DEC 2018

QUESTION 3 b) Identify and briefly describe the maxim that is derived from the
following verses of the Holy Quran or Sunnah:
iii. “Evidence [should be provided] by the plaintiff while the oath is for the
one who denies [the claim]” (al-Bayhaqi, al Sunan al-Kubra 8: 123;
hadith no 16222)

Answer:
This maxim is referring to the maxim 11 “Freedom from liability is the pre-
existing and therefore prevailing state”. This maxim is another corollary of
the major maxim “Certainty is not overcome by doubt”. Some of the jurist
consider it an independent maxim due to its wide application in many
juristic cases.
This maxim constitutes the status of all persons regarding their relations
with others until it is proven that some event has changed the original status.
For example, A person is suspected of committing robbery, but there is no
proof that he did so. In this case, the Shariah consider him innocent unless
there is an evidence that proof that he committing it. In this maxim, the
original status of that person is suspected of committing robbery, but it will
be changed when it’s proven that he committing it.

QUESTION 2 d) List four (4) maxim that use presumptions in making decisions due
to the absence of proof or evidence.

Answer:
i) First maxim that uses presumptions in making decision is “no legal
consideration is given to conjecture that is obviously tainted by error”.
This maxim define as if the evidence upon which earlier zann was
formed is discover to be incorrect or overridden by stronger evidence,
the earlier zann must be withdrawn and no further consideration should
be given. When there is something or any judgement that certain but
then it tainted by error, it’s become conjecture or zann. So no legal
consideration takes place.
In example, if a person performs prayer, he believes his cloth is clean.
But then he becomes certain that his cloth is not clean. That means the
first fact is he certain he cloth is clean, but later, he become certain his
cloth not clean. Means the first fact is tainted by error, it’s become
conjecture, so no legal consideration. In this case, he needs to repeat his
prayer.
QUESTION 4 b) Identify the correct maxim that solve the following disputes and
provide justification.
ii- A wife alleges that her spouse has divorced her, but the husband
demies it. And there is no strong evidence to support the wife’s claim.

Answer:
The correct maxim used is the basic rule is that a thing remains in its
original state. In this case, the state before they were known before disputes
occur is marriage, so the Shariah’s accept the husband’s claim as to the
continuance of their marital status while her claim is uncertain due to the
absence of evidence.
JUN 2018
QUESTION 1 a) Identify and briefly describe the maxim that is derived from the
following verses of the Holy Quran or Sunnah:
iii. “Evidence [should be provided] by the plaintiff while the oath is for the
one who denies [the claim]” (al-Bayhaqi, al Sunan al-Kubra 8: 123;
hadith no 16222)

Answer:
This maxim is referring to the maxim 11 “Freedom from liability is the pre-
existing and therefore prevailing state”. This maxim is another corollary of
the major maxim “Certainty is not overcome by doubt”. Some of the jurist
consider it an independent maxim due to its wide application in many
juristic cases.
This maxim constitutes the status of all persons regarding their relations
with others until it is proven that some event has changed the original status.
For example, A person is suspected of committing robbery, but there is no
proof that he did so. In this case, the Shariah consider him innocent unless
there is an evidence that proof that he committing it. In this maxim, the
original status of that person is suspected of committing robbery, but it will
be changed when it’s proven that he committing it.

QUESTION 3 a) Corollary maxim: ‘the basic rule is that a thing shall remain as it
was’. Explain briefly the major maxim that is refers to with an
example.

Answer:
The major maxim for this corollary maxim is certainty cannot be overcome
by a doubt. Which means that fact establish with certainty remains so until
another fact established with certainty displaces it. Example for this maxim
is, a person which has gone missing for a long time. In this case, the
relatives cannot inherit the wealth as the person still be assumed as alive
unless the death of the person is established. This is because, the life of the
person is certain, while the death of the person is a doubt.
JAN 2018
QUESTION 2 b) Identify and explain 2 maxims that have a direct relationship with
the principle of istishab in usul fiqh.

