with whom marriage has been consummated, and anything else due to them from him that is not specified by description as an outstanding obligation—proportional distribution in respect of these claims is obligatory. Where the consideration has not been received, however, there are five categories:
First: where he cannot deliver the consideration at all.
Second: where he cannot deliver the consideration itself but can deliver the property through which it is enjoyed.
Third: where he can deliver the consideration and is obliged to do so.
Fourth: where he can deliver the consideration but is not obliged to do so.
Fifth: where advancing delivery of the consideration is not within his power.
Where the consideration cannot be delivered, as with maintenance owed to wives for future periods, there is no entitlement whatsoever to participate in the proportional distribution.
Where the consideration itself cannot be delivered, but the property through which it is enjoyed can be delivered, an example is a man who rents a house with payment stipulated in advance, or where advance payment is customary, and then becomes insolvent before taking possession of the house, or after taking possession and occupying it for part of the term. In al-Mudawwana, Ibn al-Qāsim grants the landlord the right to participate in the proportional distribution for the rent corresponding to the remaining period, if he chooses to make the house available to the tenant. A similar opinion is reported from him in al-ʿUtbiyya. By analogy, if the tenant becomes insolvent before taking possession of the house, the landlord may hand it over and participate in the distribution for the entire rent.
This, however, is consistent only with Ashhab’s position that taking possession of the initial portion of a lease’s usufruct constitutes taking possession of the whole. He therefore permits accepting the use of a house on lease in settlement of a debt. As for Ibn al-Qāsim, consistency with his own principle requires that the landlord participate alongside the creditors for the rent corresponding to the elapsed period and recover his house. He would not be entitled to hand it over and participate alongside the creditors for the entire rent.
If advance payment was neither stipulated in the lease nor customary, then, according to the position discussed above, any share allotted to the landlord in the proportional distribution would have to be held aside. As the tenant occupied the house, the landlord would receive the corresponding amount from that sum.
An example of consideration that can and must be delivered is the price payable in advance under a salam sale, where the seller becomes insolvent before that price has been paid. According to Ibn al-Mawwāz’s book, the purchaser must pay it and participate in the proportional distribution alongside the creditors in respect of it. He has no preferential right to it, since it is not a pledge. This accords with Ashhab’s statement in al-Mudawwana that he has no claim to the food,