والأداء أنواع كامل و قاصر و ما هو شبيه بالقضاء
Adaa is of (three) types, kamil, qasir, and that which resembles qadaa.
Adaa can be split into two types; Adaa Mahd and Adaa which resembles qadaa. As for Adaa Mahd it is split into further two types; Adaa Kamil and Adaa Qasir.
Adaa Mahd is that which does not resemble qadaa in any way. Adaa kamil is when adaa is done exactly as it has been ordained, and adaa qasir is to do adaa but not exactly as it has been ordained (and it does not resemble qadaa). Adaa which resembles qadaa is to do adaa in a different way to that which has been ordained, and therefore it resembles qadaa.
كالصلاة بجماعة والصلاة منفردا
(The example of adaa kamil is) like salah with jama’ah, and (the example of adaa qasir is like) salah by oneself.
To do salah in jama’ah (congregation) is an example of adaa kamil. This is because this is how it has been ordained, as salah was only ordained with jama’ah through the teaching of Jibreel (as)[1].
To do salah by oneself is an example of adaa qasir, as this is not how the command was ordained, and therefore it is slightly deficient. This can be seen in that it is wajib to pray loudly for salatul jahr[2] when praying in jama’ah. However, when praying individually it is not wajib to read loudly[3], and therefore as it is not kamil i.e. not being carried out as ordained, it is considered to be adaa qasir.
وفعل اللاحق بعد فراغ الإمام حتى لا يتغير فرضه بنية الإقامة
(the example of adaa which resembles qadaa is) the action of a lahiq (who joins the salah, but then leaves it, and rejoins and completes his salah) after the imam completes his salah, such that the obligation (to do two rakats if he is a musafir) does not change with the intention of iqamah.
The lahiq[4] is that person which started with the imam, then as they were required to do wudhu, they broke off their salah with the imam, did wudhu, and then completed their salah after the imam had finished. Therefore, as the person completed their salah within the waqt for salah, this will be considered adaa. Furthermore, it resembles qadaa as the person did not complete their salah as it was ordained.
One of the effects of this being adaa which resembles qadaa is that if the person started their salah with the imam as a musafir, and then upon breaking their salah[5] become a muqeem[6], then when they return to complete their salah and find that the imam has finished, they will still need to complete their two rakah, provided they have not talked to anyone. Therefore, the obligation of their salah does not change, even though they have become muqeem they will need to complete two rakah. Whereas if they talked in between, or found the imam[7], then when completing this salah they will need to do four rakat.
و منها رد عين المغصوب ورده مشغولا بالجناية
And from it (the examples of adaa ) is to return the (exact) item which was taken (this is adaa kamil), and to return it (the slave which was taken burdened) with a crime.
After Allamah al-Nasafi mentions the examples of adaa in terms of the rights of Allah, he mentions examples with respect to the rights of people. An example of adaa kamil is to take a slave forcefully, and then to return the slave exactly in the same state that it was taken, with no defects and not accused of any crime. An example of adaa qasir is to take a slave forcefully, and then to return the slave with a defect such as an injured arm, or to return the slave which has committed a crime. This is because compensation will need to be paid, and therefore the item / slave has been returned in a state different to its original, therefore it is adaa qasir. Furthermore, if the defect occured due to an external factor which the looter had no control over, the looter will not be liable to pay for the defect i.e. the looter cannot be held responsible for a crime the slave committed.
وامهار عبد غيره وتسليمه بعد الشراء حتى تجبر علي القبول و ينفذ إعتاقه فيه دون إعتاقها
(An example of adaa which resembles qadaa is) to give as mahr (to his wife) the slave of another (person, which he does not own, so that he can marry her), and to hand him (the slave) over after purchasing (the slave, and after the nikah). To the extent that (this is adaa which resembles qadaa even if) she (the lady getting married) is forced to accept (the slave as mahr). It (the freedom of the slave) will be enforced with his freeing (if he grants freedom before handing him over as mahr to his wife), and not her freeing (as she has not become the owner yet).
