Ithaf Dhawi al-Itqan bi-Hukm al-Rihan
- Author died
- 1069 AH
- Editions
- مخطوط ينشر لأول مرة بالمكتبة الشاملة
Ithaf Dhawi al-Itqan bi-Hukm al-Rihan (Gifting Those of Mastery Regarding the Legal Ruling on Pledged Property) is a legal treatise on Hanafi jurisprudence by the Egyptian jurist al-Shurunbulali (d. 1069 AH / 1659 CE) . It addresses the legal status of purchasing and endowing property held under a pledge (rihan or rahn) .
Background and Purpose
The treatise was completed in Dhu al-Qa'da 1057 AH (1647 CE) . It forms part of al-Shurunbulali's collected legal treatises (al-Tahqiqat al-Qudsiyyah) .
Al-Shurunbulali authored the work in response to a practical query regarding an heir who purchased real property ('aqar) that had been held as a pledge under the possession of the bequeather and subsequently endowed it as a pious trust (waqf) . Another contemporary Hanafi scholar had issued a fatwa declaring both the purchase and the endowment void (batil) . Disagreeing with that ruling, al-Shurunbulali wrote the treatise to articulate what he maintained to be the correct position under Hanafi law, supported by classical textual authorities .
Legal Arguments and Contents
Al-Shurunbulali argues that the heir's purchase and subsequent endowment of the pledged property are legally valid and operative (sahih nafid) to the extent of their inherited share, because the transaction aligns with actual ownership . With respect to the shares of the remaining heirs, the transaction is suspended (mawqūf), and the other heirs do not have the right to annul the sale, following the sounder transmission (al-asahh) in the school that a pledgee cannot unilaterally void a pledgor's sale to a third party .
The text elaborates on several interconnected issues within the law of pledges and endowments:
- Terminology of Nullity: Al-Shurunbulali clarifies the conceptual distinctions between void (batil), irregular (fasid), and suspended (mawqūf) contracts, arguing that references to "void" in early texts concerning the sale of pledged assets are interpreted (mu'awwal) as suspended transactions rather than nullities .
- Manumission and Endowment of Pledged Property: He analyzes rulings concerning the manumission ('itq) or post-mortem emancipation (tadbir) of pledged slaves by the pledgor (rahin) versus the purchaser, and draws analogies between manumitting a slave and placing land into an endowment .
- Insolvency of the Pledgor: The treatise explores whether an insolvent pledgor's endowment of a pledged asset may be annulled or whether it remains suspended while the debt is serviced from the endowment’s proceeds .
To substantiate his determinations, al-Shurunbulali engages classical Hanafi works, citing authorities such as Fakhr al-Din al-Zayla'i in Tabyin al-Haqa'iq, Hafiz al-Din al-Nasafi in Kanz al-Daqaiq, Ibn al-Humam in Fath al-Qadir, Najm al-Din al-Tarsusi in Anfa' al-Wasa'il, as well as al-Atqani in Ghayat al-Bayan, al-Is'af, al-Dhakhirah, and al-Muhit .
Manuscripts and Editions
Manuscript copies of the treatise are preserved in various collections, including the Rashid Efendi Library in Kayseri, the Khuda Bakhsh Oriental Public Library in Bankipore, collections in Medina, and the Zahiriyya Library in Damascus . The text has been edited by Abu al-Mundhir Mahmud ibn Muhammad ibn Mustafa al-Minyawi based on two manuscript witnesses .
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