Daf' (the fiqh term: repelling, giving, returning and rebutting)

الدفع (في الفقه)

In the lexicon daf' means pushing away, delaying, pleading on behalf of another and returning; as a term it means turning a thing away before it arrives. Jurists use it to mean giving or paying (as in zakat), returning (a deposit), warding off harm (repelling an aggressor), and rebutting a claim and voiding it. ¹ The maxim that repelling is stronger than removing (al-daf' aqwa min al-raf') is cited from al-Zarkashi; among its applications, water already used that reaches two qullas does not become pure in one view. ²

Summary

In the lexicon daf' means pushing away, delaying, pleading on behalf of another, and returning. As a term it means turning a thing away before it arrives. ¹ Jurists use it to mean giving or paying, returning, warding off harm, and rebutting a claim to void it. ¹

Related terms

In the lexicon daf' is close to dar' (repelling) and to radd (returning or refusing), and it stands against raf' (removing a thing after it has arrived). ³

Where the rule appears

In zakat, daf' means giving or paying out, and the detail is in the zakat entry. ³ In a deposit it means returning the deposit to the depositor or his agent on demand; a depositary who delays until it is lost is liable. ³ In repelling an aggressor (sial) it means stopping the attacker from reaching his aim; a defender may repel an attack on life, limb, benefit, honour or property, starting with the least harmful means, and if only killing will do he may kill without retaliation, diya or expiation. A defender who dies is counted a martyr, on the hadith about one killed defending his property. ² In a claim it means rebutting the plaintiff's statement and voiding his claim, for example by the defendant saying the thing is a deposit, pledge or loan, and proving it. ²

Repelling is stronger than removing

This is a legal maxim cited by al-Zarkashi in al-Manthur. ² Among its applications, water already used that reaches two qullas does not become pure in one view. A journey before starting the fast permits breaking it, while a journey begun in the middle of a day of Ramadan does not permit it. ⁴ The term appears in many fiqh chapters, such as prayer, pilgrimage, salam, hawala, pledge, guarantee, surety, partnership, agency, loan, endowment, bequest, maintenance, crimes, penalties, jihad and jizya, each treated under its own entry. ⁴

Sources

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.8213

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.8215

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.8214

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.8216

Ahliyya (legal capacity: to have rights and duties, and to act; its stages from the womb to full maturity, and what impairs it)

Ahliyya is lexically suitability, and it is of two kinds: capacity to have rights and duties, the capacity of liability; and capacity to act, that is to perform acts recognised by the law. Its bearer passes through the stages of the foetus, childhood, discernment, puberty and maturity. Liability is complete from birth and incomplete for the foetus; the capacity to act is partial at discernment and full with puberty and reason. It is affected by heavenly impediments such as madness, imbecility, sleep, fainting, illness, slavery, menstruation, childbirth and death, and by acquired ones such as ignorance, drunkenness, jest, folly, travel, error and coercion.