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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 13 · Page 604

Translation · EN

This category is subdivided into several types. Among them is that where the restriction becomes famous, such as the word "dabba" (creature/beast). In reality, it is a name for everything that crawls, as God Almighty said: "And there is no creature (dabba) on the earth but that its provision is upon God." And He said: "Indeed, the worst of living creatures (dawab) in the sight of God are those who have disbelieved." In common custom, however, it is a name for mules, horses, and donkeys. Therefore, if a person were to bequeath to a man a "dabba" from among his animals, he would be entitled to one of these three. Thus, the apparent meaning is that the oath of the one who swears refers to common custom rather than reality when expressed absolutely, like the one preceding it. It is also possible that his oath encompasses the reality, based on their opinion regarding what we will mention, and based on the opinion of those who said regarding one who swears to refrain from eating meat that his oath encompasses fish. From this type is the case where one swears not to smell "rayhan" (sweet basil). In common custom, this is a name restricted to Persian basil, while in reality, it is a name for every plant or flower with a pleasant scent, such as the rose, violet, and narcissus. The Qadi said: He does not violate his oath unless he smells Persian basil. This is the school of al-Shafi'i, because the one who swears does not, in appearance, intend by his oath anything else. Abu al-Khattab said: He violates his oath by smelling whatever is called "rayhan" in reality, because the name encompasses it literally. He does not violate his oath by smelling fruit, according to one definitive opinion, because it is not called "rayhan" either in reality or by custom. Similar to this is if one swears not to smell a rose or a violet, then smells violet oil or rose water. The Qadi said: He does not violate his oath. This is the school of al-Shafi'i, because he did not smell a rose nor a violet. Abu al-Khattab said: He violates his oath, because the smelling is for the scent, not the substance, and the scent of the rose and violet is present in both. Abu Hanifa said: He violates his oath by smelling violet oil, because it is called violet, but he does not violate it by smelling rose water, because it is not called rose. The first is closer to being correct, God willing. If he smells dried rose or dried violet, he violates his oath. Some of the followers of al-Shafi'i said: He does not violate his oath, just as if he swore not to eat fresh dates (rutab) and then ate dried dates (tamr). Our evidence is that [its name and] its reality remain, so he violates his oath by it, just as if he swore not to eat meat and then ate dried meat (qadid). It differs from what they mentioned, as a dried date is not [a fresh date, nor is it called] a fresh date. If he swears not to eat roast (shiwa'), he violates his oath by eating

Notes

(16) Surah Hud, 6. (17) Surah al-Anfal, 55. (18) In M: "mukhtassin". (19) Omitted from M. (20) In M: "fa-hanatha".

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