Yahya related to me from Malik from Rabia ibn Abd ar-Rahman that
al-Qasim ibn Muhammad and Urwa ibn az-Zubayr gave the same judgement
to al-Walid ibn Abd al-Malik in the year of his arrival in Madina
except that al-Qasim ibn Muhammad said that he divorced his wife on
various occasions. (i.e. not at one time).
Yahya related to me from Malik from Ibn Shihab that Rafi ibn
Khadij married the daughter of Muhammad ibn Maslama al-Ansari. She was
with him until she grew older, and then he married a young girl and
preferred the young girl to her. She begged him to divorce her, so he
divorced her and then he gave her time until she had almost finished
her idda period and then he returned and still preferred the young
girl. She therefore asked him to divorce her. He divorced her once,
and then returned to her, and still preferred the young girl, and she
asked him to divorce her. He said, "What do you want? There is only
one divorce left. If you like, continue and put up with what you see
of preference, and if you like, I will separate from you." She said,
"I will continue in spite of the preference." He kept her in spite of
that. Rafi did not see that he had done any wrong action when she
remained with him in spite of preference.
Yahya related to me from Malik that he had heard that a man said
to Abdullah ibn Abbas, "I have divorced my wife by saying I divorce
you a hundred times. What do you think my situation is?" Ibn Abbas
said to him, "She was divorced from you by three pronouncements, and
by the ninety-seven, you have mocked the ayat of Allah."
Yahya related to me from Malik that he had heard that a man came
to Abdullah ibn Masud and said, "I have divorced my wife by saying I
divorce you eight times." Ibn Masud said to him, "What have people
told you?" He replied, "I have been told that I have to part
absolutely from her." Ibn Masud said, "They have spoken the truth. A
person who divorces as Allah has commanded, Allah makes it clear for
him, and a person who obscures himself in error, we make stay by his
error. So do not confuse yourselves and pull us into your confusion.
It is as they have said."
Yahya related to me from Malik from Yahya ibn Said from Abu Bakr
ibn Hazm thatUmar ibn Abd al-Aziz had asked him what people said about
the 'irrevocable' divorce, and Abu Bakr had replied that Aban ibn
Uthman had clarified that it was declared only once. Umar ibn Abd al-
Aziz said, "Even if divorce had to be declared a thousand times,
the'irrevocable' would use them all up. A person who says,
'irrevocably' has cast the furthest limit."
Yahya related to me from Malik from Ibn Shihab that Marwan ibn
al-Hakam decided that if someone made three pronouncements of divorce,
he had divorced his wife irrevocably.
Malik said, "That is
what I like best of what I have heard on the subject."
29.2
Divorce by Euphemistic Statements
Yahya related to me from Malik that he had heard that Umar ibn
al-Khattab had heard in a letter from Iraq that a man said to his
wife, "Your rein is on your withers (i.e. you have free rein)." Umar
ibn al-Khattab wrote to his governor to order the man to come to him
at Makka at the time of hajj. While Umar was doing tawaf around the
House, a man met him and greeted him. Umar asked him who he was, and
he replied that he was the man that he had ordered to be brought to
him. Umar said to him, "I ask you by the Lord of this building, what
did you mean by your statement, 'Your rein is on your withers.'?" The
man replied, "Had you made me swear by other than this place, I would
not have told you the truth. I intended separation by that." Umar ibn
al- Khattab said, "It is what you intended."
Yahya related to me from Malik that he had heard that Ali ibn Abi
Talib used to say that if a man said to his wife, "You are haram for
me," it counted as three pronouncements of divorce.
Malik
said, "That is the best of what I have heard on the subject."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said that statements like "I cut myself off from you",or"You are
abandoned", were considered as three pronouncements of divorce.
Malik said that any strong statements such as these or others were
considered as three pronouncements of divorce for a woman whose
marriage had been consummated. In the case of a woman whose marriage
had not been consummated, the man was asked to make an oath on his
deen, as to whether he had intended one or three pronouncements of
divorce. If he had intended one pronouncement, he was asked to make an
oath by Allah to confirm it, and he became a suitor among other
suitors, because a woman whose marriage had been consummated, required
three pronouncements of divorce to make her inaccessible for the
husband, whilst only one pronouncement was needed to make a woman
whose marriage had not been consummated inaccessible.
Malik
added, "That is the best of what I have heard about the matter."
Yahya related to me from Malik from Yahya ibn Said from al-Qasim
ibn Muhammad that a certain man had taken a slave-girl belonging to
somebody else as a wife. He said to her people, "She is your concern,"
and people considered that to be one pronouncement of divorce.
Yahya related to me from Malik that he heard Ibn Shihab say that
if a man said to his wife, "You are free of me, and I am free of you,
" it counted as three pronouncements of divorce as if it were an
'irrevocable' divorce.
Malik said that if a man made any
strong statement such as these to his wife, it counted as three
pronouncements of divorce for a woman whose marriage had been
consummated, or it was written as one of three for a woman whose
marriage had not been consummated, whichever the man wished. If he
said he intended only one divorce he swore to it and he became one of
the suitors because, whereas a woman whose marriage had been
consummated was made inaccessible by three pronouncements of divorce,
the woman whose marriage had not been consummated was made
inaccessible by only one pronouncement.
Malik said, "That is
the best of what I have heard."
Yahya related to me from Malik that he had heard that a man came
to Abdullah ibn Umar, and said, "Abu Abd ar-Rahman! I placed the
command of my wife in her hand, and she divorced herself, what do you
think?" Abdullah ibn Umar said, "I think that it is as she said." The
man said, "Don't do it, Abu Abd ar-Rahman!" Ibn Umar said, "You did
it, it has nothing to do with me."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said, "When a man gives a woman command over herself, then the result
is as she decides unless he denies it and says that he only meant to
give her one divorce and he swears to it - then he has access to her
while she is in her idda."
Yahya related to me from Malik from Said ibn Sulayman ibn Zayd
ibn Thabit that Kharija ibn Zayd ibn Thabit told him that he was
sitting with Zayd ibn Thabit when Muhammad ibn Abi Atiq came to him
with his eyes brimming with tears. Zayd asked him what the matter was.
He said, "I gave my wife command of herself, and she separated from
me." Zayd said to him, "What made you do that?" He said, "The Decree."
Zayd said, "Return to her if you wish for it is only one
pronouncement, and you have access to her."
Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasim
from his father that a man of Thaqif gave his wife command over
herself, and she said, "You are divorced." He was silent. She said,
"You are divorced." He said, "May a stone be in your mouth." She said,
"You are divorced." He said, "May a stone be in your mouth." They
argued and went to Marwan ibn al-Hakam. He took an oath that he had
only given her control over one pronouncement, and then she returned
to him.
Malik said that Abd ar-Rahman declared that this
decision had amazed al-Qasim, who thought it the best that he had
heard on the subject.
Malik added, "That is also the best of
what I have heard on the subject."
Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasim
from his father that A'isha, umm al-muminin, proposed to Qurayba bint
Abi Umayya on behalf of Abd ar-Rahman ibn Abi Bakr. They married her
to him and her people found fault with Abd ar-Rahman and said, "We
only gave in marriage because of A'isha." A'isha therefore sent for
Abd ar-Rahman and told him about it. He gave Qurayba authority over
herself and she chose her husband and so there was no divorce.
Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasim
from his father that A'isha, the wife of the Prophet, may Allah bless
him and grant him peace, gave Hafsa bint Abd arRahman in marriage to
al-Mundhir ibn az-Zubayr while Abd ar-Rahman was away in Syria. When
Abd ar-Rahman arrived, he said, "Shall someone like me have this done
to him? Am I the kind of man to have something done to him without his
consent?" A'isha spoke to al-Mundhir ibn az-Zubayr, and al-Mundhir
said, "It is in the hands of Abd ar-Rahman." Abd ar-Rahman said, "I
won't oppose something that you have already completed." Hafsa was
confirmed with al-Mundhir, and there was no divorce.
Yahya related to me from Malik that he had heard that Abdullah
ibn Umar and Abu Hurayra were asked about a man who gave his wife
power over herself, and she returned it to him without doing anything
with it. They said that there was no divorce. (i.e. The man's giving
his wife power over herself was not interpreted as a desire for
divorce on his part.)
Yahya related to me from Malik from
Yahya ibn Said that Said ibn al-Musayyab said, "If a man gives his
wife authority over herself, and she does not separate from him and
remains with him, there is no divorce."
Malik said that a
woman whose husband gave her power over herself and they separated
while she was unwilling, had no power to revoke the divorce. She only
had power over herself as long as they remained together.
Yahya related to me from Malik from Jafar ibn Muhammad from his
father that Ali ibn Abi Talib said, "When a man takes a vow to abstain
from intercourse, divorce does not occur immediately. If four months
pass, he must declare his intent and either he is divorced or he
revokes his vow . "
Malik said, "That is what is done among
us."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said, "When a man makes a vow to abstain from intercourse with his
wife and four months have passed he must declare his intent and either
he is divorced or he revokes his vow. Divorce does not occur until
four months have passed and he continues to abstain."
Yahya
related to me from Malik from Ibn Shihab that Said al-Musayyab and Abu
Bakr ibn Abd ar-Rahman said about a man who made a vow to abstain from
intercourse with his wife, "If four months pass it is a divorce. The
husband can go back to his wife as long as she is in her idda."
Yahya related to me from Malik that he had heard that Marwan ibn
al-Hakam decided about a man who had made a vow to abstain from
intercourse with his wife, that when four months had passed, it was a
divorce and he could return to her as long as she was in her idda.
Malik added, "That was also the opinion of Ibn Shihab."
Malik said that if a man made a vow to abstain from intercourse
with his wife and at the end of four months he declared his intent to
continue to abstain, he was divorced. He could go back to his wife,
but if he did not have intercourse with her before the end of her
idda, he had no access to her and he could not go back to her unless
he had an excuse - illness, imprisonment, or a similar excuse. His
return to her maintained her as his wife. If her idda passed and then
he married her after that and did not have intercourse with her until
four months had passed and he declared his intent to continue to
abstain, divorce was applied to him by the first vow. If four months
passed, and he had not returned to her, he had no idda against her nor
access because he had married her and then divorced her before
touching her.
Malik said that a man who made a vow to abstain
from intercourse with his wife and continued to abstain after four
months and so divorced her, but then returned and did not touch her
and four months were completed before her idda was completed, did not
have to declare his intent and divorce did not befall him. If he had
intercourse with her before the end of her idda, he was entitled to
her. If her idda passed before he had intercourse with her, he had no
access to her. This is what Malik preferred of what he had heard on
the subject.
Malik said that if a man made a vow to abstain
from intercourse with his wife and then divorced her, and the four
months of the vow were completed before completion of the idda of the
divorce, it counted as two pronouncements of divorce. If he declared
his intention to continue to abstain and the idda of the divorce
finished before the four months the vow of abstention was not a
divorce. That was because the four months had passed and she was not
his on that day.
Malik said, "If someone makes a vow not to
have intercourse with his wife for a day or a month and then waits
until more than four months have passed, it is not ila. Ila only
applies to someone who vows more than four months. As for the one who
vows not to have intercourse with his wife for four months or less
than that, I do not think that it is ila because when the term enters
into it at which it stops, he comes out of his oath and he does not
have to declare his intention."
Malik said, "If someone vows
to his wife not to have intercourse with her until her child has been
weaned, that is not ila. I have heard that Ali ibn Abi Talib was asked
about that and he did not think that it was ila."
Yahya related to me from Malik that he had asked Ibn Shihab about
the ila of the slave. He said that it was like the ila of the free
man, and it put an obligation on him. The ila of the slave was two
months.
Yahya related to me from Malik from Said ibn Amr ibn Sulaym az-
Zuraqi that he asked al-Qasim ibn Muhammad about a man who made
divorce conditional on his marrying a woman i.e. if he married her he
would automatically divorce her. Al-Qasim ibn Muhammad said, "If a man
marries a woman whom he has made as his mother's back, i.e. has made
haram for him, Umar ibn al-Khattab ordered him not to go near her if
he married her until he had done the kaffara for pronouncing dhihar."
Yahya related to me from Malik that he had heard that a man asked
al-Qasim ibn Muhammad and Sulayman ibn Yasar about a man who
pronounced dhihar from his wife before he had married her. They said,
"If he marries her, he must not touch her until he has done the
kaffara for pronouncing dhihar."
Yahya related to me from Malik from Hisham ibn Urwa that his
father said that a man who pronounced a dhihar from his four wives in
one statement, had only to do one kaffara. Yahya related the same as
that to me from Malik from Rabia ibn Abi Abd ar-Rahman.
Malik
said, "That is what is done among us. Allah, the Exalted said about
the kaffara for pronouncing dhihar, 'It is to free a slave before they
touch one another. If he does not find the means to do that, then
fasting for two consecutive months before they touch one another. If
he cannot do that, it is to feed sixty poor people. ' " (Sura 58 ayats
4,5).
Malik said that a man who pronounced dhihar from his
wife on various occasions had only to do one kaffara. If he pronounced
dhihar, and then did kaffara, and then pronounced dhihar after he had
done the kaffara, he had to do kaffara again.
Malik said,
"Some one who pronounces dhihar from his wife and then has intercourse
with her before he has done kaffara, only has to do one kaffara. He
must abstain from her until he does kaffara and ask forgiveness of
Allah. That is the best of what I have heard. "
Malik said,
"It is the same with dhihar using any prohibited relations of
fosterage and ancestry."
Malik said, "Women have no dhihar."
Malik said that he had heard that the commentary on the word
of Allah, the Blessed, the Exalted, "Those of you who pronounce the
dhihar about their wives, and then retract what they have said," (Sura
56 ayat 3), was that a man pronounced dhihar on his wife and then
decided to keep her and have intercourse with her. If he decided on
that, he must do kaffara. If he divorced her and did not decide to
retract his dhihar of her and to keep her and have intercourse with
her, there would be no kaffara incumbent on him.
Maliksaid,
"If he marries her after that, he does not touch her until he has
completed the kaffara of pronouncing dhihar."
Malik said that
if a man who pronounced dhihar from his slave-girl wanted to have
intercourse with her, he had to do the kaffara of the dhihar before he
could sleep with her.
Malik said, "There is no ila in a man's
dhihar unless it is evident that he does not intend to retract his
dhihar."
Yahya related to me from Malik from Hisham ibn Urwa that he heard
a man ask Urwa ibn az-Zubayr about a man who said to his wife, "Any
woman I marry along with you as long as you live will be like my
mother's back to me." Urwa ibn az-Zubayr said, "The freeing of slaves
is enough to release him from that."
ahya related to me from Malik that he asked Ibn Shihab about the
dhihar of a slave. He said, "It is like the dhihar of a free man."
Malik said, "He meant that the same conditions were applied
in both cases."
Malik said, "The dhihar of the slave is
incumbent on him, and the fasting of the slave in the dhihar is two
months. "
Malik said that there was no ila for a slave who
pronounced a dhihar from his wife. That was because if he were to fast
the kaffara for pronouncing a dhihar, the divorce of the ila would
come to him before he had finished the fast.
USC-MSA web (English) reference : Book 29, Hadith 24
Hadith 511810
Chapter 29: Divorce - كتاب الطلاق
Yahya related to me from Malik from Rabia ibn Abi Abd ar-Rahman
from al-Qasim ibn Muhammad that A'isha umm al-muminin, said, "There
were three sunnas established in connection with Barira:
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ رَبِيعَةَ بْنِ أَبِي عَبْدِ الرَّحْمَنِ، عَنِ الْقَاسِمِ بْنِ مُحَمَّدٍ، عَنْ عَائِشَةَ أُمِّ الْمُؤْمِنِينَ، أَنَّهَا قَالَتْ كَانَ فِي بَرِيرَةَ ثَلاَثُ سُنَنٍ فَكَانَتْ إِحْدَى السُّنَنِ الثَّلاَثِ أَنَّهَا أُعْتِقَتْ فَخُيِّرَتْ فِي زَوْجِهَا وَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " الْوَلاَءُ لِمَنْ أَعْتَقَ " . وَدَخَلَ رَسُولُ اللَّهِ صلى الله عليه وسلم وَالْبُرْمَةُ تَفُورُ بِلَحْمٍ فَقُرِّبَ إِلَيْهِ خُبْزٌ وَأُدْمٌ مِنْ أُدْمِ الْبَيْتِ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " أَلَمْ أَرَ بُرْمَةً فِيهَا لَحْمٌ " . فَقَالُوا بَلَى يَا رَسُولَ اللَّهِ وَلَكِنْ ذَلِكَ لَحْمٌ تُصُدِّقَ بِهِ عَلَى بَرِيرَةَ وَأَنْتَ لاَ تَأْكُلُ الصَّدَقَةَ . فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " هُوَ عَلَيْهَا صَدَقَةٌ وَهُوَ لَنَا هَدِيَّةٌ " .
firstly was
that when she was set free she was given her choice about her husband,
secondly, the Messenger of Allah, may Allah bless him and grant him
peace, said about her, 'The right of inheritance belongs to the person
who has set a person free,' thirdly, the Messenger of Allah, may Allah
bless him and grant him peace, came in and there was a pot with meat
on the boil. Bread and condiments were brought to him from the stock
of the house. The Messenger of Allah, may Allah bless him and grant
him peace, said, 'Didn't I see a pot with meat in it?' They said,
'Yes, Messenger of Allah. That is meat which was given as sadaqa for
Barira, and you do not eat sadaqa.' The Messenger of Allah, may Allah
bless him and grant him peace, said, 'It is sadaqa for her, and it is
a gift for us.' "
ahya related to me from Malik from Nafi that Abdullah ibn Umar
said that a female slave who was the wife of a slave and then was set
free, had the right of choice as long as he did not have intercourse
with her.
Malik said, "If her husband has intercourse with
her and she claims that she did not know, she still has the right of
choice. If she is suspect and one does not believe her claim of
ignorance, then she has no choice after he has had intercourse with
her."
Yahya related to me from Malik from Ibn Shihab from Urwa ibn az-
Zubayr that a mawla of the tribe of Banu Adi called Zabra told him
that she had been the wife of a slave when she was a slave-girl. Then
she was set free and she sent a message to Hafsa, the wife of the
Prophet, may Allah bless him and grant him peace. Hafsa called her and
said, "I will tell you something., but I would prefer that you did not
act upon it. You have authority over yourself as long as your husband
does not have intercourse with you. If he has intercourse with you,
you have no authority at all." Therefore she pronounced her divorce
from him three times.
Yahya related to me from Malik that he had heard that Said ibn
al-Musayyab said that if a man married a woman, and he was insane or
had a physical defect, she had the right of choice. If she wished she
could stay, and if she wished she could separate from him.
Yahya related to me that Malik heard Ibn Shihab say, "When a man
gives his wife the right of choice, and she chooses him, that is not
divorce."
Malik added, "That is the best of what I have
heard."
