A Comparative Research on the Principles of ‘Alā al-yad and Al-kharāj and the Genealogy of their Narrational Chain of Transmission
Journal Title: فقه و اصول - Year 2017, Vol 49, Issue 108
Abstract
The evidence of legal rules is sometimes a tradition with different impression, sometimes it is of Sh‘īa origin, sometimes of Sunnī origin, and sometimes sharing both Shī‘a and Sunnī. With a brief explanation of the principles of ‘alā al-yad (owning an object by having it at one’s disposal), kharāj (tribute), “assessment of significance”, and the “genealogy” of the hadith, ‘alā al-yad mā akhadhat ḥattā tu’addiya (It is incumbent upon man to give back what is at one’s disposal) and kharāj bi al-ḍāmān (tribute by surety) from the two major sects (Sunnī and Shī‘a), the present article explores into and researches about the origin of these two hadiths. The renowned majority of the Sunnī and Shī‘a jurists consider the principle of ‘alā al-yad applicable to sound contract, the benefits of mustawfāt (secondary benefits) and non-mustaqfāt of corrupt contract, and misappropriation; and do not consider the principle of kharāj applicable corrupt contract and misappropriation. Ibn Ḥamza from among the Shī‘as and Abū Ḥanīfa and Abū Yūsuf from among the Sunnīs consider kharāj as included in corrupt contract and misappropriation. The writer presumes surety (ḍamān) in the two principles as homonyms and the relation between the two as divergent and, like the Shī‘a jurists, finds the hadith “It is incumbent upon man to give back what is at one’s disposal” and “tribute by surety” to be of Sunnī origin. Furthermore, by providing the time these two hadiths entered the Shī‘a sources and the motivation for relying on them, he (the writer) considers as inefficient the most outstanding narrative reasons for the principles ‘alā al-yad and kharāj for the Shī‘a jurists and just to be presumed as confirming other reasons.
Authors and Affiliations
Hadi Mesbah, Husayn Saberi
Keywords
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- EP ID EP191169
- DOI 10.22067/fiqh.v0i0.27063
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