39 The Mukatab
39.1 Judgement on the Mukatab
1 Malik related to me from Nafi' that 'Abdullah ibn 'Umar said, "A mukatab is a slave as long as any of his kitaba remains unpaid."
[In Abu Dawud and Ibn Majah]
2 Malik related to me that he had heard that 'Urwa ibn az-Zubayr and Sulayman ibn Yasar said, "The mukatab is a slave as long as any of his kitaba still remains to be paid."
Malik said, "This is my opinion as well."
Malik said, "If a mukatab dies and leaves more property than what remains to be paid of his kitaba and he has children who were born during the time of his kitaba or whose kitaba has been written as well, they inherit any property that remains after the kitaba has been paid off."
3 Malik related to me from Humayd ibn Qays al-Makki that a son of al-Mutawakkil had a mukatab who died at Makka and left (enough to pay off) the rest of his kitaba and he also owed some debts to people. He also left a daughter. The governor of Makka was not certain about how to judge in the case so he wrote to 'Abd al-Malik ibn Marwan to ask him about it. 'Abd al-Malik wrote to him, "Begin with the debts owed to people and then pay off what remains of his kitaba. Then divide what remains of the property between the daughter and the master."
Malik said, "What is done among us is that the master of a slave does not have to give his slave a kitaba if he asks for it. I have not heard of any of the Imams forcing a man to give a kitaba to his slave. I have heard that when someone asked about that and said that Allah the Blessed, the Exalted said, 'Write a kitaba for them if you know of good in them' (24:33), one of the people of knowledge recited these two ayats, 'When you have come out of ihram, then hunt for game' (5:3) and 'Then when the prayer is finished spread through the earth and seek Allah's bounty' (62:10). "
Malik commented, "It is a way of doing things for which Allah the Mighty, the Majestic, has given permission to people, and it is not obligatory for them."
Malik said, "I heard one of the people of knowledge say about the words of Allah the Blessed, the Exalted, 'Give them some of the wealth Allah has given you' (24:33), that it meant that a man give his slave a kitaba and then reduce the end of his kitaba for him by some specific amount."
Malik said, "This is what I have heard from the people of knowledge and what I have seen people doing here."
Malik said, "I have heard that 'Abdullah ibn 'Umar gave one of his slaves his kitaba for 35,000 dirhams and then reduced the end of his kitaba by 5,000 dirhams."
Malik said, "What is done among us is that when a master gives a mukatab his kitaba, the mukatab's property goes with him but his children do not go with him unless he stipulates that in his kitaba."
Yahya said, "I heard Malik say that in the case of a mukatab who was the owner of a slave-girl who was pregnant and neither he nor his master knew that on the day he was given his kitaba, the child did not follow him because he was not included in the kitaba. He belonged to the master. As for the slave-girl, she belonged to the mukatab because she was his property."
Malik said that if a man and his wife's son (by another husband) inherited a mukatab from the wife and the mukatab died before he had completed his kitaba, they divided his inheritance between them according to the Book of Allah. If the slave paid off his kitaba and then died, the inheritance went to the son of the woman and the husband had nothing of the inheritance.
Malik said that if a mukatab gave his own slave a kitaba, the situation was examined. If he wanted to do his slave a favour, and it was obvious by his making it easy for him, it was not permitted. If, however, he was giving him a kitaba from desire to find money to pay off his own kitaba, then he was permitted to do so.
Malik said that if a man had intercourse with a mukataba of his and she became pregnant by him, she had an option. If she liked she could be an umm walad. If she wished she could confirm her kitaba. If she did not conceive she still had her kitaba.
Malik said, "The generally agreed on way of doing things among us about a slave who is owned by two men is that one of them does not give a kitaba for his share, whether or not his companion gives him permission to do so, unless they both write the kitaba together because that alone would effect setting him free. If the slave were to fulfil what he had agreed on to free half of himself and then the one who had given a kitaba for half of him was not obliged to complete his setting free, that would be in opposition to the words of the Messenger of Allah, may Allah bless him and grant him peace, 'If someone frees his share in a slave and has enough money to cover the full price of the slave, justly evaluated for him, he must pay his partners their shares so that the slave is completely free."
Malik said, "If he is not aware of that until the mukatab has met the terms or before he has met them, the owner who has written the kitaba for him returns what he has taken from the mukatab to him, and then he and his partner divide him according to their original shares and the kitaba is invalid. He is the slave of both of them in his original state."
Malik spoke about a mukatab who was owned by two men and one of them granted him a delay in the payment of the right which he was owed. His partner refused to defer payment and exacted his part of the due. Malik said that if the mukatab then died and left property which did not complete the kitaba, "They divide it according to what they are still owed by him. Each of them takes according to his share. If the mukatab leaves more than his kitaba, each of them takes what remains to them of the kitaba and what remains after that is divided equally between them. If the mukatab is unable to pay his kitaba fully and the one who did not allow him to defer his payment has exacted more than his associate did, the slave is still equally between them, and he does not return to his associates the excess of what he has exacted because he only exacted his right with the permission of his associate. If one of them remits what is owed to him and then the mukatab is unable to pay, he belongs to both of them, and the one who has exacted something does not return anything because he only demanded what he was owed. That is like the debt of two men in one writing against the same man. One of them grants him time to pay and the other is greedy and exacts his due. Then the debtor goes bankrupt. The one who exacted his due does not have to return any of what he took."
