Pardon (afw) in purity, worship, contracts and penalties

العَفْو

In the lexicon, afw means removing or pardoning, and also abundance, going away and giving; the jurists use it mainly for dropping or overlooking a right ¹. It is distinguished from pardon by forgiveness of the wrong (safh) and from the forgiveness of sins (maghfira), dropping a right (isqat) and settlement (sulh) ². Its ruling depends on the right: pardon is recommended where the right is purely the individual's; where the right belongs to God, as in the fixed punishments, there is no pardon once the matter is before the judge ². In worship, the schools disagree on pardon for small amounts of impurity, such as blood, pus and street mud, on the interval between the two thresholds of the camel and the cattle tax, on some things that do not break the fast, and on forgotten wearing of sewn clothes or perfume during pilgrimage ³ ⁴ ⁵. In contracts, pardon of pre-emption, of a debt, and of a dower are treated ⁵ ⁶. In retaliation, pardon is lawful and recommended; if one of several heirs pardons, the retaliation falls and the others' shares become money, by the consensus the text reports; the schools differ on the effect of pardon during injury, on the capacity of the pardoner, and on settlement for money ⁶ ⁷ ⁸ ⁹. There is no pardon for the fixed punishments of adultery and theft; the jurists differ on slander, and pardon in discretionary punishment (ta'zir) is allowed where it concerns a person's right or the ruler's discretion ¹⁰ ¹¹ ¹².

Summary

In the lexicon, afw means removing or pardoning, and also abundance, going away and giving; the jurists use it mainly for dropping or overlooking a right ¹.

Its ruling depends on the right

Where the right is purely the individual's, pardon is recommended; where it belongs to God, as in the fixed punishments, there is no pardon once the matter is before the judge ².

In worship

The schools disagree on pardon for small amounts of impurity such as blood, pus and street mud, on the interval between the two thresholds of the camel and cattle tax, on some things that do not break the fast, and on forgotten wearing of sewn clothes or perfume during pilgrimage ³ ⁴ ⁵.

In contracts

Pardon of pre-emption, of a debt, and of a dower are treated; a wife may pardon all or part of her dower ⁵ ⁶.

In retaliation

Pardon for retaliation is lawful and recommended. If one of several heirs pardons, retaliation falls and the others' shares become money. The schools differ on the effect of a pardon given after injury and before death, on who may pardon, and on settling for money ⁶ ⁷ ⁸ ⁹.

In fixed and discretionary punishments

There is no pardon for the fixed punishments of adultery and theft; the jurists differ on slander. Pardon in discretionary punishment (ta'zir) is allowed where it concerns a person's right or the ruler's discretion ¹⁰ ¹¹ ¹².

Where to look further

Retaliation is treated under «qisas», fixed punishments under «hadd», and discretionary punishment under «ta'zir» ².

Sources

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11674

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11675

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11676

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11679

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11680

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11681

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11683

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11689

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11690

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11691

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11692

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11693

Biting and the liability for injury it causes (add)

In the lexicon, add is gripping a thing with the teeth and holding it. If a person bites another without right and a wound results, the biter must pay the damages for the wound, assessed as a just award by experts. If one man bites another's hand and the bitten man pulls it free so that the biter's front teeth fall out, most jurists hold that there is no liability, relying on a prophetic judgement in such a case; the Shafi'is limit this to a bitten man who chose the easiest means of release, and the preferred Maliki view requires compensation.