Abstract:

The non-compensation of benefits is a basic rule according to the Ḥanafī school (madhhab). However, the late Ḥanafī scholars (mutaʾakhkhirūn) made some exceptions to this established rule (ẓāhir al-riwāya) in the madhhab. The exceptions to this rule are the benefits (use-values) of endowment property, orphans’ property and property set up for profitable use (mu‘add li-l-istighlāl). The late Ḥanafīs accepted the view that benefits could only be compensated in these three places by slightly stretching the relevant rule. Fatwās (legal opinions) on this subject were initially discussed in wāqi’āt literature. Later they gained a certain authority by being repeated in many works of the same genre. Finally, this view which has been accepted by the Ḥanafī Sheikhs (mesāikh), has become a part of the doctrine by taking its place in the later standard texts and legal commentaries (shurūh) of the school. In this study, the question how the rule of ẓāhir al-riwāya in the Ḥanafī school about the compensation of benefits (damān al-manāfi‘) was revised by the late Ḥanafīs will be discussed. Additionally, the question “when the exceptions mentioned were arised” will be searched. The incorrectness of some views that have been claimed recently on the subject will be examined by the help of the examples in the Ḥanafī legal literature.

Keywords: