watch over themselves. If the debt belongs to an interdicted person and his guardian does not request it, the interdiction belongs to the ruler without request, for he watches over his interest. Interdiction is not imposed for the debt of an absentee, for the ruler has no right to collect the absentees' property from liabilities: only the preservation of the substances of their property belongs to him; and that when the debtor is solvent and trustworthy, otherwise it falls upon the ruler to seize him absolutely.
If a portion of the creditors demands the interdiction and their debt reaches the threshold of interdiction by exceeding his property, he is interdicted, for the condition of the interdiction exists; and the effect of the interdiction is not reserved to the claimant, but general to the creditors. According to the other view: the debt not having exceeded his property, there is no interdiction, for his debt can be paid in full: there is therefore no need to request the interdiction. It is said: what is taken into account is that the debt of all the creditors exceeds his property, not only that of the claimant.
Interdiction is imposed at the bankrupt's own request, even through his agent according to the soundest view, for he finds a manifest purpose in it: pouring his property into his debts; it is reported that the interdiction against Muadh (may Allah be pleased with him) took place at his own request. Its form is that the debt be established by the creditors' claim with evidence, or by confession, or by the judge's knowledge, and that the debtor request the interdiction without the creditors; otherwise he has no right to request it. In the opposite of the soundest view: he is not interdicted, for it is a right belonging to them, and the interdiction contradicts freedom and sound judgement; the interdiction took place at the creditors' request only by necessity, for they cannot attain their aim without interdiction, for fear of loss; unlike him, whose aim is payment and who can attain it by selling his goods and distributing them among his creditors.
When he is interdicted, with or without request, the creditors' right attaches to his property, like the pledge, whether a specific item, a debt or a benefit, so that his disposal of it is not effective in what harms them, and new debts do not compete with them in it. Allah's right, such as zakat, vow and expiation, is set aside in favor of the creditors' right, and therefore does not attach to the bankrupt's property.
The ruler proclaims his interdiction by recommendation, it is said: by obligation, and proclaims it by cry so that people beware of his transactions: he orders a crier to announce in the land that the ruler has interdicted so-and-so son of so-and-so. If he carries out a consumptive financial disposition during his lifetime, such as selling, buying for cash, giving, freeing, leasing, establishing a waqf or contracting the mukataba: according to one view, his disposition is suspended; if something of it remains after the debt, through a rise in value or the release of the creditors or of some of them, it is effective, that is, it appears that it was valid; otherwise, if nothing remains, it is annulled, that is, it appears that it was annulled. The more apparent view is its immediate nullity, because of the attachment of their right to it, like the pledged property; and because he is interdicted by the ruler's judgment: his consumptive disposition is therefore not valid by nullifying the purpose of the interdiction, like the prodigal.
If he sold all his property or part of it to his creditor against his debt, or to the creditors against their debts, without the judge's authorization, the sale is void according to the soundest view, for the interdiction is established in generality, and he may have another creditor. According to the other view: it is valid, for the principle is the absence of other creditors, by analogy with the sale of the pledged property by the pledgee. If he sold it for part of their debt or against a specific item, it is like the sale of a third party's property, for it does not imply the lifting of the interdiction with respect to him, unlike the sale against the whole debt, in which case it falls away. If he sells it to a third party with the creditors' authorization, that is not valid according to the soundest view.
The financial disposition excludes the disposition within liability: if he disposes within his liability, such as selling by salam food or otherwise, or buying something at a deferred price, or selling on credit without the term salam, or borrowing, or leasing: the authentic position is its validity, and the thing sold, the price and the like are established within his liability, for there is no harm to the creditors in it. According to the other view: it is not valid, like the prodigal.
His marriage, his divorce, his khul', his return, his obtaining of qisas and its waiver, even for free, are valid, for no money attaches to these things; his attribution of paternity and his denial by imprecation are valid.