Malik said that if a woman who had been given the
right of choice by her husband chose herself, she was divorced trebly.
If her husband said, "But I only gave her the right of choice in one,"
he had none of that. That was the best of what he had heard.
Malik said, "If the man gives his wife the right of choice and she
says, 'I accept one', and he says, 'I did not mean that, I have given
the right of choice in all three together,' then if she only accepts
one, she remains with him in her marriage, and that is not separation
if Allah, the Exalted wills."
USC-MSA web (English) reference : Book 29, Hadith 30
Hadith 511860
Chapter 29: Divorce - كتاب الطلاق
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ يَحْيَى بْنِ سَعِيدٍ، عَنْ عَمْرَةَ بِنْتِ عَبْدِ الرَّحْمَنِ، أَنَّهَا أَخْبَرَتْهُ عَنْ حَبِيبَةَ بِنْتِ سَهْلٍ الأَنْصَارِيِّ، أَنَّهَا كَانَتْ تَحْتَ ثَابِتِ بْنِ قَيْسِ بْنِ شَمَّاسٍ وَأَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم خَرَجَ إِلَى الصُّبْحِ فَوَجَدَ حَبِيبَةَ بِنْتَ سَهْلٍ عِنْدَ بَابِهِ فِي الْغَلَسِ فَقَالَ لَهَا رَسُولُ اللَّهِ صلى الله عليه وسلم " مَنْ هَذِهِ " . فَقَالَتْ أَنَا حَبِيبَةُ بِنْتُ سَهْلٍ يَا رَسُولَ اللَّهِ . قَالَ " مَا شَأْنُكِ " . قَالَتْ لاَ أَنَا وَلاَ ثَابِتُ بْنُ قَيْسٍ . لِزَوْجِهَا فَلَمَّا جَاءَ زَوْجُهَا ثَابِتُ بْنُ قَيْسٍ قَالَ لَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم " هَذِهِ حَبِيبَةُ بِنْتُ سَهْلٍ قَدْ ذَكَرَتْ مَا شَاءَ اللَّهُ أَنْ تَذْكُرَ " . فَقَالَتْ حَبِيبَةُ يَا رَسُولَ اللَّهِ كُلُّ مَا أَعْطَانِي عِنْدِي . فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم لِثَابِتِ بْنِ قَيْسٍ " خُذْ مِنْهَا " . فَأَخَذَ مِنْهَا وَجَلَسَتْ فِي بَيْتِ أَهْلِهَا .
Yahya related. to me from Malik from Yahya ibn Said that Amra
bint Abd ar-Rahman told him from Habiba bint Sahl al-Ansari that she
had been the wife of Thabit ibn Qays ibn Shammas. The Messenger of
Allah, may Allah bless him and grant him peace, went out for the dawn
prayer, and found Habiba bint Sahl at his door in the darkness. The
Messenger of Allah, may Allah bless him and grant him peace, said to
her, "Who is this?" She said, "I am Habiba bint Sahl, Messenger of
Allah." He said, "What do you want?" She said, "That Thabit ibn Qays
and I separate." When her husband, Thabit ibn Qays came, the Messenger
of Allah, may Allah bless him and grant him peace, said to him, "This
is Habiba bint Sahl. She mentioned what Allah willed that she
mention." Habiba said, "Messenger of Allah, all that he has given me
is with me!" The Messenger of Allah, may Allah bless him and grant him
peace, said to Thabit ibn Qays, "Take it from her," and he took it
from her, and she stayed in the house of her family.
Yahya related to me from Malik from Nafi from a mawla of Safiyya
bint Abi Ubayd that she gave all that she possessed to her husband as
compensation for her divorce from him, and Abdullah ibn Umar did not
disapprove of that.
Malik said that divorce was ratified for
a woman who ransomed herself from her husband, when it was known that
her husband was detrimental to her and was oppressive for her, and it
was known that he wronged her, and he had to return her property to
her. Malik added, "This is what I have heard, and it is what is done
among us."
Malik said, "There is no harm if a woman ransoms
herself from her husband for more than he gave her."
Yahya related to me from Malik from Nafi that Rubayyi bint
Muawwidh ibn Afra came with her paternal uncle to Abdullah ibn Umar
and told him that she had divorced her husband for a compensation in
the time of Uthman ibn Affan, and he heard about it and did not
disapprove. Abdullah ibn Umar said, "Her idda is the idda of a
divorced woman."
Yahya related to me from Malik that he had
heard that Said ibn al-Musayyab and Sulayman ibn Yasar and Ibn Shihab
all said that a woman who divorced for a compensation had the same
idda as a divorced woman - three periods.
Malik said that a
woman who ransomed herself could not return to her husband except by a
new marriage. If someone married her and then separated from her
before he had intercourse with her, there was no idda against her from
the recent marriage, and she rested on her first idda.
Malik
said, "That is the best that I have heard on the matter."
Malik said, "If, when a woman offers to compensate her husband, he
divorces her straightaway, then that compensation is confirmed for
him. If he makes no response, and then at a later date, does divorce
her, he is not entitled to that compensation."
USC-MSA web (English) reference : Book 29, Hadith 33
Hadith 511900
Chapter 29: Divorce - كتاب الطلاق
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنِ ابْنِ شِهَابٍ، أَنَّ سَهْلَ بْنَ سَعْدٍ السَّاعِدِيَّ، أَخْبَرَهُ أَنَّ عُوَيْمِرًا الْعَجْلاَنِيَّ جَاءَ إِلَى عَاصِمِ بْنِ عَدِيٍّ الأَنْصَارِيِّ فَقَالَ لَهُ يَا عَاصِمُ أَرَأَيْتَ رَجُلاً وَجَدَ مَعَ امْرَأَتِهِ رَجُلاً أَيَقْتُلُهُ فَتَقْتُلُونَهُ أَمْ كَيْفَ يَفْعَلُ سَلْ لِي يَا عَاصِمُ عَنْ ذَلِكَ رَسُولَ اللَّهِ صلى الله عليه وسلم . فَسَأَلَ عَاصِمٌ رَسُولَ اللَّهِ صلى الله عليه وسلم عَنْ ذَلِكَ فَكَرِهَ رَسُولُ اللَّهِ صلى الله عليه وسلم الْمَسَائِلَ وَعَابَهَا حَتَّى كَبُرَ عَلَى عَاصِمٍ مَا سَمِعَ مِنْ رَسُولِ اللَّهِ صلى الله عليه وسلم فَلَمَّا رَجَعَ عَاصِمٌ إِلَى أَهْلِهِ جَاءَهُ عُوَيْمِرٌ فَقَالَ يَا عَاصِمُ مَاذَا قَالَ لَكَ رَسُولُ اللَّهِ صلى الله عليه وسلم فَقَالَ عَاصِمٌ لِعُوَيْمِرٍ لَمْ تَأْتِنِي بِخَيْرٍ قَدْ كَرِهَ رَسُولُ اللَّهِ صلى الله عليه وسلم الْمَسْأَلَةَ الَّتِي سَأَلْتُهُ عَنْهَا . فَقَالَ عُوَيْمِرٌ وَاللَّهِ لاَ أَنْتَهِي حَتَّى أَسْأَلَهُ عَنْهَا . فَأَقْبَلَ عُوَيْمِرٌ حَتَّى أَتَى رَسُولَ اللَّهِ صلى الله عليه وسلم وَسْطَ النَّاسِ فَقَالَ يَا رَسُولَ اللَّهِ أَرَأَيْتَ رَجُلاً وَجَدَ مَعَ امْرَأَتِهِ رَجُلاً أَيَقْتُلُهُ فَتَقْتُلُونَهُ أَمْ كَيْفَ يَفْعَلُ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" قَدْ أُنْزِلَ فِيكَ وَفِي صَاحِبَتِكَ فَاذْهَبْ فَأْتِ بِهَا " . قَالَ سَهْلٌ فَتَلاَعَنَا وَأَنَا مَعَ النَّاسِ عِنْدَ رَسُولِ اللَّهِ صلى الله عليه وسلم فَلَمَّا فَرَغَا مِنْ تَلاَعُنِهِمَا قَالَ عُوَيْمِرٌ كَذَبْتُ عَلَيْهَا يَا رَسُولَ اللَّهِ إِنْ أَمْسَكْتُهَا . فَطَلَّقَهَا ثَلاَثًا قَبْلَ أَنْ يَأْمُرَهُ رَسُولُ اللَّهِ . وَقَالَ مَالِكٌ قَالَ ابْنُ شِهَابٍ فَكَانَتْ تِلْكَ بَعْدُ سُنَّةَ الْمُتَلاَعِنَيْنِ .
Yahya related to me from Malik from Ibn Shihab that Sahl ibn Sad
as-Saidi told him that Uwaymir al-Ajlani came to Asim ibn Adi al-
Ansari and said to him, "Asim! What do you think a man who finds
another man with his wife should do? Should he kill him and then be
killed himself, or what should .he do? Asim! ask the Messenger of
Allah, may Allah bless him and grant him peace, about that for me."
Asim asked the Messenger of Allah, may Allah bless him and grant him
peace, about it. The Messenger of Allah, may Allah bless him and grant
him peace, was revolted by the questions and reproved them until what
he heard from the Messenger of Allah, may Allah bless him and grant
him peace. was intolerable for Asim. When Asim returned to his people,
Uwaymir came to him and said, " Asim! what did the Messenger of Allah,
may Allah bless him and grant him peace, say to you?" Asim said to
Uwaymir, "You didn't bring me any good. The Messenger of Allah, may
Allah bless him and grant him peace, was revolted by the question
which I asked him." Uwaymir said, "By Allah! I will not stop until I
ask him about it!" Uwaymir stood up and went to the Messenger of
Allah, may Allah bless him and grant him peace, in the middle of the
people and said, "Messenger of Allah! What do you think a man who
finds another man with his wife should do? Should he kill him and then
be killed himself, or what should he do?" The Messenger of Allah, may
Allah bless him and grant him peace, said, "Something has been sent
down about you and your wife, so go and bring her."
Sahl
continued, "They mutually cursed one another in the presence of the
Messenger, may Allah bless him and grant him peace, and I was present
with the people. When they finished cursing each other, Uwaymir said,
'I shall have lied about her, Messenger of Allah, if I keep her,' and
pronounced the divorce three times before the Messenger of Allah, may
Allah bless him and grant him peace, ordered him to do it."
Malik said that Ibn Shihab said, "That was how the sunna of a couple
mutually cursing each other was established (lian)."
USC-MSA web (English) reference : Book 29, Hadith 34
Hadith 511910
Chapter 29: Divorce - كتاب الطلاق
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّ رَجُلاً، لاَعَنَ امْرَأَتَهُ فِي زَمَانِ رَسُولِ اللَّهِ صلى الله عليه وسلم وَانْتَفَلَ مِنْ وَلَدِهَا فَفَرَّقَ رَسُولُ اللَّهِ صلى الله عليه وسلم بَيْنَهُمَا وَأَلْحَقَ الْوَلَدَ بِالْمَرْأَةِ .
Yahya related to me from Malik from Nafic from Abdullah ibn Umar
that a man cursed his wife in the time of the Messenger of Allah, may
Allah bless him and grant him peace, and disowned her child. The
Messenger of Allah, may Allah bless him and grant him peace, separated
them and gave the child to the woman.
Malik said, "Allah the
Blessed, the Exalted, said, 'The testimony of men who accuse their
wives but do not have any witnesses except themselves is to testify by
Allah four times that he is being truthful, and a fifth time, that the
curse of Allah will be upon him, if he should be a liar. She will
avoid punishment if she testifies by Allah four times that he is a
liar, and a fifth time, that the wrath of Allah shall be upon her, if
he should be telling the truth. ' "(Sura 24 ayat 6).
Malik
said, "The sunna with us is that those who curse each other are never
to be remarried. If the man calls himself a liar, (i.e. takes back his
accusation), he is flogged with the hadd-punishment, and the child is
given to him, and his wife can never return to him. There is no doubt
or dispute about this sunna among us. "
Malik said, "If a man
separates from his wife by an irrevocable divorce by which he cannot
return to her, and then he denies the paternity of the child she is
carrying, whilst she claims that he is the father, and it is possible
by the timing, that he be so, he must curse her, and the child is not
recognised as his."
Malik said, "That is what is done among
us, and it is what I have heard from the people of knowledge."
Malik said that a man who accused his wife after he had divorced
her trebly while she was pregnant, and he had at first accepted being
the father but then claimed that he had seen her committing adultery
before he separated from her, was flogged with the hadd-punishment,
and did not curse her.
If he denied the paternity of her
child after he had divorced her trebly, and he had not previously
accepted it, then he cursed her.
Malik said, "This is what I
have heard."
Malik said, "The slave is in the same position
as the free man as regards making accusations and invoking mutual
curses (lian). He acts in the lian as the free man acts although there
is no hadd applied for slandering a female-slave."
Malik
said, "The muslim slave-girl and the christian and jewish free woman
also do lian when a free muslim marries one of them and has
intercourse with her. That is because Allah - may He be blessed and
Exalted, said in His Book, 'As for those who accuse their wives,' and
they are their wives. This is what is done among us.
Malik
said that a man who did the lian with his wife, and then stopped and
called himself a liar after one or two oaths and he had not cursed
himself in the fifth one, had to be flogged with the hadd-punishment,
but they did not have to be separated.
Malik said that if a
man divorced his wife and then after three months the woman said, "I
am pregnant," and he denied paternity, then he had to do lian.
Malik said that the husband of a female slave who pronounced the
lian on her and then bought her, was not to have intercourse with her,
even if he owned her. The sunna which had been handed down about a
couple who mutually cursed each other in the lian was that they were
never to return to each other.
Malik said that when a man
pronounced the lian against his wife before he had consummated the
marriage, she only had half of the bride price.
Yahya related to me from Malik that he had heard that `Urwa ibn az-Zubayr said that if the child of the woman against whom li`an had been
pronounced or the child of fornication, died, his mother inherited
from him her right in the Book of Allah the Exalted, and his maternal
half-brothers had their rights. The rest was inherited by the owners
of his mother's wala' if she was a freed slave. If she was an ordinary
free woman, she inherited her right, his maternal brothers inherited
their rights, and the rest went to the Muslims.
Malik said,"I
heard the same as that from Sulayman ibn Yasar, and it is what I saw
the people of knowledge in our city doing."
Yahya related to me from Malik from Ibn Shihab from Muhammad ibn
Abd ar-Rahman ibn Thawban that Muhammad ibn Iyas ibn al-Bukayr said,
"A man divorced his wife three times before he had consummated the
marriage, and then it seemed good to him to marry her. Therefore, he
wanted an opinion, and I went with him to ask Abdullah ibn Abbas and
Abu Hurayra on his behalf about it, and they said, 'We do not think
that you should marry her until she has married another husband.' He
protested that his divorcing her had been only once. Ibn Abbas said,
'You threw away what you had of blessing.' "
Yahya related to me from Malik from Yahya ibn Said from Bukayr
ibn Abdullah al-Ashajj from an-Numan ibn Abi Ayyash al Ansari from Ata
ibn Yasar that a man came and asked Abdullah ibn Amr ibn al-As about a
man who divorced his wife three times before he had had intercourse
with her Ata said, "The divorce of the virgin is one. Abdullah ibn Amr
ibn al-As said to me, 'You say one pronouncement separates her and
three makes her haram until she has married another husband.' "
Yahya related to me from Malik from Yahya ibn Said that Bukayr
ibn Abdullah al-Ashajj informed him that Muawiya ibn Abi Ayyash al-
Ansari told him that he was sitting with Abdullah ibn az-Zubayr and
Asim ibn Umar ibn al-Khattab when Muhammad ibn Iyas ibn al-Bukayr came
up to them and said, "A man from the desert has divorced his wife
three times before consummating the marriage, what do you think?"
Abdullah ibn az-Zubayr said "This is something about which we have no
statement. Go to Abdullah ibn Abbas and Abu Hurayra. I left them with
A'isha. Ask them and then come and tell us." He went and asked them.
Ibn Abbas said to Abu Hurayra, "Give an opinion, Abu Hurayra! A
difficult one has come to you." Abu Hurayra said, "One pronouncement
separates her and three makes her haram until she has married another
husband." Ibn Abbas said the like of that.
Malik said, "That
is what is done among us, and when a man marries a woman who has been
married before, and he has not had intercourse with her, she is
treated as a virgin - one pronouncement separates her and three make
her haram until she has married another husband."
Yahya related to me from Malik from Ibn Shihab that Talha ibn
Abdullah ibn Awf said, and he knew that better than them, from Abu
Salama ibn Abd ar-Rahman ibn Awf that Abd ar-Rahman ibn Awf divorced
his wife irrevocably while he was terminally ill, and Uthman ibn Affan
made her an heir after the end of her idda.
Yahya related to me from Malik from Abdullah ibn al-Fadl from al-
Araj that Uthman ibn Affan made the wives of ibn Mukmil inherit from
him, and he had divorced them while he was terminally ill.
Yahya related to me from Malik that he heard Rabia ibn Abi Abd
ar-Rahman say, ''I heard that the wife of Abd ar-Rahman ibn Awf asked
him to divorce her. He said, 'When you have menstruated and are pure,
then come to me.' She did not menstruate until Abd ar-Rahman ibn Awf
was ill. When she was purified, she told him and he divorced her
irrevocably or made a pronouncement of divorce which was all that he
had left over her Abd arRahman ibn Awf was terminally ill at the time,
so Uthman ibn Affan made her one of the heirs after the end of her
idda."
Yahya related to me from Malik from Yahya ibn Said that Muhammad
ibn Yahya ibn Habban said, "My grandfather Habban had two wives, one
from the Hashimites and one from the Ansars. He divorced the Ansariyya
while she was nursing, and a year passed and he died and she had still
not yet menstruated. She said, 'I inherit from him. I have not
menstruated yet.' The wives quarrelled and went to Uthman ibn Affan.
He decided that she did inherit, and the Hashimiyya rebuked Uthman. He
said, 'This is the practice of the son of your paternal uncle. He
pointed this out to us.' He meant Ali ibn Abi Talib."
Yahya related to me from Malik that he had heard Ibn Shihab say,
"When a man who is terminally ill divorces his wife three times, she
inherits from him."
Malik said, "If he divorces her while he
is terminally ill before he has consummated the marriage, she has half
of the bride-price and inherits, and she does not have to do an idda.
If he consummated the marriage, she has all the dowry and inherits.
The virgin and the previously married woman are the same in this
situation according to us."
Yahya related to me from Malik from
Nafi that Abdullah ibn Umar said, "Every divorced woman has
compensation except for the one who is divorced and is allocated a
bride-price and has not been touched. She has half of what was
allocated to her."
Yahya related to me from Malik that Ibn Shihab said, "Every
divorced woman has compensation."
Malik said, "I have also
heard the same as that from al-Qasim ibn Muhammad."
Malik
said, "There is no fixed limit among us as to how small or large the
compensation is."
