Chapter 35. Bequests and Freeing Slaves
(Tadbir, Kitaba, Emancipation, the umm walad and wala')
There are six topics in this chapter, each of which has a reality, a ruling and other matters.
The first concerns bequests (wasâyâ). In the usage of the fuqaha' it is a contract which creates entitlements to the third of his estate which a person can dispose of and which become binding when he dies. They disagree about whether that is obligatory or recommended. Most scholars think that it is mandatory, as is expressed here.
35.1a. The right to make a bequest
It is imperative for someone who has property to prepare a will.
[ It should be witnessed. If it is not witnessed, it is invalid, even if it is found in his writing unless he says, "Carry out the document you find in my handwriting." Then it is carried out.]
35.1b. No bequest to a heir
There can be no bequest in favour of an heir.
[ He either means the fact that it is not sound or that it is simply prohibited, The position of the School is that it is not valid, even if it is less than a third. If the other heirs do allow, it is made a gift from him.]
35.1c. Bequests are from the disposable third
Bequests are made from the disposable third. Anything which exceeds that is rejected unless the heirs allow it.
[ That which the person who makes a will can dispose of is a third, or it means that the one making the will cannot dispose of more than a third. If it is more than a third, even a small amount, it is only allowed by the permission of the heirs when they are sane and adult.
The third is calculated on the day of death, not the day when the will is read, according to what Ibn al-Hajib states. Ibn 'Abdu's-Salam counters him by saying that it is contrary to the school. "What the School considers in the bequest is that it is taken from the third on the day the bequests are carried out, not the day of death, so that if the third covers all the bequests on the day he dies and then a blight befalls the property and destroys some of it so that the third does not cover them, then the ruling on the day of the division is that of someone who has willed away more than a third. I do not know of any disagreement about that in the school."]
35.1d. Emancipation takes priority
In the disposable third, one begins with freeing a particular slave.
[ He deals with the order with which one deals with bequests. The first is the emancipation of a particular slave, whether he owns that slave or someone else owns him, as when he says, "Buy the slave of so-and-so and free him." We mentioned that this is first in the bequests, but when there is a bequest about unpaid zakat or kaffarat, that takes precedence over emancipation.]
35.1e. The order of precedence
Next is priority freeing a mudabbar when the tadbir declaration was made when the master was healthy. This precedes emancipation or any other bequests made when he was ill, including unpaid zakat.
A bequest to pay zakat is taken from the third before other bequests, but a tadbir made when the master was healthy takes precedence over it.
[ If he did not mention unpaid zakat in the will, it is not paid from the third.]
35.1f. When there is not enough in the third to cover all bequests
It the third is not enough for then the people of shares who have no precedence receive proportional shares of the rest.
[ This is the same principle as 'awl (adjustment) in shares of inheritance. For instance, take the case when the deceased willed one man half of his property and another a quarter. You compare the position of the half and the fourth and see what is between them and you find that the common factor is a quarter. You take the half and fourth and combine them and so they are three and you know the third is divided into three shares between them, one share for the one with a fourth and two for the one with a half. This is when the heirs do not allow the bequests. If they allow them, then the one with the bequest takes the half and the other a fourth, and the rest is taken by the heirs.]
35.1g. Revoking a bequest
A man may revoke his bequest of emancipation or other things.
[ Even if he is a fool and whether he is healthy or ill. The same applies to women and children, He can retract a bequest whether he is healthy or ill, as it states in Tahqiq al-Mabani from al-Fakhani and Bahram. He can retract it, even if he testified in his will that he would not retract it. That is the 'amal in this.]
35.2. Tadbir: an undertaking to free a slave at the master's death or a certain date
35.2a. Definition of tadbir
A tadbir is contracted when a man says to his slave, "You are mudabbar" or "You are free afterwards," (i.e. after my death)
[ Taken the departure (idbâr or dabr) of life. The root means what is behind something. Tadbir is recommended. One of its preconditions is the form with which it is made, like saying, "You are free after my death" or "You are free on the day I die." The slave must be of age to be considered responsible and sane. It is not sound to grant it to a mad person or a child even if he has discrimination.]
