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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 9 · صفحة 487

الترجمة · EN

he stipulated in the contract an unlawful dowry. Furthermore, because marriage is valid even with ignorance of the compensation, it is permissible for it to be concluded with an invalid condition, just like manumission (itq). Ahmad has explicitly stated, regarding a man who married a woman and stipulated that he would spend every Friday night with her, then she changed her mind and said: "I am not satisfied with anything except [alternating] night by night." He said: "She may concede out of her own good pleasure, for that is permissible." If she says: "I am not satisfied with anything except equal division [of nights]," that (19) is a right that she possesses, which she may demand if she wishes. Al-Athram reported from him, concerning a man who marries a woman and stipulates that he will come to her on specific days: "The condition is permissible; if she wishes, she may retract [her consent]." And he said concerning a man who marries a woman on the condition that she provide him with five or ten dirhams every month: "The marriage is valid, and she may retract [her consent] regarding this condition." It has been reported from Ahmad regarding some of these conditions that they might entail the invalidation of the contract. Al-Marrudhi reported from him regarding "daytime marriages" and "nighttime marriages": "This is not from the marriage of the people of Islam." Among those who disliked the contracting of daytime marriages were Hammad ibn Abi Sulayman and Ibn Shubruma. Al-Thawri said: "The condition is void." The scholars of reason (Ashab al-Ra'y) said: "If she asks him to be equitable with her, he shall be equitable." Al-Hasan [and 'Ata' did not see any harm in daytime marriages. And Al-Hasan] (20) did not see any harm in marrying her on the condition that he allocates for her known days of the month. Perhaps the dislike of those who disliked it relates to the invalidation of the condition, and the permission of those who permitted it relates to the essence of the marriage; thus, their statements would be in agreement on the validity of the marriage and the invalidation of the condition, as we have stated. And Allah knows best. The Judge (al-Qadi) said: Ahmad only disliked this marriage because it takes place in secrecy, and secret marriage is prohibited. If it is stipulated against him that he must refrain from intercourse, it is possible that the contract becomes invalid, because it is a condition that contradicts the purpose of marriage. This is the school of al-Shafi'i. Likewise, if it is stipulated against him that she shall not be surrendered to him, it is in the same status as if one purchased something on the condition that he shall not take possession of it (22). And if he stipulates against her that he will not have intercourse with her, it does not become invalid; for intercourse is his right over her, and she does not possess the authority to deny it to him. It is also possible that it would become invalid, because she has a right in it, and that is why she possesses the authority to demand it when

الحواشي

(19) In the original: "fa-in" (for if). (20) Omitted from: B. (21) In B and M: "fi" (in). (22) In B: "yaqtadihi" (it requires it).

السابقمجلد 9 · صفحة 487التالي
السابق9·487التالي