What is the legal ruling when one states an obligation regarding property and immediately qualifies it with a different term (e.g., gifting a dwelling then calling it usufruct or loan)?
General Chapter
Al-Mughni
Book of Acknowledgment of Rights
Primary text
When one states, 'To you is this dwelling as a gift (h̄ibah),' and then substitutes it with 'usufruct (sukuny)' or 'loan (ʿāriyyah),' this constitutes an admission of what was substituted, but not an admission of the dwelling itself. This is because the latter part of the statement negates some of what was established in the first part, which is permissible, similar to affirming a whole and then excepting a part of it. This structure is exemplified by the linguistic concept of 'badal al-ishtimāl' (substitutive clause of inclusion), where a part inherent to the whole is substituted, as seen in the verse regarding fighting during the sacred month (Quran 2:217) and Moses attributing his forgetfulness to Satan (Quran 18:63). If one states, 'To you is this dwelling, one-third of it,' or 'one-fourth of it,' it is valid, confirming the portion specified, and this is substitution of a part (badal al-baʿḍ), not exception.
Supporting text
A view recorded by Al-Qadi suggests that this substitution is invalid because it is an exception from a different category (ghayr al-jins), although others argue it is not an exception but a permissible substitute (badal) in language. Furthermore, regarding the case where the speaker offers the dwelling as 'usufruct' or 'loan,' the ruling stands that the specified legal effect (usufruct or loan) takes effect, meaning the offeror can retract the permission to use it or revoke the loan.