Islamic Fiqh > Companies and leases > Ijara (leasing) > Stipulating liability on the shared hired worker
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Updated on 25 September 2026 at 6:57 PM
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The origin with the jurists of the four schools is that everything that is a trust does not become liable through a stipulation, for the contract requires that it remain a trust; if its liability is stipulated, one binds oneself to compensate what has no cause, and it therefore does not apply, as if one stipulated the liability of a deposit or the liability of wealth in its owner's hands. And what is liable does not lose its liability through a stipulation, for the contract requires liability; if its negation is stipulated, it is not removed as long as its cause exists, as if one stipulated the negation of liability for what one exceeds the limits in (al-Mughni, 5/312-313; al-Sharh al-Kabir, 6/366-367; al-Mubdi', 5/145; al-Insaf, 6/113).
On this basis, those of the jurists who say that the hand of the shared hired worker is a hand of trust, namely Abu Hanifa and Ahmad in one narration, say: stipulating liability on him is not permitted. And those who say his hand is a hand of liability, like the Malikis, the Shafi'is in the school, the Hanbalis in the school and the two companions of the Hanafis, say: stipulating liability on him is permitted, but negating liability is not; for what is liable does not lose its liability through a condition, the contract requiring it; if its negation is stipulated, it is not removed as long as its cause exists.
The Hanafis said: al-Zayla'i (may Allah have mercy on him) said: if liability is stipulated on the shared hired worker in the contract: what one cannot take precaution against is not permitted, by consensus; for it is a condition the contract does not require, bringing profit to one of the two: the contract is therefore corrupted. What one can take precaution against is a matter of disagreement: in the two companions' view it is permitted, for the contract requires it in their view; in his view it corrupts, for the contract does not require it, and the stipulation is thus corrupting in it (Tabyin al-Haqa'iq, 5/135; al-Hindiyya, 4/500). It is said in al-Jawhara: the hire is corrupted by conditions the contract does not require, as when liability is stipulated on the exclusive hired worker for what perishes through his act or without his act, or liability is stipulated on the shared hired worker for what perishes without his act, according to Abu Hanifa's view (may Allah have mercy on him). But if a condition the contract requires is stipulated, as when liability is stipulated on the shared hired worker for what perishes through his act, the contract is not corrupted (al-Jawhara al-Nayyira, 3/338; al-Hindiyya, 4/442).
The Malikis said: the hand of the shared hired worker is a hand of liability, and liability is established upon him even if its negation is stipulated; and the contract is corrupted by the mentioned condition, for it contradicts what the contract requires; and he has the fee of the like if he discovers the corruption only after the work, liability weighing upon him; for he only accepted the stipulated fee in order to have liability removed from him. The corruption by the condition takes place as long as he has not removed it before completing the work; otherwise the contract is valid (al-Sharh al-Kabir, 5/376; al-Taj wa-l-Iklil, 4/502; Sharh Mukhtasar Khalil, 7/29; Tahbir al-Mukhtasar, 4/578).
When liability falls upon the shared hired worker for what his hand has spoiled, they differed: does he guarantee the value of the loss on the day it was handed to him? And is the owner given the choice or not?
The Hanafis said: when liability falls upon the shared hired worker for what his hand has spoiled, the employer has the choice: if he wills, the worker guarantees its value unworked, without a fee; if he wills, he guarantees it worked, and he owes him the fee of the like (al-Jawhara al-Nayyira, 3/341; al-Hindiyya, 4/501).
The Malikis said: the craftsman, that is, the shared hired worker, guarantees that thing which perished with him at its value on the day its owner handed it to him; unless the craftsman admits that it perished or was lost after that, and its value then was greater than its value on the day of handover or of viewing: he is fined it, for he admitted against himself.
The fee is not owed to him, for he guaranteed its value on the day of its taking unworked; he therefore has no fee; and its owner cannot say: I pay the fee and take its worked value; that is only due if the craftsman admits it perished after the work (al-Sharh al-Kabir with the hashiya of al-Dasuqi, 5/376; al-Taj wa-l-Iklil, 4/501; Sharh Mukhtasar Khalil, 7/28; Tahbir al-Mukhtasar, 4/577-578).
The Shafi'is, according to the more correct view, said: its value is due on the day of its destruction, and the work is not valued, neither for him nor against him. According to the other view, the maximum value between the taking and the destruction is due (Rawdat al-Talibin, 4/56; Mughni al-Muhtaj, 3/411; Nihayat al-Muhtaj, 5/355; al-Najm al-Wahhaj, 5/376; Kanz al-Raghibin with the hashiyat of Qalyubi and 'Umayra, 3/197).
Al-'Imrani (may Allah have mercy on him) said in al-Bayan: as for the measure of what the worker guarantees, it is examined: if he is hired to work on an object in another's property or elsewhere, while watching it, we have said that the worker only guarantees through transgression; if he transgresses and then destroys it, the shaykh Abu Hamid said: its value on the day of destruction is incumbent on him, not on the day of transgression; for if he transgressed while it still existed, it was in its owner's hands, and his transgression ceased by the establishment of its owner's hand upon it.
If the worker works in property other than the employer's and the owner does not watch it: if we say his hand is a hand of trust and he transgresses upon it, its value is incumbent on him at the maximum from the transgression to the destruction; if we say his hand is a hand of liability, its value is incumbent on him at the maximum from its taking to its destruction. Some of ours say: its value is due on the day of loss, unless he transgressed upon it: then its value is incumbent on him at the maximum from the transgression to the destruction; the first view is the more correct.
As for the worker's entitlement to the fee when the object perishes after he has completed all or part of the work, it is examined: if the work takes place in the employer's property, or outside it while he watches it, the worker is entitled to the fee of what he did; for each time he works something, he becomes its taker. The shaykh Abu Hamid said: except if the worker transgressed upon the object at the moment of beginning the work: he is then entitled to no fee for what he did, for he is a transgressor at the time of the work and therefore entitled to no fee.
If the work takes place in the worker's property and the employer does not watch it, our companions differed: the shaykh Abu Ishaq said: if we say he is a trustee, he is not entitled to the fee, for he did not hand over the work; if we say he is liable, the fee is owed to him, for he stands answerable for the worked thing and becomes, by the liability, one who hands over the work: he is therefore entitled to the fee. The shaykh Abu Hamid and Ibn al-Sabagh said: the worker is not entitled to the fee under either view; if he took the fee, he returns it; for the fee only settles for him by the handing over of the work, and he handed him nothing of the work (al-Bayan fi madhhab al-imam al-Shafi'i, 7/387-388).
The Hanbalis said: if the craftsman destroys the garment after working on it, or works it otherwise than according to the description stipulated by its owner, the craftsman guarantees it, for his transgression; and the owner has the choice, for the transgression concerns his wealth: the choice therefore belongs to him, to the exclusion of others, between two things:
The owner's word on the description of the work prevails if they differ over the description after the worked thing perishes, so that he condemns the worker for it; for he is the one who imposes the fine.
