On Innovation

Tafsir by Imam Ibn Rajab al-Hanbali

Jami’ al-‘Ulum wa’l-Hikam by Ibn Rajab al-Hanbali Commentary on the Sixth Hadith of Imam Nawawi’s “Forty”

The mother of the mu’minun, Umm ‘Abdullah ‘A’ishah said, ‘The Messenger of Allah said, ‘Whoever introduces into this affair of ours that which is not of it, then it is rejected’.” Al-Bukhari (2697) and Muslim (1718) related it, and in a narration of Muslim’s there is, “Whoever does an act on which our affair is not [based] then it is rejected.”

They both published this hadith in the two Sahih books in the version of al-Qasim ibn Muhammad from his aunt ‘A’ishah and the wordings are different, but their meanings are close to each other. One of the wordings is “Whoever introduces into our din that which is not in it then it is rejected.”

This hadith is one of the tremendous principles of Islam. Just as the hadith “Actions are only by intentions” is the scale for weighing actions in their inward then it [this hadith] is the scale for weighing diem in their outward. Just as every action by which the face of Allah, exalted is He, is not intended has no reward in it for the person who does it, similarly every action on which the matter (din and Shariah) of Allah and His Messenger is not [based] is rejected for the one who does it Everyone who introduces into the din that for which Allah and His Messenger have not given permission has nothing to do with the din.

We will later see the hadith of al-‘Irbad ibn Sariyah that the Prophet % said, “Whoever of you live after me will see many disagreements, so you must take hold of my Sunnah and the Sunnah of the rightly guided khulafah, who take the right way after me. Bite on it with the molar teeth. Beware of newly introduced matters because every newly introduced matter is an innovation and every innovation is error.” He used to say in his khutbah ‘The truest discourse is the Book of Allah, and the best guidance is the guidance of Muhammad, and the worst of affairs are those which are newly introduced.” We will delay talking about newly introduced affairs until we encounter the hadith of al-Irbad indicated above. Here we will talk about actions for which there is no Shaft ah command and of their rejection.

This hadith expressly states that every action on which the ‘affair’ of the Lawgiver is not [based] is rejected, and it indicates by implication that every action on which the ‘affair’ of the Lawgiver is [based] is not rejected. What is meant by his ‘affair’ is his din and his Shaft ah as is meant by his words in another version, “Whoever introduces into this affair of ours what is not in it, then it is rejected.” So that the meaning is then that whoever’s action is outside of the Shaft ah and is not fixed to the Shaft ah, then it is rejected. His words, “on which our affair is not [based] ” indicates that all the actions of those who act ought to be according to the judgements of the Shaft ah, so that the judgements of the Shaft ah rule over them with its command and its prohibition. Whoever’s action runs according to the judgements of the Shariah and in accordance with it, then it is acceptable, and whoever is outside of that, then it is rejected.

Actions are in two divisions: acts of worship and ordinary transactions.

As for acts of worship, those of them which are entirely outside of the judgement of Allah and His Messenger are rejected from the one who does them, and he comes under His words, exalted is He:

“Or do they have partners who have laid down a din for them for which Allah has not given any authority?”

Whoever tries to draws near to Allah with an action that Allah and His Messenger did not make an act of drawing near to Allah, then his action is futile and rejected, and his state is like the state of those whose prayer at the House4 was like whistling and clapping hands. This is like those who attempt to draw near to Allah by listening to entertainment, or by dancing, or by baring the head outside of the ihram [of the Hajj], and suchlike newly introduced matters which Allah and His Messenger did not legislate as means of drawing near.

Something which is a means of drawing near in one act of worship is not necessarily so in other circumstances. The Prophet ft saw a man standing in the sun, and he asked about him. Someone said, “He vowed to stand without sitting, not to seek shade and to fast” The Prophet ft ordered him to sit down, to shade himself and to complete his fast. He did not consider his standing and going out into the sun an act of drawing near [to Allah] the vows for which he should fulfil [as vows must be fulfilled or else expiation made for them].