This is an example of adaa which resembles qadaa in terms of huqooq al-ibaad. The example mentioned here is the case of a man stipulating someone else’s slave as mahr, in order for him to get married.
Scenario: Zayd makes an offer of marriage to Aysha in exchange of Umar’s slave as mahr. Aysha accepts the offer. After the marriage ceremony, Zayd buys Umar’s slave and gives him to Aysha. Technically, Zayd did exactly what he promised. This is fulfillment, therefore adaa has been done. However, if we look deeper, Zayd did not actually fulfill his promise. He did not give Aysha Umar’s slave, rather he gave her his slave. This is because after he bought Umar’s slave, it ceased to be Umar’s slave and became Zayd’s slave, even though the slave is the same person. So, in a sense Zayd did not fulfil exactly what he promised, but the equivalent, therefore it resembles qadaa. In short, Zayd fulfilled his promise as expected (adaa), but it also resembles qadaa as he did not give her Umar’s slave, rather his slave.
We know that this is adaa, as the woman will be forced to accept the named slave as mahr when it is given to her. As the woman accepted to take the slave as mahr, she cannot refuse to accept it after it has been bought. If she could refuse the slave as mahr, it would be like qadaa. This would be similar to the case where the man gives the equivalent value of the slave as mahr rather than the slave, in this case it would be like qadaa and the woman would be able to refuse.
This is different to the case of a normal transaction, where if the nature of the item being sold changes, the transaction will become invalidated and made null. Whereas in the case of nikah if the nature[8] of the mahr changes somewhat, it does not nullify or invalidate the marriage.
Scenario: Umar sells his slave to Zayd[9]. Bakr comes along and says that the slave belongs to him[10]. Umar then buys the slave from Bakr. Now even though Umar made a deal with Zayd to sell him the slave, Umar will not be forced to sell to Zaid[11]. This is because as soon as there was istihqaaq[12], the transaction was halted, and it was dependent on the permission of Bakr to sell his slave. Therefore, if Bakr did not sell his slave to Umar, the original transaction between Umar and Zayd would have been invalid.
Furthermore, the example resembles qadaa as if the husband set the slave free before handing it over as mahr to his wife then this would be accepted, as he is the owner after purchasing the slave. Even though he made oath he would hand the slave over as mahr, the wife cannot set the slave free whilst the slave is in her husband’s possession. As soon as she is handed the slave as mahr, she becomes the owner of the slave, and only in this case can she set the slave free if she wishes.
Question: How do we know that this is adaa which resembles qadaa? Why do we not say it is qadaa which resembles adaa? Are both the same thing?
Answer: We know that this is a case of adaa resembling qadaa as it is the original entity and obligation which stays the same, whilst the description is what changes. So, in the case of the slave, the actual slave has not changed, whilst the description of who owns the slave has changed. As the original is more deserving, we name it adaa shabeehan bi al-qadaa[13], and not qadaa shabeehan bi al-adaa[14].
و القضاء أنواع أيضا بمثل معقول و بمثل غير معقول و ما هو في معنى الأداء
Qadaa is of (three) types also. (that which is) logical, (that which is) illogical, and that (qadaa) which is in the meaning of adaa.
After describing the types of adaa, Allamah al-Nasafi now expands on the types of qadaa. Qadaa is to carry out a likeness of adaa. Qadaa can be split into two types; Qadaa mahd and Qadaa in the meaning of adaa. As for qadaa Mahd it is split into a further two parts; qadaa ma’qool, and ghayr ma’qool. Therefore, making three parts in total.
As for qadaa mahd it is that which is not in the meaning of adaa primarily, neither in reality nor in ruling. As for qadaa in the meaning of adaa it is the opposite of qadaa mahd such that encompasses the meaning of adaa. Examples of all three types will follow.
