2877. The validity of such a transaction is contingent upon substantiating a right for the lessee. Such a right is not substantiated by merely renting a place of residence or a place of work, even if it is leased for a long period, nor is it substantiated by the type of work or business or the character of the lessee, which may cause an increase in the value or the demand of the leased area.
This is regardless of whether the common understanding or the governmental laws consider the lessee to reserve a right. It will not be consequential in this case. Hence, upon the completion of the lease period, it is forbidden upon the lessee to exercise any discretion over the leased item itself, and any control that he exercises over the item itself or its profits will be considered a discretion of hostility and liability. In addition, renting out the property itself will be un-commissioned, and will be void without the consent of the owner.
It is possible to substantiate a right according to the shari’a by stipulating a legal conditional. For example, they may stipulate within the lease agreement—regardless of whether the lessor receives payment for the condition or not—that upon the completion of the lease period, the lessor will lease the area to the lessee or a person appointed by the lessee for the same amount. The same will apply to every lessee who has been appointed by the previous lessee.
In this case, owing to the rights afforded by these conditions, the lessee can choose to take the key money and vacate the place, and the lessor, owing to his duty to fulfill the condition (stipulated in the lease), does not have the right to refuse to lease the property to the principal lessee, or someone appointed by him, or any lessee appointed by the previous lessee.
2878. If it has been stipulated within the lease agreement that the lessee may retain the leased area for as long as he likes by renewing the lease for the same amount, then he may acquire key money in return for vacating the place, even though the lessor is not mandated to lease the place to the one who pays the key money.
2879. According to the rulings of non-Shi’a scholars, except for a few of them, the presence of a witness is a condition for the validity of a marriage. The Hanafis, Shafi’is and Hanbalis consider it to be necessary at the time of pronouncing the formal expressions of marriage. As for the Malikis, they expand the time frame to the moment before consummation. This condition however is not consequential in the view of the Shi’i scholars.
Hence if a non-Shi’a individual who follows the view of the majority of scholars from amongst them, contracts a marriage without the presence of a witness, the marriage will be void in accordance to his own denomination, and the woman will not become his wife. In this case, a Shi’a man may—according to the principle of ilz¡m—marry that woman.
2880. According to the rulings of non-Shi’a scholars, it is not permissible for a person to marry a lady and her paternal aunt, or a lady and her maternal aunt, and may only marry one of them. Hence if the marriages are contracted simultaneously, both the marriages will be void. If they are not contracted simultaneously, then the second one will be void. However, according to Shi’a scholars, it is permissible to marry both at one time with the permission of the paternal and maternal aunt, respectively.
Hence, if the follower of the non-Shi’a denomination simultaneously marries a lady and her paternal aunt, or marries a lady and her maternal aunt, the marriage contract with both of them is void according to his own denomination. A follower of the Shi’a denomination may marry either one of them based on the principle of ilz¡m. However, if the marriage is not contracted simultaneously, a follower of the Shi’a denomination may marry the second lady.
2881. According to non-Shi’a denominations, in the divorce of a y¡’isah or a non-b¡ligh girl, who has consummated her marriage, it is mandatory upon the divorced lady to observe the ‘iddah. It should be noted that some of the non-Shi’a denominations have made some distinctions in the case of a non-b¡ligh girl. However, in accordance to the Shi’a denomination, it is not necessary for a y¡’isah or a non-b¡ligh girl to observe an ‘iddah.
Therefore, according to non-Shi’a denominations, they are obligated to observe the rules of ‘iddah. However, if a y¡’isah or a non-b¡ligh girl converts to shi’ism, it will not be obligatory on her to observe the ‘iddah. In the event that her divorce is revocable, it is permissible for her to demand her nafaqah (financial support) for the period of her ‘iddah from her ex-husband who is not a Shi’a. It is also permissible for her to marry another person during that period.
Similarly, if a non-Shi’a individual converts to shi’ism, he may marry the sister of his divorced wife who is a y¡’isah or a non-b¡ligh girl, even though she may still be in the period of her ‘iddah in accordance to non-Shi’a denominations. It will not be necessary for him to observe the precepts of ‘iddah in this case.
2882. If a person who belongs to a non-Shi’a denomination divorces his wife without the presence of two just witnesses, or divorces a part of his wife’s body, such as her finger, then such a divorce will be valid according to his denomination. However, according to the Shi’a denomination, such a divorce is not valid. Therefore, a Shi’a individual may marry the divorced lady upon the completion of her ‘iddah in accordance with the principle of ilz¡m.
2883. If a non-Shi’a individual divorces his wife who is in the state of ¦ay¤, or divorces her during the period of purity from ¦ay¤ wherein he has had intercourse with her, then such a divorce will be valid according to his denomination. However, according to the Shi’a denomination, such a divorce is not valid. Therefore, in accordance with the principle of ilz¡m, he may marry the woman upon the completion of her ‘iddah.
2884. According to the Hanafi denomination, and some other non-Shi’a jurisprudents, if a person divorces his wife under duress or compulsion, the divorce will nonetheless be valid. However, according the Shi’a denomination, such a divorce is not valid. Therefore, in accordance with the principle of ilz¡m, a Shi’a individual may marry a lady who has been divorced by her husband who was acting under duress or compulsion, in the event that she follows the Hanafi denomination or those who share the same views as them (in this issue).
2885. If a non-Shi’a individual takes an oath not to perform a particular task, and should he do so, his wife would be divorced, and then goes on to perform that task, his wife will be divorced according to his denomination. However, according to the Shi’a denomination, an oath cannot effect a divorce. However, in accordance with the principle of ilz¡m, it is permissible for a Shi’a individual to marry the lady upon the completion of her ‘iddah.
