ADMINISTRATIVE TRADITION AND CIVIL JURISDICTION OF THE CORDOBÁN SÀHIB AL-AHKÀM (II)

Using court cases from Ibn Sahl's judicial decisions collection al-Ahkàm al-Kubrci as well as data from biographical and historical sources, the present article examines both history and jurisdiction of the «police and market inspector» {sahib al-surta wa-l~süq) in


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AQ. XXI, 2000 With this last case, we come to the cases of recovering damages, not all of which were presented to the market inspector.'^' Hubur had bought a house {dàr) in the old city of Cordoba in the quarter Masgid ' Abadil for 280 Carmonian gold mitqàl, of which the seller Fátima had already received 80 mitqàl. Although Fâtima had indicated some defects of the house prior to the sale, such as «old walls» and «unstable fundaments», as a reason for a reduced price, Hubur later claimed for a substantial price reduction on the grounds that the outer walls of the building were about to collapse. Asked in court, she asserted that she had seen the cracks in the walls and freed the seller Fâtima from recompense. This kind of «dismissal» (ta'affa) was the only way to sell a defective building without having to fear later claims by the buyer. Fâtima acknowledged the contract of sale, but objected to Hubùr's claim. As a consequence, Hubur was obhged to have it confirmed. And two witnesses attested to the nearly collapsing walls full of cracks, which had already existed prior to the sale but could be seen only from outside and therefore must have escaped the buyer's attention. Such damage reduces the price substantially. Their on-site testimony of the estate (hiyàza) was later certified in the market inspector's court. Fâtima's legal agent, however, objected and, within those periods set to him subsequently by the judge as part of legal procedure, presented a contradicting testimonial document. This testimony, accepted by the market inspector as evidence in court, attested that the damages claimed by Hubur did not exist: the wall was still balanced and not about to collapse and its cracks were not obvious although, the witnesses admitted, you could see them on a closer look.^^^ In this situation of two contradicting testimonies, Ibn 'Attâb advised the judge to visit the place himself in the presence of building experts of integrity, who should inspect the building inside and outside. This was done, and the experts found not only cracks, a shabby appearance and an east wall endangered by collapse, but also that the walls had become pervaded by salt, which however was only recognizable to experts. These defects allowed for a substantial decrease in the price, since the decay of the wall was visible only from the outside, and all these defects were older than the date of the sale. When this testimony had been certified, the seller's agent tried in vain to produce other evidence within the deadline of three days. His inability to substantiate the counter-clain was formally declared (ta'giz),^^^ and the jurists gave their opinion on how to deal with these contradicting testimonies. Ibn 'Attâb held that a judicial ruling (qadà') should be AQ. XXI, 2000 THE CORDOBÁN SAHIB AL-AHKÀM 309 based on the testimony of the witnesses with the most integrity (a'dal), but favored an amicable settlement. Basing himself on the Mudawwana, according to which evidence of a claimant overruled negative evidence of the defendant, Ibn al-Qattan opted for a ruling in favor of the claimant even without further evidence. Due to the known integrity of the experts, the house even had to be returned to the seller. Of Ibn ' Abd al-Samad's opinion we know that he objected to a renewal of the jurisdiction, causing only further difficulties. In considering this opinion, Ibn Harîs passed the ruling himself and did not turn the case to the qàdi al-gama 'a. His ruling for a return of the house to the seller was implemented and Fátima had to pay back the sum she had already received within two months. The later claim for accelerated payment was rejected by Ibn 'Attàb on the grounds that this was the ruled and registered time limit. ^^"^ Cognizant of an assertion reproduced by Ibn Sahl that a mhib aUsûq was not allowed to rule on defects in houses and similar problems, unless he was particularly authorized to do so (taqdim)}'^^ we may either question the relevance of this statement for describing the historical situation in Cordoba or conclude that at that time the market inspector was authorized in a general way to decide such cases, and in fact did so to a great extent.
In another case, refunding the price proved to be difficult, because the buyer who had to return the money was absent and his own claim against a third person, transferred as security to the seller, was not suitable to settle the debt immediately. The claimant Maryam returned a house she had bought from Khalaf, the saddler {al-Sarmg), for 260 Carmonian gold mitqàl, based on a ruling on grave defects. She substantiated her claim for the purchase price of 260 Carmonian gold mitqàl with a document from Ramadan 458 (August 1066), which witnesses certified before the market inspector Ibn Harîs. Upon leaving town, Khalaf had handed her a document asserting his own claim to deferred payment against Ahmad from a similar return of sale over 220 Carmonian gold mitqàl: «Ahmad and Khalaf had witnesses testify that Khalaf had bought from Ahmad a piece of real estate with such-and-such borders for a specified price. When various defects became obvious, they were certified in court and Ahmad had to return the price and Khalaf the estate. The estate had been returned and was taken over by Ahmad, who had instigated Khalaf to postpone payment».^^^ 310 C. MüLLER AQ. XXI, 2000 Maryam then went before the market inspector with her claim for payment of the credited sum to herself. Summoned in court, Ahmad acknowledged the document and his debt. Concerning Khalaf, one or maybe two witnesses ^^•^ attested to his residence in the region of Carmona, two others that his whereabouts were not known to them. The jurists disputed whether the claimant had to certify the document between Ahmad and Khalaf^ ^^ and whether the testimonies on Khalaf's absence would justify a completion of proceedings without his exercising his legal hearings {Vdàr)P^ They agreed, however, that the document presented and Ahmad's acknowledgement were not legally sufficient for a ruling against the absentee. The claimant had to swear to her claim and could then collect the 220 gold mitqal from Ahmad. Without any dissent on this point, Ibn 'Attáb held that the defendant's right to a later legal hearing had to be fixed (taqayyada) in an addendum to the ruling. ^^^ Whatever solution the market inspector did favor in the end, an uncomplicated offsetting of obligations between those three persons, as those concerned may originally have intended, was prevented by the jurists' objections -not to speak of the additional costs for longer proceedings.
