Abstract
In the second half of the nineteenth century, practitioners of law in Iran were looking for more flexibility in contractual forms, especially those used to conclude routine transactions of properties and services. They increasingly made use of a type of contract named muá¹£Älaḥa-nÄma, derived from the legal concept of á¹£ulḥ and defined primarily as a means to arrange the amicable settlement of disputes. The present contribution attempts to categorise the kind of transactions for which this universal contractual type could be employed and raises the question what advantages such a ânewâ contractual form might have entailed.
Introduction
Manuals and handbooks of law can provide a first impression of legal practice and convey an idea of preferred forms of legal transactions and documentation at a certain time and in a certain region. When such information on legal practice enters the domain of language training, this impression is enhanced further. For students of Persian at the beginning of the twentieth century who wanted to leave the narrow confines of classical grammar and literature and were interested in aspects of trade, commerce and law, the range of material at their disposal was limited. One of the few textbooks written with the explicit aim of teaching applied knowledge of âmodernâ Persian to a German audience was Sebastian Beckâs Konversationsgrammatik (1914-15). The author, writing on the eve of World War I, deemed at least a passive command of the scripts NastaÊ¿lÄ«q and Shikasta to be necessary, and for the advanced student he included a number of exemplary models of decrees, contracts and deeds. The main volume of Beckâs grammar introduced these examples in handwritten Shikasta while a separate key to the grammar offered translations and basic expressions in transliteration.1
The author, Sebastian Beck, emphasises the authenticity and up-to-date standard of the sample documents of Islamic law taken from a manual entitled Sayyid al-inshÄʾ-i naw-áºuhÅ«r, widely used and distributed in Iran in the second half of the nineteenth century and beyond.2 Looking at the documents included and taken verbatim from this work of inshÄʾ which Beck placed under the heading Legal documents needed by the public,3 we see that immediately after the sample of a marriage contract (Ê¿aqd-nÄma) and a letter of attorney (wikÄlat-nÄmcha), he introduced a standard civil law contract: Ṣūrat-i qabÄla-nÄmcha-yi sharÊ¿Ä«, which can be roughly translated as Formulary for a standard deed according to sharia law.4
QabÄla is a generic term that simply means any kind of written contract, and Beckâs translation of the term thus emphasises the actual contents of the deed, calling it a âGrundstücksvertragâ or a contract of landed property. In reality, this sample document is composed in the form of a muá¹£Älaḥa-nÄma, a contract of settlement or composition, whereby in this specific case the ownership over a specified garden is transferred to another, unnamed party for a certain sum. The further context of other sample transactions provided by Beckâa deed of conditional sale (bayÊ¿-i shará¹),5 a testament (waṣīyat-nÄmcha) or the request for a fatwa (istiftÄ-nÄma) indicates that the qabÄla (or rather the muá¹£Älaḥa) is introduced as a typical example for documenting a simple sale. Beckâs Persian textbook, with its choice of select legal formularies, is an excellent indicator of the type of texts considered representative in Iran at that time.
Formulary for a standard deed according to sharia law (1914)
Citation: Journal of the Economic and Social History of the Orient 64, 5-6 (2021) ; 10.1163/15685209-12341555
The question arises why a late nineteenth- / early twentieth-century manual of legal writing from Iranâconsidered so characteristic that it found its way into a German textbook of modern Persianâdoes not use an ordinary contract of sale (i.e. a mubÄyaÊ¿a) as a model contract? Furthermore, why does this specific form of contract (i.e the muá¹£Älaḥa) appear so frequently in nineteenth-century Persian legal usage, becoming the typical standard deed for transactions (qabÄla) in Iran?
This paper traces the rise of the muá¹£Älaḥa to become the most frequently used contractual form in Iranian legal practice in nineteenth-century Iran and suggests several possible reasons for this development. It also addresses a number of questions that go beyond the immediate issue of legal formularies.6 In how far did changes and developments in the judicial system and judicial practice influence the choice of certain contractual forms? How flexible was Shiite law to accommodate social needs by a growing and more diverse society? Is the muá¹£Älaḥa-contract a primarily Shiite-Iranian phenomenon or if not, how does it translate into the wider Persianate legal sphere?
1 Shiite Judicial Practice in QÄjÄr Iran
Before delving deeper into the main subject of this article, contracts of settlement or muá¹£Älaḥa-nÄmas, some general background on civic legal transactions in Iran, in particular for the later QÄjÄr period from the mid-nineteenth century up to the 1920s, may be helpful. Most of the historical documentation on civil transactions at our disposal, which is to say transactions between private individuals or parties and thus excluding transactions involving taxes, salaries or grants by state or governmental authorities, deals with either agricultural land (including water rights) or real estate.7 In the Iranian case, it has been difficult to look closer into commercial transactions related to merchants and goods such as textiles, food commodities, currencies etc. without recourse to the registers and balance sheets of western trading houses or consular files.8
In short, while transactions involving the physical bazaar proper with its shops, khans and caravanserais were the object of formalised legal documentation, objects traded inside the bazaar often did not involve notaries, judges and scribes, as far as they dispensed formularies of Islamic Shiite law. Reasons for this are manifold; some have to do with the organisation of legal practice in Iran, some with the special situation of merchants and their internal methods of bookkeeping, some with limited access to private collections and some as well with a lack of interest in the field of historical research.9
With few exceptions, Iranian civil law followed the ordinances and prescriptions of Shiite jurisprudence which differ in its formularies and contractual types from those employed in Sunni, mainly Ḥanafī legal systems in other parts of the Persianate world. In other words, Persian as a legal language is secondary to the legal standards, expressed and discussed in Arabic, of the respective law schools and works of jurisprudence. The large percentage of Arabic legal expressions and phrases, sometimes misspelled and not always fully understood by the scribes, is a living testimony to this dominance.
The institutional side of judicial practice in Iran is also of utmost importance. Following the demise of Safavid rule and the emergence of the uṣūlÄ« legal school in the eighteenth century, the separation of state authority and judicial practice became ever more pronounced. Appointments to the position of judge (qÄżī) or imÄm-jumÊ¿a (âleader of the Friday prayerâ, i.e. leading cleric of a town) still occurred in the QÄjÄr period, but became increasingly symbolic and nominal. The practice of civil law, including both notarial tasks and the solution of disputes, was in the hands of independent Shiite jurisprudents, mujtahids, who practised law in their largely independent and individual courts. Shiite scholarly hierarchies controlled, and certified the new judicial system by evaluating the individual mujtahidâs prestige and reputation. In this way, diverging decisions and rulings could be evaluated and balanced.10 This becomes most obvious in the amalgamation of judicial verdicts (aḥkÄm) and judicial opinions (fatÄwÄ)âwhich explains why the legal handbook quoted above introduces the correct form of asking for a legal opinion (istiftÄ-nÄma) as one of the most important legal documents.11
2 The Legal Practice of á¹£ulḥ and muá¹£Älaḥa
When I began research on the social history of Iran in the early nineteenth century, now some two decades ago, and was searching for documents in the archives of a research institute in Tehran, I formulated my request for decrees and deeds from a certain period and region. So you are also interested in muá¹£Älaḥa-nÄmas, I was asked by the archivist, andâat that timeânot knowing exactly what he meant by the term, I nodded and received a couple of deeds of sale on land and real-estate. A cursory glance in the dictionaries showed that muá¹£Älaḥa meant an amicable settlement of disputes, but could be also used more colloquially with the simple meaning of transfer of ownership. For the moment, this seemed sufficient information. However, I soon realised that the number of documents from the sharia courts recorded in the legal form of a muá¹£Älaḥa increased markedly in the second half of the nineteenth century. In fact, many transactions formerly recorded with distinct formularies as sale (bayÊ¿) or rent/lease (ijÄra), or donation (hiba), were now written down as muá¹£Älaḥa-nÄmas. The verbal noun (maá¹£dar) muá¹£Älaḥa, derived from á¹£Älaḥa, is used to denote the legal contractual form of âcompositionâ or âsettlementâ (á¹£ulḥ) in analogy to mubÄyaÊ¿a (sale) or muÊ¿Äważa (exchange). The legal concept of á¹£ulḥ denotes in its basic literary meaning âpeaceâ, and in a more legal terminology it carries the meaning of âcompositionâ, which is to say a mutual agreement or paying off a debt or an obligation. Surprisingly, few of the muá¹£Älaḥa-nÄmas I studied at that time mentioned a preceding conflict, dispute, obligation or debt, neither explicitly nor implied.