The same applies to what perishes in the shared hired worker's hands after his work, in a manner that makes it liable upon him: the owner chooses between guaranteeing it worked, while paying the fee, and guaranteeing it unworked, without a fee.
Likewise the liability of the carried goods, when it perishes in a manner that makes it liable upon the carrier: its owner chooses between the carrier guaranteeing its value at the places where he handed it to him, without a fee; for he did not hand over his work; and guaranteeing it at the place where the carrier corrupted it or where it was corrupted as if through his transgression; the carrier then has the fee up to that place, for his guarantee of its value there amounts to its being received there (al-Mughni, 5/307; al-Kafi, 2/331; al-Sharh al-Kabir, 6/127; al-Mubdi', 5/112; al-Insaf, 6/77; Kashshaf al-Qina', 4/44-45; Sharh Muntaha al-Iradat, 4/69-70; Matalib Uli al-Nuhha, 3/683-684).
The scholars agreed that the exclusive hired worker is a trustee who does not guarantee what perishes under his hand without transgression or negligence, and the majority of the scholars hold that the shared hired worker is liable. If a shared hired worker hires an exclusive hired worker to work for him by the day, by the month or otherwise, and the object perishes in his hands without transgression or negligence, most of the jurists of the four schools who make the shared hired worker liable say: the exclusive hired worker who works for the shared hired worker does not guarantee; each keeps his own ruling.
The Malikis said: the worker who is under the craftsman's hand does not guarantee what perishes, neither for the craftsman nor for the owner of the work product that perished; for he is a trustee over the craftsman as long as he is not negligent, whether absent or not; if something is given to him to work on in his house or is absent from him, there is no liability (al-Sharh al-Kabir with the hashiya of al-Dasuqi, 5/373; al-Taj wa-l-Iklil, 4/496; Mawahib al-Jalil, 7/429; Sharh Mukhtasar Khalil, 7/28; Tahbir al-Mukhtasar, 4/575; Hashiyat al-Sawi, 9/36).
The Hanafis said, in al-Khulasa: a man handed spun thread to a man to weave it into linen, and he handed it to another to weave, and it was stolen from his hand. If the second was the first's worker, neither of them guarantees; if the second was a third party, the first guarantees in place of the other according to Abu Hanifa; and in the two companions' view, the first is liable absolutely, and as for the third party, if the first wills, he guarantees, and if he wills, the other does (al-Bahr al-Ra'iq, 7/303).
The Hanbalis said: if the shared hired worker hires an exclusive hired worker, like a tailor in a shop who hires a worker for a period to employ him, and the owner of the shop accepts the sewing of a garment and hands it to his worker, who tears it or spoils it, he does not guarantee it, for he is an exclusive hired worker; and the owner of the shop guarantees it, for he is a shared hired worker (al-Mughni, 5/307; al-Kafi, 2/331; al-Sharh al-Kabir, 6/119-120; al-Insaf, 6/77; Kashshaf al-Qina', 4/41; Sharh Muntaha al-Iradat, 4/71).
The jurists differed concerning the blacksmiths, the fullers, the tailors and the other craftsmen, when they refuse to return and withhold what is in their hands to secure their fee: may they do so? And what is the ruling if the object is then lost or perishes: do they guarantee it? With distinctions among them.
The Hanafis said: every craftsman whose work leaves a visible effect in the object may withhold the object after completing his work until he obtains the stipulated fee: the dyer, the fuller and likewise the tailor; for the attribute of the contract remains in the garment, and he therefore has the right to withhold to obtain the counter-value, as in sale; this, if his work took place in his house and the fee is immediate. If the fee is deferred, or the work took place in the employer's house, he has no right to withhold.
If he withholds and the object is lost, there is no liability upon him according to Abu Hanifa, for he is not a transgressor in withholding: it remains a trust as it was; and he has no fee, for the object of the contract perished before delivery. In Abu Yusuf's and Muhammad's view, he guarantees; for the thing in his hands was liable before the withholding: if he withholds it, it is more deserving of liability; but in their view, with the choice: if he wills, its value unworked is guaranteed, without a fee; if he wills, worked, with the fee.
He whose work leaves no effect on the object may not withhold the object for the fee, by consensus: the porter on his back or on a riding beast, the sailor who owns the ship; for what has no effect on the object, the counter-value only answers the work itself, which is one thing, since one does not benefit from part of it without the other; each time he completes, it reaches the employer's hands: he therefore cannot withhold it after the demand, like the entrusting hand; that is why a deposit cannot be withheld for a debt. If he withholds and the thing perishes before delivery, the fee does not fall away; for, as we said, as soon as he did the work, it reaches the employer delivered, through its coming about in his hands: the fee is therefore established upon him and cannot fall away through the loss; and he guarantees, for he withheld it without right and becomes a usurper by withholding; Muhammad explicitly stated usurpation and said: if the porter withholds the goods in his hand, he is a usurper.
This differs from the runaway slave, for whom the one who brings him back may withhold to obtain his bounty, although his work has no effect; for he was at the doors of destruction and gave him back his life, as if he had sold it of himself: he therefore has the right to withhold. The porter who withholds the goods is a usurper, for his work has no effect, and the object is a trust in his hands: if he withholds it for his debt, he becomes a usurper, like the deposit, which cannot be withheld for a debt.
Then, if he withholds the object, he guarantees it like usurpation, as has preceded; and the owner has the choice: if he wills, its value is guaranteed him, that is, its legal value, carried, with the fee; if he wills, uncarried, without a fee. Abu Yusuf said: as for the porter who reaches the destination and demands the fee before putting the thing down from his neck, it is not granted him until he puts it down; for the lowering is part of the completion of the work.
The reason is what we said: the object was a trust in his hands; if he withholds it for his debt, he becomes a usurper, like one who withholds a deposit for a debt. That is why we said that the work only becomes delivered to the employer after completion, so that the worker cannot claim the fee before completion, when the worked thing is in the worker's hands; if it is in the employer's hands, the measure of what was done to it becomes delivered before completion, until he can claim the corresponding measure of the period: if a man is hired to build in his property or in what is in his hands, a building in his house, a covered vestibule or a wing, or to dig a well, a canal or a river in his property, and he does part of it, he may claim its share of the fee; but he is compelled to complete the rest, even if the building is demolished, the well collapses, water and earth enter it and level it with the ground, or the vestibule falls: he has the fee of what he did, at its share; for, being in the employer's property or hand, each time he does something it reaches his hand before perishing and becomes delivered: the counter-value therefore does not fall away through the loss.
