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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 7 · صفحة 361

الترجمة · EN

differed regarding some of its branches. Once this is established, whoever usurps something is obligated to return it, as long as it remains, without any disagreement that we are aware of. This is due to the saying of the Prophet (peace and blessings of Allah be upon him): "The hand must return what it has taken until it restores it." Furthermore, the right of the one from whom the property was usurped is attached to the essence of his wealth and its monetary value, and this is not realized except by its return. If it is destroyed while in his possession, he is obligated to provide its substitute, due to the saying of Allah the Exalted: "So whoever has assaulted you, then assault him in the same way that he has assaulted you" (Quran 2:194). Also, because when returning the actual item becomes impossible, it becomes mandatory to return that which takes its place in terms of monetary value. Then, one must look: if it is from that whose parts are equal and whose qualities do not vary, such as grains and oils, then its equal (mithl) is mandatory, because the equal is closer to it than the price, as it is equivalent to it by way of form, observation, and meaning, whereas the price is equivalent by way of conjecture and ijtihad (legal reasoning). Thus, that which is determined by way of observation is prioritized, just as the revealed text (nass) is prioritized over analogy (qiyas), because the path of the text is perception through hearing, while the path of analogy is conjecture and ijtihad. If it is not of equal qualities—which is anything other than what is measured by volume or weight—its price (qimah) becomes mandatory, according to the opinion of the group (the majority). It was narrated from al-'Anbari: "The equal is mandatory in everything." This is due to what Jasra bint Dajaja narrated from 'Aisha (may Allah be pleased with her), who said: "I have never seen a maker like Hafsa. She prepared food and sent it to the Prophet (peace and blessings of Allah be upon him), and I was seized by the afkal (trembling), so I broke the vessel. I said: 'O Messenger of Allah, what is the expiation for what I have done?' He replied: 'A vessel like the vessel, and food like the food.'" Narrated by Abu Dawud. And from Anas, that one of the wives of the Prophet (peace and blessings of Allah be upon him) broke the dish of another, so the Prophet (peace and blessings of Allah be upon him) handed the dish of the one who broke it to the messenger of the owner of the broken one, and kept the broken one in his house. Narrated by Abu Dawud in a lengthy form, and it was narrated by

الحواشي

(7) Its verification has preceded on page 342. (8) In [MSS] B and M: "attached" (mu'allaq). (9) Surah Al-Baqarah, 194. (10) Omitted from the original (al-asl). (11) Al-afkal: shivering from cold or fear, and the intent here is from jealousy. (12) In: The Chapter on Whoever Destroys Something Must Pay for Its Equal, from the Book of Transactions. Sunan Abi Dawud 2/267. It was also narrated by Al-Nasa'i, in: The Chapter on Jealousy, from the Book of Women's Affairs. Al-Mujtaba 7/66. And Imam Ahmad, in: The Musnad 6/148, 277.

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