39.2 Assuming Responsibility in Kitaba
4 Malik said, "The generally agreed on way of doing things among us is that when a group of slaves write their kitaba together in the same kitaba agreement, and some are responsible for others, and they are not reduced anything by the death of one of the responsible ones, and then one of them says, 'I cannot do it,' and gives up, his companions can use him in whatever work he can do and they help each other with that in their kitaba until they are freed if they are freed, or remain slaves if they remain slaves."
Malik said, "The generally agreed on way of doing things among us is that when a master gives a slave his kitaba, it is not permitted for the master to let anyone assume the responsibility for the kitaba of his slave if the slave dies or is incapable. This is not part of the sunna of the Muslims. That is because when a man assumes responsibility to the master of a mukatab for what is owed of the kitaba and then the master of the mukatab pursues that from the one who has assumed that responsibility, he takes his money falsely. It is not as if he is buying the mukatab, so that what he gives is part of the price of something that is his, and neither is the mukatab being freed so that the price established for him buys his inviolability as a free man. If the mukatab is unable to meet the payments he reverts to his master and is his slave. This is because kitaba is not a fixed debt which can be guaranted by the master of the mukatab. It is something which, when it is paid by the mukatab, sets him free. If the mukatab dies and has a debt, his master is not one of the creditors for what remains unpaid of the kitaba. The creditors have precedence over the master. If the mukatab cannot meet the payments and he owes debts to people, he reverts to being a slave owned by his master and the debts to people are the liability of the mukatab. The creditors do not enter with the master into any share of the price of his person."
Malik said, "When people are written together in the same kitaba agreement and there is no kinship between them by which they inherit from each other, and some of them are responsible for others, then none of them are set free before the others until all the kitaba has been paid. If one of them dies and leaves property and it is more than all of what is against them, it pays all that is against them. The excess of the property goes to the master, and none of those who have been written in the kitaba with the deceased have any of the excess. The master's claims are overshadowed by their claims for the portions which remain against them of the kitaba which can be fulfilled from the property of the deceased because the deceased had assumed their responsibility and so they must use his property to pay for their freedom. If the deceased mukatab has a free child not born in kitaba, and who was not written in the kitaba, it does not inherit from him because the mukatab was not set free until he died."
39.3 Severance in the Kitaba for an Agreed Price
5 Malik related to me that he heard that Umm Salama, the wife of the Prophet, may Allah bless him and grant him peace, made a settlement with her mukatab for an agreed amount of gold and silver.
Malik said, "The generally agreed on way of doing things among us in the case of a mukatab who is shared between two partners is that one of them cannot make a settlement with him for an agreed price according to his portion without the consent of his partner. That is because the slave and his property are owned by both of them, and so one of them is not permitted to take any of the property except with his partner's consent. If one of them settles with the mukatab and his partner does not, and he takes the agreed price, and then the mukatab dies while he has property or is unable to pay, the one who made the settlement would not have anything of the mukatab's property and he could not return what he settled for so that his right to the slave's person would return to him. However, when someone settles with a mukatab with the permission of his partner and then the mukatab is unable to pay, it is preferable that the one who broke with him returns what he has taken from the mukatab in severance and he can have back his portion of the mukatab. This he can do. If the mukatab dies and leaves property, the partner who has kept hold of the kitaba is paid in full the amount of the kitaba which remains to him against the mukatab from the mukatab's property. Then what remains of the property of the mukatab is between the partner who made severance and his partner, according to their shares in the mukatab. If one of the partners breaks off with him and the other keeps the kitaba, and the mukatab is unable to pay, it is said to the partner who settled with him, 'If you wish to give your partner half of what you took so the slave is divided between you, then do so. If you refuse, then all of the slave belongs to the one who held on to possession of the slave.' "
Malik spoke about a mukatab who was shared between two men and one of them made a settlement with him with the permission of his partner. Then the one who retained possession of the slave demanded the like of that for which his partner had settled or more than that and the mukatab could not pay it. He said, "The mukatab is shared between them because the man has only demanded what is owed to him. If he demands less than what the one who settled with him took and the mukatab cannot manage that, and the one who settled with him prefers to return to his partner half of what he took so the slave is divided in halves between them, he can do that. If he refuses then all of the slave belongs to the one who did not settle with him. If the mukatab dies and leaves property, and the one who settled with him prefers to return to his companion half of what he has taken so that the inheritance is divided between them, he can do so. If the one who has kept the kitaba takes the like of what the one who has settled with him took, or more, the inheritance is between them according to their shares in the slave because he is only taking his right."
Malik spoke about a mukatab who was shared between two men and one of them made a settlement with him for half of what was due to him with the permission of his partner, and then the one who retained possession of the slave was willing to take less than what his partner settled with him for but the mukatab was unable to pay. He said, "If the one who made a settlement with the slave prefers to return half of what he was assigned to his partner, the slave is divided between them. If he refuses to return it, the one who retained possession has the portion of the share for which his partner made a settlement with the mukatab."
Malik said, "The explanation of that is that the slave is divided into two halves between them. They write him a kitaba together and then one of them makes a settlement with the mukatab for half his due with the permission of his partner. That is a fourth of the entire slave. Then the mukatab is unable to continue, so it is said to the one who settled with him, 'If you wish, return to your partner half of what you were awarded and the slave is divided equally between you.' If he refuses, the one who held to the kitaba takes in full the fourth of his partner for which he made settlement with the mukatab. He had half the slave, so that now gives him three-fourths of the slave. The one who broke off has a fourth of the slave because he refused to return the equivalent of the fourth share for which he settled."
Malik spoke about a mukatab whose master made a settlement with him and set him free and what remained of his severance was written against him as debt, then the mukatab died owing debts to people. He said, "His master does not share with the creditors because of what he is owed from the severance. The creditors are dealt with first."
