អ៊ុមដាតុល រីអាយ៉ះ (ការពន្យល់ក្បួនច្បាប់វីកាយ៉ះ ហាណាហ្វី)

Then he proceeded after that with what the judge would do if the opponent was present, or not, and he said: (If they testify against a present opponent, he will rule on it[(2)], and write it down[(1)], which is the record[(2)]): That is, he ruled on the testimony, and he wrote down the ruling, and this written is the record, so he writes, “I ruled on that,” or it is proven to me, then this is a ruling.

(And if they testify against someone who is absent[(1)], he does not judge(2)[(3)], and he writes[(4)] with the testimony so that the one to whom it is written can rule [by it](1), and it is[(2)](3) the ruling book, and the book(4) of the judge to the judge, which is the transfer of the testimony in fact(5), and it is accepted(1) in what is not dropped by suspicion: that is, in what(2) except punishments and retaliation[(3)], (if he testifies to it as a debt to him[(4)]. And real estate, marriage, lineage, the usurped property, and the trust and speculation that are denied), for the trust and the money of speculation, if they are not denied (1), do not need the judge’s letter, and if they are denied, they become (2) usurped, and in the usurped case, (3) the value is required, which is a debt, and the ruling book applies to it, since there is no need for reference (4), but rather it is known by the attribute, unlike the transferred property [(5)], for it needs (6) to The reference, and this is according to Abu Hanifa - may God be pleased with him -, and likewise according to Abu Yusuf - may God be pleased with him - except in the case of a slave who has left, so it is accepted (7) in it.

He mentioned [in] (8) how it is done like this (9): The judge of Bukhara writes[(10)] to the judge of Samarkand: So-and-so and so-and-so testified before me that the slave of so-and-so, called the Blessed One, who wore such-and-such, was left from his owner and fell into the hands of so-and-so in Samarkand until the end of the letter, and he seals it[(1)]. When it reaches the judge of Samarkand, the opponent[(2)] will come with the slave and open it with his conditions. If not[(1)] He leaves it as he wrote, and if it is, then the opponent, if he goes [with the slave](1) to Bukhara, then with it. Otherwise, he delivers (2) the slave to the plaintiff, not on the basis of the judiciary, and he takes from him a guarantor for the soul of the slave, and puts something on his neck, and seals it to avoid alteration upon the testimony of witnesses, and writes to the judge of Bukhara a response to his letter, and that he sent the slave to him. If the letter reaches him, the witnesses who testified in the servant’s absence will be present. To bear witness in his presence, and point out to him that he is the property of the plaintiff, but he shall not judge; Because the opponent is absent, he then writes to the judge of Samarkand that the witnesses testified in his presence; Let the Samarkand judge rule against the opponent, and release the guarantor from his bail. (And on the authority of Muhammad - may God be pleased with him - his acceptance of what was conveyed and the later scholars agreed upon it[(3)] and not within the limits of fuel(4)[(5)].

It must [(1)] be read to those who testify to them, sealed...(2) with them, and delivered to them. Abu Yusuf - may God be pleased with him - did not stipulate any of that. [(3)] Imam Al-Sarkhasi (4) - may God be pleased with him - chose his saying (5). According to Abu Yusuf - may God be pleased with him - they testify that this is his book and his seal... (6), and on the authority of Abu Yusuf [(7) ] - may God be pleased with him - the seal is not a condition. I say: If the book is in the hands of the plaintiff, a fatwa is given that sealing is a condition, and if it is in the hands of witnesses, a fatwa is issued that it is not a condition.