Traditionally, the legal concept of á¹£ulḥ as a peaceful agreement is based on a number of Koranic passages that laud amicable settlements as commendable, as well as on a number of hadiths.12 Among the best known hadiths is the one ascribed to the caliph Ê¿Umar as transmitter in Sunni collections: âThe proof is upon the plaintiff, the oath upon the defendant, and a peaceful settlement between Muslims is permissible, unless a settlement allows something forbidden or forbids something which is allowed.â13 In this regard, the principal purpose of á¹£ulḥ is to end disputes among Muslims, and in a wider context also to end armed conflicts and war between Muslims and non-Muslims.14
In a Sunni, particularly ḤanafÄ« context, the aspect of arbitration or mediation therefore dominates the use of á¹£ulḥ in courts, and to provide mechanisms of conflict resolution is seen as one of the major tasks of judicial authority.15 Paolo Sartori notes that the qÄá¸Ä«sâ judicial powers in Central Asia were often limited to the process of notarization of such settlements, rather than actually negotiating them. Still, this use of á¹£ulḥ in Central Asia does not appear to have influenced the actual formularies of transactions or contractual practice, although some of the examples introduced by Sartori related to waqf look similar to the Iranian practice.16 The Hedaya, that is al-HidÄya fÄ« sharḥ bidÄyat al-MubtadÄ«, as one of the major compilations of Islamic or rather Anglo-Mohammedan Law, also sheds light on the various aspects of á¹£ulḥ, here treated under the name of Soolh or Composition. In the well-known and widely used version by Charles Hamilton, translated from the Persian, the similarities of á¹£ulḥ to sale or hire are mentioned, but without explicitly naming them as a practical alternative to the standard contractual forms.17 This suggests that in the case of á¹£ulḥ/muá¹£Älaḥa a shared Persianate linguistic and legal heritage has less a determinative impact on the form and contact of legal documents than do differences of practice emerging from the Shii-Sunni divide.
While there are clear differences among the Sunni legal schoolsâin particular al-ShÄfiÊ¿Ä« and his followers introduced the analogy between sale (bayÊ¿) and á¹£ulḥ and moved the early discussion in Islamic law over á¹£ulḥ towards a contractual understandingâthe basic understanding of á¹£ulḥ as a means of mediation or balancing of claims remained in the foreground.18 The legal practice in Shiite law, however, opens up a much wider field as the following three examples from QÄjÄr Iran vividly illustrate.
2.1 First Example: The Murder of the Camel-Driver Qadīmʿalī
The first case is the narrative of a peaceful solution to an impending blood feud between two villages:
The reason for writing this deed is as follows: Some time ago, a certain QadÄ«mÊ¿alÄ« from the village of KakÄ«n in the vicinity of QazwÄ«n, who was a camel-driver in the service of the amÄ«r-panja Manṣūr al-Salá¹ana, had gone to the village of MaḥmÅ«dÄbÄd to let his camels graze there. Confronted by the villagers of MaḥmÅ«dÄbÄd, a fight broke out, in the course of which QadÄ«mÊ¿alÄ« was killed. Since the murderer was not known, the claim for blood money (diya) for this murder was raised collectively against all peasants of MaḥmÅ«dÄbÄd. The only heirs of QadÄ«mÊ¿alÄ« were his little daughter and his wife. After a while his daughter passed away too, and the only remaining heir was her mother, the wife of QadÄ«mÊ¿alÄ«. His wife named Maná¹£ur al-Salá¹ana, his former employer, as her representative (wakÄ«l) in the task of demanding the blood money, which he did.
Now, three parts (dÄng), constituting half of the village, belonged to MÄ«rzÄ IbrÄhÄ«m KhÄn WakÄ«l al-raÊ¿ÄyÄ (the ombudsman) and to a certain RafÊ¿at al-Sulá¹Än. The peasants under the patronage of these landlords in their turn raised a claim against the looting of property and damage which had befallen the village of MaḥmÅ«dÄbÄd following this murder by the hands of peasants and armed men from the village of KakÄ«n. The damage and harm were brought before us [i.e. the judge] and the peasants named the WakÄ«l al-raÊ¿ÄyÄ as their representative. When this dispute resulted in the reciprocal taking of oaths (and thus resulted in a stalemate), the two representatives agreed on a peaceful settlement on this issue.
Therefore, the WakÄ«l al-raÊ¿ÄyÄ representing the peasants of half of the village, especially the seven separately mentioned individuals, dropped their claims with regard to the pillage and damage, whether it amounted to one or 500, or even 1000 tÅ«mÄn, in a contract of peaceful settlement of their own free will with Manṣūr al-Salá¹ana, for the settlement price (mÄl al-muá¹£Älaḥa) of one sÄ«r19 of crystal sugar (nabÄt-i bandarÄ«) and the recital of five á¹£alawÄt, praising Muḥammad and his family. The other party accepted the settlement, and the contract of settlement as prescribed by the sharia became valid between them, the settlement price was handed over, and the five á¹£alawÄt were proclaimed, this took place in the month of áºÄ«-qaÊ¿da 1318 (February/March 1901).20
The settlement in the case of the murder of QadÄ«mÊ¿alÄ« represents exactly what we would expect of a peaceful solution of a conflict. In a situation where oath stood against oath, where no individual culprit could be identified, where one party had already taken the law into their own hands and the danger of a blood feud between neighbouring villages appeared imminent, and, moreover, where the victim had left no male heir, a settlement was the logical way out. The âpeaceâ (sulḥ) is offered by the villagers of MaḥmudÄbÄd who relinquish their claims of compensation for the symbolic settlement price (mÄl al-muá¹£Älaḥa) of one sÄ«r of crystal sugar, and is accepted by the other party who quietly drop their demand for blood money.
The above paraphrasing translation hides to a certain degree the stringent contractual style of the deed. This is not a court ruling, and while it includes and integrates the record of a mediation, it is primarily a contract that follows the rigid formulary of offer and acceptance that in its basic structure emulates a sale deed. Still, such examples of muá¹£Älaḥa contracts are rather the exception than the rule, as the other examples will show, and where an underlying dispute, quarrel, or set of conflicting claims cannot be discerned immediately.
2.2 Second Example: BÄ«bÄ« FÄá¹ima Sells a Shop to Finance Her Pilgrimage to the Ê¿AtabÄt
The second example of a muá¹£Älaḥa-deed comprises a sale between relatives, but in addition addresses questions of inheritance and includes a number of unusual, special stipulations:
The reason for writing this deed is the following: BÄ«bÄ« FÄá¹ima, the wife of the late UstÄd Muḥammad RiÅ¼Ä the Dyer, transferred through a contract of á¹£ulḥ (muá¹£Älaḥa namÅ«d) to UstÄd ḤÄjjÄ« BÄbÄ the Goldsmith, who is the nephew of her late husband, one complete dyeing shop (dukkÄn) located in the New Bazaar, a description of its boundaries is included, for the settlement price (mÄl al-muá¹£Älaḥa) of 30 tÅ«mÄn of current currency, which is to say 300 pieces of á¹¢Äḥib-qirÄns, under the following conditions:
He has to provide stone slabs over five graves [of the family] on a complimentary basis (ba-á¹arÄ«q-i taÊ¿Äruf) and to provide for four years of prayers and fasting (á¹£aum wa-salÄt) on behalf of four deceased family members, as well as two sessions of mourning rituals (taÊ¿ziya-dÄrÄ«). Another stipulation is that he will provide all necessary equipment for the afore-mentioned Sayyida when she goes on pilgrimage to the Ê¿AtabÄt shrines in Iraq; this includes shoes, a tent (chÄdur-i shab), and copperware necessary for traveling. From the mentioned amount he shall pay 10 tÅ«mÄn after 10 days and the rest after two months, and in case the afore-mentioned Sayyida desires to depart speedily before the mentioned time span of payment, he shall pay all 30 tÅ«mÄn in cash and forward it to her.
After this transaction UstÄd BÄbÄ himself offers a muá¹£alaḥa-contract covering all his possible cancellation rights (khiyÄrÄt), among them the right of cancellation because of fraud; for the settlement price (mÄl al-muá¹£Älaḥa) of one man of wheat and 100 dÄ«nÄr in cash, the formal conclusion of the two muá¹£Älaḥas was finalised through offer and acceptance (Ä«jÄb wa qabÅ«l) in Arabic and Persian on 1 á¹¢afar 1248 (30 June 1832).21
This contract is outwardly a sale in the form of a muá¹£Älaḥa, but the circumstances hint at a pre-arranged transfer of expected inheritance to a nephew, combined with a guarantee of financing a pilgrimage and other religious activities. Interesting is the inclusion of a second settlement-contract that removes all rights of cancellation for a nominal settlement price. This is a frequent construction in sale contracts of the late nineteenth century to exclude later legal procedure and attempts to rescind agreements in court.22 So we see the case of a double, reciprocal contract of composition.
Sayyida BÄ«bÄ« FÄá¹ima appears as a candid widow with very clear aims of travel. Still, without further background information, it is difficult for us to grasp the reality behind this legal construction. Her nephew might have followed in the footsteps of her late husband, continuing the family business in running the dyeing shop and funding his beloved aunt a long desired pilgrimage. Equally probable is the possibility that relatives, including her nephew, refused to take care of family graves and wanted to remove BÄ«bÄ« FÄá¹ima from her husbandâs shopâsending her off to the Shrines in Iraq might have been a way to ensure her compliance. The additional second muá¹£Älaḥa suggests that the parties were not operating on a basis of trust.
2.3 Third Example: A Rental Contract with Legal Small Print
The third sample is a contract of rent or lease issued by áºahÄ«r al-IslÄm, the chief guardian (mutawallÄ«bÄshÄ«) on behalf of the trustees of the shrine of ImÄm RiÅ¼Ä in Mashhad, dated RabÄ«Ê¿ II 1334 (beg. 9.2.1916).