It has been narrated that was on the day of Jumu’ah during listening to the khutbah of the Prophet while he was on the mimbar, and that he vowed to stand without sitting or seeking shade as long as the Prophet ft was delivering the khufbah. The Prophet ft did not regard that an act of drawing near [to Allah] the vow for which should be fulfilled, even though standing itself is an act of worship in other places such as for the prayer, the call to prayer and during supplication at Arafah, and going out into the sun is an act of drawing near for the one who is in ihram. It thus shows that not everything which is an act of drawing near in one situation is also an act of drawing near in every situation. One only follows in that everything which derives from the Shariah in its [appropriate] places. It is similar with respect to those who attempt to draw near [to Allah] with acts of worship which are particularly prohibited, such as fasting the day of id, or praying at a time when it is forbidden [such as during the rising and setting of the sun].

As for whoever does an action which is originally a part of the Shariah and an act of drawing near and then introduces something that is not a part of the Shariah into it or falls short in something that is part of the Shariah, then this contradicts the Shariah according to the measure he falls short or introduces something new into it The question is whether his action is entirely rejected or not On this there is no absolute statement as to its acceptance or rejection. Rather it has to be looked into and if that in which he fell short is part of the action or one of its preconditions [the omission of which] requires the act’s invalidation in the Shariah such as someone who falls short in the obligations of purification for the prayer even though able to do it, or someone who neglects bowing or prostration or settling in those positions with stillness, then his act is rejected. He must repeat it if it was an obligation. If that in which he falls short does not necessarily result in the invalidation of his act, such as someone who fails to attend the obligatory prayer with other people – according to those who regard it as a duty but not a precondition [that one attend the obligatory prayer in the mosque with the community] – then one does not say that this person’s action is entirely rejected but that it has serious shortcomings.

If someone adds something which is not of the Shariah into an act of the Shariah, then the extra is rejected, meaning that it is not an act of drawing near [to Allah] and he will not be rewarded for it. Sometimes the act is entirely invalidated so that it is rejected, such as someone who deliberately adds an extra rak’ah in his prayer, for example. Sometimes it is not entirely invalidated and rejected, such as someone who makes wudu’ [washing each limb] four times, or fasts night and day continuously. Sometimes some of that which he is commanded to do in the act of worship is exchanged for something else which is forbidden, such as the person who covers his nakedness with clothing which is forbidden, or performs ’ for the prayer with water which has been forcibly expropriated, or performs the prayer on land which has been forcibly expropriated.

On all of these the people of knowledge have different views as to whether his action is entirely rejected or whether it is not rejected, and whether he has discharged his obligation by it. Most of the people of fiqh take the position that it is not entirely rejected. ‘Abd ar-Rahmin ibn Mahdi was told the story of some of the people of the science of kalam called the Shimariyyah-they were colleagues of Abu Shimar – who said, “Whoever prays dressed in clothing in the price of which there is one haram dirham must repeat the prayer.” He said, “I have not heard anything uglier than what they say. We ask Allah for safety and soundness.” ‘Abd ar-Rahman ibn Mahdi was one of the great men of fiqh of the people of hadith who studied closely the sayings of the right-acting first generations. He rejected this saying of theirs and regarded it as an innovation. That shows that he did not know of any one of the right-acting first generations who thought that one should repeat the prayer for the like of this. A similar situation is performing the Hajj with haram money. It has been narrated in a hadith that it [the Hajj] of such a person is rejected, but the hadith is not firmly established, and the people of knowledge differ as to whether the obligatory [Hajj] is discharged by it or not.

A very similar situation exists in the slaughter of animals [by cutting across the jugular veins] with an instrument which is forbidden, or with the slaughter done by someone who is not permitted to slaughter, such as a thief. Most of the people of knowledge say that his slaughter is permissible, but some of them say that it is forbidden. There is a similar disagreement about the person in ihram [for Hajj or Umrah] slaughtering [by cutting across the jugular veins] an animal which had been hunted, but in this case the position taken is more well-known and clear that it is forbidden, since it is specifically forbidden [in the Qur’an]. . –

For this reason, those of the people of knowledge who make a distinction, distinguish between whether the prohibition is because of some meaning particularly connected to the act of worship thus invalidating it, or whether it is not particularly connected to it and thus does not invalidate it. Prayer with the presence of physical impurities, or without purification, or without covering of the private parts, or directed away from the qiblah, all invalidate the prayer because the prohibition is directly connected to the prayer [and all these matters are expressly prohibited in the prayer], as opposed to prayer associated [for example] with something taken wrongfully by force. Something which testifies to the truth of that is that the fast is not invalidated except by embarking on something which is forbidden with respect to it, particularly such as anything of the category of eating, drinking and sexual intercourse, as opposed to that which the fasting person is prohibited — not particularly associated with the fast itself – such as lying and backbiting, according to the majority.

