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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 10 · Page 290

Translation · EN

This is a principle we have mentioned in the [chapter on] sale. He also holds another view: that if he returns it, he may reclaim the equivalent dower (mahr al-mithl). This principle was mentioned in the [chapter on] dower. If he khala'a-ed her for a garment described in terms of liability (fi al-dhimma), and he stipulated the conditions of a forward sale (salam), it is valid, and she is obligated to give it to him in perfect condition, for such an unqualified requirement implies soundness, as in sale and dower. If she gives it to him defective or lacking the mentioned qualities, he has the choice between keeping it or returning it and demanding a sound garment of that quality; for it was incumbent upon her in the dhimma as sound and complete in its qualities, so he may reclaim that which was due to him, as she did not give him what was owed to him. If he said: "If you give me a garment whose quality is such-and-such," and she gave him a garment of those qualities, she is divorced, and he owns it. If she gave it to him lacking a quality, the divorce does not take effect, and he does not own it; because the condition was not met. If it was of that quality but had a defect, the divorce takes effect because its condition was met. Al-Qadi said: He is given the choice between keeping it, or returning it and reclaiming its value. This is the view of al-Shafi'i, except that he has a view that he may reclaim the equivalent dower, as we have mentioned, and according to what we have said previously: that if he said, "If you give me a garment, or a slave, or this garment, or this slave," and she gave it to him defective, she is divorced, and he has nothing other than it. Ahmad has explicitly stated regarding one who said: "If you give me this thousand, you are divorced," that if she gave it to him and he found it defective, he has no replacement. He also said: "If he said, 'If you give me a slave, you are divorced,' then when she gives him a slave, she is divorced, and he owns it." This indicates that in every case where he said, "If you give me such-and-such," and she gave it to him, he has nothing else; this is because a person is not held liable for anything in their dhimma except by an obligation or an undertaking, and the Law (Shar') did not impose this upon her, nor did she undertake it for him; rather, he merely suspended her divorce upon a condition, which is her giving it to him, so nothing else is required of her. Furthermore, she did not enter into an exchange with him; she merely fulfilled the condition for the divorce, which is similar to if he had said: "If you enter the house, you are divorced," and she entered; or as if he had said: "If you give your father a slave, you are divorced," and she gave it to him.

Notes

(2) Previously in 6/229. (3) Previously on page 129. (4) Omitted from A, B, and M.

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