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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 6 · صفحة 463

الترجمة · EN

al-Shafi'i. The second view is that it is valid regarding the hundred, and void regarding what is in excess of it; because the contract encompassed what is permissible and what is not permissible, so it was valid in what is permissible and not in the other, like the division of a transaction (tafriq al-safqa). This differs from the principles we mentioned, for the contract there did not encompass anything permitted at all. Furthermore, each of these matters relates to an interest (gharad) not found in the other, for the pledger might be able to redeem it immediately but not be able to do so at the term, and vice versa. He might be able to redeem it with one of the two types of currency but not the other, so the interest is lost by the deviation. In our case, if it is valid for the hundred that was permitted, the interest is not lost. If he leaves the pledge absolute in the permission without specifying it, the Qadi said: It is valid, and he may pledge it for whatever he wishes. This is the opinion of the People of Opinion (Ashab al-Ra'y) and one of the two views of al-Shafi'i. The other view is: It is not permissible until he clarifies the amount for which he is pledging it, its quality, and whether it is prompt or deferred; because this is in the position of a guarantee (daman), as the benefit of the slave belongs to his master, and the loan ('ariyya) did not provide that benefit; rather, it provided him a benefit whereby the pledge serves as a security for it. Thus, it is in the position of a guarantee upon his liability, and the guarantee of an unknown thing is not valid. To us, it is a loan, so it is not stipulated for its validity to mention that, like a loan for something other than a pledge. The proof that it is a loan is that he took possession of another's property for the benefit of himself, acting alone without compensation, so it was a loan, like taking possession of it for service. Their statement that it is a guarantee is not correct, because a guarantee is established in the liability, whereas this is established in the person of the slave, and because a guarantee is binding on the guarantor, while here [the owner] has the right to reclaim the slave before the pledge and compel the borrower to redeem it afterwards. Regarding their statement that the benefits belong to the master, we say: The benefits are distinct, so it is permissible for him to borrow it to obtain one benefit while the rest of the benefits remain for the master, as if he borrowed it to guard property while he simultaneously sews for his master or does something else for him, or borrowed it to sew for him while he guards property for his master. If it is said: If it were a loan, it would not be valid to pledge it; because a loan is not binding, and a pledge

الحواشي

(32) Omitted from A, M. (33) In M: "ruju'" (return/reclaiming).

السابقمجلد 6 · صفحة 463التالي
السابق6·463التالي