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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 9 · صفحة 450

الترجمة · EN

because his parents are slaves. This is not correct, for he had intercourse with her believing her to be free, so his child is free, like the child of a free person; for this is the reason (illa) necessitating freedom in a case of consensus. Were it not for this, he would be a slave, for the cause of a child's slavery is solely the mother's slavery, and the father's status is of no consequence, as evidenced by the child of a free man from a slave woman, and the child of a free woman from a slave man. The slave is liable for their ransom, because he caused the loss of their servitude by his belief and his act, and since he possesses no wealth at the time, two views are derived regarding this: One, that it attaches to his person, similar to his crime (jinaya). Second, that it is a debt upon his liability, to be pursued after his emancipation, similar to the compensation for khul' from a slave woman when she offers it without the permission of her master. This differs from taking on debt or committing a crime; for when he takes on debt, he consumes the creditor's wealth, so it is a crime on his part, whereas here, he did not commit a crime against the children, for they became free by way of legal ruling, and what he obtained in exchange for them constitutes compensation, thus it is a debt upon his liability to be pursued after emancipation. He shall have recourse for it when he pays it, for it is not appropriate that he be required to pay for that which was not lost to him. As for freedom, it is immediate. If we say that the ransom attaches to his person, it becomes due immediately, and his master may have recourse against him immediately, and the slave is granted the option when he learns of it, just as it was granted to the free man for one whose marriage to slave women is permissible; because he suffers harm in the servitude of his child and a reduction in his enjoyment, for she does not spend the night with him, and he did not consent to that. It is possible that no option is established for him, because he has missed a quality that does not reduce her from his rank, so it resembles the case where he stipulates the lineage of a woman and she turns out otherwise; because she is equal to his lineage, unlike the deception of a free man. Some Shafi'is said: He has no option, in one single view. Others said: There are two views. The preferred view is what we have mentioned. When he chooses to remain, the dower is obligatory and he has no recourse against anyone for it. If he chooses rescission before consummation, there is no dower. If it is after and the marriage was with his master's permission, the dower is obligatory upon him, and there is a disagreement regarding seeking recourse for it which we have mentioned previously. If it was without his permission, the marriage is corrupt, and if he consummated with her, then regarding the amount due upon him

الحواشي

(1) In A and M: 'al-hurr'. (2) Omitted from the original. (3) In B: 'yathbut'. (4) In A and B: 'tatabawwa''. (5) In M: 'yanquf'.

السابقمجلد 9 · صفحة 450التالي
السابق9·450التالي