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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 7 · صفحة 217

الترجمة · EN

He says: "You appointed me, and I gave you money." If the agent denies all of that, or confesses to the agency but denies that the money was delivered to him, his word is accepted, for the aforementioned reason. If a man says to another: "You appointed me to marry so-and-so on your behalf for such-and-such a dowry, and I have done so," and the woman claims that, but the principal denies it, his word is accepted. Ahmad stated this explicitly, saying: "If he produces evidence, it is well; otherwise, the other party is not bound by the marriage contract." Ahmad said: "And he is not made to take an oath." Al-Qadi said: "Because the agent is claiming a right on behalf of someone else." As for if the woman claims it, it is appropriate that he be made to take an oath, because she is claiming the dowry as a liability upon him. If he takes the oath, the dowry is not binding upon him, and nothing of it is binding upon the agent, because the woman's claim is against the principal, and the rights of the contract do not attach to the agent. Ishaq ibn Ibrahim narrated from Ahmad that the agent is liable for half of the dowry, because an agent in purchasing is a guarantor of the price, and the seller has the right to demand it from him; thus it is the same here. The first view is better for what we have mentioned. It differs from purchasing, because the price is the objective of the seller, and the custom is to expedite it and take it from the one conducting the purchase; marriage differs from this in every respect. However, if the agent guaranteed the dowry, she has the right to revert to him for half of it, because he guaranteed it on behalf of the principal, and he is acknowledging that it is his liability. Abu Hanifa, Abu Yusuf, and al-Shafi'i held this view. Muhammad ibn al-Hasan said: "The agent is bound by the entire dowry, because the separation did not occur due to his denial, so it remains established in the internal reality, and thus the entire dowry becomes obligatory." To us, he possesses the right to divorce; so if he denies [the marriage], he has acknowledged that she is forbidden to him, and he has become in the position of one who effects that by which she becomes forbidden. Ahmad said: "The woman should not marry until he divorces her, perhaps he is lying in his denial." The apparent implication of this is the prohibition of marrying her before he divorces her, because she acknowledges that she is his wife, so she is taken at her word through her acknowledgement, and his denial does not constitute a divorce. Is the principal obligated to divorce her? It is possible that he is not obligated, because no marriage has been established against him, and even if it were established, he would not be compelled to divorce. It is also possible that he is compelled to do so to remove the uncertainty and remove the harm from her by something in which there is no harm to him, making it similar to a corrupt marriage. If he claims that a certain absent person appointed him to marry a woman, and he married her on his behalf, then the absent person dies, she does not inherit from him.

الحواشي

(10) In M: "al-tafriqah". (11) In the original: "tazwij".

السابقمجلد 7 · صفحة 217التالي
السابق7·217التالي