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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 10 · صفحة 122

الترجمة · EN

Ahmad stated this explicitly. If it decreases after she has taken possession of it, or is destroyed, it is at her risk. If she paid Zakat on it and was then divorced before consummation, the liability for all the Zakat is upon her. As for before taking possession, it is at the risk of the husband, if it is something measured by volume or weight. If it is other than these, and he prevented her from accessing it and did not enable her to take possession of it, it is at his risk because he is in the position of a usurper. If he did not intervene between it and her, then is it at her risk or his? There are two views, based on the sold item, and we have mentioned its ruling in its chapter.

The second ruling is that the dowry is halved by divorce before consummation, based on the saying of the Almighty: "And if you divorce them before you have touched them and you have already specified for them a dowry, then [give them] half of what you specified." There is no disagreement regarding this, praise be to Allah. The analogy of the school is that half of the dowry enters into the husband's ownership by decree, like inheritance; it does not depend on his choice or will, so whatever growth occurs is shared between them. This is the view of Zufar. The judge mentioned another possibility: that it does not enter his ownership until he chooses to take it, like the one entitled to pre-emption (shafi'). This is the view of Abu Hanifa. There are two opinions from al-Shafi'i, like the two views. Our evidence is the saying of the Almighty: "then [give them] half of what you specified," meaning for you or for them, which dictates that half is hers and half is his, by the mere act of divorce. Furthermore, divorce is a cause through which one gains ownership without compensation, so ownership does not depend on his will and choice, like inheritance. Also, it is a cause for the transfer of ownership, so it transfers ownership by its mere occurrence, like a sale and other causes. Pre-emption does not necessarily follow; for the cause of ownership in it is the act of taking it, and once he takes it, ownership is established without his will or choice. Before taking it, the cause was not found; it is only entitled through the implementation of the cause of ownership, and the implementation of causes is contingent upon his choice, just as divorce is delegated to his choice. Thus, taking by pre-emption is like divorce, and the establishment of ownership for the one taking by pre-emption is like the establishment of ownership for the one divorcing. The establishment of ownership is a ruling of it, and the establishment of the rulings of causes after their implementation does not depend on anyone's choice or will.

الحواشي

(6) In [A], [B], and [M]: "And as for". (7) Surah al-Baqarah, 237. (8) In [A], [B], and [M]: "chooses". (9) Omitted from the original. (10) In the original and [A]: "the implementation of".

السابقمجلد 10 · صفحة 122التالي
السابق10·122التالي