Testimony of Two Just Witnesses for the Final Will and Testament

In the Name of Allah, The Most Gracious, Most Merciful.

O you who believe! When death approaches any of you, and you make a bequest, then take the testimony of two just men of your own folk or two others from outside, if you are travelling through the land and the calamity of death befalls you. Detain them both after As-Salat (the prayer), (then) if you are in doubt (about their truthfulness), let them both swear by Allah (saying): "We wish not for any worldly gain in this, even though he (the beneficiary) be our near relative. We shall not hide Testimony of Allah, for then indeed we should be of the sinful."
If then it gets known that these two had been guilty of sin, let two others stand forth in their places, nearest in kin from among those who claim a lawful right. Let them swear by Allah (saying): "We affirm that our testimony is truer than that of both of them, and that we have not trespassed (the truth), for then indeed we should be of the wrong-doers."
That should make it closer (to the fact) that their testimony would be in its true nature and shape (and thus accepted), or else they would fear that (other) oaths would be admitted after their oaths. And fear Allah and listen ( with obedience to Him). And Allah guides not the people who are Al-Fasiqun (the rebellious and disobedient). (Qur'an 5: 106-108)

This honorable Ayah contains a glorious ruling from Allah. Allah's statement,

(O you who believe! When death approaches any of you, and you make a bequest, then take the testimony of two...) meaning that there should be two witnesses in such cases,

(just men...) thus, describing them as just,

(of your own folk) Muslims.

(or two others from outside) non-Muslims, meaning the People of the Book, according to Ibn `Abbas as Ibn Abi Hatim recorded. Allah said next,

(if you are traveling through the land) on a journey,

(and the calamity of death befalls you.) These are two conditions that permit using non-Muslims from among the Dhimmis for witnesses when there are no Muslims present: When one is traveling and needs to write a will, as Sharih Al-Qadi said. Ibn Jarir recorded that Sharih said, "The witness of the Jews and Christians is not allowed except while traveling, and even then only to witness the dictation of the will.'' Allah's statement,

(Detain them both after the Salah (the prayer),) refers to the `Asr prayer, according to Al-`Awfi who reported it from Ibn `Abbas. This is the same explanation reported from Sa`id bin Jubayr, Ibrahim An-Nakha`i, Qatadah, `Ikrimah and Muhammad bin Sirin. As for Az-Zuhri, he said that they are detained after Muslim prayer (i.e., in congregation). Therefore, these two witnesses will be detained after a congregational prayer,

(let them both swear by Allah if you are in doubt.) meaning, if you are in doubt that they might have committed treachery or theft, then they should swear by Allah,

(We wish not in this) in our vows, according to Muqatil bin Hayyan,

(for any worldly gain) of this soon to end life,

(even though he be our near relative.) meaning, if the beneficiary be our near relative, we will still not compromise on the truth.

(We shall not hide the testimony of Allah,) thus stating that the testimony is Allah's, as a way of respecting it and valuing its significance,

(for then indeed we should be of the sinful.) if we distort the testimony, change, alter or hide it entirely. Allah said next,

(If it then becomes known that these two had been guilty of sin...) if the two witnesses were found to have cheated or stolen from the money that the will is being written about,

(let two others stand forth in their places, nearest in kin from among those who claim a lawful right.) This Ayah indicates that if the two witnesses were found to have committed treachery, then two of the nearest rightful inheritors should stand for witness in their place,

(Let them swear by Allah (saying): "We affirm that our testimony is truer than that of both of them...'') Meaning, our testimony that they have cheated is more truthful than the testimony that they have offered,

(and that we have not trespassed (the truth),) when we accused them of treachery,

(for then indeed we should be of the wrongdoers.) if we had lied about them. This is the oath of the heirs, and preference is to be given to their saying. Just as in the case with the oath of relative of a murdered person if he attempts to tarnish the case of the murdered person. So his family takes an oath in defense of his honor. This is discussed in the studies of the oaths in the books of Ahkam. Allah's statement,

(That should make it closer (to the fact) that their testimony would be in its true nature and shape (and thus accepted),) means, the ruling requiring the two Dhimmi witnesses to swear, if there is a doubt that they were not truthful, might compel them to admit to the testimony in its true form. Allah's statement,

(or else they would fear that (other) oaths would be admitted after their oaths.) means, requiring them to swear by Allah might encourage them to admit to the true testimony because they respect swearing by Allah and they glorify and revere Him. They also fear exposure if the heirs of the deceased are required to swear instead of them. In this case, the heirs would swear and earn the rightful inheritance that the two witnesses failed to declare. This is why Allah said,

(or else they would fear that (other) oaths would be admitted after their oaths.), then,

(And have Taqwa of Allah) in all of your affairs,

(and listen.) and obey,

(And Allah guides not the rebellious people.) who do not obey Him or follow His Law.