35.2b. Status of a mudabbar slave
Then he is not permitted to sell such slave, but he is still entitled to his work and, as long as the master is not ill, he can confiscate the slave's possessions. If it is a slavegirl, he can have intercourse with her.
[ If he sells such a slave, the sale is invalid and the slave remains a mudabbar as long as the sale is not connected to emancipation. If it is connected to emancipation and the buyer emancipates him, he is free and he has his wala', i.e. if he sets him free while the master is alive. If the sale is carried out with emancipation, the one who set free has the wala'. If he is freed after the death of the one of the one gave him the tadbir, it is not carried out because the wala' is connected to the one who granted the tadbir.
The master is entitled to his work until he dies because he is his master. If the master is ill and may die, he cannot confiscate the slave's property because that is removing his property for someone else.
He can have intercourse with a slavegirl because the basic principle is that she is allowed. If she becomes pregnant, she becomes a umm walad who is freed from his main estate [rather than from the disposable third] after his death.]
35.2c. A slavegirl due to be freed at a certain time
He cannot have intercourse with a slavegirl who will be set free a certain date nor can he sell her. He can demand her work and can confiscate her possessions as long as the term for her emancipation is not near.
[ This is like when he says, "Serve me for a year and then you are free" because the term may come before his death and so she will be free. If he has intercourse with her she may become pregnant and then would only be free after his death [as a umm walad]. Such a relationship in this case resembles a mu'ta marriage [a temporary marriage because it has a term at which it ends]. If a slavegirl has a term fixed for her, he must not have intercourse with her, or give her away or give her as charity because she has one of the contracts of emancipation.
[The Hashiyat al-'Adawi notes that if he does have intercourse with her, he is disciplined for that, but is not subject to a hadd punishment.]
She can work for him since she is still his property until the end of the term. He can confiscate her possessions which she has, for instance as a gift from him, but this is restricted to when the term of emancipation is not near. There is no definition of near.
[The Hashiyat al-'Adawi notes that there is a second position about "near" and that it is about a month.]
35.2d. The freeing of a mudabbar is from the disposable third
When the master dies, the emancipation of the mudabbar comes out of the disposable third, while a slave promised freedom at a certain date comes from the total estate.
[ Priority in the disposable third of the estate is given to a slave given a tadbir when the deceased was healthy. Then comes the slave given a tadbir when he was ill. If someone has been set a date at which he will be free, he is different to the mudabbar and is set free from the capital of the estate.]
35.3. Kitâba: the agreement to free a slave on payment by agreed instalments
35.3a. The kitâba agreement
A slave with a kitâba (mukâtib) remains a slave as long as he still owes anything. The kitâba agreement is permitted when made with the agreement of the slave and master for an amount to be paid in instalments, however many or few they are.
[ No matter how little is outstanding of the payments, the mukatib is still a slave since it is confirmed that the Messenger of Allah, may Allah bless him and grant him peace, said, "The mukatib remains a slave as long as a single dirham of his kitaba is outstanding."
Kitaba is the emancipation of a slave in return for money paid in instalments. There is no disagreement that it is permitted. The Book indicates its legality: "If any slaves you own desire to make a contract to free themselves, write it for them if you know of good in them." (24:33) The precondition is that the payment be done in instalments. Al-Fakhani reported from the Mudawanna, "It is not immediate and the instalments are stipulated, like x amount every month or every year based on their mutual agreement."
In al-Jawahir Abu Bakr said, "Our scholars say that an immediately paid kitaba is permitted. It is analogous to a sale in which both immediacy and deferral are accepted."]
35.3b. When the slave defaults
If he is unable to pay, he reverts to a full slave and the master can keep what he has already received. The slave can only be deemed insolvent by the sultan after failing to pay if he refuses to acknowledge his insolvency.
[ None of him is free. The master keeps what he paid because he is his slave. If the slave acknowledges his inability to pay, he automatically reverts to full slave status.]
35.4. Children and the property of slaves
35.4a. Status of the children of women slaves
If a woman has a kitaba or tadbir agreement, or a date is set for her emancipation, or she is pledged as security, any child she bears shares her status.
[ Her children have her status whether the child is conceived in marriage or by fornication. If the father is the master, the child is free without dispute if the master is free. If the father is a slave, it is slave like her in all her rulings of emancipation, work, sales and the like.]
