What is an "Oath" and If you vow to do something and you don't, then how do you compensate for it?
Submitted by on Thu, 03/09/2009 - 00:59
Dear Brother / Sister,
Yamin (oath) is a fiqh term that means right hand, power, favorable location, wounding, swearing an oath or taking a vow to confirm a piece of news or to strengthen a will or claim about doing something or not by using the name of Allah or by promising to divorce one’s wife or to free a slave.
Swearing an oath is usually used for the vows in which one of the names or the essential attributes of Allah mentioned. It is disputable whether the vows in which the words divorce or freeing a slave is uttered are oaths or not (Kasani, Badaiu's-Sanai,III, 2).
Although there are some nuances between the words qasam and khilf, and yamin they are used as synonyms (Kasani, ibid; Lisanu'l Arab, XIII, 462).
The relationship between the concept and the meaning of the word is that the oath strengthens the word and those who take vows hit their right hands of each other (Mawsili, al-Ikhtiyar, IV, 45).
Swearing an oath is legitimate in contracts and disputes. Its legitimacy is definite in the Quran and Sunnah. Many chapters of the Quran start with oaths on different objects. The chapters of at-Tin, ash Shams and al-Fajr are examples of it. In the 225th verse of al-Baqara and 89th verse of al-Maeda, Allah states that He will not call His slaves to account for yamin al-laghw (unintentional oaths). It is also stated in the 89th verse of Chapter al-Maeda that what Allah will call His slaves to account for is yamin al-munaqida (deliberate oaths); keeping vows are ordered and how to compensate for breaking vows is explained in the same verse. In addition, the following verses are evidence that swearing an oath is legitimate; an-Nahl (16) 38, 92, 94; Aal-e-Imran (3) 77; al-Maeda (5) 53, 108; al-Anam (6) 109; at-Tawba (9) 12,13; an-Nur (24) 53; al-Fatir (35) 42; al-Mujadala (58) 16; al-Munafiqun (63) 2.
In a hadith, Hazrat Prophet ordered his umma (community) not to swear oaths using the names of their fathers and idols and to use the name of Allah if they had to swear an oath, otherwise not to swear an oath. (Ahmad b. Hanbal, Musnad, II, 7; Tirmidhi, Nuzur, 8).
The Messenger of Allah himself swore oaths. One of the phrases that he used the most while swearing an oath was: "I swear by Allah, Who has my soul or the soul of Muhammad in His hand (For examples, see Ibn Majah, Kaffarah 1; Ahmad b. Hanbal, ibid, IV, 16).
Kinds of Oath
Oaths are divided into two as oaths sworn by Allah and oaths sworn by any other beings except Allah. Oaths sworn by Allah are also divided into parts.
Oaths sworn by Allah:
Oaths sworn by Allah in the form of qasam are uttered by using one of the letters: "ba, wa, ta" before "Allah" or before His attributes like "Iizah, jalal, azamah" (Mawsili, ibid, IV, 49, 50; Shirbini, Mughni'l-Muhtaj, IV, 320, 312). The most widely used words of oaths among Muslims are: "wallahi, billahi and tallahi".
No oaths can be taken using anything other than the names and essential attributes of Allah. According to Hanafis, it is not permissible to swear oaths using the names of beings that are regarded as holy by Muslims like, Nabi, the Quran, the Kaaba (Kasani ibid, III, 5-10; Marghinani, al-Hidaya," II, 72; Mawsili ; IV, 51).
According to Imam Shafii, Imam Malik and Imam Ahmad b. Hanbal, the oaths sworn by the Quran, the verses of the Quran and the Mushaf are valid. If they are broken, kaffarah (paying poor people a certain amount of money for atonement) is necessary (Ibn Qudama, al-Mughni, XI,194,195). According to Hanbalis, it is not permissible to swear oaths by the Kaaba and other beings but it is permissible to swear oaths by the name of the Prophet. (Ibn Qudama, ibid, XI, 210)
It is not necessary to utter the oath in Arabic to be valid. Oaths can be sworn in other languages too. Resources point out that oaths can be sworn by some Persian phrases. (See Marghinani, ibid, II, 74; Fatawa'l-Kadihan, II, 7; al-Fatawa'l-Hindiyya, II, 57).
