Musa Furber

One of the fiqh books I am work­ing on is Ibn Daqīq al-‘Eid’s Tuḥ­fat al-Labīb, which appears to be the ear­li­est com­men­tary on Abū Shu­jā‘ al-Aṣfahānī’s Ghāy­at al-Taqrīb (trans­lat­ed as The Ulti­mate Con­spec­tus). His com­men­tary pro­vides evi­dence for most of the issues giv­en in the book. He fre­quent­ly presents alter­na­tive opin­ions with­in the school, dif­fer­en­ti­at­ing between the opin­ions of Imam al-Shāfi‘ī (a “qaul”), and the opin­ions of the “col­leagues” (the “aṣḥāb”) – ear­ly major Shāfi‘ī schol­ars (a “wajh”). Occa­sion­al­ly, he presents par­al­lel paths of trans­mit­ted alter­na­tive opin­ions with­in the school (each path is a “ṭarīq,” which com­bine to form “ṭuruq”). There are even a few places where Imam al-Shāfi‘ī gives dif­fer­ent answers to sim­i­lar issues, and each of those answers will be trans­ferred to the oth­er and an addi­tion­al opin­ion will then be extract­ed. The fol­low­ing exam­ples show many of these things in action.

Example #1

The first exam­ple comes from the sec­tion on col­lat­er­al, sec­tion 7.6 in The Ulti­mate Con­spec­tus and The Acces­si­ble Con­spec­tus. The exam­ple shows how Shafi’i schol­ars tried to rea­son through an issue for which there is no tex­tu­al evi­dence and a few of the tech­niques they used while solv­ing this prob­lem.

If the item put up for col­lat­er­al is in the hand of the one guar­an­tee­ing it, al-Shāfi‘ī said in the chap­ter on col­lat­er­al that trans­fer of pos­ses­sion does not occur except with per­mis­sion. He said in the chap­ter on gifts that if some­one gifts him an item which is in his hand, it becomes with­in his pos­ses­sion with­out per­mis­sion. The col­leagues [aṣḥāb] dis­agreed along two paths [ṭuruq].

The first [path] is that there are two qauls via trans­fer and extrac­tion for each issue. The first [qaul] is that nei­ther one is in need of per­mis­sion to take pos­ses­sion since it is a con­tract that does not need a new action. The sec­ond [qaul] is that it is in need [of per­mis­sion]. (It is the sound opin­ion.) This is because it is a con­tract that needs per­mis­sion to become bind­ing, so per­mis­sion is need­ed for tak­ing pos­ses­sion – just as though the item were not in his hand.

The sec­ond path is affirm­ing Imam al-Shāfi‘ī’s two opin­ions accord­ing to their appar­ent mean­ings. The dif­fer­ence between the two is that a gift is a con­tract which trans­fers own­er­ship, so it is not in need of per­mis­sion due to its strength; while putting col­lat­er­al does not remove own­er­ship, so it is in need of per­mis­sion due to its [inher­ent] weak­ness.

Example 2.

The sec­ond sam­ple comes from the sec­tion con­cern­ing assign­ment of debt, sec­tion 7.9. This par­tic­u­lar exam­ple con­cerns the fourth con­di­tion (d). I have reword­ed it here to sim­pli­fy things.

Sup­pose that A & B owe 1000 dirhams to C.

A & B owe an equal por­tion, and each one has guar­an­teed the other’s debt.

C decides to assign the debt of 1000 dirhams to them both so that he can demand the 1000 dirhams from whichev­er of them he wish­es.

There are two opin­ions con­cern­ing the valid­i­ty of this trans­ac­tion.

The first is that it is valid, since C receives noth­ing except the amount he is owed.

The sec­ond is that it is not valid, since through assign­ment of debt C ben­e­fits by hav­ing an increase of whom he can demand what he is owed. And this increase is not per­mit­ted.

Ibn Daqīq al-‘Eid didn’t indi­cate which of the two opin­ions he pre­ferred. Accord­ing to my notes, nei­ther did Imams al-Rāfi‘ī and al-Nawawī.

* * *

While I do not rec­om­mend this text for learn­ing relied upon opin­ions accord­ing to the lat­er Shāfi‘ī school, it is a great way for get­ting a taste of how Shāfi‘ī jurists do fiqh.

For more Shāfi‘ī fiqh, please see The Ulti­mate Con­spec­tus and its com­men­tary The Acces­si­ble Con­spec­tus, sold online and in fin­er book­stores.