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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 14 · Page 304Section

Translation · EN

One of them is given precedence by lottery, according to one report. The second view is that the evidence of Salim is given precedence because it testifies to an addition, which is recovery. If the heirs admit the claim for one of them, he is emancipated by their admission, and the right of the other, from what we have mentioned, is not lost, unless two upright witnesses from among them testify to that, along with the absence of suspicion, in which case he is emancipated alone if the other has no evidence.

Section: If Salim claims that his master emancipated him during his death-illness, and his other slave Ganim claims that he emancipated him during his death-illness, and each of them is worth a third of his wealth, and each of them produces evidence for his claim, there is no contradiction between them; because what each piece of evidence testifies to does not negate what the other testifies to, nor does one of them declare the other false, so his emancipation of both is established. Then it is looked into: if the two pieces of evidence are dated with different dates, the first of them is emancipated, and the second remains in slavery, unless the heirs permit it; because if a sick person makes donations, and his third is insufficient for all of them, the first then the next is given precedence. If their dates coincide, or they are absolute, or one of them is, then they are equal; because there is no merit in one over the other, so they are equal, and a lottery is drawn between them. Whoever the lottery falls upon is emancipated, and the other remains in slavery, unless the heirs permit it; because it cannot be otherwise: either he emancipated them both together, so a lottery is drawn between them, as the Prophet (peace and blessings of Allah be upon him) did regarding the six slaves whose master emancipated them upon his death, and he had no wealth other than them, or he emancipated one of them before his companion and it became obscure to us, so it is determined by lottery, as in the problem of the bird. It was said: Half of each of them is emancipated. This is a view of al-Shafi'i; because it is closer to balancing between them. In the lottery, the predecessor who is entitled to emancipation might remain in slavery, and the second who is entitled to slavery might be emancipated, whereas in division, the one entitled to emancipation is not devoid of freedom, nor the one entitled to slavery devoid of slavery, and for this reason, we divided the matter in which there is disagreement in one of the two reports, when two pieces of evidence contradict each other regarding it. The first [view] is the school's position; because it is not devoid of ambiguity in the two forms we mentioned. The lottery is established in each one of them. As for their statement: "There is the possibility in the lottery of enslaving the free person," we say: "And in division, there is the enslavement of half of the free person with certainty, and the liberation of half of the slave with certainty, which is a greater harm." If the value of one of them is a third, and the value of the other is less than the third,

Notes

(72) Omitted from: A. (73) In the original: "is given a choice". (74) In the original: "is either". (75) Its verification has preceded in: 8/395. (76) In M an addition: "half".

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