Accordingly, the phrases like “I swear, I make a vow, I take a vow” are regarded as oaths. However, phrases like “by my holy things, by my honor” should not be regarded as oaths because they are not taken by the name of Allah or His attributes. Marghinani says it depends on the customs and tradition as to which words can be used as oaths. (Marghinani, ibid) Although those words have become known as oaths in some places, it is not possible to regard them as a widespread custom.
Along with the oaths mentioned above, if a person makes something permissible haram for himself or if he takes a vow that he will become a Jew or a Christian, etc if he does or does not do something, they are all regarded as oaths. (Marghinani, ibid, II, 74; Mawsili, ibid, IV, 52, 53).
According to a view reported from Imam Shafii, Imam Malik and Ahmad b. Hanbal, those kinds of words are not regarded as oaths and kaffarah is not necessary if they are broken. (Ibn Qudama, ibid, XI, 199, 200; Shirbini, Mughni'l-Muhtaj, IV, 324; Wahba az-Zuhayli, al-Fiqhu'l-Islami wa Adillatuhu, III, 344).
Oaths sworn by mentioning the name of Allah are divided into three: ghamus, laghw and munaqida;
Yamin ghamus is committing perjury deliberately about something in the past or present. For instance, if a person says that he has paid his debt although he knows that he has not or if he says that he has no money on him although he has and swears an oath, it is yamin ghamus. Such an oath is a grave sin. Allah says the following in the 77th verse of Chapter Aal-e-Imran; " As for those who sell the faith they owe to Allah and their own solemn plighted word for a small price, they shall have no portion in the Hereafter: nor will Allah (deign to) speak to them or look at them on the Day of Judgment, nor will He cleanse them (of sin); they shall have a grievous penalty ". According to what Ash’as bin Qays reports, that verse was sent down when his cousin claimed that he had rights over a well belonging to him and if Ash’as did not produce evidence he would swear an oath (commit perjury) (Abu Dawud, Sunan, Ayman, 1; Ibn Qudama, ibid, XII, 122). Hazrat Prophet (pbuh) states in many hadiths that to commit perjury in order to obtain others’ goods is a grave sin like associating partners with Allah, killing a person, disobeying and that those kinds of people will be deprived of paradise and deserve hell and therefore they should get ready for their places in Hell. (See Bukhari, Ayman, 16, 18, al-Murtaddin, 1; Muslim, Eeman, 220, 221; Abu Dawud, Ayman, 1 ; Tirmidhi, Buyu, 42; Ibn Majah, Ahkam, 7; Ahmad b. Hanbal, I, 379, 442, V. 211, 212; Zaylai, Nasbu'r-Raya, III, 292, 293).
According to Hanafis, Hanbalis and Malikis, there is no kaffarah for yamin ghamus. Such a person has to ask forgiveness from Allah and repent because such an oath is a great boldness against Allah and disdaining Him; it is not possible to eliminate such a sin with kaffarah. Hazrat Prophet (pbuh) said in hadith that there was no kaffarah for five things and he listed the oath that a person had to keep among them. (Shawkani, Naylu'l-Awtar, VIII, 264). What is meant by there is no kaffarah means that kaffarah cannot eliminate the sin of that oath. Kasani (d 587/1191) says repenting and asking for forgiveness are kaffarah for yamin ghamus (Kasani, ibid, III,15). According to Shafiis, kaffarah is necessary for that oath. (Marghinani, ibid, II, 72; Ibn Qudama, XI, 178; Shirbini, ibid, IV; 325).
According to Hanafis, yamin laghw is an oath taken by mistake, that is, an oath that the person who takes it thinks that what he says is true but it is not true. That oath can be related to the past or the present. For instance, the oath that a person takes saying he has paid his debt thinking that he has paid it but actually he has not or the oath that a person takes saying he has no money on him thinking that he has no money but he actually has is yamin laghw. (Kasani, ibid" III, 17; Marghinani, ibid, II, 72; Mawsili, ibid, IV, 46). That view of Hanafis was reported from many sahaba and tabi’in. (See Zaylai, Nasbu'r-Raya, III, 293).
