The proofs marshalled by the second group—those who hold that the debtor should be jailed until he pays what he owes or dies in custody, whereupon the judge sells his estate and distributes the proceeds among the creditors—include the following:
• The ḥadīth of Jābir ibn ʿAbd Allāh. When Jābir’s father was martyred at the Battle of Uḥud he left behind outstanding debts, and the creditors pressed their claims. Jābir relates: “I went to the Prophet—peace and blessings be upon him—spoke with him, and asked that they accept my palm-grove in payment and absolve my father. They refused, and the Messenger of Allah—peace and blessings be upon him—did not turn over the grove to them. Instead he said, ‘I will come to you tomorrow morning.’ At daybreak he came, walked around the date-palms, and prayed for blessing upon their fruit. I then harvested the crop, settled everything that was due, and still some of the dates remained.”
• It is also reported that when Usayd ibn Ḥuḍayr died owing ten thousand dirhams, ʿUmar ibn al-Khaṭṭāb summoned the creditors and granted them the usufruct of Usayd’s land for four years in satisfaction of the debt.
They say: None of these reports contains any indication that the principal of a man’s property was ever sold to discharge a debt.
They further cite the Prophet’s statement—peace and blessings be upon him—“A solvent debtor’s procrastination permits his honor and his punishment,” maintaining that “punishment” here means imprisonment. Some of them also liken the creditors’ claim to the very corpus of real estate to their claim to its profits.
If we state that the bankrupt is legally interdicted, we must ask: In respect of what is he interdicted? For which types of debts does pro-rata distribution apply? To which parts of his estate does it apply, and in what manner?
The bankrupt finds himself in two distinct situations: one at the moment insolvency occurs, before the court’s interdiction, and another after the interdiction has been pronounced.
- Before interdiction. According to Mālik, the debtor may not destroy or consume any of his wealth without compensation when the expenditure is neither obligatory upon him nor customary in his circumstances. The restriction to non-obligatory expenses is because he is allowed to do whatever the Sacred Law requires even without compensation—such as supporting impoverished parents or children. The reference to what is not customary is because he may dispose of small amounts of wealth gratuitously in ways that people normally do, like offering an animal for the ʿīd sacrifice, spending modestly during the festival, or giving a small charity. Custom is likewise considered when he spends with counter-value, for example on marriage or his wife’s maintenance.
He may buy and sell so long as there is no favoritism involved, and he may acknowledge a debt in favor of someone with whom he is not suspected of collusion. Mālik’s own statements differ regarding whether he may pay some creditors ahead of others or pledge property.
- The majority of those who uphold interdiction, however, maintain that before a judicial ruling the debtor is like any other person, because the default in transactions is permissibility until interdiction is actually imposed. Mālik, by contrast, appears to give weight to the substantive reality—that the debt has overtaken his wealth—though he does not apply that rule in every circumstance; he still allows the debtor to buy and sell when no favoritism is present, a liberty he does not extend to one who has already been formally interdicted.