Types of Adāʾ

Adāʾ can be split into two types: adāʾ maḥḍ and adāʾ which resembles qaḍāʾ. As for adāʾ maḥḍ, it is split into a further two types: adāʾ kāmil and adāʾ qāṣir.

Adāʾ maḥḍ is that which does not resemble qaḍāʾ in any way. Adāʾ kāmil is when adāʾ is done exactly as it has been ordained, and adāʾ qāṣir is to do adāʾ but not exactly as it has been ordained (and it does not resemble qaḍāʾ). Adāʾ which resembles qaḍāʾ is to do adāʾ in a different way to that which has been ordained, and therefore it resembles qaḍāʾ.

To do ṣalāh in jamāʿah (congregation) is an example of adāʾ kāmil. This is because this is how it has been ordained, as ṣalāh was only ordained with jamāʿah through the teaching of Jibrīl (ʿalayh al-salām)¹.

To do ṣalāh by oneself is an example of adāʾ qāṣir, as this is not how the command was ordained, and therefore it is slightly deficient. This can be seen in that it is wājib to pray loudly for ṣalāt al-jahr² when praying in jamāʿah. However, when praying individually it is not wājib to read loudly³, and therefore as it is not kāmil (i.e. not being carried out as ordained), it is considered to be adāʾ qāṣir.

The lāḥiq⁴ is that person who started with the imām, then as they were required to do wuḍūʾ, they broke off their ṣalāh with the imām, did wuḍūʾ, and then completed their ṣalāh after the imām had finished. Therefore, as the person completed their ṣalāh within the waqt for ṣalāh, this will be considered adāʾ. Furthermore, it resembles qaḍāʾ as the person did not complete their ṣalāh as it was ordained.

One of the effects of this being adāʾ which resembles qaḍāʾ is that if the person started their ṣalāh with the imām as a musāfir, and then upon breaking their ṣalāh⁵ became a muqīm⁶, then when they return to complete their ṣalāh and find that the imām has finished, they will still need to complete their two rakʿah, provided they have not talked to anyone. Therefore, the obligation of their ṣalāh does not change; even though they have become muqīm they will need to complete two rakʿah. Whereas if they talked in between, or found the imām⁷, then when completing this ṣalāh they will need to do four rakaʿāt.

After ʿAllāmah al-Nasafī mentions the examples of adāʾ in terms of the rights of Allah, he mentions examples with respect to the rights of people. An example of adāʾ kāmil 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 adāʾ qāṣir 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 who 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 adāʾ qāṣir. Furthermore, if the defect occurred 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).

This is an example of adāʾ which resembles qaḍāʾ in terms of ḥuqūq al-ʿibād. 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 ʿĀʾishah in exchange for ʿUmar's slave as mahr. ʿĀʾishah accepts the offer. After the marriage ceremony, Zayd buys ʿUmar's slave and gives him to ʿĀʾishah. Technically, Zayd did exactly what he promised. This is fulfilment, therefore adāʾ has been done. However, if we look deeper, Zayd did not actually fulfil his promise. He did not give ʿĀʾishah ʿUmar's slave; rather he gave her his slave. This is because after he bought ʿUmar's slave, it ceased to be ʿUmar'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 qaḍāʾ. In short, Zayd fulfilled his promise as expected (adāʾ), but it also resembles qaḍāʾ as he did not give her ʿUmar's slave, rather his slave.

We know that this is adāʾ, 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 qaḍāʾ. 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 qaḍāʾ 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 nikāḥ, if the nature⁸ of the mahr changes somewhat, it does not nullify or invalidate the marriage.

Scenario: ʿUmar sells his slave to Zayd⁹. Bakr comes along and says that the slave belongs to him¹⁰. ʿUmar then buys the slave from Bakr. Now even though ʿUmar made a deal with Zayd to sell him the slave, ʿUmar will not be forced to sell to Zayd¹¹. This is because as soon as there was istiḥqāq¹², 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 ʿUmar, the original transaction between ʿUmar and Zayd would have been invalid.

