We reviewed request no. 218 for the year 2004 which includes a question on whether it is permissible for a pilgrim on hajj tamattu' to perform sa'y before tawaf.
According to Hanafi and Maliki scholars, one of the conditions of sa'y is that it be performed after a valid tawaf, even if a voluntary one; they call this the sequence of sa'y. However, Maliki scholars differentiate between what is a condition and what is an obligation concerning the tawaf performed before sa'y. They maintained that for sa'y to be valid, it is a condition that tawaf precedes it. However, the tawaf must be either obligatory (tawaf al-ifada) or required (tawaf al-qudum) and that the pilgrim must make the intention to perform an obligatory tawaf or believes in its obligatoriness. Since, according to Maliki scholars tawaf al-qudum is required, it is therefore valid in their school to perform sa'y before standing at 'Arafat after having performed tawaf al-qudum.
According to Hanafi scholars, there is no problem with a pilgrim who performs sa'y after a non-obligatory tawaf. But in the Maliki school, a pilgrim must repeat his sa'y if;
- he has made a voluntary tawaf (to gain the pleasure of Allah),
- he has made the intention to perform a recommended tawaf,
- he has made an unconditional intention,
-out of ignorance, believes in the non-obligatoriness of tawaf.
In any of the above cases, a pilgrim must repeat his sa'y and make the intention either for an obligatory or required tawaf. He must do this while still in Mecca but if he had returned to his country, he must offer a ritual sacrifice in expiation.
In the Shafi'i and Hanbali schools, it is a condition to perform sa'y after the tawaf al-ifada or tawaf al-qudum and any interruptions in-between does not vitiate the validity of sa'y except for standing at 'Arafat. In such a case, the sa'y performed before standing at 'Arafat does not meet the obligation and a pilgrim must repeat it after tawaf al-ifada. They based their opinion on the fact that the Prophetperformed sa'y after tawaf on his hajj. It was reported that he said, "Take your rites [from me]" [Muslim].
It was reported from 'Ata`, Dawud al-Dhahiri and some hadith scholars that it is not a condition that tawaf precede sa'y. In one report, Imam Ahmed maintains that the sa'y of a person who, out of forgetfulness performs sa'y before tawaf, meets the obligation. They further based their opinion on the hadith narrated by Usama Ibn Sharik (may Allah be pleased with him) who said, "I went on hajj with the Prophetand the people would approach him [with questions]. Some would say, 'O Messenger of Allah! I performed sa'y before tawaf' or 'I performed a rite before or after its time.' In reply, the Prophetwould say, 'There is no harm except if one wrongfully slanders a Muslim' " [Recorded by Abu Dawud with a valid ascription]. The majority of scholars have interpreted this hadith to mean performing sa'y after tawaf al-qudum and before tawaf al-ifada.
It is permissible for a pilgrim on hajj tamattu' to perform tawaf al-qudum before sa'y. Our opinion is that sa'y meets the obligation by the will of Allah if the pilgrim performed it before any kind of tawaf and then traveled to his country, following the apparent meaning of the above hadith and the opinion of the scholars who permit it.
Allah the Almighty knows best.