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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 7 · صفحة 454

الترجمة · EN

in a new opinion of his. It is reported from Ahmad, in a second narration, that the right of preemption is on a basis of delay (tarakhi) and does not lapse unless there is an act from him indicating consent, such as pardoning, requesting a division of the property, or similar actions. This is the view of Malik and an opinion of al-Shafi'i, except that Malik said: "It is extinguished by the passage of a year." It is also reported from him: "By the passage of a period of time during which it is known that he is abandoning it." This is because there is no harm in the delay of this option, so it does not lapse with postponement, like the right of retribution (qisas). The demonstration (2) of the absence of harm is that the benefit [of the delay] belongs to the buyer through the exploitation of the sold item. If he performs improvements upon it, such as planting or building, he is entitled to its value. It is reported from Ibn Abi Layla and al-Thawri that the option is limited to three days. This is [also] an opinion of al-Shafi'i (3); because three days were used as a limit for the option of condition (khiyar al-shart), so it is appropriate (4) as a limit for this option. Our argument is what was narrated by Ibn al-Baylamani, from his father, from Umar, who said: The Messenger of Allah (may Allah bless him and grant him peace) said: "Preemption is like untying the knot." In another wording, he said: "Preemption is like the quick release of a knot; if it is seized, it is established, and if it is abandoned, the blame is upon the one who abandoned it" (5). It is reported from the Prophet (may Allah bless him and grant him peace) that he said: "Preemption is for whoever leaps to claim it." The jurists have narrated this in their books (6). Furthermore, because it is an option for preventing harm to wealth (7), it is therefore on an immediate basis (fawran), like the option of returning a product due to a defect. Moreover, establishing it on a basis of delay harms the buyer, as his ownership of the sold item is not stabilized, and it prevents him from disposing of it by improving (8) it for fear that it will be taken from him. The harm is not repelled from him by paying its value, because the loss of the improvement is often greater than its value, along with the distress to his heart and body. The limitation to three days is an arbitrary determination for which there is no evidence.

الحواشي

(1) In M: "one of his two opinions". (2) In B: "and by the fact that". (3) In B and M: "al-Shafi'i". (4) In B: "fasahat" (so it became sound). (5) Narrated by Ibn Majah, in: The Chapter on Seeking Preemption, from the Book of Preemption. Sunan Ibn Majah 2/835. And by al-Bayhaqi, in: The Chapter on the Narration of Disavowed Wordings mentioned by some jurists regarding the issues of Preemption, from the Book of Preemption. Al-Sunan al-Kubra 6/108. (6) Mentioned by al-Hafiz Ibn Hajar, in: The Book of Preemption. Talkhis al-Habir 3/56, 57. And narrated by Abd al-Razzaq from the statement of Shurayh, in: The Chapter on the Preemptor Giving Permission before the Sale... from the Book of Sales. Al-Musannaf 8/83. (7) In B: "al-malik" (the owner). (8) In M: "bi-imarah" (with improvement).

السابقمجلد 7 · صفحة 454التالي
السابق7·454التالي