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Unformatted text preview: r, the rule of custom would be of no account in the face of this stipulation. For custom is only to be invoked when no clear text can be found to determine the terms of a particular dispute; and whenever a clear text is in existence, recourse to custom will be out of the question. To give another example: the costs of formal registration in the sale of real property are customarily payable by the purchaser. But if there is a stipulation in the contract that specifically requires the vendor to bear those costs, then the custom will be of no account and the purchaser will not be required to pay the costs of registration. [12. Isma'il, Adillah, p. 400.] 4) Lastly, custom must not violate the nass, that is, the definitive principle of the law. The opposition of custom to nass may either be absolute or partial. If it is the former, there is no doubt that custom must be set aside. Examples of such conflicts are encountered in the bedouin practice of disinheriting the female heirs, or the practice of usury (riba) and wine-drinking. The fact that these are widely practiced is of no consequence, as in each case there is a prohibitory nass, or a command which always takes priority, and no concession or allowance is made for the practice in question. But if the conflict between custom and text is not absolute in that the custom opposes only certain aspects of the text, then custom is allowed to act as a limiting factor on the text. The contract of istisna`, that is, the order for the manufacture of goods at an agreed price, may serve as an example here. According to a Hadith, 'the Prophet prohibited the sale of non-existing objects but he permitted salam (i.e. advance sale in which the price is determined but delivery postponed)'. [13. Bukhari, Sahih, III, 44 (Kitab al-Salam, Hadith nos. 1-3); Badran, Usul, p. 121.] Principles of Islamic Jurisprudence ~ Kamali 251 [10. This Hadith is general in that it applies to all varieties of sale in which the object of sale is not present at the time of contract. Salam was exceptionally permitted as it was deemed to be of benefit to the people. The general prohibition in this Hadith would equally apply to istisna' as in this case too the object of sale is non-existent at the time of contract. But since istisna' was commonly practiced among people of all ages, the fuqaha have validated it on grounds of general custom. The conflict between istisna' and the ruling of the Hadith is not absolute, because the Hadith has explicitly validated salam. If realisation of benefit to the people was the main ground of the concession that has been granted in respect of salam, then istisna` presents a similar case. Consequently the custom concerning istisna` is allowed to operate as a limiting factor on the textual ruling of the Hadith in that the Hadith is qualified by the custom concerning istisna'. Another example where a general text is qualified by custom is when a person is appointed to act as agent (wakil) for another in respect of concluding a particular contract such as sale or marriage. The agent's power to conclude t...
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