According to Shafiis, yamin laghw is the words like “no, wallahi (by Allah), yes wallahi” a person says by mistake while talking (Shirbini, ibid, IV, 324, 325). That explanation of yamin laghw was reported by Hazrat Aisha from Hazrat Prophet (Bukhari, Ayman,15; Abu Dawud, Ayman, 6).
Some other explanations were reported from Hazrat Prophet for yamin laghw. For instance, in a hadith, the following is stated: "the oath of archers is laghw; no kaffarah is necessary for it. (Haythami, Majmau'z-Zawaid, IV, 185).
Scholars agree that a person is not regarded to have committed a sin due to yamin laghw and that no kaffarah is necessary because Allah has stated that He will not call His slaves to account for yamin al-laghw. (al-Maeda, 5/89).
Shafiis do not include that oath, which is called yamin laghw by Hanafis in that group and they are of the opinion that kaffarah is necessary for the oaths that are sworn unintentionally (by mistake).
Yamin munaqida is an oath that is sworn to do or not to do something. That oath is related to the future. If a person swears an oath that he shall go somewhere or he shall not speak to someone again, it is called yamin munaqida.
Yamin munaqida is divided into three as: mursal, muwaqqat and fawr.
1- Yamin mursal: It is an oath that is sworn to do or not to do something without stating time. A person who swears an oath that he shall do something but does not say when, it is called yamin mursal. He can do it before the time of his death and be freed from it. His oath is not regarded to have been broken with the passing of a certain period of time.
That oath is also called “yamin mutlaq” (absolute oath)
2- Yamin muwakkat: It is an oath that is sworn stating a period of time. That oath is based on the time that is stated. When that period of time ends, the obligation of that oath ends too. For instance, if a person swears an oath that he shall not eat fruit for three days, he will not be regarded as having broken his oath if he eats fruit after three days pass.
If a person who swears an oath that he shall do something within a certain period of time does it during that period, he is regarded to have kept his oath. If he does not do it during that period and does it later, he is regarded to have broken his oath and kaffarah becomes necessary for him. If a person dies before the certain period of time passes, he is not regarded to have broken his oath according to Abu Hanifa and Muhammad. He is regarded to have broken his oath according to Abu Yusuf.
That oath is also called “yamin muqayyad (conditioned oath)
3- Yamin fawr: It is an oath connected with a reason. In other words, it is an oath that implies the presents not the future. An oath sworn while answering a question is like that. For instance, when someone comes to a place and meets some people eating and when they invite him to eat, he says, “Wallahi I shall not eat”; it is yamin fawr. It is not related to the future but to the present. Therefore, if that person eats something later, that eating does not break his oath. (Tahanawi, Kashshafu Istilahati'l-Funun, II, 1549, 1550; Muhammed Rawas Qal'aji, Hamid Sadık Qunaybi, Mu'jamu Lughati'l-Fuqaha, 514).
In yamin munaqida, doing what the oath necessitates is called barr, not doing what is necessary is called bârr, breaking the oath is called hins, and the person who breaks his oath is called hanis. A person who does what the oath necessitates is freed of the oath. A person who breaks his oath needs kaffarah. What is necessary in an oath is to act accordingly (be loyal). However, it may change depending on the religious decree of the thing sworn. Therefore, scholars divide being loyal to the oath into five:
1- Oaths that are wajib to do what it necessitates: To perform a fard worship, to save an innocent person from death, to act in accordance with orders that are given in order to abandon a haram. Hazrat Prophet said (pbuh) "A person who takes an oath to obey Allah should obey Him. A person who does not do what an oath like that necessitates becomes a sinner; he needs to repent and ask for forgiveness; in addition, he has to pay kaffarah for yamin.
2- Oaths that are haram to take but wajib not to carry out:
To swear an oath in order to abandon a fard or to commit a haram act is a haram oath; it is fard to break it. Therefore, for instance, a person who swears an oath that he shall not talk to his parents must talk to his parents, that is, he must break his oath and pay kaffarah. In addition, he should repent because he swore an oath for something haram. Hazrat Prophet said: if someone swears an oath for something and if he sees that something else is better, he should pay kaffarah for his yamin and then do that better thing. (Nasai, Ayman, 41; Abu Dawud, Ayman, 12).