USC-MSA web (English) reference : Book 29, Hadith 46
Hadith 512060
Chapter 29: Divorce - كتاب الطلاق
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ أَبِي الزِّنَادِ، عَنْ سُلَيْمَانَ بْنِ يَسَارٍ، أَنَّ نُفَيْعًا، مُكَاتَبًا كَانَ لأُمِّ سَلَمَةَ زَوْجِ النَّبِيِّ صلى الله عليه وسلم أَوْ عَبْدًا لَهَا كَانَتْ تَحْتَهُ امْرَأَةٌ حُرَّةٌ فَطَلَّقَهَا اثْنَتَيْنِ ثُمَّ أَرَادَ أَنْ يُرَاجِعَهَا فَأَمَرَهُ أَزْوَاجُ النَّبِيِّ صلى الله عليه وسلم أَنْ يَأْتِيَ عُثْمَانَ بْنَ عَفَّانَ فَيَسْأَلَهُ عَنْ ذَلِكَ فَلَقِيَهُ عِنْدَ الدَّرَجِ آخِذًا بِيَدِ زَيْدِ بْنِ ثَابِتٍ فَسَأَلَهُمَا فَابْتَدَرَاهُ جَمِيعًا فَقَالاَ حَرُمَتْ عَلَيْكَ حَرُمَتْ عَلَيْكَ .
Yahya related to me from Malik from Abu'z-Zinad from Sulayman ibn
Yasar that Nufay, a mukatab of Umm Salama the wife of the Prophet, may
Allah bless him and grant him peace, or her slave, had a free woman as
a wife. He divorced her twice, and then he wanted to return to her.
The wives of the Prophet, may Allah bless him and grant him peace,
ordered him to go to Uthman ibn Affan to ask him about it. He found
him at ad-Daraj with Zayd ibn Thabit. He asked them, and they both
anticipated him and said, "She is haram for you. She is haram for
you."
USC-MSA web (English) reference : Book 29, Hadith 47
Hadith 512070
Chapter 29: Divorce - كتاب الطلاق
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنِ ابْنِ شِهَابٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، أَنَّ نُفَيْعًا، مُكَاتَبًا كَانَ لأُمِّ سَلَمَةَ زَوْجِ النَّبِيِّ صلى الله عليه وسلم طَلَّقَ امْرَأَةً حُرَّةً تَطْلِيقَتَيْنِ فَاسْتَفْتَى عُثْمَانَ بْنَ عَفَّانَ فَقَالَ حَرُمَتْ عَلَيْكَ .
Yahya related to me from Malik from Ibn Shihab from Said ibn al-
Musayyab that Nufay, a mukatab of Umm Salama, the wife of the Prophet,
may Allah bless him and grant him peace, divorced his free wife twice,
so he asked Uthman ibn Affan for an opinion, and he said, "She is
haram for you."
Yahya related to me from Malik from Abdu Rabbih ibn Said from
Muhammad ibn Ibrahim ibn al-Harith at-Taymi that Nufay, a mukatab of
Umm Salama, the wife of the Prophet, may Allah bless him and grant him
peace, asked Zayd ibn Thabit for an opinion. He said, "I have divorced
my free wife twice." Zayd ibn Thabit said, "She is haram for you."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said, "When the slave divorces his wife twice, she is haram for him
until she has married another husband, whether she is free or a slave.
The idda of a free woman is three menstrual periods, and the idda of a
slave-girl is two periods.
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said, "If a man gives his slave permission to marry, the divorce is in
the hand of the slave, and nobody else has any power over his divorce.
Nothing is held against a man who takes the slave-girl of his male
slave or the slave-girl of his female-slave."
Malik said, "Neither a free man nor a slave who divorces a slave-
girl nor a slave who divorces a free woman, in an irrevocable divorce,
is obliged to pay maintenance even if she is pregnant, and he cannot
return to her."
Malik said, "A free man is not obliged to pay
for the suckling of his son when he is a slave of other people, nor is
a slave obliged to spend his money for what his master owns except
with the permission of his master."
Yahya related to me from Malik from Yahya ibn Said from Said ibn
al-Musayyab that Umar ibn al-Khattab said, "The woman who loses her
husband and does not know where he is, waits for four years, then she
does idda for four months, and then she is free to marry."
Malik said, "If she marries after her idda is over, regardless of
whether the new husband has consummated the marriage or not, her first
husband has no means of access to her."
Malik said, "That is
what is done among us and if her husband reaches her before she has
remarried, he is more entitled to her."
Malik said that he
had seen people disapproving of someone who said that one of the
people (of knowledge) attributed to Umar ibn al-Khattab that he said,
"Her first husband chooses when he comes either her bride-price or his
wife."
Malik said, "I have heard that Umar ibn al-Khattab,
speaking about a woman whose husband divorced her while he was absent
from her, and then he took her back and the news of his taking her
back had not reached her, while the news of his divorcing her had, and
so she had married again, said, 'Her first husband who divorced her
has no means of access to her whether or not the new husband has
consummated the marriage.' "
Malik said, "This is what I like
the best of what I heard about the missing man."
USC-MSA web (English) reference : Book 29, Hadith 52
Hadith 512130
Chapter 29: Divorce - كتاب الطلاق
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ نَافِعٍ، أَنَّ عَبْدَ اللَّهِ بْنَ عُمَرَ، طَلَّقَ امْرَأَتَهُ وَهِيَ حَائِضٌ عَلَى عَهْدِ رَسُولِ اللَّهِ صلى الله عليه وسلم فَسَأَلَ عُمَرُ بْنُ الْخَطَّابِ رَسُولَ اللَّهِ صلى الله عليه وسلم عَنْ ذَلِكَ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" مُرْهُ فَلْيُرَاجِعْهَا ثُمَّ يُمْسِكْهَا حَتَّى تَطْهُرَ ثُمَّ تَحِيضَ ثُمَّ تَطْهُرَ ثُمَّ إِنْ شَاءَ أَمْسَكَ بَعْدُ وَإِنْ شَاءَ طَلَّقَ قَبْلَ أَنْ يَمَسَّ فَتِلْكَ الْعِدَّةُ الَّتِي أَمَرَ اللَّهُ أَنْ يُطَلَّقَ لَهَا النِّسَاءُ " .
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
divorced his wife while she was menstruating in the time of the
Messenger of Allah, may Allah bless him and grant him peace, Umar ibn
al-Khattab asked the Messenger of Allah, may Allah bless him and grant
him peace, about it. The Messenger of Allah, may Allah bless him and
grant him peace, said, "Go and tell him to take her back and keep her
until she is purified and then has a period and then is purified. Then
if he wishes, he an keep her, and if he wishes he should divorce her
before he has intercourse with her. That is the idda which Allah has
commanded for women who are divorced."
Yahya related to me from Malik from Ibn Shihab from Urwa ibn az-
Zubayr from A'isha, umm al-muminin, that she took Hafsa ibn Abd ar-
Rahman ibn Abi Bakr as-Siddiq into her house when she had entered the
third period of her idda. Ibn Shihab said, "That was mentioned to Amra
bint Abd ar-Rahman, and she said that Urwa had spoken the truth and
people had argued with A'isha about it. They said that Allah, the
Blessed, the Exalted, said in His Book, 'Three quru.' A'isha said,
'You spoke the truth. Do you know what quru are? Quru are times of
becoming pure after menstruation .' "
Yahya related to me from Malik that Ibn Shihab said that he heard
Abu Bakr ibn Abd ar-Rahman say, "I have never seen any of our fuqaha
who did not say that this was what the statement of A'isha meant."
Yahya related to me from Malik from Nafi and Zayd ibn Aslam from
Sulayman ibn Yasar that al-Ahwas died in Syria when his wife had begun
her third menstrual period after he had divorced her. Muawiya ibn Abi
Sufyan wrote and asked Zayd ibn Thabit about that. Zayd wrote to him,
"When she began her third period, she was free from him and he was
free from her, and he does not inherit from her nor she from him."
Yahya related to me from Malik that he had heard that Abu Bakr
ibn Abd ar-Rahman and Sulayman ibn Yasar and Ibn Shihab used to say,
"When the divorced woman enters the beginning of her third period, she
is clearly separated from her husband and there is no inheritance
between them and he has no access to her."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said, "When a man divorces his wife and she begins her third period,
she is free from him and he is free from her."
Malik said,
"This is how things are done among us."
Yahya related to me from Malik from al-Fudayl ibn Abi Abdullah,
the mawla of al-Mahri that al-Qasim ibn Muhammad and Salim ibn
Abdullah said, "When a woman is divorced and begins her third period,
she is clearly separated from him and is free to marry again."
Yahya related to me from Malik that he had heard that Said ibn
al-Musayyab and Ibn Shihab and Sulayman ibn Yasar all said, "The idda
of the woman with a khul divorce is three periods."
Yahya related to me from Malik that he heard Ibn Shihab say, "The
idda of the divorced woman is reckoned by the menstrual cycles even if
she is estranged ." (The reason the idda is normally reckoned by the
menstrual cycle is to see whether the woman is pregnant or not.)
Yahya related to me from Malik from Yahya ibn Said from a man of
the Ansar that his wife asked him for a divorce, and he said to her,
"When you have had your period, then tell me." When she had her
period, she told him. He said, "When you are purified then tell me."
When she was purified, she told him and he divorced her.
Malik said, "This is the best of what I have heard about it."
Yahya related to me from Malik thal Yahya ibn Said heard al-Qasim
ibn Muhammad and Sulayman ibn Yasar both mention that Yahya ibn Said
ibn al-As divorced the daughter of Abd ar-Rahman ibn al-Hakam
irrevocably, so Abd ar-Rahman ibn al-Hakam took her away A'isha umm
al-muminin sent to Marwan ibn al-Hakam who was the Amir of al-Madina
at that time. She said, "Fear Allah and make him return the woman to
her house." Marwan said in what Sulayman related, ''Abd ar-Rahman has
the upper hand over me." Marwan said in what al-Qasim related, "Hasn't
the affair of Fatima bint Qays reached you?" A'isha said, "You are
forced to mention the story of Fatima " Marwan said, "If you know that
evil, whatever evil there was between those two is enough for you."
(See hadith 67.)
Yahya related to me from Malik from Nafi that the daughter of
Said ibn Zayd ibn Amr ibn Nufayl was the wife of Abdullah ibn Umar ibn
Uthman ibn Affan, and he divorced her irrevocably and she moved out.
Abdullah ibn Umar rebuked her for that.
USC-MSA web (English) reference : Book 29, Hadith 64
Hadith 512250
Chapter 29: Divorce - كتاب الطلاق
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ نَافِعٍ، أَنَّ عَبْدَ اللَّهِ بْنَ عُمَرَ، طَلَّقَ امْرَأَةً لَهُ فِي مَسْكَنِ حَفْصَةَ زَوْجِ النَّبِيِّ صلى الله عليه وسلم وَكَانَ طَرِيقَهُ إِلَى الْمَسْجِدِ فَكَانَ يَسْلُكُ الطَّرِيقَ الأُخْرَى مِنْ أَدْبَارِ الْبُيُوتِ كَرَاهِيَةَ أَنْ يَسْتَأْذِنَ عَلَيْهَا حَتَّى رَاجَعَهَا .
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
divorced one of his wives in the house of Hafsa, the wife of the
Prophet, may Allah bless him and grant him peace, while he was on the
way to the mosque. He went another route from behind the houses being
averse to ask permission to enter until he returned to her.
Yahya related to me from Malik from Yahya ibn Said that Said ibn
al-Musayyab was asked who was obliged to pay the rent for a woman
whose husband divorced her while she was in a leased house. Said ibn
al-Musayyab said, "Her husband is obliged to pay it." Someone asked,
"what if her husband does not have it?" He said, "Then she must pay
it." Someone asked, "And if she does not have it?" He said, "Then the
Amir must pay it."
Yahya related to me from Malik from Abdullah ibn Yazid, the mawla
of al-Aswad ibn Sufyan from Abu Salama ibn Abd ar-Rahman ibn Awf from
Fatima bint Qays that Abu Amr ibn Hafs divorced her absolutely while
he was away in Syria. His agent sent her some barley and she was
displeased with it, saying, "By Allah, I don't expect anything from
you." She went to the Messenger of Allah, may Allah bless him and
grant him peace, and mentioned it to him. He said, "You have no
maintenance." He then ordered her to spend her idda in the house of
Umm Sharik. Then he said, "This is a woman whom my companions visit.
Spend the idda in the house of Ibn Umm Maktum. He is a blind man and
you can undress at his home. When you are free to remarry, tell me."
She continued, "When I was free to remarry, I mentioned to
him that Muawiya ibn Abi Sufyan and Abu Jahm ibn Hisham had asked for
me in marriage. The Messenger of Allah, may Allah bless him and grant
him peace, said, 'As for Abu Jahm, he never puts down his stick from
his shoulder (i.e. he is always travelling), and as for Muawiya he is
a poor man with no property. Marry Usama ibn Zayd.' I objected to him
and he said, 'Marry Usama ibn Zayd,' so I married him, and Allah put
good in it and I was content with him."
Yahya related to me from Malik that he heard Ibn Shihab say, "The
woman who is absolutely divorced does not leave her house until she is
free to remarry. She has no maintenance unless she is pregnant. In
that circumstance the husband spends on her until she gives birth."
Malik said, "This is what is done among us."
Yahya related to me from Malik from Yahya ibn Said and from Yazid
ibn Abdullah ibn Qusayt al-Laythi that Said ibn al-Musayyab said,
''Umar ibn al-Khattab said, 'If a woman is divorced and has one or two
periods and then stops menstruating, she must wait nine months. If it
is clear that she is pregnant, that is that. If not, she must do an
idda of three months after the nine, and then she is free to marry.' "
Yahya related to me from Malik from Ibn Shihab that Said ibn al-
Musayyab said, "The idda of the woman who bleeds constantly is a
year."
Malik said, "What is done among us about a divorced
woman whose periods stop when her husband divorces her is that she
waits nine months. If she has not had a period in them, she has an
idda of three months. If she has a period before the end of the three
months, she accepts the period. If another nine months pass without
her having a period, she does an idda of three months. If she has a
second period before the end of those three months, she accepts the
period. If nine months then pass without a period, she does an idda of
three months. If she has a third period, the idda of the period is
complete. If she does not have a period, she waits three months, and
then she is free to marry. Her husband can return to her before she
becomes free to marry unless he made her divorce irrevocable."
Malik said, "The sunna with us is that when a man divorces his
wife and has the option to return to her, and she does part of her
idda and then he returns to her and then parts from her before he has
had intercourse with her, she does not add to what has passed of her
idda. Her husband has wronged himself and erred if he returned to her
and had no need of her."
Malik said, "What is done among us
is that if a woman becomes a muslim while her husband is a kafir and
then he becomes muslim, he is entitled to her as long as she is in her
idda. If her idda is finished, he has no access to her. If he
remarries her after the end of her idda, however, that is not counted
as divorce. Islam removed her from him without divorce."
Yahya related to me from Malik that he had heard that Ali ibn Abi
Talib said about the two arbiters about whom Allah, the Exalted,
said,"If you fear a breach between the two, appoint an arbiter from
his people, and an arbiter from her people. If they desire to set
things aright, Allah will make peace between them, surely Allah is
Knowing, Aware," (Sura 4 ayat 35), that the separation and the joining
were overseen by the two of them.
Malik said, "That is the
best of what I have heard from the people of knowledge. Whatever the
two arbiters say concerning separation or joining is taken into
consideration "
Yahya related to me from Malik that he had heard that Umar ibn
al-Khattab, Abdullah ibn Umar, Abdullah ibn Masud, Salim ibn Abdullah,
al-Qasim ibn Muhammad, Ibn Shihab,and Sulayman ibn Yasar all said, "If
a man has vowed to divorce his wife before marrying her and then he
breaks his vow, divorce is obligatory for him when he marries her."
USC-MSA web (English) reference : Book 29, Hadith 73
Hadith 512340
Chapter 29: Divorce - كتاب الطلاق
Yahya related to me from Malik that he had heard that
Abdullah ibn Masud said that there was nothing binding on someone who
said, "Every woman I marry is divorced," if he did not name a specific
tribe or woman.
Malik said, "That is the best of what I have
heard."
Malik said about a man saying to his wife, "You are
divorced, and every woman I marry is divorced," or that all his
property would be sadaqa if he did not do such-and-such, and he broke
his oath:
"As for his wives, it is divorce as he said, and as for his
statement, 'Every woman I marry is divorced', if he did not name a
specific woman, tribe, or land, or such, it is not binding on him and
he can marry as he wishes. As for his property, he gives a third of it
away as sadaqa."
Yahya related to me from Malik from Ibn Shihab that Said ibn al-
Musayyab said, "If someone marries a woman and cannot have intercourse
with her, there is a deadline of a year set for him to have
intercourse with her. If he does not, they are separated."
Yahya related to me from Malik that he had asked Ibn Shihab about
whether the deadline was set from the day he had married her, or from
the day she raised the question before the Sultan. He said. 'It is
from the day she presents it before the Sultan.'
Malik said,
"As for someone who has intercourse with his wife and then is
prevented from intercourse with her, I have not heard that there is a
deadline set for him or that they are separated."
USC-MSA web (English) reference : Book 29, Hadith 754
Hadith 512370
Chapter 29: Divorce - كتاب الطلاق
وَحَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنِ ابْنِ شِهَابٍ، أَنَّهُ قَالَ بَلَغَنِي أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ لِرَجُلٍ مِنْ ثَقِيفٍ أَسْلَمَ وَعِنْدَهُ عَشْرُ نِسْوَةٍ حِينَ أَسْلَمَ الثَّقَفِيُّ
" أَمْسِكْ مِنْهُنَّ أَرْبَعًا وَفَارِقْ سَائِرَهُنَّ " .
Yahya related to me from Malik that Ibn Shihab said, "I have
heard that the Messenger of Allah, may Allah bless him and grant him
peace, said to a man from Thaqif who had ten wives when he became
muslim, 'Take four and separate from the rest.' "
Yahya related to me from Malik that Ibn Shihab said that he had
heard Said ibn al-Musayyab, Humayd ibn Abd ar-Rahman ibn Awf,
Ubaydullah ibn Abdullah ibn Utba ibn Masud, and Sulayman ibn Yasarall
say, that they had heard Abu Hurayra say that he had heard Umar ibn
al-Khattab say, "If a woman is divorced by her husband once or twice,
and he leaves her until she is free to marry and she marries another
husband and he dies or divorces her, and then she marries her first
husband, she is with him according to what remains of her divorce."
Malik said, "That is what is done among us and there is no
dispute about it."
Yahya related to me from Malik from Thabit ibn al-Ahnaf that he
married an umm walad of Abd ar-Rahman ibn Zayd ibn al-Khattab. He
said, "Abdullah ibn Abd ar-Rahman ibn Zayd ibn al-Khattab summoned me
and I went to him. I came in upon him and there were whips and two
iron fetters placed there, and two of his slaves whom he had made to
sit there. He said, 'Divorce her, or by He by whom one swears, I will
do such-and-such to you!' I said, 'It is divorce a thousand times.'
