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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 10 · Page 465Section

Translation · EN

the Exalted: "It is not for any human that Allah should speak to him except by revelation or from behind a veil or by sending a messenger" (56). And because the intention in abandoning speaking to him is to shun him, and that does not occur while maintaining contact with him through messengers and letters. It is possible that he does not commit a breach unless he intends to abandon that, because this is not speaking in reality. If he swore that he would definitely speak to him, he would not fulfill his oath by that, unless he intended it, so likewise, he does not commit a breach by it. If he swore not to speak to him, and sent a person to ask the scholars about an issue or a hadith, and the messenger came and asked the one sworn about, he does not commit a breach by that. If he swore not to speak to his wife, then had intercourse with her, he does not commit a breach, unless his intention was to shun her. Ahmad said, regarding a man who said to his wife: "If I speak to you for five days, you are divorced." Is it permitted for him to have intercourse with her and not speak to her? He said: What was the beginning of this, did it displease her or anger her? If he had no intention, then he is permitted to have intercourse with her and not speak to her. If he swore not to read a book of so-and-so, and he read it to himself without moving his lips with it, he commits a breach, because this is the reading of books in people's custom, so his oath is directed to it, unless he intends the literal act of reading. Ahmad said: If he swore: "I will not read a book for so-and-so," and he opened it until he finished the end of it, but did not move his lips, if he intended not to know what is in it, he has indeed known what is in it and read it.

Section: If he said to his wife: "If I begin speaking to you, you are divorced," and she said: "If I begin speaking to you, my slave is free," his oath is invalidated, because when she addressed him with her oath, she missed the beginning with her speech, and her oath remains suspended. If he begins with speech to her, her oath is also invalidated, and if she begins with him, her slave is freed. This is how our companions mentioned it. It is possible that if he begins speaking to her (58) at another time, he commits a breach, because that is called a beginning, so his oath covers it, unless he intends to renounce the beginning at this time or in this gathering, and thus restricts it to that.

Section: If he said to his two wives: "If you both speak to these two men, you are both divorced," and each one of them spoke to one man, there are two opinions on this: one is that he commits a breach, because speaking to them occurred from them, so he commits a breach, just as if he had said: "If you both menstruate, you are both divorced," and each one menstruates one period. The same applies if he said: "If you both ride your two animals, you are both divorced," and each one rides her animal. The second opinion is that he does not commit a breach until each one of them speaks to the two men together, because he suspended their divorce on their speaking to them, so one does not divorce by the speech of the other alone. This is the clearer of the two opinions for the companions of al-Shafi'i. The same applies if (59) he said: "If you both enter these two houses," the ruling on it is the same as the first. This is for matters in which it is not customary for a single person to act alone, but as for that where custom dictates the singularity of one person with one matter, such as: they both rode their two animals, they both put on their two garments, they both girt their two swords, they both took their two spears, and they both entered with their two wives, and similar to this, he commits a breach when it is found that they are both separated. As for that in which custom does not dictate that, it is subject to the two opinions. [And Allah knows best] (60). If he said: "If you both eat these two loaves," and each one of them eats one loaf, he commits a breach (61); because it is impossible for each one of them to eat both loaves, unlike the two men and the two houses.

Notes

(56) Surah al-Shura: 51. (57) In A, B, and M: "li-annahu" (because he). (58) In A: "bi-kalam" (with speech).

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