Tadhakkur (remembering and its legal effect)

In law, tadhakkur is the recollection that governs the effect of forgetting and inattention on rulings, and the schools differ on those effects. Most jurists rely on remembering, not on handwriting, in judging and testifying. ^{1 3}

Tadhakkur and tadhkir come from the root that is the opposite of forgetting; one says "I remembered the thing after forgetting it". The legal sense does not depart from the lexical one. ¹

• Sahw (inattention): the form of a thing leaves perception while it stays in memory, or a distraction from a thing so that the slightest reminder brings it back. ¹
• Nisyan (forgetting): a lapse in which the thing has left both perception and memory, so that a fresh cause is needed to bring it back. ¹

The Hanbalis and Malikis hold that the prayer of one who ate forgetfully is not voided, however much he ate, on the hadith that God has put aside from my community error, forgetting, and what they are forced into. The Hanafis hold that the prayer is voided even by a little eating. The Shafi'is distinguish little from much. ²

The Hanafis: if two just men tell the imam he has not completed the prayer, his doubt does not count and he follows them; if one just man says so and he doubts him, he repeats it as a precaution. The Malikis: if a body of reporters gives certain knowledge, he must return to their word; if two or more just men among his followers say so, he follows them unless he is sure otherwise; a single report is followed only for a shortfall. The Shafi'is have the imam take the lesser count and not act on another's reminder. The Hanbalis hold he must accept the word of two whom he trusts. ^{2 5}

Most jurists hold that one who eats or drinks while fasting, forgetfully, does not break his fast, on the hadith of Abu Hurayra (may God be pleased with him): God fed him and gave him drink. Some hold that the eating must be small. The Malikis hold that one who eats forgetfully has broken his fast. ^{5 3}

Most jurists hold that a judge who sees his own ruling in his handwriting may not act on it until he remembers it, since forgery is possible. Abu Yusuf and Muhammad ibn al-Hasan allow acting on the handwriting when it is certainly his own, and so does one narration of Ahmad. The Malikis, Ahmad and Muhammad ibn al-Hasan require him to carry out the ruling when two just men testify it is his, while the Shafi'is say he may not act until he remembers. ³ A witness who sees his testimony in his own hand and does not remember it may not testify, in the Maliki and Shafi'i view, even if the writing is kept, since forgery is possible. One narration of Ahmad and the view of Abu Yusuf allow testifying when the hand is known. ^{3 4}

A man may report the content of his own writing, relying on the kept copy, according to the Shafi'is, since scholars have acted on this from the first generations. Abu Hanifa did not accept it, since one hand resembles another; his two companions disagreed. ⁴ The cross-reference tadhkir refers to this entry. ⁴