With this, we turn from the cases on contractual obligations to disputes over various contradictory rights and claims. The first example of this kind was a border dispute over a dilapidated building; the case had already gone through court proceedings before the qàdi Abü'l-Mutarrif Ibn Siwàr, but was transferred to the market inspector, here sahib al-süq Muhammad Ibn Makkï, after the qadi's sudden death on 12th Dû'l-Qa'da 464 (July 31, 1072) after having been in office only five months.^^^ The Muslim Hassan b. 'Abd Allah filed a claim against the Jew Isháq for property rights to a building in the Sawáb Mosque Quarter of the AQ. XXI, 2000 THE CORDOBÁN SAHIB AL-AHKÀM 311 old city of Cordoba. In the market inspector's court, Hassan alleged that a small house on his estate had fallen to ruin and damaged the separating wall to the neighboring real property of the synagogue. When he wanted to rebuild the wall, Ishaq, the legal agent of the synagogue foundation, objected and claimed property rights to the ruin on behalf of the synagogue. In order to substantiate his claim before the market inspector, Hassan presented an istir'a' document from Ragab 464/April 1072, whose witnesses attested that the mentioned ruin had been certified in the qadi's court to be part of Hassan's piece of real estate. At the bottom of the same document, it was attested that the hiyàza, the «on-site testimony to borders of a piece of real estate», had been carried out by order of the judge.'^^ On the back, it was written that the qadi had heard Ishaq on the witnesses of the istir'à' document as well as on those of the estate's borders. Ishaq, who had asserted he could refute this testimonial evidence, had been set several dates. The qàdi himself ordered that the whole document be certified by witnesses (ishàdiihu 'ala nqfsihi bi-dàlika).
During court proceedings, the market inspector considered the legal claims attested to in the document, but could not accept it as evidence, since he had not been present at the first proceedings with Ibn Siwár. He obliged the claimant to have proceedings and orders of the deceased judge certified in his own court. Then Ibn Makkî summoned the defendant to be heard again, but the latter could not refute the certification's witnesses. The market inspector had rejected one of the two witnesses attesting to the final deadline (talawwum) in the qàdi proceedings. This jeopardized legal evidence on this particular point and made its repetition necessary. Ishaq was granted a second talawwum, and then the judge conferred with the jurists for a ruling. Every legally relevant step of the first proceedings had to be certified by two witnesses, whom the new judge had to accept. The different steps must have been certified by various witnessesotherwise the rejection of one witness would have required the repetition of other parts of the proceedings as well.
The jurist Ibn Farag opted for a ruling in favor of the claimant because the defendant had not been able to defy Hassan's claim within the time limits set. Ibn Sahl, on the other hand, held that the document in its present form, which stated that «the house mentioned belonged to Hassan's piece of real estate»,^^^ did not attest to the property rights (milk) of the claimant and was not sufficient for a ruling. Other jurisconsults shared his view after some discussion, and the market 312 C. MüLLER AQ. XXI, 2000 inspector called on the claimant to attest to his milk of the house. During a second consultation in this case, Ibn Farag insisted on his opinion and Ibn Sahl backed his argumentation with references to the Mudawwana of Sahnün, but had no copy of his answer when writing down the case nearly 10 years later. We are informed neither whether the claimant had presented a second, substantially different testimony, as required in the market inspector's first ruling, nor on the judge's decision. In any case, this example highlights some difficulties involved in confirming private milk in court. ^^"^ The more pragmatic position of Ibn Farag and the qàdi Ibn Siwar was opposed to the very strict one of Ibn Sahl, which set high hurdles for such a property dispute.
Testimony to the borders of real property was the problem in another dispute over landed property presented to the market inspector Ibn Hans. Ibn 'Abdüs claimed possession of a piece of real estate in Cordoba, which his father had endowed along with other property for the benefit of his descendants ( 'aqab), but sold during his own lifetime to the Banü Ibn al-Khayta, who were still living there. ^^^ The endowment deed was legally accepted, based on witness testimony that the handwriting was indeed the notary's (sahàda 'ala al-khatt)}^^ As the next procedural step, witnesses had to attest to the borders of the endowed real estate on-site. Although several people (qawm) attested to the various borders, in assessing these testimonies in court, it was found that only one witness had testified to all four borders of the premises. As things were, the market inspector refused to vahdate the ruling which would have returned the piece of real estate to the endowment and finally abandoned the whole case without a decision. Naturally, the claimant Ibn 'Abdiis was dissatisfied and later filed a complaint with the sahib al-mamlim Ibn Adham. Ibn Adham, in exercising the competences of siyasa justice, interdicted any use of the premises by its inhabitants and had the ground cleared and sealed off ( 'aqla). The final ruhng, however, is not known to us.^^^ Yet the first part of this dispute demonstrates quite clearly that the market inspector was bound to the rules of the jurists' law in his jurisdiction on real property.
'"^ On the problem of Muslim property rights in al-Andalus going back to the time of the conquest, see Chalmeta, P., «Concesiones territoriales en al-Andalus (hasta la llegada de los almorávides)», Cuadernos de Historia, 6 (1975),

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In a dispute over an irrigation well and a cistern outside the city walls, various testimonies presented in a sequence of claims and counter-claims made a legally consistent conclusion very difficult. In the beginning, the claimant Ahmad^^^ b. Muhammad b. 'Ataba, son of the tanner, presented to the market inspector, here sahib al-ahkàm Ibn Hans, a contract dividing a garden, in which his father and the defendant's father had shared irrigation well and cistern equally. This was denied by the defendant 'Umar b. Muhammad b. 'Umar, who claimed that both, well and cistern, were his property which he used to irrigate his garden. To substantiate his claim, Ahmad had the contract of division certified in court and the site of well and cistern was attested to in an «on-site testimony» (hiyàza). While 'Umar was given several time limits to prove his allegation, Ahmad tried to put 'Umar under pressure with the argument that there must be two copies of the division contract. He demanded that 'Umar take an oath that he did not have a copy of this contract. Ibn 'Attâb held this oath to be necessary, Ibn al-Qattan and Ibn Malik were against it, and apparently the oath was not made.^^^ Three persons had testified to the contract of division and on the piece of real estate concerned. Only one of them was finally accepted in court as a witness: the defendant proved that another was his personal enemy, which excluded testimony according to the jurists' law, and the third one had been generally discredited as a witness. 