A: Maradh al-Maut (sickness of death) refers to that sickness that led to one’s death. Sharīʿah has limited a person’s dealings during this time. The issue is defining that point in which dealings are limited, especially if one is a cancer patient or an acute diabetic. These are known to be terminal sicknesses, but in many instances a cancer patient lives on for years on end. So at which point will he be restricted from his dealings to safeguard the rights of his inheritors? This research presents the guiding principles for this critical issue. Other Ulama were consulted on this before arriving at a conclusion.
The Fiqh of Maradh al-Maut
A case in point: Zaid is diagnosed with cancer onNovember 1, 2012. The cancer has reached a very critical stage. Doctors say that Zaid may pass away within a period of six months. However, at this point in time, Zaid is physically strong. He is able to fulfill his personal needs and go to the Masjid for Salāh. Doctors suggest that Zaid should go through chemotherapy without wasting time.
Zaid agrees and commences with the therapy. One month into his therapy, Zaid experiences a heart attack. After the heart attack, Zaid is housebound and shortly thereafter he passes away. What is considered the Maradh al-Maut in such a situation? Do we consider the commencement of Maradh al-Maut upon the diagnosis of the cancer? Or do we consider it from the time Zaid was housebound due to the heart attack?
Analysis: Some may suggest that since the cancer was terminal, it should be classified as the Maradh al-Maut. However, many times cancer patients outlive the timespan estimated by doctors. In fact many a times, they live longer than others who are perfectly healthy. Hence, what is classified as terminal by medical doctors cannot be termed as the Maradh al-Maut. Recently in the news appeared a report of an 18 year old girl whom all the doctors had said would not live when she was born. The doctors gave her one week to survive due to multiple complications of this prematurely born child.Today the child is an 18 year old who has successfully completed her matric and pursuing higher education.
Another point to consider is that many of those who are diagnosed with a terminal sickness are not physically disabled. They appear as if they are normal and healthy. They are able to see to their own needs without any assistance. Recently, a professor at a university was diagnosed with cancer of the liver. At a gathering of professionals – doctors, university staff, lawyers, etc., he gave a speech and mentioned his cancer, saying that he knows that he does not have long to live. But, he was as fit as a fiddle. At the gathering, he demonstrated his physical fitness. He performed a couple of dozen push-ups and some other physical exercises without showing signs of tiredness. Addressing the crowd, he said that despite his cancer, he challenges any one from the crowd to physical combat. Within three months he died. Now how can it be said that his Maradhul Maut began from the day he was diagnosed with cancer and his transactions during this time were restricted?
Even if we consider the diagnosis to be the commencement of Maradh al-Maut, the cancer most definitely existed well before the diagnosis. Hence, the Maradh al-Maut should actually be from the time Zaid was afflicted with cancer, not from the point of diagnosis. However, the exact stage when the cancer developed is unknown and difficult to determine.
The correct answer in the abovementioned case is that Maradh al-Maut initiated from the time Zaid was housebound. That was from the point Zaid had a heart attack.
Maradh al-Maut is the last sickness from which the deceased never recovers. It is that sickness that eventually leads to the death of the person.[iii] In defining Maradh al-Maut, the Fuqahā have stated that Maradh al-Maut for a male commences from the point when the ill person becomes housebound and is unable to go to the Masjid (if the Masjid is in close proximity) or go to the shopping center (if it is in close proximity) by himself. In respect to a female, Maradh al-Maut commences when she is unable to fulfill her domestic chores by herself for example cooking and cleaning the house. In any case, it is not necessary however that one must be bedridden. [iv]Even if an individual is diagnosed with a terminal sickness such as cancer, the Maradh al-Maut does not commence upon diagnosis, rather when the patient becomes housebound. What the doctors describe as a terminal illness, is not Maradhul Maut.
Note that if a male has the ability to leave home independently and a female has the ability to, for example, cook independently, but they do not do so due to precaution or advice of doctors, this is not Maradh al-Maut.
