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Thursday, July 26, 2012

Why is the legacy mentioned first in the aayah, “after payment of legacies that you mayhave bequeathed or debts” [al-Nisa’ 4:12]?

Why is the word wasiyah (legacy, will, bequest) mentioned in the
Qur'an before the word dayn (debt?) when we know that the debt must be
paid off before the legacy is given?
Praise be to Allaah.
Al-Qurtubi (may Allaah have mercy on him) said: "What is the reason
why the legacy is mentioned before the debt, when thedebt takes
precedence according to scholarly consensus, i.e., the debts of the
deceased must be paid off from his estate before his will is executed…
this may be answered in five ways:
1 – What is meant is that these two issues take precedence over the
issue of inheritance, and the order in which they are mentioned is not
indicative of which one is more important. Hence the bequest was
mentioned first.
2 – Because the legacy is less binding than debt, it is mentioned
first to showthat it is nevertheless important, as when Allaahsays
(interpretation of themeaning):
"What sort of Book is this that leaves neither a smallthing nor a big thing…"
[al-Kahf 18:49]
…
4 – The legacy is mentioned first because itis the share of the poor
and needy, and the debt is mentioned second because it is the share of
the lender who can seek itwith force and who has a strong argument to
support his case.
5 – Because the legacy is something that is initiated by the person,
it is mentioned first, whereas the debt is something that is well
established and clear whether he mentioned it or not.
See al-Jaami' li Ahkaam al-Qur'aan by al-Qurtubi, vol. 5, p. 74.
Some scholars added two extra points:
"The legacy is mentioned first because the legacy is an act of
kindness and upholding family ties, unlike the debt which usually
results from a kindof neglect. So the phrase starts with the legacy
because it is of greater virtue.
And it was said that the legacy is mentioned first because it is
something that is given for nothing in return, whereas the debt is
given in return for something. So payment ofthe legacy is harder for
the heirs than payment ofthe debt, and paying the legacy may be
thought of as a form of waste, unlike the debt which the heir will pay
with condifence."
See al-Tahqeeqaat al-Mardiyaah fi'l-Mabaahith al-Fardiyyah by Shaykh
Saalih al-Fawzaan, p. 27.

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