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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 12 · صفحة 432فصل

الترجمة · EN

The difference between the door of the house and the door of the chest is that the doors of chests are secured by the house door, whereas the house door is only secured by its installation and is not secured by anything else. As for the door knocker, if it is nailed down, it is secured; otherwise, it is not, because it is secured by being nailed down.

Section: If one steals a mosque door that is installed, or an installed door of the Ka'bah, or steals something from its roof or its covering (tazir) (79), there are two opinions. The first is that the cutting punishment is mandatory. This is the school of al-Shafi'i, Abu al-Qasim—a companion of Malik—Abu Thawr, and Ibn al-Mundhir, because he stole a nisab from a secured place that is typically secured, and he has no ambiguity regarding it; therefore, the cutting punishment is required, just as in the case of the door of a person's house. The second opinion is that there is no cutting punishment for him. This is the view of the proponents of Ra'y (rationalist school), because it has no owner among created beings, and therefore there is no cutting punishment for it, just as with the mats and lamps of the mosque. Indeed, there is no cutting punishment for stealing these things, according to a unanimous view, because they are things from which people derive benefit (80), thus giving him an ambiguity (shubhah), so there is no cutting punishment for them, similar to theft from the public treasury (bayt al-mal). Ahmad said: There is no cutting punishment for stealing the outer covering (sitara) of the Ka'bah. Al-Qadi said: This applies to that which is not sewn, because it is only secured by being sewn. Abu Hanifah said: There is no cutting punishment for it under any circumstances, for the reasons we mentioned regarding the door.

Section: If a person rents out his house, then steals the tenant's property from it, the cutting punishment is mandatory for him. This was the view of al-Shafi'i and Abu Hanifah. His two companions said: There is no cutting punishment for him because the usufruct (manfa'ah) occurs in the ownership of the lessor, and then transfers to the lessee. Our evidence is that he violated a secured place and stole a nisab from it without having any ambiguity regarding it (80), so the cutting punishment is mandatory, just as if he had stolen from the property of a tenant. We do not concede what they both claimed. If a person borrows a house and the lender breaks in and steals the borrower's property from it, he is also subject to the cutting punishment. Al-Shafi'i also held this view in one of his two opinions. Abu Hanifah said: There is no cutting punishment for him, because the usufruct is his property, so he did not violate the secured place of another, and because he has the right to reclaim it whenever he wishes, and this counts as a reclamation. Our evidence is what preceded in the previous case, and what he mentioned is not valid, because this has become a secured place for someone else's property, and he is not permitted to enter it. He is only permitted to reclaim it under the terms of the loan (ariyah) and to demand its return to him.

الحواشي

(79) Al-Tazir: Covering and strengthening. (80) Omitted from: M.

السابقمجلد 12 · صفحة 432التالي
السابق12·432التالي