Similarly, according to non-Shi’a denominations, it is permissible to divorce a lady in writing. However, according to the Shi’a denomination, a divorce cannot be realized in writing. However, in accordance with the principle of ilz¡m, a Shi’a individual may marry a lady who has been divorced in writing upon the completion of her ‘iddah.
2886. According to the legal ruling issued by Abu Hanifah, as narrated by Ibn Quddamah, if a person buys an item without seeing it, based on the description given by the seller, and later sees it, he reserves the option of observation, even if the item matches the description of the seller. However, according to the Shi’a denomination, he does not reserve the option of observation in this case. Therefore, if a Shi’a buys an item from a follower of the Hanafi denomination based on the description provided by the seller, and later sees it, the Shi’a will reserve the right of observation in accordance to the principle of ilz¡m.
2887. In the Hanafi and Shafi’i denominations, as narrated by Ibn Quddamah in the text al-Mughniyy, if a person sustains a loss in a transaction, he does not reserve the option of ghabn . Therefore if a Shi’a buys an item from a person of the Hanafi or Shafi’i denomination, and it transpires that the seller has sustained a loss, then in accordance with the principle of ilz¡m, the Shi’a may nonetheless compel the seller to honor the transaction.
2888. In the Hanafi denomination, the validity of a transaction of salam—the sale of an abstract commodity delivered at a future date in exchange for advance payment—is only valid if the commodity is corporeally present at the time of contract. However, according to the Shi’a denomination, this condition is not consequential in the validity of the transaction. Therefore, if a Shi’a carries out a transaction of salam with a Hanafi individual, and the commodity is not corporeally present, then in accordance with the principle of ilz¡m, he may compel the Hanafi seller to void the transaction. The same applies if the buyer was a Hanafi at the time of contract, but converted to shi’ism later on.
2889. If a non-Shi’a individual passes away, and he leaves behind a non-Shi’a daughter, and he also has a brother, then if his brother is a Shi’a, or converts to shi’ism after the death of his brother, then in accordance with the principle of ilz¡m, he may take the remainder from the estate of the deceased by ta‘sib, even though ta‘sib is not valid according to the Shi’a denomination.
Similarly if a non-shi'a individual passes away and leaves behind a non-shi'a sister, and also a paternal uncle who shares the same mother and father, then if the paternal uncle is a shi'a or converts to shi'ism after the death of his nephew, then in accordance with the principle of ilz¡m, he may claim the amount that is accorded to him by ta‘sib. The same ruling applies in all the other cases of ta‘sib.
2890. According to non-shi'a denominations, the wife of the deceased inherits from his entire estate, including cash, commodities, lands, gardens and other items. However, according to the shi'a denomination, a wife does not inherit the land, neither the corporeal land nor its value. However, if the deceased in a non-shi'a individual and his wife is a shi'a, then in accordance with the principle of ilz¡m, the shi'a lady will inherit the land.
The above was merely a section of the rulings that fall under the principle of ilz¡m. Other cases such as the last will of a person for his inheritors, pronouncing the formal expressions of marriage in the state of ihram, a neighbour’s right to pre-empt a sale, the option of a condition, and the option of ta¥riyah are all subject to the principle of ilz¡m.
2891. It is not permissible to dissect the dead body of a Muslim, and the one who dissects the body of a Muslim post-mortem will have to pay an amount equal to the blood money of a Muslim fetus, the details of which have been mentioned in the texts on blood money.
2892. It is permissible to dissect the body of a k¡fir who is not a dhimmi. As for a dhimmi, it is problematic to claim that it is permissible to dissect his body and that the one who dissects it is not liable to pay the blood money of a Muslim fetus, unless it is permissible according to his faith. In such a case, there is no problem in doing so. In the event that one doubts whether a person is a Muslim or not, or a dhimmi or not, it is permissible to dissect his body.
2893. If the life of a Muslim depends on dissecting a dead body, and it is not possible to dissect the body of a non-Muslim or one whose being a Muslim is in doubt, whilst there is no other way to keep the Muslim alive, then it is permissible to dissect the body of a Muslim. In this case the blood money of a Muslim fetus—as elaborated in the texts on blood money—will be due on the one who dissects him.
2894. It is not permissible to amputate a part from the body parts of a Muslim’s dead body, such as his eyes or similar parts, with the intention of attaching it to the body of a living person. The one who amputates the part will have to pay the blood money of that part, which is equal to the blood money for the body part of a Muslim fetus. However, if the life of a Muslim depends on amputating a part from the body of a dead Muslim and attaching it to the living one, then it will be permissible to sever that part. However, the one who amputates it will nonetheless have to pay the blood money. After it is attached and becomes a part of a living person's body, it will be subject to the precepts of a living body.
If a person states in his will that after his death, a part from the parts of his body should be amputated and attached to another person, then to claim the validity of such a will is problematic.
2895. If a person consents to the act of amputating—whilst he is alive—a part from the parts of his body, and attaching it to another person, then if that part is a essential part of his body, severing which would endanger his life, or inflict him with a defect or a deficiency, then it is not permissible to amputate that part.
However, if amputating that part does not inflict harm or a defect on him, such as removing a part of his skin, or the flesh on his thigh where it usually regenerates, then it is permissible to cut that part with his consent. He may also choose to acquire payment for relinquishing his right over it.
2896. It is permissible to donate blood to patients who are in need of blood. There is also no harm in acquiring payment for giving blood. In any case, the act of giving blood should not endanger the life of the donor.