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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 9 · Page 128

Translation · EN

"He inherits and is inherited from according to the extent of what has been emancipated of him" (1). This is because it is necessary for the ruling of each part to be established, just as if the other were like it, and by way of analogy of one of them to the other. Once this is established, the derivation [of rulings] is based on our view, because the application of the rulings on other than it is clear. The manner of his inheritance is that one who has a fixed share (fard) is given according to the extent of the freedom in him from his share. If he is a residuary (asabah), one looks at his wealth in relation to complete freedom, and he is given according to the extent of the freedom in him. If they are two residuaries and neither excludes the other, such as two sons each half of whom is free, there are two views regarding them. One is that freedom is completed in them by adding the freedom from one of them to that which is in the other. If one full [person] is completed from both of them, they both inherit the inheritance of a free son, because two halves of one thing are one whole thing. Then, what they have inherited is divided between them according to the extent of what is in each one of them; so if two-thirds of one is free and one-third of the other is free, what they inherited is divided between them in thirds. If the freedom in them is less than a complete free person, they inherit according to the extent of what is in them. If it exceeds one free person, and the parts in them are equal, what they inherit is divided between them equally; if they differ, each is given according to the extent of what is in him. Al-Khabri said: The majority said: This is the analogy of the view of 'Ali (may Allah be pleased with him). The other view is that freedom is not completed in them, because if it were completed, the effect of servitude would not be apparent, and they would be in their inheritance like two free people. If one of them excludes the other, it has been said that there are two views regarding them as well. The correct view is that freedom is not completed here, because a thing is not completed by what would negate it, nor is it combined with that which contradicts it. Some of them made him inherit by way of address (al-khitab), setting forth the circumstances (tanzil al-ahwal), and excluding some through others, on the model of setting forth the circumstances for hermaphrodites (khunatha) (2). Abu Yusuf spoke to this effect. The issues thereof are: A son, half of whom is free, has half of the wealth. If there is another son with him whose half is free, they share the wealth in one of the two views, and in the other, they have half of it, and the remainder goes to the residuaries, or to the public treasury if there are no residuaries. It is possible that each one of them has three-eighths of the wealth; because if they were both free,

Notes

(1) Recorded by al-Nasa'i, in: The Chapter on the blood money for a mukatab, from the Book of Qasamah. Al-Mujtaba 8/41, with similar wording. It does not appear in the Musnad of Ahmad. See: Irwa' al-Ghalil 6/161, 162. (2) In M: "al-khitab" (address).

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