IN THE COURTS OF THE NATIONS - DataSpace - Princeton ...

weeks after the plaintiff filed the maqāl. Before the next appearance in court, the defendant had
to provide a guarantor for his presence (ḍāmin al-wajh) to ensure that he did not flee. 141 A
guarantor for the presence of the defendant in court was different from a guarantor for the
payment of a debt; his only responsibility was to ensure that the defendant appeared when
summoned. It is not entirely clear what responsibilities fell to the guarantor of presence should
the defendant fail to come to court.
About half of the lawsuits preserved in the Assarraf collection do not indicate how the
sharī‘a court ruled. 142 Sometimes, we do not even know how the defendant pleaded. 143 In other
cases, we know only that the defendant pleaded not guilty and the qāḍī ordered the plaintiff to
prove his claim. Presumably, proof consisted of notarized documents that recorded the debt,
which indicates why it was so important for businessmen like the Assarrafs to have their
financial transactions notarized by ‘udūl. 144 It is possible that these lawsuits did not end there;
the qāḍī might even have ruled one way or another, although these rulings for whatever reason
did not survive in the Assarraf collection. Another possibility is that these disputes were
resolved outside of court, which is why their resolution does not appear as part of the lawsuit
itself. In fact, we can safely assume that suing someone in court was just one strategy among
many with which individuals pursued their legal claims. Jews and Muslims might have used the
threat of legal action to force their business associates to reach a settlement, and filing a lawsuit
Morocco was quite similar to that observed in kadı courts of the Ottoman Empire: see, e.g., Jennings, “Limitations
of the Judicial Powers of the Kadi,” 172-3.
141 The documents attesting to the fact that an individual guaranteed the presence of another in court were often
written on separate pieces of paper from the rest of the lawsuits, though at times they were entered below the maqāl
along with the other court appearances. There are a total of 209 such guarantees which are not written as entries
after a maqāl (about 11% of the total collection). On the legal basis of this practice, see Santillana, Istituzioni di
diritto musulmano malichita, v. 2, 493-4; Schacht, An Introduction to Islamic Law, 197.
142 Thirty-seven of the seventy lawsuits do not have a resolution.
143 Twelve maqāls in the collection do not include the defendant’s plea. This could be because the parties resolved
their dispute outside of court and thus never bothered to pursue the case further. It might also be that the rest of the
court case was recorded elsewhere and thus became separated from the original maqāl.
144 There are fourteen such cases.
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