Forgetfulness (nisyan) and its legal effects

النِّسْيَان

Nisyan in the lexicon is the opposite of remembering or retaining, and it also means leaving aside or delaying. As a term it is failing to recall a thing when one needs it, and it is distinguished from error (khata'), which is a thing one did not intend. ^{1 2} The Shafi'is and Hanbalis hold, in the sound view, that the forgetful person is not accountable while he forgets. The Hanafis hold that forgetting does not cancel the duty owed to God but may be an excuse in God's rights, and is no excuse in the rights of people. ^{2 3} The Malikis hold that forgetting in acts of worship does not harm the act, while ignorance does. ⁴ All agree that forgetting removes sin in the next world. In this world, an omitted command must be made up, harm done in forgetting still requires compensation, and forgetting may be a doubt that lifts a penalty. ⁵ Among the applications are forgetting the basmala in ablution and prayer, forgetting water when making tayammum, forgetting impurity in prayer, forgetting a prayer, and forgetting the intention in fasting. Opinions differ on each, and the entry gives each school's view. ^{6 7 8} In fasting, forgetting the intention or intercourse during a fast of consecutive expiation may break the sequence in some schools. Forgetfully eating or drinking during Ramadan does not break the fast for the Hanafis and the Shafi'is, while the Malikis hold that it does. ^{9 10 11 12} In prayer, forgetting talk or eating is excused in small amounts by most schools, while the Hanafis void the prayer on any such act. ¹¹ On divorce and oaths, the Hanafis, Shafi'is and Hanbalis hold that the divorce of a forgetful man takes effect. ^{13 14} Forgetting gives no excuse in the liability for destroyed property or injury. ¹⁵