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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 6 · Page 506Section

Translation · EN

wives, concubines, or women from their unmarriageable kin are present with them in their house, it is permissible; for it does not lead to a prohibited act. If that is not the case, the condition is corrupt, because it leads to prohibited seclusion, and she is not safe from harm. However, the pledge does not become corrupt, because it does not return to a state of deficiency or harm regarding the rights of the contracting parties. The ruling in this case is the same as if he had pledged her without a condition: the pledge is valid, and the judge shall place her in the hands of someone with whom it is permissible for her to be. If the pledge is a male slave and he stipulates his location, it is permissible; if he does not stipulate his location, it is also valid, just like the slave-girl. It is possible [to argue] that it is not valid, because the slave-girl has a custom [of seclusion], unlike the male slave. The first view is more correct, for if the pledge-taker of a slave-girl is someone who it is permissible for her to be left with, it is like the male slave. And if the pledge-taker of a male slave is a woman who has no husband, and she stipulates that he be with her in a manner that leads to her seclusion with him, it is also not permissible, so they are the same.

Section: The second category consists of corrupt conditions, such as stipulating what conflicts with the requirements of the pledge, for instance, stipulating that the pledge not be sold upon the maturity of the right, or that the debt not be fulfilled from its price, or that what is feared to perish not be sold, or [stipulating] the sale of the pledge at any price whatsoever, or that he shall not sell it except for an amount that satisfies him. These are corrupt conditions due to their conflict with the requirements of the contract, as the intent [of the contract] is lost with the fulfillment of these conditions. The same applies if he stipulates an option (khiyar) for the pledger, or that the contract is not binding upon him, or [stipulates] a time limit for the pledge, or that it be a pledge for one day and not the next, or that the pledge be in the hands of the pledger, or that he [the pledger] benefit from it, or that the pledge-taker benefit from it, or that it be guaranteed by the pledge-taker or the trustworthy person. These are all corrupt; for some of them conflict with the requirements of the contract, and others are neither required by the contract nor part of its interests. If they both stipulate any of these in the pledge contract, the judge (al-Qadi) said: It is possible that the pledge becomes corrupt in every case because the contracting party only surrendered his property on the condition of this stipulation, so if it is not granted to him, the contract is not valid due to the lack of consent to it without it. It has been said: If he stipulates the pledge as time-bound, or pledges it for one day and not the next, the pledge is corrupted. As for whether it is corrupted by the rest of them, there are two views.

Notes

(20) Omitted from: Al-Asl.

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