كالصوم للصوم والفدية له وقضاء تكبيرات العيد في الركوع
(the examples of these three types of qadaa are) like fasting (as qadaa) for fasting, and fidya for it (missed fast), and qadaa of takbeerat of Eid in ruku.
If a person misses a fast and they are required to make it up, it is only logical to compensate it by keeping another fast. This is the logical equivalent, and therefore is considered to be qadaa ma’qool. This is an example of the first type of qadaa.
The second example of qadaa is to give fidya as qadaa for a missed fast. This will be considered ghayr ma’qool as it is not logical to give money as compensation for a missed fast. This qadaa is not the logical equivalent and is only known through shariah; { وَعَلَى الَّذِينَ يُطِيقُونَهُ فِدْيَةٌ طَعَامُ مِسْكِينٍ}[15]. The fidya for every missed fast is to give a poor person half a saa’[16] of wheat, or one saa’ of wheat or one saa’ of barley[17]. Therefore, as fasting is the abstention from food, and fidya is the providing of food, it seems illogical for one to substitute the other, and therefore is ghayr ma’qool.
The final example given here is the example of qadaa which resembles adaa. That is the example of the person who joins the salah of Eid while the Imam is in rukoo’. This person will have missed the three extra takbeer which are done at the beginning of Eid salah. According to Imam Abu Hanifa this person will need to make qadaa of the missed takbeer in the rukoo’[18]. They would do this by doing the takbeer for tahreema, then the takbeer for rukoo, and then whilsts in rukoo do the three extra takbeerat. This is because rukoo’ is fardh and takbeer is wajib, therefore the two actions are combined in rukoo. Furthermore, they should do these takbeerat without raising the hand[19]. This is qadaa, as it is a repeating of the initial missed action, which was the missed takbeerat. On the other hand, it resembles qadaa, as rukoo’ resembles qiyam[20].
ووجوب الفدية في الصلوة للاحتياط كالتصدّق بالقيمة عند فوات أيام التضحية
The wujoob of fidyah for salah is (given as) a precaution, (this is) like (the example when) sadaqah is given (as qadaa) for the price (of an animal) when the days of Eid (and the times of slaughter) have passed.
According to the Ahnaf there is fidya for Salah[21]. This will be the case, when a person is dying and they order that fidya is paid as qadaa for their missed salah. This seems strange, as fidya is qadaa ghayr ma’qool, and although there is evidence from the Quran for the giving of fidyah for missed fasts, there is no such evidence from hadith or quran to give fidyah as qadaa for a missed salah. Furthermore, it is well established that there is no possibility for qiyaas when it comes to matters of ibadah. Allamah al-Nasafi answers that fidyah is given as a precaution. This is because salah can be considered to be greater than sawm, therefore if fidya is given, either it is accepted by Allah as qadaa for the missed salah, otherwise they will get the reward of sadaqah.
Allamah al-Nasafi mentions the sadaqah given as precaution when the days of Eid are over as similar to giving fidya for salah. Sadaqah is made wajib if a person made oath to give a sheep to a poor person, or they bought a sheep and it died before being slaughtered. In both these cases the value of the sheep[22] should be given in sadaqah. Furthermore, if a sheep was bought for slaughter but the days of eid passed, then this sheep is still slaughtered as a precaution. All of these examples resemble the case mentioned regarding giving fidya for salah.
In the examples mentioned above it seems as though qadaa ghayr ma’qool is being acted upon when there is no shar’ee basis. Some argue that that which does not have explicit mention of qadaa in shariah does not have qadaa, and it is dropped after the time elapses, especially if it is ghayr ma’qool. They will say that as slaughtering is ghayr ma’qool i.e. it is the killing of animals, it is not permissible to do qadaa of it. The Ahnaf will say that the wujoob of giving sadaqah, either by giving the animal if it is available or its value in money if not, is given as a precaution not as qadaa. They hold that the reason we do slaughter is due to being the guests of Allah, and guests are fed the best of food, which is halal slaughtered meat according to Allah, therefore as long as the days of eid are present they slaughter. However, when the days of Eid are over, they resort to the asl, the asl being the sheep itself or its equivalent value. Therefore, if the animal is still alive one should slaughter it, and if not, they should give the equivalent value as sadaqah.
