The Effect of Negligence on Personal Status—A Comparative Jurisprudential Study

Abstract

This research examines the topic of “The Impact of Fudalah (Unauthorised Intervention) on Personal Status Matters”. Fudalah is a significant jurisprudential concept concerning a person’s undertaking of an act or dealing on behalf of another person without prior authorization, and the legal and Sharia consequences arising from such conduct, particularly in matters relating to family and personal status. The study aims to clarify the concept of Fudalah, its legal basis, conditions, and rulings, and to examine its effects in selected personal status matters, including the marriage concluded by an unauthorised person, maintenance, reconciliation between spouses, the management of the property of absent persons and minors, as well as the liability and guarantee resulting from the acts of the unauthorised intervenor. The research adopts an inductive, analytical, and comparative methodology by examining the opinions and evidences of Muslim jurists in authoritative sources of Islamic jurisprudence, analysing and comparing their views, identifying areas of agreement and disagreement, and determining the stronger opinion in light of the evidence and the objectives and principles of Islamic law. The study concludes that Fudalah involves an individual’s intervention in another person’s affairs, without prior authorization, with the intention of achieving a legitimate benefit. Islamic jurisprudence has addressed various forms of such intervention and established different rulings according to the nature of the act and the interests of the person concerned. The research also demonstrates that Fudalah has significant implications in personal status matters, particularly in marriage, maintenance, reconciliation between spouses, and the management of the property of absent persons and minors. Furthermore, the liability of the unauthorised intervenor depends on the nature of the act and whether it involved transgression, negligence, or harm. The study emphasizes the importance of regulating such interventions in a manner that achieves legitimate interests, prevents harm, protects rights, and takes into account the particular nature of personal status matters and their social and legal consequences.