General Rules of Jurisprudence Lesson 27

1. General Rules of JurisprudenceLesson 27 The rule of “control” SULTANATE or SULTANANH part two: The four opinions in brief The discussion of the possible meanings The limits of the rule of Control

2. The possible meanings of this rule • The author of JAWAHIR: The rule indicates absolute freedom on how ever the owner wants to sell or gift or rent, regardless of the details of the conditions and laws of trades and transactions, or transfer of his belonging from him to others, such as reciting in ARABIC and so on so if he decides to do so then he has the full right and freedom to do so, • From this rule he concluded the permission and the validity of MOATAAT sale بيع المعاطاة (explain).

3. Sh. ALANSARI author of MAKASIB • This rule indicates the permission or the freedom to initiate a trade or a transaction with observing the details of the conditions and rules of such trade or transfer (of ownership –gift-) or transaction, that means a person has the freedom to do what ever type of transaction or transfer of his belonging or property as long as he is observing the detailed conditions of it. • So with this meaning the validity of MOATAAT cannot be indicated.

4. AKHOND ALKHORANSANI: author of KIFAYAH • It has a wider indication (negation or removal of the HIJR or legal restrain or hold from using his belonging), it does not give any indication of the freedom of transfer or transaction of trade or gift or rent (because those have their laws, conditions and rules) , it only indicates that an owner is not restricted limited from doing any thing legal with his belonging, it does not give any specification to the trade or transaction, as long as his actions or transactions are legal and permitted with his belongings then he has the freedom to do any thing with it. (wider indication) • It indicates no requirement for permission to transfer or do what ever is legal . • The rule is silence from indicating any thing more than permission.

5. The Grand ERAWANI (not the author of this book) • More narrower indication: It does not have any indication of freedom or permission to do the trade and transaction or transferring his belonging even with the conditions and laws, this law gives permission to non trade and non transferable actions, such as permission to stitch his cloth, or to move his belonging from one place to another.

6. The four opinions in brief: • Absolute freedom to sell the belonging or rent or exchange or …how ever. • Same as above but the freedom is restricted to observe the detailed rules and conditions of validity of such act. • The rule only indicates that a person is free do what ever legally with his belonging, not only just the transaction or transfer of the belonging, but it is more general and more wider then the previous opinion, it removes the legal hold or restrain on a person to do what ever to his belonging without any need for permission. (wide indication) • It only indicates the freedom of doing non transferable acts. (narrow indication)

7. The discussion of the possible meaning • Since the narrations are not strong indication of this rule, and the various meanings were obtained and based on the wording of the narrations, therefore since the only one indication is the SEERAH or the lifestyle or the practice of the intellectuals, then the meaning must be derived from the SEERAH. • The life of the intellectuals does not restrict this rule on the sales and transactions or transfers of the belonging, so that rules out the first and the second opinion which restricted the rule on it. • The life style indicates more wider actions to the belonging, it indicates that a person is permitted and does not require any extra permission from the legislator to do what ever legal action to his belonging which includes the sale and the transfer of a person’s belonging without any requirement for any ones permission including the legislator. • The SEERAH does not restrict a person from transferring or doing for ever is correct or legal to his belonging, so the forth opinion is also not indicated.

8. The limits of the rule of Control: • As mentioned the SEERAH does not restrict the rule from doing whatever a person wants to do with his belonging, but the religious legislator made some restrictions and limitations, such as: • Waste and extravagance: Burn his wealth or throw it or spend it in forbidden things. • وَآتِ ذَا الْقُرْبَى حَقَّهُ وَالْمِسْكِينَ وَابْنَ السَّبِيلِ وَلاَ تُبَذِّرْ تَبْذِيرًا {26} • [Shakir 17:26] And give to the near of kin his due and (to) the needy and the wayfarer, and do not squander wastefully.إِنَّ الْمُبَذِّرِينَ كَانُواْ إِخْوَانَ الشَّيَاطِينِ وَكَانَ الشَّيْطَانُ لِرَبِّهِ كَفُورًا [Shakir 17:27] Surely the squanderers are the fellows of the Shaitans and the Shaitan is ever ungrateful to his Lord.

9. 2-Religiously Taxed money: • Khums and Zakaat are excluded from this rule, because the amount of khums or zakaat in a person’s wealth is not his from the beginning, though he has earned it, but it is an obligatory duty on him to surrender it to whom he is supposed to do so. • The rule of SALTANAH or control is specified by the religious narrations. • A person cannot use his entire wealth unless he pays his due religious taxes (khums and Zakaat), there are two opinions regarding the restriction in this case: • (100 dollars and 20 was khums, you cannot use the 80 also.)

10. TAKHSEES and TAKHASOS • TAKHSEES (allotment or apportionment), the rule is specified: The restriction here is specification and limitation to the rule, that means the owner cannot use the entire wealth before paying his tax. This restriction is on the rule, the untaxed ($80)amount is completely his but he cannot use it. • TAKHASOS (specialization), the wealth is specialized: In this the restriction is on the entire wealth, that means he cannot not use his entire wealth, because the taxed money is spread into every single penny of the amount he needs to tax it (MOSHAA’ spread into it or joint state or commonage or common property or ownership), so since every part has a percentage of which does not belong to him, he cannot use it without the permission of the partner, (that is the reason if some one has to pay khums and he cannot do so then he must seek permission from the religious authority to use the rest. Example of TAKHSEES would be some type of ZAKAAT, and TAKHASOS will be KHUMS.

11. 3- Forbidden use of the belonging: Forbidden use such as buying wine or KHAMR or intoxicating agents, or gambling tools or tools of corruption, or corrupted books or lending it with conditional interest or usury, or doing any thing forbidden with his belongings. 4- The will of a dying person: He cannot make his will for more than 1/3 of his belongings or wealth, he only has the right of 1/3 of his wealth after his death.

12. 5- The will of a terminally sick person The terminally sick person is also limited and restricted to 1/3, his behaviors and actions regarding the transfer of his wealth is treated as if was dead. 6-The Issue of SHAFAA’ or right of priority in owning a shared belonging: A person cannot transfer his shared belonging into the ownership of a non partner person without the permission of his partner who can nullify the entire sale if he wants to buy that share. 7- No harm to others: If his actions to his belonging will harm others, and he had the option to avoid such action without harming himself then he must avoid. Such as building a restroom adjacent to the neighbor's wall.