ومنها ضمان المغضوب بالمثل و هو السابق أو بالقيمة و ضمان النفس و الأطراف بالمال
And from it (the types of qadaa) is the compensation of the usurped item with its like, and that is preceding (i.e. what should be done first), or (to give compensation of the usurped item) with its price, and (also from qadaa is to give) the compensation for a person (killed) and (or whom ones) limbs (have been cut off) with money.
After mentioning the examples of qadaa related to the rights of Allah Allamah al-Nasafi now mentions examples of qadaa regarding the rights of people. If an item is taken away forcefully, then to give an equivalent back as compensation is an example of qadaa ma’qool, as it is only logical to return a likeness of what is taken. The reason this is qadaa and not adaa, is because the original item is not available, therefore a likeness must be given. For example, an item was taken and destroyed, then it is logical to replace this with a similar item.
Sometimes to pay the equivalent price of an item may also considered to be qadaa ma’qool. For example, if an item is taken and destroyed and it does not have an equivalent, or an item is taken which is not sold in the markets[23], then in these cases it is logical to compensate the loss with an equivalent monetary value. Therefore both, to replace with a likeness of the item or with its monetary value, are considered ma’qool. However, Allam al-Nasafi mentions و هو سابق to show that in the case where a likeness is found this should be given first, and only in the case where a likeness is not found should the monetary equivalent be given.
The last example mentioned is that of compensating with money in the case of a person who has been killed, or had their limbs[24] cut off. This is an example of qadaa ghayr ma’qool. This is because usually if a person is killed, qisas is ordained, which is the killing of the murderer. This is adaa. However, in the case of manslaughter, diyyah[25] is paid, which is qadaa. This is ghayr ma’qool (illogical) and is only established through external sources i.e. the Qur’an[26]. Furthermore, to give money as compensation for a limb is also ghayr ma’qool and is established through the hadith. According to the Ahnaf, the diyyah is 100 camels, 1000 dinars of gold or 10,000 dirhams of silver, in the case of manslaughter. This is the same for two legs or two eyes[27]. As for every finger 1/10 of the diyyah should be given.
وأداء القيمة فيما إذا تزوج علي عبد بغير عينه حتى تجبر على القبول كما لو أتاها بالمسمي
And (an example of qadaa is to do) adaa of the price (of the slave i.e.) when one marries upon (the condition that) a slave (will be given as mahr) without specifying ( a specific slave). To the extent that she will be forced to accept (the value of a slave as mahr) just like if he came to her with a named slave (specified as mahr).
An example of qadaa which resembles adaa is that when a man marries a woman by giving a slave as mahr. A specific slave is not specified, rather if he gives her an average slave then he will have done adaa according to the Ahnaf[28]. However, if he gives the equivalent value of an average slave, then this will be deemed qadaa in the meaning of adaa. Why is it qadaa? Because the actual slave isn’t being given rather a substitute for it i.e. its monetary equivalent. Why does it resemble adaa? Because when the slave has not been named it is not possible to do adaa except if a specific slave is mentioned[29]. This is because adaa is to give an exact likeness of what is expected, however there can be no definitive likeness to that which is unknown and has not been specified.
Furthermore, the Ahnaf allow this as they say the essence of the slave is known, but its characteristics are unknown. Therefore, in order to remove any possibility of argument between the husband and wife it is necessary to give an average slave, and this is only known by valuing the slave in monetary terms. Therefore, it is as if the value of the slave is the asl, and this is what is being given, thus it resembles adaa.