If it is otherwise, in a property and a hand other than his, he may claim no fee before the completion of his work and its delivery; even if it perishes before delivery, no fee is due; for, not being in his property or his hand, the obligation of the fee is suspended upon completion and entirety (Bada'i' al-Sana'i', 4/204-205; al-Jawhara al-Nayyira, 3/368-369; al-Lubab, 1/492-493; al-Ikhtiyar, 3/66; al-Durr al-Mukhtar, 6/17-18; al-Hindiyya, 4/414).
The Malikis: it is said in al-Mudawwana: I say: what do you think of the blacksmiths, the fullers, the tailors, the craftsmen, the porters, the muleteers and the owners of ships: may they refuse what they have done for a fee and what they have carried for hire, withhold what is in their hands until they obtain their hire and the fee of their work? He said: Malik said: yes, they may withhold what is in their hands until they obtain their hire and the fee of their work.
I say: what do you think if these workers, these porters, these muleteers and these owners of ships withhold these things and they are lost after their withholding? He said: as for what is lost with the craftsmen, like the dyers and the tailors you mentioned: no fee for them, and liability necessarily falls upon them; for they accepted these goods on the basis of liability, unless they establish evidence of the loss: they are then released from liability, and there is no fee for them, for they did not hand over their work to the owners of the goods.
As for the goods they carry from the cloth market and all things, except what is eaten and drunk: no liability if it is lost, unless they absent themselves with it and appropriate it: they are then like a pledge and guarantee what is in their hands; if they did not absent themselves with it, no liability, and the fee is theirs in full if the transport reached its end and the loss occurred in either case.
As for food, if it is lost: the hirers guarantee it, unless they have evidence of the loss without their act, or the owners of the food are with it: no liability; and the fee is theirs in full if they reached its end. If they did not reach its end and the hirers claim the loss without evidence, they are not believed; they are told: bring like food, if the owners are not with them; if they have evidence, the owners are told: bring like food, and the camel-driver shall carry it for you to the end, and the hire is upon you in full. All of this is Malik's word, except what concerns ships, whose hire is upon delivery: Malik said: if the ship sinks, there is no hire; and the hire of ships was fixed upon delivery.
Malik said: likewise what is carried in the market, which a man carries on his neck, and the mules that carry: if the beast stumbles or the man stumbles and the load falls and breaks, or he carries it to a land and the camel stumbles or the beast causes the loss of what it carries, its case is that of the ships: no hire; for they only carried it upon delivery. Malik said likewise; and their case, in liability, is that of the porters and muleteers from land to land. I say: and this is Malik's word. He said: yes (al-Mudawwana al-Kubra, 11/495-497).
The Shafi'is have two views on this. Al-Shirazi (may Allah have mercy on him) said: if a craftsman is hired for a work of sewing or dyeing and he works, may he withhold the object for the fee? Two aspects: one: it is not permitted, for he did not pledge the object with him: withholding is therefore not lawful, as if he were hired to carry goods, carried them, then wished to withhold the goods for the fee. The other: it is permitted, for his work became his property: withholding for the counter-value is therefore lawful, like the sold thing in the seller's hands (al-Muhadhdhab, 1/410).
Al-Mawardi (may Allah have mercy on him) said: the lessor of land may not withhold the land against the lessee for payment of the rent; nor may the porter withhold what he was hired to carry in order to take the fee; for it is a trust in his hands, not a pledge. As for the craftsman hired for a work of sewing, goldsmithing or dyeing, may he withhold what is in his hands of the work for his fee? Two aspects: one: it is not permitted to him, by analogy with what we said. The other: it is permitted to him, for his work is a property for him, like the seller; and Allah knows best (al-Hawi al-Kabir, 7/472).
The Hanbalis said: if the craftsman withholds the garment for his fee after working it, whether he shortened it, sewed it or dyed it, and did the like, and it perishes, he guarantees it; for he did not pledge it with him and he was not permitted to keep it: liability therefore falls upon him, like the usurper.
If an employer becomes insolvent, that is, he bought a garment and gave it to a craftsman who worked it, then its seller comes demanding it after the rescission of the sale, because of the presence of his goods with the insolvent one, the craftsman may withhold the garment for his fee; for the work, which is its counter-value, exists in the garment itself: he therefore possesses the withholding, the employer's insolvency being manifest, like one who hires out his beast to someone for an immediate fee, then the hirer's insolvency appears: the lessor may then withhold it with him and rescind the hire; and if his fee exceeds what its value increased by, he takes the surplus and shares with the creditors for the rest of the fee (al-Mughni, 5/310; al-Mubdi', 5/111; Kashshaf al-Qina', 4/44-45; al-Insaf, 6/77).
Imam Ibn al-Qayyim (may Allah have mercy on him) said: the jurists differed: does the seller possess the withholding of the goods for their price? And does the employer possess the withholding of the object after the work for the fee? Upon three views: the first: he possesses it in both cases; this is Malik's and Abu Hanifa's view, and it is the chosen one. The second: he possesses it in neither; this is the famous position of Ahmad's school among his companions. The third: he possesses the withholding of the hired object for its work, not the withholding of the sold thing for its price. The difference between them is that work follows the regime of objects: it is therefore answered by the counter-value, and he becomes as it were the partner of the object's owner through his work; the effect of his work remains in the object, and he therefore need not hand it over before taking his counter-value, unlike the sold thing: it entered the buyer's property, the price rests upon his responsibility, and no attachment to the object remains with the seller. Whoever equated them said: the fee has passed into the responsibility, and the pledge of the object for it was not stipulated: he therefore does not possess the withholding.
On this basis, the device for withholding in both cases, so that he reaches his right, is to stipulate upon him the pledge of the hired object for its fee, saying: "I pledge you this garment for its fee, which is such-and-such"; and likewise in sale: one stipulates upon the buyer the pledge of the sold thing for its price until he hands it over; there is no harm in this in principle, no meaning, no strong reason preventing the validity of this condition and this pledge. They agreed that if he stipulates upon him the pledge of another object for the price, it is permitted; what then prevents the pledge of the sold thing for its price, with no difference between his taking it or not, according to the two more correct views? Ahmad explicitly stated the lawfulness of stipulating the pledge of the sold thing for its price, and it is the correct, in accordance with the rules and foundations of the Law (I'lam al-Muwaqqi'in, 4/32-34).