Then I left him and I saw Abdullah ibn Umar on the road to Makka and I
told him about my situation. Abdullah ibn Umar was furious, and said,
'That is not divorce, and she is not haram for you, so return to your
home.' I was still not at ease so I went to Abdullah ibn az-Zubayr who
was the Amir of Makka at that time. I told him about my situation and
what Abdullah ibn Umar had said to me. Abdullah ibn az-Zubayr said to
me, 'She is not haram for you, so return to your home,' and he wrote
to Jabir ibn al-Aswad az-Zuhra who was the Amir of Madina and ordered
him to punish Abdullah ibn Abdar-Rahman and to have him leave me and
my family alone. I went to Madina, and Safiyya, the wife of Abdullah
ibn Umar fitted out my wife so that she could bring her to my house
with the knowledge of Abdullah ibn Umar. Then I invited Abdullah ibn
Umar on the day of my wedding to the wedding feast and he came."
Yahya related to me from Malik that Abdullah ibn Dinar said, "I
heard Abdullah ibn Umar recite from the Qur'an, 'Prophet! When you
divorce women, divorce them at the beginning of their idda.'"
Malik said, "He meant by that, to make one pronouncement of divorce at
the beginning of each period of purity."
Yahya related to me from Malik from Hisham ibn Urwa that his
father said, "It used to be that a man would divorce his wife and then
return to her before her idda was over, and that was alright, even if
he divorced her a thousand times. The man went to his wife and then
divorced her and when the end of her idda was in sight, he took her
back and then divorced her and said, 'No! By Allah, I will not go to
you and you will never be able to marry again.' Allah, the Blessed,
the Exalted, sent down, 'Divorce is twice, then honourable retention
or setting free kindly.' People then turned towards divorce in a new
light from that day whether or not they were divorced or not
divorced."
Yahya related to me from Malik from Thawr ibn Zayd ad-Dili that
Allah, the Blessed, the Exalted, sent down about a man who divorced
his wife and then returned to her while he had no need of her and did
not mean to keep her so as to make the idda period long for her by
that in order to do her harm, "Do not retain them by force, to
transgress. Whoever does that has wronged himself." (Sura 2 ayat 231).
Allah warns them by that ayat.
Yahya related to me from Malik that he had heard that Said ibn
al-Musayyab and Sulayman ibn Yasar were asked about a man who divorced
when he was drunk. They said, "When a drunk man divorces, his divorce
is allowed. If he kills, he is killed for it."
Malik said,
"That is what is done among us."
Yahya related to me from
Malik that he had heard that Said ibn al-Musayyab said, "If a man does
not find the means to spend on his wife, they are to be separated . "
Malik said, "That is what I saw the people of knowledge in
our city doing."
29.30 Idda of Widows when Pregnant
Yahya related to me from Malik from Abdu Rabbih ibn Said ibn Qays
that Abu Salama ibn Abd ar-Rahman said that Abdullah ibn Abbas and Abu
Hurayra were asked when a pregnant woman whose husband had died could
remarry. Ibn Abbas said, "At the end of two periods." Abu Hurayra
said, "When she gives birth, she is free to marry." Abu Salama ibn Abd
ar-Rahman visited Umm Salama, the wife of the Prophet, may Allah bless
him and grant him peace, and asked her about it Umm Salama said,
''Subaya al-Aslamiya gave birth half a month after the death of her
husband, and two men asked to marry her. One was young and the other
was old. She preferred the young man and so the older man said, 'You
are not free to marry yet.' Her family were away and he hoped that
when her family came, they would give her to him. She went to the
Messenger of Allah, may Allah bless him and grant him peace, and he
said, 'You are free to marry, so marry whomever you wish.' "
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
was asked about a woman whose husband died while she was pregnant, and
he said, "When she gives birth, she is free to marry." A man of the
Ansar who was with him told him that Umar ibn al-Khattab had said,
"Had she given birth while her husband was still on his bed, unburied,
she would be free to marry."
USC-MSA web (English) reference : Book 29, Hadith 84
Hadith 512470
Chapter 29: Divorce - كتاب الطلاق
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ هِشَامِ بْنِ عُرْوَةَ، عَنْ أَبِيهِ، عَنِ الْمِسْوَرِ بْنِ مَخْرَمَةَ، أَنَّهُ أَخْبَرَهُ أَنَّ سُبَيْعَةَ الأَسْلَمِيَّةَ نُفِسَتْ بَعْدَ وَفَاةِ زَوْجِهَا بِلَيَالٍ فَقَالَ لَهَا رَسُولُ اللَّهِ صلى الله عليه وسلم
" قَدْ حَلَلْتِ فَانْكِحِي مَنْ شِئْتِ " .
Yahya related to me from Malik from Hisham ibn 'Urwa from his
father that al-Miswar ibn Makhrama told him that Subaya al-Aslamiya
gave birth a few nights after the death of her husband. The Messenger
of Allah, may Allah bless him and grant him peace, said to her, "You
are free to marry, so marry whomever you wish."
Yahya related to me from Malik from Yahya ibn Said from Sulayman
ibn Yasar that Abdullah ibn Abbas and Abu Salama ibn Abd ar-Rahman ibn
Awf differed on the question of a wornan who gave birth a few nights
after the death of her husband. Abu Salama said, "When she gives birth
to the child she is carrying, she is free to marry." Ibn Abbas said,
"At the end of two periods." Abu Hurayra came and said, "I am with my
nephew", meaning Abu Salama. They sent Kurayb, a mawla of Abdullah ibn
Abbas to Umm Salama, the wife of the Prophet, may Allah bless him and
grant him peace, to ask her about it. He came back and told them that
she had said that Subaya al-Aslamiya had given birth a few nights
after the death of her husband, and she had brought the matter to the
Messenger of Allah, may Allah bless him and grant him peace, and he
had said, "You are free to marry, so marry whomever you wish."
Malik said, "This is how the people of knowledge here continue to
act."
29.31 Widows Remaining in Their Houses until Free to
Marry
Yahya related to me from Malik from Said ibn Ishaq ibn Kab ibn
Ujra from his paternal aunt, Zaynab bint Kab ibn Ujra that al-Furaya
bint Malik ibn Sinan, the sister of Abu Said al-Khudri, informed her
that she went to the Messenger of Allah, may Allah bless him and grant
him peace, and asked to be able to return to her people among the Banu
Khudra since her husband had gone out in search of some of his slaves
who had run away and he had caught up with them near al-Qudum, (which
is 6 miles from Madina), and they had killed him.
She said,
"I asked the Messenger of Allah, may Allah bless him and grant him
peace, if I could return to my people in the Banu Khudra, as my
husband had not left me in a dwelling which belonged to him, and had
left me no maintenance. The Messenger of Allah, may Allah bless him
and grant him peace, said,'Yes.' So I left. When I was in the
courtyard, the Messenger of Allah, may Allah bless him and grant him
peace, called me or summoned me, and I answered him. He said, 'What
did you say?' I repeated the story about my husband. He said, 'Stay in
your house until what is written reaches its term.' I did the idda in
the house for four months and ten days."
She added, "When
Uthman ibn Affan sent for me, I told him that, and he followed it and
made decisions by it."
Yahya related to me from Malik from Humayd ibn Qays al-Makki from
Amr ibn Shuayb from Said ibn al-Musayyab that Umar ibn al-Khattab sent
back widows from the desert and prevented them from doing the hajj.
Yahya related to me from Malik from Yahya ibn Saqd that he
had heard that as-Sa'ib ibn Khabbab died, and his wife went to
Abdullah ibn Umar and mentioned to him that her husband had died and
mentioned some land which they had at Qanah, (a district on the
outskirts of Madina), and asked him if it would be alright for her to
stay overnight there. He forbade her to do so. So, she went out before
dawn from Madina and spent the whole day on their land, but when
evening came, she spent the night in her house.
Yahya related to me from Malik that Hisham ibn Urwa said about a
Bedouin woman whose husband died, that she was to stay where her
people stayed.
Malik said, "This is what is done among us."
Yahya related to me from Malik from Nafi that Abdullan ibn Umar
said, "The only place a woman whose husband has died and a woman who
is absolutely divorced can spend the night is in their houses."
Yahya related to me from Malik that Yahya ibn Said said that he
had heard al-Qasim ibn Muhammad say that Zayd ibn Abd al-Malik
separated some men and their wives who were slave-girls who had borne
children to men who had died, because they had married them after one
or two menstrual periods. He separated them until they had done an
idda of four months and ten days. Al-Qasim ibn Muhammad said, "Glory
be to Allah! Allah says in His Book, 'Those of you who die, leaving
wives, they are not wives.' "
Yahya related to me from Malik that he had heard that Said ibn
al-Musayyab and Sulayman ibn Yasar said, "The idda of a slave-girl
when her husband dies is two months and five days."
Yahya related to me the like of that from Malik from Ibn Shihab.
Malik said, about a slave who divorced a slave-girl but did
not make it absolute, "He can return to her. If he then dies while she
is still in the idda from her divorce, she does the idda of a slave-
girl whose husband dies, and it is two months and five days. If she
has been set free and he can return to her, and she does not choose to
separate after she has been set free, and he dies while she is in the
idda from the divorce, she does the idda of a free woman whose husband
has died, four months and ten days. That is because the idda of
widowhood befell her while she was free, so her idda is the idda of a
free woman."
Malik said, "That is what is done among us."
Yahya related to me from Malik from Rabia ibn Abi Abd ar-Rahman
from Muhammad ibn Yahya ibn Habban that Ibn Muhayriz said, "I went
into the mosque and saw Abu Said al-Khudri and so I sat by him and
asked him about coitus interruptus. Abu Said al-Khudri said, 'We went
out with the Messenger of Allah, may Allah bless him and grant him
peace, on the expedition to the Banu al-Mustaliq. We took some Arabs
prisoner, and we desired the women as celibacy was hard for us. We
wanted the ransom, so we wanted to practise coitus interruptus. We
said, 'Shall we practise coitus interruptus while the Messenger of
Allah, may Allah bless him and grant him peace, is among us before we
ask him?' We asked him about that and he said, 'You don't have to not
do it. There is no self which is to come into existence up to the Day
of Rising but that it will come into existence.' "
Yahya related to me from Malik from Abu'n-Nadr, the mawla of Umar
ibn Ubaydullah from Amir ibn Sad ibn Abi Waqqas from his father that
he used to practise coitus interruptus.
Yahya related to me from Malik from Abu'n-Nadr, the mawla of Umar
ibn Ubaydullah from Ibn Aflah, the mawla of Abu Ayyub al-Ansari from
an umm walad of Abu Ayyubal-Ansari that he practised coitus
interruptus.
Yahya related to me from Malik from Damra ibn Said al-Mazini from
al-Hajjaj ibn Amr ibn Ghaziya that he was sitting with Zayd ibn Thabit
when Ibn Fahd came to him. He was from the Yemen. He said, "Abu Said!
I have slave-girls. None of the wives in my keep are more pleasing to
me than them, and not all of them please me so much that I want a
child by them, shall I then practise coitus interruptus?" Zayd ibn
Thabit said, "Give an opinion, Hajjaj!" "I said, 'May Allah forgive
you! We sit with you in order to learn from you!' He said, 'Give an
opinion! 'I said, 'She is your field, if you wish, water it, and if
you wish, leave it thirsty. I heard that from Zayd.' Zayd said, 'He
has spoken the truth.' "
Yahya related to me from Malik from Humayd ibn Qays al-Makki that
a man called Dhafif said that Ibn Abbas was asked about coitus
interruptus. He called a slave-girl of his and said, "Tell them." She
was embarrassed. He said, "It is alright, and I do it myself."
Malik said, "A man does not practise coitus interruptus with a
free woman unless she gives her permission. There is no harm in
practising coitus interruptus with a slave-girl without her
permission. Someone who has someone else's slave-girl as a wife, does
not practise coitus interruptus with her unless her people give him
permission."
Yahya related to me from Malik from Abdullah ibn Abi Bakr ibn
Muhammad ibn Amr ibn Hazm from Humayd ibn Nafi that Zaynab bint Abi
Salama related these three traditions to him. Zaynab said, "I visited
Umm Habiba, the wife of the Prophet, may Allah bless him and grant him
peace, when her father Abu Sufyan ibn Harb had died. Umm Habiba called
for a yellowy perfume perhaps khaluq or something else. She rubbed the
perfume first on a slave-girl and she then wiped it on the sides of
her face and said, 'By Allah! I have no need of perfume but I heard
the Messenger of Allah, may Allah bless him and grant him peace, say,
'It is not halal for a woman who trusts in Allah and the Last Day to
abstain from adornment in mourning for someone who has died, for more
than three nights, except for four months and ten days for a husband.'
"
USC-MSA web (English) reference : Book 29, Hadith 101
Hadith 512660
Chapter 29: Divorce - كتاب الطلاق
قَالَتْ زَيْنَبُ ثُمَّ دَخَلْتُ عَلَى زَيْنَبَ بِنْتِ جَحْشٍ زَوْجِ النَّبِيِّ صلى الله عليه وسلم حِينَ تُوُفِّيَ أَخُوهَا فَدَعَتْ بِطِيبٍ فَمَسَّتْ مِنْهُ ثُمَّ قَالَتْ وَاللَّهِ مَا لِي بِالطِّيبِ حَاجَةٌ غَيْرَ أَنِّي سَمِعْتُ رَسُولَ اللَّهِ صلى الله عليه وسلم يَقُولُ
" لاَ يَحِلُّ لاِمْرَأَةٍ تُؤْمِنُ بِاللَّهِ وَالْيَوْمِ الآخِرِ تُحِدُّ عَلَى مَيْتٍ فَوْقَ ثَلاَثِ لَيَالٍ إِلاَّ عَلَى زَوْجٍ أَرْبَعَةَ أَشْهُرٍ وَعَشْرًا " .
Zaynab said, "I went to the house of Zaynab bint Jahsh, the wife
of the Prophet, may Allah bless him and grant him peace, when her
brother had died. She called for perfume and put some on and said, 'By
Allah! I have no need of perfume, but I heard the Messenger of Allah,
may Allah bless him and grant him peace, say, 'It is not halal for a
woman who trusts in Allah and the Last Day to abstain from adornment
in mourning for someone who has died for more than three nights,
except for four months and ten days for a husband.' "
Zaynab said, "I heard my mother, Umm Salama, the wife of the
Prophet, may Allah bless him and grant him peace, say that a woman
came to the Messenger of Allah, may Allah bless him and grant him
peace, and said, 'Messenger of Allah! My daughter's husband died, and
her eyes are troubling her, can she put kohl on them?' The Messenger
of Allah, may Allah bless him and grant him peace, said, 'No' two or
three times. Then he said, 'It is only four months and ten days. In
the Jahiliyya, none of you threw away the piece of dung until a year
had passed.' "
Humayd ibn Nafi said, "I asked Zaynab to
explain what 'throwing away the piece of dung at the end of a year'
meant. Zaynab said, 'In the Jahiliyya when a woman's husband died, she
went into a small tent and dressed in the worst of clothes. She did
not touch perfume or anything until a year had passed. Then she was
brought an animal - a donkey, a sheep, or a bird, and she would break
her idda with it, by rubbing her body against it (taftaddu). Rarely
did she break her idda with anything (by rubbing herself against it)
but that it died. Then she would come out and would be given a piece
of dung. She would throw it away and then return to whatever she
wished of perfumes or whatever.' "
Malik explained,
'Taftaddu' means to wipe her skin with it in the same way as with a
healing charm."
USC-MSA web (English) reference : Book 29, Hadith 103
Hadith 512680
Chapter 29: Divorce - كتاب الطلاق
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ نَافِعٍ، عَنْ صَفِيَّةَ بِنْتِ أَبِي عُبَيْدٍ، عَنْ عَائِشَةَ، وَحَفْصَةَ، زَوْجَىِ النَّبِيِّ صلى الله عليه وسلم أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ " لاَ يَحِلُّ لاِمْرَأَةٍ تُؤْمِنُ
Yahya related to me from Malik from Nafi from Safiyya bint Abi
Ubayd from A'isha and Hafsa, the wives of the Prophet, may Allah bless
him and grant him peace, that the Messenger of Allah, may Allah bless
him and grant him peace, said, "It is not halal for a woman in
mourning for someone who has died, if she trusts in Allah and the Last
Day, to abstain from adornment for more than three nights, except for
a husband."
USC-MSA web (English) reference : Book 29, Hadith 104
Hadith 512690
Chapter 29: Divorce - كتاب الطلاق
وَحَدَّثَنِي عَنْ مَالِكٍ، أَنَّهُ بَلَغَهُ أَنَّ أُمَّ سَلَمَةَ، زَوْجَ النَّبِيِّ صلى الله عليه وسلم قَالَتْ لاِمْرَأَةٍ حَادٍّ عَلَى زَوْجِهَا اشْتَكَتْ عَيْنَيْهَا فَبَلَغَ ذَلِكَ مِنْهَا اكْتَحِلِي بِكُحْلِ الْجِلاَءِ بِاللَّيْلِ وَامْسَحِيهِ بِالنَّهَارِ .
Yahya related to me from Malik that he had heard that Umm Salama,
the wife of the Prophet, may Allah bless him and grant him peace, said
to a woman in mourning for her husband whose eyes were troubling her
and the pain had become very strong, "Apply jala kohl at night and
wipe it off in the day."
Yahya related to me from Malik that he had heard that Salim ibn
Abdullah and Sulayman ibn Yasar said that if a woman whose husband had
died feared that an inflammation of her eyes might affect her sight or
that some complaint might befall her, she should put kohl on and seek
a remedy with kohl or some other cure even if it had perfume in it.
Malik said, "If there is a necessity, the deen of Allah is
ease."
Yahya related to me from Malik from Nafic that Saffiyya bint Abi
Ubayd suffered from an eye-complaint while she was in mourning for her
husband, Abdullah ibn Umar. She did not apply kohl until her eyes
almost had ramas (a dry white secretion in the corners of the eye).
Malik said, "A woman whose husband has died should anoint her
eyes with olive oil and sesame oil and the like of that since there is
no perfume in it."
Malik said, "A woman in mourning for her
husband should not put on any jewellery - rings, anklets, or such-
like, neither should she dress in any sort of colourful, striped
garment unless it is coarse. She should not wear any cloth dyed with
anything except black, and she should only dress her hair with things
like lotus-tree leaves which do not dye the hair."
108 Yahya related to me from Malik that he had heard that the
Messenger of Allah, may Allah bless him and grant him peace, visited
Umm Salama while she was in mourning for Abu Salama and she had put
aloes on her eyes. He said, "What is this, Umm Salama?" She said, "It
is only aloes, Messenger of Allah." He said, "Put it on at night and
wipe it off in the daytime."
