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Witnesses Should Attend the Dictation of Contracts Print E-mail

Allah said,

﴿وَاسْتَشْهِدُواْ شَهِيدَيْنِ مِّن رِّجَالِكُمْ﴾

(And get two witnesses out of your own men) requiring witnesses to attend the dictation of contracts to further preserve the contents,

﴿فَإِن لَّمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌ وَامْرَأَتَانِ﴾

(And if there are not two men (available), then a man and two women) this requirement is only for contracts that directly or indirectly involve money. Allah requires that two women take the place of one man as witness, because of the woman's shortcomings, as the Prophet described. Muslim recorded in his Sahih that Abu Hurayrah said that the Messenger of Allah said,

«يَا مَعْشَرَ النِّسَاءِ تَصَدَّقْنَ وَأَكْثِرْنَ الْاسْتِغْفَارَ، فَإِنِّي رَأَيْتُكُنَّ أَكْثَرَ أَهْلِ النَّار»

(O women! Give away charity and ask for forgiveness, for I saw that you comprise the majority of the people of the Fire.)

One eloquent woman said, "O Messenger of Allah! Why do we comprise the majority of the people of the Fire'' He said,

«تُكْثِرْنَ اللَّعْنَ، وَتَكْفُرْنَ الْعَشِيرَ، وَمَا رَأَيْتُ مِنْ نَاقِصَاتِ عَقْلٍ وَدِينٍ، أَغْلَبَ لِذِي لُبَ مِنْكُن»

(You curse a lot and you do not appreciate your mate. I have never seen those who have shortcoming in mind and religion controlling those who have sound minds, other than you.) She said, "O Messenger of Allah! What is this shortcoming in mind and religion'' He said,

«أَمَّا نُقْصَانُ عَقْلِهَا، فَشَهَادَةُ امْرَأَتَيْنِ تَعْدِلُ شَهَادَةَ رَجُلٍ، فَهَذَا نُقْصَانُ الْعَقْلِ، وَتَمْكُثُ اللَّيَالِي لَا تُصَلِّي وَتُفْطِرُ فِي رَمَضَانَ، فَهَذَا نُقْصَانُ الدِّين»

(As for the shortcoming in her mind, the testimony of two women equals the testimony of one man, and this is the shortcoming in the mind. As for the shortcoming in the religion, woman remains for nights at a time when she does not pray and breaks the fast in Ramadan)

Allah's statement,

﴿مِمَّن تَرْضَوْنَ مِنَ الشُّهَدَآءِ﴾

(such as you agree for witnesses) requires competency in the witnesses. Further, Allah's statement,

﴿أَن تَضِلَّ إْحْدَاهُمَا﴾

(so that if one of them errs) refers to the two women witnesses; whenever one of them forgets a part of the testimony,

﴿فَتُذَكِّرَ إِحْدَاهُمَا الاٍّخْرَى﴾

(the other can remind her) meaning, the other woman's testimony mends the shortcoming of forgetfulness in the first woman.

Allah's statement,

﴿وَلاَ يَأْبَ الشُّهَدَآءُ إِذَا مَا دُعُواْ﴾

(And the witnesses should not refuse when they are called) means, when people are called to be witnesses, they should agree, as Qatadah and Ar-Rabi` bin Anas stated. Similarly, Allah said,

﴿وَلاَ يَأْبَ كَاتِبٌ أَن يَكْتُبَ كَمَا عَلَّمَهُ اللَّهُ فَلْيَكْتُبْ﴾

(Let not the scribe refuse to write as Allah has taught him,

«أَمَّا نُقْصَانُ عَقْلِهَا، فَشَهَادَةُ امْرَأَتَيْنِ تَعْدِلُ شَهَادَةَ رَجُلٍ، فَهَذَا نُقْصَانُ الْعَقْلِ، وَتَمْكُثُ اللَّيَالِي لَا تُصَلِّي وَتُفْطِرُ فِي رَمَضَانَ، فَهَذَا نُقْصَانُ الدِّين»

(As for the shortcoming in her mind, the testimony of two women equals the testimony of one man, and this is the shortcoming in the mind. As for the shortcoming in the religion, woman remains for nights at a time when she does not pray and breaks the fast in Ramadan)

Allah's statement,

﴿مِمَّن تَرْضَوْنَ مِنَ الشُّهَدَآءِ﴾

(such as you agree for witnesses) requires competency in the witnesses. Further, Allah's statement,

﴿أَن تَضِلَّ إْحْدَاهُمَا﴾

(so that if one of them errs) refers to the two women witnesses; whenever one of them forgets a part of the testimony,

﴿فَتُذَكِّرَ إِحْدَاهُمَا الاٍّخْرَى﴾

(the other can remind her) meaning, the other woman's testimony mends the shortcoming of forgetfulness in the first woman.

