Khata' (error, unintended act)

الخطأ

Khata' is lexically the opposite of right; one who misses the way strays from it, and an archer who misses the target has not hit it; khati'a is a sin, the verb with intent being khatiya and without intent akhta'a. ¹² Technically it is an act done without intent toward the object of the act: Kamal ibn al-Humam gives the example of rinsing the mouth that reaches a fasting man's throat, and shooting at game that hits a human. ² Most jurists treat ghalat as equal to khata'; some Malikis distinguish that khata' is in the heart and ghalat in the tongue, yet ghalat takes khata's ruling; Abu Hilal al-'Askari distinguishes that ghalat is placing a thing out of its place and may be right in itself, while khata' is never right in any way. ² Most jurists use khata' for what slips from the tongue without intent, while the Malikis use ghalat for what concerns belief. ³ Near terms are forgetfulness, inattention, distraction and heedlessness; compulsion (forcing another against his will, short of compulsion that removes choice); jest (speaking without meaning); and ignorance, simple or compound; the one in error is not responsible for what he erred in. ³⁴ Ignorance and error excuse in what is forbidden, not in what is commanded; they excuse nothing in the rights of persons, so the ignorant and mistaken pay for what they destroy. ⁴ The usulis differ on whether the act of one in error can be called lawful or unlawful: al-Asnawi holds that lawful and unlawful apply to accountable persons, so the error is not described; al-Shatibi holds that error and forgetfulness are in a zone of pardon. ⁴⁵ Most jurists hold that error excuses some of God's rights but not all, citing the report "God has lifted from my community error and forgetfulness"; the rights of people are not lifted by error, so destroyed property and blood-money are owed, since that is a rule of ruling not of commanding. ⁵⁶ Al-Qurtubi distinguishes: the kind that is never lifted, such as fines, blood-money and the obligatory prayers; the kind always lifted, such as retaliation and uttering unbelief under duress; and the disputed kind, such as one who eats in Ramadan by forgetting. ⁶ The maxim "no weight is given to a clearly mistaken assumption" is held by the Hanafis and Shafiis; a case: one who thought the dawn was near and prayed it before the missed isha, then saw the time was long, must repeat the dawn prayer. ⁷⁸ Shafii cases: one who thought himself pure, prayed, and then his impurity appeared, or who prayed behind an imam he thought Muslim who proved an unbeliever, and so on, mostly void. The Malikis use the maxim of clear manifestation; Ibn Rajab sets out rules on one who disposes of what he thinks he does not own. ⁸⁹ Error in purity: one who judges a vessel or cloth by guesswork and then finds it impure must repeat, by the Hanafis, Shafiis and one Maliki view; the Hanbalis do not apply the same rule. Error in the intention for wudu: by agreement of Malikis, Shafiis and Hanbalis the lesser intention can be overtaken; the Hanafis do not require intention for wudu or washing. ¹⁰¹¹ Error in the intention for the major washing and dry ablution: intending the washing for sexual impurity when it came from a wet dream is not harmful for the Shafiis and Hanafis; a menstruating woman intending only the major impurity raises a Maliki dispute. ¹¹¹² The entry continues in the following pages. On dry ablution: the Malikis and Ibn Maslama permit it, the Shafiis accept a mistaken intention for the minor state when one is in the major, and the Hanbalis require the purpose to be specified. ¹³ One who had water in his baggage, forgot it, searched, found none, dry-ablutes and prays: valid for the Malikis, one Shafii view and the Hanbalis; the other Shafii view requires repetition for his neglect of the baggage. One who knew of the water but thought it was used up must repeat, by the Hanafis, Malikis, the sounder Shafii view and the Hanbalis. ¹³¹⁴ In prayer intention: where the thing need not be specified, error does no harm, as with the place, the time and the number of units; where it must be specified, error harms, as with a noon prayer intended as an afternoon one. ¹⁴ On following an imam: error about his identity usually does no harm; intending to pray over one person and finding another invalidates the funeral prayer by most schools, and the Hanbalis differ on the sex of the dead. ¹⁴¹⁵ On ada' and qada' and the wrong day: the Malikis generally validate; the Hanafis and Shafiis invalidate except in certain cases; the Hanbalis validate qada' with a mistaken ada' intention when the error shows against belief. ¹⁵¹⁶ On prayer before the time: invalid by agreement, whether by design or error. The Shafiis require certain knowledge or a valid estimate; the Hanbalis accept a strong estimate, and repeat if the prayer proves early. ¹⁶¹⁷ On error in the qibla: the Hanafis accept ijtihad without repetition; the Malikis repeat within the time if clear signs were present and one faced the wrong way; the Shafiis have two views once error is certain; the Hanbalis require no repetition for the ijtihad, but the sighted at home and the blind without a guide repeat. ¹⁷ On error in recitation: the Hanafis distinguish errors of inflection, which do not invalidate