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Introduction
A great maxim that covers all aspects of Islamic law; The maxim that is based on textual authority; One of the five leading maxims; included in all works on legal maxims;
The meaning
The validity of an act is based on intention; The acceptability of an act is based on ones intention Whether the act is intentional or due to negligence or due to unawareness i.e., unintentional;
Al-Suyuti considers this hadith as the origin of this maxim. This hadith is the core of the maxim;
Abu Hurayrah reported that the Prophet SAW said: Man will be raised based on their intentions. Another hadith from Aishah, the Prophet said: They will be raised according to their intentions.
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Hadith
From Sad bin Abi Waqqas the Prophet SAW said: You are not spend your property seeking the pleasure of Allah, except you will paid for it, even something that you put into the mouth of your wife.
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Ijma
The ulama are in agreement on the point that intention is essential in the act of salat, fasting, sadaqah and so on. Ibn al-Qayyim said that intention is the spirit of an act, its centre and its strength. It follows the intention in its validity and otherwise.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 14
Rational
The Lawgiver does not account the act committed by those whose intention are not accepted, such as an insane, an idiot, a person who forget. The acts committed by sound people must be prompted by their intentions.
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Narrated Um Salama: Allah's Messenger said, "I am only a human being, and you people (opponents) come to me with your cases; and it may be that one of you can present his case eloquently in a more convincing way than the other, and I give my verdict according to what I hear. So if ever I judge (by error) and give the right of a brother to his other (brother) then he (the latter) should not take it, for I am giving him only a piece of Fire." (See Hadith No. 638, Vol. 3).
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 16
Narrated Um Salama: (the wife of the Prophet) Allah's Messenger heard some people quarreling at the door of his dwelling. He came out and said, "I am only a human being, and opponents come to me (to settle their problems); maybe someone amongst you can present his case more eloquently than the other, whereby I may consider him true and give a verdict in his favor. So, If I give the right of a Muslim to another by mistake, then it is really a portion of (Hell) Fire, he has the option to take or give up (before the Day of Islamic Legal Maxims Prof Dr Mahamad 17 Resurrection)."@ Assoc Arifin, AIKOL bin (Qawa'id Fiqhiyyah)
Scope
What is meant by matters here does not refer to the act itself but to the rules of each act, such as valid or void, the act of obedience or otherwise, rewarded or punished, obligatory or recommended, unlawful or mere dislike and so on.
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Meaning of intention
The meaning of intention is the will directed towards the action, or the directing of the will towards the action. Example: if a person fires a shot at another with the intention of hitting him and does hit him, the perpetrator is said to have willed the action of firing and intended to hit the other person.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 20
Position of intention
The first two stages are not included in the category of the will or the choice of action, therefore they do not carry liability. The third stage Hadith al-nafs does not carry a liability either, in line with the Prophets saying, My people may be excused for their self-talk (ma haddathat bihi nufusuha).
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 22
Position of intention
A person is also not answerable for the fourth stage in compliance with a tradition of the Prophet: A resolve (hamm) to do good is registered as a pious deed, while a resolve to commit evil is not registered as an evil. The fifth and last stage was a matter of controversy.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 23
Exceptions
Intention does not apply in the following cases:
Acts of ibadat which are not to be confused, such as the believe in Allah, the recitation of Quran, remembrance of Allah etc; Prohibitions (nawahi); All the permissible things except when they are to be elevated to ibadat;
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 26
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Conditions of intentions
Islam Mumayyiz Full knowledge of the intended act; No contradiction between the intention and the intended act.
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The Majallah has adopted this rule in the interpretation of contracts: In contracts effect is given to intention and meaning and not words and forms (Article 3).
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Example
It is known that a contract for the use of a thing is called a contract of hire if a remuneration is stipulated in consideration of such a use, and a contract of loan if no such remuneration is stipulated. If two persons conclude a contract ostensibly of a loan but in consideration for which a specific rental is provided for, the contract would be regarded as a contract of hire as its real meaning indicates, and not a contract of loan as the wording of the contract would suggest.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 32
Exception:
If the contract involves 3rd party.
If the outward meaning of a statement should conflict with the intentions of the party making the statement, and a third party s rights become dependent upon such outward meaning, effect is given to it.
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E.g.,
If a litigant before a court of law be asked to take an oath, that oath is taken to mean what it outwardly says according to the understanding of the judge and the other litigant whose rights depend upon the outward meaning of the oath. A tradition of the Prophet reads: An oath must conform to the intentions of the party tendering it.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 34
An intention should be known if it is to be effected. Thus if a divergence should exist between the intention and the outward connotation and there is difficulty in ascertaining the intention, effect should be given to the outward connotation. In this regard a tradition of the Prophet reads: We give judgement on the basis of the apparent, God takes care of the inward intention.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 35
In obscure matters the proof of a thing stands in the place of such a thing. That is to say, obscure matters in which it is difficult to discover the truth are judged according to the obvious proof concerning their outward connotation (Article 68)
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Metaphorical (majazi)
Metaphorical expressions are those not used in their proper linguistic place, such as the word lion used by the Arabs to describe a brave man.