Allah's statement,

﴿وَلاَ يَأْبَ الشُّهَدَآءُ إِذَا مَا دُعُواْ﴾

(And the witnesses should not refuse when they are called) means, when people are called to be witnesses, they should agree, as Qatadah and Ar-Rabi` bin Anas stated. Similarly, Allah said,

﴿وَلاَ يَأْبَ كَاتِبٌ أَن يَكْتُبَ كَمَا عَلَّمَهُ اللَّهُ فَلْيَكْتُبْ﴾

(Let not the scribe refuse to write as Allah has taught him, so let him write.)

Some say that this Ayah indicates that agreeing to become a witness is Fard Kifayah (required on at least a part of the Muslim Ummah). However, the majority of the scholars say that the Ayah,

﴿وَلاَ يَأْبَ الشُّهَدَآءُ إِذَا مَا دُعُواْ﴾

(And the witnesses should not refuse when they are called) is referring to testifying to what the witnesses actually witnessed, thus befitting their description of being `witnesses'. Therefore, when the witness is called to testify to what he witnessed, he is required to give testimony, unless this obligation was already fulfilled, in which case such testimony becomes Fard Kifayah. Mujahid and Abu Mijlaz said, "If you are called to be a witness, then you have the choice to agree. If you witnessed and were called to testify, then come forward.'' It was reported that Ibn `Abbas and Al-Hasan Al-Basri said that the obligation includes both cases, agreeing to be a witness and testifying to what one witnessed.

Allah's statement,

﴿وَلاَ تَسْـَمُواْ أَن تَكْتُبُوهُ صَغِيرًا أَوْ كَبِيرًا إِلَى أَجَلِهِ﴾

(You should not become weary to write it (your contract), whether it be small or large, for its fixed term) perfects this direction from Allah by commanding that the debt be written, whether the amount is large or small. Allah said,

﴿وَلاَ تَسْـَمُواْ﴾

(You should not become weary) meaning, do not be discouraged against writing transactions and their terms, whether the amount involved is large or small. Allah's statement,

﴿ذَلِكُمْ أَقْسَطُ عِندَ اللَّهِ وَأَقْوَمُ لِلشَّهَـدَةِ وَأَدْنَى أَلاَّ تَرْتَابُواْ﴾

(that is more just with Allah; more solid as evidence, and more convenient to prevent doubts among yourselves) means, writing transactions that will be fulfillled at a later date is more just with Allah meaning better and more convenient in order to preserve the terms of the contract. Therefore, recording such agreements helps the witnesses, when they see their handwriting - or signatures - later on and thus remember what they witnessed, for it is possible that the witnesses might forget what they witnessed.

﴿وَأَدْنَى أَلاَّ تَرْتَابُواْ﴾

(And more convenient to prevent doubts among yourselves) meaning, this helps repel any doubt. Since if you need to refer to the contract that you wrote and the doubt will end.

Allah's statement,

﴿إِلاَ أَن تَكُونَ تِجَـرَةً حَاضِرَةً تُدِيرُونَهَا بَيْنَكُمْ فَلَيْسَ عَلَيْكُمْ جُنَاحٌ أَلاَّ تَكْتُبُوهَا﴾

(save when it is a present trade which you carry out on the spot among yourselves, then there is no sin on you if you do not write it down) indicates that if the transaction will be fulfilled immediately, then there is no harm if it is not recorded.

As for requiring witnesses to be present in trading transactions, Allah said,

﴿وَأَشْهِدُواْ إِذَا تَبَايَعْتُمْ﴾

(But take witnesses whenever you make a commercial contract. )

However, this command was abrogated by,

﴿فَإِنْ أَمِنَ بَعْضُكُم بَعْضًا فَلْيُؤَدِّ الَّذِى اؤْتُمِنَ أَمَـنَتَهُ﴾

(Then if one of you entrusts the other, let the one who is entrusted discharge his trust (faithfully).)

