Determination of the required expenditure for Hajj when the bequest is conditional upon the third, and whether the Hajj is obligatory or voluntary.
General Chapter
Al-Mughni
Book of Bequests
Primary text
If the testator wills that Hajj be performed on their behalf, and the required expense exceeds the third, the matter is divided based on whether the Hajj was obligatory (fard) or voluntary (tatowwu'). If it was obligatory, the amount taken is the greater of either the full third or the sum necessary to complete the obligatory Hajj. If the third is greater, the necessary amount for the obligatory Hajj is spent, and the remainder is used for voluntary Hajj until the funds are depleted or insufficient for another full Hajj. If the third is less than the required amount for the obligatory Hajj, the principal capital must be supplemented to cover the obligation. This view is held by 'Ata, Tawus, Al-Hasan, Sa'id ibn al-Musayyab, Al-Zuhri, Al-Shafi'i, and Ishaq. They maintain that any obligatory matter should be covered from the principal capital.
Supporting text
Conversely, Ibn Sirin, Al-Nakha'i, Al-Sha'bi, Hammad ibn Abi Sulayman, Al-Thawri, Abu Hanifa, and Dawud ibn Abi Hind hold that if the testator specified the third for Hajj, expenditure is limited to that third, and the heirs are not obliged to supplement it, drawing an analogy to prayer, which is not binding upon the heir. They argue that if the testator did not specify the third, the heirs owe nothing. If the Hajj was voluntary, only the third is taken, provided the heirs do not consent to more, and it is spent as specified previously.