After Praise and Commendation: The trustees of the ÄstÄna-yi Muqaddasa (the Sacred Threshold) transferred with the permission and signature of the Ḥujjat al-IslÄm (= the mutawallÄ«bÄshÄ«) through a contract of settlement (muá¹£Älaḥa namÅ«dand) to MÄ«rzÄ Muḥammad b. ḤÄjjÄ« Ê¿Abd al-Ḥusayn, a merchant from Tehran resident in Mashhad, the complete produce (ḥÄá¹£il wa-manÄfiÊ¿) of half of the hamlet BÄ«ldar, half the hamlet of ÄbkÅ«h, and all of the hamlet Sarbarq, all of them waqf property of the Holy Shrine, with all that pertains to it from a sharia or customary legal view, from autumn of the current year, the Year of the Rabbit 1333, and the harvest of the Year of the Crocodile 1334, onward over a period of full seven years, including both summer and winter harvests, for the settlement price (mÄl al-muá¹£Älaḥa) of 1001 tÅ«mÄn in cash and the amount of 215 kharwÄr, 60 man of grain and 21 kharwÄr of straw, which amounts to a defined yearly rate [details being calculated].
Of special interest, however, in this contract of lease are a number of specialâand sharia-conformantâstipulations that are an integral part of the contract and are introduced thus:
âin the course of the contract, the following conditions were laid downâ (fÄ« żimn al-Ê¿aqd shurÅ«á¹-i sharÊ¿Ä«ya wÄqiÊ¿ shud):
All agricultural expenditures (makhÄrij-i zirÄÊ¿atÄ«), including the cleaning and upkeep of the water channel (qanÄt) are the obligation of the one accepting the settlement for the whole period.
In the case that the payment of the settlement price (mÄl al-á¹£ulḥ) is delayed, whether completely or in part, whether concerning payments in cash or in kind; or in case the one accepting the settlement passes away, while the trustees of the waqf have no trust in the heirs of the aforementioned; or the lessee transfers activities to another person without the permission of the waqf`s trustees; or there are manifestations of deceit and fraud in the endowed object; in all these cases the right to dissolve (faskh) the muá¹£Älaḥa rests with the trustees of the waqf.
In the case that marauding troops enter the land or hail damages the harvest to a degree that the landlordâs share in summer and winter amounts to less than half of the settlement price of that year, the trustees of the waqf will seize the complete harvest and the outstanding amount will be considered as a reduction for the lessee, while the amount of six kharwÄr of grain will be provided as seed from the property of the Holy Shrine. However, it remains the obligation of the lessee to return this amount at the end of the total rental period, together with the object of á¹£ulḥ [i.e. the land rented out].
In the case that the mentioned stipulations is violated and results in a dissolution of this contract, the trustees of the waqf are entitled to seize the seed that the lessee has stored from his own property in the villages in the range of 1 man to 20 kharwÄr.23
In the previous example, the muá¹£Älaḥa emulated a contract of sale; here it reproduces a contract of rent or lease that evokes decisively modern connotations in its small print. The management of the Holy Shrine as the lessor attempts to place the onus of possible loss on the lessee; it reserves the right to dissolve the contract in various instances and the term of lease is short in comparison to medieval and early modern contracts. Overall, the contract appears to be rather disadvantageous for the lessee.
The three examples presented all carry special features and already provide a rough idea why the muá¹£Älaḥa-contract was so popular. Especially the third example suggests that it must have been easier to insert special conditions (shurÅ«á¹) in a contract of settlement or composition than to incorporate them in the more rigid formulary of a traditional contract of lease.
It would, however, be wrong to assume that all muá¹£Älaḥa contracts were so specific and detailed. In fact, the large majority of them can be seen as simple contracts of sale or exchange as in the model formulary provided in Beckâs grammar. The contract of á¹£ulḥ is able to accommodate a wide variety of possible practices, and the following list is far from exhaustive:
-
a ârealâ settlement in case of reciprocal claims, disputes or debts
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a reallocation of landed property to alleviate agricultural use
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the settlement of inheritance disputes or redistribution of inherited property, often in connection with the conclusion of testaments
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granting, relinquishing or transferring rights resulting from marriage contracts, in particular âdowryâ (mahr)
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a contract of sale
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a contract of rent or lease
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a service or work contract (i.e for religious services or pilgrimages); partly constructed as a conditional clause (shará¹) in a muá¹£Älaḥa
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a contract of donation (hiba) often as a fictitious contract for a nominal amount
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the combination of several contractual forms in one contract
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the insertion of special clauses (shurÅ«á¹)
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the prevention of legal claims, litigation or cancellation
This variety and the widespread use of á¹£ulḥ/muá¹£Älaḥa has been captured equally well in the examples chosen by Omid Rezaâi in his Introduction to Shariâa Documents. His emphasis is on the âresultsâ (natÄyij) provided by this universal contractual form that seems to be applicable on every occasion. Rezaâi shows that a muá¹£Älaḥa can deliver the result or outcome of a contract of sale, of rent or of donationâbut its advantage lies in the fact that certain conditions can be avoided in preferring this type over the âoriginalâ contractual form. For example, a donation in the traditional form of a unilateral hiba (âgiftâ-contract) is to a certain degree revocable and can be rescinded (faskh), whereas the contractual form of á¹£ulḥ delivers the same result, namely the transfer of property without ârealâ compensation, but is bilateral and binding (lÄzim).
Rezaâiâs first and opening example is thus a contract concluded between a woman and her husband wherein she transfers all her paternal and maternal inheritance to him for a nominal amount. Such a transfer would not have been possible within the framework of a unilateral gift-contract (hiba), as the transaction covers several properties and indirectly involves inheritance law.24 The second and third examples that Rezaâi offers show a muá¹£Älaḥa contract emulating a rental contract (ijÄra) and a muá¹£Älaḥa contract emulating a final and irrevocable sale (bayÊ¿-i qaá¹Ê¿Ä«) respectively.25
The dominance of muá¹£Älaḥa contracts in the late QÄjÄr period is not simply a subjective impression gained in passing from working in various archives and looking at collections of edited documents.26 As Nobuaki Kondo has shown in his illuminating studies on Tehran sharia courts and their registers, the preference for á¹£ulḥ as a legal tool can also be demonstrated statistically. He has drawn on three registers compiled by two jurists, Sayyid Muḥammad á¹¢Ädiq ṬabÄá¹abÄʾī SangalajÄ«, covering the years 1867-68 and 1875-79 (SangalajÄ« I and II), and Shaykh FażlallÄh NÅ«rÄ«, covering the years 1886-89.27 These registers include records of commercial transactions (sale, conditional sale, loan, lease) and family law (marriage, divorce), as well as the resolution of disputes and legal verdicts, in short the whole range of Islamic law. Kondo distinguishes á¹£ulḥ/muá¹£Älaḥa settlements of disputes (including the settlement of dowry claims) from transactional muá¹£Älaḥa contracts emulating sale or lease.28 In the case of simple sale transactions, the muá¹£Älaḥa contract type was employed in more than two thirds of all cases from his corpus.29
3 Ṣulḥ in Shiite Legal Theory
Let us return to the legal definition of á¹£ulḥ and the actual basis for the classification of muá¹£Älaḥa as a contract. Early Shiite legal literature is in fact very close to its Sunni counterpart in its description and categorisation of á¹£ulḥ. Thus Shaikh ṬūsÄ« in his al-MabsÅ«á¹ of the eleventh century denies á¹£ulḥ the status of an independent contract and declares it to be a subdivision or branch (farÊ¿) of other contracts, and he distinguishes these subdivisions (furÅ«Ê¿) as being those of sale (bayÊ¿), remission of debt (ibrÄʾ), rent (ijÄra), loan (Ê¿ÄrÄ«ya), and donation (hiba).30 In the thirteenth century, Muḥaqqiq al-ḤillÄ«âs SharÄyiÊ¿ al-IslÄm abandons this view and declares that á¹£ulḥ should not be regarded as a subdivision of other contracts, even if it emulates the benefits of these contracts. That á¹£ulḥ (composition) is an independent institution in Shiite law was by now the majority view and also differentiated Shiite law from the ShÄfiÊ¿Ä« tradition.31 Despite this more open definition of á¹£ulḥ, the discussion of á¹£ulḥ in its practical application was rather limited around this time and remained indebted to older traditions. Thus, a large part of Muḥaqqiqâs chapter on á¹£ulḥ deals with what we would call nowadays âbuilding regulationsâ, such as the question of whether the owner of a house is allowed to affix to his house a veranda that reaches out into public alleys.32 This open definition of á¹£ulḥ remains quite stable and the major and monumental nineteenth-century commentary JawÄhir al-KalÄm on Muḥaqqiq al-ḤillÄ« has astonishingly few new examples or questions to add to this in its chapter kitÄb al-á¹£ulḥ.33
A new step in the legal approach to á¹£ulḥ is taken in the Safavid period, by authors such as ShahÄ«d al-Awwal, BahÄ al-DÄ«n al-Ê¿ÄmilÄ«, and Ḥurr al-Ê¿ÄmilÄ«. In an attempt to popularise the understanding of á¹£ulḥ, BahÄ al-DÄ«n provides the henceforth standard definition that á¹£ulḥ is a contract that the lawgiver has established in order to settle conflicts between men. According to him, á¹£ulḥ can then be divided into three major categories: first, á¹£ulḥ between Muslims and the ahl-i kitÄb, i.e. in connection with jihÄd; second, á¹£ulḥ between husband and wife in a divorce suit; and third, á¹£ulḥ between two parties arguing over property. Here, á¹£ulḥ is a binding (lÄzim) contract that follows clear conditions, and has to be expressed in the form that we know already from our previous examples: âI settle (muá¹£alaḥa kardam) the following dispute with you (ba tu) for the fixed amount of â¦â.34
As we see, there is a clear evolution of a distinct Shiite concept of á¹£ulḥ over the centuries that leads to the definition of á¹£ulḥ or muá¹£Älaḥa as an independent, binding and universal contract that can be applied in a wide variety of circumstances. However, the question remains whether the legal literature of the nineteenth century actively supports or legitimises the preference of the muá¹£Älaḥa contract over other contractual forms. In other words, does the legal literature comment on what can be glanced from the legal practice? This is crucial as the mujtahid-jurists that run the sharia courts stand in a close student-teacher relationship to the main authorities of Shiite law, and sometimes are both juristic authors and practitioners. While there is a steady growth of legal advice literature, printed in Arabic and Persian, there is also a reluctance to further expand the Safavid definition of á¹£ulḥ and especially in the twentieth century a return to more traditional topoi.