Answer:
i. The first maxim is maxim 12 which is the basic rule is that a thing in
remains in its original states. This maxim means that a thing is
presumed to remain in its original state unless there is proof to the
contrary. All Shariah ruling established in the past remains unchanged
to the present in the absence of other Shariah evidence that supersedes
the past ruling. Example: a person who is covered in takaful life
insurance, went missing. His relatives cannot claim his benefits until his
death is established. This is because what is certain is he is alive so he
is presumed to be alive unless there is evidence that prove contrary.
ii. The second maxim is maxim 11 which is freedom from liability is the
pre-existing and therefore prevailing state. This maxim refer to the
states in which a person’s freedom from any liability. Example: A
person is suspected to do robbery but there is no evidence that he did it.
In this case, Shariah’s ruling consider him as innocent because all
people are free from any sin and in order to charged the person must
have a concrete evidence.

c) Identify and explain four (4) maxims that guide us in making

decision based on presumptions due to the lack of evidence and proof.

Answer:
i) First maxim that uses presumptions in making decision is “no legal
consideration is given to conjecture that is obviously tainted by error”.
This maxim define as if the evidence upon which earlier zann was
formed is discover to be incorrect or overridden by stronger evidence,
the earlier zann must be withdrawn and no further consideration should
be given.
For, example, if a person performs a prayer, he believes his cloth is
clean. But then he becomes certain that his cloth is not clean. At the
first fact is he certain his cloth is clean, but later, first fact is tainted by
evidence or proof which he become certain his cloth not clean. It’s
become conjecture or zann, so no legal consideration should be taken.
In this case, he needs to repeat his prayer. When there is something or
any judgement that certain but then it tainted by evidence or proof that
error, it’s become conjecture or zann. So no legal consideration should
taken place.

QUESTION 5 i) After performing his zohor prayer, Ahmad later discovered that
his sarong had been tainted with blood. He was certain that it was
there before he began praying.

Answer
This maxim is referring to maxim “no legal consideration is given to
conjecture that is obviously tainted by error”. This maxim define as if the
evidence upon which earlier zann was formed is discover to be incorrect or
overridden by stronger evidence, the earlier zann must be withdrawn and no
further consideration should be given.
The first fact, Ahmad performing his zohor prayer, but then he discovered
that his sarong had been tainted with blood and he was certain that it was
there before he began praying. Means the first fact is tainted by error, it’s
become conjecture, so no legal consideration should be taken at placed. In
this case, he needs to repeat his prayer.
When there is something or any judgement that certain but then it is tainted
by error, it’s become conjecture or zann. So no legal consideration takes
place.

i) Ahmad had paid his zakat direct to the recipients that he believed
were entitled to received but later realized that they were non-
eligible recipient.

This maxim is referring to maxim “no legal consideration is given to

conjecture that is obviously tainted by error”. This maxim define as if the
evidence upon which earlier zann was formed is discover to be incorrect or
overridden by stronger evidence, the earlier zann must be withdrawn and no
further consideration should be given.
At first fact, Ahmad believed he had paid his zakat direct to the recipients
that entitled to received it, later he realized that they were non-eligible
recipient of zakat. The later fact is become evidence to remove the first fact
or certainty, so the certainty become zann, because it tainted by error, which
is they are non-eligible recipient of zakat. So it cannot take into
consideration. The legal effect is Ahmad has option to repay his zakat using
other money or retrieve the money paid and then distribute it to deserving
recipients.
JULY 2017
QUESTION 4 d) List down 3 maxim that help us to decide and solve disputes among
contracting parties especially when there is lack of concrete evidence
and proof to support claim.

Answer:
First maxim that uses presumptions in making decision is “no legal
consideration is given to conjecture that is obviously tainted by error”. This
maxim define as if the evidence upon which earlier zann was formed is
discover to be incorrect or overridden by stronger evidence, the earlier zann
must be withdrawn and no further consideration should be given.
The second maxim is maxim 12 which is the basic rule is that a thing in
remains in its original states. This maxim means that a thing is presumed to
remain in its original state unless there is proof to the contrary.
The second maxim is maxim 11 which is freedom from liability is the pre-
existing and therefore prevailing state. This maxim refer to the states in
which a person’s freedom from any liability.