Malik said, "A mukatab cannot become free of his master whilst he owes debts to people. He would be set free and find himself with nothing because the people who are owed the titled to his property than his master. He is not permitted to do that."
Malik said, "According to the way things are done among us, there is no harm if a man gives a kitaba to his slave and settles with him for gold and reduces what he is owed of the kitaba provided only that the gold is paid immediately. Whoever disapproves of that does so because he puts it in the category of a debt which a man has against another man for a set term and then gives him a reduction and he pays immediately.* This is not like such a debt. The mukatab's becoming free from his master is dependent on his giving money to speed up the setting free. Inheritance, testimony and the hudud are obliged for him and the inviolability of being set free established for him. He is not buying dirhams for dirhams or gold for gold. Rather it is like a man who having said to his slave, 'Bring me such-and-such an amount of dinars and you are free,' then reduces that for him, saying, 'If you bring me less than that, you are free.' That is not a fixed debt. If it had been a fixed debt, the master would have been counted amongst the creditors of the mukatab when he died or went bankrupt. His claim on the property of the mukatab would be treated in the same way as theirs."
* This transaction is haram. See Book 31, section 39, hadith 82.
39.4 Injuries Caused by Mukatabs
6 Malik said, "The best of what I have heard about a mukatab who injures a man so that blood-money must be paid is that if the mukatab can pay the blood-money for the injury along with his kitaba he does so and it is against his kitaba. If he cannot do that, and he cannot pay his kitaba because he must pay the blood-money of the injury before the kitaba, and he cannot pay the blood-money of the injury, then his master has an option. If he prefers to pay the blood-money of the injury, he does so and keeps his slave and he becomes an owned slave. If he wishes to surrender the slave to the injured person, he surrenders him. The master does not have to do more than surrender his slave."
Malik spoke about people who were in a general kitaba and one of them caused an injury which entailed blood-money. He said, "If any of them does an injury involving blood-money, he and those who are with him in the kitaba are asked to pay all the blood-money of that injury. If they pay, they are confirmed in their kitaba. If they do not pay and they are incapable of doing so, then their master has an option. If he wishes, he can pay all the blood-money of that injury and all the slaves revert to him. If he wishes, he can surrender the one who alone did the injury and all the others revert to being his slaves since they could not pay the blood-money of the injury which their companion caused."
Malik said, "The way of doing things about which there is no dispute among us is that when a mukatab is injured in some way which entails blood-money or one of the mukatab's children who is written with him in the kitaba is injured, their blood-money, is the blood-money of slaves of their value, and what is appointed to them as their blood-money is paid to the master who has the kitaba and he reckons that for the mukatab at the end of his kitaba and there is a reduction for the blood-money that the master has taken for the injury."
Malik said, "The explanation of that is, for example, that he has written his kitaba for three thousand dirhams and the blood-money taken by the master for his injury is one thousand dirhams. When the mukatab has paid his master two thousand dirhams and the blood-money for his injury is one thousand dirham he is free straightaway. If the blood-money of the injury is more than what remains of the kitaba, the master of the mukatab takes what remains of his kitaba and frees him. What remains after the payment of the kitaba belongs to the mukatab. One must not pay the mukatab any of the blood-money of his injury in case he might consume it and use it up. If he could not pay his kitaba completely, he would then return to his master one-eyed, with a hand cut off, or crippled in body. His master only wrote his kitaba against his property and earnings, and he did not write his kitaba so that he would take the blood-money for what happened to his child or to himself and then use it up and consume it. One pays the blood-money of injuries done to a mukatab and any children of his who are born in his kitaba, or whose kitaba is written, to the master and he takes it into account for him at the end of his kitaba."
39.5 Selling Mukatabs
7 Malik said, "The best of what is said about a man who buys the mukatab of a man is that if the man wrote the slave's kitaba for dinars or dirhams, he does not sell him unless it is for merchandise which is paid immediately and not deferred, because if it is deferred, it would be a debt for a debt. A debt for a debt is forbidden."
He said, "If the master has given a mukatab his kitaba in exchange for certain merchandise in the form of camels, cattle, sheep or slaves, it is more correct that a buyer buy him for gold, silver, or different goods than the ones his master wrote the kitaba for and such a payment must be paid immediately, not deferred."
Malik said, "The best of what I have heard about a mukatab when he is sold is that he is more entitled to buy his kitaba than the one who buys him, if he can pay his master the price for which he was sold in cash. That is because his buying himself is his freedom, and freedom has priority over whatever bequests accompany over whatever bequests accompany it. If one of those who have written the kitaba for the mukatab sells his portion of him so that a half, a third, a fourth or whatever share of the mukatab is sold, the mukatab does not have the right of pre-emption in what is sold of him. That is because it is like the severance of a partner, and he can only cut off part of his kitaba with the permission of his partners because what is sold of him does not give him complete rights as a free man and his property is barred from him, and by buying part of himself, it is feared that he will become incapable of completing payment because of what he has had to spend. That is not like the mukatab buying himself completely unless whoever has some of the kitaba remaining due to him gives him permission. If they give him permission, he is more entitled to what is sold of him."
Malik said, "Selling one of the instalments of a mukatab is not halal. This is because it is an uncertain transaction. If the mukatab cannot pay it, what he owes is nullified. If he dies or goes bankrupt and he owes debts to people, then the person who bought his instalment does not take any of his portion with the creditors. The person who buys one of the instalments of the mukatab is in the position of the master of the mukatab. The master of the mukatab does not have a share with the creditors of the mukatab for what he is owed of his slave's kitaba. It is the same with the kharaj (a set amount deducted daily from the slave against his earnings) which accumulates for a master from the earnings of his slave. The creditors of the slave do not allow him a share for whatever deductions have accumulated for him."