'Umar then in turn presented an istir'à' document to be certified in court. Its witnesses attested that both, well and cistern, had belonged to his father's property and cultivated land {Vtimàr), and that he had used them for irrigation and had paid for repairs on them during the last ten years of his life. Ten years earlier, well and cistern had been transferred to his son in the presence of the claimant Ahmad, who had then attested to it. According to these witnesses' knowledge, nothing had changed until their testimony in the year 458/1066, when they had heard of Ahmad's claim. Ahmad countered with an istir'à' document which attested that well and cistern had been the joint property of both fathers, but had not been used during the last fifteen years. In addition, Ahmad alleged that he had lent well and cistern to 'Umar without financial benefits. None of these latter /^i/r'â' documents were refuted by the other party, and the market inspector consulted the jurists to find a legal solution. Ibn 'Attâb and Ibn al-Qattan refused to consider the contract of division, since one witness alone did not establish legal evidence. ^^^ They held that the document presented 314 C. MüLLER Ag. XXI, 2000 by the claimant Ahmad on the non-use of well and cistern during the last 15 years was not sufficient, and Ibn al-Qattàn declared its testimony to be void.'^^ All contracts and testimonies in this case were considered to be insufficient and bewildering, and, as a result, inapplicable in favor of any party. Ibn 'Attib demanded that both parties should take the oath to their claim: if both swore, both would own the well, if one of them refused, the other would get it. Ibn al-Qattàn, on the other hand, gave more weight to the property rights of 'Umar, based on the certification of the latter's and his father's use and repair of the well and on Ahmad's assertion that he loaned the well to him. This should result in a ruling based on the defendant's oath (al-qada' bi-tark al-amrY^^ unless Ahmad could supply witnesses to testify that he had loaned the use to 'Umar. Ibn Sahl conceded some useful aspects in Ibn 'Attàb's answer, but considered the latter opinion to be clearer. He did not give the decision of the market inspector. When seeking legal advice from the jurists, the market inspector was not restricted to a world of religious and law-abiding people, but dealt with realities of life. In a farmer's claim for joint ownership (sarika) of landed property and cattle, the defendant had denied the claim and alleged that the claimant was only farming the land without any property rights.^^^ Property rights had a decisive impact on how revenue was distributed.'^"^ Without further legal evidence, the unnamed sahib al-suq of Cordoba had granted to the defendant the right to swear to his counter-claim that the farmer was no partner. After that oath, they set up a contract, which ended with the testimony that both sides would refrain from future action, claims and oaths for old and new disputes. Later however, the original claimant did in fact present witnesses testifiying that the original defendant had acknowledged to them several times joint ownership of cow and land (baqar wa-zar'). Upon certification of this testimony, the judge (here hakam) consulted the jurists. In this matter, disputed among early Màlikï jurists, Ibn 'Attâb held that the testimony of witnesses overruled the oath of the defendant. The claimant, however, should be obliged to swear that he had not Comente, Madrid 1983), esp. 330, Ibn 'Attab declared the rejection of a witness due to personal enmity licit also in the case testified to by a witness not a mubarriz, Ibn  '"^ In sharecropping, the share was one sixth for the farmer up to one third if he also owned the oxen (azwag); compare the legal standard forms for muzàra'a in Ibn al-'Attàr, Watâ'iq, 66-69. The market inspector's role as judge went beyond the economic sphere and touched matters of family relations like maintenance, divorce or inheritance disputes. In a dispute between a newly wed bride and her father over the domestic utensils and clothing her father had provided for her wedding, the father claimed they were a loan, the daughter that they were a gift. 'Abd Allah al-Qabbala sued his daughter, whom he had given in marriage to Ahmad, for the return of the bridal provisions. Bride and husband refused to comply, and the utensils were deposited with some jurists. Ahmad presented an istir'a' document dated 10 wSafar 458 (January 10, 1066). Its witnesses testified that, 20 days earlier, they had heard 'Abd Allah acknowledge that the «clothing» (tiyàb) and domestic utensils enumerated in the document were his daughter's belongings. The market inspector accepted these witnesses and had their testimony certified on 12 Safar. »96 Before a ruling in favor of the bride had been made, however, the merchant Khalaf Ibn Fatüh claimed ownership of a carpet and a lamp from the dowry, which he allegedly had lent to the father for his daughter's wedding procession. Three days after the first testimony in court, several witnesses testified before the market inspector that the merchant had offered this carpet for sale in their presence without selling it at the end of Dü'l-Qa'da 457. At that time, he had owned the carpet, and to the best of their knowledge this had not changed until their testimony. On that occasion they also testified that Ibn Fatüh had bought the lamp in their presence at the end of Dù'l-Qa'da, but they did not know whether he still owned it. One witness testified that Ibn Fatüh had pawned the lamp with him and redeemed it before the Feast of Immolation (November 11,1065); he did not know whether he still owned it. The market inspector accepted these witnesses and had their testimony certified. The merchant's claim thus contradicted the father's acknowledgement of his daughter's proprietorship, testified to by the first witnesses. When summoned to court a second time, the father acknowledged that he had borrowed the carpet and the lamp from the '^ Ahkàm, 716f., with only this response. Since the market inspector is not named, the case may have occurred before Ibn Sahl Asked about his first acknowledgement in his daughter's favor, he denied the soundness of the testimony, but had no legal reasons for a rejection of these witnesses. The market inspector then consulted the jurists on several points, among them whether the merchant had to take the oath that the lamp and the carpet belonged to him.^^'' The daughter's right to the dowry was in jeopardy because her father had acknowledged that he did not own lamp and carpet when he had given them to her. The jurists agreed on the merchant's ownership of the carpet, but held different opinions concerning the lamp.^^^ They also agreed that 'Abd Allah's first acknowledgement in favor of his daughter, testified to by witnesses, was legally valid, whereas his second acknowledgement favoring the merchant did not add any evidence. ^^^ On the question what to do next with the utensils, they differed: according to Ibn 'Attáb, the father had entered liability, dimma, in favor of his daughter, which did not give her the right to receive the utensils right away, but which was to be transformed into a sale with deferred delivery (salam) amounting to the usual father's nuptual gift (naqd) and to an additional sum which had to be negotiated with her husband. Then the utensils were to be deposited with the father or a third person. Ibn 'Abd al-Samad held that all the utensils with a combined value up to that of the father's nuptual gift stayed with the daughter, and the rest of it had to be deposited with a third person, but not with her father, who had discredited himself. Ibn Malik supported a qadà ' ruling against the father based on his acknowledgement in his daughter's favor. Possibly this meant that the utensils stayed with her.
Lamp and carpet, however, were of different legal natures: according to Ibn 'Attâb, evidence was sufficient to return them to the merchant after he had taken the oath that the lamp and the carpet were transferred only to the father and no one else. Other jurists believed the oath applied only for the carpet. Ibn Malik, who held the carpet to belong to the «clothing» which had to be ruled as belonging to the bride, thought that, after the oath, the merchant could only take care of the carpet, but not sell it. Without further evidence in favor of the merchant, so the opinion of Ibn 'Abd al-Samad, the lamp stayed in the i97AM¿m, 330f. '^ Only Ibn 'Attáb was in favor of it; Ibn al-Qattàn and Ibn 'Abd al-Samad thought that testimony was not sufficient to back ownership, and Ibn Malik even denied his right of possession, Ahkàm, 332-5.