Two examples might help to make this point clearer. The first such example is taken from a typical Question & Answer work (suʾÄl wa jawÄb) from 1842: a question posed to and answered by one of the most famous and powerful mujtahids of QÄjÄr Iran, Muḥammad BÄqir al-ShaftÄ«.
A woman has transferred (muá¹£Älaḥa namÅ«d) her properties, consisting of a house, land etc. to her son-in-law under the condition that the recipient carries out a number of activities after her death, such as a pilgrimage, prayers and fasting and Koran recitations. Now the recipient, who shall be called Zaid, comes and in his turn transfers as a muá¹£Älaḥa all these properties on to his young son who is a minor, without any conditions. Then once more, assuming the custody of his son [he feels guilty] and in the name of his son transfers as a muá¹£Älaḥa some of the properties [back] to the descendants of the woman [re-]inserting the previous conditions. Is the second muá¹£Älaḥa valid or not, and does the father in this case really have the automatic guardianship of his son?35
ShaftÄ« concludes in his reply that all three contracts of composition are valid and unproblematic, even the transfer on behalf of his minor sonâunless blatant corruption is apparent. He emphasises, however, the question of intent as the crucial legal problem in this case: Did the woman who concluded the first muá¹£Älaḥa intend that only the first contractual partner should carry out the religious tasks on her behalf, or did she agree to a transfer on to her heirs at a later point? If there is doubt on this point, any further contractual agreement becomes void. In earlier books of the Q&A type and in most legal Shiite handbooks, the chapter on á¹£ulḥ is rather insignificant and small. The fact that someone like Muḥammad BÄqir al-ShaftÄ«, a fierce protagonist of Ê¿ulamÄ independence in the city of Isfahan, reserves a relatively large space for questions on á¹£ulḥ in his book might be seen as an acknowledgement that á¹£ulḥ had become more important by the time this book was composed.36
What one can deduct from the above is that actual transactions, such as the one we encountered in the case of BÄ«bÄ« FÄá¹ima, were discussed in the applied legal literature of the nineteenth century. The more theoretically inclined works of jurisprudence, however, maintained the idea that á¹£ulḥ was bound to opposing claims, debts or obligations. On this abstract level, practical examples do not play an important role, and the main emphasis of the jurisprudents is to stress that the general rules of ribÄ and other contracts also apply to á¹£ulḥ. An example taken from Khomeiniâs twentieth-century legal handbook for laymen Taużīḥ al-masÄʾil may illustrate this point:
If someone gives his sheep to a shepherd, so that he takes care of them, for example for one year, and he [the shepherd] uses their milk and provides a certain amount of butter to him [the original owner of the sheep]; and the owner of the sheep settles (á¹£ulḥ kunad) the sheepâs milk as equivalent to the efforts of the shepherd and the provided amount of butter, it is legally correct. If, however, he should lease the sheep for one year so that the shepherd can use the milk, and in exchange, provides an amount of butter, it is problematic.37
This sounds like a casuistic approach of jurists removed from actual practice, as few landlords and peasants would conclude a formal written contract of lease over a flock of sheep. Crucial in this argumentation is the opposition of two contractual forms: that of á¹£ulḥ vs. that of ijÄra. As an ijÄra such an exchange is not allowed, since no fixed rental price is given, whereas the same construction is valid as a á¹£ulḥ, since diverging claims can be simply balanced. One has to be aware that Khomeini in the twentieth century, argues not anymore as a mujtahid ruling in his own court, but as a judicial expert and scholar.
4 Further Reasons for the Spread of Ṣulḥ-Transactions
Beyond the apparent flexibility of á¹£ulḥ as a universal âone-fits-allâ contract, the genesis of muá¹£Älaḥa contracts in legal practice from the seventeenth to the nineteenth century suggests yet another possible reason behind the success of this contractual form. We saw already in our second example with BÄ«bÄ« FÄá¹ima that the need was felt to safeguard a contract and its legal effects from litigation, claims and disputes. The standard way to prevent claimants from challenging a sale, lease or transfer of property was to include an additional, pre-emptory âsettlement/compositionâ in advance. Most frequently this was clad in the formulaic prevention of annulment because of fraud (khiyÄr al-ghabn)âbut other such pre-emptive formulae mention explicitly disputes (daÊ¿wÄ) and exclude legal representatives, relatives or third parties.
This option of inserting an additional, pre-emptory muá¹£Älaḥa occurs relatively early on and can be found already in deeds from the Safavid period. The edited specimen in the appendix from 1156/1743 is excellent as it shows in its clear and concise style both the similarities to the formulary of Beckâs Konversationsgrammatik, a hundred and fifty years later, and the way a muá¹£Älaḥa was inserted as a device to endorse and safeguard an ordinary sale contract. In its outer appearance, this deed from the era of NÄdir ShÄh AfshÄr (r. 1736-47) is a contract of sale over land in Khorasan that is clearly marked as a mubÄyaÊ¿a. Apparently, the contractual parties were afraid of opposing claims and disputes and thus they secured the sale with a double legal contrivance. Any imaginable legal dispute (daÊ¿wÄ) that could come up in the future is settled in advance through a âsettlement/compositionâ (muá¹£Älaḥa), raising the sale price from 70 tÅ«mÄn to 75 tÅ«mÄnâand as this was still not enough guarantee, the selling party in addition gave these possible claimants rights in lease for a total period of ninety years, resulting in a final total price tag of 80 tÅ«mÄn.38
I would suggest that over time it had become more efficient in daily notarial practice to skip one step and to simplify this process of combining a sale with a composition in formulating a sale transfer from the start as a muá¹£Älaḥa. The aspect of avoiding litigation, disputes and claims, however, must have been particularly appealing in later QÄjÄr Iran where legal disputes in and between different legal experts and courts multiplied. The rise of the muá¹£Älaḥa should then be seen as emblematic for a society that became more and more âquarrelsomeâ and confrontational.39
A close observer of judicial practice and realities in the 1940s and early 1950s was Ann Lambton. Familiar with both the situation prior to modern legislation and the new Civic Code introduced under Reza Shah, she pointed out one cause for the attractiveness of ṣulḥ-transactions: transfer of properties in order to circumnavigate inheritance laws and restrictions:
One of the ways by which the excessive subdivision of estates consequent upon the laws of inheritance is to some extent limited is by the owner making gifts of his estates during his lifetime to one or more of his heirs. The form which this transaction takes, however, is not usually that of a gift, but rather of âconciliationâ or á¹£ulḥ.40
Her observation on á¹£ulḥ or âconciliationâ is congruent with our own findings:
âConciliationâ in the Civil Code is extended to cover a rather wider field than in the exposition of al-Muḥaqqiq [see above: al-Muḥaqqiq al-ḤillÄ«, SharÄyiÊ¿ al-IslÄm] who appears to regard it solely as means to terminate a dispute.41
Interesting is her interpretation that sees the codification of the practice of á¹£ulḥ as an acknowledgment of this much wider fieldâin other words taking the view that modern legislation followed and confirmed the developments in Shiite sharia law of the late nineteenth century. In Lambtonâs view, it has been primarily the easy method of transferring property in order to prevent the subdivision of estates through inheritance laws that made the contract of á¹£ulḥ so attractive. This argument is convincing as building and conserving estates is one of the main threads that runs through most legal transactions and disputes. However, as we have seen, it is by far not the only use of á¹£ulḥ.