35.4b. Status of children of a umm walad by other than the master
The children of an umm walad fathered by other than her master have the same status as her.
[This about any children she has after she becomes a umm walad. There is no disagreement about that in the School. As for children she had before she became umm walad, they remain slaves.]
35.4c. The possessions of slaves
A slave's property belongs to him his unless the master confiscates it. If the master frees him or grants him a kitaba and does not exclude the slave's property, then he cannot confiscate it.
[ Ibn Naji said that it appears from what he says that he actually owns it, and so there are two secondary rulings from his words. One is that he is permitted to have intercourse with his slavegirl since he owns her. The second is that a slave is obliged to pay zakat on the property in his possession. The well-known position, however, is that a slave does not pay zakat.
[The Hashiyya of al-'Adawi points that his ownership of property is not, in fact, complete.]
It is agreed about anything he earns property after the contract of kitaba. According to the School, it applies to what he earned before the contract.
35.4d. A slavegirl with a kitaba
The master cannot have intercourse with a slavegirl who has a kitaba contract.
[ That is because her person and property are protected. If he does have intercourse with her, the hadd is not imposed on him in the well-known position, He is punished unless he is excused due to ignorance or error and he does not owe any bride-price. If she is a virgin or he forces her, he owes the amount of her depreciation. It states in al-Jawahir, "If she becomes pregnant, she can choose between insolvency and become an umm walad or continue with the rest of her kitaba. If she chooses insolvency, she becomes a umm walad. If she chooses to pay the rest of her kitaba, she is the mother of a child and a mukatiba [which means that the master is responsible for her maintenance while she is pregnant]. When she pays the instalments, she is free. Otherwise she is free when the master dies.
35.4e. Children of a slave with a kitaba
Any children born to a man or woman slave with a kitaba contract after they have concluded a kitaba have the status and they are free when the parents are free.
35.5. Freeing a group by kitaba
It is permitted for a group to have a kitaba but they only free when the entire sum is paid.
[ This is a single contract when they belong to the same master. They pay according to their ability to pay on the day of the contract of the kitaba was made.]
35.6. Restrictions on a mukatib
A slave with a kitaba cannot free his own slaves or waste his property until he is free. He cannot marry nor undertake a long journey without his master's permission.
[ He can not get rid of his property without recompense for it, as through gifts and sadaqa, if that considerable. The reason for that is that it would be injurious to his master and it might lead to his inability to pay. He cannot undertake a long journey in which his instalments will become due before he returns. Al-Aqfashi said that the permission of his master refers to both marriage and travel. He can do it with his master's permission.]
35.7. Children of a deceased mukatib
35.7a The status of the children of a mukatib when he dies
If the slave with a kitaba dies leaving a child, he takes his place and pays from his estate whatever is still unpaid which becomes immediately due. His children inherit any remaining property.
[ His children who are part of the contract take his place, but that is not paid in instalments. It is due immediately and is paid from his estate if he left enough to cover the instalments or more, because his responsibility ends at death, like all deferred debts.]
35.7b. If there is not enough to cover it
If there is not enough to settle the amount, the children should trade with what there is and pay it off in instalments if they are adults. If they are children, and the estate is not enough to cover the instalments until they come of age and can trade, they revert to being full slaves.
[ Adult children continue to pay the instalments if they have the ability to work and can be trusted with the money. Otherwise the money is put with a trustee who pays on their behalf. If they are minors and there is enough to cover the instalments until they come of age, they are not made full slaves, but the money is lodged with a trustee who pays the master his instalments.]
35.7c. If the mukatib has no childrem
If he does not have any children in his kitaba, his master inherits from him.
[ And there is not enough to cover the debt, the master is the heir by virtue of him being a slave, not by the wala', since he dies a slave.]
35.8 Umm Walads
A umm walad is a slavegirl who has borne her master a child.
35.8a. When a man has a child by his slavegirl
If a man has child by a slavegirl, he can enjoy her while he is alive and then she is set free from the main estate when he dies.
[ He is permitted to enjoy her by the words of Allah, "Or those they own as slaves, in which case they are not blameworthy." (23:6) The Messenger of Allah, may Allah bless him and grant him peace, had such a relationship with Maria the Copt. When the man dies, his umm walad is set free first, without any requiring any legal ruling and cannot be enslaved on account of his debts, whether they existed before or after her pregnancy.]
