Irsal (sending; the mursal report)

Irsal in the lexicon is the verbal noun of arsala: to let a thing go and leave it, to speak without restriction, to send a messenger with a message, or to set something on something. The jurists use the word in several senses: letting hang (the hands in prayer, the end of a turban), sending (money or a message to someone), leaving (a sacred-state person releasing game in hand), neglect (water, fire or animals let loose), and empowering (releasing an animal or arrow against game). ¹ The usuliyyun use irsal for the unrestricted benefit (al-maslaha al-mursala), meaning any benefit the lawgiver neither required nor disregarded. ¹ In hadith, most scholars use irsal for a Successor who omits the companion between himself and the Prophet and reports directly, "the Messenger of God said" or "did" such and such. Some limit it to a senior Successor who saw several companions and sat with them. ^{1 3} When the chain breaks before the Successor, through a narrator who did not hear from the one above him, al-Hakim and other hadith scholars do not call it mursal: it is munqati' if one link is missing and mu'dal if more are. For the usuliyyun all of these are mursal. Al-Khatib among the hadith scholars takes this view. Musallam al-Thubut prefers a definition as what a just narrator reports without a connected chain, which includes the munqati'. Many feel that the multiplicity of these terms has little benefit. ³ The usuliyyun divide mursal into four kinds. The first, sent by a companion, is accepted by consensus for the justice of the companions. ³ The second, from the second and third centuries (the Successors and their followers), is a proof for the Hanafis, Malikis and the better-known Hanbali report when the sender is just. Al-Shafi'i accepts it only when supported by a verse, a well-known sunna, a sound analogy, a companion's word, the community's acceptance, two just narrators who sent it from different teachers, or a connection proven another way, as when another route narrates it connected. On this basis the mursal of Sa'id ibn al-Musayyib was accepted, because tracing showed most of it connected, and most of it was what he heard from Umar. The better-known of Ahmad's two reports makes it a proof. ^{3 4} The third is a mursal by a just narrator from outside the three centuries. Abu al-Hasan al-Karkhi accepts it, since the cause that makes the mursal of the three centuries acceptable, justice and precision, applies in every age. ⁴ The fourth is a report sent by one route and connected by another. Most accept it, because the mursal is silent about the narrator and the connected report speaks, and silence does not oppose speech; the example is "no marriage without a guardian", which Israil ibn Yunus narrated connected and Shu'ba narrated sent. Some reject it: the silence about a teacher is like a criticism and the other chain like a commendation, and when criticism and commendation meet the criticism prevails. ⁴ On the placing of the hands in prayer the scholars give four views. The first is that the worshipper places his right hand on his left; this is the choice of the majority of Hanafis, Shafi'is and Hanbalis, and a report of Mutarrif and Ibn al-Majishun from Malik, who call it the sunna. They cite the report of Sahl ibn Sa'd that people were ordered to place the right hand on the left forearm, Wa'il ibn Hujr's description of the Prophet's prayer, and Ibn Mas'ud's account of the Prophet taking his right hand and placing it on his left. ⁴ The second recommends letting the hands hang, dislikes clasping them in an obligatory prayer and allows it in a voluntary one; some say this without limit and some say it only when prolonged. This is the report of Ibn al-Qasim from Malik in the Mudawwana, taken by Khalil and his commentators al-Dardir and al-Dusuqi, whose reason for the dislike is that clasping resembles leaning. Al-Dardir adds that one who clasps not for leaning but for support is not disliked, and that the reason is the sound basis, so clasping is allowed absolutely in voluntary prayer. ⁴ The third allows clasping in both obligatory and voluntary prayer, a view of Malik in the reports of Ashhab and Ibn Nafi'. The fourth forbids it in both, as al-Baji reported and Ibn Arafa followed; al-Mansawi calls this an anomaly. The hands should be let down gently at the start of the takbir so that the letting down matches the movement. ^{4 5} On the tail of a turban and tying it under the chin, al-Hattab quotes Ibn al-Hajj that a turban without a tail or a chin-tie is a reprehensible innovation, and that doing both is most perfect. Al-Nawawi said there is no reprehensibility in letting the tail hang or not; Ibn Abi Sharif objected that letting it hang is recommended and leaving it is contrary to the preferred course. The Hanafis recommend letting the tail hang between the shoulders to the middle of the back, some say to the place of sitting, others one span. The Hanbalis hold the chin-tied turban recommended and dislike a wrapping without an end. ^{5 6} In marriage, the jurists agree in general that sending a contract by a messenger or in writing is valid and carries its effects. The Hanafis hold that if a man sends a messenger to a woman, or writes to her "I have married you", and she accepts before two witnesses who heard the messenger's words or the reading of the letter, it is valid; if they did not hear it, it is invalid according to Abu Hanifa and Muhammad. Abu Yusuf holds it valid if the woman says "I have given myself in marriage", because her words are one