Combined contract of sale, lease and composition (1156q/1743)
Citation: Journal of the Economic and Social History of the Orient 64, 5-6 (2021) ; 10.1163/15685209-12341555
Conclusion
The legal category of á¹£ulḥ and the contractual/transactional form of muá¹£Älaḥa can be approached through different angles: one is of course the legal perspective of Shiite Islamic law, from its formative period up to its partial canonization in the QÄnÅ«n-i MadanÄ«, the modern Civil Code of Iran from the 1930s. Another one is that of legal practice and the question of how this particular form of contract has been used and to what purpose. The third angle is a diplomatic or formulary perspective, considering in what ways the particular physical contracts of muá¹£Älaḥa were written and whether they constitute a different form of contract also in this regard. Among these approaches, the middle one is the most difficult, asâat least until nowâwe have no ego-statements by the practitioners of law on why they chose one form of contract over another. It would be nice to have a mujtahidâs diary that would explain why in his judicial practice over the years he had recorded more and more sale transactions in the form of a muá¹£Älaḥa. In many instances we are indeed forced into open speculation and hypothesizing, as we can only second-guess the real stories behind many written documents.
The legal literature of the nineteenth century shows, at least in part, that there is a clear recognition of the popularity and wide-spread application of á¹£ulḥ/muá¹£Älaḥa in this period. But while the practice is recognized, this does not mean that there is also a theoretical elaboration of why this phenomenon occurred. In other words, legal literature does not explain why so many practising jurists, such as ShaftÄ« in Isfahan or the SangalajÄ«s in Tehran, chose to formulate most of their transactions in the form of this âuniversal contractâ, or Sayyid al-Ê¿uqÅ«d (âThe Lord of Contractsâ as it is also known, instead of recording a sale as a contract of sale (a mubÄyaÊ¿a) or a lease as a contract of rent (a muʾÄjara).
Since we will not find a clear answer in the sources, we have to consider which factors may have played a role in this development. The influx of a vernacular use of language, such as muá¹£Älaḥa namÅ«d with the unspecific meaning of âtransferredâ, into legal formularies is certainly a case in point.
As the papers collected in this special themed issue are devoted to transactions, my main hypothesis is related to an until now not yet fully understood process of an extension of the legal sphere in late nineteenth century. Practitionersâjurists and clients, courts and officials, laymen and expertsâwere using law and legal documentation on a previously unknown scale. With an extension of the legal sphere and its connection with more and more economic transactions, it is only to be expected that increased flexibility in contractual forms proved to be advantageous. Diverging claims could be transferred, settled and negotiated much more easily and complicated constructions involving inheritance, lease sale and nominal sales could be combined. In general, the holding of property titles became more and more importantâit did not suffice anymore to simply exercise control (taá¹£arruf) over property shares, they had to be documentedâand muá¹£Älaḥa contracts were a convenient way to document and legalize already existing divisions and holdings of property prior to further legal actions (e.g. establishing a testament or an endowment).
In the same way, parties could avoid tiresome and long-drawn legal disputes in court: one of the pervasive origins of a muá¹£Älaḥa seems actually to derive from an additional safeguarding clause, inserted into other contracts; a practice we see and witness from the Safavid period onwards. Thus, to exclude disputes (daÊ¿wÄ) and claims for annulment of contract (faskh) for various reasonsâmost common later arising concurrent claims of ownership over the object soldâan additional, pre-emptive á¹£ulḥ-clause proved useful. In the past, settlements were often included in normal sale or rent contracts to void and exclude later claimsâthus a settlement would preclude possible later court claims.
Using the muá¹£Älaḥa type for a wide variety of legal transactions can be regarded as the outcome of a longer process that saw the shift from an included, additional muá¹£Älaḥa within a sale contract to a replacement of the former by the latter. Why compose a contract of sale (mubÄyaÊ¿a) and secure legal liabilities through an inserted á¹£ulḥ clause if the outcome of the whole transaction can equally wellâif not better and more easilyâbe achieved directly through a muá¹£Älaḥa contract?
This process in the contractual law of transactions in nineteenth-century Iran was linked closely to the unique development of an independent Shiite judiciary and its courts. While the concept of á¹£ulḥ as settlement or mediation was wide-spread in the Persianate world, the use of á¹£ulḥ/muá¹£Älaḥa to emulate a variety of contracts did not catch on in other regions influenced by Persian as a legal language, neither in Central Asia, nor in India. The establishment of secular and authoritarian Pahlavi rule and the introduction of codified law in the 1920s and 30s is often regarded as a sharp break with traditional jurisprudence and legal practice. The use of á¹£ulḥ/muá¹£Älaḥa shows that this is not correct, since the traditional legal definition was incorporated verbatim in the new Civil Code of modern Iran.
Of course, ârealâ settlements and âpeaceâ agreements could also be negotiated within a muá¹£Älaḥa as we saw above. A clear indication of an amicable settlement or a transfer of rights are symbolic statements of settlement price such as sweets or salutes to the prophet. Giving one sÄ«r (c. 75 gr.) of crystal sugar is a token price that can be interpreted as a symbolic âsweetenerâ for a deal that concluded negotiations. In many instances it is difficult to judge from the contract itself what is the story behind the settlement contractâa lot of guesswork is needed and without knowledge of the broader context this can be risky. Especially in the case of transactions within families and between family members, often involving women in dependent situations (widows, wives, daughters), muá¹£Älaḥa-contracts may have been merely a facade, veiling and hiding pressure. On the other hand, the presence of women in so many contracts of the late QÄjÄr period can be seen as evidence of more legal awareness and growing economic independence.42
