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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 8 · صفحة 46فصل

الترجمة · EN

from the side of the deceased, so he owns nothing except what he left behind, and what he disposed of during his lifetime does not pass to the heir. The benefits that he leased have already exited his ownership due to the lease, so they do not pass to the heir. The second generation in the endowment (waqf) owns [the benefits] from the side of the endower, so whatever occurred regarding them after the first generation was their property. Thus, the lessor's disposal occurred regarding their property without their permission, and he has no authority over them, so it is invalid. It is also inferred that the entire lease is voided, based on the principle of splitting the contract (tafriq al-safqah). This detail is the school of al-Shafi'i. Consequently, if the lessor collected the entire rent and we say: the lease is voided, then the one to whom the endowment passed may take it, and the lessee may have recourse against the heirs of the lessor for the portion of the rent remaining. If we say: it is not voided, the one to whom the endowment passed has recourse against the estate for his share.

Section: If a guardian leases a child or his property for a period, and he reaches puberty during it, Abu al-Khattab said: He has no right to rescind the lease, because it is a binding contract which he concluded by the right of guardianship, so it is not invalidated by puberty, just as if he had sold his house or arranged his marriage. It is possible that the lease is invalidated for the period after the guardianship ceases, based on what we mentioned regarding the lease of an endowment. It is possible to distinguish between a case where he leases it for a period during which his reaching puberty is certain, such as if he leases it for two years while he is fourteen, so it is invalidated at sixteen, because we are certain that he leased it for a period after his puberty. And whether it is valid in the fifteenth year? There are two opinions, based on the principle of splitting the contract. And [distinguish] between a case where his reaching puberty during it is not certain, such as one who leases it in the fifteenth year alone, and he reaches puberty during it, so there is in it what we have mentioned at the beginning of the section. This is because if we said: the child is bound [after puberty] by the guardian's contract for a period during which his puberty is certain, it would lead to him contracting away all of his benefits for his entire life, and to him disposing of him outside the time of his authority over him. It does not resemble marriage; because it

الحواشي

(14) In B: "thereof". (15) Omitted from: the original. (16) In the original, there is an addition: "upon". (17) Omitted from: B, M.

السابقمجلد 8 · صفحة 46التالي
السابق8·46التالي