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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 8 · Page 397Section

Translation · EN

The permission of the heirs is purely an implementation and authorization; it is sufficient for the heir to say: "I have permitted," "I have executed," or "I have carried out." When he says that, the bequest becomes binding. If it were void, the permission would be an original gift, requiring the conditions of a gift, such as verbal declaration, acceptance, and taking possession, like an original gift. If the person granting permission retracts it before taking possession in cases where possession is considered a condition, his retraction is valid.

Section: If he remits a debt for his heir, or bequeaths the payment of his debt, or if a woman remits her dowry for her husband, or if he forgives a crime the punishment for which is money, it is like a bequest. If he forgives retaliation (qisas), and we say that the required outcome is strictly retaliation, it lapses without compensation. If we say that the requirement is one of two things, then retaliation lapses and money becomes due. If he forgives the punishment for false accusation (qadhf), it lapses absolutely. If he makes a bequest to his heir's creditor, the bequest is valid. The same applies if he gives it to him as a gift. This is the opinion of al-Shafi'i and Abu Hanifa. Abu Yusuf said: It is a bequest to the heir, because the heir benefits from this bequest, and his debts are satisfied by it. We argue that he has made a bequest to a stranger, so it is valid, just as if he had bequeathed it to someone who is in the habit of doing favors to his heir. If he makes a bequest to the child of his heir, it is valid; however, if he intends by that the benefit of the heir, it is not permissible in his relationship with Allah the Almighty. Tawus said regarding the saying of the Almighty: "But if anyone fears partiality or sin from a testator" (Qur'an 2:182), he said: "It means that he makes a bequest to his daughter's child while he intends his daughter." Narrated by Sa'id. Ibn 'Abbas said: Partiality in a bequest and causing harm therein are among the major sins.

Section: If he makes a bequest to every heir of a specific item from his wealth equal to the value of their share—such as a man who left a son and a daughter, and a slave worth one hundred, and a slave girl worth fifty, and he bequeathed the slave to his son and the slave girl to his daughter—it is possible that the bequest is valid, because the right of the heir is in the amount, not the specific item. This is evidenced by the fact that if a sick person trades with some of his heirs or a stranger using his entire wealth, it is valid if it is done for the fair market price,

Notes

(5) In the original and M: "fama" (in what). (6) Surah al-Baqarah 182. (7) We did not find it in what was printed of Sunan Sa'id ibn Mansur. Al-Bayhaqi recorded it in: The Chapter of One Who Said that the Bequest to Close Relatives Who Do Not Inherit Is Abrogated..., from the Book of Bequests. Al-Sunan al-Kubra 6/265, 266. And al-Daraqutni in: The Book of Bequests. Sunan al-Daraqutni 4/152.

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