unless they change the meaning badly, from errors of letters and words, and treat near-synonyms as harmless. ¹⁷¹⁸ On error in recitation as it affects the follower: the Malikis examine prayer behind a faulty reciter, some voiding it outright or by detail, and validating it where the reciter cannot learn; the Shafiis validate following one whose fault does not change the meaning, and void it where the opening chapter's sense is changed and he cannot correct it; the Hanbalis treat one who cannot recite the opening chapter, or whose faults change its meaning, as unfit to lead. ¹⁹²⁰ Speech in prayer: the Hanafis void the prayer by speech done in forgetfulness, intent or error; others separate slight speech, which does not void, from much speech, which does. ²⁰ The imam's doubt: if two whom he trusts tell him of an error, he must go by them, by the three Imams; al-Shafii holds that if he judges their error likely he need not follow them; if he is certain of his own correctness, the Hanafis, Malikis, the sounder Shafii view and most Hanbalis do not follow the followers. ²¹ Error in the fear prayer: if the troops saw a dark shape and took it for an enemy, prayed the prayer of extreme fear, and it proved otherwise, the Hanafis, Hanbalis and one Shafii view require repetition; the Malikis do not. ²¹²² Zakat: if the fruit proves more than the estimate, the Malikis take zakat on the excess; if the owner claims the estimate was too high, the Hanbalis accept his word if the claim is plausible; the Shafiis distinguish by the size of the error. ²²²³ Error in the recipient of zakat: if it is given to one thought eligible who proves not, the Hanafis and one Shafii view hold it valid; Abu Yusuf, the Hanbalis and the sounder Shafii view, when the giver is the ruler, let the sum be recovered; the Hanbalis hold it invalid if given to an unbeliever or to one not eligible. ²³²⁴ Fasting: whoever gives a general intention for Ramadan, or errs in its description, has a valid fast by the Hanafis and one view of others, since the time is fixed. ²⁴ One who breaks the fast by forgetfulness owes no expiation. Water entering by mistake while rinsing voids the fast and requires only a make-up by the Hanafis, Malikis and one Shafii view; the Hanbalis and another Shafii view hold it does not void. ²⁵ Error about the time: one who ate on the belief that dawn had not broken, or broke the fast on the belief that the sun had set, owes a make-up but no expiation by most jurists; the Hanbalis require both make-up and expiation for intercourse, even by mistake. ²⁵²⁶ Hajj: if the pilgrims all erred and stood on the tenth, the Hanafis, Shafiis and Hanbalis hold it valid; the Malikis distinguish by how many erred; standing on the eighth in the belief it was the ninth is invalid for the Hanafis, Malikis and the sounder Shafii view, valid for the Hanbalis. ²⁶²⁷ Erring in the place of standing and standing outside Arafat requires a make-up. ²⁸ Killing game in the sacred precinct, or game by one in the state of ihram, is forbidden and carries a compensation whether done by intent or error, by agreement; the Hanafis and Malikis treat errors and intent alike for the prohibitions of ihram, while the Shafiis and Hanbalis distinguish destruction from enjoyment. ²⁸ On error in a sacrifice: if two men each slaughter the other's victim by mistake, the Hanafis and Hanbalis count it valid and owe nothing, by istihsan (the analogical rule would require a debt); the Malikis hold it invalid, each owing the other the value; the Shafiis require paying the difference in value, and each victim counts if it was owed by a vow. ²⁹ Sale by error: the Hanafis hold a sale spoken by slip to be concluded but void for lack of consent; the Malikis, Shafiis and Hanbalis hold it not concluded, since the sale needs knowledge and intent. ²⁹³⁰ Error in the subject of sale: on a mistake of kind or a gross difference, the Hanafis except al-Karkhi hold the contract not concluded, al-Karkhi holds it void; the Malikis disregard an error the other party did not know; if one names the thing wrongly, the buyer is not bound and neither is the seller by agreement; the Shafiis and Hanbalis void a sale of an unknown thing. ³⁰³¹ Hire: the appraiser who errs owes nothing by the Hanafis, Shafiis and Hanbalis (the Hanbalis require skill and trust); the Shafiis make a scale-man liable for weighing errors; the paid worker who loses goods through transgression or gross neglect is liable. ³¹³² Scribe: the Hanafis divide the error by the leaves affected, and the Shafiis give a fee for correct work, make the scribe pay for paper if the error is gross, and require him to correct. ³² Physician, circumciser and cupper: no liability for what they do with leave, provided they are skilled and do not exceed the proper place; exceeding it makes them liable whether by intent or error. ³²³³ Error in describing lost property: the Hanafis require every sign to match; the Malikis distinguish errors in the bag, string and coins; Ibn Rushd takes error to mean conceiving a thing differently from what it is. ³³ Error in shuf'a: if the buyer said he paid a hundred, the pre-emptor waived his right, and the price proved fifty, the Shafiis and Hanbalis keep his right; the Hanafis keep it if the price proved lower than stated, since