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Introduction
Validity of Istishab
Types of Istishab
There are 4 types of Istishab namely:
ISTISHAB AL ADAM AL-ASLI (presumption of original absent)
Originally not in existence Fact/rule which had not existed in the
past is presumed to be non-existent until the contrary is proved. A
child is presumed to remain a child until there is a change (attaining
majority)
Example: An uneducated person is presumed to remain uneducated
until he attains educational qualifications.
Example: A trader is presumed to gain no profit unless proven
otherwise (A who is a trading partner claims that he has no profit).
The presumption of absence of profit will be in As favour unless B
can prove otherwise.
Example: Defect in things sold. The presumption is originally there is
no defect in the hands of the seller.
ISTISHAB AL-WUJUD AL-ASLI (presumption of original present)
The presence of that which is indicated by law or reason is taken for
granted.
Example: A is known to be indebted to B. Until A can prove that he
has paid the debt to B or was acquitted of the debt, the presumption
is that A remains indebted to B as long as Bs loan to A is proven in
the first place.
Example: A husband is liable to pay his wife the dower (mahr) by
virtue of the existence of a valid marriage contract. Istishab
presumes the presence of liability or a right until an indication to the
contrary is found.
ISTISHAB AL-HUKM (continuity of rules and enactment)
It is an istishab which presumes the continuity of the general rules
and principles of the law. The permissive and prohibitory are
presumed to continue until the contrary is proved.
Nelfi Amiera Mizan
Multimedia University