186 LEGAL MAXIMS IN TRADITIONS

we might conclude that the Medinese borrowed the maxim from the Iraqians, although I find it attested on the Iraqian side, in the sources available, only at a later period.¹

An old Iraqian maxim is countered by a later Medinese one in the following case:

In pre-Islamic Arab usage, rahn 'security' meant a kind of earnest money which was given as a guarantee and material proof of a contract, particularly when there was no scribe available to put it into writing.² The word occurs in this meaning in Koran ii. 283. But the institution of earnest money was not recognized by the ancient schools of law, although it left some traces in traditions,³ and the common ancient doctrine knew rahn only as a security for the payment of a debt. The foreign origin of this doctrine which neglects old Arab usage and an explicit passage in the Koran, is probable. There arises the question of how far the security automatically takes the place of the debt, (a) if the security gets lost while it is in the possession of the creditor, (b) if the debtor fails to pay the debt within the stipulated time. The oldest opinion goes farthest and states that 'the security takes the place of that for which it is given' (al-rahn bi-mā fīh). This maxim is Iraqian (Tr. I, 68) and was projected back to Shuraiḥ (Umm, iii. 166); it was also known in Medina (Muw. iii. 190), and in Mecca where it was connected with 'Aṭā' and projected back to the Prophet (Umm, loc. cit.). The Iraqian school, however, mitigated this extreme doctrine.⁴

The old Iraqian maxim was countered in Medina by the opposite maxim 'the security is not forfeited' (al-rahn lā yaghlaq); it was put into the mouth of the Prophet in traditions whose isnāds have their common link in Zuhrī.⁵ It is a late, polemical counter-statement and does not adequately express the Medinese doctrine which is considerably influenced by the mitigated doctrine of the Iraqian school.⁶ The doctrines of the Iraqian