In another hadith, the following is stated: "there is no swearing oath or vow in disobedience to Allah, abandoning visiting one’s relatives, and in the things that you do not own.” (Abu Davud Ayman, 12; Nasai, Ayman, 17; Ibn Majah Kaffarah, 8; Ahmad b. Hanbal, II, 185, 202).
According to Sha’bi, a person who swears an oath that he shall commit a haram must break his oath, that is, he must not commit that haram. There is no need for him to pay kaffarah because Hazrat Prophet said that not committing haram by a person was kaffarah for the oath of that person (Abu Dawud, Ayman, 12).
Hanafis base their views on the apparent meaning of the verse stating that the slaves would be called to account for yamin munaqida. (al-Maeda, 89).
3- Yamins that are mandoob (recommended) to keep: They are oaths that are related to a good thing.
It is mandoob to keep an oath that is sworn to do a mandoob act. To break such an oath is makrooh (abominable); kaffarah is necessary.
4- Yamins that are mubah (permissible; neither obligatory nor forbidden):
It is mubah to do or not to do something mubah or to swear an oath for a piece of news that is true. It is better to break such an oath. If it is broken, kaffarah is necessary.
5- Yamins that are makrooh:
It is makrooh to swear an oath to commit something makrooh or to abandon something mandoob. It is makrooh to swear an oath while buying or selling something. It is better to break such an oath and pay kaffarah. It is makrooh to be loyal to the oath. (Kasani, ibid, III, 17, 18; Ibn Qudama, al Mughnî, II, 167; Necati Yeniel-Hüseyin Kayapınar, Süneni Abu Davud Terceme ve Şerhi, XII, 236).
According to Hanafis and Malikis, the oaths that are sworn by forgetting, by mistake, by force or unintentionally are valid because the verse mentioned above is definite. There is no mention whether the oath can be intentional or unintentional. In addition, Hazrat Prophet (pbuh) said in a hadith that both joking and being serious in the issues of swearing an oath, divorce and marriage are regarded as serious. (Abu Dawud, Talaq; 9; Tirmidhi, Talaq, 9; Ibn Majah, Talaq, 13; Kasani, ibid, III,18; Wahba az-Zuhayli, al-Fiqhu'l-Islami wa Adillatuhu, III, 367).
According to Shafiis and Hanbalis, a person who breaks his oath forgetting about it is not regarded as hanis. Therefore, kaffarah is not necessary. Their evidence is the verse stating that there is no blame on people if they make a mistake (al-Ahzab, 5) and the hadith stating Muslims will not be held responsible for the deeds that they did by mistake, forgetting and by force (Ibn Majah, Talaq, 16).
According to Abu Hanifa and Malik, a person who breaks his oath by force pays kaffarah; according to Ahmad b. Hanbal he does not pay kaffarah. Two different views were reported from Imam Shafii regarding the issue. (Ibn Qudama, ibid, XI, 177, 178).
If the phrase “insha-Allah” (if Allah wills) is uttered just after the oath, no kaffarah is necessary if the oath is broken because Hazrat Prophet (pbuh) said "A person who swears an oath and says insha-Allah can abandon that oath without breaking it." (Abu Dawud, Ayman, 9; Nasai, Ayman,18; Ahmad b. Hanbal, II, 6, 49). However, that rule becomes valid if nothing is spoken or if a period of silence long enough to speak passes between the oath and saying insha-Aallah.
According to what Ibn Qudama states, four madhhabs agree that kaffarah is not necessary if the phrase “insha-Allah” is uttered (Ibn Qudama, ibid, XI, 227).
Kaffarah of Yamin
Kaffarah is necessary when yamin munaqida is broken no matter what kind it is. Normally, kaffarah is paid after the oath is broken. There is no controversy among the scholars that the kaffarah paid after the oath is broken is valid. However, it is controversial whether kaffarah that is paid before the oath is broken is valid or not. According to Hanafis, kaffarah must definitely be paid after the oath is broken no matter if it is paid by goods or by fasting. It is not permissible to pay kaffarah before the oath is broken. According to Shafiis, if kaffarah is to be paid by goods, it can be paid before the oath is broken. According to Hanbalis and Malikis, it is permissible to pay kaffarah before the oath is broken no matter if it is paid by goods or by fasting.
