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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 8 · صفحة 177

الترجمة · EN

therein, as evidenced by what would happen if he intended it as a pen for sheep and built it with gypsum and bricks, dividing it into sections, for he would own it, even though such things are not typically done for sheep. The wall must be sturdy enough to act as a barrier to what is behind it and must be of the type customary for such structures. This varies according to different regions; if it is customary to use only stones, as is the case for the people of Hawran, Palestine, and others (3), or mud, as in the enclosures of the people of the Ghuta of Damascus, or wood or reeds, as with the people of the Jordan Valley, then that constitutes bringing to life. If he builds it to a higher standard than what is customary (4), it is even more appropriate. The Qadi said: There are two narrations regarding the method of bringing land to life. The first is what we have mentioned. The second is that bringing to life is whatever people customarily recognize as bringing to life, because the Shari'ah linked ownership to "bringing to life" without defining it or mentioning its exact nature. Therefore, it is necessary to refer to what is considered bringing to life by custom ('urf), just as when it arrived with provisions for "taking possession" and "protective covering" (hirz) without defining their nature, the reference returned to custom. Furthermore, if the Lawgiver links a ruling to a named entity, it is associated with its named definition according to the people of the language; likewise, the ruling is associated with what is named "bringing to life" according to the people of custom. Also, the Prophet (peace and blessings of Allah be upon him) would not link a ruling to something for which there is no way of knowing; since he did not define it, custom becomes the determined method for recognizing it, as there is no other way to know it. Once this is established, land may be brought to life for a dwelling, a pen, or a farm. Bringing each one to life is done by preparing it for the use intended for it. As for a dwelling, it is by building its walls as is customary and roofing it (5), because it is not habitable as a dwelling without that. As for a pen, its bringing to life is by a wall that is customary for its kind; roofing is not a condition for it, because the custom is to have that without a roof, regardless of whether he intended it as a pen for livestock, wood, firewood, or the like. If he dug a trench around it, it would not be bringing to life, because it is neither a wall nor a structure; rather, it is digging and destruction. If he hemmed it with thorns or similar items, it would not be bringing to life; it would be a form of "protecting" (tahajjur), because a traveler might descend to stop at a place and enclose his luggage with something similar to that.

الحواشي

(3) Omitted from B and M. (4) In B and M: "his custom". (5) In the original: "and its roof". In B and M: "and roofing it". Perhaps the correct version is what we have established.

السابقمجلد 8 · صفحة 177التالي
السابق8·177التالي