If he confesses to a specific item or a debt that became due before the interdiction through a transaction or a destruction or otherwise: the more apparent view is that his confession is accepted with regard to the creditors, as if it had been established by evidence, like the sick man's confession to a debt competing with the creditors of his period of health, and because of the absence of manifest suspicion; on this basis, if the creditors demand that he swear over it, he does not swear according to the soundest view, for if he refused, his refusal would avail nothing, for his retraction is not accepted according to the authentic position. In the opposite of the more apparent view: his confession is not accepted with regard to them, so that their competition not harm them; and because he may show favoritism toward the beneficiary of the confession.
Al-Ruyani (may Allah have mercy on him) said: the choice of our time is that the fatwa [rejects his confession], for we see bankrupts confessing to the oppressors so that they prevent the holders of rights from demanding and imprisoning them. Al-Shirbini said: and that was in his time: what then of our time!
If the obligation of a debt is attributed to the period after the interdiction, whether by a report restricted to a transaction, or by an absolute report, without restricting it to a transaction or otherwise, it is not accepted with regard to them and does not compete with them: it is rather claimed after the lifting of the interdiction; in the first case because of the failing of the one who dealt with him, and in the second because of the lowering of the confession to the lowest rank, which is the transaction debt. If he speaks of an offense occurring after the interdiction, it is accepted according to the madhhab, and the victim thus competes with them, for lack of failing on his part; according to the other view, it is as if he had spoken of a transaction.
He has the right to annul by defect or by revocation what he bought before the interdiction, if there is advantage in the restitution. The form of the advantage with respect to him is that the owner sells to the bankrupt while ignorant of his bankruptcy, and the share he takes in commenda exceeds its value; as for the one who knew, no advantage is conceivable in it, for the creditors suffer no harm from his competition. If the advantage lies in retention, there is no restitution for him, because of the loss of money without purpose.
The soundest view: the interdiction extends to what occurs after it through hunting, gift, bequest and purchase on credit, if we validate it, that is, the purchase; and it is the predominant opinion, for the purpose of the interdiction is the reaching of rights to their holders, which is not limited to what exists. According to the other view: it does not extend to what has been mentioned, just as the pledgee's interdiction over himself, concerning the pledged property, does not extend beyond it.
The soundest view: the buyer, that is, the one who bought from the bankrupt, has no right, within liability, to annul and attach to the substance of the merchandise if he knew of the state of bankruptcy, because of his failing; if he was ignorant of it, he has that right, for lack of failing, for bankruptcy is like a defect, and one distinguishes therein between knowledge and ignorance. The second view: he has that right, for it is impossible to reach the substance of the price. The third: he is never given that right, for he is in failing even in ignorance, by lack of investigation; and attachment being possible, he competes with the creditors with his price. The soundest view: when attachment to the substance of the merchandise is not possible, he does not compete with the creditors by the price, for it is a debt that arose after the interdiction with the consent of its holder: he therefore does not compete with the earlier creditors; if something remains after their debt, he takes it, otherwise he awaits ease. According to the other view: he competes with it, for it is in return for a new ownership by which he recovers his money.
The first duty regained is acquisition through his earnings, according to the saying of the Prophet (peace be upon him) in the report of Muadh: "You have right to nothing but that." Second: the waiver of the qisas due to him for an offense committed against him or against another, such as his slave, in return for the arsh, for it is in the sense of earnings. However, if the debt became due through a disobedience, such as the deliberate destruction of another's property, earning a living is incumbent upon him, for repentance from that is obligatory, and it is suspended, regarding the rights of men, upon restitution.
The debtor's claim of insolvency: when the debtor claims that he is in hardship, or distributes his property among his creditors claiming he owns nothing else, and they deny his claim: if the debt is owed to him by a transaction involving money, such as a purchase or a loan, he must bring evidence of his insolvency in the first form, and that he owns nothing else in the second, for the principle is that what the transaction fell upon persists. Otherwise, if the debt is owed to him without a transaction involving money, he is confirmed by his oath according to the soundest view, whether the debt be owed to him by his choice, such as a suretyship or a dower, or without his choice, such as the arsh of an offense or the fine for destroyed property, for the principle is nonexistence.
This concerns the one to whom no property was known beforehand: if property was known to him beforehand, he is detained until he establishes evidence of his insolvency. In the opposite of the soundest view: he is not confirmed without evidence, for the apparent state of a free man is that he owns something. According to a third view: if the debt is owed to him by his choice, he is not confirmed without evidence; without his choice, he is confirmed by his oath.
