Can an executor sell the family home?

Valid, and treated as a sale of his share. The Hanafi treatment is by far the most developed: Ibn ‘Abidin gives takharuj its own chapter and defines it as the heirs settling to remove one of their number from the inheritance for a known sum. Because the transaction is corrected as a sale, the withdrawing heir may take more or less than his entitlement, and — uniquely among the four — he need not know what his share is worth, since what he is selling needs no delivery and the uncertainty cannot generate a dispute. Their authority for that is the settlement ‘Uthman approved between the widow Tumadir and the other heirs of ‘Abd al-Rahman b. ‘Awf. Two hard limits: if the estate contains gold and silver as well as goods and they settle him on one of the two currencies, the payment must EXCEED his share of that same currency or the contract is void for riba; and where a creditor is claiming a debt against the deceased, al-Bazzaziyya holds the takharuj simply does not take effect, because the law puts the debt on all the heirs.

Sources: al-Mawsu’a al-Fiqhiyya, “Takharuj” sec. 11 — the Hanafi forms: where the estate is land or goods and the heirs pay the withdrawing heir money, “jaza al-takharuju sawa’un akana ma a’tawhu aqalla min hissatihi am akthar; li-annahu amkana tashihuhu bay’an”, and the size of his share need not be known because the thing sold needs no delivery (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Takharuj” sec. 11(d) — the Hanafi riba limit: where the estate is gold, silver AND goods or land and they settle him on one of the two currencies, “fa-la yajuzu al-sulh, illa an yakuna ma u’tiya lahu akthara min hissatihi min dhalika al-jins”; if it equals or falls short of his share of that genus the settlement is void for riba (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Takharuj” secs. 7–9 — “amma ‘inda al-Hanafiyya fa-la yushtaratu an takuna a’yanu al-tarikati ma’lumatan fima la yahtaju ila qabd”, the proof being the athar of ‘Uthman in the takharuj of Tumadir; and, for the Hanafis and Hanbalis, an unknown consideration is tolerated where it needs no delivery and cannot be ascertained (Ministry of Awqaf and Islamic Affairs, Kuwait) · Qurrat ‘Uyun al-Akhyar (Takmilat Radd al-Muhtar), Fasl fi’l-Takharuj — “huwa ay shar‘an: an yastalih’a al-warathatu ‘ala ikhraji ba’dihim min al-mirathi bi-malin ma’lum” (Muhammad ‘Ala’ al-Din b. ‘Abidin (d. 1306 AH)) · Qurrat ‘Uyun al-Akhyar, Fasl fi’l-Takharuj — “wa’lam anna sihhata al-sulhi ‘ala al-wajhi al-madhkuri thabatat bi’l-athar, wa huwa anna Tumadira imra’ata ‘Abd al-Rahman b. ‘Awf salahaha warathatuhu ‘an rub‘i thumniha”; and the Hanafi requirement that he know the size of his share of a ribawi genus, on pain of riba (Muhammad ‘Ala’ al-Din b. ‘Abidin (d. 1306 AH)) · Qurrat ‘Uyun al-Akhyar, Fasl fi’l-Takharuj — quoting al-Bazzaziyya: “dhakara Shamsu’l-Islam anna al-takharuja la yasihhu in kana ‘ala al-mayyiti daynun: ay yatlubuhu rabbu al-dayn, li-anna hukma al-shar‘i an yakuna al-daynu ‘ala jami‘i al-waratha”; and the invalidity of assigning a debt owed to the estate to someone other than the debtor (Muhammad ‘Ala’ al-Din b. ‘Abidin (d. 1306 AH)) — the Mawsu’a’s Hanafi section, corroborated at each point from Ibn ‘Abidin’s own chapter on takharuj.