Malik said, "There is no harm in a mukatab paying towards his kitaba with coin or merchandise other than the merchandise for which he wrote the kitaba if it is identical with it, on time (for the instalment) or delayed."
Malik said that if a mukatab died and left an umm walad and small children by her or by someone else and they would not work and it was feared that they would be unable to fulfil their kitaba, the umm walad of the father was sold if her price would pay all the kitaba for them, whether or not she was their mother. They were paid for and set free because their father would not have forbidden her sale if he had feared that they would be unable to complete their kitaba. If her price would not cover the price for them and neither she nor they could work, they all reverted to being slaves of the master.
Malik said, "What is done among us in the case of a person who buys the kitaba of a mukatab, and then the mukatab dies before he has paid his kitaba, is that the person who bought the kitaba inherits from him. If, rather than dying, the mukatab cannot pay, the buyer has his person. If the mukatab pays his kitaba to the person who bought him and he is free, his wala' goes to the person who wrote the kitaba and the person who bought his kitaba does not have any of it."
39.6 The Labour of Mukatabs
8 Malik related to me that he heard that 'Urwa ibn az-Zubayr, when asked whether the sons of a man who had a kitaba written for himself and his children and then died worked for the kitaba of their father or were slaves, said, "They work for the kitaba of their father and they have no reduction at all for the death of their father."
Malik said, "If they are young and unable to work, one does not wait for them to grow up and they are slaves of their father's master unless the mukatab has left what will pay their instalments for them until they can work. If there is enough to cover their payments from what he has left, that is paid off on their behalf and they are left in their condition until they can work, and then if they pay, they are free. If they cannot manage it, they are slaves."
Malik, speaking about a mukatab who died and left property which was not enough to cover his kitaba and he also left a child with him in his kitaba and an umm walad, and the umm walad wanted to work for them, said, "The money is paid to her if she is trustworthy and strong enough to work. If she is not strong enough to work and not trustworthy with property, she is not given any of it and she and the children of the mukatab revert to being slaves of the master of the mukatab."
Malik said, "If people are written together in a single kitaba and there is no kinship between them, and some of them are incapable and others work until they are all set free, those who worked can claim from those who were unable to the portion of what they paid for them, because some of them assumed the responsibility for others."
39.7 Freeing a Mukatab on Payment of His Due before its Term
9 Malik related to me that he heard Rabi'a ibn Abi 'Abd ar-Rahman and others mention that al-Furafisa ibn 'Umar al-Hanafi had a mukatab who offered to pay him all of his kitaba that he owed. Al-Furafisa refused to accept it and the mukatab went to Marwan ibn al-Hakam who was the amir of Madina and brought up the matter. Marwan summoned al-Furafisa and told him to accept the payment, but he refused. Marwan then ordered that the payment be taken from the mukatab and placed in the treasury. He said to the mukatab, "Go, you are free." When al-Furafisa saw that, he took the money.
Malik said, "What is done among us when a mukatab pays all the instalments he owes before their term is that he is permitted to do so. The master cannot refuse him that. That is because payment removes every condition from the mukatab as well as service and travel. The setting free of a man is not complete while he has any remaining slavery, and in such a situation neither would his inviolability as a free man be complete and his testimony permitted and inheritance obliged and so on. His master must not make any stipulation of service on him after he has been set free."
Malik said that it was permitted for a mukatab who became extremely ill and wanted to pay his master all his instalments because his heirs who were free would then inherit from him and he had no children with him in his kitaba to do so because by that he completed his inviolability as a free man, his testimony was permitted, and his admission of what debts he owed to people was permitted. His bequest was permitted as well. His master could not refuse him that by claiming that he was escaping from him with his property.
39.8 The Inheritance of a Mukatab on Emancipation
10 Malik related to me that he had heard that Sa'd ibn al-Musayyab was asked about a mukatab who was shared between two men. One of them freed his portion and then the mukatab died leaving a lot of money. Sa'd replied, "The one who kept his kitaba is paid what remains due to him, and then they divide what is left between them both equally."
Malik said, "When a mukatab who fulfils his kitaba and becomes free dies, he is inherited from by the people who wrote his kitaba and their children and paternal relations - whoever is most deserving."
He said, "This is also for whoever is set free before he dies - his inheritance is for the nearest people to him of children or paternal relations who inherit by means of the wala'."
Malik said, "Brothers, written together in the same kitaba, are in the same position as each other's children when none of them have children written in the kitaba or born in the kitaba. When one of them dies and leaves property, he pays for them whatever remains against them of their kitaba and sets them free. The money left over after that goes to any children he may have rather than to his brothers."
39.9 Conditions Concerning Mukatabs
11 Malik spoke to me about a man who wrote a kitaba for his slave for gold or silver and stipulated against him in his kitaba a journey, service, sacrifice or similar, which he specified by name, and then the mukatab was able to pay all his instalments before the end of the term. He said, "If he pays all his instalments and is set free and his inviolability as a free man is complete, but he still has this condition to fulfil, the condition is examined, and whatever involves his person in it, like service or a journey, etc., is removed from him and his master has nothing against him for it. Whatever there is of sacrifice, clothing or anything that he must pay that can be treated as dinars and dirhams is valued and he pays it along with his instalments, and he is not free until he has paid that along with his instalments."
Malik said, "The generally agreed on way of doing things among us about which there is no dispute is that a mukatab is in the same position as a slave whom his master will free after a service of ten years. If the master dies before ten years, what remains of his service goes to his heirs and his wala' goes to the one who contracted to free him and to his male children or paternal relations."