'^^ According to Ibn 'Abd al-Samad, the contradicting testimony made the acknowledgement meaningless, and Ibn Malik rejected it because, at the beginning, he had claimed these utensils for himself, ibid. A pregnant woman claimed maintenance from her recently divorced husband. He denied paternity, since the waiting period had allegedly already elapsed, and refused to pay. Fátima bint al-Zubayr claimed maintenance for the period beginning with their divorce by mutual consent (mubàra 'a) and, at the beginning of Ragab 459 (May li, 1067), in court two women attested to her pregnancy, with the unborn already moving in her belly. The husband, 'Abd al-Rahman b. Muhammad, asserted he had acquitted himself from Fátima in a second act of repudiation (talqa) on 17th Rabí' 1459/February 5, 1067, a fact corroborated by Fátima. He denied in court that she could be pregnant by him, since he had already held himself separate from her for seven months before the repudiation. However, he was not sure whether she had menstruated since then. His statement was certified. In a second bill, written in his hand, he corrected himself and asserted that he repudiated his wife when she was menstruating. At that time, he had akeady abstained from having sexual intercourse with her to fulfill the waiting period {istibra') and continued to do so later on. Witnesses testified in court that they had been married for five years and had Hved together under one roof until their divorce.
Most jurists regarded this refusal of maintenance to be a serious charge of adultery which was to be considered a case of hadd punishment. Of all four jurisconsults, only Ibn 'Abd al-Samad held that the judge could choose between the husband's two assertions, and that in the second case Fátima had no rights against her former husband. Two jurists rejected the husband's second assertions: Ibn ' Attáb, because it was the result of undue legal instruction (talqm) which did not comply with the course of events; and Ibn al-Qattan, since it was written in the husband's own hand and not by a third person as witness.^^^ Considering the first statement of the husband in court, Ibn 'Attáb held this to amount to slander (qadf), the accusation of unchastity without testimonial evidence that he could not have been the father of the child. In his opinion, the 80-lashes punishment for ^a^could only be prevented by the procedure of Wat, in which the husband afíirms under oath that the child bom ^^  to her is not his, and she affirms under oath the contrary, both appealing to divine punishment if they have lied. Such a couple is then divorced forever.^^^ Ibn al-Qattan, by contrast, favored the opinion by Malik and his companions that the husband could not affirm her unchastity by // 'an, but was to be tried as qâdif and had to accept paternity. Ibn 'Attâb differentiated that in this case a husband only had to accept paternity after testimonial evidence that he had not denied paternity when confronted with her pregnancy for the first time. If he then continued to deny paternity, he would be accused of qadf; if she did not succeed in presenting witness evidence, she would be subject to the oath of unchastity {IVan).
According to the fourth jurist, Ibn Malik, the denial of paternity was the most complete form of unproven unchastity, no matter what claim for ending the waiting period (¿stibrà') accompanied it, and therefore had to be cleared by Wan. Unfortunately, we do not know the solution chosen, but cases of li 'an must have been very rare in al-Andalus.^^^ In such a case, however, the former husband would only have to provide maintenance and housing during her pregnancy.^^"* Less dramatic in consequences was the maintenance dispute over Fátima, an unmarried older woman, who had lived in the house of her brother 'Abd al-Malik after her father's death in the year 447/1055. When 'Abd al-Mahk b. Khayra died at the end of Sa'ban 459 (mid-July 1067), his widow and children claimed maintenance payments from her second brother 'Abd al-Rahman, who had also been guardian of his sister since their father's death 12 years earlier. 'Abd al-Rahmán lived in the old city in the quarter of the Balansî Mosque in two houses which belonged -one partially, the other completely-to his sister Fátima. The claimants, represented by the oldest son as legal agent (wakU), claimed that 'Abd al-Rahmán should make up for the maintenance payments made by his brother to their sister. 'Abd al-Rahmán did not deny that his brother made the payments but claimed that they had been done from a sum of 100 gold mitqàl, which once had been provided for this purpose by their father Khayra.^^^ The jurists agreed that 'Abd al-Rahman had to pay the usual rent for his sister's houses and that the heirs were to be compensated for the maintenance paid for his sister by the deceased also on behalf of his brother. First, however, the heirs had to swear that they had not known of Khayra's gift, and that, to the best of their knowledge, Fátima did not have any more obligations to the deceased. The underlying principle for this choice to have the heirs take the oath rather than the brother was that, in Mâlikï law, a positive claim had more weight than a negative denial.^^^ The market inspector then had a trustworthy person calculate the adequate rent for Fatima's houses during the past twelve years. The sum was fixed at 144 1/2 mitqàl and paid by 'Abd al-Rahman to his brother's heirs. This sum, however, was not sufficient to cover the costs of maintenance set by the law for an adult woman under guardianship, and her houses were sold to cover maintenance. The maintenance claim was not based on the actual costs but on a taxed basket of goods she was entitled to in her social position. This amounted to 2 quarters of wheat flour, 2 eighths of oil, half a load of firewood of medium size, and 30 dirham each month, the latter to be reduced to 1 1/2 quarter of wheat flour and 1 1/2 eighth of oil in the case of rising prices. For clothing, she was entitled to two shirts, two pairs of trousers, a pair of shoes, a cotton veil (miqna'), and, for winter a lined coat each year and additionally a fur every three years. Every three years, she was entitled to a new blanket (milhafa) and, for most of the period under consideration, a mumqqa'a, SL cotton cover {kisa' farasiyya) and a woolen mattress ifiràs)?^'^ When, in his position as her remaining guardian, 'Abd al-Rahman tried to force her to live under his roof, she refused, preferring to continue living with her other brother's family. The jurists granted her the right to choose her domicile. As a result of this case, Fâtima had all her property transferred to her relatives she lived with, whereas her living brother got nothing.
The market inspector dealt with the assertion of contractual rights not only in the field of commerce, but also in family law. It was no exception that a woman filing for divorce in accordance with her wedding contract brought her claim to the market inspector:^^^ in the suit of 'Àtika for divorce from her long-absent husband, juridical problems arose from differing testimonies about her husband's whereabouts as well as from a discrepancy between written testimony and oral attestation in court. 'Atika's legal agent presented to the market inspector Ibn 206 Ahkàm, 375f.