35.8b. Her status
He is not permitted to sell her or demand her work or demand revenue from her. He may, however, demand that from her child by another man.
[ If he does sell her, the sale is void, even if the buyer frees her or takes her as a umm walad or she dies. The buyer is given the price back. The same applies to gifts, pledges and the like. He can not oblige a lot of work from her, but can oblige minor work like grinding flour and fetching water. He cannot make her work for someone else, but he can do that with her other children.]
35.8c. Her children's status
Such a child has the same status as his mother regarding emancipation and is free when she is free.
[ This refers to her children by other than the master. This is when the master dies when she is alive. If she dies before him, her children are not free until the master dies.]
Any miscarriage known to be a child makes her an umm walad.
[ No matter whether it is a lump or clot, and even clotted blood, according to the well-known position.
[This has two preconditions. The first is that the master admits to having had intercourse with her, and the second is that, in the absence of the child, two women testify to the birth or miscarriage.]
35.8e. Denial of paternity
He cannot claim coitus interruptus in order to deny paternity of the child if he admits to having had intercourse with her. If he claims that he has observed istibra' and not had intercourse with her afterwards, the paternity of her child born after that is not attributed to him.
[ Coitus interruptus is withdrawal before ejaculation. It does not remove the paternity because even a small amount of semen can result in conception.
If he has observed istibra', which is remaining apart from her for at least one menstrual period or more, then in the famous position the child is not attributed to him. He is not obliged to take an oath in that (about having observed istibra').]
35.9. Obstacle of a slave's debts
It is not permitted for someone whose property is covered by debts to set a slave free.
[ Freeing slaves is one of the greatest devotional acts one can do to draw near to Allah. It is confirmed that the Prophet, may Allah bless him and grant him peace, said, "If someone frees a believing slave, Allah will save a limb of his from the Fire for every limb of his." In one version, "a limb of his from the fire for every limb of his, even his genitals for his genitals." Freeing a man is better.
Emancipation has three pillars.
1. The first is the person frees, who must be adult and sane with no legal restrictions on his dealings and not having debts that take up all his property, An emancipation done by a child, madman or one legal restricted from financial dealings is not permitted. Nor is it permitted if his debts cover all his property, whether those debts are immediate or deferred because then he would be disposing of someone else's property.
2. The second is the slave, who can be a full slave or one with some degree of freedom, like a mudabbar.
3. The third is the form which indicates removal of ownership as, "You are free."
35.10 Freeing part of a slave
35.10a. Someone who frees part of a slave frees all of him
If someone frees part of his slave, he is made to free all of him.
[ As when he frees a fourth, third or half. He is judged to have freed all of him not just part of him, when the slave set free is Muslim sane, sensible with no debts and when the slave has one master. ]
35.10b. If there is more than one master
If someone else has a share in the slave, the share of his partner is estimated on the day the emancipation is settled, and the slave is free. If he does not have the money to pay the partner, the portion of the partner in the slave remains.
[ The one who set free his part must pay the partner the price which is assessed on the day of the judgement of emancipation if there is judgement in it. Then the emancipation depends on the ruling issued for it, not by the simple freeing of part of the slave. If the person is wealthy, he pays the share of the partner on the day of the judgement. If he is not wealthy on the day of the judgement, then the slave remains a slave unless his remaining master frees him. If he has enough to pay for part of the share of the partner, it is estimated according to what he has.]
35.11. Freeing because of mutilation
If someone mutilates his slave clearly, such as cutting off a limb and the like, the slave is set free.
[ Like a foot, hand or like a testicle. Then the master is obliged to free him, even if that was intended to increase the price since he tortured him by doing that. Similar to cutting off a limb is gouging out an eye or the branding his face or elsewhere with fire. He is freed from his estate. It appears from his words that he is freed automatically on account of the mutilation, and Ashhab says that. Ibn al-Qasim says that he is only freed by a ruling.]
[Al-'Adawi: There is disagreement about whether the master is punished by beating and imprisonment or whether the punishment is the enforced emancipation of the slave.]