Malik said, "The mourning of a
young girl who has not yet had a menstrual period takes the same form
as the mourning of one who has had a period. She avoids what a mature
woman avoids if her husband dies."
Malik said, "A slave-girl
mourns her husband when he dies for two months and five nights like
her idda.''
Malik said, "An umm walad does not have to mourn
when her master dies, and a slave-girl does not have to mourn when her
master dies. Mourning is for those with husbands."
USC-MSA web (English) reference : Book 29, Hadith 108
Hadith 512730
Chapter 29: Divorce - كتاب الطلاق
وَحَدَّثَنِي عَنْ مَالِكٍ، أَنَّهُ بَلَغَهُ أَنَّ أُمَّ سَلَمَةَ، زَوْجَ النَّبِيِّ صلى الله عليه وسلم كَانَتْ تَقُولُ تَجْمَعُ الْحَادُّ رَأْسَهَا بِالسِّدْرِ وَالزَّيْتِ .
Yahya related to me from Malik that he had heard that Umm Salama,
the wife of the Prophet, may Allah bless him and grant him peace,
said, "A mourning woman can rub her head with lotus leaves and olive
oil.''
USC-MSA web (English) reference : Book 29, Hadith 109
Hadith 512740
Chapter 30: Suckling - كتاب الرضاع
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ عَبْدِ اللَّهِ بْنِ أَبِي بَكْرٍ، عَنْ عَمْرَةَ بِنْتِ عَبْدِ الرَّحْمَنِ، أَنَّ عَائِشَةَ أُمَّ الْمُؤْمِنِينَ، أَخْبَرَتْهَا أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم كَانَ عِنْدَهَا وَأَنَّهَا سَمِعَتْ صَوْتَ رَجُلٍ يَسْتَأْذِنُ فِي بَيْتِ حَفْصَةَ قَالَتْ عَائِشَةُ فَقُلْتُ يَا رَسُولَ اللَّهِ هَذَا رَجُلٌ يَسْتَأْذِنُ فِي بَيْتِكَ . فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " أُرَاهُ فُلاَنًا " . لِعَمٍّ لِحَفْصَةَ مِنَ الرَّضَاعَةِ . فَقَالَتْ عَائِشَةُ يَا رَسُولَ اللَّهِ لَوْ كَانَ فُلاَنٌ حَيًّا - لِعَمِّهَا مِنَ الرَّضَاعَةِ - دَخَلَ عَلَىَّ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " نَعَمْ إِنَّ الرَّضَاعَةَ تُحَرِّمُ مَا تُحَرِّمُ الْوِلاَدَةُ " .
Yahya related to me from Malik from Abdullah ibn Abi Bakr from
Amra bint Abd ar-Rahman that A'isha, umm al-muminin informed her that
the Messenger of Allah, may Allah bless him and grant him peace, was
with her and she heard the voice of a man asking permission to enter
the room of Hafsa. A'isha said that she had said, "Messenger of Allah!
There is a man asking permission to enter your house!" The Messenger
of Allah, may Allah bless him and grant him peace, said, "I think it
is so-and-so" (referring to a paternal uncle of Hafsa by suckling).
A'isha said, "Messenger of Allah! If so-and-so were alive (referring
to her paternal uncle by suckling) could he enter where I am?" The
Messenger of Allah, may Allah bless him and grant him peace, said,
"Yes. Suckling makes haram as birth makes haram."
Yahya related to me from Malik from Hisham ibn Urwa from his
father that A'isha, umm al-muminin said, "My paternal uncle by
suckling came to me and I refused to give him permission to enter
until I had asked the Messenger of Allah, may Allah bless him and
grant him peace, about it. The Messenger of Allah, may Allah bless him
and grant him peace, came and I asked him about it. He said, 'He is
your paternal uncle, so give him permission.' So I said, 'Messenger of
Allah! The woman nursed me not the man.' He said, 'He is your paternal
uncle, so let him enter.' "
A'isha said, "That was after the
veil had been imposed on us."
A'isha added, "What is haram by
birth is made haram by suckling."
Yahya related to me from Malik from Ibn Shihab from Urwa ibn az-
Zubayr that A'isha umm al-muminin told him that Aflah, the brother of
Abu'l-Quays came and asked permission to visit her after the veil had
been lowered, and he was her paternal uncle by suckling. She said, "I
refusedto give him permission to enter. When the Messenger of Allah,
may Allah bless him and grant him peace, came, I told him about what I
had done, and he ordered me to give him permission to enter."
Yahya related to me from Malik from Thawr ibn Zayd ad-Dili that
Abdullah ibn Abbas said, "The milk which a child under two years old
sucks, even if it is only one suck, makes the foster relatives haram."
Yahya related to me from Malik from Ibn Shihab from Amr ibn ash-
Sharid that Abdullah ibn Abbas was asked whether, if a man had two
wives, and one of them nursed a slave-boy, and the other had nursed a
slave-girl, could the slave-boy marry the slave-girl. He said, "No.
The husband is the same."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said, "There is no kinship by suckling except for a person who is
nursed when he is small. There is no kinship by suckling over the age
of two years."
Yahya related to me from Malik from Nafi that Salim ibn Abdullah
ibn Umar informed him that A'isha umm al-muminin sent him away while
he was being nursed to her sister Umm Kulthum bint Abi Bakr as-Siddiq
and said, "Suckle him ten times so that he can come in to see me."
Salim said, "Umm Kulthum nursed me three times and then fell
ill, so that she only nursed me three times. I could not go in to see
A'isha because Umm Kulthum did not finish for me the ten times."
Yahya related to me from Malik from Nafi that Safiyya bint Abi
Ubayd told him that Hafsa, umm al-muminin, sent Asim ibn Abdullah ibn
Sad to her sister Fatima bint Umar ibn al-Khattab for her to suckle
him ten times so that he could come in to see her. She did it, so he
used to come in to see her.
USC-MSA web (English) reference : Book 30, Hadith 8
Hadith 512820
Chapter 30: Suckling - كتاب الرضاع
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ عَبْدِ الرَّحْمَنِ بْنِ الْقَاسِمِ، عَنْ أَبِيهِ، أَنَّهُ أَخْبَرَهُ أَنَّ عَائِشَةَ زَوْجَ النَّبِيِّ صلى الله عليه وسلم كَانَ يَدْخُلُ عَلَيْهَا مَنْ أَرْضَعَتْهُ أَخَوَاتُهَا وَبَنَاتُ أَخِيهَا وَلاَ يَدْخُلُ عَلَيْهَا مَنْ أَرْضَعَهُ نِسَاءُ إِخْوَتِهَا .
Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasim
that his father told him that A'isha, the wife of the Prophet, may
Allah bless him and grant him peace, admitted those whom her sisters
and the daughters of her brother had nursed, and she did not admit
those who were nursed by the wives of her brothers.
Yahya related to me from Malik that Ibrahim ibn Uqba asked Said
ibn al-Musayyab about suckling. Said said, "All that occurs in the
first two years, even if it is only a drop, makes haram. Whatever is
after two years, is only food that is eaten."
Ibrahim ibn
Uqba said, ''Then I asked Urwa ibn az-Zubayr and he told me the same
as what Said ibn al-Musayyab said."
Yahya related to me from Malik that Yahya ibn Said said that he
heard Said ibn al-Musayyab say, "Suckling is only while the child is
in the cradle. If not, it does not cause flesh and blood relations."
Yahya related to me from Malik from Ibn Shihab that he said,
"Suckling however little or much, makes haram. Kinship by suckling
makes men mahram."
Yahya said that he had heard Malik say,
"Suckling, however little or much when it is in the first two years,
makes haram. As for what is after the first two years, little or much,
it does not make anything haram. It is like food."
USC-MSA web (English) reference : Book 30, Hadith 11
Hadith 512860
Chapter 30: Suckling - كتاب الرضاع
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنِ ابْنِ شِهَابٍ، أَنَّهُ سُئِلَ عَنْ رَضَاعَةِ الْكَبِيرِ، فَقَالَ أَخْبَرَنِي عُرْوَةُ بْنُ الزُّبَيْرِ، أَنَّ أَبَا حُذَيْفَةَ بْنَ عُتْبَةَ بْنِ رَبِيعَةَ، وَكَانَ، مِنْ أَصْحَابِ رَسُولِ اللَّهِ صلى الله عليه وسلم وَكَانَ قَدْ شَهِدَ بَدْرًا وَكَانَ تَبَنَّى سَالِمًا الَّذِي يُقَالُ لَهُ سَالِمٌ مَوْلَى أَبِي حُذَيْفَةَ كَمَا تَبَنَّى رَسُولُ اللَّهِ صلى الله عليه وسلم زَيْدَ بْنَ حَارِثَةَ وَأَنْكَحَ أَبُو حُذَيْفَةَ سَالِمًا وَهُوَ يَرَى أَنَّهُ ابْنُهُ أَنْكَحَهُ بِنْتَ أَخِيهِ فَاطِمَةَ بِنْتَ الْوَلِيدِ بْنِ عُتْبَةَ بْنِ رَبِيعَةَ وَهِيَ يَوْمَئِذٍ مِنَ الْمُهَاجِرَاتِ الأُوَلِ وَهِيَ مِنْ أَفْضَلِ أَيَامَى قُرَيْشٍ فَلَمَّا أَنْزَلَ اللَّهُ تَعَالَى فِي كِتَابِهِ فِي زَيْدِ بْنِ حَارِثَةَ مَا أَنْزَلَ فَقَالَ {ادْعُوهُمْ لآبَائِهِمْ هُوَ أَقْسَطُ عِنْدَ اللَّهِ فَإِنْ لَمْ تَعْلَمُوا آبَاءَهُمْ فَإِخْوَانُكُمْ فِي الدِّينِ وَمَوَالِيكُمْ} رُدَّ كُلُّ وَاحِدٍ مِنْ أُولَئِكَ إِلَى أَبِيهِ فَإِنْ لَمْ يُعْلَمْ أَبُوهُ رُدَّ إِلَى مَوْلاَهُ فَجَاءَتْ سَهْلَةُ بِنْتُ سُهَيْلٍ وَهِيَ امْرَأَةُ أَبِي حُذَيْفَةَ وَهِيَ مِنْ بَنِي عَامِرِ بْنِ لُؤَىٍّ إِلَى رَسُولِ اللَّهِ صلى الله عليه وسلم فَقَالَتْ يَا رَسُولَ اللَّهِ كُنَّا نَرَى سَالِمًا وَلَدًا وَكَانَ يَدْخُلُ عَلَىَّ وَأَنَا فُضُلٌ وَلَيْسَ لَنَا إِلاَّ بَيْتٌ وَاحِدٌ فَمَاذَا تَرَى فِي شَأْنِهِ فَقَالَ لَهَا رَسُولُ اللَّهِ صلى الله عليه وسلم " أَرْضِعِيهِ خَمْسَ رَضَعَاتٍ فَيَحْرُمُ بِلَبَنِهَا " . وَكَانَتْ تَرَاهُ ابْنًا مِنَ الرَّضَاعَةِ فَأَخَذَتْ بِذَلِكَ عَائِشَةُ أُمُّ الْمُؤْمِنِينَ فِيمَنْ كَانَتْ تُحِبُّ أَنْ يَدْخُلَ عَلَيْهَا مِنَ الرِّجَالِ فَكَانَتْ تَأْمُرُ أُخْتَهَا أُمَّ كُلْثُومٍ بِنْتَ أَبِي بَكْرٍ الصِّدِّيقِ وَبَنَاتِ أَخِيهَا أَنْ يُرْضِعْنَ مَنْ أَحَبَّتْ أَنْ يَدْخُلَ عَلَيْهَا مِنَ الرِّجَالِ وَأَبَى سَائِرُ أَزْوَاجِ النَّبِيِّ صلى الله عليه وسلم أَنْ يَدْخُلَ عَلَيْهِنَّ بِتِلْكَ الرَّضَاعَةِ أَحَدٌ مِنَ النَّاسِ وَقُلْنَ لاَ وَاللَّهِ مَا نَرَى الَّذِي أَمَرَ بِهِ رَسُولُ اللَّهِ صلى الله عليه وسلم سَهْلَةَ بِنْتَ سُهَيْلٍ إِلاَّ رُخْصَةً مِنْ رَسُولِ اللَّهِ صلى الله عليه وسلم فِي رَضَاعَةِ سَالِمٍ وَحْدَهُ لاَ وَاللَّهِ لاَ يَدْخُلُ عَلَيْنَا بِهَذِهِ الرَّضَاعَةِ أَحَدٌ فَعَلَى هَذَا كَانَ أَزْوَاجُ النَّبِيِّ صلى الله عليه وسلم فِي رَضَاعَةِ الْكَبِيرِ .
Yahya related to me from Malik from Ibn Shihab that he was asked
about the suckling of an older person. He said, ''Urwa ibn az-Zubayr
informed me that Abu Hudhayfa ibn Utba ibn Rabia, one of the
companions of the Messenger of Allah, may Allah bless him and grant
him peace, who was present at Badr, adopted Salim (who is called
Salim, the mawla of Abu Hudhayfa) as the Messenger of Allah, may Allah
bless him and grant him peace, adopted Zayd ibn Haritha. He thought of
him as his son, and Abu Hudhayfa married him to his brother's sister,
Fatima bint al-Walid ibn Utba ibn Rabia, who was at that time among
the first emigrants. She was one of the best unmarried women of the
Quraysh. When Allah the Exalted sent down in His Book what He sent
down about Zayd ibn Haritha, 'Call them after their true fathers. That
is more equitable in the sight of Allah. If you do not know who their
fathers were then they are your brothers in the deen and your mawali,'
(Sura 33 ayat 5) people in this position were traced back to their
fathers. When the father was not known, they were traced to their
mawla.
"Sahla bint Suhayl who was the wife of Abu Hudhayfa,
and one of the tribe of Amr ibn Luayy, came to the Messenger of Allah,
may Allah bless him and grant him peace, and said, 'Messenger of
Allah! We think of Salim as a son and he comes in to see me while I am
uncovered. We only have one room, so what do you think about the
situation?' The Messenger of Allah, may Allah bless him and grant him
peace, said, 'Give him five drinks of your milk and he will be mahram
by it.' She then saw him as a foster son. A'isha umm al-muminin took
that as a precedent for whatever men she wanted to be able to come to
see her. She ordered her sister, Umm Kulthum bint Abi Bakr as-Siddiq
and the daughters of her brother to give milk to whichever men she
wanted to be able to come in to see her. The rest of the wives of the
Prophet, may Allah bless him and grant him peace, refused to let
anyone come in to them by such nursing. They said, 'No! By Allah! We
think that what the Messenger of Allah, may Allah bless him and grant
him peace, ordered Sahla bint Suhayl to do was only an indulgence
concerning the nursing of Salim alone. No! By Allah! No one will come
in upon us by such nursing!'
"This is what the wives of the
Prophet, may Allah bless him and grant him peace, thought about the
suckling of an older person."
Yahya related to me from Malik that Abdullah ibn Dinar said, "A
man came to Abdullah ibn Umar when I waswith him at the place where
judgments were given and asked him about the suckling of an older
person. Abdullah ibn Umar replied, 'A man came to Umar ibn al-Khattab
and said, 'I have a slave-girl and I used to have intercourse with
her. My wife went to her and suckled her. When I went to the girl, my
wife told me to watch out, because she had suckled her!' Umar told him
to beat his wife and to go to his slave-girl because kinship by
suckling was only by the suckling of the young.' "
Yahya related to me from Malik from Yahya ibn Said that a man
said to Abu Musa al-Ashari, "I drank some milk from my wife's breasts
and it went into my stomach." Abu Musa said, "I can only but think
that she is haram for you." Abdullah ibn Masud said, "Look at what
opinion you are giving the man." Abu Musa said, "Then what do you
say?" Abdullah ibn Masud said, "There is only kinship by suckling in
the first two years."
Abu Musa said, "Do not ask me about
anything while this learned man is among you."
USC-MSA web (English) reference : Book 30, Hadith 14
Hadith 512890
Chapter 30: Suckling - كتاب الرضاع
وَحَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ عَبْدِ اللَّهِ بْنِ دِينَارٍ، عَنْ سُلَيْمَانَ بْنِ يَسَارٍ، عَنْ عُرْوَةَ بْنِ الزُّبَيْرِ، عَنْ عَائِشَةَ أُمِّ الْمُؤْمِنِينَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" يَحْرُمُ مِنَ الرَّضَاعَةِ مَا يَحْرُمُ مِنَ الْوِلاَدَةِ " .
Yahya related to me from Malik from Abdullah ibn Dinar from
Sulayman ibn Yasar and from Urwa ibn az-Zubayr from A'isha umm al-
muminin, that the Messenger of Allah, may Allah bless him and grant
him peace, said, " What is haram by birth is haram by suckling."
Yahya related to me from Malik that Muhammad ibn Abd ar-Rahman
ibn Nawfal said, ''Urwa ibn az-Zubayr informed me from A'isha umm al-
muminin that Judama bint Wahb al-Asadiyya informed her that she heard
the Messenger of Allah, may Allah bless him and grant him peace, say,
'I intended to prohibit ghila but I remembered that the Greeks and
Persians do that without it causing any injury to their children.' "
Malik explained, "Ghila is that a man has intercourse with
his wife while she is suckling."
USC-MSA web (English) reference : Book 30, Hadith 16
Hadith 512910
Chapter 30: Suckling - كتاب الرضاع
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ عَبْدِ اللَّهِ بْنِ أَبِي بَكْرِ بْنِ حَزْمٍ، عَنْ عَمْرَةَ بِنْتِ عَبْدِ الرَّحْمَنِ، عَنْ عَائِشَةَ، زَوْجِ النَّبِيِّ صلى الله عليه وسلم أَنَّهَا قَالَتْ كَانَ فِيمَا أُنْزِلَ مِنَ الْقُرْآنِ عَشْرُ رَضَعَاتٍ مَعْلُومَاتٍ يُحَرِّمْنَ ثُمَّ نُسِخْنَ بِخَمْسٍ مَعْلُومَاتٍ فَتُوُفِّيَ رَسُولُ اللَّهِ صلى الله عليه وسلم وَهُوَ فِيمَا يُقْرَأُ مِنَ الْقُرْآنِ .
Yahya related to me from Malik from Abdullah ibn Abi Bakr ibn
Hazm from Amra bint Abd ar-Rahman that A'isha, the wife of the
Prophet, may Allah bless him and grant him peace, said, "Amongst what
was sent down of the Qur'an was 'ten known sucklings make haram' -
then it was abrogated by 'five known sucklings'. When the Messenger of
Allah, may Allah bless him and grant him peace, died, it was what is
now recited of the Qur'an."
Yahya said that Malik said, "One
does not act on this."
Yahya related to me from Malik from a reliable source from Amr
ibn Shuayb from his father from his father's father that the Messenger
of Allah, may Allah bless him and grant him peace, forbade
transactions in which nonrefundable deposits were paid.