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Derelict
The derelict is that which has passed out of use and therefore cannot be given any meaning.
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Application
The Majallah says, In principle, words shall be construed according to their real meaning (Article 12). For example if a person should constitute his house into a waqf for the benefit of his sons, and if he should have sons and grandsons at the time of his death, the grandsons would not be entitled to any benefit because the real sense of the word sons does not include grandsons.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 41
The Majallah says, When the real meaning cannot be applied, the metaphorical sense may be used (Article 61). In the example, if the constituter of the waqf had made his sons the beneficiaries and had no sons but grandsons at the time of his death, the word sons would be construed to mean grandsons by way of metaphor because it is impossible to apply the real literal meaning, and the grandsons would be entitled to receive the income of the property.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 42
This interpretation would consummate the intention of the constituter of the waqf and would also be in conformity with a provision in the Majallah: A word should be construed as having some meaning, rather than disregarded. That is to say, if any particular meaning can be attributed to a word it may not be neglected as devoid of meaning (Article 60)
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But, if no meaning can be attached to a word it is disregarded altogether. That is to say, if a word cannot be construed in either a real or metaphorical sense it is neglected as being devoid of meaning (Art 62). An example of words devoid of meaning is for A to allege that B is his son while B is older than A (Art 1629)
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 44
All these articles of the Majallah have been derived from Al-Ashbah wa-al-Nazair and from the books of jurisprudence. In short, they provide that speech should fundamentally be construed according to its real meaning and if such construction should appear impossible then effect should be given to the metaphorical sense. Speech may only be disregarded if both the real and the metaphorical senses are impossible to discern.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 45
If the real and the metaphorical meanings should conflict and the former were derelict, effect should be given to the latter. When in some localities the metaphorical meaning has been predominant by force of custom which meaning is to be preferred?
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 46
The Imm Abu Hanifah said that effect should be given to the real. His two companions (Abu Yusuf and alShaybni), al-Ghazzli and other jurists held that preference should be given to the metaphorical and the customary if they were continuous and predominant.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 47
The Majallah adopted the second view; it says, The original (real) meaning is to be disregarded in favour of that established by custom (Article 40). Mahmassani add that the force of custom must be endorsed by intention as the jurists have explained on the authority of the Imm al-Shafii.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 48
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Explicit
is that speech which conveys a definite and clear meaning.
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The metonymic
is that speech in which the intention is hidden and requires explanation for proper understanding, and is deduced from the wording of the text or from its references or implications.
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Explicit speech is opposed from another side by meanings which are implicit in certain situations. These may be discerned from silence, presumption of fact or common usage. For example, most schools sanction bay al-taati which is sale by actual exchange indicating acceptance. The purchaser pays to the seller the price and receives the commodity without either of them uttering a word. In this case the implicit meaning of the facts has fulfilled the functions of offer and acceptance.
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 52
Another example is given by the Majallah: Permission may be given explicitly or by implication. Example: a minor of perfect understanding engages in business with the knowledge of his guardian who makes no comment thereon and does not prohibit him from doing so. The guardian is considered as having given his permission by implication (Art 975).
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Silence in itself is of no consequence unless it be supported by the facts of the situation. Thus the Majallah reads: No statement is imputed to a man who keeps silence, but silence is tantamount to a statement where there is a necessity for speech (Art 67).
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 54
Explicit speech is fundamental and is stronger than an implied connotation. This is the meaning of Art 13 of the Majallah which reads: No attention shall be paid to inferences (implication) in the face of an explicit statement.
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For example, if a person leaves certain property with a shopkeeper and the shopkeeper is aware thereof and keeps silent, the property in question is deposited for safe custody with the shopkeeper by implication. If the shopkeeper, however, deadlines to keep the property, no contract for custody is concluded. (See Majallah, Art 773)
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Examples
An example of this distinction is the contract of agency which may either be absolute or limited.
An example of the first exists wherein a person empowers another to sell his property without specifying the price. An example of the second is where a person empowers another to sell a certain thing but subject to explicit instructions as to the price of sale or any other limitation expressed or implied by custom
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It is to be deduced from the definition of absolute and restricted speech that every speech which is free of conditions must be considered absolute. The Majallah reads: The absolute is construed in its absolute sense, provided that there is no proof of a restricted meaning either in the explicit text or by implication (Art 64).
Islamic Legal Maxims (Qawa'id Fiqhiyyah) @ Assoc Prof Dr Mahamad bin Arifin, AIKOL 59
An agent who has been granted an absolute power to conclude contracts of sale may sell his principals property at any price he thinks fit whether great or small (Article 1494); if the principal, however, has fixed the price, the agent may not sell for less than such price... (Article 1495). In the latter ease restriction was explicit. But it may be implied; thus if a person appoints some other person his agent to purchase something which is necessary for some particular season the agency is considered to relate to that season (Article 1484).
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