Judgements

Malik related to me that he heard that a man of the Ansar fromthe tribe of Banu al-Harith ibn al-Khazraj, gave sadaqa to his parentsand then they died. Their son inherited the property he had given themand it was palm-trees. He asked the Messenger of Allah, may Allahbless him and grant him peace, about it and he said, "You are rewardedfor your sadaqa, and take it as your inheritance."

Yahya related to me from Malik from Hisham ibn Urwa from hisfather from Zaynab bint Abi Salama from Umm Salama, the wife of theProphet, may Allah bless him and grant him peace, that the Messengerof Allah, may Allah bless him and grant him peace, said, "I am but aman to whom you bring your disputes. Perhaps one of you is moreeloquent in his proof than the other, so I give judgement according towhat I have heard from him. Whatever I decide for him which is part ofthe right of his brother, he must not take any of it, for I amgranting him a portion of the Fire."

Malik related to me from Yahya ibn Said from Said ibn al-Musayyabthat Umar ibn al-Khattab had a dispute brought to him between a muslimand a jew. Umar saw that the right belonged to the jew and decided inhis favour. The jew said to him, "By Allah! You have judgedcorrectly.'' So Umar ibn al-Khattab struck him with a whip and said,"How can you be sure." The jew said to him, "We find that there is nojudge who judges correctly but that there is an angel on his rightside and an angel on his left side who guide him and give him successin the truth as long as he is with the truth. When he leaves thetruth, they rise and leave him."

Yahya related to me from Malik from Abdullah ibn Abi Bakr ibnMuhammad ibn Amr ibn Hazm from his father from Abdullah ibn Amr ibnUthman from Abu Amra al-Ansari from Zayd ibn Khalid al-Juhani that theMessenger of Allah, may Allah bless him and grant him peace, said,"Shall I not tell you who is the best of witnesses? The one who bringshis testimony before he is asked for it, or tells his testimony beforehe is asked for it."

Yahya said from Malik that he heard from Sulayman ibn Yasar andothers that when they were asked whether the testimony of a manflogged for a hadd crime was permitted, they said, "Yes, whenrepentance (tawba) appears from him."

Malik related to methat he heard Ibn Shihab being asked about that and he said the likeof what Sulayman ibn Yasar said.

Malik said, "That is what isdone in our community. It is by the word of Allah, the Blessed, theExalted, 'And those who accuse women who are muhsan, and then do notbring four witnesses, flog them with eighty lashes, and do not acceptany testimony of theirs ever. They indeed are evil-doers, save thosewho turn in tawba after that and make amends. Allah is Forgiving,Merciful.' " (Sura 24 ayat 4).

Yahya said, "Malik said from Jafar ibn Muhammad from his fatherthat the Messenger of Allah, may Allah bless him and grant him peace,pronounced judgement on the basis of an oath with one witness."

From Malik from Abu'z-Zinad that Umar ibn Abd al-Aziz wrote toAbd al-Hamid ibn Abd ar-Rahman ibn Zayd ibn al-Khattab who was thegovernor of Kufa, "Pronounce judgement on the basis of an oath withone witness."

Yahya said that Malik spoke about a man who died and had a debtowing to him and there was one witness, and some people had a debtagainst him and they had only one witness, and his heirs refused totake an oath on their rights with their witness. He said, "Thecreditors take an oath and take their rights. If there is anythingleft over, the heirs do not take any of it. That is because the oathswere offered to them before and they abandoned them, unless they say,'We did not know that our companion had extra,' and it is known thatthey only abandoned the oaths because of that. I think that theyshould take an oath and take what remains after his debt."

Yahya said, "Malik said about Jamil ibn Abd ar-Rahman al-Muadhdinthat he was present with Umar ibn Abd al-Aziz when he was judgingbetween people. If a man came to him with a claim against a man, heexamined whether or not there were frequent transactions and dealingsbetween them. If there were, the defendant could make an oath. Ifthere was nothing of that nature he did not accept an oath from him."