2°^ Compare for example the wife of Ibn al-Sarafí, Ahkàm, 732. Harïs an istir ' a' áocumtni testifying to the stipulations of her right of divorce and to the long absence of her husband. The witnesses of the document notarized «to know the husband Mas'üd b. Ahmad personally and by name and that he had left his wife 'Àtika bint 'All one year prior to the date of this document and stayed at a place unknown to them. Fifteen years earlier, the husband had called them as witnesses of the wedding contract. One of its stipulations was that she was not bound to stay his wife if he was absent for more than six consecutive months or three yeai's for the pilgrimage, and could then act according to her own will; and for this, her assertion would be valid in court (al-qawl qawluha). Once she had taken the oath that her husband had left her longer than stipulated, she was free to decide on a divorce. She could however grant him a final deadline (talawwum) without interrupting the period of his absence required for the divorce».^^^^ This testimony of Ibn al-As'ad and Futays b. Ahmad in an istir'à' document issued in Ramadan 457 (August 1065) was supplemented by Abu Muhammad al-Mu'aytî and 'Abd Allah b. Muhammad b. 'Abd Allah al-Umawï notarizing that «they knew of Mas'üd's absence from his wife, but not whether he had already returned to her at the time of their testimony in Sawwal 457 (September 1065)». When the witnesses repeated their written testimony orally in court, to make it valid as judicial evidence, two witnesses repeated their testimony word for word, and one of the witnesses, al-Mu'aytî, added that he knew the husband to be staying in Seville. As the next step in court, the wife's will to dissolve the maiTiage was also testified before the market inspector, who accepted these witnesses and gave her the legal hearings. She did not raise any counter-claim. In the eyes of some jurists, the difference between the /^i/r'â' document issued in Ramadan and the additions one month later gave rise to the necessity for her to swear that she had not renounced divorce, but regarded this as a last deadline for her husband. At this stage, the market inspector considered the conditions of the oath fulfilled, and allowed her, under some excuse that she could not leave the house, to take the oath not in court but at home. She swore that «her husband had not yearned for her since his absence, and that her silence within the mentioned period did not mean a renunciation of divorce but a deadline to her husband». The wording of this oath must have been prescribed by the market inspector, since one of the jurists later criticized the second pait as unnecessary, since already granted in the witnesses' testimony, and «a judge has to restrict his orders, also for the formula of the oath, to the essential, and the market inspector should take care of this in the future».

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If the market inspector had expected the jurists to vote for an instant ruling of divorce, he was mistaken. Ibn 'Attàb demanded the legal hearing of the husband, whose whereabouts were known through the testimony of al-Mu'aytï; this option was rejected by Ibn Malik and Ibn al-Qattan on the grounds that testimony of one witness did not constitute legal evidence for a fact to be considered at court.^^^ Ibn 'Attâb criticized the contradicting parts of the testimony of «unknown whereabouts» and the assertion «that he was not on pilgrimage», and held that unless this was sorted out, the document had to be considered «lacking» (muftaqar), not allowing a judicial ruling (qadà') of divorce. Ibn al-Qattan, on the other hand, held that the testimony of «unknown whereabouts» should be completed with «being far away» in order to avoid the necessity of a legal hearing before a ruling could be passed.^'^ According to this jurist, a testimony that the husband «was not on pilgrimage» needed to be accompanied by the words «according to the best knowledge [of the witnesses]» and could not otherwise be the basis of a ruling. Ibn Malik, however, criticized that written testimony and oral attestation in court were not identical. If the witnesses were still alive, they should repeat the notarized testimony in court and have it certified. This would ensure that any difference between the oral and the written form had originated from the notary of the document. He held that the judge should combine in suitable formulation the wording of court testimony and its understood sense with the intention of the istir'à' document and notarize (qayyada) this on the document.^^^ Then the judgment could be passed with the right of legal hearings to be postponed for the absent husband. Both jurists, Ibn Malik and Ibn al-Qattan, criticized that 'Àtika swore at home without any legal reason for this.^^'* If she was one of those women who did not leave the house during the day -a sign of high social status-she should swear at court during the night. The decision of the market inspector is not known to us, but it seems highly improbable that he allowed 'Àtika to be divorced without further legal proceedings.
Another woman sued for divorce on the grounds that her husband had remarried his former wife, in which case her own wedding contract stipulated instant divorce. Since the husband had married, repudiated and remarried several 2' » Ahkàm, 349, 352. 2^2 Ahkàm, 348f., criticized by Ibn Sahl as illogical, ibid., 350f. This was a frequent point of disagreement between Ibn al-Qattan and Ibn'Attàb.
( to the repudiation and to her remarriage thereafter. The husband 'All acknowledged the wedding contract and its stipulations, but argued that he had not married his former wife 'Aziza bint Ni'am al-Khalaf, but another woman from Toledo. Both assertions were notarized on the wedding contract. As proof of his assertion, 'All presented two contracts with his present second wife, 'Aziza bint Asbag b. QulsaP*^ (? Gonzal). In a first contract from 3rd Gumâdâ I 458 (April 2, 1066), they had dissolved their marriage by agreement (mubàra'a),^^^ a fact also attested by two witnesses personally known to the market inspector Ibn Han's. One month later, 'All had remarried 'Aziza, and this contract of remarriage in Gumâdâ II 458 (May 1066) contained testimony that Salwa bint Abfl-Walid had been repudiated irrevocably three times by 'AIL The claimant Maryam had already asserted in court that she was also called Salwa and her father was called Abü'1-Walíd, and 'All also recognized her as Salwa bint Abfl-Walid, but he nevertheless refused to consent to a divorce, on the grounds that he had not remarried 'Azïza bint Ni'am al-Khalaf, but 'Aziza bint Asbag, which was no reason for a divorce from Maryam. The father of his present second wife asserted in court that his daughter was not 'Aziza bint Ni'am al-Khalaf. From a legal perspective, Maryam's wedding contract did not require a divorce from 'All, but the jurisconsults considered his conduct of marrying, repudiating and remarrying several women as making him totally untrustworthy. Ibn 'Attâb compared the husband with people avoiding culpability for hadd offenses by playing tricks, a conduct rendering his assertions in court untrustworthy. The conditions for a divorce from Maryam may have been fulfilled, which made any further sexual contact illicit and amount to zina. However, since a hadd punishment should only be applied on the basis of facts Quite the opposite of a suit for divorce was the curious case of a man who had repudiated his wife three times in the presence of witnesses. But since they attested that he had done this not in his right mind, the jurisconsults argued that the repudiation was void, since the man had not been conscious of what he was doing. Since neither the husband nor the wife was interested in a divorce, the claimant must have been some unnamed third person. Ahmad b. 'Ubada asserted ^'^ Ahkàm, 422f., with Ibn Sahl's commentary ibid., 426f. ^'^ Ahkàm, 424. Ibn Sahl refrained from commenting on this, since Ibn Malik had argued according to his own choice (ikhtiyar) and not followed Màlikï teachings. before Ibn Hans that he was subject to attacks in which he lost his senses and his mind and was not able to realize the situation he was in. After some attacks, some people present told him that he had repudiated his wife Sita a total of three times. He alleged that he did not know of this repudiation and presented a document in which witnesses attested that he sometimes lost his mind and that they had heard him repudiate his wife three times during one of these attacks. Obviously there were no doubts concerning the witnesses, whose testimony was certified at court. When the market inspector heard the wife, she confirmed her husband's assertions.^^^ Some jurists held that in order to prevent a divorce, Ahmad b. 'Ubáda had to swear that «he had neither known of, nor wished or intended the repudiation (talqa), but that he had been informed of it only later». If he also swore that his loss of memory was due to an existing illness, he could continue to be married to his wife.^^° The other opinion rejected the idea of an oath for someone who was not conscious at the time of the incident. If he did not know anything about it, his people had to decide what to do, but he would not be brought to court nor had to swear an oath, as long as the witnesses at least had doubts that the accused was master of his mind at the time of the incident.^^^ Whatever opinion was held by the market inspector, the jurists all agreed that Ibn 'Ubada did not have to be divorced by law, because of the specific circumstances of this case.