Valid, but the source of the payment decides it. The Malikis divide the question in two. Where the withdrawing heir is paid out of the estate, a settlement in the estate’s own goods is good without qualification, and a settlement in the estate’s gold or silver is good up to his share of that metal, or over it by at most a single dinar, provided the whole of that metal is physically present. Where he is paid from the other heirs’ own property the rules tighten sharply: paying him in gold or silver that is not the estate’s is not permitted at all, whether the sum is large or small, because it is then gold-and-silver-and-goods sold for gold or silver — riba al-fadl, and riba al-nasa’ on top if any of the estate is out of sight. (If the estate holds only ONE of the two metals alongside goods, they do allow a payment in metal from outside, so long as sale and currency-exchange do not combine in more than a single dinar.) Paying him in goods from outside is allowed only if the whole estate is known to both sides and present, the settlement rests on an acknowledgement rather than a denial, and any debtor of the estate acknowledges the debt, attends, and is legally competent.

Sources: al-Mawsu’a al-Fiqhiyya, “Takharuj” sec. 12 — the Maliki forms where the consideration comes OUT OF the estate: gold up to her share of the estate’s gold or less, or exceeding it by at most one dinar, on condition that the whole of the genus taken from is present; “wa idha sulihat bi-‘aradin min ‘urudi al-tarikati jaza al-sulhu mutlaqan” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Takharuj” sec. 13 — the Maliki forms where the consideration comes from OUTSIDE the estate: settling her with gold or silver that is not the estate’s “fa-la yajuzu hadha al-sulh, qalla ma akhadhathu ‘an nasibiha aw kathur” (riba al-fadl, and riba al-nasa’ if any of the estate is absent); settling her with goods from outside is allowed only if the whole estate is known to the parties and present, the sulh is on an acknowledgement, and any debtor acknowledges the debt, attends, and is legally competent (mukallaf) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Takharuj” sec. 7 — first general condition: the estate must be KNOWN, “idh al-takharuju fi’l-ghalibi bay’un fi surati sulh, wa bay’u al-majhuli la yajuz”; where knowledge is impossible sulh over the unknown is allowed — so for the Malikis, the Shafi’is and Ahmad, while “al-mashhuru ‘inda al-Hanabila jawazu al-sulhi ‘an al-majhuli mutlaqan” (Ministry of Awqaf and Islamic Affairs, Kuwait) — Mawsu’a §§12–13, footnoted to al-Dasuqi, al-Sharh al-Saghir, Minah al-Jalil, al-Mawwaq, al-Kharshi and al-Mudawwana.

Valid, and classified by whether anyone is denying anything. The Mawsu’a records no detailed set of takharuj forms for this school; it works instead from the Shafi’i law of sulh. Where the settlement follows an acknowledgement and the payment is something other than the thing settled over, it is a sale and carries the whole of the law of sale — exchange in the session where both sides share a riba cause, equality where the genus is ribawi. Where the withdrawing heir simply takes part of the very thing he was entitled to, it is a gift of the rest, with the law of gifts. A settlement made over a denial is void in this school as a general rule — but they carve out an exception for heirs settling among themselves, out of necessity, on the express condition that what the withdrawing heir receives comes out of the estate itself and not from outside it, equal or unequal making no difference. On the quantum they are strict: the estate must be ascertainable, and sulh over the unknown is permitted only where knowledge is genuinely out of reach.

Sources: al-Mawsu’a al-Fiqhiyya, “Takharuj” secs. 14–15 — madhhab al-Shafi’iyya: settlement on an acknowledgement with a consideration other than the thing itself “kana bay’an tathbutu fihi ahkamu al-bay’”, settlement on part of the thing itself is a gift of the rest; settlement over a DENIAL is void with them, “lakinnahum yastathnuna min butlani al-sulhi ‘ala al-inkari sulha al-warathati fima baynahum li’l-darura”, on condition that what is given comes from the estate itself and not from outside it. Sec. 15, madhhab al-Hanabila: “lam yadhkur al-Hanabilatu suwaran li’l-takharuj, wa huwa yajri ‘ala qawa’idi al-sulhi al-‘amma” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Takharuj” sec. 7 — first general condition: the estate must be KNOWN, “idh al-takharuju fi’l-ghalibi bay’un fi surati sulh, wa bay’u al-majhuli la yajuz”; where knowledge is impossible sulh over the unknown is allowed — so for the Malikis, the Shafi’is and Ahmad, while “al-mashhuru ‘inda al-Hanabila jawazu al-sulhi ‘an al-majhuli mutlaqan” (Ministry of Awqaf and Islamic Affairs, Kuwait) — Mawsu’a §14, footnoted to Rawdat al-Talibin, Nihayat al-Muhtaj, Mughni al-Muhtaj and Asna al-Matalib.