If one is disabled or housebound for one year or more, Maradh al-Maut is not considered from the commencement of the disability. His transactions in this duration are not restricted. However, if the sickness becomes critical and he passes away in this condition, then his Maradh al-Maut is considered from the time his health seriously deteriorates.
Hereunder are basic rules that are applicable during Maradh al-Maut:
· Charitable agreements such as gifting or donating are treated like bequests. Hence, a gift to an heir is invalid unless the rest of the heirs permit it after the death of the deceased.
· A gift to a non-heir is valid on condition that the value of the gift is lesser than one third or equal to one third of the entire estate. If the value of the gift exceeds one third of the estate and the heirs do not permit its formulation, the recipient of the gift will be obliged to return the surplus amount back to the estate.
· A sale of a commodity to an heir is suspended upon the permission of the rest of the heirs after the deceased’s death. If they permit the sale, it is valid, otherwise it is invalid.
· A sale of a commodity to a non-heir for the normal market price is valid. If the sale is lesser than the market price, then it is considered to be charity to the purchaser. If the discounted amount is equivalent to one third or lesser than the value of the entire estate, the sale is valid. However if the discounted amount exceeds one third of the estate, and the heirs do not permit such a discount, the purchaser will be obliged to return the surplus to the estate.
For example, Zaid is in Maradh al-Maut and he has a total of R15,000 in his estate which comprises of R6,000 cash and a car worth R9,000. Since the market price of Zaid’s car is R9,000, if Zaid sells his car to Bakr for R9,000 the sale is valid. However, if Zaid sells the car for R8,000, Zaid has given a R1,000 discount to Bakr as this is a gift. Since R1,000 is less than 1/3 of the entire estate, which is R5,000, the sale is valid. However, if Zaid sells his car to Bakr for R3,000, Zaid has given Bakr a discount of R6,000,which is more than 1/3 of the estate. Hence, Zaid’s heirs have the right to demand from Bakr R1,000 to the estate in order to confine the discount to R5,000, which is 1/3 of the estate. If Bakr does not return R1,000 to the estate, Zaid’s heirs have the right to cancel Zaid’s transaction with Bakr.
· Confession of a debt in favor of an heir is suspended upon the approval of the remaining heirs. They may approve the debt during the life of the sick person or after death. If they deny the debt, then the confession is invalid. The wisdom in this is that there is scope for accusation against the confessor that he is favoring one heir over the other. Note that this ruling is applicable in the absence of witnesses. If witnesses are present or the debt is common knowledge, then the confession will be valid.
· Confession of a debt in favor of a non-heir is valid,whether there is evidence in support of the debt or not.This is so because there is no scope for accusation in respect to a non-heir and to free oneself from a debt is a personal need that is necessary for entrance into Jannah.
· Leasing out one’s property or goods at any rate is valid
· Lending one’s belongings is valid.
· If one divorces his wife, the divorce is valid. If he passes away during the duration of her ʿIddah, she will inherit from the estate. Otherwise she will not inherit.
For an easier understanding of the various rulings during Maradh al-Maut, please refer to the following chart:
1.Gifting to an heir: Invalid unless the remaining heirs permit it after the death of the deceased
2.Gifting to a non-heir: Valid if the gift equals or is less than 1/3 of the entire estate’s value
3.Donating to an heir: Invalid unless the remaining heirs permit it after the death of the deceased
4.Donating to a non-heir/organization: Valid if the donation equals or is less than 1/3 of the entire estate’s value
5.Selling to an heir: Suspended upon the permission of remaining heirs after the demise of the deceased
6.Selling to a non-heir/organization: Valid if the sale is equivalent to the market value. If the sale is lesser than the market value, the discounted amount is considered a gift. If the discounted amount is equivalent to 1/3 or less than 1/3 of the entire estate, the sale is valid. Otherwise, the heirs have a right to demand the amount exceeding 1/3 of the estate.