Malik summed up, "What is done in our community is that ifsome one makes a claim against a man, it is examined. If there arefrequent transactions and dealings between them, the defendant is madeto take an oath. If he takes an oath, the claim against him isdropped. If the defendant refuses to take an oath, and returns theoath to the claimant, the one claiming his right takes an oath andtakes his due."

Yahya said, "Malik said from Hisham ibn Urwa that Abdullah ibnaz-Zubayr gave judgment based on the testimony of children concerningthe injuries between them."

Malik said, "The generally agreedon way of doing things in our community is that the testimony ofchildren is permitted concerning injuries between them. It is notaccepted about anything else. It is only permitted between them ifthey testify before they leave the scene of the incident and have beendeceived or instructed. If they leave the scene, they have notestimony unless they call just witnesses to witness their testimonybefore they leave."

Yahya said, Malik related to us from Hisham ibn Hisham ibn Utbaibn Abi Waqqas from Abdullah ibn Nistas from Jabir ibn Abdullah al-Ansari that the Messenger of Allah, may Allah bless him and grant himpeace, said, 'If someone swears a false oath near this mimbar of mine,he will take his seat in the fire.' "

Malik related to me from al-Ala ibn Abd ar-Rahman from Mabad ibnKab as-Salami from his brother Abdullah ibn Kab ibn Malik al-Ansarifrom Abu Umama that the Messenger of Allah, may Allah bless him andgrant him peace, said, "Whoever cuts off the right of a muslim man byhis oath, Allah forbids him the Garden and obliges the Fire for him."They said, "Even if it is something insignificant, Messenger ofAllah?" He said, "Even if it is a tooth-stick, even if it is a tooth-stick," repeating it three times.

Yahya said that Malik had said from Da'ud ibn al-Husayn that heheard Abu Ghatafan ibn Tarif al-Muriyi say, "Zayd ibn Thabit al-Ansariand Ibn Muti had a dispute about a house which they shared. They wentto Marwan ibn al-Hakam who was the Amir of Madina. Marwan decided thatZayd ibn Thabit must take an oath on the mimbar. Zayd ibn Thabit said,'I swear to it where I am.' Marwan said, 'No, by Allah! only in theplace of sorting out claims (i.e. the mimbar).' Zayd ibn Thabit beganto take an oath that his right was true, and he refused to take anoath near the mimbar. Marwan ibn al-Hakam began to wonder at that."

Malik said, "I do not think that anyone should be made totake an oath near the mimbar for less than a fourth of a dinar, andthat is three dirhams."

Yahya said that he heard Malik say, "What is done in ourcommunity about a man who rents an animal for a journey to a specifiedplace and then he goes beyond that place and further, is that theowner of the animal has a choice. If he wants to take extra rent forhis animal to cover the distance overstepped, he is given that on topof the first rent and the animal is returned. If the owner of theanimal likes to sell the animal from the place where he over-steps, hehas the price of the animal on top of the rent. If, however, the hirerrented the animal to go and return and then he overstepped when hereached the city to which he rented him, the owner of the animal onlyhas half the first rent. That is because half of the rent is going,and half of it is returning. If he oversteps with the animal, onlyhalf of the first rent is obliged for him. Had the animal died when hereached the city to which it was rented, the hirer would not be liableand the renter would only have half the rent."

Malik said,"That is what is done with people who overstep and dispute about whatthey took the animal for."

Malik said, "It is also like thatwith some one who takes qirad-money from his companion. The owner ofthe property says to him, 'Do not buy such-and-such animals or such-and-such goods.' He names them and forbids them and disapproves of hismoney being invested in them. The one who takes the money then buyswhat he was forbidden. By that, he intends to be liable for the moneyand take the profit of his companion. When he does that, the owner ofthe money has an option. If he wants to enter with him in the goodsaccording to the original stipulations between them about the profit,he does so. If he likes, he has his capital guaranteed against the onewho took the capital and over stepped the mark."