The qadi and his companions said: it is not valid; Ibn 'Aqil explained it by saying that the buyer pledges what he does not own: it is therefore not valid, as if one stipulated that he pledge a slave he will buy from another. This explanation is null: the pledge only takes place after ownership, and the stipulation prior to ownership is not like the pledge of the ownership. The difference between this issue and the stipulation of the pledge of Zayd's slave is that the stipulation of the pledge of Zayd's slave involves gharar (risk): it may be possible or not; unlike the stipulation of the pledge of the sold thing for its price: if the contract is completed, the sold thing becomes a pledge; if it is not completed, we know there is no price upon which to withhold the pledge: there is thus no risk at all. The explicit text is the wiser and the more correct, on the basis of him who says that the withholding of the sold thing for its price is binding: this is the school of Malik and Abu Hanifa, one of al-Shafi'i's two views, and the school of some of Ahmad's companions, and it is the correct, though it contradicts Ahmad's explicit statement; for the contract of sale requires equality in taking and delivering: compelling the seller to deliver before the presence of the price and the ability to take it harms him; if he possesses the withholding for its price without a condition, it is more fitting and safer that he possess it with the condition. The qadi's and his companions' word contradicts Ahmad's explicit statement and the analogy: if he stipulates that the buyer take the sold thing then pledge it for its price with the seller, that is more deserving of validity (I'lam al-Muwaqqi'in, 4/32-34).
When the owner of the object hands the object to the worker for him to work it, leaving it absolute, the worker may work it with his own hands, and he may hire whoever will work it; for what is required of him is a work within his responsibility, which he can perform with his person or with the help of another, like the settling of a debt.
If it is stipulated upon the craftsman that he work with his own person, he may not employ another, saying: on condition that you work with your person or your hand; for work varies among craftsmen in quality and mediocrity: the condition is therefore restrictive and becomes obligatory, as the benefit in a specific place becomes obligatory.
But it is said in al-'Inaya: this deserves reflection; for if he acts contrary to it in a good way, by employing one more skilled than himself in that craft, or by handing over a stronger mount, it would be proper for that to be permitted (al-'Inaya Sharh al-Hidaya, 12/353).
Al-Kasani (may Allah have mercy on him) said: the worker may work with his own hands and with his workers, if it is not stipulated upon him in the contract that he work with his hand; for the contract falls upon the work, and a man may work with his person or through another; and his workers' work is done for him, as if he had done it himself; unless the work of his own person is stipulated: the contract then falls upon the work of a specific person, and specification is beneficial, workers differing in work: it becomes obligatory, and it is not permitted to deliver it from another person without the employer's consent, like one who hires a specific camel for carrying: he is not compelled to take another. If he is hired for carrying without specifying a camel, the hirer may hand him any camel he wishes; so it is here (Bada'i' al-Sana'i', 4/208; see al-Jawhara al-Nayyira, 3/370; al-Lubab, 1/493; al-Ikhtiyar, 3/68; Tabyin al-Haqa'iq, 5/112; al-Bahr al-Ra'iq, 7/303; al-Durr al-Mukhtar, 6/18).
There is no disagreement among the jurists on the lawfulness of cupping (hijama). Ibn Taymiyya said: treatment by cupping is lawful, by the mass-transmitted Sunna and the agreement of the scholars (Majmu' al-Fatawa, 30/194). They nevertheless differed over taking a fee for cupping: is it permitted, disapproved because lowly, or forbidden because foul?
The qadi of the Hanbalis went to prohibiting the cupper's fee; it is mentioned that Ahmad explicitly stated it in several places. He said: if something is given to him without contract or condition, he may take it and spend it on his mounts' fodder, his slaves' food and the expenses of his craft; it is not lawful for him to eat of it, according to the hadith of Rafi' ibn Khadij (may Allah be pleased with him) from the Messenger of Allah (peace and blessings of Allah be upon him); and the foul (khabith) means the forbidden (Sharh al-Zarkashi, 2/189-190; al-Mubdi', 5/92; Matalib Uli al-Nuhha, 3/643; Fath al-Bari, 4/459).
"The dog's price is foul, the prostitute's dowry is foul, and the cupper's earning is foul."Narrated by Muslim (1568)
Abu Hurayrah (may Allah be pleased with him) said: the Messenger of Allah (peace and blessings of Allah be upon him) said: "Among ill-gotten gains (suht) is the cupper's earning."Narrated by al-Tahawi in Sharh Ma'ani al-Athar (4/129)
Anas ibn Malik (may Allah be pleased with him) said: "The Messenger of Allah (peace and blessings of Allah be upon him) forbade the cupper's earning."Narrated by al-Tahawi in Sharh Ma'ani al-Athar (4/129)
'Awn ibn Abi Juhayfah said: "My father bought a cupper and broke his cupping glasses. I said: O my father, why did you break them? He said: The Messenger of Allah (peace and blessings of Allah be upon him) forbade the price of blood."Narrated by al-Tahawi in Sharh Ma'ani al-Athar (4/129)
The majority of jurists, the Hanafis, the Malikis, the Shafi'is and the Hanbalis in the school, went to the lawfulness of taking a fee for cupping, with disapproval among the Shafi'is and the Hanbalis; according to what is established in the two Sahihs from Ibn Abbas (may Allah be pleased with them both): the Prophet (peace and blessings of Allah be upon him) "was cupped and gave the cupper his fee" (Bukhari 5367, Muslim 1202).
In Muslim's wording, Ibn Abbas (may Allah be pleased with them both) said:
"A slave of the Banu Bayada cupped the Prophet (peace and blessings of Allah be upon him); the Prophet gave him his fee and spoke to his master, who lightened his tax; had it been an ill-gotten gain, the Prophet would not have given it."Narrated by Muslim (1202)
They said: this hadith abrogates his forbidding, his disapproval and his prohibition of the cupper's earning (al-Istidhkar, 6/431).
Humayd al-Tawil said: Anas was asked about the cupper's earning, and he said: "The Messenger of Allah (peace and blessings of Allah be upon him) was cupped; Abu Tayba the cupper cupped him; the Messenger of Allah ordered him two sa' of food and spoke to his masters to lighten his tax a little, and they did so."Narrated by al-Tahawi in Sharh Ma'ani al-Athar (4/131)
Ibn Abd al-Barr (may Allah have mercy on him) said: this indicates that the cupper's earning is good; for the Messenger of Allah (peace and blessings of Allah be upon him) fixes no price, no bounty and no counter-value for a vain thing; and this hadith of Anas abrogates what the Prophet (peace and blessings of Allah be upon him) forbade of the price of blood and what he disapproved of the hire of the cupper (al-Tamhid, 2/224; al-Istidhkar, 8/151; Tafsir al-Qurtubi, 6/184).
Muhammad ibn Sahl ibn Abi Hathma transmitted from Muhyisa ibn Mas'ud al-Ansari that he had a boy cupper, called Nafi' and Abu Tayba, who went to the Messenger of Allah (peace and blessings of Allah be upon him) to ask him about his earning; he said: do not approach it. He reported that back to the Messenger of Allah, who said: feed it to your milking camel, put it in its belly.