half of the contract and testimony is required for both halves. The Shafi'is, Malikis and Hanbalis agree with Abu Hanifa and Muhammad. ^{5 6} If a suitor cannot look at the woman he proposes to, the Malikis, Shafi'is and Hanbalis allow him to send a trusted woman to look at her and describe her, citing a report that the Prophet sent Umm Sulaym to a woman with instructions to look at her; al-Hakim reported it and graded it sound. Al-Shabramallisi added that a description is not like seeing, so one should not rely on it after sending. ⁶ The jurists agree that if a husband sends his wife a letter containing "you are divorced", she is divorced at once, whether or not the letter reaches her, and her waiting period is counted from the writing. If he writes "if my letter reaches you, you are divorced", the divorce takes effect from the date of its arrival, since arrival is the condition. ⁶ The jurists agree that if someone sends a messenger or a letter asking another to sell him something, and the addressee accepts within the session in which the letter or the messenger's words reach him, the sale is concluded, because the messenger is an envoy who conveys the sender's words, as though the sender was present. The same rule applies to hire and to manumission by contract (mukataba). The Malikis draw a distinction here that the scanned page does not state fully, and it should be checked in the original. ⁶ If the messenger attributes the purchase to himself, he is held to the price. If the sender acknowledges that he sent him, the seller may claim from either, unless the sender swears that he paid the messenger, in which case he is discharged and the seller pursues the messenger. If the purchase is attributed to the sender, the sender pays and the messenger does not. Al-Dardir says that when the messenger says "so-and-so sent me to sell this for a hundred", and the seller agrees, the messenger is not pursued. The Hanafis agree that a messenger buying does not have power to cancel the option, that his seeing the goods is not the sender's seeing, and that the option stays with the sender if he has not seen them. ⁷ The jurists hold that a thing sent remains the property of the sender until the addressee takes possession; until then it stays in the sender's ownership and no one but the one designated may take it. ⁷ If a man claims to be sent by Zayd to borrow jewelry from Bakr, Bakr hands it over, and the messenger then claims it was lost, al-Dardir says that Zayd is liable if he confirms the sending; if he denies it he swears and is discharged, and the messenger swears that he was sent and that the loss was without his negligence, and is also discharged; the jewelry is then lost unpaid. The sounder view is that the messenger is liable and is not discharged by oath unless there is evidence of the sending, so the liability then falls on the sender. The Hanafi Qadi Khan says that if a man sends a messenger to a cloth-seller for a cloth and the seller sends it with his own messenger or another, and it is lost before reaching the sender, the sender's messenger is not liable; if the seller sends it with the sender's messenger, the liability falls on the sender, because the messenger took it on the terms of bargaining. ^{7 8} Where a depositor sends the deposit to its owner with the owner's permission, the sending is valid. If he sends it without permission and it is lost with the messenger, he must pay, except in one case: if he faces a long stay on the road, as a year, he must send it to the owner and is not liable if it is lost, while if he withholds it he is liable. If the stay is short, as days, he must keep it with him, and if he sends it without permission he is liable for its loss. If the stay is middling, as two months, he may send it or keep it, and he is not liable whether he sends it and it is lost or keeps it. ² The same rule holds for the guardian of the property owner, who is liable if he sends the property to the heirs without their permission and it is lost; and for the judge who sends property to its entitled person without permission, who is liable according to Ibn al-Qasim, against Asbagh. Ibn Qudama reports Ahmad on a man owed dirhams who sent a messenger to collect them and sent a dinar in their place: the loss falls on the sender, since he did not authorise an exchange, unless the messenger told the debtor that the owner had permitted the dinar, in which case the messenger bears the loss. ^{2 8} On the testimony that the sending affects: al-Kasani says that if a man sends a messenger to a woman he wants to marry, or writes to her, and she accepts before two witnesses who heard the messenger's words or the reading of the letter, it is valid, because the session is one in meaning and the messenger's words are the sender's words. If they did not hear, it is invalid for Abu Hanifa and Muhammad; for Abu Yusuf it is valid if the woman says "I have given myself in marriage". Al-Dasuqi supports requiring witnesses in sending: a depositor who hands the deposit to a messenger without witnesses is liable, since he handed it to someone other than the one he was trusted with; if he had witnesses he is discharged, and the addressee claims from the messenger when there is no proof. ^{2 9} Third, irsal in the sense of neglect: the liability for damage by sent animals. The Shafi'is distinguish an animal with a rider or driver, which is liable by night or day because the hand is theirs and the act is attributed to them, from one with neither, which is not liable for damage by day, while its owner is