Malik
said, "That is, in our opinion, but Allah knows best, that for
instance, a man buys a slave or slave-girl or rents an animal and then
says to the person from whom he bought the slave or leased the animal,
'I will give you a dinar or a dirham or whatever on the condition that
if I actually take the goods or ride what I have rented from you, then
what I have given you already goes towards payment of the goods or
hire of the animal. If I do not purchase the goods or hire the animal,
then what I have given you is yours without liability on your part.' "
Malik said, "According to the way of doing things with us
there is nothing wrong in bartering an arabic speaking merchant slave
for abyssinian slaves or any other type that are not his equal in
eloquence, trading, shrewdness, and know-how. There is nothing wrong
in bartering one slave like this for two or more other slaves with a
stated delay in the terms if he is clearly different. If there is no
appreciable difference between the slaves, two should not be bartered
for one with a stated delay in the terms even if their racial type is
different."
Malik said, "There is nothing wrong in selling
what has been bought in such a transaction before taking possession of
all of it as long as you receive the price for it from some one other
than the original owner."
Malik said, "An addition to the
price must not be made for a foetus in the womb of its mother when she
is sold because that is gharar (an uncertain transaction). It is not
known whether the child will be male or female, good-looking or ugly,
normal or handicapped, alive or dead. All these things will affect the
price."
Malik said that in a transaction where a slave or
slave-girl was bought for one hundred dinars with a stated credit
period that if the seller regretted the sale there was nothing wrong
in him asking the buyer to revoke it for ten dinars which he would pay
him immediately or after a period and he would forgo his right to the
hundred dinars which he was owed.
Malik said, "However, if
the buyer regrets and asks the seller to revoke the sale of a slave or
slave-girl in consideration of which he will pay an extra ten dinars
immediately or on credit terms, extended beyond the original term,
that should not be done. It is disapproved of because it is as if, for
instance, the seller is buying the one hundred dinars which is not yet
due on a year's credit term before the year expires for a slave-girl
and ten dinars to be paid immediately or on credit term longer than
the year. This falls into the category of selling gold for gold when
delayed terms enter into it."
Malik said that it was not
proper for a man to sell a slave-girl to another man for one hundred
dinars on credit and then to buy her back for more than the original
price or on a credit term longer than the original term for which he
sold her. To understand why that was disapproved of in that case, the
example of a man who sold a slave-girl on credit and then bought her
back on a credit term longer than the original term was looked at. He
might have sold her for thirty dinars with a month to pay and then buy
her back for sixty dinars with a year or half a year to pay. The
outcome would only be that his goods would have returned to him just
like they were and the other party would have given him thirty dinars
on a month's credit against sixty dinars on a year or half a year's
credit. That was not to be done.
Yahya related to me from Malik from Nafi from Abdullah ibn Umar
that Umar ibn al-Khattab said, "If a slave who has wealth is sold,
that wealth belongs to the seller unless the buyer stipulates its
inclusion."
Malik said, "The generally agreed upon way of
doing things among us is that if the buyer stipulates the inclusion of
the slave's property whether it be cash, debts, or goods of known or
unknown value, then they belong to the buyer, even if the slave
possesses more than that for which he was purchased, whether he was
bought for cash, as payment for a debt, or in exchange for goods. This
is possible because a master is not asked to pay zakat on his slave's
property. If a slave has a slave-girl, it is halal for him to have
intercourse with her by his right of possession. If a slave is freed
or put under contract (kitaba) to purchase his freedom, then his
property goes with him. If he becomes bankrupt, his creditors take his
property and his master is not liable for any of his debts."
Yahya related to me from Malik from Abdullah ibn Abi Bakr ibn
Muhammad ibn Amr ibn Hazm that Aban ibn Uthman and Hisham ibn Ismail
used to mention in their khutbas built-in liability agreements in the
sale of slaves, to cover both a three day period and a similar clause
covering a year. Malik explained, "The defects a lave or slave-girl
are found to have from the time they are bought until the end of the
three days are the responsibility of the seller. The year agreement is
to cover insanity, leprosy, and loss of limbs due to disease. After a
year, the seller is free from any liability."
Malik said,"An
inheritor or someone else who sells a slave or slave-girl without any
such built-in guarantee is not responsible for any fault in the slave
and there is no liability agreement held against him unless he was
aware of a fault and concealed it. If he was aware of a fault, the
lack of guarantee does not protect him. The purchase is returned. In
our view, built-in liability agreements only apply to the purchase of
slaves."
Yahya related to me from Malik from Yahya ibn Said from Salim ibn
Abdullah that Abdullah ibn Umar sold one of his slaves for eight
hundred dirhams with the stipulation that he was not responsible for
defects. The person who bought the slave complained to Abdullah ibn
Umar that the slave had a disease which he had not told him about.
They argued and went to Uthman ibn Affan for a decision . The man
said, "He sold me a slave with a disease which he did not tell me
about." Abdullah said, "I sold to him with the stipulation that I was
not responsible." Uthman ibn Affan decided that Abdullah ibn Umar
should take an oath that he had sold the slave without knowing that he
had any disease. Abdullah ibn Umar refused to take the oath, so the
slave was returned to him and recovered his health in his possession.
Abdullah sold him afterwards for 1500 dirhams.
Malik said,
"The generally agreed upon way of doing things among us about a man
who buys a female slave and she becomes pregnant, or who buys a slave
and then frees him, or if there is any other such matter which has
already happened so that he cannot return his purchase, and a clear
proof is established that there was a fault in that purchase when it
was in the hands of the seller or the fault is admitted by the seller
or someone else, is that the slave or slave-girl is assessed for its
value with the fault it is found to have had on the day of purchase
and the buyer is refunded,from what he paid,the difference between the
price of a slave who is sound and a slave with such a defect.
Malik said, "The generally agreed upon way of doing things among us
regarding a man who buys a slave and then finds out that the slave has
a defect for which he can be returned and meanwhile another defect has
happened to the slave whilst in his possession, is that if the defect
which occurred to the slave in his possession has harmed him, like
loss of a limb, loss of an eye, or something similar, then he has a
choice. If he wants, he can have the price of the slave reduced
commensurate with the defect (he bought him with ) according to the
prices on the day he bought him, or if he likes, he can pay
compensation for the defect which the slave has suffered in his
possession and return him. The choice is up to him. If the slave dies
in his possession, the slave is valued with the defect which he had on
the day of his purchase. It is seen what his price would really have
been. If the price of the slave on the day of purchase without fault
was 100 dinars, and his price on the day of purchase with fault would
have been 80 dinars, the price is reduced by the difference. These
prices are assessed according to the market value on the day the slave
was purchased . "
Malik said, "The generally agreed upon way
of doing things among us is that if a man returns a slave girl in whom
he has found a defect and he has already had intercourse with her, he
must pay what he has reduced of her price if she was a virgin. If she
was not a virgin, there is nothing against his having had intercourse
with her because he had charge of her."
Malik said, "The
generally agreed upon way of doing things among us regarding a person,
whether he is an inheritor or not, who sells a slave, slave-girl, or
animal without a liability agreement is that he is not responsible for
any defect in what he sold unless he knew about the fault and
concealed it. If he knew that there was a fault and concealed it, his
declaration that he was free of responsibility does not absolve him,
and what he sold is returned to him."
Malik spoke about a
situation where a slave-girl was bartered for two other slave-girls
and then one of the slave-girls was found to have a defect for which
she could be returned. He said, "The slave-girl worth two other slave-
girls is valued for her price. Then the other two slave-girls are
valued, ignoring the defect which the one of them has. Then the price
of the slave-girl sold for two slave-girls is divided between them
according to their prices so that the proportion of each of them in
her price is arrived at - to the higher priced one according to her
higher price, and to the other according to her value. Then one looks
at the one with the defect, and the buyer is refunded according to the
amount her share is affected by the defect, be it little or great. The
price of the two slave-girls is based on their market value on the day
that they were bought."
Malik spoke about a man who bought a
slave and hired him out on a long-term or short-term basis and then
found out that the slave had a defect which necessitated his return.
He said that if the man returned the slave because of the defect, he
kept the hire and revenue. "This is the way in which things are done
in our city. That is because, had the man bought a slave who then
built a house for him, and the value of the house was many times the
price of the slave, and he then found that the slave had a defect for
which he could be returned, and he was returned, he would not have to
make payment for the work the slave had done for him. Similarly, he
would keep any revenue from hiring him out, because he had charge of
him. This is the way of doing things among us."
Malik said,
"The way of doing things among us when someone buys several slaves in
one lot and then finds that one of them has been stolen, or has a
defect, is that he looks at the one he finds has been stolen or the
one in which he finds a defect. If he is the pick of those slaves, or
the most expensive, or it was for his sake that he bought them, or he
is the one in whom people see the most excellence, then the whole sale
is returned. If the one who is found to be stolen or to have a defect
is not the pick of the slaves, and he did not buy them for his sake,
and there is no special virtue which people see in him, the one who is
found to have a defect or to have been stolen is returned as he is,
and the buyer is refunded his portion of the total price."
Yahya related to me from Malik from Ibn Shihab that Ubaydullah
ibn Abdullah ibn Utba ibn Masud told him that Abdullah ibn Masud
bought a slave-girl from his wife, Zaynab Ath Thaqafiyya. She made a
condition to him, that if he bought her, she could always buy her back
for the price that he paid. Abdullah ibn Masud asked Umar ibn al-
Khattab about that and Umar ibn al-Khattab said, "Do not go near her
while anyone has a condition concerning her over you."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
would say, "A man should not have intercourse with a slave girl except
one whom, if he wished, he could sell, if he wished, he could give
away, if he wished, he could keep, if he wished, he could do with her
what he wanted ."
Malik said that a man who bought a slave-
girl on condition that he did not sell her, give her away, or do
something of that nature, was not to have intercourse with her. That
was because he was not permitted to sell her or to give her away, so
if he did not own that from her, he did not have complete ownership of
her because an exception had been made concerning her by the hand of
someone else. If that sort of condition entered into it, it was a
messy situation, and the sale was not recommended.
Yahya related to me from Malik from Ibn Shihab that Abdullah ibn
Amir gave Uthman ibn Affan a slave-girl who had a husband whom he had
purchased at Basra. Uthman said, "I will not go near her until her
husband separates from her." Ibn Amir compensated the husband and he
separated from her.
Yahya related to me from Malik from Ibn Shihab from Abu Salama
ibn Abd ar-Rahman ibn Awf that Abd ar-Rahman ibn Awf bought a slave-
girl and found that she had a husband, so he returned her.
USC-MSA web (English) reference : Book 31, Hadith 8
Hadith 513000
Chapter 31: Business Transactions - كتاب البيوع
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" مَنْ بَاعَ نَخْلاً قَدْ أُبِّرَتْ فَثَمَرُهَا لِلْبَائِعِ إِلاَّ أَنْ يَشْتَرِطَ الْمُبْتَاعُ " .
Yahya related to me from Malik from Nafi from Abdullah ibn Umar
that the Messenger of Allah, may Allah bless him and grant him peace,
said, "If palm trees are sold after they have been pollinated, the
fruit belongs to the seller unless the buyer makes a stipulation about
its inclusion."
USC-MSA web (English) reference : Book 31, Hadith 9
Hadith 513010
Chapter 31: Business Transactions - كتاب البيوع
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ نَافِعٍ، عَنِ ابْنِ عُمَرَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم نَهَى عَنْ بَيْعِ الثِّمَارِ حَتَّى يَبْدُوَ صَلاَحُهَا نَهَى الْبَائِعَ وَالْمُشْتَرِيَ .
Yahya related to me from Malik from Nafi from Ibn Umar that the
Messenger of Allah, may Allah bless him and grant him peace, forbade
selling fruit until it had started to ripen. He forbade the
transaction to both buyer and seller.
USC-MSA web (English) reference : Book 31, Hadith 10
Hadith 513020
Chapter 31: Business Transactions - كتاب البيوع
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ حُمَيْدٍ الطَّوِيلِ، عَنْ أَنَسِ بْنِ مَالِكٍ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم نَهَى عَنْ بَيْعِ الثِّمَارِ حَتَّى تُزْهِيَ . فَقِيلَ لَهُ يَا رَسُولَ اللَّهِ وَمَا تُزْهِي فَقَالَ " حِينَ تَحْمَرُّ " . وَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " أَرَأَيْتَ إِذَا مَنَعَ اللَّهُ الثَّمَرَةَ فَبِمَ يَأْخُذُ أَحَدُكُمْ مَالَ أَخِيهِ " .
Yahya related to me from Malik from Humayd at-Tawil from Anas ibn
Malik that the Messenger of Allah, may Allah bless him and grant him
peace, forbade selling fruit until it had become mellow. He was asked,
"Messenger ofAllah! What do you mean by become mellow?" He said, "When
it becomes rosy."
The Messenger of Allah, may Allah bless him
and grant him peace, added, "Allah may prevent the fruit from
maturing, so how can you take payment from your brother for it."
Yahya related to me from Malik from Abu'r-Rijal Muhammad ibn Abd
ar-Rahman ibn Haritha from his mother, Amra bint Abd ar-Rahman that
the Messenger of Allah, may Allah bless him and grant him peace,
forbade selling fruit until it was clear of blight. Malik said,
"Selling fruit before it has begun to ripen is an uncertain
transaction (gharar) ."
Yahya related to me from Malik from Abu'z-Zinad from Kharija ibn
Zayd ibn Thabit that Zayd ibn Thabit did not sell fruit until the
Pleiades were visible, at the end of May.
Malik said, "The
way of doing things among us about selling melons, cucumbers, water-
melons, and carrots is that it is halal to sell them when it is clear
that they have begun to ripen. Then the buyer has what grows until the
season is over. There is no specific timing laid down for that because
the time is well known with people, and it may happen that the crop
will be affected by blight and put a premature end to the season. If
blight strikes and a third or more of the crop is damaged, an
allowance for that is deducted from the price of purchase."
USC-MSA web (English) reference : Book 31, Hadith 13
Hadith 513050
Chapter 31: Business Transactions - كتاب البيوع
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، عَنْ زَيْدِ بْنِ ثَابِتٍ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم أَرْخَصَ لِصَاحِبِ الْعَرِيَّةِ أَنْ يَبِيعَهَا بِخَرْصِهَا .
Yahya related to me from Malik from Nafi from Abdullah ibn Umar
from Zayd ibn Thabit that the Messenger of Allah, may Allah bless him
and grant him peace, allowed the holder of an ariya to barter the
dates on the palm for the amount of dried dates it was estimated that
the palms would produce.
Yahya related to me from Malik from
Da'ud ibn al-Husayn from Abu Sufyan, the mawla of Ibn Abi Ahmad, from
Abu Hurayra that the Messenger of Allah, may Allah bless him and grant
him peace, allowed the produce of an ariya to be bartered for an
estimation of what the produce would be when the crop was less than
five awsuq or equal to five awsuq. Da'ud wasn't sure whether he said
five awsuq or less than five.
Malik said, ''Ariyas can be
sold for an estimation of what amount of dried dates will be produced.
The crop is examined and estimated while still on the palm. This is
allowed because it comes into the category of delegation of
responsibility, handing over rights, and involving a partner. Had it
been like a form of sale, no one would have made someone else a
partner in the produce until it was ready nor would he have renounced
his right to any of it or put someone in charge of it until the buyer
had taken possession."
USC-MSA web (English) reference : Book 31, Hadith 14
Hadith 513070
Chapter 31: Business Transactions - كتاب البيوع
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ أَبِي الرِّجَالِ، مُحَمَّدِ بْنِ عَبْدِ الرَّحْمَنِ عَنْ أُمِّهِ، عَمْرَةَ بِنْتِ عَبْدِ الرَّحْمَنِ أَنَّهُ سَمِعَهَا تَقُولُ، ابْتَاعَ رَجُلٌ ثَمَرَ حَائِطٍ فِي زَمَانِ رَسُولِ اللَّهِ صلى الله عليه وسلم فَعَالَجَهُ وَقَامَ فِيهِ حَتَّى تَبَيَّنَ لَهُ النُّقْصَانُ فَسَأَلَ رَبَّ الْحَائِطِ أَنْ يَضَعَ لَهُ أَوْ أَنْ يُقِيلَهُ فَحَلَفَ أَنْ لاَ يَفْعَلَ فَذَهَبَتْ أُمُّ الْمُشْتَرِي إِلَى رَسُولِ اللَّهِ صلى الله عليه وسلم فَذَكَرَتْ ذَلِكَ لَهُ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" تَأَلَّى أَنْ لاَ يَفْعَلَ خَيْرًا " . فَسَمِعَ بِذَلِكَ رَبُّ الْحَائِطِ فَأَتَى رَسُولَ اللَّهِ صلى الله عليه وسلم فَقَالَ يَا رَسُولَ اللَّهِ هُوَ لَهُ .
Yahya related to me from Malik that Abu'r-Rijal Muhammad ibn Abd
ar-Rahman heard his mother, Amra bint Abd ar-Rahman say, "A man bought
the fruit of an enclosed orchard in the time of the Messenger of
Allah, may Allah bless him and grant him peace, and he tended it while
staying on the land. It became clear to him that there was going to be
some loss. He asked the owner of the orchard to reduce the price for
him or to revoke the sale, but the owner made an oath not to do so.
The mother of the buyer went to the Messenger of Allah, may Allah
bless him and grant him peace, and told him about it. The Messengerof
Allah, may Allah bless him and grant him peace, said, 'By this oath,
he has sworn not to do good.' The owner of the orchard heard about it
and went to the Messenger of Allah, may Allah bless him and grant him
peace, and said, 'Messenger of Allah, the choice is his.' "
Yahya related to me from Malik that he had heard that Umar ibn
Abd al-Aziz decided in a case to make a reduction for crop damage.
Malik said, "That is what we do in the situation."
Malik added, "Crop damage is whatever causes loss of a third or more
for the purchaser. Anything less is not counted as crop damage."
Yahya related to me from Malik from Abdullah ibn Abi Bakr that
his grandfather, Muhammad ibn Amr ibn Hazm sold the fruit of an
orchard of his called al-Afraq, for 4,000 dirhams, and he kept aside
800 dirhams' worth of dry dates.
Yahya related to me from Malik from Abu'r-Rijal, Muhammad ibn
Abdar-Rahman ibn Haritha that his mother, Amra bint Abd ar-Rahman used
to sell her fruit and keep some of it aside.
Malik said, "The
generally agreed upon way of doing things among us is that when a man
sells the fruit of his orchard, he can keep aside up to a third of the
fruit, but that is not to be exceeded. There is no harm in what is
less than a third."
Malik added that he thought there was no
harm for a man to sell the fruit of his orchard and keep aside only
the fruit of a certain palm-tree or palm-trees which he had chosen and
whose number he had specified, because the owner was only keeping
aside certain fruit of his own orchard and everything else he sold.