Ibn Shihab transmitted from Haram ibn Sa'd ibn Muhyisa, from al-Muhyisa, a man of the Banu Haritha, that he had a cupper, the man being named al-Muhyisa, and that he asked the Messenger of Allah, who forbade him to eat of his earning; then he returned and he forbade him, then he returned and he forbade him, then he returned and he forbade him, and he kept coming back until the Messenger of Allah said to him: feed your earning to your milking camel and feed it to your slave. In these athars lies the lawfulness of the cupper's earning.
Al-Tahawi (may Allah have mercy on him) said: "What we mentioned of the Messenger of Allah's (peace and blessings of Allah be upon him) permission in this only took place after he had forbidden it with a general, absolute prohibition, as appears in the first athars; and the Prophet's permitting it to be eaten by the slave or the milking camel proves that it is not forbidden. Do you not see that forbidden wealth, whose consumption is not lawful, cannot be eaten by his slave or his milking camel; for the Messenger of Allah said concerning the slave: 'Feed them from what you eat.' Once it was established that the Prophet permitted Muhyisa to feed his milking camel and his slave from his cupper's earning, that indicated the abrogation of what preceded of his prohibition, and the establishment of its lawfulness for him and for others; and this is the view of Abu Hanifa, Abu Yusuf and Muhammad, and it is also our view: for we see a man hire a man to open a vein for him or to treat his donkey's burr, and that is permitted; hire for that is therefore permitted, and cupping likewise. It was also related after the Messenger of Allah, from Musa ibn Ali ibn Rabah al-Lakhmi, from his father: I was with Abdallah ibn Abbas when a woman came to him and said: I have a boy cupper, and the people of Iraq claim that I eat the price of blood. Abdallah ibn Abbas said to her: they lied; you eat only your boy's earning."
From Rabi'ah ibn Abi Abd al-Rahman: the opinion is that the cuppers had markets in the time of Umar ibn al-Khattab. From Yahya ibn Sa'id al-Ansari: "The Muslims have never ceased to confirm the fee of cupping and do not reject it" (al-Tahawi, Sharh Ma'ani al-Athar, 4/131-132; see Hashiyat Ibn Abidin, 6/52).
Ibn Abd al-Barr (may Allah have mercy on him) said: the hadith of Rafi' ibn Khadij (may Allah be pleased with him) from the Messenger of Allah: "The dog's price is foul, the prostitute's dowry is foul, and the cupper's earning is foul" (Muslim 1568): either the cupper's earning was abrogated from it by the hadith of Anas, that of Ibn Abbas and the consensus, or it bears on detachment (tanzih), as we mentioned; and there is nothing in appending the dog's price and the prostitute's dowry to it that implies the prohibition of the cupper's earning; for a thing may be appended to another while its ruling differs (al-Tamhid, 2/226-227; Sharh Sahih al-Bukhari of Ibn Batal, 6/409-410; al-Bayan wa-l-Tahsil, 17/278).
Al-Mawardi (may Allah have mercy on him) said: al-Shafi'i said: there is no harm in the cupper's earning. If it is said: what then is the meaning of the Prophet's prohibition to the one who asked him about his earning, and of his urging him to have it eaten by his slave and his milking camel? It is answered: it has only one meaning: earnings have the noble and the lowly; the cupper's earning was lowly, and he wished him to purify his soul from lowness, given the multitude of earnings more beautiful than it; when he increased it, he ordered him to feed his milking camel and his slave from it, to purify him, not to forbid him. Abu Tayba had cupped the Messenger of Allah, who ordered him a sa' of dates and ordered his family to lighten his earning; had it been forbidden, the Messenger of Allah would not have given it: he only gives what is lawful to give, and the taker owns it.
It is related that a relative of Uthman came to him and asked him about his livelihood; he mentioned the income of a cupper or of two cuppers; he said: "Your earning is filthy," or: "impure," or: "lowly," or a word like it.
Al-Mawardi said: know that the need for earnings is the call of that upon which Allah created creatures, namely the need for food, drink and clothing for oneself and for those one must support, of kin and companions. The origins of the familiar earnings are three: agriculture, trade and craft. It befits the earner therefore to choose for himself the purest, according to the word of Allah:
"O you who believe, spend from the good things you have earned"
Surah Al-Baqarah, 267
And it is related from the Prophet (peace and blessings of Allah be upon him): "Whoever does not care where his food comes from, nor where his drink comes from, Allah does not care by which gate of the Fire He enters him."
People differed over the purest: some said: agriculture, and it is the most fitting in my view, for in it man relies upon Allah in His giving and submits to His decree. Others said: trade is the purest, and it is the closest to al-Shafi'i's school, by Allah's explicit declaration in His Book:
"And Allah has permitted trade"
Surah Al-Baqarah, 275
And by the emulation of the Companions (may Allah be pleased with them) who earned through it. Others said: craft, for man earns in it by the toil of his hands. It is related from the Prophet (peace and blessings of Allah be upon him): "Among sins there are some that neither fasting nor prayer expiate, but the sweat of the brow in seeking a craft expiates them."
As for agriculture, it enters into no prohibition or disapproval, and this is the first thesis on its being the purest of earnings. As for trade, it divides into three parts: the lawful, namely valid sales; the forbidden, namely corrupted sales; and the disapproved, namely fraud and deception. As for craft, it divides into three parts: the lawful, namely what is permitted of works without filth, like writing, trade and building; the forbidden, namely what is prohibited of works, like images and amusements; and the disapproved, namely what involves touching impurity, like the cupper, the butcher, the sweeper of courtyards and the carriers of filth. The explicit text exists for the cupper, who is the origin of his likes; the text is what Ma'mar transmitted from al-Zuhri, from Haram ibn Muhyisa, from his father: he asked the Prophet about the cupper's fee and he forbade him; he complained of their need, and he said: feed it to your milking camel and feed it to your slave. Some companions of hadith drew from it the prohibition for free men and the lawfulness for slaves; for the Prophet forbade the masters, not the slaves, and they relied on Rafi' ibn Khadij's narration: "The cupper's earning is foul, the prostitute's dowry is foul, and the dog's price is foul"; having described it as foul and joined it to the forbidden, it would be forbidden.