Furthermore, the woman will be forced to accept the mahr, if a monetary equivalent is given, for a slave of average quality. This is similar to the example of how the woman will be forced to accept the slave which was specified as mahr. Therefore, as she will be forced to accept when adaa is done i.e. the specified slave is given, and she is also forced to accept when an equivalent monetary value is given i.e. qadaa, this shows that it is qadaa in the meaning of adaa.
وعلي هذا قال أبو حنيفة في القطع ثم القتل عمدا للولي فعلهما
Upon this Imam Abu Hanifa says regarding (the) cutting (of limbs on purpose) then killing (of the same person) purposefully, it is for the wali (of the murdered to seek recompense for) both actions (the cutting and the killing).
Consider the case of a person who cuts the limb of another purposefully, and then before the injury has recovered, they murder[30] the person. Does this murderer need to compensate both for the cutting of the limb and the killing, or does compensation for killing suffice for both? The recompense for one who murders is qisas[31], whilst the recompense for the one who cuts a limb purposefully is to have the deed reciprocated[32]. If the actions are done by accident, then the recompense for the cutting of a hand is to pay half the diyyah (blood money), whilst the recompense for manslaughter is to pay the full diyyah.
There are eight possible scenarios in the above case. The one mentioned above[33] by Allamah al-Nasafi is scenario number 5. This is the only scenario where there is a difference of opinion. There is agreement in the madhab for all other scenarios listed below.
| Scenario | Cutting of hand was intentional | Injury recovers | Killing was intentional | Ruling | Reasoning |
| 1 | ✓ | ✓ | ✓ | Cut hand then qisas | As there was recovery after cutting, these will be considered two different crimes, therefore the punishments will not be combined |
| 2 | ✖️ | ✓ | ✖️ | Pay ½ diyyah then full diyyah | Same as above |
| 3 | ✓ | ✓ | ✖️ | Cut hand then pay full diyyah | Same as above |
| 4 | ✖️ | ✓ | ✓ | Pay half diyyah then qisas | Same as above |
| 5 | ✓ | ✖️ | ✓ | Sahibayn say qisas, Abu Hanifa says pay ½ diyyah then qisas | |
| 6 | ✖️ | ✖️ | ✖️ | Pay full diyyah | Combine both punishments |
| 7 | ✓ | ✖️ | ✖️ | Cut hand then pay full diyyah | Would have combined if possible, but cannot as they are of different types |
| 8 | ✖️ | ✖️ | ✓ | Pay ½ diyyah then qisas | Same as above |
The ruling of the case depends on whether the injury has recovered or not i.e. if the hand was cut and the injury recovers, then the subsequent killing will be treated as a separate crime. Therefore, the normal punishment as per shariah will be ordained. As for the case where the injury does not recover, then it is less clear cut and maybe deemed as though it is one continuous crime.
Therefore, if a person cuts another’s limb purposefully, and then before they recover from their injury they are murdered, should they; a) have their limb cut off, and then be given qisas or b) be given qisas, without having their limb cut off. As for Imam Abu Hanifa, he is of the view that the murderer should first have their limb cut off and then be given qisas. As for sahibayn[34] they are of the opinion that qisas suffices as punishment for both the murderers’ actions.
لا يضمن المثلي بالقيمة إذا انقطع المثل إلا يوم الخصومة
There is no compensation (given) for an item when it is damaged, except (that its market value is given) on the day the judgement is passed.
An item gets damaged at the hands of another. The item has been damaged or destroyed, and a similar item cannot be bought in the markets. According to Imam Abu Hanifa the item must be paid at its market value on the day the judge decides there should be compensation. Whereas according to Imam Abu Yusuf, the market value of the item on the day the item was taken should be paid. According to Imam Muhammad, the market value of the item should be paid at the time when the item ceases to be traded, and therefore cannot be bought anymore.
Imam Abu Hanifa holds that as long as judgement has not passed, it may be possible to buy an equivalent of the item. This is better, as to give a likeness of the item is preferred over giving its monetary equivalent. However as soon as the judge passes a ruling that the item must be compensated, it is necessary for the owner of the item to seek damages immediately, and it is at this moment where, as there is no equivalent, the market value of the item is paid. This is therefore the market value of the item on the day the ruling was passed by the judge.