Valid, and run entirely on the ordinary rules of settlement. The Mawsu’a states in terms that the Hanbalis record no forms specific to takharuj at all: it goes through as a sulh, which on their analysis is only ever one of three things. If the withdrawing heir is paid in the same kind as his right and to its full measure, he has simply been paid; if less, he has been paid part and released or gifted the rest; if in a different kind, it is a sale with the law of sale, and the rules of currency exchange if money is traded for money. Ibn Qudama sets out exactly that three-way division in his Book of Settlement. Two Hanbali features matter practically: the school’s well-known position is that settlement over an unknown quantity is permitted absolutely, not merely where the figure cannot be discovered; but where the settlement is made over a denial, the heir taking the money may not take more of his own genus than he is actually owed, because the excess has nothing standing against it.

Sources: al-Mawsu’a al-Fiqhiyya, “Takharuj” secs. 14–15 — madhhab al-Shafi’iyya: settlement on an acknowledgement with a consideration other than the thing itself “kana bay’an tathbutu fihi ahkamu al-bay’”, settlement on part of the thing itself is a gift of the rest; settlement over a DENIAL is void with them, “lakinnahum yastathnuna min butlani al-sulhi ‘ala al-inkari sulha al-warathati fima baynahum li’l-darura”, on condition that what is given comes from the estate itself and not from outside it. Sec. 15, madhhab al-Hanabila: “lam yadhkur al-Hanabilatu suwaran li’l-takharuj, wa huwa yajri ‘ala qawa’idi al-sulhi al-‘amma” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Takharuj” sec. 15 cont. — the Hanbali working: consideration of the same genus as his right and equal to it is simply istifa’ (taking what is his); less than it is istifa’ of part and ibra’ or hiba of the rest; of a different genus “kana bay’an tajri fihi ahkamu al-bay’” with sarf conditions where currency meets currency; and where the settlement is over a denial he may not take more of his own genus than he is entitled to (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Takharuj” sec. 7 — first general condition: the estate must be KNOWN, “idh al-takharuju fi’l-ghalibi bay’un fi surati sulh, wa bay’u al-majhuli la yajuz”; where knowledge is impossible sulh over the unknown is allowed — so for the Malikis, the Shafi’is and Ahmad, while “al-mashhuru ‘inda al-Hanabila jawazu al-sulhi ‘an al-majhuli mutlaqan” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mughni, Kitab al-Sulh — the Hanbali analysis of a settlement made on an acknowledgement: “wa dhalika thalathatu aqsam; mu‘awadatun, wa ibra’un, wa hiba” — payment in the same genus is discharge, in a different genus an exchange, a release of part is ibra’, and a handing over of part of the thing itself is a gift; currency for currency is sarf and requires exchange in the session (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mughni, Kitab al-Sulh — opening: the hadith “al-sulhu ja’izun bayna al-muslimin illa sulhan harrama halalan aw ahalla haraman” (Ibn Qudama: “akhrajahu al-Tirmidhi, wa qala: hadithun hasanun sahih”), and “wa ajma‘at al-ummatu ‘ala jawazi al-sulhi fi hadhihi al-anwa‘” (Ibn Qudama al-Maqdisi (d. 620 AH)) — Mawsu’a §15 (footnoted to al-Mughni, Kashshaf al-Qina’ and Muntaha al-Iradat), read against al-Mughni’s own Kitab al-Sulh.