Or, it could be that having witnesses in such cases is only recommended and not obligatory, as evident from the Hadith that Khuzaymah bin Thabit Al-Ansari narrated which Imam Ahmad collected. `Umarah bin Khuzaymah Al-Ansari said that his uncle, who was among the Prophet's Companions, told him that the Prophet was making a deal for a horse with a bedouin man. The Prophet asked the bedouin to follow him so that he could pay him the price of the horse. The Prophet went ahead of the bedouin. The bedouin met several men who tried to buy his horse, not knowing if the Prophet was actually determined to buy it. Some people offered more money for the horse than the Prophet had. The bedouin man said to the Prophet , "If you want to buy this horse, then buy it or I will sell it to someone else.'' When he heard the bedouin man's words, the Prophet stood up and said, "Have I not bought that horse from you'' The bedouin said, "By Allah! I have not sold it to you.'' The Prophet said, "Rather, I did buy it from you.'' The people gathered around the Prophet and the Bedouin while they were disputing, and the bedouin said, "Bring forth a witness who testifies that I sold you the horse.'' Meanwhile, the Muslims who came said to the bedouin, "Woe to you! The Prophet only says the truth.'' When Khuzaymah bin Thabit came and heard the dispute between the Prophet and the bedouin who was saying, "Bring forth a witness who testifies that I sold you the horse, '' Khuzaymah said, "I bear witness that you sold him the horse.'' The Prophet said to Khuzaymah, "What is the basis of your testimony'' Khuzaymah said, "That I entrusted you, O Messenger of Allah!'' Therefore, the Messenger made Khuzaymah's testimony equal to the testimony of two men. This was also recorded by Abu Dawud and An-Nasa ®299؛. Allah's statement,

﴿وَلاَ يُضَآرَّ كَاتِبٌ وَلاَ شَهِيدٌ﴾

(Let neither scribe nor witness suffer (or cause) any harm) also indicates that the scribe and the witness must not cause any harm, such as, when the scribe writes other than what he is being dictated, or the witness testifies to other than what he heard or conceals his testimony. This is the explanation of Al-Hasan and Qatadah.''

Allah's statement,

﴿وَإِن تَفْعَلُواْ فَإِنَّهُ فُسُوقٌ بِكُمْ﴾

(But if you do (such harm), it would be wickedness in you) means, "If you defy what you were commanded and commit what you were prohibited, then it is because of the sin that resides and remains with you; sin that you never release or rid yourselves from.''

Allah's statement,

﴿وَاتَّقُواْ اللَّهَ﴾

(So have Taqwa of Allah) means, fear Him, remember His watch over you, implement His command and avoid what He prohibited,

﴿وَيُعَلِّمُكُمُ اللَّهُ﴾

(And Allah teaches you. ) Similarly, Allah said,

﴿يِـأَيُّهَا الَّذِينَ ءَامَنُواْ إَن تَتَّقُواْ اللَّهَ يَجْعَل لَّكُمْ فُرْقَانًا﴾

(O you who believe! If you have Taqwa of Allah, He will grant you Furqan ﴿(a criterion to judge between right and wrong)﴾) ﴿8:29﴾, and,

﴿يأَيُّهَا الَّذِينَ ءَامَنُواْ اتَّقُواْ اللَّهَ وَءَامِنُواْ بِرَسُولِهِ يُؤْتِكُمْ كِفْلَيْنِ مِن رَّحْمَتِهِ وَيَجْعَل لَّكُمْ نُوراً تَمْشُونَ بِهِ﴾

(O you who believe! Have Taqwa of Allah, and believe in His Messenger, He will give you a double portion of His mercy, and He will give you a light by which you shall walk (straight)) ﴿57:28﴾.

Allah said;

﴿وَاللَّهُ بِكُلِّ شَيْءٍ عَلِيمٌ﴾

(And Allah is the All-Knower of everything) stating that Allah has perfect knowledge in all matters and in their benefits or repercussions, and nothing escapes His perfect watch, for His knowledge encompasses everything in existence.

﴿وَإِن كُنتُمْ عَلَى سَفَرٍ وَلَمْ تَجِدُواْ كَاتِبًا فَرِهَـنٌ مَّقْبُوضَةٌ فَإِنْ أَمِنَ بَعْضُكُم بَعْضًا فَلْيُؤَدِّ الَّذِى اؤْتُمِنَ أَمَـنَتَهُ وَلْيَتَّقِ اللَّهَ رَبَّهُ وَلاَ تَكْتُمُواْ الشَّهَـدَةَ وَمَن يَكْتُمْهَا فَإِنَّهُ ءَاثِمٌ قَلْبُهُ وَاللَّهُ بِمَا تَعْمَلُونَ عَلِيمٌ ﴾

(283. And if you are on a journey and cannot find a scribe, then let there be a pledge taken (mortgaging), then if one of you entrusts the other, let the one who is entrusted discharge his trust, and let him have Taqwa of Allah, his Lord. And conceal not the evidence, for he who hides it, surely, his heart is sinful. And Allah is All-Knower of what you do.)

 
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