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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 9 · Page 375

Translation · EN

by this statement alone. The second narration is that it is not permissible for him to oversee both sides of the contract; rather, he should appoint a man to marry her off to him with her permission. Ahmad (may Allah have mercy on him) said in the narration of Ibn Mansur: "He does not marry himself [to her] until he appoints another man," based on the hadith of al-Mughirah ibn Shu'bah, which is what Abu Dawud narrated via his chain of transmission from 'Abd al-Malik ibn 'Umayr, that al-Mughirah ibn Shu'bah ordered a man to marry him to a woman whom al-Mughirah had a greater right to than the man. Because it is a contract he owns by permission, it is not permissible for him to oversee both sides, like a sale. By this, it differs from when he marries his slave woman to his young male slave. According to this narration, if he appoints an agent to accept [the marriage] on his behalf and he himself handles the offer, it is permissible. Al-Shafi'i said regarding the paternal cousin and the master: "He does not marry her off except through the judge, and it is not permissible for him to oversee [both sides of the contract], nor to appoint someone to marry her to him," because his agent is in his position, and this is a contract he owns by permission, so he does not oversee both sides, just as in a sale. It is also not permissible for him to have a guardian who is more distant than him marry her to him, because they have no guardianship while he exists. Our argument is what we mentioned regarding the actions of the Companions, and no contrary view appeared; and because his agent may oversee the contract on her behalf for someone else, so it is valid for him to oversee it on her behalf for himself if she is lawful for him, just like the Imam when he intends to marry someone under his guardianship. And because this is a woman who has a present guardian who is not preventing her from marriage, the judge does not oversee her [marriage], as if he intended to marry her to someone else.

Notes

(12) In the original: "by the mere." (13) In A, an addition: "that he." (14) We did not find it in [the Sunan of] Abu Dawud; rather, it was brought out by al-Bukhari in: Chapter: If the guardian is the suitor..., from the Book of Marriage. Sahih al-Bukhari, 7/21. Al-Albani mentioned in Irwa' al-Ghalil 6/256, 257 that it is not in the Sunan of Abu Dawud. (15) In the original: "by permission." (16) In the original, an addition: "that he." (17) In M: "the contract and handle." (18) In M: "both sides, like a sale." (19) In M: "the guardians." (20) In the original: "and the Imam." (21) In M: "marry."

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