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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 10 · Page 489Section

Translation · EN

Section: If he swears, "You shall not take your right from me," and he is coerced into paying it to him, and he takes it from him by force, he has broken the oath, because the object of the oath is the act of taking, and he has taken it voluntarily. If the owner of the right is coerced into taking it, it is classified under the two views regarding one who is coerced into arriving. If the one who swore the oath places it in his lap, or in front of him, or beside him, and he does not take it, he has not broken the oath, because the taking did not occur. If the judge or the ruler takes it from the debtor and pays it to the rightful claimant and he takes it, the Qadi said: He does not break the oath. This is the school of al-Shafi'i, because he did not take it from him. If he said, "You shall not take your right that is against me," he has broken the oath, because he has taken his right that was against him. The explicit statement from Ahmad is that he breaks the oath in both scenarios. Abu Bakr stated this, and it is what his school requires, because oaths according to him are based on the causes, not on the names; and because if he appointed an agent and he took it from him, he would be considered an "acquirer" of his right from him by custom, and he would be called an "acquirer." Allah the Almighty said: "And We took from them a solemn covenant" [An-Nisa: 154]. And He said: "And Allah had taken the covenant of the Children of Israel, and We delegated from among them twelve leaders" [Al-Ma'idah: 12]. If the oath is from the owner of the right, and he swore: "I will not take my right from you," then the ruling regarding it is like the one before it. If the debtor leaves it among goods in a bag, then hands the bag to the one who swore the oath, and he takes it without knowing that it is inside, he has not broken the oath, because this is not counted as taking, nor is the debtor absolved of it thereby. If the oath was, "I will not give you your right," and the judge takes it from him by force and pays it to the claimant, he has not broken the oath. If he coerces him into paying it to him, and he pays it, it is classified under the two views regarding the coerced person. If he gives it voluntarily, he has broken the oath. If he places it in his lap, or his pocket, or his chest while he knows, he has broken the oath, because he gave it to him. If he pays it to the judge voluntarily, so that he may pay it to the claimant, and he pays it, or he takes it from his wealth voluntarily,

Notes

(16) In M: "qāla" (he said). (17) Sūrat al-Nisāʾ 154. (18) Sūrat al-Māʾida 12. (19) In B, an addition: "an" (that). (20) In the margin of A, an addition: "iyyāhu" (him). (21) In A: "ilayhi" (to him).

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