liable for damage by night because he was negligent in sending it, following a sound report in Abu Dawud and the custom of guarding crops by day and animals by night; if custom is reversed, the ruling reverses. The Shafi'is exempt pigeons, bees and the like from liability altogether. ⁹ The Malikis and Hanbalis agree with the Shafi'is on liability by night, with differences in detail. The Malikis divide by land: where there are fields and orchards that are not grazing land, animals may not be sent there, and their owners are liable for damage by night or day; where people customarily send their animals there, the owners are not liable. For pigeons, chickens and bees the Malikis have two reports: one agrees with the Shafi'is, and one treats them like livestock, the view of Ibn al-Qasim, though Ibn Arafa preferred the first. ¹⁰ The author of al-Taj wa al-Iklil says that if a man sends fire or water on his land and it reaches a neighbour's land and damages the crop, one looks at the nearness of the land: if it is near he is liable; if far, he is not, unless the fire reached it by wind or the like. ¹⁰ The Hanafis distinguish a dog from an animal when sent: a dog sent without a driver causes no liability for what it damages, since the sender is not a transgressor and cannot follow it; an animal sent that damages property at once makes him liable, since he transgresses by sending it on the road when he could follow it, though Abu Yusuf makes no distinction. The Durr al-Mukhtar says that whoever sends a bird, an animal or a dog without driving it, or whose loose animal escapes on its own, is not liable for the damage by day or night, since the loose animal's damage is wasted, according to the saying that the loose beast is wasted. ¹⁰ Water depends on its quantity and the land: whoever sends water on his land that flows to another's land is not liable if his land could hold it, and is liable if he sent more than it could hold. Whoever throws earth into a river, so that the water is held back and drowns a house, is liable; the sender is not, since he did not transgress. ^{10 11} The Hanbalis rely on a report of Malik from al-Zuhri from Haram ibn Sa'd ibn Muhayyisa: a camel of al-Bara' entered a people's enclosure and damaged it, and the Prophet ruled that the owners of property must guard it by day, and what is damaged by night is their liability. The Hanbalis confine this to places with crops and pasture; where there is no pasture, one may not send an animal without a guard. Al-Harithi, a Hanbali, takes custom into account, so the owner is liable for night damage if he was negligent in guarding. ¹¹ The Hanbalis hold that if a man sends a game animal and says "I have freed you", his ownership does not end, as with a camel or cow he sends, since ownership is not ended by that. ¹¹ Irsal in taking delivery and in dismissal: al-Sarakhsi says that a man who buys a thing and sends a messenger to receive it has the option when he sees it, since the messenger's seeing and receipt do not bind the sender to the goods, the aim being that the contracting party know the features of what he contracts for. If he appoints an agent for receipt and the agent sees and receives it, Abu Hanifa gives the principal no option; Abu Yusuf and Muhammad give him the option, since receipt is an act and the messenger and agent are equal in it. Abu Hanifa's argument is that authority to receive in general gives the agent power to complete the receipt, which is only complete after the bargain is complete, whereas the messenger has only to convey the message; he cites a verse of surat al-An'am (66) that denies the Prophet agency while affirming his message. The option for a defect is not lost by an agent's receipt. ^{11 12} If a man sends a messenger to his agent to dismiss him, and the messenger delivers it, the agent is dismissed, whether the messenger is just or not, young or old, since the messenger stands in the sender's place and speaks for him. ¹² Revoking a sending: the Hanafis hold that the sender may revoke what he sent, because a message is not spoken face to face and so can be revoked, whether or not the messenger knows; unlike an agent, whose dismissal without his knowledge is not valid. Ibn Hajar al-Haytami reports from Ibn Surayj that whoever sends charity with a messenger and takes it back on the road may do so, and if he dies before it arrives it is his estate for his heirs. ¹² Irsal in the sense of setting on: a trained hunting dog, or a similarly trained animal, that runs after game on its owner's sending and stops at his command, makes the game lawful to eat even without slaughter reached in time; but if the animal runs of its own accord and hunts, the game is not eaten unless the slaughter is completed, since it hunted for itself and not for its owner. Hunting rules are in their own entry. ^{12 13} Irsal in the sense of releasing: the jurists agree that a person in the state of ihram must release a game animal that is in his hand if he had it before entering the state, and likewise a non-pilgrim who hunted in the lawful area and entered the sacred precinct with it. Game kept in the house, or in a cage with him, need not be released, although the Hanafis hold the sound view differs. Al-Hidaya, a Hanafi work, takes a different view: the Companions entered ihram with game and fowl in their houses and it is not reported that they released them; it adds that if the cage is in his hand he must release it in a way that does not waste it, such as by leaving it in his house, since wasting property is forbidden. ¹³