his consent rested on the higher figure; the Malikis keep it where the price proved lower, the claimant swearing that he waived because of the lie about the price. ³³³⁴ On error in shuf'a: if the pre-emptor was told that a certain man had bought his partner's share and waived his right out of good opinion of the buyer, and it proved he had bought with another, the majority keep his right, since his consent was to that partner alone. ³⁴³⁵ Marriage: the Hanafis hold that a text garbled by mispronunciation does not conclude the contract, while a common usage meaning the marriage is valid by the Hanafis, Shafiis and a Hanbali view; error in the bride's name prevents the contract unless she is present and indicated, where the Shafiis and Hanbalis distinguish naming from pointing. ³⁵³⁶ Error in the bride: whoever has intercourse with a woman brought to him by mistake owes the proper dower and no hadd; the lineage stands. The Shafiis and Hanbalis treat a father and son who marry two women and consummate by mistake: both contracts are dissolved and each owes the dower of the one he consummated; the Hanbalis remit the dower to the husband, since she shared in the dissolution. ³⁶³⁷ Divorce by slip: the Shafiis and Hanbalis hold that a divorce said by slip without intent does not take effect; the Hanafis hold it does, since the lapse of mind is hard to test; the Malikis require intent to speak the formula, not its meaning, and a slip is accepted in the judge's ruling if proven. ³⁷ Injuries by error: the price of unintended homicide is owed by the killer's kin with expiation by the killer, and loss of inheritance by most jurists; for lesser injuries a full sum or a share of the full sum by the wound. ³⁷³⁸ Self-injury by error: the Hanafis, Malikis and Shafiis owe nothing; the Hanbalis (preferred view) owe the sum to the heirs from the kin if it exceeds a third; expiation is owed by the Shafiis and Hanbalis but not the Hanafis and Malikis. ³⁸ Collision by error: the jurists differ on whether each must make good the other's loss or pay half the value. ³⁸ Holing a boat by error: the Shafiis treat a deliberate fatal hole as retaliation or blood-money and a hole for repair as quasi-intentional; a hole elsewhere is pure error; the Hanafis distinguish the boatman's liability by whether the damage was by his act. ³⁹ Error in oaths: the Hanafis require expiation on breach of an oath spoken by slip; Ibn al-Humam disputes that the oath of one in error is binding; the Malikis distinguish a slip of the tongue (oath is binding) from a switch of word while meaning another (the speaker is believed in conscience); the Shafiis hold an oath spoken without intent is not binding, except the oath of divorce, freeing or vow; the Hanbalis hold no sin and no expiation for an oath spoken without intent, except divorce and manumission on a past fact believed true. ³⁹⁴⁰ On oath and breach by error: the Hanafis require expiation on breach even under compulsion or forgetfulness; the Malikis hold breach by error counts, as when one swears not to enter a house and enters it thinking it is another; the Shafiis have two views, the preferred one that there is no breach, citing the report that error and forgetfulness are lifted; the Hanbalis require no expiation under compulsion or forgetfulness, but divorce and manumission take effect if the sworn act is done in forgetfulness. ⁴¹⁴² Error in division: the Shafiis and Hanbalis accept a claim of error with proof; for a compulsory division the claim needs proof, and for a consensual one the division is annulled only on proof; the Hanafis have the partners swear if there is no proof; the Malikis distinguish wrong made by intent from error, and annul only where the error is gross and known to the experts. ⁴²⁴³ Error in an admission: the sounder Shafii view accepts an admission retracted as an error, and the property stays with the admitter. ⁴³ Error in testimony: the Hanafis accept a just witness who says after the judgment that he erred in part; the Malikis, Shafiis and Hanbalis distinguish before and after the ruling and blood from property; if witnesses to retaliation or a hadd retract after the ruling and say they erred, the penalty is suspended and the blood-money falls on their property; most jurists do not discipline witnesses who retract by error. ^43444445 Error in judgment: the ruling is set aside when the error in reasoning or in the cause shows; a ruler who cuts the left hand instead of the right is not liable by Abu Hanifa, but liable by Zufar; the Malikis allow a wrong cut between equals; the Shafiis put the sum on the kin or the public treasury; the Hanbalis make good the excess over the hadd. ^45464647 Error in retaliation: the Hanafis hold that one who exceeds an intended cut and kills owes the blood-money by Abu Hanifa; the Malikis retaliate for the excess intended; the Shafiis require retaliation for an intended excess and a fine for an error; the Hanbalis fine for the error. ⁴⁷ Error in a fatwa: the Hanafis differ on whether the mufti is liable; the Malikis hold a follower liable if he acts on the fatwa, a mufti who is only a teacher not; the Shafiis (and Abu Ishaq) make the mufti liable if he is qualified; the Hanbalis make both judge and mufti liable where the error is against a clear text. ⁴⁸