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المغني لابن قدامة - ت التركي
مجلد 7 · صفحة 329فصل

الترجمة · EN

Such as acknowledging a bequest, or the acknowledgement of one of two partners regarding the company's wealth. Furthermore, if the right had been established by evidence, the statement of the deceased, or the acknowledgement of [all] the heirs, he would not be bound by more than half of it. Therefore, he is not bound by more than half of it through his own acknowledgement, just as with a bequest. Moreover, his testimony regarding the debt alongside another would be accepted, whereas if he were bound by more than his share, [his testimony would not be accepted] (3); because he would be drawing a benefit to himself by it.

Section: If two men claim a house [that is] between them, and they possess it for a reason that necessitates common ownership (4), such as if they say: "We inherited it," or "We bought it together," and the defendant acknowledges half of it for one of them, then that [half] belongs to both of them; because they both acknowledged that the house is jointly owned by them. Thus, if a usurper usurps half of it, it is from both of them, and the remainder is between them. However, if they did not claim anything that necessitates common ownership, but rather each of them claimed half of it, and he [the defendant] acknowledged for one of them what he claimed, the other shall not share it with him, and he [the claimant] must litigate against him; because they did not acknowledge common ownership. If he acknowledges the whole for one of them, and the one for whom it is acknowledged confesses to the other's half, he must deliver it to him. Likewise, if his acknowledgement of that had preceded [the claim], it would be mandatory to deliver the half to him; because the one who is in possession [of the property] has acknowledged it to him, so he becomes in his position, and thus it is established for whomever he acknowledges it. If he did not acknowledge it for the other, and he [the claimant] claimed the whole of it, or claimed more than half, it is his. If it is said: "How can he possess the whole of it while he only claimed half of it?" We say: It is not a condition for the validity of an acknowledgement that the claim must precede it. Rather, whenever a person acknowledges something and the one to whom it is acknowledged confirms it, it is established. Confirmation has been found here in (5) the half for which no claim had preceded. It is possible that he restricted his claim to a thousand [units of currency] because he has evidence for it, or because he [the defendant] already acknowledged the other half for him, so he claimed the half that he had not acknowledged. If he does not confirm his acknowledgement regarding the half he did not claim, and he does not acknowledge it for the other [claimant], there are three views regarding it: The first is that the acknowledgement for it is void; because he acknowledged it for one who does not (6) claim it. The second is that the judge shall remove it [from his possession] (7)

الحواشي

(3) Omitted from the Original. (4) In the Original: "the company". (5) Omitted from the Original, A, B. (6) Omitted from A, B, M. (7) Omitted from A, B.

السابقمجلد 7 · صفحة 329التالي
السابق7·329التالي