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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 6 · Page 550Section

Translation · EN

is invalid. For the repelling of harm from him through another method does not prevent him from taking his right from the substance (the item itself). Even if he were entitled to the increase, his right to it would not lapse due to the ability to take the value, just as in the case of the purchaser of a defective item. Furthermore, it would have been appropriate for him to take the value of the substance as increased, because the increase was his right; since this was not the case, it is known that the reason preventing reclamation is that the increase belongs to the woman and that it is impossible to separate it. This is the same here, or even more so; for the right of the insolvent person and the creditors is attached to the increase. Thus, preventing the purchaser from taking an increase that is not his is more appropriate than causing it to be lost to the creditors who have not received the entirety of their debts, and to the insolvent person who is in need of clearing his liability during the time of his dire need.

Section: As for the report, it is interpreted as applying to one who finds his property in its original state, not having increased, and to which no other right has become attached. Here, however, the rights of the creditors have attached to it due to the increase it contains, for the reason we have mentioned. This is confirmed by the fact that if the destruction of part of the sold item is a barrier to reclamation without any harm befalling the insolvent person or the creditors, then it is more appropriate that an increase in it be a barrier, especially with its loss through reclaiming it from them. Furthermore, when he reclaims the deficient item, he only reclaims what he sold and what has left his possession, whereas when he reclaims the increased item, he takes what he did not sell and retrieves what has not left his possession; therefore, it is more fitting to prevent it.

Section: As for the disconnected increase, such as offspring, fruit, and earnings, it does not prevent reclamation without any disagreement among our companions, and this is the opinion of Malik and Al-Shafi'i. It makes no difference whether the sold item decreased because of it or not, provided it was a decrease in quality, and the increase belongs to the insolvent person. This is the manifest view of Al-Khiraqi; for he prevented reclamation due to a connected increase because it belongs to the insolvent person, so the disconnected one is more deserving of this rule. This is the opinion of Ibn Hamid and the Qadi, and it is the school of Al-Shafi'i, and it is the correct view, God willing. Abu Bakr said: The increase belongs to the seller. This is the school of Malik. Hanbal narrated from Ahmad, regarding the offspring of a slave girl and the offspring of a beast: It belongs to the seller; because it is an increase, so it is for the seller, like the connected increase. Our evidence is that it is an increase that became disconnected while in the possession of the purchaser, so it belongs to him, just as if he returned it due to a defect, and because it is

Notes

(14) Omitted from M. (15) In M, there is an addition: "Section."

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