Evidence of insolvency is accepted immediately, and that the witness, who is two in number, say: "He is in hardship", without limiting himself to pure negation, such as saying: "He owns nothing", for he cannot observe that. When his insolvency is established before the judge, it is not permitted to detain him nor to accompany him, but a deferment is granted him until ease, according to the verse; unlike the one whose insolvency is not established: it is permitted to detain him and accompany him. The stranger incapable of evidence of insolvency: the judge is obliged to delegate for it someone who investigates his condition; if insolvency predominates in his view, he testifies to it, so that he not be detained forever.
The detainee in hardship does not sin by missing Friday, for he is excused; the judge may prevent him from it if the interest requires, as well as from the enjoyment of his wife and conversation with friends, not from her visit for a need, such as carrying food; he may prevent him from smelling perfumes for pleasure, except need, such as illness; he is not prevented from practicing a craft in detention, even if he be dilatory. His upkeep is obligatory upon himself, and the costs of detention fall upon him, for it is the rent of the place.
If a woman is detained for a debt without her husband's authorization, her upkeep lapses during the detention; if the debt was established by evidence, as when she was possessed by mistake and claimed the arsh, her upkeep then lapses, even if she be excused. The one whose insolvency is established is released, even without the creditor's permission, because of the disappearance of the cause.
The counterparty's retraction against the bankrupt concerning what he dealt with him in and whose compensation he did not receive: whoever sold without receiving the price, and then the buyer is interdicted for bankruptcy while the sold item remains with him, the seller has, under the following conditions, the right to annul the sale and retrieve the sold item, according to the saying of the Prophet (peace be upon him):
"Whoever finds his property intact with a man who has gone bankrupt, or with a man who has become insolvent, has more right to it than anyone else."Reported by al-Bukhari (2272) and Muslim (1559)
He has no need, for the annulment, of a ruler's judgment, but he annuls it himself according to the soundest view; and even if a ruler rendered a judgment prohibiting the annulment, it is not overturned. The soundest view: his option, that is, immediate annulment, is like the option for defect, in that they share the repulsion of harm; if he claims ignorance of the immediate due date, that is like restitution for defect, and even more deserving, for it escapes most people, unlike that.
The soundest view: annulment is not obtained by selling or gifting the item and the like; such dispositions are annulled, just as it is not obtained, in the gift to a son. According to the other view: it is obtained, as for the seller during the option period. Annulment is obtained by the words: "I annulled the sale", "I rescinded it", "I lifted it"; likewise by: "I returned the price", or "I annulled the sale over it", according to the soundest view.
He has the right to retrieve his property intact by annulment in the other exchanges equivalent to sale, which are pure, such as lease, loan and salam, because of the generality of the preceding hadith: if he leased a house for an immediate rent and did not receive it until the lessee was interdicted, he has the right to retrieve the house by annulment, giving the benefit the rank of the item in sale; or if he lent dirhams, or the capital of a salam, immediate or deferred, that became due, and then the debtor was interdicted while the dirhams remain under the following conditions: he has the right to retrieve them by annulment. Excluded are the non-equivalent exchanges, such as gift, and the pure non-equivalent contracts, such as marriage and the settlement over intentional blood, for they are not within the meaning of the cited text, by the absence of compensation in gift and the like, and by the impossibility of obtaining it in the rest.
The retraction in sale has conditions, among which: first, that the price be due at the time of the retraction: retraction during the term is not valid, for the deferred is not demanded. Second, that the receipt of the price have become impossible through bankruptcy: if bankruptcy is excluded and he refuses to pay the price while able, or flees, or dies solvent and the heir refuses delivery, there is no annulment according to the soundest view, for recourse to the ruler to obtain it is possible; impossibility, if supposed, is rare and not taken into account. Third, that the sold item or its equivalent remain in the buyer's ownership, according to the preceding hadith: if his ownership ceased over it, there is no retraction, for it left his ownership. Fourth, that no binding right have attached to the sold item, such as a pledge or an offense entailing money suspended upon the person: if the attachment disappears, retraction becomes permitted (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.).
