who has fed him and given him drink.”

This report is further supported by the Prophet’s—peace and blessings be upon him—general statement:
“My nation has been excused for what it does by mistake, out of forgetfulness, or under coercion.”

Within this same discussion lies their disagreement about a person who thinks the sun has set, breaks his fast, and then the sun reappears: is he required to make up that day or not? Such a person is mistaken, and in Sacred Law the mistaken and the forgetful share the same ruling. Whichever position one adopts, the impact of forgetfulness in waiving the obligation to make up the fast is clear—Allah knows best.

If we say that the default principle is that the forgetful person is not liable for making up an act unless evidence proves otherwise, then forgetfulness cannot require making up the fast, for no evidence exists here—unlike the case of prayer.

If, on the other hand, we say that the default is that making up the act is obligatory until evidence removes that duty from the forgetful, then the ḥadīth of Abū Hurayrah is precisely such evidence, lifting the obligation.

Unless someone argues that the evidence distinguishing the fasting person who forgets from the forgetful in other acts of worship—where hardship is removed by explicit texts—is an analogy likening fasting to prayer. Yet basing the obligation to make up the fast on analogy is weak; for most jurists the requirement to make up an act is imposed only by a fresh, explicit command.

As for those who obligate both making up the day and expiation for one who has intercourse while forgetful, their view is weak, for the Law plainly shows that forgetfulness removes punishments, and expiation is a type of punishment. What led them to this view was their reliance on the ḥadīth’s unspecified wording—namely, that it does not state whether the act was intentional or forgetful. Likewise, anyone who obligates expiation for one who kills game while forgetful fails to keep to his own principle, for the text concerns only the deliberate offender. The Ẓāhirīs should have adhered either to the agreed-upon rule—that expiation is obligatory for the deliberate transgressor until proof extends it to the forgetful—or to the general prophetic maxim, “My nation has been excused for error and forgetfulness,” until specific evidence qualifies it. Yet both groups have abandoned their own foundations, and the unspecified account of the Bedouin furnishes no proof.

Some legal theorists have said that the Lawgiver’s silence about differing circumstances is tantamount to a general statement. This is weak, for the Lawgiver never issues a ruling except on a matter that is specified; any ambiguity exists only from our perspective.

The third issue—namely, their disagreement over whether expiation is required of a woman who voluntarily joins her husband in intercourse—is as follows: Abū Ḥanīfah and his disciples, as well as Mālik and his disciples, obligate expiation for her, whereas al-Shāfiʿī and Dāwūd hold that no expiation is due from her.