ABSTRACT
In Amidi’s Ihkam, the matter is presented as a matter of tarjih or deciding what is superior argument as an outcome of taʿarud or ‘conflict’ – plain and simple. Medieval Sunni jurists have also considered the extent to which iqala may involve unacceptable modifications to the initial contract. Medieval Sunni Islamic law would consider this a case of undelivered gift, which, if administered while the owner is in full possession of his health and mental capacity, is valid and hence excludes the purported property from the inheritance. The inquiry on al-taʿadul wa-l-tarjih or al-taʿaruʿ wa-l-tarjih in Islamic theoretical jurisprudence addresses, in general terms, what jurists should do when they encounter in their legal research what appear to be conflicting arguments of equal strength. Conflicting arguments of equal power will simply arise from friction among the first three sources of the law: legislation, religion and custom.
