Office Of Grand Ayatollah Sayyid M.S.Al-Hakeem - Books-Islamic Laws Simplified - Restriction In Disposal (Hajr)

Books Islamic Laws SimplifiedRestriction In Disposal (Hajr)

  Mortgaging, Guaranty, Personal Surety And Transfer Of A Debt

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RESTRICTION IN DISPOSAL (HAJR)
 
 
This refers to the prevention and barring of a person in disposing of his affairs, whether in respect to his person or his property, due to shortcoming in his authority as will be explained.
 
Ruling 535: This may be caused by a number of reasons, the most common of which are as follows:
 
(1) Childhood: a child cannot dispose of his own affairs, even if he is perceptive and discerning, until he is an adult in the eyes of the Sharia. Some dispositions are excluded from this, like the communication of a will, or disposing of the property of another person with the latter’s permission, and the like.
 
(2) Insanity : such that he cannot discern between good and bad, nor between harm and benefit, and he does not make good decisions as those with normal intellect do.
 
(3) Foolishness: this is a psychological state whereby one has a shortcoming in understand things, such that he may act in a way that will expose his wealth to loss, corruption or abuse.
 
(4) Bankruptcy: this is when one’s total wealth is less than the debts he owes, and when his matter is raised to the hakim shar’i to resolve who will demand all his debts to be settled. If his total wealth is insufficient to do so, the hakim shar’i will assume the role of settling all the debts in a manner by which there is a shortfall in the payments to all creditors. As such, the hakim shar’i will effectively disallow the bankrupt person to use his wealth in any way that will hinder or prevent the repayment of the debts.
 
The Guardians
 
Ruling 536: The father and the paternal grandfather have the guardianship of the child in respect to the child’s person and his wealth, except in the matter of divorce and some branches of the matter of marriage. Both may appoint a custodian in the event of their deaths; however the custodian cannot override the right of the guardian. The father and the paternal grandfather also have the guardianship of an insane person until he becomes adult, at which point guardianship will be turned to the person closest to him in inheritance.
 
Ruling 537: As for somebody who is foolish in his affairs, if he is a child his guardianship will be with the guardians of children as explained above. If such foolishness came to him after he become an adult, as an obligatory precaution the guardianship belongs to the hakim shar’i along with the father and paternal grandfather, and then the closest to him in inheritance if he wishes so.

  Mortgaging, Guaranty, Personal Surety And Transfer Of A Debt

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