USC-MSA web (English) reference : Book 31, Hadith 19
Hadith 513120
Chapter 31: Business Transactions - كتاب البيوع
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ زَيْدِ بْنِ أَسْلَمَ، عَنْ عَطَاءِ بْنِ يَسَارٍ، أَنَّهُ قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " التَّمْرُ بِالتَّمْرِ مِثْلاً بِمِثْلٍ " . فَقِيلَ لَهُ إِنَّ عَامِلَكَ عَلَى خَيْبَرَ يَأْخُذُ الصَّاعَ بِالصَّاعَيْنِ . فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " ادْعُوهُ لِي " . فَدُعِيَ لَهُ فَقَالَ لَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم " أَتَأْخُذُ الصَّاعَ بِالصَّاعَيْنِ " . فَقَالَ يَا رَسُولَ اللَّهِ لاَ يَبِيعُونَنِي الْجَنِيبَ بِالْجَمْعِ صَاعًا بِصَاعٍ . فَقَالَ لَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم " بِعِ الْجَمْعَ بِالدَّرَاهِمِ ثُمَّ ابْتَعْ بِالدَّرَاهِمِ جَنِيبًا " .
Yahya related to me from Malik from Zayd ibn Aslam that Ata ibn
Yasar said, "The Messenger of Allah, may Allah bless him and grant him
peace, said, 'Dried dates for dried dates is like for like.' It was
said to him, 'Your agent in Khaybar takes one sa for two.' The
Messenger of Allah, may Allah bless him and grant him peace, said,
'all him to me.' So he was called for. The Messenger of Allah, may
Allah bless him and grant him peace, asked, 'Do you take one sa for
two?' He replied, 'Messengerof Allah! Why should they sell me good
dates for assorted low quality dates, sa for sa!' The Messenger of
Allah, may Allah bless him and grant him peace, said, 'Sell the
assorted ones for dirhams, and then buy the good ones with those
dirhams.' "
USC-MSA web (English) reference : Book 31, Hadith 20
Hadith 513130
Chapter 31: Business Transactions - كتاب البيوع
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ عَبْدِ الْحَمِيدِ بْنِ سُهَيْلِ بْنِ عَبْدِ الرَّحْمَنِ بْنِ عَوْفٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي سَعِيدٍ الْخُدْرِيِّ، وَعَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم اسْتَعْمَلَ رَجُلاً عَلَى خَيْبَرَ فَجَاءَهُ بِتَمْرٍ جَنِيبٍ فَقَالَ لَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم " أَكُلُّ تَمْرِ خَيْبَرَ هَكَذَا " . فَقَالَ لاَ وَاللَّهِ يَا رَسُولَ اللَّهِ إِنَّا لَنَأْخُذُ الصَّاعَ مِنْ هَذَا بِالصَّاعَيْنِ وَالصَّاعَيْنِ بِالثَّلاَثَةِ . فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم " لاَ تَفْعَلْ بِعِ الْجَمْعَ بِالدَّرَاهِمِ ثُمَّ ابْتَعْ بِالدَّرَاهِمِ جَنِيبًا " .
Yahya related to me from Malik from Abd al-Hamid ibn Suhayl ibn
Abd ar-Rahman ibn Awf from Said ibn al-Musayyab from Abu Said al-
Khudri and from Abu Hurayra that the Messenger of Allah, may Allah
bless him and grant him peace, appointed a man as an agent in Khaybar,
and he brought him some excellent dates. The Messenger of Allah, may
Allah bless him and grant him peace, said to him, "Are all the dates
of Khaybar like this?" He said,"No. By Allah, Messenger of Allah! We
take a sa of this kind for two sa or two sa for three." The Messenger
of Allah, may Allah bless him and grant him peace, said, "Do not do
that. Sell the assorted ones for dirhams and then buy the good ones
with the dirhams."
USC-MSA web (English) reference : Book 31, Hadith 21
Hadith 513140
Chapter 31: Business Transactions - كتاب البيوع
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ عَبْدِ اللَّهِ بْنِ يَزِيدَ، أَنَّ زَيْدًا أَبَا عَيَّاشٍ، أَخْبَرَهُ أَنَّهُ، سَأَلَ سَعْدَ بْنَ أَبِي وَقَّاصٍ عَنِ الْبَيْضَاءِ، بِالسُّلْتِ فَقَالَ لَهُ سَعْدٌ أَيَّتُهُمَا أَفْضَلُ قَالَ الْبَيْضَاءُ . فَنَهَاهُ عَنْ ذَلِكَ . وَقَالَ سَعْدٌ سَمِعْتُ رَسُولَ اللَّهِ صلى الله عليه وسلم يُسْأَلُ عَنِ اشْتِرَاءِ التَّمْرِ بِالرُّطَبِ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم
" أَيَنْقُصُ الرُّطَبُ إِذَا يَبِسَ " . فَقَالُوا نَعَمْ . فَنَهَى عَنْ ذَلِكَ .
Yahya related to me from Malik from Abdullah ibn Yazid that Zayd
ibn Ayyash told him that he had once asked Sad ibn Abi Waqqas about
selling white wheat for a type of good barley. Sad asked him which was
the better and when he told him the white wheat, he forbade the
transaction. Sad said, "I heard the Messenger of Allah, may Allah
bless him and grant him peace, being asked about selling dried dates
for fresh dates, and the Messenger of Allah, may Allah bless him and
grant him peace, said, 'Do the dates diminish in size when they become
dry?' When he was told that they did, he forbade that."
USC-MSA web (English) reference : Book 31, Hadith 22
Hadith 513150
Chapter 31: Business Transactions - كتاب البيوع
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم نَهَى عَنِ الْمُزَابَنَةِ وَالْمُزَابَنَةُ بَيْعُ الثَّمَرِ بِالتَّمْرِ كَيْلاً وَبَيْعُ الْكَرْمِ بِالزَّبِيبِ كَيْلاً .
Yahya related to me from Malik from Nafi from Abdullah ibn Umar
that the Messenger of Allah, may Allah bless him and grant him peace,
forbade muzabana. Muzabana was selling fresh dates for dried dates by
measure, and selling grapes for raisins by measure.
Yahya related to me from Malik from Da'ud ibn al-Husayn from Abu
Sufyan, the mawla of Ibn Abi Ahmad, from Abu Said al-Khudri that the
Messenger of Allah, may Allah bless him and grant him peace, forbade
muzabana and muhaqala. Muzabana was selling fresh dates for dried
dates while they were still on the trees. Muhaqala was renting land in
exchange for wheat.
Yahya related to me from Malik from Ibn Shihab from Said ibn al-
Musayyab that the Messenger of Allah, may Allah bless him and grant
him peace, forbade muzabana and muhaqala. Muzabana was selling fresh
dates for dried dates. Muhaqala was buying unharvested wheat in
exchange for threshed wheat and renting land in exchange for wheat.
Ibn Shihab added that he had asked Said ibn al-Musayyab about
renting land for gold and silver. He said, "There is no harm in it."
Malik said, "The Messenger of Allah, may Allah bless him and
grant him peace, forbade muzabana. The explanation of muzabana is that
it is buying something whose number, weight and measure is not known
with something whose number, weight or measure is known, for instance,
if a man has a stack of food whose measure is not known, either of
wheat, dates, or whatever food, or the man has goods of wheat, date
kernels, herbs, safflower, cotton, flax, silk, and does not know its
measure or weight or number and then a buyer approaches him and
proposes that he weigh or measure or count the goods, but, before he
does, he specifies a certain weight, or measure, or number and
guarantees to pay the price for that amount, agreeing that whatever
falls short of that amount is a loss against him and whatever is in
excess of that amount is a gain for him. That is not a sale. It is
taking risks and it is an uncertain transaction. It falls into the
category of gambling because he is not buying something from him for
something definite which he pays. Everything which resembles this is
also forbidden."
Malik said that another example of that was,
for instance, a man proposing to another man, "You have cloth. I will
guarantee you from this cloth of yours so many hooded cloaks, the
measureof each cloak to be such-and-such, (naming a measurement).
Whatever loss there is, is against me and I will fulfill you the
specified amount and whatever excess there is, is mine." Or perhaps
the man proposed, "I will guarantee you from this cloth of yours so
many shirts, the measurement of each shirt to be such-and-such, and
whatever loss there is, is against me and I will fulfill the specified
amount and whatever excess there is, is mine." Or perhaps a man
proposed to a man who had cattle or camel hides, "I will cut up these
hides of yours into sandals on a pattern I will show you. Whatever
falls short of a hundred pairs, I will make up its loss and whatever
is over is mine because I guaranteed you." Another example was that a
man say to a man who had ben-nuts, "I will press these nuts of yours.
Whatever falls short of such-and-such a weight by the pound, I will
make it up, and whatever is more than that is mine."
Malik
said that all this and whatever else was like it or resembled it was
in the category of muzabana, which was neither good nor permitted. It
was also the same case for a man to say to a man, who had fodder
leaves, date kernels, cotton, flax, herbs or safflower, "I will buy
these leaves from you in exchange for such-and-such a sa, (indicating
leaves which are pounded like his leaves) . . or these date kernels
for such-and-such a sa of kernels like them, and the like of that in
the case of safflower, cotton, flax and herbs."
Malik said,
"All this is what we have described of muzabana."
USC-MSA web (English) reference : Book 31, Hadith 25
Hadith 513180
Chapter 31: Business Transactions - كتاب البيوع
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ يَحْيَى بْنِ سَعِيدٍ، أَنَّهُ قَالَ أَمَرَ رَسُولُ اللَّهِ صلى الله عليه وسلم السَّعْدَيْنِ أَنْ يَبِيعَا آنِيَةً مِنَ الْمَغَانِمِ مِنْ ذَهَبٍ أَوْ فِضَّةٍ فَبَاعَا كُلَّ ثَلاَثَةٍ بِأَرْبَعَةٍ عَيْنًا أَوْ كُلَّ أَرْبَعَةٍ بِثَلاَثَةٍ عَيْنًا فَقَالَ لَهُمَا رَسُولُ اللَّهِ صلى الله عليه وسلم " أَرْبَيْتُمَا فَرُدَّا
Yahya related to me from Malik that Yahya ibn Said said, "The
Messenger of Allah, mayAllah bless him and grant him peace, ordered
the two Sads to sell a vessel made of either gold or silver from the
booty. They either sold each three units of weight for four units of
weight of coins or each four units of weight for three units of weight
or coins. The Messenger of Allah, may Allah bless him and grant him
peace, said to them, 'You have taken usury, so return it.' "
USC-MSA web (English) reference : Book 31, Hadith 28
Hadith 513190
Chapter 31: Business Transactions - كتاب البيوع
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ مُوسَى بْنِ أَبِي تَمِيمٍ، عَنْ أَبِي الْحُبَابِ، سَعِيدِ بْنِ يَسَارٍ عَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" الدِّينَارُ بِالدِّينَارِ وَالدِّرْهَمُ بِالدِّرْهَمِ لاَ فَضْلَ بَيْنَهُمَا " .
Yahya related to me from Malik from Musa ibn Abi Tamim from Abu'l
Hubab Said ibn Yasar from Abu Hurayra that the Messenger of Allah, may
Allah bless him and grant him peace, said, "A dinar for a dinar, a
dirham for a dirham, no excess between the two."
Yahya related to me from Malik from Nafi from Abu Said al-Khudri
that the Messenger of Allah, may Allah bless him and grant him peace,
said, "Do not sell gold for gold except like for like and do not
increase one part over another part. Do not sell silver for silver,
except like for like and do not increase one part over another part.
Do not sell some of it which is not there for some of it which is."
Yahya related to me from Malik from Humayd ibn Qays al-Makki that
Mujahid said, "I was with Abdullah ibn Umar and an artisan came to him
and said, 'Abu Abd ar-Rahman - I fashion gold and then sell what I
have made for more than its weight. I take an amount equivalent to the
work of my hand.' Abdullah forbade him to do that, so the artisan
repeated the question to him, and Abdullah continued to forbid him
until he came to the door of the mosque or to an animal that he
intended to mount. Then Abdullah ibn Umar said, 'A dinar for a dinar,
and a dirham for a dirham. There is no increase between them. This is
the command of ourProphet to us and our advice to you.' "
USC-MSA web (English) reference : Book 31, Hadith 31
Hadith 513220
Chapter 31: Business Transactions - كتاب البيوع
وَحَدَّثَنِي عَنْ مَالِكٍ، أَنَّهُ بَلَغَهُ عَنْ جَدِّهِ، مَالِكِ بْنِ أَبِي عَامِرٍ أَنَّ عُثْمَانَ بْنَ عَفَّانَ،
قَالَ قَالَ لِي رَسُولُ اللَّهِ صلى الله عليه وسلم
" لاَ تَبِيعُوا الدِّينَارَ بِالدِّينَارَيْنِ وَلاَ الدِّرْهَمَ بِالدِّرْهَمَيْنِ " .
Yahya related to me from Malik that he had heard from his
grandfather, Malik ibn Abi Amir that Uthman ibn Affan said, "The
Messenger of Allah, may Allah bless him and grant him peace, said to
me, 'Do not sell a dinar for two dinars nor a dirham for two dirhams.'
"
Yahya related to me from Malik from Zayd ibn Aslam from Ata ibn
Yasar that Muawiya ibn Abi Sufyan sold a gold or silver drinking-
vessel for more than its weight. Abu'dDarda said, "I heard the
Messenger of Allah, may Allah bless him and grant him peace,
forbidding such sales except like for like." Muawiya said to him, "I
don't see any harm in it." Abu'd-Darda said to him, "Who will excuse
me from Muawiya? I tell him something from the Messenger of Allah, may
Allah bless him and grant him peace, and he gives me his own opinion!
I will not live in the same land as you!" Then Abu'd-Darda went to
Umar ibn al-Khattab and mentioned that to him. Umar ibn al-Khattab
therefore wrote to Muawiya, "Do not sell it except like for like,
weight for weight."
Yahya related to me from Malik from Nafi from Abdullah ibn Umar
that Umar ibn al-Khattab said, "Do not sell gold for gold except like
for like, and do not increase one part over another part. Do not sell
silver for silver except like for like, and do not increase one part
over another part. Do not sell silver for gold, one of them at hand
and the other to be given later. If someone seeks to delay paying you
until he has been to his house, do not leave him. I fear rama for
you." Rama is usury.
Yahya related to me from Malik from Abdullah ibn Dinar from
Abdullah ibn Umar that Umar ibn al-Khattab said, "Do not sell gold for
gold except like for like. Do not increase part of it over another
part. Do not sell silver for silver except like for like, and do not
increase part of it over another part. Do not sell some of it which is
there for some of it which is not. If someone asks you to wait for
payment until he has been to his house, do not leave him. I fear rama
for you." Rama is usury.
Yahya related to me from Malik that he had heard that al-Oasim
ibn Muhammad said, ''Umar ibn al-Khattab said, 'A dinar for a dinar,
and a dirham for adirham, and a sa for a sa. Something to be collected
later is not to be sold for something at hand. ' "
Yahya related to me from Malik that Abu'z-Zinad heard Said ibn
al-Musayyab say, "There is usury only in gold or silver or what is
weighed or measured of what is eaten or drunk."
Yahya related to me from Malik that Yahya ibn Said heard Said ibn
al-Musayyab say, "Keeping gold and silver out of circulation is part
of working corruption in the land."
Malik said, "There is no
harm in buying gold with silver or silver with gold without measuring
if it is unminted or a piece of jewellery which has been made. Counted
dirhams and counted dinars should not be bought without reckoning
until they are known and counted. To abandon number and buy them at
random would only be to speculate. That is not part of the business
transactions of Muslims. As for what is weighed of unminted objects
and jewellery, there is no harm in buying such things without
measuring. To buy them without measuring is like buying wheat, dried
dates, and such food-stuffs, which are sold without measuring, even
though things like them are measured "
Malik spoke about
buying a Qur'an, a sword or a signet ring which had some gold or
silver work on it with dinars or dirhams. He said, "The value of the
object bought with dinars, which has gold in it is looked at. If the
value of the gold is up to one-third of the price, it is permitted and
there is no harm in it if the sale is hand to hand and there is no
deferment in it. When something is bought with silver which has silver
in it, the value is looked at. If the value of the silver is one-
third, it is permitted and there is no harm in it if the sale is hand
to hand. That is still the way of doing things among us."
Yahya related to me from Malik from Ibn Shihab from Malik ibn Aus
ibn al-Hadathan an-Nasri that one time he asked to exchange 100
dinars. He said, "Talha ibn Ubaydullah called me over and we made a
mutual agreement that he would make an exchange for me. He took the
gold and turned it about in his hand, and then said, 'I can't do it
until my treasurer brings the money to me from al-Ghaba.' Umar ibn al-
Khattab was listening and Umar said, 'By Allah! Do not leave him until
you have taken it from him!' Then he said, 'The Messenger of Allah,
may Allah bless him and grant him peace, said, "Gold for silver is
usury except hand to hand. Wheat for wheat is usury except hand to
hand. Dates for dates is usury except hand to hand. Barley for barley
is usury except hand to hand." "'
Malik said, "When a man
buys dirhams with dinars and then finds a bad dirham among them and
wants to return it, the exchange of the dinars breaks down, and he
returns the silver and takes back his dinars. The explanation of what
is disapproved of in that is that the Messenger of Allah, may Allah
bless him and grant him peace, said, 'Gold for silver is usury except
hand to hand.' and Umar ibn al-Khattab said, 'If someone asks you to
wait to be paid until he has gone back to his house, do not leave
him.' When he returns a dirham to him from the exchange after he has
left him, it is like a debt or something deferred. For that reason, it
is disapproved of, and the exchange collapses. Umar ibn al-Khattab
wanted that all gold, silver and food should not be sold for goods to
be paid later. He did not want there to be any delay or deferment in
any such sale, whether it involved one commodity or different sorts of
commodities."
Yahya related to me from Malik that Yazid ibn Abdullah ibn Qusayt
saw Said ibn al-Musayyab sell gold counterpoising for gold. He poured
his gold into one pan of the scales, and the man with whom he was
counterpoising put his gold in the other pan of the scale and when the
tongue of the scales was balanced, they took and gave.
Malik
said, "According to the way things are done among us there is no harm
in selling gold for gold, and silver for silver by counterpoising
weight, even if 11 dinars are taken for 10 dinars hand to hand, when
the weight of gold is equal, coin for coin, even if the number is
different. Dirhams in such a situation are treated the same way as
dinars."
Malik said, "If, when counterpoising gold for gold
or silver for silver, there is a difference of weight, one party
should not give the other the value of the difference in silver or
something else. Such a transaction is ugly and a means to usury
because if one of the parties were permitted to take the difference
for a separate price, it could be as if he had bought it separately,
so he would be permitted. Then it would be possible for him to ask for
many times the value of the difference in order to permit the
completion of the transaction between the two parties.