The proof of the falsity of that view is what Ali ibn Abi Talib related: the Prophet was cupped and ordered me to give the cupper his fee. And Anas transmitted that Abu Tayba cupped the Messenger of Allah, who ordered him a sa' of dates and ordered his clients to lighten his earning. Jabir said: his earning was three sa' of dates per day, and they lightened each day a sa'. The face of the proof: if his earning were forbidden to the taker, its payment would be forbidden to the giver; yet the Prophet judged lawful ordering it to be paid to him: taking is therefore permitted. If it is said: Abu Tayba had cupped him voluntarily, seeking nearness to Allah through the service of the Messenger of Allah, and for that he drank his blood; the Prophet said to him: "Allah has made your body forbidden to the Fire"; and what the Prophet gave him was a consolation, not his fee; there are two answers: the first: he gave him only in return for his work: it becomes a counter-value that escapes the ruling of consolation. The other: Abu Tayba was a slave: his volunteering through his work is not valid, and the Messenger of Allah does not make lawful his volunteering; and because people have never ceased, in the time of the Messenger of Allah and his caliphs (may Allah be pleased with them) down to our time, in all lands, to earn through it, without any man of good will rejecting it for Allah: the consensus has thus formed and the disagreement lifted; and because need calls to it and necessity presses upon it: man cannot cup himself when he needs it; and what has such a standing the Law does not forbid, because of the harm it would bring upon creatures; the Messenger of Allah said: "No harm and no requital of harm"; and because every earning lawful for slaves is lawful for free men, like the other earnings.
As for the answer to his words: "The cupper's earning is foul": the name of foul (khubth) sometimes covers the forbidden and sometimes the lowly; as Allah says: "and do not aim at the foul of it to spend," meaning the lowly; and His words after: "You will not take it except with contemptuous eyes" (Surah Al-Baqarah, 267): it is therefore referred to the lowly, not the forbidden, according to what we said; and it does not lead to the forbidden through their sharing the ruling of prohibition: for when it is joined to what is forbidden to free men and slaves, whereas this is not forbidden to slaves, it may be that it is not forbidden to free men.
Once it is established that it is not forbidden, it is disapproved; and our companions differed over the cause of its disapproval in two ways: the first: for touching impurity, according to the word of Allah:
"And abandon abomination"
Surah Al-Muddaththir, 5
On this basis, the earning of everyone who touches impurity is disapproved: the sweeper of latrines, the tanner, the butcher. The holder of this view differed: does the blood-letter's earning count among them? In two ways: one: it counts among them, for he touches the impurity of blood. The other face, which is Abu Ali ibn Abi Hurayrah's view: his earning is not disapproved, for it is connected to the science of medicine: he seldom touches the impurity of blood. As for the circumciser: his earning is disapproved like the cupper's, indeed more so by touching the 'awra; and the disapproval is restricted to touching impurities, and is lifted for whoever does not touch them, like the fisherman and the tanner. The other face: the disapproval of the earning for its lowness, and this is the apparent meaning of al-Shafi'i's school, which divided earnings into lowly and fine. It is related that a relative of Uthman ibn Affan (may Allah be pleased with him) came to him and asked him about his earning; he said: "The income of a cupper or of two cuppers"; he said: "Your earning is lowly," or: "filthy." On this basis, the earning of the fisherman, the tanner, the barber and the funeral crier is disapproved.
On this basis, the earning of the cuppers has been a matter of disagreement, in two ways: one: it is disapproved, lowly; for he sees the 'awra and earns without measure. The other face: his earning is not disapproved; for he does not touch a work, he can lower his eyes from the 'awra, and he does not earn by touching them: if he lets his gaze loose, he becomes like the common people. The likes of what we mentioned fall under this; and all of this is disapproved for free men.
As for slaves, there are two aspects: one: it is disapproved for them as for free men; this is the view of the majority. The other: it is not disapproved for them; for they are lower than free men, so let them prepare for the lowest earning; if their masters take their earning, it is disapproved for them to eat it, but not to feed it to their slaves and their beasts; for the Prophet said to Muhyisa, when he asked him about it: "Feed it to your milking camel and feed it to your slave." And Allah knows best (al-Hawi al-Kabir, 15/152-156).
Ibn Qudama (may Allah have mercy on him) said: and because it is a lawful benefit whose doer is not required to be of the people of nearness: hire upon it is therefore permitted, like building and sewing; and because people need it, and one does not find everyone volunteering for it: hire upon it is permitted, like suckling. The Prophet's words on the cupper's earning: "feed it to your slave" are a proof of the lawfulness of his earning; for it is not possible to feed one's slave what is forbidden to eat; slaves are human beings: what Allah forbade is forbidden to them as to free men. And restricting that to what was given him without hire is arbitrariness without proof; and naming it a foul earning does not imply prohibition: the Prophet named garlic and onion two foul things while permitting them. The Prophet only disapproved of that for the free man, to purify him from the lowness of this craft; and in Ahmad's narrations there is no explicit text forbidding the cupper's earning or hire upon cupping; he only said: we give him as He gave, and we say to him what the Prophet said when he was asked about eating it and forbade it: feed it to the milking camel and the slave. And that is the meaning of his words in all the narrations; it is not explicit in prohibition, but it contains a proof of its lawfulness, like the Prophet's word and act; and the gift to the cupper is a proof of lawfulness: he does not give what would be forbidden to him, he who taught the people and forbade them forbidden things: how would he give it to them while enabling them of it? And his order to feed the slaves from it is a proof of lawfulness: his prohibition of eating it must therefore be referred to disapproval, not prohibition; likewise Imam Ahmad's words: he did not depart from the Prophet's word and act: he only intended to follow him; and all the imams who disapproved of it, their words must be referred to this, and there is in the issue no one holding prohibition.
This being established, it is disapproved for the free man to eat the cupper's earning, and learning the craft of cupping and hiring oneself for it are disapproved, because of the reports attached to it and its lowness: entering it was disapproved, like sweeping latrines. On this basis the disapproval of the imams we cited is referred: by combining the reports and reconciling the evidences. And Allah knows best (al-Mughni, 5/413-414; al-Kafi, 2/302; Majmu' al-Fatawa, 30/192).
Ibn al-Qayyim (may Allah have mercy on him) said: the Prophet's gift of the fee to the cupper does not contradict his words: "The cupper's earning is foul"; he did not say that the giving is foul; but the giving is sometimes obligatory, sometimes recommended, sometimes lawful; it is foul with respect to the taker, and foul with respect to its eating: it is a foul earning; and prohibition does not follow from it: the Prophet named garlic and onion two foul things while making their eating lawful. And it does not follow from the Prophet's gift of the fee to the cupper that its eating is lawful, still less that it is good: he said: "I give a man a gift and he leaves tying it to his arm like a brand." The Prophet used to give to those whose hearts were reconciled, from the zakat and spoils, despite their wealth and lack of need, so that they would give of Islam and obedience what they must give without the gift; and it is not lawful for them to suspend their giving upon taking: rather they must initiate giving without counter-value. This is a known origin of the foundations of the Law: the contract or the giving may be lawful, recommended or obligatory on the part of one of the two, disapproved or forbidden on the part of the other: the giver must give, and the taker is forbidden to take. In sum, the foulness of the cupper's fee is of the kind of that of eating garlic and onion: but the latter is foul in smell, and this one is foul in its earning (Zad al-Ma'ad, 5/792).