(And if it is delivered to the person to whom it is written, he will not accept it[(1)] except in the presence of his opponent and with the testimony of [(2) [(1) the two men, or a man and two women. If they testify[(2)] that it is the letter of so-and-so judge, he reads it to us in his court, seals it, and delivers it to us[(3)], the judge opens and reads to the opponent and binds him to what (4) is in it[(5)] if its writer remains a judge, then it is invalidated[(6)] by his death And his dismissal [(1)] before his arrival [(2)], and likewise [(3) ] with the death of the person to whom it is written, unless he writes after his name: And to all the Muslim judges who reach him. According to Abu Yusuf - may God be pleased with him -: It is not a condition that he writes [after his name] (1) to (2) a specific judge, but rather it is sufficient that he writes first to all the Muslim judges who reach him; Because specifying the person to whom it is written is a useless restriction (3), (and if the opponent dies, it shall be executed against his heir[(4)).

[Chapter] (It is valid for a woman to make up for it[(1)] except in the case of fuel[(2)]); Because her testimony is not accepted in both of them, (and no judge appoints a successor [(3)], and no agent is appointed except to whom (1) delegates that (2), so in the delegate (3) his representative is not removed by his removal or death as a client, rather he is the representative of the principal), but he said as a client; Because in agency, the agent is isolated by the death of his client, so he wanted to state that the agent here is not isolated by the death of his client; Because in reality, he is not his representative, but rather he is the principal’s representative, and as for the judiciary, the representative is not removed by the death of the representative [on his behalf](4), so the principal(5) is mentioned specifically; Because there is no doubt about him and there is no doubt in the matter of judiciary, so he did not mention it, then he said: Rather, he is the representative of the original; In the case of power of attorney (6), it is removed by the death of the principal, but in the case of jurisprudence, it is not removed.

(And in other cases, if his representative [(1)] did it in his presence or he authorized it, or the amount of the price was in the agency, it is valid[(2)]): That is, in the case of someone other than the delegate, meaning if he did not delegate to the judge and the agent to appoint a third party as successor, then he appointed him, and the representative did so in the presence of the representative [on his behalf](3) it is valid; Because if he did it in his presence, then his action would be transmitted to him, and likewise if he did it in his absence and the news reached his representative, then he permitted it. Because if his opinion is added to that action, it becomes as if it were an action, and likewise if the first agent (4) estimated the price and proceeded with his agent; By estimating the price, his opinion was reached.

(And act according to your opinion, he appoints [others][(1)](2)): That is, if the principal says to the agent: Act according to your opinion, the agent has the right to appoint someone else.

(And the ruling of [(3)] another judge[(1)] proceeds in a disputed matter in the first ruling(2)[(3)] except what contradicts the Book(4)[(5)], or the well-known Sunnah[(6)], or consensus[(1)])(2): That is, if the judge rules and submits his ruling to another judge, he must sign it[(1)] unless:

Contrary to the Book, such as abandoning the name[(2)] intentionally, for it is contrary to the Almighty’s saying[(1)]: {And do not eat of that on which the name of God has not been mentioned}(2).

Or the well-known Sunnah: such as decreeing that a divorced woman should be dissolved three times by marrying the second husband without intercourse according to the doctrine of Saeed bin Al-Musayyab (1) - may God be pleased with him -[(2)], for it is contrary to the well-known Sunnah, which is his saying - may God’s prayers and peace be upon him -[(1)]: ((Not until you taste of his honey [and he tastes of your honey](2)))(3) Hadith.

Or according to consensus, such as ruling that women’s sexual intercourse is permissible [(1)]; Because the Companions unanimously agreed on its corruption.

The sum of this is that if the judge makes a ruling in a matter of jurisprudence, it becomes[(1)] unanimously agreed upon, and it is obligatory[(2)] for another judge to implement it, and this is a ruling according to his doctrine, but if he rules contrary to his doctrine, it will come, and the judge must know[(3)] the judge that the issue is disputed, and also this is if the subject of the judiciary is disagreed upon, but if the same judiciary is disagreed upon[(1)]: such as judging an absent person, then it becomes unanimously agreed upon[(2)]. After signing, if it is submitted to another judge, he must implement it.