Malik spoke about a man who stipulated against his mukatab that he could not travel, marry, or leave his land without his permission, and that if he did so without his permission it was in his power to cancel the kitaba. He said, "If the mukatab does any of these things, it is not in the man's power to cancel the kitaba. Let the master put that before the ruler. The mukatab, however, should not marry, travel, or leave the land of his master without his permission, whether or not he stipulates it. That is because the man may write a kitaba for his slave for one hundred dinars and the slave may have one thousand dinars or more. He goes off and marries a woman and pays her bride-price which wipes away his money and then he cannot pay. He reverts to his master as a slave without property. Or else he may travel and his instalments fall due while he is away. He cannot do so, and kitaba is not based on such behaviour. That is in the hand of his master. If he wishes, he gives him permission for it. If he wishes, he refuses it."
39.10 The Wala' of the Mukatab when He is Set Free
12 Malik said, "When a mukatab sets his own slaves free, it is only permitted with the consent of his master. If his master gives him consent and the mukatab sets his slave free, his wala' goes to the mukatab. If the mukatab then dies before he has been set free himself, the wala' of the freed slave goes to the master of the mukatab. If the freed one dies before the mukatab has been set free, the master of the mukatab inherits from him."
Malik said, "It is the same when a mukatab gives his slave a kitaba and his mukatab is set free before he is himself. The wala' goes to the master of the mukatab as long as he is not free. If the person who wrote the kitaba is set free, then the wala' of his mukatab who was freed before him reverts to him. If the first mukatab dies before he pays or he cannot pay his kitaba and has free children, they do not inherit the wala' of their father's mukatab because the wala' has not been established for their father and he does not have the wala' until he is free."
Malik, speaking about a mukatab who was shared between two men and one of them forewent what the mukatab owed him and the other insisted on his due, then the mukatab died and left property, said, "The one who did not abandon any of what he was owed is paid in full. Then the property is divided between them both just as if a slave had died, because what the first one did was not setting him free - he only abandoned a debt that was owed to him."
Malik explained, "One thing that makes this clear is that when a man dies and leaves a mukatab and he also leaves male and female children and one of the children frees his portion of the mukatab, that does not establish any of the wala' for him. Had it been a true setting free, the wala' would have been established for whichever men and women freed him."
Malik continued, "Another thing that makes this clear is that if one of them freed his portion and then the mukatab could not pay, the value of what was left of the mukatab would be adjusted because of the one who freed his portion. Had it been a true setting-free, his estimated value would have been taken from the property of the one who set free until he had been set completely free, as the Messenger of Allah, may Allah bless him and grant him peace, said, 'Whoever frees his share in a slave, justly evaluated for him, gives his partners their shares. If not he frees of him what he frees.' " (See Book 37 hadith 1)
He added, "Another thing that makes this clear is that part of the sunna of the Muslims in which there is no dispute, is that whoever frees his share of a mukatab, the mukatab is not set fully free using his property. Had he been truly set free, the wala' would have been his alone rather than his partners. Another clarification is that part of the sunna of the Muslims is that the wala' belongs to whoever writes the contract of kitaba. The women who inherit from the master of the mukatab do not have any of the wala' of the mukatab. If they free any of their shares, the wala' belongs to the male children of the master of the mukatab or his male paternal relations."
39.11 What is Not Permitted in Freeing a Mukatab
13 Malik said, "If people are together in the same kitaba, their master cannot free one of them without consulting any companions he may have in the kitaba and obtaining their consent. If they are young, however, their consultation means nothing and it is not permitted to them. That is because a man might work for all the people and he might pay their kitaba for them to complete their freedom. The master approaches the one who will pay for them and on whom their delivery from slavery depends and frees him and so makes those who remain unable to pay. He does it intending benefit and increase for himself. It is not permitted for him to do that to those of them who remain. The Messenger of Allah, may Allah bless him and grant him peace, said, 'There must be no harm nor return of harm.' This is the most severe harm."
Malik said about slaves who wrote a kitaba together that it was permitted for their master to free the old and exhausted of them and the young when such a one could not pay anything, and there was no help nor strength contributed by them in the kitaba.
39.12 Freeing the Mukatab and the Umm Walad
14 Malik, speaking about a man who had his slave in a kitaba and then the mukatab died and left his umm walad, and there remained for him some of his kitaba to pay off and he left what would cover it, said, "The umm walad is a slave since the mukatab was not freed until he died, and he did not leave children that were set free by his paying what remained so that the umm walad of their father was freed by their being set free."
Malik said about a mukatab who set free a slave of his or gave sadaqa with some of his property and his master did not know about it until he had set the mukatab free, "That is what has been done and the master does not rescind it. If the master of the mukatab learns about it before he sets the mukatab free, he can reject it and not permit it. If the mukatab is then freed and it becomes in his power to do so, he does not have to free the slave nor give the sadaqa unless he does it voluntarily on his own."
39.13 Bequests Involving Mukatabs
15 Malik said, "The best of what I have heard about a mukatab whose dying master frees him is that the mukatab is valued according to what he would fetch if he were sold. If that value is less than what remains against him of his kitaba, his freedom is taken from the third that the deceased can bequeath. One does not consider the number of dirhams which remain against him in his kitaba. That is because, had he been killed, his killer would not be in debt for other than his value on the day he killed him. Had he been injured, the one who injured him would not be liable for other than the blood-money of the injury on the day of his injury. One does not look at how much he has paid of dinars and dirhams of the contract he has written because he is a slave as long as any of his kitaba remains. If what remains in his kitaba is less than his value, only whatever of his kitaba remains owing from him is taken into account in the third of the property of the deceased. That is because the deceased leaves him what remains of his kitaba and so it becomes a bequest which the deceased has made."
