General Rules of Jurisprudence Lesson 26

1. General Rules of JurisprudenceLesson 26 The rule of “control” SULTANATE or SULTANANH part one: The rule The evidence and discussion The possible meanings of this rule

2. The rule: • People have the control on their belongings (ANNAAS MOSSALLATOONA ALAL UMWAALEHIM. • That means that every owner of a thing has the freedom to do whatever he wants to do with it, in the limits of the religious laws, so he can sell, gift, rent, and so on, as long as there is no prohibition from the religious laws. And the others cannot do anything with the owner’s belonging without his permission.

3. The evidence & the discussion • 1st evidence: The practice (SEERAH) of intellectuals (OQALA) and the practice of the companions of the Infallibles (AS) (MOTASHAREA’). • The practice of the OQALALA or the intellectuals: It is obvious that the intellectuals respect the freedom of the ownership of the owner to his belonging and they do not interfere in his dealings with it, this practice of the intellectuals existed in the time of the Infallibles (AS) and they did of condemn it, so their acknowledgement is proven. (yes the infallibles (AS) kept some types of religious limits on the dealings) • The companions of the Infallibles (AS) they practiced such practice and their practice reflects the teachings of the Infallibles (AS) directly, therefore such does not require their acknowledgement.

4. The narrations: A living person has the right to do whatever with his belongings • MOWATHAQA (the trusted) narration of SOMA’A: “ I asked ABO ABDILLAH (AS) about a gift of a father to his son, so he (AS) said: If he ( he father) was healthy (not terminally sick), then it is his belonging he can do what ever he wants with it, and if he was sick (death or terminal sickness) then (that gift) is not correct ”. • The apparent meaning of (do what ever he wants with it) indicates that he has the right or the freedom to do whatever and it is not specifically for the gift of a father to his son, so the indication is general. • There are other narrations and verses, but narrations are weak and some verses and narrations are specific and not general.

5. Other indications: Problems in generality • EJMAA or the consensus of the scholars which is claimed to be a supportive evidence for this rule is not valid because it is supported by stronger evidence such as the practice of the intellectuals and the companions. • The verse: NISA 4:29 Believers, do not consume your wealth among yourselves in falsehood, except there be trading by mutual agreement between you. And do not kill yourselves. Allah is the Most Merciful to you. • This verse indicates that there should be mutual agreement from both sides in transferring their belongings to each other in order to validate the trade contract. So a person can not buy or sell something which is not his without the permission of that thing’s owner. • This verse is specifically for the trade.

6. The verse of Dowry • NISA 4:4 Give women their dowries freely, but if they are pleased to offer you any of it, consume it good and smooth. • This verse specifically indicates the issue of the dowry (gift of the marriage contract given to the woman as a token of husbands financial obligation.) that a husband cannot use it without their consent.

7. The famous narration: • “The wealth of Muslim is not permitted unless if it was by his consent” • The narrators in the link (SANAD) are unknown and some narrated it as MORSAL unlinked so the hadeeth is weak. • Other narrations are not enough to prove the generality of the rule, yes those prove some specific situations. • Conclusion: Based on all that the important supporting evidence for this rule is the practice or the lifestyle of the intellectuals and the companions, and the MOWASAQA of SOMAA which indicates the control in his healthy life.

8. The possible meanings of this rule • The author of JAWAHIR: The rule indicates absolute freedom on how ever the owner wants to sell or gift or rent, regardless of the details of the conditions and laws of trades and transactions, or transfer of his belonging from him to others, such as reciting in ARABIC and so on so if he decides to do so then he has the full right and freedom to do so, • From this rule he concluded the permission and the validity of MOATAAT sale بيع المعاطاة (explain).

9. Sh. ALANSARI author of MAKASIB • This rule indicates the permission or the freedom to initiate a trade or a transaction with observing the details of the conditions and rules of such trade or transfer or transaction, that means a person has the freedom to do what ever type of transaction or transfer of his belonging or property as long as he is observing the detailed conditions of it. • So with this meaning the validity of MOATAAT cannot be indicated.

10. AKHOND ALKHORANSANI: author of KIFAYAH • It has a wider indication (negation or removal of the HIJR or legal restrain from using his belonging), it does not give any indication of the freedom of transfer or transaction of trade or gift or rent (because those have their laws, conditions and rules) , it only indicates that an owner is not restricted limited from doing any thing legal with his belonging, it does not give any specification to the trade or transaction, as long as his actions or transactions are legal and permitted with his belongings then he has the freedom to do any thing with it. • It indicates no requirement for permission to transfer or do what ever is legal . • The rule is silence from indicating any thing more than permission.

11. The ERAWANI (not the author of this book) • More narrower indication: It does not have any indication of freedom or permission to do the trade and transaction or transferring his belonging even with the conditions and laws, this law gives permission to non trade and non transferable actions, such as permission to stitch his cloth, or to move his belonging from one place to another. • The discussion of these four opinion will be in the next lesson.