Third Chapter
On Determining the Legal Status of Their Acts with Respect to Invalidation and Ratification
The inquiry in this chapter revolves around two issues.
The first concerns the kinds of acts permitted to each category of those under interdiction, and, once they perform them, how those acts are to be treated—rejected or ratified—as well as the acts of the “neglected,” meaning those who reach puberty with neither father nor testamentary guardian. These, as noted earlier, are either minors, adults whose interdiction has continued uninterrupted since childhood, or adults newly placed under interdiction.
Minors—boys who have not yet reached puberty and girls who have not yet begun menstruating—are, by unanimous agreement of the school, barred from making any gratuitous disposal of their property: no gift, charity, grant, or act of manumission, even with the permission of a father or guardian. Should one of them nevertheless part with something without receiving any consideration, the transaction remains suspended pending the guardian’s review, if a guardian exists. If the guardian deems the act prudent, he may ratify it; otherwise he annuls it. Where no guardian is in place, one is appointed to look into the matter, and if that appointee acts in the case before he formally assumes charge, the authority to validate or void rests with him.
Scholars differ when the minor’s act amounts to sound management—something the guardian himself ought to have done—whether the guardian may later rescind it owing to market fluctuations, an increase in the value of what the child sold, or a decrease in what he purchased. The well-known opinion is that the guardian may do so; another view holds that he may not. The minor is liable for any damage he causes to property that he was not entrusted with. As for what he spoils or breaks of goods entrusted to him, the jurists disagree. After he attains puberty and sound judgment he is not required to free any slave whose emancipation he swore in childhood and then violated while still a child.
They also disagree about a case in which he swore the oath in childhood but broke it after reaching majority: the prevalent view is that he incurs no liability, whereas Ibn Kinānah holds that he does—though he is not required to swear an oath in response to claims brought against him.
Another dispute arises when only a single witness testifies on his behalf: must he take an oath alongside the witness? The famous position is that he does not; reports from Mālik and al-Layth state that he does.
The virgin girl under the authority of her father or a testamentary guardian is treated like the male so long as she has not remained unmarried into advanced age, according to the opinion that gives weight to such “late age.”
As for the adult prodigal: the majority of scholars maintain that if an interdicted person divorces his wife or effects a khulʿ, the divorce or khulʿ is valid; Ibn Abī Laylā and Abū Yūsuf disagree. Ibn Abī Laylā further holds that his act of manumission also takes effect, whereas the majority say it does not.
Regarding his bequest, I know of no disagreement that it is valid. He is not held by any gift, charity, grant, manumission, or other benevolent disposal—except that if he emancipates a slave-concubine who has borne him a child, that emancipation is binding. All of this is the established doctrine. Whether her property follows her emancipation is disputed: some say it does, others say it does not, and a third view distinguishes between a small and a large estate.
Any transaction he concludes for consideration is likewise suspended pending the guardian’s decision. If he has no guardian, one is appointed; and if the guardian rescinds the sale after the ward has consumed the price, the ward is not required to reimburse anything—nor, similarly, if he has destroyed the very article sold.
According to Mālik, the rulings governing the acts of the interdicted and the neglected fall into four states:
- Those whose every act is void, even when it displays prudence;
- Those whose every act is presumed valid, even when folly appears within it;
- Those whose