و قلنا جميعا المنافع لا تضمن بالإتلاف و القصاص لا يضمن بقتل القاتل و ملك النكاح لا يضمن بالشهادة بالطلاق بعد الدخول
We say, all of us (Imam Abu Hanifa, Imam Muhammad and Imam Abu Yusuf), that benefits (which are gained) are not compensated by destruction (of the item), and qisas is not compensated by (the) killing (of) the murderer (by another person who is other than then wali), and the property of nikah is not compensated with testimony of divorce (by two other men) after consummation (of the marriage has occurred).
According to the Ahnaf, benefits are not compensated for.
[1] cf. Jami` at-Tirmidhi 149, Sunan Abi Dawud 393
[2] E.g. Maghrib, Isha
[3] Therefore one is not required to do sajdah tilawah
[4] This is different to a masbooq; one who joins the salah late. This will be considered adaa qasir.
[5] Due to hadath
[6] Either by means of entering their hometown i.e. to get water for wudhu, or by intending to stay in their current place for more than 15 days.
[7] So are termed masbooq i.e. one who joins the salah late
[8] E.g. the owner of the slave changes
[9] Umar made a deal with Zayd. Zayd has handed over the money. Normally it is binding on Umar to fulfill his part of the deal, i.e. to give Zayd the slave
[10] Providing the necessary evidence
[11] Umar will need to return any money Zayd gave him, if he does not hand over the slave.
[12] I.e. Bakr claiming the slave was his
[13] Adaa which resembles qadaa
[14] Qadaa which resembles adaa
[15] Quran 2:184
[16] Saa’ is a unit of measurement. According to Abu Hanifa and Imam Muhammad 1 saa’ is equivalent to 8 Iraqi ratl, whilst according to Imam Abu Yusuf 1 saa’ is equivalent to 5⅓ Iraqi ratl cf. Qudoori, Kitab al-Zakah, Bab Sadaqat al-Fitr
[17] Qudoori, Kitab al-sawm
[18] According to Imam Abu Yusuf, a person does not need to do qadaa of the missed takbeerat for salatul Eid in rukoo’. This is similar to why qiraat, which is wajib, is not repeated if missed, and why qunoot, which is also wajib, is not repeated if missed when one joins salatul witr in the last rukoo’. This is also the view of the Jamhoor.
[19] As raising the hands for takbeer, and placing one’s hand on the knees are both sunnah, the Ahnaf do not leave one in favour of the other, rather they stick to the default, which is to have the hands on the knees in rukoo’.
[20] This resemblance is both haqeeqatan and hukman. As for haqeeqatan then this is because rukoo’ is half of qiyam in terms of the body i.e. the lower half of the body remains the same whilst the top part changes. As for hukman, if a person joins the imam in rukoo’ it is the same as them having joined in qiyaam in the sense that nothing will need to be repeated at the end of the salah.
[21] The fidya for sawm is given per salah missed according to the majority of Ahnaf.
[22] Note it should be the value of the sheep which was bought that needs to be given, not the value of an average sheep.cf. Qamar al-aqmar
[23] But may be found in people’s homes
[24] This may be hands, legs, fingers, eyes etc.
[25] Blood money
[26] Quran 2:178
[27] As a person is no longer rendered to be independent
[28] However according to the Shawafi’ they say to give “a slave” as mahr will not be valid rather a slave will need to be specified.
[29] At the time of the agreement for mahr
[30] I.e. has an intent to kill, and it is not accidental as in the case of manslaughter.
[31] The right of the murder victims nearest relative / legal guardian to take the life of the murderer.
[32] I.e. also have their limb cut off
[33] I.e. the case where both the cutting and the killing were done on purpose and the first injury did not recover.
[34] Imam Muhammad and Imam Abu Yusuf
