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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 6 · Page 508Section

Translation · EN

it is a pledge with a corrupt condition, therefore it is corrupt, just as if he had stipulated its fulfillment. There is no [evidence] in the report that he stipulated that at the beginning of the contract, so there is no proof in it.

Section: If the debtor says: I have pledged to you this slave of mine, on the condition that you increase my term, it is void, because the term is not established in a debt unless it is stipulated in a contract by which it became mandatory. If the term is not established, the pledge is not valid, because he made it in exchange for it, and because that resembles the usury of the Pre-Islamic era (Riba al-Jahiliyyah), as they used to increase the debt to increase the term.

Section: If he is owed a thousand by a man, and the man says: Lend me a thousand, on the condition that I pledge to you this slave of mine for the two thousand. Hanbal narrated from Ahmad that the loan is void. This is the school of al-Shafi'i, because it is a loan that draws a benefit, which is the security for the first thousand. If the loan is void, the pledge is void. If (23) it is said: Is it not that if he stipulated that he would give him a pledge for what he borrows, it would be permissible? We say: This is not a loan that draws a benefit, because the extent of what he obtained is the confirmation of the fulfillment of the replacement of what he lent him, which is the equivalent of it. A loan entails the obligation of fulfillment, while in our issue, he stipulated in this loan security for his first debt, so he has stipulated security for something other than what the loan entails. Muhanna narrated that the loan is valid, and perhaps Ahmad ruled for the validity of the loan despite the corruption of the condition, so that it would not lead to drawing a benefit from the loan, or he ruled for the corruption of the pledge regarding the first thousand alone and validated it for what is beyond that. If there were a sale in place of the loan, and he said: Sell me this slave of yours for a thousand, on the condition that I pledge to you my slave for it and for the other thousand that I owe you, then the sale is void, according to one narration, because the price is unknown, as he made the price a thousand and a benefit that is a security for the first thousand, and that benefit is unknown. Also, because he stipulated a contract of pledge for the first thousand, so it is not valid, just as if he had isolated it, or as if he sold him his house on the condition that the other sell him his house.

Notes

(23) In MS (m): "fa-idha" (so if).

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