If kaffarah is paid before swearing an oath and if the oath is broken later, kaffarah is not valid. There is no controversy about it. (Kasani, ibid, III,18; Ibn Qudama, ibid, XI, 223-226; Shawkani, Naylu'l-Awtar VIII, 268, 269; Necati Yeniel-Hüseyin Kayapınar, ibid, XII, 237, 138).
Kaffarah of Yamin for a person is to free a slave if he can afford, to feed ten poor people in the morning and in the evening, or to buy normal clothes for ten poor people. The person who has broken his oath can prefer any of them. However, if he cannot afford any of them, he should fast three days on end. The three days cannot be interrupted by any reason including menstruation period; if it is interrupted, the person should start fasting for three days on end again. It is certain by the Quran that kaffarah of yamin is necessary and that it should be paid like that. The verse is quite clear. (See al-Maeda, 5/89). There is no controversy about the issue.
2. Oaths sworn by mentioning the name of beings other than Allah
Oaths sworn by mentioning the name of beings other than Allah are divided into two:
a- Oaths sworn by mentioning the name of beings other than Allah like fathers, mothers, angels, etc: We have mentioned above that it is not permissible to swear oaths like that and that Hazrat Prophet prohibited swearing oaths like that. Since it is not permissible to swear oaths using those words, it is not right to call them as oaths.
b- Oaths sworn by stating a condition: Those oaths can be dealt with in two groups:
ba- Oaths that are connected with kinds of worship: For instance if someone says, “I will fast for three days if I do this and that”, it is an oath because he has uttered those words in order to prevent his soul from doing it. In another aspect, it is a vow because he has laid it as a condition to perform a kind of worship. It is more appropriate to regard such an utterance as a vow. (Kasani, III, 21).
bb- Oaths that are not connected with kinds of worship but with divorce or freeing slaves: If someone says that when something happens he will divorce his wife or free his slave, he is regarded to have sworn an oath concerning freeing a slave or divorcing his wife. Such kinds of oaths are called conditioned divorce. The reason why such words are regarded as an oath is that they strengthen a person to encourage to do something or to prevent him from doing something. (Ö. Nasuhi Bilmen, Hukukî İslâmiyye ve İstıhâhâtı Fıkhıyye Kamusu, II, 232).
When the mentioned thing happens, if the man’s intention is to divorce his wife or to free a slave but to encourage himself to do something or to prevent him from doing something, his wife becomes divorced and his slave becomes free. There is no disagreement among the scholars relating the issue because it is not an oath but to lay something as a condition for divorce. However, if the man’s intention is not to divorce his wife but to force himself to do or not to do something, what is the judgment? There are different views relating the issue. Let us explain it by an example: “If an alcoholic says, If I drink again, let my wife be divorced” in order to give up drinking or to force his soul to give up drinking and if he breaks his oath, that is, if he drinks again, what will happen? There are three views about the issue:
1- That sentence is invalid; it is neither a divorce nor an oath because it is neither a divorce nor an oath in accordance with the form that Allah demands. Then, someone who utters such a sentence and then does that thing, is not regarded to have divorced his wife and kaffarah is not necessary for him. That view is attributed to Hazrat Ali. Zahiris and some Malikis are of that opinion.
2- A person who has uttered such a sentence has sworn an oath and has broken his oath because his intention is not to divorce his wife but to give up drinking. Therefore, kaffarah is necessary since he has broken his oath; his wife does not become divorced. Ibn Taymiya and Ibn Qayyim al-Jawziyya of Hanbali madhhab are of that opinion. (Ibn Taymiya al-Fatawa'l-Kubra, 1-5, Beirut, II, 110; Ibn Qayyim al-Cawziyya, Ilamu'l-Muwaqqin, IV, 17 et al.).
3- If divorce or freeing a slave has been associated with a condition and if that condition takes place, the woman becomes divorced or the slave becomes free. In the example above, when the man drinks, his wife becomes divorced. The views of four madhhabs regarding the issue are similar. (Kasani, ibid, III, 21 et al; Marghinani, ibid, II, 250 et al; Mawsili, ibid, III,140 et al; Ibn Qudama, ibid, VIII, 335, 336; Ö. Nasuhî Bilmen, ibid, II, 232; et al.; Zühaylî, ibid, III, 388 et al.).