The Hajj is similar: nothing invalidates it except that which is particularly prohibited in the state of ihram, i.e. sexual intercourse; Things that are not definitely associated with the state of ihram, but which are haram in themselves, such as killing, stealing and drinking wine, do not invalidate the Hajj. Again, itikaf [retreat within the mosque, particularly for the last days of Ramadan] is only invalidated by that which is particularly forbidden during it, i.e. sexual intercourse. It is only invalidated by intoxication according to US and to the majority [of people of knowledge] because the intoxicated person is forbidden to come near the mosque and enter it, according to one of the two interpretations of His words, exalted is He:

“You who have tmdn! do not approach the prayer when you are drunk,” (Surat an-Nisa: 43) which is that what is meant is ‘ [do not approach] the places of the prayer’, so that he [the intoxicated person] is similar to the woman in her period [who is also not to enter the mosque], Itikaf is not invalidated by any other great wrong actions according to us and to most of the people of knowledge although a number of the right-acting first generations disagree, of whom were ‘Ata’, az-Zuhri, ath-Thawri, and Malik, and it has also been said that it was the position of others as well.

As for the ordinary transactions of everyday life, such as contracts and revoking contracts, etc., those which alter Shaft ah usages such as changing the prescribed punishment for adultery to a fine, are entirely rejected, and ownership cannot be transferred because of them, because this is unknown in the judgements of Islam. What proves that is that the Prophet spoke to someone who told him, “My son was employed by so and so and he committed adultery with his wife, so I ransomed him with a hundred sheep and a servant.”

The Prophet said, “The hundred sheep and the servant are returned to you, and your son must be given a hundred lashes and exiled for a year.” Whatever contract is forbidden in the Shaft ah, whether it is [forbidden] because that which is contracted for is not acceptable, or because of the absence of a prerequisite, or because of an injustice which will affect either one of the two parties, or because the contract will keep someone away from the obligatory remembrance of Allah A when little time is available, or for some other reason, then whether this contract is entirely rejected and ownership cannot be transferred by means of it or not is a matter with which people have struggled a great deal. That is because in some forms it is related that it is rejected and that it does not transfer ownership, but in some others that it does transfer it, and so there has been about a great deal of controversy concerning it What is closest, if Allah, exalted is He, wills, is that if that which is forbidden is forbidden because of one of Allah’s rights, exalted is He, then it definitely does not transfer ownership. The significance of its being a right of Allah is that it cannot be absolved even by the agreement of the two contracting parties.

However, if that which is forbidden is so because of the right of a specific human being so that it is cleared with his agreement, then it depends on his agreement to it If he is contented, the contract is binding and ownership endures, but if he is not contented with it, he is allowed to annul it. If the contentment of the one who is affected detrimentally is not reckoned at all, such as a wife in the case of divorce and a slave in the case of setting free, then neither his acceptance or rejection is reckoned with.

If the prohibition is out of consideration for the person being prohibited in particular because of the inconvenience he will suffer, and he himself disagrees and accepts the inconvenience, then the deed is not invalidated by that As for the first it has many forms:

Of which there is marriage to someone whom it is forbidden to marry, either specifically, such as those to whom marriage is forever forbidden through some cause [e.g. a triple divorce] or through kinship or because he already has four wives, or lacks one of the prerequisites of marriage which cannot be relinquished by the mutual consent of the partners, such as marrying a woman during her iddah period [after divorce or being widowed] or who is in ihram* marriage without the [agreement of the woman’s] guardian, etc. It has been narrated that the Prophet ft separated a man and the woman he had married while pregnant, and so he rejected the marriage because it had happened within the iddah period [from her first marriage] .