The emergence of the muá¹£Älaḥa occurs at the same time as the growing independence of the Ê¿ulamÄ from state institutions and offices. It also goes hand in hand with the numerical growth of practising jurists (i.e. mujtahids) and therefore the explosion of legal disputes in QÄjÄr society. Especially towards the end of the nineteenth century, previous trust in the mechanisms of judicial procedure became weaker, whether state exercised justice or justice mediated and disbursed through the Ê¿ulamÄ. Both were increasingly perceived as corrupt, inefficient and unjust. The same time period also sees the first attempts to establish official state-operated secular courts and to begin state-led judicial reforms. All in all, there can be no doubt that the dominance of the muá¹£Älaḥa as a widely applicable âuniversal contractâ is both a product and a sign of larger developments in the second half of the nineteenth century.
Appendix: 2 Edited Documents
1. QabÄlaâMuá¹£Älaḥa from Sebastian Beck (1915) via ShÄ«rÄzÄ« ḤamzawÄ«âs Sayyid al-inshÄʾ-i naw-áºuhÅ«r (1909)
Persian Text
صÙرت ÙباÙÙÙا٠Ú٠شرعÛ
غرض از تØرÛر ٠تسطÛر اÛÙ Ú©Ù٠ات ÙاضØØ© اÙدÙاÙات آ٠است ک٠در بÙترÛÙ ÙÙت از اÙÙات Ù ÙرÙ٠ب٠خÛر ٠برکات Øاضر عاÙÛØضرت عاÙÛÙ Øضر شرع شرÛ٠گردÛد جÙاب ÙضاÛ٠٠آب Ù Ûرزا اب٠اÙØس٠٠ÙØ´Û ÙÙد ارج٠Ùد ٠رØÙÙ Ù Ûرزا عÙÛÙ Ø٠د در ØاÙÛ Ú©Ù Ø¬Ù Ûع اÙارÛر شرعÛÙ Ù Ù ÙÙÛ٠از اÛشا٠٠س٠Ùع Ù Ù Ø´ÙÙد بÙد دÙ٠اÙاکرا٠ÙاÙاجبار ب٠باÙØ·Ùع ÙاÙرغب٠ÙاÙاختÛار ٠صاÙØ٠صØÛØ٠شرعÛÙ ÙÙ Ùد ÙÙ Ú¯Û Ù ØªÙ Ø§Ù Û Ù Ø¬Ù ÙÚ¯Û ÛÚ© Ùطع٠باغ Ù ÙÚ©Û Ù ØªØµØ±ÙÛ Ø®Ùدرا Ú©Ù Ù Ø´ÙÙر است ب٠باغ عÙÛآباد ÙاÙع٠در Ùصر اÙدشت Ù ØدÙد ب٠ØدÙد اربع٠از ØØ¯Û Ø¨Ù Ø¨Ø§Øº جÙاب ٠ستطاب ا٠ا٠ج٠ع٠٠از ØØ¯Û Ø¨Ù Ø¨Ø§Øº ÙردÙس ٠از Ø³Ù ØªÛ Ø¨Ù Ú©ÙÚ٠باغ شارع عا٠٠ع ک٠٠ا ÛتعÙ٠بÙا از اشجار ٠اÙÙار ٠٠تعÙÙات خارج٠٠داخÙ٠از اشجار ٠صØØ§Ø±Û Ù Ø¨Ø±Ø§Ø±Û Ù ØºÛØ±Ù Ù Ø³Ù Û Ø§Ù ÙÙ Ûس٠٠ذکر ا٠ÙÙ Ûذکر Ù Ù Ø¬Ø±Û Ø§ÙÙ Ûا٠٠Ø٠اÙشرب تابع٠٠رتب٠بر آ٠از ÙÙات ٠عرÙ٠بخÛرات Ù Ù Ùا٠٠٠اÙÛات دÛÙاÙÛ [ب٠ÙÙاÙ] ب٠٠بÙغ ÙÙا٠ÙÙدا٠٠ÙبÙضا٠ÙÛ Ø§Ù٠جÙس اÙعÙد ب٠اسÙاط کاÙÙ Ø®Ûارات سÛ٠ا Ø®Ûار اÙغب٠ÙÙ٠کا٠ÙاØشا٠ب٠اÙØØ´ Ù Ùرسد اØدÛرا از طرÙÛ٠ک٠در اÛ٠٠صاÙØ٠دعÙÛ Ù Ø±Ø¬ÙØ¹Û Ù٠اÛÙد کا٠ÙÚ©ÛÙا٠ا٠ثاÙÛا٠ا٠Ùارثا٠ک٠از درج٠اعتبار ساÙØ· Ø®ÙاÙد بÙد ٠صÛغ٠٠صاÙØ٠صØÛØ٠شرعÛ٠با ج٠Ûع شراÛØ· Ø¬Ø§Ø±Û Ú¯Ø±Ø¯Ûد ٠کا٠ÙÙÙع ذاÙÚ© ÙÛ Ø´Ùر رجب اÙ٠رجب سÙÙ Û±Û³Û²Ûµâ«.â¬
English Translation
Formulary of a standard deed according to sharia law
The purpose of writing and composing these words of clear proofs is the following: In the best of times, propitious to good works and blessings, he appeared before the eminent and noble sharia court, his excellency, the repository for all virtues, MÄ«rzÄ AbÅ« al-Ḥasan munshÄ«, son of the late noble MÄ«rzÄ Ê¿AlÄ«-Muḥammad, in a state whereby he audibly and visibly fulfilled all the legal and religious conditions, without any force or coercion, but with full voluntary intent and free will, he offered in correct and sharia-conformant composition, all and everything of one piece of a garden owned by him and in his possession, which is known as the BÄgh-i Ê¿AlÄ«-ÄbÄd, situated in Qaá¹£r Aldasht, limited by boundaries on four sides, on one boundary by the garden belonging to the excellent ImÄm JumÊ¿a, on one boundary by the BÄgh-i Firdaws, and on one side by the garden alley off the main street, with all that belongs to it of trees and water canals, and whatever is part of it inside or outside, such as trees, uncultivated land and fields, etc., whether mentioned or named explicitly or not, and all water supplies and rights related to it from the qanÄt known as charitable, and property and dÄ«wanÄ« taxes, [to such and such], for such and such amount, in cash and received in the contractual session, letting fall all possible causes of annulment, be it the annulment because of fraud, and even of the worst kind, and none of the two parties that [are mentioned] in this composition shall raise a complaint or attempt a withdrawal, whether through a legal representative, a second party, or an heir, which will have nil credibility and the contractual form of a correct and sharia-conformant composition with all conditions became valid, and this took place in the month Rajab of the year 1325.
2. A combined deed with a contract of sale (mubÄyaÊ¿a) from Khorasan, secured through an additional muá¹£Älaḥa and a contract of lease (ijÄra), dated 25 JumÄda II 1156 (16.8.1743)43
Persian Text
ÙÙ
â«Û± بÙرÙخت ب٠باÛØ¹Û ÙØ§Ø²Ù Û Ø¬Ø§Ø²Ù Ù ÙاÙذ٠٠عتبر٠صØÛØ٠شرعÛÙ٠عاÙÛشأ٠رÙÛع٠کا٠سÙطاÙÙ Ø٠د بÛÚ¯ ÙÙد ٠رØÙ٠جاÙÙ Ø٠د بÛÚ¯â¬
â«Û² بعاÙÛجا٠رÙÛعجاÛگا٠شÙکت ٠عظ٠ت ٠ابÙت ٠اجÙا٠دستگا٠ا٠ا٠ÙÛØ±Ø¯Û Ø®Ø§Ù ÙرÙÙÙ ÙÙ Ú¯Û Ù ØªÙ Ø§Ù Û Ù ÙØ§Ø²Û Ø¯Ù Ø²Ùج Ù ÙÚ© Ù ÙرÙØ«Û Ø®Ùدراâ¬
â«Û³ Ú©Ù Ù Ø³Ù Û Ø§Ø³Øª ب٠Ùزک Ù ÙاÙع است در بÙÙÚ© ابÛÙرد Ù Ù Ù Øا٠٠شÙد Ù Ùدس Ù Ù ØدÙد است باÛÙ ØدÙد اربع٠ØØ¯Û Ø¢Ù ÚØ´Ù Ù ØØ¯Û Ø®Ûرآبادâ¬
â«Û´ د٠Øد دÛگر دÛÙ ÚÙزار ÙاÙع در Ù Ûا٠د٠در٠بث٠٠٠عÛ٠٠عÙÙ٠اÙÙدر ٠بÙغ ÙÙتاد تÙ٠ا٠تبرÛØ²Û ÙØ¶Û Ú©Ù Ù Ø³Ø§ÙÛ Ø§Ø² ÛÚ©Ùزار Ù ÚÙار صد عدد رÙÙ¾Û٠د٠٠ثÙاÙÙÛÙ Û ÙادرÛâ¬
â«Ûµ بÙد٠باشد ٠دعÙÛ ØºØ¨Ù ÙاØØ´ ب٠اÙØØ´ ٠باÛع٠٠زبÙرÙرا با Ùر Ú¯ÙÙÙ ØÙÛ Ù Ø¨Ùر٠٠ÙصÛØ¨Û Ú©Ù Ø¯Ø± ٠بÛع ٠زبÙر ٠تصÙر بÙد دÛد٠٠داÙست٠ب٠بÙغ Ù¾ÙجتÙ٠ا٠تبرÛØ²Û ÙضÛâ¬
â«Û¶ ٠صاÙØ٠شرعÛÙ ÙÙ Ùد ٠بعد از Ø°ÙÚ© اجار٠صØÛØ ØµØ±ÛØ Ø´Ø±Ø¹ÛÙ ÙÙ Ùد از ØاÙتØرÛر ÙغاÛت ٠دت ÙÙد سا٠کا٠٠ب٠بÙغ Ù¾ÙجتÙ٠ا٠تبرÛØ²Û ÙØ¶Û Ù Ø§Ø³Ùاط ج٠Ûع Ø®Ûارات ÙÙ Ùدâ¬
â«Û· ٠٠بÛع ٠زبÙررا از تØت ٠تصر٠خÙد اخراج ٠بتصر٠٠اÙکاÙÙ Ù Ø´ØªØ±Û Ù Ø²Ø¨Ùر Ùا گذاشت ٠٠بÙغ ٠زبÙر Ú©Ù ÙجÙ٠٠باÛع٠٠خÛار غب٠اÙÙاØØ´ ٠٠ا٠اÙ٠صاÙØÙâ¬
â«Û¸ Ú©Ù Ùشتاد تÙ٠ا٠تبرÛØ²Û ÙØ¶Û Ú©Ù Ù Ø³Ø§ÙÛ ÛÚ©Ùزار ششصد رÙÙ¾Û٠دÙÙ Ø«ÙاÙÙÛÙ Û Ø³Ú©Ù Ù Ø¨Ø§Ø±Ú©Ù ÙØ§Ø¯Ø±Û Ø¨Ùد٠باشد ت٠ا٠٠ک٠ا٠اØØ° Ù Ùبض ÙÙ Ùد ٠ضا٠٠درک Ø´Ø±Ø¹Û Ú¯Ø±Ø¯Ûدâ¬
â«Û¹ Ú©Ù ÙØ±Ú¯Ø§Ù Ú©Ø§Ø´Ù Ø´Ø±Ø¹Û Ø¨Ø¸ÙÙر برسد از عÙد٠ک٠٠ا ÛÙز٠عÙÛ٠بÛرÙ٠آ٠د ٠صÛغ٠صØÛØ٠شرعÛ٠باÙعربÛÙ ÙاÙÙارسÛ٠در ٠راتب ٠رÙÙÙ Ù ÙاÙع Ù Ø¬Ø§Ø±Û Ú¯Ø±Ø¯Ûدâ¬
â«Û±Û° ٠کا٠ذاÙÚ© ÙÛ ØªØ§Ø±ÛØ® بÛست Ù Ù¾Ùج٠شÙر Ø¬Ù Ø§Ø¯Û Ø§Ùآخر Ù Ù Ø´ÙÙر سÙÙ ÛÚ©Ùزار Ù Ûکصد Ù Ù¾Ùجا٠٠شش سÙÙ Û±Û±ÛµÛ¶â¬
â«Ù Ùر سÙطا٠٠Ø٠د بÛÚ¯â¬
â«Ø³Ø¬Ùاتâ¬
â«Ø§ اعتر٠ب٠ا زبر ÙÛ٠ب٠عرÙÛ ÙØ¯Û Øرر٠[Ù Ùر:] «â اÙÙض Ø§Ù Ø±Û Ø§ÙÛ Ø§ÙÙÙٰ٠عبد٠٠Ø٠د جعÙرâ »â¬
â«Ø¨ بس٠اÙÙ٠اÙرØ٠٠اÙرØÛÙ Ø â¦ Ø¨Ù Ø¶Ù ÙÙÙâ¦Ø Ù Ùر ÙاخÙاÙاâ¬
â«Ø¬ ذاÙکذاÙÚ© ٠اÙا شاÙد بذÙÚ© Øرر٠اÙعبد اÙاÙÙØ Ù Ùر Ùا Ø®ÙاÙاâ¬
â«Ø¯ Ø´Ùد باÙ٠ض٠Ù٠اÙ٠سطÙر اÙعبد اÙاÙÙØ [Ù Ùر:] «â â¦â »â¬
â«Ù اÙر اÛد٠اÙÙÙٰ٠تعاÙÛ Ø¨Ø¬Ù Ûع اسعد٠اÙÙÙٰ٠بعد جرÛا٠اÙبÛع اÙشرعÛØ© ÙØ¯Û ØررÙØ [Ù Ùر:] «â â¦â »â¬
â«Ù Ø٠دâ¦â¬
â«Ø² Ø´Ùد ب٠ا ÙÛÙØ Ù Ø٠د Ù ÙدÛØ [Ù Ùر:] «â â¦â »â¬
â«Ø ⦠٠Ø٠د رشÛØ¯Ø [Ù Ùر:] «â â¦â »â¬
â«Ø· خات٠Ø٠دØ[Ù Ùر:] «â â¦â »â¬
â«Û عزÛز بÛÚ¯Ø Ø¨Ø±Ø§Ø¯Ø± Ù Ø٠د تÙÛØ Ù Ùر ÙاخÙاÙاâ¬
English Translation
He
1 He sold with a binding, obliging, effective, acknowledged and legally correct sharia contract of sale (mubÄyaÊ¿a), the honourable and highranking Sulá¹Än-Muḥammad Beg, son of the late JÄn-Muḥammad Beg,
2 to the noble and elevated, repository of dignity, magnificence, grandeur and honour, ImÄmvirdÄ« KhÄn QiriqlÅ«,44 all and everything of two pieces of his own inherited landed property