Malik said,"It is also like that with a man with whom another man invests somegoods. The owner of the property orders him to buy certain goods forhim which he names. He differs, and buys with the goods somethingother than what he was ordered to buy. He exceeded his orders. Theowner of the goods has an option. If he wants to take what was boughtwith his property, he takes it. If he wants the partner to be liablefor his capital he has that."

Yahya said that he heard Malik say, "What is done in ourcommunity about someone who consumed an animal without the permissionof its owner, is that he must pay its price on the day he consumed it.He is not obliged to replace it with a similar animal nor does hecompensate the owner with any kind of animal. He must pay its price onthe day it was consumed, and giving the value is more equitable incompensation for animals and goods."

Yahya said that he heardMalik say about someone who consumes some food without the permissionof its owner, "He returns to the owner a like weight of the same kindof food. Food is in the position of gold and silver. Gold and silverare returned with gold and silver. The animal is not in the positionof gold in that. What distinguishes between them is the sunna and thebehaviour which is in force.

Yahya said that he heard Maliksay, "If a man is entrusted with some wealth and then trades with itfor himself and makes a profit, the profit is his because he isresponsible for the property until he returns it to its owner. "

Yahya related to me from Malik from Zayd ibn Aslam that theMessenger of Allah, may Allah bless him and grant him peace, said, "Ifsomeone changes his deen - strike his neck!"

The meaning ofthe statement of the Prophet, may Allah bless him and grant him peace,in our opinion and Allah knows best, is that "if someone changes hisdeen, strike his neck!" refers to those who leave Islam for other thanit - like the heretics and their like, about whom it is known. Theyare killed without being called to tawba because their tawba is notrecognised. They were hiding their kufr and publishing their Islam, soI do not think that one calls such people to tawba, and one does notaccept their word. As for the one who goes out of Islam to somethingelse and divulges it, one calls him to tawba. If he does not turn intawba, he is killed. If there are people in that situation, I thinkthat one should call them to Islam and call them to tawba. If theyturn in tawba, that is accepted from them. If they do not turn intawba, they are killed. That does not refer as we see it, and Allahknows best, to those who come out of Judaism to Christianity or fromChristianity to Judaism, nor to someone who changes his deen from thevarious forms of deen except for Islam. Whoever comes out of Islam toother than it and divulges that, that is the one who is referred to,and Allah knows best!

Malik related to me from Abd ar-Rahman ibn Muhammad ibn Abdullahibn Abd al-Qari that his father said, "A man came to Umar ibn al-Khattab from Abu Musa al-Ashari. Umar asked after various people, andhe informed him. Then Umar inquired, 'Do you have any recent news?' Hesaid, 'Yes. A man has become a kafir after his Islam.' Umar asked,'What have you done with him?' He said, 'We let him approach andstruck off his head.' Umar said, 'Didn't you imprison him for threedays and feed him a loaf of bread every day and call on him to tawbathat he might turn in tawba and return to the command of Allah?' ThenUmar said, 'O Allah! I was not present and I did not order it and I amnot pleased since it has come to me!' "

Yahya related to me from Malik from Suhayl ibn Abi Salih as-Samman from his father from Abu Hurayra that Sad ibn Ubada said to theMessenger of Allah, may Allah bless him and grant him peace, "What doyou think if I find a man with my wife? Shall I grant him a respiteuntil I bring four witnesses?" The Messenger of Allah, may Allah blesshim and grant him peace, replied, "Yes."

Malik related to me from Yahya ibn Said from Said ibn al-Musayyabthat a Syrian man called Ibn Khaybari found a man with his wife andkilled him, or killed them both. Muawiya ibn Abi Sufyan found itdifficult to make a decision and he wrote to Abu Musa al-Ashari to askAli ibn Abi Talib for him about that. So Abu Musa asked Ali ibn AbiTalib and AIi said to him, "Is this thing in my land? I adjure you,you must tell me." Abu Musa explained to him how Muawiya ibn AbiSufyan had written him to ask Ali about it. Ali said, "I am Abu Hasan.If he does not bring four witnesses, then let him be completely handedover," (to the relatives of the murdered man).