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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 6 · Page 528Section

Translation · EN

Section: If a slave is in a man's possession, and he says, "You pledged this slave of yours to me for one thousand," while he says, "Rather, you usurped him, or you borrowed him," the statement is that of the master, whether he confesses to the debt or denies it; because the original state is the absence of a pledge. If the master says, "I sold you this slave of mine for one thousand," and he says, "Rather, you pledged him to me for it," the statement is that of each of them regarding the contract that he denies, and the master takes back his slave. The same applies if he says, "I pledged him to you for one thousand which you loaned me," and he says, "Rather, you sold him to me for one thousand which I paid to you as the price." It is the same: the owner of the slave returns the one thousand and takes back his slave.

Section: If he makes a claim against two men, saying, "You both pledged your slave to me for the debt I am owed by you," and they both deny it, their statement is accepted. If each of them testifies against the other, his testimony is accepted if he is of upright character (adl), and the pledgee may take an oath along with each of them, and it all becomes a pledge, or he may take an oath with one of them, and the share of the other becomes a pledge. If one of them confesses, it is established regarding him alone. If the confessor testifies against the denier, his testimony is accepted if he is of upright character; because he does not gain any benefit for himself, nor does he deflect any harm from himself. This is the opinion of the companions of al-Shafi'i. Some of them said: If they both deny it, there is room for scrutiny regarding their testimony; because the one in whose favor testimony is given claims that each of them has wronged him by denying his right to the pledge, so if the one in whose favor testimony is given impugns his own witnesses, their testimony is not accepted for him. We say: This is not correct; for the denial of a claim does not establish the depravity (fisq) of the defendant. Even if the right is indeed against him, it is possible that he forgot, or that a doubt (shubha) occurred to him regarding what he is claiming or denying. Likewise, if two men lay claim to something and dispute over it, then they testify before the judge regarding something, their testimony is not rejected, even if one of them is lying in his opposition to the other. If depravity were established by that, it would not be permissible to accept the testimony of both of them, with the certainty of defamation against one of them.

Section: If one pledges a specific item to two men, then half of it is a pledge to each of them for his debt. Whenever he satisfies one of them, his share is released from the pledge; because the contract of one person with two is in the position of

Notes

(4) In [manuscripts] A and M: "harm (dararar" (darran).

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