The jurists of the four schools agreed that the physician, if he is ignorant of the rules of medicine, or not skilled in it, and treats a sick person destroying him by his treatment, or introducing a defect into him; or if he knows the rules of medicine and falls short in his treatment, with destruction or defect resulting; or if he knows the rules of medicine without falling short, but treats the sick person without his permission, like one who circumcises a child without his guardian's permission, or an adult by force against him, or while asleep, or makes a sick person drink a remedy by force against him, with destruction and defect resulting; or treats with a permission not legally valid, coming from a child, as if the permission concerned cutting the hand, the arm, a cupping or a circumcision, and it leads to destruction or defect: in all of this he guarantees what results from it (Jawahir al-Aklil, 2/296; al-Sharh al-Kabir, 6/371-372; Asna al-Matalib, 2/427; al-Mughni, 7/468-469).
Ibn al-Mundhir (may Allah have mercy on him) said: they agreed that the circumciser's cutting, if he errs and cuts the glans or part of it, falls upon him in what he erred in, and his 'aqila (the solidarity group) pays its compensation (al-Ijma', no 697).
Ibn al-Mundhir said: they agreed that the physician, if he does not exceed the limits, that is, what is known to him of the canon of medicine, does not guarantee (al-Ijma', no 696).
Ibn Abd al-Barr (may Allah have mercy on him) said: the scholars agreed that the physician who exceeds what he was ordered guarantees what perishes through that exceeding (al-Istidhkar, 8/63).
Imam Ibn Rushd the grandson (may Allah have mercy on him) said: "There is no disagreement: if he is not of the people of medicine, he guarantees, for he is a transgressor" (Bidayat al-Mujtahid, 2/418).
The Hanafis also said: if the practitioner of vein-opening (fasd) incises with the permission of the one bled, or the veterinarian incises with the permission of the beast's owner without exceeding the usual place, there is no liability upon him for what is damaged by it; for one cannot guard against the transmission (saraya), which rests on the strength or weakness of the temperament, which he himself does not know: it therefore cannot be restricted by safety, and this consideration falls. If he exceeds, he guarantees, for that was not permitted to him; and this when the incision takes place with the permission of the beast's owner; without his permission he is liable, whether he exceeds the usual place or not.
Language notes: fasd is the opening of a vein; bazzagha, for the cupper and the veterinarian, means to incise, to cut; and al-mibzag is the instrument of incision. It is said: the wound reached the soul (sarayat), when the wound affects it unto death.
Whoever orders a circumciser to circumcise a boy, and the circumciser cuts the glans and the boy dies of it: half of the indemnity (diya) falls upon the circumciser's 'aqila; for the death took place through two acts: one permitted, the cutting of the foreskin; the other not permitted, the cutting of the glans: half the liability therefore falls. If the boy heals, the cutting of the skin, which is permitted, is as if it had not been, and the cutting of the glans, which is not permitted, brings the full liability of the glans, which is the diya; for the glans is a limited organ, without a second in the person: it is therefore reckoned at the equivalent of a life, like the cutting of the tongue.
Al-Zayla'i (may Allah have mercy on him) said: this is one of the most astonishing issues: the greater indemnity falls through healing, and the lesser through death (al-Hidaya, 3/345; al-Jawhara al-Nayyira, 3/343; Tabyin al-Haqa'iq, 5/137; Hashiyat Ibn Abidin, 6/96; Fath al-Qadir, 7/206; Majma' al-Damanat, p. 146; al-Lubab, 1/481; al-Hindiyya, 4/499).
Ibn Nujaym the Hanafi (may Allah have mercy on him) said: "The cupper cut flesh from the eye, while not being skilled, and the eye became blind: half the diya falls upon him" (al-Ashbah wa-l-Naza'ir, p. 290; al-Durr al-Mukhtar, 6/567). His words "he was not skilled" mean that he was ignorant of that task he undertook; he then established its ruling: the liability of half the diya falls upon him; for the eye is among the paired organs in the human body: the full diya is due for the loss of both eyes, and half for the loss of one, as is the case in our issue.
Ibn Abidin (may Allah have mercy on him) said: in al-Qunya, Muhammad Najm al-Din was asked about a little girl who fell from a roof, and her head swelled; many surgeons said: if you cut her head open she dies; one of them said: if you do not cut it open today she dies, and I will cut it open and cure her; she died after a day or two. Is he liable? He pondered for a long time, then said: he does not guarantee if the incision took place with permission, and it was customary, and it was not excessive, going outside the norm, that is, far from the established rules of the craft, which vary with medical progress and technical mastery. He was told: they only permitted it because it is a treatment of the same kind. He said: that does not stand in the way: the permission itself is taken into consideration. He was told: and if this surgeon had said: if she dies of this wound, I am liable, would he be liable? He said: no. Ibn Abidin said: the condition of liability was therefore not taken into account; for a condition imposed on a trustee is null, according to the fatwa (al-Durr al-Mukhtar, 6/567-568; Majma' al-Damanat, p. 147).
In the Hanafi view: if a cupper is hired to extract a tooth and he extracts it, and the owner of the tooth says: I did not order the extraction of this one, the latter's word prevails, and the extractor guarantees the arsh of the tooth; if he extracts the one he was ordered to and another tooth attached to it comes out with it, he does not guarantee. In Mukhtasar al-Tahawi: whoever is hired to cup a slave or to incise a beast, and does so damaging it by his act, there is no liability upon him; for the origin of the act was permitted: what follows from it is therefore not liable upon him, unless he exceeds the limits: then he guarantees. Likewise, if he has in his keeping a hand to be amputated, and he hires a man to cut it and he dies of it: no liability (Mukhtasar al-Tahawi, p. 129).
The Malikis said: the physician, if he exercises his craft out of ignorance of medical science and it leads to destruction, guarantees; likewise if he knows and falls short in the treatment: like one who intends to extract a tooth and extracts another by mistake, or who exceeds, without intending it, the known limit in medicine among the knowledgeable, like the circumciser's hand slipping, or who gives a sick person a remedy unsuited to his disease believing it suits him, his belief being mistaken: he guarantees; and the liability weighs upon his 'aqila, except what is below a third, which falls on his wealth.
No reckoning is exacted from the ignorant physician because it is supposed he did not intend harm, but the sick person's good or the hope of it; if he intended his harm, reckoning would be exacted from him; and the origin is absence of enmity if it is imputed to him. As for one who does not fall short and knows medicine, doing what suits the disease, but a defect or destruction results: no liability upon him, but pardon. The physician also guarantees if he treats without a valid permission: without permission in the first place, like one who circumcises a child by force against him, or an adult while asleep, or makes a sick person drink a remedy by force, destruction resulting; or with a permission not legally valid, like one who treats a child or a madman with their permission: he guarantees what his act causes; for their permission is not legally valid. Likewise if he opens a vein of a slave, cups him or circumcises him relying on his permission, and a defect or destruction results: he guarantees; for his permission is not legally valid (Jawahir al-Aklil, 2/296; al-Sharh al-Kabir, 6/371-372; Sharh Mukhtasar Khalil, 8/110-111; Manh al-Jalil, 9/361; al-Fawa'id al-Dawaniyya, 2/339; Asna al-Matalib, 2/427; al-Mughni, 7/468-469).
