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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 7 · صفحة 77

الترجمة · EN

possession, it becomes binding on his guarantor, just as in the case of usurped items (maghsub) and items held under loan ('ariyya). In reality, this is a guaranty of something not yet obligatory, and we have already explained its permissibility. It is valid to guarantee the covenant of sold goods (uhdat al-mabi') on behalf of the seller for the buyer, and on behalf of the buyer for the seller. A guaranty on behalf of the buyer is that he guarantees the price made obligatory by the sale before its delivery, and if a defect appears in it or it is claimed by another (mustahaq), he may seek recourse for that from the guarantor. A guaranty on behalf of the seller for the buyer is that he guarantees the price on behalf of the seller whenever the sold item turns out to be claimed by another, is returned due to a defect, or for the indemnity (arsh) of a defect. Thus, the guaranty of the covenant (uhda) in both cases is a guaranty of the price, or a portion thereof, by one of them for the other. The reality of the "covenant" (uhda) is the document in which the record of the sale is written, and in which the price is mentioned, so it is used as an expression for the price he is guaranteeing. Among those who permitted the guaranty of the covenant in general are Abu Hanifa, Malik, and Al-Shafi'i. Some Shafi'is prohibited it on the grounds that it is a guaranty of what has not yet become obligatory, a guaranty of something unknown, and a guaranty of a specific physical item. We have already explained the permissibility of the guaranty in all these cases. Furthermore, there is a need for documentation (wathiqa) against the seller, and documentations are of three types: testimony, pledge (rahn), and guaranty (daman). As for testimony, the right cannot be fulfilled by it. As for the pledge, it is not permissible in this case by consensus, because it would lead to it remaining pledged forever, so nothing remains but the guaranty. Furthermore, he does not guarantee anything except what was obligatory at the time of the contract, for a legal ruling only attaches to the guaranty if the item turns out to be claimed by another or defective at the time of the contract. Whenever it is so, he has guaranteed what was obligatory at the time of the contract, and uncertainty is excluded, for he guaranteed the entirety, and if a portion turns out to be claimed by another, he becomes liable for a portion of what he guaranteed. Once this is established, it is valid to guarantee the covenant on behalf of the seller for the buyer both before and after the price is received. Al-Shafi'i said: It is only valid after receipt, because before receipt, if it turned out to be claimed by another, nothing would be obligatory upon the seller. This relies upon the [validity of the] guaranty of what has not yet become obligatory when it leads to obligation, such as a reward for a task (ju'ala). The formulas for the guaranty of the covenant are for him to say: "I have guaranteed its covenant, its price, or its liability (darak)," or he says to the buyer: "I have guaranteed your safety/release (khalas) from it," or he says: "Whenever the sold item turns out to be claimed by another, I have guaranteed the price to you." It is narrated from Abu Yusuf that he said: "I have guaranteed

الحواشي

(26) In B: "falazimahu" (it became binding upon him). (27) In B: "kal-maghsub" (like the usurped item).

السابقمجلد 7 · صفحة 77التالي
السابق7·77التالي