Types of Adāʾ

Adāʾ divides in two: adāʾ maḥḍ, and adāʾ which resembles qaḍāʾ. Adāʾ maḥḍ in turn divides into adāʾ kāmil and adāʾ qāṣir.

Adāʾ maḥḍ is adāʾ that does not resemble qaḍāʾ in any way. Adāʾ kāmil is to perform adāʾ exactly as it has been ordained; adāʾ qāṣir is to perform adāʾ otherwise than as ordained, where the divergence does not extend to resembling qaḍāʾ. Adāʾ which resembles qaḍāʾ is to perform adāʾ in a manner different from the ordained, in such a way that the performance takes on a likeness to qaḍāʾ.

To pray ṣalāh in jamāʿah (congregation) is an example of adāʾ kāmil, since this is how ṣalāh was ordained: it was instituted with jamāʿah through the teaching of Jibrīl (ʿalayh al-salām)¹.

To pray alone is an example of adāʾ qāṣir, since this is not the ordained form, and so the performance is slightly deficient. The deficiency shows in such details as the requirement to recite aloud in ṣalāt al-jahr² when praying in jamāʿah, while the worshipper praying alone is not bound to recite aloud³; failing to be kāmil, the performance counts as adāʾ qāṣir.

The lāḥiq⁴ is a worshipper who began with the imām, broke off from the ṣalāh to perform wuḍūʾ, and then completed his ṣalāh after the imām had finished. Since he completed it within the waqt, the performance counts as adāʾ; since he did not complete it as ordained, it resembles qaḍāʾ.

One consequence of its being adāʾ-resembling-qaḍāʾ: if the worshipper began with the imām as a musāfir, then on breaking off from his ṣalāh⁵ became a muqīm⁶, when he returns and finds the imām has finished, he completes only the two rakʿah, provided he has not spoken to anyone. The obligation does not change: even though he has become muqīm, he completes two rakʿah. If he spoke in the interval, or if he found the imām⁷, he must then complete four rakaʿāt.

After ʿAllāmah al-Nasafī sets out the examples of adāʾ in the rights of Allāh, he turns to examples in the rights of people. An example of adāʾ kāmil is to seize a slave by force and return him exactly as taken, with no defects and unburdened by any crime. An example of adāʾ qāṣir is to seize a slave by force and return him with a defect (such as an injured arm), or burdened by a crime, since compensation must then be paid and the slave is returned in a state different from the original. If the defect occurred through an external cause beyond the looter's control, the looter is not liable for it (the looter cannot, for instance, be held responsible for a crime committed by the slave).

This is an example of adāʾ which resembles qaḍāʾ in ḥuqūq al-ʿibād. The case is that of a man stipulating someone else's slave as mahr for marriage.

Scenario: Zayd offers marriage to ʿĀʾishah on the terms that ʿUmar's slave will be given as mahr. ʿĀʾishah accepts. After the marriage ceremony, Zayd buys the slave from ʿUmar and hands him to ʿĀʾishah. Technically, Zayd has done what he promised, that is, fulfilment, and so adāʾ. Yet looked at more closely, Zayd did not give ʿĀʾishah ʿUmar's slave; he gave her his own slave, since on purchase the slave ceased to be ʿUmar's and became Zayd's, even though he is the same man. Zayd has not delivered exactly what he promised, but its equivalent; the performance therefore resembles qaḍāʾ. Zayd has fulfilled the agreement (adāʾ), but the manner of fulfilment carries a likeness to qaḍāʾ.

We know this is adāʾ because the woman is bound to accept the named slave as mahr when he is handed over. Having agreed to take the slave as mahr, she cannot refuse him after the purchase. If she could refuse, the performance would be qaḍāʾ, not adāʾ. The case is similar to one in which the husband gives the equivalent value of the slave as mahr rather than the slave himself; there the performance is qaḍāʾ and the wife may refuse.

This differs from a normal sale, where a change in the nature of the item being sold invalidates the transaction. In nikāḥ, by contrast, a partial change in the nature⁸ of the mahr does not nullify the marriage.

Scenario: ʿUmar sells his slave to Zayd⁹. Bakr appears and claims that the slave is in fact his¹⁰. ʿUmar then buys the slave from Bakr. Even though ʿUmar made an agreement with Zayd to sell him the slave, ʿUmar is not now bound to deliver to Zayd¹¹; for as soon as istiḥqāq¹² arose, the transaction was suspended pending Bakr's permission to sell his slave. Had Bakr refused to sell to ʿUmar, the original transaction between ʿUmar and Zayd would have been invalid.

The example resembles qaḍāʾ in a further respect: if the husband freed the slave before handing him over as mahr, the manumission would take effect, since he is the slave's owner from the moment of purchase. Even though he has sworn to deliver the slave as mahr, the wife cannot free the slave while the slave is still in her husband's possession. She becomes owner only on receipt of the slave as mahr, and only then can she free him if she wishes.