Furthermore, the example resembles qaḍāʾ 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 an 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 adāʾ which resembles qaḍāʾ? Why do we not say it is qaḍāʾ which resembles adāʾ? Are both the same thing?

Answer: We know that this is a case of adāʾ resembling qaḍāʾ 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 adāʾ shabīhan bi al-qaḍāʾ¹³, and not qaḍāʾ shabīhan bi al-adāʾ¹⁴.

After describing the types of adāʾ, ʿAllāmah al-Nasafī now expands on the types of qaḍāʾ. Qaḍāʾ is to carry out a likeness of adāʾ. Qaḍāʾ can be split into two types: qaḍāʾ maḥḍ and qaḍāʾ in the meaning of adāʾ. As for qaḍāʾ maḥḍ, it is split into a further two parts: qaḍāʾ maʿqūl and ghayr maʿqūl. Therefore, making three parts in total.

As for qaḍāʾ maḥḍ, it is that which is not in the meaning of adāʾ primarily, neither in reality nor in ruling. As for qaḍāʾ in the meaning of adāʾ, it is the opposite of qaḍāʾ maḥḍ such that it encompasses the meaning of adāʾ. Examples of all three types will follow.

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 qaḍāʾ maʿqūl. This is an example of the first type of qaḍāʾ.

The second example of qaḍāʾ is to give fidyah as qaḍāʾ for a missed fast. This will be considered ghayr maʿqūl as it is not logical to give money as compensation for a missed fast. This qaḍāʾ is not the logical equivalent and is only known through sharīʿah; ﴿وَعَلَى الَّذِينَ يُطِيقُونَهُ فِدْيَةٌ طَعَامُ مِسْكِينٍ﴾¹⁵. The fidyah for every missed fast is to give a poor person half a ṣāʿ¹⁶ of wheat, or one ṣāʿ of dates or one ṣāʿ of barley¹⁷. Therefore, as fasting is the abstention from food, and fidyah is the providing of food, it seems illogical for one to substitute the other, and therefore is ghayr maʿqūl.

The final example given here is the example of qaḍāʾ which resembles adāʾ. That is the example of the person who joins the ṣalāh of Eid while the imām is in rukūʿ. This person will have missed the three extra takbīr which are done at the beginning of Eid ṣalāh. According to Imām Abū Ḥanīfah this person will need to make qaḍāʾ of the missed takbīr in the rukūʿ¹⁸. They would do this by doing the takbīr for taḥrīmah, then the takbīr for rukūʿ, and then whilst in rukūʿ do the three extra takbīrāt. This is because rukūʿ is farḍ and takbīr is wājib; therefore the two actions are combined in rukūʿ. Furthermore, they should do these takbīrāt without raising the hand¹⁹. This is qaḍāʾ, as it is a repeating of the initial missed action, which was the missed takbīrāt. On the other hand, it resembles adāʾ, as rukūʿ resembles qiyām²⁰.

According to the Aḥnāf there is fidyah for ṣalāh²¹. This will be the case when a person is dying and they order that fidyah is paid as qaḍāʾ for their missed ṣalāh. This seems strange, as fidyah is qaḍāʾ ghayr maʿqūl, and although there is evidence from the Qurʾān for the giving of fidyah for missed fasts, there is no such evidence from ḥadīth or Qurʾān to give fidyah as qaḍāʾ for a missed ṣalāh. Furthermore, it is well established that there is no possibility for qiyās when it comes to matters of ʿibādah. ʿAllāmah al-Nasafī answers that fidyah is given as a precaution. This is because ṣalāh can be considered to be greater than ṣawm; therefore if fidyah is given, either it is accepted by Allah as qaḍāʾ for the missed ṣalāh, otherwise they will get the reward of ṣadaqah.

ʿAllāmah al-Nasafī mentions the ṣadaqah given as precaution when the days of Eid are over as similar to giving fidyah for ṣalāh. Ṣadaqah is made wājib if a person made an 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 sheep²² should be given in ṣadaqah. 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 fidyah for ṣalāh.