As we see from another case, the simple repudiation of a woman was treated much less severely than a man who had sworn a false oath, which created such pressure that the man left town before the judge enforced the divorce from his wife.
To conclude this section on divorce, we come to a case only indirectly connected to this field of law but highlighting the social situation in Andalusian society of that time. Legally speaking, a female slave's claim that she should be allowed to be sold to another person touched the property rights of her absent proprietor. One slave of Muhammad b. Ahmad al-Sarafi ^^^ appeared with the market inspector Ibn Hans, here sahib al-ahkàm, and told him that her master had been away in the Maghreb for years now and had left her behind without any means of living and had not sent her anything so that she was starving. In order to 2'9AMâm,419f. ^^° Opinion of Ibn 'Attâb and, slightly different, Ibn al-Qattan Ahkàm, 419f. 221 Ibn Malik, AM¿im, 420. survive, she demanded that the market inspector pass a ruling (nazar) that she could be sold to someone else. He ordered her to bring the necessary testimonies that she suffered hunger and wanted to be sold to someone who maintained her. She then had certified to the judge that her master owned her, that he had departed without leaving her anything to provide for herself, that he did not send her anything, and that she had no funds of her own nor anyone she could lean on. The jurists held that if she certified what she had asserted, the judge should sell her, take the selhng price for the absentee and deposit it with him or another trustworthy person until he retums.^^^ This being done, the divorced wife of Ibn al-Sarafí, Fátima, and his legal agent (wakil) disputed over who should receive the selUng price. Interestingly enough, none of them had been obliged to provide for the starving slave.
At the time of this second case, the wife Fátima had already been divorced as stipulated in her wedding contract because of her husband's prolonged absence. After the sale of the slave, Fátima claimed debts against her divorced husband, to be repaid from the deposited sum. She alleged before the market inspector Ibn Haris that, before he left, she had paid him a hundred mitqal to buy her a servant, which in the end he had not done. For a sale with deferred delivery (salam) of two mudd of wheat, he should have paid her 18 mitqal but did not. Of the two witnesses attesting to the payment of a hundred mitqal, the market inspector accepted only one, with the consequence that her claim was not fully accepted by the jurists. Then the market inspector summoned the legal agent of the absentee, the imàm al-fañda (prayer leader) Muhammad b. Ahmad al-Bagám.^^"^ His capacity to act as a general mandate agent (wakàla mufawwada) was substantiated by an istir'à' document dated from the middle of Muharram 459/beginning of December 1066, whose witnesses had attested to the kind of agency^^^ and that they had been summoned to attest (ishàd) to this mandate by Ibn al-Sarafí and al-Bagání, to the best of their knowledge, about one year before the document was drawn up. In his capacity as legal agent, al-Bagání acknowledged the absentee's debts to his former wife, a fact noted down (taqayyada) at the end of the record of the questioning of the defendant (tawqlfip^ The agent, in turn, claimed that the selling price for the slave which had been deposited by the market inspector, here hakam, with a 223ibnSahl,AMflm, 611. ^^' Better than Ahkàm, 732 «Bàgây». His father may well be the scholar mentioned in Qâdï 'lyád, Tarñb, VII, 198. -"^ On the text, see Ahkàm, 733; compare the standai'd forais in Ibn al-'Attár, Watà'iq, 500.  trustworthy person, should be entrusted to himself, since he was entitled to this as the absentee's agent according to this written attestation to his mandate. Juridically, two different problems arose: Fitima's claim to have her debt repaid and the agent's claim to possession as a trustee. Whereas Ibn al-Qattan and Ibn 'Abd al-Samad held that the agent could take possession of the price on behalf of his client, Ibn 'Attâb would not accept the existing document, which lacked any specified authorization for this.^^^ Unless the absentee was very far away and attestations in court had been very recent, Ibn Malik did not accept testimony to the agency of al-Bagânï in its presented form, but said the case had to be resumed before Ibn Hari!s. He reminded the judge that the presented document did not contain the summoning for testimony, ishàd, but only the witnesses' memory in the form of an istir'à' document. Since the claimant al-Bagânï alleged that they had written the document from memory, they should attest to its content by memory as well. He said that if a judge informs a witness of the content of that same witness's written testimony, then the witness could not attest «I do testify before you to my [written] testimony».^^^ It was disputed whether the debt owed to Fâtima could be settled with the selling price of the slave. Ibn 'Attab and Ibn al-Qattan negated this, since her claim had been backed by only one witness, and she therefore could not claim property {mal) of an absentee. Ibn 'Abd al-Samad held that the 100 mitqal had been a deposit in trust (amàna), but not owned by the absentee and therefore should be handed to Fâtima. The situation was different with the two mudd of wheat, which she could not claim from the absentee since this was «obligation against obHgation» (dayn bi-dayn)?^^ With the greatest degree of differentiation, Ibn Malik held that, once the agency had been certified, Fâtima should have the right to swear to her claim and then receive her money, and that the rest should go to the agent as trustee. He argued that testimonial evidence and the acknowledgement of the agent supported her claim, which would grant her the right of an oath according to the Muwatta' and other texts.^^^ We do not know the judge's ruling, but it seems very unlikely that the sum remained deposited with the original trustee.
This was not the only claim presented to the Cordobán market inspector for a sum which had been deposited in favor of an absentee. Once a ruling had been -^^ Ahkam, 733; according to Ibn Sahl, Ibn 'Attab held this view because he did not consider al-Bagânî to be a trusted (ma'mün) agent, ibid., 736. 228AMam,735.
-^^ Ahkàm, 734, this answer was vehemently rejected by Ibn Sahl as ignorant, ibid., 736.   (November 19, 1062). The share of 'All, who had lived on the East coast of al-Andalus for a long time, was deposited with a trustee by orders of the qâdi al-gamà 'a. Shortly after the death of the qâdi al-gamà'a Ibn Sirâg in the middle of Sawwal 456 (end of September 1064) -and this is more than coincidence-'Abd Allah claimed the share of 'All, who had died before the cousin he was supposed to inherit from. Since sunni Islamic law does not acknowledge the concept that an already deceased heir is represented by his descendants,^^^ the claimant would have been entitled to this share as the sole cousin of the deceased. To substantiate his claim, he presented an istir'à' document from Dü'l-Qa'da 456 (which began on October 15, 1064), in which witnesses attested, on hearsay from very different sources (bi-1-samà ' al-mustafid), that 'All had died three years before that document was drawn up.^^-^ Muhammad b. Yahyâ b. Rifâ', the trustee for the deposited share, acknowledged that fact in court and did not pose any legal problems.