Question: how do we know this is adāʾ resembling qaḍāʾ, rather than qaḍāʾ resembling adāʾ? Are the two not the same?

Answer: We know this is adāʾ resembling qaḍāʾ because the original entity and obligation remain the same, while the description changes. The slave himself has not changed; what has changed is who owns him. The original being more deserving of recognition, we name the case adāʾ shabīhan bi al-qaḍāʾ¹³, not qaḍāʾ shabīhan bi al-adāʾ¹⁴.

Having described the types of adāʾ, ʿAllāmah al-Nasafī now expands on the types of qaḍāʾ. Qaḍāʾ is to perform a likeness of adāʾ, and divides in two: qaḍāʾ maḥḍ, and qaḍāʾ in the meaning of adāʾ. Qaḍāʾ maḥḍ in turn divides into qaḍāʾ maʿqūl and ghayr maʿqūl, giving three parts in all.

Qaḍāʾ maḥḍ is qaḍāʾ which is not in the meaning of adāʾ, neither in reality nor in ruling. Qaḍāʾ in the meaning of adāʾ is its opposite: it encompasses the meaning of adāʾ. Examples of all three follow.

When a person misses a fast and must make it up, the only logical compensation is another fast. This is the logical equivalent and so counts as qaḍāʾ maʿqūl. It is the first type of qaḍāʾ.

The second example is to give fidyah as qaḍāʾ for a missed fast. This counts as ghayr maʿqūl, since it is not logical to give money as compensation for a missed fast. The compensation is not the logical equivalent and is known only through sharīʿah; ﴿وَعَلَى الَّذِينَ يُطِيقُونَهُ فِدْيَةٌ طَعَامُ مِسْكِينٍ﴾¹⁵. The fidyah for each missed fast is to give a poor person half a ṣāʿ¹⁶ of wheat, or one ṣāʿ of dates, or one ṣāʿ of barley¹⁷. Since fasting is abstention from food, while fidyah is the provision of food, it appears illogical for the one to substitute the other; hence ghayr maʿqūl.

The third example is qaḍāʾ resembling adāʾ: a worshipper who joins the ṣalāh of Eid while the imām is in rukūʿ has missed the three additional takbīr at the beginning of Eid ṣalāh. Imām Abū Ḥanīfah holds that he must make qaḍāʾ of the missed takbīr in rukūʿ¹⁸: he says the takbīr for taḥrīmah, then the takbīr for rukūʿ, and then in rukūʿ adds the three additional takbīrāt, since rukūʿ is farḍ and takbīr is wājib, allowing both actions to combine in rukūʿ. He should perform these takbīrāt without raising his hands¹⁹. The performance counts as qaḍāʾ because it repeats the missed action; it resembles adāʾ because rukūʿ resembles qiyām²⁰.

The Aḥnāf hold that fidyah may be given for ṣalāh²¹, the case being that of a dying person who orders fidyah to be paid as qaḍāʾ for his missed ṣalāh. The provision seems strange: fidyah is qaḍāʾ ghayr maʿqūl, and while there is Qurʾānic warrant for fidyah in place of missed fasts, neither Qurʾān nor ḥadīth supplies one for missed ṣalāh; further, qiyās is established to have no purchase in matters of ʿibādah. ʿAllāmah al-Nasafī answers that the fidyah is given as a precaution. Ṣalāh may be reckoned greater than ṣawm, so that paying fidyah either is accepted by Allāh as qaḍāʾ for the missed ṣalāh, or, failing that, earns the reward of ṣadaqah.

ʿAllāmah al-Nasafī then sets the precautionary ṣadaqah that follows the days of Eid as a parallel to fidyah for ṣalāh. Ṣadaqah becomes wājib when a man has sworn to give a sheep to a poor person, or has bought a sheep and it has died before slaughter; in both cases the value of the sheep²² is given as ṣadaqah. If a sheep has been bought for slaughter and the days of Eid have passed, that sheep is still slaughtered as a precaution. All these cases bear on the giving of fidyah for ṣalāh.

In the cases above, qaḍāʾ ghayr maʿqūl appears to be acted upon without sharʿī basis. Some object that what has no explicit warrant for qaḍāʾ in the sharīʿah has no qaḍāʾ at all, and that the obligation lapses once the time elapses, all the more if it is ghayr maʿqūl; on this view, slaughter being ghayr maʿqūl (the killing of animals), no qaḍāʾ of it is permitted. The Aḥnāf reply that the wujūb of ṣadaqah (by giving the animal if it is available, otherwise its value in money) is given as a precaution, not as qaḍāʾ. They hold that we slaughter because we are guests of Allāh, and guests are fed the best of food, which is ḥalāl-slaughtered meat in Allāh's reckoning; so long as the days of Eid are present, the slaughter is performed. Once the days of Eid have passed, recourse is taken to the aṣl, the sheep itself, or its equivalent value. If the animal is alive, it is slaughtered; if not, its value is given as ṣadaqah.

Having set out the examples of qaḍāʾ in the rights of Allāh, ʿAllāmah al-Nasafī now turns to examples in the rights of people. When an item is taken by force, returning a like for it is an example of qaḍāʾ maʿqūl, since the only logical compensation is a likeness of what was taken. The case is qaḍāʾ rather than adāʾ because the original is no longer available; a likeness must therefore be given. An item taken and destroyed, for instance, is logically replaced with a similar item.

Sometimes paying the item's equivalent price also counts as qaḍāʾ maʿqūl. If an item is taken and destroyed and has no equivalent, or is not sold in the markets²³, the loss is logically compensated through monetary value. Both replacement with a like, and replacement with monetary value, are maʿqūl. ʿAllāmah al-Nasafī's phrase و هو سابق makes the order plain: where a like is found, it is given first; only where no like is found does the monetary equivalent take its place.

The last example is the compensation in money for the killing of a person, or the cutting off of his limbs²⁴. This is qaḍāʾ ghayr maʿqūl. Killing ordinarily attracts qiṣāṣ (the killing of the murderer), which is adāʾ; in manslaughter, diyah²⁵ is paid, which is qaḍāʾ. The compensation is ghayr maʿqūl (illogical) and is established only through external sources, that is, the Qurʾān²⁶. Compensation in money for a limb is likewise ghayr maʿqūl and is established through ḥadīth. The Aḥnāf set the diyah at 100 camels, 1,000 dīnārs of gold, or 10,000 dirhams of silver in cases of manslaughter (the same for two legs or two eyes²⁷), and 1/10 of the diyah for each finger.

An example of qaḍāʾ resembling adāʾ: a man marries a woman with a slave as mahr, without specifying which slave. If he gives her an average slave, he has done adāʾ on the Aḥnāf view²⁸. If he gives the equivalent value of an average slave, the performance counts as qaḍāʾ in the meaning of adāʾ. Why qaḍāʾ? Because no actual slave has been given, only a substitute (the monetary equivalent). Why does it resemble adāʾ? Because where the slave has not been named, adāʾ is not possible save by specifying a particular slave²⁹: adāʾ is to give an exact likeness of what is expected, and there can be no definitive likeness of what is unknown and unspecified.

The Aḥnāf permit this because the essence of the slave is known while the characteristics are not. To remove any ground for dispute between husband and wife, an average slave must be given, and that is determined only by valuing the slave in monetary terms. The value of the slave thus stands as the aṣl; what is given is that, and so the performance resembles adāʾ.

The wife is bound to accept the mahr when the monetary equivalent of an average slave is given, just as she is bound to accept the named slave specified as mahr. Acceptance is compelled both when adāʾ has been done (the specified slave is given) and when its monetary equivalent is given (i.e. qaḍāʾ); the case is qaḍāʾ in the meaning of adāʾ.

Consider the case of a man who cuts another's limb on purpose, and then, before the injury has healed, murders³⁰ him. Must the murderer compensate both for the cutting and for the killing, or does compensation for the killing suffice for both? The recompense for murder is qiṣāṣ³¹; the recompense for the deliberate cutting of a limb is reciprocal cutting³². If the actions are accidental, the recompense for cutting a hand is half the diyah (blood money), and the recompense for manslaughter is the full diyah.

Eight scenarios are possible. The one mentioned by ʿAllāmah al-Nasafī³³ is scenario 5, the only scenario where there is disagreement. The remaining scenarios are agreed in the madhhab.

The ruling depends on whether the injury has healed: if the hand was cut and the injury healed, the subsequent killing is treated as a separate crime, and the normal punishment under sharīʿah is ordained. Where the injury has not healed, the case is less clear-cut and may be reckoned as a single continuous crime.

If, then, a man cuts another's limb on purpose and murders him before the injury heals, should he (a) have his limb cut off, and then receive qiṣāṣ, or (b) receive qiṣāṣ alone, without having his limb cut off? Imām Abū Ḥanīfah holds that the murderer's limb should first be cut off and that he should then receive qiṣāṣ. The Ṣāḥibayn³⁴ hold that qiṣāṣ alone suffices as punishment for both actions.

An item is damaged at the hands of another. The item has been damaged or destroyed, and a similar item cannot be bought in the markets. Imām Abū Ḥanīfah holds that the item should be paid at its market value on the day the judge passes the ruling. Imām Abū Yūsuf holds that the market value on the day the item was taken should be paid. Imām Muḥammad holds that the market value should be paid at the time when the item ceases to be traded, after which it can no longer be bought.

Imām Abū Ḥanīfah's reasoning: as long as judgement has not passed, an equivalent of the item may still be available for purchase. A like of the item is preferred over its monetary equivalent. Once the judge rules that the item must be compensated, the owner must seek damages without delay; at that moment, no equivalent being available, the market value of the item is paid. The relevant value, accordingly, is the market value on the day of the ruling.

The Aḥnāf hold that benefits are not compensated for.