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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 8 · Page 51

Translation · EN

to replace it; because the contract is for a specific object, these rulings are established, just as if he had purchased a specific object. If it is for an object described by specification in liability, these rulings are inverted. Whenever he delivers to him an object that then perishes, the lease is not rescinded, and the lessor is obligated to replace it. If it turns out to be usurped, the contract is not void, and he is obligated to provide its substitute. If he finds a defect in it and returns it, the same applies; because what is contracted upon is not this specific object, but rather this is a substitute for it. Therefore, its destruction, usurpation, or return due to a defect has no effect in invalidating the contract, just as if he bought something with a price held in liability, according to what has been established in its place.

If it is said: You have stated regarding someone who leases a camel to ride that it is permissible for someone similar to him to ride it; and if he leases land to plant a specific crop, it is permissible for him to plant what is equivalent to it or less in terms of damage; so why have you said: if he leases a specific camel, it is not permissible to substitute it? We say: Because what is contracted upon is the benefit of the specific object, so it is not permissible to hand over to him something other than what was contracted upon, just as if he bought a specific object, [it is not permitted] for him to take something other than it. The rider is not what is contracted upon; he is merely the recipient of the benefit, and his identity is only stipulated [to measure] the benefit, not because he is what is contracted upon. The same applies to planting in the land; it is only specified to determine the extent of the benefit being utilized, so it is permissible to utilize it through another means, just as if the purchaser delegated another to take possession of the sold item. Do you not see that if the camel or the land perishes, the lease is rescinded, whereas if the rider dies or the seed is destroyed, the lease is not rescinded and it is permissible for another to take his place? Thus, they differ.

Notes

(27) In B: "ilayha" (to it). (28) Omitted from M. (29) Omitted from the original. (30) Omitted from B. (31) In B: "lam yajuz" (it is not permitted). (32) In M: "li-taqdir" (for the estimation/measuring).

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