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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 8 · Page 130Section

Translation · EN

nor their down (wabar), nor leasing a tree to take its fruit, or anything from its entity.

Section: It is not permissible to lease a stud animal for breeding (dirab). This is the explicit view of the school of Al-Shafi'i, the Ahl al-Ra'y, Abu Thawr, and Ibn al-Mundhir. Abu al-Khattab derived a view permitting it, because it is a permissible benefit, and necessity calls for it, so it is permitted, like leasing a wet nurse for breastfeeding and a well to draw water from it. Also, because it is a benefit permitted by lending, so it is permitted by leasing, like other benefits. This is the school of Al-Hasan and Ibn Sirin. Our view is that the Prophet (peace and blessings of Allah be upon him) forbade the stud fee of the male (asb al-fahl); [agreed upon]. In another wording: He forbade the breeding of the camel. Also, because the objective is the fluid from which the offspring is created, so the lease contract would be for the acquisition of an absent entity, and thus it is not permissible, like leasing sheep to take their milk; and this is even more applicable, for this fluid is prohibited and has no monetary value, so it is not permissible to take compensation for it, like carrion and blood, and it is unknown, thus resembling milk in the udder. As for those who permit it, they should structure the contract on the action and estimate it by one or two times or more. It is said: The contract is based on a duration. This is far-fetched; because whoever wants to breed his mare once, and estimates it by a duration that exceeds the time required for the action, it is not possible to encompass it with that, and if he restricts it to its measure, the action might not be realized within it, and it is also difficult to ascertain the measure of the action. Therefore, estimating by the action is specific, unless one leases a stud for a large number of livestock, such as a stud he leaves among his camels, or a goat among his sheep; for this is only leased for a known duration. The school's position is that it is not permissible to lease it. If a person needs that and does not find someone to allow their stud to breed, it is permissible for him to offer payment, but the owner of the stud should not take it. Ata' said: He shall not take anything for it, and there is no harm if he gives it to him if he does not find anyone to allow it for him. This is because this is offering wealth

Notes

(28) Omitted from: M. (29) In B: "The narration of Al-Bukhari". Its verification has preceded in: 6/303. (30) Omitted from: The original, B. (31) Omitted from: B. (32) In the original: "yatriquhu" [he allows it to breed].

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