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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 7 · Page 68Section

Translation · EN

the claimant of it. It is the same whether the transferor acknowledges the creditor’s debt or says: 'You have no debt against me.' This is because his saying, 'I transferred your debt to you,' is an acknowledgment of his debt, and his denial of it afterward is not accepted. As for if he did not say 'your debt,' but rather said: 'I have transferred you,' and then said: 'You have no debt against me, and I only meant the appointment of agency by using the wording of a transfer,' or he said: 'I intended to say: I have appointed you as an agent, but my tongue slipped and I said: I have transferred you,' and the creditor claims that it is a transfer of his debt and that his debt was established against the transferor, then is that an acknowledgment of the debt or not? There are two views regarding this, the reasoning for both having already preceded.

Section: If a man has a debt against another, and he demands it from him, and he says: 'You have transferred this debt to so-and-so, the absent one,' and the debt owner denies this, the statement is his with his oath. If the one upon whom the debt lies has evidence for his claim, his evidence is heard, to dismiss the transferor’s right against him. And if a man claims that: 'So-and-so, the absent one, transferred me to you,' and the defendant denies it, the statement is his. If the claimant produces evidence, it is established against him and against the absent person; because evidence is passed judgment upon (19) against the absent, and payment to the transferee becomes mandatory. If he has no evidence, and the defendant denies it, is he obligated to take an oath? There are two views regarding this, based on the case where, if he acknowledged it for him, would he be obligated to pay? [There are two views; one of them is: he is obligated to pay] (20) to him, because he is acknowledging his debt upon himself and the necessity of paying it to him, so payment to him is required, just as if there were evidence. The second is: he is not obligated to pay to him, because he is not secure from the transferor denying it and seeking recourse against him, so he has the right to exercise caution for himself, just as if he claimed against him: 'I am the agent of so-and-so in collecting his debt from you,' and he confirmed him, then said: 'I will not pay it (21) to you.' If we say: He is obligated to pay when there is an acknowledgment, then the oath is required (22) when there is a denial. When he takes the oath, he is released, and the transferee has no right of recourse against the transferor, because of his acknowledgment of his release. Likewise, if we say: The oath is not required of him, then the transferee has no right of recourse against the transferor. Then one looks at the transferor; if he confirms

Notes

(19) In M: "bihi" (by it). (20) Dropped from: B. (21) In M: "adfa'uka" (I pay you). (22) In the original, A, M: "lazimahu" (he is obligated).

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