Tark (abstention, and its legal effects)

Tark is restraining oneself from acting. Abstaining from the forbidden is obligatory; failing a duty is disciplined; a right of a person may be waived. ^{1 4}

In the language, tark is leaving a thing; the word was then used for dropping a right. In the usage of most usulis and jurists it is restraining oneself from acting; some say it is not an act. ¹

• Ihmal (neglect): leaving a thing by intent or forgetfulness. Takhliya is enabling someone to deal with a thing; tark is wider. Iskat is dropping a claim, and ibra' is releasing a debt. ¹

The demand to abstain in God's address concerning a person's act is one of the parts of the legal ruling: if firm, it is forbidden; if not firm, it is disliked; if equal to the demand to act, it is permitted. ² Most usulis hold that the obligation to abstain falls on it as an act, while Abu Hashim held that it is not an act but the absence of what is forbidden. A prohibition has three parts: the duty, which is abstention; the reward, which needs the intent to obey; and the absent forbidden act, which is the aim. ^{2 3} Abstention may also serve to show a ruling, as for the forbidden, the disliked and the recommended. ³

Forbidden acts must be avoided in obedience to the prohibition, whether of the limbs, such as unlawful intercourse or theft, or of the heart, such as spite and envy; doing them is disobedience, bringing a penalty of fixed punishment, retaliation or discretion. Forbidden acts become lawful in necessity, and sometimes obligatory. ^{3 4} Abandoning God's rights, such as worship, is forbidden by agreement; the one who leaves it out through laziness is sinful, and the one who denies its obligation disbelieves. ⁴ Fixed penalties that are God's right, such as for unlawful intercourse and theft, must be carried out once the matter reaches the imam, and cannot be waived once the cause is established before the judge; so intercession is not allowed. Discretionary penalties for God's right are obligatory for the Hanafis, Malikis and Hanbalis when the imam sees benefit in them; for al-Shafi'i they are not obligatory. ⁵ A person's right may be waived, such as remitting a debt from a poor man or pardoning retaliation; but abandoning a right over one's own person may be forbidden, as in refusing food until death. ⁵

If a right of another is owed by a person who undertook to keep or deliver it, leaving the keeping or delivery is disobedience that brings discretionary penalty, with liability for what is lost. Where the person did not undertake the act, the majority of jurists hold that there is no liability for abstaining, while the Malikis in the accepted view hold that there is. ⁶ Where a man detains another and withholds food or drink until he dies, the Malikis, Shafi'is and Hanbalis hold retaliation due; Abu Yusuf and Muhammad hold blood-money due from his kin; Abu Hanifa holds no liability. One who could save another from death and does not is not liable by the Hanafis, Shafi'is and Hanbalis, though he sins. ^{6 7} One in necessity may fight one who withholds food from him; if the owner is killed, his blood is wasted. ⁷

A person who fails a duty, such as leaving a debt unpaid, withholding trusts or refusing to return usurped goods when able, is disciplined by discretionary penalty and may be held by imprisonment or beating. ⁷ Abstaining from a forbidden act needs no intent to discharge the prohibition; for reward, it needs intent to obey. ⁸ Abstention has effects: the right of pre-emption is lost by not claiming it without excuse; an animal is not lawful if the slaughterer leaves out the naming of God on purpose, by the majority; a claim lapses by abstention for a period; swearing to abstain from a duty brings the breach and expiation; and missed acts of worship are made good by bodily or financial means. ^{8 9}