3 which is named as Quzak and located in the area of AbÄ«ward from among the districts of Mashhad-i Muqaddas, and limited on four sides, one of them (the village of) Äq Chashma, one (the village of) KhayrÄbÄd,
4 and on two other sides on (the village of) Daymcha-zÄr, located in between two vales, for the clearly determined price over the amount of seventy tÅ«mÄn-i tabrÄ«zÄ« in silver coinage, equivalent to 1.400 pieces of Dumis̱qÄlnÄ«mÄ« NÄdirÄ« rupees,
5 and (furthermore) any litigation because of fraud, and be it of the most abominable type, over the mentioned contract of sale, with any kind of claim, usage or profit imaginable in the sold object, seen and understood, for the amount of five tÅ«mÄn-i tabrÄ«zÄ« in silver
6 he made a sharia-conform composition (muá¹£Älaḥa) and after that he concluded a legally correct and sharia-conform contract of lease (ijÄra), from the time of writing to the end of a period of ninety years in total, for the amount of five tÅ«mÄn-i tabrÄ«zÄ« in silver, and he excluded all options of cancellation,
7 and the aforementioned object of sale left his possession and entered the proprietary control of the mentioned buyer, and the mentioned amount total from the contract of sale, the exclusion of fraud and the settlement price
8 of together 80 tÅ«mÄn-i tabrÄ«zÄ« in silver coinage which is equivalent to 1.600 pieces of Dumis̱qÄlnÄ«mÄ« NÄdirÄ« rupees was completely and totally taken and acknowledged, and taken as sharia-conformant surety,
9 so that whenever a legal subterfuge should occur, he would be released from all obligations, and the legally correct formulary in Arabic and Persian during the recorded steps took place and became valid.
10 This took place on the date of 25 JumÄdÄ II of the year 1156.
Various seals and legal attestations:
-
a) I recognize what has been composed in it to the best of my knowledge, it has been written before me: âI entrust my affairs to God, his servant Muḥammad JaÊ¿farâ
-
b) In the name of God the Merciful, the Beneficent, I [acknowledge] its contents [â¦], [seal]
-
c) It is as it is, and I am witness to it, it has been written by the minor servant, [seal]
-
d) The written content has been witnessed, the minor servant, [seal]
-
e) I acknowledge the support of God Almighty with all the joy of God, after the sharia-conform sale has become valid, it has been written before me, [seal]
-
f) Praise [â¦]
-
g) It has been witnessed what is in it, Muḥammad Mahdī, [seal]
-
h) [â¦] Muḥammad RashÄ«d, [seal]
-
i) [seal]
-
j) ʿAzīz Beg, brother of Muḥammad Taqī, [seal]
Acknowledgements
I am very grateful to the European Research Commission and the Lawforms project which provided funding for the research presented in this article. I also thank the European Research Commission and the Lawforms project for providing funds to publish this article, and the entire issue, in Open Access format.
Bibliography
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RiżÄÊ¿Ä«, UmÄ«d. 2008. Dar-ÄmadÄ« bar asnÄd-i sharÊ¿Ä«-yi dawra-yi QÄjÄr [Introduction to Shariâa Documents from Qajar Iran]. Tokyo: ILCAA. (Studia Culturae Islamicae, 92).
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ShaftÄ«, Muḥammad BÄqir al-. 1258q/1842. KitÄb-i suʾÄl va jawÄb. TihrÄn (lithograph).
ShÄ«rÄzÄ« ḤamzawÄ«, Ê¿AlÄ« Muḥammad. 1327q/1909. Sayyid al-inshÄʾ-i naw-áºuhÅ«r. Bombay: Maá¹baÊ¿-i Fayż-rasÄn (lithograph).
SutÅ«da, ManÅ«chihr, ed. 1350sh/1971 to 1355sh/1976. Az ÄstÄrÄ tÄ IstÄrbÄd. 8 vols. TihrÄn: IntishÄrÄt-i Anjuman-i Äs̱Är-i MillÄ«.
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Werner, Christoph. 2000. What is a Mujtahid? Functions and Stratification of Tabrizi âUlama in the Early Qajar Period. Islamic Area Studies, Working Paper Series 19, Tokyo.
Werner, Christoph. 2003. Formal Aspects of Qajar Deeds of Sale. In Persian Documents, ed. Nobuaki Kondo. London: Routledge: 13-49.
Wichard, Johannes Christian. 1995. Zwischen Markt und Moschee. Wirtschaftliche Bedürfnisse und religiöse Anforderungen im frühen islamischen Vertragsrecht. Paderborn: Schöningh.
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S. Beck, Neupersische Konversations-Grammatik (Heidelberg: Groos, 1914): 441-70. S. Beck, Schlüssel zur Neupersischen Konversations-Grammatik (Heidelberg: Groos, 1915): 262-312. See the appendix for an edition and full translation of this sample document.
Ê¿A.M. ShÄ«rÄzÄ« ḤamzawÄ«, Sayyid al-inshÄʾ-i naw-áºuhÅ«r (lithograph Bombay: Faiż-rasÄn, 1327q/1909). The work has been attributed to MÄ«rzÄ Muḥammad MahdÄ« KhÄn AstarÄbÄdÄ« as the original author, with 1273q (1856-57) as date of composition. Multiple lithograph prints of this work exist, many from Tehran, see the catalogue entries of the National Library and Archives of I.R. Iran and of the Parliamentary Library of Iran. This collection, its distribution, variants and print history would deserve an independent study.
NiwishtajÄt-i sharÊ¿Ä« ki muḥtÄj ilayh Ê¿Ämma ast. The idea that the public depends on certain legal documents and formularies is interesting in itself.
Beck, Neupersische Konversations-Grammatik: 461. Beck, Schlüssel: 293-294.
See the contribution by Nobuaki Kondo in the present collection. The muá¹£Älaḥa and the bayÊ¿-i shará¹ are probably the two most characteristic document types of late QÄjÄr Shiite law.
For a previous, short discussion of these issues in the context of QÄjÄr sale contracts, see C. Werner, âFormal Aspects of Qajar Deeds of Sale.â In Persian Documents, ed. N. Kondo (London: Routledge, 2003): 42-3.
Quite representative in this regard are the document collections edited by Hashem Rajabzadeh since 1997 in his Persian Documents Series, the latest devoted to irrigation: H. Rajabzadeh, Eighty-Eight Documents on Irrigation from Qajar Iran (Tokyo: Research and Information Center for Asian Studies, 2019). A monumental older series in eight volumes that includes a large number of muá¹£Älaḥa-nÄmas in volume 7 is M. SutÅ«da (ed.), Az ÄstÄrÄ tÄ IstÄrbÄd (TihrÄn: IntishÄrÄt-i Anjuman-i Äs̱Är-i MillÄ«, 8 vols., 1350sh/1971 to 1355sh/1976).
An exception are the documents from the merchant and entrepreneur ḤÄjj M. Ḥasan AmÄ«n al-Å»arb (1837-98), edited in several volumes, as an example A. MahdawÄ« and Ī. AfshÄr, ed., Yazd dar asnÄd-i AmÄ«n al-Å»arb (TihrÄn: ṬalÄya, 1380sh/2001).
Representative is the work by Gad Gilbar, an example, with further literature, G. Gilbar, âThe Rise and Fall of the TujjÄr Councils of Representatives in Iran, 1884-85.â Journal of the Economic and Social History of the Orient 51/4 (2008): 639-74.