The Hanbalis said: the bankrupt is the one upon whom more than his property is binding. The debtor is not pursued nor interdicted for a debt that has not yet fallen due, for he is not bound to pay it before its due date, and there is no right to demand it: there is therefore no right to prevent him from what is his because of it. But if he intends a long journey in which his debt would fall due before his return, his creditor has the right to prevent him from it until he secures it by a retrievable pledge, or a solvent surety; for he is not permitted to delay the right from its place, and travel delays it; likewise if it becomes due only afterwards.
A deferred debt does not become due through insanity, for the term is the debtor's right which does not fall away through his insanity. It does not become due through death either if his heirs secure it by a retrievable pledge or a solvent surety, according to the saying of the Prophet (peace be upon him):
"Whoever leaves behind a right, it belongs to his heirs."Reported by al-Bukhari (2297) and Muslim (1619)
For the term is the deceased's right which passes to his heirs; and because his death does not make his property due, it does not make his debts due either, like insanity.
It falls upon the solvent debtor to pay a due debt immediately at his creditor's demand, according to the saying of the Prophet (peace be upon him):
"The delay of payment by the solvent is an injustice."Authentic hadith, mentioned previously
If he delays it until complaint, it falls upon the ruler to order him to pay; if he refuses, he detains him, according to the saying of the Prophet (peace be upon him):
"The flight of the solvent is an injustice that renders lawful the violation of his honor and his punishment."Good hadith, reported by Abu Dawud (3628), al-Nasa'i (4689) and Ibn Majah (3427)
If he does not pay, the ruler sells his property and pays his debt, and does not release him until his condition is established, that is, his insolvency, or the debtor shows charity by paying or releasing, or his creditor accepts his release. Shaykh al-Islam Ibn Taymiyya (may Allah have mercy on him) was asked in Majmu al-Fatawa (30/24-25) about someone upon whom a debt weighed and who did not pay it before being compelled to pay before the ruler and others, and who bore the cost of the journey: does the cost fall upon the debtor or not? He answered: praise be to Allah: if the one upon whom the right rests is capable of paying and delayed until one was compelled to complain, what was lost for that reason falls upon the unjust delayer, if he imposed the cost in the customary manner. Ibn Muflih affirmed it also in al-Furu (4/224) and al-Mubdi (4/308); see al-Insaf (5/276).
If the debtor is in hardship, his release becomes obligatory, his claim is unlawful, and interdiction and detention against him are unlawful so long as he is in hardship, according to Allah's word:
"And if the debtor is in hardship, grant him a deferment until ease."
Surah al-Baqara, 280
And according to the saying of the Prophet (peace be upon him) concerning the one who suffered a loss upon his fruits:
"Take what you find, and you have right to nothing but that."Authentic hadith, reported by Muslim (1556)
If he claims hardship, whether his debt has a compensation or not, such as a price or a loan, and property was known to him whose persistence is most probable, or he confessed to wealth: he is detained, unless he establishes evidence informing of his inner state, heard before and after detention; otherwise he swears and is released. If the creditors of the one owning property insufficient for his debt ask the ruler to interdict him, he is obliged to answer them, for it repels harm from the creditors, and it is therefore owed to them for their payment. It is recommended to announce the bankrupt's interdiction, likewise that of the prodigal, so that people know their condition and deal with them only knowingly.
The effects of the interdiction: the benefit of the interdiction comprises four rulings. The first is the attachment of the creditors' right to the property, for it is sold for their debts: their rights therefore attach to it like the pledge. No disposition by him over it is valid, such as his sale, gift, waqf and the like, for it is an interdiction established by the ruler which prevented his disposition, like the interdiction for prodigality. His disposition within his liability by purchase or confession is valid, for he is qualified to dispose, and the interdiction touched only his property, not his liability. He is pursued after the lifting of the interdiction, for it is a right upon him: its attachment to his property was prevented only for the creditors' right, which preceded it; once they are paid, the impediment is gone.
