Book of Settlement (Ṣulḥ)

The legal basis for this chapter is the Almighty’s words, “Reconciliation is best” (Q 4:128), together with the Prophetic report—narrated both with an uninterrupted chain and as a statement of ʿUmar—saying, “Settlements concluded among Muslims are valid, except any settlement that makes the unlawful lawful or the lawful unlawful.”

The Muslims are unanimously agreed that ṣulḥ is permissible when the defendant acknowledges the claim. They differ, however, when the claim is denied. Mālik and Abū Ḥanīfah allow settlement in the face of denial, whereas al-Shāfiʿī does not, arguing that the defendant would thereby be consuming wealth wrongfully and without compensation. The Mālikīs reply that a consideration does exist: the dropping of litigation and the avoidance of an oath.

Within the Mālikī school there is no disagreement that a settlement reached after admission must meet the same conditions of validity that apply to sales. It is therefore vitiated by whatever vitiates a sale and validated by whatever validates it. Thus, if a man claims a sum of dirhams from another and, after the latter’s admission, they settle for dinars payable on credit, or engage in any similarly defective transaction involving usury or excessive uncertainty, the settlement is invalid.

With regard to a settlement reached in a case of denial, the well-known view of Mālik and his companions is likewise to apply the rules of sales. Hence, if someone claims dirhams from another, the latter denies the claim, and they then agree on deferred dinars, the settlement is impermissible according to Mālik and his followers.

Aṣbagh held it to be permissible, reasoning that the objectionable element concerns only one party—the claimant—who admits that he has taken dinars on credit in lieu of dirhams already due to him. As for the payer, he may say, “It is a gift from me.”

Should the objectionable element disappear from both sides—as when each party claims dinars or dirhams from the other, each denies the other’s claim, and they agree to defer what each alleges is owed to him until a set term—the transaction is merely disliked in their view.

It is considered disliked out of fear that both parties may be truthful, in which case each would be granting respite in return for being granted respite, leading to the prohibited arrangement of “Lend to me and I will lend to you.”

Yet it is still deemed permissible because each party can say, “What I have done is voluntary; nothing was obligatory upon me.”

Regarding this kind of transaction, some jurists say it stands once concluded, whereas Ibn al-Mājishūn holds that it is to be annulled if