Al-Dasuqi (may Allah have mercy on him) said: if the circumciser circumcises a child, or the physician gives a sick person a remedy, or cuts something from him, or cauterizes him, and he dies of it, there is no liability upon either of them, neither on his wealth nor on his 'aqila; for it involves deception: it is as if his owner himself had exposed him to what befell him; and this when the circumciser or the physician is of the people of knowledge and did not err in his act. If he erred in his act, though being of the people of knowledge, the diya weighs upon his 'aqila. If he is not of the people of knowledge, he is punished. As to where the diya falls, on his 'aqila or on his wealth, there are two views: the first is Ibn al-Qasim's; the other Malik's, and it is the preferred; for his act is deliberate, and the 'aqila does not bear the deliberate (Hashiyat al-Dasuqi 'ala al-Sharh al-Kabir, 5/375-376).
Al-Nafrawi the Maliki (may Allah have mercy on him) said: "If he treats the sick person with medicine and he dies of his disease, nothing falls upon him, unlike the ignorant or the one who falls short: he guarantees what results from his act" (al-Fawa'id al-Dawaniyya, 2/339). He thus considered ignorance of the act a cause of liability for the harm resulting from it.
It is said in al-Mudawwana, concerning the veterinarian who lays the beast down and it is damaged: nothing falls upon him if he does with it what the veterinarian does and lays it down as the veterinarian lays down beasts; if he does otherwise, he guarantees according to Imam Malik (al-Mudawwana al-Kubra, 11/497).
The Shafi'is: al-Qalyubi the Shafi'i (may Allah have mercy on him) said: "The physician's condition is that he be skilled, meaning his errors be rare; if he is not skilled in the science in what is apparent, experience suffices; if it is not so, the contract is not valid, he guarantees and returns what he took of fee or otherwise" (Hashiyat Qalyubi, 3/79).
They said: whoever cups or opens the veins of another with a valid permission, like a free, legally responsible person who says to the cupper: cup me or open my veins, and he does so and destruction results: he does not guarantee what follows from it; otherwise no one would do it; this, if he did not err: if he erred, he guarantees, and his 'aqila bears it, as al-Shafi'i explicitly stated for the circumciser. Ibn al-Mundhir said: they agreed that the physician, if he does not exceed, does not guarantee.
If the circumciser exceeds by a mortal wound, as if he circumcises at an age the body cannot bear, out of weakness, or in intense heat or cold, and he dies: retribution falls upon him if he knew the body could not bear it; for he exceeds by a mortal wound, absolutely not permitted in that state. If he believes the body can bear it, as if the people of expertise told him it bears it, and he dies: no retribution, the exceeding being absent, but the diya of quasi-intentional killing is due, except the father and the ascendant: when he circumcises him at an age the body cannot bear, no retribution falls upon him because of the weakness, but an aggravated diya weighs upon his wealth, for it is pure intent.
The master, for the circumcision of his slave, incurs no liability; and the Muslim, for the circumcision of an infidel, incurs no retribution.
If the body bears it and a guardian circumcises him and he dies: no liability upon him, according to the more correct view; for it is necessary, and doing it earlier is easier than delaying it, given the benefit in that. Another view: he guarantees; for it is not obligatory in the state as it is: it is therefore not permitted, except on condition of the safety of the outcome. The father, the grandfather, the ruler, the custodian and the guardian are the same; and one who is not a guardian guarantees absolutely, for he exceeds by the mortal: reckoning is exacted from him, unless he intended by it the glory of boasting (shi'ar): retribution is then not conceivable, for it involves doubt in the exceeding. The pubescent interdicted for prodigality is assimilated to the child (Mughni al-Muhtaj, 5/532-534; Rawdat al-Talibin, 10/182, ed. al-Maktab al-Islami; al-Siraj al-Wahhaj, 1/538).
If the physician anesthetizes the sick person without testing his sensitivity to the anesthetic, and the sick person dies, the physician guarantees (Takmilat al-Majmu' of al-Muti'i, 15/350-355). If the physician operates on the sick person's eye while the latter suffers from high blood pressure, and the sick person loses his eye or dies, he guarantees; for it falls to the physician not to undertake the operation as long as the blood pressure is not moderate (same source).
Imam Ibn Hajar al-Haytami (may Allah have mercy on him) was asked about a sick man who sent for a physician; he came to him and ordered him a draught; he drank it and suffered great exhaustion from it, to the point of nearing death; then Allah granted him some recovery, then the illness intensified. He said to his heirs: I am not yours, and the cause is the draught that so-and-so made me drink. Then he died. What is the ruling? He answered: "Neither retribution nor diya upon the mentioned physician for the mere fact that he ordered the mentioned sick person to drink the mentioned medicine. And Allah knows best" (al-Fatawa al-Fiqhiyya al-Kubra, 4/218).
The Hanbalis: it is said in al-Mughni of Ibn Qudama (may Allah have mercy on him), issue: "No liability upon a cupper, a circumciser or a physician when the skill of their craft is known and their hands have not erred." The summary is that if they do what they were ordered, they do not guarantee, under two conditions: the first: that they be skilled in their craft, with insight and knowledge; for otherwise cutting would not be lawful to him: if he cuts in that state, he is a doer of the forbidden and guarantees the transmission, like the initial cutting. The second: that their hands not err by exceeding what is to be cut. When these two conditions are met, they do not guarantee; for they cut with permission: they therefore do not guarantee the transmission, like the imam's cutting of the thief's hand, or a lawful permitted act, resembling what was mentioned. But if he is skilled and his hand errs: as when the cutting of the circumcision exceeds to the glans or part of it, or he cuts somewhere other than the place of cutting, or cuts a vessel of a man exceeding it, or cuts with an instrument whose pain is great, or at a time when cutting is unsuitable: in all of this he guarantees; for it is a destruction whose liability does not vary with intent or mistake: it resembles the destruction of property; and because it is a forbidden act: he therefore guarantees the transmission, like the initial cutting; the same is the ruling in the disputed wound, for the one liable to retribution and for the one who cuts the thief's hand. It is al-Shafi'i's school and that of the people of opinion, and we know of no disagreement in it (al-Mughni, 5/312; al-Sharh al-Kabir, 6/124-125; Sharh al-Zarkashi, 2/188; al-Mubdi', 5/110; al-Insaf, 6/47; Manar al-Sabil, 2/228-229).