In answering the questions posed by the market inspector Ibn Haris, the jurists basically agreed that the death of 'All had to be certified in court and that his heirs had the right to be heard in court. This being achieved without further problems, the claimant should receive the deposited share from the trustee.^-^"^ This meant, however, that an inmiediate return of the deposit was not possible. The claimant 'Abd Allah had two children of his cousin 'All, one absent son and a daughter living in Cordoba, certified as his heirs. The absent son obviously was not summoned to court, and the daughter did not object against 'Abd Allah receiving the deposited share of her father, which he eventually did. Considering the fact that the qâdi al-gama'a Ibn Sirâg's ruüng of the case acted as if the absent cousin 'All was still alive, although his daughter lived in Cordoba and witnesses later testified that they had heard of his death, it was probably less a matter of knowing when he had died in his domicile on the east coast of al-Andalus, but rather a matter of accepting this information and those persons bearing it as witnesses. The claimant must have waited until the death of the qadi, who had denied him the share, and then collected witness testimony for his claim before the market inspector.
Whereas in the former case the presiding qâdi of the first proceedings had already died during the second proceedings under Ibn Harïs, another inheritance dispute was brought to the market inspector although the qàdi originally dealing with it was still in office. The agent of the widow of 'Abd Allah Ibn AM Zayd complained before the market inspector Ibn Harïs that the amicable setdement concerning her husband's inheritance, which had been ratified by the qâdi algamà'a Ibn Baqi (456/1064-461/1069), had been broken by her brother-in-law and his mother. The latter party held that the settlement contradicted the law and therefore was void. After the death of 'Abd Allah Ibn Abî Zayd, his widow 'À'isa, his mother Safiyya and his brother Ahmad were certified as legal heirs. For the division of property, the widow made Muhammad al-Qurasî her legal agent, and the mother delegated this task to her son Ahmad. Furniture and clothing of the deceased were sold for silver coins to the value of 300 gold dinar and two vineyards yielded 110 gold dinar, which Ahmad also gave to his mother Safiyya. The widow's agent agreed to this sale with his signature, but claimed 50 mitqal as a debt to his client, which the deceased still owed to his wife as part of her kali, the deferred dower.^^^ Ahmad then demanded that the widow take the oath that she had neither received this sum nor given it as a present to her husband. At this point, events in court must have escalated, since both parties accused the other of withholding property from the inheritance: the widow's agent denied she had withheld 50 mitqal from the sale of Malagan yam and in turn claimed that the horse was part of the inheritance and the black slave belonged to the widow. Ahmad alleged that the horse was his and the slave had been bought by the deceased, which made him part of the inheritance. The qadi al-gamci 'a had all the property of the widow certified, and both parties came to the following amicable agreement: Ahmad was to pay 70 mitqal to the agent of the widow, was to receive the slave and all allegations against both sides were to be dropped. The remaining dower should be paid with the silver coins from the sale of the inheritance, but only after real estate {asl) and movable property {mal) --'^ On kali, compare Santillana, Istituzioni, I, 220. of the deceased had been certified. Before that, however, the widow was to take the oath that her deceased husband still owed her the deferred dower.
Both agents agreed to this settlement in a binding manner, and the agent of the widow received 39 mitqàl hàkimï, the currency once stipulated in the wedding contract, and the slave in turn now belonged to mother and son.^^^ Both agents ruled out further claims and court proceedings except the widow's oath and the certification of the inheritance. The qâdi al-gamà'a Ibn Baqî had all steps of the proceedings certified in court and notarized in a document of agreement from Safar 457 (January 1065). Before the widow had sworn to her claim, however, the other side broke the agreement and she filed a claim for the withheld items and fulfillment of the agreement. Summoned before the market inspector, Ahmad argued that the stipulations of the agreement were irregular (fàsid), which the widow could only counter with the argument that all agreements were valid according to prevailing practice (sunna).
Most jurisconsults indeed held the settlement signed by the qâdï to be irregular (fisid) and that it had to be annulled (nasakha): for Ibn al-Qattan, even the sale of the vineyard and its offsetting (sarf) the dower was irregular, since Malik had forbidden the selling of inheritance before all debts had been assessed.^-^^ Contradicting him on this point, Ibn ' Abd al-Samad held that the sale of the inheritance was licit, since it was not distributed among the heirs but served to liquidate (igtimà \ literally «collecting») the inheritance and to efface the debt of the dower. All other actions and provisions, however, he considered void, since the widow had not yet sworn to her claim for the dower, which resulted in an -illicit-«postponed change of obligations» {sarf muta 'akhkhar: dayn bi-dayn). The widow had to return the money from the sale and the whole case should be reconsidered.^^^ Ibn Malik approved of this latter opinion that the contract was void, but conceded to the judge the right to sanction the settlement according to his own discretion (al-igtihàd ba'd al-istikhàra). In order to avoid its annullment, one could, on the basis of the Koran, apply the concept of salaf, a sale with deferred delivery.^^^ Only the prestigious jurist Ibn 'Attàb held the settlement between widow and other heirs to be valid, since only God could invalidate any legally binding agreement.^"^^ Unfortunately, we do not know whether the market inspector had jurisdiction over the contractual agreement sanctioned by a qadi, we also cannot say whether he in fact did invalidate it; Ibn Sahl did not consider this point to be important for the juridical discussion of the case. Similar settlements between heirs seem to have occurred quite frequently.^'*' Another inheritance dispute concerned a small house still inliabited by some heirs, which others sued to have vacated in order to reach a better price for it. The unnamed market inspector (sahib al-ahkàm) consulted the jurists on such a case, in which some heirs of Khalaf b. Sa'ïd had demanded an assessment of the house for sale and claimed that this should be done in an uninhabited state. The other group had consented to the assessment, but insisted on hving in the house for rent.-"^^ Ibn 'Attâb held with his teachers that a house too small for partition should be vacated by its inhabitants and sold in such a state, unless strangers agreed to rent the house on short notice under the condition that it may be sold.-"^^ Ibn al-Qattan, on the other hand, considered the high damage caused by the loss of rent and suggested an agreement between the heirs on a sum of rent. Should this fail, the house had to be vacated and offered publicly for rent under the reservation of a later sale. The highest bidder could live in the house and had to pay the heirs in proportion to their shai'es. The heirs, however, had the right to overbid this rent and live in the house.^"^ Such constellations must have been quite frequent in a society in which the law of inheritance confronted the widow living in her husband's house with his other agnatic heirs, who did not belong to the same household but could demand a partition of the inheritance. The role of the market inspector in these cases was not to determine the inheritance and its partition as such, but he was consulted in aspects connected to the selling of the inherited property.
