Section

It is generally unnecessary to base fatwas on this principle. Rather, most questions concerning oaths by divorce or manumission, oaths sworn by Allah Most High, vows, declarations of prohibition, and the like require certain governing rules.

The First Rule

If someone swears not to do something, then does it while forgetting his oath or without knowing that it is the very thing covered by his oath, the scholars hold three positions concerning him.

The first position is that he does not break his oath in any such case, regardless of the type of oath. This is the position of the Meccan scholars, such as ʿAtāʾ, Ibn Abī Najīh, ʿAmr ibn Dīnār, and others, as well as that of Ishāq ibn Rāhawayh. It is also one of al-Shāfiʿī’s two positions—indeed, the stronger of the two—and one of the two positions reported from Ahmad.

I examined Ahmad’s response as transmitted in this report and found that its transmitters were as numerous as those who transmitted his response in the second report, which was adopted by his follower al-Khallāl, al-Khiraqī, al-Qādī, and others of his school. This second position distinguishes between oaths that admit of expiation—such as oaths sworn by Allah Most High, zihār declarations, and declarations of prohibition—and oaths that, according to his explicit ruling, do not admit of expiation, namely oaths by divorce or manumission.

The third position is that he breaks his oath regardless of its type. This is the position of Abū Hanīfah and Mālik, and of Ahmad according to the third report from him.