The second: whoever finds intact what he sold or lent has more right to it, according to the saying of the Prophet (peace be upon him):
"Whoever finds his property intact with a man who has gone bankrupt, or with a man who has become insolvent, has more right to it than anyone else."Reported by al-Bukhari (2272) and Muslim (1559)
He has more right to it only if several conditions are met, as follows:
"Any man who sells an item and the buyer goes bankrupt, and the seller received nothing of the price, if he finds his item intact, he has more right to it; and if the buyer dies, the owner of the item sets the precedent for the creditors."Authentic hadith, reported by Abu Dawud (3522) and Malik in al-Muwatta (1357)
In the hadith of Abu Hurayra, raised to the Prophet (peace be upon him): "Any man who goes bankrupt, if someone finds his property with him without having been able to claim anything of it, that property belongs to him."Reported by Ahmad
And according to Abu Dawud's wording: "If he received part of the price, he sets the precedent for the creditors."Authentic hadith, reported by Abu Dawud (3523) and Ibn Majah (2359)
As soon as any of these cases occurs, restitution is prevented, for what precedes. The third: it falls upon the ruler to distribute his property of the same species as the debt, and to sell what is not of its species at the price of the like or more, then to distribute it immediately among the creditors according to their due debts, for that is equity among them, and because that is the principal purpose of the interdiction demanded by the creditors or some of them; it is recommended to bring the bankrupt and the creditors together, for that is gentler upon their hearts and farther from suspicion. It is not incumbent upon them to declare that there is no creditor besides them. If a creditor of the bankrupt appears after the distribution of his property, it is not annulled: each creditor is repaid his share, for had he been present he would have shared with them; the same applies when he appears.
As for the deferred debt, it does not become due through bankruptcy, for the deferral is its holder's right: it therefore does not fall away through his bankruptcy, like his other rights; the holders of due debts thus take his property to his exclusion, for he has no right to obtain his right before its term; if his debt becomes due before the distribution, he shares with them, for he is equal to them in obtaining it. Only a ruler lifts his interdiction, for it was established by his judgment and therefore disappears only through him; if he pays what weighs upon him, the interdiction is lifted without the ruler's judgment, because of the disappearance of its cause.
There must be left to him what he needs: from dwelling, his house without which he cannot do is not sold; from servant, a suitable servant resembling him, for that is among what he cannot do without, and it is therefore not sold for his debt, like his book; from what he trades with if he is a merchant; from the tool of the craft if he practices a craft. He and his family are owed the least upkeep of their like in food, drink and clothing; he is maintained in a fitting manner from his property until the distribution, unless he has earnings.
The fourth is the cessation of demand against him, according to Allah's word: "And if the debtor is in hardship, grant him a deferment until ease" (Surah al-Baqara, 280), and the saying of the Prophet (peace be upon him): "Take what you find, and you have right to nothing but that" (authentic hadith, mentioned previously). Whoever lent to him or sold to him knowing of his interdiction can no longer demand it before the lifting of his interdiction, because of the attachment of the creditors' right to the substances of the bankrupt's property (al-Mughni 4/265 ff., al-Mubdi 4/305 ff., al-Furu 4/224, al-Insaf 5/273-279, Sharh Muntaha al-Iradat 3/439 ff., Kashshaf al-Qina 3/494 ff., al-Rawd al-Murbi 2/47-50, Manar al-Sabil 2/141-150).
The bankrupt's dispositions before his interdiction: Ibn Qudama (may Allah have mercy on him) said: what the bankrupt did before the ruler's interdiction over him, such as selling, giving, confessing, paying one of the creditors or otherwise, is permitted and effective; Abu Hanifa, Malik and al-Shafi'i said so, and no one is known to have contradicted them; for he is of sound judgement, not interdicted: his disposition is therefore effective like that of others; and because the cause of prevention is the interdiction, which does not precede its cause; and because he is qualified to dispose without being interdicted: he is therefore like the solvent one. If he leased a camel outright or a house, his lease is not annulled by bankruptcy, and the lessee has more right to it until the end of the term.