Unintentional Oaths and Expiation for Breaking the Oaths

In the Name of Allah, the Most Beneficent, the Most Merciful.

"Allah will not punish you for what is uninentional in your oaths, but He will punish you for your deliberate oaths; for its expiation (a deliberate oath) feed ten Masakin (poor persons), on a scale of the average of that with which you feed your own families; or clothe them; or manumit a slave. But whosoever cannot afford (that), then he should fast for three days. That is the expiation for the oaths when you have sworn . And protect your oaths (i.e. do not swear much) . Thus Allah make clear to you His Ayat (proofs, evidences, verses, lessons, signs, revelations, etc.) that you may be grateful." ( Qur'an 5 : 89)

Mentioned the subject of unintentional oaths was made in Surat Al-Baqarah, all praise and thanks are due to Allah, and so there is no need to repeat it here. Also mentioned was that the Laghw in oaths refers to one's saying, "No by Allah,'' or, "Yes, by Allah,'' unintentionally.

This as some people had taken an oath prohibiting for themselves the things which He had permitted, Allah laid down this injunction regarding oaths made inadvertently. The injunction makes it unnecessary to feel bound by the terms of inadvertent oaths, and for which one will not be reproached by Allah. And if a person had deliberately made an oath which entails sin he should not abide by his oath and should expiate it.

To be mindful of one's oaths has several meanings. First, one should make proper use of oaths and should not employ them either frivolously or sinfully. Second, when a person takes an oath, he should take care not to forget it lest he be led to break it. Third, when a man deliberately takes an oath regarding something sound in itself he should pay the penalty if he happens to violate it.

Allah said,

(but He will punish you for your deliberate oaths.) in reference to the oaths that you intend in your hearts,

(for its expiation (a deliberate oath) feed ten poor,), who are needy, not able to find necessities of the life. Allah's statement,

(on a scale of the Awsat of that with which you feed your own families;) means, "On the average scale of what you feed your families,'' according to Ibn `Abbas, Sa`id bin Jubayr and `Ikrimah. `Ata' Al-Khurasani commented on the Ayah, "From the best of what you feed your families''. Allah's statement,

(or clothe them,) refers to clothing each of the ten persons with what is suitable to pray in, whether the poor person was male or female. Allah knows best. Al-`Awfi said that Ibn `Abbas said that the Ayah means a robe or garment for each poor person (of the ten). Mujahid also said that the least of clothing, referred to in the Ayah, is a garment, and the most is whatever you wish. Al-Hasan, Abu Ja`far Al-Baqir, `Ata', Tawus, Ibrahim An-Nakha`i, Hammad bin Abi Sulayman and Abu Malik said that it means (giving each of the ten poor persons) a garment each. Allah's statement,

(or free a slave) refers to freeing a believing slave. In the Muwatta' of Malik, the Musnad of Ash-Shafi`i and the Sahih of Muslim, a lengthy Hadith was recorded that `Umar bin Al-Hakam As-Sulami said that he once had to free a slave (as atonement) and he brought a black slave girl before the Messenger of Allah , who asked her;

(Where is Allah) She said, "Above the heavens.'' He said,

(Who am I) She said, "The Messenger of Allah.'' He said,

(Free her, for she is a believer.) There are three types of expiation for breaking deliberate oaths, and whichever one chooses, it will suffice, according to the consensus (of the scholars). Allah mentioned the easiest, then the more difficult options, since feeding is easier than giving away clothes, and giving away clothes is easier than freeing a slave. If one is unable to fulfill any of these options, then he fasts for three days for expiation, just as Allah said,

(But whosoever cannot afford (that), then he should fast for three days.) Ubayy bin Ka`b and Ibn Mas`ud and his students read this Ayah as follows, "Then he should fast three consecutive days.'' Even if this statement was not narrated to us as a part of the Qur'an through Mutawatir narration, it would still be an explanation of the Qur'an by the Companions that has the ruling of being related from the Prophet . Allah's statement,

(That is the expiation for the oaths when you have sworn.) (5:89) means, this is the legal way to atone for deliberate oaths,

(And protect your oaths.) Do not leave your broken oaths without paying the expiation for them, according to the meaning given by Ibn Jarir.

(Thus Allah makes clear to you His Ayat) and explains them to you,

(that you may be grateful.)