Malik said, "An illustration of that is that if the price of the mukatab is one thousand dirhams, and only one hundred dirhams of his kitaba remain, his master leaves him the one hundred dirhams which complete it for him. It is taken into account in the third of his master and by it he becomes free."
Malik said that if a dying man wrote his slave a kitaba, the value of the slave was estimated. If there was enough to cover the price of the slave in one third of his property, it was permitted for him to do so.
Malik said, "An illustration of that is that there is a slave worth one thousand dinars. His master writes him a kitaba for two hundred dinars as he is dying. A third of the property of the master is one thousand dinars, so that is permitted for him. It is simply a bequest which he makes from one third of his property. If the master has left bequests to people and there is no surplus in the third after the value of the mukatab, one begins with the mukatab, they follow it because the kitaba is setting free, and setting free takes priority over other bequests. When those bequests are paid from the kitaba of the mukatab, the heirs of the testator have a a choice. If they want to give the people with bequests all their bequests and the kitaba of the mukatab is theirs, they have that. If they refuse and hand over the mukatab and what he owes to the people with bequests they can do so, because the third commences with the mukatab and because all the bequests which he makes are as one."
If the heirs then say, "What our fellow bequeathed was more than one third of his property and he has taken what was not his," Malik said, "His heirs choose. They are told, 'Your companion has made the bequests you know about and if you would like to give them to those who are to receive them according to the deceased's bequests, then do so. If not, hand over to the people with bequests one third of the total property of the deceased.'"
Malik continued, "If the heirs surrender the mukatab to the people with bequests, the people with bequests have what he owes of his kitaba. If the mukatab pays what he owes of his kitaba, they take that as their bequests according to their shares. If the mukatab cannot pay, he is a slave of the people with bequests and does not return to the heirs because they gave him up when they made their choice, and because when he was surrendered to the people with bequests, they were liable. If he died, they would not have anything against the heirs. If the mukatab dies before he pays his kitaba and he leaves property worth more than what he owes, his property goes to the people with bequests. If the mukatab pays what he owes, he is free and his wala' returns to the paternal relations of the one who wrote the kitaba for him."
Malik, speaking about a mukatab who owed his master ten thousand dirhams in his kitaba and when the master died, he remitted one thousand dirhams from it. He said, "The mukatab is valued and dirhams in his kitaba and then, when the master died, he remitted one thousand dirhams from it, said, "The mukatab is valued and his value is looked at. If his value is one thousand dirhams and the reduction is a tenth of the kitaba, that portion of the slave's price is one hundred dirhams, being a tenth of the price. A tenth of the kitaba is therefore reduced for him - that is converted to a tenth of the price in cash. That is as if he had had all of what he owed reduced for him. Had he done that, only the value of the slave - one thousand dirhams - would have been taken into account in the third of the property of the deceased. If that which he had remitted is half of the kitaba, half the price is taken into account in the third of the property of the deceased. If it is more or less than that, it is according to this reckoning."
Malik said, "When a man reduces the kitaba of his mukatab by one thousand dirhams at his death from a kitaba of ten thousand dirhams, and he does not stipulate whether it is from the beginning or the end of his kitaba, each instalment is reduced for him by one-tenth."
Malik said, "If a man dies and remits one thousand dirhams from his mukatab from the beginning or the end of his kitaba, and the original basis of the kitaba is three thousand dirhams, then then the mukatab's cash value is estimated. Then that value is divided. That thousand which is from the beginning of the kitaba is converted into its portion of the price according to its proximity to the term and its precedence and then the thousand which follows the first thousand is according to its precedence also until it comes to its end, and every thousand is paid according to its place in advancing and deferring the term because what is deferred of that is less in respect of its price. Then it is placed in the third of the deceased according to whatever of the price befalls that thousand according to the difference in preference of that, whether it is more or less, then it is according to this reckoning."
Malik, speaking about a man bequeathing another man a fourth of a mukatab, or freeing a fourth, and then the first man died and the mukatab died and left a lot of property, more than he owed, said, "The heirs of the first master and the one who was willed a fourth has a third of what is left over, and the one willed a fourth has a third of what is left over after the kitaba is paid. The heirs of his master get two-thirds. That is because the mukatab is a slave as long as any of his kitaba remains to be paid. He is inherited from by the possession of his person."
Malik said about a mukatab whose dying master frees him, "If the third of the deceased will not cover him, he is freed from it according to what the third will cover and his kitaba is decreased accordingly. If the mukatab owed five thousand dirhams and his value is two thousand dirhams cash, and the third of the deceased amount to one thousand dirhams, half of him is freed and half of the kitaba has been reduced for him."
Malik said about a man who said in his will, "My slave so-and-so is free and write a kitaba for so-and-so" that the setting free had priority over the kitaba.
40 The Mudabbar
40.1 Judgement on the Mudabbar
1 Yahya related to me that Malik said, "What is done in our community in the case of a man who makes his slave-girl a mudabbara and she gives birth to children after that, and then the slave-girl dies before the one who gave her a tadbir is that her children are in her position. The conditions which were confirmed for her are confirmed for them. The death of their mother does not harm them. If the one who made her mudabbara dies, they are free if their value is less than one-third of his total property."
Malik said, "For every mother by birth as opposed to mother by suckling, her children are in her position. If she is free and she gives birth after she is free, her children are free. If she is a mudabbara or mukataba, or freed after a number of years in service, or part of her is free and pledged or she is an umm walad, any children she has are in the same position as their mother. They are set free when she is set free and they are slaves when she is a slave."