As soon as he is interdicted, his disposition is no longer effective over any part of his property: if he disposes by sale, gift, waqf, or dowers a woman with his money, or otherwise, it is not valid; Malik and al-Shafi'i said so in one view, and in the other: his disposition is suspended: if the creditors' payment is secured by what remains of his property, it is effective, otherwise it is void. Our view: he is interdicted by a ruler's judgment, his disposition is therefore not valid, like the prodigal; and because the creditors' rights have attached to the substances of his property, his disposition over it is therefore not valid, like the pledged property.
His disposition within his liability, such as buying, borrowing or standing as guarantor, is valid, for he is qualified to dispose: the interdiction occurred against him, and it touches only his property, not his liability; but the holders of these debts do not share with the creditors, for they consented to that knowing he was a bankrupt and dealing with him; the one who did not know failed in that, for this one is in the place of notoriety and will be pursued after the lifting of his interdiction. If he confesses a debt, it binds him after the lifting of the interdiction: Ahmad stated it explicitly, and it is the view of Malik, Muhammad ibn al-Hasan, al-Thawri and al-Shafi'i in one view; in the other: he shares with them; Ibn al-Mundhir held it, for it is an established debt attributed to the period before the interdiction: its holder therefore shares with the creditors, as if it had been established by evidence.
Our view: he is interdicted, his confession is therefore not valid in that for which he was interdicted, like the prodigal, or like the pledgee who confesses over the pledge; and because it is a confession whose establishment nullifies the right of another than the speaker of the confession: it is therefore not accepted; or a confession against the creditors, which is therefore not accepted, like the pledgee's confession; and because he is suspect in his confession: it is therefore like a confession against another, and it differs from evidence, for there is no suspicion regarding it. If the bankrupt is a craftsman, such as a fuller or a weaver, and holds items and then confesses in favor of their owners, his confession is not accepted, and the view concerning it is like that of what precedes; the item in his hands is sold and distributed among the creditors, and its value becomes obligatory upon the bankrupt if he is capable, for it was poured into his debt by a cause of his doing: its value is therefore due upon him, as if he had authorized it. If an oath turned against the bankrupt, he declined it and judgment was rendered against him, his status is that of his confession: it binds him with respect to him without his sharing with the creditors (al-Mughni 4/283-284, al-Sharh al-Kabir 4/464).
Al-Buhuti (may Allah have mercy on him) said: the bankrupt's disposal of his property before the interdiction against him is explicitly valid, even if his debt covers all his property, for he is of sound judgement, not interdicted; and because the cause of prevention is the interdiction, which therefore does not precede its cause. It becomes unlawful if he harms his creditor: al-Amidi al-Baghdadi mentioned it (Sharh Muntaha al-Iradat 3/448).
2 - The interdiction of the sick: the jurists of the four schools agree that the sick person stricken with the feared mortal illness from which death habitually arises, even if death does not follow it predominantly, is interdicted in what exceeds a third of his property, a right of the heirs, whether male or female, prodigal or discerning, according to the hadith of Abu Hurayra (may Allah be pleased with him), raised to the Prophet (peace be upon him):
"Allah has made charity, at your death, from a third of your property, an increase in your deeds."Good hadith, reported by Ibn Majah (2709)
For the Prophet (peace be upon him) informed that they have right only to a third, without increase over it. And because the principles indicate that the presence of the cause of death equals the presence of death itself, as shown by the fact that if he manumitted, it would be from the third, and that if he gave to his heir, it would not be permitted, for one cannot bequeath to the heir; and when it is so, just as it is not permitted to bequeath after death more than a third, it is not permitted for him either to give during illness more than a third. As for the light illness, such as ophthalmia, headache, a mild fever, an ailment of the hand or foot, scabies and all from which death does not habitually arise: there is no interdiction. The interdiction of the sick bears on generosity, such as gift, charity, endowment and bequest, when the generosity exceeds a third of his property, not on the third and below (al-Mabsut 24/167, al-Inaya 13/215, al-Sharh al-Kabir 4/498-499, Tahrir al-Mukhtasar 4/175, Sharh Mukhtasar Khalil 5/304, al-Sharh al-Saghir with al-Sawi's hashiya 7/370, al-Muqaddimat al-Mumahhidat 3/126, al-Mu'una 2/510, Mughni al-Muhtaj 3/108, Nihayat al-Muhtaj 4/405, al-Dibaj 2/233, al-Najm al-Wahhaj 4/396, al-Mughni 4/295, al-Mubdi 4/305, Kashshaf al-Qina 3/486).