There are also usurious contracts which do not convey ownership and we are commanded to reject them and return them, for the Prophet ft told the one who sold a [four double handfuls] of dates in exchange for two sa’s, to return it.

There is also the sale of wine, meat which has not been slaughtered according to the Islamic Short ah (maytah – literally ‘dead’), pork, idols and dogs, and all the other things which it is forbidden to sell, with respect to which the mutual consent of the two parties is not acceptable.

As for the second, it has many forms such as the guardian marrying off the woman whom he is only permitted to marry off with her permission but he does so without her permission. The Prophet ft rejected the marriage of a woman who had already been married [then divorced or widowed] when her father married her off against her will. It is also narrated that he ft gave another woman who had been married off without her permission the right to choose. Regarding the invalidation of this marriage and its dependences upon consent [from the girl married off] there are two narrations from Ahmad.

A group of people of knowledge take the position that someone who deals on behalf of another person in his property without his permission, that his dealing by his own independent judgement is not invalid in principle, rather its permissibility is suspended. They seek proof from the hadith of ‘Urwah ibn al-Ja’d when he bought two sheep for the Prophet ft whereas he was only asked to buy one sheep, and then later he sold one of them and the Prophet i accepted it. Imam Ahmad applied that specifically, in that standpoint for which he is well known, to someone who transacted on behalf of someone else with that person’s property and by his permission but acted contrary to the permission he had been given.

Another example of this category is the question Whether the [terminally] sick person’s transacting with all of his wealth is entirely invalid or his transaction on the two thirds [that belong to his inheritors after his death] will be dependent upon the permission of his heirs. On this there is a very well known difference of opinion among the people of fiqh and a disagreement in the schools of Ahmad and others. It is a sound tradition that a case was brought to the Prophet ft of a man who, having no other property, freed six slaves just before his death. He ft called them and separated them into three groups, freed two of the slaves and re-enslaved four of them, and he spoke severely to him. Maybe the heirs had not permitted the freeing of all of the slaves, and Allah knows best.

Of this category is the sale of someone who deceives [by omitting to mention a defect, etc.] and the like. For example, there is the one who ties up the udder of a camel which is for sale several days before the sale so that it is large and gives the impression Of yielding much milk, or someone outside a transaction who praises the goods for sale or even bids for them, only in order to raise the price or tempt the buyer to conclude the sale, or the towns-person who goes out to meet the country-person on his way to the town in order to deceive him about the market price of his goods and buy from him at a cheaper price than the market price, etc. There is considerable disagreement about the acceptability of all of these transactions in the school of Ahmad. A group of the people of hadith take the position that they are all invalid and rejected. The correct position is that they are sound if the one who receives some hurt or loss from it subsequently grants permission. It is narrated authentically from the Prophet ft that he gave a free choice [to accept or reject the sale] to someone who had bought a camel whose udder had been tied in order to give the impression that it yielded copious quantities of milk, and when the people from the country who had been met outside of the town by someone who misled them about the market price arrived at the market he gave them free choice [to accept or reject the transaction] , all of which shows that they are not necessarily rejected. The hadith about the camel whose udder had been tied up was narrated to one of those who declare these transactions completely invalid, and no reply is recorded of him.

As for the towns-person selling on behalf of the country person, those who regard it as a sound transaction see it as one of the above types. Those who regard it as invalid consider all the people of the city as being those who have a right concerning it [to grant permission for it] and they cannot be united together (for their permission to be sought) making it inconceivable for their rights to be waived, so it becomes similar to the right of Allah.

Another example is the sale of slaves whom it is not permitted to separate and whom the seller does separate, such as a mother and child. Does this sale become invalid and is it to be rejected, or does it depend on their acceptance?

It has been narrated that the Prophet commanded the rejection of this sale. Ahmad clearly stated that it is not acceptable to separate them even if they are contented with it. A group took the position that it is permissible to separate them if they accept, of whom were an-Nakha‘I and ‘Ubaydullah ibn al-Hasan al-‘Anbari, and according to this, it tends towards the position that it is sound depending on their acceptance of it.

