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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 6 · Page 325

Translation · EN

And if he profits from it, or takes anything from its earnings, it belongs to him. And if the sold item dies, the seller may return to the buyer for what the condition of manumission decreased its value; so it is said: How much is its value if sold absolutely? And how much is it worth if sold with the condition of manumission? Thus, he returns [a portion] of its price, according to one of the two views. In the other, he is liable for what was decreased from its value. The second type is that he stipulates other than manumission, such as stipulating that he shall not sell it, nor gift it, nor manumit it, nor have intercourse with it, or he stipulates to him that he must sell it, or dedicate it as a waqf, or that whenever the sold item is consumed it must be returned, or that if a usurper usurps it he may return to him for the price, [or if] he manumits it the wala' (patronage) belongs to him. These and what resembles them are corrupt conditions. Does the sale become corrupt by them? There are two narrations. The Qadi said: The text reported from Ahmad is that the sale is valid, which is the apparent meaning of the words of al-Khiraqi here. It is also the opinion of al-Hasan, al-Sha'bi, al-Nakha'i, al-Hakam, Ibn Abi Layla, and Abu Thawr. The second [narration] is that the sale is corrupt, which is the opinion of Abu Hanifah and al-Shafi'i; because the Prophet (peace and blessings of Allah be upon him) forbade a sale accompanied by a condition. And because it is a corrupt condition, so it corrupts the sale, just as if he had stipulated another contract within it. And because if the condition is corrupt, it is necessary to return what the condition decreased from the price, and that is unknown, so the price becomes unknown. And because the seller was only pleased with the removal of his ownership of the sold item upon his condition, and the buyer is likewise if the condition is for him; so if the sale were valid without it, his ownership would cease without his consent, and part of the condition of a sale is mutual consent. As for our evidence, it is what Aishah narrated: She said: Barirah came to me and said: I have entered into a mukatabah (manumission contract) with my family for nine awaq (ounces of silver), one uqiyah every year, so help me. I said: If your family likes that I pay it to them all at once, and that your wala' belongs to me, I will do it. Barirah went to her family and told them, but they refused, so she came from them while the Messenger of Allah (peace and blessings of Allah be upon him) was sitting, and she said: I offered it to them, but they refused, unless the wala' remains for them.

Notes

(13) In the original, there is an addition after this: "bima". (14) In M: "wa in". (15) Dropped from: M. (16) In M: "madhhab". (17) Its documentation was mentioned previously on page 165, 166. (18) In M: "fasid".

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