3 - The interdiction of the wife in what exceeds a third of her property: the jurists differed concerning the wife: does the husband have the right to interdict her in what exceeds a third of her property, or is interdiction not permitted him? The Malikis and the Hanbalis in one narration hold that the husband has the right to interdict his free, discerning wife in generosity exceeding her third, even a manumission to which she swore and then broke her oath: he has the right to reverse it, and nothing is freed by her; and if her generosity exceeding the third was realized by a suretyship in favor of other than her husband, he has the right to reverse it; not if she stood surety for him: he then has no right to reverse it; and her generosity through the excess over the third stands until the husband reverses it in whole or in part.
The husband has the right to reverse all she gave in generosity if she exceeded the third; not if she gave the third and below. When she has given the third and it has bound her, she cannot give after that third, unless a long time has passed after the generosity, such as half a year or more: she may then give from the remaining two-thirds; if the time has not elapsed, she may not, and the husband then has the right to reverse what she gives. If her husband did not know of her generosity before divorcing her or either of them dying, her act stands final: neither the husband nor his heirs have the right to annul it.
The proof that the woman is interdicted for her husband in her generosity through what exceeds the third is the saying of the Prophet (peace be upon him): "It is not permitted to a woman to dispose of her property when her husband has taken possession of her person." In one narration:
"It is not permitted to a woman to make a gift without her husband's permission."Good hadith, reported by Ahmad (2/179, 184, 207), Abu Dawud (3546, 3547), al-Nasa'i (2540, 3756, 3757), Ibn Majah (2388), al-Hakim in al-Mustadrak (2/54), al-Bayhaqi in al-Kubra (6/60-61) and in Marifa al-Sunan wa-l-Athar (4/463)
That is, in what exceeds the third, for the third is open to disposal by consensus of the scholars: the third and below therefore fall outside the generality of the report. And according to the saying of the Prophet (peace be upon him):
"A woman is married for four things: for her wealth, her lineage, her beauty..."Reported by al-Bukhari (5090) and Muslim (1466)
This indicates that the husband has a right to the keeping of her property in her hand. And because custom has it that the husband adorns himself with his wife's money, and finds in it aid and sustenance; the indication thereof is that the equivalent dower decreases and increases according to her property and its abundance, just as it decreases and increases according to her beauty; and when it is so, she cannot annul the husband's purpose for which he inclined toward marrying her, and the dower was completed for his purpose.
The majority of jurists, namely the Hanafis, the Shafi'is and the Hanbalis according to the madhhab, hold that the husband has no right to interdict his wife when she is of sound judgement, and that she then has the right to dispose of the whole of her property, according to Allah's word:
"And if you perceive in them sound judgement, hand over to them their property."
Surah al-Nisa, 6
A text apparent in the lifting of the interdiction from them and their full freedom of disposal. Evidences have come indicating the permission for the woman to practice the known craft and to give charity from her property, even without her husband's permission, whether she be a virgin, married or widowed. Among these evidences is what al-Bukhari (1/327-332, hadiths 978-979) and Muslim (2/602, hadiths 884-885) reported from Jabir ibn Abdallah (may Allah be pleased with them both): the Prophet (peace be upon him) stood on the day of the breaking of the fast and prayed, beginning with the prayer then the sermon; when he had finished, he came down, went to the women and exhorted them, leaning on Bilal's hand, while Bilal spread out his garment, then he said:
"Come, may my father and my mother be your ransom."
The women cast rings and earrings into Bilal's garment. Imam al-Nawawi (may Allah have mercy on him) said: in this hadith lies the permission for the woman to give charity from her property without her husband's permission, without that depending on a third of her property: this is our madhhab and that of the majority. Malik said: it is not permitted to exceed a third of her property without her husband's consent; our proof from the hadith is that the Prophet (peace be upon him) did not ask them whether they had sought their husbands' permission over that, nor whether it fell outside the third or not: had the ruling differed over that, he would have asked (Sharh Muslim 3/443; see Fath al-Bari 2/568). Maymuna had manumitted without informing the Prophet (peace be upon him), and he did not reproach her for it.