Another example is if someone singles out one of his children for a gift apart from the others [whereas it is commanded to give equally to one’s children]. There is a sound transmission from the Prophet -ft to the effect that he told Bashir ibn Sa‘d, when he singled out his son an-Nu‘man for a gift, that he should take it back.’ However, it does not show that ownership was not transferred to the son, because this gift is a sound transaction and takes place out of deference. If he then treats his children equally in terms of gifts [by giving the others the same as he gave to the one child] or takes back what he gave to the one child, it is acceptable. If he dies and had done neither of those things, then Mujahid said that it is a part of his inheritance [to be divided among his heirs], and that has been said to be the position of Ahmad and others, and that the gift is invalid. The majority took the position that it is not invalid.

As to whether the heirs have the right of having it returned or not, there are two well-known positions both of which are narrated of Ahmad. Another example is also the types of divorce which are forbidden such as divorcing a woman during her menstrual period, because it is said that it is forbidden because of the husband’s right since it is feared that he will subsequently regret it. If someone is forbidden something out of concern for his welfare but he does not refrain from it, but rather does it and undertakes the difficulties that it entails, then one cannot give the judgement that what he did is invalid.

For example, someone who fasts while he is ill or on a journey, or fasts day after day without some days when he does not fast, or someone who gives away all of his property and then sits begging from people, or the sick person who prays standing even though it causes him harm, or bathes even though he has good cause to fear that it will make him ill or cause his death and even then does not take advantage of the option of doing tayammum, or someone who fasts for long periods without ever breaking his fast, or prays all night without sleeping.

The case of someone who says three divorces at one time is similar to all of those according to the position [of the majority] that it is forbidden [i.e. the divorce is valid and irrevocable even though the form is forbidden].

Some say that it is forbidden to divorce a woman during her menstrual period because of the woman’s right because of the difficulty it will cause her by lengthening the ‘iddah period. If she is contented with it and had asked for the divorce and provided material compensation [to her husband] during her period, so then does that remove the prohibition? On this there are two well known positions among the people of knowledge. What is well known in our school and in the school of ash-Shafi‘i is that the prohibition is removed because of that If anyone says that the prohibition in it is indeed in order to protect the husband’s right, so that if he himself dares to do it he has relinquished his right and so [the prohibition] is dropped.

If he [the husband] justifies himself [by the argument] that [the prohibition] is in order to protect the wife’s right then nevertheless neither does that prevent its execution and its taking place, because the woman’s acceptance [or rejection] of the divorce is not considered by any of the Muslims, except for a few Shi‘ah and the like disagreeing on that. It is similar to the fact that a slave’s acceptance [or rejection] is not a factor in his being freed, even if he suffers hardship because it (being freed). However, if a woman faces hardship from it [her divorce] and something remains of her divorce [if it is not a final divorce] then he is commanded to take her back just as the Prophet told Ibn ‘Umar to take his wife back in order to rectify the harm he had done her, and in order to rectify the forbidden form of divorce that he had used, so that her separation from him would not come about from a haram form of divorce, and so that he would be able to divorce her in a permitted fashion and her separation from him would take place in this way. It has been narrated from Abu’z-Zubayr from Ibn ‘Umar that the Prophet * returned her to him and did not regard it [the divorce] as being valid. This is something that Abu’z-Zubayr alone narrated among all the companions of Ibn ‘Umar, such as his son Salim and his mawla Nafi’, Anas, Ibn Sirin, Tawus, Yunus ibn Jubayr, ‘Abdullah ibn Dinar, Sa id ibn Jubayr, Maymun ibn Mihran and others.

The leaders of the people of knowledge of hadith and fiqh reject this wording of Abu’z-Zubayr and say that he alone narrates something which contradicts trustworthy narrators. Therefore, what he alone narrates is not accepted, because what the body of people narrate from Ibn ‘Umar shows in many ways that the Prophet reckoned it to be a [valid] divorce. Ibn ‘Umar used to say to men who asked him about divorce during a woman ’s menstrual period, “If you have divorced her once or twice, then the Messenger of Allah told me to do that,” i.e. to take her back, “and if you divorced her three times, then you have disobeyed your Lord and your wife is separated from you [irrevocably].”