7. Confession of debt in favor of an heir: Suspended upon the approval of remaining heirs
8. Confession of debt in favor of a non-heir: Valid
9. Leasing: Valid
10. Lending: Valid
The Fiqh of Maradh al-Maut
A case in point: Zaid is diagnosed with cancer onNovember 1, 2012. The cancer has reached a very critical stage. Doctors say that Zaid may pass away within a period of six months. However, at this point in time, Zaid is physically strong. He is able to fulfill his personal needs and go to the Masjid for Salāh. Doctors suggest that Zaid should go through chemotherapy without wasting time.
Zaid agrees and commences with the therapy. One month into his therapy, Zaid experiences a heart attack. After the heart attack, Zaid is housebound and shortly thereafter he passes away. What is considered the Maradh al-Maut in such a situation? Do we consider the commencement of Maradh al-Maut upon the diagnosis of the cancer? Or do we consider it from the time Zaid was housebound due to the heart attack?
Analysis: Some may suggest that since the cancer was terminal, it should be classified as the Maradh al-Maut. However, many times cancer patients outlive the timespan estimated by doctors. In fact many a times, they live longer than others who are perfectly healthy. Hence, what is classified as terminal by medical doctors cannot be termed as the Maradh al-Maut. Recently in the news appeared a report of an 18 year old girl whom all the doctors had said would not live when she was born. The doctors gave her one week to survive due to multiple complications of this prematurely born child.Today the child is an 18 year old who has successfully completed her matric and pursuing higher education.
Another point to consider is that many of those who are diagnosed with a terminal sickness are not physically disabled. They appear as if they are normal and healthy. They are able to see to their own needs without any assistance. Recently, a professor at a university was diagnosed with cancer of the liver. At a gathering of professionals – doctors, university staff, lawyers, etc., he gave a speech and mentioned his cancer, saying that he knows that he does not have long to live. But, he was as fit as a fiddle. At the gathering, he demonstrated his physical fitness. He performed a couple of dozen push-ups and some other physical exercises without showing signs of tiredness. Addressing the crowd, he said that despite his cancer, he challenges any one from the crowd to physical combat. Within three months he died. Now how can it be said that his Maradhul Maut began from the day he was diagnosed with cancer and his transactions during this time were restricted?
Even if we consider the diagnosis to be the commencement of Maradh al-Maut, the cancer most definitely existed well before the diagnosis. Hence, the Maradh al-Maut should actually be from the time Zaid was afflicted with cancer, not from the point of diagnosis. However, the exact stage when the cancer developed is unknown and difficult to determine.
The correct answer in the abovementioned case is that Maradh al-Maut initiated from the time Zaid was housebound. That was from the point Zaid had a heart attack.
Maradh al-Maut is the last sickness from which the deceased never recovers. It is that sickness that eventually leads to the death of the person.[iii] In defining Maradh al-Maut, the Fuqahā have stated that Maradh al-Maut for a male commences from the point when the ill person becomes housebound and is unable to go to the Masjid (if the Masjid is in close proximity) or go to the shopping center (if it is in close proximity) by himself. In respect to a female, Maradh al-Maut commences when she is unable to fulfill her domestic chores by herself for example cooking and cleaning the house. In any case, it is not necessary however that one must be bedridden. [iv]Even if an individual is diagnosed with a terminal sickness such as cancer, the Maradh al-Maut does not commence upon diagnosis, rather when the patient becomes housebound. What the doctors describe as a terminal illness, is not Maradhul Maut.
Note that if a male has the ability to leave home independently and a female has the ability to, for example, cook independently, but they do not do so due to precaution or advice of doctors, this is not Maradh al-Maut.
If one is disabled or housebound for one year or more, Maradh al-Maut is not considered from the commencement of the disability. His transactions in this duration are not restricted. However, if the sickness becomes critical and he passes away in this condition, then his Maradh al-Maut is considered from the time his health seriously deteriorates.