In the examples mentioned above it seems as though qaḍāʾ ghayr maʿqūl is being acted upon when there is no sharʿī basis. Some argue that that which does not have explicit mention of qaḍāʾ in sharīʿah does not have qaḍāʾ, and it is dropped after the time elapses, especially if it is ghayr maʿqūl. They will say that as slaughtering is ghayr maʿqūl (i.e. it is the killing of animals), it is not permissible to do qaḍāʾ of it. The Aḥnāf will say that the wujūb of giving ṣadaqah, either by giving the animal if it is available or its value in money if not, is given as a precaution, not as qaḍāʾ. 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 ḥalāl-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 aṣl, the aṣl 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 ṣadaqah.

After mentioning the examples of qaḍāʾ related to the rights of Allah, ʿAllāmah al-Nasafī now mentions examples of qaḍāʾ regarding the rights of people. If an item is taken away forcefully, then to give an equivalent back as compensation is an example of qaḍāʾ maʿqūl, as it is only logical to return a likeness of what is taken. The reason this is qaḍāʾ and not adāʾ 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 be considered to be qaḍāʾ maʿqūl. 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 markets²³, 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 maʿqūl. However, ʿAllāmah al-Nasafī 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 limbs²⁴ cut off. This is an example of qaḍāʾ ghayr maʿqūl. This is because usually if a person is killed, qiṣāṣ is ordained, which is the killing of the murderer. This is adāʾ. However, in the case of manslaughter, diyah²⁵ is paid, which is qaḍāʾ. This is ghayr maʿqūl (illogical) and is only established through external sources, i.e. the Qurʾān²⁶. Furthermore, to give money as compensation for a limb is also ghayr maʿqūl and is established through the ḥadīth. According to the Aḥnāf, the diyah is 100 camels, 1000 dīnārs of gold or 10,000 dirhams of silver, in the case of manslaughter. This is the same for two legs or two eyes²⁷. As for every finger, 1/10 of the diyah should be given.

An example of qaḍāʾ which resembles adāʾ is 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 adāʾ according to the Aḥnāf²⁸. However, if he gives the equivalent value of an average slave, then this will be deemed qaḍāʾ in the meaning of adāʾ. Why is it qaḍāʾ? Because the actual slave isn't being given, rather a substitute for it (i.e. its monetary equivalent). Why does it resemble adāʾ? Because when the slave has not been named it is not possible to do adāʾ except if a specific slave is mentioned²⁹. This is because adāʾ 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 Aḥnāf 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 aṣl, and this is what is being given; thus it resembles adāʾ.

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 adāʾ 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. qaḍāʾ), this shows that it is qaḍāʾ in the meaning of adāʾ.

Consider the case of a person who cuts the limb of another purposefully, and then before the injury has recovered, they murder³⁰ 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 qiṣāṣ³¹, whilst the recompense for the one who cuts a limb purposefully is to have the deed reciprocated³². If the actions are done by accident, then the recompense for the cutting of a hand is to pay half the diyah (blood money), whilst the recompense for manslaughter is to pay the full diyah.

There are eight possible scenarios in the above case. The one mentioned above³³ by ʿAllāmah al-Nasafī is scenario number 5. This is the only scenario where there is a difference of opinion. There is agreement in the madhhab for all other scenarios listed below.

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 sharīʿah will be ordained. As for the case where the injury does not recover, then it is less clear-cut and may be 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 qiṣāṣ, or b) be given qiṣāṣ, without having their limb cut off? As for Imām Abū Ḥanīfah, he is of the view that the murderer should first have their limb cut off and then be given qiṣāṣ. As for Ṣāḥibayn³⁴ they are of the opinion that qiṣāṣ suffices as punishment for both the murderer's actions.

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 Imām Abū Ḥanīfah the item must be paid at its market value on the day the judge decides there should be compensation. Whereas according to Imām Abū Yūsuf, the market value of the item on the day the item was taken should be paid. According to Imām Muḥammad, the market value of the item should be paid at the time when the item ceases to be traded, and therefore cannot be bought any more.

Imām Abū Ḥanīfah 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.

According to the Aḥnāf, benefits are not compensated for.