Disputes between neighbors were also brought before the market inspector. There, legal solution was not based on contractual law, but considered on the basis of the principle «to prevent detriment without causing undue disadvantage» {là darara wa-B diràra)?^^ In the first case of this kind, Yahyà b. Ga'far b. Mudimm and his wife Hind alleged that their neighbor Israq, a client (mawlû) of Muhammad b. Hubba,^"^^ had recently attached some stairs to the northern wall of their estate, situated in the Abu Riyáh Mosque Quarter in the old city of Cordoba. They claimed that these stairs leading to one of their neighbor's rooms damaged their wall. In addition, the edges of two thresholds and the beams of a room had been inserted into the ceiling of their reception hall; and the smoke caused by the recently established oven in that room also damaged them. Israq acknowledged her neighbors' right to an intact wall, but claimed that stairs and oven had been long established. Aside from this acknowledgement, it was certified in court that the ceiling belonged to the claimant's real property and, to the knowledge of these witnesses, had not been sold. Two witnesses testified in favor of the claimants that neither thresholds nor beams had been attached to the wall, and one of them added that he knew the wall in that condition twenty years ago. The defendant in turn presented an istir'à' document whose witnesses attested to knowing that the present situation, with the stairs and beams and thresholds inserted into the ceiling, had existed for more or less 30 years. Only one of these latter witnesses, however, was accepted by Ibn Harîs.-'^'^ Ibn 'Attâb and Ibn al-Qattan held that the defendant had not succeeded in establishing her claim and that a qadà' ruling should be made to dismantle these new constructions and to restore the earlier situation. Ibn al-Qattan argued that the claimants had to take the oath because of the legal doubt (subha) caused by the one witness in favor of the defendant, but Ibn 'Attâb did not hold an oath to be necessary. Ibn Malik held the testimony in favor of the claimants to be without legal consequences, since it attested to a very old situation. If constructions actually were from that period, they would be sanctioned by their age {istahaqqa bil-qidm). Since however the defendant had not established in court that the constructions were old, the preponderance of legal evidence returned to the claimants, who could take the oath that the constructions had been recent. This would result in their dismantling. But they could also refuse to swear, which -unspokenly-would result in preserving the status quo. In the end, Ibn al-Qattan and Ibn Malik came to the conclusion that the claimants could only have the constructions removed if they took the oath that they were recent ones. Ibn 'Attâb opted against the oath,^"^^ and we are not informed about the judge's ~^^ Variation «Hayyi», both not found in biographical dictionaries.
^"^^ This is totally ignored by Khallâf in Ibn Sahl, 'Umrcin, 24. The jurisconsults did not deal with the possibilities Khallâf presents. A continuation of the proceedings with new evidence cannot be ruled out, of course, but this must remain speculation. decision. It is important to say that testimonial evidence in this case was not rejected because it was contradictory, but for legal reasons in each individual testimony.-"^^ Another case before the unnamed sahib al-ahkam shortly after 462/1070^^^ dealt with the damage caused by people looking into their neighbors' premises in the densely populated old quarters of the city. Two sons of Ibn al-Mírání^-^^ sued their neighbor Fátima because people could reach a forward extended roof of her house by a door, sit there and look from that into their own premises. The sill, raff,^^^ of this roof terrace was so near to their own roof that one could even climb over and look into their courtyard. Witnesses certified in court that this was a substantial detriment to the claimants. The husband of the defendant, Abu l-Qasim al-'Umarî, who was her legal agent in this case, had his own witnesses certify, on the other hand, that this door was not causing detriment to the neighbors: this roof faced a different direction and one could not see anything of the neighboring piece of real estate. The claimants could not, for any reason, reject these witnesses, and referred to what habitual practice (sunna) had made obligatory. The defendant also stated in court that no one ever went on this roof, but the claimants asserted that they had seen persons there who behaved in a disgraceful manner.^^^ Considering these contradictory testimonies, both jurisconsults, Ibn Sahl and Ibn Farag, held that the testimony of detriment took precedence over its denial,^^"^ and that the detriment must be ended. But under the principle of là darara wa-là diràra, the detriment in this case was not so substantial that the door had to be removed. The judge decided to have a big balustrade (sargab) installed in front of the door to prevent access to the roof. In this, he followed the opinion of the jurisconsult Ibn Farag, who referred to a similar decision of the qadi al-gamà 'a Ibn Zarb (d. 391/1001).^^^ Ibn Sahl, who in his own fatwà had suggested 2^"* If, however, the witnesses of a denial had a higher integrity, so Ibn Farag in his response, court witnesses and experts had to go to the site and see whether one could look into the neighbors' buildings.
^^^ Ibn Sahl, 'Umràn, 112f. This decision was made according to discretionary opinion {istihsan) and not authoritive rulings; Ibn Zarb to the qadi Ibn al-Saffar (d. 429/1037-8), cited by IbnSahl, z77/¿/., 115. In none of these disputes between neighbors was the claim of detriment challenged at the level of religious considerations, as happened in the following case: someone complained to the market inspector Abu 'All Ibn Dakwan^^^ about Sulayman al-Saqqaq who ascended to the roof of a mosque near his home in the middle of the night, called for prayer and prayed aloud until dawn. The claimant asserted that this conduct was a detriment to the neighbors (darar 'ala al-gimn). Sulaymán, when asked by the judge, acknowledged his behaviour, but alleged that he did this only for one hour. Sulaymán was a follower of AbüT-'Abbas Ahmad b. Abfl-Rabi' al-Ilbïrï, a successful preacher (wà'iz) in the Great Mosque of Cordoba, who died there in 432/1040.^^*^ When Ibn Dakwàn consulted the jurists, two of them, Ibn Gurg and Ibn Dahhün, were favorable to the complaint, both on the grounds that Sulayman's conduct deviated from that of his devout predecessors. But two other jurists, al-Masîlï and Ibn 'Attàb, supported the defendant's behaviour as pious conduct.^^^ The striking fact that this complaint was treated as a question of religion can be seen in its relation to the preacher Ibn Abfl-Rabi', whose sudden death during one of his sessions in the Great Mosque only a few years later -the claim against Sulaymán was before the death of Ibn Dahhün and al-Masïlï in 431/1039-had caused turmoil among the common people.^^' Contrary to Marin's interpretation, al-Masîlfs objection, that a case like this should not be presented to the wordly power (sultan), was not directed against the qadi jurisdiction^^^ but against the market inspector Ibn Dakwan in his capacity as agent of the political power. For all practical aspects of jurisdiction, we should not forget that the case was filed as a