Hereunder are basic rules that are applicable during Maradh al-Maut:
· Charitable agreements such as gifting or donating are treated like bequests. Hence, a gift to an heir is invalid unless the rest of the heirs permit it after the death of the deceased.
· A gift to a non-heir is valid on condition that the value of the gift is lesser than one third or equal to one third of the entire estate. If the value of the gift exceeds one third of the estate and the heirs do not permit its formulation, the recipient of the gift will be obliged to return the surplus amount back to the estate.
· A sale of a commodity to an heir is suspended upon the permission of the rest of the heirs after the deceased’s death. If they permit the sale, it is valid, otherwise it is invalid.
· A sale of a commodity to a non-heir for the normal market price is valid. If the sale is lesser than the market price, then it is considered to be charity to the purchaser. If the discounted amount is equivalent to one third or lesser than the value of the entire estate, the sale is valid. However if the discounted amount exceeds one third of the estate, and the heirs do not permit such a discount, the purchaser will be obliged to return the surplus to the estate.
For example, Zaid is in Maradh al-Maut and he has a total of R15,000 in his estate which comprises of R6,000 cash and a car worth R9,000. Since the market price of Zaid’s car is R9,000, if Zaid sells his car to Bakr for R9,000 the sale is valid. However, if Zaid sells the car for R8,000, Zaid has given a R1,000 discount to Bakr as this is a gift. Since R1,000 is less than 1/3 of the entire estate, which is R5,000, the sale is valid. However, if Zaid sells his car to Bakr for R3,000, Zaid has given Bakr a discount of R6,000,which is more than 1/3 of the estate. Hence, Zaid’s heirs have the right to demand from Bakr R1,000 to the estate in order to confine the discount to R5,000, which is 1/3 of the estate. If Bakr does not return R1,000 to the estate, Zaid’s heirs have the right to cancel Zaid’s transaction with Bakr.
· Confession of a debt in favor of an heir is suspended upon the approval of the remaining heirs. They may approve the debt during the life of the sick person or after death. If they deny the debt, then the confession is invalid. The wisdom in this is that there is scope for accusation against the confessor that he is favoring one heir over the other. Note that this ruling is applicable in the absence of witnesses. If witnesses are present or the debt is common knowledge, then the confession will be valid.
· Confession of a debt in favor of a non-heir is valid,whether there is evidence in support of the debt or not.This is so because there is no scope for accusation in respect to a non-heir and to free oneself from a debt is a personal need that is necessary for entrance into Jannah.
· Leasing out one’s property or goods at any rate is valid
· Lending one’s belongings is valid.
· If one divorces his wife, the divorce is valid. If he passes away during the duration of her ʿIddah, she will inherit from the estate. Otherwise she will not inherit.
For an easier understanding of the various rulings during Maradh al-Maut, please refer to the following chart:
1.Gifting to an heir: Invalid unless the remaining heirs permit it after the death of the deceased
2.Gifting to a non-heir: Valid if the gift equals or is less than 1/3 of the entire estate’s value
3.Donating to an heir: Invalid unless the remaining heirs permit it after the death of the deceased
4.Donating to a non-heir/organization: Valid if the donation equals or is less than 1/3 of the entire estate’s value
5.Selling to an heir: Suspended upon the permission of remaining heirs after the demise of the deceased
6.Selling to a non-heir/organization: Valid if the sale is equivalent to the market value. If the sale is lesser than the market value, the discounted amount is considered a gift. If the discounted amount is equivalent to 1/3 or less than 1/3 of the entire estate, the sale is valid. Otherwise, the heirs have a right to demand the amount exceeding 1/3 of the estate.
7. Confession of debt in favor of an heir: Suspended upon the approval of remaining heirs
8. Confession of debt in favor of a non-heir: Valid
9. Leasing: Valid
10. Lending: Valid
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