In the narration of Abu’z-Zubayr there is another extra part, on which people do not agree, which is that he said, ‘Then the Messenger of Allah ‘O Prophet! When any of you divorce women, divorce them during their period of purity and calculate their iddah carefully. ’” None of the other narrators mentioned this of Ibn ‘Umar, but ‘Abdullah ibn Dinar narrated that Ibn ‘Umar used to recite this ayah when he narrated this hadith, and this is what is authentic.

A group of people think that Ibn ‘Umar’s divorce was a threefold divorce, and that the Prophet, only returned her to him because divorce cannot take place during the menstrual period, and this has also been narrated of Abu’z-Zubayr in the transmission of Mu‘awiyah ibn ‘Ammar ad-Duhni.

Abu’z-Zubayr must have thought that this was true and thus he narrated this wording with the meaning he understood it to have. Ibn Lahl’ah narrated this hadith from Abu’z-Zubayr and said, “It is from Jabir that Ibn ‘Umar divorced his wife while she was in her menstrual period, and the Prophet  said, ‘Let him take her back because she is his wife,’” and he was mistaken in mentioning Jabir in this chain of transmission, and he is the only one who mentions his words, “for she is his wife,” and it does not proves that divorce does not take place unless one assumes that it was a triple divorce [in one pronouncement]. There is disagreement about this hadith [narrated by] Abu’z-Zubayr, but, Ibn ‘Umar’s companions – who were trustworthy memorisers who knew him well and kept his company constantly – do not differ among themselves about it Ayyub narrated that Ibn Sirin said, “I spent twenty years with people of whom I had no suspicion, telling me that Ibn ‘Umar divorced his wife three times [in one pronouncement] while she was in her menstrual period, and that the Prophet * told him to take her back.

I never came to suspect them and I didn’t know the hadith until I met Abu Ghallab Yunus ibn Jubayr, who was very trustworthy, and he told me that he had asked Ibn ‘Umar who had told him that he had divorced her one time.” Muslim narrated it.

In another version, Ibn Sirin said, “I came to recognise that the hadith had no validity nor could I understand it.”

This shows that it had spread among trustworthy people, who were not people of fiqh and knowledge, that Ibn ‘Umar’s divorce had been threefold.

So it seems likely that Abu’z-Zubayr had been one of those people. It was for that reason that Nafi‘ was asked repeatedly about whether Ibn ‘Umar’s divorce was threefold or single. When Nafi‘ came to Makkah, they sent to him from the assembly of ‘Ata’ to ask him about it because of this ambiguity. Ibn Sirin’s denial of the version about the threefold divorce shows that he did not know any person seriously to be reckoned with who said that the forbidden form of divorce [such as divorcing in the menstrual period or the triple divorce] does not take effect, and that this position is invalid.

When Imam Ahmad, in the version of Abu’l-Harith, was asked about someone who says that the forbidden forms of divorce do not take effect because the man is acting contrary to that which he is commanded to do, said, “This is a destructive evil statement,” and then he mentioned the story of Ibn ‘Umar and that he had reckoned the divorce he had pronounced in his wife’s menstrual period [as an actual divorce].

Abu‘Ubayd said, The people of knowledge from all the lands agree upon unanimously that it takes effect; those from the Hijaz, Tiham, Yemen, Sham, Iraq and Egypt” Ibn al-Mundhir related it from all the people of knowledge whose statements are [worthy of being] memorised except for some innovators who are not held in high regard.

As for that which Ibn Hazm narrated from Ibn ‘Umar, that divorce does not take effect when pronounced during the menstrual period, which he supports by that which he narrated by way of Muhammad ibn ‘Abd as-Salam al-Khushani al-Andalusi who was told by Muhammad ibn Bashshar who was told by ‘Abd al-Wahhab ath-Thaqafi from ‘Ubaydullah ibn ‘Umar from Nafi‘ that Ibn ‘Umar said concerning someone who divorces his wife while she is in her menstrual period, “It is not reckoned [as a divorce].” He has also something similar with a chain of transmission from Khilas. However, this tradition has some words missing from its end, which are that he said, “The iddah period is not reckoned from this menstrual period.” In that way, Abu Bakr ibn Abi Shaybah narrated it in his book from ‘Abd al-Wahhab ath-Thaqafi, and similarly Yahya ibn Ma‘in from ‘Abd al-Wahhab also and he said, “Itis gharib and no one but ‘Abd al-Wahhab narrated it.” What Ibn ‘Umar meant was that the woman does not count the menstrual period in which she is divorced as one of the menstrual periods [in her ‘ iddah], which is what Khilas and others meant.

