General Rules of Jurisprudence Lesson 31

1. General Rules of JurisprudenceLesson 31 Rule of “the responsibility of a hand” (ALA ALYAEDD)على اليد Part two The law of title or the law of action The Guarantee of the benefits and labor The exact or the replaced The rule includes both type of ignorant Exemption of the hand of favor and hand of trust

2. The law of title or the law of action • HOKM WADHEE or TAKLEEFI: Are we trying to prove by this rule that every person must return what ever he touched from a thing which does not belong to him (TAKLEEFI), or we are trying to prove the liability on that person who touched (WADHEE)? There is no doubt that this rule indicates a person must completely return the thing which is in his hand and does not belong to him, to its owner. And the word hand is nothing but a metaphor, because usually a person takes over a thing by his hand.

3. ALAL YEDD: ON THE HAND? • On the hand the return (action) • On the hand the liability (title) • The scholars differed, the appropriate is to look at the evidence, and that is the lifestyle of the intellectuals, who besides the return also put the liability on any hand which takes over something which does not belong to it, and based on this the owner can return to any hand from the hands which took over his belonging, even if one of them did not damage it. Because once a hand takes it becomes liable to what might happen to it.

4. The Guarantee of the benefits and labor • Does this rule include the guarantee (DHAMAAN) of the benefits and labor or not? • Yes it does. A person used the labor of a tailor to make a dress with the usurped fabric, the tailor did not know, now the usurper will guarantee the fabric, the damage to it and the labor of the tailor also. • Some one took a car of some one without the owner’s permission, so does the usurper take the liability of the consumed benefit and the non consumed? • Non consumed: The car was taken but not used, the usurper will pay for the days the car was in his possession though it was not used but he will be charged as if had rented the car. • Consumed benefits: The stolen care was used and such use has a value, like the usurper used it to drive one place to another, even though the driven distance was small but the point is that the car was used. So in this case he will pay as the rented car and for the mileage he drove.

5. The exact or the replaced • MITHLE (exact) or QEMEE (cost replacement ): The rule indicates that the usurper must return the same item taken but if damaged then the rule also indicates the following liabilities: • MITHLEE is the exact replacement of the damaged item, and if the same or exact replacement does not exist, the usurper is responsible for QIMI or the cost instead. • Compensation due to the obstacles (HAYLOOLAH), for example the stolen ring fell into the sea, it exists but there are obstacles to get it out, hiring the divers, extra waiting time to return it, so the wages to hire the divers is obligatory on the usurper, but not the temporary replacement of a ring either similar (MITHL) or exchange (QEEMAH) which after he gives the original ring back to the owner he can return from the owner his temporary replacement. • If the ring or the thing was completely damaged, then the usurper will give the QEEMA value of the ring or the thing at the time of giving the cost of the ring and not the value on the day of theft.

6. The rule includes both type of ignorant • Some might say only adult and law knowing person is responsible, but the guarantee is a title rule and not a rule of action, so it becomes fixed on a person regardless of his age or his knowledge about the rule, (legitimate child or opposite is fixed on the child regardless), therefore it includes the small and the ignorant. So the child is not responsible of returning but he is liable from his wealth, and his guardian will pay from the wealth of the child. • The same is for the ignorant who thought that the thing was his and he found out it was not his, so he will take the liability of the damage. (OQALA)

7. Exemption of the hand of trust • The SEERAH of OQALAA exempts the hand of the trust, and does not hold it responsible from the beginning. Except in one case that he was abusive to the trust by being extremely careless. • There are some narrations also support this exemption, such as the SAHEEH of MASADAH son of ZIYAAD, who narrates from JAFER son of MOHAMMAD, through his father (AS): “Verily the messenger of Allah had said: You should not accuse the one you have entrusted him…), the word accusation indicates that it a claim, and a claim requires evidence, and such only happens if the evidence of abuse and carelessness does not exist. • The rule includes both types of the trusts, personal (MALIKIYA) and the religious (SHARIYA) such as a glean or a picked up (LOQATAH), which is picked up by the religious permission, and the one who picks it up to secure it and return it to its owner is considered religiously a trusted (AMEEN).

8. Exemption of the hand of favor (EHSAAN) • لَّيْسَ عَلَى الضُّعَفَاء وَلاَ عَلَى الْمَرْضَى وَلاَ عَلَى الَّذِينَ لاَ يَجِدُونَ مَا يُنفِقُونَ حَرَجٌ إِذَا نَصَحُواْ لِلّهِ وَرَسُولِهِ مَا عَلَى الْمُحْسِنِينَ مِن سَبِيلٍ وَاللّهُ غَفُورٌ رَّحِيمٌ {91} • [Shakir 9:91] It shall be no crime in the weak, nor in the sick, nor in those who do not find what they should spend (to stay behind), so long as they are sincere to Allah and His Messenger; there is no way (to blame) against the doers of good; and Allah is Forgiving, Merciful; • The hand of favor is not considered liable unless if there was an evidence of abuse and carelessness, and the hand of favor is one of the manifestations of the hand of trust. • Any hand on a thing which does not have the permission of the owner is considered YED AADIYA or ODWANIYAH (aggressive ), and is responsible, yes the hand of trust and favor are not YEDD ODWANIYAH.

9. Others causes of liability: DHAMAAN Other than the rule of on the HAND, there are other causes of liability and guarantee such as: • ITLAAF (intentional damage): The narration which supports this rule is a week narration but, but this rule is also supported by the lifestyle of the intellectuals (SEERAH OF OQALA) • A labor agreement or contract between two, so if the worker does his work as required then the client is responsible for paying the wages as agreed to the worker. • GAHROOR :Deception or fraud: A person who deceives another person, and that person ends up in to a situation of damage or loss , then the deceiver is responsible for that loss or damage. If a the deceiver gives a person food of some one else and that person eats it (damage) then the owner returns to the eater based on the rule of ITLAAF (damage), and the eater refers to the deceiver for the rule of deception (GHOROOR)

10. 4-EQDAAM or undertaking the DHAMAAN • Some scholars mentioned that if a person undertakes the liability, then he is responsible too, such as a person puts his belonging purposely in the hands of other, so if a purposely damage happens to his belonging by that other person, then it should be from the account of the owner and not the other person, though the damager was careless. This rule was used in the case of an owner who sells his belonging to other person with an incorrect sale, that means the belonging is still under his ownership, so if a damage happens to that item in the hand of the purchaser, then it should be from the account of the seller. • But based on this rule it should be from the account of the purchaser or the buyer, and not the owner, the trade being incorrect does not have any affect, because the buyer did undertake the liability (EQDAAM) (ERAWANI: The rule lacks evidence) • This rule is called (What ever is guaranteed by a correct transaction is also guaranteed by the incorrect transaction). So the incorrect trade is dealt like correct based on this rule.