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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 6 · Page 417Section

Translation · EN

a substitute of less value, and do not profit twice." It was narrated by Sa'id in his "Sunan." Our evidence is the statement of the Prophet (peace and blessings of Allah be upon him): "Whoever pays a Salam for something, let him not exchange it for something else." Narrated by Abu Dawud and Ibn Majah. Furthermore, taking a substitute for the Salam object is a sale, so it is not permitted, just like selling it to someone else. However, if he gives him, from the same genus as what he paid the Salam for, something better or lesser in quality, it is permitted; for that is not a sale, but rather a fulfillment of the right with an act of grace from one of them.

Section: As for rescission (iqala) regarding the Salam object, it is permitted, because it is a dissolution (faskh). Ibn al-Mundhir said: All the scholars whom we have memorized have agreed that rescission in all that has been paid as a Salam is permitted, because rescission is a dissolution of the contract and an annulment of it from its inception, and it is not a sale. The Qadi said: If he says, "I have this food with you, settle with me for its price," it is permitted, and it is a valid rescission. As for rescission in only part of the Salam object, there are different reports from Ahmad regarding it. It was narrated from him that it is not permitted, and the dislike (karaha) of it was reported from Ibn Umar, Sa'id ibn al-Musayyib, al-Hasan, Ibn Sirin, al-Nakha'i, Sa'id ibn Jubayr, Rabi'ah, Ibn Abi Layla, and Ishaq. Hanbal narrated from Ahmad that he said: "There is no harm in it." This has also been reported from Ibn Abbas, 'Ata', Tawus, Muhammad ibn Ali, Humayd ibn 'Abd al-Rahman, 'Amr ibn Dinar, al-Hakam, al-Thawri, al-Shafi'i, al-Nu'man and his companions, and Ibn al-Mundhir. This is because rescission is recommended, and every virtuous act that is permitted for the whole is permitted for a part, such as releasing from liability (ibra') and granting a delay (inzhar). The basis for the first report is that in a Salam contract, the price is often increased due to the deferment; so if he rescinds it for a part, the remaining part stays at the remaining price and with the benefit of the portion in which the rescission took place, so it is not permitted, just as if he had stipulated that at the beginning of the contract. The release from liability (ibra') and the granting of a delay (inzhar) are analogous to this, for nothing of that kind is associated with them.

Notes

(6) In the original and [manuscript] A: "substitute ('ardan)". [This is] a corruption [of the text]. (7) Recorded by Abu Dawud in: The Chapter of Salam Cannot Be Transferred, from the Book of Sales, Sunan Abi Dawud 2/247; and by Ibn Majah in: The Chapter of Whoever Pays a Salam for Something Should Not Exchange It for Something Else, from the Book of Trade, Sunan Ibn Majah 2/766. (8) Meaning the transmission. (9) In the original: "stipulated (sharat)".

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