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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 7 · صفحة 484

الترجمة · EN

is to cause harm to the purchaser, and harm is not to be removed by another harm. If he presents a pledge or a guarantor, the purchaser is not obliged to accept it, because there is harm in delaying the price, so the purchaser is not compelled to that, just as if he wanted to delay a due price. If he offers a substitute for the price, he (the purchaser) is not obliged to accept it, for it is an exchange, and he may not be forced into it. (20) When one takes by pre-emption, the purchaser is not obliged to deliver the share until he receives the price. If it is present, he delivers it, and if it is impossible in the moment, then Ahmad said, in a report by Harb: The pre-emptor is granted a respite of one or two days, to the extent that the judge sees fit, but if it is more than that, then no. This is the view of Malik. Ibn Shubruma and the companions of al-Shafi'i said: He is granted a respite of three days, as that is the last limit of brevity; if he produces the price, well and good, otherwise he (the judge) annuls it against him. Abu Hanifa and his companions said: He does not take by pre-emption, and the judge shall not issue a ruling for it until he produces the price, because the pre-emptor takes the share without the choice of the purchaser, so he does not deserve that except by producing (22) its compensation, like the delivery of the sold item. Our position is that it is an acquisition of the sold item (23) for compensation, so it does not depend on producing the compensation, just like a sale. As for delivery in a sale, delivery in pre-emption is the same, and the fact (24) that the taking occurs without the purchaser's choice indicates its strength, so it does not prevent its consideration for validity. If we grant him a respite for a period and he produces the price within it, then [it is settled]; otherwise, the judge annuls the taking and returns it to the purchaser. Likewise, if the pre-emptor flees after the taking. The more correct view is that the purchaser has the right of annulment without a judge, because the condition for the taking has been missed, and because it has become impossible for the seller to reach the price, so he has the right of annulment, like one from whom pre-emption was taken, and like if the pre-emptor becomes bankrupt. Furthermore, taking by pre-emption does not depend on the judge's ruling, so the annulment of the taking thereof does not depend on the judge, like the annulment of other sales, and like returning for a defect. Furthermore, making that dependent on the judge leads to harm to the purchaser, as it may be difficult for him to prove what he claims, and it may be difficult for him to attend the judge's session due to its distance, or

الحواشي

(20) In [B]: "to accept it". (21) In [B], [M]: "he said". (22) In the original, [M]: "to produce". (23) In the original: "the sold item". (24) In the original: "and it is".

مجلد 7 · صفحة 484
7·484
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