Chapter on the Inheritance of a Missing Person

Lexically, the term “missing” (mafqūd) is the passive participle of fa-qada, “to lose a thing”; faqd is to look for something and fail to find it. In the present discussion, a “missing person” is one whose news has been completely cut off and whose condition is unknown—no one knows whether he is alive or dead—regardless of whether his disappearance was due to travel, participation in battle, the sinking of a ship, captivity at the hands of hostile forces, or any similar circumstance.

Because, at the moment he goes missing, his situation is equally susceptible of two possibilities—continued existence or death—each of these possibilities carries its own legal consequences: rulings concerning his wife, rulings concerning his inheriting from others, others inheriting from him, and others inheriting alongside him. Since neither possibility outweighs the other, a waiting period must be fixed that allows time to search for him; if that period elapses with no information whatsoever, the lapse itself serves as evidence that he is no longer alive.

Accordingly, the scholars are unanimous that such a period must be set, but they differ over its length, forming two opinions:

First opinion: the length of the period is left to the discretion of the judge, for the default presumption is that the missing person is alive, and this presumption cannot be overturned except by certainty or what is tantamount to certainty. This is the view of the majority, whether the circumstances of his disappearance suggest safety or suggest destruction,