Z. Bhalloo, âJudging the Judge: Judicial Competence in 19th Century Iran.â Bulletin dâétudes orientales 63 (2014): 275-93.
C. Werner, What is a Mujtahid? Functions and Stratification of Tabrizi âUlama in the Early Qajar Period. (Islamic Area Studies, Working Paper Series 19, Tokyo 2000). Most recent and comprehensive N. Kondo, Islamic Law and Society in Iran: A Social History of Qajar Tehran (London: Routledge, 2017).
On Koranic references and á¹£ulḥ as compared to the judicial concepts of qaá¸Ä (adjudication) and taḥkÄ«m (arbitration), A. Othman, ââAnd Amicable Settlement Is Bestâ: á¹¢ulḥ and Dispute Resolution in Islamic Law.â Arab Law Quarterly 21/1 (2007): 64-99.
Following J. Wichard, Zwischen Markt und Moschee (Paderborn: Schöningh, 1995): 237. A concise discussion of âá¹¢ulḥ in Shiite legal theoryâ see below, p. 22ff. A more detailed analysis of the concept of á¹£ulḥ in Shiite jurisprudence will be the subject of a separate study.
The understanding of á¹£ulḥ as a peaceful approach in the early Islamic conquests adds to the underlying semantic context, on this aspect see A. Noth, âZum Verhältnis von kalifaler Zentralgewalt und Provinzen in umayyadischer Zeit: Die âá¹¢ulḥâ-âÊ¿Anwaâ-Traditionen für Ãgypten und den Iraq.â Die Welt des Islams 14 (1973): 150-62.
P. Sartori, âThe Evolution of Third-Party Mediation in SharÄ«Ê¿a Courts in 19th- and early 20th-century Central Asia.â Journal of the Economic and Social History of the Orient 54/3: 313. I. TamdoÄan, âSulh and the 18th Century Ottoman Courts of Ãsküdar and Adana.â Islamic Law and Society 15/1 (2008): 55-83. L. Peirce, Morality Tales: Law and Gender in the Ottoman Court of Aintab, (Berkeley: University of California Press, 2003): 120, 185-6.
P. Sartori, Visions of Justice (Leiden: Brill, 2017): 40, 57, in particular 214.
C. Hamilton, The Hedaya: Commentary on the Islamic Laws (New Delhi: Kitab Bhavan, 1994): III, 440-51.
A. Othman, âAnd Amicable Settlement Is Bestâ: 82-3. For the MalikÄ« school see D. Santillana, Istituzioni di diritto musulmano malichita: con riguardo anche al sistema sciafiita (Roma: Istituto per lâOriente, vol. 2., 1938): 209-20, who translates á¹£ulḥ as âtransazioneâ.
Measurements of weight: 1 man is about 2.9 kg (see below), 1 sīr is 1/40 man, i.e. ca. 74 gr.
H. Rajabzade and K. Haneda, ed., Fifty Five Persian Documents of Qajar Period (Tokyo: ILCAA, 1997): 126-7. Rajabzade provides the text edition with facsimile, the paraphrasing translation is mine. Places and individuals mentioned are of no concern in the present context.
M. áºabīḥī and M. SutÅ«da, Az ÄstÄrÄ tÄ IstÄrbÄd. Vol. 7: AsnÄd-i tÄrÄ«khÄ«-yi GurgÄn (TihrÄn: IntishÄrÄt-i Anjuman-i Äs̱Är-i MillÄ«, 1354sh/1975): 70-1. Again, the paraphrasing translation is mine; the volume includes the edited text and a short summary.
More on this option below.
F. JahÄnpÅ«r, âBarrasÄ«-yi chand iá¹£á¹ilÄḥ dar muá¹£Älaḥa-nÄma-hÄ.â GanjÄ«na-i AsnÄd 11/41-2 (1380sh/2001): 79-83.
More on the use of á¹£ulḥ/muá¹£Älaḥa contracts to transfer property and avoid inheritance laws below in the conclusion.
U. RiżÄÊ¿Ä«, Dar-ÄmadÄ« bar asnÄd-i sharÊ¿Ä«-yi dawra-yi QÄjÄr (Tokyo: ILCAA, 2008): 150-63, with further references.
See note 7 above.
Kondo, Islamic Law and Society in Iran: 43. As courts and registers were considered private collections, few have survived and research on them is only beginning.
On muá¹£Älaḥa as settlement see Kondo, Islamic Law and Society in Iran: 52-3.
N. Kondo, Islamic Law and Society in Iran: A Social History of Qajar Tehran. London: Routledge, 2013): 75 (table 5.1). The use of muá¹£Älaḥa was less frequent for conditional sales and leases (i.e. credit loans): 78 (table 5.5) and 81 (table 5.9). He suggests a gradual shift from mubÄyaÊ¿a to muá¹£Älaḥa that occurred first with normal sales before being extended to conditional sales.
M. b. al-Ḥasan Ê¿AlÄ« al-ṬūsÄ«, Al-MabsÅ«á¹ fÄ« fiqh al-imÄmÄ«ya, ed. M. TaqÄ« al-KashfÄ« (TihrÄn: 1350sh/1970), vol. 2: 288-311.
P. Owsia, Formation of Contract (London: Graham & Trotman, 1994): 360-1.
ḤillÄ« al-Muḥaqqiq al-Awwal, Tarjuma-i fÄrsÄ«-i SharÄyiÊ¿ al-IslÄm, trans. AbÅ« al-QÄsim b. Aḥmad YazdÄ«, ed. M. TaqÄ« DÄnish-PazhÅ«h (TihrÄn: IntishÄrÄt-i DanishgÄh-i TihrÄn 1358sh/1997), vol. 1: 267-54.
M. Ḥ. NajafÄ« (á¹¢aḥib-i JawÄhir), JawÄhir al-KalÄm fÄ« sharḥ SharÄyiÊ¿ al-IslÄm: Volume 26: KitÄb al-á¹£ulḥ (lithograph n.p. 1274q/1858).
BahÄʾ al-DÄ«n Muḥammad Ê¿ÄmilÄ«. JÄmiÊ¿-i Ê¿AbbÄsÄ«: risÄla-yi Ê¿amalÄ«ya, bÄ á¸¥avÄshÄ«-yi hasht faqÄ«h-i Ê¿ÄlÄ«maqÄm, Qum: Daftar-i intishÄrÄt-i IslÄmÄ«, 1388sh/2009): 226-7. Following Arabic grammatical usage, the legal wordings in Persian also use the preterite forms.
M.B. al-ShaftÄ«, KitÄb-i suʾÄl va jawÄb (TihrÄn 1258q/1842): 297 (KitÄb al-á¹£ulḥ: 286-303). These works might be compared to Sunni fatwa collections, although one has to be careful with the analogies, as the shiite understanding of a fatwa and the institutional background of shiite juristic practice is quite different.
On ShaftÄ« see I. Schneider, âMuḥammad BÄqir Å aftÄ« (1180-1260/1766-1844) und die Isfahaner Gerichtsbarkeitâ, Der Islam 79/2 (2002): 240-73.
R. KhumainÄ«, RisÄla-i taużīḥ al-masÄʾil (TihrÄn: IrshÄd-i IslÄmÄ«, 1371sh/1992): 291 (Q2163).
The latter is indeed a quite confusing construction, but the summary of the sums received and acknowledged leaves no doubt that the âcompositionâ and the âleaseâ are actually bound together.
More on this and litigations in the excellent dissertation by Z. Bhalloo, âThe Qajar Jurist and His Ruling: A Study of Judicial Practice in Nineteenth Century Iranâ (Oxford: Wadham College 2013).
A.K.S. Lambton, Landlord and Peasant in Persia (London: Oxford Univ. Press, 1953): 200. I quote her translation of the Civil Code (QÄnÅ«n-i MadanÄ«) in full, as it remains valid under the Islamic Republic with only minimal variations. Note her rendering of the term á¹£ulḥ as âconciliationâ instead of settlement or composition: ââConciliation is possible either in order to settle an existing dispute or to prevent a potential dispute concerning some transaction or other or which might arise over something elseâ (art. 752). For the âconciliationâ to be valid both parties must be competent to undertake the transaction and to take possession of the subject of the âconciliationâ (art. 753). A âconciliationâ without recompense is valid (art. 757). The right of pre-emption is not established in the case of âconciliationâ (art. 759). It is a binding agreement (art. 760), but âconciliationâ transacted under duress is not valid (ar. 763).â
Lambton, Landlord and Peasant in Persia: 200.
Another way to get an idea on the wide use of muá¹£Älaḥa contracts by women (and including women) is to browse the collections of Harvard Universityâs Digital Archive Womenâs Worlds in Qajar Iran at
Private Collection of Kioumars Ghereghlou, here
Again, the historical background to this document can not be explored in detail. AbÄ«ward lies to the north of Mashhad, close to the present border of Turkmenistan; on ImÄmvirdÄ« KhÄn see L. Lockhart, Nadir Shah: A critical study based mainly upon contemporary sources (London: Luzac, 1938): 116, 215.