(And regarding what the majority agreed upon (3), the disagreement of some is not considered [(4) ]): It was mentioned in the principles of jurisprudence: The scholars disagreed [(1) ] as to whether consensus is concluded by the agreement of the majority of diligent scholars or is it necessary for all to agree, so in ((Al-Hidaya))(1)[(2) ]: He chose that the agreement of the most is sufficient, so in the face of the agreement of the most, the disagreement of the few is not considered. In the books on the principles of jurisprudence (1): They favored this doctrine, which is that the disagreement of (2) the few versus the most is valid, as one of the Companions - may God be pleased with them - may have disagreed with the large crowd, and they did not say, “We are more than you” (3), but rather they considered his disagreement (4).

He also said in ((Al-Hidaya)): What is considered [(1)] is the disagreement in the first Sadr (2): that is, the Companions - may God be pleased with them - but what is more correct is that this is not a condition in order for [(3)] the disagreement of Al-Shafi’i - may God be pleased with him - to be considered.

(The ruling regarding the prohibition[(4)] or the permissibility(1) is carried out, whether apparent or hidden, even by false testimony if he claims it for a specific reason)(2), even if he claims a female slave as absolute property, and establishes false evidence on that and the judge rules that it is not permissible for [him](3) to have sexual intercourse with her unanimously; Because [(4)] kingship must [have] (5) a reason, and some are not better than others, it is not possible to prove a specific reason by which the solution can be proven.

(If (6) he establishes false evidence that he married her and rules against him, it is permissible for her to enable him [(7)])(1), this [(2)] is according to Abu Hanifa - may God be pleased with him -, and in both of them it is implemented outwardly: that is, the judge hands the wife over to the husband, and orders her to empower him, not secretly: that is, it is not established in what is between him and God Almighty, and their doctrine is apparent, and as for the doctrine of Abu Hanifa - may God be pleased with him - it is very problematic, how is it purely forbidden? It will be a reason for a solution between him and God Almighty. His answer: We did not make the purely forbidden, which is (1) false testimony in the sense that it is false information, a reason for dissolution. Rather, the judge’s ruling became like creating a new contract[(2)], and it is not forbidden, but rather it is obligatory. Because the judge is not aware of the lies of the witnesses.

(And the ruling[(1)] is made by someone who is diligent in it[(2)] contrary to his opinion(3)[(4)] forgetting his doctrine or intentionally, it is not implemented in both of them, and a fatwa is issued upon it(5), but according to Abu Hanifa - may God be pleased with him - if he forgets [his doctrine](1) it is implemented, and if he was intentional, then there are two narrations regarding it, and according to them it is not implemented in both cases; Because he ruled what was wrong in his opinion, and the fatwa is based on what they said.

(A judgment may not be made against an absentee[(2)][(1)] except in the presence of his representative[(2)] in fact: [such as an agent](1), or legally such as a judge’s guardian, or a ruling that what is claimed against the absent person is a reason for what is claimed against the present person), such as if he claims a house against a man that he bought it from so-and-so absent[(2)], and he establishes (3) evidence against the person in possession, then the judge rules with this evidence against both the present and the absent person, even if the absent person is present and denies that He turns to deny it.

(If (1) was a condition, it is not valid): That is, if (2) what was claimed against the absent person was a condition for what was claimed against the present, such as if a slave claimed against his master that he suspended his emancipation by divorcing his wife Zaid, and established evidence of the divorce due to Zaid’s absence, the sheikhs (3) - may God be pleased with him - disagreed about it, and what is correct [(4)] is that it is not accepted, but rather it is accepted for the reason without the condition; Because the reason (5) is fundamental in relation to the cause, so the present person is a representative of the one who has the reason, and he is the absent person like the agent, and this is not the case if it is a condition. Rather, he does not make up for the absent person in the form of a condition if it invalidates the right of the absent person. However, if it is not, then it is as if his wife’s divorce is conditional upon Zaid’s entry into the house, she will accept it (6).