That has also been narrated of a large group of the right-acting first generations such as Zayd ibn Thabit and Sa’id ibn al-Musayyab, but a group of Quranic commentators misinterpreted it, as did Ibn Hazm, and they narrated from some of those whom we have named that divorce pronounced during the menstrual period does not take effect, and this is the cause of their misinterpretation, and Allah knows best This hadith [the subject of this chapter] was narrated by al-Qasim ibn Muhammad when he was asked about a man who had three houses and who had bequeathed a third of [each of] his three houses, whether one should unite [the bequest] on his behalf in a single house. He said, “One should unite all of it in one house; ‘A’ishah told me that the Prophet said,  ‘Whoever does an act on which our affair is not [based] then it is rejected.’” Muslim narrated it. What he meant was that changing the bequest of the person who bequeathed into something more beloved to Allah and something more beneficial is permissible. This is also said to be the view of Ata and Ibn Jurayj. Often some of those who take this position seek proof from His words, exalted is He:

“But if someone fears bias or wrongdoing on the part of the person making the will, and puts things right between the people involved, in that case he has not committed any crime,” and perhaps they also derive it from the grouping of the freed slaves because it is authentically report that a man, “freed six slaves of his on his death, and the Prophet  called them and grouped them in three groups [of two], and then freed two [slaves] and re-enslaved four.” Muslim narrated it. The people who have discernment in hadith base themselves on this hadith, since to completely free a slave wherever possible is better than to free a part of him [and thus to free two of the six entirely is preferrable to freeing some of each one of the six]. For this reason [the slave’s] working [to free himself by purchasing his freedom] is laid down when a part-owner of a slave frees his portion of the slave [so that the slave does not languish as partly free and partly a slave]. He said about someone who freed a part of his slave, “He is completely free; Allah has no partner,” [there being no other part-owner of the slave].

Most of the people of knowledge disagree with this statement of al-Qasim, holding to the position that the bequest is not to be combined and that his wording is followed except in the particular case of freeing a slave, because the meaning in the case of freeing a slave does not exist in respect to other properties, so that one has to act, with respect to them, as required by the bequest of the person making the will.

A party of people of fiqh take the position concerning freeing of slaves that each slave should have a third of him freed and they should all work to free the remaining portion, but following the judgement of the Prophet is more correct and more fitting. Al-Qasim considered the possibility that the subject of the bequest sharing the heirs’ houses along with them might be bothersome to them, and so he protected them from this harm and combined the bequest in one dwelling, because Allah has stipulated that bequests mustn’t cause harm, in His words:

“…making sure that no one’s rights are prejudiced. This is an instruction from Allah.” (Surat an-Nisa: 12). Whoever causes harm by his bequest then his act is rejected because he contravenes what Allah, exalted is He, specifies for bequests.

A party of the people of fiqh take the position that if someone bequeaths one third of all his houses and then two thirds of them are destroyed leaving only one third, that all of it should be given to the subject of the bequest. This is the position of a party of Abu Hanifah’s associates, and is said to be the position of Abu Yusuf and Muhammad [ibn al-Hasan ash-Shaybani]. Qadi Abu Yala of our own people [the Hanball’s] agreed with them in his disagreement [with the Hanball position]. They based that on the fact that the houses which are shared must compulsorily be divided between those who share them, as is the position of Malik and the apparent position of Ibn Abi Musa of our own people. What is well known among our people is that numerous dwellings are not to be divided up compulsorily, and that is the position of Abu Hanifah and ash-Shafi’i, may Allah show mercy to them. Some of the Maliki’s interpret the above mentioned fatwa of al-Qasim in this hadith that one of the two parties -the heirs and the subject of the bequest – asked for the houses to be divided up and that they were close together, so that they could be added together in the process of division, so that its division according to their request ought to be complied with, but this interpretation is remote and contradicts the apparent meaning, and Allah knows best.