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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 13 · Page 569Section

Translation · EN

which necessitates his oath, such as if the cause was her showing favor to him by it, and then he owned the house, or it became someone else's property, and he then dwelled with her in it, does he violate the oath? There are two views, the mention and legal reasoning of which have already preceded.

Section: If he swears not to enter upon her [into a house, and he enters upon her] in a place that is not a house, then its ruling is the ruling of the issue preceding it; if he intended to shun her, and there was no cause relating to the house that provoked his oath, he violates the oath; otherwise, he does not. If he enters upon a group among whom she is, intending to enter upon her along with them, he violates the oath, and likewise if he did not intend anything. If he exempted her in his heart, there are two views; one of them is that he does not violate the oath, just as if he swore not to greet her, then greeted a group among whom she is, intending in his heart the greeting to be for others besides her, for he does not violate it. The second is: He violates it, because entering is an action that cannot be distinguished, so it is not valid to specify it by intention, and it has occurred in regards to everyone equally, and she [is among them, so he violates the oath] by it, just as if he had not intended to exempt her. It differs from the greeting; for that is a statement, the specification of which is valid through intention. This is why it is valid to say: "Peace be upon you, except so-and-so." But it is not valid to say: "I entered upon you, except so-and-so." Also, because the greeting is a statement encompassing what the pronoun in "upon you" encompasses, and the pronoun is general, and it is valid for the specific to be intended by it, so it is valid for those other than her to be intended. An action does not admit of this. If he enters a house not knowing she is in it, [and finds her therein], he is like one who enters upon her out of forgetfulness. If we say: He does not violate the oath by that, and he leaves [when he knows of her], he does not violate the oath. [Likewise, if he swears not to enter upon her, and she enters upon him, and he leaves immediately, he does not violate the oath.] If he remains, does he violate the oath? There are two views.

Notes

(14) Omitted from M. Needs examination. (15) In M: "fa-hukmuhu" (its ruling). (16) In M: "idha" (if). (17) In M: "al-bayt" (the house). (18) In [an additional manuscript]: "qasada" (he intended). (19) In M: "fihim fa-hanitha" (among them, so he violates the oath). (20) In M: "yuqal" (it is said). (21) In B and M: "yatanaawuluhu" (encompasses it). (22) Omitted from A and B. (23) In B: "fi al-hal" (immediately). (24) Omitted from B. Needs examination.

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