The Effect of Yamin on the Decision of the Judge
If the plaintiff cannot prove his claim in the court, he has the right of offering swearing oaths to the defendant. The oath can be about his own deed or another person’s deed in the positive or negative way; such as saying, “I swear by Allah that I have not sold it or bought it, or I have sold it or bought it. A person knows his own situation and deeds better than others do. Therefore, his oath is regarded as evidence to end the dispute.
According to a narration from Ibn Abbas (may Allah be pleased with him), Hazrat Prophet (pbuh) offered swearing an oath to a person and said to him, “Say, ‘I swear by Allah, there are no gods but Him, the plaintiff has no rights on me’” The following was reported from Ash'as b. Qays. He said: A person from Kinda and someone from Hadramut argued and accused each other for some land in Yemen in the presence of Hazrat Prophet. The one from Hadramut claimed that the father of the person from Kinda captured his land and that the person from Kinda still had his land. Hazrat Prophet asked the plaintiff about his evidence. He said, “I have no evidence but I swear that he does not know that my land was captured by his father. Thereupon, the person from Kinda was offered to swear an oath. (Abu Dawud narrated).
Islamic scholars state that there needs to be seven conditions in an oath. They can be listed as follows:
1- The person swearing an oath must be at least at the age of puberty, must have the power to discriminate between the good and the bad and must be free;
2- The defendant must deny his right;
3- The plaintiff must demand swearing an oath from the judge and the judge must offer the defendant to swear an oath;
4- The oath depends on the person himself; no deputy or representative is accepted for the oath. Since the oath is related to the trust and religion of the person to swear, a guardian or deputy cannot use that right.
5- It must not be related to the rights of Allah.
6- It must be related with the rights that are permissible. In the hadiths, the following is stated: “The evidence is to be provided by the plaintiff and the oath by the defendant. The oath is not valid for goods that are not permissible.
7- There must not be any evidence or the evidence must be insufficient.
The kinds of oaths in the court:
1- The oath of the witness: It is the oath sworn by the witness be fore witnessing. It is a method that is used instead of the acquittal of the witness. Malikis, Zaydiyya, Ibn Abi Layla and Ibnu'l-Qayyim found that oath permissible because the time became corrupt and religious feelings weakened. Most of the Islamic scholars oppose the oath of the witness. (Wahba az-Zuhayli, al-Fiqhu'l-Islami wa Adillatuhu, VI, 600):
2- The oath of the plaintiff: According to the majority of the scholars except Hanafis, the plaintiff can swear an oath in order to save himself from the accusation. That oath can be sworn in order to prove his right or to reject the oath against him.
Although most of the Islamic scholars say that a judgment can be made by one witness and by the evidences of oath presented to the court, Hanafis adopt the view that two witnesses are required by the verses and if there are not two witnesses, the defendant is to be offered to swear an oath as it is definitely stated by the hadith. (Ibn Rushd, Bidayatu'l-Mujtahid, III, 456, 459).
The oath becomes valid only in the presence of the judge and with his offer. Swearing an oath or abstinence from an oath outside the court is reliable because the oath is in question to end dispute. The oath is sworn upon the demand of the plaintiff. However, in five places, the judge offers swearing an oath on his own motion:
1- If a person claims that he has rights on an inheritance or some goods and proves it, the judge offers the plaintiff to swear an oath that there took place no transaction that annulled that right through other legal ways.
2- If a person claims that some goods belong to him and proves it, the judge offers him to swear an oath that no other transaction that ended his right on it took place.
3- If a customer returns some goods due to its fault, the judge offers him to swear an oath that he is not satisfied with the goods due to the fault.
4- The judge offers the holder of the pre-emptive right to swear an oath that he did not lose that right before.
5- When the judge decides that a woman whose husband is lost be paid alimony, the judge offers the woman to swear an oath that the marriage continues, that she has no allowance and that her husband did not leave any goods with her.
The person to whom swearing an oath is offered, wins the lawsuit. If he abstains from swearing an oath, he loses the lawsuit.
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