Malik said about the mudabbara given a tadbir while she was pregnant: "Her children are in her position. That is also the position of a man who frees his slave-girl while she is pregnant and does not know that she is pregnant."
Malik said, "The sunna about such women is that their children follow them and are set free by their being set free."
Malik said, "It is the same as if a man had bought a slave-girl while she was pregnant. The slave-girl and what is in her womb belong to the one who has bought her whether or not the buyer stipulates that."
Malik continued, "It is not halal for the seller to make an exception about what is in her womb because that is an uncertain transaction. It reduces her price and he does not know if that will reach him or not. It is as if one were selling the foetus in the womb of the mother. That is not halal because it is an uncertain transaction."
Malik said about the mukatab or mudabbar who bought a slave-girl and had intercourse with her and she became pregnant by him and gave birth, "The children of either of them by a slave-girl are in the same position as himself. They are set free when he is set free and they are slaves while he is a slave."
Malik said, "When he is set free, the umm walad is part of his property which is surrendered to him when he is set free."
40.2 General Section on Tadbir
2 Malik, speaking about a mudabbar who says to his master, "Free me immediately and I will give you fifty dinars which I will have to pay in instalments." His master says, "Yes, you are free and you must pay me fifty dinars and you will pay me ten dinars every year." The slave is satisfied with this. Then the master dies one, two or three days later, said, "The freeing is confirmed and the fifty dinars become a debt against him. His testimony is permitted, his inviolability as a free man is confirmed, as are his inheritance and his liability to the full hudud punishments. The death of his master, however, does not reduce the debt for him at all."
Malik said that if a man who made his slave a mudabbar died and he had some property on hand and some absent property, and in the property on hand there was not enough (in the third he was allowed to bequeath) to cover the value of the mudabbar, the mudabbar was kept there together with the property, and his tax (kharaj) was gathered until the master's absent property was clear. Then if a third of what his master left would cover his value, he was freed with his property and what had gathered of his tax. If there was not enough to cover his value in what his master had left, as much of him was freed as the third would allow, and his property was left in his hands.
40.3 Bequests Involving Tadbir
3 Malik said, "The generally agreed on way of doing things in our community is that any setting-free which a man makes in a bequest that he wills in health or illness can be rescinded by him when he likes and changed when he likes as long as it is not a tadbir. There is no way to rescind a tadbir once he has made it.
"As for every child born to him by a slave-girl whom he wills be set free but does not make mudabbara, her children are not freed with her when she is freed. That is because her master can change his will when he likes and rescind it when he likes, and being set free is not confirmed for her. She is in the position of a slave-girl whose master says, 'If so-and-so remains with me until I die, she is free.' " (i.e. he does not make a definite contract.)
Malik said, "If she fulfils such a condition, that right is hers. If he wishes to do so before the fulfilment of the condition, he can sell her and her child because he has not included her child in any condition he has made for her.
"The bequest of setting free is different from tadbir. The precedent of the sunna makes a distinction between them. Had a bequest been in the position of a tadbir, no testator would be able to change his will and whatever he mentioned in it of setting-free. His property would be tied up and he would not be able to use it."
Malik said about a man who made all his slaves mudabbar while he was well and they were his only property, "If he made some of them mudabbar before the others, one begins with the first until the third of his property is reached (i.e. their value is matched against the third, and those whose value are covered are free.) If he makes them all mudabbar in his terminal illness and says in one statement, 'So-and-so is free. So-and-so is free. So-and-so is free if my death occurs in this illness,' or he makes them all mudabbar in the same statement, they are matched against the third and one does not begin with any of them before the others. It is a bequest and they have a third of his property divided between them in shares. Then the third of his property frees each of them according to the extent of his share. No single one of them is given preference when that all occurs in his illness."
Malik spoke about a master who made his slave a mudabbar and then he died and the only property he possessed was the mudabbar slave and the slave had property. He said, "A third of the mudabbar is freed and his property remains in his possession."
Malik said about a mudabbar whose master gave him a kitaba and then the master died and did not leave any property other than him, "A third of him is freed and a third of his kitaba is reduced, and he owes two-thirds."
Malik spoke about a man who freed half of his slave while he was ill and made irrevocable his freeing half of him or all of him, and he had made another slave of his mudabbar before that. He said, "One begins with the slave he made mudabbar before the one he freed while he was ill. That is because the man cannot revoke what he has made mudabbar and cannot follow it with a matter which will rescind it. When this mudabbar is freed, then what remains of the third goes to the one who had half of him freed so as to complete his setting-free entirely in the third of the property of the deceased. If what is left of the third does not cover that, whatever is covered by what is left of the third is freed after the first mudabbar is freed."
40.4 A Master's Intercourse with His Muddabara
4 Malik related to me from Nafi' that 'Abdullah ibn 'Umar made two of his slave-girls mudabbara, and he had intercourse with them while they were mudabbara.
5 Malik related to me from Yahya ibn Sa'id that Sa'id ibn al-Musayyab used to say, "When a man makes his slave-girl mudabbara he can have intercourse with her. He cannot, however, sell her or give her away and her children are in the same position as her."
40.5 Selling Mudabbars
6 Malik said, "The generally agreed on way of doing things in our community about a mudabbar is that the owner cannot sell him or change the position in which he has put him. If a debt overtakes the master, his creditors cannot sell the mudabbar as long as the master is still alive. If the master dies and has no debts, the mudabbar is included in the third (of the bequest) because the master expected his work from him as long as he lived. He cannot serve the master all of his life, and then have the master free him from his heirs out of the main portion of his property when he dies. If the master of the mudabbar dies and has no property other than him, one third of him is freed, and two-thirds of him belong to the heirs. If the master of the mudabbar dies and owes a debt which encompasses the mudabbar, he is sold to meet the debt because he can only be freed in the third (which is allowed for the bequests)."