Malik
said, "If he had really been sold the difference without anything else
with it, he would not have taken it for a tenth of the price for which
he took it in order to put a 'legal front' on the transaction. This
leads to allowing what is forbidden . The matter is forbidden."
Malik said that it was not good when counterpoising to give good
old gold coins and put along with them unminted gold in exchange for
worn kufic gold, which was unpopular and to then treat the exchange as
like for like.
Malik said, "The commentary on why that is
disapproved is that the owner of the good gold uses the excellence of
his old gold coins as an excuse to throw in the unminted gold with it.
Had it not been for the superiority of his (good) gold over the gold
of the other party, the other party would not have counterpoised the
unminted gold for his kufic gold, and the deal would have been
refused.
"It is like a man wanting to buy three sa of ajwa
dried dates for two sa and a mudd of kabis dates, and on being told
that it was not good, then offering two sa of kabis and a sa of poor
dates desiring to make the sale possible. That is not good because the
owner of the ajwa should not give him a sa of ajwa for a sa of poor
dates. He would only give him that because of the excellence of kabis
dates.
"Or it is like a man asking some one to sell him three
sa of white wheat for two and a half sa of Syrian wheat, and being
told that it was not good except like for like, and so offering two sa
of wheat and one sa of barley intending to make the sale possible
between them. That is not good because no one would have given a sa of
barley for a sa of white wheat had that sa been by itself. It was only
given because of the excellence of Syrian wheat over the white wheat.
This is not good. It is the same as the case of the unminted gold."
Malik said, "Where gold, silver and food, things which should
only be sold like for like, are concerned, something disliked and of
poor quality should not be put with something good and desirable in
order to make the sale possible and to make a bad situation halal.
When something of desirable quality is put with something of poor
quality and it is only included so that its excellence in quality is
noticed, something is being sold which if it had been sold on its own,
would not have been accepted and to which the buyer would not have
paid any attention. It is only accepted by the buyer because of the
superiority of what comes with it over his own goods. Transactions
involving gold, silver, or food, must not have anything of this
description enter into them. If the owner of the poor quality goods
wants to sell them, he sells them on their own, and does not put
anything with them. There is no harm if it is like that."
USC-MSA web (English) reference : Book 31, Hadith 39
Hadith 513310
Chapter 31: Business Transactions - كتاب البيوع
حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" مَنِ ابْتَاعَ طَعَامًا فَلاَ يَبِعْهُ حَتَّى يَسْتَوْفِيَهُ " .
Yahya related to me from Malik from Nafi from Abdullah ibn Umar
that the Messenger of Allah, may Allah bless him and grant him peace,
said, "Someone who buys food, must not resell it until he takes
delivery of it all."
USC-MSA web (English) reference : Book 31, Hadith 40
Hadith 513320
Chapter 31: Business Transactions - كتاب البيوع
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ عَبْدِ اللَّهِ بْنِ دِينَارٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ
" مَنِ ابْتَاعَ طَعَامًا فَلاَ يَبِعْهُ حَتَّى يَقْبِضَهُ " .
Yahya related to me from Malik from Abdullah ibn Dinar from
Abdullah ibn Umar that the Messenger of Allah, may Allah bless him and
grant him peace, said, "Someone who buys food, must not sell it until
he takes possession of it."
USC-MSA web (English) reference : Book 31, Hadith 41
Hadith 513330
Chapter 31: Business Transactions - كتاب البيوع
وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ، أَنَّهُ قَالَ كُنَّا فِي زَمَانِ رَسُولِ اللَّهِ صلى الله عليه وسلم نَبْتَاعُ الطَّعَامَ فَيَبْعَثُ عَلَيْنَا مَنْ يَأْمُرُنَا بِانْتِقَالِهِ مِنَ الْمَكَانِ الَّذِي ابْتَعْنَاهُ فِيهِ إِلَى مَكَانٍ سِوَاهُ قَبْلَ أَنْ نَبِيعَهُ .
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said, "In the time of the Messenger of Allah, may Allah bless him and
grant him peace, we used to buy food. He sent orders for us to move
our purchases from the place in which we purchased them to another
place before we re-sold them."
Yahya related to me from Malik from Nafi that Hakim ibn Hizam
traded in food for people as Umar ibn al-Khattab had ordered him to
do. Hakim re-sold the food before he had taken delivery of it. That
reached Umar ibn al-Khattab and he revoked the sale and said, "Do not
sell food which you have purchased until you take delivery of it."
Yahya related to me from Malik that he had heard that receipts
were given to people in the time of Marwan ibn al-Hakam for the
produce of the market at al-Jar. People bought and sold the receipts
among themselves before they took delivery of the goods. Zayd Thabit
and one of the Companions of the Messenger of Allah, may Allah bless
him and grant him peace, went to Marwan ibn al-Hakam and said,
"Marwan! Do you make usury halal?" He said, "I seek refuge with Allah!
What is that?" He said, "These receipts which people buy and sell
before they take delivery of the goods." Marwan therefore sent a guard
to follow them and to take them from people's hands and return them to
their owners.
Yahya related to me from Malik that he had heard that a man
wanted to buy food from a man in advance. The man who wanted to sell
the food to him went with him to the market, and he began to show him
heaps, saying, "Which one would you like me to buy for you." The buyer
said to him, "Are you selling me what you do not have?" So they came
to Abdullah ibn Umarand mentioned that to him. Abdallah ibn Umar said
to the buyer, "Do not buy from him what he does not have." He said to
the seller, "Do not sell what you do not have."
Yahya related to me from Malik that Yahya ibn Said heard Jamil
ibn Abd ar-Rahman the Muadhdhin say to Said ibn al-Musayyab, "I am a
man who buys whatever Allah wills of the receipts for the provisions
which people are offered at al-Jar. I want to take payment for goods
that I guarantee to deliver at a future date." Said said to him, "Do
you intend to settle these things with receipts for provisions you
have bought?" He said, "Yes." So he forbade that.
Malik said,
"The generally agreed on way of doing things among us in which there
is no dispute, about buying food - wheat, barley, durra-sorghum, pearl
millet, or any pulse or anything resembling pulses on which zakat is
obliged, or condiments of any sort - oil, ghee, honey, vinegar,
cheese, sesame oil, milk and so on, is that the buyer should not re-
sell any of that until he has taken possession and complete delivery
of it.
Yahya related to me from Malik that Abu'z-Zinad heard Sa'id ibn
al-Musayyab andSulayman ibn Yasar forbid a man to sell wheat for gold
on delayed terms and then to buy dried dates with the gold before he
had taken delivery of the gold.
Yahya related to me from Malik that Kathir ibn Farqad asked Abu
Bakr ibn Muhammad ibn Amr ibn Hazm about a man who sold food to be
delivered at a future date to a man for gold and then with the gold,
he bought dates before he had taken delivery of the gold. He
disapproved of that and forbade it.
Yahya related to me from
Malik from Ibn Shihab the like of that.
Malik said, ''Said
ibn al-Musayyab, Sulayman ibn Yasar, Abu Bakr ibn Muhammad ibn Amr ibn
Hazm, and Ibn Shihab forbade that a man sell wheat for gold and then
buy dates with that gold before he had received the gold from the
transaction in which he sold the wheat. There is no harm for someone
to buy dates on delayed terms, on the strength of the gold for which
he sold the wheat, from someone other than the person to whom he sold
the wheat before taking possession of the gold, and to refer the one
from whom he bought the dates to his debtor who bought the wheat, for
the gold he is owed for the dates."
Malik said, "I asked more
than one of the people of knowledge about that and they did not see
any harm in it."
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
said that there was no harm in a man making an advance to another man
for food, with a set description and price until a set date, as long
as it was not in crops, or dates which had not begun to ripen.
Malik said, "The way of doing things among us concerning someone
who makes an advance for foodstuffs at a known rate until a stated
date, and the date arrives and he finds that there is not enough of
what he was sold with the seller to fulfill his order, and so he
revokes the sale, is that he must only take back the silver, gold, or
price which he paid exactly. He does not buy anything else from the
man for the same price until he has got back what he paid. That is
because if he took something else besides the price which he paid him
or exchanged it for goods other than the goods which he bought from
him, it would be selling food before getting delivery of it."
Malik said, "The Messenger of Allah, may Allah bless him and grant him
peace, forbade selling food before getting delivery of it."
Malik said that it was not good if the buyer regretted his purchase
and asked the seller to revoke the sale for him and he would not press
him immediately for what he had paid. The people of knowledge forbade
that. That was because when the food was made ready for the buyer by
the seller, the buyer deferred his due from the seller in order that
he might revoke the sale for him. That was the sale of food with
delayed terms before taking delivery of the food.
Malik said,
"The explanation of that is that when the date of delivery comes and
the buyer dislikes the food, the seller takes by it money to be paid
later and so it is not revocation. Revocation is that in which neither
the buyer nor the seller is increased. When increase occurs by
deferment of payment for a time period, or by anything which increases
one of them over the other or anything which gives one of them profit,
it is not revocation. When either of them do that, revocation becomes
a sale. There is an indulgence for revocation, partnership, and
transfer, as long as i ncrease, decrease, or deferment does not come
into them. If increase, decrease, or deferment comes into it, it
becomes a sale. Whatever makes a sale halal makes it halal and
whatever makes a sale haram makes it haram."
Malik said, "If
someone pays in advance for Syrian wheat, there is no harm if he takes
a load after the term falls due."
Malik said, "It is the same
with whoever advances for any kind of thing. There is no harm in him
taking better than whatever he has made an advance for or worse than
it after the agreed delivery date. The explanation of that is that if,
for instance, a man advances for a certain weight of wheat. There is
no harm if he decides to take some barley or Syrian wheat. If he has
made an advance for good dates, there is no harm if he decides to take
poor quality dates. If he paid in advance for red raisins, there is no
harm if he takes black ones, when it happens after the agreed delivery
date, and when the measure of what he takes is like the measure of
what he paid for in advance."
Yahya related to me from Malik that he had heard that Sulayman
ibn Yasar said, "The fodder of the donkeys of Saad ibn Abi Waqqas ran
out and so he told his slave to take some of the family's wheat and
buy barley with it, and to only take a like quantity."
Yahya related to me from Malik from Nafi that Sulayman ibn Yasar
told him that one time the fodder of the animals of Abd ar-Rahman ibn
al-Aswad ibn Abd Yaghuth was finished so he said to his slave, "Take
some of your family's wheat as food and buy with it barley, and take
only a like quantity.' "
Yahya related to me from Malik that he had heard the same as that
from al-Qasim ibn Muhammad from Ibn Muayqib ad-Dawsi.
Malik
said, "This is the way of doing things among us . "
Malik
said, "The generally agreed on way of doing things among us is that
wheat is not sold for wheat, dates for dates, wheat for dates, dates
for raisins, wheat for raisins, nor any kind of food sold for food at
all, except from hand to hand. If there is any sort of delayed terms
in the transaction, it is not good. It is haram. Condiments are not
bartered except from hand to hand."
Malik said, "Food and
condiments are not bartered when they are the same type, two of one
kind for one of the other. A mudd of wheat is not sold for two mudds
of wheat, nor a mudd of dates for two mudds of dates, nor a mudd of
raisins for two mudds of raisins, nor is anything of that sort done
with grains and condiments when they are of one kind, even if it is
hand to hand.
"This is the same position as silver for silver
and gold for gold. No increase is halal in the transaction, and only
like for like, from hand to hand is halal."
Malik said, "If
there is a clear difference in foodstuffs which are measured and
weighed, there is no harm in taking two of one kind for one of
another, hand to hand. There is no harm in taking a sa of dates for
two sa of wheat, and a sa of dates for two sa of raisins, and a sa of
wheat for two sa of ghee. If the two sorts in the transaction are
different, there is no harm in two for one or more than that from hand
to hand. If delayed terms enter into the sale, it is not halal ."
Malik said, "It is not halal to trade a heap of wheat for a heap
of wheat. There is no harm in a heap of wheat for a heap of dates,
from hand to hand. That is because there is no harm in buying wheat
with dates without precise measurement."
Malik said, "With
kinds of foods and condiments that differ from each other, and the
difference is clear, there is no harm in bartering one kind for
another, without precise measurement from hand to hand. If delayed
terms enter into the sale, there is no good in it. Bartering such
things without precise measurement is like buying it with gold and
silver without measuring precisely."
Malik said, "That is
because you buy wheat with silver without measuring precisely, and
dates with gold without measuring precisely, and it is halal. There is
no harm in it."
Malik said, "It is not good for someone to
make a heap of food, knowing its measure and then to sell it as if it
had not been measured precisely, concealing its measure from the
buyer. If the buyer wants to return that food to the seller, he can,
because he concealed its measure and so it is an uncertain
transaction. This is done with any kind of food or other goods whose
measure and number the seller knows, and which he then sells without
measurement and the buyer does not know that. If the buyer wants to
return that to the seller, he can return t. The people of knowledge
still forbid such a transaction."
Malik said, "There is no
good in selling one round loaf of bread for two round loaves, nor
large for small when some of them are bigger than others. When care is
taken that they are like for like, there is no harm in the sale, even
if they are not weighed."
Malik said, "It is not good to sell
a mudd of butter and a mudd of milk for two mudds of butter. This is
like what we described of selling dates when two sa of kabis and a sa
of poor quality dates were sold for three sa of ajwa dates after the
buyer had said to the seller, 'Two sa of kabis dates for three sa of
ajwa dates is not good,' and then he did that to make the transaction
possible. The owner of the milk puts the milk with his butter so that
he can use the superiority of his butter over the butter of the other
party to put his milk in with it."
Malik said, "Flour for
wheat is like for like, and there is no harm in that. That is if he
does not mix up anything with the flour and sell it for wheat, like
for like. Had he put half a mudd of flour and half of wheat, and then
sold that for a mudd of wheat, it would be like what we described, and
it would not be good because he would want to use the superiority of
his good wheat to put flour along with it. Such a transaction is not
good."
Yahya related to me from Malik that Muhammad ibn Abdullah ibn Abi
Maryam asked Said ibn al-Musayyab's advice. "I am a man who buys food
with receipts from al-Jar. Perhaps I will buy something for a dinar
and half a dirham, and will be given food for a half." Said said, "No.
You give a dirham, and take the rest in food." (A half dirham did not
exist as a coin.)
Yahya related to me from Malik that he had heard that Muhammad
Sirin used to say, "Do not sell grain on the ears until it is white."
Malik said, "If someone buys food for a known price to be
delivered at a stated date, and when the date comes, the one who owes
the food says, 'I do not have any food, sell me the food which I owe
you with delayed terms.' The owner of the food says, 'This is not
good, because the Messenger of Allah, may Allah bless him and grant
him peace, forbade selling food until the deal was completed.' The one
who owes the food says to his creditor, 'Sell me any kind of food on
delayed terms until I discharge the debt to you.' This is not good
because he gives him food and then he returns it to him. The gold
which he gave him becomes the price of that which is his right against
him and the food which he gave him becomes what clears what is between
them. If they do that, it becomes the sale of food before the deal is
complete."
Malik spoke about a man who was owed food which he
had purchased from a man and this man was owed the like of that food
by another man. The one who owed the food said to his creditor, "I
will refer you to my debtor who owes me the same amount of food as I
owe you, so that you may obtain the food which I owe you ."
Malik said, "If the man who had to deliver the food, had gone out, and
bought the food to pay off his creditor, that is not good. That is
selling food before taking possession of it. If the food is an advance
which falls due at that particular time, there is no harm in paying
off his creditor with it because that is nota sale. It is not halal to
sell food before receiving it in full since the Messenger of Allah,
may Allah bless him and grant him peace, forbade that. However, the
people of knowledge agree that there is no harm in partnership,
transfer of responsibility and revocation in sales of food and other
goods."
Malik said, "That is because the people of knowledge
consider it as a favour rendered. They do not consider it as a sale.
It is like a man lending light dirhams. He is then paid back in
dirhams of full weight, and so gets back more than he lent. That is
halal for him and permitted. Had a man bought defective dirhams from
him as being the full weight, that would not be halal. Had it been
stipulated to him that he lend full weight in dirhams, and then he
gave faulty ones, that would not be halal for him."
Yahya related to me from Malik that he had heard that Umar ibn
al-Khattab said, "There is no hoarding in our market, and men who have
excess gold in their hands should not buy up one of Allah's provisions
which he has sent to our courtyard and then hoard it up against us.
Someone who brings imported goods through great fatigue to himself in
the summer and winter, that person is the guest of Umar. Let him sell
what Allah wills and keep what Allah wills."
Yahya related to me from Malik from Yunus ibn Yusuf from Said ibn
al-Musayyab that Umar ibn al-Khattab passed by Hatab ibn Abi Baltaa
who was underselling some of his raisins in the market. Umar ibn al-
Khattab said to him, "Either increase the price or leave our market."
Yahya related to me from Malik from Salih ibn Kaysan from Hasan
ibn Muhammad ibn Ali ibn Abi Talib that Ali ibn Abi Talib sold one of
his camels called Usayfir for 20 camels to be delivered later.
Yahya related to me from Malik from Nafi that Abdullah ibn Umar
bought a female riding-camel for four camels and he guaranteed to give
them in full to the buyer at ar-Rabadha.
Yahya related to me that Malik asked Ibn Shihab about selling
animals, two for one with delayed terms. He said, "There is no harm in
it."
Malik said, "The generally agreed on way of doing things
among us is that there is no harm in bartering a camel for a camel
like it and adding some dirhams to the exchange, from hand to hand.
There is no harm in bartering a camel for a camel like it with some
dirhams on top of the exchange, the camels to be exchanged from hand
to hand, and the dirhams to be paid within a period." He said, "There
is no good however in bartering a camel for a camel like it with some
dirhams on top of it, with the dirhams paid in cash and the camel to
be delivered later. If both the camel and the dirhams are deferred
there is no good in that either."
Malik said, "There is no
harm in buying a riding camel with two or more pack-camels, if they
are from inferior stock. There is no harm in bartering two of them for
one with delayed terms, if they are different and their difference is
clear. If they resemble each other whether their species are different
or not, two are not to be taken for one with delayed terms."
Malik said, "The explanation of what is disapproved of in that, is
that a camel should not be bought with two camels when there is no
distinction between them in speed or hardiness. If this is according
to what I have described to you, then one does not buy two of them for
one with delayed terms. There is no harm in selling those of them you
buy before you complete the deal to somebody other than the one from
whom you bought them if you get the price in cash."
Malik
said, "It is permitted for someone to advance something on animals for
a fixed term and describe the amount and pay its price in cash.
Whatever the buyer and seller have described is obliged for them. That
is still permitted behaviour between people and what the people of
knowledge in our land do."
Yahya related to me from Malih from Nafi from Abdullah ibn Umar
that the Messenger of Allah, may Allah bless him and grant him peace,
forbade the transaction called habal alhabala. It was a transaction
which the people of Jahiliya practised. A man would buy the unborn
offspring of the unborn offspring of a she-camel.