al-Hasan, Abu Qilaba, al-Shafi'i, Abu Thawr, and the proponents of ra'y (reasoned opinion); because it is not permissible to rule based on seeing the witness's handwriting for the purpose of bearing testimony by consensus, and thus it is the same here. Even more conclusive than this is that if a judge sees a ruling in his own handwriting beneath which is his seal, but he does not recall having ruled with it, or if a witness sees his testimony in his own handwriting but does not recall the testimony, it is not permissible for the judge to enforce the ruling based on what he found, nor for the witness to testify based on what he saw as his handwriting. Thus, it is more appropriate here [that it not be permissible]. Ahmad has stipulated this regarding testimony. The argument for the position of al-Khiraqi is the statement of the Prophet (may the peace and blessings of Allah be upon him): "It is not the right of a Muslim man who has something for which he should make a bequest to let two nights pass without having his bequest written down with him." He did not mention witnessing. And [there is] what we mentioned in the section that follows this, and because the bequest is treated with leniency; for this reason, it was valid to suspend it upon risk and uncertainty, it was valid for the fetus, for the "it" (its existence), for that which cannot be delivered, and for the non-existent and the unknown. Thus, it is permissible for it to be treated with leniency by accepting handwriting, like the transmission of Hadith.
Section: If he writes his bequest and says, "Bear witness against me regarding what is in this paper," or says, "This is my bequest, so bear witness against me regarding it," it has been narrated from Ahmad that when a man writes his bequest and seals it, and says to the witnesses, "Bear witness against me regarding what is in this document," it is not permissible until they hear from him what is in it, or it is read to him and he affirms what is in it. This is the view of those we named in the first issue. Al-Khiraqi's statement potentially allows for its permissibility, because if his bare handwriting is accepted, then this is more appropriate. Among those who said this were Abd al-Malik ibn Ya'la, Makhul, Numayr ibn Ibrahim, Malik, al-Layth, and al-Awza'i,
(2) In the original and A: "tahta" (underneath). (3) In M: "min" (from). (4) Its citation has preceded on page 389. (5) In A, B, and M: "shahadatuhu" (his testimony). (6) In A and M, there is the addition: "al-awwal" (the first). (7) The conjunction "wa" (and) is omitted from M. (8) Abd al-Malik ibn Ya'la al-Laythi, judge of Basra. He narrated from the Prophet (may the peace and blessings of Allah be upon him) in mursal form, and from Imran ibn Husayn. He was trustworthy and died in the year 100 AH. Tahdhib al-Tahdhib 6/429. (9) We have not found a biography for Numayr ibn Ibrahim. Perhaps the intended person is Numayr ibn Aws al-Ash'ari, judge of Damascus, a contemporary of Makhul. See: Akhbar al-Qudat by Waki' 3/204-206; al-Ikmal 7/363.
