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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 6 · صفحة 171فصل

الترجمة · EN

Section: If one stipulates in a sale that if he sells it, the seller has a better right to it for the price, it is related from al-Marwazi on the authority of Ahmad that he said regarding the meaning of the hadith of the Prophet (may Allah bless him and grant him peace): "There are no two conditions in one sale." This means it is invalid because he stipulated that he sell it to him and give it to him at the original price, so these are two conditions in one sale that are forbidden. Furthermore, it contradicts the requirement of the contract, because he stipulated that he not sell it to someone else if he gives him its price; this is just as if he stipulated that he not sell it except to so-and-so, or that he not sell it at all. Ismail ibn Sa'id related on his authority: The sale is permissible, based on what was narrated from Ibn Mas'ud, that he said: "I bought a slave girl from my wife, Zaynab al-Thaqafiyya, and I stipulated for her that if I sell her, she is hers for the price at which I bought her. I mentioned this to Umar, and he said: 'Do not approach her while anyone has a condition regarding her.'" Ismail said: I mentioned the hadith to Ahmad, and he said: "The sale is permissible, and 'do not approach her' is because there was one condition in it for the woman." Umar did not say that that sale was invalid, so he interpreted the hadith according to its apparent meaning and acted upon it. Umar and Ibn Mas'ud agreed on its validity, whereas analogy dictates its invalidity. It is possible that Ahmad's statement in the narration of al-Marwazi is interpreted as the invalidity of the condition, and in the narration of Ismail ibn Sa'id as the validity of the sale; thus, the sale is valid and the condition is invalid, just as if he had purchased it with the condition that he not sell it. Ahmad's statement, "Do not approach her," has been narrated similarly regarding someone who stipulates regarding a slave girl that he will not sell her or give her away, or stipulates her loyalty (wala') upon him, and he does not approach her. The sale is valid, and he argued using the hadith of Umar: "Do not approach her while anyone has a claim to her." The judge (al-Qadi) said: This is for dislike (karaha) and not for prohibition. Ibn 'Aqil said: In my view, he was only prevented from intercourse because of the disagreement regarding the contract, given that it becomes invalid due to the invalidity of the condition in some schools of thought. And Allah knows best.

الحواشي

(27) In the original: "the sale". (28) In the manuscripts here and in what follows: "al-Marwazī". A corruption, and it preceded in: 1/6. (29) Its takhrīj has preceded on page 166. (30) In M: "for another". (31) Omitted from: the original. (32) The correct view is that this is from the statement of ʿUmar, may Allāh be pleased with him.

السابقمجلد 6 · صفحة 171التالي
السابق6·171التالي