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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 14 · Page 329Section

Translation · EN

as a dowry, or that he had sold it to her, and they both presented two sets of evidence, the evidence of the woman is given priority for that reason. If there is no evidence, then the statement is the statement of the son along with his oath. We are not aware of any disagreement regarding this.

Section: If a man claimed that he had leased a house [within his home] to a man for a month for ten, and the man claimed that he had leased the entire house for ten for that month, and neither of them has evidence, then they have differed regarding the nature of the contract, [except that they differed] regarding the amount leased, so they must swear oaths to one another, and the ruling on mutual swearing (tahaluf) has already passed in the [chapter on] sale. Abu al-Khattab mentioned regarding a case where the seller claims he sold him this slave of his for ten, and the buyer said: "Rather, it and the other slave are for ten." The statement is that of the seller along with his oath. He did not establish a mutual swearing between them because the buyer is claiming a sale on the additional slave, which the seller denies, and the statement is that of the denier. This is like it. Therefore, based on this, the statement is the statement of the lessor along with his oath if evidence is lacking. If one of them presents evidence for his claim, it is ruled in his favor. If each of them has evidence, they contradict each other, whether they are absolute, or dated with the same date, or one of them is dated and the other is absolute; because a contract on the house as an individual unit and on the entire house at the same time is impossible. If we say: they both fall, the ruling regarding it is the same as if there were no evidence between them. And if we say: lots are drawn between them, we have already prioritized the statement of the one for whom the lot falls. This is the statement of the Qadi and the outward opinion of the school of Al-Shafi'i. According to the opinion of Abu al-Khattab, the evidence of the lessee is prioritized; because it testifies to an addition. This is the opinion of some of the companions of Al-Shafi'i. If it is said: Why did you not make both payments binding upon the lessee, as you said in the case where evidence was presented that he married her on Thursday for one thousand, and [the other evidence] was presented that he married her on Friday for one hundred: are both dowries obligatory? We say: In that case, it is possible for both dowries to be established, by him marrying her on Thursday, consummating the marriage, then khul'-divorcing her, then marrying her on Friday. As for the wage,

Notes

(13) In M: "iktra". (14) In M: "from a house". (15) Omitted from M. (16) Passed in: 8/141, 142. (17) In B: "the lessee". (18) Omitted from M. (19) In A, B, M: "other evidence".

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