He said, "If the debt only includes half of the slave, half of him is sold for the debt. Then a third of what remains after the debt is freed."
Malik said, "It is not permitted to sell a mudabbar and it is not permitted for anyone to buy him unless the mudabbar buys himself from his master. He is permitted to do that. Or else someone gives the master of a mudabbar money to free him. That is also permittted for him."
Malik said, "His wala' belongs to his master who made him a mudabbar."
Malik said, "It is not permitted to sell the service of a mudabbar because it is an uncertain transaction since one does not know how long his master will live. That is uncertain and it is not good."
Malik spoke about a slave who was shared between two men and one of them made his portion mudabbar. He said, "They estimate his value between them. If the one who made him mudabbar buys him, he is all mudabbar. If he does not buy him, his tadbir is revoked unless the one who retains ownership of him wishes to give his partner who made him mudabbar his value. If he gives him to him for his value, that is binding, and he is all mudabbar."
Malik spoke about the Christian man who made a Christian slave of his mudabbar and then the slave became Muslim. He said, "One separates the master and the slave, and the slave is removed from his Christian master and is not sold until his situation becomes clear. If the Christian dies owing a debt, his debt is paid from the price of the slave unless he has in his estate enough to cover the debt. Then the mudabbar is set free."
40.6 Injuries Caused by Mudabbars
7 Malik related to me that he heard that 'Umar ibn 'Abd al-'Aziz gave a judgement about the mudabbar who did an injury. He said, "The master must surrender what he owns of him to the injured person. He is made to serve the injured person and recompense (in the form of service) is taken from him as the blood-money of the injury. If he completes that before his master dies, he reverts to his master."
Malik said, "The generally agreed on way of doing things in our community about a mudabbar who does an injury and then his master dies and the master has no property except him is that the third (allowed to be bequeathed) is freed, and then the blood-money for the injury is divided into thirds. A third of the blood-money is against the third of him which was set free, and two-thirds are against the two-thirds which the heirs have. If they wish, they surrender what they have of him to the party with the injury, and if they wish, they give the injured person two-thirds of the blood-money and keep their portion of their slave. That is because that injury is a criminal action by the slave and it is not a debt against the master by which whatever setting free and tadbir the master had done would be abrogated. If there were a debt to people against the master of the slave, as well as the criminal action of the slave, part of the mudabbar would be sold in proportion to the blood-money of the injury and according to the debt. Then one would begin with the blood-money which was for the criminal action of the slave and it would be paid from the price of the slave. Then the debt of his master would be paid, and then one would look at what remained of the slave after that. His third would be set free, and two-thirds of him would belong to the heirs. That is because the criminal action of the slave is more pressing than the debt of his master, and so, if the man dies and leaves a mudabbar slave whose value is one hundred and fifty dinars, and the slave strikes a free man on the head with a blow that lays the skull open, and the blood-money is fifty dinars, and the master of the slave has a debt of fifty dinars, one begins with the fifty dinars which are the blood-money of the head wound, and it is paid from the price of the slave. Then the debt of the master is paid. Then one looks at what remains of the slave, and a third of him is set free and two-thirds of him remain for the heirs. The blood-money is more pressing against his person than the debt of his master. The debt of his master is more pressing than the tadbir which is a bequest from the third of the property of the deceased. None of the tadbir is permitted while the master of the mudabbar has a debt which is unpaid since it is a bequest. That is because Allah, the Blessed, the Exalted, says, 'After any bequest made or any debts.' (4:11)."
Malik continued, "If there is enough in the third of the property that the deceased can bequeath to free all the mudabbar, he is freed and the blood-money due from his criminal action is held as a debt against him which follows him after he is set free even if that blood-money is the full blood-money. It is not a debt on the master."
Malik spoke about a mudabbar who injured a man and his master surrendered him to the injured party, and then the master died and had a debt and did not leave any property other than the mudabbar. The heirs said, "We offered to surrender the mudabbar to the injured party." whilst the creditor said, "My debt exceeds that." Malik said that if the creditor's debt did not exceed that at all, he was more entitled to it and it was taken from the one who owed the debt, according to what the creditor was owed in excess of the blood-money of the injury. If his debt did not exceed it at all, he did not take the slave.
Malik spoke about a mudabbar who did an injury and had property, and his master refused to stand security for him. He said, "The injured party takes the property of the mudabbar for the blood-money of his injury. If there is enough to pay it, the injured party is paid in full for the blood-money of his injury and the mudabbar is returned to his master. If there is not enough to pay it, he takes the blood-money from it and uses the mudabbar for what remains of the blood-money."
40.7 Injuries Caused by an Umm Walad
8 Malik said in the case of an umm walad who injured someone, "The blood-money of the injury is the responsibility of her master from his property, unless the blood-money of the injury is greater than the value of the umm walad. Her master does not have to pay more than her value. That is because when the master of a slave or slave-girl surrenders his slave or slave-girl for an injury which one of them has done, he does not owe any more than that, even if the blood-money is greater. As the master of the umm walad cannot surrender her because of the precedent of the sunna, it is as if he had surrendered her when he pays her price. He does not have to pay more than that. This is the best of what I have heard about the matter. The master is not obliged to assume responsibility for more than an umm walad's value because of her criminal action."
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