Imam al-Bukhari reported in his Sahih and titled a chapter, for it and for others: "Chapter on the woman's gift to other than her husband and her manumission when she has a husband: it is permitted if she is not prodigal; if she is prodigal, it is not permitted", according to Allah's word: "And do not give the prodigals your property, which Allah has made your sustenance" (Surah al-Nisa, 5). He then reported the hadith of Ibn Abbas (may Allah be pleased with them both): Maymuna bint al-Harith (may Allah be pleased with her) informed him that she had freed a slave woman without asking the Prophet's (peace be upon him) permission; on her turn day she said: "Did I inform you, O Messenger of Allah, that I freed my slave girl?" He said: "Did you really do so?" She said: yes. He said: "Had you given her to your maternal uncles, your reward would have been greater" (Sahih al-Bukhari 2/519, hadith 2452, in the chapter on the woman's gift to other than her husband and her manumission when she has a husband: it is permitted if she is not prodigal, and if she is prodigal it is not permitted, according to Allah's word: "And do not give the prodigals your property...").
The basis of the argument: Maymuna was of sound judgement, and she manumitted before consulting the Prophet (peace be upon him) without his annulling it upon her, rather he guided her to what is better: had no disposal of her property been effective for her, he would have annulled it.
Zaynab, Abdallah's wife, reported that she said: I was in the mosque and saw the Prophet (peace be upon him) say: "Give charity, even from your ornaments." Zaynab used to spend on Abdallah and on orphans in her care; she said to Abdallah: ask the Messenger of Allah (peace be upon him) whether my spending on you and on my orphans in my care counts as charity. He said: ask the Messenger of Allah yourself. I went to the Prophet (peace be upon him) and found at the door an Ansari woman whose need was like mine; Bilal passed by us and we said to him: ask the Prophet (peace be upon him) whether my spending on my husband and my orphans in my care counts as charity; and we said to him: do not disclose us. He entered and asked, and the Prophet (peace be upon him) said:
"Who are these two women?" He said: Zaynab. He said: "Which Zaynab?" He said: Abdallah's wife. The Prophet (peace be upon him) said: "Yes: she has two rewards, the reward of kinship and the reward of charity."Reported by al-Bukhari (1397) and Muslim (1000)
And he did not mention this condition to them. And because the one whose property must be handed over for his sound judgement may dispose without permission, like the boy; and because the woman is qualified to dispose, and her husband has no right over her property: he therefore has no power to interdict her in disposal in general, like her brother (al-Kafi 1/360-361, al-Sharh al-Kabir 4/498-499, Tahrir al-Mukhtasar 4/177-179, Sharh Mukhtasar Khalil 5/306, al-Sharh al-Saghir with al-Sawi's hashiya 7/373, al-Mu'una 2/164, al-Bayan 6/227, al-Mughni 4/300, al-Mubdi 4/305, Fath al-Bari 5/258-259, Umdat al-Qari 2/124).
4 - The interdiction of the apostate: the Shafi'is and the Hanbalis stated explicitly that the apostate is interdicted in his property, for its abandonment is spoils (fay) for the Muslims, and he may dispose of it with a disposition aimed at its destruction so as to deprive them of it. Does he need a ruler's judgment? Two views among the Shafi'is; if he returns to Islam, the interdiction is lifted from him only by the ruler's judgment, for it is an interdiction established by the ruler, which therefore does not disappear without his judgment. The Malikis said: apostasy is not among the causes of interdiction, for the apostate is not an owner (al-Dasuqi's hashiya with al-Sharh al-Kabir 4/475, Sharh Mukhtasar Khalil 5/290, al-Bayan 6/237, al-Najm al-Wahhaj 4/396, Mughni al-Muhtaj 3/108, Nihayat al-Muhtaj 4/406, al-Mughni 4/300, Kashshaf al-Qina 3/487, Sharh Muntaha al-Iradat 3/438, Manar al-Sabil 2/140).