35.12 Freeing because of kinship
If someone obtains ownership of his parents, his children or grandchildren, grandfather or grandmother, or uterine, paternal or full brother, that slave is freed automatically.
[ This applies to relationship by blood or by suckling. All he mentioned is automatic and does not require a ruling in the well-known position provided that he does not have debts which would take up the price. If he has debts which would take up the price, he cannot free him by that and nor sell nor can remain the owner of such a relative. Rather he is sold for him to cover the debt.]
35.13. Freeing which is a consequence
If someone frees a pregnant woman, her unborn child is free with her.
[ Whether the child is by marriage or fornication. The child is free because every child who comes by marriage or fornication without ownership follows the mother in freedom or slavedom. ]
35.14. Freeing because of a legal obligation
In freeing slave to discharge an obligation, one may not free a slave who is the process of being freed, like one with a tadbir or a kitaba or something similar, nor one who is blind, or has had a hand or the like amputated, or a non-Muslim, a child, or someone who is subject to enforced guardianship.
[ This is on account of obligations like the kaffara for killing (and that for dhihar divorce or for breaking the fast of Ramadan).
Categories who cannot be freed for this also include an umm walad, someone with a date at which they will be free or someone who is partially free, because it is muddled with the contract of liberation. [Only full slaves fulfil the obligation.]
Furthermore in satisfying the obligation, one cannot free amputees since that decreases the value of the slave by the defect. It cannot be a non-Muslim because Allah says, "a believing slave". It cannot be a child because he is not one of the people of responsibility. Nor can someone debarred from dealing with his own finances, who is a fool who spends his money improperly.]
35.16 Wala' (Clientage)
This gives the one who has this has what is tantamount to an agnate relationship to the former slave, i.e. as if he were related to him via the father.
35.16a. The one who receives the wala'
The wala' belongs to the one who sets a slave free. It is not permitted to sell it or give it away.
[ The person who removes ownership by liberating a slave becomes his mawla if the one who is freed the slave is a Muslim. If the one who freed is an unbeliever and he frees a Muslim, he has no wala' relationship to his freed Muslim. The wala' then goes to the community of Muslims. If the person then becomes Muslim, the wala' does not revert to him. The basis for this principle is found in the words of the Prophet, may Allah bless him and grant him peace , "The wala' belongs to one who sets free." It cannot be disposed of because of what Ibn Hibban and others related that the Prophet, may Allah bless him and grant him peace, said, "The wala' is flesh like the flesh of lineage. It is not sold or given away."
35.16b. Freeing on behalf of someone
If someone frees a slave on behalf of another man, that man still has the wala'.
[ If the man who ordered the emancipation is free. If he is slave, then his master has the wala'.]
35.16c. The one who receives a shahada
If someone becomes Muslim at someone's hand, the wala' does not go to him, but to the Muslims as a whole.
[ When an unbeliever says the shahada with someone, that person does not receive the wala' of that person [because the wala' only belongs to the person who emancipates.]]
35.16d. Women receiving the wala'
When a woman sets a slave free, she has the wala' of that person as well as the wala' of the person's children and any slaves that person frees. In the case of someone she has not set free, she does not inherit the wala' from her father, son, husband or anyone else.
[ She has the wala' of their children and freed slaves because she is the initial emancipator and that is attributed ultimately to her. The wala' is inherited via the agnatic male line and not the female.]
35.16e. Inheritance of a slave with no wala'
The estate left by a slave without a wali (sâ'iba) goes to the Muslim community.
[ This is the sa'iba. Such a status comes about when someone tells his slave, "You are free as a musîb" or "sa'iba", by which he means emancipated. This expression is disliked because it was used in the Jahiliyya for livestock as Allah Almighty says about them, "Allah did not institute any such thing as bahira or sa'ibaÉ" (5:105)
35.16f. Inheritance of wala'
The wala' is inherited by the closest agnatic heir of the dead person. If he has two sons, they share the wala' between them. If one of them dies, leaving sons, the wala' goes to his brother rather than his sons. If one of them dies leaving one son, and the other dies leaving two sons, the wala' is shared between all three.
[ Although the term "inheritance" is used here, properly speaking the wala' is not inherited, but there is inheritance on account of it.]
[Al-'Adawi: Wala', like lineage, is only establishedby two witnesses.]
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