Principles of Islamic Jurisprudence by MH kamali

Anyone who buys a musarrat has the choice for three

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Unformatted text preview: y to qiyas, that is, to analogy with the rule of equality between indemnity and loss. Abu Hanifah has held the view that the sa' of dates may not be equal in value to the amount of milk the buyer has consumed. Hence if the buyer wishes to return the beast, he must return it with the cost of milk which was in its udders at the time of purchase, not with a fixed quantity of dates. The majority of ulema, including Malik, Shafi'i, Ibn Hanbal and the disciples of Abu Hanifah, (Abu Yusuf and Zufar), have on the other hand accepted this Hadith and have given it priority over qiyas. According to the majority view, the compensation may consist of a sa' of dates or of its monetary value. Dates were specified in the Hadith as it used to be the staple food in those days, which may not be the case any more. [130. Hitu, Wajiz, p. 304; Badran, Usul, pp. 97-98 ] Imam Malik would rely on a solitary Hadith on condition that it does not disagree with the practice of the Madinese (amal ahl al-Madinah). For he considers the standard practice of the people of Madinah to be more representative of the conduct of the Prophet than the isolated report of one or two individuals. In his opinion, the Madinese practice represents the narration of thousands upon thousands of people from, ultimately, the Prophet. It is, in other words, equivalent to a Mashhur, or even Mutawatir. When an Ahad report contradicts the practice of the Madinese, the latter is, according to the Maliki view, given priority over the former. The Malikis have thus refused to follow the Hadith regarding the option of cancellation (khiyar al-majlis) which provides that 'the parties to a sale are free to change their minds so long as they have not left the meeting of the contract'. Principles of Islamic Jurisprudence ~ Kamali 77 [129. Muslim, Sahih The reason being that this Hadith is contrary to the practice of the people of Madinah. 140; Muslim, Sahih Muslim, p. 251, Hadith no. 944; Abu Zahrah, Usul, p. 85.] The Madinese practice on this point subscribed to the view that a contract is complete when the parties express their agreement through a valid offer and acceptance. The contract is binding as of that moment regardless as to whether the 'meeting of contract' continues or not. All the four Imams of jurisprudence have considered Ahad to be authoritative in principle, and none reject it unless there is evidence to suggest a weakness in its attribution to the Prophet, or which may contradict some other evidence that is more authoritative in their view. The majority of ulema do not insist that the Ahad should consist of a verbatim transmission of what the narrator heard in the first place, although this is the most authoritative form of transmission in any kind of Hadith. They would instead accept the conceptual transmission of an Ahad, on condition, however, that the narrator understands the language and purport of the Hadith in full. Only then would the rendering of the Hadith in the narrator's own words, which conveys an equivalent meaning, be acceptable. However if the narrator does not possess this degree of knowledge and is unable to transmit the Hadith in its...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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